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Issue #20/2021 20 May 2021

New This Week Case(s) of the Week AMZED DEVELOPMENT SDN BHD v. DATO' MAT JAHYA HUSSIN & ANOR [2021] 5 CLJ 149 ONG SAUT MEE & ORS v. GASING MERIDIAN SDN BHD [2021] 5 CLJ 249 JUDICIAL QUOTES  Latest Cases Legal Network Series CLJ 2021 Volume 5 (Part 2) Articles LNS Article(s) Legislation Highlights Principal Acts Amending Acts PU(A) PU(B) Legislation Alert

AMZED DEVELOPMENT SDN BHD v. DATO' MAT JAHYA HUSSIN & ANOR [2021] 5 CLJ 149
COURT OF APPEAL, PUTRAJAYA
LAU BEE LAN JCA; ABU BAKAR JAIS JCA; GUNALAN MUNIANDY JCA
[CIVIL APPEAL NO: R-02(NCVC)(W)-1356-07-2019]
07 DECEMBER 2020

CONTRACT: Agreement - Breach - Damages - Claim for - Parties entered into agreement to jointly develop property - Execution of agreement conditional upon obtainment of approval from authorities - Allegations of delay in completing development project - When project must be completed - Whether there were extensions of time agreed by parties for completion of project - Whether extensions of time signified that parties wanted to carry on with agreement - Whether there was delay in completing project, warranting damages for aggrieved party - Contracts Act 1950, s. 56(1)

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ONG SAUT MEE & ORS v. GASING MERIDIAN SDN BHD [2021] 5 CLJ 249
HIGH COURT MALAYA, KUALA LUMPUR
LIM CHONG FONG J
[CIVIL SUIT NO: WA-22C-70-09-2019]
27 JANUARY 2021

LAND LAW: Vacant possession - Late delivery - Claim for liquidated damages - Whether substantial part of late completion excusable by reason of force majeure events - Defendant provided layman rudimentary estimate of defendant's extension of time entitlement - Whether merely impressionistic assessment - Whether inadequate to discharge defendant's required burden of proof - Whether defendant liable for liquidated damages - Whether plaintiffs prima facie entitled to liquidated damages

TORT: Trespass - Encroachment - Construction of crib wall encroaching into plaintiffs' lot - Whether defendant acted honestly, rationally and reasonably in constructing crib wall - Whether complied with road requirement of public authorities - Whether there was breach of implied terms - Whether there was contravention of development laws under Housing Development (Control and Licensing) Act 1966 - Whether plaintiffs' claim for loss and damages caused by crib wall ought to be rejected

STATUTORY INTERPRETATION: Housing Development (Control and Licensing) Act 1966 ('HDA') - Section 3 - 'Housing development' - Whether development project governed by HDA - Whether housing developer ought to comply with statute and regulations

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“The first respondent cannot insist on exercising its fundamental right and at the same time violate the right of others. The comments as we see it are simply scurrilous and irreprehensible. The unwarranted attacks are incendiary which expose the Judiciary to embarrassment, public scandal, contempt and to the point of belittling the Judiciary. Not only that, it had tarnished the Judiciary as being guilty of corrupt activity and had compromised its integrity in carrying out judicial functions. As submitted by the applicant, the comments were not made within the limit of reasonable courtesy or decency and far from good faith.”

“The first respondent's responsibility cannot end by putting in place a T&C with such self-serving caveat for its own self-protection without regard to injury to others. To accept such measures as a complete defence will be to allow it to unjustifiably and irresponsibly shift the entire blame on its third party online subscribers, while exonerating itself of all liabilities. The truth is the postings were made possible only because it provides the platform for the subscribers to post the impugned comments. There being no two ways about it”

“Public interest demands a deterrent sentence be meted out against the first respondent. We therefore hold, a fine of RM500,000 is appropriate.” – per Rohana Yusuf PCA in Peguam Negara Malaysia v. Mkini Dotcom Sdn Bhd [2021] 3 CLJ 603

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Legal Network Series

[2020] 1 LNS 34	PP lwn. KUTIASSAN SYED ALI Trend penghukuman semasa hanya merupakan satu panduan kepada Mahkamah dan Mahkamah adalah tidak terikat untuk mengikuti sepenuhnya. Pengakuan bersalah tertuduh sebelum permulaan bicara serta latar belakang tertuduh merupakan mitigasi peringanan hukuman yang wajar dipertimbangkan oleh Mahkamah. PROSEDUR JENAYAH: Penghukuman - Prinsip-prinsip - Trend penghukuman - Kesalahan mengangkut orang migran yang diseludup - Kesalahan di bawah s. 26J Akta Antipemerdagangan Orang Dan Antipenyeludupan Migran 2007 - Pengakuan bersalah - Sama ada pengakuan salah sebelum permulaan bicara merupakan mitigasi peringanan hukuman - Sama ada Mahkamah adalah terikat untuk mengikuti sepenuhnya dengan trend penghukuman semasa - Sama ada latar belakang tertuduh wajar dipertimbangkan - Sama ada hukuman penjara yang panjang akan meruntuhkan sumber kewangan keluarga tertuduh UNDANG-UNDANG JENAYAH: Perlucuthakan - Perlucutan kenderaan - Budibicara Mahkamah - Tertuduh disabitkan bersalah atas kesalahan dibawah s. 26J Akta Antipemerdagangan Orang Dan Antipenyeludupan Migran 2007 ('Akta') - Tertuduh menggunakan kenderaan kepunyaan isterinya untuk mengangkut migran - Sama ada Mahkamah mempunyai budibicara untuk tidak melucuthakan kenderaan dan memulangkan kepada pemilik berdaftar kenderaan di bawah s. 36(2) Akta Bagi pihak tertuduh - Sukhaimi Mashud & MJ Pereira; T/n Teh Poh Teik & Co Bagi pihak pendakwaan - Nur Baiduri Mustakim, Timbalan Pendakwa Raya; Pejabat Penasihat Undang-Undang Negeri Johor
[2020] 1 LNS 39	MOHD FAIRUZ AHMAD LATIFFE v. PP Perintah Mahkamah yang menghendaki tertuduh untuk menjalani pemerhatian kali kedua untuk menentukan kelayakan tertuduh untuk dibicarakan adalah wajar dan menepati peruntukan s. 342 dan s. 343(3) Kanun Tatacara Jenayah. Justeru, bantahan tertuduh terhadap perintah Mahkamah tersebut dan permohonan tertuduh untuk dilepaskan yang tidak terjumlah kepada pembebasan terhadap semua pertuduhan adalah bersifat pra-matang. PROSEDUR JENAYAH: Pembelaan - Tertuduh mengalami masalah mental - Hakim mengeluarkan perintah untuk menghantar tertuduh untuk menjalani pemerhatian kali kedua di bawah s. 342 Kanun Tatacara Jenayah ('KTJ') - Tertuduh memfailkan permohonan untuk mengetepikan perintah yang dikeluarkan oleh Mahkamah dan memohon untuk dilepaskan tidak terjumlah kepada pembebasan atas semua pertuduhan - Sama ada perintah Mahkamah telah menepati peruntukan di bawah s. 342 dan s. 343(4) KTJ - Sama ada permohonan tertuduh adalah pra-matang Bagi pihak pemohon - Naranya Singh Asa Singh; T/n Naran Singh & Co. Bagi pihak responden - Tuan Mohd Nordin Ismail; Timbalan Pendakwa Raya
[2020] 1 LNS 44	NG PING PING (P) v. CHONG KOK KEONG (L) 1. Duty to provide maintenance of children is not the exclusive prerogative of a father upon dissolution of a marriage. Where both parties are gainfully employed with high income, both parties must share the cost of maintenance and education for the children in line with s. 92 of the Law Reform (Marriage and Divorce) Act 1976. 2. In assessing payment for maintenance on a monthly basis, expenses relating to yearly matters should not be treated as a monthly commitment. Expenses tabulated for consideration must be supported with cogent evidence and materials to attest to relevance and need for such expenses on a monthly basis. FAMILY LAW: Maintenance - Child - Claim for maintenance on a monthly basis relating to yearly matters - Bare tabulation of expenses - Both husband and wife were gainfully employed - Unreasonable and unsustainable claim for maintenance - Whether wife provided cogent evidence to attest to relevance and need for monthly expenses - Whether claim for reimbursement for insurance expenses should be allowed - Whether expenses relating to yearly matters could be treated as a monthly commitment - Whether parties must proportionately bear medical expenses of child - Law Reform (Marriage and Divorce) Act 1976, s. 92 FAMILY LAW: Maintenance - Wife - Right to claim for - Interim maintenance - Absence of court order requiring payment of any interim maintenance - Whether wife was entitled to enforce interim maintenance payment against husband in absence of any existing court order - Law Reform (Marriage and Divorce) Act 1976, s. 86 For the plaintiff wife - Piya Balakrishnan; M/s Shang & Co For the defendant husband - Tee Tai Tzian; M/s Tee Tai Tzian & Sim
[2020] 1 LNS 45	QQ TRADING SDN BHD v. HONG CHENG SEAFOOD SUPPLIES SDN BHD 1. Existence of a contract, its terms and the intentions of the parties are questions of fact which are to be decided by the court at the end of a trial and not merely based on affidavit evidence. 2. A party is not entitled to enter a summary judgment or strike out the pleadings of the other party after placing the other party to strict proof of certain averments made in the latter's pleadings. Where a party denies having knowledge of certain averments made by the other party in its pleading, the latter has the burden to prove through oral testimony of witnesses that the former has such knowledge. Such disputed averments should be resolved through oral testimony of witnesses during trial. CIVIL PROCEDURE: Summary judgment - Sale of goods - Issues to be tried - Claim for outstanding payments for prawns supplied - Defendant instructed bank to stop payment after discovering prawns supplied by plaintiff did not meet specification - Issue of total failure of consideration - Whether issue of total failure of consideration and interpretation of promise could only be determined during trial - Whether dispute as to kind and quality of prawns supplied could only be resolved by trial - Whether questions of fact could be decided based on affidavit evidence CIVIL PROCEDURE: Striking out - Counterclaim - Sale of goods - Claim for damages for loss suffered as a result of non-merchantable prawns supplied - Defendant suffered loss of business with exporters as prawns supplied by plaintiff did not meet specification - Plaintiff denied knowledge of business dealings of defendant with their exporters - Whether defendant has burden to prove plaintiff's knowledge on business dealings of defendant with exporters through oral testimony of witnesses - Whether plaintiff could strike out defendant's counterclaim after having specifically pleaded that defendant be put to strict proof of certain averments in defence and counterclaim - Whether counterclaim raises triable issues necessitating a trial For the plaintiff - Cheah Soo Chuan & Tay Yong Yi; Tay & Partners For the defendant - Zaidi Abdul Hamid; Zaidi & Associates
[2020] 1 LNS 63	AZADEGAN GOLARA lwn. PP Satu kes prima facie berkenaan pengedaran dadah berbahaya wujud setelah pihak pendakwaan membuktikan elemen pemilikan dengan pengetahuan walaupun hakim bicara tidak menggunapakai anggapan pengedaran di bawah s. 37(da) Akta Dadah Berbahaya 1952 terhadap tertuduh. Sabitan terhadap tertuduh adalah selamat walaupun hakim bicara telah tersilap kerana tidak menggunapakai anggapan pengedaran apabila kesilapan tersebut sebenarnya memihak kepada tertuduh. PROSEDUR JENAYAH: Rayuan - Rayuan terhadap sabitan - Pertuduhan pengedaran dadah berbahaya - Dadah dijumpai dalam kuantiti yang banyak tersembunyi di dalam beg yang dibawa oleh tertuduh - Hakim bicara tidak menggunapakai anggapan statutori di bawah s. 37(da) Akta Dadah Berbahaya 1952 ('ADB') dalam pembuktian pengedaran - Sama ada kes prima facie telah dibuktikan setelah pihak pendakwaan membuktikan elemen pemilikan dengan pengetahuan - Sama ada kesilapan hakim bicara yang tidak menggunapakai anggapan statutori di bawah s. 37(da) ADB sebenarnya memihak kepada tertuduh - Sama ada sabitan terhadap tertuduh adalah selamat PROSEDUR JENAYAH: Pembelaan - Penafian - Pertuduhan pengedaran dadah berbahaya - Dadah dijumpai dalam kuantiti yang banyak tersembunyi di dalam beg yang dibawa tertuduh - Tertuduh menafikan mengetahui kewujudan dadah di dalam beg - Sama ada penjelasan tertuduh adalah satu rekaan semata-mata - Sama ada pembelaan tidak mengetahui sama dengan pembelaan tidak mengedar Bagi pihak perayu pertama - Kitson Foong; T/n Kit & Associates Bagi pihak perayu kedua - Collin Andrew; T/n Collin's Law Chambers Bagi pihak pendakwa raya - Zaki Asyraf Zubir; Jabatan Peguam Negara

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CLJ 2021 Volume 5 (Part 2)

The courts focus on the conduct of the contracting parties to determine their contemplations before deciding when an agreement must be executed and completed or whether there is a breach of the duration of the agreement following a delay. Repeated extensions of time are evidence that contracting parties planned to continue with a particular agreement as such extensions show that the parties agreed to allow more time for the agreement to be completed.
Amzed Development Sdn Bhd v. Dato’ Mat Jahya Hussin & Anor [2021] 5 CLJ 149 [CA]

• SUBJECT
• CORAM
• COUNSEL

Taking into account the factors that the accused was not only a youthful offender but was also a first offender, not a hardcore criminal and that the accused had stabbed the deceased to death as a result of provocation, the failure of the trial judge to consider s. 293 of the Criminal Procedure Code to reduce the sentence, notwithstanding the trend of sentencing, based on the special facts of the case, had caused injustice to the accused.
Shrestha Sujan v. PP [2021] 5 CLJ 162 [CA]

• SUBJECT
• CORAM
• COUNSEL

A party is estopped from taking a position different from what was pleaded in its earlier suit or changing its stance in another action. The party's admissions in pleadings in the earlier suit would amount to judicial admissions admissible against it.
Syarikat Rodziah v. Malayan Banking Bhd [2021] 5 CLJ 170 [CA]

• SUBJECT
• CORAM
• COUNSEL

A defendant is perfectly entitled to challenge the evidence of the plaintiff's expert witness by way of cross-examination without him having to call his own experts; the evidence of an expert need not be challenged by the evidence of another expert. Notwithstanding that there is no expert witness called by a defendant, the trial judge is duty bound to consider the totality of the evidence of the plaintiff's expert witness, including evidence elicited from the expert under cross-examination.
UMW Toyota Motor Sdn Bhd & Anor v. Allan Chong Teck Khin & Anor [2021] 5 CLJ 193 [CA]

• SUBJECT
• CORAM
• COUNSEL

In determining the competency of an appeal, the court will consider the threshold requirement of whether leave to appeal is required and pursuant to s. 68(1)(a) of the Courts of Judicature Act 1964, no appeal should be brought without the leave of court where the value of the subject matter of the claim is less than RM250,000.
Zainudin Maksom v. Malaysia Building Society Bhd & Ors [2021] 5 CLJ 223 [CA]

• SUBJECT
• CORAM
• COUNSEL

The entertainment centre that was open for public visitation is a 'public place' for the purpose of an offence under s. 7 of the Common Gaming Houses Act 1953; thus one caught playing games on an unlicensed simulator machine, for money or money's worth, at an entertainment centre located in a shopping mall, is guilty of an offence under the section.
Lee Lye Poh v. PP & Other Appeals [2021] 5 CLJ 231 [HC]

• SUBJECT
• CORAM
• COUNSEL

(1) In the case of a late delivery of vacant possession, the burden of proof is on the developer to satisfy the courts on the resultant time impact of the cause and effect of force majeure event(s) vis-a-vis the whole basic works that needed to be done to deliver vacant possession. A layman rudimentary estimate of the developer's extension of time entitlement, which was in substance an impressionistic assessment, was inadequate to discharge the developer's required burden of proof to be excused for late delivery of vacant possession, rendering the developer liable to the plaintiffs for liquidated damages.
(2) When a developer has acted honestly, rationally and reasonably in constructing a crib wall alleged to have encroached into the plaintiffs' lot, and had complied with the road requirements of public authorities in the interest of public safety and had not contravened the development laws under the Housing Development (Control and Licensing) Act 1966, the plaintiffs' claim for loss and damages caused by the crib wall ought to be rejected. The plaintiffs also had not satisfactorily established that the term that the developer must not construct any structure on the land without the plaintiffs' prior acceptance and approval on the description and plans of the structure would be implied following the test enunciated by the Federal Court in Sababumi (Sandakan) Sdn Bhd v. Datuk Yap Pak Leong. In the absence of the implied term, there could not be a breach committed by the developer.
Ong Saut Mee & Ors v. Gasing Meridian Sdn Bhd [2021] 5 CLJ 249 [HC]

• SUBJECT
• CORAM
• COUNSEL

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LNS Article(s)

1. JUDICIAL SELECTION METHODS IN THE HIGHER COURTS:DO WE NEED A CHANGE? ^{[Read excerpt]}
   by Jenita Kanapathy* Dr. Nadhratul Wardah Salman** [2021] 1 LNS(A) lxiii

[2021] 1 LNS(A) lxiii



INTERNATIONAL

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JUDICIAL SELECTION METHODS IN THE HIGHER COURTS:
DO WE NEED A CHANGE?

by
Jenita Kanapathy*
Dr. Nadhratul Wardah Salman**

ABSTRACT

Around the world, the judicial selection method can be divided into four categories: selection of judges by the Head of State on advice of the executive, selection of judges by the Parliament or Legislative Assembly, selection of judges by public election and selection by the judicial council or judicial commission. The most common type of judicial selection in the world is Head of State on advice of the executive. The majority of Commonwealth countries, including Malaysia, have selected judges through this method based on recommendation from the Judicial Appointments Commission. This article provides an overview of the different types of methods of judicial selection adopted worldwide and discusses the best-fit method for Malaysia to emulate in the selection of judges to the higher courts.

. . .

*Ms. Jenita Kanapathy is a Senior Lecturer at Taylor's Law School. She graduated from University of Malaya with a LLB honours degree in 2001 and was admitted to the Malaysian Bar the following year. Her professional career as a litigation lawyer spanned over 10 years. In 2012, she completed her Masters in Law in University Malaya. In the same year, Ms. Jenita joined Taylor's University as a law lecturer in pursuit of her passion for teaching. In 2019, she was elevated to the position of Senior Lecturer. Ms. Jenita has published numerous papers relating to Public Law, Human Rights and Labour & Industrial Relations Laws. She also contributed a chapter in a book entitled "Elder Abuse and Neglect in selected Asian Countries" published in 2019. Ms Jenita has also presented many papers in both local and international conferences. She is currently pursuing her PhD in Law at her alma mater.

** Dr. Nadhratul Wardah Salman graduated with a Bachelor of Laws from the International Islamic University, Malaysia in 1995 and subsequently pursued Master in Sports Policy at Leeds Metropolitan University, UK. She went on to do her Master of Laws (LL.M) at the University of Malaya, Malaysia. In 2005, she completed her Ph.D. in Sports Law at Manchester Metropolitan University, UK. She is currently serving as a Senior Lecturer as well as holding an administrative position as the Deputy Dean at the Faculty of Law, University of Malaya. Her areas of teaching and research include Sports Law, Law of Tort, Malaysian Legal System, Fundamental Liberties and Community Engagement.

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2. THE COCA-COLA COMPANY & SUBSIDIARIES, PETITIONER V. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT* ^{[Read excerpt]}
   by Sharon Lau Foong Yee [2021] 1 LNS(A) lxiv

[2021] 1 LNS(A) lxiv



MALAYSIA

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THE COCA-COLA COMPANY & SUBSIDIARIES, PETITIONER V. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT*

by
Sharon Lau Foong Yee

In this article, Sharon Lau Foong Yee reviews the decision of the United States Tax Court in the case of the Coca-Cola Company & Subsidiaries, Petitioner v. Commissioner of Internal Revenue, Respondent.^[1]

Introduction

In November 2020, the United States Tax Court (“USTC”) decided in favour of the Internal Revenue Service (“IRS”) against the Coca-Cola Company (“Coca-Cola”) on certain transfer pricing issues, resulting in an additional tax payment of more than USD 3.3 billion.

Facts

The Coca-Cola Company and its US subsidiaries (collectively referred to as the "Petitioner") have foreign manufacturing affiliates ("Supply Points") which sold and distributed concentrate to hundreds of Coca-Cola bottlers in Europe, Africa and Asia ("Bottlers"). The Supply Points produced concentrate of syrups, flavourings and other ingredients used in the production of the Petitioner's beverages.

. . .

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

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3. REGULATING BIG DATA IN THE MALAYSIAN E-COMMERCE INDUSTRY: A TAP INTO THE HORIZON ^{[Read excerpt]}
   by Nurul Sahira Binti Kamal Azwan^[i] Atiqah Binti Azman^[ii] Nur Shaura Azrin Binti Azman^[iii] Sherie Aneesa Binti Johary Al Bakry^[iv] Wan Nur Afiqah Binti Wan Daud^[v] Hartini Saripan^[vi] Nurus Sakinatul Fikriah Mohd Shith Putera^[vii] [2021] 1 LNS(A) lxv

[2021] 1 LNS(A) lxv



MALAYSIA

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REGULATING BIG DATA IN THE MALAYSIAN E-COMMERCE INDUSTRY:
A TAP INTO THE HORIZON

by
Nurul Sahira Binti Kamal Azwan^[i]
Atiqah Binti Azman^[ii]
Nur Shaura Azrin Binti Azman^[iii]
Sherie Aneesa Binti Johary Al Bakry^[iv]
Wan Nur Afiqah Binti Wan Daud^[v]
Hartini Saripan^[vi]
Nurus Sakinatul Fikriah Mohd Shith Putera^[vii]

Abstract

With the advancement of science and technology, Big Data has been used widely to store, process and interpret huge volumes of data as a way to increase productivity of a company. Big Data becomes the catalyst in the e-Commerce industry where it is capable of revealing information, including unknown correlations, market trends, hidden patterns and customer preferences that can facilitate business owners to make informed business decisions. Nevertheless, due to the uncertainty of Big Data features and capabilities, it has caused risks to data users such as leakage of the data users' personal information online as result of the data breaches in dealing with a huge volume of data and also the risk of being exposed to cyber threats. In addressing the legal risks of Big Data, the drafting of a specific legislation is called for that centres around its technological abilities, operations as well as embedding the accurate governance criteria and the relevant model. This research is to initiate improvement to the legislative framework for Big Data in the e-Commerce industry.

. . .

[i] - [vii] Faculty of Law, Universiti Teknologi MARA, 40450, Shah Alam, Malaysia serakamal1998@gmail.com

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4. ISLAMIC ETHICAL PILLARS IN DEVELOPING TECHNOLOGICAL CULTURE* ^{[Read excerpt]}
   by Ahmad Badri bin Abdullah [2021] 1 LNS(A) lxvi

[2021] 1 LNS(A) lxvi



MALAYSIA

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ISLAMIC ETHICAL PILLARS IN DEVELOPING TECHNOLOGICAL CULTURE*

by
Ahmad Badri bin Abdullah

Adapting to current technological realities demands Muslims to develop active socio-cultural responses capable of guiding technological development and the selection of appropriate technological possibilities. This is because technology is undeniably value-laden, not least because it directly relates to a set of purposes or values held by its creators. For Amina Raquib, technology reinforces human responsibility to weigh the worth of values informing design. Failing to do so, she argues, will lead to a technological imperative, which will determine our purposes and enforce its own values upon us, becoming autonomous and self-perpetuating, more so in the case of artificial intelligence (AI). Therefore, Muslims need to develop a technological culture that supports freedom of choice based on Islamic conceptions of human well-being and progress.

. . .

* Published with kind permission of the International Institute of Advanced Islamic Studies (IAIS) Malaysia. (www.iais.org.my).

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