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Issue #11/2020 05 March 2020

New This Week Case(s) of the Week N GANESAN N NARAYANAN v. WAYTHA MOORTHY PONNUSAMY [2020] 3 CLJ 1 SYED MOHAMED NUR ALI v. WEDDRIN MOJINGKIN & ORS [2020] 3 CLJ 133 JUDICIAL QUOTES  Latest Cases Legal Network Series CLJ 2020 Volume 3 (Part 1) Articles LNS Article(s) Legislation Highlights Principal Acts Amending Acts PU(A) PU(B) Legislation Alert

N GANESAN N NARAYANAN v. WAYTHA MOORTHY PONNUSAMY [2020] 3 CLJ 1
COURT OF APPEAL, PUTRAJAYA
HAMID SULTAN ABU BACKER JCA; HANIPAH FARIKULLAH JCA; KAMALUDIN MD SAID JCA
[CIVIL APPEAL NO: N-02(NCVC)(W)-1540-07-2018]
14 JANUARY 2020

TORT: Defamation - Libel - Allegation that article published in newspaper contained defamatory statements against complainant - Whether first defendant responsible for writing, printing, dissemination and publication of article - Whether complainant adduced evidence as to how, where and when first defendant caused publication of impugned article - Whether complainant case mere conjecture - Whether complainant discharged initial burden of proof in proving pleaded case - Failure to call material witness to prove link between first defendant and newspaper - Whether fatal to complainant's case - Whether complainant's case vis-a-vis first defendant proved 

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SYED MOHAMED NUR ALI v. WEDDRIN MOJINGKIN & ORS [2020] 3 CLJ 133
HIGH COURT MALAYA, JOHOR BAHRU
SEE MEE CHUN J
[CIVIL SUIT NO: JA-22NCVC-226-11-2017]
20 JANUARY 2020

CIVIL LAW ACT: Damages - Dependency claim - Deceased died whilst in police custody - Claim by parents - Whether death caused by beating inflicted by police arresting team - Extensive 61 injuries - Whether consistent with being involved in commotion with more than one person - Whether post mortem report described injuries sustained when under custody - Whether there was failure to provide reasonable and necessary medical attention - Whether claimants entitled to damages - Civil Law Act 1956, ss. 7 & 8

TORT: Negligence - Duty of care - Breach of duty - Death whilst in police custody - Whether death caused by beating inflicted by police arresting team - Extensive 61 injuries - Whether consistent with being involved in commotion with more than one person - Whether post mortem report described injuries sustained when under custody - Whether police owed duty of care to ensure deceased not harmed and proper medical care given whilst in custody - Whether there was failure to provide reasonable and necessary medical attention - Whether duty of care breached 

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“The sole question in respect of which the leave to appeal was given, brings into focus the effect of the provisions of s. 6 of the Kedah Malay Reservations Enactment. This necessarily involves the exercise of the function of a court in construing a statute.”

“In our view, under s. 6, it is clear that sale at the instance of a chargee is prohibited, but there is nothing thereunder which prohibits the creation of a charge of a Malay reservation land owned by a Malay to a non-Malay. In other words, under the Kedah Malay Reservations Enactment, there is no express prohibition against the creation of a charge over Malay reserve land in favour of non-Malays. That, in our view, is deliberate. If the Legislature had intended to prohibit the creation of such a charge, it would have expressly provided so.” — per Ahmad Maarop PCA in Affin Bank Bhd v. Jamaludin Jaafar; The Association of Banks in Malaysia & Anor (Interveners) [2019] 7 CLJ 541

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Legal Network Series

[2018] 1 LNS 2100	SUHAIRIZA ZALI lwn. ROSLI AHMAD & YANG LAIN Pengeluaran surat amaran secara pentadbiran oleh pengarah jabatan pendidikan adalah suatu tindakan dalaman yang tidak bersifat tindakan tatatertib di bawah Peraturan-Peraturan Pegawai Awam (Kelakuan dan Tatatertib) 1993. Surat amaran secara pentadbiran bukan merupakan suatu keputusan di bawah peruntukan A. 53 k. 2(4) Kaedah-Kaedah Mahkamah 2012. UNDANG-UNDANG PENTADBIRAN: Semakan kehakiman - Permohonan kebenaran - Semakan kehakiman terhadap pengeluaran surat amaran pentadbiran - Sama ada surat amaran pentadbiran bersifat tindakan tatatertib di bawah Peraturan-Peraturan Pegawai Awam (Kelakuan dan Tatatertib) 1993 - Sama ada surat amaran pentadbiran yang dikeluarkan oleh pengarah jabatan pendidikan merupakan suatu keputusan di bawah peruntukan A. 53 k. 2(4) Kaedah-Kaedah Mahkamah 2012 - Sama ada kebenaran wajar diberikan Bagi pihak pemohon - Alia Syahida; T/n Ibrahim & Fuaadah Bagi pihak responden-responden - SFC Natra Idris, Peguam Kanan Persekutuan; Jabatan Peguam Negara
[2018] 1 LNS 2103	DALJIT KAUR GRIMALE SINGH lwn. MAJLIS PEGUAM MALAYSIA Kaveat yang difailkan oleh Majlis Peguam dibawah s. 17 Akta Profesion Undang-Undang 1976 atas asas kesihatan pempetisyen wajar diketepikan setelah pempetisyen telah beransur pulih. Petisyen penerimaan masuk pempetisyen wajar dibenarkan setelah segala syarat-syarat di bawah s. 11 dan 12 dipenuhi. PROFESYEN GUAMAN: Penerimaan masuk - Petisyen penerimaan masuk - Bantahan oleh Majlis Peguam - Kaveat yang difailkan di bawah s. 17 Akta Profesion Undang-Undang 1976 ('Akta 1976') - Permohonan pengetepian kaveat - Perubahan keadaan - Kaveat difailkan atas alasan pempetisyen mengalami penyakit schizorphrenia - Keadaan kesihatan pempetisyen telah beransur pulih - Sama ada pempetisyen telah memenuhi segala syarat-syarat yang digariskan di bawah s. 11 dan 12 Akta 1976 - Sama ada terdapat sebarang asas untuk kaveat dikekalkan Bagi pihak pemohon - R Shankar; T/n Ramachandran Shankar & Co Bagi pihak responden - Ganeshalingam; T/n Farez Jinnah
[2018] 1 LNS 2190	PA KONKRIT SDN BHD v. ECO WORLD TRADING SDN BHD AND ANOTHER APPEAL The concrete supplier cannot be held liable for the quality of workmanship after the concrete had been delivered to the site, especially when the ready-mixed concrete had passed the Slump Test and Cube Test (which are the only tests relevant to the supplier's scope of work). CONSTRUCTION LAW: Adjudication - Adjudication decision - Whether the cracks that had appeared in the structural works in the development projects were caused by the ready-mixed concrete of Grade 25 supplied by the concrete supplier or poor workmanship - Whether the concrete supplier complied with the prescribed Slump Test and Cube Test - Whether the concrete supplier had fraudulently represented the Cube Test Results - Whether the plaintiff proved the balance sum outstanding for the ready-mixed concrete supplied and delivered - Whether a low Standard Deviation in the Cube Test would justify a reasonable inference of tampering with the Cube Test results or fabricating the results EVIDENCE: Standard of proof for fraud in civil cases - Balance of probabilities - Whether there was cogent evidence to prove that the plaintiff has swapped the Cube Samples or tampered or manipulated the Cube Testing - Whether the allegations of manipulation, tampering, fabrication and fraudulent misrepresentation are mere conjecture or speculation For the plaintiff in WA-22C-58-09/2016 and defendant in WA-22C-47-03/2017 - Low Eu Thuan & Jeremy Low Jian Min; M/s Cheong Wai Meng & Van Buerle For the defendant in WA-22C-58-09/2016 and plaintiff in WA-22C-47-03/2017 - Wong Guo Bin & Tan Shu Ying; M/s Izral Partnership
[2018] 1 LNS 2191	PELUANG KARISMA SDN BHD v. LEE HOCK GUAN (i) A notice of termination is only valid if sufficient notice period is given in accordance with the termination clauses under the tenancy agreement. (ii) Where a landlord fails to comply with the terms of a tenancy agreement and takes the law into his own hands by unlawfully taking vacant possession of the premises; thereby depriving the tenant of the use and peaceful enjoyment of the rented premises, exemplary damages is appropriate. LANDLORD AND TENANT: Tenancy - Termination of Tenancy Agreement - Non-payment of water, electricity bills and outstanding rental later remedied by the tenant - Allegation of tenant subletting the premises to a third party without the landlord's prior written consent - Allegation of wrong and unlawful termination of the tenancy by the landlord - Insufficient notice of termination - Whether landlord committed trespass when vacant possession was taken back - Whether the tenant breached any terms of the Tenancy Agreement - Whether the termination of the Tenancy Agreement by the landlord is valid and proper - Whether vacant possession was handed over to the landlord CIVIL PROCEDURE: Damages - Assessment of damages - General damages - Special damages of RM5 million - Loss of business opportunity - Burden of proof - Exemplary damages - Whether the landlord's action in unlawfully taking possession of the premises was so outrageous warranting exemplary damages For the plaintiff - Frank Wong; M/s Rahman Rohaida For the defendant - Teh Soo Jin; M/s Marcus Chua & Co
[2018] 1 LNS 2192	IZMEER AIZAT IDRUSAM v. PP (i) The appeal is premature as the DNAA is not a final order that can be appealed against by the accused. Section 254A of the CPC allows the prosecution to continue with the prosecution for the same offence as if no discharge order was made. (ii) Where there was no express application by the DPP to seek a discharge of the accused, the court can order a DNAA. CRIMINAL PROCEDURE: Appeal - Appeal against Discharge Not Amounting to an Acquittal (DNAA) - Offence of robbery - Complainant withdrew the First Information Report - ss. 254 and 254A of Criminal Procedure Code - Whether the DNAA is a final order that can be appealed against - Whether withdrawal of First Information Report ipso facto discontinues a criminal action or demolishes the foundation of a case - Whether the Court can order a DNAA instead of an order for Acquittal and Discharge where the complainant withdrew the First Information Report. For the appellant - Balvinder Singh; M/s Shahrul Balvinder & Co For the respondent - Noor Husnita Mohd Radzi, Deputy Public Prosecutor; Pejabat Penasihat Undang-Undang Negeri Selangor

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CLJ 2020 Volume 3 (Part 1)

In the tort of libel, where the impugned article did not state the defendant as its author and the defendant had altogether denied making the statement, it is for the plaintiff to prove on a balance of probabilities that the defendant was responsible for causing the publication. The plaintiff too cannot rely on the defendant's failure to refute as a basis to prove his case, and must independently establish a 'perfect' case that the article was published or caused to be published by the defendant; failing which, the plaintiff's case must fall.
N Ganesan N Narayanan v. Waytha Moorthy Ponnusamy [2020] 3 CLJ 1 [CA]

• SUBJECT
• CORAM
• COUNSEL

In an ex parte application for leave to issue contempt proceedings, service of the notice to show cause against the alleged contemnor under O. 52 r. 2B of the Rules of Court 2012 is mandatory, and failure to comply with it is not curable under O. 1A and O. 2 thereof. Contempt proceedings is criminal in nature and involves the liberty of the proposed contemnor; hence any ambiguity or uncertainty as to service must be resolved in his favour.
Tan Boon Thien & Anor v. Tan Poh Lee & Ors [2020] 3 CLJ 28 [CA]

• SUBJECT
• CORAM
• COUNSEL

The court will not make a declaratory judgment when the issue in dispute is purely academic; likewise it will not answer an academic question which is no longer a live issue.
Tan Sri Musa Hj Aman v. Tun Datuk Seri Panglima Hj Juhar Hj Mahiruddin & Anor And Another Appeal [2020] 3 CLJ 42 [CA]

• SUBJECT
• CORAM
• COUNSEL

The amendment to s. 3(1) of the Pensions Adjustment Act 1980 by the Pensions Adjustment (Amendment) Act 2013 is not ultra vires art. 147 of the Federal Constitution and did not alter the rights of the retired members of public services to a 'less favourable' position; under art. 147 of the Federal Constitution, Parliament had expressly provided the necessary safeguard to preserve the constitutional rights of pensioners.
Aminah Ahmad v. Kerajaan Malaysia & Anor [2020] 3 CLJ 75 [HC]

• SUBJECT
• CORAM
• COUNSEL

The overriding consideration in the exercise of discretion to consider the suitability of a joint trial under s. 170 of the Criminal Procedure Code read with s. 165 thereof is whether such trial will be fair and just, and whether an accused will be prejudiced by the trial; also, a finding that there was one transaction should not without more result in the making of an order for a joint trial.

Where the charge against an accused is not relevant to the case of another, and a joint trial would result in an inordinate delay to either or both trials, or jeopardise an accused's fundamental rights, it is manifest that a joint trial is not desirable. The prejudice resulting from such joint trial is disproportionate to its purported convenience and will likely occasion a miscarriage of justice.
Daniel Yong Chen-I v. PP [2020] 3 CLJ 86 [HC]

• SUBJECT
• CORAM
• COUNSEL

The court is not seized with the jurisdiction to inquire into Forms H and N filed under s. 38 of the Land Acquisition Act 1960 objecting to the Land Administrator's award, if they did not state the apportionment for the compensation thus awarded by the Land Administrator to the parties named in Forms G and H.
KCSB Konsortium Sdn Bhd v. Pentadbir Tanah Johor Bahru & Anor And Other Cases [2020] 3 CLJ 112 [HC]

• SUBJECT
• CORAM
• COUNSEL

It is the duty of the police to ensure that a detainee under their custody is not harmed and that proper necessary medical care be given during the period of custody. Where the duty has been breached and a detainee assaulted to death during his detention, the court must send a strong message of censure and disapproval of such conduct and incidents, inter alia by awarding hefty quantum as damages for misfeasance in public office and other tort or crime committed upon the detainee.
Syed Mohamed Nur Ali v. Weddrin Mojingkin & Ors [2020] 3 CLJ 133 [HC]

• SUBJECT
• CORAM
• COUNSEL

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LNS Article(s)

1. A LOOK INTO THE COURT OF APPEAL'S RECENT DECISION IN SUBERAN A/L CHANDRAN v. XEROX BUSINESS SERVICES MALAYSIA SDN BHD*
   A case note ^{[Read excerpt]}
   by WONG KIAN JUN [2020] 1 LNS(A) xviii

[2020] 1 LNS(A) xviii



MALAYSIA

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A LOOK INTO THE COURT OF APPEAL'S RECENT DECISION IN SUBERAN A/L CHANDRAN v. XEROX BUSINESS SERVICES MALAYSIA SDN BHD*
A case note

by
WONG KIAN JUN

Brief background

Suberan was to oversee the implementation of the Touch N Go Project for Xerox Business Services Malaysia Sdn Bhd (“Company”) as the Project Director. Suberan’s role as Project Director had ceased to exist on his last day of employment with the Company and the Company never recruited another Project Director upon Suberan’s release.

At the time of retrenchment, Suberan’s position ceased to exist because the implementation of the Touch N Go Project had been completed and the Company was about to commence maintenance and warranty work for the coming years which was undertaken entirely by the team in India. At the material time, Suberan was not the only one affected as the Key Accounts Manager for Touch N Go was also released.

. . .

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

(Disclaimer: This article is presented for information purpose only and covers legal issues in a general way. The contents are not intended to constitute advice on any specific matter and should not be relied upon as a substitute for detailed legal advice. © 2019 Shearn Delamore & Co. All rights reserved.)

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2. REGULATING POST-MENOPAUSAL PREGNANCY IN MALAYSIA: A BRIEF ANALYSIS ON THE LEGAL, ETHICAL AND RELIGIOUS PERSPECTIVES ^{[Read excerpt]}
   by DR. HANIWARDA YAAKOB* [2020] 1 LNS(A) xix

[2020] 1 LNS(A) xix



MALAYSIA

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REGULATING POST-MENOPAUSAL PREGNANCY IN MALAYSIA:
A BRIEF ANALYSIS ON THE LEGAL, ETHICAL AND RELIGIOUS PERSPECTIVES

by
DR. HANIWARDA YAAKOB*

Abstract

The advancement of Assisted Reproductive Technologies has paved the way for post-menopausal women to procreate either using donated or own ova. This development has been greeted with both enthusiasm and apprehension due to the possible risks of post-menopausal pregnancy to women and the child born. Criticisms such as selfishness, an unnatural act and medical risks to the woman and child are the main concerns expressed over this practice. Nonetheless, these fears need to be carefully evaluated and weighed against the potential benefits of post-menopausal pregnancy. This task is undertaken in this paper where the main critics over post-menopausal pregnancy are critically analysed and refuted. Upon careful evaluation of the issues raised, this paper concludes that post-menopausal pregnancy should be viewed objectively and any move to legally prohibit the practice must be based on sound evidence. However, in the context of Malaysia, the role and influence of Islam in making law and policy is undeniable. This warrants an examination into Islamic views on pregnancy among post-menopausal women.

. . .

* Faculty of Law Universiti Kebangsaan Malaysia Email: hani75@ukm.edu.my

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