MY OPINION: SIGNING THE CCC, EQUALS ‘DEATH SENTENCE’?

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’).

Statutory Declaration
The provision of the issuance of the Certificate of Completion and Compliance (‘CCC’)[1], 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.”[2]

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.[3] 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 [2018][4], Wan Adli v Gema Mantap Sdn Bhd [2020][5] and The Haven v Jason Ong Kian Heng [2018][6]

What happened if such ‘statutory declaration’ is breached? Under the same Act, the declarant, if found guilty, can be charged under criminal.[7] 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.[8] 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 [2022][9], 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.[10]
 
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 [2019][11], 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.[12]  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 [2021][13], 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.
 
Waiver
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 [2017][14]. 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[15] as demonstrated in Lembaga Jurutera Malaysia (BEM) v Leong Pui Kun [2008][16], 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.

Penalty
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.[17] Having said that the transgression of the UBBL such as fraudulently acquired CCC[18] is within the narrow ambit of the SDBA, the maxim ‘lex specialis derogat legi generali’[19] 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.
 
Void
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.’[20] 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[21] i.e. illegally issued CCC despite the fact that the LA had withheld such issuance[22] 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 [2021][23] 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.[24]

Conclusion
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.[25] Therefore, it is entirely irresponsible to say, once, the Architect took the ‘statutory declaration’ as in the CCC, he has signed his ‘death sentence’.
 
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[1] UBBL 25(A)
[2] Lee Shy Tsong v Amprojek Construction [2018] 1 LNS 2088
[3] < https://www.paulhypepage.my/corporate-compliance-in-malaysia-statutory-declaration/>, access 1 Sept 2022.
[4] 1 LNS 1900
[5] MLJU 2428
[6] 1 LNS 1409
[7] [n.1]
[8]<https://cccd.utar.edu.my/documents/Burden_and_Standard_of_Proof_in_Malaysian_Law_of_Evidence_compressed.pdf>, accessed 1 Sept 2022.
[9] 9 MLJ
[10] Kanesh on Local Government Laws, (2022 CLJ), v.3,p.240: PJD Regency v Tribunal Tuntutan Pembeli Rumah [2021] 2 CLJ 441
[11] 1 LNS 1380
[12] BEM, ‘Response by the Board of Engineers, Malaysia’ (2019 IEM), v.78 Ir p.72.
[13] 1 LNS 396
[14] MLRHU 57
[15] UBBL 11.
[16] 6 CLJ 93
[17] Article 5 – Right to life and personal liberty, Constitution of the Federal of Malaysia
[18] s.70(27)SDBA
[19] Specific law supersede general law.
[20] Tan Siew Hong v. Mohd Azli Abdul Hamid & Ors And Other Cases
[21] <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.
[22] Pendakwa Raya v Chew Weng Leong [2015] MLJU 1238
[23] 1 LNS 74
[24] Kanesh on Local Government Laws, (2022 CLJ), v.3,1.2,p.7
[25] Sundra Rajoo v PAM [WA-23CY-61-10/2021]