Anwar or Mahathir? Malaysians don’t care

This letter was published in Malaysiakini

LETTER | I refer to the Malaysiakini’s news PKR stands by 'Harapan consensus' to back Anwar as PM, rejects Dr M's hat-trick bid.

What is the “Pakatan Harapan consensus”?

Is it to back Anwar Ibrahim as the prime minister? Or is the consensus to restore Malaysian voters’ mandate in the last general election, by unseating an illegitimate government who has no qualms to use all means currently to stay in power?


DAP and Amanah, both who are critical parts of the Harapan coalition have openly stated that PKR needs to work with Dr Mahathir Mohamad, who crucially has Warisan’s support to restore Malaysian voters’ mandate.

Both parties have also indicated that the option of Anwar as prime minister does not work, due to the lack of support from Warisan.

However, instead of acting in the best interest of Malaysians, PKR has unfortunately chosen to put its own interest above Malaysians’ interest as a whole by stomping its feet like a child, insisting that its president be made the prime minister.

PKR has also indicated that they will be prepared for a snap election despite knowing very well that a general election in this Covid-19 climate is the worst possible time for Malaysians to vote for a new government.

This is disappointing, to say the least. Because not only PKR has chosen to put its interest above the nation instead of working with its partners to restore Malaysians’ mandate, it has also chosen to prolong the stalemate and expressed its intention to drag Malaysians into another period of uncertainty unnecessarily, knowing very well that the country is going through its worst possible time in history.

Frankly, Malaysians are sick and tired of the Anwar and Mahathir debacle. Malaysians do not care who the next prime minister is.

All we care about is, how will Harapan consolidate and present a united front so that at the minimum, it could form a strong opposition to hold the current Muhyiddin Yassin government accountable to its recent actions and decisions until the next election.

In the best-case scenario, Malaysians would also like Pakatan Harapan Plus to unseat the current government so that Malaysians’ mandate could be restored and Harapan Plus can continue to fulfill its election manifesto.

But PKR does not care. And PKR does not want to listen. Not even to its own coalition partners. It does not matter to PKR that most Malaysians don’t care about politics at the moment, too.

By PKR choosing to continue behaving like a child, despite it not having the numbers nor support to back its proposition for Anwar to become the prime minister, PKR has chosen to give an illegitimate government more sweet time to consolidate their position, reward their supporters with appointments, as well as to figure out ways to exonerate corrupt politicians and related parties from being charged and tried to the full extent of the law.

And it will continue to happen, the current government will continue to do so to further strengthen their political and personal goals.

But PKR does not care. Not at least until Anwar becomes the prime minister, anyway.

Let us let PKR’s current action be recorded as a pivotal part of Malaysian history for everyone to remember.

When more corrupt politicians are released or exonerated from criminal charges, when government-linked companies reward fat unjustifiable contracts to selected politicians or related parties, Malaysians will remember this.

And point to PKR to remember that it was because of Anwar’s selfish ambition who refused to listen to his coalition partners, and has preferred to put his own self-interest above Malaysians.

Continuing the cause for multiracialism

This was my maiden speech made during the DAP Selangor State Convention 2015

For years, DAP has faced numerous and unprecedented challenges that no other parties in Malaysia has faced. One of which is the effective demonization by the evil Barisan Nasional government who controls the mainstream media against our party

In their continued & outdated divide and rule strategy, the Barisan Nasional government has effectively painted the DAP as a Chinese dominant party, out to take power from the Malays. This is even when despite the party’s best efforts, and clear evidences to the contrary that DAP do not just fight for a single race, but all races, UMNO has spewed these lies, and continue to repeat these lies as their means to cling on to power

As a result, these has impeded DAP’s efforts to attract more talents & members from non-conventional communities to join the party. In fact, even when talents such as Dyana Sofya or Sepura Othman joined us, who both believes in DAP’s cause to unite Malaysians, they have been attacked & vilified for betraying the their own community.

And we are trapped in this undeserving situation, where on one hand we are trying to attract talents from all communities to build a multiracial party to achieve our dreams in uniting Malaysia. But on the other hand, due to lies and propagandas by UMNO, talents shy away from DAP for fear of reprise from their own community. And this makes our tasks of achieving our dreams much harder.

So how do we break and get out of this? How do we continue to forge forward so that the distant dream will stop being a distant dream, and becomes a reality?

1.      Reaching out to urban voters

Selangor contains a large number of urban voters whom Barisan Nasional has abandoned. They are the ones who denied BN the popular vote in the last General Election. In addition, according to Department of Statistics, more than 7 million of the populations in Malaysia are between the age of 21 – 35. Young voters will make up almost half of the eligible voters in Malaysia. These are the tech savvy voters, who do not rely on traditional media for news source. And these groups of voters are disillusioned with the poor leadership of the ruling government.

If we can reach out to them, firstly to get more of them to register as voters, and at the same time, engage with them to canvass for support and recruit as members, these people will be our newest & best activists in forging a path for DAP.

2.      Recruiting & grooming new leaders from non-conventional communities, in particularly the Malays.

Rural voters are difficult to convince, especially when they have been relying on traditional media as their only source of information. Even at our years of best efforts, it took us some time to convince some of these rural voters to give DAP a vote of confidence.

However, we are seeing a change in this. The grooming of new and young leaders from across communities has started to help DAP to connect with the rural voters. If we can continue this more aggressively, these new & young leaders can help us to shed our image as a Chinese based party and convince the rural voters to vote for DAP.

In fact, Barisan Nasional’s recent mismanagement of the country, the 1MDB’s multi billon scandals, the toll hikes, GST implementation etc, has severely affected Malaysians across all communities, especially those who lives in the urban areas. Ask any man on the street, and you will not find anyone isn’t disillusioned with the current climate.

The wind of change has blown since year 2008, but it is not done just yet. It is actually easier now to convince the urban Malaysians to join our cause and become party members. And we must recognize this as an opportunity to reach out to them by offering DAP as a platform to voice up and speak against the ruling government.

So time has changed. Malaysia has changed, and other communities are beginning to see DAP as a party who does not just represent a single race, but all races as well. And only by attracting more urban non-Chinese talents into the party, where we can work together to convince the rural voters to vote for DAP.

Simply put, and I have to be direct in this, with the recruitment & grooming of the right Malay talents who believes in the party’s causes and values, it will make DAP’s work of convincing the rural communities much easier. Only by showing to all Malaysians that DAP is represented by talents in all communities, can we truly call ourselves a multiracial party.

Only then, with a common goal, values and principles can DAP truly unite Malaysians as a whole and not one where races are merely tolerant to each other, but where Malaysians of all races accepts & embraces each other with open arms as brothers and sisters.

Before I end today, I’d like to share a quote from Sdr. Lim Kit Siang, who wrote a letter to Dr.Chen Man Hin in 1969. He said:

“Malaysia’s survival as a united nation depends to a large extent on the will and stamina of our movement and cause for a multiracial Malaysia. If we remain firm and dedicated to the cause of multiracialism, we may play a critical role which decides if Malaysia splinters in a welter of racial bloodbath, or holds together as a unitedpeople and nation.

Our way ahead will be an ardous one, but when other movements in other ages, countries and climes can overcome even greater and more challenging problems, I do not see why we ourselves cannot have a good chance of success.

Therefore, it is our duty, the duty of every one of our members, branch, state and national leaders, elected representatives to march in the frontline of the struggle to spread the word of a multiracial Malaysia to Malaysians of all races, in both the urban and rural areas.

We cannot of course guarantee that the cause of multiracialism will triumph in Malaysia, but we can guarantee that if the cause of multiracialism fails, Malaysia shall perish!”

Therefore, ladies and gentlemen, if in the next two years, elected representatives and each one of us as delegates and members, who are leaders in your own right,  can recruit more members from all communities and groom them into future leaders for the party in rural based constituencies, we will make a great stride in shackling & unseating the Barisan Nasional government.

Let us not shirk from our responsibility and duty to our nation, ourselves & our children. Let us all reach out to people across all communities, and build a multiracial DAP for a better and united Malaysia.

Thank you.

With Gerakan Harapan Baru, PKR must take a stand

This article was published in The Malaysian Insider and Malay Mail Online.

By Low Teck Kuan

I think it is great news for Selangorians and Malaysians as a whole that Gerakan Harapan Baru has been formed by progressive leaders of PAS.

Although things has been looking gloomy for opposition parties since the demise of Pakatan Rakyat which had gained a lot of ground against Barisan Nasional since 2008, personally I think Malaysians have a lot to look forward to now that each political parties future position into the next general election is slowly taking shape. 

But before we speculate about the next general election which is still a few years ahead, let us discuss about Selangor and PKR’s current situation. This is relevant and important as just three days ago, Morib assemblyman Hasnul Baharuddin and Hulu Kelang assemblyman Saari Sungib, both of PAS, committed themselves to GHB.

Selangor State Assembly composition in June 2015

One of the most discussed topic when PAS had cut ties with DAP early last month, was on the position of the Selangor government led by PKR’s Mohamed Azmin Ali.

Back then, it was clear to all that despite Pakatan Rakyat ending, PAS leaders who held positions in Selangor had refused to quit the state government. This in return led to DAP pressuring Azmin to form a new government and exclude PAS representatives.

However, Azmin could not do so. Some would say that it was perhaps due to his gratitude towards PAS president Datuk Seri Abdul Hadi Awang who had supported him in favour of PKR president Datuk Seri Dr Wan Azizah Wan Ismail as menteri besar during the Selangor leadership crisis.

But taking a legal position, I think that it was because Azmin did not have a clear majority in the state assembly and that deterred him from taking any risks that would jeopardise PKR’s position in Selangor.

If Azmin, with PKR’s 13 state seats and DAP’s 15 seats, had declared that PAS will be excluded from the state government administration after the demise of Pakatan Rakyat last month, the coalition would have lost 15 seats that belonged to PAS.

Worst, PAS may even join hands with Umno, which has 12 seats and the independent Tan Sri Abdul Khalid Ibrahim who holds one state seat.

Simply put, Azmin’s DAP-PKR 28 seats in the state assembly will tie with the PAS-Umno-Independent’s 28 seats as well. This will result in a hung state assembly and constitutional crisis which can only be resolved via a state election.

Having a state election three years before its due date could cause some backlash from Selangor voters. In addition, it will also incur the wrath of the Selangor Sultan who had repeatedly demanded for stability in the state government.

Hence, breaking ties with PAS last month would have been unwise and a decision that was too risky to make. Unless and until PKR secures more seats in the state assembly, it would be best for them to maintain the status quo.

Current Selangor state assembly composition

Thankfully, the political situation has shifted dramatically over the past one month.

On July 23, 2015, it was widely reported that two PAS state assemblymen and one Member of Parliament had chosen to join the new GHB, a splinter group from PAS. GHB was formed by disgruntled progressive PAS leaders who disagreed with PAS’s directions since year 2013.

With GHB recruiting two new state assemblymen, PAS’s state seats can now be considered to have reduced to 13. And if GHB declares their vote of confidence for Azmin, together with DAP’s 15 seats, PKR will have a clear majority of 30 seats in the state assembly.

Even if PAS wishes to join hands with Umno and the independent Khalid, at best it will only have 26 seats. This would make it impossible for a PAS-Umno-independent state government to be formed.

Hence, the first thing PKR should do is to obtain an official declaration by GHB that it supports Azmin as the Selangor MB. By doing so, it will give them the certainty that it will be able to govern Selangor until the next general election.

Why Azmin should take this decision immediately

Now that PAS's Haron Din has come out with a statement, or rather as I see it, a threat against PKR that PAS would not hesitate to sever ties with it, I would strongly urge PKR to immediately cut ties with PAS and form a new state government with GHB and the principled DAP.

This is so because firstly, due to the current gloomy and frustrating political situation, it will provide supporters and those who are against the Barisan Nasional government a much needed boost of hope for Malaysia.

Secondly, with calls from many people calling for the opposition to get its act together, it answers the critics directly on how they intend to challenge Barisan Nasional in the next general election. By showing to the public that PKR intends to work with DAP and GHB instead of PAS that is aligned to Umno, it will give voters a clear alternative, and one which Malaysians desperately need to replace Barisan Nasional at both the state and federal levels.

Thirdly, it will allow the state government comprising DAP, PKR and GHB, and led by Azmin, to prove its credentials and leadership in managing Selangor to Malaysians.

More importantly, it will also instill confidence in Malaysians that this new coalition can administer the government harmoniously. Certainly, it will also be able to make a better case in replacing Barisan Nasional at the federal level.

Fourthly, by including GHB into its state administration, it will allow GHB to build its profile among the electorate before the next general election. As it would be foolish for PKR to contest the elections with the two-faced PAS, PKR should provide platforms for GHB to prove its credentials to the voters, in particular the Malay rural voters.

For example, by giving GHB the Islamic Affairs & Malay Customs Exco Portfolio, GHB will be able to prove its Islamic credentials and leadership in order to allow them to compete directly in Malay majority seats that are currently held by Umno or PAS.

Finally, this new political development will allow PKR and DAP to exclude PAS altogether in managing the state government for the next few years. It will also provide them ample time to make the necessary planning with GHB for the next general election.

PKR must take into consideration that the next general election is just a few years away. If it does not provide sufficient time for all parties to negotiate and finalise seat allocations and prepare for the next general election, even when Barisan Nasional is at its weakest, it will concede their best opportunity to conquer Putrajaya.

Hence, Azmin and PKR should cut ties with PAS and form a new alliance with DAP, GHB and any other like-minded political parties that share their common goals.

It will lose support from Malaysians as a whole if it continues to align itself with PAS who obviously supports Umno even under the shadow of the worst financial scandal to hit the country.

PKR has to take leadership and together with other parties, put an end to Barisan Nasional’s dominance in the next general election.

In Tony Tan Chee Chong, we have the new Lester Melanyi

This article was published in the Malay Mail Online

By Low Teck Kuan

Tony Tan Chee Chong, ex-DAP man and former personal assistant to Teresa Kok has come out with guns blazing claiming that Tony Pua, one of the staunchest critics of the 1MDB scandals should not be so happy as to demand for accountability from 1MDB just yet.

This is because under his possession, he has documentary proof that behind Tony Pua’s backyard he has amassed RM 3 millions of savings stashed overseas under the name of his wife.

Tony Tan further declared if Pua cannot declare his assets in a week, then he will publish documentary proof of Tony Pua’s allegedly RM 3 million in savings overseas.

But in Tony Tan’s haste to discredit the DAP’s star man down, obviously because Pua has been at the forefront of putting the Prime Minister and his government in check, he has misunderstood the reasoning behind not just Pua, but all other opposition members and NGOs demands in asking those who holds executive positions to declare their assets publicly.

Why asset declaration is necessary

Those who hold executive positions, whether they are elected into the law making body (State Assembly or Parliament) or not must declare their assets publicly simply because they are in a position where the responsibility of managing taxpayer’s monies are heavily entrusted onto their hand.

They are in the positions where they hold substantial powers to allocate the public’s resources, If abused, it will result in taxpayers monies going missing for personal and illegal gains. The MARA scandal, where properties in Australia were purchased by MARA (a government linked company) at an inflated price just so that kickbacks can be given back to MARA officials, is one fine example.

Now here begs the question, does Tony Pua hold any executive positions? Or is he appointed into any government linked companies backed with allocations from the federal government?  No.

Pua is simply an elected Member of Parliament, who only receives a fixed monthly allowances paid by the Parliament. Therefore, why does he who does not have any responsibility of managing taxpayers monies need to declare his assets?

Tony Tan should not confuse the responsibility to declare assets by the Prime Minister (who is the head of the executives and a Finance Minister), with those who does not have any responsibility in managing the country's resources. In his attacks against an MP, he either could not tell these differences or has a sinister agenda in trying to discredit Pua even when his credibility is in doubt.

Much like Lester Melanyi, the bankrupt who could only shoot off his mouth without substantiating his claims of tampered documents with evidences to the contrary, Tony Tan has a credibility issues as well.

Back in February 2014, accompanied by Ramesh Rao (the same guy who backed Lester Melanyi), Tan had previously lodged reports to the Malaysian Anti Corruption Commission twice accusing Teresa Kok of misappropriating party's funds. However, the MACC did not find any misappropriation at all. He also filed a case against her in court but lost.

If Tony Tan, perhaps like Lester Melanyi who "acts out of his conscience”, has time to question Pua and his innocent wife, he should instead direct his time and resources in seeking answers from the Prime Minister on the many unanswered allegations against him.

For starters, he should question on how and why 1MDB’s USD 700 million been deposited into Jho Low’s Singapore company Good Star Ltd back in September 2009? Until this date, 1MDB and PM Najib have not provided satisfactory answers to the public.

Gutter politics must be condemned

To also hear Tony Tan, dragging the families of Pua who is not involved in politics at all is disgusting to say the least. Its gutter politics, clearly out to demonise Pua and to draw an illogical perception that he and his families had abused his public office in enriching himself. Even when as a Member of Parliament, Pua merely receives a fixed monthly allowances!

Malaysians, by and large, are currently witnessing the dirtiest and most undignified political plays. As seen by all, it is orchestrated by Ramesh Rao (who is a staunch supporter of the Barisan Nasional government) and various unscrupulous parties against the critics of the biggest financial scandal in history.

This must be condemned. Not just because these constitute harassments against opposition members who are doing their level best to keep the government in check, but on grounds that Malaysians do not tolerate dirty politics and diversionary tactics designed to divert the our attentions away from the real issue at hand. That is, where has 1MDB’s unaccounted and missing funds gone to?

As the buck stops with the Prime Minister, Malaysians must therefore focus their attention solely on 1MDB and seek accountability from the man whose office holds the greatest responsibility of managing the country's vast but diminishing resources.

Quick comments: Lim Kit Siangs letter to Dr Chen Man Hin back in 1969

I'm reading Lim Kit Siangs letter to Dr Chen Man Hin when he was incarcerated for the first time under the ISA right after the May 13 1969 riot, and I am really amazed by his understanding of the political situation at that time despite his arrests, and his determination to play his part in rebuilding the nation his own way.

Til this date, the contents of his letter are still largely relevant to our current political situation. Read below:

"Malaysia's survival as a united nation depends to a large extent on the will and stamina of our movement and cause for multiracial Malaysia. If we remain firm and dedicated to the cause of multiracialism, we may play the role which decides whether Malaysia splinters in a welter of a racial bloodbath, or hold together as a united people and nation.

Our way ahead will be an ardous one, but when other movements, in other ages, countries and climes can overcome even greater and more challenging problems, I do not see why we ourselves cannot have a good chance of success. We cannot guarantee that the cause of multiracialism will triumph in Malaysia, but we can guarantee that if it fails, Malaysians shall perish !

It is our duty therefore to march in the frontline of struggle to spread the word of a multiracial Malaysia to Malaysians of all races, in both the urban and rural areas.

Let us not shirk from our responsibility and duty to our nation, ourselves, our children and children's children"

It's this reason why I still have good hopes for our country. And why I support DAP's political cause. No matter how bad the situation is, for as long as good people are in politics fighting for what is right, someday Malaysians will find light at the end of the dark tunnel.

I still have a long way to go before completing this book 😜 but I already consider this as one of my most inspiring book

P.S. Uncle Kit was only 28 years old when he wrote this letter !

Time for asset declaration by the PM

This article was published in Malaysiakini, The Malaysian Insider & the Malay Mail Online

By Low Teck Kuan

July 3rd marks one of the most embarrassing day for Malaysia. For the first time in our history, a sitting Prime Minister is accused of embezzlement and corruption where monies amounting to USD 700 million, or about RM 2.6 billion were directly banked into his personal accounts!

What's more disbelieving is the fact that this is our Prime Minister Dato' Sri Najib, who is also the son of our former Prime Minister Tun Abdul Razak. Tun Abdul Razak, throughout his tenure as the second Prime Minister had always preached for integrity as a public servant. He was not even willing to spend the taxpayer's monies to build a swimming pool in his official residences for his families.

Hence, to now hear that our sitting Prime Minister has pocketed billions, and with Wall Street Journal stating clearly that they stand by their report, it has not just represented a huge slap of shame on PM Najib personally, but to all Malaysians as well. In the next few days, our country will again gain international fame in the press all for the wrong reasons. 

The dust of MARA financial scandal has not even settled, and yet we are rocked with this biggest scandal of all times. This is on top of having to shoulder the ever increasing costs of living due to GST, higher petrol prices and (soon) toll hikes as well. To now hear that an international media claiming that PM Najib has pocketed billions of monies, is seriously one scandal too much

Instead of denying these extremely serious allegations outright and clearly, or threaten legal action and provide assurances to Malaysians that he will prove his innocence against these allegations immediately, Prime Minister Najib could only cry political conspiracy by his detractors against him.  This unfortunately answers nothing to these allegations nor provide assurances to the public.

On every Malaysians mind, we have these 3 most urgent and pertinent questions that requires immediate and substantiated answers:

1) Does the Prime Minister Najib owns personal bank accounts at Ambank ? If he does, what are the account numbers ? 

2) Are they "2112022011880",  "2112022011906" and "2112022009694" under his name of “Dato’Sri Mohd Najib Bin Hj Abd Razak” as alleged by WSJ and Sarawak Report?

3) Is it true that such vast amount of monies amounting to almost USD 700 million were transferred to these accounts ?

As these questions forms the crux of the allegations made by international press Wall Street Journal and Sarawak Report, the Prime Minister needs to take the initiative to dispel this misinformation by showing evidences to the contrary.

To restore confidence to Malaysians, PM Najib also have to declare his assets publicly with his banking details. The public has the right to know whether PM Najib indeed has bank accounts in Ambank. In addition, asset declaration has to include his families members as well so to clear these allegations and doubts for once and for all. 

As Prime Minister of Malaysia. The burden is on him now to dispel these allegations of bribery and corruption, Anything less will only further fuel or reinforce the perception that PM Najib has not just a lot to hide, but lots and lots of monies to hide as well. 

It is time for full accountability to Malaysians by the Prime Minister of Malaysia

The curious case of the Batu Pahat Mall

By Low Teck Kuan

Just two days after delivering a highly contentious decision in Dato’ Seri Anwar Ibrahim’s case, the Federal Court judges delivered a full judgment on the case of Dream Property Sdn Bhd v Atlas Housing Sdn Bhd, where both disputing parties had been locked in legal wrangles in the Court for almost ten years.

However, despite it being a lesser known case, this case has a much bigger impact to the public especially to property owners. Through this decision, any bona fide property owner who, during the course of concluding a sale and purchase transaction, allows the purchaser to enter into the property and carry out improvement works with the expectation that the purchaser will fulfill its payment obligations, may have to fork out more monies just to evict the purchaser in the event the transaction fell through and the purchaser refuses to leave the property.

Case background

For all Johor folks, this case is centered on the now famous Batu Pahat Mall, where the current landowner is Atlas Housing Sdn Bhd and the building owner being Dream Property Sdn Bhd owned by Tan Sri Tang Yeam Soon.

In year 2004, Atlas Housing entered into a sale and purchase agreement (SPA) to sell their 14.4 acres land to Dream Property at the price of RM 33.5 million to build the Batu Pahat Mall. However unlike most SPA, at the persuasion of Dream Property, Atlas Housing agreed to allow Dream Property to enter upon its land right after the 10% deposit had been paid to commence construction.

At the same time, as there were squatters and a primary school on the land, Atlas Housing was given 9 + 3 months to relocate them. Thereafter, there will be a joint inspection and handing over of the vacant possession of the land to Dream Property. The purchaser Dream Property is then given 4 + 2 months to pay the remaining 90% of the purchase price to conclude the transaction.

Despite Atlas Housing relocating both the squatters and the school on time, Dream Property had repeatedly failed to make good the balance purchase price even after reminders for payment and further extension were given in year 2006. The SPA was later automatically terminated and Atlas Housing proceeded to serve a notice to Dream Property to cease construction of the Batu Pahat Mall (which were only 50% constructed at that time). Atlas Housing also took the matter to the High Court to resolve the dispute.

However, instead of halting construction pending the resolution to their dispute, Dream Property rushed the construction and eventually completed the Mall 6 months later. After completing the construction, Dream Property even took a step further by creating third party rights in the Mall by selling part of the Mall to Pacific Hypermarket & Departmental Store Sdn Bhd, a subsidiary under The Store Group and it leasing the rest to tenants without the consents of the landowner. At this juncture, it is worth noting here that Pacific Hypermarket is related to Dream Property by virtue of having the same shareholders where Tan Sri Tang Yeam Soon are both Managing Director in The Store Group and Dream Property Sdn Bhd.

At the same time, Dream Property also challenged Atlas Housing’s claim at the High Court by disputing, amongst others, that the final date of payment was at a much later date. And when the matter was ordered to a full trial by the Federal Court two years later to determine the factual matrix of the case, the High Court in year 2011 decided for Atlas Housing. The High Court’s decisions were later affirmed by the Court of Appeal in year 2013.

The High Court and Court of Appeal’s decisions

The High Court found that Dream Property was indeed in breach of the SPA when it had failed to pay the balance purchase price on time. In addition, the High Court also found in evidence that Dream Property had acted in bad faith when it was served with a notice to cease construction. Instead of abiding by it, Dream Property had rushed the construction of the mall in order to ensure that the nature of the land is changed forever and thus making it difficult for Atlas Housing to get it returned to its original state. It was done mala fide, and undoubtly carried out to defeat Atlas Housing’s rights to its land and to ensure that it would not ever obtain repossession of its own property.

When the case was later appealed by Dream Property, the Court of Appeal affirmed the decision of the High Court. The appellate court further stated that the landowner Atlas Housing, does not have any obligations to file for an injunction in court to prevent Dream Property from continuing construction when dispute arose. Furthermore, there is no certainty that the court would have granted the injunction.

In addition, as the Power of Attorney granted to Dream Property by Atlas Housing only allowed Dream Property to enter into the land and commence construction, the Court of found that Dream Property had abused the Power of Attorney when it sold part of the Mall and leased the rest to third parties.

Both the High Court and Court of Appeal, after deciding that Dream Property had indeed acted in bad faith and breached the SPA, ordered that the land together with the fully functional Mall be returned to Atlas Housing, with Atlas Housing paying Dream Property all costs of constructing the Mall.

As Dream Property had took the risks to proceed with the construction despite there being a genuine dispute and Atlas Housing being the landowner at all times, the Court of Appeal decided that Dream Property is liable to the use and occupation of the land to the landlord and therefore it needs to account to all the profits it gained from the land to Atlas Housing.

Both Courts had ensured that the contract breaker Dream Property was not allowed to profit from its own breach. Apart from Atlas Housing forfeiting Dream Property’s 10% deposit under the SPA, Dream Property was only to be returned to its original financial position before it had entered into the SPA.

Unfortunately, what seemed to be a fair decision by both the High Court and the Court of Appeal was subsequently reversed by the Federal Court.

Federal Court’s decision

The Federal Court, despite completely agreeing that Dream Property was liable under the contract, unanimously reversed the decisions of both the lower Courts on the reliefs sought by Atlas Housing. In a 5-0 ruling led by the YA Tan Sri Raus Shariff, the Federal Court decided that Atlas Housing must pay for the market value of the Mall to the contract breaker Dream Property, minus the market value of the land without the Mall before the land can be returned to them.

Simply put, Atlas Housing as the landowner must pay for the value of improvement of the land despite Dream Property failing in their fundamental obligation as purchaser to pay the 90% balance purchase price! In addition, Dream Property is allowed to keep all the profits earned on Atlas Housing’s land without the need to account to the landowner even when the profits were made without the consent of the landowner.

The Federal Court justified this bizarre decision by relying mainly on the principle of unjust enrichment, and stated that it will be manifestly unjust for Atlas Housing to profit from Dream Property’s  “bona fide improvement and enhancement of the Land”. The Federal Court reasoned that Atlas Housing will be unjustly enriched as it did not obtain an injunction to stop Dream Property from constructing the Mall.

It further stated that Dream Property who had “lawfully constructed the Mall on the land” did not intend Atlas Housing to benefit from its effort, expertise and all at its own resources in establishing the Mall.

And as there is no defence available to extinguish or reduce Atlas’s liability to make restitution, it is only fair that Atlas Housing pays the current market value of the Mall excluding the market value of the land.

Erroneous judgment

This, without a doubt is a wrong decision as the Federal Court had not only failed to judicially appreciate the factual matrix of the case but also consider the commercial repercussions of this decision.

By ordering Atlas Housing to buy the Mall at market price, it is essentially allowing Dream Property who is the contract breaker to profit an amount to the tune of hundreds of millions in Ringgit when it had only paid RM 3.35 million as 10% of the purchase price.

The market value of the Mall is inextricably linked to the value of the land and its position in the geographical sense. It also factors on its future profits in the next 5 to 10 years (depending on negotiation) that a business owner would have made if he had not part with the business. Hence, by awarding market price of the Mall to be paid by Atlas Housing to Dream Property, the Federal Court had essentially forced Atlas Housing to pay a ridiculous sum of profits to Dream Property who had already profited tremendously on the land which it was never authorised to do so.

And what would the legal and public repercussions be? Firstly, it will allow future contract breakers to benefit from their wrongdoing. Secondly, it will also encourage irresponsible purchasers to take advantage of this legal loophole. As purchasers, if you managed to convince the landowner to allow you to enter into the property for improvement works first despite only paying 10% of the purchase price, you can comfortably sit and enjoy possession of the property even when you have not paid the balance purchase price.

This Federal Court decision will essentially allow contract breakers to possess the property until the owner pays them the value of improvement made on the property. Better, contract breakers can even sell or lease out part of the property without the authorisation of the landowner and keep these profits while the landowner take years of legal action just to evict them in the court of law!

As for property owners, they will also have the added responsibility to ensure that an injunction is filed against the purchasers if they ever took possession of their property, spent monies on them but refuses to pay the balance purchase price and leave. Serving a notice will clearly not be enough, as the Federal Court has decided that it is insufficient to prevent the purchasers from benefiting on your property.

Clearly, the Federal Court had failed to consider these pertinent consequences. How could the Federal Court not considered these possible repercussions? The Court had even failed to discuss the mala fide actions of Dream Property which were established through evidence in the High Court and highlighted by the Court of Appeal!

It was in evidence that Dream Property had rushed the construction of the mall despite there being genuine dispute to the land. It even took a step further by selling part of the Mall to 3^rd parties including one which is related to itself when it is not authorised to do so. The lack of consideration on these is perplexing to say the least.

Atlas Housing as the plaintiff to the case, had pleaded for the land to be returned after having Dream Property repeatedly failing to pay the balance purchase price. And to aid the Court in arriving at a just decision, even as a victim to the breach of contract, Atlas Housing had submitted to the Court that it was willing to pay for all construction costs to Dream Property even when it did not have to so. Atlas Housing was willing to return Dream Property to its original financial position to aid the Court in dispensing justice expeditiously and fairly.

Thus, in judicially failing to appreciate these facts, conducts and the motives of both parties equally, the Federal Court had unfortunately erred in deciding the relief for this case.