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Issue #3/2020
09 January 2020

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New This Week

  1. Case(s) of the Week

    1. JACK-IN PILE (M) SDN BHD v. BAUER (MALAYSIA) SDN BHD & ANOTHER APPEAL [2020] 1 CLJ 299

    2. TONY PUA KIAM WEE v. GOVERNMENT OF MALAYSIA & ANOTHER APPEAL [2020] 1 CLJ 337

    3. LEW YEE HONG & ANOR v. KETUA SETIAUSAHA, KEMENTERIAN DALAM NEGERI & ORS [2020] 1 CLJ 419

  2. Appeal Updates

    1. Appeal Updates

  3. Latest Cases

    1. Legal Network Series

    2. CLJ 2020 Volume 1 (Part 3)

  4. Articles

    1. LNS Article(s)

  5. Legislation Highlights

    1. Principal Acts

    2. Amending Acts

    3. PU(A)

    4. PU(B)

    5. Legislation Alert

CASE(S) OF THE WEEK

JACK-IN PILE (M) SDN BHD v. BAUER (MALAYSIA) SDN BHD & ANOTHER APPEAL [2020] 1 CLJ 299
FEDERAL COURT, PUTRAJAYA
RICHARD MALANJUM CJ; AHMAD MAAROP PCA; AZAHAR MOHAMED FCJ; ALIZATUL KHAIR OSMAN FCJ; IDRUS HARUN FCJ
[CIVIL APPEAL NO: 02(f)-58-07-2018(B) & 02(f)-59-07-2018(B)]
16 OCTOBER 2019

Given that the Construction Industry Payment and Adjudication Act 2012 (‘CIPAA’) impacts parties’ substantive rights, a retrospective application of the CIPAA would have the effect of interfering with the basic principle of freedom of contract. Thus, the CIPAA in its entirety should have prospective application only.

CONSTRUCTION LAW: Adjudication - Proceedings - Dispute on non-payment of claims - Construction Industry Payment and Adjudication Act 2012 ('CIPAA') - Whether applied to construction contracts entered into before coming into operation of CIPAA - Parties entered into construction contract containing conditional payment clause - Applicability of s. 35 of CIPAA - Whether prohibition of conditional payment under s. 35 of CIPAA mere procedural matter - Whether parties' freedom to contract would be manifestly affected - Whether bargain entered into by parties would be frustrated - Whether CIPAA prospective or retrospective in its operation - Whether CIPAA impacted parties' substantive rights - Whether construction contract remained valid - Whether entire adjudication proceedings rendered void and ought to be set aside

STATUTORY INTERPRETATION: Retrospective operation - Construction of statutes - Construction Industry Payment and Adjudication Act 2012 ('CIPAA') came into force on 15 April 2014 - Disputes on non-payment of claims - Whether CIPAA applied to construction contracts entered into before coming into operation of said Act - Parties entered into construction contract containing conditional payment clause - Applicability of s. 35 of CIPAA - Whether prohibition of conditional payment under s. 35 of CIPAA mere procedural matter - Whether parties' freedom to contract manifestly affected - Whether bargain entered into by parties frustrated - Whether CIPAA prospective or retrospective in its operation - Whether CIPAA impacted parties' substantive rights - Whether construction contract remained valid - Whether Parliament intended CIPAA to have retrospective effect - Federal Constitution, art. 66 cl. (5) - Interpretation Acts 1948 and 1967, ss. 2(3), 19(1), 43(a)


TONY PUA KIAM WEE v. GOVERNMENT OF MALAYSIA & ANOTHER APPEAL [2020] 1 CLJ 337
FEDERAL COURT, PUTRAJAYA
TENGKU MAIMUN TUAN MAT CJ; AHMAD MAAROP PCA; AZAHAR MOHAMED CJ (MALAYA); ALIZATUL KHAIR OSMAN FCJ; ROHANA YUSUF FCJ; MOHD ZAWAWI SALLEH FCJ; NALLINI PATHMANATHAN FCJ
[CIVIL APPEALS NO: 01(i)-44-11-2018(W) & 02(i)-111-11-2018(W)]
19 NOVEMBER 2019

In determining whether the Prime Minister or a Minister is a ‘public officer’ for the purpose of the tort of misfeasance in public office, the court is not limited by the definition of ‘public officer’ in s. 3 of the Interpretation Acts 1948 and 1967 read with arts. 132 and 160 of the Federal Constitution but may look further at the common law definition of ‘public officer’. An interpretation so limited or restricted would render immune the holders of the highest offices in administration and is repugnant to common sense and the rule of law. The Prime Minister, being a public officer holding a public office in law, may be liable for such tort and is therefore susceptible to a like suit undertaken by a citizen or a taxpayer.

TORT: Misfeasance in public office - Cause of action - Claim against former Prime Minister ('PM') - Whether PM 'public officer' - Whether definition of 'public officer' excludes members of administration - Whether common law tort of misfeasance in public office applicable in Malaysia - Whether limited by definition of 'public officer' in s. 3 of Interpretation Acts 1948 and 1967 ('IA') read together with arts. 132 and 160 of Federal Constitution ('FC') - Whether there is express legislative intent in FC or IA to abrogate common law definition of 'public officer' - Whether application of definition under s. 3 of IA contrary to s. 2 of Government Proceedings Act 1956 ('GPA') - Whether renders Government immune from suit - Whether GPA provides for vicarious liability

TORT: Misfeasance in public office - Cause of action - Claim against former Prime Minister ('PM') - Allegation that PM abused public office for personal benefit - Claim by taxpayer - Whether elements of tort established - Whether 'antecedent legal right or interest' and 'proximity' established - Whether funds claimed to be dishonestly abused or dissipated were public funds - Whether taxpayer had requisite locus standi to commence proceedings - Whether losses pleaded sufficient to constitute valid cause of action

WORDS & PHRASES: 'public officer' - Definition of - Whether excludes members of administration - Whether common law tort of misfeasance in public office applicable in Malaysia - Whether limited by definition of 'public officer' in s. 3 of Interpretation Acts 1948 and 1967 ('IA') read together with arts. 132 and 160 of Federal Constitution ('FC') - Whether there is express legislative intent in FC or IA to abrogate common law definition of 'public officer' - Whether application of definition under s. 3 of IA contrary to s. 2 of Government Proceedings Act 1956 ('GPA') - Whether renders Government immune from suit - Whether GPA provides for vicarious liability


LEW YEE HONG & ANOR v.
KETUA SETIAUSAHA, KEMENTERIAN DALAM NEGERI & ORS
[2020] 1 CLJ 419
HIGH COURT MALAYA, KUALA LUMPUR
FAIZAH JAMALUDIN J
[JUDICIAL REVIEW NO: WA-25-198-10-2016]
30 SEPTEMBER 2019

The ouster clause in s. 2 of Part III of the Second Schedule to the Federal Constitution does not absolutely preclude the jurisdiction of the court to entertain applications for certiorari and for orders and declarations in respect of citizenship. The presence of such ouster clause is not the same as saying that matters concerning citizenship or immigration as ‘non-justiciable’ or that they are not amenable for deliberations before the court. 

ADMINISTRATIVE LAW: Judicial review - Decision of Director General of National Registration Department ('NRD') of Malaysia - Citizenship - Child born to Malaysian citizen father and non-citizen mother - Biological parents not married to each other at time of child's birth - Child accorded with non-citizen status - Parents' marriage registered one year after child's birth - Application to register child as citizen rejected by NRD without reasons - Whether court seized with jurisdiction to entertain applications for order of certiorari and for declarations in respect of citizenship - Federal Constitution, ss. 14(1)(b), 15A & 15(2)

CONSTITUTIONAL LAW: Citizenship - Application for - Child born to Malaysian citizen father and non-citizen mother - Biological parents not married to each other at time of child's birth - Parents' marriage registered one year after child's birth - Application to register child as citizen rejected by National Registration Department without reasons - Whether child rendered legitimate by subsequent marriage of parents - Whether child acquired citizenship by operation of law - Whether child satisfied requirements in s. 44(1)(a) of Specific Relief Act 1950 - Whether child had legitimate expectation to acquire citizenship of Malaysia - Whether child ought to be given Malaysian birth certificate and identity card - Federal Constitution, ss. 14(1)(b), 15A & 15(2)


APPEAL UPDATES  
  1. Lee Heng Yau lwn. Pacific Trustees Berhad [2019] 1 LNS 542 (CA) mengesahkan kes Mahkamah Tinggi Pacific Trustees Berhad v. Lee Heng Yau & Ors [Saman Pemula No: BA - 24NCVC- 179 -07/2017]

  2. Abd Khalid Md Isa lwn. PP [2019] 1 LNS 675 (CA) mengesahkan kes Mahkamah Tinggi PP lwn. Abd Khalid Md Isa [Perbicaraan Jenayah No: 45B - 35 - 10/2015]

LATEST CASES

Legal Network Series

[2018] 1 LNS 182

ROSLEE GHAZALI & SATU LAGI lwn. BORHANUDIN HASSAN & SATU LAGI

LALULINTAS JALAN: Kecuaian - Kemalangan jalan raya - Perlanggaran antara motosikal dan motolori - Kemalangan maut - Penentuan liabiliti - Kemalangan di persimpangan jalan - Motolori melanggar motosikal dari belakang secara laju dan tiba-tiba - Kerosakan keseluruhan motosikal - Sama ada pemandu motolori adalah cuai di dalam mengendalikan motolorinya - Sama ada pemandu motolori adalah bertanggungan 100%

GANTI RUGI: Kehilangan tanggungan - Tuntutan kemalangan maut - Tuntutan kehilangan tanggungan untuk ahli keluarga lain selain suami, isteri, ibu bapa dan anak - Sama ada ibu bapa boleh menuntut kehilangan tanggungan untuk kegunaan adik-beradik dan ahli keluarga lain - Sama ada perbelanjaan terhadap persekolahan adik-adik si mati wajar harus ditolak daripada jumlah kehilangan tanggungan ibu bapa - Akta Undang-Undang Sivil 1956, s. 7(2)

  • Bagi pihak plaintif-plaintif/perayu - Chan Kheng Fai; T/n Wang & SB Wong
  • Bagi pihak defendan-defendan/responden - Muhammad Shukri Jalil; T/n Lawrence Pereira & Partners

[2018] 1 LNS 184

NUR ALI lwn. VARGHESE MATHEW & SATU LAGI

GANTI RUGI: Rayuan - Rayuan terhadap awad - Tuntutan ganti rugi am bagi kecederaan diri - Sama ada hakim bicara telah bergantung kepada nas undang-undang dan laporan-laporan perubatan - Sama ada hakim bicara telah memberi alasan dan justifikasi terhadap awad yang diberinya - Sama ada awad hakim bicara wajar diganggu

GANTI RUGI: Kehilangan pendapatan - Taksiran - Kehilangan pendapatan semasa cuti sakit - Sama ada tolakan perbelanjaan semasa wajar dibuat - Sama ada perbelanjaan semasa wujud semasa kemalangan

GANTI RUGI: Kecederaan diri - Kos perubatan - Bil rawatan hospital penawar - Sama ada hanya 1/3 daripada jumlah kos hospital penawar sewajarnya dibenarkan - Sama ada kemasukan ke hospital penawar merupakan pilihan plaintif - Sama ada plaintif telah memitigasikan perbelanjaan perubatan

  • Bagi pihak plaintif-plaintif/responden - Chan Kheng Fai; T/n Wang & SB Wong
  • Bagi pihak defendan/perayu - Muhammad Shukri Jalil; T/n Lawrence Pereira & Partners

[2018] 1 LNS 493

FIRST BINARY PLANTATION (KUCHING) SDN BHD v. GUANGKEN RUBBER PLANTATION (SARAWAK) SDN BHD

CIVIL PROCEDURE: Parties - Intervention - Application grounded on premise that applicant has Native Customary Rights over land - Plaintiff's action is to restrain defendant from trespassing on land - Whether proposed interveners would be directly affected by any order of court relating to plaintiff's action - Whether proposed intervener must show that his affected interest exists at time of application

  • For the plaintiff - George Lo & Jonathan Tay; M/s George Lo & Partners
  • For the proposed interveners: Dominique Ng; M/s Dominique Ng & Associates

[2018] 1 LNS 559

TIONG SHIUN SAN & ORS v. LEE KIM JIUNG

CIVIL PROCEDURE: Injunction - Mareva injunction - Application under s. 19 of Debtors Act 1957 - Preservation of proceeds of sale pending trial - Allegation that defendant was surreptitiously disposing of his shares or lands - Whether application was premature - Whether defendant had intention to obstruct or delay execution of any judgment

  • For the plaintiffs - Ian Lee & Arthur Lee; M/s Arthur Lee, Lin & Co
  • For the defendant - Leong Hsin Ru & Jacqueline Bong; M/s Tang & Partners

[2018] 1 LNS 560

NGU CHOO CHIEW v. LEONARD SABU KHENG BOO

CIVIL PROCEDURE: Striking out - Defence - Application premised on contention that memorandum of appearance was filed late - Defendant failed to obtain leave of court to file defence out of time - Memorandum of appearance was entered before certificate of non-appearance filed - Plaintiff filing reply to defence - Whether taking a fresh step in proceedings - Whether plaintiff waived his right to challenge the irregularity - Whether Sessions Judge erred in striking out the defence

  • For the appellant - Lee Yi Eng; M/s Arthur Lee, Lin & Co
  • For the respondent - Ng Chyae Chin & Alexander; M/s Teng Alex and Company

CLJ 2020 Volume 1 (Part 3)

Given that the Construction Industry Payment and Adjudication Act 2012 (‘CIPAA’) impacts parties’ substantive rights, a retrospective application of the CIPAA would have the effect of interfering with the basic principle of freedom of contract. Thus, the CIPAA in its entirety should have prospective application only.
Jack-In Pile (M) Sdn Bhd v. Bauer (Malaysia) Sdn Bhd & Another Appeal [2020] 1 CLJ 299 [FC]

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CONSTRUCTION LAW: Adjudication - Proceedings - Dispute on non-payment of claims - Construction Industry Payment and Adjudication Act 2012 ('CIPAA') - Whether applied to construction contracts entered into before coming into operation of CIPAA - Parties entered into construction contract containing conditional payment clause - Applicability of s. 35 of CIPAA - Whether prohibition of conditional payment under s. 35 of CIPAA mere procedural matter - Whether parties' freedom to contract would be manifestly affected - Whether bargain entered into by parties would be frustrated - Whether CIPAA prospective or retrospective in its operation - Whether CIPAA impacted parties' substantive rights - Whether construction contract remained valid - Whether entire adjudication proceedings rendered void and ought to be set aside

STATUTORY INTERPRETATION: Retrospective operation - Construction of statutes - Construction Industry Payment and Adjudication Act 2012 ('CIPAA') came into force on 15 April 2014 - Disputes on non-payment of claims - Whether CIPAA applied to construction contracts entered into before coming into operation of said Act - Parties entered into construction contract containing conditional payment clause - Applicability of s. 35 of CIPAA - Whether prohibition of conditional payment under s. 35 of CIPAA mere procedural matter - Whether parties' freedom to contract manifestly affected - Whether bargain entered into by parties frustrated - Whether CIPAA prospective or retrospective in its operation - Whether CIPAA impacted parties' substantive rights - Whether construction contract remained valid - Whether Parliament intended CIPAA to have retrospective effect - Federal Constitution, art. 66 cl. (5) - Interpretation Acts 1948 and 1967, ss. 2(3), 19(1), 43(a)

RICHARD MALANJUM CJ
AHMAD MAAROP PCA
AZAHAR MOHAMED FCJ
ALIZATUL KHAIR OSMAN FCJ
IDRUS HARUN FCJ

  • For the appellant - Lam Wai Loon, Rohan Arasoo Jeyabalah, Serene Hiew Mun Yi & Teoh Yen Yee; M/s Harold & Lam Partnership
  • For the respondent - Sanjay Mohan, Gobinath Karuppan & Adam Lee; M/s Sanjay Mohan

In determining whether the Prime Minister or a Minister is a ‘public officer’ for the purpose of the tort of misfeasance in public office, the court is not limited by the definition of ‘public officer’ in s. 3 of the Interpretation Acts 1948 and 1967 read with arts. 132 and 160 of the Federal Constitution but may look further at the common law definition of ‘public officer’. An interpretation so limited or restricted would render immune the holders of the highest offices in administration and is repugnant to common sense and the rule of law. The Prime Minister, being a public officer holding a public office in law, may be liable for such tort and is therefore susceptible to a like suit undertaken by a citizen or a taxpayer.
Tony Pua Kiam Wee v. Government Of Malaysia & Another Appeal [2020] 1 CLJ 337 [FC]

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TORT: Misfeasance in public office - Cause of action - Claim against former Prime Minister ('PM') - Whether PM 'public officer' - Whether definition of 'public officer' excludes members of administration - Whether common law tort of misfeasance in public office applicable in Malaysia - Whether limited by definition of 'public officer' in s. 3 of Interpretation Acts 1948 and 1967 ('IA') read together with arts. 132 and 160 of Federal Constitution ('FC') - Whether there is express legislative intent in FC or IA to abrogate common law definition of 'public officer' - Whether application of definition under s. 3 of IA contrary to s. 2 of Government Proceedings Act 1956 ('GPA') - Whether renders Government immune from suit - Whether GPA provides for vicarious liability

TORT: Misfeasance in public office - Cause of action - Claim against former Prime Minister ('PM') - Allegation that PM abused public office for personal benefit - Claim by taxpayer - Whether elements of tort established - Whether 'antecedent legal right or interest' and 'proximity' established - Whether funds claimed to be dishonestly abused or dissipated were public funds - Whether taxpayer had requisite locus standi to commence proceedings - Whether losses pleaded sufficient to constitute valid cause of action

WORDS & PHRASES: 'public officer' - Definition of - Whether excludes members of administration - Whether common law tort of misfeasance in public office applicable in Malaysia - Whether limited by definition of 'public officer' in s. 3 of Interpretation Acts 1948 and 1967 ('IA') read together with arts. 132 and 160 of Federal Constitution ('FC') - Whether there is express legislative intent in FC or IA to abrogate common law definition of 'public officer' - Whether application of definition under s. 3 of IA contrary to s. 2 of Government Proceedings Act 1956 ('GPA') - Whether renders Government immune from suit - Whether GPA provides for vicarious liability

TENGKU MAIMUN TUAN MAT CJ
AHMAD MAAROP PCA
AZAHAR MOHAMED CJ (MALAYA)
ALIZATUL KHAIR OSMAN FCJ
ROHANA YUSUF FCJ
MOHD ZAWAWI SALLEH FCJ
NALLINI PATHMANATHAN FCJ

(Civil Appeal No: 01(i)-44-11-2018(W))

  • For the appellant - Malik Imtiaz Sarwar, Tan Ch'eng Leong, Surendra Ananth & Yvonne Lim; M/s KP Lu & Tan
  • For the respondent - Alice Loke Yee Ching; SFC

(Civil Appeal No: 02(i)-111-11-2018(W))

  • For the appellant - Malik Imtiaz Sarwar, Tan Ch'eng Leong, Surendra Ananth & Yvonne Lim; M/s KP Lu & Tan
  • For the respondent - Mohd Hafarizam Harun, Norhazira Abu Haiyan & Muhammad Amin Othman; M/s Hafarizam Wan & Aisha Mubarak

 

Students of a branch of the Chinese Private Secondary School are eligible to sit for the United Examination Certificate conducted by the United Chinese School Committees’ Association of Malaysia or Dong Zong and are not required to obtain a separate written approval therefor from the Director of Examinations. Approval to hold and conduct examinations was implicit in the approval by the Minister to register the school.
Chow Jieen & Ors v. Chairman Of United Chinese School Committees’ Association Of Malaysia & Anor [2020] 1 CLJ 390 [CA]

EDUCATION: Examination - Prohibition on conduct of examinations - Private school - Chinese Private Secondary Schools ('CPSS') - Unified Examination Certificate ('UEC examination') conducted by United Chinese School Committees' Association of Malaysia ('Dong Zong') - Whether students of Sekolah Menengah Chong Hwa Kuantan eligible to sit for UEC examination - Whether school part of CPSS - Whether Dong Zong ought to obtain prior written approval from Director of Examinations under s. 69(1) of the Education Act 1996 - Whether Dong Zong came within s. 69(4)(a) of Education Act 1996 - Whether there exists provision in Education Act 1996 which mandates separate application to Director of Examinations - Whether conduct of UEC examination by Dong Zong and students taking examination lawful - Education Act 1996, ss. 16, 17, 18, 19 & 151

 

IDRUS HARUN JCA
SURAYA OTHMAN JCA
STEPHEN CHUNG JCA

  • For the appellants - Douglas Yee Wan-Li & Lim Pit Feng; M/s Douglas Yee
  • For the 1st respondent - Wong Kong Fatt & Lim Hoon Shi; M/s KF Wong & Lee
  • For the 2nd respondent - Ong Siew Wan & Toh Seng Soon; M/s Andrew David Wong & Ong

Under s. 60(4)(a) and (6) of the Probate and Administration Act 1959, it is mandatory to obtain the permission of the court before an administrator of an estate can execute any transfer of the estate’s property. Absent the permission and the transfer is void and liable to be set aside. 
Mohd Aslam Khan Syed Gulam v. C Mageswary Chandran & Ors [2020] 1 CLJ 402 [CA]

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SUCCESSION: Probate and administration - Administration of estate - Transfer of property - Administrator's action against respondents premised on acts of forgery, fraud, illegal or unlawful means to effect transfer of property - Whether there was fraud in transfer of property - Whether administrator sole beneficiary of deceased's estate - Whether administrator had necessary locus standi to bring action - Whether mandatory to obtain previous permission of court before administrator of estate could execute any transfer of estate's property - Whether interest and ownership of respondents over property defeasible, void ab initio and illegal - Whether transfer of property liable to be set aside - Probate and Administration Act 1959, s. 60(4)(a) & (6)

LIMITATION: Cause of action - Accrual of - Action based on fraud - Administrator's action against respondents premised on acts of fraud to effect transfer of property - Whether time for purposes of limitation begin to run only after discovery of fraud - Whether suit filed within limitation period - Whether claim time barred - Limitation Act 1953, s. 29

TRUSTS: Constructive trust - Administration of estate - Administrator's action against respondents premised on acts of fraud to effect transfer of property - Whether there was fraud in transfer of property - Whether respondents a purchaser in good faith for valuable consideration - Whether respondents and its beneficiaries obtained good title to property - Whether respondents held property as constructive trustee for and on behalf of deceased's estate - National Land Code, s. 340(3)

ABDUL RAHMAN SEBLI JCA
MARY LIM JCA
HASNAH MOHAMMED HASHIM JCA

 

  • For the appellant - Krishna Dallumah, Venka Arun & Carly Yap; M/s Ven & Assocs
  • For the 1st, 2nd & 5th respondents - M Manoharan; M/s M Manoharan & Co
  • For the 3rd & 4th respondents - Nik Haize Azlin Nabidin; State Legal Advisor, Selangor

Vehicles which are subject to the Customs Duties (Exemption) Order 1988 must strictly adhere to the conditions specified therein; a breach of the condition(s) for exemption may attract the penal consequences stipulated in s. 138 of the Customs Act 1967.
PP v. Soh Weng Thiam & Ors And Another Appeal [2020] 1 CLJ 411 [CA]

CRIMINAL PROCEDURE: Customs Act 1967 - Section 138 - Vehicles found outside Principal Customs Area in breach of Customs Duties (Exemption) Order 1988 - Whether s. 138 limited only to breaches of Customs Act - Whether includes transgression of any 'condition', 'licence, permit' or 'exemption' in Exemption Order - Whether disjunctive conjunction 'or' in s. 138 included breach of a condition of any exemption under Act - Whether breach of condition attracts penal consequences

 

YAACOB MD SAM JCA
ZABARIAH MOHD YUSOF JCA
RAVINTHRAN PARAMAGURU JCA

  • For the appellant - Zaki Asyraf Zubir; DPP
  • For the respondents - M M Athimulan, Ramli Mohd Salleh & Kamini Muniandy; M/s Athimulan & Co

The ouster clause in s. 2 of Part III of the Second Schedule to the Federal Constitution does not absolutely preclude the jurisdiction of the court to entertain applications for certiorari and for orders and declarations in respect of citizenship. The presence of such ouster clause is not the same as saying that matters concerning citizenship or immigration as ‘non-justiciable’ or that they are not amenable for deliberations before the court. 
Lew Yee Hong & Anor v. Ketua Setiausaha, Kementerian Dalam Negeri & Ors [2020] 1 CLJ 419 [HC]

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ADMINISTRATIVE LAW: Judicial review - Decision of Director General of National Registration Department ('NRD') of Malaysia - Citizenship - Child born to Malaysian citizen father and non-citizen mother - Biological parents not married to each other at time of child's birth - Child accorded with non-citizen status - Parents' marriage registered one year after child's birth - Application to register child as citizen rejected by NRD without reasons - Whether court seized with jurisdiction to entertain applications for order of certiorari and for declarations in respect of citizenship - Federal Constitution, ss. 14(1)(b), 15A & 15(2)

CONSTITUTIONAL LAW: Citizenship - Application for - Child born to Malaysian citizen father and non-citizen mother - Biological parents not married to each other at time of child's birth - Parents' marriage registered one year after child's birth - Application to register child as citizen rejected by National Registration Department without reasons - Whether child rendered legitimate by subsequent marriage of parents - Whether child acquired citizenship by operation of law - Whether child satisfied requirements in s. 44(1)(a) of Specific Relief Act 1950 - Whether child had legitimate expectation to acquire citizenship of Malaysia - Whether child ought to be given Malaysian birth certificate and identity card - Federal Constitution, ss. 14(1)(b), 15A & 15(2)

FAIZAH JAMALUDIN J

  • For the applicant - Annou Xavier & Larissa Ann Louis; M/s Azri, Lee Swee Seng & Co
  • For the respondents - Maisarah Juhari & Isyishad Ismail; SFCs

A photocopy of a document, being a copy made from the original by a mechanical process within the meaning of s. 63(b) of the Evidence Act 1950 ('Act'), is secondary evidence. It would be available as evidence only 'under the combined provisions of ss. 63(b) and 65 of the Act' and it would not be if an explanation is not given as to why the original is not produced.
Mohd Rafizi Ramli & Anor v. PP [2020] 1 CLJ 439 [HC]

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EVIDENCE: Admissibility - Documentary evidence - Photocopy - Accused persons convicted for offence of disclosing banking summaries - Photocopies of press statement and banking summaries distributed at press conference - Photocopied documents adduced in court - Whether secondary evidence - Whether admissible as evidence - Evidence Act 1950, ss. 63(b), 64 & 65

BANKING: Banking and Financial Institutions Act 1989 - Section 97(1) - Accused persons convicted for offence of disclosing banking summaries - Accused persons sentenced to 30 months' imprisonment - Photocopies of press statement and banking summaries distributed at press conference - Photocopied documents adduced in court - Whether admissible as evidence - Whether conviction and sentence safe - Whether ought to be set aside

MOHD YAZID MUSTAFA J

-


ARTICLES

LNS Article(s)

  1. THE FEDERAL COURT'S DECISION IN TIRUMENIYAR [Read excerpt]
    by KANDIAH CHELLIAH* [2020] 1 LNS(A) iii

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

    THE FEDERAL COURT'S DECISION IN TIRUMENIYAR

    by
    KANDIAH CHELLIAH*

    1. At the outset, it must be mentioned that an employee being carried in a motor vehicle belonging to his Employer and who is also the Insured, (ie one who paid and taken out the motor insurance policy for the vehicle) with the vehicle driven by another employee and is involved in an accident with or without involving another vehicle, faces an uphill task to claim an indemnity i.e. damages for bodily injuries, or his family if he dies, for dependency or loss of support, from the said vehicle’s Insurers.

    2. The Insurers, will conveniently refer to one standard clause in their policy of insurance which states:

    “The Insurers shall not be liable in respect of-

    i) death or bodily injuries to any person in the employment of the Insured arising out of and in the course of such employment.

    ii) death or bodily injury to any person (other than a passenger carried by reason of and in pursuance of a contract of employment) being carried in or upon entering or getting on to or alighting from the motor vehicle.”

    . . .

    *Advocate & Solicitor


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LEGISLATION HIGHLIGHTS

Principal Acts

Number Title In force from Repealing
ACT 824 Malaysian Health Promotion Board (Dissolution) Act 2019 Not Yet In Force -
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 -
ACT 822 National Anti-Financial Crime Centre Act 2019 2 January 2020 [PU(B) 664/2019] -
ACT 820 Superior of the Institute of the Franciscan Missionaries of Mary (Incorporation) Act 1957 (Revised 2019) 27 December 2019 pursuant to paragraph 6(1)(xxiii) of the Revision of Laws Act 1968 [Act 1]; Revised up to 1 December 2019; First enacted in 1957 as Federation of Malaya Ordinance No 39 of 1957 -
ACT 819 Daughters of Charity of the Canossian Institute (Incorporation) Act 1957 (Revised 2019) 27 December 2019 pursuant to paragraph 6(1)(xxiii) of the Revision of Laws Act 1968 [Act 1]; Revised up to 1 December 2019; First enacted in 1957 as Federation of Malaya Ordinance No 33 of 1957 -

Amending Acts

Number Title In force from Principal/Amending Act No
ACT A1611 Employees Provident Fund (Amendment) Act 2019 Not Yet In Force ACT 452
ACT A1610 Petroleum (Income Tax) (Amendment) Act 2019 1 January 2020 ACT 543
ACT A1609 Income Tax (Amendment) Act 2019 1 January 2020 ACT 53
ACT A1608 Supply Act 2020 1 January 2020  
ACT A1607 Trade Descriptions (Amendment) Act 2019 Not Yet In Force ACT 730

PU(A)

Number Title Date of Publication In force from Principal/ Amending Act No
PU(A) 325/2019 Customs (Import Licence Fee for Motor Vehicle) (Amendment) Regulations 2019 26 November 2019 1 January 2017 except for para 2(a); 1 April 2017 - para 2(a) PU(A) 370/2016
PU(A) 324/2019 Customs (Provisional Anti-Dumping Duties) (No. 2) Order 2019 25 November 2019 26 November 2019 to 20 March 2020 ACT 504; ACT 235
PU(A) 323/2019 Price Control and Anti-Profiteering (Determination of Maximum Retail Price for Petrol and Diesel) (No. 42) Order 2019 22 November 2019 16 November 2019 ACT 723
PU(A) 322/2019 Arms (Amendment of Second Schedule) Regulations 2019 22 November 2019 1 December 2019 ACT 206
PU(A) 321/2019 Civil Aviation Authority of Malaysia (Vesting Date) Order 2019 21 November 2019 19 February 2018 ACT 788

PU(B)

Number Title Date of Publication In force from Principal/ Amending Act No
PU(B) 666/2019 Appointment of Date of Coming Into Operation 31 December 2019 1 January 2020 ACT A1593
PU(B) 665/2019 Appointment of Date of Coming Into Operation 31 December 2019 1 January 2020 ACT A1594
PU(B) 664/2019 Appointment of Date of Coming Into Operation 31 December 2019 1 January 2020 ACT 822
PU(B) 663/2019 Appointment of Deputy Public Prosecutor 31 December 2019 4 December 2018 ACT 593
PU(B) 662/2019 Appointment of Date of Coming Into Operation 31 December 2019 1 January 2020 ACT A1595

Legislation Alert

Updated

Act/Principal No. Title Amended by In force from Section amended
ACT 206 Arms Act 1960 (Revised 1978) PU(A) 322/2019 1 December 2019 Second Schedule
PU(A) 424/1997 Trade Descriptions (Cheap Sale Price) Regulations 1997 PU(A) 327/2019 2 January 2020 Regulations 3, 5, 6, 6A, 7, 8, 9, 12A, 13 and 14; First and Second Schedules
PU(A) 370/2016 Customs (Import Licence Fee For Motor Vehicle) Regulations 2016 PU(A) 325/2019 1 January 2017 except for para. 2(a); 1 April 2017 - para. 2(a) Regulations 2 and 5
ACT 543 Petroleum (Income Tax) Act 1967 (Revised 1995) ACT A1610 1 January 2020 Sections 2, 42, 44 45 and Third Schedule
ACT 53 Income Tax Act 1967 (Revised 1971) ACT A1609 1 January 2020 Sections 2, 98, 100, 101 and Schedule 5

Revoked

Act/Principal No. Title Revoked by In force from
PU(A) 157/2018 Co-Operative Societies (Assumption of Control) (Appointment) Order 2018 PU(A) 315/2019 15 May 2019
PU(A) 305/1999 Johor Port Authority (Extension of Functions) Order 1999 PU(A) 308/2019 1 November 2019
PU(A) 50/2019 Co-Operative Societies (Assumption of Control) (Appointment) Order 2019 PU(A) 292/2019 31 October 2019
PU(A) 127/2015 Strata Titles (Federal Territory of Kuala Lumpur) Rules 2015 PU(A) 282/2019 1 January 2020 - Federal Territory of Kuala Lumpur only
PU(A) 51/2000 Income Tax (Deduction For Information Technology-Related Expenditure) Rules 2000 PU(A) 274/2019 Year of assessment 2018