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Issue #43/2026
22 October 2026
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CASE SPOTLIGHTS
KUHENDRAN RAJAN v. AMERICAN EXPRESS (MALAYSIA) SDN BHD & ORS [2026] 9 CLJ 435 (i) Where counsel affirms an affidavit deposing to direct personal knowledge of contested, substantive events, particularly where counsel's personal observation forms the best evidence of those facts, that counsel ceases to function merely as an advocate and becomes a primary factual witness. Under r. 28(a) of the Legal Profession (Practice and Etiquette) Rules 1978, counsel shall not appear if there is a real likelihood that their evidence will be required on a material and disputed question of fact; (ii) Disqualification of an advocate under r. 28(a) extends to their entire firm where the conflict is structural and uncontainable. Where the disqualified counsel is the principal whose personal involvement and narrative permeate the matter, any associate or other advocate within the same firm acts under his/her direction and shares access to that contested narrative, rendering the entire firm unable to maintain the requisite independence required for representation. LEGAL PROFESSION: Counsel - Disqualification - Counsel affirmed affidavit claiming direct personal knowledge of disputed substantive facts - Whether counsel turned into primary material witness - Whether there was real likelihood that counsel's evidence would be required - Whether continued representation compatible with rule and integrity of court proceedings - Whether disqualification extended to entire law firm - Whether firm disqualified from acting for client - Legal Profession (Practice and Etiquette) Rules 1978, r. 28(a) JUDICIAL QUOTES“While the word “suit” would, without difficulty, mean a civil proceeding in court, the phrase “from other legal process” (in para 1 of First Schedule to International Organisations (Privileges and Immunities) Act 1992) is ambiguous requiring interpretation. The case of One Amerin settled the interpretation of this phrase. It was held, following the decision in Sundra Rajoo that the words are to be construed by considering the conventional international law purpose behind the immunity, which is to safeguard the independence of international organisations in the performance of their functions. Incidentally, both One Amerin and Sundra Rajoo concern the same international organisation, namely, the Asian International Arbitration Centre or AIAC which had interpreted para. 1 of the First Schedule. In construing the phrase “from other legal process” in a manner which accords with the Malaysia's international law obligations, criminal proceedings (Sundra Rajoo) and judicial review proceedings (One Amerin) were interpreted to fall within the scope of the words. It follows, a fortiori, that the words must also include the legal process of the Industrial Court, whose awards, carry the same force as a court of law. This interpretation is in line with Malaysia's international law obligations on privileges and immunities in respect of international organisations.” – Per Amarjeet Singh Serjit Singh JCA in Alliance For Financial Inclusion (AFI) v. Nazira Nasir [2026] 9 CLJ 837 LATEST CASESLegal Network Series
CLJ 2026 Volume 9 (Part 2) Notes of evidence from a separate civil proceeding cannot be used to strike out or determine criminal charges unless the threshold conditions and all three provisos of s. 33 of the Evidence Act 1950 are strictly satisfied: (i) it must first be proven that the witness is dead, untraceable, incapable of giving evidence, or being kept out of the way, or that securing their presence would cause unreasonable delay or expense; (ii) the prior proceeding must have been between the same parties or their representatives in interest; (iii) the adverse party in the prior proceeding must have had the right and opportunity to cross-examine the witness in the prior proceeding; and (iv) the questions in issue in the subsequent proceeding must be substantially the same as those in the first. EVIDENCE | CRIMINAL PROCEDURE
EVIDENCE: Admissibility - Notes of evidence - High Court struck out criminal charges based exclusively on notes of evidence given by investigating officer in separate civil suit - Whether notes of evidence admissible - Whether threshold conditions and provisos under s. 33 of Evidence Act 1950 satisfied - Whether witness dead, untraceable or incapable of giving evidence - Whether proceedings between same parties - Whether adverse party had opportunity to cross-examine witness - Whether issues identical - Evidence Act 1950, s. 33(a), (b) & (c) CRIMINAL PROCEDURE: Charges - Striking out - Application to strike out criminal charges at Sessions Court - Allegations of unfair, tainted and selective investigation amounting to abuse of court process - High Court allowed application based on evidence from separate civil suit - Whether High Court erred in setting aside all criminal charges - Whether notes of proceedings in civil trial barred from admission
Collin Lawrence Sequerah JCA
(i) A developer's written undertaking to repair damages to an adjoining property and pay temporary rental expenses constitutes an admission of liability, establishing that its earthworks and piling activities directly caused the structural damage; (ii) A Local Authority owes a duty of care to neighbouring property owners when approving and supervising high-risk development on elevated ground. Section 95(2) of the Street, Drainage and Building Act 1974 does not confer immunity where the authority fails to enforce compliance conditions or take reasonable steps to prevent foreseeable harm; (iii) Section 2(a) of the Public Authorities Protection Act 1960 does not bar claims against a public authority where the failure to supervise or abate a nuisance constitutes an ongoing breach rather than a single completed act; (iv) Compensation for repair and reinstatement works must be strictly limited to restoring the property to its pre-damage condition, excluding any costs attributable to structural upgrades, extensions, or betterments. TORT | LOCAL GOVERNMENT | DAMAGES
TORT: Negligence - Nuisance - Damage to neighbouring residential property caused by excavation and piling works for commercial project - Landslide and structural cracks rendering house uninhabitable - Claim by property owners against developer and Local Authority - Whether chain of causation established - Whether developer's written undertaking to repair and pay rental expenses amounted to admission of liability - Whether lapse of time in securing expert report constituted novus actus interveniens - Whether Local Authority owed duty of care to claimants - Whether Local Authority protected by statutory immunity under s. 95(2) Street, Drainage and Building Act 1974 LOCAL GOVERNMENT: Local Authority - Continuing wrong - Damage to neighbouring residential property caused by excavation and piling works for commercial project - Landslide and structural cracks rendering house uninhabitable - Claim by property owners against Local Authority for failure to abate nuisance and enforce safety conditions - Action filed more than 36 months after initial structural cracks appeared - Whether claimants barred under s. 2(a) of Public Authorities Protection Act 1960 DAMAGES: Quantum and assessment - Claim for general, special, aggravated and exemplary damages - Claim by property owners against developer and Local Authority - Damage to neighbouring residential property caused by excavation and piling works for commercial project - Landslide and structural cracks rendering house uninhabitable - Cost of repair and structural reinstatement - Whether claimants entitled to damages - Whether developer and Local Authority jointly and severally liable Gan Techiong J
(i) The mandatory forfeiture regime under s. 52(1) of the Fisheries Act 1985 requires strict proof of all cumulative prerequisites; therefore, a conviction for operating without a license cannot logically satisfy a condition based on breaching an existing license's terms; (ii) A trial court acts ultra vires by applying a mandatory forfeiture regime to unlisted offenses that are governed by separate, discretionary powers. An appellate or revising court cannot retrospectively substitute its own discretion under an alternative provision, like s. 34, to cure a fatal statutory defect in a mandatory order; (iii) Section 173(b) of the Criminal Procedure Code imposes a non-delegable judicial obligation on the trial judge to ensure the accused fully understands the complete penal spectrum before a guilty plea is recorded. This safeguard cannot be outsourced to the prosecution or cured post-conviction; (iv) Summarily cancelling a commercial fishing license belonging to an uncharged third party without notice, or ordering such cancellation for an offence predicated on the complete absence of a license, flagrantly violates the rules of natural justice and vitiates the order. CRIMINAL LAW | CRIMINAL PROCEDURE | STATUTORY INTERPRETATION
CRIMINAL LAW: Offences - Fisheries activities - Operating local fishing vessel without valid license - Trawl net fishing without license - Using vessel license issued to another person - Forfeiture of fishing vessel - Cancellation of fishing license - Whether criminal conviction and its consequential penalties strictly confined to four corners of actual charges framed and pleaded - Legality, propriety, and correctness of consequential sentencing orders - Whether orders of forfeiture and cancellation of fishing license ought to be set aside - Fisheries Act 1985, ss. 8(a), 11(3)(a), 14(4)(b), 33(1) & 52(1) CRIMINAL PROCEDURE: Plea of guilty - Offences - Fisheries activities - Conviction carrying severe administrative penal consequences - Statutory cancellation of commercial fishing license under s. 33(1) of Fisheries Act 1985 - Judicial obligation to explicitly inform and satisfy itself that accused fully comprehended complete spectrum of penalties before recording plea - Whether there was failure to do so - Whether amounted to fatal procedural irregularity vitiating consequential order - Whether there was fatal procedural breach of s. 173(b) of Criminal Procedure Code - Fisheries Act 1985, ss. 33(1) & 52(1) CRIMINAL PROCEDURE: Revision - Revisionary jurisdiction of High Court - Scope and powers - Examination of subordinate court records to satisfy correctness, legality, or propriety of orders passed - Sessions Court ordered mandatory forfeiture under s. 52(1) of Fisheries Act 1985 - Attempt by prosecution to retrospectively invoke discretionary forfeiture under s. 34 to cure fatal statutory defect in s. 52(1) - Whether permissible - Whether revision proceeding could be utilised as backdoor method to remedy trial oversights or procedural omissions at first instance - Criminal Procedure Code, s. 323 - Courts of Judicature Act 1964, s. 31 STATUTORY INTERPRETATION: Penal statutes - Strict construction - Fisheries Act 1985, s. 52(1) - Mandatory forfeiture power - Interpretation of conjunctive word 'and' linking paras. (a) and (b) - Literal reading - Requirement for prosecution to simultaneously prove offence under para. (a) and contravention of a license condition under para. (b) - Accused convicted under ss. 8(a) and 11(3)(a) for operating vessel and trawl net completely without valid license - Whether possible to breach conditions of non-existent license - Purposive approach under s. 17A of Interpretation Acts 1948 and 1967 - Whether applicable - Whether threshold fulfilled when statutory language grammatically unequivocal and free from ambiguity Johan Lee Kien How J
Pursuant to s. 3 of the Courts of Judicature Act 1964, the High Court of Malaya is a single unified court across all Malayan States; its branches possess coordinate jurisdiction. Under O. 55A r. 1(1) of the Rules of Court 2012, an appeal against the Advocates and Solicitors Disciplinary Board ('DB') is a matter of procedural convenience, governed by geographical nexus, supervisory link, and an absence of prejudice; it is not limited strictly to where the DB sits or maintains its registered office. A respondent who files substantive pleadings and arguments without seeking a formal transfer submits to the branch's jurisdiction and waives the right to object to the venue. LEGAL PROFESSION | CIVIL PROCEDURE
LEGAL PROFESSION: Disciplinary proceedings - Misconduct - Breach of fiduciary duties - Solicitor acting as conveyancing solicitor and stakeholder holding original title documents and instruments of transfer - Solicitor acquired subject properties for personal gain by exploiting temporary default judgment during pending setting aside application - Inconsistency between consideration in sale and purchase agreement and Form 14A instrument of transfer - Whether amounted to gross breach of fiduciary duty and professional misconduct - Whether acts fell within statutory prohibition under s. 112(1)(a) of Legal Profession Act 1976 CIVIL PROCEDURE: High Court - Jurisdiction - Venue - Appeal against decision of Advocates and Solicitors Disciplinary Board ('DB') - Appeal filed at Kuala Terengganu High Court while registered office of DB situated in Kuala Lumpur - Principles of geographical convenience, supervisory nexus, and absence of prejudice - Whether High Court of Malaya single court with coordinate jurisdiction across all branches - Whether filing substantive pleadings without apply for transfer constitutes waiver of objection to venue - Courts of Judicature Act 1964, s. 3 - Rules of Court 2012, O. 55A r. 1(1) CIVIL PROCEDURE: Locus standi - Capacity - Estate administrator - Appeal against dismissal of disciplinary complaint by Advocates and Solicitors Disciplinary Board - Death of original party affected by solicitor's misconduct - Whether administrator holding general letter of administration has capacity to pursue appeal on behalf of estate - Whether 'party aggrieved' - Whether necessary for administrator to have been original complainant in disciplinary proceedings CIVIL PROCEDURE: Appeal - Originating summons - Failure to specifically pray for consequential orders or detail grounds of appeal in body of originating summons - Facts and grounds comprehensively set out in supporting affidavit - Whether procedural technicalities could defeat substantive justice - Rules of Court 2012, O. 41 r. 9(2) & O. 55A
Yusrin Faidz Yusoff J
An administrative error in registering a case under an incorrect code is a curable irregularity, not a nullity, and cannot justify terminating a suit. Because case codes are mere administrative tools that do not affect jurisdiction or the cause of action, a Registrar cannot strike out a valid claim at case management without a formal application, warning, or an opportunity for the plaintiff to amend. Summarily dismissing an action over an accidental filing error - especially when it risks extinguishing substantive claims due to limitation periods - violates elementary fairness and inverts the overriding objective of O. 1A and O. 2 of the Rules of Court 2012, which mandate prioritising substantial justice over technicalities. Therefore, the proper remedy for an innocent coding error is administrative rectification at the registry level, ensuring machinery rules facilitate the disposal of cases rather than defeating them. CIVIL PROCEDURE
CIVIL PROCEDURE: Action - Striking out - Suit registered under wrong case code - Senior Assistant Registrar struck out action during first case management - Whether incorrect case code rendered proceedings nullity or amounted to mere irregularity - Whether defect in constitution of action - Whether miscarriage of justice flowed from miscoding - Whether miscoding accidental or administrative slip - Whether proper remedy administrative rectification - Whether striking out action justified - Rules of Court 2012, O. 2 r. 1 & O. 56 r. 1
Raja Segaran S Krishnan JC
Compliance with the statutory requirements under ss. 8, 9, and 10 of the Small Estates (Distribution) Act 1955 is strictly mandatory. Where a distribution proceeding is plagued by multiple and interconnected statutory breaches, including the deliberate omission of lawful beneficiaries, non-service of notice, non-disclosure of material movable assets, and lack of representation for minors, the cumulative effect of these irregularities strikes at the root of the statutory process, amounting to substantial injustice that renders the resulting distribution order unsafe and liable to be set aside for a fresh inquiry before a different Estate Distribution Officer. SUCCESSION
SUCCESSION: Distribution of estates - Small estates - Distribution order - Setting aside - Administrative and statutory non-compliance - Omission of primary heirs from petition, non-service of notice of hearing, non-disclosure of material estate assets and absence of appointed guardian for minor beneficiaries - Whether statutory provisions under ss. 8, 9, 10, 12, 13, and 17 of Small Estates (Distribution) Act 1955 mandatory - Whether cumulative procedural irregularities occasioned substantial injustice - Whether distribution order valid
Nixon Kennedy Kumbong JC
A power of attorney granted for valuable consideration to a substitute trustee is a power coupled with an interest that remains valid and irrevocable notwithstanding the deaths of the donors under ss. 6 and 7 of the Powers of Attorney Act 1949. Because trust assets expressly settled under a trust deed are alienated from the settlors' personal ownership during their lifetimes, they form no part of the deceased settlors' personal estates and fall outside the scope of testamentary or intestate devolution. Consequently, a financial institution has no legal basis to demand grants of representation as a prerequisite for trust administration, nor can it refuse to honour the irrevocable power of attorney based on joint account dynamics where the surviving holder previously executed the instrument. Such an irrevocable power of attorney operates as the subsisting written permission of the bank's customers under the Financial Services Act 2013, meaning statutory banking secrecy provisions cannot be weaponised by third-party financial institutions to withhold account disclosure or block necessary trust management. TRUSTS
TRUSTS: Trustee - Substitute trustee - Trust company appointed as substitute trustee under trust deeds - Powers of attorney ('PAs') executed for trust administration - Death of settlors as triggering event for administration - Refusal by bank to release monies - Whether trust company ought to commence proceeding as representative action under O. 15 r. 12 of Rules of Court 2012 - Whether separate proceedings required for each trust deed and PAs - Whether PAs valid and irrevocable after death of donors - Whether trust company entitled to monies held in accounts - Whether bank entitled to insist on production of grants of representation before releasing monies - Whether bank entitled to rely on s. 133 of Financial Services Act 2013 to refuse disclosure of settlors' account information - Whether bank under duty to release trust assets - Powers of Attorney Act 1949, ss. 5, 6, 7, 8 TRUSTS: Trust property - Assets of deceased settlor - Monies in bank accounts expressly identified as trust assets under trust deeds - Separation of trust assets from deceased's estate - Whether trust property formed part of personal estate of deceased settlor - Whether trust assets devolved through probate or letters of administration - Role of substitute trustee distinguished from personal representative - Administration of estates - Requirement for grants of representation - Whether bank justified in demanding grants of representation before releasing trust funds to substitute trustee TRUSTS: Trustee - Substitute trustee - Trust company appointed as substitute trustee under trust deeds - Power of attorney (PA) granted to substitute trustee to enable administration of trusts - Death of donors - Whether PA remained valid and irrevocable after donors' deaths - Common law test - Whether satisfied - Meaning of 'purchaser' - Application of maxim noscitur a sociis - Whether trustee qualified as 'purchaser' - Disclosure of banking information - PA authorised substitute trustee to handle donors' banking affairs - Whether valid and irrevocable PA constituted 'written permission' from customer to disclose banking details - Whether bank entitled to rely on statutory banking secrecy to refuse disclosure to substitute trustee - Financial Services Act 2013, s. 133 - Powers of Attorney Act 1949, ss. 5, 6, 7, 8
Arziah Mohamed Apandi J
ARTICLESLNS Article(s)
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Amending Acts
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Legislation Alert Updated
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