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Issue #27/2020
25 June 2020

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New This Week

CASE(S) OF THE WEEK

REDHA RESOURCES SDN BHD v. MAJLIS AGAMA ISLAM SELANGOR & ORS [2020] 5 CLJ 715
COURT OF APPEAL, PUTRAJAYA
AHMADI ASNAWI JCA; AB KARIM AB JALIL JCA; LEE SWEE SENG JCA
[CIVIL APPEAL NO: B-01(NCVC)(W)-51-01-2018]
22 APRIL 2020

A party cannot terminate a contract on the ground that the alleged defaulting party has not complied with the provisions of the contract or the law which thereby resulted in an illegal act being committed when it has itself participated in the illegality. Where therefore a plaintiff has entered into an agreement with a defendant for the latter to build and manage student hostels for the benefit of the plaintiff's students, and both thereafter allowed the hostels to be occupied by students despite no Certificate of Completion and Compliance (CCC) having been obtained therefor, illegality cannot be relied on by the plaintiff as a basis to terminate the contract. Even if the defendant, in failing to obtain the CCC, had breached its part of the bargain, the plaintiff has clearly acquiesced and has reaped benefits from its participation in the breach, and is hence estopped from relying on the non-compliance.

CONTRACT: Agreement - Concession agreement - Breach - Allegation of - Concessionaire's failure to obtain certificate of completion and compliance - Whether concessionaire committed fundamental breaches - Whether respondents entitled to terminate agreements - Whether respondents estopped from doing so by their own conduct - Whether termination of agreement lawful - Claim for damages - Assessment of


TENGKU DATO' KAMAL IBNI SIR SULTAN ABU BAKAR & ORS v.
BURSA MALAYSIA SECURITIES BHD
[2020] 5 CLJ 751
COURT OF APPEAL, PUTRAJAYA
ROHANA YUSUF JCA; UMI KALTHUM ABDUL MAJID JCA; HASNAH MOHAMMED HASHIM JCA
[CIVIL APPEAL NO: W-02(IM)(NCC)-1394-08-2016]
27 FEBRUARY 2020

A person against whom an order of court has been issued must obey the order until it is set aside, and it is not for him to decide for himself whether the order was wrongly issued or otherwise. Where the directors of a company were sanctioned by a court order to restore a certain amount of money that they have wrongly caused to have been taken out from the company, and the directors have still failed to comply with the order despite having exhausted all their rights and avenues to appeal, an order of committal may then be appropriate and should be imposed upon them. Where, however, the failure to comply is characterized by a lackadaisical or cavalier attitude, or an unabashed refusal or defiance, a custodial sentence may be warranted as opposed to a fine sentence only.

CIVIL PROCEDURE: Committal proceedings - Appeal against - Company breached Listing Requirements of Bursa Malaysia - High Court made orders to give effect to penalties imposed against directors of company - Orders affirmed but varied by Court of Appeal - Directors failed to comply with courts' orders - Order of committal obtained against directors for failure to comply with courts' orders - Whether directors in contempt - Whether there were clear acts of contempt - Rules of Court 2012, O. 52 r. 4

CIVIL PROCEDURE: Committal proceedings - Sentence - Company breached Listing Requirements of Bursa Malaysia - High Court made orders to give effect to penalties imposed against directors of company - Orders affirmed but varied by Court of Appeal - Directors failed to comply with courts' orders - Order of committal obtained against directors for failure to comply with courts' orders - Directors sentenced to fine - Whether heavier sentence ought to be meted out - Whether sentence reflected seriousness of offence - Whether custodial sentence more appropriate - Rules of Court 2012, O. 52 r. 4


APPEAL UPDATES  
  1. Abdul Aziz Husain v. Arkitek Seniformasi Sdn Bhd & Ors [2020] 1 LNS 16 (CA) affirming the High Court case of Arkitek Seniformasi Sdn Bhd & Ors v. Abdul Aziz Husain [2018] 1 LNS 800

  2. Low Song Kim v. PP [2020] 1 LNS 11 (CA) affirming the High Court case of PP v. Low Song Kim [Criminal Trial No: 45A-23-07/2015).]

LATEST CASES

Legal Network Series

[2018] 1 LNS 2097

MOO HON YEE v. S ABDUL RAHMAN PAK SHAIK ABDUL KADER

Failure to adduce expert valuation evidence regarding present market values on proposed lands is fatal to an application under s. 145 of National Land Code.

LAND LAW: Subdivision - Partition - Co-proprietorship - Principles and procedures - Requirement to adduce expert valuation evidence regarding proposed partition of land - Parties relied on sale and purchase agreements ('SPA') regarding land as opposed to register document of title ('RDT') - Whether court could only consider RDT - Whether pre-condition under s. 145(1)(a) of National Land Code has been fulfilled - Whether plaintiff discharged legal burden to satisfy Court of intention to terminate co-proprietorship - Whether any breach of condition of land use by any co-proprietor of land may be considered by Court

  • For the plaintiff - Fauziana Mohd Bharil; M/s Ng Choo Beng R Naidu & Partners
  • For the defendant - Siti Zawiah Ruslan; M/s Siti Zawiah & Co

[2018] 1 LNS 2115

GORGEOUS GREEN SDN BHD v. PESURUHJAYA BANGUNAN DEWAN BANDARAYA KUALA LUMPUR & ANOR

A proxy is excluded from being elected as a member of the Management Committee of a Joint Management Body.

ADMINISTRATIVE LAW: Judicial review - Certiorari - Application to quash decision of Commissioner of Building of Dewan Bandaraya Kuala Lumpur ('Commissioner') - Illegality - Commissioner dissatisfied with constitution of management committee and directed that an extraordinary general meeting be convened - Appointment of proxy as member of management committee and chairman of annual general meeting - Whether there was a decision which is subject to judicial review - Whether commissioner had arrived at a correct decision

  • For the applicant - Sivabalan & Goh Wan Ping; M/s Mastura Partnership
  • For the respondent 1 - Zainol Mohamad; M/s Zainol, Kiong & Associates
  • For the respondent R1 & R2 - Loke Pooi Gee; M/s LP Gee & Co

[2018] 1 LNS 2116

TORE NEDREGAARD v. MAHKAMAH PERUSAHAAN MALAYSIA & ANOR

The date of constructive dismissal is a finding of fact by the Industrial Court and does not go to the issue of jurisdiction; the Industrial Court retained its jurisdiction to inquire into a claim of constructive dismissal following its finding that the date of constructive dismissal was different from that in the Minister's reference.

ADMINISTRATIVE LAW: Judicial review - Certiorari - Error of law - Industrial Court dismissed applicant's claim on issue of jurisdiction and without making a finding on substantive complaint - Whether Industrial Court has jurisdiction to adjudicate complaint due to different date of dismissal in Minister's reference - Whether findings of fact ought to have been on substantive complaint - Whether substance of Minister's reference was on constructive dismissal - Whether it was for Industrial Court to ascertain date of constructive dismissal after hearing all the evidence

  • For the applicant - Hariharan Tara Singh & Fakhrul Redha; M/s Scivetti & Associates
  • For the respondent 2 - R Ravindra Kumar; M/s Raja, Darryl & Loh

[2019] 1 LNS 231

ZULFAKAR OMARDIN lwn. PP

Penggunaan perkataan 'imbangan kebarangkalian' yang dicatatkan di dalam penghakiman oleh hakim bicara semata-mata tidak terjumlah kepada kekhilafan oleh hakim bicara tersebut dalam menggunakan tahap beban pembuktian terhadap kes pembelaan.

PROSEDUR JENAYAH: Rayuan - Rayuan terhadap sabitan dan hukuman - Pertikaian berkenaan penggunaan tahap beban pembuktian terhadap pembelaan oleh hakim bicara - Perkataan 'imbangan kebarangkalian' dicatatkan di dalam penghakiman - Sama ada hakim bicara telah memahami sepenuh mengenai beban pembuktian yang sepatutnya digunapakai diakhir kes pembelaan

PROSEDUR JENAYAH: Rayuan - Rayuan terhadap hukuman - Kesalahan merompak berkumpulan dan penyamaran sebagai penjawat awam - Hukuman penjara 7 tahun dan 2 sebatan rotan - Tertuduh disabitkan bersalah selepas bicara penuh - Kesalahan pertama - Sama ada kepentingan awam serta kesan kepada pengadu perlu diambil kira dalam menentukan hukuman - Sama ada hukuman yang dijatuhkan adalah wajar dan munasabah

  • Bagi pihak perayu - Ahmad Ishrakh Saad & Donny Abdullah; T/n Dony & Co
  • Bagi pihak responden - Mohd Josiendra Abu Senin; Jabatan Peguam Negara

[2019] 1 LNS 233

PERBADANAN USAHAWAN NASIONAL BERHAD lwn. TAMPAK GEMERLAP SDN BHD & YANG LAIN

Sesuatu penghakiman yang telah diperolehi perlu dilaksanakan tanpa berlengah-lengah walaupun s. 6(3) Akta Had Masa 1953 memperuntukkan bahawa penghakiman tersebut boleh dikuatkuasakan dalam tempoh 12 tahun. Satu alasan yang munasabah perlu dikemukakan sekiranya terdapat kelewatan dalam mengambil tindakan penguatkuasaan

PROSEDUR SIVIL: Pelaksanaan - Kebenaran untuk pelaksanaan penghakiman - Penguatkuassan penghakiman ingkar - Plaintif berdiam diri tanpa mengambil usaha-usaha untuk menguatkuasakan penghakiman - Sama ada plaintif mempunyai alasan yang mencukupi berkenaan dengan kelengahan dalam menguatkuasakan penghakiman - Sama ada peruntukan s. 6(3) Akta Had Masa 1953 boleh ditafsirkan sebagai membolehkan plaintif mengambil masa sesuka hatinya dalam mengambil tindakan penguatkuasaan penghakiman

  • Bagi pihak plaintif - Mohamed Rhiza Ghazi; T/n Rhiza & Richard
  • Bagi pihak defendan-defendan - Tidak Hadir

CLJ 2020 Volume 5 (Part 6)

A party cannot terminate a contract on the ground that the alleged defaulting party has not complied with the provisions of the contract or the law which thereby resulted in an illegal act being committed when it has itself participated in the illegality. Where therefore a plaintiff has entered into an agreement with a defendant for the latter to build and manage student hostels for the benefit of the plaintiff's students, and both thereafter allowed the hostels to be occupied by students despite no Certificate of Completion and Compliance (CCC) having been obtained therefor, illegality cannot be relied on by the plaintiff as a basis to terminate the contract. Even if the defendant, in failing to obtain the CCC, had breached its part of the bargain, the plaintiff has clearly acquiesced and has reaped benefits from its participation in the breach, and is hence estopped from relying on the non-compliance.
Redha Resources Sdn Bhd v. Majlis Agama Islam Selangor & Ors [2020] 5 CLJ 715 [CA]

CONTRACT: Agreement - Concession agreement - Breach - Allegation of - Concessionaire's failure to obtain certificate of completion and compliance - Whether concessionaire committed fundamental breaches - Whether respondents entitled to terminate agreements - Whether respondents estopped from doing so by their own conduct - Whether termination of agreement lawful - Claim for damages - Assessment of

 

 

AHMADI ASNAWI JCA
AB KARIM AB JALIL JCA
LEE SWEE SENG JCA

  • For the appellant - Nanthini Nair Ramakrishnan; M/s Idris & Partners
  • For the 1st & 2nd respondents - Muhammad Fairuz Ahmad Yusof, Dir Kheizwan Kamaruddin, Nurul Muhaniza Hanafi & Sharifah Kalsom Syed Sidki; M/s Abu Zahar Syed Mohd Fuad & Partners
  • For the 3rd respondent - Muhammad Adam Abdullah & Alina Atikah Zainal Abidin; M/s Adam Abdullah & Mani

A person against whom an order of court has been issued must obey the order until it is set aside, and it is not for him to decide for himself whether the order was wrongly issued or otherwise. Where the directors of a company were sanctioned by a court order to restore a certain amount of money that they have wrongly caused to have been taken out from the company, and the directors have still failed to comply with the order despite having exhausted all their rights and avenues to appeal, an order of committal may then be appropriate and should be imposed upon them. Where, however, the failure to comply is characterized by a lackadaisical or cavalier attitude, or an unabashed refusal or defiance, a custodial sentence may be warranted as opposed to a fine sentence only.
Tengku Dato’ Kamal Ibni Sir Sultan Abu Bakar & Ors v. Bursa Malaysia Securities Bhd [2020] 5 CLJ 751 [CA]

CIVIL PROCEDURE: Committal proceedings - Appeal against - Company breached Listing Requirements of Bursa Malaysia - High Court made orders to give effect to penalties imposed against directors of company - Orders affirmed but varied by Court of Appeal - Directors failed to comply with courts' orders - Order of committal obtained against directors for failure to comply with courts' orders - Whether directors in contempt - Whether there were clear acts of contempt - Rules of Court 2012, O. 52 r. 4

CIVIL PROCEDURE: Committal proceedings - Sentence - Company breached Listing Requirements of Bursa Malaysia - High Court made orders to give effect to penalties imposed against directors of company - Orders affirmed but varied by Court of Appeal - Directors failed to comply with courts' orders - Order of committal obtained against directors for failure to comply with courts' orders - Directors sentenced to fine - Whether heavier sentence ought to be meted out - Whether sentence reflected seriousness of offence - Whether custodial sentence more appropriate - Rules of Court 2012, O. 52 r. 4

 

 

ROHANA YUSUF JCA
UMI KALTHUM ABDUL MAJID JCA
HASNAH MOHAMMED HASHIM JCA

  • For the appellants - Jasbeer Singh Banta Singh & Nur Hakimah Mohamad; M/s Jasbeer Nur & Lee
  • For the respondent - Preetha Pillai & Nimalan Devaraja; M/s Skrine

The State Authority cannot withdraw from any acquisition of land under the Land Acquisition Act 1960 once it has taken possession of the land and has issued the relevant Notice of Award in Form H; a fortiori when works in relation to the purpose of acquisition has already been carried out on the land. Such withdrawal, upon the wording of ss. 18(a) and 35(1) of the Act, is ultra vires, and irrational and unreasonable, and is liable to be annulled or set aside by the court.
Fun Fatt v. Kerajaan Malaysia & Anor [2020] 5 CLJ 761 [HC]

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LAND LAW: Acquisition - Withdrawal - Withdrawal from acquisition of land - Whether second respondent had taken possession of land with permission of relevant authority under s. 18(a) of Land Acquisition Act 1960 ('LAA 1960') - Whether permanent modifications made to land - Whether usage of land changed from residential to transportation - Refusal to pay compensation sum - Whether respondents acted reasonably, fairly and rationally - Whether respondents' purported act of withdrawal ultra vires and an abuse of process - Whether respondents breached art. 13 of Federal Constitution - Whether withdrawal contravened s. 35(1) of LAA 1960

ADMINISTRATIVE LAW: Judicial review - Application for - Application for certiorari order to set aside first respondent's decision to withdraw from acquisition of land - Whether second respondent had taken possession of land with permission of relevant authority under s. 18(a) of Land Acquisition Act 1960 ('LAA 1960') - Whether permanent modifications made to land - Whether usage of land changed from residential to transportation - Refusal to pay compensation sum - Whether respondents acted reasonably, fairly and rationally - Whether respondents' purported act of withdrawal ultra vires and an abuse of process - Whether respondents breached art. 13 of Federal Constitution - Whether withdrawal contravened s. 35(1) of LAA 1960 - Whether withdrawal ought to be quashed

 

MARIANA YAHYA J

  • For the applicant - Raj Shankar & Tina Ann Francis; M/s Mathews Hun Lachimanan
  • For the respondents - Shahmin Amizah Abu Bakar; SFC

1. An Advocate and Solicitor has a duty to his/her client to be honest in all dealings and to be diligent in the advice and information given to such client.

2. An agreement obtained through coercion renders the full force of s. 15 of the Contracts Act 1950 ('CA'). Section 19 of the CA is further triggered. By virtue of s. 19(1), a contract entered into by a party either through innocent or fraudulent misrepresentation is voidable at the option of the party whose consent was so obtained. The innocent party who had been induced to enter into the contract through an innocent misrepresentation, may choose to set aside the contract of his own accord or by seeking the assistance of the court.
Messrs Albert Ding, Lee & Partners v. Cho Chooi Mei [2020] 5 CLJ 778 [HC]

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CONTRACT: Agreement - Validity - Agreement for payment of legal fees between legal firm and client - Firm engaged by client to act in divorce matter - Agreement for payment of legal fees provided that firm to charge by deducting 6% from monthly instalments payable by client's former husband for 60 months - Whether firm could claim for legal fees under agreement - Whether there was element of coercion - Whether agreement contingency fee arrangement - Whether terms of agreement unreasonable - Whether client fully apprised of facts and had full knowledge of implications of what she signed - Whether client could set aside agreement - Whether agreement valid

CONTRACT: Agreement - Coercion - Agreement for payment of legal fees between legal firm and client - Firm engaged by client to act in divorce matter - Agreement for payment of legal fees provided that firm to charge by deducting 6% from monthly instalments payable by client's former husband for 60 months - Allegation that client coerced into signing agreement - Lawyer allegedly threatened not to release sum payable by client's former husband to client if client refused to sign agreement - Whether there was element of coercion - Whether client voluntarily entered into agreement - Whether client coerced and pressured into entering agreement - Whether agreement valid - Whether firm entitled to legal fees under agreement - Whether client could set aside agreement - Contracts Act 1950, ss. 15, 19 & 24

CONTRACT: Contingency contract - Agreement for payment of legal fees - Contingency fee arrangement - Firm engaged by client to act in divorce matter - Agreement for payment of legal fees provided that firm to charge by deducting 6% from monthly instalments payable by client's former husband for 60 months - Whether agreement contingency fee arrangement - Whether allowed - Contracts Act 1950, s. 24

LEGAL PROFESSION: Duty to client - Breach - Legal firm and client entered into agreement for payment of legal fees - Agreement drafted in English language - Client not proficient in English language - Whether terms of agreement explained to client in her mother tongue - Whether client had separate legal advice - Whether client fully apprised of facts and had full knowledge of implications of what she signed - Whether advocate and solicitor communicated terms of agreement clearly and effectively to client - Whether client entered into agreement voluntarily - Whether there was breach of fiduciary duty

LEGAL PROFESSION: Solicitor/client - Legal fees - Legal firm and client entered into agreement for payment of legal fees - Firm engaged by client to act in divorce matter - Agreement for payment of legal fees provided that firm to charge by deducting 6% from monthly instalments payable by client's former husband for 60 months - Whether agreement contingency fee arrangement - Whether allowed - Legal Profession Act 1976, ss. 112 & 118(3)

EVIDENCE: Adverse inference - Failure to call material witness - Legal firm and client entered into agreement for payment of legal fees - Firm engaged by client to act in divorce matter - Agreement for payment of legal fees provided that firm to charge by deducting 6% from monthly instalments payable by client's former husband for 60 months - Allegation that client coerced into signing agreement - Lawyer allegedly threatened not to release sum payable by client's former husband if client refused to sign agreement - Lawyer not called to testify - Whether lawyer material witness - Whether failure to call lawyer to testify detrimental to case - Whether adverse inference ought to be invoked for failure to call lawyer - Evidence Act 1950, s. 114(g)

EVROL MARIETTE PETERS JC

For the plaintiff - Ronnie Tang Pei Xin; M/s Albert Ding, Lee & Partners

For the defendant - CW Yee; M/s Vooi & Yee

A 100% liability ought to be imposed on a road user who was involved in a road accident while driving or riding a motor vehicle without a valid licence. Section 26(1) of the Road Transport Act 1987 prohibits anyone from driving a motor vehicle without a valid driving licence. The act of driving or riding without one therefore constitutes an illegal act, and it should follow that such road user does not deserve any protection of the law.
Muhammad Noor Redzuan Misran v. Muhammad Amirul Hafiz Khairulazuin [2020] 5 CLJ 807 [HC]

ROAD TRAFFIC: Accident - Liability - Apportionment of liability at 80% on appellant and 20% on respondent - Appellant rode motorcycle without driving license - Whether prohibited from driving motor vehicle - Whether riding motorcycle without driving license was illegal act - Whether posed danger to himself and other road users - Whether appellant could be protected under law - Whether appellant was 100% liable - Road Transport Act 1987, ss. 26(1), 90 & 95

 

 

AWANG ARMADAJAYA AWANG MAHMUD JC

  • For the appellant - Teo Han Ley; M/s Teo & Assocs
  • For the respondent - Noor Fauziah Kadir; M/s S K Lee

The principle of double jeopardy only applies to criminal convictions and the issue does not arise where there is no criminal charge or conviction. This said, the Disciplinary Authority of the Public Services Commission, in dismissing a public servant from service after having earlier deducted his salary for the days he was unlawfully absent from work, cannot be said to have been guilty of double jeopardy; clearly, the decision to deduct the salary is not penal but administrative in nature. Also, the decision to dismiss is not tainted with any breach of natural justice or procedural impropriety merely because the public servant was not granted an oral hearing, since he was given the opportunity to exculpate himself by making a representation and explaining his conduct to the Authority.
Muhammad Sazrin Ismail v. Pengerusi Lembaga Tatatertib Kumpulan Sokongan (No 1) & Ors [2020] 5 CLJ 826 [HC]

ADMINISTRATIVE LAW: Certiorari - Application for - Application to quash decision of Disciplinary Appeal Board of Public Services Commission of Malaysia ('Appeal Board') - Disciplinary investigation carried on against applicant for being dishonest, untrustworthy and irresponsible - Allegations that applicant submitted fake medical certificates - Disciplinary authority found that applicant failed to exculpate himself in respect of charge - Applicant dismissed from public service - Appeal to Appeal Board dismissed - Whether decision of Appeal Board tainted with illegality, irrationality and procedural impropriety - Whether decision ought to be quashed - Public Officers (Conduct and Discipline) Regulations 1993, regs. 4(2) & 38(g)

ADMINISTRATIVE LAW: Public servant - Dismissal from service - Application for certiorari order to quash decision of Disciplinary Appeal Board of Public Services Commission of Malaysia ('Appeal Board') - Disciplinary investigation carried on against public servant for being dishonest, untrustworthy and irresponsible - Allegations that public servant submitted fake medical certificates - Disciplinary authority found that public servant failed to exculpate himself in respect of charge - Public servant dismissed from public service - Appeal to Appeal Board dismissed - Whether decision of Appeal Board tainted with illegality, irrationality and procedural impropriety - Whether decision ought to be quashed - Public Officers (Conduct and Discipline) Regulations 1993, regs. 4(2) & 38(g)

 

 

AZIZAH NAWAWI J

  • For the applicant - Ahmad Fakhri Abu Samah & Nur Sabrina Rusdi; M/s Azwar & Partners
  • For the respondents - Natra Idris; SFC

The decision of the Pendaftar Hakmilik Daerah, Kelang in refusing to register Forms 14A and 16A of the National Land Code (NLC) as so submitted by an applicant for the transfer and charging respectively of a Malay holding under Federated Malay States' Malay Reservation Enactment (MRE) on the grounds that the applicant is not a Malay based on (i) the applicant's father's Birth Certificate which showed that his father is an Indian; (ii) the applicant's Birth Certificate which showed that his mother is an Indian Muslim; and (iii) the Jabatan Pendaftaran Negara's letter which showed that the applicant is an Indian Muslim, is erroneous, unlawful and perverse, bearing in mind the fuller contents of the applicant's Birth Certificate as well the meaning, effect and purport of the word "Malay" in ss. 2 and 8(i) of the MRE. Since, the applicant's Birth Certificate states that he and his father are Malays and Muslims, and since the applicant essentially speaks Malay, the applicant has therefore satisfied all the three requirements emplaced by ss. 2 and 8(i) MRE for him to be a "Malay", namely, that he is a person who "belongs to a Malayan race", "habitually speaks the Malay language" and "professes the Moslem religion". On the facts and in the circumstances, an order of mandamus ought therefore to issue to compel the Registrar to register the land dealings in question.
Syed Shaharul Mohamed Nasir & Anor v. Pentadbir Tanah Daerah Klang & Anor [2020] 5 CLJ 842 [HC]

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ADMINISTRATIVE LAW: Judicial review - Mandamus - Application for - Seeking order of mandamus to compel District Land Administrator to register Forms 14A and 16A under National Land Code - District Land Administrator refused to register charges over land in favour of applicants on grounds that first applicant was not 'Malay' - Whether District Land Administrator estopped by its conduct from relying on s. 8(i) of Federated Malay States' Malay Reservations Enactment ('MRE') to deny first applicant was 'Malay' - Whether first applicant a 'Malay' within meaning of ss. 2 and 8(i) of MRE - Whether s. 8(i) of MRE barred registration of charge in favour of bank - Whether court should exercise discretion to grant mandamus order pursuant to s. 44(1) of Specific Relief Act 1950 - Whether applicants entitled to monetary compensation and damages

LAND LAW: Charge - Registration of - Registration of charge over land - District Land Administrator refused to register charges in favour of applicants on grounds that first applicant was not 'Malay' - Applicants sought order of mandamus to compel District Land Administrator to register Forms 14A and 16A under National Land Code - Whether District Land Administrator estopped by its conduct from relying on s. 8(i) of Federated Malay States' Malay Reservations Enactment ('MRE') to deny first applicant was 'Malay' - Whether first applicant 'Malay' within meaning of ss. 2 and 8(i) of MRE - Whether s. 8(i) of MRE barred registration of charge in favour of bank - Whether court should exercise discretion to grant mandamus order pursuant to s. 44(1) of Specific Relief Act 1950 - Whether applicants entitled to monetary compensation and damages

 

WONG KIAN KHEONG J

  • For the applicants - Azhar Nur Abdul Manaf; M/s Zain Johnson & Assocs
  • For the respondents - Siti Fatimah Talib; Assistant State Legal Advisor, Selangor

ARTICLES

CLJ Article(s)

  1. THE RIGHTS OF A COASTAL AND USER STATE IN THE CONTIGUOUS ZONE [Read excerpt]
    WAN SITI ADIBAH WAN DAHALAN, AIDA FARIHAN M SALEH & FARAH HANA ZAINOL* [2020] 5 CLJ(A) xvii

  2. [2020] 5 CLJ(A) xvii
    logo
    MALAYSIA

    THE RIGHTS OF A COASTAL AND USER STATE IN THE CONTIGUOUS ZONE

    WAN SITI ADIBAH WAN DAHALAN AIDA FARIHAN M SALEH & FARAH HANA ZAINOL*

    Abstract

    The crux of discussion in this paper relates to two main parts. The first part deals with the rights conferred by the Law of the Sea Convention 1982 ('LOSC') to a coastal state in the contiguous zone while the second part dwells on the rights of a user state in the contiguous zone as embedded under the LOSC. In the first part, the discussion on the exercise of the necessary control rights by a coastal state to prevent or punish the violation of fiscal, custom, immigration and sanitary laws and regulation, and the three related issues. The first issue is related to the exercise or extent of the terms 'control necessary' stipulated in art. 33 of LOSC since the LOSC itself is silent on it. The second issue is regarding the extent of the right of hot pursuit in the contiguous zone and the third issue is relating to the archaeological and historical objects found at sea in the contiguous zone. The second part of this paper discusses the rights of a user state in the contiguous zone. In addition, this paper also addresses two related matters namely the historical background and the scope of contiguous zone as opposed to other maritime zones. The discussion in this paper is crucial as it ventures into the rights of both sides namely the coastal state and the user State in the contiguous zone.

    . . .

    * Faculty of Law, Universiti Kebangsaan Malaysia

LNS Article(s)

  1. COVID-19: MALAYSIAN ADMIRALTY COURT'S PERSPECTIVE [Read excerpt]
    by MATHEW KURIEN* [2020] 1 LNS(A) lxvii

  2. [2020] 1 LNS(A) lxvii
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    MALAYSIA

    COVID-19: MALAYSIAN ADMIRALTY COURT'S PERSPECTIVE

    by
    MATHEW KURIEN*

    Introduction

    No one could have fathomed the gravity of this COVID-19 pandemic. The country and most of the civilized world has been put on a reluctant pause of sorts — with every part of society grappling with the new normal — virtually overnight. The implementation of the Movement Control Order (MCO) since 18/3/2020 and subsequently the Conditional Movement Control Order (CMCO) and the Recovery Conditional Movement Control Order (RCMCO) till 31/8/2020 by the Malaysian Government promotes safe social distancing measures to pre-empt the trend of increasing local transmission of COVID-19. These measures were intended to significantly reduce physical movements and interactions in public and private places, to help quarantine and identify carriers, to minimize the spread of the disease and at the time of this writing, will remain in place until revoked.

    . . .

    *LL.B (Hons) London, CLP (Malaya), Advocate & Solicitor, High Court of Malaya, Partner - Messrs. Sativale Mathew Arun.

  3. UNDERSTANDING THE FUNDAMENTAL DIFFERENCES OF DATA PRIVACY LAWS BETWEEN THE US AND EU LEGAL SYSTEMS THROUGH A CLOSE EXAMINATION OF MAXIMILLIAN SCHREMS v . DATA PROTECTION COMMISSIONER AND THE INVALIDATION OF THE SAFE HARBOR FRAMEWORK [Read excerpt]
    by Tan Wai Kit* [2020] 1 LNS(A) lxviii

  4. [2020] 1 LNS(A) lxviii
    logo
    MALAYSIA

    UNDERSTANDING THE FUNDAMENTAL DIFFERENCES OF DATA PRIVACY LAWS
    BETWEEN THE US AND EU LEGAL SYSTEMS THROUGH A CLOSE EXAMINATION OF
    MAXIMILLIAN SCHREMS v . DATA PROTECTION COMMISSIONER AND
    THE INVALIDATION OF THE SAFE HARBOR FRAMEWORK


    by
    Tan Wai Kit*

    Introduction

    In the interconnected digital world, transborder data flows are part of everyday business and social interactions.[1] This, however, has presented itself as a difficult task for the European Union ("EU") to balance the interest of free flows of data and the protection of data privacy.[2] 'To get the best of both worlds',[3] the EU has decided to generally restrict data transfer to the non-European Economic Area ("EEA") unless Articles 25 and 26 of the Directive 95/46/ECare are satisfied.[4] Nonetheless, the diverging notions of privacy and inherent differences in data privacy protection frameworks across nations might be insurmountable hurdles for satisfying the 'adequacy test' and reaching eventual genuine accommodations.[5] Such divergence and differences can be clearly observed in the case of Maximillian Schrems v. Data Protection Commissioner whereby the Court of Justice of the European Union ("CJEU") had ruled that the Commission's adequacy decision with respect to the US-EU 'safe harbour' agreement on data protection ("SH") was invalid.[6]

    . . .

    * LLM (University of Bristol); LLB (Hons) (Multimedia University). He can be contacted at tanwk1993@gmail.com

LEGISLATION HIGHLIGHTS

Principal Acts

Number Title In force from Repealing
ACT 827 Currency Act 2020 Not Yet In Force -
ACT 826 Food Donors Protection Act 2020 31 March 2020 [PU(B) 166/2020] -
ACT 825 Anti-Fake News (Repeal) Act 2020 31 January 2020 -
ACT 824 Malaysian Health Promotion Board (Dissolution) Act 2019 1 April 2020 [PU(B) 119/2020] -
ACT 823 Finance Act 2019 Income Tax Act 1967 [Act 53] see s 3, Real Property Gains Tax Act 1976 [Act 169] see s 22, Stamp Act 1949 [Act 378] see s 27, Petroleum (Income Tax) Act 1967 [Act 543] see s 29, Sales Tax Act 2018 [Act 806] see s 35, Finance Act 2010 [Act 702] see s 37 and the Finance Act 2018 [Act 812] see s 39 -

Amending Acts

Number Title In force from Principal/Amending Act No
ACT A1617 Franchise (Amendment) Act 2020 Not Yet In Force ACT 590
ACT A1616 Central Bank Of Malaysia (Amendment) Act 2020 Not Yet In Force ACT 701
ACT A1615 Industrial Relations (Amendment) Act 2020 Not Yet In Force ACT 177
ACT A1614 Labuan Business Activity Tax (Amendment) Act 2020 10 February 2020 - para 2(a) and s 13 and 15; Year of assessment 2020 and subsequent years of assessment - para 2(b) and s 3, 4, 5, 6, 7, 9, 10, 11, 12 and 14; 1 January 2019 - s 8 ACT 445
ACT A1613 Carriage Of Goods By Sea (Amendment) Act 2020 Not Yet In Foce ACT 527

PU(A)

Number Title Date of Publication In force from Principal/ Amending Act No
PU(A) 185/2020 Copyright (Copyright Tribunal) (Amendment) Regulations 2020 19 June 2020 1 July 2020 PU(A) 212/2012
PU(A) 184/2020 National Skills Development (Compounding Of Offences) Regulations 2020 15 June 2020 16 June 2020 ACT 652
PU(A) 183/2020 Strata Titles (Conversion Of Subsidiary Title To Strata Title) (Federal Territory Of Kuala Lumpur) Rules 2020 11 June 2020 12 June 2020 - Federal Territory of Kuala Lumpur only ACT 318
PU(A) 182/2020 Prevention And Control Of Infectious Diseases (Compounding Of Offences) (Amendment) (No. 7) Regulations 2020 9 June 2020 10 June 2020 PU(A) 327/1993
PU(A) 181/2020 Prevention And Control Of Infectious Diseases (Measures Within Infected Local Areas) (No. 7) Regulations 2020 9 June 2020 10 June 2020 to 31 August 2020 ACT 342

PU(B)

Number Title Date of Publication In force from Principal/ Amending Act No
PU(B) 291/2020 Appointment Of Personal Data Protection Commissioner 22 June 2020 16 March 2020 ACT 709
PU(B) 290/2020 Revocation Of Declarations Of Quarantine Stations (No. 2) 2020 22 June 2020 23 June 2020 ACT 342
PU(B) 289/2020 Notification Of Registration Of New Plant Variety And Grant Of Breeder's Right 22 June 2020 23 June 2020 ACT 634
PU(B) 288/2020 Notification Under Section 10 22 June 2020 23 June 2020 ACT 283
PU(B) 287/2020 Notice Of Contested Election By-Election Of State Legislative Assembly Of N.23 Chini For The State Pahang 22 June 2020 23 June 2020 PU(A) 386/1981

Legislation Alert

Updated

Act/Principal No. Title Amended by In force from Section amended
PU(A) 212/2012 Copyright (Copyright Tribunal) Regulations 2012 PU(A) 185/2020 1 July 2020 Regulations 2 and 5; First Schedule and Second Schedule
ACT 342 Prevention and Control of Infectious Diseases Act 1988 PU(A) 179/2020 10 June 2020 First Schedule
AKTA 342 Akta Pencegahan Dan Pengawalan Penyakit Berjangkit 1988 PU(A) 179/2020 10 Jun 2020 Jadual Pertama
PU(A) 327/1993 Prevention and Control of Infectious Diseases (Compounding of Offences) Regulations 1993 PU(A) 182/2020 10 June 2020 First Schedule
ACT A1612 Copyright (Amendment) Act 2020 ACT 332 1 December 1987 [PU(B) 586/1987] Sections 28, 35 and 59C

Revoked

Act/Principal No. Title Revoked by In force from
PU(B) 112/2019 Appointment of Member of the Authority PU(B) 279/2020 1 June 2020 to 31 May 2022
PU(A) 64/2020 Perintah Kawalan Harga Dan Antipencatutan (Penentuan Harga Runcit Maksimum Bagi Petrol Dan Diesel) (No. 8) 2020 [Dibatalkan Oleh PU(A) 178/2020] PU(A) 178/2020 4 Jun 2020
PU(A) 64/2020 Price Control and Anti-Profiteering (Determination of Maximum Retail Price For Petrol and Diesel) (No. 8) Order 2020 PU(A) 178/2020 4 June 2020
PU(A) 336/2014 Income Tax (Deduction For Expenses in Relation to Secretarial Fee and Tax Filing Fee) Rules 2014 PU(A) 162/2020 Year of assessment 2020
PU(A) 133/2020 Peraturan-Peraturan Pencegahan Dan Pengawalan Penyakit Berjangkit (Langkah-Langkah Di Dalam Kawasan Tempatan Jangkitan) (No. 4) 2020 [Dibatalkan Oleh PU(A) 136/2020] PU(A) 136/2020 4 Mei 2020 hingga 12 Mei 2020