Beruflich Dokumente
Kultur Dokumente
December 1, 2017 10
The first applicant was granted a temporary hotel licence for a period between
November 1, 2015 and October 31, 2016. The licence was granted in pursuant of 20
a moratorium by the State Government of Penang for unlicensed hotels. The
temporary licence was however terminated on April 22, 2016 premised on the
reason that an application by the owner of the land on which the hotel was
standing for a change of use of the building from "commercial offices" to 25
"commercial hotel" was rejected on April 22, 2016. Hence the instant application
for judicial review for an order of certiorari that the respondent's decision to
revoke the temporary lodging house permit be quashed and/or set aside.
30
Issue
Whether the termination at the material time that it was done, with the
temporary licence still having six months to run to its conclusion is just and 35
reasonable.
1. When the temporary licence was issued to the applicants, the building at 40
the material time has not undergone a change of use of the building and the
temporary licence was in its validity and duration not premised on
whether the original landowner could successfully apply for a change of
use. When the licence was granted to the applicants, there was no change of
use and the license was conditional to a successful change of use
application. [see p 461 para 13]
1 granted and issued temporary licence. Thus the termination at the point of
time when the granted temporary licence still has six months to its
expiration was definitely premature. [see p 461 para 14]
15 5. Although the application for change of use failed, the validity period for
the temporary licence should still be allowed to run its course until its
natural expiry of the fixed term period on October 31, 2016. [see p 463 para
18]
20
6. The effect of the failure to obtain the change of use on the part of the
applicants is merely that the respondent would be entitled to refuse an
extension of the licence with the temporary licence dying its natural death
25 and not to terminate the temporary licence already obtained before such
licence reaches its expiry. [see p 465 para 29]
Ngiam Geok Mooi v Pacific World Destination East Sdn Bhd [2016] 6 CLJ 395, CA (ref)
40 Pembinaan Batu Jaya Sdn Bhd v Pengarah Tanah dan Galian, Selangor & Anor [2016]
AMEJ 0895; [2016] 5 CLJ 250, CA (ref)
Pengarah Tanah dan Galian Wilayah Persekutuan v Sri Lempah Enterprise Sdn Bhd
[1978] 1 MLJ 135, FC (foll)
Sangka b Chuka & Anor v Pentadbir Tanah Daerah Mersing, Johor & 5 Ors [2016]
AMEJ 0109; [2016] 4 CLJ 585, HC (ref)
Malaysia
Local Government Act 1976, ss 9, 107(2)
Rules of Court 2012, Order 37, Order 53 r 3(2)
458 All Malaysia Reports [2018] 1 AMR
Ong Yu Shin and Marcia Lopez (The Chambers of Yu Shin Ong) for applicants 1
Murgan D Maniam and Cyrus Lim (Presgrave & Matthews) for respondent
Introduction
[1] The application for judicial review in this case was granted its leave on July 10
13, 2016 for the applicants to commence judicial review proceedings against the
respondent for these reliefs:
(a) An order for certiorari that the respondent's decision on April 22, 2016 to 15
revoke the temporary lodging house permit dated November 1, 2015
with Serial No. A00984 be quashed and/or set aside.
[2] The cause papers for the judicial review application are:
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(a) Statement in accordance with Order 53 r 3(2) of the Rules of Court 2012.
[3] The respondent opposes the said application by filing these affidavits:
[5] This court having perused the written submissions of the applicants and the
15 respondent as well as further oral submissions decided on September 26, 2017 to
allow the judicial review with costs of RM25,000. Dissatisfied with the findings of
this court, the respondent has now filed an appeal to the Court of Appeal hence
these grounds of judgment.
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Salient facts
[6] The first applicant was the applicant in October 2015 for the temporary hotel
licence with the second applicant being the hotel for which the licence (Ref No. A
25
000984) was granted for a period between November 1, 2015 to October 31, 2016.
The respondent was the local authority with the power and authority to grant the
said licence. The application is marked as exh A in the afidavit sokongan affirmed
on June 10, 2016 (encl 4).
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[7] The licence was granted in pursuant of a moratorium by the State
Government of Penang for unlicensed hotels marked as exh B in encl 4, known
as:
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"Keputusan Mesyuarat Jawatankuasa Perancang Negeri Bil. 3/2015 [K31-3/2015]
- Pemutihan Hotel Tanpa Lesen di Kawasan Pentadbiran Majlis Perbandaran
Pulau Pinang (MPPP)" bertarikh 18.03.2015.
[9] The terms and conditions for the temporary licence marked as exh D in encl
4 are as below:
1. Memasang 2 unit alat pemadam api (9 kg) jenis serbuk kering (dry powder
fire extinguisher) dalam jarak setiap 15 meter laluan bangunan di setiap
tingkat bangunan hotel.
460 All Malaysia Reports [2018] 1 AMR
2. Memasang loceng kebakaran (fire alarm) jenis manual pecah kaca (break 1
glass) atau jenis automatik pengesan haba/asap bagi setiap satu unit dalam
jarak 4.5 meter laluan bangunan dan jug a di dalam setiap bilik hotel.
6. Semua pintu akses utama untuk laluan kecemasan tidak dibenarkan sama
sekali dikunci dengan mangga (padlock). 15
7. Memastikan semua akses utama untuk laluan kecemasan bebas dari
sebarang halangan.
9. Menyediakan peti rawatan kecemasan (first aid Kit) yang sempurna dan
mencukupi.
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10. Menjaga dan menyelenggara premis hotel supaya sentiasa bersih dan bebas
dari sebarang serangga-serangga pembawa penyakit berjangkit.
[10] The temporary licence however was terminated with immediate effect on
April 22, 2016 as reflected in the letter from the respondent marked as exh E in 40
encl 4. The termination was premised upon the reason that an application by the
owner of the land on which the hotel was standing, being Jelutong Development
Sdn Bhd, for a change of use of the building from "commercial offices" to
"commercial hotel" was rejected on April 22, 2016 with the relevant document
marked as exh F in encl 4.
[11] This court in hearing this judicial review pertaining to the prayers contained
in the application has to decide whether the termination at the material time that
it was done, with the temporary licence still having six months to run to its
conclusion is just and reasonable.
Datin Noorzaina binti Mat Zain & Anor v
Majlis Bandaraya Pulau Pinang
[2018] 1 AMR Azmi Abdullah JC 461
1 Governing principles
[12] The precedent of Ngiam Geok Mooi v Pacific World Destination East Sdn Bhd
[2016] 6 CLJ 395 has spelled out the principles the court should be considering in
an application for judicial review:
5
[17] The classic statement of the ground for judicial review is that of Lord Diplock
in Council of Civil Service Unions v Minister For The Civil Service [1985] AC 374, 400:
"... one can conveniently classify under three heads the grounds upon which
10 administrative action is subject to control by judicial review. The first ground I
would call 'illegality', the second 'irrationality' and the third 'procedural
impropriety"'. Grounds such as acting ultra vires, errors of law and/or fact,
onerous conditions, improper purpose, relevant and irrelevant factors, acting in
good faith, fettering discretion, unauthorized delegation, failure to act etc., fall
15
under the heading "illegality". Procedural impropriety may be due to the failure to
comply with the mandatory procedures such as breach of natural justice, such as
audi alteram partem absence of bias, the duty to act fairly, legitimate expectations,
failure to give reasons etc. (p 402)
20
Deliberations of the court
[13] This court is satisfied that when the temporary licence was issued to the
applicants, the building at the material time has not undergone a change of use of
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the building and the temporary licence was in its validity and duration not
premised on whether the original landowner could successfully apply for a
change of use. When the licence was granted to the applicants, it's undisputed
that there was no change of use and the license was conditional to a successful
30 change of use application.
[16] The media statement dated October 2, 2015 by the State EXCO Member,
Chow Kon Yew has clearly stated that hotels which are on temporary licence but
fails to obtain a change of use would not face any action until their temporary
licence expires. The relevant statement marked as exh G in encl 4 is hereby
produced:
462 All Malaysia Reports [2018] 1 AMR
[17] This court is of the view that it is not a condition for the continued validity 40
of the temporary licence during the period that the temporary licence continues
to run that the applicants must obtain a successful change of use. The only
condition prevalent is that when the temporary licence has been granted, there
must be an application for change of use and the fact that this was done by the
first applicant is undisputed, only that it was rejected.
[18] This court finds that though the application for change of use failed, the
validity period for the temporary licence should still be allowed to run its course
until its natural expiry of the fixed term period on October 31, 2016. There was no
necessity for the abrupt termination by the respondent since nowhere it is stated
that a failure to obtain a change of use would result in an immediate termination
of the temporary already granted to the applicants.
Datin Noorzaina binti Mat Zain & Anor v
Majlis Bandaraya Pulau Pinang
[2018] 1 AMR Azmi Abdullah JC 463
1 [19] By using the failure to obtain a change of use as a reason to terminate the
temporary licence renders the action of the respondent as taking into account an
irrelevant consideration that was never imposed as a condition when the
temporary licence was granted in the first place. The same media statement with
5 the excerpt produced below has clearly stated that the temporary licence would
be allowed to run its course and action would only be taken upon its expiry:
Isu semasa
10 Mesyuarat MMK pada 30 September 2015 telah membuat keputusan bahawa program
pemulihan hotel akan dilanjut selama satu tahun lagi dengan syarat-syarat berikut:
Kategori 1
15 Bagi pengusaha-pengusaha Hotel yang berdaftar di bawah program pemutihan yang telah
mengemukakan permohonan pelan kepada PB T pada atau sebelum 31. 10.2015 adalah
Jayak untuk memperbaharui permit sementara bagi tahun berikutnya
(01.11.2015-31.10.2016) dengan kadar bayaran Jama (RM 2,400.00/RM 1,200.00)
20 mengikut kategori rumah tumpanganlhotel)
Fasa 4
[20] The applicants argue that the termination was an effect of a letter by Jeff Ooi,
30 the Member of Parliament of Jelutong dated April 18, 2016 marked as exh H in
encl 4 as the real reason for termination and this indicates that the actual reason
for the termination of the temporary licence being a political interference due to
the political alliance of the applicants. This court however, restrains itself from
35 taking cognisance of this as being the reason for the termination of the temporary
licence by the respondent as there are no corroborative evidence to make such a
finding.
[21] This court's concern and consideration is only attributed to the fact that the
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premature termination of the temporary licence was made on the basis of the
rejection of the change of use whereas no such condition was ever a condition for
the temporary licence to remain in force. The failure to obtain a change of use
would and should only determine that a permanent licence is not granted to the
applicants rather than providing a reason or ammunition for a premature
termination of the valid temporary licence that has already been granted and yet
to reach its expiry period which still has six months to continue.
[22] It is also most pertinent to note that 17 technical departments of the state
government have not objected to the change of use applied for yet the change of
use application was however rejected without any fathomable reason. The
464 All Malaysia Reports [2018] 1 AMR
[23] From the affidavits filed, it is apparent that the applicants were never
accorded the right to be heard in view of the premature termination of the
5
temporary licence hence the principles of natural justice have been deprived
from the applicants. The Court of Appeal in Pembinaan Batu Jaya Sdn Bhd v
Pengarah Tanah dan Galian, Selangor & Anor [2016] AMEJ 0895; [2016] 5 CLJ 250
held:
10
[51] His Lordship went on to state:
[24] The respondent argues that there were actually two lists for the "projek
pemutihan tanpa lesen" with list 1 being hotels under the moratorium 20
programme and list 2 being hotels not under the moratorium programme and
the applicants herein were under list 2. This court finds this argument untenable
and misconceived as the existence of the so called two lists were never made
privy to the applicants when the temporary licence was granted to the applicants
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in perusing the relevant documents exhibited in the various affidavits.
[25] Even if there were really two lists then the applicants would belong to list 1
as in reference to the statement of YB Chow Kon Yeow pertaining to the
conditions for list 1, the applicants would have to submit the plan for change of 30
use before October 31, 2015 with the requirement to pay RM2,400 for the hotel
permit. The applicants actually complied to these conditions in reference to exh
A16 in afidavit jawapan (1) responden marked as encl 15 (application for change
of use made on August 13, 2015) and exh A of encl 4 (payment of RM2,400 being 35
made).
[26] The respondent depends heavily on the use of s 107(2) of the Local
Government Act 1976 and argues that the said section contains an all conquering
provision to validate the act of the respondent in revoking the temporary license 40
without providing a reason. The section states that:
Every licence or permit granted shall be subject to such conditions and restrictions
as the local authority may think fit and shall be revocable by the local authority at
any time without assigning any reason therefore.
[27] This court however is guided by the words of the venerable his Royal
Highness, the late Raja Azlan Shah CJ in the Federal Court case of Pengarah Tanah
dan Galian Wilayah Persekutuan v Sri Lempah Enterprise Sdn Bhd [1978] 1 MLJ 135 at
148 which rings most aptly and truly in this situation. It reads:
Datin Noorzaina binti Mat Zain & Anor v
Majlis Bandaraya Pulau Pinang
[2018] 1 AMR Azmi Abdullah JC 465
1 ... Every legal power must have legal limits, otherwise there is dictatorship. In
particular, it is a stringent requirement that a discretion should be exercised for a
proper purpose, and that it should not be exercised unreasonably.
In other words, every discretion cannot be free from legal restraint; where it is
5 wrongly exercised, it becomes the duty of the courts to intervene. The courts are
the only defence of the liberty of the subject against departmental aggression. In
these days when government departments and public authorities have such great
powers and influence, this is a most important safeguard for the ordinary citizen:
10 so that the courts can see that these great powers and influence are exercised in
accordance with law. I would once again emphasise what often has been said
before, that "public bodies must be compelled to observe the law and it is essential
that bureaucracy should be kept in its place" (per Oankwerts LJ in Bradbury v
15 London Borough of Enfield ...
[28] Given this most illuminating observation, this court is fully convinced that
the courts are fully entitled to scrutinise the events in this application for judicial
review as the courts are the last bastion to ensure the principles of fair play and
20 justice are observed in the administrative workings of the respondent.
[29] This court is further convinced that the effect of the failure to obtain the
change of use on the part of the applicants is merely, that the respondent would
25 be entitled to refuse an extension of the licence with the temporary licence dying
its natural death and not to terminate the temporary licence already obtained
before such licence reaches its expiry.
[32] The respondent further argues that the temporary licence was revoked due 1
the applicants breaching clause 11 of the permit conditions stated at paragraph 8
herein, in failing to obtain a change of use which is related to the character of the
building, which this court is not in concurrence with this argument. The
averment amounts to stating that the applicants were not deserving of being 5
granted the temporary licence in the first place hence this argument has no basis
as the applicants were actually granted the temporary licence by the authorities.
[33] Clause 11 pertains to applying for a change of use and it can never be
disputed that such an application was made hence the applicants have 10
conformed to the words "mengambil inisiatif" contained in clause 11. Clause 11
upon its reading, never imposed that a failure to obtain a change of use would
result in early termination of the temporary licence already granted.
15
[34] This court is definitely convinced that the applicants have a legitimate
expectation for the licence to run its course until the expiry on October 31, 2016
and the early termination was an unjustified act. In Sangka b Chuka & Anor v
Pentadbir Tanah Daerah Mersing, Johor & 5 Ors [2016] AMEJ 0109; [2016] 4 CLJ 585 20
it was held:
[85] This is not to mention the documentary evidence in the form of letters
authored by officials of the first and fourth respondents referred to earlier, clearly
giving rise to at the very least a legitimate expectation on the part of the applicants 25
that they would be consulted or afforded the opportunity to be heard. In Council
of Civil Service Unions v Minister for the Civil Service [1985] AC 374, Lord Fraser
identified two situations that could give rise to a legitimate expectation. First is
where there is an express promise by the relevant authority and secondly, where 30
there exists a regular practice that an applicant may reasonably expect would
continue. (p 37 (AMEJ); p 619 (CLJ))