SEPAKAN Penalti di dalam bola sepak sering memberikan kemenangan kepada pasukan penyerang yang diberi peluang menyepaknya. Namun terkadang kala tersasar walaupun yang menyepaknya bintang tersohor seperti Ronaldo.
Begitu juga yang berlaku dalam politik Sabah apabila Tan Sri Chong Kah Kiat diberi peluang melakukan sepakan penalti di Mahkamah Tinggi Kota Kinabalu di dalam perlawan kalah mati seperti kes Ma Tzu.
Sepakan Chong Kah Kiat gagal ditampan Datuk Seri Musa Aman sehingga tersasar ke Kuala Terengganu seperti Iklan Celcom apabila isu Ma Tzu menjadi bahan kempen besar-besaran untuk meraih 8,465 undi Cina yang akan menjadi penentu kepada Pilihanraya Kecil Kuala Terengganu.
Perlawanan tersebut terganggu atau diganggu oleh satu lagi perlawanan persahabatan di Mahkamah Rayuan Putrajaya berhubung Petisyen Pilihanraya Parlimen Pensiangan, namun anehnya keputusan rayuan Tan Sri Joseph Kurup terpaksa ditangguhkan kerana
demarkasi undang-undang membataskan Peguam Sabah berkhidmat di Semenanjung Malaysia disebabkan tidak menjadi ahli Bar Council!
Ironinya, Peguam Semenanjung pula boleh berkhidmat di Sabah secara 'Ad-Hoc'dan kenapa Mahkamah Rayuan bersidang di Putrajaya sedangkan undang-undang yang berkuatkuasa tidak membolehkan peguam dari Sabah mewakili anak guam mereka di Semenanjung?
Dalam permainan bola sepak, amalan ini dinamakan melengah-lengahkan permainan dengan menyimpan bola terlalu lama di kaki (menggoreng) kerana akhirnya Mahkamah Rayuan memutuskan untuk bersidang di Kota Kinabalu pada 19 Februari 2009 bagi memutuskan sama ada menerima atau menolak rayuan Kurup.
Agak menghairankan kenapa ada pihak yang cuba melakukan Media Black-Out sehingga majoriti editor menerima arahan lisan daripada 'Boss' agar tidak membuat liputan kes Ma Tzu kerana bimbang akan memberi kesan kepada pilihanraya Kecil Kuala Terengganu.
Bagi menjamin ketelusan media dan berita sampai kepada akar umbi, saya menyiarkan nota prosiding penuh Mahkamah pada 14 Januari 2009 kerana bimbang rakyat akan menghukum Barisan Nasional jika mereka tidak mendapat gambaran sebenar.
Soal permusuhan atau sengketa Chong Kah Kiat dengan Musa Aman ialah Sengketa peribadi dan tidak melibatkan pemimpin negara dan Barisan Nasional tidak wajar dihukum setelah mereka membaca nota prosiding bahawa Pihak Berkuasa Tempatan tidak pernah menyebelahi Musa Aman walaupun mereka tertakluk kepada arahan dan perintahnya.
Lebih menarik apabila Datuk bandar Kuala Terengganu, Mat Razali Kasim terpaksa meletakkan jawatan sebagai Pengurus Pilihanraya P 036 setelah Suruhanjaya Pilihan Raya (SPR) menerima aduan bahawa beliau berkempen untuk Barisan Nasional di kalangan kakitangan kerajaan. Saya turut menerima beberapa sms daripada rakan wartawan di Kuala Terengganu bahawa beberapa orang wartawan telah membuat laporan polis kerana kononnya diberikan RM300 setiap seorang di Pusat Media Kementerian Penerangan Kuala Terengganu agar membuat laporan yang memihak kepada Barisan Nasional.
LAPORAN...Wartawan Merdeka Review Chan Wei See and Chen Shaua Fui membuat laporan polis di Balai Polis Kuala Terengganu pada jam 6.45 petang kelmarin. Manakala gambar di sebelah Ong Boon Keong, daripada Mafrel, Chan Wei See, Chen Shaua Fui and Haris Ibrahim di Balai Polis.
Berikut adalah Nota Prosiding Mahkamah yang dicatat oleh Hakim Mahkamah Tinggi Kota Kinabalu Yew Jen Kie.
Kes: [K22-19-2008]
14th January 2009 at 9.30 a.m.
Continuation of trial.
Parties as before.
PW1 (Tan Sri Chong Kah Kiat) reaffirmed.
Continuation of examination in chief of PW1:
Haji Ansari: Are the presence of statue or 'Patung' by the roadside peculiar to Sabah only compared to the rest of the country?
CKK: I told the 1st defendant that Malaysia not only Sabah is know for its tolerance and religious structures as well as statues are found throughout the nation. I also told the 1st defendant that our pride as Malaysia can be seen even in all those
states, the Malay states with rulers, where various religious structure standing side by side. In fact, if I may be allowed to put on records, even in Sabah in the District of Tuaran where the State Minister for Local Government and Housing came from, we have mosque standing very near to Taoist pagoda and to Christian church.
Haji Ansari: Refer to page 37 PBD(1) exhibit P26, what does this photo show?
CK: This photo shows the District Mosque in Tuaran which is less than 300 meters away from the Taoist pagoda and right in the middle of Tuaran town. In between the District Mosque and the pagoda stands the Basil Christian Church.
Haji Ansari: To your knowledge, how tall is the pagoda?
CKK: Exactly 108 feet, the same height as our Statue.
Haji Ansari: Refer to page 42 PBD(1), during your service in he State and federal Government, do you recall anyone raising objection that the statue of the Sphinx is facing the mosque?
CKK: This statue was put up at Sunway Pyramid when I was still the Minister in the Federal Government. It looks directly across the mosque with the main road in between. There has never been any problem, then and now.
Haji Ansari: Are you aware of any objection on this location of the statue?
CKK: No.
Haji Ansari: May I have this document marked?
Attorney General: No objection.
Court: Item 29 at page 42 PBD(1): P39.
Haji Ansari: Yesterday you informed the Court that the main reason why the Statue was constructed was pursuant to a divine instruction. Besides this divine instruction, was there any other consideration that persuaded you to proceed with the project?
CKK: In fact in one of the written messages from the Goddess of the Sea it was said that with the Statue of the Goddess herself completed in Kudat, the economy, not only in Kudat, but the State will prosper. As the then Minister for Tourism I know that will be the case. Goddess of the Sea is one of the most popular deity in Taiwan and southern part of China from Fuchien down to Hainan, Hong Kong and Macau. These whole regions that I mentioned has a population of some 150 million. This Statue therefore will be another tourism icon for Sabah, Kudat in particular.
Haji Ansari: To your knowledge, based on the Government statistic and findings, which is the poorest district in Malaysia?
CKK: The northern region of Sabah which includes the District of Kudat has been known as one of the poorest.
Haji Ansari: What role do the Federal and State Ministry of Tourism play in promoting religious statue as tourist attraction in the country?
CKK: Very understanding, very supportive.
Haji Ansari: Refer to pages 39 (P28), 45 and 48 PBD(1). What do these photographs show?
CKK: They show the effort of the Federal Tourism Ministry in promoting the country as a multi-religious, multi-racial place for tourists to come for visit.
Haji Ansari: Apply for convenience at this time for the documents at pages 43 to 56 to be marked, which are not in dispute.
Court: Items 30 to 43 at pages 43 to 56 PBD(1) marked as P40 to P53 respectively.
Haji Ansari: From pages 43 untuil page 56 show various religious Statues and buildings, why are you exhibiting all these photographs as part of our bundle?
CKK: All these photos show first the high degree of tolerance for various religious structures to be put up in the country. Secondly, it also shows that they are even put up along high way or main road. Lastly, it also shows the respect and the high degree of tolerance shown by the Muslim community in the various states, including Kelantan.
Haji Ansari: Can you now refer to page 57 PBD(1), why did you include this item in your bundle?
CKK: This photo shows a mosque right in Kowloon in Hong Kong surrounded literally by Chinese shops and all types of business. There is a very powerful saying in Islam 'Laakum dinukum?which means 'Your religion is yours, and my religion is mine', This photo exemplifies the mutual respect taught in Islam.
Haji Ansari: May I have item 44 at page 57 to be marked, also an agreed document.
Court: Item 44 at page 57 of PBD(1): P54
Haji Ansari: Refer to page 58 of PBD(1). What is your objective in exhibiting this photo as part of your bundel?
CKK: It shows statue is not only put by non-Muslim. This is a statue of Ramses in Cairo, Egypt.
Haji Ansari: May I have item 45 pages 58 PBD(1) to be marked, also an agreed document.
Court: Item 45 page 58 of PBD(1): P55
Haji Ansari: After you received a copy of the letter from the State Mufti addressed to the 1st defendant, and extended to the 2nd defendant who went on to extend it to the 3rd and 4th defendants in the month of July 2006, what effort did you make to persuade the defendants to allow the Foundation to complete the project after you received this letter and until the end of the year?
CKK: Between that period the 1st defendant whenever I met him especially after the cabinet meeting no longer maintained that UMNO opposed. His new stand is that your Statue is near the mosque and I cannot allow it. That has been his stands after the Sipadan incident.
Haji Ansari: Were your successful to get the 1st defendant to change his mind in Year 2006.?
CKK: I did not notwithstanding the albums of photographs showing him the various religious statues in various states in Malaysia. But he did call me early the following year in February, that he would reconsider his decision to stop the Statue.
Haji Ansari: Before we go to 2007, I would like to refer to paragraphs 22 to 23 of your Statement of Claim at pages 6-7 of the Bundle of pleadings. Except for item (f) and (g), can you explain why you did not exhibit all these letters as part of your bundles?
CKK: These were all personal letters of mine trying to seek political support and understanding from my Federal Colleges, most of them were my former colleagues when I was there.
Haji Ansari: I would bring you now to January 2007. Was there anything special and out of ordinary in respect of Sipadan Island in January 2007?
CKK: In fact in late 2006 either in November or December, the State Government had agreed to privatize the management of Sipadan Island to a private group for a period of 25 years.
Haji Ansari: As a Minister of Tourism, were you consulted on this privatization of Sipadan and surrounding islands?
CKK: I was not consulted for the simple reason that even though Sabah parks which was under me was then managing the Island. The Island was under the control of a Joint Committee of the federal and the State Government.
Haji Ansari: Were you given any document by any of your officer in the Ministry in respect of the proposed privatization?
CKK: Yes, I have.
Haji Ansari: Do you know who are the owners of the group of company that is involved in the privatization proposal?
CKK: No, I did not.
Haji Ansari: Refer to Item 65 at pages 95 to 99 PBD(II) which are disputed. Can you confirm whether this is the document handed over to you and if so, by whom?
CKK: I confirm that this document was given to me by my then Permanent Secretary of my Ministry, Datuk Monica Chia.
Haji Ansari: Apply to mark this document but I believe my learned friend wish to object.
Attorney General (Datuk Roderick): The reason why we indicated that we are objecting to this document is because it is not a complete document, but part of the larger set of document. Secondly, I believe that it is a 'SULIT' document. This bundle came to me only last week, I have to check. Could we defer the marking of this document until this afternoon?
Haji Ansari: It is the case for the plaintiff and we have the discretion to use whatever document that is permissible under the law. Secondly, the author of this document is the 2nd defendant. Therefore when the original is in the possession of the adverse party we are allowed by law to tender just the copy of the same. Thirdly, we would like to cite the case of Takong Tabari vs Government of Sarawak and 3 others [1994] 3 AMR 52, the decision of the present Chief Justice of Sabah and Sarawak, who held and I quote.
Court: The Court will defer the ruling to at later stage. Item 65 at pages 95 to 99 PBD(II): ID56
Haji Ansari: To the best of your knowledge, was this privatization proposal of Sipadan and Ligitan Islands approved by the authority concerned?
CKK: It was rejected by the Joint Committee and subsequently also rejected by the Federal Cabinet.
Haji Ansari: Do you recall when was this proposal rejected by the Federal Cabinet?
CKK: Before April 2007 when the 1st defendant called me to his office and accused me of 'sabotaging' this privatization together with the then member of parliament for Semporna, whom I understand is still the member of parliament. There and then he told me that my letter of appeal I wrote to him rejected.
Haji Ansari: Do you recall what were the words he accused you for conspiring with the member of parliament for Semporna?
CKK: He used the description to describe the member of Semporna which I were allowed, I would rather not say it.
Haji Ansari: Can you give the name of the member Parliament for Semporna and his designation in the Federal Government in April 2007?
CKK: Datuk Seri Shafie Apdal. He was then the Minister for Domestic Trade and Consumers Affairs.
Haji Ansari: Refer to page 9 of bundle of pleadings, paragraph c. Whether the letter of appeal that you mentioned in your Statement of Claim is the letter found at pages 209 to 210 of PBD(ll)?
CKK: That is correct.
Haji Ansari: May I apply for this letter to be marked, believe there is not objection.
Attorney General (Datuk Roderick): No objection.
Court: Letter of appeal at page 209-210 of PBD(ll).P57.
Haji Ansari: Can you recall the words the 1st defendant used when he told you that your appeal is rejected?
CKK: I do not want to say other than him telling me that my appeal was rejected. It is very unpleasant.
Haji Ansari: Under paragraph 24 of your Statement of Claim, what was the reason why you tendered your resignation as a member of the Sabah State Cabinet on 13.4.200?
CKK: I did not see any point in staying in the 1st defendant's cabinet as I failed to rationalize with him if there was no basis in him stopping my project, which is a private project on private land and with private funding.
Court: Stand down until 11.20 a.m. Signed. Yew Jen Kie at 10.50 a.m
Court resumed at 11.35 a.m
Parties as before.
PW1 is reminded that he is still under oath.
Continuation of examination in chief.
Haji Ansari: After you resigned on 13.04.2007, it is pubic knowledge that the 1st defendant informed the media that you had
been offered an alternative site for the Statue. Did you or the Foundation receive any offer to relocate the Statue?
CKK: No, we did not. In fact, I also issued a statement to the press that I do not see any reason why I should be offered an alternative if I have done nothing wrong. And that if my project site is wrong then the Local Authority should have taken action against me and my Foundation.
Haji Ansari: Are you or the Foundation prepared to relocated the project or the site of the Statue?
CKK: Firstly, the Foundation was given a proper approval by the Local Authority. Secondly, not withstanding that, I did in fact went back to my Moral Uplifting Society and seek an instruction from the Goddess of the Sea and I got the message also written divine message that the site stays.
Haji Ansari: Did you in the month of April 2007 after your resignation take up the appeal for the work on the Statue to recommence besides the Chief Minster?
CKK: I met the Prime Minister and the Deputy Prime Minister in the same month that I resigned my post in the State Cabinet.
Haji Ansari: What were their response to or appeal?
CKK: I presented to both the Prime Minster and the Deputy Prime Minister all the photos that I have, those that I gave to the Chief Minister, as well as all the relevant documents including the letter of approval from the Kudat Town board. Both the
Prime Minister and the Deputy Prime Minister were very understanding and told me that they would advise the Chief Minister to hands off with regard to my Statue project.
Haji Ansari: Refer to pages 105 to 106 part of item 67 of PBD(ll). When was this letter brought to or attention?
CKK: This was brought to my attention by my UMNO colleagues in Kudat in the same month in May 2007.
Haji Ansari: What was your reaction when this was shown to you?
CKK: A desperate attempt to politicize my project which to me has no bearing in terms of religion and race other than a very private project.
Haji Ansari: What did you do after you saw this letter?
CKK: I immediately telephoned to very senior Sabah State UMNO leaders, Datuk Seri Salleh Tun Said and Datuk Abdul Ghapur Salleh, who requested me to fax to them this circular issued by the State UMNO Secretary. They then happened to be in Kuala Lumpur.
Haji Ansari: Did you comply with their request?
CKK: I did send a fax letter to Datuk Abdul Ghapur Salleh.
Haji Ansari:Refer to pages 100 to 102 of PBD(ll), disputed document, who is the author and signatory fo this letter?
CKK: That is my letter written by me and faxed to Datuk Abdul Ghapur Salleh.
Haji Ansari: Apply to tender the letter through this witness who is the maker.
Datuk Roderick: No objection.
Court: Item 66 at page 100-101 of PBD(ll): P58.
Haji Ansari: Did anything positive come out of this letter P58 in so far as the project is concerned?
CKK: After several months in fact on 14th November 2007, I was called up by the Prime Minister to his office in Kuala Lumpur and was told of the good news that he had asked the Chief Minister to allow me to proceed with my Statue project. And also had asked the Chief Minister to withdraw the letter written by the State Mufti. That as on 14th November 2007.
Haji Ansari: After meeting with the Prime Minister on 14th November 2007, what happened on the next day 15th November 2007?
CKK: I came back from Kuala Lumpur to Kota Kinabalu on 15th November 2007 and was told that very afternoon by the Executive Secretary of Kudat Town Board, Encik Ariff Abdullah that he had received instruction to cancel the approval given to the Foundation.
Haji Ansari: Did he mention who gave that instruction?
CKK: He went to may house that very afternoon. He cried before me. He told me that he was summoned to a meeting chaired by the Honorable State Attorney General with other officials of the State Government.
Haji Ansari: Did he mention anything else?
CKK: He told me he did not know what to do. He showed me a draft letter that he was instructed to adopt. I advised him as an officer he would have to follow.
Haji Ansari: Did you or Foundation receive any letter from Ariff revoking the approval given by the 4th Defendant?
CKK: My consultant received a letter of revocation dated 15th November 2007. I was given a copy of the letter of revocation.
Haji Ansari: Turn to page 27 Item 14 PBD(1), not disputed except to the truth of the contents., Is this the letter that you mentioned?
CKK: Yes.
Mr Ansari: Item 14 at page 27 PBD(1):P59.
Haji Ansari: Did you receive another letter from the same officer of the 4th defedant in the following year n the same subject matter i.e. the approval and revocation of the project?
CKK: Yes, I did.
Haji Ansari: Can you refer to the next page at page 28 Item 15 PBD(1), whether this was the letter you received from the same officer?
CKK: Yes, this letter was personally handed to me by Encik Ariff Abdullah. In handing me this letter, he told me that was the month he was leaving office and he wanted me to have that letter that he told me he wrote personally.
Haji Ansari: Tender the letter as ID as we will be calling the maker.
Court: Item 15 at page 28 PBD(1): ID60
Haji Ansari: Besides writing to Datuk Ghapur and meeting up with the Prime Minister, did you do anything else in respect of the letter at page 195-106 of PBD(ll)?
CKK: I lodged a police report against the 1st defendant as Chief Minister and Head of UMNO Sabah as well as the Secretary of UMNO Sabah. I also forwarded my police report to the Prime Minister, the Deputy Prime Minister with three newspaper cuttings.
Haji Ansari: Refer to Item 67 at pages 102 until 110 PBD(ll), what are these documents?
CKK: That is the police report that I lodged together with all the supporting documents.
Haji Ansari: Apply to have these documents marked, admitted existence but not the contents.
Datuk Roderick: No dispute as toe existence but no admission to the content.
Court: Item 67 at pages 102 to 110 PBD(11): P61
Haji Ansari: The Consultant for the Foundation received the letter of revocation i.e. P59 on 15th November 2007. This letter mentioned non-compliance with section 15(2) of the Town & Country Planning Ordinance (Cap 141). After you receive this letter in the middle of November 2007, what action did you take on this letter?
CKK: I took that letter and flew back to Kuala Lumpur and met the Deputy Prime Minister. The Prime Minister then was in Singapore. I told the Deputy Prime Minister that the State Government had now withdrawn the approval on a new ground and I have no choice but to seek legal recourse.
Haji Ansari: What legal recourse did you take pursuant to the letter?
CKK: Under Section 16 of the Town and Country Planning Country Ordinance, an obligation to appeal to the Appeal Board which is to in existence. Hence on the advice of the lawyer, we took the matter to Court. Section 16 of the Ordinance requires me to act within 28 days to appeal to the Appeal Board, which does not exist.
Haji Ansari: Refer to Item 70 to 73 at pages 113 to 213 PBD(11). Can you confirm what are these documents?
CKK: This is the Originating Motion that I took out.
Haji Ansari: Apply for these documents to be marked, not disputed.
Court: Item 70 to 73 at pages 113 to 213 PBD(ll): P62 to P65 respectively.
Haji Ansari: After you have filed the Motion i.e. P62, did the Minister of Local Government and Housing issue a statement on the project?
CKK: Yes, he did trying to exculpate the State Mufti from this matter.
Haji Ansari: Refer to Item 68 at page 111 of PBD(ll), can you confirm either this is the statement you referred to?
CKK: Yes.
Haji Ansari: Can you read out the second and third paragraphs?
CKK: "Sementara tidak ada apa-apa surat bantahan daripada mana-mana pertubuhan temasuk dari Kudat, beliau berkata, bantahan Kerajaan negeri terhadap pembinaan patung itu adalah disebabkan sebarang fatwa yang didakwa dikeluarkan oleh Majlis Fatwa. Biar saya jelaskan. Perkara ini tidak ada kena mengena dengna sebarang fatwa. Selepas membuat kajian mendalam, kami dapati lokasi ini "tidak sesuai" katanya dalam kenyataan di sini, pada Sabtu."
Haji Ansari: Apply to have it marked, contents are not disputed.
Court: Item 111 at page 111 PBD(ll): P68.
Haji Ansari: The two paragraphs that you have read mentioned that there is no public objection, but it is an objection from the State Government on location. Before you left the Cabinet, was there any Cabinet decision that the location was not proper?
CKK: The State Cabinet has never discussed my project when I was there until I resigned on 13th April 2007.
Haji Ansari: Refer to a Memorandum from the Lands and Survey to the State Secretary at page 76 item 38 DBD. This letter in essence mentioned three requirements to be fulfilled, namely, (1) the re-zoning of the land; (2) conversion of the land and
(3) sub-division of the land. Would you like to reply to this document?
CKK: The little experience that I have in private legal practice, for as long as the zoning is in order, in any development in Sabah it is the established practice that the conversion and sub-division will come as we go along with the development of the land in question. It has never been a case that conversion and sub-division must take place before development can proceed.
Haji Ansari: Do you have anything in your bundle to prove that this is the situation and practice in Sabah?
CKK: Kudat Resort Hotel is the classic example.
Haji Ansari: Refer to pages 59 to 72 Items 46 to 52 PBD(1), what do these documents show?
CKK: A private application to Kudat Town Board to put up Kudat Resort Hotel with the land title attached.
Haji Ansari: Was TPM Consultant the same consultant engaged by the Foundation?
CKK: Yes.
Haji Ansari: Where is this hotel located?
CKK: It is adjoining the site of the Statue.
Haji Ansari: Refer page 60 which states the said land is demised herein expressly and only for the purpose of industrial (Fiberglass Factory). To your knowledge, was occupation certificate issued to the hotel?
CKK: Yes.
Haji Ansari: Do you have personal knowledge on this hotel development?
CKK: Yes. This was one of the project supported by me as the Minister for Tourism then.
Haji Ansari: Do you know why the final OC was issued four years later?
CKK: Because of one technical condition that was no fulfilled. That technical condition that was not fulfilled as the 100 buffet zone under the approved tourism zone, which subsequently the Town & Country Central Board decided to re-adjust the buffer zone. Whilst that readjustment was done, the Local Authority issued the full occupation certificate to the resort hotel.
Haji Ansari: Apply to mark Items 46, 47, 49 to 52 of PBD(1): P67 to P72 respectively.
Haji Ansari: Refer to page 73 item 53 PBD(1), can you explain to the Court to whom this letter was addressed and why you are using it?
CKK: This letter was issued by Kudat Town Board to Penuwasa Sdn. Bhd., that is the shipyard company and the donor of the Statue site. This letter is to remind the land owner that even though they are holding the land title that is specified for industrial land use, the authority had in Year 2001, 17th April, already rezone that land in question together with all the adjoining land from industrial to tourism use. The owner was given a period of ten years from 2001 to 2011 to have their existing operation as a shipyard. After that they have to look for appropriate land for their shipyard.
Haji Ansari: Apply to mark Item 53 PBD(1).
Court: Item 53 at page 73 PBD(1): P73.
Haji Ansari: Yesterday you mentioned and also in paragraph 14 of your Statement of Claim, thirteen craftsmen were supposed to come to assemble the Statue. You only have approval for eleven. Do you have the additional document to support the approval of more craftsmen in addition to the eleven?
CKK: Yes.
Haji Ansari: I have shown this document ot my learned friend who has kindly agreed to them. Apply to have them marked. The previous eleven approvals was marked P20.
Court: Approval for two craftsmen: P20(a-b).
Haji Ansari: You have mentioned in paragraph 29(f) at page 10 of BP, where did you get this information from?
CKK: From both the senior UMNO members, Datuk Seri Panglima Salleh bin Tun Said and Datuk Ghapur Salleh.
Haji Ansari: Would you like to add anything before we conclude the examination in chief?
CKK: No.
Haji Ansari: That is the end of our examination in chief.
Court: To 2.30 p.m
Datuk Roderick: I would require more time before I can cross-examine this witness. Serious allegation were made against the
1st defendant, I would need to take instruction.
Court: The cross-examination of PW1 can be deferred. The plaintiff can proceed to call other witnesses from outstation this afternoon.
Signed. Yew Jen Kie
Court resumed at 2.45 p
Parties as before.
PW2: Mohd Najib Bin Muntok (MNM)
Affirms and states in B.M
54 years old
District officer Kota Belud
Haji Ansari: Did you receive a subpoena to testify and toe produce document in court for this trial?
MNM: Yes, I did.
Haji Ansari: When did you serve Kudat District as Assistant District Officer?
MNM: From October 1999 until November 2006.
Haji Ansari: In your eight years stay in Kudat, how would you describe the inter-racial relationship of the various communities in Kudat town?
MNM: The inter-racial relationship is very good.
Haji Ansari: Did you hold any post in the Mosque Committee for Masjid As-Syakirin?
MNM: Yes, as Chairman.
Haji Ansari: When was that?
MNM: From 2003 to November 2006.
Haji Ansari: Did the Committee ever discuss putting up an objection to the construction of the Goddess of Mercy or Maju in Kudat sometime in April or May 2006?
MNM: No, the committee did not hold any discussion on this.
Haji Ansari: Was the site of the Statue located next or adjoining to the As-Syakirin Mosque?
MNM: It is not adjoining; it is about 700 meters away.
Haji Ansari: Refer to page 44 to DBD, according to this letter, the Mosque Committee has decide to object to the construction of the Goddess of Mercy which is next to the Mosque. Do you agree with the content of this letter?
MNM: I disagree.
Haji Ansari: Did this "Elly Kassim Bin Adin" hold any post in the Committee in May 2006.
MNM: Yes, as Assistant Secretary.
Haji Ansari: Does the Mosque Committee have any letterhead? Is this the letterhead of the Mosque Committee?
MNM: We do not have any official letterhead.
Haji Ansari: Did you or anybody else form the Committee authorize Elly Kassim Bin Edin to write this letter?
MNM: None.
Haji Ansari: Did you Committee wrote a letter to Tan Sri Chong Kah Kiat sometimes in August 2006.
MNM: Yes.
Haji Ansari: You were ordered under the subpoena to produce a copy of the letter that you wrote to the plaintiff, do you have a copy of that letter with you?
MNM: I did bring along one copy.
Haji Ansari: Are you the author and the signatory of this letter?
MNM: Yes. [Witness shows the copy that he has brought along].
Datuk Roderick: No objection to this letter.
Court. Letter dated 5th August 2006. P74
Haji Ansari: We will make copies of the letter later.
Haji Ansari: Can you read out the whole letter including the people who signed?
MNM: [Read from P74].
Haji Ansari: Will the Statue obstruct the directions of prayers of those who pray in Masjid As-Syakirin?
MNM: In our view, it will not.
No Further question.
Cross-examination of PW2:
Datuk Roderick: Apply to mark the letter at page 44 of BDB as Defence ID.
Court: Letter at page 44 of DBD: IDD1.
Datuk Roderick: Shown Page 44 of DBD, who was the Setiausaha?
MNM: Haji Assan Bin Wijiarto.
Datuk Roderick: Prior to today were you aware of this letter?
MNM: No.
Datuk Roderick: Am I correct that today is the first time you saw this letter?
MNM: Yes.
Datuk Roderick: Shown P74. Can you explain why was letter issued by those persons named there?
MNM: We heard that there was objection to the construction of the Statue. So we wrote this letter to show that it was not the Committee who raised the objection.
Datuk Roderick: So there were other objections to the Statue but not by your Committee?
MNM: Not that I know of.
Datuk Roderick: If you were not aware of any other objection, then why the need to write P74?.
MNM: We heard there was an objection during Committee discussion.
Datuk Roderick: Did the plaintiff request you to write this letter?
MNM: No.
Datuk Roderick: Why was P74 addressed to Tan Sri Chong Kah Kiat?
MNM: We know that Tan Sri Chong ws the one who constructed the Statue.
Datuk Roderick: Prior to the issuance of P74, was there any discussion in the Committee?
MNM: Yes. That was what we discussed in the Committee.
Datuk Roderick: Was Elly Kassim Bin Edin a signatory to P74.
MNM: No.
No further question.
Haji Ansari: No re-examination. May I ask for the witness to be released.
Haji Ansari: Before I proceed I would like to know whether my learned friend has any objection to the presence of witnesses in Court.
Datuk Roderick: I do not mind.
Haji Ansari: We confirm that we have no objection to the presence of the defendants?witnesses in Court.
PW 3: Sebastian Lim (SL)
Affirms and states in English
52 years old
District officer Kudat
Haji Ansari: When did you assume duty as District Officer of Kudat?
SL: 8th June 2001.
Haji Ansari: What is your position in Kudat Town Board?
SL: I am a commissioner of the Town Board.
Haji Ansari: To the best of your knowledge and experience, when the 4th defendant received development plan for approval, what
do you do with those plans.
SL: I am the chairman of the Building Plan And Town Planning Sub-Committee. Our terms of reference is to approve or reject or to require amendments to the application. Normally the agenda is prepared by the secretariat. We proceed item by me. If there is no objection from the members in the committee, we would then the approval in principle subject to compliance of any technical requirement of the Technical Department.
Haji Ansari: Based on your experience until Year 2006, does the 4th Defendant send the plan to the Central Town and Country Planning Board?
SL: It normally depends on the advice of Town & Country Planning Department.
Haji Ansari: Refer to P6 at pages 6 to 9 of PBD(1). Have you seen this document before?
SL: I have just seen it.
Haji Ansari: This is an approval by your committee pursuant to meeting on 25th October 2005. Do you recall being present at
the meeting to decide the application to construct the Goddess of Mercy Statue in Kudat?
SL: Yes, I did.
Haji Ansari: Did the Town and Country Planning Department during that meeting advise you to refer this development plan to
the Central Board for approval?
SL: No.
Haji Ansari: Were there instances in the past in which you were advised to refer matters to the Central Board by the
Department of Town and Country planning.
SL: Yes.
Haji Ansari: Do you remember being ordered or asked to attend a meeting on 15 November 2007 at the office of State Attorney
General?
SL: I am not so sure who invited me but I attended the meeting.
Haji Ansari: Was there anyone else besides you that was called to the meeting from Kudat?
SL: Encik Ariff and I
Haji Ansari: Who chaired the meeting 15 November 2007 at the SAGæ¯ office?
SL: The State Attorney General.
Haji Ansari: Is he in Court?
SL: Yes.
Haji Ansari: Do you remember who else attended the meeting beside the Honorable SAG, Ariff and yourself.
SL: One of AG'S staff, Director of Lands and Surveys Encik Osman Jamal, Encik Mosshidi the director of Town and Country
Planning, the 3rd defendant was there but he came late, another officer from the Town and Country Planning Department, I cannot remember his name.
Haji Ansari: Can you briefly describe what transpired during that meeting?
SL: We ere briefed about the project. Accordingly to the chairman i.e. the SAG, we had not complied with section 15 of the Town and Country Planning Ordinance. The Executive Officer of Kudat Town Board was asked to sign a letter to withdraw the approval.
Haji Ansari: Who was the person who asked Ariff to sign the letter?
SL: The chairman i.e. the AG.
Haji Ansari: What happened next?
SL: I understand that Ariff brought back the letter and to type on the letterhead of the Kudat Town Board.
Haji Ansari: Did you or Encik Ariff raise any question or objection to the instruction?
SL: We did not raise any objection. We just feel ?we were afraid that it would delay the future projects and also concerned about what would happened to the previous projects that we had approved.
Haji Ansari: Have you received the subpoena we issued?
SL: Yes.
Haji Ansari: We have also asked you to bring the letter. Did you bring?
SL: Yes, I brought a letter.
Haji Ansari: Who gave you this letter?
SL: The original letter was given to Encik Ariff.
Haji Ansari: Who gave the original of this letter to Encik Ariff?
SL: I cannot recall, it was one of the staffs from AG Chambers.
Haji Ansari: I am applying for that letter to be admitted and marked as an exhibit.
Datuk Roderick: No objection.
Court. Letter dated 7th November 2007; P75.
No further question
Court: Stand down till 4.15p.m
Mr Ansari: I have no objection. But I am of the view that is is not proper for the honourable SAG to cross-examine the
witness.
Signed Yew Jen Kie at 3.50 p.m.
Court resumed at 4.30 p.m.
Parties as before
Cross-examination of PW3 by Mr Hanafiah:
Hanafiah: Can you tell the Court what exactly is your role as chairman of the Committee?
SL: I chair the meeting and go by the agenda prepared by the secretary.
Hanafiah: Do you personally go through the submitted development plans or building plans?
SL: Yes, normally the plans will go round the table.
Hanafiah: Are you also responsible to set out any conditions as chairman in the Committee?
SL: No, I don't. I go according to the technical requirement set by the technical department.
Hanafiah: What do you mean by technical department?
SL: The are many technical department like Town and Country Planning Department, JKR, Bomba, Lands and Surveys, Drainage
and Irrigation Department, Sabah Electricity Board, Environmental Department and Environmental Protection Department, Water Works, and also the Town Board itself.
Hanafiah: Am I correct to say that these technical departments which you mentioned are the ones with the relevant expertise to set out the relevant conditions in approving a development plans and building plans.
SL: Yes.
Hanafiah: Refer to pages 6 of PBD(1) i.e part of P6. This letter was addressed to TPM Consultant Sdn. Bhd. Paragraph 2 clearly stated that the above proposed development has been approved and it also states that it is subject to compliance to the conditions set out by the technical departments, Am I correct to say that the following contents of this document are the feed backs and conditions given by the technical departments?
SL: Yes.
Hanafiah: It is also stated in paragraph 2 that the Project had been approved in the meeting held on 25 October 2005. Also refer to page 31 DBD, is this the extract of the minutes of the meeting held on 25 October 2005 you referred to earlier?
SL: Yes.
Hanafiah: Can you read out the contents of the minutes?
SL: "Diluluskan tertakluk mematuhi ulasan-ulasan Jabatan teknik."
Hanafiah: Do you confirm now that the same condition i.e. compliance to the conditions set out by the technical department is stated in both the documents referred to you earlier?
SL: I guess so because it is not prepared by me but by my secretariat.
Hanafiah: Who is your secretary?
SL: Encik Ariff Abdullah, Executive Officer is also the secretary.
Hanafiah: Wish to tender the document at page 31 of DBD.
Haji Ansari: This witness is not the maker, we will be calling Encik Ariff.
Court: Extract of Minutes of meeting held on 25 October 2005. IDD2.
Hanafiah: You said in examination in chief that you were not sure who invited you to the meeting. Can you clarify that?
SL: I tried to recall who called me to attend the meeting but I cannot.
Hanafiah: What was the main discussion during the meeting?
SL: on-compliance with section 15.
Hanafiah: The document that your brought to Court today i.e. P75, is this the letter which talked about the non-compliance with section 15 of the Town and Country Planning Ordinance?
SL: Yes.
Hanafiah: Can you recall how long was the meeting?
SL: It was short meeting but we waited a long time for it to start.
Hanafiah:`Did the meeting confirm that there was non-compliance with section 15 of the Town and Country Planning Ordinance?
SL: That was what the AG said.
Hanafiah: What else were discussed beside non-compliance in the meeting?
SL: That was the only topic being discussed.
Hanafiah: You said in examination in chief that there was a letter drafted by Mr Ariff, what is that letter about?
Haji Ansari: The question is wrong. The letter was drafted and given to Encik Ariff to sign.
Hanafiah: Can you recall what it was all about?
SL: It was all about section 15.
Hanafiah: Can you explain how was the atmosphere of the meeting?
SL: It was a friendly atmosphere.
Hanafiah: Do you recall whether anyone was being threatened or anything like that?
SL: No
Hanafiah: In respect of the non-compliance with section 15, do you recall whether anyone in the meeting made any objection to
the stance?
SL: No objection, we just raised our concerns.
No further question.
Hanafiah: You were asked in the cross-examination the atmosphere of the meeting. You had earlier testified under examination in chief that Encil Ariff was asked to sign the letter. In cross-examination you said it was a friendly atmosphere. In what friendly manner was the instruction given to Encik Ariff?
SL: Friendly means there was no shouting or argument. Ariff was director to sign.
No further question.
Court: Witness is released.
In view of the time, adjourned to Monday, 19th January 20098 at 9.30 a.m.
Signed. Yew Jen Kie at 5.00 p.m
14th January 2009.
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