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Issue #22/2019
30 May 2019

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New This Week

  1. Case(s) of the Week

    1. DATO' SRI MOHD NAJIB HJ ABDUL RAZAK v. PP [2019] 5 CLJ 293

    2. PP v. DATO' SRI MOHD NAJIB HJ ABDUL RAZAK [2019] 5 CLJ 355

  2. Appeal Updates

    1. Appeal Updates

  3. Latest Cases

    1. Legal Network Series

    2. CLJ 2019 Volume 5 (Part 3)

  4. Articles

    1. LNS Article(s)

  5. Legislation Highlights

    1. Principal Acts

    2. Amending Acts

    3. PU(A)

    4. PU(B)

    5. Legislation Alert

CASE(S) OF THE WEEK

DATO' SRI MOHD NAJIB HJ ABDUL RAZAK v. PP [2019] 5 CLJ 293
COURT OF APPEAL, PUTRAJAYA
ZABARIAH MOHD YUSOF JCA, RHODZARIAH BUJANG JCA, LAU BEE LAN JCA
[CRIMINAL APPEAL NO: W-05-72-02-2019]
25 MARCH 2019

CRIMINAL LAW: Charges – Criminal charges – Accused, former Prime Minister of Malaysia, charged with seven criminal charges relating to offences under Penal Code, Malaysian Anti-Corruption Commission Act 2009 and Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001 – Charges initially filed at Sessions Court but later transferred to High Court by way of transfer certificates issued by prosecution – Appeal against decision of High Court in allowing application by prosecution to withdraw transfer certificates – Whether appeal ought to be allowed

CRIMINAL PROCEDURE: Prosecution – Conduct of criminal prosecution – Transfer of charges – Appeal against decision of High Court allowing application by prosecution to withdraw transfer certificates – Accused, former Prime Minister of Malaysia, charged with seven criminal charges – Charges initially filed at Sessions Court but later transferred to High Court by way of transfer certificates issued by prosecution – Whether there was breach of natural justice – Whether Public Prosecutor’s power to withdraw transfer certificate spent when certificate was acted on – Whether Public Prosecutor was functus officio – Whether High Court’s reasoning flawed – Whether High Court Judge could transfer case back to himself – Whether appeal ought to be allowed – Criminal Procedure Code, ss. 417(1), (2) & 418A – Malaysian Anti-Corruption Commission Act 2009, s. 60

CRIMINAL PROCEDURE: Public Prosecutor – Powers and functions – Application by prosecution to withdraw transfer certificates – Accused, former Prime Minister of Malaysia, charged with seven criminal charges – Charges initially filed at Sessions Court but later transferred to High Court by way of transfer certificates issued by prosecution – Powers of Public Prosecutor to institute, conduct or discontinue any proceedings for offence – Whether Public Prosecutor has power to withdraw transfer certificates issued previously – Whether principle of functus officio applied to Public Prosecutor – Federal Constitution, s. 145(3)


PP v. DATO' SRI MOHD NAJIB HJ ABDUL RAZAK [2019] 5 CLJ 355
HIGH COURT MALAYA, KUALA LUMPUR
MOHD NAZLAN GHAZALI J
[CRIMINAL APPLICATION NO: WA-45-(2&3)-07-2018 & WA-45-5-08-2018]
15 FEBRUARY 2019CLJ_2019_5_355

CRIMINAL LAW: Charges – Criminal charges – Accused, former Prime Minister of Malaysia, charged with seven criminal charges relating to offences under Penal Code, Malaysian Anti-Corruption Commission Act 2009 and Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001 – Charges initially filed at Sessions Court but later transferred to High Court by way of transfer certificates issued by prosecution – Application by prosecution to withdraw transfer certificates – Whether application ought to be allowed

CRIMINAL PROCEDURE: Prosecution – Conduct of criminal prosecution – Transfer of charges – Application by prosecution to withdraw transfer certificates – Accused, former Prime Minister of Malaysia, charged with seven criminal charges – Charges initially filed at Sessions Court but later transferred to High Court by way of transfer certificates issued by prosecution – Whether withdrawal would result in fatal defect – Whether withdrawal could potentially vitiate and nullify entire proceedings – Whether withdrawal would mean proceedings ceased to exist – Criminal Procedure Code, ss. 254, 376(1), 417(1), (2) & 418A – Malaysian Anti-Corruption Commission Act 2009, s. 60

CRIMINAL PROCEDURE: Public Prosecutor – Powers and functions – Application by prosecution to withdraw transfer certificates – Accused, former Prime Minister of Malaysia, charged with seven criminal charges – Charges initially filed at Sessions Court but later transferred to High Court by way of transfer certificates issued by prosecution – Powers of Public Prosecutor to institute, conduct or discontinue any proceedings for offence – Whether Public Prosecutor has power to withdraw transfer certificates issued previously – Federal Constitution, s. 145(3) – Criminal Procedure Code, ss. 254 & 376(1)


APPEAL UPDATES  
  1. Sim Cheng Ho v. Fum Boo Ju & Anor [2018] 1 LNS 1824 (CA) overruling the High Court case of Sim Cheng Ho v. Fum Boo Ju & Anor [Guaman Sivil No.: 22 NCVC 22-05/2014]

  2. Liang Youmei (W/China) v. PP [2019] 1 LNS 54 (CA) affirming the High Court case of PP v. Liang Youmei (W/China) [Criminal Trial No.: 45A-78-08/2014]

LATEST CASES

Legal Network Series

[2018] 1 LNS 367

GOO SAW JIN v. HWANG SZE YUNN & ANOR

CIVIL PROCEDURE: Discovery - Discovery and inspection of documents - Relevancy - Application to discover papers and information pertaining to assets and business of deceased - Cause of action was for breach of contract against deceased - Whether documents sought were relevant to cause of action - Whether documents sought fall within any one of categories set out in O. 24 r. 3(4) and/or r. 7(3) of Rules of Court 2012

  • For the appellant - Lena Chik; M/s YY Ho & Lee
  • For the respondent - Heng Yee Keat; M/s Christopher & Lee On

[2018] 1 LNS 404

PRAI POWER SDN BHD v. GE ENERGY PARTS INC & ORS

ARBITRATION: Stay of proceedings - Section 10(1) Arbitration Act 2005 ('Act 2005') - Stay of proceedings pending reference of dispute for arbitration - Cause of action was premised on negligence in design and manufacturing defects - Whether plaintiff's claim was subject to arbitration clause - Whether requirements under s. 10 of Arbitration Act 2005 satisfied

  • For the plaintiff - Liew Teck Huat & Lim Qi Si; M/s Suflan TH Liew & Partners
  • For the defendant - Christopher Leong & Shamala Balasundram; M/s Chooi & Co

[2018] 1 LNS 406

EKUITI SETEGAP SDN BHD v. PLAZA 393 MANAGEMENT CORPORATION & ORS

CIVIL PROCEDURE: Striking out - Action - Action seeking damages to be assessed by court on alleged malicious litigation - Section 218 notice and winding up petition filed by 1st defendant against plaintiff after judgment entered in main suit - Whether petition unlawful - Whether petition could be filed despite the order for stay pending appeal obtained by plaintiff - Whether the petition could be construed as execution of the judgment obtained against plaintiff - Whether plaintiff's claim was obviously unsustainable

  • For the plaintiff - Kamraj Nayagam & Kent Chai; M/s Mah-Kamariyah & Philip Koh
  • For the defendants - Aimee Liew & Lim Zi-An; M/s YH Teh & Quek

[2018] 1 LNS 492

SAMSUDIN ABDULLAH lwn. PP

PROSEDUR JENAYAH: Hukuman - Prinsip-prinsip hukuman - Kepentingan awam - Kesalahan pencabulan kehormatan ke atas kanak-kanak perempuan - Tertuduh pesakit barah otak dan berusia lanjut - Sama ada kepentingan seseorang tertuduh boleh diketepikan langsung - Sama ada kepentingan awam sendiri mewajarkan seseorang tertuduh tidak dimasukkan ke dalam penjara di dalam tempoh yang panjang - Sama ada penyakit dan usia lanjut tertuduh wajar dipertimbangkan dalam pemberian hukuman - Sama ada hukuman telah mengikuti trend semasa - Sama ada hukuman yang dijatuhkan adalah amat berpatutan dan selamat

  • Bagi pihak pendakwa raya/responden - TPR Ainul Wardah Shahidan; Pejabat Penasihat Undang-Undang
  • Bagi pihak perayu - Mohd Zulfiqri Hj Zakaria; T/n Zulfiqri Zakaria & Co

[2018] 1 LNS 505

CHE IBRAHIM MOHAMED lwn. KIAS DARULNAIM SDN BHD

TORT: Fitnah - Libel - Kenyataan dalam surat tunjuk sebab - Kenyataan dalam surat-surat dalaman yang berkaitan dengan tindakan urusan tatatertib terhadap plaintif - Penerbitan dibuat kepada pegawai-pegawai yang diberi kuasa secara statutori untuk bertindak dalam urusan tatatertib terhadap plaintif - Sama ada pengataan yang terkandung di dalam surat tunjuk sebab membawa maksud yang merendahkan maruah dan integriti plaintif - Sama ada penerbitan telah dibuat kepada pihak ketiga

TORT: Fitnah - Pembelaan - Perlindungan bersyarat - Kenyataan dalam surat tunjuk sebab - Penerbitan dibuat kepada pegawai-pegawai yang diberi kuasa secara statutori untuk bertindak dalam urusan tatatertib terhadap plaintif - Sama ada defendan berhak membuat laporan dan membincangkan aduan terhadap salahlaku plaintif - Sama ada ahli-ahli mesyuarat yang dipilih untuk mengendalikan tatatertib adalah sebahagian dari defendan - Sama ada pembelaan perlindungan bersyarat adalah terpakai

  • Bagi pihak perayu/plaintif - Mat Isa Che Dir; T/n CM Isa & Co
  • Bagi pihak responden/defendan - Nik Bahrum Nik Abdullah; T/n Nor Bahrum & Co

CLJ 2019 Volume 5 (Part 3)

COURT OF APPEAL

Ahmad Zubir Zahid v. Datuk Dr Zainal Abidin Abdul Hamid & Ors
Hamid Sultan Abu Backer, Abang Iskandar, Rhodzariah Bujang JJCA
(Tort - Medical negligence - Standard of care - Whether standard of care extended only to advise of risks associated with proposed treatment - Whether extended to diagnosis and treatment) [2019] 5 CLJ 273 [CA]

Dato' Sri Mohd Najib Hj Abdul Razak v. PP
Zabariah Mohd Yusof, Rhodzariah Bujang, Lau Bee Lan JJCA
(Criminal Law; Criminal Procedure - Former Prime Minister of Malaysia charged with seven criminal charges - Application by prosecution to withdraw transfer certificates - Whether Public Prosecutor's power to withdraw transfer certificate spent when certificate was acted on - Whether High Court Judge could transfer case back to himself) [2019] 5 CLJ 293 [CA]

PP v. Wan Mohamad Nur Firdaus Abd Wahab & Another Appeal
Mohtarudin Baki, Harmindar Singh Dhaliwal, Rhodzariah Bujang JJCA
(Criminal Procedure; Criminal Law - Appeal against sentence - Terrorism related offences - Whether there was justification for imposing heavy sentence) [2019] 5 CLJ 320 [CA]

HIGH COURT

Gary Teh Chin Yeong v. Kwong Yan Loy & Anor
Wong Kian Kheong J
(Civil Procedure - Application to expunge paragraphs in affidavit - Whether paragraphs referred to privileged and inadmissible as evidence) [2019] 5 CLJ 329 [HC]

PP v. Bestino Group Bhd & Ors And Another Appeal
Mohd Radzi Harun JC
(Criminal Law - Money laundering - Elements of offence - Company and directors charged for offence of receiving deposits from public without valid licence) [2019] 5 CLJ 339 [HC]

PP v. Dato' Sri Mohd Najib Hj Abdul Razak
Mohd Nazlan Ghazali J
(Criminal Law; Criminal Procedure - Former Prime Minister of Malaysia charged with seven criminal charges - Application by prosecution to withdraw transfer certificates - Whether withdrawal could potentially vitiate and nullify entire proceedings - Whether withdrawal would mean proceedings ceased to exist) [2019] 5 CLJ 355 [HC]

Protasco Bhd v. PT Anglo Slavic Utama & Ors
Azizul Azmi Adnan J
(Civil Procedure - Discovery - Inspection and obtaining copies of documents from banks) [2019] 5 CLJ 376 [HC]

Trevor Kenneth Maringking v. Pantai Dalit Beach Resort Sdn Bhd
Celestina Stuel Galid JC
(Tort - Trespass to land - Construction of road - Claim for special damages) [2019] 5 CLJ 396 [HC]

SUBJECT INDEX

CIVIL PROCEDURE

Affidavit - Paragraphs - Application to expunge paragraphs in affidavit - Whether paragraphs referred to in affidavit privileged and inadmissible as evidence - Defendants' failure to file application under O. 41 r. 6 of Rules of Court 2012 - Whether defendants waived their right to object
Gary Teh Chin Yeong v. Kwong Yan Loy & Anor
(Wong Kian Kheong J) [2019] 5 CLJ 329 [HC]

Discovery - Inspection and obtaining copies of documents from banks - Application for - Test of relevancy - Whether fulfilled - Whether applicant entitled to seek inspection of banker's books - Whether application mere fishing expedition - Whether applicant had case that may be aided by order of discovery - Whether applicant sought in effect to reverse burden of proof - Whether legal burden of proof shifted - Whether court had jurisdiction to grant orders - Admissibility of documents - Determination of - Bankers' Book (Evidence) Act 1949, s. 7
Protasco Bhd v. PT Anglo Slavic Utama & Ors
(Azizul Azmi Adnan J) [2019] 5 CLJ 376 [HC]

CRIMINAL LAW

Charges - Criminal charges - Accused, former Prime Minister of Malaysia, charged with seven criminal charges relating to offences under Penal Code, Malaysian Anti-Corruption Commission Act 2009 and Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001 - Charges initially filed at Sessions Court but later transferred to High Court by way of transfer certificates issued by prosecution - Appeal against decision of High Court in allowing application by prosecution to withdraw transfer certificates - Whether appeal ought to be allowed
Dato' Sri Mohd Najib Hj Abdul Razak v. PP
(Zabariah Mohd Yusof, Rhodzariah Bujang, Lau Bee Lan JJCA) [2019] 5 CLJ 293 [CA]

Charges - Criminal charges - Accused, former Prime Minister of Malaysia, charged with seven criminal charges relating to offences under Penal Code, Malaysian Anti-Corruption Commission Act 2009 and Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001 - Charges initially filed at Sessions Court but later transferred to High Court by way of transfer certificates issued by prosecution - Application by prosecution to withdraw transfer certificates - Whether application ought to be allowed
PP v. Dato' Sri Mohd Najib Hj Abdul Razak
(Mohd Nazlan Ghazali J) [2019] 5 CLJ 355 [HC]

Money laundering - Elements of offence - Company and directors charged for offence of receiving deposits from public without valid licence granted under s. 6(4) of Banking and Financial Institutions Act 1989 ('BAFIA') - Whether company's business model fell within definition of 'deposit' under BAFIA - Whether company received 'deposit' while carrying out 'banking business' - Whether company's business required any form of licence issued under BAFIA - Whether company committed any offence of money-laundering - Whether elements of charge proved
PP v. Bestino Group Bhd & Ors And Another Appeal
(Mohd Radzi Harun JC) [2019] 5 CLJ 339 [HC]

Penal Code - Section 130J(1)(a), 130JB(1)(a) - Terrorism related offences - Pledging of oath of allegiance to terrorist group - Appeal against sentence - Mitigating factors - Accused pleaded guilty - Whether plea allowed for discount on sentence - Whether accused first offender - Whether accused's participation in terrorist group passive and minimal - Whether there was justification for imposing heavy sentence - Whether court ought to reduce sentence - Penal Code, ss. 130J(1)(a), 130JB(1)(a)
PP v. Wan Mohamad Nur Firdaus Abd Wahab & Another Appeal
(Mohtarudin Baki, Harmindar Singh Dhaliwal, Rhodzariah Bujang JJCA) [2019] 5 CLJ 320 [CA]

CRIMINAL PROCEDURE

Prosecution - Conduct of criminal prosecution - Transfer of charges - Appeal against decision of High Court allowing application by prosecution to withdraw transfer certificates - Accused, former Prime Minister of Malaysia, charged with seven criminal charges - Charges initially filed at Sessions Court but later transferred to High Court by way of transfer certificates issued by prosecution - Whether there was breach of natural justice - Whether Public Prosecutor's power to withdraw transfer certificate spent when certificate was acted on - Whether Public Prosecutor was functus officio - Whether High Court's reasoning flawed - Whether High Court Judge could transfer case back to himself - Whether appeal ought to be allowed - Criminal Procedure Code, ss. 417(1), (2) & 418A - Malaysian Anti-Corruption Commission Act 2009. s. 60
Dato' Sri Mohd Najib Hj Abdul Razak v. PP
(Zabariah Mohd Yusof, Rhodzariah Bujang, Lau Bee Lan JJCA) [2019] 5 CLJ 293 [CA]

Prosecution - Conduct of criminal prosecution - Transfer of charges - Application by prosecution to withdraw transfer certificates - Accused, former Prime Minister of Malaysia, charged with seven criminal charges - Charges initially filed at Sessions Court but later transferred to High Court by way of transfer certificates issued by prosecution - Whether withdrawal would result in fatal defect - Whether withdrawal could potentially vitiate and nullify entire proceedings - Whether withdrawal would mean proceedings ceased to exist - Criminal Procedure Code, ss. 254, 376(1), 417(1), (2) & 418A - Malaysian Anti-Corruption Commission Act 2009, s. 60
PP v. Dato' Sri Mohd Najib Hj Abdul Razak
(Mohd Nazlan Ghazali J) [2019] 5 CLJ 355 [HC]

Public Prosecutor - Powers and functions - Application by prosecution to withdraw transfer certificates - Accused, former Prime Minister of Malaysia, charged with seven criminal charges - Charges initially filed at Sessions Court but later transferred to High Court by way of transfer certificates issued by prosecution - Powers of Public Prosecutor to institute, conduct or discontinue any proceedings for offence - Whether Public Prosecutor has power to withdraw transfer certificates issued previously - Federal Constitution, s. 145(3) - Criminal Procedure Code, ss. 254 & 376(1)
PP v. Dato' Sri Mohd Najib Hj Abdul Razak
(Mohd Nazlan Ghazali J) [2019] 5 CLJ 355 [HC]

Public Prosecutor - Powers and functions - Application by prosecution to withdraw transfer certificates - Accused, former Prime Minister of Malaysia, charged with seven criminal charges - Charges initially filed at Sessions Court but later transferred to High Court by way of transfer certificates issued by prosecution - Powers of Public Prosecutor to institute, conduct or discontinue any proceedings for offence - Whether Public Prosecutor has power to withdraw transfer certificates issued previously - Whether principle of functus officio applied to Public Prosecutor - Federal Constitution, s. 145(3)
Dato' Sri Mohd Najib Hj Abdul Razak v. PP
(Zabariah Mohd Yusof, Rhodzariah Bujang, Lau Bee Lan JJCA) [2019] 5 CLJ 293 [CA]

Sentence - Appeal against sentence - Terrorism related offences - Pledging of oath of allegiance to terrorist group - Mitigating factors - Accused pleaded guilty - Whether plea allowed for discount on sentence - Whether accused first offender - Whether accused's participation in terrorist group passive and minimal - Whether there was justification for imposing heavy sentence - Whether court ought to reduce sentence - Penal Code, ss. 130J(1)(a), 130JB(1)(a)
PP v. Wan Mohamad Nur Firdaus Abd Wahab & Another Appeal
(Mohtarudin Baki, Harmindar Singh Dhaliwal, Rhodzariah Bujang JJCA) [2019] 5 CLJ 320 [CA]

TORT

Duty of care - Breach - Allegation of - Defendant constructed road encroaching onto plaintiff's lands without consent and caused damage - Defendant's failure to investigate boundary of defendant's lands before proceeding to commence construction work - Whether defendant had duty to ascertain acquisition of affected lands - Whether defendant owed a duty of care towards plaintiff - Whether plaintiff estopped from taking legal action against defendant - Claim for special damages - Whether allowed - Whether there was malice on defendant's part - Whether there was justification for award of aggravated or exemplary damages
Trevor Kenneth Maringking v. Pantai Dalit Beach Resort Sdn Bhd
(Celestina Stuel Galid JC) [2019] 5 CLJ 396 [HC]

Negligence - Medical negligence - Standard of care - Principles in Foo Fio Na v. Dr Soo Fook Mun & Anor - Whether court to determine doctor acted reasonably and logically and got facts right - Whether medical negligence cases could not be decided by medical judgment - Whether to be decided by way of judicial determination - Whether standard of care extended only to advise of risks associated with proposed treatment - Whether extended to diagnosis and treatment
Ahmad Zubir Zahid v. Datuk Dr Zainal Abidin Abdul Hamid & Ors
(Hamid Sultan Abu Backer, Abang Iskandar, Rhodzariah Bujang JJCA) [2019] 5 CLJ 273 [CA]

Trespass to land - Construction of road - Whether defendant constructed road encroaching onto plaintiff's lands without consent - Whether portion of plaintiff's lands acquired by Government to be included as part of defendant's lands - Whether plaintiff lawfully disposed of the relevant portion of plaintiff's lands - Whether construction of road amounted to trespass - Whether purported alienation and subsequent issuance of title deed to defendant wrong in law - Whether defendant could be absolved from liability due to 'mistake' by Lands and Surveys Department in issuing title deed - Whether plaintiff estopped from taking legal action against defendant - Claim for special damages - Whether allowed - Whether there was malice on defendant's part - Whether there was justification for award of aggravated or exemplary damages
Trevor Kenneth Maringking v. Pantai Dalit Beach Resort Sdn Bhd
(Celestina Stuel Galid JC) [2019] 5 CLJ 396 [HC]


ARTICLES

LNS Article(s)

  1. RE-EXAMINING MAJORITY-MINORITY RELATIONS IN THE ERA OF 'MALAYSIA BAHARU' [Read excerpt]
    by WAN NAIM WAN MANSOR* [2019] 1 LNS(A) lxix

  2. [2019] 1 LNS(A) lxix
    logo
    MALAYSIA

    RE-EXAMINING MAJORITY-MINORITY RELATIONS IN THE ERA OF 'MALAYSIA BAHARU'

    by
    WAN NAIM WAN MANSOR*

    As euphoria swept the nation following the 9th May election, many proclaimed that the nation has entered the era of 'Malaysia Baharu'. This historic election witnessed the shocking dethroning of Barisan Nasional and its dominant party UMNO, which ruled the country for almost 61-years. The unseating of the longest ruling party in Malaysian history (and in the world) left a huge ideological vacuum and uncertainty in the near future of Malaysia.

    The rise of Pakatan Harapan comes along with renewed calls for major institutional reforms towards a stronger and more vibrant democracy. Under this new administration, Malaysians were promised a stronger voice and a fairer and more equitable treatment, regardless of ethnicity, religion, socio-economic status, political leanings, and gender.

    . . .

    * Published with kind permission of the International Institute of Advanced Islamic Studies (IAIS) Malaysia. (www.iais.org.my).

  3. EMBRACING TECHNOLOGY IN THE LEGAL INDUSTRY - "ADAPT" OR "BE DROPPED"* [Read excerpt]
    by FATIMAH ZAHIRAH MOHD DAMANHURI [2019] 1 LNS(A) lxviii

  4. [2019] 1 LNS(A) lxviii
    logo
    MALAYSIA

    EMBRACING TECHNOLOGY IN THE LEGAL INDUSTRY -
    "ADAPT" OR "BE DROPPED"*


    by
    FATIMAH ZAHIRAH MOHD DAMANHURI

    Introduction

    The Chief Justice of Malaysia at the Opening of the Legal Year 2019 on 11 January 2019 had the following message:

    “the legal profession must embrace technology. There is no option. It is coming soon to the legal profession. Adapt or be dropped.”[1]

    The message was delivered in the context of technological reforms that have been or will be introduced into the judicial ecosystem which include:[2]

    • Video conferencing between Kuala Lumpur, Penang and Shah Alam with plans for expansion to other areas;
    • Virtual court and the use of hologram technology in the pipeline for future implementation;
    • Paperless Malaysian Courts by June 2019, where bundle of documents will be stored as virtual files within the case management system; and

    . . .

    *This article is current as at 4 March 2019. Published with kind permission of M/s Shearn Delamore & Co.

  5. IN SICKNESS AND IN HEALTH ILLNESS, INJURY AND EMPLOYMENT LAW* [Read excerpt]
    by John Wilson** Kieran Pender*** [2019] 1 LNS(A) lxx

  6. [2019] 1 LNS(A) lxx
    logo
    AUSTRALIA

    IN SICKNESS AND IN HEALTH ILLNESS, INJURY AND EMPLOYMENT LAW*

    by
    John Wilson**
    Kieran Pender***

    While sick employees may be an eternal frustration for human resources managers, they also give rise to a host of interesting and sometimes complex employment law dilemmas.

    “No one expects a servant to spend a term of years without any sickness.” - Alfred Tom Denning (later Lord Denning).[1]

    At first glance, the topic of illness in the workplace may seem banal. At one point or another in their working lives, everyone will be unwell. In Australia, the institution of “the sickie” has gained hallowed status; as then Prime Minister Bob Hawke famously pronounced following Australia’s America’s Cup victory, ‘any boss who sacks anyone for not turning up to work today is a bum!’ But while sick employees may be an eternal frustration for human resources managers, they also give rise to a host of interesting and sometimes complex employment law dilemmas.

    . . .

    *Published with kind permission of the Law Society of the Australian Capital Territory. See Ethos No. 249 September 2018.

    ** Managing Legal Director, Bradley Allen Love, Canberra

    *** Legal Advisor, International Bar Association, London

LEGISLATION HIGHLIGHTS

Principal Acts

Number Title In force from Repealing
ACT 812 Finance Act 2018 The Income Tax Act 1967 [Act 53] see s 3; The Promotion of Investments Act 1986 [Act 327] see s 31; The Stamp Act 1949 [Act 378] see s 63; The Real Property Gains Tax Act 1976 [Act 169] see s 69; The Labuan Business Activity Tax Act 1990 [Act 445] see s 71; The Service Tax Act 2018 [Act 807] see s 83; The Sales Tax Act 2018 [Act 806] see s 91 -
ACT 811 Suruhanjaya Pengangkutan Awam Darat (Dissolution) Act 2018 1 January 2019 [PU(B) 732/2018] -
ACT 810 Subang Golf Course Corporation Act 1968 (Revised 2018) 12 November 2018 pursuant to paragraph 6(1)(xxiii) of the Revision of Laws Act 1968 [Act 1]; Revised up to 1 November 2018; First enacted in 1968 as Act of Parliament No 26 of 1968; First Revision - 1993 (Act 509 wef 8 October 1993) -
ACT 809 Pool Betting Act 1967 (Revised 2018) 12 November 2018 pursuant to paragraph 6(1)(xxiii) of the Revision of Laws Act 1968 [Act 1]; Revised up to 1 November 2018; First enacted in 1967 as Act of Parliament No 72 of 1967; First Revision - 1989 (Act 384 wef 21 September 1989) -
ACT 808 National Anthem Act 1968 (Revised 2018) 1 November 2018 pursuant to paragraph 6(1)(xxiii) of the Revision of Laws Act 1968 [Act 1]; Revised up to 15 October 2018; First enacted in 1968 as Act of Parliament No 20 of 1968; First Revision - 1989 (Act 390 wef 19 October 1989) -

Amending Acts

Number Title In force from Principal/Amending Act No
ACT A1589 Co-Operative College (Incorporation) (Amendment) Act 2019 1 September 2011 - only Part II of this Act; 3 May 2019 [PU(B) 234/2019] - Parts III and IV of the Act ACT A1398, ACT NO. 35 TAHUN 1968, ACT 437
ACT A1588 Street, Drainage And Building (Amendment) Act 2019 Not Yet In Force ACT 133
ACT A1587 Hire-Purchase (Amendment) Act 2019 1 March 2019 [PU(B) 117/2019] ACT 212
ACT A1586 Children And Young Persons (Employment) (Amendment) Act 2019 1 February 2019 [PU(B) 62/2019] ACT 350
ACT A1585 Road Transport (Amendment) Act 2019 1 March 2019 [PU(B) 113/2019] ACT 333

PU(A)

Number Title Date of Publication In force from Principal/ Amending Act No
PU(A) 126/2019 Motor Vehicles (Prohibition Of Certain Types Of Glass) (Amendment) Rules 2019 7 May 2019 8 May 2019 PU(A) 39/1991
PU(A) 125/2019 Educational Institutions (Discipline) (Amendment Of First Schedule) Order 2019 6 May 2019 23 May 2018 ACT 174
PU(A) 124/2019 Price Control And Anti-Profiteering (Determination Of Maximum Retail Price For Petrol And Diesel) (No. 14) Order 2019 3 May 2019 4 May 2019 ACT 723
PU(A) 123/2019 Customs (Uniforms) Order 2019 30 April 2019 1 May 2019 ACT 235
PU(A) 122/2019 Fees (Employment Pass, Visit Pass (Temporary Employment) And Work Pass) (Amendment) Order 2019 30 April 2019 30 April 2019 PU(A) 479/1998

PU(B)

Number Title Date of Publication In force from Principal/ Amending Act No
PU(B) 234/2019 Appointment Of Date Of Coming Into Operation 2 May 2019 3 May 2019 ACT A1589
PU(B) 233/2019 Notice Of Contested Election By-Election Of The Dewan Rakyat Of P.186 Sandakan For The State Of Sabah 30 April 2019 1 May 2019 PU(A) 386/1981
PU(B) 232/2019 List Of Licensees 29 April 2019 30 April 2019 ACT 731
PU(B) 231/2019 Returns And Statements Of Election Expenses - Pulau Pinang 29 April 2019 30 April 2019 ACT 5
PU(B) 230/2019 Notice Of Completion Of Revision And Inspection Of Supplementary Electoral Rolls - Sarawak 29 April 2019 30 April 2019 PU(A) 293/2002

Legislation Alert

Updated

Act/Principal No. Title Amended by In force from Section amended
ACT 437 Co-Operative Institute (Incorporation) Act 1968 (Revised 1990) ACT A1589 1 September 2011 - only Part II of this Act; 3 May 2019 [PU(B) 234/2019] - Parts III and IV of the Act Section 1 and 7
ACT 174 Educational Institutions (Discipline) Act 1976 PU(A) 125/2019 23 May 2018 First Schedule
PU(A) 479/1998 Fees (Employment Pass, Visit Pass (Temporary Employment) and Work Pass) Order 1998 PU(A) 122/2019 30 April 2019 Schedule IA
PU(A) 303/1983 Farmers' Organization Regulations 1983 PU(A) 115/2019 1 May 2019 Regulations 35 and 44
ACT 366 Poisons Act 1952 (Revised 1989) PU(A) 112/2019 19 April 2019 Third Schedule

Revoked

Act/Principal No. Title Revoked by In force from
PU(A) 1/1989 Factories and Machinery (Noise Exposure) Regulation 1989 PU(A) 59/2019 1 June 2019
PU(A) 284/2016 Excise Duties (Labuan) Order 2016 PU(A) 89/2019 27 March 2019
PU(A) 283/2016 Excise Duties (Langkawi) Order 2016 PU(A) 88/2019 27 March 2019
PU(A) 286/2016 Customs Duties (Labuan) Order 2016 PU(A) 87/2019 27 March 2019
LN 225/1958 Births and Deaths Registration Rules 1958 PU(A) 54/2019 1 March 2019