Local planning permission: The right of appeal

This is the case note of MPPP v Lembaga Rayuan Negeri Pulau Pinang & Ors.

MPPP is the local planning authority. Lembaga Rayuan is the Appeal Board formed under section 36 Town and Country Planning Act (TCPA).

The issue to be determined is the scope of appeal under Section 23(1) TCPA.
It is trite law that right of appeal is the creation of statute.

The Court of Appeal ruled that:
1. An appeal to Appeal Board under the Section 23(1) TCPA is restricted to 3 scenarios whereby the local planning authority (in this case, MPPP):
(a) grants the planning permission absolutely
(b) grants the planning permission with condition
(c) refuses the planning permission.


2. According to the Court of Appeal, the Appeal Board is a fast track tribunal in resolving the issues on local planning permission. The limited right of appeal is to avoid the Appeal Board to be bogged down with all appeals against all the directions given by the local planning authority.


3. For any other scenarios, the correct remedy is judicial review and not appeal.


There are more stringent requirements to be fulfilled in the case of judicial review. One has to fulfill certain requirements under Order 53, Rules of High Court namely leave requirement, locus standi (aggrieved person), 40 days after the decision been communicated to etc.
Furthermore, the scope of judicial review is limited to the process of decision making and not the merit of the case.

This case is now pending before Federal Court.

In another unrelated case (the case of columbarium, reported on 22 Nov 2005, NST), the counsel for MPPP quoted the judgment of Court of Appeal and submitted that the rejection of the extension of the planning permission is not appealable, thus the Appeal Board does not have jurisdiction to hear the case. The Appeal board deferred the case to August 2, 2006. Apparently, the Appeal Board is going to wait for finality of decision from the Federal Court.

I feel good today !!!

USM Vice Chancellor has instructed the disiplinary proceedings to be postponed to an unspecified date. To me, this is as good as dropping the charges.

My little contribution is to write-up a Penang DAPSY statement on Wednesday (1am to 3am).

Malaysiakini (BM version) http://www.malaysiakini.com/news/47405

Merdeka Review (Chinese version) http://www.merdekareview.com/news_view.asp?id=1053

Gugurkan Pertuduhan Terhadap Lima orang mahasiswa USM

Kenyataan Media Pemuda DAP Pulau Pinang pada 23hb Februari 2006

Gugurkan Pertuduhan terhadap lima orang mahasiswa USM

Kami, Pemuda DAP Pulau Pinang, mendesak supaya pihak pentadbir Universiti Sains Malaysia (USM) menggugurkan pertuduhan tanpa syarat dengan serta merta terhadap lima orang mahasiswa-mahasiswi di bawah Kaedah USM (Tatatertib Pelajar) 1999.

Kelima-lima pelajar tersebut telah diminta untuk menghadiri satu prosiding tatatertib pada 27hb Februari 2006 (Isnin) untuk menjawab pertuduhan secara berasingan iaitu melakukan kesalahan mengedar risalah atau memberi kenyataan kepada wartawan akhbar tanpa kelulusan Naib Canselor terlebih dahulu.

Hukuman berat boleh dikenakan ke atas mereka termasuk menggantung status sebagai pelajar untuk tempoh tertentu dan hukuman maksimum ialah dipecat dari Universiti.

Pertuduhan ke atas kelima-lima pelajar USM tersebut adalah bercanggah dengan hak kebebasan bersuara yang dijamin oleh Perisytiharan Antarabangsa berkenaan Hak Asasi Manusia 1948 dan Perlembagaan Persekutuan.

Kami ingin menarik perhatian umum kepada petikan wawancara Naib Canselor USM, Prof Datuk Dzulkifli Abdul Razak yang diterbitkan di mukasurat 4 akhbar New Straits Times (NST) bertarikh 20hb Februari 2006 yang berbunyi antara lain:
“ … with the Universities and University colleges Act hanging over their heads, students are afraid to articulate their thoughts”

Pendapat Naib Canselor USM tersebut sebenarnya adalah selari dengan apa yang dititah oleh Yang di-Pertuan Agong Tuanku Syed Sirajuddin Syed Putra Jamalullail pada 7hb Februari 2006. Dalam ucapan perasmian Persidangan Antarabangsa Pentadbir Universiti-universiti yang berlangsung di Universiti Teknologi Mara, baginda bertitah, antara lain,

“University administrators must be prepared to listen to ideas from others although these might not be in line with their aspirations. Silent culture is not a healthy culture in an institution of higher education” dilaporkan oleh Bernama.

Pertuduhan ke atas lima orang mahasiswa adalah bercanggahan dengan titah oleh Yang di-Pertuan Agong yang pernah menjadi Canselor USM. Malahan, Prof Naib Canselor juga mengakui Akta Kolej dan Kolej Universiti 1971 merupakan satu bebanan ke atas pelajar sehingga mereka takut untuk menyatakan pendapat mereka.

Kami berpendapat universiti adalah sebuah tempat untuk melatih pemuda-pemudi kita untuk membaca, berfikir, mengeluarkan pendapat serta bersosial. Mahasiswa hendaklah diberi ruang lingkup luas. Sebarang kekangan birokrasi harus dielakkan sama sekali.

Kaedah 12(1) Kaedah USM (Tataterib Pelajar) 1999 menyebut:
“Tiada pelajar….. tanpa kebenaran terdahulu Naib Canselor, boleh menerbitkan, membahagi-bahagikan atau mengedarkan apa-apa dokumen-dokumen di dalam Kampus atau di luar kampus

Kaedah 15 pula adalah berkenaan sekatan representasi berhubungan dengan Universiti.

Kami berpendapat kedua-dua kaedah tersebut adalah ultra vires (bercanggahan) dengan Artikel 10 Perlembagaan Persekutuan kerana mengenakan sekatan yang terlampau luas dan tidak sah dari segi undang-undang terhadap kebebasan bersuara.

Adakah ini bermaksud seseorang mahasiswa perlu mendapatkan kebenaran Naib Canselor setiap kali dia menulis emel, mengemaskinikan halaman web atau blog? Kegiatan yang disebutkan tadi adalah terjumlah kepada penerbitan, pembahagian, pengedaran dokumen serta representasi berhubungan dengan Universiti. Ini sememangnya kerenah birokrasi tahap tertinggi dan merupakan satu bebanan atas kepala mahasiswa seperti yang disebutkan oleh Prof Naib Canselor. Sekira kita meneliti ungkapan Prof Naib Canselor di NST, beliau sememangnya memberikan kebenaran tersirat dan menyahut titah Yang dipertuan Agong.

Dengan ini, kami, Pemuda DAP Pulau Pinang, menuntut supaya

1. kelima-lima pelajar tersebut dilepaskan daripada pertuduhan tanpa syarat dan dengan serta-merta.

2. Kaedah USM (Tatatertib Pelajar) 1999 dan Akta Kolej dan Kolej Universiti 1971 digantikan dengan perundangan baru demi memberikan nafas baru kepada universiti-universiti awam di negara ini.

Perundangan yang baru harus berorientasikan kebebasan akademik dengan penekanan untuk melahirkan budaya membaca, berfikir, berkomunikasi supaya mahasiswa kita dapat bersaing dengan mahasiswa universiti yang bertaraf dunia.

Straight from the horse's mouth

A few of us met up with a group of USM students on Sunday. Five of them have been summoned by the USM authority to attend the disciplinary proceeding next Monday.

I basically brief them about the procedural aspect of the hearing. I also hand-over a copy of Kaedah Tatatertib USM (1999) to them. Incidentally, I received the Kaedah from their senior who was summoned to the hearing back in 2002.

Here is a piece of info I will convey to them. The news report appeared in New Straits Times (Feb 20th, Monday. p4)

Updates:
1. The USM students filed their grievances to Suhakam on Tuesday (Feb 21th)

2. You may help by sending this Appeal Letter to USM.

Pawnshop break-in -- Remedy for the clients

As I mentioned earlier, Tai On Pawnshop was broken into last month.

I came across this advertisement dated 12 Feb 2006.

The relevant section is Section 22 Pawnborkers Act 1972.

Section 22(2) states that
"The licensee shall be responsible for the loss of any pledge, whether such loss be caused by fire or otherwise and shall be responsible for the damage of the pledge by fire or in consequence of fire"

Section 22(3) stipulates that:
"In the case of any pledge destroyed or damaged or in consequence of fire, the value of the pledge shall, for the purposes of the compensation of the pawner, be assumed to be one quarter more than the amount of the loan thereon".

Having said that, there was legal precedent in the case of Thai Sun Pawnshop as reported in http://www.malaysiakini.com/news/28844 (Dated 2 Aug 2004). In that case, the Magistrate ruled that the obligation to repay 25% of the ticket value is applicable in the case of loss through a fire. For robbery cases, the client could claim the balance plus interest and cost. In other words, the client could get the full cash value of the pawned item.

Base on the calculation by Tai On Pawnshop, the client can probably get back 62.5% of the value of the pawned item. As a normal practice, the loaned sum is 50%. The client can only claim 1/4 of the 50%. (50%+12.5%=62.5%)

For the clients out there, they have two choices:
1. To submit the claim to the Accountant appointed by Tai On Pawnshop and be contented of the 62.5%.

2. The clients can also submit the claim to the Magistrate Court within 12 months from the date of break-in (15 Jan2006) and claims for the full value plus interest (24% per annum) and legal costs.

My reading list for this week

1. Making sense of the latest development on the concept of indefeasibility of title.

Any lawyer worth his salt will tell you that the most important section of the National Land Code is section 340. It deals with the concept of indefeasiblity of title.

The Federal Court has delivered the judgment in the case of Boonsom Boonyonit recognising the concept of immediate indefeasibility of title. That was in year 2001.

Since then, there has been some development in this area namely in the case of State Tailor Sdn Bhd v Nallapan (Court of Appeal). In addtion to that, PK Nathan (a senior lawyer) has written a lengthy article on this area as well.


2. Also I will explore in the area of town planning law.
Court of Appeal has set new ground in law in the case of MPPP v Lembaga Rayuan Negeri Pulau Pinang. This has some bearing to the pending case of columbarium (developer: Stamford Raffles By The Sea Sdn Bhd).

Besides that, I will read up the lecture notes by Dr Lee Lik Meng (HBP, USM)

3. Last by not least, I will check out the Pawnbrokers Act 1972.
Tai On Pawn shop was broken into last month. I passed by Tai On yesterday and noticed a sizeable crowd in front of the shop. The shop was closed.

What are the legal remedies to the consumers?

Happy Thaipusam and Chap Goh Mei

It is going to be a twin festival and three-day weekend for me.

Happy Thaipusam (Saturday) and Chap Goh Mei (Sunday).

The story of "Nien"

My little princess, Qing Lynn, (3 years and 3 months old) has started attending kindergarten. When the class resumed after Chinese New Year, the kindergarten organised a small party. The teacher asked the class about the origin of the Chinese New Year.

Qing Lynn stepped up and told the class about the story of the nien.

This is what she told the class (in Mandarin):
"My father told me about this. Nien was an extremely cruel beast, which the Chinese believe, eats people on New Year's Eve. To keep Nien away, red-paper couplets are pasted on doors, torches are lit, and firecrackers are set off throughout the night, because Nien is said to fear the color red, the light of fire, and loud noises. Early the next morning, as feelings of triumph and renewal fill the air at successfully keeping Nien away for another year, the most popular greeting heard is kung-hsi, or "congratulations."

She did not reveal to my wife and me about this story-telling event.
I heard it from another parent.

My immediate reaction as a proud father - I have to continue to devote more time for the bed-time story-telling.

Next year, we will form a lion dance team comprises of Qing Lynn and her brother/cousins.
Qing Lynn will be the front dancer. The other team members are HuYi (back dancer), Eason (drummer) and Qing Ray (the clown).

A revisit of Balachandran v PP

I have mentioned in my earlier blog that Balachandran v PP is a controversial judgment.

I found my support in PP v Sidek Abdullah (High Court of Shah Alam).

In the case of PP v Sidek Abdullah (judgment date: Jan 31st 2005), Justice Hishamuddin Yunus has provided an alternative view from the Federal Court judgment of Balachandran v PP (judgment date: Nov 23rd 2004).

For background information, Balachandran is the first Federal Court judicial pronouncement after the amendment to section 180 of the Criminal Procedure Codes (1997). Earlier, Court of Appeal also expressed the similar ratio decendi in the case of Looi Kow Chai

According to his Lordship, the case of Balachandran actually enunciates the following principles:
-- Twin principles of maximum evaluation. Maximum evaluation at both the prosecution case and defence case.
-- Principle of automatic conviction if there is a prima facie case and the defendant chose to remain silent.

Justice Hishamuddin found that the submission of the Deputy Public Prosecutor (DPP) was more persuasive. The DPP submitted the interpretation of S180 in Balachandran is contrary to the intention of Parliament. There should be two stages of evaluation: The first is the minimal evaluation (prima facie) at the end of the prosecution case. The second is the maximum evaluation (beyond reasonable doubt) at the end of the defence case. The DPP has drawn the attention of the Court to the Explanatory Statement to the Bill.

Having said that, Justice Hishamuddin noted that base on the principle of binding precedent, he has no choice but to follow Balachandran.

The implication of Balachandran are, inter alia,:
1. The prosecution has to overcome a higher hurdle in the prosecution case. If they failed to do so, the accused is entitled to acquittal.
2. It is a trite principle that an accused is entitled to remain silent as of right. That right has been vitiated by the judgment of Balachandran.

The submission of DPP has the following implication:
1. It will be easier for the prosecution to cross the first hurdle.
2. The right to remain silent will be kept intact.

As Justice Michael Kirby once said: "Judicial dissent is an appeal to the future". Sidek Abdullah perhaps is the starting point.

Lock-up Rules -- Adopt the drafting style of Penal Code

The Lock-up Rules 1953 is a piece of pre-Merdeka subsidiary legislation.

As for any pre-Merdeka legislation, the authoritative text is in English.
At the Police Cadet School, the Police rank-and-file are trained in the National Language.

The National Language version of Rule 9A is as following:
Kaedah 9A: Gunting Rambut
"Tiap-tiap banduan, kecuali seorang Sikh yang biasa menyimpan rambut panjang atas alasan keagamaan, hendaklah waktu masuk digunting rambutnya pendek-pendek. "

The Attorney General's Chambers should reconcile the Lock-up Rules and the Prisons Regulation 2000.

Rule 17(3) of the Prisons Regulation 2000 provided:
"The hair of unconvicted prisoners shall be kept, as far as cleanliness permits, in the same state as it was on admission"

It is submitted the AG's Chambers should adopt the drafting style of Penal Code and Evidence Act by inserting illustration.

Such illustration may sounds as following:
"Person with head lice or other head skin disease, which is contagious in nature, shall be
shave bald"

Come on, you don't expect the police constable to apply the literal or purposive interpretation on the lock-up rules.

On the legal argument, Roger Tan has put this succintly in his article to New Straits Times http://www.malaysianbar.org.my/content/view/2383/2/

Case note: Took Leng How v PP (Part II)

It was a gruesome murder case happened in Singapore. The deceased was Huang Na 黄娜, eight years old from mainland China.

Having said that, it is a good case for the comparison study on criminal and evidence law.

I would like to compare the case of Took Leng How (Singapore) and the case of Ahmad Najib (Malaysia). Ahmad Najib was convicted in the Malaysia High Court for murdering Canny Ong.


1. Time involved - From the date of crime to date of final judgment.

Huang Na was murdered on 10-10-04. Took Leng How was sentenced by the Court of Appeal on 26-1-06. The decision of CA is final and non-appealable. Took Leng How will be send to gallows if his petition for clemency failed.

Canny Ong was murdered on 14-6-03. Ahmad Najib was sentenced to death by the High Court on 23-2-05. The case is pending at the Court of Appeal. If the accused lost his case at CA, he will still have a chance to appeal to Federal Court on point of fact or law. Likewise, Ahmad Najib will also has a chance to ask for clemency from the Sultan of Selangor.

Conclusion: Since both are capital cases, it is not to the benefit of the accused to have a speedier trial. Justice rush, Justice burned. No credit to the Singapore judiciary system for such a speedier trial.

2. Both Took Leng How and Ahmad Najib chose to remain silent.

At the common law, the accused has 3 options namely: (a) To give sworn evidence in the witness box (b) to give unsworn evidence from the dock (c) to remain silent. It is not codified in the current Malaysian Criminal Procedure Code or Evidence Act.

Anyway, there is a proposed amendment to the Malaysia Criminal Procedure Code to insert Section 173(h)(i) by imposing a duty to the court to read and explain the three options for the defence to the accused. The proposed amendment is now at the Second Reading Stage at Dewan Rakyat.

In the case of Balachadran v PP, Augustine Paul JCA (as he then was) sitting in the Federal Court said:

"Since the Court, in ruling that a prima facie case has been made out, must be satisfied that the evidence adduced can be overthrown only by evidence in rebuttal it follows that if it is not rebutted it must prevail. Thus if the accused elects to remain silent he must be convicted. The test at the close of the case for the prosecution would therefore be: Is the evidence sufficient to convict the accused if he elects to remain silent? If the answer is in the affirmative then a prima facie case has been made out. This must, as of necessity, require a consideration of the existence of any reasonable doubt in the case for the prosecution. If there is any such doubt there can be no prima facie case. "

This is the first time the Malaysia Federal Court has made a ruling on the outcome of the option to remain silent. Perhaps, the counsel in the Ahmad Najib case will appeal to Federal Court base on this point of law in the event that they lost their case in the Court of Appeal.

Took Leng How chose not to testify at the trial, his counsel nevertheless raised two defences. One interesting point to note is that there is a concept of adverse inference in Section 196(5) of Singapore CPC which allows the court to draw whatever inferences as appear proper from an accused's failure to testify when called upon by the court to give evidence.

Singapore Court of Appeal commented that such inferences can go towards many things; the strongest inference being one of guilt itself. Having said that, the Court cautioned that the silence of the accused cannot fill in any gaps in the prosecution's case.

There is no concept of adverse inference for remaining silent in the Malaysia CPC. Base on this point alone, it appears to me the judgment in Balachandran (as highlighted by me in yellow) is not sound. The Parliamentary Select Committee on CPC probably should look at this aspect as well.

Case note: Took Leng How v PP (Part I)

The accused, Took Leng How 卓良豪, was charged in the Singapore High Court for committing murder by causing the death of Huang Na 黄娜 (Eight years old). High Court has passed the sentence of death.

The 3-man panel of Court of Appeal affirmed the mandatory death sentence passed by the High Court in a two-to-one decision. The full judgment is available here.

The only remaining option for Ah How is to file a Petition of Clemency to the President of Singapore. There is an on-going online petition . He has appealed for a reduction of sentence of murder (death penalty) to culpable homicide (custodial sentence).

Repeal UUCA (Part II) Repeal the following clauses too.

I have found out that there are several more legislations which are in pari materia (read as similar in nature) to S15 UUCA.

S15 UUCA is a clause on the "prohibition to join society, political party, trade union and other organisation except approval obtained in advanced".

1. Section 15: Universities and Universities College Act -- applicable to all public universities/universities colleges with the exception of UiTM and IIUM.

2. Section 47: Private Higher Educational Institutions Act 1996 -- applicable to private institutions.

3. Section 23F: University Technology Mara Act 1976 -- applicable to UiTM only.

4. Section 10: Educational Institutions (Discipline) Act 1976 -- applicable to all teachers training colleges, Institut Technologi Mara and Polytechnics.

5. Rule 28 Students' Discipline Rules 2004 of International Islamic University (IIU)
http://www.iiu.edu.my/filestadd/st_disciplinerules2004.pdf -- applicable to IIU.


On a side note, 黄伟益 Sdr Ng Wei Aik has blogged an interesing article on the proposed National Higher Education Bill. 高教法案牵系大专法令 http://nweiaik.blogspot.com/2006/01/blog-post_27.html