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Issue #47/2021 25 November 2021

New This Week Case(s) of the Week TAMILARASAN SUBRAMANIAM v. TIMBALAN MENTERI DALAM NEGERI, MALAYSIA & ORS [2021] 10 CLJ 163 Appeal Updates Appeal Updates Latest Cases Legal Network Series CLJ 2021 Volume 10 (Part 2) Articles LNS Article(s) Legislation Highlights Principal Acts Amending Acts PU(A) PU(B) Legislation Alert

TAMILARASAN SUBRAMANIAM v.
TIMBALAN MENTERI DALAM NEGERI, MALAYSIA & ORS [2021] 10 CLJ 163
FEDERAL COURT, PUTRAJAYA
ABDUL RAHMAN SEBLI FCJ; ZABARIAH MOHD YUSOF FCJ; HASNAH MOHAMMED HASHIM FCJ
[CRIMINAL APPEAL NO: 05(HC)-11-01-2021(B)]
15 SEPTEMBER 2021

ADMINISTRATIVE LAW: Habeas corpus - Application for - Allegation that there was delay of 36 days by police investigating officer in submitting investigation report to inquiry officer of Home Affairs Ministry and to Deputy Minister of Home Affairs - Whether there was such delay - Whether applicant prejudiced - Dangerous Drugs (Special Preventive Measures) Act 1985, ss. 3(1), 3(2), 3(3), 5(4) & 6(1)

ADMINISTRATIVE LAW: Habeas corpus - Application for - Allegation that Advisory Board refused to issue subpoenas ad testificandum, causing grave injustice to applicant - Whether mandatory procedural requirement for Advisory Board to accede to request by detainee to summon witnesses whom he wishes to call at representation hearing - Dangerous Drugs (Special Preventive Measures) Act 1985, s. 12

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1. So Thian Wan v. Tan Soon Teik [2021] 1 LNS 1261 (CA) overruling in part the High Court case of So Thian Wan lwn. Tan Soon Teik [2019] 1 LNS 2028

2. Ku Ek Mei v. Pemungut Duti Setem UTC Johor Bahru [2021] 1 LNS 1171 (CA) overruling the High Court case of Ku Ek Mei v. Pemungut Duti Setem UTC, Johor Bahru [2020] 1 LNS 167

Legal Network Series

[2020] 1 LNS 52	THEOW SAY KOW @ TEOH KIANG SENG, HENRY v. GRACEFUL FRONTIER SDN BHD & ORS Recantation is a formal withdrawal of earlier testimony of a witness. Leave of the Court is required to recall the witness to give evidence for the purpose of recantation of earlier testimony and such leave is only granted when there are sufficient and satisfactory reasons for recalling the witness. Once the Court exercises its discretion to recall the witness, all parties must be given the right to further cross-examine and re-examine the said witness. CONTRACT: Agreement - Share sale agreement - Existence of agreement disputed - Disposal of substantial assets of company through sale of shares - Sale of share not reflected in company's record - Whether Court was required to examine terms of agreement and consider party who asserts an agreement is valid had fulfilled his obligations - Whether written agreement has to be read on its own - Whether share sale agreement could be genuine in absence of proof of payment EVIDENCE: Witness - Recalling - Recantation - Witness reappeared in Court after being discharged by Court earlier - Witness elected not to be re-examined after having completed her evidence - Witness subsequently lodged police report alleging being coached - Witness reappeared in Court with new solicitor and requested to be recalled - Right to cross-examine witness upon recalling - Whether leave of Court required to recall witness for recantation of testimony - Whether sufficient and satisfactory reasons must be shown to recall witness - Whether all parties must be given right to further cross-examine and re-examine witness that was recalled - Whether refusal of leave to cross-examine witness by a party had caused prejudice and occasioned serious and grave miscarriage of justice - Evidence Act 1950, s. 138 EVIDENCE: Burden of proof - Forgery of signature - Allegation that agreement not genuine due to forgery - Whether burden of proof to prove that agreement is valid and enforceable remains at all times throughout trial on party who asserts agreement was genuine - Whether agreement proven to be bona fide - Whether standard of proof required is on balance of probabilities - Whether Court or expert witness determines veracity of impugned signature - Whether Court is final arbiter to determine genuineness of document alleged to be forged - Whether specimens relied by expert for appropriate comparisons must be from contemporaneous specimen signatures TRUST: Constructive trust - Existence of a trust - Second class of constructive trust - Shares in family companies - Advancement of money made by a party to company to purchase lands - Whether there was document evidencing existence of trust - Whether party who purchased land has beneficial interest in land - Whether equity, good conscience and justice demand assertion of beneficial interests in lands For the appellant - Gurdial Singh Nijar, Liza Chan, Joshua Kevin Sathiaseelan, Leng Wie Mun, Lam Tse Heung, Abraham Au, Damien Chan & Farhanna Roslan; M/s Kevin & Co For the 1st-4th, 9th-16th respondents - Cyrus Das, Ranjit Singh, Raj Shankar, Gregory Ling, V Arivanandhan & Lee Mei Xian; M/s Ranjit Singh & Yeoh For the 5th respondent - Radzlan Hadri & HK Chong; M/s Lim Cheng Poh & Partners For the 6th-8th respondents - P Navaratnam; M/s Nava & Associates For the 17th respondent - Cheah Ee Keong; M/s See Ramsun & Tan For the 18th respondent - Poh Choo Hoe & Sanjiv Naddan; M/s Shook Lin & Bok
[2020] 1 LNS 56	JEFFREY TAHIL v. PP Both defences of sudden fight and grave and sudden provocation are only available when the defence has discharged the legal burden to prove that the fight is not only sudden but there is no premeditation and the act was committed in the heat of passion without the accused taking undue advantage or acting in a cruel or unusual manner. CRIMINAL PROCEDURE: Defence - Grave and sudden provocation - Murder - Deceased died as a result of fatal stab wound - Accused was continuously insulted by deceased - Accused approached deceased with knife in his possession before incident - Accused had seething anger and ill-feelings towards deceased - Accused acted in cruel manner and continued to attack deceased even after deceased fell on the ground - Defence of sudden fight not raised to prosecution's witness - Whether accused could rely on defence of cumulative provocation - Whether defence of grave and sudden provocation available when provocation was not sudden - Whether defence available when there was evidence of premeditation on part of accused For the appellant - Abdul Gani B Zelika; M/s Johari, Zelika & Amin For the respondent - Muhammad Azmi Mashud, DPP; Attorney-General's Chamber
[2020] 1 LNS 66	MOHD FAIZUL ABDUL JALIL v. PP The mere fact that an accused is a person with a disability would not exempt him from being subjected to a reasonable man test when considering the defence of grave and sudden provocation. CRIMINAL LAW: Murder - Intention - Circumstantial evidence - Deceased died as a result of stab wound to stomach - Witness confirmed accused purchased knife few hours before incident - Accused went to see victim with knife in his possession - Whether there was a preparatory act consistent with premeditation - Whether stab wound to abdomen sufficient in ordinary course of nature to cause death - Whether accused had requisite intention to cause death of deceased CRIMINAL PROCEDURE: Defence - Grave and sudden provocation - Accused is a person with disability - Accused was a sensitive soul and hot-tempered - Accused admitted stabbing victim but alleged it was out of anger - Whether stabbing accidental - Whether accused should be subjected to a reasonable man test despite his disability - Whether defence of grave and sudden provocation available in absence of any evidence of provocation For the appellant - Hamid Ismail; M/s Hamid & Co For the respondent - Nahra Dollah; Deputy Public Prosecutor, Attorney-General's Chambers
[2019] 1 LNS 933	KIRETHI VASAN MURUGESWARAN lwn. PP Setelah pihak pendakwaan berjaya membuktikan satu kes terhadap tertuduh melalui keterangan saksi-saksi yang sedia ada, maka kegagalan pihak pendakwaan untuk memanggil saksi yang lain tidak akan menarik tanggapan bahawa pihak pendakwaan menyembunyikan atau memendapkan suatu keterangan. KETERANGAN: Anggapan bertentangan - Kegagalan pendakwaan memanggil saksi - Saksi-saksi mata tidak dipanggil untuk memberikan keterangan - Saksi-saksi hadir dan melihat mangsa telah diserang - Sama ada wujud pemendapan keterangan oleh pihak pendakwaan - Sama ada anggapan bertentangan wajar dibangkit terhadap pihak pendakwaan atas kegagalan memanggil saksi walaupun pihak pendakwaan telah berjaya membuktikan kesnya - Sama ada terdapat keterangan yang cukup untuk pihak pendakwaan membuktikan kesnya - Akta Keterangan 1950, s. 114(g) PROSEDUR JENAYAH: Pengecaman - Pengecaman tertuduh - Pengecaman dari kandang saksi - Pertuduhan menyebabkan cedera parah dengan menggunakan senjata parang - Tertuduh memakai helmet tetapi muka tidak ditutup - Mangsa mengenali penyerang - Sama ada tertuduh telah dicam secara positif oleh mangsa sebagai orang yang menyerang mangsa - Sama ada pengecaman dari kandang saksi adalah memadai UNDANG-UNDANG JENAYAH: Kanun Keseksaan - Seksyen 326 - Pertuduhan menyebabkan cedera parah dengan menggunakan senjata - Mangsa mengalami cedera parah akibat ditetak oleh tertuduh menggunakan parang - Tertuduh telah dicam oleh mangsa - Sama ada tertuduh mempunyai niat untuk menyebabkan kecederaan parah terhadap mangsa - Sama ada intipati kesalahan telah dibuktikan Bagi pihak perayu/responden - Gabriel Gobeekrishnan Susayan; T/n Gerard Lazarus & Associates Bagi pihak pendakwaan/responden - Nurul Izzah Abdul Mutalib, Timbalan Pendakwa Raya; Pejabat Penasihat Undang-Undang Negeri Selangor
[2019] 1 LNS 942	N INTERNATIONAL LTD lwn. AHMAD AFIFI AFFIQ KHALID & ORS Kausa tindakan berasaskan tort kelirupaan cap dagangan hanya wujud sekiranya semua elemen-elemen bawah s. 82(2) Akta Cap Dagangan 1976 telah dibuktikan. Kegagalan membuktikan satu elemen sahaja boleh menyebabkan tindakan tersebut dibatalkan. PROSEDUR SIVIL: Pembatalan - Tindakan - Tindakan berasaskan tort kelirupaan cap dagangan - Sama ada semua elemen bawah s. 82(2) Akta Cap Dagangan 1976 telah dipatuhi - Sama ada tindakan plaintif boleh dipertahankan apabila plaintif gagal membuktikan cap dagangan yang dipertikaikan mempunyai persamaan yang boleh menyebabkan kekeliruan kepada pengguna - Sama ada tindakan plaintif wajar dibatalkan TORT: Kelirupaan - Cap dagangan - Pertikaian berkenaan pengunaan logo 'N' - Logo 'N' pihak-pihak mempunyai reka bentuk yang berlainan dan dipaparkan bersama huruf yang berlainan - Sama ada plaintif adalah pemilik eksklusif logo yang dipertikaikan - Sama ada logo yang dipertikaikan mempunyai persamaan yang boleh menyebabkan kekeliruan kepada pengguna Bagi pihak plaintif - Aswandi, Mohd Irwan Shah & Muhammad Syamir; T/n Aswandi Hashim & Co Bagi pihak responden - Azrul Hamid; T/n Azrul, Liew & Co

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CLJ 2021 Volume 10 (Part 2)

In a detention under the Dangerous Drugs (Special Preventive Measures) Act 1985, it stands to reason that if the arrested person is allowed by s. 3(2) of the Act to be detained in police custody for up to 60 days pending the decision of the Minister under s. 6(1), it cannot be a breach of procedure for the Investigating Officer to commence his investigation and for the Inquiry Officer to commence his inquiry at any time and before the expiry of the said 60-day detention period. What is procedurally important is for the investigation report and the inquiry report to be submitted to the Minister before the 60-day detention period. That done, there can be no valid complaint of procedural non-compliance by the Investigating Officer of the Inquiry Officer.
Tamilarasan Subramaniam v. Timbalan Menteri Dalam Negeri, Malaysia & Ors [2021] 10 CLJ 163 [FC]

• SUBJECT
• CORAM
• COUNSEL

In the context of the cumulative operatives of ss. 124 and 204D of the National Land Code, ie, where an application for a change of land use (from residential to commercial) had been made to and approved by the Land Administrator, a tenancy agreement entered into in respect of a property under the circumstances cannot be said to be illegal or void ab initio simply because no formal endorsement on such commercial use has been endorsed on the issue document of title; what more when the obligatory tax assessed on the commercial rate on the property had already been paid by the tenant. This must be the obtaining legal position, as, with the approval and full satisfaction of the condition imposed to effect the change of land use, what was left was only the administrative act of endorsing the change of land title.
Tan Sri Dato’ Lim Cheng Pow v. Bellajade Sdn Bhd & Another Appeal [2021] 10 CLJ 183 [FC]

• SUBJECT
• CORAM
• COUNSEL

In order for a decision to be binding retrospectively, the case must still be at the trial stage; it does not apply to a case which has been fully tried and decided by the court of first instance; the doctrine of prospective overruling ought to apply only to future cases, more so, where the retrospectivity of the case would lead to injustice.
Tekun Nasional v. Plenitude Drive (M) Sdn Bhd & Another Appeal [2021] 10 CLJ 206 [FC]

• SUBJECT
• CORAM
• COUNSEL

There are only two standards of proof ie beyond reasonable doubt for criminal cases and balance of probabilities for all civil cases, even if criminality is alleged, since the landmark decision of the Federal Court in Sinnaiyah & Sons Sdn Bhd v. Damai Setia Sdn Bhd. The standard of proof for fraud, which is on the balance of probabilities, does not get higher. When an allegation is made pertaining to fraud or conspiracy to defraud or fraudulent misrepresentation, the question that a trial judge has to ask, and answer, is whether the plaintiff had proved it on a balance of probabilities on the evidence presented. There is no intermediate standard of proof between the two.
Khalek Awang & Anor v. Koperasi Perumahan Klu ang Bhd & Another Appeal [2021] 10 CLJ 238 [CA]

• SUBJECT
• CORAM
• COUNSEL

The applicant, although entitled to present a petition to tax the bill of costs as it is a party liable to pay costs within the meaning of s. 126 of the Legal Profession Act 1976, will fail in its application when it breaches the six-month limitation period in obtaining the order for taxation and fails to provide reasons constituting 'special circumstances' under s. 128 to extend time to tax bill of costs.
Tetuan Azim, Tunku Farik & Wong v. Tetuan Ong Partnership [2021] 10 CLJ 258 [CA]

• SUBJECT
• CORAM
• COUNSEL

A sale and purchase agreement, described as a Schedule H agreement, made pursuant to reg. 11 of the Housing Development (Control and Licensing) Regulations 1989 that varies its terms is null and void from its inception because the Housing Controller has no power under the law to grant any extension of time on the delivery of vacant possession and completion of the common facilities beyond the 36 months period prescribed. Parties to a Schedule H agreement cannot contract out of the scheduled form.
UE E&C Sanjia (M) Sdn Bhd v. Lee Jeng Yuh & Anor And Another Appeal [2021] 10 CLJ 271 [CA]

• SUBJECT
• CORAM
• COUNSEL

An applicant's case of contempt stands or falls on whatever is contained within the parameters of the statement filed pursuant to O. 52 r. 3(2) of the Rules of Court 2012. The respondent is entitled to know of the allegation against him in the clearest terms, as otherwise, the respondent would be severely prejudiced in formulating a defence or response to the allegations levelled against him.
Attorney General v. Lokman Noor Adam [2021] 10 CLJ 282 [HC]

• SUBJECT
• CORAM
• COUNSEL

Hakim Mahkamah Sesyen khilaf apabila mendapati bayaran pelaburan menjadi 'deposit' bawah peruntukan s. 136 Akta Perkhidmatan Kewangan 2013 tanpa apa-apa bukti berkaitan perjanjian atau terma-terma yang dipersetujui antara pelabur dan syarikat pelaburan mengenai pembayaran semula wang pelaburan oleh pelabur kepada syarikat pelaburan.
Nanthakumar N Pitchai Manickam lwn. PP [2021] 10 CLJ 296 [HC]

• SUBJECT
• CORAM
• COUNSEL

A cause of action in unjust enrichment can give rise to a right to restitution where it can be established that: (i) the plaintiff has been enriched; (ii) the enrichment was gained at the defendant's expense; (iii) the retention of the benefit by the plaintiff was unjust; and (iv) there is no defence available to extinguish or reduce the plaintiff's liability to make restitution.
Transnasional Express Sdn Bhd & Ors v. Tan Chong Industrial Equipment Sdn Bhd [2021] 10 CLJ 314 [HC]

• SUBJECT
• CORAM
• COUNSEL

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LNS Article(s)

1. HUMAN TRAFFICKERS: ARE THEY ALL BAD? ^{[Read excerpt]}
   by Haezreena Begum Abdul Hamid [2021] 1 LNS(A) cxliv

[2021] 1 LNS(A) cxliv



MALAYSIA

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HUMAN TRAFFICKERS: ARE THEY ALL BAD?

by
Haezreena Begum Abdul Hamid

ABSTRACT

This article seeks to extend the sex trafficking literature by addressing the knowledge gap surrounding sex traffickers. The 'ideal' victims of sex trafficking are commonly portrayed as innocent young girls from foreign countries who are forced, manipulated, lied to, often kidnapped by strangers, and are eager to be rescued while the 'ideal trafficker' is projected diametrically opposed to the imagery of an 'ideal victim'. This depiction is shaped by popular images about who should be a criminal and who should be a victim. Therefore, this article aims to analyse and explore the reality behind such images through media reports and interviews conducted with migrant trafficked women who have been trafficked into Malaysia for the purpose of sexual exploitation. The article will discuss two main points: that most traffickers are known to the victim and do not fit the 'ideal' trafficker script, and that the 'ideal trafficker' image does not represent the entirety of all trafficker's demeanour and behaviour. Within this analysis, the article will also explore these women's perception of their traffickers and if they perceive their migration as an opportunity to work or an unfortunate episode in their lives. The article will conclude by asserting that stereotypical images of an 'ideal trafficker' has the potential of diverting the authorities from identifying and detecting all types of traffickers and blurring the understanding of human trafficking.

. . .

*Senior Lecturer, Faculty of Law, University Malaya, Kuala Lumpur.

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2. NOTICE OF BOARD MEETING: HOW MUCH TO DISCLOSE?* ^{[Read excerpt]}
   by SM Shanmugam and Hooi Chung Wai** [2021] 1 LNS(A) cxlv

[2021] 1 LNS(A) cxlv



MALAYSIA

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NOTICE OF BOARD MEETING: HOW MUCH TO DISCLOSE?*

by
SM Shanmugam and Hooi Chung Wai**

The primary function of a board of directors, as the principal management organ of a company, is to meet and discuss the company's business upon being summoned by fellow directors. The question of whether it is necessary to give notice not only of the meeting, but also of the business to be transacted at the meeting, was answered in the negative in the seminal decision of La Compagnie,^[1] where Lindley LJ remarked that:

“I am not prepared to say as a matter of law that it is necessary. As a matter of prudence it is very often done, and it is a very wise thing to do it… It is not uncommon for directors conducting a company’s business to meet on stated days without any previous notice being given either of the day or of what they are going to do. Being paid for their services – as they generally are, and as is the case in this company – it is their duty to go when there is any business to be done, and to attend to that business whatever it is; and I cannot now say for the first time that as a matter of law the business conducted at a directors’ meeting is invalid if the directors have had no notice of the kind of business which is to come before them. Such a rule would be extremely embarrassing in the transaction of the business of companies.”

. . .

*This article is reproduced, with permission by Lee Hishammuddin Allen & Gledhill, Advocates & Solicitors, Kuala Lumpur Malaysia.

**Partner and Associate respectively of the Corporate and Commercial Dispute Practice of Lee Hishammuddin Allen & Gledhill.

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