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Issue #28/2020 02 July 2020

New This Week Case(s) of the Week MELINDA STEVENSON v. PP [2020] 6 CLJ 34 JUDICIAL QUOTES  Latest Cases Legal Network Series CLJ 2020 Volume 6 (Part 1) Articles CLJ Article(s) LNS Article(s) Legislation Highlights Principal Acts Amending Acts PU(A) PU(B) Legislation Alert

MELINDA STEVENSON v. PP [2020] 6 CLJ 34
COURT OF APPEAL, PUTRAJAYA
ABDUL RAHMAN SEBLI JCA; ZABARIAH MOHD YUSOF JCA; HASNAH MOHAMMED HASHIM JCA
[CRIMINAL APPEAL NO: K-05(M)-168-03-2018]
12 MARCH 2020

CRIMINAL PROCEDURE: Appeal - Appeal against conviction and sentence - Accused convicted for offence of trafficking in drugs and sentenced to death - Drugs found concealed in luggage bag - Identification of exhibits done during adjournment of court - Whether there was positive identification of alleged drugs exhibits during trial - Whether there was break in chain of evidence - Whether procedure in criminal trial complied with - Whether conviction and sentence safe - Whether ought to be set aside - Dangerous Drugs Act 1952, s. 39B(1)(a) - Criminal Procedure Code, s. 264

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"The courts apply a more stringent test in considering stay of criminal proceedings. It is only in very exceptional or unusual circumstances that a stay order is granted"

"Now, the accused is a public figure who stands charged with offences which cannot by any means be described as trivial, allegedly committed while he was holding office as Prime Minister. Public interest and indeed his personal interest dictate that the trials against him should be commenced expeditiously without any unreasonable delay. He has not established to our satisfaction that his application is so unusual or exceptional that it falls within that class of cases which would justify the grant of a stay. As stated above, a stay of criminal proceedings will only be granted in the rarest of cases and the fact that the proceedings may be rendered a nullity is not a special circumstance." – per Richard Malanjum CJ in PP v. Dato' Sri Mohd Najib Hj Abd Razak [2019] 6 CLJ 561

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Legal Network Series

[2018] 1 LNS 1095	AMIZA NASRUN lwn. BERTAM PROPERTIES SDN BHD Seseorang yang dijadikan rakan kongsi di dalam sebuah firma guaman yang sedia ada tidak bertanggungjawab kepada anakguam firma guaman tersebut untuk perkara-perkara yang dilakukan sebelum dia menjadi rakan kongsi. PERKONGSIAN: Kewujudan perkongsian - Pertikaikan terhadap kewujudan - Rakan kongsi firma guaman - Ketiadaan perkongsian keuntungan - Sama ada surat daripada Majlis Peguam Malaysia dan surat tawaran lantikan dari firma guaman semata-mata memadai untuk membuktikan defendan sebagai rakan kongsi firma guaman PROFESYEN GUAMAN: Kewajipan berjaga-jaga - Kecuaian profesional - Tindakan guaman diambil oleh anak guam terhadap peguam - Tindakan terhadap rakan kongsi - Defendan kedua belum menjadi rakan kongsi ketika perlantikan firma guaman sebagai panel - Sama ada defendan kedua bertanggungan dengan apa-apa kecuaian yang dilakukan - Sama ada plaintif mempunyai kausa tindakan terhadap defendan kedua Bagi pihak perayu/defendan - P Navaratnam; T/n Nava & Associates Bagi pihak responden/plaintif - Mohamad Hairol Kamal Razali; T/n Badruzzaman & Kamal
[2018] 1 LNS 1096	EZLI EFIFUDDIN CHIK & SATU LAGI lwn. PP Penerimaan dan penemuan wang perangkap daripada tertuduh merupakan keterangan sokongan bebas yang menunjukkan satu dan hanya satu kesimpulan yang tidak dapat ditahan bahawa tertuduh menerima wang suapan daripada pemberinya. UNDANG-UNDANG JENAYAH: Rasuah - Meminta suatu suapan secara rasuah - Suapan diminta oleh penjawat awam untuk tidak mengambil tindakan undang-undang terhadap pesalah yang positif dadah - Sama ada permintaan wang suapan telah dibuktikan - Sama ada anggapan di bawah s. 50(1) Akta Suruhanjaya Pencegahan Rasuah Malaysia 2009 ('Akta SPRM') terpakai - Sama ada intipati kesalahan di bawah s. 16 (a)(A) Akta SPRM telah dibuktikan KETERANGAN: Sokongan - Keterangan sokongan bebas - Pertimbangan mahkamah - Kesalahan rasuah - Penemuan wang perangkap di lokasi tertuduh ditangkap - Sama ada penemuan wang perangkap di lokasi tertuduh ditangkap merupakan keterangan sokongan yang perlu dipertimbangkan - Sama ada penemuan wang perangkap daripada tertuduh memberi kesimpulan bahawa tertuduh menerima wang suapan daripada pemberinya Bagi pihak perayu 1 - Rasmadi Abdul Rasid; T/n Rasmadi & Company Bagi pihak responden - A Hafiizh Abu Bakar; Timbalan Pendakwa Raya, Suruhanjaya Pencegahan Rasuah Malaysia, Negeri Kedah/Perlis; Bahagian Perundangan Dan Pendakwaan, Suruhanjaya Pencegahan Rasuah Malaysia, SPRM Negeri Kedah
[2018] 1 LNS 2117	CHOONG SHIN CHEONG v. SURUHANJAYA SYARIKAT MALAYSIA; CHEW AH FOCK (INTERVENER) Where a dispute arises regarding the shareholding in a company, a liquidator should remain neutral and allow the shareholders to take the initiative to comply with the requirements of a Court Order. COMPANY LAW: Shares - Registration - Rectification - Order to rectify share register - Application by liquidator - Whether correction of share register of company would be of primary concern of liquidator in discharge of his duties - Whether liquidator should be right party to mount action - Whether liquidator should remain neutral - Whether action should have been taken by shareholders or members of Company - Whether there was a cause for rectification, or expunging - Companies Act 1965, s. 162 For the plaintiff - Sharmizah Hashim; M/s Fatimah Zahrah & Co For the defendant - Zuhairi; Suruhanjaya Syarikat Malaysia; Bahagian Perkhidmatan Perundangan For the intervener - Krishnan Narayanan Nair; M/s N Krishnan Nair & Co
[2018] 1 LNS 2118	ALDAR FOR CONSTRUCTION & ARCHITECTURE v. MAJLIS AGAMA ISLAM NEGERI JOHOR A party to a suit must be a recognised legal entity in order to have locus standi to sue or be sued. CIVIL PROCEDURE: Striking out - Action - Action premised on breach of contract to purchase a building - Locus standi - Dispute as to existence of plaintiff - Plaintiff a foreign company - Property in question located at Jordon - Jurisdictional issue - Property belongs to other persons - Whether manner of registration of plaintiff could be determined summarily - Whether there was any inconvenience caused to defendant for matter to be heard in Johor Bharu court - Whether laws of Jordan ought to apply - Whether plaintiff's claim obviously sustainable For the plaintiff - Yusfarizal Yusoff & Adam Luqman Amdan; M/s Yusfarizal, Aziz & Zaid For the defendant - Mohd Faizal Ahmad & Syahrill Anuar Harun; M/s Hazelin & Associates
[2018] 1 LNS 2119	UTHERABATHE MUNUSAMY v. SITHA ARUMUGAM Rules of Court and any Order made by Court must ipso facto be complied with and if not complied with, there must be good and valid reason in order to allow the Court to consider whether any forbearance or exercise of discretion ought to be applied. CIVIL PROCEDURE: Appeal - Record of appeal - Failure to file record of appeal within extended period - Absence of formal application for any further extension of time to file record of appeal - Exercise of Court's discretion - Whether appeal became incompetent - Whether there is a need to file formal application which would provide an avenue for materials to be placed before court - Whether materials had been placed before court to invite court's discretion to be exercised For the appellant - Badrol Hisham Mohamed Sani; M/s Azman Wan Helmi & Associates For the respondent - Marimuthu Veerasamy; M/s VM Muthu & Co

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CLJ 2020 Volume 6 (Part 1)

An unlicensed money-lending transaction camouflaged in a sale and purchase agreement is patently illegal, null and void, and unenforceable in law. The unusual features of such a sham commercial transaction, coupled with the unusual conduct of the parties not only militate against a genuine sale and purchase transaction but offend the Contracts Act 1950 and the protective provisions of the Moneylenders Act 1951.
Global Globe Property (Melawati) Sdn Bhd v. Jangka Prestasi Sdn Bhd [2020] 6 CLJ 1 [CA]

• SUBJECT
• CORAM
• COUNSEL

The identification of exhibits in a criminal trial ought to be done in open court and in any case cannot be done behind the back of the trial judge or in the absence of the accused or his counsel. Where therefore an accused was charged with drug trafficking under s. 39B of the Dangerous Drugs Act 1952, it was untenable of the prosecution to have requested an adjournment to enable it to identify the drugs, and thereafter had the offensive drugs identified by its witness in the absence of the judge, the accused and the counsel. Such a process is unknown and perverse to our criminal justice system, and potentially, may cause a serious break in the chain of evidence and render the prosecution's case fatally vitiated and flawed.
Melinda Stevenson v. PP [2020] 6 CLJ 34 [CA]

• SUBJECT
• CORAM
• COUNSEL

The presiding judge in a criminal trial, having taken a plea of not guilty from an accused person, ought to have recused himself from hearing the case if he has also taken a plea of guilty from the latter's co-accused or abettor. The recusal will ensure fairness to the accused and is in accord with the real danger of bias test; it also aptly echoes the postulate in Dato' Tan Heng Chew v. Tan Kim Hor & Another Appeal that the court should always maintain 'the highest standard of public confidence in the judiciary.'
Tengku Adnan Tengku Mansor v. PP [2020] 6 CLJ 47 [CA]

• SUBJECT
• CORAM
• COUNSEL

The Minister's decision to allow a housing developer's appeal for extension of time to deliver vacant possession is amenable to judicial review notwithstanding the provision in reg. 12 of the Housing Development (Control and Licensing) Regulations 1989 that such decision is 'final and should not be questioned in any court'. Regulation 12 and for that matter the Housing Development (Control and Licensing) Act 1966 cannot oust the court's judicial power as guaranteed by art. 121(1) of the Federal Constitution, and in seeking to do so, has breached the court's exclusive domain and altered the basic constitutional structure on the doctrine of separation of powers. The Minister, indeed, has no power under the 1989 Regulations to extend the statutory time period, and in any case, in deciding to enlarge time, has unlawfully deprived a house buyer of his fundamental right of access to justice. The Minister's decision is ultra vires and void and should be quashed by the court.
Alvin Leong Wai Kuan & Ors v. Menteri Kesejahteraan Bandar, Perumahan Dan Kerajaan Tempatan & Ors And Other Applications [2020] 6 CLJ 55 [HC]

• SUBJECT
• CORAM
• COUNSEL

A purchaser of property who has executed a sale and purchase agreement (SPA), paid the requisite stamp duty and submitted a valid Memorandum of Transfer in Form 14A but was unable to have the property transferred to it on account of a fraud committed on him by its solicitor is not entitled to claim for the refund of the duty thus paid if, after having sued both the vendor and the solicitor, he entered into a consent judgment with them and voided the SPA. Section 57(f)(i) of the Stamp Act 1949, which such a claim should fall under, envisages a situation where the instrument is void ab initio and not otherwise. The purchaser therefore is not entitled to a refund because, in the obtaining circumstances, it has executed a valid transfer of the said land and there was no issue of the said Form 14A being void ab initio. Likewise, there was no issue of the SPA being void ab initio, as it only became void not from the date of execution but from the subsequent date of the consent judgment.
Brownwood Sdn Bhd v. Lembaga Hasil Dalam Negeri & Anor  [2020] 6 CLJ 80 [HC]

• SUBJECT
• CORAM
• COUNSEL

In deciding on the allegations of minority oppression, the court will always distinguish between corporate wrong and personal wrong - grievance qua shareholder and personal grievance - taking into consideration the framework provided by the Singapore Court of Appeal landmark decision in Ho Yew Kong v. Sakae Holdings Ltd.
Choy Yuk Kong & Ors v. Landyork Farming Sdn Bhd & Ors [2020] 6 CLJ 92 [HC]

• SUBJECT
• CORAM
• COUNSEL

An employee who has been exculpated of misconduct in a domestic inquiry cannot be terminated by his employer by way of s. 14 of the Employment Act 1955. This is because the punishments as prescribed in the section may only be meted out if such inquiry has made a finding of misconduct against the employee, and also because an employer, or a company's management for that matter, cannot substitute its own opinion in place of the facts as found by the domestic inquiry. Terminating an employee in the face of such non-guilty finding is malicious and makes a mockery of the audi alteram partem rule, thereby turning the dismissal into one without just cause or excuse.
Pelabuhan Tanjung Pelepas Sdn Bhd v. Industrial Court, Malaysia & Anor [2020] 6 CLJ 111 [HC]

• SUBJECT
• CORAM
• COUNSEL

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CLJ Article(s)

1. EXCLUDING LIABILITY FOR MIS-DELIVERY AND NON-DELIVERY IN BILLS OF LADING:
   UNDER LAWS OF MALAYSIA, SINGAPORE AND ENGLAND & WALES ^{[Read excerpt]}
   by ARUN KASI* [2020] 6 CLJ(A) i

[2020] 6 CLJ(A) i



MALAYSIA

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EXCLUDING LIABILITY FOR MIS-DELIVERY AND NON-DELIVERY IN BILLS OF LADING:
UNDER LAWS OF MALAYSIA, SINGAPORE AND ENGLAND & WALES

by
ARUN KASI*

Abstract

The end obligation of a sea carrier is to deliver the cargo; ordinarily, at the destination port upon presentation of the bill of lading, a transferable contract. Clauses in the bill excluding liability for mis-delivery or non-delivery go to the core of the contract of carriage, as that will negative the end obligation and render the consideration given by the carrier illusory. They will have a great impact on international cargo trade, whereby goods are usually sold and purchased, not by physical transfer of the goods but by transfer of the bill of lading representing the goods while they are in transit. The Hague and Hague-Visby Rules which set the mandatory minimum threshold obligations of the carrier, that cannot be contractually ousted, do not include the obligation to deliver, hence the liberty to contract in respect of delivery obligation in the hands of the parties.

. . .

* © Arun Kasi, 2020. Advocate & Solicitor of High Court of Malaya; Fellow of Chartered Institute of Arbitrators, London.

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LNS Article(s)

1. A COLOSSAL CHANGE IN THE LEGAL POSITION OF FIXED TERM EMPLOYMENT CONTRACTS OF FOREIGNERS ^{[Read excerpt]}
   by John Mark* [2020] 1 LNS(A) lxx

[2020] 1 LNS(A) lxx



MALAYSIA

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A COLOSSAL CHANGE IN THE LEGAL POSITION OF
FIXED TERM EMPLOYMENT CONTRACTS OF FOREIGNERS

by
John Mark*

Introduction

Fixed term employment contracts are employment contracts for a specified duration for example for a year or two. Businesses commonly use a fixed term contract for seasonal or temporary work assignments or for a specific project. The Courts recognise such business needs for genuine fixed term contracts. In Han Chiang High School v. National Union of Teachers in Independent Schools the court observed:^[1]

“Such fixed term contracts for temporary on-off jobs are an important part of the range of employment relationship. Some such jobs are found in seasonal work, work to fill gaps caused by temporary absence of permanent staff who are on training, and the performance of specific tasks such as research.”

. . .

*LL.B (Hons), Industrial and Employment Law Practitioner.

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2. PRESIDENT'S MESSAGE
   CHANGES TO WIGS AND ROBING FOR ACT SOLICITORS* ^{[Read excerpt]}
   by Chris Donohue** [2020] 1 LNS(A) lxix

[2020] 1 LNS(A) lxix



AUSTRALIA

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PRESIDENT'S MESSAGE
CHANGES TO WIGS AND ROBING FOR ACT SOLICITORS*

by
Chris Donohue**

A question I am asked by my non-lawyer friends is why some lawyers sometimes wear robes and wigs when appearing in the Supreme Court. The answer to this question lies partly in history, and partly in the perceived necessity of appearing to be independent of the pressures and constraints of the non-lawyer world.

In September last year, the ACT Supreme Court’s Practice Direction on Robing^[1] was amended to change the circumstances when barristers are to robe and wig, and to prohibit solicitors (who are appearing as counsel) from robing at all, except in jury trials before the Full Supreme Court.

Prior to that change, solicitors and barristers in the ACT were equally obliged and entitled to robe when they were doing the same work — that is, when appearing as counsel in the Supreme Court.

. . .

*Published with kind permission of the Law Society of the Australian Capital Territory. See Ethos Autumn 2020, Issue 225.

**President, of the ACT Law Society

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