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Issue #49/2021 09 December 2021

New This Week Case(s) of the Week DARSHAN SINGH KHAIRA v. MAJLIS PEGUAM MALAYSIA [2021] 10 CLJ 497 Appeal Updates Appeal Updates Latest Cases Legal Network Series CLJ 2021 Volume 10 (Part 4) Articles LNS Article(s) Legislation Highlights Principal Acts Amending Acts PU(A) PU(B) Legislation Alert

DARSHAN SINGH KHAIRA v. MAJLIS PEGUAM MALAYSIA [2021] 10 CLJ 497
FEDERAL COURT, PUTRAJAYA
ROHANA YUSUF PCA; AZAHAR MOHAMED CJ (MALAYA); HARMINDAR SINGH DHALIWAL FCJ
[CIVIL APPEAL NO: 02(f)-72-09-2019(W)]
13 AUGUST 2021

LEGAL PROFESSION: Practice of law - Practicing as advocate and solicitor - Test for - Mere act of giving legal advice - Isolated acts of giving legal advice - 'Unqualified person' giving legal advice for reward - Whether engaging in legal practice - Whether 'practicing law' - The Sanderson test - Legal Profession Act 1976, ss. 29, 32, 35, 36, 37 & 38

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1. UOB 2006 Nominees Tempatan Sdn Bhd v. Equiticorp Holdings Ltd & Ors [2021] 1 LNS 1134 (CA) overruling the High Court case of United Securities Sdn Bhd v. United Overseas Bank Limited & Ors [2021] 1 LNS 823

2. Chikanso Ansalem Okoli lwn. PP & Satu Lagi Kes [2019] 1 LNS 1854 (CA) menolak sebahagian kes Mahkamah Tinggi PP lwn. Chikanso Ansalem Okoli & Satu Lagi [Perbicaraan Jenayah No: 45A-15-08/2018]

Legal Network Series

[2019] 1 LNS 1089	KETUA PENGARAH LAUT, JABATAN LAUT MALAYSIA & YANG LAIN lwn. STRAITS BUNKER & TRADING SDN BHD & SATU LAGI Tindakan menempatkan kapal bersama-sama anak kapal di tempat terpencil dengan akses yang terhad dan menyekat kebebasan keluar masuk memberi maksud penahanan tak sah bawah s. 365 Kanun Tatacara Jenayah. PROSEDUR JENAYAH: Habeas corpus - Penahanan - Permohonan untuk melepaskan anak kapal yang ditahan oleh Jabatan Laut Malaysia - Permohonan bawah s. 365 Kanun Tatacara Jenayah - Anak kapal ditahan tanpa sebarang perintah - Anak kapal tidak dibawa ke mahkamah untuk permohonan reman - Kapal ditempatkan di kawasan terpencil dengan akses yang terhad - Sama ada penahanan anak kapal adalah salah dan bercanggah dengan Perlembagaan Malaysia - Sama ada Jabatan Laut mempunyai kuasa untuk menyekat kebebasan anak kapal dari meninggalkan kapal - Sama ada anak kapal wajar dilepaskan dan dibebaskan dari tahanan Bagi pihak pemohon - Mohd Noor, Timbalan Pendakwa Raya; Pejabat Penasihat Undang-Undang Bagi pihak responden - T/n Ramli Yusuff & Co
[2019] 1 LNS 1198	PP lwn. RUDIANA RAZALI Tertuduh harus mengetahui pertuduhan terhadapnya dan berupaya untuk menjawab dan membela diri terhadap pertuduhan tersebut dengan sebaik mungkin. Pertuduhan yang defektif akan menyebabkan tertuduh diprejudis dengan serius dan mengakibatkan salah laksana keadilan yang substantial. Pertuduhan yang defektif merupakan suatu kesilapan atau ketinggalan yang tidak boleh dipulihkan. PROSEDUR JENAYAH: Rayuan - Pelepasan dan pembebasan - Kesalahan bawah s. 31(1)(a) Akta Kanak-Kanak 2001 ('Akta 2001') - Tertuduh dituduh atas kesalahan melakukan kecuaian sehingga menyebabkan kanak-kanak mengalami kecederaan - Sama ada perbuatan melakukan kecuaian diperuntukkan bawah s. 31(1)(a) Akta 2001 - Sama ada pertuduhan mematuhi kehendak s. 152(2) Kanun Tatacara Jenayah ('KTJ') - Sama ada pertuduhan terhadap tertuduh defektif - Sama ada pertuduhan defektif mengakibatkan prejudis yang serius dan ketidakadilan terhadap tertuduh - Sama ada pertuduhan defektif boleh dipulihkan bawah ss. 156 dan 422 KTJ - Sama ada tertuduh wajar dibebaskan dan dilepaskan daripada pertuduhan UNDANG-UNDANG JENAYAH: Akta Kanak-Kanak 2001 - Seksyen 31(1)(a) - Kesalahan melakukan kecuaian sehingga menyebabkan kanak-kanak mengalami kecederaan - Mangsa mengalami kelecuran pada bahagian badan akibat terkena air panas di taska - Sama ada wujud keterangan terus yang menunjukkan kecederaan yang dialami oleh mangsa adalah akibat kecuaian tertuduh - Sama ada kehadiran pengasuh yang lain di taska menunjukkan kewujudan kecuaian sumbangan - Sama ada adil untuk tertuduh sahaja dipersalahkan dan dipertanggungjawabkan atas kecederaan yang dialami oleh mangsa Bagi pihak perayu - TPR Mohd Raimi Mohd Ramli, Bahagian Pendakwaan; Jabatan Peguam Negara, Pusat Pentadbiran Kerajaan Persekutuan Bagi pihak responden - Izleen Ismail; T/n Izleen
[2020] 1 LNS 78	PP v. SANI PUAH The defence of accidental and unintentional shooting is not available when the accused was on standby mode and had time to raise his rifle and look at the target before shooting. The accused ought to have known that the weapon used and the injuries it could cause would be so imminently dangerous that it must be in all probability cause death or is likely to cause death. CRIMINAL LAW: Murder - Intention - Deceased killed by gunshot - Witness saw accused pointing his shotgun at deceased - Bullet penetrated through chest - Whether shooting intentional - Whether actus reus could be disputed - Whether deceased died as a result of gunshot wounds caused by accused - Whether prima facie case had been established - Whether accused had mens rea within one of four categories set out in s. 300 of Penal Code - Whether elements of murder proven beyond reasonable doubt CRIMINAL PROCEDURE: Defence - Murder - Accidental and unintentional shooting - Deceased killed by gunshot - Accused on standby mode - Accused thought he shot a bear and claimed shooting accidental - Accused had time to ascertain whether it was really a bear before shooting - Whether shooting could be accidental or unintentional - Whether defence of accidental shooting created reasonable doubt on prosecution's case - Whether accused ought to know that weapon used and injuries it could cause would be imminently dangerous that in all probability it will cause death or is likely to cause death For the prosecution - DPP Franklin Ganggan Anak Bennet; Jabatan Peguam Negara Malaysia For the accused - Teressa Sirri; M/s Chin Lau Wong & Foo
[2020] 1 LNS 79	RHB INSURANCE BERHAD v. SYAHRUL SYAMSUAR & ORS Where a motor insurance policy specifically covers the liability of an insurer to indemnify a passenger carried in the insured vehicle by reason of or in pursuance of a contract of employment, then there should exist sufficient reason for the passenger to be carried as such and sufficient nexus with the passenger's contract of employment for the passenger to be so carried. A passenger would be carried by reason of or in pursuance of a contract of employment although the said passenger was not performing any function that he was employed to perform while travelling in the said insured vehicle or when the passenger was merely travelling to a destination in order to perform a task required of him by his contract of employment at the said destination. INSURANCE: Motor insurance - Liability - Liability of insurer - Liability to third party - Duty to indemnify passenger in insured vehicle who suffered injury as a result of accident - Insured vehicle owned by employer - Passenger merely travelling to discharge function under scope of employment at destination - Passenger not performing any function that he was employed to perform while travelling in insured vehicle - Whether passenger was being carried in insured vehicle pursuant to contract of employment - Whether there was sufficient reason for passenger to be carried in insured vehicle pursuant to contract of employment - Whether passenger was authorised by his employer to travel in insured vehicle - Whether passenger was excluded from policy coverage For the plaintiff - Reuban Netto; M/s Naicker & Associates For the 3rd defendant - Shuroma Guha Thakurta; M/s Manjit & Company
[2020] 1 LNS 81	TEY SAY HOWE v. PUBLIC BANK BERHAD 1. A hirer who intends to challenge an auction price of a vehicle that was repossessed for being undervalued must provide sufficient evidence to substantiate that the value of the vehicle is higher than the auction price. Lack of action by the hirer upon receiving the notices from the owner estops the hirer from subsequently contending that the vehicle was auctioned at undervalue. 2. The fact that only one bidder turned up and made a bid would reveal that the auction price was a fair value and the best price that could reasonably be obtained for the said vehicle. HIRE PURCHASE: Repossession - Instalment in arrears - Bank auctioned off vehicle to recover instalment in arrears - Allegation that owner auctioned vehicle at lower price - Lack of action upon receiving notices - Successful bidder subsequently sold same vehicle at higher price - Only one bidder turned up and made a bid - Whether hirer was able to provide sufficient evidence to substantiate value of vehicle is higher than auction price - Whether mere insurance quotation of a particular year could be relied on to determine estimated value for purpose of auction - Whether auction price was fair value - Whether hirer estopped from challenging auction price For the appellant - Tey Say Howe (in person) For the respondent - Tan Hong Kait, Kwong Hou Ching; M/s Sidek Teoh Wong & Dennis

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CLJ 2021 Volume 10 (Part 4)

Whilst the Legal Profession Act 1976 does not provide any determinative test as to what amounts to 'practicing as an advocate and solicitor', it cannot be promulgated that isolated acts of giving advice can never constitute practicing law; subject to its circumstantial facts, even a single isolated act may and can amount to acting as an advocate and solicitor. The issue is not so much a single or isolated piece of advice but rather whether the impugned act is what a lawyer usually does in carrying out his functions and duties as an advocate and solicitor. And so it must go, in extenso, that an act which lies at the very centre of or so near to the practice of law must amount to practicing law.
Darshan Singh Khaira v. Majlis Peguam Malaysia [2021] 10 CLJ 497 [FC]

• SUBJECT
• CORAM
• COUNSEL

An application for an injunction to restrain a board of directors' special meeting must be filed in the court that has the local jurisdiction to adjudicate the matter. Where therefore the parties' agreement was executed in Sarawak, the special meeting to be restrained was to be held in Sarawak and the directors were all resident in Sarawak, it is incumbent that the application be filed in the High Court in Sarawak, and not in the High Court at Shah Alam as was done here. Opting for the latter choice is a fatal jurisdictional misstep and the application must, on that score, stand dismissed.
Country Heights Holdings Bhd v. Monaliza Zaidel & Ors [2021] 10 CLJ 511 [HC]

• SUBJECT
• CORAM
• COUNSEL

As a matter of priority, a secured creditor, as a statutory lien holder, is entitled to the sale proceeds of a vessel under arrest. Such proceeds cannot be returned to the beneficial owner in liquidation for its eventual distribution in the liquidation process, as the vessel no longer forms part of the common pool of assets available to the beneficial owner and its unsecured creditors; the beneficial owner and the unsecured creditors cannot stake a claim to the proceeds until the secured claim of the secured creditor was satisfied.
Dan-Bunkering (Singapore) Pte Ltd v. The Owners Of The Ship Or Vessel “PDZ Mewah” & Anor [2021] 10 CLJ 537 [HC]

• SUBJECT
• CORAM
• COUNSEL

The main objective of consolidation, pursuant to O. 4 r. 1 of the Rules of Court 2012, is to save costs, time and effort and to make the conduct of several actions more convenient by treating them as one action. However, certain cases may not be consolidated due to complexities such as difference in plaintiffs, causes of action, issues and arguments. A consolidation in the face of such complexities would not outweigh any savings on time and costs, and serve only to complicate and delay the just, expeditious and economical disposal of the suits.
Federal Land Development Authority & Anor v. Tan Sri Hj Mohd Isa Dato’ Hj Abdul Samad & Ors [2021] 10 CLJ 562 [HC]

• SUBJECT
• CORAM
• COUNSEL

There is a difference between a consent order or judgment incorporating the operative terms of a settlement and a Tomlinson order; the latter was contractual in nature where the remedy lies in breach of contract whilst the remedy for breach of consent judgment, wherever appropriate, may be punishable as a contemptuous act. It follows that a purported caveator who has been conferred with a contractual right, but which right did not constitute or confer on him any proprietary interest in land, has no caveatable interest in such land; a caveat entered on such land is therefore wrongful warranting its removal from the register.
Ng Bee Lin v. Ekowood International Bhd & Anor [2021] 10 CLJ 579 [HC]

• SUBJECT
• CORAM
• COUNSEL

Despite the decision of Ang Ming Lee & Ors v. Menteri Kesejahteraan Bandar, Perumahan dan Kerajaan Tempatan & Anor and Other Appeals and the decision in respect of the Housing Development (Control and Licensing) Act 1966 being a social legislation designed to protect house buyers, in so far as the claim of liquidated ascertained damages ('LAD') is concerned, the protective hands of the court should not reach beyond the fence of limitation period which is statutorily prescribed. Otherwise, it would give rise to gravely unfair and disruptive consequences for past transactions. Balance must be struck between the right of the purchasers in enforcing their rights to LAD and the law of limitation which requires strict observation.
Obata Ambak Holdings Sdn Bhd v. Prema Bonanza Sdn Bhd & Other Cases [2021] 10 CLJ 596 [HC]

• SUBJECT
• CORAM
• COUNSEL

The court, in order to preserve the integrity of the administration of justice, is constrained to restrain counsel from continuing to represent accused person, where counsel is putting forward an issue, in direct contradiction of prosecution witness testimony and at the same time. Such act would be against r. 28 of the Legal Profession (Practice and Etiquette) Rules 1978 and the allegation by counsel allegation would be detrimental to the witnesses' credibility.
PP v. V Vigneswaran Naidu Venkatararema Naidu & Other Cases [2021] 10 CLJ 623 [HC]

• SUBJECT
• CORAM
• COUNSEL

Section 376(3) of the Criminal Procedure Code ('CPC') enables the Public Prosecutor to appoint any person deemed 'fit and proper' to be a Deputy or Senior Deputy Public Prosecutor who will be under his general control and direction; hence giving the Public Prosecutor carte blanche for the appointment as he is not confined to the list of persons set out under s. 377 or advocates under s. 379 of the CPC. To suggest that the appointment under s. 376(3) must be in writing when there is no such express requirement in the section unlike ss. 377 and 379, is erroneous.
Rosmah Mansor v. PP [2021] 10 CLJ 638 [HC]

• SUBJECT
• CORAM
• COUNSEL

An application for an order for the production of documents ought to be allowed when the requirements under O. 24 r. 12 of the Rules of Court 2012 ('ROC') is fulfilled, the court is satisfied that the production is necessary to dispose of the matter fairly, and the test of necessity under O. 24 r. 8 of the ROC is met. Order 24 r. 12(2) of the ROC should be interpreted as a two-step process: (i) documents may be ordered to be produced; and (ii) once produced, they may be dealt with in such manner as the court thinks fit.
Yayasan Tuanku Syed Sirajuddin v. Hong Leong Bank Bhd [2021] 10 CLJ 654 [HC]

• SUBJECT
• CORAM
• COUNSEL

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LNS Article(s)

1. REVITALISING ISLAMIC FINANCE ARBITRATION: LAUNCH OF THE AIAC I-ARBITRATION RULES 2021* ^{[Read excerpt]}
   Dato' Nitin Nadkarni and Anis Raihan Asmadi** [2021] 1 LNS(A) cxlix

[2021] 1 LNS(A) cxlix



MALAYSIA

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REVITALISING ISLAMIC FINANCE ARBITRATION:
LAUNCH OF THE AIAC I-ARBITRATION RULES 2021*

Dato' Nitin Nadkarni and Anis Raihan Asmadi**

On 1 November 2021, the Asian International Arbitration Centre (AIAC) launched its all new and improved AIAC i-Arbitration Rules 2021 (2021 i-Rules). The revised rules reflect the AIAC's continuous effort to promote greater efficiency to the Islamic arbitration framework, while remaining faithful to the ethos and principles of Shariah. Significant amendments have been made, including positive structural changes, enhanced reference mechanisms to the Shariah Advisory Council and Shariah Experts, and new provisions on Shariah-guided third party funding.

The key changes of the 2021 i-Rules are summarised below.

. . .

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

**Senior Partner and Associate respectively of the Energy, Infrastructure & Projects and International Arbitration Practice of Lee Hishammuddin Allen & Gledhill.

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2. CROWDFUNDING FOR AFFORDABLE HOUSING ^{[Read excerpt]}
   by Gita Radhakrishna* [2021] 1 LNS(A) cl

[2021] 1 LNS(A) cl



MALAYSIA

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CROWDFUNDING FOR AFFORDABLE HOUSING

by
Gita Radhakrishna*

INTRODUCTION

Financing for affordable housing presents a perennial challenge for both the government and the industry. The current COVID-19 pandemic exacerbated the problem with its economic disruption. The construction industry has been exploring alternatives. With the emergence of disruptive technologies and Fintech, the real estate sector has also been experiencing technological innovations described as 'Prop Tech'. This term generally refers to the use of new digital products within the real estate sector, such as 'software-based platforms that optimise the buying and selling of real estate assets' (Feth, Grüneberg, 2018). Crowdfunding, a form of innovative Fintech, has made its entry into the conservative real estate financing sector. The Malaysian Securities Commission has, under section 34 of the Capital Markets and Services Act 2007, provided a framework for equity crowdfunding for the protection of investors. In the 2019 Budget, the launch of 'FundMyHome', a crowdfunding platform for first-time house buyers, was announced.

. . .

*Faculty of Law, Multimedia University. Email: gita@mmu.edu.my.

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3. INHERITANCE FEUDS* ^{[Read excerpt]}
   by SM Shanmugam and Shona Anne Thomas** [2021] 1 LNS(A) cli

[2021] 1 LNS(A) cli



MALAYSIA

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INHERITANCE FEUDS*

by
SM Shanmugam and Shona Anne Thomas**

It was reported^[1] that when celebrity Prince died in 2016, he left behind an estate estimated at US$200 million — and no Will. Although a judge ruled that the music superstar’s six siblings should inherit his fortune, more than 45 other people claimed to be legitimate beneficiaries. While family squabbles over celebrity estates are foreseeable, inheritance feuds among common folk are not at all rare. This is especially so since globally, we are on the cusp of a sizeable intergenerational wealth transfer as baby boomers enter retirement. Why then is estate planning overlooked by so many? Death is a taboo topic for some but the more commonly shared factors inhibiting proper estate planning is possibly because most people:

(a) assume that they are not wealthy enough to make an estate plan; or

(b) consider themselves too young to do so.

. . .

*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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Principal Acts

Amending Acts

PU(A)

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