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Sabindo Open Space Trial- Day 2 June 20, 2009

Posted by wong jimmy in Open Space.

DAY 2                                  NOTES OF PROCEEDINGS                     11 JUNE 2009

9.15 am








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


            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.



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



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



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



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



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


                    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



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



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.




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



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



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



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



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



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.
















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