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Issue #11/2022
17 March 2022

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New This Week

CASE(S) OF THE WEEK

LEI MENG v. INSPEKTOR WAYANDIANA ABDULLAH & ORS AND OTHER APPEALS [2022] 3 CLJ 177
FEDERAL COURT, PUTRAJAYA
TENGKU MAIMUN TUAN MAT CJ; MOHD ZAWAWI SALLEH FCJ; NALLINI PATHMANATHAN FCJ
[CRIMINAL APPEAL NOS: 05(HC)-38-03-2021(W), 05(HC)-41-03-2021(W), 05(HC)-43-03-2021(W), 05(HC)-42-03-2021(W), 05(HC)-44-03-2021(W), 05(HC)-45-03-2021(W), 05(HC)-106-06-2021(W), 05(HC)-107-06-2021(W), 05(HC)-108-06-2021(W), 05(HC)-109-06-2021(W), 05(HC)-110-06-2021(W), 05(HC)-111-06-2021(W), 05(HC)-112-06-2021(W), 05(HC)-113-06-2021(W), 05(HC)-114-06-2021(W), 05(HC)-115-06-2021(W), 05(HC)-116-06-2021(W), 05(HC)-117-06-2021(W), 05(HC)-118-06-2021(W), 05(HC)-119-06-2021(W), 05(HC)-120-06-2021(W), 05(HC)-121-06-2021(W), 05(HC)-122-06-2021(W), 05(HC)-123-06-2021(W) & 05(HC)-124-06-2021(W)]
14 FEBRUARY 2022

The detention of foreign nationals under the Prevention of Crime Act 1959 (POCA) in relation to 'the organization and implementation of online gambling' herein was fundamentally flawed and illegal. Although POCA and its entire scheme applies to both citizens and non-citizens, online gambling simpliciter, for lacking the factual basis of organised crime as envisaged in art. 149(1)(a) of the FC, does not fall within the purview of POCA. This said, habeas corpus applications should always be looked at from the date of the filing of the applications; and the fact that a detenu, subsequent to his application for release, has again been preventively detained by some other authority, or under some other provision, legislation or order, does not vitiate his right to judicial scrutiny over the legality of his initial detention.

CRIMINAL PROCEDURE: Habeas corpus - Appeal against - Legality of detention - Detenus nationals of People's Republic of China - Detention in relation to 'the organization and implementation of online gambling' under Prevention of Crime Act 1959 - Detentions have since expired although detenus detained during disposal of appeals before High Court - Whether appeals before Federal Court academic - Whether applications for habeas corpus could only be directed at presently subsisting order of detention - Whether detenus' right to judicial scrutiny over legality of detention vitiated - Whether there was live issue for Federal Court's determination - Whether High Court ought to have ordered habeas corpus

CRIMINAL PROCEDURE: Preventive detention - Detention under Prevention of Crime Act 1959 ('POCA') - Detenus detained in relation to 'the organization and implementation of online gambling' - Whether online gambling simpliciter fell within scope of POCA

CRIMINAL PROCEDURE: Preventive detention - Detention under Prevention of Crime Act 1959 ('POCA') - Detenus, nationals of People's Republic of China, detained in relation to 'the organization and implementation of online gambling' - Whether POCA applied to non-nationals or foreign nationals - Whether POCA restricted to only Malaysian citizens - Federal Constitution, arts. 8(1), 149 & 151(1)(a)

APPEAL UPDATES

  1. Khazanah Jaya Sdn Bhd v. Hisco Malaysia Sdn Bhd [2021] 1 LNS 2196 affirming the High Court case of Hisco (Malaysia) Sdn Bhd v. Khazanah Jaya Sdn Bhd [Civil Suit No. WA-22NCC-212-06/2018

  2. Premitha Damodaran v. Gurisha Taranjeet Kaur & Anor [2021] 1 LNS 2225 overruling in part the High Court case of Gurisha Taranjeet Kaur & Anor v. Dr Premitha Damodaran & Anor [2020] 6 CLJ 446

LATEST CASES

Legal Network Series

[2021] 1 LNS 539

LIM KEAN BOON lwn. TIMBALAN MENTERI DALAM NEGERI, MALAYSIA & SATU LAGI

1. Aktiviti oleh seseorang individu tidak boleh dianggap sebagai termasuk dalam ruang lingkup dan skop pemakaian Akta Dadah Berbahaya (Langkah-Langkah Pencegahan Khas) 1985 ('Akta 316'). Justeru, suatu perintah tahanan yang dibuat berasaskan alasan-alasan dan juga pengataan-pengataan fakta yang hanya menunjukkan bahawa orang yang ditahan telah bertindak secara bersendirian adalah bertentangan dengan perkara 149 Perlembagaan Persekutuan dan mukadimah Akta 316.

2. Adalah menjadi kelaziman bagi orang yang ditahan atau peguambela orang yang ditahan untuk memohon salinan rakaman percakapan orang yang ditahan. Apabila orang yang ditahan tidak memohon untuk dibekalkan dengan salinan rakaman percakapan tersebut, maka dakwaan bahawa rakaman percakapan pemohon perlu dijadikan sebagai ekshibit bagi membuktikan siasatan yang dijalankan oleh pegawai penyiasat adalah sempurna akan menjadi tidak bermerit.

PENAHANAN PENCEGAHAN: Perintah tahanan - Habeas corpus - Tahanan bawah s. 6(1) Akta Dadah Berbahaya (Langkah-Langkah Pencegahan Khas) 1985 ('Akta 316') - Alasan-alasan dan pengataan-pengataan fakta hanya menunjukkan bahawa pemohon telah bertindak secara bersendirian - Sama ada perintah tahanan bertentangan dengan perkara 149 Perlembagaan Persekutuan dan mukadimah Akta 316 - Sama ada Akta 316 akan terpakai sekiranya tindakan pengedaran dadah berbahaya didakwa dilakukan oleh seorang individu yang bertindak secara bersendirian

PENAHANAN PENCEGAHAN: Perintah tahanan - Habeas corpus - Ketidakpatuhan prosedur - Dakwaan bahawa pegawai penyiasat tidak menjalankan siasatan dan tidak menyediakan laporan penyiasatan - Sama ada isu mengenai proses siasatan oleh pegawai penyiasat boleh dijadikan asas untuk mencabar perintah tahanan - Sama ada ketiadaan rakaman percakapan pemohon sebagai ekshibit terjumlah kepada suatu ketidakpatuhan prosedur - Sama ada pemohon boleh membangkitkan isu tidak dibekalkan rakaman percakapannya apabila pemohon tidak pernah memohon untuk dibekalkan rakaman percakapan tersebut - Sama ada rakaman percakapan pemohon perlu dijadikan sebagai ekshibit bagi membuktikan siasatan yang dijalankan oleh pegawai penyiasat adalah sempurna

  • Bagi pihak perayu - Ooi Keng Liang; T/n Shariffah, Ooi & Co
  • Bagi pihak responden-responden - Badrul Syah Shafiq Basir; Peguam Persekutuan, Pejabat Penasihat Undang-Undang Kementerian Dalam Negeri

[2021] 1 LNS 580

LZY INTERNATIONAL (M) SDN BHD lwn. WELTEX REFRIGERATION & EQUIPMENT SDN BHD

Dalam permohonan untuk mengetepikan penghakiman ingkar yang telah diperoleh secara teratur, defendan perlu menunjukkan pembelaan yang bermerit dan berasas terhadap tuntutan plaintif dengan mengemukakan keterangan dokumen untuk menyokong pembelaannya.

PROSEDUR SIVIL: Penghakiman dan perintah - Penghakiman ingkar - Permohonan pengetepian - Penghakiman ingkar diperoleh secara teratur - Plaintif menuntut untuk baki bagi kerja-kerja yang telah disiapkan dan pembekalan barang-barang kepada defendan - Sama ada defendan mempunyai pembelaan yang bermerit - Sama ada pembelaan defendan yang tidak disokong dengan sebarang keterangan dokumen adalah berasas - Sama ada pembelaan yang dikemukakan oleh defendan adalah suatu pemikiran terkemudian - Sama ada penghakiman ingkar wajar diketepikan

  • Bagi pihak perayu - T/n Sia Siew Mun & Co
  • Bagi pihak responden - T/n Devan & Associates

[2020] 1 LNS 201

KOH CHIN TUAN v. PP

1. An offence relating to the control of psychotropic items and control on registered drugs and cosmetics comes within the purview of public welfare and the offence is one of strict liability, requiring no consideration of the element of mens rea.

2. When there is more than one charge, the trial judge must specifically state which charge the accused is being called to answer when deciding to call the accused to enter a defence. Failure of the trial judge to specify the charge that needed to be answered by the accused will cause uncertainty in the trial's judge decision. Such uncertainty is prejudicial to the accused and the benefit should be granted to the accused.

CRIMINAL LAW: Poisons Act 1952 - Section 30(5) - Psychotropic items recovered in premise - Premise owned by accused but accessible to others - Whether accused had possession, custody and control of psychotropic items - Whether prima facie case has been established - Whether there was break in chain of evidence as to identity of exhibits tendered during trial

CRIMINAL PROCEDURE: Prosecution - Prosecution's case - Written statement of facts favourable to accused's defence was not delivered to accused before commencement of trial - Whether fatal to prosecution's case - Whether statement was relevant to charge - Whether there was non-compliance of s. 173(f) of Criminal Procedure Code

CRIMINAL PROCEDURE: Appeal - Appeal against conviction and sentence - Offence relating to control of psychotropic items and control on registered drugs and cosmetics - Trial judge classified offence as strict liability and failed to consider element of mens rea - Trial judge failed to record reasons for calling defence - Whether psychotropic items and control on registered drugs and cosmetics would come within purview of public welfare - Whether offence is one of strict liability - Whether it was mandatory for trial judge to give reasons for his decision that prosecution has proven prima facie case

CRIMINAL PROCEDURE: Appeal - Appeal against conviction and sentence - Accused was charge for three offences - Trial judge had merely ordered accused to answer a charge - Whether trial judge must specifically refer to which charge he had decided to call for accused to enter defence - Whether there was uncertainty that was prejudicial to accused - Whether benefit of uncertainty should be given to accused

  • For the appellant - M/s Jagjit Singh & Co
  • For the respondent – Deputy Public Prosecutor, State Legal Advisor’s Chamber, Johor

[2020] 1 LNS 311

LIM WEN LONG v. KETUA POLIS NEGARA & ORS

A restriction order issued by the Minister of Home Affairs pursuant to s. 6(3) of the Dangerous Drugs (Special Preventive Measures) Act 1985 ('DDSPMA') is valid once the Minister is satisfied with the requirements set out in s. 6(1) and (3) of DDSPMA. The Minister's satisfaction of the requirements under s. 6(1) and (3) of DDSPMA falls within his discretionary power and thus, the review of the Minister's discretionary power is barred by s. 11C(1) of DDSPMA.

ADMINISTRATIVE LAW: Judicial review - Certiorari - Application to quash restriction order - Restriction order issued by Deputy Minister of Home Affairs pursuant to s. 6(3) Dangerous Drugs (Special Preventive Measures) Act 1985 ('DDSPMA') - Whether all mandatory procedural requirements as provided in DDSPMA had been complied with - Whether Minister's satisfaction of requirements under s. 6(1) and (3) of DDSPMA was procedural requirement - Whether Court could review exercise of Minister's discretionary power under s. 6(1) and (3) DDSPMA - Whether Court could review restriction order merely on grounds that Minister had not applied his mind and acted mechanically in issuing restriction order

CIVIL PROCEDURE: Parties - Misjoinder - Judicial review proceedings - Application to quash restriction order issued by Deputy Minister of Home Affairs - Ministry of Home Affairs cited as respondent - Whether Ministry of Home Affairs correctly cited as a party - Whether Ministry of Home Affairs is a legal entity subject to any legal proceedings and court judgments and orders - Whether misjoinder had affected judicial review application - Rules of Court 2012, O. 15 r. 6(1)

  • For the applicant - Syazwani Mohd Zawawi & Nur Fatin Najwa Ahmad Zainol; M/s Scivetti & Associates
  • For the respondents - Norazlin Mohamad Yusoff; Federal Counsel, Attorney General's Chambers

[2020] 1 LNS 312

MADIN AL-SYARIF TRAVEL SDN BHD & ANOR v. TRIBUNAL TUNTUTAN PENGGUNA MALAYSIA

A judicial review application filed by the director of a company to quash the Tribunal's award and decision for consumer claims made against the company should be dismissed for lack of locus standi as the director is a separate legal entity from the company and he is not a party adversely affected in any manner by the Tribunal's award and decision as required under O. 53 r. 2(4) of the Rules of Court 2012 or a party with real and genuine interest against the said award and decision by the Tribunal.

ADMINISTRATIVE LAW: Remedies - Certiorari - Application for judicial review to quash decision of Tribunal for consumer claims ordering applicant to refund monies paid by consumers for umrah packages - Hearing conducted by Tribunal in absence of applicant - Hearing proceeded without defence of applicant - Whether Tribunal has jurisdiction under s. 98(1) Consumer Protection Act 1999 to hear claim - Whether applicant failed to file defence despite service of notice of claim and hearing - Whether Tribunal could proceed to hear claims notwithstanding applicant's absence - Whether there was breach of rules of natural justice - Whether applicant had acted on its own peril - Whether Tribunal had committed any error of law

CIVIL PROCEDURE: Locus standi - Judicial review - Application for judicial review to quash decision of Tribunal for consumer claims ordering company to refund monies paid by consumer - Judicial review application filed by company and its director - Whether director was separate legal entity from company - Whether director has threshold locus standi to file application for judicial review - Whether director adversely affected in any manner by award and decision of Tribunal as required under O. 53 r. 2(4) of Rules of Court 2012 - Whether director has any real and genuine interest in awards and decision of Tribunal - Whether directors' resolution could override threshold locus standi requirement to file judicial review application

CONSUMER LAW: Consumer - Scope of - Claim brought by parties who had paid monies under umrah packages - Whether umrah packages paid fall within definition of services in s. 3(1) Consumer Protection Act 1999

  • For the applicants - Siti Fairuz Sonkefeli; M/s Siti Fairuz Sonkefeli & Co
  • For the 1st and 6th to 12th respondents - were not present and were not represented by counsel
  • For the 2nd to 5th & 13th to 15th respondents - Ahmad Fakhri Abu Samah & Mohd Afiq Farhan Aziz; M/s Fakhri & Co

CLJ 2022 Volume 3 (Part 1)

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.
Busing Jali & Ors v. Kerajaan Negeri Sarawak & Anor And Other Appeals [2022] 3 CLJ 1 [FC]

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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

ABANG ISKANDAR CJ (SABAH AND SARAWAK)
VERNON ONG LAM KIAT FCJ
ZABARIAH MOHD YUSOF FCJ
HASNAH MOHAMMED HASHIM FCJ
HARMINDAR SINGH DHALIWAL FCJ

(Case No: 01(f)-31-10-2019 (Q))
  • For the appellants - Mekanda Singh Sandhu, M Izayyeem Azim & Paul Raja; M/s Sagau, Raja & Co
  • For the respondents - Mohd Adzrul Adzlan & Anisa Fadhillah Mohamed Jamel; Sarawak State Attorney General's Chambers
(Case No: 02(f)-77-10-2019 (Q))
  • For the appellants - Mekanda Singh Sandhu, M Izayyeem Azim & Paul Raja; M/s Sagau, Raja & Co
  • For the respondents - Danny Huang Dung Po; M/s Huang & Co Advocs
(Case No: 01(f)-32-10-2019 (Q))
  • For the appellants - Dominique Ng Kim Ho & Berrylin Ng Phuay Lee; M/s Dominique Ng & Assocs
  • For the respondents - Mohd Adzrul Adzlan & Ronald Felix Hardin; Sarawak State Attorney General's Chambers
(Case No: 01(i)-33-10-2019 (Q))
  • For the appellants - Simon Siah, Clarice Chan & Joshua Baru; M/s Simon Siah Chua and Chow Advocs
  • For the respondents - Mohd Adzrul Adzian & Ronald Felix Hardin; Sarawak State Attorney General's Chambers
(Case No: 02(i)-79-10-2019 (Q))
  • For the appellants - Simon Siah, Clarice Chan & Joshua Baru; M/s Simon Siah, Chua and Chow Advocs
  • For the respondents - Gabriel CH Kok & Amanda Yong; M/s Khoo & Co Advocs
(Case No: 02(f)-76-10-2019 (Q))
  • For the appellants - Dominique Ng Kim Ho & Berrylin Ng Phuay Lee; M/s Dominique Ng & Assocs
  • For the respondents - Tony Lim Lee Tom & Nathan Ting; M/s Satem, Chai & Dominic Lai Advocs

(i) Subordinate courts have the jurisdiction to determine any question affecting the provisions of the Federal Constitution, except where the matter comes under art. 4; and (ii) if certain provisions of law construed in one way would make them consistent with the Federal Constitution and another interpretation would render them unconstitutional, the court would lean in favour of the former construction.
Chan Kok Poh v. PP & Other Appeals [2022] 3 CLJ 61 [HC]

CONSTITUTIONAL LAW: Courts - Sessions Court - Accused applied to Sessions Court to refer constitutional questions to High Court pursuant to s. 30 of Courts of Judicature Act 1964 - Application denied by Sessions Court - Whether Sessions Court may refuse to refer questions concerning constitutional issues to High Court - Whether High Court may decide on any matter of constitutional concern - Whether mandatory to refer questions of constitutional matters to Federal Court - Whether questions concerned constitutional matters

 

 

AWG ARMADAJAYA AWG MAHMUD JC

  • For the appellant - Azlan Abdul Razak & Tuw Min Ric; M/s Ong, Ric & Partners
  • For the respondent - Mustaqim Sukarno & Raudhah Mazman; DPPs

A writ of possession is not a form of judgment or order and thus does not come within the purview of O. 45 of the Rules of Court 2012. A committal action cannot therefore be premised on a failure to comply with a writ of possession. Any move to cite the alleged contemnors for contempt, premised on non-compliance of a writ of possession, and not a judgment or an order, is deemed incompetent as a committal action should be initiated on the basis of non-compliance with an original judgment.
Harta Bitara Development Sdn Bhd v. Khairuddin Hj Mustapa (President Pertubuhan Seni Silat Lincah Malaysia) [2022] 3 CLJ 106 [HC]

CIVIL PROCEDURE: Contempt of court - Order of committal - Application for - Rules of Court 2012, O. 52 r. 4 - Failure of contemnors to comply with writ of possession - Writ of possession served by Bailiff of court together with court notice ordering contemnors to deliver vacant possession to applicant - Whether there was personal service of writ of possession on alleged contemnors - Whether failure to adhere to writ of possession a basis to initiate contempt proceedings within contemplation of O. 45 of Rules of Court 2012 - Whether writ of possession qualified to be judgments and orders - Whether there was particularisation in O. 52 statement as to in what manner failure to obey writ of possession amounted to interference with due administration of justice - Whether contempt application flawed and basis of contempt charge unsound in law

 

 

MOHD NAZLAN GHAZALI J

  • For the plaintiff - Danny Yap Sin Leng; M/s KS Lim & Ong
  • For the defendant - Hasnal Rezua Merican & Muzzammil Merican; M/s The Chambers of Kamarul Hisham & Hasnal Rezua

By failing to pay the balance purchase price of a land within the stipulated time, and by unilaterally applying to convert the land to suit its own commercial purposes, the purchaser had contravened the terms of the sale and purchase agreement and should therefore not be granted the equitable remedy of specific performance. As the purchaser had neglected to fulfil its obligations, the vendor's termination of the agreement was deemed valid and lawful.
Summit Streams Sdn Bhd (In Winding-up) v. Yayasan Selangor; SAP Ulu Yam Sdn Bhd (In Liquidation) (Intervener) [2022] 3 CLJ 126 [HC]

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CONTRACT: Specific performance - Sale and purchase agreement - Whether purchaser guilty of misconduct in equity - Failure to pay balance purchase price - Whether prolonged delay in transaction caused by purchaser - Whether purchaser acted in breach of sale and purchase agreement - Whether there were special circumstances - Whether purchaser ought to be granted equitable remedy of specific performance - Whether specific performance impossible or unsustainable - Whether purchaser entitled to damages in lieu of specific performance - Whether purchaser could claim for refund of deposit

CONTRACT: Agreement - Sale and purchase agreement - Termination - Purchaser contracted to buy subject land on 'as is where is' basis - Whether purchaser could demand for improvement of terms not stipulated in agreement - Whether purchaser acted in breach of sale and purchase transaction - Essence of contract - Whether time for completion of sale and purchase transaction set at large - Purchaser's refusal/failure to pay balance purchase price - Whether vendor entitled to terminate agreement - Whether termination of agreement valid and lawful

COMPANY LAW: Winding up - Suit by company - Requirement of sanction - Principles underlying requirement for sanction - Absence of valid sanction by Malaysian Department of Insolvency to commence and maintain suit - Whether wound up company had locus standi to commence suit

LIMITATION: Action - Cause of action - Accrual of - When time began to run - Whether suit filed within six years - Whether cause of action barred by Limitation Act 1953

TEE GEOK HOCK JC

  • For the plaintiff - Liang Chong Beng & Shalini; M/s Nga Hock Cheh & Co
  • For the defendant - Fahda Nur Ahmad Kamar, Ariffin Haron & Amanina Yusrina Ahmad Kamal; M/s Fahda Nur & Yusmadi
  • For the intervener - Kuek Ing Huey; M/s TS Chin

The applicant's application for leave for judicial review challenging the decision of the Jabatan Kehakiman Syariah Malaysia in refusing to direct a judge to take conduct of the continued trial of a nusyuz summons did not go against art. 121(1A) of the Federal Constitution as it was not a challenge against a decision made on the question of Islamic law. It was in fact an administrative decision and there was an element of public law in the decision. Taking into account that an aggrieved person has a right to seek the court's supervisory powers over decision-makers and ought not to be shut out summarily, this applicant's leave application concerning claims that his constitutional rights to a fair trial had been infringed was not at all frivolous or vexatious.
Tan Sri Dato’ Dr Rozali Ismail v. Ketua Pengarah/Ketua Hakim Syarie, Jabatan Kehakiman Syariah Malaysia & Anor [2022] 3 CLJ 169 [HC]

ADMINISTRATIVE LAW: Judicial review - Leave - Application for - Application to quash Jabatan Kehakiman Syariah Malaysia's decision in refusing to direct judge to take conduct of continued trial of nusyuz summons - Whether decision made on question of Islamic law - Whether application went against art. 121(1A) of Federal Constitution - Whether decision administrative decision based on s. 128 of Syariah Court Civil Procedure (Federal Territories) Act 1998 - Whether there was element of public law - Whether there was infringement of applicant's constitutional right to fair trial - Whether issues to be determined at leave stage - Whether application frivolous

 

 

WAN AHMAD FARID WAN SALLEH J

  • For the applicant - Gopal Sri Ram, Abdul Razak Muhidin, Fadzilah Pilus, Lim Choon Khim, Chin Yan Leng, David Yii Hee Kiet & Yasmeen Soh; M/s CK Lim Law Chambers
  • For the respondent - Ahmad Hanir Hambaly & Mohammad Sallehuddin Md Ali; DPPs

ARTICLES

LNS Article(s)

  1. REMOVAL OF COUNSEL FOR MISCONDUCT IN ARBITRATION PROCEEDINGS INCLUDING CRIMINAL COMPLAINT TO LAW ENFORCEMENT AGENCIES: CRITICAL VIEWS [Read excerpt]
    by Prof. Datuk Dr. Hj. Hamid Sultan bin Abu Backer* [2022] 1 LNS(A) xxv

    2. [2022] 1 LNS(A) xxv
    logo
    MALAYSIA

    REMOVAL OF COUNSEL FOR MISCONDUCT IN ARBITRATION PROCEEDINGS INCLUDING CRIMINAL COMPLAINT TO LAW ENFORCEMENT AGENCIES: CRITICAL VIEWS

    by
    Prof. Datuk Dr. Hj. Hamid Sultan bin Abu Backer*

    Abstract

    This article will profess critical views and jurisprudential justifications to say that in limited circumstances, counsel in arbitration proceedings can be removed for misconduct by the arbitrator (Arbitral Tribunal) or pursuant to the application of one of the parties to the arbitration proceedings by way of interim award.[1]

    The above proposition, on removal by arbitrator is not one without difficulties as many leading jurists have placed their views for and against in articles and books largely relying on party autonomy concept to say no and the other on the inherent powers of the arbitrator to say yes and many concluding with mixed views.[2]

    . . .

    * FCIArb; Retired Judge, Court of Appeal Malaysia; Prof. for Arbitration and Dispute Resolution of MAHSA University.

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  2. GETTING OUT OF A CONTRACT* [Read excerpt]
    by SM Shanmugam and Shona Anne Thomas** [2022] 1 LNS(A) xxvi

    3. [2022] 1 LNS(A) xxvi
    logo
    MALAYSIA

    GETTING OUT OF A CONTRACT*

    by
    SM Shanmugam and Shona Anne Thomas**

    "Optimism doesn't wait on facts. It deals with prospects". - Norman Cousins

    In the world of commerce, optimism of business success drives individuals and companies to make deals and enter various contracts. Sometimes, however, it may be necessary to reassess the wisdom of continuing with a business partner. A good example is where a business partner continuously defaults on performing its services or in delivering goods as per specification or on making timely payments. Though some roadblocks and setbacks can be overcome by way of negotiations, supplementary agreements and second chances, certain scenarios may be too difficult to resolve.

    . . .

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

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

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  3. EUTHANASIA: THE PERSPECTIVE OF NATURAL LAW, LEGAL POSITIVISM AND ISLAMIC ETHICS [Read excerpt]
    by Chua Chee Ching[i] Ee Gen You[ii] Nabeel Mahdi Althabhawi[iii] [2022] 1 LNS(A) xxvii

    4. [2022] 1 LNS(A) xxvii
    logo
    MALAYSIA

    EUTHANASIA: THE PERSPECTIVE OF NATURAL LAW, LEGAL POSITIVISM AND ISLAMIC ETHICS

    by
    Chua Chee Ching[i]
    Ee Gen You[ii]
    Nabeel Mahdi Althabhawi[iii]

    ABSTRACT

    In the era of modernization, many Western countries such as Switzerland, the Netherlands, and Belgium have taken positive steps to legalize the practice of euthanasia. However, euthanasia remains a controversial topic in Malaysia, particularly its legality. Following the underlying principle of natural law, human life is sacred and demands respect. Contrary to this, legal positivism believes euthanasia should be allowed because of the lack of 'quality of life'. This article aims to analyze whether euthanasia should be allowed in Malaysia from the natural law and legal positivism perspective. This article will further emphasize the Islamic perspective in analyzing whether Malaysia should legalize the practice of euthanasia as article 3(1) of the Federal Constitution had proclaimed Islam as the official religion. In the absence of indicative legal provisions and judicial precedents governing certain matters, the Malaysian courts have relied on relevant legal principles inherent in English cases. This article will use qualitative research to examine the position of euthanasia in Malaysia by referring to several articles and case laws from various jurisdictions. From the standpoint of natural law and Islamic society, the sanctity of life is the primary reason to oppose the practice of euthanasia. In comparison, euthanasia is permissible under legal positivism because the practice benefits the Malaysian government.

    . . .

    [i] [ii] Third Year Law students, Faculty of Law, National University of Malaysia (UKM).

    [iii] Senior Lecturer, Faculty of Law, National University of Malaysia (UKM).

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LEGISLATION HIGHLIGHTS

Principal Acts

Number Title In force from Repealed Superseded
ACT 835 Factories and Machinery (Repeal) Act 2022 Not Yet In Force - -
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) - 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 - -

Amending Acts

Number Title In force from Principal/Amending Act No
ACT A1648 Occupational Safety and Health (Amendment) Act 2022 Not Yet In Force ACT 514
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

PU(A)

Number Title Date of Publication In force from Principal/ Amending Act No
PU(A) 50/2022 Speed Limit (Jalan Cheras (East) Ramp) Order 2022 8 March 2022 10 March 2022 ACT 333
PU(A) 49/2022 Income Tax (Deduction For The Sponsorship of Scholarship To Malaysian Student Pursuing Studies At Technical and Vocational Certificate, Diploma, Bachelor's Degree, Master's Degree Or Doctor of Philosophy Levels) Rules 2022 7 March 2022 Year of assessment 2022 ACT 53
PU(A) 48/2022 Income Tax (Global Trading Centre Incentive Scheme) Rules 2022 4 March 2022 Year of assessment 2021 ACT 53
PU(A) 47/2022 Medical (Amendment of Second Schedule) (No. 2) Order 2022 4 March 2022 5 March 2022 ACT 50
PU(A) 46/2022 Medical (Amendment of Second Schedule) (No. 2) Order 1996 - Corrigendum 4 March 2022   PU(A) 354/1996

PU(B)

Number Title Date of Publication In force from Principal/ Amending Act No
PU(B) 159/2022 Notice Regarding The Certification and Inspection of The Supplementary Electoral Roll For The Month of February 2022 - Negeri Sembilan 16 March 2022 17 March 2022 PU(A) 293/2002
PU(B) 158/2022 Notice Regarding The Certification and Inspection of The Supplementary Electoral Roll For The Month of February 2022 - Federal Territory of Putrajaya 16 March 2022 17 March 2022 PU(A) 293/2002
PU(B) 157/2022 Notice Regarding The Certification and Inspection of The Supplementary Electoral Roll For The Month of February 2022 - Federal Territory of Kuala Lumpur 16 March 2022 17 March 2022 PU(A) 293/2002
PU(B) 156/2022 Notice Regarding The Certification and Inspection of The Supplementary Electoral Roll For The Month of February 2022 - Selangor 16 March 2022 17 March 2022 PU(A) 293/2002
PU(B) 155/2022 Notice Regarding The Certification and Inspection of The Supplementary Electoral Roll For The Month of February 2022 - Pahang 16 March 2022 17 March 2022 PU(A) 293/2002

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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