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Issue #34/2021
26 August 2021

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New This Week

CASE(S) OF THE WEEK

LEMBAGA KUMPULAN WANG SIMPANAN PEKERJA v. EDWIN CASSIAN NAGAPPAN [2021] 7 CLJ 823
FEDERAL COURT, PUTRAJAYA
ROHANA YUSUF PCA; AZAHAR MOHAMED CJ (MALAYA); NALLINI PATHMANATHAN FCJ
[CIVIL APPEAL NO: 03-3-10-2019(W)]
19 JULY 2021

Where two directors of a company by way of consent judgment undertook to pay EPF contributions to an employee, it is legally untenable to argue that their individual liability to pay thereof is excised into half of the quantum payable; the obtaining position remains irrespective of whether the promise was made pursuant to a 'joint liability', 'joint and several liability' or otherwise. Section 46 of the Employees Provident Fund Act 1991, which imposes a joint and several liability on company directors for unpaid contributions, must be given its full effect, and it is not open for the courts to stultify, vary or whittle down such clear statutory provisions by construing judgments in a manner inconsonant with the Act. It is also manifestly clear that by s. 44 of the Contracts Act 1950, the liability of directors as judgments debtors is both joint and several notwithstanding the absence of such term in the judgment.

CIVIL PROCEDURE: Liability - Joint and severally - Company failed to make employer contributions on behalf of employees - Employees' Provident Fund Board commenced suit against company and directors - Parties entered into consent judgment - Consent judgment did not include phrase that defendants would be 'jointly and severally' liable for judgment sum - Whether failure to include 'jointly and severally' meant each defendant would be only liable for portion of judgment sum, proportionate to share/interest/obligation - Whether court should give effect to liability on 'joint and several' basis - Employees Provident Fund Act 1991, ss. 44 & 46


SUBRAMANIAM MURUGAN v. PP [2021] 7 CLJ 836
COURT OF APPEAL, PUTRAJAYA
KAMALUDIN MD SAID JCA; VAZEER ALAM MYDIN MEERA JCA; AHMAD NASFY YASIN JCA
[CRIMINAL APPEAL NO: B-06B-42-06-2018]
18 DECEMBER 2020

A widow to a deceased appellant in a criminal appeal that is pending before the Court of Appeal is entitled to substitute the latter and pursue the appeal to its finality if she has sufficient legally recognised interest in the outcome of the pending appeal. An example of such an interest is where she might lose her right to claim the deceased's emoluments as a public servant, such as his arrears of salary, pension et cetera, if the appeal was not proceeded with. Although there is a lacuna in the law on the abatement of criminal appeals pending in the Court of Appeal upon death, the court, upon the legal maxim 'ubi jus ubi remedium' - where there is a violation of a right, there must be a remedy - must allow the intervention of an applicant with sufficient legal interest to protect and pursue his or her financial or property interest as may necessarily flow from the setting aside of the deceased's conviction.

CRIMINAL PROCEDURE: Appeal - Abatement of appeal - Appellant passed away during pendency of appeal from High Court to Court of Appeal - Whether appellant's wife could substitute - Whether appeal abated upon appellant's death pursuant to s. 320 of Criminal Procedure Code ('CPC') - Whether s. 320 of CPC confined to appeals from subordinate courts to High Court - Whether widow had genuine and legally recognisable pecuniary interest in pursuing appeal

PUBLIC LAW: Public servants - Death of public servants during pendency of criminal appeal - Whether appeal abated upon death of public servant - Application by widow to substitute - Whether widow had sufficient and legally recognised interest in outcome of appeal - Criminal Procedure Code, s. 320 - Pensions Act 1980, s. 14(1)


APPEAL UPDATES  
  1. Nguyen Van Troi lwn. PP [2019] 1 LNS 1912 (CA) mengesahkan kes Mahkamah Tinggi PP v. Nguyen Van Troi [Criminal Trial No: 45A-23-09/2014]

  2. PP lwn. Ali Saifuddin & Yang Lain [2019] 1 LNS 1911 (CA) menolak kes Mahkamah Tinggi PP v. Ali Saifuddin & Yang Lain [Bicara Jenayah No: 45 SO-35-06/2016]

LATEST CASES

Legal Network Series

[2019] 1 LNS 693

OTHMAN ARSAHD lwn. PP

Sabitan terhadap tertuduh yang lain selepas pengakuan bersalah berdasarkan fakta-fakta kes tidak akan memberi pengaruh besar kepada hakim bicara dalam meneruskan dan membuat keputusan dalam perbicaraan berkaitan permohonan melucutkan hakim bicara tersebut. Fakta-fakta yang diakui oleh tertuduh yang lain tidak memprejudiskan pemohon serta menafikan hak pemohon daripada mendapatkan satu perbicaraan yang adil. Kemungkinan wujudnya bahaya berat sebelah sebenar di pihak hakim bicara yang sama mendengar kes pemohon bukan merupakan suatu alasan yang bermerit dalam permohonan untuk melucutkan hakim bicara tersebut.

PROSEDUR SIVIL: Hakim - Permohonan untuk melucutkan hakim - Prosiding perbicaraan kes jenayah - Fakta kes telah ditampilkan semasa prosiding pengakuan salah tertuduh yang lain - Permohonan pelucutan hakim dibuat setelah 63 orang saksi memberikan keterangan - Sama ada terdapat bahaya berat sebelah sebenar jika hakim bicara yang sama meneruskan perbicaraan pemohon - Sama ada wujud pengaruh besar kepada hakim bicara yang sama dalam membuat keputusan dalam perbicaraan pemohon - Sama ada pemohon akan diprejudiskan hak untuk mendapat satu perbicaraan yang adil - Sama ada permohonan adalah bersasarkan alasan yang bermerit - Sama ada pendengaran kes di hadapan hakim bicara yang lain secara 'de novo' adalah wajar dan munasabah

  • Bagi pihak pemohon - Muhd Rafique Rashid Ali; T/n Law Practice of Rafique
  • Bagi pihak responden - Norzilati Izhani Zainal@Zainol, Bahagian Perundangan; Pendakwaan Suruhanjaya Pencegahan Rasuah Malaysia (SPRM)

[2019] 1 LNS 728

KER BOON CHONG lwn. TAN LIAN KENG & YANG LAIN

Mahkamah Tinggi telah functus officio dan tidak mempunyai kuasa untuk mengetepikan perintah yang telah diberikan sebelumnya dan pihak yang terkilan dengan keputusan Mahkamah Tinggi tersebut harus memfailkan rayuan ke Mahkamah Rayuan dan bukan memfailkan permohonan untuk mengetepikan perintah tersebut di Mahkamah Tinggi.

PROSEDUR SIVIL: Perintah - Pengetepian - Permohonan oleh pihak yang terkilan untuk mengetepikan perintah Mahkamah Tinggi - Permohonan difailkan di Mahkamah Tinggi - Sama ada pihak yang terkilan dengan keputusan Mahkamah Tinggi yang telah diberikan sebelumnya harus memfailkan rayuan ke Mahkamah Rayuan - Sama ada Mahkamah Tinggi telah functus officio - Sama ada permohonan untuk mengetepikan perintah Mahkamah Tinggi di Mahkamah Tinggi sendiri adalah salah

  • Bagi pihak plaintif - Haryanti Othman; T/n Haryanti Othman Associates
  • Bagi pihak defendan-defendan - Mohd Ashri Rais; T/n Asreen & Co

[2019] 1 LNS 746

AHS ARCHITECTS SDN BHD lwn. PENGARAH JABATAN KERJA RAYA NEGERI PERLIS & SATU LAGI

Kegagalan untuk menjawab invois-invois dan notis tuntutan untuk menuntut yuran profesion arkitek serta kegagalan untuk memeriksa balas dan mencabar keterangan berkenaan invois-invois menyebabkan pengiraan yuran sebagaimana yang terdapat di dalam invois-invois tersebut adalah dianggap benar dan terpakai keseluruhannya.

PROFESION-PROFESION: Arkitek - Pelantikan - Pelantikan perunding arkitek - Kewujudan pembatalan pelantikan - Kerja-kerja telah dilakukan tanpa bantahan - Sama ada dokumen-dokumen serta kelakuan pihak-pihak membuktikan pelantikan plaintif sebagai perunding arkitek - Sama ada wujud tawaran dan penerimaan yang membentuk kontrak pelantikan perunding arkitek - Sama ada defendan diestop daripada mempertikaikan pelantikan plaintif sebagai arkitek berdasarkan kelakuan-kelakuan kemudian - Sama ada kerja-kerja yang telah dilakukan plaintif adalah atas arahan defendan

PROFESION-PROFESION: Arkitek - Yuran profesion - Tuntutan untuk bayaran yuran arkitek bagi kerja-kerja yang telah dilakukan - Invois dan surat tuntutan bayaran yuran tidak dijawab - Keterangan berkenaan formula serta pengiraan yuran tidak dicabar ketika bicara - Sama ada pengiraan yuran sebagaimana yang terdapat dalam invois adalah dianggap benar dan terpakai keseluruhannya

  • Bagi pihak plaintif - Zamri Ibrahim; T/n Zamri Ibrahim
  • Bagi pihak defendan-defendan - YB Wan Jeffery Kassim & Mohamad Rizal Fadzil; Penasihat Undang-Undang Negeri Perlis, Pejabat Penasihat Undang-Undang Negeri Perlis

[2020] 1 LNS 8

EZEAMAMA CHIJIOKE CHIDI DARLINGTON v. PP

The prosecution has a duty to prove beyond reasonable doubt that the drugs seized were the same drugs sent to the chemist for analysis and eventually produced and identified by the witnesses in the Court. Affirmative evidence is required to dispel any reasonable doubt on the identity of the drugs exhibited

CRIMINAL PROCEDURE: Appeal - Appeal against conviction and sentence - Sentence of death for offence of trafficking dangerous drugs - Capsules containing drugs were hidden inside abdomen of accused - Whether accused had exclusive and mens rea possession of drugs - Whether there was break in chain of evidence of drugs exhibits which warranted appellate intervention

CRIMINAL PROCEDURE: Exhibits - Break in chain of evidence - Drug exhibits - Capsules containing drugs were hidden inside abdomen of accused - Capsules were excreted by accused at a different time and witnessed by different sentries - Delay in handing over of drug exhibits to investigating officer - Whether all capsules had been identified by witnesses in Court - Whether slight delay in handing over drug exhibits to investigating officer caused prejudice to accused - Whether prosecution had proved drugs seized were same drugs sent to chemist for analysis and tendered in Court - Whether affirmative evidence is required to dispel any reasonable doubt on identity of drug exhibits

  • For the appellant - Tam Teck Yew; M/s Chan Tse Yuen & Co
  • For the respondent - Zaki Asyraf Zubir, Deputy Public Prosecutor; Attorney General's Chambers

[2020] 1 LNS 10

BABAR ALI (W/N PAKISTAN) v. PP

Duress under s. 94 of the Penal Code must be imminent, extreme and persistent at the time of the commission of an offence. The defence of duress is applicable if the accused had committed an offence on the spur of the moment and without prior planning.

CRIMINAL PROCEDURE: Defence - Duress - Offence of trafficking dangerous drugs - Possession of drugs undisputed - Accused alleged that he was carrying drugs under duress of real trafficker - Drugs were found tied to and strapped to legs of accused by compression calf sleeves - Personal details of real trafficker were not given in cautioned statement for investigation purposes - Whether alleged real trafficker was merely a fictitious person - Whether alleged threats faced by accused were proven - Whether act of accused done in spur of moment to justify defence of duress - Whether defence of duress raised by accused was merely an afterthought - Penal Code, s. 94

  • For the appellant - Muhammad Rafique Rashid Ali Akif Rusli & M/s Law Practice of Rafique
  • For the respondent - Jasmee Hameeza Jaafar, Deputy Public Prosecutor; Attorney-General's Chambers

CLJ 2021 Volume 7 (Part 6)

Where two directors of a company by way of consent judgment undertook to pay EPF contributions to an employee, it is legally untenable to argue that their individual liability to pay thereof is excised into half of the quantum payable; the obtaining position remains irrespective of whether the promise was made pursuant to a 'joint liability', 'joint and several liability' or otherwise. Section 46 of the Employees Provident Fund Act 1991, which imposes a joint and several liability on company directors for unpaid contributions, must be given its full effect, and it is not open for the courts to stultify, vary or whittle down such clear statutory provisions by construing judgments in a manner inconsonant with the Act. It is also manifestly clear that by s. 44 of the Contracts Act 1950, the liability of directors as judgments debtors is both joint and several notwithstanding the absence of such term in the judgment.
Lembaga Kumpulan Wang Simpanan Pekerja v. Edwin Cassian Nagappan [2021] 7 CLJ 823 [FC]

CIVIL PROCEDURE: Liability - Joint and severally - Company failed to make employer contributions on behalf of employees - Employees' Provident Fund Board commenced suit against company and directors - Parties entered into consent judgment - Consent judgment did not include phrase that defendants would be 'jointly and severally' liable for judgment sum - Whether failure to include 'jointly and severally' meant each defendant would be only liable for portion of judgment sum, proportionate to share/interest/obligation - Whether court should give effect to liability on 'joint and several' basis - Employees Provident Fund Act 1991, ss. 44 & 46

 

 

 

ROHANA YUSUF PCA
AZAHAR MOHAMED CJ (MALAYA)
NALLINI PATHMANATHAN FCJ

  • For the appellant - Afifil Ahmad & Nabila Rosli; M/s Azrul Afifi & Azuan
  • Respondent not present

A widow to a deceased appellant in a criminal appeal that is pending before the Court of Appeal is entitled to substitute the latter and pursue the appeal to its finality if she has sufficient legally recognised interest in the outcome of the pending appeal. An example of such an interest is where she might lose her right to claim the deceased's emoluments as a public servant, such as his arrears of salary, pension et cetera, if the appeal was not proceeded with. Although there is a lacuna in the law on the abatement of criminal appeals pending in the Court of Appeal upon death, the court, upon the legal maxim 'ubi jus ubi remedium' - where there is a violation of a right, there must be a remedy - must allow the intervention of an applicant with sufficient legal interest to protect and pursue his or her financial or property interest as may necessarily flow from the setting aside of the deceased's conviction.
Subramaniam Murugan v. PP [2021] 7 CLJ 836 [CA]

|

CRIMINAL PROCEDURE: Appeal - Abatement of appeal - Appellant passed away during pendency of appeal from High Court to Court of Appeal - Whether appellant's wife could substitute - Whether appeal abated upon appellant's death pursuant to s. 320 of Criminal Procedure Code ('CPC') - Whether s. 320 of CPC confined to appeals from subordinate courts to High Court - Whether widow had genuine and legally recognisable pecuniary interest in pursuing appeal

PUBLIC LAW: Public servants - Death of public servants during pendency of criminal appeal - Whether appeal abated upon death of public servant - Application by widow to substitute - Whether widow had sufficient and legally recognised interest in outcome of appeal - Criminal Procedure Code, s. 320 - Pensions Act 1980, s. 14(1)

 

 

KAMALUDIN MD SAID JCA
VAZEER ALAM MYDIN MEERA JCA
AHMAD NASFY YASIN JCA

  • For the applicant - M Athimulan & R Vikraman
  • For the respondent - Nurul Farhana Khalid; DPP

There may exist a real risk of dissipation of assets and destruction of evidence when companies are used as corporate vehicles to carry out fraud, and hence, granting a Mareva Injunction to assist a victim to recover losses caused by the fraud of such companies is quite in order. As for Labuan-based companies or companies known as Labuan Companies and Labuan Trust Companies, s. 149 of the Labuan Companies Act 1990 and s. 178 of the Labuan Services and Securities Act 2010 are not blanket provisions for them to claim complete secrecy. The courts will intervene, curtail and even totally remove such secrecy based on justifiable reasons.
The Customs And Tax Administration Of The Kingdom Of Denmark v. Saling Capital Ltd & Ors And Other Appeals [2021] 7 CLJ 857 [CA]

CIVIL PROCEDURE: Injunction - Mareva injunction - Appellant seeking to recover losses caused by fraud perpetrated by respondents - Respondents applied for refund of withheld tax from appellant - Refund applications allegedly accompanied by false confirmations of purported shares held by respondents in Danish companies - Contention of appellants that respondents did not own shares in relevant Danish corporations and not entitled to receive dividends - Whether there was material non-disclosure by appellant in ex parte applications extending to inter parte applications - Whether appellant had good arguable case to entitle it to Mareva order - Whether there was risk of dissipation of assets by respondents - Whether there was inordinate delay in making of appellant's ex parte and inter parte applications - Whether Mareva injunction ought to be granted

CIVIL PROCEDURE: Anton Piller - Anton Piller order - Appellant seeking to recover losses caused by fraud perpetrated by respondents - Respondents applied for refund of withheld tax from appellant - Refund applications allegedly accompanied by false confirmation of purported shares held by respondents in Danish companies - Contention of appellants that respondents did not own shares in relevant Danish corporations and not entitled to receive dividends - Whether there was material non-disclosure by appellant in ex parte applications extending to inter parte applications - Whether appellant had good arguable case to entitle it to Anton Piller order - Whether there was risk of dissipation of assets by respondents - Whether there was inordinate delay in making of appellant's ex parte and inter parte applications - Whether Anton Piller order ought to be restored

CIVIL PROCEDURE: Lifting order - Lifting secrecy in Labuan offshore jurisdiction - Appellant seeking for order uplifting secrecy of companies - Appellant denied visibility of activities in companies - Whether court could curtail or remove secrecy based on justifiable reasons - Whether secrecy afforded to companies should not remain intact - Whether there was prima facie evidence that activities of companies fraudulent - Whether there were reasons to grant ex parte order uplifting secrecy - Labuan Companies Act 1990, s. 149 - Labuan Financial Services and Securities Act 2010, s. 178

 

 

 

LAU BEE LAN JCA
ABU BAKAR JAIS JCA
LEE HENG CHEONG JCA

  • For the appellant - M/s Skrine
  • For the 1st respondent - Izad Kazran & Co
  • For the 2nd, 3rd & 10th respondents - M/s Chooi & Company + Cheang & Ariff
  • For the 4th, 5th, 12th, 13th, & 19th-36th respondents - M/s Ranjit Singh & Yeoh
  • For the 6th, 7th, 11th & 16th respondents - M/s James Khong
  • For the 8th, 9th, 14th, 15th, 17th, 18th & 37th respondents - AG Kalidas; M/s K Nadarajah & Partners
  • For the 38th & 39th respondents - M/s Ariff Rozhan & Co
  • For the 40th respondent - Lee Hishammuddin Allen & Gledhill

The decision of the Prime Minister in advising the Yang di-Pertuan Agong to promulgate s. 14 of the Emergency (Essential Powers) Ordinance 2021 which resulted in the prorogation and/or suspension of Parliament, is not amenable to judicial review. Article 150(6) and (8) of the Federal Constitution, which is valid and constitutional, expressly prohibits any challenges to the validity of the Ordinance in any form and on any ground.
Dato' Seri Anwar Ibrahim v. Tan Sri Dato' Hj Muhyiddin Hj Md Yassin & Anor [2021] 7 CLJ 894 [HC]

ADMINISTRATIVE LAW: Judicial review - Application for - Judicial review against decision of Prime Minister and Government of Malaysia to advise Yang di-Pertuan Agong to promulgate s. 14 of Emergency (Essential Powers) Ordinance 2021 ('Ordinance') - Parliament prorogued and suspended - Challenge against constitutionality and validity of ss. 14 & 18 of Ordinance and art. 150(6) & (8) of Federal Constitution - Whether court seized with jurisdiction to hear matter - Whether applicant had arguable case that merited further submissions at substantive hearing

 

 

 

MARIANA YAHYA J

  • For the appellant - Ram Karpal Singh, Sangeet Kaur Deo & Rayveni Asogan; M/s Karpal Singh & Co
  • For the Attorney General Chambers - Narkunavathy Sundareson; SFC, Wan Hazlin Suraya Wan Sharif & Mohammad Sallehuddin Md Ali; FCs
Watching Brief:
  • For the Malaysian Bar Council - Colin Andrew Pereira; M/s Goh Wong Pereira

Mens rea must be proven in order to establish contravention of insider trading laws and to establish mens rea for that purpose, it has to be proven that the accused or the defendant knew or ought reasonably to have known that the information in his possession was not generally available to others. There is, however, no requirement for the prosecution or the Securities Commission to prove intention to use the inside information; 'intent to use' is not one of the elements of such prohibited trading.
Suruhanjaya Sekuriti Malaysia v. Sreesanthan Eliathamby [2021] 7 CLJ 913 [HC]

SECURITIES: Insider trading - Insider trading prohibition - Legal firm received instructions to commence preparation of transaction documentation - Proposed privatisation of listed subsidiary - Lawyer came into possession of information on proposed privatisation of listed subsidiary - Lawyer acquired and later sold off shares - Whether lawyer purchased shares while in possession of material non-public information - When trading prohibition takes effect - Whether lawyer came into possession of material non-public information - Whether lawyer knew or ought to have known that information was not generally available - Whether lawyer in contravention of trading prohibition - Whether mens rea ingredient ought to be proven - Whether ingredients of trading prohibition satisfied - Securities Industry Act 1983, ss. 89E & 90

 

 

 

AZIZUL AZMI ADNAN J

  • For the plaintiff - SM Shanmugam, CK Lung, Siew Hui Yi, Mageswary Karropiah & Daniel Arif Tung; M/s Lee Hishammuddin Allen & Gledhill
  • For the defendant - Gopal Sreenevasan, Mark Lau & Talitha Shim; M/s Sreenevasan Young

1. An adjournment by a chairman of a meeting cannot be tainted by conduct that disregards the will of the shareholders at the meeting;
2. A fresh special notice under s. 322(1) of the Companies Act 2016 is not required to be issued upon the reconvening of an adjourned extraordinary general meeting; and
3. A failure to issue a notice of meeting, under s. 321(1) of the Act, to an auditor is an irregularity which is curable under s. 582 of the Act.
Teo Kim Hui & Ors v. Golden Plus Holdings Bhd & Another Case [2021] 7 CLJ 965 [HC]

COMPANY LAW: Meetings - Adjournment - Chairman - Conduct of chairman - Chairman adjourned meetings - Whether chairman's actions impartial and neutral - Whether chairman discharged responsibilities and executed duties - Whether adjournment tainted by conduct of chairman - Whether chairman's conduct disregarded will of shareholders at meeting

COMPANY LAW: Meetings - Special notice - Removal of directors - Extraordinary general meeting adjourned - Whether fresh special notice required to be issued upon reconvening of adjourned extraordinary general meeting - Companies Act 2016, s. 322(1)

COMPANY LAW: Meetings - Extraordinary general meeting - Auditor - Notice of meeting not issued to auditor - Whether irregularity - Whether curable - Companies Act 2016, ss. 321(1) & 582

 

 

 

AHMAD FAIRUZ ZAINOL ABIDIN J

  • For the plaintiffs - Michael KT Chow & Wendy Yeong; M/s Michael Chow
  • For the defendants - K Shanmuga & Kee Hui Yee; M/s Kanesalingam & Co

ARTICLES

CLJ Article(s)

  1. ABATEMENT OF CRIMINAL APPEAL IN THE COURT OF APPEAL UPON THE DEATH OF APPELLANT/ACCUSED [Read excerpt]
    by MOHD TAUFIK MOHD @ MOHD YUSOFF* [2021] 7 CLJ(A) xxiii

  2. [2021] 7 CLJ(A) xxiii
    logo
    MALAYSIA

    ABATEMENT OF CRIMINAL APPEAL IN THE COURT OF APPEAL UPON THE DEATH OF APPELLANT/ACCUSED

    by
    MOHD TAUFIK MOHD @ MOHD YUSOFF*

    Introduction

    Section 320 of the Criminal Procedure Code ('CPC') deals with the issue of abatement of appeal in criminal appeal upon the death of the appellant/accused. The said s. 320 of the CPC provides:

    Death of parties to appeal

    Every appeal under section 306 shall finally abate on the death of the accused, and every other appeal under this Chapter (except an appeal against a sentence of fine) shall finally abate on the death of the appellant.

    There are two limbs under the said section as regard to the abatement of appeal on the death of the appellant/accused.

    The first limb is in relation to an appeal against acquittal under s. 306 of the CPC. Section 306 provides:

    Appeal against acquittal

    306. When an accused person has been acquitted by a Magistrate there shall be no appeal except by, or with the sanction in writing of, the Public Prosecutor.

    The second limb is in regard to the appeal filed to the High Court from the lower court which provides that any appeal, with the exception to an appeal against a sentence of fine, shall finally abate on the death of the appellant.

    . . .

    * Currently serving as Sessions Court Judge in Miri.


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LNS Article(s)

  1. AN OVERVIEW OF ANTI-MONEY LAUNDERING LEGISLATIVE FRAMEWORK IN MALAYSIA: CRIMINALIZATION, PRACTICE AND CHALLENGES [Read excerpt]
    by Jason Tan Wei Yew* [2021] 1 LNS(A) cviii

  2. [2021] 1 LNS(A) cviii
    logo
    MALAYSIA

    AN OVERVIEW OF ANTI-MONEY LAUNDERING LEGISLATIVE FRAMEWORK IN MALAYSIA:
    CRIMINALIZATION, PRACTICE AND CHALLENGES


    by
    Jason Tan Wei Yew*

    The Kuala Lumpur High Court Judge, Mohamad Nazlan Mohamad Ghazali, had on 28 July 2020, sentenced the former Malaysian Prime Minister, Dato' Sri Najib Razak, to 12 years in prison and a fine of RM210 million (or US$49.38 million), following a guilty verdict in his first corruption trial involving millions of Ringgit linked to state fund, 1Malaysia Development Berhad (1MDB).[1] The 1MDB scandal involved the embezzlement and laundering of billions of US Dollars from its accounts together with gains from bribery and bond pricing, facilitated by false declarations by its officials and others.[2] The 1MDB scandal reveals that Malaysian reporting institutions are vulnerable to exploitation by organized criminals to launder money undetected,[3] which could lead to economic ruin to the country.[4]

    . . .

    *Master of Laws, International Banking & Finance Law, University of the West of England, Bristol; and Bachelor of Laws (Hons) of University of Aberystwyth, Wales. Email: jasontan@wytanms.com


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  3. WHY SABAH'S DEPARTMENT OF LANDS & SURVEYS DESERVES A BETTER LAND DEALING PLATFORM THAT THE PUBLIC CAN RELY ON [Read excerpt]
    by Chris KH Kwan* [2021] 1 LNS(A) cix

  4. [2021] 1 LNS(A) cix
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    MALAYSIA

    WHY SABAH'S DEPARTMENT OF LANDS & SURVEYS DESERVES A BETTER LAND DEALING PLATFORM THAT THE PUBLIC CAN RELY ON

    by
    Chris KH Kwan*

    A. Introduction

    [1] Currently in Sabah, we have the Department of Lands & Surveys's Land Dealings Electronic Submission System or "LADESS" which is accessible on http://www.lands.sabah.gov.my/ladess/index.cfm. In principle, it is merely an online platform to submit data by legal firms to the Department whereby the Department would otherwise have to input same data themselves in the past. It does not actually handle any dealings or transactions because those transactions require the presentation of physical titles to the Department which need to be endorsed together with their twin office original title. In short, "LADESS" is for data submission at the risk of the legal firms to reduce the input needed at the Department's level. One of the frequent complaints is that dealings take months (not days) to complete, which is clearly below expectations for a technologically inclined State such as Sabah. To begin, we need to understand what we need.

    . . .

    *Advocate & Solicitor.


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  5. THE PRIVATE LIVES OF EMPLOYEES: REVISITED+ [Read excerpt]
    by John Wilson* Kieran Pender** [2021] 1 LNS(A) cvii

  6. [2021] 1 LNS(A) cvii
    logo
    AUSTRALIA

    THE PRIVATE LIVES OF EMPLOYEES: REVISITED+

    by
    John Wilson*
    Kieran Pender**

    Are there limitations on an employee's right to a private life? John Wilson and Kieran Pender discuss the evolution of employer oversight beyond the confines of the workplace in the context of recent public sector employment cases.

    “I do not doubt that the applicant’s behaviour …was foolish and an error of judgment. He made a mistake. But employers do not have an unfettered right to sit in judgment on the out of work behaviour of their employees. An employee is entitled to a private life.”

    —Vice President Ross, Rose v. Telstra[1]

    Few tasks in employment law are more vexing than locating the precise boundary between work and play.

    Much ink has been spilt on the scope of employers’ ability to regulate the out-of-hours conduct of employees. Indeed, it is a topic we have considered from time to time in these pages. But the qualifications that necessarily attach to the statement by Vice President Ross in Rose v. Telstra Corporation Ltd, that employees are entitled to a private life, remain a source of disagreement.

    . . .

    +Published with kind permission of the Law Society of the Australian Capital Territory. See Ethos No. 260 Winter 2021.

    *John Wilson is the managing legal director at Bradley Allen Love Lawyers.

    **Kieran Pender is a visiting fellow at the Australian National University's Centre for International and Public Law.

    The views expressed here are their own.


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LEGISLATION HIGHLIGHTS

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) 345/2021 Registration of Pharmacists (Amendment of First Schedule) Order 2021 25 August 2021 26 August 2021 ACT 371
PU(A) 344/2021 Income Tax (Exemption) (No. 9) Order 2021 23 August 2021 Year of assessment 2021 until the year of assessment 2022 ACT 53
PU(A) 343/2021 Ministers of The Federal Government (No. 2) Order 2021 21 August 2021 21 August 2021 ACT 2
PU(A) 342/2021 Medical (Amendment of Second Schedule) (No. 7) Order 2021 19 August 2021 20 August 2021 ACT 50
PU(A) 341/2021 Proclamation - Summon The Parliament 18 August 2021 19 August 2021 ACT 000

PU(B)

Number Title Date of Publication In force from Principal/ Amending Act No
PU(B) 438/2021 Notice Regarding The Certification and Inspection of The Supplementary Electoral Roll For The Second Quarter of The Year 2021 - Perak 26 August 2021 27 August 2021 PU(A) 293/2002
PU(B) 437/2021 Notice Regarding The Certification and Inspection of The Supplementary Electoral Roll For The Second Quarter of The Year 2021 - Penang 26 August 2021 27 August 2021 PU(A) 293/2002
PU(B) 434/2021 Notice Regarding The Certification and Inspection of The Supplementary Electoral Roll For The Second Quarter of The Year 2021 - Kedah 26 August 2021 27 August 2021 PU(A) 293/2002
PU(B) 432/2021 Notice To Third Parties 25 August 2021 26 August 2021 ACT 613
PU(B) 431/2021 Appointment of Notaries Public Under Subsection 3(1) 25 August 2021 Specified in column (3) of the Schedule ACT 115

Legislation Alert

Updated

Act/Principal No. Title Amended by In force from Section amended
ACT 371 Registration of Pharmacists Act 1951 (Revised 1989) PU(A) 345/2021 26 August 2021 First Schedule
AKTA 50 Akta Perubatan 1971 PU(A) 342/2021 20 Ogos 2021 Jadual Kedua
ACT 50 Medical Act 1971 PU(A) 342/2021 20 August 2021 Second Schedule
PU(A) 37/2017 Companies Regulations 2017 PU(A) 339/2021 19 August 2021 Schedule
PU(A) 445/2017 Customs Duties (Exemption) Order 2017 PU(A) 335/2021 13 August 2021 Schedule

Revoked

Act/Principal No. Title Revoked by In force from
PU(A) 337/2021 Perintah Menteri-Menteri Kerajaan Persekutuan 2021 PU(A) 343/2021 21 Ogos 2021
PU(A) 337/2021 Ministers of the Federal Government Order 2021 PU(A) 343/2021 21 August 2021
PU(A) 201/2020 Perintah Menteri-Menteri Kerajaan Persekutuan (No. 3) 2020 PU(A) 337/2021 16 Ogos 2021
PU(A) 201/2020 Ministers of the Federal Government (No. 3) Order 2020 PU(A) 337/2021 16 August 2021
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