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Issue #49/2019 05 December 2019

New This Week Case(s) of the Week TR SANDAH TABAU & ORS v. DIRECTOR OF FOREST, SARAWAK & ANOR AND OTHER APPLICATIONS [2019] 10 CLJ 436 Appeal Updates Appeal Updates Latest Cases Legal Network Series CLJ 2019 Volume 10 (Part 4) Articles LNS Article(s) Legislation Highlights Principal Acts Amending Acts PU(A) PU(B) Legislation Alert

TR SANDAH TABAU & ORS v.
DIRECTOR OF FOREST, SARAWAK & ANOR AND OTHER APPLICATIONS [2019] 10 CLJ 436
FEDERAL COURT, PUTRAJAYA
AZAHAR MOHAMED CJ (MALAYA); DAVID WONG DAK WAH CJ (SABAH AND SARAWAK); ALIZATUL KHAIR OSMAN FCJ; MOHD ZAWAWI SALLEH FCJ; IDRUS HARUN FCJ
[CIVIL APPLICATIONS NO: 01-27-04-2015(Q), 08(RS)-3-03-2019(Q) & 08(RS)-4-03-2019(Q)]
11 SEPTEMBER 2019

1. The customs of ‘pemakai menoa’ and ‘pulau galau’ as practiced by the natives of Sarawak did not come within the definition of ‘law’ in art. 160(2) of the Federal Constitution and did not, therefore, have the force of law in Sarawak.

2.  The inherent jurisdiction and powers of the Federal Court to review its own decision under r. 137 Rules of the Federal Court 1995 must be sparingly exercised. The court cannot invoke the power to review on merits and before the power could be exercised it must be shown that there was injustice on the face of the record. Accordingly, arguments such as the earlier panel had arrived at a wrong result, or misinterpreted another decision of the Federal Court, or misinterpreted the statutes or case law, or went against the weight of legal authorities, or wrongly disturbed findings of facts by the courts below cannot form a valid and legitimate basis to seek a review under the rule.  

3. The recommendation under para. 26(4) of the Inter-Governmental Committee Report 1962 read with art. VIII of the Malaysia Agreement 1963 that the Federal Court hearing an appeal from a case originating from Borneo States should comprise of at least one judge with ‘Bornean judicial experience’ cannot be enforced because the same has never been implemented by legislative, executive or other action of the Governments of the Federation of Malaysia, Sabah or Sarawak, and also not incorporated in the Constitution of Malaysia. It is also clear on reading s. 74 of the Courts of Judicature Act 1964 together with art. 122 of the Federal Constitution, that there is no legal requirement that the Federal Court, when hearing or disposing of such cases, must consist of at least one judge with Bornean judicial experience.

CONSTITUTIONAL LAW: Federal Court - Inherent powers - Review - Power to review own decision - Principles - Whether exercisable in very limited circumstances - Whether to prevent injustice - Whether must be of fundamental importance to certainty of administration of law - Finality of proceedings - Rules of the Federal Court 1995, r. 137

CONSTITUTIONAL LAW: Federal Court - Inherent powers - Review - Power to review own decision - Question of law whether Iban customs of 'pemakai menoa' and 'pulau' had the force of law - Decision of earlier panel - Whether equally divided and not a majority judgment - Whether suffering from coram failure - Whether appeals to be reheard - Keruntum Sdn Bhd v. The Director of Forests & Ors - Whether still good law - Rules of the Federal Court 1995, r. 137 - Federal Constitution, arts. 128, 160 - Courts of Judicature Act 1964, ss. 4, 74, 77, 78

CONSTITUTIONAL LAW: Federal Court - Review - Power to review own decision - Question of law whether Iban customs of 'pemakai menoa' and 'pulau' had the force of law - Constitution of panel - Whether there was requirement in law to have presence of 'judge with Bornean judicial experience' - Inter-Governmental Committee Report 1962 and Malaysia Agreement 1963 - Whether enforceable - Whether Judiciary obligated to implement provisions and recommendations thereof - Rules of the Federal Court 1995, r. 137 - Federal Constitution, art. 128 - Courts of Judicature Act 1964, ss. 4, 74, 77 - Inter-Governmental Committee Report 1962, para. 26(4) - Malaysia Agreement 1963, art. VIII

LAND LAW: Customary land - Native customary rights - Iban customs of 'pemakai menoa' and 'pulau' - Whether legally recognised customs in Sarawak - Whether having the force of law - Federal Constitution, art. 160(2)

WORDS & PHRASES: 'judge with Bornean judicial experience' - Inter-Governmental Committee Report 1962, para. 26(4) - Meaning - Whether to mean judge with experience of serving as High Court Judge or Judicial Commissioner in Sabah or Sarawak 

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1. Sritharan Naidu Sundara Rajoo v. Dato’ Gengatharan @ Jeganathan Venkatesan & Anor [2019] 1 LNS 535 (CA) affirming the High Court case of Dato’ Gengatharan @ Jeganathan Venkatesan & Anor v. Sritharan Naidu Sundara Rajoo [Civil No: AA-22NCVC-60-04/2016]

2. Siti Haida Ismail v. Siti Maznah Yahya & Ors [2018] 1 LNS 1081 (MR) mengesahkan kes Mahkamah Tinggi Siti Maznah Yahya & Ors v. Siti Haida Ismail [Guaman Sivil No PA-22NCVC-90-05/2016]

Legal Network Series

[2018] 1 LNS 309	AMTRUSTEE BERHAD & ORS v. ALDWICH BERHAD & ORS CIVIL PROCEDURE: Judgments and orders - Review - Power of court to review its order prior to perfection - Quantum of claim - Whether power limited to consequential matters only - Whether merits of quantum of claim ought to be considered - Whether quantum of claim still open for argument CIVIL LAW ACT: Interest - Power of courts to award interest on debts and damages - Interest upon interest - Whether giving of interest upon interest is prohibited by s. 11 of Civil Law Act For the plaintiffs - Tommy Thomas, Alan Gomez, Michelle Kummar & Michael Yap; M/s Tommy Thomas For the 1st, 2nd & 3rd defendants - Manokaran, MR Kumar & N Yohendra; M/s Kumar Associates For the 4th & 5th defendants - Robert Lazar, Lai Wai Fong, TT Toi & Aarti Jeyarajah; M/s Shearn Delamore & Co For the 6th defendant - Kelvin Seet & Vendee Chai; M/s Cheang & Ariff
[2018] 1 LNS 315	KELIBAT MEGAH (M) SDN BHD v. SMART RELIANCE SDN BHD CONTRACT: Agreement - Existence - Subcontract - Absence of signed agreement - Existence of payment made by main contractor - Whether there was oral agreement between parties - Whether there was concluded contract despite absence of signed agreement CONTRACT: Building contract - Subcontract - Termination - Validity of termination - Termination by main contractor by way of a short message service - Reasons for termination and alleged breach was not made known - Whether terms of contract between employer and main contractor would apply to sub contract - Whether termination was bad in law in absence of notice and reasons for termination - Whether termination was null and void - Whether subcontract wrongfully terminated CONTRACT: Building contract - Subcontract - Claim for cost of rectification work by main contractor - Delay - Allegation that subcontractor refused to complete work - Whether subcontractor was given notice to rectify - Whether photos tendered are proof of defective work - Whether there was defective work - Whether there was proof of rectification work by main contractor For the plaintiff - Ahmad Fakhri Abu Samah & Muhammad Azwar Ab Manab; M/s Azwar & Partners For the defendant - Muhammad Hafizul Feisal & Muhammad Sofian Jamaludin; M/s A Azidin & Shahrul
[2018] 1 LNS 316	WONG CHEE KEONG v. KYK DEVELOPMENT SDN BHD CONTRACT: Building contract - Claim for professional services - Architect fees - Claim for abortive work - Invoices billed after termination - Drawings were not dated and lacked dimensions - Drawings were revised numerous times - Whether credible evidence produced to show nature and number of times changes were made - Whether bona fide of invoices were questionable - Whether changes were intended to be gratuitous - Whether claim was based on s. 71 of Contracts Act 1950 and/or quantum meruit For the plaintiff - Liang Chong Beng & Nga Mei Yen; M/s Nga Hock Cheh & Co For the defendant - BE Teh; M/s Teh & Associates
[2018] 1 LNS 839	ROZIYANA ROSLAN & SATU LAGI lwn. MOHD ZAKI GHAZALI PROSEDUR SIVIL: Rayuan - Pembatalan - Isu tanggungan - Doktrin res judicata - Kewujudan dua tindakan mahkamah yang dibawa oleh pihak-pihak secara berasingan berkenaan kemalangan yang sama - Isu liabiliti telah diputuskan 50%-50% - Defendan telah menerima bayaran jumlah penghakiman dalam tuntutannya - Defendan tidak mempertikaikan liabiliti yang diputuskan dalam tuntutannya - Sama ada defendan boleh mengambil pendirian yang berbeza dengan memfailkan rayuan atas isu liabiliti dalam tindakan plaintif - Sama ada keputusan hakim bicara berkaitan liabiliti menjadi muktamad Bagi pihak perayu-perayu/defendan-defendan - Baljeet Kaur Harbhajan Singh; T/n VT Singam, D Gunasegran & Co Bagi pihak responden/plaintif - Parameswaran Subramaniam; T/n S Param & G Thila
[2018] 1 LNS 840	PER: YONG LI HONG & SATU LAGI PROSEDUR SIVIL: Pihak-pihak - Pencelah - Bakal pencelah memohon mencelah berdasarkan kepentingannya sebagai pemegang amanah kepada semua polisi insuran si mati - Sama ada bakal pencelah mempunyai apa-apa kepentingan undang-undang sebaik surat kuasa mentadbir dikeluarkan untuk mentadbir harta-harta si mati - Sama ada bakal pencelah telah mematuhi peruntukan A. 15 k. 6 (2) & (3) Kaedah-Kaedah Mahkamah 2012 Bagi pihak plaintif - KH Lee & Lau Pei Nie; T/n Pei Nie Lau & Company Bagi pihak bakal pencelah - KS Gan; T/n KS Gan & Co

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CLJ 2019 Volume 10 (Part 4)

A claim pursuant to a breach of an undertaking to transfer land under a Share Sales Agreement is by its nature based on contract and not a claim for recovery of land; as such, it is subject to a six year limitation period.
Toh Puan D Heryati Abdul Rahim v. Lau Ban Tin & Anor [2019] 10 CLJ 421 [FC]

• SUBJECT
• CORAM
• COUNSEL

1. The customs of ‘pemakai menoa’ and ‘pulau galau’ as practiced by the natives of Sarawak did not come within the definition of ‘law’ in art. 160(2) of the Federal Constitution and did not, therefore, have the force of law in Sarawak.

2.  The inherent jurisdiction and powers of the Federal Court to review its own decision under r. 137 Rules of the Federal Court 1995 must be sparingly exercised. The court cannot invoke the power to review on merits and before the power could be exercised it must be shown that there was injustice on the face of the record. Accordingly, arguments such as the earlier panel had arrived at a wrong result, or misinterpreted another decision of the Federal Court, or misinterpreted the statutes or case law, or went against the weight of legal authorities, or wrongly disturbed findings of facts by the courts below cannot form a valid and legitimate basis to seek a review under the rule.  

3. The recommendation under para. 26(4) of the Inter-Governmental Committee Report 1962 read with art. VIII of the Malaysia Agreement 1963 that the Federal Court hearing an appeal from a case originating from Borneo States should comprise of at least one judge with ‘Bornean judicial experience’ cannot be enforced because the same has never been implemented by legislative, executive or other action of the Governments of the Federation of Malaysia, Sabah or Sarawak, and also not incorporated in the Constitution of Malaysia. It is also clear on reading s. 74 of the Courts of Judicature Act 1964 together with art. 122 of the Federal Constitution, that there is no legal requirement that the Federal Court, when hearing or disposing of such cases, must consist of at least one judge with Bornean judicial experience.
TR Sandah Tabau & Ors v. Director Of Forest, Sarawak & Anor And Other Applications [2019] 10 CLJ 436 [FC]

• SUBJECT
• CORAM
• COUNSEL

The threshold test for pre-action discovery that relates to both the proposed cause of action as well as relief is higher compared to the test for discovery per se. The power to allow such application must also be exercised in genuine cases and not where the intent was to annoy or for a fishing expedition. 
Bandar Utama Development Sdn Bhd & Anor v. Bandar Utama 1 JMB [2019] 10 CLJ 516 [CA]

• SUBJECT
• CORAM
• COUNSEL

In the case of drug trafficking, a trial judge’s indiscriminate reliance on both actual and presumed trafficking is prejudicial to the accused as he is left in doubt as to the burden of proof imposed on him, ie. whether to raise a reasonable doubt or to rebut the statutory presumption on a balance of probabilities; it follows that a conviction and sentence based on such reliance is liable to be set aside.
Helmi Hafifi Abd Halim v. PP [2019] 10 CLJ 534 [CA]

• SUBJECT
• CORAM
• COUNSEL

The statutory duty levied on the Joint Management Body to impose rates on parcel owners under the Strata Management Act 2013 or the Strata Title Act 1985 is not delegable, not even to the Joint Management Committee. The Joint Management Body, further, has no power to fix different rates for different types of parcels where the development is one of a mixed condominium development. 
Muhamad Nazri Muhamad v. JMB Menara Rajawali & Anor [2019] 10 CLJ 547 [CA]

• SUBJECT
• CORAM
• COUNSEL

It was in order for the Director of Lands and Surveys Department, Sabah to cancel a company’s application for state land under s. 9 of the Land Ordinance (Sabah) (Cap 68) and forfeit the premium paid as the latter failed to comply with the terms and conditions of a letter of offer although 13 years had passed since it was issued. 
Gula Sabah Sdn Bhd v. Director Of Lands And Surveys Department, Sabah [2019] 10 CLJ 565 [HC]

• SUBJECT
• CORAM
• COUNSEL

In a divorce petition, the court will evaluate the relevant circumstances including the respondent’s conduct to determine whether the marriage has irretrievably broken down to the point that it would be futile for the marriage to continue. In granting an order for maintenance, the fact that the petitioner is working is not a factor to deprive the petitioner of maintenance. 
Shantini Pillay Narayanasamy Pillay v. Kanna Dasan Narianasamy [2019] 10 CLJ 576 [HC]

• SUBJECT
• CORAM
• COUNSEL

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LNS Article(s)

1. ORWELLIAN REALITIES OF PRIVACY IN THE DIGITAL ERA IN MALAYSIA ^{[Read excerpt]}
   by GITA RADHAKRISHNA* [2019] 1 LNS(A) cxxxix

[2019] 1 LNS(A) cxxxix



MALAYSIA

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ORWELLIAN REALITIES OF PRIVACY IN THE DIGITAL ERA IN MALAYSIA

by
GITA RADHAKRISHNA*

Introduction

The recent news report that 'Putrajaya ends contract with firm over one of country's largest data leak'^[1] came as no surprise to most Malaysians who are used to getting irritating marketing and scam calls from unknown sources. The contractor, Nuemera (M) Sdn Bhd. is now under criminal investigation. Prior to that was the report of the leak of medical records of some 20,000 Malaysians.^[2] In a study of privacy and surveillance of 47 countries, Comparitech reported that Malaysia ranked as the fifth-worst country in terms of protecting the personal data of its citizens.^[3] In the circumstances, what are our legal rights to privacy and protection of our personal data? Today with increasing technology, vast volumes of personally identifiable information (PII) pertaining to individuals and organisations with potential value to both businesses and governments, can be collected through the Internet.^[4] Enabling technologies provide facial recognition, iris scanners, interlinked databases, behaviour prediction software, to track our movements, predict our thoughts and behaviour be it our spending patterns, political inclinations or criminal preponderance.^[5] In 2013 Edward Snowdon, disclosed the extent of global surveillance and PII that is being collected and stored by the USA and other jurisdictions.^[6]

. . .

* Faculty of Law, Multimedia University Email: gita@mmu.edu.my

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2. EQUITY CROWDFUNDING RETAIL INVESTOR PROTECTION IN THE UK: A COMPARATIVE STUDY WITH MALAYSIAN LAW AND PRACTICE ^{[Read excerpt]}
   by SUA SHIANG-NIAN* [2019] 1 LNS(A) cxl

[2019] 1 LNS(A) cxl



MALAYSIA

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EQUITY CROWDFUNDING RETAIL INVESTOR PROTECTION IN THE UK:
A COMPARATIVE STUDY WITH MALAYSIAN LAW AND PRACTICE

by
SUA SHIANG-NIAN*

(PRACTITIONER ARTICLE)

A. INTRODUCTION

About Crowdfunding

As the name suggests, crowdfunding involves raising capital from a large number of individuals, each of whom typically contributes a small sum. The use of crowdfunding has grown exponentially.^[1] This is due to the less stringent requirements, relative to traditional means of finance, when materialising the same;^[2] and the appeal of the internet's capacity to reduce cost by facilitating the dissemination of information about such projects to the public.^[3] Although the availability of crowdfunding is good news for start-up companies, close scrutiny of its merits are justifiable.

Equity Crowdfunding, Risks and Investor Protection

Equity Crowdfunding (‘ECF’) is a special form of crowdfunding that involves offering of securities issued by the fundraiser to the crowd investor, and is thus generally subject to traditional securities laws and other regulatory restrictions.^[4]

. . .

* LL.B (Hons) (University of Manchester), LL.M, LPC (BPP University Law School).

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