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Issue #46/2019
14 November 2019
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New This Week
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CHOW JIEEN & ORS v.
KERAJAAN MALAYSIA (KEMENTERIAN PENDIDIKAN MALAYSIA) & ORS [2019] 10 CLJ 64
HIGH COURT MALAYA, KUALA LUMPUR
S NANTHA BALAN J
[ORIGINATING SUMMONS NO: WA-24NCVC-1702-10-2016]
06 APRIL 2018
The students of the branch of a Chinese Private Secondary School located in another State, having obtained approval from the Ministry of Education for its establishment and to teach both the national and non-national curricula, were eligible to sit for the United Examination Certificate conducted by the United Chinese School Committees' Association of Malaysia ('Dong Zong') and were not required to obtain separate written approval of the Director of Examinations as such approval to hold and conduct examinations was implicit in the approval by the Minister to register the school.
EDUCATION: Examination - Private school - Chinese Private Secondary Schools ('CPSS') - Unified Examination Certificate ('UEC examination') conducted by United Chinese School Committees' Association of Malaysia ('Dong Zong') - Sekolah Menengah Chong Hwa, Kuantan incorporated and registered in 2012 by Ministry of Education pursuant to National Education Policy and Education Act 1996 - Whether students eligible to sit for UEC examination - Whether school part of CPSS - Whether school obtained written permission to teach non-national curriculum - Whether conduct of UEC examination by Dong Zong and students taking examination lawful - Education Act 1996, s. 69(1)
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Muniandy S Subramaniam v. PP [2018] 1 LNS 2 (CA) affirming the High Court case of PP v. Muniandy S Subramaniam [Criminal Trial No: 45A -6-04/2012]
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Vania Osman v. PP [2018] 1 LNS 1082 (CA) affirming the High Court case of PP v. Vania Osman [2016] 1 LNS 1254
Legal Network Series
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PWC CORPORATION SDN BHD v. IREKA ENGINEERING & CONSTRUCTION SDN BHD & OTHER CASE (NO 1) CONSTRUCTION LAW: Adjudication - Setting aside - Application to set aside adjudication decision - Jurisdictional challenge - Adjudicator proceeded with adjudication despite respondent not disputing payment claim - Respondent refusing to make payment - Adjudicator failing to decide on a set-off involving a separate contruction contract - Whether adjudicator has jurisdiction to hear and determine dispute - Whether there was a breach of natural justice - Whether it was appropriate to adjudicate dispute by deciding on validity of set-off CIVIL PROCEDURE: Stay of execution - Enforcement order - Stay of execution of enforcement order - Enforcement of adjudication order - Stay pending appeal - Special circumstances - Whether special circumstances shown to justify a stay of execution of enforcement order
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PP lwn. ROSLI YUSOF UNDANG-UNDANG JENAYAH: Dadah berbahaya - Pengedaran - Milikan - Dadah jenis Cannabis seberat 112,892g - Dadah dijumpai di dalam kereta yang dipandu oleh tertuduh - Dadah dijumpai disimpan dalam beg guni di dalam boot belakang kereta - Sama ada tertuduh mempunyai jagaan dan kawalan beg guni - Sama ada tertuduh sendiri boleh dengan mengecualikan orang lain, menguruskan beg guni - Sama ada tertuduh mempunyai milikan sebenar dadah PROSEDUR JENAYAH: Pembelaan - Penafian - Pengangkut tidak bersalah - Dakwaan dadah milik penama lain - Tertuduh berseorangan ketika serbuan - Penama yang didakwa oleh tertuduh ditahan tetapi tiada dadah dijumpai bersamanya - Sama ada penglibatan penama lain merupakan rekaan tertuduh semata-mata - Sama ada dakwaan tertuduh adalah suatu helah dalam percubaan untuk membebaskan diri daripada pertuduhan
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SALMA YAHYA v. RAMLI MORAD & ANOR LAND LAW: Indefeasibility of title and interests - Fraud - Transfer effected to only one beneficiary - Immediate purchaser for value - Registration of ownership in subsequent transaction was by means of a void instrument - Whether there was fraudulent transfer to exclusion of remaining beneficiaries - Whether instrument of transfer was void - Whether there was a valid title to pass - Whether immediate purchaser's title was defeasible by virtue of ss. 340(2)(b) & 340(3) of National Land Code
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ABDUL RAHIM ISHAK & ANOR v. MUNIANDY MAHALINGAN CIVIL PROCEDURE: Setting aside - Default judgment - Final judgment - Road accident claim - Writ and statement of claim served on insurer - Judgment in default of appearance entered on failure of insurer to take any action to appoint counsel to represent them and to contest claim - Delay - Application filed two years after assessment proceedings - Defendant failed to aver merits of defence in affidavit - Whether there was inordinate delay in filing application - Whether judgment final - Whether it was open for defendant to set aside default judgment - Whether correct procedure was to appeal against default judgment
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ZI PRODUCTION SDN BHD lwn. INSTITUT DARUL RIDZUAN & SATU LAGI SDN BHD KONTRAK: Perjanjian untuk pengurusan acara bagi pihak Kerajaan Negeri Perak - Kemungkiran perjanjian - Penamatan perjanjian - Sama ada plaintif berhak menamatkan perjanjian sekiranya tiada dana daripada penajaan - Sama ada terdapat perjanjian sampingan yang mengubah suai perjanjian di mana defendan-defendan bersetuju untuk menanggung segala kos plaintif bagi menjayakan acara - Sama ada tindakan plaintif untuk menarik diri adalah merupakan pemaksaan dan/atau tekanan ke atas defendan-defendan TORT: Fitnah - tuntutan balas defendan-defendan - Plaintif mengadu melalui saluran Kerajaan Negeri dan Persekutuan dan politik apabila Defendan-defendan enggan membayar plaintif - Sama ada tindakan Plaintif untuk mendapatkan pembayaran daripada Defendan-defendan adalah memfitnah defendan-defendan - Sama ada terdapat innuendo bahawa defendan-defendan merupakan organisasi yang tidak jujur dan menjalankan perniagaan secara tidak beramanah
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CLJ 2019 Volume 10 (Part 1)
The tort of conversion requires proof of the precise goods alleged to have been converted and action lies only if possession or a right to immediate possession to the goods is established. A long interval of inactivity is inconsistent with the assertion of interference and conversion of goods and amounts to abandonment of the goods.
OSK Trustees Bhd & Anor v. Metroplex Holdings Sdn Bhd [2019] 10 CLJ 1 [CA]
TORT: Conversion - Damages - Claim for damages for goods left on property - Sale of property by auction - Whether sale by auction only for land, building and permanent structures - Whether chattels or moveable property on premises excluded - Whether claimant had locus standi - Whether demand clear and unequivocal - Whether reference to general or generic term sufficient - Whether claimant established actual possession or immediate right to possession of goods - Whether substantial delay in initiating claim amounted to abandonment
Hamid Sultan Abu Backer, Mary Lim, Yeoh Wee Siam JJCA
- For the appellants - Lambert Rasa-Ratnam, Sree Harry, Sean Yeow & Aric Wong; M/s Lee Hishammuddin Allen & Gledhill
- For the respondent - M David Morais, Fiona Bodipalar, Raul Lee Bhaskaran & Khor Heng How; M/s Bodipalar Ponnudurai De Silva
A party seeking expungement of a trade mark will not succeed if it ceases to use the mark for seven years or more and fails to take any step to preserve its goodwill within the period. Likewise, a party who claims to be the first user or common law proprietor of a mark will fail in the quest if the said party does not provide plausible explanation as to the origins of the identical trade mark in issue.
SRAM, LLC v. Huan Schen Sdn Bhd [2019] 10 CLJ 31 [CA]
INTELLECTUAL PROPERTY: Trade marks - Expungement - Plaintiff sought to expunge defendant's trade mark - Whether plaintiff proved to be first user and common law proprietor of trade marks - Defendant's trade mark featured in international sports events - Whether plaintiff attempted to obtain benefit of defendant's reputation - Whether reputation and goodwill can be acquired outside Malaysia - Whether cessation of use of plaintiff's trade mark for more than seven years negated application - Whether registration of trade mark more than seven years raised protection under s. 37 of Trade Marks Act 1976 - Whether use of goods caused confusion - Whether application ought to be allowed - Trade Marks Act 1976, ss. 10, 14, 36, 45(1)(a)
INTELLECTUAL PROPERTY: Trade marks - Registration - Plaintiff sought to expunge defendant's trade mark - Defendant's trade mark registered for more than seven years - Whether raised protection under s. 37 of Trade Marks Act 1976 - Whether plaintiff proved to be first user and common law proprietor of trade marks - Defendant's trade mark featured in international sports events - Whether plaintiff attempted to obtain benefit of defendant's reputation - Whether use of goods caused confusion - Whether application ought to be allowed - Trade Marks Act 1976, ss. 10, 14, 36, 45(1)(a)
Abang Iskandar, Badariah Sahamid, Mary Lim JJCA
- For the appellant - Cyrus Das & Nor Athirah Khairol Anuar; M/s Miranda & Samuel
- For the respondent - Ong Boo Seng & Kwok Tat Wai; M/s Zaid Ibrahim
In an application for injunction to prohibit Tenaga Nasional Bhd from disconnecting electricity supply due to alleged tampering of the meter, where corrective measures have already been taken with regard to the meter there is no basis for invoking s. 38(1) of the Electricity Supply Act 1990 as the presumed loss of electricity has ceased to be an issue; maintaining the status quo would thus produce a just result for the period between the date of the application for injunction and the trial proper.
Chew Thai Kay & Anor v. Tenaga Nasional Bhd [2019] 10 CLJ 54 [HC]
CIVIL PROCEDURE: Injunction - Application for - Application to prohibit electricity supplier from disconnecting electricity supply - Discovery of tampering of electricity meter at customer/applicant's premise - Electricity supplier sent notice of disconnection of electricity supply to applicant - Whether applicant has locus standi to file application for injunction - Whether applicant has cause of action against electricity supplier - Whether applicant would suffer losses if injunction not allowed - Whether application for injunction ought to be allowed
UTILITIES: Electricity - Electricity supply - Disconnection - Discovery of tampering of electricity meter at customer's premises - Electricity supplier sent notice of disconnection of electricity supply to customer - Whether electricity supplier ought to be prohibited from disconnecting electricity supply to customer's premise - Electricity Supply Act 1990, ss. 37 & 38(1)
Mohd Radzi Harun JC
- For the plaintiffs - Lai Chee Meng; M/s CM Lai & Partners
- For the defendant - Prithi Verma; M/s Prithi, Junainah & Assocs
The students of the branch of a Chinese Private Secondary School located in another State, having obtained approval from the Ministry of Education for its establishment and to teach both the national and non-national curricula, were eligible to sit for the United Examination Certificate conducted by the United Chinese School Committees' Association of Malaysia ('Dong Zong') and were not required to obtain separate written approval of the Director of Examinations as such approval to hold and conduct examinations was implicit in the approval by the Minister to register the school.
Chow Jieen & Ors v. Kerajaan Malaysia (Kementerian Pendidikan Malaysia) & Ors [2019] 10 CLJ 64 [HC]
EDUCATION: Examination - Private school - Chinese Private Secondary Schools ('CPSS') - Unified Examination Certificate ('UEC examination') conducted by United Chinese School Committees' Association of Malaysia ('Dong Zong') - Sekolah Menengah Chong Hwa, Kuantan incorporated and registered in 2012 by Ministry of Education pursuant to National Education Policy and Education Act 1996 - Whether students eligible to sit for UEC examination - Whether school part of CPSS - Whether school obtained written permission to teach non-national curriculum - Whether conduct of UEC examination by Dong Zong and students taking examination lawful - Education Act 1996, s. 69(1)
S Nantha Balan J
- For the 1st to 3rd plaintiffs - Douglas Yee & Lim Pit Feng; M/s Douglas Yee
- For the 4th plaintiff - Cheang Lek Choy; M/s Lek Choy & Co
- For the 2nd defendant - KF Wong & HS Lim; M/s KF Wong & Lee
- For the 3rd defendant - Ong Siew Wan & Toh Seng Soon; M/s Andrew - David Wong & Ong
Where landowners are not given the right to be heard in an application for enlargement of time to file Form N, the extension order granted is in violation of natural justice and is liable to be set aside ex debito justitae under the inherent powers of the court; Therefore, it follows that a land reference order based on an irregular proceeding must fall.
Lembaga Lebuhraya Malaysia v. Low Fook Lai & Ors [2019] 10 CLJ 84 [HC]
LAND LAW: Acquisition of land - Compensation - Enquiry held by Land Administrator to determine amount of compensation payable to three land owners - Compensation accepted by land owners without appeal - Paymaster obtained High Court extension order - Land owners not served and not made parties - Paymaster obtained a High Court land reference order for refund by land owners of overpayment - Land owners not made parties - Right of hearing of land owners - Whether rule of natural justice breached - Whether claim by Paymaster ought to be dismissed
Choo Kah Sing J
- For the plaintiff - Adi Radlan & Chok Chin You; M/s Adi Radlan & Co
- For the 1st & 2nd defendants - Wong Kim Fatt, Yee Chew Wei, Wong Boon Cheng & Chua Yee Leng; M/s Vooi & Yee
- For the 3rd defendant - M Thomas Philip & Aliff Benjamin; M/s Thomas Philip
A party claiming damages for trade libel and unlawful interference may still be entitled to general damages for loss of goodwill and vindication of reputation notwithstanding that actual loss is not pleaded nor proved; The terms of an order which has been perfected and sealed is to be relied on where the order pronounced by the court is inconsistent with the written grounds of decision.
Md Nayan Salleh & Anor v. Weida Resources Sdn Bhd & Ors [2019] 10 CLJ 96 [HC]
TORT: Damages - Assessment - Unlawful interference of trade and trade libel - Finding of liability - Order for general damages - Sealed order of assessment by Senior Assistant Registrar ('SAR') contained different figure from written grounds of decision - Whether amounted to misdirection - Whether reasons given for difference - Whether vitiated decision - Whether rendered order of SAR bad in law
TORT: Defamation - Libel - Unlawful interference of trade and trade libel - Publication of press statement or article causing damage to goodwill and reputation - Finding of liability - Assessment of general damages - Whether evidence adduced to show extent of losses - Global award for loss of profits grounded on documentary evidence of third party - Whether losses substantiated by evidence - Whether actual damage caused by trade libel pleaded or proven - Whether entitled to general damages for loss of goodwill and vindication of reputation although actual loss not proved
Supang Lian J
- For the appellants - Jimmy Simon Maja; M/s Maja & Assocs
- For the respondents - Cecil Ha; M/s Ibrahim & Co Advocs
While s. 116 of the Legal Profession Act 1976 sets out the manner in which binding agreements for costs are to be entered into between solicitors and clients, that does not per se preclude costs that are agreed to by the client, and thus approved, from being taken into account for the purposes of O. 59 r. 17(3) of the Rules of Court 2012. It is the fact that the client has agreed that is the operative factor in r. 17(3), and not the existence of a binding agreement.
Ng Kim Hoong & Anor v. Pentadbir Tanah Wilayah Persekutuan [2019] 10 CLJ 110 [HC]
CIVIL PROCEDURE: Judgments and orders - Taxation order - Bill of costs - Solicitors represented deceased in respect of acquisition of lands - Whether Deputy Registrar failed to take into account the deceased's agreement to pay fee of 2.5% on additional compensation for acquisitions - Whether agreement upon which solicitors' bill of costs was premised not agreement within s. 116 of Legal Profession Act 1976 - Whether agreement could be referred to for purposes of O. 59 r. 17(3) of Rules of Court 2012 when taxing solicitor's bill of costs - Whether costs incurred with implied or express approval of client - Whether conclusively presumed to have been reasonably incurred
Darryl Goon Siew Chye JC
- For the appellants - Amee Liew & Au Yong; M/s YH Teh & Quek
- For the respondents - Ahmad Ezmeel & Vincent Lim; M/s Dennis Nik & Wong
Prudence requires that the evidence of a child be corroborated before being acted upon. However, if the court finds no reason why the child should not be believed, it may act upon the child's testimony even if there is no corroboration.
W Mohd Safie W Mustaffa v. PP [2019] 10 CLJ 120 [HC]
CRIMINAL LAW: Penal Code - Section 377E - Offence of inciting child to act of gross indecency - Whether elements of charge proved - Whether prosecution successfully established prima facie case
CRIMINAL PROCEDURE: Appeal - Appeal against conviction and sentence - Appeal against decision of Sessions Court - Accused person found guilty and convicted for offence of inciting child to act of gross indecency - Accused person sentenced to five years' imprisonment and eight strokes of whipping - Whether conviction and sentence safe - Penal Code, s. 377E
CRIMINAL PROCEDURE: Charge - Defective - Accused person charged for offence of inciting child to act of gross indecency - Whether sexual misconduct continuing offence - Whether specific date of alleged commission of offence stated in charge - Whether charge defective - Penal Code, s. 377E
EVIDENCE: Witness - Child witness - Accused person charged for offence of inciting child to act of gross indecency - Whether child credible witness - Whether testimony ought to be believed and accepted - Penal Code, s. 377E
Abdul Wahab Mohamed JC
- For the plaintiff - DPP
- For the defandant - M/s Firdaus & Partners
LNS Article(s)
KINGTIME INTERNATIONAL LTD v. PETROFAC E & C SDN BHD - APPLICATION OF THE "DOCTRINE OF EQUIVALENTS" IN MALAYSIAN PATENT INFRINGEMENT CASES* [Read excerpt]
by MELVIN AU JIA CHUN [2019] 1 LNS(A) cxxxivPRO BONO: FOR WHOSE BENEFIT? [Read excerpt]
by KAREN FRYAR AM* [2019] 1 LNS(A) cxxxiii
Principal Acts
| Number | Title | In force from | Repealing |
| ACT 813 | Departure Levy Act 2019 | 1 August 2019 - Part I, Part II, Part IV, section 17, section 18, section 31, Part VII, Part VIII except for section 37, Part IX, Part X and Part XI to the Act; 1 September 2019 - Part III, Part V except for sections 17 and 18, Part VI except for section 31, and section 37 to the Act [PU(B) 373/2019] | - |
| ACT 812 | Finance Act 2018 | The Income Tax Act 1967 [Act 53] see s 3; The Promotion of Investments Act 1986 [Act 327] see s 31; The Stamp Act 1949 [Act 378] see s 63; The Real Property Gains Tax Act 1976 [Act 169] see s 69; The Labuan Business Activity Tax Act 1990 [Act 445] see s 71; The Service Tax Act 2018 [Act 807] see s 83; The Sales Tax Act 2018 [Act 806] see s 91 | - |
| ACT 811 | Suruhanjaya Pengangkutan Awam Darat (Dissolution) Act 2018 | 1 January 2019 [PU(B) 732/2018] | - |
| ACT 810 | Subang Golf Course Corporation Act 1968 (Revised 2018) | 12 November 2018 pursuant to paragraph 6(1)(xxiii) of the Revision of Laws Act 1968 [Act 1]; Revised up to 1 November 2018; First enacted in 1968 as Act of Parliament No 26 of 1968; First Revision - 1993 (Act 509 wef 8 October 1993) | - |
| ACT 809 | Pool Betting Act 1967 (Revised 2018) | 12 November 2018 pursuant to paragraph 6(1)(xxiii) of the Revision of Laws Act 1968 [Act 1]; Revised up to 1 November 2018; First enacted in 1967 as Act of Parliament No 72 of 1967; First Revision - 1989 (Act 384 wef 21 September 1989) | - |
Amending Acts
| Number | Title | In force from | Principal/Amending Act No |
| ACT A1605 | Companies (Amendment) Act 2019 | Not Yet In Force | ACT 777 |
| ACT A1604 | Workers' Minimum Standards of Housing and Amenities (Amendment) Act 2019 | Not Yet In Force | ACT 446 |
| ACT A1603 | Constitution (Amendment) Act 2019 | Not Yet In Force | ACT 000 |
| ACT A1602 | Youth Societies and Youth Development (Amendment) Act 2019 | Not Yet In Force | ACT 668 |
| ACT A1601 | Fisheries (Amendment) Act 2019 | 30 September 2019 [PU(B) 453/2019] | ACT 317 |
PU(A)
| Number | Title | Date of Publication | In force from | Principal/ Amending Act No |
| PU(A) 282/2019 | Strata Titles (Federal Territory of Kuala Lumpur) Rules 2019 | 15 October 2019 | 1 January 2020 - Federal Territory of Kuala Lumpur only | ACT 318 |
| PU(A) 281/2019 | Fees (Marine Parks Malaysia) (Amendment) Order 2019 | 15 October 2019 | 15 October 2019 | PU(A) 4/2017 |
| PU(A) 280/2019 | Price Control and Anti-Profiteering (Determination of Maximum Retail Price for Petrol and Diesel) (No. 36) Order 2019 | 11 October 2019 | 12 October 2019 | ACT 723 |
| PU(A) 278/2019 | Federal Roads (West Malaysia) (Amendment) (No. 5) Order 2009 - Corrigendum | 11 October 2019 | PU(A) 299/2009 | |
| PU(A) 277/2019 | Feed (Compoundable Offences) Regulations 2019 | 10 October 2019 | 11 October 2019 | ACT 698 |
PU(B)
| Number | Title | Date of Publication | In force from | Principal/ Amending Act No |
| PU(B) 517/2019 | Notice of Proposed Revocation of Reservation of Land for Public Purpose for Lot 58139 Mukim Kuala Lumpur | 24 October 2019 | 25 October 2019 | ACT 56/1965 |
| PU(B) 516/2019 | Notice of Proposed Revocation of Reservation of Land for Public Purpose for Lot 35328 Mukim Kuala Lumpur | 24 October 2019 | 25 October 2019 | ACT 56/1965 |
| PU(B) 515/2019 | Notification of Values of Crude Petroleum Oil Under Section 12 | 24 October 2019 | 25 October 2019 to 7 November 2019 | ACT 235 |
| PU(B) 514/2019 | Notification of Values of Palm Kernel Under Section 12 | 23 October 2019 | 1 November 2019 to 30 November 2019 | ACT 235 |
| PU(B) 513/2019 | Notice of Proposed Revocation of Reservation of Land for Public Purpose for Lot 1320 Town Kuala Lumpur | 22 October 2019 | 23 October 2019 | ACT 56/1965 |
Legislation Alert
Updated
| Act/Principal No. | Title | Amended by | In force from | Section amended |
| PU(A) 4/2017 | Fees (Marine Parks Malaysia) Order 2017 | PU(A) 281/2019 | 15 October 2019 | Paragraphs 2 and 3 |
| PU(A) 445/2017 | Customs Duties (Exemption) Order 2017 | PU(A) 275/2019 | 7 October 2019 | Schedule |
| F.M.S CAP. 142 | Malay Reservations Enactment [As Applicable to the Federal Territory of Kuala Lumpur] | PU(A) 273/2019 | 2 October 2019 - Federal Territory of Kuala Lumpur only | Third Schedule |
| F.M.S CAP. 142 | Malay Reservations Enactment [As Applicable to the Federal Territory of Kuala Lumpur] | PU(A) 272/2019 | 2 October 2019 - Federal Territory of Kuala Lumpur only | Second Schedule |
| PU(A) 479/1999 | Consumer Protection (The Tribunal For Consumer Claims) Regulations 1999 | PU(A) 270/2019 | 1 October 2019 | Second Schedule |
Revoked
| Act/Principal No. | Title | Revoked by | In force from |
| PU(A) 127/2015 | Strata Titles (Federal Territory of Kuala Lumpur) Rules 2015 | PU(A) 282/2019 | 1 January 2020 - Federal Territory of Kuala Lumpur only |
| PU(A) 51/2000 | Income Tax (Deduction For Information Technology-Related Expenditure) Rules 2000 | PU(A) 274/2019 | Year of assessment 2018 |
| PU(A) 248/2014 | Customs Duties (Goods Under the Framework Agreement on Comprehensive Economic Co-Operation Between Asean and China) (Asean Harmonised Tariff Nomenclature) Order 2014 | PU(A) 212/2019 | 1 August 2019 |
| PU(B) 11/2016 | Appointment and Revocation of Appointment of Federal Lands Commissioner | PU(B) 332/2019 | 10 July 2019 |
| PU(A) 128/1999 | Income Tax (Allowance For Increased Exports) Rules 1999 | PU(A) 162/2019 | Year of assessment 2016 |