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SIVANESAN ACHALINGAM v. PATHMANATHAN KUPPUSAMY;
MAJLIS PEGUAM (INTERVENER)
COURT OF APPEAL, PUTRAJAYA
YAACOB MD SAM JCA; RAVINTHRAN PARAMAGURU JCA; HASHIM HAMZAH JCA
[CIVIL APPEAL NO: W-02(A)-561-03-2021]
01 DECEMBER 2022

(i) The proper filing of Forms A and B will determine whether the representative of either party has the locus standi to appear before the court, in this case, the Industrial Court, as that party's representative. A failure to do so would mean that the solicitor is not representing the aggrieved party and is therefore not obligated to inform the latter of the trial dates of the case; (ii) Although it is trite that the standard of proof to establish misconduct is beyond reasonable doubt, a disciplinary proceeding is not subject to the rigid and strict adversarial procedures in criminal trials.

HEMRAJ & CO SDN BHD v. TENAGA NASIONAL BHD
FEDERAL COURT, PUTRAJAYA
ABDUL RAHMAN SEBLI FCJ; ZABARIAH MOHD YUSOF FCJ; HASNAH MOHAMMED HASHIM FCJ
[CIVIL APPEAL NO: 02(f)-65-11-2021(W)]
13 DECEMBER 2022

A non-delegable duty of care, a no fault strict liability tort, must be imposed only in the most exceptional circumstances. Routine excavation works carried out by homeowners through independent contractors could not be described as an extraordinarily hazardous activity, thereby, the homeowner could not be held to owe a non-delegable duty of care to a public utilities company for the negligence of the independent contractors. As a matter of policy, to hold that routine residential construction works are subject to non-delegable duty would expose homeowners to an indeterminate liability for the tortious acts of their independent contractors, whose manner of work are beyond their control.

BSM lwn. BAA & SATU LAGI
MAHKAMAH TINGGI MALAYA, TEMERLOH
ROSLAN MAT NOR PK
[SAMAN PEMULA NO: CB-24F-12-08-2022]
07 DECEMBER 2022

(i) Tiada undang-undang khusus di Malaysia tentang bidang kuasa mahkamah untuk mengarahkan seseorang menjalankan ujian DNA demi penentuan nasab. Walaupun apa-apa prinsip undang-undang yang terpakai di United Kingdom boleh diguna pakai di Malaysia, tertakluk pada pematuhan ketat s. 3(1) Akta Undang-undang Sivil 1956, prinsip undang-undang keluarga dalam bidang kuasa lain berkaitan nasab tidak sesuai diguna pakai dalam sistem perundangan di Malaysia untuk memutuskan kes ini.

SYED ISKANDAR SYED JAAFAR v. KERAJAAN MALAYSIA & ORS
HIGH COURT MALAYA, KUALA LUMPUR
WAN AHMAD FARID SALLEH J
[ORIGINATING SUMMONS NO: WA-24-63-11-2020]
05 JULY 2022

The constitutional question sought to be referred to the Federal Court, in this case, pertaining to the application of the doctrine of basic structure, in light of the conflicting Federal Court decisions on the same, would have a direct bearing on the matter of dispute before the High Court; having the implication of bringing the dispute to an end without further deliberation by the High Court, hence depriving the parties of the right of appeal. The application, if allowed, would also render the Federal Court to assume original jurisdiction not anticipated under art. 128(1) of the Federal Constitution.

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JUDICIAL QUOTES

"The structure of the legal detentive power in s. 3 of the Dangerous Drugs (Special Preventive Measures) Act 1985 is expressed to be sequential in nature. The inference to be drawn from the provisions of s. 3 is clear. Parliament acknowledges the drastic power given to restrict the liberty of a subject without having to bring him to a court and has put in place safeguards by expressly providing that this power or arrest is placed in the hands of a police officer with the rank of at least that of an inspector, and authority for each incremental period of detention having to be sought from a correspondingly higher authority up till that of the Minister. Each sequential progression must be scrupulously complied with by those entrusted with such power and the exercise of this power within the framework of the preventive detention laws in the DDSPMA is objectively justiciable.

In the instant case, whilst the element of having associated or is being involved in trafficking in dangerous drugs activities together with a substantial body of persons is present for the applicant's further detention for a further 14 days pursuant to s. 3(2)(c) of the DDSPMA, however, this element for purposes of his arrest, as well as his subsequent detention for more than 24 hours, followed by a further 48 hours was noticeably absent. It follows that his arrest and his subsequent detention is unlawful." – per Su Tiang Joo JC in Vegnesh Ramnaidu v. Ketua Polis Negara, Malaysia & Anor [2022] 10 CLJ 981

Having scrutinised the provisions of ss. 80(8) & (9) of the LPA and the CF Rules, we do not find any provision therein that gives the respondent the power to issue any guidelines restricting the application of the provisions in ss. 80(8) & (9) of the LPA and make it applicable only to the dishonesty of a certain class of advocates and solicitors, ie, sole proprietors. It is our considered view that the respondent does not have such powers to issue the guidelines and whittle down the ambit of ss. 80(8) & (9) of the LPA and restrict the claims only to acts of dishonesty of advocates and solicitors who are sole proprietors.

In fact, we found that the respondent does not have powers to issue any guidelines in the nature of the guidelines at all. In order to issue such guidelines, there must be express provision in the LPA authorising the respondent to issue them. However, there is no such express power found in the LPA.

At best, the respondent can only make rules pursuant to s. 80(12) of the LPA, and that too for the limited purposes stated therein, which is in respect of procedure for making a claim from the compensation fund. Such rules must be confined to procedural matters and cannot affect substantive rights of parties. - per Vazeer Alam Mydin Meera JCA in Michael Joseph Carvalho & Anor v. Majlis Peguam Malaysia [2022] 9 CLJ 849

“In comparison to the facts in PP v. Rosmah Mansor [2022] 9 CLJ 83, in that case the first delivery of RM5 million in cash on 20 December 2016 was split into two bags of RM2.5 million each. For the second delivery of RM1.5 million, the monies were put into two knapsacks. In the present case, the prosecution did not produce any sample envelope. No evidence was led to show the size of the envelope used. I simply cannot imagine what envelope in what size could fit the SGD600,000 in cash which was equivalent to around RM1.6 million at the material time. Surprisingly, PW17, the creator of the ledger admitted during cross-examination that the second delivery of RM3 million in cash by way of a luggage was an afterthought. This admission of afterthought by the key prosecution witness ie, PW17 is more than sufficient for me to find that PW17 was with zero credibility.

To further support my finding, PW17 on one hand testified that he would record the payments on the same day or the next day of payment, however it has been shown that most of the 'remark' columns in the ledger were left blank. PW15 further agreed that the blank 'remark' columns do not show that the monies were paid to the accused. The blank 'remark' columns give rise to a possible inference as suggested by the defence that the monies could have been distributed among the three of them ie, PW15, PW16 and PW17 as they maintained a luxurious lifestyle. Each of PW15, PW16 and PW17 had one unit of property in Pavilion, PW16 also owned one bungalow house in Putrajaya, one semi-detached house in Cyberjaya, two Range Rovers, expensive motorcycles and tax payment in millions. Without strong evidential support, I simply cannot consciously make a finding that the monies were in fact received by the accused as suggested by the prosecution.” – per Mohd Yazid Mustafa J in PP v. Ahmad Zahid Hamidi [2022] 9 CLJ 713

“We now offer a number of observations. First, these cases demonstrate that whilst the application of the maxim ex turpi causa non oritur actio means that public policy would defeat any claim which is premised on illegality, a balance must still be drawn based on the specific facts and circumstances of each case.

Secondly, the application of the said maxim to cases of tortious liability is very limited. We are not aware, and neither have we been referred to any case authorities in our jurisdiction which clearly hold that the non-compliance with the said provisions under the RTA (Road Transport Act 1987) are a form of illegality in respect of which public policy would deny the claimant (wrongdoer vis-à-vis the RTA) from pursuing his right to claim compensation for the tortious liability of the negligent party.

Thirdly, there is no denying that, as mentioned earlier, case law authorities are unequivocal in affirming the position that the absence of driving licence, road tax and insurance does not make a motorist negligent.” - per Mohd Nazlan Ghazali JCA in Ahmad Zulfendi Anuar v. Mohd Shahril Abdul Rahman [2022] 9 CLJ 307

“Otherwise, the constitutional right to freedom of expression would be rendered illusory. It would even imperil academic research. In this context, we note that the Minister had disagreed with the view expressed in the comic book that diplomatic relations between the Ming Dynasty of China and the Malacca Sultanate enabled the latter to prosper.” – per Ravinthran Paramaguru JCA in Hew Kuan Yau v. Menteri Dalam Negeri & Ors [2022] 8 CLJ 880

More Judicial Quotes

UPDATED
( as of 04 January 2023)

ACT 791
Tourism Tax Act 2017
ACT 807
Service Tax Act 2018
ACT 806
Sales Tax Act 2018
ACT 176
Excise Act 1976
ACT 235
Customs Act 1967 (Revised 1980)

REVOKED
(as of 25 January 2023)

PU(A) 370/2022
Ministers of the Federal Government Order 2022
PU(A) 373/2022
Price Control and Anti-Profiteering (Determination of Maximum Price) (No. 15) Order 2022
PU(A) 286/2022
Road Transport (Prohibition of Use of Road) (Federal Roads) (No. 15) Order 2022
PU(A) 224/2022
Price Control and Anti-Profiteering (Price Marking of Price-Controlled Goods) (No. 7) Order 2022
PU(A) 282/2022
Price Control and Anti-Profiteering (Determination of Maximum Price) (No. 10) Order 2022

PRINCIPAL

ACT 841
Pensions Act 1951 (Revised 2022)
ACT 840
Anti-Sexual Harassment Act 2022
ACT 839
Independent Police Conduct Commission Act 2022
ACT 838
Housewives' Social Security Act 2022
ACT 837
Malaysian Border Security Agency (Dissolution) Act 2022

AMENDING

ACT A1678
Consolidated Fund (Expenditure On Account) Act 2022
ACT A1677
Free Zones (Amendment) Act 2022
ACT A1676
Goods Vehicle Levy (Amendment) Act 2022
ACT A1675
Windfall Profit Levy (Amendment) Act 2022
ACT A1674
Departure Levy (Amendment) Act 2022

PUA

PU(A) 27/2023
Ministers Of The Federal Government Order 2023
PU(A) 26/2023
Printing Presses And Publications (Control Of Undesirable Publications) (No. 3) Order 2023
PU(A) 25/2023
Printing Presses And Publications (Control Of Undesirable Publications) (No. 2) Order 2023
PU(A) 24/2023
Printing Presses And Publications (Control Of Undesirable Publications) Order 2023
PU(A) 23/2023
Electricity Supply (Authorization To Be A Single Buyer In The Federal Territory Of Labuan) Order 2023

PUB

PU(B) 26/2023
Declaration Under Section 3
PU(B) 25/2023
Results Of Contested Election And Statements Of The Poll After The Official Addition Of Votes Parliamentary Constituencies For The State Of Selangor - Corrigendum
PU(B) 24/2023
Results Of Contested Election And Statements Of The Poll After The Official Addition Of Votes State Constituencies For The State Of Perak - Corrigendum
PU(B) 23/2023
Notice Under Section 70
PU(B) 22/2022
Notice To Third Parties

BILLS, etc.

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Thai court orders wanted Malaysian businessman deported to China 19/01/2023
Actor Sharnaaz Ahmad pleads not guilty to assault 18/01/2023
Gobind: RM2 million 'chocolate for big boss' meant Najib, not Guan Eng 18/01/2023
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More Legal News

ARTICLE HIGHLIGHTS

IS IT TAXING OR INADEQUATE COMPENSATION THAT IS UNCONSTITUTIONAL?
by TUN ABDUL HAMID MOHAMAD*

On 9 December 2022, a five-member bench of the Federal Court led by Chief Justice Tun Tengku Maimun Tuan Mat held that art. 13(2) of the Constitution. But, where as I humbly submit, it may or may not, depending on the way the assessment is made, there is no necessity and no justification to strike down the section. That is besides the other grounds I have forwarded above.

Now, think of the consequences. I cannot think of a way of reversing it. IRB cannot issue a fresh assessment in another case even against a different landowner hoping to get a chance to reopen the issue, because the law enabling a similar assessment has been struck down as unconstitutional.

Is this another example of abuse of judicial review? See "Should the Industrial Court not be allowed to be what it was intended to be?" (4 March 2008). Is this another example of the Judiciary encroaching the powers of Parliament? - see "Not for judges to rewrite the Constitution (12 06 2017), "No judge is a Parliament" (30 March 2018); "Who is encroaching whose jurisdiction, Parliament or courts?" (16 December 2019), "Bapa" juga bermaksud "Ibu": Hakim mengambil alih kuasa Parlimen dan Majlis Raja-Raja" (23 September 2021).

Another point I wish to make is that, in a case where the validity of a law is challenged on the ground that it is unconstitutional, the Attorney General should intervene. It should not be left to the party sued, to defend it. The effect is far-reaching, not just between the two parties in that particular case. Valid grounds may be missed resulting in permanent consequences, as in this case.

THE USE OF CHATGPT-3 IN THE ARBITRATION INDUSTRY IN MALAYSIA:
LEGAL AND ANALYTICAL OVERVIEW
by Mohamad Fateh Labanieh^[i] Hussein Alaa Al-Azzawi^[ii]

Arbitration is the most widespread mechanism for resolving disputes in the modern and Islamic eras. The current global tendency calls for an increase in the integration of disruptive technology, such as artificial intelligence (AI), into arbitration. This article uses doctrinal legal research methodology to examine the use of Generative Pre-trained Transformer 3 (ChatGPT-3). To achieve that, primary and secondary sources of data are used. The collected data was analytically and critically analysed using the content analysis method. It is found that AI technologies, such as ChatGPT-3 would bring added value to arbitration if they are appropriately employed. However, from a legal perspective, arbitration laws are not mature enough to absorb AI technologies, such as ChatGPT-3. Finally, this article recommends that designing or developing an AI application similar to ChatGPT-3 by the Malaysian relevant authority in general and AIAC in specific would be a coherent milestone for the arbitration industry in Malaysia to be among the well-known international arbitration industry; it would attract more disputes to AIAC.

DATO' V KANAGALINGAM v. DAVID SAMUELS & ORS — REVISITED*
by Kong Xin Qing^[i] Ezzamel Zarif bin Ahmed Zaharani^[ii]

INTRODUCTION

The judgment of Justice Hishamudin Yunus in Kanagalingam^[1] was unprecedented and sent shock waves to the legal fraternity, as the learned judge courageously chose to adopt the decision of the Court of Appeal^[2] (Ayer Molek COA) over that of the Federal Court^[3] (Ayer Molek FC) in the case of Ayer Molek. He held that the Federal Court's panel in Ayer Molek FC was constitutionally incompetent, having violated both the Federal Constitution and the statutory provisions of the Courts of Judicature Act 1964 ('CJA'). Therefore, no valid judgment could be rendered by a panel that was unconstitutionally and unlawfully constituted.

Justice Hishamudin's decision fundamentally raises two important questions of law, namely, the concept of stare decisis and quorum failure. In this article, his decision in Kanagalingam will be reviewed in light of these two legal principles.

WHO IS A PUBLISHER?
CASE NOTE: GOOGLE LLC v. DEFTEROS [2022] HCA 27 (17 August 2022)⁺
by Parisa Hart*

Barrister Parisa Hart outlines a recent case where the High Court was asked to determine whether Google could be considered the publisher of a defamatory article by providing a hyperlinked search result to that article.

The majority of the High Court held that Google was not the publisher of the defamatory material accessed by it providing internet search engine results which linked to a webpage on The Age website, and which contained the defamatory matter.

George Defteros (the Respondent) is a Melbourne criminal lawyer who acted for persons who became wellknown during Melbourne's 'gangland wars' including Alphonse Gangitano, Dominic 'Mick' Gatto, and Mario Condello. In 2004, Defteros and Condello were charged with conspiracy to murder and incitement to murder Carl Williams, his father George Williams, and Carl Williams' bodyguard. However, in 2005 the Director of Public Prosecutions dropped the charges against him.

KEBOLEHTERIMAAN KOMUNIKASI MELALUI APLIKASI
by Ramalinggam Rajamanickam^[i] Jason Cheong Kah Lok^[ii] Intan Noor Asyikin Muhammad^[iii] Nurul Syadatul Nadiah Tokiran^[iv] Siti Nur Suhaili Abdul Haris^[v] Muhd Zamharir Muhammad Zuhid^[vi]

ABSTRAK

PENGENALAN

Pada masa ini, kemajuan teknologi telah banyak mengubah cara manusia berhubung antara satu sama lain. Misalnya, pada zaman dahulu, manusia berhubung secara surat-menyurat dan bersemuka sahaja sedangkan pada masa kini, pelbagai medium baharu diperkenalkan, terutamanya komunikasi dalam talian yang sangat berkesan dalam menjimatkan masa dan mengurangkan kos untuk berhubung sesama manusia. Ekoran daripada permintaan yang tinggi terhadap komunikasi dalam talian, pelbagai aplikasi diperkenalkan, termasuklah aplikasi paling popular yang hampir semua pemilik telefon pintar pasti akan memuat turunnya, iaitu aplikasi "WhatsApp Messenger." Buktinya, statistik daripada laman web, The Statistics menunjukkan bahawa setakat Disember 2017, terdapat 1.5 bilion pengguna aktif aplikasi ini di seluruh dunia.^[1]

"WhatsApp Messenger" sebenarnya ialah suatu aplikasi pesanan mesej yang menggunakan sambungan Internet telefon pintar bagi membolehkan pengguna menghantar dan menerima pesanan mesej, audio, gambar dan dokumen kepada kenalan mereka.^[2] Penggunaan secara meluas aplikasi ini dalam kehidupan seharian manusia telah menjadikannya medium untuk urusan-urusan biasa, seperti menempah barang dan menghantar bukti resit pembayaran. Jadi, tidak hairan sekiranya komunikasi dalam "WhatsApp Messenger" ini dikemukakan sebagai suatu keterangan bagi menyokong atau membantah hujah mana-mana pihak dalam sesuatu kes.

GLOBAL NEWS

LABOUR MARKET CONTINUES RECOVERY, NUMBER OF UNEMPLOYED DIPS TO 600,900

Employment
The labour market is on a steady path to recovery with the unemployment rate in the country showing a downward trend with only 600,900 persons in November 2022, compared with 602,000 in October 2022, said the Department of Statistics Malaysia (DOSM). Chief statistician Datuk Seri Dr Mohd Uzir Mahidin in a statement on Tuesday (Jan 10) said the unemployment rate remained at 3.6%, claiming the positive outlook was because of the development of current economic activities in the country. “In November 2022, the labour market further strengthened in line with the development of current economic activities. Thus, the labour force situation continued to expand during the month, with an increase in the number of employed persons, while the number of unemployed persons dropped,” he said.

PROMPT ACTION TO BRING IN FOREIGN WORKERS EASING BOTTLENECKS FACED BY BUSINESSES, SAYS MALAYSIAN EMPLOYERS FEDERATION

Employment
The prompt action to bring 373,459 foreign workers into the country via visa by reference based on employers’ applications from January to Dec 4, 2022 has eased the bottlenecks faced by businesses in their daily operations, and assist them to meet their business requirements. The said figures are part of the overall 403,869 applications received by the Immigration Department. Malaysian Employers Federation (MEF) president Datuk Dr Syed Hussain Syed Husman said the assurance given by Home Minister Datuk Seri Saifuddin Nasution Ismail — that the remaining 30,410 employers’ applications for foreign workers will be processed and be considered for approval within seven working days — is indeed very assuring. “It shows Saifuddin’s seriousness in addressing the issues faced by employers due to shortages of foreign labour.”

EMPLOYMENT IN SINGAPORE EXPANDS IN Q3 BUT RETRENCHMENTS GO UP, LED BY TECH FIRM LAYOFFS

Employment
The labour market in Singapore continued to improve in the third quarter of this year, but the Ministry of Manpower (MOM) warned of early signs that the momentum was easing in its latest report on Thursday (Dec 15). Retrenchments were also up slightly from the previous quarter, with tech firms laying off more workers. Total employment continued to expand by 75,900 in the third quarter, which was more than the 66,500 in the previous quarter. It is now 1.7 per cent above the 2019 level. The number of non-residents workers increased by 71,100, while resident employment went up by 4,800.

META STAFF CAME TO SINGAPORE ON EMPLOYMENT PASSES ONLY TO BE RETRENCHED MONTHS LATER

Employment

More than a month after they were laid off, ex-Meta employees who arrived in Singapore on employment passes are scrambling to find jobs to stay in the country. Two former employees affected in the global cut involving 11,000 Meta staffers told CNA that they came to make a life in Singapore earlier this year, only to be retrenched months later with no resolution in sight in a tough job market. Advertisement On Nov 9, Meta's chief executive Mark Zuckerberg told employees that the Facebook parent was reducing its workforce by 13 per cent, cutting discretionary spending and extending its hiring freeze through the first quarter of next year. When CNA approached Meta for comment last month, a spokesperson declined to say more.

600 LETTER OF CONSENT HOLDERS IN SINGAPORE MEET THE CURRENT SALARY CRITERIA FOR EMPLOYMENT PASS

Employment
Singapore's Minister for Manpower Dr. Tan See Leng has recently addressed a Parliamentary query on the number of workers with a Letter of Consent employed in jobs with a job scope or salary equivalent to Employment Pass (EP) holders, S Pass holders, and Work Permit holders. For better understanding, since 1 May 2021, Dependant's Pass holders in Singapore have had to obtain a relevant work pass instead of a Letter of Consent (LOC) to work in Singapore. As such, the majority of the LOC holders at present are dependants of Singapore citizens and Permanent Residents who are holding a Long-Term Visit Pass (LTVP) or LTVP-Plus, and working on either an LOC or pre-approved LOC (PLOC).

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