New This Week

• Case(s) of the Week

  1. PERSATUAN INSURANS AM MALAYSIA (PIAM) & ORS v. COMPETITION COMMISSION [2022] 9 CLJ 268

  2. JUDICIAL QUOTES 

• Latest Cases

  1. Legal Network Series

  2. CLJ 2022 Volume 9 (Part 1)

• Articles

  1. LNS Article(s)

• Legislation Highlights

  1. Principal Acts

  2. Amending Acts

  3. PU(A)

  4. PU(B)

  5. Legislation Alert

CASE(S) OF THE WEEK

PERSATUAN INSURANS AM MALAYSIA (PIAM) & ORS v. COMPETITION COMMISSION [2022] 9 CLJ 268
COMPETITION APPEAL TRIBUNAL, MALAYSIA
CHOO KAH SING J (CHAIRMAN); ASMABI MOHAMAD JCA (COMM); VICTOR WEE ENG LYE (COMM)
[IN THE MATTER OF APPEAL NOS: TRP 1-2020; TRP 2-2020; TRP 3-2020; TRP 4-2020; TRP 5-2020; TRP 6-2020; TRP 7-2020; TRP 8-2020;TRP 9-2020; TRP 10-2020; TRP 11-2020; TRP 12-2020; TRP 13-2020; TRP 14-2020; TRP 15-2020; TRP 16-2020;TRP 17-2020; TRP 18-2020; TRP 19-2020; TRP 20-2020;
TRP 21-2020; TRP 22-2020; TRP 23-2020 & TRP 24-2020]
02 SEPTEMBER 2022

COMPETITION LAW: Anti-competition practices - Anti-competition agreement - Discontention of insurance companies of trade discount on spare parts prices to repair damaged motor vehicle - Whether there was agreement that infringed s. 4(1) of Competition Act 2010 - Whether 'horizontal agreement' - Whether locus standi established - Whether deeming provision under s. 4(2)(b) applicable - Whether Bank Negara Malaysia had legislative power to issue directive(s) under s. 22(3) of Insurance Act 1996 - Whether letter issued was directive to fix parts trade discounts and labour rates - Whether Malaysia Competition Commission in breach of natural justice - Whether Malaysia Competition Commission acted ultra vires - Competition Act 2010, s. 51

JUDICIAL QUOTES

“It is pertinent that the people (subjects of the law) appropriately appreciate that people can and is well within their freedom of speech to criticise, scrutinise, and comment, even if the critic, scrutiny, and commentary seeks to demean another's reputation or sentiments. Just because a statement in its nature would defame another's reputation does not automatically make that defamatory statement an actionable tort. If any and all defamatory statement can be an actionable tort, then the courts would unnecessarily be inundated with defamation actions and the nation would be deprived of an integral form of check and balance, and meaningful or piercing dialogue into the affairs and administration of the country.” – per Azimah Omar J in Mohamed Apandi Ali v. Lim Kit Siang [2022] 7 CLJ 786

LATEST CASES

Legal Network Series

CLJ 2022 Volume 9 (Part 1)

The claim by the appellants, allegedly the participants in what was known as Kawasan Rancangan FELCRA Bukit Tandak since early 1980, without any legitimate legal basis disclosed in their pleadings to claim ownership or rights in the rubber trees planted on the land, neither in law nor in equity, were obviously unsustainable. The land was never gazetted and/or brought into the ambit of the Land (Group Settlement Areas) Act 1960 and neither did the appellants have any title or right to or over the land on which the rubber trees were planted; they remained unalienated State land.
Abdul Latif Puteh & Ors v. Pentadbir Tanah Jajahan Pasir Mas & Anor [2022] 9 CLJ 1 [CA]

• SUBJECT
• CORAM
• COUNSEL

Cases of high authority are clear on the approach to be taken in the interpretation of contracts. Essentially, one looks at the language of the contract. Where the language is unambiguous and clear, there is no scope to consider the supposed intention of parties and in a choice between competing interpretations, the one which makes more commercial sense shall be preferred.
Hewlett-Packard (M) Sdn Bhd & Anor v. Agih Tinta Sdn Bhd [2022] 9 CLJ 15 [CA]

• SUBJECT
• CORAM
• COUNSEL

To succeed in relying on the incompetency of counsel resulting in breach of constitutional right to fair trial, it must be shown that there has been flagrant or gross incompetency that deprived the accused of a fair trial. This only applies in an extreme situation that causes a miscarriage of justice. What is an 'extreme situation' must depend on the facts of each case.
Mohammad Jobi Ullah v. PP [2022] 9 CLJ 37 [CA]

• SUBJECT
• CORAM
• COUNSEL

The words 'the officer having the custody of the records of the court' in s. 400 of the Criminal Procedure Code ('CPC') does not strictly refer to or is not restricted to the Registrar of Criminals. Such words have not been defined in the CPC. It is clearly not the intention of the Legislature, for the purpose of s. 400 of the CPC, to require only the Registrar of Criminals to prove the past convictions of an accused person.
PP v. Azfaiz Jamil [2022] 9 CLJ 57 [CA]

• SUBJECT
• CORAM
• COUNSEL

Costs is at the discretion of the court; the court has the power to direct a non-party to pay the costs of any suit, appeal or other proceedings, provided that the non-party has been warned, at the earliest opportunity, that costs would be sought personally against him.
Twin Faber Sdn Bhd v. Ng Cheng Keng [2022] 9 CLJ 74 [CA]

• SUBJECT
• CORAM
• COUNSEL

The offence of corruptly soliciting or receiving gratifications under the Malaysian Anti-Corruption Commission Act 2009 ('Act'), namely under s. 16(a)(A) thereof, may and can be committed through an intermediary. It follows that where the accused had conveyed the solicitation through a trusted aide and had, through the latter's assistance, received the money or part of the money solicited, the ingredients of the offence or offences, including the presumption so spoken of under s. 50(1) of the Act, had been satisfied and triggered. It is then up to the accused to 'turn the tables' against the prosecution and rebut the presumption or presumptions that arose, failing which the case against him could have been proven beyond reasonable doubt as to make him guilty of the offence or offences charged.
PP v. Rosmah Mansor [2022] 9 CLJ 83 [HC]

• SUBJECT
• CORAM
• COUNSEL

Where a charge is brought against an owner of a land for any alleged offence under s. 70A of the Street, Drainage and Building Act 1974, and the prosecution intends to rely on the presumption under s. 70A(14) of the same Act, it is imperative that the works must be proven to have been commenced or carried out after or within the period when the accused is the owner of the land.
PP v. Solican Construction Sdn Bhd [2022] 9 CLJ 147 [HC]

• SUBJECT
• CORAM
• COUNSEL

ARTICLES

LNS Article(s)

1. RESURRECTING A COMPANY TO ENFORCE AN ARBITRAL AWARD* ^{[Read excerpt]}
   by Iris Ng** [2022] 1 LNS(A) xcix

[2022] 1 LNS(A) xcix



SINGAPORE

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RESURRECTING A COMPANY TO ENFORCE AN ARBITRAL AWARD*

by
Iris Ng**

This article explores the possibility of resurrecting a company under section 208(1) of the Insolvency, Restructuring and Dissolution Act or section 344(5) of the Companies Act. It considers the following issues: (a) whether the statutory time limits may be extended; (b) the circumstances in which the Court will exercise its discretion to resurrect a company; and (c) the extent to which resurrection retrospectively validates proceedings purportedly commenced by or against the company between its dissolution/striking off and resurrection.

In National Oilwell Varco Norway AS (formerly known as Hydralift AS) v. Keppel FELS Ltd (formerly known as Far East Levingston Shipbuilding Ltd) (National Oilwell),^[1] the Singapore High Court held that an award rendered in favour of a party (E) may only be enforced by E. Where E did not exist, there was simply no one with standing to enforce the award. In passing, the court suggested that if E – a corporation that had been struck off the register – were restored to the register, an enforcement action might lie. This article explores that possibility.

. . .

*The article was originally published in the September 2021 issue of the Singapore Law Gazette, the official publication of the Law Society of Singapore. Reproduced with permission.

**LL.B., Singapore Management University, Attorney-General's Chambers. E-mail: ng.lishan.iris@gmail.com.

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2. VOLENTI NON FIT INJURIA & SPORTS INJURY CASES ^{[Read excerpt]}
   by S Santhana Dass* [2022] 1 LNS(A) c

[2022] 1 LNS(A) c



MALAYSIA

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VOLENTI NON FIT INJURIA & SPORTS INJURY CASES

by
S Santhana Dass*

GENERAL PRINCIPLES

The maxim volenti non fit injuria (in modern language termed as 'voluntary assumption of risk') is commonly used to imply that the plaintiff consented to a course of conduct which resulted in harm to himself or herself and, due to such consent, lost the right to a remedy in tort. A direct translation of the Latin phrase volenti non fit injuria is, 'to one who volunteers, no harm is done'. In simple words, if a person gives free consent to a risk, knowing all the consequences attached to that risky action, he cannot sue the other party in case of any injury or harm. Where it applies, the defence of volenti operates as a complete defence, absolving the defendant of all liability. Volenti non fit injuria defence requires the claimant to freely and voluntarily enter into an agreement with full knowledge of the circumstances to absolve the defendant of all legal consequences of their actions.

. . .

*LLB (Hons) University of Singapore; LLM (Sports Law and Practice) De Montford University, UK.

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