Telok Sabang (Sabang) Bhd

- vs -

Malaysia

Judgment

Yusoff J

1. This suit arises from the occupation by the armed forces, of Telok Sabang sawmill at Telok Sabang, Samarahan, First Division, Sarawak, in 1970 claiming damages in consequence of a fire destroying the said sawmill.

2. It was not disputed that because of the security situation in the area that one platoon from the 11th Infantry of the Royal Military Forces occupied an empty shed belonging to the sawmill, on 23 February 1970, for the purpose of conducting a military operation in the area. It was also not disputed that at the time of such occupation the sawmill and the shed had been abandoned by the owners and their employees because of the curfew in the area. It was again not disputed that the platoon vacated and left the shed at about 4.00 o’clock in the morning of 28 May 1970 and that the fire broke out in the main building of the sawmill at about 11.00 o’clock in the morning of 29 May 1970. (Some 31 hours later).

3. The main issues in the claim are whether the armed forces and consequently the government by negligence caused the fire to the sawmill; whether the government is absolved from any liability in view of s 5 of the Emergency (Essential Powers) Ordinance 1969 read with s 6(2) of Government Proceedings Ordinance 1956; and the quantum of damages if they were so negligent and not absolved.

4. I will deal with s 5 of the Emergency (Essential Powers) Ordinance 1969 first, now referred to as the Ordinance.

5. It was argued by the Federal Counsel, on behalf of the government that this section provides absolute protection to public officers for any act done during an emergency for the purpose of maintaining order or public security so long the act was done in good faith and it was reasonably necessary for the purpose intended.

   The relevant portion of s 5 of the Ordinance provides:

   No suit, prosecution or other legal proceeding shall lie in any court against any public officer either personally or in his official capacity for or on account of or in respect of any act ordered or done by him or purported to have been ordered or done by him during the emergency period for the purpose of maintaining order or public security or of carrying into effect any regulation, order, rule, by-law, direction or notice made or issued under this Ordinance,... Provided that the act of such officer or person was done in good faith and in a reasonable belief that it was necessary for the purpose intended to be served thereby.

6. This section of the Ordinance no doubt, gives indemnity to public officers for the purposes intended therein during an emergency. That the whole country at the time of the incident was in a state of emergency seemed to be an accepted fact by virtue of the proclamations, PU(A) 146 and 148 of 1969 — see Government of Malaysia v Mahan Singh  [1975] 2 MLJ 155 and Johnson Tan Han Seng v Public Prosecutor  [1977] 2 MLJ 66 and this emergency is in law still existing. But whether an act of expropriation of private property without paying compensation by the Armed Forces is intended to be indemnified by the section of the Ordinance, is to my mind doubtful. Indeed if it were so, it would contravene Article 13 of Federal Constitution on the rights to compensation when private property is so acquired.

7. By construing s 8 of the Ordinance which provides that the powers conferred by the Ordinance were to be in addition to and not in substitution for other powers conferred under other laws, it would seem that this indemnity is not without limitation beside those referred to in the proviso. One of these other laws is s 53 of Internal Security Act, 1969, which provides for taking possession of lands or buildings by the Minister in the interest of public security and s 68 which provides for assessment for payment of compensation for such properties taken into possession.

8. It is to be noted that the curfew imposed in the area at the time was in exercise of powers under Regulation 13A of the Preservation of Public Security Regulations 1963. Such be the case, regs 19(1) and 40 are also applicable on taking of possession of lands and buildings within the curfew area.

9. With these in view, I would hold that the indemnity provided in s 5 of the Ordinance does not cover the act of taking possession and occupation of the shed belonging to the sawmill by the armed forces in the present case. Abdul Razak J’s decision in Zahrah Hussin v Government of Malaysia  [1978] 2 MLJ 63 is distinguishable on different facts of the case.

10. The next issue is whether the armed forces were negligent when the fire broke out at the sawmill. In this issue the facts are clear that the fire occurred 31 hours after the armed forces had vacated the shed which they had earlier occupied.

11. The evidence shows that the only inflammable materials brought by the soldiers during their occupation of the shed were small-packed stoves (Exh D1) which were provided with low flame fuel lasting eight hours for each use. The soldiers had done their last cooking at 5.30pm on 27 May 1970. They went to bed by 7.00am except for the sentries, and by 4.00am the following day (28 May 1970) they vacated the shed. There was a lapse of 10½ hours and in my opinion if there had been any fire started by cooking the previous day it would have been apparently long before they vacated the shed. This is taking into consideration that the fire could possibly be started by any spilled fuel on the sawdust scattered around the shed, at the time.

12. PW2 said that he first saw the smoke coming out from the direction of his house or the sawmill at about 11.30am on 28 May 1970 while he was in his farm some distance away. He also said that on two earlier occasions he had seen smoke coming out from the compound of the sawmill, which turned out to be burnt sawdust. From these evidence, it would be pure deduction that if there had been slow fire started from the sawdust in the vicinity, assuming that it was caused by the soldiers before they left, PW2 would have seen the smoke even before he went to his farm on 28th morning.

13. Considering the intervening period between the time when the soldiers vacated the shed and the time the fire took place at the sawmill, I would consider that there were opportunities for other factors to occur which have caused the fire to the sawmill.

14. For these reasons I find that the defendant was not negligent as alleged. As counsel on behalf of the plaintiff has assured the court that this action was not maintained for trespassing by the armed forces on the sawmill, I would therefore dismiss this claim with costs.

Cases

Government of Malaysia v Mahan Singh [1975] 2 MLJ 155; Johnson Tan Han Seng v Public Prosecutor [1977] 2 MLJ 66; Zahrah Hussin v Government of Malaysia [1978] 2 MLJ 63

Legislations

Emergency (Essential Powers) Ordinance 1969: s.5, s.8

Government Proceedings Ordinance 1956: s.6(2)

Internal Security Act 1969: s.53

Preservation of Public Security Regulations 1963: Reg.13A

Representation

CE Lee for the plaintiffs.

Stanley Issac (Federal Counsel) for the defendant.