MALAYAN BANKING BHD v. PUNJAB NATIONAL BANK
FEDERAL COURT, PUTRAJAYA
NALLINI PATHMANATHAN FCJ; ZALEHA YUSOF FCJ; HARMINDAR SINGH DHALIWAL FCJ
[CIVIL APPEAL NO: 02(f)-75-11-2020(W)]
23 MAY 2022
In dealing with letter of credit (LC) transactions between the trading parties and the issuing and negotiating banks, including transactions under the Uniform Customs and Practice for Documentary Credits as issued by the International Chambers of Commerce vide its ICC Publication No. 600, one must bear in mind that the duty of a bank to negotiate under the LC is not subject to claims or defences taken under the underlying contract, that banks deal with documents and not with goods, services or performance to which the documents relate, that the issuing bank (herein Punjab National Bank), is irrevocably bound to honour the LC as of the time it issues the same, and that the issuing bank's undertaking to reimburse the nominated or negotiating bank is independent of the former's undertaking to the beneficiary. On the facts, the Court of Appeal erred in relieving Punjab National Bank of its duty to reimburse Malayan Banking Berhad for the USD1,983,763.65 the latter paid the seller under the LC; the documents as presented to and examined by MBB appeared on their face to constitute a complying presentation, more so when the bills of lading presented paralleled to Ocean Bills of Lading, and not to Freight Forwarder Bills as complained. Since the documents presented to MBB were not discrepant, and since the Notice of Refusal to reimburse by Punjab National Bank, which is a strict requirement of international LC transactions, is also faulty, Punjab National Bank cannot avoid its obligation to reimburse.
LIM LIP ENG v. ONG KA CHUAN
FEDERAL COURT, PUTRAJAYA
ROHANA YUSUF PCA; AZAHAR MOHAMED CJ (MALAYA); NALLINI PATHMANATHAN FCJ; ZALEHA YUSOF FCJ; HASNAH MOHAMMED HASHIM FCJ; MARY LIM FCJ; HARMINDAR SINGH DHALIWAL FCJ
[CIVIL APPEAL NO: 02(i)-25-03-2020(W)]
27 APRIL 2022
A political party such as the MCA in this appeal has no cause of action in defamation. Political parties, as registered societies, have no existence of their own separate from their members and are dependent on their members to sue or be sued; consequently, they do not have the requisite reputation to complain of or to be protected within the spheres of the law of defamation. It is also not right nor is it in the public interest to put the public in fear of a defamation suit by a political party; a political party must not be thin-skinned and must always be open to public criticism.
WANG KANG XIANG v. HEE CHAI HUI
HIGH COURT MALAYA, JOHOR BAHRU
AHMAD MURAD ABDUL AZIZ JC
[CIVIL APPEAL NO: JA-12BNCVC-16-12-2020]
10 APRIL 2022
The award of RM150,000 as general damages and RM100,000 as exemplary damages against the defendant for breach of promise to marry is flawed and needed to be reassessed. The issue of quantum aside, awarding punitive damages in the absence of clear aggravating circumstances or reprehensible conduct on the part of the defendant is unwarranted and uncalled for; the trial court had thus erred in awarding exemplary damages. The award of general damages too had not factored in the defendant's means, or that it could cause the defendant financial ruin, or that it was manifestly disproportionate to his culpability; it ought to be reduced to RM50,000.
NURINAH ALIP & ANOR v. EDWIND ES BANTING & ANOR
HIGH COURT SABAH & SARAWAK, KOTA KINABALU
AMELATI PARNELL JC
[CIVIL APPEAL NO: BKI-12B-3-11-2020]
04 OCTOBER 2021
Sogit kampung and sogit mangsa, as an adat of the Kadazandusun of Penampang, are meant to appease the family of the victims in a misadventure or misfortune, and its parameters must remain finite as such and not be unnecessarily extended or magnified. It follows that for the appellants pedestrians herein, the fact that they have accepted and retained sogit kampung monies from the respondents after being hit by a vehicle driven by the first respondent and owned by the second respondent, were not restrained by law from filing an action claiming for damages against the latter. Conversely, for the respondents, payment of such monies cannot amount to 'accord and satisfaction' and cannot by itself discharge them from further liability.
- Guangzhou Light Industry & Trade Group Ltd & Ors v. Lintas Superstore Sdn Bhd  1 LNS 1112 [FC]
- Khairy Jamaluddin v. Dato' Seri Anwar Ibrahim & Another Appeal  1 LNS 1072 [FC]
- Malayan Banking Berhad v. Punjab National Bank [FC]
- Tenaga Nasional Berhad v. Tan Sooi Lek @ Tan Choon Guan & Ors  1 LNS 1023 [FC]
- Lai King Lung v. Perbadanan Pengurusan Anjung Hijau & Anor  1 LNS 744 [CA]
- Tan Wee Ching v. Da Tong Shi Je Supplies & Services Sdn Bhd & Another Appeal  1 LNS 732 [CA]
- Techrew Sdn Bhd v. Nurhamizah Hamzah & Ors  1 LNS 735 [CA]
“The principles on which an appellate court is allowed to receive additional evidence were earlier enunciated in the case of R v. Parks  3 All ER 633 (“R v. Parks”), which was later approved by the House of Lords in the case of R v. Pendleton  1 WLR 72.
Based on the above-cited cases, the appellant must cumulatively satisfy all the four requirements propounded in R v. Parks and the prerequisite in s. 61 of the CJA that it is necessary for the justice of the case in order to be allowed to adduce the additional evidence. Further, only in the most exceptional circumstances will the court receive additional evidence, and the matter is left entirely to the discretion of the appellate court if necessary in the interest of justice.” – Per Ab Karim Ab Jalil, Has Zanah Mehat, Vazeer Alam Mydin Meera JJCA in Dato' Sri Mohd Najib Hj Abd Razak v. PP  4 CLJ 231
“Judicial review is not merely procedural but a substantive and immutable component of judicial power - one which is inherent and which defines the very core function of an independent Judiciary. It is exclusively a judicial power of the civil superior courts.
Reading s. 66A of the Administration of the Religion of Islam (State of Selangor) Enactment 2003 as it stands and upon analysing the basis for judicial review in this country, I find that s. 66A of the ARIE 2003 is unconstitutional and void, as it is a provision which the SSLA has no power to make. I accordingly find that the petitioner has overcome the threshold of the presumption of constitutionality.” – per Tengku Maimun Tuan Mat CJ in SIS Forum (Malaysia) v. Kerajaan Negeri Selangor; Majlis Agama Islam Selangor (Intervener)  3 CLJ 339
“I think it needs no explanation that a writ of possession and a committal action are execution or enforcement proceedings to deal with non-adherences to any judgment or order of the court. A writ of possession is not by itself an order of the court. As such, a failure to adhere to a writ of possession cannot be a basis to initiate contempt proceedings within the contemplation of O. 45 of the RC 2012. The very writ of possession or execution is meant and designed to enforce any issues of compliance with any judgment or order of the court. It is manifest that there are two prescribed methods of enforcement under O. 45 r. 3, namely by way of writ of possession and where r. 5 applies, an order of committal. The entire scheme of O. 45, in particular rr. 3 and 5 concern the execution of a judgment or an order of the court.” – per Mohd Nazlan Ghazali J in Harta Bitara Development Sdn Bhd v. Khairuddin Hj Mustapa (President Pertubuhan Seni Silat Lincah Malaysia)  3 CLJ 106
"The word “good faith” has no exhaustive meaning. Generally, good faith is understood to mean honesty or sincerity of intention. The common features to look for in determining a purchaser of good faith are as follows (i) good faith does not simply mean an absence of fraud, deceit or dishonesty; (ii) knowledge of a dispute as to the ownership of property and knowledge of fraud allegation vitiate good faith; and (iii) elements of carelessness and negligence negate good faith."
"We disagree with learned counsel for Maybank's submission. In our view, a reasonable, prudent purchaser in Maybank's position would investigate as to what, why and how the plaintiffs had alleged there was a fraud. Surely, Maybank ought to take precautions to find out the truth of the matter before deciding to grant a loan to the second defendant. If Maybank conducted an investigation, it would discover that the documentary evidence relied upon by Maybank to effect the transfer of the properties to Wong Ing Tong were tainted with forgeries. Despite having actual knowledge of the dispute of ownership and the allegation of fraud, Maybank treated the caveats as insignificant and had them removed. Maybank then proceeded to grant a loan to the second defendant and create the charges. In the circumstances of this case, we find Maybank had not acted reasonably and fairly. Our view is Maybank's conduct excludes good faith. Therefore, we find the learned HCJ had not erred in making a finding that Maybank was not a purchaser in good faith."
– per Hadhariah Syed Ismail JCA in Wong Ing Tong v. Yap Piat Eng & Anor And Other Appeals  4 CLJ 882
“Naturally, there is a difference between the making of a fatwa (as in the procedure and law to adhere to) and the substantive contents of the fatwa. As regards the procedure, it necessarily requires compliance with written law and the failure to do so might result in the issuance of public law remedies that can only be issued by the civil superior courts. The contents of the fatwa and their interpretation are a different story and a matter purely for the jurisdiction of the Syariah courts to the extent that it relates to “hukum syarak” or personal law and not matters which objectively might be taken to contradict any written law (Federal or State statutes or even the FC for that matter).”
“Thus, simply put, if the vires of any fatwa or the conduct of the Fatwa Committee is challenged purely on the basis of constitutional or statutory compliance, then it is a matter for the civil courts. If the question pertains to the matters of the faith or the validity of the contents of the fatwa tested against the grain of Islamic law, then the appropriate forum for review or compliance is the Syariah courts.” – per Tengku Maimun Tuan Mat CJ in SIS Forum (Malaysia) v. Kerajaan Negeri Selangor; Majlis Agama Islam Selangor (Intervener)  3 CLJ 339
( as of 16 June 2022)
(as of 07 April 2022)
- PU(A) 449/2021
Road Transport (Prohibition of Use of Road) (Federal Roads) (No. 15) Order 2021
- PU(A) 159/2012
Copyright (Licensing Body) Regulations 2012
- PU(A) 127/2017
Malaysia Deposit Insurance Corporation (Order of Priority For Payments of Different Categories of Islamic Deposits, Determination and Classification of Assets and Application of Disposal Proceeds of Assets in the Winding Up of Deposit-Taking Member) Regulations 2017
- PU(A) 182/2018
Registration of Pharmacists (Amendment of First Schedule) Order 2018
- PU(A) 100/2013
Labuan Business Activity Tax (Exemption) (No. 2) Order 2013
- PU(A) 204/2022
Customs (Anti-Dumping Duties) (Expedited Review) (No. 2) 2021 (Revocation) Order 2022
- PU(A) 203/2022
Price Control And Anti-Profiteering (Price Marking Of Price-Controlled Goods) (No. 6) Order 2022
- PU(A) 202/2022
Price Control And Anti-Profiteering (Determination Of Maximum Price) (No. 7) Order 2022
- PU(A) 201/2022
Loans Guarantee (Bodies Corporate) (Remission Of Tax And Stamp Duty) (No. 6) 2020 (Amendment) Order 2022
- PU(A) 200/2022
Customs (Anti-Dumping Duties) (No. 2) 2019 (Amendment) Order 2022
- PU(B) 307/2022
Appointment Of Date Of Coming Into Operation
- PU(B) 306/2022
Appointment Of Date Of Coming Into Operation
- PU(B) 305/2022
Appointment Of Assistant Registrar Of The Industrial Court
- PU(B) 303/2022
Appointment Of Senior Assistant Directors Of Industrial Relations
- PU(B) 302/2022
Appointment Of President Of The Industrial Court
- Bills 2021
- Government Of Kelantan Gazette - Syariah Criminal Code (Ii) (1993) 2015
- Legislation: An Overview
- Legislation: FAQs
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- Police suspected Syed Saddiq, two others, as culprits behind missing RM250,000 22/06/2022
- Verdict on govt's appeal in citizenship case refixed for Aug 5 22/06/2022
- Cradle Fund CEO's murder: Samirah, two teenagers acquitted 21/06/2022
- Prosecution to prove Syed Saddiq's offences malicious, dishonest 21/06/2022
- Anifah Aman denies receiving money from UKSB, says he doesn't even know who they are 20/06/2022
- Fourteen charged with being 'Chandra Gang' members 20/06/2022
- Civil servant claims trial to 46 bribery charges in KK 20/06/2022
- ASP, Corporal among 5 charged with smuggling migrants from Myanmar 20/06/2022
WHAT CONSTITUTES ACTING OR PRACTISING AS A SOLICITOR?*
by Alvin Chen**
This article analyses the contrasting judicial approaches in recent Singapore and Malaysian decisions on what amounts to acting or practising as a solicitor. The author suggests that although the Singapore framework is sound, certain aspects of its application should be clarified.
In Singapore, the unauthorised practice of law is prohibited by section 33 of the Legal Profession Act 1966 (Singapore LPA), which provides for criminal sanctions for various offences that can be committed by persons essentially masquerading as practising lawyers to provide legal services. The regulatory regime is founded on a "negative" definition, which deems all persons whose names are not on the roll of advocates and solicitors and who do not have valid practising certificates as "unauthorised persons". As observed in the vintage case of Turner (East Asia) Pte Ltd v. Builders Federal (Hong Kong) Ltd (Turner), the "primary object of the [Singapore LPA] is to protect the public from claims to legal services by unauthorised persons".
IS AFFORDABLE ARBITRATION, JANAB'S ARBITRATION MOOT COURT AND AWARD WRITING THE WAY FORWARD?
by Prof. Datuk Dr. Hj. Hamid Sultan bin Abu Backer*
This article will profess that Syariah family law disputes filed in Syariah Court, with the consent of parties as well as Syariah Court, can be settled by arbitration provided:
(a) A Syariah lawyer, professor, lecturer, Syariah Court officer, or any competent person can be the arbitrator, with the parties having the option of a panel of three arbitrators. If it is a panel, each party is to nominate one arbitrator who can also be a member of his family and the Chairman to be chosen by both co-arbitrators jointly.
(b) The arbitration proceedings must be facilitated by the court or any other arbitration facility provider associated with a university.
(c) The arbitration process shall be private and confidential.
(d) The Malaysian Arbitration Act 2005 ('AA 2005'), the relevant Syariah Court laws as well as rules and law of evidence as directed by the Syariah Court shall be made applicable to the arbitration proceedings.
(e) Prior to the arbitration, the parties shall agree to give the Syariah Court an undertaking for the terms of the arbitration award to be entered as a consent judgement in the Syariah Court proceedings if the Syariah Court judge deems fit and proper, and it shall thereafter become the Syariah Court judgement and enforceable under the Syariah Court procedure.
by Mohd Hakim Musa*
Corporate governance ('CG') can be described as the rule and framework used to coordinate and deal with the business and matters of the organisation towards encouraging business growth and corporate responsibility with the utmost aim of producing or fulfilling long-term shareholder value while considering the interest of other stakeholders. Good corporate governance has an element of accountability, responsibility, fair treatment, transparency, ethical value and a vision to create long-term value. In corporate governance, the agency and stewardship theories provide a framework for explaining the board's and directors' responsibilities.
It is an elementary knowledge that in Malaysia, the board and its directors, according to sections 2 and 210 of the Companies Act 2016, are responsible for the management of the company; thus, de jure directors, de facto directors, shadow directors as well as non-executive directors are subjected to the directors' duties. The interpretation would, of course, include Chief Executive Officer ('CEO'), Chief Operating Officer ('COO') and Chief Financial Officer ('CFO').
by Mohd Hakim Musa*
Corporate governance generally refers to the relationship among various members, including the management team, the Board of Directors, and the shareholders. The Organisation for Economic Co-operation and Development ('OECD') defined it as a set of relationships that includes other stakeholders. The World Bank characterizes corporate governance as a set of instruments granted to shareholders to exert influence on managers in order to maximize the value of shareholders' shares and to fixed claimants in order to control the agency costs of equity. This would make us understand that most of the definitions of corporate governance would imply the principal-agent model, which, in the eye of agency theory, would refer to "a system of law and sound approaches by which corporations are directed and controlled focusing on the internal and external corporate structures with the intention of monitoring the actions of management and directors and thereby mitigating agency risks which may stem from the misdeeds of corporate officers".
by Nur Azlina Mohamad Zahari[i] Ramalinggam Rajamanickam[ii] Rohaida Nordin[iii]
Akses kepada bangunan awam merupakan antara hak orang kurang upaya yang dinyatakan dalam Akta Orang Kurang Upaya 2008 [Akta 685]. Hak akses orang kurang upaya kepada bangunan awam tersebut adalah berdasarkan prinsip kesamarataan sebagaimana yang terkandung dalam perkara 8 Perlembagaan Persekutuan. Sebelum kewujudan Akta Orang Kurang Upaya 2008, Malaysia telah meratifikasi Konvensyen Pertubuhan Bangsa-Bangsa Bersatu tentang Hak Orang Kurang Upaya pada 19 Julai 2010, dengan reservasi terhadap perkara 15 (larangan seksaan dan layanan buruk) dan perkara 18 (hak kepada kebebasan pergerakan dan kewarganegaraan). Walau bagaimanapun, golongan orang kurang upaya di Malaysia masih dilanda kesukaran untuk mendapatkan akses yang sewajarnya kepada bangunan awam dan menyebabkan golongan orang kurang upaya telah dinafikan hak mereka dan tidak dapat mengambil bahagian secara berkesan dan menyeluruh dalam masyarakat. Isu yang timbul di sini ialah adakah terdapat peruntukan-peruntukan dalam Akta Orang Kurang Upaya 2008 [Akta 685] berkaitan dengan hak akses kepada bangunan awam di Malaysia? Sejauh manakah orang kurang upaya boleh mengemukakan tuntutan di mahkamah sekiranya berlaku penafian hak akses mereka terhadap bangunan awam di Malaysia? Persoalan ini perlu dijawab dengan menggunakan kaedah kualitatif secara analisis undang-undang, iaitu dengan meneliti peruntukan-peruntukan dalam Akta Orang Kurang Upaya 2008 [Akta 685] berkaitan dengan akses kepada bangunan awam dan hak orang kurang upaya untuk membuat tuntutan di mahkamah sekiranya berlaku pelanggaran terhadap hak mereka. Penulisan ini akan mengenal pasti peruntukan-peruntukan dalam Akta Orang Kurang Upaya 2008 [Akta 685] berkaitan dengan hak akses kepada bangunan awam di Malaysia dan mencadangkan perkara-perkara yang perlu dilakukan untuk meningkatkan jaminan hak orang kurang upaya terhadap akses kepada bangunan awam di Malaysia.
Australia’s minimum wage earners to get $40 a week pay rise
Minimum wages will increase by at least $40 a week, with the hourly pay rate lifting from $20.33 to $21.38, the Fair Work Commission has ruled. The commission handed down its decision in the annual wage review on Wednesday, granting a 5.2% increase to the national minimum wage and 4.6% for award minimums, amid a tight labour market and skyrocketing inflation. The decision sets the pay of at least 2.7 million Australians on the national minimum or awards and will come into effect from 1 July. But the commission ruled the increase will be delayed to 1 October in the aviation, tourism and hospitality sectors because of “exceptional circumstances”, including their slower recovery from the Covid recession.
Malaysian companies reject orders as labour shortage bites
Malaysian companies from palm oil plantations to semiconductor makers are refusing orders and forgoing billions in sales, hampered by a shortage of more than a million workers that threatens the country’s economic recovery. Despite lifting a Covid-19 freeze on recruiting foreign workers in February, Malaysia has not seen a significant return of migrant workers because of slow government approvals and protracted negotiations with Indonesia and Bangladesh over worker protection, say industry groups, companies and diplomats.
UK launches new visa for world’s top graduates
Putrajaya, Tokyo ink deal to send skilled Malaysians to work in Japan
A joint committee will be set up to implement the memorandum of cooperation (MoC) to send skilled Malaysian workers to work in Japan, says human resources minister M Saravanan. The MoC was finalised between Saravanan and Japanese justice minister Yoshihisa Furukawa on Thursday. The exchange of documents was witnessed by Prime Minister Ismail Sabri Yaakob and his Japanese counterpart, Fumio Kishida, yesterday. Saravanan said in a statement today that his ministry would lead the joint committee for Malaysia. “The MoC will act as the best platform for eligible skilled Malaysian workers to work in the advanced technology-based ecosystem in Japan,” he said.
From baristas to inspectors: Singapore’s robot workforce plugs labour gaps
After struggling to find staff during the pandemic, businesses in Singapore have increasingly turned to deploying robots to help carry out a range of tasks, from surveying construction sites to scanning library bookshelves. The city-state relies on foreign workers, but their number fell by 235,700 between December 2019 and September 2021, according to the manpower ministry, which notes how COVID-19 curbs have sped up "the pace of technology adoption and automation" by companies. At a Singapore construction site, a four-legged robot called "Spot", built by U.S. company Boston Dynamics, scans sections of mud and gravel to check on work progress, with data fed back to construction company Gammon's control room.
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