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Issue #2/2021
14 January 2021
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New This Week
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LEOPAD HOLDINGS SDN BHD v.
ASIAN SHIELD WAREHOUSING SDN BHD & ANOTHER APPEAL [2021] 1 CLJ 328
COURT OF APPEAL, PUTRAJAYA
AHMADI ASNAWI JCA; AB KARIM AB JALIL JCA; SURAYA OTHMAN JCA
[CIVIL APPEALS NO: B-02(IM)(NCVC)-1977-09-2018 & B-02(IM)(NCVC)-1978-09-2018]
20 DECEMBER 2019
A contributory of a wound up company who is an undischarged bankrupt has the locus to seek the sanction of the Director General of Insolvency for the company to commence an action against a defendant without the need to obtain any prior sanction of the DGI to do so, and in obtaining such sanction, cannot be said to have offended s. 38(1)(d) of the Bankruptcy Act/Insolvency Act 1967 which barred him from 'directly or indirectly taking part in the management of the company'. There is firstly no clear requirement in the 1967 Act or the Companies (Winding-up) Rules 1972 or the Companies Act 2016 that a bankrupt is required to apply for sanction first before he can apply for sanction for the wound up company to commence an action, Secondly, the management of a company upon a winding-up is taken over by the liquidator entirely to the exclusion of the previous management or the Board of Directors who were rendered functus officio. And thirdly, taking s. 38(1)(d) in the context if its setting, the company in which such contributory is said to be directly or indirectly concerned or be taking part in its management, must refer to a going concern or a solvent company, and not a company which has already been wound up.
COMPANY LAW: Liquidation - Company wound up - Undischarged bankrupt - Undischarged bankrupt as concerned contributory sought sanction to enable company to commence civil proceedings - Whether undischarged bankrupt ought to obtain prior sanction of Director General of Insolvency to directly or indirectly take part in management of company in liquidation - Whether entire board of directors ceased and became functus officio once company wound up - Whether entire management and running of wound up company in hands of liquidator - Whether undischarged bankrupt had locus - Whether undischarged bankrupt had competency to apply for sanction - Insolvency Act 1967, s. 38(1)(d) - Companies Act 2016, ss. 2, 486, 492 & 503
COMPANY LAW: Winding up - Liquidation - Concerned contributory - Undischarged bankrupt as concerned contributory sought sanction to enable company to commence civil proceedings - Whether undischarged bankrupt ought to obtain prior sanction of Director General of Insolvency to directly or indirectly take part in management of company in liquidation - Whether entire board of directors ceased and became functus officio once company wound up - Whether entire management and running of wound up company in hands of liquidator - Whether undischarged bankrupt had locus - Whether undischarged bankrupt had competency to apply for sanction - Insolvency Act 1967, s. 38(1)(d) - Companies Act 2016, ss. 2, 486, 492 & 503
MOHD SAIFUDDIN AB RAHMAN v. PP & ANOTHER APPEAL [2021] 1 CLJ 343
COURT OF APPEAL, PUTRAJAYA
KAMALUDIN MD SAID JCA; AZIZAH NAWAWI JCA; NORDIN HASSAN JCA
[CRIMINAL APPEALS NO: W-05(SH)-205-04-2018 & W-05(SH)-214-04-2018]
13 OCTOBER 2020
A judge trying a case of trafficking in dangerous drugs under s. 39B(1) of the Dangerous Drugs Act 1952, upon a proper interpretation of s. 39B(2A) of the Act, and in particular upon satisfying paragraph (d) thereof, may impose the sentence of imprisonment for life and 15 strokes of whipping on the accused instead of a death sentence; bearing in mind the word 'only' before the said paragraphs (a), (b), (c) and (d), the power of the court to impose the alternative sentence is to be exercised only in regard to the circumstances specified therein and not in any other circumstances; and bearing in mind too that paragraphs (a), (b), or (c) of s. 39B(2A) should be read disjunctively to each other but conjunctively with the mandatory requirement of paragraph (d), with the result that the condition in paragraph (d) must first be satisfied before the discretion to impose the sentence of life imprisonment under the section can be invoked. The condition for para (d)'s application is that the convicted person had assisted the enforcement agency in disrupting drug trafficking activities within or outside Malaysia. Here, no evidence was adduced that the appellant had assisted the enforcement agency in disrupting drug trafficking activities within or outside Malaysia and therefore, no certificate by the Public Prosecutor was produced to that effect. Clearly the requirement of s. 39B(2A) DDA had not been fulfilled for the imposition of imprisonment for life and 15 strokes of whipping, and the trial judge was wrong in opting to exercise his discretion under this provision. The sentence is hence replaced with a death sentence.
CRIMINAL PROCEDURE: Appeal - Appeal against conviction and sentence - Accused convicted for offence of drug trafficking - 4,045g cannabis found in carrier basket of motorcycle - Accused sentenced to life imprisonment and 15 strokes of whipping - Whether prosecution proved element of possession of drugs - Whether knowledge of drugs could be inferred - Whether defence probable and adequately considered - Whether investigation complete and proper - Whether conviction and sentence safe - Whether ought to be set aside - Dangerous Drugs Act 1952, ss. 39B(1)(a), 39B(2) & 39B(2A)(c)
CRIMINAL PROCEDURE: Appeal - Appeal against sentence - Appeal by prosecution - Accused convicted for offence of drug trafficking - 4,045g cannabis found in carrier basket of motorcycle - Accused sentenced to life imprisonment and 15 strokes of whipping - Whether trial judge could exercise discretion in sentencing - Whether discretion exercised correctly - Whether accused satisfied requirement under s. 39B(2A) of Dangerous Drugs Act 1952 for trial judge to exercise discretion - Whether accused ought to be sentenced to death
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Sinar Mudah Sdn Bhd & Anor v . Ramasamy Muthusamy & Anor [2019] 1 LNS 772 (CA) overruling in part the High Court case of Sinar Mudah Sdn Bhd & Anor v. Ramasamy Muthusamy & Anor [2017] 1 LNS 162
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Kumaresan Nadarajan v. PP [2019] 1 LNS 715 (CA) affirming the High Court case of PP v. Kumaresan Nadarajan [Criminal Trial No: 45B-28-06/2015]
Legal Network Series
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AW LEY TENG & SATU LAGI lwn. ASHOK KUMAR VIJAYAN 1. Motorkar defendan yang bergerak dari atas dan ingin membelok ke kiri untuk masuk ke simpang jalan perlu memberi keutamaan laluan kepada kenderaan yang bergerak dari bawah menghala ke atas. Apabila defendan membelok ke kiri jalan dan melanggar plaintif yang mempunyai hak laluan utama, maka defendan adalah bertanggungan cuai 100% dalam kemalangan. 2. Apabila hakim bicara memberikan awad bagi ganti rugi yang melebihi hujahan kedua-dua peguam plaintif dan defendan, maka ganti rugi yang diberikan adalah melampau dan mahkamah rayuan wajar menggantikan awad tersebut kepada satu nilai yang adil dan munasabah. LALULINTAS JALAN: Kecuaian - Kemalangan jalan raya - Penentuan liabiliti - Perlanggaran antara motorsikal dan motorkar - Motorkar defendan melanggar motorsikal plaintif ketika masuk ke simpang - Sama ada plaintif mempunyai hak laluan utama berbanding defendan - Sama ada motorkar defendan perlu berhenti dan memberi laluan kepada plaintif dan kenderaan-kenderaan lain untuk berlalu terlebih dahulu sebelum membelok - Sama ada defendan telah berlaku cuai ketika membelok untuk masuk ke simpang - Sama ada pemandu motorkar adalah bertanggungan cuai 100% dalam kemalangan GANTI RUGI: Kuantum - Rayuan - Kecederaan diri - Hakim bicara memberikan awad RM40,000 bagi kecederaan 'Fracture of the right 2nd, 3rd, 4th, 5th, 6th, 7th and 8th ribs with pneumothorax' - Hakim bicara memberikan awad melebihi nilai yang dihujah oleh kedua-dua peguam plaintif dan defendan - Sama ada awad yang diberikan adalah melampau - Sama ada awad RM28,000 adalah adil dan munasabah GANTI RUGI: Kuantum - Rayuan - Kos pembedahan masa hadapan - Hakim bicara telah menolak 1/3 daripada jumlah keseluruhan kos pembedahan masa hadapan - Sama ada hakim bicara telah mengambil kira pembedahan masa depan yang boleh dibuat di hospital kerajaan yang mana kosnya adalah murah - Sama ada awad yang diberikan adalah melampau
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PP lwn. KHTIKE PHOKRAJAN 1. Warga asing wajib mematuhi dan menghormati undang- undang keras Malaysia mengenai pemilikan dadah. Justeru, kepentingan awam menghendaki hukuman yang lebih berat dijatuhkan ke atas pesalah warga asing yang terlibat dalam kesalahan pemilikan dadah berbahaya. 2. Pengakuan bersalah tertuduh dan rayuan peringanan hukuman perlu diseimbangkan dengan faktor kepentingan awam, berat dadah yang terlibat serta niat parlimen semasa meminda s. 39A(2) Akta Dadah Berbahaya 1952 ('ADB') dalam menentukan hukuman yang setimpal dan wajar bagi kesalahan di bawah s. 12(2) ADB. PROSEDUR JENAYAH: Hukuman - Peringanan - Penyalahgunaan dadah berbahaya - Pertuduhan di bawah s. 12(2) Akta Dadah Berbahaya 1952 - Pengakuan bersalah pada hari pertama perbicaraan - Pesalah warga asing - Sama ada hukuman yang lebih berat wajar dijatuhkan ke atas warga asing yang tidak menghormati undang-undang keras - Sama ada faktor peringanan tertuduh perlu diseimbangkan dengan faktor kepentingan awam PROSEDUR JENAYAH: Penghukuman - Keseimbangan hukuman - Pengakuan bersalah - Tertuduh telah mengaku bersalah atas pertuduhan pilihan bagi kesalahan di bawah s. 12(2) Akta Dadah Berbahaya 1952 yang boleh dihukum di bawah s. 39A(2) - Sama ada pengakuan bersalah dan rayuan peringanan hukuman wajar diseimbangkan dengan faktor kepentingan awam, berat dadah yang terlibat serta niat parlimen semasa meminda s. 39A(2)
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CONCRETE PARADE SDN BHD v. ACE INVESTMENT BANK LIMITED The Court has no jurisdiction to grant an injunction under s. 360 of the Capital Markets and Services Act 2007 to restrain the defendant from voting or exercising any rights attached to its shares when the plaintiff has not shown that its legal rights or interests would be adversely affected if the defendant is allowed to exercise its voting rights. COMPANY LAW: Member's rights - Shareholders - Injunction to restrain propriety right - Application for injunction to restrain shareholder from voting or exercising any rights attached to shares pending compliance with securities commission's directions - Application under s. 360(1) & (2) of Capital Markets and Services Act 2007 ('CMSA') - Whether Court has jurisdiction and power to grant injunction prayed for - Whether plaintiff was an aggrieved person under s. 360 of CMSA - Whether there was legal basis to restrain defendant - Whether defendant was a transient shareholder
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MOHAMAD FAIZUL JEFFREN v. MSIG INSURANCE (MALAYSIA) BERHAD Where the insurer had regularly obtained an order before a High Court to declare the insurance policy as void and unenforceable and the third party had been given the right to be heard in the said proceedings, any action commenced by the said third party in another High Court to set aside the regularly obtained order in the previous proceedings amounts to an abuse of court process and such an action ought to be struck out. CIVIL PROCEDURE: Striking out - Action - Action to set aside another High Court's order obtained by insurer to declare insurance policy void and unenforceable - Setting aside of regularly obtained order - Whether plaintiff could apply to set aside an order of another High Court which was regularly obtained - Whether plaintiff's action was an abuse of court process and ought to be struck out CIVIL PROCEDURE: Judgment and orders - Setting aside - Action to set aside another High Court's order obtained by insurer to declare insurance policy void and unenforceable - Application filed by third party - Third party's application to intervene in previous proceedings dismissed by High Court and affirmed by Court of Appeal - Whether third party had been given right to be heard in earlier proceeding - Whether order obtained in earlier proceeding was good and valid - Whether plaintiff could apply to set aside an order of another High Court which was regularly obtained
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MIKAIL TAN ABDULLAH v. PP Additional statutory declarations and police reports lodged by complainants to retract complaints against the accused on the basis that the earlier reports were lodged as a result of a misunderstanding can be taken into consideration during an appeal. Upon admission of such evidence, the appellate court may exercise its discretion to reverse the finding and sentence of the trial court and acquit or discharge the accused. CRIMINAL PROCEDURE: Appeal - Appeal against conviction and sentence - Discretion of appellate court - Order to take further evidence - Offence of voluntarily causing hurt - Domestic abuse - Statutory declarations and police reports of complainants stating earlier reports were lodged as a result of misunderstanding tendered during hearing of appeal - Complainant willingly and voluntarily retracting earlier police reports during appeal stage - Whether latest statutory declarations and police report ought to be allowed - Whether there was no case against accused - Whether conviction and sentence ought to be reversed - Criminal Procedure Code, ss. 316(b) & 317
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CLJ 2021 Volume 1 (Part 3)
Order O. 27 r. 3 Rules of Court 2012 which permits a party to apply for final judgment of the relief sought in the claim is predicated upon the rationale that a speedy judgment will obviate delay and save unnecessary expense, and is justifiable if the other party has made a plain admission as would entitle the former to succeed in his claim; it also does not matter, in this respect, that any such admission was made in the pleading or otherwise as admission may be implied from the circumstances of the case. This said, the facts admitted must however be identified with clarity, and must be unambiguous, unconditional and unequivocal; the court will not allow a final judgment to be entered if there is a serious question of law or fact to be argued.
Kawan Lama Builders Sdn Bhd & Anor v. Syarikat Lumut Quarry Sdn Bhd [2021] 1 CLJ 313 [CA]
CIVIL PROCEDURE: Judgment - Admission - Application for judgment or order on admission of facts - Whether admissions must be clear, unequivocal and unambiguous - Whether triable issues raised for full trial - Rules of Court 2012, O. 27 r. 3
HAMID SULTAN ABU BACKER JCA
HANIPAH FARIKULLAH JCA
KAMALUDIN MD SAID JCA
- For the appellants - Adrian Silvarajoo; M/s Ramli Yusuff & Co
- For the respondent - Nanda Suppiah; M/s A M Ong & Partners
A contributory of a wound up company who is an undischarged bankrupt has the locus to seek the sanction of the Director General of Insolvency for the company to commence an action against a defendant without the need to obtain any prior sanction of the DGI to do so, and in obtaining such sanction, cannot be said to have offended s. 38(1)(d) of the Bankruptcy Act/Insolvency Act 1967 which barred him from 'directly or indirectly taking part in the management of the company'. There is firstly no clear requirement in the 1967 Act or the Companies (Winding-up) Rules 1972 or the Companies Act 2016 that a bankrupt is required to apply for sanction first before he can apply for sanction for the wound up company to commence an action, Secondly, the management of a company upon a winding-up is taken over by the liquidator entirely to the exclusion of the previous management or the Board of Directors who were rendered functus officio. And thirdly, taking s. 38(1)(d) in the context if its setting, the company in which such contributory is said to be directly or indirectly concerned or be taking part in its management, must refer to a going concern or a solvent company, and not a company which has already been wound up.
Leopad Holdings Sdn Bhd v. Asian Shield Warehousing Sdn Bhd & Another Appeal [2021] 1 CLJ 328 [CA]
COMPANY LAW: Liquidation - Company wound up - Undischarged bankrupt - Undischarged bankrupt as concerned contributory sought sanction to enable company to commence civil proceedings - Whether undischarged bankrupt ought to obtain prior sanction of Director General of Insolvency to directly or indirectly take part in management of company in liquidation - Whether entire board of directors ceased and became functus officio once company wound up - Whether entire management and running of wound up company in hands of liquidator - Whether undischarged bankrupt had locus - Whether undischarged bankrupt had competency to apply for sanction - Insolvency Act 1967, s. 38(1)(d) - Companies Act 2016, ss. 2, 486, 492 & 503
COMPANY LAW: Winding up - Liquidation - Concerned contributory - Undischarged bankrupt as concerned contributory sought sanction to enable company to commence civil proceedings - Whether undischarged bankrupt ought to obtain prior sanction of Director General of Insolvency to directly or indirectly take part in management of company in liquidation - Whether entire board of directors ceased and became functus officio once company wound up - Whether entire management and running of wound up company in hands of liquidator - Whether undischarged bankrupt had locus - Whether undischarged bankrupt had competency to apply for sanction - Insolvency Act 1967, s. 38(1)(d) - Companies Act 2016, ss. 2, 486, 492 & 503
AHMADI ASNAWI JCA
AB KARIM AB JALIL JCA
SURAYA OTHMAN JCA
- For the appellant - Cecil Abraham, Sunil Abraham, Paul Ong Teng Kek & Gabriel Daniel; M/s Paul Ong & Assocs
- For the respondent - S Ravichandran & Lee Shu Min; M/s Seah Balan Ravi & Co
A judge trying a case of trafficking in dangerous drugs under s. 39B(1) of the Dangerous Drugs Act 1952, upon a proper interpretation of s. 39B(2A) of the Act, and in particular upon satisfying paragraph (d) thereof, may impose the sentence of imprisonment for life and 15 strokes of whipping on the accused instead of a death sentence; bearing in mind the word 'only' before the said paragraphs (a), (b), (c) and (d), the power of the court to impose the alternative sentence is to be exercised only in regard to the circumstances specified therein and not in any other circumstances; and bearing in mind too that paragraphs (a), (b), or (c) of s. 39B(2A) should be read disjunctively to each other but conjunctively with the mandatory requirement of paragraph (d), with the result that the condition in paragraph (d) must first be satisfied before the discretion to impose the sentence of life imprisonment under the section can be invoked. The condition for para (d)'s application is that the convicted person had assisted the enforcement agency in disrupting drug trafficking activities within or outside Malaysia. Here, no evidence was adduced that the appellant had assisted the enforcement agency in disrupting drug trafficking activities within or outside Malaysia and therefore, no certificate by the Public Prosecutor was produced to that effect. Clearly the requirement of s. 39B(2A) DDA had not been fulfilled for the imposition of imprisonment for life and 15 strokes of whipping, and the trial judge was wrong in opting to exercise his discretion under this provision. The sentence is hence replaced with a death sentence.
Mohd Saifuddin Ab Rahman v. PP & Another Appeal [2021] 1 CLJ 343 [CA]
CRIMINAL PROCEDURE: Appeal - Appeal against conviction and sentence - Accused convicted for offence of drug trafficking - 4,045g cannabis found in carrier basket of motorcycle - Accused sentenced to life imprisonment and 15 strokes of whipping - Whether prosecution proved element of possession of drugs - Whether knowledge of drugs could be inferred - Whether defence probable and adequately considered - Whether investigation complete and proper - Whether conviction and sentence safe - Whether ought to be set aside - Dangerous Drugs Act 1952, ss. 39B(1)(a), 39B(2) & 39B(2A)(c)
CRIMINAL PROCEDURE: Appeal - Appeal against sentence - Appeal by prosecution - Accused convicted for offence of drug trafficking - 4,045g cannabis found in carrier basket of motorcycle - Accused sentenced to life imprisonment and 15 strokes of whipping - Whether trial judge could exercise discretion in sentencing - Whether discretion exercised correctly - Whether accused satisfied requirement under s. 39B(2A) of Dangerous Drugs Act 1952 for trial judge to exercise discretion - Whether accused ought to be sentenced to death
KAMALUDIN MD SAID JCA
AZIZAH NAWAWI JCA
NORDIN HASSAN JCA
- For the appellant - Shah Rizal & Nik Muammer Hurrie; M/s Shah & Hurrie
- For the respondent - Nurul Farhana Khalid; DPP
A retrenchment exercise on the ground of redundancy carried out by an employer without providing any reasonable justification for treating the employee's position as redundant coupled with a failure to adhere to the principle of Last-In First-Out may render the termination of employment without any just cause and excuse; redundancy may also not be justified and be seen as mala fide where the employee's position is replaced with a new one post his retrenchment.
Ng Chang Seng v. Technip Geoproduction (M) Sdn Bhd & Anor [2021] 1 CLJ 365 [CA]
LABOUR LAW: Employment - Retrenchment - Claimant worked with company for 13 years before being retrenched on ground of redundancy - Whether company followed Last-In First-Out principle - Whether retained employees had special skills and expertise not found in claimant - Whether termination actuated by irrelevant considerations - Whether retrenchment exercise bona fide - Whether termination on ground of retrenchment arising out of redundancy was for just cause or excuse
HANIPAH FARIKULLAH JCA
LEE SWEE SENG JCA
CHE MOHD RUZIMA GHAZALI JCA
- For the appellant - Anthony Gomez; M/s Gomez Assocs
- For the respondent - Poh Kuang Horng & Siva Subramaniam; M/s T Siva & Co
Where deep animosity exists between parties claiming rights to a deceased's estate, it is appropriate to appoint a third party neutral person to handle the said estate's assets, both disputed and undisputed, in order to preserve and manage the same. Such preservation would pre-eminently be achieved by the appointment of an administrator pendente lite. Where there is a claim to title or ownership with respect to assets which are allegedly said to form part of a deceased's estate, then the scope of the administrator pendente lite's jurisdiction would necessarily encompass these disputed assets as well, although they were at one time, but are no longer, in the name of the deceased.
Tan Boon Thien & Anor v. Tan Poh Lee & Ors (No 2) [2021] 1 CLJ 391 [CA]
SUCCESSION: Administration of estates - Appointment of administrator pendente lite - Scope of administrator pendente lite's jurisdiction - Preservation of disputed and undisputed assets of estate - Whether administrator pendente lite could only be appointed in respect of estate in ongoing probate action - Whether there was proper object or necessity to justify appointment - Whether High Court correct in exercising discretion to make order for appointment of administrator pendente lite
UMI KALTHUM ABDUL MAJID JCA
S NANTHA BALAN JCA
MOHD SOFIAN ABD RAZAK J
- For the 1st appellant - Vijaya Segaran, Norazali Nordin, Alicia Lee & Teoh Kean Guan; M/s Lee & Assocs
- For the 2nd appellant - Gopal Sri Ram, Yasmeen Soh, Felix Saw, Hanan Kamal; M/s Arthur Wang, Lian & Assocs
- For the 1st respondent - Michael Chow, Sunita Sankey, Wendy Yeong, Surachetth Jotsuwan; M/s Liza Khan & Sankey
- For the 2nd & 3rd respondents - Ng Thiang Tuan, Keith Kwan Tjee Kin & Sarah Reshmi Felix; M/s Tuan, Mohd Zain & Co
- For the stakeholder - Nicole Wee & Ling Li Ching; M/s Chooi & Company + Cheang & Ariff
- For the administrator pendente lite (Lim Tian Huat) - Renu Zachariah; M/s Rosley Zechariah
A revision of a court's decision is a step in aid, not a continuation of the trial or appeal. There should not be any impediment for the application to be filed, even when there is an appeal pending, provided that the application is made bona fide to correct a miscarriage of justice.
Ooi Hun Seng v. PP [2021] 1 CLJ 413 [HC]
CRIMINAL PROCEDURE: Revision - Revision of conviction and sentence - Application for - Applicant raised issues challenging legality of conviction - Whether court functus officio - Whether revision could be filed when there is appeal pending - Whether revision a step in aid and not continuation of trial appeal - Whether there was miscarriage of justice
MOHD RADZI ABDUL HAMID JC
- For the appellant - Baldev Singh Bhar; M/s Syarikat Baldev Bhar
- For the respondent - Yasinnisa Begam Seeni Mohideen; DPP
(1) In a judicial review application, where the crux of the declaratory order sought by the applicant directly challenges the power of the State Legislature in passing an impugned section which had allegedly encroached its legislative boundary, such challenge, which fell under art. 4(3)(b) of the Federal Constitution, must be commenced with the leave of the Judge of the Federal Court.
(2) The power of the State Legislature of Sabah and Sarawak to make law imposing sales tax is not meant to be confined to the matters enumerated in the State List. As such, the State Sales Tax (Taxable Goods and Rate of Tax) (Amendment) (No 2) Order 2018 is constitutional and valid. The power of the State Legislation to enact the State Sales Tax Ordinance comes with the power to make provisions to spell out the mechanics upon which that law may be implemented. This would include the power to define the word 'sale' or stipulating the date when the sales tax is due or when the sale takes place. All this would enable the State to exercise its power within the authority of the law.
Petroliam Nasional Bhd (Petronas) v. Comptroller Of State Sales Tax, Sarawak & Ors [2021] 1 CLJ 430 [HC]
ADMINISTRATIVE LAW: Exercise of judicial functions - Judicial review - Application for - Jurisdictional points raised on declaratory reliefs sought for - Applicant challenged legislative power of State to impose sales tax on petroleum product - Whether court had jurisdiction to grant declarations sought - Whether wrong party named in suit - Whether acts of Comptroller of State Sales Tax irrational, unreasonable or disproportionate
CONSTITUTIONAL LAW: Federal and State laws - Constitutionality - Imposition of sales tax on petroleum product - Whether State Legislature of Sarawak empowered to impose sales tax on petroleum product as envisaged by impugned section of the State Sales Tax Ordinance - Whether State Sales Tax (Taxable Goods and Rate of Tax) (Amendment) (No 2) Order 2018 constitutional and valid - Power of State Legislature to enact State Sales Tax Ordinance
AZHAHARI KAMAL RAMLI J
- For the applicant - Malik Imtiaz & Alvin Chong; M/s Idris, Alvin Chong & Partners Advocs
- For the respondents - JC Fong, Talat Mahmood, Abdul Rashid, Saferi Ali, Nur Azhar Bujang & Voon Yan Sin; State Legal Officers, Kuching
CLJ Article(s)
SOME THOUGHTS ON THE FEDERAL CONSTITUTION IN RELATION TO OFFENCES AGAINST THE PRECEPTS OF THE RELIGION OF ISLAM [Read excerpt]
by DATO' SERI MOHD HISHAMUDIN YUNUS* [2021] 1 CLJ(A) i
LNS Article(s)
THE WITHDRAWAL OR WITHHOLDING OF LIFE-SUSTAINING TREATMENT: THE FUTURE IN MALAYSIA [Read excerpt]
by Loh Kah Hey* Dr Mohammad Firdaus Bin Abdul Aziz** [2021] 1 LNS(A) vHOW 'CRUEL' SHARIAH ACTUALLY IS?--DEMYSTIFYING THE SHARIAH BASICS [Read excerpt]
by Nabeela Jamil* [2021] 1 LNS(A) viTHE GOVERNING LAW OF SULH AND MEDIATION IN MALAYSIA: AN ANALYSIS[1] [Read excerpt]
by Asma Hakimah binti Ab Halim* Siti Naaishah binti Hambali** [2021] 1 LNS(A) vii
Principal Acts
| Number | Title | In force from | Repealing |
| ACT 831 | Finance Act 2020 | The Income Tax Act 1967 [Act 53] see s 3, the Real Property Gains Tax Act 1976 [Act 169] see s 31, the Stamp Act 1949 [Act 378] see s 39, the Petroleum (Income Tax) Act 1967 [Act 543] see s 51, the Labuan Business Activity Tax Act 1990 [Act 445] see s 55, the Finance Act 2012 [Act 742] see s 63 and the Finance Act 2018 [Act 812] see s 65 | - |
| ACT 830 | Temporary Measures For Government Financing (Coronavirus Disease 2019 (COVID-19)) Act 2020 | 27 February 2020 until 31 December 2022 except s 3; 26 October 2020 until 31 December 2022 - s 3 | - |
| ACT 829 | Temporary Measures For Reducing The Impact of Coronavirus Disease 2019 (COVID-19) Act 2020 | Part I - 23 October 2020 (shall continue for a period of two years); Part II, Part III (Limitation Act 1953), Part IV (Sabah Limitation Ordinance), Part V (Sarawak Limitation Ordinance), Part VI (Public Authorities Protection Act 1948), Part IX (Consumer Protection Act 1999), Part X (Distress Act 1951) - 18 March 2020 until 31 December 2020; Part VII (Insolvency Act 1967) - 23 October 2020 until 31 August 2021; Part VIII (Hire-Purchase Act 1967) - 1 April 2020 until 31 December 2020; Part XI (Housing Development (Control and Licensing) Act 1966), Part XII (Industrial Relations Act 1967), Part XIII (Private Employment Agencies Act 1981), Part XIX - 18 March 2020; Part XIV (Land Public Transport Act 2010), Part XV (Commercial Vehicles Licensing Board Act 1987) - 1 August 2020 until 31 December 2021; Part XVI (Courts of Judicature Act 1964), Part XVII (Subordinate Courts Act 1948), Part XVIII (Subordinate Courts Rules Act 1955) - 18 March 2020 until 23 October 2020 (shall continue for a period of two years) | - |
| ACT 828 | National Land Code (Revised 2020) | 15 October 2020 pursuant to paragraph 6(1)(xxiii) of the Revision of Laws Act 1968 [Act 1]; Revised up to 14 October 2020; First enacted in 1965 as Act of Parliament No 56 of 1965 | - |
| ACT 827 | Currency Act 2020 | 1 October 2020 [PU(B) 476/2020] | - |
Amending Acts
| Number | Title | In force from | Principal/Amending Act No |
| ACT A1632 | Service Tax (Amendment) Act 2020 | 1 January 2021 [PU(B) 716/2020] | ACT 807 |
| ACT A1631 | Sales Tax (Amendment) Act 2020 | 1 January 2021 [PU(B) 715/2020] | ACT 806 |
| ACT A1630 | Free Zones (Amendment) Act 2020 | 1 January 2021 [PU(B) 719/2020] | ACT 438 |
| ACT A1629 | Excise (Amendment) Act 2020 | 1 January 2021 [PU(B) 718/2020] | ACT 176 |
| ACT A1628 | Customs (Amendment) Act 2020 | 1 January 2021 [PU(B) 717/2020] | ACT 235 |
PU(A)
| Number | Title | Date of Publication | In force from | Principal/ Amending Act No |
| PU(A) 11/2021 | Prevention and Control of Infectious Diseases (Compounding of Offences) (Amendment) Regulations 2021 | 12 January 2021 | 13 January 2021 | PU(A) 327/1993 |
| PU(A) 10/2021 | Prevention and Control of Infectious Diseases (Measures Within Infected Local Areas) (Recovery Movement Control) Regulations 2021 | 12 January 2021 | 13 January 2021 to 31 March 2021 | ACT 342 |
| PU(A) 9/2021 | Prevention and Control of Infectious Diseases (Measures Within Infected Local Areas) (Conditional Movement Control) Regulations 2021 | 12 January 2021 | 13 January 2021 to 26 January 2021 | ACT 342 |
| PU(A) 8/2021 | Prevention and Control of Infectious Diseases (Measures Within Infected Local Areas) (Movement Control) Regulations 2021 | 12 January 2021 | 13 January 2021 to 26 January 2021 | ACT 342 |
| PU(A) 7/2021 | Proclamation of Emergency | 12 January 2021 | 13 January 2021 | ACT 000 |
PU(B)
| Number | Title | Date of Publication | In force from | Principal/ Amending Act No |
| PU(B) 18/2021 | Notification of Values of Crude Palm Oil Under Section 12 | 13 January 2021 | 1 February 2021 to 28 February 2021 | ACT 235 |
| PU(B) 17/2021 | Notification of Values of Crude Petroleum Oil Under Section 12 | 13 January 2021 | 15 January 2021 to 28 January 2021 | ACT 235 |
| PU(B) 16/2021 | Notice of Proposed Revocation of Reservation of Land For Public Purpose For Lot 80835 Mukim Batu | 11 January 2021 | 12 January 2021 | ACT 828 |
| PU(B) 15/2021 | Appointment of Notaries Public Under Subsection 3(1) | 11 January 2021 | Specified in column (3) of the Schedule | ACT 115 |
| PU(B) 14/2021 | Notice To Third Parties | 11 January 2021 | 12 January 2021 | ACT 613 |
Legislation Alert
Updated
| Act/Principal No. | Title | Amended by | In force from | Section amended |
| ACT 50 | Medical Act 1971 | PU(A) 3/2021 | 12 Januari 2021 | Jadual Kedua |
| ACT 50 | Medical Act 1971 | PU(A) 3/2021 | 12 January 2021 | Second Schedule |
| PU(A) 5/2017 | Customs Duties Order 2017 | PU(A) 398/2020 | 1 January 2021 | First Schedule |
| AKTA 452 | Akta Kumpulan Wang Simpanan Pekerja 1991 | PU(A) 389/2020 | 1 Januari 2021 | Seksyen 54 |
| AKTA 452 | Akta Kumpulan Wang Simpanan Pekerja 1991 | PU(A) 388/2020 | 1 Januari 2021 hingga 31 Disember 2021 | Jadual Kelapan |
Revoked
| Act/Principal No. | Title | Revoked by | In force from |
| PU(B) 120/2020 | Appointment of Deputy Director General of the Board | PU(B) 712/2020 | 1 December 2020 |
| PU(B) 58/2017 | Prescription of Amount of Indebtedness of Company | PU(B) 711/2020 | 1 January 2021 |
| PU(B) 166/2019 | Exemption Under Section 65U | PU(B) 592/2020 | 15 November 2020 |
| PU(A) 298/2019 | Co-Operative Societies (Assumption of Control) (Appointment) (No. 4) Order 2019 | PU(A) 332/2020 | 30 November 2020 |
| PU(A) 229/2020 | Co-Operative Societies (Assumption of Control of Koperasi Automobil Kuching Sarawak Berhad) (Reappointment) Order 2020 | PU(A) 331/2020 | 30 November 2020 |