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Client ID : BACollege-000
Content Type : Cases and Legislation
Title : Kwong Hing Sauce Factory v Pengarah
Tanah dan Galian Wilayah Persekutuan
Kuala Lumpur
Delivery selection : Current Document
Number of documents delivered : 1
Document(s) e-mailed to : xianz97@gmail.com

2017 Thomson Reuters Malaysia Sdn Bhd (trading as Sweet & Maxwell Asia)
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*2 Kwong Hing Sauce Factory v Pengarah Tanah dan Galian Wilayah

Persekutuan Kuala Lumpur
High Court, Kuala Lumpur
30 September 2014

[2014] AMEJ 1525

Civil Suit No.21NCVC-35-06/2014
Wira Kamaludin Md Said, JC,

Civil procedure Injunctions Application for Interim interlocutory injunction to restrain

defendant from evicting, demolishing and interfering with plaintiff's land Whether requirements for
injunction had been satisfied

CASES REFERRED TO:

1. Keet Gerald Francis Noel John v. Mohd Noor Bin Abdullah & Ors [1995] 1 CLJ 293

2. American Cyanamid Co v. Ethicom Ltd [1975] AC 396

3. Dato Seri Anwar Ibrahim V Tun Dr Mahathir Bin Mohamad [2011] 1 MLJ 145

4. Saonah bte Bedul v Pentadbir Tanah dan Daerah Melaka Tengah [1994] 3 MLJ 758

5. Sabil Mulia (M) Sdn Bhd v Pengarah Hospital Tengku Ampuan Rahimah & Ors [2005] 3
MLJ 325

6. Superintendent of Lands and Surveys Kuching Division & Ors v Kuching Waterfront
Development Sdn Bhd [2009] 5 MLJ 607 (CA)

7. Tan Bun Teet & Ors v. Menteri Sains, Teknologi Dan Inovasi Malaysia & Ors [2013] 3 CLJ
1115 (CA)

LEGISLATION/RULES REFERRED TO

Order 29 r 1 Rules of the Court 2012

Section 29 of the Government Proceedings Act 1956 (Act 359)

Section 54 of the Specific Relief Act 1950 (Act 137)

Representation

Keppy Wong (Keppy Wong & Associates)for plaintiff

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Narkunavathy Sundareson SFC(Peguam Kanan Persekutuan)for defendant

GROUNDS OF JUDGMENT

Wira Kamaludin Md Said JC

Enclosure 4

This is the Plaintiffs application for an interim interlocutory injunction to restrain the Defendant from
evicting, demolishing or otherwise interfering with the Plaintiffs occupation of land held under the
description of No: 87 (11), Batu 4, Salak Selatan, 57100 Kuala Lumpur houses and/or the factory
thereon until the disposal of this suit.
The following are the relevant cause papers for this application :

(i) the Plaintiffs Notice of Application dated 17.6.2014;

(ii) the Plaintiffs Affidavit in Support affirmed by Foong Wing @ Foong Chun Hou on
12.6.2014;

(iii) the Affidavit in Reply affirmed by Narkunavathy Sundareson on 7.7.2014;

(iv) the Plaintiffs Affidavit in Support (II) affirmed by the Foong Wing @ Foong Chun Hou on
22.7.2014;

(v) the Plaintiffs Amended Statement of Claim; and *3

(v) the Defendants Amended Statement of Defence.

In the Plaintiffs statement of claim, the Plaintiff contends that :

(i) they had been in occupation of Government land held under the description of Lot 58481
Mukim Kuala Lumpur (Land) since 1948 under a temporary occupation licence (TOL);

(ii) the Plaintiff built and operated a sauce factory on the Land;

(iii) the Defendant failed to renew the TOL on 2010;

(iv) the Plaintiff then applied for the Land to be alienated to them but that application was
rejected by the Defendant on the grounds that the Land had been reserved for a public
purpose, a Chinese temple, in September 2010;

(v) the Defendant has yet to respond to the Plaintiffs appeal;

(vi) the Defendant was given notice dated 23.9.2013 to the Plaintiff to vacate the Land; *4

(vii) though the Plaintiff objected to the notice, the Defendant had yet to respond; and
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(viii) the Defendant has trespassed into the said land and demolished part of Plaintiffs factory
on 28.4.2014. The Electricity and water supply to the factory were cut off.

On these facts, the Plaintiff alleges that they have an equitable license to the Land. They maintain
that they would suffer losses if the Defendant was allowed to continue with the trespass on the Land
and demolish their factory thereon.
The Plaintiff seeks a declaration that the Defendants notice to vacate the Land dated 23.9.2013 is
null and a permanent injunction to prevent the Defendant from interfering with the Plaintiffs
occupation of the Land. The Plaintiff also seeks special and general damages.
The Defendant has denied the whole of the Plaintiffs claim and stated emphatically that the claim is
without merit and misconceived in law. *5

The law

It is trite that in Keet Gerald Francis Noel John v Mohd Noor Bin Abdullah & Ors [1995] 1 CLJ 293, the
law for an interlocutory injunction application is as follows:

A judge hearing an application for an interlocutory injunction should:

(1) ask himself whether the totality of the facts presented before him disclosed a bona fide
serious issue to be tried. He must refrain from making any determination on the merits of
the claim or any defence to it and identify with precision the issues raised and decide
whether they are serious enough to merit a trial. If he finds that no serious question is
disclosed, the relief should be refused. If, however, he finds that there are serious questions
to be tried, he should move on to the next step of his inquiry;

(2) having found that an issue has been disclosed that requires further investigation, he
must consider where the justice of the case lies. He must take into account all relevant
matters, *6 including the practical realities of the case before him and weigh the harm the
injunction would produce by its grant, against the harm that would result from its refusal;
and

(3) the judge must have in the forefront of his mind that the remedy that he is asked to
administer is discretionary, intended to produce a just result for the period between the date
of the application and the trial proper and to maintain the status quo. It is a judicial
discretion capable of correction on appeal. A judge should briefly set out in his judgment the
several factors that weighed in his mind when arriving at his conclusion.

Lord Diplock in the case of American Cyanamid Co v Ethicom Ltd [1975] AC 396 set the test of bona
fide serious issue to be tried as the determining factor in granting an injunction order. Then the Court
is to decide whether balance of convenience is in favor of the Plaintiff or the Defendant.
An application for an injunction is provided under O 29 r 1 of the Rules of Court 2012 . In this
application the injunction sought is against a Government Department. It is not disputed that in any
proceeding *7 against the Government, the Government Proceedings Act 1956 (Act 359) shall
apply.

The application

Section 29 of the Government Proceedings Act 1956 (Act 359) reads :

(1) In any civil proceedings by or against the Government, the court shall, subject to this
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Act, have power to make all such orders as it has power to make in proceedings between
subjects, and otherwise to give such appropriate relief as the case may require:

Provided that :

(a) where in any such proceedings against the Government any such relief is sought as
might in proceedings between subjects be granted by way of injunction or specific
performance, the court shall not grant an injunction or make an order for specific
performance, but may in lieu *8 thereof make an order declaratory of the rights of the
parties; and ...

(2) The Court shall not in any civil proceedings grant any injunction or make any order
against an officer of the Government if the effect of granting the injunction or making
the order would be to give any relief against the Government which could not have
been obtained in proceedings against the Government.

The Defendant has submitted that section 29 of Act 359 prohibits any form of injunction against the
Government and Section 29 must be considered in tandem with section 54 of the Specific Relief Act
1950 (Act 137) . The provision reads :

An injunction cannot be granted:

(d) to interfere with the public duties of any department of any Government in
Malaysia, or with the sovereign acts of a foreign Government; ... *9

The Plaintiff submitted that the above points have not been pleaded or averred in the Defendants
Affidavit in Reply. The Plaintiff submitted that this Court should reject the argument now placed before
it because the Defendant is bound by its own pleading. The Plaintiffs Counsel contention in my view
is without merit on reason that the argument raised by the Defendant is clearly on points of law which
can be raised at any stage of the proceedings with or without notice.
In Dato Seri Anwar Ibrahim v. Tun Dr Mahathir Bin Mohamad [2011] 1 MLJ 145 the Court has held
that:

Even though, the preliminary objection raised in that case goes to the issue of jurisdiction, the
decision supports the principle that an issue of law may be raised at any stage of the
proceedings with or without notice. The stand taken by the Court of Appeal found support in the
case of Lim Geak Liang v East West UMI Insurance Bhd [1997] 3 MLJ 517 , a decision of the
Federal Court, wherein Mohamed Dzaidin FCJ (as he then was) at p 521 stated:

It is worth noting that this issue was never pleaded and argued in the courts below. At the
outset of the proceedings, Cik Zachariah, counsel for the defendant, seized the *10
opportunity by raising an objection that it was not open to the plaintiff to argue on appeal a
fresh point not litigated and decided by the courts below. We over ruled the objection upon
the basis that since the ground of appeal concerned the construction of condition 4 of the
policy, it is within our discretion to hear the argument of the parties. For this conclusion, we
are guided by the decision of the Federal Court in Gulwant Singh v Abdul Khalik [1965] 2
MLJ 55; [1965] 1 LNS 47 (per Thomson LP at p 58 (MLJ):

A point which is not raised at the trial and which is raised for the first time in the Court of
Appeal must always be most jealously scrutinized (The Tasmania (1980) 15 App Cas
223 at p 225). The question of whether effect should be given to such a point is,
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however, one for discretion (see Ewa Perkowski v Wellington Corporation [1959] AC 53
at p 69) and the principles on which that discretion may be exercised have been thus
set out in the case of Connecticut Fire Insurance Company v Kavanagh [1892] AC 473
at p 480 (per Lord Watson): *11

When a question of law is raised for the first time in a court of last resort, upon the
construction of a document, or upon facts either admitted or proved beyond
controversy, it is not only competent but expedient, in the interests of justice, to
entertain the plea.

Plaintiffs contention is without merit and rejected.

Coming back to this application, the Plaintiff reiterates the narrative from their Statement of Claim in
the Affidavit in Support of the application for injunction. They further contend that the Defendant
acted arbitrary and oppressive in seeking to enforce the notice causing damage and loss to the
Plaintiff.
The Plaintiff relies on the Orbiter dictum by Mohd Noor J at page 759B-D in the case of Saonah bte
Bedul v Pentadbir Tanah dan Daerah Melaka Tengah [1994] 3 MLJ 758 where the learned judge
remark in passing that an interim injunction could be issued against the defendant or an officer of
the Government in view of s. 29 ( 20 of the Government Proceedings Act 1956 read together with s.
50 , 51 and 54 (d) of the Specific Relief Act 1950 . *12
The Plaintiff further submitted that the Court of Appeal in Sabil Mulia (M) Sdn Bhd v Pengarah
Hospital Tengku Ampuan Rahimah & Ors [2005] 3 MLJ 325 at page 335H-336E has endorsed the
Orbiter dictum o f Mohd Noor J in Saonah bte Bedul. Gopal Sri Ram JCA in his judgment has held
that s. 29 of the Act do not prohibit the grant of temporary injunction against the Government.
Plaintiff also relies on the case of Minister of Finance, Government of Sabah v Petrojasa Sdn Bhd
[2008] 4 MLJ 641 where the Federal Court has followed the case of Sabil Mulia (M) Sdn Bhd and at
page 665G-H,held that:

In that case the Court of Appeal held, inter alia, that the courts have jurisdiction to grant interim
and permanent injunctions against any servant of the government. It also held that it is too late
in the day to argue that s. 29 of the GPA bars the grant of interlocutory or even an interim
injunction against the government. That is not the issue before us, as such I would not venture
to say anything more on this save that the courts have moved away from the traditional stand
that no order of injunction may be granted against the government. *13

Therefore by the said authorities, the Plaintiff submitted that this Court has the jurisdiction to grant an
injunction against the Defendant and section 29 of the Government Proceedings Act 1956 and
section 54 of the Specific Relief Act 1950 do not prohibit an injunction be entered against the
Defendant.

Opinion of the Court

After hearing submissions from the Plaintiffs Counsel and the Senior Federal Counsel representing
the Defendant and after reading their written submission filed herein, I dismissed the Plaintiff
application in Enclosure 4 for an order for injunction on the following reasons.
The Defendant has relied on the authority of Superintendent of Lands and Surveys Kuching Division
& Ors v Kuching Waterfront Development Sdn Bhd [2009] 5 MLJ 607 (CA) at pp 617 wherein Suriyadi
JCA (as His Lordship then was) held :

Needless to say the words of s 29(1) (a) of the GPA are quite clear and there is no reason to
depart or whittle away what has been built into it. In Lim Kit Siang v. United Engineers (M) Sdn
Bhd & Ors [1987] 2 CLJ 195 , the Supreme Court affirmed the view of *14 the High Court judge
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as regards the express prohibition in s 29 , though not the extension of its scope.

This Court agrees that the above said case is the authority to follow. The authorities relied by the
Plaintiff have been discussed in length and distinguished in this case. There is no reason for me not
to agree with the reasons given by Suriyadi JCA. The express provision of Section 29 of the
Government Proceedings Act is very clear that it prohibits the granting of injunction against the
Government.
In fact in the latest case of Tan Bun Teet & Ors v. Menteri Sains, Teknologi Dan Inovasi Malaysia &
Ors [2013] 3 CLJ 1115 (CA) wherein Azahar Mohamad JCA held at 1128 :

An injunction, interim/interlocutory or permanent, cannot be granted against the

government under s. 29 of the GPA and under s. 54 of the SPA . The authority to support this
proposition can be found in the decision of our then Supreme Court in Lim Kit Siang v. United
Engineers (M) Bhd & Ors [1987] 2 CLJ 195; [1987] CLJ (Rep) 170 SC . In particular, the relevant
passage from the judgment states: *15

This means that no injunction could be directly or indirectly issued against the
Government or its officers. Similarly, the court has no jurisdiction to grant an injunction
against a private litigant if the injunction would have the effect of restraining the
Government or its officers from performing their functions. This has been the interpretation
which has been placed by the courts in England as well as in this country.
The principle of law enunciated above has been reaffirmed by the Court of Appeal in
Superintendant of Lands and Surveys, Kuching Division & Ors v. Kuching Waterfront
Development Sdn Bhd [2009] 6 CLJ 751 .
It follows from this, after giving due considerations to the submissions of all parties, if the
relief sought is granted, this will interfere with the public duty of the 2nd respondent under
the AELA and as such, s. 29 of the GPA protects the 2nd respondent, being a public
authority, from any form of injunctive orders . ( Emphasis added) *16

In paragraph 6 of the Affidavit in Reply, the Defendant has set out the chronology of events leading to
this application and supported each averment with documents.
As submitted by the Plaintiff and the averment in the Affidavit, it is obvious that the Plaintiffs claim is
premised entirely on their continued occupation of the Land and nothing more.
At this juncture, it is noteworthy that though the Plaintiff was initially in occupation of the Land under a
TOL, that occupation has since become unlawful upon the expiration of the TOL in 2008.
As such, I must agree with the Defendants contention that this claim flies in the face of the express
provision of section 48 of the National Land Code which reads :

No title to State land shall be acquired by possession, unlawful occupation or occupation under
any licence for any period whatsoever.

If the relief sought is granted, this will interfere with the public duty of the Defendant under the NLC
and as such, s. 29 of the GPA protects *17 the Defendant, being a public authority, from any form
of injunctive orders.

Conclusion

In light of the above mentioned circumstances, it is my considered opinion that it is wrong to seek an
injunction against the Defendant as this is contrary to law. The Plaintiffs application as a whole is
without merit and misconceived in law.
The Plaintiffs application is dismissed with costs of RM 3,000.00.
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