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Sabindo Open Space Trial – Day 8 June 26, 2009

Posted by wong jimmy in Open Space.
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DAY 8                                         NOTES OF PROCEEDINGS                    19 JUNE 2009

9.15 am

CHONG SUI JIN & 9 ORS

v

AGGASF SDN. BHD.

& JERAMAS SDN. BHD

v

MAJLIS PERBANDARAN TAWAU

 

Civil Suit No. T(21) 52 2005

Civil Suit No. T(21) 53 2005

 

Datuk: YA (Yang Arif), parties are as before. Before I cross examine with defense witness, I’d like to deal with

            The last proceedings yesterday regarding the Bar Table about the Plaintiffs being present and I have

            dealt with that, I would like that part to be deleted and I’m still waiting for YA’s decision. 

 

Judge: I don’t quite understand your application for that statement to be deleted. You’re talking about the

            Plaintiff’s not being present or they are not interested in this case?

 

Datuk: It is a statement from the Bar Table not being present. I’m talking about…

 

Judge: I think it’s trite that the court would not take cognizance to that part. 

 

Datuk: Much obliged.

 

Witness DW2 Mr. Alex Kong Hui Chieng called – Sworn statement of truth in English.

 

Cross Examination

 

Datuk: Mr. Alex Kong, good morning. Were you heavily involved with the government and the 2 JV projects?

 

Kong: My company was invited by the government to submit the JV (Joint Venture) proposal.

 

Datuk: Question repeated. Were you heavily involved with the 2 JV projects?

 

Kong: We only submitted the proposal to the government. It is up to the government how they want to deal with

           it. 

 

Datuk: Mr. Kong, you are not answering my question. I’m asking for the 3rd time. Were you heavily involved?

 

Kong: My Lady, we only negotiate the terms and conditions of the JVA (Joint Venture Agreement).

 

Datuk: YA, since we put in peace that the Defendant does not answer my question – ask the court to invite him

           to answer the question?  

 

Ronny: My Lady,  if my learned friend can explain the meaning of “heavily involved” as the Defendant only

            dealt with the negotiation of the terms and condition. Is that considered heavy or light? Perhaps my

            learned friend would like to explain.

Judeg: Maybe you can just rephrase the question.

 

Datuk: Who else from your company was involved in the negotiation of the two JV projects?

 

Kong: My Lady, in Aggast Construction Sdn Bhd, I was the one involved. And in Jeramas Sdn Bhd., there

          was somebody that with the government – because I’ve bought the company from some other people

          after they entered an agreement with the government. I was not the one who negotiated with the

          government.

 

Datuk: Mr. Kong, you are not the Managing Director of these 2 companies.

 

Kong: Yes My Lady.

 

Datuk: Is it fair to say that you know the terms of these 2 JVA very well?

 

Kong: Yes, My Lady.

 

Datuk: And you have negotiated single handedly with the 2nd Defendant on behalf of Aggasf Construction.

            Now, you knew right from the outset, the project was to build shop houses on open space, didn’t you?

 

Kong: According to the 2 JVA approved by the Minister of the Local & Government Housing that was entered

           between the 1st Defendant and 2nd Defendant in 1996, the State Government have agreed to alienate the

           land for commercial development.

 

Datuk: Are you  saying that you knew from the very beginning that your company was going to build shop

            houses on the open space? I’m only asking your knowledge about the JVA on open space.

 

Kong: My Lady, we were not the owner of the land. We are only the JV developer of the project. Whether open space or not open space, that is up to the Government and MPT (Majlis Perbandaran Tawau) to say.

 

Datuk: Oh I see. May the witness be shown Page 83 of DBD and Page 103 of DBD. Can you please look at the

           1st recital at 2nd paragraph. Can you read it out at Page 83.

 

Kong: *Reads out* “The Town Council is the…and the government of Sabah have agreed to alienate the

            land…to the council.”

 

Datuk: So what is the said land here then?

 

Kong: The government said that it’s open space.

 

Datuk: Yes. And you knew that its open space and you were going to develop buildings on open space, isn’t

           that correct?

 

Kong: The land owner is the government. If the government asks me to develop any land, I will develop.

 

Datuk: So that means if the government asks you to demolish the “istana” and build a discoteque on it, you

           would also do so?

 

Kong: If the Government or Council as me to demolish those 2 beautiful buildings and they paid me the

           money, I would do so.

 

Datuk: So that means if the Council asks you to demolish the “istana” and build a disco tech on it, would you

           also do so?

 

Kong: My Lady, unless I was given this sort of instruction by the Council to do so, because Council is the land

          owner. I cannot say if I will do it or not. I also cannot answer those questions “IF” this and that.  

 

Datuk: Just now you mentioned about the 2 beautiful buildings.

 

Kong: My Lady, that is not the answer to the question.

 

Judge repeats the questions and answers asked earlier. 

 

Datuk: What are the 2 beautiful buildings were you referring to earlier?

 

Kong: My Lady, since the 2 JV have been mutually been terminated, Block D belongs to the State Government

          of Sabah, and Block C belongs to the Council.

 

Datuk: Are these the 2 beautiful buildings you’re referring to?

 

Kong: Yes.

 

Datuk: I see. Now, did you have consent from the registered owner to this 2 JVA in respect of Block’s A and B?

 

Kong: Block A and B, according to the agreement, yes.

 

Datuk: Can you refer to me where in the JVA it states that the registered owner consented?

 

Kong: *Flips pages to find answer* According to the JVA, Clause 3(vi) under the Council’s duties and

           obligations at Page 106 of the JVA in the Bundle of DBD. “The Council shall give vacant possessions to

           the developer within 2 months of the approval of the development plan”.

 

Datuk: You always seem to have an answer but always to the wrong question. I’d like to repeat my Q. Did you

           have consent from the registered owner to build shop houses on Block A and B?

 

Kong: According to the 2 JVA, My Lady, yes.

 

Datuk: And you confirm that you have consent based on Clause 3(vi) of Page 106?

 

Kong: Yes.

 

Datuk: I’ll leave that to submission. I’ll move on. Can you tell the court, in respect of Block D, what are the

           Council’s entitlement out of it?

 

Kong: Block A and D is under Jeramas Snd Bhd. The Council’s entitlement on Block D is given to Block A instead of Block D – the whole Block D is given under Jeramas Sdn Bhd.. Block D belongs to Jeramas Sdn Bhd. That’s what the agreement says.

 

Datuk: So you confirm that the Council will get O entitlement from Block D?

 

Kong: It’s not true. The entitlement is given on Block A.

 

Datuk: What about Block D?

 

Kong: I’ve given my answer.

 

Datuk: What is your answer please?

 

Kong: Block D belongs to Jeramas.

 

Datuk: Exclusively, correct?

 

Kong: That was agreed by the 1st and 2nd Defendant.                                                                         

 

Datuk: And that was also agreed that the Council will get nothing out of the agreement – only 6 out of the 12

            units from Block A. Can you confirm that?

 

Kong: My Lady, that was agreed by both parties.

 

Datuk: Ya, so you agreed. Now in respect of Block E, can you tell the court what are Council’s entitlement?

 

Kong: My Lady, I need to explain that the JVA has 3 buildings to be constructed which is Block B, C and E.

           The Council’s entitlement is in Blcok B. 

 

Judge: So how does that answer the question?

 

Kong: The answer is in Block B.

 

Datuk: So you’re saying that the Council will get nothing out of Block E?

 

Kong: My Lady, that was agreed by the Council.

 

Datuk: So the answer is yes.

 

Ronny: My Lady, the answer from the witness is vey clear. My learned friend cannot impose that the answer is

            yes.

 

Judge: Unless he wants to press.

 

Ronny: Yes.

 

Datuk: Yes.

Datuk: So the answer is yes, is that correct?

 

Kong: I said that the answer is in Block B – its not that the Council gets nothing, Its not like that.

 

Datuk: It is correct that the Council gets nothing from Block E?

 

Ronny: I object to this line of questioning. It is trite law that in that in construing an agreement – that entire

            agreement must be looked at together and not in isolation. It is unreasonable fro my learned friend to

            detach one section of the agreement and make it as if the only agreement to the parties to the agreement.

            The witness have given ample answers to the fact that the entitlement of the Council or the government

             is clearly stated in the agreement. Much obliged.     

 

Datuk: YA, there’s no reason why I cannot question…I haven’t come to council’s entitlement…My learned

            friend can confirm whatever in re-examination. And this is cross examination and this is my floor.

 

Judge: Objection overulled.

 

Datuk: It is correct that the Council gets nothing from Block E?

 

Kong: My Lady, my answer is the same.

 

Datuk: YA, I cannot understand the answer.

 

Kong: The Council’s entitlement is on Block B. It is clearly stated in the JVA and agreed by the Council.

 

Datuk: So do you agree with me that the Council’s entitlement for Blocks B, C and E are only 6 out of 10 units

            in Block B?

 

Kong: Yes My Lady.

 

Datuk: Much obliged.

 

Datuk: You knew that under the JVA, you cannot build commercial shop houses on the open space which was

            why you need to get the land converted and alienated to the Council first. Do you agree? 

 

Kong: My Lady, only Council, the land owner or the State Government can answer this question. I’m only the

          developer. As far as the land is concerned, I have nothing to say.

 

Datuk: Please look at Page 85 of DBD. Can I invite your attention to Clause 3, Condition Precedent. Now are

           you not bound by Clause 3 of this agreement?

 

Kong: My Lady, that is the duties and responsibilities of the land owner. To my understanding, this condition

           precedent is like that. Because sometimes government land has been committed to a 3rd Party. If the

           government has entered another agreement with another party, so they say that, that the agreement

           cannot be enforced because the land has previously been committed to other people. Like this case, the

           land does not belong to anybody – it still belongs to the State Government and Council. That’s why they

           put condition precedent – because the government doesn’t want to be sued.  

 

Datuk: Now, when you went into possession of the site, was the land already converted and alienated?

 

Kong: My Lady, that is under the jurisdiction of the land owner of the State of Sabah.

 

Datuk: Was or was not the land converted and alienated when you entered the site?

 

Kong: I don’t know.

 

Datuk: You are aware that this condition precedent was in the process of being complied with during the time

           you entered the site.

 

Kong: My Lady, only MPT can give the answer.

 

Judge: As a developer?

 

Datuk: I’d like YA to observe the demeanor of this witness.

 

Datuk: Do you remember that you swore that the condition precedent was being complied with. Can you

            remember that?

 

Kong: My Lady, I repeat again. It is the land owner’s responsibility and duty to alienate the land for the

          developer to carry out the project/development. I mentioned earlier that the government has agreed to

          alienate the land fro commercial purposes. I have to put a trust on the government.

 

Datuk: You are avoiding my question. Do you remember that you swore that the condition precedent was being

           complied with. Can you remember that?

 

Kong: It has to be complied by the land owner and not me.

 

Judge: Do you need to refer to the affidavit?

 

Datuk: I’ll show this witness the affidavit – but in the mean time I would like to move on.

 

Datuk: Do you know that in your case that the condition precedent is still in the process of being complied

            with?

 

Kong: —-

 

Datuk: You remember your lawyer has written a letter to the Council? Pages 58 to 60. Have you seen that letter before? I believe he C.C’d it to you?

 

Kong: From my understanding, land application submitted by the land owner cannot be just be rejected like that – because that land application was directed by the 3rd Party but not the Land Utilisation Committee.

 

Judge: Do you remember your lawyer writing this letter?

 

Kong: Yes.

 

Judge: Ok, that’s the question.

 

Datuk: Do you remember the letter 9 February 2006 – which is the letter you wrote in reply to your solicitors? At Page 61. May I invite your attention to Paragraph 3? “Land and Survey Dept., the fact that we are constructing on government reserve and open space – we further seek to…in respect to our JVA?” Is ther any reply from your lawyer to this letter?

 

Kong: I don’t know.

 

Datuk: But are you aware of this letter, Page 61, DBD2?

 

Kong: Yes.

 

Datuk: YA, with you permission, I’d like to tender this letter at Page 58 to 60 at DBD2 as an exhibit – the letter from Ronny Cham & Co. dated 9 February 2006 – P33.

 

Judge: I believe there is no objection? 

 

Ronny: No objection.

 

Judge: This letter will be P33.

 

Datuk: And the reply from MPT to Ronny Cham and Co. dated 6 March 2006 to be P34?

 

Judge: P34.

 

Datuk: Much obliged.

 

Datuk: Now, I’d like to come back to your answer on the affidavit sworn by you in the condition precedent.

            Now, do you remember that on the 8 February 2006 – you have sworn 2 affidavits in this proceedings on

            the Plaintiff’s injunction against you? And in particular – paragraph 12 where you have sworn that the

            condition precedent is still in the process of being complied with.

 

Kong: Yes My Lady – this is still the duty and responsibility of the land owner to comply with this condition.

 

Datuk: So you knew as far back a February 2006 the condition precedents of the JVA have not been complied

            with, am I right?

 

Kong: I don’t know.

 

Datuk: You mean to say that you don’t know what you were swearing? YA, to be fair, maybe I’ll show this

            witness the particular witness the paragraph which he swore to.

 

Kong: My Lady, the land owner is still in the process of being complied with. It’s the duty and responsibility of

           the land owner – that is the MPT.

 

Datuk: You are avoiding my question again – Can you now confirm that you knew as far as February 2006 that

            the condition precedent have not been complied with?

Kong: My Lady, I still maintain with the main JVA. The State Government of Sabah have agreed to alienate

           the said land to MPT for commercial development. Whether MPT have complied with this and change 

          anything, I’m not in the position to know – I trust the government. My duty is to complete the building

          within a certain period and deliver the entitlement to MPT and 3rd Party purchases.

 

Datuk: You mean to say you simply do not want to know whether the Council has complied?

 

Kong: My Lady, I don’t want to know.

 

Datuk: Isn’t it also your interest to make sure that the Council can comply and has in fact complied?

 

Kong: MPT is the owner and the government department under the Municipal Council. I trust them. They

          should be able to comply as they entered the agreement with the government. I cannot keep on asking the

          Council whether they have complied with it or not. The Council should know its duties and

          responsibilities under the JVA. Its only the duty of the developer to remind them again and again and

          again. Council should be able to read the terms and conditions of the JVA. 

 

Datuk: Since you said you simply do not want to know if the Council has complied in getting the alienation of

            the land. Likewise, you simply do not want to know whether the restriction on the construction of the

            buildings have been removed correct?  

 

Kong: I do not agree.

 

Datuk: Why?

 

Kong: Because the State government of Sabah has agreed to alienate the land to MPT to develop the land as

           commercial development. And they mention that the Council is the beneficiary owner.

 

Datuk: So don’t you agree whether the restriction has been removed or not depends on whether the land has                    

            been converted and alienated or not.

 

Kong: Again, it is the duty and responsibility of MPT. I do not know if they convert it, they change it, it is up to

            them what to do.          

 

Datuk: My question pertains to your knowledge on commercial alienation and restriction. I did not ask you

            anything on duty. I’d like to ask you again, that since you do now know or do not want to know if the

            land has been converted and alienated or not, likewise you also do not know whether the restriction on

            the land has been removed or not.

 

Kong: My Lady, the State Government of Sabah has agreed to alienate the land to MPT to develop the land as

           commercial development. It is only a condition precedent to be complied by the MPT, It is only a

           procedure to get it done, I cannot interfere, I cannot instruct court what to do. I have no right what to do

           as a JV partner.

 

Datuk: I leave it for submission. May the witness be shown Pages 14, 15 and 16 of PBD2. Please look at item 4

            of your letter on Page 13 and 15 exactly the same thing. Can you read it please.

 

Kong: *Reads Letter* “In accordance with Clause 3 of the JVA, we have successfully converted the said land for commercial use…July 2004’.

 

Datuk: “We” in this case means You, the developer. The word “We”, who did you refer to?

 

Kong: “We” in this case means the MPT and the developer.

 

Datuk: Please refer to page 14 again – 2nd last paragraph “Since the director of the Town and Country Planning…” – The word “We strongly urge the Town Council to approve our development plan without hesitation” – Who is “We”?

 

Kong: The developer.

 

Datuk: Look at your first line of the letter again – you use the word WE. Who did you refer to?

 

Kong: Developer.

 

Datuk: You agree with me that these are letters of appeal to the Council to reconsider an approve the

           development plans sent by you?

 

Kong: Yes, My Lady.

 

Datuk Coming back to the 2nd last paragraph of Page 14 and 16 of PBD2, “We strongly urge the Town Council

           to approve our development plan without hesitation”. You asked the Council to reconsider your

           application for the approval of the development plans, and your ground is that the Town and Country

           Planning have approved the conversion of the land. Is that correct?

 

Kong: Yes.

 

Datuk: Now, Mr Kong, earlier in the trial, the Director of Town and Country Planning, PW1, already testified

            that he NEVER approved the conversion of the lands for commercial use. And his letter is not a letter of

            approval. And he further said – to say that he have approved the conversion of open space for commercial

            use IS A LIE!

 

Ronny: I have to say, the question of which witness of telling the truth must be looked at the weight. It is not

            fair to ask this witness whether he is lying or PW1 is lying. Much obliged.

 

Datuk: I think I’m perfectly entitled.

 

Judge: Did he say that?

 

Datuk: Yes, in his witness statement of PW1, paragraph 6.

 

Judge: Q repeat.

 

Datuk: So what have you say to that, Mr Kong?

 

Kong: In fact, that witness – when he testified in this court. And when he went to KK, he called me and said,

          as a witness, he is bound to sign the witness statement prepared by the lawyer because he do not agree

          with the sentence LIE, he do not agree with that. He said that the witness statement has been prepared by

          the Plaintiff’s lawyer. He got very angry. He thought as a witness he is bound to sign this witness

          statement. That is the word, the lawyer put to his mouth to say.

 

Datuk: Mr. Kong, do you know that PW1 went through his entire witness statement, in the witness box and

           confirmed the contents before he signed his statement in the witness box, do you know that?

 

Judge: Let’s leave it for submission.

 

Datuk: Since he raised it, I have to deal with it. If not its not fair to the witness and the court.

 

Datuk:  Mr. Kong, do you know that PW1 went through his entire witness statement, in the witness box and

            confirmed the contents before he signed his statement in the witness box, do you know that?

 

Kong: What the witness told me…

 

Datuk: Please, do you know or not.

 

Kong: I do not know what he has written in the witness statement…

 

Datuk: I don’t want to spend too much time on this. I’ll move on, Now, Mr Kong, earlier on in the trial, Mr Tai

           Yun Wu, the Deputy President and Chief Engineer, PW4, has testified and this was not cross examined

           that you have made a false statement…

 

Judge: I think it has been deleted?

 

Datuk: I believe paragraph 3 and 4 is deleted, not Mr. Tai’s on false representation is not deleted, Its still there.

 

Datuk: Mr. Kong, earlier on in the trial, Mr Tai Yun Wu, the Deputy President and Chief Engineer, PW4, has

            testified and this was not cross examined that you have made a false statement…And it was because

            your false representation, the Council acted in good faith and approved your development plan. And

            they subsequently discovered that the land have not been converted to commercial use. What have you

            got to say to that? 

 

Kong: As a Chief Engineer of MPT, he should refer the letter written by the Town and Country Planning to the

           Council. That is to say, Town Planning Director has no objection to the land to be used for commercial

           purpose subject to a replacement. This is purely completely up to the Council whether they are going to

           receive and accept the letter from Town Planning or not to approve the development plan submitted by

           the developer, is purely and completely up to the discretion of the Council. No other people can force the

           government, Council and MPT to endorse and development plan without going through the process. As a

           Chief Engineer, he knows very well this process. As what the Chief Engineer has testified, he said the

           witness statement have been written in the interview by the Plaintiffs lawyer during the cross

           examination in chief. As a developer, I have no power to direct the Council to approve my development

           plan. No power, right, to instruct the MPT and I never give false representation. As Chief Engineer, he

           should know how to read and understand my letter.  

 

Datuk: I don’t know if you wish me to go through the process of tendering PW4 witness statement.

 

Judge: It has already been.

 

Datuk: Because he said everything was done by the lawyer…I’d like to seek the guidance from YA – the

            mechanical process of tendering the witness statement. Because it was very clear in the process that he

            has read, confirmed and understood the Witness Statement – whether he had any amendment or addition

            to the Witness Statement…

 

Judge: You just put to him what he said was not true.

 

Datuk: Now, Mr. Kong, you know that its not true that the witness PW4 has confirmed his witness statement in

            the witness box and he confirmed that he does not wish to make any amendment or addition.

 

Kong: During cross examination by my lawyer, Mr. tai clearly state that it was recorded and written by the

           Plaintiff’s lawyer during the course of interview by the Plaintiff’s lawyer.

 

Judge: It’s lunch time and I need a break. Come back at 2.00pm

 

Adjourned to 2.00pm.

 

Resumed at 2.35pm

 

Witness is reminded that he is still under oath.

 

Datuk: YA, parties are as before. Mr. Kong, I’m still under Pages 13 to 16 of PBD2. That’s your 2 letters of

            appeal. I refer here said “It is up to the Council to decide what to do with the development plan.” Mr.

            Kong, the complain is that you have by your letter of 14 April 2005 induced the Council to approve the

            development plan. What have you got to say to that?

 

Kong: My Lady, when the developer wants to develop his land, the developer is required to submit 16 copies of

           the development plan to the Council for approval. After the Council has received the 16 copies of DP,

           the Council will send each copies to the relevant authorities for comment such as Bomba, Waterworks,

           JKR, Electricity Dept, Town & Housing Planning, etc…When the Council has received coments from

           the various departments, te Council will forward those comments to the Planning Sub-Committee in the

           Council for discussion. If the planning Sub-Committee (I think they have a lot of Councilor there) have

           no objection to approve the development plan, then they will approve the development plan. Then after

           that, the development plan will be sent to Full Board in the Council for final approval. And one engineer,

           no matter chief engineer or president cannot approve this development plan without going through that

           process. That’s why this morning, the Plaintiff’s lawyer said I gave false information. I think the Plaintiff

           lawyer is using the word “false” to mislead this court.    

 

Datuk: Isn’t it true that the Development Plans have been rejected before?

 

Kong: No.

 

Datuk: Please tell the court what were you appealing?

 

Kong: My Lady, I’m only informed and request the Council to speed up the process because of economic

           downturn.

 

Datuk: Please read Page 13 and inform the court the contents of your letter.          

 

Kong: *Reads out* “We refer to your letter MPT…/34 dated 9 April 2005 and wish to appeal to the…on the

           following grounds”.

 

Datuk: Did you know that at this time you entered the site and continue with the construction works, there were

            strong objections against your project?

 

Kong: Repeat the Q please.

 

Judge: Q repeat.

 

Kong: The Public objected only after 6 months of the commencement of construction. And based on false

            information given by a opposition politician to instigate the public complaint. Because the opposition

            politician – using that issue to fish the votes from the public.

 

Datuk: Mr. Kong, we’re not talking about 1 single person here. Do you know that there are at least 2 local

            YB’s, 4 prominent associations in Tawau, 3 political parties, the State Cabinet, The Council and 10,000

            local residents in Tawau were against this project?

 

Kong: My Lady, all these people were mislead by 1 opposition politician to complain this project without

           finding out the truth – they just simply based on hearsay. Even some of the YB are from Barisan

           Nasional – however they did not find out the facts before they complained.

 

Datuk: Do you mean to say people like Mr. Samson Chin, PW2 also mislead the people about the project?

 

Kong: My Lady, at that material time, Samson Chin was a member of Barisan Nasional, the present

          government. He knows nothing about land matter without finding the facts of the land and simply based

          on the survey plan, went to the Cabinet and make a lot of noise.

 

Datuk: So, are you now saying that Mr. Samson Chin did not make any investigation or analysis of the project

            and gave wrong information to the State Legislative Body and the public?

 

Kong: My Lady, Mr. Samson Chin – what information he got, is not correct. As a lawyer by profession, Mr.

           Samson Chin should write to the appropriate and relevant authority to find out what is the status of the

           land before he make noise to do so. But it is fair for an Assemblyman and lawyer to do so.

 

Datuk: Mr. Kong, where did Mr. Chin go wrong in his finding?

 

Judge: Do you need this witness to…

 

Datuk: Much obliged. Mr. Kong, you fenced up the area in Block C, D and E despite public objection. What

            have you got to say to that?

 

 

Kong: My Lady, the public only complained after I started work after 6 months. According to the JVA, it is

           my duty to complete that project and deliver the entitlement for the Council and 3rd Party purchase –

           because I have sold 40% of the total shop lots.

 

Datuk: Isn’t it also your duty to ensure compliance with the condition precedent before you start work?

 

Kong: Like I mentioned this morning, the government has agreed to alienate the subject land to MPT for

          commercial development. And that Council is also that beneficial owner. And that subject land has not

          been convicted to any 3rd Party. It’s only a procedure to get it done by the land owner. Because I trusted

          the land owner, the government, they should be able to comply with that condition.

 

Datuk: Again you’re not answering my question. Isn’t it also your duty to ensure compliance with the condition

            precedent in the JVA?

 

Kong: Again, it is the duties and responsibilities of the MPT and The State Government of Sabah.

 

Datuk: Do you confirm that at the time you went into the site and commenced construction work, you didn’t

            know whether the condition precedent has been fulfilled, did you?   

 

Kong: Again, this is not my duty.

 

Judge: Do you know or not?

 

Kong: I don’t know.

 

Datuk: Earlier on you said, if Council asked you to demolish the building, you would do it.

 

Kong: Yes, if they pay me the money and instructions, I would do so.

 

Datuk: Do you remember that the Council has in fact ordered you to stop work, do you remember that?

 

Kong: My Lady, the stop work order issued to my company by the JV partners was instructed by a 3rd Party –

           that is the Cabinet, Minister of Local Government. That stop work order have been quashed by High

          Court Tawau because that is unlawful stop work order.

 

Datuk: Now, would you stop work if the order is issued by the Council?

 

Kong: My Lady, in this case, in the letter it is clearly stated that the Council was directed by a 3rd Party to issue

           the stop work order.

 

Datuk: If the Council on his own accord issue you another stop order, will you stop?

 

Kong: My Lady, so far, I have received any stop work order from the JV partner.

 

Datuk: But you have also received a stop work order from the ACLR, isn’t that correct?

 

Kong: My Lady, ACLR or any other government department are representing the State Government of

           Sabah. The State Government of Sabah is my joint venture partner. I only deal with those parties

           involved in this JV project. I did not deal with those parties that has no interest in this project.

 

Datuk: So, if that’s the case, why didn’t you stop work after you received the stop work order from the ACLR?

 

Kong: My Lady, my company did not enter any JVA with ACLR. According to what I have entered with, my

          agreement with is the TMC. It is clearly stated that the Council is the beneficial owner of that subject land

          and the Government of Sabah have already agreed to alienate the land for commercial development. That

          is the reason why I did not want to do/deal with the ACLR.

 

Datuk: And you know that the ACLR is the enforcement officers under the Sabah Land Ordinance?

 

Kong: My Lady, I don’t know.

 

Datuk: You don’t know and you choose to ignore the order of the ACLR.

 

Kong: My Lady, its not true. ACLR should write to the land owner, MPT, not the developer. Because MPT is

           the owner, the State Government of Sabah is also the owner. They should write to the State Government

           and the MPT to stop work. I’m only a JV developer to carry out the obligations according to the JVA. 

 

Datuk: Mr. Kong, were you not the developer carrying out the works in the site?

 

Kong: I don’t understand the question.

 

Datuk: Mr. Kong, were you NOT the developer that was doing construction works on site?

 

Kong: I still don’t understand My Lady.

 

Judge: What don’t you understand?

 

Kong: Its nota question. To me there is no meaning at all, that question. That’s why I cannot answer.

 

Datuk: Which part of the question that you don’t understand?

 

Kong: The whole question, My Lady.  

 

Judge: Rephrase the question.

 

Datuk: Yes. Who was doing construction works on the site?

 

Kong: My Lady, 1st Defendant.

 

Datuk: Who is 1st Defendant?

 

Kong: Aggasf Construction Sdn. Bhd. And Jeramas Sdn. Bhd.

 

Datuk: In respect of Block D, who is the 1st Defendant, please?

 

Kong: My Lady, Jeramas Sdn. Bhd.

 

Datuk: So now you say that it was Jeramas Sdn Bhd. Is doing construction works on Block D?

 

Kong: Yes.

 

Datuk: Do you remember to whom was the order of the ACLR addressed to?

 

Kong: I don’t know. I forgot already.

 

Datuk: For your information, it was to Jeramas Sdn. Bhd. and that order was ignored.

 

Kong: I already mentioned to this court, ACLR should write to the land owner.

 

Judge: You just answer the question.

 

Datuk: For your information, it was to Jeramas Sdn. Bhd. and that order was ignored, isn’t it?

 

Kong: My Lady, if that letter came from the JV partner, then I have no say. But this came from a 3rd Party who

           have no interest in that JV development. And ACLR is one of the State Government, one of the

           department representing the State Government of Sabah. If I received so many stop work order from

           other state departments, I don’t know what I would do. That’s why I have a reason to reject that letter. 

 

Datuk: Did you know that the Council was not the land owner? It was only the land applicant.

 

Kong: My Lady, according to the JVA entered between the 1st and 2nd Defendant …again and again I said that

           the State Government have agreed to alienate the land for commercial development. *expresses in a

           frustrated tone*

 

Datuk: You now very well that under the JVA, the Council has to apply to the relevant authority for alienation

            and conversion of the land.

 

Kong: I don’t know.

Datuk: Good, you don’t know. May the witness be shown Page 83 of PBD and Page 108. Can I start with Page 85. Can you please read first 8 lines of Clause 3 at Page 85.

 

Kong: My Lady, I think this morning I have given the answer.

 

Judge: Just do as requested.

 

Kong: *Reads document* “It is a condition precedent that the said agreement…converted to commercial use that the Council should use his best endeavour and with help from the developer to…the parties should always treat the same…process unless and until the said application have been rejected or unsuccessful”.

 

Datuk: So you know that the Council has to apply to relevant authorities for alienation and conversion of land.

 

Kong: Yes, the Council has to apply.

 

Datuk: Of course with the assistance of the developer, don’t you agree?

 

Kong: Unless I was requested by the land owner.

 

Datuk: Mr. Kong, do you agree that when the Council applies to the relevant authority for the alienation and conversion, there can only be 2 outcomes, that is approving the application or rejecting the application.

 

Kong: To me, there is only 1 option, according to the JVA entered between the 1st and 2nd Defendant, the State Government of Sabah has agreed to alienate the land for commercial development. The conversion and alienation of land is only a matter of procedure. If the government cannot get the approval to get the land converted, who can convert it? (Repeated twice) I trusted the government very very much on this JVA.

 

Datuk: You again are not answering the question, Do you agree that when the Council applies to the relevant authority for the alienation and conversion, there can only be 2 outcomes, that is approval or rejection.

 

Kong: In this case, I do not agree.

 

Datuk: And where the application does not comply with the provisions of the Land Ordinance, it has to be rejected, don’t you agree?

 

Kong: I have no idea about the Land Ordinance.

 

——

 

Datuk: But you certainly have the idea of the application of alienation of open space, am I right?

 

Kong: That question, only the land owner, MPT can answer, not the developer.

 

Datuk: But you are the JV partner of the JVA.

 

Kong: I’m only the JV developer, not the JV owner of the land.

 

Datuk: And you knew that you were going to develop the open space, subject to Clause 3 of the agreement.

 

Kong: My Lady, if the State Government of Sabah has agreed to alienate open space, whatsoever to MPT for commercial land, as a JV developer, I will do it.

 

Datuk: Now since the application has been rejected, and your application for Judicial Review has been struck out, why didn’t you return the project?

 

Ronny: My Lady, the Judicial Review have been mutually withdrawn.

 

Datuk: Much obliged. I stand corrected – I think the order of the day is application struck out. What’s your answer?

 

Kong: Repeat the Q.

 

Judge: Now since the application has been rejected, and your application for Judicial Review has been struck out, why didn’t you return the project?

 

Kong: This project is already academic. My company and the Council have mutually agreed the JVA and withdrawn all the plans for this project. Now, all the land and the building belong to the State Government and the Council. This JV project has nothing to do with me anymore. It is government property.

 

Judge: Can we have a short break?

 

Ended 3.50pm and adjourned to 4.15pm

 

Resumed at 4.25pm

 

Judge: Are we able to finish today?

 

Datuk: I only have 1 or 2 issues that I have to put to this witness. I’m not sure if there are any follow up question and I’ll try to cut short. Hopefully I will be able to finish in half and hour to 45 minutes.

 

Datuk: Mr. Kong, please take a look at Page 60 of PBD. Now we have earlier maintained that you will continue with the project unless there is a court order. And you also maintain that you have a valid and subsisting JVA with the council.

 

Ronny: My Lady, I think that is not correct.

 

—–

 

Datuk: I referred the witness to Page 60 of PBD. In this newspaper report, you have claimed that you would continue to work unless there is a court order and that you had a valid and subsisting JVA with the Council. Do you remember saying that?

 

Kong: Yes, My Lady.

 

Datuk: Now, you know don’t you that the situation has now been overtaken by events.

 

Kong: My Lady, yes this JV project ha been academic. I as a developer has already surrendered the whole land to the government. It is not my property anymore.

 

Datuk: Yes, I’ll come to that. And you know don’t you, that the Council has conceded and agreed to the consent judgment that the JVA between your company that the Council are invalid, illegal and unenforceable.

 

Ronny: This is unfair to the witness to answer this question – it has nothing to do with the 1st Defendant.

 

Datuk: Along the lines of my attention that situation has been overtaken by event that has adversely affected the 1st Defendants position coupled with this witness that have sworn the affidavit to set aside the consent judgment. It is only fair that I put to this witness…

 

Ronny: The pleadings as stated in the reply to the amended defence acknowledged that the JVA has been terminated. I would like to seek the direction of this Honourable Court on whether the validity of the JVA is still an issue of the court today.

 

Datuk: I think my learned friend is completely on the wrong ground. I’m not talking about termination or JVA. My question pertains to the consent judgment entered into the Plaintiff and the 2nd Defendant. And since the issue has already been adjudicated, I do not wish to reopen the issue of validity of the consent judgment.

 

Ronny: I object to the word “adjudicated”. There was only a consent judgment but without adjudication.

 

Datuk: I’m talking about the validity of the consent judgment.          

 

Judge: What do you want to ask about the validity?

 

Datuk: I’m asking him that the 2nd Defendant already conceded to the consent judgment and read out the terms to it and half way through my learned friend objected.

 

Datuk: Whether he knows that the 2nd Defendant agreed to concede to the consent judgment…And I’m still half way through the terms of the consent judgment.

 

Ronny: This witness is not a party to the consent judgment. It is unfair to ask question to this witness aas if he is bound to that consent judgment. As simple as that.

 

Datuk: But this witness ha sworn to set aside this very consent judgment I’m referring to. I humbly ask My Lady to…And my learned friend is at liberty to re-examine.

 

Ronny: The application has been adjudicated by My Lady to set aside. Why is my learned friend opening this issue up again to this court?

 

Judge: I do not see anything wrong to refer to the terms of the consent judgment.

 

Ronny: To safe time, I withdrew all of my objection.

 

Datuk: Much obliged. Now, don’t you know that the Council has conceded and agreed to the consent judgment that the JVA between your company and the Council are invalid, illegal and unenforceable. And the developments plans are invalid, illegal and unenforceable and that it should be set aside?

 

Kong: That is an event between the Plaintiff and 2nd Defendant.

 

Datuk: Please do not avoid my question. Do you know or do you not?

 

Judge: We leave the rest to submission.

 

Datuk: And since the Council already agreed to the consent judgment there is no necessity for them to agree to the termination to the JVA and the JV development plans, don’t you agree?

 

Kong: My Lady, to my knowledge, the Federal AG directed the State AG to give consent judgment to the Plaintiff and the 2nd Defendant. Now, because the land where Block C and D is situated are NOT open space, the State AG is applying or going to apply to SET ASIDE the consent judgment – because they said they have made mistake.

 

Datuk: Are you the spokesman of the State AG, Mr. Kong?

 

Kong: The AG informed us.

 

Datuk: YA, since its not in the evidence, I wont press on it. I’ll move on.

 

Datuk: Mr. Kong, do you know that there is a police report against your company against the construction of shop houses on the open space. Do you know that?

 

Kong: My Lady, I don’t know.

 

Datuk: Mr. Kong, you know don’t you that both the Government and the Council have regarded the structures that are put up by you in Block D and E are illegal structures.

 

Ronny: My Lady, this is an unfit question. Because the Local Council represents the government and they are a JV partner. In cross examination, it has already been confirmed this morning – that the JVA has been confirmed by the land government. I think my learned friend has to address this issue carefully.

 

Datuk: YA, the issue is very simple. PW4 represents the Council. PW10 represents the government. They gave evidence in this trial that as far as PW4 is concerned, the structure currently latent on the land are ILLEGAL structures and he does not allow this illegal structure to continue to remain on the land. And this witness reconfirm this statement during the stand, PW10 represents the government. He also said that construction on the Open Space (State Reserve) is illegal, the structure currently sitting on the Open Space (State Reserve) is illegal and he ordered the 1st Defendant to extract every pile and remove them from the site. And there was no cross examination on this contention on PW10. This is the evidence, a very crucial evidence in this case. I am perfectly entitled, with due respect to put this witness whether he knows that as far a the Council and the Government are concerned, this are illegal structures. Much obliged.

 

Ronny: I stand by the decision of Your Ladyship.

 

Judge: The plaintiffs are entitles to put their case.

 

Datuk: Much obliged. You know don’t you that the government regard that the structures put on Block D and E are now illegal structures.

 

Kong: My Lady, an engineer and an officer in the Municipal Council, as an officer whether he can say he has the right to say that his boss, the State Government has build the building illegally on the site – because he is only an officer. To my knowledge, he should refer back to the State Office on whether this buildings are legal or illegal.

 

Datuk: Mr. Kong, you know for a fact don’t you, that the government wanted you to extract each and very pile you drilled from the land on the site, because it was illegal and impel penalties against you?

 

Kong: My Lady, so far, I have not received any such instruction for the State Government to extract anything from the site. As a developer, My Lady, I did not do anything wrong – as far as this 2 JVA  are concerned.

 

Datuk: May the witness be shown Page 63 of PBB. Mr. Kong, you mean to say you don’t know anything about this letter? Or is it that you don’t want to know anything about this letter?

 

Kong: I already mentioned, this letter should be addressed to the land owner, MPT, not the developer. Because I’m only the JV developer…and the owner that is MPT.

 

Datuk: But now that is addressed t your company, you mean you can simply ignore the order to vacate and clear all sites?

 

Kong: My Lady, this letter is illegal to address to me, Jeramas Sdn. Bhd. They should address this to MPT.

 

Datuk: Are you now saying that you shouldn’t have anything to do with this letter?

 

Kong: My Lady, I have already mentioned many times, this project have already been surrendered to the government. Whatever they want to do with the building has nothing to do with me at all. Whatever the State Government or Council want to do, or demolish the building, it is up to the State to do so.

 

Datuk: You know don’t you that these structures are put up by you. And since this structures are regarded as illegal structures, it has everything t do with you. You must demolish and remove them from site.

 

Kong: I don’t agree.

 

Datuk: Mr. Kong you must demolish and remove them from site because you are blatantly disobeying the law.

Kong: I do not agree.

 

Datuk: Earlier on you said in evidence in chief that you have deliver up vacant possession of land to the Council. You remember saying that?

 

Kong: Yes.

 

Datuk: Can I take that you have agreed to the delivery of the vacant possession to the Council?

 

Kong: According to Page 85 of DBD, Clause 4(a) The Council‘s Duty and Obligation (a) The Land “(i)  The Council shall allow the developer to take….Implementation of the project”.

 

Datuk: You are completely on the wrong ground. I’m merely asking you to clarify that you have by virtue of you delivering up the vacant possession of land to the Council, you have agreed to the delivery of the vacant possession of the land to the Council.

 

Kong: My Lady, I did not say that I have to vacate the possession…

 

Datuk: Refers to the Notes of Proceedings Q686. “After the mutual termination of the JVA’s, did you deliver up vacant position of the land stated in those JVA?” You answered “Yes.” I just want this witness to stick to the answer given in examination in chief.

 

*Shows to witness Q686*

 

Kong: Yes, in fact I should say that with buildings to the government – Block D and E. The land with the buildings…Thank you My Lady.

 

Datuk: Mr. Kong, how can you deliver vacant possession of the land unless you demolish the structures and clear all debris and material on site?

 

Kong: My Lady, after I read the written question, I have amended the answer – land and buildings – because that all belongs to the government. With the other 3 blocks, there’s no buildings – they are vacant possession.

 

Datuk: So you would agree that no vacant possession of the land can be surrendered to the appropriate authority unless the structures on the land are demolished and removed.

 

Kong: This is up to the land owner and the State government on what they want to do with the building. Because now the 2 pieces of building and the 3 pieces of land is surrendered back to the building. I have no reason to comment on this…it belongs to the government.

 

Datuk: Mr. Kong, you know that the Council and the government have decided that they wanted you to extract all piles, clear all sites?

 

Kong: I answer again and again that I did not received from the Council (the land owner) or the State Government to extract all the structures from the site.

 

Datuk: Are you saying that you are not responsible for the structures illegally put up by you on the Block D

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Sabindo Open Space Trial – Photos June 20, 2009

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site visit

site visit

Site visit with Sabah & Sarawak High Court Judge, Lawyesr of plaintiffs and defendant

Site visit with Sabah & Sarawak High Court Judge, Lawyesr of plaintiffs and defendant

Last day of trial saw the High Court fully packed with rate payers

Last day of trial saw the High Court fully packed with rate payers

Sabindo Open Space Trial – Day 7 June 20, 2009

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DAY 7                                         NOTES OF PROCEEDINGS                    18 JUNE 2009

10.15 am

CHONG SUI JIN & 9 ORS

v

AGGASF SDN. BHD.

& JERAMAS SDN. BHD

v

MAJLIS PERBANDARAN TAWAU

 

Civil Suit No. T(21) 52 2005

Civil Suit No. T(21) 53 2005

 

9.15am – Site visit with Judge, Counsels and Parties to show Blocks A, B, C, D and E.

 

Trial commenced at 10.15am.

 

Datuk: YA, parties are as before. YA we have just been given a copy of a letter from the State AG chambers to

            the witness. And it’s quite lengthy. I’d like to take some time to go through this letter before I can ask

            him questions.

 

Ronny: I’d like to take the witness through this letter.
Judge: Do you want to conduct another examination in chief?

 

Ronny: But this is one of the Plaintiff’s letter.

 

Judge: That’s why we want to stand down this witness for you to… or if we can finish the case by tomorrow –

            we can adjourn now, take 1-2 hours?

 

Ronny: Can we come back at 1.00pm?

 

Judge: We come back at 12.00noon.

 

Datuk: Can we make it at 12.30pm?

 

Judge: Ok, come back at 1.00pm.

 

Witness Mr. Abdul Manap Haji Aneh (DW1): stand down.

 

Adjourned to 1.00pm.

Sabindo Open Space Trial – Day 6 June 20, 2009

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DAY 6                                   NOTES OF PROCEEDINGS                    17 JUNE 2009

9.25 am

CHONG SUI JIN & 9 ORS

v

AGGASF SDN. BHD.

& JERAMAS SDN. BHD

v

MAJLIS PERBANDARAN TAWAU

 

Civil Suit No. T(21) 52 2005

Civil Suit No. T(21) 53 2005

 

 

Datuk: My Lady, the parties are as before. May I begin my cross examination?

 

Judge: Yes.

 

Defendant calls 1st Witness – Mr. Abdul Manap Haji Aneh (DW1)

 

Cross Examination

 

Datuk: Have you given evidence in court before?

Abdul: No.

 

Datuk: So this is your 1st time?

 

Abdul: Yes.

 

Datuk: Where were you before this?

 

Abdul: I was in the HQ in KK.

 

Datuk: Is it true before you were posted to Tawau, you had no knowledge about the open space in Tawau?

 

Abdul: Yes.

 

Datuk: And you agree with me, that your finding on the status on the piece of land is entirely based on

            your analysis and interpretation of the documents?

 

Abdul: Yes.

 

Datuk: Let’s see if you got your findings correct. I will refer to the documents you used. Pages 1 and 2

            (D2) of DBD1. En. Abdul, you agree that in all the document prior to 10249028 are the

            background documents are the issuance for the master title PL 106210831.

 

Abdul: Yes.

 

Datuk: They really have nothing to do with the determination of the status of the land that we’re talking

            about now. Do you agree that they have nothing to do with the determination of the status of land

            that we’re talking about now?

 

Abdul: Yes.

 

Datuk: So the documents that you referred to in your analysis are the survey plan 10142098

 

Abdul: I referred to my submission plan.

 

Datuk: I’m referring to ALL your documents referred. The documents that you referred to in your so-

            called findings:

            1) 10142098

            2) PL 106290831

            3) TL 107522994

            4) Letter from the Director of Land and Survey dated 26 September 1975.

            5) Survey Plan 10124910

            Are these documents that you referred to for your so called analysis?

 

Abdul: Yes.

 

Datuk: In your analysis and your interpretation of the documents, were you able to find any title deeds that

            mentions about open space (state reserve) or any similar description about Block C and D?

 

Abdul: No.

 

Datuk: You would agree with me that it would’ve been more conclusive about the status of land if there is

             such mention in a title deed.

 

Abdul: Repeat.

 

Datuk: Since you did not find any similar description on Block C and D, if there were such description in

            a title land, would’ve been more conclusive and fetch a better value?

 

Abdul: No.

 

Datuk: Would it fetch a better value?

 

Abdul: Because he’s not seen any title deed as such.

 

Datuk: If there was such a title, would you agree that the status of land becomes more conclusive?

 

Abdul: No.

 

Datuk: Can you explain why?

 

Abdul: I cant explain.

 

Datuk: Your familiar with the Land Ordinance?

 

Abdul: Yes.

 

Datuk: Is there a difference between State Land and State Reserve?

 

Abdul: In the Land Ordinance, I have seen any words with the word “State Reserve”.

 

Datuk: What is your understand about State Land?

 

Abdul: Government Land which is unalienated land.

 

Datuk: Is that all of your understanding?

 

Abdul: I cannot give you the whole definition – have to refer to the Land Ordinance.

 

Datuk: Can I show you s4 of the Land Ordinance? What about land which have been reserved for public

            purpose? Is that State Land?

 

Abdul: No.

 

Datuk: So you agree with me that land which have not been reserved for public purpose can be alienated.

 

Abdul: Yes, same land.
Datuk: But land which have been reserved for public purpose cannot be alienated. You agree?

 

Abdul: Yes.

 

Datuk: I’d like to ask you a general question about titles. Do you agree with me that any land which falls

            outside the title land can be any type of land depends on what is described in the plan?

 

Abdul: Repeat.

 

Datuk: If a government issues a land title to somebody, i.e a bungalow, but next to his bungalow lot, it can

            be anything, school, car park, open space, etc.

 

Abdul: Yes, it can be earmarked for anything.

 

Datuk: Please look at DBD1, pages 3 and 5. What is your understanding of Page 3, that is the letter dated

            8 August 1975. Do you understand this documents? Go through Page 3, tell the court what it

            means.

 

Abdul: This letter is the area they’re talking about that is going to be issued with the draft title.

 

Datuk: Can you turn to the next page? Tell the court what this document means?

 

Abdul: To cancel the draft title.

 

Datuk: And what else?

 

Abdul: And the land is to become State Land Reserve.

 

Datuk: So in another word, do you agree with me, the then Director of Land and Survey, directed the

            District Surveyor of Tawau to cancel the draft title and treat the land as State Reserve?

 

Abdul: Yes.

 

Datuk: Can you please turn to Page 5? Can you tell the court that the then District Surveyor acted on the

            direction of the then Director of Land and Survey?

 

Abdul: Yes but the then District Surveyor should not put the Open Space word in the survey plan.

 

Datuk: Then what should be put?

 

Abdul: I don’t know.

 

Datuk: You don’t know? Ok.

 

Datuk: Now, can I come back to Page 3 of DBD1? You see there’s a hand written notes on the right

            handside of the document?

 

Abdul: Yes.

 

Datuk: With a date and signature. Can you tell the court what this note noted?

 

Abdul: This title never issued this part is now State Reserve.

 

Datuk: What else does it say?

 

Abdul: See enclosure 43 and 44.

 

Datuk: What is the date?

 

Abdul: October 1975.

 

Datuk: Do you agree with me that this 2 documents which is pages 3 and 5 of DBD1 are very important

            documents?

 

Abdul: Yes.

 

Datuk: And this 2 documents were not referred to in your findings – your letter of 6th May 2008 (D2).

            (Would you like to have a look at your letter again?)

 

Abdul: Yes. (not referred)

 

Datuk: Coming back to the draft title that you mentioned earlier on, do you agree with me that draft title

            was cancelled because the land was not available for registration under s31(c) Land Ordinance?

 

Abdul: Because it is outside the original TL.

 

Datuk: Please refer to s31(c) of Land Ordinance. You referred to that section in your letter. Do you agree

            with me that the title was canceled because it was not available for registration?

 

Abdul: No.

 

Datuk: Then do you then agree with me that it was canceled because of reasons stated in Page 4 and 5 of

            DBD1?

 

Abdul: Yes.

 

Datuk: Do you know whether there was an application in 2005 for the alienation for the same piece of

            land?

 

Abdul: No.

 

Datuk: Therefore you also do not know the outcome of that situation?

 

Abdul: No.

 

Datuk: Therefore you do not know the comment of the then District Surveyor of that application?

 

Abdul: No.

 

Datuk: And equally, you do not know the reason for the decision of that application?

 

Abdul: I don’t know.

 

Datuk: And because you don’t know about this particular application, you made no reference at all in your

            letter of 6 May 2008?

 

Abdul: Yes.

 

Datuk: Do you know that before you became District Surveyor Tawau, there was a notice to locate and

            remove from site all materials on Block D issued by the then ACLR to the developer Jeramas Sdn.

            Bhd?

 

Abdul: I don’t know.

 

Datuk: And for that reason you did not include that letter in your findings?

 

Abdul: No, I did not include.

 

Datuk: Do you know that soon after the notice to vacate, there was a re-survey of that area conducted by

            the surveyor?

 

Abdul: I know that there is a re-survey from the records.

 

Datuk: Was this mentioned in your letter?

 

Abdul: No.

 

Datuk: May the witness be shown PBD pages 64 to 69? I want to ask you, did you know that there was a

            written reply from the CM to the then YB Samson Chin about the open space in Tawau?

 

Abdul: No.

 

Datuk: If you do not know the answer, please say so. As an experienced civil servant, how many years \

            have you been in service?

 

Abdul: Since 1982.

 

Datuk: Do you agree with me as an experienced civil servant of 27 years in standing, if a CM issue a

            written writing in the State Legislative Assembly, it would have had various inputs from the

            relevant department before he issues that reply?

 

Abdul: Yes.

 

Datuk: Since this is about land matters, i.e open space, the CM must have had inputs from the Land and

            Survey Dept, do you agree?

 

Abdul: Yes.

 

Datuk: And you also did not include that document in your analysis of the status of land, referred to in

            D2.

 

Abdul: Yes.

 

Datuk: You have earlier agreed that pages 3, 4 and 5 of DBD1 are very important documents. Will you

            also agree that all the other documents which I’ve just mentioned are also important?

 

Abdul: Yes.

 

Datuk: You agree that it seems that your record is very incomplete?

 

Abdu: Which record?

 

Datuk: The record for the analysis of the status of land, is very incomplete?

 

Abdul: I guess I just based them on the documents which I was given.

 

Datuk: I’d like to come back to Pages 3 to 5 of DBD1. You agree with me that reading from these 3

            documents, it is very clear that the government as far back as 1975, already had the intention of

            treating the land as State Reserve (Open Space)?

 

Abdul: I only agree only on the State Reserve but not the open space.

 

Datuk: So in other words, in so far that you are concerned, since 1975, the government already intended to

            treat the land as State Reserve?

Abdul: Yes.

 

Datuk: Why didn’t you mention this in your letter of D2?

 

Abdul: Because the State AG gave me the copies and requested me to confirm the status of the land.

            Based on all the documents and records available in my office.

 

Datuk: Wouldn’t you agree that the intention of the government is a very important factor to be taken into

            account?

 

Abdul: Yes.

 

Datuk: And you knew about the intention of the government, yet you have chosen not to mention this in

            your analysis. Isn’t something very odd?

 

Abdul: I think, based on my letter and what I mentioned to the AG office to have the indication that the

            government have the right to reserve the land as State Reserve. (The letter itself shows the

            intention of the government)

 

Datuk: And the letter at page 5 of DBD1, clearly shows that your department had acted upon it as far back

            as 1975. Do you agree?

 

Abdul: Yes.

 

Datuk: I’d like you to look at the development plan and sub division plan. Can I ask you a general Q first.

            In a any survey for sub-division of a property development, that survey must be based on the

            development plans. Do you agree?

 

Abdul: Yes.

 

Datuk: Because otherwise, it would produce a very odd end result. Do you agree?

 

Abdul: Yes.

 

Datuk: So, you would also agree that there must first be a development plan in existence before you can

            carry the survey out for subdivision?

 

Abdul: Yes.

 

Datuk: Do you also agree that the sub-division plan and the development plan are almost mirror images of

            each other?

 

Abdul: Yes.

 

Datuk: And in the sub-division plan, the District Surveyor has to compare the development plan and the

            sub-division plan and certify that the information in the plan are the same?

 

Abdul: Yes.

 

Datuk: To be fair to you, what is stated in the development plan is a matter for the officer for the

            Municipal Council to answer.

 

Abdul: Don’t understand.

 

Datuk: Do you know why there is schools, library, etc in the development plan?

 

Abdul: No, it is for the developer.

 

Datuk: So would you agree that the most appropriate person to answer is the Municipal Council?

 

Abdul: Yes.

 

Datuk: Can the witness be shown PBD page 2? It is the development plan. For your background

            information, Mr. Tai Yun Wu, chief engineer of TMC, Tawau – has explained that the

            adjoining land under the TL 106250831…

 

Ronny: My Lady, if I’m looking at Page 2, my learned friend should not mislead the witness as it is a sub-

            division layout plan showing the off street parking requirement and off street car parks. Much

            obliged, I’m just putting the facts right.

 

Datuk: YA, bear with me for a while.

 

Judge: Come back at 11.30am.

 

Adjourned to 11.30am.

 

Resumed at 11.40am.

 

Datuk: YA, may I pray for your indulgence to refer to pages 18 and 19 of the Notes of Proceedings? And

            cross reference to page 73 to 75 of the Notes of Proceedings? May I start at Page 18?

 

Judge: Yes.

 

Datuk: YA please look at question 32 to 36 and there it becomes very clear that we are talking about

            development plans. Can YA look at your own ruling shortly before Q37 at P19.

 

Judge: Yes.

 

Datuk: And cross reference to Pages 73 to 75 (cross examination on PW4) – there is nothing on P8 at all.

 

Ronny: I stand corrected … and I withdraw my objection.

 

Judge: Objection withdrawn.

 

Cross Examination (continued)

 

Datuk: I earlier asked you to look at Page 2 of PBD, as a background information, PW4 who is the Deputy

            President and Chief Engineer of the Municipal Council of Tawau, said in his evidence (Page 2,

            paragraph 6 of PW4) that when the adjoining land under TL 106290831 measuring more or less

            31.5 acres was being developed, the then Town Board took into consideration the “esplanade” as

            open space – such as when the development have enough open space”. This is what the Chief

            Engineer of TMC had said. Can you now look at Page 2 of PBD? Can you look at the top centre of

            the portion of the land – with the description Open Space?

 

Abdul: Yes.

 

Datuk: Can you see that this development in 1973, the open space and the top center portion of the

            development have already been incorporated into the development as an open space? Can you now

            look at Page 1 of PBD. Do you agree that this 2 documents, i.e page 1 and page 2 of PBD, are

            mirror images of each other?

 

Abdul: Yes.

 

Datuk: Earlier on, you said if it is state land cannot be state reserve and vice versa.

 

Abdul: I didn’t say that.

 

Datuk: Are you now saying that state land can be state reserve? Under what circumstances can be state

            reserve?

 

Abdul: When the government earmark it as state reserve.

 

Datuk: So once earmarked, does it become land for public purpose?

 

Abdul: No. It must go through section 28 of the Land Ordinance.

 

Datuk: You agree with me, that nothing in s4 state that land can only be reserved under s28?

 

Abdul: Yes.

 

Datuk: Please look at Page 1 again of PBD. Please look at the yellow portion of Page 1 PBD. Can you

            please tell the court what is described in the yellow portion in the plan?

 

Abdul: Open Space (State Reserve).

 

Datuk: And you confirm that this plan has been approved?

 

Abdul: Yes.

 

Datuk: So it has become Open Space (State Reserve) since 2 July 1975.

 

Abdul: Yes.

 

Datuk: I believe you have an original copy of the plan. Can I have a look at it please? From the original

            copy on the plan, there is one more description at the portion of the plan marked “Open Space

            (State Reserve)”. Can you please tell the court what is it?

 

Abdul: See Plan 10128169.

 

Datuk: Now I’d like to refer you to the plan mentioned – 10128169 at Page 18 of PBD2. Do you know

            what is this plan?

Abdul: It’s the demarcation survey plan for the state reserve we are referring to.

 

Datuk: You don’t even get the title right. Can you tell the court what is states?

 

Abdul: Pengukuran Semula Sempadan State Reserve di Bandar Sabindo.

 

Datuk: So what does it mean why Pengukuran Semula?

 

Abdul: Re-survey.

 

Datuk: So please look at the yellow portion and compare this with the yellow portion of Page 1 of PBD.

           Are they of the same location?

 

Abdul: Yes.

 

Datuk: Again please look at the yellow portion page 1 PBD. The plan shows that the land marked in the

            yellow portion has been reserved as an open space. Am I right?

 

Abdul: Earmarked as state reserve.

 

Datuk: Look at the plan. – reserved as open space, am I right?

 

Abdul: For me, if a land to be reserved, it has to go to s28.

 

Datuk: You are not answering my question. I’m asking you whether this plan states that the portion

            marked in yellow is the land reserved by the state for open space?

 

Abdul: I agree. It is earmarked for Open Space (State Reserve). But it has not been gazetted as Open

            Space.

 

Datuk: But do you agree that s4 does not prescribe a way in which the lands may be reserved?

 

Abdul: No mention.

 

Datuk: So it does not prescribe on a procedure for reservation. Do you agree with me, that there is nothing

            in the Land Ordinance to state that ALL STATE RESERVE MUST BE GAZETTED?

 

Abdul: Yes.

 

Datuk: Please look at Page 73 of PBD2.

 

Judge: Do you have a long way more to cross examine?

 

Datuk: I need an hour.

 

Judge: I adjourn to 3.00pm.

 

*Witness not to discuss this case with anybody because still under cross examination*

 

Adjourned to 3.00pm.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Resumed at 3.15pm.

 

Datuk: YA, parties as before.

 

Judge: Witness is reminded that he is still under oath.

 

Datuk: En. Abdul, earlier on you agreed with me that s4 of the Land Ordinance does not prescribe in a

            way in which the land may be reserved. You also agree that there’s nothing in the Land Ordinance

            that say all state reserve must be gazetted. And you earlier on mention about reservation of state

            land by the TYT under s28. May I now draw your attention to s28 of the Land Ordinance. And my

            question is this, does the section state that ALL state land for public or for a residential purpose

            must be reserved by the TYT?

 

Abdul: Yes.

 

Datuk: Please tell the court where does it state in s28 that all state land must be reserved for public

            purpose.

 

Abdul: Section 28(1).

 

Datuk: Can you please read it out where it states that?

 

Abdul: MAY reserve.

 

Datuk: En, don’t you agree that there is a big difference between what land MAY the TYT reserve and

            what land MUST the TYT reserve?

 

Abdul: In s28 it says MAY.

 

Datuk: But don’t you agree that there is a big difference between what land MAY the TYT reserve and

            what land MUST the TYT reserve?

 

Abdul: Yes.

 

Datuk: Therefore, to say that all state lands or public or residential purposes is a figment of your

            imagination, isn’t it?

 

Abdul: We should follow what s28(1) says.

 

Datuk: What you have just now agreed that there is a WORLD of difference of what the TYT MAY

            reserve and what the TYT MUST reserve!

 

Abdul: For the public purpose only.

 

Datuk: So to say that the TYT MAY reserve public place for any land is to mean that ALL such lands, i.e.

            land reserve… is the figment of your imagination.

 

Judge: Leave that for your submission.

Datuk: I think that may be enough. I’d like to ask one more question on s28. Does s28 say that ALL

            lands that have been reserved for public purpose MUST be gazetted?

 

Abdul: Yes.

 

Datuk: Is there anywhere in s28 that says that ALL lands that have been reserved or public purpose MUST

            be gazetted?

 

Abdul: No but we are practicing the publishing the reservation in the gazette. (Repeated: In our practice,

            any state land reserved for public purpose are to be gazetted and to be published in the government

            gazette.)

 

Datuk: So, since this piece of land have been reserved, don’t you think that it should be gazetted?

 

Abdul: As I mention earlier, this piece of land is earmarked as state reserve. To make it proper open space,

            you have to gazette it and has to be published in the gazette under s28.

 

Datuk: Earlier, in your analysis of documents, you were not able to find any title deeds that has a

            description of “open space” or “open space (State Reserve)” with respect of Block C and D. You

            remember what you said? I’d like to invite your attention to pages 3, 4 and 5 of PBD? This is the

            title deed of open space. I’d like to turn your attention to page 4. Do you see somewhere in the

            middle, the rectangular land, is the land in question? Can you tell the court what is described in

            that diagram?

 

Abdul: The land referring …

 

Datuk: Can you tell the court what is the description of that land?

 

Abdul: It is a state reserve.

 

Datuk: What else does it say?

 

Abdul: Cannot see. Very blur.

 

Datuk: Okay, nevermind, I have the original copy. May the witness be shown the original?

 

Abdul: Based on this plan, it states “Open Space (State Reserve)”.

 

*Original shown to Yang Arif*

 

Judge: What does it show?

 

Datuk: Open Space (State Reserve).

 

Datuk: May the witness be shown Pages 6, 7 and 8 of PBD? This is the title deed for road reserve and car

            park. May I turn your attention to the diagram at Page 7 please, En. Manap?

 

Abdul: May I now invite your attention to the centre portion of the title?

Datuk: Are you able to tell what is described under that portion of the land? Or maybe I can help you –

            I have the original copy of the land title.

 

*Passes original copy to witness*

 

Datuk: If you look at the original copy of the diagram, please tell YA what it describes in respect of the

            portion of the land we’re talking about?

 

Abdul: Open Space (State Reserve).

 

Datuk: You agree that that “Open Space (State Reserve)” falls outside the title land, right?

 

Abdul: Yes.

 

Datuk: Very good.

 

*Passes original copy to Yang Arif*

 

Datuk: Now, if that’s not clear enough, I’d like to refer you to another title. Can you please look at Page

            24 to 26 of PBD1? Can I refer you in particular to Page 25? Please have a look at the top portion of

            the land in the diagram. And tell the court what does it say?

 

Abdul: Open Space (State Reserve).

 

Datuk: Of course you do know where Block H is, don’t you?

 

Abdul: Yes. Block H is this row… *Shows court the diagram*

 

Datuk: And right in front of Block H is the “open space (state reserve)” am I right?

 

Abdul: Yes.

 

Datuk: So just want to be precise where Block H is, please have a look at PBD1. Can you confirm that the

            “open space (state reserve)” is situated right in front of Blocks H and D?

 

Abdul: Yes.

 

*Judge confused about the situation of Block D*

 

Datuk: This Block D in the diagram is a different Block D from which is half developed although they

            used the same name.

 

Datuk: So, all this references of “Open Space (State Reserve)” in the land titles, or in the title deeds to be

            more precise, were not referred to in your “so-called” findings. Isn’t that right?

 

Abdul: Is not in my findings.

 

Datuk: And you now know that your documents that you used for analysis or findings are seriously

            incomplete.

 

Abdul: As I mentioned earlier (this morning), I made my findings on what there is in the file. So I don’t

            have the other documents.

 

Datuk: And you also agree with me that in this 3 documents, are very important documents in respect of

            the open space in question?

 

Abdul: Yes.

 

Datuk: And these documents does to show that the instruction of the THEN Director of the Land and

            Survey or contents in Pages 3, 4 and 5 of DBD1) has been acted upon.

 

Abdul: Yes, but we still go back to the original instruction of the Director of the Land and Survey.

 

Datuk: And now it has been clearly shown that the instruction has been acted upon, am I right?

 

Abdul: I still stick to the Directive of the Director of the Land and Survey to make that piece of land a

            state reserve and not open space.

 

Datuk: All the documents that I referred to, in particular the 3 titles and the plan you said you relied on,

            that is Page 1 of PBD of which you have the original copy with you now. Have a look at all the

            documents again, what I have just shown you – its very clear that the land has been EXPRESSLY

            reserved for ONE purpose only that is for OPEN SPACE. Do you agree?

 

Abdul: I disagree.

 

Datuk: You don’t agree. Okay, I put the question in a different way to you. Now, for the documents that I

            mentioned to you just now, that is the 3 titles deeds and Page 1 of PBD, are you able to find that

            the land is meant for something else other than open space?

 

Abdul: As I mentioned earlier, only earmarked, not gazetted.

 

Datuk: Are you able to find that the land in question is earmarked for anything else other than open space?

 

Abdul: Only earmarked as open space. Not gazetted.

 

Datuk: So you now agree, that so far as you are concerned, that piece of land has been earmarked as open

            space?

 

Abdul: As I mentioned earlier, to make the open space proper, you have to go through s28(1) of the Land

            Ordinance.
Datuk: En. Manap, you are avoiding my question again. I’m merely asking you to confirm to the court

            whether or not in so far as you are concerned, based on this 4 documents, the land has been

            earmarked as open space?

 

Abdul: That one, I agree.

Datuk: You agree, yes.

 

Datuk: And earlier on you also said it was the intention of the government as far back as 1975 that the

            land is State Reserve. Don’t you agree that looking at this 4 documents, that the intention of the

            government has been carried out?

 

Abdul: Although have been earmarked for open space, still is not considered unless goes through under

            s28.

 

Datuk: En. Manap, please do not continue to avoid my question. I just want to know whether the intention

            of the government as far back as 1975 has been carried out in this 4 documents.

 

Abdul: It’s not complete yet.

 

Datuk: What is not completed yet?

 

Abdul: The land has been earmarked but not the government gazette. The intention is there.

 

Datuk: Do you know that the intention of the State Government have been confirmed in the Chief

            Minister’s Reply to YB Samson Chin to “keep open space as open space” at Pages 64 to 69 of

            PBD?

 

Abdul: Yes.

 

Datuk: Do you also know that the right Honourable Chief Minister also repeated the government’s

            intention during his dialogue with the Tawau Chinese Community Leaders as stated at Page 71 of

            PBD? May the witness be shown Page 71 of PBD?

 

Abdul: I was not aware of this before.

 

Datuk: But you do know now?

 

Abdul: Only now I know.

 

Datuk: Now, as an experienced District Surveyor, do you agree with me that all these 4 documents, i.e the

            3 title deeds and the survey plans for sub-division (P1 of PBD), are all public documents in the

            sense that, anyone who makes a search and pays a fee, would be able to find out that the land in

            question is “Open Space (State Reserve)”.

 

Abdul: YES.

 

Datuk: And this 4 documents, tells the whole world that this piece of land is State Reserve Open Space.

 

Abdul: It is stated as State Land Reserve.

 

Datuk: To be fair, do you agree that it is Open Space (State Reserve)?

 

Abdul: That one I agree.

 

Datuk: And gazette notification is just another way of telling the public the same thing. Do you agree?

 

Abdul: It is proper to publish in the government’s gazette.

 

Datuk: Earlier on you said that the former ACLR has rejected the application for the alienation of the land

            in question. May I also take it that you don’t know what are the comments from the THEN District

            Surveyor in Tawau regarding the status of the land in question?

 

Abdul: I have not seen the comment.

 

Datuk: You have not seen the comment, okay. As a background information to you, PW10 (the former    

            ACLR, Mr. Philip Balasont) said in court yesterday that he rejected the application based on the

            comments from the THEN district surveyor that the land was Open Space (State Reserve). So do

            you now know that they have been 2 District Surveyors, 2 Directors of Land and Survey, 1

            Surveyor, 1 Former ACLR, 1 YB who happens to be a practicing lawyer in Tawau – ALL

            confirmed that the land in question is Open Space (State Reserve). And also his confirmation in his

            written reply from the CM that the land in question is open space. All these officers and witnesses

            based their conclusion on detailed documents and inputs from the relevant department. Are you

            now asking the court to believe YOU who have incomplete records that what all others said is

            wrong and the what you say is correct?

 

Ronny: I would have to object as what he’s just said as it is unfair for this witness. Should leave it to

             submission. It is not for this witness to comment on whether he is right or the others wrong – we

             should leave it for submission.

 

Judge: I agree with that.

 

Datuk: In the light of the documents of what I’ve shown to you, I’m bound to put it to you that your “so-

            called” finding is completely misconceived, illogical, confusing and worthless. (Deleted

            “calculated as an afterthought to confuse the Plaintiff’s claim.”)

 

Ronny: My Lady, there again it is an unfair question as the letter is addressed to the Peguam Besar Negeri  

             Sabah. Unless until the Peguam Besar Negeri Sabah is called. There is no evidence on the part of

             my learned friend to suggest what he had just said to this witness. Much obliged.
Judge: Put the Plaintiff’s case … he is not a party to this claim…

 

Abdul: I don’t agree.

 

Datuk: En. Manap, please look at your letter, P2. In the 1st paragraph where you make reference from

            Peguam Besar Negeri Sabah, may I know where is that letter?

 

Abdul: I didn’t bring the letter. It’s in the file in the office.

 

Datuk: Can you bring the letter to court tomorrow? I’d like to take a look at it?

 

Abdul: Can.

 

Datuk: Thank you En. Manap, I have no further questions.

 

Ronny: My Lady, have the Defendants have no possession of that letter from the AG Chambers, I’m sure

            my learned friend would want to ask more questions. May I ask My Lady to adjourn this case to

            tomorrow morning for the witness to produce that letter? Then I will be re-examine. My re-

            examining is very short.

 

Judge: I would like to visit the site – where this Blocks A, B, C, D and E.

 

Ronny: Tomorrow morning at 8.30am, before calling the witness?

 

Datuk: If we can stick to 9.00am?

 

Judge: Where is it? Is it walking distance? Then in that case we can walk.

            To tomorrow at 9.00am.

 

Datuk: We meet at the court house. And to do away with the attire?

 

Judge: Oh yes.

 

Adjourned till tomorrow at 9.00am.

Sabindo Open Space Trial – Day 5 June 20, 2009

Posted by wong jimmy in Open Space.
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DAY 5                                   NOTES OF PROCEEDINGS                    16 JUNE 2009

9.15 am

CHONG SUI JIN & 9 ORS

v

AGGASF SDN. BHD.

& JERAMAS SDN. BHD

v

MAJLIS PERBANDARAN TAWAU

 

Civil Suit No. T(21) 52 2005

Civil Suit No. T(21) 53 2005

 

Datuk: The parties are as before. May I call my next witness, Mr. Philip Balasom Basalant .

 

Plaintiff calls 1st Witness – Mr. Philip Balasom Basalant (PW10)

(Sworn – solemnly & sincerely declare the evidence given in this court is the whole truth, the truth and nothing but the truth in Malay.)

 

Datuk: YA, may I request any other witness other than the parties to leave the court room?

 

*Witness (Abdul Manap bin Aneh) leaves court room*

 

Examination in chief

 

Datuk: Encik Basalant, you have prepared a witness statement this morning. Can you confirm your

            signature at the bottom?

 

Philip: Yes.

 

Datuk: Can you also confirm that the contents of your statement are correct?

 

Philip: Yes.

 

Datuk: May I refer to paragraph 4 of your statement please? Before this, may I tender this as PW10?

 

Judge: PW10.

 

Datuk: May I refer to paragraph 4 of your statement please? *Reads out paragraph 4* What is your

            understanding of the word “state reserve”?

 

Philip: As an ACLR, when I received the application, I submit this application to the District Surveyor

            (Land & Survey Tawau). The feedback I got from him is the land applied for is a State Reserve

            (Open Space). So based on the comment, I rejected the application. Because anything outside the

            state land cannot be alienated. So state reserve is earmarked and reserve for the state use &

            cannot be used.

 

Datuk: Do you agree that the land was reserved for the purpose of an open space?

 

Philip: Yes, because of the comment he got from the District Surveyor.

 

Datuk: I take it that you’re familiar with the Provisions of the Land Ordinance (Cap 68).

 

Philip: Yes.

 

Datuk: Can you please look at Section 9 of the Land Ordinance? Can you please tell the court what type

            of land can the director alienate?

 

Philip: Based on that section, only state land can be alienated.

 

Datuk: Are state land and state reserve mutually exclusive?

 

Philip: Yes.

 

Datuk: May the witness be shown Page 21 to 61 of PBD2?

 

Ronny: My Lady, my learned friend has to explain why he has to show the legality in showing an

            affidavit in opposition filed by this witness in another proceedings which is not the concern of

            the Plaintiff’s in this case. If this is allowed, it means that the witness can at anytime just produce

            in court his affidavit evidence in other proceedings in this case. The Rules of the High Court are

            very clear. Only affidavits in previous proceedings in one case can be referred to, and even that

            is subject to condition – that notice has to be given to the other side. This affidavit is used in a

            completely different application and has nothing to do with this case. The admission of this

            particular document have not been admitted by the Defendants in this case, on legal ground. My

            Lady, I invite this court to take into recognition, this affidavit includes exhibits which are

            irrelevant in this proceedings. It’s admission would also tantamount to tendering all the exhibits           

            in the documents. We therefore object to this affidavit tendered by the witness altogether. Much

            obliged.

 

Datuk: We have earlier settled on this issue as to the use of affidavit in this proceedings. My learned

            friend, Mr. Brendon Soh submitted at Pages 6 and 7 of the Notes of Proceedings that “therefore

            the use of such affidavit will be extremely prejudicial unless the witness is present in court…”

            and bearing in mind that the tendering of this affidavit is allowed under O41r10(4) of the Rules

            of the High Court. I therefore humbly urge My Lady to allow this witness to tender his affidavit

            that we referred to in paragraph 5 of his witness statement. Yes, we have served notice on all

            parties and the court of the Plaintiff’s intention to use the affidavit of this witness – we have on

            the 8th June 2009 served by fax to all the relevant parties, that although this is not required under 

            O41. Much obliged.

 

Brendon: My Lady, just to maintain O41r10 does not expressly allow an affidavit on separate

                proceedings with different parties to be used in this proceedings – would be a serious error of

                law to allow such affidavit to be admitted in its entirety. Any evidence from the witness must

                be by way of an examination in chief either orally or by virtue of a witness statement. Any

                documents referred to must again be subject to the rules of evidence. And therefore we object

                to this affidavit in opposition. Furthermore, my learned friend has not been able to produce

                any authority on this affidavit being used in this proceedings. Much obliged.

 

Judge: Why can’t you just orally examine him?

 

Datuk: *Argues about the use of affidavit under O41r10(4)* I leave it entirely to your discretion. Certain

            documents where this witness is not the maker but is referred to in the affidavit. There

            are 2 documents in PB8 and PB9 Page 58 to 61…

 

Judge: The witness is here, why don’t you just ask him directly?

 

Datuk: Yes, oral evidence is the best. Affidavit evidence is 2nd best.

 

Judge: Is that how you tender documents in court?

 

Datuk: ………………………. I leave it to YA’s decision.

 

Ronny: The 2 letters referred to are basically the letters from the THEN president of the TMC. If he so

             requires, he can anytime subpoena the then TMC who is still in Tawau because he is the maker

             of the document.

 

Judge: Objection sustained.

 

Datuk: En. Basalant, please look at Pages 32 to 38 of PBD2. Can you please..

 

Ronny: When the affidavit is out of the window, it means the exhibits are out of the window as well. If

             my learned friend can refer it as a separate document and not as an exhibit of the affidavit, then I

             will allow the application.

 

Datuk: Can you tell the court what it is?

 

Philip: This is an application by MPT.
Datuk: Now can you please look at the bottom of the page 31, there is a signature. Can you tell whose

            signature is it?

 

Philip: Yes, it is my signature.

 

Datuk: Can you confirm to the court that that is the application made under s12 under the Land

            Ordinance?

 

Philip: Yes.

 

Datuk: Can you please explain to the court what is Section 12?

 

Philip: s12 is an application for state land. The form to be used is mentioned in Page 31 to 38 mentioned

            just now.

 

Datuk: I’d like to tender this document as an exhibit.

 

Ronny: No objection.

Judge: This will be P28 (Pages 31 to 38 of PBD2)

 

Datuk: May the witness be shown page 39 of PBD2? Please tell the court what is this document?

 

Philip: This is a letter signed by me as a notice to MPT that their application has been rejected.

 

Datuk: Did you give reasons for your rejection?

 

Philip: Yes, the reason is…*reads letter out in Malay* – it is open space, therefore application rejected.

 

Datuk: May this document be tendered as an exhibit?

 

Ronny: No objection.

 

Judge: P29.

 

Datuk: Encik Basalant, do you that there was a challenge in court as to your decision to reject the

            TMC’s application?

 

Philip: Yes.

 

Datuk: Do you know what’s the outcome of that court action?

 

Philip: Yes.

 

Datuk: Can you please tell the court what is that outcome?

 

Philip: The outcome was that it was set aside.

 

Datuk: Since you have rejected the application for alienation of the land on the grounds that the land was

            a state reserve (Open Space), my question is this, what do you regard any structure on that piece

            of land?

 

Philip: Any structure on such land is illegal.

 

Datuk: May I now refer to paragraph 6 of your witness statement please? Was that the reason why you

            were directed by the Director to order the 1st Defendant clear all sites?

 

Philip: Yes.

 

Datuk: As an ACLR Tawau, were you also an enforcement officer?

 

Philip: Yes.

 

Datuk: I would like to refer the letter written by you – Page 40 of PBD2?

 

Philip: Yes.

 

Datuk: Please tell the court what is the nature of that document?

 

Philip: A notice requesting the 1st D to remove all structures & to vacate the site. *Reads letter

            addressed to Jeramas Sdn. Bhd.* (menceroboh kawasan Bandar Sabindo & mengembalikan

            kawasan ke bentuk asal. – kalau tidak, denda sebanyak RM100,000 akan dikenakan atau

            hukuman penjara…)

 

Datuk: Can you explain in simple terms what does this document mean?

 

Philip: This is a notice requesting them to vacate the area and remove all structures because it is illegal.

 

Datuk: And was this letter served on Jeramas Sdn. Bhd?

 

Philip: Yes, there was an acknowledgment.

 

Datuk: How did you serve this notice to vacate?

 

Philip: By personal service on the site.

 

Datuk: May this document be tendered as an exhibit?

 

Ronny: No objection My Lady.

 

Judge: P30.

 

Datuk: En. Basalant, will you be able to confirm that your decision to reject the said land application and

            to enforce the provisions of the Land Ordinance is entirely your decision, independent of any

            other authority?

Philip: Yes.

 

Datuk: Will you be able to confirm that no one else including the TMC can interfere with your decision?

 

Philip: Yes.

 

Datuk: And in making your decision, to reject the application, and to enforce the provisions of the Land

            Ordinance, you were guided by the provisions of the Land Ordinance?

 

Philip: Yes.

 

Datuk: En. Basalant, coming back to the notice that you wrote, P30, at Page 40 of PBD2, can you tell

            the court where is this land located?

 

Philip: It is located based on the application, Block D.

 

Datuk: Please explain only why Block D? Why only block D only?

 

Philip: Because only in Block D there were structures that were put up.

 

Datuk: So as at November 9, 2005, only Block D was under construction?

 

Philip: Yes.

 

Datuk: En. Basalant, I’d like you to clarify, is your notice (P30) to vacate anything to do with the State

            Cabinet decision to stop work in respect to this particular piece of land?

Philip: Yes.

 

Datuk: Was there any court action, either by the developer or the TMC regarding your notice to stop

            work and vacate the site?

 

Philip: No.

 

Datuk: I have no further questions.

 

Cross Examination

 

Ronny: I’d like to refer the witness to Exhibit P30, Page 40 of PBD2? Can you please look at this letter

            carefully, especially the heading – Kawasan Terbuka/Tanah Kerajaan. Can you explain to the

            court, that phrase means 1 thing or 2 thing?

 

Philip: This notice was based on the format – for any illegal structure. That is why I issued this letter.

 

Ronny: If this is only a matter of format, why did you answer to the question posed to you just now to

             mean that that phrase refer to Block D?

 

Philip: Because the illegal structure & development is only in Block D and no other block.

 

Ronny: So do you not agree with me, that this particular notice was in respect of the piece of land where

             Block D is situated?

 

Philip: Yes.

 

Ronny: As ACLR then of Tawau, can you please confirm to the court whether the land where Block D is

             situated, is a Kawasan Terbuka or Tanah Kerajaan?

 

Philip: It is Kawasan Terbuka and Government Reserve. That’s why based on my rejection letter and

           comment from District Surveyor – it is Open Space, Government Reserve.

 

Ronny: Are you trying to tell the court that when you have described that piece of Land as Kawasan

             Terbuka/Tanah Kerajaan was the description of the District Surveyor only?

 

Philip: It is not a description, it is an area only for government reserve?

 

Ronny: Do you agree with me that open space only come into being when there is a development on a

            piece of land?

Philip: There are 2 things. Normally 1) For open space where the land is developed, there will be set

            aside 10% as open space. 2) In the Plan, the Government can make an area or set aside an area

            for open space.

 

Ronny: Do you agree with me that Block D is a piece of land earmarked by the government as open

            Space?

 

Philip: It is mentioned for Open Space, Government Reserve. The answer is yes.

 

Ronny: Why do you address your letter to Jeramas Sdn. Bhd.?

 

Philip: Because we went to the site to enquire who were the developer, they said Jeramas. And also the

            address was given by the Enforcement officer by my department.

 

Ronny: Is the office of the ACLR Tawau a memberof the development committee of TMC when

            determining the application on a piece of land by anybody?

 

Philip: Yes.

 

Ronny: So, if your office is a member that means, you would know that there is an application for

             approval of the development project in Block D and C? Do you agree with me?

 

Philip: Yes.

 

Ronny: Were you in that committee when this development project was approved?

 

Philip: I cannot remember because it was sometime ago.

 

Ronny: Can you remember whether the ACLR himself attended the meeting?

 

Philip: Normally the ACLR will attend all government meetings but if he cannot attend, he will assign

           his assistant.

 

Ronny: So did you know the development plan for Block C and D is approved by the TMC?

 

Philip: Yes. But with condition.

 

Ronny: You said you cant even remember whether you attended the meeting… how do you remember

             the condition?

 

Philip: The approval that is normally given by the committee – normally there is a condition attached to

            the approval. Not just this case but all the other applications.

 

Ronny: Who is the developer of Block C and D, who is the developer?

 

Philip: Based on my finding, it is Jeramas.

 

Ronny: Are you trying to tell the court that you don’t know that there is a JVA between TMC and the

             developers?

 

Philip: Yes I know there is JVA between MPT and the developer.

 

Ronny: If I may refer the witness to Page 39 of PBD2. Why do you address this letter to the President of

            the MPT Tawau?

Philip: Because the application is submitted by MPT – that is why the letter is addressed to them.

 

Ronny: From the content of this letter, P29, do you agree with me that the MPT was applying for the

            piece of land for the purpose of development into Block C and D?

 

Philip: Yes.

 

Ronny: Would you agree with me that MPT is the developer of Block C and D?

 

Philip: Yes.

 

Ronny: Can you refer to page 40 of the same bundle? You just said MPT is also a developer. Why didn’t

             you issue a notice to the MPT as well?

 

Philip: Because I rejected the application from the MPT. And I sent the notice to the developer who is  

            on the site.

 

Ronny: You know that the MPT was a JV partner of Jeramas Sdn. Bhd, did you?

Philip: Yes.

 

Ronny: Don’t you think this notice also applies to the MPT?

 

Philip: No.

 

Ronny: You mentioned to the Court that this notice was issued because the structure on Block D is

             illegal. Can you explain why was it illegal?

 

Philip: Because there was no title on the land and they haven’t gotten any approval on it from the Land

            and Survey Dept.

 

Ronny: Can you confirm again that the office of the ACLR is a member of the development committee

             of the MPT?

 

Philip: Yes.

 

Ronny: Can you now explain why this allegation of illegality was not raised during the development

             committee meeting and why did the ACLR office took part in the development project?

 

Philip: I cannot remember but what I know is the approval for any development plan must have a title to

            the land developed and all the committee knows that procedure.

Ronny: Open space within the Tawau municipality are controlled by MPT, am I right?

 

Philip: Yes whereby that open space is surrendered to them.

 

Ronny: So, do you mean therefore that that land earmarked for Open Space for Block C and D were to

             be situated, have not been surrendered to the TMC yet?

 

Philip: I don’t agree to the government surrender the open space to MPT. Cannot simply surrender an

           open space. There is no such thing that any open space will be MPT or any Majlis anywhere.

 

Ronny: What you’re trying to say is that the government have not alienated any land to MPT?

 

Philip: No. Its not something to do with the government to alienate. In the first place, they submitted the

            MPT submitted land application, that’s why the Land Office (ACLR) rejected it. There is

            nothing to do with the government alienating the land.

 

Ronny: Do you not agree with me, when a person apply for a state land, and when it is approved, then

             the land would become alienated to the applicant. Would you agree with me?

 

Philip: Yes.

 

Ronny: So MPT applied and it is rejected by you. Is it not right to say that the government have not

            alienated the land to MPT?

 

Philip: Cannot say the government have not alienated.

 

Ronny: Can I refer the witness to his witness statement PW10 please. Paragraph 1, the last 2 lines

             appearing on the top of page 2? You have come to court this morning to testify on behalf of the

             Land and Survey Dept of Sabah, am I right?

 

Philip: Yes.

 

Ronny: The Land and Survey Dept represents the State of Sabah, am I right?

Philip: Yes.

 

Ronny: So you are also testifying on behalf of the State Government, am I right?
Philip: Yes.

 

Ronny: Does MPT which is the local government of Tawau, represents the government of the State of

             Sabah as well?

Philip: Yes.

 

Ronny: As an officer of the government of the state of Sabah, was it your duty to protect the interest of

             the local government?

 

Philip: No, (Yes, but in this case, I’m referring to this application rejected by my office, I need to do

            my duty following the Land Ordinance)

 

Ronny: According to the provisions by the Land Ordinance, how would you describe the status of the

             Land whereby Block C and D is to be situated?

 

Philip: Is does not fall under the terms of State Land. – s4

 

Ronny: Why the land where Block C and D does not fall between the State Land as earlier mentioned?

 

Philip: Because the status of the land at the time when the application was submitted, falls between

           Open Space (Government Reserve).

 

Ronny: Under the Sabah Land Ordinance, is there a provision for the government to reserve a piece of

             land for public purpose?

 

Philip: Yes, there is a provision.

 

Ronny: Since you are so sure that the piece of land where Block C and D to be situated, is not State

             Land, can you confirm to this Honourable Court that that particular piece of land has been

             specifically reserved with the permission of the TYT for a public purpose with gazette

             notification?

 

Philip: Yes, in this case, it has not been vacated.

 

Ronny: Can I refer the witness to paragraph 6 of his witness statement? Do you know that the JVA have

            been mutually terminated between the MPT and developers?

 

Philip: Yes, I knew about it.

 

Ronny: Do you also know that the development plans have been withdrawn by the Council?

Philip: That one I’m not sure.

 

Ronny: Do you stand by your statement in paragraph 6?

 

Philip: Yes.

 

Ronny: Every word of that, you stand by it?

 

Philip: Yes.

 

Ronny: No further cross-examination.

 

Break for 15 minutes.

 

Resumed at 11.50 am.

 

Re-Examination

 

Datuk: En. Basalant, do you confirm that you come to testify in court today as your capacity as former

            ACLR Tawau?

Philip: Yes. I came here today because I am subpoenaed.

 

Datuk: On your evidence that the notice is with regards to Block D only, if construction was going on in

            any of the other 4 blocks where the open space is located, would you also issue similar notice?

 

Philip: Yes.

 

Datuk: Would you also do so where there is a breach of title condition as to the usage of the land?

Philip: Yes.

 

Datuk: My learned friend asked you if you knew about the JVA. You said you knew. I’d like to ask you,

            does it matter whether MPT has a JVA or partnership agreement or any sort of relationship with

            anybody at all when considering MPT’s application for alienation of state land?

 

Philip: No, doesn’t matter because every application – I treat as applicant. I don’t care if there have any

            joint venture with any developer.

 

Datuk: Now on the question on why you did not serve notice on MPT as well, are you aware that before

            you issue the notice to vacate in November 2005, the MPT President together with his officers

            also went to the site to order the developer to stop work?

 

Philip: Yes.

 

Datuk: And since MPT also wanted the developer to stop work,

 

Ronny: My Lady, the question on whether MPT ordered to stop work has already been determined in

             another court case, shouldn’t be mentioned in this proceeding.

 

Datuk: I haven’t asked the question yet and I’ll leave it to YA discretion. And since MPT also wanted

            the developer to stop work, is there any necessity for you to issue similar notice “stop work

            notice” to MPT?

 

Ronny: I withdraw my objection.

 

Philip: No.

 

Datuk: On your evidence that the structure was illegal, would you confirm that the construction work

            being carried out on Block D are works on the piece of land that is without title?

 

Philip: Yes.

 

Datuk: My learned friend asked you about the duty to protect the interest of the state and MPT

            represents the government or the State of Sabah. I’d like to ask you, and if you cannot answer,

            just say so. Do you know that MPT is a separate legal entity formed under the Local Government

            Ordinance as well as the Municipal Council Tawau instrument?

 

Philip: Yes.

 

Datuk: And do you also know, that MPT has a legal capacity of suing or being sued? In the context of

            MPT’s land application, how do you treat MPT in that instance?

 

Philip: I treat it the same as other applicants.

 

Datuk: So you mean to say that in so far as the land application is concerned, you treated MPT as a land

            applicant.

 

Philip: Yes.

 

Datuk: You mentioned State Land under s4 of the Land Ordinance. Please have a look at s4 under State

            Land. Let me try to be very basic to get a confirmation from you. Do you agree that under s4,

            State Land means land which have not been alienated and have not been reserved or public

            purpose.

 

Philip: Yes.

 

Datuk: To put it conversely, land which have been reserved for public purpose, cannot be state land?

 

Philip: Yes.

 

Datuk: And public purpose in this case can include open space?

 

Philip: Yes.

 

Datuk: Again on s4, can you tell the court, does the section describe the way in which the land may be

            reserved for public purpose?

 

Philip: No.

 

Datuk: Does that mean that it is up to your department to decide how lands may be reserved?

 

Philip: Yes.

 

Datuk: Do you agree with me that reservation of land by TYT is only one of the ways?

 

Philip: Yes.

 

Datuk: Now, on the question of gazette notification, since you said that the section does not prescribe in

            which the land may be reserved, do you agree with me that as a matter of good practice, this

            piece of land where Block C and D are located, should be gazetted?

 

Philip: Yes.

 

Datuk: And do you also agree that gazetting a piece of land is an administrative act and can be easily

            done by the government?

Philip: Yes.

 

Datuk: In that case, the TYT is only playing a constitutional role?

 

Philip: Yes.

 

Datuk: I have no more further questions.

 

Witness is released.

 

Datuk: YA, that concludes the claimant’s case.

 

Ronny: My Lady, then we will call the 1st Defendant, Mr. Alex Kong.

 

Judge: How many witnesses do you have?

 

Ronny: I only have 2 witnesses.

 

Adjourned to 2.30 pm.

 

Resumed at 3.00 pm.

 

Ronny: May it pleases My Lady, I would like to call the government civil servants first.

 

Defendant calls 1st Witness – Mr. Abdul Manap Haji Aneh (DW1)

(Sworn – solemnly & sincerely declare the evidence given in this court is the whole truth, the truth and nothing but the truth in English.)

 

Ronny: Are you still the district surveyor currently?

 

Abdul: Yes.

 

Ronny: Can you tell the court when did you commence your position as District Surveyor Tawau?

 

Abdul: 1 January 2007.

 

Ronny: Now sometime in May 2008, did anybody ask you to confirm the status of a piece of land in the

            Sabindo area in Tawau?

 

Abdul: Yes – the State Attorney General.

 

Ronny: Did you provide your confirmation on the status of the land to the State AG?

 

Abdul: Yes.

 

Ronny: I would like to refer the witness to the documents of Pages 1, 2, 3, 4 and 5 of PBD1. First of all,

             Page 1 and 2, is this your letter?

 

Abdul: Yes.

 

Ronny: And on Page 2 on the bottom, is that your signature?

 

Abdul: Yes.

 

Ronny: If you look at Page 1 on the top right hand corner, is that an acknowledgement by the State AG’s

            office?

 

Abdul: Yes.

 

Ronny: If you look at Page 3, 4 and 5, are they the attachment to your letter?

 

Abdul: Yes.

 

Ronny: Can you tell the court, what is the purpose of this letter?

 

Abdul: Because the State AG asked me to provide some information on this piece of land.

 

Ronny: On page 2 of the letter, the bottom paragraph, can you confirm that is your finding on the status

             of that piece of land?

 

Datuk: YA, if my learned friend is using this document and this witness to establish the Defendant’s

            case, then I’m afraid I must object. The reason being that the defence case has shown in these

            documents (Pages 1-5 of PBD1) to this witness was never put to my witnesses in particular PW6

            and the former ACLR, PW10. In fact the evidence on the status of the land, in particular this 2

            witnesses, has not been challenged. To allow this witness to establish the defence’s case, and to

            use the documents that I’ve just mentioned, is grossly prejudicial to the plaintiff’s case. This also

            means that the Plaintiff’s have been deprived of an opportunity to respond to the defendant’s

            case. That is the fundamental rule, this must not be allowed. And I humbly urge my Lady not to

            allow this line of examination to be continued. Much obliged.
Ronny: My Lady, it is the defence duty to bring the attention to this Honourable Court to the current

             status of the land. The best person to testify would be the current District Surveyor. Past ACLR

             and past Surveyor wouldn’t know the current situation in the Land & Survey in Tawau. The

             Plaintiff are in liberty to subpoena any witnesses as they wish from any department to assist the

             court in their case. They have chosen to call and subpoena past witnesses. The Defendant’s have

             subpoenaed this witness as the District Surveyor of Tawau who have given the latest status on

             that piece of land. It is improper for me to cross examine past Surveyors and past ACLR

             concerning the action taken by the current District Surveyor as this is a document that was not

             admitted or agreed by the Plaintiff’s, it has got to be adduced through the maker of the

             document – and that is this witness himself. This witness is entitled to refer to this document in

             his testimony before Your Ladyship this afternoon.

 

Judge: Any response to that?

 

Datuk: Yes, 2 points. I think my learned friend missed my objection. I’m objecting to the establishment

            of the defence in this LATE stage. Which is most fatal in any trial. And it is not for my learned

            friend to say whether my witnesses can or cannot say to that document. My 2nd point is that, my

            learned friend has made a very serious error of fact, the surveyor, that is PW6 who has given

            detailed evidence of the history and status of the land, and his personal involvement in the

            ascertainment in the status of the land, is not a past officer. He is not a past surveyor – he is still

            the surveyor of the Land Office Tawau. And his evidence on the status of the land was not

            challenged at all. How can my learned friend now establish his case without first putting his case

            to witnesses especially the surveyor PW6? And it is for this reason that I must object to his line

            of examination.

 

Judge: Is this pleaded?

 

Ronny: Yes, it is pleaded.

 

Judge: How is it pleaded?

 

Ronny: My Lady, this is on paragraph 3 – Suit T(21) 52 of 2005. The 1st Defendant’s statement of

             Defence. It is not in the bundle of documents. It is filed in a separate bundle.

 

Judge: Why is it not in the bundle?

 

Datuk: We are sorry we have not filed the supplementary bundle – We have not received the sealed

            amendment Statement of Claim and Defence. Can I reply to your Ladyship’s question on

            pleadings? Whether or not the issue was pleaded was completely irrelevant in this stage. Because

            we are talking about evidence and not pleadings in this case. I’m talking about evidence which

            are established, contradicted and tested. All these are based on the fundamental rule that the

            defence must put his case to his witnesses, so that the Plaintiff witnesses may agree, disagree or

            rebut. Failure to put the defence of the case to the witnesses must necessarily mean that the

            plaintiff’s are unfairly and unjustly deprived of their pride and opportunity to respond to the

            Defendant’s case. It is for this reason and now that the Plaintiff have already closed their case,

            this line of examination must not be allowed. Much obliged.

 

Judge: My understanding is that if a case have not been pleaded and wish to put the unpleaded defence,

           the other party must object to it unless it will be noted as evidence. Eventhough the defence have

           been pleaded…

 

Datuk: We are not here to help the defendant’s. We have already closed the case.

 

Judge: I want authority. You submit to me tomorrow.

 

Ronny: I stand corrected on the surveyor’s position. The surveyor I have challenged him that he has not

            come under the Land and Survey Dept – so he has no right to come under the Department. As

            for the ex- ACLR this morning, I tested him at cross examination at length regarding the status of                                                               

            that piece of land especially at the time of the approval of the Development Plan. I beg to

            differ from my learned friend is not important/relevant. A pleading is the brief statement of

            fact of the case. This letter was pleaded in paragraph 3 of the amended 1st Defendant’s statement

            of defence. And the Plaintiff’s reply state that the Plaintiff’s further contend…

            *Judge wants to read paragraph 3 by herself*

 

Adjourned and resumed at 3.50pm.

 

Ronny: I’m also referring my Lady to paragraph 2 of the Plaintiff Reply to the 1st Defendant’s Amended

            Defence T(21) 52 of 2005 where the letter was pleaded – “that letter does not make any

            difference to the Plaintiff’s contention at all”. This witness is the author to the letter and must be

            tendered through this particular witness. As to how the defendant have conducted the trial, I

            think it is for submission at the end of the day. Much obliged.

 

Judge: You want further submission on this?

 

Datuk: I leave it to your Ladyship’s discretion.

 

Judge: Since the letter is pleaded, the defence is allowed to examine the witness.

 

Ronny: I’d like this letter to be admitted as Exhibit D2 and I have no further examination in chief in this

            case.

 

Judge: The court still does not know the content of the letter. This will be exhibit D2.

 

Ronny: My Lady, if I may just ask the last question. Encik Abdul, if you look at the last paragraph of

            D2, can you confirm that that is your finding?

 

Abdul: Yes.

 

Ronny: I have no more further examination in chief on this witness.

 

Judge: What is your finding?

 

Ronny: Encik Abdul, can you please read to the court of the finding as stated in your letter?

 

Abdul: *Reads out letter (D2)*

 

Ronny: That is all.

 

Datuk: Since the defence is only putting their case now, I’d like to reserve my cross examination to

            tomorrow morning.

 

Judge: To tomorrow morning at 9.00 am.

 

Adjourned till tomorrow morning at 9.00am.

Sabindo Open Space Trial – Day 4 June 20, 2009

Posted by wong jimmy in Open Space.
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DAY 4                                  NOTES OF PROCEEDINGS                     15 JUNE 2009

3.15 pm

CHONG SUI JIN & 9 ORS

v

AGGASF SDN. BHD.

& JERAMAS SDN. BHD

v

MAJLIS PERBANDARAN TAWAU

 

Civil Suit No. T(21) 52 2005

Civil Suit No. T(21) 53 2005

 

Datuk: The parties are as before. May I call my 1st witness, Mr. Wong Su Vui.

 

Plaintiff calls 1st Witness – Mr. Wong Su Vui (PW7)

(Sworn – solemnly & sincerely declare the evidence given in this court is the whole truth, the truth and nothing but the truth in Mandarin)

 

Examination in chief

 

Datuk: What is your occupation?

 

Wong: Businessman

 

Datuk: Do you belong to any political party in Sabah?

 

Wong: Sabah Progressive Party Tawau branch.

 

Datuk: What is your position there in 2005?

 

Wong: Publicity officer

 

Datuk: Do you know about the JV projects to develop the Bandar Sabindo on open space?

 

Wong: I only knew it when I saw it on the advertisement on newspapers.

 

Datuk: Can you tell the court roughly when was that?

 

Wong: August 2005

 

Datuk: How did you find out about it?

 

Wong: There has been a construction/development of 54 unit shop lots 4 storey building – said on

            advertisement in a Chinese newpaper. “The last hottest piece of land (54 unit shop lots of 4

            storey building) in Bandar Sabindo for sale”

 

Datuk: Can you remember what else was said in the advertisement?

 

Wong: Construction will finish in 30 months.

 

Datuk: Can you tell the court what happened after the newspaper advertisement?

 

Wong: YB Shim Paw Fatt MP office received a lot of complaints on the development projects. Most of

            the complaintants are Tawau residents and shop lot owners. They complained and objected to the

            development of the commercial shop lot. Every Sunday, Sabah Progressive Party have a medical

            mobile service unit at Sin Onn Market – also received a lot of complaints.

 

Datuk: After receiving a lot of complaints, what did you do?

 

Wong: After receiving the complaints, we SPP (publicity section) had a meeting to discuss about the

            situation/complaints.

 

Datuk: What did you do after the meeting?

 

Wong: In the meeting we discussed the 3 most important points for the complaints, namely;

           1) Shortage of car parks in Sabindo.

           2) Within the 5 pieces of land, one was originally a play ground.

           3) As for the Dunlop Street area where the open space is at, if it were to be develop, it will in the

               future affect the expansion & widening of the street.

 

Datuk: Did your Party take any action following the complaints?

 

Wong: After we discussed about the problem, we took a reasonable approach by taking the names of the

            people and reasons/causes as to why they we objecting to it. We prepared a form for the

            complainants to sign.

 

Datuk: Attached to the form, is there any letter of petition?

 

Wong: This is the letter.

 

Datuk: Is that the letter that you prepared?

 

Wong: Yes.

 

Datuk: Can you tell the court what is this letter about?

 

Wong: Rayuan untuk tidak membangunkan bangunan di Bandar Sabindo … (as stated in the heading of

            the letter)

 

Datuk: In that letter, who are you appealing to?

 

Wong: The Chief Minister of Sabah.

 

Datuk: Were the grounds of appeal set in the letter?

 

Wong: There are 10 reasons stated in the letter.

 

Datuk: Can you tell the court where is the original copy of this letter and the forms which you have

            mentioned?

 

Wong: It has already been sent to the Chief Minister.

 

Datuk: With YA’s permission, I would like to tender this document as exhibit. Can it be P26?

 

Ronny: No objection.

 

Judge: Letter of Appeal to CM – P26.

 

Datuk: Much obliged.

 

Wong: Can you tell the court how many signatures people did your parties able to get – 6800 signatures.

 

Datuk: Is there any other signatures which you have collected?

 

Wong: In the first week, we received 6800 over. Then we had an extra 3,000 plus signatures. Adding

            together we have 10,000 over signatures.

 

Datuk: After receiving the forms with signatures, what did you do?

 

Wong: After we gathered the signatures and forms, we passed those forms to our Supreme Counsellor

            Mr. Kenneth Goh Phiang Kiong.

 

Datuk: Did you also pass P26 to Mr. Goh?

 

Wong: Yes.

 

Datuk: What happened after you’ve passed the documents to Mr. Goh?

 

Wong: Mr. Goh brought those signatures and forms to the HQ of KK for a meeting.

 

Datuk: What happened after the meeting?

 

Wong: We then passed those documents to Mr. Jimmy Wong Chee Kiong who is the Chief Minister’s

            Political Secretary.

 

Datuk: Mr. Wong, how do you know that the documents was passed to Mr. Jimmy Wong?

 

Wong: Mr. Jimmy has called to confirm the safe receipt of the forms and signatures.

 

Datuk: Do you mean Mr. Jimmy has called you to confirm the safe receipt of the documents?

 

Wong: Yes.

 

Datuk: Is there anything else that the political secretary, Mr. Jimmy Wong has told you?

Wong: Mr. Jimmy Wong said that his boss, the CM will take the necessary action.

 

Datuk: Did the CM make any press statement after receiving your letter and signatures?

 

Wong: I only saw from the newspaper that the CM had made a press release/statement.

 

Datuk: Please look at the newspaper cutting. Is that the newspaper report you’re referring to?

 

Wong: Yes.

 

Datuk: I’d like to tender this newspaper report as P27.

 

Ronny: Could my learned friend explain as to the relevancy of this exhibit? We have 2 pending judicial

            reviews – T(25)5 of 2005 and T(25)5 of 2006. Because this question of “stop work” has been

            litigated and is res judicata and cannot be raised again. So if my learned friend can rely to the

            relevancy of this document, much obliged.

 

Datuk: My question has nothing to do with Judicial Review. If YA can recall, during the previous

            proceedings, the 1st D alleged that there is no public objections to the project. 10 P’s do not

            constitute public objections.

 

Ronny: If he were establish that there is public objection then I wish to withdraw my objection.

 

Datuk: It is only to prove public objection. This letter goes to show that there is a protest by public

            residents. Just to prove public objection.

 

Judge: Stated in?

 

Datuk: The Borneo Post 13 October 2005.

 

Judge: P27.

 

Datuk: Earlier on you mentioned about – there were also complaints to YB Shim Paw Fatt – do you

            know what did he do following the complaints?

 

Wong: YB Shim Paw Fatt has written a few letters to the CM with the reasons to stop the development.

 

Datuk: May the witness be shown PBD Page 71? This shows the dialogue with the CM and the Chinese

            community of Tawau. Can you please look at the report?

 

Wong: Yes.

 

Datuk: Can you tell the court – were you present at the meeting with the CM?

Wong: Yes – it was held in Hotel Emas.

 

Datuk: Can you confirm the accuracy of this newspaper reporting?

Wong: Yes.

 

Datuk: I have no further questions.

 

Ronny: I have no cross examination.

 

Witness is released.

 

Plaintiff calls 8th Witness – Mr. Michael Lee Yun Piao (PW8)

(Sworn – solemnly & sincerely declare the evidence given in this court is the whole truth, the truth and nothing but the truth in English.)

 

Examination in chief

 

Datuk: Mr. Lee, can you tell the court what is your occupation?

Lee: I’m a reporter.

 

Datuk: Is there a reporter association?

 

Lee: Yes, Persatuan Pemberita Tawau.

 

Datuk: Do you hold any position in the Reporter’s Association?

 

Lee: Yes.

 

Datuk: Please tell the court about your position.

 

Lee: I am now the Vice President and before that the Secretary.

 

Datuk: What were you in 2005?

 

Lee: I was the Secretary, Your Ladyship.

 

Datuk: Have you anything to do with Majlis Perbandaran Tawau in 2005?

Lee: I was the Counsellor.

 

Datuk: Did you know about the 2 projects to develop open space and car park in Bandar Sabindo?

 

Lee: Yes, Your Ladyship.

 

Datuk: Did you know anything about the development plans for the 2 projects in the year 2005?

 

Lee: Yes, I came to know about it when it was brought up to the Full Board for approval.

 

Datuk: Were you present?

Lee: Yes.

 

Datuk: What did you do during the full board meeting?

Lee: I objected to the development proposal.

 

Datuk: Can you tell the court why you objected to the development projects?

 

Lee: It is my duty & responsibility to protect the interest of the Council and town people. And to my

        common knowledge, open space cannot be used by private sectors to develop buildings.

 

Datuk: Can the land be used for commercial buildings?

Lee: To my knowledge, I don’t think so.

 

Datuk: Is there any other reason why you object to the proposed development plans?

 

Lee: If you put up more building there, it will cause more traffic congestion and the parking lot there is

        insufficient. And besides, the piece of land in front of Empress theatre is used for parking space –

        providing around 100 lots.

 

Datuk: Is that the piece of land where the incomplete building is currently situated?

 

Lee: Yes.

 

Datuk: Is the Empress Theatre along the side of Man Cheong coffee shop and Persatuan Teo Chew

           Tawau?

 

Lee: The Empress Theatre is no longer a theatre but it used to be called Empress Theatre.

 

Datuk: Is there any other reason why you object?

 

Lee: A lot of our open spaces have been used for commercial buildings and we shouldn’t allow more of

        them to be used.

 

Datuk: Mr. Lee, do you go to Bandar Sabindo at all?

Lee: Yes.

 

Datuk: With the incomplete building currently on the land, do you experience any difficulty in parking

            your car?

Lee: Definitely.

 

Datuk: Would you say that it is more difficult to get a parking space?

 

Lee: Yes.

 

Datuk: Is there any other reasons why you object to the proposed development?

 

Lee: I think that’s all.

 

Datuk: Mr. Lee, do you also know that there is a nearby 6.9 acres of public places in Bandar Sabindo

            that is suppose to be up for commercial development?

 

Lee: I heard about it.
Datuk: Do you know if there were also public objections to that?

Lee: Yes.

 

Datuk: Do you know whether the project did in fact take off or not?

Lee: As I know, it was stopped.

 

Datuk: Mr. Lee, you said you were a counsellor in 2005, when did your term end?

 

Lee: December 2005.

 

Datuk: Were you re-appointed?

 

Lee: No more.

 

Datuk: May the witness be shown Page 6(P9) of PBD3? Page 19-20 and 62-67(P11) of PBD2? Can I ask

            you to look at these documents one at a time? My question is whether you have personal

            knowledge of this documents?

 

Lee: Yes.

 

Datuk: Are you agreeable to the contents of these documents?

 

Lee: Yes.

 

Datuk: Whether that is the stand of his association (Persatuan Pemberita Tawau)?

 

Lee: The decision was made in our association meeting that this is our stand.

 

Datuk: Does your association still stand by that decision?

Lee: Yes.

 

Datuk: I have no more further questions.

 

 

Cross Examination

 

Ronny: Are you a plaintiff in this case?

 

Lee: No.

 

Ronny: Is your association a plaintiff in this case?

Lee: No.

 

Ronny: No further questions.

 

Re-examination

 

Datuk: I would like you to confirm to this court that the evidence you gave to court today is the whole

            truth, the truth and nothing but the truth?

 

Lee: Yes, the whole truth and nothing but the truth.

 

Judge: Did it create a confusion? If not, leave it for submission.

 

Datuk: Much obliged.

 

Witness is released.

 

Adjourned to 4.45pm

 

Datuk: I call the next witness, Mdm. Chong Sui Jin, the 1st Plaintiff.

 

Plaintiff calls 9th Witness – Mdm. Chong Sui Jin (PW9)

(Sworn – solemnly & sincerely declare the evidence given in this court is the whole truth, the truth and nothing but the truth in Mandarin)

 

Examination in chief

 

Datuk: Mdm. Chong, you have prepared a witness statement, can you confirm that is your signature?

 

Chong: Yes.

 

Datuk: Can you also confirm that the statement that you make is correct?

 

Chong: Yes.

 

Datuk: May I have the statement be exhibited?

 

Ronny: As the witness affirmed in Mandarin, I need my learned friend to confirms that she understands

             English. Much obliged.

 

Datuk: Mdm. Chong, this statement is written in English. Can you understand it?

 

Judge: Should get court translator to translate it to Mandarin before coming to court.

 

Ronny: I think we need a jurat to confirm as to whether she understands English.

 

 *Judicial Intervention about the witness understanding the contents of the witness statement written in English*

 

Chong: I understand English and I confirm the contents of the witness statement.

 

Ronny: In that case, I have no objection.

 

Judge: Madam Chong Sui Jin is marked as PW9 as witness.

 

Examination in chief

 

Datuk: Can you explain to the court why you objected to the development project in Bandar Sabindo?

 

Chong: We insisted to object because of the public interest because Sabindo has only these few open

             spaces and car parks. I myself objected because when I bought the shop lot, in front of the shop     

             lot is the open space and car park. If the project were to develop, it would create traffic jam and

             also my business will be aversely affected. So the back of the proposed commercial shop lot will

             be facing the front of my shop.

 

Datuk: What about the traffic?

 

Chong: So if there is no car park, we would always find car park all the time as there is no more spare.

 

Datuk: Are you already facing this difficulty now?

 

Chong: The car park is full during working hours. If I come to the shop late, I would have trouble

             looking for car parks – have to go a few rounds looking for car park.

 

Datuk: Is there any other reason why you objected to the development?

 

Chong: We will insist to object until the development will come to a complete halt.

 

Judge: Is there any other reason why?

 

Chong: It is also for my convenience to find car park and there will be open space for recreation

            purposes.

 

Datuk: Do you also know that there is a 6.9 acres of open public places?

Ronny: My Lady, the 6.9 acres of open space has never been pleaded in the Statement of Claim, so it

            shouldn’t be brought up in this case. It is not part of the pleading.

 

Datuk: I leave to YA direction. There is also public objection to the other area but it was stopped.

 

Judge: Objection overruled.

 

Datuk: Question repeated.

 

Chong: Yes.

 

Datuk: Do you know if there are public objections to that case?

 

Chong: Yes.

 

Datuk: Do you know whether the project has stopped?

 

Chong: Up to now, I’ve not seen any activities after that.

 

Datuk: Is there anything else you would like to tell the court today?

 

Chong: I hope that the 5 pieces of land will be returned to the people’s of Tawau and that the

             development will stop.

 

Datuk: Would it be fair to say you are very familiar with Bandar Sabindo?

Chong: I have been doing business there for 20 years.

 

Datuk: Will you agree with me, that incase of fire or accident, it would be very difficult for the people to

            get out the area?

 

Ronny: Will my learned fire refrain from leading?

 

Datuk: What will happen in the case of fire or accidents if the developments were to develop?

 

Chong: If it would be jammed, we wouldn’t get out for life – difficult to escape.

 

Ronny: We should ask the Bomba for fire safety regulations and safety, not the plaintiff.

 

*Judicial Intervention about the safety issue*

 

Datuk: I have no more further questions.

 

Ronny: I have no cross examination for this witness.

 

Witness is released.

 

Adjourned till 9.00 am tomorrow.

 

Sabindo Open Space Trial – Day 3 June 20, 2009

Posted by wong jimmy in Open Space.
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DAY 3                                    NOTES OF PROCEEDINGS                     12 JUNE 2009

9.43 am

CHONG SUI JIN & 9 ORS

v

AGGASF SDN. BHD.

& JERAMAS SDN. BHD

v

MAJLIS PERBANDARAN TAWAU

 

Civil Suit No. T(21) 52 2005

Civil Suit No. T(21) 53 2005

 

Datuk: Yang Arif, parties are as before. May I ask the witness, Mr. Samson Chin to go to the stand for

            re-examination.

 

Witness PW2, Mr. Samson Chin Chee Tsu called to the stand.

 

Re-Examination

 

Datuk: If you can recall yesterday morning I said there was an error with the Notes of Proceedings, I

            will clarify with the witness regarding that.

 

Judge: I think you re-examine the witness first then later on clarify.

 

Datuk: Mr. Chin, yesterday afternoon, you said that where there are 2 valid joint ventures, no one can

            put a stop to the contract, is that right? Can I ask you now, can the court put an end to the

            contract?

 

Samson: Yes.

 

Datuk: I want to ask you about subject matter to the dispute. What is your understanding to the subject

            matter of dispute in this case?

 

Samson: The subject matter to this case as I understand it is open space.

 

Ronny: My Lady, sorry for the delayed response. I have the duty to upheld the integrity and sanctity to

             this court. I think it is an offence to the sanctity of the court to say that it can put an end to a

             valid contract. I was expecting some follow up question, as in to clarify in what way to a degree,

             how a court can end a valid contract. I therefore ask that answer to be expunged.

 

Datuk: With due respect, I think it has nothing to do with the integrity of this court. My question is

            simple and straight forward. It is within the liberty of this witness to answer this question, which

            he has. It would not be fair for questions pertaining to anybody not being able to put an end to

            the contract to be allowed and not allow this witness to clarify. It doesn’t mean that the contract

            can never be put to an end. And this witness did say the court can put an end to it. This is

            evidence put by the witness and it is up to the court whether they want to use this evidence – for

            submission. But the witness’ evidence can be replied upon.

 

Ronny: My Lady, it is trite law that parties must raise objection during the trial and not during the

             submission stage. There are notes stating if raised during submission, it would be too late. By

             looking at the question and answer, the court can end a contract without any reason gives rise to

             an impression that it can do so arbitrary  without regard to justice, in that sense, I say it is an

             offence to the sanctity to this court.

 

Judge: At the end of the day, it is up to the court to decide, isn’t it? As I see it, whether the valid contract

           the whole trial is about the validity of the contract isn’t it. Legal questions is best to be left out.

           Just give your opinion – it is for the court to decide. Objection overruled.

 

Datuk: Much obliged.

 

Datuk: Is the subject matter to this suit still outstanding?

 

Samson: Yes, Yang Arif.

 

Datuk: Mr. Chin, you were asked yesterday that since the piece of land in which Block C and D was not

            vested in the 2nd Defendant and remains unalienated and is still legally a state land in the Sabah

            Land Ordinance. I think in Q224. And remember your answer to that question is yes? Would you

            like to clarify your answer?

 

Samson: Yang Arif, what I meant was that NO development can be proceeded with on an open space.

               And I did say earlier on in examination in chief, that it would be illegal.

 

Datuk: So that open space – do you mean Open Space (State Reserve)?

 

Samson: Yes, that’s correct .

 

Datuk: Coming to the term Open Space (State Reserve) where my learned friend said – “that is your

            own creation” I think your reply referred to the Plan 10124910 as your evidence. That is page 1

            of PBD. Mr. Chin, this is a clearer version of the plan. Can you have a look at it?

 

Passes a copy to PW2.

 

Datuk: Please look at the caution marked yellow of the Plan. What does it say?

 

Samson: May it please your Ladyship, the word Open Space is clearly marked in light green and yellow

               with the word State Reserve in bracket. That was where I quoted State Reserve in the Plan

               stated. No.10124910.

 

Datuk: For clarification, the words Open Space (State Reserve), was it put in there by you?

 

Samson: No.

 

Datuk: Turning down to gazette notification, where you said yes to the gazette notification published –

            to the members to the public. My question to you is, should the government gazette the Open

            Space (State Reserve)?

 

Samson: Yes.

 

Datuk: Yang Arif, that ends the questions in re-examination. Now can I come to seek clarification from

             this witness?

 

Judge: Leave granted to seek clarification subject to cross-examination.

 

Datuk: That is referring to Q16 at Page 12 of the Notes of Proceedings. You remember in examination

            in chief, “would you said that it is a state reserve open space, so no development can be carried

            out in the open space.” Do you remember that? Your answer to that is YES. Now, is that the

            correct recording of your evidence?

 

Samson: The answer it should be yes. No development can be carried out in the open space.

 

Judge: The answer should be yes. No development can be carried out in the open space. The answer

           should not be “No”.

 

Ronny: No further questions.

 

Witness is released.

 

Witness PW3, Encik Husin Bin Abdul Rahim called to the stand & sworn in Malay.

 

Examination-in-chief

 

Datuk: Yang Arif, as I said previously that I have document to be tendered.

 

Judge: You just continue with your examination.

 

Datuk: Can I just ask this question – Encik Husin, was this letter written in response to the instruction

            given by the council from the ministry of Local Govt and Housing?

 

Husin: Yes.

 

Datuk: Much obliged.

 

Cross Examination

 

Ronny: Do you know that the development plan in respect of Block A, B, C, D and E is withdrawn by

             the TMC?

 

Husin: No

 

Ronny: Do you know that the JVA you signed as a signatory of the TMC has been mutually terminated?

 

Husin: Yang Arif, no.

 

Ronny: Can I refer the witness to page 248 to 251 of DBD? Please look at it. These are 2 court orders. In

             the course of preparation of your witness statement, have you been briefed of the 2 court order?

 

Husin: Yang Arif, not to my knowledge.

 

Ronny: During the course of preparation of your witness statement, have you been briefed that the dev.

             Plans have been withdrawn?

 

Datuk: Objection. Any conversation with solicitor and witness is privileged.

 

Ronny: My Lady, I never mentioned any solicitors.

 

Datuk: Then in that case, I wish to seek clarification. Who have briefed him about the court order?

 

Ronny: This is cross examination, I can ask any relevant question.
Datuk: The question is ambiguous.

 

Judge: You can clarify in re-examination. Objection overruled. Question repeated.

 

Ronny: Much obliged. Mr. Husin, During the course of preparation of your witness statement, have you

             been briefed that the development plans have been withdrawn?

 

Husin: No.

 

Ronny: During the course of preparation of your witness statement, have you been told that the JVA

             have been mutually terminated?

 

Husin: Not to my knowledge, no.

 

Datuk: I don’t think I need to re-examine this witness.

 

Judge: Thank you for waiting for your turn yesterday. You are now released.

 

Witness PW4 Mr. Tai Yun Wu called – Sworn statement of truth.

 

Cross Examination

 

Ronny: Are you anywhere directly or indirectly involved in the approval and execution of the JVA in

             this case?

 

Tai: No.

 

Ronny: During the course of preparation of your witness statement, Do you know that the development

             plans for Block A, B, C, D and E have been withdrawn?

 

Tai: Yes.

 

Ronny: During the course of preparation of your witness statement, have you been told that the JVA

             have been mutually terminated?

 

Tai: Yes.

 

Ronny: Why have you not stated those facts which I’ve just mentioned to you in your statement of

             claim?

 

Tai: Yang Arif, I was interviewed by the Plaintiff’s Senior Lawyer, Simon Shim. There was no mention

       of such.

 

Ronny: I would like to Page 248 to 251 of DBD – the 2 court orders. Mr. Tai, during the course of

             preparation of your witness statement, are you aware of the existence of this 2 court orders?

 

Tai: No, I’m not.

 

Ronny: I don’t have any further cross examination.

 

Re-Examination

 

Datuk: Mr. Tai, since you say you know that the JVA has been terminated and the development plans

            being withdrawn, in a situation like that would you regard the buildings that still currently sits on

            that piece of land, is illegal structure?

 

Ronny: Objection – My question is on the knowledge of the withdrawal and did not refer to the building.

 

Datuk: I think the objection is MOST UNREASONABLE. The re-examination is pertaining to the

           questions on termination  of JVA and withdrawal of dev. plans. Since my learned friend asked

           that question, I have perfectly entitled to ask this witness, how he would regard the existing

           buildings on the land? And this question is VERY important in this trial. And the evidence is very

           important.

 

Judge: You ask fresh questions to it.

 

Ronny: I’m dealing with a learned friend who is very senior in this case, who is supposed to know the

            trite law in re-examination. Any issue which have not been cross examined, he cannot re-

            examined. To allow him to re-examine, would mean introducing new evidence. My Lady, I can

            provide the relevant authority if we have 10-15 minutes of break.

 

Datuk: My learned friend is again very unreasonable. I have no quarrels on the rules. ************

 

Ronny: I withdraw my objection.

 

Datuk: Much obliged.

 

Judge: If there is new evidence – incline to overrule objection but although did not touch on buildings,

           but it brings into issue the status of existing building. I suggest Mr. Shim to apply for the court’s

           leave to ask fresh questions so that Mr. Cham can cross examine again.

 

Datuk: May I now ask leave from the court to ask the witness questions pertaining to the status of the

            existing building?

 

Judge: Leave granted subject to cross examination.

 

Examination-in-chief

 

Datuk: Now that you know the JVA have been terminated have been terminated and the dev. Plans have

            been withdrawn, would you regard the existing buildings on the piece of land illegal structure?

 

Tai: Yes, Yang Arif.

 

Datuk: Would you allow any building on either government land or private land to continue to be

            developed or erected without the approved development plan?

 

Tai: No, Yang Arif.

 

Datuk: No more questions.

 

Cross Examination

 

Ronny: Mr. Tai, can you explain to the court …

 

Tai: The termination has been terminated, the JV has been terminatd, development plan and structure

        has been terminated.

 

Datuk: Mr. Tai, you will regard such building as an illegal structure in any similar situation?

 

Tai: Yes.

 

No further questions.

 

Witness is released.

 

Ronny: Is there any questions on examination-in-chief from my learned friend? If he does not have, I

             have no cross-examination.

 

Datuk: Can you give me 10 minutes to confirm?

 

Judge: Come back at 11.15am.

 

Adjourned till 11.15am.

 

Resumed at 11.18am.

 

Datuk: Yang Arif, if you may recall, during examination in chief of PW5, the witness say that he will go

            back to the office to search the original copy of objections and can I please continue my

            examination in chief?

 

Witness PW5 – Datuk Yap Yew Sin called. Sworn statement of truth.

 

Judge: Yes you may continue.

 

Datuk: Much obliged. May the witness be shown pages 4 to 12 of PBD2 please? Datuk Yap, do you

            have the original copy of these 2 documents?

 

Yap: Yes. (Shows and points out to court)

 

Datuk: Can you show them to my learned friend? They wanted the original the other day.

 

Judge: We’ll just tender the original.

 

Datuk: From pages 4, 5, 6 and 7 as P14 and pages 8, 9, 10, 11 and 12 will be P15. ID15 is the photo

            sketch. So can I mark pages 8 to 12, P25 and pages 4 to 7 as P14.

 

Datuk: Can you please look at Page 12 of PBD2? Can you tell the court where you got the original copy from?

 

Yap: From the Chinese Chambers of Commerce.

 

Datuk: Who gave it?

 

Yap: Those shop owners in the Sabindo area – they submit to the Chambers.

 

Datuk: So there are 5 Blocks here marked in the plan. Are these the 5 blocks that they are objecting?

 

Yap: Yes.

 

Datuk: No further questions.

 

Cross Examination

 

Ronny: These copies are in Mandarin, can my learned friend certify a translation in English? Don’t

             bother about the signature.

 

Judge: How many are in Mandarin?

 

Datuk: Page 4 and 8 are in Mandarin. Page 3 not tendered yet.

 

Judge: Only 2 pages in the document?

 

Datuk: Yes.

 

Judge: Can you provide the translation?

 

Datuk: Yes.

 

Ronny: Much obliged, I have no further cross examination on this witness.

 

Judge: You are released, Datuk Yap. Do you have any more witnesses?

 

Datuk: I call my next witness Encik Jukelin.

 

Witness PW6 Jukelin Solindong called. Sworn statement of truth in Malay.

 

Examination-in-chief (PW6)

 

Malay Interpreter called.

 

Datuk: Encik Jukelin, you have witness statement. Can you please look at it, and confirm if that is your

            signature?

 

Jukelin: Yes.

 

Datuk: Can you confirm the witness as correct?

 

Jukelin: Yes.

 

Datuk: Is there anything you would like to add or amend in your statement?

 

Jukelin: No.

 

Judge: Do you want to tender the witness statement?

 

Datuk: Yes.

 

Judge: PW6.

 

Datuk: Encik Jukelin, I’d like you to enlighten the court of the State Reserve Open Space. May I start

            with Page 1 of PBD3? Can you tell the court what is this document?

 

Jukelin: This is a measurement plan for PT No. 71100166

 

Datuk: I have a clearer copy here. Now can you tell the court when was this plan approved?

 

Jukelin: 15 May 1974.

 

Datuk: Can you please look at the plan marked yellow? Can you tell me what was described on that

            piece of land?

 

Jukelin: This plan.

 

Datuk: Can I now refer you to Page 1 of PBD? I have a clearer copy here. Can you tell the court what is

            this document?

 

Jukelin: This is a layout plan sub-division.

 

Datuk: Can you tell the court when was this plan approved?

 

Jukelin: Plan 10124910 approved on 2 July 1975.

 

Datuk: Can you look at the yellow portion of the plan? Can you tell the court what is described in that

            portion of the land?

 

Jukelin: According to this plan, it is Open Space (State Reserve).

 

Datuk: Can I now ask you to compare the yellow portion of this plan and the plan before I have just

            shown you? I would like to ask whether this 2 portion are of the same location?

 

Jukelin: Yes.

 

Datuk: Can I also ask you to confirm the “esplanade” in 1974 has now been changed to Open Space

            (State Reserve) in July 1975.

 

Jukelin: Confirmed.

 

Datuk: Can I now invite your attention to page 73 of PBD2? Can you tell the court what is this

            document?

 

Jukelin: This is a locality plan.

 

Datuk: Can I now ask you to compare the yellow portion this document (PBD1 Page 1) and the

            document (PBD2 Page 73) I have previously shown you? Are this 2 items of the same location?

 

Jukelin: Yes.

 

Datuk: Can you tell the court what is described on the yellow portion of PBD2 Page 73?

 

Jukelin: State Reserve.

 

Datuk: May I now invite your attention to Page 18 of PBD2? Can you tell the court what is the name of

            this document?

 

Jukelin: It is a Pre Measurement Plan of Sempadan State Reserve at Sabindo Town with Plan No.

             10128169.

 

Datuk: Now, can you please look at the endorsement on the foot of the document. Can you confirm that

            this certification by you is correct?

 

Jukelin: Yes. Confirmed.

 

Datuk: Can you also confirm that the re-survey carried out by you was on 5 December 2005?

 

Jukelin: Yes.

 

Datuk: Can I ask you to tell the court, when was this plan approved?

 

Jukelin: 20 March 2006.

 

Datuk: Can I now ask you to compare this plan (Page 18 PBD2) and page 1 PBD1 on the yellow

            portion? And my question is this – are these 2 item of the same location?

 

Jukelin: Yes.

 

Datuk: Who instructed you to carry out the re-survey of this plan?

 

Jukelin: The District Surveyor.

 

Datuk: Can you please tell the court what was the purpose of this plan being re-surveyed?

 

Jukelin: The purpose is to determine the borderline of the state reserve.

 

Datuk: And what as the result of your re-survey?

 

Jukelin: The result is the area is a state reserve.

 

Datuk: Can you please look at your re-survey plan (Page 18 of PBD2) again? How big is the area? The                       

            yellow portion.

 

Jukelin: 0.700 hectares or 1.729 acres

 

Datuk: Can you tell the court, since the date of your re-survey, is there any change with regard to the

            location, measurement and size as marked in your plan Page 18 PBD2?

 

Jukelin: No.

 

Datuk: All the plan I have referred you to Page 1 PBD3, Page 1 PBD1, Page 73 PBD2, Page 18 PBD2,

            are all these plans belonging to the government?

Jukelin: Yes

 

Datuk: Do you have custody and possession towards them?

 

Jukelin: Just under the custody of the government.

 

Datuk: Under which you have access?

 

Jukelin: Yes.

 

Datuk: Can you confirm that any member of the public is entitled to a copy of the plan after paying a

            fee?

 

Jukelin: Yes.

 

Datuk: So you agree that all these documents are public documents?

 

Jukelin: I agree.

 

Datuk: Can I tender these documents?

 

Judge: Any objection?

 

Ronny: No objection. – I thought we agreed that any documents referred will be deemed as tendered?

 

Judge: If authenticity is agreed then it will be deemed as tendered.

 

Datuk: Much obliged. Can I now turn your attention to Page 74 PBD2? May I refer you to the yellow

            portion of the land – Block C and D? Is this the same piece of land described in your re-survey

            plan?

 

Jukelin: Yes.

 

Datuk: Is it the exactly the same size and measurement? Before that I’d like you to compare your re-

            survey plan and Block C and D. And I’d like to ask you, is the piece of land on which Block C

            and D are located are of exactly the same size and measurement as the piece of land in your re-

            survey plan?

 

Jukelin: Yes.

 

Datuk: I have no further questions.

 

Cross-Examination

 

Ronny: Did the Director of Land and Survey Dept instruct you to come to testify in court this morning?

 

Jukelin: No.

 

Ronny: Did the District Surveyor of Tawau instruct you to come and testify in court this morning?

 

Jukelin: No.

 

Ronny: Do you agree with me that you are not testifying in court this morning on behalf of the Land and

             Survey Dept?

 

Jukelin: No.

 

Ronny: When you don’t agree with me, you don’t agree not testifying on behalf of the Land and Survey

             Dept or you don’t agree with me?

 

Jukelin: Coming to court to testify on behalf of Land and Survey Dept.

 

Ronny: If you are testifying on behalf of Land and Survey Dept, can you inform the court, who instruct

             you to come and testify in court today.

 

Jukelin: I received to be summoned by the Court.

 

Ronny: So nobody in the Land and Survey Dept called you to come to testify in court, do you agree?

 

Jukelin: No one from the Land and Survey told me to come and testify in court.

 

Re-examination

 

Datuk: Encik Jukelin, is it correct to say to testify in court because there was a writ of subpoena served

            on you?

 

Jukelin: Yes.

 

Datuk: I want you to confirm again, all the evidence but you gave today is the whole truth, the truth and

            nothing but the truth?

 

Jukelin: Yes.

 

Datuk: Want you to confirm that you gave evidence in your capacity as surveyor attached to the Land

             and Survey Dept Tawau?

 

Jukelin: Yes.

 

Datuk: I have no further questions.

 

Witness is released.

 

Judge: Hearing is adjourned to 15th June 2009 at 3.00pm and then we continue until end of the week.

 

Counsels: Much obliged.

 

Ended at 12.35pm

Sabindo Open Space Trial- Day 2 June 20, 2009

Posted by wong jimmy in Open Space.
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DAY 2                                  NOTES OF PROCEEDINGS                     11 JUNE 2009

9.15 am

CHONG SUI JIN & 9 ORS

v

AGGASF SDN. BHD.

& JERAMAS SDN. BHD

v

MAJLIS PERBANDARAN TAWAU

 

Civil Suit No. T(21) 52 2005

Civil Suit No. T(21) 53 2005

 

Datuk: The parties are as before. My learned friend, Ronny Cham is present.

            There are 2 minor matters that I wish to address to the court.

            The 1st is a minor correction on the notes of proceedings at Page 12, Line 300 and 304.

            At Line 300, I believe the witness also mentioned that they cannot build on open space.

            If we take the answer no, and went on to say, “cannot carry out developments because it is open

            space”.

            At Line 304 would be Question 18, the word “such” land was used.

 

Brendon: We need no objection to these amendments but if we could call the witness to clarify those

                statements again. However, we have no objection to it. Perhaps in the future, the witness

                would be returned to the witness box to confirm this.

 

Judge: I think it’s better we ask the question to the witness again since he is going to be re-called. I think

           the 2nd one is just a typo error. We will ask PW2 again as to the answer.

 

Datuk: The 2nd matter is the clarification to the agreed documents as it is. Looking at the notes, I stand

            correct that the documents mentioned in the witness statements although some of them are

            agreed documents, some of those documents may not have been tendered as exhibits.

 

Judge: You mean those documents that authenticity is not disputed?

 

Ronny: Regarding these documents as to authenticity and not content, in other practice, we refer to the

             page number. But by mere reference to the page number to that document, it will be known as

             exhibits. It will be cumbersome to refer to each document as we go on.

 

Judge: Maybe I haven’t put it as clear as Mr. Cham did. The authenticity of documents will be treated as

           exhibits as marking them one by one is very tedious. We will treat it as exhibits.

 

Datuk: I don’t have a problem with that at all. I just want an understanding as it will save the court a lot                                                                         

            of time.

 

Judge: I agree with Mr. Cham with this for record. There is no need to mark those documents in which

           the authenticity is not in dispute. Mere exhibits will be used as evidence in trial.

 

Datuk: Yang Arif, there are still a couple of documents in which we have no agreed. I wish to tender

             those witnesses to be cross-examined.

Judge: You mean some documents of authenticity is not agreed, and you wish to examine them?

 

Datuk: Yes, through cross-examination.

 

Ronny: If the court could call Mr. Adrian Chong Sui Chiam. And those who are witnesses who are not a

             party to this trial to wait outside the court.

 

1st Defendant calls 1st Witness – Mr. Adrian Chong Sui Chiam (PW1)

(Sworn – solemnly & sincerely declare the evidence given in this court is the whole truth, the truth and nothing but the truth.)

 

Cross Examination

 

Ronny: Mr. Chong, in your outstanding length of service as Town Planner, would you agree with me,

             that under the Town Planning Law in Sabah, there is no definition regarding “open public

             places”and “public places”?

 

Dr Adrian: Yang Arif, under the Town Planning law, definition is given to open space. As regard to the

                  “public places” and “open public places”, there may be definition in other references.

                   Planning law definition is only on open space.

 

Dr. Adrian: I just want to reconfirm, the definition under Town Planning law, is open space.

 

Ronny: Do you know what other law defines open public places and the term public places?

 

Dr Adrian: No.

 

Ronny: When a developer submit application to your department for planning or zoning advise, does the

             department concerned with the ownership of the land?

 

Dr. Adrian: Yes.

 

Ronny: Now, in the development projects in this case, did your department verify who were the owners

            of the land involved?

 

Dr. Adrian: Yang Arif, yes. He was asking to know the land owner.

 

Ronny: Do you agree with me, that Block A, B and E, they were owned by Sabindo Nusantara Sdn.

             Bhd.?

 

Dr. Adrian: Yang Arif, my understanding of the ownership is that, originally, Nusantara owned the land.

                    The 10% open space was set aside for that purpose. When this application was referred to

                    us by the Local Authority, Tawau Municipal Council, it was mentioned that the

                    developments on that land was a Joint Venture agreement.

 

Ronny: So you were dealing with the applicants at the time based on the Joint Venture agreement at the

             time?

 

Dr. Adrian: Yes

 

Ronny: If I could refer my Lady to PBD, page 3 to 5? Mr. Chong, If you could see the copy of the title

             no. TL 107523008 carefully, on page 3, the special term stated that “this plan is for purpose of

             open space”. The bottom part of page 3, “to complete before month 9, 1908. the development on

             the said land …… and to the satisfaction of the local authority”. My question is this, do you

             agree with me, it seems that for this land to be used as open space, it required a further

             development plan has to be submitted as to how these open space can be used for that purpose, 

             do you agree with me?

 

Dr. Adrian: Yang Arif, *nodds*

 

Ronny: If the open space is not developed, the open space would remain an unused wilderness.

 

Dr. Adrian: Yes.

 

Ronny: In your experience, do you have a guideline in your department as to how an open space can be

             used?

 

Dr. Adrian: The purpose of open space – there is a list of them – a kind of uses permitted. It could be a

                    recreation playground, like football field, basketball or badminton court, or local games. Or

                    even just a plain area for sitting down. Also approved for the use of swimming pool –

                    depending on the recreation. It can also be used for use for indoor badminton, or basketball

                    court or indoor building for bowling and gymnasium for recreation purposes. Besides all

                    these recreation, this open space also allows operation of a café, restaurant, for the people

                    using recreation there.

 

Ronny: I will show you a document regarding a use you confirm. I would like to refer the witness to

            Page 12 of DBD1. Mr. Chong, can you tell the court what is this document?

 

Dr. Adrian: Yang Arif, this document is the memorandum to the plan to the town that cover Tawau town

                    and all the towns and country Ordinance in Sabah.

 

Ronny: Is this Zone and Planning Uses chart plan used by the Town and Country Planning Dept Sabah?

 

Dr. Adrian: Yang Arif, the Town Planning Dept prepared the plan for all towns in Sabah, including

                    Tawau. This plan, including the chart in practice, would be adopted by the local authorities

                    and thereupon, will not only be used by the Town Planning Dept but would be used in all

                    local authority in Sabah.

 

Ronny: When you said this plan, you say there is a Master Town and Country Development Plan for the

             whole of Sabah?

 

Dr. Adrian: In relation to this case, I would say, each town in Sabah has its own local plan, zoning plan,

                   including Tawau.

 

Ronny: Just want to clarify that this chart is attached to a plan, which plan are you referring to?

 

Dr. Adrian: Yang Arif, I’m not comfortable with the word attach. I used the word “Include”. This plan

                    refers to Tawau  Local Plan or Tawau Municipal Council land use plan. This chart is part

                     and parcel of this plan.

 

Ronny: Was this chart prepared by your office?

 

Dr. Adrian: I would say this was prepared by the Town and Regional Planning Department.

 

Ronny: If you look at this chart, we have highlighted, open space and recreation. If you look at this way

            down and read the right hand side – at the very top here it says 

            “Shop/Restaurant/Café/Supermarket”. I also refer to the bottom left column, the big black dot

            under Note says “denotes discretionary use within each zone” Question is this, does it mean that

            the Local Authority has a discretion to use an open space for the purpose of

            “Shop/Restaurant/Café/Supermarket”, they have a discretion, am I right?

 

Dr. Adrian: Yang Arif, if you look at the chart, it denotes the round dot, with an addition no. 1 next to it.

                    That 1 is explained in the 2nd Column – the first dot on the top is explained as “Café to serve

                    recreation use only”.

 

Ronny: My Lady, this document, Page 12 is not agreed by the parties, as this is a document issued by

             the parties when this witness was the Director of Department. I would  like to tender this

             document through this witness as D1 (The Zone and Land Use Chart)

 

Judge: Any objection?

 

Datuk: No.

 

Ronny: Much obliged. I’d like to refer the witness back to Page 3, 4 and 5 of PBD – in particular to Page

             4, the plan. Mr. Chong, you know that the existing half completed Block E is situated on this

             open space. You agree with me?

 

Dr. Adrian: Yes.

 

Ronny: Now, Mr. Chong, do you agree with me that the Local Authority can make use of this half

             completed structure for recreational purposes?

 

Dr. Adrian: Yang Arif, yes.

 

Ronny: Do you agree with me, it is the discretion of the Tawau Local Authority as to what they would

             like to use the half completed structure according to the Tawau Local Plan?

 

Dr. Adrian: Yes.

 

Ronny: If I may turn the witness to Page 6, 7 and 8. This title no. TL 107522985 on page 6, is this title

            reserved for road reserve and car park only under special terms?

 

Dr. Adrian: Yes.

 

Ronny: Now, in your experience as a Town Planner, road reserve and car park in a commercial

            development is usually under the control of which department after the project had been

            completed?

 

Dr. Adrian: In practice, normally, this car park and road reserve is part of the infrastructure will be

                    handed to the Local Government.

 

Ronny: Under the Town Planning Law or in your experience, can the Local Authority have a discretion

             to use this car park reserve and road reserve for other purposes?

 

Dr. Adrian: Yang Arif, the car park and the road, it is the responsibility for the Local Authority to

                    maintain. The Local Authority cannot discard or reduce the car park and the road. It has to  

                    be in that particular place. But if the Local Authority decide to increase the capacity/units of

                    car parks, let say to 200 or 500, and not to reduce it to 50 if they have a replacement. With

                    the additional increase, then the Local Authority, can then develop or use the land for

                    other purposes.

 

Ronny: Mr. Chong can you look at page 59 to 72 of DBD Encls. 129? This is an agreement between the

             Tawau Municipal Council and Readymade Sdn. Bhd dated 28th January 1993. In particular,

             please refer to Page 72, the last page of this agreement. You will find the word “letak kereta”.

             Now compare this plan to page number 7 of PBD that you were looking at just now. Can you

             confirm that “letak kereta” on page 72 of PBD, is the centre part of plan (this car park reserve)

             of page 7 PBD1 – held under title no. TL 107522985 on Page 6?

 

Dr. Adrian: Yes, Yang Arif.

 

Ronny: If you may look at Page 60 of DBD, the preamble No.2, 3rd line “The Council has… the car park

             cum commercial complex…” My question to your Mr. Chong is this, as far as the Council is

             concerned, they are entitled to develop the car park reserve into a car park cum commercial, am

             I right?

 

Dr. Adrian: Yes.

 

Ronny: So as far as this agreement is concerned, the Council is supposed to build a car park cum

             commercial centre, on this particular reserve, am I right?

 

Datuk: May I just interrupt. Before my learned friend can put this question to him, the witness

            understand the agreement and project that the Council is going to undertake. At this stage, there

            is no way to know if there is personal knowledge on this agreement.

 

Ronny: My Lady, my question on this agreement to this witness is for the purpose of establishing the

             land use of this piece of land under Town Lease No. 107522985. It is relevant because Block A

             and B, the subject matter of this suit is situated on the same piece of land. And this agreement

             dated 28 January 1993 is a development project on the same piece of land. That is why this

             agreement is relevant and we will tender this document through the Secretary of Town Planning

             marked as ID as non agreed document.

 

Datuk: We must establish if this witness have personal knowledge on this project before he can answer

            the question.

 

Judge: I think what Mr. Shim raised is quite fair.

 

Ronny: Much obliged. If you look at page 7, especially in this big open space here, during your time as

             Director of Town and Country Planning Dept, were you aware that there was also a Joint

             Venture agreement between the Tawau Municipal Council and a private developer to develop

             this car park?

 

Dr. Adrian: Yes.

 

Ronny: Now, did the Council or the private developer apply to your department for advise?

 

Dr. Adrian: Yang Arif, they MAY have submitted to our Tawau Division Planning Office (branch

                    office) for advise. May I know what year?

 

Ronny: Somewhere in 1993, are you aware of this agreement?

 

Dr. Adrian: Yes, for this particular project.

 

Ronny: If I may refer you to page 59 to 72 of DBD, can you confirm that this is the agreement entered to

             by the TMC and a private developer to that car park reserve?

 

Dr. Adrian: Yang Arif, as a Director my role is to deal with planning matters. If you ask me to confirm, I

                    may not be the appropriate person to confirm. I think it is the Local Authority. I can agree

                    that this is the agreement but I cant confirm.

 

Ronny: If you look at page 7 again of PBD, the plan that is attached to the title, during your time as a

            Director, are you aware that there was a building strictly for commercial purpose only erected on

            this car park reserve title? NOW, not at the time. In your opinion, is it appropriate to erect a

            commercial building on car park reserve.

 

Dr. Adrian: Allow me to refer what we discussed about car park reserve and road reserve. As I mention,

                   the existing car park provision (no. of car park in a particular area), if the Council can allow

                   it to increase the units, let’s say 100 to 200 to 500 units, then the extra units can be used as a

                   plan for additional development. OR if they get a replacement for the same number of land

                   then they can allow development (commercial building) on the land.

 

Ronny: Mr. Chong, you retired sometime in 2007, am I right?

 

Dr. Adrian: Yes, Yang Arif.

 

Ronny: Before retirement, were you in contact with your Tawau office often?

 

Dr. Adrian: Yes, Yang Arif.

 

Ronny: Before your retirement, were you aware on the fact that there was a commercial building being

             constructed on the land that was reserved for car park?

 

Dr. Adrian: Yang Arif, I was told about that development.

 

Ronny: You can confirm now that the building build thereon is a commercial premise, not a car park?

             Can you confirm that?

 

Dr. Adrian: Yang Arif, again for me to confirm this, what is going on currently, is better for the Local

                   Authority to confirm.

 

Ronny: My question to you is, the building that is being erected on the building reserve now, it is a car

             park or is it a mere commercial building?

 

Dr. Adrian: Yang Arif, again, the Local Authority is the relevant authority to confirm this.

 

Ronny: As an experienced Town Planner, are you aware that the particular building is known as Grace

             Plaza?

 

Dr. Adrian: Yes.

 

Ronny: Grace Plaza is a commercial building. Do you agree with me?

 

Dr. Adrian: Yes.

 

Ronny: Can I refer the witness to Page 7 of PBD – this particular “yellow highlighted rectangular box”

             on the plan? That is the location of Block C and D. Can you confirm that the piece of land is not

             part of this title, TL 107522985?

 

Dr. Adrian: Yang Arif, I can only give my opinion. I cannot confirm. It looks like the open space

                    provision of the whole area.

 

Ronny: That is not my question. Mr. Chong, I’m sure in your experience, you know how to look at a

             piece of title. The darkened area usually shows the title land. My question to you is, is this

             highlighted yellow part held under TL 107522985?

 

Dr. Adrian: Yang Arif, looking at this plan, the whole area, and the land actually have a lot of sub-

                   division, in to small, I can’t tell whether it is part of the land. It is the land and survey

                   department

                    area, because of the sub-division to smaller lots.

 

Ronny: Can I refer the witness to page 3, 4 and 5 of PBD. Top right hand corner Town Lease. On page

             4, how do you know the area covered under this title. Can you tell the court, which area

             demarcated in the plan, representing the land covered by in this land? Would you agree with me,

             it is the darkened colour or portion in the land?

 

Dr. Adrian: I think I need a bit of time.

 

Ronny: My question is yes or no.

 

Dr. Adrian: I’m confused. The darkened area – there are 2. Which one are you referring to?

 

Ronny: If I could highlight the area again.

 

Dr. Adrian: The answer is yes.

 

Ronny: I wish to refer the witness to his witness statement, paragraph 6. Do you have a copy of your

            witness statement? You mentioned in paragraph 6 the approval of the Tuan of Yang Dipertua

            Negeri (TYT). Can you explain his role in this planning approval?

 

Dr. Adrian: When Council or Local Authority passed a resolution to prepare a land/zoning plan, it may

                    cover the whole district or the town area. When the plan has been prepared, it may be

                    adopted by the Local Authority.

                    The draft plan would be submitted to the central town and country planning board for

                    further adoption after public objection have been made. Thereby, the draft plan will be

                    further submitted to TYT for approval. The State Secretary may thereby sign the plan on

                    approval on behalf of TYT.

 

Ronny: So the TYT is personally not involved in the process. It is purely constitutional. If you look at

            paragraph 7, you have been shown 2 development plans. (Refer to W/S). My question is this, was

            it necessary for the Tawau Municipal Council to submit that 2 Dev. Plans for Central Board

            approval?

 

Dr. Adrian: Yes, it is necessary.

 

Ronny: Can you tell the court why?

 

Dr. Adrian: Yang Arif, this is under the requirement of Town and Country Planning Ordinance.

 

Ronny: Can you be a bit more specific? Under which section in which it may be used to submit to the

             Town and Country Planning?

 

Dr. Adrian: If you have a copy of the Ordinance?

 

(Court clerk goes to library to search for Ordinance)

 

Adjourned for 20 mins.

 

Resumed at 11.45am.

 

Ronny: Would you be able to tell the court now under which requirement of Town and Country

             Planning Ordinance?

 

Dr. Adrian: Yang Arif, Section 15(1), 15(2)  and 15(3) of the Town and Country Planning Ordinance.

 

Ronny: Can you read out what it says?

 

Dr. Adrian: (Reads out provisions S15(1) to (3))

                    S15(1) Subject to the succeeding provisions, no person shall, within this local authority,

                    carry out construction, development… repair… until after 6 months of approved scheme

                    being taken unto such land”

 

Ronny: Is it right to say that there way no reference made from the sections read to open space or road

             reserve?

 

Dr. Adrian: Only to development plan. As regards to open space requirement, if land is less than 1 acre,

                   open space is not required. As regarding the road reserve, when a piece of land is already

                   fronting the road reserve when there is a development, then a road reserve is not required.

 

Ronny: You are not answering my question. I’m referring to Page 7. Under what law….

             s15 has no reference to open space or road reserve. Do you agree with me?

 

Dr. Adrian: Maybe it is not specifically to open space. I agree there is no reference.

 

Ronny: I would like to refer to paragraph 4 of the witness statement. You stated there that you replied on

            9 July 2004 that “My department had no objection to the development plan…” Does it mean that

            if the 2nd Defendant can find a replacement of open space in the town area, then their

            development can be approved?

 

Dr. Adrian: Yang Arif, my letter stated that IF the replacement can be fulfilled, there is no objection to

                    the proposal. The meaning of no objection in my letter does not mean approval. Approval

                    lies with the Local Authority, not the Town Planning.

 

Ronny: Would you agree that your letter dated 9 July 2004 was conditional?

 

Dr. Adrian: Yes.

 

Ronny: Has the local authority the right to revoke any reserve within their locality?

 

Dr. Adrian: I need to understand the “right to revoke any reserve”.

 

Ronny: For example, if a piece of land is reserved for an open space, can the local authority revoke that

             open space destination later on?

 

Dr. Adrian: Yang Arif, This is more the authority of the Local Authority. I cannot comment. I’m only on

                    the role of Planning. Like this, because I cannot answer yes or no. I need to explain. When

                    there is an open space within an approved development, if the Local Authority thinks its

                    proper to relocate the open space, it may do so. If that open space is an improvement for the

                    local community. If the open space is on the hill slope, the Local Authority may relocate it

                    to a flat land. In such instances, the Local Authority may approve such changes. But not

                    revoking it. That is the role of the Local Authority. As far as development decision is

                    concerned, it is the role of the Local Authority. It is the exclusive decision of the local

                    authority concerned.

 

Ronny:  When the local authority approve a development plan, was that development plan forwarded to

              your department in general terms?

 

Dr. Adrian: Yes.

 

Ronny: In your experience as Director of Town and Country Planning dept, it is your duty to verify a

             legality that is joined between a local authority and private developer?

 

Dr. Adrian: No.

 

Ronny: I have no more further questions.

 

Witness PW1 to be recalled at 1.30pm.

 

Adjourned to 1.30pm.

 

Resumed at 1.36pm.

 

Witness PW1 called back to the stand for re-examination.

 

Re-Examination

 

Datuk: Yang Arif, parties are as before. I believe page 12 of DPD1 has been entered as an exhibit.

 

Judge: Yes, it has. D1.

 

Datuk: Much obliged.

 

Judge: Mr. Chong, earlier on you said that although there is no definition of open public places, there is

           a meaning of open space, right? And does your department have a strict policy on open space?

 

Dr. Adrian: Yes.

 

Datuk: Would you also say that the Central board applies a very strict policy?

 

Dr. Adrian: Yang Arif Yes.

 

Datuk: Please turn to page 3 of your witness statement.

 

Ronny: May I take objection, Yang Arif. I never referred the witness to Page 3. Therefore he cannot be

             re-examined on that.

 

Datuk: I have not asked the question yet Yang Arif. Paragraph 3 deals with open space. I’m asking him

            whether he stands by his statement in paragraph 3.

——–

Datuk: In the case of commercial land, do you agree with me that your Department as well as central

            board adopt a more strict policy on open space?

 

Dr. Adrian: With regards to open space policy, we based on the provision of the Town and Country

                   Planning Ordinance.

 

Datuk: Is it obvious to you that open space cannot be used as commercial purpose?

 

Dr. Adrian: Yes, Yang Arif. Subject to the provisions of the Chart. (D1)

Datuk: And the chart does not give the Local Authority the discretion to use open space as a

            commercial use. May the witness be shown D1?

 

Dr. Adrian: Yang Arif, the word commercial as mentioned by Datuk, I need a bit of elaboration to relate

                    it to the chart. Allow me to.

 

Judge: Go ahead.

 

Dr. Adrian: The chart shows under the “commercial” – all these criteria (showroom, office, bank, hotel,

                    cinema,… open car cell) are prohibited under open space except

                    “shop/restaurant/café/supermarket” as it is considered commercial.

 

Datuk: Is it under Dot 1 for “shop/restaurant/café/supermarket”?
Dr. Adrian: Yes.

 

Datuk: Please explain what Dot 1 means.

 

Dr. Adrian: Yang Arif, it says here “shop/restaurant/café/supermarket” served for recreational use only.

 

Datuk: Mr. Chong, do you agree with me that these shops and café usage on open space – it is for very

            limited use only – i.e for recreational use only?

 

Dr. Adrian: Yes.

 

Judge: And for this particular item, do you agree that the Local Authority cannot allow shop houses to

           be built on open space in commercial area?

 

Dr. Adrian: Yang Arif, from planning department point of view, I would advise the Local Authority

                   them not to do so. But I cannot tell them they cannot do that because it is their discretion. I

                   can only give technical advise.

 

Datuk: Please look at the exhibit again, is there a difference between the Dot and the Dot 1?

 

Dr. Adrian: There is a slight difference. Yes.

 

Datuk: Do you agree in under the development of the Dot, the local authority have a discretion? In

            general.

 

Dr. Adrian: Yes.

 

Datuk: In the case of Dot 1, the Local Authority has NO discretion. Do you agree?

 

Dr. Adrian: Yang Arif, I would say for Dot 1, the Local Authority has the discretion specifically

                    mentioned in Dot 1.

 

Datuk: That is “shop/restaurant/café/supermarket”. Yes? And those                    

            “shop/restaurant/café/supermarket” must be for recreational purposes only. Yes?

Dr. Adrian: Yes, in accordance to recreational purposes only.

 

Datuk: Do you also agree that in the entire chart here, only the open space has the Dot 1?

 

Dr. Adrian: No.

 

Datuk: In the exercise of the Local Authority discretion to develop land, does it require the approval of

            the Central Board?

 

Dr. Adrian: I take it as lower authority – or any?

 

Datuk: Any

 

Dr. Adrian: The process of planning where a plan for a district or a town, which had been approved by

                   TYT, such plan is called the Approved Statutory Plan, not a draft plan. In such approved

                   plan, when the Local Authority receive and consider a development plan submission, such

                   development plan need to be referred to the Central Board for approval. The Local Authority

                   itself has the planning authority to approve such development plan.

 

                   In cases where it is still a draft plan, a development plan is required to be submitted to the

                   Central Board for approval.

 

 

Datuk: In such situation, is section 15(2) applicable?

 

Dr. Adrian: Yes.

 

Datuk: In the Tawau Municipality, does it have an approved plan by the TYT?

 

Dr. Adrian: Yang Arif, Yes.

 

Datuk: Only draft plan?

 

Dr. Adrian: Yes.

 

Datuk: In the case of Tawau, is section 15(2) applicable?

 

Dr. Adrian: Yes.

 

Datuk: Where the Tawau Municipal Council desire to develop open space, is the Council required to

            submit the plan to the Central Board for approval?

 

Dr. Adrian: Yang Arif, if the plan is on open space, and for landscaping (gardening) or for development

                    for football pitch, basketball court, … etc, need not be referred for approval of Central

                    Board. If however the proposed development consist of a multi-storey buildings for

                    recreational activities, such as a gymnasium, bowling or other related activity, it has to be

                    referred to the Central Board for approval.

 

Datuk: Considering such plan, would the Central Board apply the policy and idea on open space?

 

Dr. Adrian: Allow me to adjust my statement. When I said the development for recreational purposes

                   like tree planting, landscaping, or basketball court – this kind of recreational need not be

                   referred to the Central Board. And if the activities for this is development for gymnasium,

                   bowling or other related activity, it NEED NOT to be referred to the Central Board for

                   approval. Only commercial building when proposed on the open space such plan has to be

                   referred to the Central Board for consideration.

 

Datuk: Are you familiar with Bandar Sabindo?

 

Dr. Adrian: Yes.

 

Datuk: Is there anywhere that the number of car parks can be increased in Bandar Sabindo?

 

Dr. Adrian: To increase the car park, it you were to use old street parking, it is very difficult, although

                   not possible. Unless you built a multi-storey car park, it is still possible to increase.

 

Datuk: Would the multi car parking affect the traffic flow in Bandar Sabindo?

 

Dr. Adrian: The Bandar Sabindo development is served by internal road circulation as well as major

                   road surrounding the commercial land. With that kind of road hierarchy, the multi-storey car

                   park will not adversely affect the traffic circulation. Unless you say the multi car park

                   consists of 5000 unit, then it will have an adverse effect. Then we would normally require

                   traffic impact stylist to look into the matter.

 

Datuk: Have you hired a traffic impact stylist in Bandar Sabindo?

 

Ronny: I have been giving a lot of lee weigh to my friend to lead and there is no cross examining on

             road traffic.

 

Datuk: It is in the evidence.

 

Ronny: My Lady, I have never asked about the number of car parks in the Sabindo area. It is not in the

             evidence.

 

Judge: Yes, no questions asked. I don’t think we have to go into that, do we?

 

Datuk: Ok. Mr. Chong, please look at page 3 of PBD. Please look at the endorsement at the bottom.

            Please tell the court what does that mean?

 

Dr. Adrian: Yang Arif, this is the gazette reference 728/68 Plan No. TP2. It signifies the gazettement of 

                    the land as open space under plan TP22.

 

Datuk: Please also look at the first 2 lines to the endorsement.

 

Dr. Adrian: It says “Subject to the provision of the Town and Country Planning Ordinance 1950”

 

Datuk: Looking at the preceding paragraph of the title and the endorsement (especially the first 2 lines

            of the endorsement), what is your understanding to the development of the said land?

 

Dr. Adrian: Yang Arif, my understanding is this. As the paragraph stated in simply English – “to be

                    completed in month September 1978 ….. Local Authority”

 

Datuk: My learned asked you about the existing building (Grace Plaza) of the car park and the road

            reserve. And you also know the nature of the Joint Venture Agreement between the TMC and the

            private developer.

 

           Can you see any multi storey car park in that building (Grace Plaza)?

 

Dr. Adrian: No.

 

Datuk: Can I turn your attention to page 6 which my learned friend referred you to.

 

Ronny: My learned friend objected to me in referring to that agreement. As a result of which all the

             questions to which have all been abandoned. It is not an agreed document. It has not been

             presented to the court. Question is my learned friend going to refer to that document? If so, I

             would have to cross examine further on that document. Just to remind, my learned friend said

             the witness doesn’t know anything about the agreement.

 

Datuk: I never reject my learned friend to refer on that document. I also did not object my learned friend

           on asking about that document. And there was a specific question pertaining to these documents

           where my learned friend referred this witness Preamble No. 2, Line 3. And my learned friend

           specifically mention this word “car park cum commercial complex”. With due respect, I don’t see

           why I cannot ask questions on this.

 

Judge: Datuk Shim is on liberty to ask those questions.

 

Datuk: Q107. Can I read it out?

 

Ronny: My Lady, on page 36, my learned friend said, …

 

Judicial Intervention and objections raised

 

Datuk: Since you said there is no multi-storey car park in the building, do you agree that the building

            was erected in breach of the Joint Venture agreement as well as the land title?

 

Judge: And this is in with respect on? Specific question to Q107?

 

Datuk: Yes. On question on “car park cum commercial complex” in Q107.

 

Judge: Please rephrase your question.

 

Datuk: Would you say that the building without car park is in breach of the agreement as well as the title

            conditions, mentioned in Page 6 of PBD?

 

Dr. Adrian: I need a bit of explaination on this. Earlier on, I was asked about this Grace Plaza whether

                   I know it, I said yes. I know it because I saw it as it is now. But to go back to a certain point

                   whether that development which the land title provisioned, it is more appropriate for the

                   Local Authority to answer this question.

 

Datuk: May I refer you to Block E on the open space? Are you aware where Block E is located?

 

Dr. Adrian: Yes.

 

Datuk: Can you confirm that it is located next to Tai Yuen supermarket?

 

Dr. Adrian: I know there is a supermarket but not sure of the name.

 

Datuk: Do you also know that there is a lot of shop houses in that area?

 

Dr. Adrian: Yes.

 

Datuk: In relation to open space, do you agree, from the planning point of view, it would be appropriate

            to use Block E as open air café?

 

Dr. Adrian: This is very subjective subject. The relevance/appropriateness of an open air in this location

                    is very subjective. If from the planning point of view, if we locate the open air café, that

                    location would be a bit dusty – but if you put it with air conditioning, it can be done. So it is

                    subjective whether it can or cannot be done.

 

Datuk: May I refer to your letter where you say there is no objection subject to the replacement? Can

            you explain what you mean by replacement in the context of your letter?

 

Dr. Adrian: Yang Arif, it simply means to use or develop this particular area – you need to replace it

                   with an alternative open space.

 

Datuk: What about the size?

Dr. Adrian: Not necessary be the same.

 

Datuk: That’s all.

 

Ronny: My Lady, if you are ready, can we cross examine the next witness? But have a short 10 minute

             break first?

 

Break for 10 minutes.

 

Resumed at 3.28pm

 

Witness PW2 called to the stand – Mr. Samson Chin Chee Tsu

(Sworn – solemnly & sincerely declare the evidence given in this court is the whole truth, the truth and nothing but the truth.)

 

Datuk: As I said earlier on, I have a few exhibits to be referred to this witness. May the witness be

            shown PBD3 page 22.

 

Samson: This is based on the photo taken by my staff and showing this sketch plan based on a photo – is

               trying to show Dunlop Street and in particular open Space Block D.

 

Datuk: Is this plan taken by you?

 

Samson: No. My staff.

 

Judge: Do you have objection?

 

Ronny: Yes, I have objection.

 

Datuk: Do you have power, custody and possession of this photograph?

 

Samson: No.

 

Datuk: Can be tender it first?

 

Judge: Tender it as ID15.

 

Datuk: Please look at page 10 and 11 of the same bundle. Are you the maker of this document?

 

Samson: Yes, Yang Arif.

 

Datuk: May it be tendered as P16.

 

Datuk: Please look at pages 64 to 69 of PBD. Can you tell the court the nature of this document?

 

Samson: This was the written reply from the Dewan to my question no. 41 during the seating of my

               State Assembly 2005.

 

Datuk: Do you have a copy of this?

 

Samson: It would not only be a copy but also in the Hansard of the Assembly.

 

Judge: Marked as P17.

 

Datuk: Can I refer you to PBD at page 12 to 16 of PBD3? Is it a public document?

 

Samson: This is also the written reply from Dewan Undangan Negeri on 15 August 2006.

 

Datuk: Can I tender this?

Judge: P18.

 

Datuk: May I refer you to pages 68 to 73 of PBD2. Can you tell the court the nature of this document?

 

Samson: Yang Arif, this was my speech at Dewan Undangan Negeri on 18 April 2007. This is the

               extract of my speech in the Hansard.

 

Judge: This would be P19.

 

Datuk: There is a reply from the Minister of Local Government and Housing at Page 71 to 72 of PBD2?

 

Judge: P20.

 

Datuk: Please look at Page 18 of PBD3. And please look at page 17. Can you confirm the document?

 

Samson: Yes to Page 18 and Page 17.

 

Judge: Page 18 marked as P21. Page 17 marked as P22.

 

Datuk: Please look at Page 19 of the same bundle. Please explain the nature of this document.

 

Samson: Yang Arif, this is the written answer to my question number 98 during the seating of the

               Assembly on the 24th September 2007.

 

Datuk: Can I have it marked as exhibit P23?

 

Judge: This would be P23.

 

Datuk: Can you please look at paragraph 9(d) of your statement – and way you make reference to page

            73? So can you please look at Page 73 of PBD? Is that a reply from the State Government?

 

Samson: This was the reply from the Chief Minister’s Department to my speech.

 

Datuk: May I have this tendered as P24?

 

Judge: P24.

 

Datuk: That is all. Much obliged.

 

Ronny: May I resume?

 

Cross Examination

 

Ronny: Mr. Chin, do you know what is the cause of action of the plaintiff’s in this joint trial?

 

Samson: As I understand, the cause of action for the plaintiff’s in this case is to enable the court to

               decide once and for all, the area on which is developed by the 1st Defendant is open space or

               not. If it is, it should not be continued.

 

Ronny: Have you ever read the copy of the statement of claim by the Plaintiffs?

Samson: No.

 

Ronny: So was your answer was based on information gathered?

 

Samson: Yes, information gathered by myself.

 

Ronny: You seem to be person who is very good in gathering information.

 

Samson: Thank you very much.

 

Ronny: Are you aware of the fact that both the development plans in respect of the 2 suit and both the

             joint venture agreement have been withdrawn and mutually terminated?

 

Samson: Yes, through the media.

 

Ronny: If you know that the subject matter of the 2 suit are no longer in existence, what is the purpose

             of your testimony in court.

 

Samson: I could put the same question back to you as to why you are in court today.

 

Ronny: So you don’t know why you are here today?

Samson: No, I know why I am here. I have been summoned to testify in court concerning a case

               involving open space.

 

Ronny: Given the fact that you know the subject matter of the 2 suit no longer exists, what do you think

              is the legal issues involved in this legal trial today?

 

Judge: Is the witness suppose to answer this?

 

Ronny: The witness presented himself in the witness statement as a senior partner in Hiew & Chin,

             familiar with Sabah Land Ordinance – as a professional lawyer in this case. Surely he can

             answer the cause of action in this case.

 

Datuk: Yang Arif, this witness have not said anything about legal issues in his witness statement. He has

            expressly mentioned during examination in chief that he did not want to be an expert witness. So,

            I think question to legal issue is outside the question.

 

Ronny: May I reply? The trial involves legal issues. If there are no legal issues, there is no trial.

            Relevant to the issue.

            Oral testimony of witnesses are direct evidence to the issues. I should be allowed to ask any

            question in cross examination in respect of all legal issues in this case.

 

Datuk: There is no legal reply for witnesses to know and understand legal issues, before they can testify

            in court. And this witness will only give evidence of fact. He is not here to give evidence relating

            to knowledge of legal issues in this case. The legal issues is better for counsels to address the

            court. Certainly not the witness. Much obliged.

 

Ronny: What is your ladies decision on this matter?

 

Judge: I sustain the objection.

 

Ronny: Mr. Chin, do you know that the land which you referred to in your witness statement do not

             belong to the 2nd Defendant, Majlis Perbandaran Tawau?

 

Samson: That’s correct.

 

Ronny: Do you know who are the registered owners of the land?

 

Samson: It is an open space, state reserve. No title. Yang Arif, in the first place it is NOT registered.

               Therefore, this is no title. I believe the land belongs to the state government.

 

Judge: So the owner is the state government?

 

Samson: That’s correct.

 

Ronny: How many pieces of land is stated in your witness statement?

 

Samson: I refer to Block A, B, C, D, and E. 5 blocks.

 

Ronny: On how many pieces of land is the 5 block were situated on?

 

Samson: May I refer to my statement please. Clause 4.

 

Ronny: I don’t think the witness is allowed to refer to his witness statement as I’m testing his credibility

            on his witness statement.

 

Datuk: There is no law to stop this witness to refer to his own statement. It doesn’t really matter whether

            the counsel is testing his credibility.

 

Ronny: Basically he is here to tell the court about…. (gives explaination that the witness is going side

             tracked and want to go back on track by referring to his witness statement again )

 

Judge: Objection by Mr. Cham sustained.

 

Ronny: On how many pieces of land is the 5 block were situated on?

 

Samson: If I may remember correctly, Block A and B in one title. Block C and D without title. Lot E

               within 1 title.

 

Ronny: Now I would like to refer the witness to his witness statement paragraph 4. In particular,

             paragraph 4(c), “Block C and D is situated on open space….. and not state land”. Can you

             please explain to the court what do you mean by state reserve?

 

Samson: Yang Arif, State reserve means land which is reserved for a purpose.

 

Ronny: What is the provision and procedure in the Sabah Land Ordinance governing reserving of

             Land in Sabah Land Purpose?

 

Datuk: This is a legal question and the witness has said he is not an expert witness on law.

 

Ronny: What is the difference that you referred State Reserve but not State Land?

 

Samson: State Land is land alienable. State Reserve is not alienable.

 

Ronny: If I could refer the witness to Paragraph 1 of his witness statement – “I am familiar with Sabah

             Land Ordinance Cap 68”. Are you prepared to answer questions on this Ordinance?

 

Samson: I will try.

 

Ronny: Is there a provision in the SLO defining the State Reserve?

 

Samson: Yang Arif, you may refer to Section 28.

 

Ronny: Before I go to section 28, is there a definition section on state reserve?

 

Samson: No.

 

Ronny: Are you saying that there is no definition of State Reserve in the definition section of the

             Ordinance?

 

Samson: No, there is no definition in the Land Ordinance (Section 4)

 

Ronny: You mentioned Section 28 of the Ordinance. Was there a definition on what is State Reserve?

 

Samson: No, Yang Arif.

 

Ronny: Is there a definition of State Land in the definition section of the Land Ordinance?

 

Samson: Yes.

 

Ronny: If you look at Paragraph 4(c), would you agree with me that the definition of State reserve in

             your witness statement is your own creation and that it is not in the Land Ordinance?

 

Samson: The word “state reserve” is found in Section 28. It is not my creation.

 

Ronny: I would like to show the witness the section. And where in section 28 uses the word “State

            Reserve”?

 

Samson: I personally take it that there is no word as STATE RESERVE in section 28 but my reading on

              the word “reserved” was mentioned there – to my understanding it is state reserve.

 

Ronny: When you use capital letter S and R for State Reserve was your own creation?

 

Samson: Yang Arif, the word “state reserve” was found in the Survey Plan No. 10124910 approved in

               1975 in my witness statement paragraph 3(d). There was the word Open Space (State Reserve).

                Do you want me to show you that word, Yang Arif? (To be precise 2 July 1975 as shown in

                the plan.)

 

Ronny: So you are saying the term used State Reserve was used by someone who prepared the said plan.

 

Samson: It is based on an approved survey plan as I earlier quoted.

 

Ronny: The approved survey plan was a plan joined up by the Land and Survey Department am I right?

 

Samson: Yes.

 

Ronny: Would you agree that the Land and Survey Department represents the government?

 

Samson: Yes, Yang Arif.

 

Ronny: Do you know what was the purpose of that survey plan?

 

Samson: The purpose was for a sub-division of a title PL 106290831.

 

Ronny: I would like to refer the witness to pages 2, 3, 4 and 5 of PBD3.

 

Samson: Yes.

 

Ronny: If you can look at the diagram on Page 3, can you confirm through your experience, whether the

            so-called Open Space State Reserve you referred to your paragraph 4(c) of your statement, is

            within the boundary of PL 106290831?

 

Samson: If one were to look at this plan as shown in the title, I do not and cannot confirm whether the

              so-called Open Space (State Reserve) is within this title or not. But to be fair to the court and to

              me, the plan which I have just quoted, will give the court a better idea whether the Open Space

              (State Reserve) is within that title itself. If you allow me to show the court, the said land is NOT

              within the said title.

 

Ronny: So you confirm it is not within the state title shown on that piece of title?

 

Samson: No, it is not.

 

Ronny: Would you think the people of Land and Survey Department people would be a better person to

             ask whether the Open Space (State Reserve) was or was not within the boundary of this land?

 

Samson: It will be most appropriate for the people of the Land and Survey Department to do so. Yang

               Arif, I have obtained the survey plan earlier, which was approved and confirmed earlier. It is a

               public document to be taken as it is, the open space is OUTSIDE the PL 106290831 land.

 

Ronny: If I were to refer the witness to paragraph 4(d) of his witness statement. The 2nd last sentence

             beginning with the word “The said land remains unalienated and it is never vested to the 2nd

             Defendant”. Do you stand by that statement?

 

Samson: As of today, yes, I would stand by this statement.

 

Ronny:  If I may refer the witness to Page 3, 4 and 5 of the PBD Encls. 128. If you look at page 3, at the

             bottom endorsement, there is a gazette number 78/68, would you agree that is a gazette gazetting

             that piece of land under section 28.

 

Samson: If I were to refer to Page 3, Gazette number 78/68, if one were to look at the special term, it is

               stated for “Open Space”, not what the learned counsel has stated.

 

Ronny: Going back to… Do you know how a government reserve a piece of land such as public place?

 

Samson: I must admit I am not familiar with that.

 

Ronny: Do you know that when a land is reserved for public purpose, there must be a gazette

             notification published in the government gazette to notify the members of the public?

 

Samson: Yes I agree.

 

Ronny: I refer you back to paragraph 4(c). When you said that Block C and D is state reserve, do you

            know whether there was any government publication in the government gazette designating that

            piece of land which you referred to as state reserve for open space purpose?

 

Samson: No.

 

Ronny: So do you agree with me, that piece of land which you said was not vested in the 2nd Defendant

             and remain unalienated is still legally a piece of state land within the definition of the Sabah

             Land Ordinance. Would you agree with me?

 

Samson: Yes.

 

Ronny: If you will please look at paragraph 3(g) and (h) of your witness statement, there would be 2

            joint venture agreement signed between the Municipal Council and the 1st Defendants in this

            case. Throughout all the evidence you have provided in this court, you have never alleged that

            those 2 joint venture agreement were illegal, am I right?

 

Samson: You’re quite right.

 

Ronny: In all the Assembly Q&A, no one has actually question the legally of these 2 agreement as well.

             Am I right?

 

Samson: Correct.

 

Ronny: Do you know who is the minister in charge to approve this 2 joint venture agreement?

 

Samson: My understanding (I have no proof) not as of fact. I don’t know.

 

Ronny: Do you know that it was the Tawau Municipal Council that approved the development plans of

             Block A, B, C, D and E?

 

Samson: From the information I gathered, it was approved by the Municipal Council of Tawau.

 

Ronny:  If I may refer the witness to paragraph 5, 7 and 10 of your witness statement. In paragraph 5, at

             the last sentence, you used the sentence, “to halt the said project.” And in paragraph 7, the last

             few words said “to put a stop to this unwarranted defiance”. And in the 3th line of paragraph 10,

             “the inability of the government to stop the projects”. Now, Mr. Chin, I would like to ask a

             question as a lawyer, when there was 2 valid joint venture agreements signed between the TMC

             and the 1st Defendants, can anybody, including the government simply put an end to that

             contract?

 

Samson: No.

 

Ronny: I have no further questions.

 

Datuk: Can I re-examine him tomorrow?

 

Samson: If I may, continue tomorrow morning?

 

Judge: Tomorrow would be from 9.30am to 1.00pm. Monday next week at 2.30pm.

 

Witness is dismissed till tomorrow morning.

 

 

 

 

 

 

 

 

 

 

 

 

 

Sabindo Open Space Trial – Day 1 June 20, 2009

Posted by wong jimmy in Open Space.
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DAY 1                               NOTES OF PROCEEDINGS                 10 JUNE 2009

 

CHONG SUI JIN & 9 ORS

v

AGGASF SDN. BHD.

& JERAMAS SDN. BHD.

 

Civil Suit No. T(21) 52 2005

Civil Suit No. T(21) 53 2005

 

Datuk:  Yang Arif, I appear for the Plaintiffs for this case. Together with me is my   

learned friend, Mr. Wilson Lim. Mr. Brendon Soh is for the 1st Defendant.

Today is the consolidated trial for suit number 52 and 53 of 2005.

Opening of the case – Public Interest Litigation.

 

Judge: Agreed documents?

 

Brendon: Agree to authenticity but not content – common documents which exist in both parties bundles.

 

Judge: Should have done before the trial but if you wish, proceed to your own choice

 

Datuk: Much obliged. Public Int. Litigation – “justice and uphold for people’s of Tawau” – hottest piece of land in Bandar Sabindo.

– The JVA have been terminated and withdrawn – so far as the P’s is concerned, buildings are illegal – structures illegally put up by Defendants.

– Without lawful authority attended the space and develop those spaces.

– Character and ambience – radically changed.

– 5 sites have been identified for JVA.

– 2 sites are currently being developed – Block D & E – TL107523008.

The people of Tawau have a strong public objection on the motion of the open space.

The objections have been currently been ongoing for some time since 1992 – even before JVA have been agreed upon. The 1st D blatantly disregard the objection to stop the work

The developers forcefully prepared to eject anyone who goes into the construction.

They did not bring this matter to court as the P’s are fully aware that they need court order. As a last resort, they command legal proceedings against this court in 2005.

P’s claiming declaration in 2005 – invalid, illegal and unenforceable.

– Development Plans invalid, illegal and unenforceable.

– Set aside development plans.

Plaintiffs are asking for mandatory and prohibitory injunction so that 1st D’s stop work and clear all constructions sites.

P’s sue as inhabitants and taxpayers. 1st D challenged the P’s locus standi to the CA. But the appeal was dismissed. Numerous claims used to strike out S/C and set aside consent judgment – but have failed. Therefore, taken 3 years for plaintiff’s to pump up this trial.

19 Dec 2007 – and on day of trial, 2nd D conceded to consent judgment – not to attest the injunction and anything that has got to do with this trial.

My Ladyship is reminded the fact that, since an interlocutory injunction have already been issued upon 1st D – mandatory and prohibitory should be followed.

 

Material facts of case stated.

 

Evidence to be adduced:

5 categories of evidence –

a) Document from public record upon payment of prescribed fees

b)

c) Within power and possession of parties n witnesses

d) Oral evidence from witnesses & subpoena

e) Expert evidence in which notice has been given to defendant

 

Block D sits on State Reserve. Prior to development Plan in 1973 – was used as “esplanade” then changed to state reserve and later on changed to state reserve (open space). The 1st D went into possession on site without lawful authority – no permission to enter was ever granted.We did issue evidence to stop 1st D from work but did not have any effect. The 1st D has mislead the 2nd D in that the land was ready to be developed.

– Willfully make number of representation to 2nd D which turned out to be false.

– 2nd D had approved development Plans.

“Money cannot buy open space.”

 

Brendon: Objects to the notion “money cannot buy open space”

 

Datuk: Evidence shows that developed structures can be easily demolished.

 

Judge: Do not agree to the motion “Money cannot buy open space.” Not suitable to be used as opening of a case.

 

Datuk: The issues that arise are stated in the statement of agreed issued to be tried.

(read out one by one)

 

Judge: Skip chronology of events. Delete “Money cannot buy open space”

 

Datuk: P’s have filed:-

1. Bundle of pleadings (BPA) – Encls. 126

2. P’s BOA

3. P’s Supplement BOA

4. P’s 2nd Supplementary BOA

5. P’s 3rd Supplementary BOA

6. Statement of agreed issues to be tried

7. Statement of agreed facts

8. List of chronology of events
Today we have filed the P’s Amended Statement of Claim.

 

1st D filed Bundle of Documents – 3rd Oct 2008

– Served the Amended Defence today.

– P to Reply by next Monday.

– D’s Supplementary BOD served today.

– Common documents and written to another friend as to the authenticity of those docs.

 

 

 

Brendon: Filed Amended Statement of Defence, Issues and facts today.

– Can only be prepared after it was granted.

– Understand that P’s don’t agree to proposed statement of issues and facts and therefore I

   suggest that it will be taken to be unagreed issues and facts to be decided.

 

Datuk: Opposed issues and facts served yesterday. Suggested to learned friend that we have no objection to this issues and facts to be proposed by the 1st D as the 1st D sees it.

 

Judge: Granted P & 1st D time to agree on statement of unagreed facts and issues.

 

Adjourned at 9.50am

 

Resumed at 10.25am

 

Datuk: The parties have agreed to the authenticity of the number of docs and may I ask for your Ladyship to kindly mark them.

 

  1. P’s B.O.D – Encls. 128 dated 17 December 2007 (PBD) – Encls. 128

– Agreed as to Authenticity of Item 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 29, 30, 31 and 34.

  1. P’s Supplementary B.O.D. dated 18 December 2007 (PBD1)

– Agreed as to Authenticity of Item 1, 2, 3, 4, 5, 6 and 7.

  1. P’s 2nd Supplementary B.O.D dated 17 September 2008 (PBD2) – Encls. 121

– Agreed as to Authenticity of Item 3, 4, 11 and 12

  1. P’s 3rd Supplementary B.O.D dated 4 June 2009 (PBD3) – Encls. 192

– Agreed as to Authenticity of Item 2 and 4

  1. 1st D’s B.O.D dated 30 September 2008 (DBD) – Encls. 129

– Agreed as to Authenticity of Item 2, 4, 5, 6, 7, 9, 10, 11, 12, 19, 20, 21, 22, 23, 24, 25, 26 and 27.

  1. 1st D’s Supplementary B.O.D dated 9 June 2009 (DBD1) – Encls. 193

Agreed as to Authenticity of Item 5, 6, 7, 8, 10, 11, 12, 13 and 14.

 

Brendon: Agreed.

 

Brendon: I wish to highlight some agreed facts by my learned friend. Read briefly and  affirm to this court. Only 2 paragraph’s are not agreed. P’s  statement of agreed facts :-

1. Paragraph 9 which states “Shop houses built….. so far as the 1st D is  concerned – left for the issue to be tried”

2. Paragraph 11 “…the said land have been reserved as Open Space”

 

Datuk: P’s Filed Statement of Agreed Facts as the P’s see them.

 

Datuk: Wish to use affidavit of witness without presence in Court as to Order 41 rule 10 sub-rule 4 Rules of High Court. (Office copy of affidavit.)

 

Invite Yg Arif’s attention to the material wordings to the provision – that the office copy of the affidavit may be used in ANY proceedings. We have attempted to serve the writ of subpoena on Mr. Philip Balasom @ Basalant – affidavit in question. Unfortunately, we have not been able to serve upon him. In order to save the courts time, we apply for the affidavit of Mr. Philip Basalom @Basalant sworn on 11 May 2006 to use in this proceedings.

 

Brendon: We wish to object to this admission of this affidavit – affidavit was filed in a completely separate proceedings, namely Judicial Review T(25) 2 of 2006. Whereby the P’s were not a party to those proceedings. Therefore, the use of such affidavit in these proceedings would be extremely prejudicial unless and until the deponent of the affidavit is here in court and is able to tender the affidavit as evidence. Without his presence, it is tantamount of the statements of the Bar. Furthermore, we are of the humble opinion that O41r10 open floodgates any civil cases to be used as evidence to court. The rules of evidence dictates that the deponent must be a witness present in court.

 

Judge: Any authority from the Plaintiff?

 

Datuk: No decided cases. Only the case in matter of “filing fee”. But the rule is very clear and my learned friend has to explain why the Plaintiff cannot use the affidavit under the set rule. O41r10sb4 states “ANY proceedings”. WEight

 

Brendon: Feel compel to highlight the O41r10 needs to be read in its entirety. If I may invite My Lady to have a brief read of O41r10. (Reads Order)
What is pertinent to note here is that it is not noted that the affidavit can be used in ANY OTHER PROCEEDING. Can only be used in the proceedings in which the affidavit is filed – not a completely separate proceeding. Cannot be accepted by this court as it will open floodgates to every civil case.

 

Judge: Reserve ruling & continue attempt to serve subpoena.

 

Judge:

 

  • Bundle of Pleadings marked as BPA – Encls. 126
  • Plaintiff’s Opening Statement marked as EXHIBIT A.
  • Plaintiff’s Statement of Agreed Facts dated 7 May 2009 marked as EXHIBIT B – Encls. 135
  • Plaintiff’s Statement of Agreed Issues to be Tried marked as EXHIBIT C – Encls. 136

      (Must prepare and put in Supplementary PBP2)

  • Defendant’s Proposed Issues to be Tried marked as EXHIBIT D
  • Defendant’s Proposed Agreed Facts marked as EXHIBIT E
  • List of Chronology of Events dated 10 June 2009 marked as EXHIBIT F

 

11.30am

 

Plaintiff calls 1st Witness – Mr. Adrian Chong Sui Chiam (PW1)

(Sworn – solemnly & sincerely declare the evidence given in this court is the whole truth, the truth and nothing but the truth.)

 

Chief Examination (PW1)

 

Datuk: You have earlier declared a witness statement. Would you like to go through the content of the witness statement so that it is correct before you sign it?

 

Dr Adrian: Yes it is correct. (Signs witness statement)

 

Datuk: May the witness be shown a statement of this please? (Passes a copy to the witness) Can I refer you to Para 4 of your witness statement? And also Page 42 of PBD?

Is that a letter written by you?

 

Dr Adrian: Yes.

 

Datuk: Can you tell the court what is the subject matter of your letter?

 

Dr Adrian: This letter refers to the proposed development of the open space. A letter in response to the letter written to me as a Director at the time with the Town and Regional Planning Dept. with regards to the open space matter.

 

Datuk: May you please look at Pages 41 and 42 of PBD? Is that the letter you’re referring to?

 

Dr. Adrian: Yes.

 

Datuk: Mr. Chong, in your letter, is there any where in your letter that you have approved the open space for commercial use?

 

Dr. Adrian: My letter stated that there is no objection to the development proposal. No objection does not mean approval to the plans. There must be a replacement of the said open space in the town area. That is if the proponent wants to develop the said open space.

 

Datuk: Mr. Chong, do you know if there is a replacement of open space in the town area?

 

Dr. Adrian: Yang Arif, I have no idea if there a replacement. My role is to make a comment for the requirement of the replacement. It must be replaced. Town Planning Dept only makes the technical comments and reply. The replacement of the open space should be made by the Tawau Municipal Council (Local Authority)

 

Datuk: Is it fair to say that you did not know if there is in fact a replacement of open space?

 

Dr. Adrian: I do not know.

 

Datuk: May the witness be shown pages 13 to 16 of PBD2. Can you please look at Page 13, Item no. 4 and 2nd last paragraph at Page 14? Have you read those statements? Do you agree to those statements?

 

Dr. Adrian: According to my letter, NO. Because when I said no objection, it does not mean approval.

 

Datuk: Can you take a look at Pages 15, Item 4 (Letter from Jeramas to TMC) and the last paragraph of Page 16?

 

Dr. Adrian: Answer is the same as to the previous question. According to my letter, NO. Because when I said no objection, it does not mean approval.

 

Brendon: 1st D reserves to cross examination until tomorrow morning for Mr. Cham to arrive.

 

2nd witness: Encik Husin Abdul Rahim (Sworn with statement of truth)

 

Chief Examination

 

Datuk: You have to view the draft witness statement based on the interview with the solicitors for the plaintiff’s and tell the court if you agree to the witness statement.

 

(Stand him down for the moment – take witness statement and goes through slowly and see whether he agrees to the witness statement)

 

Calls 3rd witness Mr. Samson Chin Chee Tsu (Sworn with statement of truth)

 

Chief Examination (PW2)

 

Datuk: Mr. Chin, you have signed a witness statement.

 

Samson: Yes, Yang Arif.

 

Datuk: Mr. Chin, I show to you a copy of the witness statement and can you confirm the contents of the witness statement?

 

Samson: Yes, Yang Arif.

 

Judge: Are you aware that this will be your examination in chief?

 

Samson: Yes Yang Arif, I am fully aware.

 

Datuk: Mr. Chin, in your statement, you said you have carried out investigations and carried out findings on the two joint venture projects. Is it fair for you to conclude that this two joint venture contracts are illegal?

 

Samson: Yang Arif, I do not dare to say if the two projects are illegal. No, I cannot say if those projects are illegal.

 

Datuk: Then what is the conclusion of your investigation to this two joint venture projects?

 

Samson: My humble conclusion is that this area is stated as Open Space (State Reserve) and approved by the Survey Dept. I deem that unless it is proven otherwise, the land would be known as Open Space (State Reserve) as shown in the approved plan. That approved survey plan is no.10124910 in 1975. The exact date of approval of the survey plan is 2 July 1975, also shown in the plan. Yang Arif, may I add, since this survey plan No. 10124910 properly approved by Survey Dept, this document is presumed to be correct since this is a public opinion.

 

Judge: Do we need an opinion from the public?

 

Datuk: Yes, would like to treat this witness as expert witness – him being a prominent lawyer in Tawau.

 

Datuk: Would you say that since it is a state reserve open space, that no developments may be carried out on the said land?

 

Samson: No, you cannot carry out any developments because it is open space.

 

Datuk: Can you look at Para 4(d) of your witness statement? Would you like to standby in that statement?

 

Samson: Yes, Yang Arif.

 

Datuk: Would you say that any development on the aforesaid land is illegal?

Samson: It is my humble opinion that it is illegal.

 

Datuk: Mr. Chin, what would be your advise, as a practicing lawyer of 30 years standing, if your client were to enter into a Joint Venture with the Municipal Council to develop the open space?

 

Samson: May it please your Ladyship, this is a question, I take it as it is. If it is put to my client, … (interrupted by Judge)

 

– Judicial Intervention on witness being expert witness –

 

Datuk: Requests to give a short submission after lunch regarding this matter for the following questions to be answered by the witness.

 

Brendon: Wishes to remind the court that the witness is familiar with the Sabah Land Ordinance – does not hold himself out as an expert in this area of law as he has stated earlier in his testimony.

 

Datuk: I have no further questions.

 

Judge: Mr. Chin, you are required to come back tomorrow to court at 10.00am for cross examination.

 

Samson: Much obliged.

 

Calls 2nd Witness – Mr. Husin back to the stand.

 

Chief Examination – (PW3)

 

Datuk: En. Husin, you have with you a draft copy of the witness statement. Did you have time to go through it? Do you want to confirm the accuracy of the contents before you sign it?

 

Husin: Yes. But wish to amend Item 1 of Page 2 – effect from 1998 and not 2002. Item 3: I wish to delete the 2nd paragraph statement. I cannot confirm without seeing the book. Item 4, 2nd sentence – I signed the said document as acting Secretary not as Deputy Secretary. Item 5 and 6 is to be deleted. That’s all.

 

Datuk: Amended witness statement of Husin marked as PW3.

 

Datuk: May the witness be shown PBD1, Item 8 to 14 (Pages 30-36) please? Have you got that Mr. Husin?

 

Husin: *nodds*

 

Datuk: Can you tell the court about this documents?

 

Husin: It is a photocopy of the official receipt of house assessments.

 

Datuk: Are these payment of assessments within the Tawau Municipality?

 

Husin: Yes.

 

Datuk: Are the payees of all these assessments ratepayers of Tawau Municipality?

 

Husin: Yes.

 

Datuk: May the witness be shown the PBD, Item 8 and 9 of pages 12 to 38? Do you agree these are the Joint Venture Agreements between the 1st Defendant and the Tawau Municipal Council?

 

Husin: Yes.

 

Datuk: May I now move your attention to PBD Page 23? Can you see your signature on the bottom of the page and the official stamp? Can you read out to the court on what the official stamp says?

 

Husin: Timbalan Setiausaha or in English, Deputy Secretary.

 

Datuk: En. Husin, were you present at the Tawau Landing Meeting in May 2005?

 

Husin: No.

 

Datuk: No further questions.

 

Witness to be re-called tomorrow at 10.30am.

 

Adjourned till 2.00pm

 

 

 

 

 

 

 

 

 

 

 

Resumed at 2.10pm

 

Datuk: Yang Arif, may I call upon Mr. Tai Yun Wu to the stand?

 

5th Witness Mr. Tai Yun Wu called – Sworn statement of truth.

 

Chief Examination (PW4)

 

Datuk: Could the witness be shown the copy of the witness statement? Have you signed the copy of the witness statement? Can you confirm that the statement in this proceedings is correct?

 

Tai: Yes.

 

Datuk: Could the witness be shown PBD1, Pages 30-36? Can you tell the court what are these documents?

 

Tai: It is the copy of assessment date to TMC for the year 2006/07.

 

Datuk: Do you confirm that the payers of this assessment the tax payers of the TMC?

 

Tai: Yes

 

Datuk: Do you have access to those records?

 

Tai: Yes

 

Datuk: With your Ladyship’s permission, I wish to tender these documents as exhibits.

 

Judge: Mr. Soh, any objection?

 

Brendon: No, My Lady.

 

Judge: Items 8 to 14 of PBD 1, right? It will be marked as P1-P7.

 

Datuk: Yes, much obliged.

 

Datuk: Mr. Tai, may I invite you to paragraph 6 of your witness statement – where you make reference to the development plans of No. 18 of 73? Whether you have access to that development plan?

 

Tai: Yes.

 

Datuk: May the witness please be shown Page 2 of PBD? Can you please tell the

 

Tai: Approved development layout plan issued by the Tawau Townhold.

 

Datuk: Do you know when it was issued?

 

Tai: It is shown on the plan – 16 March 1973.

 

Datuk: Can you see the top centre of the development plan? Can you identity that piece of land?

 

Tai: It is stated as Open Space, Yang Arif.

 

Datuk: Are you able to confirm that the open space is incorporated to the plan as part of the Development plan?

 

Tai: It is stated as per the layout of development plan.

 

Datuk: So the answer is yes. With your Lady’s permission, I would like to

 

Brendon: It is mandatory to have the original copy. The witness has only joined the 2nd Defendant in 1979 and the plan was made in 1973. Therefore it is for this purpose, we object the plan to be made as an exhibit.

 

Datuk: Yang Arif, I think the objection is unreasonable. This plan has already established that these documents belong to the Municipal Council of Tawau. He is the chief engineer. And he deals with all development projects in Tawau and he has unrestricted access to these documents, which is in the custody, power and possession of the Municipal Council of Tawau in which he is the chief engineer. Therefore, he has the right to tender these documents. These official documents in a sense that any members of the public may make a search, pay a fee, can obtain the document. There is no reason why this witness cannot tender this document.

 

Judge: Are you still the Chief Engineer?

 

Tai: Yes.

 

Judge: This document is in your custody, power and possession as the Chief Engineer?

 

Tai: Yes.

 

Judge: Objection overruled.

 

Datuk: May I tender this document as an exhibit?

 

Judge: This will be marked as EXHIBIT P8.

 

Datuk: Much obliged.

 

Datuk: Mr. Tai, can you look at paragraph 7 of your witness statement? Can you tell the court if there are any objections to this projects?

Tai: Yes, I received a general objection by the public and newspapers that I have read.

 

Datuk: No further questions.

 

Witness is released subject to recalled at 10.30am.

 

Datuk: Yang Arif, I have one last witness.

 

Datuk: May I call Datuk Yap Yew Sin?

 

6th Witness Datuk Yap called. Sworn statement of truth.

 

Chief Examination (PW5)

 

Datuk: Datuk Yap, are you the President of the Chinese Chambers of Commerce Tawau?

 

Yap: Yes.

 

Datuk: Since when did you become President of CCC?

 

Yap: End of 2003.

 

Datuk: Before you were President of CCC, did you hold any pose in the organization?

 

Yap: Yes, I was a Deputy President and a Secretary General.

 

Datuk: Will you say that all your members are business people in Tawau?

 

Yap: Yes – otherwise they’re not qualified to be a member.

 

Datuk: Is that a requirement?

 

Yap: Yes.

 

Datuk: Are you aware of the two joint venture projects in Bandar Sabindo?

 

Yap: Yes.

 

Datuk: Can you please tell the court how you came to know about these two projects?

 

Yap: CCC have received complaints from our members of the Sabindo area. – as the projects were going to be there.

 

Datuk: What was the nature of the complaints?

 

Yap: They were very worried that this type of commercial building will affect their business because the building will cause traffic jam, and no parking space – the customers will not come to the area anymore.

 

Datuk: May the witness be shown PBD3, Pages 6, 7 and 8? So when you received complaints from your members, what did you do?

 

Yap: We had a meeting among our committee members to see what we can do about it, so we decided to write to our Yang Berhormat Chief Minister with a c.c copy to all our Y.B’s in Tawau area.

 

Datuk: Did you also discuss this matter with other associations in Tawau?

Yap: Yes.

 

Datuk: Please tell the court what associations are those?

 

Yap: Bumi Chambers of Commerce, Tawau branch and Indian Chambers of Commerce and Persatuan Pemberita Tawau.

 

Datuk: What happened after the discussion/meeting with these associations?

 

Yap: Because this type of development will affect the whole Tawau community. It is a very serious matter. That is why we propose to write to the Chief Minister.

 

Datuk: Please look at Page 7 of PBD3. Against the Official Stamp of CCC, there is a signature. There is a signature. Is that your signature?

Yap: Yes.

 

Datuk: May I have this document be tendered?

 

Judge: Any objections, Mr. Soh?

 

Brendon: No objection.

 

Judge: This will be P9.

 

Datuk: Please look at Page 6 – the grounds of objection. Are they based on the feedback from the public members?

 

Yap: Yes.

 

Datuk: Do you know whether the project will stop as a result of your letter?

 

Yap: No.

 

Datuk: May the witness be referred to PBD2 page 19. Can you please confirm that was the letter written by you and three other associations?

Yap: Yes.

 

Datuk: Can you please explain why you wrote that letter again?

 

Yap: Because the joint venture projects did not stop.

 

Datuk: May I have this tendered as an exhibit please?

 

Judge: No objections I believe?

 

Brendon: No objection.

 

Judge: P10.

 

Datuk: May I now draw your attention to pages …

 

Judge: Can we stop for a while?

 

Datuk: Yes, sorry I did not notice the time.

 

Judge: Sorry for the inconvenience caused. We come back at 3.30pm.

 

Resumed at 3.20pm.

 

Datuk: Datuk Yap, did the developers stop as a result of your letter?

 

Yap: No.

 

Datuk: Can you please look at pages 62 to 67 of PBD2?

 

Yap: Was this joint letter written by you and 3 others?

 

Datuk: Please look at pages 64 to 67? Were these photographs attached to the letter sent?

 

Yap: Yes.

 

Datuk: May I have the letter tendered as Exhibit P11?

 

Judge: P11.

 

Datuk: May the photographs be tendered as exhibits as well?

 

Judge: Any objections to those tendering?

 

Brendon: No.

 

Judge: Photographs at Pages 64 to 67 marked as P12 (a) to (h) respectively.

 

Datuk: Much obliged.

 

Datuk: Datuk Yap, can you please tell the court why you and the 3 other associations wrote to the Chief Minister?

 

Yap: We have written 2 letters but they have no stopped therefore we need to show the Chief Minister that the situation is getting from bad to worse. We need him to come in to stop the construction.

 

Datuk: Why did you say that things were going from bad to worse?

 

Yap: Oh, they were already starting to build the building. From the photos, you can see that they have started. Last time they were only talking about it, but later on they were actually building it.

 

Datuk: Please look at Paragraph 1 of P11. Starting with “In addition to construction…” At the time of your writing this letter, what happened to the project?

 

Yap: They still building the construction – and moved from number 1 to 2. That’s why I said it was getting worse.

 

Datuk: Datuk Yap, please look at the photographs on Pages 64 and 65, Open Space no.1. Can you tell the court where is the location of this project?

 

Yap: This open space is it right in front of the Teo Chew Association Building.

 

Datuk: Were these photographs taken around the time of your letter of P11?

 

Yap: Yes.

 

Datuk: Please now look at Pages 66 and 67 of the same bundle in respect of Open Space no.2. Please tell the court the location of the open space project no. 2?

 

Yap: This is next to Tai Yuen Supermarket.

 

Datuk: Were these photographs taken around the time of your letter of P11?

 

Yap: Yes.

 

Datuk: Please now look at P11, the last sentence of the last paragraph at Page 62 – starting with “He would appreciate…”

 

Yap: Yes.

 

Datuk: Did the Chief Minister visit Tawau as a result of your letter?

 

Yap: Yes.

 

Datuk: May the witness be shown Page 71 of PBD? Were you present with this meeting with the Chief Minister?

 

Yap: Yes.

 

Datuk: Will you be able to confirm what was reported in this newspaper were in fact said by the Chief Minister?

 

Yap: Yes. During the meeting, we have discussed so many things but the Open Space was one of it – He made an announcement that nobody can touch on the open space. That was a warning.

 

Datuk: Can I invite your attention to the quotation on the 3rd Column starting with “Do not change the initial and original plan of the property… if it is an open space, it stays as an open space”. Can you confirm that was what the Chief Minister said at the time?

 

Yap: Yes, confirm.

 

Datuk: Can you also confirm that the Chief Minister warned that stern actions will be taken against those who develop the open space for commercial buildings?

 

Yap: Yes.

 

Datuk: Did he also say that he has instructed all the local authorities to scrutinize any plans to develop open space in their area?

 

Yap: Yes.

 

Datuk: Can you also confirm that the Chief Minister said that any land that has been

 

Brendon: I think the questions are leading. Clearly against the purpose of examination in chief.

 

Datuk: Nothing wrong with asking general questions – that would have very little evidential value. My question is for specific questions said by the Chief Minister during the meeting in which this particular witness was present. And he is of course entitled to confirm or otherwise what was stated in the newspaper report.

 

Brendon: My Lady, this is quite elementary. The information can be easily be phrased. And the court can record it down. That is cross examination My Lady.

 

Judge: Show the newspaper statement…. Point out those which he remembers.

 

Datuk: Can you please now look to the 3rd paragraph, “Musa also said that any land which is classified as open space…” Would you be able to confirm that was what the Chief Minister said?

 

Yap: Yes, that was what he said.

 

Datuk: Will you also be able to confirm the accuracy of this newspaper report as a whole?

 

Yap: Yes, I confirm.

 

Datuk: Can you tell the court what happened to the projects after the Chief Minister visited?

 

Yap: I think the projects stopped. I can’t exactly remember.

 

Datuk: Do you know if there was any court order to stop the project?

 

Yap: Yes.

 

Datuk: May I now invite your attention to Pages 1 to 12 of PBD2? Are you aware of the letter 29 May 1992 – pages 1 and 2?

 

Yap: Yes, I am.

 

Datuk: Do you have personal knowledge of this letter?

 

Yap: Yes.

 

Datuk: What was your position in the Chambers Chinese of Commerce at the time?

 

Yap: I was a Deputy President.

 

Datuk: Did the then President discuss the matter with you before?

 

Yap: We had a discussion among all the committee members of Chinese Chambers of Commerce.

 

Datuk: Was this letter now in the record of the Chinese Chambers of Commerce, Tawau?

 

Yap: Yes, we normally keep a record of whatever letters we have sent.

 

Datuk: Do you have unrestricted custody, control and possession of this document?

 

Yap: No, not me. The Secretary General of the committee – Only the office bearer.

Datuk: So if you want to have access of this document, you have no problem?

 

Yap: Yes, can just call up the office.

 

Datuk: Yang Arif, I leave it to your discretion to leave this document to be tendered.

 

Brendon: We require the maker to be present. We want to have the opportunity to cross-examine whoever wrote this letter. Until then, we will have to oppose.

 

Datuk: Marked as?

 

Judge: All right. Letter at Pages 1 to 12 are marked as ID13.

 

Datuk: I refer to the same bundle, Pages 4 to 11. Can you tell the court what is the nature of these documents?

 

Yap: They are shop owners who wrote to the Chinese Chambers of Commerce. They are against the idea of the commercial buildings being built down in the open space. All in, more than 100 people sent in their petitions to us.

 

Datuk: Do you have a copy of these documents?

 

Yap: I think so, in the Chamber’s office.

 

Datuk: Can I tender the documents as an exhibit?

 

Judge: Any objection?

 

Brendon: Can I have the sight of the original?

 

Judge: Tender it as petition?

 

Datuk: Do you want it to tender it as petition or Letter of Objection?

 

Yap: Letter of Appeal as they appealed to us.

 

Judge: Letter of Appeal at pages 4 to 11 of PBD2. You did not touch on Page 3 right?

 

Datuk: I did not touch on Page 3 because I will call the maker of the letter. Do you have the original?

 

Yap: I will have to check with the office.

 

Datuk: No further questions.

 

Witness is released subject to recall at 11.00am tomorrow.

 

Judge: Any more witnesses?

 

Datuk: If you permit, may I examine the witnesses tomorrow?

 

Judge: How many more?

 

Datuk: Around 4 to 5 only – short witnesses. Looks like we are ahead of schedule.

 

Judge: Adjourned to tomorrow at 9.00am.