JUDGMENT

Hishamudin Yunus J:

On 22 May 1991 the Majlis Daerah Kuala Muda (the respondent/defendant), the local authority responsible for the administration of the town of Sungai Petani), carried out an enforcement operation to clear the roads and streets of the industrial area of Bakar Arang in Sungai Petani of obstructions. In the course of the operation, they seized and detained certain machinery and parts of machinery ("the property" or "the goods") belonging to the plaintiff which had been deposited on a road for about two weeks.

This is an appeal against the decision of the learned Session Court judge who had dismissed the appellant's/plaintiff's claim against the respondent/defendant ("the council"), for the unlawful detention of those property. The appellant had claimed for the return of those goods. The present suit is an action for the tort of conversion.

I had dismissed the appeal.

I find that the learned Sessions Court judge was correct in her finding of fact that the property were placed on a road and causing obstruction to the public. I agree with her finding of law that the road was a "public place". Section 48 of the Street, Drainage and Building Act 1974 (Act 133) ("the Act") defines "public place" as -

"public place" means any street, park, garden, promenade, fountain, traffic island or circus, playground, river bank, whether above or below high water mark, place of a public resort or any place to which the public has access. [emphasis added]

There is evidence that the road is a public road.

I also agree with her view that the defendant, as a local authority, was charged with the duty of removing those goods. For s. 46(3) of the Act provides:

46. (3)(a) The local authority may cause any such obstruction to be removed or may itself through its servants remove the same to a suitable place, there to remain at the risk of the owner or person offending and may detain the same until the expenses of removal and detention are paid.

I use the word "duty" here because although the words "may cause" are used in s. 46(3)(a), in my view, this provision of the Act, imposes a duty on the council rather then conferring on it a power.

At the time of their removal by the authority, the property were already there on the road for about two weeks.

After the seizure, the property were kept in the compound of the workshop of the council. The plaintiff never claimed them.

In my opinion, the act of the plaintiff in depositing their property on the road was clearly in contravention of s. 46(1)(d) of the Act. This provision states:

46. Obstruction.

(1) Any person who:

...

(d) deposits or causes to be deposited any goods, article or thing used for or in connection with his trade in any public place;

Shall be guilty of causing an obstruction ... [emphasis added]

I hold that there had been a contravention of the above provision because the plaintiff's first witness, PW1 (the owner of the factory), had said in evidence that the property that were deposited on the road were used in connection with his trade and were intended to be kept there only temporarily until such time when they would be taken to the factory (which was adjacent to the road) to be assembled.

The learned Sessions Court judge was of the opinion that there was obstruction of a public place by virtue of s. 46(1)(c). This provision reads:

46. (1) any person who -

....

(c) deposits or cause to be deposited any box, bale or package or merchandise, utensils, crockery, or other articles or thing in any public place for a longer time than is necessary for loading or unloading such merchandise or article;

shall be guilty of causing an obstruction ...

The learned counsel for the appellant, however, argued that the above para. (c) of sub-s. (1) does not apply because there was no evidence to show that the property were meant to be loaded or unloaded to or from a vehicle. I agree with learned counsel. But I must add that as the act of the plaintiff was caught by