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Legal Network Series

CLJ 2016 Volume 8 (Part 3)

FEDERAL COURT

Dato' Tan Chin Woh v. Dato' Yalumallai V Muthusamy
Arifin Zakaria CJ, Zulkefli Ahmad Makinudin CJ (Malaya), Richard Malanjum CJ (Sabah & Sarawak), Suriyadi Halim Omar, Abu Samah Nordin FCJJ
(Civil Procedure; Jurisdiction - Appeal - Powers and jurisdiction of Court of Appeal - Libel - Defence of qualified privilege) [2016] 8 CLJ 293 [FC]

COURT OF APPEAL

Akay Holdings Sdn Bhd v. Arch Reinsurance Ltd
David Wong Dak Wah, Umi Kalthum Abdul Majid, Zamani A Rahim JJCA
(Contract - Agreement - Terms - Rights under charge - Whether conditional upon reference to arbitration) [2016] 8 CLJ 305 [CA]

Anuar Abu Bakar v. Samsuri Booyman
Abang Iskandar, Nallini Pathmanathan, Zamani A Rahim JJCA
(Contract - Agreement - Joint venture agreement - Validity) [2016] 8 CLJ 317 [CA]

Kerajaan Malaysia v. Ambiga Sreenevasan & Ors
Rohana Yusuf, Varghese George, Mary Lim JJCA
(Civil Procedure; Police; Tort; Statutory Interpretation, Words & Phrases - Action - Government proceedings - Peaceful assembly - Whether police acted within authority - Damages - Unlawful arrest and detention of participants - Section 6(2)(g) Peaceful Assembly Act 2012 - Section 3 Government Proceedings Act 1956) [2016] 8 CLJ 330 [CA]

Soo Cheng Lin v. Dr Kok Choong Seng & Anor And Another Appeal
David Wong Dak Wah, Umi Kalthum Abdul Majid, Hasnah Mohammed Hashim JJCA
(Tort - Negligence - Medical negligence - Claim for medical expenses paid by insurer - Vicarious liability - Treatment in private hospital - Whether hospital owed a non-delegable duty of care to claimant) [2016] 8 CLJ 368 [CA]

HIGH COURT

Hock Peng Realty Sdn Bhd v. Ting Sie Chung
Rhodzariah Bujang J
(Tort - Defamation - Absolute privilege - Whether issuance of prohibitory order gave rise to twin actions of defamation and abuse of court process) [2016] 8 CLJ 393 [HC]

Sidek Ibrahim & Satu Lagi lwn. Ibnu Asyakir Mohd Ghazali & Satu Lagi
Hassan Abdul Ghani PK
(Ganti Rugi - Kemalangan - Liabiliti - Sama ada bayaran saman satu pengakuan salah - Kuantum - Sama ada award yang diberi munasabah) [2016] 8 CLJ 406 [HC]

Tan Pooi Yee v. Ketua Pengarah Jabatan Pendaftaran Negara
S Nantha Balan J
(Civil Procedure; Constitutional Law - Declaration - Plaintiff born as woman underwent reassignment surgery - Whether medical evidence conclusively established that plaintiff was a male - Fundamental liberties - Right to life) [2016] 8 CLJ 427 [HC]

SUBJECT INDEX

CIVIL PROCEDURE

Action - Government proceedings - Peaceful assembly - Damage to police vehicles - Suit against organisers for loss suffered by Government - Whether organisers in breach of statutory duty - Whether Government had right to sue and claim for damages - Whether 'police' fell within meaning of 'person who has interests' - Whether action maintainable in law - Peaceful Assembly Act 2012, ss. 3, 4, 5 & 6(2)(g) - Government Proceedings Act 1956, ss. 3, 39
Kerajaan Malaysia v. Ambiga Sreenevasan & Ors
(Rohana Yusuf, Varghese George, Mary Lim JJCA) [2016] 8 CLJ 330 [CA]

Action - Tort - Unlawful arrest and detention - Assault by police - Claim against Government - Failure to identify tortfeasor responsible for alleged tort - No objection taken on non-compliance - Uncontroverted evidence on tortious act allowed to be adduced - Whether too late to object
Kerajaan Malaysia v. Ambiga Sreenevasan & Ors
(Rohana Yusuf, Varghese George, Mary Lim JJCA) [2016] 8 CLJ 330 [CA]

Appeal - Libel - Appeal to Court of Appeal - Defence of qualified privilege - Powers and jurisdiction of Court of Appeal - Whether could substitute defence as pleaded with that of absolute privilege which was never pleaded by defendant - Plaintiff not availed of opportunity to submit on substituted defence - Whether Court of Appeal acted contrary to rules of natural justice - Whether occasioning miscarriage of justice - Courts of Judicature Act 1964, s. 69(4) - Rules of the Court of Appeal 1994, r. 18(2)
Dato' Tan Chin Woh v. Dato' Yalumallai V Muthusamy
(Arifin Zakaria CJ, Zulkefli Ahmad Makinudin CJ (Malaya), Richard Malanjum CJ (Sabah & Sarawak), Suriyadi Halim Omar, Abu Samah Nordin FCJJ) [2016] 8 CLJ 293 [FC]

Declaration - Application for - Plaintiff born as woman underwent reassignment surgery - Whether medical evidence conclusively established that plaintiff was a male - Whether chromosomal requirement a criteria for determination of gender - Whether plaintiff satisfied threshold to be legally recognised as male person - Whether plaintiff's constitutional right to be accorded gender status medically determined - Federal Constitution, art. 5(1)
Tan Pooi Yee v. Ketua Pengarah Jabatan Pendaftaran Negara
(S Nantha Balan J) [2016] 8 CLJ 427 [HC]

Pleadings - Libel - Appeal to Court of Appeal - Defence of qualified privilege - Defence substituted by court with that of absolute privilege which was never pleaded by defendant - Whether Court of Appeal had misdirected itself - Power of appellate court to consider points not expressly taken in memorandum of appeal - Whether subject to paramount rule that parties were bound by their pleadings - Courts of Judicature Act 1964, s. 69(4) - Rules of the Court of Appeal 1994, r. 18(2)
Dato' Tan Chin Woh v. Dato' Yalumallai V Muthusamy
(Arifin Zakaria CJ, Zulkefli Ahmad Makinudin CJ (Malaya), Richard Malanjum CJ (Sabah & Sarawak), Suriyadi Halim Omar, Abu Samah Nordin FCJJ) [2016] 8 CLJ 293 [FC]

CONSTITUTIONAL LAW

Fundamental liberties - Right to life - Plaintiff born as woman underwent reassignment surgery - Whether medical evidence conclusively established that plaintiff was a male - Whether right to life encompassed plaintiff's right to live with dignity as male - Whether to be legally accorded judicial recognition as male - Federal Constitution, art. 5(1)
Tan Pooi Yee v. Ketua Pengarah Jabatan Pendaftaran Negara
(S Nantha Balan J) [2016] 8 CLJ [2016] 8 CLJ 427 [HC]

CONTRACT

Agreement - Joint venture agreement - Validity - Whether defendant as administrator and legal representative of estate has capacity to enter into agreement - Whether consent of other beneficiaries of estate obtained - Plaintiff complied with all terms stipulated in agreement - Whether defendant benefited from efforts made by plaintiff - Doctrine of estoppel - Whether applicable - Whether defendant obligated to transfer titles to plaintiff - Whether parties bound by terms of agreement - Contracts Act 1950, s. 38
Anuar Abu Bakar v. Samsuri Booyman
(Abang Iskandar, Nallini Pathmanathan, Zamani A Rahim JJCA) [2016] 8 CLJ 317 [CA]

Agreement - Terms - Subscription agreement and bond conditions secured by charge of lease - Default in repayment - Whether respondent entitled to exercise right under charge - Whether conditional upon reference to arbitration - Whether 'dispute' pursuant to agreements established - Whether terms breached - Whether action premature - Arbitration Act 2005, s. 10
Akay Holdings Sdn Bhd v. Arch Reinsurance Ltd
(David Wong Dak Wah, Umi Kalthum Abdul Majid, Zamani A Rahim JJCA) [2016] 8 CLJ 305 [CA]

JURISDICTION

Court of Appeal - Powers and jurisdiction - Whether could consider new points not expressly taken in memorandum of appeal - Whether exercise of power subject to overriding discretion to do justice - Whether subject to paramount rule that parties were bound by their pleadings - Courts of Judicature Act 1964, s. 69(4) - Rules of the Court of Appeal 1994, r. 18(2)
Dato' Tan Chin Woh v. Dato' Yalumallai V Muthusamy
(Arifin Zakaria CJ, Zulkefli Ahmad Makinudin CJ (Malaya), Richard Malanjum CJ (Sabah & Sarawak), Suriyadi Halim Omar, Abu Samah Nordin FCJJ) [2016] 8 CLJ 293 [FC]

POLICE

Arrest - Peaceful assembly - Arrest and detention of participants - Assault - Whether arrest unlawful - Whether police acted within authority - Whether facts and circumstances of case warranted police interference - Claimant suffered injuries whilst under police custody - Whether subjected to inhumane beatings and assault - Aggravated damages - Criminal Procedure Code, s. 23
Kerajaan Malaysia v. Ambiga Sreenevasan & Ors
(Rohana Yusuf, Varghese George, Mary Lim JJCA) [2016] 8 CLJ 330 [CA]

STATUTORY INTERPRETATION

Construction of statutes - Government proceedings - Suit against organisers of peaceful assembly - Government incurred loss due to conduct of assembly - Whether Peaceful Assembly Act 2012 conferred right on Government to sue and claim for damages - Section 3 Government Proceedings Act 1956 - Whether to be read subject to s. 39
Kerajaan Malaysia v. Ambiga Sreenevasan & Ors
(Rohana Yusuf, Varghese George, Mary Lim JJCA) [2016] 8 CLJ 330 [CA]

Construction of statutes - Section 6(2)(g) Peaceful Assembly Act 2012 - Organisers of peaceful assembly - Whether under duty to ensure that assembly would not cause damage to property - Responsibilities provided under Act - Whether legally binding on organisers
Kerajaan Malaysia v. Ambiga Sreenevasan & Ors
(Rohana Yusuf, Varghese George, Mary Lim JJCA) [2016] 8 CLJ 330 [CA]

TORT

Damages - Unlawful arrest and detention - Assault by police - Peaceful assembly - Whether police authorised to arrest and detain a person for purpose of preserving peace and tranquility - Whether police acted within authority - Whether arrest lawful - Claimant suffered injuries whilst under police custody - Whether subjected to inhumane beatings and assault - Aggravated damages - Criminal Procedure Code, s. 23
Kerajaan Malaysia v. Ambiga Sreenevasan & Ors
(Rohana Yusuf, Varghese George, Mary Lim JJCA) [2016] 8 CLJ 330 [CA]

Defamation - Absolute privilege - Land developer and landowner entered into agreement to develop land - Payment advanced by land developer to discharge charge on land but landowner defaulted in repayment - Land developer lodged caveats against several units of houses that landowner was entitled to - Caveats removed and landowner ordered to pay damages for wrongful lodgement - Parties entered into consent order that assessment of damages should proceed but payment of amount assessed should be stayed - Landowner obtained prohibitory order against parcels of lands - Whether prohibitory order obtained in good faith - Whether issuance of prohibitory order gave rise to twin actions of defamation and abuse of court process
Hock Peng Realty Sdn Bhd v. Ting Sie Chung
(Rhodzariah Bujang J) [2016] 8 CLJ 393 [HC]

Negligence - Medical negligence - Surgical procedure - Treatment in private hospital - Claim for medical expenses paid by insurer - Whether payment made by insurer under contract of insurance - Whether contractual agreement between claimant and insurance company independent of negligent medical act - Whether unjust enrichment - Whether claimant entitled to claim - Civil Law Act 1956, s. 28A(1)(a)
Soo Cheng Lin v. Dr Kok Choong Seng & Anor And Another Appeal
(David Wong Dak Wah, Umi Kalthum Abdul Majid, Hasnah Mohammed Hashim JJCA) [2016] 8 CLJ 368 [CA]

Negligence - Vicarious liability - Medical negligence - Surgical procedure - Treatment in private hospital - Whether claimant a patient dependent on protection of hospital against risk of injury - Whether hospital owed a non-delegable duty of care to claimant
Soo Cheng Lin v. Dr Kok Choong Seng & Anor And Another Appeal
(David Wong Dak Wah, Umi Kalthum Abdul Majid, Hasnah Mohammed Hashim JJCA) [2016] 8 CLJ 368 [CA]

WORDS & PHRASES

'ensure' - Peaceful Assembly Act 2012, s. 6(2)(g) - Meaning - Whether connoting imperative obligation - Whether only indicating preference
Kerajaan Malaysia v. Ambiga Sreenevasan & Ors
(Rohana Yusuf, Varghese George, Mary Lim JJCA) [2016] 8 CLJ 330 [CA]

INDEKS PERKARA

GANTI RUGI

Kemalangan - Kuantum - Rayuan - Penunggang motosikal cedera di kepala akibat dilanggar motokar - Sama ada kecederaan berlaku akibat kegagalan penunggang motosikal memakai topi keledar - Sama ada award yang diberi munasabah - Sama ada hakim mempertimbangkan semua keterangan dalam memberi award
Sidek Ibrahim & Satu Lagi lwn. Ibnu Asyakir Mohd Ghazali & Satu Lagi
(Hassan Abdul Ghani PK) [2016] 8 CLJ 406 [HC]

Kemalangan - Liabiliti - Versi berbeza antara pihak-pihak - Kedudukan kenderaan pihak-pihak - Keadaan tempat kejadian dan kerosakan pada kenderaan pihak-pihak - Versi yang lebih berkemungkinan - Sama ada bayaran saman satu pengakuan salah - Sama ada bayaran saman satu keterangan konklusif bagi menentukan darjah kecuaian - Darjah kecuaian pihak-pihak
Sidek Ibrahim & Satu Lagi lwn. Ibnu Asyakir Mohd Ghazali & Satu Lagi
(Hassan Abdul Ghani PK) [2016] 8 CLJ 406 [HC]

LNS Article(s)

1. A RE-LOOK AT THE LAWS ON RETRENCHMENT* ^{[Read excerpt]}
   WONG KIAN JUN [2016] 1 LNS(A) lxxxiii

[2016] 1 LNS(A) lxxxiii

MALAYSIA

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A RE-LOOK AT THE LAWS ON RETRENCHMENT*

WONG KIAN JUN

IN THIS ARTICLE, WONG KIAN JUN CONSIDERS THE LAWS OF RETRENCHMENT IN MALAYSIA.

Introduction

During uncertain times and shrinking profits, organisations may decide to reorganise their business structure in order to create a leaner workforce thereby reducing their operating costs to weather the impact of a slowing economy. Inevitably, the reorganisation would result in the retrenchment of its employees who are considered surplus to the needs of the organisation. With news of retrenchment exercises carried out in the financial, manufacturing and airline industries, we think it useful to restate the current position of the law in relation to retrenchment.

The right to reorganise the business left unquestioned

In a claim of unfair dismissal at the Industrial Court, the first hurdle the employer would need to overcome would be to show the basis of the reorganisation which led to the retrenchment exercise. Many reasons have been put forward and accepted by the Industrial Court such as losses, reduced profits, mechanisation, partial or full closure of business, outsourcing and many more, as a reason for the reorganisation. The fundamental principle that remains is that the law recognises the employer's right to reorganise the business in the way that it considers best as long as it is done in a bona fide manner.

. . .

* Published with kind permission of M/s Shearn Delamore & Co.

2. CAUSATION, REMOTENESS, SCOPE OF DUTY AND THE RUBENSTEIN DECISION* ^{[Read excerpt]}
   LOW KEE YANG** [2016] 1 LNS(A) lxxxiv

[2016] 1 LNS(A) lxxxiv

SINGAPORE

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CAUSATION, REMOTENESS, SCOPE OF DUTY AND THE RUBENSTEIN DECISION*

LOW KEE YANG**

Introduction

Oftentimes, based on the facts of a case, what justice requires is reasonably clear; yet, when the clever arguments of the defendant's lawyers have to be dealt with, the Judge faces difficult, even insurmountable obstacles as he seeks the legal justification for the result which he knows (or feels) is the correct one. Rubenstein v. HSBC^[1] is such a case.

The Rubenstein judgment is not easy to digest, for several reasons. First, the claims traversed statutory duty, tort of negligence and contract and, along with that, the perennial vexed question of whether different paths should lead to the same result. Second, the core of the decision involves related arguments and issues of causation, remoteness, foreseeability and scope of duty. Third, the reader would have been much assisted if the appeal Judge had been more systematic by segregating the discussion of the law from its application to the facts.

Facts

The facts of the case are quite straightforward. Rubenstein ("R") and his wife had sold their home and were waiting to buy another and, in the meantime, wanted to put the money (£1.25m) into a safe investment with a better yield than a fixed deposit. The time frame for the investment was a year.^[2]

. . .

* This article was originally published in the (February/2013) issue of the Singapore Law Gazette (www.lawgazette.com.sg), the official publication of the Law Society of Singapore, published by LexisNexis. Reproduced with permission.

** Associate Professor of Law, Singapore Management University. (In writing this case comment, I benefitted from discussions with Professor George Wei and Nicholas Liu, for which I am grateful. Deficiencies and errors are mine alone.)

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