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  1. MOHAMMAD NAJIB TUN HJ ABDUL RAZAK v. THOMAS THOMAS K THOMAS [2026] 5 CLJ 220

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  2. CLJ 2026 Volume 5 (Part 1)

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CASE SPOTLIGHTS

MOHAMMAD NAJIB TUN HJ ABDUL RAZAK v. THOMAS THOMAS K THOMAS [2026] 5 CLJ 220
COURT OF APPEAL, PUTRAJAYA
RAVINTHRAN PARAMAGURU JCA
WONG KIAN KHEONG JCA
NADZARIN WOK NORDIN JCA
[CIVIL APPEAL NO: W-01(IM)(NCVC)-907-12-2022]
13 JANUARY 2026

CONSTITUTIONAL LAW: Attorney General - Prosecutorial discretion - Attorney General authorised prosecution of claimant for various offences - Claim by claimant against Attorney General for torts of misfeasance in public office, malicious process, negligence and breach of art. 8 of Federal Constitution - Whether Attorney General immune from civil liability - Whether discretion unfettered - Whether exercise of power immunised from civil actions if abused or exercised in bad faith - Federal Constitution, art. 145(3)

TORT: Misfeasance in public office - Claim against former Attorney General - Attorney General authorised prosecution of claimant for various offences - Claimant filed civil suit while criminal proceedings still pending - Whether claim founded on decision to prosecute premature - Whether particulars sufficiently particularised

TORT: Malicious process - Claim against former Attorney General - Attorney General authorised prosecution of claimant for various offences - Whether malicious process recognised cause of action in Malaysian law - Whether proper cause of action

TORT: Negligence - Duty of care - Statements made by former Attorney General against accused after leaving office - Whether duty of care owed in capacity as private citizen - Whether remedy lay in negligence

CIVIL PROCEDURE: Striking out - Writ and statement of claim - Claim against former Attorney General for misfeasance in public office, malicious process, and negligence - Whether claim premature and unsustainable - Whether plain and obvious case for striking out - Rules of Court 2012, O. 18 r. 19

APPEAL UPDATES

1. Capital City Property Sdn Bhd v. Teh Swee Neo & Anor [2026] CLJU 402 overruling the High Court case of Teh Swee Neo & Anor v. CCRM Management Sdn Bhd & Anor [Civil Suit No.: JA-22NCvC-160-10/2019]

2. Cosmopolitan Avenue Sdn Bhd v. Dickson Woo Boon Siew & Ors [2026] CLJU 420 overruling in part the High Court case of Dickson Woo Boon Siew & Ors v. Cosmopolitan Avenue Sdn Bhd [2024] CLJU 1477

LATEST CASES

Legal Network Series

CLJ 2026 Volume 5 (Part 1)

(i) Under s. 13 of the National Forestry Act 1984, a State Authority may issue a Gazette notification that specifies an effective date for the excision of forest reserves that precedes the date of the Gazette publication itself. The cessation of a forest reserve status takes effect from the date stipulated in the notification, rather than the date the Gazette was printed or published; (ii) To have the standing to initiate judicial review, an applicant must demonstrate that their rights or interests were affected at the time the decision was made. If an organisation was incorporated years after a land-use decision was finalised, it cannot retrospectively claim an interest to protect or assert that its rights were infringed by that original decision; (iii) The three-month time limit for filing a judicial review application begins from the date the decision was made or first communicated. In environmental and land matters, knowledge of a decision can be inferred from, among other factors , massive physical development on the land. Parties cannot bypass limitation periods by claiming ignorance of a formal Gazette if the physical reality of the land's alienation was notorious and observable for decades.
Damien Thaman Divean & Anor v. Majlis Eksekutif Negeri Selangor Darul Ehsan (EXCO) & Ors [2026] 5 CLJ 1 [FC]

• SUBJECT
• CORAM
• COUNSEL

Where a depositor provides evidence of fund transfers into a financial institution's accounts, documents recording the receipt and internal tracking of those funds are inherently relevant and discoverable. Given the heavily regulated nature of the financial services industry, it is a legal and regulatory necessity for institutions to identify depositors and account for funds received. Consequently, discovery of such documents is essential for the saving of time and costs under O. 24 r. 8 of the Rules of Court 2012.
PG Doraisamy P Gopal v. Amlnvestment Bank Bhd & Other Appeals [2026] 5 CLJ 55 [CA]

• SUBJECT
• CORAM
• COUNSEL

Where a contract contains a termination clause expressed to operate 'notwithstanding anything contained herein', such a clause must be interpreted according to its plain and ordinary meaning as an independent right of termination. A termination for convenience clause, providing for notice without requiring reasons, operates independently of termination for default clauses. The presence of one does not restrict the exercise of the other unless explicitly stated.
UEM Land Bhd v. Mohd Khalid Mohd Noor [2026] 5 CLJ 79 [CA]

• SUBJECT
• CORAM
• COUNSEL

(i) The legislative purpose of s. 30 of the Construction Industry Payment and Adjudication Act 2012 ('CIPAA') is to protect subcontractors from the cascading effects of the main contractor's default. The section provides a statutory mechanism for subcontractors to obtain direct payment from the principal (employer) when the main contractor fails to pay an adjudicated amount; (ii) A retention sum is a 'present and existing debt', not a contingent debt. The obligation to pay the retention sum exists currently; only the timing of payment is deferred until a future event. Because the obligation to pay exists, the sum is 'payable' within the meaning of s. 30(5) of the CIPAA
BP Engineering Sdn Bhd v. Jabatan Kerja Raya Malaysia & Ors [2026] 5 CLJ 94 [HC]

• SUBJECT
• CORAM
• COUNSEL

Under s. 506 of the Penal Code, imprisonment is established as the primary sentencing option for criminal intimidation, reflecting the Legislature's view of the offence as a serious threat to public order. While the court retains the discretion to impose a fine, imprisonment, or both, the statutory language prioritises custodial terms, particularly in cases involving threats of death or grievous harm. Any judicial decision to deviate from this 'imprisonment-first' principle by imposing a fine alone must be supported by clear and cogent reasons to justify why a non-custodial sentence is sufficient.
PP v. Imang Swak [2026] 5 CLJ 121 [HC]

• SUBJECT
• CORAM
• COUNSEL

A contractor's obligation to rectify defects persists post-completion, regardless of whether such defects are latent or apparent, as corrective works performed to remedy non-conformity are executed pursuant to a subsisting contractual duty and cannot be classified as voluntary or extra-contractual acts. This obligation to make good any defect or deviation is continuing, mandatory, and unconditional, leaving no room for contractual ambiguity. Consequently, a claim for quantum meruit or restitutionary relief is unsustainable where the works are corrective in nature, because the equitable basis for such relief requires 'clean hands'; a party cannot invoke equity to profit from its own non-performance or seek restitution for remedial works necessitated by its own breach of contract.
Regal Elite Letrik Sdn Bhd v. Country Garden Danga Bay Sdn Bhd; Iskandar Waterfront Sdn Bhd & Ors (Third Parties) [2026] 5 CLJ 136 [HC]

• SUBJECT
• CORAM
• COUNSEL

(i) Order 28 r. 8 of the Rules of Court 2012 (‘ROC’) does not apply automatically to interpleader proceedings. Order 17 of the ROC is a self-contained code, with r. 3(1) prescribing an originating summons as the sole mode of commencement, unless the interpleader arises in a pending action. Order 17 makes no provision for conversion to a writ. Applying O. 28 r. 8 to O. 17 would therefore amount to impermissible judicial legislation; (ii) An interpleader is a neutral, non-adversarial process to protect a stakeholder facing competing claims. Its purpose is limited to determining entitlement to the disputed sum or property and does not extend to broader contractual, statutory, or constitutional disputes.
Shell MDS (Malaysia) Sdn Bhd v. Petroliam Nasional Bhd (Petronas) & Ors [2026] 5 CLJ 162 [HC]

• SUBJECT
• CORAM
• COUNSEL

(i) A breach of the Motor Vehicles (Construction and Use) Rules 1959, or the use of a vehicle in an unlawful manner does not automatically discharge an insurer's statutory liability; (ii) The phrase 'by reason of or in pursuance of a contract of employment', under s. 91(1)(bb) of the Road Transport Act 1987 is not restricted to a contract of employment with the insured. Provided a person is on the vehicle due to a contract of employment, even if with a third party, they fall within the statutory exception. The insurer remains liable for bodily injuries sustained by such a person, as they are considered a passenger protected under the compulsory insurance scheme.
Zurich General Insurance Malaysia Bhd v. Ng Kok Soon & Ors [2026] 5 CLJ 171 [HC]

• SUBJECT
• CORAM
• COUNSEL

ARTICLES

CLJ Article(s)

1. WHETHER AGREEMENT ON THE CONTENTS OF A DOCUMENT IMPORTS AGREEMENT AS TO THEIR TRUTH: AN ANALYSIS OF CONFLICTING MALAYSIAN APPELLATE DECISIONS ^{[Read excerpt]}
   by Ranjan N Chandran* [2026] 5 CLJ(A) i

[2026] 5 CLJ(A) i

MALAYSIA

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WHETHER AGREEMENT ON THE CONTENTS OF A DOCUMENT IMPORTS AGREEMENT AS TO THEIR TRUTH:
AN ANALYSIS OF CONFLICTING MALAYSIAN APPELLATE DECISIONS

by
Ranjan N Chandran*

Introduction

The Rules of Court 2012 ('ROC') was introduced with the objective of streamlining civil litigation and expediting the disposal of cases.

Central to this procedural framework is the categorisation of documents into agreed bundles for trial management.

However, differing views have arisen over a critical question: whether an agreement on the contents of documents included in Part A of a common bundle also constitutes an agreement as to the truth of those contents.

This divergence has created uncertainty for litigants and practitioners alike. Given the centrality of documentary evidence in civil litigation, clarification of this issue is of pressing importance.

It is therefore necessary to examine the source of the problem, particularly the rule provision governing the conduct of litigation before the High Courts of Malaya, Sabah and Sarawak, as well as the division of jurisdiction between them.

Order 34 r. 2 of the ROC sets out the categorisation of documents that will be relied upon or referred to during the course of a trial. These documents are to be compiled into a bundle of documents, in accordance with directions given by the court at the pre-trial case management stage.

. . .

* Consultant, Hakem Arabi & Associates

LNS Article(s)

1. ALGORITHMIC EMPLOYMENT DECISIONS AND THE LIMITS OF MALAYSIAN LAW: IMPLIED TRUST, LEGITIMATE EXPECTATION, AND THE BURDEN OF JUST CAUSE IN THE AGE OF AI-ASSISTED HR ^{[Read excerpt]}
   by Dr Tahirah Manesah binti Abu Bakar* [2026] CLJU(A) l

[2026] CLJU(A) l

MALAYSIA

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ALGORITHMIC EMPLOYMENT DECISIONS AND THE LIMITS OF MALAYSIAN LAW:
IMPLIED TRUST, LEGITIMATE EXPECTATION, AND THE BURDEN OF JUST CAUSE IN THE AGE OF AI-ASSISTED HR

by
Dr Tahirah Manesah binti Abu Bakar*

INTRODUCTION

Artificial intelligence ('AI') has entered the Malaysian workplace. Performance management systems generate scores without human deliberation. Redundancy selection tools rank employees against weighted criteria drawn from datasets whose composition neither the employee nor the employer's own HR Department can fully explain. Predictive attrition models flag workers identified as flight risks before they have formed any conscious intention of leaving.^[1]

The Industrial Relations Act 1967 and the body of Industrial Court jurisprudence built upon it were designed for a world in which consequential employment decisions were made by identifiable human beings whose reasoning could be tested through cross-examination and documentary disclosure. When the decision-maker is an algorithm, that machinery struggles. The employer can produce the output, but it cannot always produce the reasoning. Yet, it is the reasoning that the law requires.

This article examines three established doctrinal frameworks in Malaysian employment law, each independently capable of generating significant legal exposure where AI-assisted HR decisions are deployed without adequate transparency and explainability safeguards. The first is the implied term of mutual trust and confidence. The second is the doctrine of legitimate expectation, applied in the employment context. The third is the employer's burden of demonstrating just cause and excuse. The article argues that their convergence creates a compounding legal exposure that existing legislation does not address.

. . .

*PhD (Business Administration), Asia e University. Industrial Relations Consultant; former Industrial Court Panel Member (2019–2022); External Advisor, City University Malaysia and University of Malaya (UMCCED).

2. AI-ASSISTED SENTENCING IN MALAYSIAN COURTS: A HUMAN RIGHTS-BASED ANALYSIS ^{[Read excerpt]}
   by Dr Haezreena Begum binti Abdul Hamid* [2026] CLJU(A) li

[2026] CLJU(A) li

MALAYSIA

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AI-ASSISTED SENTENCING IN MALAYSIAN COURTS: A HUMAN RIGHTS-BASED ANALYSIS

by
Dr Haezreena Begum binti Abdul Hamid*

INTRODUCTION

The deployment of artificial intelligence ('AI') within Malaysia's judicial system has expanded gradually and with evident caution, reflecting an awareness of the significant human rights implications that arise when technology is introduced into adjudicative processes. From a human rights perspective, the central issue is not whether AI can enhance administrative efficiency or consistency, but whether its integration preserves core legal guarantees, including judicial independence, procedural fairness, transparency, and equality before the law.

To date, the use of AI in Malaysia's courts has been confined primarily to limited and controlled functions, most notably within the courts of Sabah and Sarawak. One of the earliest and most prominent initiatives is the Artificial Intelligence in Court Sentencing ('AiCOS') system, launched in early 2020 by Sarawak Information Systems Sdn Bhd ('SAINS'). AiCOS functions as a non-binding sentencing recommendation tool designed to promote consistency in sentencing outcomes, reduce case backlogs, and expedite judicial processes. Crucially, it is framed as an assistive mechanism rather than a determinative one, signalling an explicit effort to safeguard judicial discretion and independence.

Against this backdrop, this paper examines the introduction of AI into sentencing practices in Malaysia through a human rights-based framework. It interrogates the increasingly influential claim that algorithmic tools can neutralise bias and enhance objectivity in sentencing decisions. While sentencing is often portrayed as particularly amenable to automation due to its reliance on established legal principles and structured discretion, this paper argues that the incorporation of AI into judicial decision-making raises fundamental concerns relating to the right to a fair trial, equality before the law, transparency, and public confidence in the administration of justice.

. . .

*Faculty of Law, Universiti Malaya, Kuala Lumpur.

3. 'THE EFFECT OF ILLEGALITY ON PRIVATE LAW CLAIMS'
   LECTURE GIVEN AT THE 35TH SINGAPORE LAW REVIEW^{+ [Read excerpt]}
   by Justice Goh Yihan* [2026] CLJU(A) lii

[2026] CLJU(A) lii

SINGAPORE

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'THE EFFECT OF ILLEGALITY ON PRIVATE LAW CLAIMS'

LECTURE GIVEN AT THE 35TH SINGAPORE LAW REVIEW⁺

by
Justice Goh Yihan*

Introduction

1. Thank you for the kind introduction and the immense privilege of delivering the Singapore Law Review Lecture 2024. I return to this venue with fond memories of my time as an academic at NUS Law exactly a decade ago. Indeed, it was in 2014 that I delivered one of my last lectures here.

2. The topic of my lecture today is "The Effect of Illegality on Private Law Claims". When I suggested it, I was mildly excited by the prospect of going through this notoriously difficult area of law. When I started preparing for this lecture, I began to regret the prospect of going through this very difficult area of law. Indeed, it is challenging to reconcile the various cases, and this is understandable since the entire law is premised upon the rather nebulous concept of public policy.^[1] Be that as it may, I will try to provide some food for thought on this topic this evening.

3. To begin with – and this will disappoint Dean Andrew Simester, who advised me as a junior academic that every good paper should have just one core question – I will go through a number of questions occasioned by the illegality defence without necessarily providing a definitive answer. I know you will understand that it may not be appropriate for me to advocate for a particular point of view, especially if that point of view has not been judicially determined in Singapore. I hope nonetheless that you will leave today's lecture with a better understanding of this area of law.

. . .

+Reproduced with permission of the Singapore Courts: https://www.judiciary.gov.sg/news-and-resources/news/news-details/justice-goh-yihan--lecture-at-35th-singapore-law-review-annual-lecture.

*Judge of the High Court, Supreme Court of Singapore. This paper was delivered at the Singapore Law Review Lecture held at the Faculty of Law, National University of Singapore on 19 January 2024. I would like to thank my law clerk, Mr Adam Goh, for all his excellent assistance in the preparation of this lecture. All views expressed are my own and do not represent those of the Supreme Court of Singapore.

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