Sunday, August 1, 2010

JPJ vs. Motorist’s Rights: Can JPJ Banned Blacklist Motorist/Vehicle from renewing licence or Road tax? NO!! So please stand for your rights!


 

Salam and Hi All,


 

It is Sunday (and good weather for lazy morning L, arrrg! ), I got a Yahoo Messenger BUZZ from my good lawyer friend from Kuantan complaining and asking me to join him in preparing Mandamus or Judicial Review or Certiorari Suit against JPJ (Road Transport Department) . So I asked, 'what the fuss?' 'Can't renew Road tax', he replied. I asked, 'yours?'. 'No, not mine, just one of my relative'. So I asked further, 'how come?' he said, 'she got 28 summons and blacklisted!' what a driver J I thought. Anyway, as we discussed, he told me that there is one case law in Sarawak whereby a High Court Judge had given pretty good judgment regarding this matter (so that I remember reading the case law sometime ago). He emailed me the case law and I thought it is good to share here in this blog.

It is a 21 pages of case report, so it is quite lengthy to 'copy and paste' here. What I can do is to put the case headings and the findings, and I will comment (summarised) it for you.

LEONARD LIM YAW CHIANG

v.

DIRECTOR OF JABATAN PENGANGKUTAN JALAN

NEGERI SARAWAK & ANOR


 

HIGH COURT SABAH & SARAWAK, KUCHING

ABDUL AZIZ RAHIM J

[JUDICIAL REVIEW NO: 8-2007-II]


 

24 NOVEMBER 2008

ADMINISTRATIVE LAW: Exercise of administrative powers -Judicial review - Refusal to issue motor vehicle licence - Certiorari and mandamus - Applicant blacklisted by respondents due to an outstanding summons - Whether decision to blacklist applicant and not issue him with licence unreasonable and unlawful - Road Transport Act 1987, ss. 15(1), (4), 17(1)(d) - Federal Constitution, art. 13


 

ADMINISTRATIVE LAW: Remedies - Certiorari and mandamus -Refusal to issue motor vehicle licence - Applicant blacklisted by respondents due to an outstanding summons - Whether decision to blacklist applicant and not issue him with licence unreasonable and unlawful – Road Transport Act 1987, ss. 15(1), (4), 17(1)(d) - Federal Constitution, art. 13


 

ROAD TRAFFIC: Licence - Motor vehicle licence - Refusal to issue - Application for orders of certiorari and mandamus - Applicant blacklisted by respondents due to an outstanding summons - Whether decision to blacklist applicant and not issue him with licence unreasonable and unlawful - Road Transport Act 1987, ss. 15(1), (4), 17(1)(d) – Federal Constitution, art. 13


 

I do

Held (allowing the application; Deputy Registrar to assess

damages suffered by applicant):


 

(1) The language in s. 17(1)(d) of the RTA should be given a strict and narrow interpretation to avoid injustice done to motorists in that the expression "outstanding matter or case with the RTD or the police relating to any contravention of or offence against the RTA or the CVLBA" should be confined only to a matter or case that has gone to court and in which the applicant had failed to appear to answer the

charge on the offence or contravention for which the summons was issued, and also to a matter or case under investigation by the RTD or the police and pending the outcome of such investigation. In this case, there was no evidence that the 2nd respondent had satisfied himself that the applicant had been charged in a court of law for the offence stated in exh. L2 or whether the offence alleged had been

proven in a court of law against the applicant. (paras 39 & 40)


 

(2) The exercise of discretion by the 2nd respondent not to issue the motor vehicle licence to the applicant in respect of the said vehicle had violated the principle of "Wednesbury unreasonableness". In public law, it is one of the well recognised grounds upon which a decision of a public decision-maker may be challenged in the courts. The recent trend of cases applying the "Wednesbury nreasonableness"

principle in judicial review shows that it is not confined only to the examination of the process of decision-making but also to the merits of the decision. (para 44)


 

(3) On the facts, it was obvious on the face of exh. L2 that the offence which the applicant was said to have committed was an offence in the future. Whether the summons was wrongly dated as claimed by the respondents was a question of fact that could only be established after hearing all the evidence. On this fact alone, no reasonable man would blacklist the applicant because it was obvious that the summons could be challenged for this irregularity. (para 45)


 

(4) The blacklisting of the applicant was tantamount to compelling the applicant to admit to the alleged offence and pay the compound. This conclusion seemed to have the support of the Federal Counsel when she told the court that the purpose of s. 17(1)(d) of the RTA is to ensure that a person issued with a traffic summons pays the summons. Clearly, therefore, such purpose of the statutory provision would be an affront to the basic principle of criminal law that a person is presumed innocent until proven guilty. (para 47)


 

(5) Under s. 15(1) of the RTA usage of a motor vehicle on public roads requires a motor vehicle licence, and sub-s. (4) of the same section makes it an offence for using or permitting to be used a motor vehicle without a motor vehicle licence. Therefore, to deny a person a motor vehicle licence to which he is entitled upon complying with the requirements of the law is to deny the person the use and enjoyment of his motor vehicle. Such denial would also be in contravention of art. 13 of the Federal Constitution, under which a person cannot be deprived of his or her property except in accordance with the law. The meaning of deprivation in art. 13 should be interpreted liberally and broadly to include any act that would deprive a person of the use and enjoyment of his property. (paras 48, 49 & 50)


 

(6) Reading s. 17 of the RTA as a whole, it should be implied in s. 17(1)(d) that an applicant that has been blacklisted and refused a motor vehicle licence should also be notified of the blacklisting and refusal and be accorded an opportunity to make representation to the licensed registrar. This is pertinent because the blacklisting is done mechanically without any inquiry. It all depends on whether an applicant's name appears in the RTD's computer system as a person who has an outstanding matter or case with the RTD or police in relation to a contravention of or an offence against the RTA or CVLB. (para 55)


 

(7) Thus, the decision of the respondents to blacklist the applicant and not issue him with a licence for the said vehicle was not only unreasonable but also unlawful. (para 56)


 

My comments:-


 

  1. I do not wish to elaborate in details this case (for student who often call or email me, please do your home work find this case law and read), in short this case clearly put a guideline to the JPJ who refuse to issue licence or road tax due to blacklist or unsettled summons.
  2. In this case, the appellant seek justice in court to set aside or quash JPJ decision in refusing him motor vehicle licence.
  3. The learned judge highlighted certain points:-
    1. Everybody is innocent until proven guilty, so the decision of JPJ to ban motorist from getting their licence or road tax is unreasonable and unlawful.
    2. This is because the charge (summons) has not been proven yet in court of law, and JPJ has (mechanically or by computer listing) punished the motorist!
    3. Such act by JPJ is unconstitutional and unlawful.
    4. The act of JPJ to ban the motorist or blacklist them to force them to pay the outstanding summons would in my opinion 'skip the process of law to prove whether or not the motorist is guilty' and compelling the motorist to admit his charge. Punishment before proven guilty!


 

So, if you are facing this kind of problem you know now what your right is!

3 comments:

  1. lawan jangan tak lawan...

    ReplyDelete
  2. ala-ala I.S.A sekarang ni.

    ReplyDelete
  3. But what if government passes a retrospective laws?

    ReplyDelete