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Issue #22/2020
21 May 2020

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New This Week

CASE(S) OF THE WEEK

JABATAN PENDAFTARAN NEGARA & ORS v.
SEORANG KANAK-KANAK & ORS;
MAJLIS AGAMA ISLAM NEGERI JOHOR (INTERVENER)
[2020] 4 CLJ 731
FEDERAL COURT, PUTRAJAYA
ROHANA YUSUF PCA; AZAHAR MOHAMED CJ (MALAYA); DAVID WONG DAK WAH CJ (SABAH AND SARAWAK); MOHD ZAWAWI SALLEH FCJ; ABANG ISKANDAR FCJ; IDRUS HARUN FCJ; NALLINI PATHMANATHAN FCJ
[CIVIL APPEAL NO: 01(f)-43-09-2017(W)]
13 FEBRUARY 2020

The decision of the Director General of National Registration (DGNR) in declining to allow a Malay Muslim illegitimate child to bear his biological father's name in his birth certificate is legal, rational and reasonable, and does not in any way militate against the purport of s. 13A(2) of the Births and Deaths Registration Act 1957 (BDRA) or the child's fundamental constitutional liberties. Section 13A BDRA, which allows a child's surname to be stated in his birth certificate, cannot apply to a Malay Muslim child, since a Malay Muslim child, in reality and by culture and tradition, never carries a surname, and also because the biological father's name by definition does not constitute a surname. Be that as it may, and whilst the DGNR in so registering the birth may apply the child's Islamic personal law to the registration process, his decision to ascribe "bin Abdullah" to the child's name upon the adoption of a fatwa issued by the National Fatwa Committee (NFC) is wrong in law and devoid of any legal basis. As the child was born in the State of Johor, and the State has not adopted nor gazetted the NFC's fatwa, the same cannot apply to the State, and consequently, the DGNR, in imposing the fatwa on the child, has usurped the power of the Fatwa Committee of Johor and violated ss. 49 and 52 of the Administration of the Religion of Islam (State of Johor) Enactment 2003. Consequentially, the words "bin Abdullah" must be removed from the child's birth certificate.

ADMINISTRATIVE LAW: Judicial review - Challenge against decision of Director General of National Registration ('DGNR') - Application by Malay Muslim illegitimate child - Application to enter name of father of child in child's Birth Register - DGNR issued child's birth certificate and entered child's full name with 'bin Abdullah' instead of 'bin' father's name - Application to correct child's name from 'bin Abdullah' to 'bin' father's name dismissed by DGNR - Whether DGNR's refusal to correct or alter particulars 'bin Abdullah' to be substituted with 'bin' father's name in Birth Register made in accordance with law - Whether s. 13A of Births and Deaths Registration Act 1957 ('BDRA') applies to registration of births of Muslim children - Whether enabling child to be named with personal name of person acknowledged to be father of child - Whether 'surname' in s. 13A of BDRA includes patronymic surnames - Whether Malays have surnames

CONSTITUTIONAL LAW: Fundamental liberties - Personal liberty - Challenge against decision of Director General of National Registration ('DGNR') - Application by Malay Muslim illegitimate child - Application to enter name of father of child in child's Birth Register - DGNR issued child's birth certificate and entered child's full name with 'bin Abdullah' instead of 'bin' father's name - Child's birth certificate contained notation 'Permohonan Seksyen 13' as acknowledgment of registration of birth for illegitimate child - Whether entry of 'bin Abdullah' and notation 'Permohonan Seksyen 13' in child's birth certificate infringed child's fundamental liberties

ISLAMIC LAW: Legislation - Islamic law of State - Challenge against decision of Director General of National Registration ('DGNR') - Application by Malay Muslim illegitimate child - Application to enter name of father of child in child's Birth Register - DGNR issued child's birth certificate and entered child's full name with 'bin Abdullah' instead of 'bin' father's name - Child's birth certificate contained notation 'Permohonan Seksyen 13' as acknowledgment of registration of birth for illegitimate child - DGNR relied on fatwa by National Fatwa Committee ('NFC') in arriving at decision - Whether, in performing registration of births of Muslim children, Registrar of Births and Deaths may refer to and rely on sources of Islamic law on legitimacy - Whether DGNR could rely on fatwa by NFC when child is subjected to Islamic laws of State - Whether illegitimate Muslim child could be ascribed to name of father in Islam - Islamic Family Law (State of Johor) Enactment 2003, ss. 52 & 111


SABAH DEVELOPMENT BANK BHD v. PETRON OIL (M) SDN BHD [2020] 4 CLJ 811
FEDERAL COURT, PUTRAJAYA
TENGKU MAIMUN TUAN MAT CJ; AHMAD MAAROP PCA; AZAHAR MOHAMED CJ (MALAYA); NALLINI PATHMANATHAN FCJ; RHODZARIAH BUJANG JCA
[CIVIL APPEAL NO: 02(f)-27-04-2018(S)]
17 FEBRUARY 2020

An assignee Bank who has created an absolute and unconditional assignment with an assignor and has thereby obtained an irrevocable transfer of the latter's legal rights and beneficial interests over a certain third party's contract proceeds, is entitled to recover the remittances and funds due under the said contract. Further, such of its entitlement as a lawful assignee will take precedence and priority over other competing claims to the same proceeds, including, as the case may be, claims by a purported trustee or constructive trustee to the said proceeds. The bank's ability to recover such proceeds at the expense of such trustee cannot at all be unconscionable, as otherwise, the security given by a borrower assignor to a banking institution would be rendered nugatory, or put in jeopardy by a finding of a trust or constructive trust by a third party claiming the same funds.

CONTRACT: Agreement - Sale of goods - Claim for recovery of debt by creditor - Absolute assignment of contract proceeds to bank as security for credit facilities - Effect of absolute assignment - Whether entitlement to recover proceeds transferred to bank - Whether creditor's claim premised on trust and/or constructive trust prevailed over bank's absolute assignment - Whether bank held monies in constructive trust for creditor - Whether freezing of first account and creation of subsequent account affected validity of absolute assignment - Civil Law Act 1956, s. 4(3)

CONTRACT: Assignment - Absolute assignment - Claim for recovery of debt by creditor - Absolute assignment of contract proceeds to bank as security for credit facilities - Effect of absolute assignment - Whether entitlement to recover proceeds transferred to bank - Whether creditor's claim premised on trust and/or constructive trust prevailed over bank's absolute assignment - Whether bank held monies in constructive trust for creditor - Whether freezing of first account and creation of subsequent account affected validity of absolute assignment - Civil Law Act 1956, s. 4(3)

TRUSTS: Constructive trust - Existence of trust - Claim for recovery of debt by creditor - Absolute assignment of contract proceeds to bank as security for credit facilities - Whether creditor's claim premised on trust and/or constructive trust prevailed over bank's absolute assignment - Whether bank held monies in constructive trust for creditor


JUDICIAL QUOTES

"Section 77 of the Strata Management Act 2013 uses the words "shall by virtue of this section be guaranteed by the proprietors". It must be accepted at the moment that the Act imposes a mandatory obligation on the proprietors to pay any amount incurred by the management corporation in the course of the exercise of any of its powers or functions or carrying out its duties or obligations. It is our preliminary view that the law is such that the proprietors of strata units in the development project must settle any outstanding amount owed to the management corporation before they can sell or transfer the properties to third parties. Therefore, the settlement of any outstanding amount due and owing by the proprietors to the management corporation must be observed or followed before the transfer of the properties can be effected or executed. This means that it has to be a condition precedent in the legal documents of transfer or sales of strata unit shares prepared by lawyers." - per Kamaludin Md Said JCA in Wisma Cosway Management Corporation v. Dubon Bhd [2019] 3 CLJ 240

For more Judicial Quotes, please login and view under "References" or subscribe to CLJLaw.


LATEST CASES

Legal Network Series

[2019] 1 LNS 102

WONG HOU LIANG & ANOR v. WONG KIE YIK & ORS

Parties are estopped from re-litigating similar issues which have been decided by a foreign court of competent jurisdiction unless parties are able to show any special circumstances which would render it unjust to hold that foreign judgment issue estoppel applies in the present proceedings.

CIVIL PROCEDURE: Res judicata - Estoppel - Foreign judgment issue estoppel - Action premised on minority oppression - Issues raised in present proceedings were decided in earlier proceedings by British Virgin Island ('BVI') Court - BVI judgment pending appeal - Whether BVI Court is a court of competent jurisdiction - Whether BVI judgment was final and conclusive - Whether issues in present proceedings and BVI Court proceedings were identical - Whether plaintiffs have shown any special circumstances which would render it unjust to hold that foreign judgment issue estoppel applies in the present proceedings

  • For the plaintiffs - Alvin Yong & Shirleen Ong; M/s Alvin Yong
  • For the 1st to 3rd defendants - George Lim & Stanley Eddy; M/s Battenberg & Talma
  • For the 4th defendant - Sim Hui Chuang; M/s Reddi & Co

[2019] 1 LNS 113

XTREME ENGINEERING SDN BHD v. PARAGON PROMENADE SDN BHD

1. A sub-contractor is entitled to claim for payment pursuant to a settlement agreement upon fulfilment of all conditions precedent stated therein. A main contractor seeking to deduct costs of rectification works should limit the same within the scope of work done by the sub-contractor and as covered by the settlement agreement.

2. The issuance of a certificate of completion and compliance by an architect signifies practical completion and therefore purchasers are entitled to occupy their respective units without having to wait for issuance of certificate of practical completion which is a mere formality.

CONTRACT: Building contract - Sub-contract - Claim filed by sub-contractor - Sub-contract mutually terminated and settlement agreement reached on payment for work done and defective works - Main contractor failed to make balance payment and utilised the same to set off cost for rectification works - Whether main contractor was seeking to deduct cost of rectification of works beyond the scope of works done by sub-contractor and covered by the settlement agreement - Whether quantum of set-off was unilaterally decided - Whether sub-contractor had fulfilled conditions precedent in relation to payment

CONTRACT: Building contract - Practical completion - Purchasers already occupying their units - Certificate of completion and compliance ('CCC') issued - Whether issuance of CCC signifies practical completion - Whether issuance of certificate of practical completion is a mere formality

  • For the plaintiff - Ramesh Kanapathy; M/s Chellam Wong
  • For the defendant - Dinesh Nandrajog & Wong Shu Min; M/s Nandrajog

[2019] 1 LNS 116

LING PEEK HOE & ANOR v. DING SIEW CHING & ORS

An application for review of a Federal Court's order may be considered special circumstances warranting a stay of proceedings if the outcome of the review before the Federal Court would be rendered nugatory should stay of proceedings be refused.

CIVIL PROCEDURE: Stay of proceedings - Application for - Stay of contempt proceedings pending an application for review of Federal Court's order - Special circumstances - Whether there exists special circumstances to allow application for stay - Whether application for review which was pending before the Federal Court had fulfilled the test of special circumstances - Whether outcome of review before Federal Court would be rendered nugatory should stay be refused

  • For the applicant/defendant 2 - 5 - Mohamed Haniff Khatri Abdullah & Irzan Iswat Mohd Noor; M/s Haniff Khatri
  • For the respondent/plaintiff - Hong Chong Hang & Edmund Lim Yun; M/s Hong Chew King & Co

[2019] 1 LNS 125

FEEZREE FERDAUSE lwn. PP

Sabitan terhadap tertuduh boleh dibuat tanpa keterangan sokongan sekiranya keterangan mangsa kukuh dan menyakinkan.

UNDANG-UNDANG JENAYAH: Kanun Keseksaan - Seksyen 376 - Kesalahan rogol - Tertuduh dikenalpasti mangsa melalui kawad cam dan pengecaman dari kandang orang salah - Penggantungan penuh kepada keterangan mangsa - Mangsa dalam keadaan trauma - Sama ada pihak pendakwaan telah membuktikan suatu kes prima facie terhadap tertuduh - Sama ada pengecaman tertuduh adalah konsisten - Sama ada keterangan mangsa telah disokong sewajarnya oleh keterangan saksi-saksi pendakwaan yang lain

PROSEDUR JENAYAH: Rayuan - Rayuan terhadap hukuman - Kesalahan rogol - Hukuman secara serentak bagi 3 kesalahan - Kesalahan-kesalahan berlaku dalam satu kejadian yang sama dan melibatkan mangsa yang sama - Sama ada hukuman penjara yang berjalan secara berasingan akan mendatangkan kesan yang teruk kepada tertuduh

  • Bagi pihak perayu - Fakhrul Redha & Wan Azwan Aiman; T/n Azwan Aiman Fakhrul & Co
  • Bagi pihak responden - TPR Poh Yih Tinn & TPR Mohd Raimi Ramly; Bahagian Pendakwaan; Jabatan Peguam Negara; Pusat Pentadbiran Kerajaan Persekutuan

[2019] 1 LNS 131

PP lwn. MOHAMAD NAZRAN MOHD ASRI & SATU LAGI

Apabila dua atau lebih tertuduh dihukum untuk penglibatan mereka di dalam kesalahan yang sama, hukuman yang patut dijatuhkan ke atas mereka sepatutnya sama, kecuali jika ada perbezaan yang relevan di dalam tanggungjawab mereka di dalam kesalahan itu.

PROSEDUR JENAYAH: Penghukuman - Prinsip-prinsip - Pengakuan bersalah - Kesalahan menyembunyikan dan melindungi imigran - Kewujudan dua atau lebih tertuduh - Mangsa dalam keadaan lemah - Sama ada perbezaan peranan tertuduh-tertuduh boleh menjurus kepada ketidakseimbangan di dalam hukuman mereka - Sama ada pengakuan salah tertuduh-tertuduh telah menjimatkan kos perbicaraan - Sama ada faktor kepentingan awam telah diambil kira - Sama ada pemenjaraan yang panjang akan memberi sebarang manfaat kepada kepentingan awam

  • Bagi pihak pendakwaan - TPR Hajarul Falenna; Pejabat Penasihat Undang-Undang Negeri Kelantan
  • Bagi pihak OKT 1 - Hasif Hassan; T/n Hasif Kumar & Co
  • Bagi pihak OKT 2 - Mohd Hayyatuddin Muhamad; T/n Mohd Hayyatuddin & Co

CLJ 2020 Volume 4 (Part 6)

The decision of the Director General of National Registration (DGNR) in declining to allow a Malay Muslim illegitimate child to bear his biological father's name in his birth certificate is legal, rational and reasonable, and does not in any way militate against the purport of s. 13A(2) of the Births and Deaths Registration Act 1957 (BDRA) or the child's fundamental constitutional liberties. Section 13A BDRA, which allows a child's surname to be stated in his birth certificate, cannot apply to a Malay Muslim child, since a Malay Muslim child, in reality and by culture and tradition, never carries a surname, and also because the biological father's name by definition does not constitute a surname. Be that as it may, and whilst the DGNR in so registering the birth may apply the child's Islamic personal law to the registration process, his decision to ascribe "bin Abdullah" to the child's name upon the adoption of a fatwa issued by the National Fatwa Committee (NFC) is wrong in law and devoid of any legal basis. As the child was born in the State of Johor, and the State has not adopted nor gazetted the NFC's fatwa, the same cannot apply to the State, and consequently, the DGNR, in imposing the fatwa on the child, has usurped the power of the Fatwa Committee of Johor and violated ss. 49 and 52 of the Administration of the Religion of Islam (State of Johor) Enactment 2003. Consequentially, the words "bin Abdullah" must be removed from the child's birth certificate.
Jabatan Pendaftaran Negara & Ors v. Seorang Kanak-kanak & Ors; Majlis Agama Islam Negeri Johor (Intervener) [2020] 4 CLJ 731 [FC]

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ADMINISTRATIVE LAW: Judicial review - Challenge against decision of Director General of National Registration ('DGNR') - Application by Malay Muslim illegitimate child - Application to enter name of father of child in child's Birth Register - DGNR issued child's birth certificate and entered child's full name with 'bin Abdullah' instead of 'bin' father's name - Application to correct child's name from 'bin Abdullah' to 'bin' father's name dismissed by DGNR - Whether DGNR's refusal to correct or alter particulars 'bin Abdullah' to be substituted with 'bin' father's name in Birth Register made in accordance with law - Whether s. 13A of Births and Deaths Registration Act 1957 ('BDRA') applies to registration of births of Muslim children - Whether enabling child to be named with personal name of person acknowledged to be father of child - Whether 'surname' in s. 13A of BDRA includes patronymic surnames - Whether Malays have surnames

CONSTITUTIONAL LAW: Fundamental liberties - Personal liberty - Challenge against decision of Director General of National Registration ('DGNR') - Application by Malay Muslim illegitimate child - Application to enter name of father of child in child's Birth Register - DGNR issued child's birth certificate and entered child's full name with 'bin Abdullah' instead of 'bin' father's name - Child's birth certificate contained notation 'Permohonan Seksyen 13' as acknowledgment of registration of birth for illegitimate child - Whether entry of 'bin Abdullah' and notation 'Permohonan Seksyen 13' in child's birth certificate infringed child's fundamental liberties

ISLAMIC LAW: Legislation - Islamic law of State - Challenge against decision of Director General of National Registration ('DGNR') - Application by Malay Muslim illegitimate child - Application to enter name of father of child in child's Birth Register - DGNR issued child's birth certificate and entered child's full name with 'bin Abdullah' instead of 'bin' father's name - Child's birth certificate contained notation 'Permohonan Seksyen 13' as acknowledgment of registration of birth for illegitimate child - DGNR relied on fatwa by National Fatwa Committee ('NFC') in arriving at decision - Whether, in performing registration of births of Muslim children, Registrar of Births and Deaths may refer to and rely on sources of Islamic law on legitimacy - Whether DGNR could rely on fatwa by NFC when child is subjected to Islamic laws of State - Whether illegitimate Muslim child could be ascribed to name of father in Islam - Islamic Family Law (State of Johor) Enactment 2003, ss. 52 & 111

ROHANA YUSUF PCA
AZAHAR MOHAMED CJ (MALAYA)
DAVID WONG DAK WAH CJ (SABAH AND SARAWAK)
MOHD ZAWAWI SALLEH FCJ
ABANG ISKANDAR FCJ
IDRUS HARUN FCJ
NALLINI PATHMANATHAN FCJ

  • For the appellants - Suzana Atan, Arik Sanusi Yeop Johari, Shamsul Bolhassan, Zawawi Ghazali & Mazlifah Ayob; SFCs
  • For the respondents - K Shanmuga, Nizam Bashir, Surendra Ananth & Kee Hui Yee; M/s Nizam Bashir & Assocs
  • For the intervener - Sulaiman Abdullah, Ikbal Salam, Zainul Rijal Abu Bakar, Faizal Ahmad & Zulsyahmi Husaini Kamarulzaman; M/s Ikbal Salam & Assocs

Watching brief:

  • For the Malaysia Bar Council - Goh Siu Lin; M/s Kee Sern, Siu & Huey
  • For the Persatuan Peguam-Peguam Muslim Malaysia -
           Hafez Zalkapli; M/s Mohd Amin Ng & Assocs
           Noor Adzrie Mohd Noor & Mohd Akmal Abu Bakar; M/s Zainul Rijal Talha & Ami
  • Voice of children - Siera Sacha; M/s Siera & Sharizad
  • Amicus curie - Halimatunsa'diah Abu Ahmad & Azlan Sulaiman; M/s Adi & Co

An assignee Bank who has created an absolute and unconditional assignment with an assignor and has thereby obtained an irrevocable transfer of the latter's legal rights and beneficial interests over a certain third party's contract proceeds, is entitled to recover the remittances and funds due under the said contract. Further, such of its entitlement as a lawful assignee will take precedence and priority over other competing claims to the same proceeds, including, as the case may be, claims by a purported trustee or constructive trustee to the said proceeds. The bank's ability to recover such proceeds at the expense of such trustee cannot at all be unconscionable, as otherwise, the security given by a borrower assignor to a banking institution would be rendered nugatory, or put in jeopardy by a finding of a trust or constructive trust by a third party claiming the same funds.
Sabah Development Bank Bhd v. Petron Oil (M) Sdn Bhd [2020] 4 CLJ 811 [FC]

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CONTRACT: Agreement - Sale of goods - Claim for recovery of debt by creditor - Absolute assignment of contract proceeds to bank as security for credit facilities - Effect of absolute assignment - Whether entitlement to recover proceeds transferred to bank - Whether creditor's claim premised on trust and/or constructive trust prevailed over bank's absolute assignment - Whether bank held monies in constructive trust for creditor - Whether freezing of first account and creation of subsequent account affected validity of absolute assignment - Civil Law Act 1956, s. 4(3)

CONTRACT: Assignment - Absolute assignment - Claim for recovery of debt by creditor - Absolute assignment of contract proceeds to bank as security for credit facilities - Effect of absolute assignment - Whether entitlement to recover proceeds transferred to bank - Whether creditor's claim premised on trust and/or constructive trust prevailed over bank's absolute assignment - Whether bank held monies in constructive trust for creditor - Whether freezing of first account and creation of subsequent account affected validity of absolute assignment - Civil Law Act 1956, s. 4(3)

TRUSTS: Constructive trust - Existence of trust - Claim for recovery of debt by creditor - Absolute assignment of contract proceeds to bank as security for credit facilities - Whether creditor's claim premised on trust and/or constructive trust prevailed over bank's absolute assignment - Whether bank held monies in constructive trust for creditor

 

TENGKU MAIMUN TUAN MAT CJ
AHMAD MAAROP PCA
AZAHAR MOHAMED CJ (MALAYA)
NALLINI PATHMANATHAN FCJ
RHODZARIAH BUJANG JCA

  • For the appellant - Saiful Azian Mokhtar; M/s Jayasuriya Kah & Co
  • For the respondent - Douglas Lind & Delonia Chong; M/s Lind Willie Wong & Chin

A liquidator appointed by the court is considered as an officer of the court and leave is needed before an action can be commenced against him. This said, a third party who is not a creditor or contributory of the wound up company lacks the capacity to bring an action against the liquidator personally under the inherent jurisdiction of the court for any breach of contract allegedly committed by the company in liquidation; an application for leave to initiate such a contingent claim by such third party should be dismissed by the court.
Tee Siew Kai v. Machang Indah Development Sdn Bhd (In Liquidation) [2020] 4 CLJ 841 [FC]

COMPANY LAW: Liquidators - Personal capacity - Application for leave to proceed against wound up company's liquidator in personal capacity - Whether applicant suffered losses as consequence of alleged breach of agreements between applicant and wound up company - Whether breach, if any, could only subsist between applicant and wound up company - Whether liquidator merely agent and acting on behalf of wound up company's behalf - Whether liquidator personally liable - Whether liquidator abused his office or committed misfeasance - Whether applicant sought to initiate action against wrong party - Whether applicant who is neither creditor nor contributory of wound up company entitled to leave to sue liquidator of wound up company in his personal capacity - Companies Act 1965, s. 236(2)(c)

COMPANY LAW: Liquidation - Company wound up - Application for leave to proceed against wound up company's liquidator in personal capacity - Whether applicant suffered losses as consequence of alleged breach of agreements between applicant and wound up company - Whether breach, if any, could only subsist between applicant and wound up company - Whether liquidator merely agent and acting on behalf of wound up company - Whether liquidator personally liable - Whether liquidator abused his office or committed misfeasance - Whether applicant sought to initiate action against wrong party - Whether applicant who is neither creditor nor contributory of wound up company entitled to leave to sue liquidator of wound up company in his personal capacity - Companies Act 1965, s. 236(2)(c)

 

 

TENGKU MAIMUN TUAN MAT CJ
AZAHAR MOHAMED CJ (MALAYA)
DAVID WONG DAK WAH CJ (SABAH AND SARAWAK)
IDRUS HARUN FCJ
NALLINI PATHMANATHAN FCJ

  • For the appellant - Kirubakaran, Desmond Ng Keen Leong & Cheyenne Chan Pui See; M/s Shui-Tai
  • For the respondent - Bastian Vendargon, S Raven & Siti Nur Amirah Aqilah Adzman; M/s S Ravenesan

In an appeal to the Court of Appeal against dismissal of a judicial review application, the court was guided by Practice Direction No 1 of 2017 which provided explicitly that in a matter involving certiorari, leave of court is not required. The court viewed that the value of the subject matter provided under s. 68(1)(a) of the Courts of Judicature Act 1964 was an irrelevant consideration; it is more important to consider if the appeal meets the real prospect of success test.
Country Garden Danga Bay Sdn Bhd v. Tribunal Tuntutan Pembeli Rumah & Anor [2020] 4 CLJ 865 [CA]

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ADMINISTRATIVE LAW: Remedies - Judicial review - Appeal against dismissal of judicial review application - Whether leave of Court of Appeal required - Whether leave required where value of subject matter less than RM250,000 - Whether leave serves as filter against frivolous or unmeritorious proceedings - Practice directions - Whether compliance important - Whether issued to streamline court process - Whether judicial review allows courts to review administrative or quasi-judicial decision by public authority - Whether more appropriate to consider if appeals meet test of real prospect of success rather than value of claim - Courts of Judicature Act 1964, s. 68(1)(a)

CIVIL PROCEDURE: Appeal - Leave to appeal - Appeal against dismissal of judicial review application - Whether leave of Court of Appeal required - Whether leave required where value of subject matter less than RM250,000 - Whether leave serves as filter against frivolous or unmeritorious proceedings - Practice directions - Whether compliance important - Whether issued to streamline court process - Whether more appropriate to consider if appeals meet test of real prospect of success rather than value of claim - Courts of Judicature Act 1964, s. 68(1)(a)

 

HARMINDAR SINGH DHALIWAL JCA
YEW JEN KIE JCA
NOR BEE ARIFFIN JCA

  • For the applicant - Leonard Yeoh, Chuah Chong Ping; M/s Tay & Partners
  • For the respondents - Viola De Cruz, Vinobha Anthony Doss; M/s V L DeCruz & Co

Where an appellate court has found that a prima facie case has been established against an accused and has in consequence reverted the matter to the lower court for his defence to be called, it is no longer open for the lower court to embark on a re-evaluation of the evidence as so adduced by the prosecution in the trial. Whilst the learned Magistrate is free to disagree with the appellate court's decision, he must obey it. Judicial discipline and the doctrine of stare decisis prohibit him from defying the order, lest there will be chaos in the administration of justice in this country.
PP v. Prabu Nadaraja [2020] 4 CLJ 871 [CA]

CRIMINAL PROCEDURE: Appeal - Appellate intervention - High Court affirmed order of acquittal and discharge of accused by Magistrate at close of prosecution's case - Court of Appeal found prima facie case established and case reverted for accused to enter defence - Magistrate again acquitted accused on ground that prosecution failed to prove case beyond reasonable doubt - Whether Magistrate allowed to revisit prosecution's evidence after Court of Appeal found prima facie case - Whether amounted to serious error warranting appellate intervention

 

 

AHMADI ASNAWI JCA
ABDUL RAHMAN SEBLI JCA
KAMARDIN HASHIM JCA

  • For the appellant - Tengku Intan Suraya Tengku Ismail; DPP
  • For the respondent - Hanif Hassan; M/s Hanif Hassan & Co

ARTICLES

LNS Article(s)

  1. MEWAH-OILS SDN BHD v. LUSHING TRADERS PTE LTD - COURT OF APPEAL DECISION: A CRITICAL ANALYSIS* [Read excerpt]
    by ARUN KASI** [2020] 1 LNS(A) liv

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

    MEWAH-OILS SDN BHD v. LUSHING TRADERS PTE LTD -
    COURT OF APPEAL DECISION: A CRITICAL ANALYSIS*


    by
    ARUN KASI**

    ABSTRACT

    This case was unanimously decided by the Court of Appeal on 14 February 2017, reported as [2018] 5 CLJ 185 and [2017] 2 MLJ 592. The decision of the High Court appeared in [2015] 1 LNS 1217 and [2016] 6 AMR 616.

    This case arose from mis-delivery by a vessel that deviated en route from Indonesia to Bangladesh to deliver half a million tons of crude palm worth about USD2 million, consigned to the order of a buyer, at Port Klang to an unauthorised person who claimed to have purchased them bona fide from an unauthorised seller. At the time of mis-delivery, the buyer did not hold the bill of lading, but held it subsequently, whilst the buyer had paid in full for the cargo in advance of shipment. The buyer then sued the unauthorised person for conversion. This was not the popular type of case where the holder of the bill sues the carrier.

    . . .

    * © Arun Kasi, 2020.

    ** Advocate & Solicitor of High Court of Malaya; Fellow of Chartered Institute of Arbitrators, London.


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  3. CAN CHINA BE SUED IN A CLASS-ACTION LAWSUIT OVER THE SARS-COV 2 OR COVID-19 PANDEMIC IN MALAYSIA? [Read excerpt]
    by Kandiah Chelliah* [2020] 1 LNS(A) lv

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

    CAN CHINA BE SUED IN A CLASS-ACTION LAWSUIT
    OVER THE SARS-COV 2 OR COVID-19 PANDEMIC IN MALAYSIA?


    by
    Kandiah Chelliah*

    Six lawsuits have been filed against China in the U.S. Federal Courts seeking damages for deaths, injuries and economic losses caused by Covid-19. The States that filed are California, Florida, Nevada, Pennsylvania and Texas - class action suits filed on behalf of persons and businesses.

    The state of Missouri’s Attorney - General Eric Schmitt, sued China on similar grounds on behalf of itself and residents, and Mississippi too has indicated its plans to file similar proceedings.

    In the United Kingdom, the Henry Jackson Society, a right-wing group has announced that it will file a suit if the U.K. government fails to do so.

    . . .

    *Advocate & Solicitor


    Please subscribe to cljlaw or login for the full article.
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 31 March 2020 [PU(B) 166/2020] -
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) 164/2020 Private Higher Educational Institutions (Exemption To Kolej Masa) Order 2020 19 May 2020 20 May 2020 ACT 555
PU(A) 163/2020 Private Higher Educational Institutions (Exemption To Asia College Of Exercise And Sport Medicine (ACESM)) Order 2020 19 May 2020 20 May 2020 ACT 555
PU(A) 162/2020 Income Tax (Deduction For Expenses In Relation To Secretarial Fee And Tax Filing Fee) Rules 2020 19 May 2020 Year of assessment 2020 ACT 53
PU(A) 161/2020 Price Control And Anti-Profiteering (Price Marking Of Price-Controlled Goods) (No. 3) Order 2020 19 May 2020 28 May 2020 to 3 June 2020 ACT 723
PU(A) 160/2020 Price Control And Anti-Profiteering (Determination Of Maximum Price) (No. 5) Order 2020 19 May 2020 28 May 2020 to 3 June 2020 ACT 723

PU(B)

Number Title Date of Publication In force from Principal/ Amending Act No
PU(B) 229/2020 Notice Of Designation Of Site As Heritage Site 20 May 2020 21 May 2020 ACT 645
PU(B) 228/2020 Notification Under Subregulation 3(3) For The Purpose Of By-Election For The Seat Of The State Assembly N.23 Chini In The State Of Pahang 15 May 2020 Specified in column (2) of the Schedule PU(A) 185/2003
PU(B) 227/2020 Notification Under Paragraph 3(1)(e) For The Purpose Of By-Election For The Seat Of The State Assembly N.23 Chini In The State Of Pahang 15 May 2020 16 May 2020 PU(A) 185/2003
PU(B) 226/2020 Notice To Hold A By-Election Of A Member Of The Legislative Assembly Of The State Of Pahang For The Constituency Of N.23 Chini 15 May 2020 16 May 2020 PU(A) 386/1981
PU(B) 225/2020 Determination Of Electoral Roll For The By-Election Of N.23 Chini 15 May 2020 16 May 2020 PU(A) 293/2002

Legislation Alert

Updated

Act/Principal No. Title Amended by In force from Section amended
PU(A) 21/2004 Stamp Duty (Exemption) (No. 4) Order 2004 PU(A) 154/2020 13 September 2003 Paragraph 2
PU(A) 269/2019 Peraturan-Peraturan Cukai Perkhidmatan (Perkhidmatan Digital) 2019 PU(A) 150/2020 14 Mei 2020 Bahagian baharu IIA
PU(A) 214/2018 Peraturan-Peraturan Cukai Perkhidmatan 2018 PU(A) 149/2020 14 Mei 2020 Jadual Pertama
PU(A) 380/2018 Service Tax (Persons Exempted From Payment of Tax) Order 2018 PU(A) 151/2020 14 May 2020 Schedule
PU(A) 269/2019 Service Tax (Digital Services) Regulations 2019 PU(A) 150/2020 14 May 2020 New Part IIA

Revoked

Act/Principal No. Title Revoked by In force from
PU(A) 336/2014 Income Tax (Deduction For Expenses in Relation to Secretarial Fee and Tax Filing Fee) Rules 2014 PU(A) 162/2020 Year of assessment 2020
PU(A) 133/2020 Peraturan-Peraturan Pencegahan Dan Pengawalan Penyakit Berjangkit (Langkah-Langkah Di Dalam Kawasan Tempatan Jangkitan) (No. 4) 2020 [Dibatalkan Oleh Pu(A) 136/2020] PU(A) 136/2020 4 Mei 2020 hingga 12 Mei 2020
PU(B) 80/2019 Notification of Values of Imported Completely Built-Up Motor Vehicles (New) Under Section 12 PU(B) 217/2020 30 April 2020
PU(A) 136/2012 Malaysia Deposit Insurance Corporation (Payment of Annual Premium in Respect of Insurer Members) Order 2012 PU(A) 131/2020 29 April 2020
PU(A) 30/2011 Malaysia Deposit Insurance Corporation (Payment of Annual Premium in Respect of Deposit-Taking Members) Order 2011 PU(A) 130/2020 29 April 2020