Saw Shiuo Shyong @ Sonny Saw (Juga Dikenali Sebagai Saw Shiuo-Shyong) v 1. ) Ketua Pengarah Tanah dan Galian Wilayah Persekutuan, Kuala Lumpur (WA-21NCvC-34-05/2020)

KETUA PENGARAH PEJABAT TANAH DAN GALIAN WILAYAH

2.

INSPEKTOR JEINTHAN A/L ANNATHAKRISHNAN

KERAJAAN MALAYSIA 02/05/2023 15:43:23

A KUI SEKARANG DIKENALI SEBAGAI SAW SHIOU SHYONG @ SONNY SAW (KTP/NIK Indonesia No. 1207280107560006) (DARI BATAM, INDONESIA YANG MENYAMAR SEBAGAI PLAINTIF DENGAN PALSU) …DEFENDAN-DEFENDAN Grounds of Judgment

This is a simple case where the main protagonists are the Plaintiff and the 5th Defendant and the main issue is who is the real person that is entitled to claim as the real owner of the 5 pieces of land held under Geran 36507 Lot 7, Geran 36508 Lot 8, Geran 36509 Lot 9, Geran 36510 Lot 10 and Geran 36511 Lot 11 all in Seksyen 86A, Town and District of Kuala Lumpur, State of Federal Territory of Kuala Lumpur and located along Jalan Berserah and Jalan Tembeling, Kuala Lumpur (herein after referred to collectively as the “Lands”.)

The claim against the 2nd to 4th Defendant also concerns the said lands with an additional twist of an alleged claim based on the tort of misfeasance of a public office specifically against the 3rd Defendant. The 3rd Defendant is an officer of the Royal Malaysian Police Force. B. Trial of this Claim 3. The following witnesses gave evidence: -

3.1 Plaintiff’s witnesses i) Bagus Suksmo Djati Nur Buwono – SP1 ii) iSaw Shiuo Shyong @ Sonny Saw-SP2 iii) Saw Lee Nen @ Lillian-SP3 iv) Kuok Khoon Hin @ David Kuok-SP4 v) Joseph Yeo-SP5 vi) Yap Hui Lu-SP6

3.2 2nd to 4th Defendants’ witness i) Inspektor Jeinthan A/L Annanthakrishnan-SD1

3.3 The 5th Defendant did not give evidence despite being given the opportunity to do so. Counsel for the 5th Defendant informs the Court that he was unable to contact his client and no other witnesses were made available to Court to support the Defendant’s defence to the Plaintiff’s claim. C. Decision of this Court 4. After considering the pleadings, submissions, and evidence before me, I find that the Plaintiff has proven his claim against the 5th Defendant but has failed to prove his claim against the 3rd Defendant.

The following paragraphs contain my reasons for coming to the above conclusion. D. Reasoning of this Court Claim against the 5th Defendant

I find that the 5th Defendant is an imposter and did attempt to sell the said lands unlawfully. I also find that the Plaintiff has proven that he is the real Sonny Saw and that the lands are belongs to him.

The evidence before me shows that the 5th Defendant had attempted to pass himself off unlawfully as the owner of the lands by way of his devious plans which includes: -

7.1 changing his name from A Kui to Saw Shiuo Shyong Sonny Saw by way of an order of the Indonesian Court order bearing number No. 144/KMA/SK/VII/2007 of 2007.

7.2 misrepresent his identity to the 3rd Defendant as being the real owner of the said lands.

7.3 lodging false police reports against the Plaintiff’s sister.

7.4 attempted to sell the lands to third parties without any authority.

In this case, the 5th Defendant alleges that he is the real owner of the lands and that he had received the lands from his late father, one Soo Kim Tee @ Saw Kim Thiat. This appears in paragraphs 8, 13, 14 and 19(2) of his Defence dated 28-6-2021.

I find that the above contention is untrue and was part of the ruse created by the 5th Defendant to fraudulently sell the said lands to third parties.

Firstly, I find that the evidence before me, especially that of Bagus Suksmo Djati Nur Buwono, the Indonesian lawyer appointed to undertake a search on the actual status of the 5th Defendant in accordance with the records of the Indonesian Government, indicates that the father of the said 5th Defendant is one Ciang A Ngiu and not Soo Kim Tee @ Saw Kim Tiat. The records of the Batam Municipality Population and Civil Registration Agency disclosed that the 5th Defendant’s parents were Lie Kau San and Lie Kaw San. Therefore, it is unlikely that the 5th Defendant is not the true owner of the said lands as the original owner, Soo Kim Tee @ Saw Kim Tiat is not the 5th Defendant’s father.

I also find that the evidence tendered by Suksmo Djati Nur Buwono as being credible as to the true status of the 5th Defendant based on the records of the Indonesian Courts and publicly available documents from the Indonesian authorities. The documents exhibited in his affidavits filed and explained during his testimony supports the explanation as to the identity of the 5th Defendant. The “Surat Keterangan” from the Indonesian authority known as “Pemerintah Kabupaten Deli Serdang” confirms the lineage of A Kui to be not from Soo Kim Tee @ Saw Kim Tiat. This is also confirmed by the “Kartu Keluarga” produced by the Suksmo Djati. The said expert also exhibited the order of the Indonesian Court, as identified earlier, that confirms A Kui did change his name to Saw Shiuo Shyong Sonny Saw. The totality of the evidence before me shows that the person with the Indonesian passport number B 3759091, the 5th Defendant is actually A Kui and he did change his name to Saw Shiuo Shyong Sonny Saw. I do not find any evidence produced by the 5th Defendant to rebut the evidence produced by the Plaintiff’s expert.

Furthermore, I find that the 5th Defendant had misled this Court when he filed his affidavit in answer to the interrogatories filed by the Plaintiff. The 5th Defendant stated that he was “never known as A Kui at any time” and he never applied to change his name at any time. The documents extracted from the Indonesian Court show that he had applied to change his name from A Kui to Saw Shiuo Shyong Sonny Saw. The Indonesian NRIC of the said A Kui and that of the 5th Defendant is also the same as seen in his passport and based on the documents produced by the above-referred expert.

Secondly, I have also taken into account that at the time when the transfer was undertaken from Soo Kim Tee @ Saw Kim Tiat, to the real Sonny Saw, the 5th Defendant was only 12 years old. The lands were transferred from the father to the real Sonny Saw sometime in 1966. According to the passport of the 5th Defendant, he was born on 1-7-

He would have been 12 years old in 1966 and would not be able to hold any title under the requirements of the National Land Code. The title could not have been transferred to the 5th Defendant in 1966.

I refer to section 43 and section 205 of the National Land Code 1965 (Act 56), where it is clearly stipulated that land could not be alienated to minors and that any dealings regarding such land could not be undertaken with minors. That would mean that it would have been impossible for the said land to have been transferred to the 5th Defendant in 1966 when he was 12 years old.

This is to be contrasted with the evidence of the Plaintiff. The Plaintiff did produce substantial documentary evidence to show his relationship with the original owner of the land and explained how he became the owner of the said lands in 1966. He had also produced pictures and evidence of those supporting his lineage to the Soo Kim Tee @ Saw Kim Tiat, family photos, motor racing history linking him to Soo Kim Tee, taxes paid to the Collector of Land Revenue concerning the lands, correspondence by the late father to the Income Tax Department, old ICs and other documents to show that he is the real Sonny Saw.

This is further substantiated by the evidence of the following individuals confirming that the Plaintiff is the real Sonny Saw: -

Lilian @ Saw Lee Nen

(ii) Yap Hui Lu – the advocate and solicitor that assisted in the preparation of the power of attorney.

(iii) Joseph Yeo – the advocate and solicitor that assisted in the removal of squatters residing unlawfully on the said lands.

I also find that the Plaintiff did produce evidence that he had taken steps to protect his rights over the lands by directing his sister to enter caveats over the lands and by removing squatters in the civil suit number 22-145-75 against various parties. This was confirmed by Mr Joseph Yeo who confirmed that it was the Plaintiff and her sister that had taken steps to remove the squatters from the said lands.

I note that much has been said concerning the Power of Attorney and the alleged inconsistencies that may appear in the said instrument as to its affirmation date and where it was affirmed. However, this does not detract from the truth. The Plaintiff has shown to me that he is Sonny Saw and that the 5th Defendant is an imposter.

Finally, on this issue, as the 5th Defendant did not present any evidence to rebut the Plaintiff’s evidence, I find that the evidence presented by the Plaintiff is presumed to be true. This is trite law, and I am bound by high authority to accept the Plaintiff’s evidence. I refer to the judgment of the Federal Court in Takako Sakako v Ng Pek Yuen & Anor [2010] 1 CLJ 381 where Gopal Sri Ram FCJ held:- “[4] In our judgment, two consequences inevitably followed when the first respondent who was fully conversant with the facts studiously refrained from giving evidence. In the first place, the evidence given by the appellant ought to have been presumed to be true. As Elphinstone CJ said in Wasakah Singh v. Bachan Singh [1931] 1 MC 125 at p 128: If the party on whom the burden of proof lies gives or calls evidence which, if it is believed, is sufficient to prove his case, then the judge is bound to call upon the other party, and has no power to hold that the first party has failed to prove his case merely because the judge does not believe his evidence. At this stage, the truth or falsity of the evidence is immaterial. For the purpose of testing whether there is a case to answer, all the evidence given must be presumed to be true. Now, what the trial judge did in the present case is precisely what he ought not to have done. He expressed dissatisfaction with the appellant's evidence without asking himself that most vital question: does the first defendant/ respondent have a case to answer? This failure on the part of the trial judge is a serious non-direction amounting to a misdirection which occasioned a miscarriage of justice. The trial judge was at that stage not concerned with his belief of the appellant's evidence. She had given her explanation as to the discrepancies in the figures. And her evidence does not appear to be either inherently incredible or inherently improbable. In these circumstances it was the duty of the judge to have accepted her evidence as true in the absence of any evidence from the first respondent going the other way. He however failed to direct himself in this fashion thereby occasioning a serious miscarriage of justice.”

I also find that the 5th Defendant did attempt to deal with the lands and wrongfully claimed to be the real Sonny Saw. The 5th Defendant had filed fraudulent police reports against Lilian claiming that he is the real Sonny Saw. This eventually led to the prosecution of Lilian by the 3rd Defendant and to the confiscation of the titles from Lilian and the land office. Fortunately, the said prosecution fell through due to technicalities relating to the charges lodged against Lilian.

In the circumstances, I find in favour of the Plaintiff on the above issues concerning the Lands. I am of the opinion that the Plaintiff has proven his claim against the 5th Defendant. Claim against the 1st to 4th Defendants 22. The 1st and 2nd Defendants are Defendants by virtue of the 3rd Defendant’s position in the Royal Malaysian Police Force and his actions in the said capacity. The 4th Defendant is only added to ensure that the Plaintiff’s interest regarding the aforesaid property at issue is protected. The crux of the Plaintiff’s claim concerns the validity and the conduct of the 3rd Defendant’s actions against the Plaintiff and the manner in which the investigations were undertaken by him.

Having considered the facts, I find that the Plaintiff had failed to prove his claim against the 3rd and 4th Defendants. I do not find sufficient evidence to justify the Plaintiff’s claim for alleged misfeasance of a public office against the 3rd Defendant and 4th Defendants.

I refer to the decision of the Court of Appeal in Datuk Seri Khalid Abu Bakar & Ors v N Indra P Nallathamby [2014] 9 CLJ 15 where the Court summarized as follows: - “To sustain a claim of public misfeasance, what the plaintiff is required to prove is as set out in the case of Three Rivers District Council v. Governor and Company of the Bank of England (No 3) [2000] 2 WLR 1220 which are as follows:

The act complained of had been committed by a public officer purportedly pursuant to his exercise of his public power;

(ii) The act committed must be done with malice which Lord Steyn in Three Rivers explained as follows: First there is the case of targeted malice by a public officer, ie, conduct specially intended to injure a person or persons. This type of case involves bad faith in the sense of the exercise of public power for an improper or ulterior motive. The second form is where a public officer acts knowing that he has no power to do the act complained of and that the act probably injure the plaintiff. It involves bad faith in as much as the public officer does not have an honest belief that his act is unlawful;

(iii) That there is proximity between the deceased and the defendants giving rise to the plaintiff a legal standing to sue; and

(iv) That the acts of the defendants had caused material damage to the deceased.”

I find that the Plaintiff had failed to prove any form of malice on the part of the 3rd Defendant. I accept that the investigation undertaken by him is short of the expected professionalism from our police force, but this does not mean that the 3rd Defendant had breached his duty of care to the Plaintiff and is liable for the tort complained by the Plaintiff.

I also find that the 3rd Defendant was himself duped by the 5th Defendant. He had genuinely believed that the 5th Defendant was the real Sonny Saw and had acted to ensure that the title was not compromised.

I agree that the 3rd Defendant should not have arrested and charged Lilian, but that is itself a separate cause of action that Lilian could pursue on her own behalf. The right to sue for the said wrong, if any, does not fall with the Plaintiff and it would be wrong for this Court to grant any such relief against the 3rd Defendant for a wrong done to Lilian in this suit.

Furthermore, as the lands remain in the name of Sonny Saw, the Plaintiff has not suffered any form of damages against the 3rd and 4th Defendants.

For the above reasons, I dismiss the Plaintiff’s claim against the 3rd and 4th Defendants. However, I do not find the 3rd Defendant’s conduct to be exemplary during the investigation concerning the said lands. He has not explained satisfactorily to this Court, why he chose not to transfer the case to Kuala Lumpur, where the lands were situated and why he chose to charge Lilian despite clear evidence indicating that further investigation is required before any determination is made. Therefore, I make no such orders as to costs against the Plaintiff regarding the costs borne by the 4th and 3rd Defendants. E. Remedies – Orders Made in this Case 29. In view of the above finding, I find that the 5th Defendant should pay to the Plaintiff aggravated and exemplary damages, to the sum of RM 200,000.00. His conduct in pretending to be the real Sonny Saw and his attempt to persuade the public at large, including the police force that he is the owner of the land should be stopped.

However, I find it appropriate that the orders sought by the Plaintiff concerning the said lands be entered as prayed for in the Statement of Claim. This will be binding on the 1st to 4th Defendants to ensure that the title clearly reflects the ownership by the Plaintiff and to ensure future third parties do not attempt to pass off themselves as the owner of the land. This will also be applicable to the Power of Attorney executed by the Plaintiff to her sister to enable the Plaintiff to manage the lands through her as he deems fit.

In view of the above, I make the following orders: - a) The Plaintiff Saw Shiuo Shyong @ Sonny Saw) also known as Saw Shiuo-Shyong) being the bearer of Canadian Passport No.:GK 966728 and formerly a citizen of Malaysia bearing and Old Identity Card No.: 1476768 is and continues to be the registered proprietor and beneficial owner of all 5 parcels of freehold and land held under titles no Geran Geran 36507 Lot 7, Geran 36508 Lot 8, Geran 36509 Lot 9, Geran 36510 Lot 10 and Geran 36511 Lot 11 all in Seksyen 86A, Town and District of Kuala Lumpur, State of Federal Territory of Kuala Lumpur and located along Jalan Berserah and Jalan Tembeling, Kuala Lumpur (collectively as the “Lands”) ; b) The 2nd and /or 3rd Defendants shall forthwith return or cause to be returned all the original issue documents of titles for the Lands to the 1st Defendant no later than fourteen (14) days from the date of judgment herein to be dealt with by the 1st Defendant in accordance with prayer C below; c) The 1st Defendant shall immediately rectify the Plaintiff’s particulars as contained in the titles to the Lands by inserting the current Canadian Passport Number of the Plaintiff as “Pasport Kanada GK966728” and his Malaysian address at No.9, Lorong 14/42A, 46100 Petaling Jaya, Selangor Darul Ehsan in each of the titles to the Lands, and immediately thereafter issue new, updated original titles in continuation for each of the Lands to the Plaintiff. d) The 1st Defendant shall immediately register the further Power of Attorney dated 23 October 2018 granted by the Plaintiff in favour of Saw Lee Nen@ Lillian (NRIC No: 430121-10-5280) in respect of the Lands which had been registered with the High Court of Malaysia at Kuala Lumpur on 25 October 2018 vide Presentation No. WA-SKW-13828-10/2018, and which had been submitted to the 1st Defendant for registration on 30 October 2018. e) A permanent injunction issued restraining 5th Defendant or any person other than the Plaintiff from holding themselves out or pretending or otherwise howsoever claiming to be the registered proprietor of the Lands. f) 5th Defendant to pay the Plaintiff aggravated and exemplary damages, sum of RM 200,000.00. g) Interest on such damages at the rate of 5% per annum from the date of filing of this writ until full settlement. h) Cost of RM200,000.00 to be paid by the 5th Defendant to the Plaintiff subject to allocator. Dated 27th March 2023 Dato’ Indera Mohd Arief Emran bin Arifin Judicial Commissioner High Court Malaya Kuala Lumpur NCvC 8 Edmund Bon together with Allyna Ng for the Plaintiff Messrs. Kanesalingam & Co. Advocates and Solicitors Syahriah binti Shapiee together with Mohammad Ashraf for D1-D4