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Issue #51/2019 19 December 2019

New This Week Case(s) of the Week MALAYSIAN MOTOR INSURANCE POOL v. TIRUMENIYAR SINGARA VELOO [2019] 10 CLJ 731 NG CHIN TAI & ANOR v. ANANDA KUMAR KRISHNAN [2019] 10 CLJ 766 PP v. TRAN VAN SAN [2019] 10 CLJ 869 Appeal Updates Appeal Updates Latest Cases Legal Network Series CLJ 2019 Volume 10 (Part 6) Articles LNS Article(s) Legislation Highlights Principal Acts Amending Acts PU(A) PU(B) Legislation Alert

MALAYSIAN MOTOR INSURANCE POOL v. TIRUMENIYAR SINGARA VELOO [2019] 10 CLJ 731
FEDERAL COURT, PUTRAJAYA
AHMAD MAAROP CJ (MALAYA); ZAINUN ALI FCJ; RAMLY ALI FCJ;
AZAHAR MOHAMED FCJ; ALIZATUL KHAIR OSMAN FCJ
[CIVIL APPEAL NO: 02(f)-121-10-2017(W)]
15 OCTOBER 2019

A motor insurance policy so subscribed by an employer may give rise to two separate and enforceable contracts, namely one for the employer as the policy holder and the other for its authorised driver. Consequently, in a claim for personal injury by an employee pursuant to such policy, the employee may not only seek indemnity against the authorised driver, over whom the insurer may not refuse coverage, but can also simultaneously claim for workmen’s compensation from the employer.

INSURANCE: Policy - Liability - Company took up insurance policy from insurer for lorry - Authorised driver of insured lorry reversed into lorry attendant - Lorry attendant suffered injuries - Whether lorry attendant employee of company - Whether lorry attendant fell within exception provided by law - Whether insurer entitled to avoid liability under insurance policy - Whether insurer obligated to pay claim - Whether liability contractual in nature - Whether subject to Road Transport Act 1987 - Whether 'common law liability' applicable - Road Transport Act 1987, s. 91(1)(aa)

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NG CHIN TAI & ANOR v. ANANDA KUMAR KRISHNAN [2019] 10 CLJ 766
FEDERAL COURT, PUTRAJAYA
AHMAD MAAROP PCA; ZAHARAH IBRAHIM CJ (MALAYA); AZIAH ALI FCJ;
ALIZATUL KHAIR OSMAN FCJ; ROHANA YUSUF FCJ
[CIVIL APPEAL NO: 02(f)-97-09-2017(P)]
17 OCTOBER 2019

(1) A contract which does not specify a time limit for its existence but which is determinable upon the occurrence of a certain event is a contract for a definite duration and not a contract in perpetuity; being terminable upon the occurrence of an event, it cannot be terminated by reasonable notice.

(2) In a claim in contract for an agreed sum as distinguished from a claim for damages, it is not necessary for the claimant to prove actual loss. Likewise, the concepts of remoteness and mitigation of losses are inapplicable to such contracts. It follows that where an agent in a commission contract is thereunder entitled to a stated commission sum on the occurrence of an event, his entitlement materialises upon the occurrence of the event. The entitlement remains notwithstanding that the commission sum agreed was referred to as ‘damages’.

CONTRACT: Agreement - Commission contract - Whether duration of contract implicit - Whether contract terminated without reasonable notice - Whether contract could be terminated unilaterally - Claim for damages - Whether claims for agreed sum - Whether plaintiff successfully carried out obligations under contract

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PP v. TRAN VAN SAN [2019] 10 CLJ 869
HIGH COURT MALAYA, TAIPING
MOHD RADZI HARUN JC
[CRIMINAL REVISION NO: AB-43-2-04-2019]
17 SEPTEMBER 2019

Where the law mandatorily prescribes a fine and imprisonment sentence, it is wrong for the court to impose a fine only or an imprisonment only sentence. It follows that where the Sessions Court judge imposes only an imprisonment sentence for an offence under s. 68(2) (c) of the Wildlife Conservation Act 2010, and not an imprisonment and fine sentence as mandated under the section, then the sentence cannot be sustained at law and ought to be disturbed by the High Court whether on revision or appeal.

CRIMINAL PROCEDURE: Revision - Application for - Request for review of order of sentences against accused - Accused found guilty of charges under s. 68(2)(c) of Wildlife Conservation Act 2010 - Mandatory provisions for both sentence of fine and imprisonment under s. 68(2)(c) - Sessions Court Judge only meted out imprisonment sentences - Whether Sessions Court Judge erred in not imposing fines - Whether court empowered to alter nature of sentences - Whether court ought to exercise revisionary powers - Criminal Procedure Code, s. 323 - Courts of Judicature Act 1964, ss. 31, 35, 36 and 37

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1. Murshid Meam Ghouse Meam & Ors v. Genneva Malaysia Sdn Bhd [2018] 1 LNS 1524 (CA) affirming the High Court case of Murshid Meam Ghouse Meam & Ors v. Genneva Malaysia Sdn Bhd & Anor [Civil Suit No: 22NCVC-327-06/2014]

2. Yon Heng Farm Sdn Bhd & Ors v. Ai Hwa Poultry Farm Sdn Bhd [2018] 1 LNS 1454 (CA) affirming the High Court case of Ai Hwa Poultry Farm Sdn Bhd v. Yon Heng Farm Sdn Bhd & Ors [2018] 1 LNS 393

Legal Network Series

[2017] 1 LNS 1731	PP lwn. MOHD ASMAWI MD DESA & SATU LAGI UNDANG-UNDANG JENAYAH: Dadah berbahaya - Pengedaran - Pemilikan - Dadah dijumpai di dalam pondok di mana tertuduh ditangkap - Dadah disimpan di dalam beg dalam keadaan terbuka di hadapan tertuduh - Tertuduh cuba melarikan diri ketika serbuan - Sama ada tertuduh mempunyai kawalan dan jagaan serta pengetahuan berkenaan dadah - Sama ada tindakan tertuduh yang terkejut dan cuba melarikan diri dan melawan tangkapan menunjukkan tertuduh mempunyai pengetahuan ke atas dadah - Sama ada kesemua elemen yang diperlukan bagi membentuk milikan telah berjaya dibuktikan oleh pihak pendakwaan PROSEDUR JENAYAH: Pembelaan - Penafian - Pengedaran dadah berbahaya - Dadah dijumpai di dalam pondok - Tertuduh mendakwa sering tidur di pondok - Tertuduh mendakwa kenalannya telah hadir di pondok - Tertuduh mendakwa mereka ditangkap ketika tidur - Sama ada kemungkinan pondok boleh diakses oleh orang lain adalah relevan - Sama ada terdapat sebab untuk pihak polis mengenakan tertuduh - Sama ada tertuduh telah mematahkan anggapan pengedaran dadah Bagi pihak pendakwaan - Mohd Adzrul Faidz Abdul Razak, Timbalan Pendakwa Raya Bagi pihak OKT1 (peguam lantikan Mahkamah) - Sudesh Singh Salinder Singh; T/n Sudesh Narinder & Partners Bagi pihak OKT2 (peguam lantikan Mahkamah) - Khairil Azwar Khalil; T/n KK Lee & Co
[2017] 1 LNS 2135	MUHAMAD SAMRI HASHIM lwn. PP PROSEDUR JENAYAH: Perlucuthakan - Dadah berbahaya - Perlucutan harta-harta yang disita di bawah Akta Dadah Berbahaya (Perlucutan Harta) 1988 - Sama ada harta yang disita dengan cara menyalahi undang-undang - Sama ada harta yang disita merupakan kepunyaan tertuduh - Sama ada tertuduh telah membuktikan bahawa dia berhak ke atas harta-harta di sisi undang-undang Burhanudeen Abdul Wahid; T/n Burhan k & Company Norshuhada Mohd Yatim, Timbalan Pendakwa Raya; Pejabat Penasihat Undang-Undang
[2018] 1 LNS 374	THONG KING CHAI v. HO KHAR FUN TORT: Defamation - Libel - Action by general manager of joint management body ('JMB') against an owner as a result of publication of statements in email and Facebook posting - Owner seeking clarification on validity of appointment of general manager - Appointment not recorded in minutes of meeting - JMB failed to disclose minutes of meeting and statements of finance - Whether impugned words were published to a third party - Whether plaintiff's reputation was capable of being lowered in eyes of ordinary reasonable man - Whether statements were capable of bearing a defamatory meaning - Whether statements were made against plaintiff personally TORT: Defamation - Defence - Justification - Owner seeking clarification on validity of appointment of general manager which was not recorded in minutes of meeting - Whether alleged defamatory imputations were true in substance and in fact - Whether defendant could rely on defence of justification TORT: Defamation - Defence - Fair comment - Owner seeking clarification on validity of appointment of general manager following joint management body's failure to disclose minutes of meeting and statements of finance - Whether defendant complied with O. 78 r. 3(2) of Rules of Court 2012 which requires defendant to provide particulars of words which are alleged to be comments and facts on which comments were based - Whether there was non-compliance of Building And Common Property (Maintenance And Management) Act 2017 by joint management body - Whether comment was a matter of public interest - Whether impugned statements were published with express malice For the plaintiff - Anita Ferns & Caroline Daniel; M/s The Law Office Of Anita Ferns For the defendant - Kevin Sathiaseelan @ Joshua Kevin, Azura Adnan & Savreena Kaur Randhir Singh; M/s Kevin & Co
[2018] 1 LNS 430	MARIANA OMAR & ANOR v. TRUCK OKAMURA SDN BHD LANDLORD AND TENANT: Lease - Lease agreement - Breach - Default in payments of rental for several months - Claim for delivery of vacant possession - Whether tenant made genuine attempts to settle outstanding sums due to landowner - Whether tenant was in breach of lease agreement - Whether there was any reasonable explanation for default despite being given sufficient extension of time to make payment - Whether landlord had acquiesced to default by granting extension of time to settle sums due For the plaintiffs - Farah Mohd Afzal; M/s Abraham Ooi & Partners For the defendant - Shanmuganathan; M/s S P Crais & Associates
[2018] 1 LNS 432	LIM CHE EN v. SAW CHAI SOON & ANOTHER CASE CIVIL PROCEDURE: Judgments and orders - Enforcement - Consequential and necessary orders - Judgment or order requiring act to be done - Defendants reluctant facilitate and enable enforcement of terms of judgment - Defendants refused to respond to independent auditor's request for additional documents - Whether application was a fresh action to re-litigate issues decided in original action - Whether application necessary to properly and effectively implement terms of judgment - Whether application was for consequential and necessary orders - Rules of Court 2012, O. 45 r. 6 For the plaintiff - Zarina Begum; M/s Lim Soh Wan & Zarina For the defendant - KY Wong; M/s Farid Wong & Wee

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CLJ 2019 Volume 10 (Part 6)

A motor insurance policy so subscribed by an employer may give rise to two separate and enforceable contracts, namely one for the employer as the policy holder and the other for its authorised driver. Consequently, in a claim for personal injury by an employee pursuant to such policy, the employee may not only seek indemnity against the authorised driver, over whom the insurer may not refuse coverage, but can also simultaneously claim for workmen’s compensation from the employer.
Malaysian Motor Insurance Pool v. Tirumeniyar Singara Veloo [2019] 10 CLJ 731 [FC]

• SUBJECT
• CORAM
• COUNSEL

(1) A contract which does not specify a time limit for its existence but which is determinable upon the occurrence of a certain event is a contract for a definite duration and not a contract in perpetuity; being terminable upon the occurrence of an event, it cannot be terminated by reasonable notice.
(2) In a claim in contract for an agreed sum as distinguished from a claim for damages, it is not necessary for the claimant to prove actual loss. Likewise, the concepts of remoteness and mitigation of losses are inapplicable to such contracts. It follows that where an agent in a commission contract is thereunder entitled to a stated commission sum on the occurrence of an event, his entitlement materialises upon the occurrence of the event. The entitlement remains notwithstanding that the commission sum agreed was referred to as ‘damages’.
Ng Chin Tai & Anor v. Ananda Kumar Krishnan [2019] 10 CLJ 766 [FC]

• SUBJECT
• CORAM
• COUNSEL

Consecutive contracts of employment executed by an employee with employers who are separate legal entities cannot be treated as one continuous contract, notwithstanding the use of the word ‘renewal’ in the latter contracts and notwithstanding that identical terms are used in the respective contracts; all the more so when each of the contracts stipulates fixed terms employment which expires by effluxion of time.
AIMS Cyberjaya Sdn Bhd v. Ahmad Zahri Mirza Abdul Hamid [2019] 10 CLJ 787 [CA]

• SUBJECT
• CORAM
• COUNSEL

In a dispute concerning the value of construction works carried out, it is imperative to distinguish between lump sum contract and a re-measurement contract. In a lump sum contract, the contractor carries out the specified defined works with approved construction drawings for a fixed sum. In a re-measurement contract, there will be bill of quantities that is estimated and not final. The distinctive features of these two contracts will determine the actual value of the works done.
Green Prospect Sdn Bhd v. King Ong Development Sdn Bhd [2019] 10 CLJ 799 [CA]

• SUBJECT
• CORAM
• COUNSEL

A declaratory order is not available to an individual who has committed a wrong and thereafter sought to regularise such wrong, or one who has taken a step to assert his rights. Thus, where the cause of action is clearly related to a breach of contract, an application for a declaration is inappropriate.
KNK Development Sdn Bhd & Ors v. Sumbangan Aneka Sdn Bhd [2019] 10 CLJ 822 [CA]

• SUBJECT
• CORAM
• COUNSEL

In determining the necessity of referring children of the marriage to a psychiatrist for assessment based on a lack of access, a claim of parental alienation will not suffice without a full examination of underlying issues; and where the children are of sufficient maturity, their independent opinion pertaining to the order of access is to be considered.
Hoong Wai Kit v. Teh Toong Joo [2019] 10 CLJ 835 [HC]

• SUBJECT
• CORAM
• COUNSEL

The record of appeal should contain the memorandum of appeal notwithstanding the unavailability of the grounds of judgment. Order 55 rule 4(d) of the ROC clearly provides that the memorandum of appeal has to be included in the record and the same can be amended once the grounds of judgment is available.
MyDepot Sdn Bhd v. Clarity Excel Sdn Bhd [2019] 10 CLJ 846 [HC]

• SUBJECT
• CORAM
• COUNSEL

Apabila seorang tertuduh gagal manghadirkan diri ke mahkamah dan mengemukakan sijil sakit, maka mahkamah harus menimbang keesahan sijil tersebut dan jika perlu boleh mengeluarkan waran tangkap. Mahkamah tidak boleh terus menggunapakai s. 425A Kanun Tatacara Jenayah bagi mensabit dan menjatuhkan hukuman atas anggapan bahawa tertuduh memilih untuk berdiam diri atau tiada pembelaan, kecuali jika wujud keterangan bahawa pemohon telah melarikan diri atau sengaja enggan hadir atau telah mengenepikan haknya untuk hadir.
Ong Keh Keong lwn. PP [2019] 10 CLJ 853 [HC]

• SUBJECT
• CORAM
• COUNSEL

Where the law mandatorily prescribes a fine and imprisonment sentence, it is wrong for the court to impose a fine only or an imprisonment only sentence. It follows that where the Sessions Court judge imposes only an imprisonment sentence for an offence under s. 68(2) (c) of the Wildlife Conservation Act 2010, and not an imprisonment and fine sentence as mandated under the section, then the sentence cannot be sustained at law and ought to be disturbed by the High Court whether on revision or appeal.
PP v. Tran Van San [2019] 10 CLJ 869 [HC]

• SUBJECT
• CORAM
• COUNSEL

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LNS Article(s)

1. RENEWABLE ENERGY: THE RISING SUN ^{[Read excerpt]}
   by ANITA NATALIA* [2019] 1 LNS(A) cxlv

[2019] 1 LNS(A) cxlv



MALAYSIA

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RENEWABLE ENERGY: THE RISING SUN

by
ANITA NATALIA*

Anita Natalia discusses the framework for renewable energy in Malaysia, with a specific focus on solar energy.

Malaysia introduced renewable energy as the fifth fuel, in addition to oil, gas, coal and hydro, in the energy supply mix under the “Five-Fuel Diversification Policy” as part of the 8 th Malaysia Plan. It was the first time that renewable energy has been earmarked to be a major contributor to electricity generation in our country.

One of the aims of the “Five-Fuel Diversification Policy” was to generate 5% of the country’s electricity from renewable resources by 2005. However, only 3% of the target was achieved at the end of that period. While the Government continued with the “Five-Fuel Diversification Policy” under the 9 th Malaysia Plan, the ideal electricity generation mix remained unmet. Thus the National Renewable Energy Policy and Action Plan (“NREP”) was launched in 2010 as part of the 10th Malaysia Plan to overcome the main barriers to renewable energy deployment in Malaysia and to provide a secure and sustainable national electricity supply.

. . .

*© Skrine. This article was first published in Issue 2/2019 of Legal Insights, a Skrine Newsletter. Reproduced with permission of Skrine.

**Anita is a Senior Associate in the Litigation and Arbitration Practice of SKRINE. Her portfolio includes commercial and corporate disputes and domestic and international arbitrations.

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2. CORPORATE SOCIAL RESPONSIBILITY: ISSUES AND CHALLENGES UNDER THE INDIAN LAW ^{[Read excerpt]}
   by VIBHUTI DHAWAN* [2019] 1 LNS(A) cxliv

[2019] 1 LNS(A) cxliv



INDIA

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CORPORATE SOCIAL RESPONSIBILITY: ISSUES AND CHALLENGES UNDER THE INDIAN LAW

by
VIBHUTI DHAWAN*

The role of a corporation in the present day modern society is extremely different from what it was in the previous century. "The modern company should function not simply as an economic machine designed to churn out profit for its shareholders, but rather as an institution which owes social responsibilities to a wide circle of interests".^[1] The Supreme Court of India in a plethora of its judgments has upheld the same principle recognizing the social character of corporations. In light of this social character principle, the Government of India by a notification^[2] dated 27.2.2014 introduced the concept of "Corporate Social Responsibility" hereinafter referred as CSR, by virtue of Section 135 under the new Companies Act, 2013. Under Section 135,^[3] CSR has been made mandatory for all companies - government or private or otherwise, provided they meet any one or more of the following fiscal criterions:

. . .

* Final year law student at Campus Law Centre, Faculty of Law, University of Delhi. This paper was written under the supervision of Dr. Arti Aneja, Assistant Professor at Campus Law Centre.

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