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Issue #25/2026
18 June 2026
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CASE SPOTLIGHTS
PP v. HARIS FADZILAH ABU BAKAR & ANOR AND OTHER APPEALS [2026] 6 CLJ 72 Under r. 105 of the Rules of the Court of Appeal 1994, the Court of Appeal possesses the inherent power to strike out appeals to prevent an abuse of process, such as when there is no reasonable prospect of a hearing, and conversely, to reinstate them under r. 1A to prevent injustice, particularly where the merits have not yet been ventilated. Once an appeal against an acquittal is reinstated, it falls within the ambit of s. 56A of the Courts of Judicature Act 1964, granting the court discretionary power to issue a warrant of arrest. The court may also exercise its discretion to grant bail, taking into account factors such as the accused's employment status, previous compliance with bail conditions, and the absence of flight risk, thereby negating the need for the surrender of travel documents. CRIMINAL PROCEDURE: Appeal - Court of Appeal - Striking out and reinstatement - Appeal struck out for failure to serve notice on respondent - Whether appellate court had power to reinstate appeal previously struck out - Merits of appeal not yet ventilated - Rules of the Court of Appeal 1994, rr. 1A & 105 CRIMINAL PROCEDURE: Appeal - Acquittal - Warrant of arrest - Issuance of warrant of arrest against respondent - Whether appellate court had power to issue warrant - Whether a judicial act - Presumption of lawfulness - Discretion of court - Courts of Judicature Act 1964, s. 56A - Evidence Act 1950, s. 114(e) CRIMINAL PROCEDURE: Bail - Application for - Application for bail pending appeal against acquittal - Discretionary power of Court of Appeal - Factors for consideration - Respondent's occupation and conduct during trial - Impact of High Court's acquittal order - Whether respondent a flight risk - Conditions of bail - Whether surrender of international passport necessary - Courts of Judicature Act 1964, s. 56A JUDICIAL QUOTES“A court would not be equipped to decide on the legality of the YDPA’s satisfaction of national threats as it would be impossible to adduce all available facts before the courts and as such it would be inappropriate for a court exercising powers of judicial review to make value judgments of a non-judicial nature.” “The courts are simply ill equipped to deal with matters involving national security. By its very nature, sensitive information cannot be disclosed to the court. Matters relating to national security are best left to the agencies who are privy to sensitive information. The executive is best placed to advise the Yang di-Pertuan Agong in such matters.” “There is an obvious overlap here in the separation of powers. In such situations, the courts themselves must tread carefully lest they themselves fall foul of the rule against transgressing the separation of powers.” “It is for the reasons stated above, that we hold that the emergency powers under art. 150 to be non-justiciable.” - Per Collin Lawrence Sequerah JCA in Syed Iskandar Jaafar v. Kerajaan Malaysia & Ors [2026] 6 CLJ 178 APPEAL UPDATES
LATEST CASESLegal Network Series
CLJ 2026 Volume 5 (Part 5) (i) Where an applicant seeks to challenge the constitutionality of an impugned earlier decision on grounds not previously ventilated, such a challenge remains justiciable in a review application under r. 137 of the Rules of the Federal Court 1995, provided that it is demonstrated that the factual substratum necessary to support the constitutional challenge was not available at the material time; (ii) The mere existence of a remote risk of mortality or an adverse medical outcome incidental to a prescribed punishment, such as whipping, does not render that punishment unconstitutional or an unlawful deprivation of the right to life under art. 5(1) of the Federal Constitution ('FC'). For a punishment to be set aside on medical grounds, there must be clear medical evidence of a direct causal link between the punishment and a specific risk of death for the individual applicant. Where an intervening factor, such as medical mismanagement, exists, it constitutes a novus actus interveniens, severing the causal link between the judicial sentence and the fatality; (iii) International conventions and treaties do not have the force of law in Malaysia unless and until they are expressly incorporated into domestic legislation by Parliament. The ultimate test for the legality and constitutionality of a sentence is the FC itself, not external international standards or instruments. CONSTITUTIONAL LAW | CRIMINAL PROCEDURE
CONSTITUTIONAL LAW: Fundamental liberties - Right to life and personal liberty - Federal Constitution, art. 5(1) - Sentence of whipping - Challenge against constitutionality of whipping - Death of third-party inmate due to 'septic sequelae' following whipping - Allegation that whipping carries risk of death not authorised by law - Whether punishment of whipping aims to deprive right to life - Whether sentence of whipping contravened art. 5(1) CONSTITUTIONAL LAW: Fundamental liberties - Equality before law - Federal Constitution, art. 8(1) & (2) - Sentence of whipping - Proportionality test - Exemption of women from whipping - Whether based on valid preferential treatment - Whether mandatory whipping provisions balanced exercise of legislative power - Whether sentence of whipping contravened art. 8(1) & (2) CONSTITUTIONAL LAW: Fundamental liberties - Right to life and personal liberty - Interpretation - International conventions - 'Acid test' of constitutionality - Federal Constitution as supreme law - Whether international treaty obligations form part of domestic law - Whether international instruments relevant where Parliament has not incorporated same into legislation - Universal Declaration of Human Rights, article 3 - International Covenant on Civil and Political Rights, article 9(1) CRIMINAL PROCEDURE: CRIMINAL PROCEDURE: Sentence - Review - Application to set aside whipping sentences - Death of third-party inmate after whipping - Medical findings of 'septic sequelae due to blunt force trauma' - Whether novus actus interveniens - Whether medical mismanagement severed causal link - Factual substratum not available during earlier re-sentencing - Whether applicants proved unfitness to undergo whipping - Whether sentence of whipping constitutional - Whether 'exceptional case' warranting review - List of exceptional circumstances in Asean Security Paper Mills Sdn Bhd v. Mitsui Sumitomo Insurance (Malaysia) Sdn Bhd - Dangerous Drugs Act 1952, s. 39B(1)(a) - Penal Code, s. 302 - Rules of the Federal Court 1995, r. 137
Wan Ahmad Farid Salleh CJ (Application Nos: 07-23-11-2024(W) & 07-24-11-2024(W))
Under ss. 100 and 103A of the Legal Profession Act 1976, once the Advocates and Solicitors Disciplinary Board ('DB') determines that a complaint against an advocate and solicitor has merit and decides to appoint a Disciplinary Committee for a formal inquiry, it becomes functus officio regarding that preliminary determination. Consequently, the DB cannot reverse its decision to summarily dismiss the complaint, as doing so constitutes a breach of mandatory statutory requirements, natural justice, and the complainant's legitimate expectation. Furthermore, any exercise of the DB's power to dismiss a complaint summarily, under s. 100(15) must be read in conjunction with s. 100(4), which mandates the issuance of a written notice to the advocate and solicitor to obtain their agreement for the matter to be dealt with summarily; failure to comply with this procedural requirement renders the dismissal void. LEGAL PROFESSION
LEGAL PROFESSION: Disciplinary proceedings - Complaint against legal firm - Advocates and Solicitors Disciplinary Board ('DB') - Complaint by complainant against firm on misconduct in performing duties in relation to purchase of property - DB found merit in complaint and decided to appoint Disciplinary Committee ('DC') - DB summarily dismissed complaint - Whether DB could subsequently reverse decision and dismiss complaint without appointing DC - Whether DB functus officio - Whether breach of natural justice and legitimate expectation -Legal Profession Act 1976, ss. 100(3)(b), 100(4) & 103A(1)(a)
Azhahari Kamal Ramli JCA
Written opinions of the appointed assessors form part of the evidential basis for the court's assessment of compensation in a land reference proceeding. They must therefore be furnished to the parties within sufficient time before the delivery of the court's decision to enable meaningful submissions thereon. LAND LAW
LAND LAW: Acquisition of land - Award of compensation - Compulsory acquisition - Appeal against compensation awarded - Assessment of market value - Assessors' written opinions ('written opinions') relied on by High Court - Failure by High Court to disclose written opinions to parties before decision - Whether breach of audi alteram partem principle - Whether non-compliance with s. 40C of Land Acquisition Act 1960 - Applicability of Federal Court case of Tegas Sejati Sdn Bhd v. Pentadbir Tanah Dan Daerah Hulu Langat & Anor And Another Appeal - Whether appellate court bound to apply prevailing law - Whether non-disclosure mere technical irregularity - Whether rehearing required
Lim Chong Fong JCA
The High Court's jurisdiction to uphold a creditor's objection to a discharge by the Director-General of Insolvency ('DGI'), is strictly circumscribed by s. 33B(6) of the Insolvency Act 1967. The court possesses no residual or inherent jurisdiction to prohibit the issuance of a certificate of discharge indefinitely. Any order preventing the discharge is subject to a mandatory statutory cap of two years. Proceedings under s. 33B are supervisory, not a de novo merits review. The court should not substitute its own discretion for that of the DGI. A creditor challenging the DGI's intention to discharge a bankrupt must satisfy a three-limb threshold test akin to judicial review standards, ie, illegality, irrationality and procedural impropriety. BANKRUPTCY
BANKRUPTCY: Discharge - Certificate - Certificate of discharge issued by Director-General of Insolvency - Objection by creditors - High Court prohibited issuance of certificate indefinitely - Roles of court in proceedings under s. 33B of Insolvency Act 1967 - Whether High Court exceeded jurisdiction - Whether correct legal test applied - Whether unrealised land valid ground to object to discharge - Whether High Court order sustainable
Azizul Azmi Adnan JCA (Civil Appeal No: W-03(IM)-62-11-2024)
Insolvency set-off is preserved as a statutory exception to the pari passu principle by virtue of s. 526 of the Companies Act 2016, meaning that a pre-existing contractual right of set-off is not extinguished upon the making of a winding-up order. Within this statutory framework, the 'relevant transaction' refers strictly to the underlying contract giving rise to the mutual dealings rather than to the subsequent act of set-off itself. These essential mutual dealings arise only where there exists a reciprocal debtor-creditor relationship, such as a bank's liability to a customer for an outstanding account balance paired with that same customer's liability to repay a loan. COMPANY LAW
COMPANY LAW: Winding up - Liquidation - Insolvency set-off - Application by liquidator to recover monies deducted by bank from company's account - Whether bank entitled to exercise contractual and statutory right of set-off post-liquidation - Whether right extinguished upon winding up - Whether 'mutual dealings' under s. 526 of Companies Act 2016 established - Whether relevant transaction was loan agreement or act of set-off - Whether bank had notice of winding-up order - Whether monies held on trust - Whether set-off constituted undue preference or breached pari passu principle - Whether set-off lawful
Muhammad Adam Abdullah JC
(i) Seksyen 14(a) Akta Kesalahan Seksual Terhadap Kanak-Kanak 2017 ('Akta') hanya terpakai pada perbuatan amang seksual yang melibatkan sentuhan fizikal tanpa melibatkan persetubuhan, iaitu kemasukan kemaluan; (ii) Seksyen 24 Akta melarang pemberian bon kelakuan baik untuk kesalahan yang dilakukan bawah Akta tersebut. Peruntukan khusus ini mengatasi peruntukan umum bon kelakuan baik bawah s. 294 Kanun Tatacara Jenayah. UNDANG-UNDANG JENAYAH | PROSEDUR JENAYAH
UNDANG-UNDANG JENAYAH: Kesalahan - Amang seksual fizikal - Seksyen 14(a) Akta Kesalahan Seksual Terhadap Kanak-Kanak 2017 - Sama ada merangkumi persetubuhan iaitu kemasukan kemaluan - Sama ada pertuduhan melibatkan persetubuhan bawah s. 14(a) sah - Sama ada kecacatan pertuduhan boleh diremedi bawah s. 422 Kanun Tatacara Jenayah PROSEDUR JENAYAH: Hukuman - Bon kelakuan baik - Seksyen 294 Kanun Tatacara Jenayah ('KTJ') - Sama ada terpakai pada kesalahan bawah Akta Kesalahan Seksual Terhadap Kanak-Kanak 2017 ('Akta') - Sama ada s. 24 Akta mengatasis. 294 KTJ
Suriyati Hasimah Mohd Hashim PK
An advocate's application to cease acting on behalf of a client based on the non-payment of fees requires strict evidence of a valid, enforceable agreement, which must be in writing pursuant to s. 15(1) of the Advocates Ordinance (Sarawak) (Cap 110). The failure to produce a warrant to act or provide specific details regarding the retainer's terms, including fee structures, payment schedules and prior notices of demand, is fatal to such an application, as the court cannot verify the existence of an enforceable debt. However, even where an application fails on these procedural grounds, a solicitor is automatically discharged by operation of law if the client is adjudged bankrupt. LEGAL PROFESSION
LEGAL PROFESSION: Solicitor and client - Withdrawal of - Application for order to cease acting as solicitor - Breakdown in solicitor-client relationship and outstanding professional fees - Whether supporting affidavit lacking in particulars - Failure to provide details of retainer, payment structure or prior notices of demand - Whether there was good cause shown for withdrawal - Whether reasonable notice given to client - Rules of Court 2012, O. 64 r. 5 - Advocates Ordinance (Sarawak) (Cap 110), s. 15(1) LEGAL PROFESSION: Solicitor and client - Retainer - Advocates Ordinance (Sarawak) (Cap 110), s. 15(1) - Requirement for fee agreements to be in writing - Failure to produce warrant to act containing fee structure - Whether agreement for fees enforceable without production of written warrant - Whether failure to produce warrant fatal to application to cease acting as solicitor on grounds of unpaid fees - Rules of Court 2012, O. 64 r. 5 - Advocates Ordinance (Sarawak) (Cap 110), s. 15(1) LEGAL PROFESSION: Solicitor and client - Discharge of solicitor - Bankruptcy of client - Effect of bankruptcy on solicitor-client relationship - Whether bankruptcy operates as an automatic discharge of solicitor - Inability of bankrupt client to fulfil future financial obligations - Whether solicitor-client relationship extends to Director General of Insolvency
Zaleha Mohd Yusuf Pan JC
A First Class Magistrates' Court possesses the inherent jurisdiction to hear and determine constitutional law questions that arise during a trial. Section 85 of the Subordinate Courts Act 1948 grants trial jurisdiction to these courts, and the absence of explicit statutory limitations means they are not precluded from addressing constitutional issues. Consequently, a Magistrate is not mandatorily required to refer such questions to the High Court under s. 30 of the Courts of Judicature Act 1964 if they are capable of deciding the matter themselves. CONSTITUTIONAL LAW | CRIMINAL PROCEDURE
CONSTITUTIONAL LAW: Courts - Jurisdiction - Subordinate Courts - Reference of questions to High Court - Whether Magistrate acted ultra vires in refusing to transmit questions - Whether First Class Magistrate has jurisdiction to hear and determine constitutional law questions - Whether questions without merit - Subordinate Courts Act 1948, s. 85 - Courts of Judicature Act 1964, s. 30 CRIMINAL PROCEDURE: Trial - Trial at Magistrates' Court - Reference of constitutional questions to High Court - Stage of trial for making ruling - Whether application to refer questions premature before close of defence case - Whether technical questions disguised as constitutional questions - Whether there existed special circumstances warranting stay of criminal trial
Noor Ruwena Md Nurdin J
CLJ 2026 Volume 5 (Part 6) To secure leave to commence proceedings in the Federal Court, an applicant must establish both a necessity for leave and the existence of an arguable case. Where the underlying challenge directly impugns the competency of a State Legislature to enact laws touching upon matters within the Federal List, the dispute falls squarely within the exclusive jurisdiction of the Federal Court pursuant to the Federal Constitution. Consequently, because such constitutional questions cannot be adjudicated by any subordinate forum, leave to proceed ought to be granted as a matter of course. CIVIL PROCEDURE
CIVIL PROCEDURE: Appeal - Leave - Application for declaratory orders against State Government of Sarawak and Government of Malaysia - Issues pertaining to constitutionality of laws - Challenge against power or competency of Legislature of State of Sarawak to enact laws to regulate matters under Federal List - Whether challenge raised reserved for original jurisdiction of Federal Court - Whether matters to be canvassed before Federal Court - Whether applicant demonstrated that leave necessary - Federal Constitution, arts. 4(3), 4(4) & 128(1) - Rules of the Federal Court 1995, r. 30
Hashim Hamzah CJ (Malaya)
Under O. 53 of the Rules of Court 2012, there is only a single leave threshold for judicial review: whether the application discloses an arguable case that is neither frivolous nor vexatious. The law does not recognise formally distinct or higher leave tests for different classes of public authorities, including prosecutorial decisions made under art. 145(3) of the Federal Constitution. While the threshold remains one of 'arguability', when the challenge involves the Attorney General's ('AG') prosecutorial discretion, the court must apply that single test with heightened discipline, caution, and restraint. This approach respects the constitutional status of the AG, the presumption of legality and the doctrine of separation of powers. ADMINISTRATIVE LAW | CIVIL PROCEDURE | CONSTITUTIONAL LAW
ADMINISTRATIVE LAW: Judicial review - Leave - Threshold - Attorney General's ('AG') decision to discontinue prosecution while trial at advanced stage and to seek discharge not amounting to acquittal - Challenge against AG's prosecutorial discretion - Whether law recognises different leave threshold for prosecutorial decisions - Whether applicant required to show 'compelling and prima facie proof' - Whether single leave test of 'arguable case' applied - Rules of Court 2012, O. 53 r. 3(1) - Sundra Rajoo Nadarajah v. Menteri Luar Negeri, Malaysia & Ors CIVIL PROCEDURE: Judicial review - Leave - Threshold - Attorney General's ('AG') decision to discontinue prosecution while trial at advanced stage and to seek discharge not amounting to acquittal - Challenge against AG's prosecutorial discretion - Threshold for prosecutorial decisions - Rules of Court 2012, O. 53 r. 3(1) CONSTITUTIONAL LAW: Prosecutorial powers - Attorney General ('AG') - Exercise of discretion - AG's decision to discontinue prosecution while trial at advanced stage and to seek discharge not amounting to acquittal - Challenge against AG's prosecutorial discretion - Whether AG's decision amenable to judicial review - Federal Constitution, art. 145(3) - Criminal Procedure Code, s. 254(1) Faizah Jamaludin JCA
(i) There is a strict distinction between 'lifting' and 'piercing' a corporate veil. While lifting is a purely investigative exercise to examine the underlying facts or corporate structure of a company without imposing liability on third parties, piercing is the judicial imposition of liability on a non-contracting individual or entity, such as a parent company or shareholder, for the defaults of another; (ii) Under ss. 91 and 92 of the Evidence Act 1950, when the terms of an agreement are reduced to writing, no oral evidence or pre-contractual representations may be admitted to contradict, vary, add to, or subtract from those written terms. COMPANY LAW | CONTRACT
COMPANY LAW: Separate legal entity - Parent and subsidiary - Corporate group - Retail mall development - Nominal subsidiary incorporated with low paid-up capital - Subsidiary entered into tenancy agreements and defaulted on rent - Group of companies utilising subsidiaries to isolate risk and avoid future liabilities - Distinction between 'lifting' and 'piercing' corporate veil - Whether corporate veil could be pierced to impose contractual liability on parent company - Whether 'interest of justice' standalone ground to pierce corporate veil - Whether undercapitalisation, common directors, and common registered offices sufficient to constitute fraud or sham - Companies Act 2016, s. 20 - Evidence Act 1950, ss. 101 & 102 CONTRACT: Agreement - Tenancy agreement - Privity of contract - Subsidiary defaulting on rent payments - Parent company not party to tenancy agreements and provided no written guarantee - Effect of entire agreement clause on pre-contractual representations and oral assurances - Admissibility of extrinsic evidence to contradict or vary written terms - Whether contractual terms of tenancy agreements could be enforced against parent company - Evidence Act 1950, ss. 91 & 92
See Mee Chun JCA
Assignment of copyright in a work does not divest the author of his or her moral rights under s. 25 of the Copyright Act 1987. Although an assignee acquires the rights to control, reproduce, and exploit the work, the author retains the moral right to be identified as its author and to object to any distortion, mutilation, or modification of the work that is prejudicial to his or her honour or reputation. INTELLECTUAL PROPERTY
INTELLECTUAL PROPERTY: Copyright - Infringement - Moral rights - Whether author retained moral rights despite assignment of copyright in Master's dissertation ('dissertation') - Whether reproduction and modification of dissertation without attribution to author infringed moral rights of integrity and paternity of author - Whether modifications prejudicial to author's honour or reputation - Copyright Act 1987, s. 25 INTELLECTUAL PROPERTY: Patent - Invalidation - Novelty - Whether Master's dissertation constituted prior art anticipating patent claims - Whether patent lacked novelty and inventive step - Whether patent invalid ab initio - Patents Act 1983, ss. 14 & 56
Azizah Nawawi CJ (Sabah & Sarawak)
(i) The High Court's decision to reverse an acquittal and order the accused to enter his defence under s. 316 of the Criminal Procedure Code need not be accompanied by written reasons. The absence of such reasons, by itself, does not warrant appellate interference unless it has occasioned a failure of justice; (ii) Once the High Court, on appeal, has ordered the accused to enter his defence, the lower court is bound to proceed strictly in accordance with that order and is not entitled to re-evaluate or reopen the High Court's prima facie assessment. The trial must continue at the defence stage as directed. CRIMINAL PROCEDURE
CRIMINAL PROCEDURE: Appeal - Appeal against decision of High Court - Reversal of Magistrates' Court acquittal - Materiality of inconsistencies in prosecution witness evidence - Whether appellate interference justified - Absence of written grounds of judgment by earlier High Court Judge - Whether omission occasioned miscarriage of justice - Compliance with ss. 316 and 319 of Criminal Procedure Code - Whether Magistrates' Court entitled to revisit prima facie finding made by High Court - Whether conviction safe - Whether appeal ought to be dismissed
Supang Lian JCA
An attempt to cheat an insurance company through fraudulent critical illness claims is established when dishonest intention is proven via forensic and circumstantial evidence, particularly through inconsistencies between medical reports and radiological findings. This fabrication is further reinforced by a claimant's healthy status prior to the claim and the denial of treatment by listed medical providers. Consequently, where a defence fails to raise reasonable doubt against overwhelming documentary and oral evidence, a conviction must be upheld. A sentence of two years' imprisonment and whipping is commensurate with the gravity of such insurance fraud; such a penalty serves as a deterrent, sending a clear message to the public that crime does not pay, even when it is only an attempt. CRIMINAL LAW | CRIMINAL PROCEDURE | INSURANCE
CRIMINAL LAW: Penal Code - Section 420 - Attempted cheating - Fraudulent insurance claim for critical illness - Submission of false CT scan report - Conflicting medical reports - Incomplete claim forms - Failure to provide details of treating medical consultants - Discovery of fraud through verification process - Whether there was false representation to induce insurance company to process claim - Prima facie case - Whether established - Whether prosecution proved case beyond reasonable doubt CRIMINAL PROCEDURE: Sentence - Attempted cheating - Sentence of two years' imprisonment and two strokes of rotan for attempted cheating - Whether sentence commensurate with nature of offence - Principles of sentencing - Deterrence - Public interest - Whether sentence manifestly adequate INSURANCE: Claim - Fraudulent claim - Life insurance policy - Attempt to claim for critical illness and disability - Evaluation of medical evidence - Whether there was conflicting CT scan results - Incomplete claim forms and failure to furnish details of treating consultants and medical questionnaires - Whether there was false representation to induce insurance company to process claim - Whether there was intention to deceive and attempt to cheat - Penal Code, s. 420 Noor Ruwena Md Nurdin J
The lawful seizure of a vehicle under s. 80(1) of the Land Public Transport Act 2010 does not grant the authorities an indefinite right of detention; rather, it is strictly governed by the mandatory requirement under s. 80(5) to institute prosecution within one calendar month. Prosecution is legally instituted only when the court takes cognisance of the offence and the accused is called to plead, meaning the mere filing of a summons without timely service or arraignment fails to satisfy the statutory deadline. The discretionary power to refuse the temporary release of a vehicle must be exercised reasonably and transparently; a failure to provide reasons, especially when faced with evidence of an 'innocent owner' who expressly prohibited the illegal conduct, renders continued detention disproportionate and unlawful. Any failure to prosecute the actual wrongdoer within the prescribed timeframe necessitates the immediate release of the seized property to the owner, as statutory provisions involving the deprivation of property rights demand strict procedural compliance. CIVIL PROCEDURE | STATUTORY INTERPRETATION | ROAD TRAFFIC | WORDS & PHRASES
CIVIL PROCEDURE: Declaration - Application for - Seizure and continued detention of vehicles - Application for release rejected without reasons - Whether commission of offence established - Whether there was procedural fairness - Whether continued detention of vehicles exceeding one month without active prosecution justified - Whether innocent owner could be held liable for unauthorised acts of hirer under s. 16(1) of the Land Public Transport Act 2010 STATUTORY INTERPRETATION: Land Public Transport Act 2010 - Section 80(1), (2) and (5) - Seizure and detention of vehicles - Singapore-registered private hire vehicles operating in Malaysia without valid operator's licence - Whether seizure lawful - Refusal to temporarily release vehicles - Whether refusal proper where owner prohibited cross-border use - Whether continued detention of vehicles beyond one month lawful ROAD TRAFFIC: Operator's licence - Private hire vehicles - Unauthorised crossborder passenger transport - Seizure of vehicles under s. 80(1) of Land Public Transport Act 2010 - Liability of registered owner - Vehicle leasing agreement and letter of undertaking expressly prohibiting use outside Singapore - Whether owner's lack of knowledge or consent valid defence against seizure and forfeiture WORDS & PHRASES: 'Institution of prosecution' - Land Public Transport Act 2010, s. 80(5) - Meaning and application in context of statutory deadlines for vehicle release Noradura Hamzah JC
The legal framework for non-delegable duty is authoritatively set out by the Federal Court in Hemraj & Co Sdn Bhd v. Tenaga Nasional Bhd which adopted the principles from Woodland v. Essex County Council. The Federal Court identified two categories of cases where a non-delegable duty arises: (i) where the work is inherently or extraordinarily hazardous; and (ii) where there exists a special relationship between the principal and the victim. The test for category (i) is whether the work is 'exceptionally dangerous whatever precautions are taken'. This does not mean that no precautions are available at all, but rather that even with all known and reasonable precautions in place, a significant and viable risk remains. Hence, an employer – who commissions work which is exceptionally hazardous, or work which involves a special danger to others, no matter what care is taken in its execution – owes a non-delegable duty to ensure that reasonable care is taken to prevent injury and damage. If a non-delegable duty arises, the employer cannot escape liability by delegating work to an independent contractor; the employer remains responsible for the contractor's negligence. TORT | UTILITIES
TORT: Negligence - Duty of care - Breach of duty - Land reclamation project caused damages to Tenaga Nasional Berhad's ('TNB') high voltage submarine cable - Works carried out by independent contractor - Whether reasonable care taken in conducting reclamation works near cable - Whether marine works directly affected TNB's cable - Whether damages foreseeable - Whether proximity established - Whether reasonable contractor would commence hazardous works near high-voltage cables without utility owner's approval - Whether independent contractor breached duty of care to TNB TORT: Negligence - Duty of care - Breach of duty - Causation - Whether causation to be proved with absolute certainty - Whether requires proof on balance of probabilities - Land reclamation project caused damages to high voltage submarine cable - Whether causation proved TORT: Negligence - Duty of care - Non-delegable duty of care - Land reclamation project caused damages to Tenaga Nasional Berhad's ('TNB') high voltage submarine cable - Works carried out by independent contractor - Whether reasonable care taken in conducting reclamation works near cable - Whether works undertaken exceptionally hazardous - Whether developer owed non-delegable duty to TNB to ensure reasonable care taken - Whether developer as employer liable for negligent act of independent contractor TORT: Negligence - Res ipsa loquitur - Inference of negligence - Land reclamation project caused damages to high voltage submarine cable - Works carried out by independent contractor - Whether independent contractor in sole management and control of anchor that caused damage - Whether occurrence of anchor-cable contact bespeaks negligence - Whether residual evidential gap filled by res ipsa loquitur to permit inference of negligence - Whether presumption rebutted UTILITIES: Electricity infrastructure - Damages - Liability - Strict liability regime for civil compensation - Whether payment for civil compensation provides immunity from criminal liability - Whether criminal liability prerequisite for civil compensation - Whether Electricity Supply Act 1990 designed to protect critical electricity infrastructure - Whether party causing damage liable to pay full compensation - Electricity Supply Act 1990, ss. 37(12)(a) & 41(1)
Kenneth St James J
ARTICLESCLJ Article(s)
LNS Article(s)
LEGISLATION HIGHLIGHTSPrincipal Acts
Amending Acts
PU(A)
PU(B)
Legislation Alert Updated
Revoked
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