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Issue #46/2017 16 November 2017

New This Week Case(s) of the Week TENG CHANG KHIM v. BADRUL HISHAM ABDULLAH & ANOR [2017] 9 CLJ 630 Appeal Updates Appeal Updates Latest Cases Legal Network Series CLJ 2017 Volume 9 (Part 6) Articles LNS Article(s) Legislation Highlights Principal Acts Amending Acts PU(A) PU(B) Legislation Alert

TENG CHANG KHIM v. BADRUL HISHAM ABDULLAH & ANOR [2017] 9 CLJ 630
FEDERAL COURT, PUTRAJAYA
MD RAUS SHARIF CJ, SURIYADI HALIM OMAR FCJ, AHMAD MAAROP FCJ, ZAINUN ALI FCJ, ABU SAMAH NORDIN FCJ
[CIVIL APPEAL NO: 01(F)-26-08-2016(B)]
28 AUGUST 2017

ADMINISTRATIVE LAW: Judicial proceedings – Judicial proceedings against Speaker of State Legislative Assembly – Member of State Legislative Assembly absent from State Legislative Assembly meetings for six months without leave of Speaker – Speaker declared member’s seat vacant – Speaker explained decision and declaration in press conference outside State Legislative Assembly proceedings – Whether declaration amenable to judicial proceedings – Whether Speaker’s act in making declaration part of proceedings of State Legislative Assembly even if made during press conference – Constitution of the State of Selangor 1959, arts. 69 & 77 – Federal Constitution, art. 72(1)

CONSTITUTIONAL LAW: Parliament – Privileges and immunities – Member of State Legislative Assembly absent from State Legislative Assembly meetings for six months without leave of Speaker – Speaker rejected member’s application for leave and declared member’s seat vacant – Member initiated judicial proceedings against Speaker – Whether Speaker immune from being challenged in court – Whether enjoyed constitutional privilege and protection – Constitution of the State of Selangor 1959, arts. 69 & 77 – Federal Constitution, art. 72(1)

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1. Aly Syllia lwn. PP [2017] 1 LNS 69 (CA) affirming the High Court case of PP lwn. Aly Syllia (W/Guinea) [2016] 1 LNS 317.

2. PP v. Rudolf Tschernezow [2017] 1 LNS 70 (CA) overruling the High Court case of PP v. Rudolf Tschernezow [2016] 1 LNS 654.

Legal Network Series

[2016] 1 LNS 653	ISMAIL SAAD lwn. PENTADBIR TANAH DAERAH KOTA SETAR	UNDANG-UNDANG TANAH: Gadaian - Pengendorsan - Pembatalan pengendorsan - Permohonan di bawah s. 279(1) Kanun Tanah Negara - Sama ada peruntukan s. 279(1) Kanun Tanah Negara memberikan kuasa kepada pendaftar atau mahkamah untuk menerima dan menimbangkan permohonan plaintif - Sama ada mahkamah mempunyai bidang kuasa untuk menimbangkan permohonan plaintif di bawah s. 279(1) Kanun Tanah Negara
[2016] 1 LNS 1316	ARMADA (SINGAPORE) PTE LTD lwn. ASHAPURA MINECHEM LIMITED	PROSEDUR SIVIL: Perintah - Pengetepian - Pengetepian perintah mahkamah yang memberi kebenaran untuk penguatkuasaan awad penimbang tara yang diberi di luar negara - Perintah tidak mematuhi keperluan prosedur - Defendan membangkitkan isu lokus standi plaintif - Sama ada perintah mahkamah telah mematuhi keperluan s. 38 Akta Timbang Tara 2005 ('Akta 2005') - Sama ada perintah mahkamah adalah sah - Sama ada isu lokus standi plaintif sepatutnya dibangkitkan di dalam prosiding timbang tara - Sama ada keadaan-keadaan yang dinyatakan di bawah s. 39(1) dan (2) Akta 2005 telah dibuktikan untuk mewajarkan pengetepian perintah mahkamah yang diberikan di bawah s. 38 Akta 2005
[2016] 1 LNS 1319	PP lwn. LOW KAR KEONG	UNDANG-UNDANG JENAYAH: Akta Anti Pemerdagangan Orang 2007 - Seksyen 12, 13, 14 - Pemerdagangan orang bagi maksud eksploitasi seks - Mangsa mengakui tidak pernah berkomunikasi dengan tertuduh - Mangsa mengakui tidak pernah diajar tertuduh berkenaan cara bekerja - Pergerakan mangsa tidak dikawal - Sama ada unsur ugutan oleh tertuduh terhadap mangsa telah dibuktikan - Sama ada unsur penindasan telah dibuktikan - Sama ada tertuduh secara peribadi telah melakukan kesalahan pemerdagangan manusia untuk tujuan eksploitasi seks - Sama ada tertuduh terlibat dalam sindiket pemerdagangan orang
[2016] 1 LNS 1380	PERINGKAT ISTIMEWA SDN BHD v. PUA KIM AN & ORS	AGENCY: Power of attorney - Validity - Illegality - Power of attorney not executed before an advocate and solicitor - Common seal of company not affixed before solicitor - Power of attorney purportedly allowed director of company to charge company's property for ultimate benefit of 3rd party - Whether power of attorney was valid and binding - Whether power of attorney was executed in accordance with Sections 3(1)(a) and 3(2) of Powers of Attorney Act 1949 - Whether certificate of authentication executed by solicitor was tainted - Whether any activity done pursuant to an invalid power of attorney was void - Whether power of attorney ought to be struck down on ground of illegality - Whether powers conferred by power of attorney must be exercised for benefit of principal CONTRACT: Joint venture - Joint venture agreement ('JVA') - Rescission - Remedy - JVA entered by a director on behalf of company without authority - JVA was entered by agent with third party pursuant to power of attorney - Agent acted to the detriment of principal in negotiating and entering JVA - Agent breached fiduciary duty owed to principal - Whether JVA was void ab initio and ought to be rescinded - Whether appropriate remedy would be to restore parties to their original status - Whether restoration of status quo would avoid unjust enrichment
[2017] 1 LNS 1013	GLOMAC RESOURCES SDN BHD v. MAJLIS AGAMA ISLAM WILAYAH PERSEKUTUAN & ANOR	CIVIL PROCEDURE: Judgments and orders - Setting aside - Application made by interested party who was deliberately excluded in a suit - Breach of natural justice - Concealment of material facts - Absence of valid reason to exclude an interested party in a suit - Whether order made without interested party being heard was void - Whether order ought to be set aside ex-debito justitiae LAND LAW: Ownership - Dispute - Parties were not aware of approved development order at time of signing of joint venture agreement to develop land - Ownership based on 'in-kind' entitlement under joint venture agreement - Disputed unit was converted and renovated into surau - Surau could not be located within delivered unit - Whether renovation and conversion of surau was done solely in order to comply with development order - Whether defendant could take advantage of location of surau and claim ownership over disputed units

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CLJ 2017 Volume 9 (Part 6)

FEDERAL COURT

Positive Vision Labuan Ltd v. Ketua Pengarah Hasil Dalam Negeri & Other Appeals
Md Raus Sharif PCA, Suriyadi Halim Omar, Ahmad Maarop, Zaharah Ibrahim FCJJ, Balia Yusof Wahi JCA
(Revenue Law; Civil Procedure; Statutory Interpretation; Words & Phrases Offshore companies made irrevocable elections under s. 3A of Labuan Business Activity Tax Act 1990 to be chargeable under Income Tax Act 1967 - Whether offshore companies entitled to income tax exemption on dividends received under Income Tax (Exemption) (No 22) Order 2007) [2017] 9 CLJ 595 [FC]

Teng Chang Khim v. Badrul Hisham Abdullah & Anor
Md Raus Sharif CJ, Suriyadi Halim Omar, Ahmad Maarop, Zainun Ali, Abu Samah Nordin FCJJ
(Administrative Law; Constitutional Law - Judicial proceedings against Speaker of State Legislative Assembly by member of State Legislative Assembly - Whether Speaker immune from being challenged in court) [2017] 9 CLJ 630 [FC]

Usima Sdn Bhd v. Lee Hor Fong
Zulkefli Ahmad Makinudin PCA, Suriyadi Halim Omar, Hasan Lah, Ramly Ali, Balia Yusof Wahi FCJJ
(Contract - Termination of contract - Claim for works done - Whether interim certificates may be considered as final amount of value of works done) [2017] 9 CLJ 646 [FC]

COURT OF APPEAL

Cemerlang Land Sdn Bhd v. Ali Saat & Anor And Other Appeals
Tengku Maimun Tuan Mat, Vernon Ong Lam Kiat, Hasnah Mohammed Hashim JJCA
(Administrative Law - Application to quash decision of Tribunal Tuntutan Pembeli Rumah - Whether decision of Tribunal tainted with illegality, irrationality or procedural impropriety) [2017] 9 CLJ 664 [CA]

Raymond Wahab v. PP
Mohd Zawawi Salleh, Idrus Harun, Kamardin Hashim JJCA
(Criminal Law; Evidence - Dangerous Drugs Act 1952 - Section 39B(1)(a) - Trafficking in 98.3g of ketamine - Poisons Act 1952 - Section 30(3) - Possession of 1.08g of nitrazepam - Appeal against conviction and sentence - Whether conviction safe) [2017] 9 CLJ 678 [CA]

HIGH COURT

Agnes Lurdasamay v. Navaneethan Muniandy
Ahmad Shahrir Mohd Salleh JC
(Civil Procedure; Evidence - Application to compel alleged father of child to undergo Deoxyribonucleic Asid ('DNA') test - Whether Deoxyribonucleic Acid (DNA) Identification Act 2009 applicable to civil proceedings) [2017] 9 CLJ 702 [HC]

Apex Marble Sdn Bhd & Anor v. Leong Tat Yan
S Nantha Balan J
(Civil Procedure - Forum conveniens - Dispute between Malaysian companies and Malaysian citizen based in Vietnam - Whether convenient to have proceedings heard in Vietnam) [2017] 9 CLJ 713 [HC]

SUBJECT INDEX

ADMINISTRATIVE LAW

Judicial review - Certiorari - Application to quash decision of Tribunal Tuntutan Pembeli Rumah ('Tribunal') - Development project of apartment abandoned and first agreement revoked - House buyer entered into second agreement upon revival of project - Tribunal awarded compensation for late delivery of apartment unit under first agreement - Whether complaint filed within 12 months from date of termination of first agreement - Whether decision of Tribunal tainted with illegality, irrationality or procedural impropriety - Whether Tribunal acted in excess of jurisdiction - Housing Development (Control and Licensing) Act 1966, s. 16N(2)
Cemerlang Land Sdn Bhd v. Ali Saat & Anor And Other Appeals
(Tengku Maimun Tuan Mat, Vernon Ong Lam Kiat, Hasnah Mohammed Hashim JJCA) [2017] 9 CLJ 664 [CA]

Judicial proceedings - Judicial proceedings against Speaker of State Legislative Assembly - Member of State Legislative Assembly absent from State Legislative Assembly meetings for six months without leave of Speaker - Speaker declared member's seat vacant - Speaker explained decision and declaration in press conference outside State Legislative Assembly proceedings - Whether declaration amenable to judicial proceedings - Whether Speaker's act in making declaration part of proceedings of State Legislative Assembly even if made during press conference - Constitution of the State of Selangor 1959, arts. 69 & 77 - Federal Constitution, art. 72(1)
Teng Chang Khim v. Badrul Hisham Abdullah & Anor
(Md Raus Sharif CJ, Suriyadi Halim Omar, Ahmad Maarop, Zainun Ali, Abu Samah Nordin FCJJ) [2017] 9 CLJ 630 [FC]

CIVIL PROCEDURE

Forum conveniens - Dispute between Malaysian companies and Malaysian citizen based in Vietnam - Parties entered into non-exclusive dealership agreements - Allegations of breach of express and/or implied terms of agreements - Whether defendant's place of residence/business in Vietnam or Malaysia - Whether alleged causes of action occurred in Vietnam or Malaysia - Whether convenient to have proceedings heard in Vietnam as relevant witnesses resided in Vietnam - Whether proceedings ought to be stayed - Rules of Court 2012, O. 12 r. 10(1) & (2)
Apex Marble Sdn Bhd & Anor v. Leong Tat Yan
(S Nantha Balan J) [2017] 9 CLJ 713 [HC]

Judgments and orders - Order to compel - Deoxyribonuleic Asid ('DNA') application to compel alleged father of child to undergo DNA test - Allegations of intimate relationship resulting in birth of child - Whether there are written laws in Malaysia to compel DNA test without consent - Whether Deoxyribonucleic Acid (DNA) Identification Act 2009 applicable to civil proceedings - Whether court could compel alleged father to undergo DNA test
Agnes Lurdasamay v. Navaneethan Muniandy
(Ahmad Shahrir Mohd Salleh JC) [2017] 9 CLJ 702 [HC]

Judicial review - Income tax - Exemption - Offshore companies made irrevocable elections under s. 3A of Labuan Business Activity Tax Act 1990 ('LBATA') to be chargeable under Income Tax Act 1967 ('ITA') - Whether companies entitled to income tax exemption on dividends received under the Income Tax (Exemption) (No 22) Order 2007 ('Exemption Order') - Exemption Order to be read with ss. 2(3) & 3A of LBATA - Whether Exemption Order intended to apply only to a company subject to tax under LBATA - Offshore Companies elected to be taxed under s. 3B of ITA - Whether companies 'chargeable offshore companies' and no longer within terms of Exemption Order
Positive Vision Labuan Ltd v. Ketua Pengarah Hasil Dalam Negeri & Other Appeals
(Md Raus Sharif PCA, Suriyadi Halim Omar, Ahmad Maarop, Zaharah Ibrahim FCJJ, Balia Yusof Wahi JCA) [2017] 9 CLJ 595 [FC]

Jurisdiction - High Court - Dispute between Malaysian companies and Malaysian citizen based in Vietnam - Parties entered into non-exclusive dealership agreements - Allegations of breach of express and/or implied terms of agreements - Whether defendant's place of residence/business in Vietnam or Malaysia - Whether alleged causes of action occurred in Vietnam or Malaysia - Whether convenient to have proceedings heard in Vietnam as relevant witnesses resided in Vietnam - Whether proceedings ought to be stayed - Rules of Court 2012, O. 12 r. 10(1) - Courts of Judicature Act 1964, s. 23(1)
Apex Marble Sdn Bhd & Anor v. Leong Tat Yan
(S Nantha Balan J) [2017] 9 CLJ 713 [HC]

CONSTITUTIONAL LAW

Parliament - Privileges and immunities - Member of State Legislative Assembly absent from State Legislative Assembly meetings for six months without leave of Speaker - Speaker rejected member's application for leave and declared member's seat vacant - Member initiated judicial proceedings against Speaker - Whether Speaker immune from being challenged in court - Whether enjoyed constitutional privilege and protection - Constitution of the State of Selangor 1959, arts. 69 & 77 - Federal Constitution, art. 72(1)
Teng Chang Khim v. Badrul Hisham Abdullah & Anor
(Md Raus Sharif CJ, Suriyadi Halim Omar, Ahmad Maarop, Zainun Ali, Abu Samah Nordin FCJJ) [2017] 9 CLJ 630 [FC]

CONTRACT

Building contract - Interim certificates - Subcontractor allegedly abandoned works - Main contractor terminated subcontract with subcontractor - Subcontractor claimed against contractor for works done - Whether interim certificates may be considered as final amount of value of works done - Whether contract was re-measurement contract - Whether re-measurement done - Whether subcontractor unjustly enriched - Contracts Act 1950, s. 71
Usima Sdn Bhd v. Lee Hor Fong
(Zulkefli Ahmad Makinudin PCA, Suriyadi Halim Omar, Hasan Lah, Ramly Ali, Balia Yusof Wahi FCJJ) [2017] 9 CLJ 646 [FC]

Unjust enrichment - Essential ingredients - Contractor terminated subcontract with subcontractor - Subcontractor claimed against contractor for works done - Whether interim certificates may be considered as final amount of value of works done - Whether subcontractor unjustly enriched - Whether conditions under s. 71 of Contracts Act 1950 satisfied
Usima Sdn Bhd v. Lee Hor Fong
(Zulkefli Ahmad Makinudin PCA, Suriyadi Halim Omar, Hasan Lah, Ramly Ali, Balia Yusof Wahi FCJJ) [2017] 9 CLJ 646 [FC]

CRIMINAL LAW

Dangerous Drugs Act 1952 - Section 39B(1)(a) - Trafficking in 98.3g of ketamine - Conviction and sentence - Appeal against - Whether premises where drugs were seized accessible to persons other than accused - Whether accused's DNA found on items seized from premises - Whether accused had care and management of premises - Whether essential elements required to prove possession established - Whether safe to invoke presumption of s. 37(b) of Dangerous Drugs Act 1952 - Whether there was failure to appreciate accused's defence - Failure of trial judge to deliver grounds of judgment - Whether prejudiced and disadvantaged accused - Whether conviction safe - Whether accused ought to be acquitted and discharged - Courts of Judicature Act 1964, s. 52(1) - Criminal Procedure Code, s. 308
Raymond Wahab v. PP & Another Appeal
(Mohd Zawawi Salleh, Idrus Harun, Kamardin Hashim JJCA) [2017] 9 CLJ 678 [CA]

Poisons Act 1952 - Section 30(3) - Possession of 1.08g of nitrazepam - Conviction and sentence - Appeal against - Whether premises where poison chemicals were seized accessible to other persons than accused - Whether accused's DNA found on items seized from premises - Whether accused had care and management of premises - Whether essential elements required to prove possession established - Whether custody and control of psychotropic substances proved - Whether there was failure to appreciate accused's defence - Failure of trial judge to deliver grounds of judgment - Whether prejudiced and disadvantaged accused - Whether conviction safe - Whether accused ought to be acquitted and discharged - Courts of Judicature Act 1964, s. 52(1) - Criminal Procedure Code, s. 308
Raymond Wahab v. PP & Another Appeal
(Mohd Zawawi Salleh, Idrus Harun, Kamardin Hashim JJCA) [2017] 9 CLJ 678 [CA]

EVIDENCE

Proof - Paternity - Allegations of intimate relationship resulting in birth of child - Determination of paternity of child - Whether mother adduced sufficient prima facie evidence to show relationship was sexual - Whether sufficient to establish that child was conceived due to sexual relationship
Agnes Lurdasamay v. Navaneethan Muniandy
(Ahmad Shahrir Mohd Salleh JC) [2017] 9 CLJ 702 [HC]

Witness - Failure of prosecution to call witnesses - Prosecution chose not to produce important witness's statement - Whether omission on prosecution's part justified invocation of s. 114(g) of Evidence Act 1950 - Failure to ensure witness statement under s. 112 statement properly admitted - Whether there was non-compliance of s. 32 of Evidence Act 1950
Raymond Wahab v. PP
(Mohd Zawawi Salleh, Idrus Harun, Kamardin Hashim JJCA) [2017] 9 CLJ 678 [CA]

REVENUE LAW

Income tax - Exemption - Income tax dividends received by offshore companies - Whether offshore companies qualified for exemption from income tax - Whether Director of Inland Revenue correct in law to disallow tax exemption available under Income Tax (Exemption) (No 22) Order 2007 ('Exemption Order') - Whether Ministry of Finance could by policy or administrative decision declare Exemption Order ceased to apply - Whether s. 3A of Labuan Business Activity Tax Act 1990 expressly states offshore companies are eligible or denied exemption - Whether Exemption Order has legal status of subsidiary legislation - Whether s. 127(5) of Income Tax Act 1967 gives offshore companies vested rights - Whether Ministry of Finance or Director of Inland Revenue has jurisdiction to rely arbitrarily on policy to deny offshore companies' entitlement to tax exemption - Whether time frame prescribed on Exemption Order - Whether denial of right to exemption ultra vires, illegal or void
Positive Vision Labuan Ltd v. Ketua Pengarah Hasil Dalam Negeri & Other Appeals
(Md Raus Sharif PCA, Suriyadi Halim Omar, Ahmad Maarop, Zaharah Ibrahim FCJJ, Balia Yusof Wahi JCA) [2017] 9 CLJ 595 [FC]

Income tax - Exemption - Offshore companies made irrevocable elections under s. 3A of Labuan Business Activity Tax Act 1990 ('LBATA') to be chargeable under Income Tax Act 1967 ('ITA') - Whether offshore companies entitled to income tax exemption on dividends received under Income Tax (Exemption) (No 22) Order 2007 ('Exemption Order') - Exemption Order to be read with ss. 2(3) & 3A of LBATA - Whether Exemption Order intended to apply only to a company subject to tax under LBATA - Offshore Companies elected to be taxed under s. 3B of ITA - Whether companies 'chargeable offshore companies' and no longer within terms of Exemption Order
Positive Vision Labuan Ltd v. Ketua Pengarah Hasil Dalam Negeri & Other Appeals
(Md Raus Sharif PCA, Suriyadi Halim Omar, Ahmad Maarop, Zaharah Ibrahim FCJJ, Balia Yusof Wahi JCA) [2017] 9 CLJ 595 [FC]

STATUTORY INTERPRETATION

Subsidiary legislation - Validity - Exemption Order - Whether made by statutory order - Whether an order having legislative effect - Whether to be read subject to and consistent with provisions of substantive or parent act - Whether Exemption Order has legal status of subsidiary legislation - Interpretation Acts 1948 and 1967, ss. 3 & 24
Positive Vision Labuan Ltd v. Ketua Pengarah Hasil Dalam Negeri & Other Appeals
(Md Raus Sharif PCA, Suriyadi Halim Omar, Ahmad Maarop, Zaharah Ibrahim FCJJ, Balia Yusof Wahi JCA) [2017] 9 CLJ 595 [FC]

WORDS & PHRASES

'Chargeable offshore company' - Whether referred to offshore companies which made irrevocable elections under s. 3A of Labuan Business Activity Act 1990 to be chargeable under Income Tax Act 1967 - Whether companies entitled to income tax exemption on dividends received under Income Tax (Exemption) (No 22) Order 2007
Positive Vision Labuan Ltd v. Ketua Pengarah Hasil Dalam Negeri & Other Appeals
(Md Raus Sharif PCA, Suriyadi Halim Omar, Ahmad Maarop, Zaharah Ibrahim FCJJ, Balia Yusof Wahi JCA) [2017] 9 CLJ 595 [FC]

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LNS Article(s)

1. THE BURDEN OF PROOF IN THE DIGITAL AGE* Disclosure, juries, and the internet of things ^{[Read excerpt]}
   JAMES LAWTON [2017] 1 LNS(A) xciv

[2017] 1 LNS(A) xciv



AUSTRALIA

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THE BURDEN OF PROOF IN THE DIGITAL AGE*
Disclosure, juries, and the internet of things

JAMES LAWTON

Let's face it: social media and Google have taken over the world in the last 13 years. I say 13 years because it was in 2004 that Facebook was launched.

There is now a generation who do not understand that not so long ago there wasn't a thing called 'the internet'. News came from newspapers and the television, not blog sites and YouTube.

And social media is addictive. In one Harvard study, researchers found that disclosing information about oneself is 'intrinsically rewarding... in the same way as with primary rewards such as food and sex'. The study also confirmed that there was greater reward activity in participants' brains when they shared personal activities with their social networks, compared to when their activities were kept private.^[1]

. . .

* Published with kind permission of the Law Society of the Australian Capital Territory. See Ethos No. 244 June 2017.

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2. CONSEQUENCES AND FLAWS TO THE CERTIFICATE OF COMPLETION AND COMPLIANCE - COMPARATIVE ANALYSIS WITH PROPOSED SOLUTIONS* ^{[Read excerpt]}
   DATUK PROFESSOR SUNDRA RAJOO** [2017] 1 LNS(A) xcv

[2017] 1 LNS(A) xcv



MALAYSIA

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CONSEQUENCES AND FLAWS TO THE CERTIFICATE OF COMPLETION AND COMPLIANCE -
COMPARATIVE ANALYSIS WITH PROPOSED SOLUTIONS*

DATUK PROFESSOR SUNDRA RAJOO**

I. EXECUTIVE SUMMARY

The aim of this report is to undertake an objective analysis of the implementation of the CCC in 2007 which was aimed at replacing the Certificate of Fitness for Occupation (CFO) previously issued by the local authorities under the Street, Drainage and Building Act 1974 (Act 133). The rationale behind this was that the former system was overly cumbersome, time-consuming and subject to abuse.

. . .

* [2008] 1 MLJ cix.

** Datuk Professor Sundra Rajoo is the Director of the Kuala Lumpur Regional Centre for Arbitration (KLRCA). He is a Chartered Arbitrator and an Advocate & Solicitor of the High Court of Malaya (non-practising). He is also a Professional Architect and Registered Town Planner.

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