IN THE MAGISTRATE COURT AT KOTA KINABALU
IN THE STATE OF SABAH, MALAYSIA
CASE NO: 77-20-2007
(Small Claim Procedure)
BETWEEN
OTHMAN BIN
AHMAD ...
PLAINTIFF
AND
TAN SIEW CHOU ...
DEFENDANT
PEMBELAAN KEPADA TUNTUTAN PEMBATALAN KES
1. The procedure used to request for a dismissal of this case is not
valid because this case is under a separate order 54 with its own separate
procedures for filing of cases and there is no allowance for any dismissal of
any case prior to hearing.
2. The court should also note the intention of the Parliament in
instituting the Small Claims procedures that are already widely used much
earlier in other commonwealth nations, notably Singapore. The judges in Singapore in Small Claims procedures are referred to as a referees only who should listen
to all cases. This court will be a mockery of the world if it were to allow
higher court procedures to override the small claims procedures as written in
order 54.
3. The plaintiff objects to the late submission of this application for
dismissal. Despite having been given the plaintiff's reply to the defendant's
statement of defence, at which time the intention to request for consideration
for dismissal of this case was made, it took the defendant more than three
weeks to submit this application to the plaintiff on the 12th of
June, 2007, just one week before the date of the second hearing. This shows
the malicious intent of the defendant throughout the plaintiff's dealings and
requests for justification for obviously unjust actions. The plaintiff strongly
objects to this short notice and the court should consider this as a ground to
dismiss this application for dismissal for this case which is under the small
claims court. Please take into account that this small claims court procedure
is only for claims less than RM5000. The plaintiff is an ordinary citizen who
has to take care of other matters and have no monetary justification to engage
lawyers to prepare this case. One week is too short for normal citizens, who
are not legally trained, to prepare an answer to legally prepared documents.
Under this circumstance the intention to delay this submission is malicious in
intent.
4. In paragraph 1 of the notice of application for dismissal, the claim
that this case of the small claims procedure discloses no reasonable cause of
action is malicious in intent again. The plaintiff claims that the defendant
has broken the very act that LHDN was formed and governed as well as the
Anti-corruption act. The only defence offered is that the defendant is immune
from any prosecution contrary to the constitution that every citizen is equal
before that law and the acts and previous court cases never allow any civil
servant to act not in good faith.
5. In paragraph 2 of the notice of application for dismissal, whatever
costs that need to be awarded must comply with order 54 under which this case
was filed.
6. In paragraph 1 of the grounds for the application for dismissal, the
acts and court cases does not support the argument that the defendant cannot be
sued for damages if a government employee breaks the law with malicious intent
and not not in good faith. The cases against the police officers who were
prosecuted on their personal capacities for alleged rape of detainees under
their care and authority were recorded in Kota Kinabalu in the case of the
Menggatal Detention centre for illegal immigrants and another court in West Malaysia.
7. In paragraph 2 of the grounds for the application for dismissal, in
section 21 of the Inland Revenue Board of Malaysia Act(Act 533) does not
protect employees who are not acting in good faith(“for anything which is
done in good faith”). The immunity against legal proceedings is conditional on
good faith. The plaintiff's claims that the defendant has falsified documents
and exceeded the authority granted by the acts in imposing penalties for taxes
that had already been paid, had never been addressed by the defendant, and are
certainly not within the performance of her official duties. The plaintiff
finally realised that this is not the fault of the government or Members of
Parliament who passed these laws but the fault of employees who are breaking
the laws that were passed by Parliament.
8. Section 21 of the Inland Revenue Board of Malaysia Act(Act 533) must
be interpreted in full as demonstrated by the judgement “A taxing statute has
to be strictly construed and tax cannot be imposed unless there are clear and
unambiguous words which show an intention to tax a subject: Supreme court
National Land Finance Co-operative Society Ltd. v Director general of Inland
Revenue (1994) 1 MLJ 99”.
9. In paragraph 3 of the grounds for the application for dismissal, is
again malicious in intent. By not considering the section in full, the
defendant has violated the judgement mentioned in the paragraph above. The
phrase “for anything which is done in good faith” is completely ignored. By
ignoring this phrase, it has led to the false belief that the defendant is
completely immune from any prosecution, which had led to the obviously illegal
acts committed against the plaintiff. The plaintiff is therefore entitled to
damages as allowed by law.
10. In paragraph 4 of the grounds for the application for dismissal,
Section 29(1) and (2) of the Inland Revenue Board of Malaysia Act(Act 533)
refers only to the board, not to its employees. This statement of claim is
against the employees of the board that has violated the Income Tax Act as
allowed by Section 118 of the Income Tax Act by acting in bad faith and the
Akta Pencegahan Rasuah 1997, Akta 575. However the Plaintiff reserves the right
to sue any person or organisation as allowed by law. So the argument that the
plaintiff cannot sue the defendant by referring to this section is certainly a
case of misunderstanding of the English language. In fact the sections mentioned
clearly allowed court cases can be taken against the board, but the
organisation that will be named will the the government. This is natural but in
this case, the plaintiff is clearly mentioning a particular employee that
appears to have exceeded her authority as written by statue laws as well as
common law and principles of justice, and therefore the board cannot be faulted
sufficiently for significant damages to be claimed, unless the defendant
releases more evidences.
11. Therefore I urge the court not to be misled by the malicious
quotations of sections of statute acts in fragments and poor understanding of
the English language, and to refer to the plaintiff's previous documents filed
on this case.
Dated this 14th of June, 2007
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