BEFORE we start talking about Statutory Declarations (SD), let us ponder on two possible scenarios:
Scenario A: The managing director of a housing developer company sign a statutory declaration that his company will continue to abide by the “bumiputra quota” imposed by the authorities and not deviate from the process. He sworn the truth and accuracy of his declaration under the law. Somehow, at a later stage, the company oversold the “bumiputra quota” to non-bumi and hence committed a wrong doing.
Scenario B: A witness told lies in the Court of Law under cross-examination to “shield” him or other benefactor and hence committed an act of perjury.
The purpose of SD
The basic purpose for an SD is to obtain confirmation of execution of any deed via a written instrument or allegation or proof of debt which would otherwise be too impossible to prove. In other words, it is to provide written proof to confirm something that either deemed too tedious or impossible to verify.
SDs are commonly used for procedural matters. For example, a first-time house buyer would require an SD to say that he or she does not own a house to be entitled to the benefit of 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 or she is not a declared bankrupt.
In a contractual context, if a person made an ordinary statement which turned out to be untrue, this would merely amount to misrepresentation and that would constitute a breach of contract, which may result in a civil action.
Whereas, if a person made a false statement using an SD, apart from being a misrepresentation, it would tantamount to a criminal offence under the Penal Code and such person could be prosecuted.
The role and significance of an SD
The law that governs statutory declaration in Malaysia is the Statutory Declaration Act 1960 (‘SD Act’). The SD Act requires those documents requiring SD 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, as pursuant to Sec. 2 of the Statutory Declaration Act 1960. A person making a declaration by this SD Act shall pay a fee to the officer or Commissioner taking the declaration.
The SD Act further provides penalties against people who make false declarations pursuant to Sec. 3 of the SD Act 1960. These punishable sections are laid down under Sec. 199 and Sec. 200 of the Penal Code.
Sec. 199
“Whoever, in any declaration made or subscribed by him, which declaration any Court, or any public servant or other person, is bound or authorized by law to receive as evidence of any fact, makes any statement which is false, and which he either knows or believes to be false or does not believe to be true, touching any point material to the object for which the declaration is made of used, shall be punished in the same manner as if he gave false evidence.”
Sec. 200
“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 a false statutory declaration will be charged and shall be punished with imprisonment for a term which may extend to seven years and shall also be liable to fine.
How to word an SD
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,
Commissioner for Oaths
A declaration must be made in compliance with the SD Act. A declaration is not a declaration within the meaning of Sec. 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 SD is not a statutory declaration within the meaning of the SD Act 1960. The panel of judges were unanimous in their learned decision, verbatim:
“Section 2 of the SD Act 1960 prescribes that a SD 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 truth represented via SD?
In essence, it makes no difference whether one signs an SD or not. The veracity of the contents in a SD is not guaranteed by signing it. A maker can still make a declaration without believing the truth of its content.
So, according to the SD Act 1960, if one has made a false declaration or has made conflicting declarations, one is answerable to criminal sanction 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. Pursuant to Sec. 199 of the Penal Code, the prosecution must prove the following ingredients namely:
- The accused had made a declaration
- The declaration that the accused made is receivable as an evidence
- The declaration contained false statement, which, either the accused knew or believe to be false; or the accused does not believe it to be true;
- The false statement touching or connecting with the object of the making of the declaration
Perjury
Perjury is an offence of wilfully telling an untruth or making a misrepresentation under oath. It is a criminal offence of making false statement while giving testimony during a legal proceeding, as the following states:
Sec.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 (3) years, and shall also be liable to fine.”
Every competent witness giving evidence in court is bound to take an oath as provided under Sec.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 Sec. 193 of the Penal Code for perjury.
On a plain reading of Sec. 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 Datuk Anthony Kevin Morais: a lady who appeared as a prosecution witness in the trial of the murder case was found guilty under Sec. 193 of the Penal Code and has been sentenced to four years jail for perjury over her false testimony in Court. The alleged statement was said to be in contradiction with a statement she gave to the police.
The existence of these penal sanctions allows 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 Sec. 199 and Sec. 200 of the Penal Code must be punished to send shivers down their spine as to prevent further deliberate offences from being committed. – Sept 20, 2021
This article is jointly written by Datuk Chang Kim Loong, the honorary secretary general of the National House Buyers Association (HBA) and Jo Ee, Chang, Bachelor of Law (Hons) University of Essex.
The views expressed are solely of the author and do not necessarily reflect those of Focus Malaysia.
