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Issue #23/2020
28 May 2020

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New This Week

CASE(S) OF THE WEEK

MARIA ELVIRA PINTO EXPOSTO v. PP [2020] 5 CLJ 1
FEDERAL COURT, PUTRAJAYA
TENGKU MAIMUN TUAN MAT CJ; AZAHAR MOHAMED CJ (MALAYA); MOHD ZAWAWI SALLEH FCJ;
IDRUS HARUN FCJ; NALLINI PATHMANATHAN FCJ
[CRIMINAL APPEAL NO: 05(M)-142-06-2018(B)]
26 MARCH 2020

In a trial for drug trafficking under s. 39B(1) of the Dangerous Drugs Act 1952 (DDA), it is procedurally proper and lawful for the trial judge, after making a finding of presumed knowledge of the drugs against the accused under s. 37(d) of the DDA at the prosecution stage, to have again visited the issue on the element of knowledge at the defence stage. Such an approach, far from being misguided or perverse, is in harmony with s. 182A of the Criminal Procedure Code which calls for the court to consider all the evidence adduced at the close of the trial. This said, where the defence of innocent carrier premised upon the assertion that the accused was a victim of an internet romance scheme is proffered, and such defence was disclosed contemporaneously with the discovery of the drugs, and supported not only by an uncontroverted evidence of an expert witness but by an explanation as to how the accused came to possess the drugs as well as a duly served 'Alcontara Notice', the appropriate order for the court to make is to record an acquittal of the accused. To record a conviction in the given circumstances is utterly erroneous, as the evidence cannot warrant the application of the doctrine of blind wilfulness, and because the statutory presumption has clearly been diluted and rebutted. What more if such conviction is fixated upon the generalised view that 'the accused's case was just one of the mundane cases involving drug mules'.

CRIMINAL LAW: Dangerous Drugs Act 1952 - Section 39B(1)(a) - Trafficking in dangerous drugs - Appeal against conviction and sentence - Defence of innocent carrier - Whether bare denial or afterthought - Whether testimony of accused consistent with cautioned statement - Whether doctrine of wilful blindness applicable - Whether accused victim of deception - Whether accused rebutted presumption of knowledge - Whether evidence of accused raised reasonable doubts against prosecution's case - Whether conviction safe

CRIMINAL PROCEDURE: Appeal - Appeal against decision of Court of Appeal - Trafficking in dangerous drugs - High Court acquitted and discharged accused - Court of Appeal reversed findings of High Court - Defence of innocent carrier - Whether bare denial or afterthought - Whether testimony of accused consistent with cautioned statement - Whether High Court in better position to conclude on trustworthiness and reliability of evidence - Whether Court of Appeal considered totality of evidence - Whether reversal of High Court findings based on subjective opinion - Whether findings of High Court correct - Whether conviction recorded by Court of Appeal safe - Dangerous Drugs Act 1952, s. 39B(1)(a)


GREAT EASTERN LIFE ASSURANCE (MALAYSIA) BHD v. PRAKASA RAO SAMACHULU [2020] 5 CLJ 57
COURT OF APPEAL, PUTRAJAYA
AHMADI ASNAWI JCA; AB KARIM AB JALIL JCA; SURAYA OTHMAN JCA
[CIVIL APPEAL NO: W-04(NCC)(W)-212-05-2018]
26 JULY 2019

The issue of whether an insured mechanic plaintiff who has been incapacitated from going back to his former occupation on account of a neck injury suffered by him in an accident is suffering from a Total Permanent Disability (TPD), and therefore entitled to be paid the compensation in the policy, would depend on the definition of the term TPD as so employed by the policy purchased. A policy that defines TPD as a state of incapacity "to ever sufficiently do or engage in any work, occupation or profession to earn compensation, wages or profit" cannot be said to have envisaged or anticipated an incapacity to engage in any kind of work, but must instead be understood in the context of the actual business or occupation of the plaintiff. It follows that if the evidence suggests that the plaintiff could no longer work as a mechanic after the accident, he must necessarily be taken to have suffered from TPD in accordance with the provisions of the policy. The fact that he could still do supervisory or administrative work is of no consequence. It cannot vitiate or adversely affect his claims against the insurer.

INSURANCE: Policy - Total and permanent disability - Whether insured party's condition fell within policy definition of 'total and permanent disability' - Whether incapacity to do or engage in any work or occupation must relate to insured party's former or actual occupation - Whether insured party incapacitated from going back to former occupation on account of injury suffered - Whether insured party suffered from total and permanent disability in accordance with policies purchased by him - Pacific & Orient Insurance Co Sdn Bhd v. R Kathirvelu


APPEAL UPDATES  
  1. Lonpac Insurance Bhd v. Medan Damai Sdn Bhd [2019] 1 LNS 523 (CA) overruling in part the High Court case of Medan Damai Sdn Bhd v. Lonpac Insurance Bhd [Civil Suit No: WA-22C-14-01/2017]

  2. Hu Yanyu v. PP [2019] 1 LNS 577 (CA) affirming the High Court case of PP v. Hu Yanyu [Criminal Trial No: 45A-128-11/2014]

LATEST CASES

Legal Network Series

[2019] 1 LNS 117

JOSEPH WILLIAM GEORGE WINSON v. PP & ANOTHER CASE

In assessing the appropriate sentence, the Court should take into account the health condition of the accused. Severe injuries suffered by the accused which requires surgeries is a factor to be considered in mitigation of sentence.

CRIMINAL PROCEDURE: Appeal - Appeal against sentence - Appellate intervention - Trial judge imposed 12 years imprisonment for offence of gang robbery - Mitigation - Health condition of accused - Accused suffering from severe brain injury which required surgeries - Whether health condition of accused could be considered in assessing appropriate sentence - Whether sentence ought to be reduced

  • For the respondent - TPR How May Ling; Pejabat Penasihat Undang-Undang Negeri Perak
  • For the appellant 1 & 2 - Balakrishna Balaravi Pillai; M/s Krish Mano & Associates

[2019] 1 LNS 122

PP v. MUHAMMAD NOOR ASSUWAD MOHD ZAKI

1. The commission of several offences of armed robbery with a short interval between each of them should not be treated as one single transaction. A consecutive sentence should be considered when each of the charges were committed at different times and involving different victims.

2. The ingredients of robbery is not dependent on any injury sustained by a victim and thus the existence or otherwise of the injuries caused by the accused should not be a factor to be considered in imposing an appropriate sentence.

CRIMINAL PROCEDURE: Appeal - Appeal against sentence - Trial judge imposed 6 years imprisonment for 4 offences of armed robbery to run concurrently - Accused pleaded guilty at different stages of prosecution case - Separate offences unrelated to each other using same modus operandi committed by accused alone - Trial judge summarily ruled that all 4 offences qualified to be treated as one single transaction - Whether a concurrent or consecutive sentence was appropriate - Whether injuries sustained by victim was a relevant consideration in imposing sentence for robbery - Whether public interest demands severe punishment to be imposed irrespective of a plea of guilt

  • For the prosecution - Mahmoodah Abdul Latiff & Rizal Azani, Deputy Public Prosecutor; Pejabat Penasihat Undang-Undang Negeri Selangor
  • For the respondent - KA Ramu; M/s KA Ramu Vasanthi & Associates

[2019] 1 LNS 126

SUNWAY QUARRY INDUSTRIES SDN BHD v. SENG TAT ROADWORKS SDN BHD & ORS

Abstract: Mere denial of supply of goods and services which was unsupported by any evidence amounts to a shadowy defence and in such an instance, the defendant should be given conditional leave to defend subject to the sum claimed by the plaintiff being deposited with its solicitors as security pending disposal of the trial.

CIVIL PROCEDURE: Summary judgment - Goods sold and delivered - Claim for payment for goods sold and delivered and services supplied - Action against principal and guarantors - Defence denied goods and services delivered - Absence of protest against invoices and statements sent - Existence of settlement proposal from defendant - Whether defence raised was shadowy - Whether defendant should be granted conditional leave to defend

  • For the plaintiff - S Rampal; M/s Norendra & Yap
  • For the defendant - Jess Pang; M/s Alex Chang & Co

[2019] 1 LNS 188

ALI MAT & SATU LAGI lwn. HARUN MAT

Permohonan pecah bahagian tanah tidak boleh diputuskan secara afidavit dan saman pemula apabila wujud pertikaian fakta.

PROSEDUR SIVIL: Kaedah pemulaan - Saman pemula - Bantahan - Permohonan untuk perintah pecah bahagian tanah - Fakta-fakta dipertikaikan - Sama ada permohonan pecah bahagian dapat diputuskan secara afidavit dan saman pemula - Sama ada fakta-fakta sesuai diputuskan secara saman pemula - Sama ada tindakan yang dimulakan melalui saman pemula wajar dibatalkan

  • Bagi pihak perayu-perayu/plaintif-plaintif - Sharifah Fazidah Aidid Syed Hashim; T/n Sharifah Idah & Co
  • Bagi pihak responden/defendan - Abdul Hadi Ahmad; T/n Abdul Hadi Ahmad & Associates

[2019] 1 LNS 196

PP lwn. TANGGAVELU ANGUTHAN

Hukuman yang boleh memberi kesan kepada pencegahan dan memberi keutamaan kepada kepentingan awam wajar dijatuhkan terhadap pesalah-pesalah yang berkaitan dengan dadah berbahaya.

PROSEDUR JENAYAH: Penghukuman - Prinsip-prinsip - Faktor usia - Pesalah pertama - Kesalahan memiliki dadah berbahaya - Sama ada berat dadah adalah satu faktor yang perlu diambil kira apabila menjatuhkan hukuman - Sama ada keseriusan dan kepentingan awam perlu diambil kira - Sama ada tertuduh wajar dikenakan hukuman sebatan

  • Bagi pihak perayu - Baljit Singh & Mahendran Naidu; T/n Shukor, Baljit & Partners
  • Bagi pihak pendakwaan - Wan Shahidah Wan Omar, Timbalan Pendakwa Raya; Pejabat Penasihat Undang-Undang Negeri Selangor

CLJ 2020 Volume 5 (Part 1)

In a trial for drug trafficking under s. 39B(1) of the Dangerous Drugs Act 1952 (DDA), it is procedurally proper and lawful for the trial judge, after making a finding of presumed knowledge of the drugs against the accused under s. 37(d) of the DDA at the prosecution stage, to have again visited the issue on the element of knowledge at the defence stage. Such an approach, far from being misguided or perverse, is in harmony with s. 182A of the Criminal Procedure Code which calls for the court to consider all the evidence adduced at the close of the trial. This said, where the defence of innocent carrier premised upon the assertion that the accused was a victim of an internet romance scheme is proffered, and such defence was disclosed contemporaneously with the discovery of the drugs, and supported not only by an uncontroverted evidence of an expert witness but by an explanation as to how the accused came to possess the drugs as well as a duly served 'Alcontara Notice', the appropriate order for the court to make is to record an acquittal of the accused. To record a conviction in the given circumstances is utterly erroneous, as the evidence cannot warrant the application of the doctrine of blind wilfulness, and because the statutory presumption has clearly been diluted and rebutted. What more if such conviction is fixated upon the generalised view that 'the accused's case was just one of the mundane cases involving drug mules'.
Maria Elvira Pinto Exposto v. PP [2020] 5 CLJ 1 [FC]

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CRIMINAL LAW: Dangerous Drugs Act 1952 - Section 39B(1)(a) - Trafficking in dangerous drugs - Appeal against conviction and sentence - Defence of innocent carrier - Whether bare denial or afterthought - Whether testimony of accused consistent with cautioned statement - Whether doctrine of wilful blindness applicable - Whether accused victim of deception - Whether accused rebutted presumption of knowledge - Whether evidence of accused raised reasonable doubts against prosecution's case - Whether conviction safe

CRIMINAL PROCEDURE: Appeal - Appeal against decision of Court of Appeal - Trafficking in dangerous drugs - High Court acquitted and discharged accused - Court of Appeal reversed findings of High Court - Defence of innocent carrier - Whether bare denial or afterthought - Whether testimony of accused consistent with cautioned statement - Whether High Court in better position to conclude on trustworthiness and reliability of evidence - Whether Court of Appeal considered totality of evidence - Whether reversal of High Court findings based on subjective opinion - Whether findings of High Court correct - Whether conviction recorded by Court of Appeal safe - Dangerous Drugs Act 1952, s. 39B(1)(a)

 

TENGKU MAIMUN TUAN MAT CJ
AZAHAR MOHAMED CJ (MALAYA)
MOHD ZAWAWI SALLEH FCJ
IDRUS HARUN FCJ
NALLINI PATHMANATHAN FCJ

  • For the appellant - Muhammad Shafee Abdullah, Tania Scivetti, Wan Azman Aiman, Nurfazreen Hazrina & Rahmat Hazlan; M/s Scivetti & Assocs
  • For the respondent - Tetralina Ahmed Fauzi; DPP

Plaintiff's claim for damages arose from the allegation that there was in existence a contract between the first defendant and the plaintiff which was repudiated by the first defendant resulting in loss of profit to the plaintiff. The claim failed for lack of consensus ad idem.
Baldah Toyyibah (Prasarana) Kelantan Sdn Bhd v. Dae Hanguru Infra Sdn Bhd & Another Appeal [2020] 5 CLJ 27 [CA]

CONTRACT: Breach - Claim for damages - Parties to contract - Formation of turnkey contractor responsible for implementation of project - Whether there was concluded contract - Whether letter of intent and letter of acceptance carried turnkey contractor's name - Whether there was consensus ad idem - Whether contract valid and enforceable

 

 

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

  • For the appellant - Robert Lazar, Azlan Sulaiman & TT Toi; M/s Azmi & Assocs
  • For the respondent - Cyrus Das, S Selvarajah, R Ramanathan & James Lopez; M/s Fernandez & Selvarajah

The issue of whether an insured mechanic plaintiff who has been incapacitated from going back to his former occupation on account of a neck injury suffered by him in an accident is suffering from a Total Permanent Disability (TPD), and therefore entitled to be paid the compensation in the policy, would depend on the definition of the term TPD as so employed by the policy purchased. A policy that defines TPD as a state of incapacity "to ever sufficiently do or engage in any work, occupation or profession to earn compensation, wages or profit" cannot be said to have envisaged or anticipated an incapacity to engage in any kind of work, but must instead be understood in the context of the actual business or occupation of the plaintiff. It follows that if the evidence suggests that the plaintiff could no longer work as a mechanic after the accident, he must necessarily be taken to have suffered from TPD in accordance with the provisions of the policy. The fact that he could still do supervisory or administrative work is of no consequence. It cannot vitiate or adversely affect his claims against the insurer.
Great Eastern Life Assurance (Malaysia) Bhd v. Prakasa Rao Samachulu [2020] 5 CLJ 57 [CA]

INSURANCE: Policy - Total and permanent disability - Whether insured party's condition fell within policy definition of 'total and permanent disability' - Whether incapacity to do or engage in any work or occupation must relate to insured party's former or actual occupation - Whether insured party incapacitated from going back to former occupation on account of injury suffered - Whether insured party suffered from total and permanent disability in accordance with policies purchased by him - Pacific & Orient Insurance Co Sdn Bhd v. R Kathirvelu

 

 

AHMADI ASNAWI JCA
AB KARIM AB JALIL JCA
SURAYA OTHMAN JCA

  • For the appellant - Andrew Teh, Tan Chong Pei & Azura Abrar; M/s Wong Lu Peen & Tunku Alina
  • For the respondent - Venkateswara Kandasamy; M/s M Ravendran & Assocs

In Labour Law jurisprudence, an assault by a subordinate against his superior would invariably entail a summary dismissal of the former. On a related but differing note, where a domestic inquiry, or for that matter the Industrial Court or the High Court in their respective adjudicative and review jurisdictions, has held against the weight of evidence that a superior officer of a company was guilty of showing a bad example of managerial leadership by being involved in a scuffle with her subordinate, and that such misconduct had warranted her demotion, the officer has every right to declare the decision perverse, and treat herself as constructively dismissed and seek damages for wrongful dismissal.
Kirba Daisy John Das v. City-Link Express (M) Sdn Bhd & Anor [2020] 5 CLJ 67 [CA]

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LABOUR LAW: Employment - Constructive dismissal - Demotion - Applicant demoted due to allegations of scuffle with subordinate - Whether applicant conducted herself in unruly and disrespectful manner - Whether applicant proved to be victim of assault - Subordinate made defamatory remarks against applicant - Applicant took legal action against subordinate in his personal capacity - Whether valid exercise of applicant's private right - Whether charges against applicant established - Whether company had valid reasons to demote applicant - Whether applicant justified in treating herself as being constructively dismissed

LABOUR LAW: Industrial Court - Award - Whether order of certiorari ought to be issued to quash award - Employment - Constructive dismissal - Demotion - Applicant demoted due to allegations of scuffle with subordinate - Whether applicant conducted herself in unruly and disrespectful manner - Whether applicant proved to be victim of assault - Subordinate made defamatory remarks against applicant - Applicant took legal action against subordinate in his personal capacity - Whether valid exercise of applicant's private right - Whether charges against applicant established - Whether company had valid reasons to demote applicant - Whether applicant justified in treating herself as being constructively dismissed - Whether award handed down ought to be set aside

ADMINISTRATIVE LAW: Judicial review - Certiorari - Award from Industrial Court - Whether ought to be quashed - Employment - Constructive dismissal _Demotion - Applicant demoted due to allegations of scuffle with subordinate - Whether applicant conducted herself in unruly and disrespectful manner - Whether applicant proved to be victim of assault - Subordinate made defamatory remarks against applicant - Applicant took legal action against subordinate in his personal capacity - Whether valid exercise of applicant's private right - Whether charges against applicant established - Whether company had valid reasons to demote applicant - Whether applicant justified in treating herself as being constructively dismissed - Whether award handed down ought to be set aside

 

TENGKU MAIMUN TUAN MAT JCA
ABANG ISKANDAR JCA
ABDUL RAHMAN SEBLI JCA

  • For the appellant - Mohan Ramakrishnan; M/s Ramakrishnan & Assocs
  • For the 1st respondent - P Mithran; M/s Sothi & Ang

The law on limitation founded on contract or tort is trite in that it has a life span of 6 years from the date the cause of action accrues. However, in negligence actions, since damage is an essential part of the cause of action, the period of limitation runs from the date of the damage, and not from the act which causes the damage. It follows, therefore, that, where a plaintiff who has filed an action against the Executor of her late husband's estate was ordered by the court to deposit security for costs by 8 November 2008, and as a result of her not obliging with the time limit has had her action struck off by the court on 24 August 2009, it is perfectly within time for her to have filed, on 29 May 2015, an action for professional negligence and breach of retainer agreement against her solicitors arising from the said unsuccessful suit against the Executor. Although the act which causes the damage in the circumstances could have occurred on 8 November 2008, the date of damage only commenced when her action against the Executor was struck off by the court on 24 August 2009, thereby rendering her filing of the suit against the solicitors well within the 6 years' time limit.
Nyo Nyo Aye v. Kevin Sathiaseelan Ramakrishnan & Anor And Another Appeal [2020] 5 CLJ 82 [CA]

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TORT: Negligence - Professional negligence - Professional negligence of solicitors - Breach of retainer - Client's suit struck off following failure to deposit security for costs - Whether solicitors informed client that suit would be struck off for failure to deposit security for costs - Whether solicitors took necessary steps to file application for extension of time for client to comply with order - Whether client's action barred by limitation - Whether there were losses suffered by client when suit was struck off - Whether client established standard of care allegedly breached by solicitors

LIMITATION: Negligence - Cause of action - Accrual - Action by client against solicitors for professional negligence - Breach of retainer - Client's suit struck off following failure to deposit security for costs - Whether there were losses suffered by client when suit was struck off - When cause of action accrued - Whether limitation runs from date of damage or act which caused damage - Whether client's action well within six years' time limit - Whether client's action barred by limitation

LEGAL PROFESSION: Duty of care - Negligence - Client's suit struck off following failure to deposit security for costs - Whether solicitors informed client that suit would be struck off for failure to deposit security for costs - Whether there was breach of duty of solicitors to inform and advise client on prospect of success of case - Whether solicitors took necessary steps to file application for extension of time for client to comply with order - Whether client established standard of care allegedly breached by solicitors

IDRUS HARUN JCA
SURAYA OTHMAN JCA
STEPHEN CHUNG JCA

  • For the appellant - T Gunaseelan, Abd Razak Hashim & Ahmad Muslim Rozlan; M/s Sri Ling & Assocs
  • For the respondents - Tan Keng Teck & Janet Tang Yii Chi; M/s Lim Kian Leong & Co

In a criminal trial for trafficking in dangerous drugs, where the evidence showed that the accused was handed over a box containing the offensive drugs by a police witness acting as a representative of a courier service, the fact that the accused had momentary custody or control of the box before he was arrested cannot go to show that he had possession and therefore knowledge of the contents of the box. Such a scenario cannot also be indicative of the accused having access or close proximity to the drugs. Likewise, the fact or the evidence that the accused was looking stunned or shocked upon the police disclosing their true identity prior to the arrest, while constituting an admissible piece of evidence under s. 8 of the Evidence Act 1950, cannot necessarily lead to the irresistible inference that the accused had knowledge of the drugs. It is also clear that, faced with circumstances which admit of several inferences from the proved facts, it is not safe for the court to convict the accused of the charge.
Simon Savarimuthu Thevarajah v. PP [2020] 5 CLJ 105 [CA]

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CRIMINAL LAW: Dangerous Drugs Act 1952 - Section 39B(1)(a) - Trafficking - Accused convicted for offence of trafficking in dangerous drugs and sentenced to death - Whether elements of trafficking fulfilled - Whether defence of innocent carrier probable - Whether conviction and sentence safe

CRIMINAL PROCEDURE: Appeal - Appeal against conviction and sentence - Accused convicted for offence of trafficking in dangerous drugs and sentenced to death - Drugs found in box sent by courier service - Whether accused had custody and control of box - Whether accused had knowledge and possession of drugs found in box - Whether elements of trafficking proved - Whether there were several competing inferences - Whether there was inference in favour of accused - Whether accused's defence probable - Whether bare denial - Whether conviction and sentence safe - Dangerous Drugs Act 1952, s. 39B(1)(a)

EVIDENCE: Adverse inference - Non-calling of material witness - Accused charged for offence of trafficking in dangerous drugs - Drugs found in box sent by courier service - Information on drugs received from manager of courier service - Whether informer material witness to prosecution's case - Whether non-calling of informer created gap in prosecution's case - Whether failure to call informer detrimental to prosecution's case - Whether adverse inference ought to be drawn against prosecution - Evidence Act 1950, s. 114(g)

UMI KALTHUM ABDUL MAJID JCA
HARMINDAR SINGH DHALIWAL JCA
STEPHEN CHUNG JCA

  • For the appellant - Gabriel Susayan & Shalvin Kanvinchevan; M/s Gerard Lazarus & Assocs
  • For the respondent - Ku Hayati Ku Haron; DPP

The Registrar of Societies in registering Persatuan Guaman Malaysia ('PGM') / Law Society of Malaysia ('LSM') under s. 7(1) of the Societies Act 1966 ('Act 335') had not acted ultra vires ss. 2A and 7(3) of Act 335; the incorporation thereof have no resemblance to Bar Malaysia which have wider statutory objectives.
Bar Malaysia v. Ketua Pengarah Jabatan Pendaftaran Pertubuhan Malaysia & Anor [2020] 5 CLJ 118 [HC]

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ADMINISTRATIVE LAW: Remedies - Certiorari - Registration of Law Society of Malaysia - Registrar of Societies ('ROS') rejected Bar Malaysia's application to revoke registration - Application for judicial review by Bar Malaysia - Issues of illegality and irrationality - Whether established - Whether name and/or activities of society breached s. 7(3) of Societies Act 1966 - Whether name of society misleading or resembled name of other societies - Whether purpose of society misled members of public and members of Bar Malaysia - Whether decision of ROS rational

UNINCORPORATED ASSOCIATIONS: Societies - Judicial review - Registration of Law Society of Malaysia - Registrar of Societies ('ROS') rejected Bar Malaysia's application to revoke registration - Application for judicial review of ROS's decision - Whether name and/or activities of society breached s. 7(3) of Societies Act 1966 - Whether name of society misleading or resembled name of other societies - Whether purpose of society misled members of public and members of Bar Malaysia - Whether decision of ROS rational - Whether court could substitute findings of ROS

 

AZIZAH NAWAWI J

  • For the appellant - Asim Ng; M/s Fahri & Co
  • For the 1st respondent - Mazlifah Ayob; SFC
  • For the 2nd respondent - Indera Abdul Aziz A Rahman, Ashraf Appoo & Nurul Azua Abu Yazid; M/s Nik Saghir & Ismail

A statutory demand could be served by way of a registered post and there is no necessity for it to be physically left or handed at the intended recipient's registered office by personal service. The service by way of a registered post is considered good service and has the effect as if the statutory demand was left and handed over at the registered office of the intended recipient.
Tee Yam Holdings Sdn Bhd v. Shanghai Capital Sdn Bhd; Tenaga Nasional Bhd (Petitioner) [2020] 5 CLJ 130 [HC]

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COMPANY LAW: Winding-up - Petition - Application to set aside and/or terminate winding-up order - Petitioner obtained judgment in default against company for non-payment of electricity bills - Petitioner issued statutory demand or notice for payment of judgment sum - Petitioner filed for winding-up of company following company's non-response to notice - Whether there was proper service of notice demanding payment of judgment sum - Whether notice valid - Whether winding-up order could stand - Whether winding-up order ought to be terminated and/or set aside - Companies Act 2016, s. 493(1), (2)(c) - Companies Act 1965, s. 218

CIVIL PROCEDURE: Service - Service of statutory demand or notice - Petitioner obtained judgment in default against company for non-payment of electricity bills - Petitioner issued statutory demand or notice for payment of judgment sum - Petitioner filed for winding-up of company following company's non-response to notice - Whether there was proper service of notice demanding payment of judgment sum - Notice not handed or left at registered office of company - Whether service of notice made through registered post good service - Whether notice valid - Whether winding-up order could stand - Companies Act 2016, s. 493(1), (2)(c) - Companies Act 1965, s. 218

 

ABU BAKAR JAIS J

  • For the respondent & applicant - Chew Chang Min, Mary Ann Oii, Jenny Fong, Aqilah Rossidi & Gan Jer Nynn
  • For the petitioner - Carole Ngu; M/s OS Kim & Assocs
  • For the official receiver - Subri Hashim; M/s LY Lu & Co

ARTICLES

CLJ Article(s)

  1. THE MEDIATION ACT 2012: A TOOTHLESS TIGER OR A SLEEPING GIANT? [Read excerpt]
    by EDWARD KURUVILLA* [2020] 5 CLJ(A) i

  2. [2020] 5 CLJ(A) i
    logo
    MALAYSIA

    THE MEDIATION ACT 2012: A TOOTHLESS TIGER OR A SLEEPING GIANT?

    by
    EDWARD KURUVILLA*

    Abstract

    Although - in theory - the advantages of mediation as an alternative method for dispute resolution are beyond doubt, mediation remains an unattractive option - in practice - to disputants in Malaysia, owing largely to the lethargic state of the Mediation Act 2012. Since its introduction almost eight years ago, there has been very little activity surrounding the Act and not a single amendment has been made to it since.

    With mediation becoming an increasingly popular choice for dispute resolution globally, the question needs to be asked; whether or not the Act in its present form does more to promote, or to stifle, the use of mediation in Malaysia. This paper shall seek to: (i) highlight select obvious shortcomings of the Act in its present form; (ii) compare and contrast the Act against other legislations within and beyond the jurisdiction; and (iii) propose amendments to overcome the problems in the identified areas.

    . . .

    * Advocate & Solicitor of the High Court of Malaya


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LNS Article(s)

  1. EXCLUDING LIABILITY FOR MISDELIVERY AND NON-DELIVERY IN BILLS OF LADING: UNDER LAWS OF MALAYSIA, SINGAPORE AND ENGLAND & WALES* [Read excerpt]
    by ARUN KASI** [2020] 1 LNS(A) lvi

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

    EXCLUDING LIABILITY FOR MISDELIVERY AND NON-DELIVERY IN BILLS OF LADING:
    UNDER LAWS OF MALAYSIA, SINGAPORE AND ENGLAND & WALES*


    by
    ARUN KASI**

    ABSTRACT

    The end obligation of a sea carrier is to deliver the cargo; ordinarily, at the destination port upon presentation of the bill of lading, a transferable contract. Clauses in the bill excluding liability for mis-delivery or non-delivery go to the core of the contract of carriage, as that will negative the end obligation and render the consideration given by the carrier illusory. They will have a great impact on international cargo trade, whereby goods are usually sold and purchased, not by physical transfer of the goods but by transfer of the bill of lading representing the goods while they are in transit. The Hague and Hague-Visby Rules which set the mandatory minimum threshold obligations of the carrier, that cannot be contractually ousted, do not include the obligation to deliver, hence the liberty to contract in respect of delivery obligation in the hands of the parties.

    . . .

    * © Arun Kasi, 2020.

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


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  3. THE NATURE OF FLOATING CHARGES: AN ENGLISH PERSPECTIVE [Read excerpt]
    by Tan Wai Kit* [2020] 1 LNS(A) lvii

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

    THE NATURE OF FLOATING CHARGES: AN ENGLISH PERSPECTIVE

    by
    Tan Wai Kit*

    Introduction

    The floating charge was created by equity to meet with the commercial expansion of 19th century Britain and the increasing companies' needs for capital.[1] Among other factors, the Holroyd case (further endorsed by Tailby)[2] allowed a charge to be created over a company's present and future-acquired assets and provided ground for the creation of a floating charge.[3] Despite chargors being allowed to secure debt finance with their whole undertaking,[4] the harm of paralysing a chargor's business and administrative burden on both parties of the loan remain the main concern as the lender's consent is required for every disposal of charged assets.[5] Consequently, the English court created a form of security where its attachment is postponed until crystallisation[6] and gives chargors the freedom to deal with their charged assets in the ordinary course of business.[7]

    . . .

    *LLM (Bristol); LLB (MMU).


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  5. COPYRIGHT PROTECTION IN NIGERIA: TACKLING THE CONUNDRUM OF MONSTROUS CANKER-WORM OF PIRACY [Read excerpt]
    by Dr. A. O. Oyebanji* Dr. Joseph I. Aremo** [2020] 1 LNS(A) lviii

  6. [2020] 1 LNS(A) lviii
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    NIGERIA

    COPYRIGHT PROTECTION IN NIGERIA:
    TACKLING THE CONUNDRUM OF MONSTROUS CANKER-WORM OF PIRACY


    by
    Dr. A. O. Oyebanji*
    Dr. Joseph I. Aremo**

    Abstract

    It is apt to state that piracy is a global problem which confronts intellectual property protection. While the developed nations have kept this cankerworm in check to a certain extent, African nations, particularly Nigeria, have not tackled the menace as expected. Although, the Copyright Act, 2004, purports to protect intellectual property, including digital innovations, the country has; however, remained one of the largest piracy markets in the world. Therefore, this paper intends to examine the Nigerian Copyright Act with a view to identifying the inherent inadequacies in the law as the study found that there exists the technological lacunae to check the rising spate of pirates' activities in the countries.

    . . .

    * Ag. Head, Department of Public & International Law, College of Law, Joseph Ayo Babalola University, Ikeji – Arakeji, Osun State, Nigeria. banjiaderemi@gmail.com +2348139470378.

    ** Former Commissioner, Ondo State Law Commission and Currently, Lecturer, College of Law, Joseph Ayo Babalola University, Ikeji – Arakeji, Osun State, Nigeria aremsonjoe@gmail.com +2348038411128.


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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 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) 168/2020 Control Of Supplies (Controlled Articles) (No. 4) Order 2020 21 May 2020 22 May 2020 to 3 June 2020 ACT 122
PU(A) 167/2020 Price Control And Anti-Profiteering (Price Marking Of Price-Controlled Goods) (No. 4) Order 2020 21 May 2020 22 May 2020 to 3 June 2020 ACT 723
PU(A) 166/2020 Price Control And Anti-Profiteering (Determination Of Maximum Price) (No. 6) Order 2020 21 May 2020 22 May 2020 to 3 June 2020 ACT 723
PU(A) 165/2020 Stamp Duty (Exemption) (No. 2) Order 2020 21 May 2020 1 March 2020 ACT 378
PU(A) 164/2020 Private Higher Educational Institutions (Exemption To Kolej Masa) Order 2020 19 May 2020 20 May 2020 ACT 555

PU(B)

Number Title Date of Publication In force from Principal/ Amending Act No
PU(B) 234/2020 Notification Of Application For Registration Of New Plant Variety And Grant Of Breeder's Right - Zanmugabbana Yellow 21 May 2020 22 May 2020 ACT 634
PU(B) 233/2020 Notification Of Application For Registration Of New Plant Variety And Grant Of Breeder's Right - Delibaltica Pink 21 May 2020 22 May 2020 ACT 634
PU(B) 232/2020 Notification Of Application For Registration Of New Plant Variety And Grant Of Breeder's Right - Deliestrella 21 May 2020 22 May 2020 ACT 634
PU(B) 231/2020 Notification Of Application For Registration Of New Plant Variety And Grant Of Breeder's Right - Delisweta 21 May 2020 22 May 2020 ACT 634
PU(B) 230/2020 Notification Of Application For Registration Of New Plant Variety And Grant Of Breeder's Right - Dekoptimist 21 May 2020 22 May 2020 ACT 634

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