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  1. PERBADANAN PENGURUSAN SUNRISE GARDEN KONDOMINIUM v. SUNWAY CITY (PENANG) SDN BHD & ORS AND ANOTHER APPEAL [2023] 2 CLJ 333

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CASE(S) OF THE WEEK

PERBADANAN PENGURUSAN SUNRISE GARDEN KONDOMINIUM v.
SUNWAY CITY (PENANG) SDN BHD & ORS AND ANOTHER APPEAL [2023] 2 CLJ 333
FEDERAL COURT, PUTRAJAYA
NALLINI PATHMANATHAN FCJ; RHODZARIAH BUJANG FCJ; MOHAMAD ZABIDIN MOHD DIAH FCJ
[CIVIL APPEAL NOS: 01(f)-24-12-2021(P) & 01(f)-25-12-2021]
20 JANUARY 2023

LAND LAW: Development - Planning permission - Development in environmentally sensitive area - 43% of land proposed to be developed comprised hill land - Local authority granted developer with planning permission - Whether, in absence of gazetted local plan for area under authority of Majlis Bandaraya Pulau Pinang, Penang Structure Plan 2020 ('Structure Plan') for area would prevail - Whether portions of zoning plan which contravenes and/or fails to conform with Structure Plan could be relied upon - Whether State Planning Committee can bypass requirements of s. 22(2A)(c) of Town and Country Planning Act 1976 - Whether requirement of prior advice from National Physical Planning Council met

STATUTORY INTERPRETATION: Construction - Land law - Administrative guidelines - Whether drafting, approval and issuance guidelines in consonance with statutory provisions of Town and Country Planning Act 1976 - Whether guidelines valid - Whether issuance of guidelines amounted to variation or alteration

APPEAL UPDATES

1. PP lwn. Abdul Latif Bandi & Yang Lain [2021] 1 LNS 1471 mengesahkan kes PP lwn. Abdul Latif Bandi & Yang Lain [Perbicaraan Jenayah No. JA-44-31-02/2018]

2. Plusbury Development Sdn Bhd v. Goldpage Assets Sdn Bhd [2021] 1 LNS 1886 affirming the High Court case of Goldpage Assets Sdn Bhd v. Plusbury Development Sdn Bhd [Saman Pemula No: WA-24NCC(ARB)-28-06/2018]

LATEST CASES

Legal Network Series

CLJ 2023 Volume 2 (Part 2)

In interpreting s. 6 of the Distribution Act 1958, the purpose of the Act is to be given consideration; the Act provides for the distribution of the estate of the deceased among those who survived the deceased to follow the order of succession provided in s. 6. And the express use of the word 'issue' instead of 'child' in s. 6 of the Act, connotes that both the terms ought not to be treated the same. Read holistically, the term 'issue' sought to enlarge the category of persons who may inherit under the Act, regardless of legitimacy of the descendant.
Tan Kah Fatt & Anor v. Tan Ying [2023] 2 CLJ 169 [FC]

• SUBJECT
• CORAM
• COUNSEL

The use of a mark by a licensee is recognised as use by the licensor/proprietor. A licensee, as opposed to an assignee, acquires no proprietary rights or goodwill over the trade marks he is licensed to use. It is essentially a question of contract between the proprietor of the trade mark as the licensor and the licensee whether the latter is entitled to any rights over the marks as a mere licensee. A licensor whose trade mark has been registered wrongfully by his sub-licensee in his own name is entitled to seek rectification.
Appraisal Property Management Sdn Bhd & Ors v. Singham Sulaiman Sdn Bhd [2023] 2 CLJ 206 [CA]

• SUBJECT
• CORAM
• COUNSEL

In the matters of granting of pardon, where the Yang di-Pertuan Agong ('YDPA') acts on the advice of the Pardons Board, the long and consistent established position of the law in Malaysia is that the prerogative power of the YDPA under art. 42 of the Federal Constitution is non-justiciable. An advocate and solicitor, who seeks a declaration from the court to invalidate the pardon, does not enjoy any higher rights or privilege than ordinary people, and his failure to demonstrate that he had suffered some special damage by the granting of the pardon showed he had no locus standi to challenge the pardon. There is thus no basis to impugn the YDPA's exercise of his exclusive power to grant pardon, as the prerogative of mercy can only be exercised by the YDPA and is not caught within the supervisory jurisdiction of the courts.
Datuk Seri Anwar Ibrahim v. Mohd Khairul Azam Abdul Aziz & Another Appeal [2023] 2 CLJ 236 [CA]

• SUBJECT
• CORAM
• COUNSEL

While the Courts of Judicature Act 1964, under ss. 60 and 71, spelt out the powers of the Court of Appeal, inter alia, to order a retrial, in a circumstance where the memorandum of appeal was filed without the benefit of the grounds of judgment of the trial court, the appellate court, by assessing all the evidence available, may still reach a finding without ordering a fresh trial.
Meccilect Sdn Bhd v. Petrosab Petroleum Engineering Sdn Bhd & Anor [2023] 2 CLJ 255 [CA]

• SUBJECT
• CORAM
• COUNSEL

An arbitration agreement is not rendered inoperative merely on account of one party failing to pay further deposit. If one party refuses to make payment of the advance deposit, the arbitration would continue but that party would only be entitled to defend its claim and not pursue further ie, counterclaim, adding third party.
JKP Sdn Bhd v. Anas Construction Sdn Bhd [2023] 2 CLJ 273 [HC]

• SUBJECT
• CORAM
• COUNSEL

While it is not in the public interest to grant bail to one who is faced with an offence of murder, a non-bailable offence by virtue of the First Schedule of the Criminal Procedure Code, if there are factors in favour of granting bail, in this case, the well-being of the applicant's children, the court may exercise its discretion to grant bail. That said, the requirements of public interest must also be satisfied, that is, by imposing suitable conditions.
Mohammad Ambree Yunos v. PP [2023] 2 CLJ 294 [HC]

• SUBJECT
• CORAM
• COUNSEL

A sale and purchase agreement regarding the purchases of apartments in a project must comply with the statute and must be read within the ambit of the statute where it is stated that the period of completion of a residential property is 36 months. A letter of extension of completion given by the Controller of Housing, who has no authority to give such extension, has no legal effect; (ii) The developers are found to have perpetuated misrepresentation on the purchases of the apartments in the project where there is positive assertions in a manner not warranted and a breach of duty with intent to give advantage thereby inducing a party to the agreement to make a mistake as to the substance of the agreement; and (iii) When there is evidence of lack of proper workmanship and material, the defects ought to be rectified by the developers.
Toh Shu Hua & Ors v. Wawasan Rajawali Sdn Bhd & Anor [2023] 2 CLJ 310 [HC]

• SUBJECT
• CORAM
• COUNSEL

The judicial review application is solely to review the decision-making process of the Minister of Finance ('Minister') under s. 135 and/or s. 127(3A) of the Income Tax Act 1967 and the provisions allow any person, such as the applicant, to seek exemption from the Minister. As such, the application to intervene at this stage by the Director General of Inland Revenue ('DGIR') is premature as the DGIR is not in any way involved in the decision-making process. At the leave stage, the court has yet to decide whether there is in fact a 'decision' made by the Minister and whether such 'decision' is susceptible to judicial review. The DGIR therefore does not fulfil the 'proper person' test under O. 53 r. 8 of the Rules of Court 2012.
Wealthy Growth Sdn Bhd v. Menteri Kewangan Malaysia; Ketua Pengarah Hasil Dalam Negeri (Intervener) [2023] 2 CLJ 321 [HC]

• SUBJECT
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ARTICLES

CLJ Article(s)

1. THE MALAYSIAN BASIC STRUCTURE ^{[Read excerpt]}
   by GOPAL SRI RAM* [2023] 2 CLJ(A) i

[2023] 2 CLJ(A) i



MALAYSIA

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THE MALAYSIAN BASIC STRUCTURE

by
GOPAL SRI RAM*

General

This article is addressed to the untrained, who acting under grave error, consider the basic structure doctrine to be Indian in origin. Nothing can be further from the truth.

The basic structure doctrine is of German descent. To be accurate, it is of Prussian descent.

The doctrine in its original form was created at the time of Bismarck when he was Chancellor of Prussia. It reads as follows. The Legislature of a State has power to make any law including a law amending the Constitution: provided that any such law does not affect the basic structure of the Constitution. As to what is part of the basic structure of a given Constitution depends upon its own ingredients.

. . .

* Dato' Seri Gopal Sri Ram was a former judge of the Federal Court Malaysia; he has since passed on on 29 January 2023. He will always be remembered for his legal luminosity and brilliance.

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LNS Article(s)

1. LATE BIRTH REGISTRATION CASES IN SABAH AND SARAWAK: A PROCEDURAL PERSPECTIVE ^{[Read excerpt]}
   by Tuan Afiq bin Agoes^[i] Tuan Md Syafique bin Md Hilmie^[ii] [2023] 1 LNS(A) xiii

[2023] 1 LNS(A) xiii



MALAYSIA

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LATE BIRTH REGISTRATION CASES IN SABAH AND SARAWAK:
A PROCEDURAL PERSPECTIVE

by
Tuan Afiq bin Agoes^[i]
Tuan Md Syafique bin Md Hilmie^[ii]

INTRODUCTION

Malaysia is a country that practices a system of democracy based on the Federation system, where His Majesty the King acts as the paramount ruler. Including the States of Sabah and Sarawak, 13 States have agreed to the concept of forming Malaysia. Each State involved has surrendered parts of its power, such as financial, defence, education, foreign affairs and others, as stated in the Malaysian Constitution, which the central government administers. There are also matters under the State's power, and each State administers the power over those matters. The distribution of powers is outlined in Part VI of the Malaysian Constitution, read in the Ninth Schedule.^[1] The State-Federal powers were distributed into three lists: Federal, State, and Concurrent. In Sabah and Sarawak, one of the matters that fall on the State List is the regulation for registration of births and deaths of the people therein

. . .

[i] Former Magistrate of Beaufort and currently serving as Deputy Public Prosecutor in Kota Kinabalu.

[ii] Deputy Public Prosecutor, Sarawak.

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2. GUIDELINES ON RECOGNIZED MARKET OPERATORS IN MALAYSIA* ^{[Read excerpt]}
   by Aryn Rozali^[i] Nurul Hibbah Abd Khalid^[ii] Fatihah Azhar^[iii] [2023] 1 LNS(A) xiv

[2023] 1 LNS(A) xiv



MALAYSIA

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GUIDELINES ON RECOGNIZED MARKET OPERATORS IN MALAYSIA*

by
Aryn Rozali^[i]
Nurul Hibbah Abd Khalid^[ii]
Fatihah Azhar^[iii]

INTRODUCTION

The rapid development of digital currency/token as a form of investment, mode of payment and now entertainment has forced the government in every country to develop a regulatory framework in order to provide layers of protection and accountability for digital investors as well as operators. In Malaysia, despite the Security Commission of Malaysia (SC) enforcement actions against one of the biggest online cryptocurrencies exchange companies, Binance Holdings Limited and its three other entities on 30th July 2021,^[1] the SC has in the following year, on 31st October 2022, announced the registration for new "recognized market operators – digital asset exchange" (RMO-DAX) from 1st November 2022.^[2] The situation in Singapore differs as it has been seen as a volatile and speculative in sending mixed signals to the industry.^[3]

That being said, this article will discuss the requirements in conducting cryptocurrency exchanges in Malaysia and Singapore and compare them side by side for future investors' consideration in operating cryptocurrency exchanges.

. . .

*This article is reproduced, with permission by Messrs Nazmi Zaini Chambers.

[i] Associate, Messrs Nazmi Zaini Chambers.

[ii] Associate, Messrs Nazmi Zaini Chambers.

[iii] Assistant Manager, Messrs Nazmi Zaini Chambers.

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