Criminal Implications of Certifying a Non-Existent Retaining Wall in Malaysia

 

This is not legal advice and reflects my personal analysis. Consult a qualified attorney for legal guidance.

Certifying a non-existent retaining wall by a local authority like Kota Kinabalu City Hall (DBKK) in Malaysia could constitute a criminal offense if it involves intentional deceit, fraud, or corruption. Such actions may violate the Penal Code or amount to misconduct in public office, particularly if public servants knowingly or recklessly misrepresent facts for personal gain or to benefit others, such as developers.

Potential Criminal Offenses

Cheating: Certifying a non-existent retaining wall with intent to deceive, causing financial loss or safety risks to buyers, may constitute cheating. This requires proof of dishonest intent to induce reliance on false representations.

Fraudulent Misrepresentation: Knowingly or recklessly certifying a non-existent wall to secure an Occupation Certificate (OC) or other benefits could amount to fraudulent misrepresentation.

Forgery: Submitting a false document, such as a fraudulent Form A/RS certifying a non-existent wall, could constitute forgery if done with intent to deceive or cause harm.

Criminal Breach of Trust: If a public servant dishonestly misuses their authority to certify a non-existent wall, it may amount to a criminal breach of trust.

Misconduct in Public Office: Public servants who willfully neglect duties or act improperly for corrupt purposes (e.g., favoring a developer) may be liable.

Criminal Negligence: If the false certification leads to harm, such as property damage or safety risks due to the absence of a mandated retaining wall, it could escalate to criminal negligence if recklessness is proven.

 

Evidence of Intent

To establish criminality, I must prove intent or recklessness beyond a reasonable doubt.

Potential evidence includes:

Fraudulent Form A/RS: The alleged submission of a false Form A/RS to certify a non-existent wall suggests deliberate falsification. If DBKK officials accepted or issued this form without verification, it may indicate intent to deceive or reckless disregard for the truth.

Documentation Discrepancies: The as-built survey’s alleged manipulation of platform heights and DBKK’s approval of the 2018 plan, despite reliance on the 2007 plan, points to intentional misrepresentation or gross oversight.

Unanswered Complaints: The lack of response to over 100 emails since 2022 could imply deliberate avoidance of accountability, particularly if officials were aware of the wall’s absence but certified it to expedite the OC.

Motive or Benefit: Certifying a non-existent wall may have been motivated by pressure from the developer, financial gain, or a desire to cover up non-compliance, especially given the 1997 soil investigation mandating the wall.

 

Harm Caused

The absence of the retaining wall creates safety risks, such as potential soil collapse behind houses S1 to S18, and financial losses, including property devaluation and loss of rental income. Steep driveways exacerbate accessibility issues, strengthening the case for criminal negligence if intent or recklessness is proven.