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Issue #44/2024
31 October 2024
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CASE SPOTLIGHTS
NICHOLAS MAZIVANAN v. PP [2024] 9 CLJ 736 Section 254 of the Criminal Procedure Code ('CPC') bestows upon the Public Prosecutor, under art. 145 of the Federal Constitution, the prosecutorial power to discontinue a criminal prosecution at any stage of the trial. However, the court must then decide whether to discharge or acquit the accused, as outlined in s. 254(3) of the CPC. While the Attorney General's ('AG') decision to stop the prosecution influences the trial's course, the court retains the authority to make the final judicial order. The AG's role does not extend to influencing the court's decision on discharging or acquitting the accused, thus fortifying the court's judicial independence. CONSTITUTIONAL LAW: Public Prosecutor - Powers - Prosecutorial power - Whether prosecutorial discretion of Public Prosecutor absolute - Federal Constitution, art. 145 - Criminal Procedure Code, s. 254 CRIMINAL PROCEDURE: Appeal - Appeal against decision of Magistrates' Court - Accused charged under s. 354 of Penal Code - Offence of outraging modesty - Magistrate fixed few mention dates for prosecution to wrap up investigation and proceed with trial - Prosecution requested for multiple adjournments and postponements on reason of incomplete investigation - Prosecution did not proceed with trial even though accused had been charged for two years - Magistrate ordered discharge not amounting to acquittal - Whether proper order - Whether prosecution's reason of awaiting further investigation good ground for Magistrate to order discharge not amounting to acquittal - Whether accused ought to be discharged and acquitted - Whether appeal against Magistrate's decision premature - Whether order of discharge amounting to acquittal could be given prior to commencement of trial - Criminal Procedure Code, ss. 173, 254 & 307(1) JUDICIAL QUOTES“The task faced by the court in conducting the trial in this case, and in making a determination on the merits, was hampered not only by the manner in which the defence had conducted its case – which had led to the issuance of unless orders – but also by the quality of the submissions advanced, which in my respectful view fell far below the standards expected of counsel. The court struggled to understand the precise nature of many of the arguments advanced by the plaintiffs because the submissions suffered from a chronic lack of organisation, with contentions of breach peppered liberally throughout the written submissions. It was left to the court to impose order and rigour to the points raised in order to properly analyse the contentions of breach. Worse, the manner in which counsel for the defendants presented the rebuttal submissions left the court guessing as to the true nature of the counter-arguments being advanced.” - Per Azizul Azmi Adnan J in A Minor (A Minor Suing Through His Mother And Litigation Representative, CCY) & Ors v. Pengarah Hospital Tuanku Ja'afar, Seremban & Ors [2024] 10 CLJ 22 LATEST CASESLegal Network Series
CLJ 2024 Volume 9 (Part 4) The concept of duty of care is undoubtedly part and parcel of the law of tort of negligence. Pursuant to s. 101 of the Evidence Act 1950, the party who pursues a counterclaim for breach of duty of care, bear the legal burden of proof that its counterclaim is sustainable under the applicable law. It is incumbent upon the court to apply the proper applicable law of tort, so as not to commit a fundamental and material error of law warranting appellate intervention. TORT
TORT: Negligence - Duty of care - Breach - Allegation of - Applicable law of tort of negligence - Whether party who pursued counterclaim for breach of duty of care bear legal burden of proof that its counterclaim was sustainable under applicable law - Double actionability rule - Whether satisfied - Whether financial institution estopped from insisting on strict application of proper applicable law in determining counterclaim TORT: Negligence - Duty of care - Breach - Allegation of - Whether financial institution breached duty of care while exercising power of sale of properties secured pursuant to loan facilities - Whether financial institution has duty of care in law to ensure best possible price obtained whilst disposing land - Whether duty of care negatived by contractual provisions entered into by parties in connection with loan - Whether party who pursued counterclaim for breach of duty of care bear legal burden of proof that its counterclaim was sustainable under applicable law - Double actionability rule - Whether satisfied - Whether financial institution estopped from insisting on strict application of proper applicable law in determining counterclaim
Hanipah Farikullah JCA
Where proceedings in court are indeed contemplated in relation to the administration of trust, s. 9 of the Government Proceedings Act 1956 mandates that a plaintiff who is moving the court must first obtain the written consent of the Attorney General ('AG') to allow scrutiny by the AG to check against abuse and wastage of funds and other resources as public, religious, social or charitable trusts are, by their very nature and intent, set up and intended for a larger community and purpose; serving an entirely different set of beneficiaries identified by some common cause or interest. No exception appears to be made to exclude a trustee from obtaining such written consent. CIVIL PROCEDURE | TRUSTS
CIVIL PROCEDURE: Striking out - Application for - Trustee of trust land sought directions from court in forms of injunctions and declaratory reliefs for administration of trust - Whether there was breach of express or constructive trust for public, religious, social or charitable purposes - Whether trustee's claims fell within ambit of s. 9 of Government Proceedings Act 1956 - Whether trustee must first obtain written consent of Attorney General - Whether trustee had locus standi to commence proceedings - Whether trustee's claims premature - Rules of Court 2012, O. 18 r. 19 CIVIL PROCEDURE: Action - Commencement - Charitable trusts - Trustee of trust land sought directions from court in forms of injunctions and declaratory reliefs for administration of trust - Whether there was breach of express or constructive trust for public, religious, social or charitable purposes - Whether trustee's claims fell within ambit of s. 9 of Government Proceedings Act 1956 - Whether trustee must first obtain written consent of Attorney General - Whether trustee had locus standi to commence proceedings - Whether trustee's claims premature TRUSTS: Trustees - Charitable trusts - Trustee of trust land sought directions from courts in forms of injunctions and declaratory reliefs for administration of trust - Whether there was breach of express or constructive trust for public, religious, social or charitable purposes - Whether trustee's claims fell within ambit of s. 9 of Government Proceedings Act 1956 - Whether trustee must first obtain written consent of Attorney General - Whether trustee had locus standi to commence proceedings - Whether trustee's claims premature
Anand Ponnudurai J
(i) A Government official who is guilty of a constitutional tort shall not be entitled to the immunity against personal liability housed in s. 33(4) of the Government Proceedings Act 1956. Such immunity is only available to a personal individual who acted in good faith or purported to act in good faith; (ii) The court may order successful claimants in a case premised on constitutional tort, to first secure satisfaction of the judgment debt in whole or in part from the primary tortfeasor before seeking to secure satisfaction of the balance judgment debt in whole or in part from the other judgment debtors; (iii) It would offend the reasonable man's sense of justice if he has to contribute towards the satisfaction of the judgment obtained against a Government official, ie, a police officer, who had broken the law by beating a member of the public whom he was to protect and who later died due to being denied medical treatment. TORT | ADMINISTRATIVE LAW | CONSTITUTIONAL LAW | DAMAGES | CIVIL PROCEDURE
TORT: Damages - Claim - Death of detainee in police custody - Detainee arrested by police and beaten up during detention - Detainee brought to Magistrate's Court for remand - Magistrate dismissed remand application and directed that detainee be brought to hospital for medical treatment - Police did not bring detainee to hospital - Detainee re-arrested and continued to be detained without given medical treatment - Detainee died in custody - Members of police force found liable for negligence, assault and battery, breach of statutory duties and false imprisonment - Assessment of damages ADMINISTRATIVE LAW: Public officer - Immunity - Constitutional tort - Death of detainee in police custody - Members of police force found liable for negligence, assault and battery, breach of statutory duties and false imprisonment - Primary tortfeasor beat detainee up and denied him medical attention - Whether primary tortfeasor personally liable - Whether immunised from having to individually make payment - Whether public officer acting or purporting to act in good faith - Government Proceedings Act 1956, ss. 3 & 5 CONSTITUTIONAL LAW: Fundamental liberties - Right to life - Constitutional tort - Death of detainee in police custody - Federal Constitution, art. 5 DAMAGES: Assessment - Special, general, exemplary and aggravated damages - Detainee arrested by police and beaten up during detention - Detainee brought to Magistrates' Court for remand - Magistrate dismissed remand application and directed that detainee be brought to hospital for medical treatment - Police did not bring detainee to hospital - Detainee re-arrested and continued to be detained without given medical treatment - Detainee died in custody - Members of police force found liable for negligence, assault and battery, breach of statutory duties and false imprisonment - Amount of damages ought to be awarded CIVIL PROCEDURE: Judgments and orders - Judgment debt - Satisfaction - Death of detainee in police custody - Members of police force found liable for negligence, assault and battery, breach of statutory duties and false imprisonment - Primary tortfeasor deprived detainee of life by beating him up and denying him prompt medical attention despite Magistrate's order - Satisfaction of judgment in whole or in part by primary tortfeasor before satisfaction of balance judgment debt is secured in whole or in part from other judgment debtors Su Tiang Joo J
Spousal maintenance does not guarantee the continuity of the exact standard of living for a spouse post-separation or divorce. Financial arrangements, assets division, and spousal support may vary widely, resulting in different outcomes in different cases. While the legal system strives to achieve fairness, it could not ensure identical outcomes for every couple divorcing or separating due to the multifaceted nature of individual circumstances. The court's primary responsibility is to ensure that there is no drastic change in the living conditions of the spouse receiving maintenance, particularly if the marriage lasted for a significant duration. Even though the objective is to prevent a significant decline in the spouse's standard of living, the expectation of replicating the exact marital standard is both unrealistic and unsupported by law. FAMILY LAW
FAMILY LAW: Maintenance - Spousal support and maintenance - Petitioner husband filed divorce petition while respondent wife filed cross-petition - Application by wife for ancillary relief for payments - Whether all expenses claimed for necessary - Whether substantiated - Whether husband's refusal to provide any spousal support justified - Reasonable and appropriate sum of maintenance payable by husband to wife - Factors, considerations and objectives considered FAMILY LAW: Maintenance - Spousal support and maintenance - Petitioner husband filed divorce petition while respondent wife filed cross-petition - Application by wife for ancillary relief for payments - Wife sought order for husband to make full disclosure of all particulars, documents, assets and income and to produce relevant documents - Whether essentially request for discovery of documents - Whether permissible under application for ancillary relief - Divorce and Matrimonial Proceedings Rules 1980, r. 2
Evrol Mariette Peters J
A litigant is entitled to have a prior judgment set aside if it can be shown that the said judgment has been obtained by fraud. There is no necessity to show that the fresh evidence relied upon could not have been obtained without reasonable diligence. When a judgment or order is obtained by fraud, or where further evidence which could not possibly have been adduced at the original hearing is forthcoming, a fresh collateral action will lie to impeach the original judgment. The court has the jurisdiction to set aside a judgment obtained by fraud in a collateral action brought for that purpose. The doctrine of res judicata is not applicable in a separate and original action to impeach and set aside an earlier judgment which has been obtained by deception or under fraudulent circumstances practiced upon the court. Once fraud is proven, it vitiates judgments, contracts and all transactions. CIVIL PROCEDURE | EVIDENCE
CIVIL PROCEDURE: Judgments and orders - Impeachment - Judgment obtained by way of fraud - Court fraudulently misled into granting judgment - Consequence of judgment revoked letters of administration granted to rightful beneficiaries of estate - Discovery of fraudulent materials that were not available at time of trial - Whether due to lack of reasonable diligence - Whether res judicata or estoppel apply in action to impeach judgment for fraud - Whether evidence had determining effect on outcome of impugned judgment - Evidence Act 1950, s. 44 EVIDENCE: Fresh or further evidence - Impeachment - Judgment obtained by way of fraud - Court fraudulently misled into granting judgment - Consequence of judgment revoked letters of administration granted to rightful beneficiaries of estate - Discovery of fraudulent materials that were not available at time of trial - Whether due to lack of reasonable diligence - Whether res judicata or estoppel apply in action to impeach judgment for fraud - Whether evidence had determining effect on outcome of impugned judgment - Whether there was necessity to show that fresh evidence relied upon could not have been obtained without reasonable diligence - Evidence Act 1950, s. 44
Hayatul Akmal Abdul Aziz J
ARTICLESLNS Article(s)
LEGISLATION HIGHLIGHTSPrincipal Acts
Amending Acts
PU(A)
PU(B)
Legislation Alert Updated
Revoked
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