MAJLIS BANDARAYA PETALING JAYA v Bonifac Lobo A/l Robert V Lobo (B-01(NCvC)(A)-520-09/2021)

of the Malaysian Constitution [Federal Constitution] Between Bonifac Lobo A/L Robert V Lobo (NRIC No: 470605-71-5129) …Plaintiff And Majlis Bandaran Petaling Jaya …Defendant] S/N jvLpapH4N0iqO167tnUYEw CORAM LEE SWEE SENG, JCA GUNALAN A/L MUNIANDY, JCA AZMAN BIN ABDULLAH, JCA JUDGMENT INTRODUCTION [1] The Plaintiff/Respondent brought an Originating Summons at the High Court wherein he made an application under section 35 of the Courts of Judicature Act, 1964 (“CJA”) under the general supervisory and revisionary jurisdiction of the High Court for a declaration:

that the complaint made by the Defendant dated 17.07.2019 is without basis and invalid at law;

that all consequential proceedings are null and void at law, particularly Article 145(3) of the Federal Constitution [‘FC’], and be struck out or set aside. [2] Amongst the reliefs that he sought under Order 7 of the Rules of Court, 2012 are the following: 1) A declaration as above; 2) A stay of proceedings that arose out of the said complaint pursuant to section 35 of the Courts of Judicature Act, 1984 in S/N jvLpapH4N0iqO167tnUYEw the overriding interests of justice under Order 1A, ROC and the inherent jurisdiction of the Court; 3) Any other relief or remedy deemed fit by the Court; 4) Liberty to apply for consequential orders; and 5) Costs to be paid by the Defendant to the Plaintiff. SALIENT FACTS [3] The Respondent, at the material time until around June 2020, was the registered owner of the premises known as A-05-01 Blok A Plaza Kelana Jaya, Jalan SS7/13A, Petaling Jaya, Selangor [“the Premises”] under the Strata Title Act 1985 (Act 318) (STA 1985”). [4] The Appellant, Majlis Bandaraya Petaling Jaya, is a local authority created under the Local Government Act 1976 (Act 71) pursuant to Article 76(4) of the Federal Constitution. [5] The Respondent was summoned by the Appellant via a complaint dated 17.7.2019 (Exhibit BL-1). The summons related to an overhead shelter built on the accessory parcel to the Premises without prior permission from the Appellant under the SDBA 1974. [6] The Respondent was charged under section 70(1) of the SDBA

S/N jvLpapH4N0iqO167tnUYEw [7] The Respondent pleaded not guilty to the charge at the Magistrate’s Court. [8] The Respondent’s appeal to the Shah Alam High Court (Rayuan Jenayah No. BA-41(Ors)-6-07 Tahun 2020) was dismissed on 2.9.2020 based on DPP’s preliminary objection that interlocutory matters cannot be appealed against. [9] The Respondent filed an Originating Summons at the High Court for a declaration that the complaint made by the Appellant dated 17.7.2019 is without basis dan invalid at law. [10] On 12.8.2021, the Learned High Court Judge [‘LJ’] allowed the Respondent’s application with costs of RM1,000.00. OUR DECISION [11] In the LJ’s view, the issues that arose for the Court’s determination from the Appellant’s application were correctly stated to be these:

whether the Plaintiff’s application is res judicata because the Plaintiff’s appeal against the charge was dismissed by the

whether there was consent from the Public Prosecutor [‘PP’] as required under section 123 of the SDBA 1974 prior to the institution of the proceedings against the Plaintiff; and S/N jvLpapH4N0iqO167tnUYEw

whether the charge against the Defendant under section 70(1) of the SDBA 1974 is bad in law and without basis. [12] Upon duly deliberating on the above core issues and considering the factual matrix of the case in applying the relevant principles of law to the facts, the LJ came to a determination as follows:

Whether the Plaintiff’s application is res judicata because the Plaintiff’s appeal against the charge was dismissed by the

The Plaintiff’s application in this action is not res judicata because the Plaintiff’s appeal to the SAHC was not heard on its merits by the Court.

The records show that the Appeal was dismissed based on the preliminary objection by the DPP on the grounds that the High Court did not have the jurisdiction to hear the Plaintiff’s appeal against the ruling made by the Magistrate’s Court prior to the disposal of the proceedings at the Magistrate’s Court. The High Court agreed with the DPP’s preliminary objection and dismissed the appeal.

(ii) Was the consent of the Public Prosecutor [‘PP’] obtained prior to the institution of the proceedings against the Plaintiff under section 70(1) of the SDBA 1974?

This Court is satisfied that by virtue of the Article 145(3) of the FC, section 376(3) of the CPC and the “lzin S/N jvLpapH4N0iqO167tnUYEw Pendakwaan” issued by the DPP of Selangor that the PP had consented to and authorised the institution of the prosecution against the Plaintiff under section 70(1) of the

This Court is also satisfied that the officer of the Defendant has been authorised to conduct the prosecution under section 377(b) of the CPC. Exhibit B in the Afidavit Jawapan Defendan affirmed on 04.02.2021 (Enc. 8) shows that the authorisation was given by the Selangor DPP under section 377(b) of the CPC to the Legal Officer of the Defendant, Encik Mohd Yusof bin Che Aziz, to conduct the prosecution at the Selangor Magistrate's Court.

Accordingly, this Court finds that the prosecution is not in breach of Article 145(3) of the FC.

(iii) Is the charge against the Plaintiff under section 70(1) of the SDBA 1974 bad in law?

The Plaintiff was charged under section 70(1) of the SDBA 1974 for "erecting a building” without the prior written permission of the Defendant

Does the overhead structure built on the accessory parcel to the Premises constitute "erecting a building" under section 70 of the SDBA 1974? S/N jvLpapH4N0iqO167tnUYEw

The structure i.e. an overhead shelter, which is the subject matter of charge against the Plaintiff at the Magistrate's Court was built on an accessory parcel to the Premises.

The buildings that fall under the proviso in section 70(16) of the SDBA 1974 include those that fall within subparagraph (b)(ii) of section 70(16) i.e. "new or partly new or increased superstructure or roof on existing walls or existing foundations".

Hence, the overhead structure built on the accessory parcel to the Premises falls within the proviso in section 70(16) of the SDBA 1974. Accordingly, as held in Tropiland Sdn Bhd v Public Prosecutor (1992) 2 MLJ 261, the construction of the overhead shelter in this instant case falls within the proviso in section 70(16) of the SDBA and for this reason shall not be construed as erection of a building under section 70 of the SDBA 1974.

Can the Plaintiff be deemed to have erected the building on the Premises?

As the owner of the Premises, if a building was erected on the Premises, the Plaintiff can be deemed to have commenced or carried out the erection of the building on the Premises. However, in this instant case, since the construction of the overhead structure building falls within the proviso in section 70(16) of the SDBA 1974, the S/N jvLpapH4N0iqO167tnUYEw Plaintiff cannot be deemed to have commenced or carried out the erection of the building on the Premises.

Furthermore, based on the Percakapan dalam Pemeriksaan (Enc.2, BL-1, P.9) of Jubpiri bin Marwan, the officer of the Defendant that made the complaint, the Defendant was aware that the building was erected by the tenant of the Premises on the accessory parcel and not the Plaintiff, who is the owner of the Premises.

Therefore, the presumption under section 70(17)(a) of the SDBA 1974 that the owner of the land on which the building was erected had built the building has been rebutted for the following reasons:

the building falls within the proviso in section 70(16) of the SDBA 1974 and accordingly does not constitute "erection of a building" under section 70 of the SDBA 1974; and/or

(ii) the building was erected by the tenant occupying the Premises.

Accordingly, the Plaintiff as the owner of the Premises cannot be deemed to have erected the building or be held liable based on the presumption in section 70(17)(a) of the SDBA 1974 for the erection of the structure on the accessory parcel to the Premises. S/N jvLpapH4N0iqO167tnUYEw

Thus, it is hereby declared that the complaint dated 17.07.2019 made by the Defendant against the Plaintiff and the prosecution of the Plaintiff in respect of the building erected on the accessory parcel to the Premises is without basis and bad at law. [13] We have set out in detail the findings made by the LJ as the findings of fact, particularly in regard to the issue of the charge being bad in law have been seriously challenged by the Appellants as being premature, unwarranted and in excess of the jurisdiction of the civil court in an as action. [14] On the principal issue of res judicata, the LJ concluded that the law is settled that a Court does not have the jurisdiction to hear an appeal on any ruling made in the course of a trial or hearing of any cause or matter which does not finally dispose of the rights of the parties: see section 3 of the CJA 1964; and the Federal Court’s decision in Asia Pacific Higher Learning Sdn Bhd (Registered Owner and Licensee of the Higher Learning Institution Lincoln University College) v Majlis Perubatan Malaysia & Anor [2020] 2 MLJ 1; [2020] 3 CLJ 153; [2020] 2 AMR 517, [15] Our view is that the LJ had correctly stated and applied the law in resolving this issue. As there is no serious flaw in the LJ’s decision on a question of law, we will not dwell further on the issue of res judicata. [16] Proceeding now to the 2nd core issue relating to the powers of the PP, the LJ correctly observed that the PP is empowered by section 376(3) of the CPC to appoint DPPs who shall be under the direction and general S/N jvLpapH4N0iqO167tnUYEw control of the PP, and who may exercise all or any of the rights vested in the PP by or under the CPC or any other written law. [17] The dispute arose in regard to the consent for the prosecution (Izin Pendakwaan) of the Respondent was given by the Selangor Deputy Public Prosecutor (Timbalan Pendakwa Raya) pursuant to the PP’s powers under Article 145(3) of the Federal Constitution and the authority given to him under section 376(3) of the CPC. [18] After considering the Consent To Prosecute [‘Izin Pendakwaan’] the LJ held that she was satisfied that by virtue of the Article 145(3) of the Federal Constitution, section 376(3) of the CPC and the Izin Pendakwaan issued by the Deputy Public Prosecutor [‘DPP’] of Selangor, the Public Persecutor [‘PP’] had consented to and authorised the institution of the prosecution against the Plaintiff under section 70(1) of the SDBA 1974. [19] Also that the Prosecuting/Legal Officer of the Defendant [‘MBPJ’] had been authorised to conduct the prosecution of the Respondent under S.377 (b) of the CPC as pursuant to S.377(6) of the CPC, the Selangor DPP had issued the letter authorisation to the Legal Officer of MBPJ named therein to conduct the prosecution. [20] The LJ noted that the Respondent referred to the case of Subramaniam a/l Gopal v PP [2010] 2 MLJ 525 to support his contention that the PP neither consented to nor authorised the prosecution of the Respondent for the offence as per charge. [21] However, the LJ in our view, correctly held that the facts of Subramaniam (supra) are distinguishable in that in Subramaniam no S/N jvLpapH4N0iqO167tnUYEw consent to prosecute issued on behalf of the PP had been shown to or tendered, in Court. For this reason, the LJ concluded that the prosecution of the Plaintiff was instituted with the consent and/or authority of the PP. Accordingly, the prosecution is not in breach of Article 145(3) of the Federal Constitution. [22] What is left for our determination is the LJ’s finding on the ultimate issue, i.e., whether the charge against the Appellant under S.70(1) was bad in law. It is this decision from which the Appellant’s dissatisfaction stems in relation to whether the LJ had wrongfully exercised criminal jurisdiction in a civil action. [23] In gist, the charge against the Appellant was for erecting a building without the prior written permission of the local authority, in this instance, MBPJ. [24] In the process of arriving at her decision on this issue, the LJ duly considered the relevant provisions of S.70(1) and (2) of SBDA and the definition provision: S.70(16) of SBDA. In the interpretation of the provision to S.70(16), the LJ adopted the judgment in a case in point, Tropiland Sdn Bhd v Public Prosecutor [1992] 2 MLJ 61 by Vincent Ng J (as he then was). [25] Thereafter, upon examining the elements of the proviso to S.70(16), SBDA and the instant facts, the LJ came to a determination that the overhead structure built by the Respondent fell within the proviso to this sub-section and hence, that it cannot be construed as erection of a building under S.70, SBDA 1974. The LJ went on to further analyse the facts and the law, including the Strata Titles Act, 1985 [‘STA’]. Eventually, S/N jvLpapH4N0iqO167tnUYEw the LJ came to a finding that the Plaintiff (Respondent) as the owner of the Premises cannot be deemed to have erected the building or be held liable based on the presumption in section 70(17)(a) of the SDBA 1974 for the erection of the structure on the accessory parcel to the Premises. [26] It is this decision that raises concern as the LJ seems to have arrived at a finding on the charge that the Respondent was facing in the Magistrate’s Court, specifically that the Respondent cannot be held guilty of the charge. [27] The question before us was whether the LJ had come to a determination on the charge in the Court below and encroached into the realm of criminal jurisdiction beyond the purview of the Application vide the OS before her under the High Court’s civil jurisdiction. The resolution of this question would suffice for the disposal of this appeal on a significant point of law. [28] It was the Appellant’s contention that the LJ fell into serious error when she proceeded to make a finding on the charge under S.70(1), SDBA 1974 that was pending before the Magistrate’s Court where the trial had already begun. There was, thus, available to the Respondent a recourse to defend himself against the charge preferred. The right to pursue his defence remained intact which would have enabled him to sufficiently ventilate his grievance. [29] We are inclined to agree with the Appellant’s proposition that the various issues raised by the Respondent in the OS commenced pursuant to Section 35(1) of the Courts of Judicature Act, 1964 [‘CJA’] against the action taken or complaint made by the Respondent are premature given S/N jvLpapH4N0iqO167tnUYEw the fact that the same subject-matter was pending trial at the Magistrate’s Court [‘MC’]. It bears reiteration that the Respondent retained the right to put forth his defence and answer the charge at the MC in accordance with law and procedure as prescribed in the Criminal Procedure Code [‘CPC’]. In our view, the CPC provides adequate procedural safeguards for any accused person to present his defence and adduce evidence as he sees fit. Hence, it would appear that the Respondent’s action in commencing the present action to strike out the charge at the MC before conclusion of the trial is not only premature but, as contended by the Appellant, is tantamount to an abuse of the Court process. We would not touch on the Appellant’s allegation that recourse to the supervisory and revisionary jurisdiction of the HC under S.35(1) of the CJA could amount to mala fide on the part of the Respondent intended to obstruct a fair trial at the MC. We would acknowledge that the Respondent has in law the right to invoke S.35(1), CJA where the circumstances so permit in the interests of justice. [30] For convenience, we reproduce S.35(1), CJA below: “General supervisory and revisionary jurisdiction of High Court

35.(1) In addition to the powers conferred on the High Court by this or any other written law, the High Court shall have general supervisory and revisionary jurisdiction over all subordinate courts, and may in particular, but without prejudice to the generality of the foregoing provision, if it appears desirable in the interests of justice, either of its own motion or at the instance of any party or person interested, at any stage in any matter or proceeding, whether civil or criminal, in any subordinate court, call for the record thereof, and may remove the same into the High Court or may give to the S/N jvLpapH4N0iqO167tnUYEw subordinate court such directions as to the further conduct of the same as justice may require.

Upon the High Court calling for any record as aforesaid all proceedings in the subordinate court in the matter or proceeding in question shall be stayed pending further order of the High Court.” [31] Where the MC has adhered to the strict procedure prescribed under S.173 of the CPC, there can be no question of injustice occasioned to the Respondent for the HC to invoke its revisionary powers under S.323 of the CPC and S.35 of the CJA. It is not the intention of the revisionary process to serve as a backdoor access to the appeal process when the matter in dispute is appealable. [See Chia Ai Min v Public Prosecutor [2021] MLJU 2651] [32] We must emphasize that the Respondent would be entitled to exercise his unconditional legal right of appeal to the HC in the event of dissatisfaction with the finding of the Magistrate at the conclusion of the summary trial. [33] In our considered view, the Respondent was misconceived in contending that the High Court in exercising its supervisory jurisdiction can in law make that finding at this supervisory stage about proceedings midway in the court below under S.35 of the CJA 1964 which provides for review “…at any stage…” of proceedings in the Magistrate’s Court. Such review would not extend to making findings of fact within the purview of the trial Court S/N jvLpapH4N0iqO167tnUYEw [34] We would proceed to deliberate on the fundamental issue of whether the LJ had erred in law and fact in holding that the charge against the Resplendent in the MC under S.70(16), SBDA was bad in law. [35] Again, we are convinced by the Appellant’s proposition that the determination by the LJ as above in the exercise of the HC’s supervisory jurisdiction was premature and pre-empted the trial Magistrate from making his findings on the core issues pertaining to the sustainability of the charge. As the trial is ongoing, if the charge is in fact bad in law and groundless, it was open to the Respondent, as any other person charged facing a summary trial, to invoke S.173(g) of the CPC to be discharged of the charge on the ground of the charge being groundless. Any party dissatisfied with the decision of the Magistrate would be at liberty to bring an appeal to the HC at the appropriate stage instead of obstructing the trial from proceeding. [36] We are, additionally inclined to uphold the Appellant’s contention that the LJ had importantly failed to appreciate that she was exercising her supervisory powers under the High Court’s original civil jurisdiction and not its criminal jurisdiction in accordance with the CPC. Hence, the LJ had fallen into an error of principle when she came to a decision that the said charge rightly brought before the MC was bad in law. There was no question that the charge was within the jurisdiction of the MC provided for under the Subordinate Courts Act, 1948. [37] In our judgment, the LJ had acted beyond the HC’s Civil jurisdiction when she granted the orders sought which are akin to a declaration against a pending proceeding in a criminal court, albeit in a court subordinate to the HC. S/N jvLpapH4N0iqO167tnUYEw [38] We would further deliberate on an important point raised by the Appellant as regards the reliefs sought by the Respondent at the HC wherein the reliefs were in the nature of a declaration affecting pending criminal proceedings. Reliance was placed on the judgment of the Court of Appeal [‘COA’] in Datin Seri Rosmah Mansor v Public Prosecutor [2022] 1 LNS 425 which dealt with the powers of the High Court exercising civil jurisdiction to grant declaratory orders in respect on ongoing criminal proceedings brought by the Public Prosecutor for charges lawfully instituted by him. The judgment insofar as relevant to the issue at hand states in precise terms as follows: “[40] Learned Senior DPP drew a distinction between the civil jurisdiction of the High Court and its criminal jurisdiction. In support of his contention, learned Senior DPP cited the judgment of Tun Salleh Abas, LP in the Supreme Court case of Government of Malaysia v. Lim Kit Siang [1988] 2 MLJ 12, wherein it was contended that there is a separation of the system of criminal justice from that of the civil justice system. [39] Her Ladyship, Tengku Maimun, JCA (now CJ) who delivered the decision in the case Uthayakumar a/l Ponnusamy v YAB Dato’ Sri Najib bin Tun Razak Perdana Menteri Malaysia & Ors [2017] 1 MLJ 235 stated at page 246: “[17] Further, it must be kept in mind that the application was filed as a miscellaneous criminal application and that the law governing criminal procedure is the CPC. As such, the applicant must conform to the provisions of the CPC in making the application, that is to say, the reliefs prayed for must fall S/N jvLpapH4N0iqO167tnUYEw within the matters allowed under the CPC. However, we found nothing in the CPC to support the application for the above reliefs. [18] At this juncture, it is pertinent to highlight that the applicant was seeking for the reliefs of mandamus and declaration which reliefs are provided for under the Specific Relief Act 1950 (SRA). SRA pertains essentially to reliefs and remedies for civil action. And insofar as civil action is concerned, the definition in section 3 of the CJA reads: “a civil proceeding commenced by writ or in such other manner as is prescribed by rules of court, but does not include a criminal proceeding;" while subsection 21(1) of the GPA provides that: “Civil proceedings by or against the Federal Government shall be instituted by or against, as the case may be, the Government of Malaysia.” [40] Essentially, the emphasis was on the distinction between the civil and criminal jurisdictions of the High Court, particularly where orders are sought in the civil High Court over proceedings instituted in another Court exercising criminal jurisdiction. It clearly applies to the instant case where the declaratory order sought by the Respondent encroaches into the realm of criminal law as evidenced by the charge that the Respondent was facing in the Magistrate’s Court. S/N jvLpapH4N0iqO167tnUYEw [41] In Datin Seri Rosmah Mansor (supra) the Court adopted the Gouriet principle as follows: “It is unacceptable that criminal law should be enforced by means of civil proceedings for a declaration when the court's power to grant that remedy is only at the discretion of the court. Jurisdiction of a criminal court is fixed and certain. The standard of proof in a criminal case is different from that required in a civil case and moreover the Attorney-General is the guardian of public interest and as the Public Prosecutor, he, not the court, is in control of all prosecutions. How can a prosecution of this nature be done behind his back? These are some of the most serious objections to the exercise by a civil court of its discretionary power relating to declaratory and injunctive remedies. Our system requires the public to trust the impartiality and fair-mindedness of the Attorney-General. If he fails in his duty to exhibit this sense of fairness and to protect public interest of which he is the guardian, the matter can be raised in Parliament or elsewhere.” [42] To our minds, it was correctly contended by the Appellant that the LJ had clearly erred in law to decide in a civil action the validity of a criminal charge that had yet to be determined by a Magistrate’s Court exercising criminal jurisdiction. The declaratory order sought in the High Court plainly pertained to criminal law and the High Court in the exercise of its civil jurisdiction was clearly not vested with powers to grant the said order. S/N jvLpapH4N0iqO167tnUYEw CONCLUSION [43] For the foregoing reasons, we upheld the Appellant’s contention that the LJ had plainly erred in principle and fact in her decision to allow the Respondent’s Judicial Review Application for a declaration and ancillary orders prayed for against the Respondent. In essence, it had the effect of preventing the determination of a criminal trial of the Magistrate’s Court which proceeded in accordance with law and the procedure laid down in the CPC. The prosecution had been denied its right to adduce all its evidence for the consideration, evaluation and determination or findings by the trial Court on the charges against the Respondent. [44] Having heard the appeal and considered the rival contentions of the parties, we arrived at our unanimous decision supported by brief reasons as follows: We find merits in this appeal. The issue before us is one of jurisdiction of the Civil High Court in making declarations affecting the conduct of a prosecution in the Magistrate’s Court for an offence under the Street Drainage and Building Act 1974 (‘SDBA’). The prosecution was commenced with the consent of the PP and which issue had been determined in the High Court in a previous action and the order remains. The criminal proceedings are before the Magistrate’s Court exercising its criminal jurisdiction. If, as in this case, the Respondent is aggrieved with the preference of a charge against S/N jvLpapH4N0iqO167tnUYEw him, he should seek the appropriate remedy at the trial court as allowed under the CPC. He cannot mount a challenge against a criminal charge by invoking the civil jurisdiction of the High Court as was held in Rosmah v PP, a decision of the Court of Appeal. We see no good reason not to follow that decision. Therefore, we allow the appeal and set aside the decision and order of the HC. We exercise our discretion and make each party bear their own costs. Cross-appeal by the Respondent is also correspondingly dismissed in the light of our decision on the appeal with no order as to costs. Dated: 17 October 2023 - sgd - GUNALAN A/L MUNIANDY Judge Court of Appeal Putrajaya S/N jvLpapH4N0iqO167tnUYEw COUNSEL FOR THE APPELLANT: Mohd Azlan bin Mashod (Together with Siti Hadijah binti Ahmad and Nabila binti Sulaiman) [Messrs Azlan Hadijah & Associates] COUNSEL FOR THE RESPONDENT: Bonifac Lobo A/L Robert V Lobo [Messrs Lobo & Associates] S/N jvLpapH4N0iqO167tnUYEw