MAGENDRAN GUNASEKHARAN lwn. MATTEL (MALAYSIA) SDN BHD
MAHKAMAH PERUSAHAAN, PULAU PINANG
RUSITA MD LAZIM
AWARD NO. 24 OF 2024 [NO. KES: 9-4-781-21]
3 JANUARI 2024
Satu-satu kes gangguan seksual di tempat kerja boleh disabitkan berdasarkan keterangan tanpa memerlukan keterangan sokongan sekiranya keterangan pengadu tersebut kredibel, tidak tercabar dan berjaya membuktikan secara jelas kesalahan seksual tersebut. Di samping itu, tiada keperluan untuk pengadu/mangsa kes gangguan seksual di tempat kerja untuk membuat laporan polis, berbanding kes-kes seumpamanya di mahkamah jenayah; ini bergantung pada budi bicara dan pilihan mangsa itu sendiri.
SRI DATAI MINING SDN BHD v. GELINGGAS JAMES WATT & ORS
HIGH COURT SABAH & SARAWAK, SIBU
WONG SIONG TUNG J
[CIVIL APPEAL NO: SBW-11B-2-5-2023]
13 DECEMBER 2023
(i) If a claimant does not fall within the definition of an 'employee' under the Labour Ordinance (Sarawak) (Cap. 76) ('SLO'), any right to security of tenure guaranteed by the SLO and provisions thereunder would not apply to such claimant. To determine whether a claimant is an 'employee' under the SLO, the paramount considerations are the claimant's remuneration level and whether the claimant is involved in 'manual labour', as defined in s. 2(a) of the Schedule to the SLO; (ii) Allowances do not negate an employee's entitlement to and from receiving overtime pay; (iii) Under s. 14(1) of the SLO , employees are conferred a statutory right to undergo a due inquiry, to be conducted by an employer before any dismissal.
INTERNATIONAL NATUROPATHIC BIO-TECH (M) SDN BHD v. KETUA PENGARAH HASIL DALAM NEGERI
COURT OF APPEAL, PUTRAJAYA
S NANTHA BALAN JCA; MOHD NAZLAN GHAZALI JCA; CHOO KAH SING JCA
[CIVIL APPEAL NO: W-01(A)-732-12-2021]
30 NOVEMBER 2023
(i) The conduct of a taxpayer is an important consideration in determining whether the properties in question are for investment or trading purposes; (ii) A grievance against an alleged non-consideration of evidence by the Special Commissioner of Income Tax ('SCIT') could not succeed as it has always been recognised as a reasonable presumption that the findings of the SCIT would take into consideration all the evidence and contentions of the parties notwithstanding that such specific evidence or contention may not be expressly stated as such in the grounds of decision of the SCIT; (iii) Generally, long period of ownership before disposal would more likely be regarded as an investment. This, however, depends on the circumstances of each case with the application of the interplay of the elements of the badges of trade.
TAN WEI MIA & ORS v. PENTADBIR TANAH DAERAH GOMBAK
HIGH COURT MALAYA, SHAH ALAM
FAIZAH JAMALUDIN J
[LAND REFERENCE NO: RS-15-85-95]
20 DECEMBER 2023
Pursuant to the Land Acquisition Act 1960, the National Land Code and the Town and Country Planning Act 1976, the question of zoning is relevant to the determination of the market value of scheduled lands as at the date of the gazette notification. In this case, as there was no local plan published and/or gazetted by the local planning authority, there was thus no zoning of the area in which the scheduled lands were located as at the time of the acquisition in 1994. Accordingly, the scheduled lands were not deemed as building land with commercial status or commercial purposes as at the date of the gazette notification.
- PP lwn. Prakash Rajagopal & Anor  CLJU 251 [CA]
- Robinder Singh Jaj Bijir Singh v. Jasminder Kaur Bhajan Singh  CLJU 206 [FC]
- Nik Elin Zurina Nik Abdul Rashid & Anor v. Kerajaan Negeri Kelantan  CLJU 232 [FC]
- Mohd Hafiz Mohamad v. PP  CLJU 167 [CA]
- Rhb Bank Berhad v. Tan Leong Huat  CLJU 169 [CA]
- Azinal Sdn Bhd v. Jannath Gani & Ors & Other Appeals  CLJU 166 [CA]
- Airbus Helicopters Malaysia Sdn Bhd v. Aerial Power Lines Sdn Bhd  CLJU 168 [CA]
- Hong Leong Yamaha Motor Sdn Bhd v. Ketua Pengarah Kastam Jabatan Kastam Diraja Malaysia  CLJU 165 [CA]
- Datuk Haji Idris Haji Bujang & Anor v. Ketua Pentadbir Parlimen Malaysia & Ors  CLJU 147 [CA]
- Mohd Razin Razali v. PP  CLJU 120 [CA]
"In my view, if a Court does not wish to compel a litigant to litigate against his will, the Court can still impose the term "without liberty to file afresh on the same matter set out in the present suit" on a plaintiff who comes within Order 21 rule 2 ROC who can discontinue without leave of Court, if the Court finds that the discontinuance is an abuse of the process of the Court. There will be an abuse of the process of the Court if the true purpose for filing the suit is something other than to obtain a remedy provided by law, and the discontinuance of the suit comes after the plaintiff arising from the filing of the said suit has achieved an advantage to the prejudice of the defendant.”
“I have perused the facts. It shows that the withdrawal of the defamation suit is an abuse of process as the plaintiff arising from the filing of the suit has already obtained a substantial advantage to the prejudice of the defendant....”
“It is therefore right that the Court can and should impose the term "without liberty to file afresh on the same matter set out in the present suit" on the discontinuance by the plaintiff here." - Leong Wai Hong JC in Prof Dato' Dr Rahmat Mohamad v. Shahizad Sulaiman  CLJU 127
“Having appraised fully with the history, facts and evidence of the dispute between the parties, I must not fail to express my anguish and sadness at the way things turned out to be out of what could have been one of Malaysia's best inventions in the world of dentistry. Throughout the course of the proceedings, I found that despite the involvement of some of the best brains from Malaysia's best-ranking university there were far too many shortcomings in the management of the collaboration work. Such project is nothing new to the University. Yet even simple forms were not properly filled up. There were no clear directions and statement of terms and conditions on the role, responsibilities, rights and obligations of the parties involved. I hope the University of Malaya and all the other Malaysian universities would learn from this episode, gather the might to admit their inadequacies and never shy to learn from the best.” - Mohd Radzi Harun J in Veronica Sainik @ Ronald v. Meluha Life Sciences Sdn Bhd & Ors  CLJU 112
"It was imperative to recognise that, as a gainfully employed mother, the petitioner should share the financial responsibility for the child's upkeep, in accordance with s. 93(2) of the Law Reform (Marriage & Divorce) Act 1976."
"In our present-day society, it is crucial to recognise that mothers who are endowed with the ability to generate income, should actively participate in sharing the financial responsibility of providing for their children. This perspective advocates for a more equitable distribution of financial burdens, moving away from the traditional tendency to place the entirety of this responsibility on fathers. To reinforce this standpoint, I found guidance in the wisdom of Hashim Hamzah JC (now JCA) as expressed in the case of Lim Eng Kuan v. Julie Tay Suan Sim  5 CLJ 392." - Per Evrol Mariette Peters J in ACH v. PAY  2 CLJ 223
“That the law was intended only to apply to the enticement of women only is also made amply clear by s. 132 of the CPC cited earlier which states that no court can take cognisance of a s. 498 of the Penal Code offence unless the complaint is lodged by the husband of the married woman. Amending s. 498 to apply to both spouses would also be meaningless without amending s. 132 of the CPC and in this case, no one has addressed the validity of s. 132 even though it is also a pre-Merdeka law capable of being modified under art. 162. In any case, the provision of s. 498 is so intricately drafted that amending it without changing its base Legislative intent is judicially impossible.”
“Thus, while a judicial amendment to s. 498 in the way constitutionally permitted by art. 162(7) would remove the discrimination, that exercise of the amendment would also tantamount to redefining the original purpose of the section to the extent that it would alter the very basis upon which the offence in s. 498 was originally enacted. In our view, doing this would not amount to solely bringing the provision of s. 498 into accord with the FC but to an act of judicial legislation.”
“We are therefore satisfied, based on our reasoning earlier, that the only possible means to bring s. 498 into accord with the FC is to judicially repeal it in its entirety.” - Per Tengku Maimun Tuan Mat CJ in Lai Hen Beng v. PP  1 CLJ 681
“The term “adverse” as found in s. 103D of the LPA refers to a decision, punishment or penalty that affects the advocate and solicitor in a negative way. The Cambridge Advanced Learner's Dictionary & Thesaurus © Cambridge University Press defines 'adverse' as having a negative or harmful effect. Whether a punishment is likely to be adverse or otherwise is very subjective. A minor punishment of a one-day suspension or a nominal fine can be considered as being adverse. Any form of punishment will have an impact on the reputation of an advocate and solicitor and harm his credibility and standing. Hence, even if the DB decides to impose what it may deem to be a lighter penalty or punishment that is less harsh than that recommended by the DC, the decision in our view, qualifies as being adverse, triggering the necessity for a reasonable opportunity to be heard.”
“It seems rather incredulous for the Malaysian Bar Council, an entity advocating justice without fear or favour and a staunch proponent of the principles of the rules of natural justice to deny its own members the very basic but nonetheless important right of hearing and due process. That, indeed, would be a travesty of justice which should not be countenanced.” - Per Hasnah Mohammed Hashim FCJ in Majlis Peguam Malaysia v. Syed Ahmad Imdadz Said Abas & Anor  1 CLJ 353
( as of 21 February 2024)
- ACT 94
Accountants Act 1967 (Revised 1972)
- PU(A) 397/2019
Customs Regulations 2019
- PU(A) 26/1995
Federal Territory of Kuala Lumpur Land Rules 1995
- PU(A) 340/2016
Solicitors’ Remuneration (Enforcement) Rules 2016
- PU(A) 151/2012
Income Tax (Determination of Approved Individual and Specified Year of Assessment Under the Returning Expert Programme) Rules 2012
(as of 08 February 2024)
- PU(A) 332/2010
Water Services Industry (Rates For Water Supply Services) (State of Kedah) Regulations 2010
- PU(A) 290/2022
Excise Duties (Premix Preparation) (Payment) Order 2022
- PU(A) 287/2022
Excise Duties (Amendment) Order 2022
- 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
- ACT 852
Control Of Smoking Products For Public Health Act 2024
- ACT 851
Finance (No. 2) Act 2023
- ACT 850
Public Finance And Fiscal Responsibility Act 2023
- 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
- PU(A) 56/2024
Accountants (Amendment Of First Schedule) Order 2024
- PU(A) 55/2024
Proclamation - Summon Parliament
- PU(A) 54/2024
Proclamation - Prorogue The Parliament
- PU(A) 53/2024
Customs (Amendment) Regulations 2024
- PU(A) 52/2024
Federal Territory Of Kuala Lumpur Land (Amendment) Rules 2024
- PU(B) 64/2024
Reservation Of Land For Public Purpose
- PU(B) 63/2024
Reservation Of Land For Public Purpose
- PU(B) 62/2024
Notice Regarding The Certification And Inspection Of The Supplementary Electoral Roll For The Month Of January 2024
- PU(B) 61/2024
Reservation Of Land For Public Purpose
- PU(B) 60/2024
Appointment And Revocation Of Appointment Of Members And Alternate Members Of The Board
- Bills 2022
- Government Of Kelantan Gazette - Syariah Criminal Code (Ii) (1993) 2015
- Legislation: An Overview
- Legislation: FAQs
- Kedah Immigration busts Myanmar human trafficking ring 21/02/2024
- Labourer sentenced to 10 years in prison for causing death of friend 20/02/2024
- Federal Court affirms legitimacy of vernacular schools 20/02/2024
- MyWatch ex-chairman gets leave to appeal unlawful detention 20/02/2024
- Social media influencer quizzed over parody video allegedly ridiculing apex court ruling, says IGP 19/02/2024
- Lawyer: Not for the Federal Court to decide on matters of renouncing Islam 19/02/2024
- Wrongful arrest: A-GC objects to lawyer's leave for judicial review 19/02/2024
- Agong's power to proclaim emergency not justiciable by court- Judge 16/02/2024
- Aman Palestin funds scandal: Trio charged with 126 counts of corruption worth RM39.53 million 15/02/2024
- Court allows prosecution to suspend Muhyiddin's three money laundering charges related to Jana Wibawa 15/02/2024
by Ben Chester Cheong[i] Chan Zhixuan, Joshua[ii]
The Impact of the UK Supreme Court Decision in Barton and others v. Morris and another in place of Gwyn Jones (deceased)  UKSC 3 on implied Terms, Unjust Enrichment and Quantum Meruit in Singapore
Contracts form the basis of almost every business transaction. The existence of contracts allows for the participation in collaborative and complementary efforts by setting out the expectations and responsibilities of each party, which in turn protects their interests and rights in that transaction. Founded on English common law principles, English cases on the law of contract continue to play an influential role in Singapore decisions insofar as the interpretation of these principles are concerned. Consequently, the recent Supreme Court case of Barton and others v. Morris and another in place of Gwyn Jones (deceased)  UKSC 3 (Barton v. Morris) is no exception. The article thus seeks to discuss the principles espoused in Barton v. Morris and the decision’s impact on Singapore.
by Kho Feng Ming*
Honestly, we never anticipated the arrival of generative artificial intelligence ('AI'). When the first word about it was whispered to this world, all of us went euphoric. There was so much excitement regarding generative AI, and the dissonance brought by the COVID-19 pandemic in the yesteryear was no longer our concern. Many spoke highly of what generative AI can bring to our lives, while some remained highly skeptical about it. This article shares the impacts that generative AI will have on our legal industry and points out several interesting areas that may warrant our serious attention.
by BAHARI YEOW* & DR SIK CHENG PENG**
The previous article analysed the framework of the tort of passing off in Malaysia. Passing off law cannot be underestimated as it provides a tool to protect the valuable assets of a business. The tort, in essence, protects the value of the brand of the goods or business, otherwise known as 'goodwill'. It concluded that the three elements known as the 'classic trinity' of passing off, namely (i) goodwill, (ii) misrepresentation, and (iii) damages have been strictly and jealously guarded under the jurisprudence of the traditional tort. It has identified one of the limitations of the traditional tort of passing off involving the issue faced by distinctive class members who have claimed that they have enjoyed certain reputation or goodwill attached to a certain word, geographical indication, indicia or description, and those word, geographical indication, indicia or description were said to have been 'misappropriated' by the defendant. This new category of issue may not neatly fall within the framework of the traditional tort, specifically the first two elements of the classic trinity of passing off. The court felt the need of providing certain remedies to the class members within the distinctive class, and this gave rise to the most notable development in the history of the tort of passing off cases, namely the recognition of the extended passing off.
by BAHARI YEOW* & DR SIK CHENG PENG**
This article provides a brief overview on the development of the classical trinity in Malaysia. It serves as an introduction and background to a subsequent article. Tort of passing off is a common law principle. The legislations dealing with trademarks promulgated in early days pre-Merdeka were Trade Marks Ordinance 1934 (Sarawak), Trade Marks Ordinance 1938 (SS), Trade Marks Ordinance 1949 (Sabah), Trade Marks Ordinance 1950 (Federation of Malaya) and Trade Marks Ordinance 1953 (Sarawak). These pre-Merdeka legislations have been repealed and replaced by the Trade Marks Act 1976 and now the Trademarks Act 2019. Whilst these legislations have gone through several substantive amendments and changes, one common feature in them is that they did not affect the right of action against any person for passing off goods and services as those of another person or the remedies in respect thereof. It is for this reason, the history of tort of passing off in Malaysia must begin before 1934.
by Ong Cheng Hong**
This article concerns the impact of cartel prohibition on the development of small and medium enterprises (‘SMEs’). While it is commonly believed that competition law and the prohibition of cartels create a level playing field for SMEs, recent cases suggest that SMEs face increased challenges following the implementation of cartel rules. In some foreign jurisdictions, SMEs have been accorded special treatment and protection under competition laws. In particular, this article identifies the rationale for a broader role of competition law in enhancing SMEs and the best practices in other jurisdictions towards this societal goal. The article, in turn, assessed the legal and enforcement framework of cartel rule under the Malaysian Competition Act 2010 (‘CA 2010’). It was found that the cartel rule in its current form does not give enough consideration to the SMEs. This article recommends how these gaps could be addressed for better SME enhancement.
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.