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Issue #26/2020 18 June 2020

New This Week Case(s) of the Week AIM EDITION SDN BHD v. AMBANK (M) BHD [2020] 5 CLJ 439 JUDICIAL QUOTES  Appeal Updates Appeal Updates Latest Cases Legal Network Series CLJ 2020 Volume 5 (Part 4) CLJ 2020 Volume 5 (Part 5) Articles CLJ Article(s) LNS Article(s) Legislation Highlights Principal Acts Amending Acts PU(A) PU(B) Legislation Alert

AIM EDITION SDN BHD v. AMBANK (M) BHD [2020] 5 CLJ 439
COURT OF APPEAL, PUTRAJAYA
ZALEHA YUSOF JCA; HANIPAH FARIKULLAH JCA; KAMALUDIN MD SAID JCA
[CIVIL APPEAL NO: B-02(NCVC)(W)-2612-12-2018]
21 JANUARY 2020

CONTRACT: Agreement - Breach - Contract of public auction - Breach of proclamation of sale of land - Sale of land by way of public auction - Successful bidder/purchaser paid purchase price and signed contract of public auction - Contract contained proclamation of sale which provided size of land - Discovery that true size of land less than what was stated in proclamation of sale - Whether there was contract between parties - Whether there was breach of terms of contract - Whether vendor failed to deliver auctioned land as stated in proclamation of sale - Whether purchaser entitled to claim for damages

LAND LAW: Sale of land - Public auction - Proclamation of sale of land - Breach of - Sale of land by way of public auction - Successful bidder/purchaser paid purchase price and signed contract of public auction - Contract contained proclamation of sale which provided size of land - Discovery that true size of land less than what was stated in proclamation of sale - Whether there was breach of terms in contract - Whether vendor failed to deliver auctioned land stated in proclamation of sale - Whether vendor, as chargee, liable to pay compensation for losses arising from any judicial sale by public auction - National Land Code, s. 269(3)

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“The learned trial judge had relied on cases of ordinary normal accused persons suffering from no mental disabilities in applying the proposition that an unsworn statement from the dock is to be given less weight as compared to evidence given under oath. However when dealing with "vulnerable" persons like an OKU appellant, the court must take judicial notice of the fact of his mental disability and the deficiencies and delay in response to mental intercourse and comprehension. The fact that a "mentally disabled" person chose to give evidence by way of an unsworn statement from the dock should not be given less weight for that may be the only way in which he is competent and confident of giving evidence with respect to his recollection and recall of what happened.”

“The status of an unsworn statement has been variously expressed in conflicting decisions of the courts and with respect to vulnerable accused persons like the appellant here, one must try to adapt the criminal procedure in such a manner as to facilitate the evidence of the mentally disabled accused instead of frustrating it or giving it featherweight, appreciating that an accused person with such a mental disability is disadvantaged by the system that works well only with normal accused persons.” – per Lee Swee Seng JCA in Muhd Haslam Abdullah v. PP [2020] 4 CLJ 328

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1. Azadegan Golara lwn. PP [2020] 1 LNS 63 (CA) mengesahkan kes Mahkamah Tinggi Pendakwa Raya v. Azadegan Golara [Perbicaraan Jenayah No: 45A - 236- 12/2013]

2. Soha Beta v. PP [2020] 1 LNS 62 (CA) overruling in part the High Court case of PP v. Soha Beta & Anor [2019] 6 CLJ 379

Legal Network Series

[2019] 1 LNS 210	GABUNGAN KOPERASI PERUMAHAN MALAYSIA BHD v. DOMINION PARK SDN BHD A joint venture agreement to develop land is valid and binding when all the conditions precedent have been executed and completed. A decree of specific performance ought to be granted against a party when the other party to a valid and binding joint venture agreement is at all times ready, willing and able to perform the said agreement. CONTRACT: Joint venture - Joint venture agreement - Validity - Land development - Performance of conditions precedent - Owner of land alleged express condition in title cannot be removed resulting in frustration of agreement - Allegation of mistake as to availability of road reserve - Whether owner was aware of express condition to land upon issuance of new title - Whether mistake was essential to agreement which vitiates instrument and renders it void - Whether developer acted reasonably and prudently in ensuring agreement was fulfilled and to commence project CONTRACT: Specific performance - Joint venture agreement - Valid and binding agreement - One party was ready, willing and able to perform agreement - Whether decree of specific performance ought to be granted For the plaintiff - V Jeya Kumar & Nasyrah Samir; M/s Kanesalingam & Co For the defendant - Karen Lee Foong Voon & Sean Tan Tee Li; M/s Wong Kian Kheong
[2019] 1 LNS 230	NG YOKE HAR v. PERNOD RICARD MALAYSIA SDN BHD Termination of service agreement as a result of failure to meet business objectives and key performance index is valid and justified. A party intending to terminate the service must give requisite notice to the other side. CONTRACT: Termination - Validity - Termination of service - Termination due to unsatisfactory performance and failure to meet key performance index ('KPI') as stated in business plan - Whether defendant has right to terminate agreement when plaintiff's business objective and KPI's were below expectation and satisfaction - Whether plaintiff was informed of defendant's expectations and reasonable standard as guideline - Whether defendant must issue 30 days written notice to warn plaintiff of possibility of termination - Whether agreement was validly terminated For the plaintiff - Tan Lee Kiat; Othman Hashim & Co For the defendant - Ziang Wen; M/s Skrine
[2019] 1 LNS 255	LEONG CHOY WAN (P) v. LOW KAM YU (L) A variation order concerning matrimonial asset can be made post a decree nisi order, in the interest of justice and fairness, notwithstanding that s. 76 of Law Reform (Marriage and Divorce) 1976 states the division of matrimonial asset is to be made at the time of granting of decree nisi. FAMILY LAW: Decree nisi - Variation - Matrimonial property - Order for transfer of matrimonial property - Application by wife following husband's failure to comply with decree nisi order for transfer of matrimonial home to wife - Application not objected to by husband - Husband left matrimonial home immediately after decree nisi - Application filed 8 years after decree nisi - Husband continued to pay housing loan after decree nisi - Whether division of matrimonial property could be made post granting of decree nisi - Whether justice and fairness require transfer of matrimonial property post decree nisi - Whether husband should be reimbursed for loan that he had paid after date of decree nisi For the petitioner wife - Harbans Kaur; M/s Harbans & Associates For the respondent husband - M Robert; M/s Yae, Seng Wai & Partners
[2018] 1 LNS 629	PP lwn. HASNEE SHAHADAN & YANG LAIN Niat bersama tidak akan wujud semata-mata kerana tertuduh berada bersama pengedar dadah yang sebenar. Tertuduh perlu memainkan peranan yang aktif untuk mewujudkan niat bersama. PROSEDUR JENAYAH: Rayuan - Rayuan terhadap pembebasan - Rayuan oleh pihak pendakwaan - Pertuduhan pengedaran dadah berbahaya secara niat bersama - Urusan jual beli dadah - Tertuduh tidak terlibat di dalam rundingan jual beli dadah - Tertuduh berada bersama pengedar dadah sebenar - Sama ada pembelaan telah berjaya menimbulkan keraguan munasabah terhadap kewujudan elemen niat bersama - Sama ada tertuduh telah memberikan penjelasan yang munasabah berkenaan kehadirannya bersama pengedar dadah yang sebenar - Sama ada tertuduh perlu memainkan peranan yang aktif untuk mewujudkan niat bersama Bagi pihak perayu - Ahmad Sazilee Abdul Khairi, Timbalan Pendakwa Raya; Bahagian Perbicaraan dan Rayuan, Jabatan Peguam Negara Putrajaya Bagi pihak responden ketiga - Mohd Radzi Yatiman; T/n Rahim & Lawrnee
[2018] 1 LNS 934	MUHAMMED SHAREEF MOHAMED SAGUBAR & YANG LAIN lwn. MALAYSIA BUILDING SOCIETY BERHAD Dalam tindakan untuk fitnah, plaintif mesti menyatakan secara spesifik butir-butir fakta dan perkara-perkara kata-kata yang dia mengadu telah digunakan dengan maksud memfitnahkannya; Hakikat bahawa hutang plaintif masih tertunggak bermakna nama plaintif yang disenaraikan di dalam sistem CRRIS bukanlah bersifat fitnah ACARA SIVIL: Tindakan - Fitnah - Nama plaintif dimasukkan di dalam system CCRIS - Samada CCRIS adalah sistem senarai hitam atau hanya rujukan institusi kewangan - Samada terdapat maklumat plaintif yang salah di dalam laporan CCRIS - Plaintif mempunyai hutang tertunggak - Kesannya ke atas tindakan plaintif - Sama ada plaintif mesti menyatakan secara spesifik butir-butir fakta dan perkara-perkara kata-kata yang dia mengadu telah digunakan dengan maksud memfitnahkannya Bagi pihak plaintif - Fathima Idris; T/n Idris & Associates Bagi pihak defendan - Nabilah Hani Kadir; T/n Tawfeek Badjenid & Partners

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CLJ 2020 Volume 5 (Part 4)

A judicial sale of land conducted by the court at the instance of a chargee under s. 256 of the National Land Code creates a valid and enforceable sale and purchase agreement as between the chargee and the successful bidder. In such a sale, the law considers the conditions for sale as the terms and conditions for the contract, whilst the chargee and the successful bidder the vendor and purchaser respectively. This being the case, it follows therefore that where a bidder has bid and paid for 94.76 hectares of land at the auction, but received only 81.99 hectares, there was a breach of the terms of the agreement. Needless to say, the bidder is entitled in law to claim damages for the losses suffered.
AIM Edition Sdn Bhd v. AmBank (M) Bhd [2020] 5 CLJ 439 [CA]

• SUBJECT
• CORAM
• COUNSEL

In a claim for unlawful termination of a sub-contract against a main contractor, the court must as a matter of necessity determine whether the parties had strictly complied with the terms thereof, and in any case, whether there was a fundamental breach of the contract justifying such termination. A termination that contravenes the terms of the contract is unsustainable in law; likewise, no right to repudiate may avail to the main contractor where there was part performance of the contract by the sub-contractor.
Richallenge Corporation Sdn Bhd v. Poteck Enterprise Sdn Bhd [2020] 5 CLJ 472 [CA]

• SUBJECT
• CORAM
• COUNSEL

'Without prejudice' communications and correspondences are privileged documents exchanged during negotiations with the objective of settling disputes between parties, and the evidence of such documents or the contents of such negotiations as the case may be, and as a matter of general rule, will not be admissible in court and cannot be used to prejudice either party. Be that as it may, the facts and the circumstances may require that the issue be looked at more broadly, in which case the court may have to resolve the same by balancing two different public interests, viz. the interest in promoting settlements and the interest in full discovery between parties to litigation.
Fanuc Sdn Bhd v. Adenland (Cheras) Sdn Bhd & Anor [2020] 5 CLJ 489 [HC]

• SUBJECT
• CORAM
• COUNSEL

An application for discovery of documents, as so required by O. 24 rr. 12 and 13(1) of the Rules of Court 2012 must be predicated upon the rationale that the documents were needed for disposing the cause or matter and for saving costs. The test relates more to necessity than to fairness. Where therefore an applicant has specifically identified the documents sought for and showed adequate justifications for their discovery, and further demonstrated that the documents did in fact relate to his as well as the defendant's case, the threshold statutory requirements might have thereby been met, which might therefore warrant the court to allow the application.
Jalex Sdn Bhd v. City Properties Sdn Bhd & Ors [2020] 5 CLJ 520 [HC]

• SUBJECT
• CORAM
• COUNSEL

A notice of motion by the Public Prosecutor to reinstate an appeal and to extend time which in turn seeks to invoke the discretionary powers of the court must be carefully and diligently made. Defects such as misstating the case number, or misstating the intent or purport of the application, or misstating facts in the supporting affidavit may cause confusion to the parties and the court, and may thus be considered as major defects. Such errors may have a fatal effect on the application and may cause it to be struck out.
PP v. Ishak Basri [2020] 5 CLJ 532 [HC]

• SUBJECT
• CORAM
• COUNSEL

Once a general meeting had been properly convened by the shareholders under s. 310(b) of the Companies Act 2016, there is an overriding duty on the directors of the company not to deliberately call for another competing general meeting, especially one on a date anterior to the meeting that had already been called. Such an act is callous for its disruptive effect and may unjustifiably interfere with the members' statutory right to convene a meeting of members. Indeed, sans any compelling reason therefor, such a competing meeting may be declared invalid by the court.
Safari Alliance Sdn Bhd v. Tiger Synergy Bhd & Another Case [2020] 5 CLJ 542 [HC]

• SUBJECT
• CORAM
• COUNSEL

The decision of the Attorney General to prefer the criminal charges of criminal breach of trust against a former Director of the Asian International Arbitration Centre is unlawful and irrational, and susceptible to be reviewed by the court. The former Director, as it were, comes under the auspices of the Asian-African Legal Consultative Organisation (AALCO), and to that end enjoys immunity from any suit or legal process in respect of acts and things done previously in his capacity as the High Officer of the organisation. This privilege and immunity came about inter alia by reason of the Host Country Agreement which Malaysia has executed with AALCO in 1981, the International Organisations (Privileges and Immunities) Act 1992 (Act 485) and the Kuala Lumpur Regional Centre for Arbitration (Privileges and Immunities) (Amendment) Regulations 2011. The words "legal process" as appearing in the phrase "immune from suit and other legal process in respect of acts and things done in his capacity as such officer" in Part II of the Second Schedule to Act 485 must rightly and properly refer to "civil and criminal process", with the result that the former Director is exempted from the criminal prosecution that he was made to suffer from herein. What the phrase in essence entailed on the prosecutorial power of the Attorney General is that the Attorney General's discretionary power to prefer criminal charges against such former Director is subject to the privileges and immunities so conferred upon the latter; and since such discretion has been wrongly exercised it falls upon the court to intervene and to have the same quashed.
Sundra Rajoo Nadarajah v. Menteri Hal Ehwal Luar Negeri, Malaysia & Ors [2020] 5 CLJ 555 [HC]

• SUBJECT
• CORAM
• COUNSEL

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CLJ 2020 Volume 5 (Part 5)

A charge created over an estate land in favour of a chargee bank in the Islamic financing scheme of Bai Bithamin Ajil (BBA) is legal even without the validation or approval of the Estate Land Board. Such transaction cannot contravene s. 214A(1) of the National Land Code as it does not come within the ambit of the section. BBA is essentially a loan transaction that is carried out through a double sale and it is distinguishable from a regular sale and purchase agreement where only a single sale agreement is executed and where there is an intention to transfer property. The chargee's act of financing the purchase of the property in a BBA transaction indeed militates against any suggestion that it had intended to vest in itself ownership of the property, as its remedy, in the event of default, lies more in realizing the charge than owning the property.
Maple Amalgamated Sdn Bhd & Anor v. Bank Pertanian Malaysia Bhd [2020] 5 CLJ 581 [CA]

• SUBJECT
• CORAM
• COUNSEL

Where a fraudster, by submitting forged documents to the Land Office, had divested a registered proprietor of his property, and thereafter, on the strength of the forged documents and the property as security, and his status as the new registered proprietor, obtained a loan from a bank, the bank's interest in the property as registered chargee is defeasible and unenforceable as against the original registered proprietor. It must be so as the bank's position is not dissimilar to the position of an immediate purchaser, as the property was not and never sold to the fraudster in the first place. It ought also to be acknowledged that the bank's remedy in the circumstances should be to claim for damages against the Land Office, whose acts and omissions could well amount to negligence and bad faith.
Pendaftar Hakmilik Negeri Selangor & Ors v. Shaifulizam Mohd Saleh & Anor And Another Appeal [2020] 5 CLJ 595 [CA]

• SUBJECT
• CORAM
• COUNSEL

To allow a collection of a deposit of less than 10% of the purchase price before the signing of the sale and purchase agreement ('SPA'), pejoratively called a booking fee, would be repugnant to the whole purpose of the Housing Development (Control and Licensing) Act 1966 ('HDA') and the Housing Development (Control and Licensing ) Regulations 1989 ('Regulations'). It is irrelevant that a purchaser consents to the payment of a booking fee because the HDA and the Regulations are there to protect the purchaser and the prohibition (on taking booking fee) would have no bite if a booking fee or a deposit less than 10% of the purchase price is collected without the signing of the SPA. Therefore, the courts had no problem in calculating the late delivery claim from the expiry of the period of completion from the date the booking fee was paid and not from the date of the SPA for to take the SPA date would be to allow the perpetuation of a practice that the Regulations prohibit.
Sri Damansara Sdn Bhd v. Voon Kuan Chien & Anor [2020] 5 CLJ 619 [CA]

• SUBJECT
• CORAM
• COUNSEL

The sentence of three months' imprisonment as imposed by the learned Magistrate for an offence under reg. 3(1) read with reg. 3(2) of the Prevention and Control of Infectious Diseases (Measures within Infected Local Areas) (No. 2) Regulations 2020 is harsh and severely excessive taking into consideration the nature of the breach, the plea of guilty, the plea in mitigation and the public interest. On the facts and in the circumstances, the sentence ought to give way to a compulsory attendance order under s. 5(1) of Offenders Compulsory Attendance Act 1954. Both accused are thus ordered to be present at the Perak Compulsory Attendance Centre, and undertake compulsory work for four hours each day for a period of three months.
Chin Chee Wei & Anor v. PP [2020] 5 CLJ 640 [HC]

• SUBJECT
• CORAM
• COUNSEL

Section 42 of the Copyright Act 1987 refers to 'at the time specified therein' which requires a prima facie proof of a claimant's copyright at the time the claimant institutes an action. However, although s. 42 provides a means of proof, it is not the only means of proving copyright. Other than affidavit or statutory declaration, a person claiming copyright is allowed to adduce oral evidence or other evidence, the admission of which is not precluded by the Act.
Flexsoft Technology Sdn Bhd v. First E-Formatics Sdn Bhd & Ors [2020] 5 CLJ 650 [HC]

• SUBJECT
• CORAM
• COUNSEL

The plaintiff's offer to restructure an overdraft facility to a term loan, which the defendants accepted with conditions, tantamounted to a counter-offer and the plaintiff's subsequent conduct amounted to an implied acceptance of the counter-offer. However, the premature termination of the loan agreement negated the plaintiff's claim against the defendants.
RHB Bank Bhd v. Dugwoo (M) Sdn Bhd & Another Case [2020] 5 CLJ 674 [HC]

• SUBJECT
• CORAM
• COUNSEL

The Director General of Insolvency's (DGI) discretionary power to discharge a bankrupt under s. 33A of the Insolvency Act 1967 does not extend to vitiating or reversing a decision, order or directive of the court. Where therefore the court has dismissed an application to discharge a bankrupt, it is not open to the DGI to have subsequently and in ignorance of such decision discharged the bankrupt pursuant to his purported power under the said s. 33A. Such conduct and decision of the DGI, it needs little reiteration, is illegal, irrational and procedurally improper and liable to be reviewed and quashed.
TA Securities Holdings Bhd & Anor v. Ketua Pengarah Insolvensi & Ors [2020] 5 CLJ 690 [HC]

• SUBJECT
• CORAM
• COUNSEL

Section 51 of the Fisheries Act 1985 is not an offence per se where a fine is to be imposed upon the conviction of the accused persons. Section 51 further states that, in the event of the accused being found guilty of the offence, the costs of holding the vessel shall be a debt to the Government of Malaysia jointly and severally by the licensee, the permit holder, the owner and the master of the vessel and shall be recoverable accordingly. Although the Act is a piece of legislation which is penal in nature, the said holding charge is recoverable only as a debt by way of civil proceedings.
Vo Thanh Tay & Ors v. Malaysian Maritime Enforcement Agency [2020] 5 CLJ 705 [HC]

• SUBJECT
• CORAM
• COUNSEL

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CLJ Article(s)

1. A BUNDLING DILEMMA ^{[Read excerpt]}
   by TASHA CHANDRA* [2020] 5 CLJ(A) xi

[2020] 5 CLJ(A) xi



MALAYSIA

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A BUNDLING DILEMMA

by
TASHA CHANDRA*

Introduction

The recent Federal Court decision in the case of Melawangi Sdn Bhd v. Tiow Weng Theong^[1] has garnered mixed reactions from the legal fraternity as to its impact on the legal status of documents filed as part of the bundles of documents in a civil trial. Although the said case involved several legal and factual issues, the main issues that will be discussed here are the legal implications and effects of documents placed in the various bundles of documents, that are parts A, B and C that are to be filed in court prior to trial.

As a quick refresher, once pleadings have closed, the court will fix case management with the parties to, amongst others, enquire about any matters arising in the action, confirm that there has been compliance with the court's directions and generally, to give directions as to the future course of the case. This is known as a pre-trial case management which can be found under O. 34 of the Rules of Court 2012. At this pre-trial case management, the court will also direct the filing of documents such as the statement of agreed facts, issues to be tried, witness statements and other documents necessary for the expeditious and economical disposal of the trial. One of the core items that are crucial in every trial is the filing of the bundle of documents^[2]. The bundles should consist of all the documents that will be relied upon or referred to in the course of the trial.

. . .

* Sole Proprietor of Messrs K Chandra & Co

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LNS Article(s)

1. 8 KEY CONSIDERATIONS IN TAX AUDITS AND INVESTIGATIONS* ^{[Read excerpt]}
   by Jason Tan Jia Xin^[i], Edmund Yee Chung Hoong^[ii], Katryne Chia Phei Shan^[iii] [2020] 1 LNS(A) lxv

[2020] 1 LNS(A) lxv



MALAYSIA

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8 KEY CONSIDERATIONS IN TAX AUDITS AND INVESTIGATIONS*

by
Jason Tan Jia Xin^[i]
Edmund Yee Chung Hoong^[ii]
Katryne Chia Phei Shan^[iii]

2019 was a record-breaking year for the Inland Revenue Board (IRB) as it collected RM145 billion in direct taxes. This propelled the government to set a higher target of RM155 billion for 2020. However, this was before the COVID-19 outbreak, the crash in oil prices and the increasing emergence of global trade wars and tensions.

The COVID-19 outbreak led to the implementation of the Movement Control Order (MCO) and the Conditional MCO. With most companies having minimal or no business activity during the MCO, declining profits are to be expected, which in turn will lead to a direct hit on tax revenue to be collected by the IRB. Similarly, oil-related revenue will be affected by the sharp drop in Brent crude prices, thereby resulting in a lower collection of petroleum income taxes. In addition, with the global decline in demand for goods, a net exporter like Malaysia will be deeply impacted. Taxes to be collected from manufacturers will most likely also see a sharp decline in 2020.

. . .

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

[i]-[iii] Partners and Associates of Lee Hishammuddin Allen & Gledhill, Tax, SST & Customs Practice.

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2. DOMAIN NAME DISPUTE RESOLUTION: MITIGATING PERSONAL DATA LOSS DURING THE COVID-19 MOVEMENT CONTROL ORDER ^{[Read excerpt]}
   by IMADUDDIN SUHAIMI* [2020] 1 LNS(A) lxvi

[2020] 1 LNS(A) lxvi



MALAYSIA

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DOMAIN NAME DISPUTE RESOLUTION:
MITIGATING PERSONAL DATA LOSS DURING THE COVID-19 MOVEMENT CONTROL ORDER

by
IMADUDDIN SUHAIMI*

Abstract

Phishing schemes that leverage off the registration of confusingly similar domains has led to the loss of personal data for companies and individuals alike. This activity seems to have increased following the movement restrictions imposed by the Government of Malaysia in response to the COVID-19 pandemic. Whilst a court action for the tort of passing off is a possible remedy to address the issue of email-based phishing and website spoofing, there are several advantages to domain name dispute resolution (DNDR), which the author argues, is a faster and more cost-effective alternative to traditional litigation that achieves the primary goal of restraining further fraudulent activities from being conducted through misleading domain names.

. . .

* Copyright © 2020 Imaduddin Suhaimi, Advocate and Solicitor (High Court of Malaya), LLB, LLM, BSc (Biology), MSc (Molecular Biology). The author is a Fellow of the Chartered Institute of Arbitrators (CIArb), a Fellow of the Malaysian Institute of Arbitrators (MIArb) and a panel member of the Asian International Arbitration Centre (AIAC) and the Brunei Darussalam Arbitration Centre (BDAC).

[Declaration of Interest: The author clerked for the UDRP decision of Arkema France v. Xing Zhou, WIPO Case No. D109-0418.]

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