GM Aero Support Sdn Bhd v Kerajaan Negeri Pahang (CA-25-6-10/2023)

AND KERAJAAN NEGERI PAHANG …RESPONDENTS

GENTING HIGHLANDS BERHAD [COMPANY NO: 196501000126 (5954-D)] GROUNDS OF JUDGMENT INTRODUCTION [1] In Enclosure 1 the Applicant filed an ex parte application for leave pursuant to O. 53 r.6 of the Rules of Court 2012 to commence Judicial Review (“JR”) proceeding against the Respondents. The Attorney General does not object. Having found the Applicant fulfilled the requisite threshold, this Court granted leave. [2] The 5th Respondent now appealed against that order. BACKGROUND [3] The Applicant filed for leave to apply for JR where it is seeking the Court for the following:

an order of Certiorari to quash the whole of the decision of the 1st Respondent, 2nd Respondent and/or the 3rd Respondent in granting approval to alienate to the 5th Respondent the following lands: i. H.S.(D) 19705 PT 25148; ii. H.S.(D) 19707 PT 25147; iii. H.S.(D) 19702 PT 25150; iv. H.S.(D) 19708 PT 25146; v. H.S.(D) 19701 PT 25151; vi. H.S.(D) 19706 PT 25149; vii. H.S.(D) 19710 PT 25145; and viii. H.S.(D) 19704 PT 25144 all situated in Mukim Bentong, Daerah Bentong, Pahang (herein collectively referred to as “The 8 Pieces of Land”);

an order for Certiorari to quash the whole of the decision of the 2nd, 3rd and/or 4th Respondents in issuing land titles of The 8 Pieces of Land to the 5th Respondent;

an order for Mandamus that the 1st, 2nd, 3rd and 4th Respondents shall cancel and/or revoke the Land Titles of The 8 Pieces of Land within 7 days from the Order of this Court;

a declaration that the decision of the 1st, 2nd and/or the 3rd Respondents in granting approval to alienate The 8 Pieces of Land to the 5th Respondent was made without any authority of law and/or ultra vires the National Land Code 1965 and is illegal, invalid, unlawful and/or no effect in law;

a declaration that the decision of the 2nd, 3rd and/or 4th Respondents in issuing the land titles of The 8 Pieces of Land to the 5th Respondent was made without any authority of law and/or ultra vires the National Land Code and is illegal, invalid, unlawful and or no effect in law;

a declaration that the 5th Respondent is not entitled to rely on the land titles of The 8 Pieces of Land;

a declaration that the alienation and the issuance of the land titles for The 8 Pieces of Land by the 1st, 2nd, 3rd and 4th Respondents to the 5th Respondent, is illegal, unlawful and contrary to the provisions of the National Land Code 1965, Federal Constitution and other relevant legislations;

damages and losses suffered by the Applicant due to the decisions made by the 1st, and/or 2nd, 3rd, 4th Respondents are to be assessed and to be paid by the Respondents to the Applicant; and

that the Applicant be granted leave to file further affidavits for the purpose of the substantive hearing of the JR and leave is also granted to amend the Statement pursuant to O. 53 r. 3 of Rules (if necessary) upon obtaining further documents from the Respondents. FINDING [4] The first issue to be fulfilled by the Applicant is to show to the satisfaction of this Court that it has the locus standi to file the JR application. If this Court found the answer to this issue in the negative, the leave application shall be dismissed in limine. [5] To determine whether the Applicant has the locus standi, the Applicant need only to demonstrate that it is a person aggrieved by the decisions made by the Respondents. O.53 r.2(4) had codified the test for locus standi in JR applications irrespective of the type of reliefs sought. [6] O.53 r.2(4) only requires that the Applicant show that it is not a busybody who interfere in matters that do not concern itself and must show that it is not a stranger who suffered no legal wrong, injury or prejudice by the decisions. This principle was laid down by the Federal Court in Malaysian Trade Union Congress v Menteri Tenaga, Air dan Komunikasi [2014] 3 MLJ 145. The Federal Court also held that an applicant need not establish “infringement of a private right or the suffering of special damage” but need only to show that he has a real and genuine interest in the subject matter. The applicant need only to show that he is an aggrieved person, that he has “real and genuine interest in the subject matter of review. That is the test. [7] This principle was followed recently by the Court of Appeal (“COA”) in Perbadanan Pengurusan Trelisses & 9 Ors v Datuk Bandar Kuala Lumpur & 3 Ors [2021] 3 MLJ 1 where it held that the single threshold test applies in public interest litigation - such as this one before this Court. That single test is whether the applicant is adversely affected by the impugned decision. The COA further held that as O.53 r.2(4) does not make any distinction between threshold and substantive locus standi, the courts should not read into O.53 any requirements which are simply not there. [8] I am satisfied that the Applicant had successfully showed in its O.53 Statement how it was directly affected and aggrieved by the Respondents’ decisions in respect of The 8 Pieces of Land, by the Respondents. [9] Once the Applicant had established its locus standi, this Court proceeded to determine whether leave should be granted to the Applicant. [10] The purpose of leave in a JR proceeding is to protect the public administration against false, frivolous or vexatious application. Leave acts as a filter against unmeritorious proceedings : Kemper Reinsurance Co v Minister of Finance & Ors [2000] 1 AC 1, Lam Kong Co Ltd v Thong Guan Co Pte Ltd [2000] 3 CLJ 769, FC. [11] The test to be applied whether leave is to be granted or not was laid down in WRP Asia Pacific Sdn Bhd v. Tenaga Nasional Bhd [2012] 4 CLJ 478 where the Federal Court held: “Without the need to go into the depth of the abundant authorities, suffice if we state that leave may be granted if the leave application is not thought of as frivolous, and if leave is granted, an arguable case in favour of granting the relief sought at the substantive hearing may be the resultant outcome. A rider must be attached to the application though i.e. unless the matter for judicial review is amenable to judicial review absolutely no success may be envisaged.” [12] The following could be distilled from WRP Asia Pacific Sdn Bhd:

Where the application is found to be ‘frivolous and vexatious’, no leave shall be granted. What is frivolous and vexatious would depend on the facts of the case and include applications which are an abuse of the process of the court.

Where an arguable case for further investigation at the substantive stage is not made out, no leave shall be granted. The threshold for this category is very low. All that is required at this stage is for the judge to peruse the material placed before the court by the applicant and see whether "an arguable case in favour of granting the relief sought at the substantive hearing may be the resultant outcome". Leave of court is granted in all cases except cases where "absolutely no success may be envisaged".

Where the subject matter for review is not amenable to judicial review, again, no leave shall be granted. This category includes non-justiciable matters, policy considerations, and management prerogatives. [13] I echo the observations by my learned brother Amarjeet Singh J in Permodalan Negeri Selangor Bhd v Menteri Kewangan Malaysia [2024] CLJU 634 where His Lordship held: “[46] In judicial review proceedings, it is absolutely imperative that the impugned decision be properly identified and specifically stated in the application for leave. If the judicial review application is taken against the wrong authority or the wrong decision then invariably the judicial review becomes incompetent. It is apposite in this regard to refer to the decision of the Federal Court in Majlis Perbandaran Pulau Pinang v. Syarikat Bekerjasama-sama Serbaguna Sungai Gelugor Dengan Tanggungan [1999] 3 CLJ 65 where the duty to identify the impugned decision was stated as follows: It is right to say, at the risk of being trite, that administrative law is much concerned with the legality of procedures leading up to a decision and, of course, of the decision itself. It is therefore a matter of the first importance to correctly identify the decision sought to be impugned... Failure to observe these basic requirements could have fatal consequences as the following authorities will serve to illustrate... [47] Thus, the existence of a "decision" or "action" or an "omission" is necessary to commence statutory judicial review proceedings.” [14] The Applicant had correctly identified the impugned decisions. These decisions are amenable to JR. The JR was filed against the appropriate authorities that are concerned with these impugned decisions. Those decisions affected the Applicant directly. The Applicant possessed the locus standi to proceed with the JR as it is an aggrieved party. CONCLUSION [15] Having scrutinised the Applicants’ O.53 Statement and the evidence before this Court, I am satisfied on the existence of the impugned decisions that are the subject matter of the JR. I had also set out the locus standi of the Applicant to make this application. Applying the principle set out in WRP Asia Pacific, Malaysian Trade Union Congress, Perbadanan Pengurusan Trelisses, Kemper Reinsurance Co and Lam Kong Co Ltd v Thong Guan Co Pte Ltd, and taking into account that the Attorney General does not object to the Applicant’s leave application, I am fully satisfied that leave shall be granted for this Court to proceed to hear the substantive application in the JR proceeding. The application is not tainted with any false, frivolous or vexatious matters, and the impugned decisions are amenable to JR. Dated : 9 May 2024 -signed- (MOHD RADZI BIN HARUN) Judge High Court of Malaya PARTIES: Solicitors for the Applicant: Wong Li-Wei together with Tan Jia Shen and Sajetha Sezliyan Tetuan Sanjay Mohan Unit 5.01, Level 5, WORK@clearwater Jalan Changkat Semantan 50490 Kuala Lumpur Ruj: SM/WLW-2021/106 E-mel: wlw@sanjaymohan.com.my Solicitor for the 1st, 2nd, 3rd & 4th Respondents : Noor Fadzila Binti Ishak - SFC Pejabat Penasihat Undang-Undang Negeri Pahang Tingkat 3, Blok B, Wisma Sri Pahang 25000 Kuantan, Pahang Email : noorfadzila.ishak@agc.gov.my Solicitor for 5th Respondent : Tetuan Cheah Teh & Su L.3-1, No.2, Jalan Solaris Solaris Mont Kiara 50480 Kuala Lumpur. Ref : G02306/223/TEL/AG/JS) Email : litigation@ctslawyers.com.my