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Issue #25/2017
22 June 2017

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New This Week

  1. Case(s) of the Week

    1. HOTEL SENTRAL (JB) SDN BHD v. PENGARAH TANAH DAN GALIAN NEGERI JOHOR, MALAYSIA & ORS [2017] 6 CLJ 161

  2. Latest Cases

    1. Legal Network Series

    2. CLJ 2017 Volume 6 (Part 2)

  3. Articles

    1. LNS Article(s)

  4. Legislation Highlights

    1. Principal Acts

    2. Amending Acts

    3. PU(A)

    4. PU(B)

    5. Legislation Alert

CASE(S) OF THE WEEK

HOTEL SENTRAL (JB) SDN BHD v.
PENGARAH TANAH DAN GALIAN NEGERI JOHOR, MALAYSIA & ORS
[2017] 6 CLJ 161
COURT OF APPEAL, PUTRAJAYA
MOHD ZAWAWI SALLEH JCA; ABDUL RAHMAN SEBLI JCA; PRASAD SANDOSHAM ABRAHAM JCA
[CIVIL APPEAL NO: J-01(A)-408-12-2015]
15 DECEMBER 2016

ADMINISTRATIVE LAW: Judicial review – State authority – Decision to revoke road reserve providing access to applicant's hotel – Whether detrimental to applicant – Doctrine of legitimate expectation – Whether ought to be enforced – Whether applicant relied on representation of relevant authorities that there would be road access to hotel – Whether incumbent on court to protect interest of parties whose expectations had been created by conduct of particular authorities

ADMINISTRATIVE LAW: Exercise of judicial functions – Judicial review – Whether applicant adversely affected – Whether applicant aggrieved party – Whether applicant crossed threshold of locus standi – Whether applicant entitled to judicial review

ADMINISTRATIVE LAW: Judicial review – State authority – Act of alienating reserved road to company – Whether exercise of unfettered statutory power – Whether authority acted within bounds of statute – Whether court could intervene in exercise of statutory duties

LOCAL GOVERNMENT: State authority – Road reserve – Decision to revoke road reserve providing access to applicant's hotel – Whether detrimental to applicant – Doctrine of legitimate expectation – Whether ought to be enforced – Whether applicant relied on representation of relevant authorities that there would be access to hotel – Act of alienating reserved road to company – Whether exercise of unfettered statutory power – Whether state authority acted within bounds of statute – Whether court could intervene in exercise of statutory duties 


LATEST CASES

Legal Network Series

[2016] 1 LNS 670

PP lwn. CHEW YU PENG

UNDANG-UNDANG JENAYAH: Kanun Keseksaan - Seksyen 304(a) Kanun Keseksaan - Kesalahan homisid yang tidak terjumlah kepada bunuh - Niat - Tertuduh dalam keadaan mabuk ketika perlakuan jenayah - Sama ada tertuduh mempunyai niat untuk membunuh

PROSEDUR JENAYAH: Penghukuman - Prinsip-prinsip - Kesalahan homisid yang tidak terjumlah kepada bunuh - Kesalahan yang serius - Pengakuan bersalah selepas perbicaraan bermula - Kepentingan awam - Sama ada mahkamah mempunyai budibicara untuk memberi sebarang diskaun dalam hukuman - Sama ada hukuman yang dijatuhkan harus menggambarkan keseriusan kesalahan yang dilakukan tertuduh - Sama ada kepentingan awam menghendaki mahkamah menjatuhkan hukuman penjara yang panjang

[2016] 1 LNS 725

N SURENDRAN K NAGARAJAN lwn. PP

PROSEDUR JENAYAH: Pertuduhan - Permohonan untuk pembatalan - Permohonan oleh tertuduh untuk membatalkan pertuduhan serta pelepasan dan pembebasan daripada pertuduhan - Pertuduhan dibawah s. 4(1)(b) Akta Hasutan 1948 - Pertuduhan terhadap peguam - Sama ada terdapat pengecualian dibawah Akta Hasutan 1948 untuk membuat pertuduhan terhadap peguam

[2016] 1 LNS 884

PAN MALAYSIAN POOLS SDN BHD v. KWAN TAT THAI & ANOR

LABOUR LAW: Employment - Terms and conditions - Breach - Remedy - Action against employees - Claim for general damages and disgorgement of secret profits - Employee's employment terminated following breach of terms of employment - Allegation that employees entered into unlawful profit sharing arrangement with vendors of employer - Whether employer availed itself of its remedy for breach of employment terms when it dismissed employees

EVIDENCE: Documentary evidence - Admissibility of - Computer generated evidence - Documents retrieved from forensic examination of primary hard disk - Document marked as part C - Whether there was a need to adduce primary evidence - Whether document retrieved from forensic examination of primary hard disk admissible - Evidence Act 1950, s. 21

[2016] 1 LNS 904

GOH KIM WAH v. NORHASNANY MOHAMED NASRI & ANOR

ROAD TRAFFIC: Negligence - Road accident - Ascertaining ownership of vehicle involved in accident - Registration number of vehicle involved in accident was registered in name of defendant - Defendant denying her vehicle involved in accident or her presence at accident spot - Defendant's version corroborated by police report and statutory declaration - Whether it was incumbent for plaintiff to prove vehicle involved in accident belonged to defendant - Whether defendant could be held liable merely because registration number of vehicle involved in accident was under her name

[2016] 1 LNS 910

IBRACO PROPERTIES SDN BHD v. SUPERINTENDENT OF LANDS AND SURVEYS, KUCHING DIVISION

LAND LAW: Acquisition of land - Compensation - Method of valuation - Determining market value - Absence of notice pursuant to s. 47 of Sarawak Land Code - Whether compensation should be determined by reference to market value of land as at date of publication of s. 48 notice - Whether compensation awarded was fair and reasonable


CLJ 2017 Volume 6 (Part 2)

COURT OF APPEAL

Credit Guarantee Corporation Malaysia Bhd v. SSN Medical Products Sdn Bhd
Lim Yee Lan, Badariah Sahamid, Harmindar Singh Dhaliwal JJCA
(Tort - Negligence - Duty of care - Furnishing of credit information into Bank Negara Central Credit Reference Information System - Defamation - Libel) [2017] 6 CLJ 129 [CA]

Dato' Joseph Chong Chek Ah & Anor v. AmCard Services Bhd
Alizatul Khair Osman, David Wong Dak Wah, Prasad Sandosham Abraham JJCA
(Land Law; Statutory Interpretation - Lien - Lien holder's caveat - Creation of lien over property to secure payment of balance judgment debt) [2017] 6 CLJ 151 [CA]

Hotel Sentral (JB) Sdn Bhd v. Pengarah Tanah Dan Galian Negeri Johor, Malaysia & Ors
Mohd Zawawi Salleh, Abdul Rahman Sebli, Prasad Sandosham Abraham JJCA
(Administrative Law; Local Government - State authority - Road reserve - Decision to revoke road reserve providing access to applicant's hotel) [2017] 6 CLJ 161 [CA]

Punjab National Bank v. Malayan Banking Bhd
Abdul Aziz Abdul Rahim, Badariah Sahamid, Prasad Sandosham Abraham JJCA
(Civil Procedure - Jurisdiction - Forum conveniens - Proper forum to try action) [2017] 6 CLJ 180 [CA]

The Carbon Company Sdn Bhd v. Ng Lee Hoon
Prasad Sandosham Abraham, Zabariah Mohd Yusof, Asmabi Mohamad JJCA
(Civil Procedure; Evidence - Burden of proof - Whether discharged - Action based on tort of conversion and trespass to goods) [2017] 6 CLJ 189 [CA]

Venu Nair & Anor v. Public Bank Bhd
Idrus Harun, Zaleha Yusof, Mary Lim JJCA
(Civil Procedure - Judgment and orders - Execution of judgment - Judgment against legal firm) [2017] 6 CLJ 211 [CA]

HIGH COURT

HSBC Bank Malaysia Bhd v. Dato' Seri Mohamad Khir Toyo & Anor
Mohd Nazlan Ghazali JC
(Contract; Civil Procedure - Agreement - Breach - Breach of facility agreement) [2017] 6 CLJ 230 [HC]

SUBJECT INDEX

ADMINISTRATIVE LAW

Exercise of judicial functions - Judicial review - Whether applicant adversely affected - Whether applicant aggrieved party - Whether applicant crossed threshold of locus standi - Whether applicant entitled to judicial review
Hotel Sentral (JB) Sdn Bhd v. Pengarah Tanah Dan Galian Negeri Johor, Malaysia & Ors
(Mohd Zawawi Salleh, Abdul Rahman Sebli, Prasad Sandosham Abraham JJCA) [2017] 6 CLJ 161 [CA]

Judicial review - State authority - Act of alienating reserved road to company - Whether exercise of unfettered statutory power - Whether authority acted within bounds of statute - Whether court could intervene in exercise of statutory duties
Hotel Sentral (JB) Sdn Bhd v. Pengarah Tanah Dan Galian Negeri Johor, Malaysia & Ors
(Mohd Zawawi Salleh, Abdul Rahman Sebli, Prasad Sandosham Abraham JJCA) [2017] 6 CLJ 161 [CA]

Judicial review - State authority - Decision to revoke road reserve providing access to applicant's hotel - Whether detrimental to applicant - Doctrine of legitimate expectation - Whether ought to be enforced - Whether applicant relied on representation of relevant authorities that there would be road access to hotel - Whether incumbent on court to protect interest of parties whose expectations had been created by conduct of particular authorities
Hotel Sentral (JB) Sdn Bhd v. Pengarah Tanah Dan Galian Negeri Johor, Malaysia & Ors
(Mohd Zawawi Salleh, Abdul Rahman Sebli, Prasad Sandosham Abraham JJCA) [2017] 6 CLJ 161 [CA]

CIVIL PROCEDURE

Judgment and orders - Execution of judgment - Judgment against legal firm - Application to execute judgment against partners of legal firm allowed by High Court - Appeal against - Whether issue of liability had to be first determined by High Court granting any leave to execute - Issue of O. 77 r. 5(5) of Rules of Court 2012 raised in memorandum of appeal but not before High Court - Whether parties bound by pleadings - Whether appeal ought to be dismissed
Venu Nair & Anor v. Public Bank Bhd
(Idrus Harun, Zaleha Yusof, Mary Lim JJCA) [2017] 6 CLJ 211 [CA]

Jurisdiction - Forum conveniens - Proper forum to try action - Claim to recover payment and reimbursement from bank in India - Whether High Court of Kuala Lumpur had jurisdiction to try action - Whether proceedings already commenced in India - Whether principal parties located in India - Whether letter of credit which was subject matter of dispute issued from bank's office in India - Whether forum conveniens was High Court in India
Punjab National Bank v. Malayan Banking Bhd
(Abdul Aziz Abdul Rahim, Badariah Sahamid, Prasad Sandosham Abraham JJCA) [2017] 6 CLJ 180 [CA]

Setting aside - Appeal for - Application to set aside writ and statement of claim, notice of writ to be served out of jurisdiction and order of service out of jurisdiction - Jurisdiction - Forum conveniens - Proper forum to try action - Claim to recover payment and reimbursement from bank in India - Whether High Court of Kuala Lumpur had jurisdiction to try action - Whether forum conveniens High Court in India - Whether appeal ought to be allowed
Punjab National Bank v. Malayan Banking Bhd
(Abdul Aziz Abdul Rahim, Badariah Sahamid, Prasad Sandosham Abraham JJCA) [2017] 6 CLJ 180 [CA]

Statement of claim - Pleadings - Action based on tort of conversion and trespass to goods - Pleadings failed to disclose material facts - Whether detrimental to parties - Importance of pleadings - Whether parties strictly bound to pleadings - Whether court entitled to decide case on matters not pleaded - Whether court could build case for litigants - Whether burden of proof discharged when pleadings do not disclose sufficient facts
The Carbon Company Sdn Bhd v. Ng Lee Hoon
(Prasad Sandosham Abraham, Zabariah Mohd Yusof, Asmabi Mohamad JJCA) [2017] 6 CLJ 189 [CA]

Summary judgment - Triable issues - Whether applicant satisfied preliminary requirements for proceedings under O. 14 of Rules of Court 2012 - Whether case comes within order - Whether summary judgment ought to be entered against defendants
HSBC Bank Malaysia Bhd v. Dato' Seri Mohamad Khir Toyo & Anor
(Mohd Nazlan Ghazali JC) [2017] 6 CLJ 230 [HC]

CONTRACT

Agreement - Breach - Breach of facility agreement - Borrower failed to make prompt and punctual payments of sums owing under agreement - Claim by bank for repayment - Property forfeited by Government due to criminal conviction of one of the borrowers - Whether borrowers liable to pay following forfeiture order - Whether it was implied term of agreement that it was only valid for as long as borrowers continue to own, control and occupy property - Whether agreement frustrated by forfeiture of property - Contracts Act 1950, s. 57(1) & (2)
HSBC Bank Malaysia Bhd v. Dato' Seri Mohamad Khir Toyo & Anor
(Mohd Nazlan Ghazali JC) [2017] 6 CLJ 230 [HC]

EVIDENCE

Burden of proof - Whether discharged - Action based on tort of conversion and trespass to goods - Pleadings failed to disclose material facts - Whether burden of establishing case and introducing evidence discharged - Whether burden of proof discharged when pleadings do not disclose sufficient facts
The Carbon Company Sdn Bhd v. Ng Lee Hoon
(Prasad Sandosham Abraham, Zabariah Mohd Yusof, Asmabi Mohamad JJCA) [2017] 6 CLJ 189 [CA]

LAND LAW

Lien - Lien holder's caveat - Creation of lien over property to secure payment of balance judgment debt - High Court Judge allowed application pursuant to s. 281 of the National Land Code to sell property to satisfy judgment sum - Appeal against - Whether a lien holder caveatee may realise its asset without first obtaining a judgment of the court for the amount due to it under lien - Whether creation of security by way of lien on title only for benefit of registered proprietor - Whether extends to third party borrowers - Whether entry of lien holder's caveat must be made contemporaneously with grant of loan - Whether caveatee can rely on judgment entered into between caveator and caveatee before creation of lien holder's caveat - Whether enforcement of lien holder's caveat intended by parties
Dato' Joseph Chong Chek Ah & Anor v. AmCard Services Bhd
(Alizatul Khair Osman, David Wong Dak Wah, Prasad Sandosham Abraham JJCA) [2017] 6 CLJ 151 [CA]

LOCAL GOVERNMENT

State authority - Road reserve - Decision to revoke road reserve providing access to applicant's hotel - Whether detrimental to applicant - Doctrine of legitimate expectation - Whether ought to be enforced - Whether applicant relied on representation of relevant authorities that there would be access to hotel - Act of alienating reserved road to company - Whether exercise of unfettered statutory power - Whether state authority acted within bounds of statute - Whether court could intervene in exercise of statutory duties
Hotel Sentral (JB) Sdn Bhd v. Pengarah Tanah Dan Galian Negeri Johor, Malaysia & Ors
(Mohd Zawawi Salleh, Abdul Rahman Sebli, Prasad Sandosham Abraham JJCA) [2017] 6 CLJ 161 [CA]

STATUTORY INTERPRETATION

National Land Code - Section 281 - Whether speaks of holder of any lien 'obtaining judgment for the amount due' - Whether limited to creation of security by way of lien on title only for benefit of registered proprietor - Whether extends to third party borrowers - Whether the whole purpose of a lien holder's caveat is to allow statutory lien to be created as a form of security over land
Dato' Joseph Chong Chek Ah & Anor v. AmCard Services Bhd
(Alizatul Khair Osman, David Wong Dak Wah, Prasad Sandosham Abraham JJCA) [2017] 6 CLJ 151 [CA]

TORT

Defamation - Libel - Whether defendant submitted wrong information regarding plaintiff's financial status to Bank Negara Central Credit Reference Information System ('CCRIS') - Plaintiff's statement of claim only made general reference to CCRIS report - Failure to pick out parts that were defamatory - Whether fatal to action - Defence of qualified privilege - Whether available to defendant - Whether defendant's furnishing of credit information into CCRIS reporting system for benefit of financial credit industry - Whether there was proof of actual malice - Order requiring defendant to publish apology in local newspaper - Whether disproportionate as CCRIS reports not accessible to general public - Whether order for apology ought not to be granted - Rules of Court, O. 78 r. 3(3)
Credit Guarantee Corporation Malaysia Bhd v. SSN Medical Products Sdn Bhd
(Lim Yee Lan, Badariah Sahamid, Harmindar Singh Dhaliwal JJCA) [2017] 6 CLJ 129 [CA]

Negligence - Duty of care - Whether arose - Furnishing of credit information into Bank Negara Central Credit Reference Information System ('CCRIS') - Whether defendant submitted wrong information regarding plaintiff's financial status to CCRIS report - Whether plaintiff's non-performing loan status caused by defendant's negligent reporting - Whether defendant owed duty of care to plaintiff - Whether there was breach of duty - Whether plaintiff a delinquent borrower - Whether claim in negligence unsustainable
Credit Guarantee Corporation Malaysia Bhd v. SSN Medical Products Sdn Bhd
(Lim Yee Lan, Badariah Sahamid, Harmindar Singh Dhaliwal JJCA) [2017] 6 CLJ 129 [CA]


ARTICLES

LNS Article(s)

  1. LEARNING LAW [Read excerpt]
    by: DATO' ABDUL HAMID SAID* [2017] 1 LNS(A) liii

  2. [2017] 1 LNS(A) liii
    logo
    MALAYSIA

    LEARNING LAW
    by
    DATO' ABDUL HAMID SAID*

    After completing my teacher training course in the then Malayan Teachers Training College, Kirkby, Liverpool in December 1960, I was posted to Brunei to teach at the Brunei Teacher's Training College, Berakas, Brunei. In Brunei, I found that I did not have much to do, especially at night. To improve myself, I decided to read Law as I had always been interested in it.

    Not having much contact with friends who knew how to go about it, I applied to do an external degree at the London University. They would not admit me on the strength of the teaching certificate issued by the Liverpool University. The London University imposed a further requirement before admission: that I either pass 'A' level advanced mathematics or Logic at 'O' Level. I chose logic as I was not much of a mathematics man.

    . . .

    * Retired High Court Judge


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  3. 13 THINGS YOU MAY NOT KNOW ABOUT THE NEW AMENDMENTS TO THE BANKRUPTCY ACT 1967 [Read excerpt]
    by: CHOO DEE WEI* [2017] 1 LNS(A) liv

  4. [2017] 1 LNS(A) liv
    logo
    MALAYSIA

    13 THINGS YOU MAY NOT KNOW ABOUT THE NEW AMENDMENTS TO THE BANKRUPTCY ACT 1967
    by
    CHOO DEE WEI*

    Changes, they are coming for the Bankruptcy Act 1967. Whilst no date is fixed for the amendments to take effect, the changes are interesting. Here are 13 interesting aspects, in no particular order, on the changes to be made to the Bankruptcy Act.

    Number 1 – New Name

    The Bankruptcy Act will be called the Insolvency Act 1967.

    Number 2 – Usage of the term Bankruptcy Order

    In the Bankruptcy Act, when a person is made a bankrupt, two types of orders are made against him/her. These are called 'receiving order' and 'adjudication order' (known as AORO). Under the Insolvency Act, there is just a 'bankruptcy order'.

    . . .

    * LLB (Hons), BVC (Lincoln's Inn).


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LEGISLATION HIGHLIGHTS

Principal Acts

Number Title In force from Repealing
ACT 790 Courts (Modes of Commencement of Civil Actions) Act 2017 Not Yet In Force -
ACT 789 Self-Employment Social Security Act 2017 13 June 2017 [PU(B) 299/2017] -
ACT 788 Civil Aviation Authority of Malaysia Act 2017 Not Yet In Force -
ACT 787 Offences Relating To Awards Act 2017 Not Yet In Force -
ACT 786 Asian Infrastructure Investment Bank Act 2017 This Act comes into operation on the date the Agreement comes into operation for the Government of Malaysia pursuant to Article 58 of the Agreement -

Amending Acts

Number Title In force from Principal/Amending Act No
ACT A1536 Penal Code (Amendment) Act 2017 Not Yet In Force ACT 574
ACT A1535 Private Higher Educational Institutions (Amendment) Act 2017 Not Yet In Force ACT 555
ACT A1534 Bankruptcy (Amendment) Act 2017 Not Yet In Force ACT 360
ACT A1533 Consumer Protection (Amendment) Act 2017 Not Yet In Force ACT 599
ACT A1532 Labuan Business Activity Tax (Amendment) Act 2017 19 May 2017 ACT 445

PU(A)

Number Title Date of Publication In force from Principal/ Amending Act No
PU(A) 181/2017 Poisons (Amendment of Poisons List) (No. 3) Order 2017 20 June 2017 21 June 2017 ACT 366
PU(A) 180/2017 Poisons (Amendment of Third Schedule) Order 2017 19 June 2017 20 June 2017 ACT 366
PU(A) 179/2017 Price Control and Anti-Profiteering (Price Marking of Price-Controlled Goods) (No. 5) Order 2017 16 June 2017 17 June 2017 to 30 June 2017 ACT 723
PU(A) 178/2017 Price Control and Anti-Profiteering (Determination of Maximum Price) (No. 6) Order 2017 16 June 2017 17 June 2017 to 30 June 2017 ACT 723
PU(A) 177/2017 Control of Supplies (Controlled Articles) (No. 4) Order 2017 16 June 2017 17 June 2017 ACT 122

PU(B)

Number Title Date of Publication In force from Principal/ Amending Act No
PU(B) 320/2017 Notice Regarding The Supplementary Electoral Roll For The First Quarter of The Year 2017 (No. 3) That Has Been Certified 19 June 2017 20 June 2017 PU(A) 293/2002
PU(B) 319/2017 Appointment of Lock-Up To Be A Place of Confinement - National Anti-Drugs Agency, District of Kuala Muda, Kedah 19 June 2017 20 June 2017 ACT 537; ACT 638
PU(B) 318/2017 Appointment of Lock-Up To Be A Place of Confinement - National Anti-Drugs Agency, District of Dang Wangi, Kuala Lumpur 19 June 2017 20 June 2017 ACT 537; ACT 638
PU(B) 317/2017 Appointment of Lock-Up To Be A Place of Confinement - Syariah Court of The State of Kelantan, Kelantan 19 June 2017 20 June 2017 ACT 537
PU(B) 316/2017 Appointment of Lock-Up To Be A Place of Confinement - Papar Narcotics Addiction Rehabilitation Centre, Sabah 19 June 2017 20 June 2017 ACT 537; ACT 638

Legislation Alert

Updated

Act/Principal No. Title Amended by In force from Section amended
ACT 366 Poisons Act 1952 (Revised 1989) PU(A) 181/2017 21 June 2017 First Schedule
ACT 366 Poisons Act 1952 (Revised 1989) PU(A) 180/2017 20 June 2017 Third Schedule
ACT 56/1965 National Land Code PU(A) 172/2017 16 June 2017 except subparagraph 2(c)(vii) and paragraph 2(f); 1 January 2009 - subparagraph 2(c)(vii) and paragraph 2(f) Sixteenth Schedule
ACT 50 Medical Act 1971 PU(A) 166/2017 8 June 2017 Second Schedule
PU(A) 1/2012 Public Officers (Appointment, Promotion and Termination of Service) Regulations 2012 PU(A) 163/2017 1 May 2017 Regulations 4, 13A, 36 and 44

Revoked

Act/Principal No. Title Revoked by In force from
PU(A) 168/2017 Price Control and Anti-Profiteering (Determination of Maximum Retail Price For Petrol and Diesel) (No. 11) Order 2017 PU(A) 171/2017 15 June 2017
PU(A) 140/2017 Price Control and Anti-Profiteering (Determination of Maximum Retail Price For Petrol and Diesel) (No. 8) Order 2017 PU(A) 152/2017 25 May 2017
PU(A) 134/2017 Price Control and Anti-Profiteering (Determination of Maximum Retail Price For Petrol and Diesel) (No. 6) Order 2017 PU(A) 135/2017 11 May 2017
PU(A) 131/2017 Price Control and Anti-Profiteering (Determination of Maximum Retail Price For Petrol and Diesel) (No. 5) Order 2017 PU(A) 134/2017 4 May 2017
PU(A) 129/2017 Price Control and Anti-Profiteering (Determination of Maximum Retail Price For Petrol and Diesel) (No. 4) Order 2017 PU(A) 131/2017 27 April 2017