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Issue #30/2020 16 July 2020

New This Week Case(s) of the Week HAMIMAH IDRUSS v. PP [2020] 6 CLJ 407 Appeal Updates Appeal Updates Latest Cases Legal Network Series CLJ 2020 Volume 6 (Part 4) Articles LNS Article(s) Legislation Highlights Principal Acts Amending Acts PU(A) PU(B) Legislation Alert

HAMIMAH IDRUSS v. PP [2020] 6 CLJ 407
COURT OF APPEAL, PUTRAJAYA
YAACOB MD SAM JC; ZABARIAH MOHD YUSOF JCA; RAVINTHRAN PARAMAGURU JCA
[CRIMINAL APPEAL NO: W-09-80-03-2017]
02 MARCH 2020

CRIMINAL LAW: Money laundering - Elements of offence - Charges under s. 4(1) of Anti-Money Laundering Act 2001 - Elements of mens rea - Whether proven - Whether inferences drawn from evidence correct - Whether funds received by accused person constituted proceeds of unlawful activity - Whether accused person knowingly received part of proceeds of unlawful activity - Whether essential ingredients of offence proven

CRIMINAL PROCEDURE: Charge - Framing of - Accused person charged for abetting in commission of forgery - Whether charge failed to particularise manner of offence committed - Whether failure to specify exact limb of abetment in charge breached s. 154 of Criminal Procedure Code ('CPC') - Whether accused person misled in defence - Whether omission curable under s. 422 of CPC where no failure of justice occasioned - Whether charge defective

CRIMINAL PROCEDURE: Sentence - Appeal against sentence - Whether excessive - Charges under Anti-Money Laundering Act 2001 ('AMLA') - Whether amount of money involved and degree of culpability on part of accused adequately considered - Whether plea for binding over correctly rejected - Whether trial judge exceeded power in imposing pecuniary penalty under s. 55(2) of AMLA - Whether pecuniary provision applicable

EVIDENCE: Documentary evidence - Admissibility - Defects in documents that are subject matter of charges - Whether rendered documents incomplete or invalid - Whether 'actus reus' of predicate offence proved - Whether document must possess 'some' legal validity - Whether false document must be legally capable of affecting intended fraud

EVIDENCE: Corroboration - Accomplice - Evidence of accomplice - Whether accomplice competent witness - Whether safe to rely on evidence of accomplice - Whether evidence of accomplice amply corroborated by other evidence - Whether evidence of accomplice credible

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1. AR Lim Yoke Tiang v. Matrix Concepts (Central) Sdn Bhd & Another Appeal [2020] 1 LNS 35 (CA) affirming in part the High Court case of Matrix Concepts (Central) Sdn Bhd v. AR Lim Yoke Tiang [2018] 1 LNS 1628

2. Skyworld Development Sdn Bhd & Anor v. Skyworld Holdings Sdn Bhd & Ors [2020] 1 LNS 48 (CA) overruling the High Court case of Skyworld Development Sdn Bhd & Anor v. Skyworld Holdings Sdn Bhd & Ors [2019] 1 LNS 157

Legal Network Series

[2018] 1 LNS 474	AMM JOY (SUING AS CHAIRMAN COMMITTEE MEMBERS OF WAT BOONYARAM) v. CHUAN SENG SDN BHD 1. Where a loss of lawful use of land was caused by unlawful occupation by a trespasser, then the land owner is entitled to claim for damages in the form of rental or alternatively, a reasonable estimation of rental return. The loss as a result of unlawful occupation or trespass must be directly attributable and flow from the loss of lawful use of the land. The burden is on the land owner to prove damages. 2. The correct measurement of loss for trespass to land must take into account only the actual area affected, not the whole of the land, and whether the owner has any intention to sell or rent out the land. TORT: Trespass to land - Damages - Assessment of - Loss of lawful use of land - Whether unlawful occupation adversely affected intention and ability to let or lease land - Whether actual proof of loss required - Whether damages should be in form of rental and alternatively on a reasonable estimation of rental return - Whether loss must be directly attributable to loss of use of land - Whether damages should be paid for improper use of land - Whether burden to prove reasonable amount of loss is on owner TORT: Trespass to land - Damages - Assessment of - Measurement of loss - Absence of intention to sell or rent out land by owner - Whether measurement of loss must take into account actual area affected or the whole land For the appellant - Jeyasingam Balasingam, Kartikumar Seamreasan & Bun Liang Saw Ah Seng; M/s Ghazi & Lim For the respondent - Dhanaraj Vasudevan & Devandra Balasingam; M/s Kamil Hashim Raj & Lim
[2018] 1 LNS 650	LIEW KEE SIN v. PP The act of unlocking a bag using combination numbers shows that the accused had custody and control of the drugs in the bag. The omission of the arresting officer to mention this fact in the police report did not make the evidence of the said arresting officer incredulous or incapable of belief. CRIMINAL PROCEDURE: Appeal - Appeal against conviction - Trafficking of dangerous drugs - Possession - Presumption of knowledge - Accused was caught alone and red-handed with bag containing drugs - Accused unlocked bag using combination numbers - Whether omission of arresting officer to state this fact in police report disparaged prosecution's case - Whether defence of accused that bag belongs to a character suggested by accused acceptable - Whether drugs were in custody and control of accused - Whether accused had knowledge of contents of bag For the appellant - G Ravishankar; M/s R Shankar Gandhi & Assoc For the respondent - Norinna Bahadun, Deputy Public Prosecutor
[2018] 1 LNS 654	BEST RE (L) LIMITED v. CHINA PACIFIC PROPERTY INSURANCE CO LTD The manner of the defendant's request for supply of documentation and information for verification of settlement made by the plaintiff to insured persons are bona fide triable issues. Likewise, the plaintiff's reliance on an implied term and an alleged 'mutually accepted course of conduct' is a matter of evidentiary proof to be evaluated at a full trial. CIVIL PROCEDURE: Summary judgment - Insurance - Reinsurance agreements - Indemnity for claims settlement - Triable issues - Defendant refused to indemnify claims settlement as plaintiff refused to provide complete and relevant proof for verification of settlement made by plaintiff to insured persons under original policies - Plaintiff's claim was based on an implied term and an alleged mutually accepted course of conduct - Whether matter could only be properly examined and evaluated at a full trial - Whether request to verify settlements was relevant and consistent with terms of reinsurance agreements - Whether issues raised by defendant were bona fide For the appellant - Philip Teoh, Sreether Sundaram & Hafeez Johan; M/s Azmi & Associates For the respondent - M Nagarajah & Lena Chua; M/s Shook Lin & Bok
[2019] 1 LNS 301	MOHD ARIF FAIZAL OSMAN lwn. PP Pertimbangan positif perlu diberikan kepada tertuduh apabila tertuduh telah melakukan kesalahan pertama dan tertuduh insaf atas kesalahan tersebut. Hukuman penjara yang melampaui tempoh 30 tahun boleh memberi kesan ekonomi yang berpanjangan terhadap keluarga tertuduh. PROSEDUR JENAYAH: Rayuan - Rayuan terhadap hukuman - Hukuman penjara 34 tahun dan sebatan sebanyak 23 kali bagi kesalahan sumbang mahram dan kelakuan kelucahan melampau - Peringanan - Kesalahan pertama - Tertuduh merupakan penanggung kepada keluarga - Keinsafan - Sama ada pertimbangan positif perlu diberikan kepada tertuduh - Sama ada tertuduh wajar diberi peluang kedua Bagi pihak peguambela/perayu - Latifah Ariffin (YBGK); T/n Latifah Ariffin & Co Bagi pihak responden/pendakwaan - TPR Shaharaliza Ab Razak, Timbalan Pendakwaraya Negeri Kelantan; Pejabat Penasihat Undang-Undang Negeri Kelantan
[2019] 1 LNS 305	NAFISAH AHMAD lwn. MOHAMAD HAIZAT ZAINOL Sekatan kepentingan berkenaan larangan urusniaga ke atas tanah melainkan selepas mendapat kebenaran kerajaan negeri perlu dipatuhi sebelum perjanjian jual beli dimasuki pembeli. Justeru, pembeli perlu membuat carian persendirian mengikut peruntukan s. 384 Kanun Tanah Negara sebelum memasuki perjanjian jual beli. UNDANG-UNDANG TANAH: Jual beli tanah - Kesahihan - Kewujudan sekatan kepentingan - Sama ada plaintif perlu memperolehi kebenaran daripada pihak berkuasa negeri sebelum membuat sebarang urusniaga berkenaan tanah - Sama ada perjanjian jual beli adalah bercanggah dengan undang-undang - Sama ada pembeli menyedari sekatan kepentingan yang ada dalam geran hartanah KONTRAK: Kontrak yang tidak sah - Pampasan - Tuntutan pampasan ke atas perjanjian jual beli yang terbatal kerana tidak sah - Sama ada pampasan kepada pembeli perlu mengikut nilaian yang dilakukan oleh penilai kerajaan - Akta Kontrak 1950, s. 66 Bagi pihak plaintif - Ahmad; T/n Hajar Hamzah & Co Bagi pihak defendan - Nur Aqilah Basri; T/n Norali & Co

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CLJ 2020 Volume 6 (Part 4)

By virtue of s. 107 of the Penal Code, abetment as an offence manifests itself in three separate forms or limbs. This said, there is no duty on the prosecution to state the particular limb or to particularise the exact abetment in the charge. And even if there was such a legal requirement, the omission to do so will not be fatal if the evidence, including the accused's defence, showed that he was not in any way misled or prejudiced by the omission. Given that there was no such failure of justice here, the omission cannot offend s. 154 of the Criminal Procedure Code and is also curable under s. 422 thereof.
Hamimah Idruss v. PP [2020] 6 CLJ 407 [CA]

• SUBJECT
• CORAM
• COUNSEL

The application by the Government of Malaysia for an injunction to restrain the defendants heirs of the Sultan of Sulu from proceeding with an arbitration in the Superior Court of Justice in Madrid, Spain concerning a document called the Deed of Cession executed between the Sultan of Sulu and the Government of North Borneo in 1878, and the grant in perpetuity of territories of the former State of North Borneo or modern day Sabah, ought to be allowed as there is nothing in the Deed that could be construed as indicating an intention on the part of the signatories to refer their disputes to arbitration. There is also no valid legal basis for the referral of any such purported disputes to the Spanish arbitration, as the defendants' predecessors had, in 1939, moved the High Court of North Borneo at Sandakan to claim for their annual cession monies under the Deed thereby acknowledging and submitting to the jurisdiction of the High Court in North Borneo or Sabah. Malaysia, further, has never waived her Sovereign Immunity in favour of any foreign court or nation, and is therefore absolutely immune, under International Law, from the proceedings in Spain.
Government Of Malaysia v. Nurhima Kiram Fornan & Ors [2020] 6 CLJ 429 [HC]

• SUBJECT
• CORAM
• COUNSEL

An obstetrician and gynaecologist (OG), in handling the delivery of a baby, owes a duty of care to exercise due diligence, knowledge and skill in advising or administering treatment to the mother and baby, and may be in breach of such duty for acts or omissions which he could reasonably foresee would likely cause injury to either or both of them. An OG who is conducting a complicated delivery of a macrosomic baby is thus bound by duty to provide the mother with the necessary information as would enable her to make an informed decision as to her choice of delivery, and to advise her of the risk of shoulder dystocia in the vaginal delivery of such a baby, and, where such shoulder dystocia has actually occurred, to undertake and complete the McRoberts manoeuvre, apply the suprapubic pressure and conduct an episiotomy before pulling out the baby. Where these established clinical protocols have not been followed, and such failure or omission has caused the mother to suffer a perineum tear and the baby a brachial plexus injury, as happened in this case, the OG must be held to have breached the duty of care to both mother and baby, and be further liable in damages for negligence.
Gurisha Taranjeet Kaur & Anor v. Dr Premitha Damodaran & Anor [2020] 6 CLJ 446 [HC]

• SUBJECT
• CORAM
• COUNSEL

The role of the court in approving an application for a vesting order under s. 139 of the Capital Markets and Services Act 2007 is to ascertain the legality of the transaction, and not its fairness or commercial desirability; it is for the shareholders to assess its fairness and to approve the transaction accordingly. A breach of the duty to make full and fair disclosure, however, does not invalidate the transaction, but will render the relevant resolution ineffective; the practical consequence is that it would still be open to the shareholders to subsequently approve the transaction provided that there is adequate disclosure of material information at a subsequent general meeting of the company.
Mercury Securities Sdn Bhd & Anor v. Concrete Parade [2020] 6 CLJ 517 [HC]

• SUBJECT
• CORAM
• COUNSEL

The applicant, a company in the business of transporting waste products, did not require a license from the Forestry Department to transport wood waste on its vessel as the wood waste did not fall under the definition of 'forest produce' under s. 2(1) of the Forests Ordinance 2015. The respondents' seizure of the applicant's vessel was thus mala fide and an unfair and oppressive exercise of powers and was at the very least an error of law which was open to judicial review. Section 108 of the Forests Ordinance 2015 did not immunise the respondents from legal proceedings. The courts accordingly would grant an order of certiorari to quash the decisions and acts of the respondent with respect to the search and detention of the applicant's vessel and an order of mandamus to compel the respondents to discharge, revise and revoke the said decisions.
Tie Dee Kheng v. Unit Keselamatan Dan Penguatkuasaan Negeri & Ors [2020] 6 CLJ 546 [HC]

• SUBJECT
• CORAM
• COUNSEL

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LNS Article(s)

1. THE STRICT 60 DAYS, CAN EQUITY STRETCH IT?
   FILING REPRESENTATION FOR REINSTATEMENT ON TIME ^{[Read excerpt]}
   by JOHN MARK* [2020] 1 LNS(A) lxxiv

[2020] 1 LNS(A) lxxiv



MALAYSIA

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THE STRICT 60 DAYS, CAN EQUITY STRETCH IT?
FILING REPRESENTATION FOR REINSTATEMENT ON TIME

by
JOHN MARK*

Introduction

An employee who seeks to file a reinstatement claim with the Industrial Relations Department (IRD) has to do so within 60 days of the dismissal.

Section 20(1A) reads:

"The Director General shall not entertain any representations under subsection (1) unless such representation are filed within sixty days of the dismissal. Provided that where a workman is dismissed with notice he may file a representation at any time during the period of notice but not later than sixty days from the expiry thereof."

The employee must file the case on time which means there can be no premature filing or late filing. To emphasize the strictness of the time limit, the provision specifically states that the Director-General shall not entertain any representations unless such representations are filed within 60 days of the dismissal.

. . .

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

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2. THE POWER OF ATTORNEY: AN INTRODUCTION* ^{[Read excerpt]}
   by Andrew Das Solomon** [2020 1 LNS(A) lxxv

[2020 1 LNS(A) lxxv



MALAYSIA

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THE POWER OF ATTORNEY: AN INTRODUCTION*

by
Andrew Das Solomon**

Abstract

How do you prepare a Power of Attorney (PA)? Does a PA have to be registered? Must a PA be stamped? How do I know if a PA is valid...these are questions I regularly face from friends in practice; even from those who have completed considerable years in legal practice. This article attempts to answer some of these questions while providing a practical guide to the various matters to be considered when dealing with a PA.

After a brief background, the article looks at the Powers of Attorney Act which is the principal act relating to the PA. It then proceeds to take a step-by-step look at the various parts involved in preparing a PA (from taking the client's instructions right up to its revocation) with emphasis on related provisions of the Powers of Attorney Act and how they have been interpreted by the Courts. Where appropriate, suggestions on good practice has been added. The article ends with a cursory review of other legislation which has provisions relating to a PA. A checklist summarising the various steps and matters to be considered when preparing a PA is attached at the end for ease of future reference.

. . .

* The old adage states that 'every dark cloud has its silver lining'. This article is my 'silver lining' resulting from the dark cloud of the Covid-19 MCO lockdown period. Hopefully, it will be of assistance to fellow solicitors, specifically those who have just commenced practice.

Needless to say, this article is not the result of my own efforts. I had lots of advice and assistance. My sincere thanks go to Dato' Dr. Abd Shukor Ahmad, Advocate & Solicitor, for his guidance and advice and to Ms. Deepa Nanthini Sundaran, Advocate & Solicitor, for assisting me in research relating to this article. I remain solely responsible, however, for all errors or omissions. To my wife and children who allowed me to spend much of my time these few months on my laptop &ndash thank you for your patience and support.

** Advocate & Solicitor, High Court of Malaya.

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