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Issue #1/2023
29 December 2022
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CASE(S) OF THE WEEK
GOBINATH SINNAYA v. PP & OTHER APPEALS [2023] 1 CLJ 174 The decision of a court in refusing bail is not within the meaning of 'decision' under s. 3 of the Courts of Judicature Act 1964 and is not appealable under s. 50 of the same. A decision that is appealable is only those that have finally disposed of the rights of parties, not any interlocutory judgment or order where the final rights of parties are yet to be disposed of, although the judgment, ruling or order is conclusive or final to the subordinate matter. CRIMINAL PROCEDURE: Bail - Refusal of - Appeal against dismissal of bail application - Preliminary objection raised - Whether decision of court on issue of bail appealable - Whether fell within definition of 'decision' under s. 3 of Courts of Judicature Act 1964 ('CJA') - Whether appealable under s. 50 of CJA CRIMINAL PROCEDURE: Appeal - Competency - Appeal against dismissal of bail application - Whether decision of court on issue of bail appealable - Whether fell within definition of 'decision' under s. 3 of Courts of Judicature Act 1964 - Whether appealable under s. 50 of CJA
GLARET SHIRLEY SINNAPAN v. SIVASANKAR KUNCHIRAMAN & ANOR [2023] 1 CLJ 218 (i) Circumstantial evidence is sufficient to prove adultery since it is impossible to obtain direct evidence of adultery. If, from evidence, there is disposition between the spouse and a third party to have committed adultery and there was opportunity for them to commit it, and the adultery is proven on a balance of probabilities, it can then be established that the spouse had committed adultery with the third party and that their adultery had caused and/or led to the breakdown of the marriage. The third party must therefore take the share of responsibility for the breakdown of the marriage and ought to pay damages to the petitioner spouse; (ii) monies in EPF forms part of matrimonial assets and pursuant to s. 53A of the Employees Provident Fund Act 1991 , the EPF Board after receiving the sealed order of the court is empowered to transfer the sums ordered by court from the husband to the wife. Equality of distribution of matrimonial assets between a husband-and-wife ought to be ordered, including any properties that were purchased during marriage. FAMILY LAW: Divorce - Petition - Breakdown of marriage - Adultery - Standard of proof - Whether on balance of probabilities - Whether circumstantial evidence could be relied on to prove adultery - Whether petitioner wife proved respondent husband committed adultery with third party - Whether led to breakdown of marriage - Whether marriage ought to be dissolved - Whether decree nisi made absolute FAMILY LAW: Divorce - Maintenance - Wife and children - Means and needs of parties - Matrimonial assets - Degree of responsibility to parties for breakdown of marriage - Whether wife and children entitled to maintenance FAMILY LAW: Divorce - Adultery - Third party - Petitioner wife sued third party for breakdown of marriage - Whether circumstantial evidence could be relied on to prove adultery - Proof of third party's text messages to petitioner wife regarding sexual relationship between her and respondent husband - Whether petitioner wife proved on balance of probabilities respondent husband committed adultery with third party - Whether led to breakdown of marriage - Whether third party ought to pay damages to petitioner wife JUDICIAL QUOTES“In comparison to the facts in PP v. Rosmah Mansor [2022] 9 CLJ 83, in that case the first delivery of RM5 million in cash on 20 December 2016 was split into two bags of RM2.5 million each. For the second delivery of RM1.5 million, the monies were put into two knapsacks. In the present case, the prosecution did not produce any sample envelope. No evidence was led to show the size of the envelope used. I simply cannot imagine what envelope in what size could fit the SGD600,000 in cash which was equivalent to around RM1.6 million at the material time. Surprisingly, PW17, the creator of the ledger admitted during cross-examination that the second delivery of RM3 million in cash by way of a luggage was an afterthought. This admission of afterthought by the key prosecution witness ie, PW17 is more than sufficient for me to find that PW17 was with zero credibility. To further support my finding, PW17 on one hand testified that he would record the payments on the same day or the next day of payment, however it has been shown that most of the 'remark' columns in the ledger were left blank. PW15 further agreed that the blank 'remark' columns do not show that the monies were paid to the accused. The blank 'remark' columns give rise to a possible inference as suggested by the defence that the monies could have been distributed among the three of them ie, PW15, PW16 and PW17 as they maintained a luxurious lifestyle. Each of PW15, PW16 and PW17 had one unit of property in Pavilion, PW16 also owned one bungalow house in Putrajaya, one semi-detached house in Cyberjaya, two Range Rovers, expensive motorcycles and tax payment in millions. Without strong evidential support, I simply cannot consciously make a finding that the monies were in fact received by the accused as suggested by the prosecution.” – per Mohd Yazid Mustafa J in PP v. Ahmad Zahid Hamidi [2022] 9 CLJ 713 LATEST CASESLegal Network Series
CLJ 2023 Volume 1 (Part 1) (i) Requests for stay can be made, and granted, provided that the threshold under s. 16 of the Construction Industry Payment and Adjudication Act 2012 ('CIPAA') is satisfied and, in any event, an adjudication decision is not merged into a judgment if an enforcement application is allowed under s. 28 of the CIPAA , since an order obtained pursuant to s. 28 of the CIPAA merely permits the adjudication decision to be enforced as a judgment of the court but is not a judgment in itself; and (ii) the fact that a dispute has been referred to arbitration is not a special circumstance warranting the grant of a stay of the adjudication decision. CIVIL PROCEDURE
CIVIL PROCEDURE: Stay - Stay of enforcement - Appeal against decision of High Court - Developer ordered to make payment of principal adjudicated sum to main contractor in adjudication proceedings - Developer applied for stay of enforcement of adjudication decision pending outcome of arbitration proceedings - Application dismissed by High Court - Whether enforcement ought to be stayed - Whether there were special circumstances justifying granting of stay of adjudication decision - Whether fact that dispute had been referred to arbitration special circumstance warranting grant of stay of adjudication decision - Construction Industry Payment and Adjudication Act 2012, s. 16(1)(a) & (b)
NOR BEE ARIFFIN JCA
In an arbitration proceeding, the court's jurisdiction is limited to identifying prima facie existence of an arbitration agreement. The court should not be allowed to exceed its jurisdiction, having conclusively determined the existence of an arbitration agreement, to proceed to make a factual determination on its enforceability. That matter should be left to be resolved by an arbitral tribunal. ARBITRATION
ARBITRATION: Agreement - Jurisdiction of court - Whether there was arbitration agreement between parties - Whether s. 10 of Arbitration Act 2005 operative against parties - Whether dispute for arbitral tribunal to decide - Whether court's jurisdiction limited to identifying prima facie existence of arbitration agreement - Whether matter to be stayed and referred to arbitration
KAMALUDIN MD SAID JCA
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
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 drug 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
HANIPAH FARIKULLAH JCA
The concept of 'one for all and all for one', that the loss of the original access road having impacted not only the acquired portion of a piece of land, but also the adjoining lots as a one piece of development land, has no application to land acquisition. In such cases, compensation would only be awarded to the affected land and not to the adjoining lands, although the adjoining lands formed a piece of development land. LAND LAW
LAND LAW: Acquisition of land - Compensation - Acquisition of part of land - Acquired portion amalgamated with adjoining lands for single development prior to acquisition - Acquisition removed frontage access for development - Whether entire proposed development landlocked due to acquisition - Whether loss of original access road impacted only acquired land - Whether award for injurious affection should include adjoining lands
HANIPAH FARIKULLAH JCA
(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 | CONSTITUTIONAL LAW
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') ands. 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
NOORIN BADARUDDIN J
When a citizen's constitutional right is at stake and he or she comes to court seeking reliefs, the court cannot and will not stand idly by. In this case, when the applicant had adduced enough materials in arguing that the decision of the Syariah Court in granting leave to commence contempt proceedings against her could be tainted with procedural impropriety and irrationality, and that there were serious questions of law to be determined, an application for judicial review is not frivolous, neither is it premature. ADMINISTRATIVE LAW
ADMINISTRATIVE LAW: Judicial review - Application for - Challenge against decision of Syariah Court in granting leave to commence contempt proceedings against applicant - Whether application involved interpretation of s. 229 of Syariah Court Civil Procedure (Federal Territories) Act 1988 and O. 52 of Rules of Court 2012 - Whether application for judicial review offended art. 121(1A) of Federal Constitution - Whether contempt proceedings tainted with procedural impropriety and irrationality - Whether there were serious questions of law to be determined - Whether application premature
WAN AHMAD FARID SALLEH J
An iMessage on an iPhone could be hacked or altered by the person recovering these messages. In a claim for damages for defamatory statements which were sent and received via iMessage, the claimant must first establish that the sender is the owner of the iCloud email address. TORT
TORT: Defamation - Statements - Statements sent via iPhone messaging application iMessage via iCloud email address - iMessage sent to claimant's wife - iMessage impliedly labelled claimant as having extramarital affair - Whether defendant owner of iCloud email address in question - Whether there was such possibility that defendant did not send iMessage - Whether claim proved on balance of probabilities
JOHN LEE KIEN HOW JC
(i) When a case is not a straightforward case with disputed facts and could not be resolved summarily, there is a cause of action which is not 'obviously unsustainable'. Hence, a striking out is not permissible; and (ii) the impugned parts of an affidavit ought to be expunged if they are found to be scandalous, irrelevant and redundant. CIVIL PROCEDURE
CIVIL PROCEDURE: CIVIL PROCEDURE: Striking out - Application for - Whether there were disputed facts - Whether there was cause of action which was not 'obviously unsustainable' - Whether claim scandalous, frivolous or vexatious - Whether abuse of court process - Whether striking out permissible - Rules of Court 2012, O. 18 r. 19 CIVIL PROCEDURE: Expungement - Application for - Application to expunge certain paragraphs from affidavit in support - Whether impugned parts scandalous and irrelevant - Whether statements redundant - Whether application ought to be allowed
AHMAD BACHE J
Where a right or cause of action does not exist at common law and is wholly a creature of statute, the only remedies available in respect of such right or cause of action must be those that have been specifically provided for in the relevant statute. Thus, because the right to compensation where a wayleave has been created is a right created by statute, by virtue of the Electricity Supply Act 1990 , the universe of available remedies must necessarily only be contained within the four corners of the Act. ADMINISTRATIVE LAW
ADMINISTRATIVE LAW: Judicial review - Application for - National electricity utility company installed power transmission lines across portion of land - State Executive Council imposed late payment interest in connection with compensation - Whether empowered to award late payment interest - Whether decision tainted with unreasonableness - Whether decision ultra vires Electricity Supply Act 1990
AZIZUL AZMI ADNAN J
An advocate and solicitor should not appear in court in any case where there is a reason to believe that he will be a witness in respect of a material or disputed facts in the case. LEGAL PROFESSION
LEGAL PROFESSION: Practice and etiquette - Disqualification - Application for - Firm acted for client in purchase of shares in company and individual in purchase of land held by company - Allegations of fraud and wrongdoing - Whether conflict of interest arose - Whether embarrassment would arise if firm acts for clients in suit - Whether there was likelihood that solicitors of firm would be witnesses in suit - Whether solicitors could maintain professional independence - Whether firm ought to be disqualified from acting for clients in suit - Legal Profession (Practice and Etiquette) Rules 1978, rr. 3 , 4 , 5(a) & 28(a)
FAIZAH JAMALUDIN J
ARTICLESLNS Article(s)
LEGISLATION HIGHLIGHTSPrincipal Acts
Amending Acts
PU(A)
PU(B)
Legislation Alert Updated
Revoked
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