Saw Shiuo Shyong @ Sonny Saw v 1. Pengarah Tanah dan Galian Wilayah Persekutuan, (WA-21NCVC-34-05/2020)

PENGARAH TANAH DAN GALIAN WILAYAH PERSEKUTUAN,

JEINTHAN A/L ANNANTHAKRISHNAN

SAW SHIUO SHYONG @ SONNY SAW (INDIVIDU DARI BATAM YANG DIKATAKAN MENYAMAR SEBAGAI PLAINTIF) ( B3759091) «'()(1'$176 GROUNDS OF JUDGMENT 2 A. Introduction 1. The First to the Fourth Defendants have applied to strike out the claim against them under Order 18 rule 19 (b) or (d) of the Rules of Court.

In their Notice of Application, the said Defendants contends that: -

the Plaintiff does not have the appropriate locus standi to institute the claim against the Defendants.

(ii) the claim against them is scandalous, frivolous, vexatious or is an abuse of process of Court.

(iii) That the claim is obviously unsustainable that it should be struck out.

3.

I reproduce the Order 18 rule 19 of the Rules of Court 2012: - Striking out pleadings and endorsements (O. 18 r. 19)

The Court may at any stage of the proceedings order to be struck out or amended any pleading or the endorsement, of any writ in the action, or anything in any pleading or in the endorsement, on the ground that- 3

it discloses no reasonable cause of action or defence, as the case may be;

it is scandalous, frivolous or vexatious;

it may prejudice, embarrass or delay the fair trial of the action; or

it is otherwise an abuse of the process of the Court, and may order the action to be stayed or dismissed or judgment to be entered accordingly, as the case may be.

No evidence shall be admissible on an application under subparagraph (1)(a).

This rule shall, as far as applicable, apply to an originating summons as if it were a pleading.

The applicable law on this area is trite and has been explained in the decisions of the Courts in Bandar Builder Sdn Bhd v United Malayan Banking Corporation Bhd [1993] 4 CLJ 7, Sivarasa Rasiah v Che Hamzah Che Ismail [2012] 1 CLJ 75 and Om Cahaya Mineral Asia Bhd v Damansara Realty (Pahang) Sdn Bhd [2018] 5 CLJ 587. 4

I also refer to the judgment of the Malaysian Courts in Sivarasa Rasiah v Che Hamzah Che Ismail (supra) and Bandar Builder Sdn Bhd v United Malayan Banking Corporation Bhd (supra), that if the pleadings disclose a reasonable cause of action and if it FRXOG EH VKRZQ WKDW WKHUH DUH ³LVVXHV RI ODZ WKDW QHHG WR EH elaborateGDQGDUJXHGLQJUHDWGHWDLODQGIRUPDWXUHFRQVLGHUDWLRQ´ then this Court should not strike out the suit.

I am also aware that this Court should also consider if there are relevant factual issues that require deliberation of the facts through witnesses. If there are such issues, this Court should not utilize its powers to strike out the claim under Order 18 rule 19 Rules of Court 2012.

Nonetheless, I am aware of my duty to consider the claim and the affidavit evidence in totality to determine whether there exists a reasonable cause of action that ought to be referred to at trial. For this purpose, I refer to the judgment of Mohd Azmi SCJ in Bank Negara Malaysia v Mohd Ismail [1992] 1 CLJ Rep 14, where his Lordship quoted the judgment of the Privy Council in Eng Mee Yong v Letchumanan [1979] 1 LNS 18, which is reproduced herein: - 5 ³Although in the normal way it is not appropriate for a Judge to attempt to resolve conflicts of evidence on affidavit, this does not mean that he is bound to accept uncritically, as raising a dispute of fact which calls for further investigation, every statement on an affidavit however equivocal, lacking in precision, inconsistent with undisputed contemporary documents or other statements by the same deponent, or inherently imSUREDEOHLQLWVHOILWPD\EH´ B. Decision of this Court ± Enclosure 45

After considering the Notice of Application, the affidavits filed, the submissions filed and arguments raised by learned counsels for the Plaintiff and the Defendants, I decided to dismiss the application. I am of the opinion that this is not a plain and obvious case that justifies the invocation of the powers under Order 18 rule 19 and that there are serious issues to be tried. I find that the Plaintiff has shown a bona fide claim against the said Defendants, and it would be wrong for this Court to strike out the claim summarily. 6XPPDU\RIWKH3ODLQWLII¶V&ODLP

7KH3ODLQWLII¶VFODLPUHYROYHVKLVDOOHJHGULJKWWRDSLHFHRIODQGWKDW is held under titles no Geran 36507 Lot 7, Geran 36508 Lot 8, Geran 6 36509 Lot 9, Geran 36510 Lot 10 and Geran 36511 Lot 11, all situated at Seksyen 86A, Town and District of Kuala Lumpur, Wilayah Persetutuan.

The Plaintiff contends that the Fifth Defendant had impersonated him and attempted to sell or dispose of the land by various means as contained in paragraphs 20 to 28 and 37 to 38 of the Statement of Claim.

The claim against the First to Fourth Defendants are summarised as follows: -

The First Defendant ± is a nominal Defendant for the purposes of ensuring that the title to the property is retained by the Plaintiff and to insert in the title to the land the current details of the Plaintiff.

(ii) The Second to the Fourth Defendants ± Misfeasance of Public Office by the 3rd Defendants. The Plaintiff alleges that the police officer had failed to execute the powers and his duties 7 as a police officer honestly and diligently. The claim relates to the actions taken by the 3rd Defendant who had instead of investigated the ownership of the property appropriately had sided with the Fifth Defendant. These allegations appear at paragraphs 33 to 36 of the Statement of Claim. Matter Set Down for Trial ± Application to Strike Out should be Refused

It is important that I highlight that the case has since been set down for trial at the case management of 24-6-2021. I had called parties for case management and directed that parties comply with the directions given by the court for the exchange of the bundle of documents, pleadings, issues to be tried, and agreed facts in accordance with the rules of Court 2012. The matter was also fixed for trial at the agreement for both parties on the said date and parties agreed that the matter is set down for trial on 13 to 16 June 2022.

Therefore, I am bound by high authority not to allow the application to strike out the Statement of Claim. It is trite law that an application to strike out should be made promptly and if the matter has been set down for trial it should be refused. I refer to the decision Zakaria 8 Yatim J in Bank Bumiputra (M) Bhd & Anor v Lorraine Esme Osman & another [1987] CLJ Rep 472 where his Lordship stated: - ³7KHUXOHVGRHV not specify a time limit during which a party may apply to the Court to strike out a pleading. But the application should be made promptly and as a rule before the close of the pleadings. The Court, however, may allow an application to be made even after the pleadings are closed. But such an application must be refused after the action has been set down for trial. See The Supreme Court Practice 1985, Vol. 1, S´

This position has since been confirmed by the Federal Court in Boo Are Ngor v Chua Mee Liang [2009] 6 CLJ 617, where Zulkifli Makinudin FCJ (as he then was) held: - ³[8] It is our view that O. 18 r. 19(1) of RHC 1980 does not specify a time limit during which a party may apply to the court to strike out a pleading. But the application should be made promptly and as a rule before the close of the pleadings. The court, however, may allow an application to be made even after the pleadings are closed. But such an application must be refused after the action has been set down for trial. (See the case of Bank Bumiputra (Malaysia) Berhad & Anor. v. Lorrain Esme Osman & Ors. [1987] 1 CLJ 572; [1987] CLJ (Rep) 472). Since the second suit has not been set down for trial, the defendant in the present 9 case in our view can still apply to strike out the second suit on the ground RIDEXVHRIWKHSURFHVVRIWKHFRXUW´

As I am bound by the decision of the Federal Court by doctrine of stare decisis, I have no choice but to dismiss the application filed by the First to Fourth Defendants. This suit has been fixed for trial by Court and there was no inclination from the said Defendants counsel that they intended to file the application to strike out. This application was only filed on 14-9-2021 and was subsequently amended and dated 20-9-2021. This is about 3 months from the date on which the suit was set down for trial and more than 1 year from the date when the suit was filed and almost 2 months after pleadings were closed, due to amendments filed by parties.

Therefore, given the above and guided by the above authorities, the application to strike out filed by the said Defendants must be refused by this Court. 10 Not a plain and obvious case to strikeout.

Even if I am wrong on the above, I find that this is not a plain and obvious case justifying the exercise of the powers to strike out the claim against the First to Fourth Defendants.

7KH 'HIHQGDQWV¶ FRXQVHO DUJXHV WKDW WKH FODLP DJDLQVW WKHP LV defective as any wrongdoing, if any, lies on the actions premised DJDLQVW/LOLDQWKH3ODLQWLII¶VDJHQWwho happens to be his sister. Therefore, the learned counsel argues that the Plaintiff did not have any locus standi or cause of action for any wrong done to Lilian. It should be Lilian that initiates the action and not the Plaintiff.

I note that The Plaintiff alleges that despite police reports being made against the Fifth Defendant, the 3rd Defendant chose to arrest Lilian and did not undertake an alleged appropriate or honest course of an investigation into the affairs relating to the land. The Plaintiff further complained that the investigation is undertaken by the police officer in Seremban relating to property in Kuala Lumpur without any real justification and that there seems to be bad faith or mala fides on the part of the said Defendant. 11

On this issue I find that the arguments posed by the Defendants counsel are ZURQJVLPSOLILFDWLRQRIWKH3ODLQWLII¶VFODLP7KHFODLPLV premised on the alleged misfeasance by a public officer against the 3rd Defendant. As I have said earlier, the allegation, although includes the alleged wrongs done against Lilian, includes the claim that the investigation undertaken by the 3rd Defendant concerning the lands at issue was undertaken in bad faith and not in accordance with the standards expected of an officer holding such office. A similar case was decided by the House of Lords in Kuddus v Chief Constable of Leicestershhire Constabularoy [2001] UKHL 29. I also refer to the decision of the Malaysian Court of Appeal in Tony Pua Kiam Wee v Government of Malaysia & anor [2020] 1 CLJ

337.

The key ingredients in a claim for the tort of misfeasance in public office was explained by the Federal Court as follows: - ³[183] The quintessence of the rule of law is that no man is above the law and that all men are equal before the law. This tort therefore serves to protect citizens against abuse of power by public officials. To that extent, it is distinctive in that it combines both public and private law elements, unlike other torts which are wholly private in nature. 12 [184] The key ingredients of the tort are:

an abuse of public power or authority;

(ii) by a public officer;

(iii) who either (a) knew that he was abusing his public power or authority, or (b) was recklessly indifferent as to the limits of their public power or authority; and

(iv) who acted or omitted to act either with (a) the intention of harming the plaintiff (targeted malice); or with the knowledge of the probability of harming the plaintiff, or with reckless indifference to the probability of harming the plaintiff or a class of persons of which the plaintiff was one.´

I find that the pleadings and the affidavits filed here show that the Plaintiff has pleaded the key ingredients to institute its claim against the 3rd defendant and vicariously against the 2nd and 4th Defendants. As I have stated earlier, these allegations appear at paragraphs 33 to 36 of the Statement of Claim. 7KHDOOHJDWLRQVUHODWLQJWR/LOLDQ¶V treatment is not the sole issue raised against the 3rd Defendant but forms an essential part of the plethora of complaints that the said Defendant had utilised his powers wrongfully and had acted or 13 RPLWWHGWRDFWZLWKWKHLQWHQWLRQWRKDUPWKH3ODLQWLII¶VULJKWVWRWKH land.

It would be wrong if I strike out these allegations summarily. These are issues that could only be decided after hearing witnesses and considering the evidence tendered. It is not a plain and obvious case, as the facts as pleaded show that there are issues to the way of investigations were undertaken. I also find it strange that the investigations were undertaken by an officer in Seremban when the subject matter of the claim is based in Kuala Lumpur.

The 'HIHQGDQWV¶ counsel also argues that the gist of the Plaintiff¶V claim is for declaratory orders relating to the land and are mandamus in nature. She, therefore, argues that it is wrong for the Plaintiffs to institute a civil claim against the Defendants for such orders and that the appropriate route should have been by way of a judicial review. Learned counsel then refers to Arab Malaysian Finance Bhd v Stephen Phoa Cheng Loon & Ors [2003] 1 MLJ 567, Robert Cheah Foong Chiew v Lembaga Arkitek Malaysia 14 [2009] 1 MLJ 676 and Ahmad Jefri v Pengarah Kebudayaan & Keseniaan Johor [2010] 3 MLJ 145.

I am however of the opinion that the arguments posed by the learned Counsel are misconceived. The claim filed by the Plaintiff is not to challenge a decision of the 3rd Defendant or any decision of any of the Defendants made in their capacity as civil servants or power provided by statute. Under those circumstances, the said decision can only be challenged by way of judicial review as there would be public law elements that come into the fray. I refer to the decision of the Federal Court in Ahmad Jefri v Pengarah Kebudayaan & Keseniaan Johor [2010] 3 MLJ 145 where James Foong FCJ stated: - ³[20] The ratio of this case is: if the claim for infringement is based solely on substantive principles of public law then relief must be by way of an application for judicial review under O 53 of the RHC. If it was commenced by writ or by originating summons then this would be FRQVLGHUHGDQDEXVHRIWKHFRXUW¶VSURFHVVDQGVKRXOGEHVWUXFNRXW under O 18 r 19(1) of the RHC. But if the matter is under private law though concerning a public authority, O 53 of the RHC is not a suitable. 15 But the distinction and the boundaries between public law and private law are difficult to ascertain in practice though in principle it is clear. Further, what would happen if a matter is a mixture of public law and private law? In our instant appeal, there is also the argument that O 15 r 16 of the RHC to be read with s 41 of the Specific Relief Act 1967, which allows a claimant seeking declaratory relief to commence his claim by ZULWRURULJLQDWLQJVXPPRQV´

I also refer to Order 15 rule 16 which states: - ³1RDFWLRQ or other proceeding shall be open to objection merely on the ground that a declaratory judgment or order is sought thereby, and the Court may make binding declarations of right whether or not FRQVHTXHQWLDOUHOLHILVRUFRXOGEHFODLPHG´

I also refer the decision of the Malaysian Courts in Letchumanan Nagappan v R Nadarajah [1993] 4 CLJ 253, Caxton (Kelang) Sdn Bhd v Susan Joan Labrooy & anor [1987] CLJ Rep 504 and Lim Cho Hock v Government of the State of Perak [1980] 2 MLJ 149.

Eusofee Abdoolcader J (as he then was) in Lim Cho Hock v Government of the State of Perak [1980] 2 MLJ 149, had this to say on the powers of Courts to grant declaratory orders: - 16 ³6RPH IOH[LELOLW\ LV GHVLUDEOH DQG VRPHWLPHV DOWKRXJK DQ LVVXH LV theoretical, the declaration of the Court may be necessary and beneficial and perhaps even useful only if given before a dispute has actually arisen for the guidance of the persons concerned in their future conduct. In such cases, the Courts treat a theoretical issue as if it were a real one. The jurisdiction to grant declarations is extremely wide. Lord Sterndale MR said in Hanson v. Radcliffe Urban District Council [1922] 2 Ch. 490, (at p. 507): "The power of the Court to make a declaration... is now almost unlimited; I might say only limited by its own discretion." And this was affirmed by the Privy Council in Ibeneweka v. Egbuna [1964] 1 WLR 219, 225 where Viscount Radcliffe said (at p. 225): "... the power to grant a declaration should be exercised with a proper sense of responsibility and a full realisation that judicial pronouncements ought not to be issued unless there are circumstances that call for their making. Beyond that there is no legal restriction on the award of a declaration." I do not think that the issue raised in these proceedings is theoretical in the strict sense of the word or that it is premature. If illegal action is threatened or likely, the proceedings are properly constituted (Pharmaceutical Society of Great Britain v. Dickson [1970] AC 403). There must, of course, be a concrete and real cause before the Court and not an abstract or hypothetical question, and I think that the plaintiff is entitled to raise the question of the appointment of the Menteri Besar as President of the Council in the light of the specific provisions of the Act he relies on. It is in the public interest that this issue 17 be resolved at an early date, and that is why I summoned Counsel to arrange as early a hearing of this action as possible immediately after the close of pleadings. I cannot accept the argument that the matter only becomes concrete when the circumstances envisaged in ss. 10(7) and 165(1) of the Act arise or their provisions come to be applied. There is no justification for the contention that the present state of affairs is in posse and not in esse and therefore theoretical, abstract, hypothetical, premature or academic, whichever it is, in relation to the declarations asked for, and I would think that the mere appointment now assailed by the plaintiff in the light of the two provisions of the Act referred to raises a present and substantive issue for determination by the Court. I can see no reason why it would not have been equally open to the defendants or one or more of them to apply for a declaration, if it was thought necessary, to resolve the doubts and controversy engendered by the appointment. Over the issue before me in these proceedings there has been in a tropical sense much beating of drums and some exchange of fire, and it is evident that only by a curial determination, whichever way it goes, will the one be silenced and the other cease.

7KHUHIRUH , ILQG WKDW WKH DUJXPHQWV UDLVHG E\ WKH 'HIHQGDQW¶V counsel that as the Plaintiff had sought declaratory reliefs, it would mean that the claim should have been brought by way of judicial review. That is a clear misapprehension of the law. 18

Given the above, I find that the application filed by the Defendants is misconceived. This is not a plain and obvious case justifying the exercise of the powers of this Court to strike out the claim against the said Defendants. C. Orders of this Court 31. )RUWKHDERYHUHDVRQV,GLVPLVVWKH'HIHQGDQWV¶DSSOLFDWLRQZLWK costs in the cause. Dated 27th December 2021 'DWR¶,QGHUD0RKG$ULHI(PUDQELQ$ULILQ Judicial Commissioner High Court Malaya Kuala Lumpur NCvC 8 19 Mr Shanmuga together with New Sin Yew for the Plaintiffs Messrs Kanesalingam & Co. (Kuala Lumpur) Advocates & Solicitors Pn Syahriah Shapiee for 1st Till 4th Defendant Jabatan Peguam Negara, Putrajaya (Putrajaya)