CHONG NGE WEI & ORS v. KEMAJUAN MASTERON SDN BHD
FEDERAL COURT, PUTRAJAYA
ABDUL RAHMAN SEBLI FCJ; ZABARIAH MOHD YUSOF FCJ; HARMINDAR SINGH DHALIWAL FCJ
[CIVIL APPEAL NO: 03-1-08-2020(B)]
23 MARCH 2022
Clause 12 of the statutory sale and purchase contract under Schedule H of the Housing Development (Control and Licensing) Regulations 1989 is clear in that it entitles a purchaser of a housing unit to claim damages in the event the developer had used different materials for the construction of the property without his written consent; 'different materials' means just that and does not necessarily connote 'cheaper materials'. It is also to be noted that in deciding whether the purchaser is or is not entitled to the damages sought for, the fact that he had opted to claim for damages instead of the alternative right to claim for a reduction in the price of the property is an irrelevant consideration. And in so far as proof of actual loss is concerned, the tendering of a quotation prepared by the building contractor detailing the remedial works to be undertaken, and the costs that it would entail, may suffice to constitute prima facie proof of the damages suffered by the purchaser; it needs no reiteration that in the absence of any rebuttal evidence against such a prima facie proof, it is not open to the developer to retort that the sum awarded was excessive and unreasonable.
BURSA MALAYSIA SECURITIES BHD v. MOHD AFRIZAN HUSAIN
FEDERAL COURT, PUTRAJAYA
NALLINI PATHMANATHAN FCJ; ZALEHA YUSOF FCJ; RHODZARIAH BUJANG FCJ
[CIVIL APPEAL NO: 02(f)-39-07-2021(W)]
31 MARCH 2022
Bursa Malaysia Securities Berhad is not obliged to immediately and summarily de-list a listed corporation upon the listed corporation being served with a winding up order without regard to any appeals or legal challenges thereto, but should only do so upon a final determination of the said appeals or legal challenges; this said, in order to gain the corporation's continued listing, the liquidator of such a corporation in liquidation must continue to comply with the relevant Listing Requirements as provided under the law.
KALIAMAH RAJAN & ORS v. SUPRITENDAN WOOI KOOI CHEANG, KETUA POLIS DAERAH TAMPIN, NEGERI SEMBILAN & ORS
HIGH COURT MALAYA, KUALA LUMPUR
JOHN LEE KIEN HOW JC
[ORIGINATING SUMMONS NO: WA-24NCVC-168-01-2021]
08 MARCH 2022
The Malaysian Federal Constitution, unlike the Constitution in other countries, is written and requires strict compliance of the provisions contained therein. In the absence of any provision spelling out for compensation in the event of a violation of constitutional rights, any attempt by the courts in awarding such compensation under the Federal Constitution is tantamount to unauthorised judicial legislation and constitutes a breach of the doctrine of separation of powers; it follows that the claim for compensation pursuant to art. 5 of the Federal Constitution by the dependants of the deceased who died in police custody in this case must, of necessity, fail.
DATIN SERI ROSMAH MANSOR v. PP & ANOTHER APPEAL
COURT OF APPEAL, PUTRAJAYA
HANIPAH FARIKULLAH JCA; GUNALAN MUNIANDY JCA; HASHIM HAMZAH JCA
[CRIMINAL APPEAL NOS: W-05-336-09-2021 & W-05-338-09-2021]
22 MARCH 2022
In the absence of jurisdiction conferred on the criminal court to deal with declaratory reliefs, the criminal court has no power to grant the declaratory reliefs sought, which is a civil remedy. A criminal court cannot be equated with a civil court for the purpose of exercising power relating to grant of declaration; hence the applicant ought to have moved the civil court for the appropriate remedy and not resort to criminal proceedings to set the relief sought.
- Abdul Ravuff Datuk A.S. Dawood & Ors v. Dr Abdul Rahiman Datuk A.S. Dawood And Other Appeals  1 LNS 855 [FC]
- Lim Lip Eng v. Ong Ka Chuan  1 LNS 763 [FC]
- Ramli Ghani v. Kementerian Kesihatan Malaysia & Anor  1 LNS 712 [FC]
- Sathya Vello v. PP  1 LNS 773 [FC]
- Datin Seri Rosmah Mansor v. PP & Another Appeal  4 CLJ 523 [CA]
- Mohd Ismail Syed Merah v. PP  1 LNS 439 [CA]
- Kunci Semangat Sdn Bhd v. Thomas Varkki M V Varkki & Anor  1 LNS 424 [CA]
"The word “good faith” has no exhaustive meaning. Generally, good faith is understood to mean honesty or sincerity of intention. The common features to look for in determining a purchaser of good faith are as follows (i) good faith does not simply mean an absence of fraud, deceit or dishonesty; (ii) knowledge of a dispute as to the ownership of property and knowledge of fraud allegation vitiate good faith; and (iii) elements of carelessness and negligence negate good faith."
"We disagree with learned counsel for Maybank's submission. In our view, a reasonable, prudent purchaser in Maybank's position would investigate as to what, why and how the plaintiffs had alleged there was a fraud. Surely, Maybank ought to take precautions to find out the truth of the matter before deciding to grant a loan to the second defendant. If Maybank conducted an investigation, it would discover that the documentary evidence relied upon by Maybank to effect the transfer of the properties to Wong Ing Tong were tainted with forgeries. Despite having actual knowledge of the dispute of ownership and the allegation of fraud, Maybank treated the caveats as insignificant and had them removed. Maybank then proceeded to grant a loan to the second defendant and create the charges. In the circumstances of this case, we find Maybank had not acted reasonably and fairly. Our view is Maybank's conduct excludes good faith. Therefore, we find the learned HCJ had not erred in making a finding that Maybank was not a purchaser in good faith."
– per Hadhariah Syed Ismail JCA in Wong Ing Tong v. Yap Piat Eng & Anor And Other Appeals  4 CLJ 882
“Naturally, there is a difference between the making of a fatwa (as in the procedure and law to adhere to) and the substantive contents of the fatwa. As regards the procedure, it necessarily requires compliance with written law and the failure to do so might result in the issuance of public law remedies that can only be issued by the civil superior courts. The contents of the fatwa and their interpretation are a different story and a matter purely for the jurisdiction of the Syariah courts to the extent that it relates to “hukum syarak” or personal law and not matters which objectively might be taken to contradict any written law (Federal or State statutes or even the FC for that matter).”
“Thus, simply put, if the vires of any fatwa or the conduct of the Fatwa Committee is challenged purely on the basis of constitutional or statutory compliance, then it is a matter for the civil courts. If the question pertains to the matters of the faith or the validity of the contents of the fatwa tested against the grain of Islamic law, then the appropriate forum for review or compliance is the Syariah courts.” – per Tengku Maimun Tuan Mat CJ in SIS Forum (Malaysia) v. Kerajaan Negeri Selangor; Majlis Agama Islam Selangor (Intervener)  3 CLJ 339
“We will say at once that overturning our own precedent is a serious matter. This court must always respect its own precedents. The rule of legal precedence must be followed in the interest of certainty. Great sanctity must be attached to the finality of our judgment. This is not to say that this court should never depart from an earlier decision. We do not blindly honour stare decisis. While it is true that we can overturn our own precedent in exceptional cases where it is really necessary, as an apex court, we need to be cautious about departing from our own earlier decision especially in a case that concerns the interpretation of a legislative provision, lest we lose the trust of public by persistent shifts of laws. The law is about stability, predictability and certainty that allow the public and the business community to plan and organise their lives based on the previous precedent. A degree of certainty, consistency and predictability in the law is one of the foundations upon which our justice system operates. Therefore, we remind ourselves that it is of utmost importance this court adheres to its past rulings.” - Per Azahar Mohamed CJ in Tenaga Nasional Bhd v. Chew Thai Kay & Anor  2 CLJ 333
“It is this court's view that the publications complained of as appearing in exh. NHR3 show that they are riddled with speculation, accusation and insinuations of some conspiracy to subvert the administration of justice through manipulation of evidence by witness, wilful incomplete investigation, cover up of persons who are also guilty for the death of the victim and abandonment of the duties of a public officer whether it be the police or the prosecution. In this court's opinion even if the respondent had some basis of complaint against the police or the prosecution as averred, it is not a licence for the respondent to embark on a public crusade of accusations of malicious conduct on the prosecution and its witness when the trial is still in progress.”
“In this court's final analysis and conclusion, this court agrees with the applicant that there is a real threat and risk to a fair trial and the administration of justice in the on-going trial.”
“The risks that the prosecution will face in the conduct of the trial vis-a-vis the conduct of its witnesses and aspersions of malicious conduct by the prosecution cannot be compensated by any other remedy. An order to gag the respondent is therefore proportionate to the preservation of the right of the prosecution to conduct the trial without fear, undue pressure of public condemnation, suspicion of malicious misconduct or the risk of any of its witnesses becoming an absent, uncooperative or fearful witness. The gag order will essentially restrict the respondent with regards to publications or comments that have the effect of casting allegations of speculation, suspicion or accusations of illegal conduct, cover up and manipulation of evidence by the police, prosecution and the prosecution witnesses pending the final conclusion of the trial.” - Per Mohd Radzi Abdul Hamid JC in PP v. Arumugam Dorasamy  1 CLJ 297
“What we have here is a scenario where the appellant has requested the Registrar-General to update the register following the undisputed DNA results and the order of the High Court declaring the appellant as the biological father of the child; that with this latest information, the record of the identity of the father of the child as "maklumat tidak diperolehi" can no longer be maintained but must be updated by way of a correction or amendment.”
“In our view, that request is fair and proper as the declaratory order of the court is valid and remains effective. We are of the firm opinion that this new information ought to be reflected in the public record, that is the register, that the true status of the child be corrected to reflect accurate information as regards the biological father, as required by the scheme of Act 299. We cannot see how it may be argued that correcting the register to reflect the declaratory order of the court is not in the interest of the child. On the contrary, it is certainly in the best interest and welfare of the child; consonant with the principles under the Convention on the Rights of the Child, to which Malaysia has acceded and ratified to on 11 February 1995.”- per Mary Lim FCJ in Leow Fook Keong v. Pendaftar Besar Bagi Kelahiran dan Kematian Malaysia, Jabatan Pendaftaran Negara, Malaysia & Anor  1 CLJ 23
( as of 17 May 2022)
- ACT 452
Employees Provident Fund Act 1991
- PU(A) 175/2019
Income Tax (Restriction on Deductibility of Interest) Rules 2019
- PU(A) 34/2011
Malaysia Deposit Insurance Corporation (Differential Premium Systems in Respect of Deposit-Taking Members) Regulations 2011
- ACT 291
Patents Act 1983
- ACT 291
Patents Act 1983
(as of 07 April 2022)
- PU(A) 449/2021
Road Transport (Prohibition of Use of Road) (Federal Roads) (No. 15) Order 2021
- PU(A) 159/2012
Copyright (Licensing Body) Regulations 2012
- PU(A) 127/2017
Malaysia Deposit Insurance Corporation (Order of Priority For Payments of Different Categories of Islamic Deposits, Determination and Classification of Assets and Application of Disposal Proceeds of Assets in the Winding Up of Deposit-Taking Member) Regulations 2017
- PU(A) 182/2018
Registration of Pharmacists (Amendment of First Schedule) Order 2018
- PU(A) 100/2013
Labuan Business Activity Tax (Exemption) (No. 2) Order 2013
- PU(A) 153/2022
Malaysia Deposit Insurance Corporation (Disclosure Requirements For Trust Accounts And Joint Accounts) (Amendment) Regulations 2022
- PU(A) 152/2022
Employees Provident Fund (Amendment) (No. 2) Rules 2022
- PU(A) 151/2022
Employees Provident Fund (Modification To The Purposes For Withdrawal Under Subsection 54(6)) Order 2022
- PU(A) 150/2022
Pembangunan Sumber Manusia Berhad (Exemption Of Levy) (No. 2) Order 2022
- PU(A) 149/2022
Pembangunan Sumber Manusia Berhad (Exemption Of Levy) Order 2022
- PU(B) 268/2022
Notice Of Exemption Under Subsection 73(1) (The Heaven Park Berhad)
- PU(B) 267/2022
Notification Of Values Of Crude Palm Oil Under Section 12
- PU(B) 266/2022
Notification Of Values Of Crude Petroleum Oil Under Section 12
- PU(B) 265/2022
Temporary Exercise Of Ministerial Functions
- PU(B) 264/2022
Notice Regarding The Certification And Inspection Of The Supplementary Electoral Roll For The Month Of April 2022
- Bills 2021
- Government Of Kelantan Gazette - Syariah Criminal Code (Ii) (1993) 2015
- Legislation: An Overview
- Legislation: FAQs
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by Dalilah Khanapiah[i] Nik Aqil Baig Baig Mughal[ii] Puteri Sarah Kaiyisah Megat Suhaimiiii] Wan Muhammad Syahmi Wan Muhammad[iv] Nurus Sakinatul Fikriah Mohd Shith Putera[v]
The eCommerce industry is dramatically growing significantly, with revenues reaching new highs. As the industry blooms, concerns about the impacts concerning consumers' privacy have gradually increased due to the integration of the Predictive Analytics (PA) technology — a branch of advanced analytics that uses historical data, statistical modelling, data mining tools, and machine learning to produce predictions about future outcomes. In a fiercely competitive eCommerce environment, PA is the answer for businesses finding the way to their target market. The use of PA is profound that in addition to all the positive business possibilities, there are just as many new privacy concerns being created, such as privacy breaches, price discrimination, customer segmentation and many more. Adopting the doctrinal research methodology, this research investigates the legal risks of PA and the threshold of the Personal Data Protection Act 2010 ('PDPA') in addressing them. Comparatively, this research examines the application and strength of the privacy-by-design ('PbD') model adopted by the European General Data Protection Regulation ('GDPR') as part of the new data protection construct requirements for advanced technologies. This research hopes to shed light on the interaction between PA and the traditional data protection regime of the PDPA, thus providing a case for the privacy-by-design model as a way forward in Malaysia.
WITH A FOCUS ON INDIGENOUS TRADITIONAL CULTURAL EXPRESSIONS –
A CASE STUDY ON THE PUA KUMBU
by Saradha Lakshmi Hariharan*
Indigenous communities often pride themselves on their artistic handicrafts that come in various forms and are usually unique to the communities themselves. These handicrafts are part of their traditional cultural expressions and demonstrate their knowledge and intellectual inputs that have been passed down through many generations. Since specific tribal communities are producing special, innovative, and distinctive handicrafts, these should logically and ideally be protected as geographical indications (GIs) and allow them to reap the benefits. However, due to some uncertainties and since the international jurisprudence on GI is still in the development stage, the position on GIs has not been extended to handicrafts per se in Malaysia. Taking the Pua Kumbu handicraft weave as a case study, this study, using legal research methodology, has explored the different intellectual property mechanisms in place to accord protection to traditional cultural expressions. By examining the provisions of international legal instruments and best practices from other countries such as Indonesia and New Zealand, this study proposes suggestions for a sui generis regime that can be incorporated and modified to suit the Malaysian landscape, thus offering some options and avenues of thoughts for the policymakers to create a comprehensive protection system for traditional cultural expressions in the country.
by Nehaluddin Ahmad
Wearing a hijab is a personal, voluntary choice of Muslim women of their own free will, motivated by personal piety of being identified as a Muslim. Muslim women should not be deprived of wearing the hijab, as this will impede their fundamental rights to manifest their religion and constitute indirect discrimination on the grounds of religion where everyone should be treated equally before the law, regardless of their gender, religion, race, color of their skin or language. Muslim women's freedom to wear the hijab is enshrined in numerous human rights provisions recognized by several international legal instruments and fundamental rights in countries' constitutions as the freedom to practice one's religion. According to Articles 14, 25, and 25(1) of the Indian Constitution, there is freedom of conscience and the right to freely profess, practice, and propagate religion. This paper aims to investigate the position of the hijab worn by Indian Muslim women and controversies raised during the present time.
by Mohammad Mahbubi Ali
The notion of tasarruf fudhuli (disposition of unauthorised agency, hereafter referred to as 'unauthorised agency') in Islamic financial institutions (IFIs) has invoked an ongoing debate among shariah scholars and Muslim economists alike. Some perceive its application in IFIs as a violation of the general axiom of wealth protection that prohibits the encroachment of another's property as an important aspect of the protection of lawfully-owned property. On the other hand, many assert that the ratification feature under the concept attracts product innovation and offers flexibility to IFIs to rectify transactions involving the issue of unauthorised agency.
Classical Muslim jurists held diametrically opposed views on the legitimacy of unauthorised agents. The Hanbali school and the renewed fatwa of the Shafi'i school (qawl jadid) held that unauthorised agency is null and void. However, the Hanafis and Malikis consider it valid, its effectiveness only suspended (mawquf) contingent upon ratification by the person for whom the contract is intended. Once ratification occurs, the act becomes conclusively valid and all the legal effects that the shariah has assigned to it are established.
PRACTICAL COMPLETION UNDER UNDEFINED CIRCUMSTANCES*
by Sua Shiang - Nian**
In the construction industry, practical completion marks one of the most important milestones in the construction contract. Generally, upon practical completion, a series of rights and obligations under the contract are triggered as a result. It is common to see that upon the issuance of the Certificate of Practical Completion, the site possession is handed over from the contractor to the employer, the first moiety of the retention sum is released, the contractor's liability to pay Liquidated Ascertained Damages ends, and the commencement of the Defects Liability Period occurs. This is by no means an exhaustive list and various other rights and obligations can equally become the focal topic at issue. Thus, it is no coincidence that whether practical completion exists or not is often a hotbed of a dispute by parties under a construction contract.
This article will explore the meaning of practical completion where the construction contract is silent on the matter and therefore, its meaning and scope are left to the courts to determine.
Malaysia’s labour market momentum escalated in Q1 2022
Malaysia’s labour market momentum escalated in the first quarter of 2022 (Q1 2022) as both demand and supply ascended further, according to the Department of Statistics Malaysia (DOSM). Commenting on the release of the Labour Market Review, First Quarter 2022 (LMR Q1 2022) today, Chief Statistician Datuk Seri Mohd Uzir Mahidin said since the beginning of this year, the government had continued to lift the Covid-19 containment measures implemented for the past two years as all the states had shifted into the final phase of National Recovery Plan (NRP). “More people proceed to conduct business and social activities while ensuring compliance to the standard operating procedures, thus prompting a rise in people’s mobility within and across the states. “The flurries of socioeconomic activities continued throughout the quarter as things had practically resumed some semblance of normalcy. Therefore, the economy expanded by 5.0 per cent in the first quarter of 2022 after posting a growth of 3.6 per cent in the previous quarter,” he said in a statement.
Dismissal of worker due to unforeseen health situation was ‘harsh, unjust and unreasonable’
The Fair Work Commission (FWC) recently dealt with an unfair dismissal claim of a worker who said he was unjustly terminated for missing work because he was required to get a COVID test and then isolate. The employer said that the worker was dismissed due to his “inability to follow established company procedures” regarding his “unapproved absences” from work. The case highlights how HR must ensure that the interests of the employer and the needs of employees must both be met.
‘Under-tapped pool’ of talent may be answer to firms looking to step up diversity-hiring practices
Businesses around the world have been facing labor shortages as many people quit their jobs — and Asia is no exception. A 2021 Mercer survey found that employers from Malaysia, Indonesia, the Philippines and Thailand observed a higher turnover rate, especially at the mid-career level, when compared with previous years. The Great Resignation isn’t ending any time soon, so how can employers in Asia continue to attract and retain talent?
Indonesian domestic workers will not be paid anything lower than the minimum wage
Human resources minister M Saravanan has clarified that Indonesian domestic workers will not be paid anything lower than the minimum wage that is enforced at the time of their employment in Malaysia. He said that the memorandum of understanding (MoU) signed by Malaysia and Indonesia on April 1 is very clear on this provision.
Jump in minimum wage may be too much for businesses to absorb
Economists are divided over the quantum of the minimum wage hike at a time when businesses are still grappling with the impact from Covid-19, which has been raging for two years. Last Saturday, Prime Minister Datuk Seri Ismail Sabri Yaakob announced that the minimum wage will be increased to RM1,500 from RM1,200 effective May 1. Initially, it will apply to big firms and government-linked companies. Socio-Economic Research Centre (SERC) executive director Lee Heng Guie said a jump of 25% in minimum wage is too much for businesses to absorb as they are not fully recovered from the coronavirus pandemic.
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