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Issue #17/2020
16 April 2020

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New This Week

CASE(S) OF THE WEEK

DR SHAARI ISA & ANOR v. TAN SRI HARRIS MOHD SALLEH [2020] 4 CLJ 40
COURT OF APPEAL, KOTA KINABALU
TENGKU MAIMUN TUAN MAT JCA; ABANG ISKANDAR JCA; MARY LIM JCA
[CIVIL APPEAL NO: S-02(NCVC)(W)-1362-07-2017]
16 JANUARY 2020

Where a plaintiff in a claim for libel arising from a book written by a defendant pleaded specific passages in the book as defamatory of him, and in so averring, assigned individual and specific meanings to each of the said passages, it is erroneous of the trial judge to have clustered the alleged defamatory passages as he deemed fit and consider whether they were or the book was defamatory on that basis. The judge, in the obtaining circumstances, must rule as a matter of law and fact on the natural and ordinary meaning of each of the passages. The judge has to make a determinative finding on whether each of the passages was defamatory because, failing that, it would be impossible for him to conclude determinatively that the book was defamatory of the plaintiff. To fail to undertake such an exercise is a non-direction which amounts to a misdirection, and is fatal to the plaintiff's case.

TORT: Defamation - Libel - Book containing serious allegations against complainant for wrongful and criminal acts - Complainant identified ten paragraphs from book that were defamatory of him - Whether pleaded assigned meanings of each of ten passages alleged to be defamatory of complainant individually proven to be so - Trial judge failed to refer to complainant's pleaded assigned meanings - Whether misdirection fatal to complainant's case - Whether complainant honest or evasive witness - Whether defence of justification established - Whether complainant failed to prove his case


JOSEPH PAULUS LANTIP v. TNIO CHEE CHANG & ANOTHER APPEAL [2020] 4 CLJ 79
COURT OF APPEAL, PUTRAJAYA
ABDUL RAHMAN SEBLI JCA; MARY LIM JCA; HASNAH MOHAMMED HASHIM JCA
[CIVIL APPEALS NO: S-02(NCVC)(W)-71-01-2018 & S-02(NCVC)(W)-79-01-2018]
03 JANUARY 2020

A decision based on an issue which was not raised by parties in their pleading is liable to be set aside. Where, therefore, a plaintiff has expressly sought specific performance of a contract, and damages and injunction, it is plainly wrong for the court to proceed to hear evidence on the tort of conversion instead, and to award damages for the latter unpleaded relief. Such an indulgence by the court not only misapprehends the plaintiff's case, but offends the principle that parties are not allowed to adduce facts and issues which they have not pleaded. It must follow that such a decision will be interfered with and disturbed by the appellate court.

CIVIL PROCEDURE: Statement of claim - Pleadings - Parties entered into timber agreement - Claim for specific performance, damages and loss of profits in lieu or in addition to order of specific performance - Whether complaint based on tort of conversion - Whether there was cause of action in tort of conversion - Whether tort of conversion pleaded sufficiently - Principles of pleadings - Whether complied with

TORT: Conversion - Damages - Parties entered into timber agreement - Claim for specific performance, damages and loss of profits in lieu or in addition to order of specific performance - Whether complaint based on tort of conversion - Whether there was cause of action in tort of conversion - Whether tort of conversion pleaded sufficiently and made out - Whether elements of conversion proven - Whether claim based on breach of contract or conversion


TIJELO JACQUINN KUIN v. PP [2020] 4 CLJ 139
HIGH COURT SABAH & SARAWAK, KOTA KINABALU
CHRISTOPHER CHIN SOO YIN JC
[CRIMINAL APPEAL NO: BKI-42-2-1-2018]
01 NOVEMBER 2019

Illegal possession of a totally protected animal or animal products under s. 41(1) of the Sabah Wildlife Conservation Enactment 1997 constitutes a serious environmental offence and will be treated as such by the courts. The sentence of 2 years' imprisonment and a fine of RM50,000 in default 12 months' jail, as so imposed by the Sessions Court on the accused herein for the offence of unauthorised possession of 8 bear feet, 8 bear teeth and 2 bear gall bladder, is clearly too lenient and inadequate. It ought to be substituted and enhanced with imprisonment for a term of 4 years and a fine of RM50,000 in default 24 months' jail.

CRIMINAL PROCEDURE: Appeal - Appeal against conviction - Offence under s. 41(1) of Wildlife Conservation Enactment 1997 - Accused found to be in possession of body parts belonging to sun bears - Failure to call agent provocateur - Whether fatal to the case - Whether prosecution established prima facie case against accused

CRIMINAL PROCEDURE: Sentence - Appeal against - Offence under s. 41(1) of Wildlife Conservation Enactment 1997 - Accused found to be in possession of body parts belonging to sun bears - Factors considered - Protection of biodiversity - Public interest - Whether sentence ought to be varied


JUDICIAL QUOTES

The multiplicity objection differs from res judicata in that in a multiplicity situation, the courts have yet to decide on the issues. It is more a case of a party abusing the process of the court by raising the same cause of action or issues before different courts. It may perhaps be analogous to the doctrine of res judicata in the wider sense as decided in the celebrated case of Henderson v. Henderson [1843] 3 HARE 100 where it was held that res judicata would preclude a party from raising in subsequent proceedings matters which were not, but could and should have been brought forward. However one looks at it, the objective is the same; to prevent oppressive and unnecessary litigation which is underpinned by the public policy against re-litigating identical claims. - Per Harmindar Singh Dhaliwal JCA in Tai May Chean v. New Way Capital Sdn Bhd & Anor And Another Appeal [2019] 9 CLJ 477

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LATEST CASES

Legal Network Series

[2019] 1 LNS 56

BUILDER ENTERPRISE SDN BHD v. HANG NEE ENTERPRISE SDN BHD

1. An agreement based on emails and fax confirmations is enforceable and forms a contract. Mere absence of purchase orders and invoices does not mean that there cannot be a contract between the parties.

2. In summary judgment proceedings, the court is entitled to grant the defendant a conditional leave to defend by furnishing securities when there is a doubt as to the bona fides of the defendant's defence.

CIVIL PROCEDURE: Pleadings - Principles and procedures - Plaintiff tendered documentary evidence in summary judgment application showing confirmation of amount due and owing by defendant - Defendant challenged details of confirmation by alleging those confirmations were not stated in statement of claim - Whether material facts or evidence need to be pleaded - Whether plaintiff trying to improve statement of claim by referring in affidavits to matters not pleaded

CONTRACT: Agreements - Existence of - Claim for balance amount due and owing for supply of machinery to extract sand and labour, lorries, barges and tugboats for transporting sand - Absence of purchase orders and invoices - Reliance on confirmations of transactions in email and fax - Existence of previous payments - Whether defendant could challenge existence of agreement between parties - Whether there was an enforceable contract

CIVIL PROCEDURE: Summary judgment - Principles and procedures - Summary application for particular part of undisputed claims - Doubt as to bona fides of defence - Conditional leave to defend - Whether defendant ought to be given conditional leave to defend

  • For the plaintiff - Paari Perumal & Ch'ng Khong Aun; M/s Chai & Partners
  • For the defendant - Mohd Taufik Tahir; M/s Rizal Hashim Zaki & Jehan

[2019] 1 LNS 89

ISKANDAR DANIAL MD YUNOS & SATU LAGI lwn. PP & SATU LAGI RAYUAN

Pengakuan salah di luar mahkamah yang dibuat kepada mana-mana orang selain daripada pihak polis atau pihak yang dinyatakan dalam Akta Keterangan 1950 merupakan fakta relevan dan boleh diterima kecuali pengakuan salah tersebut tidak dibuat secara sukarela.

UNDANG-UNDANG JENAYAH: Bunuh - Seksyen 302 Kanun Keseksaan - Mengenal pasti punca kematian - Kematian di sebabkan oleh trauma tumpul dan tajam - Kecederaan fatal - Sama ada punca kematian si mati harus dipertimbangkan secara keseluruhan keadaan - Sama ada kecederaan yang dialami oleh mangsa sudah mencukupi untuk menyebabkan kematian

KETERANGAN: Kebolehterimaan - Pengakuan salah di luar mahkamah - Pengakuan yang dibuat kepada rakan taulan dan ahli keluarga - Sama ada pengakuan salah merupakan keterangan substantif - Sama ada pengakuan bersalah boleh diterima sebagai keterangan - Akta Keterangan 1950, s. 25

  • Bagi pihak perayu-perayu - Mohd Razak Sharif; T/n MR Sharif & Co & Mohd Radzi Yatiman; T/n Rahim & Lawrnee
  • Bagi pihak responden - Tengku Amir Zaki Tengku Abdul Rahman, Timbalan Pendakwa Raya; Jabatan Peguam Negara

[2019] 1 LNS 97

MOHD YUSNI ABU KASSIM v. PP

No miscarriage of justice has been occasioned in proceeding with trial in the absence of a defence counsel when the accused was given sufficient opportunity to secure a new counsel and he had the benefit of representation by counsel for the co-accused who stepped in to bridge the gap pending the appointment of a new counsel.

CRIMINAL PROCEDURE: Appeal - Appeal against conviction and sentence - Miscarriage of justice - Trial proceeded in absence of defence counsel - Accused was unable to secure new counsel to represent him despite court adjourning trial date - Witnesses were cross-examined by counsel representing co-accused at prosecution stage - Accused represented by new counsel at defence stage - Whether sufficient opportunity was given to accused and his counsels to cross examine each and every witness - Whether there was miscarriage of justice committed by the trial judge

  • For the applicant - M Manoharan; M/s M Manoharan & Co
  • For the respondent - Ahmad Ghazali Muhamad Nadzri & Mohd Azlan Basri; Ibu Pejabat Suruhanjaya Pencegahan Rasuah Malaysia; Bahagian Perundangan & Pendakwaan Kompleks SPRM

[2019] 1 LNS 101

RUMPUN TIRAI SDN BHD v. BUDAYA TENGGARA SDN BHD & ORS

1. In addition to the conditions stated in the case of Keet Gerald Francis, there must be no illegality forming the basis of an application for interlocutory injunction.

2. The granting of a tenant's application for interlocutory injunction against a landlord to prevent the disposal of land to third parties is unconscionable when the basis for the tenant's application rests on an illegal tenancy agreement.

CIVIL PROCEDURE: Injunction - Interlocutory injunction - Principles and procedures - Injunction to restrain landlord from disposingo of land to third parties - Tenancy agreement entered between tenant and landlord in contravention of  s 8(i) of the Malay Reservation Enactment - Whether granting of injunction would result in court acting against conscience - Whether there must not be any illegality forming basis of application for interlocutory injunction - Whether parties must come to court with clean hands when applying for an injunction

  • For the plaintiff - KF Wong; M/s KF Wong & Lee
  • For the defendants - Foo Siew Yin; M/s Lim Kean Leong & Co

[2019] 1 LNS 120

MOHD FAHMI REZA MOHD ZARIN lwn. PP

Komunikasi dalam bentuk kerja expresi seni yang dicipta oleh tertuduh untuk mengkritik kerajaan dan pihak berkuasa yang bersifat palsu serta berniat untuk menyakitkan orang lain tidak boleh dianggap sebagai suatu bentuk parodi dan komunikasi tersebut adalah melanggar peruntukan s. 233(1)(a) Akta Komunikasi dan Multimedia 1998.

UNDANG-UNDANG SIBER: Penyalahgunaan fasiliti laman web sosial - Muatnaik kata-kata yang menghina - Rayuan terhadap sabitan dan hukuman di bawah s. 233(1)(a) Akta Komunikasi dan Multimedia 1998 - Penghantaran komunikasi yang palsu sifatnya melalui laman profil facebook - Kritikan terhadap kerajaan dan pihak berkuasa melalui kerja seni - Sama ada komunikasi yang dibuat adalah suatu bentuk ejekan atau penghinaan - Sama ada komunikasi berniat untuk menyakitkan orang lain - Sama ada komunikasi yang dibuat boleh dianggap sebagai suatu bentuk parodi

  • Bagi pihak responden - TPR Mohd Sophian Zakaria; Pejabat Timbalan Pendakwa Raya Negeri Perak
  • Bagi pihak perayu - Syahredzan Johan; T/n Ramrais & Partners

CLJ 2020 Volume 4 (Part 1)

As a matter of broad principle, a party is not excluded from raising a new issue in a appeal to the apex court as the apex court has the power and therefore discretion to permit a party to argue on a ground which falls outside the scope of the question regarding which leave to appeal has been granted in order to avoid a miscarriage of justice. Needless to say, the discretion has to be exercised judiciously and sparingly and only in limited circumstances.
Melawangi Sdn Bhd v. Tiow Weng Theong [2020] 4 CLJ 1 [FC]

JURISDICTION: Federal Court - Appeal - New issue in appeal - Raising of issues out of questions of leave - Whether could be allowed by Federal Court - Whether discretion exercised judiciously and sparingly - Whether only in limited circumstances to avoid miscarriage of justice - Whether plaintiff pleaded all allegations - Whether defendant caught off guard - Whether defendant prejudiced

 

ROHANA YUSUF PCA
AZAHAR MOHAMED CJ (MALAYA)
MOHD ZAWAWI SALLEH FCJ
ABANG ISKANDAR FCJ
IDRUS HARUN FCJ

  • For the appellant - Dhanaraj Vasudevan & Devandra Balasingam M/s Kamil Hashim Raj & Lim
  • For the respondent - Douglas Yee, Siew Choon Jern & Ong Chern Yii; M/s Douglas Yee

A contract of guarantee, which is an undertaking to guarantee the obligations of a named principal, involves three parties; the surety, the principal debtor/borrower and the creditor. It is essentially a collateral contract where a guarantor/surety undertakes to answer for the default of the principal debtor/borrower who is liable to the creditor. The guarantor/surety only owes a secondary obligation to the creditor to make good the particular defaults of the principal debtor.
Bank Pembangunan Malaysia Bhd v. Spring Hill Bioventures Sdn Bhd [2020] 4 CLJ 15 [CA]

CONTRACT: Loan - Guarantee - Bank gave loan facilities to borrower - Surety gave letters of undertaking ('LOU') to bank for facilities - Borrower defaulted in repayment - Bank terminated facilities and demanded for payments from borrower - Whether LOUs contracts of guarantee or contracts of indemnity - Whether necessary to prove that principal debtor/borrower expressly requested surety to act as surety - Whether surety had discharged obligation under first LOU as result of variation to offer letter - Whether surety had been discharged of liability under second LOU following variation to LOU for all transactions subsequent to variation - Whether bank obliged to notify surety that borrower defaulted and demand payment within tenure of loan facilities - Contracts Act 1950, ss. 79, 86, 88 & 89

 

AHMADI ASNAWI JCA
AB KARIM AB JALIL JCA
SURAYA OTHMAN JCA

  • For the appellant - Andrew Chiew & Wong Han Wey; M/s Lee Hishammuddin Allen & Gledhill
  • For the respondent - Peter Justin Skelchy & Nuraini Ali; M/s Cheah Teh & Su

Where a plaintiff in a claim for libel arising from a book written by a defendant pleaded specific passages in the book as defamatory of him, and in so averring, assigned individual and specific meanings to each of the said passages, it is erroneous of the trial judge to have clustered the alleged defamatory passages as he deemed fit and consider whether they were or the book was defamatory on that basis. The judge, in the obtaining circumstances, must rule as a matter of law and fact on the natural and ordinary meaning of each of the passages. The judge has to make a determinative finding on whether each of the passages was defamatory because, failing that, it would be impossible for him to conclude determinatively that the book was defamatory of the plaintiff. To fail to undertake such an exercise is a non-direction which amounts to a misdirection, and is fatal to the plaintiff's case.
Dr Shaari Isa & Anor v. Tan Sri Harris Mohd Salleh [2020] 4 CLJ 40 [CA]

TORT: Defamation - Libel - Book containing serious allegations against complainant for wrongful and criminal acts - Complainant identified ten paragraphs from book that were defamatory of him - Whether pleaded assigned meanings of each of ten passages alleged to be defamatory of complainant individually proven to be so - Trial judge failed to refer to complainant's pleaded assigned meanings - Whether misdirection fatal to complainant's case - Whether complainant honest or evasive witness - Whether defence of justification established - Whether complainant failed to prove his case

 

TENGKU MAIMUN TUAN MAT JCA
ABANG ISKANDAR JCA
MARY LIM JCA

  • For the appellant - Raymond Szetu & Tiong Jia Yi; M/s Szetu & Co
  • For the respondent - Trevor Kenneth Maringking; M/s Maringking & Co

A plaintiff's claim for specific performance to recover land pursuant to a contract can be defeated by the defence of limitation or laches since, where limitation or laches applies, it matters not that the claim is highly meritorious or sustainable. Where a plaintiff has paid a deposit for the purchase of land, but has done nothing throughout the 12-year limitation period to pay the balance price, or to make good his bargain in a way as would evince an intention on his part to follow through the agreement, there is little the court can do other than to hold that the plaintiff has slept on his rights and that it is inequitable for the court to grant the equitable relief sought for.
Eagaivall inayagi Ammal v. Chin Min Hua & Ors [2020] 4 CLJ 64 [CA]

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LIMITATION: Land - Recovery of - Sale and purchase of land - Limitation period - 12 years from date of accrual of cause of action - Balance purchase price paid into purchaser's solicitors' clients' account 17 years after due date - Monies released to vendor after 21 years - Whether time expressed to be essence of agreement - Whether action filed past limitation period - Limitation Act 1953, s. 9(1)

LIMITATION: Laches, doctrine of - Delay in taking action - Action to recover land pursuant to sale and purchase agreement - Action filed past limitation period of 12 years - Whether time expressed to be of essence of agreement - Balance purchase price paid into purchaser's solicitors' clients' account 17 years after due date and released to vendor after 21 years - Whether purchaser slept on his rights - Whether laches set in

CONTRACT: Specific performance - Sale and purchase agreement - Whether remedy of specific performance must be exercised judiciously - Whether purchaser ready and able to pay balance purchase price - Delay of 17 years to pay balance purchase price - Whether constituted gross delay by purchaser - Whether caused unfair advantage to vendor - Whether value of property increased manifold - Whether to compel sale of property at original price created severe hardship to vendor - Whether manifestly unjust to grant specific performance

DAVID WONG DAK WAH JCA
ABANG ISKANDAR JCA
HASNAH MOHAMMED HASHIM JCA

  • For the appellant - Darshan Singh & Manjit Singh Gill; M/s Darshan, Syed, Amarjit & Partners
  • For the respondents - Sunita Shalini Sankey & Vincent Tey Wei Seng; M/s Jublin Tan & Tey

A decision based on an issue which was not raised by parties in their pleading is liable to be set aside. Where, therefore, a plaintiff has expressly sought specific performance of a contract, and damages and injunction, it is plainly wrong for the court to proceed to hear evidence on the tort of conversion instead, and to award damages for the latter unpleaded relief. Such an indulgence by the court not only misapprehends the plaintiff's case, but offends the principle that parties are not allowed to adduce facts and issues which they have not pleaded. It must follow that such a decision will be interfered with and disturbed by the appellate court.
Joseph Paulus Lantip v. Tnio Chee Chang & Another Appeal [2020] 4 CLJ 79 [CA]

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CIVIL PROCEDURE: Statement of claim - Pleadings - Parties entered into timber agreement - Claim for specific performance, damages and loss of profits in lieu or in addition to order of specific performance - Whether complaint based on tort of conversion - Whether there was cause of action in tort of conversion - Whether tort of conversion pleaded sufficiently - Principles of pleadings - Whether complied with

TORT: Conversion - Damages - Parties entered into timber agreement - Claim for specific performance, damages and loss of profits in lieu or in addition to order of specific performance - Whether complaint based on tort of conversion - Whether there was cause of action in tort of conversion - Whether tort of conversion pleaded sufficiently and made out - Whether elements of conversion proven - Whether claim based on breach of contract or conversion

ABDUL RAHMAN SEBLI JCA
MARY LIM JCA
HASNAH MOHAMMED HASHIM JCA

  • For the 1st appellant - Chen Kok On & Sonny Durai; M/s Allion Kitingan & Partners
  • For the 2nd appellant - Abdul Fikry Jaafar; M/s Jumahad Julkarnain & Ahmadshah
  • For the respondent - Alex Siew; M/s Alex Siew & Co

A plaintiff in an action for passing-off in the common law sense will not have the standing to sue unless he owns the goodwill in the relevant brand name. Goodwill, however, may have to be distinguished from reputation, as reputation per se may not necessarily imply the existence of goodwill. This said, where a person carries on business of a product through a company he founded, but not personally in his name, the goodwill related to the business is the company's and not his; and unless he is able to successfully lift the corporate veil, he has no right in law to pursue a passing-off action in his personal capacity.
Kamdar Sdn Bhd v. Mohammad Hafiz Hamidun [2020] 4 CLJ 101 [CA]

TORT: Passing off - Elements - Fabrics allegedly printed, labelled and marketed by retailer as products produced by claimant - Whether retailer's act amounted to passing off goods/services of claimant's - Whether claimant's goodwill or reputation attached to goods/services in mind of purchasers - Whether purchasers associate brand name with goods/services offered by claimant - Whether brand name distinctive of claimant's goods/services - Whether there was misrepresentation by retailer to public that goods/services offered were that of claimant's - Whether claimant suffered or likely to suffer damages due to erroneous belief endangered by retailer's misrepresentation

TORT: Passing off - Goodwill - Fabrics allegedly printed, labelled and marketed by fabric retailer as products produced by claimant - Whether claimant's goodwill or reputation attached to goods/services in mind of purchasers - Whether purchasers associate brand name with goods/services offered by claimant - Whether brand name distinctive of claimant's goods/services - Whether goodwill owned by claimant or company where claimant was major shareholder - Whether claimant alter ego of company - Whether action ought to be brought by claimant or company - Whether there were special circumstances warranting lifting of company's corporate veil

 

HAMID SULTAN ABU BACKER JCA
HANIPAH FARIKULLAH JCA
KAMALUDIN MD SAID JCA

  • For the appellant - Malik Imtiaz Sarwar, Eugene Roy Joseph, Yong Cheng Aik & Khoo Suk Chyi; M/s Joseph Chambers
  • For the respondent - Thevini Nayagam & Habizan Rahman; M/s Rahman Rohaida

A director or an officer of a company is liable to restore the monies belonging to the company if he carries out the business of the company in such a way as to defraud the creditors and put the company to monetary losses. Where the company has been wound up, the company's liquidator, in pursuing to recover the losses against the director or the officer as the case may be, is entitled to pursue the full exercise of statutory power available to him under the law, and no estoppel can operate against him in exercising such lawful power.
Wong Chu Lai v. Wong Ho Enterprise Sdn Bhd (In Liquidation) & Another Appeal [2020] 4 CLJ 120 [CA]

COMPANY LAW: Winding up - Liquidation - Claim against director of company - Director alleged to have carried out business of company to defraud creditors - Whether claim by liquidator barred by res judicata principle - Whether earlier suits by creditors involved liquidators - Whether officers of company personally liable for fraudulent trading in business of company - Whether liquidator established case under ss. 304 & 305 of Companies Act 1965

 

BADARIAH SAHAMID JCA
HARMINDAR SINGH DHALIWAL JCA
YEW JEN KIE JCA

(Civil Appeal No: S-02(NCVC)(W)-1893-09-2018)

  • For the appellant - Ronny Cham; M/s Ronny Cham & Co
  • For the respondent - Ting Sing Chuan & Jacques Ting Engee; M/s Ting Anuar & Co

(Civil Appeal No: S-02(NCVC)(W)-2000-09-2018)

  • For the appellant -Ting Sing Chuan & Jacques Ting Engee; M/s Ting Anuar & Co
  • For the respondent - Ronny Cham; M/s Ronny Cham & Co

Legal fees fall within the meaning of special damages. As it is with special damages, they must be specifically pleaded, strictly proved and cannot be awarded as general damages.
Lau Yang Kim v. Rescom Australia Sdn Bhd & Anor [2020] 4 CLJ 130 [HC]

DAMAGES: General damages - Legal fees - High Court ordered damages to be assessed and costs - Deputy Registrar assessed and awarded legal fees as general damages - Whether legal fees constitute general/special damages - Whether legal fees recoverable as general damages - Whether must be specifically pleaded and proved - Whether legal fees could be claimed as general damages for fraudulent misrepresentation - Whether legal fees have crystallised

 

AMARJEET SINGH JC

  • For the plaintiff - MS Rajendran & Nur Fasihah Shahrol Azam; M/s Rajen & Assocs
  • For the 1st defendant - Elson Beh & Yeoh Rui Ming; M/s Peter Ling & Co
  • For the 2nd defendant - Elson Beh & Yeoh Rui Ming; M/s Mohd Imtiaz Choong & Partners

Illegal possession of a totally protected animal or animal products under s. 41(1) of the Sabah Wildlife Conservation Enactment 1997 constitutes a serious environmental offence and will be treated as such by the courts. The sentence of 2 years' imprisonment and a fine of RM50,000 in default 12 months' jail, as so imposed by the Sessions Court on the accused herein for the offence of unauthorised possession of 8 bear feet, 8 bear teeth and 2 bear gall bladder, is clearly too lenient and inadequate. It ought to be substituted and enhanced with imprisonment for a term of 4 years and a fine of RM50,000 in default 24 months' jail.
Tijelo Jacquinn Kuin v. PP [2020] 4 CLJ 139 [HC]

CRIMINAL PROCEDURE: Appeal - Appeal against conviction - Offence under s. 41(1) of Wildlife Conservation Enactment 1997 - Accused found to be in possession of body parts belonging to sun bears - Failure to call agent provocateur - Whether fatal to the case - Whether prosecution established prima facie case against accused

CRIMINAL PROCEDURE: Sentence - Appeal against - Offence under s. 41(1) of Wildlife Conservation Enactment 1997 - Accused found to be in possession of body parts belonging to sun bears - Factors considered - Protection of biodiversity - Public interest - Whether sentence ought to be varied

 

CHRISTOPHER CHIN SOO YIN JC

  • For the appellant - Jaikul Situn; M/s MT Durasim & Co
  • For the respondent - Nartiah Sambatan; DPP

ARTICLES

LNS Article(s)

  1. VALIDITY OF THE MINISTRY OF HUMAN RESOURCES' ("MOHR") DIRECTIVE ON FORCED LEAVE DURING THE MCO PERIOD [Read excerpt]
    by SU TIANG JOO* [2020] 1 LNS(A) xxxv

  2. [2020] 1 LNS(A) xxxv
    logo
    MALAYSIA

    VALIDITY OF THE MINISTRY OF HUMAN RESOURCES' ("MOHR") DIRECTIVE ON FORCED LEAVE DURING THE MCO PERIOD

    by
    SU TIANG JOO*

    The Movement Control Order ("MCO") was issued pursuant to the Prevention and Control of Infectious Diseases Act 1988 (Act 342) ("the PCID Act") and the Police Act 1967 to restrict movement from 18-3-2020 to 1-4-2020. It has since been extended to 14-4-2020 ("the MCO period from 18-3-2020 to 14-4-2020 is referred to as the "MCO Period")

    The MOHR have issued directives[1] which essentially say that save for those providing essential services,[2] everyone else is to stay at home and not go to work. These directives in the form of Frequently Asked Questions amongst others say that:-

    1. the employer cannot direct the employee to take or deduct the employee's annual leave during the MCO Period;[3]

    2. the employer cannot force the employee to go on unpaid leave during the MCO Period purportedly because the MCO is one made under the PCID Act;[4]

    3. the employer must pay the full wages of the employee during the period the MCO is on foot;[5]

    4. there is no frustration of the Employment contract;[6]

    5. if the Employer were to breach the directives it would have committed an offence pursuant to Regulation 7 of the Prevention and Control of Infectious Diseases (Measures Within The Infected Local Areas) Regulations 2020 ("the Regulations"), and can be fined an amount not exceeding RM1000 or imprisoned for a term not exceeding 6 months or both.[7]

    . . .

    * Advocate & Solicitor


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  3. IMPACT OF COVID-19 PANDEMIC ON SHIPPING* [Read excerpt]
    by Philip Teoh** [2020] 1 LNS(A) xxxvi

  4. [2020] 1 LNS(A) xxxvi
    logo
    MALAYSIA

    IMPACT OF COVID-19 PANDEMIC ON SHIPPING*

    by
    Philip Teoh**

    The COVID-19 Pandemic still rages unabated in April 2020, ravaging and affecting lives, businesses, individuals and industries worldwide in many ways that will change the world forever.[1] The International Labour Organization predicts that as many as 25 million jobs worldwide could be wiped out by a worldwide recession brought about by the Pandemic.[2]

    In many countries, governments imposed a "lockdown" to restrict the movements of its citizens and to control the rapid spread of the Pandemic. The lockdown was implemented throughout the countries in South East Asia in stages:

    a) Malaysia: The Malaysian Government announced a national lockdown on 18 March 2020 by issuing the Movement of Control Order (Restricted Movement) initially until 31 March 2020, but extended it to 28 April 2020.[3] Specific exceptions have been given to transportation and some other essential service sectors.[4]

    . . .

    *This is an expanded version of an article published in the Maritime Executive.

    **Partner and Head of Insurance, Shipping, International Trade and Arbitration Practice, Azmi & Associates. He is also an Arbitrator with LMAA, SCMA, EMAC, Dubai, LCIA, ICC, AIAC and other International Centres.


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  5. MALAYSIAN COVID-19 ACT OF PARLIAMENT: THE LAW WE NEED [Read excerpt]
    by Ranjan N Chandran,* Chandni Anantha Krishnan, Harneshpal Karamjit Singh [2020] 1 LNS(A) xxxvii

  6. [2020] 1 LNS(A) xxxvii
    logo
    MALAYSIA

    MALAYSIAN COVID-19 ACT OF PARLIAMENT: THE LAW WE NEED

    by
    Ranjan N Chandran *
    Chandni Anantha Krishnan
    Harneshpal Karamjit Singh

    INTRODUCTION

    The Plight of the Business Owner

    The World Health Organization ("WHO") declared Coronavirus ("COVID-19") a Pandemic on 11 March 2020 and the Malaysian Government enforced the Movement Control Order ("MCO") pursuant to the Prevention and Control of Infectious Diseases Act 1988 and the Police Act 1967 from 18 March 2020.

    Since then, there have already been two Movement Control Orders ("MCO") imposed by the Government pursuant to the Prevention and Control of Infectious Diseases Act 1988 and a third already in place crippling business activities for almost 2 whole months. Barring any further extensions, various business owners would have lost six (6) weeks' worth of income, which is approximately 11.5% of their annual earnings.

    There may be possible breaches of contracts by the business owner resulting in the risk of termination of contracts with serious consequences of execution by way of Bankruptcy or Winding-Up Petitions knocking on their door. For the business owner, visits to the Courts is going to be the "the New Norm" post COVID-19 and much time will be consumed with unnecessary litigation, which will consume time and cost, instead of focusing on urgent revival of business.

    . . .

    * The authors are Advocates & Solicitors of the High Court of Malaya.


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  7. SHARIAH CRIMINAL OFFENCES IN SYNDICATE MARRIAGE FROM THE PERSPECTIVE OF ISLAMIC FAMILY LAW (FEDERAL TERRITORIES) ACT 1984 [Read excerpt]
    by Haliza A. Shukor,* Intan Nadia Ghulam Khan, Hasnizam Hashim, Nabilah Yusof [2020] 1 LNS(A) xxxiv

  8. [2020] 1 LNS(A) xxxiv
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    MALAYSIA

    SHARIAH CRIMINAL OFFENCES IN SYNDICATE MARRIAGE FROM THE PERSPECTIVE OF ISLAMIC FAMILY LAW (FEDERAL TERRITORIES) ACT 1984

    by
    Haliza A. Shukor *
    Intan Nadia Ghulam Khan
    Hasnizam Hashim
    Nabilah Yusof

    ABSTRACT

    Islamic jurisprudence has clearly set forth the laws in regulating matters pertaining to Muslim family institutions. Among the issues related to family institutions is syndicate marriage. According to a report in 2019, 70% of syndicate marriages are regarded as invalid due to its failure to fulfill the pillars of nikah. As such, it attracts various penalties under the Islamic Law Acts/Enactments. By referring to the Islamic Family Law (Federal Territories) Act 1984 (IFLA 1984), there are provisions which can be used to penalise parties who conduct or enter into a syndicate marriage. Therefore, this article will identify the relevant provisions in IFLA 1984 which considers syndicate marriage as shariah criminal offences. This article will also provide recommendations for the purpose of eradicating syndicate marriage among Muslims in Malaysia.

    . . .

    *Lecturers, Faculty Syariah and Law, Universiti Sains Islam Malaysia (USIM), Bandar Baru Nilai, Negeri Sembilan - hliza@usim.edu.my, intan@usim.edu.my, hasnizam@usim.edu.my, nabilah@usim.edu.my


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LEGISLATION HIGHLIGHTS

Principal Acts

Number Title In force from Repealing
ACT 827 Currency Act 2020 Not Yet In Force -
ACT 826 Food Donors Protection Act 2020 Not Yet In Force -
ACT 825 Anti-Fake News (Repeal) Act 2020 31 January 2020 -
ACT 824 Malaysian Health Promotion Board (Dissolution) Act 2019 1 April 2020 [PU(B) 119/2020] -
ACT 823 Finance Act 2019 Income Tax Act 1967 [Act 53] see s 3, Real Property Gains Tax Act 1976 [Act 169] see s 22, Stamp Act 1949 [Act 378] see s 27, Petroleum (Income Tax) Act 1967 [Act 543] see s 29, Sales Tax Act 2018 [Act 806] see s 35, Finance Act 2010 [Act 702] see s 37 and the Finance Act 2018 [Act 812] see s 39 -

Amending Acts

Number Title In force from Principal/Amending Act No
ACT A1617 Franchise (Amendment) Act 2020 Not Yet In Force ACT 590
ACT A1616 Central Bank of Malaysia (Amendment) Act 2020 Not Yet In Force ACT 701
ACT A1615 Industrial Relations (Amendment) Act 2020 Not Yet In Force ACT 177
ACT A1614 Labuan Business Activity Tax (Amendment) Act 2020 10 February 2020 - para 2(a) and s 13 and 15; Year of assessment 2020 and subsequent years of assessment - para 2(b) and s 3, 4, 5, 6, 7, 9, 10, 11, 12 and 14; 1 January 2019 - s 8 ACT 445
ACT A1613 Carriage of Goods by Sea (Amendment) Act 2020 Not Yet In Foce ACT 527

PU(A)

Number Title Date of Publication In force from Principal/ Amending Act No
PU(A) 118/2020 Prevention and Control of Infectious Diseases (Compounding of Offences) (Amendment) (No. 3) Regulations 2020 14 April 2020 15 April 2020 PU(A) 327/1993
PU(A) 117/2020 Prevention and Control of Infectious Diseases (Measures Within Infected Local Areas) (No. 3) Regulations 2020 14 April 2020 15 April 2020 to 28 April 2020 ACT 342
PU(A) 116/2020 Prevention and Control of Infectious Diseases (Declaration of Infected Local Areas) (Extension of Operation) (No. 2) Order 2020 14 April 2020 15 April 2020 to 28 April 2020 ACT 342
PU(A) 115/2020 Employees' Social Security (Employees' Social Security (General) Regulations 1971) (Temporary Modification) Regulations 2020 6 April 2020 April 2020 until September 2020 ACT 4
PU(A) 114/2020 Employment Insurance System (Employment Insurance System (Registration and Contribution) Regulations 2017) (Temporary Modification) Regulations 2020 6 April 2020 April 2020 until September 2020 ACT 800

PU(B)

Number Title Date of Publication In force from Principal/ Amending Act No
PU(B) 200/2020 Temporary Exercise of Ministerial Functions 15 April 2020 16 April 2020 ACT 388
PU(B) 199/2020 Change of Title of Office of Member of the National Wages Consultative Council 14 April 2020 15 April 2020 ACT 732
PU(B) 198/2020 Notification of Values of Crude Palm Oil Under Section 12 9 April 2020 1 May 2020 to 31 May 2020 ACT 235
PU(B) 197/2020 Notification of Values of Crude Petroleum Oil Under Section 12 9 April 2020 10 April 2020 to 23 April 2020 ACT 235
PU(B) 196/2020 Appointment of Member of the Commission 9 April 2020 10 April 2020 ACT 695

Legislation Alert

Updated

Act/Principal No. Title Amended by In force from Section amended
PU(A) 327/1993 Peraturan-Peraturan Pencegahan Dan Pengawalan Penyakit Berjangkit (Pengkompaunan Kesalahan-Kesalahan) 1993 PU(A) 118/2020 15 April 2020 Jadual Pertama
PU(A) 327/1993 Prevention and Control of Infectious Diseases (Compounding of Offences) Regulations 1993 PU(A) 118/2020 15 April 2020 First Schedule
PU(B) 470/2017 Appointment and Revocation of Appointment of Members of the National Wages Consultative Council PU(B) 199/2020 15 April 2020 First Schedule
PU(A) 99/1971 Employees� Social Security (General) Regulations 1971 PU(A) 115/2020 April 2020 until September 2020 Subregulation 32(1)
PU(A) 452/2017 Employment Insurance System (Registration and Contribution) Regulations 2017 PU(A) 114/2020 April 2020 until September 2020 Subregulation 9(1)

Revoked

Act/Principal No. Title Revoked by In force from
PU(A) 309/2009 Price Control (Fixing of Maximum Price) (No. 2) Order 2009 PU(A) 93/2020 20 March 2020
PU(A) 77/2020 Ministers of the Federal Government Order 2020 PU(A) 84/2020 1 March 2020
PU(A) 451/1999 Environmental Quality (Refrigerant Management) Regulations 1999 PU(A) 79/2020 1 June 2020
PU(A) 132/2019 Ministers of the Federal Government Order 2019 PU(A) 77/2020 24 February 2020
PU(A) 379/2006 Control of Supplies (Marking of Scheduled Article) Order 2006 PU(A) 63/2020 21 February 2020