Punctuation and Statutes¹

The English rule is that punctuation is no part of a statute and it ought to be disregarded in the construction of statutes, see Maxwell on the Interpretation of statutes, 12th Edition at page 13.

The irrelevance of punctuation has two consequences. First, a provision in a statute may be read as though the punctuation which appears on the face of the Act were omitted; secondly, where it is necessary to give a provision a particular construction which is at variance with the way in which the section is punctuated, it may be read as though those were in fact punctuation which none appears on the face of the Act, ibid at page 14.

A case in point is the Amendment to Part III of Schedule 5, Real Property Gains Tax Act 1976 in the Finance (No.2) Act 2017, which is partly substituted by the following:-

Not only is it ambiguous whether the second limb of the provision above refers to:-

‘‘an executor, of the estate of a deceased person, who is not a citizen and not a permanent resident’’ [commas inserted by us] or in the alternative

‘‘an executor of the estate of a deceased person, who is not a citizen and not a permanent resident,’’ [commas inserted by us];

in our opinion, the second limb is quite unintelligible without the ‘commas’. Nonetheless, reference to the explanatory statement in the late part of the Bill to the Act states the intention of Parliament as follows:-

‘‘14.  Clause 18 seeks to amend Part III of Schedule 5 to Act 1976 to provide for the application of tax rate under that part to an estate of a deceased who is not a citizen and not a permanent resident².’’

The Garis Panduan Cukai Keuntungan Harta Tanah which was issued specifically to clarify ‘The computation, exception and obligations of the disposer and acquirer brought about by The Akta Kewangan (No.2) 2017 [Akta 801] is non the clearer having stated the following:-

‘‘4.7. Mulai 1 Januari 2018, kadar CKHT untuk wasi bagi harta pusaka si mati yang bukan warganegara dan bukan juga pemastautin tetap adalah sama seperti kadar cukai untuk individu bukan warganegara dan bukan juga pemastautin tetap seperti berikut:

  (a)  Pelupusan dalam tempoh 5 tahun dari tarikh pemerolehan, kadar cukai adalah 30%; dan

  (b)  Pelupusan dalam tahun ke-6 selepas tarikh pemerolehan dan seterusnya, kadar cukai adalah 5%.’’

Nonetheless, it is now clear from the explanatory statements above that it is the intention of Parliament that the second limb, as aforesaid, shall refer to the estate as opposed to the executor of the estate.

1 Co-authored by Jing Ting Tan, University of Liverpool, U.K (LLB) 1st class (Honours), Bar Professional Training Course at Northumbria University (Middle Temple Inns) and Mr Henry Kang Fang Hawe, University of London (LLB), Advocates & Solicitors
2 Underline is ours