Nabors Drilling (Labuan) Corporation v Lembaga Perkhidmatan Kewangan Labuan (01(i)-25-09/2019 (S))

Labuan Business Activity Tax Act 1990 [Act 445];

Labuan Trusts Act 1996 [Act 554];

Labuan Foundations Act 2010 [Act 706];

Labuan Islamic Financial Services and Securities Act 2010 [Act 705];

Labuan Limited Partnerships and Limited Liability Partnerships Act 2010 [Act 707]; 3

Labuan Financial Services and Securities Act 2010 [Act 704]. [2] On 17/06/2002, the respondent granted a licence to the appellant to undertake a leasing business in Labuan under section 92 of the Labuan Financial Services and Securities Act (“Financial Services and Securities Act”) and also gave its approval to the appellant to deal with Pool International (M) Sdn. Bhd. That licence was, on the appellant’s own application, terminated on 22/01/2010 by the respondent when the appellant ceased its leasing business activity in Labuan but which business was rejuvenated subsequently by the respondent’s grant of another licence to the appellant, upon the latter’s application, on 13/07/2011. Vide the same letter the appellant was granted an approval by the respondent to lease one unit of an offshore platform drilling rig, i.e. Rig 488 to NDIL Malaysia Sdn. Bhd (“Ndil Malaysia”) and payment of the requisite fees of RM60,000.00 as stipulated under the Labuan Financial Services and Securities Regulations 2010 (“the Regulations”) was made by the appellant. [3] The crux of this litigation woe lies not with the said leasing of Rig 488 but a subsequent one to the same company, that is Rig 503 which was done without the approval of the respondent and without payment 4 of the requisite fees of RM20,000.00. RM20,000.00 is the stipulated fee under the Regulation for a subsequent transaction with a Malaysian resident, which NDIL Malaysia is. The appellant’s belated application for approval made in its letter dated 28/10/2013, but served on the respondent on 24/1/2014 was rejected by the respondent on 6/5/2014. Likewise its two appeals against that rejection made on its own and through its agent, Deloitte, respectively, after the appellant was ordered to pay a penalty of RM10,000 via the respondent’s letter dated 27/6/2014 for the said business transgression. [4] The appellant did not give up on its endeavor to get the approval from the respondent for the lease of Rig 503 and its third attempt actually bore fruit when the respondent acceded to its request on 9/4/2015 and granted the approval upon payment of RM20,000.00 but that approval was not made retrospective. The appellant accepted the decision and effected the payment. However, three months after the said approval, the appellant filed a judicial review application before the High Court for, inter alia, a certiorari to quash that decision of the respondent which the learned High Court Judge (“HCJ”) (as His Lordship then was) dismissed and which decision was affirmed by the Court of Appeal on appeal. On 22/8/2019, the appellant was granted 5 leave to appeal to this Court against the said decision on this one question of law: “Is Paragraph 8.2 of the 2013 Guidelines on the Establishment and Operations of Labuan Leasing Business contrary to and ultra vires of Section 7(6) of the Labuan Companies Act 1990?” [5] In its judicial review application, the appellant had included as one of its prayers, a declaration that the above mentioned Guidelines do not have the force of law for it serves only to clarify the requirements under the Financial Services and Securities Act. Before delving into the matter further, it is best to first mention, as did the learned HCJ in his judgment, that the above Guidelines are issued by the respondent under section 4A of the Securities Authorities Act which reads as follows: “4A. Power to issue guidelines.

The Authority may, in respect of this Act or the laws specified in the Schedule or any other matter relating to Labuan financial services, issue guidelines to clarify any provision of this Act or the laws specified in the Schedule to facilitate compliance with the law by a Labuan financial institution or any other matters relating to Labuan financial services.

The Authority may amend or revoke any guideline issued under this section.” 6 [6] Paragraph 8.2 of the Guidelines reads: “8.2 Subsequent leasing transactions with Malaysian residents are subject to Labuan FSA’s prior approval and payment of subsequent transaction fee.” The relevant provisions of Section 7 of the Act reads: “7. Permitted purpose for incorporation.

A Labuan company may be incorporated for any lawful purpose and, subject to any other written laws on financial services applicable to Labuan, shall carry out business only in, from or through Labuan.

Subject to subsection (3), a Labuan company may carry on a business with a resident. ......... .........

Where a Labuan company carries on a business with a resident, the Labuan company shall notify the Authority of any transactions between the Labuan company and the resident within ten working days of such transactions.

Notwithstanding subsection (5), a Labuan company is not required to notify the Authority of transactions between the Labuan company and the resident where –

the Labuan company carries on any licensed activity with a resident under the Labuan Financial Services 7 and Securities Act 2010 or the Labuan Islamic Financial Services and Securities Act 2010.” Judgment Of The High Court [7] The learned HCJ held that the Guidelines are not inconsistent with section 7(6) of the Act or any other Labuan laws because the said section 7 is a general provision on a Labuan company’s limitation when carrying out business with a resident and not specifically with a Labuan company with a leasing licence. On the other hand, the LFSS Regulations specifically deals with collection of fees by the respondent as authorised by section 189 of the Financial Services and Securities Act upon approval of a leasing transaction and a subsequent one. [8] His Lordship further held that the Guidelines have the force of law unless it contradicts the primary legislation for the reason that the respondent has been empowered to enforce all the Labuan Acts as enumerated earlier and was given the power to issue guidelines “to clarify any provision” of the said Labuan Acts or ‘any other matters relating to Labuan financial services.” The requirement to obtain its approval for a subsequent leasing transaction falls squarely within that authority of the respondent. It stands to reason, said His Lordship that a regulatory authority that is statutorily empowered by Parliament should be allowed to issue guidelines and collect fees and 8 furthermore, the appellant had accepted the leasing licence with conditions, one of which is compliance with the Guidelines and the Regulations. Therefore, said His Lordship, it cannot seek relief to overturn the conditions stated in the licence. [9] Lastly, the learned HCJ held that the respondent’s refusal to grant retrospective approval was not an unreasonable exercise of administrative power as held in Associated Provincial Pictures Houses Ltd. v. Wednesbury Corporation [1948] 1 KB 223 considering that the appellant had inordinately delayed seeking that approval by about 20 months and there had been earlier rejections of the retrospective approval sought by the appellant vide the respondent’s letter dated 06/05/2014 and 16/12/2014. The Court Of Appeal Judgment [10] The Court of Appeal’s reasons for dismissing the appellant’s appeal are contained in paragraphs 17 – 20 of the judgment which we would reproduced below: “[17] We found no merit in the argument. First of all, the respondent, being the central regulatory, supervisory and enforcement authority of the Labuan International Business and Financial Centre, has the power to issue the Guidelines pursuant to section 4A of the LFSAA. 9 We agree with learned counsel for the respondent that there is nothing ultra vires or unlawful about the requirement for payment of fee and to obtain the respondent’s approval for every subsequent leasing transaction. In fact, the respondent itself in its Affidavit (2) admitted that “... the payment of the RM20,000 is correct in law, as subsequent leasings require payment to the Respondent...” [18] It is clear to us that Item 8.2 of the Guidelines, which stipulates that “Subsequent leasing transactions with Malaysian residents are subject to Labuan FSA’s prior approval and payment of subsequent transaction fee”, is intra vires the respondent’s powers and functions and is not inconsistent with the provisions of the LCA, the LFSAA and the LFSSR. In fact, the LFSSR makes it clear that approval for all Labuan leasing transactions is required, be it first leasing transactions or subsequent leasing transactions, or with residents or non-residents. However, a fee is only payable for leasing transactions involving Malaysian residents. [19] Further, the authority to collect fees for a subsequent leasing transaction with a resident is already provided for in the third schedule of the LFSSR. Section 7(6) of the LCA merely provides generally that for any licensed activity, notification is not required in respect of transactions with a Malaysian resident. It is stretching the argument to suggest that since not even a notification is required by section 7(6) of the LCA, it follows that no approval is required for any subsequent leasing transaction, notwithstanding Item 8.2 of the Guidelines. [20] In any event, the LFSSA being a specific legislation which “provide for the licensing and regulation of financial and securities in Labuan”, it prevails over the LCA with regard to Labuan licensed activities, which includes leasing business as carried out by the respondent. The maxim generalia specialibus non derogant applies. The learned judge was therefore right in holding that section 8.2 of the Guidelines does not contradict section 7(6) of the LCA.” 10 The Appeal [11] In an effort to persuade us to depart from that concurrent decisions of the lower courts, learned counsel for the appellant had in his submission taken us through the legislative history governing the financial services in Labuan particularly on the requirement of approval before conducting such a business. It started off with section 7(1) and 7(3) of the Offshore Companies Act 1990 which require an offshore company to obtain the permission of the Registrar before it could conduct any business with a resident of Malaysia. Section 23A of the Offshore Banking Act 1990 read with section 23B requires registration of an offshore financial business before the business can be conducted. Section 2 of the Labuan Business Activity Tax Act 1990 defines a Labuan company as one incorporated under the Act and includes a foreign Labuan company registered under the Act. [12] The first two Acts mentioned above have been repealed and replaced with the Act where, as reproduced earlier, under section 7(5), the requirement for approval of the Registrar has been substituted with a requirement to notify the Authority, that is the respondent as qualified by section 7(6). These new legislative provisions submitted learned counsel for the appellant show liberalization of the law where now under section 7(6) there is not even a requirement to notify the 11 respondent of the transactions between a Labuan company and a resident for a licensed activity under the Financial Services Authority Act. The Financial Services Authority Act, submitted learned counsel further, does not prescribe a requirement for any leasing transaction either with a resident or with any party to be specifically approved by it, only that under section 87 thereof the party intending to do that business must obtain a licence from the respondent and the respondent is entitled under section 189 to collect licence/fees from the successful applicant. Therefore the Guidelines made under the Regulations which is subsidiary to it cannot impose the requirement for the approval especially when viewed in the light of section 196 of the Financial Services and Securities Act which provides as follows: “Section 196 The Minister may, on the recommendation of the Authority, make regulations prescribing all matters and things required by this Act to be prescribed or provided, for the carrying out of, or giving full effect to, the provisions of this Act.” [13] The aforesaid power, according to learned counsel only allows the Minister to issue regulations on any matters that are required to be prescribed or provided for in the said Act but does not entitle him to make any additional requirements unless that is specifically provided for in the Financial Services and Securities Act which only requires, as 12 stated earlier, a licence. Learned counsel referred to this Court’s decision in Palm Oil Research and Development Board Malaysia & Anor v. Premium Vegetable Oils Sdn. Bhd. & another appeal [2005] 3 MLJ 97, which held that it is a well settled principle that a provision in a statute conferring power on a member of the Executive to enact subsidiary legislation must be construed strictly and following the decision of Kerajaan Malaysia v. Wong Pot Heng & Anor. [1997] 1 MLJ 437, a person is empowered to make subsidiary legislation only when the parent Act provides the person with such power. He also raised section 23 of the Interpretation Acts 1948 and 1967 which clearly provides: “23. Avoidance of subsidiary legislation in case of inconsistency with Act.

Any subsidiary legislation that is inconsistent with an Act (including the Act under which the subsidiary legislation was made) shall be void to the extent of the inconsistency.

For the purposes of subsection (1), any subsidiary legislation made under an Act is not inconsistent with that Act or any other Act merely by reason of the absence in the Act under which it is made of any provision relating to the commencement, application, operation, interpretation or construction of the subsidiary legislation or to any other matter in connection with such subsidiary legislation if provisions relating to the commencement, application, operation, interpretation or construction of, or other matter in connection with, subsidiary legislation generally are contained in this Act. 13

In this section “Act” includes a federal law styling itself an Ordinance or Enactment.” [14] The appellant’s counsel concluded his submission on this issue by this statement: “53. Parliament does not legislate in vain, the purpose of the said changes must be considered and promoted. The intention of Parliament to remove the requirement for approvals once a party is duly licensed should be respected by the Respondent and it should not be allowed to impose the said requirement through subsidiary legislation.” [15] As for the Court of Appeal’s remark that the respondent did not previously challenge the Guidelines and in fact accepted it, that conduct does not, submitted learned counsel, remedy the subsidiary legislation which is unlawful or ultra vires and cited the House of Lords decision in Boddington v. British Transport Police [1999] 1 AC 143 which we must say is not relevant on the facts before us because there the issue was whether the appellant could challenge the validity of the Railways Bylaws 1965 before the stipendiary magistrate where he was charged for violating Bylaw 20. The quotation from the cited case highlighted by learned counsel for our consideration at page 158 of the report, to wit, 14 “The Anisminic decision established, contrary to previous thinking that there might be error of law within jurisdiction, that there was a single category of errors of law, all of which rendered a decision ultra vires. No distinction is to be drawn between a patent (or substantive) error of law or a latent (or procedural) error of law. An ultra vires act or subordinate legislation is unlawful simpliciter and, if the presumption in favour of its legality is overcome by a litigant before a court of competent jurisdiction, is of no legal effect whatsoever.” is, with respect, of no assistance to his client for the issue here is one of estoppel by conduct, that is, having accepted the validity of and made due compliance of the Guidelines, should the appellant be allowed to mount the challenge on its validity now? [16] Our answer to that is, a no because the above was not the only conduct of the appellant which militates against the grant of the reliefs sought but its lackadaisical attitude is another. As rightly raised by learned counsel for the respondent, the appellant only made the application for the approval of that leasing transaction for Rig 503 some 20 months after entering into that transaction. Equally important to consider is its other conduct in accepting the non-retrospective approval for the transaction by effecting the payment as stipulated in the respondent’s dated 09/04/2015 which we had mentioned earlier. Such conscious conduct on the part of the appellant, viewed cumulatively must surely be held against it for it raises the application 15 of the principle of law, in the words of Sir Nicholas Broune-Wilkinson VC in Express Newspaper Plc v News (UK) Ltd & Others [1990] 3 All ER 376 “... that it is not possible to approbate and reprobate. That means you are not allowed to blow hot and cold in the attitude that you adopt. A man cannot adopt two inconsistent attitudes towards another: he must elect between them and, having elected to adopt one stance, cannot thereafter be permitted to go back and adopt an inconsistent stance.” [17] Even if we were prepared to excuse the said behaviour of the appellant, we are still unable to accede to its appeal for the following reasons. Although on the surface it would appear from the legislative provisions mentioned above that the dispensation of the need by a Labuan company to notify the respondent of the licensed activity with a resident under the Financial Services and Securities Act or the Labuan Islamic Financial Services and Securities Act 2010 that there is indeed a liberalisation of the law as contended by the appellant, nevertheless when one were to consider the fact that the authority which must be notified [under section 7(5)] or not notified [under section 7(6)] in the Act is the very same authority who is empowered to grant the approval for the transaction under the Guidelines, the said dispensation is pure common sense. Why is there a need to notify 16 oneself when one has given the approval? That surely is pure redundancy of action which defies logic and that defiance is even more obvious when we consider the fact that the introduction of section 7(6)(a) of the Act vide Act A1367, as submitted by learned counsel for the respondent, was done at the same time as the Financial Services and Securities Act. [18] Further, as held by the learned HCJ, the respondent’s authority as conferred by section 4 of the Financial Services Authority Act to issue the guidelines is not just “... to clarify any provision...’ of the Act and to ‘... facilitate compliance with the law...’ but also “... any other matters relating to Labuan financial services.” The requirement for the approval surely falls within the scope of the underlined words above as does the authority to impose and collect the fees as described earlier which is even specifically provided in section 189 of the Financial Services and Securities Act. We are totally in agreement with the learned HCJ that section 7 of the Act is a general provision whereas the Third Schedule of the Regulations, made under the Financial Services and Securities Act and thereafter the Guidelines made under the Regulations are specifically enacted and made, respectively, for the leasing transactions. As submitted by learned counsel for the respondent, the Financial Services and Securities Act 17 is a comprehensive statue dealing with “... licensing and regulation of financial services and securities in Labuan ...” and under section 86 of the said Act, leasing business falls under financial business. The said Act under section 189 specifically empowers the respondent to, inter alia, prescribe fees for the activities of a licensed or registered entity when any consent, licence or registration is granted. The full section reads:

“Annual and licence fees

The Authority may prescribe such annual, licence or registration fees by regulations in respect of the activities of a licensed or registered entity or other activities under this Act.

Such fees as may be prescribed shall be payable on or before 15 January of every year following the year in which any consent, licence or registration is granted.

An unpaid fees may be sued for by the Authority by action as a civil debt and in addition the Authority may require payment of a penalty for late payment up to an amount equivalent to twice the amount of the fees unpaid and costs of recovering the amount including but not limited to costs of legal proceedings.” The Third Schedule of the Regulation of course have expressly stipulated the fees for the leasing transaction upon approval being granted by the respondent. 18 [19] As rightly submitted by learned counsel for the respondent and held by the Court of Appeal, it is an accepted principle in the construction of statutes that where there are two provisions of written law, one general and the other specific, then the special or specific provisions excludes the operation of the general provision. The Latin version of that principle is generalibus specialia derogant. [20] Furthermore, the respondent’s power as provided in section 90 and 28B, respectively under the Financial Services Authority Act includes the power to request for information not just on that of the applicant but its customer as well. Learned counsel for the respondent pointed out, by referring to Exh. LFSA-9, that is, Deloitte’s letter dated 16/06/2011 and 07/07/2011 annexed to its affidavit in reply (2) affirmed on 09/05/2017 (at pages 1292 to 1297 of Appeal Record Volume 4), that such an information had been given to the respondent by the said company on behalf of the appellant. Again, given that this is part and parcel of the respondent’s power, not just as the chief supervisor but also the main regulator and enforcer of Labuan’s international business and financial services industry, the need to notify it of the leasing transactions under the Financial Services and Securities Act is again redundant for it already possessed all the information necessary for the execution of its statutory powers. 19 [21] Given such wide powers of the respondent and in view of section 40 read with section 95 of the Interpretation Acts 1948 and 1967, it has the implied power to enforce it by, inter alia, making a subsidiary legislation and to impose conditions when granting a licence or giving its approval. The Guidelines made under the Regulation to facilitate the exercise of the said power, again was rightly held by the learned HCJ and the Court of Appeal to have the force of law and as held in their respective judgments, the Regulation is not ultra vires section 7(6) of the Act. That is the very same view that we adopt here. The question of law posed is therefore answered in the negative and consequentially, the appeal is dismissed with cost. Signed. (RHODZARIAH BINTI BUJANG) Judge Federal Court of Malaysia Putrajaya Date: 02/10/2020 Parties Appearing: For The Appellant: Mohd Arief Emran Bin Arifin Jason Liang Kellie Allison Yap Rachel Yey (Messrs Wong & Partners) 20 For The Respondent William Lim Wee Chong Nur Izzati Rosli Sylvie Tan Sze Ni (Messrs Ariff Rozhan & Co.) Cases Referred To:

Associated Provincial Pictures Houses Ltd. v. Wednesbury Corporation [1948] 1 KB 223;

Palm Oil Research and Development Board Malaysia & Anor v. Premium Vegetable Oils Sdn. Bhd. & Another Appeal [2005] 3 MLJ 97;

Kerajaan Malaysia v. Wong Pot Heng & Anor. [1997] 1 MLJ 437;

Boddington v. British Transport Police [1999] 1 AC 143;

Express Newspaper Plc v News (UK) Ltd & Others [1990] 3 All ER 376.