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Issue #28/2026
09 July 2026
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CASE SPOTLIGHTS
PP v. MOHAMAD NAJIB MOHAMED SIDEK [2026] 6 CLJ 624 For a urine specimen to be taken under the Dangerous Drugs Act 1952 ('DDA'), the individual must first be arrested. When a urine specimen is obtained pursuant to s. 31A of the DDA, the requirement to provide the specimen must come from a police officer not below the rank of Sergeant. A urine sample that has been obtained in breach of s. 31A of the DDA may render the evidence inadmissible and could be fatal to the prosecution's case. CRIMINAL PROCEDURE: Appeal - Appeal by prosecution - Charge under s. 15(1)(a) of Dangerous Drugs Act 1952 ('DDA') - 'Arrested person' - Whether arrest should be referrable to offence under DDA - Whether arrest precondition to taking of urine specimen - Accused person initially arrested for commercial crime - Whether properly arrested under s. 31A of DDA before urine specimen obtained - Whether illegally obtained evidence - Whether admissible under common law rules - Whether non-compliance with s. 31A(1A) fatal to prosecution case EVIDENCE: Admissibility - Urine specimen - Charge under s. 15(1)(a) of Dangerous Drugs Act 1952 ('DDA') - Whether urine specimen taken in compliance with s. 31A(1A) of DDA - Whether arrest precondition to urine-taking - Whether accused person properly arrested under s. 31A of DDA before urine specimen obtained - Whether illegally obtained evidence - Whether admissible under common law rules - Whether non-compliance with s. 31A(1A) fatal to prosecution case EVIDENCE: Admissibility - Urine specimen - Request for - Police officer not below rank of Sergeant - Whether police officer held rank recognised under First Schedule to Police Act 1967 - Whether authorised under s. 31A(1A) of Dangerous Drugs Act 1952 to require accused person to provide urine specimen WORDS & PHRASES: 'arrested person' - Section 31A(1) and (1A) of Dangerous Drugs Act 1952 ('DDA') - Whether arrest precondition to lawful taking of urine specimen - Whether arrest should be referrable to offence under DDA APPEAL UPDATES
LATEST CASESLegal Network Series
CLJ 2026 Volume 6 (Part 3) An inadvertent omission in a lower court's judgment, in this case, the omission to incorporate s. 34 of the Penal Code, does not render the charge flawed or defective, especially where the section has been clearly stated in the original charge. Further, deliberate and conscious participation in a crime, demonstrating a meeting of the minds to commit it leads to an irresistible inference that the accused persons were aware of the criminal actions. Once the elements of s. 34 have been satisfied and common intention is established beyond reasonable doubt, the accused persons should be held equally liable for the offence charged. CRIMINAL LAW | CRIMINAL PROCEDURE | EVIDENCE
CRIMINAL LAW: Common intention - Drug trafficking - Accused persons convicted for offences under s. 39B(1)(a) of Dangerous Drugs Act 1952 - Whether meeting of minds established - Whether common intention need to be shown to have been specifically directed at drug trafficking from outset - Whether there was clear and unequivocal consensus to proceed together to premise where drugs recovered - Whether totality of circumstances led irresistibly to inference that both accused persons aware of and agreed to participate in criminal purpose of visit - Whether common intention proven - Penal Code, s. 34 CRIMINAL PROCEDURE: Appeal - Trial judge's findings - Accused persons convicted for offences under s. 39B(1)(a) of Dangerous Drugs Act 1952 ('DDA') - Absence of s. 34 of Penal Code - Inadvertent omission to mention charges in full by High Court and Court of Appeal in judgments - Whether charges flawed - Whether court ought to have considered s. 39B(1)(a) of DDA on higher threshold - Whether s. 34 of Penal Code reflected in original charges in full EVIDENCE: Adverse inference - Failure to call witness - Whether material witness relevant to facts in issue - Whether invocation of adverse inference against prosecution justified or tenable - Evidence Act 1950, s. 114(g) Wan Ahmad Farid Salleh CJ
(i) An adjudicator cannot strip a party of its statutory right to file an adjudication response due to a failure to pay an advance security deposit. Doing so constitutes an act in excess of jurisdiction and a fundamental breach of natural justice; (ii) A settlement agreement and the subsequent discontinuance of a winding-up petition touching only upon certified sums do not operate as res judicata against a future adjudication claim for uncertified sums, provided those uncertified sums were never adjudicated on their merits or captured by the terms of the settlement. CONSTRUCTION LAW | CIVIL PROCEDURE
Adjudication - Payment claim - Non-payment of advance security deposit - Adjudicator barred respondent from submitting adjudication response - Failure by adjudicator to rule on respondent's application to file supplementary adjudication response - Whether adjudicator acted in excess of jurisdiction - Whether breach of natural justice and right to be heard - Construction Industry Payment and Adjudication Act 2012, s. 15(b), (d) CIVIL PROCEDURE: Res judicata - Doctrine of - Application - Appellant served payment claim for uncertified interim claims and retention sums - Prior winding-up petition based on certified outstanding amounts discontinued following settlement agreement - Whether claim barred by res judicata - Whether subject matter and relief sought in previous and extant proceedings different
Lim Chong Fong JCA
(i) In criminal trials for murder, a conviction can rest entirely on circumstantial evidence if the accumulated facts form a complete chain that irresistibly points to guilt and excludes any reasonable hypothesis of innocence. This evidentiary framework establishes guilt by analysing motive, systematic patterns of abuse, and contemporaneous statements of fear to contextualise the crime; (ii) Under the doctrines of common intention and joint liability, any individual who actively participates in either the execution or the subsequent cover-up of the offence shares full legal responsibility. This culpability is further proven by the 'last seen together' doctrine, which infers guilt when the accused exercises exclusive control over a secure crime scene within a narrow timeframe of the victim's death, especially when corroborated by forensic links and deceptive conduct that betrays a consciousness of guilt; (iii) Ultimately, when a murder is marked by extreme cruelty and an absolute disregard for human life, standard custodial sentences are legally inadequate; the law demands the maximum penalty to achieve permanent incapacitation, enforce retributive justice, and uphold the societal value of human life. CRIMINAL LAW | EVIDENCE | CRIMINAL PROCEDURE
CRIMINAL LAW: Penal Code - Section 302 - Murder - Conviction and death sentence - Appeal against - Deceased last seen with accused persons - Body of deceased found inside luggage bag - Whether prima facie case established against accused persons - Contents of witness statements of investigating officer - Whether admissible - Bad character of accused persons - Whether ought to be taken into consideration - Common intention - Whether proved - Whether High Court Judge erred in his appreciation of totality of evidence in finding accused persons guilty beyond reasonable doubt - Imposition of death penalty - Whether warranted and proportionate CRIMINAL LAW: Common intention - Murder - Joint liability - Inferential proof - Appeal against conviction and death sentence - Formation of common intention on spot - Whether common intention inferable from subsequent conduct of accused and surrounding circumstances - Whether second accused orchestrated cover-up and actively participated in concealing crime - Whether conduct fell within meaning of "in furtherance of" common intention - Whether common intention encompassed overarching plan to avoid liability - Whether there was active, continuous, and essential participation - Whether pre-arranged plan or similar intention inferred from surrounding facts and subsequent conduct - Penal Code, ss. 34 & 302 EVIDENCE: Circumstantial evidence - Chain of evidence - Conviction founded on circumstantial evidence - Whether there was complete chain leading irresistibly to guilt of accused persons - Accused persons last seen with deceased at locked and guarded house - Forensic evidence of death by strangulation and blunt force trauma - Deceased's DNA found on blood-stained cement bag seized from premises - Disposal of deceased's body in suitcase - Joint involvement and common intention - Whether motive grounded in greed - Whether combined effect of circumstantial evidence satisfied court beyond reasonable doubt - Penal Code, ss. 34 & 302 - Evidence Act 1950 CRIMINAL PROCEDURE: Sentence - Death penalty - Appeal against - Offence of murder - High Court Judge imposed death sentence following full trial - Whether High Court Judge erred in exercise of judicial discretion - Extreme brutality of offence - Impact on victim and her surviving child - Purpose of deterrence, incapacitation and closure - Whether imposition of death penalty warranted and proportionate - Penal Code, s. 302 Wong Kian Kheong JCA
The law imposes on every driver a positive duty to keep a proper lookout, to drive at a reasonable speed having regard to the circumstances and to be prepared for the unexpected, especially in areas where pedestrians may be present. A motorist's right of way is subject to the continuing duty to maintain proper lookout and control. The duty of care is, of course, reciprocal; while motorists must exercise heightened caution with respect to pedestrians, pedestrians are equally under a duty to ensure that they do not cross in circumstances where it is unsafe to do so. ROAD TRAFFIC | TORT
ROAD TRAFFIC: Accident - Accident between motorcyclist and pedestrian - Conflicting versions between parties - Whether motorcyclist liable - Whether pedestrian equally liable - Whether motorcyclist riding within permitted speed - Whether motorcyclist had right of way TORT: Negligence - Road accident - Liability - Appeal against apportionment of liability by Sessions Court - Accident between motorcyclist and pedestrian - Failure to reduce speed or take precautionary measures - Anticipation of risk - Duty of care of road users - Duty to act reasonably to avoid apparent danger - Standard of care for motorists in residential/rural areas - Apportionment of liability - Whether motorcyclist negligent - Whether pedestrian contributorily negligent TORT: Negligence - Contributory negligence - Road accident between motorcyclist and pedestrian - Duty of care of road users - Conflicting versions between parties - Whether collision occurred while pedestrian in process of crossing road - Whether pedestrian contributorily negligent TORT: Negligence - Road accident - Quantum of damages - Appeal against quantum of damages awarded by Sessions Court - Accident between motorcyclist and pedestrian - Sessions Court found motorcyclist liable and awarded damages - Whether damages awarded substantiated - Whether manifestly excessive
Abdul Wahab Mohamed J
(i) Communications exchanged between co-defendants during an active suit and in the preparation of interlocutory applications attract legal professional privilege if they are made in confidence for the dominant purpose of obtaining legal advice, discussing litigation strategy, or coordinating evidential preparation; (ii) To warrant the disqualification of counsel, an applicant must satisfy a high threshold by providing compelling evidence of an actual or perceived conflict of interest, or a reasonable likelihood that the solicitors will be called as material witnesses. CIVIL PROCEDURE | EVIDENCE | LEGAL PROFESSION
CIVIL PROCEDURE: Affidavits - Affidavit in reply - Filing of - Function and scope - Whether procedurally proper to address criticisms raised in written submissions or provide detailed response - Whether affidavit introduced fundamentally new case or altering basis of relief EVIDENCE: Privilege - Legal professional privilege - Communications - WhatsApp group chat communications - Communications exchanged between co-defendants during subsistence of joint retainer and active litigation - Communications entailed discussions on legal advice, litigation strategy, and evidential coordination - Whether communications protected by legal profession privilege LEGAL PROFESSION: Professional privilege - Communications - WhatsApp group chat communications - Communications exchanged between co-defendants during subsistence of joint retainer and active litigation - Communications entailed discussions on legal advice, litigation strategy, and evidential coordination - Whether communications protected by legal profession privilege LEGAL PROFESSION: Solicitors - Disqualification - Application to recuse or disqualify law firm from acting - Whether there were circumstances where fairness and administration of justice demand recusal or disqualification - Whether there was compelling evidence of actual or perceived conflict, or reasonable likelihood of solicitors being called as material witnesses Choong Yeow Choy J
An interlocutory order for the preservation of a specific fund, under O. 29 r. 2 of the Rules of Court 2012, is warranted where the fund constitutes an identifiable, specific sum directly related to the subject matter of a pending claim or counterclaim, and there exists a genuine dispute over its characterisation or ownership. In determining such an application, the court must assess the balance of justice and the risk of irretrievable prejudice without prejudging the ultimate merits of the case or usurping the function of the trial court. CIVIL PROCEDURE
CIVIL PROCEDURE: Summary judgment - Interim preservation of property - Dispute arising from outstanding sums under tenancy agreement - Disputed monies released pursuant to setting aside of summary judgment - Application for interim order to preserve sum by paying into court or securing via stakeholder - Whether funds constituted property which is subject matter of action or counterclaim - Whether there was genuine and honest dispute - Whether there was risk of irretrievable prejudice - Whether court pre-judged merits of main dispute or usurped function of trial court at interlocutory stage - Rules of Court 2012, O. 29 r. 2(1), (3)
Arziah Mohamed Apandi JC
A document should not be classified under Part C of the common agreed bundle of documents under O. 34 r. 2(2)(e) of the Rules of Court 2012 merely because a party asserts that its authenticity is disputed. Classification under Part C requires a real and identifiable challenge to the document's genuineness. Disputes relating only to the contents, relevance, evidential value or legal effect of a document fall within Part B. CIVIL PROCEDURE
CIVIL PROCEDURE: Documents - Common agreed bundle of documents - Classification of documents - Distinction between Part B and Part C - Rules of Court 2012, O. 34 r. 2(2)(e) - Whether bare assertion of disputed authenticity sufficient to warrant placement in Part C - Whether real and identifiable challenge to genuineness required - Whether dispute related to authenticity or merely contents and legal effects - Whether documents should be placed in Part B or Part C - Rules of Court 2012, O. 34 r. 2(2)(e)
Raja Segaran S Krishnan JC
(i) Animal welfare activists and non-governmental organisations do not automatically possess locus standi to challenge decisions or actions of local authorities on animal welfare grounds. They must satisfy the 'adversely affected' test by demonstrating a genuine and direct infringement of their legal rights or interests, and not merely a moral, ideological, or public interest concern; (ii) Civil courts cannot grant declaratory relief that would effectively determine criminal liability under a penal statute. Pursuant to s. 6 of the Specific Relief Act 1950, civil proceedings cannot be used to enforce criminal law or obtain declarations of criminal wrongdoing, as such matters fall strictly within the criminal justice process and the prosecutorial discretion of the Attorney General. ADMINISTRATIVE LAW | STATUTORY INTERPRETATION | TORT
ADMINISTRATIVE LAW: Declaration - Declaratory reliefs - Application for declarations that Local Authority's disposal of stray dogs by firearms shooting contravened Animal Welfare Act 2015 - Whether animal rights activists and animal welfare non-governmental organisation had locus standi to maintain application - Whether 'adversely affected' test satisfied - Whether civil court could grant declarations effectively determining criminal liability under penal provisions - Specific Relief Act 1950, s. 6 ADMINISTRATIVE LAW: Judicial review - Validity of legislation - Undang-undang Kecil Pelesenan Anjing (Majlis Daerah Besut) 1990, s. 9(1) & (2) - Challenge to validity of by-laws authorising destruction of stray dogs - Whether provisions inconsistent with ss. 29(1)(e) and 30 of Animal Welfare Act 2015 - Whether Local Authority authorised to destroy stray dogs by firearms shooting for purposes of animal population control STATUTORY INTERPRETATION: 'Notwithstanding subsection (1)' - Animal Welfare Act 2015, s. 30(2) - Whether s. 30(2) constituted an exception to s. 30(1) - Whether authorised authorities could dispose of animals by firearms shooting for purposes of animal population control notwithstanding restrictions contained in s. 30(1) TORT: Vicarious liability - Liability of State Government for actions of Local Authority - Claim for declaratory relief against State Government arising from actions of Local Authority in disposal of stray dogs - Whether s. 5 of Government Proceedings Act 1956 applicable to claims for declaratory relief - Whether Local Authority, being body corporate with separate legal personality, solely responsible for its own acts Yusrin Faidz Yusoff JC
While a banking customer's voluntary disclosure of security credentials to scammers breaches cardholder obligations and initiates a loss, such deception does not entirely sever the chain of causation if the fraud unfolds incrementally over several days rather than instantaneously. A financial institution's prolonged failure to act upon an objectively detectable transaction pattern constitutes an independent and continuing omission. Consequently, the institution is liable in negligence and for breach of contract for failing to deploy its automated fraud detection systems and exercise its contractual powers to halt an ongoing, multi-day fraud event. Under statutory principles of apportionment, although both parties are causative of the damage, a sophisticated financial institution bears a greater institutional responsibility to safeguard vulnerable clients. BANKING | TORT | CIVIL PROCEDURE
BANKING: Banker and customer - Duty of care - Unauthorised ATM withdrawals and MEPS fund transfers - Deceased 85-year-old preferred customer with 30 years' standing - Scammers obtaining debit card and PIN via scam call - Failure by bank to take protective steps, send notifications, or restrict account - Whether financial institution possessing advanced fraud detection systems and contractual powers to freeze account - Whether bank breached duty of care and contractual obligations to exercise fraud detection capabilities BANKING: Banker and customer - Quincecare duty - Nature and application - Scammers utilising customer's debit card and PIN directly at ATMs and MEPS transfers without customer's contemporaneous instructions - Bank's terms and conditions empowering intervention upon suspicion of fraudulent or abnormal transactions - Whether Quincecare duty applied where customer did not issue payment orders TORT: Negligence - Contributory negligence - Apportionment of liability - Customer voluntarily disclosing PIN and surrendering debit card to scammers - Fraud occurred continuously over 14 consecutive days - Whether bank failed to detect or intervene despite obvious abnormal transaction pattern - Whether customer's conduct broke chain of causation entirely - Civil Law Act 1956, s. 12 CIVIL PROCEDURE: Pleadings - Subsidiary legislation - Bank Negara Malaysia ('BNM') guidelines issued under Financial Services Act 2013 - Guidelines not specifically pleaded in statement of claim - Whether BNM guidelines could be considered by court - Whether guidelines constituted facts requiring pleading - Whether there was surprise or prejudice to opposing party - Whether bank's officers fully trained on guidelines and compliance framework - Whether claim depended solely on guidelines - Whether there was independent legal bases via Quincecare duty and contractual terms Noradura Hamzah JC
ARTICLESCLJ Article(s)
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