Lai Chee Min v Wong Choy Mee (BA-12B-43-06/2025)

LAI CHEE MIN (No. K/P: 581205-10-6609)

PHOONG SIEW MAE (No. K/P: 600819-10-6946) … APPELLANTS AND WONG CHOY MEE (No. K/P: 770818-08-6906) … RESPONDENT GROUNDS OF JUDGMENT

This appeal arises from a full trial in the Sessions Court, Kajang, in which the Appellants sued for reliefs including a permanent injunction restraining the Respondent from operating a restaurant or other commercial activity at No. 37, Jalan Desa 3, Kg. Desa Sg. Makau (the subject premises), and damages for private nuisance. The Sessions Court dismissed the claim and awarded costs to the Respondent.

Based on the facts and Appeal records, the First Appellant is the owner of a residential house situated at No. 32, Jalan Desa 3, Kg. Desa Sg. Makau, Jalan Sg. Makau, 43100 Hulu Langat, Selangor (“Lot No. 32"). The second Appellant is the owner of a residential property at No. 60, Jalan Desa 4, Kg. Desa Sg. Makau, 43100 Hulu Langat, Selangor (“Lot 60”). The Respondent is an individual residing at No. 37, Jalan Desa 3, Kg. Desa Sg. Makau, Jalan Sg. Makau, 43100 Hulu Langat, Selangor (“the Respondent’s Lot”), and operates a restaurant as a home-based business. All the above lots are situated within one village area known as Kampung Desa Sungai Makau, Jalan Sungai Makau, 43100 Hulu Langat, Selangor (“the Said Village”).

The Appellants, being retirees and elderly persons, claim that they have resided in their respective premises for nearly a decade, since October 2020. The Respondent has been operating a restaurant serving food within the Respondent’s Lot, in the said residential area which has caused severe disturbance, nuisance and/or inconvenience to the Appellants and their family members as stated below: -

Air pollution due to oily and foul-smelling fumes from the Restaurant flow/spread/escape operation which premises;

(ii) Noise pollution due to the clatter of the Restaurant operations, including the cooking preparation works carried out early in the morning and throughout the day (6.30AM until 4.00PM daily,) and the chattering of staffs, servants and/or agents of the Respondent

(iii) Unsafe road situation, obstruction of access, and traffic congestion at the vicinity due to motor vehicles belonging to many customers, staffs, servants and/or agents of the Respondent parked in a disorganised manner in close proximity of the Appellants premises.

The Appellants lodged several complaints to the Majlis Perbandaran Kajang,(MPKJ) stating that the Respondent’s Restaurant was operating illegally in a designated residential area. Hence the MPKJ issued several compounds, notices and warnings against the Respondent as well as, conducted multiple seizures at the Illegal Restaurant. Regardless of the local municipal’s legal actions, the Respondent remained obstinate, continuing to threaten, harass and provoke the Appellants and their families by continuing to still operate illegally.

Having exhausted all other avenues to resolve the nuisance, the Appellants commenced a Civil Suit No.: BH-A53-1-01/2023 in the Kajang Sessions Court on 18.01.2023. The trial was conducted over a period of four (4) days, and 5 witnesses were called representing the Appellants and in contrast, the Respondent testified on her own behalf, as the sole witness. After a full trial, the Sessions Court dismissed the Appellant’s claim and awarded costs to the Respondent.

The principal issues before this court for determination on this appeal are as follows:

whether the Appellants had locus standi to sue namely, whether they were in possession of or entitled to the quiet enjoyment of Lots 32 and 60; and

whether on the balance of probabilities the Respondent’s activities at the subject premises constituted a private nuisance having regard to smoke/odour, noise and traffic/parking disruption.

The fundamental right of ordinary homeowners to a quiet enjoyment of their properties, and the unlawful continuation of conduct despite regulatory actions and persistent complaints. THE LAW AND RELEVANT FACTUAL BACKGROUND. Standard of appellate review

This appellate court is under a duty to intervene only when the trial judge’s conclusions are unsupported by the evidence, arising from a misdirection in law, or are otherwise plainly wrong. A plainly wrong decision happens when the trial court is guilty of no or insufficient judicial appreciation of evidence. Tan Sow Mooi v Rainbow Paradise Beach Resort Berhad & Anor [2025] 5 MLRH 470 LOCUS STANDI NAMELY THE POSSESSION AND ENTITLEMENT

After reviewing the grounds of judgement by the sessions court judge, she concluded that the Appellants failed to prove exclusive possessory rights because no title, lease or formal documentary title was ever produced during the trial. Conversely, this court concludes that this reasoning cannot stand. In my opinion, proof of possession may be established by credible and cogent evidence other than formal title documents, namely, de facto possession or exclusive occupation be sufficient where it’s demonstrated on the balance of probabilities. Referring to the case of Hunter v Canary Wharf Ltd [1997] 2 All ER 426, by the Court of Appeal in Chin Moy Yen v Chai Weng Sing [2019] MLJU 681.

Considering the evidence before me, the Appellants had proved their possession over Lots 32 and 60 through the following:

Oral testimonies of five (5) witnesses;

Their NRIC addresses corresponding to the said premises;

Contemporaneous photographs and video recordings;

Contemporaneous written complaints;

Most significantly, under cross-examination that Lot 32 is occupied by the 1 Appellant and Lot 60 by the 2nd Appellant.

It was clear that, the Appellants personally testified when cross‑examined and produced contemporaneous documents such as complaints, police reports, photographs and videos, all of which correspond to the addresses at which they live and to the times and events complained thereof. Subsequently, the Respondent in cross‑examination accepted that Lot 32 lies in front of her premises and Lot 60 to the rear and accepted seeing the Appellants at their respective residences adjacent in the manner described. (pages 237and 246 of the Notes of Proceedings)

In the absence of any contrary evidence, the Appellants’ testimony and supporting documents, do establish that they were in occupation of the respective lots and entitled to bring an action for infringement of their enjoyment of those lands. The Sessions Court’s had persevered upon the production of formal title and had excluded the oral and documentary proof before it elevated, form over substance, and in due course, failed to appreciate the sufficiency of the evidence that was adduced. In my view, that was an error of fact and law which warrants for an appellate rectification. WHETHER RESPONDENT’S ACTIVITIES AT PREMISES CONSTITUTED

Private nuisance concerns an unlawful interference with a person’s use or enjoyment of land. Whether an interference is actionable is a question of degree and reasonableness judged by reference to all the surrounding circumstances of the locality, manner, duration and effect of the activity, and whether the interference exceeds what a reasonable occupier in that locality must be expected to tolerate. This court is in the opinion that the character of the locality is central. An activity which might be tolerated in a commercial district may nevertheless be a nuisance in a quiet residential neighborhood

Based on the evidence before me, the Restaurant serves a wide variety of fried and oily dishes that produce a strong smell, such as: -

Curry Wild Boar

Yellow Glutinous Rice Wine Chicken

Ginger Sesame Oil Fried Chicken

Hakka Braisaed Pork

Deep Fried Talapia

Thai Style Fried Talapia

Dry Fried Meat

Braised Pork Belly

Ginger Stew Duck

Minced Garlic Pork Lard Taufu A. Smoke and odour

The Appellants produced oral testimony describing persistent oily and foul‑smelling fumes permeating their residences, supported by contemporaneous complaints to the municipal authority together with photographs showing darkening on certain ceiling/roof surfaces. The Respondent admitted the use of frying for some dishes, acknowledged that an exhaust/chimney proximate to neighbouring houses discharged non‑oily smoke through the chimney vent, and accepted that grease/oil is trapped in filters but that some exhaust is released upward.

The Respondent’s admission that some dishes were fried and the proximity of the exhaust to neighbouring houses make it more probable that cooking emissions reached adjacent properties with resulting odour and deposition over time. (Notes of Proceeding, Pages 311- 312)

The evidence establishes recurrent and prolonged preparatory activity like cutting, chopping, washing commencing before and continuing during business hours, (six (6) days a week from 6.30 a.m. to 4.00 p.m) together with the presence of customers and associated audible conversation. Video recordings admitted in evidence and the Respondent’s own testimony that there were customers and preparation activities corroborate the Appellants’ complaints. The frequency, regularity and duration of these noises, in a quiet residential context and in daytime periods when the Appellants, many of whom are retirees, expected peaceful enjoyment, exceed the tolerable level for that locality. C. Traffic and parking disruption

Photographs and witness testimony show vehicles arriving and parking in close proximity to the Appellants’ houses on a narrow local road, causing slowdown, congestion and repeated disruption to access. The Respondent accepted that vehicles passed slowly due to congestion. This constitutes a persistent interference with access and convenience beyond normal neighbourhood activity.

On the balance of probability, this Court must consider whether a reasonable person in that residential locality would be expected to endure the levels of smoke, odour, noise and traffic? The combination of persistent oily emissions, daily and prolonged noise from food preparation, noisy customer activity, and repeated obstruction of a narrow residential road, collectively produced by the Appellant’s evidence, corroborated that the nuisance was ongoing and very extensive. D. Weight of municipal enforcement evidence

The Municipal warnings, compounds and seizures carry weight as to the nuisance and breach of local regulations to operate the Respondent’s restaurant illegally. Some weight has to be given on those facts as they are admissible and relevant evidence of unlawful use of the premises and the persistence of the complained conduct despite regulatory attempts at remediation. The Respondent’s repeated non‑compliance with municipal directions supports the conclusion that the interference was deliberate and continuing.

In the case of Tunku Norella Suriani bt Tunku Yusoff & Ors v Kumpulan Sierramas (M) Sdn Bhd & Anor the High Court accepted that nuisance by smoke and odour can be established primarily through witness testimony. The collective oral testimonies of the Appellants and their witnesses, corroborated by contemporaneous documentary evidence including photographs and video recordings, sufficiently establish that the Restaurant interferes with the Appellants enjoyment of their premises. The Learned Judge therefore erred in concluding that no nuisance was proven. Wah Shen Development Sdn Bhd v Success Portfolio Sdn Bhd [2019] 1 MLJ 546 Ong Koh Hou v Perbadanan Bandar & Anor [2009] 8 MLJ 616

The Appellants come before this Court to compel intervention, as ordinary homeowners seeking nothing more than the right to live peacefully in their own residences. I agree with the Appellants that the law of private nuisance exists to protect such rights. The Appellants have discharged their burden on the balance of probabilities.

Therefore, this Court orders as follows:

The appeal is allowed with cost of RM 8,000.00;

The Judgment and Orders of the Sessions Court dated 29 May 2025 are set aside.

A permanent injunction is granted restraining the Respondent, 14 days from today whether by herself, her family, servants, employees, agents or otherwise howsoever, from operating a restaurant, eatery or other commercial food business at No. 37, Jalan Desa 3, Kg. Desa Sg. Makau, Jalan Sg. Makau, 43100 Hulu Langat, Selangor, or from carrying on any activity thereon inconsistent with the land’s stipulated residential use.

In any event of the failure to comply with this permanent injunction order granted by this court, the Appellants can initiate Committal proceedings against the Respondents.

This case to be redirected back to a different sessions court to assesses the damages claimed on the prayers of the Statement of Claim. Dated: 6 April 2026 SGD SHOBA DORAI RAJAH JUDICIAL COMMISSIONER SHAH ALAM HIGH COURT Solicitor for the Appellants: VINCENT LIEW CHEE KEONG Tetuan Richard Wee Chambers Level 38, Menara Multi-Purpose, Capital Square, No. 8, Jalan Munshi Abdullah, 50100 Kuala Lumpur Solicitor for the Respondents: HARMESH SINGH Peguamcara Responden Tetuan Darshan Chong & Co No. 1, Jalan Perkasa 8, Taman Maluri, Cheras, 55100 Kuala Lumpur