Originally published in the Sunday Star, Roger Tan calls for justice in the case of the most infamous land rob in recent history.
This is a heartrending story, a story about an incessant quest for justice by three generations of a Thai family.
It all happened on Dec 12, 1956 when a Thai of Chinese origin, Sie Guan Tjang @ Sie Hang Bok, purchased two pieces of land for investment – Lots 3606 and 3607 of Mukim 18 at Tanjung Bungah, Penang (“the said lands”).
During his lifetime, Sie visited Penang very often with his Thai wife, Boonsom Boonyanit, also known as Sun Yok Eng. They loved Penang and her people so much that they had intended to build their retirement home on the said lands. On Jan 18, 1967, the two lots of land were transferred to Boonsom by way of a memorandum of transfer (“Form 14A”).
Under section 81(3) of the National Land Code (Penang and Malacca Titles) Act 1963 (Act 518), Form 14A was then treated more or less as proof of ownership over the said lands. Section 92 of Act 518 also provides that pending the issuance of a final title, an advance certificate of title (“ACT”) would be issued. Since Jan 18, 1967, Boonsom had been at all times in possession of the Form 14A apart from faithfully paying all the quit rents and assessments due on the said lands.
Some time in June 1989, Boonsom’s eldest son, Phiensak Sosothikul, chanced upon an advertisement in a Thai newspaper, Thairat, dated June 11, 1989, which was inserted by a law firm from Penang, Messrs Khor, Ong & Co (“KOC”). The advertisement requested that any person who had any right to the said lands or any heir to Boonsom residing at a house No. 87, Cantonment Road, Penang, Malaysia to contact KOC. The court was later told that when Boonsom’s accountant did contact KOC, the latter could not give any useful information.
Boonsom then engaged the law firm, Messrs Lim Kean Siew & Co (“LKSC”) to conduct investigations which revealed that the said lands had been fraudulently transferred by an impostor claiming to be Boonsom to Adorna Properties Sdn Bhd, then known as Calget Sdn Bhd (“Adorna”) on May 24, 1989.
Boonsom then sued for the return of the said lands. The Penang High Court ruled in favour of Adorna on April 28, 1995. On appeal, the Court of Appeal in its judgment dated March 17, 1997 reversed the High Court’s decision. Adorna then appealed, and the Federal Court comprising Eusoff Chin, Wan Adnan Ismail and Abu Mansor Ali allowed Adorna’s appeal in its judgment dated Dec 13, 2000 and pronounced in open court on Dec 22, 2000 (“Adorna Judgment”). Sadly, Boonsom had already passed away on May 23, 2000.
Boonsom’s second son, Kobchai Sosothikul, being the representative of her estate, soldiered on and filed two separate motions to the Federal Court for review of the Adorna Judgment.
In the first attempt, Kobchai argued that when the Adorna Judgment was delivered, Eusoff Chin had already retired on Dec 19, 2000. Steve Shim, Haidar bin Mohd Noor and Mokhtar Abdullah dismissed this application in its judgment dated Feb 26, 2001.
In the second attempt, the Federal Court comprising P.S. Gill, Rahmah Hussein and Richard Malanjun ruled on Aug 27, 2004 that the Adorna Judgment was not patently wrong to have resulted in grave injustice.
On March 15, 2005, Kobchai sued the Penang land office for negligence and breach of statutory duty. On Jan 10, 2011, Judicial Commissioner Vazeer Alam Mydin held that the Penang land office was indeed negligent and in breach of statutory duty, but unfortunately the action had to be dismissed because it was time-barred as it was filed 36 months late under the Public Authorities Protection Act 1948.
Interestingly, a strong five-member bench of the Federal Court had finally decided on Jan 21, 2010 in Tan Yin Hong v Tan Sian Sang to reverse the Adorna Judgment as the error committed in the Adorna Judgment was, in the words of the then Chief Justice, Tun Zaki Tun Azmi, “so obvious and blatant”. But it came too late for the Boonsoms.
In fact, my committee and I had also held discussion with two successive Ministers of Natural Resources and Environment, Datuk Seri Azmi bin Khalid and Datuk Douglas Uggah Embas, on July 24, 2007 and Nov 6, 2008 respectively and later with the Attorney-General, Tan Sri Abdul Gani Patail with the view of amending section 340 of the National Land Code, 1965 to legislatively reverse the Adorna Judgment. But it now appears that the decision in Tan Ying Hong has rendered the proposed amendments unnecessary.
Sadly, there is no way the Boonsoms can ever recover the said lands. On Oct 7, 2004, Adorna sold the said lands to Diamaward (M) Sdn Bhd, a subsidiary of Hunza Properties Berhad, for RM13,220,000. Today, what is on the said lands is the Infinity Beachfront Condominium. Strata titles have been issued to the individual parcel owners.
In fact, in his judgment, Vazeer made a very strong observation: “In the beginning, I alluded to the fact that this is the sequel to a sad saga, which is now part of the annals of the nation’s legal history. The helplessness of the plaintiff in the face of the fraud perpetrated leading to the loss of the said lands is very evident.
“The apparent negligence and breach of statutory duty by the defendant and the complete inaction of the police in bringing the forger and fraudster to book is very disturbing indeed. After all, the fraudster was represented by a firm of solicitors in Penang in the transfer of the said land to Adorna and there would have been sufficient leads for investigations.”
After reading all the judgments related to this case, I too was troubled by the following facts revealed in there:
It follows that the police have a lot of explanation to do for being more than tardy in investigating the most infamous land forgery case in Malaysia.
On the part of the Penang state government, I was rather surprised that it had sought to raise the defence of limitation of time to avoid liability, especially when Lim Kit Siang himself has for many years described this case as “gross injustice”. Legally, the Penang government may be right to have done so, but morally it is hoped that the Penang government will now at least tender an apology to the Boonsoms even though the event took place under the previous administration.
I can only conclude that this is one injustice that stinks to high heavens! Unless this stink is removed, it will indelibly remain a huge dent on foreign investors’ confidence in our land offices, police investigations and the administration of justice.
Featured image is sourced from The Star Online.