XXXX v XXXX (PA-25-20-06/2016)

1.

MARITIME WATERFRONT SUITES SDN BHD (NO. SYARIKAT: 1000533-W) …PEMOHON-PEMOHON S/N 4o17cr6Q/EuQvurVrEfqPw Page 2 of 41 DAN MAJLIS BANDARAYA PULAU PINANG …RESPONDEN JUDGMENT (ASSESSMENT OF DAMAGES) PRELUSION [1] This Judicial Review matter went on appeal all the way to the Federal Court. At its culmination, the Federal Court upheld the High Court’s Order that the Respondent (MBPP) is liable to the Applicants for damages, and ordered damages to be assessed by the High Court. [2] In November 2015, MBPP granted the Applicants a temporary permit to operate a hotel (Permit). A few months later in April 2016, MBPP cancelled the Permit. [3] The Applicants filed for a judicial review of MBPP’s decision to cancel the Permit. The Applicants sought reliefs and remedies that included a certiorari Order to quash MBPP’s decision, and damages. [4] This proceeding before me is the assessment of damages. An assessment of damages (AOD) proceeding is centrally about the evidence. It is also about the legal principles that govern the AOD. The sole issue for determination is whether, on the balance of probabilities, the Applicants have proven the overall quantum of damages that they seek. S/N 4o17cr6Q/EuQvurVrEfqPw Page 3 of 41 [5] The Applicants seek the overall quantum of damages which is made up of the respective amounts of damages under these seven heads of loss or damage—

loss of income from the sale of room-nights (or simply put: sale of rooms) of RM3,904,418.00;

idle labour costs of RM213,148.87;

statutory contributions for Employees’ Provident Fund (EPF) of RM29,977.53 and Social Security Organisation (SOCSO) of RM3,760.43;

ASTRO broadcast charges of RM10,231.65;

Rent paid to the Joint Management Body of the Maritime Waterfront development to operate the hotel of RM2,626.50;

apportioned Permit fees of RM545.75;

further damages for loss of reputation, loss of opportunity and profit, and a resumption-of-business cost. THE PRINCIPLES GOVERNING DAMAGES [6] First, the fundamental principle on damages applied here is that damages are to compensate the Applicants for the loss and damage that they suffered due to the wrongful cancellation of the Permit. Damages are to compensate the Applicants by restoring them to their position as if the Permit was not cancelled—Goo Sing Kar v Dato’ Lim Ah Chap & Ors [2013] 3 MLJ 374 (CA); [2013] 1 AMR 200; [2013] 2 CLJ 936; [2013] 3 MLRA 311. [7] In Goo Sing Kar (supra), the Court Of Appeal held— [2] The measure of damages to be awarded to an aggrieved party has been restated in many ways… And all these eminent Law Lords derived their S/N 4o17cr6Q/EuQvurVrEfqPw Page 4 of 41 inspiration from the speech of Lord Blackburn in Livingstone v The Rawyards Coal Company (1880) 5 App Cas 25 (HL) at p 39 when His Lordship said about the measure of damages in these erudite terms: that sum of money which will put the party who has been injured, or who has suffered, in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation or reparation. [3] Asquith LJ in Victoria Laundry (Windsor) Ltd v Newman Industries Ltd [1949] 2 KB 528 (CA) at p 539 aptly said about the measure of damages in this way: It is well settled that the governing purpose of damages is to put the party whose rights have been violated in the same position, so far as money can do so, as if his rights had been observed. [4] Lord Diplock in Albacruz (Cargo Owners) v Albazero (Owners), The Albazero [1977] AC 774 (HL) at p 841C described the purpose of awarding damages in these words: to put the person whose right has been invaded in the same position as if it had been respected so far as the award of a sum of money can do so. [emphases mine] [8] Second, it is also a fundamental principle that damages must be proven, and not merely asserted. These fundamental principles are reinforced in the Federal Court case law authority of Datuk Mohd Ali Hj Abdul Majid & Anor (both practising as Messrs Mohd Ali & Co) v Public Bank Bhd [2014] 4 MLJ 465 (FC); [2014] 4 AMR 301; [2014] 6 CLJ 269. S/N 4o17cr6Q/EuQvurVrEfqPw Page 5 of 41 [9] In Datuk Mohd Ali Hj Abdul Majid (supra), the Federal Court held— [32] It is trite law that a claimant claiming damages must prove that he has suffered the damage. The claimant has the burden of proving both liability and quantum of damages, before he can recover the sum claimed. This follows from the general rule that the burden of proving a fact is upon him who alleges it and not upon him who denies it, so that where a particular allegation forms an essential part of a person’s case, the proof of such allegation falls on him (see s 103 of the Evidence Act 1950). If he fails to prove both the liability and the quantum of damages, he loses the action. [33] Therefore, in a claim for damages, it is not sufficient for the plaintiff to merely state the amount of damages that he is claiming, he must prove the damage that he had in fact suffered to the satisfaction of the court. This principle is borne out in the case of Bonham-Carter v Hyde Park Hotel (1948) 64 TLR 177 where Lord Goddard CJ observed: Plaintiffs must understand that if they bring actions for damages it is for them to prove their damage; it is not enough to write down the particulars, and, so to speak, throw them at the head of the court, saying: ‘This is what I have lost, I ask you to give me these damages.’ They have to prove it. This statement was cited with approval by Edgar Joseph JR FCJ in Tan Sri Khoo Teck Puat v Plenitude Holdings Sdn Bhd [1994] 3 MLJ 777. [emphases mine] [10] Third, another principle that I must heed is that “the law does not demand” that a claimant, such as the Applicants here, “prove with complete certainty the exact amount” of loss or damage that they have suffered—Sambaga Valli a/p KR Ponnusamy v Datuk Bandar Kuala S/N 4o17cr6Q/EuQvurVrEfqPw Page 6 of 41 Lumpur & Ors and Anor Appeal [2018] 1 MLJ 784 (CA); [2018] 4 AMR 745; [2018] 3 MLRA 488; [2017] CLJU 500. [11] In Sambaga Valli (supra), the Court Of Appeal held— [10] Secondly, it is fundamental and trite that a plaintiff claiming damages must prove his damage. A plaintiff cannot simply make a claim without placing before the court sufficient evidence of the loss it has suffered even if it is otherwise entitled in principle to recover damages. The law, however, does not demand that the plaintiff prove with complete certainty the exact amount of damage that he has suffered. Thus, the learned author of McGregor on Damages states as follows (at para 8-002): Where it is clear that some substantial loss has been incurred, the fact that an assessment is difficult because of the nature of the damage is no reason for awarding no damages or merely nominal damages. As Vaughan William LJ put in in Chaplin v Hick [[1911] 2 KB 786], the leading case on the issue of certainty: ‘The fact that damages cannot be assessed with certainty does not relieve the wrongdoer of the necessity of paying damages’. Indeed if absolute certainty were required as to the precise amount of loss that the claimant had suffered no damages would be recovered at all in the great number of cases. This is particularly true since so much of damages claimed are in respect of prospective, and therefore necessarily contingent, loss. (Emphasis added.) [further emphases mine] [12] Fur, I should also follow the principle that just because it may be difficult to assess or quantify damages (for instance: where there is a shortage of documentary evidence), it does not necessarily mean that the successful party is not entitled to any damages. It also does not necessarily mean that the successful party is entitled only to nominal S/N 4o17cr6Q/EuQvurVrEfqPw Page 7 of 41 damages—Tham Cheow Toh v Associated Metal Smelters Ltd [1972] 1 MLJ 171 (FC); [1972] MLRA 26; [1972] CLJU 153. [13] In Tham Cheow Toh (supra), the Federal Court held (at MLJ page 173)— …It has not been shown in this appeal that the amount arrived at was unreasonable. As was stated by Cockburn C.J. in Simpson v The London and North Western Railway Company [1876] 1 QB 274 at page 277:– "… as to the supposed impossibility of ascertaining the damages, I think there is no such impossibility; to some extent, no doubt, they must be matter of speculation, but that is no reason for not awarding any damages at all." The difficulty in assessing damage was also considered in Chaplin v Hicks [1911] 2 KB 786. On page 795 Fletcher Moulton L.J. said:– "… I think that, where it is clear that there has been actual loss resulting from the breach of contract, which it is difficult to estimate in money, it is for the jury to do their best to estimate; it is not necessary that there should be an absolute measure of damages in each case… But in most cases it may be said that there is no recognized measure of damages, and that the jury must give what they think to be an adequate solatium under all the circumstances of the case… In Victoria Laundry (Windsor) Ltd. v. Newman Industries Ltd., supra, Asquith L.J. also said to the same effect on page 543:– "… we agree that in order that the plaintiff should recover specifically and as such the profits expected on these contracts, the defendants would have had to know, at the time on their agreement with the plaintiffs, of S/N 4o17cr6Q/EuQvurVrEfqPw Page 8 of 41 the prospect and terms of such contracts. We also agree that they did not in fact know these things. It does not, however, follow that the plaintiffs are precluded from recovering some general (and perhaps conjectural) sum for loss of business in respect of dyeing contracts to be reasonably expected, any more than in respect of laundering contracts to be reasonably expected." We are, therefore, of the view that the award of the learned trial judge in this case, conjectural though it may be, was right in principle and ought not to be interfered with. [emphases mine] [14] Fifth, the loss of opportunity is compensable and hence assessable or quantifiable as damages. This is known as the Chaplin v Hicks principle. In Chaplin v Hicks [1911] 1 KB 786 (UKCA); [1911-13] All ER Rep 224; 105 LT 285, the UK Court Of Appeal propounded (at KB pages 795 – 797)— Then the learned counsel takes up a more hopeful position. He says that the damages are difficult to assess, because it is impossible to say that the plaintiff would have obtained any prize. This is the only point of importance left for our consideration. Is expulsion from a limited class of competitors an injury? To my mind there can be only one answer to that question; it is an injury and may be a very substantial one. Therefore the plaintiff starts with an unchallengeable case of injury, and the damages given in respect of it should be equivalent to the loss. But it is said that the damages cannot be arrived at because it is impossible to estimate the quantum of the reasonable probability of the plaintiff's being a prize-winner… …Where by contract a man has a right to belong to a limited class of competitors, he is possessed of something of value, and it is the duty of the jury to estimate the pecuniary value of that advantage if it is taken from him. The present case is a typical one. From a body of six thousand, S/N 4o17cr6Q/EuQvurVrEfqPw Page 9 of 41 who sent in their photographs, a smaller body of fifty was formed, of which the plaintiff was one, and among that smaller body twelve prizes were allotted for distribution; by reason of the defendant's breach of contract she has lost all the advantage of being in the limited competition, and she is entitled to have her loss estimated. I cannot lay down any rule as to the measure of damages in such a case; this must be left to the good sense of the jury. They must of course give effect to the consideration that the plaintiff's chance is only one out of four and that they cannot tell whether she would have ultimately proved to be the winner. But having considered all this they may well think that it is of considerable pecuniary value to have got into so small a class, and they must assess the damages accordingly. [emphases mine] [15] Sixth, the loss of revenue or profits (here: loss of income), as an award of damages to compensate the successful party—to put that party in the same position as it would have been in if the breach had not occurred—is recognised and accepted in our case law—see for instance: (1) Gentali (M) Sdn Bhd v Kawasaki Sunrock Sdn Bhd (No 3) [1998] 5 MLJ 409 (HC); [1997] AMEJ 0032; [1996] 4 CLJ 813; [1997] 5 MLRH 694; (2) PSAA Holdings Sdn Bhd v Petronas Lubricants Marketing (Malaysia) Sdn Bhd [2022] AMEJ 0832 (HC); [2022] CLJU 1354. THE AGREED PERIOD FOR THE CALCULATION OF DAMAGES [16] The parties agreed that the period for the calculation of damages is an 83-day period, from 22.4.2016 (the date the Permit was cancelled) to 13.7.2016 (the date the High Court quashed MBPP’s decision to cancel the Permit, ordered MBPP to reinstate the Permit, and granted a stay of MBPP’s decision pending the Applicants’ judicial review application, which the Applicants ultimately won). S/N 4o17cr6Q/EuQvurVrEfqPw Page 10 of 41 AGREED NUMBER OF ROOM-NIGHTS SOLD IN THE 83-DAY PERIOD [17] The parties are also agreed on the number of room-nights sold in the 83-day period, which is 3,569 room-nights sold. [18] The evidence of this number of 3,569 room-nights is contained in the Applicants’ KT-1 Forms. The KT-1 Forms show the monthly local government fee (levy) that the Applicants paid. There are three variables in the particulars of the KT-1 Form—

the number of room-nights sold;

(ii) the category of levy paid, consisting of two rates: RM2.00 per room-night for a hotel with a 3-star rating or below, and RM3.00 per room-night for a hotel with a 4-star rating and above. There are only these two rates—RM2.00 and RM3.00; and

(iii) the overall amount paid for the month (which is a simple calculation of the total number of room-nights sold X (multiplied by) the amount of the levy i.e. either RM2.00 or RM3.00). [19] It must be noted that one of the primary particulars or details on the KT-1 Form is “Nama Hotel/Hostel/Rumah Tumpangan” (Name of the Hotel/Hostel/Boarding House). Another primary particular on the KT-1 Form is “Taraf Bintang Hotel” (Hotel Star Rating), with instructions to tick one of the five boxes for the number-of-stars ratings, namely “1-star and below”, “2-star”, “3-star”, “4-star” and “5-star”. These particulars and instructions for filling up the KT-1 Form demonstrate to me that for the purpose of collecting the local government levy—it is not pivotal as to what label is given to the entity or person who is obligated to pay the levy. The term “Hotel/Hostel/Rumah Tumpangan” simply describes or captures S/N 4o17cr6Q/EuQvurVrEfqPw Page 11 of 41 every entity or person who is in the business of letting out their accommodation spaces (rooms) for guests to stay for the night. [20] I make this finding here, in advance, because the parties are in dispute about whether the Applicants were operating as a “Hotel” or a “Homestay”. MBPP asserts that the Permit was for the Applicants to operate as a Hotel. MBPP also asserts that despite the cancellation of the Permit, the Applicants continued to operate as a Hotel in the 83-day period, in defiance of MBPP’s decision to cancel the Permit, thus disentitling the Applicants to any damages. [21] The Applicants, on the other hand, assert that they continued to operate, not as a Hotel but as a Homestay instead. The Applicants assert that they did so to mitigate their losses, which is their duty in law to do because they seek the remedy of damages. [22] I also note that the KT-1 Forms are the Applicants’ documents. The KT-1 Forms were prepared by the Applicants’ human resource officer and verified by the Applicants’ general manager. [23] I also find that the Applicants continued to pay the RM3.00 per room-night levy, just as they had done before the cancellation of the Permit. MBPP uses this fact to argue that the Applicants were operating their business as a Hotel. And because they were illegitimately operating as a Hotel, they should not be entitled to any damages for their prohibited activity. In other words, for this reason alone, the Applicants should be entitled to zero damages. In other words—the Applicants should not be given any damages at all. S/N 4o17cr6Q/EuQvurVrEfqPw Page 12 of 41 [24] The Applicants, on the other hand, argue that they just continued to pay the RM3.00 levy as they had done previously, and there is nothing wrong with that act. If their operations as a Homestay attracted the lower levy of RM2.00 per room-night sold, then they had done nothing wrong by paying the higher RM3.00 levy. [25] On these arguments, I find that it is a fact that the Applicant continued to operate by selling room-nights i.e. continued to let out their rooms to their guests—by whatever label they wish to call that business activity. Put differently, the Applicants were doing business in the 83-day period. And because it was done in mitigation of the loss that they assert they suffered, this Court has to assess, based on the evidence—not based on the mere opposing arguments of the parties—what is the quantum that the Applicants managed to mitigate, and to deduct that amount from the overall damages assessed under the head of loss of income from the sale of room-nights in the 83-day period. WHAT IS DISPUTED IS THE ROOM RATES CHARGED [26] With the agreed 83-day period of loss or damage, and the agreed 3,569 room-nights sold in that period to be applied i.e. to be deducted in mitigation, there are only two remaining disputed variables. [27] The first is the various room-rates (the prices) that the Applicants could have sold their rooms for in the 83-day period. The second is the room rates that the Applicants actually sold the 3,569 rooms for in the 83-day period, in mitigation. FIRST HEAD OF DAMAGE—LOSS OF INCOME FROM THE SALE OF ROOM-NIGHTS S/N 4o17cr6Q/EuQvurVrEfqPw Page 13 of 41 [28] The Applicants ask for damages under this head of damage to be assessed in this manner— [The maximum amount of income that the Applicants could have made i.e. on 100% occupancy for the 83-day period] less [20%: because it is unlikely that the Applicants could have 100% occupancy for the whole 83-day period; the Applicants propose 80% occupancy] less [Amount of damages mitigated] equals [Quantum of damages to be awarded] [29] The AOD exercise must be based on the available evidence. The pertinent points against the Applicants’ method of assessing the quantum of damages include the following points. There is no direct evidence of the amount of damages that was mitigated [30] When the Applicants filed for judicial review, they prayed for damages. When they took steps to mitigate damages, they would have known or at least anticipated that they had to compile and collate the evidence to prove the damages mitigated. [31] The Applicants assert that they had no choice but to continue to operate their business without running foul of the effect of the cancelled Permit. They assert that they continued to let out their rooms as a Homestay i.e. operate their business as a Homestay, to mitigate the loss and damage that they would have suffered if they had stopped operations S/N 4o17cr6Q/EuQvurVrEfqPw Page 14 of 41 completely, since it is their duty to mitigate as the claimants for the remedy of damages. But they did not compile and collate the documentary evidence to prove the amount of damages that they in fact mitigated or avoided or alleviated. [32] Further, MBPP asked the Applicants to produce the very evidence that the Applicants did not compile and collate, particularly the Tax Invoices for the room-nights actually sold in mitigation in the 83-day period, and the Receipts of the payments received for the Tax Invoices issued. [33] The Applicants refused to produce the documents, arguing what I will call a technical point—that MBPP asked for Tax Invoices and Receipts of the Applicants’ “Hotel business” for the 83-day period. The argument goes that as the Applicants did not operate “as a Hotel” in that period, but instead operated only as a Homestay, there were no Hotel Tax Invoices and Receipts to produce. [34] The Applicants also submitted that another reason that they were unable to produce the documentary evidence, was that they did not keep a record of the amounts they collected for the Homestay room-nights sold in the 83-day period. The 1st Applicant testified, in cross-examination, that in the 83-day period, they made only manual records of the invoiced amounts and the amounts received in payment. [35] I find this assertion untenable. [36] Firstly, the Applicants assert that they could not produce the Tax Invoices and Receipts but they could nevertheless somehow produce their Goods and Services Tax (GST) Declaration for the 83-day period. S/N 4o17cr6Q/EuQvurVrEfqPw Page 15 of 41 And the supporting documents such as the EPF and SOCSO payments made for their personnel for the 83-day period; and the ASTRO charges that they incurred in the 83-day period—to substantiate their claims under the several heads of damage. They chose to use their GST Declaration to derive (calculate) the income that they made in mitigation. But this evidence is indirect evidence. [37] The direct evidence, however, is the Tax Invoices and the Receipts of the payments for the Tax Invoices, which the Applicants did not produce. [38] I agree with the submission of MBPP that GST payments are invoice-based. The GST amount that had to be paid depended on the amounts stated in the taxpayer’s Invoices. If the GST Receipts were available to the Applicants, then the supporting Tax Invoices should also have been available to them. The Applicants’ failure to allow discovery or to produce the documentary evidence that proves their damages [39] I reiterate that the direct evidence of the income (revenue) that the Applicants made in the 83-day period is the Tax Invoices and Receipts (more particularly the Receipts) issued in the 83-day period, regardless of whether the Applicants were operating as a Hotel or a Homestay. I am to assess the amount of damages that the Applicants managed to mitigate. And this is the evidence that will prove the amount mitigated. [40] To my mind, the income that the Applicants made in the 83-day period is directly relevant to assess whether there was a loss of income, and if there was a loss of income, then how much was the loss of income S/N 4o17cr6Q/EuQvurVrEfqPw Page 16 of 41 that the Applicants suffered within the 83-day period. The evidence that proves the income in the 83-day period is the Tax Invoices and the corresponding Receipts of the payments received. The Receipts are the evidence of the Applicants’ income (revenue). [41] The Applicants’ Financial Statements (their Profit And Loss Statement and their Balance Sheet) for the relevant year were derived from documents that included, or were based on, the Tax Invoices and the corresponding Receipts. [42] There should be no reason that these Tax Invoices and Receipts were not in the Applicants’ possession, custody or power, and yet the Applicants did not produce them for this AOD proceeding. [43] The Applicants should have kept and produced the Tax Invoices and Receipts, or kept and produced the accounts that were derived from the Tax Invoices and Receipts. The Applicants assert that they continued to operate and sold room-nights as a Homestay, to mitigate losses. Surely, they could and should have kept and produced the evidence that proves their damages. Especially since they filed the judicial review proceeding and sought damages. [44] Even in an AOD proceeding, the parties are entitled, in fact obligated, to go through the process of Discovery, so that either side can produce, for the proceeding (using the expressions used in Order 24 of the Rules Of Court 2012 on Discovery And Inspections Of Documents)—

documents which they respectively rely on;

documents which adversely affect their own case;

documents which support the opposite side’s case; and

documents which are adverse to the opposite side’s case. S/N 4o17cr6Q/EuQvurVrEfqPw Page 17 of 41 [45] Parties cannot suppress or withhold these documents from being produced for the AOD proceeding. After all, judicial review proceedings are civil proceedings, governed by the Rules of Court. And there should be no surprises, as far as the disclosure of the documentary evidence is concerned, before and at the hearing. [46] I find that section 114(g) of the Evidence Act 1950 is applicable in this AOD proceeding. An adverse presumption should be drawn against the Applicants for not producing at least the Tax Invoices and Receipts for business done in the 83-day period. These documents are pertinently relevant for this AOD proceeding, to ascertain how much income the Applicants made in mitigation against damages. [47] Section 114(g) provides that— Section 114. Court may presume existence of certain fact. The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct, and public and private business, in their relation to the facts of the particular case. ILLUSTRATIONS The court may presume— …

that evidence which could be and is not produced would if produced be unfavourable to the person who withholds it;… [emphases mine] [48] I therefore make this adverse inference against the Applicants, that if the Applicants had produced the Tax Invoices and Receipts for the 83- S/N 4o17cr6Q/EuQvurVrEfqPw Page 18 of 41 day period, the content of the evidence would be unfavourable to the Applicants. [49] But unfavourable to the Applicants to what extent? To my mind— unfavourable to the extent of the actual available evidence i.e. within the confines of the available evidence. Put differently, I am not prepared to make an adverse inference to the extent that the Applicants’ income in the 83-day period, made in mitigation against overall damages, entirely extinguishes the maximum income that the Applicants could have made in the 83-day period, resulting in no damages at all under this first head of damage, or resulting in awarding only nominal damages. I am of the view that this result is not fair and just. [50] The Applicants’ proposed method of calculating the loss of income in the 83-day period is entirely on the income that they “could have” made if not for the cancellation of the Permit. The starting point of their analysis (submission) is to calculate the amount of income that they could have made if they had 100% occupancy in every category of rooms they could have sold. To calculate this amount of income, they presume that they can charge their maximum rate for every room in every category for every day of that 83-day period. Then, to calculate the amount of losses that they mitigated, they presumed that every room-night which they sold during their mitigating operations in the 83-day period, was sold at the average rate of RM200.00 per room-night. [51] So, what are the parameters of the available evidence of how much income the Applicants made in the 83-day period? The income is computed by the number of rooms sold X (multiplied by) the room rate (price) that the rooms were sold for. The first variable is the number of S/N 4o17cr6Q/EuQvurVrEfqPw Page 19 of 41 rooms sold—3,569 rooms. This number is agreed upon. The second necessary variable is the room rate. [52] This aspect of the determination of how much damages were mitigated is the room rate charged and paid. The Applicants submit that they charged an average of RM200 per room-night, and that is the rate that should be used to calculate how much income (revenue) they made in mitigation. The Applicants, of course, want this amount to be as low as possible, such that the amount deducted as mitigation is low, so that the final calculation of damages is a higher amount. [53] MBPP, on the other hand, wants this amount to be as high as possible, such that the amount deducted in mitigation is high, so that the final calculation of damages is a lower amount. [54] In this context, MBPP could have procured sample Tax Invoices in the 83-day period. MBPP could have done a trap purchase by purchasing a room-night or several room-nights of the several room-types. That would have constituted direct evidence of the actual room rate or rates for the rooms sold in mitigation, in the 83-day period. But this was not done and there remains no direct evidence of the actual or average room rate charged in the 83-day period. [55] I am of the view that since an adverse inference is made against the Applicants for not producing the Tax Invoices and Receipts for the 83- day period, whatever the basis or the estimate that is used to calculate (assess) damages, the basis or the estimate which are in MBPP’s favour i.e. for MBPP’s benefit—should be used. S/N 4o17cr6Q/EuQvurVrEfqPw Page 20 of 41 The maximum income the Applicants could have made in the 83-day period if fully occupied [56] The Applicants’ starting point is to work out how much income (maximum income) they could have made, from the full occupancy of all their rooms, in the 83-day period. This amount, they submit, is the maximum amount that they could have made if not for the wrongful cancellation of the Permit. This maximum amount represents their loss of opportunity. In other words, because the Permit was cancelled, the Applicants could have but could not make this income. [57] I am of the view that in this AOD investigation, ascertaining this amount is a reasonable starting point. It is against this maximum amount that other amounts can be computed or reasonably estimated, and accordingly deducted—amounts such as the amount that the Applicants could have made from a reasonable occupancy rate in the 83-day period, or the amount the Applicants actually made by continuing to do business in the 83-day period by selling their rooms-nights at a reduced rate in mitigation. The Applicants’ calculation [58] The Applicants’ calculation of this maximum amount is set out in Appendix A of the Applicants’ Summary Of Case, Enclosure 70, marked as Bundle L. It is also reproduced at paragraph 32 of the Applicants’ Written Submissions (Enclosure 142)— Asserted income that could have been generated (if fully booked: 100% occupancy) Weekday Total Rooms Rate Per Night (Promotion rate) Total Income if fully booked S/N 4o17cr6Q/EuQvurVrEfqPw Page 21 of 41 i Deluxe Suite 20 RM 498 RM 9,960 ii Family Suite 38 RM 638 RM 24,244 iii Family Duplex Suite 2 RM 1,594 iv Executive Suite 1 v Studio Suite 1 Total per day RM 36,843 Total weekdays for the period from 22 April – 13 July 2016 (46 days) RM 1,694,778 (A) Weekend Total Room Rate Per Night (Tariff rate) Total Income if fully booked i Deluxe Suite 20 RM 897 RM 17,940 ii Family Suite 38 RM 997 RM 37,886 iii Family Duplex Suite 2 RM 2,400 iv Executive Suite 1 v Studio Suite 1 Total Per Day RM 59,720 Total weekends/public holidays and school holidays for the period from 22 April – 13 July 2016 (37 days) RM 2,209,640 (B) Total income that the Applicants assert could have been generated in the 83-day period if fully occupied: (A) + (B) RM 3,904,418 There are 46 weekdays and 37 weekends/holidays [59] In the 83-day period, there were 46 weekdays and 37 weekends/holidays (which I will collectively call “weekends” in brief). Promotion rate for weekdays and tariff rate for weekends S/N 4o17cr6Q/EuQvurVrEfqPw Page 22 of 41 [60] The Applicants used the promotion rate as their weekday rate and the tariff rate as their weekend rate. The promotion and tariff rates for the various room-types are substantiated by the Applicants’ Brochure (Enclosure 141), which was produced by the 1st Applicant when she testified. She produced the Brochure in her Witness Statement (Enclosure 98) at Question & Answer No. 6. [61] Furthermore, the 1st Applicant testified that the Applicants charged the promotion rate for a weekday room-night and the tariff rate for a weekend room-night. This evidence was not effectively challenged by MBPP in cross-examination. However, MBPP strenuously takes the hardest possible stand in this AOD proceeding. MBPP’s position is that the Applicants should not be entitled to any amount of damages at all. MBPP submits that if the Applicants are in any event awarded any damages, they should only be given nominal damages. [62] MBPP’s stand is no different concerning the Brochure. MBPP challenges the Brochure as a piece of evidence for this AOD proceeding by saying that there is no evidence that the rates in the Brochure were implemented or in fact charged to the Applicants’ guests in the 83-day period. I asked MBPP whether it accepts that the Brochure was produced as evidence by the 1st Applicant through her Witness Statement i.e. her examination-in-chief, and that she testified about charging the promotion rate for a weekday room-night and the tariff rate for a weekend room-night. When I put it like that to MBPP, MBPP then responded that it accepts that the Brochure is part of the body of evidence in this AOD proceeding. [63] In any event, MBPP’s argument is not cogent in this context. MBPP repeatedly argues that the actual Tax Invoices of the rates actually S/N 4o17cr6Q/EuQvurVrEfqPw Page 23 of 41 charged were not produced before the Court, even though MBPP issued a Notice To Produce to the Applicants, with which the Applicants did not comply. MBPP argues that for not producing the Tax Invoices—the Applicants should get no damages. [64] But this argument is only relevant in the context of challenging the actual Tax Invoices for the rates actually charged for the rooms-nights actually sold in the 83-day period. What I am determining here, however, is what the Applicants could have charged in the 83-day period, which, of course, did not actually take place because of the wrongful cancellation of the Permit, causing the loss and damage. MBPP’s argument misses the point here and is rendered irrelevant. [65] As such, I accept the Brochure as evidence, and I find that the Applicants could have been able to charge the promotion rate for a weekday room-night and the tariff rate for a weekend room-night. Two discrepancies to resolve—RM442 for a Deluxe Suite and the total number of rooms is 60, not 62 [66] I want to point out two discrepancies, from which I will make findings that favour MBPP i.e. findings that will result in MBPP paying a smaller amount of damages than if there had been no discrepancies. [67] The first discrepancy is the Brochure Promotion Rate for a Deluxe Suite room (RM442 per room-night) and the Appendix A Weekday Rate for a Deluxe Suite room (RM498 per room-night). [68] Since the evidence—the Brochure—discloses the RM442 rate, I find that this is the rate that should be used, and not the rate that the 1st S/N 4o17cr6Q/EuQvurVrEfqPw Page 24 of 41 Applicant submitted in her Witness Statement as the rate to be used (which I find has no cogent evidential value). [69] Also, this lower rate of RM442 is favourable to MBPP because I am determining how much is the maximum amount that the Applicants could have made in the 83-day period. Using this lower rate will lower the maximum amount. [70] The second discrepancy is the total number of rooms that the Applicants had available to sell in their business. In the Applicants’ Appendix A, the Applicants assert that they had a total of 62 rooms for sale. However, the documentary evidence—in the Applicants’ Borang B: Application for the Permit—the Applicants applied for a Permit for only 60 rooms (under Item 16: “Bilangan Bilik” (Number of rooms)). I therefore accept 60 rooms as the Applicants’ total number of rooms for sale. [71] I therefore have to exclude two rooms from the calculation. The question then is which two rooms or room-types do I exclude from the calculation of how much income the Applicants could have made in the 83-day period? Again, for MBPP’s benefit, I exclude the two room-types with the highest room-rates—

one Family Duplex Suite (RM797 for weekdays and RM1,200 for weekends), and

(ii) one from the Family Suite (RM638 for weekdays and RM997 for weekends). [72] In other words, I will use 60 total rooms, after deducting one from the highest rate room: Family Duplex Suite and one from the second-highest rate room: Family Suite. S/N 4o17cr6Q/EuQvurVrEfqPw Page 25 of 41 My finding on the income that could have been generated (if fully booked: 100% occupancy) Weekday Total Rooms Rate Per Night (Promotion rate) Total Income if fully booked i. Deluxe Suite 20 RM 442 (not RM498) RM 8,840 ii. Family Suite 37 (not 38) RM 638 RM 23,606 iii. Family Duplex Suite 1 (not 2) iv. Executive Suite 1 v. Studio Suite 1 60 Total Per Day RM 34,288 Total 46 weekdays 34,288 x 46 RM 1,577,248 (A) Weekend Total Rooms Rate Per Night (Tariff rate) Total Income When Fully Booked i Deluxe Suite 20 RM 897 RM 17,940 ii Family Suite 37 RM 997 RM 36,889 iii Family Duplex Suite 1 iv Executive Suite 1 v Studio Suite 1 60 Total Per Day RM 57, 523 Total 37 weekends 57,523 x 37 RM 2,128,351 (B) Total income that could have been generated in the 83- day period if fully occupied: (A) + (B) RM 3,705,599 S/N 4o17cr6Q/EuQvurVrEfqPw Page 26 of 41 The reasonable occupancy rate in the 83-day period [73] The Applicants concede that it is unlikely that they would have had a 100% occupancy rate in the 83-day period. They submit that an occupancy rate of 80% is fair. In other words, they accept that the 100% full occupancy income amount of RM3,705,599 should be reduced by 20%, to get the 80% occupancy rate. [74] I am, however, of the view that this 80% occupancy rate is more arbitrary than reasonable. Particularly when I can compute the actual occupancy rate in the 83-day period. [75] The actual occupancy rate in the 83-day period can be computed in this way— - There are 60 rooms. Full occupancy in the 83 days is 60 x 83 = 4,980 rooms - It is agreed that the Applicants sold 3,569 rooms in the 83-day period - Hence, the occupancy rate in the 83-day period is 3,569 rooms (actually sold) divided by 4,980 rooms (if every room is sold) =

71.67%. [76] Again, for MBPP’s benefit, I will lower even this 71.67% rate to 70%. In other words, I think that it is fair, and substantiated, to reduce the total income amount in the 83-day period from RM3,705,599 (100% occupancy) to RM2,593,919.30 (70% occupancy). [77] I conclude that the income amount that the Applicants could have made, at a 70% occupancy rate, in the 83-day period, is RM2,593,919.30. S/N 4o17cr6Q/EuQvurVrEfqPw Page 27 of 41 The amount that should be deducted in mitigation [78] What is the amount that should be deducted in mitigation? The number of room-nights sold in the 83-day period is agreed at 3,569 rooms. The variable is again the average room rate that these 3,569 rooms were sold for in the 83-day period. The Applicants submit that the average room rate should be RM200. [79] What are the alternative average room rates that could be used to calculate the amount in mitigation that should be deducted from the maximum amount of income that the Applicants could have made in the 83-day period? [80] First, the Applicants argue that to get the amount that should be deducted in mitigation, the Court should multiply the number of rooms sold in the 83-day period by RM200. The Applicants argue that the average rate of RM200 should be used because, on two occasions in the 1st Applicant’s re-examination, she testified that in the 83-day period, the Applicants sold the rooms for RM100 – RM200. The average room rate that could be used to multiply by 3,569 rooms could be the higher-range amount of RM200. RM200 X 3,569 rooms = RM713,800. This could be the amount that could be deducted from the maximum income figure. [81] Second, in cross-examination, the 1st Applicant testified that in the 83-day period, the average rate that the rooms were sold was RM200 – RM300. Then in re-examination, the 1st Applicant testified that the Applicants had to compete with other Homestay rates of RM200 - RM300. In other words, the Applicants could have sold their rooms for an average rate of RM300, like the other Homestay rates. The average room rate that could be used to multiply by 3,569 rooms could be the higher-range S/N 4o17cr6Q/EuQvurVrEfqPw Page 28 of 41 amount of RM300. RM300 X 3,569 rooms = RM1,070,700. This could be the amount that could be deducted from the maximum income figure. [82] Third, MBPP, in its Written Submissions (Enclosure 143), at paragraphs 27.3 and 35, submitted that the average room rate in the 83- day period should be RM400. MBPP was arguing for an average rate that is higher than both the RM200 or RM300 alternatives presented by the Applicants, such that the amount of damages that they may have to pay is lower. The average room rate that could be used to multiply by 3,569 rooms could be the amount submitted by MBPP—RM400. RM400 X 3,569 rooms = RM1,427,600. This could be the amount that could be deducted from the maximum income figure. [83] However, instead of these three alternatives, I find that there is relevant evidence that will produce a more accurate average room rate for the rooms sold in the 83-day period. This evidence is the Applicants’ own advertisement of their room rates during the 83-day period. The Applicants’ advertisement in the 83-day period offered the rate of RM402 for their Deluxe Suite and RM598 for their Family Suite. I am of the view that these advertised rates should form the basis for assessing the average room rate that the Applicants sold the 3,569 rooms in the 83-day period. [84] The calculation is as follows— - Deluxe Suite: 20 rooms X RM402 (advertised rate) = RM8,040. - For Family Suite: 37 rooms X RM598 (advertised rate) = RM22,126. - Family Deluxe Suite: 1 room X RM598 (using the higher of the two advertised rates offered) = RM598. S/N 4o17cr6Q/EuQvurVrEfqPw Page 29 of 41 - Executive Suite: 1 room x RM598 (again using the higher of the two rates) = RM598 - Studio Suite 1 x RM598 = RM598 - Total: RM31,960. - The Average room rate per room ➔ Total: RM31,960 divided by 60 rooms = RM532.67 i.e. RM532 per room. [85] As this average room rate in the 83-day period is derived from the Applicants’ own advertised rates, I find that the average room rate to use to ascertain the Applicants’ income in the 83-day period, made in mitigation, is RM532. [86] This higher amount of RM532—higher than the RM200 that the 1st Applicant testified to, and higher than the RM300 that she testified that they were charging to compete with other Homestay rates, and higher than even the RM400 submitted by MBPP in MBPP’s Written Submissions—benefits MBPP. This amount of RM532 benefits MBPP because, the amount to be deducted in mitigation against the maximum amount that the Applicants could have made, is higher, which makes the damages awarded lower. In other words, when the RM532 average rate is used, MBPP’s liability is lower. [87] I therefore find that the amount in mitigation that should be deducted from the loss of income head of damage is 3,569 rooms x RM532 = RM1,898,708. Conclusion for the first head of damage—Loss of income [88] Under the first head of damage—loss of income in the 83-day period—I assess damages in the amount of: S/N 4o17cr6Q/EuQvurVrEfqPw Page 30 of 41 RM2,593,919.30 (the maximum income that the Applicants could have made in the 83-day period, with the rounded-down occupancy rate of 70%) less RM1,898,708 (the highest amount to be deducted in mitigation) equals RM695,211.30. SECOND HEAD OF DAMAGE—IDLE LABOUR COST [89] The Applicants assert that their employees were idling. When MBPP cancelled the Permit, the Applicants’ employees still had to be paid their salaries, with statutory contributions like EPF and SOCSO. When they were no longer permitted to operate as a Hotel, their employees such as those in the Butler Services position, could not perform their work. They operated as a Homestay, which had no butler services. [90] The Applicants asserted that apart from Security and Restaurant Services, all other employees were idle, because they were not permitted to provide Hotel-level services. [91] The Applicants produced evidence of their list of employees and their salaries and statutory contributions, submitting that they should be compensated for having to continue to pay their employees. [92] MBPP, on the other hand, counter-argued that the Applicants admitted that the Applicants were operating. They were in business. Their employees were working. And since the employees were working, they should be paid. S/N 4o17cr6Q/EuQvurVrEfqPw Page 31 of 41 [93] I find that it does not matter whether the Applicants were providing Hotel services or Homestay services—their employees worked, in the mitigation exercise, during the 83-day period. I find that this second head of damage of idle labour cost does not constitute damages because the Applicants’ employees had to be paid for the work that they were performing in the 83-day period, in any event. I therefore award no damages under this second head of damage. THIRD AND FOURTH HEADS OF DAMAGE—IDLE STATUTORY CONTRIBUTIONS [94] The same arguments were canvassed by the Applicants and MBPP under these two heads of damage. [95] I am of the view that these two heads of damage are not separate from the second head of damage for idle labour cost. These statutory contributions are a part of the Applicants’ labour cost. [96] For the same reasons that I award no damages under the second head of damage of idle labour costs, I also award no damages under these third and fourth heads of damage. FIFTH HEAD OF DAMAGE—IDLE ASTRO CHARGES [97] The Applicants submit that since they were not permitted to operate as a Hotel, they did not provide ASTRO services to their guests. Also, only the television (TV) in the reception lobby was turned on, not the TVs in the rooms. S/N 4o17cr6Q/EuQvurVrEfqPw Page 32 of 41 [98] MBPP replies that it produced photographs of the Applicants’ reception lobby, which reveals that their lobby had a TV, and it was on. As such, the Applicants must pay the ASTRO charges. [99] I similarly find that this head of damage of ASTRO charges does not constitute damages because there is no evidence that ASTRO services were not used at all by the Applicants when they continued to do business in the 83-day period in mitigation. I therefore award no damages under this fifth head of damage. SIXTH HEAD OF DAMAGE—IDLE AND WASTED RENTAL PAID TO THE MARITIME WATERFRONT PROJECT JMB [100] The Applicants assert that the rent that they pay to the Maritime Waterfront Joint Management Body (JMB) is the rent for the reception lobby; the common area. When the Permit was cancelled, the Applicants could not utilise the lobby as the Hotel lobby. The Applicants could no longer sell their room-nights at Hotel rates. The rent paid to the JMB was, as such, wasted rental. [101] MBPP argued that the photographic evidence is irrefutable. The Applicants were continuing to operate. The reception was manned by desk officers. The Applicants were obviously doing business. Surely the rent paid to the JMB was not wasted rental. [102] I reiterate that I find that the Applicants were operating their business in the 83-day period. Whether they were operating as a Hotel (as MBPP asserts) or as a Homestay (as the Applicants allege)—is not important for this finding. The Applicants had a contractual obligation to pay rent to the JMB. I find that MBPP should not be made to pay S/N 4o17cr6Q/EuQvurVrEfqPw Page 33 of 41 (compensate) the Applicants for the rent that they (the Applicants) had to pay the JMB. I find that the Applicants’ rent to the JMB does not constitute the damages that MBPP is liable for to the Applicants. I therefore award no damages under this sixth head of damage. SEVENTH HEAD OF DAMAGE—APPORTIONED PERMIT CHARGES [103] The Applicants’ position is that the Permit cost them RM2,400 for a year. They were not permitted to operate as a Hotel for 83 days. The portion of the yearly charges concerning the 83-day period is calculated thus— RM2,400 X 83/365 = RM545.75 [104] The Applicants submit that since the Permit was cancelled, prohibiting them from operating as a Hotel for the 83-day period, this amount of RM545.75 should be returned to them. [105] MBPP argues that the Permit was for the term of one year—

1.11.2015 to 30.10.2016. The yearly charges should not and cannot be prorated for the Applicants’ own purposes. [106] Further, the Applicants did not pray for the refund of this RM545.75 amount in their Order 53 Statement. MBPP argues that all prayers for reliefs and remedies must be “pleaded” in the Order 53 Statement. [107] Order 53 Rule 3 of the Rules Of Court 2012 requires the Applicants to support their application for leave to apply for judicial review with a statement. The statement (usually called an Order 53 Statement) must contain, among other things, the reliefs that the Applicants sought. MBPP S/N 4o17cr6Q/EuQvurVrEfqPw Page 34 of 41 asserts that the refund of this RM545.75 amount was not one of the reliefs the Applicants asked for. [108] I find that this item—the refund of the apportioned Permit charges—does not constitute damages, because damages are to put the Applicants back to the position that they would have been in had there been no wrongful Permit cancellation. Had there been no Permit cancellation, the Applicants would have had to pay the Permit charges anyway. FURTHER DAMAGES [109] The Applicants sought further damages for resumption-of-business costs, loss of reputation and exemplary damages. Resumption-of-business costs [110] I am not minded to award any damages for the resumption-of-business costs, because the Applicants were continuing to do business in the 83-day period. They continued to operate, even if it was, as they asserted, to mitigate their losses. [111] It was not as if the Applicants completely ceased their operations, and then later had to start their business up again. If that was what transpired, I can understand that they may had to incur extraordinary costs when they resumed their business after the 83-day period. But that was not the case. [112] The Applicants argued that they ceased their “Hotel” business and downgraded to a “Homestay” business for the 83-day period. After the 83- day period, they assert that they incurred the resumption-of-business costs. I find, on the contrary, that they continued to operate their business. S/N 4o17cr6Q/EuQvurVrEfqPw Page 35 of 41 The only difference was that in the 83-day period, they sold their room-nights at a reduced rate. [113] More significantly, the Applicants did not produce evidence to support their assertion of incurring this resumption-of-business costs, for me to consider if they should be awarded damages for it. As there is no material on which I can consider this category of loss, I do not award any damages for resumption-of-business costs. Loss of reputation [114] As for the loss of reputation, I accept that the Applicants were in the hotel and tourism industry, where their reputation and name were very important factors in the success of their business. [115] In the same vein, however, there is scant evidence that the Applicants’ reputation was tarnished because the Permit was cancelled. There was no evidence that it was public knowledge that the Applicants’ Permit to operate their business was cancelled. [116] As such, I also do not award damages for the alleged loss of reputation. Exemplary damages [117] Exemplary damages are additional damages that can be ordered against a party—to punish them, to deter them, or to show the Court’s displeasure towards their behaviour. [118] One of the categories of conduct which may attract exemplary damages is “oppressive, arbitrary or unconstitutional action by the servants of government”—the celebrated expression propounded by Lord S/N 4o17cr6Q/EuQvurVrEfqPw Page 36 of 41 Devlin in the landmark House Of Lords case of Rookes v Barnard And Others [1964] AC 1129 at 1226; [1964] 1 All E R 367; [1964] 2 WLR 269; [1964] 1 Lloyd’s Rep 28. [119] In this judicial review proceeding, MBPP is the state authority that is empowered to issue the Permit to the Applicants. MBPP serves the government, whose purpose is to serve the public. As Lord Devlin proffered (also at [1964] AC 1129 at 1226)—“the servants of the government are also the servants of the people and the use of their power must always be subordinate to their duty of service”. [120] MBPP’s conduct, leading up to this judicial review proceeding, and even in the course of the proceeding, is the pertinent factor to consider when deciding whether to award exemplary damages—Sin Heap Lee-Marubeni Sdn Bhd v Yip Shou Shan [2005] 1 MLJ 515 (CA); [2005] 3 AMR 570; [2004] 4 CLJ 35; [2004] 2 MLRA 21. [121] In the context of granting exemplary damages, these are my findings—

When MBPP cancelled the Permit, the Applicants wrote to MBPP, asking MBPP to reconsider their decision. The Applicants wrote (by letter dated 22.4.2016) to the pertinent departments and persons (officers). But MBPP disregarded their letter.

The Applicants wrote again (by letter dated 29.4.2016) to MBPP’s “Pengarah Bahagian Pelesenan” (Director of the Licensing Department). MBPP did not respond to this letter either. S/N 4o17cr6Q/EuQvurVrEfqPw Page 37 of 41

Then the Applicants, this time through their solicitors, wrote yet again (by letter dated 3.5.2016) to MBPP, asking MBPP to reinstate the Permit. MBPP again did not even dignify the request with a reply. [122] I find that MBPP’s failure or refusal to respond is conduct that was improper, particularly for a government body whose reason for existence is to serve the public. [123] Further, I find that despite the Federal Court’s ultimate judgment in the Applicants’ favour, affirming the finding that MBPP is liable for damages, MBPP’s 2nd witness (Azman Bin Sirun), who is MBPP’s enforcement director, when he testified during the AOD proceedings—— obstinately answered questions as if MBPP had done nothing wrong; that the Applicants had suffered no loss or damage; that the Applicants should not be given any damages at all. [124] Generally, conduct such as refusing to tender an apology, causing devastation to persons and commercial entities, persistently and petulantly causing adverse effects on the other party, and even an indifference or sheer disregard for the opposite party—are conduct that must have a bearing on damages. Such conduct can persuade the Courts to increase the amount of damages to be awarded, by way of exemplary damages against the party who demonstrates or exhibits such conduct. [125] MBPP attempts to downplay its conduct by submitting that if it made a mistake, its only mistake was to cancel the Permit. The sole reason for cancelling the Permit was because the Applicants’ application for a Planning Permission to convert the usage of their premises into a S/N 4o17cr6Q/EuQvurVrEfqPw Page 38 of 41 “Hotel” was rejected. But it was MBPP itself who rejected the Applicant’s application for the Planning Permission. [126] Put differently, MBPP gave the Applicants the Permit to operate a Hotel. The Applicants proceeded to invest money into the venture and to operate their business with the Permit granted. However, when the Applicants applied to convert the usage of their premises to a “Hotel”, to formalise or legitimise their business operations, MBPP rejected the Applicants’ application. Worse, MBPP used that very reason to cancel the Permit, thus jeopardising the Applicants’ business. [127] I find that MBPP’s conduct, before and at the judicial review proceeding, was sufficiently oppressive, to warrant an award of exemplary damages against them. [128] I must say here that I am not making these remarks above in the context of liability. MBPP’s liability to pay damages was already finally affirmed by the Federal Court. I make these remarks purely in the context of assessing damages i.e. that MBPP’s conduct—before and during the judicial review proceeding—bears upon the assessment of the quantum of exemplary damages to be awarded. [129] On the quantum of exemplary damages, the case law authorities that both guide and bound me, prescribe a percentage of 25% of the total compensatory damages assessed and awarded as damages—(1) Sin Heap Lee-Marubeni (supra); and (2) Sambaga Valli (supra). Conclusion for exemplary damages [130] For exemplary damages, guided and bound by the case law authorities which prescribe 25% of compensatory damages, I award a S/N 4o17cr6Q/EuQvurVrEfqPw Page 39 of 41 lump sum amount of RM170,000.00, which is approximately 25% X RM695,211.30 (the amount of compensatory damages under the loss of income head of damage). [131] The exact calculation is 25% X RM695,211.30 = RM173,802.82. Again, for the benefit of MBPP, I round-down that amount to RM170,000.00. CONCLUSION [132] Under the first head of damage—loss of income: I award the amount of RM695,211.30. [133] I do not award any amount in damages under the other heads of damage that I was asked to consider. [134] Under further damages, which the Applicants seek under these three heads of damage—resumption-of-business costs, loss of reputation, and exemplary damages—I am of the view that only exemplary damages are warranted. [135] I award a lump sum amount of approximately 25% of the total compensatory damages of RM695,211.30, which I rounded down to RM170,000.00. [136] The aggregate amount of damages awarded that MBPP is ordered to pay the Applicants is therefore RM865,211.30 (RM695,211.30 + RM170,000.00). S/N 4o17cr6Q/EuQvurVrEfqPw Page 40 of 41 [137] As for costs, I order the amount of RM100,000.00 to be paid by MBPP to the Applicants by 31.1.2024. Costs are subject to the allocatur. Dated: 7 March 2024 KENNETH ST JAMES Judicial Commissioner Penang High Court Counsel/Solicitors: For the Applicants: Ong Yu Shin, Lim Wooi Ying [Messrs The Chambers of Yu Shin Ong (Georgetown)] For the Respondent: Karin Lim, Murgan D. Maniam, V. Thanganachiar [Messrs. Presgrave & Matthews (Penang)] Legislation referred to:

Order 24 of the Rules Of Court 2012 2. Section 114(g) of the Evidence Act 1950 3. Order 53 Rule 3 of the Rules Of Court 2012 Cases referred to:

Goo Sing Kar v Dato’ Lim ah Chap & Ors [2013] 3 MLJ 374 (CA); [2013] 1 AMR 200; [2013] 2 CLJ 936; [2013] 3 MLRA 311 S/N 4o17cr6Q/EuQvurVrEfqPw

Datuk Mohd Ali Hj Abdul Majid & Anor (both practising as Messrs Mohd Ali & Co) v Public Bank Bhd [2014] 4 MLJ 465 (FC); [2014] 4 AMR 301; [2014] 6 CLJ 269 3. Sambaga Valli a/p KR Ponnusamy v Datuk Bandar Kuala Lumpur & Ors and Anor Appeal [2018] 1 MLJ 784 (CA); [2018] 4 AMR 745; [2018] 3 MLRA 488; [2017] CLJU 500 4. Tham Cheow Toh v Associated Metal Smelters Ltd [1972] 1 MLJ 171 (FC); [1972] MLRA 26; [1972] CLJU 153 5. Chaplin v Hicks [1911] 1 KB 786 (UKCA); [1911-13] All ER Rep 224; 105 LT 285 6. Gentali (M) Sdn Bhd v Kawasaki Sunrock Sdn Bhd (No 3) [1998] 5 MLJ 409 (HC); [1997] AMEJ 0032; [1996] 4 CLJ 813; [1997] 5 MLRH 694 7. PSAA Holdings Sdn Bhd v Petronas Lubricants Marketing (Malaysia) Sdn Bhd [2022] AMEJ 0832 (HC); [2022] CLJU 1354 8. Rookes v Barnard And Others [1964] AC 1129 at 1226; [1964] 1 All E R 367; [1964} 2 WLR 269’ [1964] 1 Lloyd’s Rep 28 9. Sin Heap Lee-Marubeni Sdn Bhd v Yip Shou Shan [2005] 1 MLJ 515 (CA); [2005] 3 AMR 570; [2004] 4 CLJ 35; [2004] 2 MLRA 21 S/N 4o17cr6Q/EuQvurVrEfqPw