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Sabindo Open Space Trial – Day 8 June 26, 2009

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

9.15 am

CHONG SUI JIN & 9 ORS

v

AGGASF SDN. BHD.

& JERAMAS SDN. BHD

v

MAJLIS PERBANDARAN TAWAU

 

Civil Suit No. T(21) 52 2005

Civil Suit No. T(21) 53 2005

 

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

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

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

 

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

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

 

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

 

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

 

Datuk: Much obliged.

 

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

 

Cross Examination

 

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

 

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

 

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

 

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

           it. 

 

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

 

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

 

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

           to answer the question?  

 

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

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

            learned friend would like to explain.

Judeg: Maybe you can just rephrase the question.

 

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

 

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

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

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

          government.

 

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

 

Kong: Yes My Lady.

 

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

 

Kong: Yes, My Lady.

 

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

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

 

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

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

           land for commercial development.

 

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

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

 

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

 

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

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

 

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

            land…to the council.”

 

Datuk: So what is the said land here then?

 

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

 

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

           that correct?

 

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

 

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

           would also do so?

 

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

           money, I would do so.

 

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

           also do so?

 

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

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

 

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

 

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

 

Judge repeats the questions and answers asked earlier. 

 

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

 

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

          of Sabah, and Block C belongs to the Council.

 

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

 

Kong: Yes.

 

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

 

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

 

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

 

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

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

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

 

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

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

 

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

 

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

 

Kong: Yes.

 

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

           Council’s entitlement out of it?

 

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

 

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

 

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

 

Datuk: What about Block D?

 

Kong: I’ve given my answer.

 

Datuk: What is your answer please?

 

Kong: Block D belongs to Jeramas.

 

Datuk: Exclusively, correct?

 

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

 

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

            units from Block A. Can you confirm that?

 

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

 

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

 

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

           The Council’s entitlement is in Blcok B. 

 

Judge: So how does that answer the question?

 

Kong: The answer is in Block B.

 

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

 

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

 

Datuk: So the answer is yes.

 

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

            yes.

 

Judge: Unless he wants to press.

 

Ronny: Yes.

 

Datuk: Yes.

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

 

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

 

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

 

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

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

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

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

             is clearly stated in the agreement. Much obliged.     

 

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

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

 

Judge: Objection overulled.

 

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

 

Kong: My Lady, my answer is the same.

 

Datuk: YA, I cannot understand the answer.

 

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

 

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

            in Block B?

 

Kong: Yes My Lady.

 

Datuk: Much obliged.

 

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

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

 

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

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

 

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

           you not bound by Clause 3 of this agreement?

 

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

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

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

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

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

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

 

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

 

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

 

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

 

Kong: I don’t know.

 

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

           you entered the site.

 

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

 

Judge: As a developer?

 

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

 

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

            remember that?

 

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

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

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

 

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

           complied with. Can you remember that?

 

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

 

Judge: Do you need to refer to the affidavit?

 

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

 

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

            with?

 

Kong: —-

 

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

 

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

 

Judge: Do you remember your lawyer writing this letter?

 

Kong: Yes.

 

Judge: Ok, that’s the question.

 

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

 

Kong: I don’t know.

 

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

 

Kong: Yes.

 

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

 

Judge: I believe there is no objection? 

 

Ronny: No objection.

 

Judge: This letter will be P33.

 

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

 

Judge: P34.

 

Datuk: Much obliged.

 

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

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

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

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

 

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

 

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

            with, am I right?

 

Kong: I don’t know.

 

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

            witness the particular witness the paragraph which he swore to.

 

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

           the land owner – that is the MPT.

 

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

            the condition precedent have not been complied with?

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

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

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

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

 

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

 

Kong: My Lady, I don’t want to know.

 

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

 

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

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

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

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

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

 

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

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

            buildings have been removed correct?  

 

Kong: I do not agree.

 

Datuk: Why?

 

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

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

 

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

            been converted and alienated or not.

 

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

            them what to do.          

 

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

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

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

            the land has been removed or not.

 

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

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

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

           as a JV partner.

 

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

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

 

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

 

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

 

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

 

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

 

Kong: The developer.

 

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

 

Kong: Developer.

 

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

           development plans sent by you?

 

Kong: Yes, My Lady.

 

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

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

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

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

 

Kong: Yes.

 

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

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

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

            use IS A LIE!

 

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

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

 

Datuk: I think I’m perfectly entitled.

 

Judge: Did he say that?

 

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

 

Judge: Q repeat.

 

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

 

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

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

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

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

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

 

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

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

 

Judge: Let’s leave it for submission.

 

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

 

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

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

 

Kong: What the witness told me…

 

Datuk: Please, do you know or not.

 

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

 

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

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

           that you have made a false statement…

 

Judge: I think it has been deleted?

 

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

 

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

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

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

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

            got to say to that? 

 

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

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

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

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

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

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

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

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

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

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

           should know how to read and understand my letter.  

 

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

 

Judge: It has already been.

 

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

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

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

            to the Witness Statement…

 

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

 

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

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

 

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

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

 

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

 

Adjourned to 2.00pm.

 

Resumed at 2.35pm

 

Witness is reminded that he is still under oath.

 

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

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

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

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

 

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

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

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

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

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

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

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

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

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

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

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

 

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

 

Kong: No.

 

Datuk: Please tell the court what were you appealing?

 

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

           downturn.

 

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

 

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

           following grounds”.

 

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

            strong objections against your project?

 

Kong: Repeat the Q please.

 

Judge: Q repeat.

 

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

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

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

 

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

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

            local residents in Tawau were against this project?

 

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

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

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

 

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

 

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

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

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

 

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

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

 

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

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

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

 

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

 

Judge: Do you need this witness to…

 

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

            have you got to say to that?

 

 

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

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

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

 

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

 

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

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

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

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

 

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

            precedent in the JVA?

 

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

 

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

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

 

Kong: Again, this is not my duty.

 

Judge: Do you know or not?

 

Kong: I don’t know.

 

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

 

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

 

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

 

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

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

          Court Tawau because that is unlawful stop work order.

 

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

 

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

           the stop work order.

 

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

 

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

 

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

 

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

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

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

 

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

 

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

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

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

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

 

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

 

Kong: My Lady, I don’t know.

 

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

 

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

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

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

 

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

 

Kong: I don’t understand the question.

 

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

 

Kong: I still don’t understand My Lady.

 

Judge: What don’t you understand?

 

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

 

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

 

Kong: The whole question, My Lady.  

 

Judge: Rephrase the question.

 

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

 

Kong: My Lady, 1st Defendant.

 

Datuk: Who is 1st Defendant?

 

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

 

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

 

Kong: My Lady, Jeramas Sdn. Bhd.

 

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

 

Kong: Yes.

 

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

 

Kong: I don’t know. I forgot already.

 

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

 

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

 

Judge: You just answer the question.

 

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

 

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

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

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

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

 

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

 

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

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

           frustrated tone*

 

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

            and conversion of the land.

 

Kong: I don’t know.

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

 

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

 

Judge: Just do as requested.

 

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

 

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

 

Kong: Yes, the Council has to apply.

 

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

 

Kong: Unless I was requested by the land owner.

 

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

 

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

 

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

 

Kong: In this case, I do not agree.

 

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

 

Kong: I have no idea about the Land Ordinance.

 

——

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

Kong: Repeat the Q.

 

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

 

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

 

Judge: Can we have a short break?

 

Ended 3.50pm and adjourned to 4.15pm

 

Resumed at 4.25pm

 

Judge: Are we able to finish today?

 

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

 

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

 

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

 

—–

 

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

 

Kong: Yes, My Lady.

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

Judge: We leave the rest to submission.

 

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

 

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

 

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

 

Kong: The AG informed us.

 

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

 

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

 

Kong: My Lady, I don’t know.

 

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

 

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

 

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

 

Ronny: I stand by the decision of Your Ladyship.

 

Judge: The plaintiffs are entitles to put their case.

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

Kong: I don’t agree.

 

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

Kong: I do not agree.

 

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

 

Kong: Yes.

 

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

 

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

 

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

 

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

 

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

 

*Shows to witness Q686*

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

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