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Issue #33/2020
06 August 2020

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New This Week

CASE(S) OF THE WEEK

CHIN JHIN THIEN & ANOR v. CHIN HUAT YEAN & ANOR [2020] 7 CLJ 137
FEDERAL COURT, PUTRAJAYA
MOHD ZAWAWI SALLEH FCJ; IDRUS HARUN FCJ; NALLINI PATHMANATHAN FCJ;
ZALEHA YUSOF FCJ; HASNAH MOHAMMED HASHIM FCJ
[CIVIL APPEAL NO: 02(f)-29-04-2019(P)]
07 JULY 2020
[2020] CLJ (JT4)

The doctrine of secret trust which enables a testator to direct vide his will the disposition of his property upon his death to a 'legatee' to hold it on trust for an unnamed or a secret beneficiary is statutorily applicable in Malaysia, bearing in mind the purport of s. 3(1) of the Civil Law Act 1956, the Wills Act 1959 and the fact that the concept has never been explicitly abrogated by any of our statutes or Acts of Parliament. The doctrine does not offend public policy and is consistent with the fundamental human right of privacy, and the Wills Act, it ought to be noted, protects the testamentary freedom of testators. Another justification for its enforcement is that it is made outside and independently of the will, having arisen from the independent obligation as so accepted by the trustee. It follows therefore that if the testator is of sound mind, memory and understanding, and has not been shown to have been suffering from any testamentary incapacity, such as the testator in this case, it would not be right to deny him his agreement with his trustee and with it his right and desire to make dispositions to his sons through his marriage to his second wife, and nor would it be realistic for the court to uphold a strict reading of the statutes so as to allow the trust to fail.

SUCCESSION: Probate - Will - Validity - Allegation that will made was secret trust - Whether testator had testamentary capacity to make will before death - Whether requirements for formality of valid will satisfied - Whether will a secret trust - Whether will contradictory to Wills Act 1959 and/or against public policy - Whether will valid and ought to be given effect

TRUSTS: Secret trust - Will - Allegation that will made was secret trust - Whether requirements for formality of valid will satisfied - Whether will a secret trust - Whether concept of secret trust applicable to Malaysia - Whether secret trust abrogated in Malaysia - Whether secret trust applicable in cases involving issue of testamentary capacity of testator - Whether secret trust contradictory to Wills Act 1959 and/or against public policy


YUE CHI KIN v. PP [2020] 7 CLJ 224
HIGH COURT MALAYA, KUALA LUMPUR
MOHD NAZLAN GHAZALI J
[CRIMINAL APPLICATION NO: WA-42(S)-137-12-2015]
20 MAY 2019

The prosecution, in preferring a charge against an accused in both the English language and Bahasa Malaysia must ensure that the two versions correspond and tally with each other and are not vitiated by any inconsistency or discrepancy. Where therefore an accused has been charged with an offence under s. 122B(b)(bb) of the Securities Industry Act 1983 read with s. 122(c) thereof for abetting a company who had knowingly permitted the making of a misleading statement to the Stock Exchange, the fact that the English version of the charge carries the word "permitted" but no translation thereof has been made to its Bahasa Malaysia version may bear very adversely on the legality of the charge and the prosecution. The absence of the corresponding translation could mean that in so far as the Bahasa Malaysia version of the charge is concerned, it was the company itself that was alleged to have made the misleading statement, thereby causing ambiguity, and prejudice and confusion to the accused. It needs little reminder that such a failure to properly frame the ingredients of the charge may be fatal and not curable under s. 156 of the Criminal Procedure Code, and may render the conviction of the accused therein unsustainable in law.

CRIMINAL PROCEDURE: Charge - Defective charge - Bahasa Malaysia ('BM') version of charge - Whether pre-requisite to prosecution - Whether BM version substantially different from statute - Whether curable - Whether fatal to conviction - Criminal Procedure Code, s. 156 - Securities Industry Act 1983, s. 122B

CRIMINAL PROCEDURE: Appeal - Appeal against conviction and sentence - Charge under s. 122B of Securities Industry Act 1983 for abetment - Defective charge - Whether rendered offence unknown under law - Absence of requisite mens rea of principle offence - Whether charge of abetment sustainable - Whether there was sufficient judicial assessment of fact and evidence by trial judge - Whether reference to irrelevant legislation led to substantial miscarriage of justice


THE UNITED STATES OF AMERICA v. MENTERI SUMBER MANUSIA MALAYSIA & ORS [2020] 7 CLJ 210
HIGH COURT MALAYA, KUALA LUMPUR
NORDIN HASSAN J
[JUDICIAL REVIEW NO: WA-25-342-07-2019]
08 JANUARY 2020

The Industrial Court is not seised with jurisdiction to adjudicate on a representation made by an employee of a foreign embassy if the nature of his employment with the embassy is such that it forms an integral part of the sovereign activity of the foreign State and its embassy. A security guard employed by the United States Embassy, for instance, is caught under this doctrine of sovereign immunity, and cannot therefore have his day in the Industrial Court to vent his dissatisfaction after being dismissed from his employment by the embassy.

ADMINISTRATIVE LAW: Judicial review - Exercise of discretion - Minister referred employee's representation to Industrial Court - Employee dismissed from employment as guard at United States Embassy - Whether embassy immune from jurisdiction of Industrial Court - Whether Minister has wide discretionary power under s. 20(3) of the Industrial Relations Act 1967 to resolve issue of sovereign jurisdiction - Whether representation frivolous and vexatious - Industrial Relations Act 1967, s. 20

LABOUR LAW: Jurisdiction - Industrial Court - Employee dismissed from employment as guard at United States Embassy - Minister referred employee's representation to Industrial Court - Whether embassy immune from jurisdiction of Industrial Court - Test - Whether act done by state in exercise of sovereign authority or act of private nature - Whether employee was performing governmental and sovereign functions - Whether Minister erred in referring representation to Industrial Court - Industrial Relations Act 1967, s. 20


APPEAL UPDATES  
  1. Ogugua Chibuzo Marcellus v. PP [2019] 1 LNS 574 (CA) affirming the High Court case of PP lwn. Ogugua Chibuzo Marcellus & Yang Lain [2017] 1 LNS 1297

  2. Pendakwa Raya lwn. Mohd Zainal Shamsudin [2019] 1 LNS 1553 (CA) mengesahkan kes Mahkamah Tinggi Pendakwa Raya lwn. Mohd Zainal Shamsudin [Perbicaraan Jenayah No: TA-45SOM-1-04/2018]

LATEST CASES

Legal Network Series

[2018] 1 LNS 2

MUNIANDY S SUBRAMANIAM v. PP

The accused had actual or mens rea possession of drugs found in a condominium although the accused was arrested together with other individuals present in the said condominium during the raid. The lack of finger print or DNA evidence would not impact the finding that the accused had sole custody and control of the drugs in the condominium occupied by the accused.

CRIMINAL LAW: Dangerous drugs - Trafficking - Mens rea possession - Drugs were found during raid in a condominium occupied by accused - Two other individuals present during raid - Keys to the condominium found in possession of accused - Whether accused had sole custody and control of drugs - Whether accused had actual possession of drugs - Whether lack of finger print or DNA evidence would affect findings that accused had sole custody and control of drugs

  • For the appellant - Rajit Singh; M/s Rajit Gill & Co
  • For the respondent - Aslinda Ahad; DPP

[2018] 1 LNS 1080

MORTEZA FEIZI SATAR v. PP & ANOTHER APPEAL

The doctrine of wilful blindness should be considered before deciding on the defence of innocent carrier without knowledge. Defence of innocent carrier is not available as the accused had deliberately refused to know the true and actual contents of girdles given by a total stranger to be worn by him.

CRIMINAL PROCEDURE: Appeal - Appeal against acquittal and discharge - Appeal by prosecution - Offence of trafficking dangerous drugs - Trial judge accepted defence of innocent carrier - Trial judge failed to consider doctrine of wilful blindness before deciding that accused was an innocent carrier without knowledge - Whether trial judge fell into error - Whether trial judge misdirected himself in doubting proof of elements of possession and trafficking at defence stage

CRIMINAL PROCEDURE: Defence - Innocent career - Wilful blindness - Drugs found in abdominal girdle worn by accused - Accused alleged girdle given by a total stranger whom he met at the airport - Accused deliberately did not want to know true and actual contents of girdles - Whether accused had ample time and opportunity to check and examine girdle - Whether a reasonable person would have been suspicious regarding contents of girdle - Whether accused was guilty of wilful blindness

EVIDENCE: Conduct - Conduct of accused - Offence of trafficking of dangerous drugs - Accused looked frightened during inspection - Accused deliberately refused to make further inquiries in order to avoid confirming actual situation - Whether conduct of accused led to conclusion that accused knew of existence of drugs - Evidence act 1950, s. 8

  • For the appellant - Zaki Asyraf Zubir & Jasmee Hameeza Jaafar; Deputy Public Prosecutors, Attorney General's Chambers
  • For the respondent - Azamuddin Abd Aziz; M/s Azamuddin & Co

[2018] 1 LNS 1083

DR MILTON LUM SIEW WAH v. MALAYSIAN MEDICAL COUNCIL & ANOR; DR LOURDES DAVA RAJ CURUZ DURAI RAJ (PROPOSED INTERVENER)

An application to intervene in proceedings before the Court of Appeal must be made with reasonable promptitude before an order of Court is perfected and the Court is functus officio. Hence, an application to intervene in a proceeding pursuant to O. 15 r. 6(2)(b)(ii) of the Rules of Court 2012 should be filed when the Court of Appeal proceeding is still pending.

CIVIL PROCEDURE: Parties - Intervention - Application to intervene in proceedings at Court of Appeal stage - Proposed intervener intending to set aside order of Court of Appeal - Application filed two years after appeal was disposed of - Whether an application to intervene could be filed after appeal proceedings have ended - Whether application was made with reasonable promptitude - Whether applicant can only be added as a party before order of court is perfected and whilst court was not functus officio - Whether matter ought to be further relitigated

WORDS AND PHRASES: 'at any stage of proceedings' - Meaning of - Rules of Court 2012, O. 15 r. 6(2)(b)(ii) - Whether means a proceeding pending - Whether application to intervene should be filed when proceeding pending in Court

  • For the appellant - Anit Kaur Randhawa; M/s Asbir Hira Singh & Co
  • For the respondent - Gurdev Singh Bal; M/s Irmohizam Gurdev & Co
  • For the proposed intervener - Lambert Rasa-Ratnam, G Vijay Kumar & Chan Mun Yew; M/s Lee Hishamuddin Allen & Gledhill

[2019] 1 LNS 195

KALEETHUKHAN OTHMAN GANY & YANG LAIN lwn. INCREDIBLE FORCE SDN BHD & YANG LAIN

1. Representasi salah atau representasi frod jaminan "profit sharing" melalui skim pembelian ikan Arowana adalah tidak dibuktikan apabila pembeli-pembeli telah berdiam diri untuk tempoh yang lama setelah tidak memperolehi pulangan keuntungan.

2. Tadbir pemerbadanan syarikat tidak wajar disingkap apabila tidak ada sebarang keterangan yang membuktikan pengarah-pengarah telah mempergunakan syarikat untuk manfaat secara peribadi.

KONTRAK: Representasi salah - Frod - Dorongan untuk memasuki skim pembelian ikan Arowana atas representasi jaminan "profit sharing" - Pembeli-pembeli tidak memperolehi pulangan keuntungan dan berdiam diri selama 3 tahun - Pembeli-pembeli pernah mendapat habuan daripada penjualan anak-anak ikan Arowana - Sama ada wujud sebarang representasi salah dan representasi frod dilakukan oleh defendan ke atas plaintif-plaintif

UNDANG-UNDANG SYARIKAT: Entiti perundangan yang berasingan - Penyingkapan tabir pemerbadanan - Tuntutan terhadap pengarah-pengarah Syarikat - Kausa tindakan berasaskan representasi salah dan frod - Sama ada pengarah-pengarah telah membuat representasi salah secara peribadi - Sama ada wujud fakta yang mewajarkan tabir pemerbadanan disingkap - Sama ada pengarah-pengarah telah mempergunakan Syarikat untuk mendapat manfaat secara salah

  • Bagi pihak plaintif-plaintif - Faizul Hilmy, Ahmad Yani Aminuddin, Nurul Jannah Mohd Joaini & Moer Mohd Fadil Meor Sharifudin; T/n Mior & Associates
  • Bagi pihak defendan pertama - Tidak Diwakili
  • Bagi pihak defendan kedua & ketiga - Francis Goh Yun Hung; T/n Francis Goh & Co

[2019] 1 LNS 330

VIJAYAN RAMAN & SATU LAGI lwn. PP

Apabila tindakan dan cara tertuduh menyebabkan kematian si mati adalah serius, maka satu hukuman yang berbentuk pengajaran dan pencegahan harus diberikan.

PROSEDUR JENAYAH: Rayuan - Rayuan terhadap hukuman - Hukuman penjara 20 tahun bagi kesalahan di bawah s. 304(a) Kanun Keseksaan - Tindakan tertuduh telah menyebabkan kematian si mati dengan cara yang serius - Sama ada satu hukuman yang berbentuk pengajaran dan pencegahan harus diberi bagi menghalang tertuduh daripada mengulangi kesalahannya - Sama ada hukuman yang dijatuhkan adalah terlampau tinggi

  • Bagi pihak perayu-perayu - V Rajehgopal; T/n V Rajehgopal
  • Bagi pihak responden - Mohd Fairuz Johari, Timbalan Pendakwa Raya; Pejabat Penasihat Undang-Undang Negeri Selangor

CLJ 2020 Volume 7 (Part 2)

The doctrine of secret trust which enables a testator to direct vide his will the disposition of his property upon his death to a 'legatee' to hold it on trust for an unnamed or a secret beneficiary is statutorily applicable in Malaysia, bearing in mind the purport of s. 3(1) of the Civil Law Act 1956, the Wills Act 1959 and the fact that the concept has never been explicitly abrogated by any of our statutes or Acts of Parliament. The doctrine does not offend public policy and is consistent with the fundamental human right of privacy, and the Wills Act, it ought to be noted, protects the testamentary freedom of testators. Another justification for its enforcement is that it is made outside and independently of the will, having arisen from the independent obligation as so accepted by the trustee. It follows therefore that if the testator is of sound mind, memory and understanding, and has not been shown to have been suffering from any testamentary incapacity, such as the testator in this case, it would not be right to deny him his agreement with his trustee and with it his right and desire to make dispositions to his sons through his marriage to his second wife, and nor would it be realistic for the court to uphold a strict reading of the statutes so as to allow the trust to fail.
Chin Jhin Thien & Anor v. Chin Huat Yean & Anor [2020] 7 CLJ 137 [FC]

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SUCCESSION: Probate - Will - Validity - Allegation that will made was secret trust - Whether testator had testamentary capacity to make will before death - Whether requirements for formality of valid will satisfied - Whether will a secret trust - Whether will contradictory to Wills Act 1959 and/or against public policy - Whether will valid and ought to be given effect

TRUSTS: Secret trust - Will - Allegation that will made was secret trust - Whether requirements for formality of valid will satisfied - Whether will a secret trust - Whether concept of secret trust applicable to Malaysia - Whether secret trust abrogated in Malaysia - Whether secret trust applicable in cases involving issue of testamentary capacity of testator - Whether secret trust contradictory to Wills Act 1959 and/or against public policy

 

MOHD ZAWAWI SALLEH FCJ
IDRUS HARUN FCJ
NALLINI PATHMANATHAN FCJ
ZALEHA YUSOF FCJ
HASNAH MOHAMMED HASHIM FCJ

  • For the appellants - John Khoo, Jason Ong & Navaneetha Krishnan; M/s Ong & Assocs
  • For the respondents - Justin Voon Thiam Yu, Lee Chooi Peng & Lin Pei Sin; M/s Justin Voon Chooi & Wing

The application to set aside leave as so granted by the Federal Court to the Attorney General to commence committal proceedings against the respondents news portal for publishing statements contemptuous of the Judiciary cannot succeed and ought to be dismissed, as the respondents had clearly facilitated the publication of the impugned statements and are presumed to have published the same; evidently, a prima facie case against the respondents had been made out by the Attorney General, thereby justifying the grant of leave.
Peguam Negara Malaysia v. Mkini Dotcom Sdn Bhd & Anor [2020] 7 CLJ 173 [FC]

CIVIL PROCEDURE: Contempt of court - Committal proceedings - Application to set aside leave to commence committal proceedings - Proceedings related to comments implicating Judiciary as a whole - Whether prima facie case made out - Whether presumption under s. 114A of Evidence Act 1950 rebutted - Whether non-compliance with O. 52 r. 2B of Rules of Court 2012 fatal - Whether application to set aside ought to be allowed

 

 

ROHANA YUSUF PCA
AZAHAR MOHAMED CJ (MALAYA)
ABANG ISKANDAR CJ (SABAH AND SARAWAK)
MOHD ZAWAWI SALLEH FCJ
NALLINI PATHMANATHAN FCJ
VERNON ONG LAM KIAT FCJ
ABDUL RAHMAN SEBLI FCJ

  • For the applicant - Suzana Atan & Narkunavathy Sundareson; SFCs
  • For the respondents - Malik Imtiaz Sarwar, Surendra Ananth & Khoo Suk Chyi; M/s Surendra Ananth

Watching Brief :

  • For the Bar Council - Joy Wilson Appukuttan; M/s KH Lim & Co
  • For the Centre for Independent Journalism and Gerakan Media - Yusmadi Yusoff; M/s Fahda Nur & Yusmadi
  • For the International Federation of Journalists (IFJ) and National Journalist Union of Malaysia (NJUM) - New Sin Yew; M/s AmerBON

A payment obligation arising out of a negotiable instrument such as a Letter of Credit (LC) should be strictly honoured by the bank issuing the instrument. This said, where the supporting documents adduced by a negotiating bank to support a claim for reimbursement on the LC are non-compliant, or not in conformity with the requirements of such LC, the issuing bank may avoid liability therefor, or be altogether absolved from honouring the obligation as such inchoate documents cannot be good for negotiation and cannot therefore assist the claimant bank; more so, when its conduct is one of a sham and detached from the principles of accountability, transparency and good governance.
Punjab National Bank v. Malayan Banking Bhd [2020] 7 CLJ 177 [CA]

BANKING: Banks and banking business - Letter of credit ('LC') - Claim by issuing bank for reimbursement of money paid to beneficiary - Liability - Terms of LC - Whether required strict compliance - Whether terms of LC complied with - Whether money disbursed before maturity date of LC - Whether loan transaction - Whether claim allowed

 

 

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

  • For the appellant - T Gunaseelan & Keshvinjeet Singh; M/s Gunaseelan & Assocs
  • For the respondent - Mong Chung Seng & Chia Oh Seng; M/s Lee Hishammuddin Allen & Gledhill

An interim injunction order may be issued against the biological father of a child who had given up his child for adoption but has reneged on his said legal pledge. The general effect of an adoption order is that it destroys the legal bond between the infant and its natural parents and puts him in precisely the same position as a natural child of the adoptive parents; the rights and obligations of the natural parents or guardians of the adopted child, in other words, just fade away and are extinguished upon the issuance of such an adoption order.
ABC & Anor v. JKL [2020] 7 CLJ 190 [HC]

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CIVIL PROCEDURE: Injunction - Interim orders - Application for interim orders pending final disposal of writ - Applicants adopted child - Third party claiming to be putative father of child launched defamatory campaign against applicants - Allegations that third party's behaviour caused applicants serious alarm, fear and distress - Whether interim injunction ought to be granted - Specific Relief Act 1950, Part III - Courts of Judicature Act 1964, ss. 15 and 24(d) - Rules of Court 2012, O. 29 r. 1

FAMILY LAW: Adoption - Child born out of wedlock - Claim by third party that he was putative father of child - Whether child's relationship with third party recognised by law - Whether rights and obligations of natural parents extinguished upon adoption of child - Adoption Act 1952, s. 9(1)

 

HAYATUL AKMAL ABDUL AZIZ J

  • For the plaintiffs - Honey Tan Lay Ean & Tay Kit Hoo; M/s Tan Law Practice
  • For the defendant - Choo Dee Wei & Nur Shainaz Azizor Rahman; M/s Dee, Netto, Fatimah & Ng

The Industrial Court is not seised with jurisdiction to adjudicate on a representation made by an employee of a foreign embassy if the nature of his employment with the embassy is such that it forms an integral part of the sovereign activity of the foreign State and its embassy. A security guard employed by the United States Embassy, for instance, is caught under this doctrine of sovereign immunity, and cannot therefore have his day in the Industrial Court to vent his dissatisfaction after being dismissed from his employment by the embassy.
The United States Of America v. Menteri Sumber Manusia Malaysia & Ors [2020] 7 CLJ 210 [HC]

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ADMINISTRATIVE LAW: Judicial review - Exercise of discretion - Minister referred employee's representation to Industrial Court - Employee dismissed from employment as guard at United States Embassy - Whether embassy immune from jurisdiction of Industrial Court - Whether Minister has wide discretionary power under s. 20(3) of the Industrial Relations Act 1967 to resolve issue of sovereign jurisdiction - Whether representation frivolous and vexatious - Industrial Relations Act 1967, s. 20

LABOUR LAW: Jurisdiction - Industrial Court - Employee dismissed from employment as guard at United States Embassy - Minister referred employee's representation to Industrial Court - Whether embassy immune from jurisdiction of Industrial Court - Test - Whether act done by state in exercise of sovereign authority or act of private nature - Whether employee was performing governmental and sovereign functions - Whether Minister erred in referring representation to Industrial Court - Industrial Relations Act 1967, s. 20

 

NORDIN HASSAN J

  • For the applicant - Lim Heng Seng & Amardeep Singh Toor Amardeep Singh; M/s Lee Hishammuddin Allen & Gledhill
  • For the 1st respondent - Liew Horng Bin; SFC
  • For the 3rd respondent - Ragunath Kesavan & Liew Chih Ching; M/s Kesavan

The prosecution, in preferring a charge against an accused in both the English language and Bahasa Malaysia must ensure that the two versions correspond and tally with each other and are not vitiated by any inconsistency or discrepancy. Where therefore an accused has been charged with an offence under s. 122B(b)(bb) of the Securities Industry Act 1983 read with s. 122(c) thereof for abetting a company who had knowingly permitted the making of a misleading statement to the Stock Exchange, the fact that the English version of the charge carries the word "permitted" but no translation thereof has been made to its Bahasa Malaysia version may bear very adversely on the legality of the charge and the prosecution. The absence of the corresponding translation could mean that in so far as the Bahasa Malaysia version of the charge is concerned, it was the company itself that was alleged to have made the misleading statement, thereby causing ambiguity, and prejudice and confusion to the accused. It needs little reminder that such a failure to properly frame the ingredients of the charge may be fatal and not curable under s. 156 of the Criminal Procedure Code, and may render the conviction of the accused therein unsustainable in law.
Yue Chi Kin v. PP [2020] 7 CLJ 224 [HC]

CRIMINAL PROCEDURE: Charge - Defective charge - Bahasa Malaysia ('BM') version of charge - Whether pre-requisite to prosecution - Whether BM version substantially different from statute - Whether curable - Whether fatal to conviction - Criminal Procedure Code, s. 156 - Securities Industry Act 1983, s. 122B

CRIMINAL PROCEDURE: Appeal - Appeal against conviction and sentence - Charge under s. 122B of Securities Industry Act 1983 for abetment - Defective charge - Whether rendered offence unknown under law - Absence of requisite mens rea of principle offence - Whether charge of abetment sustainable - Whether there was sufficient judicial assessment of fact and evidence by trial judge - Whether reference to irrelevant legislation led to substantial miscarriage of justice

 

 

MOHD NAZLAN GHAZALI J

  • For the appellant - SK Thong, FK Lim & SC Chan; M/s Thong Seng Kong & Assocs
  • For the respondent - Aimi Khalida Mohd Puzi & Mageswari; DPPs

ARTICLES

CLJ Article(s)

  1. FREEDOM OF ASSOCIATION: FROM NORDIN SALLEH TO KHALIQ MEHTAB [Read excerpt]
    by REZA RAHIM* [2020] 7 CLJ(A) xi

  2. [2020] 7 CLJ(A) xi
    logo
    MALAYSIA

    FREEDOM OF ASSOCIATION: FROM NORDIN SALLEH TO KHALIQ MEHTAB

    by
    REZA RAHIM*

    In 1992, the Supreme Court of Malaysia had a novel question of law to be decided before it. A five-member panel of the Supreme Court comprising of Abdul Hamid Omar LP; Harun Hashim SCJ; Mohd Yusoff Mohamed SCJ; Gunn Chit Tuan SCJ and Edgar Joseph Jr SCJ had the duty of deciding if the then newly enacted anti-hopping law by the Kelantan State Government was constitutional.[1]

    The case presented before them involved two elected representatives by the name of Nordin Salleh and Wan Najib Wan Mohamed who had resigned from their party Semangat 46 to join UMNO. They were the elected representatives of Sungai Pinang and Limbongan constituency.

    As far as the story goes, Nordin Salleh and Wan Najib were elected to the Dewan Undangan Negeri Kelantan during the General Elections which were held on 21 October 1990 and were therefore sworn in as members.

    . . .

    * Advocate & Solicitor of the High Court of Malaya.


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LNS Article(s)

  1. PERSONAL DATA PROTECTION IN THE AGE OF COVID-19* [Read excerpt]
    by Timothy Siaw, Elyse Diong [2020] 1 LNS(A) lxxxi

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

    PERSONAL DATA PROTECTION IN THE AGE OF COVID-19*

    by
    Timothy Siaw
    Elyse Diong

    In this article, Timothy Siaw and Elyse Diong analyse the importance of complying with the Personal Data Protection Act 2010 in the age of Covid-19.

    Introduction

    With the implementation of the Movement Control Order ("MCO") since 18 March 2020, the Conditional Movement Control Order ("CMCO") as well as the Recovery Movement Control Order, the Government has issued a number of Standard Operating Procedures ("SOPs") to control the spread of the Covid-19 pandemic.

    These SOPs[1] include measures to facilitate contact tracing and monitoring of potentially infected persons which pose additional complexity to data protection compliance and increased privacy risks. The digital footprint generated from the implementation of these SOPs include the attendance and details of employees such as name, identification number, temperature, health condition, time of entry and exit and the personal details of customers such as their names, temperatures and contact numbers.

    In the implementation of these SOPs, compliance with the Personal Data Protection Act 2010 and data security measures must not be overlooked.

    . . .

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


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  3. COMMUNITY LINKS: WHY CORPORATE SOCIAL RESPONSIBILITY IS GOOD FOR BUSINESS* [Read excerpt]
    by Declan Norrie** [2020] 1 LNS(A) lxxx

  4. [2020] 1 LNS(A) lxxx
    logo
    AUSTRALIA

    COMMUNITY LINKS: WHY CORPORATE SOCIAL RESPONSIBILITY IS GOOD FOR BUSINESS*

    by
    Declan Norrie**

    Declan Norrie, Manager CSR and Pro Bono at Proximity, explains how donations, volunteering, and responsible supply chain choices can transform a business community's impact and staff retention.

    Organisations are increasing their focus on corporate social responsibility (CSR) and showing their commitment to the communities in which they operate.

    They are doing this through donations to organisations in the community sector, staff volunteering, environmentally conscious office planning, supply chain choices, and more.

    As a result, businesses that focus on CSR not only positively contribute to their communities, but they also benefit from their involvement. Proximity has a strong commitment to our community and people, and as a result we have established a long-term CSR strategy, led by our CSR Manager, who is dedicated to the delivery and implementation of our strategy.

    As leaders in the CSR space, we will explore why we believe CSR is good for business and share our lessons learnt in building and delivering an effective CSR program.

    We hope our experience will give other organisations the opportunity to increase their positive community impact while understanding the overall business benefits.

    . . .

    *Published with kind permission of the Law Society of the Australian Capital Territory. See Ethos Law Week 2020.

    **Manager CSR and Pro Bono, Proximity.


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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) 222/2020 Prevention And Control Of Infectious Diseases (Measures Within Infected Local Areas) (No. 7) (Amendment) (No. 4) Regulations 2020 31 July 2020 1 August 2020 PU(A) 181/2020
PU(A) 221/2020 Prevention And Control Of Infectious Diseases (Measures Within Infected Local Areas) (No. 7) (Amendment) (No. 3) Regulations 2020 28 July 2020 29 July 2020 PU(A) 181/2020
PU(A) 220/2020 Prevention And Control Of Infectious Diseases (Fee For Coronavirus Disease 2019 (COVID-19) Detection Test) (Amendment) Regulations 2020 28 July 2020 29 July 2020 PU(A) 190/2020
PU(A) 219/2020 Financial Services (Exemption) Order 2020 28 July 2020 25 March 2020 ACT 758
PU(A) 218/2020 Real Property Gains Tax (Exemption) Order 2020 28 July 2020 1 June 2020 ACT 169

PU(B)

Number Title Date of Publication In force from Principal/ Amending Act No
PU(B) 349/2020 Notice Of Completion Of Revision And Inspection Of Supplementary Electoral Rolls - Kedah 29 July 2020 30 July 2020 PU(A) 293/2002
PU(B) 348/2020 Notice Of Completion Of Revision And Inspection Of Supplementary Electoral Rolls - Perlis 29 July 2020 30 July 2020 PU(A) 293/2002
PU(B) 347/2020 Notice Of Completion Of Revision And Inspection Of Supplementary Electoral Rolls - Parliament 29 July 2020 30 July 2020 PU(A) 293/2002
PU(B) 346/2020 Reservation Of Land For Public Purpose - Corrigendum 29 July 2020   PU(B) 160/2020
PU(B) 345/2020 Notice Of Initiation Of An Anti-Dumping Duty Investigation With Regard To The Imports Of Polyethylene Terephthalate Originating Or Exported From The People's Republic Of China, The Republic Of Indonesia, Japan, The Republic Of Korea, The United States Of America And The Socialist Republic Of Viet Nam 28 July 2020 29 July 2020 ACT 504

Legislation Alert

Updated

Act/Principal No. Title Amended by In force from Section amended
PU(A) 181/2020 Peraturan-Peraturan Pencegahan Dan Pengawalan Penyakit Berjangkit (Langkah-Langkah Di Dalam Kawasan Tempatan Jangkitan) (No. 7) 2020 PU(A) 222/2020 1 Ogos 2020 Peraturan 4A
PU(A) 181/2020 Peraturan-Peraturan Pencegahan Dan Pengawalan Penyakit Berjangkit (Langkah-Langkah Di Dalam Kawasan Tempatan Jangkitan) (No. 7) 2020 PU(A) 221/2020 29 Julai 2020 Peraturan 8
PU(A) 190/2020 Peraturan-Peraturan Pencegahan Dan Pengawalan Penyakit Berjangkit (Fi Bagi Ujian Pengesanan Penyakit Koronavirus 2019 (COVID-19)) 2020 PU(A) 220/2020 29 Julai 2020 Peraturan 3
ACT 787 Akta Kesalahan Yang Berhubungan Dengan Anugerah 2017 PU(A) 215/2020 29 Julai 2020 Jadual Pertama
PU(A) 437/1985 Food Regulations 1985 PU(A) 208/2020 22 July 2020 Regulation 41 and Sixteenth Schedule

Revoked

Act/Principal No. Title Revoked by In force from
PU(A) 251/2006 Entertainments Duty (Exemption) (No. 24) Order 2006 PU(A) 204/2020 1 August 2020
PU(A) 286/2015 Customs Duties (Goods Under the Framework Agreement on Comprehensive Economic Co-operation Among the Governments of the Member Countries of the Association of Southeast Asian Nations and the Republic of Korea) (ASEAN Harmonised Tariff Nomenclature) Order 2015 PU(A) 202/2020 1 August 2020
PU(A) 84/2020 Ministers of the Federal Government (No. 2) Order 2020 PU(A) 201/2020 See paragraph 1(2) of this Order
PU(A) 476/2008 Customs Duties (Goods Under Agreement on Comprehensive Economic Partnership Among Member States of the ASEAN and Japan) Order 2008 [Revoked By PU(A) 191/2020] PU(A) 191/2020 1 July 2020
PU(B) 112/2019 Appointment of Member of the Authority PU(B) 279/2020 1 June 2020 to 31 May 2022