TAI CHOI YU v GOVERNMENT OF MALAYSIA & ORS

Parties to the case:

Plaintiff - Tai Choi Yu
1st Defendant - Government OfMalaysia
2nd Defendant - Director of InlandRevenue, Sarawak
3rd Defendant - Defendant, to theDirector of Immigration, Sarawak
Facts of the case:
The facts of the case may besummarised as follows: ( before apeeal)

The Plaintiff is an Advocate of theHigh Court in Borneo.Income tax was assessed as dueand
payable by the Plaintiff for theyears of assessments 1979(additional), 1981 (additional), 1983and
1984 (additional). A sum of RM231,016.95 was accordinglyadjudged against the Plaintiff
underMiri High Court Suit No.MR.46/1986 by an order of theCourt dated 9.10.1989.
However,further tax became due and in 1987the total sum outstanding duefrom the Plaintiff
including thejudgment sum wasRM246,482.39. The Plaintiff madesome payments between
4.11.1987 and 15.2.1988 totallingRM7,149.75 leaving the balance of RM239,332.64 when
theimpugned Certificate dated27.6.1988 (hereinafter called "theCertificate") was issued
pursuantto section 104 of the Income TaxAct, 1967 (Act 53) (hereinaftercalled "the Act")
by the Director ofInland Revenue Sarawak, the 2ndDefendant, to the Director ofImmigration,
Sarawak, the 3rdDefendant. Although the Certificate was issuedthe Plaintiff was not prevented
fromleaving Sarawak and Malaysia. Hewas also not informed of theissuance of the Certificate.
Further payments were made by thePlaintiff on the 14.6.1988 and2.7.1988 totalling
RM6,812.70. Butsecond additional tax assessmentwas made for the years 1979 to1986
resulting in the sumoutstanding as tax due and payableamounting to RM368,744.89 as
of15.6.1991.No further payment has been madeby the Plaintiff and there is anappeal, part-
heard, before theSpecial Commissioners.On the 20.4.1990 the Plaintiffapplied for the
renewal of hispassport at the Immigration Department, Miri, Sarawak as thepages of his then
existing passporthad been used up although itsvalidity was only expiring on the9.9.1990.
In effect therefore theapplication was for a renewal of hispassport before the expiry date.For the
application for renewal thePlaintiff submitted the original extract copy of hisbirth certificate
enclosed togetherwith the duly completedapplication forms and his payments of RM100.00
andan additional sum of RM4.00 forpostage fee with receipts dulyissued as No. 087852 and
No.343991 respectively.These documents weredespatched to the ImmigrationDepartment
Kuching. On or about the 22.4.1990 thePlaintiff made a telephone call tothe Immigration
DepartmentKuching enquiring about hisapplication. The Plaintiff wasinformed by an officer
in thepassport section of the saidDepartment of the existence of the Certificate. There was
also communicationbetween the Plaintiff and the 3rdDefendant in that on the
12.4.1991through his Advocates the Plaintiffwrote to the 3rd Defendant seekingfor the
reasons in the delay of therenewal of his passport. The saidletter requested for a reply
within 7days failing which the Plaintiff wouldassume that his allegation to wit, therefusal to renew
the passport due tothe Certificate, was true. The 3rdDefendant did not reply to the
letterthough the letter was received on the20.4.1991.Hence, on the 23.4.1991 the
Plaintiffcommenced this action by way ofOriginating Summons as amendedby an order
of the Court dated16.3.1992.The notice of issuance of theCertificate dated 16.5.1991
wasserved on the Plaintiff by the 2ndDefendant on the 17.5.1991.
Issue of the case

The main issue: Section 104 of theIncome Tax Act, 1967 (Act 53), itsscope and the
law, in relation to theactions of the 2nd and 3rd Defendants which were complained of.

Decision:

On 6 March 1993, the High Court atMiri dismissed the Plaintiff's applicationwith costs to
the Defendants to betaxed. The High Court at Miri refuse togrant the declarations prayed for by
thePlaintiff.

Issue(s) of the case: (on appeal)

The main issue in this appeal was whetherthe certificate issued by the DGIR under s104(1) of the Act
was valid because the DGIR did not give the Appellantthe right to be heard before making
adecision to issue the certificate; and (ii) the notice of the issue of the certificatewas only served on
the Appellant on16 May 1991.

Decision:

Held, dismissing the appeal:

The words 'leaving Malaysia' used insection 104(1) of the Act are plain and clear and it was not
appropriate to read the word'permanently' into the section. Theevidence showed that between
June 1988and April 1990, the Appellant travelledextensively overseas and stayed longer
inforeign lands than in Malaysia. In thecircumstances, the DGIR was justified informing
the opinion that the Appellantwould leave the country without settling histax.The DGIR was
not required to givenotice and hear the Appellant under s104(1) of the Act before
making hisdecision to issue the certificate. If a noticeto show cause was issued to the Appellant,it
would only serve as a warning of theaction to be taken against him and affordhim the
opportunity to leave the countrybefore the certificate can be issued.The delay in the service of
notice wasnot fatal so as to render the certificate nulland void. To hold otherwise could
onlydefeat the object and purpose of section104 of the Act and create inconvenience inthe
implementation of the section. As thecertificate was lawfully issued by the DGIR,the Appellant's
application failed undersection 104(5) of the Act. Convenient speed' means reasonabletime
within which an act has to be done, butalways having regard to the facts and peculiar
circumstances of each case.

Ratio(s):

The Supreme Court (SC) find that thewords used in this section are plainand clear, and the SC
do not think it isappropriate to read the word'permanently' into this section. The SCis of the
view that if that were theintention of Parliament, such words as'permanently' or 'with no
intention ofreturning' would have been insertedafter the words 'leave Malaysia' in thissection.
The SC decided that the DGIR did notact against the rule of natural justiceeven though the
Appellant had notbeen given a notice to show causewhy the DGIR should not issue
thecertificate. The SC is of the view that itis not the intention of the law to requirethe DGIR to
issue a notice to showcause because it would defeat theobject and purpose of the
certificate. Ifa notice to show cause was issued tothe Appellant, it would only serve as awarning of
the action about to be takenagainst him, and this would afford himthe opportunity to leave the
countrybefore the certificate can be issued.The SC referred to the case of SKulasingam
& Anor v Commissioner ofLands Federal Territory & Ors 1,where the Federal Court,
hearing a and acquisition appeal, held that sincethe Land Acquisition Act 1960imposed no
obligation on the acquiringauthority to afford the land owner theopportunity to be heard before
makinga decision to acquire the land, theowner could not claim the right to beheard under
the rules of naturaljustice. Hence, here too, the DGIR isnot required by s 104(1) to hear
theAppellant before making his decision.Therefore the SC is of the view thatthe DGIR is not bound
to give noticeand hear the Appellant before issuingthe certificate. Section 104(3) of the Act
does notimpose any time limit within which theDGIR must notify the Appellant that acertificate
had been issued under s104(1) of the Act. That being so,generally the provision of s
54(2) ofthe Interpretation Acts 1948 and 1967(Consolidated and revised, 1989)would apply.
This section states,'Where no time is prescribed withinwhich anything shall be done,
thatthing shall be done with all convenientspeed and as often as the prescribedoccasion arises.'.
What is 'convenientspeed' has been held by the courts tomean reasonable time within which anact
has to be done, but always havingregard to the facts and peculiarcircumstances of each case.

Stare Decisis:

Extract the rule/principle:

The SC here referred to the case of SKulasingam & Anor v Commissioner ofLands
Federal Territory & Ors 1, where theFederal Court, hearing a land acquisitionappeal, held
that – since the LandAcquisition Act 1960 imposed no obligationon the acquiring authority to
afford the landowner the opportunity to be heard beforemaking a decision to acquire the land,
theowner could not claim the right to be heardunder the rules of natural justice. Here too,the DGIR
is not required by s 104(1) tohear the Appellant before making hisdecision.

Application to the current case:

Here too, the DGIR is not required by s104(1) to hear the Appellant before makinghis
decision. The absence of theAppellant’s right to be heard is not aviolation under the
rules of natural justice.