MY OPINION: SIGNING THE CCC, EQUALS ‘DEATH SENTENCE’?
Presumption of Innocent
The ‘buck’ don’t actually stop with the Architect, in any legal position, where the ‘presumption of innocence’ must always be upheld, unless proven guilty, in a situation of liability under the Street Drainage and Building Act 1974 (‘SDBA’), the ‘parent Act’ for the Uniform Building By-Laws (‘UBBL’).
The provision of the issuance of the Certificate of Completion and Compliance (‘CCC’), is by virtue of a ‘statutory declaration’ that prescribed:
“I/We hereby issue the Certificate of Completion and Compliance for the […] after having satisfied that it has been completed in accordance with approved plan […]” and “I/we certify that I/We have supervised the erection and completion of the […] and that to the best of my/our knowledge and belief such work is in accordance with the building and structural plans and that I/we accept full responsibility for those portions for which […] are respectively concerned with.”
What is a ‘statutory declaration’? Can such a declaration in the CCC can be construed as a ‘statutory declaration’? Statutory Declaration Act 1960 provided the definition of ‘statutory declaration’ as a formal statement made by an individual i.e. an Architect, required by the regulation, i.e. UBBL and it will be signed in the presence of a solicitor, commissioner of oath or a notary public, in this case, it ought to have been such. Such statements are generally satisfy legal requirements as well as regulations when no physical evidence is available at that point of time, hence, such declaration is required to be truthful and accurate. Thus, in all purpose, such ‘declaration’ as provided in the CCC mirrored the definition of ‘statutory declaration’ as in Statutory Declaration Act 1960, with the exception that it does not require the presence of a solicitor, commissioner of oath or a notary public, because as an Architect, one is presumably a professional registered with the relevant board, in this case, the Board of Architects Malaysia (‘LAM’), a government statutory body. Such position mirrors the decision as in Dolomite Properties v Ang Chai Kian , Wan Adli v Gema Mantap Sdn Bhd  and The Haven v Jason Ong Kian Heng 
What happened if such ‘statutory declaration’ is breached? Under the same Act, the declarant, if found guilty, can be charged under criminal. Thus, if there is an element of fraud in such undertaking, the ‘buck’ don’t actually stop with the Architect. It has to be opened up for criminal investigation, as the undertaking of CCC is annexed to the entire matrixes of undertaking of the 21 forms of ‘Borang-G’. The liability falls within the person who actually certify the relevant ‘Borang-G’, not necessary the Architect, under the principle of ‘presumption of innocence’. In the case of fraud, the threshold of proof is even higher, i.e. beyond reasonable doubt. Saying such, new professionals such as Inspector of Works (‘IOW’) and Certified Construction Managers (‘CCM’), whom are required to sign on the ‘Borang-G’ are equally responsible.
Prima Facie Unless Disputed
In Kembang Serantau Sdn Bhd v Perbadanan Putrajaya , the issue on finality of the CMGD, liked any certificate issued by the Architect, is only prima facie that such work has been completed unless disputed. In the same vein Kembang Serantau holds that a certificate just liked a CCC, which is also a certificate, is nothing more than an Architect’s opinion or prima facie that such work has been completed according to the approved plan, unless disputed. Interestingly, CJ Tengku Maimun observed, the CCC as a legal requirement imposed by law (statutory undertakings via a declaration) which in turn issued upon the developer complying with all the regulatory laws such as the SDBA and the UBBL, accords protection to the purchaser who would be assured that the relevant authorities have approved the construction, cannot be said (to be the same) in respect of the CPC (or any other certificates issued by the Architect) or any such document not amounting to CCC.
Apparently the CJ has upheld the sanctity of the CCC above any other contractual certificates, short of saying it is absolute and final as in Wan Adli’s case the LA are entitled to reject any improperly issued CCC. Similarly, in Shabiru (1990) Sdn Bhd v Goh Aik Chin , issuance of CCC does not mean that the Architect must have complied with all other contractual and tort obligations. In other word it is not absolute, i.e. finality, as it can be disputed. Board of Engineers Malaysia (‘BEM’) shares the view that PSP are obliged to obtain endorsement for all the 21 Borang G by respective parties to hold these stakeholders accountable. Similarly, BEM also view that by so doing, one can go after the actual person responsible for certain shortcomings or failures, of which PSP would be responsible for failing to check for fraudulent in the Borang-G submission which is not onerous. In the same journal, BEM is aware that the CCC is merely an enhancement of the contract administration role of the PSP and went as far as to say, BEM actually ‘adjudicate’ its members for the shortcomings of ‘procedural’ and fraud.
Negligent Versus Fraudulent
This is consistent with the findings of Jawead Allah Rakha & 176 ors v Prinsiptek (M) Sdn Bhd , where the court rely on the Board to formulate its decision. This however is not a test case for the Board to decide on matter of fraudulent and criminal, but negligence instead, which many instances criminal act is extra jurisdictional beyond the scope of the Board, requiring curial intervention.
In the similar note, a CCC issued can only be disputed, specific to the transgression of the UBBL within the narrow ambit provided by the SDBA and such is affirmed in Aini Ismail & Ors v OSK Properties Sdn Bhd & Ors . Where a waiver is granted i.e. submission of amendment plans or the issue is not pleaded, this cannot be a transgression. As to the question of whether an ‘amendment drawings’ necessitated to be submitted to the local authority (‘LA’) prior to issuance of the CCC? Undoubtedly, it is vested upon the pleasure of the LA as demonstrated in Lembaga Jurutera Malaysia (BEM) v Leong Pui Kun , the effects of waiver of a requirement under the UBBL, i.e. submission of the structural calculation, eventually lifted the liability of the Engineer of any wrongdoing on his part even though the ‘link way bridge’ has collapsed. Thus, it is difficult to say the ‘buck’ stop with the Architect when he is allowed to submit his CCC, even when the work on site does not necessarily reflect the approved drawings as accepted by the LA under the provision of UBBL 11.
One must realise that CCC issued negligently and fraudulently are entirely different things governed by different aspects of law. Penalty meted out by the Board range from just a letter of reprimand, fines, suspension and strike off from the roll. However, there arise an argument that the Board is not the right forum to deal with matter affecting the livelihood of a person, guaranteed by the Constitution of the Land. Having said that the transgression of the UBBL such as fraudulently acquired CCC is within the narrow ambit of the SDBA, the maxim ‘lex specialis derogat legi generali’ prescribed in the event of transgression the SDBA takes precedent. Thus, only penalties such as fine not exceeding RM 250,000 or to imprisonment not exceeding 10 years or to both can only be meted out by the courts under SDBA.
Then, the issue with the negligently or fraudulently issued CCC, void ‘ab initio’? ‘There are no provisions in statute or under any UBBL which cater for the invalidation of a CCC issued by a PSP. While a PSP may be penalised for issuing a CCC in contravention of statutory requirements the CCC issued however remains intact.’ If we construe the submission of the Building Plan to the LA as a ‘contract’ between the PSP and the LA, a negligently or fraudulently issued certificate, cannot render the ‘contract’ illegal, as such the law on voiding the CCC remains a lacuna.
Cause of Action
Case law demonstrated that prosecution against an Architect required prima facie evidence of fraud i.e. illegally issued CCC despite the fact that the LA had withheld such issuance and it is a fascinating fact to note that LA should not have intervened in the issuance of the CCC by the Architect but the SDBA allows such to happen. In reality some LA went to the extent of issuing ‘letter of no objection’ to only allow CCC to be submitted for record. In Dua Residency Management Corp v Edisi Utama  HCJ Lim Chong Fong held the view as in KL Eco City v Tuck Sin Engineering & Construction, the responsibility for the failure of any building would prima facie lie with the qualified person (PSP) where the SDBA and the UBBL should not arbitrarily be interpreted to impose statutory duty upon the developer, thus a breach of the UBBL would give rise to a private action.
In my view, saying the ‘buck’ should automatically falls with the Architect, when something goes wrong, is irresponsible and such an act actually caused anxiety among Professionals, be it Architects or Engineers as these stakeholders are generally the PSP. The rules of law such as the ‘presumption of innocence’ must be upheld, as implied throughout BEM’s article mentioned above, as a response to an article, currently a subject of dispute. Therefore, it is entirely irresponsible to say, once, the Architect took the ‘statutory declaration’ as in the CCC, he has signed his ‘death sentence’.
 UBBL 25(A)
 Lee Shy Tsong v Amprojek Construction  1 LNS 2088
 < https://www.paulhypepage.my/corporate-compliance-in-malaysia-statutory-declaration/>, access 1 Sept 2022.
 1 LNS 1900
 MLJU 2428
 1 LNS 1409
<https://cccd.utar.edu.my/documents/Burden_and_Standard_of_Proof_in_Malaysian_Law_of_Evidence_compressed.pdf>, accessed 1 Sept 2022.
 9 MLJ
 Kanesh on Local Government Laws, (2022 CLJ), v.3,p.240: PJD Regency v Tribunal Tuntutan Pembeli Rumah  2 CLJ 441
 1 LNS 1380
 BEM, ‘Response by the Board of Engineers, Malaysia’ (2019 IEM), v.78 Ir p.72.
 1 LNS 396
 MLRHU 57
 UBBL 11.
 6 CLJ 93
 Article 5 – Right to life and personal liberty, Constitution of the Federal of Malaysia
 Specific law supersede general law.
 Tan Siew Hong v. Mohd Azli Abdul Hamid & Ors And Other Cases
 <http://home.sundrarajoo.com/wp-content/uploads/2017/12/CONSEQUENCES-AND-FLAWS-TO-THE-CERTIFICATE-OF-COMPLETION-AND-COMPLIANCE-COMPARATIVE-ANALYSIS-WITH-PROPOSED-SOLUTIONS-1.pdf>, accessed 8 Sep 2022.
 Pendakwa Raya v Chew Weng Leong  MLJU 1238
 1 LNS 74
 Kanesh on Local Government Laws, (2022 CLJ), v.3,1.2,p.7
 Sundra Rajoo v PAM [WA-23CY-61-10/2021]
THE SUPREMACY OF APPROVED-DRAWINGS
THE SUPREMACY OF APPROVED-DRAWINGS
This writing is to guide QS, contractors and graduate-architects into understanding the various drawings…
In the profession of an architect, it is common to know that there are various issuance of drawings, originated from his office such as, Schematic-Drawings (sometimes called sketch-drawing), BP-Drawings, Bomba-Drawings, SPA-Drawings, Tender-Drawings, Construction-Drawings, Shop-Drawings and As-built Drawings. What are these exactly, or rather legally?
There are three-statutory provisions that make a ‘drawing-legal’, means the architect will have to sign on it declaring, ‘certify that […] are in accordance to the UBBL 1984 and […] accept full responsibility’. One, the Uniform Building Bylaws 1984 (UBBL), the Housing Development (Control and Licensing) Act 1966 (HDA) and the Contracts Act 1950. The moment the architect submitted his Schematic-Drawings for the consideration of the local authorities, including the fire-departments, these Schematic-Drawings had been elevated to become BP-Drawings and Bomba-Drawings, respectively. Both are construed as a ‘legal-document’ undertakings of liability by the architect to the public (authorities). Collectively, once ‘approved’ it is known as Approved-Drawings. Since it is an undertaking, it has to conform to every terms of the law, failing which the architect is liable for professional-negligence and misconduct, tantamount to criminal charges. That is the degree and gravity of compliance.
The Approved-Drawings were to be translated into SPA-Drawings. In essence, it is supposed and legally should be an extract of the Approved-Drawings. In a nutshell, it is supposed to be the Approved-Drawings in manageable sizes to be inserted into the Sales and Purchase Agreement SPA between the Vendor and the House-buyer under the provision of the HDA. Therefore, it has no-further undertakings required by law, i.e. the HDA, thus, architect do not need to sign on it.
The same Approved-Drawings were to be expended to include ‘blow-up’ detailing for the contractor to tender and thus, the name Tender-Drawings. As such it is the same Approved-Drawings and any significant changes will rendered the entire tender illegal and voidable-contract, ab-initio. A contract cannot be upheld if the nature of the contract is illegal, i.e. without the Approved-Drawings. On the same note, architect do not need to sign on these drawings.
Similarly, when the contractor is appointed, the same Tender-Drawings must now, be elevated to be the Contract-Drawings and Construction-Drawings. Constructing a building with Construction-Drawings and contract-binding with Contract-Drawings that were differed from the Approved-Drawings will end up with colossal of contractual issues, not only to the contractor and employer but the vendor and its purchaser as well. Ultimately, to get strata-title, under the Strata Title Act 1985 and Strata Management Act 2013, the architect has to undertake that ‘the parcels constructed in accordance to the approved plans’. As-built Drawings that differed from Approved-Drawings are prima-facie of the architect ‘sleeping on the job’. Thus, you don’t need the architect to sign on the Contract-Drawings, As-built drawings and Construction-Drawings.
Having said that, there is also something called the ‘Shop-Drawings’, and this ‘creature’ is not meant to be used as Construction-Drawings. Only ‘lazy-architect’ will use ‘shop-drawings’ as construction-drawings. It is also, illegal to append the Architect’s title-block in shop-drawings, simply because, it is not-prepared by him. It is prepared by specialist-contractors, manufacturers and generally, contractors. Why on earth must it contain the architect’s title-block? The correct application of shop-drawings is to be incorporated into the architect’s construction-drawings and not the other way around. Legally, contractor must not build based on drawings not specified as construction-drawings.
As such, do you now, see how important is the Approved-Drawings? The only drawings that must be approved, be tendered and be built by it! Nothing else matter…
Postscript: Vincent Tan wrote, ‘We found the contractors does not followed As-built drawing. Meaning what was supposed to be installed was not consistent with the As Built. Can the developer come back and say " we will amend the as built drawings" to make it consistent with actual site installation?’... this question required me to write more about ‘As-Built Drawings’. The meaning of ‘As-Built’ is a prima-facie of what has been built on site, itself an evidence if it does not reflect compliance to ‘Approved-Drawings’, it is entirely illegal and caused ripple across the myriad statutory obligations contravening these legislatures from UBBL 1984, HDA1996, STA 1964 to SMA 2013. It is common for the local authority to request the architect to submit ‘As-Built’ prior to CCC inspection, as a short-cut to amendment of Approved-Drawings. This has since rebuked in the ‘Highland Tower’ Case, where the court held that the practice of ‘As-Built’ is liked ‘holding ransom’ against the authorities compelling them to accept the ‘illegality’ wholesale, to make it legal. Thus, such unhealthy practices are still ‘rampant’. So, the answer to Vincent’s question is ‘Yes’ as developer can use ‘As-built’ to be ‘legalized’ by authorities, since they have the rights under UBBL to amend the ‘Approved-Drawings’ to reflect the ‘As-Built’. Thus, the practical use of the ‘As-Built’ is when an architect really needs to know an existing structure to work on it as renovation or makeover.
 UBBL 1984, 2nd Sch. Form-A; s.6UBBL1984
 S.9(1)(b)(i): certified by professional architect [that] building constructed in accordance with [approved-plans] to which permission was given.
I am sharing these information with a caveat that these information is for educational purpose only and shall not be taken as an advice be it legal or otherwise. You should seek proper advice to your case with the relevant professionals. The author cannot guarantee the accuracy of the information so provided here.