| Print this page | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
 |
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
|
Issue #44/2026
29 October 2026
|
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
|
Subscribe now to make the most of this legal bulletin and have full access to judgments and other documents. |
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
|
New This Week
|
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
CASE SPOTLIGHTS
LUBRICLEUM SDN BHD v. PP [2026] 9 CLJ 627 Where a court exercises its discretionary power of forfeiture over seized property, the disclosure of a known third-party registered owner triggers an absolute statutory and constitutional obligation to issue notice and conduct a 'show cause' inquiry under art. 13 of the Federal Constitution. This protective framework cannot be bypassed via a plea bargain under s. 172C of the Criminal Procedure Code, as its binding effect is strictly confined to the immediate parties and cannot divest the rights of an uninvolved third party. Under the principle of nemo dat quod non habet, an accused holding mere temporary possession lacks the legal standing to surrender property they do not own, while the prosecution remains bound by a duty of full and frank disclosure. Consequently, ordering forfeiture in a procedural vacuum without affording a known owner the right to be heard (audi alteram partem) constitutes a manifest miscarriage of justice that completely vitiates the order. CRIMINAL PROCEDURE: Revision - Application for - Order of forfeiture made against vehicles owned by third party - Third party not summoned or given opportunity to show cause - Whether breach of rules of natural justice and audi alteram partem - Whether contravention of art. 13 of Federal Constitution - Whether there was miscarriage of justice - Whether fit and proper case for intervention - Whether matter ought to be remitted to lower court for fresh inquiry - Criminal Procedure Code, s. 325 - Control of Supplies Act 1961, s. 21 CRIMINAL PROCEDURE: Forfeiture - Order of forfeiture - Order of forfeiture made against vehicles owned by third party - Third party not summoned or given opportunity to show cause - Whether breach of rules of natural justice and audi alteram partem - Whether contravention or art. 13 of Federal Constitution CRIMINAL PROCEDURE: Forfeiture - Seized vehicles - Order of forfeiture made against vehicles owned by third party - Third-party ownership disclosed via Road Traffic Department search - Whether court under statutory duty to cause notice to be served on known owner - Whether lower court erred in ordering forfeiture without 'show cause' inquiry - Criminal Procedure Code, s. 413(2) CRIMINAL PROCEDURE: Plea of guilty - Plea bargain agreement between prosecution and accused - Binding effect - Forfeiture of property included in plea bargain agreement - Accused had mere possession of vehicles but was not registered owner - Whether plea bargain could divest or compromise substantive constitutional property rights of uninvolved third party - Application of principle of nemo dat quod non habet - Criminal Procedure Code, s. 172C APPEAL UPDATES
LATEST CASESLegal Network Series
CLJ 2026 Volume 9 (Part 3) (i) In determining the forum non conveniens within cross-border matrimonial disputes, the best interests of the child - underpinned by the United Nations Convention on the Rights of the Child 1995 - must serve as the paramount and overriding consideration. This is particularly true where the children's educational, medical, and emotional attachments, coupled with the practical enforceability of subsequent custody orders, establish an overwhelming connection to a specific foreign jurisdiction. (ii) Any extraterritorial service of court processes via electronic means that circumvents or violates the mandatory domestic laws of the receiving State fundamentally breaches O. 11 r. 5(2) and (3) of the Rules of Court 2012 ('ROC'). Because such non-compliant service directly infringes upon state sovereignty and undermines international comity, it constitutes a fundamental, structural defect going directly to jurisdiction. Such an illegality cannot be cured under O. 1A and O. 2 r. 1(1) of the ROC, rendering the purported service wholly void. FAMILY LAW | CIVIL PROCEDURE
FAMILY LAW: Divorce - Jurisdiction - Forum non conveniens - Marriage solemnised in Malaysia under Law Reform (Marriage and Divorce) Act 1976 - Divorce proceedings commenced by wife in Singapore and husband in Malaysia - Family relocated to Singapore but husband returned to reside and trade in Malaysia - Whether Malaysian High Court or Singapore Family Justice Court natural and appropriate forum - Factors to consider - Special needs of children residing in Singapore - Balance of convenience and connection to jurisdiction CIVIL PROCEDURE: Service - Service out of jurisdiction - Ex parte leave - Challenge to validity of service - Grant of ex parte leave by High Court - Service of divorce cause papers in Singapore - Requirement of personal service or registered post under Singapore Family Justice Rules 2014 ('FJR') - Substituted service via electronic means - Conditions precedent - Whether service by electronic means permissible without explicit order for substituted service - Rules of Court, O. 11 rr. 5(2), 5(3) - Family Justice Rules 2014 (Singapore), rr. 48(1), 50(1), 901(1), 901(3), 901(4 ) CIVIL PROCEDURE: Non-compliance with rules - Curing of irregularities - Purported service of cause papers via email and WhatsApp out of jurisdiction - Failure to comply with mandatory provisions of O. 11 r. 5(2) dan (3) of Rules of Court 2012 - Whether non-compliance could be cured under O. 1A and O. 2 r. 1(1) of Rules of Court 2012 - Whether prejudice occasioned to opposing party - Whether breach went to root of jurisdiction rendering service incurably defective - Rules of Court 2012, O. 1A, O. 2 r. 1(1), O. 11 r. 5(2), (3)
Hashim Hamzah CJ (Malaya)
(i) Where a lender receives a revised development proposal with supporting financial projections, raises no objections to its commercial viability, and allows the borrower to act on the assumption that it forms the operational basis of the project, the lender is estopped from arguing that losses derived from the revised proposal are unforeseeable or outside the parties' reasonable contemplation under s. 74 of the Contracts Act 1950; (ii) Loss of profits for a housing development project is properly assessed using the conventional formula of gross development value (GDV) minus gross development cost (GDC), established through reliable, updated factual and expert evidence. BANKING | CONTRACT
BANKING: Islamic banking - Financing facilities - Bridging facilities - Islamic financing facilities granted for housing development project - Wrongful termination of facilities - Substantial component of funding expected from purchasers and progressive drawdowns - Lender withheld consent to land subdivision - Whether lender's conduct impeded regulatory approvals and project progress - Whether wrongful termination effective cause of project's failure and loss of profits CONTRACT: Damages - Breach - Loss of profits - Wrongful termination of financing facilities - Quantum and assessment - Developer's loss of profits - Calculation based on revised development proposal - Reliability of valuation and costing evidence - Whether award based on concrete expert evidence and party admissions - Whether lender estopped from asserting losses unforeseeable or outside parties' reasonable contemplation - Whether deductions for income tax properly applied to net loss of profits award - Contracts Act 1950, s. 74
Ismail Brahim JCA
In medical negligence litigation, liability must be assessed strictly on the balance of probabilities without imposing a heightened burden of proof. Courts cannot draw an adverse inference where evidence was not actually withheld, nor can they decide unraised issues in violation of natural justice. Unjustified non-compliance with established clinical protocols that materially contributes to an injury establishes liability, and contemporaneous medical records prevail over late oral contradictions. Finally, trial judges must provisionally assess damages even when dismissing a claim on liability. TORT | EVIDENCE | DAMAGES
TORT: Negligence - Medical negligence - Duty of care and standard of care - Breach - Child suing through mother - Allegation that tortfeasors negligent in managing mother's obstetric care and child's subsequent neonatal care - Child suffered from brain damage, resulting in spastic quadriplegic cerebral palsy with epilepsy and global developmental delay - Whether there was deviation from mandated protocol - Contemporaneous medical records recording 'foul smelling liquor' disavowed by doctor at trial as mistake - Weight to be attached to contemporaneous records vis-à-vis late oral testimony - Whether breaches of duty caused or materially contributed to irreversible brain damage - Whether alleged tortfeasors liable EVIDENCE: Standard of proof - Medical negligence - Child suing through mother - Allegation that tortfeasors negligent in managing mother's obstetric care and child's subsequent neonatal care - Child suffered from brain damage, resulting in spastic quadriplegic cerebral palsy with epilepsy and global developmental delay - Trial judge required 'conclusive, strict and affirmative' proof and 'high degree of probability' - Whether trial judge applied standard higher than balance of probabilities - Whether fundamental misdirection vitiating findings on liability - Evidence Act 1950, s. 114(g) EVIDENCE: Adverse inference - Non-production of document - Allegation that tortfeasors negligent in managing mother's obstetric care and child's subsequent neonatal care - Child suffered from brain damage, resulting in spastic quadriplegic cerebral palsy with epilepsy and global developmental delay - Allegation that there was non-production of antenatal records and ultrasound scans - Documents disclosed by opposing party and before court - Whether condition precedent of withholding or suppression of evidence established - Whether trial judge erred in drawing adverse inference - Evidence Act 1950, s. 114(g) DAMAGES: Assessment - Duty of trial judge - Claim for medical negligence - Dismissal of action on liability - Failure of trial judge to assess damages provisionally despite evidence led - Whether trial judge had duty to assess damages despite dismissal of action on liability Supang Lian JCA
Execution proceedings conclude upon the granting of an execution order, leaving no pending proceedings in which a party may intervene under O. 15 r. 6 of the Rules of Court 2012. An application to intervene filed after such completion, especially when accompanied by an unreasonable and unaccounted delay, will fail to satisfy the prerequisite elements for leave to intervention. A third party simply cannot be granted leave to intervene in an execution action where there are no ongoing or pending proceedings left to intervene in. CIVIL PROCEDURE
CIVIL PROCEDURE: Intervention - Application for leave to intervene - Execution proceedings - Application to set aside prohibitory order and order for sale - Proposed intervener claiming beneficial ownership under uncompleted sale and purchase agreement - Order for sale granted and auction sale executed - Whether execution proceedings completed - Whether there were any ongoing proceedings left for proposed intervener to intervene in - Whether court functus officio - Whether there was inordinate and unaccounted delay in filing application - Whether prerequisite elements under O. 15 r. 6(2)(b) of Rules of Court 2012 satisfied
Maslinda Mohd Ainal J
(i) Contractual interpretation and the ascertainment of the parties' objective intentions require examining the agreement in its entirety, alongside contemporaneous documents executed in the ordinary course of business. Such contemporaneous documentation provides a more reliable guide to the parties' true intentions than post-dispute explanations or isolated readings of single contractual clauses; (ii) A company is bound by communications and documentation received by its directors, officers, or authorised representatives acting within the scope of their employment, and cannot subsequently deny knowledge of ordinary business communications transmitted to its management; (iii) A stakeholder's primary obligation is to objectively administer the stakeholder arrangement in accordance with the established contractual mechanism and any contemporaneous agreements. A stakeholder is not tasked with adjudicating competing proprietary claims or altering established commercial arrangements between the parties. CONTRACT | LEGAL PROFESSION
CONTRACT: Agreement - Housing development agreement - Construction of contract and intention of parties - Parties entered into contract for development agreement for affordable housing - Failure to apportion land cost - Stakeholder released balance judgment sum to turnkey contractor - Whether contemporaneous letter of undertaking showed intention and payment mechanism - Whether contemporaneous business records reliable - Whether company bound by communications received by authorised representatives - Whether company could deny knowledge of ordinary business communications LEGAL PROFESSION: Stakeholder - Duties - Breach - Administration of stakeholder arrangement - Parties entered into contract for development agreement for affordable housing - Monies paid out to turnkey contractor pursuant to contemporaneous agreement mechanism - Competing claims over judgment sum - Whether stakeholder required to adjudicate proprietary claims or alter established arrangements - Whether stakeholder acted properly and impartially
Shamsul Bahrin Abdul Manaf JC
(i) Where counsel affirms an affidavit deposing to direct personal knowledge of contested, substantive events, particularly where counsel's personal observation forms the best evidence of those facts, that counsel ceases to function merely as an advocate and becomes a primary factual witness. Under r. 28(a) of the Legal Profession (Practice and Etiquette) Rules 1978, counsel shall not appear if there is a real likelihood that their evidence will be required on a material and disputed question of fact; (ii) Disqualification of an advocate under r. 28(a) extends to their entire firm where the conflict is structural and uncontainable. Where the disqualified counsel is the principal whose personal involvement and narrative permeate the matter, any associate or other advocate within the same firm acts under his/her direction and shares access to that contested narrative, rendering the entire firm unable to maintain the requisite independence required for representation. LEGAL PROFESSION
LEGAL PROFESSION: Counsel - Disqualification - Counsel affirmed affidavit claiming direct personal knowledge of disputed substantive facts - Whether counsel turned into primary material witness - Whether there was real likelihood that counsel's evidence would be required - Whether continued representation compatible with rule and integrity of court proceedings - Whether disqualification extended to entire law firm - Whether firm disqualified from acting for client - Legal Profession (Practice and Etiquette) Rules 1978, r. 28(a)
Nixon Kennedy Kumbong JC
A trial court cannot suo motu alter a fundamental element of a charge, such as the material date of the offence, to cure a deficiency in the prosecution's case. The power under s. 158 of the Criminal Procedure Code must be read in tandem with s. 173(h) and cannot be exercised so as to assume the prosecution's function, particularly where the amendment is made after the defence has closed its case and causes prejudice to the accused. Such an exercise of judicial power undermines the constitutional division of powers under art. 145(3) of the Federal Constitution. CRIMINAL PROCEDURE
CRIMINAL PROCEDURE: Charge - Amendment - Trial judge suo motu amended charge after conclusion of defence case - Material date substituted from specific date to three-day period - Whether trial judge empowered to amend fundamental element of charge to cure deficiency in prosecution's case - Whether amendment permissible in absence of prosecution application - Whether amendment prejudiced accused who had conducted defence and relied on alibi based on original date - Criminal Procedure Code, ss. 158 & 173(h) - Federal Constitution, art. 145(3) CRIMINAL PROCEDURE: Charge - Amended charge - Trial judge suo motu amended charge after conclusion of defence case - Material date substituted from specific date to three-day period - No evidence adduced in respect of substituted dates - Whether prosecution established prima facie case on amended charge - Whether conviction null - Criminal Procedure Code, s. 173(h)(ii) CRIMINAL PROCEDURE: Defence - Alibi - Statutory notice of alibi served in respect of date stated in original charge - Charge subsequently amended suo motu to substitute material date with three-day period after conclusion of defence case - Whether amendment rendered alibi nugatory and prejudiced accused - Whether alibi could be rejected where prosecution adduced no evidence on substituted dates - Criminal Procedure Code, s. 402A - Federal Constitution, art. 5(1) CRIMINAL PROCEDURE: Witness - Child witness - Evidence of five-year-old victim in sexual offence - Reliability and credibility - Whether corroborated by PW1 who had no personal knowledge of alleged offence - Material inconsistencies in PW1's evidence - Failure to produce child interview centre recording and transcript - Whether adverse inference arose under s. 114(g) of Evidence Act 1950 - Whether evidence sufficient to sustain conviction
Johan Lee Kien How J
An order for security for costs against a wound-up defendant proceeding on a genuine counterclaim will be refused where the quantum sought is disproportionate, the application is used tactically to extinguish a bona fide claim, and alternative avenues for costs recovery or set-off exist without causing real prejudice to the applicant. CIVIL PROCEDURE | COMPANY LAW
CIVIL PROCEDURE: Security for costs - Application for - Defendant company wound up - Winding-up court granted leave for defendant's director to prosecute counterclaim - Application by plaintiff for security for costs in sum of RM100,000 - Whether counterclaim bona fide and possessed reasonable prospects of success - Whether quantum sought proportionate to remaining trial work - Whether application tactical use of application to stifle genuine counterclaim - Whether practical risk to plaintiff minimal - Whether potential recourse against non-party driving litigation relevant - Whether application ought to be allowed - Companies Act 2016, s. 580A COMPANY LAW: Winding up - Counterclaim by wound-up company - Application for security for costs against wound-up defendant - Sanction obtained from Insolvency Department by director/contributory to defend action and prosecute counterclaim - Whether court ought to exercise discretion to order security - Companies Act 2016, s. 580A
Arziah Mohamed Apandi J
(i) Section 37 of the Arbitration Act 2005 does not confer appellate jurisdiction over errors of law or fact. The court will not re-evaluate the evidence or revisit the merits of an arbitral award unless it shocks the conscience of the court or is so manifestly unjust as to violate basic notions of morality and justice; (ii) A challenge based on natural justice or public policy must be properly pleaded and supported by clear evidence of prejudice or an infringement of fundamental principles. A party that, with knowledge of the alleged irregularity, participates in the arbitration without a timely objection, waives its right to raise the complaint subsequently. ARBITRATION
ARBITRATION: Award - Challenge against arbitration award - Application to set aside arbitral award - Whether errors of law and fact constituted grounds for setting aside - Whether arbitrator exceeded jurisdiction - Whether breach of natural justice and public policy established - Whether challenge based on alleged conflict of interest properly pleaded - Whether applicant waived right to object - Whether court could revisit arbitrator's factual findings - Arbitration Act 2005, ss. 37 & 38
Yusrin Faidz Yusoff J
ARTICLESLNS Article(s)
LEGISLATION HIGHLIGHTSPrincipal Acts
Amending Acts
PU(A)
PU(B)
Legislation Alert Updated
Revoked
|
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
|