High Court provides guidance on “substantial question of law” in SOCSO Act
13 January 2020
The High Court in Patrick Ho Chang v Pertubuhan Keselamatan Sosial [2020] 1 CLJ 284 provided guidance on the phrase ‘substantial question of law’ in section 91(2) of the Employees’ Social Security Act 1969 (‘Act’).
Section 91(1) of the Act, inter alia, states that no appeal shall lie to the High Court from an order of the appellate boards established under the Act save as provided in section 91(2), which states that–
“An appeal shall lie to the High Court from an order of an appellate board set up under this Act if it involves a substantial question of law.”
One of the questions that arose in this case was whether the appellant who was dissatisfied with a decision of the Appellate Medical Board (‘AMB’) established under the Employees’ Social Security (General) Regulations 1971 could appeal to the High Court under sections 91(1) and 91(2) of the Act.
The learned judge, Wong Kian Kheong J held that a person who is dissatisfied with a decision of the AMB can appeal to the High Court under sections 91(1) and 91(2) of the Act only if the appeal involves a ‘substantial question of law’.
The Court first considered the reported Malaysian cases which considered the meaning of the phrase ‘substantial question of law’ in section 91(2) of the Act. After making an observation that the Malaysian High Court decisions on this issue are conflicting, His Lordship summarised the decisions in these cases.
- Ketua Pengarah Pertubuhan Keselamatan Sosial v Jusoh Abu Bakar [2003] 1 CLJ 383
This case concerned regulation 17(1) (‘Regulation 17(1)’) of the Employees’ Social Security (Social Security Appellate Board Procedure) Regulations 1976 which provides that there shall be no appeal to the High Court from an order of the Board unless the order involves a ‘substantial question of law’.
learned judge, Nik Hashim J (as he then was), agreed with the appellant’s contention that the decision involves a substantial question of law as it concerns the interpretation of certain sections of the Act and their application to the facts of this case.
- Ketua Pengarah Pertubuhan Keselamatan Sosial v Tham Tian Siong [2008] 8 CLJ 341
Hamid Sultan JC (as he then was) observed that, as a general rule, it is sufficient for the appellant when challenging the decision of a tribunal to satisfy the court that the tribunal has dealt with the wrong questions or has taken into account irrelevant considerations or has misconstrued the terms of any relevant statute, or has misapplied or misstated a principle of the general law (Syarikat Kenderaan Melayu Kelantan Bhd v Transport Workers’ Union [1995] 2 MLJ 317). However, the learned judge added that Regulation 17(1) places a higher burden on the appellant in that he must satisfy the court at the commencement of the proceedings that it involves a substantial question of law to justify the hearing of the appeal.
- Ketua Pengarah Pertubuhan Keselamatan Sosial v Vadivelan Sandara Saigara [2008] 9 CLJ 428
VT Singam J held that the appeal in this case, which concerned the interpretation of a particular section of the Act, must involve a substantive question of law. His Lordship clarified that an appeal that is purely on a question of fact cannot be brought to the High Court. His Lordship added that where a question involves mixed law and facts, the court cannot decide the appeal in the abstract alone on the question of law and may have to consider the facts in order to decide the substantive question of law.
His Lordship rejected the appeal on the ground that the appellant’s contention that there were contradictions between statements made by the insured is to be regarded as one of fact and not a substantial question of law.
- Wong Yew Loy v Ketua Pengarah Pertubuhan Keselamatan Sosial [2010] 5 CLJ 467
Lau Bee Lan J (as she then was) rejected the respondent’s contention that the three questions of law raised in the appellant’s memorandum of appeal (i.e. that the Social Security Appellate Board had erred in law by applying a strict interpretation to the phrase ‘place of residence or stay’ under the Act and had failed to take into consideration that the accident was a commuting incident under the Act and that the appellant had not deviated during his travel from his residence to his workplace) did not raise any question of law to be determined. According to the learned judge, those issues involved a substantial question of law to warrant this appeal to the High Court under section 91 of the Act even though it was inevitable that the Court would have to consider the facts.
Justice K.K. Wong then referred to the Indian case of Rimmalapudi Subba Rao v Noony Veeraju AIR 1951 Mad 969 where the Full Bench of the Madras High Court had to consider the meaning of the phrase ‘substantial question of law’ in the context of Article 133(1) of the Indian Constitution which permits an appeal in civil proceedings to be made to the Supreme Court of India only if certain conditions are satisfied, one of which is that the case must involve a substantial question of law of general importance.
The learned judge accepted the interpretation of the phrase ‘substantial question of law’ in Rimmalapudi Subba Rao and stated that there can be an appeal against a decision of the AMB to the High Court under sections 91(1) and 91(2) of the Act if appellant can satisfy the High Court that the appeal involves a ‘substantial question of law’ as follows –
- an important question of law is involved;
- a difficult question of law arises in the appeal;
- if the question of law involved is neither important nor difficult, the question is nevertheless a substantial question of law if the question is arguable in the sense that –
- there is room for reasonable doubt on the question; or
- there is a difference of opinion on the question;
- when a particular set of facts can lead to alternative findings of law, a substantial question of law is involved;
- where a legal principle or rule to be applied in a case is not well established, there arises a substantial question of law; or
- if the appeal concerns –
- conflicting decisions of the High Court; or
- conflicting judgments of the Court of Appeal,
on a question of law and there is no judgment of the Federal Court on the question, there is a substantial question of law involved in the appeal.
His Lordship added that the above examples of a ‘substantial question of law’ are not exhaustive.
The Court added that, premised on Rimmalapudi Subba Rao, an appeal does not involve a ‘substantial question of law’ if the question of law –
- only affects the rights of the parties;
- has been decided by our highest court; or
- can be decided by reference to well-settled general principles of law.
Justice K.K. Wong added that the appellant bears the burden to satisfy the Court that the appeal concerns a ‘substantial question of law’ in accordance with section 91(2) of the Act.
The High Court dismissed the appellant’s application on various grounds, including its finding that the application does not involve a ‘substantial question of law’ as required by section 91(2) of the Act as the cause papers did not raise any question of law, let alone a ‘substantial question of law’, and the appellant had not discharged the onus to satisfy the Court that the application involves a ‘substantial question of law’.
Comment
This decision of the High Court provides helpful guidance to a party seeking to appeal against the decision of an appellate board under the Act as to the circumstances (albeit non-exhaustive) in which the ‘substantial question of law’ requirement in section 91(2) of the Act may be satisfied to justify the hearing of its appeal by the High Court. It also enumerates several circumstances where the ‘substantial question of law’ requirement under section 91(2) may not be satisfied.
The respondent in this case was represented by Diba Natalia Ishak, a Senior Associate of Skrine.