Liew Yoke Chuan v Pentadbir Tanah Daerah Kinta (AA-25-13-10/2023)

LIEW YOKE CHUAN [NO. K/P: 661128-08-6025]

KHOO CHOONG HIANG [NO. K/P: 741202-08-6155]

LIEW WONG [NO. K/P: 660430-08-6371]

LEE YOON LOI [NO. K/P: 700527-08-5125]

CHONG KIN KHEONG [NO. K/P: 741127-08-5645]

TAN YEONG SENG [NO. K/P: 741205-08-5377]

LOW SEE YAN [NO. K/P: 770819-08-6166] …APPELANTS S/N /gonre0cqkuNyH7nORR2oQ

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PENGARAH TANAH DAN GALIAN NEGERI PERAK KERAJAAN NEGERI PERAK DARUL RIDZUAN …RESPONDENTS JUDGMENT S/N /gonre0cqkuNyH7nORR2oQ INTRODUCTION [1] This is an application by the Applicant seeking leave to commence committal proceedings against the Respondents for their failure and/or refusal to comply with Court Order dated 26.10.2023 (“Enclosure 13”). [2] All four (4) Respondents named in Enclosure 4 are office bearers and/or employees of the 2nd Respondent. BACKGROUND FACTS [3] Perbadanan Kemajuan Negeri Perak (PKNP) is the registered proprietor of the six plots of land known as PT 253451 HSD 214720, PT 253415 HSD 214684, PT 253416 HSD 214685, PT 253453 HSD 214722, PT 253451 HSD 214720, PT 253450 HSD 214719 along with a road reserve in Wilayah Kanthan, Mukim Hulu Kinta, Daerah Kinta, Perak (“the Lands”). [4] The Lands, which were previously State lands, were alienated to PKNP on 29.6.2013. [5] Prior to 24.10.2023, the Applicants had trespassed onto the Lands and carried out agricultural activities on the Lands. However, the Respondents in the Judicial Review Application claimed that they had never consented to the Applicants entering the Lands at any point in time. S/N /gonre0cqkuNyH7nORR2oQ [6] On 13.10.2023, the Land Administrator issued notices pursuant to Section 425 of the National Land Code (NLC) to the Applicants to notify them of their offence and requested for them to vacate the Lands within 7 days from the date of the Section 425 Notices, i.e. by 20.10.2023. [7] Between 24.10.2023 to 25.10.2023, PKNP has commenced works to repossess the Lands, including denying entry to all squatters from the Lands, stationing auxiliary police at the Lands, deploying excavators to remove plantation, piping, and structures on the Lands. [8] On 24.10.2023, the Applicants had filed the Judicial Review Application to seek for, inter alia, the following order:-

An order of certiorari to quash the Section 425

(ii) Declaratory and prohibitory orders to prevent the eviction of the Applicants from the Lands;

(iii) Specific performance of a letter of offer issued by PKNP to the Applicants dated 21.11.2012; and

(iv) An order to stay all actions of the Respondents in the Judicial Review Application and their agents and/or servants relating to and in furtherance of Section 425 Notices. S/N /gonre0cqkuNyH7nORR2oQ [9] On 26.10.2023, the Applicants obtained an Interim Stay Order against the Respondents in the Judicial Review Application. [10] Subsequent to the granting of the Interim Stay Order, PKNP continued to carry out works on the Lands as is consistent with its rights as the registered proprietor of the Lands. [11] The Applicants had filed this ex parte application for leave to apply for an order of committal against the Respondents for, inter alia, the alleged non-compliance of the Interim Stay Order. [12] The 2nd Respondent contended that the Applicants have failed to show a prima facie case of contempt for leave to be granted to commence committal proceeding against the Respondents for the following reasons:-

The Interim Order was not personally served on the

(ii) The Interim Stay Order was not endorsed with a penal notice pursuant to Order 45 Rule 7(4) of the Rules of Court 2012;

(iii) There exists alternative remedies available to the Applicants for the actions complained of;

(iv) The express terms of Interim Stay Order have been complied with by the Respondents;

The Interim Stay Order cannot function as an injunction against the Respondents in the Judicial S/N /gonre0cqkuNyH7nORR2oQ Review as the Respondents cannot be prevented from exercising their public duties;

(vi) The actions of the Respondents complained of were in exercise of the Respondent’s statutory duties under the Perak State Development Corporation Enactment 1967. As such, the Respondents, in their capacity as public servants, cannot be liable for the actions complained of which were done in exercise of their statutory duties; and

(vii) The Interim Stay Order is academic as all enforcement actions taken pursuant to Section 425 Notices were completed on 25.10.2023, before the Interim Stay Order was granted on 26.10.2023. PRELIMINARY ISSUE [13] Before I proceed to consider the issue of non-compliance on the part of the Respondents, I find it prudent to address the preliminary issue raised by the Respondents i.e. that the Plaintiff had failed to personally serve the Interim Stay Order on the Respondents as required under Order 45 Rules 5 and 7 of the ROC 2012 which provides that an order shall not be enforced under rule 5 unless a copy of the order had ben served personally on the person required to do or abstain from doing the act in question. [14] The relevant rules read as follows:- "Enforcement of judgment to do or abstain from doing an act (O. 45, r. 5 ) S/N /gonre0cqkuNyH7nORR2oQ

(1) Where –

a person required by a judgment or order to do an act within a time specified in the judgment or order refuses or neglects to do it within that time or, as the case may be, within that time as extended or abridged under Order 3, rule 5; or

a person disobeys a judgment or order requiring him to abstain from doing an act, then, subject to these Rules, the judgment or order may be enforced by one or more of the following means: (A) with the leave of the Court, an order of committal........." "Service of copy of judgment or order prerequisite to enforcement under rule (O. 45, r. 7 )

(1) In this rule, references to an order shall be construed as including references to a judgment.

Subject to Order 26, rule 7(3), and paragraphs (6) and (7) of this rule, an order shall not be enforced under rule 5 unless-

a copy of the order had been served personally on the person required to do or abstain from doing the act in question; and

in the case of an order requiring a person to do an act, the copy has been so served before the expiration of the time within which he was required to do the act.

Subject as aforesaid, an order requiring a body corporate to do or abstain from doing an act shall not be enforced as mentioned in rule 5 (1)(B) or

a copy of the order has also been served personally on the officer against whom an order of committal is sought; and S/N /gonre0cqkuNyH7nORR2oQ

in the case of an order requiring the body corporate to do an act, the copy has been so served before the expiration of the time within which the body was required to do the act.

(C) unless-

There shall be endorsed on the copy of an order served under this rule a notice in Form 83 informing the person on whom the copy is served

in the case of service under paragraph (2), if he neglects to obey the order within the time specified therein, or, if the order is to abstain from doing an act, that if he disobeys the order, he is liable to process of execution to compel him to obey it; and

in the case of service under paragraph (3), that if the body corporate neglects to obey the order within the time so specified or, if the order is to abstain from doing an act, that if the body corporate disobeys the order, the body corporate is liable to process of execution to compel the body to obey it.

With the copy of an order required to be served under this rule, being an order requiring a person to do an act, there shall also be served a copy of any order made under Order 3, rule 5, extending or abridging the time for doing the act and, where the first-mentioned order was made under rule 5(3) or 6 of this Order, a copy of the previous order requiring the act to be done.

An order requiring a person to abstain from doing an act may be enforced under rule 5 notwithstanding that service of a copy of the order has not been effected in accordance with this rule if the Court is satisfied that, pending such service, the person against whom or against whose property it is sought to enforce the order has had notice thereof either –

by being present when the order was made; or

by being notified of the terms of the order, whether by telephone, telegram or otherwise. S/N /gonre0cqkuNyH7nORR2oQ

Without prejudice to its power under Order 62, rule 5, the Court may dispense with service of a copy of an order under this rule if it thinks it just to do so". [15] Order 45 7(7) of the ROC states that service of a copy of an order under O. 45 can be dispensed with by the court if the court thinks it just to do so. [16] In Davvy International Ltd And Others v. Tazzyman And Others [1997] 3 All ER 183, when considering O. 45 r. 7(7) of the Rules of Supreme Court (which is in pari materia with O. 45 r. 7(7) of Rules of Court 2012 ), the court held that O. 45 r. 7(7) can be exercised to dispense with personal service of a mandatory order not only prospectively, but also retrospectively. [17] Our High Court had in the case of Madliz Azid & Ors v. Chua Yung Kim & Ors [2013] 2 CLJ 110, followed Davy International and granted dispensation of service of mandatory order which ordered the first defendant to deliver the title deeds of 98 parcels of lands to the plaintiff's solicitors within seven days of the judgment. The court found that the first defendant knew the terms of the judgment although it was not personally served on him because, inter alia (para. 14):

The plaintiff's statement of claim had claimed for the specific prayer which required him to deliver the title deeds and the first defendant knew throughout the legal proceedings that was the main order directed against him;

(ii) The first defendant was represented throughout the proceedings; S/N /gonre0cqkuNyH7nORR2oQ

(iii) The plaintiff's solicitors sent a draft copy of the judgment to the first defendant's solicitors and the first defendant's solicitors duly approved it;

(iv) The first defendant's solicitors were served with a copy of the sealed and extracted judgment; and

The first defendant knew that the judgment was obtained against him when he instructed his solicitors to apply to stay execution of the judgment and appeal against the order. [18] Whether the failure to serve Interim Stay Order was fatal or not depends on the facts and circumstances of each case and whether any prejudice was caused to the proposed contemnor as a result thereof (see the Federal Court case of Golden Star & Ors v. Ling Peek Hoe & Ors [2021] 2 MLRA 150). [19] There was no evidence to show that the Plaintiff had personally served the Interim Stay Order dated 26.10.2023. However, it was also not disputed that the Respondents were at all material time represented by solicitors and the solicitors were present at the time the Interim Stay Order was made. [20] The draft Interim Stay Order was also served upon Respondents solicitors for their review and comments wherein the Applicants’ solicitors had informed the 2nd Respondent’s solicitor to advice the PKNP officers to stop all action and/or operation in evicting the Applicants from the Lands. [21] The sealed Interim Stay Order was also served on the 2nd Respondent’s Solicitor to which the 2nd Respondent’s Solicitor had issued a reply through a letter dated 1.11.2023 stating that the Interim Stay Order S/N /gonre0cqkuNyH7nORR2oQ does not have the effect of preventing PKNP from continuing their clearing work on the Lands. [22] In the circumstances, it is thus in my considered view that the Respondents had suffered no prejudice from the Applicants’ failure to serve the Interim Stay Order as the Respondents and/or their solicitors are at all material time aware of the Interim Stay Order granted by this court against the Respondents. [23] On the issue of lack of penal notice, the applicable rules of the Court expressly allow for the Court to dispense with the requirement of a penal notice if the person knew of the terms of the order or judgment (see the case of Liew Siak Khiong v. Active Pioneer Sdn Bhd [2022] CLJU 3258; [2022] 1 LNS 3258). [24] Based on my findings above, it is clear that the Respondents and/or their solicitors have knowledge of the Interim Stay Order granted by this High Court which was not disputed by parties in the present case. MAIN ISSUE [25] For this court to grant leave to the Applicant to commence committal proceedings against the Respondents, the Court must first be satisfied that there is a prima facie case for contempt against a contemnor. [26] The principles of law pertaining to contempt of court had been set out in the Supreme Court decision of Wee Choo Keong v. MBf Holdings Bhd & Anor and Another Appeal [1993] 3 CLJ 210; [1993] 2 MLJ 222 S/N /gonre0cqkuNyH7nORR2oQ as per Abdul Hamid Omar (LP) (as he then was) at p. 212 (CLJ); p. (MLJ): “Obedience to court order It is established law that a person against whom an order of court has been issued is duty bound to obey that order until it is set aside. It is not open for him to decide for himself whether the order was wrongly issued and therefore does not require obedience. His duty is one of obedience until such time as the order may be set aside or varied. Any person who fails to obey an order of court runs the risk of being held in contempt with all its attendant consequences.” [27] It is trite law that the burden lies on the applicant to prove beyond reasonable doubt that the person sought to be committed had wilfully disobeyed the order of court. On the law of contempt, reference was also made to the leading Federal Court case of Tan Sri Dato'(Dr) Rozali Ismail & Ors v. Lim Pang Cheong & Ors [2012] 2 CLJ 849 where Arifin Zakaria CJ (as His Lordship then was) speaking for the majority had held as follows:- “[20] In dealing with the application to set aside the leave for committal proceedings, it is necessary for us to consider the law of contempt. A good starting point would be the definition of contempt of court itself. Oswald's Contempt of Court (3rd Ed), at p. S/N /gonre0cqkuNyH7nORR2oQ gives a general definition of contempt of court as follows: To speak generally, contempt of court may be said to be constituted by any conduct that tends to bring the authority and administration of the law into disrespect or disregard, or to interfere with or prejudice parties, litigants, or their witnesses during the litigation. [21] The jurisprudence for arming the court with the power to punish a contempt is best expounded by Brown J in Re H E Kingdon v. S C Goho [1947] 1 LNS 87 as follows: But the root principle on which this inherent power to punish for contempt is founded, and the purpose for which it must be exercised, is not to vindicate the dignity of the individual judge or other judicial officer of a court or even of the court itself, but to prevent an undue interference with the administration of justice in the public interest. [22] Hence, the power to punish a contempt is not derived merely from statute nor truly from common law but instead flows from the very concept of a court of law. (See Borrie & Lowe's The Law of Contempt, 3rd edn., at p. 465; and Master Jacob [1970] 23 Current Legal Problems 23). S/N /gonre0cqkuNyH7nORR2oQ [23] Article 126 of the Federal Constitution empowers the Federal Court, the Court of Appeal and the High Courts to punish any contempt of itself. This is repeated in s. 13 of the Courts of Judicature Act 1964. However since the RFC has no procedural provisions on committal , therefore, by virtue of r. 3 of the RFC, the procedure under O. 52 of the RHC may be adopted. Thus, an applicant can bring contempt proceedings viaO. of the RHC without having to go through the Criminal Procedure Code or the Penal Code even if the relief sought is imprisonment. [24] Contempt of court has traditionally been classified as being either criminal or civil. In England, the general approach has been that a criminal contempt is an act which so threatens the administration of justice that requires punishment whereas by contrast, a civil contempt involves disobedience of a court order. However, O. 52 of the RHC is inapplicable for contempt in criminal proceedings where the contempt is in the face of the court or consists of disobedience to an order of the court or a breach of an undertaking to the court (see O. 52 r. 1(2)(a)(ii) of the RHC ). One thing is clear, be it civil or criminal contempt, the standard of proof required in either type is the same, which is beyond reasonable doubt.” S/N /gonre0cqkuNyH7nORR2oQ [28] Bearing the above principles in mind and returning to the facts of the present case, I find it useful to reproduce the Interim Order for Stay granted by this court which stated as follows:- “bahawa Pemohon-Pemohon diberikan suatu perintah penggantungan interim bahawa semua tindakan-tindakan Pejabat Daerah dan Tanah Kinta Ipoh dan Perbadanan Kemajuan Negeri Perak serta agen-agen dan pengkhidmat-pengkhidmat berkaitan dengan tindakan-tindakan dan berlanjutan daripada notis-notis yang diisu di bawah seksyen 425 Kanun Tanah Negara hendaklah digantung sehingga pelupusan permohonan kebenaran Semakan Kehakiman (Lampiran 1)” [29] Section 425 of the National Land Code provides for the unlawful occupation of State land, reserved land or mining land which reads as follows:-

“Unlawful occupation, etc., of State land, reserved land or mining land

Any person who, without lawful authority-

occupies, or erects any building on, any State land, reserved land or mining land, or

clears, ploughs, digs, encloses or cultivates any such land or part thereof; or S/N /gonre0cqkuNyH7nORR2oQ

cuts or removes any timber or produce on or from such land, commits an offence and shall, on conviction, be liable to a fine not exceeding five hundred thousand ringgit or to imprisonment for a term not exceeding five years or to both.

Any person who abets the commission of an offence under subsection (1) commits an offence and shall, on conviction, be liable to a fine not exceeding five hundred thousand ringgit or to imprisonment for a term not exceeding five years or to both.

For the purpose of this section, State land shall include all land held by or on behalf of Federal or State Government or a local authority or a statutory authority exercising powers vested in it by federal or State law.” [30] A reading of the above provision clearly shows that section 425 of the NLC is not intended to be notices of eviction or vacant possession of the Lands but was to put the Applicants on notice of the criminal offence alleged against them i.e. the unlawful occupation of PKNP’s land. [31] In the Federal Court case of Sidek bn Hj Muhammad & Ors v Government of Perak [1982] 1 MLJ 313 Chief Justice Raja Azlan Shah noted that the landowners do not have an obligation to bring the matter to court for the owner to repossess their own land. The owner can even S/N /gonre0cqkuNyH7nORR2oQ resort to the use of force so long as it is reasonable to do so and he uses no more force than it is reasonably necessary. [32] As the registered proprietor of the Lands, the PKNP is allowed at law to use reasonable force to obtain possession of their own Lands. The PKNP was thus not acting in breach of the Interim Stay Order. CONCLUSION [34] For the foregoing reasons above, this court finds that the Applicants had failed to prove their charges against the Respondents beyond reasonable doubt. Accordingly, I hereby dismiss the Applicants’ Enclosure 13 application with costs in the cause Enclosure 1. Dated: 05.3.2024 -signed- (ABDUL WAHAB BIN MOHAMED) JUDGE HIGH COURT OF MALAYA IPOH, PERAK S/N /gonre0cqkuNyH7nORR2oQ Pihak-pihak Tetuan sekar & Associates bagi pihak Perayu Peguamcara dan Peguambela No. 25A, Medan Istana 3 Bandar Ipoh Raya 30000 Ipoh Perak Tel:

05.2418801 Faks: 05.2418802 Ruj: SA/JR/JR.PPK/LAND Tetuan MahWengKwai & Associates bagi pihak Responden Peguamcara dan Peguambela Level 10-1, Tower B Menara Prima Jalan PJU 1/39, Dataran Prima Selangor Ruj: M100025/RM/DP/JK/NAY S/N /gonre0cqkuNyH7nORR2oQ