Keruntum Sdn Bhd v The Director of Forest 2. The Minister of Resources Planning 3. The Government of the State of Sarawak (01(f)-22-10/2014(Q))

1 IN THE FEDERAL COURT OF MALAYSIA (APPELLATE JURISDICTION) CIVIL APPEAL NO. 01(f)-22-10//2014(Q) BETWEEN KERUNTUM SDN BHD … APPLICANT AND

1. THE DIRECTOR OF FOREST

2. THE MINISTER OF RESOURCES PLANNING

3. THE GOVERNMENT OF THE STATE OF SARAWAK … RESPONDENTS Coram: Zulkefli bin Ahmad Makinudin, PCA Azahar bin Mohamed, FCJ Zaharah binti Ibrahim, FCJ Balia Yusof bin Haji Wahi, FCJ Prasad Sandosham Abraham, FCJ JUDGMENT OF THE COURT

1. The Applicant herein filed a motion (pursuant to Rule 137 of the Rules of the Federal Court 1995) vide enclosure 30(a) to review the decision of a different panel of this Court sitting on 15.3.2017 dismissing the Applicant’s appeal with costs. Learned counsel for the Applicant 2 advanced the following grounds in support of its application: “That there was a coram failure as the Federal Court panel was not duly constituted. At the material time there was no member of the panel who is a judge of Borneo and therefore with Borneo experience. In light of the aforesaid, the Appellant’s position is that there was a violation of Article 128 of the Federal Constitution, read together with para 26(4) of the Report of the Inter-Governmental Committee 1962.”

2. The background facts leading to this application are as follows: The Applicant brought a suit against the Respondents to recover damages for the revocation of two timber licences issued by the 2nd Respondent to the Applicant. The Applicant’s claim against the Respondents was both in contract and in the tort of misfeasance of public office.

3. At the High Court, after a full trial, the learned trial judge dismissed the Applicant’s claim with costs. The Applicant then appealed to the Court of Appeal. The appeal was heard and was dismissed on 4.3.2014. This Court granted leave to the Applicant on 14.8.2014 on the following questions of law, namely: a) Whether, in a civil case, a trial judge is entitled to make a finding of balance of probabilities against a plaintiff in favour of a defendant who never gave evidence or who has declined to give evidence in his own defence. b) Whether the elements of the tort of misfeasance in public office 3 as laid down by House of Lords in Three Rivers District Council v Bank of England (No3) [2000] 2 WLR 1220 should be applied by the courts of Malaysia. c) Whether the mental element of the tort of misfeasance as set out in Three Rivers District Council v Bank of England (No3) [2000] 2 WLR 1220 is sufficiently made out by the execution of a public act for a collateral purpose. d) Whether the act of revocation of a licence has continuing effect for the purpose of the law of limitation having regard to the decisions in Mak Koon Yong v Municipal Councilors, Malacca [1967] 1 MLJ 256 and Ronald Beadle v Hamzah HM Saman [2007] 2 MLJ 201. e) Whether the defence of limitation under the Public Authorities Protection Act 1948 is available to an action in the tort of misfeasance in public office having regard to the decision of the House of Lords in Three Rivers District Council v Bank of England (No3) [2000] 2 WLR 1220 and that of the English Court of Appeal in G Scammell and Nephew Ltd v Hurley & Ors [1929] 1 KB 419.

4. This Court on 15 March 2017 delivered its judgment dismissing the Applicant’s appeal. His Lordship Hasan Lah, FCJ, in delivering the judgment of the Court answered the questions of law posed in the following manner: 4 “[80] We find it unnecessary to answer the first question of law posed in this appeal because on the facts of this case there was no duty on the defendants to give evidence in their defence. [81] As regards the second question, it is clear from the submission of the parties that the principles of law enumerated in Three Rivers District Council have been accepted and applied by the Malaysian courts. See the case of Dato’ Pahlawan Ramli bin Yusuff v Tan Sri Abdul Gani bin Patail & Ors [2015] 7 MLJ 763; [2014] 9 CLJ 489, Riga Sdn Bhd v Awang Sepian Haji Awang Joini & 3 Ors [2005] MLJU 668; [2005] 1 LNS 251, Ng Kim Moi (P) & Ors v Pentadbir Tanah Daerah, Seremban, Negeri Sembilan Darul Khusus (Negeri Sembilan Township Sdn Bhd & Anor, proposed intervenors) [2004] 3 MLJ 301. [82] Under the circumstances we find it unnecessary to answer the second question. [83] As regards the third question posed in this appeal, we also find it unnecessary to answer it as it has not been proved that the revocation of the plaintiff’s licence was done for a collateral purpose. To answer a legal question not related to the facts of the case would be an academic exercise (see Blue Valley Plantation Bhd v Periasamy a/l Kuppannan & Ors [2011] 5 MLJ 521; [2011] 5 CLJ 481). [84] We will now deal with the fourth question of law. On the issue of limitation, the relevant provision is s 2(a) of the PAPA and it, inter alia, provides that any suit against any person for any act done in pursuance or execution or intended execution of any written law or of any public duty or authority shall not lie or be instituted unless it is commenced within 36 months next after the act, or in the case of a continuance of injury or damage, within 36 months next after the ceasing thereof. [86] We agree with the finding of the learned trial judge on this issue and we do not find any merit in the plaintiff’s argument on this issue. For the reasons given we answer the fourth question of law in the negative. [87] We find it unnecessary to answer the fifth question as the plaintiff failed to prove the tort of misfeasance in public office against the defendants”. Submissions of the Applicant

5. Learned counsel for the Applicant submitted that there was a coram failure when the Applicant’s appeal was heard before this Court. The 5 Applicant is a company incorporated in Sarawak. It is a subject of Bornean territory. It filed the present suit in the High Court at Kuching. It is contended for the Applicant that, reading Article 128 of the Federal Constitution read together with paragraph 26(4) of the Report of the Inter-Governmental Committee 1962 [“IGC Report”], it is clear that a Bornean dispute before the Federal Court must be decided by a panel which includes at least one judge with Bornean judicial experience. Paragraph 26(4) of the IGC Report reads as follows: “(4) The domicile of the supreme Court should be in Kuala Lumpur. Normally at least one of the Judges of the supreme Court should be a Judge with Bornean judicial experience when the Court is hearing a case arising in a Borneo State; and it should normally sit in a Borneo State to hear appeals in cases arising in that State.”

6. It is the Applicant’s case that the phrase “with Bornean judicial experience” must mean having Bornean judicial experience at the time of the sitting. His Lordship Justice Hasan Lah, FCJ, who sat and wrote the Judgment of this Court on appeal was not with Bornean judicial experience. It was impressed upon us that it is permissible for the Court to refer to a constitutional document such as the IGC Report in interpreting the constitution. [See Public Prosecutor v. Azmi bin Sharom (2015) 6 MLJ 751].

7. Learned counsel for the Applicant also submitted that the Constitution is not to be construed in any narrow and pedantic sense. [See James v. Commonwealth of Australia (1936) AC 578]. It must 6 be read as a whole to give effect, as far as possible, to all its provisions. [See Dato’ Seri Ir. Hj. Mohammad Nizar bin Jamaluddin v. Dato’ Seri Dr. Zambry bin Abdul Kadir (Attorney General, intervener) (2010) 2 MLJ 285]. It is imperative to observe that the Constitution confers additional protections for the Bornean states.

8. Learned counsel for the Applicant further submitted that the Applicant has a fundamental right on a proper construction of Article 5(1) read with Article 8(1) of the Federal Constitution to have its case heard by this Court comprising at least one member who has Bornean judicial experience. Such fundamental right is conferred by the IGC Report. The IGC Report is of constitutional importance and there would not be a Malaysia without it.

9. It is the Applicant’s case there has been a violation not only of the basic structure of the Constitution but also Article 5(1) of the Constitution. The Applicant was deprived of a constitutional right guaranteed under Article 5(1) of the Constitution to have a duly constituted panel under the Constitution. [See Gan Boon Aun v. Public Prosecutor (2016) 4 MLJ 265].

10. Learned counsel for the Applicant argued that it is important to note that paragraph 26(4) of the IGC Report uses the phrase “normally”. The present case is a normal case. Therefore, the convention ought to have been observed having regard to the federal structure.

11. Learned counsel also submitted the fact that no objection was taken or that the issue was not raised in earlier proceedings is irrelevant as 7 there can be no estoppel or waiver against a constitutional violation. [See Olga Tellis v. Bombay Municipal Corporation (1985) 3 SCC 545]. Decision

12. The sole ground for this Application by the Applicant was a coram failure of the Bench of the Federal Court that sat and decided the case on Appeal from the decision of the Court of Appeal.

13. As to when “Coram failure” occurs had been explained by the Federal Court in the cases of Gurbachan Singh Bagawin Singh & Anor v. Vellasamy Pennusamy & Ors. [2012] 2 CLJ 663 and Raja Petra Raja Kamarudin v. Menteri Dalam Negeri [2010] 4 CLJ 25. It was held based on the decision of these two cases a coram failure occurs when the number of Judges hearing a case before the Federal Court should at any time fall below the number specified under section 74 of the Court of Judicature Act 1964 [“CJA”]. Section 74 of the CJA provides as follows: “74(1) Subject as hereinafter provided, every proceeding in the Federal Court shall be heard and disposed of by three Judges or such greater uneven number of Judges as the Chief Justice may in any particular case determine.

(2) In the absence of the Chief Justice, the most senior member of the Court shall preside.” 8

14. Learned counsel for the Respondent submitted, on this issue of coram failure, there was no allegation by the Applicant that at any time during the proceedings before the Court hearing the appeal then, that the panel had less than the number of judges specified by section 74 of the CJA. As such there was no coram failure. On this point we agree with the submission of the Respondent since there was no coram failure, the allegation of injustice and procedural unfairness were clearly unsustainable. We take the view that to review the Judgment given by the panel of the Federal Court which heard and decided on this case on its merits would in fact cause injustice to the Respondents as the Applicant through their own fault had not raised its objection on this issue before the said panel of the Federal Court. Such an issue on the composition and competency of the members of the Bench of the Federal Court should have been taken up by the Applicant as the Appellant as a matter of procedure at the outset of the hearing of the case and not after the case has come to a final conclusion.

15. For the Applicant, it was argued that there has been a violation of Article 128 of the Federal Constitution read together with paragraph 26(4) of the IGC Report when there was no member of the panel that heard and decided the present case, of a Judge with Borneo judicial experience. With respect, it is our considered view that Article 128 deals specifically with the jurisdiction of the Federal Court but not its constitution or composition. [See sections 81 and 82 of the CJA]. The Federal Court when dealing with the Applicant’s appeal then was exercising its appellate jurisdiction. Therefore the reliance on Article 128 of the Federal Constitution by the Applicant is totally misplaced when the 9 complaint is on an alleged “quorum failure” of the said Federal Court Appeal Panel.

16. It is to be noted that it is Article 122 of the Federal Constitution which provides for the constitution of the Federal Court. This Article does not expressly provide that amongst the Judges of the Federal Court, there must be one with Bornean judicial experience. A reference was made to the provision of section 19 of the Malaysia Act 1963 and Article 123 of the Federal Constitution on the qualification for appointment of a Judge of the Federal Court. Neither of these two provisions stipulates that the qualification for appointment of a Judge of the Federal Court having Bornean judicial experience is either required or preferred.

17. The composition of the Federal Court at any given time is determined by the Chief Justice. It is also to be noted that subsequent to the IGC Report, and the coming into force of the Court Judicature Act 1964 throughout Malaysia with effect from 16.3.1964 s.74 remained unamended. It is our considered view reading section 74 of the CJA together with Article 122 of the Federal Constitution, clearly does not impose a legal requirement that the Federal Court, when hearing or disposing of cases, must consist of at least one Judge with Bornean judicial experience.

18. On the applicability of paragraph 24 of the IGC Report relied on by the Applicant and the use of the word “normally” in the said Report, we are of the view that it did not intend to impose any mandatory 10 requirement regarding both the composition of the Court or where it sits when hearing a case arising from a Borneo State. With respect, we do not agree with the contention of the Applicant that because the present case is a normal case, therefore the convention ought to have been observed having regard to the federal structure of our Federal Constitution.

19. It is to be noted that the recommendation in paragraph 26(4) of the IGC Report was never implemented under Article VIII of the Malaysia Agreement 1963 which provides as follows: “The Governments of the Federation of Malaya, North Borneo and Sarawak will take such legislative, executive or other action as may be required to implement the assurances, undertakings and recommendations contained in Chapter 3 of, and Annexes A and B to the Report of the Inter-Governmental Committee signed on 27 February, 1963, in so far as they are not implemented by express provisions of the constitution of Malaysia.”

20. The said recommendation in paragraph 26(4) was never implemented by an express provision in the Federal Constitution nor by any legislative, executive or other action by the Government of the Federation of Malaya, North Borneo (Sabah) and Sarawak. We are in agreement with the submission of learned counsel for the Respondent that Article VIII of the Malaysia Agreement did not mandate the Judiciary to take action to implement the said recommendation and the recommendation in paragraph 26(4) of the IGC Report cannot be 11 enforced by the Courts whether by a decision made in this Application or by way of rules made pursuant to sections 16 and 17 of the CJA.

21. It is our judgment that since the said recommendation of the IGC Report has not and was never implemented under Article VIII of the Malaysia Agreement, the Applicant cannot therefore claim any legal right to have a “Judge with Bornean experience” in the appeal panel when its appeal was heard and decided by the Federal Court.

22. It is noted that the expression “Bornean judicial experience” was not defined nor explained in the IGC Report. The Applicant might have contended that this expression means “a Judge of Borneo” or that “a Judge of Borneo” is a person who is from the Borneo States by reason of having been born or resident there. On this point we do not think that a Judge “with Bornean judicial experience” in the context of the IGC Report is a person “of Borneo” by reason of his birth and residence in the Borneo States. This is because the term “Borneo judicial experience” puts emphasis on “judicial experience” and not on the “origin” of the Judge.

23. We are of the view the term “judicial experience” must in its plain and ordinary meaning mean that a Judge who has the experience of having served as a Judge in any of the Borneo States and in his judicial capacity as a Judge has heard and disposed of cases arising from a Borneo State before any court whether Subordinate Court, High Court, Court of Appeal or the Federal Court when that particular Court sits in the State. 12

24. It is worth noting that His Lordship Hasan Lah FCJ, who wrote the Judgment of the Federal Court in the present case, had previously served in the High Court in Sarawak and had heard and decided on cases filed in the High Court in Sarawak. As for the remaining four (4) members of the five members panel of the Federal Court who sat in the present case, they too had previously sat in the Court of Appeal and Federal Court to hear and dispose of cases originating either from Sabah or Sarawak.

25. For the reasons above stated we find there is no merit in the Applicant’s application. The Application is dismissed with costs. (ZULKEFLI BIN AHMAD MAKINUDIN) President Court of Appeal Dated 7th December 2017. Counsel for the Applicant Datuk Seri Gopal Sri Ram, Colin Lau & David Yii. Solicitors for the Applicant Messrs. Michael Ong & Chang 13 Counsel for the Respondents Datuk Foong Joo Chung & Lonie Anak Pindda. Solicitors for the Respondents Jabatan Peguam Besar Negeri Sarawak.