CASE(S) OF THE WEEK
BUSING JALI & ORS v. KERAJAAN NEGERI SARAWAK & ANOR AND OTHER APPEALS [2022] 3 CLJ 1
FEDERAL COURT, PUTRAJAYA
ABANG ISKANDAR CJ (SABAH AND SARAWAK); VERNON ONG LAM KIAT FCJ; ZABARIAH MOHD YUSOF FCJ; HASNAH MOHAMMED HASHIM FCJ; HARMINDAR SINGH DHALIWAL FCJ
[CIVIL APPEAL NOS: 01(f)-31-10-2019(Q); 02(f)-77-10-2019(Q); 01(f)-32-10-2019(Q);
01(i)-33-10-2019(Q); 02(i)-79-10-2019(Q) & 02(f)-76-10-2019(Q)]
24 NOVEMBER 2021
The call for the apex court to revisit or review its decision in Director Of Forest, Sarawak & Anor v. TR Sandah Tabau & Ors And Other Appeals [2017] 3 CLJ 1 (TR Sandah 1) is legally unsustainable.
TR Sandah 1, which ruled that the customs of Pemakai Menoa and Pulau Galau were customs that the laws of Sarawak did not recognise as forming part of the laws of the natives of Sarawak, and as such, were customs which had no force of law as envisaged under art. 160(2) of the Federal Constitution, had not been decided per incuriam, and nor had it conflicted with any other decisions of this court. The ruling, which had since gone through at least three judicial scrutinies by this court, was based on an extensive assessment of the laws, both written and unwritten, and the differences, if any, between the judges therein had only to do with their individual interpretation and construction of those laws. The differences being matters of opinion, it is not appropriate for this court to determine whether they had interpreted or applied the law correctly.
The ruling in TR Sandah 1 had also been addressed through legislative intervention by way of amendments made to the Land Code (Sarawak) (Cap 81) in 2018, which recognised Pemakai Menoa and Pulau Galau as customs having the force of law under s. 6A thereof, but which, for inclusiveness, was termed Native Territorial Domain (NTD). This said, sub-s. (6) of s. 6A in respect of NTD in effect provides a 'saving clause' to decisions that had been finally decided by the courts prior to 1 August 2019 such as TR Sandah 1. It follows that the majority ruling on Pemakai Menoa and Pulau Galau in TR Sandah 1 stood as good law from the date of its decision on 20 December 2016 until 31 July 2019. It follows further that all final decisions following TR Sandah 1 handed down before 1 August 2019 were, by necessary implication, similarly preserved.
LAND LAW: Native customary rights - Claim for - Whether natives acquired individual or communal native customary right over State land - Codification of customary practices - Whether given force of law by amendment to Land Code (Sarawak) (Cap 81) ('SLC') - Whether Pemakai Menoa and Pulau Galau statutorily recognised within scheme of SLC - Whether term 'Native Territorial Domain' used for inclusiveness - Whether confers native communal title in perpetuity - Whether proprietary interest indefeasible - Whether date of coming into force of amendments given importance - Whether have effect of statutorily overturning majority decision in Director Of Forest, Sarawak & Anor v. TR Sandah Tabau & Ors And Other Appeals - Whether natives' rights confined to area settled - Land Code (Sarawak) (Cap 81), ss. 5, 6A & 132
NATIVE LAW AND CUSTOM: Land dispute - Native customary rights - Whether natives acquired individual or communal native customary right over State land - Codification of customary practices - Whether given force of law by amendment to Land Code (Sarawak) (Cap 81) ('SLC') - Whether Pemakai Menoa and Pulau Galau statutorily recognised within scheme of SLC - Whether term 'Native Territorial Domain' used for inclusiveness - Whether confers native communal title in perpetuity - Whether proprietary interest indefeasible - Whether date of coming into force of amendments given importance - Whether have effect of statutorily overturning majority decision in Director Of Forest, Sarawak & Anor v. TR Sandah Tabau & Ors And Other Appeals - Whether natives' rights confined to area settled - Land Code (Sarawak) (Cap 81), ss. 5, 6A & 132
WORDS & PHRASES: 'subject to this Code' - Land Code (Sarawak) (Cap 81), s. 132(1) - Phrase 'subject to' appearing in three other places in Code - Whether to be given same meaning throughout statute - Whether 'subject to this Code' makes native customary right as qualifying factor to indefeasibility of title
JUDICIAL QUOTES
“What we have here is a scenario where the appellant has requested the Registrar-General to update the register following the undisputed DNA results and the order of the High Court declaring the appellant as the biological father of the child; that with this latest information, the record of the identity of the father of the child as "maklumat tidak diperolehi" can no longer be maintained but must be updated by way of a correction or amendment.”
“In our view, that request is fair and proper as the declaratory order of the court is valid and remains effective. We are of the firm opinion that this new information ought to be reflected in the public record, that is the register, that the true status of the child be corrected to reflect accurate information as regards the biological father, as required by the scheme of Act 299. We cannot see how it may be argued that correcting the register to reflect the declaratory order of the court is not in the interest of the child. On the contrary, it is certainly in the best interest and welfare of the child; consonant with the principles under the Convention on the Rights of the Child, to which Malaysia has acceded and ratified to on 11 February 1995.”- per Mary Lim FCJ in Leow Fook Keong v. Pendaftar Besar Bagi Kelahiran dan Kematian Malaysia, Jabatan Pendaftaran Negara, Malaysia & Anor [2022] 1 CLJ 23
LATEST CASES
Legal Network Series
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[2020] 1 LNS 189
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GUMI ASLI ELEKTRIKAL SDN BHD v. DAZZLING ELECTRICAL (M) SDN BHD & ANOTHER CASE
A party seeking to set aside an adjudication decision on the grounds that it was obtained improperly through fraud bears the legal burden of proving, on a balance of probabilities, two matters cumulatively i.e. that the fraud was committed and that the adjudication decision was obtained through fraud, either directly or indirectly.
CIVIL PROCEDURE: Documentary evidence - Originating summons proceedings - Tendering of letters through written submission - Whether a party is entitled to tender document through written submission - Whether an extension of time to file and serve additional affidavit exhibiting documents ought to have been applied - Whether a party is barred from relying on documents tendered through written submission - Rules of Court 2012, O. 28 r. 3C(1), (3) & (4)
CONSTRUCTION LAW: Adjudication - Setting aside - Improperly procured through fraud - Applicant alleged respondent had misrepresented to applicant that respondent would withdraw adjudication proceedings against applicant - Allegation of concealment of material facts from adjudicator - Whether there was any evidence to support alleged misrepresentation and concealment - Whether applicant had discharged its legal burden to prove on balance of probabilities that adjudication decision had been improperly procured through fraud - Construction Industry Payment and Adjudication Act 2012, s. 15(a)
CONSTRUCTION LAW: Adjudication - Setting aside - Denial of second rule of natural justice - Respondent in adjudication proceeding failed to serve adjudication response to adjudication claim - Adjudicator proceed with adjudication in absence of respondent - Whether claimant in adjudication proceeding has a right to proceed with adjudication in respondent's absence - Whether respondent had been denied right to be heard - Whether absent party could apply to court to set aside adjudication decision - Construction Industry Payment and Adjudication Act 2012, ss. 6(4), 10(3) & 15(b)
(Originating Summons No: BA-24C-61-06/2019)
- For the plaintiff - Jagesh M Lingam; M/s Gregory Yusran & Associates
- For the defendant - James Ding Tse Wen & Ling Jia Wen; M/s CH Tay & Partners
(Originating Summons No: BA-24C-78-07/2019)
- For the plaintiff - James Ding Tse Wen & Ling Jia Wen; M/s CH Tay & Partners
- For the defendant - Jagesh M Lingam; M/s Gregory Yusran & Associates
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[2020] 1 LNS 191
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SAMADO SDN BHD v. KERAJAAN MALAYSIA & ANOTHER CASE
The quantum of costs of the adjudication proceedings to be awarded to the successful claimant in the adjudication includes a claim for consultant costs that fall squarely within the adjudicator's discretion. The adjudicator made no error in allowing part of such a claim, although the evidence tendered was insufficient to fully substantiate the claim. It follows that the sufficiency of the evidence or the weight to be attached to the evidence tendered is a matter within the domain of the adjudicator and cannot be used to set aside the adjudication decision.
CONSTRUCTION LAW: Adjudication - Setting aside - Adjudicator allowed contractor's claim against principal for unlawful deduction of liquidated ascertained damages - Whether adjudicator had breached rules of natural justice and acted beyond jurisdiction when making decisions based on issues that have never been raised by parties - Whether adjudicator had given full opportunity to parties to present their respective case - Whether adjudicator had asked right questions in respect of issues related to certificate of practical completion
CONSTRUCTION LAW: Adjudication - Setting aside - Adjudicator allowed contractor's claim for consultant costs - Adjudicator found documents submitted insufficient to fully substantiate claim for consultant costs nonetheless made a simple mathematical calculation and allowed some of claim - Allegation of absence of detailed justification for allowing costs - Adjudicator merely stated he had taken into account nature and complexity of dispute and value of adjudicated sum before awarding costs - Whether there was any discernible error in decision of adjudicator - Whether sufficiency of evidence is a matter within domain of adjudicator - Whether adjudicator committed breach of rules of natural justice
(Originating Summons No: WA-24C-99-06/2019)
- For the plaintiff - Nur Hamizah Hamzah; Chamber of Nur Hamizah Hamzah
- For the defendant - Nur Irmawatie Daud; Senior Federal Counsel; Attorney General's Chambers
(Originating Summons No: WA-24C-121-07/2019)
- For the plaintiff - Nur Irmawatie Daud; Senior Federal Counsel; Attorney General's Chambers
- For the defendant - Nur Hamizah Hamzah; Chamber of Nur Hamizah Hamzah
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[2020] 1 LNS 196
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KONSESI KOTA PERMATAMAS SDN BHD v. TECH ART SDN BHD & ANOTHER CASE
The Construction Industry Payment and Adjudication Act 2012 ('CIPAA') applies only to construction work contracts made after the CIPAA's effective date. As such, the adjudication decision concerning construction work contracts made prior to the implementation of the CIPAA should be set aside.
CONSTRUCTION LAW: Adjudication - Setting aside - Construction work contract was made before Construction Industry Payment and Adjudication Act 2012 ('CIPAA') came into force - Whether CIPAA applicable to construction contract made before enforcement date of CIPAA - Whether adjudication decision ought to be set aside
(Originating Summons No: BA-24C-55-07/2018)
- For the plaintiff - Sanjay Mohanasundram, Adam Lee Leong Soon & Kooy Wei Nee; M/s Sanjay Mohan
- For the defendant - K Selva Kumaran, Shankar Gunaratnam & Yau Jie Luan; M/s Rose Hussin
(Originating Summons No: BA-24C-64-08/2018)
- For the plaintiff - K Selva Kumaran, Shankar Gunaratnam & Yau Jie Luan; M/s Rose Hussin
- For the defendant - Sanjay Mohanasundram, Adam Lee Leong Soon & Kooy Wei Nee; M/s Sanjay Mohan
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[2021] 1 LNS 421
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NANDINE-ERDENE KHOSKHULUG lwn. HAZRUL HIZHAM GHAZALI & SATU LAGI
Perintah jaminan kos harus diberi kesan yang sewajarnya. Apabila perintah jaminan kos menyatakan bahawa plaintif harus membayar kos yang diperintahkan dalam tempoh masa yang ditetapkan dan kegagalan menepatinya akan menyebabkan tindakan plaintif terbatal, maka sebarang permohonan untuk menggantung perintah jaminan kos yang dibuat selepas tamat tempoh masa pembayaran jaminan kos tersebut akan menjadi akademik dan hendaklah dibatalkan.
PROSEDUR SIVIL: Kos - Jaminan kos - Plaintif merupakan warganegara asing yang bukan dari negara salingan dalam Akta Penguatkuasa Salingan Hukuman 1958 - Plaintif tidak mempunyai sebarang aset di Malaysia - Plaintif tidak berada di Malaysia ketika prosiding - Sama ada beban bukti terletak pada plaintif atau defendan untuk menunjukkan keupayaan plaintif untuk membayar kos - Sama ada defendan akan mengalami kesukaran untuk mengesan plaintif sekiranya defendan berjaya dalam pembelaannya - Sama ada plaintif mempunyai prospek kejayaan kes - Kaedah-Kaedah Mahkamah 2012, A. 23 k. 1(1)
PROSEDUR SIVIL: Penggantungan - Permohonan untuk - Permohonan oleh plaintif untuk menggantung perintah jaminan kos - Tindakan plaintif terbatal setelah gagal membayar jaminan kos dalam tempoh masa yang ditetapkan - Sama ada perintah jaminan kos harus diberi kesan sewajarnya - Sama ada permohonan penggantungan menjadi akademik dan harus dibatalkan
- Bagi pihak plaintif - Nathalie Annette Kee Xuan Li; T/n Thomas Philip
- Bagi pihak defendan pertama - T/n Hafarizam Wan & Nurshafiqa Balqish Jaffri
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[2021] 1 LNS 486
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PP lwn. SANMUGAM SINNATHURAI SATKUNARASA & YANG LAIN
Kesalahan penyeludupan migran secara haram bawah s. 26A Akta Antipemerdagangan Orang dan Antipenyeludupan Migran 2007 merupakan satu kesalahan keselamatan. Kesalahan keselamatan merupakan satu kesalahan serius kepada ketenteraman negara dan justeru kepentingan awam merupakan faktor yang perlu diberi penekanan dalam menjatuhkan hukuman. Penentuan tempoh hukuman pemenjaraan bagi kesalahan penyeludupan migran secara haram bergantung kepada bilangan migran yang terlibat.
PROSEDUR JENAYAH: Hukuman - Mitigasi - Pengakuan bersalah - Kesalahan keselamatan - Kesalahan penyeludupan migran secara haram - Pertuduhan bawah s. 26A Akta Antipemerdagangan Orang dan Antipenyeludupan Migran 2007 - Jumlah migran yang diseludup adalah sangat besar - Sama ada mahkamah mempunyai bidang kuasa untuk menjatuhkan hukuman yang setimpal dengan kesalahan yang dilakukan oleh tertuduh - Sama ada pertuduhan melibatkan kesalahan serius - Sama ada kepentingan awam merupakan faktor yang perlu diberi penekanan - Sama ada pengakuan salah harus diberi pertimbangan - Sama ada faktor penyesalan dan keinsafan tertuduh wajar diambil pertimbangan
- Bagi pihak pemohon - Melissa Abd Kadir, Mahaletchumy Ramakrishnan; M/s M Ramakrishnan & Co
- Bagi pihak responden - Farah Aqila Mohd Fuad, Timbalan Pendakwa Raya; Pejabat Penasihat Undang-Undang Negeri
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CLJ 2022 Volume 2 (Part 6)
The decision of the Minister, in granting a second extension of 17 months to the developer to complete the service apartment units, in this case, was intra vires the Housing Development (Control and Licensing) Regulations 1989 and the Housing Development (Control and Licensing) Act 1966. The fact that the Controller of Housing has no power to make such a decision under reg. 11(3) of the Regulations does not take away the power of the Minister to make the decision under regs. 11(3) or 12 thereof. Indeed, with or without regs. 11(3) or 12, the Minister is empowered under s. 24(2)(e) of the 1966 Act to 'regulate and prohibit the conditions and terms of any contract' between the developer and the purchaser; the expression 'regulate and prohibit' is wide enough to include 'waive and modify' any provisions under reg. 11(3), and hence, the Minister's decision to amend Schedule H to the Regulations was rational, reasonable and not illegal, and certainly not infected by the Wednesbury's irrationality.
Bludream City Development Sdn Bhd v. Kong Thye & Ors And Other Appeals [2022] 2 CLJ 829 [CA]
ADMINISTRATIVE LAW
ADMINISTRATIVE LAW: Judicial review - Judicial review challenging decision of Minister of Urban Wellbeing, Housing and Local Government ('Minister') - Appeal against - Minister granted extension of time of 17 months, from 42 months to 59 months, for developer to complete housing development - Whether purchasers were parties adversely affected - Whether Minister's decision valid in light of Ang Ming Lee & Ors v. Menteri Kesejahteraan Bandar, Perumahan dan Kerajaan Tempatan & Anor And Other Appeals - Whether Minister's decision tainted with procedural impropriety and irrationality - Whether there was breach of natural justice when purchasers were not heard - Whether court ought to interfere with Minister's decision - Whether Minister's decision ought to be set aside - Housing Development (Control and Licensing) Act 1966, s. 24(2) - Housing Development (Control and Licensing) Regulations 1989, regs. 11(3) & 12
HANIPAH FARIKULLAH JCA
LEE SWEE SENG JCA
AHMAD NASFY YASIN JCA
- For the appellant (Bludream City Development) - Lim Chee Wee, Sanjay Mohanasundram, Wong Li-Wei, Mak Kit Teng & Surendra Ananth Anandaraju; M/s Sanjay Mohan
- For the appellant (Menteri Kesejahteraan Bandar, Perumahan dan Kerajaan Tempatan) - Liew Horng Bin; SFC
- For the respondent (Kong Thye & 184 Ors) - Loh Chun Hoo & Siti Syafiqah Sofia Mohd Saufi; M/s VL Decruz & Co
- For the respondent (Chan Chew Mun & 25 Ors) - Godfrey Thomas Fernandez; M/s GT Fernandez & Co
- For the respondent (Alvin Leong Wai Kuan & 14 Ors) - Samreet Singh Gurdip Singh, Yong Wei Sang & Huang Yee Ching; M/s WS Yong & Co
- Watching brief for REHDA - Lam Wai Loon, Harold Tan Kok Leng, Thoo Yee Huan & Chong Lee Hui
The Legal Profession and the Advocates and Solicitors Disciplinary Board are entitled to show revulsion at the inimical conduct of any solicitor who has influenced or interfered with a judicial appointment by striking him off the Roll of Advocates and Solicitors. Such conduct is not only unbefitting of an advocate and solicitor, but would bring the legal profession into disrepute, fan the flames of mistrust among the public and undermine the process and confidence in the Judiciary; anything that smacks of 'influence peddling' is against public policy and injurious to our justice system.
Dato’ Kanagalingam Veluppillai v. Majlis Peguam Malaysia [2022] 2 CLJ 858 [CA]
LEGAL PROFESSION
LEGAL PROFESSION: Roll of Advocates and Solicitors - Struck off - Appeal against decision of Disciplinary Board ('DB') - Misconduct of solicitor - Conduct unbefitting of advocate and solicitor which brought legal profession to disrepute - Interfering with and influencing judicial appointments - Admissibility of video clip of conversation and event in home of solicitor when original recording not available - Whether DB found for misconduct not based on original complaint - Whether CD video recording admissible as direct oral evidence by maker of original - Whether admissible as secondary evidence - Whether CD authentic or tampered with - Whether solicitor rebutted evidence of what transpired and recorded in CD - Whether order of DB defective for non-compliance with s. 103D(1) of Legal Profession Act 1976 - Whether solicitor denied right to be heard - Whether there was biasness - Whether court ought to interfere with punishment meted out by DB - Evidence Act 1950, ss. 60, 63, 65, 90A & 90C - Legal Profession (Practice and Etiquette) Rules 1978, r. 31 - Legal Profession Act 1976, ss. 94(3)(o) & 103
LEGAL PROFESSION: Professional discipline - Misconduct - Conduct unbefitting of advocate and solicitor which brought legal profession to disrepute - Interfering with and influencing judicial appointments - Admissibility of video clip of conversation and event in home of solicitor when original recording not available - Whether Disciplinary Board ('DB') found for misconduct not based on original complaint - Whether CD video recording admissible as direct oral evidence by maker of original - Whether admissible as secondary evidence - Whether CD authentic or tampered with - Whether solicitor rebutted evidence of what transpired and recorded in CD - Whether order of DB defective for non-compliance with s. 103D(1) of Legal Profession Act 1976 - Whether solicitor denied right to be heard - Whether there was biasness - Decision of DB for solicitor to be struck off Roll of Advocates and Solicitors - Whether court ought to interfere with punishment meted out by DB - Evidence Act 1950, ss. 60, 63, 65, 90A & 90C - Legal Profession (Practice and Etiquette) Rules 1978, r. 31 - Legal Profession Act 1976, ss. 94(3)(o) & 103
LEE SWEE SENG JCA
LEE HENG CHEONG JCA
HASHIM HAMZAH JCA
- For the appellant - R Thayalan; M/s V Siva & Partners
- For the respondent - Razlan Hadri, Kwan Will Sen, James Khong, Saritha Devi & Danny Soong Hou Ming; M/s Gan Ho & Razlan Hadri
The Housing Development (Control and Licensing) Act 1966 and the Housing Development (Control and Licensing) Regulations 1989 are social legislations enacted with the purpose of protecting house buyers, and to that end, any purported settlement which diminishes or takes away the statutory rights of house buyers will have no legal effect. A housing developer cannot rely on any waiver or estoppel to preclude a house buyer from asserting the full extent of his rights as provided under the Act 1966 or the Regulations; allowing such waiver or estoppel to be operative against the buyer would defeat the object of those statutes.
Aminnudin Rezal Jaafar & Ors v. Prema Bonanza Sdn Bhd [2022] 2 CLJ 914 [HC]
CIVIL PROCEDURE | LAND LAW
CIVIL PROCEDURE: Summary judgment - Application for - Claim for compensation in respect of liquidated ascertained damages - Late delivery of vacant possession of property and late completion of common facilities - Whether there were triable issues - Rules of Court 2012, O. 14
LAND LAW: Vacant possession - Late delivery - Claim for compensation in respect of liquidated ascertained damages - Whether claimants had knowledge and consented to sale and purchase agreements - Whether claimants employed correct mode of proceedings - Whether claimants estopped by settlement letters - Whether there would be unjust enrichment - Whether action barred by limitation - Whether actual loss or damage needed to be particularised and shown - Whether there was non-joinder of parties
- For the plaintiffs - Jadadish Chandra; M/s Arbain & Co
- For the defendant - Lai Chee Hoe & Chua Heaw Eng; M/s Chee Hoe & Assocs
The applicant, whose vehicle's registration number had been wrongly transferred to the third respondent by the Road Transport Department (JPJ), was right in suing the first and other respondents for declaratory reliefs by way of an originating summons instead of by judicial review. Whilst the order sought (inter alia directing the Pengarah to reverse and return the registration number) may be of the nature of mandamus, the actual relief sought was ownership of the registration number; it was essentially a private action which does not require a public law remedy.
Jarom Angkut Sdn Bhd v. Ketua Pengarah Jabatan Pengangkutan Jalan Malaysia & Ors [2022] 2 CLJ 941 [HC]
CIVIL PROCEDURE
CIVIL PROCEDURE: Originating summons - Application for - Application for declaration and order that registration number of vehicle be reversed and returned to applicant - Ownership of registration number of vehicle claimed against party implicated in fraud - Whether fraud in transfer of registration number of vehicle established - Whether private action - Whether reversal of registration number of vehicle in arena of public law and judicial review proceedings - Whether declarations and orders sought ought to be allowed - Road Transport Act 1987, s. 11(3) & (5)
- For the appellant - Hee Hooi Chun; M/s Ghazi & Lim
- For the 1st respondent - Ashraf Abd Hamid; Jabatan Peguam Negara
- For the 2nd respondent - Norhazira Abu Haiyan & Siti Nabila Tahir; M/s Hafarizam Wan & Aisha Mubarak
The High Court is empowered under s. 45(2) of the Land Acquisition Act 1960 (LAA) read with O. 34 rr. 1(1) and 6(1) of the Rules of Court 2012 (Rules) to strike out a land reference matter in the case management before it if the applicant absented himself from the said proceeding. Nonetheless, upon striking out, the applicant could avail himself of one of two options, namely to either (i) apply to set aside the order and reinstate the reference under O. 34 r. 6(2) of the Rules, or (ii) appeal against the order under s. 49(1) of the LAA read with s. 67(1) of the Courts of Judicature Act 1964.
Prasarana Malaysia Bhd v. Pentadbir Tanah Daerah Kelang [2022] 2 CLJ 951 [HC]
LAND LAW | CIVIL PROCEDURE
LAND LAW: Acquisition of land - Land reference - Power to strike out land reference - Whether High Court hearing land references has discretionary power to hold case management - Whether corporate applicant to be represented by counsel in case management for land reference - Whether High Court empowered to strike out land reference in absence of applicant's counsel in case management - Options available to applicant upon striking out of land reference - Whether applicant opted for expeditious option - Land Acquisition Act 1960, s. 45(2) - Rules of Court 2012, O. 5 r. 6(2) & O. 34 r. 1(1)
CIVIL PROCEDURE: Case management - Land reference - Power of High Court to hold case management - Whether High Court hearing land references has discretionary power to hold case management - Whether corporate applicant to be represented by counsel in case management for land reference - Whether High Court empowered to strike out land reference in absence of applicant's counsel in case management - Options available to applicant upon striking out of land reference - Whether applicant opted for expeditious option - Land Acquisition Act 1960, s. 45(2) - Rules of Court 2012, O. 5 r. 6(2) & O. 34 r. 1(1)
(Land Reference No: BA-15-75-11-2020)
- For the applicant - Not present
- For the respondent - Mohd Abdul Hakim Mohd Ali; SLA, Selangor
(Land Reference No: BA-15-10-03-2020)
- For the applicant - Lum Kok Kiong & Tan Ming Chu; M/s Lum Kok Kiong & Co
- For the respondent - Mohd Abdul Hakim Mohd Ali; SLA, Selangor
The plea of guilty herein accords with the prescribed procedural law notwithstanding that it was administered in the hospital the appellant was being warded in for his heart related ailments, and notwithstanding that it was administered without the attendance of a medical doctor. The plea was good and admissible as the appellant was in full control of his cognitive and mental faculties and was fully aware of the proceedings. The plea being unequivocal and unqualified, the appellant's conviction must prevail and must stand affirmed.
Taufik Goh Abdullah v. PP [2022] 2 CLJ 967 [HC]
CRIMINAL PROCEDURE
CRIMINAL PROCEDURE: Appeal - Appeal against sentence and conviction - Appeal against decision of Magistrate - Accused pleaded guilty to alternative charge - Retaining stolen property which he had reason to believe was stolen property - Penal Code, s. 411 - Magistrate accused appellant upon plea of guilty and sentenced him to six months' imprisonment - Whether in plea of guilty case, appeal may be made against conviction and sentence - Whether there was any miscarriage of justice on facts and circumstances of case - Whether court required to consider provisions of s. 294 of Criminal Procedure Code - Whether plea in mitigation given after accused was sentenced vitiated conviction and sentence
AWG ARMADAJAYA AWG MAHMUD JC
- For the appellant - Mohd Fazaly Ali Mohd Ghazaly & Safiah A Aziz; M/s Safiah Aziz & Co
- For the respondent - Mustaqim Sukarno; DPP
ARTICLES
LNS Article(s)
FINAL ACCOUNT CLOSING IN THE MALAYSIAN PUBLIC CONSTRUCTION PROJECT [Read excerpt]
by Farrah Azwanee Aminuddin[i]Raifah Azene Ramli[ii] [2022] 1 LNS(A) xxiii
[2022] 1 LNS(A) xxiii
MALAYSIA
FINAL ACCOUNT CLOSING IN THE MALAYSIAN PUBLIC CONSTRUCTION PROJECT
by
Farrah Azwanee Aminuddin[i]
Raifah Azene Ramli[ii]
ABSTRACT
Almost all the standard forms of contracts contain provisions that provide mechanisms for the final payment to be made to the contractor's completed works. The provisions spell out the parties' obligations to resolve the final account and issue a final payment certificate to the contractor within the specified contractual period after receiving the contractor's final account statement. The final account's preparation is essential to be completed before the contract ends to avoid the contractor's liquidation. However, there are numerous criticisms regarding the increasing number of the public construction project's final account issues, which were resolved unreasonably late or beyond the contract period. The Malaysian government had expressed concerns about the delays that often occurred in preparing the final account statement for public projects that would inevitably delay the final payment to the contractor. Therefore, the Malaysian government has taken initiatives to demand improvement and standardization in the final account closing process. This paper introduces the overview of the final account process according to the Public Work Department (PWD) 203/203A standard form of contract. This paper discusses the procedural requirement for the final account closing process in the Malaysian public construction project to prevent any delay of the due process.
. . .
DIRECTOR MUST NOT OBTAIN PROFIT OUT OF HIS POSITION* [Read excerpt]
by SM Shanmugam and Siew Hui Yi** [2022] 1 LNS(A) xxiv
[2022] 1 LNS(A) xxiv
MALAYSIA
DIRECTOR MUST NOT OBTAIN PROFIT OUT OF HIS POSITION*
by
SM Shanmugam and Siew Hui Yi**
A director is the alter ego of the company. He is allowed access to highly sensitive information on the company's business that is generally not available to or accessible by the public. He is also given opportunity to make decisions for the company. In doing so, instances may arise when a director sees an opportunity to make a profit or benefit for himself.
Section 218(1) of the Companies Act 2016 stipulates "a director or officer of a company shall not, without the consent or ratification of a general meeting ... use any information acquired by virtue of his position as a director or officer of the company... use his position as such director or officer ... to gain directly or indirectly, a benefit for himself or any other person, or cause detriment to the company". Under common law, this is known as the "no-profit rule". This principle stems from Regal,[1] where Lord Russell explained the rule:
. . .
LEGISLATION HIGHLIGHTS
Principal Acts
| Number |
Title |
In force from |
Repealed |
Superseded |
| ACT 834 |
Malaysian Space Board Act 2022 |
Not Yet In Force |
- |
- |
| ACT 833 |
Finance Act 2021 |
The Income Tax Act 1967 [Act 53] see s 3; the Real Property Gains Tax Act 1976 [Act 169] see s 29; the Stamp Act 1949 [Act 378] see s 36; the Petroleum (Income Tax) Act 1967 [Act 543] see s 45; the Labuan Business Activity Tax Act 1990 [Act 445] see s 52; the Promotion of Investments Act 1986 [Act 327] see s 59; the Finance Act 2012 [Act 742] see s 64 and the Finance Act 2018 [Act 812] see s 66 |
- |
- |
| 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) |
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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 |
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- |
| 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 |
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Amending Acts
| Number |
Title |
In force from |
Principal/Amending Act No |
| ACT A1647 |
Malaysia Deposit Insurance Corporation (Amendment) Act 2022 |
22 February 2022 [PU(B) 120/2022] except sections 12, 13, 14, 15, 16, 17, 22, 23, 24, 25, 26 and 27 |
ACT 720 |
| ACT A1646 |
Wildlife Conservation (Amendment) Act 2022 |
Not Yet In Force |
ACT 716 |
| ACT A1645 |
Copyright (Amendment) Act 2022 |
Not Yet In Force |
ACT 332 |
| ACT A1644 |
Anti-Trafficking In Persons and Anti-Smuggling of Migrants (Amendment) Act 2022 |
22 February 2022 [PU(B) 116/2022] |
ACT 670 |
| ACT A1643 |
Small Estates (Distribution) (Amendment) Act 2022 |
Not Yet In Force |
ACT 98 |
PU(A)
PU(B)
Legislation Alert
Updated
| Act/Principal No. |
Title |
Amended by |
In force from |
Section amended |
| AKTA 50 |
Akta Perubatan 1971 |
PU(A) 47/2022 |
5 Mac 2022 |
Jadual Kedua |
| ACT 50 |
Medical Act 1971 |
PU(A) 47/2022 |
5 March 2022 |
Second Schedule |
| PU(A) 551/1996 |
Perintah Jalan Persekutuan (Sarawak) 1996 |
PU(A) 6/2022 |
10 Januari 2022 |
Jadual Pertama dan Jadual Ketiga |
| PU(A) 551/1996 |
Federal Roads (Sarawak) Order 1996 |
PU(A) 6/2022 |
10 January 2022 |
First Schedule and Third Schedule |
| PU(A) 383/2021 |
Perintah Menteri-Menteri Kerajaan Persekutuan (No. 3) 2021 |
PU(A) 5/2022 |
13 September 2021 - Subperenggan 2(a); 11 September 2021 - Subsubperenggan 2(b)(i), (ii), (iii) dan (iv); 1 Januari 2022 - Subperenggan 2(c) dan (d) |
Jadual |
Revoked
| Act/Principal No. |
Title |
Revoked by |
In force from |
| PU(A) 127/2017 |
Malaysia Deposit Insurance Corporation (Order of Priority For Payments of Different Categories of Islamic Deposits, Determination and Classification of Assets and Application of Disposal Proceeds of Assets in the Winding Up of Deposit-Taking Member) Regulations 2017 |
PU(A) 41/2022 |
1 March 2022 |
| PU(A) 182/2018 |
Perintah Pendaftaran Ahli Farmasi (Pindaan Jadual Pertama) 2018 |
PU(A) 486/2021 |
31 Disember 2021 |
| PU(A) 182/2018 |
Registration of Pharmacists (Amendment of First Schedule) Order 2018 |
PU(A) 486/2021 |
31 December 2021 |
| PU(A) 100/2013 |
Labuan Business Activity Tax (Exemption) (No. 2) Order 2013 |
PU(A) 483/2021 |
Year of assessment 2020 |
| PU(A) 14/1977 |
Dental Regulations 1976 |
PU(A) 443/2021 |
1 January 2022 |
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