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Issue #31/2019
01 August 2019

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New This Week

  1. Case(s) of the Week

    1. SARAVANAN RAJAGOPAL & ANOR v. PP & ANOTHER APPEAL [2019] 7 CLJ 202

  2. Latest Cases

    1. Legal Network Series

    2. CLJ 2019 Volume 7 (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

SARAVANAN RAJAGOPAL & ANOR v. PP & ANOTHER APPEAL [2019] 7 CLJ 202
COURT OF APPEAL, PUTRAJAYA
AHMADI ASNAWI JCA, ABDUL RAHMAN SEBLI JCA, KAMARDIN HASHIM JCA
[CRIMINAL APPEALS NO: A-05(M)-274-07-2017 & A-05(M)-276-07-2017]
10 JANUARY 2019

(i) The court’s exercise of discretion to recall a witness under s. 425 of the Criminal Procedure Code is based on the essentiality of the additional evidence to the just decision of the case. The section calls for grounds or reasons for such exercise of discretion, and where the ground or basis are not available, as in cases where the witness has already been thoroughly examined and cross-examined, the application to recall a witness ought to be dismissed.

(ii) The court’s refusal to allow counsel’s request to recall a witness is no ground for counsel who has been appointed by the court to act as counsel for an accused charged with a capital offence to recuse or discharge himself.

CRIMINAL LAW: Murder – Conviction and sentence – Appeal against – Whether prosecution witness an interested witness – Whether mere bystander – Whether witnesses of truth and entitled to credence – Whether witnesses witnessed commission of offence – Whether evidence of witnesses supported by other evidence – Penal Code, s. 302

CRIMINAL LAW: Murder – Conviction and sentence – Appeal against – Common intention – Whether second accused person acted in concert with first accused person in furtherance of common intention to murder deceased – Link between weapon used by first accused person and conduct of second accused person – Whether established – Whether there was evidence of participation of second accused person

CRIMINAL PROCEDURE: Trial – Recall of witnesses – Power of court – Whether discretionary in nature – Basis for exercise of discretion – Whether additional evidence from witness to be recalled essential to decision of case – Whether there was basis for exercise of discretionary to recall witness – Whether prior testimonies of witnesses sufficiently comprehensive and competently executed – Criminal Procedure Code, s. 425

CRIMINAL PROCEDURE: Defence – Counsel – Court appointed counsel in criminal trial involving capital offence – Application to discharge himself – Court’s refusal to allow application to recall witness – Whether ground for discharge


LATEST CASES

Legal Network Series

[2018] 1 LNS 519

PP v. WAN MOHAMAD ILLYASAQ WAN ELIYA

CRIMINAL PROCEDURE: Sentencing - Appeal - Conviction for three offences of armed robbery - Sentence of 14 years, 11 years and 10 years imprisonment to run concurrently - Whether sentence adequate - Whether sentence reflected gravity and severity of offence - Application of 'one-transaction' rule - Whether exception to the 'one-transaction' rule applied - Whether appellate intervention required

  • For the appellant - DPP Hadya Faridzal Abu Hassan, Deputy Public Prosecutor
  • For the respondent - Francis Wee; M/s Wee & Partners Advocates

[2018] 1 LNS 534

FONG CHAP HIN v. TAN GEK SIM; WONG CHEE KHEONG (CO-RESPONDENT)

CIVIL PROCEDURE: Striking out - Application to strike out claim for damages in divorce petition - Whether Rules of Court 2012 apply in matrimonial proceedings - Inherent jurisdiction of court - Application of Rules of Court 2012 when lacunae arises - Rules of Court 2012, O. 18 r. 19

FAMILY LAW: Dissolution of marriage - Claim for damages/ maternity expenses for child born during marriage - Whether such claim expressly provided for by Law Reform (Marriage & Divorce) Act 1976 - Whether relief not expressly provided for by statute can be claimed - Inclusionary nature of statute - Whether past claims allowed in divorce proceedings - Law Reform (Marriage & Divorce) Act 1976, ss. 77, 78

  • For the petitioner - Lim Kian Leong; M/s Lim, Ho, Cheong & Lok
  • For the respondents - Ai Cha Ran; M/s Ai Cha Ran & Co

[2018] 1 LNS 539

HUSSEN MOHD HANIFAH v. PP AND ANOTHER CASE

CRIMINAL LAW: Dangerous Drugs Act 1952 - s. 39A - Possession - Bag containing impugned drugs found in management room of apartment block - Accused persons in room one foot away from bag - Whether article could not have been visible either because it was concealed or positioned in a manner out of sight - Proximity of bag to accused persons unchallenged in cross-examination - Whether proximity of bag to accused persons sufficient to prove possession

CRIMINAL LAW: Dangerous Drugs Act 1952 - Possession - Bag containing impugned drugs found in management room of apartment block - Management room unlocked but closed and wedged from inside by accused persons - Whether room accessible by others

  • For the appellants - Sanisvara Nethaji Rayer Rajaram @ Rajaji & Sivahnanthan Ragava; M/s R. Nethaji Rayer & Co
  • For the respondent - DPP Shafiq Mahadi, DPP Noor Azura Zulkiflee; Deputy Public Prosecutors for the State of Penang

[2018] 1 LNS 440

HONG LEONG BANK BERHAD lwn. MOHAMED NORDIN MOHAMED YUSOFF, (SI BANKRAP) & SATU LAGI

UNDANG-UNDANG TANAH: Gadaian - Perintah jualan - Permohonan oleh pemegang gadaian untuk menggantikan perintah jualan yang dikeluarkan oleh pentadbir tanah kepada satu perintah jualan oleh Mahkamah - Permohonan ditentang oleh penggadai - Kausa bertentangan - Sama ada terdapat ketidakpatuhan kehendak-kehendak statutori di bawah Kanun Tanah Negara oleh pemegang gadaian yang mewujudkan kausa yang bertentangan - Sama ada penggadai adalah terhalang daripada membangkitkan alasan-alasan untuk menentang permohonan pemegang gadaian - Sama ada penjualan melalui triti persendirian terjumlah kepada kausa yang bertentangan - Kanun Tanah Negara, s. 265(3A)

  • Bagi pihak plaintif - Satish Nair; T/n Satish Alli & Associates
  • Bagi pihak defendan - Atiyyah Yusuff; T/n Zura & Attiyah

[2018] 1 LNS 422

SHAMSINAR ABDUL HALIM lwn. PP & SATU LAGI RAYUAN

KETERANGAN: Saksi - Rakan sejenayah - Kebolehterimaan - Sama ada rakan sejenayah adalah merupakan saksi berkepentingan - Sama ada sabitan atas keterangan saksi rakan sejenayah adalah selamat - Sama ada hakim bicara telah menerima keterangan rakan sejenayah sebagai saksi yang jujur dan berkredibel - Sama ada keterangan rakan sejenayah disokong oleh keterangan dari saksi-saksi lain - Sama ada keterangan rakan sejenayah boleh diterima

PROSEDUR JENAYAH: Rayuan - Rayuan terhadap keputusan hakim bicara - Hakim bicara menolak pembelaan alibi - Keterangan material saksi-saksi pendakwaan tidak dicabar - Sama ada ketidakberadaan atau keberadaan tertuduh di tempat kejadian hendaklah dicadangkan kepada saksi-saksi pendakwaan - Sama ada hakim bicara wajar menolak pembelaan alibi yang telah gagal dibuktikan

KETERANGAN: Saksi - Saksi kanak-kanak - Kebolehterimaan - Siasatan awal untuk menentukan tahap kepandaian - Saksi berusia 15 tahun semasa kejadian dan berusia 17 tahun semasa memberi keterangan - Sama ada saksi masih mentah - Sama ada s. 133A merupakan peruntukan mandatori untuk hakim bicara atau pihak pendakwaan mengadakan satu siasatan awal bagi menentukan takat kepandaian seseorang saksi kanak-kanak

  • Bagi pihak perayu-perayu - Iskandar Shah Ibrahim, Hermes Media Putra Ibrahim & Naim Mahmood; T/n Hermes & Co
  • Bagi pihak responden - Wong Poi Yoke, Timbalan Pendakwa Raya; Jabatan Peguam Negara

CLJ 2019 Volume 7 (Part 2)

COURT OF APPEAL

As there is a domestic appeal procedure available to those aggrieved by the assessment made by the Director-General of Inland Revenue, a Judicial Review application to the High Court against the assessment, though equally available, can only be made in ‘very exceptional circumstances’.
Iskandar Coast Sdn Bhd v. Ketua Pengarah Hasil Dalam Negeri [2019] 7 CLJ 143 [CA]

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CIVIL PROCEDURE: Judicial review - Application for - Judicial review against decision of Director-General of Inland Revenue ('DGIR') - Lands compulsorily acquired and company received compensation - Gains arising from compensation not reported - DGIR sent notices of assessment with penalty - Applicant aggrieved by DGIR's notices of assessment and filed for judicial review - Whether applicant exhausted all available domestic avenues before applying for judicial review - Whether there were exceptional circumstances to allow applicant's application - Rules of Court 2012, O. 53 - Income Tax Act 1967, s. 24(1)(a)

REVENUE LAW: Income tax - Assessment - Lands compulsorily acquired and company received compensation - Gains arising from compensation not reported - Director-General of Inland Revenue ('DGIR') sent notices of assessment with penalty - Whether gains arising from compensation taxable - Whether company had prior knowledge of intended acquisition - Whether DGIR acted lawfully and within jurisdiction in issuing notices of assessment - Income Tax Act 1967, s. 24(1)(a)

Abdul Rahman Sebli, Zaleha Yusof, Rhodzariah Bujang JJCA

  • For the appellant - DP Naban, S Saravana Kumar & Janice Tan Ying; M/s Lee Hishammuddin Allen & Gledhill.
  • For the respondent - Ahmad Isyak Mohd Hassan, Zaleha Adam & Ruzaidah Yaacob; SRC

Domestic violence is a relevant consideration in determining custody. A parent who abuses the former spouse in front of the children, or manifests an uncontrollable temper or a capacity to hurt the former spouse or the children, may see his or her petition for custody refused by the court.
LCY v. TWY [2019] 7 CLJ 158 [CA]

FAMILY LAW: Divorce - Petition for divorce - Dissolution of marriage, custody of children and distribution of matrimonial assets - Maintenance of children - Whether RM2,000 a month per child reasonable - Division of matrimonial assets - Extent of contributions made by each party considered - Whether domestic violence relevant consideration in determining custody to parent - Whether there was overwhelming evidence of domestic violence - Whether there was provocation justifying wife deliberately stabbing husband - Allegation of sexual abuse by domestic worker on one of the children - Whether proved - Whether husband ought to be granted sole guardianship, custody, care and control of children - Law Reform (Marriage and Divorce) Act, s. 76(2)(a)

 

Tengku Maimun Tuan Mat, Abang Iskandar, Mary Lim JJCA

  • For the appellant - Honey Tan Lay Ean & Wong Chong Ee; M/s Tan Law Practice
  • For the respondent - Rohani Ibrahim & Khairul Amin Abdullah; M/s Amin, Nizam & Rohani

A leaseholder is not entitled to approach the court by way of the private law remedy of specific performance, if the lease on the land that he had secured from the State Authority is a statutory lease and not a contractual lease.
Pengarah Tanah Dan Galian Negeri Johor v. YKK (Malaysia) Sdn Bhd [2019] 7 CLJ 178 [CA]

LAND LAW: Lease - Renewal of - Option to renew - Refusal to extend by State Authority - Whether lease a contractual lease or statutory lease - Whether private law remedy available to renew lease - Whether respondent could seek specific performance against government under s. 29 of Government Proceedings Act 1956 - National Land Code, s. 76

 

Hamid Sultan Abu Backer, Zaleha Yusof, Yaacob Md Sam JJCA

  • For the appellant - Abdul Malik Ayob, State Legal Adviser
  • For the respondent - S Ravindran; M/s Sreenavasan Young

Demeanour of a witness in courtroom should be the least weighty element in determining credibility. A consummate liar may be completely calm and unruffled by the stress of cross-examination and a judge should not place complete faith in demeanour as a guide to honesty.
PP v. Yusof Saruan [2019] 7 CLJ 190 [CA]

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CRIMINAL PROCEDURE: Appeal - Appeal by prosecution - Accused person initially charged with murder under s. 302 of Penal Code - Accused person stabbed deceased multiple times before stealing deceased's valuables - Charge amended to culpable homicide not amounting to murder under s. 304(a) of Penal Code - Whether there was intention to kill - Whether nature and severity of injuries to deceased's vital organs showed accused person's intention

CRIMINAL LAW: Penal Code - Section 302 - Offence of murder - Accused person initially charged with murder under s. 302 of Penal Code - Accused person stabbed deceased multiple times before stealing deceased's valuables - Charge amended to culpable homicide not amounting to murder under s. 304(a) of Penal Code - Whether there was intention to kill - Whether nature and severity of injuries to deceased's vital organs showed accused person's intention - Whether there was grave and sudden provocation - Whether conduct of accused person, prior to and after incident, supported defence of grave and sudden provocation and lack of intention

EVIDENCE: Witness - Demeanour - Accused person initially charged with murder unders. 302 of Penal Code - Accused person stabbed deceased multiple times before stealing deceased's valuables - Charge amended to culpable homicide not amounting to murder under s. 304(a) of Penal Code - Trial judge found accused person guilty of amended charge - Accused person calm in answering questions during cross-examination - Whether demeanour in courtroom reliable guide to credibility

Umi Kalthum Abdul Majid, Harmindar Singh Dhaliwal, Stephen Chung JJCA

  • For the appellant - Nik Syahril Nik Ab Rahman; DPP
  • For the respondent - Hj Azrul Zulkifli Stork & Fahmi Sulaiman; M/s Azharudin & Assocs

(i) The court’s exercise of discretion to recall a witness under s. 425 of the Criminal Procedure Code is based on the essentiality of the additional evidence to the just decision of the case. The section calls for grounds or reasons for such exercise of discretion, and where the ground or basis are not available, as in cases where the witness has already been thoroughly examined and cross-examined, the application to recall a witness ought to be dismissed.
(ii) The court’s refusal to allow counsel’s request to recall a witness is no ground for counsel who has been appointed by the court to act as counsel for an accused charged with a capital offence to recuse or discharge himself.
Saravanan Rajagopal & Anor v. PP & Another Appeal [2019] 7 CLJ 202 [CA]

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CRIMINAL LAW: Murder - Conviction and sentence - Appeal against - Whether prosecution witness an interested witness - Whether mere bystander - Whether witnesses of truth and entitled to credence - Whether witnesses witnessed commission of offence - Whether evidence of witnesses supported by other evidence - Penal Code, s. 302

CRIMINAL LAW: Murder - Conviction and sentence - Appeal against - Common intention - Whether second accused person acted in concert with first accused person in furtherance of common intention to murder deceased - Link between weapon used by first accused person and conduct of second accused person - Whether established - Whether there was evidence of participation of second accused person

CRIMINAL PROCEDURE: Trial - Recall of witnesses - Power of court - Whether discretionary in nature - Basis for exercise of discretion - Whether additional evidence from witness to be recalled essential to decision of case - Whether there was basis for exercise of discretionary to recall witness - Whether prior testimonies of witnesses sufficiently comprehensive and competently executed - Criminal Procedure Code, s. 425

CRIMINAL PROCEDURE: Defence - Counsel - Court appointed counsel in criminal trial involving capital offence - Application to discharge himself - Court's refusal to allow application to recall witness - Whether ground for discharge

Ahmadi Asnawi, Abdul Rahman Sebli, Kamardin Hashim JJCA

  • For the 1st appellant - Hisham Nazir; M/s Hisham Nazir & Co
  • For the 2nd appellant - Geetham Ram, Lavanyia Raja & Charan Singh Kartar Singh; M/s Geethan Ram
  • For the respondent - Norinna Bahadun; DPP

A solicitor who discharges his professional duties with anything less than complete integrity, probity and trustworthiness must expect severe sanctions from the Disciplinary Committee or the Disciplinary Board. In the case at hand, taking into consideration the solicitor-client relationship, the client being an illiterate housewife, the large sum of monies borrowed from the client (RM600,000) and the failure to act with integrity and propriety, the RM50,000 fine imposed by the DB was appropriate and in accord with the principle of proportionality.
Song Teik Kim v. Lina Dimbad & Anor [2019] 7 CLJ 223 [CA]

LEGAL PROFESSION: Disciplinary proceedings - Appeal against decision of Disciplinary Board ('DB') - Advocate and solicitor borrowed money from client but later ceased to pay sums borrowed - Client lodged complaint to Bar Council - Disciplinary Committee ('DC') found advocate and solicitor guilty of misconduct and recommended fine of RM1,000 - DB upheld decision of DC but increased fine to RM50,000 - Decision of DB affirmed by High Court upon appeal by advocate and solicitor - Whether DC made finding which was not subject matter of complaint at all - Whether DC had fallen into jurisdictional error - Whether there was evidence to support finding of undue influence - Whether penalty imposed by DB appropriate - Whether ought to be set aside - Legal Profession Act 1976, s. 94(3)

LEGAL PROFESSION: Professional discipline - Misconduct - Advocate and solicitor borrowed money from client but later ceased to pay sums borrowed - Whether friendly loan - Whether there was solicitor-client relationship when loan transaction took place - Whether advocate and solicitor advised client to seek independent advice of another advocate and solicitor regarding loan agreement - Whether advocate and solicitor guilty of conduct unbefitting solicitor - Legal Profession Act 1976, s. 94(3)

 

Umi Kalthum Abdul Majid, Yaacob Md Sam, Stephen Chung JJCA

  • For the appellant - Harpal Singh Grewal & Nahvinah Selvaraj; M/s AJ Ariffin Yeo & Harpal
  • For 2nd respondent - Colin Andrew Pereira & Quah Kai Weng

HIGH COURT

Pihak Kerajaan Negeri dan Pejabat Tanah mempunyai kewajipan berjaga-jaga statutori di bawah Kanun Tanah Negera untuk mempastikan maklumat yang terkandung di dalam Daftar Tanah adalah benar, betul dan tepat serta memberi gambaran sebenar tanah, sama ada mengenai hakmilik, keluasan dan identiti pemilik berdaftar. Mereka juga menanggung kewajipan berjaga-jaga di sisi Common Law bagi maklumat-maklumat, di mana pelanggarannya akan mendedahkan mereka kepada tuntutan-tuntutan kecuaian oleh pihak terkilan.
Ko Seow Bong & Satu Lagi lwn. Kerajaan Negeri Pahang Darul Makmur & Satu Lagi [2019] 7 CLJ 236 [HC]

UNDANG-UNDANG TANAH: Pendaftar hak milik - Kewajipan statutori - Mengeluarkan geran-geran dan sijil-sijil carian rasmi yang tidak tepat - Sama ada terdapat kecuaian dan kemungkiran kewajipan berkanun apabila gagal memastikan ketepatan maklumat tanah - Sama ada menyebabkan pengeluaran geran-geran tanah yang salah - Sama ada terdapat pelanggaran kewajipan statutori - Sama ada mengakibatkan kerugian pada pihak terkilan - Permohonan ganti rugi - Sama ada dibenarkan

 

Hassan Abdul Ghani PK

  • Bagi pihak plaintif-plaintif - Francis Tan & Norhamizah Mustaffa; T/n Rosni Francis Tan & Ho
  • Bagi pihak defendan-defendan - Juanita Mohd Said & Hafizah Ahmad; PKP

In the event of a lacuna in the Criminal Procedure Code with regard to the time for filing and service of affidavits, the Rules of Court 2012 may be resorted to in order to properly regulate the orderly handling and disposal of criminal matters which involve the use of affidavits.
Sangker Sokinggam v. Timbalan Menteri Dalam Negeri, Malaysia & Ors [2019] 7 CLJ 247 [HC]

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ADMINISTRATIVE LAW: Judicial review - Habeas corpus - Application for - Allegation of non-compliance of procedure in making of detention order - Whether inquiry properly conducted - Whether duration and time that inquiry took place required to be stated - Whether due process of inquiry properly carried out - Whether there were grounds for judicial review

CRIMINAL PROCEDURE: Habeas corpus - Application for - Allegation of non-compliance of procedure in making of detention order - Whether inquiry properly conducted - Whether duration and time that inquiry took place required to be stated - Whether due process of inquiry properly carried out - Whether there were grounds for judicial review

CRIMINAL PROCEDURE: Habeas corpus - Application for - Objection to use of affidavits filed out of time - Absence of provision in Criminal Procedure Code on time for filing and service of affidavits - Whether Rules of Court 2012 could be resorted to - Whether rules on compliance with time for filing affidavits and extension of time applied to criminal proceedings - Whether power to extend time for filing affidavits provided under Courts of Judicature Act 1964 and s. 54(2) of Interpretation Acts 1948 and 1967 - Rules of Court 2012, O. 3 r. 5 & O. 32 r. 13(2)

Collin Lawrence Sequerah J

  • For the applicant - Baljit Singh Sidhu & Shukor Ahmad; M/s Shukor Baljit & Co
  • For the respondent - Adilah Roslan SFC

A Criminal Court has power and jurisdiction to arrest a wrong in limine. There is no necessity to search for such power or jurisdiction in the Criminal Procedure Code.
Tan Hoo Eng v. PP [2019] 7 CLJ 264 [HC]

CRIMINAL LAW: Anti-Money Laundering, Anti-Terrorism Financing Act 2001 ('AMLATFA') - Sections 4(1)(a), 50(1), 87(1) & 93 - Unauthorised sale of products to various purchasers - Sessions Court Judge gave order of discharge not amounting to acquittal ('DNAA') - Applicant re-charged for lesser charges under Penal Code and AMLATFA - Application to stay pending disposal of application - Whether charges ought to be set aside and/or quashed and struck out - Whether applicant ought to be acquitted and discharged - Whether there were material defects in case - Whether there was wrong in limine - Whether application ought to be allowed

 

Mohd Radzi Harun JC

  • For the applicant - Gurbachan Singh & Rabinder Singh; M/s Bachan & Kartar
                                  Amir Faliq Abdul Jalil & Siti Nor Syahidah Ismail; M/s Amir Faliq & Syahidah
  • For the respondents - Aida Mastura Mohamed Aman & Noor Zahizan Lazarous; DPPs

A Machine Operator, despite earning more than RM2000 a month, should come under the category of manual labour and be treated under s. 69(1) instead of s. 69B of the Employment Act 1955, as his duties are not a desk job (substantially physical in nature), and is thus entitled to the benefits as spelt out in the Employment (Termination and Lay-Off Benefits) Regulations 1980 and ss. 12 and 60E(3A) of the Employment Act 1955.
Vengataselam Chellappan v. Federal Power Sdn Bhd [2019] 7 CLJ 280 [HC]

LABOUR LAW: Employment - Termination benefits - Claim for - Machine operator - Whether claim by complainant fell under category of manual labour - Whether duties substantially or purely physical in nature with very little or no mental effort - Whether claim should be treated as one under s. 69(1) of Employment Act 1955 - Whether complainant entitled to claims under Employment (Termination and Lay-Off Benefits) Regulations 1980 and ss. 12(2)(c), (3) & 60E(3A) of Employment Act 1955

LABOUR LAW: Collective agreement - Terms and conditions of CA - Expiry of - Whether provisions of terms and conditions of employment shall prevail until superseded by new terms - Whether provision would amount to terms in contract of service

 

Tun Abd Majid Tun Hamzah JC

  • For the appellant - RM Murali; M/s Ramadass & Assocs
  • For the respondents - Arun Kumar; M/s Arun Kumar & Assocs

ARTICLES

LNS Article(s)

  1. ARTIFICIAL INTELLIGENCE AND THE RISING ETHICAL ISSUES* [Read excerpt]
    by SHAHINO MAH ABDULLAH [2019] 1 LNS(A) xcv

  2. [2019] 1 LNS(A) xcv
    logo
    MALAYSIA

    ARTIFICIAL INTELLIGENCE AND THE RISING ETHICAL ISSUES*

    by
    SHAHINO MAH ABDULLAH

    The adoption of AI in many industries has been regarded by some as a threat to low-skilled workers. Besides unemployment, there are also concerns on rising economic inequality caused by AI-driven companies since they would gain a disproportionate advantage than most conventional companies that still depend on normal shift-based systems. AI bots, for example, could interact with humans, build relationships with them, affecting human behavior and possibly triggering certain actions. Such intelligent machines, however, are not immune to mistakes and confusion and can be manipulated to fulfil certain ends. Also, Al cannot totally be expected to be fair and neutral, since it is dependent on bias algorithm.

    . . .

    * Published with kind permission of the International Institute of Advanced Islamic Studies (IAIS) Malaysia. (www.iais.org.my).


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  3. THE THEORIES OF LAWS OF WAR: ASSESSING THE ROLE OF THE INTERNATIONAL CRIMINAL COURTS [Read excerpt]
    by Jaganraj Ramachandran* Dr.Saravanabavan Mathialagan** [2019] 1 LNS(A) xcvii

  4. [2019] 1 LNS(A) xcvii
    logo
    MALAYSIA

    THE THEORIES OF LAWS OF WAR: ASSESSING THE ROLE OF THE INTERNATIONAL CRIMINAL COURTS

    by
    Jaganraj Ramachandran*
    Dr.Saravanabavan Mathialagan**

    Abstract

    The Rome Statute establishing the International Criminal Court (ICC) entered into force in 2002. As of 2019 there are 122 state parties out of 192 UN member states. On 4th of March 2019, Malaysia announced that it will sign the Instrument of Accession to the Rome Statute of International Criminal Court (ICC). Foreign Minister Datuk Saifuddin Abdullah signed the instrument following the decision of the Cabinet during its meeting on Dec 12 last year. However, the joy was short lived when on the 5th of April 2019, Prime Minister Tun Dr. Mahathir Mohamed announced that Malaysia will withdraw from ratifying the Rome Statute of the International Criminal Court, which would prosecute perpetrators of genocide, war crimes, crimes against humanity and crimes of aggression. The reasons for the withdrawal were unclear. It is viewed that Malaysia's accession to the Rome Statute will reflect and strengthen its commitment to combating international crimes for global peace and security.

    . . .

    * LL.B (Hons) (London), LL.M (Malaya) Lecturer, Department of Law, Brickfields Asia College.

    ** LL.B (Hons) (Cardiff), LL.M (Malaya), Ph.D (UUM). Advocate &Solicitor (Malaya), Barrister at Law (Lincolns Inn).


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  5. STATUTORY LIABILITY OF A MOTOR INSURER TO SATISFY A JUDGMENT OBTAINED BY A THIRD PARTY: RECOVERY OR EXECUTION? [Read excerpt]
    by G. NAIDU* [2019] 1 LNS(A) xcviii

  6. [2019] 1 LNS(A) xcviii
    logo
    MALAYSIA

    STATUTORY LIABILITY OF A MOTOR INSURER TO SATISFY A JUDGMENT
    OBTAINED BY A THIRD PARTY: RECOVERY OR EXECUTION?


    by
    G. NAIDU*

    Must a Plaintiff who has obtained judgment in a civil suit involving two vehicles in the accident, hereinafter referred to as the said accident, proceed by way of a recovery summons to enforce the judgment?

    To answer this question, the statutory liability of a motor insurer must be determined.

    Once a judgment is obtained by a Plaintiff against a Defendant in the said accident, the first recourse is against the Insurer of the Defendant. However, if the insurer refuses to pay or delays in making payment of the judgment sum, the Plaintiff [provided he has complied with Section 96(2) of the Road Transport Act 1987 (RTA)] would normally have proceeded by way of a recovery summons. This is no longer the situation after the decision of the Court of Appeal in Pacific & Orient Insurance Co Bhd v. Muniammah Muniandy [2011] 1 CLJ 947.

    . . .

    * G. Naidu [R. Ganavathy Naidu] Advocate & Solicitor, [Grays Inn] London.

    ** I would like to put on record my utmost gratitude to my friends in the legal fraternity who contributed by way of advice and materials to this article.


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  7. COMPULSORY LICENSE: A PANACEA FOR THE DEADLY EBOLA VIRUS DISEASE (EVD) IN AFRICA [Read excerpt]
    by ABIGAIL BENJAMIN KAHUWAI* [2019] 1 LNS(A) xcvi

  8. [2019] 1 LNS(A) xcvi
    logo
    NIGERIA

    COMPULSORY LICENSE: A PANACEA FOR THE DEADLY EBOLA VIRUS DISEASE (EVD) IN AFRICA

    by
    ABIGAIL BENJAMIN KAHUWAI*

    Abstract

    This paper is an attempt to seek a solution to tackle the non-availability of medicines to fight the Ebola Virus Disease (EVD) epidemic that ravaged (and is still ravaging) some communities in Africa. The paper is advocating for the use of the compulsory license mechanism provided for by national and international law, convention and treaties as it affects patent right protection. Compulsory license, one of the flexibilities on patent protection provided for by TRIPs (Trade Related Aspect of Intellectual Property Rights) and the DOHA Ministerial Declaration, gives a government the right to grant permission to someone else to produce generic copies of patented products or processes without the consent of the patent holder. It is most often utilized to combat national emergencies, anti-trust and competition practices and for public healthcare emergencies.

    . . .

    *Abigail Benjamin Kahuwai, LLM, Bl, Lecturer, Nigerian Law School, (abgbenjamin@gmail.com).


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LEGISLATION HIGHLIGHTS

Principal Acts

Number Title In force from Repealing
ACT 813 Departure Levy Act 2019 Not Yet In Force -
ACT 812 Finance Act 2018 The Income Tax Act 1967 [Act 53] see s 3; The Promotion of Investments Act 1986 [Act 327] see s 31; The Stamp Act 1949 [Act 378] see s 63; The Real Property Gains Tax Act 1976 [Act 169] see s 69; The Labuan Business Activity Tax Act 1990 [Act 445] see s 71; The Service Tax Act 2018 [Act 807] see s 83; The Sales Tax Act 2018 [Act 806] see s 91 -
ACT 811 Suruhanjaya Pengangkutan Awam Darat (Dissolution) Act 2018 1 January 2019 [PU(B) 732/2018] -
ACT 810 Subang Golf Course Corporation Act 1968 (Revised 2018) 12 November 2018 pursuant to paragraph 6(1)(xxiii) of the Revision of Laws Act 1968 [Act 1]; Revised up to 1 November 2018; First enacted in 1968 as Act of Parliament No 26 of 1968; First Revision - 1993 (Act 509 wef 8 October 1993) -
ACT 809 Pool Betting Act 1967 (Revised 2018) 12 November 2018 pursuant to paragraph 6(1)(xxiii) of the Revision of Laws Act 1968 [Act 1]; Revised up to 1 November 2018; First enacted in 1967 as Act of Parliament No 72 of 1967; First Revision - 1989 (Act 384 wef 21 September 1989) -

Amending Acts

Number Title In force from Principal/Amending Act No
ACT A1597 Service Tax (Amendment) Act 2019 Not Yet In Force ACT 807
ACT A1596 Sales Tax (Amendment) Act 2019 Not Yet In Force ACT 806
ACT A1595 Free Zones (Amendment) Act 2019 Not Yet In Force ACT 438
ACT A1594 Excise (Amendment) Act 2019 Not Yet In Force ACT 176
ACT A1593 Customs (Amendment) Act 2019 Not Yet In Force ACT 235

PU(A)

Number Title Date of Publication In force from Principal/ Amending Act No
PU(A) 171/2019 Customs Duties (Amendment) Order 2019 26 June 2019 1 July 2019 PU(A) 5/2017
PU(A) 170/2019 Poisons (Amendment Of Second Schedule) Order 2019 25 June 2019 26 June 2019 ACT 366
PU(A) 169/2019 Food (Amendment) (No. 3) Regulations 2019 24 June 2019 25 June 2019 PU(A) 437/1985
PU(A) 168/2019 Price Control And Anti-Profiteering (Determination Of Maximum Retail Price For Petrol And Diesel) (No. 20) Order 2019 21 June 2019 22 June 2019 ACT 723
PU(A) 167/2019 Pesticides (Amendment Of First Schedule) Order 2019 21 June 2019 1 July 2019 ACT 149

PU(B)

Number Title Date of Publication In force from Principal/ Amending Act No
PU(B) 330/2019 Appointment Of Date Of Coming Into Operation 4 July 2019 5 July 2019 ACT A1591
PU(B) 329/2019 Appointment Of Date Of Coming Into Operation 4 July 2019 5 July 2019 ACT A1566
PU(B) 328/2019 Notice To Third Parties 3 July 2019 4 July 2019 ACT 613
PU(B) 327/2019 Notification Of Values Of Crude Petroleum Oil Under Section 12 3 July 2019 5 July 2019 to 18 July 2019 ACT 235
PU(B) 326/2019 Notification Under Section 8 1 July 2019 2 July 2019 ACT 369

Legislation Alert

Updated

Act/Principal No. Title Amended by In force from Section amended
ACT 366 Poisons Act 1952 (Revised 1989) PU(A) 170/2019 26 June 2019 Second Schedule
ACT 149 Pesticides Act 1974 PU(A) 167/2019 1 July 2019 First Schedule
PU(A) 437/1985 Food Regulations 1985 PU(A) 169/2019 25 June 2019 Regulations 19A, 54, 130, 161, 178A, 269A, 340, 375, 384 and 395
ACT 254 Limitation Act 1953 (Revised 1981) ACT A1566 1 September 2019 [PU(B) 329/2019] Sections 6A, 24A and 29
ACT 67 Civil Law Act 1956 (Revised 1972) ACT A1591 1 September 2019 [PU(B) 330/2019] Sections 2, 7, 11 and 28A

Revoked

Act/Principal No. Title Revoked by In force from
PU(A) 128/1999 Income Tax (Allowance For Increased Exports) Rules 1999 PU(A) 162/2019 Year of assessment 2016
PU(A) 158/2005 Income Tax (Exemption) (No. 17) Order 2005 PU(A) 161/2019 Year of assessment 2016
PU(A) 125/2018 Ministers of the Federal Government Order 2018 PU(A) 132/2019 On the date of appointment of the persons named in the first column of the Schedule
PU(A) 144/2016 Customs (Anti-Dumping Duties) (No. 2) Order 2016 PU(A) 128/2019 8 May 2019
PU(A) 1/1989 Factories and Machinery (Noise Exposure) Regulation 1989 PU(A) 59/2019 1 June 2019