Abdul Malik Ishak J:

Historical Background To The Present Application In encl. 10

[1] This is a sequel to the first judgment which has since been reported and it has been reported in the three popular local law journals, namely:

(a) Tan Guek Tian & Anor v. Tan Kim Kiat [2007] 8 CLJ 215;

(b) Tan Guek Tian and Anor v Tan Kim Kiat @ Chua Kim Kiat [2007] 3 MLJ 521; and

(c) Tan Guek Tian (f) & Anor v Tan Kim Kiat @ Chua Kim Kiat [2007] 3 AMR 758.

[2] In the first judgment, the Mental Health Act 2001 (Act 615) (hereinafter referred to as "the said Act 615") plays a prominent role in adjudicating encl. one (1). It now transpires that the said Act 615 has not come into operation because the Minister charged with the responsibility for health has not appointed by notification in the gazette the date of the coming into operation of the said Act 615. Section 1(2) of the said Act 615 sets out the commencement date and checks with the government gazette revealed that no such commencement date had been published. Further checks with the CLJ online version of the said Act 615 revealed that it is not yet in force. There is a real risk that other legal practitioners and litigants in Malaysia would rely on the first judgment as reported in order to make similar applications like encl. one (1) pursuant to the said Act 615 bearing in mind that the said Act 615 is currently in circulation to members of the public. The continued reliance on the said Act 615 on the assumption that it is in force would cause confusion and stifle the modern development of the law relating to mental disorders.

[3] It is hoped that the Minister charged with the responsibility for health would take heed of the current unsatisfactory predicament of the said Act 615 which received the Royal Assent on 6 September 2001 but remains unenforceable to date. The printed copy of the said Act 615 by the "Percetakan Nasional Malaysia Berhad, Kuala Lumpur branch" carries the following legend: "Date of publication in the Gazette ... 27.9.2001". That only adds confusion as to whether the said Act 615 has come into force. This judgment is written to de-fuse that confusion. I reiterate that the said Act 615 is still not in force as at the date of the writing of this judgment.

[4] It is germane to mention that the said Act 615 is silent as to whether it is to apply prospectively or retrospectively. With respect, the said Act 615 ought to be reviewed and its intention specified with some measure of certainty. In the event that the said Act 615 is only intended to affect matters of procedure, it ought to apply retrospectively and if it would affect a vested right then it ought to apply prospectively. According to Zakaria Yatim J (as he then was) in Malayan Banking Bhd v. Siong Electronic Industries (1981) Sdn Bhd & Ors [1994] 3 CLJ 68:

An amending statute could not be construed retrospectively if it affected any right that existed before the amendment. A statute could not be construed retrospectively if it had the effect of making a contract valid which, as the law stood at the time it was executed, was not valid. If the amending statute had the effect of altering a substantive law or removing a substantive right, it should not be construed retrospectively.

And in Syed Ibrahim Syed Mohd & Ors v. Esso Production Malaysia Incorporated [2004] 1 CLJ 889, Mokhtar Sidin JCA, delivering the judgment of the Court of Appeal, referred to the following authorities on retrospectivity:

(a) National Land Finance Co-operative Society Ltd v. Director General of Inland Revenue [1993] 4 CLJ 339;

(b) Yew Bon Tew & Anor v. Kenderaan Bas Mara [1983] 1 CLJ 11; [1983] CLJ (Rep) 56;

(c) Lim Phin Khian v. Kho Su Ming [1996] 1 CLJ 529;

(d) Lee Chow Meng v. Public Prosecutor [1978] 2 MLJ 36;

(e) The Colonial Sugar Refining Company, Limited v. Irving [1905] AC 369; and

(f) Kerajaan Malaysia v. Wong Pot Heng & Anor [1992] 3 CLJ 1497 HC, and [1997] 2 CLJ 188 FC.

[5] "Retrospective" simply means looking backward