Back to Top

Print this page

Issue #3/2022 20 January 2022

New This Week Case(s) of the Week DATO' SRI MOHD NAJIB HJ ABD RAZAK v. PP [2022] 1 CLJ 491 PP v. RAVICHANTHIRAN GANESAN [2022] 1 CLJ 804 Appeal Updates Appeal Updates Latest Cases Legal Network Series CLJ 2022 Volume 1 (Part 4) CLJ 2022 Volume 1 (Part 5) Articles LNS Article(s) Legislation Highlights Principal Acts Amending Acts PU(A) PU(B) Legislation Alert

DATO' SRI MOHD NAJIB HJ ABD RAZAK v. PP [2022] 1 CLJ 491
COURT OF APPEAL, PUTRAJAYA
AB KARIM AB JALIL JCA; HAS ZANAH MEHAT JCA; VAZEER ALAM MYDIN MEERA JCA
[CRIMINAL APPEAL NO: W-05(SH)-(231-233)-07-2020]
08 DECEMBER 2021

CRIMINAL LAW: Malaysian Anti-Corruption Commission Act 2009 - Section 23(1) - Public officer - Using office or position for gratification - Appellant as Prime Minister and Minister of Finance - Whether public officer - Appellant as Prime Minister, Minister of Finance and Advisor Emeritus of Government-linked company - Whether having potent power and overarching control over company - Company applied and granted RM4 billion loan by Retirement Fund (Incorporated) - Appellant chaired Cabinet meetings to approve loan - Whether having 'interest' in company - Whether 'interest' integral part of offence - Company transferring funds into appellant's personal bank accounts - Whether 'gratification' within meaning of s. 23(1) - Whether appellant suffering from conflict of interest situation vis-a-vis Government decision to grant guarantees - Presumption of existence of 'interest' - Whether applicable - Whether appellant properly convicted and sentenced - Malaysian Anti-Corruption Commission Act 2009, s. 23(1), (2)

CRIMINAL LAW: Penal Code - Section 409 - Criminal breach of trust - Ingredients - Appellant Prime Minister and Minister of Finance - Appellant appointed Advisor Emeritus of Government-linked company with overarching authority over company - Whether 'agent' of company - Whether in law director and shadow director of company - Whether entrusted with dominion over property of company - Company applied and granted RM4 billion loan by Retirement Fund (Incorporated) - Company transferring funds into appellant's personal bank accounts - Funds utilised by appellant - Whether appellant 'dishonest' - Whether had converted monies for own use and benefit - Whether had committed misappropriation - Whether had committed criminal breach of trust - Penal Code, ss. 402A, 405 & 409

CRIMINAL LAW: Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001 - Section 4(1) - Money laundering - Appellant Prime Minister and Minister of Finance - Appellant appointed Advisor Emeritus of Government-linked company with overarching authority over company - Company applied and granted RM4 billion loan from Retirement Fund (Incorporated) - Company transferring funds into appellant's personal bank accounts which appellant utilised - Whether appellant committed offences under s. 23(1) of Malaysian Anti-Corruption Commission Act 2009 and s. 409 of Penal Code - Whether funds received and spent proceeds of unlawful activity - Whether guilty of wilful blindness - Whether had committed money laundering - Predicate offences under ss. 23(1) and 409 - Whether proven

CRIMINAL PROCEDURE: Sentence - Adequacy - Public officer - Prime Minister cum Minister of Finance - Convicted of offences of using position for gratification, criminal breach of trusts and money laundering - Fair and appropriate sentence

WORDS & PHRASES: 'Officer of a public body' - Section 23(1) of Malaysian Anti-Corruption Commission Act 2009 - Prime Minister and Minister of Finance - Whether 'receiving remuneration from public funds' - Whether officer of public body

WORDS & PHRASES: 'And includes' - Section 402A of Penal Code - Whether denoting three categories of company directors - Second category thereof - Whether denoting 'shadow director'

WORDS & PHRASES: 'Agent' - Section 402A of Penal Code - Interpretation - Whether unnecessary for prosecution to prove agent-principal relationship once accused proven to be agent within meaning of section - Whether to include 'shadow director' of company

WORDS & PHRASES: 'Entrustment' - Section 405 of Penal Code - Whether need not be exclusive - Whether could be made jointly

WORDS & PHRASES: 'Dishonesty' - Dishonesty in relation to criminal misappropriation or criminal breach of trust - Import and purport - Intention to defraud or deceive - Whether immaterial - Whether only requiring intention to cause wrongful loss or wrongful gain

---

PP v. RAVICHANTHIRAN GANESAN [2022] 1 CLJ 804
HIGH COURT MALAYA, JOHOR BAHRU
SHAHNAZ SULAIMAN JC
[CRIMINAL APPEAL NO: JA-41LB-6-05-2021]
23 NOVEMBER 2021

CRIMINAL PROCEDURE: Police investigation - Refusal to answer question - Email forgery - Investigation required password to email - Whether refusal to answer question within right - Whether refusal amounted to offence under s. 186 of Penal Code - Criminal Procedure Code, s. 112

CRIMINAL LAW: Offences - Obstructing public servant from carrying out official duties - Email forgery - Investigation required password to email - Whether refusal to answer question within right - Whether refusal amounted to offence under s. 186 of Penal Code - Whether there was voluntary obstruction of public servant from carrying out official duties - Whether there was physical obstruction or criminal force - Criminal Procedure Code, s. 112

---

1. Sunny Junction Sdn Bhd v. Jittra Sdn Bhd [2021] 1 LNS 805 (CA) overruling the High Court case Jittra Sdn Bhd v. Jittra Sdn Bhd & Ors [Guaman No: WA-22NCC-26-01-2018]

2. Pump Matrix Engineering Sdn Bhd v. Warmal Wil Heavy Duty Pumps Sdn Bhd [2021] 1 LNS 862 (CA) affirming the High Court case of Warmal Wil Heavy Duty Pumps Sdn Bhd v. Pump Matrix Engineering Sdn Bhd [2019] 1 LNS 740

Legal Network Series

[2020] 1 LNS 100	PRAGASAM SHGER v. PP A conviction for trafficking dangerous drugs based on the invocation of double presumption under s. 37(d) and 37(da)(iiia) of the Dangerous Drugs Act 1952 is unconstitutional and should be set aside. CRIMINAL PROCEDURE: Appeal - Appeal against conviction and sentence - Offence of trafficking dangerous drugs - Trial judge had invoked double presumption under s. 37(d) and 37(da)(iiia) of Dangerous Drugs Act 1952 - Whether invocation of double presumption was unconstitutional - Whether conviction ought to be set aside For the appellant - Ranjit Singh; M/s Ranjit Gill & Co For the respondent - TPR Tetralina binti Ahmed Fauzi; Attorney General's Chambers
[2020] 1 LNS 101	NAZARUDDIN MOHD SHARIFF @ MASARI & ANOR v. PEJABAT TANAH & DAERAH HULU LANGAT & ORS An administrator of a Muslim property must obtain a faraid certificate from the Syariah Court, which will list the heirs and the portions to be distributed to them according to Islamic law. A faraid certificate can minimize the negative complications surrounding the distribution of an estate. Hence, an action brought in civil court by an administrator to determine ownership of a property in the estate of a Muslim without first obtaining the faraid certificate from the Syariah Court is bound to fail. ISLAMIC LAW: Succession - Administration of estate of a Muslim - Duty of administrator - Significance of faraid certificate - Whether administrator of a Muslim property must obtain faraid certificate from Syariah Court - Whether administrator could bring action in civil court over ownership of property in estate of a Muslim person without obtaining faraid certificate - Whether faraid certificate could minimize negative complications surrounding distribution of estate LAND LAW: Ownership - Dispute - Administrator claiming ownership of land - Administrator one of beneficiary of estate - System in land office wrongly keyed administrator as owner of land - Land office subsequently corrected error by amendment - Absence of faraid certificate to show administrator was sole beneficiary of estate - Whether any party who claims interest and ownership of land must file an action for court to resolve dispute over said land - Whether administrator could suddenly be owner of land without explanation - Whether dispute could be resolved through affidavit evidence For the appellants - Afifi Ahmad, Ismail Yahya & Mohd Fakhzan Mohd Noor; M/s Fakhzan Azlina & Associates For the 1st respondent - Siti Fatimah Talib; Legal Advisor Office For the 2nd and 3rd respondents - Manpal Singh Sachdev, Ph Cheah & Nor Afifah; M/s Manjit Singh Sachdev, Mohammad Radzi & Pts
[2020] 1 LNS 122	MARK SIA ENG JOO v. ONG WEI WEI & ANOR; SAI YEE @ SIA SAY YEE & ORS (INTERVENER) The power of the family court to divide matrimonial assets are confined to parties to the marriage itself and does not include a third person. Where a third party has intervened in the matrimonial proceedings and claimed ownership right over assets that have been listed but have yet to be determined as matrimonial assets by the family court, and the said third party has also filed an action in the civil court to determine the status of the assets in dispute, the family court judge has judicial discretion to stay the matrimonial proceedings and allow the legal issue to be resolved in the civil court. FAMILY LAW: Divorce - Stay of proceedings - Stay application filed by interveners - Special circumstances - Monies in bank accounts registered in joint names of petitioner husband and interveners listed as matrimonial assets - Interveners alleged monies in bank accounts belong to them - Existence of civil court proceedings filed by intervener against petitioner husband for determination of status of bank accounts in dispute - Stay application objected by respondent wife - Whether family court a proper forum to decide issues between petitioner husband and intervener - Whether there was real and immediate possibility of duplicity of action leading to unnecessary possibility of differing judgments if stay not granted - Whether what amounts to special circumstances left to opinion and judicial discretion of presiding judge - Whether there was special circumstances to justify stay For the petitioner husband - Vignesvary Alahakone & Jayarajah; M/s Alahakone & Associates For the respondent wife - Michelle Lim & Colin Liew; M/s Chih-Jen & Associates For the interveners - WH Kan & Jillian Yuen Jie Ying; M/s WH Kan
[2019] 1 LNS 1747	LEE TEAK HOC & SATU LAGI lwn. LITAR SISTEM ADILKAP SDN BHD Ia adalah adil dan saksama untuk Mahkamah memerintahkan penggulungan syarikat sekiranya suatu syarikat membuat representasi kepada umum bahawa syarikat tersebut menjalankan perniagaan pemberi pinjam wang berlesen sedangkan syarikat tersebut tidak mempunyai sebarang lesen sah yang dikeluarkan oleh Pendaftar Pemberi Pinjam Wang. UNDANG-UNDANG SYARIKAT: Penggulungan - Adil dan saksama - Syarikat menjalankan perniagaan berlesen tanpa dilesenkan dengan sewajarnya - Syarikat telah membuat representasi kepada umum bahawa ia menjalankan perniagaan pemberi pinjam wang berlesen - Sama ada pengarah syarikat telah bertindak dalam hal ehwal syarikat demi kepentingan pengarah syarikat sendiri berbanding dengan kepentingan anggota syarikat secara keseluruhannya - Sama ada adalah adil dan saksama untuk Mahkamah memerintahkan penggulungan syarikat - Akta Syarikat 2016, s. 465(1)(f), (h) & (j) Bagi pihak perayu - Chun Chee Chong & James Ong; T/n CC Chun & Co Bagi pihak responden-responden - Kalaidevi, Ranjit Singh & Naim Kamaruddin; T/n Ranjit Singh Sandhu & Co
[2019] 1 LNS 1429	GOODWIN ENGINEERING SDN BHD v. SIM TECH ENGINEERING SDN BHD Defendan harus dihalang daripada mempertikaikan suatu format pembayaran sekiranya defendan sejak awal lagi telah memilih untuk membuat bayaran kepada plaintif mengikut format yang dinyatakan di dalam tuntutan berperingkat tersebut meskipun format pembayaran tersebut tidak mematuhi terma-terma kontrak. KONTRAK: Kontrak pembangunan - Tuntutan untuk kerja-kerja yang telah dilakukan - Penyata akaun dan tuntutan berperingkat plaintif tidak dipertikaikan - Penyata akaun dan tuntutan berperingkat hanya dipertikaikan ketika perbicaraan penuh - Pertikaian berkenaan format pembayaran seperti yang dinyatakan di dalam tuntutan berperingkat - Kewujudan bayaran yang lepas mengikut format yang dinyatakan di dalam tuntutan berperingkat - Sama ada plaintif telah menjalankan kerja-kerja yang diawadkan dengan sempurna - Sama ada defendan wajar dihalang daripada mempertikaikan penyata akaun dan tuntutan berperingkat - Sama ada defendan boleh mempertikaikan format bayaran yang dinyatakan di dalam tuntutan berperingkat Bagi pihak perayu - YK Loo; T/n YK Loo & Co Bagi pihak responden - Rejinder Singh Gurdev Singh; T/n Rejinder Singh & Associates

---

CLJ 2022 Volume 1 (Part 4)

In a charge against a public officer for 'using his office or position for gratification' under s. 23(1) of the Malaysian Anti-Corruption Commission Act 2009, there is no duty on the part of the prosecution to prove the nature of the 'interest' that such an officer may have in the impugned action or decision forming the subject matter of the charge. 'Interest' is not an integral part of the offence under s. 23(1); not until the prosecution has decided to rely on and invoke the presumption in s. 23(2) of the Act. The word 'interest' has not been statutorily defined; notwithstanding, specifically for the latter scenario, once an interest that has gone beyond the accused's public office has been proved, the accused is caught by the ambit of s. 23(1) and is presumed in law to have committed the offence under s. 23(2) of the Act.
Dato’ Sri Mohd Najib Hj Abd Razak v. PP [2022] 1 CLJ 491 [CA]

• SUBJECT
• CORAM
• COUNSEL

---

CLJ 2022 Volume 1 (Part 5)

The deliberate act of the accused in hitting the deceased on the head with a baseball bat, thereby causing her death, although done without the intention to cause death, may nevertheless amount to murder pursuant to cl. (c) of s. 300 of the Penal Code; under the clause, all that is required is proof of an intention to inflict an injury that is sufficient in the ordinary course of nature to cause death.
Zulkiple Mohamad v. PP [2022] 1 CLJ 673 [FC]

• SUBJECT
• CORAM
• COUNSEL

Damages serve as a compensation, not a reward nor a punishment. The courts cannot speculate in assessing damages and must evaluate cogent evidence based on the recognised balance of probability standard.
Nur Farzana Aida Faizal & Ors v. Kerajaan Malaysia [2022] 1 CLJ 692 [CA]

• SUBJECT
• CORAM
• COUNSEL

Memorandum and articles of association serve to define the objects of a company and to provide the regulations by which the company would operate, be governed and be managed, statutorily deemed agreed to by its members. Articles of association, although is a contract between the members and company and among members inter se, it may also be incorporated between a company and a third party, either by express or implied agreement. However, the article alone, without more, does not constitute a contract between a company and a third party, be it the director or otherwise. In this case, the former directors' claim for indemnification failed as they have failed to establish that the article has incorporated the particular specific provision for indemnification.
A company's Articles of Association (article), which is a contract between the company and its members and among its members inter se, may be incorporated between the company and a third party, including its director, either by express or implied agreement. However, the article alone, without more, does not constitute a contract between the company and the third party. Hence, where a claim for indemnification was launched by third-party directors against the company on the ground that such claim was allowable and sustainable under the company's article, it falls on the directors to prove that a specific provision for indemnification has indeed been incorporated in the same; failure to prove the provision or raise any inference thereof is fatal to the claim.
Perdana Petroleum Bhd v. Tengku Dato’ Ibrahim Petra Tengku Indra Petra & Ors [2022] 1 CLJ 725 [CA]

• SUBJECT
• CORAM
• COUNSEL

The courts' jurisdiction to hear a judicial review application is not excluded despite the existence of a statutory appeal remedy under the Income Tax Act 1967 when the application shows strong merit. The courts are inclined to grant judicial review more so when the threshold for granting of leave for judicial review is very low and prima facie has been shown that the application is not frivolous or vexatious.
AIA Bhd v. Ketua Pengarah Hasil Dalam Negeri [2022] 1 CLJ 760 [HC]

• SUBJECT
• CORAM
• COUNSEL

Walaupun s. 88(3) Akta Membaharui Undang-undang (Perkahwinan dan Penceraian) 1976 memperuntukkan anggapan statutori bahawa anak yang berumur bawah tujuh tahun hendaklah berada dengan ibunya, seorang bapa layak diberi hak penjagaan dan kawalan bagi anak tersebut dalam keadaan-keadaan tertentu, termasuk jika keadaan emosi yang tidak stabil si ibu boleh membawa risiko dan menjejaskan kesejahteraan si anak.
Manoj Devan Pillai Raja Segaran lwn. Yoshita Subramaniam [2022] 1 CLJ 775 [HC]

• SUBJECT
• CORAM
• COUNSEL

A champertous agreement on the issue of legal fees does not negate the appointment of solicitors or their right to receive reasonable fees for work done. Any challenge to the quantum of the legal fees must be made pursuant to the provisions of the Legal Profession Act 1976, failing which the fees become final and payable and cannot be disputed or challenged.
Muhammed Shareef Mohamed Sagubar v. Tetuan Idris & Associates & Another Appeal [2022] 1 CLJ 796 [HC]

• SUBJECT
• CORAM
• COUNSEL

A witness' refusal to answer a question posed by an investigation officer pursuant to s. 112 of the Criminal Procedure Code which if answered would expose him to a criminal charge or penalty cannot amount to an offence of 'voluntarily obstructing a public servant in the discharge of his public function' within the meaning of s. 186 of the Penal Code; a witness is well within his right not to answer such a question. An offence under s. 186, in any case, cannot bite without the alleged obstruction being wilful which in turn connotes something which is done without lawful excuse. Further, the word 'obstruction' in the section means actual obstruction and implies the use of criminal force; accordingly, it is insufficient to prove mere threats or threatening language or mere abuse.
PP v. Ravichanthiran Ganesan [2022] 1 CLJ 804 [HC]

• SUBJECT
• CORAM
• COUNSEL

The courts are duty-bound to consider both the rights of the victim, in this case a special needs child alleged to have been raped, and the accused. The burden on the prosecution to prove its case is always beyond reasonable doubt, no matter who the victim or the accused is. The threshold is always the same.
Roslan Baki v. PP [2022] 1 CLJ 818 [HC]

• SUBJECT
• CORAM
• COUNSEL

---

LNS Article(s)

1. EXPANDING THE CONTOURS OF PATENT ILLEGALITY IN INDIAN ARBITRATION ^{[Read excerpt]}
   by Aparna Tripathi^[i] Anjali Tripathi^[ii] Niharika Julka^[iii] [2022] 1 LNS(A) v

[2022] 1 LNS(A) v



INDIA

---

EXPANDING THE CONTOURS OF PATENT ILLEGALITY IN INDIAN ARBITRATION

by
Aparna Tripathi^[i]
Anjali Tripathi^[ii]
Niharika Julka^[iii]

INTRODUCTION

In India, the advent of modern arbitration can be traced back to the reign of the British East India Company. Taking control of their judicial and administrative powers in India, the East India Company formulated the first formal legislation concerning arbitration, namely the Indian Arbitration Act, 1899, considerably modelled on the British Arbitration Act, 1889. Over time, in the pursuit of giving birth to more specific legislation, the Arbitration Act, 1940 came into the picture. However, one of the biggest shortcomings of the legislation was that it did not consider the importance of the principle of 'minimum interference by courts'. This naturally had the effect of countless appeals being filed in the courts against arbitral awards, leading to unnecessary delays in enforcement, ultimately defeating the purpose behind the alternate dispute resolution mechanism.

These shortcomings, particularly in the form of constant court intervention, laid the ground for the Arbitration and Conciliation Act, 1996 (hereinafter referred to as 'the Act'). To address the failings of its predecessor and restore faith in arbitration, the Act limited the grounds under which an arbitral award could be challenged before the court. While these developments contributed significantly to the growth of arbitration in India, subsection 2A was added to section 34 of the Act by the 2015 amendment largely on the recommendations of the Law Commission Report No. 246. By virtue of this amendment, an additional ground for challenging a domestic arbitral award before the courts were introduced by the name of 'patent illegality'. That is to say, a court of law could now set aside an arbitral award if it fell within the ambit of patent illegality.

. . .

[i] Advocate, Bar Council of Delhi.

[ii][iii] Amity Law School, Delhi, affiliated to Guru Gobind Singh Indraprastha University, Delhi, India.

---

Please subscribe to cljlaw or login for the full article.

2. FORFEITURE OF GOODS UNDER SECTION 128(1)(a) OF THE CUSTOMS ACT ^{[Read excerpt]}
   by Mohd Taufik Bin Mohd @ Mohd Yusoff* [2022] 1 LNS(A) vi

[2022] 1 LNS(A) vi



MALAYSIA

---

FORFEITURE OF GOODS UNDER SECTION 128(1)(a) OF THE CUSTOMS ACT

by
Mohd Taufik Bin Mohd @ Mohd Yusoff*

INTRODUCTION

When discussing forfeiture of property, one cannot escape from the grasp of the Article 13, which provides:

Rights to property

(1) No person shall be deprived of property save in accordance with law.

(2) No law shall provide for the compulsory acquisition or use of property without adequate compensation.

In making decisions, the authorities must ensure that their decisions conform with Article 13. In the context of our discussion, not only the officer from the Customs Department must strictly observe the requirements spelt out in law, but it also covers the owner.

. . .

*Currently serving as Sessions Court Judge in Miri.

---

Please subscribe to cljlaw or login for the full article.

3. PRESUMPTION OF LEGITIMACY IN MALAYSIA: A BRIEF LEGAL HISTORY ^{[Read excerpt]}
   by Mazlina Mahali^[i] Muhammad Umar Abdul Razak^[ii] [2022] 1 LNS(A) vii

[2022] 1 LNS(A) vii



INTERNATIONAL

---

PRESUMPTION OF LEGITIMACY IN MALAYSIA:
A BRIEF LEGAL HISTORY

by
Mazlina Mahali^[i]
Muhammad Umar Abdul Razak^[ii]

ABSTRACT

The presumption of the legitimacy of a child in Malaysia is governed by section 112 of the Evidence Act 1950. The provision essentially identifies the legal father of a child born during marriage by way of presumption. If a child is born during a marriage, or 280 days after the marriage is dissolved, and the mother remains unmarried, the husband shall be conclusively presumed to be the child's father. According to the provision, the only fact that can rebut this presumption is the lack of sexual access. The rule, although a procedural tool, is substantive in nature and was predominantly adopted from common law. However, various scholars have not given much credence to the existence of the presumption in the ancient era. Hence, this paper explores the historical setting concerning the concept of the presumption of legitimacy from ancient Egypt, classical Greece and ancient Rome. It also seeks to examine the adoption of the presumption by common law, as well as how the presumption evolves into the presumption of paternity, particularly under American jurisprudence. The last part of the paper considers the implementation of the presumption by India and, subsequently, Malaysia. The authors concluded that understanding the legal history of the presumption's evolution is necessary to make any viable recommendations regarding the presumption.

. . .

[i] Corresponding author, Senior Lecturer, Faculty of Law, Universiti Teknologi MARA, 40450 Shah Alam, Selangor, Malaysia. Email: mazlinamahali@uitm.edu.my.

[ii] Senior Lecturer, Faculty of Law, University Teknologi MARA 40450 Shah Alam, Selangor, Malaysia. Email: umar0001@uitm.edu.my.

---

Please subscribe to cljlaw or login for the full article.

Principal Acts

Amending Acts

PU(A)

PU(B)

Legislation Alert