Vincent Ng Kim Khoay JC:

This is an appeal from the decision in the Magistrate's Court, Georgetown, Pulau Pinang in respect of the following charge:

That you on 13 October 1987, did erect a building to wit:

(1) A drinks counter measuring approximately 6' x 15' O" within "Lift Lobby" area at the ground floor of Komtar Multi-Storey Car Park Complex, Penang.

(2) A counter measuring approximately 6' O" x 21' O" at the right side in front of the entrance to "Lift Lobby" area the ground floor of Komtar Multi-Storey Car Park Complex, Penang

without the prior written permission of the Majlis Perbandaran Pulau Pinang in contravention of s. 70 (1) of the Street, Drainage & Building Act 1974 and you have thereby committed an offence punishable under s. 70 (13) (c) of the said Act .

The appellant was convicted of the said charges and fined RM3,000 and the said two structures in question were ordered to be demolished within one year. The sole ground of appeal by the appellant is that the learned trial Magistrate ought to have held that the charge against the petitioner under s. 70 of the Street, Drainage & Building Act 1974 ("the Act") is bad in law and should have dismissed and acquitted the petitioner of the same; rather the learned trial Magistrate ought to have held that the proper section for the defendant to be charged for erecting the said counters is s. 79 of the Act .

At the hearing of the appeal it was conceded by the Counsel for the appellant that though the charge mentioned the subject matter as two counters, they were in fact two permanent shop-counter structures constructed at the lift lobby area of the ground floor of Komtar Multi-Storey Car Park Complex, Penang. Section 70 (1) and (2) of the Act states as follows:

(1) No person shall erect any building without the prior written permission of the local authority.

(2) Any person who intends to erect any building shall submit to the local authority such plans and specifications as may be required by any by-law under this Act.

Whereas s. 79 (1) of the Act states as follows:

(1) No person shall erect or cause or permit to be erected in any building any partition, compartment, gallery, loft, roof, ceiling or other structure without having the prior permission of the local authority.

The penalty under s. 70 (13) of the Act for contravention of s. 70 (1) of same is a fine not exceeding ten thousand ringgit and shall also be liable to a further fine of two hund- red and fifty ringgit for every day during which the offence is continued after conviction. The penalty under s. 79 (4) of the Act for contravention of s. 79 (1) of same is a fine not exceeding five hundred ringgit and shall also be liable to a further fine not exceeding one hundred ringgit for every day during which the offence is continued after conviction. It becomes pertinent for this Court to determine whether the said two permanent shop-counter structures erected at the ground floor of a then existing building known as Komtar Multiple Storey Car Complex, could be considered as erection of two "buildings" to bring it within the ambit of s. 70 (1) of the Act or could such erections be considered as mere "erections in a building" within the purview of s. 79 (1) of the Act .

The question for judicial determination would thus be whether s. 70 of the Act is intended by the

Legislature to apply only to cases which involve the construction of a whole or substantial portion of a building, as opposed to cases which involve only the erection of a structure or structures in or adjoining a building.

Section 70 (16) of the Act states as follows:

For the purposes of this section and of s. 75 a person shall be deemed to erect a building who -

(a) begins work ... in respect of a new building;

(b) adds to or alters any existing building in such a manner as to involve -

(i) new foundations; or

(ii) new or partly new or increased super-structure or roof on existing walls or existing foundatio