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Issue #15/2020
02 April 2020

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New This Week

CASE(S) OF THE WEEK

DATUK SERI ANWAR IBRAHIM v. GOVERNMENT OF MALAYSIA & ANOR [2020] 3 CLJ 593
FEDERAL COURT, PUTRAJAYA
TENGKU MAIMUN TUAN MAT CJ; AZAHAR MOHAMED CJ (MALAYA); DAVID WONG DAK WAH CJ (SABAH AND SARAWAK); MOHD ZAWAWI SALLEH FCJ;
ABANG ISKANDAR FCJ; IDRUS HARUN FCJ; NALLINI PATHMANATHAN FCJ
[CIVIL REFERENCE NO: 06(RS)-1-03-2019(W)]
11 FEBRUARY 2020

The referral jurisdiction of the Federal Court is governed by the principles, firstly that it should be construed in the light of art. 128(2) of the Federal Constitution and s. 84 of the Courts of Judicature Act 1964, secondly that the said s. 84 is not a carte blanche for all constitutional questions to be referred to it, and thirdly that although the Federal Court is the court of last resort in respect of constitutional issues, it does not pronounce, subject to the narrow exception that it retains a discretion to depart from the trite rule in exceptional circumstances, on abstract, academic or hypothetical issues, or on such issues as are bereft of an actual or real controversy. And so it must follow that, where a constitutional challenge is mounted by an applicant on the basis of the mere existence of a law, without at the same time showing that the law is being invoked to violate his or anyone's rights or interests, and without demonstrating that the application is falling within the exceptional category, the Federal Court must decline to entertain such an application or answer the constitutional questions posed. Such an application is clearly abstract and purely academic in nature, and bereft of any actual controversy.

CONSTITUTIONAL LAW: Legislation - Constitutionality - Act of Parliament - Constitutional issues - Issues concerning validity of law passed by Parliament - High Court referred to Federal Court constitutional questions by way of special case pursuant to s. 84 of Courts of Judicature Act 1964 - Whether Federal Court bound to answer constitutional questions posed - Whether Federal Court could answer abstract, academic and hypothetical questions - Whether there was actual controversy affecting rights and interests of parties - Whether basic statutory requirements of s. 84 satisfied - Federal Constitution, arts. 66(4), 128(2)

CONSTITUTIONAL LAW: Courts - Jurisdiction - Federal Court - Constitutional issues concerning validity of law passed by Parliament - High Court referred to Federal Court constitutional questions by way of special case pursuant to s. 84 of Courts of Judicature Act 1964 - Whether Federal Court bound to answer constitutional questions posed - Whether Federal Court could answer abstract, academic and hypothetical questions - Whether there was actual controversy affecting rights and interests of parties - Whether basic statutory requirements of s. 84 satisfied - Federal Constitution, arts. 66(4), 128(2)

CIVIL PROCEDURE: Courts - Jurisdiction - Special case - Special case referred to Federal Court from High Court pursuant to s. 84 of Courts of Judicature Act 1964 - Constitutional issues concerning validity of law passed by Parliament - Whether Federal Court bound to answer constitutional questions posed - Whether Federal Court could answer abstract, academic and hypothetical questions - Whether there was actual controversy affecting rights and interests of parties - Whether basic statutory requirements of s. 84 satisfied - Federal Constitution, arts. 66(4), 128(2)


ASIA PLYWOOD COMPANY SDN BHD v. AEON CO (M) BHD & ANOR [2020] 3 CLJ 685
HIGH COURT MALAYA, KUALA LUMPUR
ALIZA SULAIMAN JC
[ORIGINATING SUMMONS NO: 24NCVC-1425-09-2014]
26 JULY 2019

An order of the High Court or the Court of Appeal ordering the Registrar to assess damages in favour of the plaintiff for an alleged wrong committed by the defendant presupposes the defendant's liability to pay damages therefor. Such an order makes it incumbent on the Registrar to only hear evidence on the purported loss suffered by the plaintiff and thereafter to assess the appropriate quantum to be awarded. The Registrar must not again seek to determine whether the plaintiff had actually suffered damages arising from the wrong, let alone to come to a conclusion that the plaintiff has not, on the facts and in the circumstances, suffered any loss or damage. It needs no reiteration that any such decision of the Registrar is erroneous, and bound to be reviewed and set aside.

CIVIL PROCEDURE: Appeal - Appeal against decision of Deputy Registrar ('DR') - Assessment of damages - Claim for damages as a result of wrongful entry of caveat - Whether claimant proved caveat wrongfully entered - Whether claimant suffered damages - Whether real and actual damages proved - Whether DR erred in revisiting issue of liability - Whether decision of DR warranted appellate intervention

LAND LAW: Caveats - Private caveat - Wrongful entry - Claim for damages - Compensation under sub-s. 329(1) of National Land Code - Whether awarded for actual damages which are reasonably foreseeable - Whether claimant proved caveat wrongfully entered - Whether claimant suffered damages - Whether real and actual damages proved - Whether claim for diminution of value of land ought to be allowed


JULITA TINGGAL v. KWAN AH HEE (DECEASED) & ORS [2020] 3 CLJ 712
HIGH COURT SABAH & SARAWAK, KOTA KINABALU
SUPANG LIAN J
[JUDICIAL REVIEW NO: BKI-13NCVC-17-10-2017 (HC2)]
01 AUGUST 2019

The three-member panel of the Sabah Native Court of Appeal, which comprises a High Court Judge and two District or Native Chiefs stand on equal footing to each other as members of the panel. In the event, where the court is minded to pass a majority judgment with the learned Judge being the dissenting opinion, the concurring judgments of the two Chiefs must prevail as the final judgment of the court. This is in accord with the plain meaning of s. 24 of the Sabah Native Courts Enactment 1992. It is also notable that the two Chiefs were sitting as equal members of the panel and not as "assessors sitting with a Judge" prescribed in s. 40D of the Land Acquisition Act 1960. That being so, the ratio as enunciated by the Federal Court in Semenyih Jaya does not therefore apply to the two Chiefs.

JURISDICTION: Courts - Powers and jurisdiction - Native Court of Appeal ('NCA') - Composition of - Three member panel comprising of one High Court Judge and two other members being District Chiefs or Native Chiefs - Whether all three members on equal footing to make decisions - Whether mandatory for NCA to deliver judgment based on majority decision - Whether minority decision of presiding High Court Judge could take priority over majority decision of Native Chiefs - Sabah Native Courts Enactment 1992, ss. 5 & 24


JUDICIAL QUOTES

"The question was, did the Attorney General and/or his officers have the standing to appear and attend at the leave stage of a judicial review proceedings notwithstanding that he was not representing the putative respondents. There are ample authorities to say that they have. We refer to art. 145 of the Federal Constitution. Further, in a judicial review application, under O. 53 of the Rules of Court 2012, the application must be served on the Attorney General. This rule is based on the principle that judicial review is a principal tool of "public law" applicable to "public" bodies. As public bodies impliedly attract public interest and the guardian of public interest is the Attorney General, this makes the Attorney General a nominal party in all judicial review applications. The intention of the rule is to ensure that the Attorney General vets all judicial review applications in order to ascertain if his participation is warranted. Whether the Attorney General elects to appear or not is solely his discretion and if he elects to appear, the court is bound to give a hearing" – per Stephen Chung JCA in Messrs Tai Choi Yu & Co, Advocates v. Arifin Zakaria & Anor [2020] 2 CLJ 508

For more Judicial Quotes, please login and view under "References" or subscribe to CLJLaw.


LATEST CASES

Legal Network Series

[2018] 1 LNS 2036

HAO PIN WEI BIOTECH & FOOD CO LTD v. HAI PA WANG INTERNATIONAL GROUP CORP

A party who has generated substantial goodwill and reputation through extensive usage of a trade mark and trade name in marketing and promoting its business products globally deserves intellectual property protection against unlawful misappropriation.

INTELLECTUAL PROPERTY: Trade Marks - Expungement - Application to expunge from register - Trademark not in usage - Registration of plaintiff's trademark was obstructed by defendant's trademark which was not in usage - Whether plaintiff was an aggrieved person - Whether plaintiff has genuine interest in registering trade mark - Whether plaintiff has generated substantial goodwill and reputation through extensive usage of trade mark - Whether plaintiff's trade mark and trade name deserved intellectual property protection - Trade Marks Act 1976, s. 46(1)(b)

  • For the plaintiff - Chung Chee Yien; Yeap, Yong & Amy

[2018] 1 LNS 2037

CLUB TWENTY-ONE RETAIL (MALAYSIA) SDN BHD v. KETUA PENGARAH KASTAM JABATAN KASTAM DIRAJA MALAYSIA

Subsection 191(3) of Goods and Services Tax Act 2014 must be adhered to and infringement of the same empowers the Director General of Customs to reject an application for special refund of sales tax pursuant to ss. 190 and 191.

ADMINISTRATIVE LAW: Judicial review - Certiorari - Judicial review against decision of Director General of Customs in rejecting application for special refund for sales tax - Major discrepancies with regard to price declared - Inaccuracy, false and misleading information provided by applicant in its application for special refund - Whether infringement of s. 191(3) of Goods and Services Tax Act 2014 empowers the DGC to reject claim for refund - Whether there was sufficient ground to reject application for special refund

  • For the applicant - Jason Tan; M/s Lee Hishammuddin Allen & Gledhill
  • For the respondent - Farah Azlin Yusof Khan; Senior Federal Counsel, Bahagian Perundangan, Ibu Pejabat Kastam DiRaja Malaysia

[2018] 1 LNS 2038

GURIT KAUR SOHAN SINGH v. DATUK BANDAR KUALA LUMPUR & ANOR

There is no requirement to issue a notice of objection session to a registered land owner or registered owner of parcel of condominium by virtue of r. 5(6) of Planning (Development) Rules 1970.

ADMINISTRATIVE LAW: Exercise of administrative powers - Development order - Allegation of non-service of notice of objection session - Application to quash act done after issuance of development order - Whether there was requirement to issue a notice to registered land owner or parcel of condominium - Whether decision to issue development order was informed to management corporation - Whether applicant had opportunity to be heard pursuant to rr. 5(5) and (6) of Planning (Development) Rules 1970 - Whether issuing of development order was tainted with illegality, irrationality, unreasonableness or procedural impropriety

CIVIL PROCEDURE: Locus standi - Judicial review - Application to quash development order - Allegation that applicant was not registered owner of lands adjoining development land - Whether applicant's parcel must touch boundary of development land - Whether applicant fulfilled requirement of r. 5(3)(a) of Planning (Development) Rules 1970 - Whether applicant has locus standi to initiate application for judicial review

  • For the applicant - Shahredzan Johan; M/s RamRais & Partners
  • For the 1st respondent - B Thangaraj & M Nalani; M/s Thangaraj & Associates
  • For the 2nd respondent - S Selvraj; M/s Fernandez & Selvarajah

[2019] 1 LNS 66

MUHAMMAD ZAMANI MAT ZIN lwn. PP

Dokumen pengenalan diri tertuduh yang dijumpai di tempat kejadian adalah keterangan sokongan utama yang menyokong keterangan saksi kanak-kanak bahawa perayu adalah lelaki yang telah merompak semasa kejadian.

UNDANG-UNDANG JENAYAH: Kanun Keseksaan - Seksyen 397 - Rompakan berkumpulan bersenjata - Pertikaian berkenaan pengecaman tertuduh - Pengecaman oleh saksi kanak-kanak - Dompet tertuduh tercicir di tempat kejadian - Kawad cam dikendalikan 3 hari selepas kejadian rompakan - Sama ada tertuduh telah dicam secara positif - Sama ada dokumen pengenalan diri tertuduh adalah keterangan sokongan utama yang menyokong keterangan kanak-kanak

PROSEDUR JENAYAH: Pembelaan - Alibi- Pertuduhan rompakan berkumpulan - Tertuduh menafikan hadir di tempat kejadian semasa berlaku rompakan - Tertuduh mendakwa telah disamun pada hari yang sama - Sama ada pembelaan perayu adalah bersifat penafian semata-mata - Sama ada tertuduh telah menimbulkan keraguan yang munasabah dalam kes pendakwaan

  • Bagi pihak perayu - Izleen Ismail; Yayasan Bantuan Guaman Kebangsaan Selangor
  • Bagi pihak responden - Poh Yih Tinn & Mohd Raimi Ramli; Bahagian Pendakwaan; Jabatan Peguam Negara; Pusat Pentadbiran Kerajaan Persekutuan Putrajaya

[2019] 1 LNS 67

KUGENDREN RAJAMOGAN lwn. TIMBALAN MENTERI DALAM NEGERI MALAYSIA & YANG LAIN

Khidmat jurubahasa tidak diperlukan ketika siasatan apabila tahanan memahami Bahasa Malaysia. Kegagalan membekalkan khidmat jurubahasa tidak boleh menyebabkan laporan pegawai penyiasat dan perintah tahanan menjadi defektif.

PENAHANAN PENCEGAHAN: Perintah tahanan - Permohonan writ habeas corpus - Tahanan di bawah s. 6(1) Akta Dadah Berbahaya (Langkah-Langkah Pencegahan Khas) 1985 ('Akta 1985') - Dakwaan jurubahasa Tamil tidak dibekalkan ketika rakaman percakapan direkodkan - Tahanan memahami Bahasa Malaysia - Sama ada rakaman percakapan yang disediakan oleh pegawai penyiasat adalah defektif - Sama ada kehendak s. 4 Akta 1985 telah dipenuhi - Sama ada laporan siasatan mempunyai hubungan terus dengan penahanan pemohon - Sama ada perintah tahanan yang dikeluarkan telah melebihi 60 hari

  • Bagi pihak pemohon - N Sivananthan & Jayarubbini; T/n Sivananthan
  • Bagi pihak responden-responden - Nor Baizura Mohd Saubian; Peguam Persekutuan, Kementerian Dalam Negeri Malaysia

CLJ 2020 Volume 3 (Part 5)

The referral jurisdiction of the Federal Court is governed by the principles, firstly that it should be construed in the light of art. 128(2) of the Federal Constitution and s. 84 of the Courts of Judicature Act 1964, secondly that the said s. 84 is not a carte blanche for all constitutional questions to be referred to it, and thirdly that although the Federal Court is the court of last resort in respect of constitutional issues, it does not pronounce, subject to the narrow exception that it retains a discretion to depart from the trite rule in exceptional circumstances, on abstract, academic or hypothetical issues, or on such issues as are bereft of an actual or real controversy. And so it must follow that, where a constitutional challenge is mounted by an applicant on the basis of the mere existence of a law, without at the same time showing that the law is being invoked to violate his or anyone's rights or interests, and without demonstrating that the application is falling within the exceptional category, the Federal Court must decline to entertain such an application or answer the constitutional questions posed. Such an application is clearly abstract and purely academic in nature, and bereft of any actual controversy.
Datuk Seri Anwar Ibrahim v. Government Of Malaysia & Anor [2020] 3 CLJ 593 [FC]

|

CONSTITUTIONAL LAW: Legislation - Constitutionality - Act of Parliament - Constitutional issues - Issues concerning validity of law passed by Parliament - High Court referred to Federal Court constitutional questions by way of special case pursuant to s. 84 of Courts of Judicature Act 1964 - Whether Federal Court bound to answer constitutional questions posed - Whether Federal Court could answer abstract, academic and hypothetical questions - Whether there was actual controversy affecting rights and interests of parties - Whether basic statutory requirements of s. 84 satisfied - Federal Constitution, arts. 66(4), 128(2)

CONSTITUTIONAL LAW: Courts - Jurisdiction - Federal Court - Constitutional issues concerning validity of law passed by Parliament - High Court referred to Federal Court constitutional questions by way of special case pursuant to s. 84 of Courts of Judicature Act 1964 - Whether Federal Court bound to answer constitutional questions posed - Whether Federal Court could answer abstract, academic and hypothetical questions - Whether there was actual controversy affecting rights and interests of parties - Whether basic statutory requirements of s. 84 satisfied - Federal Constitution, arts. 66(4), 128(2)

CIVIL PROCEDURE: Courts - Jurisdiction - Special case - Special case referred to Federal Court from High Court pursuant to s. 84 of Courts of Judicature Act 1964 - Constitutional issues concerning validity of law passed by Parliament - Whether Federal Court bound to answer constitutional questions posed - Whether Federal Court could answer abstract, academic and hypothetical questions - Whether there was actual controversy affecting rights and interests of parties - Whether basic statutory requirements of s. 84 satisfied - Federal Constitution, arts. 66(4), 128(2)

TENGKU MAIMUN TUAN MAT CJ
AZAHAR MOHAMED CJ (MALAYA)
DAVID WONG DAK WAH CJ (SABAH AND SARAWAK)
MOHD ZAWAWI SALLEH FCJ; ABANG ISKANDAR FCJ
IDRUS HARUN FCJ
NALLINI PATHMANATHAN FCJ

  • For the appellant - Gopal Sri Ram, Leela Jesuthasan, Emily Wong, How Li Nee & Raveena Kaur; M/s Chambers of Leela J
  • For the respondent - Alice Loke Yee Ching, Suzana Atan & Narkunavathy Sundareson; SFCs

The principle of merger of causes of actions into a judgment, including a consent judgment, in civil litigation prevents a second action from being brought on the same cause of action. This said, where several guarantors of a banking facility were sued as jointly and severally liable for the facility and judgment was entered against one, the cause of action as against the others may remain and may not merge with the judgment. Words and phrases such as "the defendant do pay the plaintiff jointly and severally and on a joint and several liability" used in the agreement leaves little doubt that a separate cause of action against any other defendant may still subsist and remain intact.
CIMB Bank Bhd v. Voo Sin Pei [2020] 3 CLJ 675 [CA]

CIVIL PROCEDURE: Judgments - Merger - Default in repayment of banking facilities - First guarantor entered into consent judgment with bank and settled with reduced sum - Second guarantor proceeded to full trial - Whether second guarantor may still be made liable in face of consent judgment - Whether principle of merger applied - Whether there was another cause of action - Whether there was preservation of right to sue

 

MARY LIM JCA
ZABARIAH MOHD YUSOF JCA
VAZEER ALAM MYDIN MEERA JCA

  • For the appellant - Zaleha Mohd Yusuf Pan & Cason Chin Jia Sheng; M/s Peter Lo & Co
  • For the respondent - Francis Wong & Voo Jin Min; M/s Voo & Co

An order of the High Court or the Court of Appeal ordering the Registrar to assess damages in favour of the plaintiff for an alleged wrong committed by the defendant presupposes the defendant's liability to pay damages therefor. Such an order makes it incumbent on the Registrar to only hear evidence on the purported loss suffered by the plaintiff and thereafter to assess the appropriate quantum to be awarded. The Registrar must not again seek to determine whether the plaintiff had actually suffered damages arising from the wrong, let alone to come to a conclusion that the plaintiff has not, on the facts and in the circumstances, suffered any loss or damage. It needs no reiteration that any such decision of the Registrar is erroneous, and bound to be reviewed and set aside.
Asia Plywood Company Sdn Bhd v. Aeon Co (M) Bhd & Anor [2020] 3 CLJ 685 [HC]

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CIVIL PROCEDURE: Appeal - Appeal against decision of Deputy Registrar ('DR') - Assessment of damages - Claim for damages as a result of wrongful entry of caveat - Whether claimant proved caveat wrongfully entered - Whether claimant suffered damages - Whether real and actual damages proved - Whether DR erred in revisiting issue of liability - Whether decision of DR warranted appellate intervention

LAND LAW: Caveats - Private caveat - Wrongful entry - Claim for damages - Compensation under sub-s. 329(1) of National Land Code - Whether awarded for actual damages which are reasonably foreseeable - Whether claimant proved caveat wrongfully entered - Whether claimant suffered damages - Whether real and actual damages proved - Whether claim for diminution of value of land ought to be allowed

ALIZA SULAIMAN JC

  • For the plaintiff - Lim Choon Khim & Chin Yan Leng; M/s Chooi, Saw & Lim
  • For the 1st defendant - Doshi Jyotsana & R Jayasingam; M/s BH Lawrence & Co

The three-member panel of the Sabah Native Court of Appeal, which comprises a High Court Judge and two District or Native Chiefs stand on equal footing to each other as members of the panel. In the event, where the court is minded to pass a majority judgment with the learned Judge being the dissenting opinion, the concurring judgments of the two Chiefs must prevail as the final judgment of the court. This is in accord with the plain meaning of s. 24 of the Sabah Native Courts Enactment 1992. It is also notable that the two Chiefs were sitting as equal members of the panel and not as "assessors sitting with a Judge" prescribed in s. 40D of the Land Acquisition Act 1960. That being so, the ratio as enunciated by the Federal Court in Semenyih Jaya does not therefore apply to the two Chiefs.
Julita Tinggal v. Kwan Ah Hee (Deceased) & Ors [2020] 3 CLJ 712 [HC]

JURISDICTION: Courts - Powers and jurisdiction - Native Court of Appeal ('NCA') - Composition of - Three member panel comprising of one High Court Judge and two other members being District Chiefs or Native Chiefs - Whether all three members on equal footing to make decisions - Whether mandatory for NCA to deliver judgment based on majority decision - Whether minority decision of presiding High Court Judge could take priority over majority decision of Native Chiefs - Sabah Native Courts Enactment 1992, ss. 5 & 24

 

SUPANG LIAN J

  • For the applicant - Ansari Abdullah; M/s Ansari & Co
  • For the 2nd & 3rd respondents - Raymond Szetu & Rebecca Thong; M/s Szetu & Co
  • For the 4th respondent - Dayangku Fazidah Bagul; Senior State Counsel, Sabah

Suatu permohonan di bawah ss. 417(2) dan 417(1)(cc) Kanun Tatacara Jenayah bagi memindah perbicaraan jenayah dari Mahkamah Rendah ke Mahkamah Tinggi tidak semestinya akan dibenarkan walaupun ia dipersetujui oleh kedua-dua pihak pendakwaan dan pembelaan. Mahkamah dalam melaksanakan kuasa kehakimannya masih perlu meneliti merit permohonan dan membuat keputusan yang sewajarnya. Dalam kes di mana pemohon dipertuduh di bawah s. 376 Kanun Keseksaan dan pendakwaan berhasrat untuk menggunakan peruntukan-peruntukan Akta Perlindungan Saksi 2009 bagi membolehkan saksi memberi keterangan secara "video link" dan atau "in camera", halkeadaan itu sahaja tidak mewajarkan perbicaraan dipindah ke Mahkamah Tinggi. Ia tidak membangkitkan persoalan undang-undang yang luarbiasa, sukar atau kompleks dan dengan itu gagal memenuhi "threshold" yang ditetapkan oleh s. 417(1)(b) KTJ.
Yong Choo Kiong lwn. PP [2020] 3 CLJ 721 [HC]

PROSEDUR JENAYAH: Pemindahan perbicaraan - Bidang kuasa mahkamah - Permohonan pemindahan perbicaraan jenayah dari Mahkamah Sesyen ke Mahkamah Tinggi - Sama ada terdapat isu undang-undang kompleks mewajarkan pemindahan perbicaraan - Sama ada kehendak s. 417(1)(b) Kanun Tatacara Jenayah dipenuhi - Sama ada isu-isu yang dibangkitkan melibatkan isu undang-undang dan isu-isu relevan - Kanun Tatacara Jenayah, ss. 417(1)(cc), (e) & (2)

 

MOHD RADZI HARUN PK

  • Bagi pihak pemohon - Rajpal Singh Mukhtiar Singh, Salim Bashir Bhaskaran, Muhammad Farhan Sapian & Raja Nur Hanani Raja Abd Rahman; T/n Leong & Tan
  • Bagi pihak responden - Azhar Mokhtar, Ainul Wardah Shahidan & Naidatul Athirah Azman; TTPR

ARTICLES

LNS Article(s)

  1. HIGHLIGHTS ON BANK NEGARA'S SHARIAH GOVERNANCE POLICY 2019* [Read excerpt]
    by MOHAMMAD MAHBUBI ALI [2020] 1 LNS(A) xxvi

  2. [2020] 1 LNS(A) xxvi
    logo
    MALAYSIA

    HIGHLIGHTS ON BANK NEGARA'S SHARIAH GOVERNANCE POLICY 2019*

    by
    MOHAMMAD MAHBUBI ALI

    On October 26, 2010, Bank Negara Malaysia (BNM) introduced the Shariah Governance Framework (SGF) for Islamic financial institutions (IFIs) operating under its purview (notably Islamic banks, conventional banks offering Islamic financial services and takaful companies).

    The SGF aimed to strengthen the shariah governance structures, processes and arrangements of IFIs to ensure shariah-compliance. The SGF required IFIs to institute clear internal control and remedial rectification measures to address shariah non-compliant incidents holistically.

    In response to emerging IFI business complexity and market maturity, on September 20, 2019, BNM issued a new, revised version of the SGF, namely Shariah Governance Policy (SGP), which supersedes the existing SGF.

    . . .

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


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  3. INTRODUCTION TO VARIOUS TYPES OF RETAIL PAYMENT SYSTEMS IN MALAYSIA* [Read excerpt]
    by KRYSTLE LUI SHU [2020] 1 LNS(A) xxvii

  4. [2020] 1 LNS(A) xxvii
    logo
    MALAYSIA

    INTRODUCTION TO VARIOUS TYPES OF RETAIL PAYMENT SYSTEMS IN MALAYSIA*

    by
    KRYSTLE LUI SHU

    In this article, Krystle Lui Shu Lin introduces the various types of retail payment systems available in Malaysia.

    Introduction

    The main regulator of payment systems and currency in Malaysia is the Central Bank of Malaysia, or in Malay, Bank Negara Malaysia (“BNM”). BNM must foster safe, efficient and reliable payment systems and payment instruments in Malaysia.[1]

    The main statutes regulating payment systems in Malaysia are the Financial Services Act 2013 (“FSA”) and, where applicable, the Islamic Financial Services Act 2013. A payment system means “any system or arrangement for the transfer, clearing or settlement of funds or securities”.[2]

    Payment Network Malaysia Sdn Bhd (“PayNet”) is an approved payment system operator under the FSA and owns several payment networks in Malaysia. BNM is the largest shareholder of PayNet, along with 11 other Malaysian banks as joint shareholders.

    . . .

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


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  5. SECTION 4(3) CIVIL LAW ACT 1956: A HURDLE TO THE APPLICATION OF EQUITABLE ASSIGNMENT? [Read excerpt]
    by Kho Yii Ting* Kho Feng Ming** [2020] 1 LNS(A) xxviii

  6. [2020] 1 LNS(A) xxviii
    logo
    MALAYSIA

    SECTION 4(3) CIVIL LAW ACT 1956:
    A HURDLE TO THE APPLICATION OF EQUITABLE ASSIGNMENT?


    by
    Kho Yii Ting*
    Kho Feng Ming**

    Abstract

    Assignment revolves around the action of transfer of rights, interests or debts by an assignor to the assignee. In our Malaysian context, the framework of legal assignment is manifestly put forth and governed by section 4(3) of the Civil Law Act 1956. However, the interpretation on the above provision appears to be silent on the acceptance and application of equitable assignment in the event the assignment fails to satisfy the statutory requirements. Using the content analysis methodology of research, this article intends to explain and justify that the statute does not prevent the application of equitable assignment in Malaysia. This paper seeks to elucidate the following for the readers, by explaining the definition of assignment, the statutory requirements to constitute a legal assignment, and circumstances as to when a legal assignment will become an equitable assignment. The paper further propounds as to how the statute does not prevent the application of equitable assignment, and explains the requirements to be fulfilled to constitute a valid equitable assignment with the aid of cases as illustration.

    . . .

    * Corresponding author. Faculty of Law, University Malaya khoyiiting@gmail.com.

    ** LL.B (1st Class Honours) Universiti Kebangsaan Malaysia Associate Qualification in Islamic Finance, IBFIM winkhomedic@yahoo.com.my.


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  7. THE IMPACT OF COVID-19 ON THE PERFORMANCE OF ENERGY & CONSTRUCTION CONTRACTS* [Read excerpt]
    by Dato' Nitin Nadkarni** Crystal Wong Wai Chin Lim Chee Yong Soh Zhen Ning Anis Raihan Binti Asmad [2020] 1 LNS(A) xxix

  8. [2020] 1 LNS(A) xxix
    logo
    MALAYSIA

    THE IMPACT OF COVID-19 ON THE PERFORMANCE OF ENERGY & CONSTRUCTION CONTRACTS*

    by
    Dato' Nitin Nadkarni**
    Crystal Wong Wai Chin
    Lim Chee Yong
    Soh Zhen Ning
    Anis Raihan Binti Asmad

    Introduction

    As fear surrounding the novel coronavirus (COVID-19) continues to spread across the nation, we are faced with the harsh reality of drastic disruptions to livelihoods, communities and business operations worldwide, which will likely continue into the foreseeable future. In an unprecedented move to restrain movements of workforce in Malaysia, the imposition of the nationwide Restriction of Movement Order ("RMO") from 18 March 2020 until 31 March 2020 brings much uncertainty. To date, much of the backbone of the economy, encompassing private business, have been ordered to close their premises. Only a fraction of the Government machineries, industries and services deemed essential, continue to operate. With the number of confirmed positive cases on the rise by the day, further stringent emergency restrictions to control the pandemic may well be in the pipeline.

    . . .

    * This article is reproduced, with permission by Lee Hishammuddin Allen & Gledhill, Advocates & Solicitors, Kuala Lumpur, Malaysia.

    **Partners, Associate and Pupils of Lee Hishammuddin Allen & Gledhill ("LHAG"), Energy, Infrastructure & Projects, And International Arbitration Practice.

    If you have any queries, please contact associate Lim Chee Yong (lhy@lh-ag.com) or team partners, Dato' Nitin Nadkarni (nn@lh-ag.com) and Crystal Wong Wai Chin (wwc@lh-ag.com).


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LEGISLATION HIGHLIGHTS

Principal Acts

Number Title In force from Repealing
ACT 827 Currency Act 2020 Not Yet In Force -
ACT 826 Food Donors Protection Act 2020 Not Yet In Force -
ACT 825 Anti-Fake News (Repeal) Act 2020 31 January 2020 -
ACT 824 Malaysian Health Promotion Board (Dissolution) Act 2019 1 April 2020 [PU(B) 119/2020] -
ACT 823 Finance Act 2019 Income Tax Act 1967 [Act 53] see s 3, Real Property Gains Tax Act 1976 [Act 169] see s 22, Stamp Act 1949 [Act 378] see s 27, Petroleum (Income Tax) Act 1967 [Act 543] see s 29, Sales Tax Act 2018 [Act 806] see s 35, Finance Act 2010 [Act 702] see s 37 and the Finance Act 2018 [Act 812] see s 39 -

Amending Acts

Number Title In force from Principal/Amending Act No
ACT A1617 Franchise (Amendment) Act 2020 Not Yet In Force ACT 590
ACT A1616 Central Bank of Malaysia (Amendment) Act 2020 Not Yet In Force ACT 701
ACT A1615 Industrial Relations (Amendment) Act 2020 Not Yet In Force ACT 177
ACT A1614 Labuan Business Activity Tax (Amendment) Act 2020 10 February 2020 - para 2(a) and s 13 and 15; Year of assessment 2020 and subsequent years of assessment - para 2(b) and s 3, 4, 5, 6, 7, 9, 10, 11, 12 and 14; 1 January 2019 - s 8 ACT 445
ACT A1613 Carriage of Goods by Sea (Amendment) Act 2020 Not Yet In Foce ACT 527

PU(A)

Number Title Date of Publication In force from Principal/ Amending Act No
PU(A) 104/2020 Sales Tax (Person Exempted from Payment of Tax) (Amendment) Order 2020 31 March 2020 1 April 2020 PU(A) 210/2018
PU(A) 103/2020 Road Transport (Prohibition of Use of Road) (Federal Roads) (No. 2) Order 2020 31 March 2020 1 April 2020 ACT 333
PU(A) 102/2020 Prevention and Control of Infectious Diseases (Declaration of Infected Local Areas) (Extension of Operation) Order 2020 - Corrigendum 30 March 2020   PU(A) 98/2020
PU(A) 101/2020 Pembangunan Sumber Manusia Berhad (Exemption of Levy) Order 2020 30 March 2020 1 April 2020 ACT 612
PU(A) 100/2020 Food (Amendment) Regulations 2020 30 March 2020 1 April 2020 PU(A) 437/1985

PU(B)

Number Title Date of Publication In force from Principal/ Amending Act No
PU(B) 187/2020 Declaration of Quarantine Stations (No. 4) 2020 27 March 2020 28 March 2020 ACT 342
PU(B) 186/2020 Declaration of Quarantine Stations (No. 3) 2020 26 March 2020 27 March 2020 ACT 342
PU(B) 185/2020 Notification of Values of Palm Kernel Under Section 12 25 March 2020 1 April 2020 to 30 April 2020 ACT 235
PU(B) 184/2020 Notification of Values of Crude Petroleum Oil Under Section 12 25 March 2020 27 March 2020 to 9 April 2020 ACT 235
PU(B) 183/2020 List of Labuan Takaful Licensees 24 March 2020 25 March 2020 ACT 705

Legislation Alert

Updated

Act/Principal No. Title Amended by In force from Section amended
PU(A) 437/1985 Food Regulations 1985 PU(A) 100/2020 1 April 2020 Regulation 386A
PU(A) 327/1993 Prevention and Control of Infectious Diseases (Compounding of Offences) Regulations 1993 PU(A) 99/2020 28 March 2020 First Schedule
PU(B) 393/2009 Establishment of Welfare Home PU(B) 97/2020 6 February 2020 Schedule
PU(B) 206/2019 Appointment of Members and Alternate Members of the Board PU(B) 96/2020 5 February 2020 Schedule
PU(B) 375/2019 Notification of Forfeiture of Deposit PU(B) 95/2020   Schedule

Revoked

Act/Principal No. Title Revoked by In force from
PU(A) 309/2009 Price Control (Fixing of Maximum Price) (No. 2) Order 2009 PU(A) 93/2020 20 March 2020
PU(A) 77/2020 Ministers of the Federal Government Order 2020 PU(A) 84/2020 1 March 2020
PU(A) 451/1999 Environmental Quality (Refrigerant Management) Regulations 1999 PU(A) 79/2020 1 June 2020
PU(A) 132/2019 Ministers of the Federal Government Order 2019 PU(A) 77/2020 24 February 2020
PU(A) 379/2006 Control of Supplies (Marking of Scheduled Article) Order 2006 PU(A) 63/2020 21 February 2020