MATRIX GLOBAL EDUCATION SDN BHD v. FELIX LEE ENG BOON
COURT OF APPEAL, PUTRAJAYA
LEE SWEE SENG JCA; SUPANG LIAN JCA; NORDIN HASSAN JCA
[CIVIL APPEAL NO: W-01(A)-477-09-2020]
09 DECEMBER 2022
The moment an employee enters into negotiations for a severance package and later puts in his letter of resignation the terms agreed upon, there is a concluded contract. An employee cannot have the best of both worlds; negotiating and accepting the terms of a separation with the employer and then, at the same time, claiming at the Industrial Court that he had been constructively dismissed.
SIVANESAN ACHALINGAM v. PATHMANATHAN KUPPUSAMY;
MAJLIS PEGUAM (INTERVENER)
COURT OF APPEAL, PUTRAJAYA
YAACOB MD SAM JCA; RAVINTHRAN PARAMAGURU JCA; HASHIM HAMZAH JCA
[CIVIL APPEAL NO: W-02(A)-561-03-2021]
01 DECEMBER 2022
(i) The proper filing of Forms A and B will determine whether the representative of either party has the locus standi to appear before the court, in this case, the Industrial Court, as that party's representative. A failure to do so would mean that the solicitor is not representing the aggrieved party and is therefore not obligated to inform the latter of the trial dates of the case; (ii) Although it is trite that the standard of proof to establish misconduct is beyond reasonable doubt, a disciplinary proceeding is not subject to the rigid and strict adversarial procedures in criminal trials.
HEMRAJ & CO SDN BHD v. TENAGA NASIONAL BHD
FEDERAL COURT, PUTRAJAYA
ABDUL RAHMAN SEBLI FCJ; ZABARIAH MOHD YUSOF FCJ; HASNAH MOHAMMED HASHIM FCJ
[CIVIL APPEAL NO: 02(f)-65-11-2021(W)]
13 DECEMBER 2022
A non-delegable duty of care, a no fault strict liability tort, must be imposed only in the most exceptional circumstances. Routine excavation works carried out by homeowners through independent contractors could not be described as an extraordinarily hazardous activity, thereby, the homeowner could not be held to owe a non-delegable duty of care to a public utilities company for the negligence of the independent contractors. As a matter of policy, to hold that routine residential construction works are subject to non-delegable duty would expose homeowners to an indeterminate liability for the tortious acts of their independent contractors, whose manner of work are beyond their control.
SYED ISKANDAR SYED JAAFAR v. KERAJAAN MALAYSIA & ORS
HIGH COURT MALAYA, KUALA LUMPUR
WAN AHMAD FARID SALLEH J
[ORIGINATING SUMMONS NO: WA-24-63-11-2020]
05 JULY 2022
The constitutional question sought to be referred to the Federal Court, in this case, pertaining to the application of the doctrine of basic structure, in light of the conflicting Federal Court decisions on the same, would have a direct bearing on the matter of dispute before the High Court; having the implication of bringing the dispute to an end without further deliberation by the High Court, hence depriving the parties of the right of appeal. The application, if allowed, would also render the Federal Court to assume original jurisdiction not anticipated under art. 128(1) of the Federal Constitution.
- Perbadanan Pengurusan Sunrise Garden Kondominium v. Sunway City (Penang) Sdn Bhd & Ors And Another Appeal  1 LNS 98 [FC]
- Tan Kah Fatt & Anor v. Tan Ying  1 LNS 63 [FC]
- Ranjan Paramalingam & Anor v. Persatuan Penduduk Taman Bangsar Kuala Lumpur  1 LNS 30 [CA]
- Choongcons (Penang) Sdn Bhd v. Ms Elevators Engineering Sdn Bhd  1 LNS 29 [CA]
- Appraisal Property Management Sdn Bhd & Ors v. Singham Sulaiman Sdn Bhd  1 LNS 9 [CA]
- Datuk Seri Anwar Ibrahim v. Mohd Khairul Azam Abdul Aziz  1 LNS 19 [CA]
- Chow Kum Yuen v. PP  1 LNS 21 [CA]
- Cheok Chuan Huei v. PP  1 LNS 15 [CA]
- Low Ean Nee v. Low Cheng Teik & Ors  2 CLJ 19 [CA]
- Aizat Abdullah Othman v. PP  1 LNS 28 [CA]
"The structure of the legal detentive power in s. 3 of the Dangerous Drugs (Special Preventive Measures) Act 1985 is expressed to be sequential in nature. The inference to be drawn from the provisions of s. 3 is clear. Parliament acknowledges the drastic power given to restrict the liberty of a subject without having to bring him to a court and has put in place safeguards by expressly providing that this power or arrest is placed in the hands of a police officer with the rank of at least that of an inspector, and authority for each incremental period of detention having to be sought from a correspondingly higher authority up till that of the Minister. Each sequential progression must be scrupulously complied with by those entrusted with such power and the exercise of this power within the framework of the preventive detention laws in the DDSPMA is objectively justiciable.
In the instant case, whilst the element of having associated or is being involved in trafficking in dangerous drugs activities together with a substantial body of persons is present for the applicant's further detention for a further 14 days pursuant to s. 3(2)(c) of the DDSPMA, however, this element for purposes of his arrest, as well as his subsequent detention for more than 24 hours, followed by a further 48 hours was noticeably absent. It follows that his arrest and his subsequent detention is unlawful." – per Su Tiang Joo JC in Vegnesh Ramnaidu v. Ketua Polis Negara, Malaysia & Anor  10 CLJ 981
Having scrutinised the provisions of ss. 80(8) & (9) of the LPA and the CF Rules, we do not find any provision therein that gives the respondent the power to issue any guidelines restricting the application of the provisions in ss. 80(8) & (9) of the LPA and make it applicable only to the dishonesty of a certain class of advocates and solicitors, ie, sole proprietors. It is our considered view that the respondent does not have such powers to issue the guidelines and whittle down the ambit of ss. 80(8) & (9) of the LPA and restrict the claims only to acts of dishonesty of advocates and solicitors who are sole proprietors.
In fact, we found that the respondent does not have powers to issue any guidelines in the nature of the guidelines at all. In order to issue such guidelines, there must be express provision in the LPA authorising the respondent to issue them. However, there is no such express power found in the LPA.
At best, the respondent can only make rules pursuant to s. 80(12) of the LPA, and that too for the limited purposes stated therein, which is in respect of procedure for making a claim from the compensation fund. Such rules must be confined to procedural matters and cannot affect substantive rights of parties. - per Vazeer Alam Mydin Meera JCA in Michael Joseph Carvalho & Anor v. Majlis Peguam Malaysia  9 CLJ 849
“In comparison to the facts in PP v. Rosmah Mansor  9 CLJ 83, in that case the first delivery of RM5 million in cash on 20 December 2016 was split into two bags of RM2.5 million each. For the second delivery of RM1.5 million, the monies were put into two knapsacks. In the present case, the prosecution did not produce any sample envelope. No evidence was led to show the size of the envelope used. I simply cannot imagine what envelope in what size could fit the SGD600,000 in cash which was equivalent to around RM1.6 million at the material time. Surprisingly, PW17, the creator of the ledger admitted during cross-examination that the second delivery of RM3 million in cash by way of a luggage was an afterthought. This admission of afterthought by the key prosecution witness ie, PW17 is more than sufficient for me to find that PW17 was with zero credibility.
To further support my finding, PW17 on one hand testified that he would record the payments on the same day or the next day of payment, however it has been shown that most of the 'remark' columns in the ledger were left blank. PW15 further agreed that the blank 'remark' columns do not show that the monies were paid to the accused. The blank 'remark' columns give rise to a possible inference as suggested by the defence that the monies could have been distributed among the three of them ie, PW15, PW16 and PW17 as they maintained a luxurious lifestyle. Each of PW15, PW16 and PW17 had one unit of property in Pavilion, PW16 also owned one bungalow house in Putrajaya, one semi-detached house in Cyberjaya, two Range Rovers, expensive motorcycles and tax payment in millions. Without strong evidential support, I simply cannot consciously make a finding that the monies were in fact received by the accused as suggested by the prosecution.” – per Mohd Yazid Mustafa J in PP v. Ahmad Zahid Hamidi  9 CLJ 713
“We now offer a number of observations. First, these cases demonstrate that whilst the application of the maxim ex turpi causa non oritur actio means that public policy would defeat any claim which is premised on illegality, a balance must still be drawn based on the specific facts and circumstances of each case.
Secondly, the application of the said maxim to cases of tortious liability is very limited. We are not aware, and neither have we been referred to any case authorities in our jurisdiction which clearly hold that the non-compliance with the said provisions under the RTA (Road Transport Act 1987) are a form of illegality in respect of which public policy would deny the claimant (wrongdoer vis-à-vis the RTA) from pursuing his right to claim compensation for the tortious liability of the negligent party.
Thirdly, there is no denying that, as mentioned earlier, case law authorities are unequivocal in affirming the position that the absence of driving licence, road tax and insurance does not make a motorist negligent.” - per Mohd Nazlan Ghazali JCA in Ahmad Zulfendi Anuar v. Mohd Shahril Abdul Rahman  9 CLJ 307
“Otherwise, the constitutional right to freedom of expression would be rendered illusory. It would even imperil academic research. In this context, we note that the Minister had disagreed with the view expressed in the comic book that diplomatic relations between the Ming Dynasty of China and the Malacca Sultanate enabled the latter to prosper.” – per Ravinthran Paramaguru JCA in Hew Kuan Yau v. Menteri Dalam Negeri & Ors  8 CLJ 880
( as of 03 February 2023)
- PU(A) 259/2016
Electricity Supply (Authorization to Be A Single Buyer in Peninsular Malaysia) Order 2016
- PU(A) 258/2016
Electricity Supply (Authorization to Be A System Operator in Peninsular Malaysia) Order 2016
- PU(A) 449/1991
Federal Roads (Felda Scheme) Order 1991
- ACT 716
Wildlife Conservation Act 2010
- ACT 45
Judges' Remuneration Act 1971
(as of 25 January 2023)
- PU(A) 370/2022
Ministers of the Federal Government Order 2022
- PU(A) 373/2022
Price Control and Anti-Profiteering (Determination of Maximum Price) (No. 15) Order 2022
- PU(A) 286/2022
Road Transport (Prohibition of Use of Road) (Federal Roads) (No. 15) Order 2022
- PU(A) 224/2022
Price Control and Anti-Profiteering (Price Marking of Price-Controlled Goods) (No. 7) Order 2022
- PU(A) 282/2022
Price Control and Anti-Profiteering (Determination of Maximum Price) (No. 10) Order 2022
- PU(A) 31/2023
Windfall Profit Levy (Oil Palm Fruit) Order 2023
- PU(A) 30/2023
Syarie Legal Profession (Federal Territories) (Fees) Rules 2023
- PU(A) 29/2023
Judges' Remuneration (Amendment Of Second Schedule) Regulations 2023
- PU(A) 28/2023
Employees' Minimum Standards Of Housing, Accommodations And Amenities (Vesting Of Powers) Order 2023
- PU(A) 27/2023
Ministers Of The Federal Government Order 2023
- PU(B) 36/2023
Notice Under Section 70
- PU(B) 35/2023
Notification Of Application For Registration Of New Plant Variety And Grant Of Breeder'S Right (Mstar 2)
- PU(B) 34/2023
Appointment Of Member Of The Commission
- PU(B) 33/2023
Notice Of Initiation Of Anti-Dumping Duty Investigation With Regard To Imports Of Cold Rolled Products Of Alloy Or Non-Alloy Steel Of A Width Less Than 1300mm (Cold-Reduced) Not Clad, Not Plated Or Not Coated (In Coil, Sheet, Strip, Hoop Or Any Other Forms) Originating Or Exported From Japan
- PU(B) 32/2023
Appointment Of Date Of Coming Into Operation
- Bills 2022
- Government Of Kelantan Gazette - Syariah Criminal Code (Ii) (1993) 2015
- Legislation: An Overview
- Legislation: FAQs
- Man gets death sentence for drug trafficking 06/02/2023
- Man gets six years' jail for raping underage girl 03/02/2023
- Court grants federal govt's bid to stay judicial review on Sabah special grant 02/02/2023
- Spanish court dismisses appeal by alleged heirs of Sulu Sultan over Sabah issue 02/02/2023
- SM Faisal's ex-wife had to work part-time selling food to support her children's expenses 02/02/2023
- Unemployed man charged with murdering 91-year-old woman 01/02/2023
- Tribute to the late Tan Sri Gopal Sri Ram 01/02/2023
- Ex-cop jailed two years, fined RM10,000 for accidentally killing colleague 31/01/2023
- Company director charged with submitting false claims 30/01/2023
- Senior citizen pleads not guilty to nine counts of money laundering involving more than RM700,000 30/01/2023
by Intan Nadia Ghulam Khan[i] Hasnizam Hashim[ii] Haliza A Shukor[iii] Nabilah Yusof[iv]
Based on the 2020 Malaysian Census record, the population of elderly aged 60 years and above was recorded at 3.4 million, 10.4% of the total population showing an increase compared to 2010, which recorded 2.2 million population or 8%. The Department of Statistics Malaysia in 2016 also reported that Malaysia is expected to be an ageing nation by 2035. In line with this ageing population growth, the government needs to prepare and implement policies to ensure the welfare of the elderly is always preserved and they are not exposed to neglect. This coincides with the principles of Islamic public policy or al-siasah al-syar'iyyah in Islam. Hence, by employing the library research method, this paper will discuss the government's role in forming policies related to the elderly according to the perspective of siasah syar'iyyah. The findings of this paper indicate that the Malaysian government has played an important role in this regard through the relevant policies and laws in line with the principles of siasah syar'iyyah. However, improvements can be made by providing specific laws in respect of the elderly in Malaysia so that their welfare can be protected and respected.
by Chin Jing Hui[i] Hew Min Min[ii] Nabeel Mahdi Althabhawi[iii]
The crime of murder remains one of the most severe offences in every country. Before sanctioning the offender, he is entitled to raise his defences in court. The success of defences might result in the acquittal of the offender. Among all the defences available, necessity remains a controversial topic on how relevant this defence is towards the Lifeboat Case. Following the proposition underlying the utilitarian concept, we should evaluate actions in terms of the propensity to maximise goodness. In other words, killing a person could be justified if it would result in the survival of others which maximises the good results obtained. Contrary to the utilitarian concept, Kant's theory proposes that no matter how the outcome, a moral act remains a moral act. Morality will always take centre stage. This article further analyses the advantages and disadvantages of positive law and natural law in connection with the defence of necessity in a murder case. This article will use qualitative research to examine the relevancy of each jurisprudence approach toward this defence. From the practicability viewpoint in the case of murder, this research found that positive law would be the best law option despite its rigidity and inflexibility. It would provide the best guarantee of the sanctity of the law. Applying other principles might cause the law to lose credibility, leading to even more biased and unjust events. This would result in an outcome that was intended to be rejected, to begin with.
by TUN ABDUL HAMID MOHAMAD*
On 9 December 2022, a five-member bench of the Federal Court led by Chief Justice Tun Tengku Maimun Tuan Mat held that art. 13(2) of the Constitution. But, where as I humbly submit, it may or may not, depending on the way the assessment is made, there is no necessity and no justification to strike down the section. That is besides the other grounds I have forwarded above.
Now, think of the consequences. I cannot think of a way of reversing it. IRB cannot issue a fresh assessment in another case even against a different landowner hoping to get a chance to reopen the issue, because the law enabling a similar assessment has been struck down as unconstitutional.
Is this another example of abuse of judicial review? See "Should the Industrial Court not be allowed to be what it was intended to be?" (4 March 2008). Is this another example of the Judiciary encroaching the powers of Parliament? - see "Not for judges to rewrite the Constitution (12 06 2017), "No judge is a Parliament" (30 March 2018); "Who is encroaching whose jurisdiction, Parliament or courts?" (16 December 2019), "Bapa" juga bermaksud "Ibu": Hakim mengambil alih kuasa Parlimen dan Majlis Raja-Raja" (23 September 2021).
Another point I wish to make is that, in a case where the validity of a law is challenged on the ground that it is unconstitutional, the Attorney General should intervene. It should not be left to the party sued, to defend it. The effect is far-reaching, not just between the two parties in that particular case. Valid grounds may be missed resulting in permanent consequences, as in this case.
LEGAL AND ANALYTICAL OVERVIEW
by Mohamad Fateh Labanieh[i] Hussein Alaa Al-Azzawi[ii]
Arbitration is the most widespread mechanism for resolving disputes in the modern and Islamic eras. The current global tendency calls for an increase in the integration of disruptive technology, such as artificial intelligence (AI), into arbitration. This article uses doctrinal legal research methodology to examine the use of Generative Pre-trained Transformer 3 (ChatGPT-3). To achieve that, primary and secondary sources of data are used. The collected data was analytically and critically analysed using the content analysis method. It is found that AI technologies, such as ChatGPT-3 would bring added value to arbitration if they are appropriately employed. However, from a legal perspective, arbitration laws are not mature enough to absorb AI technologies, such as ChatGPT-3. Finally, this article recommends that designing or developing an AI application similar to ChatGPT-3 by the Malaysian relevant authority in general and AIAC in specific would be a coherent milestone for the arbitration industry in Malaysia to be among the well-known international arbitration industry; it would attract more disputes to AIAC.
by Kong Xin Qing[i] Ezzamel Zarif bin Ahmed Zaharani[ii]
The judgment of Justice Hishamudin Yunus in Kanagalingam was unprecedented and sent shock waves to the legal fraternity, as the learned judge courageously chose to adopt the decision of the Court of Appeal (Ayer Molek COA) over that of the Federal Court (Ayer Molek FC) in the case of Ayer Molek. He held that the Federal Court's panel in Ayer Molek FC was constitutionally incompetent, having violated both the Federal Constitution and the statutory provisions of the Courts of Judicature Act 1964 ('CJA'). Therefore, no valid judgment could be rendered by a panel that was unconstitutionally and unlawfully constituted.
Justice Hishamudin's decision fundamentally raises two important questions of law, namely, the concept of stare decisis and quorum failure. In this article, his decision in Kanagalingam will be reviewed in light of these two legal principles.
The labour market is on a steady path to recovery with the unemployment rate in the country showing a downward trend with only 600,900 persons in November 2022, compared with 602,000 in October 2022, said the Department of Statistics Malaysia (DOSM). Chief statistician Datuk Seri Dr Mohd Uzir Mahidin in a statement on Tuesday (Jan 10) said the unemployment rate remained at 3.6%, claiming the positive outlook was because of the development of current economic activities in the country. “In November 2022, the labour market further strengthened in line with the development of current economic activities. Thus, the labour force situation continued to expand during the month, with an increase in the number of employed persons, while the number of unemployed persons dropped,” he said.
The prompt action to bring 373,459 foreign workers into the country via visa by reference based on employers’ applications from January to Dec 4, 2022 has eased the bottlenecks faced by businesses in their daily operations, and assist them to meet their business requirements. The said figures are part of the overall 403,869 applications received by the Immigration Department. Malaysian Employers Federation (MEF) president Datuk Dr Syed Hussain Syed Husman said the assurance given by Home Minister Datuk Seri Saifuddin Nasution Ismail — that the remaining 30,410 employers’ applications for foreign workers will be processed and be considered for approval within seven working days — is indeed very assuring. “It shows Saifuddin’s seriousness in addressing the issues faced by employers due to shortages of foreign labour.”
The labour market in Singapore continued to improve in the third quarter of this year, but the Ministry of Manpower (MOM) warned of early signs that the momentum was easing in its latest report on Thursday (Dec 15). Retrenchments were also up slightly from the previous quarter, with tech firms laying off more workers. Total employment continued to expand by 75,900 in the third quarter, which was more than the 66,500 in the previous quarter. It is now 1.7 per cent above the 2019 level. The number of non-residents workers increased by 71,100, while resident employment went up by 4,800.
Singapore's Minister for Manpower Dr. Tan See Leng has recently addressed a Parliamentary query on the number of workers with a Letter of Consent employed in jobs with a job scope or salary equivalent to Employment Pass (EP) holders, S Pass holders, and Work Permit holders. For better understanding, since 1 May 2021, Dependant's Pass holders in Singapore have had to obtain a relevant work pass instead of a Letter of Consent (LOC) to work in Singapore. As such, the majority of the LOC holders at present are dependants of Singapore citizens and Permanent Residents who are holding a Long-Term Visit Pass (LTVP) or LTVP-Plus, and working on either an LOC or pre-approved LOC (PLOC).
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