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Issue #43/2020 15 October 2020

New This Week Case(s) of the Week MOHD KHAIRUL AZAM ABDUL AZIZ v. MENTERI PENDIDIKAN MALAYSIA & ANOR [2020] 9 CLJ 309 STONE WORLD SDN BHD v. ENGAREH (M) SDN BHD [2020] 9 CLJ 358 JUDICIAL QUOTES  Latest Cases Legal Network Series CLJ 2020 Volume 9 (Part 3) Articles LNS Article(s) Legislation Highlights Principal Acts Amending Acts PU(A) PU(B) Legislation Alert

MOHD KHAIRUL AZAM ABDUL AZIZ v. MENTERI PENDIDIKAN MALAYSIA & ANOR [2020] 9 CLJ 309
FEDERAL COURT OF MALAYSIA
AZAHAR MOHAMED CJ (MALAYA)
[LEAVE APPLICATION NO: BKA-2-10-2019(W)]
11 NOVEMBER 2019

CIVIL PROCEDURE: Court - Federal Court - Jurisdiction - Exclusive original jurisdiction of Federal Court - Applicant sought declaratory reliefs that ss. 17 and 28 of Education Act 1996 were inconsistent with art. 152 of Federal Constitution - Applicant sought leave to commence proceedings in Federal Court - Whether application came under art. 4(4) of Federal Constitution - Whether declaratory reliefs sought by applicant within exclusive original jurisdiction of Federal Court - Whether leave of Federal Court Judge required - Whether High Court competent to hear matter - Federal Constitution, art. 128(1)(a)

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STONE WORLD SDN BHD v. ENGAREH (M) SDN BHD [2020] 9 CLJ 358
FEDERAL COURT OF MALAYSIA
ROHANA YUSUF PCA; AZAHAR MOHAMED CJ (MALAYA); ABANG ISKANDAR CJ (SABAH AND SARAWAK); NALLINI PATHMANATHAN FCJ; ABDUL RAHMAN SEBLI FCJ
[CIVIL APPEAL NO: 02(f)-55-06-2019(W)]
10 AUGUST 2020

CIVIL PROCEDURE: Judgments and orders - Impeachment - Consequential orders - Liberty to apply - Whether consequential order required to give effect to original judgment - Whether original trial court functus officio and disentitled to grant consequential order - Whether original findings, judgment and order altered or varied - Res judicata - Issue estoppel - Whether consequential order final and binding 

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“It is important to bear in mind that in an application for minority shareholders oppression, it must be established that the wrong is a personal wrong to the minority shareholder, and not a distinct corporate wrong; it would be an abuse of the oppression action where the nature of the complaint was misconduct rather than mismanagement.”

“The Companies Act provides a separate and distinct remedy for corporate wrongs. Since the oppression provision under s. 346 can be invoked without the leave of court, and if successfully invoked, can result in the grant of a much broader range of remedies than those available in a statutory derivative action under s. 347, the undeniable concern is to ensure that plaintiffs do not improperly pursue an action for minority oppression when a remedy under a statutory derivative action is more apt.” – per Evrol Mariette Peters JC in Choy Yuk Kong & Ors v. Landyork Farming Sdn Bhd & Ors [2020] 6 CLJ 92

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Legal Network Series

[2019] 1 LNS 528	JH CAPITAL SERVICES SDN BHD lwn. PENTADBIR TANAH DAERAH PETALING Kehilangan pendapatan dari sewa tanah tidak termasuk di dalam perkara-perkara di perenggan 2 Jadual Pertama, Akta Pengambilan Tanah 1960 yang perlu dipertimbangkan dalam memberikan pampasan bagi pengambilan tanah. Oleh kerana pendapatan dari sewa datang bersama dengan tanah, maka tiada pampasan untuk kehilangan pendapatan dari sewa tanah tersebut wajar diberikan kerana hak pemohon ke atas tanah sudah tidak wujud lagi setelah pemohon telah dibayar pampasan untuk pengambilan tanah. UNDANG-UNDANG TANAH: Pengambilan tanah - Pampasan - Kehilangan pendapatan dari sewa tanah - Sama ada kehilangan pendapatan sewa tanah boleh menjadi sebahagian pampasan - Sama ada kehilangan pendapatan sewa termasuk di dalam perkara-perkara yang perlu dipertimbangkan di perenggan 2 Jadual Pertama Akta Pengambilan Tanah 1960 - Sama ada hak pemohon ke atas tanah sudah tidak wujud lagi setelah pemohon dibayar pampasan atas pengambilan tanah - Sama ada kehilangan pendapatan daripada sewa tanah boleh diambil kira sebagai pampasan perniagaan UNDANG-UNDANG TANAH: Pengambilan tanah - Perintah pampasan - Rayuan terhadap jumlah pampasan nilaian tanah - Sama ada rayuan pemohon adalah dihalang di bawah s. 40D(3) Akta Pengambilan Tanah 1960 - Sama ada nilaian tanah yang diberikan setelah mengambil kira pandangan dan nasihat pengapit-pengapit - Sama ada jumlah pampasan nilaian tanah adalah munasabah dan wajar Bagi pihak pemohon - Manpal Singh Sachdev & Tan Weng Hung; T/n Manjit Singh Sachdev Mohamad Radzi & Partners Bagi pihak responden - Mohamed Abdul Hakim; Pejabat Penasihat Undang-Undang Negeri
[2019] 1 LNS 537	JAIFULREZAM RETHUAN lwn. ACP MUHAMMAD HANIF OTHMAN & YANG LAIN 1. Representasi oleh pemohon tidak diprejudis dengan percanggahan atau perbezaan jenis dadah yang dinyatakan di dalam laporan polis dan pertuduhan semata-mata kerana jenis dadah yang dinyatakan di dalam pertuduhan adalah berasaskan laporan patologi. 2. Tindakan tatatertib salahlaku boleh diambil terhadap pemohon berkenaan penyalahgunaan dadah berbahaya walaupun pemohon tidak menghadap sebarang pertuduhan jenayah. UNDANG-UNDANG PENTADBIRAN: Semakan kehakiman - Certiorari - Semakan kehakiman terhadap keputusan pembuangan kerja pegawai polis oleh lembaga tatatertib polis - Tindakan tatatertib salahlaku - Pembuangan kerja berikutan penyalahgunaan dadah berbahaya - Perbezaan jenis dadah dalam laporan polis dan dalam pertuduhan berbeza - Pertuduhan berasaskan laporan patologi - Sama ada representasi oleh pemohon telah diprejudis dengan percanggahan jenis dadah - Sama ada pertuduhan terhadap pemohon adalah teratur dan pemohon telah mendapat hak pembelaan diri yang munasabah - Sama ada tindakan tatatertib salahlaku boleh diambil walaupun tiada pertuduhan jenayah terhadap pemohon Bagi pihak pemohon - Noor Svetlana Mohd Noor Nordin, Fradlin Izreen Mustafar & Fairul Ezany Said; T/n Svetlana Nordin & Co Bagi pihak responden - Syahriah Shaplee, Peguam Persekutuan; Jabatan Peguam Negara
[2019] 1 LNS 637	SOO YUIT WENG v. TAN AI LUAN Where issues raised by both parties in a striking out application can only be resolved through a proper hearing of the evidence from witnesses, then the striking out application should be dismissed. An application for striking out should be dismissed when a party cannot justify his application under each of the limbs of O. 18 r. 19(1) of the Rules of Court 2012 relied upon. CIVIL PROCEDURE: Striking out - Action - Claim for return of monies paid under mistaken belief - Consent judgments entered in previous matrimonial proceedings based on mistaken facts and law - Unjust enrichment by one party - Whether action discloses reasonable cause of action - Whether plaintiff's action was scandalous, frivolous or vexatious or otherwise an abuse of court process - Whether issues raised by both parties could only be resolved summarily through affidavit evidence - Rules of Court 2012, O. 18 r. 19(1)(a),(b),(d) For the plaintiff - V Selvaratnam; M/s V Selva & Associates For the defendant - Edwin Seibel & Kalai Nilaa; M/s Gibb & Co
[2019] 1 LNS 650	RAMESH RAJARATNAM v. MALAYAN BANKING BERHAD 1. Certificates of indebtedness issued by a bank shall be conclusive evidence of the amount due, owing and payable by a debtor in the absence of any manifest error or direct challenge as to the accuracy of the same. 2. A principal card holder of a credit card is personally and severally liable for all debts incurred including the debts under a supplementary card. BANKING: Banks and banking business - Credit card - Recovery - Claims for outstanding amount due in respect of two credit cards - Dispute as to amount stated in statement of claim - Only one amount stated in statement of claim - Whether amount claimed was for total debts due under two credit cards - Whether amounts stated in certificate of indebtedness was conclusive - Whether amounts stated in certificate of indebtedness should be accepted as evidence in absence of direct challenge to accuracy of amount stated in certificate of indebtedness BANKING: Banks and banking business - Credit card - Recovery - Claims for outstanding amount due in respect of two credit cards - Defendant alleged supplementary card member was his ex-wife and thus she should be made jointly liable - Whether principal card member of several credit cards is personally and severally liable for all debts incurred including from supplementary cards For the appellants - Paul Aisu; M/s Paul & Associates For the respondent - Ahmad Budiman Kamarulzaman & A Kavitha; M/s Ho Loke & Koh
[2019] 1 LNS 666	MUSTAFA TASADUK & ORS v. KERAJAAN MALAYSIA A ledger with entries of the educational loan amounts released to the borrower, the payments made and the amount outstanding is evidence of the amount owing although the contents of the ledger are disputed by the borrower. CONTRACT: Loan - Default in repayment - Educational loan - Allegation of breach of promise or representation - Borrower alleged educational loan would be converted to a scholarship - Claim supported by a ledger with entries of amount released, payments made and amount outstanding - Contents of ledger disputed by borrower - Whether there was any concluded agreement or commitment to convert educational loan to a scholarship - Whether there was evidence of amount owing - Whether borrower had demonstrated contents of ledger wrong LIMITATION: Accrual of cause of action - Contract - Default in repayment of educational loan - Whether right of action accrued on date of acknowledgement or last payment - Limitation Act 1953, ss 6, 26(2) For the applicant - Amarjeet Singh; M/s Zubeda & Amarjeet For the respondent - Rebecca Helden; Pejabat Penasihat Undang-Undang Negeri Pahang, Jabatan Peguam Negara Malaysia

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CLJ 2020 Volume 9 (Part 3)

Not all constitutional challenges on the validity of a law come under the exclusive original jurisdiction of the Federal Court. Only challenges as to the competence of the Legislative body to enact a law fall within the exclusive original jurisdiction of the Federal Court.

The above said, an application for leave to commence proceedings in the Federal Court and to invoke the apex court's original jurisdiction made under arts. 4(4) and 128(1)(a) of the Federal Constitution for the purpose of seeking declaratory reliefs that ss. 28 and 17 of the Education Act 1966 were invalid and null and void because Parliament had no power to enact those sections, and more because Parliament were powerless by virtue of art. 152 of the Federal Constitution to grant discretionary powers on the Minister of Education to establish national type schools that are not using the national language as the medium of instruction, is misconceived and destined to be dismissed. It must be so as the challenge amounts only to a challenge on the constitutional validity of the two provisions, and not a case where declaration is sought that the impugned provisions were invalid on the ground that they related to a matter with respect to which Parliament had no power to make such law, as per the requisite precondition of art. 4(3) of the Federal Constitution or a case where Parliament could be said to have strayed beyond matters within their legislative competence with reference to matters in the legislative lists in the Ninth Schedule of the Federal Constitution. Since it is within the realm of Parliament's power to enact the impugned provisions, the reliefs sought do not thus come within the exclusive jurisdiction of the Federal Court. The reliefs sought indeed fall within the original jurisdiction of the High Court and ought to be litigated at first instance before that court.
Mohd Khairul Azam Abdul Aziz v. Menteri Pendidikan Malaysia & Anor [2020] 9 CLJ 309 [FC]

• SUBJECT
• CORAM
• COUNSEL

An accused person may be convicted even on the uncorroborated evidence of an accomplice and it is totally irrelevant that the accomplice is not charged together with the others who committed the same crime. It is also not necessary that the corroboration should be of the actual commission of the crime. It would be enough corroboration if there is independent evidence of relevant circumstances connecting the accused with the crime.
Puganeswaran Ganesan & Ors v. PP & Other Appeals [2020] 9 CLJ 326 [FC]

• SUBJECT
• CORAM
• COUNSEL

Where a defendant has been found liable in detinue of chattel belonging to the plaintiff and has been ordered by way of a Final Order to deliver the chattel back to the plaintiff, but had contumeliously reneged on its legal duty and failed to comply with the Final Order, which in turn had caused the goods or chattel to suffer damage from passage of time or the environment, it is perfectly appropriate for the plaintiff to have applied for and be subsequently granted a Consequential Order in such terms as would have given effect to the Final Order or not rendered it nugatory. The grant of such a Consequential Order does not transgress the rule of functus officio or res judicata and is well within the inherent jurisdiction of the court. The superior courts possess such a residual inherent jurisdiction not only to enable them to clarify the terms of an order and to give effect to their decision, but also to ensure substantial justice between the parties. The form in which the exercise of such inherent jurisdiction is effected is via the 'liberty to apply' rule, which is an exemption to the functus officio doctrine.
Stone World Sdn Bhd v. Engareh (M) Sdn Bhd [2020] 9 CLJ 358 [FC]

• SUBJECT
• CORAM
• COUNSEL

Jenayah buli dalam kalangan pelajar tidak harus diambil ringan. Pihak pentadbiran sekolah khususnya memikul kewajipan penjagaan terhadap hal ehwal pelajar-pelajar yang diamanahkan kepada mereka, baik dari sudut disiplin mahu pun keselamatan. Pelanggaran kewajipan ini satu kecuaian yang sekaligus menjadikan majikan atau prinsipal pihak pentadbiran sekolah, iaitu Ketua Pengarah Kementerian Pendidikan Malaysia dan Kerajaan Malaysia turut cuai dan bertanggungan secara vikarius.
Ahmad Ikhwan Ahmad Fauzi lwn. Ahmad Safwan Hanim Mohd Fahimi & Yang Lain [2020] 9 CLJ 379 [HC]

• SUBJECT
• CORAM
• COUNSEL

Legally privileged communications between an advocate and solicitor and a client are not admissible as evidence in court where there is no proof that such communication was made in furtherance of any illegal purpose or that it involved the commission of any crime or fraud.
Celcom (Malaysia) Bhd & Anor v. Tan Sri Dato’ Tajudin Ramli & Ors And Another Case [2020] 9 CLJ 390 [HC]

• SUBJECT
• CORAM
• COUNSEL

A stay of proceeding may be granted where an applicant can show the existence of special circumstances warranting such a stay. Where, however, an application for summary judgment for unpaid tax is filed by the Government against an alleged tax defaulter, the fact that the impugned assessment is pending appeal before the Special Commissioners, or that the tax payable involves a large sum of money does not constitute a special circumstance in law. It is in any case, trite that in such a tax assessment or tax claim by the Government, even when the case is pending disposal before the Special Commissioners, the amount levied must first be paid by the tax payer. This requirement will not render the success of the applicant's appeal, if at all, nugatory as, at the end of it all, the Government is legally obliged to return any amount of tax incorrectly collected from the tax payer.
Kerajaan Malaysia v. Nooryana Najwa Dato Sri Mohd Najib [2020] 9 CLJ 414 [HC]

• SUBJECT
• CORAM
• COUNSEL

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LNS Article(s)

1. DEVELOPMENT OF THE IMPLEMENTATION OF HUDUD IN BRUNEI ^{[Read excerpt]}
   by Tun Abdul Hamid Mohamad* [2020] 1 LNS(A) cix

[2020] 1 LNS(A) cix



BRUNEI

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DEVELOPMENT OF THE IMPLEMENTATION OF HUDUD IN BRUNEI

by
Tun Abdul Hamid Mohamad*

On 22 October 2013, the Government of Brunei Darussalam gazetted the Syariah Penal Code Order, 2013.

On 01 May 2014, Phase 1, which includes the law of ta’zir^[1] except the death penalty and qisas (retaliation), was implemented.

On 03 April 2019, Phases 2 and 3, including the death penalty were fully implemented.

So far, no hudud^[2] case has been tried. There are only a few cases of sariqah (theft) offences in which the offenders have been sentenced to ta’zir (imprisonment) and one case of qisas of causing injury in which the offender was sentenced to B$91,000.00 (1/3 diyat^[3]) and imprisonment for five years.

. . .

*(Rtd) Chief Justice Of Malaysia, tunabdulhamid@gmail.com, http://www.tunabdul hamid.my https://tunabdulhamid.me.

[Note: I thank Tuan Hj Suhaimi Hj Gemok for getting me the court judgments, the relevant laws and the speech of the Hon. Attorney General to enable me to write this article. However, the views expressed in this article are mine based on the facts I have, my understanding and my arguments. If the facts or my understanding are wrong, please correct me. If there are better arguments, I too will follow it. Wallahu a'lam.]

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2. EXTENSION OF TIME, LOSS & EXPENSE AND ITS NOTICE REQUIREMENTS - IF YOU FAIL TO PLAN, YOU PLAN TO FAIL ^{[Read excerpt]}
   by Balan Nair Thamodaran* Naveen Sri Kantha** [2020] 1 LNS(A) cx

[2020] 1 LNS(A) cx



MALAYSIA

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EXTENSION OF TIME, LOSS & EXPENSE AND ITS NOTICE REQUIREMENTS -
IF YOU FAIL TO PLAN, YOU PLAN TO FAIL

by
Balan Nair Thamodaran*
Naveen Sri Kantha**

A. INTRODUCTION

Max Abrahamson, an internationally recognized expert in construction law famously quoted that:

“A party to a dispute, particularly if there is arbitration, will learn three lessons (often too late): the importance of records, the importance of records and the importance of records…and not forgetting the importance of notices, the importance of notices and the importance of notices.”

In view of the Movement Control Order dated 16.03.2020 (“MCO”), physical works on site may have come to a halt, however, what remains to be a live issue will be the critical timeline that contractors will now face to prepare an application for extension of time (“EOT”) and loss & expense (whenever applicable) (“L&E”).

. . .

*Partner, M/s Thomas Phillip, Advocates and Solicitors.

**Associate, M/s Thomas Phillip, Advocates and Solicitors.

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3. HIJAB PREJUDICE: SECULARISM OR ISLAMOPHOBIA ^{[Read excerpt]}
   by Nur Syakirah Binti Mohd Adnan* [2020] 1 LNS(A) cxi

[2020] 1 LNS(A) cxi



MALAYSIA

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HIJAB PREJUDICE: SECULARISM OR ISLAMOPHOBIA

by
Nur Syakirah Binti Mohd Adnan*

INTRODUCTION

The wearing of headscarf in France has been a very controversial issue since 1989. The debate essentially concerns whether Muslim girls who choose to wear headscarf may do so in state schools. On 10th February 2004, a bill containing proposals for legislation to the headscarf ban passed its first reading in Parliament with 494 parliamentarians voting in its favour. The bill would prohibit the wearing of the Muslim headscarf, in state schools. During its passage, Parliamentary Speaker, Jean-Louis Debré, stated that there needed to be clear affirmation that public school is a place for learning and not for militant activity or proselytism, hence the law. The reasoning behind the legislation is based on the notion that France's principles of long-established secularism are under threat without such a law. Secularism, it is claimed, is crucial to the social harmony and national cohesion of France and its citizens, "laïcité."^[1] Albeit, discrimination against Muslim minorities is often cited as a reason for hijab ban in France, such discrimination does not play a role in Turkey, a Muslim-majority state. To illustrate, in France, Muslims only comprise 5-10% of the population, while Turkey has an overwhelming Muslim population i.e. 99% of its total 70 million population.

. . .

*G1915632 IIUM, LLM in International Law, adnansyakira@yahoo.com

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4. PO-TAY-TO, PO-TAH-TO HOW CONSTRUING A WILL CAN CAUSE SOME HEADACHES* ^{[Read excerpt]}
   by Kerstin Glomb** [2020] 1 LNS(A) cviii

[2020] 1 LNS(A) cviii



AUSTRALIA

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PO-TAY-TO, PO-TAH-TO
HOW CONSTRUING A WILL CAN CAUSE SOME HEADACHES*

by
Kerstin Glomb**

The Law Society's Elder Law & Succession Law Committee shows how 'standard' wording in Wills relies on everybody having the same interpretation of words - a linguistic nirvana that simply doesn't exist.

Sometimes, what one person regards as clear and concise communication can be totally opaque to another. What seems perfectly plain to the person who prepared the document can be construed completely differently by the person reading it.

This particularly applies to legal documents such as Wills, especially in ‘home-made’ documents.

When interpreting Wills, it is accepted that the aim is to determine the testator’s intention. To do so, the Courts have regard to the Will ‘as a whole’.

. . .

* Published with kind permission of the Law Society of the Australian Capital Territory. See Ethos Winter 2020, Issue 256.

** Senior Estate Planning Solicitor, KJB Law. Member, Act Law Society's Elder Law & Succession Law Committee.

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