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Issue #45/2020 29 October 2020

New This Week Case(s) of the Week LING PEEK HOE & ANOR v. GOLDEN STAR & ORS [2020] 9 CLJ 601 MAJLIS PEGUAM MALAYSIA v. KRISHNASAMY BHAKTAVATSALU [2020] 9 CLJ 613 JUDICIAL QUOTES  Latest Cases Legal Network Series CLJ 2020 Volume 9 (Part 5) Articles LNS Article(s) Legislation Highlights Principal Acts Amending Acts PU(A) PU(B) Legislation Alert

LING PEEK HOE & ANOR v. GOLDEN STAR & ORS [2020] 9 CLJ 601
COURT OF APPEAL, PUTRAJAYA
ZALEHA YUSOF JCA; HANIPAH FARIKULLAH JCA; KAMALUDIN MD SAID JCA
[CIVIL APPEAL NO: A-02(IM)-2555-12-2018]
07 AUGUST 2020

CIVIL PROCEDURE: Stay - Committal proceedings - Stay of committal proceedings pending disposal of application for review at Federal Court - Whether High Court had jurisdiction to grant order of stay - Whether review application in Federal Court would have implication upon outcome of case - Balance of justice - Whether in favour of grant of stay - Whether appellate intervention warranted - Rules of the Federal Court 1995, r. 137 - Rules of Court 2012, O. 92 r. 4

CIVIL PROCEDURE: Jurisdiction - High Court - Stay of committal proceedings pending disposal of application for review at Federal Court - Whether High Court had jurisdiction to grant order of stay - Whether review application in Federal Court would have implication upon outcome of case - Balance of justice - Whether in favour of grant of stay - Whether appellate intervention warranted - Rules of the Federal Court 1995, r. 137 - Rules of Court 2012, O. 92 r. 4

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MAJLIS PEGUAM MALAYSIA v. KRISHNASAMY BHAKTAVATSALU [2020] 9 CLJ 613
COURT OF APPEAL, PUTRAJAYA
MARY LIM JCA; SURAYA OTHMAN JCA; LEE SWEE SENG JCA
[CIVIL APPEAL NO: W-02(A)-632-03-2018]
07 MARCH 2020

LEGAL PROFESSION: Roll of Advocates and Solicitors - Restoration on Roll - Appeal against - Advocate and solicitor struck off Roll but restored on Roll by High Court - Test of 'fairness and reasonable' - Whether there was substantial lapse of time from suspension and subsequent striking off of advocate and solicitor from Roll - Whether advocate and solicitor fit and proper person to have his name restored to Roll - Whether advocate and solicitor made restitutions for failures and was worthy of restoration to Roll - Whether objections raised by Bar Council of such grave concerns as to bar advocate and solicitor's application for restoration to Roll - Legal Profession Act 1976, s. 107(3)

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“The ultimate policy and object of the DDA is to prohibit the spread or perpetration or trading in drugs. To that end, the classification of a wide range of activities to enable the prosecution of all persons involved in the drug trade is tenable. And equally so for the purposes of proving guilt, given the difficulties otherwise involved in establishing the offence of 'trafficking'. However, to impose the same mandatory extreme and final punishment of death, to all persons falling within that range, lacks any rational basis. The diversity of persons and circumstances, not to mention the quantity of drugs involved, precludes such classification. On the contrary, such an imposition is irrational, arbitrary and capricious.”

“The imposition of the death penalty as the sole punishment for trafficking, being unreasonable, unjust, unfair and devoid of any rational classification, infringes art. 8(1) FC. It follows therefore that s. 39B DDA is similarly violative of art. 5(1) FC namely the right not to be deprived of life save in accordance with law. The law being arbitrary, capricious and therefore neither fair nor proportionate, does not qualify as 'law' contemplated under art. 5(1) FC. Any deprivation of life pursuant to such law is therefore unconstitutional.” – Per Nallini Pathmanathan FCJ (dissenting) in Letitia Bosman v. PP & Other Appeals [2020] 8 CLJ 147 (at 236)

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Legal Network Series

[2019] 1 LNS 360	SAMIM SAINSHA v. PP Objection as to the expertise of a chemist is unsustainable in the absence of any cross-examination to contradict the expertise of the chemist. In such circumstances, the evidence of the chemist and the chemist report must be accepted. EVIDENCE: Expert evidence - Expert witness - Chemist - Expertise - Challenge - Chemist did not allude to her qualification in detail - Absence of any cross-examination to contradict expertise of chemist - Expert report had been served well before trial - Whether evidence of chemist and her report must be accepted - Evidence Act 1950, s. 45 CRIMINAL PROCEDURE: Defence - Innocent carrier - Offence relating to trafficking of dangerous drugs - Drugs were found inside bag carried by accused - Accused alleged that she had mistakenly taken someone else's bag - Accused admitted bag belonged to her during arrest - Accused did not lodge report on missing luggage - Whether accused was an innocent carrier - Whether normal reaction of accused was itself sufficient to rebut presumption under s. 37(d) of Dangerous Drugs Act 1952 For the appellant - M/s Shamsul Sulaiman For the respondent - Jasmee Hameeza Jaafar; Jabatan Peguam Negara
[2019] 1 LNS 418	PP lwn. NURUL YULIANA Dalam memberi pertimbangan kepada pengakuan salah tertuduh, Mahkamah perlu melihat kepada pembelaan tertuduh serta keadaan tertuduh ditangkap kerana melakukan kesalahan. Sesuatu tempoh pemenjaraan yang dijatuhkan terhadap tertuduh perlu mencerminkan kesimbangan antara aspek pencegahan dan aspek pemulihan ke atas tertuduh. PROSEDUR JENAYAH: Penghukuman - Prinsip penghukuman - Kesalahan serius - Pengakuan salah - Pengakuan salah dibuat pada kesempatan terawal setelah pertuduhan pilihan ditawarkan - Sama ada pengakuan salah tertuduh telah menyebabkan penyelesaikan kes dengan segera dan menjimatkan masa - Sama ada pembelaan tertuduh serta keadaan tertuduh ditangkap perlu dilihat apabila mempertimbangkan pengakuan salah - Sama ada tempoh pemenjaraan yang sesuai wajar mencerminkan tujuan pemulihan tertuduh - Sama ada aspek pencegahan dengan aspek pemulihan perlu diseimbangkan apabila menjatuhkan hukuman Bagi pihak pendakwaan - TPR Mohd Raimi Mohd Ramli; Bahagian Pendakwaan, Jabatan Peguam Negara Bagi pihak tertuduh - S Selvee & Lee Yoon Tong; T/n Gooi & Azura
[2019] 1 LNS 467	LIM CHONG YEAN lwn. KHONG YOKE BEE 1. Pemilik berdaftar tanah mempunyai hak untuk mengambil sebarang tindakan terhadap penceroboh tanah walaupun pemilik berdaftar tersebut tidak menduduki tanah tersebut. 2. Penentuan ganti rugi bagi pencerobohan atas tanah perlu melalui proses taksiran ganti rugi yang berasingan supaya pihak-pihak dapat mengemukakan bukti masing-masing. PROSEDUR SIVIL: Pihak-pihak - Locus standi - Tindakan berasaskan tort pencerobohan yang difailkan oleh pemilik berdaftar - Pemilik berdaftar tidak menduduki tanah - Sama ada pemilik tanah mempunyai hak untuk mengambil sebarang tindakan terhadap penceroboh tanah TORT: Pencerobohan atas tanah - Ganti rugi - Taksiran - Prinsip dan prosedur - Sama ada penentuan ganti rugi perlu melalui proses taksiran ganti rugi secara berasingan - Sama ada prosiding ganti rugi perlu dijalankan secara berasingan supaya pihak-pihak dapat mengemukakan bukti masing-masing - Kaedah-Kaedah Mahkamah 2012, A. 37 k. 1 Bagi pihak perayu/defendan - Kelvin Ng Sin Huat; T/n BB Teh Bagi pihak responden/plaintif - New Sin Yew & Rechara Chan (Pelatih Dalam Kamar); T/n Amerbon
[2019] 1 LNS 663	TEE SIN TECK & ANOR v. RHB BANK BERHAD 1. An action commenced by an undischarged bankrupt without any sanction from the Director General of Insolvency to initiate a claim is void ab initio and ought to be struck out. Any sanction obtained after filing of action does not have retrospective effect. 2. The chargor's cause of action against the chargee, premised on the tort of abuse of process on the alleged basis that the chargee had used a tainted debit balance to auction lands under the charge, occurred when the chargee commenced foreclosure proceedings and not when the lands were auctioned of. CIVIL PROCEDURE: Striking out - Action - Action commenced by undischarged bankrupt without sanction of Director General of Insolvency ('DGI') - Sanction only obtained after filing of action - Whether action commenced by an undischarged bankrupt without sanction of DGI was void ab initio - Whether there could be retrospective sanction CIVIL PROCEDURE: Striking out - Limitation - Cause of action premised on tort of abuse of process - Action by chargor against chargee - Allegation that chargee had used tainted debit balance to auction lands under charge and entering default judgment in previous proceedings - Whether abuse of process occurred when chargee filed foreclosure proceedings or when land was auctioned off - Whether action was time barred - Whether action ought to be struck out CIVIL PROCEDURE: Striking out - Doctrine of res judicata - Existence of previous action concerning same parties - Previous action was based on contract - Present action premised on tort of abuse of process - Whether plaintiff's issue relating to abuse of process ought to have been raised in previous proceedings - Whether action caught by res judicata For the plaintiff - Manian K Marappan & Wong Zu Hao; M/s Manian K Marappan & Company For the defendants - Andrew Chiew Ean Vooi & Nicola Tang; M/s Hishammuddin Allen & Gledhill
[2019] 1 LNS 851	CNLT (FAR EAST) BERHAD (DALAM LIKUIDASI) v. JCT LIMITED 1. The doctrine of res judicata is inapplicable where the cause of action is entirely distinct although the facts in the present action is similar to the previous action. 2. Creditors and contributories have a right to conduct litigation in the name of a wound up company provided that the sanction from the winding-up court is regularly obtained pursuant to s. 236(3) of the Companies Act 1965. The sanction granted by the winding-up court is a final order granting creditors and contributories the locus standi to conduct litigation in the name of a company. CIVIL PROCEDURE: Striking out - Writ and statement of claim - Res judicata - Facts admittedly similar - Action by company against shareholder - Cause of action concerning undue preference and knowing assistance - Existence of previous action commenced by plaintiff's employees against plaintiff, defendant and other director concerning dishonest conduct involving real moral blame - Whether cause of action was entirely distinct - Whether cause of action arose from different provisions of law - Whether doctrine of res judicata applicable - Whether action was obviously unsustainable CIVIL PROCEDURE: Striking out - Writ and statement of claim - Locus standi - Suit was brought in name of wound up company by contributory - Winding-up court granted sanction for creditors and contributory to conduct litigation in name of wound up company - Sanction regularly obtained - Liquidators consented and agreed to contributory taking action under name of company - Whether plaintiff has locus standi to initiate action - Whether action ought to be taken by liquidator - Whether action was obviously unsustainable For the plaintiff - Wong Rhen Yen & Siti Nur Amirah; M/s S Ravenesan For the defendant - Johnson Lim Kung & Patricia Jayne Noed; M/s Ariff Rozhan & Co

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CLJ 2020 Volume 9 (Part 5)

Where a matter between a plaintiff and a defendant which began in the High Court has finally been decided by the Federal Court, and applications were made, firstly by the plaintiff to the High Court to commit the defendant to prison for alleged non-compliance of the Federal Court's order, and secondly by the defendant to the Federal Court to review the apex court's decision under r. 137 Rules of the Federal Court 1995, the High Court which heard the committal application is seised with jurisdiction, by virtue of the inherent power granted it by O. 92 r. 4 Rules of Court 2012, to grant an order to stay the proceeding before it pending the disposal of the review application before the Federal Court.

Whilst ss. 73 and 102 of the Courts of Judicature Act 1964, r. 13 Rules of the Court of Appeal 1994 and r. 52 Rules of the Federal Court 1995 do not support the proposition that stay of proceeding may be granted pending the review application, and whilst there was no decided or reported case on the issue at hand, the fact remains that O. 92 r. 4 gives the High Court the power to stay a proceeding pending the outcome of such a review application so as to prevent injustice and abuse of court process. The jurisdiction however is exceptional in nature, and should not be exercised unless the 'special circumstance' hurdle is met and it appears that the injustice can only be avoided by the intervention of the court. The facts herein showed that if the defendant were to ultimately succeed on the review application, the severity of prejudice that it might suffer is apparent if stay is not allowed, as committal proceedings is penal in nature. The balance of justice thus lies in granting a stay.
Ling Peek Hoe & Anor v. Golden Star & Ors [2020] 9 CLJ 601 [CA]

• SUBJECT
• CORAM
• COUNSEL

Where an advocate and solicitor who has been struck off the Roll of Advocates and Solicitors for misconduct applies to be re-admitted to the Roll, it is the court's duty to assess the application with utmost scrutiny, and to regard fairness to the advocate whilst not forgetting for a moment the need for fairness to the profession, the court and the public. This said, the fact that the Legal Profession Act 1976 vide its s. 107(1) has provided for restoration after having been struck off suggests that in deserving cases, such as in cases where the lawyer has fully rehabilitated himself, borne the fruits of repentance and made restitution, that grace and a second chance be extended to him. Where, therefore, 12 years has lapsed since the advocate and solicitor was struck off the Roll, and 25 years since he was suspended, with the time having been spent by him doing charity work and earning a living through respectable means, as done by the applicant in this case, the court may be inclined to treat the facts as sufficient punishment for him; the punishment having run its course, he should therefore be given a chance to redeem himself and to serve the public once again as a full fledged advocate and solicitor.
Majlis Peguam Malaysia v. Krishnasamy Bhaktavatsalu [2020] 9 CLJ 613 [CA]

• SUBJECT
• CORAM
• COUNSEL

The exclusive jurisdiction of a University or its Senate to determine whether a candidate has satisfied the requirements to be conferred a degree is an academic matter not amenable to any review or judicial scrutiny by the courts. This is reflected in ss. 4(1) and 17(2) of the University and University Colleges Act 1971 and a host of relevant Regulations, Rules and Guidelines. To allow courts to determine disputes on such an academic matter thus constitutes a serious transgression of the university's exclusive jurisdiction.

The respective High Courts below, in allowing the applicant's applications for Judicial Review to quash the decisions of the respondent's Senate in respect of the applicant's PhD thesis, had not only transgressed into the exclusive jurisdiction of the latter, but usurped the power of the Senate to nullify the dubious results of the applicant's thesis. The learned judges had taken upon themselves the powers legally conferred on the Senate, and worse, had directed the Senate to confer a PhD degree on the applicant premised on Examiners' Reports which an investigation found to be compromised, and notwithstanding the applicant's failure to abide by the relevant Rules, Regulations and Guidelines. The instant appeal should be dismissed on the sole ground that courts have no jurisdiction to determine matters which are legally within the purview of the Senate.
Sivapalan Govindasamy v. Universiti Malaya [2020] 9 CLJ 638 [CA]

• SUBJECT
• CORAM
• COUNSEL

An application for leave to commence committal proceedings that arose from a breach of court order, unlike contempt in the face of the court, requires compliance with O. 52. r. 2B of the Rules of Court 2012, and the failure to do so renders the application invalid and the orders obtained vide the application incurable under O. 1A and O. 2 of the ROC.
Dato’ Sri Andrew Kam Tai Yeow v. Tan Sri Dato’ Kam Woon Wah & Ors [2020] 9 CLJ 693 [HC]

• SUBJECT
• CORAM
• COUNSEL

An application to set aside, quash or dismiss a charge at a stage where the prosecution witnesses have not completed giving evidence or documentary evidence has not been adduced, should only be entertained at the end of the prosecution's case. It would be premature for the court to consider such application without availing itself of all the evidence that the prosecution plans to submit. This said, the High Court is nonetheless seized with an inherent jurisdiction to strike out a charge without waiting for the prosecution's case to end, albeit that the power should only be invoked in exceptional circumstances where there is a miscarriage of justice.
Dato’ Sri Mohd Najib Hj Abd Razak v. PP [2020] 9 CLJ 709 [HC]

• SUBJECT
• CORAM
• COUNSEL

The High Court shall not act as the court of first instance to entertain any defence or plea from a defendant in an action for tax recovery by the Government. The doctrine that a defendant may raise triable issues to evade the entering of a summary judgment by the court does not operate or apply to tax recovery cases commenced by the Government. Challenges on assessments involving questions of facts should be heard by the Special Commissioners of Income Tax (SCIT); it is only when the merits of the matter have been decided by the SCIT that the High Court should deal with the same by way of an appeal.
Government Of Malaysia v. Dato’ Sri Mohd Najib Hj Abd Razak [2020] 9 CLJ 723 [HC]

• SUBJECT
• CORAM
• COUNSEL

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LNS Article(s)

1. THE IRONY OF "BUSH DOCTRINE" - FOLLOWING 9/11 ATTACK ^{[Read excerpt]}
   by Nur Syakirah Binti Mohd Adnan* [2020] 1 LNS(A) cxvi

[2020] 1 LNS(A) cxvi



MALAYSIA

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THE IRONY OF "BUSH DOCTRINE" - FOLLOWING 9/11 ATTACK

by
Nur Syakirah Binti Mohd Adnan*

CHAPTER ONE

1. Introduction

Following its success in removing the Taliban from power and dismantling Al-Qaida's operations in Afghanistan in 2001, the United States of America turned its sights on a new target, Iraq. The next phase of its "war on terror" however, involved proactive rather than reactive force, in that the United States did not intend to wait until it was attacked before mounting a military operation. In the National Security Strategy (NSS) of September 2002, President George W Bush unveiled details of the United States' policy of pre-emptive military action. He stated that "to forestall or prevent the hostile acts by our adversaries the United States will, if necessary, act pre-emptively." This explicit claim to a right of pre-emptive self-defence made against the threat posed by terrorism and weapons of mass destruction was ultimately not used to justify the war against Iraq, instead the United States and its allies argued that the use of force was authorised by previous United Nations Security Council resolutions.^[1] However, the United States' assertion on pre-emptive self-defence has re-ignited debate about the adequacy of the contemporary international law framework on the use of force and, on a broader level, has highlighted the United States' preference for unilateral rather than multilateral approaches to issues of international peace and security.

. . .

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

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2. MALAYSIAN PERSPECTIVE: CONTRACTORS ALL RISK INSURANCE ^{[Read excerpt]}
   by Nadesh Ganabaskaran* Elvina Leong** [2020] 1 LNS(A) cxvii

[2020] 1 LNS(A) cxvii



MALAYSIA

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MALAYSIAN PERSPECTIVE:
CONTRACTORS ALL RISK INSURANCE

by
Nadesh Ganabaskaran*
Elvina Leong**

1. Brief introduction to Contractors All Risk (“CAR”) insurance:

A. Definition:

A non-standard insurance policy to provide coverage for material damage and liability in construction projects.

B. Purpose of CAR insurance policy:

i. To mitigate the element of risk at construction sites; and

ii. Offers protection against loss or damage and third-party claims in a construction project.

C. Why CAR insurance policy?

It is a mandatory requirement for most of the Construction Contracts.

. . .

* Nadesh heads the Construction & Litigation Practice Group at Messrs Malek, Gan & Partners. He read law at the University of West of England and was admitted as a Barrister-at-Law of Middle Temple. Nadesh began his legal career in the Building and Construction Dispute Resolution, Litigation and Arbitration department of one of the country's most prominent firms. Prior to founding Malek, Gan & Partners, Nadesh completed his MSc in Construction Law and ADR at Kings College, London. He is also a certified Adjudicator with Asian International Arbitration Centre.

** Elvina is a Pupil-in-Chambers, under the tutelage of Nadesh at Messrs Malek, Gan & Partners. Elvina graduated with a Second Class Upper from the University of London International Programme and subsequently obtained her Certificate of Legal Practice. Elvina assists Mr. Nadesh on all aspects of construction dispute resolution, including litigation, arbitration and adjudication.

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3. LAW ON 'TRADE DRESS' PROTECTION: A COMPARATIVE ANALYSIS BETWEEN INDIA AND THE U.S. ^{[Read excerpt]}
   by V.S. Krishna* Krishnaja Olappamanna** [2020] 1 LNS(A) cxviii

[2020] 1 LNS(A) cxviii



INTERNATIONAL

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LAW ON 'TRADE DRESS' PROTECTION:
A COMPARATIVE ANALYSIS BETWEEN INDIA AND THE U.S.

by
V.S. Krishna*
Krishnaja Olappamanna**

Abstract

As rightly said, 'Innovation is a key to successful new product'. There has been an inflation in the scope of marks which are registered as Trade marks and Trade dress is a fine example of this expansion. Prior to the recognition of trade marks by statutory enactments, the Court of Equity granted it reasonable protection. A trade mark is an asset, the value of which gradually increases with each passing day, hence the use of a trade mark is of great importance. In the present aeon, the concept of 'Trade dress' has been seen as a new taxonomy for the previous expressions defined under the words 'Trade mark and mark'. Trade dress refers to the overall image of a product. It is the arrangement of identifying characteristics or decorations that are connected to a product. Historically, trade dress is referred to the product packaging and labelling. Per contra, the Courts have expanded the term to include the total appearance of the product. The concept has originated from the U.S. and the law relating to this concept can be traced from the common law doctrine prohibiting unfair competition.

. . .

*Research Associate in World of Legal Research and B.B.A., LLB (Hons.) from Sastra Deemed to be University, India krishnavs9708@gmail.com.

** LL.M at School of Legal Studies, Cochin University of Science and Technology olappamannak@gmail.com.

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