1.

1 TRESPASS TO PERSON

Trespass to person is an intentional tort involving direct interference with a person’s body
or liberty. There are three types of trespass to person: the torts of assault, battery and false
imprisonment. Lord Denning in the case of Letang v Cooper [1964]1 asserted, "When the injury
is not inflicted intentionally, but negligently, I would say the only cause of action is negligent
and not trespass. If it were a trespass, it would be actionable without proof of damage." The
defendant must have an intention at the time he committed trespass. Trespass must be (1) a
positive act as opposed to an omission, (2) have a direct effect on the plaintiff, and (3) actionable
per se, which means the plaintiff does not have to prove that he has suffered any injury or loss.2

For assault and battery, both actions can be tried under criminal law 3 as well as torts law.
Assault can be defined as an attempt or any direct threat made by the defendant which puts the
plaintiff in reasonable apprehension of immediate physical harm. On the other hand, battery
refers to the application of direct physical force to the plaintiff without his consent. Assault
commonly occurs before battery. However, there are several cases where the battery had been
committed without assault, such as a person being hit by another person from behind.

1.2 INTERFERENCE WITH GOODS

Trespass or interference with goods is an act of direct physical interference with goods in
the plaintiff's possession without lawful justification, whether by taking the goods from him or
damaging the goods without removing them. The plaintiff is not required to prove the actual
damages as it is also actionable per se.4Its purpose is to protect the plaintiff's interest to continue
to have possession of his property, to protect the physical condition of his property and to
maintain his right to the non-interference of his property in all aspects.

3.0 LEGAL ISSUES

3.1 TRESPASS TO PERSON: ASSAULT

3.1.1 Whether Adlina had committed assault on Manjeet.

3.1.2 Whether Laila had committed assault on Manjeet.

3.2 TRESPASS TO PERSON: BATTERY

3.2.1 Whether Manjeet had committed battery towards Adlina.

3.2.2 Whether Adlina had committed battery towards Laila.

3.2.3 Whether there is any defence available for Adlina.

3.3 INTERFERENCE WITH GOODS: TRESPASS TO GOODS

3.3.1 Whether Adlina can sue the joyriders under trespass to goods.

3.4 INTERFERENCE WITH GOODS: CONVERSION

3.4.1 Whether Carol had committed conversion on Adlina's goods.

3.4.2 Whether Carol has the right over Adlina’s goods as a finder.

3.4.3 Whether Danny had committed conversion on Adlina's goods.

3.4.4 Whether Eric had committed conversion on Adlina's goods.

3.4.5 Whether Adlina can claim her van from Eric.

4

4.0 ANSWER FOR 3.0

4.1 TRESPASS TO PERSON: ASSAULT

4.1.1 RULES

In order to establish the cause of action on the ground of assault, there are three elements
that need to be fulfilled. The first element to prove assault is an act consists of gesture or
preparation to commit battery or infliction of bodily harm. The plaintiff must prove that the
defendant had acted intentionally and caused the fear or apprehension of immediate violence or
unwanted contact. The intention to create such apprehension is necessary.5

This element is best illustrated in the case of Stephen v Myers,6 where the defendant made
a threatening gesture to the plaintiff by waving a clenched fist against him but was stopped by a
third party before reaching him. The court held that the defendant was liable as he was capable of
carrying out his threat if he had not been stopped by the others a mere few seconds just before he
hit the plaintiff. It was stated that a clenched fist was considered an assault despite the
intervention of a third party. In this instance, if the defendant intentionally used words that put the
plaintiff in fear, the words may amount to an assault. In the case of R v Wilson,7the defendant
shouted, “get out the knives” would in itself be an assault. Lord Goddard stated that the words
would by themselves amount to an assault if accompanied by a tone of voice and facial or body
expression.

The second element is the reasonable apprehension of imminent harm suffered by the
plaintiff. Apprehension is worry or fear that something unpleasant may happen. This element can
be determined with an objective test by asking, “would a reasonable man faced with the same
situation as the plaintiff apprehend the imminent infliction of a battery?”.8In the case of R v St
George,9it was held that pointing a gun at a person constituted an assault even if it were
unloaded, as long as the plaintiff had not known that the gun was unloaded. This is because the
action would be reasonable for that person to believe that some form of violence will be inflicted
on him. On the other hand, where the victim was aware that the gun was not loaded but was still
afraid, that fear would be unreasonable, and therefore, there would be no assault in those
circumstances.

The third element is the capacity to carry out the threat by the defendant. The
defendant would not be liable for an assault if he does not have the capacity to carry out or
commit the threat. This element can also be referred to in the case of Stephen v Myers, where the
defendant advanced with his clenched fist and threatened to hit the plaintiff but was stopped by a
third party. The defendant was found liable for assault as he was advancing with an intention to
strike the plaintiff. Tindal CJ said: “It is not every threat when there is no actual personal
violence that constitutes an assault, there must be in all cases means of carrying the threat into
effect”.

4.1.2 APPLICATION

ISSUE 3.1.1

The issue is whether Adlina had committed assault on Manjeet. To establish the cause of
action on the ground of assault, Manjeet must prove three essential elements committed by
Adlina. The first element to prove assault is whether Adlina's act consists of gesture or
preparation to commit battery or infliction of bodily harm on Manjeet. In this case, Adlina's
preparation to commit battery upon Manjeet can be separated into three parts.
 First, similar to the case of Stephen v Myers [1840], Adlina showed her fist to Manjeet,
and such acts are enough to constitute apprehension of immediate violence. Second, Adlina said,
"Better watch out next time!" which shows that she had no intention to commit a battery at that
time as she just meant to warn Manjeet. Third, Adlina shouted at Manjeet, "Take off that smile
from your face!" and extended her fist to strike him when he didn't take her word seriously.
Applying the ruling in R v Wilson [1955], Adlina's words may amount to an assault as she yelled
in an angry tone of voice. At this point, she had the intention to inflict battery on Manjeet by
moving her hand to hit him. Additionally, holding a fist and moving it to the other shows that
there was preparation to cause battery, as in the case of Stephen v Myers [1840].

The second element that needs to be proven is whether there was a reasonable
apprehension of imminent harm suffered by Manjeet. Applying the objective test upon Manjeet, a
reasonable man faced with the situation where someone else was threatening and showing fists at
him would reasonably apprehend that the person was about to hit or inflict violence on him
regardless of being intimidated or not. Comparably, in R v St George [1840], it would be
reasonable for the plaintiff to believe that some form of violence would be inflicted when
someone was pointing a gun at him.

In the present case, Adlina has warned Manjeet to watch out next time. The fact that
Manjeet just smiled, reacting to Adlina's warning, showed that he believed that there would be no
imminent danger at the moment. Nevertheless, Adlina became furious by that and yelled at
Manjeet before extending her fist to hit him, but he bent down to avoid it. This showed that
Manjeet was aware of the imminent danger regardless of the probability that perhaps Adlina
would stop or miss it. His fear of the threat was reasonable.

The last element that needs to be proven is whether Adlina was capable of carrying out
her threat. It is understood that Adlina was about to hit Manjeet with her fist, but she hit Laila
instead as he bent down. Applying the ruling in the case of Stephen v Myers [1840], even though
Adlina missed to hit Manjeet, it was so close to him and happened in the blink of an eye before
he bent down. If Manjeet had not bent down, she would have hit him severely. Hence, Manjeet
would still reasonably have believed that Adlina could hit him as her emotion of anger also
accompanied her action.

In conclusion, Adlina had committed an assault on Manjeet as her mental state had
proved that she had the intention to inflict the injury, there was an apprehension of danger, and
she had the capacity to carry out the threat to Manjeet even though it did not reach him.
Therefore, Manjeet is entitled to sue Adlina for assault.

ISSUE 3.1.2

The issue is whether Laila had committed an assault on Manjeet. To establish the cause of
action on the ground of assault, Manjeet must prove three essential elements committed by Laila.
The first element to prove assault is whether Laila's act consists of gesture or preparation to
commit battery or infliction of bodily harm on Manjeet. Applying the ruling in the case of
Stephen v Myers [1840], Laila’s act of swinging her bag which was subsequently missed by
Manjeet is proportionate to be considered as a preparation to hit him, thus, she has the intention
to commit battery.

The second element that needs to be proven is whether there was a reasonable
apprehension of imminent harm suffered by Manjeet. It is understood that Manjeet bent down to
avoid being hit, showing that he reasonably feared the imminent danger. The case of R v St
George [1840] supports the proposition that Laila's act was sufficient to cause the apprehend of
immediate harm; wherein that case, the Court stated that the action of merely pointing out a gun
would be reasonable for that person to believe that some form of violence will be inflicted on
him. As a result of the effects of Adlina's attack in the first place, Manjeet must certainly be still
fearful of any direct physical attack. Thus, the swing of Laila's bag can still trigger Manjeet's fear
of any possible attack that may occur again, and his fear of the danger was reasonable.

The last element that needs to be proven is whether Laila was capable of carrying out her
threat. Laila could carry out the threat since there were no such means that would distract her
intention, such as the existence of security or any CCTV. The capacity to carry out the threat can
be proven according to the circumstances of the person's ability, whether she could bring it to the
effect regardless of other things that will hold her back or not. Laila was not disabled, supported
by her emotion after receiving the sudden blow from Adlina, which proved that she had the
capacity to carry out the threat to Manjeet.

To conclude, Laila had committed assault on Manjeet as her mental state had proved that
she had the intention to inflict the injury, causing Manjeet to apprehend the immediate danger,
and she had the capacity to carry out the threat to hit him. Hence, Manjeet is entitled to sue Laila
for assault

4.2 TRESPASS TO PERSON: BATTERY

4.2.1 RULES
In order to establish the cause of action on the ground of battery, there are three elements
that need to be fulfilled. The first element is hostile intention. The intentional act required in
battery is not the intention to hurt but the intention to apply physical force to the plaintiff. If the
act committed by the defendant is merely ordinary conduct in daily life, the defendant may not be
liable for battery. This rule had been laid down in the case of Collins v Wilcock10 whereby Robert
Goff LJ stated that:

A broader exception has been created to allow for exigencies for everyday life. all
physical contact which is generally acceptable in the ordinary conduct of everyday
life. Simply said, things acceptable in everyday life aren’t battery.

A clear illustration of this rule can be seen in the case of Wilson v Pringle.11In that case, a
boy suffered a severe injury when the defendant pulled the schoolbag off the plaintiff's shoulder,
which led him to fall on the ground and injure himself. The Court of Appeal held that liability
depended on whether the defendant's action had been hostile and not simply a schoolboy prank.
Touching must be hostile before it amounts to battery, and hostile is doing something the plaintiff
would object to.

Comparably in Scott v Shepherd,12the defendant threw a lighted squib into a crowded

marketplace. The squib was thrown on by two persons acting to preserve person and property
before it exploded, injuring the plaintiff's eye. The court held that the defendant is liable,
although his initial act did not target the plaintiff. The intermediaries are not considered as free
agents but act under compulsive necessity. The court stated, "The natural and probable
consequence of the act done by the defendant was injury to somebody, and, therefore, the act
was illegal at common law".

The second element is direct force. The plaintiff must prove that the defendant's act
must be a direct cause of damage to the plaintiff and that there was bodily contact, even if it is
nominal. Besides, even if the plaintiff had no knowledge or was unaware that the defendant had
committed battery, the defendant is still liable. In the case of Tiong Pik Hiong v Wong Siew
Gieu [1964],13the defendant was found liable for battery as the defendant had scratched the
plaintiff's face and hit her due to jealousy as she had a friendship with her husband. It is sufficient
to amount to force, and her jealousy does not excuse her actions.

The third element is that the defendant had committed battery without lawful
justification. The plaintiff must prove that the battery committed by the defendant was
wrongfully and unlawfully. As stated by Lord Goff in F v West Berkshire Health Authority
[1989]:14

A prank that gets out of hand, an over-friendly slap on the back may transcend the
bounds of lawfulness without being characterized as hostile. The suggested
qualification is difficult to reconcile with the principle that any touching of another
body is, in the absence of lawful excuse, capable of amounting to battery and
trespass.

This can be illustrated in the case of Daning Bin Laja v K. K. Hj. Tuaran Bin Majid
[1993],15 a policeman, fired a shot at the plaintiff while chasing him. The plaintiff claimed it was
done intentionally and maliciously without lawful excuse. It was held that battery was
established, and the defendant was liable as he had no grounds for believing that the plaintiff had
committed the offence that justified shooting. In the case of Collins v Wilcock [1984], the court
held that all physical contact which is generally acceptable in the ordinary conduct of daily life is
not a battery. As to what constitutes acceptable contact, this will differ from one society to
another, one generation to another and in different circumstances.

Generally, two defences can be used when a person faces charges for assault and battery:
consent and self-defence. First, consent is when the person voluntarily agrees to the intention of
the defendant. But when the person exceeds the extent of the act, the act can be considered a
battery on those grounds. Second, self-defence refers to the defendant's right to use physical
force to defend himself from bodily harm. Under common law, a person is protected by this
defence when they commit a trespass against the person as a result of using reasonable force,
which they honestly and reasonably believe is necessary to protect themselves, someone else, or
property.16 What degree of force is 'reasonable' will depend on the situation, but the basic
principle is that the amount and type of force must be balanced against the need for protection.

This defence can be applied by undergoing two objective tests. First, “is it reasonable to
apply violence?” and second, “is the violence used proportionate to the strike?”. This principle
was applied in Lane v Holloway [1967],17 where the plaintiff was an old folk while the defendant
was a 23 years old man. The defendant’s wife uttered bad words to him and he did the same. The
defendant walked upon him, and the plaintiff hit him because he thought the plaintiff might hit
him first. The defendant responded by punching him in the eye, causing a wound which needed
19 stitches. The Court of Appeal accepted that the defendant had reasonable grounds to believe
he needed to defend himself, but said that his blow was out of proportion to the danger, so he was
not covered by self-defence.

4.2.2 APPLICATION

ISSUE 3.2.1

The issue is whether Manjeet had committed battery towards Adlina. To establish the
cause of action on the ground of battery, Adlina must prove three essential elements committed
by Manjeet. The first element to prove battery is whether Manjeet's jostling action amounted to
hostile intention. It is understood that Manjeet jostled into Adlina several times on the LRT train.
The jostling was unwanted conduct for Adlina as she was enraged and objected to it. Referring to
the case of Wilson v Pringle [1986], doing something the plaintiff would object to is hostile.
Besides, any touching of another's body in the absence of lawful excuse, including unwanted
conduct, can amount to a battery following the case of Collins v Wilcock [1984].

The second element that needs to be proven is whether there was a direct force or contact
with Adlina. It can be understood that any physical contact with the body is sufficient to amount
to force. In the present case, it is clear that there was a direct force and physical contact when
Manjeet jostled into Adlina. Comparably, in Tiong Pik Hiong v Wong Siew Gieu [1964], the
defendant attacked the plaintiff by scratching her face, neck and arm, causing her injury. Based
on the facts of the current case, there were no injuries that occurred to Adlina. However, it is
incumbent to be noted again that since trespass is actionable per se, it is not necessary that Adlina
suffers from any physical hurt.

The last element that needs to be proven is whether Manjeet had acted without lawful
justification. It should be noted that ‘jostle’ means to push, elbow, or bump against someone
roughly, typically in a crowd. The LRT train was crammed with people when Manjeet jostled into
Adlina. This means that Manjeet was not jostling her unnecessarily. The action was generally
acceptable in the ordinary conduct of daily life, especially when they were in the middle of the
crowds in a public place. It is in accordance with the ruling in Collins v Wilcock [1984], where
physical contact, which is generally acceptable in the ordinary conduct of daily life, does not
amount to a battery.

In conclusion, Manjeet had not committed battery on Adlina because Manjeet did not
fulfil all of the required elements. Even though Manjeet’s act was unwanted conduct for Adlina
amounted to hostile intention, and the jostling amounted to direct force on Adlina, Manjeet had
lawful justification for jostling Adlina. Thus, Adlina is not entitled to sue Manjeet for battery.

ISSUE 3.2.2

The issue is whether Adlina had committed battery towards Laila. To establish the cause
of action on the ground of battery, Laila must prove three essential elements committed by
Adlina. The first element to prove battery is whether Adlina’s act of accidentally hitting Laila
with her fist was considered a hostile intention. It is understood that Adlina intended to hit
Manjeet with her fist, but it hit Laila instead as Manjeet bent down. In Scott v Shepherd [1773],
the court held that the defendant is liable although his initial act did not target the plaintiff.
Similarly, Adlina would be liable, although her initial aim was not to hit Laila. Thus, she would
still be liable for the intentional tort even though it was accidentally transferred. This is due to the
fact that the probable consequence of her act was an injury to somebody.

The second element that needs to be proven is whether there was physical contact or
direct force on Laila's body. As referred to in the case of Tiong Pik Hiong v Wong Siew Gieu
[1964], the defendant was found liable for battery as the defendant attacked the plaintiff by
scratching her face, neck and arm. In the present case, Adlina hit Laila with her fist. Battery is
actionable per se. Hence, it is not necessary to prove that Laila has suffered from injury because
of the hit. The hit itself is sufficient to amount to force on Laila.

The last element that needs to be proven is whether Adlina had acted without lawful
justification. It should be noted that at first, Adlina intended to throw the fist at Manjeet as he
jostled Adlina several times, but he bent down and instead, the blow hit Laila. As mentioned
above, crowded and jostling are normal on a rail. Adlina’s irritation due to being jostled
repeatedly by Manjeet was understandable. However, it was unreasonable for Adlina to start
hitting someone as it was not proportionate to a mere jostle. Even if Adlina’s hit reached Manjeet
as her target, Laila was a passerby who had nothing to do with their quarrel, and the act still could
not be justified under any reasonable reason. Following the case of Daning Bin Laja V K. K. Hj.
Tuaran Bin Majid [1993], Adlina’s hit, which was inflicted on Laila, was intentionally and
maliciously without lawful excuse.

To conclude, Adlina had committed battery on Laila. Adlina did have a hostile intention
the moment she threw her fist, even though she mistargeted it to Laila. There was a direct force
on Laila's body, and Adlina had acted without lawful justification. Thus, all the elements of
battery were established, and Laila is entitled to sue Adlina for battery.
ISSUE 3.2.3

The issue is whether there is any defence available for Adlina. It is understood that
Manjeet jostled into Adlina several times due to the cramped situation on the LRT train.
However, Adlina thought that Manjeet was doing that on purpose. Adlina then showed her fist
and attempted to hit Manjeet to protect herself from bodily harm caused by Manjeet. In this
defence, Adlina must prove that it was reasonable in the circumstances to defend herself and
apply violence. However, it can be argued that Manjeet’s action of jostling was merely because
the LRT train was cramped by many people and without malevolent intention. Second, the force
used by her was reasonable. In this case, the hit was not proportionate to a mere jostle.

Comparably, in Lane v Holloway [1967], the defendant was found liable on the ground
that although the defendant had reasonable grounds to believe he needed to defend himself, his
blow was out of proportion to the danger, so self-defence is not applicable to the defendant.
Applying the ruling in that case to the scenario, Adlina would be liable as her action of hitting
was not proportionate to the action of jostling by Manjeet. This is due to the fact that a hit is more
severe than a mere jostle.

Thus, Adlina could not successfully apply self-defence and concurrently has no available
defence.

4.3 INTERFERENCE WITH GOODS: TRESPASS TO GOODS

4.3.1 RULES

Trespass of goods is defined as wrongful and direct interference of goods in another’s

possessions.18 Generally, a plaintiff who sues in trespass to goods need not prove damage he
suffered as it is not necessary for establishing a tort that is actionable per se.19 Three essential
elements need to be established, which include (1) the intention to interfere with the plaintiff’s
goods, (2) the interference must be directly through physical contact and (3) without lawful
justification, whether that be by taking or damaging the goods without removing them.

The first element is the intention of the defendant to interfere with the plaintiff’s
goods. As with all intentional torts, the defendant must have had the intention to deal with the
goods. It is irrelevant whether the defendant dealt with the goods under an honest or reasonable
mistaken belief that he was entitled to do so. In the case of National Coal Board v Evans,20the
defendant’s employees damaged the plaintiff’s electric cable during their excavation work. The
court held there was no trespass as the act was accidental and not intentional. In contrast, in the
case of Wilson v Lombank Ltd,21 a car had been sent to a garage for repair and the defendant,
misbelieving that the car was his, removed it from the garage. It was held that the defendant was
liable for trespass as he had intentionally removed the car, and it was irrelevant that it was due to
a mistake.

The second element is the direct interference of the trespasser to the plaintiff’s property
or goods. Direct interference means that the interference with possession of goods must be
through the direct action of the defendant, which causes immediate contact with the plaintiff’s
property and goods. Even the slightest interference will suffice. 22In the case of Kirk v Gregory,23
the defendant had moved rings belonging to a deceased to another room without prior consent. It
was held that trespass was established as the defendant physically and voluntarily moving the
goods.

The third element in establishing trespass to goods is that the defendant had acted without
lawful justification. The plaintiff must prove that the defendant did not have any legal
justification. If the defendant can justify and prove that the interference with the goods was
lawful, the defendant would not be liable for trespass to goods. This can be illustrated in the case
of Haji Awaluddin bin Anidin v Majlis Perbandaran Kuantan,24 where the defendant went to the
plaintiff’s house and removed a cassette recorder and television prior to a local statute because
the plaintiff had arrears of payments for his house. There was no trespass since the act was under
the lawful authority of a statute to seize the plaintiff’s goods and return the goods only after
payment was made.

4.3.2 APPLICATION

ISSUE 3.3.1

The issue is whether Adlina can sue the joyriders under trespass to goods. The first
element that Adlina needs to prove is the intention of the joyriders to interfere with her goods. It
is understood that the joyriders conceived the idea to take Adlina's car and subsequently left it on
Benn's land with some damage. Applying the principle of law from the Wilson v Lombank Ltd
[1963], it was held that trespass was established and irrelevant that it was due to a mistake. Since
the joyriders intended to steal the car wrongfully, it shows that they had intentionally interfered
with Adlina's goods. Even if they had no idea who the car owner was, their wrongful actions
were obviously intended by their own will.

The second element that Adlina needs to prove is the direct interference of the joyriders to
her goods. There is no real distinction between the case here and the case of Kirk v. Gregory
[1876], where the defendant was liable because he had moved the ring belonging to a deceased to
another room without prior consent. In the present case, the joyriders had used the car without
prior consent from the rightful owner. They clearly had direct interference with Adlina’s car by
physically and voluntarily taking the car from the secluded area near the LRT station and
eventually abandoning it on Benn land with some damage which was considered an immediate
contact with Adlina’s car. Even the slightest interference will suffice, and removing the car from
one place to another constitutes physical interference that may be justified only on the ground that
it is reasonable and necessary to do so.

The third element that Adlina must prove is whether the joyriders had acted without
lawful justification. In contrast with the case of Haji Awaluddin bin Anidin v Majlis
Perbandaran Kuantan [1996], while the defendant had lawful authority to seize the goods
belonging to the plaintiff, in the present case, the joyriders had made physical interference with
Adlina's car without any lawful justifications. No reasonable reason can be given for stealing
someone else's car, and it is an illegal offence to do so.

However, it should be noted that if a person takes possession of another's property

without lawful justification, this gives rise to two torts: the tort of trespass to good and the tort of
conversion. In this case, no conversion will occur since the joyriders' interference is merely
temporary and trivial. There was no evidence to show they wanted to exercise rights over the
goods as the joyriders had abandoned the car on Benn's land.

To conclude, the joyriders have fulfilled all the elements stated as they have an intention
to interfere with Adlina’s car, there is direct physical interference, and the joyriders had acted
without lawful justification. Therefore, Adlina is entitled to sue them on trespass to goods.

4.4 INTERFERENCE WITH GOODS: CONVERSION

4.4.1 RULES

Conversion can be defined as dealing with goods inconsistent with the rights of the true
owner or person entitled to possession.25 The tort will not be established if there is no positive
wrongful act on the defendant's part. The protected interest enables the plaintiff to have dominion
and control over his goods. The conversion only arises when the detention of the goods is adverse
to the owner, excluding him from the goods, accompanied by an intention to keep the goods. In
Coolrich Engineering (M) Sdn Bhd v Protection Rigging Access Services Sdn Bhd,26 the High
Court enumerated a list of circumstances regarded as conversion. These include:

(i) when property is wrongfully taken or received by someone not entitled to do so;
(ii) when it is wrongfully parted with; (iii) when it is lost by a bailee in breach of his
duty as a bailor; (iv) when it is wrongfully sold; (v) when it is wrongfully retained;
(vi) when it is wrongfully misused or destroyed; and (vii) when the defendant,
without physically interfering with it, wrongfully denies access to it to the claimant.

There are two essential elements in establishing conversion. The first element that needs to
be fulfilled is that the defendant’s act must be voluntary and done intentionally to exercise
dominion over the goods. It does not matter if the person who willingly dealt with the goods
was unaware of or could not reasonably have known that the other party had an interest in them.27
This can be illustrated in the case of Hollins v Fowler,28 where a person obtained cotton from the
plaintiff by fraud and sold the cotton to the defendant, who is a cotton broker. The defendant then
resold it to a third party. The House of Lords held that the defendant was guilty of conversion. It
can be inferred that an auctioneer who sells and delivers stolen property or property subject to a
bill of sale is liable to the true owner or the bill of sale holder, even though ignorant of any such
adverse title and even though he has already paid over the proceeds to his client. However, no
action can be taken against the purchaser who is the third party as he is a bona fide purchaser. A
bona fide purchaser cannot be sued for conversion. 29

A contradictory decision was made in Che Din Mohamed Hashim v Teoh Ong Thor and
Chew Chan Seng,30 where the bona fide purchaser for value did not acquire a good title as he
and the seller knew at the time of the sale; the seller had no right to sell the goods. The above two
cases demonstrate the nemo dat rule, which literally means ‘no-one can transfer what he has not
got’,31 which means a person cannot give a better title than what he has to someone else. This
principle is best illustrated in the case of Bank Simpanan Nasional v Mutiara Smart Sdn Bhd &
Anor,32 where the plaintiff argued that he did not know the contract between the first and second
defendant and argued that the second defendant could not repossess the computer equipment. The
High Court dismissed the plaintiff's claim citing the nemo dat rule and Section 27(1) of the Sale
of Goods Act 1957. Howbeit, an exception is for a bona fide purchaser who has acquired goods
in good faith and without knowledge of the original owner's rights. A person seeking to rely on
the bona fide purchaser exception must prove they acted in good faith, had no suspicions about
the sale, and did not know about the defective title from the seller.

Next, the second element is that the defendant's interference or conduct is inconsistent
with the person's rights entitled to possession. Generally, if a person takes possession of
another's property without lawful justification, this gives rise to two torts: the tort of trespass to
good and the tort of conversion. However, no conversion will occur if the interference is merely
temporary and trivial, without any purpose to exercise rights over the goods or assert rights
inconsistent with the plaintiff's right. In Mitsuho Electronics Sdn Bhd v Allswell Packagings
Sdn Bhd,33the court found that although the defendant committed no trespass, the defendant had
committed the tort of conversion when they wrongfully detained and subsequently sold the
plaintiff's goods or belongings. Similarly, in Mewah-Oils Sdn Bhd v Lushing Traders Pte
Ltd,34the defendant held to have converted the plaintiff's crude oil by processing it into refined
palm olein. Wrongfully causing permanent alteration to the nature of the goods can also
constitute conversion.

Nonetheless, some categories of persons are often either in actual possession or have an
immediate right to possession; this includes the finder’s right. A general rule is a person who
finds an object has a good title and can bring a claim against anyone except:

1. The true owner.

2. The occupier of the land where the object is found, when the finder is a trespasser but
sometimes, even if the finder is not a trespasser, he has to return the item. 3. When the
object is attached to the land.

This can be illustrated in the case of Daniel s/o D William v Luhat Wan,35 where it was
held that the plaintiff’s right of possession was transitory until such time when the rightful owner
asserted his right. The defendant, the rightful owner of the lottery ticket, has the right over the
goods.

4.4.2 APPLICATION

ISSUE 3.4.1

The issue is whether Carol had committed conversion on Adlina's goods. The first
element that Adlina needs to determine is whether Carol has the intention to exercise dominion
over her goods. It is understood that Carol, a trespasser, found Adlina's car and sold it to Danny.
The case of Hollins v Fowlers (1875) is comparable to the current case, in which Carol intended
to sell the car to Danny voluntarily and deliberately sold it to him. The fact that Carol knows it
was not her car and eventually sold it to Danny demonstrates that she had the purpose of
establishing her dominance over the vehicle through the sale she made. In Coolrich Engineering
(M) Sdn Bhd v Protection Rigging Access Services Sdn Bhd [2019], some of the lists of
circumstances regarded as conversion has been fulfilled, that is, when the property is wrongfully
taken or received by someone not entitled to do so; and when it is wrongfully sold. As the car
was not Carol's in the first place, selling it to Danny amounted to conversion as she was only the
finder of the car. Carol is not the actual possessor of the vehicle, and her action of selling the car
had purported to deny the true owner's right over the vehicle.

The second requirement that Adlina needs to determine is whether Carol's conduct is
inconsistent with the person's right entitled to possession. Adlina is the rightful owner and
possessor of the car, as demonstrated by the fact that she utilised her car as a medium of
transportation to get to the LRT station. The case of Mitsuho Electronics Sdn Bhd v Allswell
Packagings Sdn Bhd [2015] supports the proposition that there is inconsistent dealing on the part
of Carol, wherein in that case, the Court of Appeal found the defendant had committed the tort of
conversion when they wrongfully detained and subsequently sold the plaintiff's goods. In this
present case, Carol had illegally taken Adlina's car and sold it to Danny when she was not entitled
to do so. Carol had initially found the car, but that did not give her the right to sell it directly
because she did not own the car.

In conclusion, Carol had committed conversion on Adlina’s goods. She has fulfilled all
the elements stated as she has an intention to exercise dominion over the goods, and her conduct
was inconsistent with Adlina's right as the person entitled to possession. Therefore, Adlina is
entitled to sue Carol for conversion.

ISSUE 3.4.2

The next issue is whether Carol has the right over Adlina's goods as a finder. There is no
real distinction between the case here and the case of Daniel s/o D William v Luhat Wan [1990].
In that case, the plaintiff's claim over the lottery ticket failed against the defendant, whom the
court held to be the owner. Similarly, Carol, the finder, has a good title and can keep the car and
bring a claim against anyone except the true owner. However, it is undeniable that Adlina is the
rightful owner of the car. That means Carol cannot use the maxim of ‘finding is keeping’ because
Adlina, as a true owner, can assert her right to the car, and she has a better title to it than Carol
does.
 To conclude, Carol did not have the right over Adlina's car as a finder; thus, Adlina may
file a claim against her.

ISSUE 3.4.3

The issue is whether Danny had committed conversion on Adlina's goods. The first
element that Adlina needs to determine is whether Danny has an intention to exercise dominion
over her goods. It is understood that Danny bought Adlina’s car from Carol, which he obtained
wrongfully. This is similar to the case of Hollins v Fowlers (1875), even though the defendant
was ignorant about the plaintiff’s right, the court held that the defendant is liable for conversion.
By applying the ruling of the case, it is immaterial whether Danny was unaware of or could not
reasonably have known that the car belonged to Adlina as long as he deliberately and
intentionally dealt with the car.

Following the ruling upheld in Coolrich Engineering (M) Sdn Bhd v Protection Rigging
Access Services Sdn Bhd [2019], the situation is considered a conversion when the goods are
wrongfully sold. In the current case, the wrongful receiving, detaining, treating the car as his
own, and even selling it to Eric are among the circumstances regarded as conversion. He
completely disregarded Adlina's rights as the original owner of the car.

The second requirement that Adlina needs to determine is whether Danny's conduct is
inconsistent with the person's right entitled to possession. It is understood that Danny bought the
car from Carol, and he has sprayed it with other colours to match his football club. Besides, he
sold the van to Eric. In Mitsuho Electronics Sdn Bhd v Allswell Packagings Sdn Bhd [2015],
the defendant had committed conversion when they wrongfully detained and sold the plaintiff’s
belongings. By applying the ruling in that case, Danny’s act amounted to conversion as he had
wrongfully sold and physically interfered with Adlina’s car.

Apart from that, the case of Mewah-Oils Sdn Bhd v Lushing Traders Pte Ltd [2017]
supports the proposition that there is inconsistent dealing on the part of Danny, wherein, in that
case, the defendant held to have converted the plaintiff’s crude oil by processing it into refined
palm olein. Similarly, in the current case, Danny’s conduct of repairing the damage to the car
caused by the joyriders and spraying it in the colours of his local football club would amount to
wrongfully causing permanent alteration to the nature of the goods. By treating the property as
his own, making some changes and selling it to others, he had interfered with the rightful owner’s
right.
 In conclusion, Danny had committed conversion for Adlina's good. He has fulfilled all the
elements stated as he has an intention to exercise dominion over the goods, and his conduct was
inconsistent with Adlina's right as the person entitled to possession. Therefore, Adlina is entitled
to sue Danny for conversion.

ISSUE 3.4.4

The issue is whether Eric had committed conversion on Adlina's goods. By buying the
vehicle, Eric had interfered with Adlina's rights and deprived her of ownership of the car.
Generally, buyers have possession rights over the goods they purchase. Since Eric had no actual
or imputed knowledge of existing titles to the property, he was counted as a bona fide purchaser
for value without notice. As referred to in the case of Hollins v Fowler (1875), the bona fide
purchaser cannot be liable for conversion. Eric as the third party was innocent purchaser value;
he bought the car in good faith. However, as referred to in the Che Din Mohamed Hashim v
Teoh Ong Thor and Chew Chan Seng [1950] case, Eric can only be liable if he knew that the
seller, Carol, had no right of ownership over the car belonging to Adlina.

In conclusion, Eric cannot be held liable for conversion as he was a bona fide purchaser;
thus, he was excluded from the liability.

ISSUE 3.4.5

The last issue is whether Adlina can claim her van from Eric. As discussed before, Eric
was a bona fide purchaser for value without notice as he was an innocent purchaser that bought
the car in good faith. In this event, Adlina can apply the nemo dat rule, which means a person
who does not have adequate ownership of goods or property cannot transfer the ownership of
those goods or that property to someone else.

There is no real distinction between the case here and the case of Bank Simpanan
Nasional v Mutiara Smart Sdn Bhd & Anor [2022], where in that case, the plaintiff claimed that
he did not know the first and second defendants' contracts and argued that the second defendant
could not repossess the computer equipment, but the High Court dismissed the plaintiff's claim
citing the nemo dat rule. In the present case, Eric bought the car from Danny, who had no
ownership over the van. However, it should be noted that it depends on the Court decision
because Eric can still rely on the bona fide purchaser exception, then the onus is to prove that he
has at all times acted in good faith and free of suspicion that there was an issue with the sale, and
that he did not know of the defective title from the seller.
 After all, Adlina can claim back her van by raising the nemo dat rule, but if Eric wants to
keep the van, he can rely on the bona fide purchaser rule, and such the onus will be shifted to
him.