LIM CHOON SENG v. LIM POH KWEE
FEDERAL COURT, PUTRAJAYA
AZAHAR MOHAMED CJ (MALAYA); ROHANA YUSUF FCJ; ABANG ISKANDAR FCJ;
NALLINI PATHMANATHAN FCJ; ABDUL RAHMAN SEBLI FCJ
[CIVIL APPEAL NO: 02(F)-16-03-2019(J)]
29 JULY 2020
 CLJ JT(6)
The Court of Appeal herein cannot in law effectively reverse the separate orders of the High Court made in separate but similar proceedings dealing with separate defendants when what the appellate court had before it was only a single appeal lodged as a test case by one of the defendants, and not separate appeals lodged by the defendants separately. The mere existence of an agreement between the defendants to be bound by the decision in the test case cannot in law exempt the other defendants from lodging their own notices of appeal against the High Court decision, what more when there was no order or direction by the High Court to consolidate the suits or treat them as one proceeding; to each his own liability.
PP v. TENGKU ADNAN TENGKU MANSOR
FEDERAL COURT, PUTRAJAYA
NALLINI PATHMANATHAN FCJ; VERNON ONG LAM KIAT FCJ; ABDUL RAHMAN SEBLI FCJ
[CRIMINAL APPEAL NO: 05(L)-18-02-2020(W)]
17 JULY 2020
The guilty plea of a co-accused in a joint trial cannot be used as evidence to the detriment of the other co-accused who did not plead guilty. Criminal justice guarantees the fair trial of the remaining co-accused and demands that the facts pertaining to the charge be adduced and proven afresh against him. The presiding judge hearing the joint trial must thus consider the case against the latter separately and independently, and decide the same based on the set of evidence against him. The other co-accused, by not pleading guilty, has a sacrosanct right to be heard and to defend himself.
“The concept of secret trust, which is part of the law of trust and is governed by the rules of equity and the common law of England, is applicable in Malaysia subject to the proviso to s. 3(1) of the Civil Law Act 1956 unless there is an explicit abrogation, variation, restriction or modification by written law.”
“The concept is statutorily applicable in Malaysia; what is apparent is that the Malaysian Wills Act 1959 or other statutes or Acts of Parliament do not explicitly abrogate the application of secret trust. The proviso to s. 3(1)(a) of the Civil Law Act 1956 too does not exclude the applicability of the law on trust and secret trust. This is because the court upholds secret trust to prevent fraud on a testator and the rules of equity are applied to compel the trustee under a will to fulfil his promises to the testator.”
“In our considered view, there is no cogent reason to 'abrogate' secret trust in Malaysia. There are circumstances in which a testator creates 'secret trust' to facilitate the intention to provide for certain parties.” – per Mohd Zawawi Salleh FCJ in Chin Jhin Thien & Anor v. Chin Huat Yean & Anor  7 CLJ 137
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