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Asserting your rights as a consumer
Lim Siew May 
Photo credit: 123RF
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IF you’ve ever been unhappy with an errant seller, know that your consumer rights may be stronger than you are aware of.

In the event that you have been short-changed or cheated by parties selling you goods and services, you can seek recourse at the Tribunal for Consumer Claims Malaysia. However, the reality is that not every consumer knows that such an avenue is available or how to proceed in making a claim.

Set up in 1999, the tribunal is an independent body that provides an alternative forum for consumers to settle disputes regarding goods and services acquired from traders or service providers in a simple, inexpensive and efficient way compared to the civil courts.

Filing fee is but a mere RM5, although your total amount claimed must not exceed RM25,000. Here’s the key question: Is it worth bringing your case to the tribunal when your claims are just a few hundreds or even a few thousand ringgit?


Monetary cost

Consumers considering judicial review should consult a lawyer first to assess the strengths of their case, as there are financial implications involved.” – Cheah

Donovan Cheah, partner of law firm Donovan & Ho, says this depends on one’s motivations. Some claimants are interested in obtaining a victory solely on principle, he observes. “Aside from monetary costs involved, consumers would also have to consider the opportunity cost in terms of time spent in managing the claim and appearing before the tribunal, to determine whether a claim is truly worth it,” he says.

In his view, it is rather hard to estimate the amount of time required if one were to opt for the tribunal route, since this will depend on the complexity of their case and subject matter. Complicating the timeline further are the dates for their hearing, which will depend on the tribunal’s schedule, says Cheah.

“Typically advises her clients, who are her friends and relatives, to settle the dispute out of the tribunal to save time, money and avoid going through unnecessary procedures and hassles.” – Yong

Yong Siew Lee, partner of law firm Yong SL & Partners, believes that it is generally more beneficial to settle the case with the seller in private. “I typically advise my clients, who are my friends and relatives, to settle the dispute out of the tribunal. This is the best way to settle the dispute. The party can save time and money and avoid going through unnecessary procedures and hassles,” says Yong, whose firm has handled more than 10 consumer claims.


Seeking help from experienced parties

Should you decide to take a trader or supplier to task at the tribunal, there are a few strategies that you can adopt to increase your likelihood of winning.

One of the strategies is to seek help from experienced people. “Sometimes the claimants are clouded by anger and prejudice, and may not see what the case is missing. They can seek help from third parties with experience on the tribunal. They could be lawyers with experience dealing with the tribunal, or journalists who report on tribunal cases. Claimants can ask them for their advice on whether they have a strong case,” Yong explains.


Strengthening your evidence

The next strategy is to gather as much details as possible, such as written evidence and a relevant picture that pertains to your claim. “For instance, if you purchase expired goods, you may think that you can just take a photo of the product with the expiry date, and that should make for a strong evidence,” Yong says.

However, based on Yong’s experience, you can lose your case if you only have a picture of the expired goods. “Sometimes, your evidence is not detailed enough. Besides the expired goods, you need to keep the receipt and include other details like when and where you purchased the goods, the salesperson’s name, the location and condition of the shop, which will be relevant to your case if it pertains to damaged goods,” she explains.

Cheah couldn’t agree more, pointing out how consumers should ensure they document all discussions in writing. “Written correspondence such as letters, text messages and emails should be kept in an organised fashion so they can be used as evidence later,” he advises, adding that the most common mistake is not documenting discussions and meetings.

“Without a contemporaneous record, it becomes difficult to prove what was said verbally or in a meeting. Written records will often help corroborate a consumer’s version of events, and increase their credibility,” he says.

Interestingly, it could also work as a psychology game that could swing the odds in your favour even before you step into the tribunal. “When you show that you have a strong case based on the evidence you have gathered, it makes it very difficult for traders to defend the case, which may convince them that it’s better to settle out of the tribunal,” Yong says.

She observes that most of the time, when the case is settled out of the tribunal, traders will fulfil what the consumers want, which could include replacement of goods and refund of money. Otherwise, consumers will insist to proceed to the tribunal.

“Ultimately, the tribunal president will also advise you to reach a settlement during the hearing. If you insist on proceeding with the hearing, you have to call witnesses and prepare for the hearing. This will cause unnecessary trouble for both parties as opposed to settling it outside of the tribunal,” says Yong.


File claims early

Although the deadline to file a claim at the tribunal is much longer at three years from the date of the dispute, it’s beneficial to file the claims as early as possible from the date of dispute or date of realisation of damaged goods, says Yong.

“If you don’t file as early as possible, the other party can change or remedy the evidence, which results in you losing your case. For instance, the details printed on your receipt may fade over time, some evidence may go missing, all of which will tarnish your claim,” she says.

Filing your claim early is also advantageous when you want to call in witnesses, Yong adds. “As time goes by, the witnesses may forget certain information and details. Similar to court matters, the earlier you file, the better it is. Otherwise, evidence may go missing, witnesses may forget the details, and all these factors will affect the claim.”

Winning strategies aside, it also pays to understand the common mistakes and challenges faced by consumers when they have a dispute with sellers. Ultimately, knowing what works and what doesn’t helps shape your desired outcome.

In Yong’s experience, the first common mistake would be to neglect to issue a notice to traders or suppliers before filing their claims to the tribunal. “Some also don’t understand the procedure, and are unaware that they need to serve the notice to the trader by hand or via registered post, which causes a delay in their hearing,” she says.

In some cases, Yong notes that consumers may quote the wrong information or details during the hearing, which may jeopardise their cases. This underscores the importance of preparation – from gathering of evidence to listing down the sequence of events.

“They can actually eliminate this mistake by putting all the information on a paper or script, then bringing the relevant documents into the court so they can cite the information more accurately,” she says.


Understanding common mistakes

It is not uncommon for some consumers to opt for a short cut when arguing their case in the tribunal. “During the hearing, they are not well-prepared with their facts and evidence. They expect the judge or president to gather the evidence themselves and help them to win the case. They don’t know that this is a very hands-on procedure, and that evidence submission all depends on the consumers themselves,” Yong points out.

When a dispute arises, consumers should always approach the sellers first where possible, Yong advises. “A majority of the consumers would proceed directly to the tribunal, which means the trader or supplier does not have the chance to explain or defend their case. This is a big mistake,” she says.

She acknowledges that technically, you can file your claim directly with the tribunal without negotiating with the trader in advance. There is, after all, no requirement from the tribunal that you should talk to the party involved first.

“Before you proceed to file your claim, I advise consumers who are my friends/relatives to listen to the traders’ defence first. You might be surprised and decide to settle your case out of the tribunal after hearing their explanation,” she adds.

When to take matters to the civil court

ASSUMING your claim exceeds the Tribunal for Consumer Claims Malaysia’s maximum limit of RM25,000. Should you hire a lawyer to go to the civil court, or should you represent yourself at the tribunal and forego the difference?

Whether it’s worth it to go to the court, consumers will have to consider two points, which are quantitative and qualitative factors, says Yong Siew Lee, partner of law firm Yong SL & Partners. 

Quantitative factor pertains to the amount of your claim. Hiring a lawyer is not going to be cheap, and if you need the lawyer to travel to a different state, be prepared to spend more, Yong points out. “It’s best to get a few quotations from different lawyers, they will set out the job scope for you. If it extends beyond this, they will increase the professional and disbursement fees,” she says.

According to Yong, legal fees can be quoted on a case-by-case basis, and it depends on the complexity of the matter. “No lawyer can give you a standard quotation. If your claim is a small amount after paying legal fees, it defeats the purpose under the quantitative consideration,” she says.

Qualitative, on the other hand, has to do with the seriousness of the matter of injury, losses or damage, Yong points out. “For instance, a consumer may have purchased a dubious healthcare product, which will cause serious side effects to his health. Because of the seriousness of the matter, he may deem it worth bringing to the court,” she says.

On another hand, Donovan Cheah, partner of law firm Donovan & Ho, believes that consumers should consider hiring a lawyer when there are complex legal issues, or if the value of the claim is sufficiently high to warrant incurring legal fees. “Alternatively, a consumer may wish to hire a lawyer if they do not have the time, or don’t want to manage or pursue a claim personally,” he concludes.
 

Applying for judicial review

DISSATISFIED with the decision of the Tribunal for Consumer Claims Malaysia? You have the right to apply to the High Court for a judicial review of the decision within three months from the date of the decision.
 
On when is it worth it to make such a move, Yong Siew Lee, partner of law firm Yong SL & Partners, points out that the application for judicial review is done on a case-by-case basis. 

“If both the trader and consumer can reach an agreement during the settlement hearing, they are not allowed to challenge the tribunal’s decision unless there’s a mistake in recording their decision,” she points out. 

Judicial review, Yong clarifies, is more on misconduct or abuse of power of the president of the tribunal, rather than your dissatisfaction with the award. 

“If you feel that the award is not in your favour, you need to provide further evidence and consult a lawyer to give you advice, so they can help you analyse the facts before you apply for judicial review,” she says. 

“For judicial review, you must have further evidence that the president of the tribunal has abused his power. In my view, it would be difficult for the laymen to identify, analyse and find further evidence on this.”

Speaking from personal experience, Yong has not filed any application for judicial review of the tribunal’s decision. “People will usually accept the award and don’t further challenge it,” she reveals.

Similarly, Cheah agrees that the tribunal’s decision can be quashed through the judicial review process in limited situations only, such as where the tribunal has acted in excess of its statutory powers, or where there is an obvious breach of natural justice. 

“Consumers who are considering judicial review should consult with a lawyer first to assess the strengths of their case. This is because there are financial implications involved if they are unsuccessful in their judicial review, as they could be ordered to pay legal costs to the other party,” he cautions. 
 
What the tribunal can’t do

A COMMON mistake made by consumers is that they don’t understand the limitation of the Tribunal for Consumer Claims Malaysia’s jurisdiction, notes Yong Siew Lee, partner of law firm Yong SL & Partners. 

While the filing cost is low, their ignorance results in them wasting precious time filing claims and serving notice to the other party, only to realise that they can’t proceed with the hearing of the tribunal, she observes.

Beyond the claim limit of up to RM25,000, there are a few categories that are not within the tribunal’s jurisdiction. For instance, you cannot bring land matters or disputes with professionals to the tribunal as these are out of its jurisdiction, says Yong.

According to Ministry of Domestic Trade, Co-operatives and Consumerism, the tribunal has no jurisdiction to hear any claim as follows: 

• Arising from personal injury or death;

• For the recovery of land or any estate or interest in land;

• Dispute in respect of title of any land or estate or interest in land;

• Dispute concerning the entitlement of any person under a will or on any intestacy;

• Dispute on matters in respect of: Franchise; Goodwill; Trade secrets or other intellectual property; Any chose in action*; and

• Where any other tribunal had been established under any other written law to hear and determine claims on matters which is the subject matter of such claim.

* According to USLegal, a chose in action refers to all personal rights to property which can only be claimed or enforced by an action, rather than by taking physical possession of the property. 


This article first appeared in Focus Malaysia Issue 244.