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Issue #36/2019
05 September 2019

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New This Week

  1. Case(s) of the Week

    1. MELISSA MARIE ALBERT v. MALCOLM FERNANDEZ & ANOTHER APPEAL [2019] 8 CLJ 181

    2. DATUK SERI MOHD SHAFIE HJ APDAL v. DATUK MOHD AINAL HJ ABDUL FATTAH [2019] 8 CLJ 338

  2. Appeal Updates

    1. Appeal Updates

  3. Latest Cases

    1. Legal Network Series

    2. CLJ 2019 Volume 8 (Part 2)

    3. CLJ 2019 Volume 8 (Part 3)

  4. Articles

    1. LNS 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

MELISSA MARIE ALBERT v. MALCOLM FERNANDEZ & ANOTHER APPEAL [2019] 8 CLJ 181
COURT OF APPEAL, PUTRAJAYA
HAMID SULTAN ABU BACKER JCA, YEOH WEE SIAM JCA, HANIPAH FARIKULLAH JCA
[CIVIL APPEALS NO: B-02(A)-1277-06-2018 & B-02(A)-1278-06-2018]
03 DECEMBER 2018

In a case where the father claims custody of a child below the age of seven, the statutory presumption in favour of the mother under s. 88(3) of the Law Reform (Marriage and Divorce) Act 1976 must be rebutted with cogent evidence; an interview of the judge with the child per se, without more, cannot trigger such presumption or rebuttal.

FAMILY LAW: Divorce – Children – Custody – Interim custody of five year old child given to father – Whether father rebutted statutory presumption in s. 88(3) of Law Reform (Marriage and Divorce) Act 1976 – Whether allegations by parent against each other corroborated – Whether allegation of abuse of child led to prosecution – Whether interview with child for purpose of determining interim custody could be relied on – Whether statutory presumption could be rebutted solely by interview – Whether mother shown to be unfit to have custody of child – Whether denying mother access to child constituted blatant disregard to welfare of child – Whether mother entitled to custody of child


DATUK SERI MOHD SHAFIE HJ APDAL v. DATUK MOHD AINAL HJ ABDUL FATTAH [2019] 8 CLJ 338
HIGH COURT SABAH & SARAWAK, KOTA KINABALU
CELESTINA STUEL GALID JC
[SUIT NO: BKI-22NCvC-31-4-2018]
25 JANUARY 2019

A defendant who files an action with a view to tarnish the reputation of a plaintiff is liable to be sued for civil malicious prosecution; and where the evidence shows that the plaintiff’s reputation has been tarnished, but that no rebuttal evidence thereof had been adduced by the defendant, the court is entitled and indeed bound to assess damages without any further proof.

TORT: Malicious prosecution – Damages – Maliciously instituting civil claim – Attack on character and moral standing of plaintiff – Judgment in default of defence – Whether plaintiff entitled to general, aggravated and exemplary damages – Quantum


APPEAL UPDATES  
  1. Joseph Ifeanyi Oba lwn. PP [2018] 1 LNS 1388 (CA) affirming the High Court case of PP lwn. Joseph Ifeanyi Oba [Perbicaraan Jenayah No: 45A-139-07/2013]

  2. Jaafar Ngamil lwn. PP [2018] 1 LNS 1293 (CA) mengesahkan kes Mahkamah Tinggi PP lwn. Jaafar Ngamil [Perbicaraan Jenayah No: 45B-30-06/2015]

LATEST CASES

Legal Network Series

[2018] 1 LNS 294

TENAGA NASIONAL BERHAD v. SYARIKAT SIM QUARRY SDN BHD

UTILITIES: Electricity - Consumption and usage - Claim for loss of revenue - Tampering of meter - Whether plaintiff was required to prove identity of person who caused tampering by virtue of s. 38(1) of Electricity Supply Act 1990 - Whether calculation of back billing for 5 years period was allowed pursuant to guidelines issued by Energy Commission of Malaysia - Whether back billing was necessary to estimate revenue lost - Whether change of meter caused any inaccuracy in reading

LIMITATION: Accrual of cause of action - Right of action - Claim for loss of revenue for electricity use - Whether cause of action commenced upon discovery of tampering of meter - Whether action was filed well within 6-year time frame - Limitation Act 1953, s. 6

  • For the plaintiff - Prithi Mala Verma; M/s Prithi Junainah & Associates
  • For the defendant - Chiang Mei Wan; M/s Chiang Chambers

[2018] 1 LNS 338

GOLDIANT DEVELOPMENT SDN BHD v. FAN BOON HENG

CONTRACT: Building contract - Termination - Termination of engagement in project - Termination due to alleged stop-work - Whether conduct of plaintiff in not proceeding with works pending requisite clarification from defendant was justified - Whether reasons for termination could be challenged - Whether notice of termination had been wrongly issued

CONTRACT: Building contract - Damages - Claim for balance progress claim for work completed and loss of profit due to termination - Whether plaintiff was able to show percentage of work already completed and value of completed work - Whether loss of profit had been detailed out - Whether damages awarded was to compensate plaintiff for what he would have obtained if contract had been performed - Whether nominal damages was appropriate

CONTRACT: Building contract - Work orders - Contract governing relationship of parties - Whether contract governing relationship between parties was work order

  • For the plaintiff - Ng Sim Hong; M/s Edwin Lim & Suren
  • For the defendant - Ahmad Zayd & CY Yoon; M/s Yoon & Partners

[2018] 1 LNS 94

CHIN CHEE KOW v. PEGUAM NEGARA MALAYSIA; SO MIAU SONG & ORS (INTERVENER)

CIVIL PROCEDURE: Parties - Intervention - Proceedings - Application by trustees of public charitable trust to intervene in leave application for judicial review - Judicial review application was filed by secretary of public charitable trust - Application to seek right to be heard - Whether trustees have a direct interest in proceedings - Whether O. 53 r. 8 of Rules of Court 2012 allows for parties who have an interest in any judicial review proceedings to apply to court to intervene at leave stage - Whether court would be able to effectually and completely adjudicate all questions involved in proceedings if trustees were added as respondent - Whether trustees have a reasonable and legitimate expectation to be heard

  • For the applicant - Ravin Vello; M/s Vello & Associates
  • For the respondent - S Ravi Chandran; M/s SC Ravi & Associates

[2018] 1 LNS 517

PP lwn. BALAN SUBRAMANIAM & SATU LAGI

PROSEDUR JENAYAH: Penghukuman - Pemenjaraan - Pertimbangan mahkamah - Kesalahan dibawah s. 304(a) Kanun Keseksaan - Si mati hanya berseorangan - Sasaran serangan adalah di bahagian kepala - Pengakuan bersalah - Sama ada Mahkamah wajar memberikan simpati yang berlebihan kepada tertuduh - Sama ada pertimbangan utama bagi jenayah yang keji dan kejam ialah kepentingan awam - Sama ada hukuman yang sesuai dan berpatutan hanya bersifat deteren dan berat - Sama ada pengakuan bersalah perlu diberi penekanan

  • Bagi pihak pendakwa raya - TPR Mirza Abdullah
  • Bagi pihak tertuduh-tertuduh - Paul Krishuaraja & Amy Chong

[2018] 1 LNS 544

MITTI CABLES MFG SDN BHD lwn. IDI SAIFUL ADHA ROSLAN

KONTRAK: Representasi salah - Pembatalan - Kontrak kerja-kerja bagi membekal dan memasang lampu LED - Plaintif telah memberi jaminan kepada defendan bahawa pemasangan lampu LED akan membawa kepada penjimatan bil elektrik - Bil elektrik tidak turun seperti yang dijanjikan - Sama ada wujud silap representasi oleh plaintif kepada defendan - Sama ada defendan telah didorong oleh plaintif untuk bergantung terhadap representasi sebelum defendan memasuki perjanjian - Sama ada kontrak wajar dibatalkan - Akta Kontrak 1950, ss. 18, 19

  • Bagi pihak defendan/perayu - Haris Faizal Jalil; T/n Chor Pee Anwarul & Co
  • Bagi pihak plaintif/responden - Chang Tau Sian; T/n Henry Soong & Chang

CLJ 2019 Volume 8 (Part 2)

Where a vessel had run aground on high seas and the owners of the vessel had declared general average in respect of the cargo, the rescue operation to save the cargo by other vessels hired for that purpose would in maritime law be classified as a salvage operation, and not one of towage and carriage of goods in the ordinary sense, if the factual matrix as a whole satisfies the test as laid down in The Aldora’s case.
Fordeco Sdn Bhd v. PK Fertilizers Sdn Bhd [2019] 8 CLJ 147 [FC]

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MARITIME LAW: Carriage of goods - Vessel ran aground and effectively stranded - Appellant agreed to hire barge ('Hathaway') to vessel owners to assist grounded vessel - Tons of rock phosphate cargo discharged on Hathaway to help lighten cargo on vessel - Hathaway proceeded to Lahad Datu and discharged cargo - Cargo found to be damaged - Cargo owners suffered losses and damages - Claim brought against appellant in bailment/tort of negligence - Whether appellant sub-bailee of cargo and under duty to deliver cargo in same condition in which it was first offloaded - Whether Hathaway's part in operation amounted to bailment contract as it arose in context of normal carriage of goods - Whether contract entered into between vessel owners and appellant a salvage contract rather than one of towage and carriage of goods in ordinary sense - Aldora test - Whether applicable - Whether courts slow to impute negligence to salvor who acted reasonably and in interests of parties - Whether cargo owner bound by or deemed to have agreed to terms and conditions of salvage operation as agreed to by vessel owner - Whether standard of care different from that in normal carriage of goods situation where principles of bailment and negligence would be applied strictly

TORT: Negligence - Carriage of goods - Vessel ran aground and effectively stranded - Appellant agreed to hire barge ('Hathaway') to vessel owners to assist grounded vessel - Tons of rock phosphate cargo discharged on Hathaway to help lighten cargo on vessel - Hathaway proceeded to Lahad Datu and discharged cargo - Cargo found to be damaged - Cargo owners suffered losses and damages - Claim brought against appellant in bailment/tort of negligence - Whether appellant sub-bailee of cargo and under duty to deliver cargo in same condition in which it was first offloaded - Whether Hathaway's part in operation amounted to bailment contract as it arose in context of normal carriage of goods - Whether contract entered into between vessel owners and appellant a salvage contract rather than one of towage and carriage of goods in ordinary sense - Aldora test - Whether applicable - Whether courts slow to impute negligence to salvor who acted reasonably and in interests of parties - Whether cargo owner bound by or deemed to have agreed to terms and conditions of salvage operation as agreed to by vessel owner - Whether standard of care different from that in normal carriage of goods situation where principles of bailment and negligence would be applied strictly

Tengku Maimun Tuan Mat CJ, Ramly Ali, Rohana Yusuf, Mohd Zawawi Salleh, Nallini Pathmanathan FCJJ

  • For the appellant - Cyrus Das & Tiong Jia Yi; M/s Szetu & Co  
  • For the respondent - Oon Thian Seng, Chieng Ho Ming & Kelvin Wong Kah Shing; M/s Lim Guan Sing & Co

In a case where the father claims custody of a child below the age of seven, the statutory presumption in favour of the mother under s. 88(3) of the Law Reform (Marriage and Divorce) Act 1976 must be rebutted with cogent evidence; an interview of the judge with the child per se, without more, cannot trigger such presumption or rebuttal.
Melissa Marie Albert v. Malcolm Fernandez & Another Appeal [2019] 8 CLJ 181 [CA]

FAMILY LAW: Divorce - Children - Custody - Interim custody of five year old child given to father - Whether father rebutted statutory presumption in s. 88(3) of Law Reform (Marriage and Divorce) Act 1976 - Whether allegations by parent against each other corroborated - Whether allegation of abuse of child led to prosecution - Whether interview with child for purpose of determining interim custody could be relied on - Whether statutory presumption could be rebutted solely by interview - Whether mother shown to be unfit to have custody of child - Whether denying mother access to child constituted blatant disregard to welfare of child - Whether mother entitled to custody of child

 

Hamid Sultan Abu Backer, Yeoh Wee Siam, Hanipah Farikullah JJCA 

  • For the appellant - Ambiga Sreenevasen, Honey Tan Lay Ean, K Shanmuga & Nasyrah Samir; M/s Kanesalingan & Co
  • For the respondent - M Menon, Puspa Ratnam, Ravi Nekoo & Parvinder Kaur; M/s Hakem Arabi & Assos 

In a foreclosure action pursuant to s. 256 of the National Land Code, the relevant date for computation of the limitation period under s. 21(1) of the Limitation Act 1953 is the date of default of repayment of the facility and not the date of issuance of Form 16D. The issuance of Form 16D cannot enable the creation of a cause of action for purposes of limitation.
Wan Zubaidah Wan Mahmood (As The Representative Of The Estate Of Nik Ab Rahman Nik Mat, Deceased) & Anor v. CIMB Bank Bhd [2019] 8 CLJ 197 [CA]

BANKING: Loan - Loan facility - Property as security for loan - Default in repayment of facilities - Recovery of debt - Enforcement of charge over property - When cause of action accrued - Whether time limit for enforcement of charge expired - Bank commenced order for sale vide issuance of Form 16D - Whether issuance of Form 16D could enable creation of 'cause of action' for purposes of limitation - Whether bank entitled to claim interest on debt due beyond period of six years - Limitation Act 1953, s. 21(1), (5) 

 

Abang Iskandar, Nallini Pathmanathan, Suraya Othman JJCA 

  • For the appellant - Suria Kumar; M/s Suria Kumar & Co
  • For the respondent - Ahmad Zamri & Ooi Hean Ping; M/s Che Mokhtar & Ling 

Tertuduh yang tidak mengikrarkan mata wang Ringgit Malaysia apabila ingin membawa masuk matawang ke negara ini, sekiranya melebihi jumlah bersamaan USD 10,000 tidak menzahirkan apa-apa kesalahan di bawah s.135 Akta Kastam 1967 jika tidak diberi peluang untuk membuat ikrar dengan diberikan borang K22 sebelum melepasi laluan merah.
Lee Won Kyu lwn. PP [2019] 8 CLJ 212 [HC]

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KASTAM DAN EKSAIS: Barang-barang larangan - Kesalahan bawah s. 135(1)(e) Akta Kastam 1967 - Sama ada perayu terlibat dalam pengangkutan barang-barang tak berkastam dengan niat mengelak larangan terhadap barang-barang tersebut - Perayu didapati mengangkut mata wang kertas Ringgit Malaysia bernilai RM110,000 - Sama ada wang tunai adalah 'goods' dan termasuk dalam kategori barangan larangan - Perbuatan perayu tidak mengikrarkan mata wang Ringgit Malaysia untuk dimasukkan ke negara ini - Sama ada menzahirkan apa-apa kesalahan bawah s. 135 Akta Kastam - Sama ada kastam gagal membekalkan perayu dengan Borang K22 bagi tujuan mengikrar mata wang - Sama ada perayu 'bona fide traveller' - Sama ada pertuduhan mengangkut barang tak berkastam satu kecacatan fatal - Sama ada satu kes prima facie telah dibuktikan terhadap perayu - Peraturan-Peraturan Kastam 1977, peraturan 17(1)(a), (b)  

PROSEDUR JENAYAH: Hukuman - Rayuan terhadap sabitan dan hukuman - Kesalahan bawah s. 135(1)(e) Akta Kastam 1967 - Sama ada perayu terlibat dalam pengangkutan barang-barang tak berkastam dengan niat mengelak larangan terhadap barang-barang tersebut - Sama ada satu kes prima facie telah dibuktikan terhadap perayu - Sama ada pendakwaan gagal menzahirkan apa-apa kesalahan terhadap perayu - Sama ada Majistret tersalah arah dan terkhilaf apabila gagal mengambil kira faktor-faktor dalam mengenakan hukuman kepada perayu - Sama ada hukuman terlalu berlebihan - Sama ada perayu harus dilepaskan dan dibebaskan 

Mat Ghani Abdullah PK 

  • Bagi pihak perayu - PS Segaran & Co
  • Bagi pihak pendakwaan - DPP 

The likelihood of a bank recovering losses by some other means or from another party does not absolve a firm of solicitors for negligence or mistake in mishandling the title to a subject property which came to their custody.
Malayan Banking Bhd v. Perbadanan Kemajuan Negeri Selangor & Anor [2019] 8 CLJ 229 [HC]

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LIMITATION: Cause of action - Accrual - When cause of action accrued - Property transferred to third party without bank's consent or knowledge - Whether cause of action arose when there was threat in right/interest in property - Whether action time-barred - Whether well within limitation period - Limitation Act 1953, s. 6  

CIVIL PROCEDURE: Statement of claim - Pleadings - Property transferred to third party without consent or knowledge of proprietor - 'Mistake' pleaded as cause of action - Whether cause of action adequately pleaded  

LAND LAW: Sale and purchase of property - Property transferred to third party without bank's consent or knowledge - Breach of undertaking to deliver title of property to bank - Whether transfer of title of property to third party communicated to bank - Whether bank suffered losses and damages - Whether solicitor acting for client liable for not properly advising client - Whether solicitor negligent 

Gunalan Muniandy J 

  • For the plaintiff - Gan Siew, Shanty Koshy & Faten Ellyani; M/s Yong & Rakan-Rakan  
  • For the 1st respondent - Saladin Mohd Yasin; M/s Saladin & Assocs
  • For the 2nd respondent - Tan Keng Teck & Tobias Lim; M/s Lim Kian Leong & Co

The Immigration Department cannot detain and expel illegal immigrants after they have taken part in the Rehiring Programme for Illegal Foreign Workers. Such immigrants were not Pendatang Tanpa Izin (‘PATI’) and were indeed legally staying in Malaysia.
Mohammad Abu Shaleh lwn. Ketua Pengarah Imigresen Malaysia & Yang Lain Dan Satu Lagi Kes [2019] 8 CLJ 244 [HC]

TAHANAN PENCEGAHAN: Habeas corpus - Permohonan - Pemohon-pemohon ditangkap oleh pihak berkuasa Imigresen - Pemfailan notis usul memohon pemohon-pemohon dibebaskan atas tahanan salah - Sama ada terdapat ketidakpatuhan undang-undang dan prosedur - Sama ada tahanan melebihi 14 hari sebelum dibawa ke Majistret - Sama ada perintah pengusiran yang dikeluarkan mempunyai elemen-elemen niat jahat - Sama ada pihak imigresen bertindak luar aturan undang-undang - Akta Imigresen 1959/63, ss. 15(1)(c), 34(1), 51(5)(b), 59A(1) dan (2) 

 

Azman Abdullah H 

  • Bagi pihak pemohon - Harpal Singh; T/n T Harpal & Assocs  
  • Bagi pihak responden/pendakwaan - Nurul Hanawi; PKP

A video recording of a child witness during the course of investigations obtained outside the court room environment pursuant to the Evidence of Child Witness Act 2007 is given the same weight as testimony in court and may be admitted in evidence in proving an offence under s. 377C of the Penal Code.
Muhammad Adib Sufyan Azman v. PP [2019] 8 CLJ 254 [HC]

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CRIMINAL LAW: Penal Code, s. 377C - Carnal intercourse against order of nature - Whether penetration established - Whether act done without consent of victim - Whether victim's evidence of incident was clear - Whether all ingredients of offence proven  

CRIMINAL PROCEDURE: Defence - Alibi - Witness not named in notice given to police - Whether deprived police from ascertaining veracity of alibi - Whether defence was mere denial - Whether minimal weight to be attached to defence - Whether defence of alibi raised reasonable doubt against prosecution case - Criminal Procedure Code, s. 402A  

EVIDENCE: Corroboration - Testimony of single witness in sexual offences case - Whether witness was child of tender years - Testimony given under oath - Whether corroboration required - Whether witness understood nature of taking oath - Whether consistent and withstood test of rigorous cross-examination - Whether discrepancies in testimony of witness rendered whole evidence unacceptable

EVIDENCE: Witness - Child witness - Introduction of video recording of child witness during investigation - Whether evidence of child could be obtained outside court room environment - Whether weight of testimony same as testimony in court - Whether pre-requisites in admitting evidence fulfilled - Evidence of Child Witness Act 2007, ss. 2, 6(3), (7) & (8) 

Ahmad Fairuz Zainol Abidin JC 

  • For the appellant - PG Cyril; M/s Vignesh Kumar & Assocs  
  • For the respondent - Rizal Azani; DPP

A litigant who has filed an application for the return of a car which the Customs had seized pursuant to s. 66(2) of the Customs Act 1967 may not be guilty of laches, and may not be time-barred vis-à-vis the limitation period prescribed under s. 2(a) of Public Authorities Protection Act 1948 notwithstanding that the application was filed some 48 months after the Notice of Seizure thereof, if the facts showed that there were correspondences flowing from the applicant to the Customs regarding attempts to resolve his predicaments way after the said Notice of Seizure was issued or served. For, in such circumstances, the cause of action may start to run, not from date of the Notice of Seizure, but from the date of the last of such communications.
TJM Sdn Bhd v. Muhamad Zamree Sulaiman & Ors [2019] 8 CLJ 281 [HC]

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CIVIL PROCEDURE: Striking out - Grounds for - Seizure of vehicle by Customs officer pursuant to s. 114 of Customs Act 1967 - Originating summons ('OS') for declaration that seizure was null and void - Whether filing of OS time barred - Whether OS filed within time provided under s. 2(a) of Public Authorities Protection Act 1948 - Whether claim obviously unsustainable - Whether OS scandalous, frivolous or vexatious and abuse of court process - Rules of Court 2012, O. 18 r. 19(1)(b) & (d)

CUSTOMS AND EXCISE: Seizure - Seizure of vehicle - Seizure by Customs officer pursuant to s. 114 of Customs Act 1967 - Originating summons ('OS') for declaration that seizure was null and void - Whether OS filed within time provided under s. 2(a) of Public Authorities Protection Act 1948 - Whether OS obviously unsustainable - Whether OS scandalous, frivolous or vexatious and an abuse of court process - Rules of Court 2012, O. 18 r. 19(1)(b) & (d)

Mohd Radzi Harun JC 

  • For the applicant - Mohd Hamizi Mohd Yusof; M/s Raziyan Rahim & Assocs  
  • For the respondents - Fatin Hanum Abdul Hadi; SFC

CLJ 2019 Volume 8 (Part 3)

The Public Prosecutor has power under the law and constitutionally to issue a certificate requiring a subordinate court to transfer to the High Court any criminal case which is triable by and pending before it. With the power to issue comes the power to withdraw.
Dato’ Sri Mohd Najib Hj Abdul Razak v. PP [2019] 8 CLJ 293 [FC]

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CRIMINAL LAW: Charges - Criminal charges - Accused, former Prime Minister of Malaysia, charged with seven criminal charges relating to offences under Penal Code, Malaysian Anti-Corruption Commission Act 2009 and Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001 - Charges initially filed at Sessions Court but later transferred to High Court by way of transfer certificates issued by prosecution - High Court allowed application by prosecution to withdraw transfer certificates - Decision of High Court affirmed by Court of Appeal - Appeal against decision of Court of Appeal - Whether appeal ought to be allowed  

CRIMINAL PROCEDURE: Prosecution - Conduct of criminal prosecution - Transfer of charges - High Court allowed application by prosecution to withdraw transfer certificates - Decision of High Court affirmed by Court of Appeal - Appeal against decision of Court of Appeal - Accused, former Prime Minister of Malaysia, charged with seven criminal charges - Charges initially filed at Sessions Court but later transferred to High Court by way of transfer certificates issued by prosecution - Whether there was breach of natural justice - Whether Public Prosecutor's power to withdraw transfer certificate spent when certificate was acted on - Whether Public Prosecutor functus officio - Whether High Court's reasoning flawed - Whether High Court Judge could transfer case back to himself - Whether appeal ought to be allowed - Criminal Procedure Code, ss. 417(1), (2) & 418A - Malaysian Anti-Corruption Commission Act 2009, s. 60 

Richard Malanjum CJ, Zaharah Ibrahim CJ (Malaya), David Wong Dak Wah CJ (Sabah & Sarawak), Ramly Ali, Tengku Maimun Tuan Mat, Idrus Harun, Nallini Pathmanathan FCJJ

  • For the appellant - Muhammad Shafee Abdullah, Harvinderjit Singh, Sarah Maalini Abishegam, Al-Firduas Shahrul Naing, Wan Aizuddin Wan Mohammed, Rahmat Hazlan, Muhammad Farhan Muhammad Shafee, Nur Syahirah Hanapiah & Zahria Eleena; M/s Shafee & Co  
  • For the respondent - Tommy Thomas, Manoj Kurup, V Sithambaram, Sulaiman Abdullah, Donald Joseph Franklin, Budiman Lutfi Mohamed & Muhd Izzat Fauzan; DPPs

Where the Public Prosecutor appoints a private practitioner to conduct criminal proceedings on his behalf, unless the legality of the appointment itself is under challenge, he is under no duty to produce the letter of such appointment to the defence, and nor has the defence, for that matter, any legal right or expectation to have sight of same.
PP v. Dato’ Sri Mohd Najib Hj Abdul Razak [2019] 8 CLJ 313 [FC]

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CRIMINAL LAW: Charges - Criminal charges - Applicant, former Prime Minister of Malaysia, charged with seven criminal charges relating to offences under Penal Code, Malaysian Anti-Corruption Commission Act 2009 and Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001 - High Court dismissed application for production of instrument for appointment of advocate and solicitor to conduct criminal prosecution against applicant - Decision reversed by Court of Appeal - Appeal against decision of Court of Appeal - Whether appeal ought to be allowed  

CRIMINAL PROCEDURE: Prosecution - Conduct of criminal prosecution - Appeal against decision of Court of Appeal - High Court dismissed application for production of instrument for appointment of advocate and solicitor - Decision reversed by Court of Appeal - Applicant, former Prime Minister of Malaysia, charged with seven criminal charges - Attorney General appointed advocate and solicitor to conduct criminal prosecution against applicant - Whether applicant prejudiced by appointment of advocate and solicitor - Criminal Procedure Code, ss. 51, 129, 333, & 379 - Interpretation Acts 1948 and 1967, s. 55  

EVIDENCE: Privilege - Solicitor-client privilege - Applicant, former Prime Minister of Malaysia, charged with seven criminal charges - Attorney General appointed advocate and solicitor to conduct criminal prosecution against applicant - High Court dismissed applicant's application for production of instrument for appointment of advocate and solicitor - Decision reversed by Court of Appeal - Appeal against decision of Court of Appeal - Whether sight of letter of appointment warranted - Whether there was solicitor-client privilege - Evidence Act 1950, s. 126 

Richard Malanjum CJ, Zaharah Ibrahim CJ (Malaya), David Wong Dak Wah CJ (Sabah & Sarawak), Ramly Ali, Tengku Maimun Tuan Mat, Idrus Harun, Nallini Pathmanathan FCJJ 

  • For the appellant - Tommy Thomas, Manoj Kurup, V Sithambaram, Sulaiman Abdullah, Donald Joseph Franklin, Budiman Lutfi Mohamed & Muhd Izzat Fauzan; DPP  
  • For the respondent - Muhammad Shafee Abdullah, Harvinderjit Singh, Sarah Maalini Abishegam, Al-Firduas Shahrul Naing, Wan Aizuddin Wan Mohammed, Rahmat Hazlan, Muhammad Farhan Muhammad Shafee, Nur Syahirah Hanapiah & Zahria Eleena; M/s Shafee & Co

Where the exercise of the right of sale of a property is barred under s. 21(1) of the Limitation Act 1953, the grant of sale by the judge is contrary to the rule of law or equity and amounts to “cause to the contrary” within s. 256(3) of the National  Land Code 1965.
Sri Rimba Mentari Development Sdn Bhd v. Southeast Asia Special Asset Management Bhd (SEASAM) [2019] 8 CLJ 322 [CA]

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LAND LAW: Order for sale - Assigned property - Seeking for order for judicial sale - Limitation - Cause of action - Accrual of - Whether 12 year limitation period runs from date when right to receive money accrued or from date of default of 16D notice issued - Whether exercise of right of sale of property barred under s. 21(1) of Limitation Act 1953 - Whether limitation already set in - Whether granting sale which was time-barred amounted to 'cause to the contrary' within s. 256(3) of National Land Code  

LIMITATION: Accrual of cause of action - Order for sale - Assigned property - Seeking for order for judicial sale - Whether 12 year limitation period runs from date when right to receive money accrued or from date of default of 16D notice issued - Whether exercise of right of sale of property barred under s. 21(1) of Limitation Act 1953 - Whether limitation already set in - Whether granting sale which was time-barred amounted to 'cause to the contrary' within s. 256(3) of National Land Code 

Hamid Sultan Abu Backer, Badariah Sahamid, Mary Lim JJCA 

  • For the appellant - WP Leong; M/s WP Leong & Partners  
  • For the respondent - Gurmeet Kaur; M/s Shaikh David & Co

A defendant who files an action with a view to tarnish the reputation of a plaintiff is liable to be sued for civil malicious prosecution; and where the evidence shows that the plaintiff’s reputation has been tarnished, but that no rebuttal evidence thereof had been adduced by the defendant, the court is entitled and indeed bound to assess damages without any further proof. 
Datuk Seri Mohd Shafie Hj Apdal v. Datuk Mohd Ainal Hj Abdul Fattah [2019] 8 CLJ 338 [HC]

TORT: Malicious prosecution - Damages - Maliciously instituting civil claim - Attack on character and moral standing of plaintiff - Judgment in default of defence - Whether plaintiff entitled to general, aggravated and exemplary damages - Quantum 

 

Celestina Stuel Galid JC 

  • For the plaintiff - Douglas Lind; M/s Lind Willie Wong & Chin  
  • For the defendant - Nurul Rafeeqa; M/s Nurul Rafeeqa Marcel Advocs

A plaintiff who has filed a substantive application to claim paternity of a child, and pending that files a separate motion for an order that the child undergo a DNA test to determine the child’s biological father, is guilty of manipulating the court process. The latter application may embarrass the court as its outcome, whatever it may be, will prejudge the said substantive application.
Heng Choon Lee & Anor v. Wong Choon Ho [2019] 8 CLJ 355 [HC]

CIVIL PROCEDURE: Action - Abuse of process - Application for declaration as to paternity of child followed by subsequent separate application for child to undergo DNA tests on paternity - Subsequent application thereof - Whether if allowed would prejudge earlier application for declaration - Whether could embarrass court - Whether an abuse of process - Whether ought to be dismissed  

CIVIL PROCEDURE: Jurisdiction - Inherent jurisdiction of court - Rules of Court 2012, O. 92 r. 4 - Whether only procedural rule - Whether not intended to alter substantive rights

 

Mohd Radzi Harun JC 

  • For the plaintiffs - CS Ong & Lydia Wong; M/s Siong & Rita  
  • For the defendant - KY Chong & Chong Hui Yean; M/s HL Lee & Co

Under s. 19(1) of the Sabah Limitation Ordinance (Cap. 72), an acknowledgment of liability must be made before the expiry of the specified limitation period in order to allow a fresh limitation to run from the time of the said acknowledgment.
Ida Shafinaz Mohamed Kamil & Ors v. Universiti Malaysia Sabah [2019] 8 CLJ 366 [HC]

 |

CONTRACT: Agreement - Scholarship agreement - Employee entered into scholarship agreement with employer to pursue studies - Allegation that employee breached scholarship agreement by failing to complete studies within stipulated and extended periods - Employer issued notice of demand seven years after employee invited to re-join employment - Whether employee required to successfully complete doctoral degree course - Whether scholarship agreement frustrated - Whether there was acquiescence - Whether limitation had set in  

LIMITATION: Commencement of action - When action commenced - Employee entered into scholarship agreement with employer to pursue studies - Allegation that employee breached scholarship agreement by failing to complete studies within stipulated and extended periods - Employer issued notice of demand seven years after employee invited to re-join employment - Whether scholarship agreement frustrated - Whether there was acquiescence - Whether limitation had set in - Whether there was fresh limitation period - Sabah Limitation Ordinance (Cap. 72), s. 19(1) 

Ravinthran Paramaguru J 

  • For the appellants - Gaanesh; M/s Gaanseh & Co  
  • For the respondent - Dixon Loi; M/s Jayasuriya Kah & Co

The motor accident having already occurred 3 hours prior to the cover note being insured, absent the  uncertainty  or risk factor, the contract could not be validly  recognised  as a contract of  insurance.
Liberty Insurance Bhd v. Marrison Sidai & Anor [2019] 8 CLJ 380 [HC]

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INSURANCE: Motor insurance - Construction of policy - Road accident occurred between motor vehicle and motorcycle - Motor vehicle driver took insurance after accident occurred - Whether proper conduct - Whether act of potential fraudulence - Whether coverage provided under insurance policy had retrospective effect - Whether insurer made inquiries into insured driver before granting insurance policy - Road Transport Act 1987, s. 96(3)  

INSURANCE: Construction of policy - Cover note - Road accident occurred between motor vehicle and motorcycle - Motor vehicle driver took insurance after accident occurred - Cover note stated date and time of insurance coverage while certificate of policy stated period of coverage - Whether cover note formed part of insurance policy - Whether date and time stated in insurance coverage to be taken into account in determining period of coverage - Whether coverage under insurance policy took retrospective effect - Whether coverage started from midnight of issuance date - Road Transport Act 1987, ss. 2 & 89

CONTRACT: Privity - Insurance policy - Road accident occurred between motor vehicle and motorcycle - Motor vehicle driver took insurance after accident occurred - Whether coverage provided under insurance policy had retrospective effect - Whether insurance policy also covers rider of motorcycle - Whether there was privity of insurance contract between insurer and rider of motorcycle - Whether motorcycle rider, as third party, could benefit from insurance coverage contract between insurer and insured - Road Transport Act 1987, ss. 91 & 96 

Mohd Nazlan Ghazali J 

  • For the plaintiff - Rueben Netto & JS Naicker; M/s Naicker & Assocs  
  • For the 2nd defendant - Khairul Aiman; M/s G Dorai & Co

When an action involves a mixture of public and private law, the court will first ascertain which element is predominant in order to determine whether the mode of action and the pleadings as adopted by the plaintiff is appropriate or otherwise.
Ranjan Paramalingam & Anor v. Bangsar Park Residents Association [2019] 8 CLJ 401 [HC]

CIVIL PROCEDURE: Action - Cause of action - Whether there was public law element in dispute or a mixture of public and private law - Whether court to ascertain which element was predominant - Plaintiff's cause of action had substantial private law element - Whether plaintiff entitled to frame cause of action  

CIVIL PROCEDURE: Disposal of case on point of law - Determination of question of law - Whether there were material facts in dispute - Whether straightforward case - Whether one that could appropriately be dealt with under O. 14A and/or O. 33 r. 2 of Rules of Court 2012 - Whether had to go for full trial

 

Aliza Sulaiman JC 

  • For the plaintiffs - Bastian Pius Vendargon & Anne Vendargon; M/s Bastian Vendargon  
  • For the defendant - Fahri Azzat & Ameerul Aizat; M/s Fahri & Co

The decision of the Attorney General to prefer charges against the applicant is not amenable to judicial review unless there is abuse of prosecutorial power or the exercise of discretion contravenes constitutional protections and rights.
Sundra Rajoo Nadarajah v. Menteri Hal Ehwal Luar Negara, Malaysia & Ors [2019] 8 CLJ 422 [HC]

ADMINISTRATIVE LAW: Judicial review - Certiorari - Application for leave to commence judicial review proceedings - Seeking prohibition preventing Attorney General from bringing proceedings against applicant in his capacity as Director of the Asian International Arbitration Centre ('AIAC') - Whether applicant, being former High Officer of AIAC, clothed with immunity from prosecution - Whether Attorney General has unfettered discretion in relation to prosecution of criminal offences pursuant to art. 145(3) of the Federal Constitution - Whether decision of Attorney General in exercising discretion to prefer charges against applicant amenable to judicial review - Application for waiver of immunities - Whether immunities would impede course of justice - International Organizations (Privileges and Immunities) Act 1992, s. 8A(2) - Rules of Court 2012, O. 53 r. 3 

 

Nordin Hassan J 

  • For the applicant - K Shanmugam, Abd Shukor Ahmad & Nasyrah Samir; M/s Kanesalingam & Co  
  • For the respondents - Narkunavathy Sundareson SFC & Khong Hui Li FC

ARTICLES

LNS Article(s)

  1. MEMBERS' RIGHTS FOR MANAGEMENT REVIEW* [Read excerpt]
    by LEE YUAN YAO [2019] 1 LNS(A) cx

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

    MEMBERS' RIGHTS FOR MANAGEMENT REVIEW*

    by
    LEE YUAN YAO

    IN THIS ARTICLE, LEE YUAN YAO LOOKS AT THE EXERCISE OF MEMBERS' RIGHTS FOR MANAGEMENT REVIEW UNDER THE COMPANIES ACT 2016.

    One of the key changes introduced by the Companies Act 2016 (“CA 2016”) is the introduction of the members' rights for management review under section 195 of the CA 2016 (“Section 195”). Section 195 reads as follows:

    “195. Members' rights for management review

    1. The chairperson of a meeting of members of a company shall allow a reasonable opportunity for members at the meeting to question, discuss, comment, or make recommendation on the management of the company.

    . . .

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


    Please subscribe to cljlaw or login for the full article.
  3. REGULATING THE SEX TRADE: A COMPARATIVE STUDY BETWEEN THE LEGAL POLICIES ADOPTED IN SELECTED COUNTRIES [Read excerpt]
    by JENITA KANAPATHY* [2019] 1 LNS(A) cxi

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

    REGULATING THE SEX TRADE:
    A COMPARATIVE STUDY BETWEEN THE LEGAL POLICIES ADOPTED IN SELECTED COUNTRIES


    by
    JENITA KANAPATHY*

    ABSTRACT

    The term the "oldest profession in the world" often refers to prostitution which has withstood the test of time and thrives in different social orders and societies around the world since antiquity. However, the laws and regulations overseeing this trade will in general vary from nation to nation. In a few nations, the sex trade has been legitimised while in others, it has been criminalised and even decriminalised. Also, there are nations around the world that have adopted unregulated policies with respect to the sex trade. This paper distinguishes the kind of legitimate strategies existing around the world in terms of managing the sex trade and analyses the approaches that are adopted by selected nations; which are India, Singapore, Hong Kong and Turkey. Based on the legal framework in the selected countries, the paper recommends conceptual approaches to be undertaken as an alternative to outright criminalisation of the sex trade.

    . . .

    * Jenita Kanapathy is a Senior Lecturer at Taylor's Law School. She graduated from University of Malaya with honours in LLB in 2001 and was admitted to the Malaysian Bar the following year. Her professional career as a litigation lawyer spanned over 10 years. In 2012, she completed her Masters in Law in University Malaya. In the same year, Jenita joined Taylor's University as a law lecturer in pursuit of her passion for teaching. In 2019, she was elevated to the position of Senior Lecturer.


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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 A1603 Youth Societies And Youth Development (Amendment) Act 2019 Not Yet In Force ACT 668
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

PU(A)

Number Title Date of Publication In force from Principal/ Amending Act No
PU(A) 222/2019 Price Control And Anti-Profiteering (Determination Of Maximum Retail Price For Petrol And Diesel) (No. 27) Order 2019 9 August 2019 10 August 2019 ACT 723
PU(A) 221/2019 Road Transport (Prohibition Of Use Of Road) (Federal Roads) (No. 3) Order 2019 8 August 2019 14 August 2019 ACT 333
PU(A) 220/2019 Timber Cess (Amendment) Order 2019 5 August 2019 6 August 2019 - Peninsular Malaysia only PU(A) 56/2000
PU(A) 219/2019 Price Control And Anti-Profiteering (Determination Of Maximum Retail Price For Petrol And Diesel) (No. 26) Order 2019 [revoked By PU(A) 222/2019] 2 August 2019 3 August 2019 ACT 723
PU(A) 218/2019 Employees Provident Fund (Investment In Fund Management Institution) (Amendment) Rules 2019 - Corrigendum 31 July 2019   PU(A) 199/2019

PU(B)

Number Title Date of Publication In force from Principal/ Amending Act No
PU(B) 373/2019 Appointment Of Date Of Coming Into Operation 31 July 2019 1 August 2019 ACT 813
PU(B) 372/2019 Notice Under Section 70 29 July 2019 30 July 2019 ACT 333
PU(B) 371/2019 Notice Under Section 70 29 July 2019 30 July 2019 ACT 333
PU(B) 370/2019 Notice Of Completion Of Revision And Inspection Of Supplementary Electoral Rolls - Sarawak 29 July 2019 30 July 2019 PU(A) 293/2002
PU(B) 369/2019 Notice Of Completion Of Revision And Inspection Of Supplementary Electoral Rolls - Sabah 29 July 2019 30 July 2019 PU(A) 293/2002

Legislation Alert

Updated

Act/Principal No. Title Amended by In force from Section amended
PU(A) 56/2000 Timber Cess Order 2000 PU(A) 220/2019 6 August 2019 - Peninsular Malaysia only Schedule
ACT 366 Poisons Act 1952 (Revised 1989) PU(A) 207/2019 26 July 2019 First Schedule
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

Revoked

Act/Principal No. Title Revoked by In force from
PU(A) 248/2014 Customs Duties (Goods Under the Framework Agreement on Comprehensive Economic Co-Operation Between Asean and China) (Asean Harmonised Tariff Nomenclature) Order 2014 PU(A) 212/2019 1 August 2019
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