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Issue #8/2020
13 February 2020

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New This Week

  1. Case(s) of the Week

    1. CIMB BANK BHD v. SIVADEVI SIVALINGAM [2020] 2 CLJ 151

    2. ASIA PACIFIC HIGHER LEARNING SDN BHD v. MAJLIS PERUBATAN MALAYSIA & ANOR [2020] 2 CLJ 346

  2. Appeal Updates

    1. Appeal Updates

  3. Latest Cases

    1. Legal Network Series

    2. CLJ 2020 Volume 2 (Part 2)

    3. CLJ 2020 Volume 2 (Part 3)

  4. Articles

    1. CLJ Article(s)

    2. 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

CIMB BANK BHD v. SIVADEVI SIVALINGAM [2020] 2 CLJ 151
FEDERAL COURT, PUTRAJAYA
AHMAD MAAROP PCA; RAMLY ALI FCJ; ALIZATUL KHAIR OSMAN FCJ;
ROHANA YUSUF FCJ; MOHD ZAWAWI SALLEH FCJ
[CIVIL APPEAL NO: 02(f)-62-08-2018(J)]
15 NOVEMBER 2019

Section 21(1) of the Limitation Act 1953 applies to an action for recovery of monies secured by a charge, but not to an action for the sale of its security. The section, hence, does not apply to an application by a chargee to enforce a charge by way of an order for sale under s. 256 or s. 260 of the National Land Code. The non-applicability of s. 21(1) does not however mean that a chargee can take forever to act or enforce a charge. Whilst the statutory defence of limitation cannot be resorted to by the defaulting chargor, he is at liberty to plead equitable defences such as laches and acquiescence, as well as 'cause to the contrary' so provided for by s. 256(3) of the Code.

LIMITATION: Period of limitation - Charge of land - Bank granted loan to borrower - Borrower charged land as security for loan - Borrower defaulted in repayment of loan - Bank issued and served notice of default in respect of charge - Borrower failed to remedy breach of charge - Bank sought order for sale of land by way of public auction - Whether foreclosure proceedings or order for sale time-barred - Whether proceedings commenced by bank for sale of land pursuant to ss. 256 or 260 of National Land Code subject to s. 21(1) or (2) of Limitation Act 1953 - Whether right of action to receive money accrued - Whether limitation period begins to run following failure to make payment of loan instalments or upon failure to comply with statutory demand in Form 16D


ASIA PACIFIC HIGHER LEARNING SDN BHD v.
MAJLIS PERUBATAN MALAYSIA & ANOR
[2020] 2 CLJ 346
HIGH COURT MALAYA, KUALA LUMPUR
AZIZUL AZMI ADNAN J
[CIVIL SUIT NO: 22NCVC-51-02-2014]
24 OCTOBER 2019

Section 52 of the Malaysian Qualifications Agency Act 2007 concerns the standard of higher education establishments generally, and specifically in the case of the Malaysian Medical Council (MMC), the standards of medical care, and it was for this purpose that the section confers on MMC discretionary powers to assess and evaluate prospective applications for accreditation. Since the section also accrues for the benefit of higher education establishments that propose to offer degree programmes such as the plaintiff, the plaintiff therefore has a right for its application for accreditation to be considered fairly, and in accordance with a rational set of principles applied consistently with all applications for accreditations.

TORT: Negligence - Statutory duty - Breach of - Accreditation survey of degree programmes offered by higher learning institution - Panel appointed Malaysian Medical Council ('MMC') to evaluate programmes - Panel conducted two surveys and approved three offshore programmes - Offshore programmes converted into local medical degree programmes - Whether there was conversion or absorption - Whether medical degree programmes terminated - Whether discretion properly exercised - Whether panel adhered to accreditation guidelines - Whether there was duty of care owed by MMC to claimant - Whether there was breach of that duty - Whether damages proven

TORT: Misfeasance - Misfeasance in public office - Accreditation survey of degree programmes offered by higher learning institution - Panel appointed Malaysian Medical Council ('MMC') to evaluate programmes - Panel conducted two surveys and approved three offshore programmes - Offshore programmes converted into local medical degree programmes - Whether there was conversion or absorption - Whether medical degree programmes terminated - Whether discretion properly exercised - Whether there was misfeasance in public office

TORT: Liability - Vicarious liability - Accreditation survey of degree programmes offered by higher learning institution - Panel appointed Malaysian Medical Council ('MMC') to evaluate programmes - Panel conducted two surveys and approved three offshore programmes - Offshore programmes converted into local medical degree programmes - Whether there was conversion or absorption - Whether medical degree programmes terminated - Whether discretion properly exercised - Whether MMC vicariously liable for acts of panel member - Whether panel member agent of MMC 


APPEAL UPDATES  
  1. Leong Yeu Moi (F) v. Neo Ai Si (F) [2019] 1 LNS 1415 (CA) overruling the High Court case of Leong Yeu Moi (F) v. Neo Ai Si (F) [2018] 1 LNS 449

  2. Sri Mahanum Yup v. Wakil Diri Kepada Harta Pusaka Raden Benni RS Tanuwidjaja & Anor [2019] 1 LNS 554 (CA) overruling the High Court case of Wakil Diri Kepada Harta Pusaka Raden Benni RS Tanuwidjaja, Si Mati & Anor v. Sri Mahanum Yup [2018] 1 LNS 822

LATEST CASES

Legal Network Series

[2017] 1 LNS 1733

KERAJAAN MALAYSIA lwn. ASTON VILLA SDN BHD

PROSEDUR SIVIL: Penghakiman terus - Isu-isu untuk dibicarakan - Cukai pendapatan - Ketua Pengarah Lembaga Hasil gagal merujuk rayuan defendan kepada Pesuruhjaya Khas Cukai Pendapatan dalam tempoh yang ditetapkan - Sama ada prejudis terhadap defendan ekoran kelewatan membuat rujukan merupakan isu untuk dibicarakan - Sama ada kesan kegagalan membuat rujukan dalam tempoh masa yang ditetapkan merupakan isu untuk dibicarakan

UNDANG-UNDANG HASIL: Cukai pendapatan - Rayuan - Rujukan rayuan oleh Ketua Pengarah Lembaga Hasil kepada Pesuruhjaya Khas Cukai Pendapatan - Sama ada Ketua Pengarah Lembaga Hasil hendaklah menyemak taksiran dalam tempoh 12 bulan dari tarikh penerimaan notis rayuan - Sama ada peruntukan ss. 101(1) dan 102(1) adalah bersifat mandatori atau direktori

  • Bagi pihak plaintif - Hanani Idris; Jabatan Peguam Negara
  • Bagi pihak defendan - Jacob Rabindranath; T/n Jacob Rabindranath & Co

[2017] 1 LNS 1763

PP lwn. TENGKU SHUKRI CHE ENGKU HASHIM

PROSEDUR JENAYAH: Penghukuman - Prinsip-prinsip - Kesesuaian hukuman - Pengakuan bersalah - Pertuduhan dibawah ss. 130J(1)(a) dan 130J(1)(b) Kanun Keseksaan ('KK') - Pemberian sokongan kepada kumpulan pengganas - Tertuduh hanya memberi komen - Sama ada mahkamah sentiasa meletakkan faktor kepentingan awam dan keseriusan kesalahan sebagai faktor utama mengatasi faktor-faktor lain - Sama ada tertuduh wajar dikenakan hukuman yang sama berat atau lebih dengan kesalahan yang lakukan di bawah s. 130J(1)(a) KK

  • Bagi pihak pendakwaan - Mohd Izhanudin Alias
  • Bagi pihak responden - Mohd Hazrin Alif Wahab; T/n Anuar Yusof & Partners

[2018] 1 LNS 696

R&A TELECOMMUNICATIONS SDN BHD v. JMT KELANTAN BARU SDN BHD & ANOR

CONTRACT: Building contract - Repayment of advance - Claim against subcontractor and principal - Claim premised on letter of settlement and letter of assumption of liability - Whether principal was responsible for repayment of advance - Whether payments were made on an advance basis or for services rendered

CONTRACT: Misrepresentation - False misrepresentation - Whether there was a positive assertion by plaintiff - Whether information was true - Contracts Act 1950, s. 18

  • For the plaintiff - Mak Lin Kum, Mohamed Izzul Faris Mohd Ghani & Rakesh Rishyakaran; M/s Syed Ibrahim & Co
  • For the first defendant - N Murugaiyah; M/s Muru & Partners
  • For the second defendant - James George; M/s James George & Co

[2018] 1 LNS 722

WIRA SWIRE SDN BHD v. KETUA PENGARAH HASIL DALAM NEGERI

ADMINISTRATIVE LAW: Judicial review - Application for leave and stay - Certiorari - Application to quash notices of additional assessments and penalties - Absence of objection by Attorney General Chambers - Putative respondent did not attend court - Whether application ought to be allowed - Whether there was obligation on part of court to postpone or refuse stay application

  • For the applicant - S Saravana Kumar & Toh Pei Roo; M/s Lee Hishammuddin Allen & Gledhill; Attorney General Chambers

[2018] 1 LNS 726

DESA CARGILL SDN BHD v. LO SOO JUNG & ANOR

CIVIL PROCEDURE: Setting aside - Default judgment - Setting aside of irregular judgment - JID entered in respect of declaratory relief without an application - Whether O. 19 r. 7 of Rules of Court 2012 has been contravened - Whether JID could be set aside ex debito justicia

CIVIL PROCEDURE: Setting aside - Default judgment - Application filed by plaintiff to set aside judgment in default ('JID') obtained by a defendant against another defendant - Plaintiff was aggrieved by JID - Whether time starts to run from date JID was properly served on plaintiff - Whether court has power to set aside the JID despite application being out of time - Whether a stranger to action aggrieved by judgment may apply to set aside judgment

CIVIL PROCEDURE: Default judgment - Principles and procedures - Recording judgment in default of defence - Claim concerning declaratory relief - Whether proper and correct rule should be O. 19 r. 2 or O. 19 r. 7(1) & (3) of Rules of Court 2012 - Whether plaintiff was required to apply to court to obtain judgment by notice of application

  • For the plaintiff - Chin Yuen Fong; M/s Chee & Co
  • For the 2nd defendant - Liew Chun Yean; M/s Serena Liew & Associates

CLJ 2020 Volume 2 (Part 2)

Section 21(1) of the Limitation Act 1953 applies to an action for recovery of monies secured by a charge, but not to an action for the sale of its security. The section, hence, does not apply to an application by a chargee to enforce a charge by way of an order for sale under s. 256 or s. 260 of the National Land Code. The non-applicability of s. 21(1) does not however mean that a chargee can take forever to act or enforce a charge. Whilst the statutory defence of limitation cannot be resorted to by the defaulting chargor, he is at liberty to plead equitable defences such as laches and acquiescence, as well as 'cause to the contrary' so provided for by s. 256(3) of the Code.
CIMB Bank Bhd v. Sivadevi Sivalingam [2020] 2 CLJ 151 [FC]

LIMITATION: Period of limitation - Charge of land - Bank granted loan to borrower - Borrower charged land as security for loan - Borrower defaulted in repayment of loan - Bank issued and served notice of default in respect of charge - Borrower failed to remedy breach of charge - Bank sought order for sale of land by way of public auction - Whether foreclosure proceedings or order for sale time-barred - Whether proceedings commenced by bank for sale of land pursuant to ss. 256 or 260 of National Land Code subject to s. 21(1) or (2) of Limitation Act 1953 - Whether right of action to receive money accrued - Whether limitation period begins to run following failure to make payment of loan instalments or upon failure to comply with statutory demand in Form 16D

 

AHMAD MAAROP PCA
RAMLY ALI FCJ
ALIZATUL KHAIR OSMAN FCJ
ROHANA YUSUF FCJ
MOHD ZAWAWI SALLEH FCJ

  • For the appellant - Jeyanthini Kannaperan, Aarthi Jeyarajah & Pauline Koh; M/s Shearn Delamore & Co
  • For the respondent - KS Pang & CK Yap; M/s KS Pang & Co

The only person who satisfies the threshold requirement and has the right to appeal against a decision made in a committal proceeding is the contemnor himself. It follows that a litigant does not have an independent right to appeal against the decision to commit his counsel for contempt. Such an appeal falls outside the ambit of s. 67 Courts of Judicature Act 1964 and cannot be entertained by the court.
Abdul Samad Mohd Embong & Ors v. Pantai Bayu Indah Sdn Bhd & Ors [2020] 2 CLJ 180 [CA]

CIVIL PROCEDURE: Contempt of court - Committal order - Appeal against - Appeal against decision to commit appellants' counsel (contemnor) - Contemnor himself did not file appeal against committal order and period for doing so lapsed - Whether contemnor allowed to be added as appellant in appeal - Contempt applications made against contemnor personally - Whether null and void - Whether mode of application for contempt of court adopted by applicants correct - Right to appeal - Whether only party affected by order or judgment made had right to appeal - Whether appellants parties to committal proceedings - Whether appellants had independent right to lodge appeal against decision to commit contemnor for contempt of court - Whether appellants had locus standi to appeal - Whether appeal outside purview of s. 67 of Courts of Judicature Act 1964

CIVIL PROCEDURE: Committal proceedings - Right to appeal - Appeal against decision to commit appellants' counsel (contemnor) - Contemnor himself did not file appeal against committal order and period for doing so lapsed - Whether contemnor allowed to be added as appellant in appeal - Contempt applications made against contemnor personally - Whether null and void - Whether mode of application for contempt of court adopted by applicants correct - Whether only party affected by order or judgment made had right to appeal - Whether appellants parties to committal proceedings - Whether appellants had independent right to lodge appeal against decision to commit contemnor for contempt of court - Whether appellants had locus standi to appeal - Whether appeal outside purview of s. 67 of Courts of Judicature Act 1964

 

ABDUL RAHMAN SEBLI JCA
KAMARDIN HASHIM JCA
MOHAMAD ZABIDIN MOHD DIAH JCA

  • For the appellants - Arthur Lee, Dominic Ng Kim Ho, Voon Lee Shan & Tiong Ing Neng; M/s Dominique Ng & Assocs
  • For the 1st respondent - Mekanda Singh Sandhu; M/s Sandhu & Co Advocs
  • For the 2nd & 3rd respondents - JC Fong; SLC, Mohd Adzrul Adzlan & Mohamad Muhaimin Zakaria; SLO, Sarawak

The court can award damages and order its assessment only when it is specifically pleaded; there must be a specific prayer asking for damages, otherwise the court is not seized with the necessary jurisdiction to order damages or an assessment thereof.
Bukit Melita Sdn Bhd v. Revolusi Rancak Sdn Bhd [2020] 2 CLJ 199 [CA]

CIVIL PROCEDURE: Pleadings - Relief not pleaded - Damages - Prayer for damages abandoned - Whether High Court had power to award damages even though prayer for damages abandoned - Whether High Court seized with jurisdiction to order assessment of damages - Whether order on assessment of damages valid - Specific Relief Act 1950, s. 18

 

DAVID WONG DAK WAH JCA
ABANG ISKANDAR JCA
MARY LIM JCA

  • N/A

A purchaser of land who has paid a deposit for the purchase and showed a willingness to complete the sale and has further acted in good faith vis-a-vis the sale and purchase agreement, but was wrongly prevented by the vendor from completing the sale within the stipulated period, may still be entitled to specific performance of the contract. More so when the vendor has not given any notice to terminate the agreement or has acted as if the parties were contemplating the completion of the agreement. The vendor, by the latter act, may indeed have waived his right to terminate the agreement despite the fundamental breach of the term by the purchaser.
Kuchai Estates Sdn Bhd & Ors v. Prestige Alloy Sdn Bhd [2020] 2 CLJ 212 [CA]

CONTRACT: Sale and purchase agreement - Specific performance - Dispute over purchase price and actual size of land - Whether purchaser acted in good faith in pursuance of sale and purchase agreement - Whether purchaser ready, able and willing to complete sale and purchase agreement - Whether vendor encumbered land with lienholder's caveat preventing purchaser from making balance purchase price - Whether there was a situation of fraud to justify lifting of corporate veil of vendor company - Whether vendor waived its rights to terminate sale and purchase agreement for fundamental breach of terms - Whether specific performance ought to be allowed

CONTRACT: Sale and purchase agreement - Termination - Counterclaim for termination of agreement - Failure of purchaser paying balance purchase price - Dispute over purchase price and actual size of land - Whether purchaser acted in good faith in pursuance of sale and purchase agreement - Whether purchaser ready, able and willing to complete sale and purchase agreement - Whether vendor encumbered land with lienholder's caveat preventing purchaser from making balance purchase price - Whether there was a situation of fraud to justify lifting of corporate veil of vendor company - Whether vendor waived its rights to terminate sale and purchase agreement for fundamental breach of terms - Whether vendor entitled to terminate sale and purchase agreement

 

DAVID WONG DAK WAH JCA
HAMID SULTAN ABU BACKER JCA
UMI KALTHUM ABDUL MAJID JCA

  • For the appellant - SK Sivam; M/s PG Lim & Co
  • For the respondent - Jason Chan Wa Chiang & Ashwin Kumar; M/s S Mathews & Assocs

Sabitan terhadap sesuatu pertuduhan yang dipengaruhi oleh keterangan kawad cam tidak boleh dianggap selamat jika kualiti pengecaman adalah lemah. Dalam suatu kes rompakan bersenjata di mana kejadian berlaku hanya beberapa minit, berlaku di dalam kedai pada jam 6.30 ptg dengan tertuduh di waktu itu memakai topi keledar dengan 'full face visor' bercermin gelap, dan kawad cam pula hanya diadakan lebih dua bulan kemudian, maka saksi -saksi kawad cam perlu menjelaskan bagaimana mereka boleh mengecam tertuduh, atau atas asas apakah pengecaman dapat dibuat oleh mereka. Tanpa penjelasan sedemikian, pengecaman boleh dicemari oleh keraguan dan ketidakpastian, dan boleh mendedahkan proses pengecaman kepada kesilapan identiti.
Mohd Nazaruddin Khairudin lwn. PP [2020] 2 CLJ 244 [CA]

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KETERANGAN: Kawad cam - Pengecaman - Tertuduh dituduh melepaskan tembakan daripada senjata api semasa melakukan rompakan dengan niat menyebabkan kecederaan - Tertuduh dicamkan oleh mangsa melalui kawad cam - Faktor-faktor yang dipertimbangkan - Sama ada tempoh masa antara tarikh kejadian dengan tarikh kawad cam dekat - Sama ada saksi berpeluang memerhati tertuduh - Sama ada kawasan persekitaran kondusif untuk menghasilkan kualiti pengecaman yang baik - Sama ada terdapat kemungkinan kesilapan identiti - Sama ada keterangan kawad cam boleh diterima - Akta Senjata Api (Penalti Lebih Berat) 1971, s. 3

PROSEDUR JENAYAH: Rayuan - Rayuan terhadap sabitan dan hukuman - Tertuduh disabitkan atas kesalahan melepaskan tembakan daripada senjata api semasa melakukan rompakan dengan niat menyebabkan kecederaan - Sabitan berdasarkan kawad cam oleh mangsa rompakan - Sama ada kualiti kawad cam baik dan boleh dipercayai - Sama ada kawad cam boleh dijadikan sandaran - Tertuduh dijatuhkan hukuman mati - Sama ada sabitan dan hukuman selamat - Akta Senjata Api (Penalti Lebih Berat) 1971, s. 3

UNDANG-UNDANG JENAYAH: Akta Senjata Api (Penalti Lebih Berat) 1971 - Seksyen 3 - Melepaskan tembakan daripada senjata api semasa melakukan rompakan dengan niat menyebabkan kecederaan - Tertuduh disabitkan atas kesalahan dan dijatuhkan hukuman mati - Rayuan terhadap sabitan dan hukuman

AHMADI ASNAWI HMR
ABDUL RAHMAN SEBLI HMR
KAMARDIN HASHIM HMR

  • Bagi pihak perayu - Arik Zakri; T/n The Chambers of Arik And Kamal
  • Bagi pihak responden - Mohamed Faizal Mohamed Fedder, Hamdan Hamzah; TPR

An action premised upon a claim for copyright infringement in respect of a work which is the subject matter of a design registered under the Industrial Designs Act 1996 cannot be maintained in light of s. 7(5) of the Copyright Act 1987; there is no dual protection under copyright and design law.
Alustil Sdn Bhd v. Vitally Sdn Bhd [2020] 2 CLJ 257 [HC]

INTELLECTUAL PROPERTY: Copyright - Infringement - Claim for copyright in respect of work which is subject matter of registered industrial design - Whether s. 7(5) of Copyright Act 1987 excludes copyright protection in any design registered under any written law relating to industrial design - Whether plaintiff could claim dual protection under design and copyright law - Whether claim for copyright infringement ought to be dismissed

 

WONG CHEE LIN J

  • For the plaintiff - Najihah Rozlan & Timothy Joseph; M/s Miranda & Samuel
  • For the defendant - Cassandra Chung Li Hooi, Choon Hon Leng & Leong Ooi Ling; M/s Raja, Darryl & Loh

In a forfeiture action instituted by the Public Prosecutor against a society pursuant to the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001, the failure to name the public officer of the society in the suit as mandatorily required by s. 9(c) of the Societies Act 1966 is not fatal, and will not justify the striking out of the entire proceeding, provided that the registered society and the subject property have been accurately identified. The court, in such circumstance, may give leave to the PP to file an amended motion to adhere to the said s. 9(c).
UMNO Bahagian Pekan v. PP [2020] 2 CLJ 272 [HC]

CIVIL PROCEDURE: Striking out - Application for - Application to strike out forfeiture action - Applicability of s. 9(c) of the Societies Act 1966 - Whether forfeiture application violated s. 9(c) of the Societies Act 1966 - Failure to name society's public officer or office bearers in suit - Whether failure to do so justified striking out the entire forfeiture action - Whether there was prejudice or miscarriage of justice - Whether affidavits filed in support of forfeiture action scandalous, irrelevant or otherwise oppressive - Whether applicant succeeded in establishing case to have forfeiture action struck out under O. 18 r. 19 of Rules of Court 2012

 

MOHD NAZLAN GHAZALI J

  • For the applicant - M Reza Hassan, Amalin Mohd Zahid & Ezuain Farhana Ahmad; M/s Raja Riza & Assocs
  • For the respondent - Allan Suman Pillai & Maziah Mohaide; DPP

CLJ 2020 Volume 2 (Part 3)

The underlying principles that are applicable to an application to strike out a claim or pleading under O. 18 r. 19 of the Rules of Court 2012 do not make any distinction between the nature and character of a contract, ie. whether it is oral or written. What is required is that a cause of action must be clearly pleaded and pleaded in accordance with the rules of pleading. Causes and defences which raise pleas and matters of fact necessitating a resolution and determination based on evidence and principles of law do certainly require a trial.
Accolade Land Sdn Bhd v. Mass Rapid Transit Corporation Sdn Bhd & Ors [2020] 2 CLJ 295 [CA]

CIVIL PROCEDURE: Striking out - Appeal - Appeal against striking out of claim - Oral contract - Lands planned to be developed compulsorily acquired for Mass Rapid Transport ('MRT') project - Developer withdrew objection to land acquisition after relying on representations that MRT line would be advantageous to development - Parties entered into oral contract - MRT line re-aligned bypassing developer's developments, lands and acquired lands - Developer suffered losses and commenced action based on breach of contract - Whether claim raised require resolution and determination - Whether causes of action sufficiently particularised - Whether plainly and obviously unsustainable case fit and proper to be struck out - Rules of Court 2012, O. 18 r. 19(1)(a), (b) & (d)

 

ABDUL RAHMAN SEBLI FCJ
HASNAH MOHAMMED HASHIM FCJ
MARY LIM JCA

  • For the appellant - Malik Imtiaz Sarwar & Foo Joon Liang, Lee Xin Div & Khoo Suk Chyi; M/s Gan Partnership
  • For the 1st respondent - Steven Thiru & Gregory Das; M/s Steven Thiru & Sudhar Partnership

An originating summons in which the plaintiff is mounting an oppression claim under s. 346 of the Companies Act 2016 would sufficiently meet the requirements of O. 7 r. 3(1) of the Rules of Court 2012 if it states in concise fashion the relief or remedy claimed and identifies with sufficient clarity the cause or causes of action; it is sufficient for the full particulars thereof to be provided in the affidavits accompanying the summons.
Looh Ah Chuang & Anor v. Soo Ker Sik & Ors [2020] 2 CLJ 308 [CA]

CIVIL PROCEDURE: Originating summons - Oppression suit - Whether appellant conducted affairs of company in manner oppressive or unfairly prejudicing interests of plaintiff - Appellant signed several cheque transactions from company to another company to fulfil agreement for payment of debt - Whether plaintiff was director of company and signatory of agreement and agreed to stand as guarantor for debt - Whether plaintiff author of his own oppression - Whether appellant became director and shareholder of company with sanction of plaintiff and board of directors - Whether allegations against appellants refuted credibly with contemporaneous documents - Whether plaintiff's originating summons disclosed cause of action - Whether there was delay on plaintiff's part in filing suit - Companies Act 2016, s. 346 - Rules of Court 2012, O. 7 r. 3(1)

 

BADARIAH SAHAMID JCA
HARMINDAR SINGH DHALIWAL JCA
NOR BEE ARIFFIN JCA

  • For the appellants - Elson Beh; M/s YC Wong
  • For the 1st respondent - Chong Tze Yan & Jonathan Toh; M/s Khor, Ong & Co

The act of the caretaker accused in putting a chilli into the mouth of a two-year-old child thereby causing the child to choke to death is a very serious form of abuse, and any remorse shown for such misdeed cannot per se justify a short sentence of imprisonment. Hence, an 18-month imprisonment sentence so passed by the High Court for the offence under s. 31(1) of the Child Act 2001 is obviously inadequate and should be substituted with imprisonment for a term of 10 years.
PP v. Asmarani Ghazali [2020] 2 CLJ 319 [CA]

CRIMINAL PROCEDURE: Sentence - Appeal against sentence - Offence of child abuse - Causing death of child - Plea of guilty - Whether sentence of 18 months imprisonment manifestly inadequate - Causing child to choke to death by putting chilli inside child's mouth - Whether deliberate act - Whether act of showing chilli to child before putting into child's mouth was to create fear - Whether form of abuse - Whether remorse shown by accused justified sentence of 18 months imprisonment - Whether sentence ought to reflect gravity of offence - Whether sentence ought to be substituted - Child Act 2001, s. 31(1)(a)

 

YAACOB MD SAM JCA
ZABARIAH MOHD YUSOF JCA
RAVINTHRAN PARAMAGURU JCA

  • For the appellant - Mohd Zain Ibrahim; DPP
  • For the respondent - Hanif Hassan; M/s Hanif Hassan & Co

Contingent contracts are dependent on the occurrence of a contingent event agreed by the parties and such contract is not performed or due for performance unless the contingent event has materialised. It follows that if a contract stipulates that a party may terminate the contract in the event the contingent event does not materialise, then the contract may lawfully be terminated if the contingent event did actually not materialise.
Summit Domain Sdn Bhd & Anor v. Carillon Sdn Bhd [2020] 2 CLJ 329 [CA]

CONTRACT: Contingent contract - Sale and purchase agreement - Conditional sale and purchase agreement for sale of land - Sale of land conditional upon receipt of final decision of court concerning ownership of land - Agreement contained clause stipulating conditional period - Purchaser opted to terminate agreement as there was no final decision of court - Whether termination of agreement lawful and valid - Whether pending appeals concerning land rendered termination of agreement lawful - Whether agreement between parties contingent contract - Whether contingent contract fulfilled - Whether contract performed - Whether dependent on condition of receipt of final decision of court - Contracts Act 1950, ss. 32, 33 & 47

CONTRACT: Termination - Validity - Sale and purchase agreement - Sale of land conditional upon receipt of final decision of court concerning ownership of land - Purchaser opted to terminate agreement upon expiry of conditional period as there was no final decision of court - Whether termination of agreement valid - Whether there were pending appeals concerning land - Whether agreement between parties contingent contract - Whether dependent on condition of receipt of final decision of court - Whether termination of agreement valid - Whether specific performance of contract ought to be ordered - Contracts Act 1950, ss. 32, 33 & 47

 

ABANG ISKANDAR JCA
BADARIAH SAHAMID JCA
HARMINDAR SINGH DHALIWAL JCA

  • For the appellants - Cyrus V Das, Richard WG Lee, Shiyamala Devi Manokaran & Michelle Wong Sook King; M/s Jeff Leong, Poon & Wong
  • For the respondent - Wong Kim Fatt, Vasanthan & Wong Boon Chong; M/s Julie Lim, Vasanthan & Co

Section 52 of the Malaysian Qualifications Agency Act 2007 concerns the standard of higher education establishments generally, and specifically in the case of the Malaysian Medical Council (MMC), the standards of medical care, and it was for this purpose that the section confers on MMC discretionary powers to assess and evaluate prospective applications for accreditation. Since the section also accrues for the benefit of higher education establishments that propose to offer degree programmes such as the plaintiff, the plaintiff therefore has a right for its application for accreditation to be considered fairly, and in accordance with a rational set of principles applied consistently with all applications for accreditations.
Asia Pacific Higher Learning Sdn Bhd v. Majlis Perubatan Malaysia & Anor [2020] 2 CLJ 346 [HC]

TORT: Negligence - Statutory duty - Breach of - Accreditation survey of degree programmes offered by higher learning institution - Panel appointed Malaysian Medical Council ('MMC') to evaluate programmes - Panel conducted two surveys and approved three offshore programmes - Offshore programmes converted into local medical degree programmes - Whether there was conversion or absorption - Whether medical degree programmes terminated - Whether discretion properly exercised - Whether panel adhered to accreditation guidelines - Whether there was duty of care owed by MMC to claimant - Whether there was breach of that duty - Whether damages proven

TORT: Misfeasance - Misfeasance in public office - Accreditation survey of degree programmes offered by higher learning institution - Panel appointed Malaysian Medical Council ('MMC') to evaluate programmes - Panel conducted two surveys and approved three offshore programmes - Offshore programmes converted into local medical degree programmes - Whether there was conversion or absorption - Whether medical degree programmes terminated - Whether discretion properly exercised - Whether there was misfeasance in public office

TORT: Liability - Vicarious liability - Accreditation survey of degree programmes offered by higher learning institution - Panel appointed Malaysian Medical Council ('MMC') to evaluate programmes - Panel conducted two surveys and approved three offshore programmes - Offshore programmes converted into local medical degree programmes - Whether there was conversion or absorption - Whether medical degree programmes terminated - Whether discretion properly exercised - Whether MMC vicariously liable for acts of panel member - Whether panel member agent of MMC

 

AZIZUL AZMI ADNAN J

  • For the plaintiff - Gerard Lourdesamy & A Devi; M/s Gerard Samuel & Assocs
  • For the defendants - Wan Hafarizam, Nor Emelia Mohd Iszeham & Nuraisha Alia; M/s Hafarizam Wan & Aisha Mubarak

A direction to proceed with the auction of land made by the court after the rights and liabilities of the parties thereto has been determined during an earlier foreclosure proceeding cannot be said to have finally disposed of the rights of parties, or made in the course of a trial or hearing or cause or matter; such direction is thus not appealable in law.
Bank Pertanian Malaysia Bhd v. Maple Amalgamated Sdn Bhd (In Liquidation) [2020] 2 CLJ 384 [HC]

CIVIL PROCEDURE: Judgments and orders - Direction - Foreclosure proceedings - Auction of land - Deputy Registrar of High Court gave direction and fixed auction date of land - Whether direction 'judgment', 'order' or 'decision' - Whether direction 'decision' defined under s. 3 of Courts of Judicature Act 1964 - Whether appealable - Whether direction finally disposed of rights of parties - Whether direction made in course of trial, hearing or any cause or matter - Whether Arahan Amalan Pendaftar Mahkamah Tinggi Malaya Bil 1 Tahun 2017 applicable - Whether non-compliance to practice direction would cause prejudice or would result in any substantial miscarriage of justice

 

HASHIM HAMZAH J

  • For the plaintiff - Ratha Govindasamy; M/s Skrine
  • For the defendant - Ravenesan Sivanesan; M/s S Ravenesan

The court has no jurisdiction to entertain an application to cancel a Registrar's caveat if the procedure prescribed by ss. 321 and 418 of the National Land Code has not been complied with. Even when there was due compliance with the two sections, the application shall still fail if it is imprecise or nebulous, or if it is shown that the applicants had obtained the caveated land by way of fraud, or if the caveat is legally justified.
Pembangunan Tanah Dan Perumahan Sdn Bhd v. Pengarah Tanah Dan Galian Negeri Johor & Anor [2020] 2 CLJ 399 [HC]

LAND LAW: Caveat - Removal of - Application for - Caveats entered by Registrar to preserve lots of land pending investigations on forgery - Whether applicant adopted correct method in seeking to remove Registrar's caveats - Whether applicant ignorant of facts and status of land - Whether application imprecise and nebulous - Whether Registrar's caveats entered ultra vires - Registrar entered caveats on request of Police Diraja Malaysia - Whether caveats justified or ought to be cancelled - National Land Code, ss. 320(1)(a), 321 & 418

 

EVROL MARIETTE PETERS JC

  • For the plaintiff - Hafez Zalkapli; M/s Mohd Amin, Ng & Assocs
  • For the defendants - Mohd Khairi Mohamed Said; State Legal Advisor

Under O. 53 of the Rules of Court 2012, an application for judicial review is dealt with at two stages; the leave stage and then upon leave being granted, the substantive stage. At the leave stage, the parties entitled as of right to appear will be the applicant and the Attorney General as guardian of public interest. Service to a putative respondent will however be an exception, and will be effected only if the court so orders. This said, the fact that a putative respondent is allowed to appear or make a submission does not ipso facto change the character of the ex parte hearing, or obviate in any way the substantive stage.
Sime Darby Plantation Bhd v. Pengarah Tanah Dan Galian Negeri Melaka & Ors [2020] 2 CLJ 409 [HC]

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ADMINISTRATIVE LAW: Judicial review - Application for leave - Land acquisition purportedly for public purpose - Whether initiated on behalf of foreign-controlled property investment company - Whether acquisition process would cause irreparable damage and irremediable injury to applicant - Whether application for leave within mandatory time limit under O. 53 r. 3(6) of Rules of Court 2012 - Whether there were real, substantive and serious issues to be argued at substantive stage - Whether decision amenable to judicial review

CIVIL PROCEDURE: Stay of proceedings - Special circumstances - Land acquisition purportedly for public purpose - Whether initiated on behalf foreign-controlled property investment company - Application for leave for court's intervention to review administrative decision - Whether all proceedings ought to be stayed pending final disposal of judicial review application - Whether acquisition process would cause irreparable damage and irremediable injury to applicant - Whether there were special circumstances to warrant granting of stay

AHMAD NASFY YASIN J

  • For the applicant - Rosli Dahlan & Dayang Najwa; M/s Lee Hishammuddin Allen & Gledhill
  • For the 1st to 3rd respondents - State Legal Advisor, Melaka
  • For the 4th respondent - David Mathew & David Ng Yew Kiat; M/s Steven Thiru & Sudhar

ARTICLES

CLJ Article(s)

  1. Is Section 98 Criminal Procedure Code Meant for Preventing Gatherings, Assemblies And Conferences? [Read excerpt]
    by Tun Abdul Hamid Mohamad* [2020] 2 CLJ(A) i

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

    Is Section 98 Criminal Procedure Code Meant for Preventing Gatherings, Assemblies And Conferences?

    by
    Tun Abdul Hamid Mohamad*

    (This article is meant, particularly, for senior police officers, lawyers, legal and judicial officers, the Attorney General and judges. I welcome arguments to the contrary.)

    I am writing this article based on the following three cases involving s. 98 of the Criminal Procedure Code ('CPC'). The cases are:

    (i) Datuk Seri Anwar bin Ibrahim v. Pendakwa Raya Case Analysis [2009] 1 LNS 1035 High Court (Kuala Lumpur), Zainal Azman JC;

    (ii) Badrul Hisham v. Public Prosecutor and Another Appeal [2014] 1 LNS 1939 (CA), Linton Albert (JCA), David Wong Dak Wah (JCA) and Zakaria Sam (JCA).

    (iii) Polis DiRaja Malaysia v. Persekutuan Persatuan-Persatuan Lembaga Pengurus Sekolah Cina Malaysia (Dong Zong), (Permohonan Jenayah BH-89-219-12-2019 Dalam Mahkamah Majistret di Kajang, Selangor DE).[1]

    It appears that, in the last decade, the police have been resorting to the section to obtain the order of the Magistrate's Court to stop a gathering in the Parliament yard (Anwar's case), to prohibit any assembly at Dataran Merdeka (Badrul's case) and to prevent the holding of a conference (Dong Zhong's case).

    . . .

    * (Rtd) Chief Justice Of Malaysia.


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  3. Transforming Legal Education In The Era Of Fourth Industrial Revolution (IR4.0) [Read excerpt]
    by Puteri Sofia Amirnuddin* Ashgar Ali Ali Mohamed** Muhamad Hassan Ahmad*** [2020] 2 CLJ(A) ix

  4. [2020] 2 CLJ(A) ix
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    MALAYSIA

    Transforming Legal Education In The Era Of Fourth Industrial Revolution (IR4.0)

    by
    Puteri Sofia Amirnuddin*
    Ashgar Ali Ali Mohamed**
    Muhamad Hassan Ahmad***

    Abstract

    The recent technological advances trigger the emergence of the Fourth Industry Revolution (IR4.0) which is very dynamic and progressive to the extent most of the major industries in the world have no option left but to transform the industry accordingly in order to adapt to the changes in the IR4.0 era. Hence, this article aims at exploring how the legal education offered at higher learning institutes can be transformed to be in line with the IR4.0 in an efficient manner but without compromising the quality. Tertiary education system should catch up with this progress to ensure that modern legal education would be fully modified and concurrent with it. Currently, there is a significant delay in transforming legal educational services offered at universities, colleges and other higher learning institutes with regard to fields of study, subjects offered, teaching and assessment methods, among others. Despite the fact that it is complex, for the time being, to transform the legal education to be in line with the IR4.0, it will benefit the society unprecedentedly for a long run as it is the 'game changer' of this era.

    . . .

    * Faculty of Business and Law, Taylor's University

    ** Ahmad Ibrahim Kulliyyah of Laws, International Islamic University Malaysia

    *** Ahmad Ibrahim Kulliyyah of Laws, International Islamic University Malaysia


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LNS Article(s)

  1. THE CORONAVIRUS EPIDEMIC: DOES IT COUNT AS FORCE MAJEURE?* [Read excerpt]
    by Crystal Wong Wai Chin** Soh Zhen Ning*** [2020] 1 LNS(A) xiii

  2. [2020] 1 LNS(A) xiii
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    MALAYSIA

    THE CORONAVIRUS EPIDEMIC: DOES IT COUNT AS FORCE MAJEURE?*

    by
    Crystal Wong Wai Chin**
    Soh Zhen Ning***

    The novel coronavirus outbreak in China has rattled international trade and caused severe disruptions to the global supply chains. On 30 January 2020, the World Health Organization declared that the epidemic constituted a public health emergency of international concern.[1] During this critical period, companies may face various difficulties in fulfilling their existing contractual obligations, due to disruptions caused by the suspension of business operations and trade restrictions across the world.

    Force majeure clauses, which are often (and mistakenly) overlooked as “standard boilerplate” in commercial contracts, are likely to be brought into sharp focus over the coming weeks and months. Recently, we have been engaged in several important discussions with clients on the pressing question of whether the coronavirus epidemic falls within the operation of a force majeure clause so as to delay or absolve their liabilities.

    . . .

    *This article is reproduced from LHAG Update (11 February 2020) with kind permission of Lee Hishammuddin Allen & Gledhill, Advocates & Solicitors, Kuala Lumpur, Malaysia.

    **Partner, Energy, Infrastructure & Projects and International Arbitration Practice

    ***Pupil-in-Chambers


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  3. KEDUDUKAN VOYEURISME MENURUT UNDANG-UNDANG JENAYAH DI MALAYSIA [Read excerpt]
    oleh Ramalinggam Rajamanickam* Anusha Asokakumar** [2020] 1 LNS(A) xii

  4. [2020] 1 LNS(A) xii
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    MALAYSIA

    KEDUDUKAN VOYEURISME MENURUT UNDANG-UNDANG JENAYAH DI MALAYSIA

    oleh
    Ramalinggam Rajamanickam*
    Anusha Asokakumar**

    1. PENGENALAN

    Pada era pascakemerdekaan ini, teknologi maklumat dan komunikasi (ICT) merupakan agenda baharu yang begitu diberikan perhatian. Kerajaan telah mengambil pelbagai langkah yang serius untuk menerapkan budaya ICT dalam masyarakat. Memang tidak dapat dinafikan bahawa bidang ICT mempunyai manfaat serta faedah yang sangat besar kepada masyarakat dan negara ini. Namun demikian, wujud juga pelbagai keburukan hasil perkembangan bidang ICT. Antara isu yang paling merisaukan ialah isu voyeurisme dalam kalangan masyarakat yang semakin menjadi-jadi bagai “cendawan tumbuh selepas hujan.”

    Secara umumnya, seseorang pelaku voyeurisme boleh didefinisikan sebagai “seorang yang mendapat kepuasan seksual apabila mengintip atau mengintai orang lain yang sedang melakukan aktiviti bersifat peribadi.

    . . .

    * Profesor Madya (PhD), Fakulti Undang-Undang, Universiti Kebangsaan Malaysia (UKM). E-mel: rama@ukm.edu.my

    ** Pelajar Prasiswazah, Fakulti Undang-Undang, Universiti Kebangsaan Malaysia (UKM). E-mel: jaimadhusudhana@gmail.com


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  5. DESERVING OF RIGHTS LEGAL PERSONHOOD AND ANIMAL LAW* [Read excerpt]
    by MIKE ROSALKY** [2020] 1 LNS(A) xi

  6. [2020] 1 LNS(A) xi
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    AUSTRALIA

    DESERVING OF RIGHTS LEGAL PERSONHOOD AND ANIMAL LAW*

    by
    MIKE ROSALKY**

    On 16 May 2019, volunteer lawyers from the Animal Defenders Office, an animal law community legal centre, presented a seminar on animals and legal personhood as part of Law Week. In this article, Mike Rosalky of the ADO considers the legal treatment of Australian animals and explains why some lawyers are advocating for courts to grant legal personhood to animals.

    On 16 May 2019, the ACT Government introduced the Animal Welfare Legislation Amendment Bill 2019 into the Legislative Assembly.[1] The Bill proposes a raft of changes to the Animal Welfare Act 1992 (ACT).

    The changes are aimed at advancing the interests of animals by creating new animal abuse and neglect offences.

    . . .

    * Published with kind permission of the Law Society of the Australian Capital Territory. See Ethos No. 253 Spring 2019.

    ** Animal Defenders Office and K & R Animal Law.


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LEGISLATION HIGHLIGHTS

Principal Acts

Number Title In force from Repealing
ACT 826 Food Donors Protection Act 2020 Not Yet In Force -
ACT 825 Anti-Fake News (Repeal) Act 2020 31 January 2020 -
ACT 824 Malaysian Health Promotion Board (Dissolution) Act 2019 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] -

Amending Acts

Number Title In force from Principal/Amending Act No
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
ACT A1612 Copyright (Amendment) Act 2020 Not Yet In Force ACT 332
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

PU(A)

Number Title Date of Publication In force from Principal/ Amending Act No
PU(A) 26/2020 Price Control and Anti-Profiteering (Determination of Maximum Retail Price for Petrol and Diesel) (No. 4) Order 2020 24 January 2020 25 January 2020 ACT 723
PU(A) 25/2020 Federal Roads (West Malaysia) (Amendment) Order 2020 24 January 2020 28 January 2020 PU(A) 401/1989
PU(A) 24/2020 Loans Guarantee (Bodies Corporate) (Remission of Tax and Stamp Duty) Order 2020 22 January 2020 23 January 2020 ACT 96
PU(A) 23/2020 Road Traffic (Prohibition onDriving of Goods Vehicles) Rules 2020 22 January 2020 23 January 2020 ACT 333
PU(A) 22/2020 Customs (Anti-Dumping Duties) Order 2020 21 January 2020 22 January 2020 to 21 January 2025 ACT 504; ACT 235

PU(B)

Number Title Date of Publication In force from Principal/ Amending Act No
PU(B) 22/2020 Notification of Application for Registration of New Plant Variety and Grant of Breeder's Right - Dekarlisa 15 January 2020 16 January 2020 ACT 634
PU(B) 21/2020 Appointment of Deputy Public Prosecutor 15 January 2020 16 January 2020 ACT 593
PU(B) 20/2020 Notification of Application for Registration of New Plant Variety and Grant of Breeder's Right - Negara Taman 15 January 2020 16 January 2020 ACT 634
PU(B) 19/2020 Notification of Application for Registration of New Plant Variety and Grant of Breeder's Right - DLFYIN1 15 January 2020 16 January 2020 ACT 634
PU(B) 17/2020 Appointment and Revocation of Appointment of Member and Alternate Member of the Authority 14 January 2020 15 January 2020 ACT 231

Legislation Alert

Updated

Act/Principal No. Title Amended by In force from Section amended
ACT 445 Labuan Business Activity Tax Act 1990 ACT A1614 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 Sections 2, 2B, 3B, 4, 6, 6A, 6B, 6C, 6D, 9, 13A, 17C, 17D, 22B, 22C, 22D, 22E, 22F, 23, 24 and 27
AKTA 445 Akta Cukai Aktiviti Perniagaan Labuan 1990 AKTA A1614 10 Februari 2020 - Perenggan 2(a) dan s. 13 and 15; Tahun taksiran 2020 dan tahun-tahun taksiran berikutnya - Perenggan 2(b) dan seksyen 3, 4, 5, 6, 7, 9, 10, 11, 12 dan 14; 1 Januari 2019 - s. 8 Seksyen 2, 2B, 3B, 4, 6, 6A, 6B, 6C, 6D, 9, 13A, 17C, 17D, 22B, 22C, 22D, 22E, 22F, 23, 24 dan 27
PU(A) 154/1977 Excise (Sale By Retail of Intoxicating Liquor By Chemists) Order 1977 PU(A) 410/2019 1 January 2020 Paragraph 2 and Second Schedule
PU(A) 156/1977 Excise (Sale of Intoxicating Liquors) Regulations 1977 PU(A) 409/2019 1 January 2020 Regulation 7A
PU(A) 158/1977 Excise (Bottling and Movement of Intoxicating Liquors) Regulations 1977 PU(A) 408/2019 1 January 2020 Regulations 2, 4 and 5 and Schedule One

Revoked

Act/Principal No. Title Revoked by In force from
PU(A) 359/2019 Excise (Determination of Value of Locally Manufactured Goods For the Purpose of Levying Excise Duty) Regulations 2019 PU(A) 402/2019 1 January 2020
PU(A) 162/1977 Customs Regulations 1977 PU(A) 397/2019 1 January 2020
ACT 803 Anti-Fake News Act 2018 ACT 825 31 January 2020
AKTA 803 Akta Antiberita Tidak Benar 2018 AKTA 825 31 Januari 2020
PU(A) 460/1997 Trade Marks Regulations 1997 PU(A) 373/2019 27 December 2019