1. Ng Choon Keith v 1. Tiew Yek Keong (22NCVC-559-10/2016)

LAW WEE YIN ... PLAINTIFFS

TEE CHAI CHIN … DEFENDANTS BEFORE Y.A. TUAN GUNALAN A/L MUNIANDY JUDGE, HIGH COURT GROUNDS OF JUDGMENT Page 2 of 27 [1] This is a claim by the Plaintiffs against the Defendants, their next door neighbours for trespass arising out of an altercation between the 1st Plaintiff (PW2) and the 1st Defendant (‘DW2’) over some renovation work carried out by the former at his own premises. The reliefs sought are injunctive orders and an order for a common privacy wall to be erected between both premises.

That the Plaintiffs and the Defendants are neighbours where the Plaintiffs’ and the Defendants’ bungalows are located adjacent to each other.

That DW2 has stated that PW2 does not have to replace the cracked window glass at his home and DW2 will not demand the cost of repairing the crack of the window glass against the Plaintiffs as DW2 will change it himself at his own cost since the cost of repair is not high.

DW2 has stated that the Defendants have no objections for the Plaintiffs to build an 8 feet privacy fence on the Plaintiffs’ house Page 3 of 27 compound at the Plaintiffs’ own cost if allowed under the Deed of Mutual Covenant. Background of Claim Plaintiffs’ case

The Plaintiffs and Defendants live adjacent to each other where the Plaintiffs are the owners and occupants of a bungalow at No. 12A, Jalan Setia Nusantara U13/22D, Setia Eco Park, Section U13, 40170 Shah Alam, Selangor Darul Ehsan (hereinafter referred to as ‘the Plaintiffs’ home’) while the Defendants are owners and occupants of a bungalow at No. 16 on the same lane.

On 24.8.2016, when the First Plaintiff (‘PW2’) returned to the Plaintiffs’ home, the First Defendant (‘DW2’) entered their compound uninvited and said in a loud and abusive manner by behaving like a ‘thug’ that he was unhappy with the Plaintiffs’ on-going home renovation works at that point in time.

DW2 then while at the car porch proceeded to make noise, abuse and insult PW2. PW2 in response requested DW2 to leave the Page 4 of 27 Plaintiffs’ compound but DW2 continued to remain in the compound and cursed PW2 using lewd and abusive words. DW2 also invited PW2 to wrestle with him and had threatened that DW2 had a group of thugs and could hire them to hit the Plaintiffs.

Following the incident, PW2 lodged a police report on 25.8.2016 at Section 6 of the Police Station, Shah Alam District against DW2. The Plaintiffs also have a CCTV recording of that incident.

As a result of the above police report, Sarjan Azami bin Shaari (RF 92790) (‘PW5’) from Balai Polis Seksyen 6, Daerah Shah Alam summoned PW2 and DW2 to appear at the police station at separate times to take their statements. So in 25.8.2016, PW2 met PW5 at about 12.30 pm and left the station at about 2.30 pm while DW2 was called to meet up with PW5 after that. During the interrogation, PW5 also informed PW2 that he has instructed Sarjan Ramli (‘PW4’) to visit the Plaintiffs’ premises to further investigate the matter since PW2 emphasized to PW5 that PW2 was concerned about his family’s safety.

In the evening, at about 5.40 pm, DW2 passed by the Plaintiffs’ house in his car as how he usually does after his work in order to get Page 5 of 27 to his house, but this time around he honked, wound down the passenger side window of his car and showed an obscene hand gesture (middle finger) at PW2 while smiling when PW2 was standing in front of his main door engaged on his mobile phone. After that DW2 accelerated his car and went into his house. This incident was witnessed by two of PW2’s workers carrying out the renovation work at the car porch and one of them was one Mr. Tan Chee Keong (PW9).

Following the second incident, for the purpose of safety of his family and himself, PW2 made another police report on 26.8.2016 and PW2 also sent a complaint against DW2 by letter dated 30.8.2016 to the Manager and/or Housing Management council member of Precinct

3.

Two days after the meet up with PW5 at the police station. PW4 dropped by the premises but PW2 was not at home at that time neither was DW2. PW2’s worker, Mr. Hafiz was there so he informed PW2 that PW4 dropped by to inspect the renovation work.

Besides these incidents, there were several other incidents where DW2 had been cursing the Plaintiffs with obscene and vulgar words Page 6 of 27 and trying to provoke and/or instigate PW2 for a quarrel and fight whenever the Plaintiffs with their one year old child were at their home compound. Hence, for the safety of the family, PW2 lodged a police report on 5.9.2016.

Subsequently, on 7.9.2016, as a result of a police reports made by PW2, he met with Inspector S. Thevakumaran a/l Samugan Nadan (‘PW6’) at the Shah Alam Police Headquaters for interrogation and to solve the problem.

When asked by PW6 as to why DW2 was not satisfied with PW2, DW2 had answered that the renovation work at the Plaintiffs’ home had caused a window glass at DW2’s house to crack but DW2 had never informed PW2 before about the crack on the window glass. Nevertheless, PW2 promised to PW6 to repair the window glass provided the crack was caused by the renovation work at the Plaintiffs’ home.

After the meet up with PW6 at the police station on 6.9.2016, PW2 called up his worker, Lim Chi Chang (‘PW11’) instructing him to get in touch with DW2 to rectify the cracked glass upon inspecting it. PW2 gave PW11 DW2’s mobile number. PW11 called DW2 right Page 7 of 27 after that and asked him when was he free for PW11 to come over to his house to inspect the cracked glass to which DW2 replied that he was not available on that day and he asked PW11 to call him back the following day which was the 7.9.2016, Wednesday. On the following day (7.9.2016) at around 2.56 pm PW11 called up DW2 again to ask him what time was he free for PW11 to come over to his place. DW2 told PW11 that there was no need for PW11 to come over to his house as he will change the cracked glass by himself at his own cost.

PW2 also instructed his contractor named Lim Chin Soon (‘PW10’) to inspect the crack on DW2’s window glass. From the inspection conducted, it was learned the crack on the window glass was caused by the window frame which has sliden downwards causing some pressure on the window whenever the sliding door is used that may have resulted the glass to crack.

Following this, PW2 lodged another police report on 7.9.2016 to indicate that PW2 had no relation to DW2’s allegations that the renovation work at the Plaintiffs’ home caused a window glass at DW2’s home to crack. Page 8 of 27

Besides, due to the failure to accept and endure the disruption and nuisance caused by DW2 in the residential area on 13.9.2016, PW2 supported by another 6 homeowners’ from the entire 9 homeowners (including the First Plaintiff) in the residential area have submitted a Petition dated 7.9.2016 to the housing management division bearing the address at Ecopark Nusantara Homeowners Bhd.

The petition (P5) is proof that DW2 is an irresponsible neighbour and indeed is a nuisance not only to the Plaintiffs but also to other residents in the residential area. As a result of the petition, Mr. Nash Pillai (‘PW8’) from the Management contacted PW2 for PW2 to attend for a meeting with the Council’s members pertaining to the Petition dated 7.9.2016. So on 1.10.2016, PW2 attended a meeting at Ecopark Nusantara Homeowner Berhad’s office where Mr. Tiong Khe Hock being the Chairman of the Council and other council members, namely Mr. Harcharan Singh, Mr. Khoo Nee Lay (PW3) and PW8 (Ex Estate Manager) were present for the meeting. The Council members told PW2 that they had a meeting with DW2 to brief him on the Petition against DW2 but the Plaintiffs are certain that there was no further Page 9 of 27 action taken by the Management besides calling DW2 for a meeting with the Council.

The Plaintiffs state that although several police reports have been made by PW2 against DW2 and the police have also on several times advised the Defendants on the matter but the Defendants’ actions are unbecoming of a neighbour in an upmarket gated neighbourhood which is designed as a property without boundaries or surrounding walls meant to be for the quiet and undisturbed living. The Plaintiffs could not stop the Defendants’ actions and are worried about their family’s safety. The Plaintiffs do not want any unwanted things to take place, especially where the Plaintiffs live, where there is no gate or fence to deter both the Defendants from entering into the Plaintiffs’ house. Therefore, the Plaintiffs have filed this legal suit in Court. Summary of Defendant’s Case Page 10 of 27

The Plaintiffs and Defendants are neighbours in the development known as Setia Eco Park.

The Plaintiffs had commenced renovation works on their house by extending their 1st floor.

After the Plaintiffs had commenced work, the Defendants discovered that one of their window panes facing the Plaintiffs’ house had cracked.

PW2 and DW2 had a discussion at the Plaintiffs’ car porch during which they discussed how the Plaintiffs could continue their renovation in a safe manner.

The Plaintiffs refused to admit that their renovation works caused the crack in the Defendants’ window pane.

The Defendants did not want to pursue the matter further as the cost of replacing the cracked window pane was not great.

The Defendants are puzzled as to why the Plaintiffs had commenced action against the Defendants when the Defendants and Plaintiffs no longer speak to each other after the meeting at the Plaintiffs’ car porch. Page 11 of 27 The Law Applicable [2] Section 50 of the Specific Relied Act, 1950 (‘SRA’) confers on the Court the power to grant an injunction. It provides as follows: “50. Preventive relief how granted. Preventive relief is granted at the discretion of the court by – injunction, temporary or perpetual.” [3] American Cynamid v Ethicon Ltd [1975] AC 396 is the landmark case on the subject of injunctions wherein the House of Lords pronounced; inter alia, that: “The object of the interlocutory injunction is to protect the plaintiff against injury by violation of his right for which he could not be “adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial; but the; plaintiff’s need for such protection must be weighed against the corresponding need of the defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately Page 12 of 27 compensated under the plaintiffs undertaking in damages if the uncertainty were resolved in the defendant’s favor at the trial. The court must weight one need against another and determine where the “balance of convenience” lies…” [4] In Keet Gerald Francis Noel John v Mohd Noor b. Abdullah [1995] 1 MLJ 193, the Court of Appeal dealt with the issue of the approach that the judge hearing an application for an interim injunction should take and held that the judge should consider the following questions: “(1) ask himself whether the totality of the facts presented before him disclosed a bona fide serious issue to be tried. He must refrain from making any determination on the merits of the claim or any defence to it and identify with precision the issues raised and decide whether they are serious enough to merit a trial. If he finds that no serious question is disclosed, the relief should be refused. If, however, he finds that there are serious questions to be tried, he should move on to the next step of his inquiry;

having found that an issue has been disclosed that requires further investigation, he must consider where the Page 13 of 27 justice of the case lies. He must take into account all relevant matters, including the practical realities of the case before him and weigh the harm the injunction would produce by its grant, against the harm that would result from its refusal; and

the judge must have in the forefront of his mind that the remedy that he is asked to administer is discretionary, intended to produce a just result for the period between the date of the application and the trial proper and to maintain the status quo. It is a judicial discretion capable of correction on appeal. A judge should briefly set out in his judgment the several factors that weighed in his mind when arriving at his conclusion.” [5] Reference can also usefully be made to Halsbury’s Laws of England, vol. 34 at paragraph 385 wherein it is stated that an injunction will not be granted if: “(a) the injury caused by the nuisance is trivial or not serious, is one which is capable of being estimated in money and can Page 14 of 27 be adequately compensated by a small money payment, and

the case is one which it would be oppressive to the defendant to grant an injunction.” [6] Further, in paragraph 386 and 389 in the same volume it is stated: “… an injunction will be granted to restrain the continuance of a nuisance where the injury done by it is substantial, or where, however slight the damage may be, the nuisance is a continuing or recurring one, so that it would give rise to a series of actions if no injunction were granted, or where the defendant claims the right to continue the conduct complained of, or threatens to do so. The conduct of the defendant may be a material factor in deciding whether the violation of a right should be remedied by damages or prevented by an injunction. Where an injunction is sought, it is not sufficient merely to allege that the proposed act of the defendant will have an illegal result as against the plaintiff, without putting before the court sufficient material to enable it to judge of that question for itself. Where some degree of present nuisance exists, the court will take into Page 15 of 27 account its probable continuance and increase, and its presence existence raises a presumption of its continuance.” [7] S. 54, SRA spells out the instances where injunction should be refused. Relevant to the instant case and the peculiar facts herein is S. 54(g). It provides that: “54 Injunction when refused An injunction cannot be granted-

….

to prevent, on the ground of nuisance, an act of which it is not reasonably clear that it will be a nuisance.”

Whether on 24.8.2016, the First Defendant (‘DW2’) had entered into the Plaintiffs’ home compound (at the car porch), made noise, abused and insulted the First Plaintiff (‘PW2’)? Page 16 of 27

Whether DW2 drove his car at a speed, stopped in front of the Plaintiffs’ house, made obscene signals with his hand (middle finger) towards PW2 and laughed sonically at PW2 and then sped off his car from there?

Whether DW2 had slandered the Plaintiffs’ with obscene and vulgar words in the Hokkien language and attempted to provide and/or instigate PW2 to quarrel and get into a fight (to punch)?;

Whether on 24.8.2016, PW2 had invited DW2 into the Plaintiffs’ car porch to discuss the Plaintiffs’ house renovation work that was going on?

Whether PW2 had used obscene, abusive and vulgar words in the Hokkien Language at any time and provoked and/or instigated DW2 to quarrel and fight? and

Whether the Deed of Mutual Covenants signed by the Plaintiffs authorizes an 8-foot privacy fence to be built between the Plaintiffs’ and the Defendants’ house? Finding Page 17 of 27 [8] First and foremost, the burden of proof rests with the Plaintiffs (‘P1 and P2’) to prove their case as pleaded on a balance of probabilities. [9] In gist, the Plaintiffs’ case in relation to the injunction order was that on the day in question DW2 had unlawfully entered into their car porch within their compound without invitation and proceeded to cause a commotion, abuse and insult PW2. Subsequently, DW2 was alleged to have slandered the Plaintiffs using obscene and vulgar words in the Hokkein language as well as attempted to provoke and/or instigate PW2 to get into a fight and quarrel with him. The Plaintiffs relied on video recordings of the incidents on a couple of occasions which allegedly showed the actions and conduct of DW2 that warranted a restraining order being made against the Defendants (‘D1 and D2’). [10] Apart from that, the Plaintiffs also relied on the evidence of the Investigating Officer (PW6) who acted on the police report lodged by PW2 against DW2. PW6, a subpoena witness, testified that during the meet up that he arranged with PW2 and DW2 at the Shah Alam District Police HQ, (IPD) Shah Alam in the presence of one Sgt. Azami (PW5). DW2 admitted that he went into the compound of PW2’s house just to mess around with PW2 because the Plaintiffs initiated the renovation work at the premises Page 18 of 27 without his consent. Additionally, during the same meeting, DW2 was alleged to have misbehaved wherein he raised his voice and threatened DW2, which earned DW2 a reprimand for PW6 that he should not speak to PW2 in this aggressive manner but should, instead, control his anger. While this reaction by DW2 could be objectionable and the threat, if true, unlawful, this too could not by itself be regarded as a continuing nuisance or harassment that would require on injunction being granted. Suffice to say that DW5’s evidence at the most could only go to show that DW2 may have made the statement but, on grounds of hearsay, cannot amount to proof that DW2 in fact intended to ‘mess around’ with PD2 whatever that means. As to DW2 having acted in an aggressive and threatening manner, no documentary or contemporaneous record of this incident was produced by PW6. There was only an oral recollection by PW6 of an incident that had occurred several years ago. [11] There is no onus placed on the Defendants to adduce any evidence in their defence of the claim unless sufficient evidence has been adduced by P1 and P2 to prove the essential particulars of their claim. Mere allegations, however serious, particularly against D1 in this case, would not suffice to discharge the burden unless they are supported by the necessary material evidence implicating D1 as to the words and acts complained of. Page 19 of 27 [12] To begin with the issue of law raised by the Defendants, an action for injunction in civil litigation is governed by the Specific Relief Act (‘SRA’). Hence, the criteria and conditions therein must be satisfied by the Applicant before the Court can exercise its discretionary powers conferred by the SRA to grant the injunction. Inter alia, the existence of a cause of action must be shown by the pleadings before the relief of injunction can be granted. A permanent injunction by itself is not a cause of action. [13] In the instant case, a perusal of the Amended Statement of Claim (‘ASOC’) would disclose that no cause of action has been pleaded against D1 and D2. This action is, presumably, based on several tortious acts committed by D1 such as trespass to land, assault, etc. However, the Plaintiff have not identified and pleaded what are the torts alleged to have been committed to found the relief of injunction under the SRA. If this contention is right, it would appear that this action based on the pleadings should fail in its entirety as the omission goes into substance for contravention of the express provisions of the SRA and is not merely a technical or procedural non-compliance that could be considered a mere irregularity. [14] If the merits and the evidence in support of the claim may, nevertheless, be considered, I would first proceed to deal with the case Page 20 of 27 against D2. Suffice to say that there was hardly any evidence brought to prove the case against her, leaving only allegations that remained unproven. PW1 himself admitted that D2 was brought as a Defendant in this action merely because she was the wife of a gangster, i.e., D1. This is definitely not a valid basis to bring an action in tort against D2 and seek a series of injunctions against her as well. In the result, I found the pleaded claim against D2 to be baseless. [15] As for the case against D1, the allegations made via the SOC and the evidence of PW1 are serious and criminal in nature. However, despite police reports having been made against D1, no criminal action or prosecution had been instituted against him, presumably due to lack of sufficient evidence, which was also apparent in this case. In order to make out a case against D1, PW1 gave evidence of 3 separate incidents, of which only the evidence relating to the 1st incident only of some value and worthy of consideration. As regards the 2nd incident where D1 was alleged to have shown a lewd sign and the 3rd incident where he was alleged to have provoked PW2 to a fight, there was hardly any credible and sufficient evidence but instead, the evidence was contradictory and partly also hearsay. PW2 version of the alleged events was not supported by any other evidence. Page 21 of 27 [16] In regard to the 1st incident, it was in essence an alleged trespass to land and disturbance. However, a few important facts have to be noted and considered. First, D1 was a neighbour to PW1 and they were well acquainted with each other. D1 appears to have entered PW1’s compound for a discussion and without any objections from PW1. It was followed by a quarrel between them resulting in D1 being asked to leave. D1 then willingly left and did not remain on PW1’s premises. Second, D1 retreated and left after the altercation barely 5 seconds later. Hence, if there was any trespass at all onto PW1’s car porch, it was for that very brief duration only. It did not constitute continuous harassment or interference which is required under S. 54(g) of the SRA for an injunction to be granted by reference to the express prohibition therein. A one-off incident as relied upon would certainly not suffice for this purpose. [17] With respect to the other injunctions prayed for, it is plain that the Plaintiffs have not established the factual basis for the same from the totality of the evidence. The acts complained of for which the injunctions are sought have not been shown to exist nor that they are of a continuous nature that require the reliefs to stop the alleged disturbance, harassment or slander. From the Plaintiffs’ own evidence, the incidents which formed the crux of this Page 22 of 27 action were indisputably isolated and could not be categorized as a continuous nuisance to the Plaintiffs. [18] As this claim is wholly for the relief of injunctions, the legal requirements for permanent injunctions pursuant to the provisions of the SRA and case law must be adhered to. Isolated acts or words, even if criminal in nature and however objectionable, will not suffice to grant this relief. Apprehension of damage, harm or injury must be imminent for the Court to grant protection to the Plaintiffs, which the evidence taken as a whole failed to disclose. Where it is not clear whether an act is a nuisance, which was clearly the case in this instance, the Court cannot grant an injunction under the SRA. [19] On this issue, the Defendants contended that there clearly insufficient evidence proving an apprehension of imminent danger to the Plaintiffs and cited in support Lubbey Sdn. Bhd. v Chong Wooi Leong & Anor [1994] 3 AMR 42 at p. 2207 where it was held: “The defendants must prove that their apprehension of damage are imminent as the court will not grant a quia timet action by legitimizing the defendants’ action in excluding the plaintiff from its own land” Page 23 of 27 [20] On the present facts and based on the overall evidence, the Defendants were right in contending that the Plaintiffs had hardly proven any imminent damage or danger to themselves or their children from the alleged actions, words and threats by the Defendants, particularly DW2. Hardly any evidence was led to justify the injunction that they prayed for that the Defendants be ordered to be not less than 50 mts away from their house, office or public area wherever they and their families were present. Bearing in mind the width of the Plaintiffs’ house which was no more than 150 feet, the effect of the order would be to exclude the Defendants from being in their own home. As cautioned by the Defendants through counsel, it would tantamount to evicting the registered owner from occupying his own land contrary to the provisions of the National Land Code. It also reflected an overreaction on the part of the Plaintiffs to the alleged provocation by DW2, which should have rightly been resolved by the management and the authorities (police). [21] It is also settled law that before any injunction can be granted, the Plaintiffs bear the onus of showing that their claim raises a serious issue to be tried. In this case, the totality of the Plaintiffs’ evidence amounted to no more than mere exchange of heated words between PD2 and DW2. Even if Page 24 of 27 proven to be true, it could hardly amount to serious issues to be tried to justify an injunction being granted. [22] As regards the order seeking to build a party wall between the two houses of the parties, the Defendants placed on record, including in their Defence, that they had no objections to the wall being built provided it is on Plaintiffs’ own land and at the latter’s own costs. Throughout the trial, P1 and P2 did not raise any issue on this position taken by the Defendants. Hence, in my view, as the building of the wall did not concern the Defendants, it was baseless and superfluous to ask for an order in the present action against the Defendants. Moreover, as the prayer is for a mandatory injunction, it is at the discretion of the Court wherein the necessary parties must be brought into the action before the Court grant the order for. [23] The Defendants referred to the Deed of Mutual Covenants (‘DMC’ – Ex. P4) executed between Intermont Holdings Sdn. Bhd. (‘Intermont’) and the Vendors. The Plaintiffs’ own witness (‘PW8’) confirmed that the purchaser or house owner must apply for permission from one Ecopark Management, the company managing the housing development where the two houses were situated for permission to build the wall and notably, PW8 was unaware of the Plaintiffs having at any time made such an application. Page 25 of 27 Also, that clause 13 of the DMC contains a special provision for the erection of fences between properties wherein the consent of the Management is required. [24] As Intermont being a private limited company is a separate legal entity from the Plaintiffs and are not asking for the wall to be built by the inhabitants, the Plaintiffs have not shown that they have the necessary locus standi to apply for the said order in the absence of any board or directors’ resolution for Intermont to sanction the application. [25] Secondly, neither Eco-Setia nor Intermont was brought as a party to this suit and noting that consent is required from the Developer and the Management for the construction of the wall along the boundary of the 2 units, I concur with the contention of the Defendants that this prayer must fail in its entirety as a fundamental requirement for the granting of the discretionary relief of mandatory injunction has not been fulfilled. [26] In the circumstances, I declined to make the order as per prayer 22(h). [27] For the foregoing reasons, I find that this claim has not been proved and should be dismissed with costs. Page 26 of 27 Dated : 26 February 2018 (GUNALAN A/L MUNIANDY) Judge High Court of Malaya Shah Alam COUNSEL: For the Plaintiffs : Dato’ Seri Dr. N. Krishna Moorthy together with Miss Satvnder Kaur Bakhsis Singh Messrs Fauzi Ngah & Neasa Kuala Lumpur For the Defendants : Mr. Winston Wong Tat Fay Page 27 of 27 Messrs T F Wong & Tee Klang, Selangor