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Issue #2/2018 11 January 2018

New This Week Case(s) of the Week LOW CHI YONG v. LOW CHI HONG & ANOR [2018] 1 CLJ 287 Latest Cases Legal Network Series CLJ 2018 Volume 1 (Part 3) Articles LNS Article(s) Legislation Highlights Principal Acts Amending Acts PU(A) PU(B) Legislation Alert

LOW CHI YONG v. LOW CHI HONG & ANOR [2018] 1 CLJ 287
FEDERAL COURT, PUTRAJAYA
ZULKEFLI AHMAD MAKINUDIN PCA, SURIYADI HALIM OMAR FCJ, HASAN LAH FCJ, ZAINUN ALI FCJ, AZIAH ALI FCJ
[CIVIL APPEAL NO: 02(f)-16-03-2017 (K)]
06 NOVEMBER 2017

INTELLECTUAL PROPERTY: Trade mark – Infringement – Allegation that trade mark was fraudulently obtained by registered proprietor – Registered proprietor director of company of which trade mark was used – Conclusiveness of registration of trade mark – Whether trade mark registered in sole name of proprietor was bona fide – Whether registered proprietor owned valid trade mark – Whether registered proprietor had exclusive rights to use trade mark and to prevent others from using trade mark or any mark similar to it – Whether there was infringement of trade mark – Whether trade mark used by company with registered proprietor’s consent and approval – Whether registered proprietor abandoned exclusive right to trade mark in perpetuity – Whether registered proprietor guilty of estoppel, acquiescence or laches – Trade Marks Act 1976, ss. 35(1), 36(1), 37, 38, 40 & 41

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Legal Network Series

[2016] 1 LNS 1009	GROUPON SDN BHD lwn. TRIBUNAL TUNTUTAN PENGGUNA & SATU LAGI	UNDANG-UNDANG PENTADBIRAN: Semakan kehakiman - Certiorari - Pembatalan keputusan tribunal tuntutan pengguna - Ejen penjualan online dipertanggungjawabkan untuk memulangkan kembali bayaran yang dibuat oleh pengguna ekoran kegagalan prinsipal untuk membekalkan perkhidmatan kepada pengguna - Pembelian baucer online berdasarkan representasi ejen - Sama ada pemohon telah diberi peluang pendengaran - Sama ada keputusan tribunal adalah sah dan munasabah
[2016] 1 LNS 1071	SYED NASARUDIN SYED ABDUL HADI v. MOHD SALLEH MOHD TAHIR & ANOR	ADMINISTRATIVE LAW: Disciplinary board - Appeal against decision of advocates & solicitors disciplinary board - Appeal against order for restitution of sum of money and striking off of roll as advocate and solicitor - Applicant was found guilty of having pre-signed blank clients' account cheques but not of misappropriation of funds - Absence of element of dishonesty - Whether sentence imposed by disciplinary board to strike off applicant from roll of advocates and solicitors was extremely perverse - Whether sentence imposed by disciplinary board warranted court's interference - Legal Profession Act 1976, s. 103E
[2016] 1 LNS 1083	PP lwn. CHE JAN ZINON	PROSEDUR JENAYAH: Rayuan - Rayuan oleh pihak pendakwaan - Rayuan terhadap keputusan hakim bicara yang melepaskan dan membebaskan tertuduh di akhir kes pembelaan - Pertuduhan dibawah s. 420 Kanun Keseksaan - Pertuduhan yang tidak jelas dan tepat - Sama ada berlaku prejudis dan ketidakadilan kepada tertuduh - Sama ada tertuduh wajar dilepaskan dan dibebaskan daripada pertuduhan PROSEDUR JENAYAH: Pertuduhan - Pindaan - Kuasa mahkamah untuk meminda pertuduhan - Pendakwaan gagal membuktikan kes prima facie terhadap pertuduhan asal - Sama ada mahkamah bicara wajib meminda pertuduhan yang tidak disokong kuat oleh keterangan prima facie - Sama ada tertuduh wajar dilepaskan dan dibebaskan dari pertuduhan sekiranya pertuduhan tidak disokong kuat oleh keterangan prima facie - Sama ada pihak pendakwaan telah gagal membuktikan kesnya - Sama ada kecacatan pada pertuduhan menjejaskan akar umbi kes pendakwaan - Kanun Tatacara Jenayah, s. 173(h)(ii)
[2017] 1 LNS 58	PP v. CHUA SWEE HOCK	CRIMINAL LAW: Dangerous drugs - Trafficking - Possession - Drugs were found in one room in house where accused was arrested - Accused attempted to flee - Accused was only person in premise prior to his arrest - Impugned drugs were left in an open and visible state - Whether accused had knowledge of drugs - Whether accused was in actual possession of drugs - Whether statutory presumption under s. 37(da) of Dangerous Drugs Act 1952 could be invoked to prove trafficking CRIMINAL PROCEDURE: Defence - Denial - Charge relating to trafficking of dangerous drugs and possession of drugs - Drugs were found in one room in house where accused was arrested - Accused alleged drugs belonged to different tenant - Discrepancies in accused's evidence - Whether there was sufficient Alcontara notice given by accused with respect to essential parts of his defence - Whether defence was an afterthought - Whether accused had rebutted statutory presumption of trafficking under s. 37 (da) Dangerous Drugs Act 1952
[2017] 1 LNS 448	IN RE: AZMER IDRIS; EX PARTE: MALAYSIA DEBT VENTURES BERHAD	BANKRUPTCY: Practice and procedure - Stay of proceedings - Sufficient reasons - Judgment debtor alleged bankruptcy action contradicted Syariah principles - Bankruptcy proceedings commenced against guarantors - Whether judgment debtor was a social guarantor under s. 3 of Bankruptcy Act 1967 - Whether judgment debtor had adduced sufficient reasons for a stay of bankruptcy proceeding - Whether judgment creditor ought to have enforced other securities before commencing with bankruptcy proceedings against judgment debtor - Whether bankruptcy court could question validity of judgment - Bankruptcy Act 1967, s. 97

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CLJ 2018 Volume 1 (Part 3)

FEDERAL COURT

Low Chi Yong v. Low Chi Hong & Anor
Zulkefli Ahmad Makinudin PCA, Suriyadi Halim Omar, Hasan Lah, Zainun Ali, Aziah Ali FCJJ
(Intellectual Property - Trade mark - Infringement - Conclusiveness of registration of trade mark - Whether registered proprietor owned valid trade mark) [2018] 1 CLJ 287 [FC]

PP v. Awalluddin Sham Bokhari
Suriyadi Halim Omar, Abu Samah Nordin, Ramly Ali, Zaharah Ibrahim, Jeffrey Tan FCJJ
(Criminal Law - Money laundering - Whether properties obtained out of proceeds of unlawful activity - Procedure - Whether investigation officer conferred wide powers to investigate offence) [2018] 1 CLJ 305 [FC]

COURT OF APPEAL

National Union Of Hotel, Bar & Restaurant Workers Peninsular Malaysia & Anor v. Mahsyur Mutiara Sdn Bhd (Sheraton Langkawi Beach Resort)
Mohd Zawawi Salleh, Zamani A Rahim, Zaleha Yusof JJCA
(Labour Law - Employment - Retirement benefits - Whether service charge formed part of 'wages' for purpose of computing retirement benefits) [2018] 1 CLJ 318 [CA]

Nur Rasidah Jamaludin v. Malayan Banking Bhd & Other Appeals
Lim Yee Lan, Varghese George, Harmindar Singh Dhaliwal JJCA
(Tort - Defamation - Immunity - Trade union - Non-payment of performance bonuses to bank's employees - Whether trade union dispute) [2018] 1 CLJ 330 [CA]

PP v. Mohd Hussein Mohd Kassim
Mohtarudin Baki, Vernon Ong Lam Kiat, Harmindar Singh Dhaliwal JJCA
(Criminal Procedure; Civil Procedure - Appeal against sentence - Notice of appeal - Filing by way of fax transmission - Whether considered as filing of notice of appeal) [2018] 1 CLJ 342 [CA]

HIGH COURT

Ang Pok Hong & Anor v. PP
Mohamad Shariff Abu Samah JC
(Criminal Procedure; Jurisdiction - Referral from subordinate court - Jurisdiction to decide on constitutional issues raised under s. 30 of Courts of Judicature Act 1964) [2018] 1 CLJ 347 [HC]

Kejuruteraan Bintai Kindenko Sdn Bhd v. Serdang Baru Properties Sdn Bhd & Another Case (No 2)
Lee Swee Seng J
(Arbitration - Award - Whether arbitrator has discretion to award pre-award interest) [2018] 1 CLJ 369 [HC]

Tun Dr Mahathir Mohamad v. Tan Sri Mohd Sidek Hassan & Ors
Azizah Nawawi J
(Administrative Law - Judicial review - Application to quash decision by Royal Commission of Inquiry ('RCI') - Whether RCI has power on appointment and/or removal of Commissioners) [2018] 1 CLJ 383 [HC]

Yii Chee Ming v. Yu Chee Hoe & Ors
Celestina Stuel Galid JC
(Civil Procedure - Striking out - Application for - Action by shareholder against directors - Whether shareholder aggrieved person - Whether originating summons were sustainable) [2018] 1 CLJ 397 [HC]

SUBJECT INDEX

ADMINISTRATIVE LAW

Judicial review - Remedies - Certiorari - Application to quash decision by Royal Commission of Inquiry ('RCI') in dismissing applicant's application to disqualify first and fourth respondents from continuing as members of RCI - Appointment and replacement of Commissioners - Whether at discretion of Yang di-Pertuan Agong ('YDPA') - Whether RCI has power on appointment and/or removal of Commissioners - Whether RCI correctly refused to accede to applicant's application to disqualify first and fourth respondents - Whether application frivolous and vexatious - Commissions of Enquiry Act 1950, ss. 2 & 4
Tun Dr Mahathir Mohamad v. Tan Sri Mohd Sidek Hassan & Ors
(Azizah Nawawi J) [2018] 1 CLJ 383 [HC]

Judicial review - Remedies - Mandamus - Application to compel Government of Malaysia to advice Yang di-Pertuan Agong ('YDPA') to terminate appointments of first and fourth respondents - Appointment and replacement of Commissioners in Royal Commission of Inquiry ('RCI') - Whether at discretion of YDPA - Whether issue of statutory duty arose - Whether change to composition of RCI limited to specific grounds - Whether arts. 40(1) and 40(1A) of Federal Constitution makes reference only to Cabinet or Minister - Whether application misconceived - Whether order of mandamus had legal basis - Whether against public interest to challenge RCI - Whether application frivolous and vexatious - Commissions of Enquiry Act 1950, ss. 2 & 4 - Specific Relief Act 1950, s. 44
Tun Dr Mahathir Mohamad v. Tan Sri Mohd Sidek Hassan & Ors
(Azizah Nawawi J) [2018] 1 CLJ 383 [HC]

ARBITRATION

Award - Enforcement - Application to enforce award as varied by arbitrator - Whether arbitrator has discretion to award pre-award interest - Whether award contained decision on matter beyond scope of submission to arbitration - Whether whole award to be set aside
Kejuruteraan Bintai Kindenko Sdn Bhd v. Serdang Baru Properties Sdn Bhd & Another Case (No 2)
(Lee Swee Seng J) [2018] 1 CLJ 369 [HC]

CIVIL PROCEDURE

Notice of motion - Opposition to - Notice of motion filed to have appeal struck out on ground it was filed out of time - Whether notice of appeal filed one day late - Mode of filing - Filing by way of fax transmission - Whether considered as filing of notice of appeal - Whether court official had authority in accepting documents not in accordance with prescribed rules and procedure - Rules of the Court of Appeal 1994, r. 58(1)
PP v. Mohd Hussein Mohd Kassim
(Mohtarudin Baki, Vernon Ong Lam Kiat, Harmindar Singh Dhaliwal JJCA) [2018] 1 CLJ 342 [CA]

Striking out - Application for - Action by shareholder against directors - Allegation that shareholder's rights and interest affected by directors' failure/refusal to comply with statutory obligations - Application by directors to strike out shareholder's originating summons - Whether shareholder had necessary locus standi - Whether shareholder aggrieved person - Whether originating summons ought to be converted to writ action to ensure that all disputed facts and issues were properly and judiciously tried and adjudicated - Whether it was plain and obvious that originating summons were unsustainable - Whether shareholder had reasonable cause of action - Whether originating summons frivolous, vexatious or abuse of court's process - Whether originating summons ought to be struck out - Rules of Court 2012, O. 18 r. 19(1)(a), (b) & (d)
Yii Chee Ming v. Yu Chee Hoe & Ors
(Celestina Stuel Galid JC) [2018] 1 CLJ 397 [HC]

CRIMINAL LAW

Money laundering - Forfeiture - Application for forfeiture of properties - Whether properties obtained out of proceeds of unlawful activity - Whether evidence of prosecution rebutted on balance of probabilities - Whether properties ought to be forfeited - Anti-Money Laundering And Anti-Terrorism Financing Act 2001, s. 56(1)
PP v. Awalluddin Sham Bokhari
(Suriyadi Halim Omar, Abu Samah Nordin, Ramly Ali, Zaharah Ibrahim, Jeffrey Tan FCJJ) [2018] 1 CLJ 305 [CA]

Money laundering - Forfeiture - Application for forfeiture of properties under s. 56(1) of Anti-Money Laundering And Anti-Terrorism Financing Act 2001 ('AMLATFA') - Procedure - Whether investigation officer conferred wide powers to investigate offence - Affidavit evidence of investigation officer - Whether hearsay - Whether any property, record, report or document obtained pursuant to s. 32(2) admissible as evidence in any proceedings in any court - Whether evidence of prosecution rebutted on balance of probabilities - Whether properties ought to be forfeited - Anti-Money Laundering And Anti-Terrorism Financing Act 2001, ss. 32(2), 40 & 56(1)
PP v. Awalluddin Sham Bokhari
(Suriyadi Halim Omar, Abu Samah Nordin, Ramly Ali, Zaharah Ibrahim, Jeffrey Tan FCJJ) [2018] 1 CLJ 305 [FC]

CRIMINAL PROCEDURE

Appeal - Appeal against sentence - Notice of appeal - Whether filed out of time - Mode of filing - Filing by way of fax transmission - Whether considered as filing of notice of appeal - Whether court official had authority in accepting documents not in accordance with prescribed rules and procedure - Rules of the Court of Appeal 1994, r. 58(1)
PP v. Mohd Hussein Mohd Kassim
(Mohtarudin Baki, Vernon Ong Lam Kiat, Harmindar Singh Dhaliwal JJCA) [2018] 1 CLJ 342 [CA]

Jurisdiction of court - Referral from subordinate court - Jurisdiction to decide on constitutional issues raised under s. 30 of Courts of Judicature Act 1964 ('CJA') - Whether involved articles of Federal Constitution - Applicants charged for insider trading offences - Whether charges arbitrary and offensive - Whether co-existence and operation of provisions of s. 188(2) and (4) and s. 201(5)(a) & (b), and sub-ss. 201(8) and (9) of Capital Market and Services Act 2007 violated arts. 5, 7, 8 & 13 of Federal Constitution - Whether there were merits in various constitutional arguments raised - Whether decision of Federal Court necessary for determination of charges against applicants in Sessions Court - Whether court obliged to refer questions raised as special case stated to Federal Court pursuant to s. 84(4) and 85 of CJA - Rules of the Federal Court 1995, rr. 31, 32 & 33 - Federal Constitution, art. 128
Ang Pok Hong & Anor v. PP
(Mohamad Shariff Abu Samah JC) [2018] 1 CLJ 347 [HC]

LABOUR LAW

Employment - Retirement - Retirement benefits - Claim for service charges to be included in calculation of retirement benefits - Collective agreement silent on definition of 'wages' - Whether definition in Employment Act 1955 to be adopted - Whether service charge formed part of 'wages' for purpose of computing retirement benefits
National Union Of Hotel, Bar & Restaurant Workers Peninsular Malaysia & Anor v. Mahsyur Mutiara Sdn Bhd (Sheraton Langkawi Beach Resort)
(Mohd Zawawi Salleh, Zamani A Rahim, Zaleha Yusof JJCA) [2018] 1 CLJ 318 [CA]

Trade union - Collective agreement - Retirement benefits - Claim for service charges to be included in calculation of retirement benefits - Collective agreement silent on definition of 'wages' - Whether definition in Employment Act 1955 to be adopted - Whether service charge formed part of 'wages' for purpose of computing retirement benefits
National Union Of Hotel, Bar & Restaurant Workers Peninsular Malaysia & Anor v. Mahsyur Mutiara Sdn Bhd (Sheraton Langkawi Beach Resort)
(Mohd Zawawi Salleh, Zamani A Rahim, Zaleha Yusof JJCA) [2018] 1 CLJ 318 [CA]

INTELLECTUAL PROPERTY

Trade mark - Infringement - Allegation that trade mark was fraudulently obtained by registered proprietor - Registered proprietor director of company of which trade mark was used - Conclusiveness of registration of trade mark - Whether trade mark registered in sole name of proprietor was bona fide - Whether registered proprietor owned valid trade mark - Whether registered proprietor had exclusive rights to use trade mark and to prevent others from using trade mark or any mark similar to it - Whether there was infringement of trade mark - Whether trade mark used by company with registered proprietor's consent and approval - Whether registered proprietor abandoned exclusive right to trade mark in perpetuity - Whether registered proprietor guilty of estoppel, acquiescence or laches - Trade Marks Act 1976, ss. 35(1), 36(1), 37, 38, 40 & 41
Low Chi Yong v. Low Chi Hong & Anor
(Zulkefli Ahmad Makinudin PCA, Suriyadi Halim Omar, Hasan Lah, Zainun Ali, Aziah Ali FCJJ) [2018] 1 CLJ 287 [FC]

JURISDICTION

Courts - Referral from subordinate court - Jurisdiction to decide on constitutional issues raised under s. 30 of Courts of Judicature Act 1964 ('CJA') - Whether involved articles of Federal Constitution - Applicants charged for insider trading offences - Whether charges arbitrary and offensive - Whether co-existence and operation of provisions of s. 188(2) and (4) and s. 201(5)(a) & (b), and sub-ss. 201(8) and (9) of Capital Market and Services Act 2007 violated arts. 5, 7, 8 & 13 of Federal Constitution - Whether there were merits in various constitutional arguments raised - Whether decision of Federal Court necessary for determination of charges against applicants in Sessions Court - Whether court obliged to refer questions raised as special case stated to Federal Court pursuant to ss. 84(4) and 85 of CJA - Rules of the Federal Court 1995, rr. 31, 32 & 33 - Federal Constitution, art. 128
Ang Pok Hong & Anor v. PP
(Mohamad Shariff Abu Samah JC) [2018] 1 CLJ 347 [HC]

TORT

Defamation - Immunity - Trade union - Non-payment of performance bonuses to bank's employees ('defendants') - Defamatory publication against bank by defendants - Bank commenced defamation action against defendants - Whether dispute amounted to trade union dispute - Whether defendants enjoyed absolute immunity from actions premised upon tort of libel - Trade Unions Act 1959, ss. 22(1) & 22(2)
Nur Rasidah Jamaludin v. Malayan Banking Bhd & Other Appeals
(Lim Yee Lan, Varghese George, Harmindar Singh Dhaliwal JJCA) [2018] 1 CLJ 330 [CA]

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LNS Article(s)

1. THE CONVERGENCE OF CONSTITUTIONAL RIGHTS AND ISLAMIC JURISPRUDENCE:
   THE RIGHT TO EQUALITY AND EQUAL PROTECTION UNDER THE LAW OF TRANSSEXUALS IN MALAYSIA ^{[Read excerpt]}
   MAGESWARY SIVA SUBRAMANIAM^[i]ASMIDA AHMAD^[ii]YUSNITA BINTI MOHD YUSOF^[iii]NUR FAZINI ASRO BT RAMZI SULAIMAN^[iv] [2018] 1 LNS(A) iii

[2018] 1 LNS(A) iii



MALAYSIA

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THE CONVERGENCE OF CONSTITUTIONAL RIGHTS AND ISLAMIC JURISPRUDENCE:
THE RIGHT TO EQUALITY AND EQUAL PROTECTION UNDER THE LAW OF TRANSSEXUALS IN MALAYSIA

MAGESWARY SIVA SUBRAMANIAM^[i]
ASMIDA AHMAD^[ii]
YUSNITA BINTI MOHD YUSOF^[iii]
NUR FAZINI ASRO BT RAMZI SULAIMAN^[iv]

Introduction: Article 8 of the Federal Constitution of Malaysia and the Right to Equality

'All persons are equal before the law and are entitled to the equal protection under the law.' - Article 8(1), Federal Constitution of Malaysia

The inclusion of fundamental liberties within the constitutional framework of Malaysia^[1] based on the recommendations of the Reid Commission^[2] was intended to act as the lynchpin of the newly independent nation and the democratic principles under which the Federation of Malaya^[3] and subsequently Malaysia^[4] was birthed. One of the pillars of the fundamental liberties enshrined in the Malaysian Constitution is the right to equality and equal protection under the law provided for by Article 8(1). The express wording of Article 8(1) of the Federal Constitution leaves no room for doubt that this fundamental right is enshrined in the Malaysian document of destiny and is a right to which all Malaysians are entitled to. Article 8 (1) in the Federal Constitution is not only a reflection of the importance of protecting equality to preserve the democratic principles which are the very foundation of the nation but it also satisfies universally accepted international standards of human rights.^[5]

. . .

[i] Lecturer Faculty of Law Multimedia University Malaysia, PhD candidate with Multimedia University.

[ii] Lecturer Faculty of Law Multimedia University Malaysia, PhD candidate with National University of Malaysia.

[iii] Lecturer Faculty of Law Multimedia University Malaysia, PhD candidate with International Islamic University Malaysia

[iv] Lecturer Faculty of Law Multimedia University Malaysia.

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2. TAWARRUQ: THE NEW KID ON THE BLOCK* ^{[Read excerpt]}
   MOHAMMAD MAHBUBI ALI [2018] 1 LNS(A) iv

[2018] 1 LNS(A) iv



MALAYSIA

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TAWARRUQ: THE NEW KID ON THE BLOCK*

MOHAMMAD MAHBUBI ALI

Islamic financial products have evolved and developed remarkably from simple and straightforward structures to highly sophisticated and multifaceted instruments. During the 80s and 90s, the Islamic financial products were dominated by deposits and savings, syndicated project financing, Shari'ah-compliant stocks and mutual funds. The last decade has witnessed the unveiling of more complicated structures, including various sukuk models, derivatives, Islamic structured products, Islamic hedge funds, and others. Most, though not all, of them are reverse-engineered replications of conventional products, splicing together nominate contracts from the Islamic fiqh legacy with a few modifications to satisfy legal requirements and be "Shari'ah-compliant".

. . .

* Published with kind permission of the International Institute of Advanced Islamic Studies (IAIS) Malaysia. (www.iais.org.my).

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