Cheah IT Tee v Cheah IT Tee (P-01(A)-503-08/2019)

ASAS DUNIA BERHAD (NO. SYARIKAT: 94528-T) …RESPONDEN/ RESPONDEN [Dalam Mahkamah Tinggi Malaya Di Pulau Pinang Permohonan Semakan Kehakiman No. PA-25-36-08/2017 Dalam perkara mengenai permohonan CHEAH IT TEE untuk memohon kebenaran memfailkan permohonan bagi Semakan Kehakiman di bawah Aturan 53 Kaedah 2 dan Kaedah 3 Kaedah-Kaedah Mahkamah 2012 Dalam perkara mengenai keputusan yang dibuat oleh Lembaga Rayuan 2 Negeri Pulau Pinang melalui Rayuan No. LR/SP/12/2014 Dalam perkara mengenai Akta Perancangan Bandar dan Desa 1976 Dalam perkara mengenai Aturan 53 Kaedah-Kaedah Mahkamah 2012 Antara Cheah It Tee (No. K/P: 531226-07-5543) … Pemohon Dan 1) Lembaga Rayuan Negeri Pulau Pinang 2) Majlis Perbandaran Seberang Perai 3) Asas Dunia Berhad (No. Syarikat: 94528-T) … Responden/ Responden] CORAM: DR. BADARIAH BINTI SAHAMID, JCA YEW JEN KIE, JCA NOR BEE BINTI ARIFFIN, JCA 3

This is an appeal by the Appellant against the decision of the High Court, given on 20.7.2018, in dismissing the Appellant’s application for judicial review to quash the decision of the 1st Respondent, given on 26.5.2017, in dismissing the appeal by the Appellant and 6 others against the decision of the 2nd Respondent, given on 21.2.2014, granting planning permission to the 3rd Respondent.

On 11.4.2019, we heard the appeal and we unanimously dismissed the appeal with costs.

The Appellant and six others are the co-proprietors of the land formerly known as Lot 2, Mukim 2, Seberang Perai Selatan, Pulau Pinang [“Lot 2 Mukim 2"].

The Third Respondent is desirous to develop the land known as Lots 147, 226, 230, 333 and 634, Mukim 2, Daerah Seberang Perai Selatan [“the Land"] and had accordingly submitted an application to the Second Respondent for planning permission vide MPSP/70/39-61/1 B1 ["KM Application"] to develop the Land into a housing scheme.

In the wake of the submission of the KM Application and pursuant to Section 21(6) of the Town and Country Planning Act 1976 [“TCPA”], the Second Respondent issued notices to the owners of 4 the neighbouring lands, about the KM Application and to inform such owners of their right to object to the KM Application.

The Appellant and six others “as owner of neighbouring land” lodged their objection to the KM Application.

Upon hearing all parties, the 2nd Respondent granted the planning permission, with conditions, to the 3rd Respondent as provided for in Section 22(3) of the TPCA.

Aggrieved, the Appellant and six others filed an appeal to 1st Respondent on or about 2.4.2014 vide LR/SP/12/2014 ["the Appeal"] under Section 23 of the TPCA.

The 1st Respondent dismissed the Appeal of the Appellant and six others with costs.

Dissatisfied, the Appellant filed a Judicial Review Application to quash the decision of the 1st Respondent in dismissing the Appellant’s appeal against the decision of the 2nd Respondent in granting the planning permission to the 3rd Respondent.

The High Court on 20.7.2018 dismissed the judicial review. Hence, the present appeal.

The grounds of appeal before the 1st Respondent, as stated in the Notice of Appeal, are as follows1: 1 Grounds of Jugement, CB Jilid 2 (B)-Bahagian C, pages 502-519, page506. 5 The proposed drainage through Lot 2 Mukim 2 SPS from Lot 634 and Lot 326 dated October 2014 which have been causing floods over thirty years since 1980s when unauthorized party (parties) forcibly trespassed into our Lot 2 Mukim 2 and unauthorized dug drain to join our irrigation canal that connects to the culvert under the road.

In essence, the 1st Respondent, held, inter alia, as follows:

(a) the Appellant is in no position to object to the portion of his land being used for the purpose of implementing a drainage system as that portion of the Land had been acquired by the State Government in 1999 vide Government Gazette No. 1346 22/5/99.2

(b) There was no record of flooding on the Appellant’s land. Hence, the Appellant had failed to substantiate his claim that the Proposed Development, if allowed to proceed, would aggravate the flooding problem on and around the Land, and

(c) The Appellant had not produced any expert evidence to counter that the proposed drainage system is a suitable system and that the location of the sewage plant is located at the best available site. 2 CB Jilid 2 (B)-Bahagian C: paragraph 2 at page 506, paragraph 8 at page 510 and paragraph 10 at page 514. 6 HIGH COURT DECISION

From the Appellant’s Statement (pursuant to Order 53 rule 3(2) of the Rules of Court 2012) and the Supporting Affidavits3, the grounds for judicial review can be summarized as follows:

(a) The Appellant was not given the opportunity to call an expert witness to give evidence on his behalf during the proceedings before the 1st Respondent.

(b) The Appellant, being a person with hearing disability, was not given document as promised to him at the proceedings before the 1st Respondent.

(c) The 1st Respondent took into account irrelevant factors or failed to take into account relevant factors.

(d) The 1st Respondent’s decision was a decision that no sensible person would have made in the context of the same case.

The Appellant contended that grounds (a) and (b) above showed “procedural impropriety”. Whereas ground (c) above showed “illegality” and ground (d) above showed “irrationality”.

The learned Judge, after analyzing the Appellant’s contention of “procedural impropriety” with regard to not being accorded the opportunity to call an expert witness and not being supplied with the 3 R/P Jilid 1 (Bahagian A) pag 83-86, Jilid 2(Bahagian B) pages 88-99 and 100-105 [to check] 7 notes of proceedings [“NOP”], found that the contentions were baseless.4

As regard the contention of “illegality” arising from acquisition of part of Lot 2 Mukim 2 and dismissed it, the Judge agreed that the case of United Allied Empire Sdn. Bhd. v Pengarah Tanah dan Galian Selangor & Ors5 relied on by the Appellant has no application to the present case.6

On “illegality” in relation to flooding issue, the learned Judge decided that the 1st Respondent’s findings were correct and clearly supported by the evidence of RW1, Noraini Binti Shari, from Jabatan Pengairan dan Saliran Negeri Pulau Pinang [“JPS”] and Ir. Khoo Heng Keong, the Project Engineer of the Proposed Development.7

On the sewage plant location issue, the Judge agreed that the 3rd Respondent had complied with the Indah Water Consortium Sdn. Bhd’s (“IWK”) requirement.8

The learned Judge concluded that the 1st Respondent’s decision as a whole was not tainted with “irrationality” or “unreasonableness”.9

The law on appellate intervention is well settled. The Federal Court distilled the principles governing judicial review in the case of Alam 4 CB Jilid 1 & 2, Bahagian A & B, KEPUTUSAN, paragraph 12-26, pages 28-35. 5 [2018] 1 MLJ 1. 6 CB Jilid 1 & 2, Bahagian A & B, KEPUTUSAN, paragraph 27-42, pages 36-50. 7 CB Jilid 1 & 2, Bahagian A & B, KEPUTUSAN, paragraph 44-50, pages 53-64. 8 CB Jilid 1 & 2, Bahagian A & B, KEPUTUSAN, paragraph 51-52, pages 64-65. 9 CB Jilid 1 & 2, Bahagian A & B, KEPUTUSAN, paragraph 54-61, pages 66-73. 8 Venture Sdn. Bhd. naor v Abdul Aziz bin Abdul Majid & Ors10, and held: [21] The court may intervene on the ground that the decision maker had acted on no evidence or had come to a conclusion which on evidence it could not reasonably come: Malayan Banking Bhd v Association of Bank Officers, Peninsular Malaysia & Anor [1988] 3 MLJ 204; [1988] 1 CLJ (Rep) 183; Ashbridge Investments Ltd v Minister of Housing and Local Government [1965] 1 WLR 1320. It is now settled law that the courts may review the decision of an inferior tribunal on the grounds of illegality, irrationality and possibly proportionality: R Rama Chandran v The Industrial Court of Malaysia & Anor [1997] 1 MLJ 145, thus permitting the courts to scrutise the decision not only for process but also for substance. In Petroliam Nasional Bhd v Nik Ramli Nik Hassan [2004] 2 MLJ 288 this court however clarified that not every case was amenable to judicial review pursuant to the principle in R Rama Chandran's case. It should only be invoked in appropriate cases. There may be cases in which for reasons of public policy, national interest, public safety or national security it may be wholly inappropriate for the courts to attempt any substitution of views: Kumpulan Perangsang Selangor Bhd v Zaid bin Hj Mohd Noh[1997] 1 MLJ 789. 10 [2015] 4 MLJ 270. 9 [22] A decision of an inferior tribunal is amenable to judicial review where the facts do not support the conclusion arrived at by the tribunal or the findings of the tribunal had been arrived at by taking into consideration irrelevant matters or disregarding relevant matters: Ranjit Kaur a/p S Gopal Singh v Hotel Excelsior (M) Sdn Bhd [2010] 6 MLJ 1.

Gleaning from the Memorandum of Appeal, the Appellant’s are raising the following grounds in this appeal: a. Whether the 1st Respondent is still the owner of Lot 2 Mukim 2 [Grounds 1, 2, 3 and 4 of the Memorandum of Appeal”] b. Whether the Proposed Development would cause flooding problem on the Appellant’s land [Grounds 5, 6, 11, 12 & 13 Memorandum of Appeal] c. Whether the Sewage Location is suitable [Ground 11 of Memorandum of Appeal]; d. Whether the Appellant was given opportunity to call expert witness [Grounds 9 & 10 of Memorandum of Appeal]; e. Whether the 1st Respondent failed to furnish Notes of Proceedings [“NOP”] to the Appellant [Grounds 7 & 8 of Memorandum of Appeal]. 10 Ground (a) Whether the Appellant is the owner of Lot 2 Mukim 2 Appellant’s contention

It was contended for the Appellant that the 1st Respondent failed to take into consideration the undisputed fact that the Appellant was and still is one of the registered owners of the whole undivided Lot 2 Mukim 2 based on the land search dated 4.12.2017 and the 2018 quit rent receipt which clearly showed that the Appellant is in fact still the owner of Lot 2 Mukim 2 despite the land acquisition back in 1999.

The same land search dated 4.12.2017 also showed that there is no endorsement of the memorial of the alleged acquisition.

The legal consequence of not getting the acquisition endorsed on the title deed had been addressed by this Court in the case of United Allied Empire Sdn. Bhd. v Pengarah Tanah dan Galian Selangor & Ors,11 where this Court held: [34] Reading these statutory provisions as contained in ss 23 and 66 of the LAA 1960, we were of the view that they are express directions by the legislature which compliance must be taken as being of a mandatory nature. The word ‘shall’ that was used in both sections connotes the mandatory nature of the legislative intent. As such, it was our considered view that the cumulative effect of these two sections above — quoted read with the Circular No 27/2009 has been that the endorsement of the memorial on the 11 [2018] 1 MLJ 661. 11 issue of Form K on the IDT of the acquired land is mandatory and that only upon such positive act having been done, shall the title of the said land ‘vest in the state authority as state land’. Absent that, as was recognised by the very document emanating from the Director General of Land and Mines via Circular No 27/2009, ‘Memorial atau endorsan ini adalah sangat mustahak kerana selagi ianya belum dibuat, tanah itu masih dimiliki oleh tuan punya’. [Underline added by Appellant]

Thus, contended the Appellant, based on the facts of the present case, the 1st Respondent’s finding of facts that “…this portion of land (Lot Mukim 2) now belongs to the state government and Mr Cheah is in no position to object” is erroneous and runs counter to the undisputed fact and established law. Accordingly, the 1st Respondent’s decision is tainted with illegality and hence amenable to be quashed.

It was contended that the learned Judge had misdirected herself when she found that the United Allied Empire case, supra, is irrelevant on the ground that unlike the United Allied Empire case, the present case is not a land acquisition case. The learned Judge had misdirected herself when she dispensed with the mandatory endorsement of the acquisition on the title of the land.

The learned Judge had misdirected herself in failing to appreciate Sections 23 and 66 of the Land Acquisition Act 1960 [“LAA”] in holding that Borang K is the sufficient evidence of complete acquisition and hence the Appellant had no right to object to the planning permission when in fact Lot 2 Mukim 2 is yet to vest in the State Authority. 12

Further, the learned Judge erred by blaming the Appellant for not producing the land search result and quit rent receipt for Lot 2 Mukim 2 to prove that Lot 2 Mukim 2 still is registered under the name of the Appellant, when in actual fact the burden of proof is upon the Appellant to prove that Lot 2 Mukim 2 had been acquired under the LAA as alleged. Our Decision on Ground (a)

We see no error in law in the learned Judge’s view that United Allied Empire, supra, is of no assistance to the Appellant’s contention that the Appellant is still the registered owner of undivided Lot 2 Mukim 2.

In the case of United Allied Empire, the land owner by way of judicial review sought to quash the compulsory acquisition of his 26 acres parcel of land ["the land"] for the purpose for building a mosque. It was contended that the process of acquisition was procedurally wrong and illegal for, inter alia, non-compliance with the mandatory provision of the LAA with regard Form K. The appellant submitted that the mere issuance of Form K without the required endorsement of the memorial of the acquisition on the document of title to the land under sections 23 and 66 of the LAA was insufficient to vest the land in the State Authority and therefore the land remained registered in the name of the landowner. The High Court dismissed the judicial review but on appeal to this Court, the appeal was allowed and the decision of the High Court was set aside.

The United Allied Empire case is clearly distinguishable. As noted, the central issue in the case of United Allied Empire is with regard 13 to the validity of the acquisition process of the land. Whereas the present proceeding is about the planning permission granted to the 3rd Respondent by the 2nd Respondent.

As observed by the learned Judge, in the proceeding before the 1st Respondent, the Appellant had admitted in his cross-examination that part of Lot 2 Mukim 2 had been acquired under LAA and that he had received the award of the compensation sum for the said acquisition without protest.

The evidence of RW1, Noraini Binti Shari, showed that the proposed drainage system as shown on page 84 of the Certified Plan marked “C” is in the same alignment that was going to be implemented in the present Proposed Development.13

As submitted by learned Counsel for the Third Respondent, it is undisputed that based on the Certified Plan marked “C”14, part of Lot 2 Mukim 2 [co-owned by the Appellant] and part of Lot 634 (that belonged to the Third Respondent) were acquired. Through the acquisition process, Lot 2 Mukim 2 and Lot 634 no longer exist. Lot 2 Mukim 2 has become Lot 10000 and Lot 10001 owned by the State Government of Penang, for the purpose of drainage system i.e. system perparitan.15 Whereas Lot 634 has become Lot 10002 and Lot 10003.

Based on the above observations, the learned Judge held: 12 CB Jilid 1 & 2, Bahagian A & B, “ALASAN” paragraph 37, page 43 – 46. 13 CB Jilid 1 & 2, Bahagian A & B, page 47. 14 R/P Jilid 2(B) (Bahagian C) PAGE 508. 15 CB Jilid 1 & 2, Bahagian A & B, ‘ALASAN” pages 21 – 74, paragraph 34, page 42. 14

Dalam keseluruhan keterangan di hadapan Responden Pertama, tidak dapat dinafikan bahawa cadangan sistem perparitan untuk skim perumahan tersebut adalah sepenuhya atas tanah yang telah pun diambil alih di bawah Akta Pengambilan Tanah. Jadi, apa-apa kegagalan pengendorsan Borang K (Akta Pengambilan Tanah) atas dokumen hakmilik adalah tidak relevant dan tidak penting.

Oleh yang demikian, berdasarkan keterangan yang dikemukakan di hadapan Responden Pertama ketika prosiding berjalan, Responden Pertama tidak tekhilaf apabila menyatakan seperti yang berikut: “….There was an acquisition of a portion of the land at Lot 2 Mukim 2 in 1999, vide Government Gazette No. 1346 22/5/99. The said lot is now known as Lots 10000 and Lot 10001….” [Perenggan 2 Alasan Penghakiman]. “….Firstly it must be stated that the portion of the land that was acquired is no longer the property of the Appellants as it belongs to the state government, and compensation had been paid for the said land acquisition.” [perenggan 8 Alasan Penghakiman]

We agree with the learned Judge’s decision that the finding of facts by the 1st Respondent is based on the evidence before him and that 15 the 1st Respondent had not taken into consideration any irrelevant factors. Accordingly, the Appellant’s contention of illegality must fail. Ground (b): Whether the Proposed Development would cause flooding problem on the Appellant’s land. and Ground (c): Whether the Sewage Location is suitable

These two grounds are considered together as they are interrelated.

It was contended for the Appellant that it is undisputed that the Appellant being the registered owner of Lot 2 Mukim 2 is a party who is most familiar with the historical record of the flood of his own land i.e. Lot 2 Mukim 2. Notwithstanding, the High Court rejected in toto the Appellant’s testimony on the issue of flooding on Lot 2 Mukim 2 on the ground of the Appellant’s failure to call any witness to support his case.

The Appellant also contended that the 1st Respondent’s finding of fact is flawed in that it had mistakenly accepted Puan Noraini’s evidence that Mukim 2 is in Kampung Tasek Chempedak and not in Pekan Tasek as contended by the Appellant. In so holding, the 1st Respondent failed to take into account the Gazette Notification No. 33 of 21.1.1954 which set out the village boundary limit for Pekan Tasek, and the land Lot 2 Mukim 2 obviously falls within the village boundary limit of Pekan Tasek. 16

On this issue, the learned Judge referred to the decision of the 1st Respondent on the similar issue raised by the Appellant before the 1st Respondent, where it was held:

9.(i) I will first deal with the issue Mr. Cheah has raised that floods had occurred on the Lot 2, Mukim 2, in the past 30 years. During the course of the hearing he did not produce any evidence except for what he had averred that there was flooding on his land during the past 30 years.

Based on the above observation, the learned Judge held as follows:16: “46. Dari Alasan-Alasan Penghakiman, Responden Pertama ini jelas beliau telah mempertimbangkan keterangan-keterangan dari Pemohon dan juga Responden Kedua dan Ketiga. Responden Pertama, saya dapati telah tidak mempertimbangkan faktor-faktor yang tidak relevan.

Eksibit CIT-5 yang kononnya menunjukkan bahawa Lot 2 tersebut berada dalam Kawasan Taman Pekan Tasek. Sebenarnya, eksibit CIT-5 langsung tidak membuktikan perkara tersebut. Berkaitan eksibit CIT-5 itu, Mahkamah telah mengambil kira perkara-perkara berikut:

(i) Pemohon hendaklah memanggil saksi yang relevan untuk menerangkan dakwaan beliau mengenai Warta bagi kawasan-kawasan yang mengalami banjir; 16 CB Jilid 1 & 2, Bahagian A & B, Paragraph 46, page 54. 18

(v) perihal Tasek Village merujuk kepada Mukim 1 dan Mukim 2 manakala Lot 2 tersebut adalah di Mukim 2; dan;

The Learned Judge was mindful that the 1st Respondent had taken into account the evidence of Ir. Khoo Heng Keong, the Project Engineer of the Proposed Development as well as the conditions imposed by 2nd respondent, where the 1st Respondent stated: “11. (i) The panel is of the view that the most important issue here is whether the proposed drainage system that is to be implemented will cause floods in that area or that the drainage system that is to be implemented will improve the drainage in that area and prevent floods from occurring. 19

(i) Mr. Cheah had also contended that the calculations in Exhibit “B2” are wrong;

(v) Mr. Khoo went on further to state that the implementation of the retention pond is a double precautionary measure taken, to prevent the flooding in the area and will also reduce the sediments, and that there will be a slit trap implemented, as measures taken to prevent flooding in the area;

Mr. Cheah had also proposed that a straight line drainage system should be implemented, but we are informed by Puan Rosilah that it was rejected by JPS during the hearing before MPSP. 25 On the contrary, Mr. Cheah had not produced any expert evidence to prove to the panel that proposed drainage system is not a suitable drainage system that is to be implemented. The panel cannot just accept what Mr. Cheah states without the benefit of another expert to say otherwise.

For the reason above, the panel is of the view that the proposed drainage system as proposed by the KM Applicant and with the conditions imposed by the Respondent it will be sufficient to cater for the water discharged from the proposed development area and the neighbouring lots.”

On the issue of location for the sewage plant, the 1st Respondent had addressed it as follows: “15. It must be noted that the sewage plant was approved by Indah Water Consortium Sdn. Bhd. (IWK) with conditions imposed on the KM Appellant (please see letter from IWK dated 29.1.2013).

16.

(i) Mr. Cheah has suggested that the sewage plant be relocated to Lot 634, as he claimed that the quality of the air and water will be hazardous to the public in the event of a leakage as there are food and beverage stalls located nearby. 26

The Appellant submitted that the 1st Respondent’s decision was unreasonable and irrational as the 1st Respondent had failed to consider the fact that the Appellant is a professional engineer and to attach weight on the Appellant’s evidence.

We do not agree that the 1st Respondent’s decision to reject the Appellant’s evidence on the flooding and the location for the sewage plant is irrational bearing in mind that the Appellant gave evidence as a party to the appeal and not as an expert. Further, the Appellant with his training in the discipline of mechanical engineer is in no position to give expert opinion in respect of irrigation and drainage matter which falls within the sphere of civil engineering. 27 Accordingly, the 1st Respondent had rightly rejected the evidence of the Appellant and accepted the evidence of RW1 from JPS and Ir. Cheah Heng Kiong. Accordingly, the Appellant’s contention that the High Court’s decision is irrational holds no water.

Based on the above evidence before the 1st Respondent, the learned Judge found - correctly, in our view –that the decision of the 1st Respondent to be proper and correct, and it is based on the clear and cogent evidence.

Accordingly, the Appellant’s contention on illegality and irrationality is without merit. Ground (d) Denial of calling of expert witness and Ground (e) Non-suppy of Notes of Proceedings

As these two grounds are interrelated, they are considered together.

The Appellant submitted that the 1st Respondent’s decision suffered from procedural impropriety in denying the Appellant’s right to be heard in calling his expert witness.

It was submitted that the right to be heard has been given statutory assurance under both Sections 23 and 36(10)(a) of the TCPA. 28

Further, the case Beemer Sdn. Bhd. v Majlis Bandaraya Petaling Jaya [HC]17 held that “…the right to be heard must be real and actual in terms of its process though the means may take many forms…”

However, submitted the Appellant, the 1st Respondent dismissed the Appellant’s appeal for failing to produce any expert evidence to substantiate his claim that the proposed drainage system is not a suitable drainage to be implemented.

It was submitted that throughout the appeal before the 1st Respondent, the Appellant had made numerous requests for a mutually suitable date to be fixed so that the Appellant’s expert witness, Mr Cheung Hon Man, could attend before the 1st Respondent to give evidence in relation to the unsuitability of the location of the proposed drainage system and sewage plant. However, those requests were refused by the 1st Respondent. The refusal tantamount to denying the Appellant the opportunity to be heard and to prove him claim

It was further submitted that the Appellant is a professional engineer with hearing impairment and he was not legally represented at the hearing before the Second Respondent nor before the 1st Respondent. Whereas the Second Respondent and the Third Respondent were both represented by a lawyer and State Legal Officers at the hearing before the 1st Respondent.

It was submitted that despite an early oral promise and subsequent email reminders to the 1st Respondent, the 1st Respondent never 17 [2011] 1 lNS 857. 29 supplied the NOP to the Appellant to enable the Appellant to prepare his written submission. The non-supply of the NOP is akin to restricting the Appellant’s ability to present his case; it is in breach of procedural fairness and renders it amenable to judicial review.

On these two issues, the learned Judge, after considering the notes of proceeding of the appeal before the 1st Respondent, held: “17)Berdasarkan kepada Nota-Nota Prosiding, kes di hadapan Responden Pertama ini adalah pertama kalinya ditetapkan untuk bicara pada 30.6.2015 dan seterusnya tarikh-tarikh untuk sambung bicara ditetapkan pada 7.9.2015, 4.11.2015, 12.1.2016, 5.2.2016, 11.3.2016,

27.5.2016, 21.7.2016, 22.7.2016, 9.8.2016, 22.9.2016,

4.11.2016, 16.12.2016 dan 13.4.2017. Tarikh keputusan ditetapkan pada 26.5.2017. 18)Daripada Nota-Nota Prosiding adalah didapati bahawa Pemohon telah diberikan peluang untuk memanggil saksi pakar beliau tetapi beliau gagal berbuat demikian. Responden Pertama pada tarikh sambung bicara pada 12.2.2016 ketika Pemohon disoal balas oleh peguam bagi Responden Ketiga, keterangan-keterangan berikut telah diberikan oleh Pemohon: “Q: Do you agree 2013 you have not put forward any expert report, that the proposed development in anyway causes flooding? Yes, I agree 30 (muka surat 32 “Eksibit RAM-1) …. Mr Cheah you do not have with you any expert report to state, these measures are not adequate? No. I do not have an expert report. Are you calling any expert to give evidence? I am not sure yet (Muka surat 34 “Eksibit RAM-1”) …… Mr Cheah, at this stage, you do have any expert report to say the plans so far submitted and approved by MPSP, is inadequate to deal with the flooding issue? Yes there is no written expert report” (Muka surat 37 “Eksibit RAM-1) 19) Selanjutnya, daripada Nota Prosiding, ketika sambung bicara pada 11.3.2016, Pemohon tidak pernah memohon untuk menetapkan sambung bicara pada akhir bulan Mac 2016 untuk membolehkan saksi pakar beliau untuk memberi keterangan. 20) Ketika sambung bicara pada 27.5.2016, 21.7.2016,

22.7.2016 dan 9.8.2016, Pemohon tidak pernah memohon ataupun memanggil saksi pakar beliau untuk memberi keterangan. 21) Seterusnya, ketika sambung bicara pada 22.9.2016, ketika Pemohon disoal oleh Responden Pertama sama ada Pemohon akan memanggil saksi pakar, Pemohon gagal menyatakan bahawa beliau akan memanggil saksi pakar beliau. 31 22) Antara nota-nota prosiding pada 22.9.2016 adalah seperti berikut: “Chairman: Are you going to call any evidence from an expert or otherwise, to substantiate what you have said. Mr. Cheah: We have stakeholders owners, they may well want to call evidence. Chairman: Mr Cheah knows, that the hearing of this matter has gone for sometime. The issue of the stakeholder owners has been informed (by) panel on a few occasions, but till date there has not been any effort by the appellant, to call his or her expert witnesses. Further this issue also was raised, when the KM applicant engineer had take the stand. Mr. Cheah: We are not prepared for any witnesses today, so I would request for another date. Mr. Thayalan: I will object strenuously if this matter is adjourned. Puan Rosnada: Saya juga membantah sebarang ditangguhkan. Mr. Cheah: I will take a legal point from that Mr. Cheah: We did inform panel that we will call a profession witness in March or April, but the dates were not suitable. I recall it was on the 5.2.2016. Chairman: Adjournment is not allowed, as parties have decided to close their case. Chairman: Parties to file in submission by 4.11.2016, simultaneously and if any reply by the 18.11.2016. Matter fixed for mention on 4.11.2016, 9.00 am” 23) Berdasarkan kepada tarikh-tarikh prosiding yang dinyatakan Mahkamah dapati Pemohon telah diberikan banyak dan cukup peluang dan masa untuk memanggil 32 saksi pakar beliau tetapi Pemohon telah gagal untuk memanggil saksi pakar beliau. Malah ketika ditanya oleh Responden Pertama sama ada Pemohon akan memanggil saksi pakar beliau sebelum kes ditutup pada 22.9.2016, Pemohon masih gagal untuk memanggil saksi pakarnya dan sebaliknya telah menjawab “We have stakeholders owners, they may well want to call evidence”. 24) Oleh yang demikian, pernyataan Pemohon bahawa beliau mempunyai saksi pakar bernama Encik Cheung Hon Man adalah satu pemikiran semula (after-thought) dan ini menunjukkan bahawa tindakan Pemohon pada asasnya tidak datang ke Mahkamah ini dengan tangan yang bersih. 25)Berkenaan pernyataan Pemohon bahawa “Responden Pertama telah bersetuju menulis surat keterangan kepada pihak perayu oleh sebab kekurangan pendengaran wakil pihak perayu”. Nota Prosiding bertarikh 16.12.2016 langsung tidak menunjukkan kewujudan pernyataan ini. Kesahihan Nota Prosiding Responden Pertama adalah tidak dipertikaikan oleh Pemohon. Oleh yang demikian, hujahan Pemohon berkenaan perkara ini adalah satu pemikiran semula dan ini menunjukkan bahawa tindakan Pemohon pada dasarnya datang ke Mahkamah tidak dengan tangan yang bersih. 26)Jadi, Mahkamah ini mendapati tidak terdapat apa-apa cacatnya atas procedural impropriety atas alasan yang Pemohon tidak diberi peluang untuk memanggil saksi pakar 33 beliau dan tiada dokumen-dokumen yang dijanjikan oleh Responden diberikan kepada Pemohon. 27)Isu seterusnya sama ada keputusan Responden Pertama adalah cacat atas alasan illegality kerana Responden Pertama telah mempertimbangkan faktor-faktor yang tidak relevan atau gagal mempertimbangkan faktor-faktor yang relevan.

The appeal records show the proceedings before the 1st Respondent went on for close to two years. During this period the Appellant had been given the fullest opportunity to call expert witnesses if he had the intention to do so. The notes of proceeding show that notwithstanding that the Second Respondent and Third Respondent being the “Respondents” at the appeal before the 1st Respondent, the 2nd and 3rd Respondent gave evidence first and only subsequently did the Appellant start his case.18 The fact that the Appellant did not start the case until after the 2nd Respondent and the 3rd Respondent means that the Appellant would have ample opportunity to get his witnesses before he started his case before the 1st Respondent. It is the Appellant’s own lookout for dragging his feet to get his witnesses ready for the hearing despite ample opportunity being given for him to do so. The non-calling of expert witness by the Appellant was not due to deprivation of opportunity as alleged but rather it was caused by the Appellant sleeping on his own right. 18 Proceedings on 30.6.2015 R e/p JS 2(B) (Bahagian C) pages 438 onwards. 34

In respect of the Appellant’s hearing impairment, it is significant to note that the Appellant never informed the 1st Respondent at the start of the hearing of his hearing impairment and that he requested for the NOP. It would appear that the Appellant’s hearing impairment had not impeded him in the conduct of the case by himself. The following pages from the Rekod Rayuan Jilid 2(b) show the Appellant actively conducted the hearing before the 1st Respondent, namely: a. At page 443, the Appellant gave his evidence in chief. b. At page 445, the Appellant conducted cross-examination of Ir. Khoo. c. Page 479, the appellant cross-examined the Respondent’s witness.

At page 500 of the same Rekod Rayuan, on the last day of the hearing on 22.9.16, the 1st Respondent gave direction for submission, the Appellant did not request for the NOP. When the case came up on 4.1.2016 for case management, the Appellant asked for time for submission and did not request for NOP. His email requesting for the NOP was after the case management. The entire notes of proceedings vividly show that the Appellant did not once ask for NOP. Accordingly, the contention that the non-giving of the Notes of Proceeding has prejudiced the Appellant holds no water.

Upon perusal of the judgment of the learned Judge, we find there is no error in law or in fact in the decision of the High Court. The 35 learned Judge had correctly found that there was clear evidential basis for all the 1st Respondent’s findings.

Accordingly, we unanimously dismissed the appeal with cost. Dated: 30 September 2019 Signed YEW JEN KIE (delivering judgment of the court) Court of Appeal Judge Putrajaya For Appellant : 1. Khaw Veon Szu [VEON SZU & KOK THYE] For Respondents 1. YB Tuan Norazmi bin Mohd Narawi, Naizatul Zima Binti Tajudin, Charanjit Singh a/l Mahinder Singh (R1), [PEJABAT PENASIHAT UNDANG-UNDANG NEGERI PULAU PINANG]

Kanesh Sundrum (R2)

M. Thayalan (R3) Notice: This copy of the court’s reasons for judgment is subject to editorial revision.