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Issue #52/2021
30 December 2021
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New This Week
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CCH & ANOR v. PENDAFTAR BESAR BAGI KELAHIRAN DAN KEMATIAN, MALAYSIA [2022] 1 CLJ 1
FEDERAL COURT, PUTRAJAYA
TENGKU MAIMUN TUAN MAT CJ
NALLINI PATHMANATHAN FCJ
MARY LIM FCJ
HARMINDAR SINGH DHALIWAL FCJ
RHODZARIAH BUJANG FCJ
[CIVIL APPEAL NO: 01(f)-35-11-2020(W)]
19 NOVEMBER 2021
Fundamental rights and provisions must be construed as broadly as possible while provisions which limit those rights must be construed as narrowly as possible. The broadest possible interpretation of the word 'found exposed' in s. 19B of Part III of the Second Schedule of the Federal Constitution ('FC') is to accord it a meaning to include a child abandoned at the place of birth by the birth mother whose identity is unknown. The word 'exposed' must encompass the plight of abandoned newborn children. Once it is shown that a newborn child is 'found exposed', or abandoned, (i) the child is presumed to have been born to a mother who was permanently resident at the place where the finding was made; and (ii) the date of the finding is taken as the date of the birth. Therefore, a child born at a hospital in Malaysia and later abandoned by his/her birth mother is presumed to be born to a mother permanently resident in the Federation. The child then fulfils the requirement of s. 1(a) of Part II read together with s. 19B of Part III of the Second Schedule of the FC, and is therefore entitled to citizenship by operation of law.
CONSTITUTIONAL LAW: Citizenship - Citizenship by operation of law - Malaysian citizen couple adopted abandoned child - Child born in hospital in Malaysia - Identity of birth mother unknown - Birth certificate stated child as non-citizen - Whether child born in Federation - Whether born of at least either one parent who was citizen or of parent permanently resident in Federation - Whether child entitled to citizenship by operation of law by virtue of s. 1(a) of Part II read together with s. 19B of Part III of Second Schedule of Federal Constitution - Concept of jus soli and jus sanguinis
WORDS AND PHRASES: 'any newborn child found exposed in any place' - Section 19B of Part III of Second Schedule of Federal Constitution - Child born in hospital in Malaysia - Identity of birth mother unknown - Birth certificate stated child as non-citizen - Whether child born in Federation - Whether words 'found exposed' include child abandoned at place of birth by birth mother whose identity is unknown - Whether child born to mother permanently resident at place where finding was made - Whether birth mother presumed to be Malaysian - Whether child entitled to citizenship by operation of law by virtue of s. 1(a) of Part II read together with s. 19B of Part III of Second Schedule of Federal Constitution
“This court is of the considered view that since s. 400 of CPC, which is a general law, does not define who is the "officer" that can prove one's previous conviction, by reading such provision harmoniously with the Registration of Criminals and Undesirable Persons Act 1969, which is a specific law relating to the registration of criminals, it is apparent that the "officer" referred to in the CPC is the Registrar of Criminals appointed by the Yang di-Pertuan Agong under s. 3 of the Registration of Criminals and Undesirable Persons Act 1969, whose power among other things is to keep and maintain the particulars of any conviction or sentence in respect of a registrable offence as specified in the First and Second Schedules of the Act.”
“It is clear that to prove one's previous conviction under any law in this country, it is within the power and competency of the Registrar of Criminals for the Federation or any officer appointed by the Yang di-Pertuan Agong pursuant to s. 3 of the Registration of Criminals and Undesirable Persons Act 1969, and no one else.” – per Arik Sanusi Yeop Johari JC in Zul Azuandi Aziz v. PP [2021] 9 CLJ 681
Legal Network Series
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POOBALAN THANABALASINGAM v. TIMBALAN MENTERI DALAM NEGERI MALAYSIA & ORS An investigation officer must offer sufficient explanation to show that a complete investigation report is submitted to the inquiry officer and the Minister with convenient speed. The fact that the investigation officer had to investigate other cases does not justify the delay in submitting the investigation report on the applicant's case. The conduct of the investigation officer in other cases would imply that no further investigation was done on the applicant's case during the said period and that the investigation on the applicant's case was over and completed. ADMINISTRATIVE LAW: Judicial review - Certiorari - Application to quash suspension order issued pursuant to s. 7(1) of Dangerous Drugs (Special Preventive Measures) Act 1985 - Applicant played role of receiving, selling, sending or delivering drugs - Investigation officer failed to provide cogent reasons to explain delay to submit complete report of investigation to inquiry officer and Minister - Whether applicant was acting alone or with participation from other person - Whether investigation officer failed to submit investigation report with convenient speed - Whether there was sufficient explanation offered for delay
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STANDARD CHARTERED SAADIQ BERHAD v. GOH BUCK CHOOI A withdrawal of action with no liberty to file afresh is justified if the withdrawal of action is a tactical manoeuvre by the plaintiff to rectify a weakness in the plaintiff's case and if the defendant would be deprived of an advantage gained in the litigation as a result of such discontinuance. CIVIL PROCEDURE: Appeal - Notice of appeal - Record of appeal - Appeal against any decision other than decision made after trial - Notice of appeal did not follow format required in Form 111A - Omission to insert name of appellant in notice of appeal - Grounds of judgment included in record of appeal - Whether failure to insert name of appellant a fatal error - Whether caused confusion to respondent - Whether there was valid ground to declare appeal to be incompetent - Whether court has discretion to accept irregular notice of appeal and record of appeal having regard to overriding interest of justice CIVIL PROCEDURE: Action - Discontinuance - Plaintiff applied for withdrawal of action with liberty to file afresh - Action not decided on merits - Defendant objected to plaintiff's filing of fresh suit - Plaintiff offered no reason for withdrawal of action - Whether plaintiff could choose to withdraw action merely because limitation had not been set in if action were to be filed afresh - Whether plaintiff must explain reasons for withdrawal - Whether withdrawal of action a tactical manoeuvre to rectify weakness of plaintiff's case - Whether defendant would be deprived of advantage gained in litigation - Whether plaintiff ought to be granted leave to file action afresh after withdrawal of suit
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ABD RAZAK M ABD KARIM & ORS v. DERAS CEMERLANG SDN BHD Where there appears to be late delivery of property and the parties' agreement does not provide a formula for the computation of late delivery damages, the parties are not entitled to use the formula for the computation of late delivery damages as stated in any statute. In such circumstances, the burden is on the party claiming damages to prove, on a balance of probabilities, that he had suffered the alleged damage and the quantum of such damage. CONTRACT: Joint venture - Joint venture agreement ('JVA') - JVA entered between registered proprietor of property and developer - JVA to develop property ('project') - Proprietor's entitlement of certain percentage of total sales value of project - Whether total sales value determined when layout plan was approved or after construction of units - Whether total sales value of project have to be accounted before proprietor's entitlement of total sales value of project could be ascertained - Whether there was any provision in JVA which allows adjustment of entitlement CONTRACT: Building contract - Damages - Damages for late delivery - Joint venture entered between registered proprietor of property and developer to develop property ('project') - Formula for computation of damages not provided in agreement - Whether parties entitled to use formula for computation of damages for late delivery under any statute - Whether burden was on party claiming for damages to prove he had suffered damage complained of and quantum of such damage on balance of probabilities
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LIM PUAY LENG lwn. DR AZHAR ZAINUDDIN & SATU LAGI Seorang doktor yang menjalankan pembedahan ke atas pesakit harus memaklumkan kepada pesakit tentang risiko pembedahan tersebut. Doktor tersebut mempunyai tugas berhati-hati semasa melakukan pembedahan ke atas pesakit tersebut dan harus mengambil langkah-langkah yang wajar dan baik untuk mengelakkan sebarang komplikasi selepas pembedahan. TORT: Kecuaian - Kecuaian perubatan - Pesakit mengalami glaucoma tahap kedua dan tidak pulih selepas pembedahan katarak mata - Doktor hanya memaklumkan pesakit bahawa pembedahan katarak adalah biasa dan ringkas - Doktor hanya menukar preskripsi ubat sahaja bagi meredakan ketidakselesaan yang dialami pesakit setiap kali menghadiri rawatan susulan - Sama ada wujud kecuaian di pihak doktor untuk memaklumkan mengenai risiko pembedahan katarak kepada pesakit - Sama ada doktor telah cuai dalam melaksanakan tugas berhati-hati semasa dan selepas menjalankan pembedahan katarak ke atas pesakit TORT: Kecuaian - Liabiliti secara vikarius - Kecuaian perubatan - Tindakan terhadap hospital - Kecuaian doktor dalam memaklumkan pesakit berkenaan risiko pembedahan katarak - Pesakit mengalami glaucoma tahap kedua dan tidak pulih selepas pembedahan katarak mata - Sama ada majikan dan prinsipal doktor bersama-sama bertanggungan atas kecuaian yang dilakukan oleh doktor sepanjang proses memberi khidmat perubatan kepada pesakit
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MOHAMAD ALIMIN ROSLI lwn. MENTERI DALAM NEGERI, MALAYSIA & YANG LAIN Apabila pemohon dalam prosiding habeas corpus memohon kepada Mahkamah untuk memeriksa balas deponen di dalam afidavit responden, maka Mahkamah boleh memberikan kebenaran kepada pemohon untuk memeriksa balas deponen responden tersebut selagi ianya relevan. PENAHANAN PENCEGAHAN: Perintah tahanan - Habeas corpus - Arahan tunjuk sebab - Kegagalan pegawai tahanan untuk membawa orang dalam jagaan ke Mahkamah pada hari perbicaraan - Permohonan maaf dibuat oleh pegawai tahanan - Sama ada terdapat penjelasan di pihak responden atas kegagalan membawa orang dalam jagaan ke Mahkamah - Sama ada arahan tunjuk sebab wajar dibatalkan PENAHANAN PENCEGAHAN: Perintah tahanan - Habeas corpus - Kebenaran untuk memeriksa balas deponen afidavit responden - Budi bicara Mahkamah - Sama ada Mahkamah mempunyai budi bicara untuk memberikan kebenaran kepada pemohon untuk memeriksa balas deponen afidavit responden - Sama ada kebenaran hanya diberikan sekiranya permohonan memeriksa balas deponen afidavit adalah relevan
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CLJ 2022 Volume 1 (Part 1)
Fundamental rights and provisions must be construed as broadly as possible while provisions which limit those rights must be construed as narrowly as possible. The broadest possible interpretation of the word 'found exposed' in s. 19B of Part III of the Second Schedule of the Federal Constitution ('FC') is to accord it a meaning to include a child abandoned at the place of birth by the birth mother whose identity is unknown. The word 'exposed' must encompass the plight of abandoned newborn children. Once it is shown that a newborn child is 'found exposed', or abandoned, (i) the child is presumed to have been born to a mother who was permanently resident at the place where the finding was made; and (ii) the date of the finding is taken as the date of the birth. Therefore, a child born at a hospital in Malaysia and later abandoned by his/her birth mother is presumed to be born to a mother permanently resident in the Federation. The child then fulfils the requirement of s. 1(a) of Part II read together with s. 19B of Part III of the Second Schedule of the FC, and is therefore entitled to citizenship by operation of law.
CCH & Anor v. Pendaftar Besar Bagi Kelahiran Dan Kematian, Malaysia [2022] 1 CLJ 1 [FC]
CONSTITUTIONAL LAW: Citizenship - Citizenship by operation of law - Malaysian citizen couple adopted abandoned child - Child born in hospital in Malaysia - Identity of birth mother unknown - Birth certificate stated child as non-citizen - Whether child born in Federation - Whether born of at least either one parent who was citizen or of parent permanently resident in Federation - Whether child entitled to citizenship by operation of law by virtue of s. 1(a) of Part II read together with s. 19B of Part III of Second Schedule of Federal Constitution - Concept of jus soli and jus sanguinis
WORDS AND PHRASES: 'any newborn child found exposed in any place' - Section 19B of Part III of Second Schedule of Federal Constitution - Child born in hospital in Malaysia - Identity of birth mother unknown - Birth certificate stated child as non-citizen - Whether child born in Federation - Whether words 'found exposed' include child abandoned at place of birth by birth mother whose identity is unknown - Whether child born to mother permanently resident at place where finding was made - Whether birth mother presumed to be Malaysian - Whether child entitled to citizenship by operation of law by virtue of s. 1(a) of Part II read together with s. 19B of Part III of Second Schedule of Federal Constitution
TENGKU MAIMUN TUAN MAT CJ
NALLINI PATHMANATHAN FCJ
MARY LIM FCJ
HARMINDAR SINGH DHALIWAL FCJ
RHODZARIAH BUJANG FCJ
- For the appellants - Cyrus Das, Raymond Mah, Jasmine Wong & Eric Toh; M/s Mah Weng Kwai & Assocs
- For the respondent - Shamsul Bolhassan & Mazlifah Ayob; SFCs
- For the Bar Council - Low Wei Loke & Larissa Ann Louis
- For the DHRRA - Rani Sreedharan
The National Registration Department is under a statutory duty to record the particulars of the natural father of an illegitimate child and to correct and update such records, when evidence and undisputed facts are available. When a child is fully aware of who his biological father is, the information ought to be reflected in the public record, that is the register. The true status of the child ought to be corrected to reflect accurate information as regards the biological father, as required by the scheme of the Births and Deaths Registration Act 1957.
Leow Fook Keong v. Pendaftar Besar Bagi Kelahiran Dan Kematian Malaysia, Jabatan Pendaftaran Negara, Malaysia & Anor [2022] 1 CLJ 23 [FC]
FAMILY LAW: Children - Illegitimate child - Registration of birth of illegitimate child - Particulars of biological father recorded as 'information unavailable' - Biological father successfully procured order of court declaring him as biological father - Whether register containing incomplete particulars on biological father ought to be updated to reflect declaratory order by court and following undisputed DNA results - Whether declaratory order valid and effective - Whether National Registration Department under statutory duty to record particulars of biological father of illegitimate child and to correct such records when evidence and undisputed facts are available - Whether status of child ought to be corrected to reflect accurate information on biological father - Whether in best interest of child - Births and Deaths Registration Act 1957, ss. 7, 13, 13A, 27, 28, 34 & 39
STATUTORY INTERPRETATION: Births and Deaths Registration Act 1957 - Sections 27 & 28 - Intent of - Whether Registrar-General to take proactive steps towards ensuring all births registered and only best and accurate information entered - Whether object and scheme of Act to compel Registrar-General to carry out statutory duties of correction and updating of records - Whether National Registration Department under statutory duty to record particulars of biological father of illegitimate child - Whether status of child ought to be corrected to reflect accurate information on biological father - Whether in best interest of child - Births and Deaths Registration Act 1957, ss. 7, 13, 13A, 34 & 39
TENGKU MAIMUN TUAN MAT CJ
MOHD ZAWAWI SALLEH FCJ
MARY LIM FCJ
- For the appellant - Balwant Singh Sidhu & Kelvinder Singh Sidhu; M/s Balwant Singh Sidhu & Co
- For the 1st respondent - Suzana Atan & Narkunavathy Sundareson; SFCs & Kogilambigai Muthusamy; FCs
- For the 2nd respondent - Ng Kiam Nam; M/s Ng Kian Nam & Partners
A contract of employment, despite being spelt out as a fixed term contract, is in effect a permanent employment, where the fixed term contract has been renewed successively without application by the employee and without any intermittent breaks and also where the nature of the employment is not temporary or project-based.
A Gilbert D’cruz v. Sapuraacergy Sdn Bhd & Anor [2022] 1 CLJ 49 [CA]
LABOUR LAW: Employment - Contract of employment - Whether genuine fixed term contract or permanent employee - Fixed term contract with automatic renewal without intermittent breaks - Whether employee appointed for specific project or all projects of employer - Whether employee treated as permanent employee - Whether successive renewal of contract without application by employee showed employment intended to be permanent
HAS ZANAH MEHAT JCA
HADHARIAH SYED ISMAIL JCA
MOHD SOFIAN ABD RAZAK JCA
- For the appellant - Asmawi Ismail; M/s I Asmawi & Co
- For the 1st respondent - Edward Saw Keat & Low Kok Kiang; M/s Josephine LK Chow & Co
(i) A matter does not become academic when a party, having known of the injunctive reliefs sought by the other party towards the preservation of the status quo of the agreement that they had entered and the existence of an on-going arbitral proceeding, terminates the agreement to circumvent or defeat such injunctive reliefs sought; (ii) Although the undertaking to damages is an essential element to prove the injunctive reliefs, the quantum and financial means are not cast in stone. Factors such as the nature of the company and the satisfaction of other requirements in proving the injunctive reliefs must be considered broadly and objectively.
Expro Marine Sdn Bhd v. Amalgamated Plant Engineering Sdn Bhd [2022] 1 CLJ 61 [CA]
CIVIL PROCEDURE: Interim orders - Injunctive reliefs - Parties executed agreement for project - One party sought to terminate agreement upon discovery that other party ('applicant') signed contract with unknown third party for project - Applicant sought injunctive reliefs to preserve status quo of parties pending full and final conclusion of arbitration proceedings - Agreement terminated - Whether status quo of parties ought to be preserved - Whether matter academic following termination of agreement - Whether applicant must show means to fulfil valuable undertaking notwithstanding satisfaction of all other requirements - Whether there were bona fide issues to be tried - Whether there was full and frank disclosure of facts - Whether award of damages adequate to compensate applicant if injunctive reliefs not allowed - Whether balance of convenience tilted in applicant's favour - Arbitration Act 2005, s. 11(1)(a), (b) & (c)
NOR BEE ARIFFIN JCA
SUPANG LIAN JCA
GHAZALI CHA JCA
- For the appellant - Lo Mei Chin; M/s Lo & Partners
- For the respondent - Shankar R P Asnani, Russell Lim & Yu Ying Ying; M/s Thomas, Shankar Ram & Co Advocs
In interpreting a taxing statute, in particular, s. 142(5) of the Income Tax Act 1967 ('ITA'), the court ought to adopt a purposive approach and accordingly, the term 'practitioner' in s. 142(5)(b) of the ITA does not include an advocate and solicitor, whose communication with the client is protected with the shield of privilege pursuant to s. 126 of the Evidence Act 1950.
Ketua Pengarah Hasil Dalam Negeri v. Bar Malaysia [2022] 1 CLJ 81 [CA]
LEGAL PROFESSION: Professional privilege - Communication between solicitor and client - Whether client's accounts of law firm may be audited by Inland Revenue Board - Whether audits breached solicitor-client privilege - Whether s. 142(5) of Income Tax Act 1967 ('ITA') overrides s. 126 of Evidence Act 1950 ('EA') - Whether s. 126 of EA expressly and specifically provides privilege for communications between solicitors and client - Whether 'practitioner' in s. 142(5) of ITA refers to and includes 'advocate and solicitor' or other practitioners - Whether use of term 'practitioner' rather than 'advocate and solicitor' indicated intention of Legislature - Whether client's account and information relating thereto fell within purview of s. 126 of EA
STATUTORY INTERPRETATION: Construction of statute - Interpretation - Income Tax Act 1967, s. 142(5) - Whether client's accounts of law firm may be audited by Inland Revenue Board - Whether audits breached solicitor-client privilege - Whether s. 142(5) overrides s. 126 of Evidence Act 1950 ('EA') - Whether s. 126 of EA expressly and specifically provides privilege for communications between solicitors and client - Whether 'practitioner' in s. 142(5) refers to and includes 'advocate and solicitor' or other practitioners - Whether use of term 'practitioner' rather than 'advocate and solicitor' indicated intention of Legislature - Whether client's account and information relating thereto fell within purview of s. 126 of EA
YAACOB MD SAM JCA
S NANTHA BALAN JCA
DARRYL GOON SIEW CHYE JCA
- For the appellant - Ahmad Isyak Mohd Hassan, Mohammad Hafidz Ahmad & Mohammad Danial Ahmad; SRC
- For the respondent - Anand Raj, Foong Pui Chi, Abhilaash Subramaniam; M/s Shearn Delamore & Co
The Port Klang Authority ('PKA'), as a statutory body established under the Port Authorities Act 1963, has a separate salary scheme for its employees from that of the general public service. Even if a statutory body that is funded by the Government and is subject to Ministerial direction could be broadly considered a governmental entity for the purpose of human resource matters, including the service and salary scheme, it must be distinguished from the general public service. 'Lembaga Pelabuhan Kelang - Pemindahan Kepada Tangga Gaji Baru 1.7.1980 Kumpulan D' and 'Nama Skim Perkhidmatan Ad Hoc' are two tables that are irrelevant to a federal officer who remained in the general public service at the time of his retirement and who elected not to join the service of the PKA. The 'Salary Transfer Multiplication Table' is applicable for the purpose of pension re-adjustment in respect of abolished positions in the Government service.
Ketua Pengarah Perkhidmatan Awam & Anor v. Alagan Mayalagan [2022] 1 CLJ 106 [CA]
ADMINISTRATIVE LAW: Judicial review - Appeal against - Appeal by Director-General of Public Services Department ('PSD') - Applicant joined general public service as crane driver - Applicant declined to join service of Port Klang Authority as crane driver (portal) - Applicant compulsorily retired as post abolished - Pension calculated based on last drawn monthly salary in general public service as crane driver (portal) - Coming into force of Pensions Adjustment Act 1980 provides for pensions to be increased by 2% annually - Applicant's last drawn salary adjusted based on salary grade of D38 in Government service - Whether pension should be adjusted based on position of crane driver (high portal), grade D5 - Applicant's appeals to PSD rejected - Applicant appealed to High Court against decision of PSD - High Court allowed re-determination of pension payable - Whether decision valid, rational or proper - Rules of Court 2012, O. 53
YAACOB MD SAM JCA
RAVINTHRAN PARAMAGURU JCA
DARRYL GOON SIEW CHYE JCA
- For the appellant - Liew Horng Bin; SFC
- For the respondent - M Manoharan & Anis Salihah Abdul Malek; M/s M Manoharan & Co
When the housing developer and the purchasers are under the same belief that an extension of the delivery of vacant possession of the project is valid at the time of the execution of the sale and purchase agreements ('SPAs') and the entire extension process is validly performed, the purchasers ought to be estopped from reneging on the SPAs. Whilst it is crystal-clear from the Federal Court case of Ang Ming Lee & Ors v. Menteri Kesejahteraan Bandar, Perumahan dan Kerajaan Tempatan & Anor And Other Appeals that a Housing Controller has no powers to grant extensions under reg. 11(3) of the Housing Development (Control and Licensing) Regulations 1989 which is ultra vires the Housing Development (Control and Licensing) Act 1966, the purchasers' claims for liquidated and ascertained damages is not considered a genuine pursuit when it can potentially result in the purchasers gaining an unfair benefit at the expense of the housing developer, especially when the latter has adhered to the requirements of the Regulations.
Alpine Return Sdn Bhd v. Matthew Ng Hock Sing & Ors [2022] 1 CLJ 120 [HC]
LAND LAW: Housing developers - Sale and purchase agreement ('SPAs') - Delivery of vacant possession - Developer applied to amend and extend period to deliver vacant possession from 36 months to 60 months in Sch. H of Housing Development (Control and Licensing) Regulations 1989 ('Regulations') before commencement of works - Extension allowed pursuant to reg. 11(3) of Regulations - Whether ultra vires Housing Development (Control and Licensing) Act 1966 - Whether extension granted void - Ang Ming Lee & Ors v. Menteri Kesejahteraan Bandar, Perumahan dan Kerajaan Tempatan & Anor And Other Appeals - Whether applicable - Purchasers claimed for liquidated and ascertained damages for late delivery of vacant possession - Whether purchasers attempted to unjustly enrich themselves - Whether doctrine of estoppel by conduct applied - Whether SPAs contractual documents binding contracting parties - Whether SPAs enforceable
LAND LAW: Vacant possession - Delivery of - Housing developers - Sale and purchase agreement ('SPAs') - Developer applied to amend and extend period to deliver vacant possession from 36 months to 60 months in Sch. H of Housing Development (Control and Licensing) Regulations 1989 ('Regulations') before commencement of works - Extension allowed pursuant to reg. 11(3) of Regulations - Whether ultra vires Housing Development (Control and Licensing) Act 1966 - Whether extension granted void - Ang Ming Lee & Ors v. Menteri Kesejahteraan Bandar, Perumahan dan Kerajaan Tempatan & Anor And Other Appeals - Whether applicable - Purchasers claimed for liquidated and ascertained damages for late delivery of vacant possession - Whether purchasers attempted to unjustly enrich themselves - Whether doctrine of estoppel by conduct applied - Whether SPAs contractual documents binding contracting parties - Whether SPAs enforceable
MOHD NAZLAN GHAZALI J
- For the plaintiff - Cecilia Tan Shee Shia, Chia Lui Meng & Soon Zhen Hui; M/s Soh Hayati & Co
- For the defendant - Ashok Kandiah, Norvindran Sivarajah & Lim Jun Yik; M/s Ho Loke & Koh
In allowing bail in a non-bailable offence under s. 302 of the Penal Code, for which the accused was charged, the court revisited the case of PP v. Dato' Balwant Singh, wherein the court stated, inter alia, that the seriousness of the offence could not be the dominant factor; the court ought to also consider the health condition of the accused person.
Hobalan N Vello v. PP [2022] 1 CLJ 151 [HC]
CRIMINAL PROCEDURE: Bail - Non-bailable offence - Charge under s. 302 of Penal Code - Whether accused person fell under category of sick and infirm person within proviso to s. 388 of Criminal Procedure Code to be granted bail - Whether prosecution proved accused to be of flight risk - Whether would tamper with witnesses if released on bail - Whether court should exercise discretion in allowing bail
AMELATI PARNELL JC
- For the applicant - Ram Singh, Kimberly Ye & Chen Wen Jye; M/s Ram Singh & Co
- For the respondent - Azreen Yas Mohamad Ramli; DPP
Although the Child Act 2001 is the specific legislation in an application for a revision on the order imposed by a Magistrate by child applicants who plead guilty to the offence under s. 323 of Penal Code, it could not stand independently when it comes to sentencing. Instead, s. 91(1)(d) of the Child Act 2001 ought to be read harmoniously with s. 323 of Penal Code. It is not the intention of Parliament for a child to pay a heftier fine than an adult of the same offence, thus a child found guilty under the said s. 323 should not be ordered to pay a fine more than RM2,000.
KN (A Child) & Anor v. PP [2022] 1 CLJ 163 [HC]
CRIMINAL PROCEDURE: Revision - Decision of Magistrate - Application for revision on order imposed by Magistrate - Child applicants charged under s. 323 of Penal Code - Magistrate ordered each child applicant fine of RM5,000 in default six months imprisonment - Whether fine imposed should not exceed maximum fine of RM2,000 under s. 323 of Penal Code - Whether s. 91(1)(d) of Child Act 2001 should be read harmoniously with s. 323 of Penal Code
CRIMINAL PROCEDURE: Sentence - Juvenile offender - Child applicants charged under s. 323 of Penal Code - Application for revision on order imposed by Magistrate - Magistrate ordered each child applicant fine of RM5,000 in default six months imprisonment - Whether fine imposed should not exceed maximum fine of RM2,000 under s. 323 of Penal Code - Whether s. 91(1)(d) of Child Act 2001 should be read harmoniously with s. 323 of Penal Code
STATUTORY INTERPRETATION: Construction of statutes - Intention of Parliament - Child Act 2001, s. 91(1)(d) - Whether Legislature intended for child to pay heftier fine than adult for same offence - Whether fine imposed should not exceed maximum fine of RM2,000 under s. 323 of Penal Code - Generalia specialibus non derogant - Applicability - Whether requires specific legislation to prevail over legislation of general nature - Whether s. 91(1)(d) of Child Act 2001 should be read harmoniously with s. 323 of Penal Code
SHAHNAZ SULAIMAN JC
- For the applicant - Vinodharan Mohan; M/s Vinod & How
- For the respondent - Bharathy Balakrishnan; DPP
LNS Article(s)
BLOCKCHAIN AND DATA PROTECTION: RETHINKING THE ESSENCE AND USES OF BLOCKCHAIN* [Read excerpt]
by Ma Siu Cheung** [2021] 1 LNS(A) clviiTHE APPLICATION OF MEDIATION IN RESOLVING HUMAN RIGHTS COMPLAINTS:
COMPARISON BETWEEN THE PRACTICE OF THE HUMAN RIGHTS COMMISSION OF MALAYSIA AND AUSTRALIAN HUMAN RIGHTS COMMISSION [Read excerpt]
by Shahizad Sulaiman* Nur Ezan Rahmat** [2021] 1 LNS(A) clviii
Principal Acts
| Number | Title | In force from | Repealed | Superseded |
| ACT 832 | Societies Act 1966 (Revised 2021) | 1 December 2021 pursuant to paragraph 6(1)(xxiii) of the Revision of Laws Act 1968 [Act 1]; Revised up to 14 November 2021; First enacted in 1966 as Act of Parliament No 13 of 1966; First Revision - 1987 (Act 335 wef 19 October 1987) | - | Societies Act 1966 (Revised 1987) [ACT 335] |
| 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) | - |
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| 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 | - | National Land Code [ACT 56 of 1965] |
Amending Acts
| Number | Title | In force from | Principal/Amending Act No |
| ACT A1637 | National Trust Fund (Amendment) Act 2021 | 9 December 2021 [PU(B) 659/2021] | ACT 339 |
| ACT A1636 | Windfall Profit Levy (Amendment) Act 2021 | 1 December 2021 [PU(B) 614/2021] | ACT 592 |
| ACT A1635 | Temporary Measures For Government Financing (Coronavirus Disease 2019 (COVID-19)) (Amendment) Act 2021 | 18 November 2021 | ACT 830 |
| ACT A1634 | Co-Operative Societies (Amendment) Act 2021 | 1 April 2021 [PU(B) 174/2021] | ACT 502 |
| ACT A1633 | Tourism Tax (Amendment) Act 2021 | 1 April 2021 [PU(B) 148/2021] - s 1, 2, 3, 4, 5, 6, 7, 8, 9, 11, 12, 13, 14, 15, 16, 17, 18, 19 and 20; and s 10 (only for new subsection 20C(3) of the new part VA of the Tourism Tax Act 2017 [Act 791]); 1 July 2021 [PU(B) 148/2021] - s 10 (except for the provision of new subsection 20C(3) of the new part VA of the principal Act) and 21 | ACT 791 |
PU(A)
| Number | Title | Date of Publication | In force from | Principal/ Amending Act No |
| PU(A) 486/2021 | Registration of Pharmacists (Amendment of First Schedule) (Revocation) Order 2021 | 28 December 2021 | 31 December 2021 | ACT 371 |
| PU(A) 485/2021 | Temporary Measures For Reducing The Impact of Coronavirus Disease 2019 (COVID-19) (Extension of Operation) (No. 4) Order 2021 | 28 December 2021 | 29 December 2021 | ACT 829 |
| PU(A) 484/2021 | Labuan Business Activity Tax (Exemption) 2013 (Amendment) Order 2021 | 27 December 2021 | 1 January 2019 | PU(A) 99/2013 |
| PU(A) 483/2021 | Labuan Business Activity Tax Act (Exemption) (No. 2) 2013 (Revocation) Order 2021 | 27 December 2021 | Year of assessment 2020 | ACT 445 |
| PU(A) 482/2021 | Labuan Business Activity Tax (Requirements For Labuan International Commodity Trading Company) Regulations 2021 | 27 December 2021 | 1 January 2019 until 31 December 2020 - Subregulation 3(1); 1 January 2021 - Subregulations 3(2) and 3(3) | ACT 445 |
PU(B)
| Number | Title | Date of Publication | In force from | Principal/ Amending Act No |
| PU(B) 686/2021 | Notice of Proposed Revocation of Reservation of Land For Public Purpose - Lot 2704 Mukim Batu, Kuala Lumpur | 28 December 2021 | 29 December 2021 | ACT 828 |
| PU(B) 685/2021 | Notice To Third Parties | 28 December 2021 | 29 December 2021 | ACT 613 |
| PU(B) 684/2021 | Notice To Third Parties | 28 December 2021 | 29 December 2021 | ACT 613 |
| PU(B) 683/2021 | Notice To Third Parties | 28 December 2021 | 29 December 2021 | ACT 613 |
| PU(B) 682/2021 | Notice of Affirmative Final Determination of an Anti-Dumping Duty Investigation With Regard To The Imports of Stranded Steel Wires for Prestressing Concrete Originating or Exported From The People's Republic of China | 23 December 2021 | 24 December 2021 | ACT 504 |
Legislation Alert
Updated
| Act/Principal No. | Title | Amended by | In force from | Section amended |
| PU(B) 621/2021 | Notis Di Bawah Subperaturan 11(5A) Waktu Mengundi Bagi Pilihan Raya Umum Dewan Undangan Negeri Sarawak | PU(B) 664/2021 | Jadual | |
| PU(B) 621/2021 | Notice Under Subregulation 11(5A) Polling Hours For the General Election of the Legislative Assembly of the State of Sarawak | PU(B) 664/2021 | Schedule | |
| PU(A) 367/2021 | Perintah Duti Setem (Pengecualian) (No. 11) 2021 | PU(A) 439/2021 | 1 Januari 2022 | Perenggan 2 |
| PU(A) 367/2021 | Stamp Duty (Exemption) (No. 11) Order 2021 | PU(A) 439/2021 | 1 January 2022 | Paragraph 2 |
| PU(A) 128/1990 | Peraturan-Peraturan Pendaftaran Jurutera 1990 | PU(A) 438/2021 | 1 Januari 2022 | Peraturan 34A |
Revoked
| Act/Principal No. | Title | Revoked by | In force from |
| PU(A) 219/2011 | Income Tax (Exchange of Information) Rules 2011 | PU(A) 436/2021 | 2 December 2021 |
| PU(A) 435/1994 | Atomic Energy Licensing (Small Amang Factory) (Exemption) Order 1994 | PU(A) 435/2021 | 1 June 2022 |
| PU(A) 476/2010 | Stamp Duty (Remission) (No. 4) Order 2010 | PU(A) 428/2021 | 28 December 2018 |
| PU(A) 392/2018 | Labuan Business Activity Tax (Requirements For Labuan Business Activity) Regulations 2018 | PU(A) 423/2021 | 1 January 2019 except for regulation 3; 1 January 2021 - regulation 3 |
| PU(A) 323/2021 | Proklamasi Darurat (Sarawak) | PU(A) 413/2021 | 4 November 2021 |