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Issue #29/2024 18 July 2024 | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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CASE(S) OF THE WEEKASPEN GLOVE SDN BHD v. TIALOC MALAYSIA SDN BHD [2024] 7 CLJ 1 (i) The court would be slow to stop another tribunal from exercising its perceived statutory obligation unless it is plainly and obviously clear that it has absolutely no jurisdiction from facts not in dispute or from legal interpretation that could not be seriously challenged; (ii) The contractual adjudication procedure could not stand in the way of a vested right to statutory adjudication conferred by the Construction Industry Payment and Adjudication Act 2012 ('CIPAA') on the unpaid party to a construction contract in writing which is not excluded or exempted under ss. 2, 3 or 40 of the CIPAA. To agree that the contractual adjudication clause under the FIDIC Construction Contract 2017 bars adjudication under the CIPAA would be to allow contracting out of the CIPAA; s. 24 of the Contracts Act 1950 would be engaged to strike down such a clause. CONSTRUCTION LAW: Adjudication - Adjudicator - Jurisdiction - Unpaid party commenced adjudication proceedings against paying party - Argument that parties had in FIDIC Construction Contract 2017 agreed to refer dispute to Dispute Avoidance Adjudication Board - Whether adjudicator lacked jurisdiction - Whether adjudicator may proceed when jurisdictional objection has been taken - Whether aggrieved party should raise matter on jurisdiction at stage of setting aside of adjudication decision - Construction Industry Payment and Adjudication Act 2012 CONSTRUCTION LAW: Construction contracts - Unpaid party commenced adjudication proceedings against paying party - Argument that parties had in FIDIC Construction Contract 2017 agreed to refer dispute to Dispute Avoidance Adjudication Board ('DAAB') - Whether reference to adjudication null and void - Whether reference to adjudication contrary and/or in breach of terms and conditions of contract entered into between parties - Whether dispute between parties ought to be referred to DAAB - Construction Industry Payment and Adjudication Act 2012 CIVIL PROCEDURE: Proceedings - Stay - Application for - Unpaid party commenced adjudication proceedings against paying party - Argument that parties had in FIDIC Construction Contract 2017 agreed to refer dispute to Dispute Avoidance Adjudication Board - Whether adjudicator lacked jurisdiction - Whether stay ought to be granted - Courts of Judicature Act 1964, s. 44 JUDICIAL QUOTES“I have imposed the maximum civil penalty of RM1,000,000 on the 1st defendant, after taking into account his position in GWP and the direct role he had in the Disposal.” “The opportunity to carry out insider trading is available to a person who is in a position of trust. Ironically, the person is given that position of trust precisely because he would have built a reputation as someone capable of being trusted. Thus, the commission of insider trading by one seen to be a vanguard of trust and integrity is in my view an ultimate betrayal.” - Per Adlin Abdul Majid J in Suruhanjaya Sekuriti Malaysia v. Lim Kok Boon & Anor [2024] CLJU 1151 APPEAL UPDATES
LATEST CASESLegal Network Series
CLJ 2024 Volume 6 (Part 5) The application of the concept of half-truth statements does not entail a duality approach in defamation law in Malaysia. In determining the ordinary and natural meaning of the words,
the court may consider their literal meaning or their implied,
inferred innuendo,
or indirect meaning. In addition,
the ordinary and natural meaning of the words also include implications or inferences that could be drawn from the words. Thus,
in a case that involves half-truth statements which taints the character and conduct of the person defamed,
the omission to reveal the full truth which would show otherwise,
makes the half-truth statement false in substance and thus,
defamatory in effect. TORT TORT: Defamation - Defamatory statements - Statement shared in WhatsApp group to mean claimant was convicted fraud - Omission to disclose claimant's acquittal of charge - Statement of half-truth - Whether could be considered in determining defamatory nature of statement - Whether created false impression and harmed reputation - Applicable test - Whether statement capable of bearing defamatory meaning and whether statement in fact defamatory - Whether common law of England applicable in absence of written law governing statement of half-truth TORT: Defamation - Defences - Statement shared in WhatsApp group to mean claimant was convicted fraud - Omission to disclose claimant's acquittal of charge - Whether injured reputation - Action of deliberately publishing half-truth statement - Whether actuated by malice - Whether malice defeated defences of qualified privilege and fair comment - Whether defence of justification sustainable in view of half-truth nature of statement
HASNAH MOHAMMED HASHIM FCJ
The issue of the correct standard of care in medical negligence cases in Malaysia has been resolved by the Federal Court in Zulhasnimar Hasan Basri & Anor v. Dr Kuppu Velumani P & Ors wherein the Bolam test,
as qualified in Bolitho v. City & Hackney Health Authority,
is applicable to the standard of care expected in a diagnosis and treatment. The Bolam test was postulated to address the standard of care for doctors who exercise the use of some special skill or competence for the duty of care owed towards their patients. The qualification is that the court may reject or depart from the body of medical opinion,
which does not withstand logical analysis for being unreasonable or irresponsible. CIVIL PROCEDURE | TORT CIVIL PROCEDURE: Judgment and orders - Consent judgment - Claim against doctors and hospital for breach of duty of care and contractual duties - Consent judgment with three out of four defendants - Claimant received ex gratia payments as full settlement of claim - Whether consent judgment entered without admission to liability - Whether non-party to consent judgment absolved from liability TORT: Negligence - Duty of care - Claim against doctors and hospital for breach of duty of care and contractual duties - Patient suffered from advanced glaucoma and partial blindness of right eye - Whether doctor aware of inherent and material risk in treatment and number of steroids prescribed - Whether doctor failed to inform patient of material risk - Whether but for doctor's breaches of duty of care patient would not have suffered glaucoma and partial loss of vision TORT: Negligence - Medical negligence - Standard of care in medical negligence cases - Reliance on case of Zulhasnimar Hasan Basri & Anor v. Dr Kuppu Velumani P & Ors ('Zulhasnimar') - Whether Bolam test as qualified in Bolitho v. City & Hackney Health Authority applicable to standard of care expected in diagnosis and treatment - Whether court may reject or depart from body of medical opinion which does not withstand logical analysis for being unreasonable or irresponsible - Whether test in Rogers v. Whitaker applicable in duty to advise on risks - Whether High Court correctly referred to Zulhasnimar pertaining to standard of care to be applied in medical negligence cases TORT: Damages - Claim for - Duty of care - Claim against doctors and hospital for breach of duty of care and contractual duties - Patient suffered from advanced glaucoma and partial blindness of right eye - Claim for special damages - Whether supported by evidence - Whether award of general damages by High Court manifestly excessive and ought to be varied - Whether aggravated damages pleaded - Whether award of future damages speculative in nature and ought to be set aside
KAMALUDIN MD SAID JCA
A consent order operates as a contract. Parties are bound by the terms of the consent order and there is no rule that permits or allows one party to seek to imply a term into a consent order merely because it is a consent order. A consent order stands on the same footing as a contract that has been agreed upon by parties in the usual way. Hence,
a party that seeks to rely on an implied term,
bears the same burden,
which must of necessity be onerous,
to demonstrate that the requisite legal criteria has been met before a term is to be implied. A term would only be implied if it satisfies the test of business necessity and if the party seeking to rely on it could satisfy the court that without such a term 'the contract would lack commercial or practical coherence'. CIVIL PROCEDURE CIVIL PROCEDURE: Judgments and orders - Consent order - Sale/transfer of property - Implied term - Whether there was implied term that property would be re-valued to reflect current market value - Whether plaintiff could seek re-valuation of property to cater for delay in implementation of consent order - Whether such term would change financial paradigm of consent order - Whether there was legal basis for terms to be implied - Whether there was abuse of court process
S NANTHA BALAN JCA
An employer,
in the exercise of its managerial prerogative,
may decide on the size of its workforce and even downsize it if outsourcing and computerisation and of late,
artificial intelligence,
can make it more lean,
effective and efficient. What is important and crucial is that the retrenchment exercise must be done bona fide and not in bad faith. It must not be for a collateral or colourable purpose under the guise of corporate restructuring to make it more competitive with its cost-cutting measures or its focusing on its core business. ADMINISTRATIVE LAW | LABOUR LAW ADMINISTRATIVE LAW: Judicial review - Appeal against decision of High Court - Employee retrenched from employment - Allegation by employee that her roles, functions and duties continued to exist - Industrial Court found that employee's termination on ground of redundancy was fairly done and redundancy package was reasonable - High Court quashed and set aside award of Industrial Court, granted reinstatement and awarded employee punitive compensation - Whether retrenchment bona fide - Whether reinstatement ordered conducive for industrial harmony - Whether punitive compensation awarded reasonable LABOUR LAW: Employment - Dismissal - Retrenchment - Redundancy - Employee retrenched from employment - Allegation by employee that her roles, functions and duties continued to exist - Whether retrenchment bona fide - Whether there was redundancy - Whether overall business of employer improving and expanding - Whether there was proof of cost-saving from restructuring exercise - Industrial Relations Act 1967, s. 30(5A)
LEE SWEE SENG JCA
Pendekatan yang boleh diambil oleh mahkamah apabila pihak pendakwaan ingin menangguhkan prosiding bawah s. 254 Kanun Tatacara Jenayah ('KTJ') adalah dengan mempertimbangkan: (i) terlebih dahulu untuk memberikan perintah pelepasan tidak terjumlah pada satu pembebasan ('DNAA'); (ii) untuk satu perintah dilepaskan yang membawa pada pembebasan ('AD'). Sekiranya tempoh perbicaraan yang dijalankan telah mengambil masa yang lama dan memprejudiskan tertuduh,
maka perintah AD boleh dipertimbangkan; dan (iii) sama ada DNAA adalah satu penindasan terhadap tertuduh dan berasaskan penyalahgunaan proses mahkamah dan bercanggah dengan kepentingan awam dan jika dapatan-dapatan ini positif,
mahkamah boleh mempertimbangkan perintah AD. Pada masa yang sama,
mahkamah juga perlu mempertimbangkan bidang kuasa Pendakwa Raya yang diperuntukkan bawah per. 145(3) Perlembagaan Persekutuan dan s. 376 KTJ. PROSEDUR JENAYAH PROSEDUR JENAYAH: Pendakwaan - Penangguhan - Kuasa Pendakwa Raya - Rayuan terhadap keputusan Mahkamah Majistret - Tertuduh-tertuduh dituduh bawah s. 379 Kanun Keseksaan kerana mencuri dua ekor lembu - Pihak pendakwaan memohon kes diberikan pelepasan tidak terjumlah sebagai satu pembebasan atas alasan kajian semula kes ekoran keterangan yang dibangkitkan - Budi bicara mahkamah bawah s. 254 Kanun Keseksaan - Tertuduh-tertuduh dilepaskan tidak terjumlah sebagai satu pembebasan - Sama ada keputusan Pendakwa Raya satu penyalahgunaan proses mahkamah dan bertentangan dengan kepentingan awam - Sama ada keputusan Majistret teratur
ROSLAN MAT NOR H
A visit to the locus in quo could assist a judge in arriving at the truth,
by giving the judge a better visualisation of the scene of an offence and fuller understanding on how the offence was committed. Hence,
in a circumstance where it could be shown that a visit to the locus in quo could truly assist the judge,
an application for it should be allowed by the court. CRIMINAL PROCEDURE CRIMINAL PROCEDURE: Revision - Application for - Locus in quo - Principles and procedures - Whether Sessions Court Judge ('SCJ') erred in refusing to allow application to visit locus in quo - Whether application ought to be allowed - Whether site visit would enable SCJ to better visualise scene of offence and better understand how offence was committed, thus, assisting her in arriving at truth
ASLAM ZAINUDDIN J
Article 150(1) of the Federal Constitution (‘FC’) states that,
if the Yang di-Pertuan Agong ('YDPA') is satisfied that a grave emergency exists whereby the security,
or the economic life,
or public order in the Federation or any part thereof is threatened,
he may issue a proclamation of emergency making therein a declaration to that effect. The Cabinet,
being the Executive arm of the Government,
possesses intelligence information on security matters that the courts do not have access to and,
therefore,
would be in the best position to advise the YDPA. On the authority of the overriding provision in art. 150(b)(8) of the FC that 'notwithstanding anything in this Constitution', the courts shall have no jurisdiction to entertain or determine in whatever form,
regarding the validity of a proclamation of emergency. The exercise of powers by the YDPA in proclaiming the emergency under art. 150 of the FC,
is therefore,
not justiciable. Article 150(8) of the FC is not violative of the basic structure of the FC and could not be struck down under art. 4(1) of the FC. On the contrary,
any attempt by the court to intervene would offend the doctrine of separation of powers,
which is part of the basic structure of the FC. CONSTITUTIONAL LAW | CIVIL PROCEDURE CONSTITUTIONAL LAW: Legislation - Constitutionality - Proclamation of emergency - Yang di-Pertuan Agong ('YDPA') expressed opinion that proclamation of emergency was unnecessary - Whether YDPA's opinion amounted to rejection of Prime Minister's advice - Whether Constitution (Amendment) Act 1981 ('Act A514') which amended art. 150 of Federal Constitution ('FC') by adding cls. (8) and (9) violative of basic structure of FC having regard to art. 4(1) thereof - Whether basic structure doctrine intrinsic part of FC - Whether art. 150(8) should be read with art. 40 of FC - Whether court should give effect to ouster clause in art. 150(8)(b) of FC - Whether exercise of powers by YDPA in proclaiming emergency under art. 150 of FC justiciable - Whether any attempt by court to intervene would offend doctrine of separation of powers CIVIL PROCEDURE: Originating summons - Striking out - Application for - Whether there was locus standi - Whether there were questions of law or issues raised that merit consideration - Whether issues raised of constitutional importance and arose from genuine public grievance - Whether gave rise to discrete point of constitutional construction that court has discretion to hear and dispose of
WAN AHMAD FARID SALLEH J
A question suitable for transmission of a special case by the High Court to the Federal Court must necessarily satisfy conditions provided in s. 84 of the Courts of Judicature Act 1964,
the effect of which will bring about a speedy and final determination of the proceedings at the High Court. The subject of the question to be transmitted must be a constitutional provision or provisions which necessitates proper construction of its interpretation. Once the provision or provisions are interpreted,
the question posed answered in the affirmative or negative will determine the dispute of the parties in the High Court. CIVIL PROCEDURE | CONSTITUTIONAL LAW CIVIL PROCEDURE: Courts - Proceedings - Reference of constitutional question by High Court - Application by Asian International Arbitration Centre ('AIAC') to transmit case to Federal Court - Whether High Court's power of judicial review extends to decision, action or omission of AIAC or its Director within meaning of O. 53 r. 2(4) of Rules of Court 2012, that is otherwise immune from civil suit - Whether question suitable for transmission to Federal Court - Whether satisfied condition under s. 84 of Courts of Judicature Act 1964 - Whether involved issue of challenging validity of legislation or interpreting provision of constitution - Whether issue pertained to illegality and irrationality which concerned statutory judicial review - Courts of Judicature Act 1964, s. 25(2) - Federal Constitution, arts. 4(1), 121(1) & 128 CONSTITUTIONAL LAW: Court - Judicial power - Reference of constitutional question by High Court - Application by Asian International Arbitration Centre ('AIAC') to transmit case to Federal Court - Whether High Court's power of judicial review extends to decision, action or omission of AIAC or its Director within meaning of O. 53 r. 2(4) of Rules of Court 2012, that is otherwise immune from civil suit - Whether question suitable for transmission to Federal Court - Whether satisfied condition under s. 84 of Courts of Judicature Act 1964 - Whether involved issue of challenging validity of legislation or interpreting provision of constitution - Whether issue pertained to illegality and irrationality which concerned statutory judicial review - Courts of Judicature Act 1964, s. 25(2) - Federal Constitution, arts. 4(1), 121(1) & 128
AMARJEET SINGH SERJIT SINGH J
CLJ 2024 Volume 6 (Part 6) The doctrine of total failure of consideration,
while not provided in the Contracts Act 1950,
provides a valid ground for one to rescind the contract wherein,
the consideration for which he has paid,
has totally failed. The doctrine of total failure of consideration is not confined to money paid under the contracts. This doctrine has now been applied by the courts in the Commonwealth,
including Malaysia,
to allow restitution of money,
benefit and/or advantage provided under contracts on the ground that the 'consideration' for the provision of the money/benefit/advantage has totally failed. CONTRACT CONTRACT: Consideration - Total failure of consideration - Plaintiff purchased land and assigned absolutely rights in land to defendant - Assignment and supplemental agreement - Part of purchase price set off from debt owed by plaintiff to defendant - Plaintiff concealed from defendant that land sold before conclusion of assignment - Whether there was total failure of consideration - Whether claim for special damages by plaintiff constituted unjust enrichment - Whether restitutionary remedy ought to be ordered against plaintiff - Whether plaintiff should return to defendant monies paid under contract
RAVINTHRAN PARAMAGURU JCA (Civil Appeal No: W-02(NCvC)(W)-439-03-2022)
(i) In a case where all of the ingredients of an offence under s. 23(1) of the Malaysian Anti-Corruption Commission Act 2009 have been stated,
the charges are considered clear and unambiguous. The particulars in each charge are sufficient to give the accused notice of the matter with which he was charged and he would not be misled in any manner whatsoever. There is no necessity on the prosecution to set out the manner or give further particulars as to how the offence is committed; (ii) There is a distinction between an error in stating the ingredients of an offence and an error in stating the particulars of an offence. If it is an error in stating the ingredients of an offence,
the defective charge is not curable under s. 422 of the Criminal Procedure Code ('CPC'). Whereas,
an error in stating the particulars of an offence is curable under ss. 156 and 422 of the CPC. CRIMINAL PROCEDURE | CIVIL PROCEDURE | STATUTORY INTERPRETATION CRIMINAL PROCEDURE: Charge - Defective charge - Allegation of - Whether charges disclosed no offence under s. 23(1) of Malaysian Anti-Corruption Commission Act 2009 - Whether there was breach of s. 154 of Criminal Procedure Code ('CPC') - Distinction between error in stating ingredients of offence or error in stating particulars of offence - Whether charges curable under ss. 156 and 422 of the CPC - Whether charges clear and unambiguous CIVIL PROCEDURE: Striking out - Appeal against - Appeal against striking out of charges - Defective charge - Allegation of - Whether charges disclosed no offence under s. 23(1) of Malaysian Anti-Corruption Commission Act 2009 - Whether there was breach of s. 154 of Criminal Procedure Code ('CPC') - Distinction between error in stating ingredients of offence or error in stating particulars of offence - Whether charges curable under ss. 156 and 422 of CPC - Whether charges clear and unambiguous - Whether fit and proper case for striking out STATUTORY INTERPRETATION: Definition - Associate - Organisation and society - Common feature - Whether group of people with common aim and interest or for particular purpose - Whether court ought to be more liberal in interpreting word 'organisation' to include society, club, partnership or association - Whether 'society' falls within definition of 'organisation' - Whether political society comes within definition of associate as defined under s. 3(c) of Malaysian Anti-Corruption Commission Act 2009 HADHARIAH SYED ISMAIL JCA
A contractor must give a written notice to the architect of his intention to apply for an extension of time within 28 days from the architect's instructions,
confirmed architect instructions or the commencement of any relevant event. What constitutes a 'relevant event' is defined in cl. 23.8 of the PAM 2006. CONSTRUCTION LAW | TORT CONSTRUCTION LAW: Claims - Extensions of time - Main contractor applied for extensions of time ('EOTs') for completion of construction project - Whether EOTs properly applied for by main contractor and approved by architect and contract administrator of project - Whether applications for EOTs in accordance with PAM 2006 - Whether there was conspiracy between parties in approval of applications for EOTs - Whether EOTs null and void - Whether EOTs ought to be set aside Hong Yik Trading CONSTRUCTION LAW: Claims - Payment - Claim by main contractor against developer for balance of payment owing for works done for construction project - Whether claim proven TORT: Conspiracy - Construction claims - Extensions of time ('EOTs') - Main contractor applied for EOTs for completion of construction project - Whether there was conspiracy between parties in approval of applications for EOTs - Whether there was conspiratorial agreement in approval of applications for EOTs in breach of PAM 2006 - Whether purpose of agreement to injure developer - Whether conspiratorial agreement executed resulted in damages to developer
FAIZAH JAMALUDIN J
An exercise of function relating to criminal investigation by a Government agency,
ie,
the Malaysian Anti-Corruption Commission,
can be challenged via a judicial review application. However,
the applicant of such application must successfully establish that the investigation conducted by the Government agency is tainted with mala fide or in bad faith. Mere allegation of harassment or intimidation,
or suspicion that the Government agency's investigation is tainted with mala fide,
without more,
does not satisfy the said requirement. ADMINISTRATIVE LAW | CRIMINAL LAW ADMINISTRATIVE LAW: Judicial review - Application for leave - Application against investigation conducted by Malaysian Anti-Corruption Commission ('MACC') - Whether amenable to judicial review - Whether mala fide successfully established on part of MACC - Whether investigation commenced on offence allegedly committed more than 20 years ago proper - Whether issue of mala fide ought to be tried in criminal trial - Whether amended reliefs sought, for orders of certiorari to quash charges, tantamount to collateral attack - Whether application ought to be dismissed CRIMINAL LAW: Corruption - Investigation - Malaysian Anti-Corruption Commission ('MACC') commenced investigation against former Minister of Finance and his family after revelation of offshore companies, also referred as 'tax havens', related to them - Application for leave for judicial review against investigative powers of MACC - Whether amenable to judicial review - Whether mala fide successfully established on part of MACC
WAN AHMAD FARID WAN SALLEH J
The right of members to requisition a meeting,
pursuant to s. 311(1) of the Companies Act 2016,
does not require any minimum shareholding threshold. Such right is to be contrasted with the obligation of directors,
to convene a meeting upon receiving a requisition from members holding at least 10% of the paid-up capital,
as stipulated by s. 311(3) of the same Act. COMPANY LAW COMPANY LAW: Director - Removal - Notice of requisition issued to convene extraordinary general meeting ('EGM') to move ordinary resolution to remove director - EGM held and director removed - Challenge against notice of requisition, EGM and resultant resolution - Whether valid and lawful - Whether director required to hold minimum 10% shareholding to requisition EGM - Whether removed director estopped from challenging validity of notice of requisition and EGM due to prolonged acquiescence - Companies Act 2016, s. 311(1) COMPANY LAW: Meetings - Extraordinary general meeting - Notice of requisition - Notice of requisition issued to convene extraordinary general meeting ('EGM') to move ordinary resolution to remove director - EGM held and director removed - Challenge against notice of requisition - Allegation that notice of requisition contained misrepresentation - Whether rendered notice of requisition defective - Whether EGM convened pursuant to notice of requisition and ensuing resolution void - Whether had caused substantial injustice that could not be cured by any other order
ATAN MUSTAFFA YUSSOF AHMAD J
In interpreting a provision of a taxing statute,
the intention of Parliament ought to be considered. Therefore,
in a situation where the taxing statute or Parliament are silent on whether any amendment to any of the provisions of the taxing statute can be applied retrospectively,
the court should refrain from making an interpretation that the amendment to the provisions can be applied retrospectively. ADMINISTRATIVE LAW | REVENUE LAW ADMINISTRATIVE LAW: Judicial review - Certiorari - Application for - Seeking to quash decision of Collector of Stamp Duties ('Collector') to dismiss application for refund of stamp duty paid - Refund application dismissed by Collector because of non-compliance with 12-month time limitation period prescribed under s. 57(f)(i)(a) of Stamp Act 1949 - Whether decision of Collector tainted with illegality, irregularity and/or procedural impropriety - Whether amendment to s. 57(f)(i)(a) of Stamp Act 1949 ought to apply prospectively or retrospectively - Stamp Act 1949, s. 57(f)(i)(a) - Finance Act 2021, ss. 36 & 40 REVENUE LAW: Stamp duty - Refund - Application for - Seeking for refund of stamp duty paid due to spoiled stamp - Refund application rejected by Collector of Stamp Duties ('Collector') because of non-compliance with 12-month time limitation period prescribed under s. 57(f)(i)(a) of Stamp Act 1949 - Whether decision of Collector tainted with illegality, irregularity and/or procedural impropriety - Whether amendment to s. 57(f)(i)(a) of Stamp Act 1949 ought to apply prospectively or retrospectively - Stamp Act 1949, s. 57(f)(i)(a) - Finance Act 2021, ss. 36 & 40
FARIDZ GOHIM ABDULLAH JC
The difference between an act and an omission as a legal wrong is that,
in the former,
a positive act of the defendant causes harm to the plaintiff but in the latter,
the inaction on the part of the defendant causes harm to the plaintiff. Omissions may give rise to a duty of care. The law provides three general groups of scenarios where an individual has a duty to act,
ie,
where the defendant has control of a situation,
where the defendant has assumed responsibility and where the defendant has created or adopted a risk. TORT TORT: Negligence - Unlawful arrest and detention - Claim - Claimant unlawfully arrested by police and detained twice - Case of mistaken identity - Wanted person allegedly wrongly used claimant's identity card number - Whether arrests and detentions in accordance with law - Whether police took reasonable steps to update details in database - Whether there were breaches of statutory duties in performance of police function - Whether police had caused claimant to suffer loss and damage - Whether claimant entitled to declarations, reliefs and damages claimed TORT: Misfeasance in public office - Claimant unlawfully arrested by police and detained twice - Case of mistaken identity - Wanted person allegedly wrongly used claimant's identity card number - Whether misfeasance in public office proven TORT: Liability - Vicarious liability - Unlawful arrest and detention - Claim - Claimant unlawfully arrested by police and detained twice - Case of mistaken identity - Wanted person allegedly wrongly used claimant's identity card number - Whether arrests and detentions in accordance with law - Whether police took reasonable steps to put and/or update details in database - Whether there were breaches of statutory duties in performance of police function - Whether Government of Malaysia vicariously liable for actions, conducts and failures of police
JOHAN LEE KIEN HOW J
ARTICLESLNS Article(s)
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