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Issue #48/2017 30 November 2017

New This Week Case(s) of the Week JAIDEEP SINGH DALIP SINGH v. ASP MAHATHIR ABDULLAH SAPAWI & ORS [2017] 10 CLJ 145 Appeal Update Appeal Update Latest Cases Legal Network Series CLJ 2017 Volume 10 (Part 2) Articles LNS Article(s) Legislation Highlights Principal Acts Amending Acts PU(A) PU(B) Legislation Alert

JAIDEEP SINGH DALIP SINGH v. ASP MAHATHIR ABDULLAH SAPAWI & ORS [2017] 10 CLJ 145
FEDERAL COURT, PUTRAJAYA
MD RAUS SHARIF PCA; HASAN LAH FCJ; ZAINUN ALI FCJ; AZAHAR MOHAMED FCJ; AZIAH ALI FCJ
[CRIMINAL APPEALS NO: A-05-252-10-2016, A-05-253-10-2016, A-05-254-10-2016 & A-05-255-10-2016]
31 MAY 2017

CRIMINAL PROCEDURE: Habeas corpus – Application for – Unlawful detention – Allegation of – Remand orders issued by Magistrate under s. 4(1)(a) of Prevention of Crime Act 1959 ('POCA') – Preliminary objection raised – Proper mode of proceeding to mount challenge on unlawful detention – Whether ought to be by way of appeal or by revision of High Court – Whether writ of habeas corpus right mode of proceeding to challenge legality of detention – Whether cases of State Government of Negeri Sembilan & Ors v. Muhammad Juzaili and Madjai Sanusi v. Pengarah Imigresen Negeri Johor applicable – Competency of detaining authority – Whether powers under POCA synonymous with Magistrate executing powers under Subordinate Courts Act 1948 – Whether habeas corpus application ought to have been heard on its merit by High Court

ADMINISTRATIVE LAW: Remedies – Habeas corpus – Application for – Unlawful detention – Allegation of – Remand orders issued by Magistrate under s.4(1)(a) of Prevention of Crime Act 1959 ('POCA') – Preliminary objection raised – Proper mode of proceeding to mount challenge on unlawful detention – Whether ought to be by way of appeal or by revision of High Court – Whether writ of habeas corpus right mode of proceeding to challenge legality of detention – Whether cases of State Government of Negeri Sembilan & Ors v. Muhammad Juzaili and Madjai Sanusi v. Pengarah Imigresen Negeri Johor applicable – Competency of detaining authority – Whether powers under POCA synonymous with Magistrate executing powers under Subordinate Courts Act 1948 – Whether habeas corpus application ought to have been heard on its merit by High Court

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1. Govindaraji Rajaram & Ors v. Wong Chew Fatt & Ors & Another Appeal [2017] 1 LNS 701 (CA) overruling the High Court case of Wong Chew Fatt & Ors v. Govindaraji Rajaram & Ors [Guaman Sivil No.: 23-NCVC-135-12-2012 & 23NCVC-135-12/2012].

2. Inoma Afuekwe Vivian v. PP [2017] 1 LNS 705 (CA) affirming the High Court case of PP v. Inoma Afuekwe Vivian [2014] 1 LNS 1826.

Legal Network Series

[2016] 1 LNS 1454	INOVATIF ENGINEERING (M) SDN BHD v. NOMAD ENGINEERING SDN BHD	ARBITRATION: Award - Setting aside - Adjudicator refused to consider adjudication response which was filed late - Adjudicator mistakenly applied legal term in award - Whether adjudication award could be reviewed on merits - Whether there were grounds to set aside award under s. 15 of Construction Industry Payment Adjudication Act 2012 - Whether adjudicator correctly ignored belated adjudication response - Whether there was denial of natural justice - Whether mistake in applying legal term in decision had occasioned prejudice - Whether adjudicator acted impartially
[2016] 1 LNS 1495	PP lwn. LEE IN CHIEW	PROSEDUR JENAYAH: Rayuan - Rayuan terhadap pelepasan dan pembebasan - Rayuan oleh pihak pendakwaan - Pertuduhan di bawah ss. 12 & 13 Akta Anti Pemerdagangan Orang 2007 - Dakwaan penyekatan kebebasan pekerja asing dengan memegang pasport - Tertuduh menyimpan pasport bagi tujuan keselamatan - Pekerja-pekerja asing bekerja di luar rumah - Pasport disimpan dengan kebenaran pekerja asing - Sama ada pendakwaan telah gagal menyentuh penjelasan tertuduh di dalam pemeriksaan balas - Sama ada pendakwaan perlu menyatakan jenis eksploitasi yang dilakukan tertuduh - Sama ada pembelaan telah menimbulkan keraguan atas kes pendakwaan berkenaan pertuduhan pemerdagangan secara eksploitasi
[2016] 1 LNS 1557	MARIAPPAN VALIATHAM v. PP	CRIMINAL LAW: Penal Code - Sections 395, 397 - Offence of gang robbery - Common intention - Identity of accused disputed - Allegation of flaw in conduct of identification parade - CCTV recording was not tendered by prosecution - Witnesses positively identified accused at identification parade and in dock - Co-accused did not restrain other accused from carrying out robbery - Whether both accused had acted with design and in concert with each other to commit offence - Whether there was common intention to commit robbery - Whether essential ingredients of ss. 395 & 397 of Penal Code proven - Whether failure to tender CCTV evidence was fatal - Whether defence advanced by accused was a bare denial
[2016] 1 LNS 1559	MOHD SHAIFUL RAHMAD v. PP	CRIMINAL PROCEDURE: Appeal - Appeal against conviction - Offence of robbery under s. 392 of Penal Code - Accused claimed defence of alibi - Witnesses had opportunity to look at face of accused at crime scene for few seconds - Whether identification parade conducted was defective - Whether quality of identification evidence was good and positive - Whether defence of alibi had collapsed CRIMINAL PROCEDURE: Appeal - Appeal against sentence - Offence of robbery under s. 392 of Penal Code - Imprisonment for a term of seven years and two strokes of whipping for offence of robbery - Whether sentence imposed was reasonable
[2016] 1 LNS 1719	PP lwn. LOW HAI INN	UNDANG-UNDANG JENAYAH: Dadah berbahaya - Pengedaran - Dadah ditemui di dalam premis yang disewa oleh isteri dan ibu mentua tertuduh - Dadah dijumpai di dalam laci almari plastik milik ibu mentua tertuduh - Ibu mentua tertuduh merupakan seorang penagih dan pengedar dadah jenis syabu - Sama ada anggapan milikan dan pengetahuan dapat disangkal oleh pembelaan - Sama ada wujud inferen berkenaan penglibatan ibu mentua defendan dengan dadah-dadah yang ditemui - Sama ada pengetahuan berkenaan kewujudan dadah di dalam premis semata-mata boleh membuktikan tertuduh mempunyai milikan terhadap dadah berbahaya

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CLJ 2017 Volume 10 (Part 2)

FEDERAL COURT

Jaideep Singh Dalip Singh v. ASP Mahathir Abdullah Sapawi & Ors
Md Raus Sharif PCA, Hasan Lah, Zainun Ali, Azahar Mohamed, Aziah Ali FCJJ
(Criminal Procedure; Administrative Law - Habeas corpus - Unlawful detention - Proper mode of proceeding to mount challenge on unlawful detention) [2017] 10 CLJ 145 [FC]

Kerajaan Malaysia v. Mudek Sdn Bhd
Suriyadi Halim Omar, Zainun Ali, Zaharah Ibrahim, Prasad Sandosham Abraham, Jeffrey Tan FCJJ
(Civil Procedure; Revenue Law - Recovery proceedings for tax - Whether issue as to chargeable gain accrued and/or disposal of assets constituted triable issue - Right forum to hear and decide) [2017] 10 CLJ 158 [FC]

COURT OF APPEAL

Anthony Lawrence Bourke & Anor v. CIMB Bank Bhd
Rohana Yusuf, Vernon Ong Lam Kiat, Hasnah Mohammed Hashim JJCA
(Banking - Negligence - Failure of bank to pay progressive payment to developer upon issuance of invoice by developer) [2017] 10 CLJ 167 [CA]

Lembaga Kemajuan Johor Tenggara (Kejora) v. Fajar Kenari Sdn Bhd & Anor
Alizatul Khair Osman, Abang Iskandar, Nallini Pathmanathan JJCA
(Land Law - Alienation and incidents - Whether power to alienate land lay exclusively with State Authority - National Land Code, s. 78(3)) [2017] 10 CLJ 187 [CA]

Wong Yee Boon v. Gainvest Builders
Abang Iskandar, Badariah Sahamid, Zamani A Rahim JJCA
(Contract - Introducer agreement - Undertaking to use influence and close connections to secure subcontract works - Whether in contravention of public policy - Whether illegal pursuant to s. 24 of Contracts Act 1950) [2017] 10 CLJ 209 [CA]

HIGH COURT

Aktif Perunding Sdn Bhd v. ZNVA & Associates Sdn Bhd
Wong Kian Kheong JC
(Intellectual Property; Contract - Copyright - Artistic work - Whether main contractor could use drawings without consultant's knowledge and consent - Copyright Act 1987, ss. 3, 7, 10, 25 & 26) [2017] 10 CLJ 226 [HC]

Thor Lye Suan v. Chua Siew Kee (Cai Xiuqi) & Ors
Choo Kah Sing JC
(Company Law - Derivative action - Locus standi - Pre-requisite in bringing common law derivative action) [2017] 10 CLJ 250 [HC]

SUBJECT INDEX

ADMINISTRATIVE LAW

Remedies - Habeas corpus - Application for - Unlawful detention - Allegation of - Remand orders issued by Magistrate under s. 4(1)(a) of Prevention of Crime Act 1959 ('POCA') - Preliminary objection raised - Proper mode of proceeding to mount challenge on unlawful detention - Whether ought to be by way of appeal or by revision of High Court - Whether writ of habeas corpus right mode of proceeding to challenge legality of detention - Whether cases of State Government of Negeri Sembilan & Ors v. Muhammad Juzaili and Madjai Sanusi v. Pengarah Imigresen Negeri Johor applicable - Competency of detaining authority - Whether powers under POCA synonymous with Magistrate executing powers under Subordinate Courts Act 1948 - Whether habeas corpus application ought to have been heard on its merit by High Court
Jaideep Singh Dalip Singh v. ASP Mahathir Abdullah Sapawi & Ors
(Md Raus Sharif PCA, Hasan Lah, Zainun Ali, Azahar Mohamed, Aziah Ali FCJJ) [2017] 10 CLJ 145 [FC]

BANKING

Banks and banking business - Negligence - Allegation of - Failure of bank to pay progressive payment to developer upon issuance of invoice by developer - Sale and purchase agreement terminated as a result of bank's failure to make progressive payment - Claim for damages against bank - Whether bank obligated to make payments as invoice issues after drawdown expiry date - Whether bank waived contractual right to make payments based on earlier payments after drawdown expiry date - Whether clause in loan agreement absolved liability against bank
Anthony Lawrence Bourke & Anor v. CIMB Bank Bhd
(Rohana Yusuf, Vernon Ong Lam Kiat, Hasnah Mohammed Hashim JJCA) [2017] 10 CLJ 167 [CA]

CIVIL PROCEDURE

Summary judgment - Triable issues - Recovery proceedings for tax - Whether there was chargeable gain - Whether there was triable issue - Whether there has been chargeable gain accruing and/or disposal of assets between buyer and seller prior to assessment raised against taxpayer - Whether issue as to chargeable gain accrued and/or disposal of assets constituted triable issue - Right forum to hear and decide on whether there has been chargeable gain accruing and/or disposal of assets under assessment raised - Rules of the High Court 1980, O. 14
Kerajaan Malaysia v. Mudek Sdn Bhd
(Suriyadi Halim Omar, Zainun Ali, Zaharah Ibrahim, Prasad Sandosham Abraham, Jeffrey Tan FCJJ) [2017] 10 CLJ 158 [FC]

COMPANY LAW

Derivative action - Locus standi - Pre-requisite in bringing common law derivative action - Action by widow for estate of deceased - Letter of administration not extracted upon obtaining order for administration of estate - Whether widow clothed with representative character - Whether there were 'special circumstances' to avail widow with locus standi
Thor Lye Suan v. Chua Siew Kee (Cai Xiuqi) & Ors
(Choo Kah Sing JC) [2017] 10 CLJ 250 [HC]

CONTRACT

Building contract - Commission - Main contractor appointed consultant by way of letter of intent - Consultant produced mechanical and electrical engineering drawings - Whether consultant author of drawings - Whether consultant owned copyright of drawings - Whether letter of intent constituted 'commission' - Whether letter of intent order for consultant to prepare mechanical and electrical engineering drawings - Whether letter of intent express/implied commission - Whether author has moral rights on drawings - Copyright Act, s. 26
Aktif Perunding Sdn Bhd v. ZNVA & Associates Sdn Bhd
(Wong Kian Kheong JC) [2017] 10 CLJ 226 [HC]

Illegality and public policy - Introducer agreement - Undertaking to use influence and close connections with top management of company to secure subcontract works - Claim for remuneration upon successful award of subcontract - Whether there was influence peddling to procure subcontract - Whether in contravention of public policy - Whether agreement illegal pursuant to s. 24 of Contracts Act 1950 - Whether marking up of price of items in revised quotations solely for purpose of providing for introducer fees tantamount to reaping unreasonable and unlawful profits from public funds - Whether agreement for payment of money to exercise influence immoral - Contracts Act 1950, s. 24(j) - Whether introducer agreement void ab initio
Wong Yee Boon v. Gainvest Builders
(Abang Iskandar, Badariah Sahamid, Zamani A Rahim JJCA) [2017] 10 CLJ 209 [CA]

CRIMINAL PROCEDURE

Habeas corpus - Application for - Unlawful detention - Allegation of - Remand orders issued by Magistrate under s. 4(1)(a) of Prevention of Crime Act 1959 ('POCA') - Preliminary objection raised - Proper mode of proceeding to mount challenge on unlawful detention - Whether ought to be by way of appeal or by revision of High Court - Whether writ of habeas corpus right mode of proceeding to challenge legality of detention - Whether cases of State Government of Negeri Sembilan & Ors v. Muhammad Juzaili and Madjai Sanusi v. Pengarah Imigresen Negeri Johor applicable - Competency of detaining authority - Whether powers under POCA synonymous with Magistrate executing powers under Subordinate Courts Act 1948 - Whether habeas corpus application ought to have been heard on its merit by High Court
Jaideep Singh Dalip Singh v. ASP Mahathir Abdullah Sapawi & Ors
(Md Raus Sharif PCA, Hasan Lah, Zainun Ali, Azahar Mohamed, Aziah Ali FCJJ) [2017] 10 CLJ 145 [FC]

INTELLECTUAL PROPERTY

Copyright - Artistic work - Graphic work - Dispute between main contractor and consultant - Consultant produced mechanical and electrical engineering drawings before appointment was terminated - Whether mechanical and electrical engineering drawings eligible for copyright - Ownership of drawings - Whether consultant was author of drawings - Whether author owned copyright and had moral rights on drawings - Whether main contractor commissioned consultant to prepare drawings - Whether fraud was committed by replacing consultant's name on title block with new consultant - Whether main contractor could use drawings without consultant's knowledge and consent - Copyright Act 1987, ss. 3, 7, 10, 25 & 26
Aktif Perunding Sdn Bhd v. ZNVA & Associates Sdn Bhd
(Wong Kian Kheong JC) [2017] 10 CLJ 226 [CA]

LAND LAW

Alienation and incidents - Obtaining approval for alienation of land - Processing of - State Authority rejected application for re-alienation of land - Whether due to actions of Land Administrator - Whether Land Administrator breached duty and obligation to ensure alienation of land be granted to plaintiff company - Whether there existed contract between plaintiff company and Land Administrator - Whether Land Administrator duty-bound to obtain approval for alienation of land - Whether Land Administrator appointed as plaintiff's legal agent to apply for alienation of land - Whether Land Administrator in position to impose on State Authority that land be alienated exclusively to plaintiff company - Whether power to alienate land lay exclusively with State Authority - National Land Code, s. 78(3)
Lembaga Kemajuan Johor Tenggara (Kejora) v. Fajar Kenari Sdn Bhd & Anor
(Alizatul Khair Osman, Abang Iskandar, Nallini Pathmanathan JJCA) [2017] 10 CLJ 187 [CA]

REVENUE LAW

Income tax - Chargeable gain - Recovery proceedings for tax - Whether there was chargeable gain - Whether there was triable issue - Whether there has been chargeable gain accruing and/or disposal of assets between buyer and seller prior to assessment raised against taxpayer - Whether issue as to chargeable gain had accrued and/or disposal of assets constituted triable issue - Right forum to hear and decide on whether there has been chargeable gain accruing and/or disposal of assets under assessment raised - Whether appeal lodged - Real Property Gains Tax Act 1976, ss. 18, 21 & 23
Kerajaan Malaysia v. Mudek Sdn Bhd
(Suriyadi Halim Omar, Zainun Ali, Zaharah Ibrahim, Prasad Sandosham Abraham, Jeffrey Tan FCJJ) [2017] 10 CLJ 158 [FC]

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LNS Article(s)

1. DUTY TO MAKE REASONABLE ADJUSTMENTS* ^{[Read excerpt]}
   DAVID BLEIMAN**STEPHEN HARDY   [2017] 1 LNS(A) ci

[2017] 1 LNS(A) ci



UNITED KINGDOM

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DUTY TO MAKE REASONABLE ADJUSTMENTS*

DAVID BLEIMAN**
STEPHEN HARDY  

Are tribunals under a duty to make reasonable adjustments to facilitate the effective participation of disabled persons in proceedings? How should this duty be carried out? What is the correct approach to deciding whether any act or omission by the tribunal amounts to an error of law? These were the key issues considered by the Employment Appeal Tribunal (EAT) in the recent case of Rackham.^[1]

The EAT's findings and guidance, arising in the context of an Employment Tribunal (ET) which, in this case, was commended for its approach and the adjustments made, appear to be of wider significance. That is because the starting point of the judgment is that an ET, as an organ of the state, as a public body, has an undisputed duty to make reasonable adjustments to accommodate the disabilities of claimants. Plainly, as Lang staff J acutely put it:

'We do not think it could sensibly be disputed that a tribunal has a duty as an organ of the state, as a public body, to make reasonable adjustments...(para 32 of the judgment in Rackham).'

. . .

* Published with kind permission of the Judicial Communications Office, Judiciary of England and Wales (https://www.judiciary.gov.uk/wp-content/uploads/2016/11/bleiman-hardy-reasonable-adjustments-1.pdf).

** David Bleiman is a member of the Employment Appeal Tribunal & Stephen Hardy is a judge in the First-tier Tribunal (Social Entitlement) (Tribunals, Spring 2016). 

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2. INJUNCTIONS AS A BACKDOOR MEANS TO BIND A BANK'S PREROGATIVE TO TRANSFER ITS EMPLOYEES* ^{[Read excerpt]}
   REENA ENBASEGARAM [2017] 1 LNS(A) xcviii

[2017] 1 LNS(A) xcviii



MALAYSIA

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INJUNCTIONS AS A BACKDOOR MEANS TO BIND A BANK'S PREROGATIVE TO TRANSFER ITS EMPLOYEES*

REENA ENBASEGARAM

In this article, Reena Enbasegaram considers the High Court decision on injunctions.

Introduction

Recently, a ripple was caused within the banking industry when the National Union of Bank Employees, State of Malaya ("NUBE") obtained an ex-parte injunction which directly challenged a bank's contractual right to transfer its employees.

NUBE's membership is open to all employees whose job contents consist mainly of clerical functions irrespective of the designation; excluding those who are employed in a managerial, executive, confidential or security capacity in commercial banks in Peninsular Malaysia.

. . .

* Published with kind permission of M/s Shearn Delamore & Co.

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