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Issue #33/2019
15 August 2019

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New This Week

  1. Case(s) of the Week

    1. JAYA SUDHIR JAYARAM v. NAUTICAL SUPREME SDN BHD & ORS [2019] 7 CLJ 395

    2. AFFIN BANK BHD v. JAMALUDIN JAAFAR; THE ASSOCIATION OF BANKS IN MALAYSIA & ANOR (INTERVENERS) [2019] 7 CLJ 541

  2. Appeal Updates

    1. Appeal Updates

  3. Latest Cases

    1. Legal Network Series

    2. CLJ 2019 Volume 7 (Part 4)

    3. CLJ 2019 Volume 7 (Part 5)

  4. Articles

    1. LNS Article(s)

    2. CLJ Article(s)

  5. Legislation Highlights

    1. Principal Acts

    2. Amending Acts

    3. PU(A)

    4. PU(B)

    5. Legislation Alert

CASE(S) OF THE WEEK

JAYA SUDHIR JAYARAM v. NAUTICAL SUPREME SDN BHD & ORS [2019] 7 CLJ 395
FEDERAL COURT, PUTRAJAYA
RAMLY ALI FCJ, AZAHAR MOHAMED FCJ, ABANG ISKANDAR FCJ, IDRUS HARUN FCJ, VERNON ONG LAM KIAT JCA
[CIVIL APPEAL NO: 02(i)-83-09-2018(W)]
01 JULY 2019

The provisions of s. 10(1) and (3) of the Arbitration Act 2005 do not apply to persons who are non-parties to arbitration proceedings or agreements. Hence, a litigant who is not a party to an arbitration agreement, or whose claim is not the subject matter of an arbitration agreement, is capable of seeking an injunction to restrain the prosecution of such arbitration agreement and bears no burden to satisfy the requirements of the said s. 10; where s. 10 is inapplicable, it inevitably follows that s. 8 of the Act is of no application either.

ARBITRATION: Proceedings – Injunction – Application for injunction to restrain arbitration proceedings – Whether requirements of s. 10 of Arbitration Act 2005 must be met by party litigant seeking injunction to restrain prosecution of arbitration to which he was not party but which would affect his proprietary rights – Whether s. 8 of Arbitration Act 2005 applied to party litigant who was not party to arbitration agreement and/or arbitration proceedings – Issues relating to a party who was not subjected to arbitration – Whether priority should be given for matter to be dealt with by court – Whether there was multiplicity, duplication and overlap of issues in arbitration and suits – Whether court proceedings should proceed ahead of arbitration proceedings – Whether there would be prejudice if injunction granted – Whether oppressive, vexatious and unconscionable for arbitration proceedings to continue – Whether injunction ought to be granted

CIVIL PROCEDURE: Injunction – Arbitration – Application for injunction to restrain arbitration proceedings – Whether requirements of s. 10 of Arbitration Act 2005 must be met by party litigant seeking injunction to restrain prosecution of arbitration to which he was not party but which would affect his proprietary rights – Whether s. 8 of Arbitration Act 2005 applied to party litigant who was not party to arbitration agreement and/or arbitration proceedings – Issues relating to a party who was not subjected to arbitration – Whether priority should be given for matter to be dealt with by court – Whether there was multiplicity, duplication and overlap of issues in arbitration and suits – Whether court proceedings should proceed ahead of arbitration proceedings – Whether there would be prejudice if injunction granted – Whether oppressive, vexatious and unconscionable for arbitration proceedings to continue – Whether injunction ought to be granted


AFFIN BANK BHD v. JAMALUDIN JAAFAR;
THE ASSOCIATION OF BANKS IN MALAYSIA & ANOR (INTERVENERS)
[2019] 7 CLJ 541
FEDERAL COURT, PUTRAJAYA
AHMAD MAAROP PCA, HASAN LAH FCJ, RAMLY ALI FCJ, ZAHARAH IBRAHIM FCJ, JEFFREY TAN FCJ
[CIVIL APPEAL NO: 02(f)-7-02-2017(K)]
15 MAY 2019

There is no express prohibition, under the Kedah Malay Reservations Enactment No. 63, against the creation of a charge over Malay Reservation Land, by a Malay, in favour of a non-Malay.

LAND LAW: Malay Reservation Land - Charge - Bank granted facilities to non-Malay borrower company - Malay man executed charge over Malay Reservation Land to secure facilities - Borrower defaulted in repayment of loan - Whether vesting of interest in Malay Reservation Land to non-Malay by way of third party charge valid - Whether fact that non-Malay was non-natural person relevant - Whether there is conflict between second paragraph in Schedule A and s. 6(2) of Kedah Malay Reservations Enactment No. 63 - Whether there is statutory provision prohibiting Malay Reservation Land, owned by a Malay, from being charged to any party who is not categorised as Malay


APPEAL UPDATES  
  1. Muhammad Fitri Hassan lwn PP [2019] 1 LNS 359 (CA) affirming the High Court case of PP v. Muhammad Fitri Hassan [Perbicaraan Jenayah No: 45A-6-01/2015]

  2. Makesh Kumar/Ramachandran v. PP [2019] 1 LNS 287 (CA) affirming the High Court case of PP v. Makesh Kumar/Ramachandran [Criminal Trial No: 45A-69-06/2015]

LATEST CASES

Legal Network Series

[2018] 1 LNS 960

RAVEENTHERAN SUNTHERALINGAM v. KETUA POLIS NEGARA & ORS

ADMINISTRATIVE LAW: Judicial review - Application for - Leave to apply for judicial review - Application filed out of time - Reliefs sought questioning gazetted electoral roll - Abuse of process of court - Applicant failed to file any application to extend time - Whether there was any good reason for court's consideration - Whether court has jurisdiction to grant leave following breach of O. 53 r. 3(6) Rules of Court 2012 - Whether an electoral roll which has been gazetted and published is subject to review by any court

  • For the applicant - Lim Heng Seng, Tan Hooi Ping, Cyrus Tiu & Gokul Radhakrishnan; M/s Marcus Tan & Co
  • For the respondents - Suzana Atan, Shamsul Bolhassan, Azizan Arshad & Nik Azrin; Senior Federal Counsel, Jabatan Peguam Negara

[2018] 1 LNS 700

DIAL KAUR TARA SINGH v. MALAYAN BANKING BERHAD

CIVIL PROCEDURE: Witnesses - Appointment of court expert - Principles and procedure - Determination of fair market value of land - Existence of wide and irreconcilable difference in valuation amount by valuers appointed by respective parties - Whether appointment of a court expert will lead to a just, expeditious and economical disposal of an action - Whether court is bound by expert report

  • For the plaintiff - Navinder Singh; M/s Navinder Singh & Co
  • For the defendant - PM Lee; M/s Khong & Son

[2018] 1 LNS 928

MENTARI BUSINESS PARK JMB v. MENTARI PROPERTIES SDN BHD

LAND LAW: Strata title - Sub-division - Delay in issuance of strata title - Delay as a result of dispute between developer and project manager - Whether developer had failed to cause strata titles to be issued by relevant authority - Whether developer had taken all reasonable steps and used its best endeavour to obtain approval for sub-division - Whether developer was acting bona fide - Whether joint management body and respective purchasers could be faulted for dispute between developer and project manager

LAND LAW: Strata title - Common property - Management of parking lots - Sale and purchase agreement had specifically excluded parking lots from common property - Whether parties were at liberty to exclude car parks and parking areas from common property - Whether parking lots are part of common property

  • For the plaintiff - Sheelan Arjunan; M/s Sheelan Arjunan & Suresh Raman
  • For the defendant - Annete Rachel; M/s Dorairaj, Low & Teh

[2018] 1 LNS 138

LORDOMERY MARIAPPAN & YANG LAIN v. YOGESWARY KRISHNAN & YANG LAIN

PERWARISAN: Pesaka kecil - Pembahagian pesaka - Pertikaian keputusan pembahagian pesaka - Pertikaian berkenaan prosiding bicara kuasa mentadbir - Sama ada berlaku frod atau representasi salah ketika bicara kuasa - Sama ada prosiding bicara kuasa terbatal

PERWARISAN: Pembahagian pesaka - Pengembalian hak - Kehilangan hak ke atas tanah - Penjaga memindah milik bahagian tanah ke atas dirinya - Bahagian tanah diserahkan untuk tujuan melantik penjaga - Sama ada plaintif mempunyai niat untuk menyerah dan melepaskan hak ke atas tanah ketika perlantikan penjaga - Sama ada penjaga adalah pemegang amanah dalam hartanah

  • Bagi pihak perayu - T/n S P Crais & Associates
  • Bagi pihak responden - Renuka Devi Krishnasamy, Atifah Muhammad; T/n V Samy & Co

[2018] 1 LNS 187

PP lwn. LIM POH SENG

UNDANG-UNDANG JENAYAH: Dadah berbahaya - Pengedaran - Milikan - Dadah dijumpai di dalam kereta yang dipandu tertuduh - Tertuduh seorang sahaja yang berada dan keluar dari kereta - Kunci kereta dijumpai dari poket seluar yang dipakai tertuduh - Sama ada tertuduh mempunyai kawalan atau jagaan ke atas barangan yang ada di dalam kereta - Sama ada tertuduh mempunyai pengetahuan berkenaan dadah yang disimpan di dalam panel suis tingkap

PROSEDUR JENAYAH: Pembelaan - Penafian - Penafian pengetahuan - Pertuduhan pemilikan dan pengedaran dadah berbahaya - Dadah dijumpai di dalam kereta - Dakwaan pemeriksaan keatas kereta dibuat di hadapan balai polis setelah tertuduh dan kereta dibawa balik secara berasingan - Cubaan untuk mengaitkan penama lain - Sama ada versi yang dikemukakan tertuduh bercanggah dengan kenyataan yang diberikan di dalam percakapan dalam pemeriksaan - Sama ada cubaan untuk mengaitkan penama lain dengan penahanan dan tangkapan tertuduh adalah pemikiran semula

  • Bagi pihak pendakwaan - How May Ling, Timbalan Pendakwa Raya
  • Bagi pihak OKT - Mohamad Hafiz Jalaluddin & Ranjit Singh Sandhu Shigara Singh; T/n Ranjit Singh Sandhu & Co

CLJ 2019 Volume 7 (Part 4)

FEDERAL COURT

The provisions of s. 10(1) and (3) of the Arbitration Act 2005 do not apply to persons who are non-parties to arbitration proceedings or agreements. Hence, a litigant who is not a party to an arbitration agreement, or whose claim is not the subject matter of an arbitration agreement, is capable of seeking an injunction to restrain the prosecution of such arbitration agreement and bears no burden to satisfy the requirements of the said s. 10; where s. 10 is inapplicable, it inevitably follows that s. 8 of the Act is of no application either.
Jaya Sudhir Jayaram v. Nautical Supreme Sdn Bhd & Ors [2019] 7 CLJ 395 [FC]

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ARBITRATION: Proceedings - Injunction - Application for injunction to restrain arbitration proceedings - Whether requirements of s. 10 of Arbitration Act 2005 must be met by party litigant seeking injunction to restrain prosecution of arbitration to which he was not party but which would affect his proprietary rights - Whether s. 8 of Arbitration Act 2005 applied to party litigant who was not party to arbitration agreement and/or arbitration proceedings - Issues relating to a party who was not subjected to arbitration - Whether priority should be given for matter to be dealt with by court - Whether there was multiplicity, duplication and overlap of issues in arbitration and suits - Whether court proceedings should proceed ahead of arbitration proceedings - Whether there would be prejudice if injunction granted - Whether oppressive, vexatious and unconscionable for arbitration proceedings to continue - Whether injunction ought to be granted

CIVIL PROCEDURE: Injunction - Arbitration - Application for injunction to restrain arbitration proceedings - Whether requirements of s. 10 of Arbitration Act 2005 must be met by party litigant seeking injunction to restrain prosecution of arbitration to which he was not party but which would affect his proprietary rights - Whether s. 8 of Arbitration Act 2005 applied to party litigant who was not party to arbitration agreement and/or arbitration proceedings - Issues relating to a party who was not subjected to arbitration - Whether priority should be given for matter to be dealt with by court - Whether there was multiplicity, duplication and overlap of issues in arbitration and suits - Whether court proceedings should proceed ahead of arbitration proceedings - Whether there would be prejudice if injunction granted - Whether oppressive, vexatious and unconscionable for arbitration proceedings to continue - Whether injunction ought to be granted

Ramly Ali, Azahar Mohamed, Abang Iskandar, Idrus Harun FCJJ, Vernon Ong Lam Kiat JCA

  • For the appellant - Cyrus Das, Robert Low, Karen Yong, Chong Lip Yi & Khong Mei-Yan; M/s Ranjit Ooi & Robert Low
  • For the 1st respondent - Su Tiang Joo, Pang Kong Leng, Chok Zhin Theng & Liew Yik Kai; M/s Cheah Teh & Su
  • For the 2nd respondents - Lim Tuck Sun & Najwa Hanee Hazza; M/s Chooi & Company & Cheang & Ariff (CCA Law Firm)
  • For the 3rd respondents - David Mathew, Olivia Loh & Malarvily Perumal; M/s Gananathan Loh

COURT OF APPEAL

It is in order for a consent judgment to be set aside if it would be positively unjust to bind the parties to it.
Bandar Subang Sdn Bhd lwn. Persatuan Penganut Sri Maha Mariamman Kajang Selangor [2019] 7 CLJ 444 [CA]

PROSEDUR SIVIL: Penghakiman dan perintah - Penghakiman persetujuan - Permohonan pengetepian - Sama ada penghakiman persetujuan terkecewa disebabkan keadaan luar kawalan pihak-pihak yang memasuki penghakiman persetujuan - Sama ada penghakiman persetujuan boleh diketepikan melalui tindakan baharu atau mesti dimulakan di mahkamah asal - Sama ada senarai alasan-alasan yang membolehkan penghakiman persetujuan diketepikan terhad

 

Abdul Rahman Sebli, Mary Lim, Hasnah Mohammed Hashim HHMR

  • Bagi pihak perayu - Abdul Fareed Abdul Gafoor; T/n VM Mohan, Fareed & Co
  • Bagi pihak responden - Lachmisharma & Gunavathy Manikam; T/n Chambers of N Sharma

Section 126(1) of the Legal Profession Act 1976 (‘LPA’) applies where parties cannot agree to the amount(s) billed. Where there is consent, s. 126(3) of the LPA provides that the Registrar then just proceeds to tax the bill even though there was no order to that effect.
Lim Kien Seng & Anor v. Tetuan K Mano & Associates [2019] 7 CLJ 457 [CA]

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LIMITATION: Accrual of cause of action - Claim - Claim for legal fees by solicitor - Solicitor appointed through letters of appointment - Contractual terms in letters that solicitors would be paid fees for legal work of representing clients - Termination of solicitor's services - Whether claim for fees time-barred - Whether claim founded on contract - Date cause of action accrued - Whether claim statute-barred - Limitation Act 1953, s. 6

LEGAL PROFESSION: Solicitor - Fees - Application to tax bills of costs on solicitor-client basis - Claim for legal fees - Solicitor appointed through letters of appointment - Contractual terms in letters that solicitors would be paid fees for legal work of representing clients - Termination of solicitor's services - Whether claim for fees time-barred - Whether claim founded on contract - Accrual of cause of action - Whether limitation had set in - Limitation Act 1953, s. 6 - Legal Profession Act 1976, s. 126

Hamid Sultan Abu Backer, Badariah Sahamid, Mary Lim JJCA

  • For the appellants - Sandosh Anandan, Sonia Deva Doss & Marcelle Sinnappa; M/s Culaz & Assocs
  • For the respondent - Anantha Krishnan, Shailender Bhar & K Manoharan; M/s K Mano & Assocs

The shareholder’s personal claim is a different and separate cause of action from a derivative action, which is the company’s claim brought in the name of the shareholder. Therefore, the loss recoverable under a personal shareholder action is different from that claimable on behalf of a company under a derivative action.
Mak Siew Wei v. Yeoh Eng Kong & Other Appeals [2019] 7 CLJ 470 [CA]

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CIVIL PROCEDURE: Statement of claim - Amendment - Action against company, directors and auditor - Allegations of misrepresentation and deceit - Action commenced by director/shareholder in personal capacity - Director/shareholder later sought to amend statement of claim to continue action only in personal capacity and on behalf of other shareholders of company - Addition of new and separate cause of action in statement of claim - Whether allowing amendment would have effect of permitting common law derivative action to be abrogated by s. 347(3) of Companies Act 2016 - Whether amendment ought to be allowed

COMPANY LAW: Derivative action - Action against company, directors and auditor - Allegations of misrepresentation and deceit - Action commenced by director/shareholder in personal capacity - Director/shareholder later sought to amend statement of claim to continue action only in personal capacity and on behalf of other shareholders of company - Addition of new and separate cause of action in statement of claim - Whether allowing amendment would have effect of permitting common law derivative action to be abrogated by s. 347(3) of Companies Act 2016 - Whether there is difference in nature and character between personal action brought by shareholder and shareholder on behalf of company - Whether amendment ought to be allowed

Nallini Pathmanathan, Badariah Sahamid, Zabariah Mohd Yusof JJCA

  • (Civil Appeal No: W-02(IM)(NCC)-1582-08-2017)
  • For the appellant - Alex Tan Chie Sian & Marcus Ng; M/s Wong Kian Kheong
  • For the respondent - S Ravindran; M/s Sreenevasan Young
  • (Civil Appeal No: W-02(IM)(NCC)-1586-08-2017)
  • For the appellant - Justin Saw; M/s Lim Chong Phang & Amy
  • For the respondent - S Ravindran; M/s Sreenevasan Young
  • (Civil Appeal No: W-02(IM)(NCC)-1587-08-2017)
  • For the appellant - Sasha Ravindran & Tasha Lim; M/s Cheah Teh & Su
  • For the respondent - S Ravindran; M/s Sreenevasan Young
  • (Civil Appeal No: W-02(IM)(NCC)-1801-08-2017)
  • For the appellant - Maisarah Mohd Razali; M/s Ram Reza & Muhammad
  • For the respondent - S Ravindran; M/s Sreenevasan Young

HIGH COURT

Where there is a valid and enforceable judgment debt which is not subject to a stay, there can be no bona fide dispute and an application for a Fortuna injunction must fail.
Comintel Sdn Bhd v. U Television Sdn Bhd & Anor [2019] 7 CLJ 494 [HC]

CIVIL PROCEDURE: Injunction - Fortuna injunction - Application to restrain presentation of winding-up petition on statutory demand issued under ss. 465 and 466 of Companies Act 2016 - Whether debt bona fide disputed - Whether statutory demand issued prematurely - Whether demand predicated on judgment debt - Whether caused irreparable damage - Whether issues raised res judicata

 

Mohd Nazlan Ghazali J

  • For the plaintiff - JL Foo & ML Tan; M/s Gan Partnership
  • For the defendant - Clinton Tan Kian Seng; M/s Thomas Philip

The prosecution, in seeking to discontinue its case or apply for a discharge not amounting to an acquittal, should furnish reason(s) for the application, failing which, the court in exercise of its discretion, may, instead of ordering a discharge not amounting to an acquittal, order a discharge amounting to an acquittal.
PP v. Ambika MA Shanmugam [2019] 7 CLJ 518 [HC]

CRIMINAL PROCEDURE: Trial - Discontinuance - Murder - Prosecution discontinued trial midway and applied for order of discharge not amounting to acquittal (DNAA) - No reason afforded for seeking DNAA - Whether accused ought to be given DNAA - Whether ought to be acquitted and discharged - Criminal Procedure Code, s. 254

 

Akhtar Tahir J

  • For the applicant - Kamaliza Md Zain & Nabila Huda; State Legal Advisor, Pulau Pinang
  • For the respondent - Anbanathan Yathirajun & Tishalini Naganathan; M/s Anba & Assocs

The contents of a s. 112 [CPC] statement cannot be used to implicate an accused person except in circumstances elaborated in s. 113 of the Code. A trial arbiter who considered such statement in calling for the accused’s defence has thus committed a misdirection in law as that was outside the permitted ambit of s. 113. 
Sarimah Peri v. PP [2019] 7 CLJ 522 [HC]

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CRIMINAL LAW: Penal Code - Section 424 - Ingredients - Complainant duped into depositing monies into accused's bank account - Whether charge against accused mentioned ingredients of offence - Whether ingredients of offence proved - Whether accused had intention to commit offence - Whether accused acted dishonestly or fraudulently

CRIMINAL PROCEDURE: Charge - Defective charge - Complainant duped into depositing monies into accused's bank account - Accused charged under s. 424 of Penal Code - Whether charge mentioned ingredients of offence - Whether accused aware of charges proffered against her - Whether there was ambiguity in charge - Whether judge certain which limb of charge needed to be proven by prosecution - Whether accused acted dishonestly or fraudulently

CRIMINAL PROCEDURE: Statements - Accused's statement to police - Statement under s. 112 Criminal Procedure Code ('CPC') - Complainant duped into depositing monies into accused's bank account - Accused charged under s. 424 of Penal Code - Trial judge found prima facie case established and accused had intention to commit crime based on accused's s. 112 statement - Whether outside permitted ambit of s. 113 of CPC - Whether trial judge could only consider evidence presented by prosecution

Ahmad Fairuz Zainol Abidin JC

  • For the appellant - A Ravi Kumar; M/s Ravi & Co
  • For the respondent - Rizal Azani; DPP

CLJ 2019 Volume 7 (Part 5)

FEDERAL COURT

There is no express prohibition, under the Kedah Malay Reservations Enactment No. 63, against the creation of a charge over Malay Reservation Land, by a Malay, in favour of a non-Malay.
Affin Bank Bhd v. Jamaludin Jaafar; The Association Of Banks In Malaysia & Anor (Interveners) [2019] 7 CLJ 541 [FC]

LAND LAW: Malay Reservation Land - Charge - Bank granted facilities to non-Malay borrower company - Malay man executed charge over Malay Reservation Land to secure facilities - Borrower defaulted in repayment of loan - Whether vesting of interest in Malay Reservation Land to non-Malay by way of third party charge valid - Whether fact that non-Malay was non-natural person relevant - Whether there is conflict between second paragraph in Schedule A and s. 6(2) of Kedah Malay Reservations Enactment No. 63 - Whether there is statutory provision prohibiting Malay Reservation Land, owned by a Malay, from being charged to any party who is not categorised as Malay

 

Ahmad Maarop PCA, Hasan Lah, Ramly Ali, Zaharah Ibrahim, Jeffrey Tan FCJJ

  • For the appellant - Chan Kean Li, Edwin Seibel, Lim Poh Leong, Yap Kok Kheong & Ooi Xi Fang; M/s Gibb & Co
  • For the respondent - P Latsmanan, Leonard Anselm Gomes, Cheryl Anne Gomes & Danielle Andrea Gomes; M/s Khor Gaik Thiam & Latsmanan

For the interveners:

  • The Association of Banks in Malaysia - Yoong Sin Min & Cheah Faan Jin; M/s Shook Lin & Bok
  • Persatuan Institusi Perbankan Islam Malaysia - Mohd Johan Lee & Mohd Nakhaie Ishak; M/s J Lee & Assocs
  • Watching Brief for Bank Negara Malaysia - Khairul Fazly Kamarudin & Radin Ariff Taquiddin Radin Amir; Legal Department, Bank Negara Malaysia

There was no justification for the Court of Appeal to displace the findings of the High Court and substitute its own, based solely on a party’s assertions in a statement of claim and in the absence of judicial appreciation of evidence adduced in court.
Mohd Syamsul Md Yusof & Ors v. Elias Idris [2019] 7 CLJ 560 [FC]

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INTELLECTUAL PROPERTY: Copyright - Infringement - Allegation by author of novel that substantial parts of novel taken for production of movie - Test for infringement of copyright - Whether novel fell under 'literary work' - Whether literary work eligible for copyright - Onus on author - Whether author established element of objective similarity between novel and movie - Copyright Act 1987, ss. 3, 7(1)(a) & (3)

CIVIL PROCEDURE: Courts - Court of Appeal - Appeal from High Court - Action for infringement of copyright - Court of Appeal reversed and set aside findings of High Court - Whether judgment indicated that Court of Appeal examined and evaluated evidence adduced by parties during trial - Whether findings and conclusion of High Court plainly wrong - Whether reversal and setting aside of decision justified

David Wong Dak Wah CJ (Sabah & Sarawak), Ramly Ali, Mohd Zawawi Salleh, Idrus Harun, Nallini Pathmanathan FCJJ

  • For the appellants - Haniff Khatri Abdulla, Aizul Rohan Anuar, Saiful Dzulhelmi & Muhammad Rafique Rashid Ali; M/s Saiful, Roger & Co
  • For the respondent - Periasamy Karuppan & Abd Razak Ismail; M/s Periasamy & Co

COURT OF APPEAL

The onus is on the caveator to justify the continued existence and maintenance of the caveat on a balance of convenience.
Ik Ngi Piau & Anor v. Tiong Meng Kwong [2019] 7 CLJ 578 [CA]

LAND LAW: Caveat - Removal - Application for - Parties entered into tenancy agreement - Tenant entered caveat on property - Whether tenant had legal and caveatable interest over property - Whether tenancy agreement valid when tenant entered caveat on property - Whether tenancy agreement 'unregistered agreement' - Whether there was pending action or imminent disposal of property warranting entering of caveat - Whether continued existence and maintenance of caveat justified on balance of convenience - Whether caveat ought to be removed - Sarawak Land Code, ss. 158 & 173

 

Idrus Harun, Zabariah Mohd Yusof, Yeoh Wee Siam JJCA

  • For the appellant - Tai Choi Yu; M/s Tai Choi Yu & Co Advocs
  • For the respondent - Henry Ling Kuong Meng; M/s Ling & Wong Advocs

A court order must be respected and should not willy-nilly be set aside by another court of coordinate jurisdiction unless there are exceptional circumstances as set out in Badiaddin Mohd Mahidin & Anor v. Arab Malaysian Finance Bhd. If it does not come within the exceptions, the general rule must apply; an aggrieved party must appeal to a higher court.
Imej Muhibah Sdn Bhd v. Pintar Asiamas Sdn Bhd (In Liquidation) & Ors [2019] 7 CLJ 590 [CA]

CIVIL PROCEDURE: Jurisdiction - High Court - Coordinate jurisdiction - Applicant applied for leave to proceed against company under liquidation - First High Court granted leave and orders sought - Applicant claimed against company at second High Court - Second High Court struck out claim as maker of affidavit in support for leave application failed to disclose he was undischarged bankrupt and set aside injunction and leave orders - Whether second High Court could strike out claim and set aside orders made by first High Court - Whether there were special circumstances warranting striking out and setting aside - Whether second High Court acted in excess of jurisdiction - Principles and exceptions stipulated in Badiaddin Mohd Mahidin & Anor v. Arab Malaysian Finance Bhd - Rules of Court 2012, O. 33

 

Vernon Ong Lam Kiat, Harmindar Singh Dhaliwal, Nor Bee Ariffin JJCA

  • For the appellant - Ranjan Chandran & Chandni Anantha Krishnan; M/s Hakem Arabi & Assocs
  • For the 1st respondent - Pamela Ephraim; M/s Susielan & Assocs
  • For the 2nd respondent - Cheah Sau Voon; M/s KH Wong, Chin & Cheah
  • For the 3rd respondent - Choy Kam Lee; M/s KL Choy & Co

Until and unless ‘such period’ mentioned in s. 5(4) of the Dangerous Drug (Special Preventive Measures) Act 1985 Act is prescribed by the Minister of Home Affairs by the regulation, it could not be interpreted that there was a prescribed time under the said s. 5(4). Hence, there was no time prescribed by the Minister for the inquiry report to be submitted to the Minister.
Kanagasingam Anantham v. Timbalan Menteri Dalam Negeri, Malaysia & Ors [2019] 7 CLJ 600 [CA]

CRIMINAL LAW: Dangerous Drugs (Special Preventive Measures) Act 1985 - Section 5(4) - Restriction order issued against appellant restricting freedom of movement - Whether there was non-compliance of procedure - Whether inquiry report by inquiry officer submitted to Home Minister within reasonable time or with convenient speed - Whether there was time prescribed under s. 5(4) for inquiry report to be submitted - Whether s. 54(2) of Interpretation Acts 1948 and 1967 only applies when prescribed occasion arises - Whether whole process from time of arrest and detention until Home Minister made restriction order complied with 60 days prescribed under s. 3(2) of Dangerous Drugs (Special Preventive Measures) Act 1985 - Whether order made valid and enforceable

 

Zaleha Yusof, Hanipah Farikullah, Kamaludin Md Said JJCA

  • For the appellants - MM Athimulam; M/s Athimulan & Co
  • For the respondent - Muhammad Sinti; Legal Advisor Office, Ministry of Home Affairs

In the event of a misdirection, the appellate court retains the discretion to dismiss an appeal if there is no substantial miscarriage of justice.
PP v. Alias Md Yusof [2019] 7 CLJ 618 [CA]

CRIMINAL LAW: Malaysian Anti-Corruption Commission Act 2009 - Section 16(a)(B) - Sting operation by Malaysian Anti-Corruption Commission - Accused acquitted and discharged - Appeal by prosecution - Whether similar fact evidence from another charge against accused admissible under current charge - Whether appellate court could dismiss appeal if misdirection did not result in miscarriage of justice - Whether courts below correct in acquitting and discharging accused

 

Umi Kalthum Abdul Majid, Stephen Chung, Mohamad Zabidin Mohd Diah JJCA

  • For the appellant - Wong Poi Yoke; DPP
  • For the respondent - A Chandra Segaran Achannah; M/s Chandra Segaran

A call on a guarantee when a party had given indulgence to the other can be construed as unconscionable and warrant the court granting the reliefs sought.
Target Resources Sdn Bhd v. THP Bina Sdn Bhd [2019] 7 CLJ 633 [CA]

CONTRACT: Guarantee - Bank guarantee - Demand for payment under bank guarantee - Whether demand unconscionable as bank guarantee had been extended by agreement of parties - Whether demand made after expiry of bank guarantee - Whether demand unjustifiable, lacking in bona fide and unenforceable - Whether defendant ought to be restrained from receiving monies pursuant to call of performance bond

 

Tengku Maimun Tuan Mat, Mary Lim, Hasnah Mohammed Hashim JJCA

  • For the appellant - Foo Joon Liang, Rohan Arasoo & Teoh Yen Tee; M/s Harold & Lam Partnership
  • For the respondent - Tharminder Singh & Aravind Kumar; M/s Izral Partnership

HIGH COURT

When it is proven that a debtor suffers from physical affliction or disability rendering him unfit, an application may be made by a friend of the debtor to vary the order for public examination in court to a private interrogatory process under oath at the office of the Director General of Insolvency.
Re Ling Lee Soon; Ex p RHB Bank Bhd [2019] 7 CLJ 647 [HC]

BANKRUPTCY: Public examination - Public examination of judgment debtor - Applicant as friend of judgment debtor filed application to vary order for public examination in court of judgment debtor to private interrogatory process under oath at office of Director General of Insolvency - Whether application res judicata and abuse of process - Whether applicant out of time to seek variation of public examination order - Whether O. 42 r. 13 Rules of Court 2012 applicable - Whether applicant had locus standi to make application - Whether necessary and imperative to publicly examine judgment debtor - Bankruptcy Act 1967, s. 17(1) - Bankruptcy Rules 1969, r. 149(1)

 

Supang Lian J

  • For the applicant - Clement Wong; M/s Clement & Company Advocs
  • For the judgment creditor - Timothy Lim Teng; M/s David Allen, Sagah & Teng Advocs
  • For the Director General of Insolvency Malaysia - Idlen Ibus
  • For the judgment creditor - Leong Hsin Ru; M/s Tang & Partners

ARTICLES

LNS Article(s)

  1. LIABILITY FOR DEFAMATION ON SOCIAL MEDIA [Read excerpt]
    br CAITLIN TAN HUI YI* [2019] 1 LNS(A) ciii

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

    LIABILITY FOR DEFAMATION ON SOCIAL MEDIA

    br
    CAITLIN TAN HUI YI*

    IN THIS ARTICLE, CAITLIN TAN HUI YI DISCUSSES A PERSON'S LIABILITY FOR THIRD-PARTY CONTENT ON SOCIAL MEDIA.

    Introduction

    In the law of defamation, a person is responsible for the defamatory words published (libel) by himself/herself to others.

    However, with the proliferation of social media, complex questions arise whether one is responsible for statements made by third parties, that is, third party comments. Whilst social media such as Facebook, Instagram and Twitter have become an integral part of our lives, many will admit that they do not know the extent of their liability under the law of defamation.

    "Do you think that your liability is only limited to your own publications and/or postings?" - hold on to this thought as we discuss this issue below.

    . . .

    * Published with kind permission of M/s Shearn Delamore & Co.


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  3. THE 'YUK FACTOR' IN BIOETHICAL DISCOURSE [Read excerpt]
    by DR. HANIWARDA YAAKOB* [2019] 1 LNS(A) civ

  4. [2019] 1 LNS(A) civ
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    MALAYSIA

    THE 'YUK FACTOR' IN BIOETHICAL DISCOURSE

    by
    DR. HANIWARDA YAAKOB*

    ABSTRACT

    Scientific innovations usually receive sceptical reaction and repulsion from the public that is often difficult to elucidate with justifiable reasons. Reactions of this type is normally built on intuition or gut-feelings and is also known as the 'yuk factor'. At times, certain actions are perceived as intolerable merely due to the nature of the behaviour without having to explain the reasons behind this repulsion. This argument has found support by some ethicists while others denounce such a belief on several grounds. This begs the question on the acceptability of this public intuition or the 'yuk factor' in formulating law and policy on new bio-medical practices. This issue forms the main thesis of this paper where public intuition or the 'yuk factor' expressed over new medical breakthroughs is critically examined with the view of determining whether such an objection should be heeded in formulating law and policy. Based on the arguments advanced, it is concluded that without any reasonable grounds, mere public repugnance over medical innovations is not sufficient to prohibit the utilisation of medical technologies that may bring tremendous benefits to mankind.

    . . .

    *Faculty of Law Universiti Kebangsaan Malaysia 43600 UKM Bangi, Selangor, Malaysia Email: hani75@ukm.edu.my


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  5. FROM COLLEAGUE TO CROOK Employer liability for the criminal acts of employees* [Read excerpt]
    by John Wilson** Kieran Pender*** [2019] 1 LNS(A) cii

  6. [2019] 1 LNS(A) cii
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    AUSTRALIA

    FROM COLLEAGUE TO CROOK
    Employer liability for the criminal acts of employees*


    by
    John Wilson**
    Kieran Pender***

    In 2012, Lord Phillips of the United Kingdom Supreme Court wrote that ‘the law of vicarious liability is on the move’.[1] Before it moves further, this article aims to articulate its present contours.

    It will begin with some introductory remarks on vicarious liability, before turning to the development of the doctrine in the criminal act context. It will analyse the most recent relevant High Court decision, Prince Alfred College Incorporated v. ADC,[2] and then conclude with some comments on potential future developments.

    Inspired by a recent Western Australian judgment, Chin v. Daymaster Pty Ltd,[3] this article hopes to provide as much clarity as possible in defining the vicarious liability of an employer for the criminal acts of their employees.

    . . .

    * Published with kind permission of the Law Society of the Australian Capital Territory. See Ethos No. 250 December 2018.

    ** Managing Legal Director, Bradley Allen Love, Canberra

    *** Legal Advisor, International Bar Association, London


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CLJ Article(s)

  1. DIRECTORS DUTIES: THE FOUNDATION OF GOOD CORPORATE GOVERNANCE (PART 2) [Read excerpt]
    by DR USHARANI BALASINGAM* [2019] 7 CLJ(A) xxxiii

  2. [2019] 7 CLJ(A) xxxiii
    logo
    MALAYSIA

    DIRECTORS DUTIES: THE FOUNDATION OF GOOD CORPORATE GOVERNANCE (PART 2)

    by
    DR USHARANI BALASINGAM*

    This part continues from Part 1 on Directors Duties: The Foundation of Good Corporate Governance. However, the focus here is upon the perspectives of the obligation of a fiduciary, trust and remedies.

    Fiduciary Duty

    The origin of the law of fiduciary obligations has been said to arise from equity's treatment of relationship of trust and confidence. Lord Thurlow (during the time when common law and equity courts were yet to be fused) said that "if a confidence is reposed and that confidence is abused, a court of equity shall give relief."[96]

    Hence, the repository of fiduciary obligation find it repository under the source of law underpinning common law and equity (rule of law) domain though some of its concepts have been codified somewhat within Companies Act 2016 and its predecessors as will be seen later.

    Fiduciary obligation; it has been said is imposed by "private law but its function is public and its purpose is social." [97]

    . . .

    * Senior Lecturer, Faculty of Law, University of Malaya, Kuala Lumpur, Malaysia


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LEGISLATION HIGHLIGHTS

Principal Acts

Number Title In force from Repealing
ACT 813 Departure Levy Act 2019 1 August 2019 - Part I, Part II, Part IV, section 17, section 18, section 31, Part VII, Part VIII except for section 37, Part IX, Part X and Part XI to the Act; 1 September 2019 - Part III, Part V except for sections 17 and 18, Part VI except for section 31, and section 37 to the Act [PU(B) 373/2019] -
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 A1601 Fisheries (Amendment) Act 2019 Not Yet In Force ACT 317
ACT A1600 Peaceful Assembly (Amendment) Act 2019 Not Yet In Force ACT 736
ACT A1599 Revision Of Laws (Amendment) Act 2019 1 August 2019 ACT 1
ACT A1598 Consumer Protection (Amendment) Act 2019 Not Yet In Force ACT 599
ACT A1597 Service Tax (Amendment) Act 2019 Not Yet In Force ACT 807

PU(A)

Number Title Date of Publication In force from Principal/ Amending Act No
PU(A) 204/2019 Income Tax (Deductions For The Employment Of Disabled Persons) (Amendment) Rules 2019 24 July 2019 Year of assessment 2019 PU(A) 73/1982
PU(A) 203/2019 Ministers Of The Federal Government (Amendment) Order 2019 23 July 2019 10 May 2018 - subparagraph 2(a); 21 May 2018 - subparagraph 2(b); 8 May 2019 - subparagraphs 2(c) and 2(d) PU(A) 132/2019
PU(A) 202/2019 Poisons (Amendment Of Poisons List) (No. 2) Order 2019 23 July 2019 24 July 2019 ACT 366
PU(A) 201/2019 Price Control And Anti-Profiteering (Determination Of Maximum Retail Price For Petrol And Diesel) (No. 24) Order 2019 19 July 2019 20 July 2019 ACT 723
PU(A) 200/2019 Employees Provident Fund (Fund Management Institution) (Amendment) Regulations 2019 19 July 2019 1 August 2019 PU(A) 381/2016

PU(B)

Number Title Date of Publication In force from Principal/ Amending Act No
PU(B) 350/2019 Appointment Of Member Of The Competition Commission 25 July 2019 1 June 2019 to 31 May 2022 ACT 713
PU(B) 349/2019 Notification Of Values Of Crude Petroleum Oil Under Section 12 25 July 2019 2 August 2019 to 15 August 2019 ACT 235
PU(B) 348/2019 Notice Of Extension Of Time Period For Making Preliminary Determination 24 July 2019 25 July 2019 ACT 504
PU(B) 347/2019 Notification Of Values Of Palm Kernel Under Section 12 24 July 2019 1 August 2019 to 31 August 2019 ACT 235
PU(B) 346/2019 Revocation Of Reservation Of Land For Public Purpose For Lot 11537 Mukim Ampang 23 July 2019 24 July 2019 ACT 56/1965

Legislation Alert

Updated

Act/Principal No. Title Amended by In force from Section amended
ACT 366 Poisons Act 1952 (Revised 1989) PU(A) 202/2019 24 July 2019 First Schedule
PU(A) 132/2019 Ministers of the Federal Government Order 2019 PU(A) 203/2019 10 May 2018 - subparagraph 2(a); 21 May 2018 - subparagraph 2(b); 8 May 2019 - subparagraphs 2(c) and 2(d) Schedule
PU(A) 381/2016 Employees Provident Fund (Fund Management Institution) Regulations 2016 PU(A) 200/2019 1 August 2019 Schedule
PU(A) 380/2016 Employees Provident Fund (Investment in Fund Management Institution) Rules 2016 PU(A) 199/2019 1 August 2019 Rules 4 and 5
PU(A) 482/2012 Capital Markets and Services (Capital Market Compensation Fund) (Contribution) Order 2012 PU(A) 197/2019 18 July 2019 General Amendment; Schedule 1

Revoked

Act/Principal No. Title Revoked by In force from
PU(B) 11/2016 Appointment and Revocation of Appointment of Federal Lands Commissioner PU(B) 332/2019 10 July 2019
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