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Issue #11/2017 16 March 2017

New This Week Case(s) of the Week PANGLIMA TENTERA LAUT DIRAJA MALAYSIA & ORS v. SIMATHARI SOMENAIDU [2017] 3 CLJ 129 Latest Cases Legal Network Series CLJ 2017 Volume 3 (Part 2) Articles LNS Article(s) Legislation Highlights Principal Acts Amending Acts PU(A) PU(B) Legislation Alert

PANGLIMA TENTERA LAUT DIRAJA MALAYSIA & ORS v. SIMATHARI SOMENAIDU [2017] 3 CLJ 129
FEDERAL COURT, PUTRAJAYA
ZULKEFLI AHMAD MAKINUDDIN CJ (MALAYA), RICHARD MALANJUM CJ (SABAH & SARAWAK),
RAMLY ALI FCJ, ZAHARAH IBRAHIM FCJ, BALIA YUSOF WAHI JCA
[CIVIL APPEAL NO: 01(f)-17-07-2014(W)]
10 JANUARY 2017

ADMINISTRATIVE LAW: Judicial review - Proceedings - Appeal for leave to Federal Court against Court of Appeal's decision allowing application for judicial review - Royal Malaysian Navy - Termination from service under Queen's Regulations for Royal Navy Revised 1967 (`QRRN') - Whether QRRN could be relied upon for termination of non-commissioned servicemen - Whether QRRN saved when Navy Ordinance 1958 repealed by Armed Forces Act 1972 - Whether any new regulations to provide for termination of servicemen in place of provisions in QRRN - Interpretation of s. 217(2) of Armed Forces Act 1972 - Intention of Parliament - Whether continued operation of QRRN prejudicially affected - Whether QRRN's continued application preserved by ss. 30(2)(a)(ii) & 33 of Interpretation Acts 1948 and 1967 - Whether termination under QRRN lawful

STATUTORY INTERPRETATION: Construction of statutes - Interpretation of - Armed Forces Act 1972, s. 217(2) - Omission of words `or applied by' - Whether detracted from clear intention of Parliament to `save' subsidiary legislation - Interpretation Acts 1948 and 1967, ss. 30(2)(a)(ii) & 33 

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Legal Network Series

[2015] 1 LNS 988	GOODMATCH SDN BHD v. DATO' TING CHECK SII	CIVIL PROCEDURE: Summary judgment - Company's action against shareholder - Breach of trust and fiduciary duties - Claim for return of monies held on trust - Claim for dividends held by shareholder on trust for company and money being received by shareholder - Whether shareholder was a trustee of shares - Whether dividends paid out to shareholder must be paid to company - Whether shareholder was entitled to unjustly enrich himself - Whether preliminary requirements for purpose of O. 14 of Rules of Court 2012 application had been satisfied - Whether plaintiff established a prima facie case to be entitled to summary judgment CIVIL PROCEDURE: Summary judgment - Triable issues - Defence of limitation - Claim by company against shareholder for return of monies held on trust - Transfer of shares by shareholder was held to be illegal, null and void - Whether defendant could rely on limitation as defence to plaintiff's claim - Whether law of limitation applies to a void contract - Whether absence of bona fide defence warrants granting of summary judgment
[2015] 1 LNS 1086	LEE SIEW KEN & ANOR v. PENGARAH TANAH DAN GALIAN NEGERI SELANGOR	CIVIL PROCEDURE: Parties - Practice and procedure - Action against State Director of Lands and Mines in official capacity - Suit to establish liability on part of State Authority for damages - Whether sufficient to name State Director of Lands and Mines as defendant - Whether immunity from being sued available to State Director - National Land Code, s. 16(2) & 22 CIVIL PROCEDURE: Pleading - Issues not pleaded - Determination of issues which was only raised at submission stage - Issue not pleaded in defence - Defendant's allegation that plaintiff had failed to name actual tortfeasor in suit - Whether issue was baseless and misconceived EVIDENCE: Adverse inference - Evidence Act 1950, s. 114(g) - Adverse inference against defence - Failure to call Registrar of Titles - Action against State Director of Lands and Mines - Issuance of two original titles for same property bearing same title number and description that caused fraud being perpetrated against actual registered proprietor - Whether omission to produce Registrar of Titles was fatal to defence case TORT: Negligence - Breach of statutory duty - Action against State Director of Lands and Mines - Permitting land office's computerized system of land registration to be blatantly abused to deprive actual registered proprietor of ownership of property - Issuance of two original titles for same property bearing same title number and description - Fraudulent transfer of property without knowledge of actual registered proprietor - Whether there was gross negligence and breach of statutory duty on part of State Director
[2015] 1 LNS 1090	MEGASTEEL SDN BHD v. WOODGROVE INVESTMENTS PTE LTD	CIVIL PROCEDURE: Injunction - Fortuna injunction - Debt disputed on substantial ground - Syndicated loan involving many lenders - Separate claim by one lender against borrower without agreement and knowledge of other lenders - Commencement of winding up proceeding in absence of occurrence of event of default - Existence of other alternative procedures - Whether amount claimed was bona fide disputed debt - Whether issuance of s. 218 notice was premature - Whether issue of insolvency was relevant in Fortuna injunction application - Whether petitioner was a 'creditor' clothed with locus standi to present a winding up petition - Whether winding up petition bound to fail CIVIL PROCEDURE: Injunction - Fortuna injunction - Section 218 notice issued with a collateral purpose to bring pressure - Whether proper case to restrain winding up petition CIVIL PROCEDURE: Injunction - Fortuna injunction - Preserving status quo - Defendant's claim merely a monetary claim which is quantifiable - Adverse implications and irreparable harm and damage caused to plaintiff if defendant not restrained - Winding up petition would hinder plaintiff's business operation and financial position - Difficulty to recover from loss of reputation if winding up petition advertised - Whether balance of convenience in favour of plaintiff to preserve status quo
[2015] 1 LNS 1356	VICKNES SHANMUGAM lwn. MENTERI DALAM NEGERI, MALAYSIA & YANG LAIN	PENAHANAN PENCEGAHAN: Perintah tahanan - Permohonan untuk habeas corpus - Pemohon ditahan di pusat pemulihan akhlak kerana didapati terlibat dengan aktiviti pengedaran dadah - Dadah jenis syabu yang mengandungi methamphetamine dan cannabis - Dakwaan ketidakpatuhan prosedur - Afidavit Timbalan Menteri hanya menyatakan methamphetamine dan cannabis dan tidak menyatakan dadah jenis syabu - Sama ada ketinggalan perkataan syabu di dalam afidavit Timbalan Menteri teleh menjejaskan dan memprejudiskan pemohon - Sama ada prasyarat di bawah s. 6(1) Akta Dadah Berbahaya (Langkah-Langkah Pencegahan Khas) 1985 telah dipenuhi - Sama ada perintah tahanan yang dikeluarkan adalah teratur
[2015] 1 LNS 1357	SYAZWAN SAHABULLAH ZAHIDI lwn. MENTERI DALAM NEGERI, MALAYSIA & YANG LAIN	PENAHANAN PENCEGAHAN: Perintah tahanan - Permohonan untuk habeas corpus - Tahanan di bawah Akta Dadah Berbahaya (Langkah-Langkah Pencegahan Khas) 1985 - Pertikaian berkenaan afidavit pegawai siasatan - Kegagalan pegawai siasatan menyatakan secara spesifik tarikh mula bertugas - Ketinggalan sempang pada nombor kad pengenalan pemohon dalam borang laporan - Sama ada terdapat ketidakpatuhan prosedur - Sama ada pemohon telah mengalami prejudis - Sama ada perintah tahanan yang dikeluarkan adalah teratur dan sah

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CLJ 2017 Volume 3 (Part 2)

FEDERAL COURT

Panglima Tentera Laut Diraja Malaysia & Ors v. Simathari Somenaidu
Zulkefli Ahmad Makinuddin CJ (Malaya), Richard Malanjum CJ (Sabah & Sarawak), Ramly Ali, Zaharah Ibrahim FCJJ, Balia Yusof Wahi JCA
(Administrative Law; Statutory Interpretation - Judicial review - Proceedings - Termination from service under Queen's Regulations for Royal Navy Revised 1967 ('QRRN')) [2017] 3 CLJ 129 [FC]

COURT OF APPEAL

Ling Ing Keat & Ors v. Martina Pg Ismail & Ors
Mohd Zawawi Salleh, Abang Iskandar, Ahmadi Asnawi JJCA
(Contract; Land Law - Alienation of land - Letter of offer - Terms and conditions) [2017] 3 CLJ 149] [CA]

Michael Philip Spears v. Ketua Pengarah Penjara Kajang & Anor
Abang Iskandar, Varghese George, Nallini Pathmanathan JJCA
(Civil Procedure; Constitutional Law - Fundamental liberties - Detention) [2017] 3 CLJ 161 [CA]

HIGH COURT

Chin Jit Pyng & Ors v. Ketua Pengarah Kastam & Anor
Hanipah Farikullah J
(Customs And Excise; Administrative Law - Custom duties - Vehicle) [2017] 3 CLJ 176 [HC]

Edwin Wong Lee Tuck v. PP & Another Case
Mohamad Shariff Abu Samah JC
(Insurance - Agents - Insurance Act 1966, s. 41(2) - Payments of additional cash incentives to agents) [2017] 3 CLJ 189 [HC]

Government Of The State Of Penang v. Minister Of Home Affairs & Ors
Hadhariah Syed Ismail J
(Administrative Law; Unincorporated Associations - Societies - Judicial review - Application to quash order issued by Minister in declaring society unlawful) [2017] 3 CLJ 243 [HC]

SUBJECT INDEX

ADMINISTRATIVE LAW

Judicial review - Application for - Application to quash order issued by Minister in declaring society unlawful - Whether society lawfully established - Discretionary powers of Minister in declaring society unlawful - Whether discretion absolute and unfettered - Whether Minister required to hear representations before declaring society unlawful - Societies Act 1966, ss. 2, 5 & 6 - Local Government Act 1976, ss. 2, 13 & 101(v)
Government Of The State Of Penang v. Minister Of Home Affairs & Ors
(Hadhariah Syed Ismail J) [2017] 3 CLJ 243 [HC]

Judicial review - Jurisdiction - Offence under s. 138 of Customs Act 1967 - Seizure of vehicles - Imposition of customs tax together with compound - Decision of Customs Department to re-impose customs tax upon violation of tax exemption - Whether matters pertaining to compound by Customs Department beyond jurisdiction of civil courts
Chin Jit Pyng & Ors v. Ketua Pengarah Kastam & Anor
(Hanipah Farikullah J) [2017] 3 CLJ 176 [HC]

Judicial review - Proceedings - Appeal for leave to Federal Court against Court of Appeal's decision allowing application for judicial review - Royal Malaysian Navy - Termination from service under Queen's Regulations for Royal Navy Revised 1967 ('QRRN') - Whether QRRN could be relied upon for termination of non-commissioned servicemen - Whether QRRN saved when Navy Ordinance 1958 repealed by Armed Forces Act 1972 - Whether any new regulations to provide for termination of servicemen in place of provisions in QRRN - Interpretation of s. 217(2) of Armed Forces Act 1972 - Intention of Parliament - Whether continued operation of QRRN prejudicially affected - Whether QRRN's continued application preserved by ss. 30(2)(a)(ii) & 33 of Interpretation Acts 1948 and 1967 - Whether termination under QRRN lawful
Panglima Tentera Laut Diraja Malaysia & Ors v. Simathari Somenaidu
(Zulkefli Ahmad Makinuddin CJ (Malaya), Richard Malanjum CJ (Sabah & Sarawak), Ramly Ali, Zaharah Ibrahim FCJJ, Balia Yusof Wahi JCA) [2017] 3 CLJ 129 [FC]

CIVIL PROCEDURE

Jurisdiction - High Court - Accused person detained more than 17 years and on death row for 14 years - Accused sought declaration that detention was inhumane, cruel and/or degrading punishment - Whether High Court seized with jurisdiction to determine issues raised
Michael Philip Spears v. Ketua Pengarah Penjara Kajang & Anor And Another Appeal
(Abang Iskandar, Varghese George, Nallini Pathmanathan JJCA) [2017] 3 CLJ 161 [CA]

Striking out - Action - Accused person detained more than 17 years and on death row for 14 years - Accused sought declaration that detention was inhumane, cruel and/or degrading punishment - Whether suit ought to be summarily struck out - Whether accused had arguable and sustainable case
Michael Philip Spears v. Ketua Pengarah Penjara Kajang & Anor And Another Appeal
(Abang Iskandar, Varghese George, Nallini Pathmanathan JJCA) [2017] 3 CLJ 161 [CA]

CONSTITUTIONAL LAW

Fundamental liberties - Detention - Accused person detained more than 17 years and on death row for 14 years - Whether detention null and void - Whether detention in violation of accused's personal liberties - Federal Constitution, art. 5(1)
Michael Philip Spears v. Ketua Pengarah Penjara Kajang & Anor And Another Appeal
(Abang Iskandar, Varghese George, Nallini Pathmanathan JJCA) [2017] 3 CLJ 161 [CA]

CONTRACT

Sale and purchase of land - Agreement - Validity of - Alienation of land to defendants - Whether conditions stipulated in letter of offer breached - Whether sale of land to plaintiffs void ab initio - Whether title of land issued to defendants - Whether defendants had capacity to enter into contract with plaintiffs - Forged power of attorney - Whether entire agreement tainted - Doctrine of severability - Whether applicable
Ling Ing Keat & Ors v. Martina Pg Ismail & Ors
(Mohd Zawawi Salleh, Abang Iskandar, Ahmadi Asnawi JJCA) [2017] 3 CLJ 149 [CA]

CUSTOMS AND EXCISE

Custom duties - Vehicle - Vehicle brought to Malaysia through Langkawi - Tax exemption - Overstay in principal custom area - Offence under s. 138 of Customs Act 1967 - Seizure of vehicles - Imposition of customs tax together with compound - Whether re-imposition of customs tax upon violation of tax exemption mandatory by virtue of s. 15 of Customs Act 1967
Chin Jit Pyng & Ors v. Ketua Pengarah Kastam & Anor
(Hanipah Farikullah J) [2017] 3 CLJ 176 [HC]

INSURANCE

Agents - Insurance Act 1996, s. 41(2) - Payments of additional cash incentives to agents - Whether in breach of Control Operating Cost of General Insurance Business Guidelines ('OCC Guidelines') - Whether amounted to an offence under s. 41(2) of Insurance Act - Whether non-compliance of OCC Guidelines attracted penal consequences - Purpose of payment of additional incentives - Whether to increase asset of insurance company and to remain solvent
Edwin Wong Lee Tuck v. PP & Another Case
(Mohamad Shariff Abu Samah JC) [2017] 3 CLJ 189 [HC]

LAND LAW

Alienation of land - Letter of offer - Terms and conditions - Whether violated - Whether sale of land to plaintiffs valid in law - Whether parties had capacity in law to deal with land - Forged power of attorney - Validity of title - Doctrine of severability - Whether applicable
Ling Ing Keat & Ors v. Martina Pg Ismail & Ors
(Mohd Zawawi Salleh, Abang Iskandar, Ahmadi Asnawi JJCA) [2017] 3 CLJ 149 [CA]

STATUTORY INTERPRETATION

Construction of statutes - Interpretation of - Armed Forces Act 1972, s. 217(2) - Omission of words 'or applied by' - Whether detracted from clear intention of Parliament to 'save' subsidiary legislation - Interpretation Acts 1948 and 1967, ss. 30(2)(a)(ii) & 33
Panglima Tentera Laut Diraja Malaysia & Ors v. Simathari Somenaidu
(Zulkefli Ahmad Makinuddin CJ (Malaya), Richard Malanjum CJ (Sabah & Sarawak), Ramly Ali, Zaharah Ibrahim FCJJ, Balia Yusof Wahi JCA) [2017] 3 CLJ 129 [FC]

UNINCORPORATED ASSOCIATIONS

Societies - Judicial review - Application to quash order issued by Minister in declaring society unlawful - Whether society lawfully established - Discretionary powers of Minister in declaring society unlawful - Whether discretion absolute and unfettered - Whether Minister required to hear representations before declaring society unlawful - Societies Act 1966, ss. 2, 5 & 6 - Local Government Act 1976, ss. 2, 13 & 101(v)
Government Of The State Of Penang v. Minister Of Home Affairs & Ors
(Hadhariah Syed Ismail J) [2017] 3 CLJ 243 [HC]

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LNS Article(s)

1. TERMINATING EMPLOYMENT Pornography, policies, and procedural fairness* ^{[Read excerpt]}
   JOHN WILSON** KIERAN PENDER*** [2017] 1 LNS(A) xxii

[2017] 1 LNS(A) xxii



AUSTRALIA

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TERMINATING EMPLOYMENT
Pornography, policies, and procedural fairness*

JOHN WILSON**
KIERAN PENDER***

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When handled insensitively or without regard to the regulatory landscape, termination can open a Pandora’s Box of potentially litigious grievances.

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Ordinarily, the use of employer provided equipment to access, download and/or store hard core pornographic material would represent misconduct. Unless the employee worked in the sex industry it would be difficult to contemplate that the viewing, downloading and/ or storage of pornographic material represented proper, work-related use of the employer’s equipment.

— Commissioner Cambridge in Croft v. Smarter Insurance Brokers Pty Ltd.^[1]

In late September, the Fair Work Commission delivered judgment in a seemingly remarkable unfair dismissal case. The employer had sought to rely on pornography found on the fired employee’s work laptop and mobile phone, discovered after termination, to justify the dismissal. While Commissioner Cambridge accepted that such actions constituted misconduct, he nevertheless concluded that a panoply of errors in the termination process meant that they did not constitute a valid reason for dismissal.^[2] The termination was therefore harsh, unjust and unreasonable, and an award of compensation was ordered — an eye-catching result given the applicant admitted using employer provided technology to download pornography.

. . .

* Published with kind permission of the Law Society of the Australian Capital Territory. See Ethos No. 242 December 2016.

** Managing Legal Director, Bradley Allen Love.

*** Law Clerk, Bradley Allen Love.

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2. GOALS AND PURPOSES (MAQASID) OF SHARIAH (PART 1)* ^{[Read excerpt]}
   MOHAMMAD HASHIM KAMALI [2017] 1 LNS(A) xxiii

[2017] 1 LNS(A) xxiii



MALAYSIA

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GOALS AND PURPOSES (MAQASID) OF SHARIAH (PART 1)*

MOHAMMAD HASHIM KAMALI

The following paragraphs introduce the maqasid in a Q & A format, in two parts, beginning with a question on their general profile and importance in the understanding of Shariah, and another question on the benefit, if any, of knowing the maqasid. Should the maqasid fulfil any conditions for them to be valid; how do they compare with the concept of ‘illah (effective cause) in Islamic jurisprudence, and the parallel western law concepts of rationale and ratio legis of the law? How are the maqasid known and identified, and the manner they are classified into several types?

Q1: What are the Maqasid of Shariah and how important are they in understanding the Shariah itself?

A1: The maqasid (plural of maqsad – goals and purposes) of Shariah, are an integral part of the Shariah and refer to its higher purposes and objectives. The meaning, purpose and wisdom, in other words, that the Lawgiver has contemplated in the enactment of the laws (ahkam) of Shariah. Maqasid thus refer to the higher purposes of the law, which are meant to be secured through the implementation of that law, and they give the law a sense of direction and purpose. Thus, it is implied that the rules of Shariah, especially in the spheres of human relations and mu’amalat, are not meant for their own sake but to secure and realise certain objectives. When the dry letter of the law is applied in such a way that does not secure its intended purpose, and when it fails, for instance, to secure the justice and benefit it is meant to secure, or worse still when it leads to harm and prejudice, the law is most likely reduced to a purposeless exercise, which must be avoided. The laws of Shariah are generally meant to secure justice, and the welfare interests of the people both in this world and the hereafter. But the detailed rules, commands and prohibitions of Shariah also have their specific purposes, which are often identified in the text of the law itself, or by recourse to interpretation and ijtihad.

. . .

* Published with kind permission of the International Institute of Advanced Islamic Studies (IAIS) Malaysia. Also published in New Straits Times on No. 31, March - April 2016. (www.hashimkamali.com or www.iais.org.my).

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