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Issue #19/2025
08 May 2025
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CASE SPOTLIGHTS
AMINAH AHMAD (MENYAMAN ATAS KAPASITI PERIBADINYA DAN BAGI PIHAK 56 PESARA PERKHIDMATAN AWAM) v. Pension adjustments under the Pensions Adjustment Act 1980 are linked to salary revisions for serving Government employees. When serving Government employees receive a salary revision, pensioners are also entitled to a corresponding adjustment to their pensions. Service circulars are evidence to determine whether salary revisions have occurred. Mere enhancements or restructuring of salary scales, without actual salary increases, do not constitute salary revisions for pension adjustment purposes. A clear and unconditional salary adjustment, however, in this case a 'Kenaikan Gaji Tahunan (KGT)', constitutes a salary revision that triggers corresponding pension adjustments. ADMINISTRATIVE LAW: Judicial review - Challenge against decision of Public Service Department - Pensions - Pensions regulated by Pensions Act 1951 and Pensions Adjustment Act 1980 amended by Pensions Adjustment (Amendment) Act 2013 - Amending Act changed pensions adjustment formulas - Changes affected those retired before 1 January 2013 - Impugned amendments resulted in situation less favourable to pensioners when compared with preceding retirement adjustment scheme - Demand by pensioners that retired before 1 January 2013 for pensions adjustments and payment of arrears - Pensions reverted to December 2012 - Whether there could be retrospective adjustments - Whether adjustment could be made without salary scale changes - Whether service circulars showed that salary revisions occurred - Whether judicial review sought abuse of process - Whether there was res judicata ADMINISTRATIVE LAW: Public servants - Pensions - Pensions regulated by Pensions Act 1951 and Pensions Adjustment Act 1980 amended by Pensions Adjustment (Amendment) Act 2013 - Amending Act changed pensions adjustment formulas - Changes affected those retired before 1 January 2013 - Impugned amendments resulted in situation less favourable to pensioners when compared with preceding retirement adjustment scheme - Demand by pensioners that retired before 1 January 2013 for pension adjustments and payment of arrears - Pensions reverted to December 2012 - Whether there could be retrospective adjustments - Whether adjustment could be made without salary scale changes - Whether service circulars showed that salary revisions occurred APPEAL UPDATES
LATEST CASESLegal Network Series
CLJ 2025 Volume 4 (Part 5) The duty of care beholden upon a solicitor is not contingent upon him being paid for his services by the client. Therefore, even if such a service is given pro bono, that duty remains, and a breach thereof would render the solicitor liable. The solicitor must, at all material times, exercise reasonable skill and care in securing and preserving the client's interest. LEGAL PROFESSION | TORT
LEGAL PROFESSION: Duty of care - Professional negligence - Client held liable for damages in civil suit - Whether solicitor exercised reasonable skill and care in securing and preserving client's interest - Standard of care - Whether same as other skilled professionals - Whether standard of care breached - Whether satisfied 'but for' test - Whether there was link between damages suffered by client and act of solicitor - Whether loss in damages in earlier suit determinant factor in finding of professional negligence TORT: Negligence - Professional negligence - Duty of care - Client held liable for damages in earlier civil suit - Whether solicitor exercised reasonable skill and care in securing and preserving client's interest - Standard of care - Whether same as other skilled professionals - Whether standard of care breached - Whether satisfied 'but for' test - Whether there was link between damages suffered by client and act of solicitor - Whether loss in damages in earlier suit determinant factor in finding of professional negligence
Hasnah Mohammed Hashim FCJ
(i) Section 57(a)(ii) of the Sales Tax Act 2018 ('STA'), read together with s. 2, expressly states that no sales tax shall be levied and payable on taxable goods transported between a free zone and to bonded/special areas in principal customs areas. In this case, the Director General of Customs's action in raising a bill of demand for the recovery of sales tax under s. 28 of the STA is tainted with illegality, since such sales tax cannot be levied and is not payable. It is a fundamental principle of law that taxes or duties cannot be imposed on a subject without clear words in any written law, and taxing statutes must be construed in accordance with this principle; (ii) Applying the purposive approach in interpreting reg. 28(1) of the Free Zones Regulations 1991 and s. 57(a)(ii) of the STA, the said provisions provide for a free tax regime for goods transported or moved between free zones and other bonded/special areas in the principal customs area. Any purported error in an import declaration form does not oust the provisions in reg. 28 or s. 57(a)(ii) to give rise to duties and/or tax for goods transported between the special areas. CUSTOMS & EXCISE | REVENUE LAW | ADMINISTRATIVE LAW | STATUTORY INTERPRETATION
CUSTOMS & EXCISE: Duties and taxes - Bills of demand - Imposition of customs duties and taxes due to incorrect declaration in form - Whether sales tax levied and payable on taxable goods transported between free zone and other bonded/special areas in principal customs area - Whether action for recovery of sales tax under s. 28 of Sales Tax Act 2018 ('STA') tainted with illegality - Whether payment of import duties or taxes for removal or transportation of goods from free zone to bonded/special areas in principal customs area required - Whether errors in declaration form ousted provisions in reg. 28 of Free Zones Regulations 1991 or s. 57(a)(ii) of STA to give rise to duties or tax for goods transported between special areas - Free Zones Act 1990, s. 7(1)(b) REVENUE LAW: Duties and taxes - Bills of demand - Imposition of customs duties and taxes due to incorrect declaration in form - Whether sales tax levied and payable on taxable goods transported between free zone and other bonded/special areas in principal customs area - Whether action for recovery of sales tax under s. 28 of Sales Tax Act 2018 ('STA') tainted with illegality - Whether payment of import duties or taxes for removal or transportation of goods from free zone to bonded/special areas in principal customs area required - Whether errors in declaration form ousted provisions in reg. 28 of Free Zones Regulations 1991 or s. 57(a)(ii) of STA to give rise to duties or tax for goods transported between special areas - Free Zones Act 1990, s. 7(1)(b) ADMINISTRATIVE LAW: Judicial review - Certiorari - Application to quash decision of affirming bills of demand - Imposition of customs duties and taxes due to incorrect declaration in form - Whether sales tax levied and payable on taxable goods transported between free zone and other bonded/special areas in principal customs area - Whether action for recovery of sales tax under s. 28 of Sales Tax Act 2018 ('STA' ) tainted with illegality - Whether payment of import duties or taxes for removal or transportation of goods from free zone to bonded/special areas in principal customs area required - Whether errors in declaration form ousted provisions in reg. 28 of Free Zones Regulations 1991 or s. 57(a)(ii) of STA to give rise to duties or tax for goods transported between special areas - Free Zones Act 1990, s. 7(1)(b) STATUTORY INTERPRETATION: Construction of statutes - Interpretation - Purposive approach - Free Zones Regulations 1991, reg. 28(1) - Whether require payment of import duties or taxes for removal or transportation of goods from free zone to bonded/special areas in principal customs area - Whether errors in declaration form ousted provisions in reg. 28 and s. 57(a)(ii) of Sales Tax Act 2018 to give rise to duties or tax for goods transported between special areas Ravinthran Paramaguru JCA
(i) For a court to exercise its judicial review power, there must be a 'decision' made by a decision-maker or a refusal by the decision-maker to make a decision. This decision must affect the aggrieved party by altering their rights or obligations or depriving them of benefits they are entitled to. A mere forwarding of information or a letter from another entity, as in this case, does not constitute a 'decision' that is amenable to judicial review, pursuant to O. 53 r. 2(4) of the Rules of Court 2012 ('ROC'). Similarly, a 'request' for information is not equivalent to a 'decision' that can be challenged through judicial review; (ii) As provided under O. 53 r. 3(6) of the ROC, applications for judicial review must be made promptly within three months from when the grounds for the application first arose or when the decision was first communicated to the applicant. If a judicial review application is filed outside this three-month window, the court lacks jurisdiction to grant leave or hear the application. ADMINISTRATIVE LAW | LIMITATION
ADMINISTRATIVE LAW: Judicial review - Challenge against letters and requests - Membership of rewards loyalty programme at company's resort - Membership application form contained personal information of customers - Requests by Director General of Inland Revenue ('DGIR') for information on owners of membership card - Requests rejected by company - DGIR forwarded letter by Department of Personal Data Protection ('DPDP') confirming that company may disclose customers' personal data as DGIR authorised to request for such information - Company commenced judicial review against DGIR and Commissioner and Deputy Commissioner of DPDP - Whether there was decision by decision-maker - Whether there was refusal by decision-maker to make decision - Whether decision affected aggrieved party - Whether altered aggrieved party's rights or obligations or deprived benefits - Whether letters and requests constituted 'decision' - Whether amenable to judicial review - Rules of Court 2012, O. 53 LIMITATION: Judicial review - Challenge against letters and requests - Membership of rewards loyalty programme at company's resort - Membership application form contained personal information of customers - Requests by Director General of Inland Revenue ('DGIR') for information on owners of membership card - Requests rejected by company - DGIR forwarded letter by Department of Personal Data Protection ('DPDP') confirming that company may disclose customers' personal data as DGIR authorised to request for such information - Company commenced judicial review against DGIR and Commissioner and Deputy Commissioner of DPDP - Whether application for judicial review made within time frame stipulated in O. 53 r. 3(6) of Rules of Court 2012 - Whether court seized with jurisdiction to grant leave or to hear substantive judicial review application
Azizah Nawawi JCA
When a charge mentions a specific date on which the offence under the charge is alleged to have been committed, it must be proven beyond reasonable doubt that the accused had indeed committed the offence on the said date. The courts, in convicting the accused under the charge, may not rely on evidence that the accused had, on other dates, committed a similar offence. That would render the conviction unsafe. CRIMINAL PROCEDURE
CRIMINAL PROCEDURE: Appeal - Appeal against conviction and sentence - Sexual Offences Against Children Act 2017, s. 14(a) - Charge at Sessions Court for committing sexual physical assault upon minor - Accused person convicted and sentenced - Whether decision ought to be disturbed - Whether commission of offence proved beyond reasonable doubt - Whether Sessions Court carried out balancing exercise CRIMINAL PROCEDURE: Appeal - Additional evidence - Accused person convicted and sentenced for offence under s. 14(a) of Sexual Offences Against Children Act 2017 - Application by accused person to adduce instructions to previous counsel - Whether inconsistent with witness statement - Whether instructions were alibi - Whether evidence regarding alibi adduced during full trial - Whether alibi raised reasonable doubt towards prosecution's case
Lim Hock Leng J
A travel ban under the Sales Tax Act 2018 cannot be imposed solely because tax is owing. It requires a reasonable belief that the individuals are about to or likely to leave the country without paying. ADMINISTRATIVE LAW
ADMINISTRATIVE LAW: Judicial review - Application for - Travel ban - Challenge against decision/action of Customs Department and Immigration Department - Underpayment of sales tax - Customs Department issued assessment notice to company - Company appealed against demanded sales tax by applying for remission from Minister of Finance - Appeal pending consideration - Customs Department issued request to Immigration Department to impose travel ban on company directors - Whether there were reasons to believe that company directors were about or were likely to leave country - Whether request to issue travel ban can be made purely on basis that tax was owing - Whether action/decision tainted with irrationality, illegality and was breach of natural justice - Sales Tax Act 2018, s. 31(1)
Anand Ponnudurai J
(i) A developer, who is the ultimate beneficiary of all goods supplied by various suppliers for its property development, is not obliged to pay the unpaid suppliers down the chain in the event that the developer's main contractor and/or subcontractors with whom the suppliers had contracted failed to make payments for the goods so supplied. Based purely on the doctrine of privity of contract, where there is a breach of contract by the subcontractor when it failed to pay the supplier under the terms of the agreement, the proper recourse for the supplier would be to claim against the subcontractor and not the developer; (ii) The supplier cannot bring itself within s. 71 of the Contracts Act 1950 when it has failed to show it had done the works or delivered the special equipment and its related works for the developer at the material times. CONTRACT
CONTRACT: Agreement - Concession agreement - Supply of equipment for project - Concessionaire appointed main contractor who subcontracted part of works to subcontractor - Subcontractor engaged supplier to install and commission special equipment - Failure of subcontractor to make payment to supplier - Whether supplier could claim payment from concessionaire - Privity of contract - Whether arose between concessionaire and supplier - Whether proper recourse for supplier to claim against subcontractor - Whether there was retention of title clause in agreement - Contracts Act 1950, s. 71 - Whether applicable - Whether there would be unjust enrichment - Whether concessionaire estopped from denying liability CONTRACT: Privity of contract - Concession agreement - Supply of equipment for project - Concessionaire appointed main contractor who subcontracted part of works to subcontractor - Subcontractor engaged supplier to install and commission special equipment - Failure of subcontractor to make payment to supplier - Whether supplier could claim payment from concessionaire - Privity of contract - Whether arose between concessionaire and supplier - Whether proper recourse for supplier to claim against subcontractor
Ong Chee Kwan J
(i) A party cannot re-litigate issues that were, or could have been, raised in a previous suit. If evidence, allegedly fraudulent or perjured, was available during a prior suit, claims based on that evidence must be pursued within that suit, not in a new proceeding; (ii) In Malaysia, the tort of malicious prosecution is limited to claims arising from the mala fide institution of winding-up or bankruptcy proceedings. It does not extend to general allegations of malicious prosecution in ordinary civil proceedings; (iii) The Malaysian common law does not recognise a general tort of fraud based on alleged perjury in previous civil proceedings. Recognising such a tort would contradict the doctrine of res judicata and witness immunity; (iv) Witnesses are entitled to immunity from claims based on their evidence given in court. Even if the conduct of a witness in a previous suit is considered egregious, new legal proceedings based on that conduct is not permissible. EVIDENCE | TORT | CIVIL PROCEDURE
EVIDENCE: Witness - Perjury - Claimant commenced civil suit against party in earlier suit - Witnesses had given evidence in earlier suit - Claimant later claimed against witnesses based on tort - Whether there was substantial duplication of issues and reliefs - Whether against principle of res judicata - Whether claim abuse of process - Whether claimant barred from pursuing claim TORT: Abuse of process - Claim - Claimant commenced civil suit against party in earlier suit - Witnesses had given evidence in earlier suit - Claimant later claimed against witnesses based on tort of abuse of process - Whether facts that claimant relied on in claim under torts available during earlier suit - Whether claim ought to be struck out TORT: Malicious prosecution - Claimant commenced civil suit against party in earlier suit - Witnesses had given evidence in earlier suit - Claimant later claimed against witnesses based on tort of malicious prosecution - Malaysian jurisprudence on cause of action of malicious prosecution - Limitations - Whether extended to allegations raised by claimant against witnesses TORT: Conspiracy - Claimant commenced civil suit against party in earlier suit - Witnesses had given evidence in earlier suit - Claimant later claimed against witnesses based on tort of conspiracy - Whether tort of conspiracy established TORT: Fraud - Perjury - Claimant commenced civil suit against party in earlier suit - Witnesses had given evidence in earlier suit - Claimant claimed against witnesses based on tort of fraud based on perjury - Position in Malaysia regarding general tort of fraud based on perjury - Whether issue of perjury or presentation of false evidence should have and could have been raised in earlier suit - Whether claim ought to be struck out CIVIL PROCEDURE: Striking out - Application for - Claimant commenced civil suit against party in earlier suit - Witnesses had given evidence in earlier suit - Claimant claimed against witnesses based on tort - Witnesses applied to strike out claim - Whether claim subject to doctrine of res judicata in narrow and wider sense - Whether there was substantial duplication of issues and reliefs - Whether against principle of res judicata - Whether claim abuse of process - Whether claimant barred from pursuing claim based on tort of abuse of process - Rules of Court 2012, O. 18 r. 19 Mohd Arief Emran Arifin JC
Beban membuktikan pembelaan ketidakwarasan, bawah s. 84 Kanun Keseksaan, terletak pada tertuduh. Walaupun dengan laporan psikiatri, tertuduh mesti mengemukakan keterangan tentang keadaan mentalnya semasa kejadian dan pilihannya untuk berdiam diri tidak melepaskan beban ini. Keterangan saksi pakar, melalui laporan psikiatri, tidak mencukupi dengan sendirinya untuk membuktikan pembelaan tidak waras yang ditimbulkan oleh seorang tertuduh; (ii) Mahkamah tidak terikat dengan pendapat saksi pakar. Keterangan pakar hanyalah satu bahagian daripada keseluruhan bukti. Walaupun keterangan pakar boleh membantu mahkamah, mahkamah mesti menilainya berdasarkan semua keterangan lain dan membuat keputusannya sendiri. UNDANG-UNDANG JENAYAH
UNDANG-UNDANG JENAYAH: Kesalahan - Kesalahan melibatkan dadah - Tertuduh mempunyai milikan dadah jenis kanabis, menanam pokok kanabis dan memberikan diri sendiri dadah - Tertuduh mengalami 'bipolar disorder' - Pembelaan 'legal insanity' - Sama ada pembelaan berjaya dibuktikan - Sama ada mahkamah boleh membuat dapatan dengan hanya bergantung pada keterangan saksi pakar apabila tertuduh memilih berdiam diri - Sama ada keterangan saksi pakar memadai untuk memenuhi ujian 'legal insanity' - Sama ada tertuduh tahu perbuatan-perbuatannya salah dan bertentangan dengan undang-undang - Akta Dadah Berbahaya 1952, ss. 6, 6B(1)(a) & 15(1)(a) - Kanun Tatacara Jenayah, s. 348 UNDANG-UNDANG JENAYAH: Pembelaan - Ketidakwarasan - Tertuduh mempunyai milikan dadah jenis kanabis, menanam pokok kanabis dan memberikan diri sendiri dadah - Tertuduh mengalami 'bipolar disorder' - Pembelaan 'legal insanity' - Sama ada pembelaan berjaya dibuktikan - Sama ada mahkamah boleh membuat dapatan dengan hanya bergantung pada keterangan saksi pakar apabila tertuduh memilih berdiam diri - Sama ada keterangan saksi pakar memadai untuk memenuhi ujian 'legal insanity' - Sama ada tertuduh tahu perbuatan-perbuatannya salah dan bertentangan dengan undang-undang - Kanun Keseksaan, s. 84 - Kanun Tatacara Jenayah, s. 348
Norsharidah Awang H
ARTICLESLNS Article(s)
LEGISLATION HIGHLIGHTSPrincipal Acts
Amending Acts
PU(A)
PU(B) Legislation Alert Updated
Revoked
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