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  1. WONG SHEE KAI v. GOVERNMENT OF MALAYSIA [2022] 10 CLJ 1

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CASE(S) OF THE WEEK

WONG SHEE KAI v. GOVERNMENT OF MALAYSIA [2022] 10 CLJ 1
FEDERAL COURT, PUTRAJAYA
TENGKU MAIMUN TUAN MAT CJ; ABANG ISKANDAR CJ (SABAH AND SARAWAK); VERNON ONG LAM KIAT FCJ; RHODZARIAH BUJANG FCJ; ZABIDIN MOHAMAD DIAH FCJ
[SUIT NO: BKA-1-08-2021(W)]
06 OCTOBER 2022

CONSTITUTIONAL LAW: Jurisdiction - Federal Court - Petition - Challenge against constitutional validity of ss. 63 and 64 of Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001 - Whether subject matter of petition within original jurisdiction of court - Whether leave to file petition ought not to have been granted - Whether Federal Court can consider question of own jurisdiction once leave granted - Federal Constitution, art. 4(3) & (4)

APPEAL UPDATES

1. Peguam Negara Malaysia v. Mohd Kassim Abd Hamid [2022] 6 CLJ 41; [2022] 1 LNS 615 affirming the High Court case Peguam Negara Malaysia v. Mohd Kassim Abd Hamid [Criminal Suit No: BA-42(ORS)(A)-1 -09/2019]

2. Ong Kong Beng & Anor v. Ong Kong Leong & Ors [2021] 1 LNS 2651 overruling the High Court case of Ong Kong Leong & Ors v. Ong Kong Beng & Anor [Writ Summon No.: 22NCVC - 497-10/2014]

LATEST CASES

Legal Network Series

CLJ 2022 Volume 9 (Part 6)

Participation in trade union activities alone by a trade union member or officer in the capacity as a trade union member or officer, in the name of the trade union, ought not to be a ground for dismissal. Such activities must be established to have been carried out maliciously or was knowingly or recklessly false. The employer must consider the dual aspects, ie, the employee's work as well as the statutory provisions affording protection in relation to the trade union activities, before deciding on the employee's dismissal.
Ismail Nasaruddin Abdul Wahab v. Malaysian Airline System Bhd [2022] 9 CLJ 801 [FC]

• SUBJECT
• CORAM
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(i) Vacant possession is not synonymous with right of occupation, as clearly defined in the sale and purchase agreement. The developer only required to physically complete the works and provide a certificate of practical completion to provide vacant possession; it matters not if the premises is connected with essential utilities; (ii) letters by the architect of a project merely serves the purpose of informing the purchaser of the delay of the project; it does not qualify as a certificate of extension of time which would justify the developer's delaying in the delivery of vacant possession of the premises; (iii) when a purchaser successfully discharges its burden of proof that there was a breach of contract and the sale and purchase agreement contains a clause specifying a sum to be paid upon the breach, the purchaser is entitled to the liquidated ascertained damages (LAD), especially when the rate of the LAD is fair and reasonable.
Icon City Development Sdn Bhd v. K-Shin Corporation Sdn Bhd [2022] 9 CLJ 827 [CA]

• SUBJECT
• CORAM
• COUNSEL

(i) It is manifestly clear from the words of s. 80(8) and (9) of the Legal Profession Act 1976 ('LPA') that the victim of any dishonest act of an advocate and solicitor, or his clerk or servant, whether the advocate and solicitor is practicing as a sole proprietor or in partnership with others, or whether the advocate and solicitor has a valid practicing certificate at the material time, may make a claim from the compensation fund for any loss suffered by him from that act of dishonesty. The Majlis Peguam Malaysia ('Majlis') does not have such powers to issue Guidelines to restrict claims only to acts of dishonesty of advocates and solicitors who are sole proprietors; (ii) The Majlis is a statutory body and the exercise of statutory powers are justiciable and open to scrutiny of the courts. The act of the Majlis in arriving at a decision vide an ultra vires act, could not be shielded by applying s. 111 of the LPA.
Michael Joseph Carvalho & Anor v. Majlis Peguam Malaysia [2022] 9 CLJ 849 [CA]

• SUBJECT
• CORAM
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The land administrator, in conducting a land enquiry, is not obliged to accept the valuation done by any one of the party's valuer, even if such valuation is accepted by the other party. It is not for the parties to agree on the market value or any other valuation. The law gives that discretion to the land administrator. The land administrator decides on the adequacy of compensation, as provided in s. 12 of the Land Acquisition Act 1960; the valuation report prepared by the Government valuer or the private valuer merely act as a guide in determining the award of compensation.
Northern Green Ventures Sdn Bhd v. Pentadbir Tanah, Hulu Langat [2022] 9 CLJ 865 [CA]

• SUBJECT
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In a matter where freedom of expression and/or where fundamental liberties are being stifled, a reasoned decision must be given. Otherwise, it will violate the principles of procedural fairness guaranteed by art. 8 of the Federal Constitution.
Chong Ton Sin & Ors v. Menteri Dalam Negeri & Anor [2022] 9 CLJ 898 [HC]

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(i) In construing a will, the intention of the testator is paramount and must be given effect to. The intention is to be derived from the wordings of the will. The duty of the court is to give effect to the wishes of the testator; and (ii) a no-contest clause in a will is only effective if the testator demonstrates it by the inclusion of a gift over that he is indeed in earnest.
Hong Lee Peng & Ors v. Hong Shaw Lin & Ors [2022] 9 CLJ 919 [HC]

• SUBJECT
• CORAM
• COUNSEL

A record of appeal that is not served within the time stipulated and does not contain a memorandum of appeal as required by O. 55 r. 4 of the Rules of Court 2012 is defective and incompetent. Without the extension of time to regularise the irregularities, there is no valid appeal before the court.
Lim Kwee Fen & Anor v. KT Home Mart Sdn Bhd [2022] 9 CLJ 943 [HC]

• SUBJECT
• CORAM
• COUNSEL

(i) The time for applying to set aside a default judgment runs from the receipt of the order/judgment, not from when a defendant comes to know of it; and (ii) the annulment of an adjudicating order necessarily means that there had never been any adjudication and there was never a bankrupt. In such situation, there is no requirement on a plaintiff to obtain any leave of the court to file a writ against a defendant.
Maybank Islamic Bhd v. Sunhor Builders Sdn Bhd & Ors [2022] 9 CLJ 956 [HC]

• SUBJECT
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ARTICLES

LNS Article(s)

1. ADMISSIBILITY OF ILLEGALLY AND IMPROPERLY OBTAINED EVIDENCE IN NIGERIA — A LESSON FROM THE UNITED STATES OF AMERICA AND THE UNITED KINGDOM ^{[Read excerpt]}
   by Gambo ABDULSALAM* [2022] 1 LNS(A) cx

[2022] 1 LNS(A) cx



NIGERIA

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ADMISSIBILITY OF ILLEGALLY AND IMPROPERLY OBTAINED EVIDENCE IN NIGERIA —
A LESSON FROM THE UNITED STATES OF AMERICA AND THE UNITED KINGDOM

by
Gambo ABDULSALAM*

ABSTRACT

By the provision of section 36(1) and (5) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) ('Constitution of Nigeria'), every accused is entitled to the right to a fair hearing and the presumption of innocence until proven guilty in accordance with the procedure permitted by law. In a complementary manner to the Constitution, the country's Administration of Criminal Justice Act, 2015 provides for a host of procedures which shall be complied with by the police in a criminal investigation. Among the provisions are sections 6, 15(3) and 17(2) of the Act, which provides a suspect with the right to silence until after consultation with a legal practitioner of his choice, members of the Legal Aid Council, and members of civil society or other persons of his choice. The Act requires further that statement, when volunteered, shall be video or audio recorded in the presence of a counsel for the suspect or other persons of his choice without providing consequences for non-compliance. In contrast, the country's Evidence Act, 2011 provides for the admissibility of evidence improperly obtained where the same is relevant. In this paper, the writer uses the doctrinal research method to explore whether the legal regime on the admissibility of improperly obtained evidence under the 2011 Act is inconsistent with the international standard on the right to a fair hearing enshrined in the Constitution. In the final analysis, the writer makes recommendations for reform.

. . .

*Gambo ABDULSALAM, LLB (BUK), LLM PhD (Research Fellow) ABU, BL, is a Senior Lecturer, Nigerian Law School Kano Campus, Jos Road Bagauda, Kano. Email: abdussalamgambo2@gmail.com.

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2. CHOICE OF LAW FOR TORTS IN THE VIRTUAL WORLD AND THE FUTURE OF VIRTUAL DISPUTE RESOLUTION* ^{[Read excerpt]}
   by Ronald JJ Wong** [2022] 1 LNS(A) cxi

[2022] 1 LNS(A) cxi



SINGAPORE

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CHOICE OF LAW FOR TORTS IN THE VIRTUAL WORLD AND THE FUTURE OF VIRTUAL DISPUTE RESOLUTION*

by
Ronald JJ Wong**

What law applies to torts and non-contractual wrongs in the online virtual world when the parties and acts traverse different jurisdictions? How does the choice of law rules operate? What novel approaches to this area of law and to online dispute resolution are possible in the horizon? This article explores these questions.

Introduction

Let us imagine that someone in the metaverse or on the Internet did a wrong to you (outside of a contractual relationship), e.g. defamed you, cheated you, or passed off as your business. That someone is from another country A. The act had effects in yet another country B. Or the act was done such that technically, the relevant communications were published in a physical server in yet another country C. What law would apply to your claim?

While there may be choice of law clauses in the terms of use of the metaverse service or the virtual platform, these apply to the relationship between the service provider and the user. They do not apply to the wrongs done between users of the service or the platform. The law on this issue is complicated although it may appear deceptively intuitive.

. . .

*The article was originally published in the April 2022 issue of the Singapore Law Gazette, the official publication of the Law Society of Singapore. Reproduced with permission.

** Director, Covenant Chambers LLC. E-mail: ronald.wong@covenantchambers.com.

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