Ng Chok Ling v Abdul Gaffar Khan Bin Amirullah (BA-23NCvC-58-11/2023)

This is an appeal by the defendant against the decision of this Court in allowing the plaintiff’s claim for trespass and the order to repair the damaged awning. B.

The plaintiff and the defendant are neighbours residing in the Tropicana Indah Resort Homes, Petaling Jaya.

The plaintiff is the registered owner of a property known as No. 47 Jalan PJU 3/12F, Tropicana Indah Resort Homes, while the defendant possesses a property at No. 26 Jalan PJU 3/12E. 06/08/2025 15:52:04

The defendant's property is located directly behind the plaintiff's property and is one floor above it.

The plaintiff’s claim against the defendant is for the following reliefs. a) An order requiring the defendant to demolish the wall and/or the illegal structure built on top of the original retaining wall; b) In the alternative to (a), an order for the defendant to strengthen the original retaining wall and appoint a certified engineer and/or professional (approved by the plaintiff) to certify the construction of the illegal structure; c) An order for the defendant to repair and/or replace the awning at the plaintiff’s property; d) Alternatively to paragraph (c), an order that the defendant bear all costs of repairing the awning incurred by the plaintiff; e) An order for the defendant to pay damages for trespass to the plaintiff; f) An order for the defendant to pay damages for the diminution in market value and the opportunity cost associated with the sale of the plaintiff’s property; g) General damages for trespass; h) Special damages for trespass; i) Interest at 5% per annum for (g) and (h), calculated from the date of the writ summons until the date of full settlement; j) Costs; k) Any other relief this Court deems fit and proper to grant. C.

In the case of Hong Yik Trading v Liziz Plantation Sdn Bhd [2017] 8 CLJ 481, the Federal Court makes findings on the burden of proof as follows – 12] It is settled law that the burden of proof rests throughout the trial on the party who asserts that the facts exist (s. of the Evidence Act 1950). Where a party on whom the burden of proof lies has discharged that burden, then the evidential burden shifts to the other party. However, if the party on whom the burden of proof lies fails to discharge it, the other party need not call any evidence. This is highlighted in the case of Selvaduray v. Chinniah [1939] CLJU 107; [1939] 1 LNS 107; [1939] 1 MLJ 253 where Terrell, Ag CJ stated: ... it is clear that the onus is on the plaintiff to prove his case. After the conclusion of the whole case, there must be some preponderance in his favour. It may be true that the plaintiff established a prima facie case, but at the conclusion of the trial, the learned Judge has found that the position was exactly even, i.e. that any preponderance in the plaintiff's favour had disappeared. That being the case, the plaintiff must necessarily fail, as he has not discharged the onus which is upon him. No doubt the defendant would equally have failed if he had been the claimant and had tried to establish, as a substantive part of his case, the alternative version which he tried to prove in answer to that of the plaintiff.

The standard of proof in civil actions has also been determined by the Federal Court in Inas Faiqah Mohd Helmi (A Child Suing Through Her Father And Next Friend; Mohd Helmi Abdul Aziz) v. Kerajaan Malaysia & Ors [2016] 2 CLJ 885 - [13] The standard of proof in civil cases is the legal standard to which a party is required to prove its case, namely on a balance of probabilities. In civil litigation, the question of the probability or improbability of an action occurring is an important consideration to be taken into account in deciding whether that particular event had actually taken place or not. In the case of Miller v. Minister of Pensions [1947] 2 All ER 372, Lord Denning said the following about the standard of proof in civil cases: The... [standard of proof]... is well settled. It must carry a reasonable degree of probability.... if the evidence is such that the tribunal can say: 'We think it more probable than not', the burden is discharged, but, if the probabilities are equal, it is not. D.

With regard to the defendant’s appeal, the relevant issues to be decided are as follows-i. Whether the defendant and/or the defendant’s contractor has trespassed and entered the plaintiff’s property while carrying out the renovation and/or construction works. ii. Whether the plaintiff has suffered damages and losses due to the construction of the wall by the defendant and/or the defendant’s contractor. iii. Whether the plaintiff is entitled to claim for the reliefs included general damages and special damages for trespass, damages for diminution of market value and opportunity cost for selling the plaintiff’s property as pleaded at paragraph 16 of the Statement of Claim. E.

Having reviewed the pleadings, the evidence presented by the witnesses, and the submissions from the respective counsel for both the plaintiff and defendant, the findings of this Court are as follows – Issue 1: Whether the defendant and/or the defendant’s contractor has trespassed and entered the plaintiff’s property when carrying out the renovation and/or the construction works.

The plaintiff seeks relief for special damages due to trespass. Parties agreed that the issue of trespass is limited to the trespass committed by the defendant’s workers on the plaintiff’s awning.

The plaintiff alleged that the defendant and/or his contractor trespassed onto the plaintiff’s property by climbing over the fence originally built on the retaining wall to install scaffolding for their workers and construction materials without the plaintiff's permission.

In support of the allegation of trespass, photographic evidence, as can be seen at pages 210-220 of Bundle C, was produced by the plaintiff during trial. The photographs show the defendant’s contractor and workers entering the plaintiff’s property while carrying out the renovation and construction works.

The defendant did not deny this allegation. Instead, the defendant admitted to the act of trespassing committed by his workers. His testimony during cross-examination was as follows – S: Bilakah scaffolding tanggalkan? SD1: On the spot masa dia complaint hari yang sama. Hari yang sama, bila dia complaint dengan Tropicana, on the spot saya clear and saya tak masuk lagi dalam tu. Cuma saya ada tempat yang 1 kaki itu, daripada 1 kaki itu saya buat.. … S: ms 227, ya. Siapakah orang ini? SD1: Pekerja saya S: Pekerja kamu. Setuju ke pekerja kamu itu berdiri di atas awning plaintif. SD1: Setuju S: Setuju. Muka surat 228. Setuju ke scaffolding itu didirikan di atas awning plaintif dalam kawasan rumah plaintif. SD1: Setuju S: Adakah pernah kamu beritahu plaintif ‘bolehkah pekerja saya masuk untuk buat kerja?’

The defendant is bound by his admission as provided under Section 18 of the Evidence Act 1950. Section 18 of the Evidence Act 1950 reads -

Admission by party to proceeding, his agent or person interested 1) Statements made by a party to the proceeding or by an agent to any such party whom the court regards under the circumstances of the case as expressly or impliedly authorized by him to make them are admissions. 2) Statements made by parties to suits, suing or sued in a representative character, are not admissions unless they were made while the party making them held that character. 3) Statements made by:

persons who have any proprietary or pecuniary interest in the subjectmatter of the proceeding, and who make the statement in their character of persons so interested; or

persons from whom the parties to the suit have derived their interest in the subject-matter of the suit, are admissions if they are made during the continuance of the interest of the persons making the statements.

In PP v Dato Seri Anwar Ibrahim (No.3) [1999] 2 CLJ 215, the Court has defined the word proceeding in subsection 18(1) of the Evidence Act and ruled as follows-Section 18(1) provides statements made by a party to the proceedings are admissions. The word "proceeding" in section 18(1) may be civil or criminal (Sarkar on Evidence (15th Ed) Vol 1 page 372)

Subsection 17(1) of the Evidence Act 1950, defines admission as follows –

Admission and confession defined

An admission is a statement, oral or documentary, which suggests any inference as to any fact in issue or relevant fact, and which is made by any of the persons and under the circumstances hereinafter mentioned.

The law regarding trespass is clear. In Terra Damansara Sdn Bhd v Nandex Development Sdn Bhd [2006] 6 MLJ 24, Justice Abdul Malik Ishak (as he then was) explained trespass in detail as follows- [10] The tort of trespass to land or what is known as trespass quare clausum fregit consists of three significant factors. Firstly, it is the act of entering upon land in the possession of another — here it would be the plaintiff as against the defendant who is the trespasser. Secondly, having entered upon such land the trespasser continues to remain on the land. Thirdly, the trespasser placing or projecting any object upon such land. It must be emphasised that in each case, the entry is without lawful justification (Barker v The Queen

153 CLR 338,356). [11] The personal entry into the land of another constitutes the most common form of trespass. That unlawful entry may be made by a person or an animal (League Against Cruel Sports v Scott (1986) QB 240). Even the slightest crossing of the boundary is sufficient to constitute trespass. There may be cases where physical contact with the plaintiff's property would constitute trespass just like the case of Gregory v Piper

9 B & C 591 where 'a single stone had been put against the wall it would have been sufficient'. Trespass would also occur when a surveillance device is affixed to the wall of the house (R v Khan [1994] 3 WLR 899 905). [12] Trespass to land is actionable per se without any proof of damage (Ashby v White (1703) 2 Ld. Raym 938). And liability is certainly strict. According to the case of Entick v Carrington (1765) 19 St Jr 1029 1066: 'Every invasion of property, be it so minute, is a trespass.' It is not the law that a man cannot be a trespasser unless he knows he is one (Conway v Wimpey & Co (No 2) [1951] 2 KB 266 273). If the entry is intentional, it is actionable even though that entry was made under a mistake or the defendant honestly believed that the land was his own or, like the present case, the land was unoccupied and unalienated or that the defendant believed that he had a right of entry on the land. In Morris v Beardmore [1981] AC 446, the House of Lords re-asserted the fundamental right of privacy of the home.

I agree with the learned counsel for the plaintiff that the elements outlined in the case of Terra Damansara Sdn Bhd v Nandex Development Sdn Bhd (supra) have been satisfied. The fact that the defendants’ contractor passed through the plaintiff’s property for a while and that nobody occupied the plaintiff’s property does not justify the actions of the defendant or his contractor in trespassing onto the plaintiff’s property.

Given the defendant's admission, this Court accepts the plaintiff’s claim of trespass in accordance with section 18(1) of the Evidence Act

Therefore, this Court is satisfied that the plaintiff has met his burden of proof under subsection 101(1) of the Evidence Act 1950 in establishing the Defendant’s liability for trespass.

In deciding the damages for trespass, I consider the defendant’s testimony that workers might have passed through the plaintiff’s property compound while installing the temporary scaffolding. The defendant also states that he had instructed his workers to remove the scaffolding upon receiving a complaint from the Management Company. Therefore, the general damages of RM50,000.00 are reasonable to be awarded to the plaintiff. Damaged awning

The plaintiff disagreed with the assertion made by the defendant’s counsel that the awning is merely dirty and that there is no damage issue with the awning.

This Court refers to paragraph 13 (b) of the Statement of Claim, where it was pleaded as follows: – kerosakan awning yang dipasang di tanah plaintif.

The effects included discolouration and stains on the awning. However, the plaintiff could not provide this Court with a photograph of the alleged dirty condition of the awning, nor of its state prior to the encroachment.

Given the evidence adduced during the trial, this Court believes that the defendant should liable to the plaintiff’s claim regarding the damaged awning. However, this Court refuses to award special damages as the plaintiff did not present sufficient proof for them. F.

Having examined the pleadings, documents and having heard the witnesses' testimony as well as the submissions from the learned counsels for both parties, on the balance of probabilities, I allowed part of the plaintiff’s claim as follows – a) General damages for trespass amounting to RM50,000.00; b) The defendant is ordered to repair the damaged awning at the rear section of Unit No. 47 Jalan PJU 3/12F, Tropicana Indah Resort Homes, 47410 Petaling Jaya, within one month from the date of the sealed order served on the defendant; c) Interest at the rate of 5% per annum on RM50,000.00, calculated from the date of the Writ Summon until the date of full settlement; and d) Each party shall bear its own costs. Dated: 6th August 2025. Signed ...................................................... HAZIZAH KASSIM Judicial Commissioner High Court of Malaya (NCvC10) at Shah Alam, Selangor

For the Plaintiff : Caryn Shua Messrs Richard Tee & Chin (Federal Territory of Kuala Lumpur)

For the Defendant : Datuk Adnan Seman @ Abdullah Messrs Adnan Sharida & Associates (Bandar Baru Bangi, Selangor)