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CASE(S) HIGHLIGHT
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IKI PUTRA MUBARRAK v. KERAJAAN NEGERI SELANGOR
[2020] 6 CLJ 133
FEDERAL COURT, PUTRAJAYA
ABANG ISKANDAR FCJ
[ORIGINAL JURISDICTION NO: BKA-3-11-2019(W)]
14 MAY 2020
A motion to the Federal Court for leave to challenge the legislative competency of the State Legislature to enact Islamic criminal laws or matters pertaining to the precepts of Islam when such laws or matters are already being enacted and spelt out in the federal law, such as an application to challenge the competency of the State Legislature of Selangor to enact s. 28 of the Syariah Criminal Offences (Selangor) Enactment 1995 pertaining to "sexual offences against the order of nature" when such offence has already been dealt with by the Penal Code vide its ss. 377 to 377E, cannot be said to be frivolous or an abuse of process bearing in mind the doctrine of 'pith and substance', the meaning of arts. 4 (3) and 4(4) of the Federal Constitution and the import of Item 1 of the State List and Item 4(h) of the Federal List therein. The issue of whether the enactment of s. 28 has transgressed into the exclusive domain of the Federal Parliament, and therefore as to its constitutionality and validity, certainly deserves mature and comprehensive ventilation before the full court. The application has met the threshold required by art. 4(3) of the Federal Constitution and leave ought therefore to be granted.
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YOGANANTHY A S THAMBAIYA v. HARTA PUSAKA IDRIS OSMAN
[2020] 6 CLJ 151
FEDERAL COURT, PUTRAJAYA
AHMAD MAAROP PCA; RAMLY ALI FCJ; ALIZATUL KHAIR OSMAN FCJ;
ABANG ISKANDAR FCJ; IDRUS HARUN FCJ
[CIVIL APPEAL NO 02(f)-25-04-2018(J)]
20 NOVEMBER 2019
An agreement is void if its object is immoral or opposed to public policy, and in that regard s. 24(e) of the Contracts Act 1950, which voids a contract for being immoral or opposed to public policy, has no nexus to the element of illegality as so provided for in s. 24(a) of the Act. Be that as it may, one universal element in an agreement that weighs considerably against public policy is that of honesty or the lack of it. Where therefore an employee of a Receiver and Manager, in handling the affairs of a stockbroking company under receivership, has personally through his wife given financial assistance to the company to salvage it from financial difficulties in return for a substantial shareholding in the company, and thereafter, to effectuate the transfer of shares, secured a Statutory Declaration and a Loan Agreement from the company and its shareholder, the transaction is clearly inflicted with conflict of interest and contrary to public policy, and caught by s. 24(e) of the Contracts Act 1950. Such a transaction is injurious to the public welfare, is nothing but a sham and is patently void and unenforceable in law.
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PP lwn. LEE KIM TUYEN
[2020] 6 CLJ 378
MAHKAMAH TINGGI MALAYA, JOHOR BAHRU
ABU BAKAR KATAR H
[PERMOHONAN SEMAKAN JENAYAH NO: JA-43-9-04-2020]
06 MAY 2020
Perkara 8(1) Perlembagaan Persekutuan memberi jaminan 'sama rata di sisi undang-undang' dan hak perlindungan undang-undang tanpa mengira sama ada seseorang itu warganegara Malaysia atau tidak. Oleh itu, hak mendapat tawaran jaminan tidak boleh dinafikan terhadap seseorang tertuduh hanya atas alasan dia seorang warganegara asing, khususnya apabila kesalahan yang dia lakukan melibatkan kesalahan yang boleh dijamin.
Jumlah kesalahan yang dilakukan oleh seseorang tertuduh bukan fakta yang diambil kira dalam mempertimbangkan satu permohonan jaminan. Jika kesalahan yang dilakukan tertuduh lebih daripada satu, ini tidak bermakna jaminan tidak dibenarkan sama sekali. Sebaliknya, jumlah jaminan yang lebih tinggi boleh diberi.
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JUDICIAL QUOTES
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“Based on the above principles and considering exhs. P1 and P2, I find that the charge was badly framed. It was not consistent with facts. Notwithstanding that the accused had pleaded guilty to the charge in presence of his counsel, all the three court officers who are the Deputy Public Prosecutor, the defense counsel and the Magistrate partook in a comedy of not just errors but cursory conduct. The Deputy Public Prosecutor was careless in ensuring that the charge was consistent with facts, the defense counsel failed in discharging his duty in ensuring that his client did not plead guilty to an offence that was based on unclear facts and the Magistrate failed in discharging her duties as laid out in Chin Ban Keat v. Rex [1949] 1 LNS 14.”
“When recording the facts the Magistrate will also have to record the accused's admission or denial of them and if the facts admitted do not constitute the offence charged the Magistrate will then have to consider whether to discharge the accused or enter a plea of not guilty and proceed to trial.” – per Mohd Radzi Abdul Hamid JC in PP v. Muhammad Azrul Zainal [2020] 3 CLJ 386
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ARTICLE HIGHLIGHT
Lecturer called ‘mad as a box of frogs’ wins constructive dismissal claim
UKEmployment
Former BPP University lecturer's claim for constructive unfair dismissal upheld
A former university lecturer has successfully brought a constructive unfair dismissal claim at an employment tribunal after the education establishment failed to reduce her workload despite her mental health struggles.
Elizabeth Aylott, who suffered from anxiety and depression and was subsequently diagnosed with Autism Spectrum Disorder, repeatedly raised issues about her workload at BPP University in London and her problems coping with it.
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Climate battles are moving into the courtroom, and lawyers are getting creative
GLOBALEnvironment
Lawyers get creative in filing climate-related lawsuits demanding action
With the slow pace of international climate negotiations, lawyers from Switzerland to San Francisco are increasingly filing lawsuits demanding action.
And they are getting creative — using new legal arguments to challenge companies and governments before a judge.
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French worker awarded €40,000 because his job was boring
EUROPE
Employment
Former manager who had suffered from 'bore-out' awarded €40k
An employee of a luxury perfumes manufacturer has been awarded €40,000 in compensation by a French court after it was found to have inflicted extreme boredom on him, which amounted to harassment.
Frédéric Desnard had so little to do at his job at Interparfums – which manufacturers Jimmy Choo and Karl Lagerfeld perfumes, among other designer brands – that he suffered from “bore-out”, which caused his health to deteriorate.
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City worker who blew the whistle on financial malpractice wins unfair dismissal claim
UKEmployment
Former head of compliance for online brokerage awarded £75k payout
A City executive who blew the whistle on financial malpractice and was subjected to ongoing victimisation after her employment ended was unfairly dismissed, a tribunal has ruled.
The east London tribunal found Ms Svetlana Sinelnikova was unfairly dismissed when foreign exchange broker ActivTrades suspended her for gross misconduct after she attended a work trip while signed off sick. It concluded that the company attempted to “attack her credibility” following Sinelnikova blowing the whistle on financial malpractice.
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In hard times, unions as troubleshooters, not troublemakers
EmploymentUnions should be seen as troubleshooters, not troublemakers
The recent dismal predictions about the job market and the economy have made unions more relevant than ever, despite their waning influence over the past decades, a former trade union leader says.
P Arunasalam said with retrenchments expected to affect 12% of employees, unions could help buffer the situation by ensuring that those who are axed are not denied compensation but instead treated fairly and considered for re-employment.
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