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Issue #5/2018 01 February 2018

FAR EAST HOLDINGS BHD & ANOR v.
MAJLIS UGAMA ISLAM DAN ADAT RESAM MELAYU PAHANG & OTHER APPEALS [2018] 1 CLJ 693
FEDERAL COURT, PUTRAJAYA
ZULKEFLI AHMAD MAKINUDIN PCA, RAMLY ALI FCJ, AZAHAR MOHAMED FCJ, ZAHARAH IBRAHIM FCJ JEFFREY TAN FCJ
[CIVIL APPEALS NO: 02-19-04-2016(W), 02(f)-20-04-2016(W) & 02(f)-21-04-2016(W)]
15 NOVEMBER 2017

ARBITRATION: Agreement – Construction – Strict construction – Whether court to adopt plain and ordinary meaning – Whether agreement clear and unambiguous – Whether arbitrator right in construction of agreement – Whether 'questions of law arising out of the award' merited court's intervention under s. 42 of Arbitration Act 2005

ARBITRATION: Award – Grounds for setting aside award – Applicable test for court's intervention – Whether common law test of 'error on the face of award' applicable under Arbitration Act 2005 ('AA 2005') – Whether tests used under Arbitration Act 1952 applicable – Whether court's intervention only where so provided under AA 2005 – Whether AA 2005 contemplates minimal intervention – Whether court could intervene only in manner prescribed by Model Law – Arbitration Act 2005, s. 42

ARBITRATION: Award – Question of law – Reference under s. 42(1) of Arbitration Act 2005 – Whether party may only refer 'any question of law arising out of an award' – 'Question of law' – Whether defined – Whether s. 42 only permits reference on discrete question of law – Whether parties bound by findings of fact by arbitrator – Whether court has jurisdiction to deal with questions of fact – Arbitration Act 2005, s. 42

ARBITRATION: Arbitrator – Jurisdiction – Question of law – Reference under s. 42(1) of Arbitration Act 2005 – Whether arbitrator remains master of facts – Whether party may only refer 'any question of law arising out of an award' – 'Question of law' – Whether defined – Whether s. 42 only permits reference on discrete question of law – Whether parties bound by findings of fact by arbitrator – Whether court has jurisdiction to deal with questions of fact – Arbitration Act 2005, s. 42

Legal Network Series

CLJ 2018 Volume 1 (Part 6)

FEDERAL COURT

Far East Holdings Bhd & Anor v. Majlis Ugama Islam Dan Adat Resam Melayu Pahang & Other Appeals
Zulkefli Ahmad Makinudin PCA, Ramly Ali, Azahar Mohamed, Zaharah Ibrahim, Jeffrey Tan FCJJ
(Arbitration - Agreement - Construction - Grounds for setting aside award - Applicable test for court's intervention - Question of law - Whether defined - Whether party may only refer 'any question of law arising out of an award') [2018] 1 CLJ 693 [FC]

COURT OF APPEAL

Abdul Manan Hassan v. Hassan Marsom & Ors
Tengku Maimun Tuan Mat, Abdul Rahman Sebli, Zaleha Yusof JJCA
(Criminal Procedure; Tort - Trial - Conduct of proceedings - Agreement between parties that decision of earlier suit bind court on subsequent suit - Whether parties bound by agreement) [2018] 1 CLJ 769 [CA]

Hock Peng Realty Sdn Bhd v. Ting Sie Chung & Another Appeal
David Wong Dak Wah, Hamid Sultan Abu Backer, Umi Kalthum Abdul Majid JJCA
(Tort - Defamation - Absolute privilege - Prohibitory order - Whether documents instrumental for institution of court proceedings fall under category of absolute privilege - Abuse of process of court - Whether cause of action sustainable) [2018] 1 CLJ 776 [CA]

Ketua Polis Daerah Shah Alam & Ors v. Nor Azura Amzah & Anor And Another Appeal
Mohd Zawawi Salleh, Vernon Ong Lam Kiat, Asmabi Mohamad JJCA
(Tort - Damages - Award - Whether contributory negligence a defence - Misfeasance in public office - Whether tort of public misfeasance proved) [2018] 1 CLJ 792 [CA]

SUBJECT INDEX

ARBITRATION

Agreement - Construction - Strict construction - Whether court to adopt plain and ordinary meaning - Whether agreement clear and unambiguous - Whether arbitrator right in construction of agreement - Whether 'questions of law arising out of the award' merited court's intervention under s. 42 of Arbitration Act 2005
Far East Holdings Bhd & Anor v. Majlis Ugama Islam Dan Adat Resam Melayu Pahang & Other Appeals
(Zulkefli Ahmad Makinudin PCA, Ramly Ali, Azahar Mohamed, Zaharah Ibrahim, Jeffrey Tan FCJJ) [2018] 1 CLJ 693 [FC]

Arbitrator - Jurisdiction - Question of law - Reference under s. 42(1) of Arbitration Act 2005 - Whether arbitrator remains master of facts - Whether party may only refer 'any question of law arising out of an award' - 'Question of law' - Whether defined - Whether s. 42 only permits reference on discrete question of law - Whether parties bound by findings of fact by arbitrator - Whether court has jurisdiction to deal with questions of fact - Arbitration Act 2005, s. 42
Far East Holdings Bhd & Anor v. Majlis Ugama Islam Dan Adat Resam Melayu Pahang & Other Appeals
(Zulkefli Ahmad Makinudin PCA, Ramly Ali, Azahar Mohamed, Zaharah Ibrahim, Jeffrey Tan FCJJ) [2018] 1 CLJ 693 [FC]

Award - Grounds for setting aside award - Applicable test for court's intervention - Whether common law test of 'error on the face of award' applicable under Arbitration Act 2005 ('AA 2005') - Whether tests used under Arbitration Act 1952 applicable - Whether court's intervention only where so provided under AA 2005 - Whether AA 2005 contemplates minimal intervention - Whether court could intervene only in manner prescribed by Model Law - Arbitration Act 2005, s. 42
Far East Holdings Bhd & Anor v. Majlis Ugama Islam Dan Adat Resam Melayu Pahang & Other Appeals
(Zulkefli Ahmad Makinudin PCA, Ramly Ali, Azahar Mohamed, Zaharah Ibrahim, Jeffrey Tan FCJJ) [2018] 1 CLJ 693 [FC]

Award - Question of law - Reference under s. 42(1) of Arbitration Act 2005 - Whether party may only refer 'any question of law arising out of an award' - 'Question of law' - Whether defined - Whether s. 42 only permits reference on discrete question of law - Whether parties bound by findings of fact by arbitrator - Whether court has jurisdiction to deal with questions of fact - Arbitration Act 2005, s. 42
Far East Holdings Bhd & Anor v. Majlis Ugama Islam Dan Adat Resam Melayu Pahang & Other Appeals
(Zulkefli Ahmad Makinudin PCA, Ramly Ali, Azahar Mohamed, Zaharah Ibrahim, Jeffrey Tan FCJJ) [2018] 1 CLJ 693 [FC]

CRIMINAL PROCEDURE

Trial - Conduct of proceedings - False imprisonment - Liability of - Two suits for false imprisonment brought against respondents - Agreement between parties that decision of earlier suit would bind court on issue of liability for false imprisonment - Earlier suit found respondents guilty of false imprisonment - Whether respondents estopped from denying liability for wrongful detention - Whether parties bound by agreement
Abdul Manan Hassan v. Hassan Marsom & Ors
(Tengku Maimun Tuan Mat, Abdul Rahman Sebli, Zaleha Yusof JJCA) [2018] 1 CLJ 769 [CA]

TORT

Cause of action - Abuse of process of court - Parties entered into consent order for assessment of damages - Defendant obtained prohibitory order against plaintiff's land - Whether in breach of agreed terms - Failure to serve papers on plaintiff - Whether court process used for unlawful purpose and not for actual purpose intended to achieve justice - Whether cause of action sustainable
Hock Peng Realty Sdn Bhd v. Ting Sie Chung & Another Appeal
(David Wong Dak Wah, Hamid Sultan Abu Backer, Umi Kalthum Abdul Majid JJCA) [2018] 1 CLJ 776 [CA]

Damages - Award - Claim for assault and battery and alternatively, negligence and public misfeasance - Police personnel fired gunshots at car driven by 14-year old during car chase - Deceased died of gunshot wound - Claim by deceased's joint administratrix - Whether there was contributory negligence by deceased - Whether contributory negligence a defence - Whether sum awarded appropriate - Whether sum awarded fair and reasonable
Ketua Polis Daerah Shah Alam & Ors v. Nor Azura Amzah & Anor And Another Appeal
(Mohd Zawawi Salleh, Vernon Ong Lam Kiat, Asmabi Mohamad JJCA) [2018] 1 CLJ 792 [CA]

Defamation - Absolute privilege - Prohibitory order - Defendant obtained prohibitory order against plaintiff's land - Whether there were false and malicious statements in prohibitory order - Whether documents instrumental for instituting court proceedings fall under category of absolute privilege - Whether cause of action for defamation must fail in limine
Hock Peng Realty Sdn Bhd v. Ting Sie Chung & Another Appeal
(David Wong Dak Wah, Hamid Sultan Abu Backer, Umi Kalthum Abdul Majid JJCA) [2018] 1 CLJ 776 [CA]

False imprisonment - Liability of - Trial - Two suits for false imprisonment brought against respondents - Agreement between parties that decision of earlier suit would bind court on issue of liability for false imprisonment - Earlier suit found respondents guilty of false imprisonment - Whether respondents estopped from denying liability for wrongful detention - Whether parties bound by agreement
Abdul Manan Hassan v. Hassan Marsom & Ors
(Tengku Maimun Tuan Mat, Abdul Rahman Sebli, Zaleha Yusof JJCA) [2018] 1 CLJ 769 [CA]

Misfeasance - Misfeasance in public office - Claim for assault and battery and alternatively, negligence and public misfeasance - Police personnel fired gunshots at car driven by 14-year old during car chase - Deceased died of gunshot wound - Claim by deceased's joint administratrix - Whether tort of public misfeasance proved
Ketua Polis Daerah Shah Alam & Ors v. Nor Azura Amzah & Anor And Another Appeal
(Mohd Zawawi Salleh, Vernon Ong Lam Kiat, Asmabi Mohamad JJCA) [2018] 1 CLJ 792 [CA]

LNS Article(s)

1. WAIVER OF RIGHT OF RECOURSE AGAINST ARBITRAL AWARD: A GLOBAL PERSPECTIVE ^{[Read excerpt]}
   DR HAMID SULTAN BIN ABU BACKER* ARUN KASI** [2018] 1 LNS(A) xi

[2018] 1 LNS(A) xi

MALAYSIA

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WAIVER OF RIGHT OF RECOURSE AGAINST ARBITRAL AWARD: A GLOBAL PERSPECTIVE

DR HAMID SULTAN BIN ABU BACKER*
ARUN KASI**

Abstract^[1]

This article considers the concept of waiver in arbitration and the relationship between Article V of the New York Convention and Articles 34 and 36 of the UNCITRAL Model Law 1985. Further, it asserts that (i) the Convention does not permit a foreign arbitral award to be set aside for error of fact and/or law but the award can be set aside if the arbitral process was defective on one of the grounds set out in Article V of the Convention; (ii) Article V is a Convention obligation for all Contracting States to ensure compliance through their State courts to preserve the integrity of the arbitration process at the enforcement stage; (iii) any attempt by a waiver clause in an arbitration agreement or a waiver provision incorporated into the parties' agreement through institutional rules to avoid the challenge under Article V will be in breach of the Convention and in consequence the enforcement court would be obliged not to recognise the waiver; (iv) the Model Law attempts to provide a procedural mechanism to ensure an award made at the seat of the arbitration, in the case of international commercial arbitration,^[2] is not in breach of any of the grounds in Article V in order that it will be enforceable in the State of the seat or in another State; (v) where the enforcement is in the State of the seat, Article 34 repeats the provision of Article V of the Convention to ensure the Convention obligation of the State is met; and (vi) when a foreign award is sought to be enforced in a Model Law State other than the State of the seat, Article 36 of the Model Law repeats Article V of the Convention to ensure that the Convention obligation of the State is met.

. . .

* Judge of the Court of Appeal, Malaysia; author of International Arbitration with Commentary to Malaysian Arbitration Act 2005, Kuala Lumpur, Janab Law Publications, 2016.

** Advocate and Solicitor of High Court of Malaya; author of Arbitration: Stay of Court Proceedings and Anti-Suit Injunctions, Kuala Lumpur, CLJ Publication, 2014.

2. SUSTAINABLE CONSTRUCTION AND DEVELOPMENT PRACTICE IN HILLSLOPE ENVIRONMENT: AN EXAMINATION INTO EXISTING HILLSLOPE REGULATORY GUIDELINES IN THE FEDERAL TERRITORY OF KUALA LUMPUR, MALAYSIA* ^{[Read excerpt]}
   JEONG CHUN PHUOC** ASSOCIATE PROFESSOR DR AZMI SHAROM*** [2018] 1 LNS(A) ix

[2018] 1 LNS(A) ix

MALAYSIA

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SUSTAINABLE CONSTRUCTION AND DEVELOPMENT PRACTICE IN HILLSLOPE ENVIRONMENT:
AN EXAMINATION INTO EXISTING HILLSLOPE REGULATORY GUIDELINES IN THE FEDERAL TERRITORY OF KUALA LUMPUR, MALAYSIA*

JEONG CHUN PHUOC**
ASSOCIATE PROFESSOR DR AZMI SHAROM***

ABSTRACT

The United Nations 17 Sustainable Development Goals (SDG) advocates for a sustainable development model to be implemented to achieve a holistic scale for green development and construction practices. In Malaysia, the vision of a Sustainable Development Model (SD) has been implemented in many phases/stages at the local levels from a hill slope development and construction perspective. This is particularly true in the Federal Territory of Kuala Lumpur vide implementing guidelines for hill slope development/construction activities. The recent Penang Tanjung Bungah (2017)^[1] tragedy (reminiscent of hillslope tragedies involving Highland Towers (1993), Bukit Antarabangsa (2008), and numerous hill slopes incidents), have raised renewed concerns on the need for a re-examination into the substantive provisions of hillslope construction and development guidelines as implemented in Kuala Lumpur i.e., Development Planning Guidelines In Hill And Slope Area for the Federal Territory of Kuala Lumpur 2010 ('GPWPKL 2010'). The objectives are to identify the scope, nature and adequacy of compliance by developers, contractors and property owners (and stakeholders) with GPWPKL 2010.

. . .

* This is extracted from the PhD thesis undertaken at Faculty of Law, University of Malaya, Malaysia under the supervision and guidance of AP Dr Azmi Sharom.

** Faculty of Law, University of Malaya, Malaysia. Email: jeongchunphuoc@gmail.com.

*** Faculty of Law, University of Malaya, Malaysia. Email: azmi.sharom@gmail.com.

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