New This Week

• Case(s) of the Week

  1. TENAGA NASIONAL BHD v. MAJLIS DAERAH SEGAMAT [2022] 2 CLJ 497

  2. CHE MAN CHE MUD v. MAJLIS PEGUAM MALAYSIA [2022] 2 CLJ 585

• Appeal Updates

  1. Appeal Updates

• Latest Cases

  1. Legal Network Series

  2. CLJ 2022 Volume 2 (Part 3)

• 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

TENAGA NASIONAL BHD v. MAJLIS DAERAH SEGAMAT [2022] 2 CLJ 497
FEDERAL COURT, PUTRAJAYA
AZAHAR MOHAMED CJ (MALAYA); MOHD ZAWAWI SALLEH FCJ; ABDUL RAHMAN SEBLI FCJ
[CIVIL APPEAL NO: 01(i)-30-10-2020(J)]
04 JANUARY 2022

LOCAL GOVERNMENT: Rates - Assessment - Imposition of 'improved value' rate on holdings - Whether ultra vires s. 129 of Local Government Act 1976 ('LGA') - Whether electrical structures/machineries could be included in valuation - Whether 'machineries' part of building - Whether fell under definition of 'land' or 'building' under s. 2 of LGA - Whether became part of land or building - Whether 'machineries' movable and detachable and stand on its own - Whether electrical structures/machineries rateable

WORDS & PHRASES: 'building' - Local Government Act 1976, s. 2 - Whether electrical structures/machineries included in definition - Whether word 'structure' in definition of 'building' part of specific descriptions or things comprising 'building' - Whether 'noscitur a sociis' rule applicable - Whether word 'structure' to be read in context of giving 'support' or 'foundation' to building - Whether electrical structures/machineries part of building

WORDS & PHRASES: 'land' - Local Government Act 1976, s. 2 - Whether 'machineries' fell within definition of 'land' - Whether movable and detachable - Whether permanently fastened - Whether rateable

CHE MAN CHE MUD v. MAJLIS PEGUAM MALAYSIA [2022] 2 CLJ 585
HIGH COURT MALAYA, KUALA LUMPUR
NOORIN BADARUDDIN J
[ORIGINATING SUMMONS NO: WA-17D-25-11-2020]
07 NOVEMBER 2021

LEGAL PROFESSION: Roll of Advocates and Solicitors - Restoration on Roll - Application for - Fair and reasonable test - Whether applicant truly penitent and made restitution - Whether fit and proper person to resume practice at Bar - Legal Profession Act 1976, s. 107

APPEAL UPDATES

1. PP v. Saifulzainizam Mat Nasir [2021] 1 LNS 1074 (CA) overruling the High Court case of PP v. Saifulzainizam Mat Nasir [Criminal Trial No. 45A-2-01/2017]

2. Tan Boon Ee & Yang Lain lwn. PP [2021] 1 LNS 1084 (CA) menolak kes Mahkamah Tinggi PP lwn. The Gold Label Sdn Bhd & Yang Lain [Perbicaraan Jenayah No: 44-210/2017]

LATEST CASES

Legal Network Series

CLJ 2022 Volume 2 (Part 3)

The statutory power of Tenaga Nasional Berhad (TNB) to disconnect electricity to a customer's premises pursuant to the discovery of meter tampering, which it may resort to under s. 38(1) of the Electricity Supply Act 1990 (ESA), abates once it remedies and rectifies the tampering or the impugned meter. TNB cannot thereafter disconnect supply on the ground that an offence under s. 37(1) of ESA had been committed, as its power to disconnect can only remain extant and exercisable in the presence of a continuing offence, and not otherwise. Whether it be the old or the amended s. 38(1) of ESA, the section does not allow for future disconnection of electricity in circumstances where the offence under s. 37(1) was in the past and was no longer being continued by the customer. To that extent, any loss of revenue suffered by TNB in the circumstance may only be recovered by way of a civil action under s. 38(5) of ESA.
Tenaga Nasional Bhd v. Chew Thai Kay & Anor [2022] 2 CLJ 333 [FC]

• SUBJECT
• CORAM
• COUNSEL

The owner of a bank account who is a mere recipient of monies alleged to be the subject matter of an offence under s. 4(1) of the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001, or the proceeds of an unlawful activity, without more, cannot be said to have participated in or abetted the commission of such unlawful activity. Such bare recipient may only be a third party to the impugned transactions, such that the defences under s. 61 of the Act are available to him to defeat the forfeiture proceedings.
Badan Perhubungan UMNO Negeri Pahang v. PP & Other Appeals [2022] 2 CLJ 364 [CA]

• SUBJECT
• CORAM
• COUNSEL

The trial judge in a drug trafficking case must not breach the rule against double presumptions, and in any case, in calling for the accused's defence, must indicate whether the accused is called to enter his defence on actual or presumed trafficking. Omitting to undertake this exercise is prejudicial to the accused, as the standards imposed by law on the defence in respect of actual and presumed trafficking is different. It follows that a conviction meted out in the circumstances may not be safe as would entitle the accused to be acquitted and discharged instead.
Imran Zakaria v. PP [2022] 2 CLJ 396 [CA]

• SUBJECT
• CORAM
• COUNSEL

The powers of a liquidator are set out in the Twelfth Schedule and s. 486 of the Companies Act 2016. After a company has been wound up, only the liquidator has the power to bring or defend any legal proceeding in the name and on behalf of the company.
Ganda Selat Sdn Bhd (In Liquidation) v. MPDT Capital Bhd [2022] 2 CLJ 412 [HC]

• SUBJECT
• CORAM
• COUNSEL

A political party cannot sue an individual for defamation. Likewise, the State Government of Sarawak herein cannot by its own name sue an individual member of the State Legislature for defamation. The issue regarding the system of government with its concomitant issue of separation of powers between the Cabinet and the Legislature aside, a question arises, if defamation is proven, whether the defendant, being part and a member of the State Legislature, and therefore part of the Government of Sarawak, is also defaming his own self. At the very least, to obtain the necessary locus standi, the Majlis Mesyuarat Kerajaan Negeri should have been named as the plaintiff, or co-plaintiff.
Government Of State Of Sarawak v. Dato’ Sri Wong Soon Koh (No 3) [2022] 2 CLJ 433 [HC]

• SUBJECT
• CORAM
• COUNSEL

In a charge of dangerous driving under s. 41(1) of the Road Transport Act 1987, where the defence has countered the prosecution's version of how the accident had come about with his own version, it falls on the learned Magistrate to evaluate the defence version, then juxtapose it with the narrative of the prosecution witnesses and decide whether the defence has indeed raised a reasonable doubt to the prosecution case; it is not sufficient for the trier of facts to merely conclude that he did not believe the accused's version, or that it was not convincing or that it could not be the truth.
S Abirami Selvam v. PP [2022] 2 CLJ 460 [HC]

• SUBJECT
• CORAM
• COUNSEL

Asas permohonan penanggung insurans untuk saman pemula bawah ss. 91(1)(b), 96(1) dan 96(3) Akta Pengangkutan Jalan 1987 dibaca bersama-sama s. 41 Akta Relief Spesifik 1950 untuk mendapatkan perintah deklarasi bahawa sijil insurans/polisi yang melindungi motosikal yang terlibat dalam kemalangan yang menyebabkan kematian anak pihak ketiga tidak boleh dikuatkuasakan kerana kononnya motosikal tersebut telah hilang dan dicuri. Tetapi, dengan ketiadaan bukti prima facie tentang kecurian tersebut, dan hanya bersandarkan andaian penanggung insurans semata-mata, permohonan perintah deklarasi tidak bermerit, tidak munasabah, tiada justifikasi dan bersifat pramatang.
Zurich General Insurance Malaysia Bhd lwn. Norfairuzliza Md Johari & Yang Lain [2022] 2 CLJ 473 [HC]

• SUBJECT
• CORAM
• COUNSEL

ARTICLES

LNS Article(s)

1. ADOLESCENTS' SELF-CONSENT IN SEXUAL AND REPRODUCTIVE HEALTH RIGHTS AND CHOICES* ^{[Read excerpt]}
   by Dr Ambikai S Thuraisingam^[i] Dr Baxter Ma Sian Tong^[ii] [2022] 1 LNS(A) xvi

[2022] 1 LNS(A) xvi



MALAYSIA

---

ADOLESCENTS' SELF-CONSENT IN SEXUAL AND REPRODUCTIVE HEALTH RIGHTS AND CHOICES*

by
Dr Ambikai S Thuraisingam^[i]
Dr Baxter Ma Sian Tong^[ii]

ABSTRACT

This is a conceptual paper encompassing the legal framework used to govern self-consent for minor adolescents aged 16–17 years old to medical interventions related to sexual reproductive health rights ('SRH'). A correlation is also made with the effects of the nature of this legal framework on the Adolescents' Self-Consent in Sexual and Reproductive Health Rights ('ASRHR'). Local contexts are emphasized in this study, and the United Kingdom ('the UK') is chosen for consideration in implementing similar minor adolescent medical self-consent policies and laws in Malaysia. Malaysia, a Commonwealth member state, shares a parallel legal system with common law tradition as the UK. In addition, the UK, like Malaysia, represents a multicultural nation with heterogeneous religious beliefs. Although there are inherent socio-economic differences, adolescent SRH issues are evidently global and not sporadic or specific to a region. There is a substantial majority of health practitioners in Malaysia that receive postgraduate training and qualifications in the UK, while many medical guidelines also originate from the UK medical boards, which make it practical and pragmatic to adopt the UK medico-legal practices.

. . .

*Any remaining errors or omissions rest solely with the author(s) of this paper.

[i] Corresponding author, Taylor's University. E-mail: ambikai.sthuraisingam@ taylors.edu.my.

[ii] Sarawak State Health Department.

---

Please subscribe to cljlaw or login for the full article.

2. FREEDOM OF THE PRESS: RIGHTS AND LIBERTIES ^{[Read excerpt]}
   by Lee Yee Ling^[i] Wong How Yee^[ii] Nabeel Mahdi Althabawi^[iii] [2022] 1 LNS(A) xvii

[2022] 1 LNS(A) xvii



MALAYSIA

---

FREEDOM OF THE PRESS: RIGHTS AND LIBERTIES

by
Lee Yee Ling^[i]
Wong How Yee^[ii]
Nabeel Mahdi Althabawi^[iii]

ABSTRACT

The favourable environment for journalists and press has shifted since the transfer of power in 2020 and deteriorated after the global pandemic. The issue further heats up when there are limited access to Parliament proceedings and several high profile cases which involve legal action against those journalists and media for their critical reporting. In Malaysia, the public is free to express their opinions and views under article 10 of the Federal Constitution. However, there are some restrictions imposed by the Parliament to protect public and national interests. This paper addresses the freedom of the press in light of the jurisprudential discussion on rights and liberties. In Kantian view, one violates no duty in performing their rights to freedom of the press, and the others are under an obligation not to interfere with it. Hohfeldian analysis of liberty, on the other hand, refers to the absence of a duty to abstain from the action. Liberty here refers to the press having the liberty to freedom of expression when they owe no duty to the public. The study is qualitative research that adopts a theoretical legal approach, comparing jurists' perspectives and applying them to press freedom issues in countries such as Norway, the United States, Singapore, and Afghanistan. The paper suggests that the role of the press must not be abused as a tool for anyone's personal interest as society has the right to seek the truth. Hence, the press shall be granted freedom subject to clearly defined restrictions to prevent abusive power from interfering with legitimate exercise of such freedom.

. . .

[i] [ii] Third year law students, Faculty of Law, National University of Malaysia (UKM).

[iii] Senior lecturer, Faculty of Law, National University of Malaysia (UKM).

---

Please subscribe to cljlaw or login for the full article.

3. VACCINE MANDATES AND 'LAWFUL AND REASONABLE' DIRECTIONS – WHAT CAN AN EMPLOYEE BE MADE TO DO?^{+ [Read excerpt]}
   by John Wilson and Kieran Pender* [2022] 1 LNS(A) xviii

[2022] 1 LNS(A) xviii



AUSTRALIA

---

VACCINE MANDATES AND 'LAWFUL AND REASONABLE' DIRECTIONS –
WHAT CAN AN EMPLOYEE BE MADE TO DO?⁺

by
John Wilson and Kieran Pender*

Controversy still lingers over the question of whether it is lawful and reasonable for an employer to require their employees to be vaccinated against Covid-19. John Wilson and Kieran Pender explore this question in light of a Fair Work Commission decision in December 2021.

"Whether a particular direction is reasonable is not to be determined in a vacuum, it requires consideration of all the circumstances, including the nature of the particular employment, the established usages affecting the employment, the common practices that exist and the general provisions of any instrument governing the relationship... The assessment of reasonableness and proportionality is essentially one of fact and balance and needs to be assessed on a case-by-case basis."

Fair Work Commission Full Bench in CFMMEU v. Mt Arthur Coal Pty Ltd^[1]

In recent months, there has been much discussion about whether an employer can require an employee to be vaccinated against Covid-19. This question turns on whether such a direction is lawful and reasonable. In our view, in the ordinary case of an employee who attends a physical workplace and interacts with others, absent a valid medical reason, such a direction will be both lawful and reasonable.

Nonetheless, controversy lingers around this question — particularly following the equivocal decision of a five-member full bench of the Fair Work Commission in Mt Arthur in December 2021. It is therefore helpful to unpack the law in this area, with a primary focus on Mt Arthur. In doing so, we can consider the broader principles that provide guidance and ultimately explore a wider question: what can an employer require an employee to do?

. . .

+Published with kind permission of the Law Society of the Australian Capital Territory. See Ethos No. 262 Summer 2021.

*John Wilson is the managing legal director at Bradley Allen Love Lawyers. Kieran Pender is an honorary lecturer at the ANU College of Law and a consultant at BAL. The views expressed here are their own.

---

Please subscribe to cljlaw or login for the full article.

LEGISLATION HIGHLIGHTS

Principal Acts

Amending Acts

PU(A)

PU(B)

Legislation Alert