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Issue #9/2020 20 February 2020

New This Week Case(s) of the Week SUPERINTENDENT OF LAND AND SURVEY DEPARTMENT KUCHING-DIVISIONAL OFFICE & ANOR v. RATNAWATI HASBI MOHAMAD SULEIMAN [2020] 2 CLJ 425 Appeal Updates Appeal Updates Latest Cases Legal Network Series CLJ 2020 Volume 2 (Part 4) Articles LNS Article(s) Legislation Highlights Principal Acts Amending Acts PU(A) PU(B) Legislation Alert

SUPERINTENDENT OF LAND AND SURVEY DEPARTMENT KUCHING-DIVISIONAL OFFICE & ANOR v.
RATNAWATI HASBI MOHAMAD SULEIMAN [2020] 2 CLJ 425
FEDERAL COURT, KUCHING
TENGKU MAIMUN TUAN MAT CJ; DAVID WONG DAK WAH CJ (SABAH AND SARAWAK); ROHANA YUSUF FCJ; IDRUS HARUN FCJ; NALLINI PATHMANATHAN FCJ
[CIVIL APPEAL NO: 01(f)-27-08-2018(Q)]
15 JANUARY 2020

LAND LAW: Land acquisition - Inquiry - Inquiry pursuant to memorandum of declaration of resumption of land - Notices to land owner - Requirement under s. 49 of Land Code (Sarawak) (Cap 81) - Whether proper service effected - Notices sent to wrong address - Whether amounted to complete failure of service - Land owner absent during inquiry - Whether land owner denied procedural fairness - Whether notices under s. 49 valid - Whether resumption process rendered void - Land Code (Sarawak) (Cap 81), ss. 51, 52, 53 & 54

LAND LAW: Acquisition of land - Inquiry - Notice of resumption of land to State - Issuance of notice under s. 49 of Land Code (Sarawak) (Cap 81) - Failure of service to land owner - First inquiry conducted and compensation awarded in absence of land owner - Resumption of land to State - Whether resulted in finality of award and resumption - Issuance of second notice of inquiry without re-alienation to land owner - Whether second notice of inquiry of no effect as land vested in State - Land Code (Sarawak) (Cap 81), ss. 13 & 15A

CONSTITUTIONAL LAW: Fundamental rights - Right to property - Whether constitutionally guaranteed fundamental right - Acquisition of land by State Government of Sarawak - Inquiry - Notices to land owner - Failure of services in breach of requirement under s. 49 of Land Code (Sarawak) (Cap 81) - Land owner absent during inquiry - Whether amounted to violation of fundamental rights under art. 13 of Federal Constitution - Whether notices under s. 49 valid - Whether resumption process rendered void - Land Code (Sarawak) (Cap 81), ss. 51, 52, 53 & 54

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1. Hari Singh Kanda Simseer Singh lwn. PP [2019] 1 LNS 1551 (CA) mengetepikan kes Mahkamah Tinggi PP lwn. Hari Singh Kanda Simseer Singh [2017] 1 LNS 1094

2. Kho Kang Yau v. PP [2019] 1 LNS 670 (CA) affirming the High Court case of PP v. Kho Kang Yau [2017] 1 LNS 2302

Legal Network Series

[2018] 1 LNS 1086	AZMIR ROSLI lwn. SANTHAKUMARI KUPPUSAMY & SATU LAGI Kos prosthesis adalah tuntutan di bawah gantirugi khas yang perlu diplid secara spesifik dan dibuktikan secara ketat. Hanya kos prosthesis sebenar yang ditanggung boleh dituntut. GANTI RUGI: Ganti rugi khas - Kos prosthesis - Plaintif tidak pernah mencuba kaki palsu yang dicadangkan - Sama ada plaintif telah membuktikan kaki palsu yang lebih mahal lebih sesuai digunakan olehnya - Sama ada plaintif hanya boleh menuntut kos sebenar harga kaki palsu yang ditanggung Bagi pihak perayu/defendan - Melvin Selvam; T/n Sabarudin Othman & Ho Bagi pihak responden/plaintif-plaintif - M Ramachelvam & Rozilawati; T/n Rama-Rozi & Associates
[2018] 1 LNS 1087	R VALOO MAIYEE P RAMIAH lwn. PP Faktor kepentingan awam memerlukan mahkamah menjatuhkan hukuman berat ke atas mereka yang melakukan kesalahan dibawah s. 20(1) Akta Kawalan Bekalan 1961. PROSEDUR JENAYAH: Rayuan - Rayuan terhadap hukuman - Rayuan oleh pendakwa raya - Kesalahan serius - Kesalahan dibawah s. 20 (1) Akta Kawalan Bekalan 1961 - Penyimpanan gas petroleum cecair di luar tempat yang dibenarkan - Kepentingan awam - Budi bicara Mahkamah - Sama ada satu hukuman denda yang tinggi perlu dipertimbangkan - Sama ada faktor kepentingan awam memerlukan mahkamah menjatuhkan hukuman berat - Sama ada gas petroleum cecair wajar dirampas Bagi pihak perayu - Geethan Ram; T/n Geethan Ram Bagi pihak responden - Karthi & Azrina; Jabatan Peguam Negara
[2018] 1 LNS 1337	AEON CO (M) BHD v. GEMILANG WARAS SDN BHD In construing whether there is an option to renew a lease agreement, reliance may be placed on the express terms of the lease agreement coupled with an evaluation of the contemporaneous conduct and/or correspondences between the parties. CONTRACT: Construction of contracts - Interpretation of contracts - Lease Agreement - Agreement to lease - Plain and ordinary meaning - Contemporaneous letters and conduct - Whether there is an express clause which granted an option to renew the lease - Whether there is an obligation to renew the lease For the plaintiff - R Jayasingam; M/s BH Lawrence For the defendant - Ng Sai Yeang & Wong Chee Chin; M/s Raja Darryl & Loh
[2018] 1 LNS 1417	NAPHAPORN TANGJIT v. PP The accused cannot rely on the defence of innocent carrier where there is clear wilful blindness by the accused as she was fully aware the presence of the drug hidden in the backpacks when she ran the paid errand to deliver the drug to the unknown person in Kuching and the drug was so concealed in order to avoid detection by the authorities. CRIMINAL PROCEDURE: Appeal - Trafficking in dangerous drugs - Appeal against conviction and sentence - Whether trial judge made inference of trafficking - Whether trial judge invoked double presumption under ss 37(d) and 37(da) of Dangerous Drugs Act 1952 - Whether accused person innocent carrier CRIMINAL LAW: Dangerous Drugs Act 1952 - Section 39B(1) - Trafficking in dangerous drugs - Whether accused person had custody and control of drugs - Whether wilful blindness on the part of the accused - Whether the accused could have reasonably noticed the drugs which were concealed inside the 6 backpacks that arrived together with the accused - Whether accused had custody and control of drugs - Defence of innocent carrier - Failure to rebut the presumption under ss 37(d) and 37(da) of Dangerous Drugs Act 1952 - Whether there was unlawful interference with the contents of the suitcase For the appellant - Shankar RP Asnadi & Daniel CL Ling; Thomas, Shankar Ram & Co For the respondent - Mohd Taufik Mohd Yusoff; Timbalan Pendakwa Raya, Unit Perbicaraan, Jabatan Peguam Negara
[2018] 1 LNS 2188	SAINIMUDA PM SALLEH & ANOR v. MOHD AMIN PARE & ORS A land application without approval by the land authority does not confer any legal right or interest in the land applied for. As such, a sale and purchase agreement entered before the land application was approved is invalid. CONTRACT LAW: Sale and purchase agreement - Vacant possession - Agreement was entered before the land application was registered in 1997 but during the stage of land application - Whether the Sale and Purchase Agreements and the Deed of Trust entered between vendor and the defendants were valid. For the appellant - Connie Wong; M/s WV & Partners For the respondent - Mark Rosaidey; M/s Amin Jaafar & Co

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CLJ 2020 Volume 2 (Part 4)

Where a declaration is made by the Minister under s. 48 of the Sarawak Land Code to resume land for a public purpose, the resumption exercise cannot be considered as unlawful or fatally flawed or liable to be set aside by reason only that the Superintendent has failed to comply with the statutory requirements in the conduct of an inquiry to assess compensation thereof. Further, no declaratory orders can be made for the subject land to be reinstated on a status quo basis, or reverted to its original position prior to the resumption. Granting such declaratory orders are akin to ordering for recovery of land against the Government, and that is clearly barred by s. 29(1)(b) Government Proceedings Act 1956.

The power of the Minister to make a declaration under s. 48 of the Code includes the power to amend, withdraw or suspend the declaration. Accordingly, absent any express provision that a declaration under s. 48 is extinguished or lapsed upon the completion of the resumption of the acquired land, the s. 48 declaration cannot, by implication or assumption, simply become exhausted or extinguished when the resumption of the subject land had been completed.
Superintendent Of Land And Survey Department Kuching-Divisional Office & Anor v. Ratnawati Hasbi Mohamad Suleiman [2020] 2 CLJ 425 [FC]

• SUBJECT
• CORAM
• COUNSEL

In the case of trafficking in dangerous drugs, where the accused relies on the defence of innocent carrier, the trial judge should consider the issue of deliberate action and wilful blindness and should further make a definitive finding thereon at the end of the prosecution case; in the light of the Federal Court decision in Alma Nudo Atenza v. PP, the reliance on double presumptions by the trial judge is unconstitutional.
Ho Yee Onn v. PP [2020] 2 CLJ 491 [CA]

• SUBJECT
• CORAM
• COUNSEL

As public bodies impliedly attract public interest and the guardian of public interest is the Attorney General, this makes the Attorney General a nominal party in all judicial review applications. The Attorney General and/or his officers therefore have the standing to appear and attend at the leave stage of a judicial review proceeding notwithstanding that he was not representing the putative respondents. The Attorney General also has a separate and independent power and duty under the Federal Constitution to step in and defend and protect the institution of the judiciary and in the interest of administration of justice in the country where the judiciary is under attack.
Messrs Tai Choi Yu & Co, Advocates v. Arifin Zakaria & Anor [2020] 2 CLJ 508 [CA]

• SUBJECT
• CORAM
• COUNSEL

The law does not permit a litigant to enjoy repeated bites of the cherry by commencing a new suit to impeach a default judgment that is regularly entered when it failed to exhaust all appellate avenues or if it had slept on its rights to set aside the said judgment. This is a collateral or backdoor attempt to set aside the default judgment and amounts to an abuse of the court's process.
Pembangunan Tanah Dan Perumahan Sdn Bhd v. Raja Qahaarruddin Raja Abdul Aziz [2020] 2 CLJ 519 [CA]

• SUBJECT
• CORAM
• COUNSEL

The purchasers of parcels of properties in a shopping centre are not entitled to enforce their rights in relation to the common property; actions can only be instituted by the joint management body, being the guardian of the common property, pursuant to s. 8 of the Building and Common Property (Maintenance and Management) Act 2007.
Syarikat East Coast & Ors v. Makna Mujur Sdn Bhd & Ors [2020] 2 CLJ 539 [CA]

• SUBJECT
• CORAM
• COUNSEL

Directors of a company in liquidation who destroyed the company's accounts and records could not claim ignorance of s. 245(3) of the Companies Act 2016 and their action attracted the presumption of fraudulent trading and they were liable for the debts of the company.
Huatah Sdn Bhd v. Yap Chee Kian & Ors [2020] 2 CLJ 560 [HC]

• SUBJECT
• CORAM
• COUNSEL

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LNS Article(s)

1. A CONFUSION OF THE "SIMPLE MAJORITY"* ^{[Read excerpt]}
   by LAI ZHEN PIK [2020] 1 LNS(A) xiv

[2020] 1 LNS(A) xiv



MALAYSIA

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A CONFUSION OF THE "SIMPLE MAJORITY"*

by
LAI ZHEN PIK

In this article, Lai Zhen Pik discusses whether the passing of an ordinary resolution by virtue of a written members’ resolution would require a majority in the shareholding or a majority in the number of shareholders.

Introduction

Shareholders have many legal rights, among the most fundamental of which are the rights to make decisions and to appoint and remove directors. Such shareholders’ rights are exercised through the passing of members’ resolutions, which may be passed in the form of a written resolution or at a meeting of the members.^[1] Resolutions are categorised into ordinary and special resolution.

. . .

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

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2. EXEMPTIONS AND DEROGATIONS ON CROSS BORDER TRANSFERS UNDER THE MALAYSIAN PERSONAL DATA PROTECTION ACT 2010 ^{[Read excerpt]}
   by Nazura Abdul Manap* Ho Kee Loang** [2020] 1 LNS(A) xv

[2020] 1 LNS(A) xv



MALAYSIA

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EXEMPTIONS AND DEROGATIONS ON CROSS BORDER TRANSFERS
UNDER THE MALAYSIAN PERSONAL DATA PROTECTION ACT 2010

by
Nazura Abdul Manap*
Ho Kee Loang**

ABSTRACT

Transborder data flows is a process where unlimited data is transported out from one country to another country to be stored and subsequently processed without any restrictions. The technical process of the transfer involves some form of transmission of the data, storage of the data and computation of the data for use either presently or stored to be used some time in the future. It is quite common to process data of customers, suppliers and employees outside the country in today’s robust business environment. Nevertheless, data protection laws are making such processing of data difficult, if not impossible. Many laws have emerged in trade agreements such as the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP) and the US-MexicoCanada Agreement (USMACA) and in Europe, the OECD Privacy Guidelines, Convention 108 of the Council of Europe or the APEC-Cross Border Privacy Regulations System essentially to restrict transborder data flows.

. . .

* (Ph.D) Professor, Faculty of Law, Universiti Kebangsaan Malaysia, 43600 Bangi, Selangor, nazura@ukm.edu.my.

** Ph. D Candidate, Faculty of Law, Universiti Kebangsaan Malaysia, 43600 Bangi, Selangor, keelo_ang@yahoo.com.

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