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Issue #37/2025
11 September 2025
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CASE SPOTLIGHTS
WONG ZING HAW v. PP [2025] 8 CLJ 433 (i) A conviction for murder can be sustained even if the actual cause of death is not conclusively proven, particularly when the body is unrecovered or severely dismembered, provided there is sufficient evidence to infer the accused caused the death; (ii) The requisite mens rea for murder under s. 300(c) of the Penal Code can be inferred from the nature of the injuries inflicted, even if not explicitly stated by the trial judge. Motive is not a necessary element to prove murder when the conviction relies on overwhelming circumstantial evidence; (iii) Following the enactment of the Abolition of Mandatory Death Penalty Act 2023, a court, in exercising its discretion on sentencing for murder, may maintain the death sentence for exceptionally brutal and unremorseful crimes. CRIMINAL LAW: Offences - Murder - Appeal against conviction and sentence - Accused decapitated wife and cut her body parts into several pieces before disposing of them in river - Prosecution's case relied on circumstantial evidence - Accused found guilty, convicted as per charge and sentenced to death by hanging - Whether necessary to conclusively prove actual cause of death - Whether sufficient evidence to infer accused caused death - Whether mens rea established - Whether motive necessary - Penal Code, ss. 300 & 302 CRIMINAL PROCEDURE: Sentencing - Murder - Accused decapitated wife and cut her body parts into several pieces before disposing of them in river - Accused found guilty, convicted as per charge and sentenced to death by hanging - Abolition of mandatory death penalty - Discretion of court - Factors to consider - Whether death sentence ought to be maintained - Penal Code, ss. 300 & 302 - Abolition of Mandatory Death Penalty Act 2023 JUDICIAL QUOTES“The critical question is whether the discovery sought is necessary for the fair disposal of the matter or for saving costs, as required by O. 24 r. 8 ROC.” “The inclusion of requests for information about ATM cards, banking facilities, and other banking products is justified by the need to understand all potential means through which the loan funds might have been accessed or transferred. The court recognises that the purpose is to identify and determine where these monies have been subsequently transferred, withdrawn, or dissipated, thereby enabling further proceedings against appropriate individuals or entities that may be in receipt of these monies.” “In sophisticated financial fraud, funds are rarely moved through simple account-to-account transfer alone. The nature of modern banking means that funds can be accessed and transferred through multiple channels and instruments. The breadth and specificity of the requests in Schedule A for items such as cheque images, debit vouchers, GIRO payments, RENTAS, telegraphic transfers, and documents related to various banking products demonstrate an understanding that funds can be moved through diverse and sophisticated channels in modern financial transactions.” “This is not a fishing expedition but rather a carefully structured request for specific categories of documents that could reasonably be expected to assist in tracing the movement of the loan funds through various banking channels and instruments.” - Per Atan Mustaffa Yussof Ahmad J in Bank Pembangunan Malaysia Bhd v. Sidqi Ahmad Said Ahmad & Ors [2025] 8 CLJ 567 APPEAL UPDATES
LATEST CASESLegal Network Series
CLJ 2025 Volume 8 (Part 1) Matters raised in a defence may not be taken into account when the court is called upon to decide whether a statement of claim discloses a reasonable cause of action. The court cannot look beyond the four corners of a statement of claim; considering matters outside of it is a misdirection. CIVIL PROCEDURE
CIVIL PROCEDURE: Striking out - Appeal against - Statement of claim - Reasonable cause of action - Whether court ought to only look at statement of claim to determine reasonable cause of action - Whether permissible for court to look at issues raised in defence - Whether reasonable cause of action disclosed - Rules of Court 2012, O. 18 r. 19(1)(a)
S Nantha Balan JCA
Keterangan ikut keadaan, walaupun menunjukkan pengetahuan tentang jenayah atau percubaan untuk mengelirukan, adalah tidak mencukupi untuk membuktikan elemen 'menyebabkan bencana atau kecederaan tubuh' dalam pertuduhan pembunuhan bawah s. 302 Kanun Keseksaan. Ini berlaku jika keterangan penting, seperti kenyataan yang membawa pada penemuan mayat dan ekshibit, diterima masuk tanpa keterangan lisan yang betul dan pematuhan pada prasyarat s. 27 Akta Keterangan 1950. UNDANG-UNDANG JENAYAH | PROSEDUR JENAYAH | KETERANGAN
UNDANG-UNDANG JENAYAH: Kesalahan - Membunuh - Rayuan - Inti pati-inti pati kesalahan - Sama ada dipenuhi - Sama ada pihak pendakwaan berjaya membuktikan kes prima facie - Sama ada tertuduh-tertuduh patut dipanggil membela diri - Sama ada elemen 'menyebabkan bencana atau kecederaan tubuh' boleh dibuktikan melalui keterangan ikut keadaan - Kanun Keseksaan, s. 302 PROSEDUR JENAYAH: Rayuan - Rayuan terhadap sabitan dan hukuman - Kesalahan membunuh - Sama ada inti pati-inti pati kesalahan dipenuhi - Sama ada pihak pendakwaan berjaya membuktikan kes prima facie - Sama ada tertuduh-tertuduh patut dipanggil membela diri - Sama ada sabitan dan hukuman selamat - Kanun Keseksaan, s. 302 KETERANGAN: Keterangan ikut keadaan - Kesalahan membunuh - Sama ada inti pati-inti pati kesalahan dipenuhi - Sama ada elemen 'menyebabkan bencana atau kecederaan tubuh' boleh dibuktikan melalui keterangan ikut keadaan - Kanun Keseksaan, s. 302 - Akta Keterangan 1950, s. 27 Ahmad Zaidi Ibrahim HMR
A party is estopped by the doctrine of res judicata from relitigating issues and causes of action that have been finally determined by a court of competent jurisdiction, especially when they had the opportunity to raise those issues in prior proceedings but failed to do so. Filing a new suit to challenge such a final judgment constitutes an abuse of the court's process. CIVIL PROCEDURE
CIVIL PROCEDURE: Res judicata - Judgment - Party sought to re-litigate issues and causes of action - Causes and action had been determined by court of competent jurisdiction - Whether determination final and binding judgment - Whether party had opportunity to raise issues during pendency of earlier trial - Whether estopped from re-litigating suit under doctrine of res judicata - Whether suit abuse of court's process
S Nantha Balan JCA
When a plaintiff applies for summary judgment, demonstrating compliance with the procedural requirements of O. 14 of the Rules of Court 2012, the burden shifts to the defendant to show cause as to why judgment should not be entered. The defendant must raise genuine triable issues. Where the plaintiff has presented a clear case and the defendant's alleged defences lack substantiation or fail to raise a genuine question of fact or law requiring a full trial, summary judgment is appropriate. CIVIL PROCEDURE
CIVIL PROCEDURE: Summary judgment - Application for - Bank granted customer with banking facility - Customer defaulted in monthly payments - Bank claimed for outstanding sum and applied for summary judgment - Whether bank complied with procedural requirements of summary judgment application - Whether there were triable issues warranting full trial - Whether bank entitled to summary judgment - Rules of Court 2012, O. 14
Yusrin Faidz Yusoff JC
Whilst the court would generally uphold the exclusive jurisdiction clause, the same could be reversed if the party challenging the exclusive jurisdiction clause is able to show exceptional circumstances to warrant a refusal to give effect to such an agreement. The burden is on the party challenging the exclusive jurisdiction clause to show why they should not be bound to honour the part of the contract where they had agreed to jurisdiction. CIVIL PROCEDURE | CONTRACT
CIVIL PROCEDURE: Courts - Jurisdiction - Exclusive jurisdiction clause in memorandum of agreement - Provision for dispute to be submitted to International Chamber of Commerce London and London High Court to make final judgment - Whether clause to be strictly upheld - Whether could be departed if strong exceptional circumstances shown - Whether there were extenuating circumstances warranting refusal to honour agreed exclusive jurisdiction clause CONTRACT: Agreement - Construction of clauses - Exclusive jurisdiction clause in memorandum of agreement - Provision for dispute to be submitted to International Chamber of Commerce London and London High Court to make final judgment - Whether clause to be strictly upheld - Whether could be departed if strong exceptional circumstances shown - Whether there were extenuating circumstances warranting refusal to honour agreed exclusive jurisdiction clause
Mohd Radzi Abdul Hamid J
(i) A solicitor's duty to protect his/her client's interests transcends specific practice areas and extends to taking all reasonable steps to safeguard the client's rights in secured property, even if initially retained for litigation; (ii) All partners in a legal firm are jointly and severally liable for acts and omissions of the firm and its solicitors in the ordinary course of business; (iii) A cause of action for negligence and breach of contract against solicitors accrues when the client suffers a loss. Tort and contract actions are not mutually exclusive and can co-exist when claiming against solicitors for professional negligence and breach of contract. LEGAL PROFESSION
LEGAL PROFESSION: Duty of care - Duty to client - Bank retained solicitors/partners in law firm to represent it - Actions of solicitors resulted in losses to bank - Whether losses caused by bank's own breach - Whether there was breach of contract and/or professional duties by solicitors - Whether solicitors negligent in failing to protect bank's interest - Whether legal firm specifically sued in proceedings - Whether bank can maintain action under breach of contract and professional negligence together - Whether legal firm's duty of care towards bank limited to litigation matters only - Whether all firm's partners liable - Whether action time barred - Whether estopped by res judicata
Raja Ahmad Mohzanuddin Shah J
It is obligatory upon the court under the proviso to s. 74(2) of the Animals Act 1953 to give an opportunity for the owner of a conveyance used in the commission of an offence, if his name and whereabouts are known, to appear before the court and show cause as to why the order of forfeiture should not be made. A failure to give such an opportunity would cause the order of forfeiture of such conveyance to be set aside and the said conveyance returned to the registered owner. CRIMINAL PROCEDURE
CRIMINAL PROCEDURE: Forfeiture - Order of forfeiture - Whether Magistrate had right to order forfeiture of conveyance ie, motor lorry used in commission of offence punishable under s. 36(7) of Animals Act 1953 - Whether owner of conveyance must be given opportunity to be heard and to show cause why forfeiture order should not be made - Animals Act 1953, s. 74(2)
Mohd Rosli Yusoff JC
(i) When a contractual dispute is premised on the terms of a contract, the contract itself as a whole document must be considered including the factual matrix and background circumstances, business common sense, and commercial purposes. An objective approach must be taken to determine the parties' intentions; (ii) When a party seeks to challenge penalty calculations, they must provide timely objections and substantial evidence, not merely assert disagreement after penalties have been imposed. When evaluating penalty provisions, the court takes a practical approach to contractual interpretation, considering both the literal wording and the functional commercial context. CONTRACT
CONTRACT: Breach - Contractual dispute - Terms of agreement - Agreement between university and facilities management company for latter to provide workforce, consumable and all linen-related services to university medical centre - Whether there were specific terms regarding linen supply requirements - Whether company contractually obligated to supply new linens rather than reused linens - Claim for penalty payment demands - Whether penalty calculation method and amount valid - Whether there were wrongful deductions - Whether there was violation of contract
Arziah Mohamed Apandi JC
CLJ 2025 Volume 8 (Part 2) There is no conflict, ambiguity or confusion on the meaning and application of s. 46 of the Employees Provident Fund Act 1991 in respect of the proper party and the question of joint and several liability of directors who were/are directors during the period of default to pay outstanding Employees Provident Fund contributions. Even if a company is not sued or taken action against together with the directors, the joint and several liability under the said s. 46 is effective and capable to be enforced against one director only, in the absence of another director or the company itself. COMPANY LAW | PROVIDENT FUND | STATUTORY INTERPRETATION
COMPANY LAW: Directors - Personal liability - Whether directors of company jointly and severally liable for Employees Provident Fund contributions due and payable - Whether directors may be sued independent of company - Liability of directors, nature of - Employees Provident Fund Act 1991, ss. 46 PROVIDENT FUND: Arrears of contribution - Recovery of arrears of Employees Provident Fund ('EPF') contributions - Whether directors of company jointly and severally liable for EPF contributions due and payable - Whether directors may be sued independent of company - Employees Provident Fund Act 1991, ss. 46 PROVIDENT FUND: Liability of employer - Directors of company - Whether directors of company jointly and severally liable for Employees Provident Fund contributions due and payable - Whether directors may be sued independent of company - Liability of directors, nature of - Employees Provident Fund Act 1991, ss. 46 STATUTORY INTERPRETATION: Construction of statutes - Interpretation - Employees Provident Fund Act 1991, s. 46 - Whether barred Employees Provident Fund ('EPF') from naming director only in claim for EPF contributions due and payable - Whether directors of company jointly and severally liable for EPF contributions due and payable - Liability of directors, nature of Abang Iskandar PCA
(i) In a public interest litigation case concerning environmental conservation, non-governmental organisations (NGOs) and nature conservationists can be deemed to have the necessary locus standi to file for judicial review, provided they demonstrate a real and genuine interest in the subject matter; (ii) A statutory amendment that introduces a new procedural requirement does not apply retrospectively to a decision made before the amendment came into force, even if the notification of that decision is published after the amendment. The relevant date is the date the decision was made, not the date of its subsequent Gazette notification; (iii) The courts will not interfere with or question a policy decision of the State as it falls within the purview of the Executive's policy-making authority. The court's role is not to decide on the merits of such policy matters. ADMINISTRATIVE LAW
ADMINISTRATIVE LAW Judicial review - Appeal - Challenge against decision of State Executive Council - State Executive Council degazetted part of forest reserve - Whether applicants had necessary locus standi to mount up challenge against decision - Whether statutory amendment that introduces new procedural requirement applies retrospectively - Whether policy decision of State amenable to judicial review - Whether application for judicial review time-barred
Azizah Nawawi JCA
(i) A declaratory order merely declares rights and is not executable or enforceable. Therefore, a subsequent mandamus order cannot be issued to compel specific performance based solely on a declaratory order; (ii) Section 29(1)(b) of the Government Proceedings Act 1956 limits the remedies against the Government regarding the recovery of land to an order declaring entitlement to the land or its possession, but explicitly prevents an order for the recovery or delivery of the land itself. This section, however, does not preclude the assessment of adequate compensation for the land that cannot be recovered, especially when read in conjunction with arts. 13 and 162(6) of the Federal Constitution, which mandate fair compensation for acquired land; (iii) When compensation is to be assessed for land that the Government has taken possession of, the market value should be determined as at the date the Government took possession of the land, not the current market value. LAND LAW
LAND LAW: Land acquisition - Compensation - Land acquired by State Government for public purpose - Parties could not agree on compensation sum - Proper assessment as to adequate compensation for land acquired - Whether declarative order amenable to subsequent mandamus to compel Government of Malaysia ('Government') to transfer subject land back to landowner - Whether mandamus to compel Government to transfer land back to landowner precluded by s. 29(1)(b) of Government Proceedings Act 1956 ('GPA') - Whether s. 29(1)(b) of GPA should be read in tandem with art. 13 of Federal Constitution - Whether compensation should be market value as at date Government took possession of subject land - Whether should be based on current market value
Lee Swee Seng FCJ
(i) Parties to proceedings are bound by their pleadings. In that light, the particulars of matters forming the cause of action must be sufficiently pleaded to enable the other party to have sufficient notice of the case against them; (ii) An estate agent, having been instrumental to a transaction leading to a successful agreement entered between the principal and the party introduced by the agent, ought to be entitled to the commission agreed between the parties. AGENCY | CONTRACT
AGENCY: Agent - Estate agent - Claim for agreed commission - Tenancy agreement between tenant and principal arising from agreement between principal and agent - Whether terms, price and subject matter of agreement certain and unconditional - Whether agent effective cause of bringing parties together - Whether agent's license to practice valid - Whether breached license requirements - Whether agent entitled to commission - Valuers, Appraisers, Estate Agents and Property Managers Act 1981, s. 16 CONTRACT: Agency - Principal and agent - Claim for agreed commission - Tenancy agreement between tenant and principal arising from agreement between principal and agent - Certainty of contract - Whether terms, price and subject matter of agreement certain and unconditional - Whether tenant took up tenancy from principal's group of companies - Whether agent effective cause of bringing parties together - Whether agent entitled to commission
Su Tiang Joo J
(i) There should be no legal impediment for a party to depart from its pleadings, if after it referred to the evidence adduced at trial, it decided to reduce its claim at the end of the trial; and (ii) A joint management body or management corporation, considering that it had proprietary right over common property of a strata property, should be entitled to receive a portion of a compensation paid for a compulsory acquisition, proportionate to the area of the common property. LAND LAW
LAND LAW: Acquisition of land - Objection against compensation - Suit by joint management body ('JMB') against developer to dispute developer's entitlement towards whole of compensation sum awarded - Whether JMB entitled to portion of compensation sum which was proportionate to area comprising common property - Whether by reducing claim at end of trial, due to evidence adduced at trial, JMB had departed from its pleadings - Whether by failing to take steps to attend land inquiry, JMB was estopped from alleging developer was holding portion of compensation as constructive trustee - Whether part of land common property - Whether conduct of developer warranted award of exemplary damages
Alice Loke Yee Ching J
(i) A claim will be struck out, on the grounds of multiplicity of proceedings, if it bears considerable resemblance, both in substance and relief sought, to a previously initiated suit; even if the wording of the reliefs is not identical, provided the essential nature and objective are substantially the same; (ii) A claim is barred by the doctrine of issue estoppel if the plaintiffs have previously commenced legal proceedings mounting the same challenge. CIVIL PROCEDURE
CIVIL PROCEDURE: Striking out - Writ and statement of claim - Application for - Default in financing facility - Parties entered into settlement agreements - Defaulting parties commenced action against chief executive officer of bank - Suit in relation to settlement agreements - Whether claim disclosed reasonable cause of action - Whether lacked substance and constituted abuse of process - Whether ought to be struck out - Rules of Court 2012, O. 18 r. 19(1)(a), (b) & (d) CIVIL PROCEDURE: Proceedings - Multiplicity of proceedings - Default in financing facility - Parties entered into settlement agreements - Defaulting parties commenced action against chief executive officer of bank - Suit in relation to settlement agreements - Existence of similar suit - Whether there was multiplicity of proceedings
Yusrin Faidz Yusoff JC
With the ubiquitous nature of the internet and rapid technological developments, cross-border online commercial activities and transactions have become the norm. The question in this case is related to whether a party's presence in a foreign jurisdiction can be established where the party operates a domain address or website which leads to commercial dealings between the party and residents of that foreign jurisdiction. It is an established principle that the court of a foreign country would have jurisdiction over a party, that has enjoyed the benefits arising out of his presence in that jurisdiction, albeit, not physically. The party cannot evade responsibilities and obligations which follow from that presence and must be taken to be amenable to the process of the courts in that foreign jurisdiction. CIVIL PROCEDURE
CIVIL PROCEDURE: Judgments and orders - Enforcement of - Plaintiffs sought to enforce judgment obtained in United States of America ('US') court against Malaysian defendants - Defendants operated domain addresses and websites - Complaint against defendants for trademark infringement, false advertising and unfair competition in respect of plaintiffs' trademarks - Whether judgment of foreign court could be enforced in Malaysia - US not listed in First Schedule of Reciprocal Enforcement of Judgments Act 1958 - Whether Malaysian conflict of law rules applicable - Whether defendants carried on business in foreign jurisdiction - Whether established presence in US - Whether cause of action had real and substantial connection with US court - Whether US court acted ultra vires in granting damages - Whether statutory damages within range under US law - Whether damages contravened public policy - Whether penal in nature - Courts of Judicature Act 1964, s. 23(1)
Adlin Abdul Majid J
ARTICLESLNS Article(s)
LEGISLATION HIGHLIGHTSPrincipal Acts
Amending Acts
PU(A)
PU(B)
Legislation Alert Updated
Revoked
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