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Issue #14/2022
07 April 2022

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New This Week

CASE(S) OF THE WEEK

SATISH MOHANADRAN v. PP [2022] 3 CLJ 844
COURT OF APPEAL, PUTRAJAYA
HAS ZANAH MEHAT JCA; LEE HENG CHEONG JCA; AHMAD NASFY YASIN JCA
[CRIMINAL APPEAL NO: M-05(M)-509-10-2018]
15 FEBRUARY 2022

The prosecution, having availed impeachment proceedings and failed, cannot submit on the falsity of the version offered by a witness that survives impeachment. In the event that a witness's credibility is preserved and found credible, the evidence of the contradictory witness must be evaluated and tested carefully. It gives rise to a doubt on the credibility of the contradictory witness to the extent that that evidence may be rejected in totality on the contradicted particulars.

CRIMINAL PROCEDURE: Appeal - Conviction and sentence - Accused charged with four charges in relation to trafficking and possession of drugs - Accused found guilty, convicted as per charges and sentenced to imprisonment, strokes of rotan and death - Whether prosecution had proven possession in light of two conflicting versions of evidence adduced by prosecution - Whether prosecution excluded presence of another occupier of house where drugs were found - Whether accused alone during raid - Whether trial judge erred in requiring accused to rebut presumption under ss. 37(d) and 37(da)(i) and (ii) of Dangerous Drugs Act 1952 - Whether prima facie case established - Whether accused's defence probable - Whether conviction and sentence safe -Dangerous Drugs Act 1952, ss. 6, 12(2), 39A(1) & 39B(1)(a)

LYSAGHT (MALAYSIA) SDN BHD v. LIEW SWEE MIO [2022] 3 CLJ 903
HIGH COURT MALAYA, KUALA LUMPUR
AHMAD FAIRUZ ZAINOL ABIDIN J
[ORIGINATING SUMMONS NO: WA-24NCC-474-09-2019]
30 AUGUST 2021

The court's consideration in an application by the company for an order to validate resolutions passed at an inquorate board meeting pursuant to s. 582 of the Companies Act 2016, in the main, is whether such an order would not do injustice to the company or to any member or creditor. Lack of quorum is a procedural irregularity that may be validated as expressed by s. 582(3). The court, in the exercise of its discretion to allow the application, is to ensure that the validation order would not result in substantial injustice.

COMPANY LAW: Resolutions - Resolution by company - Inquorate meetings - Application for validation of resolutions - Whether exercise of court's discretion - Factors considered by court - Whether inquorate meeting procedural irregularity - Whether validation order would result in substantial injustice to directors and shareholders of company - Whether existence of 'deadlock right' against company could be overridden by court - Whether validation sought was precise - Whether exercise of discretion in favour of company justified - Companies Act 2016, s. 582

COMPANY LAW: Directors - Resolution - Application for validation of resolutions - Inquorate meetings - Affidavits signed by managing director on behalf of company - Managing director foreign citizen - Whether authorised to affirm affidavits - Whether required employment pass - Whether employee - Whether involved in day-to-day operations of company - Whether 'interested person' pursuant to s. 582(3) of Companies Act 2016 - Whether agent of necessity

JUDICIAL QUOTES

“It is this court's view that the publications complained of as appearing in exh. NHR3 show that they are riddled with speculation, accusation and insinuations of some conspiracy to subvert the administration of justice through manipulation of evidence by witness, wilful incomplete investigation, cover up of persons who are also guilty for the death of the victim and abandonment of the duties of a public officer whether it be the police or the prosecution. In this court's opinion even if the respondent had some basis of complaint against the police or the prosecution as averred, it is not a licence for the respondent to embark on a public crusade of accusations of malicious conduct on the prosecution and its witness when the trial is still in progress.”

“In this court's final analysis and conclusion, this court agrees with the applicant that there is a real threat and risk to a fair trial and the administration of justice in the on-going trial.”

“The risks that the prosecution will face in the conduct of the trial vis-a-vis the conduct of its witnesses and aspersions of malicious conduct by the prosecution cannot be compensated by any other remedy. An order to gag the respondent is therefore proportionate to the preservation of the right of the prosecution to conduct the trial without fear, undue pressure of public condemnation, suspicion of malicious misconduct or the risk of any of its witnesses becoming an absent, uncooperative or fearful witness. The gag order will essentially restrict the respondent with regards to publications or comments that have the effect of casting allegations of speculation, suspicion or accusations of illegal conduct, cover up and manipulation of evidence by the police, prosecution and the prosecution witnesses pending the final conclusion of the trial.” - Per Mohd Radzi Abdul Hamid JC in PP v. Arumugam Dorasamy [2022] 1 CLJ 297

LATEST CASES

Legal Network Series

[2020] 1 LNS 242

PHAZALUDDIN ABU v. JADADISH CHANDRA BIPIN CHANDRA

Professional misconduct under s. 94(3)(m) of the Legal Profession Act 1976 does not arise when there is agreement on fees and such fees are reasonable. What amounts to a reasonable fee would often depend on multiple factors, including the tax rate at which the costs in question are taxable, the nature of the case, the novelty or complexity of the legal issues presented, the experience of the practitioner, the quality of his work, the duration of time spent, the responsibility involved, the value of the subject matter and any agreement relating to costs that may be entered into.

LEGAL PROFESSION: Advocates and solicitors - Misconduct - Allegation that legal fees charged was grossly excessive - Senior lawyer represented complainant in several criminal cases - Practitioner spent two years to complete cases - Issue of fees being grossly excessive was never put to complainant during cross-examination - Whether agreement has been reached on legal fees - Whether legal fees charged was reasonable - Whether professional misconduct under s. 94(3)(m) of Legal Profession Act 1976 has been proven

  • For the appellant - Ramasamy; M/s Lim Ram & Associates
  • For the respondent - K Selvi J Rajaretnam; M/s Adha Selvi & Associates
  • For the intervener - Bernard Scott; M/s Sault Scott & Co

[2020] 1 LNS 314

NORZALI ROSLE v. TIMBALAN MENTERI DALAM NEGERI, MALAYSIA & ORS

In judicial review proceedings, the Court has discretionary power to order a deponent to be cross-examined. However, such power should be exercised subject to the overriding interest of justice. The Court may exercise its discretion to allow a cross-examination application if the Court is satisfied that there is a conflict in affidavit evidence regarding an issue relevant in the judicial review application that cannot be resolved by undisputed documentary evidence and such an application is made in good faith and without any delay.

ADMINISTRATIVE LAW: Judicial review - Application for - Cross-examination of a deponent in a judicial review application - Exercise of discretionary power of Court - Whether there was conflict in affidavit evidence regarding issue relating to procedural requirements for making direction to suspend a detention order - Whether issue was relevant in judicial review application - Whether party who issued direction to suspend a detention order should be given opportunity to discharge burden to prove that all mandatory procedural requirements for making of direction have been complied with - Whether application was made in good faith - Whether application intended to delay judicial review proceedings - Rules of Court 2012, O. 38 r. 2(2), O. 53 r. 6

ADMINISTRATIVE LAW: Judicial review - Certiorari - Application to quash direction to suspend a detention order issued by Deputy Minister of Home Affairs - Direction required applicant to report to a specific police station - Error in spelling of place where applicant was required to report - Respondent denied direction misspelt name of place - Applicant acknowledged receipt of direction without protest - Whether direction contain any error - Whether direction issued was valid

WORDS AND PHRASES: 'Courts' - Rules of Court of Appeal 1994, s. 12 - Leave to file appeal out of time - Appeal to Court of Appeal against decision of High Court - Whether term 'Court' refers only to Court of Appeal - Whether High Court judge could extend time for a party to lodge an appeal in Court of Appeal - Whether application for leave to file appeal out of time could be filed in High Court

  • For the applicant - Najib Zakaria; M/s Najib Zakaria, Hisham & Co
  • For the respondents - Norazlin Mohamad Yusoff, Federal Counsel; Attorney General's Chambers

[2020] 1 LNS 315

SPRING MAX CAPITAL SDN BHD v. JOHARI HASAN AND ANOTHER CASE

A contract which is allegedly against public policy could only be invalidated by the established heads of public policy codified under s. 24(e) of the Contracts Act 1950 and the Courts should not on its own accord expand or invent any new heads of public policy. However, the Courts may apply the established heads of public policy codified under the said s. 24(e) in new cases with variations and as guided by public opinion.

CONTRACT: Illegality - Public policy - Cleaning services contract - Whether contract falls within any categories of contracts that oppose public policy as codified in s. 24(e) of Contracts Act 1950 ('CA') - Whether Court could on its own expand heads of public policy under s. 24(e) of CA - Whether contract posed any indisputable harm to public

CONTRACT: Joint venture - Joint venture agreement - Breach - Failure to pay commission based on rate specified in agreement and EPF contributions to workers - Whether there was a binding contract between parties - Whether there was breach of obligation under joint venture agreement by one party - Whether a joint venture agreement could be terminated upon breach of terms of agreement by one party - Whether damages available to other party - Whether a party who had breached agreement could rely on doctrine of equitable estoppel

  • For the SMC - Bani Prakash R Ledchumiah & Mahmud Abdul Jumaat; M/s Emir Mahmud & Co
  • For the 21 Contractors & TSGH - Idris Md Isa, Nanthini Nair Ramakrishnan & Umarani Manikavasagam; M/s Idris & Partners

[2019] 1 LNS 1961

LIM MUI KEAU (P) lwn. LAM ENG RUBBER FACTORY (M) SDN. BHD. & YANG LAIN

Permohonan untuk mengubah kapasiti daripada wakil litigasi kepada wakil diri harta pusaka si mati selepas kematian plaintif adalah menepati keperluan A. 15 k. 7(1) dan (2) Kaedah-Kaedah Mahkamah 2012. Isu berkenaan pelantikan wakil litigasi yang telah diputuskan oleh Mahkamah sebagai tidak sah pada awalnya telah menjadi akademik selepas kematian plaintif.

PROSEDUR SIVIL: Pihak-pihak - Locus standi - Perubahan pihak oleh sebab kematian - Permohonan oleh wakil litigasi untuk mengubah kapasiti sebagai wakil diri harta pusaka selepas kematian plaintif - Kewujudan perintah Mahkamah Rayuan yang memutuskan pelantikan wakil litigasi plaintif sebagai tidak sah - Sama ada isu wakil litigasi menjadi akademik selepas kematian plaintif - Sama ada permohonan untuk pelantikan wakil diri harta pusaka telah menepati keperluan A. 15 k. 7(1) dan (2) Kaedah-Kaedah Mahkamah 2012

PROSEDUR SIVIL: Pembatalan - Tindakan - Tindakan dibawa oleh wakil litigasi - Pertikaian berkenaan locus standi - Kewujudan keputusan Mahkamah Rayuan yang memutuskan pelantikan wakil litigasi plaintif sebagai tidak sah - Perubahan kapasiti untuk membawa tindakan selepas kematian plaintif - Permohonan telah dibuat untuk mengubah kapasiti daripada wakil litigasi kepada wakil diri harta pusaka si mati selepas kematian plaintif - Sama ada tindakan bercanggah dengan keputusan Mahkamah Rayuan - Sama ada tindakan wajar dibatalkan

  • Bagi pihak plaintif - C Shanmugaiah; T/n C Shanmugaiah & Co
  • Bagi pihak defendan-defendan - Chang Chen Choong; T/n Syarikat Ng & Anuar

[2019] 1 LNS 1962

OG GLOBAL VENTURE SDN BHD lwn. KEDAH EXOTIC FRUITS SDN BHD & YANG LAIN

Perjanjian pajakan tanah rizab Melayu yang bercanggah dengan peruntukan s. 9 Enakmen Rizab Melayu Kedah dan mempunyai kesamaran atau ketidaktentuan dalam terma-terma adalah terbatal dan tidak boleh dikuatkuasakan. Tindakan untuk menguatkuasakan perjanjian yang telah terbatal wajar diketepikan.

PROSEDUR SIVIL: Pembatalan - Tindakan - Penguatkuasaan perjanjian pajakan - Perjanjian pajakan tanah rizab Melayu melebihi tiga tahun - Perjanjian pajakan bercanggah dengan s. 9 Enakmen Rizab Melayu Kedah - Sama ada perjanjian pajakan boleh dikuatkuasakan - Sama ada tuntutan untuk menguatkuasakan perjanjian pajakan wajar dibatalkan

KONTRAK: Perjanjian - Penguatkuasaan - Perjanjian pajakan - Perjanjian pajakan tanah rizab Melayu melebihi tiga tahun - Perjanjian pajakan bercanggah dengan s. 9 Enakmen Rizab Melayu Kedah - Perjanjian pajakan tidak ditandatangani oleh pemilik berdaftar - Kewujudan kesamaran dan ketidaktentuan terma-terma perjanjian - Sama ada perjanjian pajakan telah melanggar peruntukan s. 24 Akta Kontrak 1950 - Sama ada perjanjian pajakan boleh dikuatkuasakan - Sama ada perjanjian pajakan boleh diketepikan berdasarkan prinsip 'nemo dat non quod habet' - Sama ada perjanjian pajakan adalah terbatal berdasarkan s. 30 Akta Kontrak 1950

  • Bagi pihak plaintif - Noor Hisham Ismail; T/n Peter Miranda & Co
  • Bagi pihak defendan pertama - Lim Ping Kok; T/n CL Teh & Lim
  • Bagi pihak defendan kedua dan ketiga - Noor Hisham Ismail; T/n Najib Zakaria, Hisham & Co

CLJ 2022 Volume 3 (Part 5)

The court should be very slow to deem any punishment meted out by the Public Services Commission in disciplinary cases against public servants as being disproportionate. The danger of a court substituting its personal views as to what is or is not proportionate is very real. How strict the public sector wishes to be on matters of discipline may depend on many factors and circumstances and the justification may lie in the policies developed to tackle certain problems or issues that the public sector may be facing; and these may not be manifest from the facts of any given case.
Sam Maark Verak v. Dato’ Zainal Abidin Ahmad & Ors [2022] 3 CLJ 661 [CA]

ADMINISTRATIVE LAW: Judicial review - Dismissal - Challenge by public servant against decision of Public Services Commission - Public servant charged and found guilty by Public Services Commission for absence from duty, failing to register movements in/or out of office and coming in late for duty to office without leave or without reasonable cause - Public servant dismissed from service - Whether charges against public servant defective - Whether there was requirement for prior internal investigation before public servant was charged and disciplinary action taken - Whether punishment meted out disproportionate and too severe

 

 

HANIPAH FARIKULLAH JCA
LEE SWEE SENG JCA
DARRYL GOON SIEW CHYE JCA

  • For the appellant - Thayalan Moorthy; M/s Dharan & Thaya
  • For the respondents - Kogilambigai Muthusamy; FC

Imposition of conditions for the issuance of a license under s. 14 of the Wildlife Conservation Act 2010 ('WCA') is subject to the prerogative of the licensing officer, and it is different from the power of the Director General under s. 35 of the same Act which conditions are linked to government policy and are more general in nature as they govern the granting of licences. While there are other sections in the WCA that mandated gazettement of various matters therein, there is no such requirement under s. 14 of the WCA. Hence, the non-gazettement of the relevant conditions in the charges against the offender under s. 125(D) of the WCA did not render the charge groundless.
Taman Buaya Langkawi Sdn Bhd v. PP [2022] 3 CLJ 685 [CA]

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CRIMINAL PROCEDURE: Charge - Framing or particulars of - Charges under s. 125(d) of Wildlife Conservation Act 2010 - Non-recording of transactions in registration book issued by Wildlife Department - Non-gazettement of conditions of licence which formed basis of charge - Whether licensing officer given power to impose conditions deemed fit - Whether conditions required to be gazetted before being imposed by licensing officer - Whether non-gazettement of relevant conditions in charges rendered charge groundless - Wildlife Conservation Act 2010, ss. 14 & 35

STATUTORY INTERPRETATION: Interpretation of Acts - Intention of Legislature - Sections 14 and 35 of Wildlife Conservation Act 2010 - Whether s. 14 require the conditions imposed by licensing officer to be gazetted - Whether court restricted from reading words into s. 14 that link to s. 35 - Whether s. 14 provides for specific conditions imposed by licensing officer on licence - Whether conditions under s. 35 linked to government policy and general in nature

 

KAMALUDIN MD SAID JCA
RAVINTHRAN PARAMAGURU JCA
GUNALAN MUNIANDY JCA

  • For the appellant - Muhammad Shafee Abdullah & Wee Yeong Kang; M/s Shafee & Co
  • For the respondent - Norzilati Izhani Zainal; DPP

Section 414(3)(b) and (9) of the Companies Act 2016 do not empower the court to remove the rights of the shareholders. The court would not act where the effect of the matter is the proposal for reduction of the share capital and preference shares which would be akin to the shares being 'expropriated'. Creditors could not displace the rights of the members to its shares even in a judicial management regime. Any alteration in the constitution of a company, pursuant to s. 414(3)(b) of the Companies Act 2016, if permissible, should first be brought before a creditors' meeting held under s. 420(1)(b) of the same Act.
Neptune Asia Services Sdn Bhd & Anor v. Trans Fame Offshore Sdn Bhd; Awgku Mohd Reza Farzak Awg Daud & Ors (Interveners) [2022] 3 CLJ 692 [HC]

COMPANY LAW: Articles of association - Company's constitution - Alteration to add articles - Application for - Whether proposed alterations to company's existing constitution in line with insolvency principles and objectives of judicial management provisions - Whether alterations reasonable and required for any proposal or scheme or arrangement to succeed - Whether court empowered to remove rights of shareholders where effect of matter is proposal for reduction of share capital - Whether creditors could displace rights of members to its shares even in judicial management regime - Whether applicant had locus standi to make application - Companies Act 2016, s. 414(3)(b) & (9)

 

 

NADZARIN WOK NORDIN JC

  • For the 1st applicant - Shim De Zhen & Hazwan Lee; M/s Yeoh Shim Siow & Lay Kuan
  • For the 2nd applicant - Mak Lin Kum & Layyin Teh Hassan; M/s Syed Ibrahim & Co
  • For the respondent - Kennie Ang Joo Koon; M/s Ang & Lau
  • For the 1st, 3rd & 4th interveners - Tay Yi Kuan; M/s Roshan
  • For the 2nd intervener - Noor Akhza Ahmad Khairuddin; M/s Aqeeb & Co

Naming the proper parties is vital in an action premised on tort. Parties who bear the primary responsibility for a particular debacle, in this case, the owners of a landfill, should be made defendants, and not the mere operators of the landfill.
Saj Ranhill Sdn Bhd v. SWM Greentech Sdn Bhd & Anor [2022] 3 CLJ 712 [HCA]

TORT: Damages - Claim for - Claimant suffered damages due to shutdown of water treatment plant - Shutdown allegedly caused by negligent operations and management of solid waste at landfill - Overflow of leachate into stream outside landfill and downstream to river, leading to pollution of river - Whether operators of landfill negligent - Whether operators of landfill owed duty of care to claimant - Whether there was breach of statutory duty - Whether caused nuisance - Whether principle in Rylands v. Fletcher applied - Whether operators liable - Environmental Quality Act 1974, s. 46E

 

 

AHMAD MURAD ABDUL AZIZ JC

  • For the plaintiff - Nor Aishah Abdul Rahman; M/s Aishah A Rahman
  • For the defendants - Saranjit Singh & Dhiya Damia Shukri; M/s Saranjit Singh

Where a statute creates a right and gives a specific remedy or appoints a specific tribunal for its enforcement, a party seeking to enforce the right must resort to that remedy or that tribunal and not to others. The court must deal with an application to injunct such tribunal from performing their adjudicative duties under the legislation with caution so as not to be perceived as prematurely interfering with the adjudicative functions of such specific tribunal.
Tania Scivetti v. Majlis Peguam & Ors [2022] 3 CLJ 728 [HC]

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CIVIL PROCEDURE: Injunction - Permanent injunction - Application for - Permanent injunction restraining Disciplinary Committee of Malaysian Bar ('DC') from proceeding with any disciplinary proceedings against advocate and solicitor - DC failed to commence inquiry within one month from date of appointment without any explanation - Whether there was inordinate delay by DC - Whether DC barred from proceeding with disciplinary proceedings - Whether injunction should be allowed - Whether application premature - Whether allowing application would interfere with adjudicative functions of DC

LIMITATION: Cause of action - Accrual - Disciplinary proceedings by Disciplinary Committee of Malaysian Bar ('DC') against advocate and solicitor - Whether limitation period of six years from date of right of action accrued had lapsed - Whether DC barred from proceeding with disciplinary proceedings - When cause of action accrued - Whether action time-barred - Whether limitation non-issue - Legal Profession Act 1976, s. 99(3A)

 

AHMAD KAMAL MD SHAHID J

  • For the plaintiff - Muhammad Shafee Abdullah & Effa Azuwin; M/s Scivetti & Assocs
  • For the 1st defendant - Ringo Low & Afifah Mahirah Awang Kechik; M/s Ringo Low & Assocs
  • For the 2nd & 3rd defendants - T Gunaseelan & Keshvinjeet Singh; M/s Gunaseelan & Assocs

In the absence of any provision under O. 55 r. 7 of the Rules of Court 2012 as to the time period to file an application to adduce fresh evidence for the purpose of hearing an appeal at the High Court against a lower court's decision, the plaintiff's action in filing an application for leave to adduce the bank's consent, which would have a determining influence on the decision of the Sessions Court, did not amount to an abuse of the court process. As the issues raised by the plaintiff in the suit are triable issues requiring lengthy and mature considerations, the action ought not to be struck out. The Sessions Court had committed an error of law by simultaneously dismissing and striking out the action under O. 18 r. 19(1), causing injustice and warranting appellate intervention.
Yap Chee Keong Holdings Sdn Bhd v. Cosmopolitan Avenue Sdn Bhd [2022] 3 CLJ 764 [HC]

CIVIL PROCEDURE: Striking out - Appeal against - Appeal against Sessions Court's order to strike out suit - Suit filed in Sessions Court against defendant for failure to deliver vacant possession - Whether plaintiff had locus standi to file action - Application by plaintiff to adduce bank's consent in hearing of appeal - Admission of fresh evidence - Test of Ladd v. Marshall - Whether applied to O. 55 r. 7(a) and (b) of Rules of Court 2012 - Whether plaintiff required to have bank's consent at time of filing of action - Whether plaintiff raised triable issues - Whether action frivolous, vexatious and abuse of court's process - Whether Sessions Court could simultaneously dismiss and strike out action pursuant to O. 18 r. 19(1) of Rules of Court 2012

 

 

WONG KIAN KHEONG J

  • For the appellant - Tatvaruban Subramaniam & Noherr Thadani; M/s Skrine
  • For the respondent - Sam How Pek Lean & Winnie Kau Hui Ni; M/s Lim Soh & Goonting

ARTICLES

CLJ Article(s)

  1. A MISSED OPPORTUNITY - APPRAISING "PERSONAL LIBERTY" IN MARIA CHIN ABDULLAH v. KETUA PENGARAH IMIGRESEN & ANOR [2021] 2 CLJ 579 (FC) [Read excerpt]
    by MARK GOH WAH SENG* [2022] 3 CLJ(A) i

    2. [2022] 3 CLJ(A) i
    logo
    MALAYSIA

    A MISSED OPPORTUNITY -
    APPRAISING "PERSONAL LIBERTY" IN MARIA CHIN ABDULLAH v. KETUA PENGARAH IMIGRESEN & ANOR [2021] 2 CLJ 579 (FC)

    by
    MARK GOH WAH SENG*

    Abstract

    Although the facts in the Federal Court decision of Maria Chin Abdullah v. Ketua Pengarah Imigresen & Anor [2021] 2 CLJ 579 (FC) ('Maria Chin Abdullah') may look straightforward at first glance, the decision itself has brought forth a myriad of fascinating constitutional issues. These issues include the concept of constitutional supremacy and the Basic Structure theory, judicial powers under art. 121 of the Federal Constitution, the constitutional validity of ouster clauses, and the concepts of 'life' and 'personal liberty' under art. 5(1) of the Federal Constitution. It is impossible to analyse all these constitutional issues in one article. Hence, I have decided to focus my analysis of Maria Chin Abdullah's case only on judgments that have discussed the term 'personal liberty' in art. 5(1) of the Federal Constitution. This article will analyse the majority and minority decisions on the term 'personal liberty' in art. 5(1) of the Federal Constitution and provide reasons why one of the decisions is better than the other.

    . . .

    * Senior Lecturer, Law Department HELP University

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LNS Article(s)

  1. LEGAL POSITIVISM AND NATURALISM ON PENALTIES FOR INTOXICATED DRIVERS IN MALAYSIA: A COMPARATIVE STUDY [Read excerpt]
    by Saranya Ganesan[i] Lehsheni Krisnan[ii]Dr. Nabeel Mahdi Althabhawi[iii] [2022] 1 LNS(A) xl

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

    LEGAL POSITIVISM AND NATURALISM ON PENALTIES FOR INTOXICATED DRIVERS IN MALAYSIA:
    A COMPARATIVE STUDY

    by
    Saranya Ganesan[i]
    Lehsheni Krisnan[ii]
    Dr. Nabeel Mahdi Althabhawi[iii]

    ABSTRACT

    This article discusses the penalties for intoxicated drivers in Malaysia under both positive and natural laws. A view of the law on intoxication in the 1987 Road Transport Act and the Penal Code has been highlighted, including defences of intoxicated drivers. The authors compared positive and natural law and debated the criticisms. There is also a discussion regarding Singaporean drunk driving laws, which could be taken as an example. The authors also advocate establishing a positive law that emphasises natural law to give natural justice to the victim.

    . . .

    [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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  2. LEGITIMACY OF CHILDREN IN MALAYSIA: UPHOLDING THE BEST INTEREST OF A CHILD? [Read excerpt]
    by Nigy Shazman Tai* [2022] 1 LNS(A) xli

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

    LEGITIMACY OF CHILDREN IN MALAYSIA: UPHOLDING THE BEST INTEREST OF A CHILD?

    by
    Nigy Shazman Tai*

    ABSTRACT

    The relationship between a child and his parents depends on blood relationships. A child born out of wedlock is conferred an illegitimacy status. In light of Article 3 of the Convention on the Rights of the Child, the principle of the best interest of a child demands that children are not to be treated prejudicially, but their interests are to be a paramount consideration. However, illegitimate children are not afforded equal rights compared to legitimate children and thus, it is not in line with the principle of the best interest of a child. This article aims to assess the existing legal framework concerning illegitimate children and examine whether such laws reflect the child's best interest. This article also seeks to find practical change and reforms in upholding their best interest. This study has found that the illegitimate legal status has caused many social-legal problems that deprive illegitimate children of legal rights such as the right to Malaysian citizenship, the right to maintenance from their biological fathers, and being named after their fathers. The article adopts qualitative research methodology, emphasising the doctrinal approach to finding the solutions, including references to other jurisdictions. This article studies the approaches taken in New Zealand and Indonesia in solving the issues faced by illegitimate children. The author argues that it is timely relevant to question and remove the legal disabilities flowing from the concept of illegitimacy and equalise all children.

    . . .

    *Student, Faculty of Law, Multimedia University. The author would like to express his gratitude to Dr Siti Zaharah Binti Jamaluddin, who provided insightful comments on an earlier draft of this article. All errors and omissions are the author's own. The author can be contacted at nigyshazmantai@gmail.com or 1191300327@student.mmu.edu.my.

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  3. NAVIGATING THE BOARDROOM: REMOVAL OF DIRECTOR* [Read excerpt]
    by SM Shanmugam and Hooi Chung Wai** [2022] 1 LNS(A) xlii

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

    NAVIGATING THE BOARDROOM: REMOVAL OF DIRECTOR*

    by
    SM Shanmugam and Hooi Chung Wai**

    Directors are vested with the powers of management in a company, and they alone can exercise those powers. Shareholders cannot usurp the powers conferred to the directors and intervene in the exercise of their managerial powers. Simply put, participation in the capital does not confer any right to interfere in the management of the company.[1]

    That said, shareholders can control and curtail the powers conferred to the board of directors by altering the company's constitution or, if need be, removing the directors whose actions they disapprove of.

    The power to remove a director in either a public or private company before expiration of the director's tenure of office is statutorily enshrined.[2]

    . . .

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

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

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LEGISLATION HIGHLIGHTS

Principal Acts

Number Title In force from Repealed Superseded
ACT 836 Geographical Indications Act 2022 18 March 2022 [PU(B) 169/2022] Geographical Indications Act 2000 [ACT 602] -
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]

Amending Acts

Number Title In force from Principal/Amending Act No
ACT A1649 Patents (Amendment) Act 2022 18 March 2022 [PU(B) 168/2022] except s 14, para 26(a), s 45 and 47, para 48(a), s 55 and para 57(b) ACT 291
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 18 March 2022 [PU(B) 167/2022] except s 4, 5, 6 and 10 ACT 332

PU(A)

Number Title Date of Publication In force from Principal/ Amending Act No
PU(A) 74/2022 Stamp Duty (Exemption) (No. 8) 2018 (Amendment) Order 2022 29 March 2022 30 March 2022 PU(A) 397/2018
PU(A) 73/2022 Road Transport (Prohibition of Use of Road) (Federal Roads) (No. 15) (Revocation) Order 2022 25 March 2022 1 April 2022 ACT 333
PU(A) 72/2022 Allied Health Professions (Amendment of Second Schedule) Order 2022 23 March 2022 24 March 2022 ACT 774
PU(A) 71/2022 Legal Profession (Disciplinary Proceedings) (Amendment) Rules 2022 22 March 2022 23 March 2022 PU(A) 197/2017
PU(A) 70/2022 Legal Profession (Disciplinary Board) (Procedure) (Amendment) Rules 2022 22 March 2022 23 March 2022 PU(A) 191/1994

PU(B)

Number Title Date of Publication In force from Principal/ Amending Act No
PU(B) 192/2022 Amendment To The List of Licensees 1 April 2022 2 April 2022 ACT 731
PU(B) 191/2022 Appointment of Lock-Up To Be A Place of Confinement 31 Mac 2022 1 April 2022 ACT 537; ACT 235; ACT 176; ACT 438; ACT 806; ACT 807
PU(B) 190/2022 Appointment of Authorized Officers 30 March 2022 1 April 2022 ACT 308
PU(B) 189/2022 Appointment of Probation Officers 30 March 2022 1 April 2022 ACT 611
PU(B) 188/2022 Appointment of Protectors 30 March 2022 1 April 2022 ACT 611

Legislation Alert

Updated

Act/Principal No. Title Amended by In force from Section amended
AKTA 291 Akta Paten 1983 PU(A) 63/2022 18 Mac 2022 Jadual Kedua
ACT 291 Patents Act 1983 PU(A) 63/2022 18 March 2022 Second Schedule
AKTA 291 Akta Paten 1983 AKTA A1649 18 Mac 2022 [PU(B) 168/2022] kecuali seksyen 14, perenggan 26(a), seksyen 45 dan 47, perenggan 48(a), seksyen 55 dan perenggan 57(b) Seksyen 3, 13, 14, 17B, 18, 19, 21, 23A, 25, 26A, 26B, 27, 28, 29A, 30, 31A, 32A, 33, 33A, 33B, 33C, 33D, 34, 34A, 35, 35A, 36, 37, 39, 48, 49, 50, 51, 52, 52A, 53, 54, 55, 56, 57(2), 59, 75, 76A,78F, 78G, 78N, 79, 79A(1A) & (1B), 80 - 84, 86, 86A, 87, 87A, 88 dan 88A - 88E
ACT 291 Patents Act 1983 ACT A1649 18 March 2022 [PU(B) 168/2022] except s. 14, para. 26(a), s. 45 and 47, para. 48(a), s. 55 and para. 57(b) Sections 3, 13, 14, 17B, 18, 19, 21, 23A, 25, 26A, 26B, 27, 28, 29A, 30, 31A, 32A, 33, 33A, 33B, 33C, 33D, 34, 34A, 35, 35A, 36, 37, 39, 48, 49, 50, 51, 52, 52A, 53, 54, 55, 56, 57(2), 59, 75, 76A,78F, 78G, 78N, 79, 79A(1A) & (1B), 80 - 84, 86, 86A, 87, 87A, 88 and 88A - 88E
PU(A) 445/2017 Customs Duties (Exemption) Order 2017 PU(A) 20/2022 28 January 2022 Schedule

Revoked

Act/Principal No. Title Revoked by In force from
PU(A) 449/2021 Road Transport (Prohibition of Use of Road) (Federal Roads) (No. 15) Order 2021 PU(A) 73/2022 1 April 2022
PU(A) 159/2012 Copyright (Licensing Body) Regulations 2012 PU(A) 61/2022 18 March 2022
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

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