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22 December 2022
New This Week
CASE(S) OF THE WEEK
NASRUDDIN MOHAMAD v.
In an instance where the employee is under a legitimate expectation that he will be dismissed, the employer could not subsequently change its stance and terminate the employee's service based on public interest. In both the instances, there are procedures incumbent on the employer, and where such procedures are not adhered to, the employee's termination of service based on public interest would amount to illegality and procedural impropriety.
ADMINISTRATIVE LAW: Judicial review - Appeal against - Employee tested positive for drug but never prosecuted in court - Initiation of disciplinary action with view for dismissal - Subsequent letter stating termination of service based on public interest - Whether employee under legitimate expectation that dismissal would ensue and not termination on public interest - Whether employee's legitimate expectation was reasonable - Whether requirements under r. 49 of Public Officers (Conduct and Discipline) Regulations 1993 ('Regulations') complied with - Whether Regulations could be adopted with modifications - Administration of Islamic Religious Affairs (Terengganu) Enactment 2001, s. 45
ADMINISTRATIVE LAW: Judicial review - Appeal against - Termination of service based on public interest - Employee tested positive for drugs but never prosecuted in court - Termination of service pursuant to r. 7 of Public Officers (Conduct and Discipline) Regulations 1993 - Whether requirements for effective termination complied with - Whether requirement for medical certification mandatory - Whether non-compliance with procedure amounted to illegality and procedural impropriety
CORNELIA MUSLIE & ANOR v.
(i) Adoption of a child, whether born legitimate or illegitimate, does not operate retrospectively to acquire citizenship by operation of law under art. 14(1)(b) read together with s. 1(a) Part II, Second Schedule of the Federal Constitution . The sole determinant to acquire citizenship by operation of law is the citizenship of either biological parent, obtained at the time of the child's birth. Adoption, and for that matter, citizenship of the adoptive parents, is immaterial and irrelevant; and (ii) An adopted child who is illegitimate at the time of birth, but whose lineage could be traceable to his/her biological mother, could not be said to be as one 'who is not born a citizen of any country' because at the time of his/her birth, he/she acquired the citizenship of the biological mother.
CHILDREN AND YOUNG PERSONS: Adoption - Citizenship - Whether adopted child should be registered as citizen of Malaysia - Acquisition of citizenship by operation of law - Article 14(1)(b) read together with Part II of Second Schedule of Federal Constitution ('FC') - Whether origin of paternal and maternal side of child must be ascertained - Whether child must be born in Federation to biological parents one of whom, at time of birth, either citizen or permanently resident in Federation - Whether adoptive parents included in art. 14(1)(b) of FC by Parliament - Whether adoption order has implication on citizenship of adopted child - Whether adoption of child, whether born legitimate or illegitimate, operates retrospectively to acquire citizenship by operation of law under art. 14(1)(b) read together with s. 1(a) Part II, Second Schedule of FC - Births and Deaths Registration Act 1957, s. 13
CHILDREN AND YOUNG PERSONS: Adoption - Citizenship - Whether adopted child should be registered as citizen of Malaysia - Whether adopted child 'not born a citizen of any country' at time of birth - Whether adopted child's lineage traceable to biological mother - Whether adopted child acquired citizenship of biological mother - Whether adopted child Malaysian citizen by operation of law under art. 14(1)(b) read together with s. 1(e), Part II, Second Schedule of Federal Constitution ('FC') and s. 17, Part III Second Schedule of FC - Births and Deaths Registration Act 1957, s. 13
CONSTITUTIONAL LAW: Citizenship - Operation of law, by - Adoption of child - Birth certificate issued as 'non-citizen' - Whether adopted child should be registered as citizen of Malaysia - Acquisition of citizenship by operation of law - Article 14(1)(b) read together with Part II of Second Schedule of Federal Constitution - Whether origin of paternal and maternal side of child must be ascertained - Whether child must be born in Federation to biological parents one of whom, at time of birth, either citizen or permanently resident in Federation - Whether adoptive parents included in art. 14(1)(b) of FC by Parliament - Whether adoption order has implication on citizenship of adopted child - Whether adoption of child, whether born legitimate or illegitimate, operates retrospectively to acquire citizenship by operation of law under art. 14(1)(b) read together with s. 1(a) Part II, Second Schedule of FC - Births and Deaths Registration Act 1957, s. 13
“We now offer a number of observations. First, these cases demonstrate that whilst the application of the maxim ex turpi causa non oritur actio means that public policy would defeat any claim which is premised on illegality, a balance must still be drawn based on the specific facts and circumstances of each case.
Secondly, the application of the said maxim to cases of tortious liability is very limited. We are not aware, and neither have we been referred to any case authorities in our jurisdiction which clearly hold that the non-compliance with the said provisions under the RTA (Road Transport Act 1987) are a form of illegality in respect of which public policy would deny the claimant (wrongdoer vis-à-vis the RTA) from pursuing his right to claim compensation for the tortious liability of the negligent party.
Thirdly, there is no denying that, as mentioned earlier, case law authorities are unequivocal in affirming the position that the absence of driving licence, road tax and insurance does not make a motorist negligent.” - per Mohd Nazlan Ghazali JCA in Ahmad Zulfendi Anuar v. Mohd Shahril Abdul Rahman  9 CLJ 307
Legal Network Series
CLJ 2022 Volume 10 (Part 5)
An employer is held vicariously liable for an intentional wrong committed by its employee, despite no fault could be attributed to the employer, in a situation where it could be established that the wrongful act of the employee is closely connected to the scope of his employment and, it is shown that the employee did not act independently 'on a frolic of his own'; and where the risk is created by the nature of the employer's business.
TORT: Vicarious liability - Principles and doctrine - Employee of security company shot randomly at public causing injuries - Whether intentional wrong by employee - Whether employer vicariously liable for damages - Scope of vicarious liability - Whether wrong committed in course of employment - Close connection test - Whether wrongful act closely connected with work assigned - Whether employer created risk by providing firearm to employee - Whether vicarious liability established
ROHANA YUSUF PCA
(i) The High Court can only order a sale of any immovable property, pursuant to O. 31 r. 1 of the Rules of Court 2012, when there is a cause or matter relating to any immovable property and it appears necessary or expedient for the purposes of the cause or matter that the immovable property be sold. These elements must be fulfilled before O. 31 r. 1 could be invoked; and (ii) by virtue of the principle of stare decisis, High Court Judges are bound by all judgments of the Court of Appeal and the Federal Court and they must apply the law as stated therein.
LAND LAW | CIVIL PROCEDURE
LAND LAW: Order for sale - Lands - High Court ordered for order for sale of lands by way of private sales or by auction - Proceeds of sales to be distributed according to registered shares - Whether application for order for sale fell or in compliance with O. 31 r. 1 of Rules of Court 2012 - Whether O. 31 r. 1 could be invoked - Whether there was cause or matter relating to any immovable property - Whether necessary or expedient for purposes of cause or matter that immovable property be sold - Whether there was basis or jurisdiction for High Court to order sale of lands under O. 31 r. 1
CIVIL PROCEDURE: Courts - High Court - Doctrine of stare decisis - High Court elected not to follow binding decisions of Court of Appeal - Whether High Court fell into error
KAMALUDIN MD SAID JCA
(i) The defence of innocent carrier has to be examined in light of the doctrine of wilful blindness. A conviction of the accused is rendered safe if the accused has failed to make necessary inquiries and instead turn a blind eye to what is obvious and is proven to have had knowledge of the drugs found in the bag carried by the accused; (ii) with the provision of s. 39B(2A) of the Dangerous Drugs Act 1952, the mandatory death sentence is no longer the only sentence available in court. The court has a discretion to substitute a death sentence with that of life imprisonment.
CRIMINAL LAW | CRIMINAL PROCEDURE
CRIMINAL LAW: Dangerous Drugs Act 1952 - Section 39B(1)(a) - Trafficking in methamphetamines - Appeal against conviction and sentence - Defence of innocent carrier - Doctrine of wilful blindness - Whether accused had knowledge of drugs - Whether conviction safe - Whether death sentence ought to be substituted with life imprisonment - Dangerous Drugs Act 1952, s. 39B(2A)
CRIMINAL PROCEDURE: Appeal - Appeal against conviction and sentence - Trafficking in dangerous drugs - Defence of innocent carrier - Doctrine of wilful blindness - Whether accused had knowledge of drugs - Whether conviction safe - Whether death sentence ought to be substituted with life imprisonment
HADHARIAH SYED ISMAIL JCA
The material difference between sub-items 22(1)(a) and 22(1)(b) of the First Schedule to the Stamp Act 1949 is that the former would apply to bond, covenant or instrument for a definite and certain period of time so that the total amount to be ultimately payable could be ascertained. On the other hand, sub-item 22(1)(b) applies where the bond, covenant or instrument are for the term of life or any other indefinite period.
REVENUE LAW | STATUTORY INTERPRETATION
REVENUE LAW: Stamp duty - Assessment - Appeal against - Letter of offer for credit from bank - Whether letter of offer stated loan instrument had security whatsoever and must be repayable on demand or in single bullet payment - Whether letter of offer qualified for remission of stamp duty under Stamp Duty (Remission) (No. 2) Order 2012 - Stamp Act 1949, s. 38A(7), First Schedule item 22(1)(a), (b)
STATUTORY INTERPRETATION: Statutes - Taxing statute - Remission of stamp duty - Correct approach to be given - Whether strict interpretation ought to be accorded - Plain, natural and ordinary meaning - Stamp Duty (Remission) (No. 2) Order 2012 - Stamp Act 1949, s. 38A(7), First Schedule item 22(1)(a), (b)
NOORIN BADARUDDIN J
(i) When proceedings are commenced under O. 14 of the Rules of Court 2012, the normal rules for triable issues do not apply to a tax claim because of the provisions of the Income Tax Act 1967; and (ii) The court has no power in tax claim proceedings, to consider any assertion that the assessed tax amount is excessive or incorrectly assessed. For any manner of challenge to the merits, propriety or correctness of the tax assessment, including assertions that the Lembaga Hasil Dalam Negeri did not observe the rules of natural justice or that it acted arbitrarily or in a non-judicial manner, the taxpayer is to raise it before the Special Commissioners of Income Tax.
CIVIL PROCEDURE | REVENUE LAW
CIVIL PROCEDURE: Summary judgment - Application for - Tax claim - Failure to submit tax returns by prescribed statutory deadlines - Amount of RM1,053,972,936.58 - Whether there were triable issues - Whether there were reasons warranting trial to decide on claim - Whether summary judgment ought to be granted - Rules of Court 2012, O. 14
REVENUE LAW: Income tax - Summary judgment - Failure to submit tax returns by prescribed statutory deadlines - Amount of RM1,053,972,936.58 - Whether claim caught by limitation - Whether material facts pleaded to support statutory cause of action to recover tax amount - Whether assessments issued without complying 'jurisdictional threshold requirements' in Income Tax Act 1967 - Whether notice of assessment served on defendant at his then-current residential address - Whether defendant a non-resident individual - Whether defendant no longer Malaysian tax resident - Whether summary judgment ought to be granted
KENNETH ST JAMES JC
It is inconsistent with the policy of the Housing Development (Control and Licensing) Act 1966 for the developer, when sued by purchasers for liquidated damages under the sale and purchase agreement, to join the building contractor as a third party, to have the claims and disputes under the building contract jointly tried together with the purchasers' claim for liquidated damages.
CIVIL PROCEDURE: Joinder of parties - Joint trial - Purchasers of housing development commenced suit against developer - Claim for rescission and other reliefs under sale and purchase agreements - Developer served third party notice against main building contractor for failure to complete project within prescribed time - Whether convenient to join main suit and third party action - Whether consistent with policy of Housing Development (Control and Licensing) Act 1966 - Whether just, expeditious and economical - Rules of Court 2012, O. 16 & 34
TEE GEOK HOCK JC
Rules 27 and 28 of the Advocates (Practice and Etiquette) Rules 1988 ('Rules') are inapplicable in a situation where an advocate is a litigant and sues in person. The Rules are not meant to stifle the legal right of an advocate who is a party to act in person or through his law firm or to bar the advocate from being a witness when he is a party in the suit. The right to sue and defend in person is not only expressly provided in O. 5 r. 6 of the Rules of Court 2012, but also the advocate's constitutional right to appear for and on behalf of himself.
LEGAL PROFESSION: Representation - Advocate - Right of advocate to represent himself and act as witness - Whether there would be infringement of Advocate (Practice and Etiquette) Rules 1988 - Right to sue and defend in person - Whether expressly provided in O. 5 r. 6 of Rules of Court 2012 - Whether rr. 27 and 28 of Advocate (Practice and Etiquette) Rules 1988 applicable - Whether could preclude advocate from acting for himself and/or his law firm in suit
LEONARD DAVID SHIM J
If a plaintiff is able to prove that it suffered damages as a result of a particular wrongdoing, in this case, the wrongful entry of a caveat over a piece of land, and that the said damages are not remote pursuant to the normal rules in tortious claims, the sums claimed ought to be awarded against the defendant.
TORT: Damages - Assessment - Wrongful entry of caveat over land - Whether caveat entered bona fide with intention of protecting registrable interest - Whether there were damages caused following entering of caveat - Whether claims speculative - National Land Code, s. 329(1)
MOHD ARIEF EMRAN ARIFIN JC
(i) A judicial review application is found defective if the proper party is not cited; (ii) Where the applicant had fully admitted to the liability of an insurance claim and unconditionally complied with the adjudication and award by the Ombudsman, consequently the proceedings are academic and of no utility to the applicant; and (iii) It is not the task of the court to scrutinise every piece of evidence adduced before the Ombudsman and to make a finding of fact as the task of fact finding falls within the jurisdiction of the Ombudsman. When the Ombudsman's findings are found to be rational and cogent, appellate interference is not warranted
ADMINISTRATIVE LAW: Judicial review - Application for - Application to quash adjudication and award allowing claim on insurance policy - Preliminary objections raised - Whether proper party cited - Whether insurance company fully admitted to liability of death claim - Whether current proceedings academic - Whether insurance company's reliance on general declaration in proposal form to avoid policy unequivocally abolished by para. 10 of sch. 9 of Financial Services Act 2013 - Whether decision of Ombudsman tainted with errors of law - Whether warranted intervention of court
AHMAD KAMAL MD SHAHID J
The requirement for the detention tenure in Henry Gurney School, to be for three years pursuant to s. 75 of the Child Act 2001, is not absolute in light of the provision for a shortening of such period by the Director-General of Prisons.
CRIMINAL LAW | STATUTORY INTERPRETATION
CRIMINAL LAW: Offence - Rape - Appeal against sentence - Accused and victim minors engaging in consensual sex - Victim became pregnant and abandoned infant - Accused sentenced to three years in Henry Gurney School - Whether sentence meted out excessive - Penal Code, s. 376(1)
STATUTORY INTERPRETATION: Statutes - Child Act 2001 - Section 75 - Detention - Accused and victim minors engaging in consensual sex - Victim became pregnant and abandoned infant - Accused sentenced to three years in Henry Gurney School - Whether requirement of detention for tenure of three years absolute
CHRISTOPHER CHIN SOO YIN J
CLJ 2022 Volume 10 (Part 6)
An application for judicial review may lie against any decision wherein one is adversely affected by the decision, action or omission in relation to the exercise of the public duty or function. The remedy of an applicant, aggrieved by the decision of the local planning authority, lies in an appeal to the Appeal Board set up under s. 36 of the Town and Country Planning Act 1976. The decision of the local planning authority itself is not amenable to judicial review for it is not a final decision binding on all the parties.
ADMINISTRATIVE LAW | CONTRACT
ADMINISTRATIVE LAW: Judicial review - State authority - Local planning authority - 'Decision' pertaining to application for planning approval - Whether final decision - Whether binding on all parties - Whether exhausted appeal to Appeal Board - Whether amenable to judicial review - Town and Country Planning Act 1976, s. 36(13)
CONTRACT: Agreement - Sale and purchase agreement - Planning approval for proposed development and relocation of Selangor Turf Club Equestrian and Sports Centre - Approval granted subject to conditions - Whether applicant informed of conditions - Whether applicant complied with requirement to resubmit amended concept plan to local planning authority - Whether respondents could not have legitimate expectation upon expiry of approval - Town and Country Planning Act 1976, s. 21(5)
LEE SWEE SENG JCA
Threatening a would-be witness in the court of law should not be taken lightly. Whether the witness is actually deterred or influenced by the statement made by the contemnor is of no consequence; it suffices that the statement is inherently likely to interfere with the administration of justice.
CRIMINAL PROCEDURE: Contempt of court - Appeal - Appeal against conviction and sentence - Accused lodged police report against witness in 1MDB trial and held press conference to give overview of police report - Accused found to be in contempt and convicted for offence and sentenced to one-month imprisonment - Whether police report absolute privilege document - Whether contempt of court proceeding could be initiated against accused based on police report - Whether prosecution particularised specific words that allegedly intimidated witness - Whether witness deterred or influenced by accused's statement - Whether mens rea proven - Whether conviction and sentence safe - Rules of Court 2012, O. 52
KAMALUDIN MD SAID JCA
(Criminal Appeal No: W-05-241-07-2021)
An apology is not an automatic 'get out of jail card' for a contemnor. It must be unreserved and made with genuine remorse. The contemnor must also have admitted to his wrongdoing, pleaded guilty to the contempt and purged his contempt before tendering his unreserved apology.
CIVIL PROCEDURE: Committal proceedings - Contempt of court - Breach of Anton Pillar order ('AP order') - Applicant obtained AP order against proposed contemnors in suit based on conflict of interests, breach of fiduciary duties, breach of trust, misuse of confidential information, knowing assistance and conspiracy of unlawful means - Proposed contemnors injuncted from hiding, concealing, amending, changing, damaging, manipulating, disturbing and/or destroying any or all of documents and/or information involved - Whether proposed contemnors in breach of AP order by hiding and/or concealing evidence and by hiding, destroying and/or deleting emails, documents and evidence - Whether proposed contemnors in contempt of court order - Rules of Court 2012, O. 52 r. 4
FAIZAH JAMALUDIN J
A proposed intervener in applying to intervene and be added as a party in a civil suit under O. 15 r. 6(2)(b) of the Rules of Court 2012 will be barred from intervening if it fails to raise anything to displace the general principle that it is against public policy, and oppressive to the party, to re-agitate disputes which have been litigated to a conclusion. An application to intervene can be thwarted by res judicata or issue estoppel concerning limitation, and if it is found that the proposed intervener's legal interest is not affected.
CIVIL PROCEDURE: Parties - Intervention - Application to intervene as party in suit - Whether application thwarted by res judicata - Privity of interest between parties - Whether proposed intervener had legal interest - Issue of limitation - Whether valid reasons arose to bar proposed intervener from intervening - Rules of Court 2012, O. 15 r. 6(2), (3)
AMARJEET SINGH SERJIT SINGH J
Simply because a product requires additional integers does not mean that it does not infringe a utility innovation. That the product contains all five essential integers of a utility innovation is what matters. The alleged difference in the usage of the utility innovation and the infringing product is irrelevant for determining infringement.
CIVIL PROCEDURE | INTELLECTUAL PROPERTY
CIVIL PROCEDURE: Injunction - Application for - Allegation that anti-theft nut distributed and supplied by defendant infringed plaintiff's nut - Application to restrain defendant from infringing, manufacturing, importing, supplying, distributing, offering to sell, selling, using or stocking item similar to plaintiff's utility innovation
INTELLECTUAL PROPERTY: Infringement - Invalidation of patent - Allegation that anti-theft nut distributed and supplied by defendant infringed plaintiff's nut - Whether utility innovation lacked novelty - Whether industrially applicable - Whether lacked sufficient disclosure
AZLAN SULAIMAN JC
The foundation of the right to restitution remedy is grounded on the law of unjust enrichment, which falls outside the domains of contract and tort. Unjust enrichment need not be pleaded so long as the cause of action could be made out from the facts pleaded by the parties.
CONTRACT: Agreement - Loan agreement - Claim by lender for recovery of sums lent as friendly loan to husband and wife - Loan disbursed into borrower's wife bank account - Whether there was friendly loan - Whether there was unjust enrichment - Whether lender entitled to judgment on amount claimed - Whether borrower's wife could be said to have entered into loan agreement with lender - Whether there was privity of contract - Whether borrower's wife accountable under law to refund money to lender by reason of restitution - Contracts Act 1950, ss. 66 & 71
LIZA CHAN SOW KENG JC
The inference to be drawn from the provisions of s. 3 of the Dangerous Drugs (Special Preventive Measures) Act 1985 ('DDSPMA') is clear. Parliament acknowledges the drastic power given to restrict the liberty of a subject without having to bring him to court and has put in place safeguards by expressly providing that this power or arrest is placed in the hands of a police officer with the rank of at least that of an inspector, and authority for each incremental period of detention having to be sought from a correspondingly higher authority up till that of the Minister. Each sequential progression must be scrupulously complied with by those entrusted with such power and the exercise of this power within the framework of the preventive detention laws housed within the DDSPMA is objectively justiciable. In the instant case, whilst the element of having associated or is being involved in trafficking in dangerous drugs activities together with a substantial body of persons was present for the applicant's further detention, this element for purposes of his arrest, as well as his subsequent detention for more than 24 hours, followed by a further 48 hours was noticeably absent. It followed that his arrest and his subsequent detention was unlawful.
CRIMINAL PROCEDURE | PREVENTIVE DETENTION
CRIMINAL PROCEDURE: Habeas corpus - Application for - Whether applicant arrested and detained by reason of him having associated or being involved in trafficking in dangerous drugs activities together with substantial body of persons - Whether there was evidence laid before court - Structure of legal detentive power - Whether elements of purpose of arrest and subsequent detention noticeably absent - Whether detention lawful - Whether writ of habeas corpus ought to be issued in applicant's favour - Dangerous Drugs (Special Preventive Measures) Act 1985, ss. 3(1), 3(2)(a) and (b)
PREVENTIVE DETENTION: Detention order - Habeas corpus - Application for - Whether applicant arrested and detained by reason of him having associated or being involved in trafficking in dangerous drugs activities together with substantial body of persons - Whether there was evidence laid before court - Structure of legal detentive power - Whether elements of purpose of arrest and subsequent detention noticeably absent - Whether detention lawful - Whether writ of habeas corpus ought to be issued in applicant's favour - Dangerous Drugs (Special Preventive Measures) Act 1985, ss. 3(1), 3(2) (a) and (b)
SU TIANG JOO JC