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Issue #34/2020 13 August 2020

New This Week Case(s) of the Week HE-CON SDN BHD v. BULYAH ISHAK & ANOR AND ANOTHER APPEAL [2020] 7 CLJ 271 CHIN WAI LEONG & ORS v. PP & OTHER APPLICATIONS [2020] 7 CLJ 322 JUDICIAL QUOTES  Latest Cases Legal Network Series CLJ 2020 Volume 7 (Part 3) Articles LNS Article(s) Legislation Highlights Principal Acts Amending Acts PU(A) PU(B) Legislation Alert

HE-CON SDN BHD v. BULYAH ISHAK & ANOR AND ANOTHER APPEAL [2020] 7 CLJ 271
FEDERAL COURT, PUTRAJAYA
TENGKU MAIMUN TUAN MAT CJ; MOHD ZAWAWI SALLEH FCJ; ABANG ISKANDAR FCJ;
IDRUS HARUN FCJ; ABDUL RAHMAN SEBLI FCJ
[CIVIL APPEALS NO: 02(f)-22-03-2019(B) & 02(f)-28-04-2019(B)]
25 JUNE 2020

LAND LAW: Interest in property - Indefeasibility of title and interest - Vendor registered property in its name despite full payment made by purchaser - Whether vendor intended to divest interest in property - Whether vendor merely bare trustee - Whether incapable of any further dealings with property - Whether subsequent charge to bank valid - Whether transaction based on void instrument - Whether transaction vitiated by s. 340(2) of National Land Code - Whether title obtained by bank defeasible - National Land Code, s. 340(3)

LAND LAW: Interest in property - Indefeasibility of title and interest - Beneficial ownership - Purchase price paid in full - Vendor registered property in its name - Whether sale and purchase agreement concluded between parties - Whether vendor intended to divest interest in property - Whether purchaser was beneficial owner - Whether vendor bare trustee - Whether vendor incapable of any further dealings with property - National Land Code, s. 340(3)

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CHIN WAI LEONG & ORS v. PP & OTHER APPLICATIONS [2020] 7 CLJ 322
COURT OF APPEAL, PUTRAJAYA
YAACOB MD SAM JCA; MOHAMAD ZABIDIN DIAH JCA; YEW JEN KIE JCA
[CRIMINAL APPLICATIONS NO: W-06-1-01-2018, W-06-2-01-2018, W-06-3-03-2018 & W-06-4-03-2018]
12 APRIL 2019

CRIMINAL PROCEDURE: Sentencing - Review - Review of Court of Appeal's decision - Review of own decision - Applicants found guilty of 224 charges under Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001 ('AMLATFA') - Prosecution later withdrew 70 charges - Appeal Panel varied earlier conviction from 224 charges to 154 charges under AMLATFA and passed sentences accordingly - Whether earlier order of conviction drawn out and perfected - Whether earlier conviction final order - Whether amendment to conviction on charges could be done - Whether court functus officio - Whether conviction and sentences safe and valid

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“From the cases cited above, the standard of care practiced by the defendants must be of the same standard of reasonably competent solicitors in the same area of practice. Thus, the pertinent question that needed to be asked here is, whether the acts and omission that were listed by the learned JC as amounting to negligence and breach of retainer on the part of the defendants were acts or omission which no reasonably well informed and competent member of the Bar would have made. In other words, would another lawyer who has taken up the same brief as the defendants have done or taken those actions which the defendants had failed or omitted to do?” – per Suraya Othman JCA in Nyo Nyo Aye v. Kevin Sathiaseelan Ramakrishnan & Anor And Another Appeal [2020] 5 CLJ 82

 

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Legal Network Series

[2018] 1 LNS 1150	MOHD KHAIDIR AHMAD v. MOHD IQBAL ZAINAL ABIDIN In a claim for libel, the defence of fair comment and justification is unavailable if the defendant is unable to prove the truth of his postings on Facebook.  The defence of qualified privilege is also inapplicable when the defendant has no legal, social and moral duty to make Facebook postings and complaints against the plaintiff. TORT: Defamation - Libel - Postings on Facebook - Disparaging allegations concerning abuse of power and corruption against public official - Negative comments posted by netizens - Defence of justification, fair comment and qualified privilege - Defendant disclaimed responsibility for negative comments by netizens - Whether defendant had proved plaintiff received bribes - Whether truth of Facebook postings were proven - Whether defendant has legal, social and moral duties to make Facebook postings and complaints against plaintiff - Whether postings were made to defame plaintiff - Whether there was positive identification of victim For the appellant - T Gunaseelan, Ikmal Hisam Idris & Keshvinjit Singh; M/s Gunaseelan & Associates For the respondent - Adnan Seman @ Abdullah; M/s Adnan Sharida & Associates
[2018] 1 LNS 1273	PEGUAM NEGARA MALAYSIA v. CHIN CHEE KOW 1. The secretary of an association is the public officer of the association and is therefore the correct person to sue and apply for consent under s. 9 of the Government Proceedings Act 1956 to initiate a proceeding. 2. The attorney general ('AG') has no unfettered or absolute discretion in a non-criminal matter, particularly when it involves the public. Hence, the AG's power to give or refuse consent under s. 9 of the Government Proceedings Act 1956 is amenable to judicial review. PUBLIC LAW: Remedies - Judicial review - Leave to commence judicial review - Objection by attorney general ('AG') - Judicial review on refusal of AG to grant secretary of an association consent to file a civil proceeding - Consent under s. 9 of Government Proceedings Act 1956 ('GPA') - Whether provision of s. 9 of GPA should be read together with s. 2 of Societies Act 1966 - Whether association was adversely affected by decision of AG in refusing consent - Whether real and genuine interest in subject matter has been shown - Whether subject matter of intended proceeding was of public interest - Whether application was frivolous and vexatious ADMINISTRATIVE LAW: Judicial review - Leave to commence judicial review - Principles and procedures - Filing of affidavit in reply - Absence of disputed facts - Whether attorney general was required to file affidavit in reply at leave stage CONSTITUTIONAL LAW: Attorney General - Authority - Justiciability of Attorney General's ('AG') consent under s. 9(1) of Government Proceedings Act 1956 - Discretion on non-criminal matter - Whether AG has unfettered discretion in a civil law matter, particularly when in involves the public - Whether AG's power to give or refuse consent amenable to judicial review - Whether court should exercise its judicial supervision For the appellant - Rosli Ahmad; Peguam Kanan Persekutuan, Jabatan Peguam Negara For the respondent - Ravi Chandran; M/s SC Ravi & Associates
[2018] 1 LNS 1284	KEE WAH SOONG v. YAP BOON HWA AND ANOTHER APPEAL 1. Where a joint venture agreement is entered into based on a representation that certain available projects would be placed with the company, which subsequently did not transpire, such inducement amounts to fraudulent misrepresentation. 2. An agreement cannot be final and genuine when there are amendments to crucial terms unilaterally made and handwritten in pencil. CONTRACT: Joint venture - Agreement - Conditions precedent - Failure to comply with conditions precedent - Defendant entered joint venture agreement with plaintiff to develop projects - Plaintiffs were in need of funds to carry out projects and defendant had injected money by purchasing certain shares of plaintiffs in a company so that projects can be emplaced in company - Whether joint venture agreement was conditional upon plaintiffs ensuring projects were emplaced in company - Whether obligation of defendant to pay for full purchase price of shares was secondary CONTRACT: Agreement - Final agreement - Genuine agreement - Amendments concerning price of shares - Amendment were made using hand written notes by pencil - Unilateral amendments - Whether agreement was final when there were amendments to agreement made in pencil - Whether crucial terms to agreement could be made unilaterally CONTRACT: Misrepresentation - Fraudulent misrepresentation - Inducement - Defendant agreed to purchase plaintiffs' shares in a company provided that plaintiffs emplace certain projects in company - Plaintiffs represented to defendant on availability of projects - Whether availability of projects had induced defendant to enter into agreement with plaintiffs - Whether there was fraudulent misrepresentation when projects were never emplaced in company - Whether defendant entitled for damages For the appellant in appeal 1286 and respondent in appeal 1328 - Avinder Singh Gill; M/s AS Gill & Salina For the respondent in appeal 1286 and appellant in appeal 1328 - P Rajasundram & Kamala Saraswathy; M/s Raja S Devan & Veni
[2019] 1 LNS 366	PP lwn. SIVANESON GUNABALAN & SATU LAGI Pesalah yang telah mengaku bersalah atas kesalahan pemilikan dadah berbahaya di bawah s. 39A(2) Akta Dadah Berbahaya 1952 adalah tidak wajar dijatuhkan hukuman pemenjaraan yang sangat panjang. Justeru, hukuman pemenjaraan yang dijatuhkan harus adil, masuk akal dan munasabah kepada tertuduh. PROSEDUR JENAYAH: Penghukuman - Pemenjaraan - Budi bicara mahkamah - Kesalahan pemilikan dadah berbahaya - Pengakuan bersalah - Kuanti dadah adalah kecil - Sama ada hukuman yang dijatuhkan mestilah berbentuk hukuman yang adil, masuk akal dan munasabah kepada tertuduh - Sama ada hukuman pemenjaraan yang dijatuhkan perlu berdasarkan fakta dan keadaan kesalahan kes - Sama ada mitigasi tertuduh harus dipertimbangkan Bagi pihak pendakwaan - Siti Hajar Mustaffa, Timbalan Pendakwaraya Bagi pihak tertuduh pertama - S Preakas; T/n Preakas & Parters Bagi pihak tertuduh kedua - Gunalan; T/n Gunalan & Co
[2019] 1 LNS 367	KETUA PENGARAH PERTUBUHAN KESELAMATAN SOSIAL lwn. LEONG AH LEE Kecederaan yang dialami ketika melakukan aktiviti rutin harian tidak termasuk di bawah takrif bencana kerja bagi tuntutan faedah hilang upaya di bawah s. 24(1)(a) Akta Keselamatan Pekerja 1969. Tuntutan feadah hilang upaya sementara hanya diberikan untuk bencana kerja jika kecederaan yang dialami adalah akibat daripada kemalangan yang berlaku semasa perjalanan kerja dari tempat kediaman. UNDANG-UNDANG BURUH: Keselamatan sosial - Skim perlindungan - Faedah hilang upaya sementara - Bencana kerja - Kemalangan berlaku ketika perjalanan dari pasar ke rumah - Sama ada tuntutan faedah hilang upaya sementara hanya diberikan jika kemalangan berlaku semasa perjalanan kerja dari tempat kediaman - Sama ada aktiviti rutin harian termasuk di bawah takrif bencana kerja - Akta Keselamatan Pekerja 1969, ss. 2(6) & 24(1)(a) Bagi pihak perayu - Diba Natalia; T/n Skrine Bagi pihak responden - Rozilan; T/n Rozilan & Aribah Ahmad

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CLJ 2020 Volume 7 (Part 3)

A proprietor of property who has sold his property to a purchaser and received the full purchase price thereof stands as a bare trustee to the purchaser vis-a-vis the property, and to that end is prohibited from dealing with the property for the benefit of any new purchaser or holder of interest, including, as the case may be, a chargee, and further, is legally incapable of passing any proprietary or registrable interest to the latter. Where therefore a housing-developer property owner sold a property to a purchaser (deceased) who has paid the purchase price in full, and the developer, without the consent or knowledge of the deceased, proceeded to charge the property to a bank as security for a facility, the charge transaction or presentation is inescapably tainted with illegality, and is indeed void ab initio as against both the developer and the bank. The chargee bank in the obtaining circumstances cannot be considered a bona fide party, is not obtaining any indefeasible title thereto under s. 340(2) of the National Land Code, and in any case, is not entitled to avail itself to the proviso of s. 340(3) of the Code. Ownership of the property as a matter of law must revert to the deceased and/or his estate.
He-Con Sdn Bhd v. Bulyah Ishak & Anor And Another Appeal [2020] 7 CLJ 271 [FC]

• SUBJECT
• CORAM
• COUNSEL

The Court of Appeal is endowed with a review mechanism and has jurisdiction to review its own decision or an earlier decision of its panel. Accordingly, where a panel of the court sat on a criminal appeal and in that capacity convicted the five accused herein for a total of 224 charges under the Banking and Financial Institutions Act 1989 and Anti-Money Laundering and Anti-Terrorism Financing Act 2001, it is perfectly lawful for the same panel, prior to sentencing the accused, to have allowed the prosecution to withdraw 70 of the charges and have the number of convictions reduced to 154 instead on the ground that the accused ought not to be convicted of non-existent offences or defective charges. The panel, not being as yet functus officio in the circumstances, is bound to exercise its residual jurisdiction and reopen the appeal, as the process would avoid real injustice which would have ensued had it not amended the list of charges.
Chin Wai Leong & Ors v. PP & Other Applications [2020] 7 CLJ 322 [CA]

• SUBJECT
• CORAM
• COUNSEL

A regularly obtained judgment in default may be set aside notwithstanding a long time lapse if there are merits in the defence, and if the delay is reasonably accounted for. Hence, where a legal firm who has had a fallout with its legal assistant had obtained a monetary judgment against him for breach of agreement, the fact that the latter had taken some took 2 years and 7 months to set it aside may not be reflective of an indolent litigant if circumstances showed that he had taken various steps to resolve the matter with the firm albeit unsuccessfully, and had encountered numerous difficulties both in seeking to assess the relevant documentation from the firm and obtaining assistance for corroborative evidence. The difficulties faced are not imagined but real, and the failure of the trial court to scrutinise the evidence and test it against the facts constitutes a misdirection which rendered the default judgment liable to be set aside.
Ramasundramoorthy Permalu v. Gregory Yusran & Associates [2020] 7 CLJ 355 [CA]

• SUBJECT
• CORAM
• COUNSEL

The trial judge in a drug trafficking case, in calling the accused to enter his defence or in finding him guilty of the charge, cannot resort to the double presumptions of possession and trafficking under s. 37(d) and 37(da) respectively of the Dangerous Drugs Act 1952. The Federal Court decision in Alma Nudo Atenza v. PP & Another Appeal on the illegality of double presumptions applies retrospectively, and hence, while the High Court below cannot be faulted for applying double presumptions at the point of deciding this case which was before Alma Nudo Atenza, the application is nonetheless invalid and contrary to law.
Yugarajan Letchimanasamy & Anor v. PP & Another Appeal [2020] 7 CLJ 372 [CA]

• SUBJECT
• CORAM
• COUNSEL

A child witness of tender years is a competent witness if he understands the nature of his oath and the duty of speaking the truth, and is able to give rational answers to the questions asked; and such competency ought to be determined by way of a preliminary hearing, bearing in mind ss. 118 and 133A of the Evidence Act 1950. Both prudence and the law, however, dictate that the preliminary hearing should be conducted before the child witness takes his oath, and not thereafter.
Baharudin Mat Nor v. PP [2020] 7 CLJ 388 [HC]

• SUBJECT
• CORAM
• COUNSEL

An action by an insured motorcar owner seeking partial indemnity from the co-insurer of his vehicle, according to JPJ's vehicle insurance records, in order to satisfy a judgment sum arising from a road accident, cannot succeed if the eight conditions as set out for an insurer's liability under s. 96 of the Road Transport Act 1987 have not been fulfilled; since the insured here was not insured by the previous insurer, and had not been issued with any certificate of insurance by the latter nor had any premiums been paid by the insured to the co-insurer, the claim cannot succeed. 
Etiqa Takaful Bhd v. Chong Meng Kooi & Anor [2020] 7 CLJ 398 [HC]

• SUBJECT
• CORAM
• COUNSEL

A foreign employee who is not in possession of a valid work permit is nonetheless entitled to have his claim for non-payment of wages heard by the Labour Court pursuant to s. 70 of the Employment Act 1955 if an employment relationship can be established.
Fice Fransina Nenobais v. Lee Hee Chooi [2020] 7 CLJ 416 [HC]

• SUBJECT
• CORAM
• COUNSEL

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LNS Article(s)

1. THE POSITION OF HATE SPEECH IN MALAYSIA AND THE NEED FOR REGULATION ^{[Read excerpt]}
   by Kho Yii Ting* Kho Feng Ming** [2020] 1 LNS(A) lxxxiii

[2020] 1 LNS(A) lxxxiii



MALAYSIA

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THE POSITION OF HATE SPEECH IN MALAYSIA AND THE NEED FOR REGULATION

by
Kho Yii Ting*
Kho Feng Ming**

Abstract

The right of a citizen to free speech is expressly provided in Article 10(1)(a) of the Federal Constitution. With such constitutional protection, society enjoys the privilege to express their thoughts during the discourse so as to ensure the transparency of the administration. Nonetheless, we must be aware of the fact that that right is not to be exercised autonomously without restrictions. Speeches such as hate speech ought to be strictly regulated due to its tendency to stir racial disaffections among the pluralistic society. Although Malaysia has yet to experience any large-scale hate speech crimes, there is a perturbing concern constantly calling for the regulation of such crimes.

. . .

* Corresponding author. Faculty of Law, University Malaya, khoyiiting@gmail.com

** LL.B (1st Class Honours), Universiti Kebangsaan Malaysia, Associate Qualification in Islamic Finance, Islamic Banking & Finance Institute Malaysia, Certificate in Book-keeping & Accounts, London Chamber of Commerce & Industry, khofengming@gmail.com.

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2. RELYING ON THE DOCTRINE OF FRUSTRATION DURING A PANDEMIC* ^{[Read excerpt]}
   by Aisyah Muhammad [2020] 1 LNS(A) lxxxiv

[2020] 1 LNS(A) lxxxiv



MALAYSIA

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RELYING ON THE DOCTRINE OF FRUSTRATION DURING A PANDEMIC*

by
Aisyah Muhammad

In this article, Aisyah Muhammad discusses whether a party to a contract can rely on the doctrine of frustration in the event of the non-performance of its contractual obligations during the Covid-19 pandemic.

Introduction

The emergence of the highly contagious Covid-19 virus has without a doubt caused major disruptions across various industries including transportation, retail, tourism and oil and gas. The unprecedented movement control order (“MCO”) imposed in Malaysia has effectively caused the closure of all government and private premises except those involved in providing essential services. As a result, many business owners are struggling to keep their businesses afloat and are unable to perform their contractual obligations.

. . .

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

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3. FREE SPEECH AT WORK FOLAU, BANERJI, AND BEYOND?^{+ [Read excerpt]}
   by John Wilson* Kieran Pender** [2020] 1 LNS(A) lxxxii

[2020] 1 LNS(A) lxxxii



AUSTRALIA

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FREE SPEECH AT WORK FOLAU, BANERJI, AND BEYOND?⁺

by
John Wilson*
Kieran Pender**

"When considered in light of its history and context, the Code that now regulates their behaviour no longer turns public servants into lonely ghosts. But, properly interpreted, it still casts a powerful chill over political communication." Edelman J, 2019^[1]

In 1998, the Australian Industrial Relations Commission declared in Rose v. Telstra that ‘an employee is entitled to a private life’.^[2] More than two decades later, the Commission’s remark retains central relevance to one of the most controversial issues in modern employment law. Yet this pithy observation was not concerned with out-of-hours tweeting, nor the exchange of lewd snapchats between colleagues. Rather, Rose came about via a more time-honoured form of employee misadventure — a punch-up between workmates.

. . .

+ Published with kind permission of the Law Society of the Australian Capital Territory. See Ethos Autumn 2020.

*John Wilson is the managing legal director at Bradley Allen Love Lawyers.

**Kieran Pender is a visiting fellow at the Australian National University's Centre for International and Public Law. The views expressed here are their own.

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