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Issue #32/2020
30 July 2020
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New This Week
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BOULEVARD PLAZA SDN BHD v.
GAS DISTRICT COOLING (PUTRAJAYA) SDN BHD & ANOTHER APPEAL [2020] 7 CLJ 1
COURT OF APPEAL, PUTRAJAYA
VERNON ONG LAM KIAT JCA; ZABARIAH MOHD YUSOF JCA; YEW JEN KIE JCA
[CIVIL APPEALS NO: W-02(NCC)(A)-1117-05-2018 & W-02(IM)(NCC)-1126-05-2018]
14 OCTOBER 2019
The phrase "supplies including water, electricity, gas and telecommunications" appearing in s. 392(6) of the Companies Act 2016 ('CA') is not exhaustive and thus, chilled water falls within the category of 'supplies' in s. 392(6) of the CA as it serves as a public utility which is essential and beneficial to the public in Putrajaya. Pursuant to the objective of the introduction of the provisions of s. 392(6) & (7) of the CA, the supplier of chilled water could not insist on payment of pre-receivership charges as a condition for the continuous supply of chilled water to the company under receivership.
STATUTORY INTERPRETATION: Construction of statutes - Interpretation - Companies Act 2016, s. 392(6) & (7) - Whether chilled water fell within category of 'supplies' - Whether chilled water supply a public utility essential and beneficial to public - Whether supplier had monopolistic control over supply - Whether supplier could insist on payment of pre-receivership charges as condition for continuous chilled water supply
BALA SUBRAMANIYAM MOOKAPILLAI & ANOR v. TETUAN RAJ SELVA & CO [2020] 6 CLJ 721
HIGH COURT MALAYA, IPOH
ANSELM CHARLES FERNANDIS JC
[PETITION NO: AA-17D-02-12-2017]
10 MARCH 2020
1. In addition to issues of complexity and the value of any property in dispute, in awarding "getting up" fees the court may further consider the duration of representation by counsel and whether counsel had laid the basis for the eventual success of a case, although no longer acting for the client when the case went up on appeal.
2. Despite the delivery of a bill of cost after the statutory limitation period has set in, the acknowledgment by a client that payment of professional fees is due amounts to a fresh accrual of action, and thus, time begins to run when a petition for a bill of costs to be taxed is filed.
LEGAL PROFESSION: Bill of costs - Taxation - Appeal to set aside decision of Senior Assistant Registrar ('SAR') in awarding RM400,000 as fees after taxing - Whether decision based on correct principles - Whether amount reasonable considering complexity of matter and issues - Whether legal counsel represented party for number of years and laid basis for eventual success of case - Whether quantum of RM400,000 as 'getting up' fees justified - Whether decision of SAR affirmed
LIMITATION: Cause of action - Accrual of - Whether claim for legal fees time-barred by limitation - Whether bill of costs delivered beyond six years from date of cause of action - Whether clearly out of time - Whether time began to run when party petitioned for bill of costs to be taxed - Limitation Act 1953, ss. 6 & 26(2)
“I end this judgment with the hope that the Malay Reservation Enactment can be updated (if not reformed) so as to enable financing of the development of Malay holdings in the interest of - (1) their Malay owners in particular; and (2) the Malay community and the country as a whole.” – per Wong Kian Kheong J in Syed Shaharul Mohamed Nasir & Anor v. Pentadbir Tanah Daerah Kelang & Anor [2020] 5 CLJ 842; [2020] 1 LNS 317
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Jeffrey Tahil v. PP [2020] 1 LNS 56 (CA) affirming the High Court case of PP v. Jeffrey Tahil [Criminal Trial No: TWU-45-9/8-2013]
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Theow Say Kow @ Teoh Kiang Seng, Henry v. Graceful Frontier Sdn Bhd & Ors [2020] 1 LNS 52 (CA) overruling the High Court case of Theow Say Kow@Teoh Kiang Seng, Henry & Anor v. Teoh Kiang Hong & Ors [2013] 1 LNS 1383
Legal Network Series
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ROSAZIAL MUHAMAD v. RAJENDRAN RAMASAMY An award of RM35,000.00 for closed segmental fracture of the tibia and closed comminuted fracture of the proximal third right fibula with wasting of 2cm and RM4,000 for multiple scars is reasonable, being within the recommended range referred in medical reports and the compendium of personal injuries. DAMAGES: Appeal - Appeal against award - Tibia and fibula injuries with multiple scars - Fractures and wasting found on right thigh muscle at 2cm - Trial judge awarded RM35,000.00 for tibia and fibula with wasting of 2cm and award of RM4,000 for scars - Whether award granted was excessive DAMAGES: Appeal - Appeal against award - Loss of future earnings - Trial judge allowed loss of future earnings in absence of medical reports to state that plaintiff can no longer work in future - Whether loss of future earnings ought to be granted
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BASRI TAKADIR v. PP 1. Section 402B of the Criminal Procedure Code is intended to expedite the criminal trial process and thus it allows a written statement by any person to be admissible in evidence to the extent and effect of oral evidence, provided that the prosecution and the accused consent. The prosecution and defence may tender written statements inclusive of documents and exhibits related to it in evidence without the maker being called and tendered through any relevant witness of the parties during examination-in-chief. 2. Defence of provocation, sudden fight and self defence will have greater probative force if it is disclosed at the earliest stage from the time of arrest or at least during the course of trial as compared to being disclosed for the first time during the defence stage. CRIMINAL PROCEDURE: Statement - Written statement - Admissibility - Statement consented by prosecution and defence - Whether written statement by any person is admissible as evidence without maker being called - Criminal Procedure Code, s. 402B CRIMINAL PROCEDURE: Witness - Statement - Admissibility - Witness statements were not read aloud in open court - Court interpreter had translated and explained respective witness statements to witnesses in open court - Witness statements had been tendered and marked without any objections by defence - Whether there was necessity to read aloud witness statement in open court - Whether requirement of s. 402B Criminal Procedure Code has been complied with - Whether accused was deprived of a fair trial by inability to cross-examine witness CRIMINAL PROCEDURE: Defence - Grave and sudden provocation - Defence of provocation, sudden fight and self defence raised for first time during defence stage - Whether defence ought to be disclosed at earlier stage - Effect on probative impact
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SITI HAIDA ISMAIL v. SITI MAZNAH YAHYA & ORS A transfer is not made voluntarily when the transferor, at the time of execution of alleged instrument of transfer, was suffering dementia which incapacitated his mental state and ability to know the effect and consequences of his action. Such transfer of land through a void instrument, fraud and undue influence should be set aside in limme. LAND LAW: Transfer - Validity - Fraudulent transfer - Undue influence - Transfer of land in favour of caretaker on consideration of love and affection - Transferor was suffering deterioration in memory as a result of dementia at the time instrument of transfer was allegedly executed - Whether transferor had mental capacity to know effect and consequences of his action - Whether transferor had voluntarily transferred land - Whether transferee had taken advantage by directing transferor to affix his thumbprint - Whether transferee had taken advantage of mental capacity of transferor - Whether ownership of land was defeasible - Whether transfer ought to be set aside in limme
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KOK LIN RUBBER SDN BHD lwn. MIRZAWATI AHMAD & SATU LAGI Pertikaian berkenaan tujuan bayaran wang oleh plaintif kepada defendan sebagai pemegang amanah merupakan satu isu yang perlu dibicarakan. PROSEDUR SIVIL: Penghakiman terus - Isu-isu untuk dibicarakan - Tuntutan plaintif untuk wang pemegang amanah - Pertikaian berkenaan tujuan bayaran wang oleh plaintif kepada defendan sebagai pemegang amanah - Sama ada tujuan bayaran wang sebagai pemegang amanah adalah adalah isu yang perlu dibicarakan
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NAGAN KUMAR MAHADAVAN lwn. PP & SATU LAGI KES Kepentingan awam perlu dijadikan sebagai faktor utama dalam mempertimbangkan hukuman ke atas tertuduh yang melakukan kesalahan rompakan berkumpulan walaupun tertuduh telah mengaku bersalah. Hukuman yang berat wajar dikenakan supaya ia menjadi peringatan kepada bakal pesalah jenayah yang lain. PROSEDUR JENAYAH: Rayuan - Rayuan terhadap hukuman - Kesalahan rompakan berkumpulan - Pengakuan bersalah di akhir kes pendakwaan - Sama ada kesalahan merompak berkumpulan merupakan kesalahan yang serius - Sama ada mahkamah harus mengambil sikap tegas dalam menjatuhkan hukuman yang berat - Sama ada kekerapan berlakunya rompakan berkumpulan sewajarnya menjadikan kepentingan awam sebagai faktor utama dalam mempertimbangkan hukuman
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CLJ 2020 Volume 6 (Part 6)
An intention to kill may be inferred from the surrounding circumstances, including the weapon used, the nature of the injuries inflicted and the manner in which the injuries were inflicted. The burden of proving this element lies on the prosecution and must be proved beyond reasonable doubt either by direct evidence or may be inferred or concluded from the circumstantial evidence. A conviction based on circumstantial evidence is good in law if the cumulative effect of all evidence leads to an irresistible conclusion that it was the accused who committed the crime.
Mohd Imran Mohd Ramly & Anor v. PP And Another Appeal [2020] 6 CLJ 705 [CA]
CRIMINAL PROCEDURE: Appeal - Appeal against conviction and sentence - Murder of child - Accused persons sentenced to death - Whether there was common intention to commit murder - Whether there were direct/circumstantial evidence - Whether cumulative effect of all evidence led to irresistible conclusion that accused persons committed murder - Whether circumstantial evidence enough to convict accused persons - Whether conviction based on circumstantial evidence good in law - Whether conviction and sentence safe - Penal Code, ss. 34 & 302
CRIMINAL LAW: Penal Code - Section 302 - Murder - Murder of child - Whether there was intention to kill - Whether there were direct/circumstantial evidence - Whether cumulative effect of all evidence led to irresistible conclusion that accused persons committed murder - Whether circumstantial evidence enough to convict accused persons - Whether conviction based on circumstantial evidence good in law - Whether conviction safe
CRIMINAL LAW: Penal Code - Section 34 - Common intention - Murder of child - Whether common intention between accused persons to commit murder established - Whether conviction safe
EVIDENCE: Circumstantial evidence - Conviction - Murder of child - Conviction based on circumstantial evidence - Whether there was intention to kill - Whether there were direct/circumstantial evidence - Whether circumstantial evidence enough to convict accused persons - Whether conviction based on circumstantial evidence good in law - Whether cumulative effect of all evidence led to irresistible conclusion that accused persons committed murder - Penal Code, ss. 34 & 302
EVIDENCE: Adverse inference - Evidence Act 1950, s. 114(g) - Failure to call witness - Whether material witness - Whether detrimental to prosecution's case
ABDUL RAHMAN SEBLI JCA
ZABARIAH MOHD YUSOF JCA
HASNAH MOHAMMED HASHIM JCA
- For the 1st appellant - Nik Mohamed Ikhwan Nik Mahamud & Normah Mohd Desa; M/s Nik Ikhwan & Co
- For the 2nd appellant - Zamri Ibrahim; M/s Hanif & Co
- For the respondent - Mangaiarkarasi Krishnan; DPP
1. In addition to issues of complexity and the value of any property in dispute, in awarding "getting up" fees the court may further consider the duration of representation by counsel and whether counsel had laid the basis for the eventual success of a case, although no longer acting for the client when the case went up on appeal.
2. Despite the delivery of a bill of cost after the statutory limitation period has set in, the acknowledgment by a client that payment of professional fees is due amounts to a fresh accrual of action, and thus, time begins to run when a petition for a bill of costs to be taxed is filed.
Bala Subramaniyam Mookapillai & Anor v. Tetuan Raj Selva & Co [2020] 6 CLJ 721 [HC]
LEGAL PROFESSION: Bill of costs - Taxation - Appeal to set aside decision of Senior Assistant Registrar ('SAR') in awarding RM400,000 as fees after taxing - Whether decision based on correct principles - Whether amount reasonable considering complexity of matter and issues - Whether legal counsel represented party for number of years and laid basis for eventual success of case - Whether quantum of RM400,000 as 'getting up' fees justified - Whether decision of SAR affirmed
LIMITATION: Cause of action - Accrual of - Whether claim for legal fees time-barred by limitation - Whether bill of costs delivered beyond six years from date of cause of action - Whether clearly out of time - Whether time began to run when party petitioned for bill of costs to be taxed - Limitation Act 1953, ss. 6 & 26(2)
ANSELM CHARLES FERNANDIS JC
- For the appellants - Gavin Jayapal; M/s Gavin Jayapal
- For the respondent - Nasema Jalaludheen & Samanthan Su Xiu Ming; M/s Cheah Teh & Su
In an application, pursuant to s. 138(4) of the Evidence Act 1950 to recall a witness not cross-examined on documents fundamental to the case, the court will consider whether there are unforeseen circumstances to warrant allowing the application. In the absence of any tactical move or ulterior motive to repair the case by the applicant and where no prejudice is caused to the opposing party, the court may allow the application.
Muhammad Hafizam Nordin & Anor v. Muhammad [2020] 6 CLJ 731 [HC]
EVIDENCE: Witness - Recalling of - Application by defendants - Change of solicitors for defendants - Failure to cross-examine witness on fundamental documents - Application after plaintiffs closed case - Whether defendants had ulterior motive to repair case - Whether plaintiffs would be prejudiced - Overriding factor for court in exercise of discretion - Whether interest of justice in favour of allowing recalling of witnesses - Evidence Act 1950, s. 138(4)
EVROL MARIETTE PETERS JC
- For the appellants - JS Naicker; M/s Naicker & Assocs
- For the respondents - Teo Han Ley; M/s Teo & Assocs
1. Any amendment to a warrant of commitment based on a change of name by the accused after conviction and sentence, is not permissible as the matter is not only res judicata, the court is also functus officio. The conviction of the accused is not vitiated by a change in identity if he has been positively identified as the perpetrator of the crime throughout the criminal proceedings.
2. A writ of habeas corpus is inapplicable where an applicant is awaiting execution under a valid judgment.
PP v. Chandrasegaran Sunthiran & Another Application [2020] 6 CLJ 741 [HC]
CRIMINAL PROCEDURE: Warrant - Warrant of commitment - Application to amend - Accused convicted and sentence to death by High Court for offence of murder - Conviction and sentenced affirmed by apex court - Accused incarcerated at prison - Applicant changed name and obtained new identity card - Application by prosecution to change, alter and amend accused's name and identity card number on warrant of commitment - Whether ought to be allowed - Whether matter res judicata - Whether court functus officio
ADMINISTRATIVE LAW: Habeas corpus - Application for - Illegal detention - Applicant convicted and sentenced to death by High Court for offence of murder - Conviction and sentence affirmed by apex court - Applicant incarcerated at prison - Applicant changed name and obtained new identity card - Whether applicant accused arrested, investigated, charged, tried, convicted and sentenced at High Court - Whether applicant person identified in warrant of commitment - Whether detention at prison legal - Whether matter res judicata - Whether court functus officio - Whether application ought to be allowed - Criminal Procedure Code, ss. 278, 281(a) & 365
MUNIANDY KANNYAPPAN JC
- For the applicant - Zaid Abdul Malek & Melisa Sasidaran; M/s Daim and Gamany
- For the respondents - Muhammad Sinti; SFC
An application for forfeiture pursuant to s. 56(2) of the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001 cannot succeed if the subject matter or evidence relating to an offence of money laundering has been spent and is no longer in a bank account, either wholly or partly, as the aim of the section is to forfeit the subject matter of the offence and not just any property.
PP v. Sim Sai Hoon [2020] 6 CLJ 760 [HC]
CRIMINAL LAW: Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001 - Section 56(1) - Forfeiture of monies - Whether s. 56(2) provides for forfeiture of subject matter or evidence of offence of money laundering and not just any property - Whether monies seized were subject matter or evidence related to commission of offence of money laundering - Whether proceeds of unlawful activity had been spent before issuance of freezing order - Whether monies ought to be returned - Malaysian Anti-Corruption Commission Act 2009, s. 23(1)
AHMAD SHAHRIR MOHD SALLEH JC
- For the applicant - Mahadi Abdul Jumaat; DPP
- For the respondent - Cheow Wee & Ong Chia Wai; M/s Cheow Wee & Mai
A late application to amend after the close of pleadings will not succeed if there is no cogent explanation for the delay, particularly after numerous case managements, as it would be contrary to the just, expeditious and economical disposal of an action.
Tenaga Nasional Bhd v. Ice Man Sdn Bhd [2020] 6 CLJ 783 [HC]
CIVIL PROCEDURE: Pleadings - Statement of defence - Application to amend to mention third party not previously named in statement of defence - Whether third party known all along to defendant - Whether would change character of writ of action - Whether would cause prejudice to plaintiff - Whether defendant would be prejudiced if application disallowed - Whether sufficient explanation provided for delay - Whether proposed amendment would answer defendant's claim - Whether application bona fide
AWANG ARMADAJAYA AWANG MAHMUD JC
- For the plaintiff - Amnah Ismail; M/s Othman Hashim & Co
- For the defendant - Lim Yew Yi; M/s Kerk & Partners
1. Section 4(2) of the Valuers, Appraisers, Estate Agents and Property Managers Act 1981 consist of three parts. The use of the mandatory term 'shall' in the first part by Parliament and its employment of the discretionary word 'may' in the second and third parts clearly indicates Parliament's intention to distinguish between the mandatory first part on the one hand and the directory second and third parts on the other hand.
2. A local authority established under the Local Government Act 1976 ('LGA') has no duty under the second part of s. 4(2) of the Valuers, Appraisers, Estate Agents and Property Managers Act 1981 to obtain the Director-General's ('DG') valuation of the 'annual value' of a land's owner land within the meaning of the first limb. The court could not draw an adverse inference under s. 114(g) of the Evidence Act 1950 against the respondent for not obtaining the DG's valuation of the annual value of the land.
3. A local authority has a statutory duty under the LGA to collect rates from a land owner and the owner has a statutory duty under the LGA to pay rates to the local authority. The LGA does not provide that the local authority could only charge rates on the land owner when the local authority has provided a particular service, facility or amenity to the land owner and/or the land.
United Plantations Bhd v. Majlis Daerah Sabak Bernam [2020] 6 CLJ 801 [HC]
LOCAL GOVERNMENT: Local authority - Local authority area - Revised valuation of land - Dispute on annual value and rate applicable to land - Part of definition of 'annual value' in s. 2 of Local Government Act 1976 applied to land - Whether local authority could charge any rate on land without providing any specific service, facility or amenity to land - Whether local authority misused Local Government Act 1976 to commit fraud on landowner - Whether court could make consequential order for local authority to refund rates paid by landowner with interest - Whether revised valuation list lawful and valid
STATUTORY INTERPRETATION: Valuers, Appraisers, Estate Agents and Property Managers Act 1981 - Section 4(2) - 'shall' and 'may' - Whether wholly mandatory
WONG KIAN KHEONG J
- For the appellant - Anand Raj, Foong Pui Chi & Abhilaash Subramaniam; M/s Shearn Delamore & Co
- For the respondent - Anandan P Thatchanamoorthy & Farah Nur Atiqah Bahari; M/s Nazrin Nasir T Anand & Co
CLJ 2020 Volume 7 (Part 1)
The phrase "supplies including water, electricity, gas and telecommunications" appearing in s. 392(6) of the Companies Act 2016 ('CA') is not exhaustive and thus, chilled water falls within the category of 'supplies' in s. 392(6) of the CA as it serves as a public utility which is essential and beneficial to the public in Putrajaya. Pursuant to the objective of the introduction of the provisions of s. 392(6) & (7) of the CA, the supplier of chilled water could not insist on payment of pre-receivership charges as a condition for the continuous supply of chilled water to the company under receivership.
Boulevard Plaza Sdn Bhd v. Gas District Cooling (Putrajaya) Sdn Bhd & Another Appeal [2020] 7 CLJ 1 [CA]
STATUTORY INTERPRETATION: Construction of statutes - Interpretation - Companies Act 2016, s. 392(6) & (7) - Whether chilled water fell within category of 'supplies' - Whether chilled water supply a public utility essential and beneficial to public - Whether supplier had monopolistic control over supply - Whether supplier could insist on payment of pre-receivership charges as condition for continuous chilled water supply
VERNON ONG LAM KIAT JCA
ZABARIAH MOHD YUSOF JCA
YEW JEN KIE JCA
- For the appellants - Kelvin Seet Wan Nam & Lim Lay Yee; M/s Chooi & Company + Cheang & Ariff
- For the respondents - Natalia Izra Nasaruddin & Ng Ying Ci; M/s Zul Rafique & Partners
1. When two agreements are simultaneously executed, they are connected to each other and they form a single transaction. Reference should be made to both to ascertain the intention of the parties in their bargains.
2. A party to a contract must not be permitted to put an end to a contract by taking advantage of its own wrong for its inability to ensure the procurement of a condition that is contingent to the contract.
Forest Steel Sdn Bhd v. Iconic Gateway Sdn Bhd & Anor And Another Appeal [2020] 7 CLJ 19 [CA]
CONTRACT: Agreement - Termination - Extraction of natural resources - Parties entered into bauxite sale and purchase contract pending approval of proprietary mining licence by State Authority - No licence to mine bauxite land - Approvals came through after works started with condition for payment for issuance of licence - Appointed miner advanced payments for licence - Contract to mine terminated with immediate effect on grounds that miner failed to begin first monthly order - Whether mining of land contingent upon issuance of proprietary mining licence - Whether responsibility to obtain licence fell upon miner's shoulders - Whether termination valid and bona fide - Whether order of specific performance of contract ought to be granted
BADARIAH SAHAMID JCA
ZABARIAH MOHD YUSOF JCA
NOR BEE ARIFFIN JCA
(Civil Appeal No: C-02(IM)(NCVC)-1348-07-2017)
- For the appellant - HY Lee, Joseph Ting & Tan Chun Ming; M/s Joseph Ting & Co
- For the respondent - Ong Siew Wan; M/s Andrew-David Wong & Ong
(Civil Appeal No: C-02(IM)(NCVC)-1349-07-2017
- For the appellant - Ong Siew Wan; M/s Andrew-David Wong & Ong
- For the respondent - HY Lee, Joseph Ting & Tan Chun Ming; M/s Joseph Ting & Co
Where there is direct eyewitness testimony coupled with circumstantial evidence before the court to prove that the accused was at the scene of the crime and had committed the crime, the failure to tender a identification parade report and a CCTV recording is not fatal to the prosecution's case, more so when still images of the CCTV recording are made available.
Koong Swee Kwan v. PP [2020] 7 CLJ 67 [CA]
CRIMINAL LAW: Penal Code - Section 302 - Murder - Accused charged for offence of murder - Eyewitnesses testified seeing accused shooting victims - Circumstantial evidence put accused at scene of crime - Consideration of quality of dock identification - Omission to tender CCTV recording - Whether caused gap in prosecution's case - Prima facie case - Whether established - Whether defence afterthought, bare denial and concoction
CRIMINAL LAW: Penal Code - Section 307(1) - Attempted murder - Accused convicted for offence of attempted murder - Eyewitnesses testified seeing accused shooting victims - Circumstantial evidence put accused at scene of crime - Consideration of quality of dock identification - Omission to tender CCTV recording - Whether caused gap in prosecution's case - Prima facie case - Whether established - Whether defence afterthought, bare denial and concoction - Whether conviction of accused safe
CRIMINAL PROCEDURE: Sentence - Appeal against conviction and sentence - Accused convicted for offences of murder and attempted murder - Eyewitnesses testified seeing accused shooting victims - Circumstantial evidence put accused at scene of crime - Consideration of quality of dock identification - Omission to tender CCTV recording - Whether caused gap in prosecution's case - Prima facie case - Whether established - Whether defence afterthought, bare denial and a concoction - Whether conviction of accused safe - Penal Code, ss. 302 & 307(1)
YAACOB MD SAM JCA
ZABARIAH MOHD YUSOF JCA
RAVINTHRAN PARAMAGURU JCA
- For the appellant - Hisyam Teh Poh Teik; M/s Teh Poh Teik & Co
- For the respondent - Umar Saifuddin Jaafar & Tetralina Ahmed Fauzi; DPP
1. A company cannot be wound up under s. 465(1)(j) of the Companies Act 2016 for being involved in money lending as the definition of "licensed business" under both the Financial Services Act 2013 and the Islamic Financial Services Act 2013 does not include money lending under the Moneylenders Act 1951.
2. The time taken to apply for the winding up is an important consideration in deciding whether it is just and equitable for the petition to be allowed.
Litar Sistem Adilkap Sdn Bhd v. Lee Teak Hock & Anor [2020] 7 CLJ 84 [CA]
COMPANY LAW: Winding up - Appeal against - Whether company carried out moneylending business without being duly licensed - Whether directors of company acted in directors' own interest rather than in interests of members - Whether there was contravention of ss. 465(1)(j) & 465(1)(f) of Companies Act 2016 - Whether just and equitable for company to be wound up pursuant to s. 465(1)(h) of Companies Act 2016
STATUTORY INTERPRETATION: Construction of statute - Interpretation - 'licensed business' - Whether definition of 'licensed business' includes moneylending under Moneylenders Act 1951 - Whether winding up of company could be premised on s. 465(1)(j) of Companies Act 2016 - Financial Services Act 2013, s. 2 - Islamic Financial Services Act 2013, s. 2
MARY LIM JCA
HAS ZANAH MEHAT JCA
ABU BAKAR JAIS JCA
- For the appellants - Wong Hin Loong, James Huntzen Ong & Chun Chee Chong; M/s C C Chun & Co
- For the respondent - Amir Faliq, Syahidah Ismail & Naim Kamaruddin; M/s Amirfaliq & Syahidah
1. It is in order for a local authority to exercise its discretion to revoke a factory's temporary licence under ss. 86(a) and 87(1) of the Street, Drainage and Building Act 1974 ("SDBA") where it is acting to safeguard public health, safety and the environment, more so, when there is urgency due to the adverse effect of an accident.
2. Where a building is developed without planning permission and in breach of its designated land use, the local authority is empowered under s. 27(8) of the Town and Country Planning Act 1976 to issue Form D to require restoration of the land to its original condition which cannot be challenged on the ground that the landowner or applicant is entitled to be heard prior to the issuance thereof.
Everest Aisvaram Sdn Bhd v. Majlis Bandaraya Shah Alam [2020] 7 CLJ 96 [HC]
ADMINISTRATIVE LAW: Judicial review - Application for - Reliefs - Local authority made decision to revoke factory's temporary license and to reject company's appeal to continue operations due to leakage of ammonia gas causing deaths of workers - Whether local authority exercised discretionary power lawfully - Whether there was procedural impropriety in respect of local authority's decisions and in issuing Form D - Whether local authority's decisions and issuance of Form D rational and reasonable - Whether local authority acted mala fide - Whether court ought to exercise discretion in granting reliefs and orders - Whether local authority obliged to pay damages to company - Street, Drainage and Building Act 1974, ss. 3, 86(a), 87(1) - Local Government Act 1976, ss. 2, 3, 80, 81(a), 82(1), 101(v) - Town and Country Planning Act 1976, ss. 19(1), 26(1)(b), 27(8)
LOCAL GOVERNMENT: License - Temporary license - Local authority made decision to revoke factory's temporary license and to reject company's appeal to continue operations due to leakage of ammonia gas causing deaths of workers - Whether local authority exercised its discretionary power lawfully - Whether there was procedural impropriety in respect of local authority's decisions and in issuing Form D - Whether local authority's decisions and issuance of Form D rational and reasonable - Whether local authority acted mala fide - Whether court ought to exercise discretion in granting orders - Whether local authority obliged to pay damages to company - Street, Drainage and Building Act 1974, ss. 3, 86(a), 87(1) - Local Government Act 1976, ss. 2, 3, 80, 81(a), 82(1), 101(v) - Town and Country Planning Act 1976, ss. 19(1), 26(1)(b), 27(8)
WONG KIAN KHEONG J
- For the applicant - Ramesh Supramaniam; M/s Chambers of Ramesh
- For the respondent - Siti Maspuah Maulan & Norazalina Hairuddin; M/s Maulan & Co
The court may make an order for appraisement and sale of a vessel pendente lite if no security has been offered by the ship owner. As the claimant in an action arising out of a collision incident, a claimant is entitled to security for its claim, according to its reasonably arguable best case together with interests and costs for its claim.
The Owners And/Or The Demised Charterers Of The Ship Or Vessel ‘Winning Loyalty’ v. The Owners And/Or The Demised Charterers Of The Property Or Ship Or Vessel ‘Shi Pu 1’ (Previously Known As ‘Jing Hui 2’) [2020] 7 CLJ 126 [HC]
MARITIME LAW: Action in rem - Arrest of vessel - Application for sale of vessel pendente lite - Arrest of vessel following claim for loss and damage arising from collision between vessels - Application for appraisement and sale by private treaty - Whether there was good reason for court to make order for appraisement and sale of vessel pendente lite - Whether there was any alternative security to obtain vessel's release - Whether application ought to be allowed
ATAN MUSTAFFA YUSSOF AHMAD JC
- For the plaintiff - Mathew Kurien & Aaron Siva; M/s Sativale Mathew Arun
- For the defendant - Muhammad Amir Basaruddin; M/s KK Lim
CLJ Article(s)
A COLOSSAL CHANGE IN THE LEGAL POSITION OF FIXED TERM EMPLOYMENT
CONTRACTS OF FOREIGNERS [Read excerpt]
by JOHN MARK* [2020] 6 CLJ(A) xxxixCOVID-19: MALAYSIAN ADMIRALTY COURT'S PERSPECTIVE [Read excerpt]
by MATHEW KURIEN* [2020] 7 CLJ(A) i
LNS Article(s)
IR GLOBAL
CRISIS MANAGEMENT: SURVIVING AND THRIVING IN A POST-PANDEMIC WORLD
As professional services firms and their clients emerge from the Covid-19 crisis, how will businesses adapt to the next normal? IR Global members tell all* [Read excerpt]
by Ashleigh Teo Caiying** [2020] 1 LNS(A) lxxixPROTECTING THE ENVIRONMENT AND FOSTERING FINANCIAL FAIRNESS — RECOVERING FROM THE 19/20 BUSHFIRES* [Read excerpt]
by Natalie Vella[i] Meghan Malone[ii] Angela Lauman[iii] [2020] 1 LNS(A) lxxviii
Principal Acts
| Number | Title | In force from | Repealing |
| ACT 827 | Currency Act 2020 | Not Yet In Force | - |
| ACT 826 | Food Donors Protection Act 2020 | 31 March 2020 [PU(B) 166/2020] | - |
| 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) 215/2020 | Offences Relating To Awards (Amendment Of First Schedule) Order 2020 | 28 July 2020 | 29 July 2020 | ACT 787 |
| PU(A) 213/2020 | Wildlife Conservation (Hunting Prohibited Areas) (Amendment) Order 2020 | 27 July 2020 | 1 August 2020 | PU(A) 364/2013 |
| PU(A) 212/2020 | Prevention And Control Of Infectious Diseases (Compounding Of Offences) (Amendment) (No. 8) Regulations 2020 | 24 July 2020 | 24 July 2020 | PU(A) 327/1993 |
| PU(A) 211/2020 | Prevention And Control Of Infectious Diseases (Medical Attendance And Maintenance Of Person Removed To Quarantine Station) Regulations 2020 | 24 July 2020 | 24 July 2020 | ACT 342 |
| PU(A) 210/2020 | Federal Roads (West Malaysia) (Amendment) (No. 5) Order 2020 | 24 July 2020 | 27 July 2020 | PU(A) 401/1989 |
PU(B)
| Number | Title | Date of Publication | In force from | Principal/ Amending Act No |
| PU(B) 341/2020 | Appointment And Revocation Of Appointment Of A Member Of The Competition Commission | 27 July 2020 | 1 June 2020 to 31 May 2023 | ACT 713 |
| PU(B) 340/2020 | Notification Under Subregulation 3(3) For The Purpose Of By-Election For The Seat Of The State Assembly N.58 Slim In The State Of Perak | 23 July 2020 | Specified in column (2) of the Schedule | PU(A) 185/2003 |
| PU(B) 339/2020 | Notification Under Paragraph 3(1)(e) For The Purpose Of By-Election For The Seat Of The State Assembly N.58 Slim In The State Of Perak | 23 July 2020 | 24 July 2020 | PU(A) 185/2003 |
| PU(B) 338/2020 | Notice To Hold A By-Election Of A Member Of The Legislative Assembly Of The State Of Perak For The Constituency Of N.58 Slim | 23 July 2020 | 24 July 2020 | PU(A) 386/1981 |
| PU(B) 337/2020 | Determination Of Electoral Roll For The By-Election Of N.58 Slim | 23 July 2020 | 24 July 2020 | PU(A) 293/2002 |
Legislation Alert
Updated
| Act/Principal No. | Title | Amended by | In force from | Section amended |
| PU(A) 364/2013 | Wildlife Conservation (Hunting Prohibited Areas) Order 2013 | PU(A) 213/2020 | 1 August 2020 | Paragraph 2 |
| PU(A) 327/1993 | Peraturan-Peraturan Pencegahan Dan Pengawalan Penyakit Berjangkit (Pengkompaunan Kesalahan-Kesalahan) 1993 | PU(A) 212/2020 | 24 Julai 2020 | Jadual Pertama |
| PU(A) 437/1985 | Peraturan-Peraturan Makanan 1985 | PU(A) 208/2020 | 22 Julai 2020 | Peraturan 41 dan Jadual Keenam Belas |
| PU(A) 327/1993 | Prevention and Control of Infectious Diseases (Compounding of Offences) Regulations 1993 | PU(A) 212/2020 | 24 July 2020 | First Schedule |
| PU(A) 181/2020 | Prevention and Control of Infectious Diseases (Measures Within Infected Local Areas) (No. 7) Regulations 2020 | PU(A) 203/2020 | 15 July 2020 | Schedule |
Revoked
| Act/Principal No. | Title | Revoked by | In force from |
| PU(A) 251/2006 | Entertainments Duty (Exemption) (No. 24) Order 2006 | PU(A) 204/2020 | 1 August 2020 |
| PU(A) 286/2015 | Customs Duties (Goods Under the Framework Agreement on Comprehensive Economic Co-Operation Among the Governments of the Member Countries of the Association of Southeast Asian Nations and the Republic of Korea) (ASEAN Harmonised Tariff Nomenclature) Order 2015 | PU(A) 202/2020 | 1 August 2020 |
| PU(A) 84/2020 | Ministers of the Federal Government (No. 2) Order 2020 | PU(A) 201/2020 | See paragraph 1(2) of this Order |
| PU(A) 476/2008 | Customs Duties (Goods Under Agreement on Comprehensive Economic Partnership Among Member States of the ASEAN and Japan) Order 2008 [Revoked By PU(A) 191/2020] | PU(A) 191/2020 | 1 July 2020 |
| PU(B) 112/2019 | Appointment of Member of the Authority | PU(B) 279/2020 | 1 June 2020 to 31 May 2022 |