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Issue #50/2025
11 December 2025
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CASE SPOTLIGHTS
CEMPAKA MEWAH SDN BHD v. (i) When interpreting s. 69(2) of the Courts of Judicature Act 1964 ('CJA') and r. 7(2) and (3A) of the Rules of the Court of Appeal 1994 ('RCA'), the court should depart from a strict and literal interpretation and instead adopt a purposive approach to avoid an impractical, undesirable, and absurd consequence that would negate the true spirit and purpose of the RCA and the appellate role of the Court of Appeal, as entrenched by s. 17A of the Interpretation Acts 1948 and 1967; (ii) A purposive interpretation of the relevant provisions means that the special conditions of Ladd v. Marshall, as codified under r. 7(3A) of the RCA, must be cumulatively and conjunctively applied against all applications to admit further evidence on appeal, regardless of the type or class of new evidence. The applicant must therefore satisfy the court that the evidence: (a) could not have been obtained with reasonable diligence for use at the trial; (b) would likely influence the decision of the court; and (c) must be presumably credible. STATUTORY INTERPRETATION: Construction of statutes - Leave of court to adduce new evidence at appellate stage - Purposive approach and literal interpretation - Whether court ought to depart from strict and literal interpretation of s. 69(2) of Courts of Judicature Act 1964 and r. 7(2) and (3A) of Rules of the Court of Appeal 1994 - Whether purposive approach ought to be adopted to avoid impractical, undesirable and absurd consequence - Krishnasamy Kuppusamy & Anor v. Pengarah Hospital Sultanah Aminah & Ors And Other Appeals - Interpretation Acts 1948 and 1967, s. 17A EVIDENCE: Fresh or further evidence - New evidence - Leave of court to adduce new evidence at appellate stage - Whether court should follow strict and literal interpretation of s. 69(2) of Courts of Judicature Act 1964 and r. 7(2) and (3A) of the Rules of the Court of Appeal 1994 - Whether ought to adopt purposive approach of interpretation to ascertain mischief the provisions practically seek to remedy - Whether requisites or threshold of admitting further evidence at appeal satisfied - Krishnasamy Kuppusamy & Anor v. Pengarah Hospital Sultanah Aminah & Ors And Other Appeals APPEAL UPDATES
LATEST CASESLegal Network Series
CLJ 2025 Volume 10 (Part 4) (i) The court has a discretion to invoke s. 265A of the Criminal Procedure Code ('CPC') to allow a witness to give their evidence anonymously. It is a provision that applies to any prosecution witness in a criminal trial who wishes to be protected by not disclosing his or her identity. It is not discriminatory in nature, and is therefore valid and constitutional; (ii) A trial judge could not be said to have failed to consider an accused's s. 112 statement, when its main contents had been regurgitated in the accused's oral evidence presented before the court. When the court has considered an accused's defence made orally at the close of a trial, the court had considered all the evidence adduced before it; (iii) In a sexual offence case, corroborating evidence supporting the evidence of a victim will enhance the credibility of the victim and assist in the establishment of the prosecution's case beyond a reasonable doubt. In a case where there are concurrent findings that the victim's evidence is credible, the conviction of the accused is safe as the elements of the charge under s. 376(1) of the Penal Code has been proven. CRIMINAL PROCEDURE | EVIDENCE
CRIMINAL PROCEDURE: Penal Code - Section 376(1) - Rape - Conviction and sentence - Appeal against - Defence - Statement - Failure to consider accused's statement under s. 112 of Criminal Procedure Code ('CPC') - Whether fatal to prosecution's case - Whether s. 182A of CPC breached - Whether defence of accused afterthought - Whether raised reasonable doubt - Whether there was miscarriage of justice - Whether conviction of accused safe CRIMINAL PROCEDURE: Penal Code - Section 376(1) - Rape - Conviction and sentence - Appeal against - Credibility of victim - Victim's conduct and demeanour tested against totality of corroborative evidence - Consideration of circumstantial evidence in entirety - Whether contradictions raised affected credibility of victim - Whether conviction of accused safe CRIMINAL PROCEDURE: Witness - Anonymous evidence - Accused charged for offence of rape of domestic helper - Witnesses allowed to testify anonymously - Whether procedure under s. 265A of Criminal Procedure Code ('CPC') complied with - Whether there was miscarriage of justice or prejudicial effect - Whether s. 265A(2) and (3) of CPC valid and constitutional - Whether arts. 5(1) and 8(1) of Federal Constitution breached - Witness Protection Act 2009, s. 20(1)(a) & (b) EVIDENCE: Corroborative evidence - Sexual offence case - Whether corroborative evidence could assist in establishment of prosecution's case beyond reasonable doubt - Admission of forensic and medical evidence - Consideration of circumstantial evidence in entirety - Whether could lead to reasonable inference that offence of rape occurred - Whether conviction of accused safe EVIDENCE: Additional evidence - Admission of - Whether amounted to documentary hearsay - Whether prerequisites of s. 32(1)(c) of Evidence Act 1950 fulfilled
Wan Ahmad Farid Wan Salleh FCJ
(i) Aggravated damages are a compensatory remedy for non-pecuniary injuries, such as emotional distress, humiliation or injury to feelings, suffered by a living claimant that are exacerbated by the tortfeasor's outrageous or oppressive conduct. Since these feelings cease on death, the claim cannot logically and legally survive for the benefit of the estate. The proper remedy for a tortfeasor's reprehensible or oppressive conduct after the death of the deceased, including litigation misbehaviour, is an award of substantial costs, not aggravated damages; (ii) The approach of calculating loss of dependency, by automatically deducting 1/3 from the net income and treating the remaining balance, ie, 2/3, as 'loss of dependency', is fundamentally flawed, especially when a household may have more than one member earning and capable of supporting the dependents; (iii) The income of the deceased that was not used to pay for household expenses or for the dependents' direct benefit 'at the time of the death', but was saved for a future use, cannot be computed as 'loss of support' under s. 7(3) of the Civil Law Act 1956. Such a claim is based on surmise and speculation. TORT | DAMAGES | CIVIL PROCEDURE
TORT: Negligence - Medical negligence - Misdiagnosis resulted in death of deceased - Claim by estate of deceased against hospital and attending doctor - Hospital and doctor admitted liability - Appeal by parties against quantum of damages and costs awarded by High Court DAMAGES: Negligence - Medical negligence - Medical/hospital expenses - Misdiagnosis resulted in death of deceased - Claim by estate of deceased against hospital and attending doctor - Whether medical/hospital expenses constituted reasonable expenses incurred as result of wrongful act, neglect or default of alleged tortfeasors - Civil Law Act 1956, s. 7(3) DAMAGES: General damages - Pain and suffering - Loss of amenities - Quantum of damages - Misdiagnosis resulted in death of deceased - Claim by estate of deceased against hospital and attending doctor - Deceased suffered tremendous pain and was conscious for about 24 hours and went through rounds of trauma associated with invasive procedures prior to death - Whether circumstances of case necessitated award of pain and suffering and loss of amenities - Appropriateness of quantum DAMAGES: Negligence - Medical negligence - Loss of dependency - Quantum of damages - Misdiagnosis resulted in death of deceased - Claim by estate of deceased against hospital and attending doctor - Method of determining loss of dependency by taking off 1/3 from net income of deceased and treating 2/3 balance as 'surplus income' as loss of dependency - Whether method flawed - Proof of contribution - Whether unutilised savings recoverable DAMAGES: Aggravated damages - Claim - Misdiagnosis resulted in death of deceased - Hospital and doctor admitted liability - Appeal by hospital and doctor against aggravated damages awarded to estate of deceased by High Court - Appropriateness of award and quantum - Whether excessive - Whether aggravated damages recoverable by estate of deceased - Proper remedy for post-death oppressive conduct CIVIL PROCEDURE: Costs - Appeal against trial costs - Medical negligence - Misdiagnosis resulted in death of deceased - Claim by estate of deceased against hospital and attending doctor - Trial took two days and claimants testified on factual matters and called medical expert - Whether costs awarded by High Court grossly inadequate - Fair and reasonable amount to be awarded S Nantha Balan JCA (Civil Appeal No: B-02(NCvC)(W)-1482-09-2023)
Non-compliance with r. 92(1) of the Valuers, Appraisers and Estate Agents Rules 1986 would not render an estate agency contract non-existent. This is aligned with the law of contract which does not require that a contract must be in writing for it to be valid and enforceable, as its existence could be implied from the conduct of the parties and the circumstances of the case. CIVIL PROCEDURE | CONTRACT
CIVIL PROCEDURE: Appeal - Judgments - Appeals against judgment of High Court - High Court found no estate agency contract existed between estate agency and client - High Court ordered client to pay estate agency for estate agency services rendered by way of quantum meruit, since estate agency was effective cause of sale of property - Whether High Court decision plainly wrong - Whether non-compliance with r. 92(1) of Valuers, Appraisers and Estate Agents Rules 1986 rendered estate agency contract non-existent - Whether estate agency contract must be in writing for it to be valid and enforceable CONTRACT: Agreement - Estate agency contract - Estate agency claimed for professional fees for estate agency services rendered to client with respect to sale of property - High Court ordered client to pay estate agency by way of quantum meruit since estate agency was effective cause of sale of property - Whether estate agency contract must be in writing to be valid and enforceable - Valuers, Appraisers and Estate Agents Rules 1986, r. 92(1)
Nazlan Mohd Ghazali JCA (Appeal No: W-04(NCvC)(W)-355-09-2023)
(i) While an insurer may require the claimant to furnish supporting documents before disbursing payment, this requirement presupposes that the claim is still under evaluation and has not yet been adjudicated. Once judgment is entered, however, the duty to satisfy it arises from the judgment itself, not from subsequent administrative or regulatory instruments; (ii) The mere assertion of reputational harm or regulatory procedure cannot displace a claimant's statutory entitlement to enforce a judgment through winding-up proceedings, especially when the debt is clear, final and remain unsatisfied. CIVIL PROCEDURE
CIVIL PROCEDURE: Injunction - Fortuna injunction - Injunction to restrain presentation of winding-up petition - Statutory notice demanding payment of judgment sum issued under s. 466(1) of Companies Act 2016 - Whether compliance with judgment sum contingent upon outstanding documentation - Whether s. 195 of Financial Services Act 2013 could be invoked to invalidate statutory notice - Whether there was bona fide dispute of judgment sum - Whether intended petition had chance of success - Whether mere assertion of reputational harm and regulatory procedure could displace claimant's statutory entitlement to enforce judgment
Yusrin Faidz Yusoff JC
(i) A plaintiff has the locus standi to claim for the surrender and delivery of containers from a third party who are holding the containers as a shipping agent for owners of ship liners where the prerequisites for the transfer of ownership stipulated in the settlement agreement between the plaintiff and the ship liner company are satisfied; (ii) General liens are exceptional in law and they only exist where expressly agreed or established by long standing customs and usage or recognised by law for certain profession or trade. In this case, the agency agreement entered into between the shipping agent and the ship liner company did not grant the shipping agent any contractual lien over any of the containers in its possession for any outstanding fees and disbursements that the ship liner company may owe to the shipping agent. There was no evidence establishing the existence of any usage in the industry in Malaysia that a lien is established whenever there is a balance of a general account in respect of shipping services rendered, including handling inward and outward containers and transshipments by shipping agents to owners of ship liners. CONTRACT
CONTRACT: Agreement - Settlement agreement - Agreement between plaintiff and ship liner company to transfer shipping containers to plaintiff as settlement of loan sum - Plaintiff claimed for surrender and delivery of containers from defendant as shipping agent holding containers of ship liner company - Whether prerequisites for transfer of ownership stipulated in settlement agreement satisfied - Whether plaintiff had locus standi to claim for containers - Whether plaintiff acquired legal ownership of containers in possession of defendant - Whether defendant had general lien over containers - Whether defendant entitled to claim for agency fees, disbursement and storage charges incurred CONTRACT: Agreement - Agency agreement - Agreement between ship liner company and shipping agent for latter to provide shipping services, including handling inward and outward containers and transshipments - Plaintiff claimed for surrender and delivery of containers from defendant as shipping agent holding containers of ship liner company - Whether plaintiff had locus standi to claim for containers - Whether plaintiff acquired legal ownership of containers in possession of defendant - Whether defendant had general lien over containers - Whether defendant entitled to claim for agency fees, disbursement and storage charges incurred
Ong Chee Kwan J
(i) A mere communication or response to a letter, which reiterates an earlier decision, does not constitute a new, reviewable decision; (ii) In the context of statutory licensing, only the licensee has the necessary locus standi to challenge a decision related to the cancellation or non-renewal of a license. Parties who are not the direct licensee, such as contractors or private third parties who hold an agreement with the licensee, do not have a public law right to challenge the licensing decision. Their rights are limited to their private contractual relationship with the licensee and do not extend to public law matters under the relevant statute. ADMINISTRATIVE LAW
ADMINISTRATIVE LAW: Judicial review - Application for - Challenge against decision of State Government and State Director of Forestry - Applicants sought to quash cancellation of logging approval and to compel renewal of licence - Applicants contractors and sub-contractors and not official licensee - Whether there was decision for review - Whether applicants had necessary locus standi to challenge decision - Whether rights governed by public law - National Forestry Act 1984, ss. 14, 16 & 22
Amarjeet Singh Serjit Singh J
ARTICLESLNS Article(s)
LEGISLATION HIGHLIGHTSPrincipal Acts
Amending Acts
PU(A)
PU(B)
Legislation Alert Updated
Revoked
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