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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

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