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Issue #6/2021
11 February 2021

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New This Week

CASE(S) OF THE WEEK

TAN KEEN KEONG v.
TAN ENG HONG PAPER & STATIONERY SDN BHD & ORS AND OTHER APPEALS
[2021] 2 CLJ 318
FEDERAL COURT, PUTRAJAYA
TENGKU MAIMUN TUAN MAT CJ; AZAHAR MOHAMED CJ (MALAYA); ZALEHA YUSOF FCJ;
ZABARIAH MOHD YUSOF FCJ; MARY LIM FCJ
[CIVIL APPEALS NO: 02(f)-5-02-2017(P), 02(f)-6-02-2017(P), 02(f)-12-02-2017(P),
02(f)-13-02-2017(P) & 02(f)-14-02-2017(P)]
17 DECEMBER 2020

In an order for the winding-up of a solvent company by the court in the purported exercise of its discretion under the 'just and equitable' ground in s. 218(1)(i) of the Companies Act 1965, based on illegality or contravention of law, the particular legislation must always be carefully examined against the specific intent and its context, before any final pronouncement is made. Winding up should only be granted where the cessation of illegality complained of can only be achieved by the dissolution of the company.

COMPANY LAW: Winding-up - Just and equitable ground - Whether affairs of companies conducted in unfair, unjust and inequitable manner - Whether non-compliance or breach of specific statutes by directors should be regularised by provisions of statutes - Whether alleged contraventions of law must be examined against their specific intent and in context of s. 218 of Companies Act 1965 - Whether violations of directors personally could be ascribed to companies

COMPANY LAW: Winding-up - Petition - Grounds of - Whether just and equitable to wind up companies - Allegation of illegality pertaining to 'family fund and under counter-activities' - Whether grievances of shareholder or contributory of company or of unhappy family member - Channelling of funds from company - Whether a tax evasion issue - Whether petitioner's real objective consistent with grounds relied on - Whether winding-up order the proper remedy - Whether winding-up order would cause irreparable damage to interests of other innocent shareholders and creditors - Companies Act 1965, s. 218(1)(i)


DATO' DR MOHAMAD RAMEEZ YAHAYA v.
LEMBAGA TATATERTIB PERKHIDMATAN AWAM KUMPULAN PENGURUSAN (NO 1) & ANOR
[2021] 2 CLJ 151
COURT OF APPEAL, PUTRAJAYA
BADARIAH SAHAMID JCA; SURAYA OTHMAN JCA; LAU BEE LAN JCA
[CIVIL APPEAL NO: W-01(A)-275-05-2019]
11 AUGUST 2020

In disciplinary proceedings following the misconduct of a public officer, public bodies, namely, the Disciplinary Board ('DB') and Disciplinary Appeal Board ('DAB'), have a duty to act fairly in substance and procedure. Failure to set aside the decision pertaining to punishment while the charge is being reconsidered will result in the punishment remaining in force and still subsisting, thus, it amounts to a procedural impropriety that is highly prejudicial to the public officer. The charge must also clearly spell out an effective date of punishment, especially in matters that have been subjected to appeal(s) and re-consideration and where the punishment meted out is severe, so as to avoid confusion and, as in this case, where the public officer was punished twice for the same charge which was wrongful.

ADMINISTRATIVE LAW: Judicial review - Certiorari - Public service - Application to quash decisions of Disciplinary Board ('DB') and/or Disciplinary Appeal Board ('DAB') - Public officer charged and found guilty of misconduct - DB pronounced punishment of reduction of three salary scales for period of 36 months ('first decision') - Public officer appealed to DAB against first decision - DAB remitted matter back to DB for re-consideration without setting aside first decision - DB re-pronounced same punishment and decision affirmed by DAB - Whether first punishment remained in force and still subsisted - Whether failure of DAB to set aside first punishment amounted to procedural impropriety - Whether procedural impropriety tainted proceedings of misconduct - Whether caused prejudice to public officer - Whether decisions of DB and/or DAB ought to be quashed - Rules of Court 2012, O. 53

ADMINISTRATIVE LAW: Public officer - Disciplinary proceedings - Application for judicial review by public officer to quash decisions of Disciplinary Board ('DB') and/or Disciplinary Appeal Board ('DAB') - Public officer charged and found guilty of misconduct - Disciplinary Board ('DB') pronounced punishment of reduction of three salary scales for period of 36 months ('first decision') - Public officer appealed to Disciplinary Appeal Board ('DAB') against first decision - DAB remitted matter back to DB for re-consideration without setting aside first decision - DB re-pronounced same punishment and decision affirmed by DAB - Two proceedings by DB on same charge - Effective date of punishment not stated - Whether there was certainty in effective date of implementation and duration of punishment - Whether prejudicial to public officer considering severity of punishment - Whether decisions tainted with procedural impropriety - Whether decisions of DB and/or DAB ought to be quashed - Rules of Court 2012, O. 53


APPEAL UPDATES  
  1. Majlis Peguam Malaysia v. Lim Yin Yin [2018] 1 LNS 2003 (CA) overruling the High Court case of Lim Yin Yin v. Majlis Peguam Malaysia [2017] 1 LNS 1263

  2. PP lwn. Davood Nikzadeh Karim & Satu Lagi [2018] 1 LNS 2166 (CA) mengesahkan kes Mahkamah Tinggi PP lwn. Davood Nikzadeh Karim & Anor [2016] 1 LNS 972

LATEST CASES

Legal Network Series

[2019] 1 LNS 30

FOO YOON FAH lwn. PP

Hukuman penjara maksima selama 7 tahun bagi kesalahan mentadbir dadah berbahaya ke dalam diri sendiri adalah berpatutan dan dapat memberi pengajaran kepada pesalah tegar. Kesusahan diri pesalah bukan merupakan faktor untuk dipertimbangkan dalam mengurangkan hukuman.

PROSEDUR JENAYAH: Rayuan - Rayuan terhadap hukuman - Hukuman 7 tahun penjara bagi kesalahan mentadbir dadah berbahaya ke dalam diri sendiri - Hukuman maksima - Pesalah tegar - Kewujudan kesalahan lampau - Sama ada hukuman yang dijatuhkan adalah berpatutan - Sama ada hukuman berbentuk pengajaran wajar dijatuhkan - Sama ada kesusahan diri pesalah adalah faktor mitigasi yang perlu dipertimbangkan

  • Bagi pihak perayu - Tidak Diwakili
  • Bagi pihak responden - Zabidah Ahmad, Timbalan Pendakwa Raya; Pejabat Penasihat Undang-Undang Negeri Kedah

[2019] 1 LNS 167

MOHD SUPIAN MAT SAAD lwn. PP

1. Kegagalan pihak pendakwaan mengemukakan barang kes yang dirompak dan senjata pisau ketika perbicaraan yang melibatkan jenayah rompakan bersenjata tidak akan memudaratkan kes pendakwaan. Tertuduh tidak akan dibebaskan daripada pertuduhan semata-mata kerana ketiadaan barang kes dan kegagalan mengecam barang kes.

2. Laporan maklumat pertama tidak menghendaki suatu pembuktian yang lengkap. Ketinggalan saksi pendakwaan untuk menamakan tertuduh di dalam laporan maklumat pertama tidak akan mencacatkan kes pendakwaan.

PROSEDUR JENAYAH: Pendakwaan - Kes pendakwaan - Jenayah rompakan bersenjata - Kegagalan mengemukakan barang kes yang dirompak dan senjata pisau semasa perbicaraan - Tertuduh ditangkap beberapa hari selepas kejadian - Sama ada ketiadaan barang kes dan kegagalan mengecam barang kes telah memudaratkan kes pendakwaaan - Sama ada tertuduh wajar dibebaskan

PROSEDUR JENAYAH: Pendakwaan - Kes pendakwaan - Kesalahan rompakan bersenjata - Ketinggalan saksi pendakwaan untuk menamakan tertuduh di dalam laporan maklumat pertama - Sama ada laporan maklumat pertama menghendaki suatu pembuktian yang lengkap - Sama ada kegagalan menamakan tertuduh di dalam laporan maklumat pertama telah mencacatkan kes pendakwaan - Kanun Tatacara Jenayah, s. 107

PROSEDUR JENAYAH: Pembelaan - Penafian - Tertuduh memberikan dua versi yang berbeza - Sama ada pembelaan tertuduh yang berubah-ubah menyebabkan keterangannya sukar dipercayai

PROSEDUR JENAYAH: Hukuman - Kesalahan rompakan bersenjata - Pesalah tegar - Kewujudan rekod kesalahan lampau - Sama ada hukuman yang lebih berat wajar dijatuhkan

KETERANGAN: Pengecaman - Pengecaman di dalam kandang pesalah - Saksi-saksi berpeluang melihat wajah tertuduh dengan jelas ketika kejadian - Sama ada pengecaman di dalam kandang pesalah adalah keterangan substantif

  • Bagi pihak perayu - Siti Nuraini Yakub; T/n Jasmadi, Azhan & Azwani
  • Bagi pihak responden - Siti Hajar Mustaffa, Timbalan Pendakwa Raya

[2019] 1 LNS 359

MUHAMMAD FITRI HASSAN lwn. PP

Reaksi tertuduh yang berada dalam keadaan biasa dan tergamam apabila dadah dijumpai berdekatan tertuduh ketika serbuan membangkitkan inferen berkenaan milikan dan pengetahuan dadah. Hakim bicara boleh bergantung kepada reaksi tertuduh tersebut yang tidak dicabar bersama-sama fakta dan keadaan yang lain untuk membuat dapatan fakta bahawa tertuduh mempunyai milikan dan pengetahuan berkenaan dadah.

PROSEDUR JENAYAH: Rayuan - Rayuan terhadap sabitan dan hukuman - Pertuduhan pengedaran dadah berbahaya - Dakwaan bahawa hakim bicara telah bersandar kepada reaksi tertuduh yang tergamam dan berada dalam keadaan biasa untuk membuktikan milikan dan pengetahuan - Sama ada hakim bicara telah bersandar secara berlebihan terhadap reaksi tertuduh untuk membuktikan elemen milikan dan pengetahuan - Sama ada sabitan dan hukuman ke atas tertuduh adalah selamat

KETERANGAN: Inferen - Kelakuan - Pertuduhan pengedaran dadah berbahaya - Pembuktian milikan dan pengetahuan - Tertuduh berada dalam keadaan biasa dan tergamam ketika dadah ditemui berdekatan tertuduh - Pembelaan tidak mencabar reaksi tertuduh - Sama ada reaksi tertuduh boleh membuktikan milikan dan pengetahuan berkenaan dadah - Akta Keterangan 1950, ss 8 & 9

  • Bagi pihak perayu - Mohd Hisham Mohd Nazir & Muhammad Ilyasa Iqbal Abu Bakar; T/n Hisham Nazir & Co
  • Bagi pihak responden - Wong Poi Yoke, Timbalan Pendakwa Raya; Bahagian Rayuan dan Perbicaraan, Jabatan Peguam Negara

[2019] 1 LNS 1555

PP v. ARIS MOHD NOR

The sentence passed by a trial judge may be considered inadequate when it fails to follow the prevailing trend of sentencing and undue weight is given to the personal interest of the accused over public interest.

CRIMINAL PROCEDURE: Appeal - Appeal against sentence - Appeal by prosecution - Accused was sentence to 6 years of imprisonment and 10 strokes of whipping for possession of dangerous drugs - Possession of Cannabis weighing 219 g - Accused pleaded guilty - Whether trial judge had given undue weight to mitigating factors - Whether sentence passed was based on prevailing trend of sentencing - Whether sentence passed by trial judge was adequate - Whether undue weight was given to personal interest of accused over public interest

  • For the appellant - Muhammad Azmi Mashud; Deputy Public Prosecutor
  • For the respondent - Sutheswary Perumalu; M/s Suthes & Associates

[2019] 1 LNS 1556

AMITABHA GUHA (sebagai wasi bagi harta pusaka MADHABENDRA MOHAN GUHA) & ANOR v. PENTADBIR TANAH DAERAH HULU LANGAT

1. Sale comparable or acquisition comparable, if suitable, can be used in determining the market value of scheduled land. However, comparable sales in the vicinity of the scheduled land is an important component to be considered in assessing the market value of the acquired land.

2. A mere mistake on the part of the judge in describing the category of use of land as 'general' instead of 'business building' had no negative consequences on his assessment of the market value of the scheduled land.

LAND LAW: Acquisition of Land - Compensation - Methods of valuation - Determination of market value - Whether sale comparable and acquisition comparable could be used as suitable method of valuation - Whether judge had adopted most suitable sale comparable in determining market value - Whether comparable sales in vicinity of scheduled land is an important component to be considered in assessing market value of acquired land - Land Acquisition Act 1960, First Schedule para 1(1A)

LAND LAW: Acquisition of Land - Compensation - Assessment of market value - Existence of mistake on category of use of land - Judge erred in describing scheduled land as 'general' when actual category of land use was 'building' with express condition 'business building' - Both private and government assessors described category of land as 'business/building' - Whether mistake on part of judge has any negative effect on his assessment of market value

WORDS AND PHRASES: 'taking possession of land' - Section 48 Land Acquisition Act 1960 - Whether means actual physical possession of land - Whether only land administrator is an authorized body to take possession of scheduled land - Whether land administrator takes possession of land only after due process of inquiry and upon conclusion of inquiry

STATUTORY INTERPRETATION: Land Acquisition (Amending) Act 2016 - Section 43 - Whether provisions of Land Acquisition (Amendment) Act 2016 apply to land reference proceedings which arose from objection under s. 37(1) of Land Acquisition Act 1960

  • For the appellants - Ambiga Sreenevasan, Shireen Selvaratnam, Heng Yee Keat & Limm Wei Jie; Christopher & Lee Ong
  • For the respondents - Siti Fatimah Talib (ALA) & Etty Eliany Tesno (ALA)

CLJ 2021 Volume 2 (Part 2)

In disciplinary proceedings following the misconduct of a public officer, public bodies, namely, the Disciplinary Board ('DB') and Disciplinary Appeal Board ('DAB'), have a duty to act fairly in substance and procedure. Failure to set aside the decision pertaining to punishment while the charge is being reconsidered will result in the punishment remaining in force and still subsisting, thus, it amounts to a procedural impropriety that is highly prejudicial to the public officer. The charge must also clearly spell out an effective date of punishment, especially in matters that have been subjected to appeal(s) and re-consideration and where the punishment meted out is severe, so as to avoid confusion and, as in this case, where the public officer was punished twice for the same charge which was wrongful.
Dato' Dr Mohamad Rameez Yahaya v. Lembaga Tatatertib Perkhidmatan Awam Kumpulan Pengurusan (No 1) & Anor [2021] 2 CLJ 151 [CA]

ADMINISTRATIVE LAW: Judicial review - Certiorari - Public service - Application to quash decisions of Disciplinary Board ('DB') and/or Disciplinary Appeal Board ('DAB') - Public officer charged and found guilty of misconduct - DB pronounced punishment of reduction of three salary scales for period of 36 months ('first decision') - Public officer appealed to DAB against first decision - DAB remitted matter back to DB for re-consideration without setting aside first decision - DB re-pronounced same punishment and decision affirmed by DAB - Whether first punishment remained in force and still subsisted - Whether failure of DAB to set aside first punishment amounted to procedural impropriety - Whether procedural impropriety tainted proceedings of misconduct - Whether caused prejudice to public officer - Whether decisions of DB and/or DAB ought to be quashed - Rules of Court 2012, O. 53

ADMINISTRATIVE LAW: Public officer - Disciplinary proceedings - Application for judicial review by public officer to quash decisions of Disciplinary Board ('DB') and/or Disciplinary Appeal Board ('DAB') - Public officer charged and found guilty of misconduct - Disciplinary Board ('DB') pronounced punishment of reduction of three salary scales for period of 36 months ('first decision') - Public officer appealed to Disciplinary Appeal Board ('DAB') against first decision - DAB remitted matter back to DB for re-consideration without setting aside first decision - DB re-pronounced same punishment and decision affirmed by DAB - Two proceedings by DB on same charge - Effective date of punishment not stated - Whether there was certainty in effective date of implementation and duration of punishment - Whether prejudicial to public officer considering severity of punishment - Whether decisions tainted with procedural impropriety - Whether decisions of DB and/or DAB ought to be quashed - Rules of Court 2012, O. 53

 

 

BADARIAH SAHAMID JCA
SURAYA OTHMAN JCA
LAU BEE LAN JCA

  • For the appellant - Ismail Badiuzzaman, Shahidan Baharom & Farah Helmy; M/s Ismail Badiuzzaman & Assocs
  • For the respondents - Kogilambigai Muthusamy & Liew Horng Bin; SFCs

The arbitrator, in delivering the arbitration award beyond the time frame stipulated, in breach of rules of arbitration, and where there was no extension of time sought, had acted without mandate and therefore, in excess of jurisdiction warranting the award to be set aside pursuant to s. 37(1)(a)(vi) of the Arbitration Act 2005.
Ken Grouting Sdn Bhd v. RKT Nusantara Sdn Bhd & Another Appeal [2021] 2 CLJ 173 [CA]

ARBITRATION: Award - Setting aside - Award delivered beyond timeline stipulated under rules of arbitration - Whether compliance with timeline mandatory - Whether extension of time sought by arbitrator - Whether failure to comply with timeline affected arbitrator's mandate and jurisdiction - Whether failure to raise objection by parties to proceedings amounted to waiver of cessation of arbitrator's mandate - Whether award delivered without mandate was a nullity - Whether award ought to be set aside - Arbitration Act 2005, ss. 37(1)(a)(vi) & 46

 

 

KAMARDIN HASHIM JCA
S NANTHA BALAN JCA
LEE HENG CHEONG JCA

  • For the appellant - Felix Dorairaj & Lim Kong Soon; M/s Dorairaj, Low & Teh
  • For the respondent - Lam Ko Luen, Victoria Loi & Hoo Yee Huan; M/s Shook Lin & Bok

(i) Appeals of the Public Prosecutor arising from decisions of the Magistrate's Court in criminal matters that come before the Court of Appeal, must necessarily be confined to issues of law only. Section 50(2) of the Courts of Judicature Act 1964 ('CJA') provide that two prerequisites apply to all appellants, namely that (i) prior leave must be obtained from the Court of Appeal; and (ii) the appeal must be confined to questions of law. Section 50(3) of the CJA, which uses the word 'notwithstanding' when referring to the prerequisite of obtaining prior leave, does not say that s. 50(2) of the CJA has no application at all to the appeal of the Public Prosecutor. 

(ii)  Regardless of whether the appeal of the Public Prosecutor is confined to questions of law only, there is no requirement to state questions of law in the notice of appeal filed by the Public Prosecutor. In fact, an aggrieved person is not obligated to state his questions of law in the notice of appeal either.
PP v. Rahmat Ghazali & Another Appeal [2021] 2 CLJ 207 [CA]

CRIMINAL PROCEDURE: Appeal - Notice of appeal - Notice of appeal filed by Public Prosecutor against decision of Magistrate's Court - Preliminary objection by accused that questions of law in notice of appeal not worded properly and not included in petition of appeal - Whether Public Prosecutor required to state questions of law in notice of appeal in respect of criminal appeals or revisions originating from Magistrate's Court - Courts of Judicature Act 1964, s. 50(2)

CRIMINAL PROCEDURE: Appeal - Petition of Appeal - Petition of appeal filed by Public Prosecutor against decision of Magistrate's Court - Petition of appeal disclosed only issues of fact or issues of mixed fact and law - Whether petition of appeal must be confined to issues of law only - Whether in contravention of s. 50(2) of Courts of Judicature Act 1964

 

 

KAMALUDIN MD SAID JCA
RAVINTHRAN PARAMAGURU JCA
NORDIN HASSAN JCA

(Criminal Appeal No: B-09-147-04-2019)
  • For the appellant - Nazran Mohd Sham; DPP
  • For the respondent - Afifuddin Ahmad Hafifi & Siti Sarah Khalil; M/s Salehuddin Saidin & Assocs
(Criminal Appeal No: A-09-108-03-2019)
  • For the appellant - Nazran Mohd Sham; DPP
  • For the respondent - Chris Kooi Wei Kit & Ivy Chin; M/s Kit & Assocs

Bursa Malaysia Securities Berhad ('Bursa'), a stock exchange licensed under the Capital Markets and Services Act 2007 ('CMSA 2007'), derives its statutory duty under s. 11 of the CMSA 2007 to ensure a fair and orderly market for the securities traded through its facilities. The decision by Bursa to impose fines on the regulated persons for breach of its ACE Listing Requirements is centred on public law rights. Hence, the proper course of action would be by way of judicial review proceedings under O. 53 of the Rules of Court 2012 and not by way of writ and statement of claim.
Ahmad Amryn Abd Malek & Ors v. Bursa Malaysia Securities Bhd [2021] 2 CLJ 222 [HC]

CIVIL PROCEDURE: Transfer of proceedings - Application for - Whether decisions improper or illegal - Transfer of enforcement proceedings from Sessions Court to High Court - Grounds for - Whether there were common questions to be determined - Whether there was merit in application - Whether transfer would save time and costs - Whether action attempt to challenge decisions made under statutory and regulatory duties - Whether decisions should have been challenged in judicial proceedings - Capital Markets and Services Act 2007, ss. 9 & 11

CIVIL PROCEDURE: Striking out - Writ and statement of claim - Challenge against decisions made under statutory and regulatory duties - Whether action would have adverse impact against decisions of other statutory and public bodies - Whether decisions should have been challenged in judicial proceedings - Whether abuse of court process - Whether writ and statement of claim ought to be struck out - Rules of Court 2012, O. 18 r. 19(1)(a), (b), (d) & O. 53

 

 

ANAND PONNUDURAI JC

  • For the plaintiffs - Mak Lin Kum; M/s Syed Ibrahim & Co
  • For the defendant - Nimalan Devaraja & Danielle Dickman; M/s Skrine

A charge for criminal breach of trust must specify the particular direction or law or contract that has been breached. Particularisation, as required under s. 154 of the Criminal Procedure Code ('CPC'), gives notice to the accused person for him to know exactly what he is answering to and enables him to prepare his defence. Charges that do not comply with s. 154 of the CPC are defective and are not curable under s. 156 and/or 158 and/or 422 of the CPC if the objection had been raised before the commencement of the trial. The statutory mechanism of s. 156 of the CPC, if used to cure proceedings which are defective ab initio and violates the constitutional rights of an accused, is an abuse of process.
Anuar Ghazali v. PP [2021] 2 CLJ 245 [HC]

CRIMINAL PROCEDURE: Charge - Defective charge - Accused charged for breach of trust - Penal Code, s. 405 - Allegation that charge failed to specify method in which accused allegedly committed offences - Whether charge defective - Whether there was non-compliance of s. 154 of Criminal Procedure Code ('CPC') - Whether charge ought to be struck out - Whether court seized with power to direct Public Prosecutor to amend charges before commencement of trial - Whether s. 156 of CPC could cure objections to defective charges raised at outset of trial - Whether High Court could exercise inherent powers and/or jurisdiction to set aside or strike out criminal proceedings on ground of failure to comply with s. 154 of CPC

CRIMINAL PROCEDURE: Charge - Striking out - Res judicata - Accused/applicant charged for breach of trust - Penal Code, s. 405 - Allegation that charge failed to specify method in which accused allegedly committed offences - Applicant's application to Magistrate for orders ordering prosecution to amend charges dismissed - Applicant sought revision of Magistrate's decision - Whether oral judgment of High Court Judge touched on applicant's main gripe - Whether applicant could commence new application to strike out charge - Whether res judicata set in

 

 

NOORIN BADARUDDIN J

  • For the applicant - Kamarul Hisham Kamaruddin; M/s The Chambers of Kamarul Hisham & Hasnal Rezua
  • For the respondent - Devinderjit Kaur Gill; DPP

The court looks at the intention of the parties, as captured in the contract that they have entered, in determining whether a contract gives rise to a joint and several or joint obligations. If it is crystal-clear that the parties had intended for the obligations to be joint and several, notwithstanding that the judgment is silent as to whether the obligations for the judgment sum were joint and several or joint only, the creditor's rights against the obligors are on a joint and several basis as provided for in the contract.
Herukh Thakurdas Jethwani & Anor v. Bank Simpanan Nasional [2021] 2 CLJ 291 [HC]

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CONTRACT: Loan - Agreement - Obligations and liabilities - Default in repayment of loan - Bank obtained judgment-in-default of defence against borrowers - Judgment did not expressly state liability - Whether jointly or jointly and severally - Extent of obligation of each party to pay judgment sum

CIVIL PROCEDURE: Judgment - Judgment-in-default of defence - Judgment sum - Parties entered into loan agreement - Obligations and liabilities - Default in repayment of loan - Bank obtained judgment-in-default of defence against borrowers - Judgment did not expressly state liability - Whether jointly or jointly and severally - Extent of obligation of each party to pay judgment sum

 

ONG CHEE KWAN JC

  • For the plaintiffs - Leonard D'Cruz; M/s Chetan Jethwani & Company
  • For the defendant - Frances Peter, Nuraqilah Abdul Nasir & Muhammad Naif Amal Zulkiflie; M/s Frances, Hazlina & Partners

CLJ 2021 Volume 2 (Part 3)

A solicitor is not entitled to seek an order of taxation upon failure to fulfil the requirements of delivering a bill of costs and no reasons are provided for such failure and, where more than six years had lapsed since the completion of the work, as the limitation period of six years applies to any action by an advocate and solicitor to recover costs due for any business done by him under the Legal Profession Act 1976.
Lim Kien Seng & Anor v. Manoharan Kandasamy [2021] 2 CLJ 307 [FC]

LEGAL PROFESSION: Bill of costs - Taxation - Claim for payment of legal fees and order for taxation - Whether requirements of delivering bill of costs fulfilled - Failure to deliver bill of costs - Whether letter between solicitor and appellant constituted consent - Whether appellant merely asked whether solicitor open to having bills taxed in letter - Whether more than six years lapsed since completion of work - Whether entitlement of solicitor affected - Legal Profession Act 1976, s. 126

 

 

ROHANA YUSUF PCA
MOHD ZAWAWI SALLEH FCJ
IDRUS HARUN FCJ
ABDUL RAHMAN SEBLI FCJ
ZABARIAH MOHD YUSOF FCJ

  • For the appellants - Maliz Imtiaz Sarwar, Sonia Deva Doss & Khoo Suk Chyl; M/s Culaz & Assocs
  • For the respondent - Gopal Sri Ram, Harpal Singh Grewal, Archana Nair, Pang Wilson, Marcus Lee, Shailender Bhar; M/s AJ Arrifin Yeo & Harpal

In an order for the winding-up of a solvent company by the court in the purported exercise of its discretion under the 'just and equitable' ground in s. 218(1)(i) of the Companies Act 1965, based on illegality or contravention of law, the particular legislation must always be carefully examined against the specific intent and its context, before any final pronouncement is made. Winding up should only be granted where the cessation of illegality complained of can only be achieved by the dissolution of the company.
Tan Keen Keong v. Tan Eng Hong Paper & Stationery Sdn Bhd & Ors And Other Appeals [2021] 2 CLJ 318 [FC]

COMPANY LAW: Winding-up - Just and equitable ground - Whether affairs of companies conducted in unfair, unjust and inequitable manner - Whether non-compliance or breach of specific statutes by directors should be regularised by provisions of statutes - Whether alleged contraventions of law must be examined against their specific intent and in context of s. 218 of Companies Act 1965 - Whether violations of directors personally could be ascribed to companies

COMPANY LAW: Winding-up - Petition - Grounds of - Whether just and equitable to wind up companies - Allegation of illegality pertaining to 'family fund and under counter-activities' - Whether grievances of shareholder or contributory of company or of unhappy family member - Channelling of funds from company - Whether a tax evasion issue - Whether petitioner's real objective consistent with grounds relied on - Whether winding-up order the proper remedy - Whether winding-up order would cause irreparable damage to interests of other innocent shareholders and creditors - Companies Act 1965, s. 218(1)(i)

 

 

TENGKU MAIMUN TUAN MAT CJ
AZAHAR MOHAMED CJ (MALAYA)
ZALEHA YUSOF FCJ
ZABARIAH MOHD YUSOF FCJ
MARY LIM FCJ

(Civil Appeals No: 02(f)-5-02-2017(P) & 02(f)-12-02-2017(P))

  • For the appellants - Gopal Sri Ram, Marcus Lee, Karluis Quek, Karin Lim Ai Ching, Suppiah Arumugam, Ong Swee Long & Ong Kang Nyong; M/s Presgrave & Matthews
  • For the respondents - Malik Imtiaz Sarwar, Esther Geetha Jayaraja, Alia Ilani Nasution & Chan Wei June; M/s Chew Das & Jayaraja

(Civil Appeal No: 02(f)-6-02-2017(P))

  • For the appellant - Gopal Sri Ram, Marcus Lee, Karluis Quek, Karin Lim Ai Ching, Suppiah Arumugam, Ong Swee Long & Ong Kang Nyong; M/s Presgrave & Matthews
  • For the 1st respondent - Tan Swee Cheng; M/s SC Tan
  • For the 2nd, 3rd, 4th & 5th respondents - Malik Imtiaz Sarwar, Esther Geetha Jayaraja, Alia Ilani Nasution & Chan Wei June; M/s Chew Das & Jayaraja

(Civil Appeals No: 02-13-02-2017(P) & 02-14-02-2017(P))

  • For the appellants - Malik Imtiaz Sarwar, Esther Geetha Jayaraja, Alia Ilani Nasution & Chan Wei June; M/s Chew Das & Jayaraja
  • For the respondents - Gopal Sri Ram, Marcus Lee, Karluis Quek, Karin Lim Ai Ching, Suppiah Arumugam, Ong Swee Long & Ong Kang Nyong; M/s Presgrave & Matthews

A company director is in a fiduciary relationship with his company and has a duty to avoid conflicts of interest; he must at all material times exercise his powers bona fide and in the best interests of the company as a whole. The essence of the fiduciary duty is a duty to act bona fide at all times in the interests of the company and not for a collateral purpose. The failure to do so is a blatant breach of fiduciary duty, especially when one has signed a Confidentiality Agreement and a Conflict of Interest Agreement, which should not be read in isolation but together with the terms of employment and any other contemporaneous documents relating to one's employment.
Acumen Scientific Sdn Bhd v. Yeow Liang Ming [2021] 2 CLJ 369 [CA]

COMPANY LAW: Directors - Breach of fiduciary duties - Allegation of - Defendant signed confidentiality agreement and conflict of interest agreement when first employed - Defendant subsequently transferred to an associate company or subsidiary within same group of companies - Whether defendant bound by terms of two agreements despite separate legal entities of companies - Defendant resigned and formed company having similar business - Whether evidence showed conduct of defendant contravened terms of agreements - Whether defendant owed plaintiff fiduciary duty to act bona fide in interests of plaintiff

 

 

ZALEHA YUSOF JCA
HASNAH MOHAMMED HASHIM JCA
HAS ZANAH MEHAT JCA

  • For the appellant - Pravin Kaur Jessy & Mohamad Akmar Mohd Ghouse; M/s Jessy & Assocs
  • For the respondent - Cheng Theng Keat & Goh Chee Sun; M/s Cheng Lee & Goh

The offence against accused person, having originally found guilty under s. 377E of the Penal Code, was subsequently amended to s. 354 of the Penal Code; the act performed by the accused person against the victim was short of rape or sodomy and did not amount to gross indecency; the act fulfilled the requirements for the offence of outraging of modesty.
PP v. Kamarul Azamin Mohamad & Another Appeal [2021] 2 CLJ 386 [HC]

CRIMINAL LAW: Penal Code - Section 354 - Outraging of modesty - Accused originally tried and found guilty on charges under s. 377E of Penal Code - Whether offence under s. 377E proven - Whether appropriate provision was s. 354 of Penal Code - Whether a misdirection by Sessions Court Judge in taking into account internal investigations - Whether accused deprived of fair trial - Whether offence under s. 354 established - Sentence - Whether fine adequate sentence

 

 

ASLAM ZAINUDDIN JC

  • For the appellant - Aimi Syazwani Sarmin; DPP
  • For the respondent - Mohd Taqiyuddin Yahya; M/s Taqiyuddin & Partners

It is an abuse of court process to dress up a claim for oppression, pursuant to s. 346 of the Companies Act 2016 ('Act'), as a claim for debt recovery. 'Debenture', for the purpose of the Act (unless the context otherwise requires), means debt or financial instruments issued for fundraising or arising from instruments or transactions effected in the money market. If the court were to find that bank or lenders have the locus standi to commence an action under s. 346 of the Act, it would open the floodgates for banks or lenders who have obtained debentures as a form of security, to mount an action under s. 346 to recover the outstanding debts from the shareholders and/or directors of the subject company personally when faced with perceived difficulties or the possibility of a shortfall in the recovery of their loans. This would open the floodgates to permit creditors of the company to file oppression actions as a means of recovering their debts.
The Bank Of Nova Scotia Bhd & Anor v. Lion DRI Sdn Bhd & Ors [2021] 2 CLJ 400 [HC]

|

COMPANY LAW: Oppression - Allegation of - Bank/lender solely held debenture over assets and undertakings as securities for facilities granted to company/borrower - Allegations by bank/debenture holder that directors of company oppressive - Whether bank had locus standi - Whether bank 'debenture holders' within meaning of s. 346 of Companies Act 2016 - Whether there were continuing acts of oppression in existence capable of remedy - Whether claim was corporate complaint actionable by debenture holder - Whether action abuse of process - Whether 'debenture holder' under s. 346 meant only holders of debt instruments that were tradable and excluded holders of security given to bank in consideration of commercial loans granted to company - Whether there must exist class of debenture holders before one or more could apply under s. 346 - Approach to be taken in determining whether corporate wrongs could be basis for oppression action

CIVIL PROCEDURE: Striking out - Application for - Application to strike out originating summons - Bank/debenture holder commenced action against company directors - Allegations by bank/debenture holder that directors of company oppressive - Whether bank had locus standi - Whether bank 'debenture holders' within meaning of s. 346 of Companies Act 2016 - Whether there were continuing acts of oppression capable of remedy - Whether claim was corporate complaint actionable by debenture holder - Whether action abuse of process - Whether originating summons ought to be struck out - Rules of Court 2012, O. 18 r. 19

 

ONG CHEE KWAN JC

  • For the plaintiffs - Lee Shih & Nathalie Ker; M/s Lim Chee Wee Partnership
  • For the 1st defendant - Robert Low, Ooi Huey Ling, Chong Lip Yi & Elaine Koh; M/s Ranjit Ooi & Robert Low
  • For the 2nd & 3rd defendants - S Suhendran & Rodney Gan; M/s Sanjay Mohan
  • Watching brief for the 2nd & 3rd defendants - Ngam Kah Jing

ARTICLES

LNS Article(s)

  1. UNITED NATIONS CONVENTION ON THE LAW OF THE SEA (UNCLOS) - DEFINING THE MARITIME BOUNDARIES AND ALTERNATIVE RESOLUTIONS AVAILABLE [Read excerpt]
    by MOHD TAUFIK BIN MOHD@MOHD YUSOFF* [2021] 1 LNS(A) xviii

  2. [2021] 1 LNS(A) xviii
    logo
    INTERNATIONAL

    UNITED NATIONS CONVENTION ON THE LAW OF THE SEA (UNCLOS) -
    DEFINING THE MARITIME BOUNDARIES AND ALTERNATIVE RESOLUTIONS AVAILABLE


    by
    MOHD TAUFIK BIN MOHD@MOHD YUSOFF*

    A. INTRODUCTION

    [1] The United Nations Convention on the Law of the Sea (“the Convention”) is an international instrument that is imperative in order to establish the stability and peaceful use of seas and oceans among the nations throughout the world. Every nation shall not be allowed to arbitrarily establish their own national law in order to determine their own maritime boundaries. Otherwise, we have to go back to antiquity where the Emperor was ‘Lord of the whole world’ and the Persian King , Cyrus, claimed dominion over all the seas, the theory of legal dominion over the seas as advocated by an English jurist known as John Selden.[1] The Convention was established for global cooperation as the problems regarding ocean space are closely interrelated and need to be considered as a whole.[2]

    . . .

    * The author is currently serving as Sessions Court Judge in Miri and was the Unit Head of Border, Territorial and Maritime Matters in the Attorney General's Chambers, Malaysia.


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  3. CASE LAW DEVELOPMENT FOR REFUGEES IN MALAYSIA [Read excerpt]
    by Parvinder Kaur Harbindar Singh* Harneshpal Karamjit Singh** [2021] 1 LNS(A) xix

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

    CASE LAW DEVELOPMENT FOR REFUGEES IN MALAYSIA

    by
    Parvinder Kaur Harbindar Singh*
    Harneshpal Karamjit Singh**

    Introduction

    During the Movement Control Order ("MCO") that is still ongoing until 9th June 2020, the refugee issue was once again brought to the public eye. The Minister of Home Affairs, Datuk Seri Hamzah Zainuddin, was reported stating that all groups of refugees in Malaysia are not recognized by the Malaysian Government notwithstanding that they may possess a United Nations High Commission for Refugees ("UNHCR") card ("UNHCR card").[1] He went on to say that, put simply, they will be recognized as illegal immigrants.[2]

    Such classification of refugees runs contrary to the 1951 United Nations Convention Relating to the Status of Refugees (“1951 Convention”) and 1967 Protocol Relating to the Status of Refugees (“1967 Protocol”). Article 1(2) of the 1951 Convention defined a refugee as follows:

    . . .

    * Parvinder Kaur Harbindar Singh, LL.B. (Aberystwyth University), CLP, Advocate and Solicitor of the High Court of Malaya.

    ** Harneshpal Karamjit Singh, LL.B. (Cardiff University), Barrister-at-Law (The Honourable Society of Lincoln's Inn), LL.M. in Corporate Governance, (University of Manchester) and Diploma in International Arbitration (Chartered Institute of Arbitrators); and Member of the Chartered Institute of Arbitrators. He was admitted to the High Court of Malaya after completing his pupillage at Messrs Shook Lin & Bok. He is co-Managing Partner at Messrs Lui & Bhullar.


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  5. COVID-19 PANDEMIC: A CHALLENGE TO PRISON OVERPOPULATION [Read excerpt]
    by Che Audah Hassan* Fauziah Hani Ahmad Fuzi** Azlina Mohd Hussain*** [2021] 1 LNS(A) xx

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

    COVID-19 PANDEMIC:
    A CHALLENGE TO PRISON OVERPOPULATION


    by
    Che Audah Hassan*
    Fauziah Hani Ahmad Fuzi**
    Azlina Mohd Hussain***

    Abstract

    This article aims to review the problem of prison overpopulation in Malaysia, particularly during the Covid-19 pandemic, and the possibility of the community service sentence to reduce the problem of prison overpopulation in Malaysia. This study discusses the theories of punishment applicable under the sentence of community service in Malaysia for suitable offenders who are above 21 years of age.

    Introduction

    The occurrence of the Covid-19 pandemic outbreak has impacted the well-being of all levels of society. The government of Malaysia has taken measures to curb the spread of Covid-19 under the Prevention and Control of Infectious Diseases (Declaration of Infected Local Areas) Order 2020 resulting in the issuing of regulations under the Movement Control Order and other Covid-19 regulations. The areas or districts which have a high volume of positive Covid-19 cases have been declared as red zones, including the Kepayan Prison in Sabah and the Tembok Prison in Kedah.

    . . .

    * LLB. Hons (IIUM), LL.M (UM), PhD (UiTM), (Senior lecturer at Faculty of Law (UiTM).

    ** LLB. Hons (IIUM), LLB.S (IIUM) LL.M (IIUM) PhD (IIUM), (Deputy Registrar of Federal Court).

    *** LLB. Hons (IIUM), LL.M (UiTM) (Lecturer at Law Dept., Seremban Campus, UiTM).


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  7. CASE IN POINT: THE MALAYSIAN COURTS ON ARBITRATION IN 2020[1] [Read excerpt]
    by Teh Wai Fung* Soh Zhen Ning** [2021] 1 LNS(A) xxi

  8. [2021] 1 LNS(A) xxi
    logo
    MALAYSIA

    CASE IN POINT:
    THE MALAYSIAN COURTS ON ARBITRATION IN 2020[1]


    by
    Teh Wai Fung*
    Soh Zhen Ning**

    2020 was the year that grew curiouser and curiouser, but one bastion of normalcy was the continued steady development of arbitration law in the Malaysian courts. Below, we spotlight four arbitration-related scenarios you may find yourself in, how the Malaysian courts dealt with each scenario, and how you should react to these developments in the law. We have framed our explanations based on questions we anticipate from clients, but we hope that the discussion will be of interest also to the wider legal and arbitral community. We also briefly acknowledge two judgments of the UK Supreme Court on international arbitration that may well go on to influence how the Malaysian courts approach similar issues.

    . . .

    *Associate, Lee Hishammuddin Allen & Gledhill; LLB (Hons) (Dunelm); Advocate and Solicitor of the High Court of Malaya; called to the Bar of England and Wales (twf@lh-ag.com).

    ** Associate, Lee Hishammuddin Allen & Gledhill; LLM (Cantab), LLB (Hons) (Liv); Advocate and Solicitor of the High Court of Malaya; called to the Bar of England and Wales (szn@lh-ag.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 A1634 Co-Operative Societies (Amendment) Act 2021 Not Yet In Force ACT 502
ACT A1633 Tourism Tax (Amendment) Act 2021 Not Yet In Force ACT 791
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

PU(A)

Number Title Date of Publication In force from Principal/ Amending Act No
PU(A) 52/2021 Islamic Financial Services (Amendment of Schedule 11) Order 2021 10 February 2021 11 February 2021 ACT 759
PU(A) 51/2021 Financial Services (Amendment of Schedule 11) Order 2021 10 February 2021 11 February 2021 ACT 758
PU(A) 50/2021 Prevention and Control of Infectious Diseases (Measures Within Infected Local Areas) (Conditional Movement Control) (No. 2) (Amendment) (No. 3) Regulations 2021 9 February 2021 10 February 2021 PU(A) 22/2021
PU(A) 49/2021 Prevention and Control of Infectious Diseases (Measures Within Infected Local Areas) (Movement Control) (No. 2) (Amendment) (No. 5) Regulations 2021 9 February 2021 10 February 2021 PU(A) 21/2021
PU(A) 48/2021 Real Property Gains Tax (Exemption) 2018 (Amendment) Order 2021 9 February 2021 10 February 2021 PU(A) 360/2018

PU(B)

Number Title Date of Publication In force from Principal/ Amending Act No
PU(B) 87/2021 Appointment of Other Officers Under Subsection 4(1) For Federal Territory of Kuala Lumpur 9 February 2021 1 July 2020 ACT 757
PU(B) 86/2021 Appointment of Authorized Officers 9 February 2021 1 March 2021 ACT 308
PU(B) 85/2021 Appointment of Probation Officers 8 February 2021 1 March 2021 ACT 611
PU(B) 84/2021 Appointment and Revocation of Appointment of Chief Executive Officer Under Subsection 6a(1) 8 February 2021 9 February 2021 ACT 533
PU(B) 83/2021 Appointment of Date of Coming Into Operation of Electronic Land Administration System of Strata Titles 8 February 2021 9 February 2021 ACT 318

Legislation Alert

Updated

Act/Principal No. Title Amended by In force from Section amended
AKTA 758 Akta Perkhidmatan Kewangan 2013 PU(A) 51/2021 11 Februari 2021 Jadual 11
ACT 758 Financial Services Act 2013 PU(A) 51/2021 11 February 2021 Schedule 11
PU(A) 22/2021 Peraturan-Peraturan Pencegahan Dan Pengawalan Penyakit Berjangkit (Langkah-Langkah Di Dalam Kawasan Tempatan Jangkitan) (Kawalan Pergerakan Bersyarat) (No. 2) 2021 PU(A) 50/2021 10 Februari 2021 Jadual Kedua
PU(A) 22/2021 Prevention and Control of Infectious Diseases (Measures Within Infected Local Areas) (Conditional Movement Control) (No. 2) Regulations 2021 PU(A) 50/2021 10 February 2021 Second Schedule
PU(A) 21/2021 Peraturan-Peraturan Pencegahan Dan Pengawalan Penyakit Berjangkit (Langkah-Langkah Di Dalam Kawasan Tempatan Jangkitan) (Kawalan Pergerakan) (No. 2) 2021 PU(A) 49/2021 10 Februari 2021 Peraturan 5 dan Jadual Kedua

Revoked

Act/Principal No. Title Revoked by In force from
PU(A) 10/2021 Prevention and Control of Infectious Diseases (Measures Within Infected Local Areas) (Recovery Movement Control) Regulations 2021 PU(A) 23/2021 22 January 2021
PU(A) 9/2021 Prevention and Control of Infectious Diseases (Measures Within Infected Local Areas) (Conditional Movement Control) Regulations 2021 PU(A) 22/2021 22 January 2021
PU(A) 8/2021 Prevention and Control of Infectious Diseases (Measures Within Infected Local Areas) (Movement Control) Regulations 2021 PU(A) 21/2021 22 January 2021
PU(A) 10/2021 Peraturan-Peraturan Pencegahan Dan Pengawalan Penyakit Berjangkit (Langkah-Langkah Di Dalam Kawasan Tempatan Jangkitan) (Kawalan Pergerakan Pemulihan) 2021 [Dibatalkan Oleh PU(A) 23/2021] PU(A) 23/2021 22 Januari 2021
PU(A) 9/2021 Prevention and Control of Infectious Diseases (Measures Within Infected Local Areas) (Conditional Movement Control) Regulations 2021 PU(A) 22/2021 22 Januari 2021