There have been cases of false declarations in the housing industry. Read on to find out the functions of a statutory declaration, what prescribed wording is necessary for it to be enforceable and the legal consequences of making a false claim.
Why are Statutory Declarations important?
The basic purpose of a statutory declaration is to provide written proof to confirm something that is either too tedious or impossible to verify. In other words, it is used to obtain confirmation of execution of any deed, written instrument or allegation or proof of debt that would otherwise be too impossible to prove.
Statutory declarations are commonly used for procedural matters. For example, a first-time house buyer would be required to submit a statutory declaration to say that he does not already own a residential property, in order to be entitled to the benefit of purchasing a unit in a low, medium or affordable housing category. Another example would be where a business license applicant may need to attest that he is not declared bankrupt.
In a contractual context, if a person made an ordinary statement that turned out to be untrue, this would merely amount to misrepresentation and it would constitute a breach of contract, which might lead to civil action (a noncriminal lawsuit that begins with a complaint). Whereas, if a person made a false statement by way of a statutory declaration – apart from being a misrepresentation, it would be tantamount to a criminal offence under the Penal Code and such person could be prosecuted.
Example of a Statutory Declaration
The managing director of a property development company sworn a statutory declaration that his company will continue to abide by the ‘bumiputra quota’ imposed by the State Authority’s policies and will not deviate from the process. He swore the truth and accuracy of his declaration under the law. Somehow, at a later stage, the company oversold the ‘bumiputra quota’ to non-Bumi purchasers and hence committed a wrongdoing.
How are Statutory Declarations governed in Malaysia?
The law that governs statutory declarations in Malaysia is the Statutory Declaration Act 1960 (SD Act). The SD Act requires documents requiring statutory declaration to be sworn or declared its accuracy and truth with no elements of misrepresentation.
In Malaysia, the Notary Public or Commissioner of Oath may take and receive the declaration of any person voluntarily, making the declaration in Malay or English language in an appropriate form, in accordance with Section 2 of the Statutory Declaration Act 1960. A person making a declaration must also pay a fee to the officer or Commissioner taking the declaration.
The SD Act further provides penalties against people who make false declarations and these punishable sections are laid down under Section 199 and Section 200 of the Penal Code. For instance, Section 200 lays out: Whoever corruptly uses or attempts to use as true any such declaration knowing the same to be false in any material point, shall be punished in the same manner as if he gave false evidence.
In essence, the SD Act states that people who make false statutory declarations will be charged and shall be punished with imprisonment for a term up to seven years and shall also be liable to a fine.
CHECK OUT: Freehold vs Leasehold title in Malaysia: What property buyers should know
How to write a Statutory Declaration?
All statutory declarations must contain the following wording:
Statutory Declaration
“I (name)(identity card nos) of (address) do solemnly and sincerely declare that……….
…………………………………………………………………..
…………………………………………………………………..
And I make this solemn declaration conscientiously believing the declaration to be true and by virtue of the Statutory Declaration Act 1960.”
Affirmed by (name)
At: (place)
On (date and time)
Before me,
SIGNATURE
Commissioner for Oaths
It is prudent that a declaration must be made in compliance with the said Statutory Declaration Act. A declaration would not qualify as one within the meaning of Section 199 of the Penal Code if there is an omission. In the case of Yeoh Oon Theam v Pendakwa Raya [2016] MLJU 406, the Court of Appeal held that the statutory declaration is not a statutory declaration within the meaning of the Statutory Declaration Act 1960. The panel of judges were unanimous in their decision, stating that:
Section 2 of the SD Act 1960 prescribes that a Statutory Declaration shall be in the form in the Schedule. We have scrutinized the SD and agree with the learned counsel for the appellant that the SD is incomplete. The SD does not contain the vital words “….. and I make this solemn declaration conscientiously believing the same to be true and by virtue of the provisions of the Statutory Declaration Act 1960.” -The Hon. Justice Tengku Maimun Binti Tuan Mat, The Hon. Justice Vernon Ong Lam Kiat and The Hon. Justice Abdul Karim Bin Abdul Jali-
Is something more true just because it is sworn in a statutory declaration?
It makes no difference whether one signs a statutory declaration or not. The accuracy of the contents in a statutory declaration is not guaranteed by signing it. A maker can still make a declaration without believing the truth of its content. Hence, according to the Statutory Declaration Act 1960, if one has made a false declaration or has made conflicting declarations, one is answerable to criminal sanction/punishment such as a fine or jail term imposed by the state.
It is a trite law that the prosecution has the duty to prove all the ingredients of a charge before it can be said that a prima facie case has been made out. According to Section 199 of the Penal Code, the prosecution must prove the following ingredients namely:-
(1) The accused had made a declaration;
(2) The declaration that the accused made is receivable as evidence;
(3) The declaration contained a false statement, which, either the accused knew or believe to be false, or the accused does not believe it to be true;
(4) The false statement touching or connecting with the object of the making of the declaration.
MORE: What happens when a property development changes ownership?
Perjury
Perjury is an offence of willfully telling an untruth or making a misrepresentation under oath. It is a criminal offence of making a false statement while giving testimony during a legal proceeding. As stated in Section 193,
Whoever intentionally gives false evidence in any stage of a judicial proceeding, or fabricate false evidence for the purpose of being used in any stage of a judicial proceeding, shall be punished with imprisonment for a term which may extend to seven years, ad shall also be liable to fine; and whoever intentionally gives or fabricates false evidence in any other case, shall be punished with imprisonment for a term which may extend to three years, and shall also be liable to fine.
Every competent witness giving evidence in court is bound to take an oath as provided under Section 6 of the Oath and Affirmation Act, 1949. By taking an oath, a witness is required to tell the truth and nothing but the truth. If a witness is found to have given a false testimony after taking an oath, he may be charged under Section 193 of the Penal Code for perjury. On a plain reading of Section 193 of the Penal Code, it is clear that this section applies to a witness who gives false evidence regardless of whether the evidence is given through written statement or orally.
In the well-known murder case of Deputy Public Prosecutor Dato Anthony Kevin Morais: a lady who appeared as a prosecution witness in the trial of the murder case was found guilty under Section 193 and has been sentenced to four years jail for perjury over her false testimony in Court. She gave evidence knowing the same were untrue. The alleged statement was said to be in contradiction with a statement she gave to the police.
Conclusion
The existence of these penal sanctions allows the prosecutors (federal and state) to take action to prosecute the wrongdoers for making false statements in their declaration or telling the untruth and lies in the Court of Law. Those who are found guilty under Section 199 and Section 200 of the Penal Code must be punished to send shivers down their spine as to prevent further deliberate offences from being committed.
This article is intended to offer an insight into the Statutory Declaration Act 1960 and of the case authorities and is not intended to be nor should it be relied upon as a substitute for legal or any professional advice.
This article is jointly written by Datuk Chang Kim Loong, Hon Sec-Gen of the National House Buyers Association (HBA) and Jo Ee, Chang, Bachelor of Law (Hons), University of Essex.
TOP ARTICLES JUST FOR YOU:
Commercial vs residential: Can I convert commercial title to residential title?
Can I cancel a house purchase after signing the SPA?