Yeong Oon Kong v XXXX (W-01(A)-78-01/2024)

W-01(A)-78-01/2024 Kand. 48 18/03/2026 09:07:41 IN THE COURT OF APPEAL OF MALAYSIA (APPELLATE JURISDICTION) CIVIL APPEAL NO.:W-01(A)-78-01/2024 BETWEEN YEONG OON KONG ...APPELLANT AND

1. LAU TECK POH

2. CHEN KUAN KUAN

3. KETUA PENGARAH JABATAN PENGANGKUTAN JALAN MALAYSIA

4. PENDAFTAR PELESENAN JABATAN PENGANGKUTAN JALAN MALAYSIA ...RESPONDENTS [In the High Court of Malaya In Shah Alam, Kuala Lumpur Selangor Darul Ehsan] Civil Court No. 25-233-11/2013 In the application by Lau Teck Poh and Chen Kuan Kuan for an order of Certiorari against the written decision of the Road Transport Department dated 20 September 2013; And In the matter of the application by Lau Teck Poh and Chen Kuan Kuan for an Order of Mandamus against the written decision of the Road Transport Department dated 20 September 2013; And In the matter of Order 53 of the Rules of Court 2012; And In the matter of the Specific Relief Act 1950 And In the matter of the Transport Act 1987 particularly Section 17(6) of the Motor Vehicles (Registration and Licensing) Rules 1959, the Department's Regulations and Rules; And In the matter of Articles 5 & 8 of the Federal Constitution; And In the matter of Order 92 of Rule 4 of the Rules of Court 2012 Between

1. Lau Teck Poh

2. Chen Kuan Kuan ...Applicant And

3. Ketua Pengarah Jabatan Pengangkutan Jalan Malaysia

4. Pendaftar Pelesenan Jabatan Pengangkutan Jalan Malaysia ...Respondents And Yeong Oon Kong (No. K/P: 530820-02-5755) ...[Intervener] CORAM: CHOO KAH SING, JCA LIM HOCK LENG, JCA LATIFAH BINTI HAJI MOHD TAHAR, HCJ GROUNDS OF JUDGMENT Subject Matter of the Appeal and its Backdrop

1. The appeal at hand concerns a tussle between the Appellant and the 1st Respondent over a car registration number "A9."

2. A narrative of the salient facts is necessary to provide context, and appreciation of the issues.

3. In December 2012, the $ 1^{\mathrm{st}} $ Respondent/Lau Teck Poh ("Lau") acquired 3 registration numbers, viz, P8 and P9, as well as the disputed A9 for the total sum of RM690,000.00 from one Chau Hang Yong ("Chau") who held himself out as having ownership.

4. The disputed A9 cost RM210,000.00.

5. That month, the registration number A9 was transferred to Lau in the register of the Jabatan Pengangkutan Jalan ("JPJ") which issued a vehicle registration number certificate to the $ 1^{\mathrm{st}} $ Respondent in his name.

6. In early 2013, the Malaysian Anti-Corruption Commission ("MACC") carried out investigations concerning these prestige numbers. The JPJ then wrote to Lau asking for return of the 3 registration numbers but Lau refused to sign the accompanying form which contained an admission the numbers were unlawfully obtained. He maintained that he was a bona fide purchaser, and no adverse findings were made by the MACC.

7. On 7 May 2013, JPJ Selangor issued a letter to Lau that A9 would be cancelled for non-compliance with the RTA 1987 and regulations.

8. On 24 June 2013, the JPJ through its Director-General formally cancelled the registration number A9 in Lau's name, restored the vehicle's original number and issued a replacement certificate.

9. Lau then appealed to the Minister of Transport but to no avail.

10. On 20 September 2013, the DG of JPJ $ ( 3^{rd} $ Respondent) issued a letter confirming the cancellation.

11. On 11 November 2013, Lau and his wife filed for judicial review to quash the decision and compel the re-registration of the numbers. Lau's wife was a claimant because when the numbers were bought, the transfer forms were pre-signed by Chau to transfer P8 to her while the other two numbers were to be transferred to Lau. The judicial review proceedings focused on the single decision-confirming the cancellation of all three registration numbers - dated 20 September 2013.

12. On 15 January 2016, while that judicial review application was pending, the Director of JPJ Wangsa Maju registered A9 to Yeong Oon Keong who claimed ownership through a chain of title or ownership originating from one Tunku Sulaiman bin Tunku Kassim in 1938.

13. In March 2019, the High Court decided in Lau's favour and granted an order of Certiorari to quash the decision of the Director-General of the JPJ in affirming the decision of the Acting Director of JPJ Selangor to cancel the registration of the said numbers.

14. The learned Judicial Commissioner held that the impugned decision was ultra vires and illegal as it failed to comply with section 17(2) of the Road Transport Act 1987. Her Ladyship was also of the view that there was a breach of natural justice because Lau and his wife were not given the opportunity to make any representation before the cancellation of the three registration numbers.

15. The Director-General of the JPJ then appealed.

16. It was only in June 2020 that Yeong found out about the appeal filed by the Director-General at the Court of Appeal. He applied to intervene. Yeong's application to intervene was allowed.

17. On 26 June 2023, the Court of Appeal partially affirmed the JC's decision. It affirmed the quashing of the cancellations for "P 8" and "P 9" but remitted the "A 9" issue back to the High Court to determine the competing claims between Lau and Yeong.

18. On 22 January 2024, the learned High Court Judge held that:

(ii) Lau was the rightful owner; and

(iii) Yeong's registration as the owner in 2016 was bad in law.

19. Yeong then filed the appeal which is now before us. On a side note, Lau's wife was named as the $ 2^{\mathrm{nd}} $ Respondent as she had jointly succeeded in the High Court before the learned Judicial Commissioner in the original judicial review proceedings, although the present appeal only concerns the registration number A9. The High Court's Findings, Competing Arguments, and Our Findings

20. In the remitted proceedings in 2024, the High Court primarily quashed the cancellation of the registration number A9 because the decision was made without giving the $ 1^{\mathrm{st}} $ and $ 2^{\mathrm{nd}} $ Respondents an opportunity to be heard, and thus constituted a breach of natural justice as well as an act ultra vires section 17(2) of the Road Transport Act 1987.

21. The Appellant contended that the High Court had attached disproportionate significance or weight to the Court of Appeal's decision in 2023 by tarring A9 with the same brush as P8 and P9; and the Court of Appeal's decision was, in any event, per incuriam because it had considered the wrong statutory provision, and had decided on a decision which the $ 1^{\mathrm{st}} $ and $ 2^{\mathrm{nd}} $ Respondents had wrongly applied to impugn.

22. Aside from that, the Appellant sought to rely on the Second Actor Theory.

23. We propose to deal with each of these contentions in turn.

24. To begin with, we are inclined to agree with the Appellant that the dispute over A9 should be looked at afresh.

25. When the Judicial Commissioner decided the $ 1^{\mathrm{st}} $ judicial review application in 2019, there were no competing third party interests regarding P8 and P9. It was thus the Court of Appeal held that Lau and his wife had made out their case for those numbers, and affirmed the Judicial Commissioner's decision to quash their cancellation made in 2013. In contrast, A9 had been formally registered to the Appellant/Intervener by the JPJ in 2016. A separate issue arose which required it to be remitted to the High Court, so that it could decide on the competing claims of Lau, and that of Yeong, as the registered owner of A9.

26. It is pertinent that the Court of Appeal found fit to hold that the original Order of Mandamus - requiring the re-registration of the three numbers - be varied to include only P8 and P9, thus leaving the dispute over A9 to be decided by the High Court.

(ii) Was Section 17(2) Wrongly Relied Upon?

27. With the outcome on A9 to be determined on its own, the Appellant argued that the $ 1^{\mathrm{st}} $ and $ 2^{\mathrm{nd}} $ Respondents' reliance on section 17(2) of the Road Transport Act 1987 was erroneous since the provision is concerned with the grant of motor vehicle licences, instead of registration numbers.

28. The High Court felt that it was bound by the Court of Appeal's finding that the invocation of section 17(2) in the intitulement and as the basis of the judicial review application was not an obstacle.

29. It was urged upon us that the Court of Appeal's finding was per incuriam.

30. We are not persuaded, as the cancellation of the registration numbers and motor vehicle licences were interconnected decisions. Administrative actions affecting multiple rights ought to be viewed together or in a holistic manner rather than in silos. Otherwise, there would be challenges on a piecemeal or instalment basis. See the decision of the Federal Court in Majlis Perbandaran Pulau Pinang v Syarikat Berkerjasama-sama Serbaguna Sungai Gelugor dengan Tanggungan [1999] 3 CLJ 65.

(iii) Was the Wrong Decision Targeted?

31. The Appellant also submitted that the $ 1^{\mathrm{st}} $ and $ 2^{\mathrm{nd}} $ Respondents had targeted the wrong "decision" for judicial review, that is, the impugned decision on 20 September 2013, instead of what was described as the true A9 decision made on 24 June 2013.

32. The sting in the submission is that the decision on 24 June 2013 was left untouched, and thus remained effective.

33. It was argued that the $ 1^{\mathrm{st}} $ and $ 2^{\mathrm{nd}} $ Respondents' appeal to the Minister of Transport, following "the true A9 decision," was superfluous and did not constitute a step in the decision-making process. There was simply no provision in the Road Transport Act for such an appeal. The letter dated 20 September 2013, it was further argued, was no more than an explanation.

34. On our part, we find ourselves in agreement with learned counsel for the $ 1^{\mathrm{st}} $ and $ 2^{\mathrm{nd}} $ Respondents that in a situation such as the present, where is a series of actions, the decision to be targeted for judicial review purposes is the final, binding decision that solidifies the decision, viz, the letter dated 20 September 2013. As submitted, "the effective final decision should be the focal point of any challenge. By doing so, it recognizes that addressing earlier, non-final steps would be premature and possibly ineffective if further administrative steps are taken or changes are made."

35. In targeting the letter dated 20 September 2013, the $ 1^{\mathrm{st}} $ and $ 2^{\mathrm{nd}} $ Respondents addressed the decision-making process in a composite manner which is consistent with the Federal Court's decision in Majlis Perbandaran Pulau Pinang (supra).

36. As such, we would agree with the Court of Appeal that the Judicial Commissioner was correct in finding that the Director-General had confirmed the cancellation of the registration numbers through the letter dated 20 September 2013. In so holding, the Court of Appeal accepted that the said letter was the final and operative act which was amenable to judicial review.

37. We are unable to say that the decision was per incuriam.

38. After considering the Appellant's arguments afresh on whether the correct provision in the Road Transport Act 1987 was invoked, and whether the wrong decision was targeted, we find those arguments devoid of merit.

(iv) The Nullity Principle and the Second Actor Theory

39. As mentioned earlier, the learned High Court Judge had quashed the cancellation of the registration of A9 in the $ 1^{\mathrm{st}} $ Respondent's name on the audi alteram partem principle at common law and pursuant to statute.

40. It is well settled that before a person can be punished or deprived of his property, he must be afforded a proper opportunity to be heard. The rule finds expression in the legal maxim audi alteram partem. It is of great antiquity, honoured in its observance.

41. In R v. The Chancellor, Masters and Scholars of the University of Cambridge [1723] 88 ER 111, Fortescue J held: "... the objection for want of notice can never be got over. The laws of God and man both give the party an opportunity to make his defence, if he has any... even God himself did not pass sentence upon Adam, before he was called upon to make his defence."

42. In defending the decision of the High Court, the $ 1^{\mathrm{st}} $ and $ 2^{\mathrm{nd}} $ Respondents contended that the attendant consequence of a quashed decision is that it is to be treated as if it never existed. In other words, the quashed decision is to be considered void ab initio.

43. They drew support for their contention from what Umi Khaltom JCA had to say in Pernas OUE (KL) Sdn Bhd trading as Hotel Istana v YB Menteri Sumber Manusia Malaysia & Ors [2016] MLJU 1775: "The question which we need to ask ourselves was what was the effect of the 1st High Court decision when it quashed the Minister's 1st decision? We were of the view that the $ ^{1 s t} $ High Court decision had the effect of quashing the Minister's 1st decision as if it was never made."

44. The principle that a quashed decision is void ab initio and has no legal effect is, however, not all-encompassing or a rigid principle.

45. At this point, it will be necessary to recall that, on 15 January 2016, while the first judicial review application was pending, the JPJ had registered A9 in the name of the Appellant.

46. While the learned HCJ treated the decision to issue A9 to the Appellant on 15 January 2016 as "unacceptable" in view of the pending judicial review application, it is of great significance that the 2016 decision was itself unchallenged and there was no stay of that decision.

47. It was argued for the Appellant that the decision was a distinct administrative act, and bore no brand of invalidity on its forehead. In arguing that the decision of 15 January 2016 remained valid until quashed, reference was made to Penang Development Corporation v Teoh Eng Huat & Anor [1993] 2 CLJ 283 where the Supreme Court cited with approval, the following observation of Lord Radcliffe in Smith v. East Elloe Rural District Council [1956] AC 736, 769: "An order, even if not made in good faith, is still an act capable of legal consequences. It bears no brand of invalidity upon its forehead. Unless the necessary proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders."

48. There is then Lord Irvine's authoritative statement in Boddington v. British Transport Police [1999] 2 AC 143: "Subordinate legislation, or an administrative act, is sometimes said to be presumed lawful until it has been pronounced to be unlawful. This does not, however, entail that such legislation or act is valid until quashed prospectively. That would be a conclusion inconsistent with the authorities to which I have referred. In my judgment, the true effect of the presumption is that the legislation or act which is impugned is presumed to be good until pronounced to be unlawful, but is then recognised as never having had any legal effect at all. The burden in such a case is on the defendant to establish on a balance of probabilities that the subordinate legislation or the administrative act is invalid...”

49. Having laid the foundation that the 2016 decision was not at its birth or inception a nullity but remained valid until quashed, learned counsel for the Appellant proceeded to invoke the Second Actor Theory advocated by Professor Christopher Forsyth.

50. The Second Actor Theory is firmly embedded in the Malaysian legal landscape. It was first adopted and applied by the Court of Appeal in Pan Wai Mei v Sam Weng Yee & Anor [2006] 1 CLJ 914 where Gopal Sri Ram JCA (later FCJ) cited the following passages by Professor Forsyth: "(i) an invalid administrative act may, notwithstanding its non-existence (in law), serve as the basis for another perfectly valid decision. Its factual existence, rather than its invalidity, is the cause of the subsequent act, but that act is valid since the legal existence of the first act is not a precondition for the second.; and

(ii) But they (the administrative acts) clearly exist in fact and they often appear to be valid; and those unaware of their invalidity may take decisions and act on the assumption that these acts are valid. When this happens the validity of these later acts depends upon the legal powers of the second actor. The crucial issue to be determined is whether that second actor has legal power to act validly notwithstanding the invalidity of the first act. And it is determined by an analysis of the law against the background of the familiar proposition that an unlawful act is void."

51. The theory was most recently applied by this Court in Tropika Istimewa Development Sdn Bhd v Wong Hang Fah & Ors [2025] CLJU 1146.

52. Notably, the Second Actor Theory was also applied by the Federal Court in Obata-Ambak Holdings Sdn Bhd v Prema Bonanza Sdn Bhd & Other Appeals [2024] 8 CLJ 519. Those appeals concerned liquidated ascertained damages ("LAD") in relation to condominiums forming part of The Sentral Residences project. Under the Housing Development (Control and Licensing) Act 1966 and subsidiary legislation, the time fixed for delivery of vacant possession and completion of common facilities under that legal regime was 36 months. The developer applied to extend time for performance to 54 months. In December 2016, the Controller of Housing granted the extension of time, 2 years before the sale and purchase agreements were executed between the developer and the purchasers.

53. Subsequently, in Ang Ming Lee & Ors v Menteri Kesejahteraan Bandar, Peumahan dan Kerajaan Tempatan & Anor and Other Appeals [2020] 1 CLJ 162, the Federal Court held that the particular regulation in the subsidiary legislation - under which the extension was applied for and obtained - was ultra vires the parent legislation.

54. In the wake of that decision, the purchasers of the condominiums in The Sentral Residences sued for, among other reliefs, a declaration that the time to deliver of vacant possession and to complete the common facilities was 36 months, instead of the extended period of 54 months. They sought LAD accordingly.

55. Hasnah Mohammed Hashim FCJ (later CJM) held that "despite the extension having been declared unlawful and invalid by Ang Ming Lee, it should not adversely affect the parties who had relied on that decision or regulation prior to the declaration of invalidity." Her Ladyship concluded: "The Controller had considered the application for extension and granted the extension as the law at that time was valid. The developer had relied on the decision of the Controller who had granted the extension. Accordingly, we have no difficulty in holding that the second actor theory applies."

56. Applying the Second Actor Theory to the facts of the present appeal, we are of the view that although the 2013 cancellation of the $ 1^{\mathrm{st}} $ and $ 2^{\mathrm{nd}} $ Respondents' registration numbers by the Acting Director of JPJ Selangor ("the First Actor") was eventually found to be unlawful, it was a fact that the cancellation was still subsisting and valid when the Director of JPJ Wangsa Maju ("the Second Actor") assigned the registration number A 9 to the Appellant on 15 January 2016.

57. The Director had relied on the extant validity of the cancellation, and acted on the assumption that the registration number A9 was still available at the time he made the assignment decision.

58. In instances such as the present, the application of the Second Actor Theory preserves the reliance the public places on the JPJ register, including the Appellant who was a third party to the cancellation decision and who was accepted as a bona fide purchaser of the registration number A9 by the Director of JPJ Wangsa Maju in his assignment decision in 2016.

59. The importance of the JPJ register was in fact recognised by the learned HCJ who referred to Pengarah Jabatan Pengangkutan Selangor & Ors v Sin Yoong Ming [2015] 1 CLJ1 where the Federal Court held: "We are of the view that the registers maintained by the department pursuant to s. 8 of the Act must contain accurate particulars of all vehicles registered by the department. This is because the prospective purchasers of the vehicles and those involved in the motor trade rely on such information to conduct private and commercial transactions. If the registers are not reliable they will affect those in the motor trade industry and the public who purchase secondhand vehicles."

60. The Second Actor Theory avoids administrative chaos which would otherwise ensue from legal challenges to unknown or distant, historical decisions. It will be recalled that the Appellant was unaware of the $ 1^{\mathrm{st}} $ judicial review proceedings until after it was allowed in 2019. Hence, the Appellant's application to intervene in the subsequent appeal which was granted and followed by an order for the judicial review proceedings on A9 to be remitted to the High Court for determination.

61. We digress momentarily to mention that although the authorities on the Second Actor Theory were not broached until the Appellant's submission in reply, the salient facts supporting the theory were robustly argued before the High Court reached its decision. The salient facts and grounds of appeal are comprehensively laid out in the Memorandum of Appeal.

62. It was argued for the $ 1^{\mathrm{st}} $ and $ 2^{\mathrm{nd}} $ Respondents that Appellant's submissions on the theory should be given short shrift on account of the nullity principle espoused in Pernas OUE (supra), and that this court should look askance at the theory lest Third Actors or more come into the picture. We see no merit in the counter submissions, for the Second Actor Theory takes a nuanced approach - recognised by the apex court - to the nullity principle. Conclusion

63. The High Court was plainly wrong in giving undue weight to the retroactive effect of the Certiorari order, without recognising that the cancellation decision in 2013 existed as a fact in 2016, and was valid and capable of giving rise to legal consequences until it was actually set aside.

64. Learned counsel for the Appellant submitted, rightly in our view, that the High Court ought to have instead granted an order for damages in favour of the $ 1^{\mathrm{st}} $ Respondent against the Director-General and/or JPJ.

65. For the reasons given, the appeal is allowed and the decision of the High Court is set aside in its entirety.

66. The following consequential orders are granted:

(ii) an order that the $ 3^{rd} $ and $ 4^{th} $ Respondents do re-assign the vehicle registration number A9 to the Appellant within 30 days from the date of this order.

67. The Appellant is awarded costs of RM20,000.00 against the $ 3^{rd} $ and $ 4^{th} $ Respondents collectively, while no order as to costs is made for or against the $ 1^{st} $ and $ 2^{nd} $ Respondents. Dated the 16th day of March 2026 (Lim Hock Leng) Judge Court of Appeal Malaysia Counsel for the Appellant

1. Dato' Malik Imtiaz Sarwar

2. Loo Hsien Yang

3. Wong Ming Yen Messrs. Y.K. Loo & Co Counsel for the $ 1^{\mathrm{st}} $ & $ 2^{\mathrm{nd}} $ Respondents

1. Tan Sri Dr. Muhammad Shafee Abdullah

2. Magdalene Wong Sui Hua Messrs. Shafee & Co Counsel for the $ 3^{\mathrm{rd}} $ & $ 4^{\mathrm{th}} $ Respondents Shariah Shapiee, SFC Senior Federal Counsel Attorney-General's Chambers Putrajaya