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Issue #46/2025
13 November 2025
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CASE SPOTLIGHTS
VINOD KUMAR VERAPPAN v. D/KPL KERRY YAN & ORS [2025] 9 CLJ 1007 (i) A successful writ of habeas corpus in a criminal case, which challenges procedural irregularities in a person's detention under public law, does not automatically serve as conclusive proof for a civil claim of false imprisonment. For a civil claim, the plaintiff must separately prove that his detention was unlawful due to a lack or excess of jurisdiction by the detaining authority; (ii) In cases involving statutory detention, while an initial arrest may be deemed lawful if it is based on reasonable suspicion and follows the prescribed legal procedures, the subsequent detention can be rendered unlawful if the detaining authority fails to strictly adhere to all statutory requirements. For instance, if a specific law mandates that a Minister must consider reports from two separate individuals before issuing a detention order, the failure to do so is a fatal flaw that invalidates the detention. CRIMINAL PROCEDURE: Habeas corpus - Wrongful arrest and unlawful detention - Claimant arrested under s. 3(1) of Drug Dependants (Treatment and Rehabilitation) Act 1983 and detained under Dangerous Drugs (Special Preventive Measures) Act 1985 - Claimant successful in habeas corpus application - Whether habeas corpus order established conclusive evidence that claimant was unlawfully detained CIVIL PROCEDURE: Damages - Claim for - Claim for damages in civil court arising out of writ of habeas corpus issued by criminal court - Distinction between public and private laws - Claimant arrested under s. 3(1) of Drug Dependants (Treatment and Rehabilitation) Act 1983 and detained under Dangerous Drugs (Special Preventive Measures) Act 1985 - Claimant successful in habeas corpus application - Whether habeas corpus order established conclusive evidence that claimant was unlawfully detained - Whether claimant lawfully arrested and lawfully detained - Whether claimant entitled to damages sought DAMAGES: Action for - Claim for general, special exemplary and aggravated damages - Claimant arrested under s. 3(1) of Drug Dependants (Treatment and Rehabilitation) Act 1983 and detained under Dangerous Drugs (Special Preventive Measures) Act 1985 - Claimant successful in habeas corpus application - Whether habeas corpus order established conclusive evidence that claimant was unlawfully detained - Whether claimant lawfully arrested and lawfully detained - Whether claimant entitled to damages sought STATUTORY INTERPRETATION: Construction - Dangerous Drugs (Special Preventive Measures) Act 1985, ss. & 3(1) & 6(1) - Arrest and detention of person for purpose of investigation if officer has reason to believe that there were grounds to justify detention - When reasonable suspicion arose WORDS & PHRASES: 'reasonably suspects' - Drug Dependants (Treatment and Rehabilitation) Act 1983, s. 3(1) - Arrest and detention of person for purpose of investigation if officer has reason to believe that there were grounds to justify detention - When reasonable suspicion arose WORDS & PHRASES: 'reasons to believe there are grounds which could justify his detention' - Dangerous Drugs (Special Preventive Measures) Act 1985, s. 3(1) - Arrest and detention of person for purpose of investigation if officer has reason to believe that there were grounds to justify detention - When reasonable suspicion arose JUDICIAL QUOTES“According to the defendant, Damansara Realty Bhd v. Bungsar Hill Holdings Sdn Bhd & Anor [2011] 9 CLJ 257 supplements Berjaya Times Square Sdn Bhd v. M-Concept Sdn Bhd [2010] 1 CLJ 269 and fills the gap left in the latter in that there can still be a total failure of consideration even where the contract has been partly performed provided that such performance has little or no value. With all due respect, as we have endeavoured to highlight in the earlier part of this judgment, our analysis of Berjaya Times Square suggests otherwise. Additionally, the weight of academic literature further demonstrates a unified body of thought in support of our view. As alluded to above, the true test of a total failure of consideration is as stated by the House of Lords in Stocznia Gdanska per Lord Goff, “the test is not whether the promise has received a specific benefit, but rather whether the promisor has performed any part of the contractual duties in respect of which payment is due” and not the test of “whether the party in default has failed to perform his promise in its entirety” as stated by this court in Berjaya Times Square. We wish to further add that Lord Goff's formulation of the test is consistent with the earlier observation made by Viscount Simon in Fibrosa Spolka Akcyjna.” - Per Ahmad Terrirudin Mohd Salleh FCJ in Lim Swee Choo & Anor v. Ong Koh Hou & Another Appeal [2025] 10 CLJ 341 LATEST CASESLegal Network Series
CLJ 2025 Volume 9 (Part 5) Leave of the court is required before proceedings against a court-appointed liquidator, an officer of the court, can be commenced. This is to ensure that he can carry out his statutory duty without having to defend any unnecessary litigation that may hinder the winding-up process of a company. In view of the onerous statutory duty of a liquidator, there should not be any preference to any class of persons who wish to commence a proceeding against a liquidator. COMPANY LAW | CIVIL PROCEDURE | WORDS & PHRASES
COMPANY LAW: Liquidator - Sanction - Company wound up and liquidator appointed by court - Application made by way of originating summons challenging liquidator's decision pertaining to liquidator's fee - Whether leave of court required before action could be taken against court-appointed liquidator - Companies Act 2016, ss. 486 & 517 CIVIL PROCEDURE: Proceedings - Originating summons - Leave of court - Whether leave of court required before action could be taken against court-appointed liquidator - Companies Act 2016, ss. 486 & 517 WORDS & PHRASES: 'subject to the control of the court' - Companies Act 2016, s. 486(2) - Whether leave of court required before action or proceedings could be commenced against liquidator Supang Lian JCA
(i) There is no provision in the Civil Law Act 1956 which states a beneficiary/next-of-kin of a deceased person may assume that the other beneficiaries, ie, parent, child or persons with disabilities under the care of the deceased person have waived their rights under the said Act by their failure to reply to the enquiry as to whether they are bringing or intending to bring an action against the party whose wrongful act caused the death of the deceased person. The legal heirs have not abandoned, transferred, assigned or otherwise disposed of their right to the estate or entitlement to claim for the death of the deceased to any person or entity. They are entitled to claim for the death of the deceased; (ii) Civil courts have the jurisdiction to declare the division of a goodwill payment in accordance with a faraid order where the parties sought for the High Court to distribute monies among the deceased's legal heirs in accordance with the distribution portion in the faraid order; (iii) Courts and judges may only allow preliminary objections for non-compliance of the rules if the non-compliance has occasioned a substantial miscarriage of justice that cannot be cured by amendment or order for costs or both. When there is a failure to prove that a non-compliance has caused any prejudice, the non-compliance of the writ with the Rules of Court 2012 does not render the amended writ and statement of claim a nullity. SUCCESSION | CIVIL PROCEDURE
SUCCESSION: Dependency claim - Parties - Next-of-kin - Distribution of goodwill payment to rightful legal heirs, beneficiaries and dependents of deceased - Whether claimants as child and father of deceased relinquished rights to bring action against airline company - Whether claimants abandoned, transferred or otherwise disposed of right to claim for death of deceased - Whether civil courts have jurisdiction to declare division of goodwill payment in accordance with faraid order - Civil Law Act 1956, s. 7(2) CIVIL PROCEDURE: Writ - Statement of claim - Writ and statement of claim amended to substitute son as father's litigation representative - Failure to comply with mandatory requirement - Whether non-compliance occasioned substantial miscarriage of justice or prejudice - Whether rendered amended writ and statement of claim nullity - Whether there was failure to obtain letter of administration to estate of deceased - Whether there was lack of capacity to bring suit - Rules of Court 2012, O. 2 r. 3, O. 6 r. 1 & O. 15 r. 7
Mariana Yahya JCA (Civil Appeal No: W-02(NCvC)(W)-1092-07-2023)
When public disclosure of documents without adequate safeguards is extremely risky and may cause irreparable damage, a protective order is necessary, especially if it is in the interest of justice that the documents be protected. CIVIL PROCEDURE
CIVIL PROCEDURE: Judgments and orders - Protective order - Application for protective order to be imposed over documents to protect confidentiality - Whether disclosure of documents without adequate safeguards extremely risky - Whether premature disclosure of documents may cause irreparable damage - Whether interest of justice require documents be protected
Raja Ahmad Mohzanuddin Shah J
Seorang pemilik tanah tidak secara automatik berhak menuntut pampasan bagi pengambilan tanah bawah tanah. Agar dipertimbangkan bagi pampasan bawah Akta Pengambilan Tanah 1960 untuk tanah bawah tanah, pemohon mesti membuktikan bahawa mereka telah diberikan dan mempunyai hak milik yang dicatatkan untuk tanah bawah tanah tersebut. Tanpa pemilikan khusus ini, tuntutan pampasan untuk tanah itu sendiri tidak dapat dipertahankan. UNDANG-UNDANG TANAH
UNDANG-UNDANG TANAH: Pengambilan tanah - Tanah bawah tanah - Pampasan - Rujukan - Award nominal dan kesan mudarat - Bantahan terhadap pampasan yang diawardkan oleh Pentadbir Tanah - Sama ada pemilik tanah mempunyai hak automatik atas kawasan tanah bawah tanah - Sama ada berhak terhadap pampasan untuk tanah bawah tanah - Kanun Tanah Negara - Akta Pengambilan Tanah 1960
Roslan Mat Nor H
(i) The duty of care owed by law enforcement authorities is recognised in various jurisdictions. The failure to carry out basic supervisory practices in police functions constitute negligence and breach of statutory duties. Where evidence establishes a litany of failures, incompetence and disregard for proper procedure, the law enforcement authorities ought to take corrective measures to maintain public confidence in the administration of justice and the rule of law; (ii) Under ss. 5 and 6 of the Government Proceedings Act 1956, the Government shall be liable for wrongful acts of public officers in the same manner as a principal is liable for acts of an agent. However, no proceeding lies against the Government unless proceedings would have lain against the officer personally and that officer must have been employed by the Government and paid from Government revenues. The officer who was responsible for the tortious acts must be made a party to the proceedings and his liability established before the Government can be made vicariously liable as a principal. ADMINISTRATIVE LAW | CRIMINAL PROCEDURE | TORT
ADMINISTRATIVE LAW: Public officer - Statutory duty - Police department - Statutory duty to investigate crimes properly - Whether breached standard operating procedures in death investigation - Whether investigation showed significant procedural deficiencies and departures from established investigative protocols - Whether there was failure to properly manage and execute judicial directives - Whether breaches of statutory duty caused direct and foreseeable consequence to victim and victim's family - Government Proceedings Act 1956, ss. 5 & 6 - Police Act 1967, s. 20 CRIMINAL PROCEDURE: Police investigation - Statutory duty - Statutory duty to investigate crimes properly - Whether breached standard operating procedures in death investigation - Whether investigation showed significant procedural deficiencies and departures from established investigative protocols - Whether there was failure to properly manage and execute judicial directives - Whether there was evidence of malfeasance, misfeasance and nonfeasance by police - Whether breaches of statutory duty caused direct and foreseeable consequence to victim and victim's family - Government Proceedings Act 1956, ss. 5 & 6 - Police Act 1967, s. 20 TORT: Negligence - Breach of statutory duty - Statutory duty to investigate crimes properly - Whether breached standard operating procedures in death investigation - Whether investigation showed significant procedural deficiencies and departures from established investigative protocols - Whether breaches of statutory duty caused direct and foreseeable consequence to victim and victim's family - Whether awards of general, aggravated and exemplary damages justified - Government Proceedings Act 1956, ss. 5 & 6 - Police Act 1967, s. 20 Roz Mawar Rozain J
The concept of a prudent insurer is an entrenched principle in a contract of insurance. This concept requires the insurer, who is entering into a contract of insurance, to exercise prudence before issuing a policy covering risks. Insurers who fail to act as a prudent insurer would be taken to have waived their right to assert a fact as regards which they have acted imprudently. INSURANCE | ROAD TRAFFIC
INSURANCE: Policy - Indemnity policy - Third-party motor vehicle indemnity policy - Policy issued for lorry registered in name of deceased - Lorry driven by deceased's son involved in road accident with motorcycle ridden by third-party - Third party issued notice to insurer notifying intention to file suit against deceased's son - Insurer sought to declare policy void on grounds of non-disclosure that registered owner of lorry had passed away - Whether there was insurable interest - Effect of death of deceased before policy was issued by insurer - Right of innocent third-party to claim - Whether insurer prudent in issuing policy - Road Transport Act 1987, ss. 91(1) & 96(2) - Financial Services Act 2013, Schedule 9 ROAD TRAFFIC: Accident - Insurance - Third-party motor vehicle indemnity policy - Policy issued for lorry registered in name of deceased - Lorry driven by deceased's son involved in road accident with motorcycle ridden by third-party - Third party issued notice to insurer notifying intention to file suit against deceased's son - Insurer sought to declare policy void on grounds of non-disclosure that registered owner of lorry had passed away - Whether there was insurable interest - Right of innocent third-party to claim - Road Transport Act 1987, ss. 91(1) & 96(2) - Financial Services Act 2013, Schedule 9
Quay Chew Soon J
Under the Street, Drainage and Building Act 1974, Local Authorities operate within a broad discretionary framework, which enables them to interpret and enforce compliance measures that ensure safety and public welfare, including the authority to initiate enforcement actions. Any parties dissatisfied with the Local Government's decision may challenge it through judicial review but in doing so, the action should be adequately contested with the named Local Authority as the respondent. The court would refrain from interfering with the discretionary power conferred by Parliament to Local Government. LOCAL GOVERNMENT
LOCAL GOVERNMENT: Buildings - Renovation - Allegations of illegal renovation and construction of wall on top of existing retaining wall on adjacent property - Demand by neighbour to demolish structure - Whether renovation carried out without necessary permit - Whether fell under regulatory powers and enforcement responsibilities of Local Government - Whether illegal renovations without requisite permit directly violated statutory responsibilities of local authorities - Whether contravened regulations related to building safety, urban planning policies or rights associated with adjacent properties - Street, Drainage and Building Act 1974, s. 70 LOCAL GOVERNMENT: Local Authority - Duties of Local Authority - Allegations of illegal renovation and construction of wall on top of existing retaining wall on adjacent property - Demand by neighbour to demolish structure built on adjacent property - Whether renovation carried out without necessary permit - Whether fell under regulatory powers and enforcement responsibilities of Local Government - Whether illegal renovations without requisite permit directly violated statutory responsibilities of local authorities - Whether contravened regulations related to building safety, urban planning policies or rights associated with adjacent properties - Street, Drainage and Building Act 1974, s. 70
Hazizah Kassim JC
A marriage that is solemnised outside of Malaysia but subsequently registered in Malaysia, pursuant to s. 31 of the Law Reform (Marriage and Divorce) Act 1976 ('LRA'), is deemed 'as if it was performed in Malaysia'. The registration under s. 31 confers upon the parties a right equivalent to those that would have been granted had the marriage been solemnised within Malaysia. Consequently, where the parties have fulfilled the requirements of the provisions of the LRA, the court is clothed with the jurisdiction to allow an application under s. 107(3) of the LRA to have the divorce decree, issued by the court in Indonesia, to be registered in Malaysia. FAMILY LAW
FAMILY LAW: Divorce - Jurisdiction - Application under s. 107(3) of Law Reform (Marriage and Divorce) Act 1976 ('LRA') for divorce decree issued by Indonesian court to be registered in Malaysia - Marriage solemnised outside Malaysia - Whether marriage duly registered under s. 31 of LRA - Whether marriage deemed 'as if it was performed in Malaysia' - Whether s. 104 of LRA empowers court to hear application - Whether application properly made - Whether fulfilled requirements of LRA
Azizan Md Arshad J
ARTICLESLNS Article(s)
LEGISLATION HIGHLIGHTSPrincipal Acts
Amending Acts
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