[LR.

15-18-2010-III]

MALAYSIA IN THE HIGH COURT IN SABAH AND SARAWAK AT KUCHING LAND REFERENCE NO. 15-18-2008-III
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BETWEEN LEONG CHIN MIN AND

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OBJECTOR

SUPERINTENDENT OF LANDS & SURVEYS, KUCHING DIVISION

RESPONDENT

JUDGMENT
This is a Land Reference proceeding under section 56 of the Sarawak Land
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Code. The objector, Leong Chin Min was the whole share owner of the subject land which is known as Lot 2239 Block 17 Salak Land District. It is 1.967 hectare mixed zone land. It was acquired for the purpose of

construction of a road. The land was placed under section 48 declaration on 30th October 2003. Pursuant to the inquiry under section 51 of the Sarawak
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Land Code, the Superintendent awarded compensation of RM141,200 or RM10.35 per square metre (psm). The objector accepted the award under protest and hence this inquiry. Evidence of Objector Two witnesses testified for the objector; i.e. the objector himself and his

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valuer. The objector testified that he bought the subject land in March of 2002 for the sum of RM260,000 which works out to RM132,180.00 per hectare. The government acquired 1.3643 sq. metres of his land which he said was below the market price. He was told by his valuer that he had purchased the land below the market price which was around RM205,000.

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During cross-examination he was challenged whether he actually purchased

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the subject land at RM260,000. The objector offered to produce the sale and purchase agreement but the offer was not taken up by the counsel for respondent. Evidence of valuers
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The objector and respondent produced their respective valuation reports and their makers. The objectors valuer used the comparison method. She She

analysed six comparable sales in the area of the subject land.

determined that sale 1 (RM18.5 psm), sale 5 (RM20.5 psm) and sale 6 (RM18.5 psm) are closest to the subject land and therefore the most suitable
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comparable. She also opined that the purchase of price of the subject land at RM260,000 was below market price. After having made minor adjustments to the value of the comparable sales ranging from 2.5% to 10% in respect of date of sale, location, size, balance of leasehold term against the subject land, she calculated the market value of the subject land at RM20.5 psm.

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Surprisingly, the government valuer used four comparable sales which were transacted at almost half the market value of the comparable sales used by the objector's valuer. It is apparent that there have been numerous

transactions in the vicinity of the subject land and the valuers had no trouble in choosing comparable sales of high price or low price as the basis of their
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analysis. The government valuers four comparable sales ranged between RM4.37 psm (sale 2) to RM13.22 psm (sale 1). The other sales are RM5.91 psm (sale 3) and RM11.12 psm (sale 4). Incidentally, sale 1 which was used by the government valuer is the subject land and the transaction in question is the purchase of the land by the objector in March of 2002. After making

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adjustments for location, accessibility, size, shape, term, betterment, time factor, partial transaction against the subject land (sale 1), she concluded that the market value of the subject land is RM10.35 psm which roughly matches the award of the Superintendent. Compared to the objector's valuer, the
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government valuer made whopping adjustments which ranged from 1% to 40%. Issues I do not propose to discuss the familiar authorities on the market value and
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the approach to be taken in assessing compensation. These are laid out in sections 60 and 61 of the Sarawak Land Code and the cases of Nanyang Manufacturing Co v Collector Of Land Revenue, Johore [1954] MLJ 69, Pentadbir Tanah Daerah Petaling v Glenmarie Estate Ltd [1992] 1 MLJ 331, Ng Mui Mui v Indian Overseas Bank [1986] 1 MLJ 203, Collector Of

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Land Reveue, Kuantan v Noor Chahaya Binte Abdul Majid [1979] 1 MLJ 180 and Chuah Say Hai & Ors v Collector Of Land Revenue, Kuala Lumpur [1967] 2 MLJ 99. However, I shall briefly address several issues that arose in this case. Subject land as a comparable

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The first issue would be the use of the subject land as a comparable. During the trial, counsel for respondent challenged the objector that he did not purchase the subject land at the price of RM260,000. However, she did not take up his offer to produce the sale and purchase agreement. In her

submission, she took up this issue again. She said that in the absence of the
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sale and purchase agreement and the memorandum of transfer, there is no evidence of the said transaction. following two reasons. I shall dismiss this argument for the

My first reason is that the objector gave oral

evidence that he purchased the subject land at the said price. Oral evidence of this witness is relevant and admissible as he was a party to the transaction.
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As to the weight to be attached to his evidence, counsel for respondent did not shake his credibility as he was agreeable to produce the transaction documents. Counsel for respondent did not follow through with his offer.
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My other reason is this. The government valuer used the transaction referred to by the objector as a comparable. She is a valuer in the Lands and Surveys Department. It must be assumed that she has authority to access all relevant records of sales to assist her in her analysis. In the premises, it is odd that
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the counsel for respondent is questioning the authenticity of a transaction which has been used as a comparable by her own witness. Betterment Counsel for respondent submitted that the road that cut through the land in question would have increased the value of the land and that this is a factor

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to be considered under section 60 of the Sarawak Land Code. I agree with her but in the instant case, the land in question is a mixed zone land for agricultural use only. The road project ran through the middle of the almost rectangular land. The result is a moth eaten land for the objector. The northern portion is too small for even residential use. The southern portion

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is slightly bigger but well below one acre in size to be viable for agricultural use. The condition of usage is still agriculture. Therefore, there is very little betterment for the objector in spite of the road access. Counsel for

respondent submitted that the condition of usage could be converted to residential. However, it is matter of speculation whether the objector would
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succeed in getting his land usage condition changed. In any event this would entail considerable expense. Therefore, it is my opinion that the significant adjustment of 20% made by the government valuer is not justified. Opinion of Assessors The first assessor gave his opinion that the subject land was worth RM18.5

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psm. However, he gave no reason whatsoever for his opinion. As the court is not bound by the opinion of the assessors, I exercised my discretion not to give any weight to his opinion. The second assessor gave detailed reasons
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for his opinion. He had noticed that due to the numerous transactions in the vicinity of the subject land, similar lands had been sold at diverse prices. Therefore, he chose the best comparable from the objectors list of sales and the respondents list of sales for comparison with suitable adjustment. In
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respect of the government valuers list, he chose the subject land. I note that it has been said in a number of cases that the subject land is the best comparable. He made a 30% adjustment for severance in favour of the objector. In my view, this is very high adjustment as the southern part of the land, although may not be viable for agricultural purposes, may still have

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other uses. In my view, a 20% adjustment would have been reasonable. However the 30% adjustment for severance which I disagree is offset by the 10% adjustment in favour of the government in regard to betterment which in my view is not necessary. He also made a 5% adjustment for time of sale. After overall adjustment he opined that the subject land was worth RM16.65

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psm. In respect of the respondents valuers list of sales, he used sales 5 and 6. In my opinion, sale 5 is not suitable as it is very close to the Matang township. After adjustment to sale 6 for location and partial transfer, he arrived at a market value of RM15.75 psm. After comparing both sales, the 2nd Assessor chose the market value based on sale 1 which is the subject land

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valued at RM16.65 psm. In my opinion, sale 1 as the subject land is the best comparable as the parties valuers have chosen comparable sales with diverse prices. As I agree with the overall adjustment made by the 2nd Assessor, in my judgment, the compensation should have been based on RM16.65 psm. The total compensation for the acquired portion of the

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objectors land should have been RM227,155.95. As the Superintendant has paid RM141,200, the balance payable shall be RM85,955.95 on which 4% interest is payable from date of acquisition, i.e. 24th January 2006 until payment. In compliance with section 67(c) of the Land Code, as the amount claimed does not exceed the amount awarded by 20 per cent, I shall award
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costs to the objector. As the parties have agreed on the costs, I shall award the objector the agreed costs of RM20,000.

(RAVINTHRAN PARAMAGURU) Judicial Commissioner

Date of Delivery of Judgment: 5.1.2011

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Date of Hearing:

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4.3.2009 6.5.2009 23.7.2009 26.8.2009 14.5.2010 28.7.2010 29.10.2010 4.1.2011 Mr. Arthur Lee Messrs Arthur Lee, Lin & Co. Advocates Kuching Ms. Ivy Suli Untup State Legal Officer State Attorney General Chambers Kuching Mr. Terence Yap Wei Tzen Encik Azmi bin Abdul Latif

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For Objector:

For Respondent:
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Assessors:
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Notice:

This copy of the Court's Reasons for Judgment is subject to editorial revision.