MOHD NAJIB JAMALUDIN v. TENAGA NASIONAL BERHAD
INDUSTRIAL COURT, PENANG
JEYASEELEN T ANTHONY
AWARD NO. 1952 OF 2023 [CASE NO: 18-4-2768-20]
19 SEPTEMBER 2023
There exists a clear case of condonation if there is a long period of continued employment with the company without any sort of interference. Misconduct, in this case absenteeism and tardiness, is deemed to be condoned when an election is made by the company to retain a guilty employee.
MOHD NADZRI AZHARI v. MOHD AMAR MOHAJIN & ORS
HIGH COURT MALAYA, KUALA LUMPUR
AMARJEET SINGH SERJIT SINGH J
[JUDICIAL REVIEW NO: WA-25-401-12-2021]
11 SEPTEMBER 2023
(i) The Public Officers (Conduct and Discipline) (Amendment) Regulations 2002 ('2002 Regulations') was enacted for the purpose of amending the principal regulations, the Public Officers (Conduct and Discipline) Regulations 1993 ('1993 Regulations'); the 2002 Regulations does not substitute the 1993 Regulations. The 1993 Regulations is still in force and remains as the only regulations governing the conduct and discipline of public servants until such time it is repealed; (ii) Regulation 28(7) of the 1993 Regulations does not prohibit the institution of disciplinary proceedings after a discharge not amounting to acquittal has been granted. This is clear from regs. 30 and 31 which allow disciplinary proceedings to be instituted against a public officer even where criminal proceedings are still pending against the officer, subject to the limitations imposed therein.
DATUK SERI POH GEOK SENG & ORS v. PANG SIEW FIAN & ANOR AND OTHER APPEALS
COURT OF APPEAL, PUTRAJAYA
HAS ZANAH MEHAT JCA; CHE MOHD RUZIMA GHAZALI JCA; SEE MEE CHUN JCA
[CIVIL APPEAL NOS: M-01(IM)(NCvC)-547-09-2021, M-01(IM)(NCvC)-553-09-2021 & M-02(IM)(NCvC)-570-10-2021]
09 OCTOBER 2023
The Board of Governors of a school is a creature of statute, namely the Education Act 1996 ('EA'), and can only do those things which it is authorised to do by the EA. The Board of Governors is not a legal entity pursuant to ss. 2 and 53 of the EA and hence, does not have the legal capacity to sue or be sued.
- Five Star Heritage Sdn Bhd & Ors v. Peguam Negara Malaysia & Other Appeals  1 LNS 2423 [FC]
- Affin Bank Berhad v. Energypeak Fze  1 LNS 2429 [CA]
- Alupole(M)sdn Bhd v. Metal One Engineering Sdn Bhd  1 LNS 2415 [CA]
- Lee Kuang Gen v. Tan Sri Dato' Seri Dr M Mahadevan Mahalingam & Another Appeal  1 LNS 2410 [CA]
- Alowonle Oluwajuwon Gilbert v. PP  1 LNS 2391 [CA]
- Pengarah Tanah Dan Galian Selangor & Anor v. Pnsb Acmar Sdn Bhd & Anor & Another Appeal  1 LNS 2346 [CA]
- Neelamegan Kumar & Yang Lain lwn. PP  1 LNS 2342 [CA]
- Yusri Ahmad lwn. Pentadbir Tanah Daerah Kota Setar  1 LNS 2347 [CA]
- Gan Boon Aun v. PP  1 LNS 2328 [CA]
- Lembaga Tabung Haji & Anor v. Encap Sdn Bhd  1 LNS 2381 [CA]
“Never was there any evidence that the plaintiff had tried to reverse and ram into the MPV and/or the two policemen. All the time the MPV was behind the Proton Saga and the court could not see what was the perceived threat given their positions throughout the hot pursuit.”
“The conduct of the first and second defendants in pursuing the plaintiff's car and later, opening fire towards the car gave rise to a duty of care to the plaintiff. At the point of time when the rear tyre of the Proton had been punctured after being shot at and it slowed down, there was no longer the necessity to pursue the car. But instead, the evidence was that the first and second defendants continued to shoot at it from the back. The court opined that they may have been overzealous in their attempts to capture the plaintiff and in that process, had used excessive force as can be seen from the number of gunshot traces found in the car. Additionally, the injuries suffered by the plaintiff was not remote, it was a foreseeable damage. Therefore, the court concluded that the strayed bullet(s) fragments were the most probable cause of the residual brain damage at the left parietal lobe of the plaintiff's brain with a small metallic foreign body lodged in the area of the brain. This was attributed to the negligent acts of the first and second defendants after the tyre was punctured and the car had stopped. Pursuant thereto, in line with ss. 5 and 6 of the Government Proceedings Act 1956 and applicable case laws, the third, fourth, fifth and sixth defendants were also to be held liable vicariously for the acts of the two policemen.” - Per Noor Ruwena Md Nurdin JC in Muhammad Isma Izami Jaafar v. Konstabel Muhamad Zafran Aiman Muhamad Zainol & Ors  10 CLJ 792
“With due respect to the Court of Appeal, it fell into the same error as did the High Court when it found no evidence that the respondent was engaged in a moneylending business, which is another way of saying that the appellants led no evidence at the trial to discharge their burden of proving that the respondent was carrying on the business of moneylending.”
“This is wrong because by the reversal of the onus of proof by s. 10OA of the Moneylenders Act 1951, the burden was not on the appellants to prove that the respondent was carrying on the business of moneylending. Rather, the burden was on the respondent to prove to the contrary that it was not carrying on the business of moneylending.” - Per Abdul Rahman Sebli CJ in Triple Zest Trading & Suppliers & Ors v. Applied Business Technologies Sdn Bhd  10 CLJ 187
“We are inclined to agree with the position adopted by the appellant. We agree that a declaration as to the jurisdiction of the Disciplinary Committee can appropriately be sought before the court to determine the correctness of the Disciplinary Board’s findings regarding the DC’s jurisdiction before the DC’s hearing. A declaration regarding the DB’s decision would be flexible enough and not so intrusive to disturb the adjudicative functions of either the DB or the DC.”
“The declaration would shed much needed clarity and certainty on how parties ought to conduct the matter moving forward. In this manner, the court would not be interfering with the adjudicative functions of the DB and DC by way of injunction but the court would be able to make practical and meaningful declarations as to the jurisdiction of the DC in view of the DC’s statutory breaches.”
“We agree with the appellant’s reliance on the principle that the availability of a statutory mechanism is no bar to a declaration.” – Per Azimah Omar JCA in Tania Scivetti (Pemilik Tunggal, Messrs Scivetti & Associates) v. Majlis Peguam & Ors  9 CLJ 536
“In such a case where the defamatory statements contain multiple levels of Chase Level imputations, the court cannot simply take an ‘aggregate’ and simply accept one uniform Chase Level justification to justify all levels of Chase Level imputations. This is not a case where a defamatory statement is capable of multiple meanings, either lesser or more serious. This is a case where there was a plethora of statements in which different statements were clear in its different levels of Chase imputations. In such a case, it would be unjust to absolve the respondent if he only succeeded to prove a Chase Level 3 justification (for a call for investigation) when there are clear defamatory statements which were Chase Level 1 imputation (for alleging the very guilt of committing the serious act).”
“The necessary extent of ‘truth’ required for a successful defence of justification must commensurate and correspond with the Chase Level imputation of the defamatory statement. Thus, since the respondent’s defamatory statements are of the highest Chase Level 1 imputation, then the truth he must prove is the allegation of guilt itself. He cannot resile from his statement of guilt, just to cower behind the ‘lesser truth’ of a supposed call for an investigation into the commission of the serious act. We find great guidance in the insightful words of S Nantha Balan J (now JCA) in the case of Khairul Azwan Harun v. Mohd Rafizi Ramli  9 CLJ 858:  Thus the approach and proof of the defence of justification in respect of each of the different levels of meanings is different: (a) in a Chase Level 1 meaning where the allegation is made with the highest degree of certitude then the imputation of guilt must be defended”. – Per Azimah Omar JCA in Abdul Azeez Abdul Rahim v. Lim Guan Eng  9 CLJ 513
“We cannot see how selling the unredeemed pledges is a part of the pawnbroking business based on the following grounds: (i) the transaction of pawnbroking business concludes once the article becomes the possession of the pawnbroker in the event of the failure by a pawner to redeem the article. The pawnbroker's possession of the unredeemed pledges is automatic if it is valued below RM200 and for articles above RM200, it must go through the auctioning process as stated in s. 23 of the Pawnbrokers Act 1972; (ii) the selling of unredeemed pledges constitutes a distinct and separate business, namely, the selling of second-hand goods. It occurs after the pawnbroking transaction has ended and thus does not fall under the purview of pawnbroking business; (iii) by interpreting the Act purposively and by taking into consideration its preamble, it is our considered opinion that the underlying aim of the Act is not confined to solely safeguarding the interests of the pawner, but extends to the protection of the safety and security of the items that are pledged as collateral. This objective resonates with the provisions of s. 16(3) of the Act, which unequivocally proscribes the sale of unredeemed pledges to customers within the same premises.”
“The lawmakers have circumscribed pawnbrokers from engaging in any other business activities apart from pawnbroking within the same location as the pawnshops, with the sole intent of ensuring that they operate in a manner that is transparent, secure, and aboveboard. For the reasons stated, we find and hold that the selling of unredeemed pledges in the business premises of the pawnbroker cannot be included as part of the pawnbroking business.” – per Supang Lian JCA in Kedai Pajak Shin Ngien Sdn Bhd v. PP  7 CLJ 200
( as of 20 November 2023)
(as of 17 October 2023)
- PU(A) 198/2019
National Skills Development (Waiver of Fee to Accredited Centre) Regulations 2019
- PU(A) 49/2016
Malaysia Deposit Insurance Corporation (First Premium and Annual Premium in Respect of Insurer Members) Order 2016
- PU(A) 496/2012
Malaysia Deposit Insurance Corporation (Differential Premium Systems in Respect of Insurer Members) Regulations 2012
- PU(A) 28/2011
Malaysia Deposit Insurance Corporation (Annual Premium and First Premium in Respect of Deposit-Taking Members) Order 2011
- PU(A) 34/2011
Malaysia Deposit Insurance Corporation (Differential Premium Systems in Respect of Deposit-Taking Members) Regulations 2011
- ACT 849
The Titular Superior Of The Brothers Of Saint Gabriel (Incorporation) Act 1957 (Revised-2023)
- ACT 848
Fees (Department Of Broadcasting Malaysia) (Validation) Act 2023
- ACT 847
Revision Of Sentence Of Death And Imprisonment For Natural Life (Temporary Jurisdiction Of The Federal Court) Act 2023
- ACT 846
Abolition Of Mandatory Death Penalty Act 2023
- ACT 845
Finance Act 2023
- PU(A) 372/2023
Road Transport (Prohibition Of Use Of Road) (Federal Roads) (No. 23) (Revocation) Order 2023
- PU(A) 371/2023
Road Transport (Prohibition Of Use Of Road) (Federal Roads) (No. 20) (Amendment) Order 2023
- PU(A) 370/2023
Feed (Manufacture And Sale Of Feed Or Feed Additive) (Amendment) Regulations 2023
- PU(A) 369/2023
Federal Roads (Private Management) (Collection Of Tolls) (Setiawangsa-Pantai Expressway) (Amendment) Order 2023
- PU(A) 368/2023
Insolvency (Applicant For Registration Of Nominee) Order 2023
- PU(B) 535/2023
Results Of Contested Election And Statement Of The Poll After The Official Addition Of Votes For The By-Election Of P.040 Kemaman
- PU(B) 534/2023
Notice To Third Parties
- PU(B) 533/2023
Notification Under Subsection 76(1)
- PU(B) 532/2023
Reservation Of Land For Public Purpose
- PU(B) 531/2023
Appointment Of Members Of The National Education Advisory Council
- Bills 2022
- Government Of Kelantan Gazette - Syariah Criminal Code (Ii) (1993) 2015
- Legislation: An Overview
- Legislation: FAQs
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- Sulu case: Spanish arbitrator Stampa to face criminal charges in Madrid on Dec 11 - Azalina 10/11/2023
by Justice Choo Han Teck**
This article looks back to the changes to the way law was practised in the days before the technological boom. The way we work will always keep changing. The name for that is progress; but we have never experienced so vast and rapid changes as we have in the past quarter of a century. This article is a reminder That we must not resist change, but at the same time, we must be mindful of the greater and deeper impact that change brings in each instance.
Lawyers in 1819 might have better knowledge of the history of the common law. They might have learnt more studiously of the tyranny of the forms of action, which would have been to them, recent history. There was a time, when a plaintiff who wished to sue in trespass, debt, and detinue would have to file separate claims using a different form. The term "detinue" is hardly understood by the modern-day lawyer, much less assumpsit, for we have now the modern law of contract and unjust enrichment to occupy our imagination when considering monetary claims. The old courts of the King's Bench, the Court of Common Pleas, and their respective jurisdictions made small fortunes for those who know their way around this common law labyrinth.
THE CASE OF CCH & ANOTHER V. REGISTRAR GENERAL OF BIRTHS AND DEATHS*
by Mendy Ong Sze Yen**
For years, the issue of citizenship for stateless abandoned newborn children has been a matter of concern in Malaysia, prompting calls for reform. Stateless children are deprived of the rights enjoyed by Malaysian citizens, including access to education, healthcare and property ownership. However, the Federal Court's ruling in the case of CCH & Anor v. Pendaftar Besar bagi Kelahiran dan Kematian, Malaysia ('CCH') in November 2021 is perceived as a positive step by the court to mitigate the challenges faced by these children. It is seen as a move towards addressing some of the hardships endured by stateless abandoned newborn children.
by Zulhazmi Yusof[i] Hartini Saripan[ii] Sheela Jayabala Krishnan@Jayabalan[iii]
Smart contracts employ several modern technologies, including Blockchain and digital currency, among other innovations. As a result, users benefit from various advantages of this technology, including transparency, speed, the absence of third-party involvement, decentralisation, and more. Despite much research on smart contracts, very little research has been done to identify and propose a specific solution to remedy the existing gaps, especially on the question of the legality of smart contracts. This study utilised secondary data obtained from scholarly sources such as Google Scholar as well as websites of non-governmental and governmental groups. Furthermore, this research has employed a method of doctrinal legal research through a comparative analysis technique. The research identified many primary legal concerns with the smart contract in terms of its legality. This paper has offered a further understanding of the existing lacuna in the regulatory frameworks in Malaysia. Furthermore, this contributes to the advancement of knowledge in this particular domain, assisting lawmakers and policymakers in revising and implementing new regulatory frameworks for smart contracts.
by Dr Chee Hui Bing*
This article examines the evolution of the death penalty in Malaysia, outlining its historical usage and highlighting the latest legal transformations. The journey begins with a concise history of capital punishment in the country, transitioning into a discussion of the varied perspectives on this contentious issue, both supportive and critical. The narrative then shifts to focus on two pivotal laws enacted in 2023: the Revision of Sentence of Death and Imprisonment for Natural Life (Temporary Jurisdiction of the Federal Court) Act 2023 and the Abolition of Mandatory Death Penalty Act 2023. These Acts represent significant shifts in Malaysia's approach to the death penalty, and their implications, as well as the legal changes they introduce, are thoroughly explored.
by Nehaluddin Ahmad[i] Siti Nurhazimah Emlan[ii]
This critical discussion explores the intricate nexus between genocide, ethnic cleansing and international law which delves into the intricate interplay between these grave offences and the framework of international law. The study commences by underlining the historical and contextual significance of the subject matter and outlining its purpose and scope. The exploration of genocide and ethnic cleansing is nuanced through definitions, distinctions, and historical case studies, shedding light on their gravity across various eras. The international legal backdrop takes centre stage, featuring the Genocide Convention and other relevant treaties. However, the legal definitions' critical scrutiny reveals inherent ambiguities and limitations. The discourse navigates the evolution and application of the Responsibility to Protect ('R2P') concept, emphasising the international community's role in thwarting these crimes. Enforcement mechanisms, exemplified by the International Criminal Court ('ICC'), uncover challenges in holding perpetrators globally accountable. By dissecting historical cases, including the Holocaust, the Rwanda Genocide, and the Balkans Conflict, the study underscores the legal implications of these atrocities.
Malaysia's public healthcare sector risks losing even more professionals if the Health Ministry refuses to take immediate measures to improve their livelihoods. Government healthcare workers, upset with the ministry's decision to reject the proposal to increase on-call allowances, told the New Straits Times that they were overworked and severely underpaid. Speaking on the condition of anonymity, one medical officer (MO) said they were bogged down with work, going as far as describing the workload as "crazy". "I've never experienced an increase in allowances ever since I was a houseman in 2016.
Some 1.5 million jobs are expected to be created in Sarawak up to the year 2030, said Deputy Premier Datuk Amar Douglas Uggah Embas.
He said these jobs will be generated by the many programmes and plans of the state’s Post Covid-19 Development Strategy (PCDS) 2030, of which one of its objectives is to increase the people’s income.
“Out of the total (1.5 million jobs), about 200,000 would be in the technical or skill sector. I have been told that Petros, as the third largest oil and gas company in the country, will need 20,000 technicians or skilled workers.
The Canadian government has presented a sustainable jobs bill intended to prepare workers for a transition to a lower-carbon economy following years of consultation and opposition from Alberta, Canada’s main fossil-fuel producing province.
Canada, the world’s fourth-largest oil producer and sixth-largest natural gas producer, has aimed for a 40 percent to 45 percent reduction in emissions by 2030 and net zero by 2050.
As many as 4.5 million Malaysians are likely to lose their jobs by 2030, if they do not improve their skills or attend reskilling and upskilling programmes with the rise of artificial intelligence (AI).
Human Resources Minister V. Sivakumar said this is based on the 2020 World Economic Forum warning that AI could cause a recession in the job market as it is already being used to automate tasks in various industries including manufacturing, healthcare and customer service.
The Employees Provident Fund yesterday explained that the pension-fund like approach of a monthly drawdown ,still under works, is for a portion of member's savings, up to a certain limit, to be converted into a monthly income.
The remaining portion can be withdrawn lump-sum.
EPF said this is needed to prevent old-age poverty and for consumption smoothing during retirement.
The process of formalising the proposed monthly withdrawal mechanism is still being studied and will take into account the ability and readiness of members to make such transition.
The EPF has been encouraging members to voluntarily shift to regular monthly payout rather than lump-sum withdrawals.