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Issue #33/2020 06 August 2020

New This Week Case(s) of the Week CHIN JHIN THIEN & ANOR v. CHIN HUAT YEAN & ANOR [2020] 7 CLJ 137 YUE CHI KIN v. PP [2020] 7 CLJ 224 THE UNITED STATES OF AMERICA v. MENTERI SUMBER MANUSIA MALAYSIA & ORS [2020] 7 CLJ 210 Appeal Updates Appeal Updates Latest Cases Legal Network Series CLJ 2020 Volume 7 (Part 2) Articles CLJ Article(s) LNS Article(s) Legislation Highlights Principal Acts Amending Acts PU(A) PU(B) Legislation Alert

CHIN JHIN THIEN & ANOR v. CHIN HUAT YEAN & ANOR [2020] 7 CLJ 137
FEDERAL COURT, PUTRAJAYA
MOHD ZAWAWI SALLEH FCJ; IDRUS HARUN FCJ; NALLINI PATHMANATHAN FCJ;
ZALEHA YUSOF FCJ; HASNAH MOHAMMED HASHIM FCJ
[CIVIL APPEAL NO: 02(f)-29-04-2019(P)]
07 JULY 2020
[2020] CLJ (JT4)

SUCCESSION: Probate - Will - Validity - Allegation that will made was secret trust - Whether testator had testamentary capacity to make will before death - Whether requirements for formality of valid will satisfied - Whether will a secret trust - Whether will contradictory to Wills Act 1959 and/or against public policy - Whether will valid and ought to be given effect

TRUSTS: Secret trust - Will - Allegation that will made was secret trust - Whether requirements for formality of valid will satisfied - Whether will a secret trust - Whether concept of secret trust applicable to Malaysia - Whether secret trust abrogated in Malaysia - Whether secret trust applicable in cases involving issue of testamentary capacity of testator - Whether secret trust contradictory to Wills Act 1959 and/or against public policy

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YUE CHI KIN v. PP [2020] 7 CLJ 224
HIGH COURT MALAYA, KUALA LUMPUR
MOHD NAZLAN GHAZALI J
[CRIMINAL APPLICATION NO: WA-42(S)-137-12-2015]
20 MAY 2019

CRIMINAL PROCEDURE: Charge - Defective charge - Bahasa Malaysia ('BM') version of charge - Whether pre-requisite to prosecution - Whether BM version substantially different from statute - Whether curable - Whether fatal to conviction - Criminal Procedure Code, s. 156 - Securities Industry Act 1983, s. 122B

CRIMINAL PROCEDURE: Appeal - Appeal against conviction and sentence - Charge under s. 122B of Securities Industry Act 1983 for abetment - Defective charge - Whether rendered offence unknown under law - Absence of requisite mens rea of principle offence - Whether charge of abetment sustainable - Whether there was sufficient judicial assessment of fact and evidence by trial judge - Whether reference to irrelevant legislation led to substantial miscarriage of justice

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THE UNITED STATES OF AMERICA v. MENTERI SUMBER MANUSIA MALAYSIA & ORS [2020] 7 CLJ 210
HIGH COURT MALAYA, KUALA LUMPUR
NORDIN HASSAN J
[JUDICIAL REVIEW NO: WA-25-342-07-2019]
08 JANUARY 2020

ADMINISTRATIVE LAW: Judicial review - Exercise of discretion - Minister referred employee's representation to Industrial Court - Employee dismissed from employment as guard at United States Embassy - Whether embassy immune from jurisdiction of Industrial Court - Whether Minister has wide discretionary power under s. 20(3) of the Industrial Relations Act 1967 to resolve issue of sovereign jurisdiction - Whether representation frivolous and vexatious - Industrial Relations Act 1967, s. 20

LABOUR LAW: Jurisdiction - Industrial Court - Employee dismissed from employment as guard at United States Embassy - Minister referred employee's representation to Industrial Court - Whether embassy immune from jurisdiction of Industrial Court - Test - Whether act done by state in exercise of sovereign authority or act of private nature - Whether employee was performing governmental and sovereign functions - Whether Minister erred in referring representation to Industrial Court - Industrial Relations Act 1967, s. 20

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1. Ogugua Chibuzo Marcellus v. PP [2019] 1 LNS 574 (CA) affirming the High Court case of PP lwn. Ogugua Chibuzo Marcellus & Yang Lain [2017] 1 LNS 1297

2. Pendakwa Raya lwn. Mohd Zainal Shamsudin [2019] 1 LNS 1553 (CA) mengesahkan kes Mahkamah Tinggi Pendakwa Raya lwn. Mohd Zainal Shamsudin [Perbicaraan Jenayah No: TA-45SOM-1-04/2018]

Legal Network Series

[2018] 1 LNS 2	MUNIANDY S SUBRAMANIAM v. PP The accused had actual or mens rea possession of drugs found in a condominium although the accused was arrested together with other individuals present in the said condominium during the raid. The lack of finger print or DNA evidence would not impact the finding that the accused had sole custody and control of the drugs in the condominium occupied by the accused. CRIMINAL LAW: Dangerous drugs - Trafficking - Mens rea possession - Drugs were found during raid in a condominium occupied by accused - Two other individuals present during raid - Keys to the condominium found in possession of accused - Whether accused had sole custody and control of drugs - Whether accused had actual possession of drugs - Whether lack of finger print or DNA evidence would affect findings that accused had sole custody and control of drugs For the appellant - Rajit Singh; M/s Rajit Gill & Co For the respondent - Aslinda Ahad; DPP
[2018] 1 LNS 1080	MORTEZA FEIZI SATAR v. PP & ANOTHER APPEAL The doctrine of wilful blindness should be considered before deciding on the defence of innocent carrier without knowledge. Defence of innocent carrier is not available as the accused had deliberately refused to know the true and actual contents of girdles given by a total stranger to be worn by him. CRIMINAL PROCEDURE: Appeal - Appeal against acquittal and discharge - Appeal by prosecution - Offence of trafficking dangerous drugs - Trial judge accepted defence of innocent carrier - Trial judge failed to consider doctrine of wilful blindness before deciding that accused was an innocent carrier without knowledge - Whether trial judge fell into error - Whether trial judge misdirected himself in doubting proof of elements of possession and trafficking at defence stage CRIMINAL PROCEDURE: Defence - Innocent career - Wilful blindness - Drugs found in abdominal girdle worn by accused - Accused alleged girdle given by a total stranger whom he met at the airport - Accused deliberately did not want to know true and actual contents of girdles - Whether accused had ample time and opportunity to check and examine girdle - Whether a reasonable person would have been suspicious regarding contents of girdle - Whether accused was guilty of wilful blindness EVIDENCE: Conduct - Conduct of accused - Offence of trafficking of dangerous drugs - Accused looked frightened during inspection - Accused deliberately refused to make further inquiries in order to avoid confirming actual situation - Whether conduct of accused led to conclusion that accused knew of existence of drugs - Evidence act 1950, s. 8 For the appellant - Zaki Asyraf Zubir & Jasmee Hameeza Jaafar; Deputy Public Prosecutors, Attorney General's Chambers For the respondent - Azamuddin Abd Aziz; M/s Azamuddin & Co
[2018] 1 LNS 1083	DR MILTON LUM SIEW WAH v. MALAYSIAN MEDICAL COUNCIL & ANOR; DR LOURDES DAVA RAJ CURUZ DURAI RAJ (PROPOSED INTERVENER) An application to intervene in proceedings before the Court of Appeal must be made with reasonable promptitude before an order of Court is perfected and the Court is functus officio. Hence, an application to intervene in a proceeding pursuant to O. 15 r. 6(2)(b)(ii) of the Rules of Court 2012 should be filed when the Court of Appeal proceeding is still pending. CIVIL PROCEDURE: Parties - Intervention - Application to intervene in proceedings at Court of Appeal stage - Proposed intervener intending to set aside order of Court of Appeal - Application filed two years after appeal was disposed of - Whether an application to intervene could be filed after appeal proceedings have ended - Whether application was made with reasonable promptitude - Whether applicant can only be added as a party before order of court is perfected and whilst court was not functus officio - Whether matter ought to be further relitigated WORDS AND PHRASES: 'at any stage of proceedings' - Meaning of - Rules of Court 2012, O. 15 r. 6(2)(b)(ii) - Whether means a proceeding pending - Whether application to intervene should be filed when proceeding pending in Court For the appellant - Anit Kaur Randhawa; M/s Asbir Hira Singh & Co For the respondent - Gurdev Singh Bal; M/s Irmohizam Gurdev & Co For the proposed intervener - Lambert Rasa-Ratnam, G Vijay Kumar & Chan Mun Yew; M/s Lee Hishamuddin Allen & Gledhill
[2019] 1 LNS 195	KALEETHUKHAN OTHMAN GANY & YANG LAIN lwn. INCREDIBLE FORCE SDN BHD & YANG LAIN 1. Representasi salah atau representasi frod jaminan "profit sharing" melalui skim pembelian ikan Arowana adalah tidak dibuktikan apabila pembeli-pembeli telah berdiam diri untuk tempoh yang lama setelah tidak memperolehi pulangan keuntungan. 2. Tadbir pemerbadanan syarikat tidak wajar disingkap apabila tidak ada sebarang keterangan yang membuktikan pengarah-pengarah telah mempergunakan syarikat untuk manfaat secara peribadi. KONTRAK: Representasi salah - Frod - Dorongan untuk memasuki skim pembelian ikan Arowana atas representasi jaminan "profit sharing" - Pembeli-pembeli tidak memperolehi pulangan keuntungan dan berdiam diri selama 3 tahun - Pembeli-pembeli pernah mendapat habuan daripada penjualan anak-anak ikan Arowana - Sama ada wujud sebarang representasi salah dan representasi frod dilakukan oleh defendan ke atas plaintif-plaintif UNDANG-UNDANG SYARIKAT: Entiti perundangan yang berasingan - Penyingkapan tabir pemerbadanan - Tuntutan terhadap pengarah-pengarah Syarikat - Kausa tindakan berasaskan representasi salah dan frod - Sama ada pengarah-pengarah telah membuat representasi salah secara peribadi - Sama ada wujud fakta yang mewajarkan tabir pemerbadanan disingkap - Sama ada pengarah-pengarah telah mempergunakan Syarikat untuk mendapat manfaat secara salah Bagi pihak plaintif-plaintif - Faizul Hilmy, Ahmad Yani Aminuddin, Nurul Jannah Mohd Joaini & Moer Mohd Fadil Meor Sharifudin; T/n Mior & Associates Bagi pihak defendan pertama - Tidak Diwakili Bagi pihak defendan kedua & ketiga - Francis Goh Yun Hung; T/n Francis Goh & Co
[2019] 1 LNS 330	VIJAYAN RAMAN & SATU LAGI lwn. PP Apabila tindakan dan cara tertuduh menyebabkan kematian si mati adalah serius, maka satu hukuman yang berbentuk pengajaran dan pencegahan harus diberikan. PROSEDUR JENAYAH: Rayuan - Rayuan terhadap hukuman - Hukuman penjara 20 tahun bagi kesalahan di bawah s. 304(a) Kanun Keseksaan - Tindakan tertuduh telah menyebabkan kematian si mati dengan cara yang serius - Sama ada satu hukuman yang berbentuk pengajaran dan pencegahan harus diberi bagi menghalang tertuduh daripada mengulangi kesalahannya - Sama ada hukuman yang dijatuhkan adalah terlampau tinggi Bagi pihak perayu-perayu - V Rajehgopal; T/n V Rajehgopal Bagi pihak responden - Mohd Fairuz Johari, Timbalan Pendakwa Raya; Pejabat Penasihat Undang-Undang Negeri Selangor

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CLJ 2020 Volume 7 (Part 2)

The doctrine of secret trust which enables a testator to direct vide his will the disposition of his property upon his death to a 'legatee' to hold it on trust for an unnamed or a secret beneficiary is statutorily applicable in Malaysia, bearing in mind the purport of s. 3(1) of the Civil Law Act 1956, the Wills Act 1959 and the fact that the concept has never been explicitly abrogated by any of our statutes or Acts of Parliament. The doctrine does not offend public policy and is consistent with the fundamental human right of privacy, and the Wills Act, it ought to be noted, protects the testamentary freedom of testators. Another justification for its enforcement is that it is made outside and independently of the will, having arisen from the independent obligation as so accepted by the trustee. It follows therefore that if the testator is of sound mind, memory and understanding, and has not been shown to have been suffering from any testamentary incapacity, such as the testator in this case, it would not be right to deny him his agreement with his trustee and with it his right and desire to make dispositions to his sons through his marriage to his second wife, and nor would it be realistic for the court to uphold a strict reading of the statutes so as to allow the trust to fail.
Chin Jhin Thien & Anor v. Chin Huat Yean & Anor [2020] 7 CLJ 137 [FC]

• SUBJECT
• CORAM
• COUNSEL

The application to set aside leave as so granted by the Federal Court to the Attorney General to commence committal proceedings against the respondents news portal for publishing statements contemptuous of the Judiciary cannot succeed and ought to be dismissed, as the respondents had clearly facilitated the publication of the impugned statements and are presumed to have published the same; evidently, a prima facie case against the respondents had been made out by the Attorney General, thereby justifying the grant of leave.
Peguam Negara Malaysia v. Mkini Dotcom Sdn Bhd & Anor [2020] 7 CLJ 173 [FC]

• SUBJECT
• CORAM
• COUNSEL

A payment obligation arising out of a negotiable instrument such as a Letter of Credit (LC) should be strictly honoured by the bank issuing the instrument. This said, where the supporting documents adduced by a negotiating bank to support a claim for reimbursement on the LC are non-compliant, or not in conformity with the requirements of such LC, the issuing bank may avoid liability therefor, or be altogether absolved from honouring the obligation as such inchoate documents cannot be good for negotiation and cannot therefore assist the claimant bank; more so, when its conduct is one of a sham and detached from the principles of accountability, transparency and good governance.
Punjab National Bank v. Malayan Banking Bhd [2020] 7 CLJ 177 [CA]

• SUBJECT
• CORAM
• COUNSEL

An interim injunction order may be issued against the biological father of a child who had given up his child for adoption but has reneged on his said legal pledge. The general effect of an adoption order is that it destroys the legal bond between the infant and its natural parents and puts him in precisely the same position as a natural child of the adoptive parents; the rights and obligations of the natural parents or guardians of the adopted child, in other words, just fade away and are extinguished upon the issuance of such an adoption order.
ABC & Anor v. JKL [2020] 7 CLJ 190 [HC]

• SUBJECT
• CORAM
• COUNSEL

The Industrial Court is not seised with jurisdiction to adjudicate on a representation made by an employee of a foreign embassy if the nature of his employment with the embassy is such that it forms an integral part of the sovereign activity of the foreign State and its embassy. A security guard employed by the United States Embassy, for instance, is caught under this doctrine of sovereign immunity, and cannot therefore have his day in the Industrial Court to vent his dissatisfaction after being dismissed from his employment by the embassy.
The United States Of America v. Menteri Sumber Manusia Malaysia & Ors [2020] 7 CLJ 210 [HC]

• SUBJECT
• CORAM
• COUNSEL

The prosecution, in preferring a charge against an accused in both the English language and Bahasa Malaysia must ensure that the two versions correspond and tally with each other and are not vitiated by any inconsistency or discrepancy. Where therefore an accused has been charged with an offence under s. 122B(b)(bb) of the Securities Industry Act 1983 read with s. 122(c) thereof for abetting a company who had knowingly permitted the making of a misleading statement to the Stock Exchange, the fact that the English version of the charge carries the word "permitted" but no translation thereof has been made to its Bahasa Malaysia version may bear very adversely on the legality of the charge and the prosecution. The absence of the corresponding translation could mean that in so far as the Bahasa Malaysia version of the charge is concerned, it was the company itself that was alleged to have made the misleading statement, thereby causing ambiguity, and prejudice and confusion to the accused. It needs little reminder that such a failure to properly frame the ingredients of the charge may be fatal and not curable under s. 156 of the Criminal Procedure Code, and may render the conviction of the accused therein unsustainable in law.
Yue Chi Kin v. PP [2020] 7 CLJ 224 [HC]

• SUBJECT
• CORAM
• COUNSEL

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CLJ Article(s)

1. FREEDOM OF ASSOCIATION: FROM NORDIN SALLEH TO KHALIQ MEHTAB ^{[Read excerpt]}
   by REZA RAHIM* [2020] 7 CLJ(A) xi

[2020] 7 CLJ(A) xi



MALAYSIA

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FREEDOM OF ASSOCIATION: FROM NORDIN SALLEH TO KHALIQ MEHTAB

by
REZA RAHIM*

In 1992, the Supreme Court of Malaysia had a novel question of law to be decided before it. A five-member panel of the Supreme Court comprising of Abdul Hamid Omar LP; Harun Hashim SCJ; Mohd Yusoff Mohamed SCJ; Gunn Chit Tuan SCJ and Edgar Joseph Jr SCJ had the duty of deciding if the then newly enacted anti-hopping law by the Kelantan State Government was constitutional.^[1]

The case presented before them involved two elected representatives by the name of Nordin Salleh and Wan Najib Wan Mohamed who had resigned from their party Semangat 46 to join UMNO. They were the elected representatives of Sungai Pinang and Limbongan constituency.

As far as the story goes, Nordin Salleh and Wan Najib were elected to the Dewan Undangan Negeri Kelantan during the General Elections which were held on 21 October 1990 and were therefore sworn in as members.

. . .

* Advocate & Solicitor of the High Court of Malaya.

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LNS Article(s)

1. PERSONAL DATA PROTECTION IN THE AGE OF COVID-19* ^{[Read excerpt]}
   by Timothy Siaw, Elyse Diong [2020] 1 LNS(A) lxxxi

[2020] 1 LNS(A) lxxxi



MALAYSIA

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PERSONAL DATA PROTECTION IN THE AGE OF COVID-19*

by
Timothy Siaw
Elyse Diong

In this article, Timothy Siaw and Elyse Diong analyse the importance of complying with the Personal Data Protection Act 2010 in the age of Covid-19.

Introduction

With the implementation of the Movement Control Order ("MCO") since 18 March 2020, the Conditional Movement Control Order ("CMCO") as well as the Recovery Movement Control Order, the Government has issued a number of Standard Operating Procedures ("SOPs") to control the spread of the Covid-19 pandemic.

These SOPs^[1] include measures to facilitate contact tracing and monitoring of potentially infected persons which pose additional complexity to data protection compliance and increased privacy risks. The digital footprint generated from the implementation of these SOPs include the attendance and details of employees such as name, identification number, temperature, health condition, time of entry and exit and the personal details of customers such as their names, temperatures and contact numbers.

In the implementation of these SOPs, compliance with the Personal Data Protection Act 2010 and data security measures must not be overlooked.

. . .

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

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2. COMMUNITY LINKS: WHY CORPORATE SOCIAL RESPONSIBILITY IS GOOD FOR BUSINESS* ^{[Read excerpt]}
   by Declan Norrie** [2020] 1 LNS(A) lxxx

[2020] 1 LNS(A) lxxx



AUSTRALIA

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COMMUNITY LINKS: WHY CORPORATE SOCIAL RESPONSIBILITY IS GOOD FOR BUSINESS*

by
Declan Norrie**

Declan Norrie, Manager CSR and Pro Bono at Proximity, explains how donations, volunteering, and responsible supply chain choices can transform a business community's impact and staff retention.

Organisations are increasing their focus on corporate social responsibility (CSR) and showing their commitment to the communities in which they operate.

They are doing this through donations to organisations in the community sector, staff volunteering, environmentally conscious office planning, supply chain choices, and more.

As a result, businesses that focus on CSR not only positively contribute to their communities, but they also benefit from their involvement. Proximity has a strong commitment to our community and people, and as a result we have established a long-term CSR strategy, led by our CSR Manager, who is dedicated to the delivery and implementation of our strategy.

As leaders in the CSR space, we will explore why we believe CSR is good for business and share our lessons learnt in building and delivering an effective CSR program.

We hope our experience will give other organisations the opportunity to increase their positive community impact while understanding the overall business benefits.

. . .

*Published with kind permission of the Law Society of the Australian Capital Territory. See Ethos Law Week 2020.

**Manager CSR and Pro Bono, Proximity.

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