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Issue #2/2021
14 January 2021

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New This Week

CASE(S) OF THE WEEK

LEOPAD HOLDINGS SDN BHD v.
ASIAN SHIELD WAREHOUSING SDN BHD & ANOTHER APPEAL
[2021] 1 CLJ 328
COURT OF APPEAL, PUTRAJAYA
AHMADI ASNAWI JCA; AB KARIM AB JALIL JCA; SURAYA OTHMAN JCA
[CIVIL APPEALS NO: B-02(IM)(NCVC)-1977-09-2018 & B-02(IM)(NCVC)-1978-09-2018]
20 DECEMBER 2019

A contributory of a wound up company who is an undischarged bankrupt has the locus to seek the sanction of the Director General of Insolvency for the company to commence an action against a defendant without the need to obtain any prior sanction of the DGI to do so, and in obtaining such sanction, cannot be said to have offended s. 38(1)(d) of the Bankruptcy Act/Insolvency Act 1967 which barred him from 'directly or indirectly taking part in the management of the company'. There is firstly no clear requirement in the 1967 Act or the Companies (Winding-up) Rules 1972 or the Companies Act 2016 that a bankrupt is required to apply for sanction first before he can apply for sanction for the wound up company to commence an action, Secondly, the management of a company upon a winding-up is taken over by the liquidator entirely to the exclusion of the previous management or the Board of Directors who were rendered functus officio. And thirdly, taking s. 38(1)(d) in the context if its setting, the company in which such contributory is said to be directly or indirectly concerned or be taking part in its management, must refer to a going concern or a solvent company, and not a company which has already been wound up.

COMPANY LAW: Liquidation - Company wound up - Undischarged bankrupt - Undischarged bankrupt as concerned contributory sought sanction to enable company to commence civil proceedings - Whether undischarged bankrupt ought to obtain prior sanction of Director General of Insolvency to directly or indirectly take part in management of company in liquidation - Whether entire board of directors ceased and became functus officio once company wound up - Whether entire management and running of wound up company in hands of liquidator - Whether undischarged bankrupt had locus - Whether undischarged bankrupt had competency to apply for sanction - Insolvency Act 1967, s. 38(1)(d) - Companies Act 2016, ss. 2, 486, 492 & 503

COMPANY LAW: Winding up - Liquidation - Concerned contributory - Undischarged bankrupt as concerned contributory sought sanction to enable company to commence civil proceedings - Whether undischarged bankrupt ought to obtain prior sanction of Director General of Insolvency to directly or indirectly take part in management of company in liquidation - Whether entire board of directors ceased and became functus officio once company wound up - Whether entire management and running of wound up company in hands of liquidator - Whether undischarged bankrupt had locus - Whether undischarged bankrupt had competency to apply for sanction - Insolvency Act 1967, s. 38(1)(d) - Companies Act 2016, ss. 2, 486, 492 & 503


MOHD SAIFUDDIN AB RAHMAN v. PP & ANOTHER APPEAL [2021] 1 CLJ 343
COURT OF APPEAL, PUTRAJAYA
KAMALUDIN MD SAID JCA; AZIZAH NAWAWI JCA; NORDIN HASSAN JCA
[CRIMINAL APPEALS NO: W-05(SH)-205-04-2018 & W-05(SH)-214-04-2018]
13 OCTOBER 2020

A judge trying a case of trafficking in dangerous drugs under s. 39B(1) of the Dangerous Drugs Act 1952, upon a proper interpretation of s. 39B(2A) of the Act, and in particular upon satisfying paragraph (d) thereof, may impose the sentence of imprisonment for life and 15 strokes of whipping on the accused instead of a death sentence; bearing in mind the word 'only' before the said paragraphs (a), (b), (c) and (d), the power of the court to impose the alternative sentence is to be exercised only in regard to the circumstances specified therein and not in any other circumstances; and bearing in mind too that paragraphs (a), (b), or (c) of s. 39B(2A) should be read disjunctively to each other but conjunctively with the mandatory requirement of paragraph (d), with the result that the condition in paragraph (d) must first be satisfied before the discretion to impose the sentence of life imprisonment under the section can be invoked. The condition for para (d)'s application is that the convicted person had assisted the enforcement agency in disrupting drug trafficking activities within or outside Malaysia. Here, no evidence was adduced that the appellant had assisted the enforcement agency in disrupting drug trafficking activities within or outside Malaysia and therefore, no certificate by the Public Prosecutor was produced to that effect. Clearly the requirement of s. 39B(2A) DDA had not been fulfilled for the imposition of imprisonment for life and 15 strokes of whipping, and the trial judge was wrong in opting to exercise his discretion under this provision. The sentence is hence replaced with a death sentence.

CRIMINAL PROCEDURE: Appeal - Appeal against conviction and sentence - Accused convicted for offence of drug trafficking - 4,045g cannabis found in carrier basket of motorcycle - Accused sentenced to life imprisonment and 15 strokes of whipping - Whether prosecution proved element of possession of drugs - Whether knowledge of drugs could be inferred - Whether defence probable and adequately considered - Whether investigation complete and proper - Whether conviction and sentence safe - Whether ought to be set aside - Dangerous Drugs Act 1952, ss. 39B(1)(a), 39B(2) & 39B(2A)(c)

CRIMINAL PROCEDURE: Appeal - Appeal against sentence - Appeal by prosecution - Accused convicted for offence of drug trafficking - 4,045g cannabis found in carrier basket of motorcycle - Accused sentenced to life imprisonment and 15 strokes of whipping - Whether trial judge could exercise discretion in sentencing - Whether discretion exercised correctly - Whether accused satisfied requirement under s. 39B(2A) of Dangerous Drugs Act 1952 for trial judge to exercise discretion - Whether accused ought to be sentenced to death


APPEAL UPDATES  
  1. Sinar Mudah Sdn Bhd & Anor v . Ramasamy Muthusamy & Anor [2019] 1 LNS 772 (CA) overruling in part the High Court case of Sinar Mudah Sdn Bhd & Anor v. Ramasamy Muthusamy & Anor [2017] 1 LNS 162

  2. Kumaresan Nadarajan v. PP [2019] 1 LNS 715 (CA) affirming the High Court case of PP v. Kumaresan Nadarajan [Criminal Trial No: 45B-28-06/2015]

LATEST CASES

Legal Network Series

[2018] 1 LNS 1354

AW LEY TENG & SATU LAGI lwn. ASHOK KUMAR VIJAYAN

1. Motorkar defendan yang bergerak dari atas dan ingin membelok ke kiri untuk masuk ke simpang jalan perlu memberi keutamaan laluan kepada kenderaan yang bergerak dari bawah menghala ke atas. Apabila defendan membelok ke kiri jalan dan melanggar plaintif yang mempunyai hak laluan utama, maka defendan adalah bertanggungan cuai 100% dalam kemalangan.

2. Apabila hakim bicara memberikan awad bagi ganti rugi yang melebihi hujahan kedua-dua peguam plaintif dan defendan, maka ganti rugi yang diberikan adalah melampau dan mahkamah rayuan wajar menggantikan awad tersebut kepada satu nilai yang adil dan munasabah.

LALULINTAS JALAN: Kecuaian - Kemalangan jalan raya - Penentuan liabiliti - Perlanggaran antara motorsikal dan motorkar - Motorkar defendan melanggar motorsikal plaintif ketika masuk ke simpang - Sama ada plaintif mempunyai hak laluan utama berbanding defendan - Sama ada motorkar defendan perlu berhenti dan memberi laluan kepada plaintif dan kenderaan-kenderaan lain untuk berlalu terlebih dahulu sebelum membelok - Sama ada defendan telah berlaku cuai ketika membelok untuk masuk ke simpang - Sama ada pemandu motorkar adalah bertanggungan cuai 100% dalam kemalangan

GANTI RUGI: Kuantum - Rayuan - Kecederaan diri - Hakim bicara memberikan awad RM40,000 bagi kecederaan 'Fracture of the right 2nd, 3rd, 4th, 5th, 6th, 7th and 8th ribs with pneumothorax' - Hakim bicara memberikan awad melebihi nilai yang dihujah oleh kedua-dua peguam plaintif dan defendan - Sama ada awad yang diberikan adalah melampau - Sama ada awad RM28,000 adalah adil dan munasabah

GANTI RUGI: Kuantum - Rayuan - Kos pembedahan masa hadapan - Hakim bicara telah menolak 1/3 daripada jumlah keseluruhan kos pembedahan masa hadapan - Sama ada hakim bicara telah mengambil kira pembedahan masa depan yang boleh dibuat di hospital kerajaan yang mana kosnya adalah murah - Sama ada awad yang diberikan adalah melampau

  • Bagi pihak perayu/defendan - KH Chai; T/n Othman Hashim & Co
  • Bagi pihak responden/plaintif - T Balaskanda; T/n Zaman & Associates

[2018] 1 LNS 1538

PP lwn. KHTIKE PHOKRAJAN

1. Warga asing wajib mematuhi dan menghormati undang- undang keras Malaysia mengenai pemilikan dadah. Justeru, kepentingan awam menghendaki hukuman yang lebih berat dijatuhkan ke atas pesalah warga asing yang terlibat dalam kesalahan pemilikan dadah berbahaya.

2. Pengakuan bersalah tertuduh dan rayuan peringanan hukuman perlu diseimbangkan dengan faktor kepentingan awam, berat dadah yang terlibat serta niat parlimen semasa meminda s. 39A(2) Akta Dadah Berbahaya 1952 ('ADB') dalam menentukan hukuman yang setimpal dan wajar bagi kesalahan di bawah s. 12(2) ADB.

PROSEDUR JENAYAH: Hukuman - Peringanan - Penyalahgunaan dadah berbahaya - Pertuduhan di bawah s. 12(2) Akta Dadah Berbahaya 1952 - Pengakuan bersalah pada hari pertama perbicaraan - Pesalah warga asing - Sama ada hukuman yang lebih berat wajar dijatuhkan ke atas warga asing yang tidak menghormati undang-undang keras - Sama ada faktor peringanan tertuduh perlu diseimbangkan dengan faktor kepentingan awam

PROSEDUR JENAYAH: Penghukuman - Keseimbangan hukuman - Pengakuan bersalah - Tertuduh telah mengaku bersalah atas pertuduhan pilihan bagi kesalahan di bawah s. 12(2) Akta Dadah Berbahaya 1952 yang boleh dihukum di bawah s. 39A(2) - Sama ada pengakuan bersalah dan rayuan peringanan hukuman wajar diseimbangkan dengan faktor kepentingan awam, berat dadah yang terlibat serta niat parlimen semasa meminda s. 39A(2)

  • Bagi pihak pendakwaan - TPR How May Lin; Bahagian Pendakwaan
  • Bagi pihak tertuduh - Naran Singh; T/n Naran Singh & Co

[2019] 1 LNS 1139

CONCRETE PARADE SDN BHD v. ACE INVESTMENT BANK LIMITED

The Court has no jurisdiction to grant an injunction under s. 360 of the Capital Markets and Services Act 2007 to restrain the defendant from voting or exercising any rights attached to its shares when the plaintiff has not shown that its legal rights or interests would be adversely affected if the defendant is allowed to exercise its voting rights.

COMPANY LAW: Member's rights - Shareholders - Injunction to restrain propriety right - Application for injunction to restrain shareholder from voting or exercising any rights attached to shares pending compliance with securities commission's directions - Application under s. 360(1) & (2) of Capital Markets and Services Act 2007 ('CMSA') - Whether Court has jurisdiction and power to grant injunction prayed for - Whether plaintiff was an aggrieved person under s. 360 of CMSA - Whether there was legal basis to restrain defendant - Whether defendant was a transient shareholder

  • For the plaintiff - Robert Lazar, Alvin Tang & Khor Heng How; M/s Bodipilar Ponnudurai De Silva
  • For the 1st defendant - Wong Kah Hui & Ong Jian Nee; M/s Kadir, Andri & Partners
  • For the proposed interveners - Mak Ling Kum, R Himahlini, Izzul Faris & Lee Shiow Chi; M/s Himahlini & Loh

[2019] 1 LNS 1140

MOHAMAD FAIZUL JEFFREN v. MSIG INSURANCE (MALAYSIA) BERHAD

Where the insurer had regularly obtained an order before a High Court to declare the insurance policy as void and unenforceable and the third party had been given the right to be heard in the said proceedings, any action commenced by the said third party in another High Court to set aside the regularly obtained order in the previous proceedings amounts to an abuse of court process and such an action ought to be struck out.

CIVIL PROCEDURE: Striking out - Action - Action to set aside another High Court's order obtained by insurer to declare insurance policy void and unenforceable - Setting aside of regularly obtained order - Whether plaintiff could apply to set aside an order of another High Court which was regularly obtained - Whether plaintiff's action was an abuse of court process and ought to be struck out

CIVIL PROCEDURE: Judgment and orders - Setting aside - Action to set aside another High Court's order obtained by insurer to declare insurance policy void and unenforceable - Application filed by third party - Third party's application to intervene in previous proceedings dismissed by High Court and affirmed by Court of Appeal - Whether third party had been given right to be heard in earlier proceeding - Whether order obtained in earlier proceeding was good and valid - Whether plaintiff could apply to set aside an order of another High Court which was regularly obtained

  • For the plaintiff - CY Ong & Sri Wahyurli; M/s Venga & Co
  • For the defendant - Samreet Singh; M/s Lovelace & Hastings

[2019] 1 LNS 1561

MIKAIL TAN ABDULLAH v. PP

Additional statutory declarations and police reports lodged by complainants to retract complaints against the accused on the basis that the earlier reports were lodged as a result of a misunderstanding can be taken into consideration during an appeal. Upon admission of such evidence, the appellate court may exercise its discretion to reverse the finding and sentence of the trial court and acquit or discharge the accused.

CRIMINAL PROCEDURE: Appeal - Appeal against conviction and sentence - Discretion of appellate court - Order to take further evidence - Offence of voluntarily causing hurt - Domestic abuse - Statutory declarations and police reports of complainants stating earlier reports were lodged as a result of misunderstanding tendered during hearing of appeal - Complainant willingly and voluntarily retracting earlier police reports during appeal stage - Whether latest statutory declarations and police report ought to be allowed - Whether there was no case against accused - Whether conviction and sentence ought to be reversed - Criminal Procedure Code, ss. 316(b) & 317

  • For the appellant - Shankar Ram Thomas; Shankar Ram & Co. Advocates.
  • For the respondent - Nadratun Naim Mohd Saidi; Hayda Faridzal Abu Hassan

CLJ 2021 Volume 1 (Part 3)

Order O. 27 r. 3 Rules of Court 2012 which permits a party to apply for final judgment of the relief sought in the claim is predicated upon the rationale that a speedy judgment will obviate delay and save unnecessary expense, and is justifiable if the other party has made a plain admission as would entitle the former to succeed in his claim; it also does not matter, in this respect, that any such admission was made in the pleading or otherwise as admission may be implied from the circumstances of the case. This said, the facts admitted must however be identified with clarity, and must be unambiguous, unconditional and unequivocal; the court will not allow a final judgment to be entered if there is a serious question of law or fact to be argued.
Kawan Lama Builders Sdn Bhd & Anor v. Syarikat Lumut Quarry Sdn Bhd [2021] 1 CLJ 313 [CA]

CIVIL PROCEDURE: Judgment - Admission - Application for judgment or order on admission of facts - Whether admissions must be clear, unequivocal and unambiguous - Whether triable issues raised for full trial - Rules of Court 2012, O. 27 r. 3

 

 

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

  • For the appellants - Adrian Silvarajoo; M/s Ramli Yusuff & Co
  • For the respondent - Nanda Suppiah; M/s A M Ong & Partners

A contributory of a wound up company who is an undischarged bankrupt has the locus to seek the sanction of the Director General of Insolvency for the company to commence an action against a defendant without the need to obtain any prior sanction of the DGI to do so, and in obtaining such sanction, cannot be said to have offended s. 38(1)(d) of the Bankruptcy Act/Insolvency Act 1967 which barred him from 'directly or indirectly taking part in the management of the company'. There is firstly no clear requirement in the 1967 Act or the Companies (Winding-up) Rules 1972 or the Companies Act 2016 that a bankrupt is required to apply for sanction first before he can apply for sanction for the wound up company to commence an action, Secondly, the management of a company upon a winding-up is taken over by the liquidator entirely to the exclusion of the previous management or the Board of Directors who were rendered functus officio. And thirdly, taking s. 38(1)(d) in the context if its setting, the company in which such contributory is said to be directly or indirectly concerned or be taking part in its management, must refer to a going concern or a solvent company, and not a company which has already been wound up.
Leopad Holdings Sdn Bhd v. Asian Shield Warehousing Sdn Bhd & Another Appeal [2021] 1 CLJ 328 [CA]

COMPANY LAW: Liquidation - Company wound up - Undischarged bankrupt - Undischarged bankrupt as concerned contributory sought sanction to enable company to commence civil proceedings - Whether undischarged bankrupt ought to obtain prior sanction of Director General of Insolvency to directly or indirectly take part in management of company in liquidation - Whether entire board of directors ceased and became functus officio once company wound up - Whether entire management and running of wound up company in hands of liquidator - Whether undischarged bankrupt had locus - Whether undischarged bankrupt had competency to apply for sanction - Insolvency Act 1967, s. 38(1)(d) - Companies Act 2016, ss. 2, 486, 492 & 503

COMPANY LAW: Winding up - Liquidation - Concerned contributory - Undischarged bankrupt as concerned contributory sought sanction to enable company to commence civil proceedings - Whether undischarged bankrupt ought to obtain prior sanction of Director General of Insolvency to directly or indirectly take part in management of company in liquidation - Whether entire board of directors ceased and became functus officio once company wound up - Whether entire management and running of wound up company in hands of liquidator - Whether undischarged bankrupt had locus - Whether undischarged bankrupt had competency to apply for sanction - Insolvency Act 1967, s. 38(1)(d) - Companies Act 2016, ss. 2, 486, 492 & 503

 

 

AHMADI ASNAWI JCA
AB KARIM AB JALIL JCA
SURAYA OTHMAN JCA

  • For the appellant - Cecil Abraham, Sunil Abraham, Paul Ong Teng Kek & Gabriel Daniel; M/s Paul Ong & Assocs
  • For the respondent - S Ravichandran & Lee Shu Min; M/s Seah Balan Ravi & Co

A judge trying a case of trafficking in dangerous drugs under s. 39B(1) of the Dangerous Drugs Act 1952, upon a proper interpretation of s. 39B(2A) of the Act, and in particular upon satisfying paragraph (d) thereof, may impose the sentence of imprisonment for life and 15 strokes of whipping on the accused instead of a death sentence; bearing in mind the word 'only' before the said paragraphs (a), (b), (c) and (d), the power of the court to impose the alternative sentence is to be exercised only in regard to the circumstances specified therein and not in any other circumstances; and bearing in mind too that paragraphs (a), (b), or (c) of s. 39B(2A) should be read disjunctively to each other but conjunctively with the mandatory requirement of paragraph (d), with the result that the condition in paragraph (d) must first be satisfied before the discretion to impose the sentence of life imprisonment under the section can be invoked. The condition for para (d)'s application is that the convicted person had assisted the enforcement agency in disrupting drug trafficking activities within or outside Malaysia. Here, no evidence was adduced that the appellant had assisted the enforcement agency in disrupting drug trafficking activities within or outside Malaysia and therefore, no certificate by the Public Prosecutor was produced to that effect. Clearly the requirement of s. 39B(2A) DDA had not been fulfilled for the imposition of imprisonment for life and 15 strokes of whipping, and the trial judge was wrong in opting to exercise his discretion under this provision. The sentence is hence replaced with a death sentence.
Mohd Saifuddin Ab Rahman v. PP & Another Appeal [2021] 1 CLJ 343 [CA]

CRIMINAL PROCEDURE: Appeal - Appeal against conviction and sentence - Accused convicted for offence of drug trafficking - 4,045g cannabis found in carrier basket of motorcycle - Accused sentenced to life imprisonment and 15 strokes of whipping - Whether prosecution proved element of possession of drugs - Whether knowledge of drugs could be inferred - Whether defence probable and adequately considered - Whether investigation complete and proper - Whether conviction and sentence safe - Whether ought to be set aside - Dangerous Drugs Act 1952, ss. 39B(1)(a), 39B(2) & 39B(2A)(c)

CRIMINAL PROCEDURE: Appeal - Appeal against sentence - Appeal by prosecution - Accused convicted for offence of drug trafficking - 4,045g cannabis found in carrier basket of motorcycle - Accused sentenced to life imprisonment and 15 strokes of whipping - Whether trial judge could exercise discretion in sentencing - Whether discretion exercised correctly - Whether accused satisfied requirement under s. 39B(2A) of Dangerous Drugs Act 1952 for trial judge to exercise discretion - Whether accused ought to be sentenced to death

 

 

KAMALUDIN MD SAID JCA
AZIZAH NAWAWI JCA
NORDIN HASSAN JCA

  • For the appellant - Shah Rizal & Nik Muammer Hurrie; M/s Shah & Hurrie
  • For the respondent - Nurul Farhana Khalid; DPP

A retrenchment exercise on the ground of redundancy carried out by an employer without providing any reasonable justification for treating the employee's position as redundant coupled with a failure to adhere to the principle of Last-In First-Out may render the termination of employment without any just cause and excuse; redundancy may also not be justified and be seen as mala fide where the employee's position is replaced with a new one post his retrenchment.
Ng Chang Seng v. Technip Geoproduction (M) Sdn Bhd & Anor [2021] 1 CLJ 365 [CA]

LABOUR LAW: Employment - Retrenchment - Claimant worked with company for 13 years before retrenchment on ground of redundancy - Whether company followed Last-In First-Out principle - Whether retained employees had special skills and expertise not found in claimant - Whether termination actuated by irrelevant considerations - Whether retrenchment exercise bona fide - Whether termination on ground of retrenchment arising out of redundancy was for just cause or excuse

 

 

HANIPAH FARIKULLAH JCA
LEE SWEE SENG JCA
CHE MOHD RUZIMA GHAZALI JCA

  • For the appellant - Anthony Gomez; M/s Gomez Assocs
  • For the respondent - Poh Kuang Horng & Siva Subramaniam; M/s T Siva & Co

Where deep animosity exists between parties claiming rights to a deceased's estate, it is appropriate to appoint a third party neutral person to handle the said estate's assets, both disputed and undisputed, in order to preserve and manage the same. Such preservation would pre-eminently be achieved by the appointment of an administrator pendente lite. Where there is a claim to title or ownership with respect to assets which are allegedly said to form part of a deceased's estate, then the scope of the administrator pendente lite's jurisdiction would necessarily encompass these disputed assets as well, although they were at one time, but are no longer, in the name of the deceased.
Tan Boon Thien & Anor v. Tan Poh Lee & Ors (No 2) [2021] 1 CLJ 391 [CA]

SUCCESSION: Administration of estates - Appointment of administrator pendente lite - Scope of administrator pendente lite's jurisdiction - Preservation of disputed and undisputed assets of estate - Whether administrator pendente lite could only be appointed in respect of estate in ongoing probate action - Whether there was proper object or necessity to justify appointment - Whether High Court correct in exercising discretion to make order for appointment of administrator pendente lite

 

 

UMI KALTHUM ABDUL MAJID JCA
S NANTHA BALAN JCA
MOHD SOFIAN ABD RAZAK J

  • For the 1st appellant - Vijaya Segaran, Norazali Nordin, Alicia Lee & Teoh Kean Guan; M/s Lee & Assocs
  • For the 2nd appellant - Gopal Sri Ram, Yasmeen Soh, Felix Saw, Hanan Kamal; M/s Arthur Wang, Lian & Assocs
  • For the 1st respondent - Michael Chow, Sunita Sankey, Wendy Yeong, Surachetth Jotsuwan; M/s Liza Khan & Sankey
  • For the 2nd & 3rd respondents - Ng Thiang Tuan, Keith Kwan Tjee Kin & Sarah Reshmi Felix; M/s Tuan, Mohd Zain & Co
  • For the stakeholder - Nicole Wee & Ling Li Ching; M/s Chooi & Company + Cheang & Ariff
  • For the administrator pendente lite (Lim Tian Huat) - Renu Zachariah; M/s Rosley Zechariah

A revision of a court's decision is a step in aid, not a continuation of the trial or appeal. There should not be any impediment for the application to be filed, even when there is an appeal pending, provided that the application is made bona fide to correct a miscarriage of justice.
Ooi Hun Seng v. PP [2021] 1 CLJ 413 [HC]

CRIMINAL PROCEDURE: Revision - Revision of conviction and sentence - Application for - Applicant raised issues challenging legality of conviction - Whether court functus officio - Whether revision could be filed when there is appeal pending - Whether revision a step in aid and not continuation of trial appeal - Whether there was miscarriage of justice

 

 

MOHD RADZI ABDUL HAMID JC

  • For the appellant - Baldev Singh Bhar; M/s Syarikat Baldev Bhar
  • For the respondent - Yasinnisa Begam Seeni Mohideen; DPP

(1) In a judicial review application, where the crux of the declaratory order sought by the applicant directly challenges the power of the State Legislature in passing an impugned section which had allegedly encroached its legislative boundary, such challenge, which fell under art. 4(3)(b) of the Federal Constitution, must be commenced with the leave of the Judge of the Federal Court.
(2) The power of the State Legislature of Sabah and Sarawak to make law imposing sales tax is not meant to be confined to the matters enumerated in the State List. As such, the State Sales Tax (Taxable Goods and Rate of Tax) (Amendment) (No 2) Order 2018 is constitutional and valid. The power of the State Legislation to enact the State Sales Tax Ordinance comes with the power to make provisions to spell out the mechanics upon which that law may be implemented. This would include the power to define the word 'sale' or stipulating the date when the sales tax is due or when the sale takes place. All this would enable the State to exercise its power within the authority of the law.
Petroliam Nasional Bhd (Petronas) v. Comptroller Of State Sales Tax, Sarawak & Ors [2021] 1 CLJ 430 [HC]

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ADMINISTRATIVE LAW: Exercise of judicial functions - Judicial review - Application for - Jurisdictional points raised on declaratory reliefs sought for - Applicant challenged legislative power of State to impose sales tax on petroleum product - Whether court had jurisdiction to grant declarations sought - Whether wrong party named in suit - Whether acts of Comptroller of State Sales Tax irrational, unreasonable or disproportionate

CONSTITUTIONAL LAW: Federal and State laws - Constitutionality - Imposition of sales tax on petroleum product - Whether State Legislature of Sarawak empowered to impose sales tax on petroleum product as envisaged by impugned section of the State Sales Tax Ordinance - Whether State Sales Tax (Taxable Goods and Rate of Tax) (Amendment) (No 2) Order 2018 constitutional and valid - Power of State Legislature to enact State Sales Tax Ordinance

 

AZHAHARI KAMAL RAMLI J

  • For the applicant - Malik Imtiaz & Alvin Chong; M/s Idris, Alvin Chong & Partners Advocs
  • For the respondents - JC Fong, Talat Mahmood, Abdul Rashid, Saferi Ali, Nur Azhar Bujang & Voon Yan Sin; State Legal Officers, Kuching

ARTICLES

CLJ Article(s)

  1. SOME THOUGHTS ON THE FEDERAL CONSTITUTION IN RELATION TO OFFENCES AGAINST THE PRECEPTS OF THE RELIGION OF ISLAM [Read excerpt]
    by DATO' SERI MOHD HISHAMUDIN YUNUS* [2021] 1 CLJ(A) i

  2. [2021] 1 CLJ(A) i
    logo
    MALAYSIA

    SOME THOUGHTS ON THE FEDERAL CONSTITUTION IN RELATION TO OFFENCES AGAINST THE PRECEPTS OF THE RELIGION OF ISLAM

    by
    DATO' SERI MOHD HISHAMUDIN YUNUS*

    Malaysia is a federation of 13 States[1] with Islam declared in the Federal Constitution as the religion of the Federation[2]. Being a federation, there is a division of legislative and executive powers between the Federal Government and the State Governments.[3] A subject matter that is within the legislative and executive competence of the States are matters pertaining to the religion of Islam. The details are enumerated as follows in Item 1 of the State List of the Federal Constitution:

    1. ... Islamic law and personal and family law of persons professing the religion of Islam including ... creation and punishment of offences by persons professing the religion of Islam against precepts of that religion, except in regard to matters included in the Federal List; the constitution, organization and procedure of Syariah courts, which shall have jurisdiction only over persons professing the religion of Islam and in respect only of any of the matters included in this paragraph, but shall not have jurisdiction in respect of offences except in so far as conferred by federal law;[4].

    . . .

    * Judge (Rtd), Court of Appeal


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LNS Article(s)

  1. THE WITHDRAWAL OR WITHHOLDING OF LIFE-SUSTAINING TREATMENT: THE FUTURE IN MALAYSIA [Read excerpt]
    by Loh Kah Hey* Dr Mohammad Firdaus Bin Abdul Aziz** [2021] 1 LNS(A) v

  2. [2021] 1 LNS(A) v
    logo
    MALAYSIA

    THE WITHDRAWAL OR WITHHOLDING OF LIFE-SUSTAINING TREATMENT:
    THE FUTURE IN MALAYSIA


    by
    Loh Kah Hey*
    Dr Mohammad Firdaus Bin Abdul Aziz**

    ABSTRACT

    The idea of the withdrawal or withholding of life-sustaining treatment from an incapacitated patient is difficult. Medical practitioners are often confronted with ethical distress and the risk of unnecessary legal repercussions due to the lack of guidance in their decision-making process. The paper critically analyses the flaws in the existing legal regime in our country, Malaysia. Three main points are discussed. Firstly, the lack of clarity in the distinction between an 'act' and an 'omission' may expose medical practitioners to criminal liabilities. Secondly, the fact Malaysia has no legislation to govern the decision-making process and that medical practitioners are merely guided by ethical codes and guidelines would give rise to more doubts. Thirdly, in the absence of a legislation to govern the conduct of medical practitioners, the definitional uncertainties in various concepts such as 'best interest' and 'futility' used in case laws would give rise to arbitrariness and uncertainties. This paper draws from the experience in several common law countries and concludes that in the face of the inadequacies in the current legal system, there is an apparent need for a new and comprehensive enactment to regulate the decision-making process of the withdrawal and withholding of life-sustaining treatment in Malaysia.

    . . .

    * Loh Kah Hey, LLB (Hons) (Queensland), GDLP (Australian National), LLM (Malaya), CLP.

    ** (DPhil)(Public Health) (Oxford), Master of Arts (Laws) (Sheffield), BSc (Hons) (Malaya).

    [The authors are immensely grateful to Dr Sharon Kaur for her comments and insights which improved the manuscript. The article was based on the research conducted for a subject in Master of Laws (LLM) at the Faculty of Law, University of Malaya.]


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  3. HOW 'CRUEL' SHARIAH ACTUALLY IS?--DEMYSTIFYING THE SHARIAH BASICS [Read excerpt]
    by Nabeela Jamil* [2021] 1 LNS(A) vi

  4. [2021] 1 LNS(A) vi
    logo
    MALAYSIA

    HOW 'CRUEL' SHARIAH ACTUALLY IS?--
    DEMYSTIFYING THE SHARIAH BASICS


    by
    Nabeela Jamil*

    1. Introduction

    "He who transgresses the limits of punishment is himself an offender." – Qura'an [2:178]

    The unwanted and unpleasant imposition of something upon a person or group of persons by a competent authority because of their unacceptable behavior to the authority is known as punishment .[1]

    There has always been clash of opinions between different ideologies. As the second largest religion on this earth, Islam has been portrayed as a religion of terror, so the law moving 1.2 billion believers ha s been put to the test in the witness box.

    One ideology calls the stoning of adulterers as barbaric while the other calls it deterrent to make society morally rich. One calls chopping of hands as inhumane whilst the other calls it a measure to counter increasing crime.

    . . .

    *B.A. LL.B (H), Jamia Millia Islamia Advocate, Delhi High Court, India Contact: +918750946855.


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  5. THE GOVERNING LAW OF SULH AND MEDIATION IN MALAYSIA: AN ANALYSIS[1] [Read excerpt]
    by Asma Hakimah binti Ab Halim* Siti Naaishah binti Hambali** [2021] 1 LNS(A) vii

  6. [2021] 1 LNS(A) vii
    logo
    MALAYSIA

    THE GOVERNING LAW OF SULH AND MEDIATION IN MALAYSIA: AN ANALYSIS[1]

    by
    Asma Hakimah binti Ab Halim*
    Siti Naaishah binti Hambali**

    Introduction

    Mediation is an alternative dispute resolution. Nowadays, mediation is widely used by individuals and institutions for out of court settlement of disputes. This paper discusses the concept of Sulh and mediation in Malaysia generally. The first part covers the definition of Sulh and mediation. The second part highlights the laws governing Sulh and mediation and comparison between work manual of Sulh against the principal elements of mediation in the Mediation Act 2012. The analysis focuses on the code of ethics of mediation as expressed in the Rules and Work Manual of Sulh. This article concludes with some recommendations to enhance the law of Sulh and setting up of a Sulh Islamic mediation centre.

    . . .

    *Lecturer, Faculty of Law, Universiti Kebangsaan Malaysia e.mail: hakimah@ukm.edu.my.

    **Ex-Director, UKM Legal Aid and Mediation Centre Email: naaishah7b@gmail.com.


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LEGISLATION HIGHLIGHTS

Principal Acts

Number Title In force from Repealing
ACT 831 Finance Act 2020 The Income Tax Act 1967 [Act 53] see s 3, the Real Property Gains Tax Act 1976 [Act 169] see s 31, the Stamp Act 1949 [Act 378] see s 39, the Petroleum (Income Tax) Act 1967 [Act 543] see s 51, the Labuan Business Activity Tax Act 1990 [Act 445] see s 55, the Finance Act 2012 [Act 742] see s 63 and the Finance Act 2018 [Act 812] see s 65 -
ACT 830 Temporary Measures For Government Financing (Coronavirus Disease 2019 (COVID-19)) Act 2020 27 February 2020 until 31 December 2022 except s 3; 26 October 2020 until 31 December 2022 - s 3 -
ACT 829 Temporary Measures For Reducing The Impact of Coronavirus Disease 2019 (COVID-19) Act 2020 Part I - 23 October 2020 (shall continue for a period of two years); Part II, Part III (Limitation Act 1953), Part IV (Sabah Limitation Ordinance), Part V (Sarawak Limitation Ordinance), Part VI (Public Authorities Protection Act 1948), Part IX (Consumer Protection Act 1999), Part X (Distress Act 1951) - 18 March 2020 until 31 December 2020; Part VII (Insolvency Act 1967) - 23 October 2020 until 31 August 2021; Part VIII (Hire-Purchase Act 1967) - 1 April 2020 until 31 December 2020; Part XI (Housing Development (Control and Licensing) Act 1966), Part XII (Industrial Relations Act 1967), Part XIII (Private Employment Agencies Act 1981), Part XIX - 18 March 2020; Part XIV (Land Public Transport Act 2010), Part XV (Commercial Vehicles Licensing Board Act 1987) - 1 August 2020 until 31 December 2021; Part XVI (Courts of Judicature Act 1964), Part XVII (Subordinate Courts Act 1948), Part XVIII (Subordinate Courts Rules Act 1955) - 18 March 2020 until 23 October 2020 (shall continue for a period of two years) -
ACT 828 National Land Code (Revised 2020) 15 October 2020 pursuant to paragraph 6(1)(xxiii) of the Revision of Laws Act 1968 [Act 1]; Revised up to 14 October 2020; First enacted in 1965 as Act of Parliament No 56 of 1965 -
ACT 827 Currency Act 2020 1 October 2020 [PU(B) 476/2020] -

Amending Acts

Number Title In force from Principal/Amending Act No
ACT A1632 Service Tax (Amendment) Act 2020 1 January 2021 [PU(B) 716/2020] ACT 807
ACT A1631 Sales Tax (Amendment) Act 2020 1 January 2021 [PU(B) 715/2020] ACT 806
ACT A1630 Free Zones (Amendment) Act 2020 1 January 2021 [PU(B) 719/2020] ACT 438
ACT A1629 Excise (Amendment) Act 2020 1 January 2021 [PU(B) 718/2020] ACT 176
ACT A1628 Customs (Amendment) Act 2020 1 January 2021 [PU(B) 717/2020] ACT 235

PU(A)

Number Title Date of Publication In force from Principal/ Amending Act No
PU(A) 11/2021 Prevention and Control of Infectious Diseases (Compounding of Offences) (Amendment) Regulations 2021 12 January 2021 13 January 2021 PU(A) 327/1993
PU(A) 10/2021 Prevention and Control of Infectious Diseases (Measures Within Infected Local Areas) (Recovery Movement Control) Regulations 2021 12 January 2021 13 January 2021 to 31 March 2021 ACT 342
PU(A) 9/2021 Prevention and Control of Infectious Diseases (Measures Within Infected Local Areas) (Conditional Movement Control) Regulations 2021 12 January 2021 13 January 2021 to 26 January 2021 ACT 342
PU(A) 8/2021 Prevention and Control of Infectious Diseases (Measures Within Infected Local Areas) (Movement Control) Regulations 2021 12 January 2021 13 January 2021 to 26 January 2021 ACT 342
PU(A) 7/2021 Proclamation of Emergency 12 January 2021 13 January 2021 ACT 000

PU(B)

Number Title Date of Publication In force from Principal/ Amending Act No
PU(B) 18/2021 Notification of Values of Crude Palm Oil Under Section 12 13 January 2021 1 February 2021 to 28 February 2021 ACT 235
PU(B) 17/2021 Notification of Values of Crude Petroleum Oil Under Section 12 13 January 2021 15 January 2021 to 28 January 2021 ACT 235
PU(B) 16/2021 Notice of Proposed Revocation of Reservation of Land For Public Purpose For Lot 80835 Mukim Batu 11 January 2021 12 January 2021 ACT 828
PU(B) 15/2021 Appointment of Notaries Public Under Subsection 3(1) 11 January 2021 Specified in column (3) of the Schedule ACT 115
PU(B) 14/2021 Notice To Third Parties 11 January 2021 12 January 2021 ACT 613

Legislation Alert

Updated

Act/Principal No. Title Amended by In force from Section amended
ACT 50 Medical Act 1971 PU(A) 3/2021 12 Januari 2021 Jadual Kedua
ACT 50 Medical Act 1971 PU(A) 3/2021 12 January 2021 Second Schedule
PU(A) 5/2017 Customs Duties Order 2017 PU(A) 398/2020 1 January 2021 First Schedule
AKTA 452 Akta Kumpulan Wang Simpanan Pekerja 1991 PU(A) 389/2020 1 Januari 2021 Seksyen 54
AKTA 452 Akta Kumpulan Wang Simpanan Pekerja 1991 PU(A) 388/2020 1 Januari 2021 hingga 31 Disember 2021 Jadual Kelapan

Revoked

Act/Principal No. Title Revoked by In force from
PU(B) 120/2020 Appointment of Deputy Director General of the Board PU(B) 712/2020 1 December 2020
PU(B) 58/2017 Prescription of Amount of Indebtedness of Company PU(B) 711/2020 1 January 2021
PU(B) 166/2019 Exemption Under Section 65U PU(B) 592/2020 15 November 2020
PU(A) 298/2019 Co-Operative Societies (Assumption of Control) (Appointment) (No. 4) Order 2019 PU(A) 332/2020 30 November 2020
PU(A) 229/2020 Co-Operative Societies (Assumption of Control of Koperasi Automobil Kuching Sarawak Berhad) (Reappointment) Order 2020 PU(A) 331/2020 30 November 2020