Superintendent of Lands and Surveys v Yong Ing Kai (WN.KP.530727-13-5095) (Q-01(W)-324-07/2019)

YONG ING KAI (WN.KP.530727-13-5095) No. 26 Lane 1, Tapang Road, Sg. Antu, 96000 Sibu

HII LEH NGIICK @ HII YAING SING (WN.KP.490402-13-5042) 22A, Jalan lpoh Persiaran Brooke 20, 96000 Sibu .... RESPONDENTS [IN THE MATTER OF LAND REFERENCE NO. KCH-15-1/1-2018 IN THE HIGH COURT OF SABAH AND SARAWAK AT KUCHING MALAYSIA IN THE HIGH COURT OF SABAH AND SARAWAK AT KUCHING LAND REFERENCE NO. KCH-15-1/1-2018

YONG ING KAI (WN.KP.530727-13-5095) No. 26 Lane 1, Tapang Road, Sg. Antu, 96000 Sibu 2

HII LEH NGIICK @ HII YAING SING (WN.KP.490402-13-5042) 22A, Jalan lpoh Persiaran Brooke 20, 96000 Sibu .... OBJECTORS AND SUPERINTENDENT OF LANDS AND SURVEYS KUCHING DIVISION …. RESPONDENT] CORAM: YAACOB BIN MD SAM, JCA AZIZAH BINTI NAWAWI, JCA LEE HENG CHEONG, JCA GROUNDS OF JUDGMENT [1] This is an appeal against the decision of the learned High Court Judge dated 27.5.2019 with regard to the award of compensation for compulsory acquisition of two (2) parcels of land belonging to both the Respondents. [2] The learned Judge has decided that the date for the determination of the market value of the subject lands acquired under Part lV of the Sarawak Land Code (Cap. 81) for public purposes, is the date of Section 48 Declaration publication date (to determine the compensation to be paid for the subject lands) and not the date when the Section 47 Notification of intended acquisition was published. Hence, this appeal concerns the legal basis upon which 3 the learned Judge has made the award of compensation for the subject lands. [3] Having considered the appeal records and the submissions of the parties, this Court has allowed the appeal with costs. Our decision was unanimous and these are our grounds for allowing the appeal. The Background Facts [4] The Respondents have bought the subject lands (previously Lot 358 Salak Land District) on 23.12.1996 at the price of between RM210,000.00 to RM300,000.00 (“said Lands”). [5] The said Lands was subject to Section 47 Notification issued by the Ministry of Resource Planning on 17.6.1997, published on 16.7.1997, for the intended use 'for the purpose of Sungai Sarawak Flood Mitigation Channel.' [6] Part of Lot 358 Salak Land District, where the land areas containing 9,040.5 square metres, were acquired for the Jalan Rambungan highway project sometime in year 2005 and both the Respondents were compensated at the rate of RM23.00 per sq. m. Both Respondents have accepted the compensation without protest. The balance of Lot 358 is then divided into two lots, which formed the subject matter in this appeal. [7] Vide a Section 48 gazette declaration issued by the Ministry of Planning and Resource Management on 8.4.2009 and published on 2.7.2009, both parcels of the said Lands were later declared to be 4 for the “Proposed Flood Bypass From Sg. Sarawak to Batang Salak”. [8] An inquiry pursuant to Section 51 of the Sarawak Land Code was held on 25.10.2011 at the office of the Superintendent of Lands and Surveys Department, Kuching Division and the total of compensation awarded to the Objectors/Respondents for the resumption of the said Lands are as follows: Land:

(i) Lot 4000 5,728 m2 @ 31.50 p.s.m. = RM180,432.00

(i) Lot 4000 - 5,728 m2 @ 41.00 p.s.m. = RM 234,848.00

(i) Whether the compensation to be awarded should be based on the value of the said Land as of the date of Section 47 Notice of the Sarawak Land Code, or the Declaration under Section 48 of the Sarawak Land Code; and

(a) the market value at the date of the publication of the notification under section 47 or, if no such notification has been published, the market value at the date of the posting of the declaration under section 48;". [23] In Mohd Noor Othman & Ors v. Hj Mohd Ismail Hj Ibrahim & Ors & Another Case [1988] 2 CLJ 597; [1988] 1 CLJ (Rep) 224; [1998] 3 MLJ 82, the Supreme Court held that in interpreting words of statute, it is trite law that where the words of a statute are clear there 12 is no room for the Court to go beyond the expressed language of the statute. [24] From the clear words of section 60(1)(a) of the Sarawak Land Code, we are of the considered opinion that in determining the amount of compensation to be awarded for land resumed under section 53, the Court is to take into consideration the market value at the date of the publication of the notification under section 47. If no such notification under section 47 has been published, only then will the Court take into consideration the market value at the date of the posting of the declaration under section 48. [25] This is so as the acquisition of the land can be made either by invoking both sections 47 and 48 together or invoking section 48 alone. If sections 47 and 48 of the Sarawak Land Code are invoked together, the determination of compensation will be the market value at the date of the publication of the notification under section

If section 48 is invoked without a notification under section 47, then the consideration will be the market value at the date of the posting of the declaration under section 48. In other words, section 48 is only applicable if there is no notification under section 47. [26] In Lim Teck Hoo (supra), the Federal Court held that section 48 is only applicable if no notification under s. 47 has been published. Therefore, where both sections are used, the earlier date (under section 47) must be taken as the material date for determining compensation. 13 [27] In Buan Joong Sdn. Bhd. v Superintendent of Lands & Surveys (Kuching Division) [2005] 2 CLJ 910, this Court has held that the date of valuation of the acquired land ought to be the date of the public notification issued under s. 47 and the date of the declaration made under s. 48 could not be taken as the material date of valuation as the plain words of s. 60(1) did not permit such an interpretation. [28] The same interpretation of section 60(1)(a) of the Sarawak Land Code was applied by this Court in Surianto Abdul Hamid (supra), where Idrus Harun JCA stated at pg 601-602: "[14] Viewed objectively, we need only say on this aspect that the plain words of s. 60(1)(a) allows only one interpretation in that the section requires the court, in determining the compensation to be awarded on the subject lands resumed under s. 53, to take into consideration the market value as at the date of the publication of the notification under s. 47. Such interpretation is clearly supported by the Court of Appeal's decision in the case of Buan Joong Sdn Bhd v. Superintendent of Lands & Surveys (Kuching Division) [2005] 2 CLJ 910 wherein it was held that the date of valuation of the acquired land ought to be the date of the public notification issued under s. 47 and the date of declaration made under s. 48 could not be taken as the material date of valuation as the plain words of s. 60(1) did not permit such an interpretation.... [15] We would like to emphasise that there is, in this regard, no provision in the Land Code which stipulates the date of inquiry to be 14 the valuation date. Section 60(1) which shows clarity of legislative intention is expressed in a very strong mandatory tone as evident by the use of the words 'shall' followed in the same breath with a strict direction "and no others" which plainly prohibit the court from considering any market value that does not come within the two limbs of s. 60(1)(a) or other than the value as it stood at the time the notification was published in s. 47. There is not the slightest room for doubt that any other interpretation of s. 60(1) will result, not only in a non-compliance with the mandatory requirement of the section but also will give rise to a situation that entails a further violation of s. 66. This is because, s. 66 as earlier stated requires every award to specify the amount awarded under s. 60(1)(a) only indicating that any other amount awarded which is not in accordance with s. 60(1)(a) would not be an award that could be specified under s. 66.". (emphasis added) [29] Therefore, this Court in Surianto (supra) has also held that from the plain words of s. 60(1)(a) of the Sarawak Land Code, the date of valuation of the acquired land should be the date of the public notification issued under section 47. [30] The case of Surianto (supra) was applied by this Court Superintendent of Land and Survey Kiching Division v. Robert Lee Chang Hock [2016] 1 LNS 1130; [2017] MLJU 511 where Tengku Maimun Tuan Mat JCA (now CJ) held that from a plain reading of sections 60(1)(a) and 66 of the Sarawak Land Code, the valuation date should be the section 47 notification. 15 [31] The above interpretation is supported by the decision of the Federal Court in Superintendent of Land and Survey Department Kuching Divisional Office & Anor v. Ratnawati Hasbi Mohamad Suleiman [2020] 2 CLJ 425 where the majority judgment has cited with approval the decision of this Court in Surianto (supra). In the majority judgment delivered by Idrus Harun FCJ, His Lordship held as follows: ‘[23] ….. It is trite that the various processes of compulsory acquisition of land in Sarawak is governed by Part IV of the Land Code. These processes begin with a decision of the Minister that any alienated land is likely to be needed for any of the purposes specified in s. 46 of the Land Code after which the land may be resumed or acquired using either a combination of ss. 47 and 48 of the Land Code or s. 48 alone… ….. [26] ….. there is in fact a two-stage approach involved in the process of compulsory resumption of land under Part IV of the Land Code, namely:

(a) a decision by the Minister either to issue a notification under s. 47 that the land is likely to be needed for a public purpose or make a declaration under s. 48 by him that the land is needed for a public purpose (the first stage); and 16

(b) thereafter, the Superintendent (the first appellant herein) would proceed to, inter alia, hold an inquiry to determine and award compensation (the second stage). …. [41] The general principle of law relating to land acquisition under the Land Code is that both ss. 47 and 48, read together with s. 60(1)(a) of the Land Code, have the effect of freezing the value of land for the purpose of determining compensation as at the date of publication of the notification under either s. 47 or s. 48….. ….. [50] The words 'shall' and 'no others' appearing in the chapeau of s. 60 of the Land Code plainly show in express and unmistakable terms that it is peremptory in nature. Section 60 thus makes it mandatory for the court to give effect to the provision in considering the adequate amount of compensation to be awarded (see the Court of Appeal decision in Superintendent of Lands & Surveys Samarahan Division v. Surianto Abdul Hamid & Anor [2016] 3 CLJ 591 at para. [26]). We accept the decision of the Court of Appeal in the above case that s. 60 of the Land Code as it stands is not violative of art. 13 of the Federal Constitution. It is not being challenged in this appeal that Part IV of the Land Code which includes s. 60 is unconstitutional and repugnant to the Federal Constitution. In fact, we would go so far as to say that s. 60 is the law envisaged by art. 13 that allows a person such as the respondent to be deprived of her property as 17 long as she is so deprived in accordance with that law which in actuality requires the court to consider various matters prescribed therein in order to ensure that the respondent shall be adequately compensated for the compulsory acquisition of the subject land. [51] In this case, s. 60 of the Land Code meets the constitutional standards of an expropriatory law laid down by art. 13 of the Federal Constitution. Since there is no s. 47 notification in respect of the subject land in this action, in terms of s. 60, the award of compensation was based on the market value of the subject land as at the date of the s. 48 declaration. The first appellant obviously acted in accordance with the provisions of s. 60 of the Land Code.” (emphasis added) [32] Therefore, based on the decision of the Federal Court in Lim Teck Hoo (supra), the decisions of this Court in Buan Joong Sdn Bhd (supra), Surianto (supra), Robert Lee Chang Hock (supra) and the decision of the Federal Court in Ratnawati (supra), we therefore agreed with the Appellant that the learned Judge erred in law in using the date of the section 48 Declaration as the valuation date to determine the compensation to be paid to the Respondent. We are of the considered opinion that based on the plain reading of section 60(1)(a) of the Sarawak Land Code, the valuation date should be the section 47 notification. In the present case, the section 47 Notification was issued on 16.7.1997. 18 [33] We are also of the considered opinion that the learned Judge has erred in law when he applied the decision in Jais Chee (supra) when this Court in Surianto (supra) has clearly held that the case of Jais Chee (supra) “is a clear departure from the mandatory provisions under section 60(1)(a) which requires the court to apply the date the notice under section 47 was published as the material date in determining the market value of the subject lands.” (see paragraph [23] of Surianto (supra)). Issue (ii) Quantum of Compensation [34] The next issue is on the quantum of compensation to be awarded. The learned Judge has applied the sales data around the section 48 Declaration as those sales were transacted higher than the comparable sales at the section 47 notification. The learned Judge held that it would be unfair to the respondent due to fourteen (14) years delay (from the section 47 notification dated 16.7.1997 to the section 51 Inquiry on 25.10.2011) to make the award based on the section 47 notification. [35] It is not in dispute that the section 47 notification was issued on 16.7.1997, the section 48 Declaration was dated 2.7.2009 and the inquiry under section 51 was conducted on 25.10.2011. There was thus a delay of fourteen (14) years in making the award for compensation. [36] However, as alluded to above, we are of the considered opinion that the learned Judge has erred in law in awarding the compensation based on the value of the said Lands as at the date of the 19 Declaration under section 48 of the Sarawak Land Code. The learned Judge has erred in accepting the Respondent’s Valuer’s comparable sale, of sale no. 3 dated 15.1.2010, which took place after the section 48 Declaration. In Robert Lee Chang Hock (supra), this Court had rejected both valuation reports of the parties, as the valuation report of the appellant was based on the section 48 Declaration whilst the respondent's valuation report was based on the inquiry dates. This Court held that both dates were contrary to section 60(1)(a) of the Sarawak Land Code and the case was remitted back to the High Court for the ascertainment of the market value of the acquired parcels as at the date of the section 47 notification. [37] On the issue of delay, this Court in Surianto (supra) has addressed this issue in the following manner: "[29] Accordingly, with respect, while we agree with Jais Chee, supra that a delay in making the award of compensation might cause the compensation awarded to be inadequate, following the Federal Court's decision in Ong Gaik Kee, supra, we do not think that it is necessary to go so far as to invoke cl. 2 of art. 13 for the purpose of determining the fair market value of the subject lands and thus adequate compensation to be awarded to the respondents. We are of the opinion that the respondents can still be adequately compensated within the existing legal framework provided for in Part IV of the Land Code, not by altering the valuation date which is mandatorily required to be used under s. 60(1)(a), but instead by determining the market value of the subject lands in accordance with the said section and from this 20 base market value, with admissible evidence adduced that injustice and inadequacy of compensation proven, a favourable and upward adjustment is made to increase the compensation in view of the 12 years lapse between the date of the publication of notice under s. 47 and the date of the inquiry under s. 51. In this manner, the award will be truly reflective of adequate compensation and at the same time in compliance with ss. 60(1)(a) and 66 of the Land Code." (emphasis added) [38] Therefore in order to address the issue of adequacy of the compensation due to the delay, an upward adjustment must be made to increase the compensation. This will be based on the factual matrix of each case. [39] In the present appeal, if we look at the reports of the valuers, as at the date of the section 47 Notification, that is 16.7.1997, the Respondent’s Valuer has opined that the market value of the said Lands would be RM10.30 per sq. m, whereas the Appellant’s Valuer (RW1) had opined the same to be RM20.50 per sq. m. In fact in 2005, the Respondents were compensated at the rate of RM23.00 per sq. m for the earlier acquisition of parts of the said Lands. [40] Apart from giving a higher rate of the market value of the said Lands as at 16.7.1997, RW1 has taken into consideration the time factor adjustment at 4% and had provided a compounded adjustment rate of 4% per annum for fifteen (15) years, from 16.7.1997 to the date of resumption on 9.1.2012. In Tan Kheng Pang v. Superintendent of Lands & Surveys, Land Reference No. 15-3-2007-III 21 consolidated with Tan Kheng Pang v. Superintendent of Lands & Surveys, Land Reference No. 15-4-2007-I, where there was a lapse of 32 years between the date of the 1947 notice and date of resumption of the acquired land, the High Court held that the relevant date to determine the market value was the date of the s. 47 notice and to make up the loss of 32 years, the High Court accepted the adjustment made by the respondent's valuer by adding a compound rate of 8% per annum to the value of the land (see Surianto, supra). [41] With regard to the Respondent’s contention that because of the acquisition, the remaining portion is less economical for development and that this is a relevant consideration to increase the valuation rate, we find that the learned Judge has made a finding of fact that the implementation of the flood mitigation project would enhance the value of that land. [42] Therefore, we are of the considered opinion that the Respondents have been adequately or reasonably compensated by having annual increase of 4% to the market value of the said Lands from 1997 to 2012. We find that the final rate of RM31.50 per sq m is a fair and reasonable compensation for the said Lands. 22 Conclusion [42] Premised on the reasons enumerated above, we find merits in the appeal and we therefore allowed the appeal with costs. We set aside the order of the High Court and reinstate the Award of the Superintendent of Land and Survey Department dated 21.11.2011. Dated : 1st November 2021 sgd (AZIZAH BINTI NAWAWI) Judge Court of Appeal, Malaysia Parties Appearing: For the Appellant : Ronald Felix Hardin Jabatan Peguam Besar Negeri Sarawak For the Respondents : Arthur Lee Cheng Chuan Sylvester Lai Tze Yang Tetuan Arthur Lee, Lin & Co. Advocates Cases Referred:

Jais Chee & Ors v Superintendent of Land & Survey Kuching Division [2014] 3 CLJ 467

Superintendent of Land & Survey Samarahan Division v Surianto Abdul Hamid [2016] 3 LNS 591 23

Gan Yook Chin (P) & Anor v. Lee Ing Chin @ Lee Teck Seng & Ors [2005] 2 MLJ 1

CIMB Bank Bhd (formerly known as Bumiputera Commerce Bank Bhd) v. Sebang Gemilang Sdn Bhd & Anor [2018] 3 MLJ 689

Superintendent of Lands & Surveys, Fifth Division, Limbang v. Lim Teck Hoo & Anor [1979] 1 LNS 103

Mohd Noor Othman & Ors v. Hj Mohd Ismail Hj Ibrahim & Ors & Another Case [1988] 2 CLJ 597; [1988] 1 CLJ (Rep) 224; [1998] 3

Buan Joong Sdn. Bhd. v Superintendent of Lands & Surveys (Kuching Division) [2005] 2 CLJ 910

Superintendent of Land and Survey Kiching Division v. Robert Lee Chang Hock [2016] 1 LNS 1130; [2017] MLJU 511

Superintendent of Land and Survey Department Kuching Divisional Office & Anor v. Ratnawati Hasbi Mohamad Suleiman [2020] 2 CLJ 425

Tan Kheng Pang v. Superintendent of Lands & Surveys, Land Reference No. 15-3-2007-III

Tan Kheng Pang v. Superintendent of Lands & Surveys, Land Reference No. 15-4-2007-I