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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– The JVA have been terminated and withdrawn – so far as the P’s is concerned, buildings are illegal – structures illegally put up by Defendants.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.

 

 

 

 

 

 

 

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