(appellate jurisdiction) civil appeal no: w-01(im)-367

IN THE COURT OF APPEAL OF MALAYSIA
(APPELLATE JURISDICTION)
CIVIL APPEAL NO: W-01(IM)-367-09/2014
BETWEEN
TEH GUAT HONG
(NRIC NO. 790323-01-5610)
… APPELLANT
AND
PERBADANAN TABUNG PENDIDIKAN
TINGGI NASIONAL
… RESPONDENT
[In the matter of judicial review application no: 25-98-05/2014
In the High Court of Malaya in Kuala Lumpur]
Between
PERBADANAN TABUNG PENDIDIKAN
TINGGI NASIONAL
… PLAINTIFF
And
TEH GUAT HONG
(NRIC NO. 790323-01-5610)
… DEFENDANT
CORAM:
Hamid Sultan Bin Abu Backer, JCA
Varghese a/l George Varughese, JCA
Prasad Sandosham Abraham, JCA
Decision Date: 12th March 2015
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GROUNDS OF JUDGMENT
(Prasad Sandosham Abraham, JCA)
[1]
The appellant appeals against the decision of learned High Court
judge who refused leave of the appellant to proceed with the judicial
review application based on the preliminary objection of the respondent,
on the grounds that the subject matter of the judicial review being sought
is non-justiciable. The learned High Court judge has not provided the
grounds for the said decision. We heard the appeal on 11-12-2014 and
reserved judgment.
[2]
It is important to note that the respondent had not filed any affidavit
in reply and the submission by the Senior Federal Counsel on behalf of
the respondent ought to have been rejected by the High Court in limine.
Brief Facts germane to this appeal
[3]
The appellant, now a graduate with first class honours in LLB from
University of London, having pursued that degree at ATC College. To
pursue the degree, the appellant was offered an education loan of
RM47,875.00 by the respondent which was disbursed pursuant to a
circular known as PTPTN Bilangan 1 Tahun 2002 (2002 Circular).
Subsequently, the respondent had informed the appellant that her
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results entitled her full exemption from repayment of the education loan
pursuant to circular, known as Pekeliling PTPTN Bilangan 2 Tahun 2003
(2003 Circular).
[4]
The 2003 Circular in essence says that students with first class
honours shall be exempted from the repayment of the loan. However it
applies to Institusi Pendidikan Tinggi Swasta (IPTS) students, and it is
limited to those who pursue courses that have obtained Certificate of
Accreditation from the National Board of Accreditation (LAN).
The
appellant falls in the category of IPTS students. The appellant applied
for exemption but was rejected.
Subsequently, the respondent had
informed the Public Complaints Bureau of the Prime Minister’s
Department that the appellant’s application could not be processed
because a certificate from LAN was not produced and if the certificate
was produced the respondent will have no obstacle to consider the
application.
[5]
The appellant obtained the LAN certificate from ATC and
forwarded it to the respondent. Again the respondent rejected on the
ground that the LAN accreditation was from year 27-02-2006 till 26-022011 and degree obtained earlier did not have the LAN certificate. The
appellant appealed against that decision and the respondent informed
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the appellant that the appeal will further be submitted to “Mesyuarat
Jawatankuasa Kutipan Balik Pembiayaan Pendidikan (MJKBPP)” for
consideration. Finally the respondent dismissed the appeal.
[6]
The appellant says in the 2005 Circular that the respondent
recognizes that the absence of LAN certificate does not mean the
courses provided by the private colleges are not approved by LAN and
the loan application can still be made so long as they are made before
1st July 2006. In the instant case, the LAN certificate was issued to ATC
on 27-02-2006 and has met with the deadline set in the 2005 Circular.
[7]
The appellant’s complaint is that the 2003 Circular does not state
when the accreditation must be obtained and it was wrong for the
respondent to interpret it to include the words ‘during the time the
appellant was undergoing her studies’.
The appellant says, the
interpretation is inconsistent with public policy, the 2002 Circular and
Surat Pekeliling PTPTN Bilangan 1 Tahun 2005 (2005) circulars and in
consequence the decision is irrational and unreasonable. In addition,
the appellant says that there was a legitimate expectation that the
respondent would not renege on its previous policy and that the
appellant would be given an opportunity to be heard before the decision
was made.
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[8]
The learned Federal Counsel for the respondent says, (i) the
relationship between the appellant arises out of a contract; (ii) 2003
Circular has no legislative effect and is administrative in nature. The
circular was not issued based on Akta Perbadanan Tabung Pendidikan
Tinggi Nasional 1997; (iii) the policy made by the respondent in its
administration is not justiciable; (iv) there is non-disclosure of material
facts and evidence.
Findings of Courts
[9]
This is an appeal in respect of an application for leave for judicial
review. It was not necessary to go into the merits of the case at the
leave stage because the threshold to establish whether leave should be
granted is very low. I refer to the decision of the Court of Appeal in Jerry
Wa Dusing & Anor V. Menteri Keselamatan Dalam Negeri Malaysia
& Anor [2014] 9 CLJ 321 in particular to the judgment of Her Ladyship,
Justice Tengku Maimun JCA found at page 336 at para 22 and I quote:
“Finally, we take note that this appeal is in respect of an
application for leave for judicial review where the threshold
is very low. There is no necessity to go into the merits of the
case at the leave stage. The test is to see whether the
appellants had an arguable case and that the application is not
5
frivolous (see Tang Kwor Ham & Ors v. Pengurusan Danaharta
Nasional Bhd & Ors [2006] 1 CLJ 927). We find that the
appellant had passed the threshold, for leave to be granted.”
(Emphasis added)
The test was to see whether the appellants had an arguable case and
that the application was not frivolous.
[10] The test whether the appellant had an arguable case and that the
application is not frivolous has been laid down in Tang Kwor Ham & Ors
v. Pengurusan Danaharta Nasional Bhd & Ors [2006] 1 CLJ 927,
Gopal Sri Ram JCA (as he then was) stated:
“…the High Court should not go into the merits of the case
at the leave stage. Its role is only to see if the application
for leave is frivolous. If, for example, the applicant is a
busybody, or the application is made out of time or against a
person or body that is immunised from being impleaded in legal
proceedings then the High Court would be justified in refusing
leave in limine. So too will the court be entitled to refuse leave if
it is a case where the subject matter of the review is one which
by settled law (either written law or the common law) is nonjusticiable, e.g., proceedings in Parliament (see Art. 63 of the
Federal Constitution).” (Emphasis added)
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[11] The respondent, had raised preliminary objections on the grounds
that the subject matter being sought for judicial review is non-justiciable.
The said Federal Counsel for the respondent submitted in summary that
the appellant intended to challenge the policy made by the Respondent
in its administration, which is not justiciable for judicial intervention. The
Appellant in her application seeks this Court intervention to declare that
the narrow interpretation of ‘Pekeliling PTPTN Bil. 2 Tahun 2003’ as not
being fair and to move this Court to interpret and to include the
appellant within the scope of the ‘Pekeliling’. The requirement and
condition imposed in the ‘Pekeliling’ is within the policy making process
of the Respondent to determine its applicability. The related prayers in
this application are not justiciable for judicial review because it involves
a challenge against policy consideration in which for this matter, it is
totally within the best knowledge of the respondent to determine.
[12] The stand taken for the appellant is that:
(1) The issue of justiciability can be decided at the leave stage
purely to pass the threshold for leave.
(2) The decision is justiciable and amenable for Judicial Review.
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[13] The appellant submitted that the decision is justiciable and
amenable for judicial review because it contains sufficient elements of
public law for the following reasons:
a)
the 2003 Circular (under which the Decision was made) has
legislative effect and is a subsidiary legislation;
b)
the 2003 Circular (under which the Decision was made) is an
administrative quasi-legislation;
c)
the Decision was made by a public body having public
consequences that infringes upon the rights of the Applicant.
[14] The issue that need to be determined in the instant appeal is
whether the executive’s discretion, whether by statute or prerogative is
amenable to judicial review.
[15] In my view, the 2003 Circular is made pursuant to s.19 and/or s.20
of the PTPTN Act which authorised both the Minister and Perbadanan to
enact the said Circular. In Laguna Be Bay Sdn Bhd v Majlis
Perbandaran Subang Jaya [2014] 7 MLJ 545 the Applicant was
challenging a decision made pursuant to a circular issued by the
8
Selangor State Secretary relating to the construction of billboards.
Judicial review was allowed and it was held that:
“s.9 of the Local Government Act 1976 (“LGA “) empowers the
state authority to give directions to local authorities. The circular
was a direction under s.9 of the LGA.”
The provision in s.9 of the LGA is similar to s.19 of the PTPTN Act. The
court in Laguna Be Bay recognises that a circular is an instrument
enacted and permitted under statute and has legislative effect. As such,
the decision made pursuant to the circular was capable of judicially
review or is an issue to be canvassed on the full hearing of judicial
review.
Hence, I agree that the Respondent’s source of power in making the
Decision derives ultimately from the PTPTN Act because the 2003
Circular was enacted under the PTPTN Act.
[16] The 2003 Circular can be characterised as an administration quasi
legislation which are subject to judicial review. The 2003 Circular is a
public document and is intended to be made known to the public. This
can be seen where the same was published on the Respondent’s
website. The 2003 Circular was also intended to bind the students who
9
had an education loan from the Respondent and the Respondent itself. If
the 2003 Circular was not intended to bind the public, the Respondent
would not have made the Decision, however wrong, by referring or
relying to the 2003 Circular. When an instrument has ‘force of law’, it is
regarded as a subsidiary legislation and is binding on the parties.
[17] The respondent also put in argument that the relationship between
the appellant and the respondent was contractual in nature and
therefore is regulated by private law. Reference is made to the Federal
Court’s decision in Ahmad Jefri bin Mohd Jahri @ Md Johari v.
Pengarah Kebudayaan & Kesenian Johor & Others [2010] 5 CLJ
865; [2010] 3 MLJ 145, where it was held that even though the
relationship between the appellant and respondent is contractual in
nature, the Federal Court found that the appellant’s claim was based
solely on public law. The Federal Court held and I quote:“Thus, the decision to dismiss the appellant was made under a
statutory law by a body who acted within the scope of such
statutory power. Though the decision involves the dismissal of
an employee by an employer, much like a master dismissing his
servant, which is a private law matter, the fact that there are
statutory conditions and restrictions imposed by the Regulations
on the conduct and dismissal of the appellant underpins the
public law element in this case... Here, a special statutory
provision bearing directly upon the rights of a public authority to
10
dismiss the appellant. This injects the element of public law
necessary
in
this
context
to
attract
the
remedies
of
administrative law making this case amenable for judicial
review.”
[18] Thus, the decision by the respondent was made under a statutory
law by a body who acted within the scope of such statutory power. 2003
Circular gives rights to individuals to obtain waiver and imposes
obligations on the public authority to grant the waiver.
[19] As stated in the case of Tang Kwor Ham & Ors v. Pengurusan
Danaharta Nasional Bhd & Ors at the leave stage, merits of the case
shouldn’t be considered and the test to grant leave would be whether the
case is arguable and it is not frivolous. In the instant appeal, the decision
by the respondent was made by a body exercising its public function on
a public law matter and thus amenable for judicial review. On the facts, it
was right to conclude that there was an arguable case. The learned
judge was wrong in refusing to exercise his discretion in granting leave.
[20] In George John v. Goh Eng Wah Bros Filem Sdn Bhd & Ors
[1988] 1 MLJ 319, his Lordship Lim Beng Choon J, with whom I agree
described in crisp language the approach the court should take at the
leave stage where he said:
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“At the outset, it is very significant to take note that the
application in the instant proceeding is not one for an order of
certiorari but rather for leave to apply for such an order. On
principle and authority, I am of the view that at this stage of
the proceeding, the court is required only to inquire
whether the matter to be decided by the court is not in fact
frivolous and vexatious in the sense that it is a trivial
complaint of an administrative error by a busybody with a
misguided sentiment and misconception of the law. Another
requirement at this stage of the proceeding which a court has to
consider is that the applicant must produce sufficient evidence
to sustain a prima facie case that a public officer or authority
that made the decision had acted unlawfully or that he or it had
in its exercise of the administrative discretion acted ultra vires
the power given to him or it under the relevant statute. If the
court is satisfied that the applicant has complied with these two
requirements, leave would usually be granted irrespective of
whether the applicant has suffered no greater injury than
thousands of the King's subjects.” (Emphasis added)
[21] I find that this threshold has been met by the appellant. Whilst we
are unanimous in allowing the appeal, I take the view the appeal should
be confined to the sole issue of whether leave for judicial review should
have been granted or not. As I adopt that stand, I am therefore
constrained to encapsulate my views in a separate grounds of
judgment.
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[22] As a matter of observation, I note that there is a growing trend to
deal with applications for leave for judicial review on an inter parte basis
although the rules, be it the 1980 Rules of High Court and the Rules of
Court 2012 provide that such an application shall be made ex parte,
although the cause papers are to be served on the Attorney General. It
is perhaps opportune to remind ourselves of the dictum of His Lordship
Edgar Joseph Jr. (as he then was) in the case of Tuan Haji Sarip v
Patco Malaysia Bhd [1995] 2 MLJ 442 the decision of the Supreme
Court, at p 449 of the judgment, where His Lordship quoted with
approval the case of R v Secretary of State for the Home
Department, ex p Rukshanda Begum [1990] COD 107, as to the
approach to be taken for leave for judicial review and I quote:
“(i) The judge should grant leave if it is clear that there is a
point for further investigation on a full inter partes basis with all
such evidence as is necessary on the facts and all such
argument as is necessary on the law.
(ii) If the judge is satisfied that there is no arguable case he
should dismiss the application for leave to move for judicial
review.
(iii) If on considering the papers, the judge comes to the
conclusion that he really does not know whether there is or is
not an arguable case, the right course is for the judge to invite
the putative respondent to attend and make representations as
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to whether or not leave should be granted. That inter partes
leave hearing should not be anywhere near so extensive as a
full substantive judicial review hearing. The test to be applied by
the judge at that inter partes leave hearing should be analogous
to the approach adopted in deciding whether to grant leave to
appeal against an arbitrator’s award, ... namely: if, taking
account of a brief argument on either side, the judge is satisfied
that there is a case fit for further consideration, then he should
grant leave.”
It would follow therefore that an application for leave as a norm should
be dealt with on an ex parte basis, save and except for the exceptions
set out in that portion of the judgment referred to aforesaid and where
the circumstances of the case require the presence of the respondent.
However that should be an exception rather than the norm.
[23] For reasons stated above, I take the view the appeal must be
allowed with no order as to costs. The judgment of the High Court is set
aside. Leave for judicial review is granted and the application for judicial
review is to be heard on its merits.
I hereby so order.
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Dated: 12th Mac 2015
Signed
[DR. PRASAD SANDOSHAM ABRAHAM]
Judge
Court of Appeal Malaysia
Putrajaya
For Appellant:
Irwin Lo Chi Vui
Messrs. Lo Chambers
Advocates & Solicitors
13A-6, Menara 1 Mont Kiara
No. 1, Jalan Kiara
Mont Kiara, 50480 Kuala Lumpur.
For Respondent:
Khairul Fazly bin Kamarudin
Senior Federal Counsel
Attorney General’s Chambers
Civil Division, Level 3, Block C3
Complex C
Federal Government Centre of Administration
62512 Putrajaya.
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Cases Referred To:
1. Laguna Be Bay Sdn Bhd v Majlis Perbandaran Subang Jaya [2014] 7
MLJ 545 (referred)
2. Tang Kwor Ham & Ors v. Pengurusan Danaharta Nasional Bhd & Ors
[2006] 1 CLJ 927 (referred)
3. George John v. Goh Eng Wah Bros Filem Sdn Bhd & Ors [1988] 1
MLJ 319 (referred)
4. R v Secretary of State for the Home Department, ex p Rukshanda
Begum [1990] COD 107 (referred)
5. Tuan Haji Sarip v Patco Malaysia Bhd [1995] 2 MLJ 442
(referred)
6. Jerry Wa Dusing & Anor V. Menteri Keselamatan Dalam Negeri
Malaysia & Anor [2014] 9 CLJ 321 (referred)
Legislation Referred To:
1. PTPTN Bilangan 1 Tahun 2002
2. Pekeliling PTPTN Bil. 2 Tahun 2003
3. Surat Pekeliling PTPTN Bilangan 1 Tahun 2005
4. Akta Perbadanan Tabung Pendidikan Tinggi Nasional 1997
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