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Issue #32/2021
12 August 2021
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New This Week
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MUHAMMAD LUKMAN MOHAMAD v. PP [2021] 7 CLJ 524
FEDERAL COURT, PUTRAJAYA
TENGKU MAIMUN TUAN MAT CJ; MOHD ZAWAWI SALLEH FCJ; HARMINDAR SINGH DHALIWAL FCJ
[CRIMINAL APPEAL NO: 05(M)-300-12-2019(B)]
21 JUNE 2021
An accused person cannot be convicted for a drug trafficking charge where the amount or quantity of dangerous drugs as stated in the charge cannot be quantified or scientifically determined. In the premises, in a charge of trafficking in dangerous drugs under s. 39B(1)(a) of the Dangerous Drugs Act 1952, it is erroneous to propose, as the Court of Appeal herein did, that the amount or quantity of drugs is irrelevant and that the court is entitled to convict "once the prosecution had proved the elements of possession and trafficking of the dangerous drugs". The amount or quantity of drugs has always formed an essential part of the offence and indeed constitutes the core of the prosecution's case, and hence, any failure by the chemist to carry out a quantitative analysis of the drugs can be fatal to the prosecution's case. Without such quantitative analysis, or other evidence to justify the amount or quantity of the drugs in the charge, the irresistible conclusion could only be that the prosecution had just failed to establish its case beyond reasonable doubt.
CRIMINAL LAW: Dangerous drugs - Trafficking - Convictions under s. 39B(1)(a) of Dangerous Drugs Act 1952 ('DDA') - Factors considered in deciding whether charge to be preferred for trafficking or possession simpliciter - Whether amount of drugs reflective of charge - Failure by chemist to carry out quantitative analysis - Whether certainty of amount of drugs essential component of charge - Whether conviction to be reduced to one under s. 9 of DDA
CRIMINAL LAW: Dangerous drugs - Trafficking - Cannabis oil used for medicinal purpose - Whether cultivation of cannabis for medicinal purpose allowed - Whether controlled drug - Whether accused person authorised to possess, manufacture, handle, process or sell cannabis for medicinal purpose - Whether conduct in violation of Dangerous Drugs Act 1952
CRIMINAL PROCEDURE: Appeal - Appeal against conviction and sentence - Convictions under s. 39B(1)(a) of Dangerous Drugs Act 1952 ('DDA') - Factors considered in deciding whether charge to be preferred for trafficking or possession simpliciter - Whether amount of drugs reflective of charge - Failure by chemist to carry out quantitative analysis - Whether certainty of amount of drugs essential component of charge - Whether prosecution established case beyond reasonable doubt - Whether conviction to be reduced to one under s. 9 of DDA
BANK KERJASAMA RAKYAT (M) BHD v.
KOPERASI SERBAGUNA IMAN MALAYSIA BHD;
MAYBANK ISLAMIC BHD & ORS (GARNISHEES) [2021] 7 CLJ 606
HIGH COURT MALAYA, KUALA LUMPUR
ATAN MUSTAFFA YUSSOF AHMAD JC
[SUIT NO: WA-22M-127-03-2019]
10 MAY 2021
In cases where a judgment creditor has obtained a garnishee order and sought to attach the debts due or accruing to a judgment debtor from a garnishee, the evidential burden to show cause as to why an order absolute should not be made is on the judgment debtor. This said, the right of a judgment creditor to garnish monies in the judgment debtor's bank account is not unfettered, although the court may only refuse to exercise its discretion to make an order absolute only if it is proved that the debt due or accruing to the judgment debtor is also due or accruing to someone else, or that such attachment is expressly prohibited by statute, or that the debt has been equitably assigned to a third party and to grant an order absolute would be unfair to the garnishee or other creditors.
CIVIL PROCEDURE: Proceedings - Garnishee proceedings - Judgment given in favour of judgment creditor - Judgment creditor demanded for payment of judgment sum from judgment debtor - Payment not forthcoming - Judgment debtor filed notice of application for garnishee order against garnishee banks to attach all debts due or accruing due by garnishees to judgment debtor to answer judgment - Whether monies in garnishee banks belonged to judgment debtor - Whether could be garnished - Rules of Court 2012, O. 14A
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Tetuan Putra Gill v. Shencourt Properties Sdn Bhd [2020] 1 LNS 6 (CA) overulling the High Court case of Hew Kiang Hoe & Anor v. Shencourt Properties Sdn Bhd; Tetuan Putra Gill (applicant) [Companies Winding-up No: D4-28-44-2002]
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Abdul Hali lwn. PP [2019] 1 LNS 1799 (CA) mengesahkan kes Mahkamah Tinggi PP v. Abdul Hali [Perbicaraan Jenayah No: 45B-36-05/2017]
Legal Network Series
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LEE HENG YAU lwn. PACIFIC TRUSTEES BERHAD Apabila suatu tindakan telah dibatalkan oleh Mahkamah tanpa membuat sebarang keputusan atas merit sejurus selepas plaintif menarik balik tuntutannya maka tidak ada sebarang alasan yang munasabah untuk defendan memfailkan rayuan terhadap keputusan Mahkamah tersebut yang sebenarnya menyebelahi kehendak defendan. PROSEDUR SIVIL: Rayuan - Prinsip dan prosedur - Rayuan perayu terhadap keputusan Mahkamah Tinggi yang sebenarnya menyebelahi kehendak perayu - Mahkamah Tinggi tidak membuat keputusan atas merit kes - Memorandum rayuan mengandungi kenyataan berkenaan perilaku peguam dan hakim Mahkamah Tinggi - Sama ada terdapat sebarang keputusan untuk dikaji semula atau disemak atau dirayu di Mahkamah Rayuan - Sama ada kenyataan yang dibuat oleh perayu di dalam memorandum rayuan adalah munasabah - Sama ada rayuan wajar diteruskan - Sama ada rayuan perayu adalah remeh dan merupakan suatu penyalahgunaan proses Mahkamah
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MUSLINAH HASSAN lwn. HANARUDDIN BAHARUDDIN @ ROHANUDDIN & YANG LAIN Suatu penghakiman atau perintah yang telah dimeterai adalah muktamad dan pihak-pihak tidak boleh mengubah atau memadamkan kandungan perintah tersebut terutama apabila pihak-pihak tidak memfailkan rayuan berkenaan kandungan perintah tersebut. GANTI RUGI: Taksiran - Asas taksiran yang sesuai - Beban pembuktian - Tuntutan untuk pulangan pelaburan jual beli emas - Perintah hanya menyatakan perkataan 'pulangan' - Sama ada defendan perlu membayar pulangan pelaburan berserta modal - Sama ada munasabah untuk plaintif hanya mendapat kembali keuntungan daripada pelaburan tanpa modal - Sama ada formula pengiraan plaintif adalah betul - Sama ada plaintif telah kemukakan keterangan dokumentar bagi menyokong transaksi-transaksi yang berlaku - Sama ada defendan telah menyangkal bukti-bukti yang dikemukakan oleh plaintif - Sama ada suatu tuntutan ganti rugi boleh dibuktikan tanpa keterangan dokumen - Sama ada plaintif berhak untuk mendapatkan satu awad nominal jika tidak dapat mengemukakan keterangan sokongan berkaitan tuntutannya PROSEDUR SIVIL: Penghakiman dan perintah - Pengubahan - Pertikaikan berkenaan kemasukkan 'penal endorsement' di dalam perintah - Perintah telah dimeterai - Ketiadaan rayuan berkenaan kandungan perintah - Sama ada kandungan perintah telah muktamad - Sama ada suatu perintah yang muktamad boleh diubah - Sama ada 'penal endorsement' pada perintah boleh dipadamkan
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NORA HAYATI ISMAYATIM v. SAM SAU MAY & ANOR Advocates and solicitors have a duty to conduct themselves with propriety whether in their professional or personal capacity. When a solicitor has given his undertaking to make payment to a party, the solicitor is bound to honour such undertaking, irrespective of whether the party is his client. LEGAL PROFESSION: Misconduct - Breach of undertaking - Undertaking to make payment - Cheques issued by solicitors were dishonoured - Allegation that cheques were issued by mistake - Allegation undertaking given on personal capacity rather than in capacity as solicitors - Whether appellant owes fiduciary duty to respondent - Whether appellant had dishonoured his undertaking - Whether appellant's actions amount to serious misconduct - Whether punishment meted out against appellant was proportionate
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DATO' SRI MOHD NAJIB HJ ABDUL RAZAK v. PP 1. A criminal trial commences when the charge is read to the accused and the plea is taken. A decision of the Court on any motion after the charge has been read to the accused and a plea has been taken is thus made during the course of the trial or matter. 2. By virtue of s. 376(3) of Criminal Procedure Code, there is no requirement that the appointment of a Senior Deputy Public Prosecutor by the Public Prosecutor must be in writing or be gazetted. Hence, the appointment of a Senior Deputy Public Prosecutor which was made known through a media release by the Public Prosecutor is valid and effective. CRIMINAL PROCEDURE: Prosecution - Prosecuting officer - Application for disqualification - Application to disqualify Senior Deputy Public Prosecutor ('SDPP') appointed by Public Prosecutor - Appointment of SDPP was made known through a media release by Public Prosecutor - Allegation of perjury - Absence of any finding of guilt or offence committed by SDPP - Letter of appointment of SDPP not tendered in Court - Whether there was requirement for appointment of SDPP to be in writing and to be gazetted - Whether SDPP was a fit and proper person to appear on behalf of Public Prosecutor - Whether appointment of SDPP was valid and effective - Whether concept of legitimate expectation applicable in criminal proceedings - Whether appointment of SDPP was protected by Official Secrets Act 1972 - Criminal Procedure Code, s. 376(3) CRIMINAL PROCEDURE: Prosecution - Prosecuting officer - Application for disqualification - Disqualification and removal of Deputy Public Prosecutor - Inherent jurisdiction of Court - Whether Court is vested with inherent jurisdiction to disqualify Deputy Public Prosecutor who was appointed by Public Prosecutor - Whether Court has power to determine person that should be permitted to appear before it - Whether cab rank rule was applicable relating to appointment of a Deputy Public Prosecutor by Public Prosecutor CRIMINAL PROCEDURE: Appeal - Appealable decision - Appeal against decision of High Court dismissing notice of motion - Decision on notice of motion delivered after charge had been read to accused and plea had been taken - Whether decision on notice of motion was made during course of trial and matter - Whether a trial commences when a charge is read to an accused person and his plea is taken - Whether decision disposed of appellant's rights to its finality - Whether decision was appealable by virtue of s. 50(1) and s. 3 of Courts of Judicature Act 1964
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GIATREKA SDN BHD v. SGW ENGINEERING CONSTRUCTION SDN BHD 1. An adjudicator's findings on his own jurisdiction will not be binding or conclusive in an adjudication under the regime of the Construction Industry Payment and Adjudication Act 2012. The jurisdiction of an adjudicator will be annulled when the validity of the adjudicator's appointment is impugned. 2. The validity of the payment claim hinges upon strict compliance of the mandatory provisions of s. 5(2) of the Construction Industry Payment and Adjudication Act 2012 ('CIPAA'). The decision of the adjudicator based on a payment claim which has not met the mandatory requirements of s. 5(2) of CIPAA is liable to be set aside pursuant to s. 15(d) of the CIPAA. CONSTRUCTION LAW: Adjudication - Setting aside - Decision in excess of jurisdiction - Consideration of defective payment claim - Payment claim failed to comply with requirements set out in s. 5(2) of Construction Industry Payment and Adjudication Act 2012 ('CIPAA') - Payment claim lacked identification of cause of action and provisions of contract - Payment claim was in nature of a letter of demand - Whether acceptance of defective payment claim by adjudicator was fatal to his decision - Whether adjudicator had acted in excess of his jurisdiction - Whether adjudicator had made findings on his own jurisdiction - Whether adjudication decision ought to be set aside pursuant to s. 15(d) of CIPAA CONSTRUCTION LAW: Adjudication - Setting aside - Application to set aside adjudication decision - Breach of natural justice - Adjudicator refused service of a rebuttal to adjudication reply upon being satisfied that clarification had been sought from parties - Adjudicator granted extension of time for submission of adjudication reply - Whether adjudicator was entitled to refuse further clarification from parties - Whether adjudicator has discretion to allow extension of time for submission of adjudication reply - Whether there was any breach of natural justice - Whether adjudicator acted impartially
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CLJ 2021 Volume 7 (Part 4)
The court, in interpreting the meaning of particular directions or conditions issued by a local authority in the exercise of its statutory power under s. 70 of the Street, Drainage and Building Act 1974 is in fact forming an opinion as to usages of any body of men, or meaning of words used by particular classes of people, having regard to s. 49 of the Evidence Act 1950 ; as such the court is entitled to rely on the opinions of persons having special means of knowledge on those usages or meaning.
Jade Homes Sdn Bhd v. Sivananthan Krishnan [2021] 7 CLJ 487 [FC]
EVIDENCE: Witnesses - Opinion - Usages - Construction law - Defects in construction - Whether developer failed/refused to rectify defects - Whether approved building plan required developer to construct reinforced concrete wall - Interpretation of condition in approved building plan - Whether court, in interpreting conditions issued by local authority, was forming opinion as to usages of any body of men or meaning of words used by particular classes of people - Whether court entitled to rely on opinions on persons having special means of knowledge - Evidence Act 1950, s. 49 - Street, Drainage and Building Act 1974, s. 70
CONSTRUCTION LAW: Building - Plans - Defects in construction - Whether developer failed/refused to rectify defects - Whether approved building plan required developer to construct reinforced concrete wall - Interpretation of condition in approved building plan - Whether platform levels between purchaser's property and neighbouring lot warranted construction of reinforced concrete wall - Street, Drainage and Building Act 1974, s. 70
ABANG ISKANDAR CJ (SABAH AND SARAWAK)
MOHD ZAWAWI SALLEH FCJ
ZABARIAH MOHD YUSOF FCJ
- For the appellant - Gopal Sreenevasan, Ng Siau Sun, Loi Kin-Hoe; M/s Sun & Michele
- For the respondent - Sri Dev Nair, Ramesh Kanapathy, Shamala Selvarajah, Pang Li Xuan; M/s Chellam Wong
An accused person cannot be convicted for a drug trafficking charge where the amount or quantity of dangerous drugs as stated in the charge cannot be quantified or scientifically determined. In the premises, in a charge of trafficking in dangerous drugs under s. 39B(1)(a) of the Dangerous Drugs Act 1952, it is erroneous to propose, as the Court of Appeal herein did, that the amount or quantity of drugs is irrelevant and that the court is entitled to convict "once the prosecution had proved the elements of possession and trafficking of the dangerous drugs". The amount or quantity of drugs has always formed an essential part of the offence and indeed constitutes the core of the prosecution's case, and hence, any failure by the chemist to carry out a quantitative analysis of the drugs can be fatal to the prosecution's case. Without such quantitative analysis, or other evidence to justify the amount or quantity of the drugs in the charge, the irresistible conclusion could only be that the prosecution had just failed to establish its case beyond reasonable doubt.
Muhammad Lukman Mohamad v. PP [2021] 7 CLJ 524 [FC]
CRIMINAL LAW: Dangerous drugs - Trafficking - Convictions under s. 39B(1)(a) of Dangerous Drugs Act 1952 ('DDA') - Factors considered in deciding whether charge to be preferred for trafficking or possession simpliciter - Whether amount of drugs reflective of charge - Failure by chemist to carry out quantitative analysis - Whether certainty of amount of drugs essential component of charge - Whether conviction to be reduced to one under s. 9 of DDA
CRIMINAL LAW: Dangerous drugs - Trafficking - Cannabis oil used for medicinal purpose - Whether cultivation of cannabis for medicinal purpose allowed - Whether controlled drug - Whether accused person authorised to possess, manufacture, handle, process or sell cannabis for medicinal purpose - Whether conduct in violation of Dangerous Drugs Act 1952
CRIMINAL PROCEDURE: Appeal - Appeal against conviction and sentence - Convictions under s. 39B(1)(a) of Dangerous Drugs Act 1952 ('DDA') - Factors considered in deciding whether charge to be preferred for trafficking or possession simpliciter - Whether amount of drugs reflective of charge - Failure by chemist to carry out quantitative analysis - Whether certainty of amount of drugs essential component of charge - Whether prosecution established case beyond reasonable doubt - Whether conviction to be reduced to one under s. 9 of DDA
TENGKU MAIMUN TUAN MAT CJ
MOHD ZAWAWI SALLEH FCJ
HARMINDAR SINGH DHALIWAL FCJ
- For the appellant - Hisham Teh Poh Teik, Kee Wei Lon, Mohammad Farhan Maaruf, Tania Scivetti, Low Wei Loke & Wan Azwan Aiman Fakhruddin; M/s Teh Poh Teik & Co
- For the respondent - Samihah Rhazali & Aslinda Ahad; DPPs
The respondents, by filing a suit to strike out the appellant's writ on merits or alternatively applying for stay of the court proceedings pending arbitration, had taken steps in the proceedings pursuant to s. 10(1) of the Arbitration Act 2005. Such conduct evinces an unequivocal intention to submit to the court's jurisdiction to adjudicate the dispute in preference to arbitration; and the respondents cannot now be allowed to change their stance, more so when a trial would facilitate rather than prejudice an arbitration, bearing in mind the substantial overlaps of facts and issues in the two proceedings. It follows that the stay as ordered by the judge ought to be lifted and all parties should accordingly proceed to trial of the suit in court.
Kebabangan Petroleum Operating Company Sdn Bhd v. Mikuni (M) Sdn Bhd & Ors [2021] 7 CLJ 544 [CA]
ARBITRATION: Stay of proceedings - Appeal against - Granting of stay of court proceedings pending disposal of arbitration under s. 10 of Arbitration Act 2005 - Whether conduct of respondents rendered arbitration agreement between parties inoperative - Whether respondents took steps in civil court proceedings and willingly submitted to court's jurisdiction - Whether respondents evinced unequivocal intention to participate in court's proceedings in preference to arbitration - Whether second to fifth respondents parties to arbitration agreement - Whether stay of court proceedings ought to be lifted
CIVIL PROCEDURE: Stay of proceedings - Appeal against - Granting of stay of court proceedings pending disposal of arbitration under s. 10 of Arbitration Act 2005 - Whether conduct of respondents rendered arbitration agreement between parties inoperative - Whether respondents took steps in civil court proceedings and willingly submitted to court's jurisdiction - Whether respondents evinced unequivocal intention to participate in court's proceedings in preference to arbitration - Whether second to fifth respondents parties to arbitration agreement - Whether stay of court proceedings ought to be lifted
VERNON ONG LAM KIAT JCA
SURAYA OTHMAN JCA
HAS ZANAH MEHAT JCA
- For the appellant - Mohd Arief Emran Arifin, Eddie Chuah, Chong Ker Ling & Calvin Wong; M/s Wong & Partners
- For the 1st, 2nd, 3rd & 4th respondents - K Kirubakaran & Audrey Quah; M/s Shui Tai
- For the 5th respondent - Amir Amsyar Mohd Nazir; M/s Ganesh & Co
A shareholder has no legal interest in the assets of a company and consequently has no locus standi to commence an action, including a judicial review application, to sue for such assets. It is up to the company itself or its liquidator to initiate any such action to recover the assets; granting such locus to a shareholder would strain the terms of the 'adversely affected' test and offends O. 53 r. 2(4) of the Rules of Court 2012.
Mega Forest Plantation Management Sdn Bhd v. Pengarah Perhutanan Negeri Selangor & Ors [2021] 7 CLJ 561 [CA]
ADMINISTRATIVE LAW: Judicial review - Application for - Applicant and corporation set up and established company to carry out reforestation project - Company wound up - Director of Perhutanan Negeri Selangor issued notice for applicant to vacate land - Application to quash notice and for order directing valuation of 'assets' on land for purpose of determining compensation payable to applicant - Whether applicant entitled to claim compensation as contributory/shareholder of company - Whether applicant had locus standi - Whether compensation sought through judicial review application already claimed in previous suit - Whether res judicata prohibited judicial review application - Rules of Court 2012, O. 53 r. 2(4)
MARY LIM JCA
HAS ZANAH MEHAT JCA
S NANTHA BALAN JCA
- For the appellant - Hizri Hasshan, Muhammad Akram Abdul Aziz; M/s Akram Hizri Azad & Azmir
- For the respondents - Masri Mohd Daud, Siti Fatimah Talib & Nik Haizie Azlin Nabidin; SLAs
In a battle between a mother and a father, for the guardianship, custody, care and control over a child, the court should refrain from applying its moral compass on the parties and, instead, ought to give paramount consideration to the welfare, age and gender of the child.
Patricia Sue Lin Knudsen v. Joey James Ghazlan [2021] 7 CLJ 588 [CA]
FAMILY LAW: Children - Guardianship, custody, care and control of child - Factors to be considered - Application by mother of child dismissed by High Court - Appeal against - Application dismissed due to allegations that mother lacked parenting skills and was morally unfit - Whether 'parenting skills' ought to be part of consideration in granting/dismissing application - Whether welfare of child affected by mother's alleged lack of parenting skills - Whether there was evidence to establish mother morally unfit - Whether trial judge considered age and gender of child - Guardianship of Infants Act 1961 - Law Reform (Marriage and Divorce) Act 1976, s. 88(3)
KAMARDIN HASHIM JCA
AZIZAH NAWAWI JCA
MOHD SOFIAN ABD RAZAK JCA
- For the appellant - Aimal Korotana & Jasvinder Singh; M/s Korotana Law Office
- For the respondent - Harpal Singh Grewal & Fuzail Rahmat; M/s Fuzail, Kiob & Co
In cases where a judgment creditor has obtained a garnishee order and sought to attach the debts due or accruing to a judgment debtor from a garnishee, the evidential burden to show cause as to why an order absolute should not be made is on the judgment debtor. This said, the right of a judgment creditor to garnish monies in the judgment debtor's bank account is not unfettered, although the court may only refuse to exercise its discretion to make an order absolute only if it is proved that the debt due or accruing to the judgment debtor is also due or accruing to someone else, or that such attachment is expressly prohibited by statute, or that the debt has been equitably assigned to a third party and to grant an order absolute would be unfair to the garnishee or other creditors.
Bank Kerjasama Rakyat (M) Bhd v. Koperasi Serbaguna Iman Malaysia Bhd; Maybank Islamic Bhd & Ors (Garnishees) [2021] 7 CLJ 606 [HC]
CIVIL PROCEDURE: Proceedings - Garnishee proceedings - Judgment given in favour of judgment creditor - Judgment creditor demanded for payment of judgment sum from judgment debtor - Payment not forthcoming - Judgment debtor filed notice of application for garnishee order against garnishee banks to attach all debts due or accruing due by garnishees to judgment debtor to answer judgment - Whether monies in garnishee banks belonged to judgment debtor - Whether could be garnished - Rules of Court 2012, O. 14A
ATAN MUSTAFFA YUSSOF AHMAD JC
- For the judgment creditor/plaintiff - Abdul Rashid Ismail & Uthman Abdul Ghani; M/s Rashid Zulkifli
- For the judgment debtor/defendant - Ahmad Syiimir Suffian & Nurul Assyiqin Ridzoni; M/s Amar Izzat & Co
The plaintiff's action against the Director General of Insolvency ('DG') alleging that the DG had no power to do certain acts that would injure the plaintiff, has raised a question of law that is novel and complex and requires a scrutiny of a full trial. The mere fact that the case may be weak and not likely to succeed is no ground for striking it out. A claim based on the tort of misfeasance in public office is also based on both public and private law elements, and that being so, O. 53 of the Rules of Court did not apply.
Mohd Sofi Abdul Ghafar v. Ketua Pengarah Insolvensi & Anor [2021] 7 CLJ 621 [HC]
CIVIL PROCEDURE: Striking out - Application for - Application to strike out action alleging Director General of Insolvency ('DG') committed misfeasance in public office - Whether statement of claim disclosed reasonable cause of action - Whether DG legally entitled and empowered to do acts complained of - Whether DG conferred statutory immunity against civil claims - Whether claim based on tort of misfeasance in public office based on both public and private laws - Whether O. 53 of Rules of Court 2012 applicable - Whether action frivolous, vexatious and abuse of court process - Insolvency Act 1967, ss. 60, 69, 74, 86 & 92 - Rules of Court 2012, O. 18 r. 19(1)(a)
TORT: Misfeasance - Misfeasance in public office - Action alleging Director General of Insolvency ('DG') committed misfeasance in public office - Application to strike out action - Whether statement of claim disclosed reasonable cause of action - Whether DG legally entitled and empowered to do acts complained of - Whether DG conferred statutory immunity against civil claims - Whether claim based on tort of misfeasance in public office based on both public and private laws - Whether O. 53 of Rules of Court 2012 applicable - Whether action frivolous, vexatious and abuse of court process - Insolvency Act 1967, ss. 60, 69, 74, 86 & 92 - Rules of Court 2012, O. 18 r. 19(1)(a)
SM KOMATHY SUPPIAH J
- For the plaintiff - K Roy Sreenivasan; M/s Lachaman Lalchand & Assocs
- For the defendants - Siti Rafidah Zainudin; SFC
The management corporation, according to s. 60(3) of the Strata Management Act 2015, has adequate powers to impose different rates of charges subject to the requirement that this must be based on the 'significantly different purposes' test laid down under the Act. This will depend on the facts of each case. The management corporation also has implied powers to transfer the funds from the original maintenance account which was originally held by the management corporation to be transferred or apportioned to the subsidiary management corporation.
Sodalite Sdn Bhd & Ors v. 1 Mont’ Kiara Dan Kiara 2 Management Corporation & Ors [2021] 7 CLJ 633 [HC]
LAND LAW: Strata title - Management corporation - Maintenance - Charges - Whether management corporation has power to apply different unit rates and to impose charges concerning maintenance charges and sinking fund contributions on parcel owners - Whether management corporation acted contrary to powers - Whether management corporation has power to transfer funds to subsidiary management corporations - Strata Management Act 2013, ss. 50, 51, 52, 60, 61, 62 & 60(3)
STATUTORY INTERPRETATION: Interpretation Acts 1948 and 1967 - Sections 40(1) and 95 - Intention of legislator - Whether management corporation has power to apply different unit rates
MOHD ARIEF EMRAN ARIFIN JC
- For the plaintiffs - Lim Chee Wee & Muayyad Khairulmaini; M/s Lim Chee Wee Partnership
- For the defendants - Dahlia Lee & Lee Wooi Mien; M/s Law Chamber of Dahlia Lee & Co
LNS Article(s)
INTERPRETING SECTION 22 OF EXCLUSIVE ECONOMIC ZONE ACT 1984 FOR SUBMARINE CABLE PROJECTS IN MALAYSIA [Read excerpt]
by Wahab Jumrah* [2021] 1 LNS(A) ciCHILD MARRIAGES IN MALAYSIA - A MYTH OR PHENOMENON [Read excerpt]
by DR AMBIKAI S THURAISINGAMA[i]* SUZANNA ABDUL HADI[ii] [2021] 1 LNS(A) ciiMALAYSIA SWITCHES TO HAGUE-VISBY RULES (WITH SDR PROTOCOL) WEF 15 JULY 2021: IMPLICATIONS? [Read excerpt]
by Dr. Arun Kasi* [2021] 1 LNS(A) ciii
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 A1634 | Co-Operative Societies (Amendment) Act 2021 | 1 April 2021 [PU(B) 174/2021] | ACT 502 |
| ACT A1633 | Tourism Tax (Amendment) Act 2021 | Not Yet In Force | ACT 791 |
| 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 |
PU(A)
| Number | Title | Date of Publication | In force from | Principal/ Amending Act No |
| PU(A) 332/2021 | Poisons (Amendment of Poisons List) Order 2021 | 9 August 2021 | 10 August 2021 | ACT 366 |
| PU(A) 331/2021 | Optical (Amendment of Second Schedule) Order 2021 | 6 August 2021 | 7 August 2021 | ACT 469 |
| PU(A) 330/2021 | Sales Tax (Persons Exempted From Payment of Tax) (Amendment) (No. 3) Order 2021 | 5 August 2021 | 6 August 2021 | PU(A) 210/2018 |
| PU(A) 329/2021 | Stamp Duty (Exemption) (No. 7) Order 2021 | 4 August 2021 | 1 September 2020 | ACT 378 |
| PU(A) 328/2021 | Stamp Duty (Exemption) (No. 6) Order 2021 | 4 August 2021 | 30 July 2020 | ACT 378 |
PU(B)
| Number | Title | Date of Publication | In force from | Principal/ Amending Act No |
| PU(B) 410/2021 | Appointment of Probation Officers | 4 August 2021 | 15 August 2021 | ACT 611 |
| PU(B) 409/2021 | Appointment of Authorized Officers | 4 August 2021 | 15 August 2021 | ACT 308 |
| PU(B) 408/2021 | Appointment of Deputy Public Prosecutor | 3 August 2021 | Specified in column (2) of Schedule | ACT 593 |
| PU(B) 407/2021 | Notification of Adoption of The Draft Proposal for Alteration of Local Plan for The Federal Territory of Kuala Lumpur | 3 August 2021 | 4 August 2021 | ACT 267 |
| PU(B) 406/2021 | Appointment of Chairman of a Division of The Industrial Court | 3 August 2021 | 15 April 2021 | ACT 177 |
Legislation Alert
Updated
| Act/Principal No. | Title | Amended by | In force from | Section amended |
| ACT 366 | Poisons Act 1952 (Revised 1989) | PU(A) 332/2021 | 10 August 2021 | First Schedule |
| AKTA 469 | Akta Optik 1991 | PU(A) 331/2021 | 7 Ogos 2021 | Jadual Kedua |
| ACT 469 | Optical Act 1991 | PU(A) 331/2021 | 7 August 2021 | Second Schedule |
| PU(A) 210/2018 | Sales Tax (Persons Exempted From Payment of Tax) Order 2018 | PU(A) 330/2021 | 6 August 2021 | Schedule B |
| PU(A) 201/2020 | Perintah Menteri-Menteri Kerajaan Persekutuan (No. 3) 2020 | PU(A) 327/2021 | 7 Julai 2021 - Subsubperenggan 2(a)(i), 2(a)(ii) dan subperenggan 2(b) dan 2(c); 1 Julai 2021 - Subsubperenggan 2(a)(iii) dan subperenggan 2(d) | Jadual |
Revoked
| Act/Principal No. | Title | Revoked by | In force from |
| PU(A) 278/2021 | Peraturan-Peraturan Pencegahan Dan Pengawalan Penyakit Berjangkit (Langkah-Langkah Di Dalam Kawasan Tempatan Jangkitan) (No. 4) 2021 [Dibatalkan Oleh PU(A) 293/2021] | PU(A) 293/2021 | 5 Julai 2021 |
| PU(A) 278/2021 | Prevention and Control of Infectious Diseases (Measures Within Infected Local Areas) (No. 4) Regulations 2021 [Revoked By PU(A) 293/2021] | PU(A) 293/2021 | 5 July 2021 |
| PU(B) 454/2020 | Pelantikan Anggota Lembaga | PU(B) 341/2021 | 19 Jun 2021 |
| PU(B) 454/2020 | Appointment of Member of the Authority | PU(B) 341/2021 | 19 June 2021 |
| PU(B) 402/2016 | Appointment of Registrar | PU(B) 314/2021 | 12 April 2021 |