New This Week

• Case(s) of the Week

  1. BLUDREAM CITY DEVELOPMENT SDN BHD v. KONG THYE & ORS AND OTHER APPEALS [2022] 2 CLJ 829

  2. DATO' KANAGALINGAM VELUPPILLAI v. MAJLIS PEGUAM MALAYSIA [2022] 2 CLJ 858

• Appeal Updates

  1. Appeal Updates

• Latest Cases

  1. Legal Network Series

  2. CLJ 2022 Volume 2 (Part 5)

• 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

BLUDREAM CITY DEVELOPMENT SDN BHD v. KONG THYE & ORS AND OTHER APPEALS [2022] 2 CLJ 829
COURT OF APPEAL, PUTRAJAYA
HANIPAH FARIKULLAH JCA; LEE SWEE SENG JCA; AHMAD NASFY YASIN JCA
[CIVIL APPEAL NOS: B-01(A)-55-01-2020, B-01(A)-56-01-2020,
B-01(A)-57-01-2020, B-01(A)-62-01-2020, B-01(A)-63-01-2020 & B-01(A)-64-01-2020]
24 JANUARY 2022

ADMINISTRATIVE LAW: Judicial review - Judicial review challenging decision of Minister of Urban Wellbeing, Housing and Local Government ('Minister') - Appeal against - Minister granted extension of time of 17 months, from 42 months to 59 months, for developer to complete housing development - Whether purchasers were parties adversely affected - Whether Minister's decision valid in light of Ang Ming Lee & Ors v. Menteri Kesejahteraan Bandar, Perumahan dan Kerajaan Tempatan & Anor And Other Appeals - Whether Minister's decision tainted with procedural impropriety and irrationality - Whether there was breach of natural justice when purchasers were not heard - Whether court ought to interfere with Minister's decision - Whether Minister's decision ought to be set aside - Housing Development (Control and Licensing) Act 1966, s. 24(2) - Housing Development (Control and Licensing) Regulations 1989, regs. 11(3) & 12

DATO' KANAGALINGAM VELUPPILLAI v. MAJLIS PEGUAM MALAYSIA [2022] 2 CLJ 858
COURT OF APPEAL, PUTRAJAYA
LEE SWEE SENG JCA; LEE HENG CHEONG JCA; HASHIM HAMZAH JCA
[CIVIL APPEAL NO: W-02(A)-1300-06-2018]
27 DECEMBER 2021

LEGAL PROFESSION: Roll of Advocates and Solicitors - Struck off - Appeal against decision of Disciplinary Board ('DB') - Misconduct of solicitor - Conduct unbefitting of advocate and solicitor which brought legal profession to disrepute - Interfering with and influencing judicial appointments - Admissibility of video clip of conversation and event in home of solicitor when original recording not available - Whether DB found for misconduct not based on original complaint - Whether CD video recording admissible as direct oral evidence by maker of original - Whether admissible as secondary evidence - Whether CD authentic or tampered with - Whether solicitor rebutted evidence of what transpired and recorded in CD - Whether order of DB defective for non-compliance with s. 103D(1) of Legal Profession Act 1976 - Whether solicitor denied right to be heard - Whether there was biasness - Whether court ought to interfere with punishment meted out by DB - Evidence Act 1950, ss. 60, 63, 65, 90A & 90C - Legal Profession (Practice and Etiquette) Rules 1978, r. 31 - Legal Profession Act 1976, ss. 94(3)(o) & 103

LEGAL PROFESSION: Professional discipline - Misconduct - Conduct unbefitting of advocate and solicitor which brought legal profession to disrepute - Interfering with and influencing judicial appointments - Admissibility of video clip of conversation and event in home of solicitor when original recording not available - Whether Disciplinary Board ('DB') found for misconduct not based on original complaint - Whether CD video recording admissible as direct oral evidence by maker of original - Whether admissible as secondary evidence - Whether CD authentic or tampered with - Whether solicitor rebutted evidence of what transpired and recorded in CD - Whether order of DB defective for non-compliance with s. 103D(1) of Legal Profession Act 1976 - Whether solicitor denied right to be heard - Whether there was biasness - Decision of DB for solicitor to be struck off Roll of Advocates and Solicitors - Whether court ought to interfere with punishment meted out by DB - Evidence Act 1950, ss. 60, 63, 65, 90A & 90C - Legal Profession (Practice and Etiquette) Rules 1978, r. 31 - Legal Profession Act 1976, ss. 94(3)(o) & 103

APPEAL UPDATES

1. Abdul Rahman Mohd v. PP [2021] 1 LNS 804 (CA) affirming the High Court case of PP v. Abdul Rahman Mohd [Case No: WA-45A-17-04-2018]

2. Chia Siew Hock v. Chia Seow Gim & Anor [2021] 1 LNS 894 (CA) affirming the High Court case of Chia Siew Hock v. Chia Seow Gim & Anor [Civil Suit No. PA-22NCVC-125-06/2017]

LATEST CASES

Legal Network Series

CLJ 2022 Volume 2 (Part 5)

In determining an infringement of trade mark, other than the ocular examination, the likelihood of confusion from amongst the public must be given equal weightage. In comparing marks, the proper course is for the court to look at the combination of the features as a whole vis-a-vis the disclaimers, if any; and the arrangement and insertion of the essential features in the impugned mark must be such as to make its whole look so similar to the plaintiff's registered mark as would entail confusion and/or deception. As for the disclaimed words, the court is at liberty to consider them in juxtaposition or in combination with the essential features; nonetheless, in determining the applicable test for the likelihood of confusion and/or deception thereof, it is pertinent to look at the nature and legal position of essential features; this includes looking into what are the 'essential' features of the registered trade mark and what actually constitutes 'essential features'.
Ortus Expert White Sdn Bhd v. Nor Yanni Adom & Anor [2022] 2 CLJ 661 [FC]

• SUBJECT
• CORAM
• COUNSEL

It is clear, upon a true construction of O. 52 r. 2B of the Rules of Court 2012, that: (i) prior notice to show cause need not be given to a proposed contemnor before the filing of an ex parte leave application under O. 52 r. 3; and (ii) the notice to show cause referred to in O. 52 r. 2B means the documents referred to in O. 52 r. 4(3).
Tan Poh Lee v. Tan Boon Thien [2022] 2 CLJ 719 [FC]

• SUBJECT
• CORAM
• COUNSEL

Any amendment or adjustment made to any pension legislation must not result in any 'less favourable' situation for pensioners, lest it runs the risk of contravening art. 147 of the Federal Constitution (FC) and renders both the amended and amending provisions null and void. The amendments to ss. 3 and 6 of the Pensions Adjustment Act 1980 as made by ss. 3 and 7 of the Pensions Adjustment (Amendment) Act 2013 herein by substituting an adjustment based on a salary revision for Government employees with a standard two per cent annual increment to the pension payable offends art. 147 of the FC and the constitutional guarantee and protection provided therein. It is to be noted that for art. 147 to be contravened, it is not necessary that the pensioner must suffer actual loss or damage. The existence of a risk that a less favourable situation might arise and the mere possibility that it could arise, as happened here, suffices in establishing that a less favourable situation has indeed already existed and come about.
Aminah Ahmad v. The Government Of Malaysia & Anor [2022] 2 CLJ 726 [CA]

• SUBJECT
• CORAM
• COUNSEL

When it is established that titles to lands have been deposited by the proprietor to provide security for loans, even if it is for the purpose of a third party, the bank, as the entity that is entitled to receive security, is clearly entitled to apply for the entry of a lienholder's caveat on the lands in question. The act of depositing the titles in relation to a loan triggers the operation of ss. 281(1) and 330(1) of the National Land Code.
Life Paradise Sdn Bhd v. Export-Import Bank Of Malaysia Bhd & Anor And Another Appeal [2022] 2 CLJ 745 [CA]

• SUBJECT
• CORAM
• COUNSEL

The applicant director and shareholder of company sought leave to bring an action in the name of the company against a vendor company, who, having received full purchase price of a property from the company, had refused to transfer the property to the company. In such an instance, the applicant ought to be allowed order in terms for having acted in the best interest of the company and in the absence of any collateral purpose intended by her action.
Tai May Chean v. United Eastern Resources Sdn Bhd & Anor [2022] 2 CLJ 757 [CA]

• SUBJECT
• CORAM
• COUNSEL

Walaupun pihak berkuasa yang meluluskan pelan mempunyai bidang kuasa bawah s. 22 Akta Perancangan Bandar dan Desa 1976, mahkamah boleh meneliti sama ada bidang kuasa tersebut dilaksanakan bertepatan dengan undang-undang pentadbiran awam. Mahkamah perlu mengambil perhatian bahawa semakan kehakiman bukan dibuat untuk mengganggu keputusan yang dibuat oleh mana-mana pihak berkuasa tetapi untuk campur tangan apabila didapati bahawa terdapat ketidaksahan, ketidakpatuhan prosedur atau keputusan yang tidak munasabah atau setimpal.
Chamang Glades Sdn Bhd lwn. Majlis Perbandaran Bentong & Satu Lagi [2022] 2 CLJ 793 [HC]

• SUBJECT
• CORAM
• COUNSEL

A motor vehicle insurance is meant to protect its owner from any claim that arises from road traffic accident, but such claims must be made in compliance with the laws. Where the claim is tainted by fraud, the insurer, whose legal interest is in jeopardy, ought to be allowed to intervene as such intervention would also work towards avoiding duplicity in relation to the same action.
Tetuan Etiqa General Takaful Bhd v. Prabu Permaloo & Ors [2022] 2 CLJ 814 [HC]

• SUBJECT
• CORAM
• COUNSEL

ARTICLES

LNS Article(s)

1. SENTENCING: THE JUDGE'S ROLE ^{[Read excerpt]}
   by Lord Chief Justice of England and Wales* [2022] 1 LNS(A) xxi

[2022] 1 LNS(A) xxi



UNITED KINGDOM

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SENTENCING: THE JUDGE'S ROLE

by
Lord Chief Justice of England and Wales*

Introduction

1. It is a pleasure to have been asked to give this year's Judicial Institute lecture, the first since Professor David Ormerod succeeded Professor Dame Hazel Genn as co-director with Professor Cheryl Thomas. Both have a wealth of academic and practical experience in judicial matters which will ensure that the Institute remains at the heart of the study of the judiciary.

2. I want to speak about sentencing. Across our Magistrates and Crown Courts thousands of people are sentenced every day for crimes ranging from minor motoring offences or failing to pay for a TV licence to serious violence, sexual offences and homicide. Public and political attention focusses on crimes sentenced in the Crown Court. That is because the Magistrates' Court deals only with summary offences where the penalties provided by Parliament are limited to a fine or very short term of imprisonment, or offences which could be tried or sentenced in the Crown Court – so-called either way offences – but for which the limited sentencing powers of the Magistrates' Court are sufficient. The Crown Court deals with tens of thousands of such either way offences each year as well as the more serious cases which can only be tried on indictment in that court.

. . .

*Speech by Lord Burnett of Maldon, Lord Chief Justice of England and Wales (9 December 2020). Published with kind permission of the Judicial Communications Office, Judiciary of England and Wales (https://www.judiciary.uk/wp-content/uploads/2020/12/LCJ-Sentencing-The-Judges-Role-UCL-speech-9-December-2020-f.pdf).

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2. SCOPE OF DUTY, COUNTERFACTUAL ANALYSIS AND BIRTH DEFECTS: THE CHALLENGING CASE OF KHAN V. MEADOWS* ^{[Read excerpt]}
   by Low Kee Yang^[i]Jordan Chia Ting Xuan^[ii] [2022] 1 LNS(A) xxii

[2022] 1 LNS(A) xxii



SINGAPORE

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SCOPE OF DUTY, COUNTERFACTUAL ANALYSIS AND BIRTH DEFECTS:
THE CHALLENGING CASE OF KHAN V. MEADOWS*

by
Low Kee Yang^[i]
Jordan Chia Ting Xuan^[ii]

The tort of negligence has evolved into a sophisticated and calibrated framework. Even then, aspects of this elaborate structure are constantly being tweaked and, sometimes, challenged. Most recently, in the UKSC decision of Khan v. Meadows, the spotlight is thrown on scope of duty analysis against the challenging backdrop of medical negligence and unwanted birth defects. The judgment of the majority suggests there is more that needs to be considered at the stage of damages, and that the sequential framework of negligence may benefit from some rearrangement.

Introduction

Close to a century after the landmark decision of Donoghue v. Stevenson,^[1] the tort of negligence continues to evolve as modifications and refinements are made to its legal framework. Of late, scope of duty analysis has come to the fore.

Very recently, in Khan v. Meadows^[2] and the associated decision of Manchester Building Society v. Grant Thornton,^[3] the UK Supreme Court (the SC) had the opportunity to provide clarification on the scope of duty as well as on the overall negligence framework. This article focuses on Khan v. Meadows. Khan, a case on medical negligence resulting in the birth of a child with disabilities, is difficult for a few reasons.

. . .

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

[i] Associate Professor of Law, Singapore Management University. E-mail: kylow@smu.edu.sg.

[ii] 2nd year LLB student, Singapore Management University.

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