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CLJ Logo CLJ Bulletin, Issue 2014, Vol 1
03 January 2014

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New This Week

1. Case Of The Week

a) AKITEK TIMOR v. TAI KIAN CHEONG

2. Latest Cases

a) Legal Network Series

b) CLJ 2014 Volume 1 (Part 1)

3. Articles

a) Legal Network Series Article

4. Legislation Highlights

a) Principal Acts

b) Amending Acts

c) PU(A)

d) PU(B)


CASE OF THE WEEK

AKITEK TIMOR v. TAI KIAN CHEONG
FEDERAL COURT, PUTRAJAYA
ZULKEFLI MAKINUDIN CJ (MALAYA), ABDULL HAMID EMBONG FCJ, AHMAD MAAROF FCJ, ZALEHA ZAHARI FCJ, SULONG MATJERAIE FCJ
[CIVIL APPEALS NO: 02-1-01-2012(W) & W-02-42-2001]
14 NOVEMBER 2013

CIVIL PROCEDURE: Summary judgment - Order of - Summary judgment order for damages by Senior Assistant Registrar - Whether Court of Appeal erred in treating order of SAR as nullity - Whether SAR had jurisdiction to make order pursuant to O. 14 r. 3 Rules of the High Court 1980 - Whether decision of Court of Appeal set aside

CIVIL PROCEDURE: Appeal - Appeal to Federal Court - Court of Appeal questioned validity of Senior Assistant Registrar's order on its own motion - SAR's order had been dealt with by High Court Judge - Whether Court of Appeal right in treating order granted by SAR as nullity - Whether decision to dismiss appeal by Court of Appeal was correct

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LATEST CASES

Legal Network Series

[2013] 1 LNS 257

SANMUGAM PONMUGAM PONNAN v. HALIJAH ABBAS & ANOR

TORT: Defamation - Libel - Letter written by first defendant to Advocates & Solicitors Disciplinary Board - Whether words complained of were capable of being, and were defamatory of plaintiff - Whether words complained of were calculated to expose him to hatred, ridicule or contempt in the mind of a reasonable man or would tend to lower plaintiff in the estimation of right-thinking members of society generally - Whether the words in their natural and ordinary meaning imputed to plaintiff any dishonorable or discreditable conduct or motives or a lack of integrity on his part - Whether words referred to plaintiff - Whether words were published - Whether defence of qualified privilege applied - Whether any existence of malice on publication of complaint letter by first defendant

[2013] 1 LNS 258

LEE CHEE AIK & ANOR v. SIOW MOON YEOW

CONTRACT: Illegality - Contravention of law – 2nd plaintiff not a registered estate agent when he rendered estate agency services to defendant - Whether a probationary estate agent was allowed to undertake real estate agent practice under the Valuers, Appraisers and Estate Agents Act 1981 or do any of the acts which were expressly forbidden by s. 22C(1)(ba) of the Act - If no, whether the contract was void and unenforceable under s. 24 of the Contracts Act 1950 - Whether the consideration and/or object of the agreement between 2nd plaintiff and defendant was forbidden by law, or was of such a nature that, if permitted, would defeat any law - Whether plaintiffs' claim sustainable as it was prohibited by clear provisions of the Act

[2013] 1 LNS 271

PP v. RAJA VISVALINGAM

CRIMINAL PROCEDURE: Prosecution - Prosecution's case - Prima facie case - Whether prosecution succeeded in proving all necessary ingredients of the murder charge against accused - Whether accused should be called to enter his defence

CRIMINAL PROCEDURE: Accused - Evidence - Whether conduct of accused towards deceased prior to fatal stabbing was relevant and admissible under ss. 6, 7 and 8 of the Evidence Act 1950 - Whether court could infer that accused not only had requisite intention to kill deceased or to inflict fatal stab which would be sufficient in the ordinary course of nature to cause deceased's death, but that he had a pre-arranged plan to kill deceased - Whether direct evidence supported by circumstantial evidence pointed strongly and irresistibly to guilt of accused as person who had intentionally caused fatal stab wound to deceased

CRIMINAL PROCEDURE: Defence - Denial - Intoxication as a defence - Defendant claiming he was drunk and had fallen asleep - Whether s. 85(2)(b) of the Penal Code applied to facts of present case - Whether defence cast a doubt on prosecution case - Whether prosecution proved single count of murder against accused beyond reasonable doubt

EVIDENCE: Accomplice - Corroboration - Law relating to - Whether PW10, PW11, PW12, and PW13 were accomplices or accessories to murder of deceased by accused - Whether their testimonies required independent corroboration - Whether it was safe for the court to convict accused as per the charge based solely on their uncorroborated testimonies

[2013] 1 LNS 275

CONTINENTAL COURT SDN BHD v. FAN FONG HEE & ORS

CIVIL PROCEDURE: Declaration - Application for - Factors to be considered when exercising jurisdiction - Whether court should grant declaration sought - Whether 2nd SPA was a valid and subsisting agreement and capable of being specifically performed by plaintiff and 1st defendant - Plaintiff indolent and did not come to Court with clean hands - Whether equity should be invoked in favour of plaintiff – 3rd defendant had notice of plaintiff's equitable interest prior to him making the full payment of the balance auction price for the land - Whether 3rd defendant was a bona fide purchaser for value, whose interest in the land should be recognized by the court in preference over plaintiff's equitable interest

LAND LAW: Indefeasibility of title and interests - Registered charge - Whether 2nd defendant's interests under 2 legal charges were subject to plaintiff's "prior equitable interest" which allegedly arose from the 2nd Sale and Purchase agreement - Whether 2nd defendant's rights and interest in the land as registered chargee indefeasible and ranked in priority - Whether dealing between 1st defendant and plaintiff which was made with notice of the charge could defeat indefeasible interest of 2nd defendant as registered chargee and through it the successful purchaser, 3rd defendant - Whether plaintiff had overriding interest that may defeat Bank's rights under 2 legal charges - Whether plaintiff entitled to discharge of 2 legal charges and declaration or relief claimed - Whether only relief available to plaintiff was damages in lieu of specific performance from 1st defendant

LAND LAW: Charge - Order for sale - Effect of the court orders made under charge action - Whether plaintiff's present suit an attempt to set aside order for sale - Absence of fraud or allegation that orders made under charge action were null and void on ground of illegality or lack of jurisdiction - Whether plaintiff could mount a collateral attack on the validity of order for sale and/or sale of the land made under the charge action

[2013] 1 LNS 333

DSL DEVELOPMENT CORPORATION SDN BHD v. KAMPONG KITA SDN BHD

CONTRACT: Termination - Validity - Notice of termination - Whether termination in accordance with termination clause in agreement - Whether defendant had right to terminate Joint Venture Agreement - Whether if at all, defendant's remedy lay in damages - Whether letter of termination could be treated as notice of default - Whether notice under clause 25.1 must be clear in its intention and purport - Whether event of default must be identified and plaintiff given period of sixty days to remedy or take adequate steps to remedy default - Whether it was only upon failure to do so after expiration of sixty days, and not earlier, that right to terminate arose - Whether termination valid

CLJ 2014 Volume 1 (Part 1)

COURT

FEDERAL COURT

Hong Leong Bank Bhd v. M Muthiah & Anor And Another Appeal
Arifin Zakaria CJ, Raus Sharif PCA, Abdull Hamid Embong, Ahmad Maarop, Zaleha Zahari FCJJ
(Banking) [2014] 1 CLJ 1 [FC]

Petrodar Operating Co Ltd v. Nam Fatt Corporation Bhd & Anor
Raus Sharif PCA, Zulkefli Makinudin CJ (Malaya), Hashim Yusoff, Zainun Ali, Jeffrey Tan FCJJ
(Civil Procedure; Statutory Interpretation) [2014] 1 CLJ 18 [FC]

COURT OF APPEAL

Koo Wing Cheung & Anor v. PP
Abdul Malik Ishak, Azahar Mohamed, Balia Yusof Wahi JJCA
(Criminal Law; Criminal Procedure) [2014] 1 CLJ 46 [CA]

Noor Azman Abidin v. PP
Mohamed Apandi Ali, Linton Albert, Hamid Sultan Abu Backer JJCA
(Criminal Law; Criminal Procedure) [2014] 1 CLJ 58 [CA]

Shahrizal Abdul Ghani v. PP
Abu Samah Nordin, Azahar Mohamed, Mohd Zawawi Salleh JJCA
(Criminal Law; Evidence) [2014] 1 CLJ 70 [CA]

HIGH COURT

Hiew Vun Zin v. Au Kam Wah & Anor And Another Application
Ravinthran Paramaguru J
(Legal Profession; Election; Words And Phrases) [2014] 1 CLJ 90 [HC]

Komas Energy Sdn Bhd lwn. PP
Samsudin Hassan PK
(Undang-Undang Kelautan) [2014] 1 CLJ 97 [HC]

Linggiu Valley Orang Asli (Jakuns) Trust v. Virgin Properties Sdn Bhd & Ors
Gunalan Muniandy JC
(Civil Procedure) [2014] 1 CLJ 113 [HC]

Razali Mohamed Saad v. CIMB Bank Bhd
Nallini Pathmanathan J
(Contract; Damages; Tort) [2014] 1 CLJ 123 [HC]

SPECIAL REPORT

SESSION COURT

In Re Inquest Into The Death Of Lim Chin Aik, Deceased
Khairul Anuar Abd Halim SJ
(Criminal Procedure) [2014] 1 CLJ 136 [Sessions Ct]

SUBJECT INDEX

BANKING

Banks and banking business - Guarantees - Banking facilities - Borrower's default in repayment - Liability against guarantors - Notice of demand - Purpose of - Whether must state precise amount due and owing by guarantors - Guarantee agreement - Interpretation of - Whether guarantors deemed to be principal debtors - Certificate of indebtedness - Whether binding and sufficient proof of amount due - Whether liabilities of guarantors include interest arising from loan plus other charges - Whether guarantors liable for whole sum due and owing by borrower
Hong Leong Bank Bhd v. M Muthiah & Anor And Another Appeal
(Arifin Zakaria CJ, Raus Sharif PCA, Abdull Hamid Embong, Ahmad Maarop, Zaleha Zahari FCJJ) [2014] 1 CLJ 1 [FC]

CIVIL PROCEDURE

Contempt of court - Breach of court order - Whether defendants breached court order - Whether a trust could commence committal application - Whether court order ambiguous and certain - Whether plaintiff had locus standi to commence committal proceeding
Linggiu Valley Orang Asli (Jakuns) Trust v. Virgin Properties Sdn Bhd & Ors
(Gunalan Muniandy JC) [2014] 1 CLJ 113 [HC]

Injunction - Ad interim injunction - Setting aside - Balance of convenience, issue of - Whether should be canvassed at inter partes stage - Argument on balance of convenience - Whether could be split into subject matter of separate interlocutory application to set aside ad interim injunction - Whether splitting of argument inappropriate - Whether would result in multiplicity of proceedings and waste of time and costs
Petrodar Operating Co Ltd v. Nam Fatt Corporation Bhd & Anor
(Raus Sharif PCA, Zulkefli Makinudin CJ (Malaya), Hashim Yusoff, Zainun Ali, Jeffrey Tan FCJJ) [2014] 1 CLJ 18 [FC]

Jurisdiction - Forum conveniens - Contract - Foreign party - Performance bond - Performance bond called by foreign party - Writ action and applications for injunction - Whether Malaysian Court had jurisdiction to try action - Whether could have jurisdiction statutorily over foreign defendant - Whether jurisdiction implicit in power to grant leave for service out of jurisdiction - American Express Bank Ltd v. Mohamad Toufic Al-Ozeir & Anor and R Rama Chandran v. Industrial Court of Malaysia - Whether inconsistent with each other - Rules of High Court 1980, O. 11 r. 1 - Courts of Judicature Act 1964, s. 23
Petrodar Operating Co Ltd v. Nam Fatt Corporation Bhd & Anor
(Raus Sharif PCA, Zulkefli Makinudin CJ (Malaya), Hashim Yusoff, Zainun Ali, Jeffrey Tan FCJJ) [2014] 1 CLJ 18 [FC]

Jurisdiction - Forum conveniens - Contract - Foreign party - Performance bond - Performance bond called by foreign party - Writ action and applications for injunction - Whether Malaysian Court had jurisdiction to try action - Whether Malaysia forum conveniens - Clause in Agreement stipulating contract and performance bond governed by Law of Sudan - Effect - Whether could not simpliciter preclude Malaysian Court from exercising discretion whether to hear suit or not - Rules of High Court 1980, O. 11 r. 1 - Courts of Judicature Act 1964, s. 23
Petrodar Operating Co Ltd v. Nam Fatt Corporation Bhd & Anor
(Raus Sharif PCA, Zulkefli Makinudin CJ (Malaya), Hashim Yusoff, Zainun Ali, Jeffrey Tan FCJJ) [2014] 1 CLJ 18 [FC]

CONTRACT

Breach - Damages - Quantum of damages - Mental anguish suffered by plaintiff as defendant bank's customer - Failure of defendant bank to remit periodical payments correctly - Exclusion clause - Whether defendant bank liable for error
Razali Mohamed Saad v. CIMB Bank Bhd
(Nallini Pathmanathan J) [2014] 1 CLJ 123 [HC]

CRIMINAL LAW

Dangerous drugs - Possession - Appeal against conviction - Surveillance by police - Nothing incriminating found on accused persons nor bedroom they were arrested in - Drugs found in two separate places in house - Other persons had custody, control and access of house - Whether trial judge considered possibility that other persons could have placed drugs - Whether accused persons had knowledge of drugs - Whether presumption of possession rebutted - Whether conviction unsafe - Dangerous Drugs Act 1952, s. 12(2)
Koo Wing Cheung & Anor v. PP
(Abdul Malik Ishak, Azahar Mohamed, Balia Yusof Wahi JJCA) [2014] 1 CLJ 46 [CA]

Dangerous drugs - Trafficking - Chemist failed to testify - Chemist report prepared by science officer - Admissibility of chemist report - Whether s. 399(2)(c) of Criminal Procedure Code envisaged that chemist report must be prepared by government chemist - Whether class of persons to whom s. 399 of CPC applies is exhaustive - Whether report admissible without attendance of maker
Shahrizal Abdul Ghani v. PP
(Abu Samah Nordin, Azahar Mohamed, Mohd Zawawi Salleh JJCA) [2014] 1 CLJ 70 [CA]

Dangerous drugs - Trafficking - Whether appellant identified as actual trafficker - Whether had knowledge of dangerous drugs contained in bag - Whether presence of third person cast reasonable doubt in prosecution's case
Shahrizal Abdul Ghani v. PP
(Abu Samah Nordin, Azahar Mohamed, Mohd Zawawi Salleh JJCA) [2014] 1 CLJ 70 [CA]

Dangerous Drugs Act 1952 - Section 39B(1)(a) - Trafficking - Reduction of charge to one of possession - Conviction and sentence on amended charge - Appeal against - Defence of accused - Accused claimed to have no knowledge of drugs found in bag allegedly belonging to one "Adik" - Whether defence story inherently incredible - Trial judge's analysis of defence story - Whether there were elements of speculation compromising integrity of decision making process - Whether trial judge focused on the character of "Adik" - Whether "Adik" a fictitious character - Whether prosecution succeeded in proving case beyond reasonable doubt - Whether conviction unsafe
Noor Azman Abidin v. PP
(Mohamed Apandi Ali, Linton Albert, Hamid Sultan Abu Backer JJCA) [2014] 1 CLJ 58 [CA]

CRIMINAL PROCEDURE

Appeal - Appeal against conviction and sentence - Charge of trafficking, reduced to possession - Defence of accused - Accused claimed to have no knowledge of drugs found in bag allegedly belonging to one "Adik" - Whether defence story inherently incredible - Trial judge's analysis of defence story - Whether there were elements of speculation compromising integrity of decision making process - Whether trial judge focused on the character of "Adik" - Whether "Adik" a fictitious character - Whether prosecution succeeded in proving case beyond reasonable doubt - Whether conviction unsafe
Noor Azman Abidin v. PP
(Mohamed Apandi Ali, Linton Albert, Hamid Sultan Abu Backer JJCA) [2014] 1 CLJ 58 [CA]

Appeal - Dangerous Drugs, possession of - Surveillance by police - Nothing incriminating found on accused persons nor bedroom they were arrested in - Drugs found in two separate places in house - Whether accused persons had knowledge of drugs - Evidence that other persons had custody, control and access of house - Whether trial judge considered possibility that other persons could have placed drugs - Whether presumption of possession rebutted - Whether conviction unsafe - Dangerous Drugs Act 1952, ss. 39B(1)(a), 12(2)
Koo Wing Cheung & Anor v. PP
(Abdul Malik Ishak, Azahar Mohamed, Balia Yusof Wahi JJCA) [2014] 1 CLJ 46 [CA]

Sudden death - Inquest - Car and driver crushed into underground hole - Circumstantial evidence showed driver might have been crushed to death - Search and rescue called off without finding body of driver - Whether inquest on death could be conducted by Coroner - Proper verdict - Whether death by misadventure - Criminal Procedure Code, ss. 329, 337 - Evidence Act 1950, s. 108
In Re Inquest Into The Death Of Lim Chin Aik, Deceased
(Khairul Anuar Abd Halim SJ) [2014] 1 CLJ 136 [Sessions Ct]

DAMAGES

Quantum - General damages for loss and damage - Mental anguish - Quantum of damages to be awarded - Whether defendant bank could rely on exclusion clause to deny liability
Razali Mohamed Saad v. CIMB Bank Bhd
(Nallini Pathmanathan J) [2014] 1 CLJ 123 [HC]

ELECTION

Petition - Failure to leave two copies of petition with court - Whether there was breach of r. 9 of the Election Petition Rules 1954 - Whether breach could be addressed in High Court
Hiew Vun Zin v. Au Kam Wah & Anor And Another Application
(Ravinthran Paramaguru J) [2014] 1 CLJ 90 [HC]

EVIDENCE

Agent provocateur - Informer - Whether informer participated in negotiation - Whether informers became agent provocateurs - Whether lost protection under s. 40 of Dangerous Drugs Act 1952
Shahrizal Abdul Ghani v. PP
(Abu Samah Nordin, Azahar Mohamed, Mohd Zawawi Salleh JJCA) [2014] 1 CLJ 70 [CA]

Exhibit - Identity of exhibits - Dangerous drugs - Whether every link in chain of custody explained satisfactorily - Whether drug exhibit positively identified
Shahrizal Abdul Ghani v. PP
(Abu Samah Nordin, Azahar Mohamed, Mohd Zawawi Salleh JJCA) [2014] 1 CLJ 70 [CA]

Expert evidence - Chemist's report - Offence of trafficking in dangerous drugs - Chemist report prepared by science officer - Admissibility of chemist report - Whether s. 399(2)(c) of Criminal Procedure Code envisaged that chemist report must be prepared by government chemist - Whether class of persons to whom s. 399 of CPC applies is exhaustive - Whether report admissible without attendance of maker
Shahrizal Abdul Ghani v. PP
(Abu Samah Nordin, Azahar Mohamed, Mohd Zawawi Salleh JJCA) [2014] 1 CLJ 70 [CA]

Judicial notice - Legal Notification - Offence of trafficking in dangerous drugs - Chemist report prepared by science officer - Notification of Declaration under s. 399(2) of Criminal Procedure Code - Science officers recognised as class of persons to whom s. 399 of CPC applies - Whether fact needs to be proved - Whether chemist report admissible - Evidence Act 1950, ss. 56 & 57(1)(a)
Shahrizal Abdul Ghani v. PP
(Abu Samah Nordin, Azahar Mohamed, Mohd Zawawi Salleh JJCA) [2014] 1 CLJ 70 [CA]

LEGAL PROFESSION

Practice of law - Ad hoc admission of counsel - Application to admit two senior counsel from Peninsular Malaysia to appear in election petition in Sabah - Whether local applicant ought to be appointed - Whether s. 10(c) of Advocates Ordinance (Cap 2) (Sabah) envisaged one senior counsel and not two - Condition under s. 10(c) - Whether complied with
Hiew Vun Zin v. Au Kam Wah & Anor And Another Application
(Ravinthran Paramaguru J) [2014] 1 CLJ 90 [HC]

STATUTORY INTERPRETATION

Construction of statutes - Rules of High Court 1980 - Order 11 r. 1 - Extra-territorial jurisdiction of Malaysian Courts - Whether conferring Malaysian Courts with jurisdiction over foreign defendant - Whether standing independently on its own - Whether predicated upon s. 23 Courts of Judicature Act 1964
Petrodar Operating Co Ltd v. Nam Fatt Corporation Bhd & Anor
(Raus Sharif PCA, Zulkefli Makinudin CJ (Malaya), Hashim Yusoff, Zainun Ali, Jeffrey Tan FCJJ) [2014] 1 CLJ 18 [FC]

TORT

Negligence - Damages - Quantum of damages - Failure by defendant bank to remit periodical payments correctly - Whether defendant bank liable for error
Razali Mohamed Saad v. CIMB Bank Bhd
(Nallini Pathmanathan J) [2014] 1 CLJ 123 [HC]

WORDS AND PHRASES

"Persons" - Advocates Ordinance (Cap 2) (Sabah), s. 10(c) - Meaning of - Whether singular or plural - Interpretation and General Clauses Enactment 1963
Hiew Vun Zin v. Au Kam Wah & Anor And Another Application
(Ravinthran Paramaguru J) [2014] 1 CLJ 90 [HC]

INDEKS PERKARA

UNDANG-UNDANG KELAUTAN

Perkapalan saudagar - Kawalan perkapalan - Tanggungan terhadap dakwaan kesalahan berlabuh - Sama ada kesemua elemen kesalahan telah dibuktikan - Sama ada kegagalan mengemukakan ekshibit dan dokumen-dokumen penting menimbulkan kelompangan dalam kes responden - Sama ada aktiviti bunkering termasuk di bawah senarai s. 491(B)(1) Akta Perkapalan Saudagar 1952 - Sama ada bunkering tergolong di bawah `berlabuh tunggu' - Sama ada kesalahan dibuktikan
Komas Energy Sdn Bhd lwn. PP
(Samsudin Hassan PK) [2014] 1 CLJ 97 [HC]

Perkapalan saudagar - Milikan kapal - Tanggungan terhadap dakwaan kesalahan berlabuh di bawah s. 491B(1)(l) Ordinan Perkapalan Saudagar 1952 - Sama ada penyewa kapal bertanggungjawab ke atas aktiviti kapal dalam perairan Malaysia
Komas Energy Sdn Bhd lwn. PP
(Samsudin Hassan PK) [2014] 1 CLJ 97 [HC]

ARTICLE

Legal Network Series Article

LEGISLATION HIGHLIGHTS

Principal Acts

Number Title Date coming into force Repealing
ACT 759 Islamic Financial Services Act 2013 30 June 2013 [PU(B) 277/2013] - except para(s) 1 to 10 of Schedule 9 and para(s) 13 to 19 of Schedule 9 -Nil-
ACT 758 Financial Services Act 2013 30 June 2013 [PU(B) 276/2013] - except s 129 and Schedule 9 -Nil-
ACT 757 Strata Management Act 2013 Not Yet In Force -Nil-
ACT 756 Traditional And Complementary Medicine Act 2013 Not Yet In Force -Nil-
ACT 755 Finance Act 2013 See s 3 for the Income Tax Act; s 41 for the Stamp Act; s 47 for the Petroleum (Income Tax) Act and s 55 for the Real Property Gains Tax Act -Nil-

Amending Acts

Number Title Date coming into force Principal/Amending Act No
ACT A1458 Supply Act 2014 1 January 2014
ACT A1456 Legal Profession (Amendment) Act 2013 Not Yet In Force ACT 166
ACT A1455 Legal Profession (Amendment) Act 2012 (Amendment) Act 2013 Not Yet In Force ACT A1444
ACT A1454 Supplementary Supply (2013) Act 2013 2 November 2013
ACT A1453 Supplementary Supply (2012) Act 2013 7 September 2013

PU(A)

Number Title Date of Publication Date coming into force Principal/Amending Act No
PU(A) 380/2013 Customs Duties (Goods Of Asean Countries Origin) (Asean Harmonised Tariff Nomenclature And Asean Trade In Goods Agreement) (Amendment) Order 2013 30 December 2013 1 January 2014 PU(A) 277/2012
PU(A) 379/2013 Excise Duties (Exemption) Order 2013 30 December 2013 1 January 2014 ACT 176
PU(A) 377/2013 Sales Tax (Rates Of Tax No. 2) (Amendment) Order 2013 27 December 2013 1 January 2014 PU(A) 355/2012
PU(A) 376/2013 Sales Tax (Exemption) Order 2013 27 December 2013 1 January 2014 ACT 64
PU(A) 375/2013 Renewable Energy (Allocation From Electricity Tariffs) Order 2013 26 December 2013 1 January 2014 ACT 725

PU(B)

Number Title Date of Publication Date coming into force Principal/Amending Act No
PU(B) 493/2013 Declaration Of Alteration Of Port Limits For Pasir Gudang Port 31 December 2013 1 January 2014 ORD. 70/1952; LN 73/1953
PU(B) 492/2013 Notice Of Affirmative Final Determination Of An Anti-Dumping Duty Investigation With Regard To Imports Of Seven Wires Pre-Stressed Concrete Strand Originating Or Exported From The People'S Republic Of China 31 December 2013 1 January 2014 ACT 504; PU(A) 233/1994
PU(B) 491/2013 Appointment Of Gaming Experts 31 December 2013 1 January 2014 ACT 289
PU(B) 490/2013 Amendment To The Declaration Of The Kuala Lumpur-Putrajaya Highway As A Designated Federal Territory Road - Corrigendum 31 December 2013 1 January 2014 PU(B) 19/2011
PU(B) 489/2013 Notice Of The Surrender Of Life And General Insurance Licence 30 December 2013 30 June 2013 ACT 758
[2013] 1 LNS(A) lxxxviii MALAYSIA

THE SECURITIES COMMISSION’S RETAIL BONDS AND SUKUK FRAMEWORK*

by

PAMELA KUNG CHIN WOON


IN THIS ARTICLE, PAMELA KUNG CHIN WOON REVIEWS THE SECURITIES COMMISSION’S RETAIL BONDS AND SUKUK FRAMEWORK AND THE INCENTIVES AFFORDED IN BUDGET 2013.

Introduction

On 7 September 2012, the Securities Commission Malaysia (“SC”) launched the retail bonds and sukuk framework in line with the initiatives set out under the SC’s Capital Market Masterplan 2 to facilitate greater retail participation in the bonds and sukuk market.[1] According to the SC, industry input and feedback were sought and practices adopted in other countries were taken into consideration in the development of the retail bonds and sukuk framework. As such, the framework is consistent with international practices and development initiatives.[2]

The retail bonds and sukuk framework provides retail investors direct access to invest in bonds and sukuk by enabling such bonds and sukuk to be issued and traded either on Bursa Malaysia (the Kuala Lumpur stock exchange) or over-the-counter via appointed banks. This is intended to meet retail investors’ demand for access to a wider range of investment products. At the same time, it also allows issuers to have access to a larger pool of investors. Prior to this, bonds and sukuk had been primarily accessible to institutional investors and high-net-worth individuals essentially due to the higher board lot size, while retail investors were largely confined to investments in bond funds.


. . .

* Published with kind permission of M/s Shearn Delamore & Co.


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[2013] 1 LNS(A) lxxxix MALAYSIA

WHICH ACT APPLIES TODAY TO OLD AGREEMENTS
- ARBITRATION ACT 2005 OR ARBITRATION ACT 1952

by

ARUNACHALAM KASI*


1. Abstract

It is years now since the Arbitration Act 2005 was enacted and came into force. Prior to this, the applicable law was the Arbitration Act 1952. One of the prime differences between the two legislations was that the stay of court proceedings in favour of an arbitration agreement was discretionary in the previous Act and it was made mandatory in the later Act. Apart from this, there are many significant differences between the law provided by the respective Acts. The later Act was enacted in substantial adoption of the UNCITRAL model law made by the United Nations in 1985. The object of the model law as well as the later local legislation was to promote arbitration as a powerful alternative dispute resolution mechanism. The later Act repealed and replaced the previous Act.

However courts have faced the question as to which Act applies for the case before them, even after the enforcement date of the later Act, that is 15th March 2006. This was particularly because the agreement in question was made prior to the enforcement date of the later Act. Still there are many active agreements in the market that were made prior to the enforcement date and accordingly disputes may emerge therefrom and thereupon the question of which Act applies. it is necessary to address this question, which this article attempts to do.


. . .

* Advocate & Solicitor


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