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  1. DATIN SERI ROSMAH MANSOR v. PP & ANOTHER APPEAL [2022] 4 CLJ 523

  2. JUDICIAL QUOTES 

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CASE(S) OF THE WEEK

DATIN SERI ROSMAH MANSOR v. PP & ANOTHER APPEAL [2022] 4 CLJ 523
COURT OF APPEAL, PUTRAJAYA
HANIPAH FARIKULLAH JCA; GUNALAN MUNIANDY JCA; HASHIM HAMZAH JCA
[CRIMINAL APPEAL NOS: W-05-336-09-2021 & W-05-338-09-2021]
22 MARCH 2022

CRIMINAL PROCEDURE: Jurisdiction - High Court - Granting of declaratory reliefs - Whether High Court exercising criminal jurisdiction has power to grant declaratory reliefs - Whether subject matter of declaration civil in nature - Whether criminal court could be equated with civil court for purpose of exercising powers relating to grant of declaration - Courts of Judicature Act 1964, s. 22(1)(a), (b) - Criminal Procedure Code

JUDICIAL QUOTES

“Naturally, there is a difference between the making of a fatwa (as in the procedure and law to adhere to) and the substantive contents of the fatwa. As regards the procedure, it necessarily requires compliance with written law and the failure to do so might result in the issuance of public law remedies that can only be issued by the civil superior courts. The contents of the fatwa and their interpretation are a different story and a matter purely for the jurisdiction of the Syariah courts to the extent that it relates to “hukum syarak” or personal law and not matters which objectively might be taken to contradict any written law (Federal or State statutes or even the FC for that matter).”

“Thus, simply put, if the vires of any fatwa or the conduct of the Fatwa Committee is challenged purely on the basis of constitutional or statutory compliance, then it is a matter for the civil courts. If the question pertains to the matters of the faith or the validity of the contents of the fatwa tested against the grain of Islamic law, then the appropriate forum for review or compliance is the Syariah courts.” – per Tengku Maimun Tuan Mat CJ in SIS Forum (Malaysia) v. Kerajaan Negeri Selangor; Majlis Agama Islam Selangor (Intervener) [2022] 3 CLJ 339

LATEST CASES

Legal Network Series

CLJ 2022 Volume 4 (Part 3)

Pertuduhan jenayah berkaitan najis dadah adalah satu pertuduhan yang teramat berat, yang melibatkan penghidupan dan nyawa seseorang tertuduh. Tersilap percaturan, tertuduh yang tidak bersalah akan ke tali gantung. Setiap aspek proses, bermula dari tangkapan hingga siasatan oleh pihak polis dan pertuduhan oleh pihak pendakwaan jenayah harus diteliti rapi dan tidak boleh dipandang enteng. Hakim bicara pula berperanan menghalusi setiap keterangan yang dikemukakan di hadapan beliau tanpa terlepas secebis pun untuk memastikan kes pendakwaan dibuktikan melampaui keraguan munasabah.
Muhammad Hafiz Mukrimin Abdulkeh lwn. PP & Satu Lagi Rayuan [2022] 4 CLJ 329 [CA]

• SUBJECT
• CORAM
• COUNSEL

In a case of enforcing a foreign judgment ('FJ') for a specific sum of money, to ensure that there are no nomenclature mistakes relating to the defendants' correct names in the translation of the FJ, source documents such as trade licences ought to be given to the translator so that the names of the defendants are correctly depicted in the translation. Taking into consideration the evidence as a whole and the surrounding factors such as the defendants' consent via a written letter to the plaintiff to apply for release of monies attached to the foreign court, it is proven on a balance of probabilities that the defendants are the parties against whom the foreign court entered judgment.
Pembinaan SPK Sdn Bhd & Anor v. Conaire Engineering Sdn Bhd-LLC [2022] 4 CLJ 357 [CA]

• SUBJECT
• CORAM
• COUNSEL

This judgment, which pertained to an unlawful and doctored video clip of an online court trial, was written in the public interest regarding the due administration of justice for members of the public, in particular practising advocates and solicitors, to be aware of the following adverse consequences in respect of the making and distribution of the doctored video clip: (i) contempt of court; (ii) possible commission of offences under ss. 233(1)(a)(i) and 233(1)(a)(ii) of the Communications and Multimedia Act 1998; (iii) defamation of the advocate and solicitor under tort and criminal law (s. 499 of the Penal Code ); and (iv) any advocate and solicitor and/or pupil who is involved in the making and/or distribution of the doctored video clip may have committed a disciplinary offence under s. 94(3) of the Legal Profession Act 1976 and may be liable for disciplinary sanction by the Disciplinary Board.
Celcom (Malaysia) Bhd & Anor v. Tan Sri Dato’ Tajudin Ramli & Ors And Another Case (No 2) [2022] 4 CLJ 381 [HC]

• SUBJECT
• CORAM
• COUNSEL

The provisions of the Personal Data Protection Act 2010, being provisions of a specific Act enacted for the protection of personal data, must prevail over the general provisions of the Income Tax Act 1967 ('ITA'), including s. 81. The Director-General of Inland Revenue ('DGIR') could not be allowed to have access to the database of personal information of a company's customers, or any taxpayer for that matter, until and unless the DGIR demonstrates that there are reasonable suspicions that a specific, identified and/or identifiable customer had not complied with any material provision of the ITA relating to the assessment or collection of tax so as to warrant a disclosure of the personal data of that particular customer. The DGIR cannot seek a blanket disclosure and conduct a fishing expedition without meeting the requisite standards of necessity and proportionality to justify an infringement of the right to privacy protected under art. 5(1) of the Federal Constitution.
Genting Malaysia Bhd v. Pesuruhjaya Perlindungan Data Peribadi & Ors [2022] 4 CLJ 399 [HC]

• SUBJECT
• CORAM
• COUNSEL

The property developer's solicitors' conduct, in advising the purchasers to lodge a private caveat on one of the contra units purchased via contra transaction between the purchasers and the property developer was indicative that it had, in fact, acted for the purchasers in relation to the contra units, despite the fact that the purchasers did not pay the solicitors' legal fees. As the sole solicitors in the preparation of the sale and purchase agreement between the parties, the solicitors had not acted in accordance with common conveyancing practice when it failed to inform the purchasers that it was acting only on behalf of the property developer. Hence, the purchasers had, on a balance of probabilities, succeeded in its claim of professional negligence against the solicitors.
Hong & Fong v. Tan Po Lin & Anor [2022] 4 CLJ 454 [HC]

• SUBJECT
• CORAM
• COUNSEL

The mother of three children, having earlier obtained sole custody, care and control of the children and that order, being still valid and subsisting, is entitled to the custody of the children; the defiance of such order would tantamount to contempt. The Social Welfare Department was in unlawful detention of the children, who were subjected to unilateral conversion, and therefore, the application for habeas corpus for the release of the children to the sole custody, care and control of the mother ought to be allowed.
Loh Siew Hong v. Nazirah Nanthakumar Abdullah & Anor [2022] 4 CLJ 467 [HC]

• SUBJECT
• CORAM
• COUNSEL

Subsequent to his retirement from the Judiciary, former Chief Judge of the High Court of Sabah and Sarawak and later Chief Justice, petitioned to be admitted to practice as a lawyer in Sarawak and applied to be exempted from doing pupillage. The defendant's main place of work was in Kuching for a continuous period of 12 years, from 2006 to 2018. That would necessarily entail the defendant having a place of residence in Kuching to satisfy the requirement of 'Sarawak connections' under s. 2(2)(b) of the Advocates Ordinance (Sarawak) (Cap 110). It mattered not if the defendant, at the same time, had a residence in Kuala Lumpur or Putrajaya to discharge his duties as the Chief Justice of Sabah and Sarawak cum Justice of the Federal Court or continued to maintain a residence in Sabah where the defendant was originally from.
Voon Lee Shan v. Richard Malanjum [2022] 4 CLJ 485 [HC]

• SUBJECT
• CORAM
• COUNSEL

ARTICLES

LNS Article(s)

1. VIRTUALIS TESTIMONIUM: THE CALL TO EMBRACE VIRTUAL WITNESSING IN MALAYSIA ^{[Read excerpt]}
   by Sherise Goo* [2022] 1 LNS(A) l

[2022] 1 LNS(A) l



MALAYSIA

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VIRTUALIS TESTIMONIUM: THE CALL TO EMBRACE VIRTUAL WITNESSING IN MALAYSIA

by
Sherise Goo*

ABSTRACT

This article examines the current Malaysian position on the recognition of virtual or online witnessing and attestation of various legal documents as an alternative to physical witnessing. This issue has surfaced due to the social distancing and movement restriction requirements imposed by the government to curtail the spread of COVID-19 cases. Such requirements have rendered it challenging to hold in-person meetings, thus posing a barrier to physical witnessing of the execution of various legal documents. Regrettably, no legislation, primary or secondary, has been enacted thus far to address this predicament. The only guidance on virtual witnessing was issued in the form of a circular by the Malaysian Bar Council, in which a conservative stance was adopted. In Circular No 222/2021, 'Witnessing Signatures via Video Conferencing for Conveyancing Related Documents' dated 8 June 2021, virtual witnessing is discouraged if the statutory obligation of witnessing signatures is based on the wordings of 'in the presence of'. These wordings can be found in statutory provisions governing the execution of wills, instruments of dealings, and powers of attorney, to mention but a few. As held by Her Ladyship Justice Zainun Ali in Sawinder Kaur Fauja Singh v. Charnjit Singh Thakar Singh [1998] 1 CLJ Supp 402, the phrase 'in the presence of' denotes 'actual, visual presence' of a witness.

. . .

*LLB (2:1), University of London. Currently a CLP candidate at Brickfields Asia College. The article has been supervised, reviewed, and endorsed by Liow Si Khoon from M/s Liow & Co.

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2. JURISPRUDENTIAL ANALYSIS OF ABORTION LAW IN MALAYSIA ^{[Read excerpt]}
   by Calvin Cherley^[i]Norsakinah Rahemi^[ii]Shahrul Mizan Ismail^[iii] [2022] 1 LNS(A) li

[2022] 1 LNS(A) li



MALAYSIA

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JURISPRUDENTIAL ANALYSIS OF ABORTION LAW IN MALAYSIA

by
Calvin Cherley^[i]
Norsakinah Rahemi^[ii]
Shahrul Mizan Ismail^[iii]

ABSTRACT

The issue of legalizing abortion has been kicking up the dust of controversies as arguments can be made both for and against legalizing it as both are found to be equally convincing. The act of abortion does involve not only the mother but also the unborn fetus. Abortion is found to be legalized or permitted in many countries on various grounds. However, abortion has still been deemed an offence under the Malaysian Penal Code. Thus, in a bid to establish a stance on the issue of whether abortion should be legalized or not in Malaysia, this paper intends to analyze and explore the said matter from some jurisprudential perspectives. This paper also serves to analyze the legal position of abortion in Malaysia, India and the United States of America. The finding shows that abortion law in Malaysia has not been liberalized like in India and the United States of America. Next, it is concluded that the current abortion law in Malaysia is not justified by the naturalist and socialist schools of thought but is justified by the legal positivist school of thought. The importance of this paper is to provide a clear understanding of the jurisprudential analysis of abortion law in Malaysia.

. . .

[i] [ii] Third Year Law Students, Faculty of Law, the National University of Malaysia.

[iii] LLB (Hons) (IIUM), LLM (Human Rights) (Nottingham), PhD (UKM); Advocate & Solicitor (Malaya) (Non-practising); Associate Professor, Faculty of Law, Universiti Kebangsaan Malaysia (UKM), Malaysia.

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