Assignment 1 LAW245 latest PDF

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UNIVERSITI TEKNOLOGI MARA(PAHANG BRANCH)FACULTY OF ADMINISTRATIVE SCIENCE AND POLICYSTUDIESDIPLOMA IN PUBLIC ADMINISTRATION (AM1103A)LAW 245 MALAYSIAN LEGAL SYSTEMASSIGNMENT 1QUESTION 1 AND 3STUDENT’S NAME MATRIC NO1. Amir Nur Rashid bin Lizam 20192727562. Nur Athirah binti Ab Aziz 2019289702Lecture...

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UNIVERSITI TEKNOLOGI MARA (PAHANG BRANCH) FACULTY OF ADMINISTRATIVE SCIENCE AND POLICY STUDIES DIPLOMA IN PUBLIC ADMINISTRATION (AM1103A) LAW 245 MALAYSIAN LEGAL SYSTEM ASSIGNMENT 1 QUESTION 1 AND 3

1.

STUDENT’S NAME Amir Nur Rashid bin Lizam

MATRIC NO 2019272756

2.

Nur Athirah binti Ab Aziz

2019289702

Lecturer’s Name: Sir Izmi Izdiharuddin bin Che Jamaluddin Submission Date: 31st December 2020

Question 1 a) Abu went jungle trekking with his friend Ali. Several hours into the trekking, they discovered that they were lost, as they could not find their way out. They finally came into a clearing and saw a natural pool. Abu and Ali decided to cool off by taking a dip in the pool. Michael Loom who is a naturalist and owner of that particular land was furious when he saw both of them. Michael Loom wishes to take a civil action against them for trespassing. Can Michael Loom successfully do so? Support your answer with relevant cases. Issue 1. Whether Michael Loom can successfully take civil action against Abu and Ali for trespassing?

Conclusion 1. Michael Loom may be successful at taking civil action against Abu and Ali for trespassing due to the Defendant’s intention and interference with his land. ______________________________________________________________________________

Introduction Trespass to land is defined as an interference with the land and like the other forms of trespass, is actionable as there is no need to be actual damage towards the land in order for the interference to be deemed as trespass. Moreover, according to Norchaya Talib, trespass to land may also be described as unlawful interference with another person’s possession of land. The tort is committed only against the person with the possession of

the land in which that the conduct was made. Also, every entry without lawful justification by a person upon the land in the possession of another person may provide a cause of action for trespass by the latter (Plaintiff) against the former (Defendant). Trespass to land is not dependent towards the proof of damage the Defendant’s conduct had done towards the Plaintiff. To emphasize, a person is deemed to have trespassed if he had wrongfully entered onto the land of another, even if he had not caused damage toward the land that is owned by the other person. In the current case, the Defendant known as Abu and Ali had come upon the Plaintiff known as Michael Loom’s land without the latter’s prior knowledge nor consent for the former to approach with intent as well as the interference with the land that had also occurred. The Plaintiff wishes to take civil action against the Defendant for trespassing. The known and stated facts from the current case of Michael Loom v Abu and Ali are occupation, location, unlawful act, relationship, and causes. Michael Loom is a botanist, while Abu and Ali’s occupations were not stated, except for being jungle trekkers during the time of conduct. Regarding the location during the time of conduct, Abu and Ali came into a clearing that led them to a natural pool. The natural pool is owned by Michael Loom. Furthermore, there were elements of trespass to land when Abu and Ali voluntarily approached Michael Loom’s land without consent thus interfered with the natural pool. These were the unlawful acts that were conducted. As for relationship, Abu and Ali are friends, however, they have absolutely no relationship with Michael Loom. The cause is known to be of that Abu and Ali were lost before they came into a clearing in which had led them to Michael Loom’s natural pool. They decided to stop by and cool off there. The unknown or unstated facts from the current case of Michael Loom v Abu and Ali are suffered, time and witness. It is unclear whether Abu and Ali’s conduct had caused obvious damage towards Michael Loom’s natural pool. It is only known that they took a dip inside the pool after jungle

trekking. Regarding time, it is unclear about the time of conduct, except that it was several hours into Abu and Ali’s jungle trekking. As for witness, it is unknown whether there were people surrounding Abu and Ali during the time of conduct. ______________________________________________________________________________ Issue Whether Michael Loom can successfully take civil action against Abu and Ali for trespassing?

Law According to Halsbury’s Laws of Malaysia – Tort (Volume 13(2)), trespass to land refers to the entry without legal justification by one person onto a land of another person who has possession of the land. For the Defendant to be liable for trespass to land, the Defendant must have placed anything on it or in it. In the current case, the Defendants brought themselves inside the land that is owned by the Plaintiff. The Defendant’s conduct, in accordance with Article 39 of the Federal Constitution, had been known or had reason to be believed to have an effect due to its voluntarily execution towards the land owned by the Plaintiff. Trespass to land is applicable when the Plaintiff does not approve of the Defendant’s conduct which caused injuries to the Plaintiff’s land, based on the case of Terra Damansara Sdn Bhd v Nandex Development Sdn Bhd [2006] 6 MLJ 24, HC. The ingredients for trespass to land are intention, land, possession and interference. In the case of Smith v Stone (1647) Style 72 case, the Defendant was not liable for trespass to land because he was brought onto the Plaintiff’s land without his consent. In relation with the current case, the Defendant’s

conduct can be held liable for trespass as they had intended to bring themselves onto the Plaintiff’s land, with their own consent. Based on the Lavender v Betts [1942] 2 All ER 72, KB case, trespass to land includes destruction at the discomfort of the Plaintiff. Also, Section 44 of the National Land Code states that a person has the right to exclusive use and enjoyment towards the column of airspace above the surface of the land as much as the land below the surface. In relation to Michael Loom v Ali and Abu, Section 5 of the National Land Code provides that ‘land’ includes (b) the earth below the surface and all substances therein; and (e) land covered by water. Relatively, the Bulli Coal Mining Co v Osborne [1899] AC 351, PC case, the Defendant had performed unlawful interference with the subsoil as they were digging through from their land to the Plaintiff’s land, thus having destructed the land at the Plaintiff’s expense. In terms of possession, the Sidek bin Haji Muhamad v The Government of Perak [1982] 1 MLJ 313, FC case refers possession as a person having the exclusive right to exercise the right to control an entry to the land legally, thus supported by referring to the case of Haji Taib v Ismail [1971] 2 MJ 36 which states that the Plaintiff who owns the land can sue anyone without immediate right to recover his possession of property as long as he can prove that he has the upper hand or better right to possession than others. In Sin Heap Lee – Marubeni Sdn Bhd v Yip Shou San [2005] 1 MLJ 515, CA, it is stated that the owner has sufficient possession to sue in trespass if the land is vacant. Furthermore, the Wallis v Hands [1893] 2 Ch 75 case gives away that the owner has the right to sue in trespass if there was no other person lawfully in possession of the land at the time of trespass. Referring to the case of Alfred Templeton v Low Yat Holdings Sdn Bhd [1989] 2 MLJ 81, FC, a person is deemed a trespasser if he wrongfully dumps soil on another’s land. The dump of the soil equals to interference

with the Plaintiff’s land as it infringes with the right of the Plaintiff’s possession.

Application First off, the Defendant had intention to trespass by approaching the land owned by the Plaintiff. The Defendant had voluntarily decided to take a dip in the natural pool without the Plaintiff’s consent nor prior knowledge. In the current case of Michael Loom v Ali and Abu, the Defendant had brought themselves to the Plaintiff’s land without the latter’s consent. This supports the notion that the Defendant had the intention to trespass the natural pool owned by the Plaintiff. The Plaintiff, who is a botanist, needs the particular land for his enjoyment as he owns the natural pool and anything that is fixed onto it. The Defendant had caused discomfort towards the Plaintiff by dirtying the natural pool through physical contact with the water. Relatively, the Defendant had disturbed with the Plaintiff’s land which is the latter’s natural pool, that is filled with water and covered by water. Michael Loom as the Plaintiff possesses exclusive right towards the natural pool for his own enjoyment. More so, the Defendant who had been jungle trekking before voluntarily taking a dip in the Plaintiff’s natural pool may have possibly contaminated or disturbed the condition of the land through the direct contact between the dirt on the Defendant’s bodies and the Plaintiff’s property. This emphasizes that the Plaintiff’s exclusive enjoyment of his land has been disturbed by the Defendant’s conduct towards it. Michael Loom as the Plaintiff of this current case is not a squatter, hence he is recognized with the right of possession to perform such cause of action. The Plaintiff, Michael Loom, does own the particular land in question. Hence, this gives him the right to take civil action against the Defendant.

Furthermore, the right of property of land without possession is insufficient to support the Plaintiff’s action to sue the Defendant for trespass to land. Michael Loom, the Plaintiff, was and is the owner of the natural pool at the time of trespass performed by the Defendant Ali and Abu. Hence, the Plaintiff had sufficient possession to sue the Defendant in trespass as the land was not lawfully in possession by another person other than the Plaintiff. Furthermore, the Defendant had committed direct and physical interference towards the Plaintiff’s land. The condition for the Defendant’s conduct to become liable for interference is that the conduct itself must violate or infringe the Plaintiff’s possession of the land. In the current case of Michael Loom as the Plaintiff versus Ali and Abu as the Defendant, the latter had made direct and physical contact with the natural pool that is owned by the Plaintiff by taking a dip in it without the Plaintiff’s prior knowledge nor approval. The Plaintiff, who is also a botanist, studies various aspects of plants as well as the history and relationships of plants with their environments. The Plaintiff’s land happens to be a natural pool within his possession, and that the condition as well as the entirety of the land was interfered by the Defendant’s direct and physical contact. The Defendant of the current case had voluntarily inserted their bodies into the natural pool owned by the Plaintiff after going jungle trekking, in which the conduct would have contaminated the water inside and around the particular land. From this, the Defendant’s conduct poses as an interference towards the Plaintiff’s future enjoyment of his land as well as his botanical ventures.

Conclusion The court will find that the Defendant is liable for trespassing of the land owned by Plaintiff as the Defendant’s conduct has fulfilled all four ingredients of trespass to land (intention, land, possession, interference). Hence, the

Plaintiff is successful at taking civil action against the Defendant for trespassing.

b) Kunyit, a 10 year-old boy was cycling home from school when he was overtaken by Garam, a 12 year old school bully. Garam violently kicked Kunyit’s bicycle, causing him to lose his balance. Kunyit fell and broke his left leg. What wrong has Garam committed? Issue 1. Whether Garam has committed assault or battery; or both towards Kunyit?

Conclusion 1. It is possible that Garam has committed both assault and battery towards Kunyit due to the presence of force as well as reasonable apprehension for the former establishment, and because of causation as well as the absence of Kunyit’s consent for the latter establishment. ______________________________________________________________________________

Introduction Trespass to the person is defined as an intentional or voluntary conduct against the safety and freedom of a person by another person. Such tortious conduct is actionable in which the Plaintiff, the person whom the harm had been done onto, does not need to prove that the Defendant’s conduct had caused losses or injuries towards him. In other words, the Plaintiff only has to satisfy all ingredients of trespass to the person as a requirement to prove that his claim is actionable against the Defendant. Likely so, the court would only grant a small amount of compensation in the exception of the presence of actual loss transpired by trespass to land. There are several forms of trespass to the person; assault, battery, wrongful imprisonment and lastly,

other species that would emerge from the common law of trespass to the person. In the current case, the Defendant known as Garam had voluntarily approached the Plaintiff who is known as Kunyit on the latter’s way back home from school without his prior knowledge nor consent for the former’s presence. The Defendant had used force upon the Plaintiff’s bicycle thus caused the latter to fall and break his left leg. The Defendant’s tortious conduct against the Plaintiff may be liable to either assault or battery, or both. The stated thus known facts from the current case of Kunyit v Garam are occupation, age, location, time, unlawful act and suffered. The occupation of the Plaintiff and Defendant are students and they are schoolmates. The Defendant is apparently a school bully. In terms of age, the Plaintiff is ten years old while the Defendant is twelve years old. The location during the time of conduct was somewhere around Plaintiff’s way back home from school. The time of conduct was when the Plaintiff’s school session had ended. As for unlawful acts, there were elements of battery and assault when the Defendant had voluntarily approached the Plaintiff without his consent before kicking his bicycle, in which had caused him to fall and get injured. It is then stated that the Plaintiff had suffered from bone fracture, particularly his left leg after falling off his bicycle caused by Defendant’s violent kicking. The unstated or unknown facts from the current case of Kunyit v Garam are relationship, causes, witness, and size. In terms of relationship, it is unknown of the exact relationship between the Plaintiff and Defendant, other than being mere schoolmates. As for causes, it is unknown if the Plaintiff had provoked the Defendant, but very unlikely so, due to the Plaintiff’s younger age and the Defendant’s reputation of being a school bully. Furthermore, it is unclear whether there were people or witnesses surrounding the Plaintiff and the Defendant during the time of conduct. Regarding size, it is not stated if

the Defendant’s physique was bigger than the Plaintiff’s, but very likely so, due to former’s older age. ______________________________________________________________________________ Issue Whether Garam has committed assault towards Kunyit?

Law According to Article 5 clause (1) of the Federal Constitution, it is stated that no person shall be deprived of his life or personal liberty in accordance with the law. More so, the Defendant had committed an omission against the personal liberty of the Plaintiff. Furthermore, the case of Letang v Cooper [1985] 1 QB 232, CA supports the right to claim trespass to person by recognizing the principles of common law of trespass to the person based on the Federal Constitution’s Article 5 clause (1). In order to prove that the Defendant of the current case is guilty of assault, the court will be referring to Halsbury’s Laws of Malaysia – Tort (Volume 13(2)) for the definition of assault; which is described as an intentional act of violence to the other person. Thus, there occurs an assault with the presence of the threat of violence as well as the Defendant’s capability to inflict force on the Plaintiff. The threat must also be supported by the intention to conduct violence against the Plaintiff. The ingredients to justify the claim for assault are intention, force, capability and reasonable apprehension. In the case of Fagan v Commissioner of Metropolitan Police [1969] 1 QB 439, DC, though Mr Fagan was not held for assault, his conduct was found as a continual act of battery because of his reluctance to prevent his vehicle from making direct contact with the officer’s foot. His reluctance satisfied the ingredient of intention.

Referring to the case of Shalini P Shanmugam v Marni bte Anyim [2007] 4 MLJ 80, HC, it is proven that physical abuse is tantamount to assault as well as battery. Physical abuse is defined as an intentional act that can cause injury or trauma to another person through bodily contact as a form of force. Referring to the case of Stephen v Myers (1830) 4 C & P 349, the Defendant had threatened to hit the Plaintiff before advancing with his clenched fists towards the Plaintiff’s direction. Albeit having been stopped by a 3rd party before he could hit the Plaintiff, it was held that assault was established as he was seen capable enough to carry out his threat if he were not stopped by said another party. Also, in relation with the case of R v St George (1840) 9 C & P 483 , the person had pointed an unloaded gun at another person, in which the verdict had stated that it was an assault. Correspondent with the case of R v Kerr [1988] 1 NZLR 270, NZ CA in which if the person being threatened was aware of the threat, it would be decided that there was an assault. On the other hand, in order to prove that the Defendant of the current case’s conduct is liable for battery, the court will be referring to Halsbury’s Laws of Malaysia – Tort (Volume 13(2)) for the definition of battery; which is described as an act done by the Defendant that has directly; regardless of whether intentionally or negligently; caused physical contact with the Plaintiff without the latter’s consent. In the current case of Kunyit v Garam, the latter’s conduct towards the former was done with intention, physical contact thus without the consent of the former. The ingredients to justify the claim for battery are intention, contact, causation and without consent. Referring to the case of Letang v Cooper [1964] 2 AII ER 929, UK CA, the court had held that the Defendant’s conduct would had been considered as battery if it had come with the intention to harm the Plaintiff.

The use of instrument is also necessary, in accordance with the Roberts v Chief Constable of Kent [2008] EWCA Civ 1588, UK CA case where the Defendant had used an instrument to orchestrate indirect contact to cause harm towards the Plaintiff. Moreover, in the case of Wilson v Pringle [1986] 2 AII ER 440, UK CA, a schoolboy was injured when the bag he was carrying over his shoulder had been roughly pulled by another boy. To support the notion that the Plaintiff had suffered injury due to Defendant’s act of violence, the case of Wainwright v Home Office [2002] QB 1334, UK CA had justified that battery is present through making contact with the Plaintiff’s vehicle or object he was sitting on thus causing the Plaintiff to fall off of it. Referring to case of Dodwell v Burford (1669) 86 ER 703, the Defendant of said case had hit the Plaintiff’s horse when the Plaintiff was sitting on it. It had led to the Plaintiff falling off the horse before getting trampled by another horse, hence the Defendant’s conduct was held liable for battery. Also, the case of Gibbons v Pepper (1695) 2 Salk 637 supports that a person is liable for the establishment of battery when the contact that had caused harm towards another person was indeed under his control and knowledge. Referring to the case of Nash v Sheen [1953] CLY 3726, the Defendant’s conduct was held liable for battery due to the absence of consent from the Plaintiff, as the instrument used during the contact had caused the Plaintiff to develop comp...