The Accountancy Club: Malaysia's Most Famous Land Fraud Case

Highlight Land Fraud Saga Lingers for Thai Family
Written by Han Tong and Chua Sue-Ann of fz.com
Tuesday, 12 March 2013 16:09

KUALA LUMPUR (March 12): Two decades after suffering land fraud, the family of deceased Thai national Boonsom Boonyanit (pix) is pressing for the government to open discussion on possible resolutions.

Boonyanit's case is well-known in the legal fraternity after she lost her land in Penang when an imposter forged documents to obtain her land titles and later sold the beachfront land to Adorna Properties Sdn Bhd.

Boonyanit's grandsons, Piya and Prithep Sosothikul, told reporters here today that the family will next week write to Prime Minister Datuk Seri Najib Razak and Penang Chief Minister Lim Guan Eng for any kind of official response.

"We do not see the authorities as the enemy... Once we work with them, other people can work with them too. We are seeking friends, not enemies," Prithep said at a packed press conference.

This is the first time Boonyanit's family has stepped forward to tell their side of the story, in an appeal to the public for support towards their cause.

Piya shared an anecdote on how he was explaining the family's 23-year battle for justice to his four-year-old son.

"There are no bad guys, just the system... And people can change the system. We do not want to fight the government, we would love to work with them," Piya said.

Piya said their grandmother has fallen victim to a flawed system, where land titles can be fraudulently transferred with little legal recourse, but this system can be fixed.

The first step towards this is through open communication with the relevant authorities, Piya added.

According to Piya, the family has has several options including giving up entirely, taking legal action and - the option the Sosothikul family is choosing to pursue - determining who is accountable.

"Who has the power to make a wrong right? Who is accountable? The authorities. We are the victim," Piya said.

When asked, Piya did not specify what they are demanding from the government or what response they would be satisfied with.

"It is not a matter of satisfaction but resolution. Whatever is given to us, we will accept. We are not here to demand," Piya said.

Piya threw it back to the Malaysian public and the government to determine what form of compensation Boonyanit's family deserves having fought legal battles unsuccessfully since 1989.

However, Piya said the family hoped for an official response or acknowledgement to their letters by April 7, which marks the 24th anniversary of the family's ordeal when the Penang land was transferred without their consent.

Quoting Mahatma Gandhi, Piya said, "There is a higher court than all courts and that is the court of conscience. This supercedes all courts."

Piya however stressed that their struggle for justice must not be used for anyone's political gain.

"Justice should be provided for, not fought for. Justice is above politics," Piya said.

Background
Boonsom Boonyanit is a Thai citizen who claimed that she was the registered proprietor of two plots of land in Tanjung Bungah, Penang which she purchased in 1967.

Once day in 1989, she found out that one Boonsoom Boonyanit, with a different Thai passport number, had forged her signature to transact the land.

The imposter had sold and transferred the land to a company called Adorna Properties Sdn Bhd in May 24, 1989 for about RM 12 million.

The imposter had affirmed a statutory declaration declaring that she had lost the original titles to the land and another declaration that the names Boonsoom Boonyanit (imposter) and Boonsom Boonyanit (as per the land title) were the same persons.

Adorna Properties claimed that it had no knowledge of the alleged fraud and had no reason to suspect so.

Boonyanit sued Adorna Properties for the return of her land but lost her case at the High Court in 1995.

Boonyanit then successfully appealed at the Court of Appeal which in 1997 overturned the High Court's earlier decision.

But she ultimately lost at the Federal Court when the three-judge panel allowed Adorna Properties appeal and ruled that the company was indeed the rightful owner of the land.

The panel, led by the then Chief Justice Tun Eusoff Chin, had interpreted Section 340(3) of the National Land Code in arriving at their controversial decision on December 13, 2000.

The Federal Court decision came some seven months after Boonyanit's death, leaving her two sons to pursue legal action. However, their subsequent appeals proved unsuccessful.

The Boonyanit case subsequently became a must-read case study, subject to criticism and analysis within the legal and academic fraternity.

Crucially, the court ruling also had wide-ranging implications on property owners faced with similar fraud but left with little legal recourse.

Nevertheless, nine years later the Federal Court overturned the precedent set by the Boonyanit case in its decision on a similar case involving land in Penang.

In the Jan 21, 2010 case, five Federal Court Judges - led by the then Chief Justice Tun Zaki Azmi - corrected what it called an "obvious and blatant" error in the Boonyanit case.

The decision was hailed as a landmark as the court closed decade-long legal loophole that allowed fraudsters to hand on to land or property titles obtained through illegal means.

The 2010 judgment declared that a registered owner's claim to interest or title of a property can be later defeated if it can be shown that the title was obtained by forgery or misrepresentation.

This was regardless of whether the subsequent registered owner was party or privy to the fraud.

"We are legally obliged to set right (the matter). The error committed in Adorna Properties is so obvious and blatant. It is quite well known that some unscrupulous people have taken advantage of it to transfer land to themselves. I hope, with this decision, land authorities will be extra careful when registering transfers of land," Zaki said in delivering his supporting judgement to the Federal Court's ruling.

The judgment was part of a suit brought by Tan Yin Hong, who was the registered owner of a parcel of land in Kuantan, Pahang. Than was suing three parties: Tan Sian San, Cini Timber Industries Sdn Bhd and United Malayan Banking Corporation Bhd (now RHB Bank Bhd).

Sian San, purportedly under a power of attorney, executed two charges on the land in favour of United Malayan Banking to secure loans totalling RM 300,000 in favour of Cini Timber Industries.

But Yin Hong claimed that he did not sign any power of attorney in favour of Sian San asnd that it was forged, according to the facts of the case.

Yin Hong claimed he only knew about the forgery when he received a notice of demand of repayment of RM 111,825.95 and RM 197,244.01 for an overdraft facility and term loan facility, respectively.

In his suit, Yin Hong was asking the court to invalidate the bank charges and purported power of attorney as well as to direct the bank to return the land title to him.

He lost at the Kuantan High Court and Court of Appeal but ultimately won his appeal at the Federal Court.