Ramli Bin Wan v Majlis Bandaraya Shah Alam (BA-12BNCVC-4-01/2021)

The proceedings before me arise from two appeals which have been directed to be heard together as the factual matrix giving rise to the appeals are the same.

The suits in the Sessions Court filed by the Plaintiffs are BA-A52NCVC-125-07/2019 filed by Nur Mazlina binti Abdullah (“Mazlina”) and BA-A52NCVC-115-07/2019 filed by Ramli bin Iwan (“Ramli”).

The appeals here emanate from the decision of the learned Sessions Court Judge who, after a full trial, dismissed the suits filed by Mazlina and Ramli, but allowed the counterclaim of the Respondent against Mazlina. For ease of reference, the parties will be hereafter referred to the Plaintiffs and Defendant. Background facts

The suit filed by the Plaintiffs arose from the following facts. Ramli and Mazlina are husband and wife, both of whom owned a Proton Satria and a Honda Accord bearing registration number JED 2820 and LA 9678 respectively. At the material time, these cars were parked at a public place at Jalan Cincin 11/6, Seksyen 11, Shah Alam. 4

The Defendant is a body established under the Local Government Act 1976, and charged with carrying out functions under the said act.

On 19.8.2017, in the course of conducting a routine inspection at Seksyen 11, Shah Alam for derelict cars, the Defendant’s enforcement officers came across Ramli’s and Mazlina’s cars which were parked at a public parking lot. They found the cars to be derelict cars and issued two notices requiring both the Plaintiffs to remove the cars within 7 days from the date of notice.

The Plaintiffs did not comply with the notice and on 23.1.2018, the Defendant’s officers found the cars had not been moved from the parking lot. They then issued two compound notices and placed the notices on the windshield of the cars.

On 26.4.2018, the cars were still found to be parked at the public parking lot, in spite of the notice and compound issued earlier. The Defendants then caused the Proton Satria to be towed and kept at the Defendant’s Depoh Tunda MBSA at Seksyen U16. The Honda Accord was however, not towed upon appeal by Ramli.

In July 2018, Mazlina received a letter from the Defendant, stating that her car was being detained pursuant to section 46(1)(e) read together with section 46(3)(a) of the Street, Drainage and Building Act, 1974 [“Act 133”].

Both Mazlina and Ramli received offers to reduce the compounds issued on 1.5.2018 and 1.10.2018. Mazlina paid the compound on 5

5.10.2018, and no dispute was raised by her in respect of the compound notice. Ramli however, did not accept the compound offer by the Defendant.

Both the Plaintiffs then filed separate suits in the Sessions Court. The principal reliefs sought in the court below was for a declaration that both the cars were not derelict vehicles within the meaning of section 46(1)(e) of Act 133. The Plaintiffs also challenged the issuance of the compounds and offer to reduce compounds, and sought for a declaration that it was defective and bad in law.

Mazlina’s suit however included additional reliefs as her car was towed and stored at the premises of the Defendant. Her suit included the cause of action for conversion to which she sought for an order that her car be returned to her. Both Plaintiffs also sought for damages as a consequence of the Defendant’s actions.

The Defendant counterclaimed against Mazlina for towing charges of RM 300 and storage charges of her car at RM 10 per day.

At the conclusion of the trial, the Sessions Court dismissed both the Plaintiffs’ suits. The counterclaim of the Defendant against Mazlina was allowed for the amount of RM 8,000. In addition, costs of RM 10,000 was ordered to be paid by the Plaintiffs to the Defendant in respect of both the suits filed. 6 The grounds of appeal by the Plaintiffs

The main grounds of appeal, stated in the Memorandum of Appeal essentially turns on the following questions:-

whether the Plaintiffs’ cars are derelict vehicles within the meaning of section 46(1)(a) read together with section 46(3)(a) of Act 133;

(ii) whether the act of the Defendant in towing and detaining Mazlina’s car was done in accordance with the law;

(iii) whether the issuance of the warning, compound notices and offer to reduce compounds for both cars by the Defendant was done correctly; and

(iv) whether the Defendant is entitled to the counterclaim of RM 8,000 as claimed and allowed by the Sessions Court Judge.

The Plaintiff’s claim for damages in the form of aggravated and exemplary damages are merely consequential and to be determined only upon the Plaintiffs succeeding on the principal issues stated above. Analysis and decision of this court The law on appellate interference 7

I am mindful that this is an appeal after a full trial and that an appellate court will generally be hesitant to disturb the findings of the trial judge unless there are clearly appealable errors.

An appellate court will not, generally speaking, intervene and interfere unless the trial court is shown to be plainly wrong in arriving at its conclusion. Matters of finding of facts and legitimate exercise of discretion by the courts of original jurisdiction are often not interfered with by the appellate courts. (See: Wee Lian Construction Sdn Bhd v Ingersoll-Jati Malaysia Sdn Bhd [2010] 3 MLJ 425, Master Jaya Environmental Sdn Bhd v

However, appellate interference is warranted where the trial judge has made a decision which is plainly wrong. A decision is plainly wrong if it is one which no reasonable judge could have reached.

The Federal Court in S Quarry Sdn Bhd v Desaru Development Corporation Sdn Bhd & Ors [2019] MLJU 99 laid down several instances when decisions are considered to be plainly wrong or perverse. Some of the instances where the trial judge’s decision is perverse, are where he had:-

misdirected itself on the evidence;

(ii) failed to judicially appreciate the evidence;

(iii) failed to consider any material evidence;

(iv) acted on some irrelevant evidence as to render the decision wholly erroneous;

made wrong inference from facts; 8

(vi) misapprehended the facts;

(vii) gave reasons which are wholly unsatisfactory or contradictory of each other. (See also: Lee Ing Chin @ Lee Teck Seng & Ors v Gani Yook Chin and Anor [2003] 2 MLJ 97, Md Hilmi Md Noor v Azman Ahmad & Ors [2016] 7 CLJ 360, and N. Ganesan N Narayan v Waytha Moorthy A/L Ponnusamy [2020] 1 LNS 29,)

I shall now deal with the issues arising from both the appeals and addressed by the counsels in their respective submissions. Whether the Plaintiffs’ cars were derelict cars within the meaning of section 46(1)(e) read together with section 46(3)(a) of Act 133; and Whether the act of the Defendant in towing and detaining Mazlina’s car was done in accordance with the law;

Both the issues are related and are to be dealt with together. The relevant provision relied on the Defendant to justify its actions are section 46(1)(e) read together with section 46(3)(a) of Act 133. Section 46(1)(e) reads as follows,

(1) Any person who—

builds, erects, sets up or maintains or permits to be built, erected or set up or maintained any wall, fence, rail, post or any accumulation of any substance, or other obstruction, in any public place; 9

without the prior written permission of the local authority covers over or obstructs any open drain* or aqueduct along the side of any street;

deposits or causes to be deposited any box, bale or package or merchandise, utensils, crockery, or other article or thing in any public place for a longer time than is necessary for loading or unloading such merchandise or article;

deposits or causes to be deposited any goods, article or thing used for or in connection with his trade in any public place;

deposits or causes to be deposited timber, scrap iron, derelict vehicles or any part thereof, waste materials or other article or thing in any public place;

deposits or causes to be deposited garden refuse, kitchen refuse or trade refuse or any other article or thing in any public place; or

causes or allows any vehicle to rest on any footway, shall be guilty of causing an obstruction and may be arrested without warrant by any police officer or as by the local authority and taken before a Magistrate’s Court and shall be liable on conviction to a fine not exceeding five hundred ringgit, and in the case of a second or subsequent conviction to a fine not exceeding one thousand ringgit.

The fact that the cars were parked at a public place was not disputed. The point in contention was whether the cars were derelict, warranting the Defendant’s action as authorized by the provisions of Act 133. 10

On this point, the finding of the learned Sessions Court Judge is relevant. She held as follows, [45] …Defendan membuat tafsiran kereta buruk berdasarkan penilaian saksi-saksi Defendan pada hari rondaan, pemantauan dan hari kejadian dan pengalaman saksi-saksi yang mempunyai kelayakan terutama SD1 yang berpengalaman selama sembilan tahun, SD2, SD3 malah SD4 telah bekerja selama 24 tahun sebagai Pembantu Penguatkuasa. Keadaan fizikal Proton Satria yang tidak bergerak dan terbiar di situ, cukai jalan telah tamat selama hampir satu tahun sebelum tarikh penundaan, warna lusuh, tayar hadapan kanan kempis pancit dan pada hari kejadian enjin Proton Satria termasuklah Honda Accord tidak boleh dihidup merupakan ciri-ciri kereta buruk.

The fact that the road tax and insurance had expired was admitted by both the Plaintiffs. They confirmed in cross examination that the insurance policy for the Proton Satria and Honda Accord had lapsed on 12.4.2017, and had not been renewed. Similarly, there was no valid road tax at the material time.

The learned Sessions Judge rejected the contention of the Plaintiffs that the cars were not derelict vehicles in her judgment as follows, [47] SP2 dan SP3 menjelaskan bahawa SP2 ialah seorang pembersih namun ia tidak boleh semata-mata dijadikan sandaran bagi membuktikan kereta-kereta tersebut bukan 11 kereta buruk apabila ia berada dalam keadaan kotor dengan tayar berpasir, cukai jalan tidak diperbaharui, enjin dan gear box tidak berfungsi, tayar yang pancit, membuang segala notis dari pihak berkuasa, menafikan hak orang awam yang lain dari menggunakan petak kereta yang sama selain membiarkannya tersadai lama dan mewujudkan pemandangan yang jelik kepada penduduk setempat.

She further held that Ramli, whose evidence was not consistent with Mazlina’s, was not a credible witness as his evidence that the cars had been moved was contradicted by the very condition of the cars, particularly the gear box and the engine condition.

The learned Sessions Court Judge had the benefit of hearing and seeing the witnesses, and having carefully evaluated the evidence before her, arrived at the conclusion that the Defendant had correctly found the cars to be derelict. Having considered her evaluation and reasons for her findings, I have no reason to interfere with her decision in this regard.

The law authorizes the Defendant to take consequential action under section 46(3)(a) as follows, Power to remove obstruction

(a) The local authority may cause any such obstruction to be removed or may itself through its servants remove the same to a suitable place, there to remain at the risk of the owner or person offending and may detain the same until the expenses of removal and detention are paid. 12

The local authority shall certify such expenses to the owner or the person offending and the certificate of the local authority shall be conclusive proof of the sum due.

Such sum shall be recoverable in the manner hereinafter provided.

The Defendant then proceeded to tow Mazlina’s car to its depot at Seksyen U16, Shah Alam. At the time of trial, her car was still kept at the depot. I therefore find that the act of the Defendant in towing and detaining Mazlina’s car was done in accordance with the law as section 46(3)(a) expressly allows the Defendant to remove an obstruction within the meaning of section 46(1)(e). Whether the issuance of the warning and compound notices for both cars by the Defendant was done correctly

The Plaintiffs contend that firstly, the notice and/or compound was not done in accordance with the law, for failing to follow the procedure laid down in section 120 of Act 133 and secondly, the Proton Satria ought not to have been towed without giving proper notice to Mazlina.

Section 120 provides, Service of notices 120.

Every notice, order, summons or document required or authorized by this Act or any by-laws made thereunder to be served on any person may be served— 13

by delivering the same to such person or by delivering the same at the last known place of abode of such person to some adult member or servant of his family;

by leaving the same at the usual or last known place of abode or business of such person in a cover addressed to such person; or

by forwarding the same by post in a prepaid cover addressed to such person at his usual or last known place of abode or business.

A notice, order, summons or document required or authorized by this Act or any by-laws made thereunder to be served on the owner or occupier of any premises shall be deemed to be properly addressed if addressed by the description of the “owner” or “occupier” of such premises without further name or description.

A notice, order, summons or document required or authorized by this Act or any by-laws made thereunder to be served on the owner or occupier of any premises may be served by delivering the same or a true copy thereof to some adult person on the premises or, if there is no such person on the premises to whom the same can with reasonable diligence be delivered, by affixing the notice, order, summons, or document to some conspicuous part of the premises

The Plaintiffs’ reliance on this section is misconceived. Compliance with this section is only mandatory if the notice is one which is required to be served prior to taking action under the law. The provision then stipulates the manner in which such notice is to be given.

The Defendant took action under section 46(3)(a) which has no such requirement stipulated. Notice is not a pre-requisite for the 14 removal of the car. (See also: Abdul Hamid bin Seeni Parkir v Majlis Perbandaran Pulau Pinang & Ors [2016] CLJ 91). The contention that compliance with section 120 is required is misplaced.

By way of comparison, references are made to several provisions of Act 133 which requires the notices to be served as follows:-

section 52- where it appears to the local authority that any such drains, culverts, gutters and water courses require altering, enlarging, repairing or cleansing, it may by notice served on the owner or owners of the premises require him to effect such works;

(ii) section 53- where the local authority in carrying out its functions to maintain and keep in repair and, as it sees fit, enlarge, alter, arch over or otherwise improve all or any of the surface and storm water drains, culverts, gutters, and water-courses, may discontinue, close up or destroy such of them as it deems useless or unnecessary, it is to give reasonable notice in writing before entering any private property for the purpose of carrying out any work under this subsection;

(iii) section 59 -if the local authority finds that any urinal or other sanitary convenience opening on any street is so placed or constructed as to be a nuisance or offensive to public decency, it may, by notice in writing, require the owner to 15 remove or alter it to the satisfaction of the local authority and within such period as may be fixed by the local authority;

(iv) section 72- if the local authority finds that any building has been erected prior to the coming into force of this Act in contravention of any law then in force relating to buildings and in respect of which building approval under any law was not given subsequently, the local authority may by notice served on the owner of the land require him to do several of the acts stated in the section.

Unlike the aforementioned provisions, section 46(3)(a) does not provide for the giving of any statutory notice. Consequently the requirement to give notice to Mazlina before towing her car away does not arise.

Quite apart from the contention that the compound notices were not issued correctly for failure to comply with section 120, the issuance of compound notices are matters within the realm of criminal law. It is part of the enforcement of criminal law and inappropriate for challenges to be brought in the civil courts. (See: Government of Malaysia v Lim Kit Siang United Engineers (M) Berhad V Lim Kit Siang [1988] 2 MLJ 12; Abadi Motor Sdn Bhd v Ewwa bt Mohd Yusoff & Ors [2019] 9 MLJ 18). Therefore the declarations sought to the effect that the compound notices are defective, must fail. 16

Having decided that the act of the Defendant in towing the Mazlina’s car was done in compliance with law, her cause of action founded on the tort of conversion must ipso facto, fail.

The decision of the Court of Appeal in OSK Trustees Bhd (as trustees for Sunway Real Estate Investment Trust) & Anor v Metroplex Holdings Sdn Bhd [2020] 3 MLJ 358 is instructive on what constitutes the tort of conversion. Mary Lim JCA (as she then was) held, [26] While the cases may not define what constitutes and what does not constitute conversion with ‘hard-edged precision’ due to the piece-meal development of the law on this remedy, some governing principles may nevertheless be discerned. In Director of Forests & Anor v Mau Kam Tong & Mau Kim Siong (the executors of the estate of Mau Ming, deceased) & Anor and another appeal [2010] 3 MLJ 509, the Court of Appeal cited Osborn’s Concise Law Dictionary (7th Ed) to define ‘conversion is ‘a tort, committed by a person who deals with chattels not belonging to him in a manner inconsistent with the rights of the owner’. [27] The Federal Court in Rimba Muda Timber Trading v Lim Kuoh Wee [2006] 4 MLJ 505 at p 513 cited too with approval, the same observations on what would amount to conversion that were made by Lord Diplock in Marfani & Co Ltd v Midland Bank Ltd and quoted by Lim Beng Choon J in Daniel s/o D Williams v Luhat Wan & Ors, that it is conversion when one deals with goods belonging to someone else such as to usurp that someone of his proprietary or possessory rights in the goods, however mistakenly or innocent that dealing might have been. [28] The essence of the tort of conversion consequently, is in the wrongful appropriation of another’s chattels. Unlike the tort of trespass which concerns an interference with another’s possessory interest in the 17 chattel, the tort of conversion involves an injury to the other’s right or title in the chattel whereby that other is deprived of the use and possession of the chattel. The right or title in the chattel is appropriated and appropriated wrongfully.

There can be no conversion in this instance as the Defendant had dealt with Mazlina’s car in accordance to the governing provisions of the law. She was merely temporarily dispossessed of her car as it was towed away to the Defendant’s depot. Further, there is no question of misappropriating the title to the car as Mazlina retained the title to the car at all times. It was merely to remain in the custody of the Defendant until the expenses of removal and detention are paid.

With regard to the relief for damages, as the Plaintiffs have failed to establish their entitlement to the declarations sought including the claim in conversion, the issue of damages does not arise. Whether the Defendant is entitled to the counterclaim of RM 8,000 ordered by the Sessions Court Judge

This issue arises from the Defendant’s counterclaim. The Defendant seeks to recover the expenses of removal and detention. A sum of RM 300 and RM 10 per day respectively was sought for in the Defendant’s counterclaim. It is trite law that damages must be both pleaded and proved.

The Defendant tendered in evidence an invoice marked as D4 in the course of the trial, and submitted that this is conclusive 18 evidence of the amount due by Mazlina. The learned Sessions Court awarded an amount of RM 8,000 for the expenses incurred under section 46(3)(a).

I have perused D4 and found it to be titled Invois Cukai (Bil Pelbagai MBSA). The amount stated therein is RM 300 for bayaran kos sita/roboh and RM 8,220 for bayaran kos penyimpanan. The date for the invoice is 13.8.2020. Section 46(3)(b) provides that the local authority shall certify such expenses to the owner or the person offending and the certificate of the local authority shall be conclusive proof of the sum due. The evidence is unclear as to whether this Invois Cukai is the certificate meant by the said section. Further, I am unable to appreciate the basis for the learned Sessions Court Judge to award an amount of RM 8,000 when the amount in the Invois Cukai states a different amount. The decision of the Sessions Court allowing the counterclaim is therefore set aside.

For the foregoing reasons, I make the following orders:-

the appeal by Mazlina in appeal BA-12BNCVC-3-01/2021 is partially allowed in that the appeal in respect of the counterclaim is allowed. No order as to costs is made for this appeal; and 19

(ii) the appeal by Ramli in appeal BA-12BNCVC-3-01/2021 is dismissed. I also order that costs of RM 3,000 be paid by the Appellant to the Respondent. Dated : 3rd January 2022 ……..…-sgd…..….. Alice Loke Yee Ching Judicial Commissioner High Court of Malaya at Shah Alam Counsel for the Appellants : Cik Nurul Alysa Binti Mohd. Yusoff (Messr Ramli Yusuff & Co.) Counsel for the Respondent : Encik Azmer Bin Md. Saad (Puan Nur Zalikha Binti Noor Kashif with him) Messrs Lainah Yaacob & Zulkepli