Majlis Bandaraya Pulau Pinang v Datin Noorzaina Binti Mat Zain (P-02(A)-2137-10-2017)

1.

MARITIME WATERFRONT SUITES SDN BHD … RESPONDENTS (Company No. 1000533-W) [In the Matter of the High Court of Malaya at Penang Judicial Review Application No. PA-25-20-06/2016 In the matter of an application for judicial review by Datin Noorzaina Binti Mat Zain and Maritime Waterfront Suites Sdn Bhd; And In the matter of Temporary Permit for Lodging House (Hotel) dated 1.11.2015 with Serial No. A00984; And 2 In the matter of the decision of Municipal Council of Penang dated 22.4.2016 that revoked Temporary Permit for Lodging House (Hotel) dated 1/11/2015 with Serial No. A00984; And In the matter of paragraph 1 of the Courts of Judicature Act 1964; And In the matter of Order 53 Rules of Court 2012 Between

Datin Noorzaina Binti Mat Zain

Maritime Waterfront Suites Sdn Bhd … Applicants (Company No. 1000533-W) And Majlis Bandaraya Pulau Pinang … Respondent] CORAM: TENGKU MAIMUN BINTI TUAN MAT, JCA MARY LIM THIAM SUAN, JCA HASNAH BINTI DATO’ MOHAMMED HASHIM, JCA 3 JUDGMENT OF THE COURT [1] The High Court granted the respondents’ application for judicial review in respect of the appellant’s decision to revoke the respondents’ permit to run a lodging house. On appeal, we unanimously affirmed that part of the decision but set aside the order that the appellant was to pay general damages and constitutional damages to the respondents. The award of damages was to be assessed by the Senior Assistant Registrar. These are our reasons. Factual background [2] At the end of 2013, the Government of the State of Penang decided to implement what is known as the “Local Government Collection of Fees Policy”. The object of this policy, inter alia, was to collect fees from both licensed and unlicensed hotels in the State, and to control such hotels. Thus, it was also decided that all existing hotels that had been operating without the requisite licences under the relevant laws, would be given a moratorium, valid for the period from March 2014 to 30.9.2014. [3] Apparently, there were these hotels in the State of Penang that had been in operation but were actually unlicensed; substantially because of the failure to obtain the necessary planning permission, 4 change or conversion in land use, approval of building plans, zoning or rezoning and a whole host of other reasons, the details of which are not relevant for this appeal. Under this original moratorium, temporary permits would be issued by the relevant local authority and during this interim period, the unlicensed operators were required to get their “house in order”, that is, to obtain the necessary approvals, permissions, and apply for permanent hotel licences. [4] According to the appellant, the response from the hotel operators was not encouraging. So, the State Government, through the State Committee on the Moratorium Policy on Hotels without Licence decided to amend and vary that original moratorium. It decided to now grant, subject to conditions, temporary hotel permits to such hotels, for a period of one year. This amended and varied Moratorium Policy was valid and implemented from 1.11.2014 to 31.10.2015. [5] This amended and varied Moratorium Policy was subsequently extended for another year, with conditions. A statement to that effect was issued on 2.10.2015 by the State Government, through the Executive Councilor in charge of Local Government, Traffic Management and Flood Mitigation. [6] The 2nd respondent was one such operator. Previously known as “Autumn Star Sdn Bhd”, it is the owner and operator of a lodging house (hotel) called “Maritime Waterfront Suites”. This hotel, occupies 60 units within Block B of a building known as “The Maritime”. The 1st respondent is one of its directors. The developer of The Maritime or “The Maritime Piazza”, as the whole development was called, was 5 Jelutong Development Sdn Bhd. The appellant is the local authority, as defined under the Local Government Act 1976 [Act 171], for the city of Penang, where The Maritime is located. The respondents decided to take advantage of the amended and varied Moratorium Policy. On 1.11.2015, it was granted a Temporary Permit to operate the hotel from 1.11.2014 to 31.10.2016. [7] On 22.4.2016, that temporary permit was revoked with immediate effect. According to the letter conveying the appellant’s decision, it was because the landowner, Jelutong Development Sdn Bhd’s application for a change of use of the building from ‘Commercial Offices’ to ‘Commercial Hotel’ had been rejected on that same date. [8] The respondents challenged that revocation by way of an application for judicial review and seeking the following primary reliefs:

(a) an order for certiorari that the appellant’s decision on 22.04.2016 to revoke the Temporary Lodging House Permit dated 1.11.2015 with Serial No. A00984 be quashed and/or set aside;

(b) an order of mandamus that the appellant is required to reinstate the Temporary Lodging House Permit dated 1.11.2015 with Serial No. A00984;

(c) damage and ‘Constitutional Compensation’ to be assessed by the Honourable Court and to be paid by the appellant to the respondents pursuant to the said Decision. 6 [9] The application for the order for mandamus was abandoned as the licence in question had expired by the time the matter came up for disposal before the High Court. Three intervenors, owners of some affected units who were allowed to intervene subsequently withdrew their participation in the proceedings. [10] The respondents complained that the revocation of the temporary permit had occasioned a serious injustice to them as it was made in breach of the rules of natural justice. The respondents further complained that the revocation was unfair and an abuse of discretion or power, that the appellant’s decision was disproportionate, irrational, improper, unreasonable and unconscionable for the following reasons: i. they were not given an opportunity to be heard prior to the making of the impugned decision; ii. the appellant had taken into account irrelevant considerations including the ground that Jelutong Development Sdn Bhd’s application for change of use of land from “Commercial Offices” to “Commercial Hotel” was rejected on 19.4.2016; iii. there was a legitimate expectation that the temporary permit was never subject to the condition that Jelutong Development Sdn Bhd’s application must be approved during the validity of the temporary permit issued to the respondents. 7 [11] In opposing the application, the appellant maintained that the temporary hotel permit granted to the respondents was temporary and a privilege; and, that it was not a right available under Act 171 or the Federal Constitution. Consequently, its revocation did not impinge on any rights, be it under Act 171 or the Federal Constitution. The appellant further argued that the temporary hotel permit that was issued to the respondents did not fall under the Moratorium Policy, but pursuant to a decision of the State Committee on the Moratorium Policy made on 27.10.2015. The learned Judge was thus said to have fallen into error in his considerations. [12] This was how the appellant pitched its submissions. As a local authority, it was empowered under Act 171 and the Street, Drainage & Building Act 1974 [Act 133], to regulate and licence lodging houses and hotels. For that purpose, it has wide powers including the power to impose conditions and restrictions as it thinks fit and without assigning any reasons therefor [sections 107(2) and (3) of Act 171]. [13] In exercise of its powers under section 9(1) of Act 171 to give directions of a general character to the local authority, which includes the appellant, the State Authority, that is the State Government of Penang had, in 2014, implemented a Moratorium Policy on hotels without licence. [14] Under this Moratorium Policy, the State Government will issue temporary permits for unlicensed hotels. This allowed the Government to control their operation “without giving a negative impact to the tourism industry in Penang” whilst allowing the operators, time to submit the 8 necessary applications for planning, change of use, conversion, building plan or rezoning, wherever applicable; as well as apply for permanent hotel licences. [15] The response to the Policy was said to be “not encouraging”. At a meeting on 26.2.2015, the State Planning Committee [SPC] decided to waive the requirement of obtaining planning permission, requiring instead only a building plan to be submitted. The State Government then decided that the Policy would be implemented from 1.11.2014 to 31.10.2015. [16] According to learned counsel for the appellant, there were 191 hotels registered under the Moratorium Policy. Only these 191 registered operators forming Category or List 1 would be issued temporary hotel permits for a period of one year and would benefit from the SPC’s decision. The respondent was said to be not one of the 191 operators, or operators in Category or List 1. [17] On 2.10.2015, the Executive Councillor of the State Government in charge of Local Government, Traffic Management and Flood Mitigation issued a statement on the Moratorium Policy to the effect that subject to conditions, the Policy will be extended for another year. According to the appellant, this was meant for the hotel operators who were registered but who had yet to submit their building plans to the appellant after the expiry of the moratorium period on 31.10.2015. These operators formed Category Two or List 2, and the temporary hotel permits of these operators were extended for another term of one year. 9 The appellant submitted that the respondents were also not in this category. [18] On 27.10.2015, the State Committee on the Moratorium Policy made several announcements. First, it decided to extend the issue of temporary hotel permits for another year, to 31.10.2016. According to the appellant, this was because there were still many operators who had yet to submit their building plans to the appellant. [19] Second, it was also decided that any new operator who was not in Category or List 1 will be issued a temporary hotel permit on condition that the operator submits an application for planning permission or rezoning. But, this would only be for applications made before 1.11.2015. A payment of RM2,400.00 for the period 1.11.2014 to 31.10.2015 and another payment of RM2,400.00 for the period 1.11.2015 to 31.10.2016, will be imposed. [20] Third, it was decided that enforcement action against lodging houses or hotels would be taken according to the following priority: Phase 1 New lodging house/hotel without licence Phase 2 Lodging house/hotel with no temporary permit and annual temporary permit payment not paid Phase 3 Lodging house/hotel with annual temporary permit but has not submitted application for building plans to the appellant, action to be taken after the annual permit had expired 10 Phase 4 Lodging house/hotel where the application for building plans had been rejected by the appellant, action will be taken when the annual permit had lapsed [21] It was the submission of the appellant that the same State Committee had further decided on 27.10.2015, that the proposed enforcement action for Phase 4 was not applicable for cases or hotel activities which were not listed under the Moratorium Policy. It was the appellant’s understanding that “where the planning permission had been rejected by the appellant, the temporary hotel permit would be revoked forthwith and all hotel activity should cease forthwith. No special consideration will be given to hotels or hotel activities which were not listed under the Moratorium Policy.” [22] In short, the benefit was only intended for those 191 operators who were already registered under the Moratorium Policy. [23] The appellant further relied on the dialogues and briefings that it had organized from time to time and before the Moratorium Policy was launched, to show that the workings and basis of the Policy were explained. The appellant claimed that it had also displayed two notices at its Licensing Department on 27.10.2015, the purport being to inform of the different operations of the Policy. [24] The respondents applied for a temporary hotel permit on 30.10.2015. On 1.11.2014, a temporary hotel permit valid for one year from 1.11.2015 to 31.10.2016 was issued subject to 12 conditions. Condition 11 required the respondents to submit and obtain the 11 necessary planning permission. This meant that where the permission is not forthcoming or is refused, the appellant claimed that it was entitled to terminate the temporary permit as the basis for its grant “does not exist”. The planning permission was refused on 19.4.2016 and conveyed to the respondents vide letter dated 21.4.2016. On 22.4.2016, the temporary permit was revoked. [25] The appellant added that prior to applying for a temporary hotel permit, its Licensing Department had carried out investigations on 2.6.2015 and found the respondents operating without a licence. A subsequent investigation on 8.8.2015 showed similar activity. Two separate notices of violations of the Municipal Council of Penang Island (Trades, Business and Industries) By-Laws 1991, were issued to the 2nd respondent. The appellant also received inquiries from lawyers acting for owners of various units of Block B where the 2nd respondent’s hotel was located, seeking confirmation that the hotel was licensed to carry out hotel operations. This subsequently culminated in a civil action brought by these owners against the respondents. Decision of the High Court [26] The application was allowed. The High Court agreed with the respondents on all fronts. The High Court was inter alia satisfied that the temporary hotel permit, referred to as the “temporary licence” by the learned Judge, was not issued to the respondents on the condition or understanding that Jelutong Development Sdn Bhd successfully applied for a change of use of the land. The learned Judge further found that 12 the success or otherwise of an application for change of use of land was only relevant or was “a condition only for a permanent licence application by the applicants after the expiry of the temporary licence on 31.10.2016 and that it should not be a relevant consideration for the validity of an already granted and issued temporary licence.” All that was required was that the respondents applied for a change of use of the land. [27] According to the learned Judge, it was not in dispute that when the temporary licence was issued, the category of use of the land upon which the respondents’ hotel was built had yet to be changed. Consequently, when the temporary licence was terminated with 6 months’ validity still to run, it was “definitely premature” and an “unjustifiable act” as there was a legitimate expectation that the licence will run its course. The learned Judge noted that the 17 technical departments of the State Government had not objected to the application, yet, there was the letter of rejection “without any fathomable reason”. [28] The learned Judge also found that the respondents had not been accorded the right to be heard before the temporary licence was terminated, rendering the appellant in breach of the rules of natural justice. Specifically, the learned Judge found that the media statement issued on 2.10.2015 by the Executive Councillor in charge of Local Government, Traffic Management and Flood Mitigation, clearly stated “that hotels which are on temporary licence but fails to obtain a change of use would not face any action until their temporary licence expires.” It was the view of the learned Judge that even though the change of use 13 was rejected, “the validity period of the temporary licence should still be allowed to run its course until its natural expiry of the fixed term period on 31.10.2016. There was no necessity for the abrupt termination by the respondent since nowhere it is stated that a failure to obtain a change of use would result in an immediate termination of the temporary licence already granted to the applicants. By using the failure to obtain a change of use as a reason to terminate the temporary licence renders the action of the respondent as taking into account an irrelevant consideration that was never imposed as a condition when the temporary licence was granted in the first place.” [29] Aside from granting the orders sought, the learned Judge ordered that damages and constitutional damages be assessed by the learned Senior Assistant Registrar. Our decision [30] This appeal illustrates what can happen when policy decisions of public authorities wearing multiple hats of power and discretion are not thought through thoroughly before such decisions are made and issued out to the general public. The lack of clarity and a non-holistic approach creates more problems than providing solutions, especially when it comes to the implementation and enforcement aspects of such decisions. Both the civil servants and public officers involved and the community to which the public authority serves must not be confused as to the intent, ambit and operation of the policy; more so where the public 14 authority collects revenue from the community who rely on such decisions. [31] Central to the appellant’s case is the Moratorium Policy which was well intended, made in recognition of a stalemate situation that the State faced at the material time. This is evident from the affidavit-in-replies and submissions of the appellant. It seemed that there was an increasing number of unlicensed hotels or lodging houses in the State. Licensing was the mechanism by which the operations of such lodging houses could be controlled, regulated or supervised. [32] In our view, the narrative background to and of the Moratorium Policy cannot supplant the fact that the arrangement that was put in place by the State Government and implemented by the appellant, is extra-legal. We have no issue with the submission of the appellant that the Moratorium Policy was put in place by way of directions issued by the State Authority pursuant to section 9 of Act 171:

(1) A local authority shall have the power to do all or any of the following things, namely:

(a) …

(b) to establish, erect, maintain, let, control and manage markets and market buildings, lodging houses, houses, rooms or buildings kept for public refreshment, shops, and stands, to control the occupation and the use thereof; [emphasis added] [35] Towards that end, section 102 of Act 171 provides the appellant a general power to make By-Laws in respect of all such matters as are necessary or desirable for the maintenance of the health, safety and well-being of the inhabitants or for the good order and government of the local authority area. Specifically, under section 102(s), the appellant is empowered to make By-Laws in respect of all or any of the following purposes:

(s) to control and supervise, by registration, licensing or otherwise, including in proper cases by prohibition, a trade, business or industry which is of an obnoxious nature or which could be a source of nuisance to the public or a class of the public; [emphasis added] 16 [36] The Municipal Council of Penang Island (Trades, Business and Industries) By-Laws 1991 are the relevant By-Laws as boarding houses and hotels fall within the list of trades and businesses in the First Schedule to the By-Laws. [37] Under section 107 of Act 171, the local authority may prescribe fees to be paid for such licences or permits that it issues, and impose such conditions and restrictions for such licences or permits as the local authority thinks fit. While the licences and permits that are issued cannot be for a period of more than three years, such licences and permits are revocable by the local authority at any time without assigning any reason for that revocation: Licences

(1) A local authority in the granting of any licence or permit may prescribe the fees for such licence or permit and the charges for the inspection or supervision of any trade, occupation or premises in respect of which the licence is granted.

1.11.2014 to 31.10.2016. This receipt, too, makes no mention that it is pursuant to the Moratorium Policy or to the statement of the SPC. [44] Twelve terms and conditions of the temporary hotel permit were imposed by the appellant, namely:

Memasang 2 unit alat pemadam api (9 kg) jenis serbuk kering (dry powder fire extinguisher) dalam jarak setiap 15 meter laluan bangunan di setiap tingkat bangunan hotel.

Memasang loceng kebakaran (fire alarm) jenis manual pecah kaca (break glass) atau jenis automatik pengesan haba/asap bagi setiap satu unit dalam jarak 4.5 meter laluan bangunan dan juga di dalam setiap bilik hotel.

Memasang papan tanda keluar “KELUAR” jenis berlampu di setiap pintu akses utama bangunan hotel.

Memasang pelekat tunjuk arah keluar dari bangunan hotel.

Memasang lampu kecemasan (emergency light) yang mencukupi di tempat-tempat strategik untuk laluan kecemasan seperti laluan utama, akses tangga dan pintu masuk/keluar.

Semua pintu akses utama untuk laluan kecemasan tidak dibenarkan sama sekali dikunci dengan mangga (padlock).

Memastikan semua akses utama untuk lalun kecemasan bebas dari sebarang halangan.

Memasang pelekat “DILARANG MEROKOK” yang mencukupi di tempat-tempt strategik termasuk semua bilik hotel.

Menyediakan peti rawatan kecemasan (first aid Kit) yang sempurna dan mencukupi.

Menjaga dan menyelenggara premis hotel supaya sentiasa bersih dan bebas dari sebarang serangga-serangga pembawa penyakit berjangkit.

Mengambil inisiatif untuk mengemukakan permohonan dan mendapat kelulusan merancang bagi tukar guna bangunan 20 kepada premis hotel dan mematuhi syarat-syaratnya dalam tempoh setahun (01 November 2014 hingga 30 Oktober 2015).

Mengutip fi kerajaan tempatan daripada penghuni hotel dan membayarnya kepada Majlis mengikut jadual pembayaran yang telah ditetapkan. [emphasis added] [45] As can be seen, eleven of the twelve conditions pertain to the regular operation of a lodging house. Condition 11 is the critical condition in contention. The appellant’s argument is that it was the respondents’ obligation to ensure that its application for planning permission and for change of use was successful. And, so when the planning permission was rejected on 19.4.2016 and conveyed to the respondents vide letter dated 22.4.2016, the appellant was entitled to revoke the temporary hotel permit that it had itself issued on 2.11.2015. [46] We disagree. A reading of condition 11 does not yield up that reading. That condition reads: Mengambil inisiatif untuk mengemukakan permohonan dan mendapat kelulusan merancang bagi tukar guna bangunan kepada premis hotel dan mematuhi syarat-syaratnya dalam tempoh setahun (01 November 2014 hingga 30 Oktober 2015). [emphasis added] [47] All that is required of the respondents is to, within one year,

1.11.2014 to 30.10.2015, “mengemukakan permohonan dan mendapat kelulusan merancang bagi tukar guna bangunan kepada premis hotel 21 dan mematuhi syarat-syaratnya”. This means that the respondents are to take the initiative to apply and obtain planning approval to change the use of the building to hotel premises and to comply with its conditions. These words do not mean or infer that the respondent is to apply and be successfully in its application for planning permission. The obligation of the respondents is in respect of having or taking the initiative of or taking steps towards applying and obtaining the planning approval. In fact, we are prepared to go as far as saying that the word “mendapat” or obtain here merely serves to emphasize the requirement of applying for the necessary approval. [48] That obligation, however, cannot extend to the meaning suggested by the appellant, as that it quite outside the remit of the respondents. Since the respondents have applied for the planning approval, albeit through the developer, Jelutong Development Sdn Bhd, condition 11 has been satisfied. Jelutong Development Sdn Bhd’s application was made on 13.8.2015 and it was for a change of building use from ‘commercial’ to ‘hotel’. That application was made even before the Moratorium Policy was amended in October 2015. There is thus, no breach upon which the appellant may claim any basis for revoking the temporary hotel permit that it had issued on 2.11.2015. [49] In any event, the appellant’s letter of 22.4.2016 to the respondents must be read with its letter dated 21.4.2016 sent to Jelutong Development Sdn Bhd wherein the appellant advised the developers not only of its rejection of the application for planning approval, but that it had a right to appeal against that rejection: 22

3.

(i) Rumah Tumpangan/Hotel: RM2,400 setahun

(i) Pengecualian Permohonan Kebenaran Merancang

(i) Fasa 1 Rumah Tumpangan/Hotel yang baru (Tidak disenaraikan di bawah program pemutihan hotel)

It was used in the same sense but unsuccessfully in, for instance, R v Board of Inland Revenue, ex p MFK Underwriting Agencies Ltd [1990] 1 All ER 91; [1990] 1 WLR 1545, and [1991] 3 Admin LR 265. These various authorities show that the claimant’s right will only be found established when there is a clear and unambiguous representation upon which it was reasonable for him to rely. Then the administrator or other public body will be held bound in fairness by the representation made unless only its promise or undertaking as to how its power would be exercised is inconsistent with the statutory duties imposed upon it. The doctrine employed in this sense is akin to an estoppel in so far as the public body’s representation is communicated by way of a stated policy, this type of legitimate expectation falls into two distinct sub-categories: cases in which the authority are held entitled to change their policy even so as to affect the claimant, and those in which they are not. An illustration of the former is R v Torbay BC, ex p Cleasby [1991] COD 142; of the latter, ex p Khan. [5] In R v North and East Devon Health Authority, ex parte Coughlan [2001] QB 213, Lord Woolf CJ recognized that the doctrine of legitimate expectation may entitle persons affected to a substantive benefit. And, Lord Hoffman when delivering his speech in R (Reprotech (Pebsham) Ltd) v East Sussex CC [2002] UKHL 8, approved Coughlan. [emphasis added] [60] Thus, the respondents have rightly, a legitimate expectation that there will be observance of procedural fairness accorded to them, that 30 the appellant will act fairly by taking into consideration all relevant factors, after having taken up the appellant on its Moratorium Policy. We are clear in that the terms of the Policy apply to the respondents. Even if there was any ambiguity, as we can see from the terms of Phase 4 and the way the Policy was revisited and extended, in all fairness and in the justice of the case, it must be resolved in the respondents’ favour. Such doctrine is akin to the operation of estoppel, that while the Policy may be changed from time to time, insofar as this Policy was concerned, when it was changed, it was to extend to operators such as the respondents who have relied on them, paid the fees fixed by the appellant and issued the permit, which on the face of it, says what it says, that it is valid till 31.10.2016. [61] Absent any other offence or wrongdoing, the cancellation of the permit itself cannot be any basis for the appellant to say that the respondents by virtue of the appellant’s own act of revocation, is operating illegally. The cases cited by the appellant, The State Government of Sabah v Sipadan Dive Centre Sdn Bhd & Ors [2013] 2 MLJ 793 and Government of the State of Sarawak v Lah Anyie & Ors [2013] 6 CLJ 133, in fact, agree with these fundamental principles; however, the doctrine was inapplicable on their peculiar facts. [62] In this respect, we have one final observation to make. We are concerned with the argument of the appellant that because the temporary hotel permit has been revoked, and revoked by the appellant themselves, the respondents are now in breach of the relevant laws for operating a hotel, without a permit. Authorities charged with such extensive powers and duties as we see under Act 171, Act 172, Act 133 31 and By-Laws 1991, cannot invoke those powers to the detriment of the community to which it serves. More so, when the authorities have received payment for such permits. The facts and circumstances in this appeal, how the temporary hotel permits came to be issued and then revoked, reek of bad faith and wrongful use of those powers. These are clear and firm grounds for the invocation of the Court’s supervisory powers over such subordinate bodies, to grant the order of certiorari to quash the bad and wrongful decision made. Conclusion [63] For all these reasons, the High Court was right in exercising its discretionary powers in allowing the respondents’ application; the appellant’s decision was clearly unfair, unreasonable and irrational under the principles as laid down by Lord Diplock in the locus classicus of Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374; and followed in this country - see for instance the Court of Appeal decision in Ngiam Geok Mooi v Pacific World Destination East Sdn Bhd [2016] 6 CLJ 395, Abdul Ghani Che Mat v Pengerusi Suruhanjaya Pasukan Polis & Ors [2017] 3 CLJ 399. Such decision must thus be struck down. [64] The appellant’s authority under Act 171 and the other laws cited are never absolute; its exercise of powers and discretion are always subject to the scrutiny of the Court. Local authorities such as the appellant are public bodies charged with power, discretion coupled with duties and responsibilities. Any power conferred by statute will always have limits – see Pengarah Tanah dan Galian Wilayah Persekutuan v 32 Sri Lempah Enterprise Sdn Bhd [1978] 1 MLJ 135 where it was reminded that “it is a stringent requirement that a discretion should be exercised for a proper purpose, and that it should not be exercised unreasonably.” Where the Court finds the power wrongly exercised, it is our duty to intervene. [65] Learned counsel for the respondents had suggested that his clients’ case was akin to “swimming in bureaucracy”. That despite taking steps to comply with the conditions set by the appellant and checking off the lists of matters to be attended to, the respondents were nevertheless constantly plagued and beset with problems. Having examined the circumstances, we are inclined to agree; hence our opening remarks on the need for clarity when issuing such policies. Any ambiguity must be resolved in the respondents’ favour, especially where the respondents have been issued a two-year permit upon full payment of the amount stipulated by the appellant. [66] The High Court was therefore right in its exercise of discretion in granting the order of certiorari to quash the decision of the appellant dated 22.4.2016. We see thus, no merits in the appeal and the appeal in respect of this part of the decision is dismissed. [67] We note that the learned Judge had ordered that damages be assessed. In its application for judicial review, the respondents had sought damages/constitutional damages. The respondents were unable to provide any explanation on this relief. We are not prepared, even with the decision reached above, to affirm this part of the learned Judge’s decision. There was no basis for the grant of the order, especially since 33 the respondents remained in the building and continued its operations until the expiration of the temporary hotel permit in October 2016. Under such circumstances, that part of the learned Judge’s decision must be set aside, and we do so accordingly. Dated: 8th January 2019 (MARY LIM THIAM SUAN) Judge Court of Appeal Malaysia Counsel/Solicitors For the appellant: Karin Lim Ai Ching (Murgan a/l D Maniam and Cyrus Lim Kia Chun with him) Messrs Presgrave & Matthews No. 2, Lebuh Pantai 10300 Pulau Pinang For the respondents: Ong Yu Shin (Marcia Geraldine Lopez with him) Messrs The Chambers of Yu Shin Ong Unit 12A, Tingkat 12. Menara KWSP Jalan Sultan Ahmad Shah 10050 Pulau Pinang