This is an appeal from the decision in the Magistrates 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 6x15 within lift

lobby area at the ground floor of Komtar Multi-Storey Car Park

Complex, Penang.

(2) A counter measuring approximately 6x21 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 and 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 and Building Act 1974 (the Act) was 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 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. (Emphasis added.)

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

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 writing permission of the

local authority. (Emphasis added.)

The penalty under s 70(13) of the Act for contravention of s 70(1) of the same is a fine not exceeding RM10,000 and shall also be liable to a further fine of RM250 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 the same is a fine not exceeding RM500 and shall also be liable to a further fine not exceeding RM100 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 section 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)