Feng Jin Textile Sdn.Bhd v Segar A/L R.Retnam (AB-12BNCvC-3-02/2024)

Feng Jin Textile Sdn. Bhd. [No.: 201901012129(1321457-U)]

Chai Kah Wei [No. Kp.: 630707086343)

Kok Meng Trading Sdn. Bhd. [No.: 201601019096(1190033-D) …Defendan-Defendan] 04/04/2025 01:27:59 AB-12BNCvC-3-02/2024 Kand. 20 GROUNDS OF JUDGMENT INTRODUCTION [1] This case concerned an appeal that was filed by the Appellant/1st Defendant, Feng Jin Textile Sdn Bhd (D1) against the Respondent/Plaintiff in the Sessions Court, Segar a/l Retnam. The Plaintiff sued D1 and 2 others, namely, one Chai Kah Wei (D2) and Kok Meng Trading Sdn. Bhd (D3). Later, the Plaintiff withdrew the suit against D3. For ease of reference, I will refer to the parties as they were at the Sessions Court. Dissatisfied with the decision of the Sessions Court Judge (SCJ) on 31.1.2024, D1 filed the Notice of Appeal to this Court on 2.2.2024 against the whole decision of the SCJ. The Plaintiff then had crossed appeal against quantum as the SCJ did not award him damages for the continuous trespass despite finding that the Defendants were liable for trespass on his land. [2] This Court heard the appeals on 10.12.2024 and delivered its decision on 7.1.2025 where I had made the following orders: i. D1’s appeal was dismissed; ii. SCJ’s award for RM20,000.00 in general damages was upheld; iii. D1 was ordered to pay RM30,000.00 in exemplary damages to the Plaintiff; and iv. damages of RM500.00 to be paid by D1 to the Plaintiff for the continuing trespass for the period of 19.9.2022 to 19.2.2024 (date of stay on the SCJ’s decision) and RM500.00 to be paid on a daily basis commencing from 7 days after the date of this Court’s order until all the residues from the fire have been removed from the Plaintiff’s land; and v. appeal costs of RM5,000.00 to be paid by the D1 to the Plaintiff. FACTS OF THE CASE [3] The subject matter of the appeal concerned a piece of land held under No. Hakmilik 1242, Lot 1679, Tempat Kampung Dew Road, Mukim Jebong, Daerah Larut & Matang, Negeri Perak (“the land”). Plaintiff owned ½ share of the land and the other ½ share were owned by 2 persons by the name of Saravanan a/l R. Krishnan and Valliamah a/p Marimuthu. The Plaintiff averred that he was given the authority by the other 2 co-owners of the land to bring the action against the defendants. D1 was a company involved in the ‘manufacturing and trading of yarn, cotton fabric and other related products’ and having its business address at Lot 3806, Jalan Perusahaan 1, Kawasan Perindustrian Kamunting, Taiping (‘the premises”). D2 was the owner of a backhoe bearing registration number AGW 6585. D3 was a company registered in Malaysia and having its business address in Bagan Serai. It owned a lorry bearing registration number AAP 536. [4] On 13.2.2022 a fire broke out on the premises owned by D1 and pursuant thereto there were a lot of residue from the fire comprising of burning cotton waste (“cotton waste”) on the premises then. D1’s representative lodged a police report regarding the incident and therefore, there was no dispute on the date of the fire. D1 admitted that it had appointed Chai Sing Choon Excavator Works (CSCEW) to remove the cotton waste. CSCEW brought in D3’s lorry and a backhoe AGW6585 owned by D2 to carry out works to clear the premises of the cotton waste from 14.2.2022 until 19.2.2022. On 19.2.2022, Chai Sing Choon (SP4), informed D1’s representative that he could no longer carry out the clearing works. Therefore, D1 issued 2 payment vouchers for the works done by CSCEW. The on 20.2.2022, D1 appointed SNSB Recycling Sdn Bhd (SNSB) to supply industrial garbage bins for the disposal of the remaining cotton waste from the premise. The latter then issued an invoice to D1 for the works done. Apart from these facts, D1 denied the Plaintiff’s allegations, particularly that it had appointed D2 and D3 to carry out the clearing works and that it had trespassed on the Plaintiff’s land. [5] The Plaintiff went to visit the land on 19.2.2022 at 2.30 pm with his brother and saw the lorry No. AAP 536 and backhoe No. AGW 6585 on the land. The operators of the vehicles were seen to be disposing of the burning cotton waste on the land. The Plaintiff introduced himself as the owner of the land and asked them why were they trespassing on his land. Hosin Bin Lazim (SP2) who was driving the lorry and SP4 who was in charge of the backhoe claimed that they were merely following the instructions of D1’s management to dispose of the cotton waste. The Plaintiff took photographs at the scene and lodged a police report as per Simpang Report 528/22 on the same day. He also lodged a report with the Jabatan Alam Sekitar Cawangan Taiping regarding the incident. The Plaintiff contended that to-date, D1 had not removed the cotton waste from the land. It was noted that the police report lodged by the Plaintiff stated the date as 19.2.2022 but he pleaded in his Statement of Claim and Amended Statement of Claim that he went to the land on 19.9.2022. On this issue, the date in the police report lodged by the Plaintiff was the correct date that he went to the land and discovered the trespass. [6] At the trial, the Plaintiff called SP2 and SP4 to testify and also Muhammad Fikri (SP3). SP3 was SP2’s employer who had leased the lorry from D3 for 3 years and paid RM1,500.00 per month to D3. SP3 testified that he went to see a Chinese lady at the factory of D1 together with SP4 and she instructed them to dispose of the cotton waste. He was paid RM350.00 per day for 5 days by SP4 for that purpose. SP4 admitted he was the father of D2. SP4 testified that he could not identify the man who called him to dispose the waste from D1’s premises. He stopped the clearing works because the Plaintiff lodged a police report regarding the incident. SP4 admitted that was asked by D1’s representative to carry out the clearing works and alleged that SP3/SP2 pointed out to him where to dispose of the cotton waste. The method of clearing the waste from the premises was that SP4 would load the cotton waste onto the lorry and then SP2 would bring the cotton waste in the lorry and deposited them on the land, followed by SP4. After that, SP4 pushed the waste inwards on the land with the backhoe (refer to photographs in pages 330-355 of Encl. 5, RRJ2 Bahagian C). Proof of payment by D1 to SP4 were as per pages 314-315 of the same enclosure. EVALUATION AND FINDINGS OF THE COURT [7] It is trite law that an appellate court would be slow to disturb the findings of the trial court unless there have been substantial misdirection of facts or law which merited appellate intervention. The appellate court will determine whether or not the trial court arrived at its decision or finding correctly on the basis of the relevant law and the evidence adduced. It will examine the process of evaluation of the evidence by the trial court. A decision arrived at by a trial court without or insufficient judicial appreciation of the evidence may be set aside on appeal. This is consistent with the established “plainly wrong” test: Gan Yook Chin & Ors v Lee Ing Chin & Ors [2004] CLJ 309 (FC). [8] As the trier of fact, the SCJ had the benefit and advantage of seeing and hearing the witnesses and the opportunity to assess their demeanour: Rasidin Bin Partojo v Frederick Kiai [1976] 2 MLJ 214. In the present appeal, I had ordered for the award of damages for the continuing trespass to be granted at RM500.00 per day from 19.9.2022, but the correct date was from 19.2.2022 instead as that was the date when the Plaintiff discovered the trespass. The order of RM20,000.00 per se by the SCJ in respect of the trespass was at variance with some of the case laws that I will elaborate later in this Grounds of Judgment. Other than that, this Court did not disturb the findings of the SCJ as it had not been shown by the Appellant D1 that the SCJ had been plainly wrong in her assessment of the evidence adduced by the parties, that it could not reasonably be explained or justified and one which no reasonable judge could have reached: Tengku Dato Ibrahim Petra Tengku Indra Petra v Petra Perdana Berhad & Anor Appeal [2018] 2 CLJ 641. [9] From the Memorandum of Appeal, the issues to be decided by the Court may be summarised as follows: i. whether the SCJ erred in fact and law in holding that D1 had engaged D2 and/or D3 to remove the cotton waste from D1’s premisesand that D1 had any dealings with D2 and/or D3 (numbers 1 -12); and ii. whether the SCJ erred in fact and law in failing to hold that D1 did not trespass into the Plaintiff’s land (numbers 13 -1 4). [10] I found that there was no dispute that the photographs showed the cotton waste on the Plaintiff’s land that had been brought by SP2 after they were loaded onto the lorry by SP4. It was also undisputed that D2 was SP4’s father. Although it was not him who operated the backhoe during the material time, D2 was the owner of the backhoe while SP4 owned CSCEW. Plaintiff never gave any permission to any one to dispose of the cotton waste on his land. That was why SP4 stopped work on

19.2.2022 and informed SD1 that he could not complete the work. Pursuant thereto, the following day, SD1 on behalf of D1 had appointed SNSB to supply the industrial garbage bins to dispose of the cotton waste from its premises. This was the correct measure that D1 should have employed to dispose of the cotton waste from its premises. [11] The SCJ made several findings as stated in her grounds of judgment in paragraphs 31 – 36 which I will reproduce parts of them here for ease of reference: [31] Mahkamah mendapati punca pencerobohan ke atas tanah plaintif di dalam kes ini tercetus apabila satu kebakaran teklah berlaku di kilang milik defendna pertama pada tarikh 13 Februari 2022 (fakta yang tidak dinafikan) dan akibat daripada kebakaran tersebut terdapat banyak sisa kapas terbakar terdampar di kilang defendan pertama dan bagi menyelesaikan masalah sisa kapas terbakar yang terdampar di kilang defendan pertama, defendan pertama telah melantik CSCEW (Chai Sing Choon Excavator Works) yang dimilika oleh Chai Kah Wei iaitu defendan kedua di dal;am kes ini, untuk melakukan kerja-kerja mengeluarkan sisa kapas terbakar tersebut. Lanjutan daripada lantikan defendan kedua oleh defendan pertama tersebut, pekerja defendan kedua yang juga merupakan pemandu back hoe dan bapa kepada defendan kedua telah membawa sebuah backhoe nombor pendaftaran AGW 6585 ke premislkilang defendan pertama bersama-sama dengan sebuah lori bernombor pendaftaran AAP 536 untuk melakukan kerja pengeluaran dan pelupusan sisa kapas terbakar tersebut. Kerja-kerja tersebut dilakukan bermula dari Tarikh 14- 2-2022 sehingga 19-2-2022 sepertimana yang diplidkan di dalam pembelaan defendan pertama. Daripada fakta yang di persembahkan di hadapan Mahkamah ini, Mahkamah dapat melihat fakta yang tidak dinafikan bahawa backhoe dan lori tersebutlah yang telah idtemui oleh plaintif sewaktu plaintif membuat lawatan di atas tanah miliknya sedang membuang sisa kapas terbakar milik defendan pertama secara menceroboh pada tarikh kejadian iaitu pada 19-2-2022 (rujuk gambar dimuka surat 39 sehingga 67 di dalam Ikatan Dolumen bersama Bahagian B). [32] Mahkamah ini juga diperlihatkan dengan fakta yang tidak dinafikan iaitu bahawa defendan kedua di dalam pengetahuan dan keizinan defendan pertama telah mengarahkan pekerjanya yang juga merupakan bapanya bernama Chai Sing Choon untuk membawa backhoe milik defendan kedua masuk ke kilang defendan pertama untuk melakukan kerja-kerja pengeluaran dan pembuangan sisa kapas terbakar tersbeut ke atas tanah milik plaintif tanpa kebenaran plaintif. Hal dan perkara ini jelas dinyatakan oleh saksi plaintif Chai Sing Choon (SP4) dan juga Chai Kah Wei (SD3) iaitu defendan kedua di dalam kes ini, di dalam keterangan bersumpah mereka semasa pemeriksaan utama dan pemeriksaan balas membuat pengakuan di Mahkamah ini bahawa mereka telah dilantik oleh defendan pertama untuk menjalankan kerja-kerja pemngeluaran sisa kapas terbakar daripada kilang …. ... [36] Persoalan selanjutnya yang perlu diputuskan oleh Mahkamah adalah sama ada defendan-defendan telah menceroboh tanah plaintif tersebut. Mahkamah ini berpuashati bahawa defendan pertama dan defendan kedua (D2) secara bersesama mempunyai niat yang jelas telah melakukan pencerobohan ke atas tanah milik plaintif tersebut. Bagi menetukan kewujudan pencerobohan, Mahkamah berpegang kepada penghakiman Hakim Abdul Malik Ishak HMT (pada ketika itu) di dalam kes Terra Damansara Sdn Bhd v Nandex development Sdn Bhd [2006] 8 CLJ 657 (juga telah dihujahkan oleh peguam plaintif) yang telah menjelaskan tort pencerobohan ...”. LIABILITY [12] The evidence clearly showed SD1 admitting that the cotton waste were D1’s which came from its premises and that the company had appointed CSCEW to clear the premisesfrom the cotton waste. SD1 agreed that the waste had to be disposed of properly at a right place (tempat yang betul). However, she denied that it was D1’s duty to tell the contractor where is the right place to dispose them. She also did not know where to dispose them. When the Plaintiff’s counsel suggested it was D1’s responsibility to ensure all the residue from the fire were disposed of properly, SD1 agreed to his suggestion. Now, if the management of the company had immediately consulted officers at the Jabatan Alam Sekitar regarding the fire, they would have definitely instructed D1 on the correct method to dispose of the cotton waste. [13] Unfortunately, D1 did not bother to do so and instead appointed CSCEW to carry out the task and they did so in a rather conventional way of just “chucking out” the waste on a piece of undeveloped land (the land) and without getting anyone’s or the authority’s approval for that matter! Rather belatedly, D2 tried to bring in unpleaded issues on the proper methods of disposal but this was objected to by D1’sv Counsel and rightly so as it is trite that parties were bound by their pleadings; Koh Siak Poo v Sayang Plantation Berhad [2002] 1 CLJ 501; Projek Lebuh Raya Utara-Selatan Sdn Bhd v Kim Seng Enterprise (Kedah) Sdn Bhd [2013] 6 CLJ 958. This is to prevent any surprises at the trial. In this way, the parties coud prepare their respective cases and the Court too will adjudicate on those issues and no more: Asia Hotel Sdn Bhd v Malaysian Insurance (M) Sdn Bhd [1992] 2 CLJ Rep 121. [14] It appeared from SD1 and SD2’s testimony that they did not care where SP4 disposed of the cotton waste as long as they were taken out from the company’s premise. This was because in cross-examination, SD2 was asked by D2’s counsel and he replied SD1 was in charge of managing SP4 to clear the cotton waste from the premises and SD2 admitted he was the one who gave her the authority to do so. However, SD2 answered that SD1 told SP4 how to dispose the cotton waste, whereby his reply materially contradicted SD1’s reply earlier that she did not know where to dispose them and merely told SP4 to find the “right place” as can be seen in the following excerpt: . RAVEE Setuju tak, saya cadangkan kerani hanya suruh dia keluarkan sampah itu sisa-sisa sahaja. Dia tak bagi tahu macam mana nak buang sampah itu. Setuju? ENG YL Tak setuju. [15] The SCJ had concluded that D1 had dealings with SD3 through his father (SP4) to dispose of the cotton waste but denied any responsibility for D2 and D3’s actions in carrying out the task. In paragraph 35 of her grounds of judgment, the SCJ stated: “[35] Seterusnya, sama ada defendan pertama bersekongkol dengan defendan kedua di dalam kes ini melakukan perbuatan dan tindakan pengeluaran dan pelupusan sisa kapas terbakar tersebut di atas tanah milik plaintif tanpa kebenaran plaintif, Mahkamah mendapati tindakan defendan kedua mengeluarkan sisa kapas terbakar tersebut dan membuang sisa kapas tersebut secara menceroboh di atas tanah plaintif adalah di dalam pengetahuan defendan pertama [sepertimana di bincangkan terdahulu di atas perenggan 32]. Jelas terbukti terdapat kaitan antara defendan kedua sebagai pemilik backhoe dan yang telah berurusan dengan defendan pertama melalui bapanya [SP4] dengan membenarkan backhoe milik defendan kedua tersebut digunakan memasuki premis defendan pertama untuk mengambil dan mengeluarkan serta melupuskan sisa kapas terbakar tersebut secara menceroboh di atas tanah plaintif…”. [16] The Defendants’ defence was just bare denials. Counsel for the Plaintiff referred to the case of KV Silvam K Narayanan v Nice Vista Sdn Bhd & Satu Lagi [2017] MLRHU 373 where the learned Judge held: “[34] Saya mendapati Penyata Pembelaan Defendan hanya menafikan sebarang penglibatan secara langsung dan tidak langsung dalam tindakan pencerobohan bengkel perniagaan diatas Tanah tersebut. Defendan-defendan juga menyatakan mereka tidak bertanggungjawab terhadap tuntutan pampasan ganti rugi yang dikemukakan oleh Plaintif dalam tindakan ini. Saya mendapati pembelaan Defendan hanyalah bersifat penafian semata-mata bahawa mereka tidak terlibat didalam pencerobohan tersebut. Namun demikian, saya mendapati tiada terdapat apa-apa bukti yang dikemukakan oleh Defendan-Defendan yang menunjukan terdapatnya pihak lain yang terlibat dan mempunyai kepentingan bagi pengosongan Tanah tersebut.” [Emphasis added] [17] In the case of Bank Perusahaan Kecil Dan Sederhana Malaysia Bhd v. Pinggir Merpati Sdn Bhd & Ors [2016] 5 MLRA 622; [2016] 5 MLJ 328, the Court of Appeal held: "There was no evidence forwarded by the defendants to substantiate that denial. In a civil litigation, both parties bear the same burden to establish their respective cases on the balance of probabilities. Unless of course the plaintiff's case is so devoid of merits so as to render it as one that is obviously unsustainable, and fit to be dismissed in limine". [18] The Defendants in this case did call witnesses to substantiate their defence that they were not responsible for the trespass committed on the Plaintiff’s land, namely SD1, SD2 and SD3 (who was D2). However, the defence of D1 and D2 were bare denials despite the glaring evidence of their liabilities before the court. The SCJ found that SP4 had admitted he was appointed by D1 to carry out the task of disposing the waste. The SCJ also commented that SD3 was evasive in his reply when during his cross-examination by D1’s Counsel, SD3 relied that D1 never had any dealings with him. But when cross-examined by the Plaintiff’s counsel, he agreed although he was the registered owner of the backhoe all the dealings with D1 was made by his father, SP4. All these finger-pointing to other parties were done to absolve themselves from any liability for the trespass and damages to the Plaintiff’s land. Nevertheless, the SCJ having considered their evidence made the right finding that D2 with the knowledge and consent, or rather, acquiescence of D1, had directed his worker-father, SP4, to to bring his backhoe to the premises and carry out the task of removing the cotton waste from there to the Plaintiff’s land using the lorry driven by SP2 (SP3’s worker). [19] In my view, SP4 and SD3 were a “father-and-son team”. From the evidence adduced, I gathered that although SD3 tried to “deflect” any imputation of liability upon him as the owner of the backhoe to his father, clearly CSCEW was his father’s business and the latter used his son’s backhoe to carry on the business of excavating works. He cannot run away from this liability of trespass committed by his father who was contracted by D1 to clear the cotton waste from its premises. SP4 said he was directed by the “lori punya orang” to dispose the cotton waste on the land. SP3 testified that SP4 obtained the contract from D1 and “CSC, dia muatkan, di tolakan dan dinaikan”. SP4 said he was there doing the works only for half an hour before the police came but SP2 testified that SP4 operated the backhoe and on that day alone (19.2.2022), they had done 5 trips from the premises to the land. SP2 was asked who showed him where to dispose the cotton waste and he replied it was SP4 (page 105 of the Notes of Evidence). I found on a balance of probabilities, the likelihood of SP4 directing SP2 to the land after they loaded the cotton waste onto the lorry was more probable since SP4 was the party appointed by D1, rather than accepting SP4’s accusation that SP2/SP3 who instructed him to dispose the cotton waste on the Plaintiff’s land. [20] The first 12 grounds in the memorandum of Appeal were on the purported errors of the SCJ in considering the evidence of the witnesses in this case. Of course, this would have a direct bearing on the credibility of a witness in order for the Court to make finding(s) of fact pertaining to the crux of the matter of who was responsible for making the Plaintiff’s land a dumping ground for the cotton waste from D1’s premises. In regard to the issue of credibility of a witness (particularly SP4 and SD3), I refer to the case of Dato’ Seri Anwar v Public Prosecutor [2002] 3 CLJ 457, where Haidar Mohd Noor FCJ (as His Lordship then was), quoted the decision of the trial judge in that case with approval and reiterated the test for either accepting or rejecting the evidence of a witness, was as follows: “The Privy Council has stated that the real tests for either accepting or rejecting the evidence of a witness are how consistent the story is with itself, how it stands the test of cross-examination, and how far it fits in with the rest of the evidence and the circumstances of the case (see Bhojraj v. Sitaram AIR [1936] PC 60). It must, however, be observed that being unshaken in cross-examination is not per se an all sufficient acid test of credibility. The inherent probability of a fact in issue must be the prime consideration (see Muniandy & Ors v. PP [1966] 1 MLJ 257). It has been held that if a witness demonstrably tells lies, his evidence must be looked upon with suspicion and treated with caution, but to say that it should be entirely rejected would be to go too far (see Khoon Chye Hin v. PP [1961] MLJ 105). It has also been held that discrepancies and contradictions there will always be in a case. In considering them, what the court has to decide is whether they are of such a nature as to discredit the witness entirely and render the whole of his evidence worthless and untrustworthy (see De Silva v. PP [1964] MLJ 81). … There is no rule of law that the testimony of a witness must either be believed in its entirety or not at all. A court is fully competent, for good and cogent reasons, to accept one part of the testimony of a witness and to reject the other. [Emphasis added] [21] Having said that, I now go on to the issue of trespass (grounds 13 and 14) to consider the case laws on the tort of trespass. In Yip Shou Shan V Sin Heap Lee – Marubeni Sdn Bhd [ 2002] 5 MLJ 113 it was held that “… Trespass was essentially an interference with the possessory rights and not ownership, since registered ownership does not usually connote legal possession…” and the court found the defendant was liable to the plaintiff both in trespass and nuisance and the plaintiff had suffered actual damage in consequence of the torts committed by the defendant. Here, the Plaintiff’s possessory right had been interfered with as a co-owner of the land having ½ share of it. He had been denied of his right to enjoy the property by the continuing trespass. I will elaborate on this further below. [22] Trespass includes the acts of “wrongful entry into land” as discussed in the cases of Tan Wee Choon v Ong Peck Seng & Anor [1985] 1 CLJ 478; [1986] 1 MLJ 322 and Janaki & Anor v Cheok Chuan Seng & Anor [1973] 2 MLJ 96 or “remaining on it” as in the case of Segar Restu (M) Sdn Bhd v Wong Kai Chuan & Anor [1994] 4 CLJ 757, and Cheah Kim Tong & Anor v Taro Kaur [1989] 3 MLJ 252. In the present case, this Court found that trespass was committed when the Defendants jointly committed wrongful entry on the land and disposed the cotton waste there and subsequently failed to remove the cotton waste which they deposited there. It would have been very easy to ask for permission from the Plaintiff to go in and remove the cotton waste after SNSB was appointed to complete the clearing works. This Court opined that the Defendants did not do so because a police report had been lodged by the Plaintiff and they could have been collectively implicated if they were to own up then. In the case of Cheah Kim Tong (supra) it was held that “in the case of a continuing trespass, a fresh cause of action arises di diem in diem...”. [23] In Tan Wee Choon (supra), Wan Yahya J (as His Lordship then was) stated: "... The plaintiff in this case is an undisputed registered owner of the land and all he need do, to successfully move this court into issuing the orders prayed, is to show that the defendants' action amounted to a denial of his indivisible right over his property. It is unconscionable to accept that the defendants' continuing use of this passage, driving their vehicles up and down the plaintiff's land, tearing down the fences and preventing the plaintiff from carrying on his proposed business can mean otherwise than a denial of the latter's right to enjoy a peaceful occupation of his own land. Trespass to land unlike criminal trespass is completed once a person wrongfully, albeit peaceably, intrudes into the land in the possession of another, even where no damage is done. Trespass to land covers all unlawful entry and includes taking possession, pulling down or destroying anything permanently fixed to the land. The following passage on what constitutes trespass to land is found in Halsbury's Laws of England (3rd ed.), Vol. 38 at page 739: "Every unlawful entry by one person on land in the possession of another is a trespass for which an action lies, although no actual damage is done. A person trespasses upon land if he wrongfully sets foot on, or rides or drives over it, or takes possession of it, or expels the person in possession, or pulls down or destroys anything permanently fixed to it, or wrongfully takes minerals from it, or places or fixes anything on it or in it, or, it seems, if he erects or suffers to continue on his own land anything which invades the airspace of another, or if he discharges water from another's land, or sends filth or any injurious substance which has been collected by him on his own land on to another's land." [Emphasis added] [24] The Plaintiff had withdrawn the suit against D3 and utilised SP2 and SP3 as his witness. Otherwise, he would not be able to prove his case because he did not know what transpired on the land from 14 – 18.2.2022. SP4 was a “double-edged” sword as the Court could see that he was an interested witness where he tried not to implicate himself alone in this case. Nevertheless, from the facts and the established case laws, there was no doubt at all that the first two Defendants in the present case had jointly committed trespass whether through themselves or their employees or agents. DAMAGES [25] In the case of Voo Nyuk Fah & Anor v Lam Yat Kheong & Anor [2012] 5 CLJ 229, the Court of Appeal stated the principles on assessment of damages as follows: “In awarding damages, be it for breach of contract or in the commission of tortious act, the principle of “restitution in integrum” applies. In common parlance, it means that damages in terms of monetary compensation can be awarded to replace an injured party in the same or original position occupied (or enjoyed) by him before the occurrence of the injury or wrongful act. See Livingstone v Rawyard Cool Co. [1990] 5 App. 25 which was referred to in Subramaniam Paramasivam & Ors. v Malaysian Airlines System Bhd. [2002] 1 CLJ 230.”. [26] An appellate Court should not interfere with the damages awarded by the court below. However, where there was an omission by the trial judge to consider certain damages, this Court has a duty to reverse the finding. In this regard, I refer to Laksamana Realty Sdn Bhd [2005] 4 CLJ 871. There the court there cited Tan Kuan Yau v Suhindrimani Angasamy [1985] 1 CLJ 429 where the Federal Court held: "The principle that could guide this court in determining whether it should interfere with the quantum of damages is crystal clear. What is also clear is that much depends on the circumstances of each case, in particular the amount of the award. In a particular case therefore it is for the appeal court to consider whether in the light of the circumstances of that case there is an erroneous estimate of the amount of the damage in that either there was an omission on the part of the Judge to consider some relevant materials or he had admitted for purposes of assessment some irrelevant considerations. If the court is satisfied or convinced that the Judge has acted upon wrong principles of law then it is justified in reversing; indeed it is its duty to reverse the finding of the trial Judge." [Emphasis added] [27] Having considered the facts of the case and the award of damages, I found it necessary to vary the damages awarded by the SCJ. I had awarded exemplary damages in the amount of RM30,000.00 and varied the damages for trespass by awarding RM500.00 per diem for the continuing trespass because the SCJ held that the Plaintiff had not shown what damages he had suffered as a result of the continuing trespass. i. Exemplary damages [28] I refer to the case of Ooi Yok Choo v Lim Siong Foundry [1963] 1 LNS 89, where the Court discussed the issue of exemplary damages and stated: “Generally damages are directed to the compensation of the plaintiff for the harm done to her; exceptionally they may look also to the punishment of the defendant. Such damages are variously called punitive damages, vindictive damages, exemplary damages, and even retributory damages. They can apply only where the conduct of the defendant merits punishment, which is only considered to be so where his conduct is wanton, as where it discloses fraud, malice, violence, cruelty, insolence or the like, or, as it is sometimes put, where he acts in contumelious disregard of the plaintiff's rights. The torts where exemplary damages are most likely to feature are those which affect the person, rather than those which affect property, since, outside personal injury, the former generally require intentional, even malicious, conduct on the part the tortfeasor. Beyond this, however, the Courts have allowed exemplary damages in torts which affect property, where there has been a wanton intentional interference by, the defendant. (Mayne and McGregor on Damages; 12th Edn., paras. 207 and 208).”. [Emphasis added] [29] In the present case, the cotton waste from the fire at D1’s premises was not disputed as still being there on the Plaintiff’s land to-date. The fact that D1 had engaged SNSB to finish the clearing and disposal works of the remaining cotton waste from its premises but chose not to take any action to remove the waste they had dumped on the land, in my view, showed the complete disregard by D1 of its responsibilities towards the Plaintiff, despite acknowledging that there must be proper disposal of its own waste and not on the Plaintiff’s land. The SCJ did not grant this prayer but ordered the cotton waste to be removed by the Defendants within 7 days and costs to be borne by D1. I agreed with this decision but also ordered that an amount of RM30,000.00 to be paid by D1 (as the owner of the cotton waste) to the Plaintiff as exemplary damage. ii. Trespass [30] The Court referred to the case of Sebumi Magnetik Sdn Bhd v You Fui Ming [2018] 1 LNS 1830 where the court stated: “[9] The Court of Appeal had succinctly elucidated the principles in assessment of damages for trespass in Othman bin Ali & 290 Ors v. Bukit Lenang Development Sdn Bhd [2016] 6 CLJ 508; [2016] 3 MLJ 708 which in part is reproduced below – "[31] It was undeniable that in a normal case where once a trespass to land or a deprivation of use of land had been established, the normal measure of damages to be applied would be the actual proof of 'loss of rental' or a reasonable estimation of such a 'rental return' that was directly attributable and flowing from a lawful use of the land but denied by that wrongful action. This was consistent with the two underlying basic principles in law which required that any damages awarded would, so far as money can, put the affected or deprived party in the same position as he would have been if the tort had not occurred subject to the further overriding consideration that such damages to be awarded was in any event not too remote or speculative in nature. [32] In Inverugie Investments v. Hackett [1995] 3 All ER 841, the Privy Council opined (in an appeal from the Bahamas Court of Appeal) that although the plaintiff might not have suffered any actual loss by being deprived of the use of property, he was still entitled to recover a reasonable rent for the wrongful use of his property by the trespasser, and similarly, even if the trespasser might not have derived any actual benefit from the use of the property, he was still obliged to pay a reasonable 'rent' for the benefit or use he enjoyed based on what has been termed as the 'user principle'.”. [Emphasis added] [31] The SCJ awarded only RM20,000.00 as lump sum to be paid by each Defendant to the Plaintiff despite finding there was continuing trespass (refer to paragraph 29 above). However, in IOI Corporation Berhad v. Gemencheh Granite Sdn Bhd [2015] MLRHU 311, the High Court held that the claim for amount of RM5,000.00 per day for every day trespass was reasonable taking into the consideration of the nature of usage of the said land by the defendant and given that the said land was at the material time vacant and unoccupied and been deprived of its use. The Court stated: “It is trite that trespass to land is actionable per se without requirement of and proof. The tort of trespass requires the act of entering land in the possession of another without lawful justification. In the case of Kwong Hing Realty Sdn Bhd v. Malaysia Building Society Bhd (American International Assurance Co Ltd, Third Party) [1996] 1 MLRH 382; [1997] 5 MLJ 670 KC Vohrah J held: "Trespass to land consists of any unjustifiable intrusion by one person upon the land in the possession of another. Any trespass is actionable [2015] MLRHU 311 IOI Corporation Berhad v. Gemencheh Granite Sdn Bhd pg 11 per se, there being no necessity for pure actual damage. Whether the Defendant did or did not build the wall was of no importance in this case as there was no dispute that there was encroachment and if the encroachment was unjustifiable or unwarrantable, the Defendant was liable." [32] The Plaintiff appealed on the quantum because the SCJ refused to give daily damages for the trespass. Trespass is actionable per se and need not be proved. He also appealed against the nominal damages of R20,000.00. Under s. 24 of the Environmental Quality Act 1974 [Act 127], the fine is RM1,000.00 per day for the continuing offence. The Plaintiff submitted that SD1’s evidence showed clearly that D1 had breached the provision of s.24(2) of the 1974 Act as the land could not be utilised while the cotton waste remained on it without any action taken to dispose them properly. The SCJ awarded RM20,000.00 to be paid by D1 and D2 to the Plaintiff which I had maintained the order. Additionally, considering the per diem awards in current case laws, I am of the view that the Plaintiff would be adequately compensated in damages of RM500.00 per day to be paid by D1 to the Plaintiff for the continuing trespass for the period of 19.2.2022 to 19.2.2024 (date of stay on the SCJ’s decision) and RM500.00 to be paid on a daily basis commencing from 7 days after the date of this Court’s order until all the residues from the fire have been removed from the Plaintiff’s land. The amount of RM500.00 per day is still less than RM1,000.00 daily fine that could be imposed if a prosecution had ensued. CONCLUSION [33] Pursuant to the above considerations, the Court found on a balance of probabilities that the 1st and 2nd Defendants were liable for the trespass committed upon the Plaintiff’s land and allowed the appeal by the Plaintiff against quantum. Additionally, the Court dismissed the appeal by the 1st Defendants against liability and quantum with costs. Dated 4 April 2025 Sgd. NOOR RUWENA BINTI MD. NURDIN Judge High Court of Malaya, Taiping Counsels: For the Appellant / 1st Defendant: Mr. Ravinder Singh Sodhi A/L Manmohan Singh Sodhi Messrs. Sodhi Chambers, Petaling Jaya. For the Respondent / Plaintiff: Mr. Subramaniyan A/L A. Nambiar Messrs. Subramaniyan, Kuala Lumpur.