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23 June 2022
New This Week
CASE(S) OF THE WEEK
LIM LIP ENG v. ONG KA CHUAN  5 CLJ 847
A political party such as the MCA in this appeal has no cause of action in defamation. Political parties, as registered societies, have no existence of their own separate from their members and are dependent on their members to sue or be sued; consequently, they do not have the requisite reputation to complain of or to be protected within the spheres of the law of defamation. It is also not right nor is it in the public interest to put the public in fear of a defamation suit by a political party; a political party must not be thin-skinned and must always be open to public criticism.
TORT: Defamation - Claim - Action filed by political party against individual - Defamatory statement allegedly issued by member of Parliament - Whether political party could maintain suit for defamation - Whether political party had requisite reputation which law of defamation intends to protect - Whether political party legal entity which could sue or be sued in own name - Whether political party had locus standi to file defamation suit
CIVIL PROCEDURE: Striking out - Application for - Action filed by political party against individual - Defamatory statement allegedly issued by member of Parliament - Whether political party could maintain suit for defamation - Whether action ought to be struck out - Rules of Court 2012, O. 18 r. 19(1)(a), (b), (c), (d)
The award of RM150,000 as general damages and RM100,000 as exemplary damages against the defendant for breach of promise to marry is flawed and needed to be reassessed. The issue of quantum aside, awarding punitive damages in the absence of clear aggravating circumstances or reprehensible conduct on the part of the defendant is unwarranted and uncalled for; the trial court had thus erred in awarding exemplary damages. The award of general damages too had not factored in the defendant's means, or that it could cause the defendant financial ruin, or that it was manifestly disproportionate to his culpability; it ought to be reduced to RM50,000.
CONTRACT: Marriage - Breach - Breach of promise to marry - Relationship irretrievably broken down before date of registration of marriage - Conduct of plaintiff - Whether contributed to defendant's loss of interest in pursuing marriage - Claim for damages - Factors considered - Whether there was evidence of aggravating conduct by defendant - Whether award of exemplary damages without justification - Whether award of general damages excessive and disproportionate to culpability of defendant - Whether award of damages ought to be reduced or set aside
DAMAGES: Quantum - General and exemplary damages - Breach of promise to marry - Factors considered - Financial means - Conduct of plaintiff - Whether contributed to defendant's loss of interest in pursuing marriage - Whether there was evidence of aggravating conduct by defendant - Whether award of exemplary damages without justification - Whether award of general damages excessive and disproportionate to culpability of defendant - Whether award of damages ought to be reduced or set aside
“The principles on which an appellate court is allowed to receive additional evidence were earlier enunciated in the case of R v. Parks  3 All ER 633 (“R v. Parks”), which was later approved by the House of Lords in the case of R v. Pendleton  1 WLR 72.
Based on the above-cited cases, the appellant must cumulatively satisfy all the four requirements propounded in R v. Parks and the prerequisite in s. 61 of the CJA that it is necessary for the justice of the case in order to be allowed to adduce the additional evidence. Further, only in the most exceptional circumstances will the court receive additional evidence, and the matter is left entirely to the discretion of the appellate court if necessary in the interest of justice.” – Per Ab Karim Ab Jalil, Has Zanah Mehat, Vazeer Alam Mydin Meera JJCA in Dato' Sri Mohd Najib Hj Abd Razak v. PP  4 CLJ 231
Legal Network Series
CLJ 2022 Volume 5 (Part 5)
Once custody and control of the offensive drugs is proved, the trial judge in a drug trafficking case is left with no discretion not to invoke the presumption under s. 37(d) of the Dangerous Drugs Act 1952 (DDA), whereupon the onus of proof shifts to the accused to show, on the balance of probabilities, that he had no knowledge of the drugs and of the nature of the drugs; if the accused could prove, in rebuttal of the presumption, that he had no knowledge of the drugs on both counts, he would be acquitted outright of the trafficking charge despite being in physical possession of the drugs. On the contrary, any failure on the part of the accused to rebut the presumption of knowledge under s. 37(d) must mean that the presumed knowledge of the presence of the drugs and of the nature of the drugs became actual proof of the facts presumed; it became the truth that the appellant knew not only of the presence of the drugs but also that they were dangerous drugs. Notwithstanding, the trial judge, after having found the accused to have failed to rebut the presumption of knowledge under s. 37(d), is next compelled to invoke the further step of considering whether the accused's act of knowingly carrying or transporting the drugs was for the purpose of trafficking. The trial judge would have committed a serious error of law if he had proceeded to convict the accused without going through this separate exercise. It also goes that, for this separate exercise, the correct standard of proof to apply is the lighter evidential burden of casting a reasonable doubt on the prosecution case, and not the heavier burden of proving on the balance of probabilities, which is the standard required to rebut the presumption of trafficking under s. 37(da) of the DDA.
CRIMINAL PROCEDURE: Defence - Dangerous drugs - Accused person called to enter defence upon prove of prima facie case at end of prosecution case - Whether court followed procedure under s. 180 of Criminal Procedure Code - Whether accused to be informed reasons why defence called - Whether establishment of prima facie case obvious - Failure to state whether any presumption of law applies against accused person - Whether ipso facto rendered decision to call for defence flawed
CRIMINAL PROCEDURE: Dangerous Drugs Act 1952 - Section 39B(1)(a) - Appeal against conviction and sentence - Trial judge invoked presumption under s. 37(d) of Dangerous Drugs Act 1952 - Accused person proven to have knowledge of presence of drugs in large amount in his custody and control - Whether presumption correctly invoked - Whether defence correctly called - Whether judge's failure to inform whether defence called on presumed trafficking or direct trafficking caused prejudice - Whether proffered plausible explanation for carrying of large amount of drugs - Whether blanket denial of knowledge of drugs - Whether burden of proof discharged - Dangerous Drugs Act 1952, ss. 37(d) & (da) - Criminal Procedure Code, ss. 180 & 182A
ABDUL RAHMAN SEBLI FCJ
Terma 'orang berkepentingan' bawah s. 2(1) Akta Pengambilan Tanah 1960 ('APT') adalah luas dan termasuk setiap orang yang mempunyai kepentingan terhadap pampasan yang hendak dibuat kerana pengambilan sesuatu tanah bawah APT. Oleh yang demikian, walaupun suatu pengambilan tanah itu dibuat bagi pihak Pihak Berkuasa Negeri, jika Borang D yang diwartakan menunjukkan dengan jelas nama agensi yang menjadi agensi pembayaran dan bertanggungjawab melaksanakan pembangunan atas tanah yang diambil tersebut, seperti mana yang berlaku dalam kes di sini, maka agensi tersebut, untuk maksud APT, adalah termasuk dalam tafsiran 'orang berkepentingan'. Mengambil kira semua ini, Lembaga Pembangunan Langkawi dalam kes ini adalah 'orang berkepentingan'; maka ia berhak dan mempunyai locus standi untuk membantah jumlah pampasan yang diawardkan oleh Pentadbir Tanah.
UNDANG-UNDANG TANAH | PENTAFSIRAN BERKANUN | PERKATAAN & ISTILAH
UNDANG-UNDANG TANAH: Pengambilan tanah - Bantahan terhadap award - 'Pihak berkepentingan' - Sama ada pemohon pihak berkepentingan - Sama ada pemohon berhak membantah pampasan yang diawardkan kepada tuan tanah oleh Pentadbir Tanah - Akta Pengambilan Tanah 1960, s. 38(5) - Kaedah-kaedah Mahkamah 2012, A. 14A k. 1, A. 33 k. 2 & A. 33 k. 5
PENTAFSIRAN BERKANUN: 'Pihak berkepentingan' - Akta Pengambilan Tanah 1960, s. 37 - Sama ada pemohon pihak berkepentingan
PERKATAAN & ISTILAH: 'Pihak berkepentingan' - Akta Pengambilan Tanah 1960, s. 37 - Sama ada pemohon pihak berkepentingan
ARIK SANUSI YEOP JOHARI PK
Section 580A of the Companies Act 2016 ('CA') empowers the court to order security for costs where there is evidence to suggest that a plaintiff company may be unable to pay its debts to the defendant in the event the defendant successfully defends the claim against it by the plaintiff. When an exempt private company under the CA has failed to pay the judgment debt in a previous suit and is unable to pay the applicant's costs in the event the applicant is successful in its defence in a suit, the court ought to order the company to give security for costs.
CIVIL PROCEDURE: Costs - Security for costs - Application for - Preliminary objection - Whether applicant's non-statement of s. 580A of Companies Act 2016 in its notice of application prejudiced court's power to make order for security for costs - Whether applicant in non-compliance with any rules in Rules of Court 2012 - Whether there was substantial miscarriage of justice - Whether preliminary objection ought to be dismissed - Companies Act 2016, ss. 465(1)(e), 466(1)(a) - Rules of Court 2012, O. 2 r. 3 & O. 32 r. 1
CIVIL PROCEDURE: Costs - Security for costs - Application for - Whether company statutorily deemed under Companies Act 2016 to be unable to pay its debts - Whether there was high probability that applicant would not be able to recover costs of its defence from company - Whether court entitled to make order for security for costs - Companies Act 2016, ss. 465(1)(e), 466(1)(a) & 580A - Rules of Court 2012, O. 2 r. 3 & O. 32 r. 1
FAIZAH JAMALUDIN J
When the dominant element of the workers' work functions was proven to be mental effort by using their mind and intellect, and physical effort was only ancillary to the mental component of their work, the workers could not be said to be engaged in manual labour, making them unable to claim for overtime pay.
LABOUR LAW: Employment - Overtime payment - Claim for - Whether claimants engaged in manual labour - Whether claimants' work functions executive and managerial in nature requiring high level of intellectual thinking - Whether dominant element of claimants' work mental effort - Whether physical effort ancillary to mental component of work - Whether Labour Office's decision to dismiss claimants' overtime claims 'plainly wrong' - Whether claimants entitled to overtime pay
KENNETH ST JAMES JC
Sogit kampung and sogit mangsa, as an adat of the Kadazandusun of Penampang, are meant to appease the family of the victims in a misadventure or misfortune, and its parameters must remain finite as such and not be unnecessarily extended or magnified. It follows that for the appellants pedestrians herein, the fact that they have accepted and retained sogit kampung monies from the respondents after being hit by a vehicle driven by the first respondent and owned by the second respondent, were not restrained by law from filing an action claiming for damages against the latter. Conversely, for the respondents, payment of such monies cannot amount to 'accord and satisfaction' and cannot by itself discharge them from further liability.
ROAD TRAFFIC: Accident - Claim - Liability - Appeal against decision of Sessions Court Judge - Driver lost control of vehicle and ran onto pedestrians standing at roadside - Victims accepted 'sogit kampung' and 'sogit mangsa' - Adat or customary of Kadazandusun of Penampang - Whether intention of all parties that accident to be settled amicably between parties through payments of 'sogit' - Whether initial cash payments for medical expenses/treatments received and retained by victims showed intentions and agreements to discharge driver from further liability - Whether victims estopped from pursuing legal action
AMELATI PARNELL JC
(i) The action by the chargor challenging the validity of the order for sale obtained by the bank upon default in payment by the chargor is bound to fail; not only did the chargor fail to establish any 'cause to the contrary' but that the successful bidder, having satisfied all the requirements and having his name registered in the title of the property, had obtained an indefeasible title to the property; (ii) An undischarged bankrupt is incompetent to commence any proceedings in court without the prior sanction of the Director General of Insolvency, the rationale being to protect the interest of the creditors.
LAND LAW: Sale of land - Auction - Challenge against order for sale - Property auctioned by bank upon default in payments by chargors - Whether order for sale obtained in compliance with s. 263 of National Land Code ('NLC') - Whether bankrupt chargor obtained sanction of Director General of Insolvency before commencing proceedings - Whether 'cause to the contrary' under s. 256(3) of NLC shown - Whether registration of successful bidder's name in title formed conclusive evidence of proprietorship - Whether successful bidder a bona fide purchaser - Whether obtained indefeasible title
JOHN LEE KIEN HOW JC
Award yang diberi dalam kes ini - antara lain RM100,000 untuk kesakitan dan penderitaan, RM100,000 untuk estet si mati, RM100,000 untuk ganti rugi misfeasans dalam jawatan (bagi kematian si mati-si mati di tangan defendan-defendan yang cuai dan bertindak di luar tugas statutori) dan RM100,000 bagi ganti rugi teruk - adalah tinggi. Namun ini tidaklah melampau atau berlebihan selepas mengambil kira keadaan kematian si mati yang masih muda, tindakan anggota polis yang cuai menjalankan tugas dan kemudian mengeluarkan kenyataan yang tidak bertanggungjawab untuk menjustifikasikan tindakan mereka menembak si mati-si mati di kepala dan dada serta kesan-kesannya atas pihak-pihak yang menuntut iaitu ahli keluarga si mati-si mati.
TORT | PERKATAAN & ISTILAH
TORT: Ganti rugi - Tuntutan - Tiga orang ditembak mati oleh pihak polis - Tuntutan ganti rugi oleh ahli keluarga dan pentadbir harta pusaka ketiga-tiga si mati - Sama ada tuntutan disokong keterangan-keterangan relevan - Ganti rugi yang wajar diawardkan
PERKATAAN & ISTILAH: 'Secara global' - Award - Tiga orang ditembak mati oleh pihak polis - Tuntutan ganti rugi oleh ahli keluarga dan pentadbir harta pusaka ketiga-tiga si mati - Pendaftar mengawardkan ganti rugi 'secara global' - Sama ada 'secara global' bermaksud award untuk semua plaintif dan award perlu dibahagi sama rata antara plaintif-plaintif - Sama ada 'secara global' meliputi kesemua 'heads of claim' yang dituntut
KHADIJAH IDRIS H
The amended planning permission, upon being proven to be a continuation of the initial planning permission, approved pursuant to the Town and Country Planning Act 1976, and where the density of the development was still within the maximum density approved in the original planning permission, ought not to have been set aside by the Appeals Board. In approving the original planning permission, the local authority had taken into account various considerations and the Appeals Board had acted illegally, irrationally and unreasonably in setting aside the amended planning permission and therefore, the applicant's application for judicial review was allowed.
ADMINISTRATIVE LAW: Judicial review - Certiorari and mandamus - Application against decision of Appeals Board setting aside part of amended planning permission granted by local authority - Whether local authority taken into account relevant planning considerations - Whether guidelines to amend original planning permission considered before approval granted - Whether amended planning permission proper - Whether decision by Appeals Board tainted with illegality, irrationality and unreasonableness - Whether intervention warranted LOCAL GOVERNMENT: Building - Planning permission - Application to amend planning permission allowed by local authority - Appeals Board set aside part of amended planning permission based on density of undeveloped lots - Whether original planning permission and amended planning permission related to planning of same land - Whether continuous development - Whether increase in density of development within maximum density of original planning permission - Whether Appeals Board wrong to exclude parts of original land under master title in calculation of density - Whether decision by Appeals Board tainted with illegality, irrationality and unreasonableness - Town and Country Planning Act 1976, s. 22(2), (3) & (4)
QUAY CHEW SOON JC