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Issue #27/2025
03 July 2025
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CASE SPOTLIGHTS
MOHD AMAR MOHAMED v. PEGUAM NEGARA MALAYSIA & ANOR [2025] 6 CLJ 480 (i) The fact that an alleged offender is charged in the Sessions Court does not prevent the Attorney General/Public Prosecutor from exercising prosecutorial discretion, as s. 254(1) of the Criminal Procedure Code allows discontinuation of proceedings (nolle prosequi) at any stage before judgment. There is also no requirement under the law which imposes any legal duty on the prosecution to give any reason in allowing and/or rejecting a representation made by an alleged offender; (ii) To proceed with judicial review, an applicant must provide strong and compelling evidence to meet the high threshold required. If there is no clear evidence showing that the impugned decision is made irrationally or unreasonably, the necessary legal threshold to challenge is not met. ADMINISTRATIVE LAW: Judicial review - Leave to commence proceedings - Seeking to challenge prosecution's decision to apply for acquittal and discharge of alleged sexual assault offender in criminal case - Failure of prosecution to provide sufficient basis, reason or particulars to support making of impugned decision - Whether prosecution acted ultra vires art. 145(3) of Federal Constitution and s. 254 of Criminal Procedure Code - Whether impugned decision amenable to judicial review - Whether necessary legal threshold to challenge impugned decision met - Rules of Court 2012, O. 53 r. 3(1) CRIMINAL PROCEDURE: Proceedings - Discontinuation of proceedings - Prosecution's decision to apply for acquittal and discharge of alleged sexual assault offender in criminal case - Failure of prosecution to provide sufficient basis, reason or particulars to support making of impugned decision - Whether prosecution acted ultra vires art. 145(3) of Federal Constitution and s. 254 of Criminal Procedure Code JUDICIAL QUOTESAdalah dapatan Mahkamah ini bahawa ratio kes Mkini Dotcom Sdn Bhd & Ors v. Raub Australian Gold Mining Sdn Bhd [2021] 7 CLJ 145 adalah di ayat pertama dan ayat terakhir perenggan 95 ini. Penyataan dalam ayat kedua perenggan 95 itu hanyalah satu kenyataan alternatif yang hanyalah obiter dictum. Oleh itu, dengan adanya keputusan Mkini Dotcom, Mahkamah ini terikat dengan prinsip bahawa suatu entiti buatan boleh membuat tuntutan ganti rugi atas kehilangan reputasinya tanpa membuktikan kerugian atau kekurangan pendapatan. - per Johan Lee Kien How H in Haris Embong & Satu Lagi lwn. Rafidah Ibrahim [2025] CLJU 1280 LATEST CASESLegal Network Series
CLJ 2025 Volume 6 (Part 2) (i) The standard form agreement under Schedule G of the Housing Development (Control and Licensing) Regulations 1989, under cl. 3(1), provides that the prior approval of a purchaser must first be obtained for the creation of a charge in favour of the developer. In the circumstances where the prescribed statutory contract contains such a clear prohibition, a charge created in favour of the developer without the requisite consent of the purchaser, would render the instrument insufficient and thus null and void under s. 340(2)(b) of the National Land Code; (ii) A donee of a power of attorney must act strictly within the four corners of the power granted and cannot act beyond it. Once a donee exceeds the authority conferred to it, any instrument executed beyond the scope of its power is null and void and has no legal power. LAND LAW
LAND LAW: Charge - Creation and validity of - Developer charged property to moneylender after receiving full purchase price - Whether developer stood in position of bare trustee vis-à-vis purchaser - Whether bare trustee could create charge without consent of beneficial owner - Whether ownership no longer with developer upon payment of full purchase price - Whether power of attorney given by land proprietor to developer limited to effect transfer of subdivided titles to purchasers - Whether power to create charge over sold land prohibited under sale and purchase agreement - Whether instrument of charge insufficient instrument - Whether rendered charge invalid, null and void - National Land Code, s. 340(2)(b) LAND LAW: Indefeasibility of title and interest - Void instrument - Developer charged property to moneylender after receiving full purchase price - Power of attorney ('PA') granted by land proprietor to developer - Whether PA limited to effect transfer of subdivided titles to purchasers - Whether ownership no longer with developer upon payment of full purchase price - Whether power to create charge over sold land prohibited under sale and purchase agreement - Whether fraudulent act - Whether instrument of charge insufficient instrument - Whether rendered charge invalid, null and void - Whether fell under exception to indefeasibility - National Land Code, s. 340(2)(b)
Lee Swee Seng JCA
(i) A liquidator must take reasonable steps to obtain the best price for the assets of the company in liquidation, as the circumstances of the case permit. The balancing of the competing considerations must properly be a matter of the discretion of the liquidator; (ii) An applicant cannot avail itself of s. 517 of the Companies Act 2016 to challenge the decision of a liquidator, when what is sought to be set aside is not merely an act or decision of the liquidator, but an order of the court. Directions contained in a court order constitute a judgment of the High Court against which an appeal can validly be mounted. CIVIL PROCEDURE | COMPANY LAW
CIVIL PROCEDURE: Setting aside - Application for - Application to set aside decision of liquidator to sell equity interests in subsidiary company - Whether sale prejudicial to interests of creditors - Whether liquidator disclosed pertinent information to winding-up court - Whether liquidator acted in best interest of creditors - Whether there was breach of duty CIVIL PROCEDURE: Setting aside - Application for - Application to set aside decision of liquidator to sell equity interests in subsidiary company - Sale effected by public tender after leave of court obtained - Whether High Court Judge clothed with jurisdiction to revisit court order granted approving sale - Whether functus officio - Whether appellant could avail itself of s. 517 of Companies Act 2016 to challenge decision of liquidator - Whether proper course would be to appeal against decision of court COMPANY LAW: Liquidators - Discharge of duties - Roles in company's liquidation - Decision of liquidator to sell equity interests in subsidiary company - Whether sale prejudicial to interests of creditors - Whether liquidator disclosed pertinent information to winding-up court - Whether liquidator acted in best interest of creditors - Whether there was breach of duty
Azizah Nawawi JCA
The Malaysia Competition Commission ('MyCC') is obliged to ensure a proper investigation is carried out pursuant to Part III of the Competition Commission Act 2010 ('Act') regarding complaints made against a company for discriminatory conduct. In issuing a proposed decision imposing financial penalty on a company, the MyCC must have given prior notification regarding the investigation and its power to request information, documents and statements under s. 18(1)(a) and (b) of the Act must be exercised reasonably and in accordance with the Act. Failure to do so would deprive the company of the opportunity to understand the precise complaint(s) against it, rendering the investigation tainted with procedural impropriety. CIVIL PROCEDURE | COMPETITION LAW
CIVIL PROCEDURE: Judicial review - Appeal against - Infringement penalty under Competition Commission Act 2010 - Investigation conducted by Malaysia Competition Commission ('MyCC') regarding complaints against company providing e-hailing services for discriminatory conduct - Proposed decision issued imposed financial penalty on company - Whether judicial review application to quash proposed decision premature - Whether internal remedial procedure available - Whether proposed decision illegal or ultra vires - Whether MyCC's investigation tainted with procedural impropriety - Competition Commission Act 2010 COMPETITION LAW: Proposed decision - Imposition of financial penalty - Infringement penalty under Competition Commission Act 2010 - Investigation conducted by Malaysia Competition Commission ('MyCC') regarding complaints against company providing e-hailing services for discriminatory conduct - Proposed decision issued imposed financial penalty on company - Whether MyCC's investigation tainted with procedural impropriety - Whether proposed decision illegal or ultra vires - Competition Commission Act 2010
S Nantha Balan JCA
(i) An advocate and solicitor's action of making a written complaint directly to a presiding judge of an ongoing litigation about the opponent litigant, which might prejudice and influence the mind of the presiding judge, ought to be frowned upon. It would amount to 'obstructing' the court in administering fair justice to litigants as well as breed an unhealthy practice in the legal profession. If there is any complaint against any action taken in a court case, the complaint ought to be made to the firm of solicitors representing a litigant; (ii) Although a right to be heard ought to be accorded to an advocate and solicitor before the Disciplinary Board ('DB') metes out its decision for an adverse punishment to be imposed on an advocate and solicitor, a mere breach of a right to be heard is in itself insufficient for the court to set aside an entire decision of a DB or overturn a court's decision when the breach is of no significance or is not serious such as to have impact on the outcome of the DB's final decision. LEGAL PROFESSION | STATUTORY INTERPRETATION | WORDS & PHRASES
LEGAL PROFESSION: Advocates and solicitors - Professional discipline - Misconduct - Conduct unbefitting of advocate and solicitor which brought legal profession to disrepute - Act of writing to presiding judge - Complaints on conduct of opponent litigant - Whether act amounted to misconduct and unacceptable - Whether complaints would prejudice and influence mind of presiding judge - Whether would amount to obstructing court in administering fair justice to litigants - Whether there was breach of right to be heard - Whether breach impacted Disciplinary Board's final decision - Legal Profession Act 1976, ss. 94(3) & 103E - Legal Profession (Practice and Etiquette) Rules 1978, rr. 18 & 31 STATUTORY INTERPRETATION: Definition - 'that is likely to be adverse against an advocate and solicitor' - Whether same words used in pre and post s. 103D(4) of Legal Profession Act 1976 - Whether connoted same interpretation - Whether right to be heard ought to be accorded before Disciplinary Board meted out decision for adverse punishment to be imposed on advocate and solicitor WORDS & PHRASES: 'that is likely to be adverse against an advocate and solicitor' - Legal Profession Act 1976, s. 103D(4) - Whether same words used in pre and post s. 103D(4) of Legal Profession Act 1976 - Whether connoted same interpretation - Whether right to be heard ought to be accorded before Disciplinary Board meted out decision for adverse punishment to be imposed on advocate and solicitor Mariana Yahya JCA
(i) If the certificate of takaful or schedule had clearly stated the issuance time of an insurance policy, such time would be the commencement time of the said policy; (ii) The duty of utmost good faith in respect of an insurance contract is applicable to both parties. The insured must also disclose any material fact to the insurer before an insurance contract is entered; (iii) The interest of third parties will not override the clear language and effect of an insurance contract. Although the Road Transport Act 1987 does have a salutary aim of facilitating recovery of accident claims, insurers should not be compelled to underwrite any risk it did not agree to bear. ROAD TRAFFIC
ROAD TRAFFIC: Insurance - Third party claims - Road traffic accident between motorcar and motorcycle - Rider of motorcycle filed civil action against owner and driver of motorcar - Application via originating summons ('OS') by insurer of motorcar under s. 96(3) of Road Transport Act 1987 ('RTA') to void insurance policy ('policy') covering motorcar - Whether OS could be properly decided solely based on affidavit evidence - Policy issued on same date of accident - Whether policy in effect at time of accident - Whether insurer waived right to void policy - Whether voiding of policy would run contrary to underlying objectives of RTA
Atan Mustaffa Yussof Ahmad J
Sesebuah entiti tujuan khas yang berkaitan dengan Kerajaan dan melaksanakan pengambilan tanah untuk projek awam boleh diberi lanjutan masa untuk memfailkan bantahan terhadap award pampasan Pentadbir Tanah sekiranya kelewatan tersebut disebabkan oleh kerumitan proses dalaman dan struktur korporatnya, terutamanya apabila penilai yang dilantiknya dinafikan peluang untuk mengemukakan penilaian semasa siasatan Pentadbir Tanah, dan entiti tersebut telah mematuhi keperluan untuk membayar sebahagian besar pampasan yang diawardkan. UNDANG-UNDANG TANAH
UNDANG-UNDANG TANAH: Pengambilan tanah - Pampasan - Bantahan terhadap pampasan - Kelewatan membuat bantahan - Permohonan untuk lanjutan masa - Siasatan untuk pengambilan tanah dijalankan tanpa kehadiran penilai pemohon - Sama ada kelewatan munasabah - Sama ada lanjutan masa wajar dibenarkan - Sama ada wujud keadaan khas yang membolehkan lanjutan masa diberi - Akta Pengambilan Tanah 1960, s. 38(6)
Rozi Bainon PK
Courts are not inclined to grant judicial review against a decision made in pursuance of a policy decision of the Government unless such decision is inconsistent with the Constitution or the laws or it is tainted with irrationality or abuse of power. If judicial review is still granted against such a decision, it will be against the doctrine of separation of powers as upheld by our system of Government. CIVIL PROCEDURE
CIVIL PROCEDURE: Judicial review - Application - Application to quash decision of Director of Gas Distribution ('Director') - Licenses with respect of supply and retail of subsidised and unsubsidised liquefied petroleum gas in Sarawak only granted renewal for duration of 30 June 2023 until 30 November 2023 - Whether application ought to be allowed - Whether applicant had legitimate expectation renewal would be granted - Whether Director acted ultra vires and in bad faith - Whether Director failed to exercise its statutory powers in accordance with object of Distribution of Gas Ordinance 2016 (Sarawak) (Cap 72) - Rules of Court 2012, O. 53 r. 3(2)
Faridz Gohim Abdullah JC
When a prosecution wishes to apply for a joint trial, it is for the prosecution to justify it. If the trial of two charges amounts to a misjoinder of charges, which can cause confusion, unfairness, uncertainty and embarrassment to the accused, this can result in an illegality, rendering the trial to be null and void. CRIMINAL PROCEDURE
CRIMINAL PROCEDURE: Charge - Misjoinder of charges - Whether trial of two charges together amounted to confusing issues - Whether there was unfairness, uncertainty and embarrassment to accused defending charges - Whether savoured oppression and abuse of process - Whether there was misjoinder - Whether resulted in illegality - Whether trial null and void - Whether proper to order retrial - Road Transport Act 1987, ss. 41(1) & 44(1) CRIMINAL PROCEDURE: Trial - Misjoinder of charges - Whether trial of two charges together amounted to confusing issues - Whether there was unfairness, uncertainty and embarrassment to accused defending charges - Whether savoured oppression and abuse of process - Whether there was misjoinder - Whether resulted in illegality - Whether trial null and void - Whether proper to order retrial - Road Transport Act 1987, ss. 41(1) & 44(1)
Suria Kumar DJ Paul J
ARTICLESLNS Article(s)
LEGISLATION HIGHLIGHTSPrincipal Acts
Amending Acts
PU(A)
PU(B)
Legislation Alert Updated
Revoked
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