PP v. KOK WAH KUAN
   
FEDERAL COURT, PUTRAJAYA
AHMAD FAIRUZ, CJ;   ABDUL HAMID MOHAMAD, PCA;   ALAUDDIN MOHD SHERIFF, CJ (MALAYA);   RICHARD MALANJUM, CJ (SABAH & SARAWAK);   ZAKI TUN AZMI, FCJ
CRIMINAL APPEAL NO: 05-46-2007 (W)
[2007] 6 CLJ 341
CONSTITUTIONAL LAW: Federal Constitution – Separation of powers, doctrine of – Whether integral part of Constitution – Section 97(2) of Child Act 2001 – Child convict to be held at pleasure of Yang di-Pertuan Agong – Whether consigning judicial power to the Executive – Whether contravening doctrine of separation of powers – Whether unconstitutional – Federal Constitution, arts. 39, 40, 121(1)Child Act 2001, s. 97(2)Penal Code, s. 302

CONSTITUTIONAL LAW: Federal Constitution – Article 121(1), amendment to – Effect and scope – Whether article sole repository of judicial role of courts – Jurisdiction and powers of courts – Whether only as conferred by federal law – Whether courts servile agents of federal law – Federal Constitution, arts. 39, 40, 121(1)

CRIMINAL PROCEDURE: Sentence – Murder – Child convict – Alternative sentence under Child Act 2001 – Child ordered to be held in custody during pleasure of Yang di-Pertuan Agong – Whether order lawful – Child Act 2001, s. 97(2)Penal Code, s. 302

WORDS & PHRASES: “The High Courts and inferior courts shall have jurisdiction and powers as may be conferred by or under federal law” – Federal Constitution, art. 121(1) – Meaning and import – Whether courts reduced to servile agents of Acts of Parliament

This was an appeal by the Public Prosecutor against the decision of the Court of Appeal ruling that notwithstanding that the learned High Court judge was correct in convicting the 12-year old respondent for murder under s. 302 Penal Code, he was nonetheless wrong in ordering the child convict to be detained during the pleasure of the Yang di-Pertuan Agong pursuant to s. 97(2) of the Child Act 2001 (‘the Act’ ).

It was the view of the Court of Appeal, in so faulting the learned judge, that s. 97(2) of the Act, upon a proper reading of the Federal Constitution, including arts. 39, 40 and 121(1) therein, was unconstitutional – for having consigned the Court’s judicial power to determine the measure of sentence to be served by the respondent to the Executive and contravened the doctrine of separation of powers housed in the Constitution. The Public Prosecutor retorted otherwise, whereof the learned justices of the apex court, on account of the constitutional deliberations undertaken by the Court of Appeal, deemed it wise and proper to re-visit the relevant constitutional provisions, before pronouncing their opinion thereon and answering the question of whether the learned High Court judge was wrong in making the order aforesaid, or conversely whether the Court of Appeal was justified in releasing the respondent forthwith from custody.

Held (allowing appeal and restoring order of High Court)

Per Abdul Hamid Mohamad PCA (delivering the judgment of the court):

(1) Following the amendment to art. 121(1) of the Constitution by Act A704, there was no longer a specific provision declaring that the “judicial power of the Federation”, as the term was understood prior to the amendment, is vested in the two High Courts. This prompted us to look at the federal law if we want to know about the jurisdiction and powers of the two High Courts. In short, to what extent such “judicial powers” are vested in the two courts would depend on what federal law provides, not on the interpretation of the term “judicial power” as prior to the amendment. This is the difference and the effect of the amendment. Thus, to say that the amendment has no effect does not make sense. (para 11)

(2) In the instant appeal, even the Court of Appeal’s judgment does not, indeed cannot, show which provision of the Constitution s. 97 is inconsistent with. Instead, the court held that that section violated the doctrine of the separation of powers, which, in its view, was an integral part of the Constitution. (para 13)

(3) The doctrine of separation of powers is a political doctrine under which the legislative, executive and judicial branches of government are kept distinct, to prevent abuse of power. However, Malaysia has its own model. Whilst our Constitution does have the features of the separation of powers, it also contains features which do not strictly comply with the doctrine. To what extent the doctrine applies, therefore, depends on the provisions of the Constitution. (paras 14 & 17)

(3a) In determining the constitutionality or otherwise of a statute under our Constitution, it is the provision of the Constitution that matters, not a political theory expounded by some thinkers. The doctrine of separation of powers is not a provision of the Malaysian Constitution. Thus, a provision of the Constitution cannot be struck out on the ground that it contravenes the doctrine. Similarly, no provision of the law may be struck out as unconstitutional if it is not inconsistent with the Constitution, even though it may be inconsistent with the doctrine. (paras 17 & 18)

(4) Federal law provides that the sentence of death shall not be pronounced or recorded against a person who was a child at the time of the commission of the offence. That is the limit of judicial power of the court imposed by the law. It further provides that, instead, the child shall be ordered to be detained in a prison during the pleasure of the Yang di-Pertuan Agong or the Ruler or the Yang di-Pertua Negeri, depending on where the offence was committed. That is the sentencing power given by federal law to the court as provided by the Constitution. (para 22)

Bahasa Malaysia Translation Of Headnotes

Ini adalah rayuan oleh Pendakwa Raya terhadap keputusan Mahkamah Rayuan yang memutuskan bahawa walaupun yang arif hakim betul dalam mensabitkan responden, yang berumur 12 tahun, atas kesalahan bunuh di bawah s. 302 Kanun Keseksaan, beliau khilaf apabila memerintahkan pesalah kanak-kanak tersebut ditahan menurut perkenan Yang di-Pertuan Agong di bawah s. 97(2) Akta Kanak-Kanak 2001 (‘Akta’).

Adalah menjadi pandangan Mahkamah Rayuan, dalam menyalahkan yang arif hakim, bahawa s. 97(2) Akta adalah tidak berperlembagaan atas pembacaan wajar Perlembagaan Persekutuan, termasuk fasal-fasal 39, 40 dan 121(1)nya – kerana telah menyerahkan kuasa kehakiman Mahkamah untuk menentukan had hukuman yang perlu dijalani oleh responden kepada pihak Eksekutif, sekaligus menyanggahi doktrin perasingan kuasa yang termaktub di dalam Perlembagaan. Pendakwa Raya berhujah sebaliknya, dan berikutnya, yang arif hakim-hakim mahkamah tertinggi, dengan mengambilkira perbincangan-perbincangan perlembagaan oleh Mahkamah Rayuan, merasakan patut dan wajar untuk meneliti semula peruntukan-peruntukan perlembagaan berkenaan, sebelum mengambil pendirian mereka dan seterusnya menjawab persoalan sama ada yang arif hakim Mahkamah Tinggi khilaf dalam membuat perintah di atas, atau sebaliknya sama ada Mahkamah Rayuan betul apabila membebaskan responden dengan serta merta dari tahanan.

Diputuskan (membenarkan rayuan dan mengekalkan perintah Mahkamah Tinggi)

Oleh Abdul Hamid Mohamad PMR (menyampaikan penghakiman mahkamah):

(1) Berikutan pindaan kepada fasal 121(1) Perlembagaan oleh Akta A704, tidak ada lagi peruntukan spesifik yang mengisytiharkan bahawa “kuasa kehakiman Persekutuan”, sepertimana ungkapan itu difahami sebelum pindaan, adalah terletakhak kepada kedua-dua Mahkamah Tinggi. Ini memaksa kita untuk melihat kepada undang-undang persekutuan jika kita ingin tahu mengenai kuasa-kuasa dan bidangkuasa kedua-dua Mahkamah Tinggi. Apapun, setakat manakah “kuasa kehakiman” sedemikian terletakhak kepada kedua-dua mahkamah bergantung kepada apa yang diperuntukkan oleh undang-undang persekutuan, bukannya kepada pentafsiran terma “kuasa kehakiman” seperti yang berlaku sebelum pindaan. Inilah perbezaan dan kesan pindaan tersebut. Oleh itu, adalah tidak masuk akal untuk mengatakan bahawa pindaan tidak memberi apa-apa kesan.

(2) Dalam rayuan semasa, penghakiman Mahkamah Rayuan sendiri tidak, malah tidak mampu, menunjukkan dengan bahagian peruntukan Perlembagaan yang manakah s. 97 didapati tidak konsisten. Mahkamah tersebut sebaliknya memutuskan bahawa seksyen tersebut telah melanggari doktrin perasingan kuasa yang, menurut pandangannya, merupakan sebahagian dari Perlembagaan.

(3) Perasingan kuasa adalah satu doktrin politik di mana cabang perundangan, eksekutif dan kehakiman kerajaan diasingkan, bagi mengelakkan salahguna kuasa. Malaysia bagaimanapun mempunyai modelnya yang tersendiri. Sementara Perlembagaan kita mengandungi beberapa ciri perasingan kuasa, ia juga mempunyai ciri-ciri yang tidak menepati secara ketat ciri-ciri doktrin tersebut. Maka itu, setakat manakah doktrin ini terpakai akan bergantung kepada peruntukan-peruntukan Perlembagaan.

(3a) Yang penting dalam menentukan keperlembagaan atau tidaknya sesuatu statut di bawah Perlembagaan adalah peruntukan Perlembagaan sendiri, bukannya teori politik yang dilaungkan oleh beberapa pemikir-pemikir. Doktrin perasingan kuasa bukan merupakan sebahagian dari Perlembagaan Malaysia. Oleh itu, satu peruntukan Perlembagaan tidak boleh dibatalkan atas alasan bahawa ia melanggar doktrin. Begitu juga, mana-mana peruntukan undang-undang tidak boleh dibatalkan atas alasan tidak perlembagaan jika ia konsisten dengan Perlembagaan, walaupun ia mungkin tidak konsisten dengan doktrin.

(4) Undang-undang persekutuan memperuntukkan bahawa hukuman mati tidak boleh diisytiharkan terhadap seseorang yang masih kanak-kanak semasa kesalahan dilakukan. Itu adalah had kuasa kehakiman mahkamah yang ditetapkan oleh undang-undang. Ia juga memperuntukkan bahawa kanak-kanak tersebut sebaliknya hendaklah di tahan di penjara selagi diperkenan Yang di-Pertuan Agong atau Raja Pemerintah atau Yang di-Pertua Negeri, bergantung kepada di mana kesalahan itu dilakukan. Inilah kuasa menghukum yang diberikan oleh undang-undang persekutuan kepada mahkamah seperti yang diperuntukkan oleh Perlembagaan.

Case(s) referred to:

Chiu Wing Wa & Ors v. Ong Beng Cheng [1994] 1 CLJ 313 SC (refd)

Dato’ Yap Peng v. PP [1987] 2 MLJ 31 (refd)

Dewan Undangan Negeri Kelantan & Anor v. Nordin Salleh & Anor [1992] 2 CLJ 1125; [1992] 1 CLJ (Rep) 72 SC (refd)

Faridah Begum v. Sultan Ahmad Shah [1996] 2 CLJ 159 (refd)

Hajjah Halimatussaadiah v. Public Services Commission [1992] 1 CLJ 413; [1992] 2 CLJ (Rep) 467 HC (refd)

Kesultanan Pahang v. Sathask Realty Sdn Bhd [1998] 2 CLJ 559 FC (refd)

Loh Kooi Choon v. Government of Malaysia [1975] 1 LNS 90 FC (refd)

Mamat Daud & Ors v. Government of Malaysia & Anor [1988] 1 CLJ 11; [1988] 1 CLJ (Rep) 197 SC (refd)

Ngan Tuck Seng v. Ngan Yin Groundnut Factory Sdn Bhd [1999] 3 CLJ 26 HC (refd)

Ooi Ah Phua v. Officer-In-Charge Criminal Investigation, Kedah/Perlis [1975] 1 LNS 117 (refd)

PP v. Dato’ Yap Peng [1987] 1 CLJ 550; [1987] CLJ (Rep) 284 SC (refd)

PP v. Jafa Daud [1981] 1 LNS 28 (refd)

PP v. Sihabduin Hj Salleh & Anor [1981] CLJ 39; [1981] CLJ (Rep) 82 FC (refd)

R v. Lord Chancellor, ex p Witham [1998] QB 575 (refd)

R Rama Chandran v. Industrial Court of Malaysia & Anor [1997] 1 CLJ 147 FC (refd)

Standard Chartered Bank and Others v. Directorate of Enforcement and Others [2005] AIR SC 2622 (refd)

Teoh Eng Huat v. Kadhi Pasir Mas [1990] 2 CLJ 11; [1990] 1 CLJ (Rep) 277 SC (refd)

Legislation referred to:

Child Act 2001, s. 97(2)

Criminal Procedure Code, ss. 183, 418A

Federal Constitution, arts. 4(1), 5(1), (3), 11, 32(1), 39, 40, 41, 44, 45(1), 121(1)(b), 121(1B), (2), 128(1), (2), 160(2), 162(6)

Penal Code, s. 302

Prison Act 1995, ss. 44, 50, 67

Counsel:

For the appellant – Tan Sri Abdul Gani Patail; Public Prosecutor/Att. General, Malaysia (Yacub Sam DPP with him)

For the respondent – Karpal Singh (Ram Karpal Singh with him); M/s Karpal Singh & Co
Reported by WA Sharif

Case History:

Court Of Appeal : [2007] 4 CLJ 454

High Court : [2007] 6 CLJ 367

 

 

JUDGMENT

Abdul Hamid Mohamad PCA:

[1] The respondent who was 12 years and 9 months old at the time of the commission of the offence was charged in the High Court for the offence of murder punishable under s. 302 of the Penal Code. He was convicted and ordered to be detained during the pleasure of the Yang di-Pertuan Agong pursuant to s. 97(2) of the Child Act 2001 (Act 611) (“the Child Act”). He appealed to the Court of Appeal. The Court of Appeal upheld the conviction but set aside the sentence imposed on him and released him from custody on the sole ground that s. 97(2) of the Child Act was unconstitutional. The Public Prosecutor appealed to this court.

[2] On what ground did the Court of Appeal hold s. 97(2) of the Child Act to be unconstitutional?

[3] From the judgment of the Court of Appeal, it can be seen that that court had arrived at that conclusion on the following premises:

(i) The doctrine of separation of powers is an integral part of the Constitution;

(ii) Judicial power of the Federation vests in the courts;

(iii) By s. 97(2) of the Child Act, Parliament had consigned the power to determine the measure of the sentence that was to be served to the Yang di-Pertuan Agong in the case of an offence committed in the Federal Territories, or to the Ruler or the Yang di-Pertua Negeri, if the offence is committed in the State.

(iv) By virtue of art. 39 of the Constitution, the executive authority of the Federation vests in the Yang di-Pertuan Agong who, in accordance with art. 40 of the Constitution, must act in accordance with the advice given by the Cabinet or particular minister of the Cabinet.

(v) Therefore, s. 97(2) of the Child Act contravenes the doctrine of separation of powers housed in the Constitution by consigning to the Executive the judicial power to determine the measure of the sentence to be served by the appellant.

[4] Before going any further I will first reproduce the relevant provisions of the Constitution and the Child Act. Article 121 of the Constitution provides:

121. (1) There shall be two High Courts of co-ordinate jurisdiction and status, namely:

(a) one in the States of Malaya… and;

(b) one in the States of Sabah and Sarawak… and the High Courts… shall have such jurisdiction and powers as may be conferred by or under federal law. (emphasis added)

[5]Article 4(1) of the Constitution provides:

4. (1) This Constitution is the supreme law of the Federation and any law passed after Merdeka Day which is inconsistent with this Constitution shall, to the extent of the inconsistency, be void.

[6]Section 97 of the Child Act provides:

97. (1) A sentence of death shall not be pronounced or recorded against a person convicted of an offence if it appears to the Court that at the time when the offence was committed he was a child.

(2) In lieu of a sentence of death, the Court shall order a person convicted of an offence to be detained in a prison during the pleasure of:

(a) the Yang di-Pertuan Agong if the offence was committed in the Federal Territory of Kuala Lumpur or the Federal Territory of Labuan; or

(b) the Ruler or the Yang di-Pertua Negeri, if the offence was committed in the State.

(3) If the Court makes an order under subsection (2), that person shall, notwithstanding anything in this Act:

(a) be liable to be detained in such prison and under such conditions as the Yang di-Pertuan Agong or the Ruler or the Yang di-Pertua Negeri may direct; and

(b) while so detained, be deemed to be in lawful custody.

(4) If a person is ordered to be detained at a prison under subsection (2), the Board of Visiting Justices for that prison:

(a) shall review that person’s case at least once a year; and

(b) may recommend to the Yang di-Pertuan Agong or the Ruler or the Yang di-Pertua Negeri on the early release of further detention of that person,

and the Yang di-Pertuan Agong or the Ruler or the Yang di-Pertua Negeri may thereupon order him to be released or further detained, as the case may be.

[7] The Court of Appeal posed two questions for it to answer. They are, first, whether the doctrine of separation of powers is an integral part of the Constitution and, secondly, whether s. 97 of the Child Act “in pith and substance violates the doctrine.” The Court, answered the two questions in the affirmative. On the first question, the court held that the amendment to art. 121 of the Constitution by Act A 704 did not have the effect of divesting the courts of the judicial power of the Federation. The court gave two reasons:

First, the amending Act did nothing to vest the judicial power in some arm of the Federation other than the courts. Neither did it provide for the sharing of the judicial power with the Executive or Parliament or both those arms of government.

Second, the marginal note to art. 121 was not amended. This clearly expresses the intention of Parliament not to divest ordinary courts of judicial power of the Federation and to transfer it to or share it with either the Executive or the Legislature.

[8] Let us take a close look at the provision of art. 121 of the Constitution before and after the amendment.

[9] Prior to the amendment, art. 121(1) of the Constitution reads: “… the judicial power of the Federation shall be vested in the two High Courts… and the High Courts… shall have such jurisdiction and powers as may be conferred by or under federal law.

[10] There was thus a definitive declaration that the judicial power of the Federation shall be vested in the two High Courts. So, if a question is asked “Was the judicial power of the Federation vested in the two High Courts?” The answer has to be “yes” because that was what the Constitution provided. Whatever the words “judicial power” mean is a matter of interpretation. Having made the declaration in general terms, the provision went of to say “and the High Courts… shall have jurisdiction and powers as may be conferred by or under federal law.” In other words, if we want to know what are the specific jurisdiction and powers of the two High Courts, we will have to look at the federal law.

[11] After the amendment, there is no longer a specific provision declaring that the judicial power of the Federation shall be vested in the two High Courts. What it means is that there is no longer a declaration that “judicial power of the Federation” as the term was understood prior to the amendment vests in the two High Courts. If we want to know the jurisdiction and powers of the two High Courts we will have to look at the federal law. If we want to call those powers “judicial powers”, we are perfectly entitled to. But, to what extent such “judicial powers” are vested in the two High Courts depend on what federal law provides, not on the interpretation of the term “judicial power” as prior to the amendment. That is the difference and that is the effect of the amendment. Thus, to say that the amendment has no effect does not make sense. There must be. The only question is to what extent?

[12] In Public Prosecutor v. Dato’ Yap Peng [1987] 1 CLJ 550; [1987] CLJ (Rep) 284, s. 418A of the Criminal Procedure Code came into question as it was argued that it infringed art. 121(1) and 5(1) of the Federal Constitution. Zakaria Yatim J (as he then was) held that s. 418A of the Criminal Procedure was unconstitutional as it was inconsistent with art. 121(1) of the Constitution. Appeal to the Supreme Court was dismissed by a majority of 3:2. That case was decided, not on the ground that it was inconsistent with the doctrine of separation of powers. It was decided on the ground that it was inconsistent with the term “judicial power” of the court then provided by art. 121(1) of the Constitution. In other words s. 418A was inconsistent with the specific provision of the Constitution that provides “… the judicial power of the Federation shall be vested in two High Courts…” The inconsistency then attracts art. 4(1) of the Constitution which declares such a law, to the extent of the inconsistency, be void.

[13] What about the instant appeal? In the instant appeal, even the Court of Appeal’s judgment does not, indeed cannot, show which provision of the Constitution s. 97 is inconsistent with. Instead the court held that that section violated the doctrine of the separation of powers, which, in its view was an integral part of the Constitution.

[14] What is this doctrine of separation of powers? Separation of powers is a term coined by French political enlightenment thinker Baron de Montesquieu. It is a political doctrine under which the legislative, executive and judicial branches of government are kept distinct, to prevent abuse of power. The principle traces its origins as far back as Aristotle’s time. During the Age of Enlightenment, several philosophers, such as John Locke and James Harrington, advocated the principle in their writings, whereas others such as Thomas Hobbes strongly opposed it. Montesquieu was one of the foremost supporters of the doctrine. His writings considerably influenced the opinions of the framers of Constitution of the United States. There, it is widely known as “checks and balances”. Under the Westminster System this separation does not fully exist. The three branches exist but Ministers, for example, are both executives and legislators. Until recently, the Lord Chancellor was a member of all the three branches – see generally ECS Wade and A W Bradley: Constitutional and Administrative Law 10th edn; Wikipedia (Encyclopedia).

[15] In P. Ramanatha Aiyar’s Advance Law Lexicon, vol. 4, we find the following passage:

It is extraordinarily difficult to define precisely each particular power. – George Whitecross Paton, A Textbook of Jurisprudence 330 (G.W. Paton & David P. Derham eds., 4th ed. 1972).

A political system that separates executive, legislative, and judicial powers of government into separate branches. Some systems combine two, or even all three, powers into single institutions. In the United States, many administrative agencies actually exercise at least first level judicial powers, and many administrative agencies also exercise what amount to legislative powers in promulgating detailed legal regulations: In other systems, the absence of a separation of powers, particularly between the executive and the legislative, is more explicit… as in the Westminster-style parliamentary system.

[16] Malaysia, like the United States has a written Constitution that spells out the functions of the three branches. At the same time it follows the Westminster model and has its own peculiarities. The Yang di-Pertuan Agong is the Supreme Head of the Federation (art. 32(1)). The executive authority of the Federation is vested in the Yang di-Pertuan Agong (art. 39). He is the Supreme Commander of the armed forces of the Federation (art. 41). Parliament consists of the Yang di-Pertuan Agong, the Dewan Negara and Dewan Rakyat (art. 44). While members of the Dewan Rakyat are directly elected, members of the Dewan Negara may be elected by the Legislative Assembly of the States or appointed by the Yang di-Pertuan Agong (art. 45(1) and Seventh Schedule). Judges, including the Chief Justice are appointed by the Yang di-Pertuan Agong. Even the principal registry of the High Court of Sabah and Sarawak is determined by the Yang di-Pertuan Agong (art. 121(1)(b)). On top of all that, the Yang di-Pertuan Agong, unlike the British Monarch, is elected by the Conference of Rulers for a fixed period of five years. And so on.

[17] In other words we have our own model. Our Constitution does have the features of the separation of powers and at the same time, it contains features which do not strictly comply with the doctrine. To what extent the doctrine applies depends on the provisions of the Constitution. A provision of the Constitution cannot be struck out on the ground that it contravenes the doctrine. Similarly no provision of the law may be struck out as unconstitutional if it is not inconsistent with the Constitution, even though it may be inconsistent with the doctrine. The doctrine is not a provision of the Malaysian Constitution even though no doubt, it had influenced the framers of the Malaysian Constitution, just like democracy. The Constitution provides for elections, which is a democratic process. That does not make democracy a provision of the Constitution in that where any law is undemocratic it is inconsistent with the Constitution and therefore void.

[18] So, in determining the constitutionality or otherwise of a statute under our Constitution by the court of law, it is the provision of our Constitution that matters, not a political theory by some thinkers. As Raja Azlan Shah FJ (as His Royal Highness then was) quoting Frankfurter J said in Loh Kooi Choon v. Government of Malaysia [1975] 1 LNS 90 FC said: “The ultimate touchstone of constitutionality is the Constitution itself and not any general principle outside it.”

[19] His Lordship further said:

Whatever may be said of other Constitutions, they are ultimately of little assistance to us because our Constitution now stands in its own right and it is in the end the wording of our Constitution itself that is to be interpreted and applied, and this wording “can never be overridden by the extraneous principles of other Constitutions” – see Adegbenro v. Atkintola & Anor [1963] 3 All ER 544, 551. Each country frames its constitution according to its genius and for the good of its own society. We look at other Constitutions to learn from their experiences, and from a desire to see how their progress and well-being is ensured by their fundamental law.

[20] I agree entirely with those observations.

[21] Now that the pre-amendment words are no longer there, they simply cannot be used to determine the validity of a provision of a statute. The extent of the powers of the courts depends on what is provided in the Constitution. In the case of the two High Courts, they “shall have such jurisdiction and powers as may be conferred by or under federal law.” So, we will have to look at the federal law to know the jurisdiction and powers of the courts. (In the case of the Federal Court and the Court of Appeal, part of their jurisdiction is specifically provided in the Constitution itself – see art. 121(1B) and (2) respectively).

[22] So, even if we say that judicial power still vests in the courts, in law, the nature and extent of the power depends on what the Constitution provides, not what some political thinkers think “judicial power” is. Federal law provides that the sentence of death shall not be pronounced or recorded against a person who was a child at the time of the commission of the offence. That is the limit of judicial power of the court imposed by law. It further provides that, instead, the child shall be ordered to be detained in a prison during the pleasure of the Yang di-Pertuan Agong or the Ruler or the Yang Di-Pertua Negeri, depending on where the offence was committed. That is the sentencing power given by federal law to the court as provided by the Constitution. Similarly, in some cases, federal law provides for death sentence, in others, imprisonment and/or fine, some are mandatory and some are discretionary. The legislature provides the sentences, the court imposes it where appropriate.

[23] Going one step further, even where the court imposes a sentence of imprisonment for a fixed term of more than a month, a prisoner is entitled to be granted a remission of his sentence. The Director General of Prisons may cancel any part of the remission if the prisoner commits an offence under s. 50 of the Act. He may restore to the prisoner all or any part of the remission which the prisoner has forfeited during his sentence – s. 44 of the Prison Act 1995 (Act 537) (“the Prison “Act”).

[24]Section 67 of the Prison Act empowers the Minister to publish in the Gazette such regulations, inter alia, providing for the remission of sentences to be allowed to a prisoner. Hence Prisons Regulations 2000 (P.U.(A) 325/2000) is made.

[25] We see here that the Prison Act empowers the Director General of Prisons to cancel and restore the remission which may be argued to amount to meddling with the fixed term of imprisonment passed by the court. Following the argument of the Court of Appeal, this should be unconstitutional too.

[26] Let us take another example. It is common for a statute to make provision for a Minister in charge of an Act of Parliament to make rules or regulations. The Minister is an executive. Rules and Regulations and by-laws, having the effects of law, is within the realm of the legislature to make, not the executive. Yet, I am unable to find any provision in the Constitution giving power to the legislature to make law to give the power to make such by-laws to the executive. So, are the provisions in the statutes giving Ministers power to make by-laws unconstitutional too on the ground that they contravene the doctrine of separation of powers? All these show the absurdity of applying the doctrine as a provision of the Constitution.

[27] All these examples show that the doctrine is not definite and absolute. The extent of its application varies from country to country, depending on how much it is accepted and in what manner it is provided for by the Constitution of a country. Similarly, judgments from other jurisdictions, while they are useful comparisons, should not be treated as if they are binding on our courts. As such, I do not think it is necessary to discuss all those cases from other jurisdictions referred to us.

[28] On these grounds I would allow the appeal, set aside the order of the Court of Appeal and reinstate the order of the High Court.

[29] Ahmad Fairuz Sheikh Halim CJ, Alauddin Mohd. Sheriff CJ (M) and Zaki Azmi FCJ have read this judgment and agreed with it.

Richard Malanjum CJ (Sabah & Sarawak):

[30] This is an appeal by the Public Prosecutor against the decision of the Court of Appeal which upheld the conviction of the respondent but set aside the sentence imposed and released him from custody on the ground that s. 97(2) of the Child Act 2001 (Act 611) was unconstitutional.

[31] I need not summarize the reasons given by the Court of Appeal since it has already been admirably done in the judgment of the learned President of the Court of Appeal.

[32]Section 97 of the Child Act reads:

(1) A sentence of death shall not be pronounced or recorded against a person convicted of an offence if it appears to the Court that at the time when the offence was committed he was a child.

(2) In lieu of a sentence of death, the Court shall order a person convicted of an offence to be detained in a prison during the pleasure of:

(a) the Yang di-Pertuan Agong if the offence was committed in the Federal Territory of Kuala Lumpur or the Federal Territory of Labuan; or

(b) the Ruler or the Yang di-Pertua Negeri, if the offence was committed in the State.

(3) If the Court makes an order under subsection (2), that person shall, notwithstanding anything in this Act:

(a) be liable to be detained in such prison and under such conditions as the Yang di-Pertuan Agong or the Ruler or the Yang di-Pertua Negeri may direct; and

(b) while so detained, be deemed to be in lawful custody.

(4) If a person is ordered to be detained at a prison under subsection (2), the Board of Visiting Justices for that prison:

(a) shall review that person’s case at least once a year; and

(b) may recommend to the Yang di-Pertuan Agong or the Ruler or the Yang di-Pertua Negeri on the early release or further detention of that person, and the Yang di-Pertuan Agong or the Ruler or the Yang di-Pertua Negeri may thereupon order him to be released or further detained, as the case may be.

[33] On plain reading of subsection (2) of s. 97 it is clear that it empowers the court, after convicting a person who was a child at the time of commission of an offence punishable with death, to make an alternative order instead of imposing a sentence of death. In my view the alternative power to make such an order as provided for by the subsection is no less than the power of the court to impose a sentence or punishment on a child convict albeit in a different form, namely, to the care of the Yang di-Pertuan Agong or to the Ruler or to the Yang di-Pertua Negeri depending on where the offence was committed.

[34] Hence, with respect I do not think there is anything unconstitutional in the scheme since it is still the court that makes the order consequential to its conviction order. In my view when the court makes the order it is carrying out the process of sentencing which is generally understood to mean a process whereby punishment in accordance with established judicial principles is meted out by the court after a conviction order has been made following a full trial or a guilty plea. (See: Public Prosecutor v. Jafa bin Daud [1981] 1 LNS 28; Standard Chartered Bank and Others v. Directorate of Enforcement and Others [2005] AIR SC 2622). Incidentally s. 183 of the Criminal Procedure Code provides: ‘If the accused is convicted, the Court shall pass sentence according to law’.

[35] It might have been a different conclusion if the subsection leaves it entirely to the Yang di-Pertuan Agong or the Ruler or the Yang di-Pertua Negeri as the case may be to deal with a child convict after being convicted by the court.

[36] For the above reason I do not think it is thus necessary for me to deal with those constitutional points highlighted by the Court of Appeal in coming to its decision.

[37] At any rate I am unable to accede to the proposition that with the amendment of art. 121(1) of the Federal Constitution (the amendment) the Courts in Malaysia can only function in accordance with what have been assigned to them by federal laws. Accepting such proposition is contrary to the democratic system of government wherein the courts form the third branch of the government and they function to ensure that there is ‘check and balance’ in the system including the crucial duty to dispense justice according to law for those who come before them.

[38] The amendment which states that “the High Courts and inferior courts shall have such jurisdiction and powers as may be conferred by or under federal law” should by no means be read to mean that the doctrines of separation of powers and independence of the Judiciary are now no more the basic features of our Federal Constitution. I do not think that as a result of the amendment our courts have now become servile agents of a federal Act of Parliament and that the courts are now only to perform mechanically any command or bidding of a federal law.

[39] It must be remembered that the courts, especially the Superior Courts of this country, are a separate and independent pillar of the Federal Constitution and not mere agents of the federal legislature. In the performance of their function they perform a myriad of roles and interpret and enforce a myriad of laws. Article 121(1) is not, and cannot be, the whole and sole repository of the judicial role in this country for the following reasons:

(i) The amendment seeks to limit the jurisdiction and powers of the High Courts and inferior courts to whatever “may be conferred by or under federal law”. The words “federal law” are defined in art. 160(2) as follows:

Federal law means:

(a) any existing law relating to a matter with respect to which Parliament has power to make laws, being a law continued in operation under Part XIII; and

(b) any Act of Parliament;

(ii) The courts cannot obviously be confined to “federal law”. Their role is to be servants of the law as a whole. Law as a whole in this country is defined in art. 160(2) to include “written law, the common law in so far as it is in operation in the Federation or any part thereof, and any custom or usage having the force of law in the Federation or any part thereof”. Further, “written law” is defined in art. 160(2) to include “this Constitution and the Constitution of any State”. It is obvious, therefore, despite the amendment, the courts have to remain involved in the interpretation and enforcement of all laws that operate in this country, including the Federal Constitution, State Constitutions and any other source of law recognized by our legal system. The jurisdiction and powers of the courts cannot be confined to federal law.

(iii) Moreover, the Federal Constitution is superior to federal law. The amendment cannot be said to have taken away the powers of the courts to examine issues of constitutionality. In my view it is not legally possible in a country with a supreme Constitution and with provision for judicial review to prevent the courts from examining constitutional questions. Along with arts. 4(1), 162(6), 128(1) and 128(2), there is the judicial oath in the Sixth Schedule “to preserve, protect and defend (the) Constitution”.

(iv) With respect I do not think the amendment should be read to destroy the courts’ common law powers. In art. 160(2) the term “law” includes “common law”. This means that, despite the amendment, the common law powers of the courts are intact. (See: Ngan Tuck Seng v. Ngan Yin Groundnut Factory Sdn Bhd [1999] 3 CLJ 26). The inherent powers are a separate and distinct source of jurisdiction. They are independent of any enabling statute passed by the legislature. On Malaysia Day when the High Courts came into existence by virtue of art. 121, “they came invested with a reserve fund of powers necessary to fulfill their function as Superior Courts of Malaysia”. Similar sentiments were expressed in R Rama Chandran v. Industrial Court of Malaysia & Anor [1997] 1 CLJ 147.

(v) The amendment in my view cannot prevent the courts from interpreting the law creatively. It is now universally recognized that the role of a judge is not simply to discover what is already existing. The formal law is so full of ambiguities, gaps and conflicts that often a judge has to reach out beyond formal rules to seek a solution to the problem at hand. In a novel situation a judge has to reach out where the light of ‘judicial precedent fades and flicker and extract from there some raw materials with which to fashion a signpost to guide the law’. When rules run out, as they often do, a judge has to rely on principles, doctrines and standards to assist in the decision. When the declared law leads to unjust result or raises issues of public policy or public interest, judges would try to find ways of adding moral colours or public policy so as to complete the picture and do what is just in the circumstances.

(vi) Statutes enacted in one age have to be applied in a time frame of problems of another age. A present time-frame interpretation to a past time framed statute invariably involves a judge having to consider the circumstances of the past to the present. He has to cause the statute to ‘leapfrog’ decades or centuries in order to apply it to the necessities of the times.

(vii) Further, in interpreting constitutional provisions, a judge cannot afford to be too literal. He is justified in giving effect to what is implicit in the basic law and to crystallize what is inherent. His task is creative and not passive. This is necessary to enable the constitutional provisions to be the guardian of people’s rights and the source of their freedom. (See: Dewan Undangan Negeri Kelantan & Anor. v. Nordin bin Salleh & Anor [1992] 1 MLJ 697; Mamat bin Daud & Ors v Government of Malaysia & Anor [1988] 1 CLJ 11; [1988] 1 CLJ (Rep) 197).

(viii) Though there is much truth in the traditionalist assertion that the primary function of the courts is to faithfully interpret and apply laws framed by the elected legislatures, there are, nevertheless, a host of circumstances in which the role of a judge is not just to deliver what is already there. The role is constitutive and creative and goes far beyond a mechanical interpretation of pre-existing law. It extends to direct or indirect law making in the following ways:

1. Formulating original precedents

Life is larger than the law and there is no dearth of novel situations for which there is no enacted rule on point. In such situations a judge relies on the customs and traditions of the land and on standards, doctrines and principles of justice that are embedded in the life of the community to lay down an “original precedent” to assist the court. Admittedly, this fashioning of a new precedent is an infrequent occurrence but its impact on legal growth is considerable;

2. Overruling earlier precedents

Judicial creativity is fully in play when a previous precedent is overruled and thereby denied the authority of law. The overruling may be retrospective or prospective. In either case a new principle is contributed to the legal system and a new direction is forged;

3. Constitutional review

Under arts. 4(1) and 128 of the Federal Constitution, the Superior Courts of this country have the power to review the validity of legislative and executive actions by reference to norms of the basic law. If a legislative measure is found by the court to be unconstitutional, the court has a number of choices. It may condemn the entire statute as illegal or it may apply the doctrine of severability and invalidate only the sections that are unconstitutional and leave the rest of the statute intact. The court may declare the statute null and void ab-initio or only from the date of the ruling. For instance in Dato’ Yap Peng v. PP [1987] 2 MLJ 31 the Supreme Court invalidated s. 418A of the Criminal Procedure Code prospectively.

Questions of constitutionality are fraught with political and policy considerations and decisions thereon can influence the course of legal and political development. For example in Faridah Begum v. Sultan Ahmad Shah [1996] 2 CLJ 159 the majority held that the 1993 constitutional amendment removing the immunities of the Sultans cannot apply to suits brought by foreigners.

Article 162(6) of the Federal Constitution allows judges to modify pre-Merdeka laws in order to make such laws conform to the Constitution. Modification is without doubt a legislative task.

4. Statutory interpretation

In interpreting pre-existing law a judge is not performing a mere robotic function. The interpretive task is, by its very nature, so creative that it is indistinguishable from law-making. “The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law.” (per the American jurist Oliver Wendell Holmes). This is specially so in constitutional law. Even if it is accepted that a judge is bound by the intention of the legislature, it must be noted that such an intention is not always clearly defined. The formal law is so full of ambiguities, gaps and conflicts that often a judge has to reach out beyond the statute to seek a solution to the problem at hand. (See: Chiu Wing Wa & Ors v. Ong Beng Cheng [1994] 1 CLJ 313). A judge may scrutinise preambles, headings and extraneous materials like explanatory statements that accompany Bills and parliamentary debates to help unravel the meaning of statutory formulae. A judge may lean on the interpretation clauses of a statute or on the Interpretation Act 1948/1967 to decipher the intention of the legislature. Or he may fall back on a wealth of rules of statutory construction to aid his task. So numerous and varied are these rules that judicial discretion to rely on one rule or another cannot be predicted. Sometimes a judge’s attention is drawn to foreign legislation and related precedents. He may declare the overseas statute to be in pari materia with local legislation and, therefore, relevant to the case. Alternatively, he may pronounce the local law to be sui generis and therefore to be viewed in the local context without aid of foreign decisions.

When the enacted law leads to undesirable or unjust results, a judge may be persuaded to add moral or public policy shades to the issue in order to do justice.

One could also note, for instance, the “public interest” interpretation of art. 5(3) of the Federal Constitution in Ooi Ah Phua v. Officer-In-Charge Criminal Investigation, Kedah/Perlis [1975] 1 LNS 117 in which the court held that the constitutional right to legal representation can be postponed pending police investigation. In Teoh Eng Huat v. Kadhi Pasir Mas [1990] 2 CLJ 11; [1990] 1 CLJ (Rep) 277 the “wider interest of the nation” prevailed over a minor’s right to religion guaranteed by art. 11. In Hajjah Halimatussaadiah v. Public Services Commission [1992] 1 CLJ 413; [1992] 2 CLJ (Rep) 467 the court subjected a public servant’s claim of a religious right to wear purdah at the workplace to the need to maintain “discipline in the service”.

A judge is not required to view a statute in isolation. He is free to view the entire spectrum of the law in its entirety; to read one statute in the light of related statutes and relevant precedents; to understand law in the background of a wealth of presumptions, principles, doctrines and standards that operate in a democratic society. (See: Kesultanan Pahang v. Sathask Realty Sdn. Bhd. [1998] 2 CLJ 559). He is justified in giving effect to what is implicit in the legal system and to crystallize what is inherent. Such a holistic approach to legal practice is justified because “law” in art. 160(2) is defined broadly to include written law, common law and custom and usage having the force of law.

5. Operation of doctrine of binding precedent

The doctrine of binding judicial precedent exists to promote the principle of justice that like cases should be decided alike. It also seeks to ensure certainty, stability and predictability in the judicial process. There can be no denying that the existence of this doctrine imposes some rigidity in the law and limits judicial choices. But one must not ignore the fact that some flexibility and maneuverability still exist.

Though a superior court is generally reluctant to disregard its own precedents, it does have the power “to refuse to follow” its earlier decisions or to cite them with disapproval. Our Federal Court has, on some occasions, overruled itself. High Court judges occasionally refuse to follow other High Court decisions. An inferior court can maneuver around a binding decision through a host of indirect techniques.

6. Application of doctrine of ultra vires

Whether an agency has acted ultra vires is a complex question of law that permits judicial creativity.

Some statutes declare that discretion is absolute or that a decision is final and conclusive. Some statutory powers are conferred in broad and subjective terms. To statutory formulae of this sort, contrasting judicial responses are possible. The court may interpret them literally and give judicial sanction to absolute powers.

Alternatively the court may read into the enabling law implied limits and constitutional presumptions of a rule of law society. This will restrict the scope of otherwise unlimited powers. (See: R v. Lord Chancellor, Ex p Witham [1998] QB 575). Subjective powers may be viewed objectively. Purposive interpretation may be preferred over literal interpretation. (See: Public Prosecutor v. Sihabduin bin Haji Salleh & Anor [1981] CLJ 39; [1981] CLJ (Rep) 82).

When procedural violations are alleged, a decisive but discretionary issue is whether the procedure was mandatory or directory. Violation of a mandatory procedure results in nullity. Violation of a directory requirement is curable.

7. Import of rules of natural justice

Rules of natural justice are non-statutory standards of procedural fairness. They are not nicely cut up and dried and vary from situation to situation. Judges have wide discretion in determining when they apply and to what extent.

[40] Hence, it is reasonable to emphasize that the amendment should not be construed or viewed as having emasculated the courts in this country to mere automaton and servile agents of a federal Act of Parliament.

[41] Anyway, reverting to this appeal, for the reason I have given earlier on I would therefore allow it and restore the order made by the High Court.

 

METRAMAC CORPORATION SDN BHD v. FAWZIAH HOLDINGS SDN BHD; TAN SRI HALIM SAAD & CHE ABDUL DAIM HJ ZAINUDDIN (INTERVENERS)
   
FEDERAL COURT, PUTRAJAYA
AHMAD FAIRUZ, CJ;   RICHARD MALANJUM, CJ SABAH & SARAWAK;   ABDUL HAMID MOHAMAD, FCJ;   ALAUDDIN MOHD SHERIFF, FCJ;   NIK HASHIM, FCJ
CIVIL APPEALS NOS: 02-19-2006(W) & 02-20-2006 (W)
[2007] 4 CLJ 725
CONTRACT: Breach – Damages – Compensation – Whether compensation unreasonably high and extortionate in nature – Whether a penalty – Whether not genuine estimate of damage likely to be suffered for breach thereof – Whether only entitled to damages to be assessed – Sum named in contract – Intention of parties – Contracts Act 1950 s. 75

CONTRACT: Formation – Prerequisites – Element of certainty – Payment to respondent of income earned by appellant under “future contracts” – Whether ambiguous – Whether lacking consideration – Whether void for uncertainty – Contracts Act 1950 s. 30

CIVIL PROCEDURE: Judgment – Adjudicative independence of judges – Duty to render impartial decisions – Court of Appeal – Making adverse remarks on conduct of third parties and holding appellant beneficiary of such conduct – Whether remarks and findings baseless – Whether turning private claim for breach of contract into public interest litigation – Whether real danger of bias apparent in judgment – Whether judgment to be set aside

CIVIL PROCEDURE: Judgment – Written judgment – Court of Appeal – Expunction of contents of judgment – Applicable test – Whether remarks and findings offensive and unwarranted – Persons rebuked not parties or witnesss to suit – Whether comments unfair – Whether to be expunged

TRUSTS: Express trust – Requirements – Whether satisfied – Allegation that appellant holding money on trust for benefit of respondent – Confusion as to what respondent was claiming under purported trust – Whether void for uncertainty – Whether amounting to illegal reduction of appellant’s share capital – Companies Act 1965 ss. 64, 365(1)

Syarikat Teratai KG Sdn Bhd (‘STKG’) and the respondent in this case shared common shareholders and directors in the persons of Dato’ Fawziah and her mother, Maimoon Bee. In 1986, STKG secured a contract from Dewan Bandaraya Kuala Lumpur (‘DBKL’) to construct certain roads in Kuala Lumpur and to collect toll thereat for a period of 12 years (‘the concession’). STKG signed with DBKL the First Concession Agreement herein, and pursuant thereto a Licence Agreement granting it exclusive rights to erect advertisements and signage within the concession area and period (‘advertising right’). To undertake the concession project, STKG further: (i) signed a Restructure Sale Agreement with the respondent agreeing to sub-license the advertising right to the respondent, and secondly, by cls. 9 & 10 thereof, to sub-contract all contracts and future contracts to the respondent or otherwise to hold any monies, profits and benefits derived therefrom on trust for the benefit of the respondent; and (ii) courted in new shareholders to its fold, raised a capital of RM65 million therefrom and took a loan of RM204 million from the banks.

In 1990 STKG completed the Cheras section of the concession, but was forced by DBKL to suspend toll collections due to public demonstrations against the same. Thereupon STKG sought a RM764-million compensation from DBKL, and even approached the then Finance Minister, Tun Daim Zainuddin for the purpose, but the effort proved futile. Be that as it may, on 2 November 1990, as agreed on in the Restructure Sale Agreement, STKG signed a Signage Sub-License Agreement with the respondent granting it the advertisement right for a yearly fee of RM1000. This agreement also provided that in the event that the agreement is terminated, STKG would compensate the respondent for its loss of potential revenue of RM7,797,000 per year thereunder, albeit in accordance with the formula as set out in cl. 8.2 (‘cl. 8 formula’), and further admit of a debt payable to the respondent (cl. 8.3). Thereafter, STKG received and accepted an offer from one UEM to purchase its shares for RM97.5 million. However, before the formal takeover deal was executed, STKG signed a Signage Sub-Licence Amending Agreement with the respondent amending the triggering point for a claim to arise under the cl. 8 formula to include the mutual termination of the First Concession Agreement or the termination of the Signage Sub-Licence Agreement by STKG.

On 23 January 1991, an agreement was executed on the sales of STKG shares to Metro Juara Bhd, a nominee of UEM owned by one Anuar Othman and Dato Halim Saad, whereupon STKG assumed its present name, Metramac Corporation Sdn Bhd (the appellant). Having taken over the appellant, the new owners, however, terminated the First Concession Agreement and replaced it with a Replacement Concession Agreement, rescinded the Signage Sub-Licence Agreement and the Signage Sub-Licence Amending Agreement and assigned the advertising right to some third parties. It was also evident that, a few months later, on account of the termination the First Concession Agreement, a sum of RM405 million (eventually RM756.7 million) was paid by DBKL to the appellant. The respondent alleged that the acts of the new owners constituted breach of contract and trust, and in the circumstances applied to the High Court inter alia for the following orders, namely: (i) damages for breach of the advertising right or alternatively damages in the sum of RM65,182,920 for breach of the Signage Sub-Licence Agreement; and (ii) a declaration that the appellant was holding the RM405 million and other sums received from DBKL on trust for the respondent pursuant to cls. 9 & 10 of the Restructure Sale Agreement. The appellant denied the allegations, and in any case counter-claimed that the agreements were null and void and of no effect. The learned judge held that: (i) the appellant was liable for breach of the contract for the advertising right; (ii) the sum of RM65,182,920 calculated pursuant to cl. 8 formula was a penalty that contravened s. 75 of the Contracts Act 1950 (‘Contracts Act’), such that the respondent was only entitled to be paid damages to be assessed; (iii) the claim for loss of profits, monies or other benefits arising from ‘future contracts’ pursuant to cls. 9 & 10 of the Restructure Sale Agreement was void for uncertainty under s. 30 of the Contracts Act and for lack of consideration, and therefore no question of a trust account under the said agreement could arise; and (iv) the counterclaim of the appellant should also be dismissed. Dissatisfied, both parties appealed.

The Court of Appeal, vide the judgments of his lordship Gopal Sri Ram JCA, with which his lordship Hashim Yusoff JCA was in agreement (‘main judgment’), and of his lordship Zulkefli Makinudin JCA (‘supplementary judgment’), ruled that s. 75 of the Contracts Act did not apply as the cl. 8 formula is not a penalty, that that section had no application to an action for a simple debt like the respondent’s claim, that cl. 9.5 of the Restructure Sale Agreement had in law created an express trust and that s. 30 of the Contracts Act 1950 did not apply to the facts and circumstances of this case. The intermediate appellate court hence dismissed the appellant’s appeal, affirmed the High Court’s finding of liability in respect of the claim for loss of advertising right and allowed the respondent’s claim for the sum of RM65,182,920 as loss of profits derived from future contracts. The facts further showed, however, that, upon the evidence before it, the Court of Appeal deemed it appropriate to rebuke certain personalities who were not parties to this suit, including Tun Daim Zainuddin and Dato Halim Saad, the interveners herein. Among others, the main judgment remarked: (i) “so why pay RM97.5 million for the shares of such a company? The answer is simple enough. Anuar Othman dan Dato Halim Saad had something which the plaintiff did not. And that was the patronage of the then Minister of Finance, Tun Daim Zainuddin”; (ii) “I think it is a fair question to ask why taxpayers’ money was channelled into the hands of two private individuals – to profit them – instead of a wider section of the general public. It is not at all clear why the Minister of Finance used his power to favour Anuar Othman and Dato Halim Saad”; (iii) “for the sake of completeness, it must be mentioned that the RM32.5 million mentioned earlier was siphoned out of the defendant’s account by Anuar Othman and Dato Halim Saad”; (iv) “in this context, it is clearly wrong to treat even a private limited company with only two shareholders any different from any other company. An intentional misappropriation of such a company’s property, movable or immovable, is a criminal breach of trust within s. 405 of the Penal Code and, if the misappropriation is done by directors, as was the case here, it is the aggravated form of criminal breach of trust under s. 409”; and (v) “they are the ones who, with the support of Tun Daim, oppressed the previous shareholders into parting with their shares. They are the one ones who took advantage of the ideas of Dato’ Fauziah and used it for their own benefit and obtained huge payments from DBKL and the Federal Government”.

Aggrieved, the appellant applied for and was granted leave to appeal on the following questions, namely: (i) whether the creation of a trust by a company amounts to an illegal reduction of its capital; (ii) whether the test adopted by the Court of Appeal in determining whether cl. 8 of the Signage Agreement is a stipulation by way of a penalty and/or a sum named in the contract for the purpose of s. 75 of the Contracts Act is the correct test and/or is exhaustive; and (iii) whether the Court of Appeal’s adverse remarks/findings in the circumstances of this case, when viewed objectively, shows a real danger of bias on the part of the Court of Appeal in the judgment arrived at against the appellant. The interveners too were given leave to apply to expunge the adverse remarks of the Court of Appeal aforesaid, albeit in different and separate applications, and in the event, an additional question arose as to whether the remarks were offensive, unfair and unwarranted and ought to be expunged from the record.

Per Abdul Hamid Mohamad FCJ (delivering the judgment of the court in respect of the applications by the interveners):

(1) The sensible approach for this court to take is to first consider whether the statements on the face of it are offensive, objectionable, disparaging, unjust, unjustified and so on, and if so, to consider: (i) whether the party whose conduct is in question is before the court or has an opportunity of explaining or defending himself; (ii) whether there is evidence on record bearing on that conduct justifying the remarks; and (iii) whether it is necessary for the decision of the case, as an integral part thereof, to animadvert to that conduct. (State of Uttar Pradesh v. Mohd Naim ). (paras 164 & 165)

(2) We have before us a case where the unwarranted and disparaging statements were made by the learned judge in his judgment where Tun Daim was neither a party nor a witness; where he had no opportunity whatsoever to explain or defend himself; where there was no cogent evidence on record to support such statements; where he was neither referred to in the pleadings nor in the judgment of the trial judge; where in the notes of evidence of the trial judge even though his name was mentioned it was inconsequential and where such comments are altogether unnecessary for the learned judge to decide the case, even to arrive at the same conclusion he did. Reading those parts of the judgment objected to, there is no doubt that at least some of them are unwarranted and objectionable and this applies as well to Tan Sri Halim Saad’s application. Accordingly, the relevant offensive statements that formed part of the main judgment and embodied as it were in paras 13, 16, 17, 18 and 34 of the judgment should be expunged from the records. No part of the supplementary judgment however needs be expunged (paras 169, 170, 171, 172 & 173)

(3) What happened here was that the learned judge made the objectionable statements on a frolic of his own, that the interveners had to intervene and incur expenses through no fault of theirs, and that Fawziah Holdings needed to object to the applications to intervene because it is an attack on a judgment in their favour. Hence, while it is unfair to the interveners that they have to bear their own costs of making the applications, it is also not fair that Fawziah Holdings should bear their own costs of defending the judgment, and even more unfair to ask them to bear the costs of the interveners. In the circumstances, the court would allow the applications but would make no order as to costs. (paras 175 & 177)

[Appeal and applications partly allowed. Order accordingly]

Bahasa Malaysian translation of headnotes

Syarikat Teratai KG Sdn Bhd (‘STKG’) dan responden dalam kes ini mempunyai pemegang saham dan pengarah-pengarah yang sama iaitu Dato’ Fawziah dan ibunya, Maimoon Bee. Pada tahun 1986, STKG memperoleh satu kontrak dari Dewan Bandaraya Kuala Lumpur (‘DBKL’) bagi membina beberapa jalanraya di Kuala Lumpur dan mengutip tol di situ selama 12 tahun (‘konsesi’). STKG menandatangani dengan DBKL Perjanjian Konsesi Pertama di sini, dan di bawah itu suatu Perjanjian Pelesenan memberikan hak ekslusif kepada STKG untuk meletak iklan-iklan dan tanda-tanda jalan di kawasan dan dalam tempoh konsesi (‘hak pengiklanan’). Bagi melaksanakan projek konsesi, STKG juga: (i) menandatangai suatu Perjanjian Penjualan Penstrukturan dengan responden sekaligus bersetuju untuk melesenkan hak pengiklanan kepada responden, dan kedua, melalui fasal 9 & 10 perjanjian, mengkontrakkan semua kontrak dan kontrak hadapan kepada responden ataupun sebaliknya memegang apa jua wang, keuntungan dan manfaat dari kontrak-kontrak tersebut sebagai amanah untuk manfaat responden; dan (ii) menarik pemegang-pemegang saham baru ke dalam syarikat, mendapat modal RM65 juta dari mereka dan membuat pinjaman bank berjumlah RM204 juta.

Pada tahun 1990 STKG menyiapkan konsesi di bahagian Cheras, namun dipaksa menangguhkan kutipan tol oleh DBKL disebabkan bantahan orang ramai terhadap kutipan tersebut. STKG cuba mendapatkan pampasan berjumlah RM764 juta dari DBKL, dan untuk itu telah berjumpa dengan Tun Daim Zainuddin, Menteri Kewangan ketika itu, namun usaha tersebut gagal. Apapun, pada 2 November 1990, seperti yang dijanjikan di dalam Perjanjian Penjualan Penstrukturan, STKG menandatangani suatu Perjanjian Pelesenan-Kecil Tandajalan dengan responden memberikan hak pengiklanan kepada responden dengan balasan fi RM1,000 setahun. Perjanjian ini juga memperuntukkan bahawa jika ianya ditamatkan, maka STKG akan membayar pampasan kepada responden atas kehilangan jangkaan hasil RM7,797,000 di bawahnya, iaitu berdasarkan kepada formula yang tertera di fasal 8.2 perjanjian (‘formula fasal 8’), dan seterusnya mengakui akan kewujudan suatu hutang yang perlu dibayar kepada responden (fasal 8.3). Berikutnya, STKG mendapat dan menerima tawaran yang dibuat oleh satu UEM untuk membeli saham-sahamnya dengan harga RM97.5 juta. Bagaimanapun, sebelum perjanjian pengambil-alihan formal mengenainya dimeterai, STKG menandatangani suatu Perjanjian Pemindaan Pelesenan-Kecil Tandajalan dengan responden meminda pembingkas (triggering point) untuk membangkitkan tuntutan di bawah formula fasal 8 bagi memasukkan sama faktor penamatan bersama Perjanjian Konsesi Pertama atau penamatan Perjanjian Pelesenan-Kecil Tandajalan oleh STKG.

Pada 23 Januari 1991, perjanjian dimeterai mengenai penjualan saham-saham STKG kepada Metro Juara Sdn Bhd, nomini UEM yang dimiliki oleh seorang Anuar Othman dan Dato Halim Saad, dan berikutnya STKG menukar namanya kepada Metramac Corporation Sdn Bhd (perayu). Bagaimanapun, setelah mengambilalih perayu, pemilik-pemilik baru telah menamatkan Perjanjian Konsesi Pertama dan menggantikannya dengan Perjanjian Penggantian Konsesi, membatalkan Perjanjian Pelesenan-Kecil Tandajalan dan Perjanjian Pemindaan Pelesenan-Kecil Tandajalan serta memberikan hak pengiklanan kepada pihak ketiga. Juga jelas bahawa, beberapa bulan kemudian, berasaskan kepada penamatan Perjanjian Konsesi Pertama, sejumlah RM405 juta (akhirnya RM756.7 juta) telah dibayar oleh DBKL kepada perayu. Responden mengatakan bahawa perbuatan-perbuatan pemilik baru perayu di atas merupakan suatu kemungkiran kontrak dan amanah, dan dengan itu telah memfail tuntutan di Mahkamah Tinggi antara lain untuk perintah-perintah berikut: (i) gantirugi kerana kemungkiran hak pengiklanan, atau secara alternatifnya gantirugi untuk jumlah RM65,182,920 kerana kemungkiran Perjanjian Pelesenan-Kecil Tandajalan; dan (ii) deklarasi bahawa perayu memegang RM405 juta di atas serta lain-lain imbuhan yang diterima dari DBKL sebagai amanah untuk responden berdasarkan Perjanjian Penjualan Penstrukturan. Perayu menolak alegasi dan apapun telah memplid tuntutan balas bahawa perjanjian-perjanjian adalah batal dan tidak sah dan tidak mempunyai kesan. Yang arif hakim memutuskan bahawa: (i) perayu bertanggungan kerana memungkiri kontrak hak pengiklanan; (ii) jumlah RM65,182,920 yang diasas kepada formula fasal 8 adalah suatu penalti yang menyanggahi s. 75 Akta Kontrak 1950 (‘Akta Kontrak’), berakibat responden hanya berhak kepada gantirugi ditaksir; (iii) tuntutan kehilangan keuntungan, pendapatan atau manfaat-manfaat lain yang berbangkit dari “kontrak hadapan” di bawah fasal-fasal 9 & 10 Perjanjian Penjualan Penstrukturan adalah batal di bawah s. 30 Akta Kontrak kerana kekaburan dan kerana ketiadaan balasan, berakibat tiada persoalan mengenai akaun amanah di bawah perjanjian tersebut boleh berbangkit; dan (iv) tuntutan balas perayu adalah ditolak. Merasa tidak puashati, kedua-dua pihak telah merayu.

Mahkamah Rayuan, melalui penghakiman-penghakiman yang arif Gopal Sri Ram HMR, dengan mana yang arif Hashim Yusoff HMR telah bersetuju (‘penghakiman utama’), dan penghakiman yang arif Zulkefli Makinudin HMR (‘penghakiman tambahan’), memutuskan bahawa s. 75 Akta Kontrak adalah tidak terpakai oleh kerana formula fasal 8 bukan merupakan suatu penalti, bahawa seksyen tersebut tidak terpakai kepada tindakan untuk suatu hutang biasa seperti kes responden, bahawa fasal 9.5 Perjanjian Penjualan Penstrukturan telah mencetuskan suatu amanah expres di sisi undang-undang dan bahawa s. 30 Akta Kontrak tidak terpakai kepada fakta dan halkeadaan kes ini. Mahkamah Rayuan peringkat pertengahan dengan itu menolak rayuan perayu, mengesahkan dapatan liabiliti Mahkamah Tinggi mengenai tuntutan hak pengiklanan dan membenarkan tuntutan responden untuk jumlah RM65,182,920 atas dasar ianya merupakan kehilangan keuntungan dari kontrak hadapan. Fakta bagaimanapun menunjukkan bahawa, berdasarkan keterangan di hadapannya, Mahkamah Rayuan merasakan wajar untuk menempelak beberapa personaliti yang bukan merupakan pihak kepada guaman, termasuklah Tun Daim Zainuddin dan Dato Halim Saad, pencelah-pencelah di sini. Antara lain penghakiman utama menyatakan: (i) “oleh itu kenapa membayar RM97.5 juta untuk saham-saham syarikat sedemikian? Jawapannya mudah. Anuar Othman dan Dato Halim Saad mempunyai sesuatu yang tidak dimiliki oleh plaintif. Sesuatu itu adalah naungan Menteri Kewangan ketika itu, Tun Daim Zainuddin”; (ii) “saya fikir adalah satu soalan yang adil untuk bertanya kenapa wang pembayar cukai telah disalurkan kepada dua orang individu – bagi kemanfaatan mereka – dan tidak secara lebih meluas kepada masyarakat awam. Tidak jelas mengapa Menteri Kewangan telah menggunakan kuasanya untuk manfaat Anuar Othman dan Dato Halim Saad”; (iii) “untuk melengkapkan, harus dinyatakan bahawa jumlah RM32.5 yang disebut sebelum ini telah dikeluarkan dari akaun defendan oleh Anuar Othman dan Dato Halim Saad”; (iv) “dalam konteks ini, adalah silap untuk melayan sebuah syarikat sendirian berhad yang mempunyai dua orang pemegang saham berbeza dari syarikat-syarikat lain. Perbuatan melesapkan dengan niat sebarang harta syarikat sedemikian, sama ada harta alih atau tak alih, adalah satu pecah amanah jenayah di bawah s. 405 Kanun Kesiksaan dan, jika pelesapan dilakukan oleh pengarah-pengarah, seperti halnya di sini, maka ia berbentuk pecah amanah jenayah yang lebih berat di bawah s. 409”; (v) “merekalah orangnya yang, dengan sokongan Tun Daim Zainuddin, menindas pemegang-pemegang saham terdahulu untuk melupuskan saham-saham mereka. Merekalah orangnya yang mengambil peluang atas idea-idea Dato’ Fawziah dan menggunakannya untuk manfaat mereka dan memperoleh pembayaran besar dari DBKL dan Kerajaan Persekutuan”.

Terkilan, perayu memohon dan memperoleh kebenaran untuk merayu atas persoalan-persoalan berikut, iaitu: (i) sama ada pembentukan suatu amanah oleh sebuah syarikat telah mengurangkan modalnya dengan secara tidak sah; (ii) sama ada ujian yang digunapakai Mahkamah Rayuan dalam menentukan sama ada fasal 8 Perjanjian Tandajalan merupakan suatu peruntukan penalti dan/atau suatu jumlah yang dinyatakan di dalam kontrak bagi maksud s. 75 Akta Kontrak adalah ujian yang betul dan/atau lengkap; dan (iii) sama ada ucapan/dapatan kurang baik oleh Mahkamah Rayuan dalam halkeadaan kes di sini, dilihat secara objektif, menunjukkan bahaya sebenar bias Mahkamah Rayuan dalam penghakimannya yang tidak memihak kepada perayu. Pencelah-pencelah juga telah diberi izin untuk memohon membuang kenyataan kurang baik Mahkamah Rayuan di atas, walaupun melalui dua permohonan yang berasingan, dan oleh itu, persoalan juga berbangkit sama ada ucapan bersifat menyerang, tidak adil dan tidak wajar dan harus dibuang dari rekod.

Oleh Abdul Hamid Mohamad HMP (menyampaikan penghakiman mahkamah berkaitan permohonan pencelah-pencelah):

(1) Pendekatan munasabah yang harus diambil oleh mahkamah ini adalah dengan terlebih dahulu menimbang sama ada ucapan-ucapan pada permukaannya adalah bersifat serangan, mencela, menghina, tidak adil, tidak berjustifikasi dan sebagainya, dan jika begitu, menimbang: (i) sama ada pihak yang kelakuannya dipersoalkan berada di hadapan mahkamah atau mempunyai peluang untuk memberi penjelasan ataupun mempertahankan diri; (ii) sama ada terdapat keterangan pada rekod mengenai kelakuan tersebut sekaligus menjustifikasikan ucapan; dan (iii) sama ada adalah perlu untuk keputusan kes, sebagai satu bahagiannya yang penting, bahawa ucapan tersebut dimuat ke dalam penghakiman. (State of Uttar Pradesh v. Mohd Naim ).

(2) Yang ada di hadapan kami adalah suatu kes di mana ucapan-ucapan tidak wajar dan menghina telah dibuat oleh yang arif hakim dalam keputusannya di mana Tun Daim bukan merupakan suatu pihak atau seorang saksi; di mana beliau langsung tidak mempunyai peluang untuk membuat penjelasan ataupun membela dirinya; di mana tiada keterangan kukuh untuk menyokong ucapan-ucapan sedemikian; di mana nama beliau tidak disebut di dalam pliding atau oleh hakim bicara; di mana di dalam nota keterangan hakim bicara, walaupun namanya disebut, ia tidak membangkitkan apa-apa konsekuen dan di mana komen-komen berkenaan adalah tidak penting untuk yang arif hakim membuat keputusan mahupun mencapai konklusi-konklusi yang dibuatnya. Membaca bahagian penghakiman yang dibantah, tidak ada keraguan bahawa sekurang-kurang sebahagian darinya adalah tidak wajar dan bersifat menghina dan ini terpakai sama kepada permohonan Tan Sri Halim Saad. Oleh yang demikian, ucapan-ucapan menghina yang menjadi sebahagian dari penghakiman utama dan yang terangkum ke dalam perenggan-peranggan 13, 16, 17, 18 dan 34 penghakiman utama hendaklah dibuang dari rekod. Selain dari itu, tiada bahagian dari penghakiman tambahan perlu dibuang.

(3) Apa yang berlaku di sini adalah bahawa yang arif hakim membuat kenyataan yang menghina atas kesukaannya sendiri, bahawa pencelah-pencelah terpaksa mencelah dan menanggung perbelanjaan walaupun mereka tidak melakukan apa-apa kesalahan, dan bahawa Fawziah Holdings perlu membuat bantahan kepada permohonan untuk mencelah disebabkan ia dibuat terhadap suatu penghakiman yang menyebelahi mereka. Oleh itu, sementara ianya memang tidak adil kepada pencelah-pencelah bahawa mereka perlu memikul sendiri kos permohonan mereka, ianya juga adalah tidak adil bahawa Fawziah Holdings harus menanggung kos untuk mempertahankan penghakiman, dan lebih tidak adil untuk meminta mereka menanggung kos pihak pencelah-pencelah. Dalam halkeadaan sedemikian, mahkamah membenarkan permohonan tetapi tidak akan membuat sebarang perintah mengenai kos.

Case(s) referred to:

Allied Capital Sdn Bhd v. Mohd Latiff Shah Mohd & Another Application [2004] 4 CLJ 350 FC (refd)

Alor Janggus Soon Seng Trading Sdn Bhd & Ors v. Sey Hoe Sdn Bhd & Ors [2002] 4 CLJ 268 CA (refd)

AM Mathur v. Pramod Kumar Gupta & Ors [1990] 2 SCC 533 (refd)

Bahai v. Rashidian & Anor [1985] 3 All ER 385 (refd)

Chia Yan Tek & Anor v. Ng Swee Kiat & Anor [2001] 4 CLJ 61 FC (refd)

Dato’ Tan Heng Chew v. Tan Kim Hor [2006] 1 CLJ 577 FC (refd)

Dewan Undangan Negeri Kelantan & Anor v. Nordin Salleh & Anor [1992] 2 CLJ 1125; [1992] 1 CLJ (Rep) 72 SC (refd)

Dunlop Pneumatic Tyre Co Ltd v. New Garage and Motor Co Ltd [1914-15] All ER Rep 739 (refd)

Franklin v. Minister of Town & Country Planning [1948] AC 87 (refd)

Inner West London Coroner, ex parte Dallaglio [1994] 4 All ER 139 (refd)

Insas Bhd & Anor v. Ayer Molek Rubber Co Bhd & Ors [1995] 3 CLJ 328 FC (refd)

K: a Judicial Officer AIR [2001] SC 972 (refd)

Law v. Redditch Local Board [1982] 1 QB 127 (refd)

Linggi Plantations Ltd v. Jagatheesan [1971] 1 LNS 66; [1972] 1 MLJ 89 (refd)

Locabail (UK) Ltd v. Bayfield Properties Ltd & Anor [2000] 1 All ER 65 (refd)

Majlis Perbandaran Pulau Pinang v. Syarikat Bekerjasama-sama Serbaguna Sungai Gelugor [1999] 3 CLJ 65 FC (refd)

Megat Najmuddin Dato’ Seri (Dr) Megat Khas v. Bank Bumiputra (M) Bhd [2002] 1 CLJ 645 FC (refd)

MGG Pillai v. Tan Chee Yionn [2002] 3 CLJ 577 FC (refd)

Newacres Sdn Bhd v. Sri Alam Sdn Bhd [2000] 2 CLJ 833 FC (refd)

Phileo Promenade Sdn Bhd & Anor v. Premier Modal (M) Sdn Bhd [2003] 1 CLJ 854 CA (refd)

PK Achuthan v. State Bank of Travancore, Calicut AIR [1975] Ker 47 (refd)

R v. Gough [1993] AC 646 (refd)

R v. Valente [1985] 19 CRR 354 (refd)

R Rama Chandran v. The Industrial Court Of Malaysia & Anor [1997] 1 CLJ 147 FC (refd)

RDS v. The Queen 151 DLR (4th) 193 (refd)

Reg v. Bow Street Magistrate, Ex p Pinochet (No 2) (HL (E)) [2000] 1 AC 119 (refd)

Robophone Facilities Ltd v. Blank [1966] 1 WLR 1428 (refd)

Scott v. Scott [1913] AC 417 (refd)

SS Maniam v. The State Of Perak [1956] 1 LNS 112; [1957] MLJ 75 (refd)

State of Madhya Pradesh & Ors v. Nandlal Jaiswal & Ors [1987] 1 SCR1 (refd)

State of Uttar Pradesh v. Mohd Naim [1964] AIR SC 703 (refd)

State of West Bengal v. Babu Chakraborty AIR [2004] SC 2324 (refd)

Sundram v. Arujunan & Anor [1994] 4 CLJ 300 SC (refd)

T v. Secretary of State for the Home Department [1995] 1 WLR 545 (refd)

V Sujatha v. State of Kerala & Ors [1994] Supp (3) SCC 436 (refd)

Valente v. Her Majesty the Queen [1985] 2 SCR 673 (refd)

Legislation referred to:

Companies Act 1965, s. 64, 365(1)

Contracts Act 1950, ss. 30, 75

Counsel:

For the appellant – Dato’ Muhammed Shafee Abdullah (S Sivaneindiren, Teh Eng Lay & Kaushalya Rajathurai with him); M/s Cheah Teh & Su

For the respondent – Dato’ Dr Cyrus Das (Benjamin Dawson, Steven Thiru, Alvin Tang, Koh San Tee, David Mathew & Nor Aisyah Abu Bakar with him); M/s Noraisyah & Co

For the intervener (Tun Daim Zainuddin) – Dato’ Cecil Abraham (Sunil Abraham with him); M/s Shearn Delamore & Co

For the intervener (Tan Sri Halim Saad) – Tommy Thomas (Alan Gomez (Jason Wee with him); M/s Tommy Thomas
Reported by WA Sharif

Case History:

Federal Court : [2006] 3 CLJ 177

Court Of Appeal : [2006] 1 CLJ 197

Court Of Appeal : [2006] 1 CLJ 996

 

 

JUDGMENT

Abdul Hamid Mohamad FCJ:

[149] It started with Fawziah Holdings Sdn. Bhd. (“Fawziah Holdings”) suing Metramac Corporation Sdn. Bhd. (“Metramac Corporation”) principally for damages for breach of contract in the High Court of Kuala Lumpur (Commercial Division) in Civil Suit no. D5-22-110-1995. The High Court allowed part of the claim of Fawziah Holdings and dismissed the others. Both Fawziah Holdings and Metramac Corporation appealed against the High Court judgment to the Court of Appeal. Fawziah Holdings’ appeal was registered as Civil Appeal No. W-02-1009-2003. Metramac Corporation’s appeal was registered as Civil Appeal No. W-02-1013-2003.

[150] The Court of Appeal allowed Fawziah Holdings’ appeal but dismissed Metramac Corporation’s appeal. Metramac Corporation applied for leave to appeal to this Court against both the judgments. The application arising from W-02-1009-2003 was registered as 08-8-2006(W) while the application arising from W-02-1013-2003 was registered as 08-9-2006(W). Leaves to appeal were granted. Metramac Corporation then filed the notices of appeal which were registered as 02-19-2006(W) and 02-20-2006(W) respectively.

[151] The judgment of the Court of Appeal ([2006]1 MLJ 505; [2006] 1 CLJ 996; [2006] 2 AMR 1), in particular, the judgment of Gopal Sri Ram JCA contained statements against Tun Daim and Tan Sri Halim Saad which they found to be objectionable. Tun Daim and Tan Sri Halim Saad were neither parties nor witnesses in the suit in the High Court or in the appeals in the Court of Appeal. They each filed an application to intervene in Metramac Corporation’s applications for leave to appeal (08-8-2006(W) and 08-9-2006(W)) and to have the offensive statements expunged. Tun Daim’s application in 08-8-2006(W) is in encl. 9(a) while his application in 08-9-2006(W) is in encl. 7(a). Both are the same.

[152] Tan Sri Halim Saad made a similar application in 08-8-2006(W), in encl. 13(a).

[153] This court on 7 March 2006 granted both Tun Daim and Tan Sri Halim Saad leave to intervene in the appeals for the purpose of expunging the alleged offensive statements. The main prayers in their applications, ie, to expunge the allegedly offensive statements were fixed for hearing together with the hearing of the appeals by Metramac Corporation (02-19-2006(W) and 02-20-2006(W)).

[154] In the mean time, Tun Daim applied to have encls. 7(a) amended and to have some documents exhibited in Fawziah Holdings’ affidavits expunged – encl. 30(a). Similar application was made by him in respect of encl. 9(a) – encl. 55(a). Tan Sri Halim Saad also made an application to expunge the same documents. His application is in encl. 81(a).

[155] As we had sorted out the side issues without having to make decisions and orders, I do not think that it is necessary to say anything about them. I shall go straight to the main issue ie, that of expunging the allegedly offensive statements.

Jurisdiction Of The Court

[156] Actually, jurisdiction of this court to make an order to expunge offensive statements is not an issue before us. First, this court in allowing Tun Daim and Tan Sri Halim Saad (“the interveners”) to intervene in these appeals for that purpose, was already satisfied that this court had the threshold jurisdiction to make such an order.

[157] Secondly, this court has repeatedly held that it has the inherent jurisdiction “to make any order that may be necessary to prevent injustice or to prevent any abuse of the process of the court” – see Chia Yan Tek & Anor v. Ng Swee Kiat & Anor [2001] 4 CLJ 61; Megat Najmuddin bin Dato’ Seri (Dr.) Megat Khas v. Bank Bumiputra (M) Bhd. [2002] 1 CLJ 645; MGG Pillai v. Tan Chee Yionn [2002] 3 CLJ 577 and Allied Capital Sdn. Bhd. v. Mohd. Latiff bin Shah Mohd. & Another Application [2004] 4 CLJ 350.

[158] Thirdly, at least on two occasions, courts in this country had expunged remarks made in a judgment. The first is Insas Bhd. & Anor v. Ayer Molek Rubber Co. Bhd. & Ors. [1995] 3 CLJ 328 (FC). The other case is Phileo Promenade Sdn. Bhd. & Anor v. Premier Modal (M) Sdn. Bhd. [2003] 1 CLJ 854 (CA).

[159] In Insas Berhad or better known as the “Ayer Molek Case” the Federal Court expunged offensive remarks made by the Court of Appeal in its judgment against the High Court, the applicants and their counsel. Jurisdiction was not an issue in that case and the Federal Court did not even make any mention of it.

[160] In Phileo Promenade (supra), the Court of Appeal expunged three paragraphs from the judgment of the High Court. In that case too, jurisdiction of the court, ie, the Court of Appeal, was not an issue and no mention was made in the judgment of the Court of Appeal on the question of jurisdiction. It was accepted by all that the court had the jurisdiction to do so.

[161] Fourthly, in this case too, learned counsel for Fawziah Holdings (the respondent) did not raise any objection to the application on ground of want of jurisdiction. It was only the learned counsel for the interveners who, out of caution, submitted on the question of jurisdiction of this court to make the expunging order.

[162] The Supreme Court of India too has on occasion exercised its inherent jurisdiction to expunge comments of the lower courts. An example is the case of State of Uttar Pradesh v. Mohd. Naim [1964] AIR SC 703. That case was also cited in Insas Bhd. (supra) and Phileo Promenade (supra).

[163] In the circumstances, I do not think it is necessary to dwell at length on the issue of jurisdiction of this court to make the expunging order. Suffice to say that this court has the jurisdiction to do so, if circumstances warrant it to do so.

The Test

[164] A number of judgments of the Supreme Court of India were referred to us. They are State of Uttar Pradesh v. Mohd. Naim (supra), A.M. Mathur v. Pramod Kumar Gupta & Ors [1990] 2 SCC 533; State of Madhya Pradesh & Ors. v. Nandlal Jaiswal & Ors [1987] 1 SCR 1; V. Sujatha v. State of Kerala & Ors. [1994] Supp (3) SCC 436. In fact passages from the same cases have been reproduced in the judgments of this court in Insas Berhad (supra) and in the judgment of the Court of Appeal in PhileoPromenade (supra). I do not think it is necessary to reproduce them again. These cases talk about the need for judicial restraint, remind judges not to misuse their authority by intemperate comments, undignified banter or scathing criticism of counsel, parties and witnesses, advise judges “not to use strong and carping language while criticising the conduct of parties and witnesses. They (judges – added) must have the humility to recognise that they are not infallible and any harsh and disparaging strictures passed by them against any party may be mistaken and unjustified and if so, they may do considerable harm and mischief and resulting in injustice” – per B.N. Bhagwati CJ.

[165] In State of Uttar Pradesh v. Mohd. Naim (supra) S.K. Das J, delivering the judgment of the court said that in such cases “it is relevant to consider (a) whether the party whose conduct is in question is before the court or has an opportunity of explaining or defending himself; (b) whether there is evidence on record bearing on that conduct justifying the remarks; and (c) whether it is necessary for the decision of the case, as an integral part thereof, to animadvert on that conduct”.

[166] I agree that the sensible approach for this court to take is first to consider whether the statements, on the face of it, are offensive, objectionable, disparaging, unjust, unjustified and so on. If so, then the court should consider the three points mentioned above. However, there may be other factors arising from the circumstances of the case that may be relevant.

[167] So, we have to look at the statements that have become the subject matter of this application. Both Tun Daim and Tan Sri Abdul Halim Saad have reproduced the parts of the judgments objected to by them in their affidavits in support of their respective application. They are too long to be reproduced. Suffice for me to identify them by their paragraph numbers. They are paras 11, 13, 16 and 34 of the judgment of Gopal Sri Ram JCA and para 35 of the judgment of Zulkefli Ahmad Makinudin JCA.

[168] Tan Sri Halim Saad objected to paragraphs (at times part of) 10, 11, 12, 13, 15, 16, 17, 18 and 34 of the judgment of Gopal Sri Ram JCA and part of para 32 of the judgment of Zulkifli Ahmad Makinudin JCA.

[169] We have before us a case where the unwarranted and disparaging statements were made by the learned judge in his judgment where Tun Daim was neither a party nor a witness; where he had no opportunity whatsoever to explain or defend himself; where there was no cogent evidence on record to support such statements; where he was neither referred to in the pleadings nor in the judgment of the trial judge; where in the notes of evidence of the trial judge even though his name was mentioned it was inconsequential and where such comments are altogether unnecessary for the learned judge to decide the case, even to arrive at the same conclusion that he did.

[170] Reading those parts of the judgment objected to I have no doubt that, at least some of them are unwarranted and objectionable and should be expunged from the records.

[171] The same applies to Tan Sri Halim Saad’s application.

[172] In my judgment, the following statements from the judgment of Gopal Sri Ram (JCA) should be expunged:

Para. 13

So why pay RM97.5 million for the shares of such a company? The answer is simple enough. Anuar Othman and Dato Halim Saad had something which the plaintiff did not. And that was the patronage of the then Minister of Finance, Tun Daim Zainuddin. The events leading to the takeover of the defendant company and subsequent thereto clearly bear this out. For example, look at the confident way in which Metro Juara behaved. Even before the restructure sale agreement was signed on 23 January 1991, Metro Juara wrote to DBKL on 14 January 1991 about recommencing toll collection and re-negotiating the first concession agreement. It would not have written such a letter unless everything had already been put in place.

Para. 16

You may well ask how all this could have happened without the direct involvement of Tun Daim. It is also incomprehensible why the defendant as it was constituted immediately before the takeover by Metro Juara was not given this same financial support by the Federal Government. After all, at least two of the pre-takeover shareholders were either Government concerns or Government assisted concerns. And in the case of Tabung Haji, the ultimate beneficiaries would have been the poorer section of our society. I think that it is a fair question to ask why taxpayers’ money was channelled into the hands of two private individuals – to profit them – instead of a wider section of the general public. It is not at all clear why the Minister for Finance used his power to favour Anuar Othman and Dato Halim Saad.

Para 17

17. For the sake of completeness, it must be mentioned that the RM 32.5 million mentioned earlier was siphoned out of the defendant’s account by Anuar Othman and Dato Halim Saad. I asked learned counsel for the defendant during argument how this ever could have happened. His reply was stupefying. He said that these two gentlemen had, as shareholders, paid this sum into the defendant’s account and were now reimbursing themselves. This answer overlooks the most elementary principle of company law. It is this. The shareholders of a company have no interest, legal or equitable, in the assets of their company. See, Law Kam Loy v. Boltex Sdn Bhd [2005] 3 CLJ 355.

Para 18

18. In this context, it is clearly wrong to treat even a private limited company with only two shareholders any different from any other company. An intentional misappropriation of such a company’s property, movable or immoveable is a criminal breach of trust within section 405 of the Penal Code and, if the misappropriation is done by directors, as was the case here, it is the aggravated form of criminal breach of trust under section 409. See, Public Prosecutor v. Datuk Harun [1976] 1 LNS 96; [1977] 1 MLJ 180. I need do no more than quote from the judgment of Chua J in Tay Choo Wah v. Public Prosecutor [1976] 1 LNS 156; [1976] 2 MLJ 95 where his lordship said:

The sooner directors realise that the Companies Act applies to private companies whether family or not the better it is. A company is not a mere puppet of the directors and the people interested in the proper and lawful conduct of the company are not just the directors and the shareholders. All sorts of people have a legitimate and proper interest in the well-being and preservation of the assets and properties of a company, like creditors and persons having dealings with the company. (emphasis added.)

I must therefore be forgiven if I were to look askance at learned counsel’s rationale for what was done in this case.

Para. 34

They are the ones who, with the support of Tun Daim, oppressed the previous shareholders into parting with their shares. They are the ones who took advantage of all the ideas of Dato’ Fawziah and used it for their benefit and obtained huge payments from DBKL and the Federal Government. It is now scarcely open to them to point fingers at the plaintiff.

[173] No part of the judgment of Zulkifli Ahmad Makinudin JCA needs be expunged.

Costs

[174] The question is, since I am allowing the application to expunge, whether Fawziah Holdings should be penalized with costs of the interveners who, through no fault of theirs, have to incur expenses to intervene in the appeals. On the face of it, it is only fair that they be given their costs. But, to order that Fawziah Holdings pay their costs, there must be some “fault” on the part of Fawziah Holdings. At the very least, it should be shown that Fawziah Holdings in prosecuting their appeal, had led the learned judge to make those objectionable statements that he had made. I do not think it is fair to penalize Fawziah Holdings with costs if the learned judge, on a frolic of his own, had made those objectionable statements. What part had Fawziah Holdings played in this episode?

[175] I have read the excerpts of Fawziah Holdings’ Final Submission and reply in the Court of Appeal which the interveners rely as forming the basis for the learned judge to make the impunged statements. To me the mention of the interveners’ names in the contexts are a matter of fact and inconsequential. In no way they can be said to have caused the learned judge to make such comments. What happened here was that the learned judge had gone on a frolic of his own to do so.

[176] It is true that Fawziah Holdings had objected to the applications of the interveners to intervene and had argued against expunging. Their actions is understandable and quite reasonable because it is an attack on a judgment which was in their favour and that they feared of having “a cut-up” judgment to defend. In any event, even if Fawziah Holdings did not object to the applications, the interveners would have to engage solicitors and counsel and incur legal expenses all the same. It is unfair to the interveners that they have to bear their own costs of making these applications. It is also unfair that Fawziah Holdings have to bear their own costs of defending the judgment of the learned judge. It is even more unfair to make Fawziah Holdings bear the costs of the interveners. All these only reemphasize the serious consequences statements from the bench can have. That is a lesson that all judges should learn.

[177] In conclusion, I would allow these applications and expunge the parts of the judgment of Gopal Sri Ram JCA reproduced earlier. I would make no order as to costs and I would order that the deposits to be refunded to the interveners.

[178] The learned Chief Justice Malaysia, Tun Dato’ Seri Ahmad Fairuz bin Dato’ Sheikh Abdul Halim, the learned Chief Judge (Sabah and Sarawak) Tan Sri Dato’ Richard Malanjum, and my learned brothers Dato’ Alauddin bin Dato’ Mohd. Sheriff, FCJ and Dato’ Nik Hashim bin Nik Ab.Rahman, FCJ have read this judgment and have agreed with it.

 

CONFLICT OF INTERESTS BETWEEN DIFFERENT BASIC RIGHTS

FOURTH CONFERENCE OF CONSTITUTIONAL COURT JUDGES
November 29 -30, 2006 in Manila, Philippines

CONFLICT OF INTERESTS BETWEEN DIFFERENT BASIC RIGHTS
By
Dato’ Abdul Hamid Mohamad
Judge, Federal Court, Malaysia

 
I shall approach this subject from the Malaysian perspective.

The Portuguese rule of Malacca that began in 1511, followed by the Dutch, did not change significantly the racial or ethnic composition of the population of the Malay Peninsular (as Peninsular Malaysia was then known). It remained inhabited, besides the aborigines, by the Malays professing the Islamic religion. However, during the period of British colonization (by whatever name it was called) of the Malay Peninsular that began with “the founding” of Penang in 1786, immigrants from China and India came in large numbers first to work and later to settle in Malaya, as peninsular Malaysia was known by then. By the time the British left and Malaya became independent in 1957, the demography of Malaya had changed tremendously. There were then three main racial groups, the Malays, the Chinese and the Indians with different religion, language and culture. Six years later (in 1963) Sabah and Sarawak joined Malaya and Malaya became Malaysia. Sabah and Sarawak brought in more ethnic, religious, language and cultural denominations. Malaysia then was also facing the threat of Communist insurgency.

That was the reality that the country had to face when it obtained her independence in 1957. On the one hand, there was the conflict of interests and, therefore, the need to balance the demands of the various ethnic, language, religious and cultural groups. On the other hand, there was the necessity to establish law and order, to rule the country and to develop it.

So, the Constitution that was adopted in 1957 was a social contract between various interest groups and also the State. There was a lot of give and take. No particular group got everything it wanted. But each group got something. The non-Malays, the immigrants, were given citizenship. The Malays, who by definition in the Constitution must be persons professing the religion of Islam, got Islam recognized as “the religion of the Federation”. In return, the non-Muslims got the assurance that they may practice their religions “in peace and harmony in any part of the Federation.” The Malay Rulers or “Sultans”, as most of them are called, remained as constitutional monarchs in their respective States. Every five years they elect one of them to be the Agong (King) for the whole country. (Perhaps, Malaysia is the only country in the world where the King is elected and only for a term of five years. So far there has been no extension of time, abridgement, yes, but only because of death.) The Malay language became the National Language but the use of other languages is protected. Chinese and Tamil schools not only continue to exist but are financed by the Government. No one is required to change his name or religion. The culture of every group is in fact promoted to make “Malaysia truly Asia” as the tourism advertisement goes. On the legal side, the Muslims have their Islamic personal laws administered by the Shari’ah Courts. Personal laws of the non-Muslims are governed by the common law of England, codified or otherwise. Please do not think that the non-Muslims have been denied the right to have their own respective personal laws e.g. Chinese personal law or Indian personal law. It is their choice to adopt the common law of England.

(I pause here to ask one question: If a Muslim majority State can allow a plural system of personal laws to operate why can’t a Christian, Buddhist or Hindu majority State allow the same?)

It appears that in balancing the rights and demands of the various ethnic, religious, language and cultural groups that make Malaysia, the approach was to give every group its due as far as possible while trying to build a united nation where the people can live harmoniously, sharing the enlarged economic cake and trying to forge a national culture with the Malay culture as its core which is historically and politically understandable. And that is generally accepted by Malaysians. Perhaps that is the explanation why Malaysians kept returning the same government every five years (roughly) since independence and why the Malaysian army had remained in their barracks all these years!

We now come to the basic rights of individuals and the balancing of such rights against the interests of the State. In this, at times, the courts have a role to play.

There are no rights without duties and responsibilities. Two individuals sharing a room cannot just think of their rights. Each of them has his duties and responsibilities to his roommate which will somehow and somewhat curtail his rights. Place the individual in a family, a society and a nation, there will certainly be conflicts between his interests (or rights) as against the interests (or rights) of the family, the society or the nation. How do we balance the conflicting rights? I think our approach has been more pragmatic than idealistic.

Take equality, for example. What we had was a newly independent, multi-racial, multi-religious, multi-language, multi-cultural country with big economic and educational gaps between the groups under the threat of communist insurgency. So, the Constitution, inter alia, provides for “special privileges” for the Malays and the Natives or Sabah and Sarawak. They may be discriminatory even though permissible in law. However, the wisdom has been proved in the last 50 years. Now, at least two countries have copied our provisions: South Africa and Fiji.

Similarly, take freedom as another example. A newly born country with a multi-racial, multi-language, multi-religious, multi-cultural population cannot be given the same treatment as an old-established country with a homogeneous population. In the case of the former, too many things may be sensitive and explosive. Previously, people in old-established countries with homogeneous population and without serious economic gap between them, did not seem to appreciate this factor. Now, with only a relatively small fraction of their population being people of different ethnicity, religion, language and culture they have begun to face serious problems. And they begin to learn from our experience, an indirect recognition that our imperfect model is not too bad, after all.

For a long time, preventive detention laws have been the sore point in the Malaysian legal system, more so to foreigners. (Since I am a Judge, I not going to argue whether it is desirable or not. That is a matter of policy for the Government to decide). The Courts in Malaysia accept that it is a valid law, it is not unconstitutional and it was made pursuant to the provisions of the Constitution. In case some of you are not aware if it, such laws were introduced and applied by the British long before Malaysia became independent. The Courts have been very strict in applying those laws. Courts have issued the writ of habeas corpus on the slightest non-compliance with the provisions of the law or regulations thereof, e.g. where only one copy of the form for the detainee to make representation was given to the detainee when the regulation says that two copies should be given.

In view of the post-9/11 events, I have asked myself this question: which is better, to have detailed provisions of the law and regulations governing such detentions or not to have any law at all but such detentions are done all the same? In the first case, there is a right to make representation to an independent tribunal which makes recommendations to the appropriate authority whether the detention should be extended or not. From the day a person is arrested, he may, through his counsel, challenge his arrest and subsequent detention in Court and ask for a writ of habeas corpus to be issued. And, as I have mentioned, the Courts have always been very strict in ensuring that every provision of the law or regulation has been complied with. Such applications are argued in open court, written judgments are handed down and there is a right of appeal right up to the highest Court in the country. In the second case, there is no bad or infamous law, so to speak. But, people are arrested and detained all the same, without trial. What legal remedies do they have? To whom do they make representations? How are they going to argue that their arrests and detentions have not been in compliance with the law or regulation thereof when there is no law or regulation governing their arrests and detentions, in the first place? Well, I am not going to answer these questions. I shall leave them to you to answer them for yourselves.

However, it is worth noting that after 9/11 this “infamous law” too has been a subject of interest, favorably I mean, to the big powers that, for a long time, condemned it. It is also worth noting that, thank God and may be, thanks to a few pre-emptive arrests under that “infamous law” that Malaysia had, so far, been spared of bombing incidents as had happened in other countries. Most of the detainees, if not all, have since been released, the latest being on the eve of Id Fitri (end of the fasting month of Ramadan) last month. And, there have been no allegations ill-treatment, what more torture!

While still on the issue of freedom, I shall mention a few cases on religious freedom. There are only a few of them. I shall take them in chronological order. First, the case of Che Omar Bin Che Soh v. Public Prosecutor (1988) 2 MLJ 55 (S.C.). In that case it was argued that the mandatory death sentence for drug trafficking was against the injunctions of Islam and therefore unconstitutional and void. The then Supreme Court rejected the argument. It held that the term “Islam” or “Islamic religion” in Article 3 of the Federal Constitution in the context means only such acts as relate to rituals and ceremonies.

In Hjh Halimatussaadiah bte. Hj. Kamaruddin v. Public Commission, Malaysia (1994) 3 MLJ 61 (S.C.), Halimatussadiah who was at one time my clerk at the State Legal Advisor’s Office was dismissed from service for wearing the “purdah” that covers her face to work. The wearing of “purdah” to work was prohibited along with jeans, slacks and shorts. She challenged her dismissal, arguing, inter alia, that the regulation was ultra vires Article 11 of the Federal Constitution that guarantees freedom to profess and practice one’s religion. The then Supreme Court dismissed her appeal and held that the prohibition did not affect her constitutional right to practice her religion and that the wearing of the “purdah” had nothing to do with that right.

The most recent case is the case of Meor Atiqulrahman bin Ishak v. Fatimah binti Sihi & 2 Ors. (2006) 4 AMR 557 (F.C.) (I believe it is this case that has brought me here). In that case, three schoolboys aged between 8 to 11 were dismissed from Government School for wearing turban as part of the school uniform to school in contravention with the school regulation. They challenged their dismissal on the ground that the school regulation was ultra vires the Federal Constitution, in particular, Article 11. For the students, it was argued that any law or regulation that restricts any practice of any religion is unconstitutional. For the Attorney General it was argued that a law or regulation is unconstitutional only if it prohibits a practice which is an integral part of a religion, following Indian authorities. The Federal Court dismissed their appeal. In so doing, writing the judgment of the Court, I rejected both the tests. Briefly, this is what I said:

“…….whether or not a practice is or is not an integral part of a religion is not the only factor that should be considered…..I would prefer the following approach. First, there must be a religion. Secondly, there must be a practice. Thirdly, the practice is a practice of that religion….All these having been proved, the court should then consider the importance of the practice in relation to the religion…..

The next step is to look at the extent of the seriousness of the prohibition. A total prohibition certainly should be viewed more seriously than a partial or temporary prohibition……
Then, we will have to look at the circumstances under which the prohibition is made….

…..all these factors should be considered in determining whether the “limitation” or “prohibition” of a practice of a religion is constitutional or unconstitutional under Article 11(1) of the Federal Constitution.”

Regarding the practice of wearing turban, my view was summed up in this short sentence: “Islam is not about turban and beard”. In other words, it is cultural rather than religious.

The reactions to that judgment are interesting. Most, if not all, newspapers in Malaysia carried the news on the front page. The leading English language newspaper devoted the whole of the front page to it. It also came out with an editorial that begins with the following sentence:

“ Federal Court Judge Dato’ Abdul Hamid Mohamad in his landmark judgment on the case of three Muslim pupils expelled for insisting on wearing the serban to school, has done this nation and its Constitution a great service.”

On the other hand, the opposition Islamic Party accused me of insulting Islam. I was told that a police report had also been lodged against me for allegedly insulting the Prophet (p.b.u.h.), I believe, when I said in the judgment:

“Islam is not about turban and beard. The pagan Arabs, including Abu Jahl, wore turbans and kept beards…..

I accept that the Prophet (p.b.u.h.) wore turban. But he also rode a camel, built his house with clay walls and roof of leaves of date palms and brushed his teeth with the twig of a plant. Does that make the riding of a camel a more pious deed than traveling in an aero plane? Is it preferable to build houses and mosques using the same materials used by the prophet (p.b.u.h.) and the same architecture adopted by him during his time? In Malaysia, Muslim houses and mosques would leak when it rains! There would be no Blue Mosque or Taj Mahal, not even the present day Masjid Al-Haram and Masjid Al-Nabawi, Alhambra or Putrajaya that the Muslims can be proud of! Again, is it more Islamic to brush one’s teeth with a twig than using a modern tooth brush with tooth paste and water to wash in the privacy of one’s bathroom?”

I took that approach because, to me, the Constitution is a working document, a living document. The country has to move on. There has to be some order, in school some discipline. In a multi-racial, multi-language, multi-religious and multi-cultural country, the last thing one would like to have, beginning in school, is polarization along those lines. To recognize every claim by everybody that a certain act is his religious practice and any infringement, though partial and temporary, irrespective of the circumstances under which it is made is unconstitutional, would throw the country into chaos: there will be no school, police or army uniform. Even provisions of civil and criminal laws and the provisions of the “Islamic Family Law” itself may be declared unconstitutional because some of the provisions may be contrary to the Shariah (Islamic law) or any of the many religions practiced in Malaysia. So, I laid down the tests to be applied when deciding the issue, based on the facts of each case.

If there is anything that can be learned from the Malaysian experience, I think, it is that there should not be one rigid formula that should be required to be applied under whatever circumstances, be it with regard to justice, democracy, equality, freedom human rights and so on. The basic requirements must be there. But the details, the frills, the approach, the emphasis should be left to the wisdom of the people who are directly affected by the results. Certainly, they know better what is best for them under the circumstances that they are in. They should have some flexibility to make adjustments as circumstances require.

In the final analysis, it is the people that matter, the people who exercise the powers, be it executive, legislative or judicial. Are they honest with themselves in what they do? If they are, the chances of things going wrong are minimal. If they are not, it is already wrong from the word “go”. To me, “transparency” is a poor substitute for “honesty”. “Transparency” is concerned with perception while “honesty” deals with truth. And truth always prevails, often admitted, usually as soon as the people involved retire and write their memoirs, indeed, from recent events, even earlier!

Thank you.
Dato’ Abdul Hamid Mohamad
Judge, Federal Court, Malaysia,
Palace of Justice, Precinct 3,
62506 Putrajaya, Malaysia
[email protected]

CHAN YOCK CHER v. CHAN TEONG PENG

FEDERAL COURT, PUTRAJAYA
AHMAD FAIRUZ, CJ; ABDUL HAMID MOHAMAD, FCJ; PAJAN SINGH GILL, FCJ
CIVIL APPEAL NO: 02-03-2004 (J)
[2005] 4 CLJ 29

CIVIL PROCEDURE: Jurisdiction – Federal Court – Inherent jurisdiction and powers of court – Application under r. 137 Rules of the Federal Court 1995 for judgment to be set aside and for appeal to be reheard – Applicant challenged correctness of judgment on its merits – Principles applicable – Whether application ought to be granted.

By a notice of motion, the applicant, inter alia, prayed for the following orders: (i) that leave be granted for Civil Appeal No: 02-03-2004(J) to be re-heard; (ii) that the judgment of this court delivered on 22 October 2004 be set aside; and (iii) that the execution of the said judgment be stayed pending the final disposal of this court in respect of this motion. The respondent had commenced proceedings in the High Court, praying for specific performance of an agreement and, alternatively, for a declaration that the respondent and/or his nominee was the registered and beneficial owner of 32,630 shares in one Son Huut Plantation Sdn Bhd, and that company secretary register the respondent and/or his nominee as the legal and beneficial owner of the said shares. After subsequent appeals and cross-appeals by both parties, this court declared that the respondent was both the beneficial and legal owner of the said shares, and further ordered the company secretary to register the respondent or his nominee as the “beneficial and registrable owner” of the shares. The applicant, in this instance, was asking this court to set aside that judgment and re-hear the applicant’;s appeal to Federal Court. The applicant, who averred he was making this application pursuant to r. 137 of the Rules of the Federal Court 1995 (‘the RFC’;), admitted he was challenging the correctness of the judgment on its merits.
Held (dismissing the application)
Per Abdul Hamid Mohamad FCJ delivering the judgment of the court:
[1] This court had the jurisdiction to hear this application and the power to make the necessary orders; this jurisdiction and power was inherent in this court and it was reaffirmed by r. 137 of the RFC. From previous cases, it was clear that, so far, this court had only given orders that its previous decisions, judgments or orders were a nullity or invalid because the court giving such decisions, judgments or orders was not properly constituted. However, in the present application, the applicant questioned the findings of this court, both in law and on the facts. These were matters of opinion, and just because this court might disagree (this court did not say that it agreed or disagreed with such findings) with the earlier panel of this court, that did not warrant this court to review the decision. Similarly, regarding the interpretation and application of some provisions of the Companies Act 1965, even if this court disagreed with the earlier panel (again, this court did not say that it agreed or disagreed), that did not warrant this court to set aside the judgment and the order of the earlier panel of this court, and re-hear and review the appeal. Otherwise, there would be no end to a proceeding. It was the unanimous view of this court that this was not the kind of case which previous judgment and order this court should review. If and when, in another case, the same issue of law arose, then, after hearing a full argument, this court might reconsider and decide whether it agreed with its earlier view or not. This court had done that on a number of occasions before.
[Bahasa Malaysia Translation Of Headnotes
Melalui suatu notis usul, pemohon antara lain memohon untuk mendapatkan perintah-perintah berikut: (i) bahawa kebenaran diberi untuk Rayuan Sivil No: 02-03-2004(J) di dengar semula; (ii) bahawa penghakiman mahkamah ini yang disampaikan pada 22 Oktober 2004 diketepikan; dan (iii) bahawa penghakiman yang sama digantung pelaksanaannya sementara menunggu keputusan mahkamah semasa terhadap usul di sini. Responden telah memulakan prosiding di Mahkamah Tinggi memohon pelaksanaan spesifik suatu perjanjian dan, secara alternatifnya, deklarasi bahawa responden dan/atau nomininya adalah pemilik benefisial dan berdaftar kepada 32,630 saham di dalam Son Huut Plantataion Sdn Bhd, serta supaya setiausaha syarikat mendaftarkan responden dan/atau nomininya sebagai pemilik benefisial dan undang-undang saham-saham tersebut. Berikutnya, selepas beberapa rayuan dan rayuan balas oleh pihak-pihak, mahkamah semasa memutuskan bahawa responden adalah pemilik benefisial dan undang-undang saham-saham tersebut, dan seterusnya memerintahkan supaya setiausaha syarikat mendaftarkan responden atau nomininya sebagai “pemilik benefisial yang boleh didaftarkan” saham-saham itu. Pemohon memohon supaya mahkamah semasa mengenepikan penghakiman tersebut dan mendengar semula rayuan pemohon ke Mahkamah Persekutuan. Pemohon, yang mengatakan bahawa ia membuat permohonan di sini di bawah k. 137 Kaedah-Kaedah Mahkamah Persekutuan 1995 (‘KMP’;), mengakui bahawa ia mencabar kesahihan penghakiman di atas meritnya.
Diputuskan (menolak permohonan)
Oleh Abdul Hamid Mohamad HMP menyampaikan penghakiman mahkamah:
[1] Mahkamah ini mempunyai bidang kuasa untuk mendengar permohonan di sini dan juga kuasa untuk membuat perintah-perintah yang perlu; bidang kuasa dan kuasa ini wujud secara semulajadi pada mahkamah ini dan ianya diperkukuhkan oleh k. 137 KMP. Dari kes-kes terdahulu, adalah jelas bahawa, setakat ini, mahkamah ini hanya membuat perintah bahawa keputusan, penghakiman atau perintah-perintah terdahulunya adalah batal atau tidak sah disebabkan sidang mahkamah yang membuat keputusan, penghakiman atau perintah tersebut tidak ditubuhkan dengan sewajarnya. Sebaliknya, dalam permohonan semasa, pemohon telah mempersoalkan keputusan mahkamah ini atas kedua-dua perkara fakta dan undang-undang. Ini adalah soal pendapat, dan cuma kerana mahkamah ini tidak sependapat (mahkamah ini tidak mengatakan bahawa ia bersetuju ataupun tidak bersetuju dengan keputusan-keputusan tersebut) dengan panel terdahulu mahkamah ini, ianya tidak bermakna bahawa kami boleh mengkaji semula keputusan panel terdahulu itu. Begitu juga dengan soal pentafsiran dan pelaksanaan beberapa peruntukan tertentu Akta Syarikat 1965. Jikapun mahkamah ini tidak bersetuju dengan panel terdahulu (sekali lagi, kami tidak menyatakan kami bersetuju atau tidak bersetuju), itu tidak mewajarkan kami mengenepikan penghakiman dan perintah panel terdahulu tersebut, serta mendengar atau mengkaji semula rayuan. Jika begitulah keadaannya, maka tidak adalah kemuktamadan dalam prosiding. Menjadi keputusan sebulat suara mahkamah ini bahawa kes di sini bukanlah suatu kes di mana penghakiman dan perintah terdahulunya harus dikaji semula oleh mahkamah ini. Jika dan bila, di dalam suatu kes yang lain, isu undang-undang yang sama berbangkit, maka mahkamah ini mungkin akan mempertimbang dan memutuskan sama ada kami bersetuju atau tidak dengan keputusan terdahulu kami, setelah mendengar sepenuhnya hujah-hujah. Mahkamah ini telah beberapa kali berbuat demikian pada masa-masa lalu.]

Case(s) referred to:
Adorna Properties Sdn Bhd v. Kobchai Sosothikul [2005] 1 CLJ 565 FC (foll)
Allied Capital Sdn Bhd v. Mohd Latiff Shah Mohd & Another Applicant [2004] 4 CLJ 350 FC (refd)
Asia Commercial Finance (M) Bhd v. Kawal Teliti Sdn Bhd [1995] 3 CLJ 783 SC (refd)
Badiaddin Mohd Mahidin & Anor v. Arab-Malaysian Finance Bhd [1998] 2 CLJ 75 FC (refd)
Chan Yock Cher v. Chan Teong Peng [2004] 4 CLJ 533 FC (refd)
Chia Yan Tek & Anor v. Ng Swee Kiat & Anor [2001] 4 CLJ 61 FC (refd)
Gan Sin Tuan v. Chew Kian Kor [1957] 1 LNS 24; [1958] 24 MLJ 62 (refd)
Dato’; Seri Anwar Ibrahim v. PP [2004] 4 CLJ 157 FC (refd)
Government of Malaysia v. Jasanusa Sdn Bhd [1995] 2 CLJ 701 SC (refd)
Hawks v. Mc Arthur & Ors [1951] 1 All ER 22 (refd)
Hunter v. Hunter [1936] AC 222 (refd)
Kesultanan Pahang v. Sathask Realty Sdn Bhd [1998] 2 CLJ 559 FC (refd)
Lee Thye Sang & Anor v. Faber Merlin (M) Sdn Bhd & Ors [1985] 2 CLJ 423; [1985] CLJ (Rep) 196 SC (refd)
Megat Najmuddin Dato’; Seri (Dr) Megat Khas v. Bank Bumiputra (M) Bhd [2002] 1 CLJ 645 FC (refd)
MGG Pillai v. Tan Sri Dato’; Vincent Tan Chee Yioun [2002] 3 CLJ 577 FC (refd)
Muniandy Thamba Kaundan & Anor v. Development & Commercial Bank Bhd & Anor [1996] 2 CLJ 586 (FC) (refd)
Phileoallied Bank (Malaysia) Bhd v. Bhupinder Singh Avatar Singh & Anor [2002] 2 CLJ 621 FC (refd)
Puah Bee Hong & Anor v. Pentadbir Tanah Daerah Wilayah Persekutuan Kuala Lumpur & Anor & Another Case [1994] 2 CLJ 705 SC (refd)
R Rama Chandran v. The Industrial Court of Malaysia [1997] 1 CLJ 147 FC (refd)
Raja Zainal Abidin Raja Tachik & Ors v. British-American Life & Gen – Eral Insurance Bhd [1993] 3 CLJ 606 SC (refd)
Scotch Leasing Sdn Bhd v. Chee Pok Choy & Ors [1997] 2 CLJ 58 FC (refd)
Sing Eng (Pte) Ltd v. PIC Property Ltd [1990] 1 LNS 58; [1990] 3 MLJ 129 (refd)
Tuan Hj Ahmed Abdul Rahman v. Arab-Malaysian Finance Bhd [1996] 1 CLJ 241 FC (refd)
United Malayan Banking Corporation Bhd v. Palm and Vegetable Oils (M) Sdn Bhd & Ors [1994] 3 CLJ 144 SC (refd)
Wong Sin Chong & Anor v. Bhagwan Singh & Anor [1993] 4 CLJ 345 SC (refd)
Zainur Zakaria v. PP [2001] 3 CLJ 673 FC (refd)

Legislation referred to:
Companies Act 1965, ss. 6A(6), 15
Courts of Judicature Act 1964, ss. 69, 78, 94(2)
Federal Constitution, arts. 121(1), 128(3)
Rules of the Court of Appeal 1995, r. 102
Rules of the Federal Court 1995, r. 137
Rules of the High Court 1980, O. 81, O. 92 r. 4
Rules of the Supreme Court 1980, r. 163
Counsel:
For the appellant – Maniam Raju (Asmawi Ismail & Indran Guru with him); M/s Ng, Fan & Assoc.
For the respondent – Wong Kim Fatt (Tho Kam Chew & Tng Poh Ying with him);M/s Gulam & Wong.

Reported by Suresh Nathan

Case History:
Federal Court :[2004] 4 CLJ 533
Court Of Appeal :[2003] 3 CLJ 512

JUDGEMENT
Abdul Hamid Mohamad FCJ:
By a notice of motion dated 17 December 2004, the applicant, inter alia, prayed for the following orders:
1. That leave be granted that Civil Appeal No. 02-03-2004 (J) be re-heard;
2. That the judgment of this court delivered on 22 October 2004 be set aside.
3. That the execution of the said judgment be stayed pending the final disposal of this court in respect of this motion.
To give a brief history of the case, the respondent commenced proceedings in the High Court, Johor Bahru praying for specific performance of an agreement dated 16 December 1995 and, alternatively, for a declaration that the respondent and/or his nominee is the registered and beneficial owner of 32,630 shares in Son Huut Plantation Sdn. Bhd. (“SHP”) and that the company secretary registers the respondent and/or his nominee as the legal and beneficial owner of the said shares.
The respondent then applied for a summary judgment pursuant to O. 81 of the Rules of the High Court 1980 (“RHC 1980”).
The High Court made an order declaring that the respondent or his nominee was the beneficial owner of the said shares but dismissed the prayer that the company secretary registers the shares in the name of the respondent or his nominee on the ground that the secretary was not made a party.
The applicant then appealed to the Court of Appeal. The respondent also cross-appealed against the refusal of the High Court to direct the company secretary to register the said shares in the name of the respondent or his nominee. On 3 April 2002, the Court of Appeal dismissed both the applicant’;s appeal and the respondent’;s cross appeal.
On 3 March 2004, this court granted the applicant leave to appeal to this court on the following question:
whether the beneficial interest (but not the legal interest) in the shares of a private limited company can pass from a Vendor to the Purchaser upon the disposal of the said shares in non-compliance with the restriction on transfer of share provisions contained in the article of association of the said private limited company i.e. the shares must be offered to the existing members of the company before it may be transferred to a non-member of the company.
On 17 March 2004, the respondent filed a notice of cross-appeal.
The appeal was heard by this court on 15 July 2004. On 22 October 2004, this court delivered its judgment wherein the applicant’;s appeal was dismissed with costs and the respondent’;s cross-appeal was allowed with costs. This court thus declared that the respondent was both the beneficial and legal owner of the said shares and further ordered the company secretary to register the respondent or his nominee as the “beneficial and registrable owner” of the shares. The judgment of this court was reported in [2004] 4 CLJ 533.
It is that judgment of this court that the applicant is asking this court to set aside and that the appeal be re-heard.
Learned counsel for the applicant listed a number of “errors in law and or errors in law and fact” in the judgment of this court dated 22 October 2004 as grounds to support this application. They are, in brief:
(1) This court failed to consider that the agreement in question was a bilateral contract and therefore could not involve third parties including the other shareholders of SHP.
(2) This court failed to consider that the share certificates in question were deposited with the respondent as a collateral or pledge to secure the repayment of RM270,000 paid by the respondent to the applicant for the purchase of 8,039 shares in Chan Tiong Kwai Realty Sdn. Bhd. (“CTK”).
(3) The court erred in law in relying on s. 6A(6) of the Companies Act 1965 without considering properly whether the said section was applicable to a private limited company.
(4) This court failed to consider that s. 15 of the Companies Act 1965 was applicable to the case and not s. 6A(6).
(5) This court only took into consideration the case of Hawks v. Mc Arthur & Ors. [1951] 1 All ER 22 (High Court, Chancery Division) but failed to considerHunter v. Hunter [1936] AC 222 (HL), Sing Eng (Pte) Ltd. v. PIC Property Ltd[1990] 1 LNS 58; [1990] 3 MLJ 129 (CA Singapore) and Gan Sin Tuan v. Chew Kian Kor [1957] 1 LNS 24; [1958] 24 MLJ 62 (CA, Malaya).
(6) This court made a wrong finding of fact that the applicant had offered the said shares to the other shareholders.
(7) This court made a wrong finding of fact that the applicant had obtained the consent of the board of directors to transfer the said shares to the respondent.
(8) This court had committed a breach of natural justice in that the court had ordered the registration of the shares in the name of the respondent or his nominee without hearing the other shareholders of the company who were not parties to the proceedings. This has resulted in serious injustice to them.
(9) The judgment has wide ranging repercussions and “may not be consistent with other apex court authorities which were decided in our country or in the Commonwealth…”
From the grounds listed by the applicant, it can be seen that the applicant is questioning the correctness of the judgment in law and on facts. In other words, the applicant is questioning the judgment on merits. Questioned by the court at the beginning of his submission learned counsel for the applicant admitted that he was not challenging the validity of the constitution of the court that heard the appeal. In fact, he admitted that he was challenging the correctness of the judgment on merits. In fact, whether he admits it or not, that is our view.
Regarding the law under which he made this application, learned counsel said that he was making this application pursuant to r. 137 of the Rules of the Federal Court 1995 (“RFC 1995”).
Regarding the law, it must be noted that neither the Federal Constitution nor the Courts of Judicature Act 1964 (“CJA 1964”) provides that this court has jurisdiction to set aside its earlier decision or judgment and to direct that the case (or appeal) be re-heard, re-considered and re-decided. The provision that is usually relied on, as in this case, is r. 137 of the RFC 1995 which provides:
137 Inherent powers of the Court
For the removal of doubts it is hereby declared that nothing in these Rules shall be deemed to limit or affect the inherent powers of the Court to hear any application or to make any order as may be necessary to prevent injustice or to prevent an abuse of the process of the Court.
Of late, this rule has received a lot of attention and a lot of importance has been attributed to it. See, for example, Chia Yan Tek & Anor v. Ng Swee Kiat & Anor [2001] 4 CLJ 61 FC, Megat Najmuddin Dato’; Seri (Dr) Megat Khas v. Bank Bumiputra (M) Bhd. [2002] 1 CLJ 645 FC, MGG Pillai v. Tan Sri Dato’; Vincent Tan Chee Yioun [2002] 3 CLJ 577, Dato’; Seri Anwar bin Ibrahim v. Public Prosecutor [2004] 4 CLJ 157 FC, Allied Capital Sdn. Bhd. v. Mohd. Latiff bin Shah Mohd. & Another Applicant [2004] 4 CLJ 350 FC and Adorna Properties Sdn. Bhd. v. Kobchai Sosothikul [2005] 1 CLJ 565 FC.
Our first comment is that we should always bear in mind that that rule is a general rule to be found at the end of the RFC 1995 which contains rules of procedure for use in the Federal Court. RFC 1995 provides for rules of procedure to be followed in and by the Federal Court, including what kind of applications may be made, how and when; how an appeal is to be lodged, prepared for the hearing, heard and how the judgment is to be pronounced and so on. These are all matters of procedure. Then, as in the case of the RHC 1980, O. 92 r. 4, a general provision is inserted to declare that nothing in the RFC 1995 “shall be deemed to limit or effect the inherent powers of the Court to hear any application or to make any order..” In other words, it clarifies that whatever inherent powers the court has is preserved.
So, in our view, it is not quite right to say that r. 137 “confers” or “gives” inherent powers to the Federal Court as has been said in a number of cases eg,Megat Najmuddin (supra), Chia Yan Teck (supra), Allied Capital Sdn. Bhd. (supra), MGG Pillai (supra) and Adorna Properties Sdn. Bhd. (supra). In any event, r. 137 not only assumes but confirms that the Federal Court has such inherent powers, otherwise there is nothing to preserve.
In fact, a similar view has been expressed by Edgar Joseph Jr. FCJ in R. Rama Chandran v. The Industrial Court of Malaysia [1997] 1 CLJ 147:
In my view, O. 92 r. 4 is a unique rule of court for while it neither defines nor gives jurisdiction, yet it serves as a reminder and confirmation – lest we forget – of the common law powers of the court, which are residuary or reserve powers and a separate and distinct source of jurisdiction from the statutory powers of the court.
In other words, even without O. 92 r. 4, the inherent powers of High Court would still be there. In the United Kingdom, for instance, there is no provision in the Supreme Court Rules, equivalent to our O. 92 r. 4, yet the inherent powers occupy a position of great importance in the High Court there as the article by Sir Jack Jacob amply demonstrates. And, the Court of Appeal there also exercises an inherent jurisdiction (see Aviagents v. Balstravest Investment Ltd. [1966] 1 WLR 150) notwithstanding the absence of any provision in any written law or rule of court providing for inherent powers.
Similarly, I have no doubt that in this country, the Court of Appeal and the Federal Court also exercise inherent jurisdiction.
Two points should be noted here. First, the learned judge was talking about the inherent powers of the High Court even without the provision of O. 92 r. 4 of the RHC 1980, in spite of the provision of art. 121(1) of the Federal Constitution. We shall elaborate on this later.
Secondly, the learned judge said that he had no doubt “that in this country, the Court of Appeal and the Federal Court also exercise inherent jurisdiction.”
In Megat Najmuddin (supra) Steve Shim CJ (Sabah and Sarawak) was of the view that the “the Federal Court also has the inherent jurisdiction under the common law to deal with cases with a view to preventing injustice in limited circumstances.”
There are numerous judgments of the courts in the country on inherent jurisdictions of the courts, especially of the High Courts, whether decided prior to or after art. 121(1) was amended by Act A 740 that came into force from 10 June 1988 in which the words “there shall be” were substituted for the words “Subject to cl. (2) the judicial power of the Federation shall be vested in cl. (1).” Confining to the judgments of this court and the Supreme Court, the following are some of them: Phileoallied Bank (Malaysia) Bhd. v. Bhupinder Singh Avatar Singh & Anor [2002] 2 CLJ 621 (FC),Zainur Zakaria v. PP [2001] 3 CLJ 673 (FC), Kesultanan Pahang v. Sathask Realty Sdn. Bhd. [1998] 2 CLJ 559 (FC) Badiaddin Mohd. Mahidin & Anor v. Arab-Malaysian Finance Bhd. [1998] 2 CLJ 75 (FC), Scotch Leasing Sdn. Bhd. v. Chee Pok Choy & Ors [1997] 2 CLJ 58 (FC), Tuan Haji Ahmed Abdul Rahman v. Arab-Malaysian Finance Berhad [1996] 1 CLJ 241, Muniandy a/l Thamba Kaundan & Anor v. Development & Commercial Bank Berhad & Anor [1996] 2 CLJ 586 (FC), Government of Malaysia v. Jasanusa Sdn. Bhd [1995] 2 CLJ 701 (SC),Asia Commercial Finance (M) Bhd. v. Kawal Teliti Sdn. Bhd. [1995] 3 CLJ 783 (SC), United Malayan Banking Corporation Bhd. v. Palm and Vegetable Oils (M) Sdn. Bhd. & 3 Ors. [1994] 3 CLJ 144 (SC), Puah Bee Hong @ Bee Hong (F) & Anor v. Pentadbir Tanah Daerah Wilayah Persekutuan Kuala Lumpur & Anor (Robert Teo Keng Tuan, Intervener) & Another Case [1994] 2 CLJ 705 (SC),Raja Zainal Abidin Raja Tachik & Ors v. British-American Life & Gen – Eral Insurance Bhd [1993] 3 CLJ 606 SC, Wong Sin Chong & Anor. v. Bhagwan Singh & Anor. [1993] 4 CLJ 345 (SC)
We shall only discuss three of the above-mentioned cases.
In Tuan Haji Ahmed Abdul Rahman v. Arab Malaysian Finance Berhad [1996] 1 CLJ 241 at p. 253 this court, inter alia, said:
We would add that under its inherent jurisdiction to prevent an abuse of its proceedings, the Court has power to set aside a judgment in default, despite the defendant’;s application being out of time if the particular circumstances of the case require the intervention of the Court.
It is true that this court in that case was referring to the inherent jurisdiction of the High Court to set aside a default judgment of that court. However, it reaffirms that even the High Court has inherent jurisdiction. This, if we may add, is in spite of the provisions of art. 121(1) that clearly says that “.. The High Courts.. shall have such jurisdiction and powers as may be conferred by or under federal law.” In this respect, it should be noted that art. 128(3) that talks about jurisdiction of the Federal Court is differently worded, thus:
(3) The jurisdiction of the Federal Court to determine appeals from the Court of Appeal, a High Court or a judge thereof shall be such as may be provided by federal law.
First, this provision talks only about “jurisdiction” but not “powers”. Secondly, it is only in respect of appeals, ie, which appeals may come from the Court of Appeal and which appeals may come direct from the High Court or the judge thereof, all of which as may be provided by federal law. Unlike art. 121(1), art. 128(3) does not talk about the general jurisdictions and powers of the Federal Court, nor about applications or orders.
In Muniandy a/l Thamba Kaundan & Anor v. Development & Commercial Banks Berhad & Anor [1996] 2 CLJ 586 (FC) this court again reaffirmed the High Court’;s inherent jurisdiction to set aside an order made by it which is a nullity.
In Badiaddin Mohd. Mahidin & Anor v. Arab Malaysian Finance Bhd. [1998] 2 CLJ 75 (FC) all the judges in their separate judgments talked about the inherent jurisdiction of the High Court to set aside its own order where it “can be proved to be null and void on the ground of illegality or lack of jurisdiction” per Mohd. Azmi FCJ “even in the absence of an express enabling provision,” per Gopal Sri Ram JCA and “to stay any proceeding (which includes an order of execution) which is an abuse of process,” per Peh Swee Chin FCJ.
So, if the High Court, in spite of the provision of art. 121(1) of the Federal Constitution still has inherent jurisdiction and powers, what more the Federal Court? It is our view therefore, that this court has the inherent jurisdiction and powers, including the jurisdiction to hear this application and the power to make the necessary orders. This jurisdiction and power is inherent in this court and it is reaffirmed by r. 137 RFC 1995.
The question then is under what circumstances should it be exercised?
In Lee Thye Sang & Anor v. Faber Merlin (M) Sdn. Berhad & Ors [1985] 2 CLJ 423; [1985] CLJ (Rep) 196 (SC), the applicants applied by motion for an order that the judgment of the Supreme Court in civil appeals, in which they were respondents, be reviewed. The applicants invoked the provision of s. 69, in particular sub-sections (3) and (4) of the CJA 1964 to support their application that the Supreme Court had such a power.
The Supreme Court dismissed the application. Delivering the judgment of the court, Abdul Hamid CJ (Malaya) (as he then was), inter alia, said:
The question before the Court is, therefor, whether sub-section (4) can be construed to confer an unlimited power on the Supreme Court to review, meaning to re-open, re-examine and reconsider with a view to correction, variation, alteration or reversal, if necessary, an earlier decision in an appeal that has already been heard and disposed of.
Our view is that there is no merit in the contention made by the applicants. Sub-section (4) of the Act cannot be construed to mean that it confers unlimited power upon the Supreme Court to re open, re-hear or re-examine, if necessary, to reverse or set aside a judgment given in an appeal already heard and disposed of by it. So to construe would indeed not only be contrary to the clear meaning to the words used in section 69 but also contrary to Article 128(1) of the Federal Constitution.
Article 128(3) states that “the jurisdiction of the Supreme Court to determine appeals from a High Court or a judge thereof shall be such as may be provided by federal law.”
The Courts of Judicature Act 1964 is such a law made pursuant to cl. (3) of art. 128.
With respect to appeals, s. 41 of the Act provides that appeals shall be decided in accordance with the opinion of the majority of judges composing the court. Read in the light of s. 67(1), the jurisdiction of the Supreme Court in regard to civil appeals shall specifically be to hear an appeal from any judgment or order of any High Court. There is certainly no provision which confers jurisdiction on a Supreme Court to hear and determine appeals from a decision given in an appeal it has already heard and disposed of.
Where, therefore, a final decision has been delivered, an appeal is in effect heard and disposed of. In other words, it is brought to a final conclusion. And that being the case, the Supreme Court has no power to re-open, re-hear and re-examine its decision for whatever purpose. The only exception where there can be a re-hearing is only to the extent provided by section 42, in particular sub-section (3) of section 42. The other exception is as provided under section 44 sub-section (3) to the effect that every order such as that envisaged in sub-section (1) of section 44 may be discharged or varied by the full Court.
It is important to note that the court went so far as to invoke the provision of art. 128(3) of the Federal Constitution which was substantially the same as it is now except for the modification arising from the creation of the Court of Appeal in rejecting the argument that s. 69(4) conferred such power to the court. Again, except for the cosmetic changes made to s. 69 as a result of the creation of the Court of Appeal, the substantive provision of s. 69 remains the same.
It is also to be noted that at that time there was no provision in the Rules of the Supreme Court 1980 equivalent to r. 137 RFC 1995. Instead, there was r. 163 (“Effect of Non-Compliance”) which was exactly the same as r. 102 of the Rules of the Court of Appeal 1995 (“RCA 1995”). In fact, with the creation of the Court of Appeal, r. 163 was transferred to the RCA 1995 as r. 102.
In any event, that case shows the attitude of the court towards an application to review a decision of the court in the same appeal.
Chia Yan Tek & Anor v. Ng Swee Kiat & Anor [2001] 4 CLJ 61 is a judgment of this court. The judgment in that case was delivered on 10 August 2001. In that case, the judgment of this court allowing the appeal from the Court of Appeal was pronounced by the deputy registrar on 22 December 2000. But, as on that day, out of the three judges who heard the appeal, two of them had retired, leaving only one. This court held that as the effective date of the judgment was the date of its pronouncement in open court ie, 22 December 2000 and as on that day only one out of the three judges who heard the appeal was still in service (the other two having retired earlier), the court was not properly constituted. So, the application to set aside the order of 22 December 2000 was allowed.
Mohd. Dzaiddin CJ, in his judgment which was agreed to by the other two judges used the term “as may be necessary to prevent injustice.”
The next case is MGG Pillai v. Tan Sri Vincent Tan Chee Yioun [2002] 3 CLJ 577. The judgment was delivered on 16 May 2002. In that case, this court heard the appeal on 12 and 13 January 1998 and judgment was reserved. On 12 July 2000, the judgment of the court by Eusoff Chin, the then Chief Justice and also the presiding judge, was read out by the senior assistant registrar. At the time of the delivery of the judgment, Chong Siew Fai CJ (Sabah & Sarawak) had retired from the bench. He retired on 2 July 2000. Both he and Wan Adnan, the then Chief Judge (Malaya), the other member of the panel, had intimated their approval to the written judgment of the Chief Justice. The applicant applied by way of motion to set aside the judgment on the grounds that: (i) the judgment was invalid as it was delivered by an improperly constituted court; and (ii) the judgment was tainted by apparent bias on the part of the presiding judge. The respondent responded by filing a motion to strike out the applicant’;s motion on the ground of irregularities.
This court, by a majority, allowed the applicant’;s application and dismissed the respondent’;s application. In other words, the judgment of this court pronounced on 12 July 2000 was set aside. Both Siti Norma Yaakob FCJ and Haidar Mohd. Noor FCJ (as they then were) held that the effective date of the judgment was the date of its pronouncement in open court. The court followed Chia Yan Tek (supra), and held that since there were only two judges remaining on that day, and as no consent was given by the parties to the proceedings pursuant to the requirement of the pre-amended s. 78 of the Courts of Judicature Act 1964 (“CJA 1964”) which was the law applicable in that case, for the proceedings to be continued by the remaining two judges, the judgment “was ineffective and invalid as the court was not properly constituted,” per Siti Norma Yaakob FCJ of the law report.
Steve Shim (CJ Sabah and Sarawak), in his judgment, was more elaborate. He said:
… I hold the view that the Federal Court does have the inherent jurisdiction and power which can be invoked in limited circumstances to reopen, rehear and reexamine its previous judgment, decision or order which has been obtained by fraud or supression of material evidence so as to prevent injustice or an abuse of the process of the court.
Siti Norma Yaakob FCJ talked about “whether an injustice has been done.. or whether an abuse of the process of the court has been committed.” The learned judge concluded, on the facts:
Since the applicant’;s accrued interest has been violated in this case leading to a miscarriage of justice, it follows that he is entitled to have his appeal reheard before another panel of this court.
Haidar FCJ also talked about “injustice” and held that the judgment was invalid.
In Dato’; Seri Anwar bin Ibrahim v. Public Prosecutor [2004] 4 CLJ 157 (FC) four motions were filed. In the first motion, the applicant asked this court to invoke its inherent powers under r. 137 of the RFC 1995 to set aside convictions and sentences of the applicant that were confirmed by this court earlier when the appeal from the court of appeal was heard. The second motion was for the court to allow fresh/additional evidence affecting the trial to be adduced. The third motion was for leave for applicant to be allowed to rely on five additional grounds. The fourth motion was for leave for the applicant to rely on another additional ground on the ground that s. 94(2) of the CJA 1964 was unconstitutional and void.
At the commencement of the hearing of the motion, the respondent raised a preliminary objection on the first motion that the court did not have the necessary jurisdiction to re-litigate on such appeals.
The court overruled the preliminary objections, holding that it had jurisdiction to hear the motions, proceeded to hear the motion and dismissed them.
The point to be noted is that the ruling regarding jurisdiction was in respect of hearing the motions. The motions were dismissed after hearing them. It is not a case where the court having granted leave to re-hear the appeal, set aside the conviction and sentence, re-heard the appeal and then re-confirmed the conviction and sentence.
Abdul Malek Ahmad PCA who wrote the judgment on the preliminary objection stuck to the words of rule 137 ie, “to prevent injustice or to prevent an abuse of the process of the court.”
In Allied Capital Sdn. Bhd. v. Mohd. Latiff bin Shah Mohd. & Another Application [2004] 4 CLJ 350, the applicants whose appeal to the Court of Appeal was dismissed after it was heard, applied to the Federal Court for leave to appeal to the Federal Court. The leave application was heard and dismissed by the Federal Court. Subsequently the applicants filed two separate notices of motion, inter alia, praying that the order of the Federal Court dismissing the leave application be set aside and that they be given leave to appeal to the Federal Court against the order of the Court of Appeal. The respondents then applied to strike out the applicants’; motions on a number of grounds, including that the Federal Court had no jurisdiction or power to set aside its order refusing leave to appeal or to re-hear the application.
The court, by a majority, held that the Federal Court had jurisdiction to hear the applications and that the “application proper” should be fixed for hearing accordingly. On the test to be applied, the majority judgment also reiterated the words used in r. 137. The minority judgment reached a different conclusion because it considered the merits of the application.
The most recent decision of this court on the issue is Adorna Properties Sdn. Bhd. v. Kobchai Sosothikul [2005] 1 CLJ 565 (FC). That was also an application pursuant to r. 137 RFC 1995 to set aside an order of the Federal Court made on 22 December 2000, after hearing the appeal and for the appeal be re-heard by the court. The ground advanced was “interest of justice”. Prior to this application, there was an earlier application (“the first application”) by the same applicant on the ground that one of the judges had retired before the judgment was delivered. The first application was dismissed. This court dismissed the application (the second application).
P.S. Gill FCJ, delivering the judgment of the court, inter alia, gave the following reasons:
Firstly, although the consequence and effect of the main judgment may be harsh when viewed without the benefit of the relevant statutory provision, we do not think this is a case where ‘grave injustice had occasioned’; due to clear infringement of any principle of law thereby making it permissible for successive application to be made under the said rule. Without going into the merits of this application we find that the substance of the main judgment revolves in the interpretation of s. 340 subsection (3) including the proviso thereof of the National Land Code…
And having read the reasoning therein and bearing in mind the words used in the said subsection including the proviso we are not convinced that the interpretation given in the main judgment is patently wrong thereby resulting in grave injustice thus warranting successive application under r. 137. And even if we are wrong our view it should be left to another occasion to further debate on the issue. For now we are of the opinion that despite the concession made by learned counsel for the respondent on the issue of successive application this is not a proper case for us to proceed to hear the merits or to grant the order as sought for.
Secondly, there is much force to be given to the contention that there should be finality to any litigation. The main judgment was handed down by this Court which is the apex court of this country. If the application of r. 137 is made liberally the likely consequence would be chaos to our system of judicial hierarchy. There would then be nothing to prevent any aggrieved litigant from challenging any decision of this court on the ground of ‘injustice’; vider. 137. And if he succeeds in his application there is also nothing to bar the other party from making his own application to overturn such success. In short, there will be no end to the matter. We do not think that was the intention of the legislature when promulgating the said rule.
Thirdly, this present application is weakened by the fact that there was the first application heard and dismissed by this court. And it was never suggested that the ground advanced in this application was not available then. The only reason given before us was ‘human error’;. We do not think that is sufficient for us to overlook the implication that to allow this application would tantamount to permitting the applicant to advance his grievances by instalment.
Fourthly, there is also the element of delay on the part of the applicant. The first application was made in 2001 and after its disposal there was a lapse of almost 18 months before the present application was filed on 12 July 2002. Thus not only the grounds were submitted by way of instalment, there was delay as well. We do not think this court should condone, let alone encourage, such an attitude. A court of law is duty-bound to ensure that the interests of all parties appearing before it are equally safeguarded. Public interest expects it. And it would be highly undesirable and prejudicial to a successful litigant to be kept in limbo while the unsuccessful party ponders as to his next course of action.
This present application is therefore dismissed with costs. Preliminary objection sustained.
P.S. Gill FCJ, who delivered the judgment of the court used the term “grave injustice had occasioned” but held that that was not such a case.
This case clearly shows the reluctance of this court to set aside its previous order made after the appeal was fully heard even though the first application that had been dismissed was grounded on “coram failure” as one of the judges had retired prior to the delivery of the judgment in the appeal, a situation which appears to be similar to Chia Yan Tek (supra).
From the cases, it is clear that, so far, this court had only given orders that its previous decisions, judgments or orders be set aside and ordered that the appeals be re-heard when such decisions, judgments or orders were a nullity or invalid because the court giving such decisions, judgments or orders was not properly constituted.
We do not say that the circumstances under which this court would set aside its previous decisions, judgments or orders and for the re-hearing of the appeals are closed. Neither do we intend to list down the circumstances that warrant such an order. However, to give two examples, there may be jurisdictional error, for example, where the court inadvertently heard and decided on an appeal which, in law, is patently not appealable to this court, or due to illegality where this court inadvertently imposed a sentence unknown in law or in excess of the maximum sentence permissible by law.
On the other hand, no leave to review should be given where the previous order is challenged on its merits, whether on facts or in law. Merely because the panel hearing the application is of the view that an important piece evidence had not been given sufficient weight or that the current panel disagrees with the interpretation or application of a certain provision of the law is not a sufficient reason for the court to set aside its previous order.
The reasons have been amply stated by this court in Adorna Properties Sdn. Bhd. (supra) with which we fully agree. The only other reason we would like to add is that to freely allow previous orders to be reviewed would lead to “panel shopping”. An unsuccessful party in an appeal may try its luck before another panel that may disagree with the view of the earlier panel. If he is successful in having the order reversed, the other party will do the same thing again. Certainly, we would not like to see this apex court becoming a circus that repeats the same show again and again.
Coming back to the present application. It has been seen that the applicant questions the findings of this court both in law and on facts. These are matters of opinion. Just because we may disagree (we do not say whether we agree or disagree with such findings) with the earlier panel of this court, that is not a ground that warrants us to review the decision. Similarly, regarding the interpretation and application of some provisions of the Companies Act 1965, even if we disagree with the earlier panel (again we do not say whether we agree or disagree) that does not warrant us to set aside the judgment and the order of the earlier panel of this court and re-hear and review the appeal. Otherwise, as has been said, there would be no end to a proceeding.
In conclusion, it is our unanimous view that this is not the kind of case that this court should review its previous judgment and order. If and when, in another case, the same issue of law arises, then, after hearing a full argument, this court may reconsider and decide whether it agrees with its earlier view or not. This court had done that on a number of occasions before.
For these reasons, we dismissed the application with costs and ordered that the deposit be paid to the respondent on account of taxed costs.

LEE KEW SANG v. TIMBALAN MENTERI DALAM NEGERI, MALAYSIA & ORS
FEDERAL COURT, PUTRAJAYA
AHMAD FAIRUZ, CJ;   SITI NORMA YAAKOB, CJ (MALAYA);   ABDUL HAMID MOHAMAD, FCJ
CRIMINAL APPEAL NO: 05-23-2004 (J)
PREVENTIVE DETENTION: Detention order – Detention under Emergency (Public Order and Prevention of Crime) Ordinance 1969 – Amendments to Emergency (Public Order and Prevention of Crime) Ordinance 1969, effects of – Whether grounds to challenge detention order restricted – Emergency (Public Order and Prevention of Crime) Ordinance 1969, ss. 4(1), 7C, 7D; Emergency (Public Order and Prevention of Crime)(Amendment) Act 1989

PREVENTIVE DETENTION: Detention order – Application for habeas corpus – Whether grounds for application restricted to grounds of non-compliance with procedural requirements only

PREVENTIVE DETENTION: Detention order – Application for habeas corpus – Approach of courts – Determination of non-compliance – Whether courts may create new procedural requirements

PREVENTIVE DETENTION: Detention order – Application for habeas corpus – Grounds for habeas corpus – Whether Minister obliged to consider whether Criminal prosecution ought to be taken against detenu first – Whether Minister obliged to issue detention order within certain time-frame – Emergency (Public Order and Prevention of Crime) Ordinance 1969, ss. 4(1), 7C, 7D

PREVENTIVE DETENTION: Detention order – Power of Minister – Not to be confused with power of Attorney-General – Whether power of Minister to issue detention order distinct from power of Attorney-General to institute Criminal proceedings

PREVENTIVE DETENTION: Detention order – Power of Minister – Judicial review of Minister’s decision to issue detention order – Whether grounds for review restricted to grounds of non-compliance only

The appellant was detained under a detention order issued by the Deputy Minister of Home Affairs Malaysia (‘the Deputy Minister’), the first respondent, pursuant to s. 4(1) of the Emergency (Public Order and Prevention of Crime) Ordinance 1969 (“the Ordinance”). He applied for the issuance of a writ of habeas corpus, contending that the order was invalid on the following grounds: (i) the Deputy Minister did not consider whether criminal prosecution ought to be taken against him; and (ii) the ground of detention was stale and remote in point of law to support his detention under the Ordinance. At first instance, the application was dismissed. The appellant thus appealed to the Federal Court. In the Federal Court, the Justices expressed concern that similar cases involving challenges to detention under the Ordinance; the Internal Security Act 1960 (‘ISA 1960’); and the Dangerous Drugs (Special Preventive Measures) Act 1985 (‘DD (SPM) Act 1985’), were often decided without reference to relevant statutory provisions with the result that material statutory amendments were not given effect. In determining the appeal, the Justices found it necessary to emphasize the importance of several statutory amendments relating to judicial review in those statutes, specifically the amendments relating to the Ordinance.

Held (dismissing the appeal)

Per Abdul Hamid Mohamad FCJ:

[1] The Ordinance was amended by the Emergency (Public Order and Prevention of Crime) (Amendment) Act 1989 (‘Act A740’) which came into force on 24 August 1989. Similar amendments were also made to the ISA 1960 and the DD (SPM) Act 1985, respectively by Act A739 and Act A738. Act A740, inter alia, inserted new ss. 7C and 7D into the Ordinance, which clearly restricted challenges to detention orders made by the Minister under s. 4(1) of the Ordinance to grounds of non-compliance with any procedural requirement, and nothing else.

[2] The cases decided prior to the amendments, ie, 24 August 1989, showed various grounds upon which the detention orders were challenged. Mala fide appeared to be the most important ground. Courts seemed to place lesser importance on procedural non-compliance unless the requirement was mandatory in nature. However, the amendments appear to have reversed the position by limiting the ground to only one ground – non-compliance with procedural requirements.

[3] Courts must give effect to the amendments. Thus, in a habeas corpus application where the detention order of the Minister is made under s. 4(1) of the Ordinance or, under equivalent provisions in the ISA 1960 or DD (SPM) Act 1985, the first thing the courts should do is to see whether the ground forwarded is one that falls within the meaning of procedural non-compliance. To determine the question, the courts should look at the provisions of the law or the rules that lay down the procedural requirements. It is not for the courts to create procedural requirements because it is not the function of the courts to make law or rules. If there is no such procedural requirement then there cannot be non-compliance thereof.

[4] In the instant case, the grounds forwarded for habeas corpus were clearly not within the ambit of the term ‘procedural non-compliance’. There appeared to be no provision in the law or the rules – and neither was the Federal Court referred to any such provision – that required the Minister to consider whether criminal prosecution ought to be taken against the appellant or that the order had to be made within a certain time from the date of the alleged criminal acts. Thus, the grounds were not such that could be relied on in an application for habeas corpus, by virtue of ss. 7C(1) and 7D(c) of the Ordinance. On this ground alone, the application should be dismissed.

[5] The power of the Attorney General to institute criminal proceedings should not be confused with the power of the Minister to make a detention order. These are two distinct powers under two different laws. The Attorney General and the Minister, respectively, have power given to them by the respective laws. Just as the Attorney General has power to institute proceedings but not the power to order detention, the Minister has power to order detention but not to institute proceedings. The law does not also require the Minister to first refer a matter before him to the Attorney General for his consideration whether to institute criminal proceedings before considering whether to issue a detention order. Their powers are separate and provided for by different laws. Kanchanlal Maneklal Chokshi v. State of Gujerat [1979] SCC (Cri.) 897 (not folld); Hemlata Kantilal Shah v. State of Maharashtra & Anor [1982] SCC (Cri.) 16 (not folld); Murugan s/o Palanisamy & Ors v. Deputy Minister of Home Affairs [2000] 1 CLJ 147; [1999] 6 MLJ 334 (not folld); Chong Boon Pau v. Timbalan Menteri Dalam Negeri [2004] 4 CLJ 838 (not folld).

[6] With regard to the second ground, there is nothing in the law that requires the Minister to make an order, if he so wishes, within a certain time from the date of the alleged criminal activity. There is also no ‘condition precedent’ laid down in s. 4(1) regarding the time when the order should be made. There is no limitation period and thus there can be no non-compliance thereof. It is not the function of the court to create such a limitation period or a procedural requirement.Yit Hon Kit v. Minister of Home Affairs, Malaysia & Anor [1986] 1 LNS 121; [1988] 2 MLJ 638 (not folld); MoganPerumal v. K/l Hussein Abdul Majid & 5 Ors [1998] 3 CLJ 629 (not folld); and Abd Rahman Hj Maidin v. Timbalan Menteri Dalam Negeri, Malaysia & 2 Ors [2000] 3 CLJ 8 (not folld).

[Bahasa Malaysia Translation Of Headnotes

Perayu telah ditahan di bawah perintah penahanan yang telah dikeluarkan oleh Timbalan Menteri Hal Ehwal Dalam Negeri Malaysia (‘Timbalan Menteri itu’), responden pertama, di bawah s. 4(1) Ordinan Darurat (Ketenteraman Awam dan Pembanterasan Jenayah) 1969 (“Ordinan itu”). Perayu telah memohon pengeluaran suatu writ habeas corpus, mendakwa bahawa perintah penahanan tidak sah di atas alasan-alasan berikut: (i) Timbalan Menteri itu tidak mengambil kira sama ada pendakwaan jenayah harus diambil terhadapnya; dan (ii) alasan penahanan adalah kebayuan dan terlalu jauh dari segi undang-undang bagi menyokong penahanannya di bawah Ordianan itu. Di tahap pertama, permohonan perayu telah ditolak. Perayu telah merayu kepada Mahkamah Persekutuan. Di Mahkamah Persekutuan, para hakim telah menyuarakan kegelisahan bahawa dalam kes-kes yang menentang penahanan di bawah Ordinan itu, Akta Keselamatan Dalam Negeri 1960 (‘ISA 1960’); dan Akta Dadah Berbahaya (Langkah-Langkah Pencegasan Khas) 1985 (‘Akta DD (SPM) 1985’), lazimnya diputuskan tanpa rujukan kepada peruntukan statutori yang relevan mengakibatkan pindaan peruntukan statutori tidak diberi kesan. Dalam memutuskan rayuan ini, para Hakim mendapati adalah perlu menekan kepentingan beberapa pindaan statutori berkaitan kajian semula kehakiman dalam Akta-Akta itu, khususnya pindaan berkaitan dengan Ordinan itu.

Diputuskan (menolak rayuan itu):

Oleh Abdul Hamid Mohamad HMP:

[1] Ordinan itu telah dipinda di bawah Akta Darurat (Ketenteraman Awam dan Pembanterasan Jenayah) (Pindaan) 1989 (‘Akta A740’) yang berkuatkuasa sejak 24 Ogos 1989. Pindaan yang sama telah juga dibuat kepada ISA 1960 dan Akta DD (SPM) Act 1985, masing-masing dibawah Akta A739 dan Akta A738. Akta A740, antara lain, memasukkan ss. 7C and 7D baru ke dalam Ordinan itu, yang jelas menghadkan tentangan kepada perintah penahanan yang dibuat oleh Menteri di bawah s. 4(1) Ordinan itu kepada alasan tidak menuruti sebarang keperluan prosedur, dan bukan sebarang alasan lain.

[2] Kes-kes yang telah diputuskan sebelum pindaan itu, iaitu 24 Ogos 1989, menunjukkan berbagai alasan yang menjadi asas penentangan perintah penahanan. Mala fide nampaknya alasan yang paling penting. Mahkamah nampaknya memberi penekanan yang kurang kepada alasan tidak menuruti sebarang keperluan prosedur kecuali jika keperluan itu adalah suatu peruntukan mandatori. Walau bagaimanapun pindaan-pindaan itu nampaknya telah membalikkan situasi dengan menghadkannya kepada hanya satu alasan – tidak menuruti sebarang keperluan prosedur.

[3] Mahkamah harus memberi kesan kepada pindaan-pindaan itu. Jadi, dalam suatu permohonan habeas corpus di mana perintah penahanan seorang Menteri telah dibuat di bawah s. 4(1) Ordinan itu atau di bawah peruntukan yang serupa dalam ISA 1960 atau Akta DD (SPM) 1985, perkara pertama yang harus dikenalpasti ialah samada alasan yang dimajukan adalah satu yang jatuh di bawah maksud tidak menuruti sebarang keperluan prosedur. Bagi menentukan persoalan ini, mahkamah harus meneliti peruntukan undang-undang atau kaedah yang memberikan keperluan prosedur. Bukan tugas mahkamah mendirikan keperluan prosedur memandangkan bukanlah fungsi mahkamah membuat undang-undang atau kaedah. Jika tidak wujud sebarang keperluan prosedur maka persoalan menuruti sebarang keperluan prosedur tidak wujud.

[4] Dalam kes ini, alasan yang dimajukan bagi habeas corpus jelas tidak termasuk dalam terma ‘tidak menuruti sebarang keperluan prosedur’. Tiada sebarang peruntukan undang-undang mahupun kaedah – dan Mahkamah Persekutuan tidak dirujuk kepada sebarang peruntukan sepertinya – yang memerlukan seorang Menteri menimbangkan sama ada pendakwaan jenayah harus diambil terhadap perayu atau bahawa perintah harus dikeluarkan dalam suatu masa yang diperuntukkan dari tarikh perlakuan jenayah yang didakwa. Jadi, alasan sedemikian tidak boleh dijadikan asas suatu permohonan bagihabeas corpus, memandangkan ss. 7C(1) and 7D(c) Ordinan itu. Di atas alasan ini sahaja permohonan ini harus ditolak.

[5] Kuasa Peguam Negara memulakan suatu pendakwaan jenayah tidak harus dikelirukan dengan kuasa seorang Menteri membuat suatu perintah penahanan. Ini adalah dua kuasa yang berbeza di bawah dua undang-undang yang berlainan. Peguam Negara dan Menteri masing-masing mempunyai kuasa yang diberikan kepada mereka di bawah undang-undang yang berkaitan. Seperti juga Peguam Negara mempunyai kuasa bagi memulakan pendakwaan jenayah tetapi tiada kuasa bagi memerintahkan penahanan, seorang Menteri juga mempunyai kuasa bagi memerintahkan penahanan tetapi bukan bagi memulakan pendakwaan jenayah. Undang-undang juga tidak memerlukan seorang Menteri merujuk perkara di hadapannya kepada Peguam Negara terlebih dahulu bagi suatu penimbangan sama ada hendak memulakan pendakwaan jenayah sebelum menimbangkan sama ada hendak mengeluarkan suatu perintah penahanan. Kuasa-kuasa mereka adalah berasingan dan diperuntukkan di bawah undang-undang yang berlainan. Kanchanlal Maneklal Chokshi v.State of Gujerat [1979] SCC (Cri.) 897 (tidak diikuti); Hemlata Kantilal Shah v. State of Maharashtra & Anor [1982] SCC (Cri.) 16 (tidak diikuti); Murugan s/o Palanisamy & Ors v. Deputy Minister of Home Affairs [2000] 1 CLJ 147; [1999] 6 MLJ 334 (tidak diikuti); Chong Boon Pau v. Timbalan Menteri Dalam Negeri [2004] 4 CLJ 838 (tidak diikuti).

[6] Berkaitan dengan alasan kedua, tiada sebarang keperluan undang-undang yang memerlukan seorang Menteri membuat sebarang perintah, jika ia berniat berbuat sedemikian, dalam kurungan masa tertentu dari tarikh sesuatu kelakuan jenayah yang didakwa. Tiada juga sebarang pra-syarat yang diperuntukkan di bawah s. 4(1) berkaitan masa bila perintah itu harus dibuat. Memandangkan tiada sebarang penghadan masa, maka persoalan tidak menuruti penghadan masa tidak wujud. Tidaklah menjadi fungsi mahkamah mewujudkan suatu penghadan masa atau sebarang keperluan prosedur. Yit Hon Kit v. Minister of Home Affairs, Malaysia & Anor [1986] 1 LNS 121; [1988] 2 MLJ 638 (tidak diikuti); Mogan Perumal v. K/l Hussein Abdul Majid & Ors [1998] 3 CLJ 629 (tidak diikuti); and Abd Rahman Hj Maidin v. Timbalan Menteri Dalam Negeri, Malaysia & 2 Ors [2000] 3 CLJ 8 (tidak diikuti).

Case(s) referred to:

Abdul Rahman Hj Maidin v. Timbalan Menteri Dalam Negeri [2000] 3 CLJ 8 CA (not foll)

An Ngoh Leong v. Inspector General of Police & Ors [1993] 1 CLJ 373; [1993] 1 MLJ 65 (refd)

Athappen Arumugam v. Menteri Hal Ehwal Dalam Negeri, Malaysia & Ors [1983] 1 LNS 49; [1984] 1 MLJ 67 (refd)

Che Su Shafie v. Superintendent of Prisons, Pulau Jerejak, Penang [1973] 1 LNS 11; [1974] 2 MLJ 19 (refd)

Chong Boon Pau v. Timbalan Menteri Dalam Negeri [2004] 4 CLJ 838 HC (not foll)

Chong Kim Loy v. Timbalan Menteri Dalam Negeri, Malaysia & Anor [1990] 1 CLJ 61; [1990] 1 CLJ (Rep) 731 HC (refd)

Chua Teck v. Menteri Hal Ehwal Dalam Negeri, Malaysia & Ors [1989] 2 CLJ 414; [1989] 1 CLJ (Rep) 429 HC (refd)

Hemlata Kantilal Shah v. State of Maharashtra & Anor [1982] SCC (Cri) 16 (not foll)

Inspector-General of Police & Anor v. Lee Kim Hoong [1979] 1 LNS 34; [1979] 2 MLJ 291 (refd)

Jagan Nath Biswas v. The State of West Bengal AIR [1975] SC 1516 (refd)

Kanchanlal Maneklal Chokshi v. State of Gujerat [1979] SCC (Cri) 897 (not foll)

Karpal Singh Ram Singh v. Menteri Hal Ehwal Dalam Negeri Malaysia & Anor [1988] 1 CLJ 197; [1988] 1 CLJ (Rep) 632 HC (refd)

Koh Yoke Koon v. Minister for Home Affairs, Malaysia & Anor [1987] 1 LNS 67; [1988] 1 MLJ 45 (refd)

Md Sahabudin v. The District Magistrate 24 Parganas & Ors AIR [1975] SC 1722 (refd)

Menteri Hal Ehwal Dalam Negeri & Anor v. Lee Gee Lam and Another Application [1993] 4 CLJ 336 SC (refd)

Minister of Home Affairs, Malaysia & Anor v. Karpal Singh [1988] 3 MLJ 29 (refd)

Mohamad Ezam Mohd Noor v. Ketua Polis Negara & Other Appeals [2002] 4 CLJ 309 FC (refd)

Mogan Perumal v. K/L Hussein Abdul Majid & Ors [1998] 3 CLJ 629 CA (not foll)

Murugan Palanisamy & Ors v. Deputy Minister of Home Affairs [2000] 1 CLJ 147 HC (not foll)

Re Application of Tan Boon Liat; Tan Boon Liat v. Menteri Hal Ehwal Dalam Negeri, Malaysia & Ors [1976] 1 LNS 126; [1976] 2 MLJ 83 (refd)

Re Khor Hoi Choy; Khor Hoi Choy v. Menteri Dalam Negeri Malaysia & Ors [1986] 1 CLJ 55; [1986] CLJ (Rep) 403 HC (refd)

Re PE Long & Ors; PE Long & Ors v. Menteri Hal Ehwal Dalam Negeri Malaysia & Ors [1976] 2 MLJ 133 (refd)

Re Tan Boon Liat [1977] 1 MLJ 39 (refd)

Re Tan Sri Raja Khalid Raja Harun; Inspector General of Police v. Tan Sri Raja Khalid Raja Harun [1987] 2 CLJ 470; [1987] CLJ (Rep) 1014 HC (refd)

SK Serajul v. State of West Bengal [1975] 2 SC (78) (refd)

Subramaniam v. Menteri Hal Ehwal Dalam Negeri & Ors [1976] 1 LNS 147; [1977] 1 MLJ 82 (refd)

Sukumaran Sundram v. Timbalan Menteri Hal Ehwal Dalam Negeri Malaysia and Another Application [1995] 3 CLJ 129 HC (refd)

Teh Hock Seng v. Minister of Home Affairs & Anor [1990] 2 CLJ 460; [1990] 3 CLJ (Rep) 232 HC (refd)

Theresa Lim Chin Chin & Ors v. Inspector General of Police [1988] 1 LNS 132; [1988] 1 MLJ 293 (refd)

Yap Chin Hock v. Minister of Home Affairs & Anor and Other Applications [1989] 2 CLJ 860; [1989] 2 CLJ (Rep) 673 HC (refd)

Yeap Hock Seng v. Minister for Home Affairs, Malaysia & Ors [1975] 1 LNS 199; [1975] 2 MLJ 279 (refd)

Yit Hon Kit v. Minister of Home Affairs, Malaysia & Anor [1986] 1 LNS 121; [1988] 2 MLJ 638 (not foll)

Zainab Othman v. Superintendent of Prisons, Pulau Jerejak, Penang [1975] 1 LNS 202; [1975] 1 MLJ 76 (refd)

Zakaria Jaafar v. Menteri Hal Ehwal Dalam Negeri, Malaysia & Ors and Other Applications [1989] 2 CLJ 691 (Rep); [1989] 2 CLJ 1101; [1989] 3 MLJ 318 (refd)

Legislation referred to:

Criminal Procedure Code, ss. 254, 376

Dangerous Drugs (Special Preventive Measures) Act 1985, ss. 6(1), 11C, 11D

Emergency (Public Order and Prevention of Crime) Ordinance 1969, ss. 4(1), 5(2)(b), 7C, 7D

Federal Constitution, art. 145(3)

Internal Security Act 1960, ss. 8, 8B(1), 8C, 8D, 73(1), (3)(a), (b)

Prevention of Crime (Procedure) Rules 1972, r. 3(2)

Counsel:

For the applicant – RR Mahendran (Alvintharan Nair, RSM Rayer & Suresh Thanabalasingam with him); M/s RR Mahendran & Co

For the respondent – Fazillah Begum Abd Ghani DPP (Najib Zakaria DPP with her)
Reported by Andrew Christopher Simon

Case History:

High Court : [2004] 1 LNS 429

 

 

JUDGMENT

Abdul Hamid Mohamad FCJ:

The appellant was detained at Pusat Pemulihan Akhlak, Simpang Renggam, Johor from 24 September 2003 under a detention order of the same date issued by the Deputy Minister of Home Affairs Malaysia (“the Deputy Minister”), the first respondent, pursuant to s. 4(1) of the Emergency (Public Order and Prevention of Crime) Ordinance 1969 (“the Ordinance”).

He applied for the issuance of a writ of habeas corpus, contending that the order was invalid on two grounds:

i) the Deputy Minister did not consider whether criminal prosecution ought to be taken against him;

ii) the ground of detention was stale and remote in point of law to support detention under the Ordinance.

The learned judge dismissed the application. The appellant appealed to this court. We heard the appeal and reserved our judgment. This is our judgment.

Before dealing with each of the grounds specifically, we think there is something more fundamental that covers both grounds that has to be dealt with first. This concerns the provisions of the Ordinance itself (and also other similar laws like the Internal Security Act 1960 (“ISA 1960”) and the Dangerous Drugs (Special Preventive Measures) Act 1985 (“DD (SPM) Act 1985”) at the relevant times when the cases referred to us were decided. Quite often, cases were cited and even decided without reference to the statutory provisions at the relevant time as if the statutory provisions had remained the same throughout and in so doing effect was not given to material amendments to the relevant statutes.

Power to order detention is provided by s. 4(1) of the Ordinance:

4. Power to order detention.

(1) If the Minister is satisfied that with a view to preventing any person from acting in any manner prejudicial to public order it is necessary that that person should be detained, or that it is necessary for the suppression of violence or the prevention of crimes involving violence that that person should be detained, the Minister shall make an order (hereinafter referred to as a “detention order”) directing that that person be detained for any period not exceeding two years.

The Ordinance was amended by the Emergency (Public Order and Prevention of Crime) (Amendment) Act 1989 (“Act A740”) which came into force on 24 August 1989. (Similar amendments were also made to ISA 1960 and DD (SPM) Act 1985 by Act A739 and Act A738, respectively.) Act A740, inter alia, inserted new ss. 7C and 7D into the Ordinance. The sections provide as follows:

7C. Judicial review of act or decision of Yang di-Pertuan Agong and Minister.

(1) There shall be no judicial review in any court of, and no court shall have or exercise any jurisdiction in respect of, any act done or decision made by the Yang di-Pertuan Agong or the Minister in the exercise of their discretionary power in accordance with this Ordinance, save in regard to any question on compliance with any procedural requirement in this Ordinance governing such act or decision.

7D. Interpretation of “judicial review”.

In this Ordinance, “judicial review” includes proceedings instituted by way of:

(a)

(b)

(c) a writ of habeas corpus; and

The provisions of ss. 7C and 7D are clear. The effect of the amendments is that, in a habeas corpus application such as in this case, the detention order made by the Minister under s. 4(1) of the Ordinance may only be challenged on ground of non-compliance with any procedural requirement, and nothing else.

Even though the words of s. 7C and 7D are clear, perhaps we should briefly look at the circumstances that had led to the amendments.

One of the earliest if not the first case in which a detention order made under the Ordinance was challenged is the case of Che Su binti Shafie v. Superintendent of Prisons, Pulau Jerejak, Penang [1973] 1 LNS 11; [1974] 2 MLJ 19. The order was challenged on the grounds that, first, there was a failure to observe the full provisions of s. 5(2)(b) of the Ordinance that requires the detainee to be furnished by the Minister with the grounds of his detention and, secondly, that the Minister was acting mala fide. On the first ground, Chang Min Tat J (as he then was) held that the failure to furnish the grounds of detention could not invalidate the order made by the Minister. On the second ground the learned judge held on the facts of the case, “no question of mala fide could arise as it was always open to the authorities to cure a defective order in the proceedings”.

In the following year, a similar order was again challenged in Zainab binti Othman v. Superintendent of Prisons, Pulau Jerejak, Penang [1975] 1 LNS 202; [1975] 1 MLJ 76. In that case the writ of habeas corpus was issued as there was some doubt whether the order that was served was the one actually intended to be made by the Minister, there being two orders, one dated 8 August 1973 and the other 6 August 1973. The order dated 8 August was never served and the order purportedly dated 6 August had the figure “6” superimposed on the figure “8” which had been erased.

The next case that should be mentioned is Yeap Hock Seng @ Ah Seng v. Minister for Home Affairs, Malaysia & Ors [1975] 1 LNS 199; [1975] 2 MLJ 279. In that case too, the detainee was detained under an order made pursuant to the same section and the same Ordinance under discussion. It is to be noted that in that case the main ground of challenge of the order was mala fide, which the learned judge (Abdoolcader J, as he then was) held that the detainee had failed to prove.

In Re P.E. Long @ Jimmy & Ors; P.E. Long & Ors v. Menteri Hal Ehwal Dalam Negeri Malaysia & Ors [1976] 1 LNS 132; [1976] 2 MLJ 133, four grounds were forwarded including that the detention was outside the scope of the Ordinance and that copies of the purported detention orders served on the applicants were not signed and were not under the hand of the Minister. The learned judge held that the orders were valid and not justiciable in the absence of mala fide.

In Re Application of Tan Boon Liat @ A. Allen; Tan Boon Liat v. Menteri Hal Ehwal Dalam Negeri, Malaysia & Ors [1976] 1 LNS 126; [1976] 2 MLJ 83, the detention orders under challenge were made under the same Ordinance under discussion. The ground was that the detention orders were outside the scope of the Ordinance. The applications were dismissed and subsequent appeals to the Federal Court were also dismissed – see [1977] 2 MLJ 18.

Tan Boon Liat and the other detainees made another application in the High Court in 1976 – see [1977] 1 MLJ 39. Here there was a clear breach of procedural rule ie, the Advisory Board had not made its recommendation within three months of the detentions of the applicants. However, at the time the applications were made, the Advisory Board had made their recommendations though after three months. It was argued that their continued detentions after a lapse of three months were illegal and unlawful as within the three months the Advisory Board had not met to consider the representations made by the applicants and, following that, made representations to the Yang di Pertuan Agong. Arulanandom J held that while the procedural requirements had not been complied with, valid orders of detention were in force against the applicants and their detention was therefore legal.

In Subramaniam v. Menteri Hal Ehwal Dalam Negeri & Ors [1976] 1 LNS 147; [1977] 1 MLJ 82, the facts are similar to Re Tan Boon Liat [1977] 1 MLJ 39. Hamid J (as he then was) dismissed the application. The learned judge, inter alia, held:

(2) in this case there has been a failure to comply with the statutory direction but mere non-compliance with directory provision, so long as the Advisory Board considers the representations and makes its recommendations, should not render unlawful a detention lawfully made.

The Federal Court allowed the detainees’ appeals against the said judgments of Arulanandom J and Abdul Hamid J – see [1977] 2 MLJ 108. The Federal Court inter alia, held:

(2) the failure of the Advisory Board to carry out its duty within the prescribed time in these cases rendered the continued detention after three months period to be unlawful as it could not be said to be in accordance with law;

In Inspector-General of Police & Anor v. Lee Kim Hoong [1979] 1 LNS 34; [1979] 2 MLJ 291, the detention under the same Ordinance was challenged on the ground that the Ordinance had not been laid before Parliament and therefore the Ordinance did not have the force of law and the detention unlawful. On additional evidence allowed by the Federal Court, the court held that the Ordinance had been properly laid before Parliament and therefore had the force of law and the detention was lawful.

In Athappen a/l Arumugam v. Menteri Hal Ehwal Dalam Negeri, Malaysia & Ors[1983] 1 LNS 49; [1984] 1 MLJ 67, the detention order made under the same section and Ordinance under discussion was again challenged. In dismissing the application Edgar Joseph Jr. J, (as he then was) held:

(1) the subjective satisfaction of the Minister to detain a subject is not open to judicial review;

(2) the vagueness etc. of the allegations of fact upon which a detention order is based does not relate back to the order of detention thereby vitiating it;

(3) the mere fact that a subject has been detained under the law as to preventive detention following his acquittal in a Criminal Court does not ipso facto render his detention wrongful;

(4) exceptionally, the courts will review the order for preventive detention if:

(a) mala fides is alleged; or,

(b) it is alleged that the grounds of detention stated in the order do not fall within the scope and ambit of the relevant legislation;

or

(c) it is alleged that a condition precedent for the making or the continuance of the order of preventive detention has not been complied.

It is to be noted that in 1985, the DD (SPM) Act 1985 came into force. Perhaps the first case that came to court under that Act is Re Khor Hoi Choy; Khor Hoi Choy v. Menteri Dalam Negeri Malaysia & Ors [1986] 1 CLJ 55; [1986] CLJ (Rep) 403. However, I do not think it is necessary to discuss it as the case lays down no new principle.

Koh Yoke Koon v. Minister for Home Affairs, Malaysia & Anor [1987] 1 LNS 67; [1988] 1 MLJ 45, is yet another case of a detention order issued under s. 4(1) of the Ordinance which was challenged. In that case the detention order states that the period of detention was for two years from 12 December 1986 and that he was to be detained at Pulau Jerejak Rehabilitation Centre. However, the detainee was detained at the Muar police station from 14 December 1986 (the day he was rearrested) until some time in the morning of 16 December 1986 when he was removed to the Rehabilitation Centre in Pulau Jerejak.

In granting the habeas corpus and setting the applicant free; the learned judge held:

(1) having regard to the provisions of the Ordinance, the requirements therein as to the place of detention even though procedural are mandatory in character and so breaches thereof cannot be condoned;

(2) the applicant’s period of detention in police custody at the Muar police station from December 14, 1986, until some time in the morning of December 16, 1986 when he was removed to the Rehabilitation Centre was wholly unauthorised and therefore in violation of Article 5(1) as being otherwise than in accordance with law;

(3) the Detention Order will not operate to salvage the case for the detaining authority for it specifically provided for detention at the Centre for two years from December 12, 1986 and cannot therefore have the effect of rendering legal the applicant’s illegal detention at the Muar police station from December 14, 1986 until his removal therefrom on the morning of December 16, 1986;

(4) the detention of the applicant under section 4(1) was not procured by steps all of which were entirely regular nor was the court satisfied that “every step in the process” which led to such detention was followed with extreme regularity and therefore the court should not allow the imprisonment to continue. To hold to the contrary would in effect mean that the Minister had power to continue the detention of one who is being illegally detained;

(5) the Deputy Minister had unwittingly exceeded the powers conferred upon him by ordering the continued detention of one who was being illegally detained with the result that the Detention Order, even if valid, was not legally effective at the date of the service thereof to allow the detention of the applicant to continue;

(6) the applicant was entitled to be set at liberty.

Per curiam : ” in a matter concerning the liberty of the subject – always a priceless asset – the court should walk very warily, preferring to interpret words and phrases in their ordinary and natural meaning than to embark on inferences or speculations about such a power.”

Then comes the landmark judgment of the Supreme Court in Re Tan Sri Raja Khalid bin Raja Harun; Inspector General of Police v. Tan Sri Raja Khalid bin Raja Harun [1987] 2 CLJ 470; [1987] CLJ (Rep) 1014. In that case, the detainee was detained under s. 73(1) and subsequently under s. 73(3)(a) & (b) of ISA 1960. He applied for habeas corpus. As we understand it, the judgment of the Supreme Court brought out a few important points but we need only state one which we consider to be more relevant to the present discussion, and that is that s. 73(1) and s. 8 are so inextricably connected that the subjective test should be applied to both. The court held that it cannot require the police officer to prove to the court the sufficiency of the reason for his belief under s. 73(1). But if facts are furnished voluntarily and in great detail as in this case for consideration of the court, it would be naive to preclude the judge from making his own evaluation and assessment to come to a reasonable conclusion. In that case, the Supreme Court found it difficult to disagree with the learned judge on his conclusion based on the facts furnished in court that the losses sustained by Perwira Affin Bank would lead to any organized violence by soldiers. The Supreme Court therefore affirmed the learned judge’s decision to issue the writ of habeas corpus.

Less than two months after the Supreme Court delivered its judgment in Re Tan Sri Raja Khalid (supra), the Supreme Court delivered its judgment in Theresa Lim Chin Chin & Ors v. Inspector General of Police [1988] 1 LNS 132; [1988] 1 MLJ 293. In this case the detainee challenged her arrest under s. 73 of the ISA 1960. I shall only refer to the issue of subjective or objective test that should be applied by the court regarding the satisfaction of the police officer making the arrest (or the Minister making the detention order). The court noted that the submission that it was the objective test that should be applied was earlier made in Tan Sri Raja Khalid ‘s case (supra) and was rejected by the court although the court upheld the release of the detainee in that case because the arresting officer had sworn an affidavit to the effect that the arrest and detention related to allegations of bank fraud which was a criminal offence. The court, then held:

(6) in this case, whether the objective or subjective test is applicable, it is clear that the court will not be in a position to review the fairness of the decision-making process by the police and by the Minister because of the lack of evidence since the Constitution and the law protect them from disclosing any information and materials in their possession upon which they based their decision. Thus, it is more appropriately described as the subjective test;

On 9 March 1988 Peh Swee Chin J (as he then was) delivered his judgment in Karpal Singh s/o Ram Singh v. Menteri Hal Ehwal Dalam Negeri Malaysia & Anor [1988] 1 CLJ 197; [1988] 1 CLJ (Rep) 632. In this case, the detainee challenged the detention order issued under s. 8 of the ISA 1960. In that case six allegations were made against the applicant which formed the basis of the detention order. The Minister subsequently admitted that there was an error in the sixth allegation as the detainee did not on that date, time and place spoke of the issue alleged.

Peh Swee Chin J (as he then was), in allowing the application held:

(1) there are three exceptions to the non-justiciability of the Minister’s mental satisfaction in cases of this kind. They are (a) mala fide, (b) the stated grounds of detention not being within the scope of the enabling legislation, i.e. the Act, and (c) the failure to comply with a condition precedent;

(2) mala fides does not mean at all a malicious intention. It normally means that a power is exercised for a collateral or ulterior purpose, i.e. for a purpose other than the purpose for which it is professed to have been exercised;

(3) although the error relating to the sixth allegation was probably made in the course of enquiries by the police, the Minister cannot rid himself of the error of the police because the process starting with the initial arrest of the applicant under section 73 of the Act pending enquiries until the execution of a detention order made by the Minister would appear to be a continuous one. Such being the case, any period or any part of such one continuous process can be looked into to see if the care and caution have been exercised with a proper sense of responsibility for the purpose of ascertaining if the detention order was properly made;

(4) viewed objectively and not subjectively, the error, in all the circumstances, would squarely amount to the detention order being made without care, caution and a proper sense of responsibility. Such circumstances have gone beyond a mere matter of form;

(5) the sixth allegation, though an irrelevant allegation which the court can enquire into, was also an inaccurate allegation that can be treated as being outside the scope of the Act;

(6) with regard to the contention that the detention order was necessary having regard to the first to fifth allegations, this court should not accede to the contentions.

On 11 May 1988 the appeal by the Public Prosecutor in Koh Yoke Khoon (supra) was dismissed by the Supreme Court. In brief the Supreme Court confirmed the judgment of the High Court that the detention of the detainee at the Muar police station pending removal to Pulau Jerejak Rehabilitation Centre was unlawful, as according to the order during that period he should be detained in Pulau Jerejak Rehabilitation Centre – see [1988] 2 MLJ 301.

At about the same time, Edgar Joseph Jr. J, in Yit Hon Kit v. Minister of Home Affairs, Malaysia & Anor [1986] 1 LNS 121; [1988] 2 MLJ 638, inter alia, held that the criminal activities alleged against the applicant were too remote in point of law to justify the making of the order under s. 4(1) of the Ordinance.

On 19 July 1988, Peh Swee Chin J’s judgment in Karpal Singh (supra) was reversed by the Supreme Court – see Minister of Home Affairs, Malaysia & Anor v. Karpal Singh [1988] 3 MLJ 29. In allowing the appeal the court held:

(1) The learned judge in this case would seem to have failed to distinguish between grounds of detention stated in the detention order and the allegations of fact supplied to the detainee. In particular, he failed to recognize that whilst the grounds of detention stated in the detention order are open to challenge or judicial review if alleged to be not within the scope of the enabling legislation, the allegations of fact upon which the subjective satisfaction of the Minister was based are not. The learned judge therefore clearly misdirected himself.

(2) Whether there is reasonable cause for the making of the detention order is something which exists solely in the mind of the Minister of Home Affairs and he alone can decide it and it is not subject to challenge or judicial review unless it can be shown that he did not hold the opinion which he professed to hold.

(3) In this case the Minister of Home affairs had gone on affidavit to say that omitting the allegation of fact complained against, he would still have made the detention order having regard to the reports and the information relating to the conduct of the respondent upon which no doubt the rest of the allegations of fact were based. The learned judge was bound to accept these averments in the affidavit and could not inquire into the cause of the detention.

(4) The flawed sixth allegation of fact was an error of no consequence which can be regarded as a mere surplusage especially in view of the affidavit of the Minister of Home Affairs is not subject to judicial review.

We shall not discuss the three cases decided by the High Court in the earlier part of 1989. They are Chong Kim Loy v. Timbalan Menteri Dalam Negeri, Malaysia & Anor [1990] 1 CLJ 61; [1990] 1 CLJ (Rep) 731 (Edgar Joseph Jr J, as he then was), Chua Teck v. Menteri Hal Ehwal Dalam Negeri, Malaysia & Ors [1989] 2 CLJ 414; [1989] 1 CLJ (Rep) 429 (LC Vohrah J) and Zakaria bin Jaafar v. Menteri Hal Ehwal Dalam Negeri, Malaysia & Ors. And Other Applications [1989] 2 CLJ 691 (Rep); [1989] 2 CLJ 1101; [1989] 3 MLJ 318 (Mohtar Abdullah JC, as he then was ).

Then, on 18 August 1989, Edgar Joseph Jr. J (as he then was) decided in Yap Chin Hock v. Minister of Home Affairs & Anor and Other Applications [1989] 2 CLJ 860; [1989] 2 CLJ (Rep) 673, inter alia, that:

(7) The subjective satisfaction of the Minister cannot be questioned. Ordinary criminal laws are meant to complement preventive detention laws and they are not substitutes for one another. The fact that the Minister chose to invoke the Act was not evidence that he failed to consider a course in criminal prosecution rather than preventive detention.

(8) The delay in the detention of the second applicant was explained by the Deputy Minister and the submission on proximity is unacceptable.

This was perhaps the last case decided prior to the amendments to the Ordinance, ISA 1960 and DD(SPM) Act 1985 made by Act A740, Act A739 and Act A738 respectively, all of which came into force on 24 August 1989.

The cases appear to show that there were various grounds on which the detention orders were challenged of which mala fide appears to be the most important ground. Courts appear to have placed lesser importance on procedural non-compliance unless the requirement is mandatory in nature. The amendments appear to have reversed the position and in so doing limited the ground to only one ie, non-compliance with procedural requirements.

With the amendments, one would have thought that applications made after 24 August 1989 challenging the Minister’s detention order under s. 4(1) of the Ordinance and similar provisions in ISA 1960 and DD(SPM) Act 1985 would be based on one ground only ie, non-compliance with procedural requirements. But, quite surprisingly, except for a few cases at High Court level, courts hardly refer to, whatmore rely on, the amendments. Examples of cases in which the court (High Court) relied on the amendments are Teh Hock Seng v. Minister of Home Affairs & Anor [1990] 2 CLJ 460; [1990] 3 CLJ (Rep) 232 in which the court relied on similar amendments in the DD (SPM) Act 1985 and Sukumaran s/o Sundram v. Timbalan Menteri Hal Ehwal Dalam Negeri Malaysia and Another Application [1995] 3 CLJ 129. The latter is a case under the Ordinance and s. 7C was specifically referred to and relied on in the judgment of the learned judge.

But, in other cases, no reference was made to the amendments or similar amendments in the other Acts and we shall look at some of those cases. In this respect, the focus will be mainly on the judgments of the Supreme Court, the Federal Court and the Court of Appeal. Even then, cases reported in 1990 to 1992 are omitted as those appeals, though heard by the Supreme Court after the amendments, might have been filed in the High Court before the amendments.

In An Ngoh Leong v. Inspector General of Police & Ors. [1993] 1 MLJ 65, the Supreme Court allowed the detainee’s appeal because of a breach of r. 3(2) of the Prevention of Crime (Procedure) Rules 1972. The breach is clearly a procedural non-compliance. However, the court did not refer to the amendment but decided on the ground that the rule was mandatory in nature.

In Menteri Hal Ehwal Dalam Negeri & Anor v. Lee Gee Lam and Another Application [1993] 4 CLJ 336 (SC) where the order made under s. 4 of the Ordinance stated the grounds of detention in the alternative, the Supreme Court held that the order was vague as to whether the Deputy Minister had actually applied his mind to the particular circumstances of each respondent’s case or whether he had exercised his power of detention mechanically.” No. reference was made to the amendments.

In Abdul Rahman bin Haji Maidin v. Timbalan Menteri Dalam Negeri [2000] 3 CLJ 8 (CA) where the appellant was detained under s. 6(1) of the DD (SPM) Act 1985, two grounds were forwarded.

(i) the detention order failed to indicate whether the appellant’s criminal activities were past or present and was vague and ambiguous and thus invalid; and

(ii) there had been a long delay from the time of his last known act of criminal activities to the time the detention order was issued.

The Court of Appeal dismissed the argument. However, no reference was made to the amendment.

Something need be said about Mohamad Ezam bin Mohd. Noor v. Ketua Polis Negara & Other Appeals [2002] 4 CLJ 309 (FC). In that case the challenge was against the detention by the police under s. 73 of the ISA 1960. So, the provisions of ss. 8B and 8C of the ISA were not applicable because s. 8B(1) only talks about “any act done or decision made by the Yang di Pertuan Agong or the Minister.” So, that case is not relevant to the present discussion.

In our view, courts must give effect to the amendments. That being the law, it is the duty of the courts to apply them. So, in a habeas corpus application where the detention order of the Minister made under s. 4(1) of the Ordinance or, for that matter, the equivalent ss. in ISA 1960 and DD(SPM) Act 1985, the first thing that the courts should do is to see whether the ground forwarded is one that falls within the meaning of procedural non-compliance or not. To determine the question, the courts should look at the provisions of the law or the rules that lay down the procedural requirements. It is not for the courts to create procedural requirements because it is not the function of the courts to make law or rules. If there is no such procedural requirement then there cannot be non-compliance thereof. Only if there is that there can be non-compliance thereof and only then that the courts should consider whether, on the facts, there has been non-compliance.

Coming back to present case, both the grounds forwarded are clearly not within the ambit of the term “procedural non-compliance.” There does not appear to be any provision in the law or the rules, neither were we shown such a provision, that requires the Minister to consider whether criminal prosecution ought to be taken against the appellant or that the order must be made within a certain period from the date of the alleged criminal acts. There being no such procedural requirement, there can never be non-compliance thereof. In other words, the grounds are not such that could be relied on in an application for habeas corpus by virtue of the provisions of ss. 7C(1) and 7D(c) of the Ordinance. On this ground alone, the application should have been dismissed.

In any event, we do not think that the first ground has any merits. Learned Counsel for the appellant relied on Kanchanlal Maneklal Chokshi v. State of Gujerat [1979] SCC (Cri.) 897; Hemlata Kantilal Shah v. State of Maharashtra & Anor [1982] SCC (Cri.) 16; Murugan s/o Palanisamy & Ors. v. Deputy Minister of Home Affairs [2000] 1 CLJ 147 and Chong Boon Pau v. Timbalan Menteri Dalam Negeri [2004] 4 CLJ 838.

Two things should not be confused. First the power of the Attorney General to institute criminal proceedings and secondly, the power of the Minister to make a detention order.

The power to institute criminal proceedings lies with the Attorney General and is provided by art. 145(3) of the Federal Constitution:

145 (1)

(2)

(3) The Attorney General shall have power, exercisable at his discretion, to institute, conduct or to discontinue any proceedings for an offence, other than proceedings before a Syariah Court, a native court or a court-martial.

This is repeated with further details in ss. 254 and 376 of the Criminal Procedure Code. Suffice for me to reproduce the provisions of s. 376(1):

376(1). The Attorney General shall be the Public Prosecutor and shall have the control and direction of all criminal prosecutions and proceedings under this Code.

On the other hand, power to order detention under the Ordinance lies with the Minister by virtue of s. 4(1) of the Ordinance which has been reproduced.

These are two distinct powers under two different laws. The Attorney General and the Minister, respectively, have power given to them by the respective laws. So, just as the Attorney General has power to institute proceedings but not the power to order detention, the Minister has power to order detention but not to institute proceedings. Just as it is not within the power of the Attorney General to consider making an order of detention, it is also not within the power of the Minister to consider the institution of criminal proceedings. What is the purpose of considering doing something that they, respectively, have no power to do? Indeed, if the Minister considers the institution of criminal proceedings, in a judicial review application, it would not be surprising to hear arguments that the Minister has exceeded his jurisdiction or that he has taken into consideration matters which he should not.

The law also does not require the Minister to refer the matter before him to the Attorney General first for his consideration whether to institute criminal proceedings before considering whether to issue a detention order. Similarly, the law does not require otherwise, ie, for the Attorney General to refer the matter before him to the Minister first for consideration whether the detention order should be made before considering whether to institute criminal proceedings. Their powers are separate and provided for by different laws. Indeed, even the powers of the police to arrest a person that leads to the institution of criminal proceedings and to detain a person with a view of detention by the Minister are provided by different laws, the former mainly under the Criminal Procedure Code, the latter under the Ordinance.

So, the first thing that one should be clear about is that there are two distinct and separate laws for different purposes to be exercised by two different authorities. Once we get that clear, then the argument that the Minister should have considered the institution of proceedings first collapses. The Minister has no such power and indeed, it will be ultra vires his jurisdiction to do so. That should dispose of the first argument without even any reference to case law.

Regarding the cases referred to by learned counsel for the appellant, we do not think it is necessary for us to consider the two Indian cases. They are decided according to the laws in India. It is always very dangerous to quote passages from judgments, especially from other jurisdictions, and apply them without knowing and considering the relevant written laws in such jurisdictions and without paying sufficient attention to our own written laws. Such reliance can lead our law astray as has happened in the past.

Murugan (supra) and Chong Boon Pau (supra), both judgments of the High Court are of no relevance to the point in issue. Indeed, it is surprising that the learned judge in Murugan (supra) was talking about the Deputy Minister having acted “mechanically and arbitrarily”, “the satisfaction of the Deputy Minister” and the learned JC (as he then was) in Chong Boon Pau (supra) saying that “The Deputy Minister ought to have applied his mind to the question whether the detention under the Ordinance was most necessary and was to be preferred to one under the Child Act 2001”. In both cases, no reference was made to the amendment.

On the second ground, it was argued that the grounds of detention were stale and remote in point of law to justify the detention order. No affidavits were filed by the police to explain the delay. Furthermore, the Deputy Minister failed to state his source of information in respect of the 7& frac12; months delay. Learned counsel for the appellant referred to Yit Hon Kit v. Minister of Home Affairs, Malaysia & Anor (supra), Mogan a/l Perumal v. K/l Hussein bin Abdul Majid & 5 Ors. [1998] 3 CLJ 629 and Abd. Rahman bin Haji Maidin v. Timbalan Menteri Dalam Negeri, Malaysia & 2 Ors. [2000] 3 CLJ 8.

Here too, in our view, to avoid confusing our own minds, we should begin from the basic law ie, the relevant provisions of the Ordinance before looking at decided cases. Citing passages from judgments without looking at the dates when those judgments were delivered, in view of the amendments to the Ordinance, is most dangerous. It may lead to errors of law. Even cases decided after the amendments must be considered in the light of the amendments, whether the amendments were considered in the judgments or not. Unfortunately, such arguments are still being heard, and the courts, unwittingly keep considering them, quite often without considering the amendment.

Again, out of deference to all concerned, let us look at the cases referred to by the learned counsel for the appellant.

In Yit Hon Kit v. Minister of Home Affairs, Malaysia (supra), the detention order made by the Minister pursuant to s. 4(1) of the Ordinance was again challenged. One of the grounds put forward was that “the allegations of, the effect of which was that the applicant had returned to Teluk Intan periodically during the years 1983 and 1984 to carry out his criminal activities stipulated therein, were so remote in point of time to the date of the making of the detention order dated 17 February 1986, that in the absence of an explanation for the delay (and there was none), it could not be said that the conditions precedent for the making of the detention order laid down in s. 4(1) had been satisfied.”

After referring to Yeap Hock Seng @ Ah Seng v. Minister of Home Affairs, Malaysia & Ors, (supra) SK. Serajul v. State of West Bengal [1975] 2 SC (78); Jagan Nath Biswas v. The State of West Bengal AIR [1975] SC 1516 and Md. Sahabudin v. The District Magistrate 24 Parganas & Ors. AIR [1975] SC 1722, the learned judge held that “the criminal activities alleged against the applicant are too remote in point of law to justify the making of the detention order.”

It must be noted that, first, Yit Hon Kit (supra) is a pre-amendment decision. Secondly, there is nothing in the law that requires the Minister to make an order, if he so wishes, within a certain time from the date of the alleged criminal activity. There is also no “condition precedent” laid down in s. 4(1) regarding the time when the order should be made. Perhaps, one justification one can offer is that, at that time, prior to the amendments, the court was looking at “mala fide” in the wider sense on the part of the Minister in making the order that the issue became relevant. Be that as it may, now, after the amendments, is there a “condition precedent” which must be a procedural requirement that the order may only be made within a certain time from the time of the alleged criminal activities? That is the pertinent question now and the answer is “No”.

So, Yit Hon Kit (supra), does not assist the appellant on this ground.

Morgan a/l Perumal v. K/l Hussein bin Abdul Majid & 5 Ors. (supra) is a judgment of the Court of Appeal. In that case too, the validity of the detention order made under s. 4(1) of the Ordinance was questioned. On the ground under discussion, the court, citing Yeap Hock Seng (supra) and Yip Hon Kit (supra) with approval, held that “the criminal activities of the appellant were some two years from the date of the detention order. In the absence of any explanation, we would also hold that they are far too remote to justify the detention.”

The judgment of the Court of Appeal was delivered or issued on 21 January 1997 which was about eight years after the amendments in question (Act A740) that came into force on 24 August 1989. It is surprising that the amendments (ss. 7C and 7D) were neither referred to nor mentioned in the judgment. The judgment, and perhaps the arguments too, went on as if no amendments had been made to the Ordinance.

With respect, we do not think that the judgment can stand in the light of the new ss. 7C and 7D.

As regards Abd. Rahman bin Haji Maidin v. Timbalan Menteri Dalam Negeri, Malaysia & 2 Ors. (supra), the detention order was made by the Deputy Minister under s. 6(1) of the DD (SPM) Act 1985. One of the grounds on which it was challenged was that the detention order was only issued on 7 October 1998 whereas the appellant’s last known criminal activities were in February 1998. This gap was not proximate enough in time to justify the detention order. The court, in its judgment, also referred to Yeap Hock Seng (supra) and Morgan a/l Perumal (supra). However, the court distinguished the two cases:

It would appear that the length of time calculated in the two cases cited, refers to the length of time the detainee was kept in custody before detention order was issued. It did not refer to the length of time the last act of criminal activities was known to the date the detention order was made.

and held:

In the instant appeal, the Deputy Minister has affirmed that the delay was due to the length of time it took the police to investigate into the appellant’s past activities. This we consider, is a legitimate and acceptable explanation and we say that on the circumstances of this appeal, the six months gap is not too remote as to render the detention order invalid.

Again, surprisingly, ss. 11C and 11D of DD (SPM) Act 1985, (which are similar to ss. 7C and 7D of the Ordinance and ss. 8C and 8D of the ISA 1960) were neither referred to nor mentioned.

Be that as it may, the amendments are there and must be given effect to by the courts. As we have said, there is no requirement anywhere in the law or the rules that a detention order must be made within a certain period of the alleged criminal acts. There is no limitation period, so to speak. That being so, there can be no noncompliance thereof. It is not the function of the court to create such a limitation period or a procedural requirement. The second ground also fails.

On these grounds, we dismiss the appeal.

DEMOCRACY IN PRACTICE IN MALAYSIA: SOME OBSERVATIONS

TALK AT THE MAXWELL SCHOOL OF CITIZENSHIP AND PUBLIC AFFAIRS

UNIVERSITY OF SYRACUSE, USA
7 April 2005

DEMOCRACY IN PRACTICE IN MALAYSIA: SOME OBSERVATIONS

By
Dato’ Abdul Hamid Mohamad
Judge, Federal Court Malaysia

 

Malaysia’s recorded history shows that about 1400 A.D. the Malay Kingdom of Malacca was founded. Under the influence of Arab and Indian traders, the Sultan and his subjects converted to Islam. Malacca was conquered by the Portuguese in 1511, by the Dutch in 1641 and by early 19th. century the whole of Malaya came under British influence or colonization.

Under the British, the Chinese and the Indians came in large numbers. The Chinese settled mainly in towns, the Indians mainly in the estates and the Malays remained in their traditional villages. The British policy was to separate them, socially, geographically and economically. Vernacular primary schools were built to cater for the respective races. English Schools, including secondary schools, were built in big the towns. Besides, the Chinese, being better off economically, had their own private Chinese Primary and Secondary Schools. So the Chinese were in a more favorable position, economically, educationally and so on.

Things remained that way until the Second World War. After the Second World War, the Malays started to clamor for independence. The Chinese and the Indians were not interested. They preferred British rule to what they perceived as “Malay rule”.

In 1955, i.e. 444 years after the first European rule started and two years before Independence, the first general election was held. In that election, the Alliance Party (the predecessor to the National Front), consisting of a coalition of the United Malay National Organization, the Malayan Chinese Party and the Malayan Indian Congress won 51 out of the 52 seats in Parliament.

Malaya obtained her independence in 1957. The Constitution was a social contract. The Malays retained their Sultans, the Malay language became the National Language, Islam became the religion of the Federation and special privileges were given to the Malays. The non-Malays were given full citizenship, allowed to practice their religions in peace and harmony in any part of the Federation (Art.3) and, even though, Malay language is the National Language, the Constitution provides that “…no person shall be prohibited or prevented from using (otherwise than for official purposes), or from teaching or learning, any other language.” (Art.152). Government Chinese and Tamil schools stand side by side with National Schools. So are mosques, temples and churches.

Malaysia is now a Federation of 13 states, nine of which have Malay Sultans. It is slightly larger then New Mexico, has about 26 million population consisting of about 58% (including other Bumiputras about 65%), about 26% Chinese, about 7% Indians and the rest others.

Since Independence in 1957 there has not been a change of government. The same party, the National Front consisting of 14 political parties has ruled the country under five Prime Ministers and twelve Kings. You may wonder why we have more Kings than Prime Ministers during a given period. The answer is that our King is elected by and from amongst the nine Sultans and holds office for five years only. After five years as King he goes back to his State as Sultan.

When Malaysia obtained her independence, there were doubts whether the country would survive. All the wrong ingredients appeared to be in the same pot. But, somehow it survived.

I would attribute it to the following factors even though I do not claim them to be exhaustive. First, the willingness of the indigenous Malays and later the natives of Sabah and Sarawak to share power with the non-natives. In the first general election, for example, there were very few constituencies with non-Malay majority. To give the non-Malays more representation, non-Malay candidates were fielded in the Malay-majority constituencies and all won. There has never been a single Indian-Majority constituency. Indian candidates, including Ministers, have been winning on Malay votes. In fact, when time looked bad, important Chinese candidates, e.g. Ministers were fielded in Malay-Majority constituencies.

The non-Malays too, are quite happy to maintain the status quo, of course, with some non-Malay opposition members in Parliament. The country is stable. Law and order is maintained. The government is comparatively fair and moderate. They have their share of the ever-expanding economy. So, the majority kept returning the same government election after election.

However, I think that the economic factor should be emphasized. Since Independence, generally speaking, the economy had been comparatively good. And the policy, as Mahathir explained it and I agree with him there, has been to expand the cake and share it, not to take the share of the Chinese and the foreigners and give it to the Malays or “bumiputras”, which literally means “sons of the soil” that includes all the native of the two Borneo States and, for certain purposes, even Malaysian of Thai and Portuguese origins.

Perhaps, another factor that made democracy work in Malaysia is the part played by the Court. A party dissatisfied with an election result may petition the Court to determine the validity of the election and the result. Courts have decided both ways, for and against the ruling party. In one case, in which I delivered the majority judgment of the Court of Appeal (2:1), a Chief Minister of a State from the ruling party who had won the election was disqualified. A fresh election was held, in which he was barred from re-contesting. I still got my promotion after that!

You will notice that political parties in Malaysia are race-based. The parties appeal to the respective races at the grass-roots and co-operate with the other parties at national level. Perhaps it is easier that way. What is important, though it may not be ideal, is that it works. And, let me add: it was not planned that way. It happened that way. At times, new self-proclaimed “multi-racial” parties were born. They either died in their infancy or a few that survived, survived as race-based parties too.

From the number of political parties in the National Front you will also notice that the national Front is broad-based. Not a single racial or ethnic group is not represented in the National Front. So, when a section of a racial or ethnic group is unhappy and vote for the opposition, the others save it.

Election campaigns are comparatively tame. As far as I can remember (and I have lived through all the general elections, so far) there had been no election-related murder or assassination in Malaysia. Election time is more like a fiesta. If there is a “war”, it is what is known as “flag war”.

Democracy in Malaysia that was introduced just before the country obtained her independence may not be perfect (which democracy is?) but it has worked reasonably well, against all odds. My personal view is that it is better to be realistic than idealistic. It is better to choose the material according to our climate and to cut our dress according to our size. I do not think that there is a standard material and a standard size for all and for all times.

Thank you.

TALK AT SYRACUSE UNIVERSITY LAW SCHOOL COMMON LAW AND ISLAMIC LAW IN MALAYSIA

 TALK AT SYRACUSE UNIVERSITY LAW SCHOOL

COMMON LAW AND ISLAMIC LAW IN MALAYSIA
5 April 2005

By

Dato’ Abdul Hamid Mohamad
Judge, Federal Court, Malaysia

 

Recorded history shows that Malay Kingdom of Malacca was founded in 1400 A.D. The law in force was Islamic and Malay Customary laws. Malacca was colonized by the Portuguese in 1511, by the Dutch in 1641 and later by the British. The whole of what is now Malaysia became a British colony or came under its “influence’ in early 19th century. The British introduced the English common law and equity and the English legal and judicial system. However the family law of the Malay-Muslims remained to be governed by Islamic law and the Malay customary law.

Earlier cases decided by British Judges seemed to accept that Islamic law was the law of the land. By the time Malaya obtained her independence (August 31,1957), English common law and the rules of equity, English legal and judicial systems were well entrenched.

The Federal Constitution contains provisions regarding the Federal Legislative List and the State Legislative List. Judiciary is a Federal matter. So are laws generally e.g. criminal law, contract, tort etc. But, the State List contains provisions that allow the State Legislatures to make laws on the following matters:

“… Islamic law and personal and family law of persons professing the
religion of Islam, including the Islamic law relating to succession, testate and intestate, betrothal, marriage, divorce, dower, maintenance, adoption, legitimacy, guardianship, gifts, partitions and non-charitable trusts; Wakafs……; ….creation and punishment of offences by persons professing the religion of Islam against precepts of that religion except in regard to matters included in Federal List; the constitution, organization and procedure of Syariah courts, which shall have jurisdiction only over persons professing the religion of Islam and in respect of any of the matters included in this paragraph, but shall not have jurisdiction in respect of offences except in so far as conferred by federal law, the control of propagating doctrines of beliefs among persons professing the religion of Islam; the determination of matters of Islamic law and doctrine and Malay custom.”

Shariah Courts were established soon after independence. Their jurisdictions were limited. Even today, they only have jurisdictions over Muslims and only in the respective States. Their jurisdictions cover mainly matrimonial matters, like marriage, divorce, custody of children, maintenance of wife and children. Laws administered by Shariah Courts provide for a number of offences, mainly relating to non-compliance with the requirements of the law e.g. failure to register a marriage or divorce.

It is not quite right to say that the Shariah courts are equal to the common law courts (or “civil courts”). Jurisdictions, both geographical and substantive, are limited, the powers are limited.

With the so-called resurgence of Islam, the Islamic-educated began to call for more jurisdiction and power of the Shariah Courts, not only to put them at par with the common law courts but, even to replace the latter. Similarly, they want Islamic law to replace the existing law, without even knowing what is to be replaced with what except to say that the man-made law should be replaced with God-made law, as if the so-called Islamic law is all God-made law and that there are no non-prophet human opinions in it.

In an attempt to improve the administration of the Shariah Court, civil and criminal procedures were made, ironically by the so-called “secular” lawyers, of course with the assistance of Islamic scholars. The procedures in the common law courts were adopted with necessary modifications. The courts were renamed similar to the common law courts. Even the dress code and the manner of addressing Judges in the common law courts were adopted. Thus, the Shariah Courts and Judges try to look like the common law courts and Judges in order to be equal.

Is there room for conflict of jurisdictions? The answer is certainly “yes”. The first case arose in 1971. The High Court held that it (the common law court) still had jurisdiction over guardianship and custody of Muslim children even though similar jurisdiction was given to the Shariah Courts with the establishment of Shariah Courts. This led to the amendment of the Federal Constitution which, inter alia, says:

“ The (common law) courts… shall have no jurisdiction in respect of any matter within the jurisdiction of the Syariah courts.”

Almost everybody seemed to have thought that the amendment had solved all jurisdictional problems. I think that is wrong. It solves some of the problems but not all. In my view the problems will still arise in the following instances:

First, where in a case, a party is a Muslim and the other is not and the subject matter is within the jurisdiction of the Shariah Courts. Which court should hear the case?

Secondly, even where both parties are Muslims but the case involves issues of Islamic law within the jurisdiction of the Shariah Court as well as common law issues which are within the jurisdiction of the common law courts. Which court should hear the case?

Thirdly, in interpreting the Constitution and the statutes, there may be conflicting decisions, with each court saying it has jurisdiction over the matter. Of course the common law court will say that its decision prevails.

To make matters worse, since the amendment to the Constitution, more offences have been created in the State Islamic laws, some of them overlapping with criminal offences in the Penal Code that had been in existence since before Independence and which, under the Constitution are within the jurisdiction of the common law court. Are they not ultra vires the Constitution? I do not want to prejudge the issue.

In the field of law, Malaysia has gone one step further. We have made laws, Federal laws, on Islamic banking and “Takaful” (Islamic insurance). They are administered by the common law courts.

Recently, by law, the National Bank of Malaysia has established a “Shariah Advisory Council” to advice on Islamic banking and Islamic insurance. It is intended that all issues of Islamic law on Islamic banking and Islamic insurance, arising in courts or elsewhere, e.g. financial institutions, be refereed to the Council for its decision

In Malaysian context, I personally think that the two judicial systems should be merged into one under the common law courts with judges appointed from both streams. Matters now within the jurisdiction of the Shariah courts and where all the parties are Muslims should be heard by Judges trained in Islamic law. Matters now within the jurisdiction of the common law courts, whether the parties are Muslims or non-Muslims, should be heard by the Judges trained in common law. Cases in which Islamic law and common law issues arise should be heard by two judges, one trained in common law and the other in Islamic law.

The law, where desirable, should be harmonized. Certain Islamic law principles may be adopted and absorbed into the “Malaysian Common Law”.

There is talk about it, but very little is being done. The problem is that those who know common law do not know Islamic law, those who know Islamic law do not know common law, those who know a bit of both, i.e. the academician, have never practiced law and those who are most vocal hardly know any law.

It is a long way to go. In the meantime, the most practical thing to do is to carry on, with the common law courts playing the dominant role.

Thank you.

PP v. AWANG RADUAN AWANG BOL

FEDERAL COURT, PUTRAJAYA
STEVE SHIM, CJ (SABAH & SARAWAK); ABDUL HAMID MOHAMAD, FCJ; ALAUDDIN MOHD SHERIFF, FCJ
CRIMINAL APPEAL NO: 05-60-2002 (Q)
[2005] 1 CLJ 649
CRIMINAL LAW: Penal Code – Section 300 – Murder – Accused convicted by High Court – Conviction reduced to ‘culpable homicide not amounting to murder’ by Court of Appeal on ground that High Court failed to consider defence of ‘sudden fight’ – Section 300, Exception 4 – Whether trial judge must consider every possible defence – Whether a misdirection if he did not – Whether accused would have been able to establish ingredients of Exception 4 – ‘Without premeditation in a sudden fight in the heat of passion upon a sudden quarrel’ – ‘Without the offender having taken undue advantage or acted in a cruel or unusual manner’ – Whether there was any fight at all

The accused was tried, convicted and sentenced to death in the High Court for the murder of a man. The trial judge had rejected his defence of ‘intoxication’ and/or ‘grave and sudden provocation’ under Exception 1 to s. 300 of the Penal Code (‘the Code’). On appeal, however, the Court of Appeal reduced the charge to ‘culpable homicide not amounting to murder’ and sentenced the accused to 18 years of imprisonment. Whilst accepting the conclusions of the trail judge on the issue of ‘grave and sudden provocation’, the justices of appeal felt that he had misdirected himself in not considering the possible defence of ‘sudden fight’ under Exception 4 to s. 300 of the Code. Dissatisfied, the Public Prosecutor appealed to the Federal Court.
Held (allowing the appeal)
Per Abdul Hamid Mohamad FCJ delivering the judgment of the court:
[1] There was no need for the trial judge to refer to the defence of ‘sudden fight’ under Exception 4 to s. 300 of the Code in his judgment. This was because the accused would not, on the facts, have been able to establish the ingredients that make up Exception 4 to s. 300 of the Code, to wit,”without premeditation in a sudden fight in the heat of passion upon a sudden quarrel”and”without the offender having taken undue advantage or acted in a cruel or unusual manner”. Indeed, there was no sudden fight or any fight at all. There was a verbal exchange over money and, one hour later, the accused came back with an axe and a knife with which he hacked and stabbed the accused to death. In the final analysis, it would not, as the Privy Council opined in Mohamed Kunjo v. PP,”assist the administration of criminal justice if there were to be cast upon the High Court the duty of reciting in judgment only to reject every defence that might have been raised but was not”.
[Decision of Court of Appeal overturned; judgment of High Court confirmed.]
[Bahasa Malaysia ]Translation Of Headnotes
Tertuduh telah dibicara, disabit dan dijatuhkan hukuman mati oleh Mahkamah Tinggi kerana membunuh seorang lelaki. Hakim bicara telah menolak pembelaan ‘mabuk’ dan/atau ‘bangkitan marah besar dan mengejut’ di bawah Pengecualian 1 s. 300 Kanun Keseksaan (Kanun’) yang dikemukakan tertuduh. Bagaimanapun, semasa rayuan, mahkamah rayuan menurunkan pertuduhan kepada ‘homisid salah tidak sampai membunuh’ dan menjatuhkan hukuman 18 tahun penjara. Sementara menerima konklusi hakim bicara atas isu ‘bangkitan marah besar dan mengejut’, hakim-hakim rayuan berpendapat bahawa beliau telah tersalah arah akan dirinya kerana gagal mempertimbang kemungkinan wujudnya pembelaaan ‘perkelahian mengejut’ di bawah Pengecualian 4 s. 300 Kanun. Tidak berpuas hati, Pendakwa Raya merayu ke Mahkamah Persekutuan.
Diputuskan (membenarkan rayuan)
Oleh Abdul Hamid Mohamad HMP menyampaikan penghakiman mahkamah:
[1] Tiada keperluan bagi hakim bicara untuk merujuk kepada pembelaan ‘pergaduhan mengejut’ di bawah Pengecualian 4 s. 300 Kanun dalam penghakimannya. Ini kerana tertuduh, di atas fakta, tidak berupaya untuk membuktikan ingredien-ingredien yang terkandung dalam Pengecualian 4, iaitu”tanpa direncanakan dalam satu pergaduhan mengejut dalam keadaan marah yang berbangkit dari pergaduhan mengejut”dan”tanpa pesalah tersebut mengambil peluang tidak wajar atau bertindak dengan kejam atau secara luar biasa”. Malah, tidak wujud sebarang pergaduhan mengejut atau apa-apa pergaduhan sekalipun. Apa yang wujud adalah suatu pertengkaran mengenai wang, dan sejam kemudian, tertuduh datang semula dengan sebilah kapak dan pisau dengan mana beliau menetak dan menikam mangsa sehingga mati. Pada analisa terakhir, sepertimana yang dikatakan oleh Privy Council dalam Mohamed Kunjo v. PP, ianya tidak akan”membantu pentadbiran keadilan jenayah sekiranya beban diletak ke atas Mahkamah Tinggi untuk membincang dan menolak dalam penghakimannya setiap pembelaan yang mungkin dibangkitkan tetapi yang tidakpun dibangkitkan.
Keputusan Mahkamah Rayuan diakas; keputusan Mahkamah Tinggi disahkan.]

Case(s) referred to:
Mohamed Kunjo v. PP [1977] 1 LNS 74; [1978] 1 MLJ 5 (foll)

Legislation referred to:
Penal Code, s. 304(a)
Counsel:
For the accused – Hii Hieng Singh; M/s Hii & Co
For the prosecution – Nurhuda Nuraini Mohd Noor DPP

Reported by Gan Peng Chiang

Case History:
Federal Court : [2005] 1 LNS 16
High Court : [1997] 1 LNS 431

JUDGMENT

Abdul Hamid Mohamad FCJ:
The respondent (the accused in the High Court and the appellant in the Court of Appeal) was charged as follows:
That you, on the 25th day of November, 1994 at about 9.50 p.m. at Kampung Tutus Hilir, Mukah, in the District of Mukah, in the State of Sarawak, committed murder by causing the death of one Awang Jamli b. Awang Sani (m) and that you have thereby committed an offence punishable under Section 302 of the Penal Code.
The trial judge found the respondent guilty of the offence charged, convicted him and sentenced him to death. He appealed to the Court of Appeal which allowed his appeal and reduced the charge to one under s. 304(a) of the Penal Code and sentenced him to 18 years imprisonment from 26 November 1994, ie, the date of arrest. The public prosecutor appealed to this court. We allowed the appeal and confirmed the judgment and sentence of the High Court.
The facts are quite straight forward. On 25 November 1994 about 8pm Sabri bin Jol (“Sabri”) and Awang Jamli bin Awang Sani (“the deceased”) were in Yong Rang coffee shop. Then Rozlan and Ariffin joined them. Later the respondent (the accused) came to the shop. They all drank alcoholic drinks. The respondent then asked money from the deceased. The deceased told the respondent that he only had RM1.50. When the deceased did not give any money to the respondent, the respondent said”kedekut”in an angry manner. The respondent then asked for money from Yii Yong Kang (“Yong Kang”) who gave him 50 cents. According to Yong Kang, after he gave the respondent 50 cents, the respondent said “Kedekut” and “Celaka” very loudly.
After they had finished drinking, Ariffin and the deceased went to the junction off Jalan Kampung Tutus Hilir and Jalan Kampung Bedanga while Sabri went home.
At about 9pm Rozlan was playing chess with the deceased at the said junction. Later Awang Roslan came and joined them. After that the respondent came and left after a short while. After the respondent left, Rozlan went home as he was hungry. Then the respondent came back. The respondent hacked the deceased with an axe. The deceased defended himself with his hands. The axe was thrown off. After that the respondent stabbed the deceased with a knife. Awang Roslan told the respondent to stop but the respondent ignored his plea.
It is to be noted that the deceased suffered five injuries. The first was a superficial wound on the forehead measuring 4 1/2 cm by 1/2 cm. There were two injuries on the chest, one on the left, an oval-shaped wound measuring 3cm by 1 1/2 cm. On the right side, there was an irregular shaped wound measuring 6 1/2 cm by 2 cm. On the back of the deceased there were two injuries, one, a linear incised wound 5 cm by 1/2 cm above the left scapular and the other, an oval incised wound 4cm by 1 1/2 cm at the left inter-scapular region which caused hypovolemic shock (ie, massive bleeding). The last-mentioned injury penetrated the heart that caused massive bleeding which caused the death of the deceased.
In the High Court, the respondent put up a defence of intoxication and grave and sudden provocation. Both were rejected by the learned trial judge.
The Court of Appeal, in a 5 page judgment, agreed with the learned trial judge regarding the defence of intoxication and grave and sudden provocation. This part of the judgment is worth quoting:
8. On the defence of drunkenness and provocation (exception 1) as dealt with by the learned trial judge, we have no quarrel with his lordship’s finding. However, what troubled us is with regard to the evidence as enumerated above. Based on the above evidence, it raised a possible defence of a sudden fight as envisaged under exception 4 to s. 300 of the Penal Code, which the learned judge failed to consider (see the case Haji Talib v. PP [1969] 1 MLJ 94). The said exception states:
Exception 4 Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel, and without the offender having taken undue advantage or acted in a cruel or unusual manner.
Such omission, in our view, is tantamount to a misdirection.
9. At the time of the incident, the accused was armed with an axe and a knife. It is quite possible that had the learned judge directed his mind on exception 4, the very nature of the stab wounds inflicted on the deceased, might be held to have taken the case out of the exception by reason of the accused appearing to have taken undue advantage of the deceased and having acted in a cruel or unusual manner. However, this was a question of fact for the learned judge to consider.
10. In the premise and for reasons given above, we allow the appeal on conviction and substitute therefor a verdict of culpable homicide not amounting to murder, punishable under s. 304(a) of the Penal Code.
It is to be noted that while agreeing with the judgment of the learned trial judge, the Court of Appeal held that there was a misdirection on the part of the learned trial judge for not considering the defence of”sudden fight in the heat of passion upon a sudden quarrel”as provided by exception 4 to s. 300 of the Penal Code. That was the only reason why the Court of Appeal reversed the judgment of the High Court. This is in spite of what the Court of Appeal said in para. 9 of the judgment quoted above, briefly, that it was quite possible that had the learned trial judge directed his mind to exception 4 and the fact that the respondent was armed with an axe and a knife and the nature of the stab wounds inflicted on the deceased, the learned trial judge might have held that the facts would have”taken the case out of the exception by reason of the accused (respondent-added) appearing to have taken undue advantage of the deceased and having acted in a cruel and unusual manner.”
The Court of Appeal added:
However, this was a question of fact for the learned judge to consider.
In other words, the stand taken by the Court of Appeal was that, as the learned trial judge did not consider the defence under exception 4 (“sudden fight”) it was a misdirection and therefore the conviction must be quashed.
Regarding the relevant law, the case of Mohamed Kunjo v. PP [1977] 1 LNS 74 [1978] 1 MLJ 5, a Privy Council appeal from Singapore is of utmost importance.
Let us first look at the facts of that case. The appellant and the deceased were friends. Both worked for the same employer. Both lived in a store belonging to the employer though in separate rooms. On the day and at the time in question, both of them who appeared to be highly intoxicated were seen sitting on a stack of poles. They were talking loudly and laughing. They got down from the sack and began to argue. The argument generated into wrestling. As they grappled with each other they fell down, got up and fell down again. This happened several times. They punched each other as they fought. Suddenly the appellant ran toward the store where a lorry was parked and returned with the exhaust pipe of a motor vehicle. He then rushed at the deceased, who was standing up and delivered one blow on his head with the exhaust pipe. The deceased tried to defend himself with his hands, but almost at once fell to the ground. The appellant then hit his head three or four times with the exhaust pipe. He then threw the exhaust pipe on the ground and walked away. The deceased died.
It is to be noted that in that case the defence of “sudden fight” was not brought up either in the High Court or the Court of Appeal. The defence was also not considered by both courts. However, it was brought up for the first time at the Privy Council.
The Privy Council held (headnotes):
(3) a defence based upon an exception which the defendant has to prove may be raised for the first time before the Board if the Board considers that otherwise there would be risk of failure of justice. The test must be whether there is sufficient evidence upon which a reasonable tribunal could find the defence made out. If there be such evidence, the court of trial should have expressly dealt with it in its judgment and the Judicial Committee will deal with it on appeal, even though it has not been raised below;
(4) in the face of the evidence in this case, the appellant could not show that he had not taken undue advantage or acted in a cruel or unusual manner and therefore there was no need for the trial judges to refer to the defence of sudden fight in their judgment.
Lord Scarman, inter alia said:
Moreover, it would not, in our judgment, assist the administration of justice if there were to cast upon the High Court the duty of reciting in judgment only to reject every defence that might have been raised but was not.
The judgment went on to say as follows:
We turn now to the question whether in the present case the evidence was such that the High Court could have reasonably concluded that the defence of sudden fight was made out. There was evidence that the act causing death was done without premeditation….
In the present case there was evidence that suggested strongly the absence of any element of design or planning. There was also evidence that the blow, or blows, were struck “in a sudden fight in the heat of passion upon a sudden quarrel”, though there was also evidence (ie, going in search of the weapon, returning with it, and striking the deceased when he appeared to be neither aggressive nor on his guard) which suggested the contrary. But formidable difficulties face the appellant when he attempts to show that the act causing death was committed “without the offender having taken undue advantage or acted in a cruel or unusual manner”. The appellant, who had been engaged in a fight with the deceased, ran to get a weapon and returned to attack the defenceless deceased with a truly murderous weapon, the exhaust pipe, a photograph of which we have seen. The evidence of the assault shows that the deceased was taken by surprise and attacked with a very unusual and unexpected weapon, a heavy blow on the head from which could reasonably be expected to be lethal….
In the face of the evidence, we do not see how the appellant could prove that he had not taken undue advantage or acted in a cruel or unusual manner.
There was therefore, no need for the trial judge to refer to the exception in judgment. Indeed, had the trial been a jury trial, we doubt whether the judge would have considered it necessary to put the defence to the jury. In our judgment, therefore, the appellant’s argument based on the exception of “sudden fight” fails.
Having said that, the Privy Council dismissed the appeal which, in effect, means that the conviction was affirmed, even though on the facts, in our view, the case for the appellant in that case was much stronger than in this case.
In the present case, like in Mohamed Kunjo (supra), the defence was never raised in the High Court or in the Court of Appeal. But the Court of Appeal took upon itself to consider the defence in its judgment. The court had in fact gone further than what had happened in Mohamed Kunjo (supra). In that case, at least the defence was raised by the appellant before the Privy Council. However, we are prepared to accede that the Court of Appeal was not prevented from considering that defence but, on condition that there must be sufficient evidence upon which a reasonable tribunal could find the defence made out.
Is there such evidence? We find none. First there was no sudden fight, indeed there was no fight at all. The deceased was drinking with his friends when the respondent came to the shop. He too drank. Then he asked for money from the deceased. When the deceased did not give him money he angrily said “kedekut”. He went away. More than one hour later, when the deceased and his friends were playing chess at the junction the respondent came for a while and went away. Soon he came back armed with an axe and a knife. He struck the deceased with the axe. The axe having fallen, he stabbed the deceased with his knife. The injury on the forehead of the deceased must have been caused by the axe and four more injuries obviously were caused by stabbing, one of which, on the back, punctured the heart. There was no quarrel before that. The deceased tried to defend himself with his arm when he was attacked with the axe. The struggle began after the deceased was attacked with the axe.
Indeed, the respondent admitted in cross examination that at the material time he wanted to punish the deceased and that he wanted to use the axe and the knife for the purpose. He agreed that normally he did not carry an axe and a knife. He agreed that he went home to look for the knife and the axe which he had to search and it took quite a long time. He agreed that he waited about 20 feet away from the deceased for people to go away from the deceased. He agreed that he went suddenly to the deceased without warning. He agreed that it was wrong to attack the deceased and added that it was a mistake. He agreed that he knew that the deceased could not fight him as the deceased was not armed and smaller than him. He agreed that he attacked the deceased to revenge his anger earlier on at Yong Kang coffee shop. He agreed that he had a grudge against the deceased because the deceased always promised him for a drink but never did so.
On such evidence and coming from the respondent himself, it is clear that the respondent did not hack the deceased with the axe and stabbed him with the knife in a sudden fight in the heat of passion, upon a sudden quarrel. The elements of design or planning is there. In the face of such evidence we do not see how the respondent could ever succeed in proving the sudden fight.
Secondly, to succeed in that defence, the respondent must prove that he had not taken undue advantage or acted in a cruel manner. Again, in the face of the evidence, we do not see how he could ever succeed in proving that ingredient. If we compare the facts of this case with that of Mohamed Kunjo (supra), the facts inMohamed Kunjo, (supra) are more favourable to the accused, yet the Privy Council held that it could not see how he could prove that he had not taken undue advantage or acted in a cruel manner.
With respect, the Court of Appeal did not sufficiently consider the evidence. The evidence of the respondent quoted by the Court of Appeal in its judgment, even if it is meant to support the argument of a sudden fight, clearly does not support it. The respondent was asked”Did Awang Jamli (deceased added) respond after (emphasis added) you hit him with the axe? The respondent’s reply was “Yes. We were struggling with each other”. The struggle only started after the respondent hacked the deceased with the axe. There was no quarrel, no sudden fight. It was a cold blooded attack first with the axe followed with the knife. In the circumstances, we are of the view that the Court of Appeal had misdirected itself.
For these reasons, we allowed the appeal set aside the order of the Court of Appeal and confirmed the conviction and sentence imposed by the High Court.

MUZAKARAH ANTARA MAJLIS FATWA KEBANGSAAN DAN MAJLIS-MAJLIS PENASIHAT SYARIAH MENGENAI URUSAN MUAMALAT, PERBANKAN DAN KEWANGAN ISLAM

MUZAKARAH ANTARA MAJLIS FATWA KEBANGSAAN DAN MAJLIS-MAJLIS PENASIHAT SYARIAH MENGENAI URUSAN MUAMALAT, PERBANKAN DAN KEWANGAN ISLAM

31 Disember 2004

NOTA

 

TUJUAN UTAMA:

Tujuan utama mengadakan muzakarah adalah:
(I) membincangkan interaksi bidang kuasa serta fungsi Majlis Fatwa Negeri sebagai badan yang diberi kuasa di bawah perundangan negeri bagi penentuan hukum-hukum Syarak, dan kaitan fungsi Majlis Fatwa Kebangsaan berhubung penentuan hukum Syarak bagi produk kewangan dan perbankan Islam;
(II) serta mengenal pasti bentuk kerjasama yang dapat diterima antara Majlis Penasihat Syariah Suruhanjaya Sekuriti, Majlis Penasihat Syariah Bank Negara Malaysia dan Majlis Fatwa Kebangsaan.

Seksyen Syariah, Jabatan Peguam Negara mengemukakan pandangan seperti yang berikut:

“INTERAKSI BIDANG KUASA: PENENTUAN HUKUM SYARAK, PERUNDANGAN KOMERSIL DAN PERBANKAN ISLAM”

LATAR BELAKANG:

 Kewangan Islam telah berkembang pesat. Pada mulanya perbankan Islam lebih kepada penawaran alternatif secara asas kepada akaun-akaun dan pinjaman-pinjaman konvensional yang berasaskan faedah. Kini, penawaran perkhidmatan kewangan Islam adalah lebih kompleks dengan peluasan aktiviti-aktiviti kepada penawaran pembiayaan modal, pelaburan harta tanah (REIT), dana ekuiti, kad kredit dan takaful.
 Seiring dengan pembangunan perkhidmatan kewangan Islam pada masa kini, Malaysia telah dinobatkan sebagai negara yang paling maju dalam penerokaan dan pembangunan sistem kewangan Islam yang komprehensif meliputi sektor perbankan Islam, takaful, pasaran modal Islam dan pasaran kewangan Islam.

 Malaysia menandatangani Memorandum Persefahaman dengan Bank Pembangunan Islam (IDB) bagi tujuan mempromosikan amalan takaful di negara-negara Islam. Langkah ini menjadikan Malaysia sebagai negara yang memainkan peranan penting dalam meningkatkan kemajuan perkhidmatan kewangan Islam di kalangan negara-negara Islam.

 Pelbagai inisiatif telah diambil oleh Malaysia dalam membangunkan perkhidmatan kewangan Islam di peringkat domestik dan antarabangsa. Inisiatif Malaysia dalam bidang perkhidmatan kewangan Islam telah mendapat pengiktirafan daripada negara-negara Islam dan bukan Islam.

Di peringkat domestik, antara perundangan Persekutuan mengenai urusan perkhidmatan kewangan Islam ialah Akta Bank Islam 1983 [Akta 276], Akta Takaful 1984 [Akta 312], Seksyen16B Akta Bank Negara 1958 [Akta 519] dan Seksyen 124 Akta Bank dan Institusi-Institusi Kewangan 1989 (BAFIA) [Akta 372].
Kewangan dan Perbankan (Islam): pembahagian bidang kuasa dalam Perlembagaan Persekutuan

Struktur pembahagian bidang kuasa yang diperuntukkan dalam Perlembagaan Persekutuan ialah-
a) Kewangan, menurut Butiran 7 Senarai I, termasuklah perbankan, perdagangan, pajak gadai, takaful, pasaran wang adalah perkara yang disenaraikan di bawah Senarai Persekutuan;

b) Penentuan perkara mengenai hukum dan doktrin Syarak pula adalah di bawah Senarai Negeri di mana Dewan Undangan yang boleh membuat undang-undang mengenainya.

a) Bidang kuasa persekutuan : peruntukan berkaitan hukum syarak menurut Perlembagaan Persekutuan

Senarai I, Jadual Kesembilan, Perlembagaan Persekutuan
 Petikan Butiran 4(e)

“(e) Tertakluk kepada perenggan (ii), perkara yang berikut-
(i) Kontrak; perkongsian, agensi dan kontrak khas yang lain; majikan dan perkhidmat; rumah inapan dan tuan rumah inapan; perbuatan salah boleh dakwa; harta dan pindah hakmiliknya serta hipotekasinya, kecuali tanah; bona vacantia; ekuiti dan amanah; perkahwinan, perceraian dan kesahtarafan; harta dan taraf perempuan bersuami; pentafsiran undang-undang persekutuan; surat cara boleh niaga; akuan berkanun; timbang tara; undang-undang persaudagaran; pendaftaran perniagaan dan nama perniagaan; umur dewasa; budak-budak dan orang belum dewasa; pengangkutan; pewarisan, berwasiat dan tidak berwasiat; probet dan surat kuasa mentadbir; kebankrapan dan ketidakmampuan bayar; sumpah dan ikrar; batasan; penguatkuasaan bersaling penghakiman dan perintah; undang-undang keterangan;

(ii) perkara yang disebut dalam perenggan (i) tidak termasuk undang-undang diri Islam yang berhubungan dengan
perkahwinan, perceraian, penjagaan, nafkah, pengangkatan, kesahtarafan, undang-undang keluarga, alang atau pewarisan, berwasiat dan tidak berwasiat;”

Penjelasan:
 Perkara-perkara yang disenaraikan dalam Butiran 4(e)(i) adalah bersifat umum iaitu tidak dihadkan kepada undang-undang sivil sahaja tetapi termasuk juga elemen penentuan Hukum Syarak dan undang-undang Islam
– sebagai contoh, undang-undang kontrak, daripada peruntukan umum yang disebutkan di atas, Kerajaan Persekutuan mempunyai bidang kuasa untuk menggubal undang-undang sama ada undang-undang sivil ataupun undang-undang Islam yang berkaitan dengan kontrak

 Ini adalah kerana Butiran 4(e)(ii) tidak mengecualikan undang-undang kontrak Islam, hanya mengecualikan perkara-perkara tertentu berkaitan dengan undang-undang diri Islam sahaja

 Skop bidang kuasa terhadap undang-undang diri Islam berkaitan perkahwinan, perceraian, nafkah dan sebagainya telah jelas disenaraikan di bawah Butiran 1 Senarai Negeri.

 Kesimpulannya, perundangan komersil seperti undang-undang kontrak Islam dan undang-undang perdagangan Islam contohnya, merupakan perkara di bawah bidang kuasa Kerajaan Persekutuan

 Petikan Butiran 4(k)
“(k) Penentuan hukum Syarak dan undang-undang diri yang lain bagi maksud undang-undang persekutuan”
Penjelasan :
 Peruntukan ini kelihatannya membuka ruang kepada Kerajaan Persekutuan membuat penentuan mengenai Hukum Syarak bagi maksud undang-undang Persekutuan. Oleh itu, apabila dibaca peruntukan di bawah Butiran 4(e) dan (k) bersama-sama, ia membawa maksud bahawa bagi penentuan Hukum Syarak berkaitan undang-undang kontrak, perdagangan dan perbankan, bagi maksud undang-undang Persekutuan, adalah di bawah bidang kuasa Persekutuan.
 Petikan Butiran 7
“7. Kewangan, termasuk-
(j) Perbankan; pemberian pinjaman wang; pemegang pajak gadai; kawalan kredit;

(k) Bil pertukaran, cek, nota janji hutang dan surat cara lain yang seumpamanya;

(l) Pertukaran asing; dan

(m) Terbitan modal; bursa saham dan bursa komoditi”

Penjelasan:
 Apa-apa transaksi kewangan adalah dalam bidang kuasa Persekutuan .Berdasarkan Butiran 4(e) dan (k) tersebut di atas, undang-undang Persekutuan boleh digubal bagi mengawal selia transasi kewangan dan perbankan Islam

 Bagi Butiran 7(j) agensi yang bertanggungjawab mengawal selia aktiviti perbankan, pemberian pinjaman wang, pemegang pajak gadai dan kawalan kredit ialah Bank Negara Malaysia. Bagi tujuan menjalankan aktiviti perbankan secara Islam pula Seksyen 16B Akta Bank Negara Malaysia 1958 [Akta 519] memperuntukkan bahawa Majlis Penasihat Syariah harus menjadi otoriti dalam penentuan hukum Syarak bagi tujuan perniagaan perbankan Islam, perniagaan takaful, perniagaan kewangan Islam, perniagaan pembangunan kewangan Islam atau apa-apa perniagaan yang berlandaskan prinsip-prinsip Syariah. Melalui peruntukan ini jelas bahawa Bank Negara Malaysia mempertanggungjawabkan Majlis Penasihat Syariah bagi mengawal segala aktiviti yang berlandaskan prinsip-prinsip Islam.

 Bagi Butiran 7(m) agensi yang bertanggungjawab mengawal selia aktiviti terbitan modal, bursa saham dan bursa komoditi ialah Suruhanjaya Sekuriti dan bagi tujuan pengawalan aktiviti-aktiviti tersebut secara Islam Majlis Penasihat Syariah telah diberi mandat untuk memikul tanggungjawab tersebut.

b) Bidang kuasa negeri: peruntukan mengenai hukum syarak menurut Perlembagaan Persekutuan dan perundangan negeri

1) Perlembagaan Persekutuan

Senarai II, Jadual Kesembilan Perlembagaan Persekutuan
Petikan Butiran 1
“1. Kecuali mengenai Wilayah Persekutuan Kuala Lumpur, Labuan dan Putrajaya, hukum Syarak dan undang-undang diri dan keluarga bagi orang yang menganut agama Islam, termasuk hukum Syarak yang berhubungan denga pewarisan, berwasiat dan tidak berwasiat, pertunangan, perkahwinan, perceraian, mas kahwin, nafkah, pengangkatan, penjagaan, alang, pecah milik dan amanah bukan khairat; Wakaf dan takrif serta pengawalseliaan amanah khairat dan agama, pelantikan pemegang amanah dan pemerbadanan orang berkenaan dengan derma kekal agama dan khairat, institusi, amanah, khairat dan institusi khairat Islam yang beroperasi keseluruhannya di dalam Negeri; adat Melayu; Zakat, Fitrah dan Baitulmal atau hasil agama Islam yang seumpamanya; masjid atau mana-mana tempat sembahyang awam untuk orang Islam, pewujudan dan penghukuman kesalahan yang dilakukan oleh orang yang menganut agama Islam terhadap perintah agama itu, kecuali berkenaan dengan perkara yang termasuk dalam Senarai Persekutuan; keanggotaan, susunan dan tatacara mahkamah Syariah, yang hendaklah mempunyai bidang kuasa hanya ke atas orang yang menganut agama Islam dan hanya berkenaan dengan mana-mana perkara yang termasuk dalam perenggan ini, tetapi tidak mempunyai bidang kuasa berkenaan dengan kesalahan kecuali setakat yang diberikan oleh undang-undang persekutuan, mengawal pengembangan doktrin dan kepercayaan di kalangan orang yang menganut agama Islam; penentuan perkara mengenai hukum dan doktrin Syarak dan adat Melayu.”

2) Perundangan Negeri

(I) Majlis Fatwa Negeri

Petikan Seksyen 49 Enakmen Pentadbiran Agama Islam (Negeri Selangor) 2003
“Fatwa yang disiarkan dalam Warta adalah mengikat
(1) Apabila disiarkan dalam Warta, sesuatu fatwa hendaklah mengikat tiap-tiap orang Islam yang berada di negeri Selangor sebagai ajaran agamanya dan hendaklah menjadi kewajipannya di sisi agama Islam untuk mematuhi dan berpegang dengan fatwa itu, melainkan jika dia dibenarkan oleh Hukum Syarak untuk tidak mengikut fatwa itu dalam perkara-perkara amalan peribadi.

(2) Sesuatu fatwa hendaklah diiktiraf oleh semua Mahkamah di dalam negeri Selangor tentang semua perkara yang dinyatakan dalamnya.”

Petikan Seksyen 53 Enakmen Pentadbiran Agama Islam (Negeri Selangor) 2003

“Meminta pendapat daripada Jawatankuasa Fatwa

Jika dalam mana-mana Mahkamah selain Mahkamah Syariah,apa-apa persoalan Hukum Syarak perlu diputuskan, Mahkamah itu boleh meminta pendapat Jawatankuasa Fatwa tentang persoalan itu, dan Mufti boleh memperakukan pendapat Jawatankuasa Fatwa itu kepada Mahkamah yang membuat permintaan itu.”

(II) Mahkamah Syariah.

Petikan Seksyen 46(2) Akta Pentadbiran Undang-Undang Islam (Wilayah-Wilayah Persekutuan)1993 [Akta 505]

“(2) Mahkamah Tinggi Syariah hendaklah-
(a) dalam bidang kuasa jenayahnya, membicarakan apa-apa kesalahan yang dilakukan oleh seseorang Islam dan boleh dihukum di bawah Enakmen atau Akta Undang-Undang Keluarga Islam (Wilayah-Wilayah Persekutuan) 1984, atau di bawah mana-mana undang-undang bertulis lain yang menetapkan kesalahan-kesalahan terhadap rukun-rukun agama Islam yang sedang berkuatkuasa, dan boleh mengenakan apa-apa hukuman yang diperuntukkan baginya;
(b) dalam bidang kuasa malnya, mendengar dan memutuskan semua tindakan dan prosiding yang mana semua pihak adalah orang Islam dan yang berhubungan dengan-
(i) pertunangan, perkahwinan, ruju’, perceraian, pembubaran perkahwinan (fasakh), nusyuz, atau pemisahan kehakiman (faraq) atau apa-apa perkara yang berkaitan dengan perhubungan diantara suami isteri;

(ii) apa-apa pelupusan atau tuntutan harta yang berbangkit daripada mana-mana perkara yang dinyatakan dalam subperenggan (i);

(iii) nafkah orang-orang tanggungan, kesahtarafan, atau penjagaan atau jagaan (hadhanah) budak-budak;
(iv) pembahagian atau tuntutan harta sepencarian;

(v) wasiat atau alang semasa marad-al-maut seseorang si mati Islam;

(vi) alang semasa hidup, atau penyelesaian yang dibuat tanpa balasan yang memadai dengan wang atau nilaian wang, oleh seorang orang Islam;

(vii) wakaf atau nazr;
(viii) pembahagian dan pewarisan harta berwasiat atau tak berwasiat;

(ix) penentuan orang-orang yang berhak kepada bahagian harta pusaka seseorang si mati Islam atau bahagian-bahagian yang kepadanya orang-orang itu masing-masing berhak; atau
(x) perkara-perkara lain yang berkenaan dengannya bidang kuasa diberikan oleh mana-mana undang-undang bertulis.”
Penjelasan:
 Senarai perkara-perkara di bawah Butiran 1, Senarai II, Jadual Kesembilan, Perlembagaan Persekutuan ini meliputi undang-undang diri Islam (Islamic personal laws) sahaja.

 Kerajaan Negeri mempunyai kuasa perundangan dalam penentuan perkara mengenai hukum dan doktrin Syarak.

 Makamah Syariah diberikan bidang kuasa ke atas orang yang menganut agama Islam sahaja.

 Fatwa yang telah dikeluarkan oleh Jawatankuasa Fatwa Negeri dan telah diterbitkan di dalam Warta adalah mengikat setiap orang Islam yang berada di dalam negeri berkenaan

Interaksi bidang kuasa

 Peruntukan dalam Senarai Negeri meletakkan bahawa Kerajaan Negeri mempunyai bidang kuasa dalam perkara-perkara berkaitan dengan undang-undang diri Islam. Selain daripada itu, bagi tujuan penentuan perkara mengenai hukum dan doktrin Syarak, perkara tersebut juga terletak di bawah bidang kuasa negeri dan sekiranya penentuan mengenai hukum-hukum tersebut masih belum terdapat dalam mana-mana Enakmen negeri, Majlis Fatwa Negeri akan dirujuk bagi penentuan sesuatu hukum tersebut.

 Senarai Persekutuan pada masa yang sama memperuntukkan bahawa Kerajaan Persekutuan juga mempunyai bidang kuasa dalam perkara kontrak; perkongsian dan agensi sama ada dari sudut undang-undang sivil mahupun undang-undang Islam. Selain daripada itu, perkara mengenai kewangan termasuk perundangan komersil Islam dan perbankan Islam dan sebagainya juga terletak di bawah bidang kuasa kerajaan Persekutuan. Badan yang dipertanggungjawabkan mengawal aktiviti perbankan Islam ialah Majlis Penasihat Syariah Bank Negara Malaysia yang ditubuhkan di bawah Akta Bank Negara Malaysia 1958 dan aktiviti pasaran modal dan kewangan Islam pula di bawah seliaan Majlis Penasihat Syariah Suruhanjaya Sekuriti.

 Setelah diteliti kedua-dua peruntukan di bawah Senarai Negeri dan Senarai Persekutuan, kemungkinan berlaku pertindihan bidang kuasa antara Kerajaan Negeri dan Kerajaan Persekutuan dalam penentuan Hukum Syarak khususnya mengenai perundangan komersil, kewangan dan perbankan Islam.

 Walaupun demikian, peruntukan mengenai perundangan komersil, kewangan dan perbankan termasuklah yang dilaksanakan secara Islam, adalah lebih jelas berada di bawah bidang kuasa Kerajaan Persekutuan atas pertimbangan berikut:-
i) Mahkamah Syariah hanya mempunyai bidang kuasa ke atas orang yang menganut agama Islam (Butiran 1 Senarai Negeri, Perlembagaan Persekutuan dan Seksyen 46(2) Akta Pentadbiran Undang-Undang Islam (Wilayah-Wilayah Persekutuan) 1993 [Akta 505] sedangkan undang-undang berkenaan perundangan komersil, kewangan dan perbankan secara Islam adalah meliputi semua pihak yang memilih menjalankan transaksi muamalat tersebut, sama ada Islam atau bukan Islam. Sekiranya salah satu daripada pihak dalam sesuatu pertikaian merupakan orang bukan Islam maka jelaslah Mahkamah Syariah tidak boleh mendengar kes tersebut.
ii) Dalam kes-kes yang melibatkan perundangan komersil dan perbankan Islam ini juga, pihak bank selalunya merupakan salah satu daripada pihak dalam pertikaian tersebut. Bank merupakan ‘orang buatan’ (artificial person). Dalam masa yang sama, bank, walaupun merupakan Bank Islam atau bank yang menawarkan produk-produk Islam, bank tersebut tidak dianggap sebagai orang yang menganut agama Islam kerana syarat asas seorang itu dianggap Muslim ialah aqidah atau pengakuan iman. Pengakuan iman ini hanya boleh dilakukan oleh individu.
iii) Senarai yang agak panjang yang terkandung dalam Butiran 1 Senarai Negeri hanya memperuntukkan perkara-perkara mengenai undang-undang diri Islam. Tambahan pula Butiran 4(e)(i) dan (ii) Senarai Persekutuan dengan jelas menyenaraikan perkara-perkara di bawah bidang kuasa Kerajaan Persekutuan dan mengecualikan perkara-perkara yang berkaitan dengan undang-undang diri Islam. Undang-undang kontrak, perkongsian dan agensi merupakan salah satu daripada cabang perundangan komersil dan perbankan. Oleh kerana perkara tersebut tidak dikecualikan di bawah sub-butiran (ii), maka dapat difahami bahawa undang-undang kontrak, perkongsian dan agensi yang melaksanakan prinsip muamalat secara Islam adalah di bawah bidang kuasa Kerajaan Persekutuan.
iv) Butiran 7(j-m) Senarai Persekutuan juga dengan jelas menyenaraikan aktiviti-aktiviti perundangan komersil dan perbankan. Perkara-perkara tersebut disenaraikan dalam bentuk umum tanpa mengecualikan perundangan komersil dan perbankan yang dilaksanakan menurut prinsip muamalat Islam. Maka, dapat difahami bahawa perundangan Islam dan perbankan Islam juga termasuk di bawah bidang kuasa Persekutuan.
v) Dalam keadaan sekarang, pertikaian yang berbangkit daripada transaksi muamalat berada di bawah bidang kuasa Mahkamah Sivil dan akan didengar oleh hakim-hakim Sivil yang dilatih menurut sistem Common Law Inggeris yang ternyata tidak mempunyai kepakaran dalam undang-undang Syariah. Oleh yang demikian, untuk mengatasi kekurangan ini diusulkan supaya mengadakan Syariah bench untuk mendengar kes-kes muamalat di mana hakim-hakim hendaklah daripada kalangan yang mempunyai pengetahuan dan kepakaran bukan sahaja dalam undang-undang komersil sivil malah juga prinsip-prinsip muamalat. Dengan itu, keputusan yang akan dibuat akan mempunyai kredibiliti di kalangan industri kewangan Islam di peringkat domestik dan antarabangsa.

Kemungkinan berlaku interaksi dan pertindihan bidang kuasa adalah sebagaimana hipotesis berikut:
Hipotesis:
 Bank C merupakan bank negara asing (foreign bank) yang dilesenkan oleh Bank Negara Malaysia (BNM) untuk beroperasi di Malaysia. Bank C menjalankan operasinya berlandaskan prinsip-prinsip syariah dan mempunyai badan penasihat Syariahnya sendiri.
 Bank C telah mendapat kelulusan Majlis Penasihat Syariah BNM bagi kelulusan produk Islam yang ingin ditawarkannya. Pelanggan berpotensi iaitu A membuat permohonan mendapatkan produk pembiayaan secara Islam yang ditawarkan oleh Bank C.
 Transaksi pembiayaan melibatkan hartanah yang dimiliki oleh bapa A iaitu B. Lokasi hartanah ialah di Shah Alam, Selangor. Bagi membolehkan A menyewakan hartanah kepada Bank C, B menghibahkan hartanah tersebut kepada A.
 Instrumen pelaburan dalam projek ialah berdasarkan prinsip sewa dan dengan janji untuk sewaan kembali (lease and lease back) hartanah tersebut. Pemakaian prinsip ‘lease and lease back’ menyerupai transaksi bai’ al-‘inah.
 Bagi instrumen sewaan kepada Bank C, pihak yang terlibat ialah A dan Bank C. Bank C sebagai ’pemegang sewa’ hartanah membuat bayaran sewaan secara tunai. Sejurus selepas menandatangani perjanjian sewa antara A dan Bank C, Bank C menyewakan kembali hartanah yang sama kepada A tetapi dengan syarat A membayar sejumlah sewa (pengiraan jumlah sewa dibayar oleh A adalah jumlah biaya + untung), secara beransur dan dalam tempoh tertentu.
 Dalam instrumen hibah, pelaksana ialah B dan penerima ialah A. Dalam perjanjian sewa, pihak Bank C ialah penerima sewa dengan notis bahawa A adalah penerima hibah umra’ dan dokumen hibah umra’ ini dikemukakan kepada Bank C sebelum perjanjian sewa dibuat.
 Kemudian berlaku kematian B yang menyebabkan waris-waris B (adik beradik A) mempertikaikan kesahihan dokumen hibah. Waris-waris B membawa pertikaian kepada Mahkamah Syariah. Permohonan di Mahkamah Syariah memerlukan pemutusan fakta dan undang-undang sama ada dokumen hibah adalah sah. Mahkamah Syariah dalam bidang kuasa malnya memutuskan dokumen hibah adalah batal dan tidak menepati syarak.
 Waris-waris B juga memfailkan kes di Mahkamah Tinggi Shah Alam untuk mencelah dalam tindakan sivil oleh Bank C terhadap A, mencabar kesahihan perjanjian sewaan balik oleh Bank C sebagai ’pemegang sewa’ atas hartanah tersebut.
 Mahkamah Tinggi boleh, menurut peruntukan Seksyen 53 Enakmen Pentadbiran Agama Islam (Negeri Selangor) 2003, merujukkan penentuan perkara mengenai hibah seorang Islam kepada Majlis Fatwa Negeri (kerana perkara di bawah bidang kuasa Kerajaan Negeri, Butiran II Senarai Negeri).
 Pihak waris-waris B, dalam hujahan membawa ke pengetahuan Mahkamah tentang keputusan fatwa mengenai dokumen hibah dan memohon Mahkamah merujuk kepada Majlis Fatwa Negeri bagi menentukan kesahihan transaksi perjanjian sewa serta perjanjian sewaan balik dalam kes ini. Berikutan pemutusan fatwa bahawa hibah dalam kes ini tidak menurut syarak, maka transaksi sewa dan sewaan kembali adalah batal.
 Pihak Bank C, berdasarkan kelulusan Majlis Penasihat Syariah BNM bagi pengeluaran produk Islam yang ingin ditawarkannya, menghujahkan bahawa transaksi adalah teratur dan Mahkamah wajar menerima dapatan oleh Majlis Penasihat Syariah BNM dalam kes ini.
 Kesan :
o sekiranya Majlis Fatwa Negeri memutuskan instrumen hibah Umra’ batal kerana tidak memenuhi hukum syarak, ini bermakna A tidak cukup syarat mengikut syarak untuk menyewakan hartanah kepada Bank C. Maka perjanjian sewa antara Bank C dan A batal sejak mula dan tidak boleh dikuat kuasa. Seterusnya Bank C tidak boleh menyewakan kembali hartanah kepada A untuk mendapatkan hasil sewaan.
o Bank C mengalami kerugian walaupun pada awalnya telah mendapat kelulusan Majlis Penasihat Syariah BNM bagi pengeluaran produk Islam yang ingin ditawarkannya

Isu:-
Dalam keadaan tersebut, kelulusan yang dikeluarkan oleh Majlis Penasihat Syariah adalah berkaitan produk pembiayaan secara Islam tetapi melibatkan pelaksanaan hibah.
1. Adakah instrumen hibah dalam pelaksanaan produk perbankan adalah di luar lingkungan bidang kuasa penentuan hukum syarak/ fatwa oleh Majlis Fatwa Negeri ?
2. Sama ada Majlis Fatwa Negeri mempunyai bidang kuasa mengeluarkan fatwa berkaitan dengan pemakaian prinsip hibah sebagaimana yang digunakan dalam transaksi perbankan Islam?
3. Bagaimanakah cara untuk mempastikan bahawa tidak berlaku kecelaruan dalam pelaksanaan produk perbankan Islam dan terdapat keseragaman kaedah-kaedah yang digunapakai dalam mencapai sesuatu ijtihad. dalam penentuan Hukum Syarak berkaitan dengan perundangan komersil dan perbankan Islam?

Usul :
 Bagi mengatasi isu-isu dan permasalahan yang bakal timbul berdasarkan hipotesi kes di atas, perlu ditentukan satu badan tunggal dalam penentuan Hukum Syarak berkaitan dengan perundangan komersil dan perbankan Islam.
 Tujuan lain penetapan satu Majlis tunggal ialah keseragaman dalam penentuan hukum-hukum Syarak dan pengawal seliaan segala aktiviti komersial dan perbankan berkonsepkan Islam bagi seluruh Malaysia agar tidak berlaku pertindihan pendapat dan percanggahan kaedah-kaedah yang digunapakai dalam mencapai sesuatu ijtihad.
 Mekanisma penetapan satu Majlis tunggal inilah yang perlu dibincangkan bersama-sama oleh Majlis Penasihat Syariah Suruhanjaya Sekuriti, Majlis Penasihat Syariah Bank Negara Malaysia dan Majlis Fatwa Kebangsaan supaya terdapat keseragaman penentuan hokum Syarak dalam mempergiatkan perkhidmatan kewangan Islam.
 Halatuju : Selaras dengan matlamat Kerajaan menjadikan Malaysia sebagai pusat kewangan Islam Antarabangsa, Majlis penasihat kewangan ini nanti adalah Majlis yang merupakan penyatuan kesemua kepakaran penasihat-penasihat perkhidmatan kewangan yang pakar dalam fiqh-muamalat Islam dan perjalanan serta keperluan perkhidmatan kewangan dan perbankan Islam. Majlis ini juga diharapkan dapat menangani setiap isu yang dirujuk dan sekaligus setiap keputusan yang dibuat adalah seragam dan akan diterima pakai oleh semua institusi-institusi yang terlibat.
31 Disember 2004 (tarikh diberi)

SPEECH AT IIUM LAWGRADS DINNER 2004 (N0.2)

SPEECH AT IIUM LAWGRADS DINNER 2004 (N0.2)
Dewan Tun Hussain Onn, PWTC, Kuala Lumpur
25.10.2004
By
Dato’ Abdul Hamid Bin Haji Mohamad
Judge, Federal Court Malaysia

 

When I received the invitation to speak at a similar dinner for the second consecutive year early this year, I was wondering what to say, to avoid repetition. When I received this third consecutive invitation, I began to wonder whether it was becoming a tradition that after you have heard all the lectures by your professors and lecturers, you have your “last supper” with me (of course, you pay for it!) and listen to my speech before going out into the world.

Perhaps it is not too early for me to congratulate you all for having completed your course. I believe that the presumption that all of you will graduate is not rebuttable, otherwise you wouldn’t dare to hold this dinner. So, congratulation, but it is “without prejudice”.

Let me begin with a reminder. Just because it takes four years to complete the law course at the university, please do not think that when you pass the first year examination you already know one quarter of the law, when you pass the second year examination you know half the law and when you pass the final examination you know all the law. Wait till the first client walks into your office to consult you. Then you will know how much you don’t know. Indeed, in this life, the more you know about a thing, the more you realize that there are more that you don’t know about it. If you don’t know anything about a thing, you don’t even know that there is something that you don’t know about. You may be walking around ignorantly confident that you know everything. Actually, the learning process never ends until you choose not to learn anymore.

Very soon, you will be stepping into the reality of legal practice, or even if you decide not to practise law, into the reality of working life. You have to be prepared to see and experience something very different from what you have seen and experienced in your student life. You cannot change the world, no matter how idealistic you are. So, you will have to adjust yourselves and fit yourselves into it. If you can do it without sacrificing your principles, the Islamic principles that you have been taught, (I am referring to such principles as honesty, discipline and dedication) I have no doubt that you will pass the first test.

When I was a High Court Judge in Penang, one day, on a chamber day, a figure in black, from head to toe, walked in carrying a file. It sat down. Then I heard a woman’s voice introducing herself as counsel appearing for the matter. I told her to remove the veil covering her face because I wanted to know who was appearing before me. She just flipped open the veil and quite sarcastically said, “O.K?” and covered her face again. I said, “If you want to practise in this court, you will have to follow our dress code. If you think uncovering your face is so un-Islamic, you better stay at home.” She complied. I did not see her again after that. May be she took my advice to stay at home. What about her performance as a lawyer? Most disappointing. She certainly had her priorities wrong. In all fairness, I did not ask her which university she came from.

Let me say so very frankly. I do not think that you will make it in law practice if you were to sit in your office covered in black from head to toe waiting for clients to come. Clients do not go and see a lawyer the way people go and see a medium to ask for 4-digit lottery numbers. They want to discuss their problems with him or her, go through the documents with him or her and decide what steps to be taken by him or her. Multi-national companies are not going to have such a figure sitting in their board meetings or at a negotiation table. Similarly, the court is not going to sit and listen to a figure they don’t even know who. In short, if you want to go far in legal practice, you will have to be in the main stream, sitting in the board of multinational companies, having big corporations as your clients and appearing in major cases. You cannot get into the main stream if you sit in your cocoon watching the world passing by.

You have an advantage because your course is conducted in English. You should be proficient in English. Whether you like it or not, the language of legal practice, more so in the private sector, is English. You have to compete with those lawyers who are trained abroad and who come from business background and have the business connections. They start off more favourably than most of you. So, you will have to work harder to be recognized.

When Malay was made the language of the court, I thought that that would give the Malay lawyers an advantage. It did not happen that way. In fact, it is the non-Malay lawyers who excel. They speak Malay when they speak Malay and they speak English when they speak English. The Malays tend to speak both languages at the same time or to turn Malay into English and English into Malay.

I must tell you this incident. When I was Chairman of the Advocates and Solicitors Disciplinary Board, we issued a notice to show cause to a lawyer to explain why he was practising without a practising certificate. He came, wearing a wind-cheater and carrying a crash helmet. I asked him whether he was practising law that year. He said, “No”. I asked him, “What are you doing for a living?” He replied, “I am soliciting for my wife”. The members of the Board broke in unison: “What?” “My wife is a lawyer and I am soliciting for her,” he explained. We gave up and let him go with a warning not to practise without a practising certificate. We could understand why he ended up “soliciting for his wife.” One consolation is that he was not a graduate of I.I.U.M. If I come across one such lawyer from I.I.U.M., I will not attend your dinner again.

Law practice is very varied. Not everybody is suited for everything. If you are too timid and you cannot stand the pressure of litigation work, stay in office and do solicitor’s work. If you like the limelight, you enjoy arguing on your feet and you think you are good at it, try litigation. Even in litigation, you will find that you may be better in one thing, and not so good in another. I notice that quarrelsome people and those who do not blush easily, make good criminal lawyers, especially in cross examination of witnesses. Usually such people are not that good in civil litigation or in arguing points of law. You will find out quite soon what you are more suited for and you should make full use of it. Even now you may already have some rough idea what kind of job suits you best.

The fact that you are a graduate in law does not necessarily mean that you will have to practise law for a living. After all, graduates in philosophy do not earn a living as philosophers. There is no limit to things that you can do. But, whatever you do, you will find that the discipline, especially the ability to analyse, to think, to apply and to make decisions, which is part and parcel of working life, is useful.

You must have been told that a law school is not a Ma’had Tahfiz. We do not want to produce sacred cows like the ones in the streets of India that gobble all printed papers found in the streets but do not digest them, to paraphrase the words of Sheikh Mustafa Al-Muraghi as told to Muhammad Asad and recorded in the book “The Road To Mecca”. In legal practice, the ability to digest and to absorb the facts and the principles of law, to analyse, to apply or to distinguish an authority in more important.

I observe that three main causes of downfall of lawyers are dishonesty, greed and living beyond their means. I have told this story a few times, but I think it is worth repeating. A lawyer, on being called to the bar was heard boasting: “I’ll be a millionaire in two years”. Well, I do not know whether he did become a millionaire in two years. But I know that he was suspended within about that period. On the other hand, I remember reading Lord Denning saying that, in his days, if in the first two years as a barrister you earn enough to buy two hot meals a day, that is good enough. That, I believe, is partly because of the split profession in England. You are better off here because you can do both the work of a solicitor as well as that of a barrister.

My last advice is, do not go on your own the moment you are called to the bar. Try to work as an assistant in an established firm first. Even if you do not learn the right things that you should do, at least you will learn the wrong things that you should not do. And, do not be tempted with offers of partnership by one-man firms unless you know that the firm’s accounts are in order. When I was Chairman of the Advocates and Solicitors Disciplinary Board, I saw a number of cases in which naïve young lawyers, on admission to the bar, happily became partners in such firms. The “senior partner” controls the firm’s accounts. As the accounts are not in order, at the end of the first year, they, including the “new partner” were unable to get their practicing certificates for the following year and years. The “senior partner” has absconded with the firm’s money and the “junior partner”, being a partner, is saddled with the liabilities.

This evening is not the time to worry about all those things yet. Enjoy yourselves and take things as they come but be on guard. I wish you all success in whatever you choose to do.

Selamat berpuasa dan selamat berhari raya. Ma’af zahir batin.

Thank you.

GAN JOON ZIN v. FONG KUI LUN & ORS

FEDERAL COURT, PUTRAJAYA
SITI NORMA YAAKOB FCJ; ABDUL HAMID MOHAMAD FCJ; ALAUDDIN MOHD SHERIFF FCJ
[CIVIL APPEAL NO: 01-18-2004 (W)]

ELECTION: Petition – Presentation of petition – Whether petitioner should state either one of alternatives provided under s. 34 of Election Offences Act 1954 to qualify – Election Petition Rules 1954, r. 4

ELECTION: Petition – Dismissal of petition on preliminary objection – Whether appealable – Election Offences Act 1954, ss. 34, 36, 36A – Election Offences (Amendment) Act 2002 (Act A1177)

ELECTION: Petition – Insufficient particulars – Whether warrants dismissal of petition

ELECTION: Petition – Dismissal of petition on preliminary objection – Whether Election judge right in dismissing petition for want of mandatory requirements upon preliminary objection – Election Offences Act 1954, ss. 24B(1), (4), (6), (7) and 32(b) – Election Petition Rules 1954, r. 4(1)(b)

This was the petitioner’s appeal against the decision of the election judge striking out the election petition filed by him on a preliminary objection raised by the respondents for not complying with the mandatory requirements of the Election Offences Act 1954 (‘the Act’). Before the Federal Court, the respondents raised another preliminary objection, namely, that the petitioner had no "locus standi " to maintain the appeal on two grounds. Firstly, that the petitioner did not state either one of the alternatives provided under s. 34 of the Act, namely, whether he was a " person who voted " or a person who " had a right to vote " at the relevant election but had instead stated both. Secondly, that the judgment of the election judge was not appealable under s. 36A of the Act.
Held (dismissing the appeal)
Per Abdul Hamid Mohamad FCJ delivering the judgment of the court:
[1] If a person falls under one or some or all of the descriptions relating to his qualification to present a petition, he has the locus standi to do so and he may state any or some or all of such qualifications that apply to him. It followed that in the present case there was nothing wrong in what the petitioner did in the petition. In fact, he strictly followed the wordings in the Act. (Section 34 of the Act and r. 4 of the Election Petition Rules 1954).
[2]Before the amendment to the Act, there was no right of appeal against any order arising from an election petition, whether the order is in respect of an interlocutory matter or whether it is a final determination of the election petition at the conclusion of trial. Following the case of [ong Teck Lee v. Harris Mohd Salleh, Parliament decided to provide an appeal against the determination of an election judge. It did so by amending s. 36 of the Act and introducing s. 36A to the Act via amending act, Act A1177. The amending act provided for appeals against the final determination of an election judge. However, it made no mention regarding appeals in respect of interlocutory orders or even orders striking out the petition which in fact finally disposes of the petition without going through the process of trial. Therefore, it was not the intention of Parliament to provide an appeal other than against the final determination by the election judge at the conclusion of the trial.
[3]The words of s. 36A of the Act together with s. 36 of the same clearly show that an appeal is only available against the determination of the issues provided in para. (a) of s. 36 of the Act at the conclusion of the trial of the petition. The word " trial " can only be interpreted to mean a full trial and the determination of the issues to mean a judgment or decision given after having considered the evidence adduced and the relevant law. The provision cannot and should not be stretched to mean an order made purely on procedural grounds on a preliminary objection before the trial begins even though it disposes off the petition.
[4]Whether or not insufficient particulars may warrant the striking out of an election petition depends on the seriousness of the omission and the consequential effects on the petition. It is to be decided according to the peculiar circumstances of each case. Nonetheless the learned judge was right in striking out the petition for want of the mandatory requirements. (Sections 24B(1), (4), (6), (7) and 32(b) of the Act; Rule 4(1)(b) of Election Petition Rules 1954).
[Bahasa Malaysia ]Translation Of Headnotes
Ini adalah rayuan pempetisyen terhadap keputusan Hakim Pilihan Raya menolak petisyen pilihan raya atas bantahan permulaan responden-responden kerana tidak mematuhi kehendak-kehendak mandatori Akta Kesalahan Pilihan Raya 1954 (‘Akta tersebut’). Di hadapan Mahkamah Persekutuan responden-responden membangkitkan bantahan permulaan lagi, iaitu, bahawa pempetisyen tidak ada locus standi untuk mengekalkan rayuan ini atas dua alasan. Pertamanya, bahawa pempetisyen tidak memberikan mana satu alternatif yang ternyata di bawah s. 34 Akta tersebut, iaitu, sama ada beliau adalah " seseorang yang telah mengundi’ atau seseorang " yang telah ada hak mengundi " dalam pilihan raya berkenaan tetapi telah memberikan kedua-duanya. Keduanya, penghakiman Hakim Pilihan Raya tidak boleh dirayui di bawah s. 36A Akta tersebut.
Diputuskan (menolak rayuan)
Oleh Abdul Hamid Mohamad HMP menyampaikan penghakiman mahkamah:
[1]Jika seseorang itu jatuh di bawah satu atau beberapa atau semua perihal berkenaan kelayakan membawa sesuatu petisyen, beliau ada Focus standi untuk berbuat demikian dan beliau boleh menyatakan mana-mana satu atau beberapa atau semua perihal kelayakan yang terpakai kepadanya. Berikutannya, dalam kes semasa pempetisyen tidak bersalah dalam apa yang diberikannya di dalam petisyen tersebut. Sebaliknya, beliau telah mengikuti dengan tepatnya kata-kata dalam Akta tersebut (Seksyen 34 Akta tersebut dan k. 4 Kaedah-Kaedah Petisyen Pilihan Raya).
[2]Sebelum pindaan kepada Akta tersebut, tiada rayuan yang boleh dibuat terhadap mana-mana perintah yang berbangkit dari sesuatu petisyen pilihan raya, sama ada perintah tersebut berhubung dengan perkara interlokutori atau sama ada ianya merupakan penentuan akhir petisyen pilihan raya berkenaan pada pelupusan perbicaraan. Berdasarkan kes Yong Teck Lee v. Harris Mohd Salleh, Parlimen telah memberikan rayuan terhadap keputusan Hakim Pilihan Raya dengan meminda s. 36 Akta tersebut dan memperkenalkan s. 36A kepada Akta tersebut melalui akta pindaan Akta A1177. Dengan pindaan tersebut, terdapat rayuan terhadap penentuan akhir Hakim Pilihan Raya atas petisyen yang dikemukakan. Tetapi, tidak ada apa-apa yang dinyatakan mengenai rayuan terhadap mana-mana perintah interlokutori atau pun mana-mana perintah menolak petisyen yang secara kebetulannya melupuskan petisyen dengan tiada perbicaraan. Maka, bukanlah niat Parlimen untuk memberikan rayuan selain daripada penentuan akhir Hakim Pilihan Raya pada pelupusan perbicaraan.
[3]Kata-kata s. 36A Akta tersebut bersama s. 36 Akta yang sama jelasnya menunjukkan bahawa sesuatu rayuan hanya akan diberikan terhadap penentuan isu-isu yang dinyatakan di perenggan (a) s. 36 Akta tersebut pada akhir perbicaraan petisyen. Perkataan " perbicaraan " hanya akan ditafsirkan untuk bermakna satu perbicaraan yang penuh dan penentuan isu-isu untuk bermakna penghakiman dan keputusan yang diberikan selepas menimbangkan keterangan yang dikemukakan dan undang-undang berkenaan. Peruntukkan tersebut tidak boleh ditafsirkan untuk bermakna sesuatu perintah yang dibuat atas alasan prosedur atas bantahan permulaan sebelum perbicaraan bermula walaupun ianya melupuskan petisyen.
[4] Sama ada atau tidak butir-butir tidak mencukupi menyebabkan pembatalan petisyen bergantung kepada betapa seriusnya peninggalan tersebut dan kesan-kesan yang mengikut ke atas petisyen tersebut. Ianya mesti diputuskan mengikut keadaan khusus kes tersebut. Namun demikian, hakim yang arif betul dalam pembatalan petisyen tersebut kerana tidak mematuhi kehendak-kehendak mandatori. (Seksyen-seksyen 24B(1), (4), (6), (7) dan 32(b) Akta tersebut; k. 4(1)(b) Kaedah-Kaedah Petisyen Pilihan Raya 1954).]
Reported by Usha Thiagarajah

Case(s) referred to:
Assam Railways & Trading Co Ltd v. Inland Revenue Commissioners [1935] AC 455 (refd)
Chong Thian Vun v. Watson & Anor [1968] 1 MLJ 65 (foll)
Dason Gaban v. Zulkifli Majun & Ors [1982] 1 LNS 41; [1982] 1 MLJ 315 (refd)
Devan Nair v. Yong Kuan Teik[1967] 1 LNS 37; [1967] 1 MLJ 261 (refd)
Harris Mohd Salleh v. Ismail Majin, Returning Officer & Ors and Another Application; [2000] 4 CLJ 104; [2000] 3 MLJ 434 HC (refd)
Hugh Siak Meng & Anor v. Daing Ibrahim Othman (Ipoh-Election Petition No 1 of 1975) (refd)
Kua Kia Soong v. Mohd Nor Bador & Anor[1996] 1 CLJ 429; [1996] 1 CLJ 429 HC (refd)
Muip Tabib v. Dato’ James Wong[1970] 1 LNS 83; [1971] 1 MLJ 246 (refd)
Patau Rubis v. Patrick Anek Uren & Ors [1984] 1 CLJ 51; [1984] 2 CLJ (Rep) 348 HC (refd)
Raja Ahmad Raja Sulaiman v. Hj Mohd Daud Jaafar (Petisyen Pilihanraya No: 33-5-1995) (Unreported) (refd)
Re Perting Timor Election (No 2)[1962] 1 LNS 162; [1962] 28 MLJ 333 (refd)
Wan Daud Wan Jusoh v. Mohamed Hj Ali & Anor [1987] 1 LNS 68; [1988] 2 MLJ 384 (refd)
Yong Teck Lee v. Harris Mohd Salleh [2002] 3 CLJ 422 CA (refd)

Legislation referred to:
Elections (Conduct of Elections) Regulations 1981, regs. 24(1)(c), 25(12)(b)(ii), 25A(1), (2), 25D(5B)
Election Offences Act 1954, ss. 24B(1), (4), (6), (7), (10), 32(b), (c), 33(4), 34, 35(a), (b), 36, 36A
Election Offences (Amendment) Act 2002 (Act A 1177), ss. 27, 28
Election Petition Rules 1954, r. 4(1)(b)
Rules of the High Court 1980, O. 18 r. 19
Counsel:
For the appellant – Azahar Azizan Harun (Jeffrey John, KT Leow & Kaushalya Rajathurai); M/s Shafee & Co
For the 1st respondent – Karpal Singh; M/s Karpal Singh & Co
For the 2nd & 3rd respondents – Umi Kalthum Abdul Majid (Mary YS Lim, Amarjeet Singh, Junaidah Abdul Rahman & S Narkunawathi); Ag’s Chambers
JUDGMENT
Abdul Hamid Mohamad FCJ:
In the general election for the Parliamentary constituency of Bukit Bintang held on 21 March 2004, the first respondent was returned with a majority of 304 votes. On 29 April 2004 the appellant (petitioner in the High Court) filed an election petition, praying primarily for the following declarations that:
1. the election was void; and
2. the first respondent was not duly elected or ought not to have been returned.
Both the prayers are based on s. 35(a) and (b) of the Election Offences Act 1954 ( “the Act “).
According to the notes of evidence, counsel for the respective parties appeared before the learned Election Judge on 28 May 2004 for what appears to be for case management. The respective counsel informed the learned judge of the number of witnesses they intended to call at the trial. Encik Amarjeet Singh, the senior federal counsel appearing for the second and third respondents also informed the court that there would be ” some preliminary objections “. The learned judge fixed the dates for the trial of the petition. The learned judge also directed learned counsel for the parties to file written submissions on the preliminary objections by certain dates and recorded that the decision on the preliminary objections would be given on 21 July 2004, the first day fixed for the trial. The learned judge also directed the parties to exchange witnesses’ statements by certain dates about three weeks before the date fixed for the decision on the preliminary objections and the commencement of the trial.
On 21 July 2004, the learned judge gave his decision on the preliminary objections. The learned judge, in a written judgment, ruled that the petition was defective and ordered that it be struck out and awarded costs of RM1,000 to the first respondent and costs to be taxed for the second and third respondents. The appellant appealed to this court pursuant to s. 36A, that had been inserted recently by Act A1177 of 2002.
Before us the respondents raised yet another preliminary objection that the petitioner had ” no locus standi ” to maintain the appeal. Two grounds were forwarded. First, the petition did not state that the petitioner was either a ” person who voted ” or a person who ” had a right to vote ” at the said election. In other words, it was submitted that the petitioner should state either one of the two alternatives, not both. It is to be noted that in the petition, the petitioner stated:
1. Pempetisyen kamu adalah seorang yang telah mengundi atau yang ada hak untuk mengundi (emphasis added).
The second ground forwarded in the preliminary objection was that the judgment of the learned judge striking out the petition was not appealable under s. 36A of the Act.
The First Ground
The crux of the argument is that the petitioner should have said in the petition that either he had voted OR that he had a right to vote, not both.
Section 34 of the Act provides:
34. An election petition may be presented to the High Court by any one or more of the following persons:
(a) some person who voted or had a right to vote at the election to which the petition relates;
(b) some person claiming to have had a right to be returned or elected at such election; or
(c) some person alleging himself to have been a candidate at such election.
Rule 4 of the Election Petition Rules 1954 ( “the Rules “) provides:
4. (1) An election petition shall contain the following statements:
(a) it shall state the right of the petitioner to petition within section 34 of the Act; and
(4) The following form, or one to the like effect, shall be sufficient:
IN THE HIGH COURT OF
The Election Offences Act 1954
Election for (state the constituency or electoral ward) holden on the day of 19
The petition of A of (or of A of and B of as the case may be) whose names are subscribed.
(1) Your petitioner A, is a person who voted (or had a right to vote, as the case may be) at the above election (or claims to have had a right to be returned at the above election or was a candidate at the above election), and your petitioner B. (here state in like manner the right of each petitioner);
What s. 34 means is that any person falling under one of the descriptions has the locus standi to present an election petition. But, a person may also fall under more than one of the descriptions. He may have a right to vote, he may have voted and he may also be a candidate and claims to have a right to be returned or elected at the election. He is equally qualified, if not more, to file a petition. He may choose to state only one of the qualifications or some of them or all of them if they suit him. In either case he has the locus standi to present a petition.
The form provided in r. 4 contains the words ” as the case may be ” between the words ” voted or had a right to vote “, thus leading to the argument that a petitioner has to choose either one and not both.
We think there is no merit in this argument. First, there is no reason why, if a person falls under more than one description relating to his qualification to present a petition, he may not rely on all of them and state all of them, if he so wishes. Secondly, the words ” as the case may be ” in r. 4 certainly cannot limit the provisions of s. 34 of the Act.
The point is, if a person falls under one or some or all of the descriptions relating to his qualification to present a petition, he has the locus standi to do so and he may state any or some or all of such qualifications that apply to him. In either case, he has the locus standi to present the petition. So, there is nothing wrong in what the petitioner did in this petition. In fact, he strictly followed the wording in the Act.
We have read the authorities referred to us which consists mainly of Indian cases. We do not think they offer any assistance in the determination of this issue. The law is clear and we should focus our minds on it. We do not think we need to discuss them.
The Second Ground
It was argued that since, in this case, the learned judge merely made an order striking out the petition before the trial commenced, the order was not a ” determination ” as stated in s. 36 made at the conclusion of the trial of the election petition. Since s. 36A(1) only provides for an appeal ” against the determination of an Election Judge “, the order made in this case is not appealable since it does not fall within the provisions of s. 36A(1).
To appreciate the position, I think it is worthwhile to go back into the history of the relevant provisions of the law. Prior to 2 May 1986, s. 33(4) of the Act provided.
33. (1)…
(2)
(3)
(4) Unless otherwise ordered by the Chief Judge, all interlocutory matters in connection with an election petition may be dealt with and decided by any Judge of the High Court.
That had given rise to some uncertainties whether there was a right of appeal in regard to interlocutory orders. See, for example, Re Perting Timor Election (No. 2) [1962] 1 LNS 162; [1962] 28 MLJ 333 (former CA),Devan Nair v. Yong Kuan Teik[1967] 1 LNS 37; [1967] 1 MLJ 261 (PC) and Dason Gaban v. Zulkifli bin Majun & Ors.[1982] 1 LNS 41; [1982] 1 MLJ 315 (FC). In Dason Gaban, Suffian LP, invited Parliament to consider the ambiguity in the law and to decide as a matter of policy whether or not interlocutory orders made in an election petition should be appealable and to legislate accordingly.
Subsequent to that Parliament by Act A 640 that came into force on 2 May 1986 amended s. 33(4) by inserting the words ” whose decision shall be final. ” That settled the issue: that there was no appeal against interlocutory orders made in election petitions.
Since the Act was enacted, s. 36 contained the words ” such determination shall be final. ” This provision had consistently been interpreted to mean that there was no right of appeal against the determination of the election petition by the election judge – for discussion of the cases, seeYong Teck Lee v. Harris Mohd. Salleh[2002] 3 CLJ 422; [2002] 3 AMR 2752(CA).
So, from 2 May 1986, the position of the law was that there was no right of appeal at all against any order arising from an election petition, whether the order is in respect of an interlocutory matter or whether it is a final determination of the election petition at the conclusion of its trial.
Following Yong Teck Lee ‘s case (supra), Parliament decided to provide an appeal against the determination of an election judge. It did so by amending s. 36 and introducing s. 36A. This was done by Act A 1177/2002 which came into force on 16 January 2003.
The two sections now read:
36. (1) At the conclusion of the trial of an election petition, the Election Judge shall:
(a) determine whether the candidate whose return or election is complained of was duly returned or elected or whether the election is void: and
(b) pronounce such determination in open court.
(2) The Election Judge shall within fourteen days of making his determination under subsection (1) certify his determination:
(a) to the Election Commission in the case of an election of a person to be a member of the Dewan Rakyat, a Legislative Assembly, a local authority under the jurisdiction of the Federal Government or of any other election that the Election Commission may be authorized to conduct; or
(b) in the case of any other election, to the State Authority.
36A. (1) The petitioner or a candidate whose return or election is complained of may appeal against the determination of an Election Judge to the Federal Court.
(2) Every appeal under this section shall be presented within fourteen days from the date of the determination of the Election Judge under section 36 and such appeal shall be presented in accordance with the rules of court applicable to appeals to the Federal Court.
It is to be noted that with the substitution of s. 36, the words ” such determination shall be final ” had been removed. On the other hand, s. 33(4) was not amended. The words ” whose decision shall be final ” are still there. This can only mean that whereas Parliament intended to provide the right of appeal against the determination of the Election Judge as mentioned in s. 36, it did not intend to provide the right of appeal against a decision made in an interlocutory matter mentioned in s. 33.
Another point to note is this. Even prior to the amendment of s. 42 of the Act by the same amendment Act (Act A 1177 of 2002), courts had been entertaining preliminary objections and applications, usually by notices of motion, to strike out election petitions. Election petitions had been struck out on such applications. In other words, not all petitions proceeded to trial and final determination at the conclusion of the trial. Examples of such applications are to be found in Patau Rubis @ Dr. Patau Rubis v. Patrick Anek Uren & Anor [1984] 1 CLJ 51; [1984] 2 CLJ (Rep) 348; Devan Nair v. Yong Kuan Teik[1967] 1 LNS 37; [1967] 1 MLJ 261; Kua Kia Soong v. Mohd. Nor Bador & Anor [1996] 1 CLJ 429; Wan Daud bin Wan Jusoh v. Mohamed bin Haji Ali & Anor [1987] 1 LNS 68; [1988] 2 MLJ 384; Muip bin Tabib v. Dato’ James Wong[1970] 1 LNS 83; [1971] 1 MLJ 246; Raja Ahmad bin Raja Sulaiman v. Haji Mohd. Daud bin Jaafar (Mahkamah Tinggi Malaya di Kota Bharu, Petisyen Pilihanraya No. 33-5-1995 unreported); Hugh Siak Meng & Anor v. Daing Ibrahim bin Othman (Ipoh-Election Petition No. 1 of 1975, reported in Tunku Sofiah’s Malaysia Election Laws p. 503) and Harris Mohd. Salleh v. Ismail bin Majin, Returning Officer & Ors. and Another Application [2000] 4 CLJ 104. In Devan Nair v. Yong Kuan Teik (supra) Lord Upjohn said:
The Election Judge must, however, have an inherent power to cleanse his list by striking out or better by dismissing those petitions which have become nullities by failure to serve the petition within the time prescribed by the Rules.
Learned counsel for the appellant made a point that that passage only refers to petitions that had become nullities, not petitions in respect of which applications are made to strike out on other grounds. In our view, even if that is so, the fact remains that petitions may be struck out or dismissed without the Election Judge having to go through the whole process of trial. And there was no right of appeal against such orders just as there was none against a final determination by an Election Judge.
That was the state of the law at the time the amendment (Act A 1177/2002) was enacted. The amendment Act clearly provided for appeals against the final determination of an Election Judge but made no mention regarding appeals in respect of interlocutory orders or, even orders striking out the petition which in fact finally disposes of the petition without going through the process of trial and making a determination at the conclusion of it. Certainly it cannot be said that the drafters of the amendment Act did not know the state of the law and practice when they drafted the amendment Act. Parliament is always presumed to know the law. Parliament had enacted the amendment Act in the way that it did. Its intention must be gathered from the words used by it. The only conclusion that we can arrive at is that it was not the intention of Parliament to provide for an appeal other than against the final determination by the Election Judge at the conclusion of the trial.
Since the order made by the learned judge, even on a preliminary objection, disposes of the petition, can it be said to be a determination at the conclusion of the trial? In our view it is not. This is because the ” trial ” (meaning the hearing of witnesses and so on) had not even commenced, what more concluded and the Election Judge did not ” determine ” on evidence whether the candidate whose return or election was complained of was duly returned or elected or whether the election was void.
Reading the words of s. 36A together with s. 36, it is clear that an appeal is only available against the determination of the issues provided in para. (a) of s. 36(1) at the conclusion of the trial of the petition. In the context of s. 36, we do not think that the word ” trial ” can be interpreted to mean anything other than a full trial and that the determination of the issues to mean other than a judgment or decision given after having considered the evidence adduced and the relevant law. The provision cannot and should not be stretched to mean an order made purely on procedural grounds on a preliminary objection before the trial even begins, even though it disposes off the petition.
We are aware that this conclusion leads to an anomalous result in that, where a judge strikes out a petition without a trial, without hearing the evidence but purely on procedural defect, the order is not appealable. On the other hand, where the Election Judge makes his ” determination ” after a full trial, and having heard and considered the evidence, it is appealable. But, to hold otherwise, would in effect be to read words into or to rewrite the section, which is not the function of the court.
In this respect, we find support in the judgment of Lee Hun Hoe J (as he then was) in Chong Thian Vun v. Watson & Anor [1968] 1 MLJ 65. That was a case where the notice of presentation of the election petition could not be published in the gazette within the time specified in r. 15 because the printing machine at the Government Printer broke down. The Election Judge was urged to give a ” beneficial interpretation ” of r. 15 ” in the sense that the mischief shall be suppressed and the remedy advanced ” because the petitioners had done all that was possible in the circumstances. The Election Judge rejected the submission and, inter alia, said:
However, it is equally important to see that the construction must not be strained to such an extent as to include cases plainly omitted from the natural meaning of the words in the statute
As to the question of time the Ordinance and Rules are clear and unambiguous. There is therefore no question of casus omissus in the rules. The court should approach the matter with caution where it has been urged to construe any enactment in a manner which may result in the extension of any provision of any enactment. The court should decline to interfere where a person is seeking its aid in order to relieve him against express statutory provisions which it considers to be mandatory. Craies on Statute Law, 6th edn, p. 71 has this to say:
In other words, the language of Acts of Parliament, and more especially of modern Acts must neither be extended beyond its natural and proper limit, in order to supply omissions or defects nor strained to meet the justice of an individual case.
The House of Lords has laid down in Magor & St Mellons Rural District Council v. Newport Corporation [1952] AC 189 at p. 190 that in construing a statute the duty of the court is limited to interpreting the words used by the legislature and it has no power to fill in any gaps disclosed. To do so would be to usurp the function of the legislature.
The learned judge in that case then quoted Lord Simons who strongly criticised Denning LJ on his approach to the question of construction which we do not think it is necessary to reproduce. He also quoted Lord Wright’s observation in Assam Railways & Trading Co. Ltd. v. Inland Revenue Commissioners [1935] AC 455 & 458 and also referred to other cases and went on to say:
The facts that the notices had been sent to the Government Printer on 3rd June and that the machines broke down cannot be construed to mean that rule 15 has been literally complied with. Such a construction would mean reading words into the rule where there is no reason to do so as the rule clearly specifies the time of service. It would be wrong to strain words to meet the justice of the present case, because it might make a precedent, and lead to dangerous consequences in other cases. If there is any defect in the rule and amendment is necessary the remedy lies with the legislature. The court should not assume the function of the legislature by filling in omission which may be deliberate.
In this case, it is not just a matter of one of the requirements regarding the service of the petition which is strictly procedural. It is a matter of jurisdiction of this court, whether it has the jurisdiction to entertain the appeal or not. It is certainly more serious than a procedural requirement. Considering that jurisdiction is a matter conferred by law which is within the province of the legislature, it is certainly a usurpation of the legislative power for the court to fill the lacuna in the law whether or not it was intentional and even with the view to do justice in this case. In any event, it will set a very dangerous precedent, especially coming from this court.
All that this court can do, as was done by the court in Dason Gaban v. Zulkifle bin Majun and 21 Other Cases (1982) (supra) is to invite Parliament to consider as a matter of policy whether or not an order made by an Election Judge, not being a ” determination ” at the conclusion of the trial of the election petition that disposes the petition, should be made appealable.
In the circumstances, we would allow the preliminary objection on the second ground and dismiss the appeal.
The Appeal
Since we have also heard arguments on the appeal and this is the first case that has come to this court by way of an appeal since the amendment, we think we should also deal with the appeal.
The appeal is against the decision of the Election Judge striking out the election petition on a preliminary objection. In the Election Petition, the appellant was seeking for a declaration that the election was void or that the first respondent was not duly elected or ought not to have been returned based on five grounds:
(A) The first respondent carried out election campaign in contravention of ss. 24B(1), (4), (6), (7) and (10) and s. 32(b) and (c) of the Act.
(B) The second respondent failed to comply with the procedure at the completion of poll in contravention of reg. 24(1)(c) of the Elections (Conduct of Elections) Regulations 1981 ( “the regulations “).
(C) The second respondent failed to comply with the procedure after the counting of votes in contravention of reg. 25(12)(b)(ii) of the regulations.
(D) The second respondent failed to comply with the procedure prescribed in reg. 25A(1) and (2) of the regulations.
(E) The second respondent took into account rejected ballot papers and spoilt papers during the recount in contravention of regs. 25D(5B) of the regulations.
The second and third respondents raised preliminary objections on three grounds:
(a) the Election Petition does not satisfy the mandatory requirements of r. 4(1)(b) as there are no facts, and/or insufficiency of facts to sustain the prayers;
(b) the Election Petition does not satisfy the mandatory requirements of r. 4(1)(b) of the Rules as no grounds are stated to sustain the prayers;
(c) the Election Petition does not satisfy the mandatory requirements of r. 4(1)(b) of the said Rules read with s. 32(b) of the Act as the Election Petition lacked facts and grounds alleging that the non-compliance of written law relating to the conduct of elections had affected the result of the election.
After hearing submissions on the preliminary objections, the learned judge held that the said petition was defective as the mandatory requirements were not met. As such the said petition was struck out with costs.
We do not think that it can now be argued that an Election Judge has no power to strike out an election petition but must go through the whole process of trial and make a determination at the conclusion of the trial. We have seen that it had been the practice of Election Judges in this country ever since the law on elections were introduced in this country to strike out election petitions in appropriate cases. The observation by the Privy Council in Devan Nair (supra) is very clear. However, parties differed as to whether an election petition may be struck out for want of particulars. Learned counsel for the appellant relied on the decision of Muhammad Kamil Awang J in the case ofHarris Mohd. Salleh v. Ismail bin Majin, Returning Officer & Ors and Another Application (supra) for the proposition that insufficient particulars cannot be a good reason for striking out a petition as particulars, if insufficient, may be obtained from the petitioner by adopting the procedures laid down by the Rules of the High Court 1980.
The learned judge in this case declined to follow that judgment. The learned judge pointed out that Harris Mohd. Salleh (supra) was decided solely by reference to O. 18 r. 19 of the RHC 1980.
We have no reason to disagree with the learned judge on the facts of this case. However, in our view, whether or not insufficient particulars may warrant the striking out of an election petition depends on the seriousness of the omission and the consequential effects on the petition. It is to be decided according to the peculiar circumstances of each case.
In this appeal, all the three grounds of objections are premised on the failure to satisfy the requirements of the provisions of s. 4(1)(b) of the Rules, except that in the third objection, that rule was to be read with s. 32(b) of the Act.
Rule 4(1)(b) provides:
4(1) an election petition shall contain the following statements:
(a)
(b) it shall state the holding and result of the election and shall briefly state the facts and ground relied on to sustain the prayer.
The learned judge held that under the rule it is a mandatory requirement that a petition must state not only the facts but also the grounds relied on to sustain the prayer. Failure to do so would render the petition defective. He referred to Dr. Patau Rubis (supra), Devan Nair (supra), Chong Thain Vun (supra),Kua Kia Soong and Wan Daud (supra).
We have no reason to disagree with the learned judge on this point.
The learned judge then dealt with ” Ground A “. Considering Ground A and the particulars provided in support thereto and the relevant provisions of the law relied on (which according to the learned judge were ss. 24B(1), (4), (6) and (7) of the Act, the learned judge concluded that the particulars refer to acts committed prior to the campaign period whereas the relevant section relied on refer to acts committed ” during the campaign period “. The learned judge said:
In Wan Daud bin Wan Jusoh, supra, at p. 388 para F left, Wan Yahya J (later SCJ) held that a petition under r. 4 must not only narrate the facts complained of but must relate or associate the complaints with the provision of election laws the respondent is alleged to have transgressed.
My perusal of Ground A leads me to the conclusion that the facts relied on by the petitioner do not fall within the ambit of s. 24B(1), (4), (6), (7) and (10) and so the question of the alleged transgression of the provisions of law is non-existent. The facts stated in Ground A are insufficient to sustain the prayers sought, as the election laws alleged to have been contravened have no nexus with the facts alleged. Since the facts do not relate or associate the complaints with the provision of election laws alleged to have been transgressed, there is undoubtedly a failure to comply with rule 4(1)(b).
In my view, the petitioner’s reliance on s. 24B and s. 32(b) and (c) is therefore clearly untenable.
We agree with him.
As regards Grounds B, C, D & E, the learned judge found that none of the grounds stated the particular provision of s. 32 which the petitioner had relied upon to avoid the election. The learned judge held that the failure was fatal. The learned judge continued:
However, even assuming for a moment that the petitioner is indeed relying on s. 32(b), I am of the view that the petitioner should have set out facts complying with the twin requirements of s. 32(b) so as to have a cause of action sufficient to sustain the prayers sought.
The petitioner’s omission, to specifically state that the conduct of the election has affected the result of the election, constitutes a missing link in the material portion of the cause of action. Hence, even if the petitioner’s allegations of fact were proved, that would still be insufficient to come within the twin requirements of s. 32(b) to sustain the prayers sought.
The learned judge referred to a number of authorities to support his view. We do not think that we have to discuss them. It is sufficient merely to say that s. 32(b) is too clear for anyone to have any doubt that the election of a candidate may only be declared to be void on any one of the grounds provided therein. To avoid the election on ground (b) ie, of non-compliance with the relevant law, it must be proved that there was not only non-compliance but also that such non-compliance had affected the result of the election.
The learned judge said:
The petitioner’s mere allegations of fact in Grounds B, C, D and E without also stating that as a result of non-compliance with the laws relating to the conduct of elections, the result of the election has been affected, have fallen short of the twin requirements of s. 32(b). Efficacy must be given to the words ‘facts’ and ‘grounds’ in r. 4(1)(b) and a nexus shown between them. In absence of one or the other, there would be no facts sufficient to formulate a cause of action to sustain the prayers sought.
The learned judge held that in respect of the four grounds the petitioner had failed to comply with the provisions of s. 32(b) read with r. 4(1)(b).
We agree with the learned judge.
Regarding Grounds B, C and D, as an additional ground, the learned judge said that the facts stated therein were facts alleged to have been done by the Second Respondent (the Returning Officer). However, the learned judge pointed out that the relevant law, ie, reg. 24(1)(c) for Ground B, reg. 25(12)(b)(ii) for Ground C and reg. 25A(1) and (2) for Ground D refer to acts of the Presiding Officer ( “Ketua Tempat Mengundi “) whose function is different from that of the Returning Officer. He concluded that the provisions of the law relied upon in each of these three grounds do not relate to the returning officer, thereby rendering the grounds defective and a failure to comply with r. 4(1)(b). Thus, the learned judge held that on the facts pleaded by the petitioner, the prayers sought could not be legally sustained.
We agree with his conclusion for the reasons given by him. We are also of the view that the learned Election Judge was right in striking out the petition.
We would dismiss the appeal with costs and order that the deposit be paid out to the respondents to account of their taxed costs and confirm the orders of the learned judge.

BEATRICE FERNANDEZ v. SISTEM PENERBANGAN MALAYSIA & ANOR

COURT OF APPEAL, PUTRAJAYA
ABDUL HAMID MOHAMAD FCJ; ARIFIN ZAKARIA JCA; MOHD GHAZALI YUSOFF JCA
[CIVIL APPEAL NO: W-02-186-96]
[2004] 4 CLJ 403
CONSTITUTIONAL LAW: Fundamental liberties – Equal protection – Federal Constitution, art. 8- Equality – Gender discrimination – Whether applies in collective agreements or employment contracts as between two private individuals – Whether protection in art. 8 only available to private individual as against the State – Whether constitutional law remedies available to private individual whose fundamental rights have been violated by another private individual – Constitutional law as a branch of public law – Whether constitutional law litigation must necessarily involve the State as a party

LABOUR LAW: Employment – Termination of service – On ground of pregnancy as per collective agreement – Whether discriminatory – Whether collective agreement violates fundamental liberties under art. 8 Federal Constitution – Whether collective agreement must conform to tenets of equality under art. 8(1) – Protection against ‘religion, race, descent, place of birth or gender’ discrimination – Whether art. 8(2) applies to collective agreement – Whether contravenes art. 8(2)

The terms and conditions of the appellant’s employment with Sistem Penerbangan Malaysia (‘the Airline’) were governed by a collective agreement, art. 2(3) of which provided that she must resign from her position as a flight-stewardess (or be terminated) if ever she should become pregnant. As it transpired, the appellant did become pregnant in the course of her employment, and the Airline, upon her refusal to submit her resignation, terminated her services. Aggrieved, the appellant brought an action in the High Court praying for, inter alia, a declaration that: (i) the collective agreement (in particular arts. 2, 16 and 19 thereof) was ultra viresart. 8 of the Federal Constitution and, therefore, void; and (ii) the termination of the appellant’s services was in contravention of s. 14(3) of the Industrial Relations Act 1967 and ss. 37 and 40 of the Employment Act 1955 and, therefore, void. The learned judge rejected the appellant’s action and she appealed to the Court of Appeal.
Held (dismissing the appeal)
Per Abdul Hamid Mohamad FCJ delivering the judgment of the court:
[1a] Constitutional law is a branch of public law; it deals with the contravention of an individual’s rights by a public authority. Where the rights of a private individual are infringed by another private individual, constitutional law (substantive or procedural) will take no cognisance of it. The very concept of ‘fundamental rights’ involves State action. These are rights guaranteed by the State for the protection of an individual against the arbitrary invasion of such rights by the State. Where the invasion is by another private individual, the aggrieved individual may have his remedies under private law, but constitutional remedies will not be available.
[1b]Article 8(1) of the Federal Constitution has no application to the facts of the instant case. A collective agreement is not a piece of legislation or ‘law’ to be taken cognisance of by the constitutional court; it is a ‘contract’ to be taken cognisance of by the Industrial Court, and is enforceable by way of an award of the Industrial Court.
[1c]Article 8(2) of the Federal Constitution also has no application in the present case. Article 2(3) of the collective agreement was not discriminatory in terms of ‘religion, race, descent or place of birth’ or even ‘gender’. Hence, it did not contravene art. 8(2) of the Federal Constitution.
[1d] The appellant’s assertion that the Airline was, at the material time, " a government agency ", was not evidentially substantiated. Apart from a statement from the Bar, the appellant did not even lead any evidence to show that the Airline was a ‘public authority’ at the relevant time.
[2]Section 37 of the Employment Act 1955, which relates to ‘Maternity Protection’ and the ‘Length of Eligible Period and Entitlement to Maternity Allowance’, clearly had no application to the facts of the present case. Similarly, s. 40 of the Employment Act 1955, which deals with the ‘Loss of Maternity Allowance for Failure to Notify Employer’, was completely irrelevant when applied to the factual matrix of the instant case.
[Decision of High Court affirmed.]
[Bahasa Malaysia Translation Of Headnotes
Terma dan syarat-syarat pekerjaan perayu dengan Sistem Penerbangan Malaysia (‘Sistem Penerbangan’) adalah dikawal oleh perjanjian bersama, di mana fasal 2(3)nya menyebut bahawa beliau harus meletak jawatan dari jawatannya sebagai pramugari penerbangan (atau diberhentikan) sekiranya beliau didapati mengandung. Perayu bagaimanapun telah mengandung, dan telah diberhentikan kerja oleh Sistem Penerbangan apabila beliau enggan meletakkan jawatan. Terkilan, perayu memfail tindakan di Mahkamah Tinggi memohon perintah, antara lain, bahawa: (i) perjanjian bersama (terutama fasal 2, 16 dan 19nya) adalah ultra vires fasal 8 Perlembagaan Persekutuan, dan kerana itu batal; dan (ii) penamatan perkhidmatannya adalah bertentangan dengan s. 14(3) Akta Perhubungan Perusahaan 1967 dan ss. 37 dan 40 Akta Pekerjaan 1955, dan kerana itu batal. Yang arif hakim menolak tuntutan perayu dan perayu merayu ke Mahkamah Rayuan.
Diputuskan (menolak rayuan)
Oleh Abdul Hamid Mohamad HMP (menyampaikan penghakiman mahkamah):
[1a]Undang-Undang Perlembagaan adalah satu cabang undang-undang awam; ia menyentuh perlanggaran hak-hak seseorang individu oleh pihak berkuasa awam. Di mana hak-hak seorang individu dilanggar oleh seorang individu lain, undang-undang perlembagaan (substantif mahupun prosedural) tidak mengambil endah mengenainya. Konsep ‘hak asasi’ itu sendiri melibatkan tindakan oleh Negara. Ini adalah hak-hak yang dijamin oleh Negara bagi maksud melindungi individu-individu terhadap tindakan Negara melanggar hak-hak tersebut secara sebelah pihak. Di mana perlanggaran adalah oleh seorang individu yang lain, individu yang terkilan boleh mendapatkan remedinya di sisi undang-undang persendirian, tetapi tidak di sisi undang-undang perlembagaan.
[1b] Fasal 8(1) Perlembagaan Persekutuan tidak terpakai kepada fakta kes di sini. Suatu perjanjian bersama bukanlah sejenis perundangan atau ‘undang-undang’ yang harus diambil peduli oleh mahkamah perlembagaan; ia sebaliknya adalah suatu ‘kontrak’ yang perlu diambil perhatian oleh Mahkamah Perusahaan, dan dilaksanakan melalui award mahkamah tersebut.
[1c]Fasal 8(2) Perlembagaan Persekutuan juga tidak terpakai kepada kes di sini. Fasal 2(3) perjanjian bersama tidak bersifat diskriminasi dari segi ‘ugama, bangsa, keturunan atau tempat lahir’ ataupun ‘gender’. Maka itu, ia tidak melanggari fasal 8(2) Perlembagaan Persekutuan.
[1d]Pengataan perayu bahawa Sistem Penerbangan adalah pada waktu material ‘sebuah agensi kerajaan’ tidak dibuktikan melalui keterangan. Selain dari kenyataan dari meja peguam, perayu tidak mengemukakan sebarang keterangan yang menunjukkan bahawa Sistem Penerbangan adalah sebuah ‘pihak berkuasa awam’ pada waktu berkenaan.
[2]Seksyen 37 Akta Pekerjaan 1955, yang berkaitan dengan ‘Perlindungan Bersalin’ dan ‘Tempoh Layak dan Hak Elaun Bersalin’, jelas tidak terpakai kepada fakta kes semasa. Begitu juga, s. 40 Akta Pekerjaan 1955, yang menyentuh perkara ‘Kehilangan Elaun Bersalin Kerana Gagal Memberitahu Majikan’, sama sekali tidak relevan kepada fakta kes di sini.
Keputusan Mahkamah Tinggi disahkan.]
Reported by Gan Peng Chiang

Case(s) referred to:
Air India v. Nergesh Meerza [1981] 68 AIR 1829 (not foll)

Legislation referred to:
Indian Constitution [Ind], arts. 19, 32

Counsel:
For the appellant – M/s Fernandez & Co
For the 1st respondent – M/s Shearn Delamore & Co
For the 2nd respondent – M/s P Kuppysamy & Co

JUDGMENT
Abdul Hamid Mohamad FCJ:
The appellant started working as a flight stewardess, Salary Grade B, with the first respondent on 14 October 1980. The terms and conditions of the service was governed by the collective agreement dated 3 May 1988. Article 2(3) of the First Schedule to the collective agreement requires the appellant to resign on becoming pregnant. In the event she fails to resign the company shall have the right to terminate her services. Upon the appellant becoming pregnant and refusing to resign, the first respondent terminated her services. The appellant commenced proceedings in the High Court praying for a declaration that:
(a) the collective agreement dated 1 September 1987 contravened art. 8 of the Federal Constitution and is therefore void;
(b) Articles 2, 14 and 19 of the collective agreement are void as they contravene art. 8 of the Federal Constitution;
(c) The appellant’s termination of service is void as it contravenes s. 14(3) of the Industrial Relations Act 1967 and [s. 7 of the Labour Act 1955.]
She also prayed for damages for loss of employment and benefits derived therefrom, payment of salary and benefits from 1 April 1991, interests and costs.
The learned High Court judge dismissed the application with costs. The Appellant appealed to this court. We dismissed the appeal. These are our grounds.
Learned counsel for the appellant argued that art. 8 of the Federal Constitution does not say that only the State should not practise discrimination. So, the provision does not only apply to the State. Learned counsel further argued that in 1991, the first respondent was ” a government agency “.
It is elementary that constitutional law is a branch of public law. As Dr. (Justice) Durga Das Basu in his book ” Comparative Constitutional Law ” puts it:
Hence, the correct position is that in constitutional law, as a branch of public law, either or both the parties must be the State, as distinguished from a private individual.
From the Public Law stamp of Constitutional Law, the following consequences arise:
I. As a branch of public law, constitutional law deals with the contravention of individual rights by a public authority, ie, the State itself or any of its agencies, as distinguished from another individual.
II. Where both the parties affected by the infringement of a right are private individuals, Constitutional Law would take no cognisance of it by extending its substantive or procedural provisions.
Thus, even where the right violated by an individual is protected by the Constitution as a ‘fundamental’ right, nothing in art. 19 or 32 of the Indian Constitution can be invoked by the other individual who is aggrieved by such violation.
The very concept of a ‘fundamental right’ involves State action. It is a right guaranteed by the State for the protection of an individual against arbitrary invasion of such right by the State. Where the invasion is by another private individual, the aggrieved individual may have his remedies under private law, but the constitutional remedy would not be available.
To give an example, a father may not allow his daughter to marry a person of a different race but allows his son to do the same. The daughter has no constitutional remedy.
In any event, we fail to see how, on the facts, the case is caught by art. 8 of the Federal Constitution. Clause (1) declares that all persons are equal before the law and entitled to equal protection of the law. A collective agreement is not ” law ” in the context of art. 8. It is a contract when taken cognizance of by the Industrial Court, is enforceable as an award of that court. In other words, it is similar to a court order. Even a court order is not ” law ” in the context of art. 8. It is only an order binding on the parties therein. Similarly, a collective agreement, though taken cognizance of by the Industrial Court is only binding on the parties therein, though enforceable by the Industrial Court.
The discrimination prohibited by art. 8(2) of the Federal Constitution as at the date applicable to this case is on the ground only of religion, race, descent or place or birth, none of which applies to this case. The amendment to the Constitution which added the word ” gender ” to that provision only took effect from 28 September 2001. In any event, we do not think that it can be argued that art. 2(3) of the First Schedule of the collective agreement is discriminatory just as it cannot reasonably be argued that the provision of the law giving maternity leave only to women is discriminatory as against men.
In our judgment, this ground has no merits.
Learned counsel for the appellant, in a cursory manner, stated from the bar that the first respondent was, at that time, ” a government agency “. He did not refer to any evidence to support it.
On the other hand, we note that the appellant herself in her affidavit in support of her originating summons clearly stated:
2) Pihak Penentang Pertama adalah sebuah Syarikat yang ditubuhkan di Malaysia dan pejabat berdaftar mereka beralamat di…
We could not find any evidence whatsoever, neither was it pointed out to us, that the first appellant was ” a government agency ” as casually mentioned by the learned counsel for the appellant. If the appellant wants the court to decide on that issue, the appellant should have introduced evidence in her affidavits to that effect. The appellant had not done so.
The case of Air India v. Nergesh Meerza [1981] 68 AIR 1829 (SC) was brought to our attention. We do not think we have to dwell at length on that case. After all it is a decision of a court in a different jurisdiction based on the law in that country, the peculiar position of Air India vis-a-vis the State and the facts of that case. We are always of the view that it is very dangerous merely to lift one or two passages from a judgment in a foreign jurisdiction and apply it as if it is our written law.
In any event, a case has to be decided on its facts. As has been pointed out, the appellant herself did not introduce any evidence, not even a statement, that the first appellant is ” a public authority ” to bring it within the ambit of the constitutional provision. A mere statement from the bar that the first appellant was a government agency is not sufficient.
Next, it was argued that art. 2(3) of the First Schedule to the collective agreement contravenes the provisions of s. 37 of the Employment Act 1955. That section is too long to reproduce. Suffice for us to say that that section talks about entitlement to maternity leave, the length of the period of maternity leave a female employee is entitled to and the entitlement to maternity allowance. We just do not see the relevance of that provision to the facts of this case.
Our attention was also drawn to the provision of s. 40 of the Employment Act 1955 and we were urged to give a purposive interpretation as provided by s. 17A of the Interpretation Acts 1948 and 1967. With respect, we are unable to see the relevance of s. 40 of the Employment Act 1955. That section only requires a female employee who is leaving her employment to give four months notice to her employer about her pregnancy failing which she would not be entitled to any maternity allowance. We fail to see what kind of ” purposive interpretation ” could be given to the provision to render the provisions of the collective agreement null and void. This ground too has no merits.
On these grounds we dismissed the appeal with costs. The deposit was ordered towards taxed costs.

ALLIED CAPITAL SDN BHD v. MOHD LATIFF SHAH MOHD & ANOTHER APPLICATION

FEDERAL COURT, PUTRAJAYA
ABDUL HAMID MOHAMAD FCJ; RAHMAH HUSSAIN FCJ; RICHARD MALANJUM JCA
[CIVIL APPLICATION NOS: 08-32-1996 (W) & 08-34-1996 (W)]
[2004] 4 CLJ 350
CIVIL PROCEDURE: Jurisdiction – Federal Court – Whether Federal Court has jurisdiction to review its earlier decision – Whether such jurisdiction limited – Rules of the Federal Court 1995, r. 137

CIVIL PROCEDURE: Jurisdiction – Federal Court – Application to review earlier decision of Federal Court – Burden upon the applicant

The High Court made several orders on 6 February 1995 after a full trial in respect of the three suits filed thereat in 1986. The applicants appealed against those orders to the Court of Appeal. Their appeals were dismissed on 21 May 1996. The applicants then applied to the Federal Court for leave to appeal against the dismissal of those appeals. The applications were heard by Steve Shim (CJ Sabah and Sarawak) and Siti Norma Yaakob and Mohtar Abdullah FCJJ. On 12 April 2001, the Federal Court dismissed the application for leave to appeal to the Federal Court. The applicants then filed two new notices of motion, inter alia, praying for the order of the Federal Court dated 12 April 2001 to be set aside; and that they be given leave to appeal to the Federal Court against the whole of the order of the Court of Appeal dated 21 May 1996. The respondents applied to strike out the applicants’ motions on the grounds that: (i) the Federal Court had no jurisdiction or power to set aside its order given on 12 April 2001 or to re-hear the said application; (ii) that the decision of the Court of Appeal became final and was no longer appealable when the Federal Court dismissed the applicants’ application for leave to appeal on 12 April 2001; and (iii) that no circumstances existed to warrant the exercise by the Federal Court of its inherent power or discretion to review its decision given on 12 April 2001 and to re-hear the applicants’ application for leave to appeal against the decision of the Court of Appeal. The primary issue in the instant proceedings was whether the Federal Court had the jurisdiction to hear the applicants’ applications proper bearing in mind the grounds raised in the respondents’ applications.
Per Abdul Hamid Mohamad FCJ (dissenting):
[1] Rule 137 RFC 1995 does give the inherent powers to the Federal Court for the purposes stated therein. However, the inherent power that the Federal Court possesses is limited to situations where the order is a nullity because the court making the order was not properly constituted. To take it too far would defeat the concept of finality of a judgment and will open flood-gates as has started to happen, even with the restrictive views that the court has taken so far. (p 360 b-d)
[2] The applicants clearly failed to satisfy the Federal Court that the order of 12 April 2001 was a nullity because of illegality or want of jurisdiction or that it was made by a court which was not properly constituted warranting the order to be set aside. The applicants were actually asking the Federal Court to re-open, re-hear and re-examine its decision which it clearly had no jurisdiction to do. (p 362 d)
[Bahasa Malaysia Translation Of Headnotes
Mahkamah Tinggi telah membuat beberapa perintah pada 6 Februari 1995 selepas perbicaraan penuh 3 guaman yang difailkan dalam tahun 1986. Pemohon-pemohon merayu terhadap perintah-perintah tersebut ke Mahkamah Rayuan. Rayuan-rayuan mereka ditolak pada 21 Mei 1996. Pemohon-pemohon kemudiannya merayu ke Mahkamah Persekutuan untuk kebenaran merayu terhadap penolakan rayuan-rayuan tersebut. Pemohonan-pemohonan tersebut didengar oleh Steve Shim (HR Sabah dan Sarawak), Siti Norma Yaakob HMP dan Mohtar Abdullah HMP. Pada 12 April 2001, Mahkamah Persekutuan menolak permohonan untuk kebenaran merayu ke Mahkamah Persekutuan. Pemohon-pemohon kemudiannya memfailkan dua notis usul yang baru, antara lain memohon untuk perintah bahawa perintah yang dibuat oleh Mahkamah Perskutuan bertarikh 12 April 2001 diketepikan; dan mereka diberi kebenaran untuk merayu ke Mahkamah Persekutuan terhadap keseluruhan perintah Mahkamah Rayuan bertarikh 21 Mei 1996. Responden pula memohon untuk membatalkan usul-usul pemohon atas alasan antara lain adalah: (i) bahawa Mahkamah Persekutuan tidak mempunyai bidangkuasa atau kuasa untuk menolak perintah bertarikh 12 April 2001 atau untuk mendengar semula permohonan tersebut; (ii) bahawa keputusan Mahkamah Rayuan menjadi muktamad dan tidak boleh dirayu lagi apabila Mahkamah Persekutuan menolak permohonan pemohon-pemohon untuk kebenaran merayu pada 12 April 2001; dan (iii) bahawa tiada kewujudan keadaan yang mewajarkan Mahkamah Persekutuan menggunakan kuasa-kuasa sedia adanya atau budi bicaranya untuk mengkaji semula keputusan yang diberinya pada 12 April 2001 dan mendengar semula permohonan pemohon-pemohon untuk kebenaran merayu terhadap keputusan Mahkamah Rayuan. Isu utama di dalam kes semasa adalah samada Mahkamah Persekutuan mempunyai bidangkuasa untuk mendengar permohonan pemohon-pemohon sambil mengingati alasan-alasan yang dibangkitkan di dalam permohonan responden-responden.
Oleh Abdul Hamid Mohamad HMP (menentang):
[1] Kaedah 137 memang memberi kuasa-kuasa sedia ada kepada Mahkamah Persekutuan untuk tujuan-tujuan yang dinyatakan didalamnya. Walau bagaimanapun, kuasa sedia yang ada pada Mahkamah Persekutuan terhad kepada situasi-situasi dimana perintah yang diberikan merupakan satu pembatalan kerana mahkamah yang membuat perintah tersebut tidak dibentuk dengan betul. Untuk membawanya lebih jauh akan bertentangan dengan konsep penghakiman muktamad dan ianya akan membuka pintu kepada lebih banyak kes, yang sekarang ini sudah pun ujud walaupun dengan padangan terbatas yang diambil mahkamah setakat ini.
[2] Pemohon dengan jelas gagal memuaskan Mahkamah Persekutuan bahwa perintah bertarikh 12 April 2004 itu adalah satu pembatalan kerana ianya tidak sah atau diluar bidangkuasa atau ianya diputuskan oleh mahkamah yang tidak dibentuk dengan betul yang mewajarkan keputusan itu diketepikan. Pemohon-pemohon sebenarnya memohon Mahkamah Persekutuan untuk membuka semula, mendengar semula dan memeriksa semula keputusannya, yang secara jelas mahkamah ini tidak mempunyai bidangkuasa untuk berbuat demikian.
[Appeal from Court of Appeal, Civil Appeal No: W-02-109-1995; High Court, Kuala Lumpur, Suit No: C22-204-1986]
Reported by Andrew Christopher Simon

Case(s) referred to:
Adorna Properties Sdn Bhd v. Kobchai Sosthikul (Civil Appeal No: 02-14-1997 (P)) (Unreported) (refd)
Allied Capital Sdn Bhd v. Mohamed Latiff Shah Mohd & Another Application [2001] 2 CLJ 253 FC (refd)
Badiaddin Mohd Mohidin & Anor v. Arab Malaysian Finance Bhd [1998] 1 CLJ 393 FC (refd)
Buildingcon-Cimaco Concrete Sdn Bhd v. Filotek Trading Sdn Bhd [1999] 4 CLJ 135 HC (refd)
Chia Yan Tek & Anor v. Ng Swee Kiat & Anor [2001] 4 CLJ 61 FC (refd)
Lye Thai Sang & Anor v. Faber Merlin (M) Sdn Bhd & Ors [1985] 2 CLJ 453; [1985] CLJ (Rep) 196 SC (refd)
Megat Najmuddin Dato’ Seri (Dr) Megat Khas v. Bank Bumiputra (M) Bhd [2002] 1 CLJ 645 FC (refd)
MGG Pillai v. Tan Sri Vincent Tan Chee Yioun [2002] 3 CLJ 577 FC (refd)
Moscow Narodny Bank Ltd v. Ngan Chin Wen [2004] 2 CLJ 241 FC (refd)
Muniandy Thamba & Anor v. DC Bank & Anor [1996] 2 CLJ 586 FC (refd)
R v. Bow Street Metropolitan Stipendiary Magistrate, ex p Pinochet Ugarte (No 2) [1999] 1 All ER 577 (refd)
Sri Kelang Kota – Rakan Engineering JV Sdn Bhd v. Arab Malaysian Prima Realty Sdn Bhd [2003] 3 CLJ 349 FC (refd)

Counsel:
For the applicant – Dato’ Pathmanathan (Murali Pillai & Sreether Sundaram); M/s Murali Pillai & Assoc & M/s Gideon Tan Razali Zaini
For the respondent – Raja Aziz Addruse (Liza Chan Sow Keng & Hema Markandan); M/s Liza Chan & C
JUDGMENT

Abdul Hamid Mohamad FCJ (dissenting):
In this judgment, ” applicants ” refer to the applicants in notice of motion, encl. 74(a) in 08-32-1996(W) and applicants in notice of motion, encl. 61(a) in 08-34-1996(W).
As this court is only concerned with the issue of jurisdiction to set aside its own order, it is sufficient merely to set out the chronology of events leading to these applications.
In 1986, three suits were instituted in the High Court. On 6 February 1995, after a full trial, the High Court made various orders. The applicants appealed to the Court of Appeal. Their appeals were dismissed on 21 May 1996. The coram of the Court of Appeal then was Gopal Sri Ram JCA, Ahmad Fairuz bin Dato’ Sheikh Abdul Halim JCA (as he then was) and Abdul Malek bin Haji Ahmad JCA.
The applicants then applied to this court for leave to appeal against the dismissal of those appeals. The applications were heard by Steve Shim (CJ Sabah and Borneo), Siti Norma Yaakob and Mohtar Abdullah FCJJ. On 12 April 2001, this court, dismissed the application for leave to appeal to this court. The court gave a written judgment reported under the name of Allied Capital Sdn Bhd v. Mohamed Latiff Shah Mohd & Another Application [2001] 2 CLJ 253.
On 18 September 2003 the applicants filed two new notices of motion (encl. 74(a) in 08-32-1996(W) and encl. 61(a) in 08-34-1996(W) praying for the following orders:
1) the Order of the Federal Court made on 12th April 2001 dismissing the Appellant/Applicant’s earlier Notice of Motion be set aside;
2) the earlier Notice of Motion be reheard;
3) the Appellant/Applicant be given leave to appeal to the Federal Court against the whole of the Order of the Court of Appeal dated 21st May 1996;
4) the Appellant/applicant be given leave to file and serve the Notice of Appeal within 14 days from the date of the Order giving leave;
5) all execution proceedings relating to the Order of the Court of Appeal dated 21st May 1996 and the High Court dated 6th February 1995 be stayed until final decision of the Federal Court;
6) the costs of this application be costs in the said appeal;
Subsequently, the respondents, on 21 November 2003, filed two notices of motion (encl. 76(a) in 08-32-1996(W) and encl. 63(a) in 08-34-1996(W)) praying for the applicants motions to be struck off on the following grounds:
(a) that the application which the Respondent purport to make to this Court by the said Notice of Motion is an abuse of process;
(b) that this Honourable Court has no jurisdiction or power to set aside this order given on 12.4.2001 (dismissing the Respondent application for leave to appeal against the decision of the Court of Appeal made on 21.5.1996 in the said matter) or to re-hear the said application;
(c) that the decision of the Court of Appeal became final and was no longer subject to any further appeal when this Honourable Court dismissed the Respondent’s said application for leave to appeal on 12.4.2001;
(d) that no circumstances exist to warrant the exercise by this Honourable Court of its inherent power or discretion to review its decision given on 12.4.2001 and to re-hear the Respondent’s said application for leave to appeal against the decision of the Court of Appeal.
(2) the costs of this application be borne by the Respondent and/or the solicitors for the Respondent; and
(3) such further and/or other reliefs and/or orders as this Honourable Court may deem fit and proper.
At the hearing we decided to hear the respondent’s applications first on the jurisdictional issue. But, to avoid confusion, in this judgment, I shall refer to the applicants in original applications as ” applicants “.
What must be stressed is that the applications before us are first, to set aside the order of this court dated 12 April 2001 and, if they succeed, for this court to rehear their other applications for leave to appeal against the Court of Appeal judgment on 21 May 1996 to this court. So, they have to cross the first hurdle first ie, to set aside the order of this court dated 12 April 2001.
The applicants admitted that they were not alleging that this court that made the order of 12 April 2001 was not properly constituted. Neither do they allege bias on the part of any of the judges who made the order. The allegation of bias is against Gopal Sri Ram JCA who was a member of the coram of the Court of Appeal that dismissed their appeal on 21 May 1996. But, that is not an issue yet before us. That will be an issue at the hearing of the applications for leave to appeal and, if leave is granted, at the hearing of the appeals. At this stage the only issue is whether the order of this court dated 12 April 2003 should be set aside.
In the course of the submission, the only ground that learned counsel for the applicants could come up with was that the earlier coram of this court had not had the advantage of considering subsequent decisions of this court and also the courts in England.
Now, let us look at the cases. In Lye Thai Sang & Anor v. Faber Merlin (M) Sdn Bhd & Ors [1985] 2 CLJ 453; [1985] CLJ (Rep) 196 (SC) the applicants applied by motion for an order that the judgment of the Supreme Court in the civil appeals, in which they were respondents, be reviewed.
The court held:
Where, therefore, a final decision has been delivered, an appeal is in effect heard and disposed of. In other words, it is brought to a final conclusion. And that being the case, the Supreme Court has no power to re-open, re-hear and re-examine its decision for whatever purpose. The only exception where there can be a re-hearing is only to the extent provided by section 42, in particular sub-section (3) of section 42. The other exception is as provided under section 44 sub-section (3) to the effect that every order such as that envisaged in sub-section (1) of section 44 may be discharged or varied by the full Court.
The next case is Chia Yan Tek & Anor v. Ng Swee Kiat & Anor [2001] 4 CLJ 61. The judgment in that case was delivered on 10 August 2001. In that case, the judgment of this court allowing the appeal from the Court of Appeal was pronounced by the deputy registrar on 22 December 2000. But, as on that day, out of the three judges who heard the appeal, two of them had retired, leaving only one. This court held that as the effective date of the judgment was the date of its pronouncement in open court ie, 22 December 2000 and on that day only one out of the three judges who heard the appeal was still in service (the other two having retired earlier), on the date of the pronouncement of the judgment, the court was not properly constituted. So, the application to set aside the order of 22 December 2000 was allowed.
The next case is MGG Pillai v. Tan Sri Vincent Tan Chee Yioun [2002] 3 CLJ 577. The judgment was delivered on 16 May 2002. In that case, this court heard the appeal on 12 and 13 January 1998 and judgment was reserved. On 12 July 2000, the judgment of the court by Eusoff Chin, the then Chief Justice and also the presiding judge, was read out by the senior assistant registrar. At the time of the delivery of the judgment, Chong Siew Fai CJ (Sabah & Sarawak) had retired from the bench on 2 July 2000. Both he and Wan Adnan, the then Chief Judge (Malaya), the other member of the panel, had intimated their approval to the written judgment of the Chief Justice. The applicant applied by way of motion to set aside the judgment on the grounds that: (i) the judgment was invalid as it was delivered by an improperly constituted court; and (ii) the judgment was tainted by apparent bias on the part of the presiding judge. The respondent responded by filing a motion to strike out the applicant’s motion on grounds of irregularities. (I am omitting reference to the ” third motion ” filed by the applicant as it is not relevant to the present discussion).
This court, by a majority, allowed the applicant’s application and dismissed the respondent’s application. In other words, the judgment of this court pronounced on 12 July 2000 was set aside. Both Siti Norma Yaakob FCJ and Haidar Mohd. Noor FCJ (as he then was) held that as the effective date of the judgment was the date of its pronouncement in open. The court followed Chia Yan Tek (supra), and held that since there were only two judges remaining on that day, and as no consent was given by the parties to the proceedings pursuant to the requirement of the preamended s. 78 of the Courts of Judicature Act 1964 ( ” CJA 1964 ” ) which was the law applicable in that case, for the proceedings to be continued by the remaining two judges, the judgment ” was ineffective and invalid as the court was not properly constituted, ” per Siti Norma Yaakob FCJ at p. 604 of the law report.
Steve Shim CJ (Sabah and Sarawak) dissented on this point. He was of the view that the judgment was ” not vitiated “, on two grounds. First, he was of the view that ” the need for consent of the parties (as provided by s. 78 CJA 1964 – added) is confined to the continued hearing as opposed to the concluded hearing of the proceeding before the remaining panel of judges. ” The learned Chief Judge (Sabah and Sarawak) went on to say:
Thus, on a proper construction, it must necessarily mean that where the actual hearing of a case is still continuing at the time of the inability of any judge, either through illness or any other cause, consent of the parties is required before the said hearing can be continued or proceeded with. Here, however, the hearing of the case had already been concluded or completed pending judgment or reserved judgment at the time of the said inability, no consent is needed.
Secondly, the learned Chief Judge was of the view that s. 78 was a ” contingency provision ” :
It provides for a contingency to wit, inability of a judge, through illness or any other cause, to attend the proceedings, or otherwise exercise his judicial functions. It comes into play only when the contingency occurs
In the instant case, the contingency occurs on 4 July 2000 when Chong Siew Fai (Sabah and Sarawak) retired. At the time, the new s. 78 applied. The right to consent provided under the old s. 78 did not apply. It is not disputed that at the time when Chong Siew Fai CJ (Sabah and Sarawak) retired, there were two other panel members still in office, ie Eusoff Chin Chief Justice and Wan Adnan CJ (Malaya). That being so, the amended s. 78(1) is clearly applicable because it specifically provides that the reserved judgment shall be given by the remaining judges not being less than two. Here, the reserved judgment was delivered on 12 July 2000 when both of the remaining judges were still in office. I therefore find no merit in the second approach propagated by counsel for the applicant. For the reasons stated, I hold the view that the Federal Court was properly constituted at the time the reserved judgment was delivered. That judgment is therefore not vitiated.
The applicants in the instant applications relied on the judgment of Steve Shim, Chief Judge (Sabah and Sarawak) in which while agreeing with Lye Thai Sang & Anor, he said:
Quite clearly, that observation was made in the context of the proper construction to be placed on s. 69(4) of the CJA. But that cannot be read to mean that the Supreme Court had been deprived of its inherent jurisdiction derived under the common law by virtue of s. 3(1)(a) of the Civil Law Act 1956, read with art. 121(2) of the Constitution. This is the common law exception quite apart from the statutory exceptions referred to in Lye Thai Sang. In any event, the Federal Court has now been conferred with inherent power under r. 137 of the Rules of the Federal Court 1995. This had also been reiterated very recently by the Federal Court in the case of Chia Yan Tek & Anor v. Ng Swee Kiat & Anor [2001] 4 CLJ 61 wherein Mohamed Dzaiddin Chief Justice said:
Rule 137 of the Rules clearly gives us the inherent powers to hear any application or to make any order as may be necessary to prevent injustice.
For the reasons stated, I hold the view that the Federal Court does have the inherent jurisdiction and power which can be invoked in limited circumstances to reopen, rehear and reexamine its previous judgment, decision or order which has been obtained by fraud or suppression of material evidence so as to prevent injustice or an abuse of the process of the court. In the circumstances, the preliminary objection raised by counsel for the respondent fails.
With respect, I do not think that s. 3(1)(a) of the Civil Law Act 1956 is applicable. That section begins with the words: ” Save so far as other provision has been made or may hereafter be made by any written law in Malaysia” The jurisdiction of this court is not only provided by ” written law ” but by the Constitution itself – see arts. 128 and 130. More detailed provisions regarding the jurisdiction of this court are to be found in the CJA 1964 and the Rules of the Federal Court 1995. In the circumstances, we do not think that we can invoke the provision of s. 3(1)(a) of the Civil Law Act 1956to generally introduce whatever additional jurisdictions the common law gives to the courts in England.
However, I agree that r. 137 does give the inherent powers to this court for the purposes stated therein. I also agree with the statement of Mohamed Dzaiddin, CJ in Chia Yan Tek (supra) quoted by the learned Chief Judge (Sabah and Sarawak), as a general statement. However, I am of the view that that statement should be read in the light of the facts of that case. In other words, the inherent powers that this court possesses is limited to situations where the order is a nullity either because the court making the order was not properly constituted as in Chia Yang Tek (supra) or M.G.G. Pillai (supra) (majority judgment), or on ground of illegality or lack of jurisdiction, as in Muniandy a/l Thamba & Anor v. D.C. Bank & Anor [1996] 2 CLJ 586 (FC) and Badiaddin Mohd Mohidin & Anor v. Arab Malaysian Finance Bhd [1998] 1 CLJ 393 (FC). To take it too far would defeat the concept of finality of a judgment and will open flood-gates as has started to happen, even with the restrictive views that the court has taken so far. The instant application is one such example.
Perhaps I should make brief reference to Muniandy (supra),Badiaddin (supra) andSri Kelang Kota – Rakan Engineering JV Sdn Bhd v. Arab Malaysian Prima Realty Sdn Bhd [2003] 3 CLJ 349, cited by learned counsel for the applicants.
Muniandy (supra) merely says that the court has inherent power to set aside an order which is a nullity. There is not even a suggestion that the order of this court dated 12 April 2001 is a nullity.
So is Badiaddin (supra), where, Mohd. Azmi FCJ said that one special exception to the general rule that a High Court cannot set aside a final order regularly obtained form another High Court of concurrent jurisdiction is that where the final judgment of the high Court could be proved to be null and void on ground of illegality or lack of jurisdiction.
Sri-Kelangkota – Rakan Engineering JV Sdn. Bhd (supra) concerns the granting of leave to appeal to this court. This court having granted leave, heard the appeal. The appeal was decided on its merits. Having decided that there were no merits in the appeal, at the end of the judgment Abdul Malek Ahmad FCJ, delivering the judgment of the court said:
Despite that, in the light of the authorities, we would hold that we are not prevented from reconsidering the issue of leave again. Coming back to the questions formulated for determination by this court, it is our view that the questions merely relate to the set of facts in the appeal and the application of the settled principles of law as it plain from the judgment of the Court of Appeal. As such, they do not come within the ambit of s. 96(a) of the CJA and, therefore, there is no necessity or purpose for this court to answer the questions posed regardless of the fact that leave to appeal has in fact been granted at an earlier hearing.
Similar situation also arose in Moscow Narodny Bank Ltd v. Ngan Chin Wen [2004] 2 CLJ 241. Abdul Malek Ahmad FCJ (who also wrote the judgment of the court in Sri-Kalangkota-Rakan (supra) ), who was himself a member of the panel that granted leave to appeal, having heard the appeal on merits, in his judgment observed:
Upon full analysis at the hearing of this appeal I now realise that may be the question should not have been allowed as in deciding the question in the Ernest Cheong appeal, this court had to decide when is the date the interest becomes due.
But, that statement is confined to such a situation ie, where having heard the full argument on the merits of the appeal, it became clear to the court, that there was really no question of general principle within the meaning of s. 96(a) CJA 1964. In such a situation the court may decline to answer the question.
This is not such a case. In these applications, this court had refused leave. These applications are to set aside that order refusing leave. If at all it may succeed, it is only on the ground that that order is a nullity on the ground of illegality or lack of jurisdiction or because the court making the order was not properly constituted.
In the instant applications, there is no allegation that the panel of this court that made the order of 12 April 2001 was wrongly constituted or that the order was a nullity on ground of illegality or lack of jurisdiction. The only ground put forward is that this court when hearing the application for leave and making the order of 12 April 2001 did not have the benefit of considering subsequent decisions, including, the House of Lords decision in R v. Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No. 2) [1999] 1 All ER 577.
First, it is not correct to say that this court when deciding the application for leave to appeal did not consider Pinnochet Ngarte case. That can be seen from the judgment of this court – see [2001] 2 CLJ 253.
Secondly, the principle of that case is not relevant at this first stage in these applications. In that case, the allegation of bias was against one of the judges that made the order sought to be set aside. In the instant applications, there is no such allegation against any of the judges of this court that made the order of 12 April 2001. The allegation of bias is against one of the judges of the Court of Appeal. That had been considered by this court when it heard the motion for leave culminating in the order of 12 April 2001. Before us, we have not reached that stage yet. We are only considering whether that order of 12 April 2001 should be set aside. Any allegation of bias will only be relevant if it is directed against at least one of the judges who made the order. There is no such allegation against any of them.
Thirdly, it is trite law that a matter is decided in accordance with the law then in force. Just because the court subsequently takes a different view, or the law has been amended subsequently does not give the right to a party who had lost the case earlier to re-litigate the case. Otherwise there will be no finality to any judgment, whatmore of the apex court.
The applicants have clearly failed to satisfy this court that the order of 12 April 2004 is a nullity because of illegality or for want of jurisdiction or that it was made by a court which was not properly constituted that warrants the order to be set aside. The applicants are actually asking this court to re-open, re-hear and re-examine its decision which this court clearly has no jurisdiction to do.
For these reasons, the respondents’ applications (encl. 76(a) in 08-32-1996(W) and encl. 63(a) in 08-34-1996(W) should be allowed with costs and the deposit is hereby ordered to be paid to be refunded to the respondents.
Rahmah Hussain FCJ & Richard Malanjum JCA (majority):
There are before this court two applications of similar nature (encl. 74(a) and encl. 61(a)) (the applications proper) filed on 18 September 2003 by the applicants pursuant to r. 137 of the Federal Court Rules 1995 in relation to two Federal Court Civil Appeals Nos. 08-32-1996 (W) and 08-34-1996 (W) respectively.
The applications proper were filed following the dismissal by this court on 12 April 2001 the application by the applicants for leave to appeal against the decisions of the Court of Appeal rendered on 21 May 1996.
And the appeals to the Court of Appeal came about after the High Court made several orders on 6 February 1995 after a full trial in respect of the three suits filed thereat in 1986.
In the applications proper the applicants seek for the following orders, inter alia :
(1) the Order of the Federal Court made on 12th April 2001 dismissing the Appellant/Applicant’s earlier Notice of Motion be set aside;
(2) the earlier Notice of Motion be reheard;
(3) the Appellant/Applicant be given leave to appeal to the Federal Court against the whole of the Order of the Court of Appeal dated 21st May 1996;
(4) the Appellant/Applicant be given leave to file and serve the Notice of Appeal within 14 days from the date of the Order giving leave;
(5) all execution proceedings relating to the Order of the Court of Appeal dated 21st May 1996 and the High Court dated 6th February 1995 be stayed until final decision of the Federal Court;
(6) the costs of this application be costs in the said appeal.
However, pending the hearing of the applications proper the respondents filed two notices of motion (encl. 76(a) in 08-32-1996 (W) and encl. 63(a) in 08-34-1996 (W) (subsidiary applications) praying for an order that the applications proper be struck off on the following grounds, inter alia :
(a) that the application which the Respondent purported to make to this Court by the said Notice of Motion is an abuse of process;
(b) that this Honourable Court has no jurisdiction or power to set aside this order given on 12.4.2001 (dismissing the Respondent application for leave to appeal against the decision of the Court of Appeal made on 21.5.1996 in the said matter) or to re-hear the said application;
(c) that the decision of the Court of Appeal become final and was no longer subject to any further appeal when this Honourable Court dismissed the Respondent’s said application for leave to appeal on 12.4.2001;
(d) that no circumstances exist to warrant the exercise by this Honourable Court of its inherent power or discretion to review its decision given on 12.4.2001 and to re-hear the Respondent’s said application for leave to appeal against the decision of the Court of Appeal.
At the outset of the hearing of the applications proper it was agreed that the subsidiary applications should be heard first and the jurisdictional issue determined.
Thus the primary consideration in this judgment is whether this court has the jurisdiction to hear the applications proper bearing in mind the grounds raised in the subsidiary applications.
In the event that the jurisdictional issue is determined in the affirmative for the applicants, the next stage will be for the applications proper to be heard on their merits.
In retrospect it would have been more advantageous in term of time and convenience if the applications proper and the subsidiary applications were heard together.
Rule 137 of the Federal Court Rules 1995 reads:
For the removal of doubt it is hereby declared that nothing in these Rules shall be deemed to limit or affect the inherent powers of the court to hear any application or to make any order as may be necessary to prevent injustice or to prevent an abuse of the process of the court.
It is obvious that although the rule is declaratory of the inherent common law powers of the court to prevent injustice or to prevent an abuse of the process of the court such move may have been necessary in view of art. 121(2) of the Federal Constitution which reads:
2) There shall be a court which shall be known as the Mahkamah Perseketuan (Federal Court) and shall have its principle registry in Kuala Lumpur and the Federal Court shall have the following jurisdiction, that is to say:
(a);.
(b)…; and
(c) such other jurisdiction as may be conferred by or under federal law.
Accordingly, as the law presently stands r. 137 is the federal law that gives this court the inherent powers and hence jurisdiction to hear matters such as the applications proper.
It is therefore not correct to say that this court has no jurisdiction to entertain any application which seeks for an order to review its earlier decision. There are decisions of this court made in the exercise of its inherent powers as stipulated in r. 137. (See: Chia Yan Tek & Anor v. Ng Swee Kiat & Anor [2001] 4 CLJ 61; MGG Pillai v. Tan Sri Vincent Tan Chee Yioun [2002] 3 CLJ 577).
In Chia Yan Tek & Anor (supra) at p. 72 Mohd. Dzaiddin CJ declared:
Rule 137 of the Rules clearly gives us the inherent powers to hear any application or to make any order as may be necessary to prevent injustice. The issue of reopening or reviewing our own decision in the instant case therefore does not arise.
In passing we are conscious of the on-going debate on the issue of whether art. 121(1), (1B) and (3) of the Federal Constitution have done away with the common law inherent powers and jurisdiction of the courts in this country. (See: Megat Najmuddin Dato’ Seri (Dr) Megat Khas v. Bank Bumiputra (M) Bhd [2002] 1 CLJ 645; MGG Pillai v. Tan Sri Dato’ Vincent Tan Chee Yioun (supra);cf. Filotek Trading Sdn Bhd v. Buildingcon-Cimaco Concrete Sdn Bhd [1999] 4 CLJ 135). But we need not have to dwell on that point in this judgment.
In addition we are of the view that r. 137 cannot be construed as to limit the jurisdiction of this court only to situations where its earlier decision is a nullity either because the court making it was not properly constituted or being illegal or lack of jurisdiction. In other words the exercise of jurisdiction should not be confined to the standing of the coram that rendered the impugned decision. Surely the phrase ‘to hear any application or to make any order as may be necessary to prevent injustice or to prevent an abuse of the process of the court’ is wide enough to encompass circumstances beyond those stated situations. To limit therefore the application of r. 137 to only certain situations would tantamount to stifling the wide jurisdiction envisaged therein. The foundation of the jurisdiction of this court under r. 137 is to ‘prevent injustice or to prevent an abuse of the process of the court’. (See: Megat Najmuddin bin Dato’ Seri (Dr) Megat Khas (supra) ).
No doubt the judicial pronouncements thus far on the said Rule appear to confine mainly on ‘coram failure’ situation hence ruling as being nullity the earlier decisions in issue. But these authorities in our view are merely instances on the application of the rule. They should not be read as having set down the parameters on the jurisdiction of this court in the context of the said rule.
In the subsidiary applications the grounds relied upon for asking the applications proper to be struck off are that the decision of the Court of Appeal had become final after the refusal of leave, that there was no longer any right of appeal against the decision of the Court of Appeal once the application for leave had been dismissed and that upon dismissal of the application for leave this court is functus officio.
With respect there is nothing in r. 137 indicating that such grounds are sufficient for the applications proper to be dismissed in limine without having to hear the merits.
Ultimately when invoking r. 137 an applicant in our view has the onerous task of establishing to the satisfaction of this court that on the facts, circumstances and the law as applied in an impugned decision in issue, it occasioned injustice or abuse of process which need to be rectified or prevented. Hence we would think that it is on a case by case basis. And we hasten to add that we do not think it was the intention of the legislature when promulgating r. 137 that every decision of this court is subject to review. To do so would be anathema to the concept of finality in litigation.
Just recently this court declined jurisdiction to hear an application made under r. 137. (See: Adorna Properties Sdn. Bhd. v. Kobchai Sosthikul (Rayuan Sivil No. 02-14-1997 (P)). But in that case it was obvious that that was the second time the applicant applied under r. 137 in respect of the same judgment of this court albeit on a different ground. Moreover it was not shown and even if it had been, the court was not convinced that the application of the law in the impugned judgment had occasioned grave injustice. There this court was also concerned with the attitude of the applicant venting his complaints against the impugned judgment by way of instalment in addition to the fact that there was a considerable lapse of time between the first and second applications.
The present applications proper however are the first attempt by the applicants to set aside 12 April 2001 decision of this court. Further the impugned decision is only on refusal of leave to appeal and not a substantive judgment. And views have been expressed in substantive judgments of this court where in retrospect having heard the merits of the appeal proper it was felt that the grant of leave to appeal should not have been made in the first place. Thus, if the grant of leave to appeal could be subsequently doubted there is no reason why the converse should not be permitted. And one way is the application of r. 137.
(See: Sri Kelangkota-Rakan Engineering JV Sdn Bhd & Anor v. Arab-Malaysian Prima Realty Sdn Bhd & Ors [2003] 3 CLJ 349; Moscow Narodny Bank Ltd v. Ngan Chin Wen [2004] 2 CLJ 241).
Thus, for the foregoing reasons we rule that this court has jurisdiction to hear the merits of the applications proper. The subsidiary applications are therefore dismissed with costs. And we hereby order that the applications proper be fixed for hearing accordingly.

FOO LIAN SIN & ANOR v. NG CHUN LIN & ANOR

COURT OF APPEAL, PUTRAJAYA
ABDUL HAMID MOHAMAD, JCA; K C VOHRAH, JCA; MOHD NOOR AHMAD, JCA
CIVIL APPEAL NO: A-02-316-2000
[2004] 4 CLJ 220
LAND LAW: Sale of Land – Conveyancing – Vendor disposing of two shophouses to two different purchasers – Both purchasers claiming to have purchased the same shophouse – Whether there was a mutual mistake – Description of Land as per qualified title, sale and purchase Agreement, and charge and schedule to annexture – Whether prevails over shophouse number assigned by local authority – Whether there was a collateral Contract as between both purchasers – Whether issue/register document of title should have been rectified under s. 30 of the Specific Relief Act 1950

CONTRACT: Sale and purchase of Land – Agreement for sale of Land and Building erected thereon – Vendor disposing of two shophouses to two different purchasers – Both purchasers claiming to have purchased the same shophouse – Whether there was a mutual mistake – Description of Land as per qualified title, sale and purchase Agreement, and charge and schedule to annexture – Whether prevails over shophouse number assigned by local authority – Whether there was a collateral Contract as between both purchasers – Whether issue/register document of title should have been rectified under s. 30 of the Specific Relief Act 1950

The 2nd plaintiff (‘Lim’) occupies a certain shophouse no. 9 as a tenant and runs a grocery thereat whilst the 1st defendant (‘Foo’) occupies and resides in the adjoining shophouse no. 11 as a tenant of the same landlord. Foo also operates a mini-market at shophouse no. 7 which he owns. It was the plaintiffs’ claim that a mutual mistake had occurred in the subsequent conveyance of the two said shophouses, thereby resulting in the defendants being registered as the owners of shophouse no. 9 and the plaintiffs as the proprietors of shophouse no. 11 instead. The defendants denied that there ever was such a mistake. The learned judge accepted the plaintiffs’ version that there was a mutual mistake and gave judgment in their favour. His Lordship believed the evidence of the landlord (subsequently, the vendor) as well as that of the solicitor who handled the sale and transfer of the said shophouses. The learned judge also held that there was a contractual relationship between the plaintiffs and the defendants – arising by way of a collateral contract – thereby enabling the rectification of the instrument (register/issue document of title) under s. 30 of the Specific Relief Act 1950.
Held (allowing the defendants’ appeal)
Per Abdul Hamid Mohamad JCA delivering the judgment of the court:
[1a] Although the learned judge had made a finding of fact that there was a mutual mistake in the sale of the said shophouses by the landlord/vendor to the plaintiffs and the defendants, there were sufficient grounds for the justices of appeal to take a different view.
[1b] It was clear from the defendants’ sale and purchase agreement, the charge and the schedule to the annexture thereto, and the ‘suratan hakmilik sementara’ that the defendants had wanted to purchase the plot of land known as HS(D) Ka 6792/79 PT 18177 together with the shophouse erected thereon. The confusion only arose because the sale and purchase agreement wrongly named this shophouse as ‘no. 11’ when it was actually ‘no. 9′.
[1c] Similarly, the plaintiffs’ sale and purchase agreement and the ‘suratan hakmilik sementara’ showed that the plaintiffs had wanted to purchase the plot of land known as HS(D) Ka 6793/79 PT 18178 together with the shophouse erected thereon. Again, there was confusion because this very shophouse was in fact no. 11 and not no. 9 as was named in the sale and purchase agreement.
[1d] Clearly, the shophouse number (as assigned by the local authority for the purpose of assessment) cannot prevail over the description of the land in the ‘suratan hakmilik sementara’ or the ‘PT number’ in all the relevant documents.
[1e] The plaintiffs themselves and/or their solicitors might have been mistaken but there was no mutual mistake as between the plaintiffs and the defendants.
[2] There was no main contract as between the plaintiffs and the defendants; hence, there could be no collateral contract between them.
[Orders of High Court set aside.]
[Bahasa Malaysia Translation Of Headnotes
Plaintif kedua (‘Lim’) menghuni sebuah rumah kedai di no. 9 sebagai penyewa dan menjalankan perniagaan kedai runcit disitu, sementara defendan pertama (‘Foo’) menduduki rumah kedai di no. 11 disebelahnya juga sebagai penyewa kepada tuan rumah yang sama. Selain itu, Foo juga menjalankan perniagaan pasaraya mini di rumah kedai no. 7 miliknya. Plaintif-plaintif mengatakan bahawa telah berlaku kesilapan fakta pada pindahmilik kedua-dua rumah kedai tersebut, yang berakibat defendan-defendan telah didaftarkan sebagai pemilik rumah kedai no. 9 dan plaintiff-plaintif pula sebagai pemilik rumah kedai no. 11. Defendan-defendan menafikan bahawa wujud kesilapan seperti yang dikatakan. Yang arif hakim menerima versi plaintif-plaintif bahawa terdapat kesilapan fakta dan memberi penghakiman kepada mereka. Yang arif hakim mempercayai keterangan oleh tuan rumah (kemudiannya sebagai penjual) serta peguamcara yang mengendalikan penjualan dan pindahmilik rumah-rumah kedai tersebut. Yang arif hakim juga memutuskan bahawa wujud hubungan kontraktual di antara plaintif-plaintif dan defendan-defendan – yang berbangkit dari satu kontrak kolateral – sekaligus membolehkan pembetulan dibuat kepada instrumen (daftar/keluaran dokumen hakmilik) di bawah s. 30 Akta Relif Spesifik 1950.
Diputuskan (membenarkan rayuan defendan-defendan)
Oleh Abdul Hamid Mohamad HMR menyampaikan penghakiman mahkamah:
[1a] Walaupun yang arif hakim telah membuat dapatan fakta bahawa terdapat kesilapan bersama dalam penjualan rumah-rumah kedai tersebut oleh tuan rumah/penjual kepada plaintif-plaintif dan defendan-defendan, terdapat alasan-alasan mencukupi bagi hakim-hakim rayuan untuk mengambil pendapat yang berbeza.
[1b] Adalah jelas dari perjanjian jualbeli defendan-defendan, dari gadaian dan jadual kepada annexure disitu, serta dari suratan hakmilik sementara bahawa defendan-defendan berhasrat untuk membeli plot tanah yang dikenali sebagai HS(D) Ka 6792/79 PT 18177 beserta dengan rumah kedai yang ada di atasnya. Salah faham hanya timbul sebab perjanjian jualbeli silap menamakan rumah kedai itu sebagai ‘no. 11’ sedangkan ia sebenarnya ‘no. 9’.
[1c]Begitu juga, perjanjian jualbeli plaintif-plaintif dan suratan hakmilik sementara menunjukkan bahawa plaintif-plaintif berhasrat untuk membeli plot tanah yang dikenali sebagai HS(D) Ka 6793/79 18178 beserta dengan rumah kedai yang ada di atasnya. Sekali lagi, salah faham wujud disebabkan rumah kedai itu sebenarnya no. 11 dan bukannya no. 9 sepertimana ianya dinamakan dalam perjanjian jualbeli.
[1d]Adalah jelas bahawa nombor rumah kedai (sepertimana diberikan oleh pihak berkuasa awam untuk tujuan penilaian) tidak dapat mengatasi pemerihalan tanah dalam suratan hakmilik sementara atau ‘nombor PT’ dalam dokumen-dokumen yang relevan.
[1e] Plaintif-plaintif sendiri atau peguamcara-peguamcara mereka mungkin tersilap, tetapi kesilapan bersama tidak wujud di antara plaintif-plaintif dan defendan-defendan.
[2]Tidak terdapat sebarang kontrak utama di antara plaintif-plaintif dan defendan-defendan; oleh itu tidak boleh wujud sebarang kontrak kolateral di antara mereka.
Perintah-perintah Mahkamah Tinggi diketepikan.]
[Appeal from High Court, Ipoh; Civil Suit No: 22-118-1996]
Reported by Gan Peng Chiang
Case(s) referred to:
Clarke v. The Earl of Dunraven and Mount Earl [1897] AC 59 (refd)
Kluang Wood Products Sdn Bhd v. Hong Leong Finance Bhd [1994] 4 CLJ 141 HC (refd)
Legislation referred to:
Specific Relief Act 1950, s. 30
Counsel:
For the appellant/defendant – Chan Kok Keong (Yan Wai Leong); M/s Chan & Assoc
For the respondent/plaintiff – Ng Poh Tat (Ng Whin Cheng); M/s Ng Poh Tat & Co.

Case History:
High Court : [2000] 6 CLJ 133

JUDGMENT
Abdul Hamid Mohamad JCA:
As there has been some confusion in the description of the two shophouses in question, we shall first make it clear that, in our judgment, shophouse no. 9 refers to the shophouse standing on land held under HS(D) Ka 6792/79 PT 18177 and shophouse no. 11 refers to the shophouse standing on land held under HS(D) Ka 6793/79 PT 18178. The two shophouses are adjoining to each other. The second plaintiff was occupying shophouse no. 9 as a tenant of a company called Hung Chun Sdn. Bhd. and operating a provision shop. The first defendant was occupying shophouse no. 11, also as a tenant of the same company. He operated a mini market at his own shophouse no. 7 which is adjoining shophouse no. 9.
As pointed out by the learned judge, both the first plaintiff and the second defendant were uninvolved parties in the action. They were cited as parties because they were co-proprietors of the respective land on which the two shophouses ware erected.
The plaintiffs claim that a mutual mistake had occurred in the conveyance of the two shophouses resulting in the defendants becoming the registered proprietors of shophouse no. 9 which was purchased by them and the plaintiffs becoming the registered proprietors of shophouse no. 11. The defendants denied that there was such a mistake.
The learned judge, after a full trial, made a finding of fact that there was a mistake in the conveyance of the two shophouses to the parties. He believed Mr. Yee Weng Thong, the Managing Director of Hung Chun Sdn. Bhd and landlord of the two shophouses whose evidence, in his view, was corroborated by Dato’ Daniel Tay, the solicitor who prepared the sale and purchase agreements for the transfer of the two shophouses to the respective parties. The learned judge found that their evidence lent credence to the second plaintiff’s claim.
On the first defendant’s claim that he had intended to purchase shophouse no. 9, the learned judge said:
On the other hand, the 1st defendant’s claim that he had intended to purchase only shop No. 9 is inconsistent with his inactivity immediately after the purchase. He had not, as he would be expected to, taken any step to obtain vacant possession of shop No. 9 which was being occupied by the plaintiffs. Neither did he take any step to move out of shop No. 11 which he was occupying in order to allow the plaintiffs to occupy it.
His conduct after the purchase clearly shows that he had settled on the status quo before the respective purchase of the lots by the parties – with him occupying and remaining at shop No. 11 and the plaintiffs remaining where they were at shop No. 9 to continue to operate their provision shop. Even more telling is the fact that he had continued to collect rent from the tenant of the upstairs portion of shop No. 11 well after the purchase, stopping only after April 1995 after the 2nd plaintiff informed him of the discrepancy.
In the event and for the reason aforesaid, I must so find that the respective land had been conveyed to the respective purchaser by mistake when the correct conveyance should have been as follows:
The land described as HS (D) Ka 6792/79 PT 18177 to the plaintiffs. The land described as HS (D) Ka 6793/79 PT 18178 to the defendants.
I must also find for the same reasons that the mistake was mutual to the plaintiffs and the defendants at the time of the conclusion of the respective Sales and Purchase Agreement in that the plaintiffs had indeed intended to purchase shop No. 9 and the defendants shop No. 11 – although there was no direct contractual relationship between the plaintiffs and the defendants, a salient point of law raised by counsel for the defendants which I shall consider shortly.
On the issue whether there was privity of contract between the plaintiffs and the defendants, the learned judge held:
The rule with respect to the rectification of instruments under s. 30 of the Specific Relief Act 1950 is concerned with ” mutual mistakes of the parties ” which could only arise between parties to a contract. It follows that unless the plaintiffs are able to establish in law that there is a contractual relationship with the defendants, a rectification of the register document of title of their property does not arise – an issue which I shall now consider.
The learned judge then went on to discuss the issue whether there was a contract between the parties and concluded that there was a collateral contract between them. Having been satisfied that there was a mutual mistake in the conveyance of the respective lots to the respective parties, the plaintiffs ” are entitled to activate the provision of s. 30 of the Specific Relief Act 1950 to rectify the respective entry in the register document of title to express the true intent of the parties. ” He therefore made the order directing the Registrar or Land Administrator to make the necessary rectification in the respective register document of title as well as on the issue document of title.
Was there a mutual mistake? Whilst we appreciate that that is a finding of fact by the learned trial judge, we are of view that there are sufficient grounds for us to differ. Both parties had wanted to purchase shophouse no. 9, the second plaintiff because he was occupying it and the first defendant because he was operating a mini-market at the adjoining shophouse no. 7 and wanted to extend his mini-market.
Let us look at the documents more closely. The sale and purchase agreement dated 11 May 1994 between Hung Chun Sdn. Bhd. (the vendor) and Foo Lian Sin and Law Yoke Lan (appellants/defendants) states that the land in question is HS(D) Ka 6792/79 PT 18177 but it went on to say ” with a shophouse erected thereon known as No. 11 “. The shophouse described as ” No. 11 ” is clearly wrong. The shophouse standing on that land is shophouse no. 9.
Form 16A ( ” gadaian ” ) dated 14 September 1994 prepared by Daniel Tay Kwan Hui, the same solicitor, described the land charged by the appellants/defendants to Malayan Banking Berhad as ” No. P.T. 18177 ” and ” Jenis dan No. Hakmilik ” as ” H.S.(D) Ka 6792/79 “. The same description of the land is stated in the Schedule to the Annexture thereto.
Form 11 A, the ” Suratan Hakmilik Sementara ” dated 24 February 1995 shows that the appellants/defendants are the registered proprietors of land described as ” No. PT 18177 “.
On the other hand, the sale and purchase agreement dated 13 May 1994 (two days after the date of the sale and purchase agreement executed by the appellants/defendants with the same vendor and prepared by the same solicitor) described the subject land as ” HS(D) Ka 6793/79 P.T. 18178 ” and went on to say ” with a shophouse erected thereon known as No. 9 “. Here again there is a mistake. The number of the shophouse standing on that land is shophouse no. 11.
Form 11A ( ” Suratan Hakmilik Sementara) in respect of PT 18178 shows that the registered proprietors are Ng Chun Lin and Lim Lian Tiam (respondents/plaintiffs).
It is clear that the sale and purchase agreement, the charge and the Schedule to the Annexture thereto and ” Suratan Hakmilik Sementara ” are consistent in that it was HS(D) Ka 6792/79 PT 18177 that was purchased by the appellants/defendants. However, in the sale and purchase agreement the shophouse number was wrongly described as ” No. 11 ” when it should be ” No. 9 “. That is the only document that mentions the shophouse number.
It is also clear that the sale and purchase agreement and the ” Suratan Hakmilik Sementara ” are consistent that HS(D) Ka 6793/79 PT 18178 was purchased by the respondents/plaintiffs. Again, the mistake is in the description of the shophouse number which was wrongly described as ” No. 9 ” when it should be ” No. 11 “.
Which should prevail, the shophouse number or the description of the land in the ” Suratan Hakmilik Sementara ” and the ” P.T. No. ” in all the documents, including the sale and purchase agreements? Clearly the shophouse number cannot prevail over the later. Shophouse number is the number given by the Local Authority for the purpose of assessment. Furthermore, the shophouse is part of the land. It cannot be sold without the land. It is the land that is sold with the shophouse standing on it.
So, from the point of view of the appellants/defendants they wanted to buy the land described as HS(D) Ka 6792/79 PT 18177 with the shophouse standing on it. That is what they got. The respondents/plaintiffs might have been mistaken in thinking that they were purchasing shophouse no. 9 when they bought the land described as HS(D) Ka 6793/79 PT 18178. If that is the case, that is their mistake. It may be that the solicitor had made a mistake. If that is the case, then the respondents/plaintiffs should have sued the solicitor. Whether it was the mistake of the respondents/plaintiffs or the solicitor, the mistake is not a mutual mistake between the appellants/defendants and the respondents/plaintiffs.
On that ground we are of the view that there was no mutual mistake as between the parties.
On the issue of privity of contract between the parties, the learned judge had correctly held that there was no privy of contract between them.
However, the learned judge also found that there was a collateral contract between the parties. He cited a number of authorities. We do not think that it is necessary to discuss them as we are of the view that they are not on point. For example, the case of Clarke v. The Earl of Dunraven and Mount Earl [1897] AC 59 concerned two participants in a regatta organised by a yatch club, the rules of which club bound the participants to pay all damages caused by fouling. Hence, when one of the participants fouled the other’s yatch, he was liable to pay damages to the other. The House of Lords held that there was a contract between the participants collateral to the main contract with the yatch club. That is because the participants had accepted the rules to be binding on them.
This is not such a case. Here the only thing in common was that the vendor was the same. By the respective sale and purchase agreements the vendor sold two different pieces of land to two different purchasers. There were no terms common, binding an affecting both parties as in that case.
Kluang Wood Products Sdn Bhd v. Hong Leong Finance Bhd. [1994] 4 CLJ 141 concerns an oral representation by one of the contracting parties to provide end financing. That was held to be a collateral contract besides the main contract as between the same parties.
The ” mistake ” in this appeal is not such a case. There is no main contract as between the plaintiffs and the defendants.
It is also pertinent to note that the existence of a collateral contract between the parties was not even pleaded.
On these grounds we allowed the appeal and set aside the orders of the learned judge. As, at the time we gave our decision we understood that no decision had been given in respect of the counterclaim we directed the learned judge to give his decision on the counterclaim. We also ordered the respondents/plaintiffs to pay the costs of this appeal and the costs in the court below and that the deposit to be paid to the appellants/defendants towards taxed costs.

GUNALAN RAMACHANDRAN & ORS v. PP

GUNALAN RAMACHANDRAN & ORS v. PP
COURT OF APPEAL, PUTRAJAYA
DENIS ONG, JCA; ABDUL HAMID MOHAMAD, JCA; ABDUL AZIZ MOHAMAD, JCA
CRIMINAL APPEAL NOS: W-05-26-2002, W-05-27-2002 & W-05-28-2002
6 AUGUST 2004
[2004] 4 CLJ 551
CRIMINAL LAW: Dangerous Drugs Act 1952 – Section 37(j) – Drug in receptacles – Whether 10% refers to receptacles rather than to total weight of Drug

CRIMINAL LAW: Dangerous Drugs Act 1952 – Section 39(B)(1)(a) – Drug trafficking – Samples of Drug for testing – Whether mandatory for 10% of total weight of Drug to be tested – Whether chemist should determine quantity for testing

CRIMINAL LAW: Dangerous Drugs Act 1952 – Section 39(B)(1)(a) – Drug trafficking – Possession – Exclusive possession

CRIMINAL LAW: Dangerous Drugs Act 1952 – Section 39(B)(1)(a) – Knowledge, how inferred

CRIMINAL LAW: Penal Code – Section 34 – Common intention – Whether misdirection on the part of trial judge in considering common intention – Whether inferred from facts and circumstances surrounding case

CRIMINAL PROCEDURE: Fact, finding of – No failure to consider material evidence in making finding of facts – Whether appellate interference warranted

EVIDENCE: Exhibit – Break in chain of evidence – Effect of – Whether fatal to prosecution’s case

A police team led by PW4 raided a squatter house. In the hall of the house were 10 persons. PW4 and his men then gained forcible entry into a room adjoining the hall. The second appellant attempted but failed to resist or obstruct PW4. Together with the first appellant were the second and third appellants who were seated shirtless on the floor. The first appellant dropped a ‘heat-sealer’ upon seeing PW4. In the presence of the three appellants, the police team conducted a search and seized several packages containing dangerous drugs. These packages were recovered on the floor where the first and second appellants were seated. The police team also seized drug packing paraphernalia. The appellants were convicted by the High Court on a joint charge under s. 39(B)(1)(a) of the Dangerous Drugs Act 1952(‘the DDA’), read with s. 34 of the Penal Code and sentenced to death. The appellants appealed. On appeal counsel submitted inter alia : (i) it was inherently incredible that the first and third appellants were sitting down when PW4 entered the room; (ii) there was a non-direction by the trial judge in that he did not consider it was a joint charge; (iii) the prosecution did not prove exclusive possession of the room by the appellants; (iv) there was no evidence of knowledge of the drugs, and without knowledge there could be no possession; (v) there was no nexus between the appellants and the drug. No finger printing impression sufficient for analysis could be lifted from the seized drug packages. Hand swaps and nail clippings were also not taken; (vi) there was a serious breach in the chain of evidence; (vii) the judge had wrongly invoked the presumptions under s. 37 (d) and (da) of the DDA; (viii) the judge had found the appellants guilty ‘by inference’; (ix) there was no evidence of how many random samples the chemist (PW2) took and what was the weight; and (x) the judge had erred in finding that the defence had failed to cast a reasonable doubt on the prosecution’s case.
Held (dismissing the appeal)
Per Abdul Hamid Mohamad & Denis Ong JJCA:
[1] Whether the first and third appellants were sitting down was a question of facts. The trial judge did not fail to consider material evidence adduced in making his finding of facts. He had the advantage of seeing and listening to the witnesses. There was no reason to interfere with his findings or decision.
[2] It was incorrect to say that the trial judge had not considered the question of the joint charge. The judge, had in his grounds of judgment, reproduced the arguments of counsel and the arguments of the DPP. He had also discussed at length the law on s. 34 of the Penal Code, and its ingredients, citing local and foreign authorities. He also made a specific finding regarding the second appellant, vis-a-vis s. 34. There was no misdirection on the part of the judge on the issue of common intention whether in law or on facts. His findings were clear and correct. Shamsuddin Hassan & Anor v. PP [1991] 3 CLJ 2414; [1991] 1 CLJ (Rep) 428 (distd); Too Yin Sheong v. PP [1999] 1 SLR 682 (CA (Singapore)).
[3] In the instant appeal, the appellants were found with the drugs and drug-packing paraphernalia in a room where only the three of them were present and entry into it by the police was resisted. The question of exclusive possession of the room was not material. The issue was whether they had the exclusive possession of the drugs.
[4] Knowledge is to be inferred from the facts and the surrounding circumstances of a case. In the instant case, with regard to the first and third appellants, the trial judge citing various authorities, dealt at length on the question of possession and knowledge. With regard to the second appellant, the trial judge found him liable under s. 34 of the Penal Code after recounting his involvement, perusing the evidence and discussing the law on s. 34. The trial judge was justified in making his decisions.
[5] The inability to lift sufficient finger print impressions from the packets for analysis and the failure to take hand swaps and finger nail clippings did not in any way affect that finding of possession by the trial judge. Such evidence would only add to other available evidence of possession.
[6] In a drug trafficking case, the chain of evidence is more important for the period from the time of recovery until the completion of the analysis by the chemist. Even then it does not necessarily mean that if the exhibit is passed from one person to another, every one of them must be called to give evidence of the handing over from one person to another and if there is a break, even for one day, the case falls. There should be no confusion between what has to be proved and the method of proving it. What has to be proved is that it is the substance that was recovered that was analysed by the chemist and found to be heroin, cannabis etc, and it is for the trafficking of that same substance that the accused is charged with. The proof of the chain of evidence is only a method of proving that fact. The fact that there is a gap does not necessarily mean that that fact is not proved. It depends on the facts and circumstances of each case.
[7] The chain of evidence is less important during the period it is received back from the chemist until it is produced in court. This is because, there is no law that the exhibit recovered must be produced in court failing which the prosecution’s case must necessarily fall. It may or it may not, again depending on the facts and the circumstances of each case. Sunny Ang v. PP [1966] 2 MLJ 195 (FC) (folld). In a drug trafficking case, the drug may be lost or destroyed subsequent to it having been analysed by the chemist. So long as there is no doubt that the drug analysed by the chemist is the same one that was recovered in the case and it is in respect of that drug that the accused is charged, and there is a reasonable explanation as to how it was lost or destroyed or the reason for the gap, there is no reason why the prosecution’s case should fall. In the instant case, there was no break in the chain of evidence whatsoever, from the day it was seized until the date of trial. The missing exhibits did not contain any drugs. They were empty plastic packets and a weighing machine. Their existence could be seen from the photographs, not to mention oral evidence.
[8] The judge clearly made a definite finding of possession of the drug by the first and third appellants. It was thus not correct to say that the judge relied on presumption (d) of s. 37 DDA to make a finding of possession and then relied on presumption (da) of the same section for trafficking.
[9] The trial judge had in fact used the word ‘inference’. However, the inference was in respect of the common intention which the judge drew from the facts. Common intention is proved by inference from the facts and the surrounding circumstances of the case.
[10] In Leong Boon Huat v. PP the court did not lay down the rule that 10% of the total weight of the plant material must be taken as sample for the purpose of tests. However, in the circumstances of that particular case the amount taken was found to be adequate by the court. In the absence of a specific provision of the law, it should be the chemist who determines the adequate quantity that should be taken as samples for the purpose of carrying out tests. Leong Boon Huat v. PP is not an authority for saying that the law requires that 10% of the total weight of the drug must be tested. There is no provision whatsoever in the DDA which requires at least 10% of the total weight of the substance in question be taken out for the purpose of analysis. The 10% mentioned in s. 37(j) of the DDArefers to ‘receptacles’ when the drug is contained in a number of receptacles, not to the weight, and not where the drug is found in one package only. PP v. Lam San[1991] 3 CLJ 2410; [1991] 1 CLJ (Rep) 391 (SC) (folld); Au Ah Lin v. PP[1963] 1 LNS 6; [1963] 29 MLJ 365 (FC) (folld); Leong Boon Huat v. PP [1993] 3 MLJ 11 (not folld);Loo Kia Meng v. PP[2000] 3 CLJ 653 (CA) (not folld).
[11] The judge had not misdirected himself on the law. He had considered the evidence both for the prosecution and for the defence very carefully, gave his reasons why he accepted or did not accept certain evidence and correctly came to the conclusions that he did. He had the advantage of seeing and hearing the witnesses. There was no reason why the Court of Appeal should interfere with his findings of facts or his final decision.
[Bahasa Malaysia Translation Of Headnotes
Sepasukan polis yang diketuai oleh PW4 menyerbu sebuah rumah setinggan. Di ruang depan rumah tersebut terdapat 10 orang. PW4 dan orang-orangnya memasukki sebuah bilik yang bersebelahan dengan ruang depan tersebut secara paksa. Perayu kedua mencuba tetapi gagal untuk menahan atau menghalang PW4. Bersama dengan perayu pertama, perayu kedua dan ketiga sedang duduk tanpa memakai baju di atas lantai. Perayu pertama menjatuhkan satu ‘heat-sealer’ apabila melihat PW4. Di hadapan ketiga-tiga perayu, pasukan polis menggeledah dan menyita beberapa paket yang mengandungi dadah merbahaya. Paket-paket tersebut dijumpai di atas lantai di mana perayu pertama dan kedua duduk. Pasukan polis juga menyita perlengkapan membungkus dadah. Perayu-perayu disabit oleh Mahkamah Tinggi di atas pertuduhan bersama di bawah s. 39(B)(1)(a) Akta Dadah Berbahaya 1952 (‘DDA’), yang dibaca bersama s. 34 Kanun Keseksaan dan dihukum bunuh. Perayu-perayu merayu. Semasa rayuan, peguam menghujahkan antara lain: (i) adalah sukar dipercayai yang perayu pertama dan perayu ketiga sedang duduk semasa PW4 memasuki bilik tersebut; (ii) tiada arahan dari hakim bicara yang beliau tidak menganggap ianya satu pertuduhan bersama; (iii) pendakwa tidak membuktikan milikan eksklusif bilik tersebut oleh perayu; (iv) tiada keterangan berhubung dengan pengetahuan mengenai dadah tersebut, dan tanpa pengetahuan tidak boleh ada milikan; (v) tiada hubungan di antara perayu dan dadah tersebut. Tiada kesan cap jari yang mencukupi dapat diambil dari paket dadah tersebut untuk dianalisakan. Kesan tangan dan potongan kuku juga tidak diambil; (vi) rangkaian rantai keterangan terputus dengan serius; (vii) hakim telah silap menggunakan anggapan-anggapan di bawah s. 37(d) dan (da) DDA; (viii) hakim telah mendapati perayu bersalah secara ‘inferens’; (ix) tiada keterangan mengenai berapa banyak sampel rawak yang diambil oleh ahli kimia (PW2) dan apakah beratnya; dan (x) hakim telah silap dalam keputusannya bahawa pihak pembela telah gagal meletakkan keraguan munasabah pada kes pendakwa.
Diputuskan (menolak rayuan)
Oleh Abdul Hamid Mohamad & Denis Ong HHMR:
[1] Sama ada perayu pertama dan ketiga sedang duduk adalah satu persoalan fakta. Hakim bicara tidak gagal untuk menimbang keterangan material yang dimajukan di dalam membuat keputusannya. Beliau mempunyai kelebihan melihat dan mendengar saksi-saksi. Tiada sebab untuk menganggu keputusan beliau.
[2] Adalah tidak betul untuk mengatakan bahawa hakim bicara tidak menimbangkan persoalan pertuduhan bersama. Hakim di dalam alasan penghakimannya, mengulangi kembali hujah-hujah peguam dan DPP. Beliau juga membincangkan dengan mendalam undang-undang berhubung dengan s. 34 Kanun Keseksaan, dan unsur-unsurnya, memetik autoriti tempatan dan luar negara. Beliau juga telah membuat pendapat yang spesifik berhubung dengan perayu kedua, berkenaan s. 34. Tiada salah arah oleh hakim berhubung dengan isu niat umum samada dalam undang-undang atau pada fakta. Keputusan beliau adalah jelas dan betul. Shamsuddin Hassan & Anor v. PP [1991] 3 CLJ 2414; [1991] 1 CLJ (Rep) 428(distd); Too Yin Sheong v. PP [1999] 1 SLR 682 (CA (Singapore)).
[3] Di dalam rayuan semasa, perayu dijumpai dengan dadah dan perlengkapan membungkus dadah di dalam sebuah bilik di mana hanya tiga orang darinya hadir dan kemasukan polis ke dalam bilik tersebut adalah ditentang. Persoalan mengenai milikan eksklusif bilik tersebut adalah tidak material. Isunya adalah sama ada mereka mempunyai milikan eksklusif dadah tersebut.
[4] Pengetahuan diinfer dari fakta-fakta dan keadaan sekeliling sesuatu kes. Di dalam kes semasa, berhubung dengan perayu pertama dan ketiga, hakim bicara memetik berbagai autoriti, membincang dengan mendalam persoalan mengenai milikan dan pengetahuan. Berkenaan dengan perayu kedua, hakim bicara mendapati bahawa beliau bersalah di bawah s. 34 Kanun Keseksaan selepas mengambilkira penglibatan beliau, membaca keterangan dan membincangkan undang-undang berhubung dengan s. 34. Hakim bicara mempunyai alasan yang kuat membuat keputusannya.
[5] Ketidakmampuan mendapat kesan cap jari yang mencukupi dari peket-peket tersebut untuk dianalisa dan kegagalan untuk mengambil kesan tangan dan potongan kuku tidak memberi apa-apa kesan kepada keputusan hakim bicara mengenai isu milikan. Keterangan sedemikian hanya boleh menambah kepada keterangan mengenai milikan yang sedia ada.
[6] Di dalam kes mengedar dadah, rangkaian keterangan adalah lebih mustahak untuk tempoh dari masa dijumpai sehingga selesai analisa oleh ahli kimia. Namun begitu, ianya bukan semestinya bererti yang jika exhibit tersebut dipindah dari seorang kepada seorang yang lain dan jika ianya terputus, walaupun sehari, kes akan gagal. Sepatutnya tidak terdapat sebarang kekeliruan di antara apa yang kena dibuktikan dan cara membukti. Apa yang mesti dibuktikan adalah bahawa bahan yang dijumpai yang dianalisa oleh ahli kimia adalah heroin, ganja dsb, dan tertuduh dituduh mengedar bahan tersebut. Bukti rangkaian keterangan hanyalah satu kaedah pembuktian fakta. Terdapatnya jurang kekosongan tidak semestinya bererti fakta tak terbukti. Ianya bergantung kepada fakta-fakta dan keadaan sesuatu kes.
[7] Rangkaian keterangan adalah kurang penting di dalam tempoh ia diterima dari ahli kimia sehingga ia dimajukan ke mahkamah. Ini adalah kerana, tiada peruntukan undang-undang yang menyatakan bahawa exhibit yang dijumpai hendaklah dimajukan ke mahkamah dan jika tidak kes pendakwa mesti gagal. Ia mungkin atau tidak, bergantung kepada fakta-fakta dan keadaan sesuatu kes. Sunny Ang v. Public Prosecutor [1966] 2 MLJ 195 (FC) (diikuti). Dalam kes mengedar dadah, dadah mungkin hilang atau rosak kerana ianya dianalisa oleh ahli kimia. Asalkan tidak terdapat keraguan yang dadah yang dianalisa oleh ahli kimia adalah dadah yang sama yang dijumpai di dalam kes dan ianya adalah dadah yang mana tertuduh dituduh, dan terdapat penjelasan yang munasabah kenapa ianya hilang atau rosak atau alasan untuk jurang kekosongan, tiada sebab kes pendakwa perlu gagal. Dalam kes semasa, tiada rangkaian keterangan tidak putus, dari hari ianya disita sehingga ke tarikh perbicaraan. Exhibit yang hilang tidak mengandungi sebarang dadah. Ianya hanya peket plastic yang kosong dan sebuah mesin timbang. Kewujudannya dapat dilihat di dalam gambar foto, dan juga keterangan lisan.
[8] Hakim dengan jelasnya membuat pendapat yang pasti mengenai milikan dadah oleh perayu pertama dan ketiga. Oleh yang demikian adalah tidak betul jika dikatakan yang hakim bergantung kepada anggapan-anggapan (d) s. 37 DDA untuk membuat keputusan mengenai milikan dan kemudiannya bergantung kepada anggapan (da) sekysen yang sama untuk pengedaran.
[9] Hakim bicara telah menggunakan perkataan ‘inferens’. Walaubagaimanapun, inferens tersebut adalah berhubung dengan niat umum yang mana hakim perolehi dari fakta. Niat umum dibuktikan melalui inferens dari fakta-fakta dan keadaan sekeliling kes.
[10] Dalam Leong Boon Huat v. Public Prosecutor mahkamah tidak menyatakan rukun bahawa 10% dari jumlah berat tumbuhan material mestilah diambil sebagai sampel untuk tujuan ujian.Walaubagaimanapun, dalam keadaan kes tersebut, jumlah yang diambil didapati mencukupi oleh mahkamah. Oleh kerana tiada peruntukan yang khusus di segi undang-undang, adalah wajar ahli kimia yang menentukan sama ada kuantiti yang diambil mencukupi sebagai sample untuk tujuan ujian. Leong Boon Huat v. Public Prosecutor bukanlah satu autoriti yang menyatakan undang-undang menghendakkan 10% dari jumlah berat dadah diuji. Tiada sebarang peruntukan di dalam Akta tersebut yang menghendakkan sekurang-kurangnya 10% dari jumlah berat bahan yang berkenaan diambil untuk tujuan analisa. 10% yang disebut di dalam s. 37(j) DDA merujuk kepada ‘bekas’ di mana dadah itu berada, bukan kepada beratnya, dan bukan bilamana dadah dijumpai di dalam satu peket sahaja.PP v. Lam San[1991] 3 CLJ 2410; [1991] 1 CLJ (Rep) 391 (SC) (diikuti); Au Ah Lin v. PP [1963] 1 LNS 6; [1963] 29 MLJ 365 (FC) (diikuti); Leong Boon Huat v. PP [1993] 3 MLJ 11 (tidak diikuti); Loo Kia Meng v. PP [2000] 3 CLJ 653 (CA) (tidak diikuti).
[11] Hakim tidak tersalah arah dirinya berhubung dengan undang-undang. Beliau telah menimbang keterangan dari kedua-dua pihak pendakwa dan pembela secara teliti, beliau telah memberi alasan mengapa beliau menerima atau tidak menerima sesuatu keterangan dan beliau juga telah dengan betul mencapai keputusannya. Beliau mempunyai kelebihan melihat dan mendengar saksi-saksi. Tiada sebab kenapa Mahkamah Rayuan patut mengganggu keputusan beliau disegi fakta atau keputusan muktamadnya.

Case(s) referred to:
Au Ah Lin v. PP [1963] 1 LNS 6; [1963] 29 MLJ 365 (refd)
Leong Boon Huat v. PP [1993] 3 MLJ 11 (refd)
Loo Kia Meng v. PP [2000] 3 CLJ 653 CA (refd)
Mohamad Radhi Yaakob v. PP [1991] 3 CLJ 2073; [1991] 1 CLJ (Rep) 311 SC (refd)
Mohan Singh Lachuman Singh v. PP [2002] 3 CLJ 293 CA (refd)
Muhammad Hassan v. PP [1998] 2 CLJ 170 FC (refd)
Munusamy v. PP [1987] 1 CLJ 250; [1987] CLJ (Rep) 221 SC (refd)
Pang Chee Meng v. PP [1992] 1 CLJ 39; [1992] 1 CLJ (Rep) 265 SC (refd)
PP v. Lam San [1991] 3 CLJ 2410; [1991] 1 CLJ (Rep) 391 SC (foll)
PP v. Poh Ah Kwang [2003] 2 CLJ 722 HC (refd)
Shamsuddin Hassan & Anor v. PP [1991] 3 CLJ 2414; [1991] 1 CLJ (Rep) 428 SC (dist)
Sunny Ang v. PP [1965] 1 LNS 171; [1966] 2 MLJ 195 (refd)
Toh Au Kwan v. PP (refd)
Too Yin Sheong v. PP [1999] 1 SLR 682 (refd)

Legislation referred to:
Dangerous Drugs Act 1952, ss. 2, 37(j), 39A
Excise Act 1961, ss. 17(1), 61, 75(1)
Penal Code, s. 34
Counsel:
For the 1st & 2nd appellants – Gurbachan Singh; M/s Bachan & Kartar
For the 3rd appellant – Suresh Thanabalasingam; M/s Kuldip & Assoc
For the respondent – Abdul Wahab Mohamad DPP

Reported by Andrew Christopher Simon

Case History:
High Court : [2002] 1 LNS 153

JUDGMENT
Abdul Hamid Mohamad JCA:
There are three separate appeals by the three appellants. However, even at the High Court they were referred to as the 1st, 2nd and 3rd accused and the appeal record also refer to them as the 1st, 2nd and 3rd appellants respectively. In this judgment I shall refer to them as 1st, 2nd and 3rd appellants, the 1st appellant being Gunalan a/l Ramachandran, the 2nd appellant being Ganesan a/l Haja Mohidin and the 3rd appellant being Victor a/l Rajendran.
Mr. Gurbachan Singh appeared for the 1st and 2nd appellants and Mr. Suresh Thanabalasingam and Mr. Kuldip Singh appeared for the 3rd appellant. Deputy Public Prosecutor, Encik Abdul Wahab bin Mohamad appeared for the Public Prosecutor.
As Mr. Suresh, learned counsel for the 3rd appellant adopted the submissions of learned counsel for the 1st and 2nd appellants and his (Mr. Suresh) brief submissions were on the same issues, I shall discuss the grounds of appeal and the submissions thereof on behalf of the three appellants together.
All the three appellants were charged as follows:
Bahawa kamu bersama-sama pada 3 Februari 1999, jam lebih kurang 10.25 malam, dibilik sebelah kanan sebuah rumah tidak bernombor Kg. Sam Yoke, Jalan Sungai Besi, Kuala Lumpur, Wilayah Persekutuan telah mengedar dadah berbahaya iaitu 61.1 gram monoacetylmorphines dan oleh yang demikian itu kamu telah melakukan satu kesalahan di bawah seksyen 39B(1)(a) Akta Dadah Berbahaya 1952 dan boleh dihukum di bawah seksyen 39B(2) Akta yang sama dan dibaca bersama seksyen 34 Kanun Keseksaan.
They were convicted and sentenced to death. They appealed to this court.
Briefly, the facts as adduced by the prosecution are that on 3 February 1999 at about 10.25pm, a team of police officers led by Chief Inspector Rajendran a/1 Kanesan (PW4) went to an unnumbered squatter house at Kampong Sam Yoke, Sungai Besi, Kuala Lumpur to conduct a raid. On arrival at the house, PW4 found the door of the house open. They rushed inside. At the hall which was on the right side of the house, they found a group of 10 Indian males who were sitting and watching television. PW4 introduced himself and directed his men to arrest them.
At that point of time PW4 saw a male Indian (2nd appellant) opening the door of the room adjoining the hall. As soon as the 2nd appellant saw PW4 and his team, the 2nd appellant closed the door. PW4 pushed the door and when the 2nd appellant pushed it back, PW4 kicked the door and rushed into the room followed by two of his men, ie, PW6 and Detective, Lans Corporal Ahmad Kamil (DLC Ahmad Kamil). Besides the 2nd appellant, PW4 saw two more Indian males ie, the 1st appellant and the 3rd appellant who were not wearing shirts sitting cross-legged on the floor in front of some ” barangan ” (goods/utensils). At the same time PW4 saw the 1st appellant dropping a heat-sealer on the floor. PW4 introduced himself as a police officer and directed PW6 and DLC Ahmad Kamil to hand-cuff the appellants. PW4 then conducted a search in the room in the presence of the three appellants and his two police officers. Resulting from the search, he seized the ” barangan ” that he found on the floor where the 1st and the 3rd appellants were sitting when he first entered the room. They are:
(i) One big transparent plastic packet containing yellow powder and ” ketulan ” suspected to be heroin;
(ii) Two transparent plastic packets which have been sealed, each packet containing two bundles of small plastic packets, each bundle containing 20 small plastic packets totaling 80 and each small plastic packet contained yellow powder and ” ketulan ” suspected to be heroin;
(iii) One transparent plastic bowl containing yellow powder and ” ketulan ” suspected to be heroin.
(iv) One metal container of Tong Kee Brothers Confectionery ” containing 56 sealed, small plastic packets each of which contained yellow powder and ” ketulan ” suspected to be heroin;
(v) a transparent plastic packet containing one bundle of small plastic packets which were empty;
(vi) one pink plastic packet containing empty transparent plastic packets;
(vii) a weighing machine with a brand name of ” Tanita ”
(viii) one heat-sealer with a brand name of ” impulse ” which was lighted;
(ix) a bunch of six keys;
(x) a pair of scissors black in colour.
After seizing those things, PW4 conducted a search outside the room but could not find anything incriminating. The three appellants, all the Indian males arrested at the hall and all the things seized were taken to Sentul Police District Office.
The chemist (PW2) confirmed that the yellow powder and granules found in the plastic packets and bowl contained monoacetylmorphines, a type of dangerous drugs under Part III, First Schedule of the Act and the weight was 61.1 grams.
The evidence of PW4 was confirmed by PW6.
At the end of the prosecution’s case, after hearing the submissions of learned counsel and the Deputy Public Prosecutor, the learned judge called upon all three appellants to enter upon their defence as charged. At the end of the case, after hearing the evidence adduced for the defence and the submissions of the learned counsel and the deputy public prosecutor, the learned judge found all the three appellants guilty as charged and convicted them.
Mr. Gurbachan Singh adopted his submissions in the High Court and went on to submit point by point which we shall deal with accordingly.
Ground 8
Learned counsel repeated the facts which I do not think I have to reproduce again and submitted that it was inherently incredible that the 1st and 3rd appellants were sitting down when PW4 entered the room.
This is a question of facts. The learned judge had discussed the evidence and dealt with the submission in his grounds of judgment:
Mengenai dakwaan pihak pembelaan bahawa keterangan pihak pendakwaan berbentuk syak-wasangka sahaja, peguam OKT1 bertikai adalah tidak munasabah bagi OKT1 dan OKT3 masih terus duduk bersila berhadapan dengan barangan yang mengandungi dadah itu setelah mereka terdengar bunyi bising diluar bilik tersebut, setelah mereka mendengar orang diluar bilik tersebut teriak ” polis ” dan setelah melihat OKT2 sedang tolak-menolak pintu bilik tersebut. SP4 dan SP6 menyatakan mereka ternampak OKT1 dan OKT3 sedang duduk bersila di atas lantai sebaik sahaja mereka memasuki bilik tersebut. SP4 dan SPG juga telah menyatakan kejadian itu berlaku dalam beberapa saat sahaja. Saya dapat memerhati SP4 dan SP6 semasa mereka berada dalam kandang saksi dan berpendapat mereka merupakan saksi-saksi yang lurus dan berterus terang. Mereka telah memberi keterangan tentang apa mereka melihat dan setelah saya meneliti keterangan mereka dengan terperinci, saya berpendapat tidak wujudnya alasan bagi saya menolak keterangan mereka tentang kedudukan OKT1 dan OKT3 semasa mereka menyerbu masuk bilik tersebut.
I do not find any misdirection on the part of the learned judge or failure to consider material evidence adduced in making his finding of facts. He had the advantage of seeing and listening the witnesses. I have no reason to interfere with his findings or decision.
Grounds 1 And 2
Learned counsel submitted that there was a non-direction by the learned judge in that he did not consider that it was a joint charge. He submitted that the prosecution must prove joint possession and joint trafficking.
First, it is not correct to say that the learned judge did not consider the question of joint charge. The learned judge, in his grounds of judgment, reproduced the arguments of learned counsel for the accused and the arguments of the Deputy Public Prosecutor. Then he discussed at length the law on s. 34 of the Penal Code, citing local, Singaporean and Indian authorities. He discussed the three ingredients of s. 34 under three heads as was done by Karthigesu JA (Singapore) in Too Yin Sheong v. PP [1999] 1 SLR 682 (CA (Singapore)), ie:
(i) the common intention of all;
(ii) in furtherance of the common intention; and
(iii) participation in the criminal act.
After discussing the law and the evidence under the first head, the learned judge concluded:
Dalam kes di hadapan saya ini, adalah jelas bahawa niat bersama ketiga-tiga tertuduh menurut rancangan yang telah mereka buat terlebih dahulu adalah untuk mengendalikan dadah itu di bilik tersebut. Wujudnya barangan seperti dadah yang berada dalam keadaan terbuka, paket-paket plastik kosong, alat penimbang dan alat ” heat-sealer ” menyokong inferens ini.
Regarding the second and third – heads (or ingredients), after referring to various authorities, the learned judge made a specific finding regarding the 2nd appellant. This is because, earlier on he had already ruled that from direct evidence adduced by the prosecution against the 1st and the 3rd appellant (who were sitting down on the floor shirtless with the drug), the heat-sealer which was still burning and the weighing machines with sealed and empty packets in front of them were clear proof that they were in possession of the drugs.
So, it was in respect of the 2nd appellant who was standing behind the door when PW4 pushed the door that he had to state his clear findings which he did, in these words:
Dalam kes di hadapan saya ini, kehadiran fisikal OKT2 di tempat kejadian itu, dalam bilik tersebut tidak dipertikaikan. Ia telah cuba menghalang SP4 memasuki bilik tersebut walaupun ia sedar SP4 adalah seorang anggota polis. Kehadiran OKT2 di bilik tersebut bersama penyertaannya bagi mencapai niat bersama mereka semuanya, membuatnya bertanggungan di bawah seksyen 39B(1)(a) Akta itu dibaca dengan seksyen 34 Kanun Keseksaan.
I do not see any misdirection on the part of the learned judge on the issue of common intention whether in law or on facts. His findings are as clear as they can be and, in my view, correct too.
One word should be said about the case of Shamsuddin bin Hassan & Anor v. Public Prosecutor [1991] 3 CLJ 2414; [1991] 1 CLJ (Rep) 428. In that case the police saw a bundle thrown out of the left window of a moving car that they were following. A policeman stopped his car and picked up the bundle containing drugs. The other police cars continued to follow the said car which later stopped after it met with an accident. The police found the two appellants, husband and wife, in the car and also a 15-month-old child in the arms of the mother, the second appellant. It was held:
(2) It is essential in relying on s. 34 of the Code that there should be evidence of a common intention or evidence from which such a common intention can be inferred. The mere fact of a bundle being thrown out of a car is not evidence of common intention or evidence from which common intention can properly be inferred.
(3) In this case, there was no evidence of custody or control of the drugs to raise the presumption under s. 37(d) of the Act that the appellants were in possession of the drugs, and the further presumption that they must have known that the drugs were cannabis. Until this can be proven, the presumption under s. 37(da) of the Act that the appellants were trafficking in dangerous drugs did not arise.
The facts of the two cases are poles apart. The decision in that case must be understood in relation to the facts of that case. A bundle containing drug was seen thrown out of a moving car. There were two persons in the car, the husband and the wife (and also the child). It is true that the bundle was thrown out of the left window, the side the wife was sitting. But, it was not known who between them threw it. She was holding the child and he was driving. There was nothing to connect the bundle with either of them and it could also be a case where one of them had no custody and control of the bundle and may not have knowledge of the content which was in a bundle. Or, it could also be that both of them had the custody and control and the knowledge of the drug in the bundle before it was thrown away.
The instant appeal is very different. The facts have been reproduced and requires no repetition. In my judgment, this ground fails.
Grounds 3, 4 And 5
It was argued that the prosecution did not prove who was the owner and the occupier of the house and the room. There were 13 people in the house, 10 in the hall and 3 in the room. There was free access. It was put to PW3 that the 1st appellant was the owner of the house. The prosecution’s case must fail because the prosecution did not prove exclusive possession of the room by the appellants. The appellants were merely present in the room in which the drugs were found. Learned counsel cited the cases of Mohan Singh a/l Lachuman Singh v. Pendakwa Raya [2002] 3 CLJ 293 (CA) and Pang Chee Meng v. PP [1992] 1 CLJ 39; [1992] 1 CLJ (Rep) 265 (SC).
Let us look at Pang Chee Meng v. Public Prosecutor (supra) first. In that case, the police laid an ambush and arrested the accused near the place where he was known to be living. Upon arrest, the accused allegedly gave information which led to the discovery of heroin, the subject matter of the charge. The drugs were found in a room he was known to be living in. At all time, after his arrest, the accused denied any knowledge of the drugs or that he gave information. It was in evidence that three other named persons also had access to the room. In the circumstances, no wonder the Supreme Court found that the learned Judicial Commissioner who tried the case was manifestly wrong to find as a fact that the appellant had exclusive possession of the room.
In Mohan Singh a/l Lachman Singh v. Pendakwa Raya (supra), a police raid was conducted at about 5.30pm at a flat. There were three males in that flat. The appellant was one of them. Two keys were recovered on the appellant’s person. The appellant then led the police party to another flat. The police officers gained access into the second flat by using one of the two keys to open the padlock that secured the collapsible grill at the entrance of the flat. The flat had six rooms. The police party and the appellant proceeded to one of the rooms. The police used the second key to gain access to that room. In the room they recovered the drugs. In the circumstances, this court found that it would be wholly unsafe to convict the appellant.
On the facts, the two cases are also very different from the instant appeal. In the instant appeal, the appellants were found with the drugs and drug-packing paraphanelia in a room where only the three of them were present and entry into it by the police was resisted. The question of exclusive possession of the room is not material. The issue is whether they had the exclusive possession of the drugs. This ground too fails.
Ground 15
It was submitted that there was no evidence of knowledge of the drugs. Without knowledge there could be no possession. Being able ” to see ” the drugs ” does not amount to possession and knowledge “, learned counsel submitted. Learned counsel referred us to PP v. Poh Ah Kwang [2003] 2 CLJ 722(HC) and Toh Su Kwan v. Public Prosecutor which was only referred to by the learned judge in Public Prosecutor v. Poh Ah Kwang (supra) from a ” typed ten page ex tempore judgment ” of this court. We do not have the full judgment. The passage of the purported judgment in Toh Su Kwan v. Public Prosecutor reproduced by the learned judge in Public Prosecutor v. Poh Ah Kwang (supra) is not sufficient to enable us to know exactly the decision of this court in Toh Su Kwan v. Public Prosecutor and the grounds thereto.
In any event, there is no shortage of cases on possession and knowledge in drug trafficking cases either by this or the highest courts in this country. The law is well established and requires no repetition. Knowledge is to be inferred from the facts and the surrounding circumstances of a case.
In the instant appeal, the learned judge, citing various authorities, dealt at length on the question of possession and knowledge. This is what the learned judge said:
Dalam kes di hadapan saya ini, saya mendapati keterangan langsung yang dikemukakan oleh pihak pendakwaan dengan jelas menunjukkan OKT1 dan OKT3 ada kawalan fisikal ke atas dadah itu dan ada pengetahuan tentang kewujudan dadah itu sendiri. Dadah yang terdapat dalam mangkuk plastik tersebut berada dalam keadaan terbuka dan boleh dilihat dengan jelas. Dadah yang terdapat dalam peket-peket plastik lutsinar itu juga boleh dilihat dengan jelas dengan mata kasar. OKT1 dan OKT3 sedang duduk bersila dalam keadaan tidak berbaju berhadapan dengan dadah itu dan barangan lain termasuk alat ” heat-sealer ” itu. Fakta-fakta ini dengan jelas menunjukkan OKT1 dan OKT3 ada milikan fisikal ke atas dadah itu. Keterangan juga menunjukkan alat ” heat-sealer ” itu masih terpasang dan berhaba yang menggambarkan alat itu sedang digunakan untuk tujuan mengsil sesuatu. Ini menggambarkan mereka sedang mengendalikan dadah itu termasuk barangan lain itu dan sedar tentang kewujudan dadah itu dan ada pengetahuan bahawa mereka sedang mengendalikan barang salah. Pada pendapat saya, peket-peket plastik kecil yang kosong itu serta alat penimbang dan ” heat-sealer ” itu merupakan barangan dan alat yang digunakan untuk menyusun dan membungkus dadah itu ke dalam peket-peket plastik kecil itu. Mendasarkan apa yang dibincangkan kini, adalah menjadi dapatan saya bahawa pihak pendakwaan telah membuktikan dadah itu ada dalam milikan OKT1 dan OKT3 dibilik tersebut pada 3 Februari 1999 jam lebih kurang 10.25 malam.
Regarding the 2nd appellant, the learned judge recounted his involvement as follows:
Seperti telah dibincangkan di atas, keterangan langsung menunjukkan hanya OKT1 dan OKT3 serta OKT2 berada dalam bilik pada masa itu. Mengenai kedudukan OKT2, keterangan menunjukkan sebaik sahaja SP4 dan pasukannya menyerbu masuk rumah tersebut dan berada di ruang tamu, OKT2 yang berada dalam bilik tersebut, telah membuka pintu bilik tersebut dan apabila ia melihat SP4 dan anggota pasukannya, ia telah tutup pintu itu dengan serta merta dan cuba menahan pintu itu apabila SP4 hendak memasuki bilik tersebut…
The learned judge then went on to discuss the law on s. 34 of the Penal Code and, referring to the evidence, made the following conclusions:
Dalam kes di hadapan saya ini, adalah jelas bahawa niat bersama ketiga-tiga tertuduh menurut rancangan yang telah mereka buat terlebih dahulu adalah untuk mengendalikan dadah itu di bilik tersebut. Wujudnya barangan seperti dadah yang berada dalam keadaan terbuka, peket-peket plastik kosong, alat penimbang dan alat ” heat sealer ” menyokong inerence ini.
and, later:
Dalam kes di hadapan saya ini, kehadiran fisikal OKT-OKT ditempat kejadian itu, dalam bilik tersebut tidak dipertikai. Ia telah cuba menghalang SP4 memasuki bilik tersebut. Walau pun ia sedar SP4 adalah seorang anggota polis. Kehadiran OKT2 di bilik tersebut bersama dengan penyertaannya bagi mencapai niat bersama mereka semuanya membuatnya bertanggungan di bawah seksyen 39B(1)(a) Akta itu dibaca bersama seksyen 34 Kanun Keseksaan.
It is true that the learned judge did not say in so many words, in respect of the 2nd appellant as he did in respect of the 1st and 3rd appellants that he found that there was direct evidence ( ” keterangan langsung ” ) that the 2nd appellant had the physical control of the drug and knowledge of its existence. However, invoking s. 34 of the Penal Code and in view of the evidence of the involvement of the 2nd appellant was also ” bertanggungan ” (liable).
I am satisfied that the learned judge was justified in doing so. This ground fails.
Grounds 6 And 17
It was submitted that there was no nexus between the appellants and the drug. Even though the packets containing the drug were sent to PW7 for finger printing impression, no finger printing impression sufficient for analysis could be lifted. Hand swaps and nail clippings were not taken.
In my view, such evidence, if any, would add to other available evidence of possession. Without it, it does not necessarily mean that possession is not proved. In view of what I have said earlier regarding proof of possession as found by the learned judge on the facts and in the circumstances of this case, the inability to lift sufficient finger print impressions from the packets for analysis and the failure to take hand swaps and finger nail clippings does not in any way affect that finding of possession by the learned judge. This ground too fails.
Grounds 7 And 10
Learned counsel then tried to cast doubts on the exhibits. He traced the history of the movement of the exhibits from the time of recovery until the trial. He drew our attention to the fact that the drug was recovered on 3 February 1999. On 15 March PW5 (the Investigating Officer) sent the exhibits to PW7, the police finger print expert. They were taken back on 23 August 1999. On 24 September the exhibits were sent to the chemist which was seven months and 20 days after the recovery. On 18 February 2000, the exhibits were taken back from the chemist. In April 2000 PW5 was transferred out. He did not send the exhibits to the store. He was interdicted in August 1999. There was no handing over until 28 March 2002 when the exhibits were handed to PW8 by PW5. In the meantime there was another officer who took over the case. The exhibits were not handed to Inspector Azizan Said. Three exhibits got lost. Chief Inspector Azizan Said was not called as a witness. Thus there was a serious break in the chain of evidence.
First, by way of a general observation, I am of the view that, in a drug trafficking case what is important is that it must be proved that it is the substance that was recovered that was sent to the chemist for analysis and it is that same substance that is found to be heroin or cannabis etc. and it is in respect of that substance that an accused is charged with trafficking. So, the chain of evidence is more important for the period from the time of recovery until the completion of the analysis by the chemist. Even then it does not necessarily mean that if the exhibit is passed from one person to another, every one of them must be called to give evidence of the handing over from one person to another and if there is a break, even for one day, the case falls. There should be no confusion between what has to be proved and the method of proving it. What has to be proved is that it is the substance that was recovered that was analysed by the chemist and found to be heroin, cannabis etc., and it is for the trafficking of that same substance that the accused is charged with.
The proof of the chain of evidence is only a method of proving that fact. The fact that there is ” a gap “, does not necessarily mean that that fact is not proved. It depends on the facts and circumstances of each case. There may be a gap in the chain of evidence. But, if for example, during that ” gap ” the exhibits are sealed, numbered with identification numbers, there is no evidence of tampering, there is nothing that would give rise to a doubt that that exhibit is the exhibit that was recovered in that case and that was analysed by the chemist, the fact that there is a gap, in the circumstances of the case, may not give rise to any doubt of that fact.
The second period is from the time that it was received back from the chemist until it is produced in court. In my view, the chain of evidence is less important during this second period. This is because, as far as I am aware, there is no law that the exhibit recovered must be produced in court and if not the prosecution’s case must necessarily fall. It may or it may not, again depending on the facts and the circumstances of each case. Even in a murder trial, the dead body is not produced in court. In Sunny Ang v. Public Prosecutor [1966] 2 MLJ 195 (FC) the body of the victim was not even recovered, yet the accused was convicted of murder. What the prosecution has to prove is that a particular person had died and the accused had caused his death. The death of the victim is not proved by looking at his remains in court, but by evidence of witnesses, the medical report, the identity card, the photographs and so on. Similarly, in a drug trafficking case, the drug may be lost or destroyed subsequent to it having been analysed by the chemist, there may be a gap in the chain of the people keeping custody of it subsequent to it having been analysed by the chemist until the date of trial, but so long as there is no doubt that the drug analysed by the chemist was the same one that was recovered in the case and it is in respect of that drug that the accused is charged, and there is a reasonable explanation as to how it was lost or destroyed or the reason for the gap, there is no reason why the prosecution’s case should fall.
In this case, the learned judge dealt at length on the issue of break of chain of evidence. First he reproduced the submission of the learned counsel that covered three pages of the judgment. Then he narrated the chronology in great detail (which I do not think it is necessary to reproduce) and concluded:
Setelah saya menelti fakta-rakta di atas, saya berpendapat dakwaan peguam OKT1 bahawa terputusnya rangkaian keterangan mengenai barangan kes tidak berasas. Peguam bertikai Ketua Inspektor Azizan Said tersebut tidak dipanggil untuk memberi keterangan ataupun ditawarkan kepada pihak pembelaan. Saya mendapati keterangan menunjukkan barangan kes tidak pernah diserahkan kepada Ketua Inspektor Azizan Said tersebut. Ini jelas dari keterangan SP5 dan SP8. SP5 menyatakan ia mengeluarkan barangan kes dari kabinet besinya di pejabat lamanya di Bahagian Narkotik, Ibu Pejabat Polis Daerah Dang Wangi pada 28 Mac 2002 dan menyerahkan barangan itu kepada SP8. SP8 mengesahkan ini dan menyatakan kes di Ibu Pejabat Polis Daerah Dang Wangi pada hari yang sama. Ini jelas menunjukkan barangan kes tidak pernah diserahkan kepada Ketua Inspektor Azizan Said seperti didakwa dan oleh itu saya tidak dapat memahami kenapa pegawai itu perlu memberi keterangan tentang barang kes ataupun hendaklah ditawarkan kepada pihak pembelaan. Disamping itu nama pegawai itu tidak tercatat dalam senarai saksi-saksi yang dikemukakan oleh timbalan pendakwa raya pada permulaan perbicaraan ini.
Mengenai tiga barang kes yang hilang itu, saya berpendapat ketakwujudan barangan itu tidak menjejaskan kes pihak pendakwaan. Ketiga-tiga barangan itu boleh dilihat dengan jelas dalam gambar barang kes, iaitu ekshibit P13 yang diambil pada 15 Februari 1999. Di samping itu, barangan itu jelas tidak mengandungi dadah itu. Keterangan menunjukkan peket-peket plastik itu adalah kosong semasa SP4 merampasnya. Dadah juga tidak dijumpai berada di atas alat penimbang itu. Kesimpulannya saya berpendapat dakwaan pihak pembelaan bahawa rangkaian keterangan terputus tidak berasas.
I agree with him that the argument has no merits. There is no reason why Chief Inspector Azizan Said should be called as a witness or at least offered to the defence as the exhibit was never handed over to him. He also found that there was no break in the chain of evidence whatsoever, from the day it was seized until the date of trial. Regarding the missing exhibits, they did not contain any drug. They were empty plastic packets and the weighing machine. Their existence could be seen from the photographs, not to mention oral evidence.
Under this head, it was also submitted that there was contradictory evidence as to whether the offending exhibit was in granular form or powdery. PW4 in his evidence at first said that it was “serbuk dan ketulan” but later only used the word “serbuk”. PW5 and PW7 described it as “serbuk”.
I have re-read the evidence of PW4. I find that the record shows that on numerous occasions in his evidence, PW4 used the words “serbuk dan ketulan”. Even if he had at times, used the word ” serbuk ” only (which I could not find) that would not make any difference.
Record of PW5’s evidence shows that the words ” serbuk and ketulan ” were consistently used even though the words ” serbuk ketulan ” and ” serbuk ” were also used.
Upon perusing the record of the evidence of PW7, I find that such words as ” ketulan serbuk “, ” serbuk “, ” serbuk-serbuk kecil “, ” serbuk-serbuk ” were used or recorded.
In fact, even learned counsel for the 2nd accused himself, in his cross-examination, is recorded to have used such words as ” ketulan/serbuk “, ” serbuk kecil ” and ” serbuk “.
This point is too trivial for this court to waste its time on.
Finally, under the same head, it was argued that there was discrepancy in the weight of the drug. In the charge first preferred before the Magistrate’s Court the weight of the drug was stated as 880 grams. From the evidence of the chemist (PW2) at pp. 101 and 102 of the appeal record, the total net weight (by learned counsel’s own calculation, I believe, as the chemist did not give the total weight that was given by the learned counsel) is 1211.3 grams but at pp. 98 and 99, the total net weight of the yellow granular and powdery substance is 779 grams.
Actually, the weight of 880 grams stated in the charge before the Magistrate’s Court is the gross weight of the suspected drug contained in the plastic packets as weighed by the police. The exhibits had not been analysed by the chemist yet. We cannot expect the initial weighing by the police to be as accurate as that done by the chemist. Regarding the alleged total 1211.3 grams, while writing this judgment, I did my own calculation and I found it to be 779.08 grams, not 1211.3 grams as alleged by the learned counsel. Regarding the total of 779 grams, that is correct. The difference of 0.08 grams with the total at pages 101 and 102 is because the decimal point was omitted. The difference of 0.08 grams is too small to cast any doubt on the evidence of weight of the yellow granular and powdery substance. In any event, that is not the weight for which the appellants were charged. They were charged with trafficking of 61.1 grams monoacetylmorphines. That is the weight given by the chemist. So, this ground has no merits.
Ground 14
It was also submitted that the learned judge had wrongly invoked the presumptions under s. 37(d) and (da) of the Act, referring to Muhammad bin Hassan v. Public Prosecutor [1998] 2 CLJ 170. This, according to him, was because there was no direct evidence of possession. At the worst only presumption (d) could be invoked.
I have perused the grounds of judgment of the learned judge. After dealing with the law on possession at length, the learned judge clearly made a definite finding of possession of the drug by the 1st and 3rd appellants. This is what he said:
Dalam kes di hadapan saya, saya mendapati keterangan langsung yang dikemukakan oleh pihak pendakwaan dengan jelas menunjukkan OKT1 and OKT3 ada kawalan fisikal ke atas dadah itu dan ada pengetahuan tentang kewujudan dadah itu sendiri.
He then went on to give his reasons for it and continued:
Mendasarkan apa yang dibincangkan kini, adalah menjadi dapatan saya bahawa pihak pendakwaan telah membuktikan dadah itu ada dalam milikan OKT1 dan OKT3 dibilik tersebut pada 3 Februari 1999 jam lebih kurang 10.25 malam.
SP2 telah mengesahkan bahan yang terdapat dalam peket-peket plastik itu dan mangkuk plastik itu adalah monoacetylomorphines adalah sejenis dadah berbahaya yang disenaraikan di bawah Bahagian III, Jadual Pertama kepada Akta itu. Berdasarkan demikian adalah menjadi dapatan saya bahawa anggapan pengedaran di bawah seksyen 37(da)(iiia) Akta itu telah timbul terhadaap OKT1 dan OKT3. Seperti telah diturunkan di atas seksyen 37(da)(iiia) itu memperuntukkan bahawa mana-mana orang yang didapati ada dalam pemilikannya 15 gram atau lebih berat menoacetylmorphines selain dari menurut kuasa Akta atau mana-mana undang-undang bertulis, hendaklah sehingga dibuktikan sebaliknya, dianggapkan sebagai mengedarkan dadah tersebut.
So it is not correct to say that the learned judge relied on presumption (d) to make a finding of possession and then relied on presumption (da) for trafficking.
Regarding the 2nd appellant, the learned judge’s finding was reproduced in the discussion under ground 16, supra.
This ground too fails.
Ground 18
Referring to the grounds of judgment at pp. 39 and 69, learned counsel submitted that the learned judge found the appellants guilty ” by inference “. This is what the learned judge said at p. 39 of the Appeal Record:
Berdasarkan keterangan di atas, timbalan pendakwa raya mendesakkan ketiga-tiga tertuduh sebenarnya bukan sahaja mempunyai niat bersama untuk berurusan dengan dadah itu tetapi sebenarnya inferens boleh dibuat bahawa ketiga-tiga tertuduh sedang berurusan dengan dadah itu dengan cara membungkus atau mengira peket-peket yang mengandungi dadah itu. (emphasis added).
That is the submission of the Deputy Public Prosecutor, not the learned judge’s finding.
At p. 69 of the Appeal Record, the learned judge said:
Dalam kes di hadapan saya ini, adalah jelas bahawa niat bersama ketiga-tiga tertuduh menurut rancangan yang telah mereka buat terlebih dahulu adalah untuk mengendalikan dadah itu di bilik tersebut. Wujudnya barangan seperti dadah yang berada dalam keadaan terbuka, peket-peket plasitk yang kosong alat penimbang dan alat ” heat-sealer ” menyokong inferens ini. (emphasis added).
It is true that this is his finding. It is true that he used the word ” inference “. But, the inference is in respect of the common intention which he drew from the facts. How else could common intention be proved if not by inference from the facts and the surrounding circumstances of the case?
This ground fails.
Ground 19
Learned counsel next attacked the evidence of the Chemist (PW2). He submitted that there was no evidence of how many random samples PW2 took and what was the weight. He relied on Loo Kia Meng v. PP [2000] 3 CLJ 653 (CA).
On this issue, it is necessary to take a close look at the relevant provisions of the Act and the decided cases again.
Section 37(j) of the Act provides.
(j) when any substance suspected of being a dangerous drug has been seized and such substance is contained in a number of receptacles, it shall be sufficient to analyse samples of the contents of a number not less than ten per centum of such receptacles and if such analysis establishes that such samples are all of the same nature and description, it shall be presumed, until the contrary is proved, that the contents of all the receptacles were of the same nature and description as the samples so analysed and if such analysis establishes that such samples consist of or contain a dangerous drug, it shall be presumed, until the contrary is proved, the contents of all the receptacles consist or contain the same proportion of such drug.
What is obvious is that the 10% refers to the number of receptacles, not the total weight of the drug found or the total weight of the samples taken.
What do the cases say?
First, we shall begin, for comparison, with the case of Au Ah Lin v. PP [1963] 1 LNS 6; [1963] 29 MLJ 365 (FC). In that case, the appellant was charged under s. 17(1) and 75(1) (a) of the Excise Act 1961. Section 61 of the Act provides:
When any goods suspected of being dutiable or otherwise liable to seizure have been seized, it shall be sufficient to open, examine, and if necessary to test the contents of ten per centum only of each description of package or receptacle in which such goods are contained, and the Court shall presume that the goods contained, in the unopened packages or receptacles are of the same nature, quantity and quality as those found in the similar packages or receptacles which have been opened.
Thomson LP, delivering judgment of the court said:
In our view section 61 does not require that samples be taken of the contents of every package or container which is in question. The samples shall be 10% of the packages or containers and when that is done the presumption mentioned in the section as to the contents of all the packages arises. In our view the section does not require the taking of any particular quantity. That is abundantly clear on the reading of the section itself. The words ” ten per centum ” refer to the packages, not to the contents of each package.
In my view the words used in Act under which the appellants are charged are even clearer than those used in theExcise Act 1961.
I shall now discuss the cases under the Act. In PP v. Lam San[1991] 3 CLJ 2410; [1991] 1 CLJ (Rep) 391 (SC) the respondent was charged for trafficking 34.81 grams of heroin which was found in a package at a house that was raided by the police. The learned judge found the evidence of the chemist ” sketchy ” and ” unsatisfactory ” and doubted the accuracy of the weight of the heroin analysed. It is to be noted that the chemist said that the weight of the greyish brown substance found in the plastic packet was 75.18 grams which on analysis, he found to contain 34.81 grams nett heroin.
In cross-examination, he said:
From ex 8C I cannot remember exactly but I think I took out about 100 grams for the purpose of analysis.
There is no record in my work sheet of my having taken out a. quantity of the substance for my analysis.
In re-examination, he said:
For the purpose of analysis the practice is to take out more than 10% of the weight of the sample for analysis.
Hashim Yeop A. Sani (CJ (Malaya), delivering the judgment of the court, said:
Looking at the evidence of the chemist in its totality, we found it difficult to accept the doubt of the learned judge at the close of the prosecution case to be a doubt arrived at on a rational basis. PW5 was a highly qualified chemist who had served the Department of Chemistry for 22 years and had testified as an expert witness in many court cases.
As to how a trial court should approach the evidence of a chemist, we wish to advert to the judgment of this court in Munusamy v. PP 1 where in a passage at p. 496F, Mohamed Azmi SCJ on behalf of the court put in focus the function of the chemist in a trial of this nature:
We are therefore of the view, that in this type of cases where the opinion of the chemist is confined only to the elementary nature and identity of substance, the court is entitled to accept the opinion of the expert on its face value, unless it is inherently incredible or the defence calls evidence in rebuttal by another expert to contradict the opinion. So long as some credible evidence is given by the chemist to support his opinion, there is not necessity for him to go into details of what he did in the laboratory, step by step.
Two things are implicit in that passage. First, unless the evidence is so inherently incredible that no reasonable person can believe it to be true, it should be accepted as prima facie evidence. Secondly, so long as the evidence is credible, there is no necessity for the chemist to show in detail what he did in his laboratory.
In our view, the evidence of the chemist in this case was more than sufficient as basis to call for the defence, granted that all the other ingredients of the offence had been successfully proved.
The evidence of the chemist must be looked at in its totality. Seen in its totality, the evidence of the chemist in his case is not sketchy at all. There is no need for him to say what instrument he used for the purpose of the analysis or that the instrument was in good working condition as we have to assume until the contrary is shown that he had the proper instrument to carry out his work. In this case he had even gone to the extent of giving a margin of error and had given the benefit of the doubt to the respondent.
Confining myself to the issue of weight of the samples taken for analysis in that case, it must be noted that the chemist admitted that there was no record in his work sheet of the quantity or weight of the substance he took for analysis. He said he thought he took about 10% of the weight for the purpose. In spite of that the Supreme Court held that the evidence of the chemist including that of the weight of the cannabis should be accepted.
In Leong Boon Huat v. Public Prosecutor [1993] 3 MLJ 11 dried leaves believe to be cannabis was recovered in a bag that was carried by the appellant. While the total weight of the plant material believed to be cannabis was 793.85 grams, the total weight samples taken for analysis was ” more than 10% ” of the nett weight of 793.85 grams of plant material. The chemist did not take any sample from the balance of the plant material which formed a very substantial part of the whole, for analysis. The main ground of appeal was that the testimony of the chemist did not prove beyond any reasonable doubt that the bulk of the dried leaves was cannabis within the meaning of s. 2 of the Act.
Edgar Joseph Jr. SCJ, delivering the judgment of the court said:
It is obvious that from the extracts of the testimony of the chemist, the following plain facts emerge:
First, the total weight of the plant material said to be cannabis was 793.85g.
Second, the total weight of the samples taken for analysis was ‘more than 10% of the net weight of 793.85g’ of plant material.
Third, the chemist did not take any sample from the balance of the plant material (which formed a very substantial part of the whole) for analysis.
Now, what does ‘more than 10% of the net weight of 793.85g’ mean? Does it mean 11% or 12% or more than that? Not to put too fine a point on it, the expression ‘more than 10%’ is ambiguous and there should be no ambiguity on such a matter where the life of a subject is at stake. What is necessary is that the testimony of the chemist upon such a matter must be clear and convincing.
To take the point a little further, if by the expression ‘more than 10% of the net weight of 793.85g’ means a little more than 10% – and we think, in ordinary parlance, it would not be incorrect to say that it bears such a meaning – then, as a matter of simple arithmetic, the testimony of the chemist, at best, established that the appellant was in possession of a little more than 79.30g of cannabis, which would be well below the statutory minimum of 200g of cannabis required for the operation of the presumption of trafficking under s. 37(da) of the Act.
It is true that the chemist did say that he had conducted a physical examination of the whole of the plant material, by which, we suppose, he meant a visual examination, aided no doubt by a microscope. But while the result of such an examination might well establish, on the balance of probabilities, that the plant material was cannabis within the meaning of s. 2 of the Act it was necessary to take the matter further and establish beyond any reasonable doubt that that was so. This further step would, of necessity, have involved the carrying out of chemical tests on adequate quantities of the plant material. What would be adequate quantities for this purpose would depend on the particular circumstances of each case and we do not consider that any useful purpose would be served by laying down any mathematical formula. Suffice it so say, that in the present case, we were not satisfied that the samples of plant material upon which the chemist had carried out the chemical tests were adequate, having regard to the total weight of the plant material, for the reasons stated.
Again, confining myself to the issue of weight, first it must be noted that the court made it very clear that what would be adequate quantities would depend on the particular circumstances of each case and the court did not consider that any useful purpose would be served by laying down any mathematical formula. The court went on to say: ” Suffice it to say that in the present case, we were not satisfied that the samples of plant material upon which the chemist had carried out the chemical tests were adequate having regard to the total weight of the plant material… ”
Clearly, the court did not lay down the rule that 10% of the total weight of the plant material must be taken as sample for the purpose of the tests. However, in the circumstances of that particular case the amount taken was found to be adequate by the court. So, I do not think that it is correct to say that the case laid down the principle that at least 10% of the total weight must be taken as sample for the purpose of carrying out the tests. Indeed, I do not think that that case laid down any general principle. The decision was confined to the circumstances of the case and, as stressed by the court, what would be an adequate quantity would depend on the particular circumstances of each case. Even then, the question is: In the absence of a specific provision of the law, who is to determine what is the adequate quantity that should be taken as sample(s) for the purpose of carrying out the tests? The court or the chemist? Who is the expert? Who carries out the test? The answer must be the chemist.
With greatest respect, I find that the judgment of the Supreme Court in that case is not an authority for saying that the law requires that 10% of the total weight of the drug must be tested. No reference was also made to Public Prosecutor v. Lam Sam (supra). With respect, the judgment seems to focus on the interpretation of the words ” more than 10% ” used by the chemist as if it is a statutory provision or a clause in a contract. The point is, there is no provision whatsoever in the Act which requires at least 10% of the total weight of the substance in question to be taken out for the purpose of analysis. As seen in Public Prosecutor v. Lam Sam (supra) the 10% is nothing more that the practice among chemists.
The only time the word ” ten per centum ” appears in the Act is in s. 37(j) reproduced above. That 10% mentioned in the Act refers to ” receptacles ” when the drug is contained in a number of receptacles, not to the weight, not where, as in Public Prosecutor v. Lam Sam (supra) and Leong Boon Huat v. Public Prosecutor (supra) the drug was found in one package only.
There appears to be a confusion as to the term 10% ie, 10% of what? This can be seen in Loo Kia Meng v. PP[2000] 3 CLJ 653 (CA). In that case dried plant material suspected was recovered from two packages. I shall allow the judgment of Shaik Daud Md. Ismail JCA, delivering the judgment of the court do the rest of the talking:
He testified that he took 20 random samples and after doing the chemical tests he concluded that all the dried plant material to be cannabis as defined in s. 2 of the Act. Now under s. 37(j) of the Act, the chemist is required to take a minimum of 10% by virtue of s. 37(j) of the Act (emphasis added). We find that when he said he took 20 random samples, it is ambiguous as the 20 samples taken by the chemist represented a fair sample of the total. With respect, we are unable to agree with that submission because the 20 sample could well be much less than the 10% required to be taken. We hold that pursuant to s. 37(j) of the Act, the chemist is required to give the actual amount or the actual weight of the samples taken in order to comply with that section.
With greatest respect, the sentence ” Now under s. 37(j) of the Act, the chemist is required to take a minimum of 10% by virtue of s. 37(j) of the Act ” is by itself ambiguous. 10% of what? If, as it appears to be, it is meant to be 10% of the total weight, clearly, that is not what s. 37(j) says. Neither does the section say 10% of the weight in each receptacle. Again with respect, I am unable to find any provision in the Act that requires the actual weight of the samples taken must be given in evidence. All that the section says is that, if ” such substance is contained in a number of receptacles, it shall be sufficient to analyse samples of the contents of a number not less than ten per centum of such receptacles… ” (emphasis added). The 10% refers to the number of receptacles, not the total net weight in all receptacles or in each receptacle. This had been made clear by the Federal Court since 1963 in Au Ah Lin v. Public Prosecutor (supra). It is unfortunate that neither Au Ah Lin v. Public Prosecutor (FC) (supra), nor Public Prosecutor v. Lam Sam (SC) (supra) was brought to the attention of the court. Even s. 37(j) which was mentioned in the judgment was not reproduced for closer scrutiny.
In the circumstances, with greatest respect, I am unable to follow Leong Boon Huat v. Public Prosecutor (supra) and Loo Kia Meng v. Pendakwa Raya (supra). Instead I prefer to follow Au Ah Lin v. Public Prosecutor (supra) and Public Prosecutor v. Lam Sam (supra).
In the instant appeal the chemist, in his evidence, gave the net weight of the ” yellow granular and powdery substance in each packet and the weight of monoacetylmorphines that he found in each packet, upon analysis. He took representative samples for the tests. He explained that by ” representative sample ” he meant ” sample taken for analysis would represent the whole bulk of the substance from which the representative sample was taken for analysis. The margin of error has been accounted for in the final reporting of the quantity of monoacetylmorphines in the homogenised yellow substance. ”
The chemist was not cross examined at all either on the net weight of the ” yellow granular and powdery substance ” in each packet or the total, the weight of monoacetylmorphines found in each packet or the total thereof or the weight of each sample taken or the total thereof.
Based on the law as discussed earlier and the evidence of PW2 I am satisfied that the learned judge was perfectly correct in accepting his evidence.
This ground too fails.
Alternative Submission
It was also argued, in the alternative, that the learned judge should have found that the prosecution had only proved custody and control against the appellants and therefore should have only called them to enter upon their defence for possession of the drug punishable under s. 39A.
With respect I do not agree with the learned counsel’s submission. This is because, as we have seen, the learned judge had made definite finding of possession by the appellants.
Ground 23
We shall now look at the appellants’ defence. The learned judge has reproduced the evidence of the appellants and their witnesses at great length. I do not think that it is necessary to reproduce it. I shall, however, reproduce his discussion of their evidence and his findings.
Di akhir kes pembelaan, setelah saya meneliti keterangan yang dikemukakan pada keseluruhannya, saya mendapati fakta yang tidak dipertikaikan ialah ketiga-tiga tertuduh berada dalam bilik tersebut pada 3 Februari 1999 jam lebih kurang 10.25 malam.
Dalam pembelaannya OKT1 menjelaskan pada hari kejadian, setelah selesai menyimpan barang-barang restorannya di rumah tersebut, ia telah memasuki bilik tersebut pada jam lebih kurang 10.00 malam untuk menukar bajunya. OKT3 telah mengikutnya dari belakang dan dalam bilik tersebut telah menyerahkan kad jemputan itu. Seterusnya OKT2 pula memasuki bilik itu. Ia sedang berdiri bersama OKT3 apabila pihak polis menyerbu masuk bilik tersebut. Ia menafikan ia sedang duduk bersila bersama dengan OKT3 dalam keadaan tidak berbaju berhadapan barang-barang kes dan sedang mengendalikan dadah itu semasa pihak polis menyerbu masuk.
OKT3 pula menyatakan ia pergi ke rumah tersebut dengan tujuan hendak menyerahkan kad jemputan itu kepada OKT1. Ia telah mengikuti OKT1 masuk ke bilik tersebut dan menyerahkan kad jemputan tersebut. Semasa itu OKT2 pun masuk ke bilik tersebut. Ia mendesakkan ia sedang berdiri dengan OKT1 dalam bilik tersebut apabila pihak polis menyerbu masuk. Ia juga menafikan ia sedang duduk bersila bersama OKT1 dalam keadaan tidak berbaju berhadapan barang-barang kes dan sedang mengendalikan dadah itu semasa pihak polis menyerbu masuk. OKT3 pula mengakui OKT2 ada jenguk dari pintu bilik tersebut apabila mereka mendengar bunyi bising di luar bilik tersebut dan mendengar seorang berteriak ” Polis “.
Dalam pembelaannya OKT2 pula menyatakan ia masuk ke bilik tersebut untuk meminta wang dari OKT1 untuk membeli makanan. Pada masa itu OKT1 dan OKT3 sedang berdiri dan bercakap sesuatu. Setelah ia mendengar bunyi bising di luar bilik tersebut dan perkataan ” polis ” ia telah menjenguk dari pintu bilik tersebut dan pada masa yang sama pihak polis telah menyerbu masuk bilik tersebut. OKT2 menafikan ia tutup pintu itu sebaik sahaja ia melihat anggota polis dan menahan pintu dari di buka apabila SP4 hendak memasuki bilik tersebut tetapi mengakui SP4 ada menendang pintu bilik tersebut.
Saya mendapati pembelaan ketiga-tiga tertuduh berbentuk satu penafian sahaja. Di akhir kes pembelaan saya mendapati pihak pembelaan tidak membawa atau menimbulkan apa-apa keraguan terhadap kes pendakwaan. Pihak pembelaan mencadangkan rumah tersebut merupakan rumah orang bujang dan ramai orang mempunyai akses ke rumah tersebut. Pihak pembelaan juga mencadangkan mana-mana orang boleh menggunakan bilik tersebut. Di samping itu ketiga-tiga tertuduh menyatakan penghuni rumah itu adalah Naga, Suresh dan Balan.
Seterusnya ketiga-tiga tertuduh termasuk SD4 telah menyatakan semasa mereka ditahan di ruang tamu rumah tersebut bersama beberapa lelaki India yang lain itu, pihak polis telah menjumpai satu beg ” pouch ” yang mengandungi peket-peket plastik berisi bahan kuning dan satu peket plastik lutsinar dibaluti kertas yang mengandungi bahan yang sama di atas sofa dan di atas atau berhampiran sebuah set televisyen di ruang tamu itu. Semasa SP4 diperiksa balas di peringkat kes pendakwaan, peguam OKT1 ada mencadangkan kepadanya bahawa ia menjumpai satu beg ” pouch ” di atas sofa dalam ruang tamu itu dan SP4 telah tidak bersetuju dengan cadangan itu. SP4 juga tidak bersetuju dengan cadangan peguam bahawa ia ada menjumpai dadah di ruang tamu rumah tersebut seperti dicadangkan. Walau apa pun, SP4 tidak pernah disoal di peringkat kes pendakwaan tentang peket plastik lutsinar yang berisi dengan bahan kuning yang dibaluti dengan kertas yang dikatakan berada di atas set televisyen atau berhampiran dengan set televisyen itu yang terletak di ruang tamu rumah tersebut. Setelah saya meneliti keterangan SP4 dan bandingkannya dengan keterangan tertuduh-tertuduh dan juga SD4, saya berpendapat beg ” pouch ” dan peket plastik berisi dadah yang dibaluti dengan kertas itu tidak wujud. Pada keseluruhannya penjelasan tertuduh-tertuduh tidak menimbulkan dalam minda saya keraguan yang munasabah terhadap salahnya tertuduh masing-masing.
Kesimpulannya saya mendapat kes pembelaan tidak membawa atau menimbulkan apa-apa keraguan terhadap kes pendakwaan. Saya juga mendapati pihak pembelaan gagal mematahkan anggapan statutori bahawa tertuduh-tertuduh mengedar dadah itu. Saya berpuashati melampaui keraguan munasabah bahawa tertuduh-tertuduh bersama-sama telah melakukan kesalahan pengedaran dadah itu. Penjelasan yang diberi oleh tertuduh-tertuduh tidak menimbulkan apa-apa keraguan. Apa yang jelas ialah keterangan dengan jelas menunjukkan tertuduh-tertuduh telah bersama-sama melakukan perbuatan jenayah itu, iaitu, mengedar dadah berbahaya itu bagi mencapai niat bersama mereka semuanya dan oleh itu adalah bertanggungan atas perbuatan itu. Oleh itu saya telah memutuskan tertuduh-tertuduh bersalah dan mensabitkan mereka atas kesalahan mengedar dadah berbahaya itu dibawah s. 39B(1)(a) Akta itu. Seperti diperuntukkan oleh s. 39B(2) Akta itu, saya telah menjatuhkan hukuman mati terhadap tertuduh-tertuduh.
Learned counsel for the 1st and 2nd appellants argued that the defence was reasonable or probable to rebut the presumption (da). He reiterated that the 1st accused brought his things to be kept in the house. Naga, Suresh and Balan were among the 10 people arrested. The 2nd and 3rd appellants assisted to unload the lorry. The lorry driver (DW4) was also arrested. Suresh, Naga and Balan were occupiers of the house. All those were not challenged, he submitted. Learned counsel referred to Mohamad Radhi Yaakob v. PP [1991] 3 CLJ 2073; [1991] 1 CLJ (Rep) 311 (SC), in particular the passage:
Held allowing appeal: (1) Even though a judge does not accept or believe the accused’s explanation, the accused must not be convicted until the court is satisfied for sufficient reason that such explanation does not cast a reasonable doubt on the prosecution’s case.
First, from the notes of evidence, I note that the learned Deputy Public Prosecutor had cross-examined the appellants and their witnesses at great length. Questions were put on all material aspects of the appellants’ evidence, including that the story about the alleged transfer of the 1st appellant’s goods to the house was a mere fabrication. That Naga, Suresh and Balan and DW4 (the lorry driver) were among the people arrested, is not in dispute. As to who are the ” penghuni tetap “, on the facts as to how and where the drug was found in relation to the appellants, it is not material. The point is, the learned judge had considered their evidence with great care and at great length and made his findings (of facts) that he did.
It is also not correct to say that the learned judge failed to apply his mind to the principle stated in Mohamad Radhi ‘s case reproduced above. The part of his judgment that we have reproduced shows that he did so in coming the findings that he did.
In conclusion, I find that the learned judge had not misdirected himself on the law. He had considered the evidence both for the prosecution and for the defence very carefully, gave his reasons why he accepted or did not accept certain evidence and correctly came to the conclusions that he did. He had the advantage of seeing and hearing the witnesses. I see no reason why I should interfere with his findings of facts or his final decision.
I would dismiss the appeal and confirm the convictions and sentence.

HARMONIZATION OF ISLAMIC LAW AND CIVIL LAW: IS IT POSSIBLE?

KONVENSYEN MAHASISWA UNDANG-UNDANG KEBANGSAAN
Kulliyah Undang-Undang Ahmad Ibrahim
Universiti Islam Antarabangsa Malaysia
24-25 Julai 2004

HARMONIZATION OF ISLAMIC LAW AND CIVIL LAW: IS IT POSSIBLE?

 

The question has been answered

Looking at the title, I am tempted to give a one-sentence answer: Yes, in fact it has been done. But, certainly, I should not stop there otherwise I will disappoint you. So, I’ll go on to give some examples to support the answer.

Examples:

(1) Shariah Civil Procedure Act/Emanctments – adapted from the Subordinate Courts Rules 1980, with modifications.

(2) Shariah Criminal Procedure Act/Enactments – adapted from the Criminal procedure Code, with modifications.

(3) Shariah Evidence Act/Enactments – adapted from the Evidence Act 1950, with modifications.

(4) Islamic Family Law Act/Enactments.

(5) Common law remedies introduced in the Shariah Courts e.g. injunction, attachment of salaries, seizure and sale etc.

(6) Structure, name of Shariah Courts, follows the civil court.

(7) Desingnation, dress, manner of addressing judges copied from civil court.

(8) Islamic law principles introduced in federal law e.g. Islamic banking and takaful.

I have to make a point

Before going any further, I have to make a point. A few years ago, a student from the University of Istanbul came to interview me for his Phd. thesis. The first question he asked me was: “What is your definition of Islamic law?” I replied: “Any law that is not un-Islamic”. After he had returned to Istanbul, he sent me an email. Among other things he said: “How I wish that our ‘ulamas’ are as broadminded as you are.” I replied: “The point is I am not an ‘ulama’”. That is the point I want to make. So, if I say something concerning Islamic law which is not quite right, please correct me.

Misconception

(1) That what are commonly called “Islamic law” are all God-made law and that there are no non-Prophet human opinions in them and that what are called “civil law” are all un-Islamic. That I think that is not quite right. If we look at the details and pay more attention to substance rather than form, we will find more similarities than differences. A study made in Pakistan some twenty years ago found that about 90% of the Pakistani laws, which was based on common law principles, are not contrary to Islamic law. David Moussa Pidcock, who wrote the introduction to the book Napoleon and Islam says that 97% of Code Napoleon was taken from the rulings of Imam Malik. I would think the position in Malaysia is similar to that is Pakistan. In fact, I think, even if we decide to implement Islamic law in full in Malaysia, at least 80% of the existing laws will remain. You can call it my guess.

(2) That so long as you implement what you call Islamic law, no matter how it is implemented, there will be justice. That again, in my view, is wrong. Any law, so long as it is administered by humans, if not administered fairly, honestly and efficiently, may lead to injustice. If the law in question is Islamic law, Islam gets the blame.

(3) That all that is found in the “fiqh” books are God-made law, fixed, unchanging and unchangeable. Again, I do not think it is absolutely correct. If it is so, how do you explain the existence of the various schools of thought? Isn’t there a difference between “shariah” and “fiqh”? We know that within about a decade from the death of the Prophet, Umar Ibn Al-Khattab changed certain practices of the Prophet which we accept as Islamic and authoritative. We also know that after having lived in Egypt for a few years, Imam Shafi’e revised his earlier views. We live 1400 years away.

(4) That to implement Islamic law you have to return to the old days, centuries ago, do what they did, the way they did, no others and not differently. That, in my view, is unrealistic. The reality of today must be taken into account.

(5) The focus is more on punishment, not on Islamic law as a whole and justice.

Realities

(1) We live in a different world now. Many things that did not exist during the life time of those traditional “fiqh” scholars, exist now. Many things are now done differently from their time. Trading, for example, is no longer confined to direct selling where the seller, the buyer and the goods are present. On the other hand we now have insurance coverage, grading, standardization, warehousing etc. – see Prof. Hashim Kamali’s Islamic Commercial Law. Today, people borrow not just to buy basic necessities. In fact, richer people borrow more than poor people. No big business is financed by personal savings. You will never save enough to have the kind of capital needed. You have to borrow and a lot. We need more laws now than was required at their time. Many such laws were unimaginable during their time, e.g. cyber law, telecommunication law, electricity law, road traffic law, environmental law etc.

(2) The development of Islamic law had not kept up with the development in other fields, e.g. science, technology, international commerce, finance, banking etc.

(3) I do not think there is any model from any “Muslim” country for us to follow. Quite often we look at Sudan, Nigeria, Pakistan and Saudi Arabia. But, have they produced a system that is worth following? Nigeria introduced “hudud”. But, if you follow the development of the case of Saffiyatu Hussaini and Yakubu Abubakar, you see signs of back-tracking. The Shariah Appellate Bench of the Supreme Court of Pakistan came up with a very historic judgment on “riba”. That judgment has been set aside by the Supreme Court of Pakistan. I do not say whether the earlier or the later judgments in the two cases are right or wrong. I mention them merely to show the difficulties faced by them. In fact I was told that, after the judgment by the Shariah Appellate Bench, Pakistani officers came over to Malaysia to learn how we do things. In the affidavits filed in the application to set aside the judgment of the Shariah Appellate Bench, it was stated that the implementation of the judgment was neither practical nor feasible and would pose a high degree of risk to the economic stability and security of Pakistan. It was also said that the “parallel approach” would be the best in the interest of the country. That “parallel approach” is no other than the Malaysian approach as in the case of Islamic banking and “takaful”. So, we are the model.

(5) The details of Islamic law are still in text books, with opinions varying on similar issues. Whether we like it or not, under the present system, to implement a law, it has to be codified. The law has to be certain, so that lawyers know what the law is to enable them to advise clients and the courts know which law to apply.

(6) In Malaysia, shari’ah courts are state courts with jurisdiction within the state and over Muslims only. Their jurisdictions are limited to matters stated in List II of Ninth Schedule of the Constitution. Matters in List I are matters within federal jurisdiction. State legislatures cannot make laws over matters stated in Federal List and vice versa. It is mutually exclusive. There can be no parallel federal and state laws, even if one is for Muslims and the other for non-Muslims, unless specifically provided for e.g. personal law. Please do not get confused. Islamic banking and “takaful” laws are federal laws under “banking” and “insurance” which are matters in the Federal List.

Harmonization the only way

In the circumstances that we are in today, the only way to implement Islamic law is through harmonization with existing law (“civil law”). Merely abolishing the existing laws and declaring that it is replaced by “shari’ah” is not going to work. Ja’afar Nameiri did that in Sudan, for political reasons, and ended in a mess. The Talibans did that in Afghanistan and ended persecuting men without beard and women who do not wear the “burkha”. Zia Ul-Haq is supposed to have introduced “shari’ah” in Pakistan, again mainly, I believe, for political reasons. I do not know how well it is working. But from the “riba” case that I have mentioned and the “zina” cases that we have read, they seem to have serious problems too.

To what extent the two laws can be harmonized I do not know. It depends partly on our approach. If you want all or nothing and if you want to reset the clock 1400 years backward, I think, you will not get anywhere. But, if you are prepared to take stock of the present reality, approach the subject of Islamic law with a more open mind and apply the principles that are more readily acceptable and are applicable first and move step by step, I think you will get somewhere.

The approach:

If we want to sell our goods, we will have to promote them in the way that will attract the customers, without compromising the quality and character of our goods. You do not sell anything by condemning potential customers. We have to be pragmatic, not dogmatic.

(1) We have to work within the confines of the Constitution.

(2) We have to work on existing laws and make them Islamic. We need a basis to work on. Identify which parts of the existing laws are un-Islamic. Look for the principles of Islamic law, not so much the way something was done centuries ago, and apply them in the present context. That was how those laws that I have mentioned at the beginning of my speech were done.

(3) We should concentrate on laws that are easily acceptable by the public first. Choose those areas that can be clearly seen by the public to be more just or more beneficial to them than the civil law. An example is the common law principle of “caveat emptore”, which, to my mind, protects dishonest seller more than honest buyers. As I understand it, the Islamic principle insists equal honesty on the part of the seller and the buyer. There is even a duty on the part of the seller to disclose the defects in the goods offered for sale.

(4) Priority should be to infuse Islamic law principles into federal laws applicable to all, Muslims and non-Muslims, as has been done in the case of Islamic banking and takaful. “Mu’amalat” is a good starting point. If it can be shown to me more beneficial to them, the public, even the non-Muslims, will prefer their transactions to be governed by it. Why do you think that the non-Muslim businessmen go for Islamic banking? It is not because of “iman” or to avoid committing a sin. It is simply because it is more profitable to them: they do not have to pay interest, compound interest, penalty interest and interest upon judgment. So, the longer they delay the repayment, the more they profit. To them profit is “ma’aruf”, loss is “munkar”. It is as simple as that. In fact, we are the ones who should not be naïve and be taken for a ride. Normally, we are. We are so concerned with ideals and form that we do not see the loopholes.

Who is going to do it?

That is the real problem. Strictly speaking, “those who allege should prove.”

But, the problem is, those who know Islamic law, more often than not, do not know civil law. Those who know civil law, more often than not, do not know Islamic law. Pakistan faced that problem. See Islamization of Pakistani Law by Dr. Tanzil-Ul-Rahman (1978). I would add: more often than not, those know something of both have never practised law. Those who are most vocal and loud do nothing positive, they speak in general terms and condemn others.

If we want to have more, we have to produce more. Stop wasting time on rhetoric. The “shari’ah” experts, the civil law experts and practising lawyers should work together, in groups. Each should concentrate in one particular area. Identify the existing laws that are un-Islamic and come up with the proposed laws which they believe are Islamic.

That I think is the only way to do it.

Dato’ Abdul Hamid Bin Haji Mohamad
(Judge, Federal Court, Malaysia)

PERWIRA AFFIN BANK BHD v. LIM AH HEE

FEDERAL COURT, KUALA LUMPUR
STEVE SHIM, CJ (SABAH & SARAWAK); ABDUL HAMID MOHAMAD, FCJ; MOHD NOOR AHMAD, FCJ
CIVIL APPEAL NO: 03-3-2001 (W)
[2004] 2 CLJ 787
CIVIL PROCEDURE: Interest – Judgment debt – Whether recovery of interest wholly time-barred by s. 6(3) Limitation Act 1953 if execution instituted six years after judgment date – Construction of s. 6(3) – Whether interest recoverable up to six years before date of execution – Decision of Federal Court in United Malayan Banking Corporation Bhd v. Ernest Cheong Yong Yin

BANKRUPTCY: Interest – Commencement date for interest – Whether claim barred by s. 6(3) Limitation Act 1953 – Decision of Federal Court in United Malayan Banking Corporation Bhd v. Ernest Cheong Yong Yin

LIMITATION: Interest – Arrears – Whether claim barred by s. 6(3) Limitation Act 1953 – Decision of Federal Court in United Malayan Banking Corporation Bhd v. Ernest Cheong Yong Yin

CIVIL PROCEDURE: Execution – Writ of execution – Whether Bankruptcy proceeding a writ of execution – Rules of the High Court 1980, O. 46 r. 2

At the appeal to the High Court judge-in-chambers, the respondent orally raised two preliminary objections. The first was that the sum claimed in the bankruptcy notice was wrong as it included statute-barred interest and, secondly, the appellant had not obtained prior leave of court under O. 46 r. 2(1)(a) Rules of the High Court 1980 (‘RHC’) before instituting the bankruptcy proceedings. The second preliminary objection was later abandoned as the appellant did in fact obtain leave. The learned judge however dismissed the first preliminary objection. The respondent appealed to the Court of Appeal. The Court of Appeal allowed the appeal. The appellant then filed a notice of motion applying for leave to appeal to the Federal Court. The Federal Court granted leave to appeal on the following points: (a) whether the second limb of s. 6(3) Limitation Act 1953 (‘LA’) is relevant to bankruptcy proceedings; and (b) whether a bankruptcy notice is valid under s. 3(2)(ii) Bankruptcy Act 1967 if the judgment debtor does not dispute that the claim in the bankruptcy notice is excessive within seven days from the date of service.
Held (dismissing the appeal)
Per Abdul Hamid Mohamad FCJ delivering the judgment of the court:
[1] A bankruptcy proceeding is not “a writ of execution” within the meaning of O. 46 r. 2 RHC.
[2]A bankruptcy proceeding, by definition of the word “action” in s. 2 LA, is an action and it is caught by the provisions of s. 6(3) LA.
[3]Therefore, a bankruptcy proceeding is an “action upon a judgment” within the meaning of s. 6(3) LA. The limitation for bringing the action is 12 years but arrears of interest may only be claimed for six years.
[4]Section 6(3) LA should be read conjunctively; s. 6(3) allows an action upon judgment to be brought within 12 years but in such an action arrears of interest may only be claimed for a period of six years.
[5]Section 6(3) LA applies to bankruptcy proceedings; and while a bankruptcy proceeding may be brought within 12 years of the date of the judgment, arrears of interest may only be claimed for a period of six years from the date of judgment.
[6]In the instant case, the judgment was obtained on 23 October 1987. Following United Malayan Banking Corp Bhd v. Ernest Cheong Yong Yin [2002] 2 CLJ 413 FC, even though interest was calculated from 1 December 1985, it merged into the judgment debt and therefore the date the interest became due was the date of the judgment, not the earlier date. The period to be calculated was from the date of the judgment to the date of filing the bankruptcy notice.
[7]The bankruptcy notice was invalid as it contained arrears of interest outside the period of six years.
[8]As the merits of the second issue posed before the court was not considered by the High Court and the Court of Appeal, the court declined to answer the question on the grounds,inter alia : (a) that there were no judgments of the High Court and the Court of Appeal on the issue; (b) it would be unfair to the appellant that a point that was neither raised nor argued in the High Court, and not allowed to be raised by the Court of Appeal and therefore not argued before it, be argued for the first time in this court; (c) it would encourage parties to raise new issues as a case progresses; and (d) the objection was procedural in nature.
[Bahasa Malaysia Translation Of Headnotes
Semasa rayuan di hadapan hakim di dalam kamar di Mahkamah Tinggi, responden secara lisan telah membangkitkan dua bantahan awal. Pertamanya adalah, jumlah yang dituntut di dalam notis kebankrapan adalah salah kerana ia mengandungi faedah yang digalang masa, dan keduanya, perayu tidak mendapat kebenaran mahkamah dibawah A. 46 k. 2(1)(a) Kaedah-Kaedah Mahkamah Tinggi 1980 (‘KMT’) sebelum memulakan prosiding kebankrapan. Bantahan kedua kemudiannya diabaikan kerana perayu sememangnya telah mendapat kebenaran mahkamah. Yang arif hakim menolak bantahan awal yang pertama. Responden merayu ke Mahkamah Rayuan. Mahkamah Rayuan membenarkan rayuan tersebut. Perayu kemudiannya memfailkan satu notis usul memohon kebenaran untuk merayu ke Mahkamah Persekutuan. Mahkamah Persekutuan membenarkan rayuan mengenai dua isu berikut: (a) sama ada bahagian kedua s. 6(3) Akta Had Masa 1953 (‘AHM’) adalah relevan di dalam prosiding kebankrapan; dan (b) sama ada notis kebankrapan adalah sah di bawah s. 3(2)(ii) Akta Kebankrapan 1967 jika penghutang penghakiman tidak mempertikaikan tuntutan yang dibuat di dalam notis kebankrapan adalah keterlaluan di dalam tempoh tujuh hari dari tarikh serahan.
Diputuskan (menolak rayuan)
Oleh Abdul Hamid Mohamad HMP menyampaikan penghakiman mahkamah:
[1] Prosiding kebankrapan bukanlah satu “writ pelaksanaan” di dalam erti A. 46 k. 2 KMT.
[2]Sesuatu prosiding kebankrapan, mengikut definasi perkataan “tindakan” di dalam s. 2 AHM adalah satu tindakan dan ianya tertakluk kepada peruntukan s. 6(3) AHM.
[3]Oleh yang demikian, prosiding kebankrapan adalah satu “tindakan pada penghakiman” di dalam s. 6(3) AHM. Had masa untuk memulakan tindakan adalah 12 tahun tetapi tunggakan faedah hanya boleh dituntut untuk enam tahun.
[4]Seksyen 6(3) AHM patut dibaca bersama; s. 6(3) AHM membenarkan satu tindakan keatas penghakiman dibawa dalam masa 12 tahun tetapi tindakan untuk tunggakan faedah hanya boleh dituntut untuk tempoh masa enam tahun.
[5]Seksyen 6(3) AHM terpakai kepada prosiding kebankrapan dan prosiding kebankrapan boleh dibawa dalam tempoh 12 tahun dari tarikh penghakiman, tunggakan faedah hanya boleh dituntut untuk tempoh enam tahun dari tarikh penghakiman.
[6]Dalam kes semasa, penghakiman diperolehi pada 23 October 1987. Mengikut United Malayan Banking Corp Bhd v. Ernest Cheong Yong Yin [2002] 2 CLJ 413 FC, walaupun faedah dikira dari 1 Disember 1985, ianya bersatu dan menjadi hutang penghakiman dan oleh yang demikian tarikh faedah bermula adalah tarikh penghakiman, dan bukannya tarikh yang terdahulu. Tempoh untuk kiraan adalah dari tarikh penghakiman sehingga ke tarikh notis kebankrapan difailkan.
[7]Notis kebankrapan adalah tidak sah kerana ia mengandungi tunggakan faedah diluar tempoh enam tahun.
[8]Oleh kerana merit isu kedua yang dikemukakan di hadapan mahkamah ini tidak diputuskan oleh Mahkamah Tinggi dan Mahkamah Rayuan, mahkamah ini menolak untuk menjawab persoalan tersebut atas alasan-alasan, yang antara lainnya: (a) bahawa tiada keputusan Mahkamah Tinggi dan Mahkamah Rayuan mengenai isu tersebut; (b) ianya tidak adil kepada perayu jika perkara tersebut yang tidak dikemukakan dan didebatkan di Mahkamah Tinggi dan yang tidak dibenarkan untuk dibankitkan oleh Mahkamah Rayuan dan olehitu tidak didebatkan dihadapannya, didebatkan untuk pertama kali di mahkamah ini; (c) ianya menggalakan pihak-pihak untuk membangkitkan isu-isu baru bila kes telah kehadapan; dan (d) bantahan tersebut berbentuk prosedur.
Rayuan ditolak dengan kos.]
Reported by Izzaty Izzuddin

Case(s) referred to:
Lowsley v. Forbes [1998] 3 WLR 50 (refd)
Malaysia Soil Investigation Sdn Bhd v. Emko Holdings Sdn Bhd [1994] 1 CLJ 267 HC (refd)
Moscow Narodny Bank Ltd v. Ngan Ching Wen [2004] 2 CLJ 241 FC (foll)
United Malayan Banking Corp Bhd v. Ernest Cheong Yong Yin [2002] 2 CLJ 413 FC (foll)
WT Lamb & Sons v. Rider [1948] 2 KB 331 (refd)

Legislation referred to:
Limitation Act 1939 [UK], s. 2(4)
Limitation Act 1980 [UK], s. 24
Rules of Supreme Court [UK], O. 42 r. 23(a)
Counsel:
For the appellant – Porres Royan (Dahlia WM Lee); M/s Shook Lin & Bok
For the respondent – Karpal Singh; M/s Karpal Singh & Co

Case History:
Court Of Appeal : [2000] 3 CLJ 354
High Court : [1997] 4 CLJ 462

JUDGMENT
Abdul Hamid Mohamad FCJ:
On 23 October 1987, the appellant (judgment creditor) obtained a judgment against the respondent (judgment debtor) for the sum of RM2,963,054.86 with interest thereon at the rate of 16.5% per annum from 1 December 1985 until the date of realisation.
On 28 March 1996, the appellant took out a bankruptcy notice and served it on the respondent on 3 June 1996.
On 7 June 1996 the respondent served on the appellant an “Affidavit On Application To Set Aside Bankruptcy Notice” pursuant to r. 95 of the Bankruptcy Rules 1969 claiming that the respondent had a counterclaim against the appellant which the respondent could not set up in the action in which the judgment was obtained.
On 10 June 1996, the respondent served on the appellant a notice pursuant to s. 3(2)(ii) of the Bankruptcy Act 1967 alleging that the bankruptcy notice was incorrect and excessive in that the sale of the respondent’s shares and dividends on the shares had not been taken into account in the bankruptcy notice and that the appellant had not given a proper breakdown of the sales of the shares.
The respondent filed affidavits in reply in relation to both the r. 95 affidavit and the notice.
On 19 March 1997 the senior assistant registrar dismissed the respondent’s r. 95 affidavit and the notice and pursuant to r. 95(2) declared that the act of bankruptcy was committed on 19 March 1997.
The respondent appealed to the judge in chambers.
At the hearing of the appeal before the learned judge, the respondent, through a new solicitor orally raised two preliminary objections. The first was that the sum demanded in the bankruptcy notice was wrong as it included statute-barred interest and, secondly, that the appellant had not obtained prior leave of court under O. 46 r. 2(1)(a) of the Rules of the High Court (“RHC 1980”) before instituting bankruptcy proceedings. The second preliminary objection was later abandoned after the appellant produced the order granting the leave.
On 9 July 1997 (within six months of the act of bankruptcy) the appellant filed its creditor’s petition.
On 19 August 1997 the first preliminary objection was dismissed by the learned judge.
On 26 August 1997 the respondent filed an appeal to the Court of Appeal against the learned judge’s decision on 19 August 1997 dismissing the first preliminary objection. The Court of Appeal allowed the respondent’s appeal on 17 January 2000.
The appellant filed a notice of motion applying for leave to appeal to this court against the decision of the Court of Appeal on 17 January 2000. This court granted leave to appeal to the appellant on 17 September 2001 on the following questions:
(i) whether the second limb of s. 6(3) of the Limitation Act 1953 is relevant and applicable to bankruptcy proceedings; and
(ii) whether the impugned bankruptcy notice is valid under the provisions of s. 3(2)(ii) of the Bankruptcy Act 1967 if the judgment debtor does not dispute that the claim stated in the bankruptcy notice is excessive within seven days from the date of service of the bankruptcy notice. (my own translation).
First Question
On the first question, the learned judge held:
The matter before me relates to bankruptcy action taken by the judgment creditor. In my view, going by the meaning of “writ of execution” in Order 46 rule 1 of the Rules of the High Court 1980, bankruptcy actions do not come within the meaning of writ of execution and there may be no need even to get leave under Order 46 r. 2 to proceed with the bankruptcy actions. The issue of a bankruptcy notice is not a form of execution (see Re A Bankruptcy Notice [1988] 1 QB At page 387.) (Page 764 of the Supreme Court Practice 1997, vol.1).
As seems clear to me that “action” under section 6(3) of the Act does not cover execution proceedings and what more the bankruptcy actions, it follows therefore that the bankruptcy actions do not come within the ambit of section 6(3) of the Act and is therefore not applicable.
As section 6(3) of the Act refers to “actions on judgments” it would seem only sensible to interpret both limbs as applying in the same way, that is, confining to actions on judgments and excluding execution proceedings including bankruptcy actions. In my view the bankruptcy actions just like execution proceedings is the taking of a further step in an existing action rather than the commencement of a new action. In other words the bankruptcy actions do not operate on the concept of the cause of actions as is intended by the provisions of the Act.
In the alternative, after referring to Malaysia Soil Investigation Sdn Bhd v. Emko Holdings Sdn Bhd [1994] 1 CLJ 267 (High Court), the learned judge held:
Similarly here, the judgment debt became due on 23 October 1987 and the interest became due from 1 December 1985, a period of roughly one year and eleven months and it was therefore well within the limitation period. It follows that the Act does not prohibit the payment of arrears of interest due on a judgment debt beyond the six years after they become due so long as the act of recovery is made before the expiry of the six years period.
I agree with the learned Judge’s interpretation of section 6(3) of the Act and would in the circumstances rule that interest claimed is not statute barred and therefore the bankruptcy notice is not void ab initio as claimed by the counsel for the judgment debtor.
Before going any further, perhaps I should summarise the ruling of the learned trial judge:
(1) bankruptcy actions do not come within the meaning of “writ of execution” under O. 46 r. 1 (RHC 1980) and there is no need to obtain leave pursuant to O. 46 r. 2 RHC 1980 to proceed with bankruptcy actions.
(2) “actions” under s. 6(3) of the Limitation Act 1953 does not cover execution proceedings and bankruptcy actions. Therefore, bankruptcy actions do not fall within the ambit of s. 6(3) of the Limitation Act 1953 and therefore the provision of that section does not apply to bankruptcy actions.
(3) Both limbs of s. 6(3) of the Limitation Act 1953 apply in the same way, that is, confining to actions on judgments and excluding execution proceedings including bankruptcy actions.
(4) In the alternative, s. 6(3) of the Limitation Act 1953 does not prohibit the payment of arrears of interest on a judgment debt beyond the six years after they became due so long as the act of recovery is made before the expiry of the six year period.
The Court of Appeal allowed the appeal. The Court of Appeal held:
In the present case we are of the opinion that counsel for the appellant was right when he submitted that the decision of Lowsley affected the decision of W.T. Lamb in that though there is no bar in the execution of a judgment after six years, the recovery of interest is limited to six years only. In view of this the decision of the learned Judge relying on the decision of W.T. Lamb cannot be upheld.
From the authorities it is clear that the local courts had followed the decision of Lowsley’s case in respect of limitation to interest. In Wangsini Sdn. Bhd. v. Grand United Holdings Bhd. [1997] 5 CLJ 664, it was held that section 6(3) of the Limitation Act, 1953, will have a telling effect on the statutory notice of demand as the petitioner is only legally entitled to claim interest on the judgment in default obtained on January 19, 1990 for six years from the date on which the interest became due. It is clear from this authority that a bankruptcy notice cannot claim interest exceeding six years on a judgment obtained. It is also clear that a claim for interest exceeding six years will nullify the bankruptcy notice.

The learned Judge made his ruling only in respect of the second limb whereby he decided that there is no limitation to interest claimed because of the decision in W.T. Lamb. Since W.T. Lamb had been overruled by Lowsley ‘s case under the law as it is now, a judgment creditor can only claim interest on a judgment sum not exceeding six years from the date it is due. In the present case the respondent is only entitled to claim interest six years from the date of judgment.
The present appeal is only in respect of the ruling made by the learned Judge on limitation of interest to be claimed. We are not sure whether the bankruptcy notice included a claim of interest exceeding the limitation period. If it is so then the bankruptcy notice is void.
Lest I get carried away, I should remind myself that I am only dealing with the issue whether the second limb of the Limitation Act 1953 is applicable to bankruptcy proceedings. The High Court in this case held it does not and the Court of Appeal held it does. The answer really lies in the interpretation of s. 6(3) itself.
Rather than merely reproducing s. 6(3) what more only the so-called “second limb”, I think we should look at the whole scheme of the Act.
Section 2 (Interpretation) defines “action” as follows:
“action” includes a suit or any other proceeding in a court of law; (emphasis added).
Almost all the sections that follow talk about actions of all types imaginable. Section 6 itself contains a heading “Actions of Contract and Tort and Certain Other Actions” and provides:
6. (1) Save as hereinafter provided the following actions shall not be brought after the expiration of six years from the date on which the cause of action accrued, that is to say:
(a) actions founded on a contract or on tort;
(b) actions to enforce a recognisance;
(c) actions to enforce an award;
(d) actions to recover any sum recoverable by virtue of any written law other than a penalty or forfeiture or of a sum by way of penalty or forfeiture.
(2) An action for an account shall not be brought in respect of any matter which arose more than six years before the commencement of the action.
(3) An action upon any judgment shall not be brought after the expiration of twelve years from the date on which the judgment became enforceable and no arrears of interest in respect of any judgment debt shall be recovered after the expiration of six years from the date on which the interest became due.
(4) An action to recover any penalty or forfeiture or sum by way of penalty or forfeiture recoverable by virtue of any written law shall not be brought after the expiration of one year from the date on which the cause of action accrued:
Provided that for the purpose of this subsection the expression “penalty” shall not include a fine to which a person is liable on conviction for a criminal offence.
(5) Nothing in this section shall apply to:
(a) any cause of action within the Admiralty jurisdiction of the High Court which is enforceable in rem other than an action to recover the wages of seamen, or
(b) any action to recover money secured by any mortgage of or charge on land or personal property.
(6) Subject to the provisions of sections 22 and 32 of this Act the provisions of this section shall apply (if necessary by analogy) to all claims for specific performance of a contract or for an injunction or for other equitable relief whether the same be founded upon any contract or tort or upon any trust or other ground in equity.
It should be noted that in subsection (1) of s. 6 where actions on contract, tort, actions to enforce recognisance, actions to enforce an award, actions for an account which are limited to six years, the provisions are silent regarding limitation period for claiming of interest. However, in subsection (3) which concerns “an action upon any judgment” and for which the limitation period is twelve years, the claim for interest in respect of such judgment debt is limited to six years. In other words, in all cases the claim for arrears of interest is six years. In cases other than an action upon a judgment, no specific provision need be made as the action itself must be brought within six years.
For the same reason, in s. 20, which concerns actions to recover rent and for which the limitation period is six years, there is no mention about the limitation period for claiming interest.
Section 21 concerns actions to recover any principle sum of money secured by a mortgage or charge. The limitation period is twelve years. This is followed by subsection (5) that limits an action to recover arrears of interest payable in respect of any sum of money secured by a mortgage or other charge to six years. In other words in s. 21 we have a somewhat similar situation as in s. 6(3).
All these sections talk about “actions”, all types of “actions” as specified in the respective sections and the word “action” itself is defined in s. 2 to include “a suit or any other proceeding in a court of law.”
In my humble opinion, if we stick to the definition of the word “action” as provided in the Act, the answer is easier to find and is clearer. All that we need to answer is first, whether a bankruptcy proceeding is “a suit” or a “proceeding in court” or neither. Unfortunately, confusion has arisen due to reliance on judgments, especially from other jurisdictions, where passages from those judgments are quoted without paying particular attention to the facts of the case and the law applicable in those cases.
Be that as it may, let us look at the cases.
I shall begin with the case of W.T. Lamb & Sons v. Rider [1948] 2 KB 331 (CA).
This is not a bankruptcy case. It is a summons-in-chambers in the main writ action in which judgment had been obtained but the judgment sum had not been satisfied. In the summons-in-chambers, the plaintiff applied for leave to proceed to execution to enforce the judgment notwithstanding that six years had elapsed since the judgment was entered. The application was made pursuant to RSC O. 42 r. 23(a) (England) which provides that where six years have elapsed since the date of the judgment, the party alleging himself to be entitled to execution may apply to court or a judge for leave to levy execution. The argument put forward was that RSC O. 42 r. 23(a) was invalid as it was in conflict with s. 2(4) of the (English) Limitation Act 1939.
It should be noted that first, the provisions of RSC O. 42 r. 23(a) is similar to the provisions of our O. 46 r. 2(1) RHC 1980.
The Court of Appeal (England) rejected that argument. The court held that RSC O. 42 r. 23(a) was not rendered invalid by the provisions of s. 2(4) of the (English) Limitation Act 1939. The court drew a distinction between “execution” in RSC O. 42 r. 23(a) and the word “action” in s. 2(4) of the Limitation Act 1939. The court held that O. 42 r. 23(a) dealt solely with execution which is essentially a matter of procedure for the purpose of enforcing a judgment when obtained. On the other hand, s. 2(4) of the Limitation Act 1939 is concerned with the right to sue on a judgment. A plaintiff who has obtained a judgment more than six years is not entitled to issue execution on it except with the leave of the court or a judge as provided by O. 42 r. 23(a) (of the English Rules).
It is this last sentence above that the case is an authority for. Furthermore, if we bear in mind that the words used in our O. 46 r. 2 RHC 1980 and in the English Rules are “A writ of execution to enforce a judgment…”, clearly a bankruptcy notice or a bankruptcy petition cannot be “a writ of execution.” So, in my view, our courts have been correct in holding the view that no leave of court is necessary to issue a bankruptcy notice after six years as required by O. 46 r. 2 RHC 1980. But, that does not answer the question posed to this court especially in view of the words “or any other proceeding in court”. I shall come back to this later.
We now come to Lowsley v. Forbes [1998] 3 WLR 50 (HL). First, it must be noted that, by the time Lowsley (supra) was decided the provisions of s. 2(4) of the (English) Limitation Act 1939 had been replaced by s. 24 of the (English) Limitation Act 1980, which provides:
24 (1) An action shall not be brought upon any judgment after the expiration of six years from the date on which the judgment became enforceable.
(2) No arrears of interest in respect of any judgment debt shall be recovered after the expiration of six years from the date on which the interest became due.
Note that besides splitting the old subsection 2(4) of the 1939 Act into two subsections, the word “twelve” in the first limb of the 1939 Act is substituted with the word “six”.
Lowsley (supra)too was not a bankruptcy proceeding. It was an application to enforce a judgment obtained 1 1/2 years earlier by way charging an garnishee orders. The argument was that execution of the judgment was time barred by s. 24(1) of the (English) Limitation Act 1980.
The first issue, as stated by Lord Lloyd of Berwick was “whether s. 24(1) barsexecution of a judgment after six years, or whether it only bars the bringing of a fresh action on the judgment.” (emphasis added).
In his judgment, Lord Lloyd of Berwick, referring to the provisions of ss. 2(4) of the (English) Limitation Act 1939 held:
Thus the position after the Limitation Act 1939 came into force was that a judgment debt became statute barred after 12 years.
His Lordship agreed with W.T. Lamb (supra) that RSC O. 42 r. 23(a) was not ultra vires.
On the first question mentioned above, his Lordship held:
“Action” in section 24(1) means a fresh action, and does not include proceedings by way of execution.
In this respect, the head note in [1998] 3 All ER 897 is preferable because it is very clear. This is what it ways:
Held – On its true construction, the word ‘action’ in s. 24(1) of the 1980 Act meant a fresh action, and did not include proceedings by way of execution. Accordingly, the section did not bar execution of a judgment after six years, but only barred the bringing of a fresh action on the judgment.
However, on the second question that involves the interpretation of sub-section (2) of s. 24 of the (English) Limitation Act 1980, the House of Lords held:
However, there was no reason why the words ‘no arrears of interest… shall be recovered’ in s. 24(2) should not be given their ordinary meaning so as to bar execution after six years in respect of all judgments, since ‘recovered’ had a broad meaning and was not confined to recovery by fresh action. It followed that the judge had been correct to reduce the interest to six years, and to that extent the appeal would be allowed.
So, the net effects of that judgment are:
(1) Action upon judgment must be brought within six years.
(2) Execution of judgment is not subject to a limitation period. However, leave must be obtained if the execution is to be done after the period of six years;
(3) However, even if it is by way of execution of a judgment, interest may only be recovered for a period of six years.
We shall now come to the judgment of this court in United Malayan Banking Corp Bhd v. Ernest Cheong Yong Yin [2002] 2 CLJ 413. This is a bankruptcy case. In that case, the appellant obtained a summary judgment on 15 October 1987 with interest from 1 April 1986 until full realisation. On 24 January 1996 (eight years and three months later) the appellant filed a bankruptcy notice. However, the claim for interest was only for six years from the date of the judgment. This court held:
(1) When an act of recovery is made, future interest could not be said to be in arrears and, therefore, could not be claimed (see p 397 D).
(2) The second limb of s. 6(3) of the Act provided that an action to recover arrears of interest must be brought within six years of the judgment date and because of the word ‘arrears’, it could not denote interest which was still not due. It must, therefore, mean arrears of interest at the time of recovery and could not include future interest even if the amount due had not been paid (see p 397D-E; Lowsley & Anor v. Forbes [1998] 3 All ER 897 followed.
(3) Therefore, a person filing an action for recovery of arrears of interest on the last day of the six year period from the judgment date would only be entitled to that amount and nothing more. If he file it on the first day after the six year period, his action would be barred by limitation, arrears of interest included (see p 397F)
(4) In the instant case, although the amount of arrears of interest claimed was only for six years from the judgment date, the bankruptcy notice had been filed long after the limitation period of six years. Accordingly, the bankruptcy notice was rendered invalid. As for the prejudgment interest, despite the Court of Appeal’s finding on this point, the court held that that was in order as it was merged with the principal amount from the date of the breach, and which was the standard stipulation in all contracts, to become the judgment debt.
(5) In view of the wording of the second limb of s. 6(3) of the Act, the act of recovery of the arrears of interest in respect of the judgment debt must be made within six years of the judgment date and only up to the date of the act of recovery. There was no formal defect or any irregularity in the instant case and s. 131 of the Bankruptcy Act 1967 was certainly not applicable. The only error of the appellant here was to file the bankruptcy notice out of time.
(6) The court was aware of O. 42 r. 12 of the Rules of the High Court 1980 (‘the RHC’), which provided that every judgment debt shall carry an interest from the date of judgment until the judgment was satisfied. These rules were made by virtue of s. 17 of the Courts of Judicature Act 1964 (‘the CJA’). The words ‘until the judgment is satisfied’ in O. 42 r. 12 appear to be in conflict with the second limb of s. 6(3) of the Act. However, between subsidiary legislation made under the CJA, namely the RHC, if it conflicted with s. 6(3) of the Act, which was a parent law, then the Act prevailed in view of s. 23 of the Interpretation Acts 1948 and 1967.
Learned counsel for the appellant submitted that this court in that case did not consider the question now posed to this court and under present discussion. He submitted:
In the Ernest Cheong case, after holding that an action for recovery of arrears of interest after 6 years from the date of judgment is barred by the 2nd limb of s. 6(3) of the Limitation Act, the Federal Court did not apply its mind as to whether bankruptcy proceedings are within the ambit of the said provision of the Limitation Act (i.e., the Court did not consider whether bankruptcy proceedings is an “action for recovery of arrears of interest”). The court had applied the said provision as a matter of course to determine the validity of the Bankruptcy Notice under consideration. The authority is therefore of no relevance here.
[It must be pointed out that leave to appeal in the instant appeal was given prior to the decision of this court in Ernest Cheong – supra ].
Whereas I would not agree that that case (Ernest Cheong – supra) is of no relevance to the instant appeal, I agree that the issue now posed to this court was not discussed but rather it was assumed that s. 6(3) applies. So, the question is still open for this court to decide.
Recently, on 1 April 2004, this court delivered its decision in Moscow Narodny Bank Ltd v. Ngan Ching Wen [2004] 2 CLJ 241 FC. The issue posed involving s. 6(3) of the Limitation Act 1953 was whether the date when interest became due under a judgment was to be taken as the date of judgment or the date of commencement of interest as stipulated in the judgment.
This question had in fact been answered in Ernest Cheong – supra and this court followed its earlier decision in Ernest Cheong – supra. Like in Ernest Cheong – supra, the court also did not consider the issue now posed to this court in the instant appeal.
Coming back to the issue now before this court. In my view, the answer lies in the answers to the following questions:
1. Whether a bankruptcy proceeding is an “action” within the meaning of s. 6(3) of the Limitation Act 1953 as defined in s. 2 of the same Act.
2. Whether the “two limbs” of ss. 6(3) should be read disjunctively or conjuntively.
We have seen from the decided cases and I agree that a bankruptcy proceeding is not “a writ of execution” within the meaning of O. 46 r. 2 RHC 1980. But, that does not necessarily mean that it is therefore “an action” within the meaning of s. 6(3). We still have to consider the meaning of “an action upon any judgment” in the light of the definition given in s. 2 of the Limitation Act 1953 that includes “a suit or any other proceeding”.
Of course, by merely looking at the word “action” in s. 6(3) it appears that the word “action” does not include a bankruptcy proceeding. It is also clearly not a “suit”, one of the words used in the definition of the word “action” in s. 2. But, is it not a “proceeding in a court of law” “upon any judgment” (I am reading the provisions in ss. 2 and 6(3) together).
I do not think that it can be argued that a bankruptcy proceeding is not proceeding in court. Neither can it be argued that it is not based upon a judgment. There has to be a judgment before a bankruptcy proceeding can be commenced. Then going by the definition of “action” is s. 2, it is an “action” and an action upon a judgment.
A question then may be asked: on the same reasoning, is an “execution” not a “proceeding in court”? Of course it is a proceeding in court but, I think, the distinction lies in the fact that execution is the continuation of the existing proceeding to enforce the judgment provided by the same rules of court, the RHC 1980. On the other hand, bankruptcy proceedings are provided by separate law and rules, the focus being the judgment debtor, not the debt and the object is to appoint a receiver in the person of the official assignee over the assets of the debtor and to convert the status of the debtor into a bankrupt with certain disqualification and disabilities, the most important being the loss of control over his properties to the official assignee. The fact that it is based on a judgment does not necessarily make it a continuation of the existing proceeding. Section 6(3) itself is about “action upon a judgment”. Though the existence or non-existence of a cause of action may or may not be a factor to be considered, if we say that for there to be action there must be a cause of action, then the existence of a judgment and the failure to satisfy the judgment debt itself is a cause of action. In any event, it is a remedy provided by law, whether it is to be considered as a cause of action or not, if relevant. Furthermore, a bankruptcy proceeding is by way of petition, just like divorce, winding-up or election, to name a few. Thus a bankruptcy proceeding bears the characteristics of a fresh proceeding unlike an execution proceeding.
On these grounds, I am inclined to the view that a bankruptcy proceeding, by definition of the word “action” in s. 2 of the Act is an “action” and it is caught by the provisions of s. 6(3).
The next question then is whether the so-called first and second limbs of s. 6(3) should be read conjunctively or disjunctively.
It may be argued that Lowsley (supra) is an authority for reading the two subsections (in the English provision) disjunctively on the ground that, even though the House of Lords held that subsection (1) does not apply to executions, yet, even in execution proceedings the claim for interest is limited to six years. But, what is important to note is that the provision of s. 24 of the (English) Limitation Act 1980 under consideration in that case is differently arranged from the Malaysian provision in s. 6(3). The provision in the (English) 1980 Act is split into two subsections. On the other hand the Malaysian provision is a one-sentence subsection, like the provision in the (English) 1939 Act which was considered in W.T. Lamb (supra). Could it be that the provision was redrafted as a consequence of the decision in W.T. Lamb (supra) ?
In any event, as I have said, s. 6(3) is but a one-sentence subsection. It is really quite misleading to refer to it as “first limb” and “second limb” giving the impression that they are to be read separately. Whatever the view of the House of Lords in England, that view is based on a differently arranged provision: there are two separate subsections in the (English) 1980 Act as against a one sentence subsection in our law.
Furthermore, we should look at the scheme of our Limitation Act 1953. Where, as has been pointed out, the limitation of action is six years, the provision is silent on the limitation period for claiming arrears of interest. The reason is clear: it is not necessary because it is automatically limited to six years. Where the limitation of action is twelve years as in s. 21 (and s. 6(3)), the limitation period for claiming arrears of interest is six years. (See Ernest Cheong (supra) for meaning of “arrears of interest”). So, the limitation period for claiming arrears of interest is consistent ie, six years in all cases. The exception is execution proceedings. But, first of all, it is “execution” not an “action”. Secondly, if execution is to be done after six years leave of court must be obtained. That, perhaps, is the reason for the requirement of leave, leave may not be granted at all or it may be granted with condition attached, eg, the arrears of interest may be limited to six years also. On these grounds I am of the view that the whole subsection should be read together and not to be split to first and second limb and to read them disjunctively.
In conclusion, it is my considered opinion that a bankruptcy proceeding is an “action upon (a) judgment” within the meaning of s. 6(3). The limitation for bringing the action is twelve years but the arrears of interest may only be claimed for six years.
I am aware that this conclusion may be inconsistent with Ernest Cheong (supra) in one aspect ie, where Abdul Malek Ahmad FCJ, delivering the judgment of the court said:
In the instant case, although the amount of arrears of interest claimed is only for six years from the judgment date, the bankruptcy notice had been file on 24 January 1996, long after the limitation period of six years which expired on 14 October 1993. Accordingly, the bankruptcy notice is rendered invalid. As for the prejudgment interest, despite the Court of Appeal’s finding on this point, we hold that that is in order as it is merged with the principal amount from the date of the breach, and which is the standard stipulation in all contracts, to become the judgment debt.
To answer the question posed, we would recapitulate by saying that in view of the wording of the second limb of s. 6(3) of the Act, the act of recovery of the arrears of interest in respect of the judgment debt must be made within six years of the judgment date and only up to the date of the act of recovery. In our view, there is no formal defect or any irregularity in the instant case and s. 131 of the Bankruptcy Act is certainly not applicable. The only error of the appellant here was to file the bankruptcy notice out of time.
With greatest respect, as I have held that the whole of s. 6(3) should be read conjunctively, s. 6(3) allows an action upon judgment to be brought within twelve years but in such an action arrears of interest may only be claimed for a period of six years. The position is somewhat similar to s. 21 where an action to recover the principal sum of money secured by a mortgage may be brought within twelve years but an action to recover arrears of interest payable in respect of the same is limited to six years. It is true that the provisions in s. 21 are to be found in two different subsections but the principle is the same. The fact that the words “action” is not repeated because the so-called second limb is part of the same sentence constituting the subsection which begins with the words “An action”. The whole subsection is about an action upon a judgment.
In the circumstances I would answer the first question posed to this court in the affirmative ie, s. 6(3) applies to bankruptcy proceedings and while a bankruptcy proceeding may be brought within twelve years of the date of judgment, arrears of interest may only be claimed for a period of six years from the date of the judgment.
In this case, judgment was obtained on 23 October 1987. Even though interest was calculated from 1 December 1985, following Ernest Cheong (supra) it merges into the judgment debt and therefore the date the interest became due, is the date of the judgment, not the earlier date. Bankruptcy notice was filed on 28 March 1996, eight years and five months from the date of judgment which is within the twelve year period. So the filing of the bankruptcy notice is not out of time.
What about the interest claimed?
I have reproduced the relevant part of the learned judge’s judgment earlier.
A few things need be said about this part of the judgment. First, the learned judge took the date from which the interest was calculated (1 December 1985) and not the date of judgment (23 October 1987) as the date the interest became due. In view of the judgment of this court in Ernest Cheong (supra) which was followed by this court in Moscow Narodny Bank Ltd. (supra), with respect, that is not correct. Those cases held, and I agree, that regarding interest before judgment, the date the interest became due is the date of judgment. The interest merged with the judgment sum.
Secondly, the learned judge calculated the period of limitation from the date the interest was calculated in the judgment (1 December 1985) to the date of judgment (23 October 1987). In view of the two judgments of this court just mentioned, with respect, that too is not correct. As decided in Ernest Cheong (supra), the period is to be calculated from the date of judgment to the date of filing the bankruptcy notice (eight years and five months after date of judgment.) As I have held, contrary to Ernest Cheong (supra), that s. 6(3) allows it to be filed within a period of twelve years, so, the filing of the bankruptcy notice was within the limitation period. But, what about the arrears of interest claimed? Again, with respect, I am of the view that the learned judge was wrong when he said that the Act does not prohibit the claim for arrears of interest beyond six years. Both in Ernest Cheong (supra) and Moscow Narodny Bank Bhd (supra) it was held and it is also my view (even though for different reasons) that in a bankruptcy proceeding arrears of interest may only be claimed for a period of six years from the date of judgment.
The Court of Appeal in this appeal said:
We are not sure whether the bankruptcy notice included a claim of interest exceeding the limitation period. It is so then the bankruptcy notice is void.
Whether interest was claimed in excess of six years or not can be ascertained from the particulars provided in the bankruptcy notice:
PARTICULARS OF CLAIM
As per Judgment dated 23rd day of October 1987
1. Judgment sum RM2,963.054.86
2. Interest at the rate of 16.5%
per annum from 1.2.1986 to
28.3.1996 (3,771 days) RM5,051,115.56
RM8,014,170.42
The date of judgment is 23 October 1987. Interest may only be claimed for a period of six years from the date of judgment, ie, until and including 22 October 1993. But the claim was made until 28 March 1996 (the date the bankruptcy notice was filed) which is clearly more that six years. So, the arrears of interest claimed contains arrears of interest outside the period of six years allowed ie, two years and five months more than allowed. That, following Ernest Cheong (supra) renders the bankruptcy notice invalid.
Second Question
The issue in the second question was never raised in the High Court. Thus, understandably, the learned judge did not deal with it.
In the Court of Appeal, from the judgment, it appears that learned counsel for the appellant raised an objection “on the way” the respondent raised the issue on interest (the second issue in the High Court and the Court of Appeal and the first question in this court). Her objection was on the ground that no notice was given within seven days of service of the bankruptcy notice as required by s. 3(2) proviso (ii) of the Bankruptcy Act 1967. The issue regarding interest (first question in this court) was only raised as a preliminary objection about eleven months after the service of the bankruptcy notice. The Court of Appeal, in its judgment states that from the record it was clear that learned counsel for the appellant did not object to the issue on interest being raised before the learned trial judge. The learned judge went on to hear the arguments and made his ruling. The Court of Appeal held that it was too late for the appellant to raise the objection before it. The Court of Appeal went on to say that it was a point of law which in its opinion could be raised at any time. And, the whole judgment of the Court of Appeal is on the issue of interest just like judgment of the High Court.
This court on 17 September 2001 granted leave not only on the issue of interest (the first question here) but also on the second question regarding the failure to give notice under s. 3(2) proviso (ii). This becomes the second question now.
I must admit that, I am in a dilemma. On the one hand, the issue was not raised in and therefore not considered by the High Court, though attempted to be raised by way of a preliminary objection in the Court of Appeal it was dismissed by the Court of Appeal as being too late to do so. The merit of the issue was not considered both by the High Court and the Court of Appeal. On the other hand, leave was granted by this court on that issue.
Should we answer the question? In fact the more pertinent question is whether should leave have been granted at all? I should not and I do not question the wisdom of this court in granting leave on the second question. However, as Abdul Malek Ahmad FCJ has very openly and honestly pointed out in Moscow Narodny Bank Ltd (supra) that, in that case, where he himself was a member of the panel that granted leave, “upon full analysis at the hearing” he realised that may be the question should not have been allowed at all. That is why sometimes this court, after hearing the appeal, declines to answer certain questions.
In this present appeal, personally speaking, I am very reluctant to answer the question. First, we do not have the advantage of having the judgments of the High Court and the Court of Appeal on the issue.
Secondly, it is unfair to the appellant that a point that was neither raised nor argued in the High Court and not allowed to be raised by the Court of Appeal and therefore not argued before it be argued for the first time in this court.
Thirdly, it will encourage parties to raise new issues as a case progresses, especially when a new counsel comes into picture.
Fourthly, not only there was no objection raised on that ground in the High Court, but the preliminary objection by the respondent regarding interest was argued in full and that, in fact, was the only issue argued before the High Court and decided by the learned judge and that also was the only issue decided upon by the Court of Appeal.
Fifthly, the objection regarding the failure to give notice is procedural in nature, compared to the objection regarding interest by the respondent, which actually involves interest that cannot be lawfully claimed as provided by law. (I am not saying that failure to give notice under s. 3(2) proviso (ii) of the Bankruptcy Act 1967 does not invalidate the bankruptcy notice in all cases. All I say is that the issue must properly taken at the right time.)
Sixthly, if I may venture a bit into the law without actually deciding it, s. 3(2) of the Bankruptcy Act 1967 talks about “the amount due exceeds the amount actually due”, which may be due to wrong calculation or failure to take into account amounts paid subsequent to the judgment. In this case it is the claim for arrears of interest which the law does not permit. No wonder the Court of Appeal says that “this is a point of law which in our opinion could be raised at any time.” (The court was referring to the respondent’s objection on the inclusion of arrears of interest exceeding six years.)
In the circumstances, I would decline from answering the second question.
I would dismiss the appeal with costs and order that the deposit be paid to the respondent on account of taxed costs.
My Chief Judge (Sabah & Sarawak) and my brother Mohd. Noor Ahmad FCJ had read this judgment in draft and had agreed with it.

KARUNAIRAJAH RASIAH v. PUNITHAMBIGAI PONIAH

KARUNAIRAJAH RASIAH v. PUNITHAMBIGAI PONIAH
FEDERAL COURT, KUALA LUMPUR
ABDUL HAMID MOHAMAD FCJ; MOHD NOOR AHMAD FCJ; PAJAN SINGH GILL FCJ
[CIVIL APPEAL NO: 02-12-2003-B]
9 APRIL 2004
[2004] 2 CLJ 321
FAMILY LAW: Children – Maintenance – Parent’s legal duty to maintain child over 18 years of age – Whether duty extends until child completes tertiary education – Involuntary financial dependence for the purpose of pursuing tertiary education – Whether a mental or physical disability for duty to arise – Ching Seng Woah v. Lim Shook Lin (distinguished) – Law Reform (Marriage and Divorce) Act 1976, ss. 52, 92, 93, 95

Pursuant to a High Court order made in 1997, the appellant husband paid for maintenance in respect of his three daughters. He stopped paying maintenance for his eldest daughter when she attained the age of 18. It was not disputed that s. 95 of the Law Reform (Marriage and Divorce) Act 1976 (‘the 1976 Act’) entitled him to do so unless the exception applied, namely, where the child had a physical or mental disability. The respondent wife applied to the High Court for an order to compel the appellant to continue the said payments, and if necessary for the other two children as well until they completed their tertiary education. The High Court relied on the case of Ching Seng Woah v. Lim Shook Lin wherein the husband was ordered to pay child maintenance in respect of his two children until their tertiary first degree. The learned judge held that the eldest daughter in the present case was suffering from an involuntary financial dependence constituting a physical or mental disability within the exception provided by s. 95 of the 1976 Act. Accordingly, the respondent’s application was granted. On appeal, the Court of Appeal affirmed the decision of the High Court. The appellant now appealed to this court. The sole issue was whether involuntary financial dependence was a physical or mental disability within the exception provided by s. 95 of Act 1976.
Held:
Per Abdul Hamid Mohamad FCJ
[1] In the Court of Appeal case of Ching Seng Woah v. Lim Shook Lin, the husband agreed in his evidence in chief to pay maintenance to his daughters until they received their first degree. The court held that a person could not be permitted to reprobate what he had approbated. That was the ratio of the case. Anything more said about s. 95 of the 1976 Act was mere obiter.
[2] The word “disability” in s. 95 of the 1976 Act covers only “physical” and “mental” disability. It cannot cover financial dependence. There is no legal basis for interpreting the exceptions in s. 95 to include financial dependence for the purpose of pursuing tertiary education after the child attains the age of 18. The only basis for such an interpretation that goes against the clear words of the law is on a moral basis. However, moral grounds can never override clear provisions of the law in deciding a case. The function of the judge is to apply the law, whatever his personal view about the law may be.
[3] The Islamic Family Law (Federal Territories) Act 1984 is more advanced than its civil counterpart. Section 79 thereof specifically provides that the court is empowered to make a maintenance order beyond the child’s age of 18 “to cover such further period as it thinks reasonable, to enable the child to pursue further or higher education or training”. Such words cannot be interpreted into the existing provisions of s. 95 of the 1976 Act. There has to be a specific provision to that effect which is a matter for Parliament to address. This case had to be decided according to the law as it now stood.
[Bahasa Malaysia Translation Of Headnotes
Ekoran satu perintah Mahkamah Tinggi yang dibuat pada tahun 1997, perayu suami telah membayar nafkah bagi tiga orang anak perempuannya. Beliau berhenti membayar nafkah bagi anak sulungnya apabila ia mencapai umur 18 tahun. Tidak dinafikan bahawa s. 95 Akta Membaharui Undang-Undang (Perkahwinan dan Perceraian) 1976 (‘Akta 1976′) membenarkan pemberhentian bayaran nafkah tersebut kecuali jika pengecualian, iaitu di mana kanak-kanak berkenaan mengalami kecacatan fizikal ataupun mental, terpakai. Responden isteri memohon kepada Mahkamah Tinggi bagi perintah untuk memaksa perayu meneruskan pembayaran nafkah yang diberhentikan, dan jika perlu untuk kedua- dua anak yang lain juga sehingga mereka menamati pelajaran tinggi mereka. Mahkamah Tinggi bergantung kepada kes Ching Seng Woah lwn. Lim Shook Lin di mana suami diperintah membayar nafkah kedua-dua anaknya sehingga ke tahap ijazah pertama mereka. Yang arif hakim merumuskan bahawa anak sulung dalam kes semasa menanggung masaalah kebergantungan kewangan di luar kawalan, yang mana ia merupakan suatu kecacatan fizikal atau mental dalam erti kata pengecualian s. 95 Akta 1976. Permohonan responden, dengan itu, telah dibenarkan. Ketika rayuan, Mahkamah Rayuan telah mengesahkan keputusan Mahkamah Tinggi. Perayu merayu lagi dan isu yang berbangkit adalah sama ada kebergantungan kewangan di luar kawalan merupakan suatu kecacatan fizikal atau mental yang dirangkumi oleh pengecualian s. 95 Akta 1976.
Diputuskan:
Oleh Abdul Hamid Mohamad HMP
[1] Dalam kes Mahkamah Rayuan Ching Seng Woah lwn. Lim Shook Lin, suami bersetuju dalam keterangan utamanya untuk membayar nafkah kepada anak-anaknya sehingga mereka menerima ijazah pertama mereka. Mahkamah memutuskan bahawa seorang tidak boleh menarik balik apa yang telah dijanjikannya. Itulah ratio kes tersebut. Apa sahaja yang dikatakan selain darinya berkenaan s. 95 Akta 1976 adalah obiter.
[2] Perkataan “kecacatan” dalam s. 95 Akta 1976 hanya meliputi kecacatan “fizikal” atau “mental”. Ia tidak boleh merangkumi kebergantungan kewangan. Tidak ada asas undang-undang untuk mentafsir pengecualian-pengecualian di dalam s. 95 sebagai termasuk kebergantungan kewangan bagi maksud melanjutkan pelajaran ke peringkat ijazah selepas kanak-kanak mencapai umur 18 tahun. Satu-satunya asas bagi pentafsiran sedemikian yang bertentangan dengan perkataan jelas undang-undang adalah asas moral. Namun, dalam memutuskan sesuatu kes, alasan moral tidak mungkin mengatasi peruntukan jelas undang-undang. Fungsi hakim adalah untuk melaksanakan undang-undang, tanpa mengira apa pandangan peribadinya terhadap undang-undang tersebut.
[3] Akta Undang-Undang Keluarga Islam 1984 adalah lebih ke hadapan berbanding Akta serupa undang-undang sivil. Seksyen 79 Akta tersebut menyatakan secara spesifik bahawa mahkamah adalah berkuasa untuk membuat perintah nafkah melampaui umur 18 tahun bagi kanak-kanak “meliputi apa-apa tempoh tambahan yang difikirkannya munasabah, bagi membolehkan anak itu mengikuti pelajaran atau latihan lanjut atau lebih tinggi”. Perkataan-perkataan ini tidak boleh ditafsirkan ke dalam peruntukan semasa s. 95 Akta 1976. Harus ada satu peruntukan spesifik yang membolehkan pentafsiran sebegitu yang mana ianya adalah satu halperkara untuk Parlimen mengatasinya. Kes ini perlu diputuskan mengikut undang-undang sepertimana ianya wujud ketika ini.
Rayuan dibenarkan.]
Reported by Usha Thiagarajah

Case(s) referred to:
Ching Seng Woah v. Lim Shook Lin [1997] 1 CLJ 375 CA (dist)
Gisela Gertrut Abe v. Tan Wee Kiat [1985] 1 LNS 124; [1986] 2 MLJ 58 (refd)
In the Marriage of Mercer [1996] ALR 237 (refd)
Kulasingam v. Rasammah [1981] 2 MLJ 36 (refd)
Penner v. Danbrook 39 RFL (3rd) 286 (refd)
PQR (mw) v. STR [1993] 1 SLR 574 (refd)
Waterhouse v. Waterhouse [1905] 94 LT 133 (refd)

Legislation referred to:
Islamic Family Law (Federal Territories) Act 1984, s. 79
Law Reform (Marriage and Divorce) Act 1976, ss. 52, 76(3), 87, 92, 93, 95, 125
Counsel:
For the appellant – Balwant Singh Sidhu; M/s Balwant Singh Sidhu & Co
For the respondent – Foo Yet Ngo (CP Mahendran); M/s RR Chelliah Brothers

Case History:
Court Of Appeal : [2003] 2 CLJ 246
High Court : [2000] 5 CLJ 21

JUDGMENT
Abdul Hamid Mohamad FCJ:
On 30 January 1997, the High Court made an order, by consent, as follows:
Respondent (Appellant in this court and also in the Court of Appeal – added) dikehendaki membayar kepada Pempetisyen (Respondent in this Court and also in the Court of Appeal – added) jumlah sebanyak RM4,200 (iaitu RM1,400.00 bagi seorang anak) sebagai nafkah bagi ketiga-tiga orang anak hasil dari perkahwinan tersebut berkuatkuasa dari 1.1.97 dan tunggakan sebanyak RM60,000.00 sebagai penyelesaian akhir dan penuh dalam masa 3 bulan dari tarikh ini.
The appellant made the payments pursuant to the order until April 1998. However, by a letter dated 12 May 1998 to the respondent, he stated that he would cease payment for the eldest child (“Anitha”) on the ground that she had attained the age of 18 years. Accordingly he stopped paying the maintenance for Anitha from May 1998.
The respondent applied to the High Court for an order to compel the appellant to continue making the maintenance payments to Anitha and, by necessary implication, for the other two children as well, until they complete their degree education (“pendidikan ijazah”).
The High Court ordered that the consent order for the maintenance of the three children be extended beyond the age of 18 years in the event that Anitha and/or the other children do gain a place in any public or private educational institution of higher learning to obtain their first degree respectively.
The appellant appealed to the Court of Appeal. His appeal was dismissed.
On 23 September 2003, this court granted the appellant leave to appeal on the following questions of law:
Whether upon a proper construction of Section 95 of the Law Reform (Marriage and Divorce) Act 1976, the involuntary financial dependence of a child of the marriage for the purposes of pursuing and/or completing tertiary and/or vocational education comes within the exception of physical or mental disability so as to entitle the child to maintenance beyond the age of 18 years.
That is the question posed to this court.
Before the High Court, the question was worded in a slightly different manner. In the High Court the words “in order to obtain a first degree” were inserted after the words “tertiary education.” Those words are omitted in the question posed to this court. In other words, the question posed to us does not limit the financial dependence for the purpose of pursuing and/or completing tertiary education in order to obtain a first degree only.
The High Court answered the question in the affirmative. The court relied mainly on the judgment of the Court of Appeal in Ching Seng Woah v. Lim Shook Lin [1997] 1 CLJ 375, which the learned judge held was binding on him. In other words, the High Court held that Anitha was entitled to the maintenance payment to pursue/complete her tertiary education until she obtains a first degree because she was suffering from involuntary financial dependence for the purpose and that such involuntary financial dependence falls within the exception provided by s. 95 of the Act ie, “where the child is under a physical or mental disability….” What it means is that a child who gains admission into an institution of higher learning suffers from physical or mental disability until she obtains his or her first degree! I dread to think of the connotation of such an interpretation.
The Court of Appeal dismissed the appellant’s appeal and confirmed the decision of the High Court. Its conclusion is to be found in this passage:
To reiterate, on our part, we associate with the views expressed by the Court of Appeal in Ching Seng Woah mentioned earlier that in appropriate cases, involuntary financial dependence is a physical disability under section 95 of the Act. Indeed the matter before us is such a case. We may even go a step further in saying that this involuntary financial dependence can also be taken as a mental disability under the section for the purpose of the child of the marriage pursuing their tertiary education in order to be better equipped in their future working life.
Having considered the moral grounds for such an interpretation, the Court of Appeal referred to s. 92 of the Act and concluded:
… section 95 should not be looked at in isolation. It may well be appropriate as a general principle to be applied notwithstanding the qualification provided for in the section. However, in a given situation such as in the present case, it should be construed in a more liberal fashion in the light of the duty imposed upon the parent to maintain their children as embodied in section 92 of the Act.
I do not think that it is necessary for me to reproduce the arguments of the learned counsel before us. I shall refer to them as I go along.
For easy reference, the provisions of the Act referred to in the judgments of the High Court and the Court of Appeal as well as by both learned counsel in their arguments before us are reproduced.
Section 52 provides:
52. If husband and wife mutually agree that their marriage should be dissolved they may after the expiration of two years from the date of their marriage present a joint petition accordingly and the court may, if it thinks fit, (make a decree of divorce) on being satisfied that both parties freely consent, and that proper provision is made for the wife and for the support, care and custody of the children, if any, of the marriage, and may attach such conditions to the (decree of divorce as it thinks fit).
Section 87 provides:
In this Part, wherever the context so requires, “child” has the meaning of “child of the marriage” as defined in section 2 who is under the age of eighteen years.
Section 92 provides:
Except where an agreement or order of court otherwise provides, it shall be the duty of a parent to maintain or contribute to the maintenance of his or her children, whether they are in his or her custody or the custody of any other person, either by providing them with such accommodation, clothing, food and education as may be reasonable having regard to his or her means and station in life or by paying the cost thereof.
Section 93 provides:
(1) The court may at any time order a man to pay maintenance for the benefit of his child:
(a) if he has refused or neglected reasonably to provide for the child;
(b) if he has deserted his wife and the child is in her charge;
(c) during the pendency of any matrimonial proceedings; or
(d) when making or subsequent to the making of an order placing the child in the custody of any other person.
(2) The court shall have the corresponding power to order a woman to pay or contribute towards the maintenance of her child where it is satisfied that having regard to her means it is reasonable so to order.
(3) An order under subsection (1) or (2) may direct payment to the person having custody or care and control of the child or trustees for the child.
Section 95 provides:
95. Except where an order for custody or maintenance of a child is expressed to be for any shorter period or where any such order has been rescinded, it shall expire on the attainment by the child of the age of eighteen years or where the child is under physical or mental disability, on the ceasing of such disability, whichever is the later.
We will now look at the relevant case law. I shall begin with Malaysian cases.
Kulasingam v. Rasammah [1981] 2 MLJ 36 is a judgment of the High Court (Hashim Yeop Sani J, as he then was). In that case, the respondent’s wife applied for maintenance for herself and her daughter who was over twenty years old. Regarding the daughter the learned magistrate gave maintenance for her. On appeal to the High Court, Hashim A. Yeop Sani J held that the Age of Majority Act 1971 was applicable and therefore the daughter who was over 20 years old was not entitled to maintenance. That case was decided under the Married Women and Children (Maintenance) Ordinance 1950. The Ordinance was silent on the meaning of “child”. My check with the library copy of this Court shows that there was no provision in the Ordinance similar to s. 95 of the 1976 Act. Instead, s. 3 provides:
3(1) If a person neglects or refuses to maintain his wife or a legitimate child of his which is unable to maintain itself, a court, upon due proof thereof, may order such person to make monthly allowance for the maintenance of his wife or such child, in proportion to the means of such person, as to the court seems reasonable.
In other words, there was no provision similar to s. 95 of the 1976 Act that states that the order “shall expire on the attainment by the child of the age of eighteen years…”. There was also no definition of “child” as in s. 87 of the 1976 Act that provides for an age limit that it must be “under the age of eighteen years.” Yet, the learned judge applied the provisions of the Age of Majority Act 1971 and concluded that as the daughter was over 18 years of age, she was not entitled to maintenance. It is true that this case is not an authority for the interpretation of the exception in s. 95 of the 1976 Act. Yet, under circumstances which should be more favourable to the respondent (in that case) the court applied the provision of the Age of Majority Act 1971 to limit the entitlement of maintenance of a child to 18 years.
Gisela Gertrut Abe v. Tan Wee Kiat [1985] 1 LNS 124; [1986] 2 MLJ 58 is a case under the 1976 Act. Leaving out the details, it was held that the respondent’s legal responsibility to maintain the eldest daughter (who was 22 years old and who was studying in England) ended when she attained the age of 18 years and, similarly, in respect of the younger daughter (who was also studying in England) when she attains the age of 18 years. In her judgment (Siti Norma Yaacob J, as she then was), inter alia said:
Under section 95 of the Law Reform (Marriage and Divorce) Act 1976, the duration of a maintenance order made in favour of a child expires, in the absence of any expressed shorter period, on the child attaining the age of 18 years. Reading this section, it is clear that the mandatory provision and that being the case, I consider that consideration of moral grounds is of no relevance whatsoever.
This is perhaps the first reported case on s. 95 of the 1976 Act regarding the duration of a maintenance order. The judgment clearly shows that the learned judge considered the provisions of s. 95. True that she did not mention the exception. But, anybody reading that section would not have missed it as it is a one-sentence section.
The case went on appeal to the Supreme Court – see [1986] 2 MLJ 297. The appeal was allowed regarding part of the orders made by the High Court. Even though I find the judgment rather difficult to comprehend, the Court appears to agree with the learned High Court judge that “an order for maintenance of a normal child of the marriage shall expire on the child attaining the age of eighteen years (see s. 95 of the Act.)” – see p. 299-300 of the report.
We now come to Ching Seng Woah v. Lim Shook Lin [1997] 1 CLJ 375, the judgment of the Court of Appeal followed by the High Court and the Court of Appeal in this case. In that case, the High Court, inter alia, ordered that the appellant (“husband”) pay RM1,000 per month for the two daughters, their medical bills and their education up to tertiary first degree. On appeal to the Court of Appeal the husband’s counsel argued that the trial judge should not have ordered any maintenance at all for each of the two daughters beyond their eighteenth birthday. A very important point must be noted in considering this case and that is:
At the trial, contrary to his answer in totally denying any liability for maintenance for his wife or children, the husband agreed in his evidence in chief to pay maintenance to his two daughters and support their education until they receive their first degree. (emphasis added)
That is the background to the order for maintenance for the daughters’ education up to tertiary first degree.
Thus, when learned counsel for husband argued before the Court of Appeal that the maintenance order expired on the daughters’ attainment of the age of 18, the Court of Appeal commented:
In the narrow context of this case, the submission is somewhat startling because it comes from a husband who in the court below undertook on oath and with the benefit of legal advice to maintain his daughters till they received their first degree ie, till they were educationally equipped to find their rightful place on the job market. It is a fundamental doctrine of law that a person cannot be permitted to reprobate what he has approbated. We therefore reject this submission.
In my view that is the ratio of the case. Anything more said about s. 95 of the 1976 Act is mere obiter, even though, in view of the submission by the learned counsel for the husband, it was to be expected that the Court of Appeal should and would say something on it.
The other point that should be noted is that at the time the High Court made the maintenance order “the daughter was just over 16 1/2 years and the younger just over 13 1/2 years” – p. 121 of the report. Since they were both below 18 years old and the husband (their father) had, under oath, in the High Court “undertook” to maintain them till they received their first degree, no one can fault the High Court judge for making the order that he did regarding such maintenance.
I shall now come to that part of the judgment of the Court of Appeal regarding s. 95.
When parents divorce, the children suffer the most. If Mr. Sidhu is right, every able bodied child of 18 can be turfed out into the streets with impunity! Not only can they not look to their parents thereafter for money but also by inference for shelter in the matrimonial home! Section 95 could thus become the bohsia’s charter.
In the narrow context of this case, this submission is somewhat startling because it comes from a husband who in the court below undertook on oath and with the benefit of legal advice to maintain his daughters till they received their first degree, ie till they were educationally equipped to find their rightful place on the job market. It is fundamental doctrine of law that a person cannot be permitted to reprobate what he has approbated. We therefore reject this submission.
As to its wider implications, our view is that the powers provided for the protection of children by Pt.VIII of our Act are additional to and not restrictive of the powers contained in Pts VI and VII. Part VIII, s. 95 in particular, has to be viewed in the context of a child who is not simultaneously faced with the break-up of the family homestead. The parental duties in this context are spelt out by s. 92 and it extends to accommodation, clothing, food and education as may be reasonable having regard to his or her means and station in life or by paying the cost thereof.
Here the two boys are both enjoying a tertiary education; and the issue is whether the court can direct the husband to provide for his daughters till their tertiary degree, even if he had not undertaken to do so. The court’s powers under s. 52 are very wide and transcend the limitations contained in s. 95, because s. 52 operates in a situation where the family is being legally disintegrated.
Mr Sidhu did not canvas what the words ‘physical or mental disability’ in s. 95 meant. An 18 year old computer whiz-kid who is a wheel chair case and therefore well able to earn a living at that age could here be contrasted with another 18 year old who is physically and mentally fit but is otherwise totally unable to fend for himself on the job market. In the present case, we have no evidence of the accomplishments of the two daughters. However, we must take note that, unlike the United Kingdom and many other European countries, Malaysia is not a welfare state. Whilst the married women’s claim to a share of the matrimonial assets is now entrenched in our laws, the rights of the dependent young persons in these assets is yet to receive proper articulation. Kulasingam v. Rasammah [1981] 2 MLJ 36 was not cited to us, but that 20 year old daughter was claiming under the Married Women and Children (Maintenance) Ordinance 1950. Notwithstanding the definition of disability under s. 17 of the English Children’s Act 1989 (also not cited to us but see Bromley’s Family Law (8th edn.) at p. 643), we are inclined to the view that in appropriate cases, involuntary financial dependence is a physical disability under s. 95 of the Act. There are far reaching social implications here and we would prefer to say no more now as to whether English attitudes are suitable to Malaysian conditions in such a case or its corollary which is the duty to aged and dependent parents by their progeny. We would however reiterate that the question of proper provision under s. 52 of the Act and the powers of property division under s. 76 (as opposed to providing maintenance simpliciter) could involve transfers of property not just for the benefit of the spouses inter se but also for the benefit of the dependent children.
At the same time of the decree nisi, the elder daughter was just over 16 1/2 years and the younger just over 13 1/2 years. They had rights which had to be, and must have been taken into account by the trial judge when she apportioned the assets as she did. Had either parent refused to maintain them, the court would have had to consider what independent right they had against the parental assets to secure their position (see s. 79 of the Act).
First, personal views on the state of the law and moral obligations on the part of parents towards their children should be disregarded. A case has to be decided according to the law as it stands, irrespective of a judge’s personal view on it and moral obligations can never take precedence over the law. What the law should be is a matter for the legislature.
What is the legal basis for the decision of the Court of Appeal regarding s. 95? The court appears to rely on the provisions of ss. 52 and 92.
The only issue posed to this court is whether financial dependence falls within the meaning of the phrase “physical or mental disability”. Even without looking at a dictionary the word “disability” is always used in relation to “physical” or “mental”. As far as I can remember, I have not come across an example when the word “disability” is used in relation to a “financial” situation. The phrase “financial disability” sounds very odd to me.
We shall now look at the meaning of “disability” as given by the Concise Oxford Dictionary:
disability…, a physical or mental condition that limits a person’s movements, senses, or activities, disadvantage or handicap especially one imposed or recognised by the law.
Clearly, it is the first meaning that is relevant in interpreting the word “disability” used in s. 95 whatmore when the word is preceded by “physical and mental”.
The words “physical” and “mental” are always used to describe the two opposing or complimentary elements of a human being – the physical and the mental elements. Thus, the same dictionary gives the meanings of “physical” as follows, omitting what are clearly not relevant to the context:
“physical… 1 of or relating to the body as opposed to the mind… 2 of or relating to things perceived through the senses as opposed to the mind; tangible or natural forces generally…
The same dictionary gives the meanings of “mental” as follows:
“mental… 1 of, done by, or concurring in the mind. 2 of relating to disorder or illness of the mind…
The word “disability” is also used in The Family Maintenance Act, s.s. 1990-91 (Saskatchawan). The section reads:
2. In this Act…
(b) ‘child’ means a person who:
(i) is under the age of 18 years; or
(ii) is 18 years of age or over and is unable, by reason of illness or disability, to withdraw from his or her parents’ charge or obtain the necessaries of life.
In Penner v. Danbrook 39 RFL (3rd) 286, it was argued that the term “disability” in the section should be interpreted to include economic and social disability and that a person pursuing her education could be found to be disabled, and thus a child eligible for maintenance within the meaning of the section.
The Saskatchewan Court of Appeal held that the argument was untenable, and went on to say:
First, the term disability as used in the section must connote some physical or mental incapacity, usually arising from injury or disease, although it might arise from other causes. Mere lack of knowledge or training or an unfulfilled wish to improve one’s self are not, in the ordinary language, considered to be disabilities. To extend the meaning of the term disability to such matters would make the section of such broad application that anyone of any age, education, or experience could fit into it, and the age limitation imposed by the legislature would be rendered meaningless.

… The legislature intended to limit the jurisdiction of the courts to grant maintenance to children over the age of 18 years to those cases of proven illness or disability, and the term disability was not intended to include cases such as Nicole, who remained dependent only because of the continuation of her education was seen by her mother as desirable.
Clearly the word “disability” as used in s. 95 covers only “physical” and “mental” disability. It cannot cover financial dependence. The word “child” used in s. 95 is also defined in s. 87, the first section in “PART VIII” on “PROTECTION OF CHILDREN” to mean a child under the age of eighteen years. Section 95 is a part of PART VIII. We have also seen in Gisela Gertrut Abe (supra), the Supreme Court also states that “an order for maintenance of a normal child of the marriage shall expire on the child attaining the age of eighteen years (see s. 95 of the Act” – p. 299 – 300 of the report). When the Supreme Court in that judgment used the words “a normal child”, it clearly means a child who is not “under physical or mental disability”.
Section 52 was referred to by the Court of Appeal in this case. With respect, I find that that section is not of any assistance in the interpretation of s. 95.
A lot of reliance was placed by the High Court judge in this case and the Court of Appeal both in this case and in the case of Ching Seng Woah (supra) on s. 92 to come to the conclusion that they did. With respect, in my view s. 92 merely declares the duty of a parent to maintain or contribute to the maintenance of his or her child and spells out what the parent should provide for the child. That is a general provision. Section 95 is specific regarding the duration of the order for maintenance. The duration is not mentioned in s. 92. Only s. 95 speaks of the duration. Thus, I do not see how s. 92 can qualify s. 95. Indeed, to hold that s. 92 qualifies or overrides s. 95 would render the provisions of s. 95, a specific provision for the particular purpose, nugatory.
Section 93 too offers no assistance in interpreting s. 95. Section 93 empowers the court to make a maintenance order for the benefit of child under the circumstances therein provided, the most relevant paragraph being para. (a) ie, where he has refused or neglected reasonably to provide for the child. Again, the duration is not mentioned. On the other hand, the section refers to “child”, which is clearly defined in s. 87 mentioned earlier which means a child of the marriage who is under the age of eighteen years.
With respect, I find no legal basis for interpreting the exceptions in s. 95 to include financial dependence for the purpose of pursuing and/or vocational education after the “child” has completed the age of eighteen years. The only basis for such an interpretation, which goes against the clear words of the law, is moral basis. And Siti Norma Yaacob J puts it very aptly in Gisela Gertrut Abe v. Tan Wee Kiat (supra) that “moral grounds is of no relevance whatsoever”. Moral grounds can never override clear provisions of the law in deciding a case. The function of a judge is to apply the law, whatever his personal view about the law may be.
It should be noted that s. 79 of the Islamic Family Law (Federal Territories) Act 1984 (which has been adopted by the State Legislatures for application in the States) made by the same Parliament that enacts the 1976 Act, contains the following provisions:
79. Except:
(a) where an order for maintenance of a child is expressed to be for any shorter period; or
(b) where any such order has been rescinded; or
(c) where any such order is made in favour of:
(i) a daughter who has not been married or who is, by reason of some mental or physical disability, incapable of maintaining herself;
(ii) a son who is, by reason of some mental or physical disability, incapable of maintaining himself,
the order for maintenance shall expire on the attainment by the child of the age of eighteen years, but the Court may, on application by the child or any other person, extend the order for maintenance to cover such further period as it thinks reasonable, to enable the child to pursue further or higher education or training. (emphasis added).
In this respect, the Islamic Family Law (Federal Territories) Act 1984 is more advanced than its civil counterpart. In reality, those are the words that the respondent wants this court to “legislate as an amendment” to the existing provisions of s. 95. The respondent has succeeded in the High Court and the Court of Appeal. With respect, I will not do such a thing. That is not the function of the court. That is a matter for the Parliament. By doing so, the court will be usurping the function of the legislature. If separation of powers were to have any meaning, the three branches of the government must respect each other’s jurisdiction. There should be no interference, no usurpation of powers either way.
Learned counsel for the respondent referred us to the provisions of s. 69(5) of the (Singapore) Women’s Charter (as well as legislations in other countries) in an attempt to convince us that it is the policy in those countries too to provide for maintenance for a child to pursue or complete his or her tertiary education. I agree with her that that is the policy in those countries and it should be the policy in this country too. But, whereas that is also the law in those countries, it is not the law in this country, except for the law applicable to Muslims.
What had happened in Singapore was that the law was amended after the decision in PQR (mw) v. STR [1993] 1 SLR 574. In that case, the plaintiff, inter alia, was seeking for a maintenance order to be varied. The relevant provisions of the (Singapore) Women’s Charter under consideration in that case were as follows:
Section 125:
Except where an order for custody or maintenance of a child is expressed to be for any period shorter period or where any such order has been rescinded, it shall expire:
(a) on the attainment of the age of 21 years;
(b) upon the child obtaining gainful employment; or
(c) where the child is under any physical or mental disability, on the ceasing of such disability, which ever is the later.
Section 116:
In this Chapter (Welfare of Children), wherever the context so requires, ‘child’ means a child of the marriage as defined in section 84 but who is under the age of 21 years.
The issue regarding maintenance in that case was whether the daughter who was then more than 22 years old but was studying at a university is Australia was entitled to maintenance.
Punch Coomaraswamy J after referring to the (English) Domestic Proceedings and Magistrates’ Court Act 1978 and the (English) Matrimonial and Family Proceedings Act 1984, said:
In Singapore law, there is however no equivalent of either English Act. There is no definition of ‘infant’ in the Interpretation Act (Cap. 1). The Women’s Charter, ss. 125 and 116 are clear as to the upper limit of 21 years…
The learned judge went on to hold:
I find that the meaning of ‘child’ under s. 116 applies to section 61 and hence the legal duty to provide maintenance ceases upon the child attaining 21, the age of majority. I come to this conclusion as a result of the indicators of the upper limit of maintenance as provided by ss. 116 and 125. If the present law is unsatisfactory in this aspect, it will be for Parliament to address the problem and not the courts. (emphasis added).
Therefore the learned judge held that the defendants’ legal duty to provide maintenance ceased for the daughter upon her attaining 21 years old age” (However, in that case since that defendant willingly agreed to continue to provide the daughters university tuition fees till she finishes her general degree at the Australian university and for her honours degree if she qualifies and he also agreed to be bound by an order of the court to that effect, the court made the order.)
A few points should be noted about that case. First, s. 61 of the (Singapore) Women’s Charter is substantially the same as s. 96 of the 1976 Act. The provision of s. 116 of the (Singapore) Women’s Charter is in pari materia with that of s. 87 of the 1976 Act, except for the upper limit of 21 years instead of 18 years. The provision of s. 125 of the (Singapore) Women’s Charter is the same as in s. 95 of the 1976 Act except that in the former the section is broken into three paragraphs and another exception is provided in s. 125 of the (Singapore) Women’s Charter but not in s. 95 of the 1976 Act ie, “upon the child obtaining gainful employment”. However, it is important to note that the exception “where the child is under any physical or mental disability” is exactly the same in both Acts.
Secondly, the learned judge refused to follow the decision of the English court in Waterhouse v. Waterhouse [1905] 94 LT 133 in view of the clear provisions of the Singapore law and the difference between Singapore and English laws.
Thirdly, the learned judge, took the view that if the law was unsatisfactory, it was for Parliament to address the problem, not the courts.
Subsequently, the Women’s Charter was amended, with effect from 30 May 1997. The new sub-s. (5) of s. 69 provides:
(5) The court shall not make an order under subsection (2) for the benefit of a child who has attained the age of 21 years or for a period that extends beyond the day on which the child will attain that age unless the court is satisfied that the provision of the maintenance is necessary because:
(a) of a mental or physical disability of the child;
(b) the child is or will be serving full-time national service;
(c) the child is or will be or (if an order were made under subsection (2)) would be receiving instruction at an educational establishment or undergoing training for a trade, profession or vocation, whether or not while in gainful employment; or
(d) special circumstances, other than those stated in paragraphs (a), (b) and (c), exist which justify the making of the order.
The Australian case of In the Marriage of Mercer [1996] ALR 237 was referred to us. In that case, the husband applied to discharge a consent order in respect of maintenance of the eldest child of his former marriage. The child was 19 years old and was undertaking tertiary education. The judgment of Watson J, inter alia, reads:
In the Family Act the code for the maintenance of children is to be found in ss. 73, 75 and 76. Section 73 provides that the parties to a marriage are liable, according to their respective financial resources, to maintain the children of the marriage who have not attained the age of 18 years. This is a general statement of principle defining age of 18 years. This is a general statement of principle defining parental obligation up to 18. It does not provide any guidance once a child of a marriage becomes an adult.
Section 76 generally limits the duration of child maintenance orders up to the child’s 18th birthday. However, s. 76(3) provides:
The court may:
(a) provide in an order for the maintenance of a child who has not attained the age of 18 years that the order shall continue in force until a day that is later than, or for a period that extends beyond, the day on which the child will attain the age; or
(b) make an order for the maintenance of a child who has attained the age of 18 years, being an order that is expressed to continue in force until a day, or for a period specified in the order,
if the court is satisfied that the provision of the maintenance is necessary to enable the child to complete his education (including vocational training or apprenticeship) or because he is mentally or physically handicapped, and, in that case, the order continues in force until that day or the expiration of that period, as the case may be.
In a case such as the present the court has to be satisfied that the provision of the maintenance is necessary to enable the child to complete his education, etc.
Thus, we see that in Australia too there is a specific provision in the Act that empowers the court to make a maintenance order after the child has attained the age of 18 years if it is necessary to enable the child to complete his education.
So, it is a non-starter to argue that since in other countries a child is provided with maintenance to enable him or her to complete his or her tertiary education, the courts in Malaysia should do the same. We should look at our law and decide according to our law as it now stands. Just as what was done in Singapore, it is for the Parliament to address the problem, not the courts. In fact our Parliament and the State Legislatures had already done it in regard to the Islamic Family Law.
In the circumstances, I would answer the question posed to this court in the negative. The appeal is allowed with costs here and in the courts below. The deposit is to be refunded to the appellant.
My learned brothers Mohd. Noor Ahmad and Pajan Singh Gill FCJJ have read this judgment in draft and agreed with it.

CHAI YEE CHONG v. LEW THAI

CHAI YEE CHONG v. LEW THAI
COURT OF APPEAL, KUALA LUMPUR
ABDUL HAMID MOHAMAD, FCJ; MOHD NOOR AHMAD, FCJ; ABDUL AZIZ MOHAMAD, JCA
CIVIL APPEAL NO. A-02-476-99
18 MARCH 2004
[2004] 2 CLJ 321
TORT: Negligence – Duty of care – Duty of one Employee owed to another – Whether special relationship in existence

DAMAGES: Special Damages – Medical expenses – Expenses at private Hospital – Principles of recoverability

The respondent (plaintiff in the High Court) and the appellant (defendant in the High Court) were employees of a tin mine. The respondent was the mine’s ‘kepala’ whereas the appellant was its manager and director. On 14 October 1982, the respondent was instructed by the appellant to use a tractor to increase the height of the bund to prevent an overflow of water from the mining pool into the mining pit. It was raining heavily at the material time and the only way the overflow of water into the mining pool could be checked was by increasing the height of the bund at the parts where the water overflowed. It was important to stop the overflow of water into the mine pit because if it flooded, the mine would have to cease operations for sometime thereby causing financial repercussions. As the respondent was working on the bund, the bund collapsed as a result of which the respondent was buried and suffered serious injuries. The cause of the bund’s collapse was not established. At first the respondent filed an action against the tin mine operator as his employer and the appellant as the servant or agent of the employer. However the claim against the employer was discontinued as not maintainable under the Employees’ Social Security Act 1969. The writ and statement of claim were also amended so that the action was maintained only against the appellant as a co-employee of the respondent. The High Court found the appellant liable in negligence for injuries suffered and awarded the respondent damages. The appellant appealed to the Court of Appeal in respect of the High Court’s finding of liability; the award of RM15,028 for medical expenses and the award of RM10,000 for loss of earning capacity.
Held (allowing the appeal)
Per Abdul Hamid Mohamad & Mohd Noor Ahmad FCJJ:
[1] The Court of Appeal would agree with the finding of the High Court that the amendment to the Employees’ Social Security Act 1969 that bars a claim against a fellow employee (that came into force on 1 July 1992) was not applicable since the accident happened and the action was filed long before that date.
[2] The Court of Appeal would agree with the High Court that there was a special relationship between the appellant and the respondent and that there was a duty of care on the part of the appellant towards the respondent. However the Court of Appeal was unable to agree with the High Court’s finding of negligence on the part of the appellant.
[3] In the instant case, the question was whether a reasonable man, considering the nature of work of the respondent which included raising the bund and taking measures to save the mine from flooding, would think that to do the work at the time of the accident under the conditions then prevailing was so dangerous that to allow the respondent to do it or not to stop him from doing it would constitute negligence. On the facts, it was not reasonable to find negligence on the part of the appellant for allowing or for not stopping the respondent from doing the work he was doing at the time of the accident.
[4] Every person has a right to seek medical treatment at a hospital of his choice, be it at a government hospital or at a private hospital. When it comes to awarding damages for such treatment, if the treatment sought is at the government hospital, the full amount expended and paid by the person should be awarded. If the person seeks treatment at a private hospital, he has to prove firstly that he was justified to seek the treatment at the private hospital, and secondly the amount incurred was reasonable. With regard to the first hurdle, he has to prove: (a) that the particular treatment required was not available at the government hospital due to the unavailability of necessary equipment or qualified doctors or other sufficient reasons; (b) though the treatment is available at a general hospital, it is not available within a reasonable period considering the urgency of the treatment. This could be due to the congestion at government hospitals or other sufficient reasons; or (c) that the treatment at government hospitals though available, is grossly inadequate.
[5] If the court is not satisfied that a plaintiff is justified to seek treatment at a private hospital, then depending on the facts and figures of the case, the court should either dismiss the claim or award an amount not exceeding one third of the expenses. The one third principle is not fixed by any written law. It is a matter of practice. If one third is excessive an amount of less than one third may be awarded.
[6] If the court is satisfied that a plaintiff is justified in seeking medical treatment at a private hospital, the plaintiff must prove that the expenses incurred and the amount claimed are reasonable taking into consideration normal charges at other local private hospitals. The court may then award what it considers to be a reasonable amount which may even be the full amount claimed.
[7] In the case of treatments at private hospitals at Singapore, the test applicable would be that applicable to justify treatment at a private hospital locally, except that the test is applied to local private hospitals instead of a government hospital.
[8] In the instant case, there was ample evidence to show that the plaintiff was justified in seeking further treatment at Fatimah Hospital – a private hospital after his discharge from the General Hospital. Had liability been found in the respondent’s favour he should have been awarded the full amount of the medical expenses.
[9] The respondent was able to work and indeed worked as a tractor driver with a number of employers after the accident and was earning more than before the accident. He had therefore not suffered any loss of earning capacity.
Diputuskan (membenarkan rayuan)
Oleh Abdul Hamid Mohamad & Mohd Noor Ahmad HHMP:
[1] Mahkamah Rayuan bersetuju dengan dapatan Mahkamah Tinggi bahawa pindaan kepada Akta Keselamatan Sosial Pekerja 1969 yang menghalang tuntutan terhadap rakan sekerja yang berkuatkuasa pada 1 Julai 1992 adalah tidak terpakai kerana kemalangan berlaku dan tuntutan difail lama sebelum tarikh tersebut.
[2] Mahkamah Rayuan bersetuju dengan Mahkamah Tinggi bahawa ada hubungan istimewa antara perayu dan responden dan bahawa wujud kewajipan berjaga-jaga di pihak perayu terhadap responden. Mahkamah bagaimanapun tidak bersetuju dengan dapatan Mahkamah Tinggi bahawa terdapat kecuaian di pihak perayu.
[3] Dalam kes semasa, persoalannya adalah sama ada seorang yang munasabah, mengambilkira sifat tugas responden yang termasuk tugas meninggikan batas dan mengambil langkah-langkah untuk menyelamatkan lombong dari dibanjiri, akan berfikir bahawa melakukan kerja-kerja yang disuruh itu dalam halkeadaan yang wujud adalah sebegitu merbahaya sehinggakan membenarkan responden melakukannya atau tidak menghalang beliau dari melakukannya adalah satu kecuaian. Berdasarkan fakta, bukanlah sesuatu yang tidak munasabah untuk mendapati kecuaian di pihak perayu kerana membenarkan ataupun kerana tidak menghalang responden dari membuat kerja-kerjanya semasa kemalangan berlaku.
[4] Setiap orang berhak untuk mendapatkan rawatan perubatan di hospital pilihannya, sama ada di hospital kerajaan mahu pun swasta. Berkaitan pemberian award bagi rawatan sedemikian, sekiranya rawatan yang dibuat adalah di hospital kerajaan, jumlah yang ditanggung dan dibayar oleh orang berkenaan harus berikan award sepenuhnya. Jika orang tersebut mendapatkan rawatan di hospital swasta, ia harus membuktikan, pertama, bahawa ia mempunyai justifikasi untuk mendapatkan rawatan di situ, dan kedua, bahawa jumlah yang ditanggungnya adalah munasabah. Berhubung dengan halangan pertama, ia harus membuktikan: (a) bahawa rawatan yang beliau perlukan itu tidak terdapat di hospital kerajaan disebabkan ketiadaan peralatan-peralatan perlu atau doktor-doktor yang berkelayakan ataupun sebab-sebab lain yang memadai; (b) bahawa walaupun rawatan itu terdapat di hospital kerajaan, ia tidak dapat diperoleh dalam waktu yang munasabah mengambilkira kecemasan yang wujud bagi mendapatkan rawatan. Ini mungkin disebabkan oleh kesesakan di hospital kerajaan atau pun lain-lain sebab yang memadai; atau (c) bahawa rawatan di hospital kerajaan, walaupun ada, adalah sangat-sangat tidak mencukupi.
[5] Sekiranya mahkamah tidak berpuas hati bahawa seorang plaintif mempunyai justifikasi untuk mendapatkan rawatan di hospital swasta, maka, bergantung kepada fakta kes dan butiran-butiran perbelanjaan, mahkamah harus sama ada menolak tuntutan atau mengawardkan satu jumlah yang tidak melebihi sepertiga perbelanjaan. Prinsip sepertiga tidak ditetapkan oleh undang-undang. Ia sebaliknya adalah satu perkara amalan. Jika sepertiga juga terlampau banyak maka jumlah yang kurang dari itu boleh diawardkan.
[6] Sekiranya mahkamah berpuas hati bahawa seseorang plaintif mempunyai justifikasi untuk mendapatkan rawatan di hospital swasta, plaintif tersebut perlu membuktikan bahawa perbelanjaan yang ditanggung dan jumlah yang dituntut adalah munasabah dengan mengambilkira perbelanjaan biasa di hospital-hospital swasta lain. Mahkamah kemudian akan mengawardkan apa yang ia anggap sebagai jumlah yang munasabah yang mungkin juga merangkum sepenuhnya jumlah tuntutan.
[7] Dalam kes rawatan di hospital swasta di Singapura, ujian yang dipakai adalah sama seperti ujian yang terpakai kepada hospital swasta dalam negara, kecuali bahawa ujian tersebut terpakai kepada hospital swasta dalam negara dan tidak kepada hospital kerajaan.
[8] Dalam kes semasa, terdapat keterangan yang banyak yang menunjukkan bahawa responden mempunyai justifikasi untuk mendapatkan rawatan lanjut di Hospital Fatimah – sebuah hospital swasta, selepas dibenarkan keluar dari Hospital Awam. Oleh itu, sekiranya liabiliti diputuskan secara yang memihak kepada responden beliau harus diberikan award yang penuh bagi perbelanjaan perubatannya itu.
[9] Responden mampu bekerja dan selepas kemalangan telah bekerja sebagai pemandu traktor dengan beberapa majikan dengan menikmati pendapatan yang lebih lumayan dari yang diperolehinya sebelum kemalangan. Beliau dengan itu tidak menanggung apa-apa kehilangan daya pendapatan.
Reported by AC Simon

Case(s) referred to:
Chin Lin Soon lwn. Mad Daud Mat Zain & Satu Lagi [1996] 1 LNS 198; [1996] MLJ U 346 HC (refd)
Chong Chee Khong & Anor v. Ng Yeow Hin [1997] 4 CLJ Supp 17 HC (refd)
Chong Kam Siong v. Herman Baharuddin [1995] 2 CLJ 413 HC (refd)
Ellis v. Home Office [1953] 2 All ER 149 (refd)
Harcharan Singh Saudagar Singh v. Hassan Ariffin [1990] 2 CLJ 393; [1990] 2 CLJ (Rep) 99 HC (refd)
Hehir v Harvey [1949] SASR 77 (refd)
Hj Ariffin Hj Ismail v. Mohamad Noor Mohamad [2001] 2 CLJ 609 CA (refd)
Johnson v. Rea Ltd [1962] 1 QB 373 (refd)
Lew Thai v. Chai Yee Chong [1997] 1 CLJ Supp 13 HC (refd)
Lim Wee Heong dan Satu Lagi lwn. Nai Wah Hing dan Satu Lagi [1996] 1 LNS 232; [1996] MLJ U 394 HC (refd)
Mooi Kim Ming & Anor v. Tang Sia Bak [1988] 2 CLJ 797; [1988] 2 CLJ (Rep) 30 HC (refd)
Ng Aik Kian & Anor Siah Loh Sia [1997] 2 R 1996 (refd)
Pengarah Institut Penyelidikan Perubatan & Anor v. Inthra Devi & Anor [1987] 2 CLJ 420; [1987] CLJ (Rep) 275 SC (refd)
Peraganathan Karpaya v. Choong Yuk Sang & Anor [1996] 1 CLJ 622 (refd)
Romuloo Appalasamy & Anor v. Tan Seng Kee & Anor [2000] 2 CLJ 611 HC (refd)
Sambu Pernas Construction v. Pitchakkaran [1982] 1 CLJ 151; [1982] CLJ (Rep) 299 FC (refd)
Suriyati Takril v. Mohan Govindasamy & Anor [2001] 2 CLJ 101 HC (refd)
Tajuddin Sheikh Daud v. Wong Kim Yin [1989] 2 CLJ 237; [1989] 2 CLJ (Rep) 546 HC (refd)
Tang Kia Bak v. Mooi Kin Meng & Anor (Supreme Court Civil Appeal No. 249 of 1987, Unreported) (refd)
Yaakub Foong Abdullah v. Lai Mun Keong [1986] 1 CLJ 355; [1986] CLJ (Rep) 790 HC (refd)

Other source(s) referred to:
Clerk & Lindsell on Torts , 17th edn, pp. 243, 246, 247

Counsel:
For the appellant – V Vijayasegaran; M/s Maxwell Kenion Cowdy & Jones
For the respondent – R Siva Dharma (Sharmini Navaratnam); M/s Matthew Thomas & Liew

Case History:
High Court : [1997] 1 CLJ 13
JUDGMENT
Abdul Hamid Mohamad FCJ:
The respondent (plaintiff in the High Court) sued the appellant for damages for negligence on the part of the appellant. The learned judge (as he then was) gave judgment for the respondent. The appellant appealed to this court. We allowed the appeal with costs in this court and in the court below.
Both the appellant and respondent were employed by Chai Kim Kong & Sons Sdn. Bhd (“the company”). The appellant was employed as a manager of the company for fifteen years prior to the accident. He was also a director of the company which was owned by his father.
The respondent was employed by the company for sixteen years before the accident. He was at first employed as a tractor driver but was promoted to be a “kepala” about three months before the accident.
It was raining heavily on the day of the accident and the town of Malim Nawar in which the tin mine in question was situated was flooded partially.
According to the respondent, after dinner, he went to the mine and saw that water in the mine pit was rising. He informed the appellant. The appellant took him in a land rover to the kongsi house. There the appellant and the respondent each took out a tractor “to do the work” in connection with the rising water.
The respondent drove a tractor to the bund. On one side of the bund was the mining pit and on the other side there was an existing mining pool. The respondent started working by increasing the level (ie, height) of the part of the bund where flood water was flowing over the bund into the mining pit. It was dark. There was no light except for the light of the tractor he was driving. The bund was built of sand and it was broad enough for a lorry or a tractor to be driven on it. His tractor’s weight was ten tons.
At that time the appellant was doing similar work nearer the “kongsi” house.
The respondent increased the height of the bund by taking sand from the side of the mine and putting it on top of the bund with his tractor. While reversing his tractor to get more sand, the bund collapsed. The tractor fell into the mining pit. He was pinned down by the tractor. He shouted for help and was rescued by the workers. He suffered injuries.
The appellant had claimed and had received compensation under the Employees’ Social Security Act 1969. The present claim is against the respondent as a co-employee for negligence for an “omission to do some act or acts”.
The learned judge held that an action lies against a co-employee. The learned judge relied on the judgment of the Federal Court inSambu Pernas Construction v. Pitchakkaran [1982] 1 CLJ 151; [1982] CLJ (Rep) 299. The learned judge noted that the amendment to the Employees’ Social Security Act 1969 that bars a claim against a fellow-employee that came into force on 1 July 1992 (vide Employees’ Social Security (Amendment) Act, 1992) was not applicable as the accident happened and the action was filed long before that date. That issue was not taken before us. I agree with the learned judge.
On the issue of liability, the learned judge said:
Very generally, inter alia in connection with negligence, the general duty of care is that one must take care not to cause injury or damage to one’s neighbour, (neighbour as explained in Donoghue v. Stevenson, [1932] AC 562).
On the other hand, the law does not impose a general duty of care to save the neighbour from such injury or damage for which one is not responsible, save in one exception. Barring the exception, and carried to its logical conclusion, it has been said that a bystander can watch a small child drown in one foot of water without doing anything to save the child, and yet he will not have incurred any civil liability for damages, though he will be, of course, roundly condemned by all right thinking-members of society and will have to be answerable to God in due course. The law has never imposed a duty on anyone to be a “do-gooder” or a good Samaritan.

To continue, the exception above-mentioned is when there is a special relationship between the parties, (independently of any contractual relationship of course), where the law will impose such a duty of care in regard to such failure or neglect to save one’s neighbour from injury or damage even where one is not responsible for such injury and damage to such neighbour.
When such special relationship arises, the law will impose a duty of care of a special kind, it being a duty to act affirmatively to protect the said neighbour or plaintiff from such injury or damage. Such duty to protect the plaintiff, or for that matter, such special relationship arises, it appears, from certain situations when, eg, the defendant is responsible for placing the plaintiff in a position in which it is forseeable that the plaintiff may be injured; or where the plaintiff creates a danger, even though innocently, he has failed to take steps to remedy or prevent it, see Johnson v. Rea [1962] 1 QB 373 (about slippery floor causing a fall). The situations just stated are not conclusive, but any other situation, to give rise to such special relationship ought to be of a similar nature, the essence being on danger.
Thus generally speaking, in other words, when any such situation exists to give rise to such duty to protect the plaintiff, the special relationship between the plaintiff and the defendant comes into being. Such special relationship has been held to arise in a good number of cases, just to give some other examples, eg. Between a carrier and a passenger; and in Ellis v. Home Office [1953] 2 all ER 149 (about assault on a fellow-prisoner). There was Carmarthenshire Country Council v. Lewis [1955] AC 549 about a 4-year old boy of a nursery school under the management of the local authority, running onto a public highway in temporary absence of the teacher, causing a fatal accident to some driver who tried to avoid the boy.
Lastly, in regard to the standard of the duty of care on a defendant in connection with the duty to protect the plaintiff imposed by law, from such actionable omission it is equivalent to or is demonstrated by what the plaintiff has to prove, according to a test laid down by Lord Dunedin in Morton v William Dixon Ltd [1909] CS 807, 899; “either (a) to show that the thing the defendant did not do was a thing commonly done by other persons in like circumstances or (b) to show that it was a thing which was so obviously wanted that it would be a folly in anyone to neglect to provide it”. In so showing, the obviousness stated above must be such as appears to a prudent and reasonable man, see Paris v. Stepney Borough Council, [1951] AC 367, 382 which approved and adopted the dictum of Lord Dunedin. The word “folly” above-mentioned refers to something which is imprudent or unreasonable, see Cavanagh v. Ulster weaving Co [1960] AC 145, 162 in which both Morton and Paris were approved.
The court may just as well mention here, if it is of some help, that on a given set of facts which attract the operation of the above principles, plaintiff may sue, of course, on the basis of such principles, but he may be able also to sue concurrently or in the alternative, on the basis of some other specific tort involving sometimes substantially similar principles such as an occupier’s liability to an invitee or licensee etc. Overlapping of the laws exists in many fields.
To revert to the evidence and bearing in mind the applicable general principles stated above, I am satisfied, that there was fairly heavy rain on that day from 2.00 pm right up to about 8.00 pm when the mining town of Malim Nawar in which the mine was situated was even flooded partially.
I am further satisfied that there was flood water overflowing the bund and into the mining hole of the tin mine in question, and the plaintiff informed the defendant who was his superior at the mine, and the defendant had told him to remedy it by asking the plaintiff to go to the place of overflowing flood water “to have a look” at it. I am satisfied, all on balance of probabilities, that by saying so to the plaintiff, the defendant meant that the plaintiff should increase the height of the bund, and this is fortified by the defendant seeing the plaintiff take a 10-ton tractor to do the work on a bund with overflowing water, at a place in darkness save relieved somewhat by the lights of the plaintiff’s tractor. Defendant never took any step to stop the plaintiff from taking a tractor to go there, he had every opportunity to do so if he wanted, while in fact, he wanted the plaintiff to do the work in question with a tractor, such work being work not done usually at night. Plaintiff wanted to save the mine from being flooded and being closed consequently for a about one week if it was flooded. Loss of profit was regarded by him as more serious than danger to life.
In the circumstances, I think with reference to some of the particulars of negligence alleged by the plaintiff in that statement of claim, that the defendant on that night had indeed failed to take any precaution (a) for safety of the plaintiff; (b) for not exposing the plaintiff to risk of injury of which the defendant knew or ought to know and (c) such precaution consisting of not instructing the plaintiff to increase the height of the bund when he knew or ought to know of any probable landslide.
Facts in this case could quite naturally constitute the situation that gives rise to a special relationship between the plaintiff and the defendant. The defendant, being under the control of the plaintiff, the mine manager, had to be on duty at the mine that night in a position that it was foreseeable that the plaintiff might be injured that night.
I further hold more specifically that the defendant had failed to take the said precaution in the following ways; (a) by failing to ask the plaintiff to stop work and (b) by failing to tell the plaintiff not to drive a tractor there to raise the height of the bund over which flood water flowed, in view of the conditions of great danger there prevailing that night as set out above. Such specified precaution “was a thing which was so obviously wanted that it would be a folly” for the defendant to neglect to provide such precaution. I find the defendant liable.”
I agree with the learned judge regarding the law. I also agree with the learned judge that there was special relationship between the appellant and the respondent and that there was a duty of care on the part of the appellant towards the respondent. However, with respect, I am unable to agree with him on his finding of negligence on the part of the appellant.
The learned judge appears to have placed a lot of emphasis on the fact that the appellant had failed to stop the respondent from driving the tractor to raise the height of the bund and for failing to tell the respondent to stop work.
I accept that the condition under which the work was being done at that time was quite dangerous, more dangerous than on normal days. But we must also remember that even under normal circumstances some works are more dangerous than others. At times the same work can be more dangerous than under normal circumstances. Does it mean that the same type of work should not be allowed to be done when it is more dangerous than under normal circumstances? I think the answer may be “yes” or “no” depending on the nature of work and the particular circumstances at that particular time.
The question is: would a reasonable man, considering the nature of work of the respondent which includes raising the bund and taking measures to save the mine from flooding, think that to do the work at the time of the accident under the conditions then prevailing was so dangerous that to allow the respondent to do it or not to stop him from doing it, constitutes negligence?
We must bear in mind that in this case the respondent himself took out a tractor under similar conditions and at the same time and was doing the same type of work himself. It goes to show that to do the work under such conditions was not so inherently dangerous that he himself would not do but asked the respondent to do. The respondent himself did not object to it. Nor did he stop work because he thought it was too dangerous. He had, prior to the date, worked in the mine for 16 years. He was an experienced worker. He himself would have known if it was too dangerous to do the work then. With greatest respect to the learned judge, I am of the view that he had not paid sufficient attention to the factors mentioned above. Had he done so, he might have come to a different conclusion. In any event, I am of the view that, on the facts on this case, it would not be reasonable to find negligence on the part of the appellant for allowing or for not stopping the respondent from doing the work he was doing at the time of the accident.
On damages two issues were raised, the first concerning an award for medical expenses at a private hospital and the second, on loss of earning capacity.
Regarding the award for medical expenses both parties agreed that the amount of RM15,028 was incurred as medical expenses by the respondent. The learned judge awarded that amount as special damages. Before us, it was argued that the full amount should not have been awarded because part of it was medical expenses incurred at a private hospital. Learned counsel for the appellant submitted that the learned judge had failed to consider whether, in the circumstances of the case, it was reasonable for the respondent to seek medical treatment at a private hospital. Instead the learned judge had imported his personal knowledge of the hospital and concluded that the amount claimed was reasonable.
On this point, this is what the learned judge said:
The other ground for disputing liability is that 1/2 of the medical expenses was incurred in Fatima hospital instead of the Ipoh General Hospital. Fatima Hospital is a private hospital run by a Christian mission and I have every reason to believe from my 6 years as a resident Judge in Ipoh before, it has never aimed to make profit for the sake of making profit and though it is a private hospital; but it is closer to being a charitable institution. Fatima hospital is a poor man’s second choice of hospital in Ipoh being unlike one of those expensive private hospitals. I do not think therefore I need even further to delve into question of reasonableness of his getting treatment at a private hospital.
It was complained that the learned Judge had imported his personal experience of his long stay in Ipoh to make the conclusion that he did regarding Fatima Hospital.
I shall now discuss the so-called two lines of authorities or two schools of thought regarding the right to get treatment at a private hospital and to be paid the full amount for it as special damages. I shall first deal with cases in which the full expenses at private hospitals were allowed.
Yaakub Foong Abdullah v. Lai Mun Keong [1986] 1 CLJ 355; [1986] CLJ (Rep) 790 was a High Court, Johor Bahru case. The plaintiff was first admitted to the General Hospital at Johor Bahru. Later he was transferred to Singapore General Hospital. The learned defence counsel submitted that the plaintiff should get himself treated at the Government Hospital in Johor Bahru because it is cheaper by half. M Shankar J (as he then was) held:
As to this view, it is my view that a claimant is entitled to have himself treated in a private hospital if in all the circumstances that is not an unreasonable thing for him to do.
The learned judge allowed the claim. Unfortunately the learned judge did not state the facts on which he found the circumstances reasonable in that case.
In Tajuddin Sheikh Daud v. Wong Kim Yin [1989] 2 CLJ 237; [1989] 2 CLJ (Rep) 546, the plaintiff was transferred from the General Hospital to Fatima Hospital against medical advice. The claim for the expenses incurred at the Fatima Hospital was allowed. Based on the evidence adduced before him, Peh Swee Chin J (as he then was) found that:
Because of the grossly inadequate attention and rather inadequate treatment, coupled with a great deal of apprehension as to the possible computation of his right leg which Dr. Mathews had told him in General Hospital, the plaintiff was simply quite entitled to try to seek great recovery from his injuries and reduce his residual disabilities by discharging himself from General Hospital and admitting himself to Hospital Fatima.
According to Chin Fook Yen JC (as he then was) in Peraganathan Karpaya v. Choong Yuk Sang & Anor [1996] 1 CLJ 622, an appeal against this judgment of Peh Swee Chin J was dismissed. It must have been by the Supreme Court. Unfortunately, we do not have the benefit of a written judgment of the appellate court and, therefore, we do not know the grounds for the decision.
In Chong Kam Siong v. Herman Baharuddin [1995] 2 CLJ 413, the plaintiff who met with an accident in Johor Bahru sought treatment at a private hospital in Singapore. Counsel for the defendant argued that the plaintiff was not entitled to compensation for hospital expenses as claimed as he acted unreasonably in discharging himself from a government hospital and not giving the medical personnel at the government hospital in Johor Bahru a chance to treat him.
On the question whether a plaintiff was entitled to medical treatment in a private hospital, James Foong J said:
…. I am of the view that the yardstick to determine whether a claimant is entitled to medical expenses expended by him in a private hospital of his choice rather than seeking treatment from a government hospital where it is practically free, is not on whether the government hospital at that material time could or could not provide adequate care and attention to him.
The learned judge held that the plaintiff was entitled to seek medical treatment at a private hospital. The learned judge also held that because of the proximity and linkage to Singapore it was not unreasonable for a person who suffers injuries as a result of a road accident in the state of Johore to seek medical treatment in Singapore.
Chin Lin Soon lwn. Mad Daud Mat Zain & Satu Lagi [1996] 1 LNS 198; [1996] MLJ U 346 is another case involving an accident in Johore and the plaintiff sought medical treatment in Singapore. Haidar J (as he then was) held:
Mengenai kos perubatan di Singapura pula, saya berpendapat bahawa SP1 berhak mendapat rawatan yang sebaik-baiknya bagi kecederaan yang dialami oleh beliau dan memandangkan bahawa Singapura adalah berdekatan dengan Johor, saya berpendapat kos perubatannya di Singapura boleh dituntut oleh SP1.
In short, he was of the same view of James Foong J in Chong Kam Siong (supra).
Lim Wee Heong dan Satu Lagi lwn. Nai Wah Hing dan Satu Lagi [1996] 1 LNS 232; [1996] MLJ U 394 is another Johore case. The plaintiff was rushed to a government hospital but two days later, at his request, transferred to a private hospital for treatment. Mohd Ghazali H (as he then was), inter alia held:
Saya tidak dapat menerima desakan peguam pihak defendan bahawa perbelanjaan perubatan hospital swasta yang dituntut seharusnya dikurangkan sebanyak satu pertiga. Plaintif kedua telah meninggalkan hospital awam tersebut dan membawa bersamanya plaintif pertama apabila ia berpendapat rawatan yang ia terima daripada hospital awam itu tidak sempurna dan tidak memuaskan baginya; ia telah menjelaskan ia khuatir kakinya akan dikerat dan berpendapat ada kemungkinan kakinya dapat diselamatkan dengan rawatan yang lebih rapi di hospital lain. Dalam keadaan demikian, saya berpendapat adalah munasabah baginya membawa anaknya sekali untuk menerima rawatan bersamanya di hospital lain. Saya berpendapat apa yang telah dinyatakan di dalam kes Tan Sia Bak v. Mooi Kim Ming & Anor merupakan dikta sahaja dan soalan sama ada ianya terpakai hendaklah tertakluk kepada fakta yang terdapat di dalam sesuatu kes dan tidak seharusnya dipakai secara am. Memandangkan demikian, saya membenarkan tuntutan plaintif pertama bagi perbelanjaan perubatan hospital swasta tersebut tanpa apa-apa pengurangan.
It should be noted that the learned judge did not say that he considered it an absolute right of a person to seek medical treatment at a private hospital and get compensated in full for it. Instead he considered the reasons why the plaintiff got himself discharged from the government hospital and went to the private hospital and he found the reasons to be reasonable.
Romuloo Appalasamy & Anor v. Tan Seng Kee & Anor [2000] 2 CLJ 611 is another High Court of Johor Bahru case. In that case, after the accident, the respondent (plaintiff in the Sessions Court) was admitted to the Sultanah Aminah Hospital and was treated for 32 days. The respondent then sought treatment at Mount Elizabeth Hospital in Singapore for 67 days. On the question whether the medical expenses incurred at the private hospital in Singapore, Sulong Matjeraie JC (as he then was), confirming the judgment of the Sessions Court judge, allowed it in full.
The learned judicial commissioner considered the following factors in coming to the conclusion that he did:
(1) Although the respondent had spent 32 days in Johor Specialist Hospital his condition was still critical;
(2) Although there was a gazetted Nephrologist at the General Hospital Johor, the respondent was not sent there as the General Hospital did not have the machines;
(3) The Johor Specialist Hospital could not treat patient with renal wound;
(4) The respondent did not stay at Mount Elizabeth Hospital for any longer period than necessary
The learned judicial commissioner concluded:
Applying the authorities herein before provided by the judgments of the learned James Foong J in Chong Kam Siong v. Herman bin Baharuddin and the unreported case of Chin Lin Soon v. Mat Daud bin Mat Zain & Anor (JBHC CS No. 23-151-1993) as decided by Haidar J (as he was then), which with respect this court prefer to follow, the respondent should be given the opportunity to get the best medical treatment available. This is his basic right and because of the proximity of Singapore to Johor it is therefore not unreasonable for the respondent to go to Mount Elizabeth Singapore to seek treatment. He has produced the necessary invoices for the expenses incurred, which again are also not unreasonable and as such should be fully paid by the appellant.
Even applying solely the principle of reasonableness on the claim of medical expenses incurred in private hospital, this court is of the view that as the Johor Specialist Hospital cannot treat patient with renal wound and although the General Hospital may have a gazetted Nephrologist but as it did not have the necessary machine, it is only reasonable for the respondent to go to Mount Elizabeth Hospital Singapore, where they have the necessary expertise and facilities. Further, the fact that the respondent was unconscious for more than 30 days at the Johor Specialist Hospital and for the other reasons outlined above it is only reasonable that he be allowed to go to Mount Elizabeth Hospital, Singapore.
As can be seen, while the learned Judicial Commissioner said that he preferred the view expressed by James Foong J in Chong Kam Seng (supra) and Haidar J (as he then was) in Chin Lim Soon (supra), the learned Judicial Commissioner also applied “the principle of reasonableness” and, on the facts, found that it was reasonable, under the circumstances for the respondent (in that case) to seek treatment at the private hospital in Singapore and he also found, as a fact, that the expenses incurred was reasonable.
In Suriyati Takril v. Mohan Govindasamy & Anor [2001] 2 CLJ 101, another Johor Bahru High Court case, Abdul Malik Ishak J had occasion to consider the issue again. In that case, the Sessions Court, inter alia, awarded the appellant RM3,000 for the appellant’s cost of a knee replacement surgery at a government hospital although the appellant requested for the surgery at a private hospital. The learned judge relied on Yaakub Foong bin Abdullah (supra) and Chong Kam Siong (supra) and held that “a victim of a road accident need only show a semblence of reasonableness to be entitled to seek medical treatment at a private hospital”. The learned judge also found the RM11,000 as recommended by two private specialists for the costs of the appellant’s knee replacement surgery at a private hospital was reasonable. From the judgment it appears that the only reason why the appellant wanted the surgery to be done in a private hospital was because “it could be done fast.”
It is to be noted that even amongst cases where the full amounts for medical expenses at private hospitals were allowed, there exists two approaches. The first is that a person has an absolute right to seek medical treatment at a private hospital and get compensated in full for it. He does not have to prove that the reasons for his seeking medical treatment at a private hospital is reasonable, or that the expenses incurred is reasonable. This is the approach taken by James Foong J in Chong Kam Seng (supra) and Haidar J in Chin Lin Soon (supra).
On the other hand, the other approach is that plaintiff is entitled to be compensated in full for medical expenses in a private hospital if it is reasonable. The question then is: what is it that should be reasonable? Is it the reasons for seeking medical treatment at a private hospital or the amount charged by the private hospital and claimed by the plaintiff or both? In Yaakub Foong bin Abdullah (supra), Shankar J. appears to have considered the reasons for getting treatment at a private hospital. In Tajuddin bin Shaik Daud (supra), Peh Swee Chin J very clearly considered the reaosns for getting treatment at a private hospital, in particular “the grossly inadequate attention and rather inadequate treatment coupled with a great deal of apprehension as to the possible amputation of his right leg….” Similarly, in Lim Wee Heong (supra) and in Romuloo Appalasamy & Anor (supra) Mohd Ghazali J and Sulong Matjeraie JC respectively, also considered the reasons for seeking medical treatment at a private hospital. From these cases it appears that once the court is satisfied that the reasons for seeking medical treatment at a private hospital is reasonable, then the amount charged by the hospital and claimed by the plaintiff should be allowed in full. However, Sulong Matjeraie did mention that based on the invoices produces, he was also satisfied that the expenses incurred was also reasonable. The courts do not appear to consider whether even if the reasons for seeking medical treatment at a private hospital is reasonable, the amount charged and claimed is reasonable, taking into consideration the “normal” charges for similar treatment in other private hospitals.
I shall now consider “the other line of cases,” ie, where the claim is not allowed at all or where only part of the claim is allowed. In Pengarah Institut Penyelidikan Perubatan & Anor v. Inthra Devi & Anor [1987] 2 CLJ 420; [1987] CLJ (Rep) 275 (SC), the trial judge had, inter alia, awarded RM80,000 as general damages and RM46,152 as cost of plastic surgery and RM10,500 as cost of psychiatric therapy at a private clinic. On appeal, the Supreme Court disallowed both the awards in respect of plastic surgery and psychiatric therapy as the treatment was available in any government hospital and they should be regarded as absorbed in the award for general damages.
In Mooi Kim Ming & Anor v. Tang Sia Bak [1988] 2 CLJ 797; [1988] 2 CLJ (Rep) 30 (HC), the second plaintiff had discharged himself from the government hospital against medical advice and had admitted himself into a private hospital on the same day. Anuar J (as he then was) held that the second plaintiff’s action of discharging himself from a government hospital and readmitting himself into a private hospital could not be regarded as unreasonable. The reason given by the learned Judge was that the plaintiff “did so apparently to get better treatment at Hospital Fatimah.” He therefore allowed the claim for the medical expenses incurred by him for the treatment at Fatimah Hospital, the same hospital in issue in the instant appeal.
But, Abdul Malek Ahmad J (as he then was) in Harcharan Singh Saudagar Singh v. Hassan Ariffin [1990] 2 CLJ 393; [1990] 2 CLJ (Rep) 99 (HC), pointed out that the case under discussion went up to the Supreme Court under the name of Tang Kia Bak v. Mooi Kin Meng & Anor, Supreme Court Civil Appeal No. 249 of 1987. According to Abdul Malek Ahmad J the Supreme Court held that “where a plaintiff transfers himself from the general hospital to a private hospital on his own, he should only be entitled to one-third of the amount claimed.” Unfortunately we did not have the advantage of reading the judgment of the Supreme Court.
In Harcharan Singh Saudagar Singh v. Hassan Ariffin [1990] 2 CLJ 393; [1990] 2 CLJ (Rep) 99 after the accident, the plaintiff was immediately rushed to Teluk Intan District Hospital and then taken by ambulance to the Ipoh General Hospital. There he was told that his leg might have to be amputated. His family immediately transferred him to a private hospital. The private hospital is Fatima Hospital, the same hospital as in the instant case.
Abdul Malek Ahmad J (as he then was) held that, as for medical expenses, since the plaintiff had transferred himself from the General Hospital to a private hospital on his own accord, the award must be reduced. How much was it reduced to? The headnote says that only two-thirds of the amount claimed was allowed. The judgment on that point, with respect, is quite difficult to follow even though my understanding is that only one-third was allowed, following Tang Kia Bak v. Mooi Kim Ming & Anor (Supreme Court Civil Appeal No. 249 of 1987.
In a subsequent case of Peraganathan Karpaya v. Choong Yuk Sang & Anor [1996] 1 CLJ 622 Chin Fook Yen JC cited Harcharan Singh Saudagar Singh’s (supra) case as awarded one-third of the amount claimed only. I take it that Abdul Malek Ahmad J had awarded one-third of the amount claimed in Harcharan Singh Saudagar Singh’s (supra) case.
The next case is Peragnathan Karpaya (supra). In this case the plaintiff who was unconscious was brought to Teluk Intan District Hospital after the accident. His father arranged for a transfer to Fatima Hospital (again the same hospital in question) after being informed that the plaintiff’s leg was to be amputated and his request to transfer to Ipoh General Hospital was turned down. Chin Fook Yen JC held:
It is my opinion that when the Court is called upon to determine whether or not the expenses incurred in a private hospital should be allowed in such cases, it should not rely on medical advice solely as such, but whether in this particular circumstances of the case, the hospital concerned is ready and able to provide adequate facilities, expertise and treatment to the patient. In this connection, Dr. Awtar Singh (DW2) testified “There is nothing in the records to indicate that the (plaintiff’s) leg was to be amputated. If such advice was given it would be recorded in the medical records. In normal cases, where the District Hospital cannot handle the case, it will be referred to General Hospital Ipoh, as the latter has a Resident Orthopaedic Surgeon.” In the instant case, it turned out that there was no necessity to have the plaintiff’s leg amputated. The plaintiff had not produced any evidence to satisfy the Court that the state of affairs existed in T/I Dt. Hospital then to give rise to such apprehension. The case of Tajuddin and this case are distinguishable. The claim of RM11,629.90 is therefore reduced to RM4,000 (round figure).
The next case is another Johor Bahru case and that is the case of Ng Aik Kian & Anor Siah Loh Sia [1997] 2 R 1996). In that case, the plaintiff was admitted to the Hospital Sultanah Aminah for less than an hour and initial treatment was provided by the nurse. No evidence was adduced to show that Hospital Sultanah Aminah had no facilities like that of a private hospital. Abdul Malik Ishak J held:
It would be most unfair for this Court to speculate whether the treatment accorded by Hospital Sultanah Aminah was inadequate as there was no evidence adduced in that direction.
Following Peraganathan Karpaya (supra), the learned judge awarded one-third of the amount claimed. However, we have seen that in a subsequent case, Suriyati Takril v. Mohan Govindasamy & Anor (supra), the learned Judge appears to have changed his mind on the issue.
In Chong Chee Khong & Anor v. Ng Yeow Hin [1997] 4 CLJ Supp 17, learned counsel for the defendant submitted that the court should allow only one-third of the amount claimed for medical expenses at a private hospital. The learned counsel relied on Peraganathan Karpaya (supra). RK Nathan JC (as he then was) had this to say:
On principle, I accept and endorse the view expressed by my learned brother, Chin Fook Yen JC. I decline to follow the decision in Chong Kan Siong v. Herman bin Baharuddin Mallal’s Digest 609 (May 1992) relied on by the plaintiff, where according to the editor’s note, the learned Judge is reported to have allowed a claim of RM43,070 which was equivalent to the sum spent by the plaintiff who discharged himself form a Government hospital in Johor Bahru and had himself admitted to a Singapore hospital. His Lordship is reported to have held that the hospital in Singapore should be treated like other private hospitals in Malaysia and thereby allowing for the full medical expenses.
The District Government hospitals of today are equipped with sufficient manpower and equipment to treat victims of accidents. However, if further expertise or sophisticated equipment are required in a particular case, the victim is invariably sent by ambulance to the main referral centre in the State. Therefore it cannot be gainsaid that treatment from Government hospitals is second to none. Needless to say that paying patients of private hospitals are accorded personal facilities and accommodation in conformity with their paying status. What should be considered by the Court is the treatment accorded, not the accommodation provided.
In any event, in the case before me, the reason the 1st plaintiff went to the Tawakal Hospital where he expended a sum of RM15,429 was because the University Hospital did not attend to an injury to his right leg. Yet, he did not provide any report or letter from Tawakal Hospital to show that such was indeed the case. A mere assertion without documentary evidence must result in this Court rejecting this claim totally.
The claim for medical expenses at the private hospital was dismissed.
In Hj Ariffin Hj Ismail v. Mohamad Noor Mohamad [2001] 2 CLJ 609, this Court dismissed the claim for medical treatment in London on a number of grounds including that the treatment could have been done in Malaysia.
We see that in this line of cases, there is one judgment of the Supreme Court (Pengarah Institut Penyelidikan Perubatan & Anor. (supra)) which did not allow medical expenses at a private hospital (Fatima Hospital) because the treatment was available at a government hospital. There is another judgment of the Supreme Court (Tan Kia Bak (supra) ) that allowed only one third the amount claimed because the plaintiff transferred himself to a private hospital (also Fatima Hospital) on his own accord. There is also a judgment of this Court (Hj. Ariffin Hj. Ismail, supra ) which dismissed the claim for medical expenses in London, on the ground, inter alia, that the treatment could have been done in Malaysia. High Court Judges have also been following Tan Kia Bak (supra) and awarded one-third. However, where only a mere assertion of the expense incurred was made without documentary evidence, RK Nathan JC rejected the claim totally (Chong Chee Khong (supra) ).
It is interesting to note that both the cases that had gone up to the Supreme Court (Tajuddin bin Shaik Daud (supra) and Tang Kia Bak (supra) involve Fatima Hospital, the hospital in question in the instant appeal. In the former case the full amount was awarded. In the latter case only one-third was awarded. But, on principle, the two cases seem to me to be reconcilable. True that in Tajuddin bin Shaik Daud (supra), the plaintiff transferred himself to Fatima Hospital against medical advice from the General Hospital, but the learned High Court judge (whose judgment was confirmed by the Supreme Court but we do not have the written judgment of the Supreme Court) found as a fact that under the circumstances the plaintiff was “simply quite entitled” to get himself admitted to Fatima Hospital. In Tang Kia Bak (supra) the reason for the transfer is not known and the Supreme Court awarded one-third. So, there is really no conflict in principle as far as the two judgments of the Supreme Court are concerned. Even the other Supreme Court judgment in Pengarah Institut Penyelidikan Perubatan (supra) is also reconcilable: if the treatment is available at the government hospital, then the plaintiff is not entitled to seek medical treatment at a private hospital.
All the other cases from both lines, except for two High Court judgments, seem to follow the same principle ie, a plaintiff is not entitled to seek medical treatment at a private hospital if the treatment is available at the government hospital or if the treatment is not inadequate. Such allegation must be proved in every case.
I have mentioned earlier that there are two High Court decisions that say that a claimant is entitled to medical expenses expended by him in a private hospital of his choice as a matter of right. The cases are Chong Kam Seng (supra) and Chin Lin Soon (supra). From the earlier discussion of the authorities, in particular, in view of the three decisions of the Supreme Court ie, Institut Penyelidikan Perubatan & Anor (supra), Tang Kia Bak (supra) and even Tajuddin bin Shaik Daud (supra) and the judgment of this Court in Hj. Ariffin Hj. Ismail, not to mention the judgments of the High Court, that view clearly cannot stand.
In my view, if a person is spending his own money, he has every right to seek medical treatment wherever he wishes. But, when he is claiming from somebody else in the form of damages, it is a different matter. The question of reasonableness cannot be separated from the issue of quantum of damages. It is a matter of principle that the quantum of damages awarded must be reasonable.
I also do not think that “the semblence of reasonableness” test advocated by Abdul Malek Ishak J in Suriyati Takril v. Mohan Govindasamy & Anor, being the only case that talks about such test, as far as I can ascertain, can stand.
To summarise my view on the issue, every person has a right to seek medical treatment at a hospital of his choice be it at a government hospital or at a private hospital. But, when it comes to awarding damages for such treatment, if the treatment is sought at a government hospital, the full amount expended and paid by the person should be awarded. But, if he seeks treatment at a private hospital, he has to prove, first that he is justified to seek treatment at a private hospital and, secondly, the amount incurred is reasonable. Regarding the first hurdle that he has to cross:
(a) He must prove that that particular treatment is not available at the government hospital either due to the unavailability of the necessary equipment or qualified doctors or other sufficient reasons; or
(b) He must prove that though the treatment is available at a general hospital, it is not available within a reasonable period considering the urgency of the treatment. This may be due to the congestion at the government hospital or for other sufficient reasons; or
(c) He must prove that that the treatment at the government hospital though available, is grossly inadequate. This may be due to lack of trained doctors in that particular field or for some other good reasons. As pointed out by RK Nathan JC in Chong Chee Kong (supra) with whom I agree, we are concerned with treatment, not accommodation.
If the court is not satisfied that the plaintiff is justified to seek treatment at a private hospital then, depending on the facts and the circumstances of each case, the court should either dismiss the claim altogether as was done by the Supreme Court in Pengarah Institut Perubatan & Anor (supra) and by this court in Hj Ariffin Hj Ismail (supra) or award an amount not exceeding one-third of the expenses as was done by the Supreme Court in Tang Kia Bak (supra). It must be noted that the one-third is nowhere fixed by any written law. It is a matter of practice. If it is shown that in a particular case, even one-third is excessive, considering the expenses that otherwise would have been incurred in a government hospital, an amount less than one-third may be awarded.
Now, assuming that the plaintiff has crossed the first hurdle and the court is satisfied that the plaintiff is justified in seeking medical treatment at a private hospital, the plaintiff must prove that the expenses incurred and the amount claimed is reasonable taking into consideration normal charges at other local private hospitals. The court may award what it considers to be a reasonable amount which may even be the full amount claimed.
Even though this case does not concern treatment at a private hospital in Singapore, in view of the number of cases, all at High Court level, particularly from Johor, that involve treatment at private hospitals in Singapore, something has to be said about it. The courts in Johor have been treating the treatment in private hospitals in Singapore as equivalent to treatment in local private hospitals for one reason only: proximity between Johor and Singapore. In my view, that is overlooking other relevant factors. No one can deny that the cost of living in Singapore is higher, salaries are higher, rentals are higher than in Malaysia. No one can deny that one Singapore dollar is more than double the value of the Malaysian Ringgit.
So, in the case of treatment at a private hospital in Singapore, it must be proved to the satisfaction of the court as in the case of treatment at a private hospital locally. Then, it must be proved that the treatment is not available at private hospitals locally, or for some sufficient reasons, the treatment at a private hospital locally is inadequate. In other words, it is the same test as that applicable to justify treatment at a private hospital locally, except that the test is applied to local private hospitals instead of a government hospital.
If the court finds that the plaintiff is not justified to seek medical treatment at a private hospital in Singapore, but is justified to seek medical treatment at a private hospital locally, the court should only award an amount similar to that which would be awarded had the plaintiff sought medical treatment at a local private hospital.
But, if the court is satisfied that the plaintiff is justified in obtaining medical treatment in Singapore, then the court should consider the reasonable amount to be awarded which may be the full amount claimed or less.
In the instant appeal, even though the learned Judge in his grounds of judgment did not refer to the facts leading to the transfer of the respondent from the Ipoh General Hospital to Fatima Hospital but appears to have imported his personal knowledge regarding the expenses charged by Fatima Hospital, there is ample evidence to show that the respondent was justified in obtaining medical treatment at the Fatima Hospital. The respondent was hospitalised for 73 days at the Ipoh General Hospital where he underwent one major operation to his hand. No operation was done to the plaintiff’s leg at the Ipoh General Hospital from the date of admission on 15 October 1982 until the date of his discharge on 26 December 1982. Indeed only after he was discharged from the Ipoh General Hospital that he on 30 December 1982 (4 days after the discharge) was admitted to Fatima Hospital. There muscle flap and skin graft operation was done to his right leg and he was discharged on 10 February 1983. He was again readmitted to Fatima Hospital on 25 April 1983 and underwent a vasculorised pedicle fibular graft and bone graft operation to bridge the bone gap in the right tibia. He was discharged on 23 July 1983. On 17 December 1984 he was again readmitted at the Fatimah Hospital on 17 December 1984. A third operation was done to remove screws, dead bone and necrotic tissue from the right leg. Garamycin beads were inserted along the infected right tibia. He was discharged on 4 February 1985. Altogether he was hospitalised at Fatimah Hospital for 183 days.
During his stay at the Ipoh General Hospital of 73 days, no operation was done to his leg. Instead, he was discharged to follow up weekly at the clinic only for wound inspection.
So, there is ample evidence that he was justified in seeking further treatment at the Fatimah Hospital after his discharge from the General Hospital. Regarding the amount, it was agreed by both parties. In the circumstances, had liability been found in the respondent’s favour, he should have been awarded the full amount of RM15,028 for medical expenses.
The other point argued was that the learned judge should not have awarded the sum of RM10,000 as damages for loss of earning capacity. The reason forwarded was that five years after the accident the respondent started working and was earning more than before the accident. This is what the learned judge said in his judgment.
“As for claim for loss of earning capacity, it cannot be awarded for taking the place of loss of future earnings where the latter is not justifiable by evidence. However as a mining worker for many years, he did not seem to have done any other type of work, and with the mining industry being on an irretrievably sharp decline, there is a residual risk, I am satisfied, the plaintiff will find himself somewhat handicapped to get work that would give him a good income as a mining worker, what with the weakness of the right leg, stiffness of the right ankle and some slight shortening. I award a sum of $10,000 as damages for loss of earning capacity.”
From the respondent’s own evidence, he was earning RM512 per month before the accident. After the accident he stopped working for 5 years and 8 days. He resumed work on 22 October 1987 as a tractor driver with one Chai Yew Kee, getting RM18 per day but later increased to RM20 per day. He worked for about 26 days a month. After that he worked for Kinta Amang Company getting a basic salary of RM600 and was paid allowance when working outside. He was getting between RM800 to RM900 a month. On 1 January 1990 he went to work with Peking Tin Mine getting RM30 a day plus RM100 allowance per month and a further 30 as food allowance. He worked for 26 days a month. Then he went to work with a company called Lad & Tun at Batu Gajah. There he was paid RM700 a month with overtime allowance of RM200 per month. After that he went back to work with Peking Tin Mine he was paid RM30 per day and food allowance of RM200 per month, also as a tractor driver.
I am of the view that, even if we have dismissed the appeal on liability, we would have allowed the appeal on the issue of loss of earning capacity. This is because the respondent who, at the time of the accident was a tractor driver was able to work and indeed worked as a tractor driver with a number of employers after the accident and was earning more than before the accident. In the circumstances I do not think that he had suffered any loss of earning capacity. The appeal is allowed with costs here and in the court below. The deposit is refunded to the appellant.
My brother Mohd. Noor Ahmad had read this judgment and had agreed with it. My brother Abdul Aziz Mohamad will prepare a separate judgment.

SALEHA HUSSIN lwn. AB WAHID NASIR & YANG LAIN

MAHKAMAH TINGGI MALAYA, KUALA LUMPUR
GUAMAN NO: D5(D8)-22-1060-1997
[2004] 2 CLJ 204
HAKCIPTA: Karya sastera – Pelanggaran – Drama berasaskan skrip plaintif disiarkan di televisyen tanpa kebenaran plaintif – Sama ada hakcipta plaintif dilanggar – Persamaan di antara skrip plaintif dengan skrip drama yang disiarkan – Sama ada persamaannya substantif – Sama ada defendan berpeluang meniru skrip plaintif – Sama ada plaintif berhak mendapat perintah-perintah seperti dipohon – Akta Hakcipta 1987, ss. 3, 7 10, 13, 25, 26, 36, 37

Plaintif adalah seorang pensyarah dan penulis sambilan. Defendan pertama adalah seorang penerbit drama. Beliau juga pengarah defendan kedua yang merupakan sebuah syarikat yang terlibat dalam penerbitan perfileman. Defendan ketiga adalah sebuah syarikat berhad berkaitan dengan penyiaran televisyen. Plaintif telah menulis sebuah cerpen bertajuk “Zuriat” dan cerpen tersebut telah disiarkan dalam akhbar Berita Minggu. Selepas itu plaintif telah menulis skrip berdasarkan cerpen tersebut bagi tujuan penerbitan drama televisyen defendan ketiga. Skrip tersebut bertajuk “Pemburu Mimpi”. Pada akhir tahun 1989 plaintif telah menyerah satu salinan skrip tersebut kepada defendan ketiga melalui defendan pertama. Ketika itu defendan pertama berkhidmat sebagai pegawai yang bertanggungjawab atas perkara yang berkaitan dengan penerbitan drama televisyen di defendan ketiga. Walau bagaimanapun atas persetujuan kedua belah pihak, drama tersebut tidak diteruskan. Pada bulan Oktober 1997 plaintif telah mendapati bahawa defendan kedua telah, tanpa kebenaran plaintif, menerbitkan drama televisyen yang bertajuk “Zuriat” yang ditayangkan di siaran televisyen defendan ketiga. Maka plaintif memulakan tindakan ini terhadap defendan-defendan atas alasan bahawa mereka telah melanggar hakcipta plaintif. Plaintif memohon, antara lain, untuk (1) perintah injunksi melarang defendan-defendan daripada mengeluarkan semula sebarang bentuk drama TV tersebut melainkan dengan kebenaran bertulis plaintif (2) menghantar serah semua salinan dan barangan yang telah melanggar hakcipta plaintif dan (3) gantirugi.
Diputuskan:
[1] Plaintif adalah seorang warganegara dan penduduk tetap Malaysia. Maka mengikut s. 3 Akta Hakcipta 1987 (‘Akta’) beliau adalah orang berkelayakan di bawah Akta tersebut. Keterangan adalah jelas bahawa skrip tersebut ditulis oleh plaintif. Skrip plaintif itu adalah satu karya sastera yang disebut dalam ss. 7 dan 10 Akta. Sebagai penulisnya, beliau adalah penciptanya seperti yang ditafsirkan oleh s. 3 Akta. Di bawah ss. 10 dan 26 Akta, plaintif sebagai pencipta berhak mendapat perlindungan hakcipta dan pemilik hakcipta. Sebagai satu karya sastera, s. 13 Akta memberi perlindungan eksklusif kepada plaintif. Perlindungan juga diberi oleh s. 25 Akta.
[2] Seksyen 36 Akta menyebut bahawa hakcipta adalah dilanggar apabila seseorang itu melakukan atau menyebabkan sebarang orang lain melakukan, tanpa lesen daripada pemilik hakcipta, satu perkara yang dikawal oleh hakcipta. Skrip plaintif bukan lagi diperingkat “concept” atau “idea”. “Concept” atau “idea” itu telah ditulis sebagai cerpen dan sebagai skrip drama. Apa yang perlu dilihat ialah persamaan antara skrip plaintif dan skrip drama defendan pertama dan sama ada defendan pertama berpeluang untuk meniru skrip plaintif. Persamaan bukan semestinya persamaan dari segi perkataan. Seksyen 13 Akta melindungi pengeluaran semula dalam apa-apa bentuk jua.
[3] Adalah jelas bahawa terdapat persamaan-persamaan plot, watak dan skrip di antara skrip plaintif dengan skrip drama defendan pertama. Terdapat juga persamaan dalam penggunaan perkataan “Zuriat”. Persamaannya substantif. Persamaan yang sebegitu banyak dan penting tidak boleh berlaku secara kebetulan. Ia semestinya disebabkan oleh perbuatan meniru. Daripada keterangan yang dikemukakan, defendan pertama memang mempunyai peluang yang secukupnya untuk meniru skrip plaintif. Dengan itu, hujahan bertulis defendan pertama dan kedua yang hanya mengatakan tentang ketidak persamaan skrip plaintif dengan skrip drama defendan pertama tidak boleh diterima. Kesimpulannya plaintif telah berjaya membuktikan pelanggaran hakciptanya oleh defendan pertama.
[4] Defendan kedua turut bertanggungan atas pelanggaran hakcipta skrip plaintif itu. Seseorang yang melanggar hakcipta orang lain adalah bertanggungan kepada pemilik hakcipta itu walau pun dia tidak bersalah atau tidak tahu tentang pelanggaran hakcipta tersebut. Lagipun, defendan kedua adalah syarikat kepunyaan defendan pertama dan defendan pertama adalah pengarahnya.
[5] Pembelaan defendan ketiga bahawa perjanjian yang dimasukinya dengan defendan pertama mengesahkan defendan pertama sebagai pemilik hakcipta drama TV tersebut tidak boleh diterima. Plaintif bukan satu pihak dalam perjanjian itu. Dengan itu, defendan ketiga turut melanggar hakcipta plaintif itu. Sama ada defendan ketiga mempunyai suatu kausa tindakan berasingan terhadap defendan kedua untuk mendapat indemniti adalah suatu perkara berasingan yang tidak boleh diputuskan memandangkan tiadanya tuntutan pihak ketiga antara defendan ketiga dengan defendan kedua. Kesimpulannya, defendan ketiga juga bertanggungan kepada plaintif.
[6] Seksyen 37(1) Akta dengan jelas memperuntukkan bahawa apabila terdapat pelanggaran hakcipta, injunksi adalah suatu remedi yang boleh diberi. Memandangkan fakta dalam kes ini dan penemuan-penemuan yang telah dibuat, defendan-defendan memang patut dihalang daripada menyiarkan, menayangkan, mengedarkan atau mengeluarkan semula dalam sebarang bentuk drama TV tersebut melainkan dengan kebenaran plaintif. Maka perintah injunksi seperti dipohon diberikan. Perintah kedua seperti dipohon juga diberikan.
[7] Ketiga-tiga defendan adalah pelaku-pelaku tort bersama dan hanya satu jumlah gantirugi yang patut diberi di bawah s. 37(1) Akta yang boleh disebut sebagai “gantirugi am”. Gantiruginya ialah pampasan bagi kerugian yang dialami oleh plaintif yang merupakan bayaran yang sepatutnya diterima olehnya jika skripnya itu diterima untuk dijadikan drama TV. Ianya adalah bayaran yang dibayar oleh penerbit drama itu kepada penulis skrip. Harga skrip untuk tayangan setengah jam yang dikatakan oleh plaintif antara RM2,000 hingga RM3,500 adalah terlalu tinggi dan tidak boleh diterima. Keterangan saksi-saksi defendan-defendan bahawa harga adalah di antara RM800 hingga RM1,000 bagi satu episod setengah jam boleh diterima memandangkan mereka telah lama menjual dan membeli skrip-skrip. Dengan memakai harga RM1,000 bagi satu episod maka untuk 13 episod yang dibuat oleh defendan-defendan pertama dan kedua jumlahnya ialah RM13,000. Tetapi mengambil kira faktor-faktor lain seperti tekanan perasaan yang dialami oleh plaintif akibat pelanggaran hakciptanya itu, maka gantirugi sebanyak RM20,000 di bawah s. 37(1) Akta patut diberikan. Untuk gantirugi tambahan di bawah s. 37(2) Akta, jumlah sebanyak RM50,000 adalah berpatutan.
Dilaporkan oleh Usha Thiagarajah

Case(s) referred to:
Chopman v. Lord Ellesmere & Ors [1932] 2 KB 431 (dirujuk)
Corelli v. Gray TLR (1913) (dirujuk)
Dunia Muzik WEA Sdn Bhd & Anor v. Koh Tay Eng [1986] 1 LNS 85; [1987] 2 MLJ 356 (dirujuk)
Hayward v. Thomas [1982] 1 QB 47 (dirujuk)
LB (Plastics) Ltd v. Swiss Products Ltd FSR (1979) (dirujuk)
Logman Malaysia Sdn Bhd v. Pustaka Delta Pelajaran Sdn Bhd [1987] 1 CLJ 588; [1987] CLJ (Rep) 760 HC (dirujuk)
Lotus Development Corporations v. Ong Seow Pheng [1997] 1 SLR 484 (dirujuk)
Macmillan Publishers Ltd v. Thomas Reed Publications Ltd FSR (1993) (dirujuk)
Mansek v. Valley Printing Co [1906] 2 Ch 441 (diikuti)

Legislation referred to:
Civil Law Act 1956, s. 3(1)
Copyright Act 1987, ss. 3, 7(1), 8(1), 10, 13, 25, 26, 36, 37(1), (2)
Copyright Act 1911 [Eng], s. 13
Counsel:
Bagi pihak plaintif – Ahmad Edham (Abdulwani Mohamad); T/n Zulpadli & Edham
Bagi pihak defendan pertama & kedua – Noor Hadi Sallehon; T/n Hadi & Co
Bagi pihak defendan ketiga – SG Yeoh; T/n Bustaman & Co

PENGHAKIMAN
Abdul Hamid Mohamad HMP:
Mengikut penyataan tuntutan paintif, plaintif adalah seorang pensyarah dan penulis sambilan. Defendan pertama adalah seorang penerbit drama. Defendan kedua adalah sebuah syarikat sendirian berhad yang terlibat dalam penerbitan perfileman. Defendan ketiga adalah sebuah syarikat berhad yang aktiviti utamanya adalah berkaitan dengan penyiaran televisyen.
Mengikut plaintif, plaintif telah menulis sebuah cerpen bertajuk Zuriat dan cerpen tersebut telah disiarkan dalam akhbar Berita Minggu dalam bulan Disember 1979. Selepas itu plaintif telah menulis skrip berdasarkan cerpen tersebut bagi tujuan penerbitan drama televisyen oleh defendan ketiga. Skrip tersebut diberi tajuk “Pemburu Mimpi”.
Untuk tujuan penerbitan drama televisyen itu, plaintif telah menyerah sesalinan skrip drama tersebut yang telah dibaiki kepada defendan ketiga melalui defendan pertama pada akhir tahun 1989 yang ketika itu sedang berkhidmat sebagai pegawai yang bertanggungjawab berkaitan dengan penerbitan drama televisyen di defendan ketiga. Walau bagaimanapun atas persetujuan kedua belah pihak drama tersebut tidak diteruskan.
Pada bulan Oktober 1997, plaintif telah mendapati bahawa defendan kedua telah, tanpa kebenaran plaintif, menerbitkan drama televisyen yang bertajuk “Zuriat” yang ditayangkan di siaran televisyen defendan ketiga pada setiap hari Isnin, Selasa, Rabu dan Khamis bermula pada 6 Oktober 1997. Plaintif mengatakan bahawa bahagian penting daripada idea, kandungan ceritanya malah dialognya menyamai cerpen, skrip drama dan skrip drama yang dibaiki yang ditulis oleh plaintif. Plaintif mengatakan bahawa defendan-defendan telah melanggar hakcipta plaintif dan memperturunkan butiran-butiran pelanggaran hakcipta seperti berikut:
(a) Jalan cerita dan idea drama TV tersebut menyamai jalan cerita cerpen, skrip drama dan skrip drama yang dibaiki plaintif.
(b) Plot-plot yang terdapat dalam drama TV tersebut menyamai plot-plot yang terdapat dalam cerpen, skrip drama dan skrip drama yang dibaiki, plaintif.
(c) Teknik imbasan yang terdapat dalam drama TV tersebut menyamai teknik imbasan yang terdapat dalam cerpen, skrip drama dan skrip drama yang dibaiki, plaintif.
(d) Sebahagian daripada dialog dan lain-lain perkara dalam drama TV tersebut menyamai keadaan yang terdapat dalam cerpen, skrip drama dan skrip drama yang dibaiki, plaintif.
Plaintif memohon perintah-perintah:
(a) Defendan-defendan, pekerja-pekerja atau agen-agennya dilarang daripada menyiarkan, menayangkan, mengedarkan atau mengeluarkan semula dalam sebarang bentuk drama TV tersebut melainkan dengan kebenaran bertulis plaintif atau warisnya;
(b) Defendan-defendan hendaklah menghantar serah (deliver up) semua salinan dan barangan yang telah melanggar hakcipta plaintif dan berada dalam jagaan defendan-defendan;
(c) Gantirugi am;
(d) Gantirugi contoh (exemplary damages);
(e) Satu “Inquiry” bagi menetapkan jumlah gantirugi ke atas pelanggaran hakcipta atau atas pilihan plaintif satu “account of profit” ditetapkan;
(f) Kos tindakan ini;
(g) Faedah ke atas (c), (d) dan (e) di atas sebanyak 8% setahun daripada tarikh penghakiman sehingga penyelesaian penuh,
(h) Relif-relif lain yang mahkamah yang mulia rasa patut dan sesuai.
Ketiga-tiga defendan memasukkan pembelaan. Ringkasnya, defendan pertama dan defendan kedua menafikan nyataan dan tuntutan plaintif. Defendan ketiga, selain daripada menafikan nyataan dan tuntutan juga mengatakan bahawa ia (defendan ketiga) telah memasuki satu perjanjian dengan defendan kedua pada 17 Jun 1997 di mana defendan kedua telah mengesahkan bahawa defendan kedua adalah pemilik hakcipta drama “Zuriat” tersebut dan defendan kedua bersetuju menyerah hakciptanya mengenai drama tersebut untuk antara lain, penyiaran televisyen.
Perbicaraan kes ini telah mengambil tempoh yang panjang kerana, terutamanya, masalah mencari satu kaedah yang boleh dipersetujui semua pihak bagaimana keterangan saksi-saksi hendak dikemukakan, disoal balas dan disoal semula. Ini kerana, mengikut kaedah biasa, adalah amat rumit sebab, antara lain, setiap saksi terpaksa dirujuk berulang-ulang kali kepada kandungan cerpen, skrip drama dan skrip drama yang dibaiki untuk memberi pendapatnya. Ini bererti mahkamah akan terpaksa menulis bahagian-bahagian tersebut berulang-ulang kali untuk mengetahui sesuatu komen itu adalah mengenai sesuatu bahagian, ayat atau perkataan, apabila membaca nota itu kemudiannya. Akhirnya, dipersetujui bahawa saksi-saksi memberi kenyataan saksi walaupun keterangan lisan juga diambil, dengan seberapa ringkas yang boleh. Mahkamah juga telah menghabiskan satu setengah hari untuk menonton kesemua 13 episod drama itu.
Selepas semua itu selesai dan kedua pihak dikehendaki mengemukakan hujah bertulis, atas persetujuan mereka, terdapat pula kelewatan bagi pihak peguam defendan pertama dan kedua, khususnya, untuk menyediakan hujah bertulisnya. Ini, antara lain, kerana peguam defendan pertama dan kedua tidak dapat menghubungi anak guamnya yang berada di Johor Bahru. Hanya, setelah mahkamah memutuskan untuk memberi keputusan tanpa hujah bertulis peguam defendan pertama dan kedua, barulah ianya difailkan. Mahkamah menangguh tarikh keputusan untuk meneliti hujah-hujah bertulis peguam defendan pertama dan kedua.
Akhirnya mahkamah memberi keputusannya bahawa ketiga-tiga defendan “liable” dan memberi penghakiman kepada plaintif terhadap kesemua mereka. Setelah mendengar hujah-hujah mengenai perintah yang patut dibuat, mahkamah memerintahkan:
1) injunksi dikeluarkan seperti prayer (a) perenggan 10.12;
2) perintah hantar serah seperti dalam perenggan (b), perenggan 12.12 dalam masa dua bulan;
3) gantirugi sebanyak RM20,000 dan gantirugi tambahan sebanyak RM50,000, kedua-duanya terhadap ketiga-tiga defendan secara bersama dan berasingan.
4) Kos kepada plaintif terhadap ketiga-tiga defendan.
5) Faedah sebanyak 8% atas 3(a) dan (b) dari tarikh penghakiman sehingga pembayaran sepenuhnya.
Sebelum memberi alasan-alasan saya, eloklah disebut bahawa dalam alasan penghakiman ini saya tidak akan memperturunkan bahagian-bahagian berkenaan bagi cerpen, skrip drama dan skrip drama yang dibaiki mahu pun pendapat setiap saksi, saksi pakar atau bukan, mengenai setiap suatu bahagian atau ayat atau perkataan yang dipertikaikan itu. Berbuat demikian mungkin akan menjadikan alasan penghakiman ini beratus-ratus muka surat panjangnya. Maka saya hanya akan memberi alasan-alasan saya mengenai sesuatu topik mengapa saya membuat keputusan fakta yang saya buat.
Oleh sebab tidak terdapat banyak kes seperti ini yang sampai ke mahkamah, maka saya akan memperturunkan terlebih dahulu, dengan seberapa ringkas, peruntukan-peruntukan undang-undang mengenainya.
Seksyen 6 Akta Hakcipta 1987 memperuntukkan:
6. Subject to this Act, no copyright shall subsist otherwise than by virtue of this Act.
Seksyen 7, antara lain, memperuntukkan:
7 (1) Subject to this section, the following works shall be eligible for copyright:
(a) literary works;
(b) musical works;
(c) artistic works;
(d) films;
(e) sound recordings; and
(f) broadcasts.
(2) Works shall be protected irrespective of their quality and the purpose for which they were created.
(3) A literary, musical or artistic work shall not be eligible for copyright unless:
(a) sufficient effort has been expended to make the work original in character; and
(b) the work has been written down, recorded or otherwise reduced to material form.
Seksyen 8, antara lain, memperuntukkan:
8 (1) The following derivative works are protected as original works:
(a) translations, adaptations, arrangements and other transformations of works eligible for copyright; and
(b) collections of works eligible for copyright which, by reason of the selection and arrangement of their contents, constitute intellectual creation.
(2) Protection of works referred to in subsection (1) shall be without prejudice to any protection of the existing works used.
Seksyen 10, antara lain, memperuntukkan:
10 (1) Copyright shall subsist in every work eligible for copyright of which the author or in the case of a work of joint authorship, any of the authors is, at the time when the work is made, a qualified person.
(2) Copyright shall also subsist in every work which is eligible for copyright and which:
(a) being a literary, musical or artistic work or film or sound recording is first published in Malaysia;
(b) being a work or architecture is erected in Malaysia or being any other artistic work is incorporated in a building located in Malaysia;
(c) being a broadcast is transmitted from Malaysia.
(3) Notwithstanding subsections (1) and (2), copyright shall subsist, subject to this Act, in every work eligible for copyright if the work is made in Malaysia.
Seksyen 3, seksyen tafsiran, antara lain memperuntukkan, tafsiran “adaptation”, “author”, “broadcast”, broadcasting service”, “copy”, “derivative work”, “literary work”, material firm”, “qualified person”. Saya hanya akan memperturunkan yang lebih berkenaan:
“adaptation” includes any of the following, that is to say:
(a) in relation to a literary work, a version of the work (whether in its original language or a different language) in which it is converted into a dramatic work;
(b)…
(c)…
(d)…
(e)…
(f) in relation to a literary or artistic work, a version of the work (whether in its original language) or a different language in which it is converted into a film;
“author”,:
(a) in relation to literary works, means the writer or the maker of the works;
(b)…
(c)…
(d)…
(e)…
(f)…
(g) in relation to any other cases, means the person by whom the work was made.
“copy” means a reproduction of a work in written form in the form of a recording or film, or in any other material form;
“derivative works” means works mentioned in paragraphs (a) and (b) of subsection (1) of section 8;
“literary work” includes:
(a) novels, stories, books, pamphlets, manuscripts, peotical works and other writings;
“material form”, in relation to a work or a derivative work, includes any form (whether visible or not) of storage from which the work or derivative, or a substantial part of the work or derivative work can be reproduced;
Seksyen 13, antara lain, memperuntukkan:
13(1) Copyright in a literary, musical or artistic work, a film, or a sound recording shall be the exclusive right to control in Malaysia:
(a) the reproduction in any material form;
Seksyen 25, antara lain, memperuntukkan:
25 (1)…
(2) Subject to this section, where copyright subsists in a work, no person may without the consent of the author, or, after the author’s death, of his personal representative, do or authorize the doing of any of the following acts:
(a) the representation of the work, by any means whatsoever, under a name other than that of the author; and
(b)…
(3)…
(4) The author or, after his death, his personal representative may exercise the rights conferred by this section notwithstanding that the copyright in the work is not at the time of the act complained of, vetted in the author or personal representative, as the case may be.
(5) Any contravention or threatened contravention of this section in respect of a work shall be actionable at the suit of the author of the work or, if he is dead, at the suit of his personal representative as a breach of a statutory duty.
Seksyen 26, antara lain, memperuntukkan:
26(1) Copyright conferred by section 10 shall vest initially in the author.
Seksyen 36 memperuntukkan:
36 (1) Copyright is infringed by any person who does, or causes any other person to do, without the licence of the owner of the copyright, an act the doing of which is controlled by copyright under this Act.
(2) Copyright is infringed by any person who, without the consent of licence of the owner of the copyright, imports an article into Malaysia for the purpose of:
(a) selling, letting for hire, or by way of trade, offering or exposing for sale or hire, the article;
(b) distributing the article:
(i) for the purpose of trade; or
(ii) for any other purpose to an extent that it will affect prejudicially the owner of the copyright; or
(c) by way of trade, exhibiting the article in public.
where he knows or ought reasonably to know that the making of the article was carried out without the consent or licence of the owner of the copyright.
Kembali kepada keterangan plaintif. Beliau telah menulis cerita “Zuriat” dalam bentuk cerpen. Ianya disiarkan dalam Berita Minggu pada 15 Julai 1979. Selepas itu beliau mengolahnya menjadi skrip drama televisyen dengan tajuk yang sama. Ini diserahkan kepada Bahagian Drama TV RTM pada 13 Disember 1986. Kemudian beliau bertanya seorang penilai skrip di bahagian Drama TV RTM yang bernama Nurhalim mengenai skripnya. Nurhalim berkata bahawa ceritanya itu tergantung, tiada akhirnya dan jika mahu diterbitkan sebagai drama TV, plaintif perlulah mengolahnya atau memanjangkan ceritanya. Oleh itu plaintif telah menambah satu episod lagi bertajuk “Wali” sebagai sambungan kepada “Zuriat” dan menyerahkannya kepada Nurhalim. Tiada berita diterima selama tiga bulan. Selepas itu plaintif mengambil balik skrip itu daripada Nurhalim. Selepas itu plaintif menambah satu episod lagi yang diberi tajuk “Pertemuan”. Beliau memberi secara ringkas perjalanan cerita ketiga-tiga episod itu. Mengenai episod “Zuriat”:
Untuk episode pertama berjudul ZURIAT, ceritanya sama dengan plot yang terdapat dalam cerpen ZURIAT – mengisahkan Sarjan Johan meninggalkan isteri pertamanya, Hendon dan lima anak perempuan hasil perkahwinan itu setelah mendapat anak lelaki hasil perkahwinan kedua dengan Natijah… Lima belas tahun kemudian, dia terbaca dalam sebuah akhbar, berita kejayaan anak-anak perempuannya itu. Dia pun tersedar akan kesilapannya dan menyesal kerana mengabaikan tanggungjawabnya dengan membiarkan anak-anak dan bekas isteri tuanya itu hidup menderita.
Hendon terpaksa bekerja keras untuk membesarkan anak-anaknya. Dia juga merasa kecewa kerana anak-anak lelakinya yang seramai 7 orang itu, ada yang gagal dalam pelajaran, ada yang terencat akal dan yang lain pula masih kecil. Johan termenung memikirkan bagaimana dia boleh menyara anak-anaknya itu sedangkan tidak lama lagi dia akan bersara wajib. Namun dia cuba mententeramkan perasaannya dengan berkata yang penting baginya ialah zuriat lelaki bagi mempastikan keturunannya tidak pupus.
Mengenai episod “Wali”:
Episod kedua skrip drama TV ini adalah sambungan daripada episode pertama yang berjudul ZURIAT itu. Dalam episode WALI, watak anak-anak perempuan Johan diperkembangkan lagi. Cerita bermula dengan memperkenalkan Halina, anak perempuan Sarjan Johan yang ketiga dengan bekas isteri tuanya Hendon. Halina mahu bernikah dengan seorang pemuda bernama Zambri. Halina yang berkelulusan akauntan dari luar negeri dan bertugas di Bank Negara menghadapi masalah untuk mencari bapanya Johan untuk menjadi walinya. Meskipun kakak-kakaknya berjaya mengesan bapa mereka Johan yang kini telah menetap di kampung halamannya, Pendang Kedah tetapi Johan menyepikan diri. Akibatnya, Kadi terpaksa mengiklankannya di akhbar. Halina mendesak kakak-kakaknya pergi ke Pendang tetapi kakak-kakaknya tidak dapat melupakan perbuatan bapa mereka membiarkan mereka menderita. Mereka enggan pergi. Dalam episode ini penonton diberitahu bahawa Dr. Hamimah sangat aktif dalam politik manakala Hayati pula adalah seorang gadis yang sangat kental setnangatnya dan ingin membuktikan kebolehannya sama taraf dengan lelaki dalam bidang kejuruteraan. Cerita ini diakhirkan apabila Halina menerima surat daripada Johan, membenarkan dia bernikah. Mesej yang hendak disampaikan kepada penonton ialah, meskipun Islam menetapkan bapa mewalikan pernikahan anak perawannya tetapi untuk menjadi wali seseorang bapa mesti cukup lima syarat. Syarat kelima ialah adil. Tetapi kita di Malaysia sudah lupa kepada syarat yang kelima ini.
Mengenai episod “Pertemuan”:
Episod ketiga adalah sambungan daripada episode kedua, WALI. Setelah bernikah, Halina telah pergi ke Pendang untuk berbaik-baik dengan bapanya Johan. Seterusnya, Halina berjaya memujuk Johan datang ke Kuala Lumpur untuk dipertemukan dengan adik-beradiknya yang lain. Tetapi apabila sampai ke Kuala Lumpur, Sarjan Johan mendapati anak-anaknya yang lain masih tidak dapat memaafkan perbuatannya membiarkan mereka menderita. Sikap mereka sangat dingin terhadapnya. Johan juga terdengar cakap-cakap mereka yang memedihkan hatinya. Dia merasa amat kecewa lalu pulang semula ke Pendang. Sementara itu dalam episode ini juga Hayati, anak perempuan kedua Johan yang menjadi jurutera perunding telah bertemu dengan Ariff, seorang usahawan berjaya, anak kepada seorang jutawan terkenal. Pertemuan pertama secara tidak sengaja ini membawa kepada pertemuan kedua kerana Hayati terpaksa mewakili bosnya menghadiri mesyuarat penting di Syarikat Ariff. Tujuan saya memasukkan kisah cinta ini semata-mata untuk terus mencengkam minat penonton muda.
Kemudiannya, plaintif telah menyerahkan ketiga-tiga skrip drama tersebut kepada Ketua Unit Drama defendan ketiga (TV3), Cik Rohani Yusoff dalam bulan Oktober 1989. Selepas itu Cik Rohani Yusoff telah memperkenalkan plaintif kepada Encik Salleh bin Joned, seorang penilai skrip defendan ketiga. Selepas diperkenalkan, plaintif bekerja dengan Encik Salleh selama lebih kurang tiga bulan. Mereka berbincang bagaimana hendak memperkembangkan plot drama tersebut. Encik Salleh telah membuat beberapa salinan skrip-skrip drama tersebut untuk diteliti oleh beberapa orang pegawai atasan defendan ketiga. Plaintif tidak tahu apa yang terjadi kepada salinan skrip-skrip itu dan beliau juga tidak meminta balik salinan skrip-skrip itu. Menurutnya Encik Salleh memberitahunya bahawa mereka bersetuju menerima skrip-skripnya untuk dijadikan drama mini bersiri dan memintanya menambahkan beberapa episod lagi. Beliau bekerja selama tiga bulan selepas itu dan menambahkan tujuh episod lagi, menjadikan sepuluh kesemuanya. Kesemuanya disatukan di bawah satu tajuk, iaitu “Pemburu Mimpi”.
Selepas itu, Encik Salleh membuat beberapa salinan lagi. Plaintif juga tidak tahu apa yang terjadi kepada salinan skrip-skrip itu.
Selepas itu Encik Salleh telah ditugaskan membuat projek lain. Encik Salleh memperkenalkan plaintif kepada defendan pertama dalam bulan Januari 1990. Projek drama bersiri plaintif itu telah diserahkan kepada defendan pertama yang mula bertugas dalam bulan Januari 1990. Plaintif bekerja pula dengan defendan pertama selama lebih kurang sepuluh bulan. Sebelum itu plaintif tidak mengenali atau mengetahui defendan pertama. Mengikut plaintif defendan pertama memberitahunya bahawa defendan ketiga mahukan drama sepuluh episod itu dijadikan empat episod sahaja. Defendan pertama juga memberitahunya bahawa episod pertama yang berjodol “Zuriat” adalah sama dengan episod kedua yang berjodol “Wali”. Beliau bekerja keras sekali lagi untuk memendekkan skrip-skrip itu dan menjadikannya tujuh episod pula. Tajuknya kekal “Pemburu Mimpi”. Plaintif serahkan skrip baru kepada defendan pertama. Tetapi defendan ketiga masih menghendaki ia dijadikan empat episod juga.
Selepas itu plaintif tidak berjaya menemui defendan pertama lagi, walaupun beliau menulis nota-nota dan surat kepadanya sebelum beliau pergi untuk menemuinya. Skrip-skrip terkini juga ditinggalkan untuk diletak di atas meja defendan pertama. Plaintif juga menyertakan cerpen “Zuriat”.
Tetapi, setiap kali plaintif pergi untuk menemuinya, walau sebelumnya plaintif menghantar nota-nota dan surat mengenai perjumpaan-perjumpaan itu, plaintif tidak dapat menjumpainya.
Sebelum pergi menunaikan fardhu haji, plaintif menghubungi defendan pertama melalui talipon. Dalam percakapan itu, defendan pertama berkata beliau ingin menulis semula cerita itu. Plaintif menjawab buatlah tetapi mesti mendapat persetujuannya terlebih dahulu sebelum skrip itu boleh diterbitkan. Selepas beliau balik daripada mengerjakan fardhu haji, defendan pertama telah menyerahkan kepadanya skrip drama TV “Pemburu Mimpi” yang ditulisnya semula. Mengikut plaintif beliau menjadi sangat marah apabila membacanya kerana defendan pertama telah “merobek-robekkan” ceritanya, menyebabkan mesejnya hilang dan yang tinggal hanyalah cerita yang superfisial. Beliau memulangkan skrip itu kepada defendan pertama tanpa membuat apa-apa pindaan kerana beliau tidak terfikir bahawa satu hari defendan pertama akan mengambil cerita plaintif dan mengakuinya sebagai hakciptanya (defendan pertama) yang asli.
Selepas itu plaintif berjaya menemui defendan pertama. Plaintif memberitahu defendan pertama bahawa plaintif ingin menarik balik skripnya. Beliau juga mengingatkan defendan pertama supaya jangan sekali-kali mengambil cerita plotnya atau watak-wataknya atau mana-mana bahagian dalam skrip drama TV “Pemburu Mimpi” dan “Zuriat”, jika defendan pertama berbuat demikian plaintif “akan saman” defendan pertama. Defendan pertama menjawab: “You ingat cerita you tu bagus sangat ke? Plaintif menjawab, “bagus tak bagus pun, ini tetap cerita, plot dan watak-watak saya.” Pada masa itu skrip itu masih atas nama plaintif.
Selepas itu plaintif menyimpan skripnya. Beliau juga tidak berjumpa dengan mana-mana penerbit. Beliau berfikir suatu hari kelak beliau akan mengeluarnya dalam bentuk novel.
Pada 6 September 1997 adik plaintif, Hapsah Hussein, yang sedang menonton drama itu di TV3 telah memanggilnya untuk melihat drama itu. Plaintif amat terperanjat melihat drama itu kerana hasil titik peluhnya telah “dicuri” orang. Beliau juga menonton episod-episod berikutnya semasa berada dalam wad di Institut Jantung Negara (IJN).
Akhirnya plaintif memulakan tindakan ini.
Kembali kepada unsur-unsur (ingredients) yang perlu dibuktikan oleh plaintif.
Persoalan pertama yang perlu dijawab ialah sama ada plaintif mempunyai hakcipta terhadap karya-karya itu.
Plaintif adalah seorang warganegara dan penduduk tetap Malaysia. Maka mengikut s. 3 beliau adalah seorang “qualified person”. Keterangan adalah jelas bahawa skrip-skrip berkenaan ditulis oleh plaintif. Skrip-skrip itu adalah satu “literary work” yang disebut dalam s. 7 dan 10. Sebagai penulisnya, beliau adalah pengarangnya (“author”) seperti yang ditafsirkan oleh s. 3. Di bawah s. 10 dan 26, plaintif sebagai pengarang karya-karya itu berhak mendapat perlindungan hakcipta dan pemilik hakcipta keatasnya.
Bagaimanakah hakcipta plaintif dilindungi? Sebagai satu “literary work”, s. 13 memberi perlindungan eksklusif di Malaysia mengenai:
(a) the reproduction in any material form;
(b) the performance, showing or playing in public;
(c) the broadcasting… of the work or substantial part thereof, either in its original or derivative form.
Perlindungan juga diberi oleh s. 25 yang telah diperturunkan lebih awal.
Tanpa membincangnya dengan panjang lebar, adalah penghakiman saya bahawa karya-karya plaintif itu memenuhi semua syarat untuk hakcipta plaintif dilindungi.
Sekarang kita perlu teliti pula sama ada defendan-defendan melanggar hakcipta plaintif itu. Seksyen 36 menyebut bahawa hakcipta adalah dilanggar apabila seseorang itu melakukan atau menyebabkan sebarang orang lain melakukan, tanpa lesen daripada pemilik hakcipta, satu perkara yang perlakuannya adalah dikawal oleh hakcipta.
Dalam kes L.B. (Plastics) Limited v. Swiss Products Limited FSR (1979), satu kes mengenai pelanggaran hakcipta “10 drawings relating to knockdown drawers for furniture industry”, House of Lords, aantara lain, memutuskan:
Held, allowing the appeal:
(1) That the similarity between the plaintiff’s drawers and the defendant’s drawers together with the fact that the defendants had had an opportunity to copy the plaintiff’s drawers, establishing a prima facie case of copying which the defendants had to answer.
(2) (per Lord Hailshan of St. Marylabone): The two designed were so alike as to give rise too the shift in the evidential burden King Features Syndicate Inc. v. O & M Kleeman Ltd. [1941] AC 417 referred to.
(3)…
(4) There can be no copyright in a mere idea…
Lord Salmon, dalam penghakimannya di halaman 165 menjelaskan:
There is, of course, an idea or concept behind every working drawing. It is trite law that there can be no copyright in an idea or concept; but it is hardly necessary to say that this does not mean that once the idea or concept has been translated into a working drawing the drawing cannot enjoy copyright, otherwise it would mean that copyright could not attach to any drawing, for every drawing is the child of an idea or concept.
Dalam kes ini karya-karya plaintif bukan lagi diperingkat “concept or idea”. “Concept” atau “idea” itu telah ditulis sebagai cerpen dan sebagai skrip drama. Ia telah menjadi “drawing”, menggunakan perkataan dalam kes itu. Maka apa yang perlu dilihat ialah persamaan antara keduanya dan peluang bagi defendan pertama untuk meniru karya plaintif.
Mengenai “persamaan”, dalam kes Longman Malaysia Sdn. Berhad v. Pustaka Delta Pelajaran Sdn. Bhd. [1987] 1 CLJ 588; [1987] CLJ (Rep) 760 (HC), satu kes mengenai pelanggaran hakcipta sebuah buku yang diterjemahkan daripada bahasa Inggeris kepada bahasa Malayu. Gunn Chit Tuan J (pada masa itu), antara lain, memutuskan:
Held: (1) PI as a whole was original and protected by copyright under Copyright Act 1969 and a substantial part of P1 was copied not because of the physical amount of the reproduction but because of the substantial significance of that which was copied. What the court had to consider was the quality rather than the quantity of the pirated parts reproduced.
Dalam kes Macmillan Publishers Ltd. v. Thomas Reed Publications Ltd FSR (1993) p. 455 di mana kurang daripada 1% daripada “almanac” defendan yang mempunyai persamaan, namun mahkamah memutuskan bahawa defendan telah melanggar hakcipta plaintif dalam kes itu.
Persamaan bukan semestinya persamaan dari segi perkataan. Seksyen 13 melindungi pengeluaran semula dalam apa-apa bentuk jua. Dalam kes Corelli v. Gray TLR 1913 p. 116, Mahkamah Rayuan England memutuskan:
Under section 1 of the Copyright Act, 1911 (England – ditambah) the person who is the author and owner of, the copyright in a novel is entitled to an injunction to restrain the performance of a dramatic sketch containing a series of stock incidents in combination which have been taken from the plaintiff’s book, even though no sentence used in the sketch was similar to any sentence used in the book.
Patut diambil perhatian bahawa isi s. 1 Copyright Act 1911 (England), adalah menyerupai peruntukan s. 13 Akta Hakcipta 1987.
Biar apa pun, dalam kes ini kedua-duanya adalah skrip drama.
Sekarang kita lihat pula persamaan-persamaan antara kedua-dua skrip drama itu. Persamaan-persamaan itu boleh dilihat dari segi plot, watak dan skripnya.
Mengenai plot atau jalan cerita, saya berpuashati terdapat persamaan-persamaan berikut:
i) Johan dalam karya plaintif dan Latif dalam karya defendan berkahwin 2 kali.
ii) Perkahwinan pertama Johan/Latif menghasilkan hanya beberapa anak perempuan.
iii) Kesemua anak perkahwinan pertama Johan/Latif berjaya dalam kehidupan dalam bidang professional masing-masing.
iv) Johan/Latif meninggalkan isteri pertama untuk berkahwin kali kedua bagi mendapatkan zuriat lelaki.
v) Johan/Latif berjaya mendapat zuriat lelaki apabila berkahwin untuk kali keduanya.
vi) Jika dibandingkan anak perempuan Johan/Latif, anak lelaki Johan/Latif di perkahwinan keduanya membebankan.
vii) Setelah berkahwin baru, Johan/Latif telah berpindah jauh dan telah terputus hubungan dengan isteri pertama dan anak-anaknya.
viii) Setelah Johan/Latif meninggalkan isteri pertamanya, isteri pertama telah membesarkan anak perempuan mereka sendiri. Hidup mereka juga penuh derita.
ix) Johan/Latif hanya mengetahui kejayaan anak-anak perempuannya melalui akhbar.
x) Setelah mengetahui kejayaan aklak perempuannya, Johan/Latif menghadapi tekanan emosi dan sering membandingkan kejayaan akan perempuan dengan anak lelakinya.
xi) Anak perempuan Johan/Latif daripada perkahwinan pertama cuba mengesan bapa mereka bagi mewalikan perkahwinan mereka. Tetapi bapa mereka sukar dikesan.
xii) Hanya seorang sahaja anak perempuan Johan/Latif daripada perkahwinan pertama mereka, iaitu Halina/Mazlina sahaja yang boleh menerima, yang lain masih mendendaminya.
xiii) Akhirnya, Johan/Latif, telah dipertemukan dengan anak-anak perempuannya dalam satu pertemuan yang tegang.
xiv) Setelah mendapati layanan dingin daripada anak-anak perempuannya, Johan/Latif merasa amat tertekan dan telah mengambil keputusan untuk kembali kekampong.
Mengenai watak, terdapat persamaan-persamaan watak dalam kedua-dua “karya” itu.
i) Watak Bapa – Johan/Latif;
ii) Watak isteri pertama – Hendon/Saerah;
iii) Watak isteri kedua – Natijah/Zaiton
iv) Watak 3 anak perempuan hasil dari perkahwinan pertamanya iaitu Dr. Hamimah/Dr. Marlia, Hayati/Mardiah dan Halina/Mazlina;
v) Watak 2 anak lelaki Johan/Latif hasil dari perkahwinan kedua iaitu Normin/Zambri dan Idros/Zahir;
vi) Watak hero atau protogenis lelaki iaitu Ariff/Foad;
vii) Watak tokoh politik veteran Dato’ Paduka/Puan Seri;
viii) Watak anak perempuan tunggal hasil perkahwinan Johan/Latif bernama Munirah/Zarina;
Persamaan watak Johan/Latif dan adalah seperti berikut:
a. Kedua-duanya berkahwin dua kali;
b. Berkahwin kali kedua kerana ingin mendapat zuriat lelaki.
c. Kesemua anak perkahwinan pertamanya adalah perempuan;
d. Kesemua anak perempuan dalam perkahwinannya berjaya dalam bidang professional masing-masing;
e. Kesemua anak lelaki di dalam perkahwinan kedua tidak menjadi;
f. Kedua-duanya bekerja sebagai anggota beruniform sebelum bersara, Johan bekerja sebagai polis manakala Latif bekerja sebagai askar;
g. Kedua-duanya menceraikan isteri pertama ketika anak bongsunya masih kecil dan langsung tidak pernah melihatnya;
h. Setelah berkahwin lain, kedua-dua telah melupakan terus isteri pertama dan anak sehinggalah mereka dewasa dan berjaya;
i. Kedua-dua hanya menyesal hanya setelah melihat kejayaan anak yang telah ditinggalkan;
j. Kedua-dua mendapat tahu kejayaan anak-anak perempuan mereka melalui akhbar;
k. Apabila mendapat tahu kejayaan anak perempuan daripada perkahwinan pertama, kedua-duanya menyesal dan resah dan isteri kedua-dua mereka menyedari perkara ini.
Persamaan watak isteri pertama Johan/Latif iaitu Hendon/Saerah adalah seperti berikut:
a. Perkahwinan kedua-duanya dengan Johan/Latif tidak mendapat restu keluarga;
b. Kedua-dua adalah isteri pertama Johan;
c. Kedua-dua hanya melahirkan anak perempuan dan telah mengecewakan suami;
d. Kedua-duanya telah ditinggalkan dan kemudiannya telah diceraikan ketika anak bongsu masih kecil;
e. Kedua-dua adalah wanita yang gigih dan telah berjaya membesarkan anak masing-masing sehingga berjaya.
Persamaan watak isteri kedua iaitu Natijah/Zaitun adalah seperti berikut:
a. Kedua-dua mencemburui isteri tua dan iri hati pada anak-anak isteri tua yang berjaya;
b. Kedua-dua terpaksa mengenepikan perasaan kerana menyedari anak-anak perempuan yang dicemburui boleh membantu;
c. Perangai kedua-dua berubah menjadi berlebihan manis apabila menyedari hasil yang boleh didapati dari anak-anak perempuan.
Persamaan watak anak sulung dengan isteri pertama, iaitu Dr. Hamimah/Dr. Marlia adalah seperti berikut:
a. Kedua-dua berkelulusan Doktor Falsafah yang membawa gelaran Dr. pada namanya;
b. Kedua-dua pensyarah universiti;
c. Dianugerahkan pingat cemerlang di atas kecemerlangan usaha mereka;
d. Anugerah pingat cemerlang telah menarik minat pemberita untuk menemubual mereka;
e. Kedua-dua bergiat dalam politk;
f. Kedua-dua menerima anugerah pangkat yang membawa gelaran Dato’.
Persamaan watak anak kedua dengan isteri pertama, iaitu Halina/Mazlina adalah seperti berikut:
a. Kedua-dua dipanggil dengan panggilan Lina oleh keluarga;
b. Kedua-dua digambarkan sebagai alim dan warak;
c. Kedua-dua dikatakan mahu berkahwin, Halina dikatakan mahu berkahwin dengan Arif, manakala Mazlina dengan Fuad sedangkan adik beradik yang lain tidak mahu berkahwin;
d. Kedua-dua mencari bapa mereka bagi mewalikan perkahwinan mereka;
e. Kedua-dua bersifat lembut terhadap bapa mereka dan telah dituduh oleh kakaknya yang lain tidak memahami perasaan mereka;
f. Kedua-dua dahagakan kasih bapa mereka dan tidak mendendami bapa mereka;
g. Kedua-dua gemar mengetuk bilik kakak mereka.
Persamaan watak protoganis lelaki iaitu itu Ariff/Foad adalah seperti berikut:
a. Kedua-dua terlibat dengan perniagaan keluarga;
b. Perhubungan cinta kedua-dua mereka ditentang oleh keluarga;
c. Jumlah anak yang dirancang oleh kedua-dua mereka dengan pasangan adalah sama;
d. Kedua-dua telah meninggalkan pasangan masing-masing dan terpisah;
e. Kedua-dua mengajak pasangan berkahwin sebelum berangkat tetapi telah tidak dipersetujui oleh pasangan masing-masing.”
Selain daripada itu terdapat pula persamaan watak anak lelaki Johan/Latif hasil daripada perkahwinan keduanya:
a. Persamaan watak Normin/Zambri, anak sulung perkahwinan kedua yang hanya belajar setakat tingkatan 3 dan tidak mempunyai kerja tetap;
b. Persamaan watak Idros/Zahir yang terencat akal sejak kecil.
Terdapat juga persamaan watak seorang tokoh politik wanita yang menjadi penaung kepada kerjaya politik Dr. Marlia. Dr. Hamimah iaitu “Dato’ Paduka/Puan Sri”.
Terdapat juga persamaan dari segi dialog:
i. Penggunaan perkataan melihat “bulan dan matahari” bagi menunjukkan bahawa tiada bapa, anak tidak wujud;
ii. Penggunaan perkataan restu dalam kebahgiaan dalam sesuatu perkahwinan
iii. Berkaitan penggunaan perkataan takdir iaitu segala kejadian adalah takdir tuhan;
iv. Dialog berkaitan bantuan anak-anak kepada bapa yang bermaksud bahawa kalaupun taknak bantu kerana dia bapa, bantulah kerana menolong orang;
v. Penggunaan perkataan satu pasukan bola ataupun satu “football team” ketika perbincangan Hayati/Marlina dalam merancang anak dengan pasangan mereka;
vi. Dialog Hayati/Dr. Marlia dalam menyuarakan perasaan dendam terhadap bapa mereka.
Terdapat juga persamaan dalam penggunaan perkataan “Zuriat” dalam karya plaintif dan skrip drama TV defendan pertama.
Dalam “story treatmentnya” dan perjalanan cerita juga terdapat persamaan:
a. pada permulaan episod satu kedua-dua karya, Dr. Marlia/Dr. Hamimah ingin ditemuramah wartawan berkenaan kejayaan cemerlang mereka;
b. Pemberita juga mahu menemui keluarga Dr. Marlia/Hamimah;
c. Ibu kedua-dua Dr. Hamimah dan Dr. Marlia telah ditemubual oleh pemberita;
d. Ketika ditemubual, ibu Dr. Marlia/Hamimah telah ditemuramah berkaitan kejayaan anak-anaknya yang lain;
e. Bapa Dr. Hamimah/Dr. Marlia mengetahui berita kejayaan anak-anaknya melalui laporan akhbar berkaitan temubual;
f. Seterusnya, Johan/Latif berkeluh kesah dan murung;
g. Banyak lagi persamaan lain yang secara terperinci dijelaskan dalam laporan plaintif diekshibit tersebut.
Adalah jelas bahawa terdapat persamaan substantif antara kedua-dua “karya” itu. Persamaan yang sebegitu banyak dan penting tidak boleh berlaku secara kebetulan. Ia semestinya disebabkan oleh perbuatan meniru.
Adakah defendan pertama mempunyai peluang untuk meniru?
Daripada keterangan yang telah dikemukakan, adalah jelas bahawa defendan pertama mempunyai peluang untuk meniru. Skrip plaintif diserahkan kepadanya. Plaintif dan defendan pertama bekerja bersama selama sepuluh bulan untuk membuat perubahan kepada skrip plaintif. Dalam afidavitnya yang diikrarkan pada 27 Februari 2002, perenggan 9, dan dalam afidavitnya yang diikrarkan pada 6 Februari 1998 perenggan 10, defendan pertama mengakui bahawa beliau mempunyai akses kepada karya plaintif bertajuk “Pemburu Mimpi”. Beliau juga mengakui dalam afidavitnya bertarikh 6 Februari 1998, perenggan 10C bahawa tulisan tangan pada skrip plaintif eks. P6 adalah tulisannya. Beliau juga mengakui bahawa beliau telah meneliti dan berbincang dengan plaintif ketika bekerja dengan defendan ketiga.
Kesimpulannya, defendan pertama memang mempunyai peluang yang secukupnya untuk meniru karya plaintif.
Perlu disebut bahawa dalam hujah bertulis peguam defendan pertama dan kedua, hujah yang dikemukakan hanya mengenai ketidak persamaan dalam kedua-dua karya itu. Setelah meneliti hujah-hujah dan butiran-butirannya, saya tidak dapat menerimanya berdasarkan fakta mengenai persamaan-persamaan yang telah saya perturunkan lebih awal.
Kesimpulannya, adalah penghakiman saya bahawa plaintif telah berjaya membuktikan pelanggaran hakciptanya ke atas karya-karya itu oleh defendan pertama.
Bagaimana dengan defendan kedua? Defendan kedua adalah syarikat kepunyaan defendan pertama. Defendan pertama adalah pengarah defendan kedua. Ini diakui oleh defendan pertama dalam afidavitnya yang diikrarkan pada 27 Februari 1998. Defendan kedualah yang telah menerbitkan drama TV “Zuriat” itu. Defendan kedua dalam pembelaan bersamanya dengan defendan pertama mengatakan bahawa “karya skrip drama TV tersebut adalah karya asli defendan pertama dan/atau kedua.” Dengan penemuan fakta yang saya telah buat bahawa karya itu sebenarnya telah ditiru daripada karya plaintif dan bahawa defendan pertama telah melanggar hakcipta plaintif, maka defendan kedua juga turut “liable” atas pelanggaran itu. Dalam kes Mansek v. Valley Printing Co. [1906] 2 Ch. 441, mahkamah memutuskan bahawa seseorang yang melanggar hakcipta orang lain adalah “liable” kepada pemilik hakcipta itu walau pun dia tidak bersalah atau tidak tahu tentang pelanggaran hakcipta tersebut. Fakta kes di hadapan saya ini adalah lebih kuat memandangkan bahawa defendan kedua adalah syarikat defendan pertama dan defendan pertama adalah pengarahnya.
Mengenai defendan ketiga, defendan ketiga telah membangkitkan dua pembelaan, iaitu, pertama, ia bergantung kepada perjanjiannya dengan defendan kedua bertarikh 17 Jun 1997. Mengikut perjanjian itu defendan kedua telah mengesahkan bahawa ia adalah pemilik hakcipta dalam drama bersiri “Zuriat” tersebut dan defendan kedua bersetuju untuk menyerahkan hakciptanya mengenai drama tersebut kepada defendan ketiga untuk penyiaran televisyen. Oleh itu defendan ketiga mengatakan ia mempunyai hak untuk menayangkan 12 episod drama tersebut. Pembelaan kedua ialah bahawa tidak berlaku pelanggaran hakcipta plaintif.
Mengenai pembelaan pertama, perjanjian tersebut adalah antara defendan kedua dengan defendan ketiga. Plaintif bukan satu pihak dalam perjanjian itu. Maka perjanjian itu tidak boleh melindungi defendan ketiga daripada tindakan oleh plaintif jika, dan seperti yang saya telah putuskan, defendan kedua melanggar hakcipta plaintif. Sama ada defendan ketiga mempunyai suatu kausa tindakan berasingan terhadap defendan kedua untuk mendapat indemnity adalah suatu perkara yang berasingan. Dalam tindakan ini tidak terdapat tuntutan pihak ketiga antara defendan ketiga dengan defendan kedua. Maka, saya tidak memutuskan persoalan itu. Kedudukan defendan ketiga adalah seperti yang diputuskan dalam kes Mansek v. Valley Printing Co. (supra). Maka saya dapati defendan ketiga juga “liable”.
Selepas membuat keputusan mengenai liability itu, saya mendengar hujah-hujah mengenai perintah-perintah yang patut dibuat.
Pertama mengenai injunksi. Seksyen 37(1) dengan jelas memperuntukkan bahawa apabila terdapat pelanggaran hakcipta, injunksi adalah suatu remedi yang boleh diberi. Kes-kes Longman Malaysia Sdn. Bhd. v. Pustaka Delta Pelajaran Sdn. Bhd, (supra) dan Dunia Muzik WEA Sdn Bhd & Anor v. Koh Tay Eng [1986] 1 LNS 85; [1987] 2 MLJ 356 adalah misalan-misalan di mana mahkamah di negara ini memberi perintah injunksi dalam kes-kes pelanggaran hakcipta. Memandangkan kepada fakta dalam kes ini dan penemuan-penemuan yang saya telah buat, memanglah defendan-defendan patut dihalang daripada menyiarkan, menayangkan, mengedarkan atau mengeluarkan semula dalam sebarang bentuk drama TV tersebut melainkan dengan kebenaran plaintif. Saya membuat perintah tersebut.
Perintah kedua yang dipohon ialah bahawa defendan-defendan menghantar serah semua salinan dan barangan yang telah melanggar hakcipta plaintif yang berada dalam jagaan defendan-defendan. Seperti dalam kes-kes Longman Malaysia Sdn. Bhd, (supra) dan Dunia Muzik WEA Sdn. Bhd. (supra), perintah itu juga patut diberi. Saya memberi perintah tersebut.
Mengenai gantirugi, soalan pertama yang patut dijawab ialah sama ada ketiga-tiga defendan patut dianggap sebagai “joint tort-feasors” dan hanya satu jumlah diberi kepada plaintif terhadap kesemua mereka. Dalam Mc Gregor on Damages, Edisi 16, di halaman 2086 ada disebut:
(d) Where the defendants are joint wrongdoers and some have acted maliciously or more maliciously than others. Only a single judgment for damages may be entered against joint wrongdoers sued together, the award being for the whole damage suffered by the Plaintiff.
Dalam kes Chopman v. Lord Ellesmere & Ors. [1932] 2 KB 431 (CA), satu kes “libel” Slesser LJ mengatakan:
Damages against joint tortfeasors cannot be divided. The jury have no power to apportion the damages, and, if they did so, judgment cannot be entered against the several defendants for the amount so apportioned: Greenlands, Ltd v. Wilmshurst and London Association for the Protection of Trade (1). But this does not dispose of the matter, for though there must be one set of damages against joint tortfeastors, the authorities to show that such damages are not to be assessed according to the act of the most guilty or the most innocent of the defendants, but according to the aggregate of injury received from their common act….
Lihat juga Hayward v. Thomson [1982] 1 QB 47 (CA) satu kes “libel” dan Lotus Development Corporation v. Ong Seow Pheng [1997] 1 SLR 484.
Berdasarkan nas-nas ini, saya memutuskan bahawa hanya satu jumlah gantirugi yang patut diberi di bawah s. 37(1), yang bolehlah disebut sebagai “gantirugi am.”
Seksyen 37 memperuntukkan dua jenis gantirugi. Pertama, apa yang disebut dalam s. 37(1) sebagai “damages” dan kedua, apa yang disebut dalam s. 37(2) sebagai “additional damages”.
Prinsip mengenai taksiran gantirugi bagi kes pelanggaran hakcipta telah disentuh dalam kes Mokhtar Haji Jamaluddin v. Pustaka Sistem Pelajaran (supra). Gunn Chit Tuan H (pada masa itu) berkata:
For the assessment of damages caused by the breach of the agreement I agreed with counsel for the defendants that compensation cannot be given for any remote and indirect loss or damage sustained by reason of the breach of the agreement. But here the plaintiff was also entitled to damages for infringement of his copyright in the said literary works, and in an action for infringement of copyright the damages have been said to be at large, ie, not limited to the pecuniary loss that can be specifically proved, and the courts have consistently endorsed Lord Esher MR’s pronouncement in Exchange Telegraph Co. v. Gregory (4) that “it is not necessary to give proof of special damage” because “the damages are damages at large.” And in cases where the damages are at large a jury in England (or the judge if the award is left to him) can take into account the motives and conduct of the defendants where they aggravate the injury done to the plaintiff, and where the plaintiff’s proper feelings of dignity and pride have been injured aggravated damages may be awarded.
Kes ini diputuskan sebelum Akta Hakcipta 1987 dibuat. Mungkin kerana itu, dalam kes itu gantirugi tambahan tidak diberi. Pada pandangan saya, jenis gantirugi yang patut diberi selepas Akta Hakcipta 1987 berkuatkuasa adalah seperti yang diperuntukkan oleh Akta itu iaitu “gantirugi” dan “gantirugi tambahan”. Prinsip-prinsip “common law of England” tidaklah boleh dipakai bulat-bulat. Kedua-dua jenis gantirugi yang tersebut itu adalah “undang-undang bertulis yang berkuatkuasa di Malaysia”, seperti yang diperuntukkan oleh s. 3(1) Civil Law Act 1956. Apabila terdapat peruntukan mengenai sesuatu hal dalam undang-undang bertulis yang berkuatkuasa di Malaysia, “common law of England” tidak terpakai. Ini kerap dilupai.
Kembali kepada fakta-fakta yang patut ditimbang dalam menetapkan jumlah gantirugi di bawah s. 37(1) itu.
Bagi ganti rugi di bawah s. 37(1), memandangkan kepada fakta kes ini, gantirugi yang patut diberi ialah pampasan bagi kerugian yang dialami oleh plaintif yang merupakan bayaran yang sepatutnya diterima olehnya jika skrip-skripnya itu diterima untuk dijadikan drama TV. Ianya ialah bayaran yang dibayar oleh penerbit drama itu kepada penulis skrip. Berapakah “harga pasaran” sesuatu skrip pada masa berkenaan?
Mengikut plaintif “harga pasaran” pada masa itu ialah antara RM2,000 hingga RM3,500 untuk satu episod setengah jam tayangan.
Defendan ketiga mengemukakan seorang saksi, Norziah bt. Abdul Aziz, Penolong Pengurus, Bahagian Penjualan Program TV3. Beliau memberi keterangan bahawa harga satu skrip drama TV untuk tayangan setengah jam ialah antara RM800 hingga RM1, 500.
Defendan kedua memberi keterangan bahawa beliau telah menulis skrip drama TV selama lebih daripada 20 tahun dan telah menulis lebih daripada 1000 skrip/episod. Skrip-skrip itu beliau jual kepada TV3 dalam tahun 80-an dan telah diterbitkan oleh TV3. Dalam tahun 80-an beliau dibayar RM800 untuk satu episod setengah jam.
Beliau juga pernah menjual skrip kepada RTM. Bayarannya mengikut berapa minit tayangan. Dalam tahun 80-an dan 90-an bayarannya ialah RM30 seminit dan dalam tahun 2000, RM50 seminit. Beliau mengemukakan dokumen-dokumen untuk menyokong nyataan beliau itu.
Beliau juga pernah menjual skrip kepada penerbit-penerbit swasta. Harganya lebih murah. Untuk drama 90 minit harganya antara RM3,000 hingga RM4,000.
Beliau seterusnya memberi keterangan mengenai penjualan-penjualan skrip olehnya dan mengemukakan resit-resit yang menunjukkan bahawa harga skrip satu episod setengah jam adalah RM600.
Defendan pertama dan kedua juga mengemukakan seorang saksi, Cik Munirah bt. Kadri, seorang Penerbit Drama K.M.S. Vision Sdn. Bhd. Mengikutnya, syarikatnya pernah membeli skrip drama untuk tayangan setengah jam dalam tahun 1995-1996 antara RM800 hingga RM1,000 satu episod. Untuk “orang baru” untuk 13 episod satu jam harganya antara RM10,000 hingga RM12,000. Disoal balas, beliau menjawab bahawa dalam tahun 1996-97 untuk satu skrip tayangan setengah jam harganya ialah antara RM800 hingga RM1,000.
Saya dapati harga skrip untuk tayangan setengah jam yang dikatakan oleh plaintif (antara RM2,000 hingga RM3,500) adalah terlalu tinggi dan tidak boleh diterima. Beliau sendiri mengakui bahawa itu adalah anggarannya sahaja. Beliau sendiri belum pernah menjual satu skrip pun.
Saya dapati keterangan saksi-saksi defendan-defendan lebih boleh diterima. Ini kerana mereka sendiri telah lama menjual dan membeli skrip-skrip. Dan harga yang saya terima adalah antara RM800 hingga RM1,000 bagi satu episod setengah jam.
Untuk perkiraan saya ambil angka 13 episod seperti yang dibuat oleh defendan pertama dan kedua. Jika dipakai harga RM1,000 bagi satu episod, jumlahnya ialah RM13,000. Tetapi, mengambil kira faktor-faktor lain seperti tekanan perasaan yang dialami oleh plaintif akibat daripada pelanggaran hakciptanya itu, maka saya memberi gantirugi di bawah s. 37(1) sebanyak RM20,000, satu angka yang pada pandangan saya sangat berpatutan.
Untuk gantirugi tambahan di bawah s. 37(2), apa yang perlu diambil kira, seperti yang diperuntukkan oleh sub-seksyen itu, ialah:
(a) the flagrancy of the infringement, and
(b) any benefit shown to have accrued to the defendant by reason of the infringement.
“Flagrancy”, terutama sekali oleh defendan pertama dan kedua adalah amat nyata. Beliau telah menerima skrip-skrip plaintif semasa bekerja dengan defendan ketiga untuk menyesuaikannya untuk dijadikan drama TV yang akan disiarkan oleh defendan ketiga. Setelah bekerja dengan plaintif selama beberapa bulan untuk “memperbaikinya”, beliau selepas itu mengeluarkannya atas nama syarikatnya sendiri. Ini satu perbuatan yang amat tidak jujur.
Mengenai “keuntungan” yang diperolehi oleh defendan-defendan, DW1, Cik Norizah bt. Abdul Aziz Penolong Pengarah, Bahagian Penjualan dan Pembelian Program TV3 (defendan ketiga) memberitahu mahkamah bahawa defendan ketiga membeli drama itu (drama yang sudah siap, untuk ditayangkan, bukan skrip) dengan harga RM22,000 satu episod.
Tetapi defendan pertama menjelaskan bahawa defendan kedua cuma menerima RM20,000 untuk satu episod daripada defendan ketiga. Daripada jumlah itu defendan kedua membayar RM15,000 untuk satu episod kepada ABC Communications Sdn. Berhad yang mengeluarkan drama itu. Disoal balas, defendan pertama mengakui bahawa keuntungan keseluruhan defendan kedua bagi drama Zuriat ialah antara RM60,000 hingga RM70,000.
Kesimpulannya, defendan pertama atas dirinya sendiri mendapat RM10,000 untuk skrip drama “Zuriat”. Defendan kedua mendapat keuntungan antara RM60,000 hingga RM70,000. Keuntungan defendan ketiga tidak diketahui, malah saya fikir tidak boleh dibuat anggaran.
Dalam keadaan ini saya memutuskan bahawa gantirugi tambahan sebanyak RM50,000 adalah berpatutan.
Saya juga memerintahkan ketiga-tiga defendan membayar kos plaintif dan faedah pada kadar 8% atas kedua-dua amaun gantirugi itu dari tarikh penghakiman sehingga tarikh pembayaran sepenuhnya.

SETHAMBAL DORAIAPPAH & ANOR v. KRISHNAVANI MUNIANDY
     
COURT OF APPEAL, KUALA LUMPUR
ABDUL HAMID MOHAMAD, JCA;   MOHD GHAZALI YUSOFF, JCA;   FAIZA THAMBY CHIK, J
CIVIL APPEAL NO: W-02-688-98
[2004] 1 CLJ 869

 
SUCCESSION: Will – Validity – Suspicious circumstances surrounding making of will prior to death of testator – Testamentary capacity of testator – Whether trial judge failed to consider material evidence – Whether re-trial required
The deceased/testator testator left behind a wife and young child of about four months at the time of his death. He had died of bone cancer. He purportedly made his will three days prior to his death. In the will he named his mother and brother (the 1st and 2nd appellants respectively) as executors and bequeathed his house to his mother and all moneys in his Employment Provident Fund (‘EPF’) and insurance policies to his child. The respondent was the sole beneficiary under the general legacy but she did not receive anything as there was nothing for distribution under the general legacy. The appellants petitioned for probate at the High Court and the respondent filed two caveats. The respondent also filed a civil suit against the appellants praying for a declaration that the will was void ab initio. The probate action was then consolidated with the civil suit. At the hearing of the trial, the learned judge concluded that the appellants failed to remove the suspicious circumstances surrounding the making of the will and also failed to prove the testamentary capacity of the deceased. The learned judge accordingly dismissed the appellants’ probate petition and allowed the respondent’s claim with costs. Hence, the appellants’ instant appeal.

Held:

Per Abdul Hamid Mohamad JCA

[1] The burden is on the propounder of the will to establish the testamentary capacity and to dispel any suspicious circumstances surrounding the making of the will. The learned judge had taken the same approach and was correct in doing so. However, he erred when he concluded that the respondent failed to remove the suspicious circumstances surrounding the making of the will and that the respondent failed to prove the testamentary capacity of the deceased at the material time.

[2] The only suspicious circumstance surrounding the making of the will was the presence of the three brothers at the same time at the hospital where the deceased was admitted. The fact that the house, which was the only substantial property left by the deceased, was given to the mother was not suspicious. Further, evidence was given to show that the deceased left the house to his mother as it was his mother who had paid the deposit for the house and that was the only amount paid so far for the house. Unfortunately, the learned judge did not consider this factor at all. Also, the learned judge failed to give sufficient weight to the evidence of the solicitor who had prepared the will upon the instructions of the deceased. The solicitor had no personal interest in the matter. He too gave evidence that the deceased had told him that he wanted to leave the house to his mother in view of the deposit paid by her.

[3] The learned judge relied on the medical report that was prepared one year after the death of the deceased. Nothing was mentioned therein about his mental condition. Further, the doctor who gave the medical report was not called to give evidence. It is settled law that very slight testamentary capacity is required for the making of a will. It need not be proved that a testator was in a perfect state of health or that his mind was so clear as to enable him to give complicated instructions. It is sufficient if it is proved that he was able to give the outlines of the manner in which his estate was to be disposed of and that he was able to understand that his instructions to his lawyer in the main had been complied with. In the instant appeal, the estate of the deceased consisted only of his house, his EPF and insurance policy wherein the house was given to his mother, and the EPF and insurance policy to his only child. There was nothing complicated about it.

[Bahasa Malaysia Translation Of Headnotes

Pewasiat simati telah meninggalkan seorang isteri dan anak kecil berumur lebih kurang empat bulan semasa kematiannya. Beliau meninggal dunia kerana kanser tulang dan telah membuat wasiat tiga hari sebelum kematiannya. Dalam wasiatnya itu simati telah menamakan emak dan saudara lelakinya (perayu pertama dan kedua masing-masingnya) sebagai wasi dan mewariskan rumah kepada emaknya dan semua wang dalam Kumpulan Simpanan Wang Pekerja (‘KWSP’) serta polisi-polisi insurans kepada anaknya. Responden adalah benefisiari tunggal di bawah legasi am tetapi beliau tidak mendapat apa-apa kerana tiada apa-apa untuk diagihkan di bawah legasi am tersebut. Perayu-perayu memohon probate di Mahkamah Tinggi dan responden memfail dua kaveat. Responden juga memfail guaman sivil terhadap perayu-perayu memohon deklarasi bahawa wasiat adalah void ab initio dan berikutnya tindakan probate telah disatukan dengan guaman sivil. Pada pendengaran perbicaraan, yang arif hakim mendapati bahawa perayu-perayu gagal melenyapkan keadaan syakwasangka yang menyelubungi pembuatan wasiat dan juga gagal membuktikan keupayaan simati untuk berwasiat. Yang arif hakim dengan itu menolak petisyen probate perayu-perayu dan membenarkan tuntutan responden dengan kos. Perayu-perayu dengan itu telah merayu.

Diputuskan:

Oleh Abdul Hamid Mohamad HMR

[1] Beban adalah atas pengaju wasiat untuk membuktikan keupayaan berwasiat dan untuk melenyapkan apa jua keadaan syakwasangka yang menyelubungi pembuatan wasiat. Yang arif hakim telah mengambil pendekatan yang serupa dan adalah betul dalam tindakannya itu. Bagaimanapun, beliau silap apabila mendapati bahawa responden gagal menyingkir keadaan syakwasangka yang menyelubungi pembuatan wasiat atau gagal membuktikan keupayaan berwasiat simati pada waktu material.

[2] Satu-satunya keadaan syakwasangka yang menyelubungi pembuatan wasiat adalah kehadiran di masa yang sama ketiga-tiga adik beradik pewasiat di hospital di mana pewasiat dimasukkan. Fakta bahawa rumah berkenaan, iaitu satu-satunya harta substantial yang ditinggalkan simati, telah diberi kepada ibunya bukanlah merupakan satu syakwasangka. Lagipun, keterangan telah dikemukakan yang menunjukkan bahawa simati telah mewariskan rumah kepada ibunya kerana ibunya yang membayar deposit bagi rumah tersebut dan itulah sahaja amaun yang dibayar bagi rumah itu setakat ini. Sayangnya yang arif hakim langsung tidak mempertimbang faktor ini. Yang arif hakim juga gagal memberi tekanan yang mencukupi kepada keterangan peguamcara yang menyediakan wasiat setelah diarahkan oleh simati. Peguamcara tidak mempunyai kepentingan peribadi dalam hal ini. Beliau memberi keterangan bahawa simati telah memberitahunya bahawa dia hendak meninggalkan rumah kepada ibunya kerana ibunyalah yang membayar deposit bagi rumah tersebut.

[3] Yang arif hakim bergantung kepada laporan perubatan yang disediakan setahun selepas kematian simati. Tiada apa-apa disebut di dalamnya tentang keadaan mental simati. Selain itu doktor yang menyediakan laporan perubatan itu tidak dipanggil untuk memberi keterangan. Sudah menjadi undang-undang yang terpakai bahawa keupayaaan berwasiat yang sedikit adalah memadai dalam pembuatan wasiat. Tidak perlu dibuktikan bahawa pewasiat berada dalam keadaan kesihatan yang sempurna ataupun bahawa fikirannya sebegitu jelas sehingga ia mampu memberi arahan-arahan yang rumit. Adalah memadai jika ianya dapat dibuktikan bahawa beliau mampu memberi gambaran tentang bagaimana pesakanya patut dibahagikan dan bahawa beliau boleh memahami yang arahannya kepada peguamnya itu pada dasarnya telah dipatuhi. Dalam rayuan semasa, pesaka simati hanya mengandungi rumahnya, KWSP dan polisi insuransnya di mana rumah telah diberikan kepada ibunya dan KWSP dan polisi insurans kepada anak tunggalnya. Semua ini tidak melibatkan apa-apa kerumitan.

Rayuan dibenarkan; kes dibicara semula di hadapan hakim lain berkaitan isu keadaan syakwasangka yang menyelubungi pembuatan wasiat dan keupayaan berwasiat simati.]

Reported by Usha Thiagarajah

Case(s) referred to:

Dr Shanmuganathan v. Periasamy Sithambaram Pillai [1997] 2 CLJ 153 FC (refd)

Lee Ing Chin & Ors v. Gan Yoon Chin & Anor [2003] 2 CLJ 19 CA (foll)

Tho Yow Pew & Anor v. Chua Kooi Hean [2002] 4 CLJ 90 CA (foll)

Tryrell v. Painton [1893] PD 151

Other source(s) referred to:

Williams on Wills, 7th edn, p 35

Counsel:

For the appellant – Hamid Sultan Abu Bakar; M/s Hamid Sultan Loga Chitra & Assocs

For the respondent – Teh Poh Lian; M/s Teh & Assocs

 

JUDGMENT

Abdul Hamid Mohamad JCA:

There has been some confusion in the learned judge’s grounds of judgment regarding the description of the defendants in the High Court and appellants here. In the Petition for Probate No S6-32-392-89, the writ of summons, indeed in all the pleadings, affidavits, judgment and the documents filed in the High Court, Sethambal d/o Doraiappah, the mother of the deceased was described as the 1st defendant and Balasingam a/l M. Veerasamy, the brother of the deceased was described as the 2nd defendant. The notice of appeal, the memorandum of appeal and all the documents filed in this court also describe them that way. So is the heading in the learned judge’s grounds of judgment. However, in the text of the grounds of judgment, the learned judge made a mistake in describing the mother as the 2nd defendant and the brother as the 1st defendant. This is to be found at p. 1 and p. 5 of the grounds of judgment. At p. 1, for example, the learned judge said:

In this purported will, the 1st and 2nd defendants, his (deceased’s – added) brother and mother respectively, are named executors. There are 2 specific legacies:

(a) A dwelling house known as No. 9, Jalan 12/38A, Taman Sri Sinar, Segambut, Kuala Lumpur (the house) bequeathed to the 2nd defendant;…

There is no doubt that by “the 2nd defendant” the learned judge meant the mother but the description of “the 2nd defendant” by him is contrary to what is stated in the headings and texts of all the documents filed in the High Court and in this court. In all those documents” the 2nd defendant” or “the 2nd appellant” is the brother.

In this judgment of ours, we shall refer to the defendants or appellants as they appear in all those documents ie, the mother is the 1st defendant/appellant and the brother is the 2nd defendant/appellant.

Now, the facts. The deceased, Krishnan a/l Veerasamy died of bone cancer at the age of 36 leaving behind a wife (the plaintiff in the High Court and the respondent in this court) and a child of about four months old at the time of his death. He purportedly made a will on 1 August 1983, ie, three days before his death. In the purported will, the 1st and 2nd appellants, the deceased’s mother and brother respectively, were named executors. There were two specific legacies:

(a) a dwelling house known as No. 9, Jalan 12/38A, Taman Sri Sinar, Segambut, Kuala Lumpur which was bequeathed to the 1st appellant (the mother); and

(b) all monies in Employees Provident Fund (EPF) and insurance policies which was bequeathed to his child.

The respondent is the sole beneficiary under the general legacy.

The original purchase price of the house was RM90,000. Even though only the deposit was paid by the deceased, it became fully settled upon his death by an insurance scheme in which he participated. The money in the EPF and the insurance scheme was worth about RM6,000. There was nothing for distribution under the general legacy. In short, the respondent gets nothing.

On 17 November 1989, the appellants petitioned for probate at the Kuala Lumpur High Court – Probate Petition No. S6-32-392-89. The respondent filed two caveats, the first on 30 June 1990 and the second on 13 April 1992. In the meantime, the respondent filed a civil suit against the appellants praying for a declaration that the purported will is void abinitio.

The probate action was consolidated with the civil suit. The learned judge heard both actions “as a contested matter”.

In the civil action, the respondent alleged that:

(1) the purported will was void and of no effect because it was not the will of the deceased;

(2) the purported will was a forgery and the signature of the deceased was obtained by fraud committed by the appellants and deceased’s two other brothers who attested the deceased’s signature on the document.

In the alternative, it was alleged that

(1) the deceased, when executing the purported will, was not of sound mind, memory and understanding;

(2) that the signature was obtained by undue influence.

After a full trial, the learned judge dismissed the appellants’ petition in S6-32-392-89 and allowed the respondent’s claim in S5-22-502-91 with costs.

In his judgment, the learned judge first (as far as the appeal is concerned) dealt with the burden of proof. Referring to various authorities, he concluded that where there are circumstances which excites suspicion, the party propounding the will must “remove such suspicion and to prove affirmatively that the testator knew and approved of the contents of the document, and it is only where this is done that the onus is thrown on those who oppose the will to prove fraud or undue influence or whatever else they rely on to displace the case made for proving the will”, quoting Lindley LJ in Tryrell v. Painton [1893] PD 151.

The learned judge said:

In my opinion the plaintiff’s claim should be separated into two parts. This (sic) first is based on suspicious circumstances surrounding the making and attestation of the purported will and, if so made and duly attested, the deceased had no testamentary capacity at the material time. For this, the suspicious circumstances must first found to be in existence and thereafter, the onus is on the defendants to remove these suspicions. The second is the allegation of fraud and undue influence and towards this, the burden of proof is on the plaintiff. From the authority of Tyrell v. Painton (supra), until the suspicions are removed, the plaintiff need not begin her task of proving fraud and undue influence.

Considering the evidence before him the learned judge concluded that as the appellants had failed to remove the suspicions and to prove testamentary capacity, there was no necessity for him to consider whether fraud or undue influence was proved by the respondent. As the propounders of the will had failed to prove the will itself, he made the orders that he did.

Because of the respondent’s filing of the writ action when there was a petition pending and both actions being heard and considered together, a point was raised about the burden of proof. Learned counsel for the appellants submitted that there is “a fine distinction between the burden of proof in a civil suit seeking a declaration and a petition wherein the petitioner has to prove the testamentary capacity of the deceased. As far as the civil suit is concerned we know that the respondent failed to prove the allegation of fraud, undue influence and coercion and must be dismissed with costs.”

From the cases referred to us, we notice that it seems to be the practice of solicitors in this country to commence writ actions for a declaration that the will is valid or void. In Tho Yow Pew & Anor v. Chua Kooi Hean [2002] 4 CLJ 90 (CA) the executors and trustees first applied for a grant of probate. When it was challenged by the wife the executors and trustees took out a writ to propound the will to have it declared valid. The wife counter-claimed for a pronouncement against the validity of the will. The action was tried. It was against the decision in respect of the writ action that the appeal came up to this court. On the issue of burden of proof, the court, through Gopal Sri Ram JCA said:

In other words if the propounder of a will wishes to succeed in obtaining probate, he must upon challenge being taken establish (a) testamentary capacity and (b) dispel any suspicious circumstances surrounding the making of the will.

In Lee Ing Chin & Ors v. Gan Yoon Chin & Anor [2003] 2 CLJ 19 (CA), the deceased’s daughters brought an action against the executors to have it declared invalid. From the order made by this court granting probate to the executors in Petition for Probate No. 32-36-97, besides dismissing the action, it appears that there was also a petition for probate. The judgment of the court, again written by Gopal Sri Ram JCA dealt at length with the burden of proof. The learned judge, inter alia said:

It is settled law where the validity of a will is challenged, the burden of proving testamentary capacity and due execution lies on the propounder of the will as does the burden of dispelling any suspicious circumstances that may surround the making of the will. However the onus of establishing any extraneous vitiating element such as undue influence, fraud or forgery lies on those who challenge the will in this case the plaintiffs.

In Dr Shanmuganathan v. Periasamy Sithambaram Pillai [1997] 2 CLJ 153 (FC) the plaintiff applied for and, on 16 August 1983, obtained a grant of letters of administration in respect of the deceased’s estate (1st action). The defendant petitioned the High Court at Ipoh for administration of the deceased’s estate (2nd action). On 12 March 1984, the defendant presented a fresh petition in the same High Court, this time for grant of probate in his favour as executor and beneficiary of the deceased’s estate (3rd action). On 21 August 1984, the court ordered the grant of probate. On 15 October 1984 the plaintiff commenced proceedings in the High Court at Kuala Lumpur for the revocation of the order for the grant of probate made by the High Court at Ipoh (4th action). On 21 November 1985 the plaintiff commenced a writ action in the High Court at Ipoh seeking to have the consent order entered by the defendant and a third party declared a nullity (5th action). There was yet another action filed on 26 January 1985 (Probate Civil Suit No. 2105 of 1985 at Kuala Lumpur High Court) for a declaration that the alleged will was a forgery and for an order to revoke the grant of probation in favour of the defendant (6th action). The learned High Court Judge held that the will was genuine and dismissed the plaintiff’s probate action.

The Federal Court criticised the multiplicity of proceedings. However, it is to be noted that the Federal Court in a judgment delivered by Anuar Zainal Abidin (CJ (Malaya)), agreed with the trial judge who ordered the defendant (in the writ action) to begin his case first that is, to prove the will. In other words, even in a writ action, the burden is on the propounder of the will to prove it.

It is clear to us from these authorities that even in a writ action in which the validity of the will is challenged, the burden is on the propounder of the will to establish the testamentary capacity and to dispel any suspicious circumstances surrounding the making of the will.

In this case, the learned judge had taken the same approach and he was correct in doing so. However, whether his conclusion that the respondent had failed to remove the suspicions and to prove testamentary capacity or not is another matter that we will now consider.

The principles of appellate intervention have been dealt with at length by this court in Lee Ing Chin & Ors. v. Gan Yock Chin & Anor (supra). We adopt them and will not repeat except to quote one passage therefrom:

No doubt, an appeal Court will be slow in disturbing a finding of fact recorded by the trial Court based on proper appreciation of evidence but it is also the duty of the appellate Court to disturb it if the burden of proof is not discharged by cogent, positive and acceptable evidence in the light of the law laid down by this Court. More so when there is non-consideration of material evidence and appreciation of evidence is not objective and one sided.

In the instant appeal, the learned judge analysed the “suspicious circumstances” under the heads of “The presence of three brothers at the same time,” “observation of the witnesses” and concluded “The suspicions expressed by the plaintiff, in my opinion, are probably true, and I am not satisfied that the defendants have removed them.”

Under the first head, the learned judge said.

From the evidence adduced, all these three witnesses, DW1, DW2 and DW3, made no prior arrangement to meet during lunch hour on 1 August 1989 at the bedside of the deceased. They all affirmed that they did not see the plaintiff there. According to DW2 and DW3, they happened to visit the deceased at that material time when DW1 brought along the will, entirely on his own volition. Though I agree that it is not unnatural in our Asian customs to visit a close relative gravely ill in hospital at any time, but, surely one can recall the approximate hour of the day given the significance of the event where a will was signed and the testator, a brother, died two days later. Surprisingly none of these witnesses can have such recollection except to state that it was around lunch time. This is strange considering that these witnesses were in employment where observation of working hours and strict hospital visitation period coupled with the unusual incident would have, at least, stimulated one of them to recall the approximate hour of their visit. Flowing from this, if there had been no prior arrangement to meet then who were intended to be the attestators of the purported will? There is evidence that DW1 just happened to walk in when DW2 and DW3 were there. If this was the case, who did DW1 or the testator intend to attest will if DW2 and DW3 were not there? These incongruous circumstances do indeed cast doubts on whether the attestators were actually there when the purported will was alleged to be signed by the deceased.

On the observation of the witnesses on the condition of the deceased at the material time, the learned judge discussed it under two heads ie, first, whether the deceased was with oxygen mask and on a drip and, secondly, the overall physical condition of the deceased. It must be noted in the first place, that the doctor who attended to the deceased “just before his death” was not called as a witness. The doctor is Dr. Ahmad Kamal bin Mohamad.

The learned judge relied on a medical report made on 9 July 1990 the content of which was not agreed even though it was agreed that the maker need not be called. This is one of the grounds raised by learned counsel for the appellant. He drew our attention to other documents pertaining to the condition of the deceased which were not averted too by the learned judge.

We think we should reproduce all the reports in chronological order.

The first, dated 17 August 1989 written by Dr. Ahmad Kamal bin Mohamed, the registrar of the Kuala Lumpur Hospital reads:

TO WHOM IT MAY CONCERN

Dear Sir/Dear Madam,

Re: ENCIK KRISHNAN A/L VEERASAMY

The above named patient was 1st seen at our unit on 13.2.1985 with a diagnosis of Adenoid Cystic Carcinoma of the submandibular salivary gland. Surgery was done for him and the patient was subsequently referred to us for radiotherapy. He was planned for 5,000 cGy of radiation treatment to the neck but the patient stopped treatment after 2,500 cGy and refused further radiation. He was then lost (sic) to follow up after 18.6.86.

On 27.7.89 the patient was referred to us from the Orthopaedic Unit of General Hospital, Kuala Lumpur with n/o backache of 1/12 duration. A bone scan done revealed secondary lesions in the vertebral bones ie, (T4, T5, L2, L3, L4). He was then planned for radiation to the vertebral bone.

On 3.8.89, the patient stopped breathing whilst in the wards and the patient was certified dead on on 3.8.89 at 10.50 a.m.

Thank you.

Regards,

Yours sincerely,

Sgd.

DR. AHMAD KAMAL BIN MOHAMMAD,

Registrar,

Inst. Of Radiotherapy, Oncology,

And Nyuclear Medicine, hospital

Kuala Lumpur.

A year later, on 9 July 1990 the same doctor gave a medical report on the deceased referred to by the learned judge. It reads:

MEDICAL REPORT OF KRISHNAN

A/L VEERASAMY (DECEASED) – RT. 85/713

The following is a Medical Report of the deceased from 2.8.89 till his death on the 3rd August 1989. The patient was actually admitted on 27.7.89 and was in our wards awaiting commencement of radiotherapy to the vertebral bones. On 1.8.89, the patient complained of difficulty in breathing. A Chest X-Ray done on the same day revealed patchy opacities in left upper zone and the right upper, middle and lower zone of the lungs. These were suggestive of lung secondaries but the patient was started on antibiotic treatment with intravenous ampicillin 500 mg. 6 hourly and gentamicin 80 mg 12 hourly. He was also afebrile. This B/P recordings were as follow:

2nd August 1989 3rd August 1989

BP PULSE BP PULSE

5.20 a.m. – 120/70 98 5.30 a.m. – 130/90 120

8.55 a.m. – 130/70 102 9.00 a.m. – 190/120 120

12.40 p.m – 110/70 98 9.30 a.m. – 150/30 110

4.00 p.m. – 120/80 96

8.15 p.m. – 120/80 100

10.40 p.m – 130/90 120

On 3 August 1989 at 10.40am, the patient stopped breathing and was certified dead

Yours sincerely

Sgd.

DR. AHMAD KAMAL BIN MOHAMED

Registrar.

On 22 December 1990, in response to the respondent’s solicitor’s letters, Dr. Gabriel Nonis gave another medical report on the deceased. The report reads:

Re: Medical of Krishnan a/l Veerasamy

I refer to your letters dated 21/11/90 and 12/12/90. I regret and apologise for this late reply.

I have review (sic) the case records of the above named in great detail especially on the 1st day of August 1989. I regret to inform you that the relevant information you are seeking especially on the mental state of the patient is unavailable and undocumented.

The only information available from the medical records on the 1st day of August 1989 is as follows:

CXR (Chest X-Ray) – General patchy opacities

(Is this infection or secondaries?)

But CXR 7.7.89 – Clear.

The above was written by Dr. Ahmad Kamal (Our Registrar then) in his morning rounds. He was the doctor in charge of the ward which the patient was admitted. He then proceeded to order antibiotics that is intravenous Ampicillin 500 mg. QID and Gentamicin 80 mg. Bd. For a duration of one week and ordered for the CXR to be repeated.

The temperature readings of the patient on the 1st day of August 1989 were as follows:

4.00 a.m. – 37°C

8.00 a.m. – 37-1°C

4.00 p.m. – 37-0°C

8.00 p.m. – 37.0°C

12 midnight – 37.0°C

No other information on the patient is available from the medical records.

It should be noted that the only information available from the records as recorded Dr. Ahmad Kamal was:

CXR (Chest X-Ray) – General patchy opacities

(Is this infection or secondaries?)

But CXR 7.7.89 – clear.

On 22 April 1991, again in reply to the respondent’s solicitor’s letter, Dr. J.G. Nonis wrote:

Re: MEDICAL REPORT OF KRISHNAN A/L VEERASAMY

I refer to your letter dated on 15.3.91 regarding the Medical Report of the above named. As I have mentioned in my letter dated on 22.12.90, the Medical Officer-In-Charge of the patient at that time was Dr. Ahmad Kamal who is now pursuing his post graduate degree in Scotland. I wish to also stress that there is no mention of the patient’s mental status in the case notes during that period of admission.

However, he was in the terminal stage of his illness. As such it is reasonable to conclude that he was very ill and his higher faculties were to a certain extent compromised. Hence he was probably not fit to make any important decision.

I hope the above statements would be useful to you.

Note that Dr. J.G. Nonis did not attend to the patient. Neither was he called to be a witness. He had confirmed that “there was no mention of the patient’s mental status in the case notes during that period of admission.”

Then he went on to give an opinion:

However, he was in the terminal stage of his illness. As such it is reasonable to concluded that he was very ill and his higher faculties were to a certain extent compromised. Hence he was probably not fit to make any important decision.

Interestingly, he concluded by saying.

I hope the above statements would be useful to you. (emphasis added).

To us this piece of opinion has little value, if at all. The doctor did not see the patient. He relied on a two-line note recorded by another doctor which says nothing about the patient’s mental status. He was not called as a witness. In any event, even if his opinion is to be taken as the true condition of the deceased, it does little to assist in the determination of the testamentary capacity of the deceased. However, in all fairness to the learned judge, he did not rely on this report.

Still unhappy, the respondent’s solicitor on 7 May 1991, again wrote to Dr. Ahmad Kamal, who was then in Scotland, pursuing his postgraduate studies. The respondent’s solicitor in this letter requested the doctor “to certify whether the deceased was in fact fit on the first of August 1989 for the purpose of signing his alleged Last Will.”

Two things caught our attention. First, the request was made more than two years after the material date. There appears to be no response to that letter which is quite understandable.

Even though the learned judge mentioned generally the existence of other reports, he only specifically mentioned Dr. Ahmad Kamal’s report dated 9 July 1990. That report was made almost a year after the death. As pointed out by Dr. Joel Gabriel Nonis in his letter dated 22 December 1990, the only information available from the medical records were the two lines reproduced earlier and there was no mention of the deceased’s mental state. As Dr. Ahmad Kamal was not called to give evidence. We do not know where the other information was obtained from by him.

However, what the learned judge did was to accept as “accurate” the statement of Dr. Ahmad Kamal as contained in his report of 9 July 1990 on the deceased’s medical condition at the material time. He went on to conclude:

I do not think he (the deceased – added) was well on 1.8.1989. The said medical report recorded him as complaining of difficulty of breathing and secondaries were detected in his lungs. The “secondaries” in the lungs must be associated with cancer in the bone DW1 confirmed that the deceased was suffering from; it had spread to the lungs. This immediately contradicts DW1’s claim that the deceased was “suffering from only bone cancer and not lung cancer…”

For these reasons the learned judge could not accept the evidence of DW2 and DW3 that the deceased was “well”, sat up in bed, had a conversation with them, read the purported will, requested them to attest the will and handed back the will to DW1. The learned judge held that the evidence of DW2 and DW5, was also contradicted by PW2, the brother of the respondent who described the deceased’s condition as follows:

His (the deceased’s) condition was bad; he cannot get out of bed himself; he can’t move his hands and legs and he cannot carry his load. He was very pale. I spoke to him. He said he can’t eat and drink well.

The learned judge said he did not think this portrayal of the deceased’s condition as an exaggeration. He concluded:

With the deceased’s experiencing breathing difficulty, there is probable truth in the assertion by the plaintiff of the presence of oxygen mask on the deceased.

On the question of whether the drip was applied to the deceased the learned judge held that it was in view of the evidence of PW2 (the respondent’s brother) that the deceased was not eating and drinking well and the medical report that the deceased was experiencing breathing difficulty.

On these grounds the learned judge found that the appellants had not removed the suspicions.

Under the heading testamentary capacity the learned judge held that with the severity of the deceased’s physical condition the suspicion of testamentary capacity of the deceased was exceedingly high. He concluded that the deceased’s testamentary capacity had not been established.

We find the judgments of this court in Tho Yow Pew & Anor v. Chua Kovi Hean (supra) and Lee Ing Chin & Ors v. Gan Yook Chin & Anor (supra) of great assistance to us. In Tho Yow Pew, Gopal Sri Ram JCA, delivering the judgment of the court, very clearly stated:

Now the law upon the subject of a testator’s testamentary capacity, we find to be well settled. The decided cases show quite clearly that very slight testamentary capacity is required for the making of a will. The cases in which wills have been held invalid for lack of testamentary capacity involve testators who were utterly insane either upon the finding of the probate court or by reason of an order appointing a committee on the ground of insanity of the testator.

What the law requires to vitiate testamentary capacity is an insane delusion existing at the time of making of the will. This will include insanity at the time of the making or giving instructions for the making of the will. There are numerous authorities on the point. We find it quite unnecessary to deal with all of them here. We would merely refer to three.

In Judah v. Isolyne Bose [1945] AIR PC 174 Lord Goddard when delivering the advice of the Privy Council held that the mere fact that the testatrix was unwell when she executed her will is a long way from saying that she had no testamentary capacity.

In Williams on Wills (7th edn) at p. 35, the editors of this leading text upon the subject make the following statement:

(i) Criterion of sound disposing mind sound testamentary capacity means that three things must exist at one and the same time: (i) The testator must understand that he is giving his property to one or more objects of his regard; (ii) he must understand and recollect the extent of his property; (iii) he must also understand the nature and extent of the claims upon him both of those whom he is including in his will and those whom he is excluding from his will. The testator must realise that he is signing a will and his mind and will must accompany the physical at of execution.

At p. 96 of the report Gopal Sri Ram JCA clarified “suspicious circumstances”:

It is clear from the foregoing passages, in particular from the passages in Theobuld on Wills that suspicious circumstances in the context of wills relate to circumstances surrounding the making of the will, not circumstances surrounding the testamentary capacity of the testator. In other words if the propounder of a will wishes to succeed in obtaining probate, he must upon challenge being taken establish (a) testamentary capacity and (b) dispel any suspicious circumstances surrounding the making of the will.

An illustration of the latter is to be found in the case of Wintle v. Nye [1959] 1 All ER 552 where the solicitor who drafted the will for a 66 year old lady and who had been her legal adviser for several years was a substantial beneficiary under that will. Another illustration is to be found in the case of Sarat Kumari Bibi v. Rai Sakhi Chand [1929] AIR PC 45, where the writer of the will had taken a very active part in its preparation and had obtained a substantial advantage under it.

In that case, this court found that the learned trial judge had addressed his mind to what the learned judge termed as “suspicious circumstances relating to the testamentary capacity of the testator.” “That approach” according to Gopal Sri Ram JCA, “falls well outside both principle and authority. It is a misdirection of law”.

In the instant appeal too, the learned judge appears to have fallen into the same error when he talks about “the suspicion on the testamentary capacity of the deceased…”

Actually, in the instant appeal, the only factor relating to suspicious circumstances surrounding the making of the will is the presence of the three brothers at the same time at the hospital. In view of the order that we will make later, we shall not give our view on it. Again, without making a definite finding, it appears to us that, the fact that the house, the only substantial property left by the deceased, was given to the mother is not suspicious. There is the evidence of DW4 that he had asked the deceased specifically why he wanted to leave the house to his mother. The reason is because it was the mother who had paid the deposit for the house and that was the only amount paid. The fact that the mother had paid for the deposit for the house was corroborated by DW1. Unfortunately, from the judgment, the learned judge, failed to consider this factor at all.

The other factor that the learned judge appears to have failed to consider is that the will was prepared by a solicitor who gave evidence at the trial. He is DW4. To us DW4’s evidence is the most important of all. He is an advocate and solicitor, he had no personal interest in the matter and he gave evidence in court. He very clearly said that the deceased was introduced to him by Balasingam (DW1), a brother of the deceased. Balasingam used to supply stationary to his former firm. He (DW4) said he met the deceased sometime in July 1989 at the General Hospital Kuala Lumpur. He was taken there by Balasingam. He (DW4) said that the instructions to prepare the will was given to him personally by the deceased when he met the deceased at the hospital. Asked about the nature of his conversation with the deceased, he said.

The deceased told me that he wanted to make a will. He told me that he was married and had one child. He wanted to leave his house to his mother, EPF and Insurance on trust for his daughter and the balance of his estate to his wife. I recall that I had specifically asked him why he wanted to leave his house to his mother. He said that he had bought a house with a government loan and that the deposit was paid by his mother. The house was still not completed and if anything were to happen to him he wanted his mother to get the house in view of the deposit paid by her.

Asked to identify the will, he said: “This is the will which was prepared by me on the instructions of the deceased.”

Unfortunately the learned judge, from his judgment, does not appear to consider DW4’s evidence. Had he done so and had he given sufficient weight to it, he might have come to a different conclusion.

In conclusion, on the issue of suspicious circumstance surrounding the making of the will, while we do not make a definite finding, we find that the learned judge had failed to derive proper benefit from the undoubted advantage of seeing and hearing witnesses at the trial and, in reaching his conclusion, had not properly analysed the entirety of the evidence which was given before him – see Lee Ing Chin & Ors v. Gan Yook Chin & Anor (supra).

We now come to the testamentary capacity. On this issue, the learned judge relied mainly on the medical report given by Dr. Ahmad Kamal, prepared one year after the death of the deceased. The doctor was not called to give evidence. It is not known where he obtained the information from, considering that, as stated by Dr. Joel Gabriel Nonis, the only information available from the medical records written by Dr. Ahmad Kamal on the day in question consists of only two lines, reproduced earlier. Dr. Ahmad Kamal’s earlier report dated 17 August 1989, about two weeks after the death of the deceased was nothing more than a history of the treatment. The subsequent report made about one year later, accepted as “accurate” by the learned judge talks about the deceased having difficulty in breathing and that the deceased was “afebrile”, which simply means “having no fever”. Nothing was mentioned about his mental condition.

What the learned judge did was, having accepted the medical report, having made a finding that the secondaries in the lungs “must be associated with cancer in the bone” when the medical report only said “These were suggestive of lungs secondaries;” having made a finding that the deceased was under oxygen mask based on the evidence of the respondent and her brother and the statement in the medical report that the deceased had difficulty in breathing (even though the report says nothing about oxygen mask) and rejecting the evidence of the deceased brothers; having made a finding that the deceased was under a drip, again based on the respondent’s evidence and the medical report which actually says nothing about it, the learned judge concluded that “with the severity of the deceased’s physical condition… the suspicion on the testamentary capacity of the deceased at the material time is exceedingly high” and has not been established.

Coming back to the law. Again our task is made easy by this court’s decisions in the two cases referred earlier. Again we adopt the statement of the law stated therein. The passage from Tho Yow Pew & Anor v. Chua Kooi Hean (supra) reproduced earlier clearly states that very slight testamentary capacity is required for making the will. A passage from the judgment of Macleod CJ in Gordhandas v. Bai Suraj AIR [1921] Bom. 193 reproduced in the judgment of this court in Lee Ing Chin & Ors v. Gan Yook Chin & Ors v. Gan Yook Chin & Anor (supra) is worth repeating:

It is well settled law now that it need not be proved that a testator, in order that his will may be found good by a Court, was in a perfect state of health, or that his mind was so clear as to enable him to give complicated instructions. It is sufficient if it is proved that he was able to give the outlines of the manner in which his estate was to be disposed of, and was able, when the result of the lawyer’s efforts was read out to him, to understand that his instructions in the main had been complied with.

It is to be remembered that in the instant appeal the estate of the deceased consists only the house, his EPF and insurance policy, the house was given to his mother and the EPF and insurance policy to his only child. There is nothing complicated about it.

We find that in the instant appeal, as in Tho Yow Pew & Anor v. Chua KooiHean (supra) there was a failure to consider certain evidence adduced by the appellants which was highly relevant to the issues before the court.

We also find ourselves in the same situation as this court was in Tho Yow Pew v. Chua Kooi Hean (supra). We find that case of great assistance to us regarding the decision we should make and for similar reasons given by this court in that case as stated in the courts judgment delivered by Gopal Sri Ram JCA.

In the present case, the learned Judge addressed his mind to what he termed as suspicious circumstances relating to the testamentary capacity of the testator. That approach falls well outside both principle and authority. It is a misdirection of law. Whether the learned judge would have come to the same conclusion had he applied the correct test is something we are unable to say. Whether indeed the testator in the present case had testamentary capacity upon a proper consideration of the evidence and upon a proper direction of the law by the trial judge unto himself is a question we do not think is within our realm. It will be wholly inappropriate in our judgment, for us to enter upon this issue because we have neither seen nor heard the witnesses. Indeed if we do attempt to resolve this issue we would be arrogating to ourselves powers we really do not have or if we had we ought not to exercise on the peculiar facts and circumstances of the instant case.

In the circumstances, as was done by this court in Tho Yow Pew & Anor v. Chua Kooi Hean (supra) in the interest of justice we direct a re-trial of the action before another judge on the issues of suspicious circumstances surrounding the making of the will and the testamentary capacity of the deceased. Nothing that we have said in this judgment is to be considered as conclusive upon the facts or evidence led before the learned judge. Those matters are to be considered afresh by the judge re-trying the case. It may be said that this would cause further delay in the disposal of the action and that the respondent is given a second bite of the cherry. However, in our view, truth and justice is more important than quick disposal and interest of either party to the action.

We therefore allow the appeal and order the matter to be re-tried before another judge. The deposit in this court is to be refunded to the appellants. On costs, we would also follow the order made by this court in Tho Yow Pew & Anor v. Chua Kooi Hean (supra) and that is that the costs should follow the event of the re-trial. We leave it to the learned judge upon re-trial to determine whether the costs are to be borne by the successful party or by the estate.

 

ABDULLAH ROHANI v. PUNCA KLASIK SDN BHD

ABDULLAH ROHANI v. PUNCA KLASIK SDN BHD
COURT OF APPEAL, KUALA LUMPUR
ABDUL HAMID MOHAMAD, JCA; MOHD NOOR AHMAD, JCA; ALAUDDIN MOHD SHERIFF, JCA
CIVIL APPEAL NO: J-02-769-1997
16 JANUARY 2004
[2004] 1 CLJ 773

CIVIL PROCEDURE: Summary judgment – Appeal against – ‘Arguable’ or ‘bona fide triable’ issues, whether any – Whether defendant showed there was ‘an issue or question in dispute which ought to be tried or that there ought for some other reason to be a trial’ – Whether trial judge erred in granting summary judgment for possession of Land to plaintiff – Whether summary judgment should be set aside and full trial ordered – Rules of the High Court 1980, O. 14

In 1991/1992, the plaintiff purchased a plot of land in its entirety on an ‘as is’ basis (without vacant possession and subject to all its encumbrances) from the trustees of the estate of one Syed Hassan Ahmad Alattas (‘SHAA’) for RM24 million. Upon obtaining registered ownership of the land in 1994, the plaintiff commenced an action for vacant possession against the existing occupiers of the land of whom the defendant was one. The defendant, on the other hand, claimed that his father had purchased a portion of the said land from the original trustees of the estate of SHAA in 1933. It was contended that the plaintiff’s father’s claim to that portion of the land was an ‘admitted claim’ as evidenced by a ‘Further Interim Certificate’ issued by the High Court in 1957. At the conclusion of the proceedings, the senior assistant registrar allowed the plaintiff’s application to enter summary judgment against the defendant. The judge-in-chambers upheld the decision of the senior assistant registrar and the defendant appealed to the Court of Appeal.
Held (allowing the appeal)
Per Abdul Hamid Mohamad JCA delivering the judgment of the court
[1] In relation to an application under O. 14 Rules of the High Court 1980 (‘RHC’), the defendant must, in order to be entitled to defend the action in a full trial, satisfy the Court that there is an issue or question in dispute which ought to be tried or that there ought for some other reason to be a trial. There must be an ‘arguable issue’ or a ‘bona fide triable issue’.
[2] Considering the facts and the issues of law involved herein, this was not a case in which summary judgment should be given. There were arguable or triable issues or, at the very least, ‘some other reason to be a trial’. This was not a simple case of trespass or occupation without the permission of the owner. It could not be denied that the defendant’s father had purchased a portion of the land from the original trustees of the estate of SHAA, paid the full purchase price thereof, proceeded to erect two houses thereon and lived thereat until his demise. The defendant’s father was in occupation of that portion of the land ‘uninterruptedly’ and without any objection from the original or subsequent trustees of the estate of SHAA. And after his death, his beneficiaries continued to live in the two said houses. In addition, both the ‘Further Interim Certificate’ issued by the High Court and the ‘Deed of Family Arrangement’ executed by the parties also supported the defendant’s case.
[Bahasa Malaysia Translation Of Headnotes
Dalam 1991/1992, plaintif telah membeli satu plot tanah keseluruhannya pada dasar ‘seperti adanya’ (tanpa milikan kosong dan tertakluk kepada kesemua bebanan) dari pemegang-pemegang amanah harta pusaka seorang Syed Hassan Ahmad Alattas (‘SHAA’) dengan harga RM24 juta. Setelah mendapat pemunyaan berdaftar tanah tersebut dalam tahun 1994, plaintif memulakan tindakan untuk milikan kosong terhadap penghuni-penghuni semasa tanah tersebut yang mana defendan merupakan salah seorang darinya. Defendan, sebaliknya mendakwa bahawa bapanya telah membeli satu bahagian dari tanah tersebut dari pemegang-pemegang amanah harta pusaka SHAA yang asal dalam tahun 1933. Adalah ditegaskan bahawa tuntutan bapa plaintif bahawa bahagian tanah tersebut adalah satu ‘tuntutan yang diakui’ sebagaimana yang diterangkan oleh “Sijil Interim Lanjut” yang dikeluarkan oleh Mahkamah Tinggi dalam tahun 1957. Pada akhir prosiding, penolong kanan pendaftar membenar permohonan plaintif untuk memasukkan penghakiman terus terhadap defendan. Hakim dalam kamar mengesahkan keputusan penolong kanan pendaftar dan defendan merayu ke Mahkamah Rayuan.
Diputuskan (membenarkan rayuan):
Oleh Abdul Hamid Mohamad HMR menyampaikan penghakiman mahkamah
[1] Berhubung dengan permohonan di bawah A. 14 Kaedah-kaedah Mahkamah Tinggi 1980 (“KMT”), defendan mestilah, untuk berhak membela tindakan tersebut dalam perbicaraan penuh, memuaskan Mahkamah bahawa terdapat satu isu atau persoalan yang dipertikaikan yang wajar dibicarakan atau terdapat sesuatu sebab yang lain untuk dibicarakan. Hendaklah terdapat satu ‘isu yang dipertikaikan’ atau satu ‘isu yang bona fide untuk dibicarakan’.
[2] Menimbangkan fakta-fakta dan isu-usu undang-undang yang terlibat di sini, ianya bukan satu kes yang mana penghakiman terus wajar diberikan. Terdapat isu-isu yang dipertikaikan atau yang boleh dibicarakan atau sekurang-kurangnya, ‘alasan yang lain untuk perbicaraaan’. Ini bukanlah satu kes pencerobohan yang ringkas atau penghunian tanpa kebenaran pemilik. Ianya tidak dapat dinafikan bahawa ayah defendan telah membeli sebahagian tanah dari pemegang-pemegang amanah harta pusaka SHAA yang asal, membayar sepenuh harga beliannya, mendirikan dua buah rumah di atas tanah tersebut dan telah tinggal disitu sehinggalah kematiannya. Bapa defendan mempunyai penghunian sebahagian tanah tersebut ‘tanpa gangguan’ dan tanpa sebarang bantahan dari pemegang-pemegang amanah harta pusaka SHAA yang asal ataupun yang seterusnya. Dan selepas kematiannya, benefisiari-benefisiari terus tinggal di dalam kedua-dua rumah tersebut. Tambahan pula, kedua-dua ‘Sijil Interim Lanjut” yang dikeluarkan oleh Mahkamah Tinggi dan “Suratikatan Perkiraan Keluarga” yang disempurnakan oleh pihak-pihak berkenaan juga menyokong kes defendan.
Penghakiman terus diketepikan; bicara penuh diarahkan.]
Reported by Gan Peng Chiang

Case(s) referred to:
Bank Negara Malaysia v. Mohd Ismail & Ors [1992] 1 CLJ 627; [1992] 1 CLJ (Rep) 14 SC (refd)
Bohari Taib & Ors v. Pengarah Tanah dan Galian Selangor [1991] 1 CLJ 647; [1991] 1 CLJ (Rep) 48 SC (foll)
Borneo Housing Mortgage Finance Bhd v. Time Engineering Bhd [1996] 2 CLJ 561 FC (refd)
Mok Deng Chee v. Yap See Hoi & Ors [1981] CLJ 124; [1981] CLJ (Rep) 69 FC (refd)
National Company for Foreign Trade v. Kayu Raya Sdn Bhd [1984] 2 CLJ 220; [1984] 1 CLJ (Rep) 283 FC (refd)
Ng Hee Thong & Anor v. Public Bank Bhd [1995] 1 CLJ 609 CA (refd)
Voo Min En & Ors v. Leong Chung Fatt [1982] 1 LNS 47; [1982] 2 MLJ 241 SC (refd)

Legislation referred to:
Rules of the High Court 1980, O. 14, O. 89
Counsel:
For the appellant – RR Mahendran; M/s RR Mahendran & Co
For the respondent – Ng Chew Hor; M/s Ng Fan & Assoc

JUDGMENT
Abdul Hamid Mohamad JCA:
By a sale and purchase agreement dated 9 July 1991 between the respondent (plaintiff in the High Court) and the trustees of the estate of Syed Hassan bin Ahmad Alattas, the respondent purchased the whole of lot 1471 held under grant No. 26977 for the sum of RM24,000,000. The purchase was on an “AS IS” basis, without vacant possession and subject to all existing occupiers: squatters, tenants and/or claimants. The sale and purchase agreement was subsequently approved by Johor Bahru High Court by an order dated 29 February 1992 with a term under cl. 1(d)(vii) as follows:
tanah tersebut mesti dijual secara “as is” tanpa milikan kosong (vacant possession) termasuk segala apa jenis encumbrances terhadapnya termasuk kaveat, setinggan, penyewa serta apa-apa tuntutan terhadapnya.
The respondent obtained the registered-ownership of the said land on 21 January 1994. It appears that soon after that the respondent commenced proceedings for vacant possession against the existing occupiers, the suit that gives rise to this appeal was filed on 1 August 1996. In this suit the respondent claims possession of about 10,000 sq. ft. of land occupied by the appellant.
In his defence the appellant claimed that his father, Rohani bin Mizan, had entered into a sale and purchase agreement dated 24 March 1933 with the original trustees of the estate of Syed Hassan Al- Attas, whereby the appellant’s father bought a portion of the said land measuring about 10,000 square feet which was demarcated and identified as lots 19 & 20 in section “L” for a price of RM500. The full purchase price had been paid by the appellant’s father. It was a term of the agreement that the said original trustees shall deposit the Malay Grant No. 1572 in the land office for subdivision as soon as 1/3 of the said land is sold. Clause 4 of the 1933 agreement states that once individual grants for lots 19 and 20 have been issued and full purchase price paid the trustees shall execute memorandum of transfer in favour of the appellant’s father.
Pursuant to a civil suit in the Johor Bahru High Court in Civil Suit No.20 of 1937 filed by Estate of Trust Agencies (1927) Ltd. as the subsequent trustees of the estate against the beneficiaries of the said estate, the appellant’s father’s claim to the said portion was recognised by the parties to the suit and noted as an “admitted claim”. The Assistant Registrar’s Further Interim Certificate issued on 24 November 1957 contained the terms of the acknowledgment or admission as follows:
(a) the agreement in writing dated March 24, 1933 shall be accepted as proof under clause 8(b)(iv) of the Deed of Family Arrangement;
(b) no action was to be taken against those persons who had purchased parts of the deceased’s property from the four trustees and executors of the deceased’s estate under clause 9(d) of the Deed of family Arrangement; and
(c) all the properties sold by the four trustees and executors of the deceased’s estate were to be transferred to the respective purchasers or their successors-in-title under the second schedule of paragraph 3 (L) of the Deed of family Arrangement.
On 10 September 1959 the said Deed of Family Arrangement was approved by the court.
The respondent filed an application for summary judgment under O. 14 of the Rules of the High Court 1980 (RHC 1980). The senior assistant registrar allowed the application. On appeal to the judge-in-chambers, the learned judge agreed with the senior assistant registrar. The appellant appealed to this court. We allowed the appeal the effect of which is that the suit will go for full trial.
In a lengthy judgment that makes it quite difficult for us to look for his reasons, the learned judge held that the respondent had succeeded in establishing their title to the whole of lot 4271 and that the burden was on the appellant “to confess and avoid by setting up a title or a right to possession consistent with the facts of ownership vested in the respondent.” The learned judge held that the Assistant Registrar’s Further Interim Certificate relating to the acknowledgment reproduced earlier “was nothing more than an admission that there was a contractual relationship between the four trustees and executors of the deceased’s estate” with the appellant’s father. It does not mean that the appellant’s father became the beneficial owner of the 10,000 square feet of land. “In short”, the learned judge said, “the Assistant Registrar’s Further Interim Certificate did not transfer nor pass title to 10,000 square feet to the defendant” (appellant). The learned judge also dismissed the argument that the appellant had a tenancy coupled with equity as “totally unsubstantiated” as there was no tenancy between the appellant’s father and the respondent even though the appellant or his father had expended money to put up the premises on the land as the appellant’s father ought to have known that he had no legal title to it.
On the counterclaim, the learned judge held that to construe and declare the defendant as a beneficial owner of the 10,000 square feet of land “out of the big chunk of land held by Punca Klasik (the respondent) would be an exercise in futility”. For that the learned judge relied on Borneo Housing Mortgage Finance Bhd v. Time Engineering Bhd [1996] 2 CLJ 561 in which it was held that before a vendor would become a bare trustee and the purchaser a beneficial owner two conditions must be satisfied, namely:
(i) the full purchase price has been paid timeously; and
(ii) the purchaser must have procured a memorandum of transfer in the prescribed form which is registrable from the vendor.
The learned judge, while finding that the first condition was satisfied, found that the second condition was not. Therefore the appellant’s father was not a beneficial owner. The learned judge also referred to five other similar cases involving the same piece of land in which judgments were given in favour of the respondent at High Court level, four of which were his own judgments. He found that the present case was no different from those other cases.
The learned judge also found that the appellant’s father was a trespasser since 14 January 1935 when he purchased the 10,000 sq. feet of land “simply because there was no valid memorandum of transfer capable of registration.” The learned judge said:
It was apparent that the entry was lawful and it became unlawful as the years go by. The late Haji Rohani bin Mizan (the Appellant’s father – added) and his beneficiaries that stayed on that portion of land were under delusions that mere possession and occupation would give them beneficial ownership of that occupation. They were wrong. It was an expensive mistake.
The learned judge dismissed the counterclaim for a declaration that the respondent holds the property as a bare trustee for and on behalf of the appellant who is the absolute beneficial owner of the property.
We remind ourselves that this appeal arises from a summary judgment under O. 14 of the RHC 1980. It is trite law that in such an application the onus on the defendant (appellant) to be entitled to defend the action in a full trial, is to satisfy the court that “there is an issue or question in dispute which ought to be tried or that there ought for some other reason to be a trial…” O. 14 r. 3(1). Courts have described it as “arguable issue” or “triable issue”. Thus in Voo Min En & Ors v. Leong Chung Fatt [1982] 1 LNS 47; [1982] 2 MLJ 241 (SC) it was said that “… The issue raised must be an arguable issue.” In Ng Hee Thong & Anor v. Public Bank Bhd [1995] 1 CLJ 609, the Court of Appeal asked the question “Is there a bona fide triable issue?”
In Bohari Taib & Ors v. Pengarah Tanah dan Galian Selangor [1991] 1 CLJ 647; [1991] 1 CLJ (Rep) 48 the Supreme Court said:
On the other hand, like the default and summary procedures under O. 13 and O. 14, this Order would normally apply only in virtually uncontested cases or in clear cases where there is no issue or question to try i.e. where there is no reasonable doubt as to the claim of the Plaintiff to recover possession of the land or as to wrongful occupation of the land without licence or consent and without any right, title or interest thereto.
The last mentioned case, it should be noted is a case where the appellants were occupying State land and subsequently applied to the State Authority for titles to the said land. Even though it was alleged that the Selangor State Executive Council had approved the alienation of the land to the appellants who were also assured by a member of the State Executive Council that the appellants would be given titles to the said land, no title had been issued. Temporary Occupation Licences that were issued for three consecutive years had expired. Even under the circumstances, the Supreme Court was of the view that that was not the type of case where summary judgment under O. 89 RHC 1980 should be given. The Supreme Court specifically stated the similarity between O. 89 and O. 14 of the RHC 1980.
We are also mindful of the cases referred to us by learned counsel for the respondent in particular Bank Negara Malaysia v. Mohd Ismail & Ors [1992] 1 CLJ 627; [1992] 1 CLJ (Rep) 14 (SC), and National Company for Foreign Trade v. Kayu Raya Sdn Bhd [1984] 2 CLJ 220; [1984] 1 CLJ (Rep) 283 (FC).
We also remind ourselves that, since we have set aside the summary judgment and the suit will go for trial, we should not say too much so as not to bind or influence the learned judge who will be hearing the case and giving his decision. We leave all issues open for him to try and to decide.
All that we would say at this stage is that, considering the facts of the case and issues of law involved, we are of the view that this case is not a case in which a summary judgment should be given. We are of the view that there are arguable or triable issues and, at the very least, it falls within the phrase “or that there ought for some other reason to be a trial…”
And we say so for the following reasons. First, this is not a simple case of trespass or occupation without the permission of the owner. Whatever its legal effect that would be decided by the trial judge after the trial, it is undeniable that the appellants father “had bought” that portion of the land from the original trustees, paid the full purchase price, proceeded to erect two houses on the land, lived there until he died. True that that no title was obtained by him in his lifetime, but he was in occupation of the land uninterruptedly and without any objection leave that to the trial judge to try that the real issue is whether the from the original or subsequent trustees. After his death, his beneficiaries continued to live in the two houses. There is the Senior Assistant Registrar’s Further Interim Certificate dated 24 November 1957 in which the appellant’s father’s claim was acknowledged as “claims admitted”. There is the Deed of Family Arrangement that was executed by the parties to Civil Suit no. 20 of 1937 where the portion sold to the appellant’s father should be transferred to him. That Deed of Family Arrangement was approved by a court order in the same civil suit. Would that not be binding on the parties to the suit including the trustees of the estate who subsequently sold the land to the respondent? Would the respondent, having purchased the whole land from the trustees on an “AS IS” basis be entitled to summarily evict the appellants without any compensation whatsoever? Mok Deng Chee v. Yap See Hoi & Ors [1981] CLJ 124; [1981] CLJ (Rep) 69 (FC) offers an illustration in which the equity of a RM1 a month ground tenant was not lost even though the land was sold to a new owner. We are not deciding at this stage that in the instant case whether the appellant has an equity or whether it has been lost or not. We leave that to the trial judge to try the issue and decide. We would like to emphasise that the real issue is whether the respondent is entitled to a summary judgment to evict the appellant without even a full trial. We are of the view that the appellant should be given the liberty to defend the suit. We set aside the summary judgment and direct that the suit proceed to a full trial. This appeal is allowed with costs here and in the court below and that the deposit be refunded to the appellant.

GASING MERIDIAN SDN BHD v. DATUK BANDAR KUALA LUMPUR

GASING MERIDIAN SDN BHD v. DATUK BANDAR KUALA LUMPUR
COURT OF APPEAL,
ABDUL HAMID MOHAMAD, JCA; ARIFFIN ZAKARIA, JCA; MOHD GHAZALI YUSOFF, JCA
CIVIL APPEAL NO: W-04-108-01
16 DECEMBER 2003
[2004] 1 CLJ 219
LOCAL GOVERNMENT: Town planning – Planning control – Federal Territory (Planning) Act 1982 – Power of Commissioner to issue requisition notice under s. 30 – Nature and exercise of power, whether entirely and subjectively discretionary – Whether refusal of Commissioner to issue requisition notice amenable to judicial review and mandamus – Discontinuance of use of Land under s. 30(1)(a), meaning of

ADMINISTRATIVE LAW: Exercise of Administrative powers – Judicial review – Refusal of Commissioner to issue requisition notice under s. 30 Federal Territory (Planning) Act 1982 – Whether refusal of Commissioner amenable to judicial review – Whether mandamus lies – Whether power of Commissioner to issue requisition notice entirely and subjectively discretionary

The appellant, a developer, had earlier purchased a few lots of land in the Federal Territory of Kuala Lumpur (‘the land’) with a view to constructing some bungalows thereon for sale. Thereafter, the appellant applied to the respondent/Datuk Bandar Kuala Lumpur (‘the Commissioner’) for approval to: (i) carry out the construction of roads and drains to service the land; and (ii) carry out the earthwork respecting the construction of the said roads and drains. The Commissioner approved stage (i) of the proposed construction work but required the appellant to apply de novo for the approval of stage (ii) upon the completion of stage (i). Unhappy with this decision of the Commissioner, the appellant appealed to the Appeal Board under s. 23 of the Federal Territory (Planning) Act 1982 (‘the Act’). Whilst agreeing with the appellant that it would neither be economical nor practical to develop the land in two stages (as was proposed by the Commissioner), the Appeal Board, nevertheless, also agreed with the Commissioner that the gradient of the land was such that it could not be developed in one single phase (as was proposed by the appellant). Ultimately, the Appeal Board dismissed the appellant’s appeal for the land to be developed in one single phase.
Thereafter, the appellant requested the Commissioner to issue a ‘requisition notice’ under s. 30 of the Act. The Commissioner declined. The appellant then requested the Appeal Board to clarify its decision and the Appeal Board replied reiterating its earlier decision and orders. The appellant then filed an ex parte originating motion praying for: (a) an order of mandamus directing the Commissioner to issue a requisition notice under s. 30 of the Act; or alternatively (b) a declaration that the decision of the Appeal Board amounted to a requisition notice by the Commissioner to the appellant and, consequently, the appellant was entitled to issue a ‘purchase notice’ to the Commissioner under s. 46 of the Act. In addition, the appellant also prayed for damages and interest. The High court rejected the appellant’s motion and the appellant appealed to the Court of Appeal.
Held (dismissing the appeal):
Per Abdul Hamid Mohamad JCA
[1a] Before a requisition notice can be issued, the Commissioner himself must be satisfied with regard to s. 30(1) of the Act. It is not for the court to be satisfied with the stipulations of the said section and then direct the Commissioner to issue a requisition notice. The situation in the instant case was not one wherein the Commissioner has exercised his discretion under the said section and the aggrieved party applies to the court for judicial review and certiorari to quash the decision of the Commissioner. The appellant here was trying to substitute the court for the Commissioner.
[1b]Section 30 of the Act does not impose a duty on the Commissioner to issue a requisition notice. In only empowers him to do so if and when he is satisfied with respect to the preconditions in s. 30(1) of the Act. Even if the prerequisites in s. 30(1) of the Act are met, the exercise of the Commissioner’s power to issue a requisition notice is still discretionary. The court is not to usurp the power of the Commissioner.
[2]Under s. 30(1) of the Act, the satisfaction of the Commissioner that a particular ‘use of land has to be discontinued’ is a precondition to the issuance of a requisition notice. Here, the Commissionernever decided that the use of the land should, or was to be, discontinued. The designated use of the land for ‘bangunan’ (building) remained the same. The critical issue was whether the earthwork for the development of the land was to be carried out in one or two stages. The Commissioner decided that it had to be done in two stages and this was confirmed by the Appeal Board which dismissed the appellant’s appeal for the land to be developed in one single phase. The decision of the Appeal Board meant that the Commissioner’s original decision – that the appellant could develop the land in two stages – still stood. Evidently, the facts of the instant case did not fall within the scope of either paras (a), (b) or (c) of s. 30(1) of the Act.
[3] The contention that the decision of the Appeal Board amounted to a ‘requisition notice’ by the Commissioner to the appellant was preposterous.
[Bahasa Malaysia Translation Of Headnotes
Perayu, sebuah syarikat pemaju, sebelum ini telah membeli beberapa lot tanah di Wilayah Persekutuan Kuala Lumpur (‘tanah’) dengan hasrat untuk membina beberapa rumah banglo di situ untuk dijual. Perayu kemudian memohon kepada responden/Datuk Bandar Kuala Lumpur (‘Pesuruhjaya’) bagi kebenaran untuk: (i) membina jalan-jalan dan longkang bagi kegunaan tanah; dan (ii) melakukan kerja-kerja tapak bagi pembinaan jalan-jalan dan longkang tersebut. Pesuruhjaya meluluskan peringkat (i) pembinaan yang dicadangkan tetapi mengkehendaki perayu memohon de novo bagi pembinaan peringkat (ii) setelah pembinaan peringkat (i) siap. Berasa tidak puas hati dengan keputusan Pesuruhjaya, perayu merayu kepada Lembaga Rayuan di bawah s. 23 Akta (Perancangan) Wilayah Persekutuan 1982 (‘Akta’). Sementara bersetuju dengan perayu bahawa adalah tidak ekonomik atau praktikal untuk memajukan tanah dalam dua peringkat (sebagaimana yang dicadangkan oleh Pesuruhjaya), Lembaga Rayuan, namun begitu, juga bersetuju dengan Pesuruhjaya bahawa kecuraman tanah adalah begitu rupa sehinggakan ianya tidak boleh dibangunkan melalui satu peringkat sahaja (sebagaimana yang dicadangkan oleh perayu). Lembaga Rayuan, dengan itu, menolak rayuan perayu untuk membangunkan tanah melalui satu peringkat pembangunan.
Perayu kemudian meminta Pesuruhjaya mengeluarkan satu notis requisition di bawah s. 30 Akta. Pesuruhjaya enggan. Berikutnya perayu meminta supaya Lembaga Rayuan menjelaskan keputusannya dan Lembaga Rayuan telah berbuat demikian. Selepas itu perayu memfailkan usul pemula ex parte memohon: (a) satu perintah mandamus memerintahkan Pesuruhjaya mengeluarkan notis requisition di bawah s. 30 Akta; atau (b) satu perisytiharan bahawa keputusan Lembaga Rayuan adalah merupakan satu notis requisition oleh Pesuruhjaya kepada perayu yang berakibat, perayu berhak untuk mengeluarkan ‘notis pembelian’ kepada Pesuruhjaya di bawah s. 46 Akta. Selain itu, perayu juga memohon ganti rugi dan faedah. Mahkamah Tinggi menolak usul perayu dan perayu merayu ke Mahkamah Rayuan.
Diputuskan (menolak rayuan):
Oleh Abdul Hamid Mohamad HMR
[1a]Sebelum suatu notis requisition boleh dikeluarkan, Pesuruhjaya sendiri hendaklah berpuashati berkaitan s. 30(1) Akta. Ianya bukanlah fungsi mahkamah untuk berpuas hati dengan peruntukan-peruntukan seksyen tersebut dan kemudian mengarahkan Pesuruhjaya mengeluarkan notis requisition. Ini bukanlah satu kes di mana Pesuruhjaya telah melaksanakan budibicaranya di bawah seksyen tersebut dan pihak yang terkilan memohon kepada mahkamah untuk kajian semula dan certiorari bagi membatalkan keputusan Pesuruhjaya. Perayu nampaknya cuba menggantikan Pesuruhjaya dengan mahkamah.
[1b]Seksyen 30 Akta tidak mewajibkan Pesuruhjaya untuk mengeluarkan notis requisition. Ia hanya memberinya kuasa untuk berbuat demikian jika dan bilamana beliau berpuas hati berkaitan keperluan-keperluan s. 30(1) Akta. Jikapun keperluan-keperluan s. 30(1) Akta telah dipenuhi, pelaksanaan kuasa Pesuruhjaya untuk mengeluarkan notis requisition masih bersifat budibicara. Mahkamah tidak akan merampas kuasa Pesuruhjaya tersebut.
[2]Di bawah s. 30(1) Akta, kepuasan hati Pesuruhjaya bahawa sesuatu ‘kegunaan tanah telah dihentikan’ adalah satu syarat bagi satu-satu pengeluaran notis requisition. Di sini, Pesuruhjaya tidak pernah membuat keputusan bahawa kegunaan tanah tersebut patut, ataupun mesti, dihentikan. Kegunaan tanah untuk ‘bangunan’ masih lagi kekal. Isu kritikalnya adalah sama ada kerja-kerja tapak bagi pembangunan tanah harus dijalankan melalui satu atau dua peringkat. Pesuruhjaya memutuskan bahawa ia harus dilaksanakan dalam dua peringkat dan itu telah disahkan oleh Lembaga Rayuan apabila menolak rayuan perayu untuk membangun tanah dalam satu peringkat. Keputusan Lembaga Rayuan bermakna keputusan asal Pesuruhjaya – bahawa perayu harus membangunkan tanah dalam dua peringkat – masih kekal. Jelas bahawa fakta-fakta kes semasa tidak dirangkumi oleh sama ada peranggan (a), (b) ataupun (c) s. 30(1) Akta.
[3]Hujah bahawa keputusan Lembaga Rayuan adalah merupakan satu ‘notis requisition’ oleh Pesuruhjaya kepada perayu adalah tidak munasabah.
Reported by Gan Peng Chiang
Counsel:
For the appellant – Cecil Abraham (N Segaran); M/s SK Yeoh & Partners
For the respondent – Romesh Abraham (Janice Leo); M/s Shook Lin & Bok

JUDGMENT
Abdul Hamid Mohamad JCA:
Gasing Meridian Sdn. Berhad, the appellant in this court is the registered proprietor of various lots of land in Kuala Lumpur (“the lands”) which it purchased on 31 October 1995 for RM60 million. To pay for part of the purchase price, the appellant took a loan of RM34 million from a bank. In 1998 part of the lands was acquired pursuant to the Land Acquisition Act 1960. The appellant’s intention was to develop the lands for sale (a) with bungalows constructed on them and/or (b) as land suitable for the construction of bungalows.
By letters dated 5 August 1996, the appellant applied to the respondent for approval to do the following:
(i) To carry out the construction of roads and drains to service the lands;
(ii) To carry out the earthworks with respect to the aforementioned roads and drains.
On 11 June 1999, the respondent issued an approval for the first stage of the works. Upon completion of the first stage, the appellant was required to make a fresh and separate application for approval of the second stage. The appellant was unhappy with the stage-by-stage approval. The appellant said that it was not possible to carry out the works pursuant to the two-stage approval. The appellant appealed to the Planning Appeals Board pursuant to s. 23 of the Federal Territory (Planning) Act 1982 (“the Act”).
On 25 August 2000, the Planning Appeals Board gave its decision, as follows:
(a) We agree with the submissions by the company that it is prohibitive and not viable for the land to be developed in two stages. The development in these two stages as proposed by the DBKL cannot be carried out by the company because of viability and other factors as pointed out by the company.
Taking into consideration the submissions, the DBKL’s view that the land (the 82 lots) as a whole is too steep and not suitable for the development as proposed by the company in their proposed development plan. We have visited the place and agreed with the DBKL views that if the company is to carry out development of land as a whole in a single phase, it could not be done because contour of the land especially the upper part is too steep.
The appeal by Gasing Meridian Sdn. Bhd. for one stage approval is therefore dismissed.
(b) Perintah memihak responden selepas pendengaran.
Rayuan ini setelah didengar di hadapan Lembaga Rayuan pada 25 haribulan Ogos 2000.
Adalah pada hari ini diperintahkan bahawa Rayuan ditolak dengan kos. Bertarikh 25 haribulan Ogos 2000.
Subsequently, on 13 September 2000, the appellant wrote to the respondent asking the respondent to issue a requisition notice under s. 30 of the Act. The respondent through their solicitors by letter dated 27 September 2000 declined the request.
On 18 October 2000, upon request by the respondent, the appellant applied to the Planning Appeals Board for clarification of the order of 25 August 2000. By a letter dated 8 December 2000 the Board clarified the decision as follows:
(i) Rayuan oleh Gasing Meridian Sdn. Bhd. ditolak dengan kos;
(ii) Mengikut pandangan Syarikat dari segi praktik dan ekonomi tanah tersebut tidak dapat dibangunkan sebagai dua (2) peringkat.
(iii) Tanah tersebut tidak dapat dimajukan sekali gus sebagai satu (1) peringkat kerana ketinggian tanah yang begitu curam.
On 4 October 2000 the appellant filed an ex parte originating motion praying for the following orders:
(a) An order of mandamus directing as follows:
That the Respondent within 14 days from the date of the order issue to the Applicant the “requisition notice” pursuant to s. 30 of the Federal Territory (Planning) Act 1982 with respect to the Applicant’s lands held under Lots No.37180 to Lot No. 37255 (inclusive) and Lots No. 37257 to No. 37262 (inclusive) all in the Mukim of Kuala Lumpur, Wilayah Persekutuan (“Lands”) less the lots and/or parts of the lots already acquired pursuant to the Land Acquisition Act 1960 (“Acquired Lots”).
(b) In the alternative to paragraph (a) above, declarations declaring as follows:
(i) That the order pronounced by the Appeals Board (as established pursuant to s. 45 of the Federal Territory (Planning) Act 1982) on 25.08.2000 amounts to a “requisition notice” by the Respondent to the Applicant with respect to the Lands (less the Acquired Lots) pursuant to s. 30 of the Federal Territory (Planning) Act 1982.
(ii) That consequent to paragraph (b)(i) above, the Applicant be entitled to issue a purchase notice to the Respondent with respect to the Lands (less the Acquired Lots) pursuant to s. 46 of the Federal Territory (Planning) Act 1982.
(c) Further and in addition to paragraph (a) or (b) above, for the following:
(i) An order that the Respondent do pay to the Applicant damages equal to the interest accrued on the loan obtained by the Applicant from Arab-Malaysian Bank Berhad, commencing from 11.06.99 to the date the Respondent makes full payment of the sum to be paid to the applicant for the acquisition, requisition and/or purchase of the Lands (less the Acquired Lots) pursuant to the Federal Territory (Planning) Act 1982 and/or the Land Acquisition Act 1960.
(ii) An order that the Respondent do pay to the Applicant interest at the rate of 8% per annum on the sum to be paid to the Applicant for the acquisition, requisition and/or purchase of the Lands (less the Acquired Lots) pursuant to the Federal Territory (Planning) act 1982 and/or the Land Acquisition Act 1960, commencing from 11.06.99 to full payment thereof.
(d) All such other consequential orders with respect to any one or more of the above, as the Honourable Court shall deem fit.
On 18 July 2001 the High Court dismissed the application. The appellant appealed to this court. On 8 April 2003, we heard the appeal and dismissed it with costs.
We think it is important, at the outset, to get a clear picture of the order that the appellant was asking the court to make.
The appellant bought the lands with a view to developing it, selling the bungalows and bungalow lots and make a profit. For that purpose it applied for the planning permission from the respondent. The respondent gave the approval for the first stage first. The appellant will have to apply for the approval of the second stage after the first stage is completed. The appellant was not happy with that. The appellant wanted an approval for both stages to be given simultaneously, because a two-stage approval is more costly and time consuming. But, according to the respondent it was inevitable as it was a “hillslope development” and the respondent had to take into account, which it did, in attaching the conditions such factors as safety, environmental preservation, prevention of disruption to the neighbouring residential area, pollution, flooding etc. Having failed to get what it wanted, the appellant filed the originating motion for an order of court to order the respondent to issue the requisition notice under s. 30 of the Act. The purpose was to enable the appellant to serve a purchase notice on the Commissioner with a view to cause the Commissioner to initiate steps to acquire the lands in accordance with the provisions of the Land Acquisition Act 1960 and get compensated for it. To achieve its purpose, the appellant had come to court, requesting the court to exercise its powers of judicial review to order the respondent to issue the requisition notice.
To appreciate the rationale of the appellant’s application in the High Court, we should briefly trace the scheme of the Act, in so far as it is relevant to the case. The preamble of the Act says that it is “an Act to make provisions for the control and regulating of proper planning in the Federal Territory…”
By s. 5, the Commissioner appointed under the Federal Capital Act 1960 was appointed to exercise all the functions and powers conferred and to perform the duties imposed on him by the Act. By s. 6, the functions of the Commissioner “shall be to regulate, control and plan the development of all lands within the Federal Territory and the use of such lands and buildings…” which include to “prepare and implement the development plan.” Part III, ss. 7 to 18 talks about development plans. Part IV, ss. 19 to 30, deal with planning control. Section 19 provides that no person “shall use or permit to be used any land or building or commence, undertake or carry out any development otherwise than in conformity with the development plan or any planing permission granted under this Act in respect of the development.” Section 20 prohibits development without planning permission. Section 21 provides the manner in which the application for planning permission is to be made to the Commissioner. Section 22 provides, inter alia, that the “Commissioner shall have power exercisable at his discretion to grant planning permission or to refuse to grant planning permission in respect of any development irrespective of whether or not such development is in conformity with the development plan…” Such permission, if granted may be with or without conditions. Section 23 provides that an appeal against the decision of the Commissioner may be made to the Appeal Board by an applicant aggrieved by the decision of the Commissioner in refusing his application for planning permission or who is aggrieved by any condition imposed by the Commissioner in granting permission in respect of his application. Subsection (3) provides for the type of orders that the Appeal Board May make. They are:
(a) confirming the decision of the Commissioner and dismissing the appeal; or
(b) allowing the appeal by directing the Commissioner to grant planning permission subject to such conditions as the Appeal Board may think fit; or
(c) allowing the appeal by directing the Commissioner to remove or modify any condition subject to which planning permission has been granted or to replace such condition with such other condition as the Appeal Board may think fit.
Section 45(12), provides:
(12) An order made by the Appeal Board on an appeal before it shall be final, shall not be called into questioned in any court, and shall be binding on all parties to the appeal or involved in the matter.
We go back to s. 30. As this section featured prominently in the course of the arguments, the section, though quite lengthy should be reproduced:
30. Requisition notice.
(1) Without prejudice to section 27, if the Commissioner is satisfied:
(a) that any use of land should be discontinued; or
(b) that conditions should be imposed on the continued use thereof; or
(c) that any building or works on any land should be altered or removed,
the Commissioner may, by notice, which in this Act is referred to as the “requisition notice”, served on the owner of the land:
(i) require the discontinuance of that use; or
(ii) impose such conditions for the continued use of the land as may be specified in the requisition notice; or
(iii) require such steps as may be specified in the requisition notice to be taken for the alteration or removal of the buildings or works as the case may be;
and the owner shall, within such period as may be specified in the requisition notice, not being less than one month from the date of service of the notice, comply with such requirements or conditions.
(2) A person aggrieved by a requisition notice may, within the period stated therein and in the manner prescribed, appeal to the Appeal Board.
(3) If an appeal is filed under subsection (2), the requisition notice shall be suspended until the determination or withdrawal of the appeal.
(4) In considering an appeal under subsection (2), the Appeal Board shall hear the appellant and the Commissioner.
(5) If the owner of the land to which the requisition notice relates has, in consequence of complying with the notice, suffered damage in the form of a depreciation in the value of the land or incurred expenses or costs in carrying out works in compliance with the notice, he may claim from the Commissioner, within the time and in the manner prescribed, compensation as the Commissioner considers adequate.
(6) If a claim is made under subsection (5) the Commissioner shall, after giving the person making the claim an opportunity to be heard, offer him such compensation as the Commissioner considers adequate.
(7) If the person to whom compensation is offered under subsection (6) is aggrieved by the amount thereof, he may, within the time and in the manner prescribed, appeal to the Appeal Board and the Appeal Board shall assess the amount of compensation to be paid.
(8) A person who fails to comply with a requisition notice served on him under subsection (1) within the period specified therein or, where an appeal has been made under subsection (2), within such period after the determination or withdrawal of the appeal as may be specified by the Commissioner commits an offence and is liable, on conviction, to a fine not exceeding ten thousand ringgit and, in the case of a continuing offence, to a further fine which may extend to five hundred ringgit for each day during which the offence is continued after the conviction for the first commission of the offence.
(9) Without prejudice to subsection (8) if within the time specified in the requisition notice, there is no compliance, the Commissioner or any person so authorised by him, may enter with or without workmen upon the land and take such steps as may be necessary to execute the requisition notice including the demolition or alteration to any building or works or removal of any goods, vehicles or things from any building or land and in such event subsections (2) and (3) of section 29 shall mutatis mutandis apply.
Briefly, the section provides that if the Commissioner is satisfied that any use of land should be discontinued etc., the Commissioner may issue and serve a requisition notice on the owner of the land requiring the owner of the land to discontinue the use of the land and the owner must comply with the notice. If the owner is aggrieved by the requisition notice, he may appeal to the Planning Appeals Board. If, in consequence of complying with the notice, the owner had suffered damage in the form of a depreciation in the value of the land or incurred expenses or costs, he may claim compensation for the damage, expenses or costs from the Commissioner. The Commissioner may then offer the owner such compensation as the Commissioner considers adequate. If the owner is aggrieved by the amount offered, again he may appeal to the Planning Appeals Board and the board shall assess the amount of compensation to be paid to the owner. Subsection (8) makes it a criminal offence for a person who has been served with the requisition notice to fail to comply with the notice. The Commissioner may also enter the land and take such steps as may be necessary to execute the requisition notice including the demolition of any building and so on.
We now go to Part VIII (Purchase Notice and Acquisition of Land) which consists of only one section, s. 46. This section, inter alia, enables a registered proprietor of land who claims that, by reason of compliance with a requisition notice under s. 30, the land is incapable of reasonable beneficial use, may serve on the Commissioner a purchase notice, the final effect of which is that the land will be acquired in accordance with the Land Acquisition Act 1960 and the registered proprietor will be compensated for it.
Is s. 30 applicable on the facts of this case? First, s. 30(1) reads “… if the Commissioner is satisfied… that any use of land should be discontinued…” It is the Commissioner who has to be satisfied. Only then the rest of the provision will follow. It is not for the court to be satisfied and then force it on the Commissioner. What the appellant is doing here is to substitute the court for the Commissioner, to exercise the powers provided by s. 30. That is clearly misconceived. The situation here is different from that where the Commissioner has exercised his discretion under the section and the appellant applies to court for a judicial review to quash the decision by way of certiorari. In such a situation the court may look at the decision making process and other relevant factors to see whether the Commissioner has come to a decision which is legal and reasonable. But, that is not the case here. Here the court is asked to decide for the Commissioner and to direct the Commissioner to accept it as his decision. Or, to put it the other way, the court is being asked to tell the Commissioner “You must be satisfied and do what you have to do.” That is a very ridiculous proposition. To do that is to do a most injudicious act in the name of judicial review.
Secondly, sub-s. (1) of that section uses the words that any use of the land “should be discontinued” and not “is discontinued” or “has been discontinued”. What it means is that, under the scheme of the Act, if the Commissioner is satisfied that any land use is to be discontinued, eg, in the present case, the land use of “bangunan” is to be discontinued, then the Commissioner may issue the requisition notice.
In the instant case, the land use was not discontinued and the Commissioner did not decide that it should be discontinued. It remains “bangunan”. The question whether the earthworks is to be done in one or two stages has nothing to do with discontinuing the use of the lands.
Reliance was placed on what was alleged to have been said by the Chairman of the Appeal Board during the hearing of the appeal before the Appeal Board. But, the question is, what did the Appeal Board decide? For that we should look at the order. Unfortunately, the “Perintah” dated 25 August 2000 does not follow the normal format of an order. It contains what appears to be the grounds for the decision given by the Board in English followed by the order in Malay. Thus the first paragraph, in particular, has given some grounds for making the application in question. However, the only order made by board is contained in one sentence:
Adalah pada hari ini diperintahkan bahawa Rayuan ditolak dengan kos.
If anyone has any doubt what the appeal is about, the “perintah” also makes it very clear when it states:
The appeal by Gasing Meridian Sdn. Bhd for one stage approval is therefore dismissed.
Actually, the clarification by the Appeal Board was completely unnecessary. However, of the three sub-paragraphs in the clarification letter, only para (i) is of any significance and it confirms what the order says, namely, that the appeal against the decision of the respondent giving approval for the first stage and requiring an application for approval to be made subsequently was dismissed. So, the original approval of the respondent stands.
Hence para. (a) of s. 30(1) is not applicable. What about para. (b)? That paragraph talks about a situation where the Commissioner is satisfied that conditions should be imposed on the continued use of the land. In other words, even though the use of the land is not discontinued, but the Commissioner is satisfied that conditions should be imposed, then he may issue the requisition notice. Everything that we have said regarding para. (a) applies here. Again the respondent did not impose conditions on the (continued) use of the land. So, the case is not covered by para. (b) of s. 30(1).
Paragraph (c) of s. 30(1) is completely unconnected with the facts of the instant case. Paragraph (c) talks about building or work on any land should be altered or removed in which case the Commissioner, if so satisfied, may issue the “requisition notice”.
So, the provisions of s. 30 regarding the issuance of the requisition notice are not applicable to the facts of the instant case. The section clearly cannot be invoked.
In the alternative the appellant had prayed for a declaration that the order of the Planning Appeals Board dated 25 August 2000 amounted to a requisition notice under s. 30 and that the appellant be entitled to issue a purchase notice to the respondent within the definition of s. 46 of the Act and to claim for damages and other consequential orders. This, we think is a preposterous request. First, the person having the authority to issue the requisition notice, if he is satisfied, is the Commissioner, not the Planning Appeals Board. Secondly, the appeal to the Planning Appeals Board was over the two stage approval, not over the issue or the refusal or failure to issue the requisition notice. That too was the subject matter of the decision of the Planning Appeals Board.
Furthermore, it must be stressed that s. 30 does not impose a duty on the Commissioner to issue a requisition notice. It only empowers him to do so, if he is satisfied that one of the conditions required by s. 30(1) is satisfied. So, even if the conditions are satisfied (in this case, they are not) still it is a matter of discretion for the Commissioner whether to exercise the power or not. And, before exercising it he has to be satisfied that the matter falls within the provisions of the section. The court should not usurp the power given to the Commissioner, exercise it and direct the Commissioner to carry it out. On top of that mandamus, by itself, is a discretionary remedy. Even if all the conditions are satisfied (which are not), it is still within the discretion of the High Court whether to issue it or not.
On these grounds we dismissed the appeal with costs and ordered that the deposit be paid to the respondent on account of taxed costs.

M/S LAKSAMANA REALTY SDN BHD v. GOH ENG HWA

COURT OF APPEAL, KUALA LUMPUR
ABDUL HAMID MOHAMAD, JCA; MOHD NOOR AHMAD, JCA; ABDUL AZIZ MOHAMAD, JCA
CIVIL APPEAL NOS: M-02-347-2001, M-02-388-2001 & M-02-530-2001
[2004] 1 CLJ 274
BANKRUPTCY: Capacity of Bankrupt – Filing of counterclaim – Whether Bankrupt had locus standi to file counterclaim – Whether sanction of official assignee covered filing of counterclaim – Whether Property should be assigned to Bankrupt before filing of counterclaim – Whether issue on locus standi could be raised in submission and need not be pleaded – Bankruptcy Act 1967, s. 38(1)(a)

This was one of three related appeals (appeal no. M-02-388-2001) in which the court had to first decide on whether the respondent who was a bankrupt had the locus standi to file his counterclaim in respect of the appellant’s suit against him.
The issues were: (1) whether the sanction of the official assignee (‘OA’) given to the respondent under s. 38(1)(a) of the Bankruptcy Act 1967 (‘the Act’) was confined only to the respondent defending the action and not the filing of his counterclaim; (2) whether the OA should assign the property concerned to the respondent before the respondent was competent to file the counterclaim; and (3) whether the issue onlocus standi should be pleaded and not raised in submission.
Held:
Per Abdul Hamid Mohamad JCA
[1] All that is required to enable a bankrupt to maintain an action as provided by s. 38(1)(a) of the Act is to obtain the sanction of the OA. No assignment is required. The respondent was competent to file the counterclaim as he had obtained the sanction from the OA prior to his filing thereof.
[2] The requirement of a sanction is not just a formality. Without the sanction, a bankrupt is incompetent to maintain an action. It goes to his capacity. If he is incompetent to file the counterclaim without the previous sanction then the filing of the counterclaim will be null and void. The case being a nullity for lack of capacity or competency, the question of pleading does not arise. Therefore the appellant was entitled to raise the issue in the course of submission.
Diputuskan:
Oleh Abdul Hamid Mohamad HMR
[1] Seperti diperuntukkan s. 38(1)(a) Akta, apa yang diperlukan oleh seorang bankrap bagi membolehkannya memulai tindakan hanyalah suatu sanksi dari PP. Serahanhak adalah tidak diperlukan. Responden berkompeten untuk memfailkan tuntutan balas oleh kerana beliau telah pun memperoleh sanksi dari PP sebelum pemfailan yang berkaitan.
[2] Keperluan sanksi bukan satu formaliti semata-mata. Tanpa sanksi, seseorang bankrap tidak berkompeten untuk meneruskan tindakan. Ia berkait dengan kapasitinya. Jika beliau tidak berkompeten untuk memfail tuntutan balas tanpa terlebih dahulu memperolehi sanksi, maka pemfailan tuntutan balasnya akan menjadi batal dan tak sah. Apabila kes menjadi terbatal atas alasan tiada kapasiti, maka soal pliding tidak timbul lagi. Oleh yang demikian, perayu berhak untuk membangkitkan isu berkenaan semasa penghujahan.
Rayuan atas locus standi ditolak.]
[Appeal from High Court, Melaka; Civil Suit No: 22-144-1991]
Reported by Usha Thiagarajah

Case(s) referred to:
Chin Kon Nam v. Chai Yun Pin Development Sdn Bhd [1996] 1 CLJ 444 HC (refd)
K Ismail Ganey Rowther v. MA Abdul Kader [1933] 2 FMSR 98 (refd)
North Western Salt Co v. Electrolytic Alkali Co [1914] AC 461 (refd)
Ramsey v. Hartley [1997] 1 WLR 186 (refd)
Re Khoo Kim Hock [1974] 1 LNS 134; [1974] 2 MLJ 29 (refd)
Re Mat Sari Hamid ex p United Asian Bank Bhd [1993] 1 CLJ 202 HC (refd)
Sabah Bank Bhd v. Syarikat Bintang Teguh Sdn Bhd & Ors [1992] 1 LNS 41; [1992] 2 MLJ 588 (refd)
Superintendent of Lands and Surveys (4th Div) v. Hamit Matusin [1994] 3 CLJ 567 SC (refd)
Supreme Finance (M) Bhd v. Mohamad Nor & Ors [1993] 1 LNS 91; [1993] 2 MLJ 29 (refd)

Legislation referred to:
Bankruptcy Enactment 1912, s. 33(i)(a)
Bankruptcy Act 1914 [UK], s. 55(1)

Other source(s) referred to:
Malaysian High Court Practice,1998 Desk Edition, vol 1, p 482

Counsel:
For the appellant – Trevor George De Silva; M/s Shook Lin & Bok
For the respondent – B Thangaraj (Azad Bashir & Shaari Nor); M/s Bashir & Asha
For the official assignee – Rohatul Akmar Abdullah SFC

JUDGMENT
Abdul Hamid Mohamad JCA:
I have had the advantage of reading the draft judgment of my brother Abdul Aziz Mohamad who has set out the facts in great detail. In this judgment I shall only state the facts briefly.
On 11 August 1983, Laksamana Realty Sdn. Bhd. (“Laksamana”) entered into an agreement with Goh Eng Hwa (“Goh”). According to the agreement, in consideration of RM30,000 paid by Laksamana to Goh, Goh agreed, inter alia, to deliver vacant possession of the land in question by 15 August 1984. Goh failed to do so. On 7 November 1991, Laksamana filed Civil Suit No. 22-144-1991 claiming vacant possession of the said land. On 10 April 1992 Goh entered appearance. On 16 April 1992 Goh was adjudged bankrupt. As Goh did not file his defence, on 26 May 1992, Laksamana entered judgment in default. The order required Goh to deliver vacant possession in 30 days. Again Goh failed to comply. On 20 June 1995 Laksamana obtained a writ of possession.
On 8 September 1995 the official assignee wrote to the court informing the court that “kebenaran telah diberi kepada sibankrap (Goh – added) untuk meneruskan tindakan kes Guaman Sivil No. 22-144-91”.
On 15 September 1995 Goh applied for an order to set aside the judgment in default and for a stay of execution of the judgment. The application was fixed for hearing on 8 September 1995. However, one week earlier, on 1 September 1995, the writ of possession was executed.
On 17 October 1995, Goh filed another application praying for similar orders. This second application was heard and the judgment in default was set aside. An order for a stay of execution was also granted. This happened on 28 November 1995.
On 9 December 1995 Goh filed his statement of defence and counterclaim. Goh having agreed to deliver vacant possession, only Goh’s counterclaim was left to be tried. In his counterclaim, Goh alleged that Laksamana had wrongfully demolished the premises and removed certain goods of his which was subsequently lost and committed trespass on land. He claimed damages for all that.
The trial of Goh’s counterclaim commenced on 3 June 1969. On 19 September 2000, in the course of his submission, Laksamana’s counsel raised for the first time the issue of locus standi. The trial was postponed to 6 November 2000 for further submission.
On 6 November 2000 Goh filed an application to amend his statement of defence and counterclaim to add the official assignee as a party.
On 5 March 2001, the learned judge dismissed Laksamana’s objection as to Goh’s locus standi. He also dismissed Goh’s application for the amendments. Goh appealed against this order (dismissing the application to amend). That appeal is appeal No. M-02-347-2001.
On 20 April 2001, the learned judge allowed Goh’s counterclaim. He ordered Laksamana to pay Goh RM400,000 as general damages for trespass, conversion and negligence and RM50,000 as exemplary damages. He also ordered Laksamana to pay Goh RM70,000 as balance due to him under the agreement dated 11 August 1988. Laksamana appealed against that order – appeal No. M-02-388-2001. Goh also appealed against the quantum of damages – appeal No. M-02-530-2001.
When the appeal came up before us Goh’s counsel conceded that the sum of RM70,000 ought not to have been ordered. That is, therefore, set aside.
We decided to hear the issue of locus standi first, ie, in appeal number M-02-388-2001.
It was argued by learned counsel for Laksamana that Goh had no locus standi to file the counterclaim. The sanction given did not cover the filing of a counterclaim. It was also argued that the sanction under s. 38 was insufficient for Goh “to maintain any action”. The property having been vested in the official assignee, Goh had no rights or interest in the property unless it was assigned to Goh, which was not done. Lastly, it was also argued that locus standi need not be pleaded but may be raised at any time.
Section 38(1) of the Bankruptcy Act 1967 reads:
38(1) Where a bankrupt has not obtained his discharge:
(a) the bankrupt shall be incompetent to maintain any action (other than an action for damages in respect of an injury to his person) without the previous sanction of the Official Assignee.
Goh had, prior to filing the counterclaim, obtained the sanction of the official assignee. The question then is whether the sanction covers the filing of the counterclaim. The sanction, reproduced earlier, is actually the Malay translation of the relevant words of s. 38(1)(a). The short answer to the question is, if those words of s. 38(1)(a) cover counterclaim, then the same words, in Malay, should cover the filing of a counterclaim. Otherwise, it would not be necessary for Goh to obtain the sanction at all.
The next question is, is it necessary for the official assignee to assign the property to the respondent (in addition to giving the sanction under s. 38(1)(a)), before Goh becomes competent to file the counterclaim?
This calls for an examination of the relevant provisions of the Act.
Section 24(4) provides:
(4) When a debtor is adjudged bankrupt his property shall become divisible among his creditors and shall vest in the Official Assignee.
Section 38(1)(a) which has already been reproduced says that a bankrupt shall be incompetent to maintain an action without the sanction of the official assignee. The exception is as regards an action for damages in respect of an injury to his person, which is not the case here. There is no mention of divesting or assignment of the property to the bankrupt for that purpose.
Section 60 provides for the powers of the official assignee to deal with the property which includes to sell the property (s. 60(a)) and to execute any powers of attorney, deeds and other instruments for the purpose of carrying into effect of the Act (s. 60(d)).
Section 68 empowers the official assignee to allow the bankrupt to manage the property. Allowance may be given to the bankrupt for the service. Again, there is no mention of divesting or assignment of the property to the bankrupt for the purpose.
I have no doubt that the powers under s. 60(d) includes the power to execute a deed of assignment. But, that is one of the powers given to the official assignee. But must that provision be read into s. 38(1)(a) when both sections make no mention of it? I do not think so. I see no reason why the provisions of s. 60(d) should be read into s. 38(1)(a). If sanction alone is not sufficient to enable the bankrupt to maintain an action, that section would have said so, or at least a reference to it would be made in other sections. There is nothing to that effect. And, if the property is assigned to the bankrupt, there is nothing to prevent the bankrupt from disposing it. It is because the property is vested in the official assignee that the sanction of the official assignee is required for the bankrupt to maintain an action involving the property. If the property is not vested in the official assignee or if it is assigned to the bankrupt, there would be no necessity for the sanction anymore. The bankrupt, having the rights and interest in the property, clearly has an inherent right to maintain an action over it.
In conclusion, it is my view that, all that is required to enable a bankrupt to maintain an action as provided by s. 38(1)(a), is for him to obtain the sanction of the official assignee. No assignment is required. The respondent having obtained the sanction prior to his filing the counterclaim, he is competent to do so.
The other point is whether the issue of locus standi should have been allowed to be raised at all during the submission, it not having been pleaded in the statement of defence. The requirement of a sanction is not just a formality. Without the sanction a bankrupt is “incompetent” to maintain an action. It goes to his capacity. If he is incompetent to file the counterclaim without “the previous sanction” then the filing of the counterclaim without the previous sanction would have been null and void. The act being a nullity for lack of capacity or competency, the question of pleading does not arise. We see, for example, in Chin Kon Nam v. Chai Yun Pin Development Sdn Bhd [1996] 1 CLJ 444 the issue was raised as “a preliminary objection on a point of law”. In Supreme Finance (M) Bhd v. Mohamad Nor & Ors [1993] 1 LNS 91; [1993] 2 MLJ 29, in Sabah Bank Bhd. v. Syarikat Bintang Tengah Sdn. Bhd. & Ors [1992] 2 MLJ 588 and in Re Mat Sari bin Hamid, Ex Parte United Asian Bank Bhd. [1993] 1 CLJ 202 the issue arose in an application to set aside a default judgment.
So, I do not think it is right to say that to raise the issue, it must be pleaded. In the circumstances I am of the view that the appellant was entitled to raise the issue even in the course of submission. However, for reasons given earlier, it is my decision that the respondent has the locus standi to file the counterclaim.
I would dismiss the appeal on the issue oflocus standi in appeal number M-02-388-2001 with costs. A new date will have to be given for the hearing of all the three appeals on their merits.

HARMONISATIOM OF SHARI’AH AND CIVIL LAW IN MALAYSIA: PRESENT REALITY AND FUTURE ACTIONS

INTERNATIONAL CONFERENCE ON HARMONISATION OF SHARI’AH AND CIVIL LAW

Organized by
(International Islamic University Of Malaysia)
20 & 21 October 2003

HARMONISATIOM OF SHARI’AH AND CIVIL LAW IN MALAYSIA: PRESENT REALITY AND FUTURE ACTIONS

By
Dato’ Abdul Hamid bin Haji Mohamad
Judge, Federal Court of Malaysia

 

The very mention of harmonization of Shari’ah and civil law is sufficient to bring about strong reactions from two extreme groups in Malaysia. From one extreme, the reaction would most probably be: “What? Are they taking Malaysia 1400 years backward?” Or, “Are they going to make all men grow beard, wear turban and women cover their faces?” From the other extreme, the reaction would, most probably, be: “What? Mixing God-made law with man-made law?” Or: “Mixing God’s law with secular law?” Or worse.

Clearly, one group fears what it does not know. The other group condemns what it does not know. And both groups reject what they do not know. They may not be aware of the similarities in the two laws in many areas. They may overlook the fact that even in “Islamic law”, there are non-prophet human opinions too. They may not realize that even if Islamic law is implemented, a majority of the existing laws will remain, simply because we cannot now do without them and there are no traditional Islamic law on them. Both groups would be surprised to read the introduction written by David Moussa Pidcock in the book “Napoleon and Islam” that 97% of Code Napoleon was taken from the rulings of Imam Malik or that a study made in Pakistan some time ago showed that only about 10% of the laws then in force in Pakistan, which was based on the English common law, was contrary to Shari’ah. (I remember reading that statement a long time ago. But, as I am now unable to trace the source, I am relying on Prof. Hashim Kamali who had “narrated” the same to me. I have no reason to doubt the “isnad”. I consider it as “sahih”).

If we hold either of the two extreme views mentioned earlier, then this conference is a non-starter. But, it is because we do not, that we are here. So, I am not going to argue whether or not there is a need for harmonization of the Shari’ah and civil law. I shall start from the premise that we want to harmonize the two.

In this speech I shall use the term “proponents of Islamic law” to refer to people who want to introduce Islamic law in this country and the term “proponents of civil law” to refer to people who want to maintain the status quo.

As at present, the proponents of civil law are quite happy with the law of this country as it is. They certainly would like to maintain the status quo. On the other hand, it is the proponents of Islamic law who wish to “replace the civil law with Islamic law.”

Before going any further, I think a few pints should be noted first.

It must be realized that the present is not all bad and the past was not all good. Every period has its good and bad points. All that we can say, and that is no more than a matter opinion, is that on the whole, one period may be better than the other. That is all. Unfortunately, Muslims, generally, seem to look at the past the way they look at the moon: from a distance and on a clear, calm night. So, all that they see is beauty – poetic beauty. At the same time, by comparison, what they see around them, on the ground, is nothing but filth and dirt. So, to escape from the filth and the dirt around them they dream of returning to the so-called “Golden Days of Islam”. The truth is that even those “Golden Days” were not all gold. There were a lot of filth and dirt too. If Hadiths could be forged and Hajrul Aswad could be removed, carried away and kept somewhere else for twenty years, what more need be said?

The jurists of the past did not try to solve issues that did not exist then or issues that they did not know would exist centuries later. It also cannot be denied that whatever opinions they gave then on a particular matter were based on their knowledge of the facts and the law that they knew and understood and that they were also influenced by their surroundings, their perception of good and bad, right and wrong, at that time. Such perceptions change from time to time and from place to place, at least over some matters. That is why even Imam Shafi’ie is reported to have changed his rulings on certain matters after he had moved to and lived in Egypt. And that happened over a very short period of time compared to then and now.

We must come to grasp with reality of the present day. Trading is no longer the sale of prayer mats, prayer beads etc. where both the parties and the goods are present, face to face. Finance is not just a mater of borrowing money to buy food or other essentials. No developer, no investor, no entrepreneur, or at least most of them, can raise enough capital individually to finance his ventures. He has to borrow, by whatever name it is called, including from foreign sources. Companies, even countries have to borrow.

Any law, even God’s law, so long as it is interpreted my human, is bound to have differences in opinions. No one can claim that his opinion alone is the correct position in the eyes of God. Unfortunately, throughout history we find that Muslims, including scholars, seem to have a very low level of tolerance in respect of differences of opinion over Shari’ah. Unless this is overcome, it is not going to be easy to implement the Shari’ah, what more globally. In the case of Islamic banking, finance and insurance, for example, unless the scholars can come up with a uniform law I do not see how the Islamic version is going operate globally.

Any law, even God’s law, so long as it is implemented and administered by human, may, at times, lead to injustice. Basmati rice does not guarantee good “briani”, always. It depends on how it is cooked. Unfortunately, quite often, it is the rice that gets the blame, not the cook. The case of Amina Lawal in Nigeria serves as a good example. On 25 September 2003, a five-judge Katsina Sharia Court of Appeal acquitted her of adultery and quashed the sentence of death by stoning passed by a lower court on the grounds that she was not allowed to retract her alleged original “confession”, insufficient time was given to her to understand the charge, the alleged “confession” was made only once before a single judge when it should have been made at least four times before three judges. Clearly, there was a miscarriage of justice in the lower court. True that the injustice has been rectified, but think of the damage the case has done to Islamic law and Islam. That is the kind of thing that we should try to avoid. It only gives a bad name to shari’ah and Islam.

It appears to me that too much emphasis is being placed on punishment rather than on justice. So long as the punishment is imposed, no matter how, Islamic law is implemented. In some cases, those “guardians of Islam” go to the extent of taking the law into their own hands: they are the complainants, the investigators, the prosecutors, the witnesses and the judges, all in one. With respect, I beg to differ. Shari’ah is not just about punishment. It is about justice.

Faith (iman), piety and prayer (do’a) alone are not sufficient to bring Allah’s assistance in all things at all times. If faith, piety and prayer alone are sufficient to guarantee Allah’s assistance towards victory, it would not have been necessary for the Holy Prophet (s.a.w.) to seek the views of the companions as to how to defend Madinah, to adopt the suggestion of Salman, the Persian and to dig a trench around the city. The idea had to be conceived. The planning had to be done. The tools had to be procured. The manpower had to be gathered. The digging had to be done. Accompanied by prayer.

Any system, including law, imposed against popular opinion, will not last. The disintegration of communism is a recent example. Iraq may be the current example.

We must come to grasp with the reality of this country. We cannot escape from the fact that Malaysia is a multi-racial, multi-cultural, multi-religious democracy. In a democratic country, any change we want to make, must be done the democratic way. In a democracy, we cannot afford to ignore the views of a great section of the population, i.e. voters. What more when the non-Muslim population in Malaysia is about 40% of the total population. That is assuming all the 60% Muslims would support the change which is very unlikely, as most Muslims are still in the dark about what the specific law on a specific matter would be like. Indeed, I dare say that very few know, including the proponents of Islamic law, many of whom are only moved by “religious zeal” than anything else.

Falling back on the principle of the law of evidence, “the burden” is on the proponents of Islamic law to themselves have a clear picture of the Islamic law that they want to replace the existing law, to show that Islamic law is more just than civil law, to show that it is a workable system in the present world, to show that the “Islamic Court” is more efficient and more fair than the civil court and to allay the fears of and to convince the public that the implementation of Islamic law is for the general good as well as for their own good and to their benefit.

It is important, therefore, that we have a clear picture of what we want to abolish and what we want to establish. To have such a picture, it is necessary that a study of all the existing laws be made to identify which of the existing laws are contrary to Islamic law and come up with clear statements of Islamic law on the respective subjects. Only then we can compare the two.

In my view, we should pay more attention to the substance of the law rather than the form. We should look at the principles of the law rather than manner in which a thing was done centuries ago, to determine whether it is Islamic or not. The fact that something was not done in the past does not necessarily mean that, if done today, it is un-Islamic. The fact that something was done in a particular way in the past does not necessarily mean that, if is done in a different way today, it is un-Islamic. The fact that something was done in the past in a particular way does not necessarily mean that it must be done in exactly the same way, unless there are clear injunctions to the effect. Indeed, some of them may not be acceptable by today’s standard. For example, some of the “legal methods” recorded by Ibn Qayyim al-Jawziyyah as translated by Dr. Ala’eddin Kharofa under the title “The Legal Methods in Islamic Administration” are clearly unacceptable by present standard. To me, they are too arbitrary, lack transparency and open to abuse.

Comparatively, I think, the proponents of common law are, generally speaking, not very concerned with the source or the form. They look more at the substance. If it is more beneficial to them they would accept it. A good example is Islamic Banking and finance. I am sure that the non-Muslims have voluntarily resorted to Islamic banking facilities not for any religious grounds. It is simply because they know that it is more beneficial to them: they do not have to pay compound interest, they do not have to pay penalty interest, not even interest after judgment until full realization of the judgment debt. So, the longer they can prolong the repayment, the more they gain. To them, profit is “ma’ruf” and loss is “munkar”.

On the other hand, it is the proponents of Islamic law who are more concerned with form and source, at times to the extent of missing the substance. Consider these two examples:

I was told recently that some shari’ah court judges are reluctant to apply the Islamic civil procedure rules on the ground that the rules were adopted from the Subordinate Courts Rules 1980 and therefore man-made law!

I was also told that a junior shari’ah court judge was taken to task by his superior for relying on the principles developed by the civil courts in granting an injunction. The junior judge did so because he knew that injunction had its origin in the common law of England and there were no precedents from the shari’ah courts on the subject. When the junior Judge asked the senior judge what principles to follow, the senior judge replied: “Follow your firasah”.

Such closed minds are not going to help in the harmonization process, nor to convince the proponents of common law, indeed, it is, in my view, a disservice to Islam.

We have to plan our move and move forward gradually. Even Prophet Muhammad (s.a.w.), starting with iqra’ (read), took about two decades to educate the people, a period similar to what it takes to educate a child from kindergarten to Ph.D. nowadays. By the time the Muslim community and Islamic law was established in Madinah, the Prophet (s.a.w.) already had with him a generation of “Ph.Ds” plus experience in work as well as in war.

There is no point making a great leap forward and then backtracking. At the recent International Seminar on Islamic Criminal Justice System in Johor Bahru, I learnt that the Sharia Court of Appeal in Nigeria had overturned the decision of the Upper Sharia Court in Sokoto State in the case of Saffiyatu Hussaini and Yakubu Abubakar. In that case, the police had gone to Suffiyatu’s house to inquire and investigate her about her pregnancy. Suffiyatu was said to have confessed to the offence. She was convicted and sentenced with “rajm”. Yakubu denied and was discharged and acquitted. On appeal, the Sharia Court of Appeal quashed the conviction and sentence passed against Saffiyatu and acquitted and discharged her. The main ground for the reversal was (I am quoting from the paper by Prof. Dr. Ibraheem Sulaiman from the Centre of Islamic Studies, Ahmadu Bello University, Nigeria) “that the whole exercise was wrong ab initio since the sharia does not empower the state to investigate, let alone, bring to trial any pregnant woman, regardless of the nature of pregnancy.” That had led me to remark at the seminar. “If the state cannot investigate and we are only going to wait for the offenders to come forward and confess and get stoned to death, how many people are going to do that? Are we not, indirectly, encouraging “zina”?”

It should be noted that Prof. Dr. Ibraheem Sulaiman, at the seminar, stated that the implementation of the shari’ah in Nigeria “came as a surprise” and, therefore, was done in a hurry.

At that seminar, I also learnt from the Chief Justice, Federal Shariat Court of Pakistan that the Supreme Court of Pakistan set aside the decision of its Shariat Appellate Bench in Shariat Appeals No 11 to 19 of 1992, the case concerning “riba”. My check in the internet shows that an application was made to the Supreme Court for a review of the judgment. The petition number is: Civil Shariat Review Petition No. 1 of 2000. The Supreme Court, on 24 June 2002, set aside the judgment of the Shariat Appellate Bench dated 23 December 1999 that confirmed the judgment of the Federal Shariat Court given on 14 November 1991. The Supreme Court also remitted the case back to the Federal Shariat Court for fresh determination by that Court. It is interesting to note that in the proceedings before the Supreme Court of Pakistan an affidavit was affirmed by the Secretary, Ministry of Finance stating, inter alia, that the implementation of the order of the Shariat Appellate Bench was not practical or feasible and would pose a high degree of risk to the economic stability and security of Pakistan. The Deputy Governor of the State Bank of Pakistan, in his affidavit, stated, inter alia, that the State Bank of Pakistan’s considered judgment was that “a parallel approach will be in the best interest of the country….This approach will eliminate the risk of any major costs/damage to the economy, give a fair chance to Islamic banks to develop alongside the conventional banks, and will provide a choice to the people of Pakistan, and the foreigners doing business in/with Pakistan, to use either of the two systems.” That “parallel approach” is what we had introduced in Malaysia.

I am not saying whether the earlier or the later judgments in the two cases are right or wrong. I bring up this point merely to show what appears, on the face of it, to be a sign of backtracking or, at least the problems faced by the courts in those countries that we in Malaysia try to emulate in the implementation of the shari’ah. That, I think, is something that we should try to avoid. It is better to move slowly, even step by step, so long as we move forward. If, we make a big leap in the dark and then start backtracking when we see light, it is very demoralizing and very difficult to justify either the original leap, the backtracking or the next move forward. The cynics may even ask: “So, God’s law keeps changing too?”

Actually, the process of harmonization of shari’ah and civil law has been going on for more than two decades in this country except that the word “harmonization” is not used. The first category involves the rules of procedure and evidence that are now being used in the shariah courts. Examples are the Shari’ah Civil Procedure Act/Enactments, Shari’ah Criminal Procedure Act/Enactments, Shariah Evidence Act/Enactments. They are adapted from their civil equivalents, with changes “to Islamize” them or to suit their application in the shari’ah courts. In fact the shari’ah courts have gone further to try to look like the civil courts. The names of the courts, the designation of the judges, the dress of the judges when sitting in court, the manner of addressing the judges have all been borrowed from the civil courts. I call that “civilling” the shari’ah courts.

The second category involves laws administered by the civil courts. Examples are Islamic banking and finance and takaful even though, in this area the law is developed by the professionals in the field, not through detail provisions of laws enacted by Parliament.

All these prove two points. First, what is called “civil law” is not very unIslamic after all. Only certain parts that require to be harmonized with the shari’ah. Secondly, the shari’ah is applicable in the modern world with the support of the “civil law” infrastructure. That speaks well for both laws and for harmonization too.

How then should we proceed from where we are now?

My answer is that we should proceed within the confines of the Constitution. Whatever has been done and achieved has been done and achieved through work done quietly and within the framework of the Constitution. So, let us proceed in the same way but we will have to get ourselves better organized.

First, I think we will have to identify which of the existing laws are contrary to shari’ah. Then, we should decide on which area to be given priority for Islamization. I think, priority should be given to those areas in which the Malaysian public can be more easily convinced that the Islamic law on those matters is more just, less oppressive and more favorable to them than civil law and therefore more easily acceptable to the general public. “Muamalat” may be a good starting point. In this respect, I think Dr. Mohd. Ma’sum Billah has done a good job. For example, in his book “Islamic Law of Trade and Finance” he has identified the similarities and the differences of the principles of common law and Islamic law on the subject and provide the rationale for the principles in both laws for us to compare. That is the kind of “digging” that we should be doing.

Such principles of Islamic law should be absorbed into the Federal law, applicable to Muslims and non-Muslims alike. Where it is permissible by the Constitution, two sets of laws may be allowed to operate side by side. If Islamic law is the better of the two, as we believe, it should in no time, prove itself to be the better of the two and become more popular than the other. We learnt from history that even though the Hudaibiya pact appeared to be more favorable to the Quraish, it was Islam that prevailed. According to Professor Masud-ul-Hasan in his book History of Islam, the way the Muslims behaved during their pilgrimage in the year following the signing of the pact made great impressions on the Quraish that great warriors like Khalid Ibn Walid and Amr Ibn Al ‘Aas accepted Islam. It was also for the same reason that the Mongols and the Tartars, having devastated the Islamic empire and ruined its civilization, within a short period, accepted Islam and started rebuilding the civilization they had ruined. Never in history the conquerors became the conquered. There is no reason why history will not repeat itself.

I think, those areas that are more controversial, more likely to receive strong oppositions should be put aside first. One example may be “hudud”. But, there is no harm if anybody having the expertise to make a study and come with specific proposals. At least the public would know what the Islamic law is on those matters. It is better to have specific and concrete proposals than to hear fiery and emotional general statements which, as we say in relation to pleadings, “do not condescend to particulars”.

Who should do “the digging”? The short answer is: the proponents of Islamization. However, let us be pragmatic. We know this a major task. It involves a lot of work, time consuming and requires expertise both in shari’ah and civil law and practical experience.

According to the book “Islamization of Pakistan Law” by Dr. Tanzir-Ur-Rahman which was first published in 1978, the former Chief Justice of Pakistan, Mr. Justice Hamoodur Rahman who was appointed to head the Council of Islamic Ideology to work on Islamization of Pakistan law, complained that “ the lack of capable researchers in this field is seriously hampering the work of the Council.” I would be insulting many of you here if I were to say that we lack capable researchers. But, may be our researchers are not put together to do the research.

Generally speaking, those who know Islamic law do not know enough civil law and those who know civil law do not know enough Islamic law. There may be a few who know both. They can work individually or in pairs: one civil lawyer and one shari’ah lawyer.

Where are they to come from? I think, the best source is the law and the shari’ah faculties of our universities. Research is part of their job.

There must be a secretariat. But that is a matter of details that should be worked out if the suggestion is found to be feasible. May be this conference can discuss it and come up with something.

I conclusion, it is my view that unless we are brave enough to assert our right and our capability to think, unless we can think clearly in the context of today, unless we can analyze and bring the relevancy of the principles of Islamic law to the present circumstances, unless we know clearly what we want to abolish and what we want establish, unless we can convince the public that Islamic law is more just and fair and unless we can show that Islamic law can and will be implemented and administered fairly by today’s standard of justice, I do not see how our dream will come true. Dream we should but the dream should not turn into a nightmare.

Perhaps I should conclude by quoting Imam Abu Hanifah: “What I say is only my opinion. If there are better opinions, follow them.”

Thank you.

LIE KOK KEONG v. TANG CONTAINER & SERVICES SDN BHD

COURT OF APPEAL, KUALA LUMPUR
ABDUL HAMID MOHAMAD, FCJ; ABDUL KADIR SULAIMAN, JCA; ARIFFIN ZAKARIA, JCA
CIVIL APPEAL NO: P-03-6-2001                                                    [2003] 4 CLJ 288
BANKRUPTCY: Petition – Attestation – Whether creditor’s petition attested by solicitor – Proof of – No affidavit to verify – Whether petition attested in Sarawak or Penang – Whether petition properly dated – Bankruptcy Rules 1969, r. 102

BANKRUPTCY: Petition – Attestation – Authority of solicitor to attest signature in creditor’s petition – Whether advocate and solicitor of High Court in Malaya has authority to attest signature in Sarawak – Petition to be filed in Penang, effect of – Bankruptcy Rules 1969, r. 102

This was an appeal by the judgment debtor (‘the JD’) against the decision of the judge-in-chambers upholding the order of the senior assistant registrar dismissing his application to strike out the creditor’s petition filed by the judgment creditor (‘the JC’). The JD’s principal grounds of appeal were: (i) that the creditor’s petition was not dated; and (ii) that the signature of one Tang Tze Yang (‘TTY’) on the creditor’s petition was not attested in accordance with r. 102 of the Bankruptcy Rules 1969(‘the Rules).
Held (allowing the appeal):
Per Abdul Hamid Mohamad FCJ
[1] It was clear that the creditor’s petition was dated 13 September 1999. Hence, the first ground of appeal was a non-issue.
[2a] Apart from a statement from the bar, there was no evidence to support the JC’s claim that the signature of TTY on the creditor’s petition was attested by a solicitor in Kuching, Sarawak. Neither TTY nor the attesting solicitor filed any affidavits to verify such a claim.
[2b] Even if the signature of TTY was indeed attested in Sarawak, the attestation must fail for want of authority. This is because an advocate and solicitor of the High Court in Malaya, not being authorised to practice in Sarawak, has no authority to attest a signature (in a creditor’s petition) in Sarawak even though the petition is to be filed in Penang.
[Bahasa Malaysia Translation Of Headnotes
Ini adalah rayuan oleh penghutang penghakiman (‘JD’) terhadap keputusan hakim dalam kamar kerana mengekalkan perintah penolong kanan pendaftar yang menolak permohonannya untuk mengetepikan petisyen pemiutang yang difailkan oleh pemiutang penghakiman (‘JC’). Alasan-alasan utama rayuan JD adalah: (i) bahawa petisyen pemiutang tidak bertarikh; dan (ii) bahawa tandatangan seorang Tang Tze Yang (‘TTY’) pada petisyen pemiutang tidak disahkan mengikut per. 102 Peraturan-Peraturan Kebankrapan 1969(‘Peraturan’).
Diputuskan (membenarkan rayuan):
Oleh Abdul Hamid Mohamad FCJ
[1] Ianya jelas bahawa petisyen pemiutang bertarikh 13 September 1999. Oleh itu alasan pertama rayuan adalah suatu ‘non-issue’.
[2a] Selain dari kenyataan yang dibuat oleh peguamnya di dalam mahkamah, tidak ada suatu pun yang boleh menyokong dakwaan JC bahawa tandatangan TTY di petisyen pemiutang telah disahkan oleh peguamcara di Kuching, Sarawak. TTY dan peguamcara yang mengesahkan masing-masing tidak memfailkan apa-apa afidavit bagi membenarkan dakwaan tersebut.
[2b] Jikapun tandatangan TTY disahkan di Sarawak, pengesahan harus gagal kerana ketiadaan izin. Sebabnya ialah seorang peguambela dan peguamcara Mahkamah Tinggi di Malaya, yang tidak diizin beramal di Sarawak, tidak boleh mengesahkan suatu tandatangan (dalam suatu petisyen pemiutang) di Sarawak walaupun petisyen tersebut akan difailkan di Pulau Pinang.
Rayuan penghutang penghakiman dibenarkan; tiada pengesahan atau pengesahan tak sah di sisi undang-undang.]
Reported by Gan Peng Chiang
Legislation referred to:
Bankruptcy Rules 1969, r. 102
Federal Constitution, art. 1
Interpretation Acts 1948 & 1967, s. 3
Counsel:
For the appellant/debtor – Yu Meng Queng; M/s Tan, Yu & Co
For the respondent/creditor – G Arumugam; M/s Ghazi, Lim & Co
JUDGMENT
Abdul Hamid Mohamad FCJ:
In this appeal, the appellant was the judgment debtor and the respondent was the judgment creditor, in the High Court.
The respondent had filed a creditor’s petition against the appellant. The appellant filed an application to strike out the petition and the affidavit verifying petition. The application was dismissed by the senior assistant registrar. The appellant appealed to the judge in chambers who dismissed the appeal. The appellant appealed to this court.
Before us only two grounds were raised. We shall confine ourselves to those issues only.
The first ground is that the creditor’s petition was not dated.
From the record, we see that at the bottom of p. 2 of the petition the date was written thus:
Bertarikh pada 3 haribulan S 1999.
It is clear that number “1” and some letters are missing before number “3” and after letter “S”, respectively. However, on the next page (p. 3) below the “Pengindorsan” the date was clearly written as “Bertarikh pada 13 haribulan September 1999”. Further, the precipe chop on p. 1 of the petition clearly shows the date of filing as “13 September 1999”.
This ground is a non-issue. It is clear that the petition was dated and that the date is 13 September 1999. This ground is dismissed.
The second ground is that the signature of Tang Tze Yang on behalf of the judgment creditor on the creditor’s petition was not attested as required by r. 102 of the Bankruptcy Rules 1969.
Rule 102 reads:
102 Every bankruptcy petition shall be attested. If it be attested in the Federation the witness must be a Solicitor or Federal Counsel or Magistrate or Official Assignee or Registrar. If it be attested out of the Federation the witness must be a Judge or Magistrate or a Consul or Vice-Consul or a Notary Public.
The attestation reads:
(Sgd.)
Tandatangan Saksi: …
Jeyasingam Balasingam
Advocate & Solicitor
Penang
Alamat: Di Tetuan Ghazi & Lim yang Beralamat
Di Tingkat 19,
Plaza MWE, No. 8 Lebuh Farquhar
10200 Pulau Pinang.
Deskripsi: Peguambela dan Peguamcara
Mahkamah Tinggi
Negeri-Negeri Malaya.
The signing and the attestation took place on 13 September 1999.
On the other hand, the affidavit of truth of statement in petition, also affirmed by Tang Tze Yang on the same day states that it was affirmed in Kuching and before a commissioner for oaths in Kuching, Sarawak.
It was argued that Tang Tze Yang could not have signed two documents on the same day, one in Penang and one in Kuching.
The learned judge held that it was only an inference that the petition was signed and attested in Penang based on the solicitor’s firm address in Penang. In other words, the learned judge accepted the explanation from the bar by learned counsel for the respondent that the petition was signed in Kuching before the attesting solicitor who was in Kuching.
But it should be noted that no affidavit was filed by the attesting solicitor to clarify the dispute. Tang Tze Yang, who affirmed and filed four affidavits besides the affidavit of truth of statement in the petition, too did not say where his signing and the solicitor’s attestation took place.
Learned counsel for the respondent, in the course of his submission in the High Court, informed the court that the attesting solicitor in fact went to Kuching and attested the signature of Tang Tze Yang in Kuching. The learned judge appears to have accepted that assertion.
But, that is merely a statement from the bar. It is not evidence and should not have been accepted as evidence.
However, even if it is true that the attesting solicitor did go to Kuching and attested Tang Tze Yang’s signature in Kuching, that raises another point of law: Has an advocate and solicitor of High Court Malaya the authority to attest a signature in Kuching, Sarawak?
From r. 102 of the Bankruptcy Rules 1969reproduced earlier we note that if a petition is attested in the Federation, the witness must be a solicitor or Federal Counsel or Magistrate or official assignee or registrar. If it be attested out of the Federation the witness must be a judge or Magistrate or a Consul or Vice-Consul or a Notary Public.
There is no doubt an attestion in Sarawak is an attestation “in the Federation”. Sarawak is part of the “Federation” see art. 1 of the Federal Constitutionand s. 3 of the Interpretation Acts 1948 and 1967. But, does that mean that an advocate and solicitor of High Court Malaya may attest a signature in Sarawak?
The Bankruptcy Act 1967 does not interpret the word “solicitor” but it interprets the word “advocate” to mean “any person entitled to practise as an advocate or as a solicitor or as an advocate and solicitor under any law in any part of Malaysia”.
It appears that so long as a person is entitled to practise as an advocate and/or solicitor in any part of Malaysia he is an advocate for the purpose of the Act and the rules. In view of the fused profession in Malaysia this definition of “advocate” in our view applies equally to “solicitor”.
But, that still does not solve the problem. What does the phrase “entitled to practise… in any part of Malaysia” mean? Does it mean that so long as he is entitled to practise in one part of Malaysia he is authorized to attest in all parts of Malaysia?
We have no doubt that attesting a petition is “practice”. So, if we were to say that an advocate and solicitor who is entitled to practise in Malaya only may attest a petition in Sarawak, in effect we would be saying that an advocate and solicitor of the High Court Malaya may also automatically practise in Sarawak. But, that is not the law. Further more, if we were to say so, it would also mean that, if the attestation is done outside the Federation, then a Judge of Indonesia can attest the petition in Singapore. That again cannot be so. An Indonesian Judge may attest in Indonesia just as a Singapore Judge may attest in Singapore a petition to be filed in Malaysia. By way of analogy, as an advocate and solicitor in Malaya is not authorized to practise in Sarawak, he too cannot attest a petition in Sarawak even though the petition is to be filed in Penang (Malaya).
So, if the petition was attested in Sarawak it is not a valid attestation.
Was it attested in Penang then? No evidence was produced to say that the petition was attested in Penang. Indeed, that is not the respondent’s case. The respondent’s case is that it was attested in Kuching but again there is no evidence to that effect, only a statement from the bar. So, we are left in a dilemma. It is not for the court to make a finding of facts based on guesswork. It is for the respondent to produce evidence as to where the attestation took place so that the court can make a finding of facts and consider its legality. The respondent has failed to do so.
Since there is no evidence that the petition was attested either in Penang or Sarawak, and since, even if it was attested in Sarawak as claimed by the learned counsel for the respondent such attestation is done without authority, the attestation is bad in law.
We therefore allow the appeal with costs here and in the court below and order that the deposit be refunded to the appellant.

PEMBINAAN DAN PEMAJU MAHAJIWA (SELANGOR) SDN BHD v. ASM DEVELOPMENT SDN BHD (DAHULUNYA DIKENALI SEBAGAI SOBENA MAJU SDN BHD)

PEMBINAAN DAN PEMAJU MAHAJIWA (SELANGOR) SDN BHD v. ASM DEVELOPMENT SDN BHD (DAHULUNYA DIKENALI SEBAGAI SOBENA MAJU SDN BHD)
FEDERAL COURT, KUALA LUMPUR
HAIDAR MOHD NOOR, HBM; ABDUL MALEK AHMAD, HMP; ABDUL HAMID MOHAMAD, HMR
RAYUAN SIVIL NO. 02-2-2003 (W)
23 SEPTEMBER 2003
[2003] 1 LNS 517
Counsel:
Bagi pihak Perayu: Encik Yusuf Khan, Encik Mathew Thomas; Tetuan Thomas Philip, Kwa & Lou
Bagi Pihak Responden: Dato’ R.R. Sethu; Tetuan R.R. Sethu

GROUNDS OF JUDGMENT

The Appellant in this court was also the appellant in the Court of Appeal and the plaintiff in the High Court.
In 1988, the Appellant commenced Civil Suit No. D4-23-356-88. It was struck out on the ground that the writ had expired and its renewal was irregular. That suit does not concern us here.
On 1st December 1989, the Appellant commenced Civil Suit D3-22-2531-89 in the High Court at Kuala Lumpur (“the first suit”).
On 19 May 1990 the Respondent filed a summons in chambers (Enclosure 8) for an order that:
“(a) the plaintiff’s claim herein be struck out and/or stayed;”
The grounds of the application were:
“1. This action had been commenced without the authority of the Plaintiff’s board.
2. The Plaintiff’s solicitors have failed, despite demands, to produce evidence of such authority.”
On 6 September 1990, at the hearing of the summons in chambers (Enclosure 8), the notes recorded by the Senior Assistant Registrar shows that the Respondent’s counsel applied for the minute book of the Appellant to be produced for inspection by learned counsel for the Respondent as he was of the view that the resolution was backdated. The learned Senior Assistant Registrar adjourned the hearing of Enclosure 8 to 11 October 1990 for the Appellant “to supply minutes book” to the Respondent by 4th October 1990.
On 11th October 1990, the matter again came up before the Senior Assistant Registrar. The learned counsel for the Respondent complained that the Appellant did not allow the Respondent’s counsel to see the minute book to check whether the resolution was backdated. Only the particular resolution was shown. As a result the Respondent’s counsel could not determine whether the resolution was backdated.
Learned counsel for the Appellant replied: “We won’t show any other thing.” The learned Senior Assistant Registrar then recorded an order in terms. The “order in terms” clearly refers to the prayers in Enclosure 8.
The Appellant then filed a notice of appeal to the Judge in Chambers (Enclosure 10). The appeal came up before the Judge in Chambers on 25 October 1990. Both parties were absent and the learned Judge struck out the appeal.
The matter ended there.
On 21 May 1992, the Appellant filed a fresh action D3-22-723-92 (“the second suit”). The parties and the cause of action were the same as in the first suit.
The writ and the statement of claim were served on the Respondent and the Respondent duly filed its appearance.
The Statement of Claim was amended on 2 September 1992 without leave of the court.
On 10th January 1994, the Appellant applied to re amend the amended statement of claim.
On 11 January 1994, the Respondent filed a summons in chambers pursuant to Order 18 rule 19 of the Rules of the High Court ” (RHC 1980)”, inter alia, for an order that “the Amended Statement of Claim dated 20.10.92 be struck out and set aside.” The principal ground was that the Appellant was “reagitating an action that was struck out for non-compliance with an order of Court” and that this amounted to an abuse of the process of the court.
On 28 June 1995, the learned Judge dismissed the application to strike out. He, however, allowed the setting aside of the amended statement of claim but made no order on the application to re-amend.
The Appellant lodged two separate appeals to the Court of Appeal. The first appeal was in respect of the setting aside of the amended statement of claim (W-02-476-95). The second was in respect of the refusal to make an order on the application to re-amend (W-02-480-95).
The Respondent cross-appealed in W-02-476-95 in relation to the refusal to strike out the second suit (D3-22-723-92).
On 17 September 1996, the Court of Appeal heard the cross-appeal first and allowed it. No grounds have been given. It is against that decision of the Court of Appeal that the Appellant appealed to this court. And this judgment is in respect of that appeal.
(The Court of Appeal also dismissed both the appeals in W-02-476-95 and W-02-480-95. The Appellant did not appeal against the dismissal of the two appeal).
On 10 February 2003 this court granted leave to the Appellant on the following issues:
“whether an order striking out an action (the “earlier action”) for non-compliance with an order in the earlier action (the “Order”) as a matter of course:
(a) prohibits the filing of a fresh action (the “fresh action”) based on the same causes of
action in the earlier action; and
(b) deems the filing of the fresh action and abuse of process; and
(c) justifies the striking out of the fresh action.”
The learned High Court Judge (as he then was) referred to two English case, i.e Janov v. Morris (1981) 3 All E.R. 780 and Bailey v. Bailey & another (1983) 3 All. E.R. 495.
The learned Judge stated the contention of the parties as follows:
“In the instant application it is the contention of the defendant that the 2nd suit was struck out for non compliance with a court order made on 6th September 1990. It is therefore an abuse of the process of court for the plaintiff to commence afresh the instant action.
The plaintiff on the other hand contended that the suit was struck out because it was commenced without the authority of the plaintiff and not because of non compliance with the order of court dated 6th September 1990.”
and continued:
“The question to be determined is whether the 2nd suit instituted by the plaintiff was struck out for non compliance with an order of court as claimed by the defendant. To answer this question it is necessary to have a close look at the application to strike out the action. The application to strike out the action (Exhibit TYH 7) states the grounds of the application are : –
1. This action has been commenced without the authority of the plaintiff’s board.
2. The plaintiff’s solicitors have failed, despite demands, to produce evidence of such authority.”
Considering the wording of the order dated 11 October 1990 and the affidavits of both parties, the learned trial Judge concluded:
“On a close examination of the summon-in-chambers and the order dated 11th October 1990 and on the affidavit evidence adduced I am inclined to believe that the order to inspect the minute book of the plaintiff was for the purpose of establishing whether the solicitors for the plaintiff had the authority to institute the action. To my mind this order was complied with. The reason for striking out, to my mind was based on the ground as stated in the summon-in-chambers.
I am convinced that the order to strike out the action was made on the ground that the action was not instituted with the authority of the plaintiff and therefore not instituted properly under the rules of the court (a situation in Bailey v Bailey) and not on the ground of the plaintiff’s disobedience of a peremptory order of the court (a situation in Janov v Morris).
Unfortunately, the Court of Appeal that reversed this decision did not give its grounds. We are left to wonder what the grounds were. Most likely, the Court of Appeal did not agree with the finding of the learned Judge that the first suit was not dismissed for failure to comply with the order of the Senior Assistant Registrar “that the Defendant be entitled to inspect the minute book of the Plaintiff’s Company” but for the reason stated in the summons in chambers i.e. the action was not instituted with the authority of the plaintiff. The learned Judge was of the view that the order of the Senior Assistant Registrar that the Respondent be entitled to inspect the minute book of the Appellant company had been complied with.
Coming back to the law. It is trite that a suit may be struck out on the ground of an abuse of the process of the court. But what amounts to an abuse of the process of the court would depend on the facts of each case.
In this case, the alleged abuse of process of the court is on the ground that there has been a failure to comply with a court order.
Let us look at some cases on this point.
In Birkett v. James (1978) A.C. 297, the plaintiff issued a writ against the defendant. The defendant filed his defence. On 28th June 1973, an order for a trial on a preliminary issues of facts was made. The order required the action to be set down for trial within 28 days. The plaintiff did not set down the suit for trial and no further steps were taken by the plaintiff on 23 July 1975, when he gave notice of intention to proceed. On 2 October 1975, the defendant applied for an order to dismiss the action for want of prosecution. It was held, inter alia, that:
“(2) The plaintiff whose action was dismissed for want of prosecution before the limitation period had expired was, save in an exceptional case, entitled to issue a fresh writ for the same cause of action….”
However, it must be pointed out that that case concerned an application to strike out a suit on the ground of want of prosecution, which is not the case before us.
In Tolley v. Morris (1979) 2 All E.R. 561 (H.L.), it was, inter alia, held that “even though there had been inordinate and inexcusable delay in prosecuting the respondent’s action, it would not be dismissed for want of prosecution because the respondent could, by virtue of her right under section 22 (of the English Limitation Act 1939) issue a fresh writ for the same cause of action.”
At page 571 of the report, Lord Diplock said:
“Disobedience to a peremptory order would generally amount to such “contumelious” conduct as is referred to in Bickett v. James and would justify striking out a fresh action for the same cause of action, as an abuse of the process of the court.”
Lord Edmund-Davies at page 571 of the report said:
“I am not presently persuaded that a person who starts an action within the limitation period is liable to have it struck out as constituting an abuse of the process of the court, for the sole reason that a previous suit instituted by him in respect of the same cause of action was itself struck out on the ground that his disobedience to the court’s orders (peremptory or otherwise) amounted to contumelious default.”
Lord Keith of Kinkel, at page 572 of the report, said:
“It is, however, the general rule tat, provided no estoppel arises by reason of res judicata or other wise and his conduct is not vexatious or an abuse of the process of the court, as plaintiff is entitled to bring successive actions founded on the same right of action until such time as the limitation period for the cause of action has expired.”
In Janov v. Morris (1981) 3 All. E.R. 780, the plaintiff instituted an action against the defendant for breach of contract. Due to an unexplained delay on the part of the plaintiff in proceeding with the action, the court ordered that the action be dismissed for want of prosecution unless the plaintiff serves a summons for direction by a certain date. The plaintiff did not comply with that order. Neither could it give any explanation. The court dismissed the action for want of prosecution. The plaintiff subsequently brought a second action against the defendant based on the same cause of action. The defendant applied for an order that the second action be struck out on the ground that it was an abuse of the process of the court under the Order 18 rule 19(1)(d) of the (English) Rules of the Supreme Court, which is in pari materia with the Order 18 rule 19 (1)(d) of the Rules of the High Court 1980 (“RHC 1980). The court struck out the second action. The Court of Appeal (England) upheld that decision. The Court of Appeal held:
“Where an action had been struck out on the ground of the plaintiff’s disobedience of a peremptory order of the court and the plaintiff commenced a second action within the limitation period raising the same cause of action the court had a discretion under RSC Ord. 18, r 19 (1) (d) to strike out the second action on the ground that it was an abuse of the court’s process. In exercising that discretion the court would have regard to the principle that court orders were made to be complied with.”
In Bailey v Bailey & Another (1983) 3 All. E.R.495, the plaintiffs first action was dismissed on the ground of plaintiff’s inordinate and inexcusable delay. The plaintiff subsequently filed a second action based on the same cause of action. The defendants applied to strike out the second action on the ground of an abuse of the process of the court. The Registrar granted the order prayed for. The learned Judge upheld the Registrar’s decision. The Court of Appeal allowed the appeal against the decision of the learned Judge. The Court of Appeal held:
“Since the plaintiff’s first appeal has been struck out for mere failure to observe the rules as to time and the second action had been commenced within the limited period, the plaintiff was entitled to proceed with the second action.”
In In re Jokai Tea Holdings Ltd. (1992) 1 W.L.R. 1196, the plaintiff (a Bank) served a request for further and better particulars of the defence. It was not answered. The plaintiff then served a summons for an order for the particulars. The time for compliance was extended. Again no particulars were supplied by the defendants. On 9 November 1987, the Registrar ordered that the particulars should be served within 56 days and that in default the points of defence should be struck out and the plaintiff should be at liberty to apply for the relief claimed. One day before the expiry of the order, the defendants issued a summons seeking to extend the time for compliance with the order, for a stay of the order and for leave to amend their defence. The plaintiff then restored its originating notice of motion for judgment. About a week later the defendants served further and better particulars of the existing points of defence. About two weeks later the defendants served the proposed amendments to the points of defence, which involved the abandonment of all the paragraphs of which particulars had been ordered and raised a different defence. The following week, the learned Judge gave judgment for the bank on the grounds of breach of the order of 9 November 1987 (ordering that the particulars be served within 56 days of the date of the order). The defendants appealed to the Court of Appeal which allowed the appeal.
Sir Nicholas Browne – Wilkinson V.-C. in his judgment discussed, inter alia, Birkett v. James (supra), Tolley v Morris (supra), Janov v. Morris (supra) thus:
“The first class of case considered in Birkett v. James is where the plaintiff has been guilty of “intentional and contumelious conduct.” Disobedience to a peremptory order is “generally” to be treated as contumelious conduct: Tolley v. Morris [1979] 1W.L.R. 592. 603. per Lord Diplock. Where there has been such contumelious disobedience not only the plaintiff’s original action but also any subsequent action brought by him based on the same cause of action will be struck out: Janov v. Morris [1981] 1W.L.R. 1389. The basis of the principle is that orders of the court must be obeyed and that a litigant who deliberately and without proper excuse disobeys such an order is not allowed to proceed. The rationale of such penalty being that it is contumelious to flout the order of the court, if a party can explain convincingly that outside circumstances account for the failure to obey the peremptory order and that there was no deliberate flouting of the court’s order, his conduct is not contumelious and therefore the consequences of contumely do not flow.
In Janov v. Morris a plaintiff whose first action had been struck out for failure to comply with an “unless” order brought a second action based on the same cause of action. The basis of the decision was that the failure to comply with the peremptory order was contumacious: see [1981] 1 W.L.R. 1389, 139H, per Watkins L.J. It is clear that the court, in reaching the conclusion that the conduct was contumacious, placed much reliance on the fact that no explanation or excuse had been given by the plaintiff for his disobedience to the order.
In my judgment, in cases in which the court has to decide what are the consequences of a failure to comply with an “unless” order, the relevant question is whether such failure is intentional and contumelious. The court should not be astute to find excuses for such failure since obedience to orders of the court is the foundation on which its authority is founded. But if a party can clearly demonstrate that there was no intention to ignore or flout the order and that the failure to obey was due to extraneous circumstances, such failure to obey is not to be treated as contumelious and therefore does not disentitle the litigant to rights which he would otherwise have enjoyed.
The questions therefore which arise in the recent case are whether, apart from the defendants’ conduct in failing to comply with the “unless” order, leave to amend the defence should be given and, if so, whether such failure to comply was contumelious. The judge did not approach the case in that way and, in my judgment, erred in principle. We must therefore exercise the discretion ourselves.”
On the failure to comply with the “unless” order by the defendants in that case, his Lordship said, at page 1205 of the report:
“In these circumstances, I consider that the defendants have given an explanation of their failure within the 56 days limited by the “unless” order either to serve the particulars ordered or obtain leave to amend the defence. Although the defendants should have acted with greater diligence, the failure to comply with the “unless” order is primarily due to the mistake as to the date of the expiry of the order and the obstructive conduct of the bank in relation to the documents. The defendants’ explanation shows that they were not defying or ignoring the court order and in the result it is, in my judgment, impossible to characterise their conduct as contumelious. Accordingly, the failure to comply with the “unless” order does not, in my judgment, provide sufficient reason for refusing to exercise the discretion of the court in giving leave to the defendants to amend their defence and thereby have a trial of the dispute on the merits.”
Parker L.J., in agreeing with Sir Nicholas Browne – Wilkinson V.-C., inter alia, said, at page 1206 of the report.
“In the present case I have no doubt that the defendants conduct was not sufficient to the punishment inflicted.”
Sir John Megaw was of the view that “The conduct of the defendants, having regard to all the
circumstances, could not be described as “contumelious”.
Two things that should be pointed out about this case are that, first, there was a peremptory order that was not complied and secondly, it was the “first case” that was in issue.
This court had occasion to consider Janov v. Morris (supra) in Lim Oh & Ors v. Allen & Gledhill (2001) 3 M.L.J. 481 (F.C.) In that case, on May 1986, the appellants instituted the first suit against two original defendants. On 13 June 1988, the appellants filed an application to amend the writ of summons to include Allen & Gledhill, the respondent, as a party to the action. On 24 January 1990, the application for amendment was granted. As required by Order 20 rule 9 RHC 1980, the amendment would have to be filed within 14 days from the date of the order. The appellants failed to do so. On 7 June 1990, the appellants obtained an order for leave to extend time to file their amended writ of summons and statement of claim of the first suit. Again, they failed to effect the amendment within the prescribed period. On 27 November 1990, when the respondent was served with the amended writ of summons and the statement of claim, the respondent took out an application to set aside the same. The learned Senior Assistant Registrar granted the application. There was no appeal against the decision of the Senior Assistant Registrar.
On 12 March 1991, the appellants filed the second suit. The respondent then applied to strike it out on grounds of res judicata and/or issue estoppel and an abuse of the process of the court. The application was allowed by the Senior Assistant Registrar. Appeal to Judge in Chambers was dismissed. (The first appeal to the Judge in Chambers and then to the Supreme Court is omitted). The learned Judge dismissed the appeal on the ground that issue estoppel applied and, therefore, the filing of the second suit constituted an abuse of the process of the court. The appellants appealed to the Court of Appeal that dismissed the appeal essentially on the same grounds as the High Court Judge. Leave was granted to the appellant to appeal to the Federal Court.
Steve Shim C.J. (Sabah and Sarawak), delivering the judgment of the Court, inter alia, said:
“It is significant to note the following undisputed facts, namely, that there was an application by the appellants (as plaintiff) to amend their writ of summons and statement of claim to include the respondent as a defendant in the first suit; that in consequence thereof, the court made an order granting the said application, the effect of which would require the appellants (as plaintiffs), as a matter of course, to comply with 0 20 r 9 of the RHC which stipulates that the amendment was to be made within 14 days from the date of the court order, otherwise the amendment would cease to have any effect; that the appellants had failed to effect the said amendment within the stipulated period and apparently without any explanation for such failure.
In our view, the factual circumstances in the instant case clearly indicated that it was not a situation where there was a mere failure on the part of the appellants to comply with the rules of court because quite obviously, there was in existence a specific court order directing the appellants to effect the amendments in compliance with the RHC. It was in the nature of a peremptory order of the court, and the appellants (as plaintiffs) failed to comply with such a peremptory order.”
After referring to Janov v. Morris (supra), the learned C.J. (Sabah & Sarawak), continued:
“Given the view which we take that there was clearly in existence a peremptory order of the court, and that the learned SAR had struck the appellants’ first suit out for disobedience of that peremptory order, we agree with the Court of Appeal’s conclusion that the appellants ought to have appealed against that decision and that the filing of the second suit, containing as it did, the same issues and relief as the first suit, amounted to a deliberate attempt to circumvent the necessary appeal procedure and therefore constituted an abuse of the process of the court.”
From the authorities it is quite clear that failure to comply with a peremptory court order that amounts to a contumelious conduct may constitute an abuse of the process of the court that gives the court the discretion not only to strike out the first suit but also the second suit. However, it is not in all cases of a breach of a peremptory court order that the discretion should be exercised in favour of striking out even the first suit. We see, for example, in Tolley v. Morris (supra), Bailey v. Bailey (supra) and In re Jokai Tea Holdings Ltd (supra) that the courts refused to strike out even the first suit. Back home, however, the second suit was struck out: Lim Oh & Ors v. Allen & Gledhill (supra).
Let us see whether the present case can be distinguished from Lim Oh & Ors v. Allen & Gledhill (supra). We see that in Lim Oh & Ors v. Allen and Gledhill (supra), the appellants failed to comply with the court order twice, once upon the making of the order to amend the writ of summons and the statement of claim, and the second time, after having obtained an order for an extension of time to file the same. That goes to the contumelious conduct of the appellant. There was no dispute about the terms of the order: to file the amended writ of summons and the statement of defence by a certain date.
In the instant case, the application (Enclosure 8) to strike out or for a stay of the Appellant’s claim was made on the ground that the action had been commenced without the authority of the Appellant’s board of directors. The second ground i.e. that the Appellant failed to produce evidence of such authority refers the “demands” by the Respondent of such evidence prior to the making of the order by the Senior Assistant Registrar. So the “failure” on the part of the appellant to produce evidence of such authority as contained in the application is not a failure or refusal to comply with an order of the court. At the hearing on 6 September 1990, the Senior Assistant Registrar ordered the Appellant “to produce minute book” of the Appellant to the Respondent. The Appellant showed the Respondent the resolution in question but refused to allow the Respondent’s counsel to check the whole minute book. The Respondent wanted to see the whole minute book in order to check whether the resolution was backdated. The Appellant did not want the Respondent to have access to other unrelated information relating to the Appellant.
What transpired on 11 October 1990 at the continued hearing of Enclosure 8 is significant. The learned counsel for the Respondent submitted that the court “should draw an adverse inference.” The Senior Assistant Registrar then made an order in terms.
First, coming back to the order of the Senior Assistant Registrar on 6 September 1990. The order that the Appellant “to supply minute book” to the Respondent is in itself rather vague. The sole ground of the application was that the suit was filed without the authority of the Appellant’s board of directors. The resolution was produced. Certainly the Respondent should not be allowed to have access to other unrelated information of the Appellant under the pretext of verifying the veracity of the resolution.
Secondly, on 11 October 1990, at the continued hearing of Enclosure 8, the sole ground argued was that the suit was commenced without the authority of the board, the learned counsel for the Respondent asked the Senior Assistant Registrar to draw an adverse inference. That can only mean that he was asking the Senior Assistant Registrar to draw an adverse inference that there was no authority. It is not surprising, therefore, that the Senior Assistant Registrar recorded an order in terms, meaning in terms of the application, that is, the suit be struck out because it was commenced without authority. In the circumstances, even the order dated 11 October 1990 did not mention that the Appellant’s claim was struck out because of non-compliance with the order that the Respondent be entitled to inspect the minute book of the Appellant. The order mentioned that such an order was made on 6 September 1990 and the summons coming up for continued hearing on 11 October 1990 and upon hearing counsel for both parties the Appellant’s claim was struck out with costs. This appears to be consistent with the submission of the learned counsel for the Respondent on 11 October 1990 that an adverse inference (that there was no authority) should be drawn.
I agree with the submission of the learned counsel for the Appellant before us that the first suit was struck out for want of authority and not for failure to comply with a court order. It would have been different if upon hearing the complaint by the learned counsel for the Respondent on 11 October 1990 and the stand taken by the Appellant, the Senior Assistant Registrar had made a further order directing that the whole book be produced for inspection by the Respondent failing which the suit would be struck out, and the Appellant failed to comply with that order. Indeed, if such an order was made, the Appellant would be entitled to appeal against such an order.
That being the case, is it an abuse of the process of the court for the Appellant to file the second suit? I do not think so.
It is true that the Appellant did not appeal against the order of the Senior Assistant Registrar striking out the first suit. But, that is a matter for the Appellant to decide. The Appellant had an option whether to try to save the first suit or to abandon it and file a fresh suit. Indeed, upon an objection being raised, if it is true that the first suit was commenced without authority, the Appellant could on its own accord, discontinue the action and file a fresh one. That clearly would not be an abuse of the process of the court. To sum up, on the facts of this case, where the appellant had two options before it, the fact that it chooses one and not the other, is not an abuse of the process of the court.
The situation in Janov v. Morris (supra) is different. In that case due to unexplained delay on the part of the plaintiff in proceeding with the action the court ordered that the action be dismissed for want of prosecution unless the plaintiff served a summons for directions by a certain date. That order was ignored. In other words, the order made it very clear that if it was ignored the suit would be struck out. But that is not the case here.
In the circumstances of this case, I am of the view that the learned Judge was right in refusing to strike out the Appellant’s second suit. So, on the facts of this case, I am of the view that there was no abuse of the process of the court on the part of the Appellant that warrants a prohibition of the Appellant from filing a fresh suit or that justifies the striking out of the fresh action on the ground of an abuse of the process of the court.
I would therefore allow the appeal with costs here and below and order that the deposit be refunded to the Appellant.
My Chief Judge (Malaya), Haidar Mohd. Noor and my brother Abdul Malek Ahmad F.C.J. have read this judgment in draft and have expressed their agreement with it.
23 September, 2003.
(DATO’ ABDUL HAMID BIN HAJI MOHAMAD)
Hakim Mahkamah Persekutuan Malaysia Kuala Lumpur.
Bagi pihak Perayu:
Bagi Pihak Responden:
Encik Yusuf Khan
Encik Mathew Thomas
Tetuan Thomas Philip, Kwa & Lou
Peguamcara & Peguambela
B-10-9, Megan Phileo Avenue
No.12, Jalan Yap Kwan Seng
50450 Kuala Lumpur.
Dato’ R.R. Sethu Tetuan R.R. Sethu Peguamcara & Peguambela Ting.4, Bgn. Chiew See Fan 5, Jalan Yap Ah Loy 50050 Kuala Lumpur.

AZIZAH SHAIK ISMAIL & ANOR v. FATIMAH SHAIK ISMAIL & ANOR

AZIZAH SHAIK ISMAIL & ANOR v. FATIMAH SHAIK ISMAIL & ANOR
FEDERAL COURT, KUALA LUMPUR
HAIDAR MOHD NOOR CJ (MALAYA); ABDUL MALEK AHMAD FCJ; ABDUL HAMID MOHAMAD FCJ
[CRIMINAL APPEAL NO: 05-49-2002(P)]
16 SEPTEMBER 2003
[2003] 2 SYA 15; [2003] 4 CLJ 281
CONSTITUTIONAL LAW: Courts – Jurisdiction – Jurisdiction of High Court and Syariah Court – Determining jurisdiction of Syariah Court, correct approach – ‘Subject matter’ approach, whether preferable – ‘Remedy’ approach, whether abandoned – Federal Constitution, art. 121(1A)

CONSTITUTIONAL LAW: Courts – Jurisdiction of High Court – Habeas corpus – Muslim child, custody – Whether High Court has jurisdiction to hear habeas corpus application – Whether custody matter within exclusive jurisdiction of Syariah Court – Whether jurisdiction of High Court ousted despite fact that Syariah Court has no power to issue habeas corpus

CRIMINAL PROCEDURE: Habeas corpus – Custody of Muslim child – Whether High Court has jurisdiction to hear habeas corpus application – Whether custody matter within exclusive jurisdiction of Syariah Court – Whether jurisdiction of High Court ousted despite fact that Syariah Court has no power to issue habeas corpus – Whether right to enforce Syariah custody-order through habeas corpus application before High Court

The applicants (natural parents) had earlier obtained an order (‘the custody order’) from the Syariah Subordinate Court for the custody of their 14-year-old daughter (‘the child’) who had, since birth, been residing with the respondents (relatives). Despite the custody order, however, the child continued to live with the respondents. Aggrieved, the applicants applied to have the respondents committed to prison for the alleged breach of the custody order. The Syariah Subordinate Court, however, refused to commit the respondents, ruling that they had shown reasonable cause since the child herself had refused to return to the applicants. The applicants did not appeal this decision.
Subsequently, the applicants filed a notice of motion in the High Court for a writ of habeas corpus seeking the production of the child for the hearing thereof and an order that she be returned to them on account of the custody order. At the hearing, the respondents raised the preliminary objection that the application, being one for the custody of a Muslim child, was within the exclusive jurisdiction of the syariah courts, and thus the civil courts, by reason of art. 121(1A) of the Federal Constitution (‘the FC’), had no jurisdiction to entertain the same. The judicial commissioner upheld the preliminary objection and dismissed the application. The applicants appealed to the Federal Court.
Held (dismissing the appeal):
Per Abdul Hamid Mohamad FCJ
[1] Pursuant to art. 121(1A) of the FC, the High Court has no jurisdiction in respect of any matter that is within the jurisdiction of the Syariah Court. It is now beyond question that, in determining the jurisdiction of the Syariah Court, the ‘subject matter’ approach is preferred. (Following Majlis Ugama Islam Pulau Pinang Dan Seberang Perai v. Shaik Zolkaffily Shaik Natar & Ors [2003] 3 CLJ 289 FC; [2003] 2 SYA 14 and Abdul Shaik Md Ibrahim & Anor v. Hussein Ibrahim & Ors [1999] 3 CLJ 539; [1999] 2 SYA 16 HC.) The ‘remedy’ approach as previously applied by the Supreme Court in Majlis Agama Islam Pulau Pinang lwn. Isa Abdul Rahman & Yang Lain [1992] 3 CLJ 1675; [1992] 1 CLJ (Rep) 201 (SC); [1991] 2 SYA 18 has been jettisoned.
[2] The ‘subject matter’ in the instant appeal was the custody of the Muslim child. Therefore, although the Syariah Court had no power to grant the writ of habeas corpus (the remedy) sought by the applicants, it still retained its jurisdiction over the whole matter respecting the custody of the child to the exclusion of the High Court. The applicants had a right to appeal against the decision of the Syariah Subordinate Court refusing to commit the respondents; they should not have gone to the High Court in an attempt to enforce the syariah custody order.
Bahasa Malaysia Translation Of Headnotes
Pemohon-pemohon (ibubapa kandung) telah memperoleh perintah dari Mahkamah Rendah Syariah (‘perintah penjagaan’) bagi penjagaan anak mereka yang berumur 14 tahun (‘kanak-kanak itu’) yang sejak lahirnya tinggal dengan responden-responden (saudara mara). Walaupun perintah penjagaan telah dikeluarkan, kanak-kanak itu masih lagi tinggal dengan responden-responden. Merasa terkilan, perayu-perayu memohon supaya responden-responden dihukum penjara kerana melanggar perintah penjagaan. Mahkamah Rendah Syariah, bagaimanapun, enggan memenjarakan responden-responden, atas alasan bahawa mereka telah menunjukkan sebab-sebab munasabah oleh kerana kanak-kanak itu sendiri yang tidak mahu balik kepada perayu-perayu. Perayu-perayu tidak merayu terhadap keputusan ini.
Perayu-perayu kemudian memfail notis usul di Mahkamah Tinggi bagi writ habeas corpus memohon supaya kanak-kanak itu dikemukakan bagi tujuan pendengaran writ tersebut serta perintah supaya beliau dipulangkan kepada mereka ekoran perintah penjagaan yang diperolehi mereka. Di pendengaran, responden-responden membangkitkan bantahan awal bahawa permohonan, yang merupakan permohonan untuk penjagaan seorang kanak-kanak Islam, termasuk dalam bidangkuasa khusus mahkamah syariah, dan mahkamah sivil, bersebabkan fasal 121(1A) Perlembagaan Persekutuan (‘PP’), tidak berbidangkuasa untuk melayaninya. Bantahan awal telah diterima oleh pesuruhjaya kehakiman sekaligus menolak permohonan. Pemohon-pemohon merayu ke Mahkamah Persekutuan.
Diputuskan (menolak rayuan):
Oleh Abdul Hamid Mohamad HMP
[1] Berdasarkan fasal 121(1A) PP, Mahkamah Tinggi tidak mempunyai bidangkuasa atas apa-apa perkara yang termasuk dalam bidangkuasa Mahkamah Syariah. Ianya sudah tidak boleh dipertikaikan lagi bahawa, dalam menentukan bidangkuasa Mahkamah Syariah, pendekatan ‘halperkara’ adalah diutamakan. (Mengikuti Majlis Ugama Islam Pulau Pinang Dan Seberang Perai v. Shaik Zolkaffily Shaik Natar & Ors [2003] 3 CLJ 289 FC; [2003] 2 SYA 14 dan Abdul Shaik Md Ibrahim & Anor v. Hussein Ibrahim & Ors [1999] 3 CLJ 539; [1999] 2 SYA 16 HC). Pendekatan ‘remedi’ sepertimana yang diterimapakai oleh Mahkamah Agung dalam Majlis Agama Islam Pulau Pinang lwn. Isa Abdul Rahman & Yang Lain [1992] 3 CLJ 1675; [1992] 1 CLJ (Rep) 201 (SC); [1991] 2 SYA 18 sudah pun ditolak.
[2] ‘Hal perkara’ dalam rayuan semasa adalah penjagaan seorang kanak-kanak Islam. Oleh itu, walaupun Mahkamah Syariah tiada kuasa untuk mengeluarkan writ habeas corpus (remedi) yang dipohon oleh pemohon-pemohon, ia masih mengekalkan bidangkuasanya terhadap perkara keseluruhan berkaitan penjagaan kanak-kanak itu dengan meminggirkan Mahkamah Tinggi darinya. Pemohon-pemohon berhak untuk merayu terhadap keputusan Mahkamah Rendah Syariah kerana enggan memenjarakan responden-responden; mereka tidak seharusnya pergi ke Mahkamah Tinggi dalam usaha untuk melaksanakan perintah penjagaan syariah.

Case(s) referred to:
Abdul Shaik Md Ibrahim & Anor v. Hussein Ibrahim & Ors [1999] 3 CLJ 539 HC; [1999] 2 SYA 16 (foll)
Majlis Agama Islam Pulau Pinang lwn. Isa Abdul Rahman [1992] 3 CLJ 1675; [1992] 1 CLJ (Rep) 201 SC; [1991] 2 SYA 18(ovrd)
Majlis Ugama Islam Pulau Pinang dan Seberang Perai v. Shaik Zolkaffily Shaik Natar & Ors [2003] 3 CLJ 289 FC; [2003] 2 SYA 14 (foll)
Sukma Darmawan Sasmitaat Madja v. Ketua Pengarah Penjara Malaysia & Anor [1999] 1 CLJ 481 CA; [1999] 2 SYA 13 (refd)

Legislation referred to:
Federal Constitution, art. 121(1A)
Counsel:
For the applicants/appellants – Darshan Singh Khaira; M/s Darshan Singh & Co
For the respondents – Ahmad Munawir Abd Aziz; M/s Lim Kean Siew & Co

Reported by Gan Peng Chiang

Case History:
High Court : [2002] 8 CLJ 65; [2002] 2 SYA 15

JUDGMENT
Abdul Hamid Mohamad FCJ:
The appellants before us are husband and wife. So are the respondents. The first appellant and the first respondent are sisters. The appellants are the natural parents of Nazirah, the child in question. Due to the first appellant’s ill-health, soon after Nazirah was born, she was given to the first respondent to be taken care of. That was in December 1987. However, in September 2000, the appellants filed a summons in Syariah Subordinate Court at Georgetown for an order of custody of the child. The respondents did not object to the summons. The Syariah Court gave the appellants the custody of the child until she reaches the age of 16 years and thereafter to be returned to the respondents. The child, however, later on went back to live with the respondents. The respondents refused to return the child to the appellants. On 21 November 2000, the appellants applied in the same Syariah Court for an order that the respondents be committed to prison for breaching the custody order. However, on 4 May 2001 the learned Syariah Court Judge dismissed the application as he found that the respondents had shown reasonable cause why they should not be committed to prison. The appellants did not appeal against that order and the child continued to live with the respondents.
On 12 December 2001, the appellants filed a notice of motion praying for the issue of a writ of habeas corpus against the respondents for them to hand over the child to the appellants.
The learned Judicial Commissioner dismissed the application on the preliminary issue that the High Court had no jurisdiction over the matter. The appellants appealed to this court. We dismissed the appeal and we now give our reasons.
Learned counsel for the appellants argued that as the Syariah Courts had no jurisdiction to issue the writ of habeas corpus, therefore the civil court had the jurisdiction. He relied on Sukma Darmawan Sasmitaat Madja v. Ketua Pengarah Penjara Malaysia & Anor [1999] 1 CLJ 481 (CA); [1999] 2 SYA 13.
This appeal has again raised the question of jurisdiction of the Syariah Court and the High Court. If the Syariah Court has jurisdiction over the matter, the High Court does not have jurisdiction over it art. 121(1A), Federal Constitution. That calls for the determination of the approach that the court should take in determining the jurisdiction of the Syariah Court.
This court has very recently decided on this point in Majlis Ugama Islam Pulau Pinang dan Seberang Perai v. Shaik Zolkaffily bin Shaik Natar & 2 Ors. [2003] 3 CLJ 289; [2003] 2 SYA 14. In that case the subject matter was the adjudication and administration of the will of a deceased Muslim, even though the respondents (plaintiffs in the High Court) had prayed for remedies of a declaration that the land in question be surrendered to the estate of Shaik Eusoff bin Shaik Latiff, deceased, a declaration that the land in question be vested upon the respondents as executors of the deceased’s estate and for an account and, in the alternative, the respondents prayed for damages and an injunction.
Haidar Mohd. Noor CJ Malaya (delivering the judgment of the court) surveyed the earlier judgments of this court, the Supreme Court as well as of the High Court and concluded:
We respectfully agree with Abdul Hamid Mohamad J. that Isa Abdul Rahman cannot be supported.
It should be noted that “Isa Abdul Rahman” is the case of Majlis Agama Islam Pulau Pinang lwn. Isa Abdul Rahman [1992] 3 CLJ 1675; [1992] 1 CLJ (Rep) 201 (SC); [1991] 2 SYA 18. In that case, even though the land and mosque in issue were a “wakaf am”, the Supreme Court held that since the real order asked for by the respondents was a perpetual injunction to restrain the appellant or its agents from demolishing the said mosque and to restrain the appellant from taking any preliminary steps to demolish the mosque and erect a commercial building on the site, and since the Syariah Courts did not have jurisdiction to issue an injunction, therefore the High Court had jurisdiction over the suit. This approach is what has become known as “the remedy approach”. Secondly, the decision of Abdul Hamid Mohamad J referred to in the judgment of Haidar Mohd. Noor CJ (Malaya) refers to the case of Abdul Shaik bin Md Ibrahim & Anor v. Hussein bin Ibrahim & Ors. [1999] 3 CLJ 539 (HC); [1999] 2 SYA 16 which adopted the “subject matter” approach.
Therefore, this court has put to rest that the subject matter approach should be adopted.
In this case, there is no doubt that the subject matter of the case is the custody of the child. That clearly falls with the jurisdiction of the Syariah Court. Even learned counsel for the appellants did not dispute that. His argument was that since the Syariah Court had no jurisdiction to issue the writ of habeas corpus, the civil court had the jurisdiction to issue the same in this case. The short answer to that argument is that habeas corpus is the remedy sought and not the subject matter of the case.
Since the subject matter in question is the custody of the child and since that is clearly within the jurisdiction of the Syariah Court, by virtue of the provisions of art. 121(1A) of the Federal Constitution, the High Court has no jurisdiction over the matter.
The appellants had a right of appeal against the order of the Syariah Court dated 4 May 2001, but failed to exercise that right. For reasons best known to them they went to the High Court to get their remedy, which, in our view, is not available to them. They had, in fact, gone to the High Court to enforce an order of the Syariah Court, by way of a writ of habeas corpus. The High Court clearly has no jurisdiction to entertain the application. The learned Judicial Commissioner was right in her judgment. For these reasons, we dismissed the appeal.

DATO’ SRI TEONG TECK LENG v. JUPITER SECURITIES SDN BHD

COURT OF APPEAL, KUALA LUMPUR
ABDUL HAMID MOHAMAD, FCJ; MOHD GHAZALI YUSOFF, JCA; FAIZA THAMBY CHIK, J
CIVIL APPEAL NO: W-03-57-00
[2003] 4 CLJ 34
BANKRUPTCY: Petition – Opposition to petition – Whether judgment debtor must file summons-in-chambers supported by affidavit – Whether sufficient to file notice in Form 16 under r. 117 Bankruptcy Rules 1969- Distinction between challenging Bankruptcy notice and Bankruptcy petition – Whether r. 18(1) Bankruptcy Rules 1969applies in respect of challenges to Bankruptcy petitions – Distinction between ‘to show cause against a petition’ and ‘to challenge a petition’ – Whether notice of intention to oppose creditor’s petition should be heard separately

This was an appeal by the debtor against the decision of the judge-in-chambers rejecting his appeal against the order of the senior assistant registrar dismissing his notice of intention to oppose the creditor’s petition. In dismissing the debtor’s appeal, the judge-in-chambers had upheld the creditor’s preliminary objection that the mere filing of the notice of intention to oppose the creditor’s petition fell short of the requirements of r. 18(1) of the Bankruptcy Rules 1969(‘the Rules’). Hence, the narrow issue that arose for decision in the instant appeal was whether, in opposing a creditor’s petition, it is sufficient that the debtor files a notice of intention to oppose the petition, or must the debtor also file a summons-in-chambers supported by an affidavit.
Held (allowing the appeal):
Per Abdul Hamid Mohamad FCJ
[1a] Where a judgment debtor wishes only to show cause against a creditor’s petition, all he has to do is to file a notice in Form 16 (under r. 117) of the Rules specifying the statements in the petition which he intends to deny or dispute. The requirement of filing a summons-in-chambers supported by an affidavit under r. 18(1) of the Rulesappears to apply only in respect of a challenge to a bankruptcy notice and not a bankruptcy petition. Consequently, the debtor in the instant appeal, having filed a notice of intention to oppose the creditor’s petition, would not have to file a summons-in-chambers.
[1b] Furthermore, a distinction may also be drawn between the phrases ‘to show cause against a petition’ and ‘to challenge a petition’. In the case of the former (which was also the situation in the instant appeal) the procedure is governed by r. 117 (Form 16) of the Rules. However, in the case of the latter – where for example the judgment debtor wants to apply to set aside the creditor’s petition – a summons-in-chambers has to be filed.
Per curiam:
[1] There should not have been a separate hearing for the debtor’s notice of intention to oppose the creditor’s petition; it should have been considered at the hearing of the creditor’s petition. A statement of defence is not heard separately from the hearing of the claim.
[Bahasa Malaysia Translation Of Headnotes
Ini merupakan rayuan dari penghutang terhadap keputusan hakim dalam kamar yang menolak rayuan beliau terhadap perintah penolong kanan pendaftar yang menolak notis pemberitahuan niatnya untuk menentang petisyen pemiutang. Ketika menolak rayuan penghutang, hakim dalam kamar telah mengesahkan bantahan awal pemiutang bahawa pemfailan semata-mata notis pemberitahuan niat tidak memenuhi keperluan k. 18(1) Kaedah-kaedah Kebankrapan 1969 (‘Kaedah’). Oleh yang demikian, isu yang berbangkit untuk keputusan dalam rayuan semasa ini adalah samada, di dalam menentang petisyen pemiutang, ianya memadai jika penghutang memfailkan satu notis pemberitahuan niat untuk menentang petisyen, atau adakah penghutang mesti memfailkan juga satu saman dalam kamar yang disokong oleh afidavit.
Diputuskan (membenarkan rayuan):
Oleh Abdul Hamid Mohamad HMP
[1a] Jika penghutang penghakiman hanya berhajat untuk tunjuk sebab terhadap petisyen pemiutang, apa yang perlu dibuatnya hanyalah memfailkan satu notis dalam Borang 16 (dibawah k. 117) Kaedah sekaligus menetapkan pernyataan-pernyataan di dalam petisyen yang ingin dinafikan atau dipertikaikan. Keperluan untuk memfailkan saman dalam kamar yang disokong oleh afidavit dibawah k. 18(1) Kaedah nampaknya hanya terpakai apabila sesuatu notis kebankrapan hendak dipertikaikan dan bukan terhadap petisyen kebankrapan. Oleh sebab itu, penghutang dalam rayuan semasa, dengan memfailkan notis pemberitahuan niat untuk menentang petisyen pemiutang, tidak perlu lagi memfailkan satu saman dalam kamar.
[1b] Selanjutnya, terdapat satu perbezaan diantara ungkapan ‘untuk tunjuk sebab terhadap satu petisyen’ dan ‘untuk menentang petisyen’. Dalam kes yang terdahulu (yang merupakan situasi dalam rayuan ini) prosedurnya ditetapkan dibawah k. 117 (Borang 16) Kaedah. Manakala, dalam kes yang kemudian – dimana penghutang penghakiman umpamanya ingin memohon untuk mengenepikan petisyen pemiutang – satu saman dalam kamar hendaklah difailkan.
Per curiam:
[1] Adalah tidak perlu notis pemberitahuan niat penghutang untuk menentang petisyen pemiutang didengar secara berasingan; ianya adalah wajar dipertimbangkan semasa pembicaraan petisyen pemiutang. Satu pernyataan pembelaan tidak didengar berasingan dari tuntutan.
Rayuan penghutang dibenarkan; perkara diremitkan ke Mahkamah Tinggi untuk pendengaran rayuan penghutang atas merit.]
Reported by Gan Peng Chiang

Case(s) referred to:
Datuk Lim Kheng Kim v. Malayan Banking Bhd [1993] 3 CLJ 324SC (dist)
Re Ngan Chin Wen ex p Moscow Norodny Bank Ltd [1996] 2 CLJ 943HC (foll)

Legislation referred to:
Bankruptcy Act 1967, s. 3(1)(i)
Bankruptcy Rules 1969, rr. 18(1), 117
Rules of the High Court 1980, O. 14, O. 18 r. 19
Counsel:
For the appellant/debtor – K Balaguru (Paul Ong & Olivia Ho); M/s Paul Ong & Assoc
For the respondent/creditor – CS Kumar (Desmond Ng & YT Lim); M/s Shui Tai

JUDGMENT
Abdul Hamid Mohamad FCJ:
On 14 April 1998 Jupiter Securities Sdn. Bhd., the judgment creditor in the High Court and the respondent here (“the judgment creditor”) obtained summary judgment under O. 14 of the Rules of the High Court 1980(“RHC 1980”) against Dato’ Sri Teong Teck Leng, the judgment debtor in the High Court and the appellant here (“the judgment debtor”) and another person by the name of Loh Kon Wah. The judgment debt was for RM2,460,377.66 and interest of RM161,003.15, further interest and costs.
On 2 July 1998, a request for a bankruptcy notice to be issued against the judgment debtor was filed.
On 14 September 1998, the bankruptcy notice was personally served on the judgment debtor.
On 30 September 1998, the judgment debtor filed a summons in chambers (encl. 5) for an order that the whole of the bankruptcy proceedings not limited to the creditor’s petition and the bankruptcy notice dated 2 July 1998 be struck out and set aside.
Alternatively, it was prayed that the whole of the bankruptcy proceedings be stayed until the disposal of the notice of appeal to the judge in chambers dated 17 April 1988 against the summary judgment dated 14 April 1988 is disposed off.
There was no mention under which rule the application was made, but it must have been under r. 18, Bankruptcy Rules 1969(“the Rules”).
On 22 December 1998 a creditor’s petition dated 15 December 1988 (encl. 10) was filed.
On 23 February 1999, encl. 5 was heard and dismissed with costs.
On 24 February 1999, a notice of appeal to the judge in chambers was filed against the order dismissing encl. 5.
On 1 April 1999, the creditor’s petition was served on the judgment debtor.
On 8 April 1999, the judgment debtor filed a notice of intention to oppose the creditor’s petition (encl. 13). The ground stated in the notice was:
… I intend to dispute any outstanding sum owing to the judgment creditor amounting to the said RM2,842,321.61.
So, the only ground of objection was that the judgment debtor disputed the amount of the debt as stated in the creditor’s petition.
On 19 April 1999, the judgment debtor filed an affidavit in support of the notice of intention to oppose the creditor’s petition.
On 24 September 1999, the senior assistant registrar heard and dismissed encl. 13, ie, the notice of intention to oppose the creditor’s petition.
On 27 September 1999, the judgment debtor filed a notice of appeal to the judge in chambers against the order of 24 September 1999.
On 15 October 1999 the senior assistant registrar heard the creditor’s petition (encl. 10). Adjudicating and receiving orders were made.
On 18 October 1999, the judgment debtor filed a notice of appeal to the judge in chambers (encl. 35) against the order of the senior assistant registrar made on 15 October 1999.
On 12 May 2000 Steve LK Shim J (as he then was) dismissed the appeal on a preliminary objection raised by the learned counsel for the judgment creditor.
The judgment debtor appealed to this court.
It should be noted that the learned judge decided on a preliminary objection that the notice of intention to oppose the creditor’s petition had not complied with r. 18(1) of the Bankruptcy Rules 1969(“the Rules”). The learned judge cited a passage from the judgment of Mohd. Dzaiddin SCJ (as he then was) in Datuk Lim Kheng Kim v. Malayan Banking Bhd[1993] 3 CLJ 324:
Looking at the appellant’s ‘affidavit in opposition’, it appears that he had jumbled up every conceivable ground of opposition he could think of in this affidavit, which not only includes grounds raised in enclosure 3, but also the submissions of law and pleas for the court to exercise its discretion judicially and in the interest of justice. Bearing in mind that this ‘affidavit in opposition’ was filed one month after the creditor’s petition was served on him and contained multitude of grounds other than the existence of a counter-claim or set-off or cross-demand, he should have made a formal application by motion supported by this affidavit in compliance with r. 18… In our opinion, failure on the part of the appellant to follow r. 18 renders his ‘affidavit in opposition’ ineffective and bad in law because unless the court otherwise directs, challenges to the creditor’s petition or bankruptcy notice other than that he has a counter-claim, set off or cross-demand which equals or exceeds the judgment debt, must be made by filing a notice of motion supported by an affidavit.
The learned judge then went on to say:
It seems clear from the parts underscored above that, in His Lordship’s view, any challenge to the creditor’s petition under r. 117, (on grounds other than the existence of a counter-claim, set-off or cross-demand), has to be made by filing a notice of motion (now a summons-in-chambers), supported by an affidavit pursuant to r. 18. Given the legal position enunciated by the highest judicial authority, I have to conclude that the filing of the Notice of Intention to Oppose the Creditor’s Petition in the instant case, in which the JD is merely disputing the amount claimed by the JC, constitutes a challenge to the Creditor’s Petition and therefore it is incumbent on the JD to file a summons-in-chambers supported by an affidavit in compliance with r. 18 Bankruptcy Rules. The JD has obviously failed to do so. It is insufficient for the JD to merely file in the said Notice of Intention to Oppose.
From the grounds of judgment that was the only ground on which the learned judge decided the case, without considering the merits of the petition.
Before us, besides attacking the judgment on that ground, Mr. K. Balaguru, learned counsel for the judgment debtor also submitted that the receiving order and the adjudicating order should not have been made simultaneously. The learned judge did not deal with this issue.
The minutes of the proceedings do not reflect what transpired before the learned senior assistant registrar, who heard the petition and made the receiving order and adjudicating order. The notice of appeal to the judge in chambers, by its nature or form, does not contain any indication whether that was one of the grounds of appeal to the judge in chambers. So we do not know what was actually argued before him. Again, in an appeal to a judge in chambers, a memorandum of appeal is not required to be filed. So again, we are unable to know from the memorandum of appeal whether that was one of the grounds of the appeal to the judge in chambers.
The notes of proceedings recorded by the learned judge showed that, at the outset of the submissions before him, the learned counsel for the judgment debtor said that he wished to raise four points, one of which was that the learned senior assistant registrar ought not to have granted an adjudicating order at the hearing of the creditor’s petition. To that ground, learned counsel for the judgment creditor replied that it should not be canvassed as it was only made known to him the previous day. To that objection, learned counsel for the judgment debtor replied that he could not have raised it before the senior assistant registrar as he would not know the mind of the senior assistant registrar. Learned counsel for the judgment creditor then informed the court that he was not ready to submit on that ground due to the short notice. The appeal to the judge in chambers was then adjourned to 5 April 2000.
On 5 April 2000, learned counsel for the judgment debtor began his submission by raising the preliminary submission mentioned earlier. It is to be noted that both counsel only argued on the preliminary objection. No mention was made of the ground that both the Receiving Order and the Adjudicating Order should not have been made simultaneously. At the end of their submissions the learned judge recorded that he thought that the preliminary objection was “a significant one”. So, he reserved his decision to 12 May 2000 on which date he delivered his judgment dismissing the appeal with costs. He also recorded “Preliminary Objection sustained.”
It is clear therefore, why, in his judgment, the learned judge did not deal with that ground, but only with the preliminary objection.
Coming back to the main ground raised in the preliminary objection, the issue is simply whether, to oppose a creditor’s petition, it is sufficient that a notice of intention to oppose the creditor’s petition be filed or must the judgment debtor also file a summons in chambers pursuant to r. 18 of the Rules.
Before going any further, it is worthwhile to mention that there are two stages in a bankruptcy proceeding, namely, the notice stage and the petition stage. In this appeal, we are only concerned with the petition stage. How does a judgment debtor show cause against the creditor’s petition? Is it sufficient for him to file a notice of intention to oppose the creditor’s petition (Form no. 17, r. 117)? Must he also file a summons in chambers under r. 18?
Rule 117 provides:
117. Where a debtor intends to show cause against a petition he shall file a notice with the Registrar specifying the statements in the petition which he intends to deny or dispute and transmit by post or otherwise to the petitioning creditor and his solicitor if known a copy of the notice three days before the day on which the petition is to be heard. (emphasis added).
The form provided is Form No.16. The substantive part of the form merely provides:
I, the above…, do hereby give you notice that I intend to oppose the making of a receiving order as prayed and that I intend to dispute the petitioning creditor’s debt (or the act of bankruptcy, as the case may be).
In our view, where the judgment debtor only wishes to show cause against the petition, all he has to do is to file a notice in Form No. 16 specifying the statements in the petition which he intends to deny or dispute. That is all he has to do. This has been correctly pointed out by James Foong J in Re Ngan Chin Wen ex p Moscow Norodny Bank Ltd[1996] 2 CLJ 943. In that case, the judgment debtor filed a notice to oppose the petition pursuant to r. 117 of the Bankruptcy Rules 1969followed by an affidavit alleging that he had satisfied the judgment debt by paying a sum of US$200,000 to the petitioning creditor as full and final settlement of the judgment debt. The judgment debtor had not made an application or file an affidavit to set aside the bankruptcy notice within seven days of the service of the bankruptcy notice pursuant to s. 3(1)(i) of the Bankruptcy Act 1967. The learned judge held that by filing a notice to oppose the petition pursuant to r. 117, the judgment debtor had a right to be heard even though he had not complied earlier with s. 3(1)(i) of the Act. However, the judgment debtor’s opposition at the hearing must be confined strictly to matters provided under ss. 5(1) and 6(2) of the Act.
The problem faced by the learned judge in the instant case actually arose from three words ie, “bankruptcy petition or” in the judgment of Mohd. Dzaiddin SCJ in Datuk Lim Kheng Kim v. Malayan Banking Bhd. (supra) that was quoted by him. The sentence “… challenges to the creditor’s petition or bankruptcy notice other than that he has a counterclaim… must be made by filing a notice of motion supported by an affidavit” has been understood by the learned Judge to mean that even to show cause against a petition, a summons in chambers under r. 18 must be filed.
Perhaps, it is unfortunate that both creditor’s petition and bankruptcy notice were mentioned in the same sentence. But if we bear in mind the two stages, the confusion could be avoided. It is also quite unfortunate that the mention of “counterclaim” etc. immediately after the words “challenges to the creditor’s petition or bankruptcy notice…” gives the impression that, a challenge on the ground that a debtor has a counterclaim etc. may be made at the creditor’s petition stage. That is not so and cannot be so because such a challenge may only be made at the bankruptcy notice stage, in fact within seven days after the service of the bankruptcy notice. And, until that issue is determined, no act of bankruptcy is deemed to have been committed (r. 95(2)) which would mean that the creditor’s petition cannot even be filed yet. This is confirmed in Datuk Lim Kheng Kim ‘s case (supra).
So, the reference to counterclaim etc. in that passage only refers to a challenge to the bankruptcy notice. Such challenge may be made by filing an affidavit in Form No. 7 under r. 95. But, a challenge to the bankruptcy notice on other grounds may only be made by filing a summons in chambers under r. 18.
As we have said earlier, the inclusion of the words “creditor’s petition or” in that sentence is rather unfortunate. But, we think that even that can be explained if we draw a distinction between “to show cause against a petition” and “to challenge a petition”. In the case of the former, the method is provided by rule 117 (Form No. 16). But, where the debtor wants to apply to set aside the petition on other grounds, eg, for non-compliance with the rules regarding the petition, then a summons in chambers must be filed. This is understandable because such grounds arise separately from the statements in the petition and therefore cannot be “specified” in the notice (Form No. 16). The difference between the two may be likened to a defendant in a civil suit who wants to defend the action and a defendant who wants to strike out the writ and the statement of claim. In the case of the former, he merely files a statement of defence. In the latter case, he has to file a summons in chambers under O. 18 r. 19 RHC 1980.
In the instant case, a notice of intention to oppose the creditor’s petition pursuant to r. 117 was filed. That would be sufficient to entitle the debtor to oppose the petition. He does not have to file further a summons in chambers for the purpose. We are of the view therefore that the judgment of the learned judge cannot be supported and the appeal should be allowed and the case be remitted back to the High Court for further hearing of the appeal to the judge in chambers on merits, which had not been done. We also think that it is premature for us to decide on the second issue, ie, whether an adjudicating and a receiving order can be made at the same time. The parties had not argued the issue before the learned judge and the learned judge had not decided on it. We would like to clarify that this further hearing of the appeal need not be heard by the same judge (as he then was) who had heard this appeal.
We also note that in the instant case, the learned senior assistant registrar first heard encl. 13 (notice of intention to oppose the creditor’s petition) and after deciding on encl. 13, heard the creditor’s petition three weeks later.
We are of the view that there should be no separate hearing of the notice of intention to oppose the creditor’s petition. It is to be considered at the hearing of a creditor’s petition, just as a statement of defence is not heard separately from the hearing of the claim. It may be different in the case of an application by way of a summons in chambers to strike out the creditor’s petition. Even then, for the sake of expediency, unless, for some reasons, it is not practical, the summons in chambers should be heard together with the creditor’s petition.
We also note that the learned judge heard the appeal purely on the preliminary objection. This practice, as far as possible, should be avoided. It delays the disposal of the petition. This case is a good example. Five years after the commencement of the bankruptcy proceedings, this court is only hearing and deciding an appeal on the preliminary objection.
We hereby allow the appeal with costs here and in the court below and order that the deposit be refunded to the appellant.

SIOW YOON KEONG v. H ROSEN ENGINEERING BV

SIOW YOON KEONG v. H ROSEN ENGINEERING BV
COURT OF APPEAL, KUALA LUMPUR
ABDUL HAMID MOHAMAD, JCA; ABDUL KADIR SULAIMAN, JCA; RICHARD MALANJUM, JCA
CIVIL APPEAL NO: W-03-103-96
30 AUGUST 2003
[2003] 4 CLJ 68

COMPANY LAW: Directors – Offences by Directors – Director using funds of Company to speculate in Shares under his own name – Losses in trading passed to Company – Director recovering losses for himself in preference to Company’s creditors – Whether there was intention to defraud creditors – Companies Act 1965, s. 304(1)

CIVIL PROCEDURE: Declaration – Discretion to grant declaration – Whether judicial commissioner correctly exercised discretion – Companies Act 1965, s. 304(1)

H. Rosen Engineering B.V. (‘Rosen’) had obtained summary judgment against Ventura Industries Sdn Bhd (‘Ventura’) for the payment of a sum of RM423,000, which was the balance owed by Ventura to Rosen pursuant to an agency agreement between the two companies. Rosen then commenced an action against the appellant, who was the managing director of Ventura, seeking: (1) a declaration that the business of Ventura had been carried out with intent to defraud the creditors of Ventura, especially Rosen, or for a fraudulent purpose; (2) a declaration that the appellant, being a knowing party to such practices, should be liable for the sum in question; and (3) an order that the appellant pays Rosen the balance sum of RM423,000. The learned judicial commissioner (‘JC’) (as he then was), in referring to the provisions of s. 304(1) of the Companies Act 1965(‘the Act’), declared the appellant liable and ordered him to pay Rosen the sum of RM392,479.81 resulting in this appeal. The principal issues were whether, on the facts: (1) the case fell within the ambit of s. 304(1) of the Act; and (2) this was a fit and proper case for the learned JC (as he then was) to make such a declaration.
Held:
Per Abdul Hamid Mohamad JCA
[1] In the present case, Ventura should have paid Rosen the RM423,000 upon receiving it but failed to do so; instead, the appellant, being the alter ego of Ventura, used the money or part of it to invest in the share market under his own name. Then, upon realising that he was going to incur losses in his investments, he caused a resolution to be passed by the Board of Directors to ratify the investments and the use of the company’s funds, including that which was due to Rosen, for the investments. As a result, he had bailed himself out and the losses were passed on to the company; thus, Rosen could not be paid. By any standard, civil or criminal, there was clearly an intention to defraud Rosen or it was all done for a fraudulent purpose. Therefore, on the facts, it was clear that a case had been made out under s. 304(1) of the Act.
[2] The learned JC (as he then was) clearly addressed his mind to the provisions of s. 304(1) of the Act, discussed at length the meaning of “fraud” and “fraudulent purpose”, and indeed referred to the very same cases cited by learned counsel. It was also clear from the judgment that he did make findings of facts that constitute “intent to defraud creditors” and “for any fraudulent purpose”. Furthermore, the learned JC (as he then was) was perfectly right to rely on the facts stated in the affidavits. Thus, he had confined his consideration of the case to undisputed facts and had correctly exercised his discretion in making the declaration that he did.
[Bahasa Malaysia Translation Of Headnotes
H. Rosen Engineering B.V. (‘Rosen’) telah memperoleh penghakiman terus terhadap Ventura Industries Sdn Bhd (‘Ventura’) untuk pembayaran satu jumlah sebanyak RM423,000, yang merupakan baki yang terhutang oleh Ventura kepada Rosen selaras dengan satu perjanjian ejensi antara kedua-dua syarikat tersebut. Rosen kemudiannya telah memulakan satu tindakan terhadap perayu, yang merupakan pengarah urusan Ventura, memohon: (1) satu perisytiharan bahawa perniagaan Ventura telah dijalankan dengan niat untuk memfraud pemiutang-pemiutang Ventura, khasnya Rosen, atau bagi tujuan fraud; (2) satu perisytiharan bahawa perayu, yang merupakan pihak yang mengetahui amalan-amalan yang sedemikian, haruslah bertanggungjawab bagi jumlah yang dipersoalkan; dan (3) satu perintah bahawa perayu hendaklah membayar Rosen baki jumlah sebanyak RM423,000. Pesuruhjaya kehakiman yang bijaksana (‘JC’) (seperti mana beliau ketika itu), dalam merujuk kepada peruntukan-peruntukan s. 304(1) Akta Syarikat 1965 (‘Akta’), mengisytiharkan perayu bertanggungan dan telah memerintahkan beliau membayar kepada Rosen jumlah sebanyak RM392,479.81 yang mengakibatkan rayuan ini. Isu-isu utama adalah sama ada, berdasarkan fakta-fakta: (1) kes di sini terlingkung di dalam lingkungan s. 304(1) Akta tersebut; dan (2) ini adalah kes yang sesuai dan wajar untuk JC yang bijaksana (seperti mana beliau ketika itu) untuk membuat keputusan yang sedemikian.
Diputuskan:
Oleh Abdul Hamid Mohamad HMR
[1] Dalam kes semasa, Ventura seharuslah telah membayar Rosen jumlah sebanyak RM423,000 setelah menerimanya tetapi telah gagal berbuat sedemikian; sebaliknya, perayu, yang merupakan “alter ego” Ventura, telah menggunakan wang tersebut atau sebahagian daripadanya untuk melabur dalam pasaran saham di bawah namanya sendiri. Kemudian, setelah menyedari bahawa beliau akan mengalami kerugian dalam pelaburan-pelaburan beliau, beliau telah menyebabkan satu resolusi diluluskan oleh Lembaga Pengarah untuk meratifikasikan pelaburan-pelaburan dan penggunaan dana-dana syarikat, termasuk yang kena dibayar kepada Rosen, untuk pelaburan-pelaburan tersebut. Akibatnya, beliau telah menyelamatkan dirinya dan kerugian-kerugian tersebut telah dialihkan kepada syarikat; dengan itu, Rosen tidak boleh dibayar. Di ukur dari apa jua standard, sivil atau jenayah, jelas terdapat niat untuk memfraud Rosen atau bahawa ia telah dilakukan bagi tujuan fraud. Oleh itu, berdasarkan fakta-fakta, adalah jelas bahawa satu kes di bawah s. 304(1) Akta telah dibuktikan.
[2] JC yang bijaksana (seperti mana beliau ketika itu) jelas mengambilkira peruntukan-peruntukan s. 304(1) Akta membincangkan dengan panjang lebar maksud “fraud” dan “fraudulent purpose”, dan sesungguhnya merujuk kepada kes-kes yang sama yang telah disebut oleh peguam yang bijaksana. Adalah juga jelas daripada penghakiman bahawa beliau telah membuat dapatan fakta yang membentuk “intent to defraud creditors” dan “for any fraudulent purpose”. Lagi pun, JC yang bijaksana (seperti mana beliau ketika itu) adalah sesungguhnya betul bilamana bergantung ke atas fakta-fakta yang dinyatakan di dalam afidavit-afidavit. Jelas bahawa beliau telah menumpukan pertimbangan kepada fakta-fakta yang tidak dipertikaikan dan telah dengan betulnya melaksanakan budi bicaranya dalam memberikan perisytiharannya itu.
Rayuan ditolak.]
Reported by Suresh Nathan

Case(s) referred to:
Hardie v. Hauson [1959-60] 105 CR 451 (refd)
Ozinsky No v. Lloyd & Ors [1992] 3 SA 396 (refd)
PJTV Denson (M) Sdn Bhd & Ors v. Roxy (Malaysia) Sdn Bhd [1980] 1 LNS 55; [1980] 2 MLJ 136 (refd)
R v. Graham [1984] 2 All ER 166 (refd)
R v. Grantham [1904] 3 All ER 166 (refd)
R v. Grauthan [1984] 3 All ER 166 (foll)
Re a Company (No 001418 of 1988) [1991] BCLC 197 (foll)
Re a Company (No 001418 of 1988) [1991] BCLC 198 (refd)
Re Augustus Barnett & Son Ltd [1986] BCLC 170 (refd)
Re FP & CH Matthews Ltd [1982] 1 All ER 338 (refd)
Re Gerald Cooper Chemicals Ltd [1978] 2 All ER 49 (refd)
Re Patrick and Lyon Ltd [1933] 1 Ch D 786 (refd)
Re Sarflax Ltd [1979] 2 WLR 202 (refd)
Re William C Leitch Bros Ltd [1932] 2 Ch 71 (refd)
Royal Brunei Airlines Sdn Bhd v. Tan Kok Ming Philip [1996] 2 CLJ 380HC (refd)
Simon & Ors v. Mitsui and Co Ltd & Ors [1997] (2) SA 475 (refd)
Tay Bok Choon v. Tahansan Sdn Bhd [1987] 1 CLJ 441; [1987] CLJ (Rep) 24PC (foll)

Legislation referred to:
Companies Act 1965, ss. 304(1), 305
Rules of the High Court 1980, O. 14
Companies Act 1942 [UK], s. 332(1)
Counsel:
For the appellant – Siow Yoon Keong; M/s Chai Yow San & Co
For the respondent – WM Chang; M/s Raja, Darryl & Loh

JUDGMENT
Abdul Hamid Mohamad JCA:
By a writ action No. D3-22-1033-91 H. Rosen Engineering B.V. (“Rosen”) sued Ventura Industries Sdn. Bhd. (“Ventura”) claiming for payment of a sum of RM423,000, interest and costs. That amount was for the balance that Ventura should pay Rosen under an Agency Agreement dated 1 August 1989 between them. On 28 May 1992 Rosen obtained a summary judgment against Ventura under O. 14 of the Rules of the High Court 1980(“RHC 1980”).
On 28 December 1995 Rosen took out an Originating Summons No. D2-24-432-95 against Siow Yoon Keong, the appellant in this appeal. Rosen sought, in brief:
(a) A declaration that the business of Ventura had been carried out with intent to defraud the creditors of Ventura, especially Rosen or for a fraudulent purpose;
(b) A declaration that the appellant was knowingly a party to the carrying on of the business of Ventura in that manner and shall be personally responsible, without any limitation of liability, for the debt or other liabilities of Ventura to Rosen.
(c) An order that the appellant pays to Rosen the balance sum of RM423,000 together with interest for which a judgment had been obtained by Rosen against Ventura.
On 11 April 1996, on the application of the appellant, it was ordered that the originating summons be proceeded as if it was commenced by a writ action and that the affidavits therein filed be treated as pleadings.
However, on the date fixed for hearing the parties, by consent, agreed as follows:
All the documents in Bundle “A” and “C” are agreed documents, but not the contents therein.
As for bundle “B” – all the affidavits do stand as pleadings and the exhibits are agreed documents except “CB7” at page 101-104; the certified copy of which is in Bundle “C” at page 6-14.
After a short adjournment at the request of both counsel, further agreements were reached by them. The record shows as follows:
Court:
At the request of both counsels; the matter was adjourned for 20 minutes to agree on the facts and to decide if the calling of witnesses as (sic) necessary! It has been decided that Bundle “B” all the facts stated in the affidavits are agreed facts. However, all the allegations in the affidavit are denied. Further any state of mind stated in the affidavits are also denied. In addition the following facts are agreed upon:
(i) It was the defendant who had negotiated the deal with Petronas Gas Sdn. Bhd.;
(ii) Some of the proceeds of the Petronas contract was used to buy the shares;
(iii) After the shares sold, the proceeds of sale were used to pay the defendant RM523,248/ and the amount then due to the plaintiff was RM423,000. The sum of RM523,248/ was the amount under loan made by the defendant to his company by Mr. Siow Yoon Keong who is a Director in charge of the management. There were then two other directors – namely the defendant’s wife Phoon Ching Heong – without any shareholding in the company – except as a Director. The other Director was Tuan Bidari bin Tan Sri Datuk Mohd, with 120,000 shares. The defendant had 80,000 shares.
(iv) The defendant never informed the plaintiffs; and the plaintiff never knew at all material times about the transactions relating to the shares.
In view of these agreed facts, both counsels have now agreed not to lead any further evidence but shall submit their case.
So, no oral evidence was led. Both counsel made their respective submissions.
On 16 November 1996 the learned Judicial Commissioner (as he then was) made the following order:
(1) That the defendant do personally pay the plaintiffs the balance sum due and owing under the Judgment dated the 28th day of May 1992 obtained by the plaintiffs against the Company – (Ventura Industries Sdn. Bhd.) vide Kuala Lumpur High Court Suit No. D3-22-1033-91 in the sum of RM392,479.81 together with all interest thereon at the rate of eight per cent per annum calculated from the 23rd of March 1993; until the date of full realisation by the plaintiffs from the defendant herein; together with all costs payable by the defendant to the plaintiffs on a solicitor and client basis.
The appellant appealed to this court.
The learned Judicial Commissioner (as he then was) in his grounds of judgment, referred to the provisions of s. 304(1) of the Companies Act 1965under which the relief was sought. That sub-section provides:
304 (1) If in the course of the winding up of a company or in any proceedings against a company it appears that any business of the company has been carried on with intent to defraud creditors of the company or creditors of any other person or for any fraudulent purpose, the court on the application of the liquidator or any creditor or contributory of the company may if it thinks proper so to do declare that any person who was knowingly a party to the carrying on of the business in that manner shall be personally responsible, without any limitation of liability, for all or any of the debts or other liabilities of the company as the court directs. (emphasis added)
Having done that, the learned Judicial Commissioner (as he then was) went on to say:
2. In order for the plaintiff to succeed, it must be proved that the business of Ventura Industries Sdn. Bhd. (“the Company”) has been carried on by the defendant as its Managing Director with intent to defraud its creditors or for any fraudulent purpose.
3. The issue is therefore whether the facts show such an intent to defraud or a fraudulent purpose.
He then discussed the facts in great detail and concluded:
16. In conclusion, I would state that Ventura had sufficient liquid funds at the relevant time to discharge the debt owing to the plaintiff; but the Director used these funds to speculate on the stock exchange and then passed on the resulting loss to the Company whilst recovering for himself in full, his own funds used in that speculative activity. As a result, the Company had become insolvent.
The learned Judicial Commissioner (as he then was) then noted that:
… the claim is grounded on two grounds, namely:
(i) that he had used the Company funds to purchase shares in his own name without first seeking prior approval from the Company; the fact that he has arranged with the Company subsequently to ratify his investments does not make his unauthorised use of the Company funds in the first place proper; and
(ii) that he had repaid to himself; an unsecured creditor, his so-called advances to the company out of the proceeds of sale of the investments at the expense of the trade creditor of the Company whose debt was first in time to that of the Director’s advance if any – as an act of misfeasance.
and continued:
18. The question that is now posed is “Do these facts lead to any or strong presumption that the business of the Company was carried out by the defendant with intent to defraud the creditors or for fraudulent purpose within the ambit of section 304(1) of the Companies Act 1965; and if so on a finding of fact whether the court would make a declaration to the effect that the defendant was knowingly a party to the carrying on of the business in the manner, to make the defendant personally liable (responsible), for all or any of the debts of the Company? The basic question is how extensive an interpretation is to be given to the word “fraud”.
He then discussed the meaning of the word “fraud” and “fraudulent purpose”. He referred to the case of Re William C. Leitch Bros. Ltd. [1932] 2 Ch. 71. Then, the coming back to the case before him he continued:
21. The test of the facts before this court show the conduct of the defendant as a Managing Director of the Company deriving for himself an unfair advantage over that of a creditor to whom he was a bare trustee and owned to himself the last preference in priority over the surplus of the Company’s funds. His conduct in preferring himself in payment over the priority of trade debts by signing a cheque to himself constituted an intention to defraud; or at least a fraudulent preference – morally not acceptable by the commercial world – as it is a dishonest conduct; and act of misfeasance for ones own purpose or benefit and this court will not lend its hand or support in the act of such dishonesty.

24. The defendant herein used the plaintiffs money in share Investments in his personal name. He took a risk which was clearly an unauthorised transaction; and a risk of this nature should be to his own account and to be made accountable to the company for the losses caused to the Company’s and the creditors money. He had no right to risk the funds in speculation to the prejudice of the plaintiff right; he is “guilty of commercially unacceptable conduct in the particular context involved”. Acting in reckless disregard of others’ right or possible rights can be a tell-tale sign of dishonesty.
25. In short; was the defendant fulfilling the Role of “The Reasonable Expectations of an Honest Businessman?” Keeping in mind “that honesty is the best policy” the defendant was expected to live to the standards to be observed by honest businessmen and not of an unconscionable conduct contrary to good conscience. The law of equity and good conscience is to be the order to be adopted in such commercial transactions to make good the resulting loss to an innocent person whose trust in the defendant has been betrayed by his misconduct. The defendant holding 199,999 shares out of 200,000 shares was the Company; and the Company was the defendant; and their state of mind is imputed to each other. This was not a case where the Company’s money was simply lost in the ordinary course of the business being poorly administered; but upon a wrong with no right to employ the Company’s money in the purchase of shares in his own name creating a loss; resulting in the Company being unable to pay the plaintiffs; thus becoming insolvent. “It is the trite law that no one – having such duties to discharge, shall be allowed to enter into engagements in which he has; or can have, a personal interest conflicting; with the interest of those to whom he was bound to protect or answerable. So strict is this principle adhered to that no question is allowed to be raised as to the fairness or unfairness of a contract so entered into” Aberdeen Ry. Co. v. Blaikie Bros [1854] 1 Macq. 461, 471.
Dato’ C.V. Das, learned counsel for the appellant, in opening his submission, noted that this was the first case in this country under s. 304 of the Companies Act 1965. He noted that the only issue was whether a director could be made to personally pay the amount due from his company to Rosen, the respondent. He then submitted on the scope of s. 304. He posed the question whether s. 304 could apply to an agency situation where money due to the principal (Rosen) was retained by the agent (Ventura). The learned counsel submitted that s. 304 does not apply where the complaint is that the agent is wrongfully retaining money due to the principal. It is not directed at agency trading but at directors of a company who knowingly incurs credit when the company is not able to pay the debt.
The learned counsel further submitted that “fraud” within s. 304 is “actual fraud” or “deliberate dishonesty”. It is not fraudulent, he submitted, to prefer one creditor in preference to another, including the company’s own director or shareholder, unless there is dishonesty. He cited a number of English cases like Re Williams C. Leitch Brothers, Ltd [1932] 2 Ch. D 71, Hardie v. Hauson [1959-60] 105 CR 451, Re a Company (No. 001418 of 1988) [1991] BCLC 197, R v. Grauthan [1984] 3 All ER 166.
The learned counsel also noted that the liability is both civil as well as criminal. Therefore, strict interpretation must be given.
The learned counsel then went on to submit on the meaning of “intend to defraud” and “fraudulent purposes”. He cited Re Patrick and Lyon, Limited [1933] 1 Ch. D 786, Hardie v. Hanson [1959-60] 105 CLR 451. In Re Sarflax Ltd [1979] 2 WLR 202. He submitted that the learned Judicial Commissioner (as he then was) did not apply the proper test. Instead he went on “commercial morality”. He drew the attention of the Court to the South African case of Ozinsky No v. Lloyd and Others [1992] 3 SA 396.
The learned counsel also submitted that the learned Judicial Commissioner (as he then was) had to make a finding of actual fraud, which he did not do. In any case he could not do merely by reading affidavits. He then cited the case of Simon and Others v. Mitsui and Co. Ltd. and Others [1997] (2) SA 475; Tay Bok Choon v. Tahansan Sdn Bhd[1987] 1 CLJ 441; [1987] CLJ (Rep) 24.
In conclusion the learned counsel submitted that the learned Judicial Commissioner (as he then was) had invoked s. 304 wrongly. Rosen had sued Ventura for payment of a debt and had obtained judgment against Ventura. He submitted that Rosen should have proceeded under s. 293 of the Companies Act 1965 or treat that the funds were held by the directors as bare trustee (citing P.J.T.V Denson (M) Sdn Bhd & Ors v. Roxy (Malaysia) Sdn Bhd [1980] 1 LNS 55; [1980] 2 MLJ 136 or proceeded under s. 305 of the Companies Act 1965and cited Royal Brunei Airlines Sdn Bhd v. Tan Kok Ming Philip[1996] 2 CLJ 380.
We are of the view that the issue is the interpretation of s. 304(1) and whether the facts of this case fall within the meaning of that subsection. It does not matter whether the relationship between Rosen and Ventura is one of principal and agent or otherwise. It does not matter whether the section carries both civil and criminal liabilities. It does not matter whether there are other remedies. The question is whether on the facts, the case falls within the ambit of s. 304(1) or not and whether this is a fit and proper case for the learned Judicial Commissioner (as he then was) to make the declaration that he did.
In the context of the facts of this case, the subsection provides that if “it appears that any business of the company has been carried on with intent to defraud creditors of the company…. or for any fraudulent purpose, the court on the application of… any creditor… of the Company if it thinks proper so to do declare that any person who was knowingly a party to the carrying on of the business in that manner shall be personally responsible, without any limitation of liability, for all or any of the debts… of the company as the Court directs.”
The section is very clear. It is a matter of making a finding of facts and decide whether the facts fit the provision of the subsection or not.
Let us now scrutinize the provisions of that subsection. It begins with “if in the course of the winding up of a company or in any proceedings against a company…”. The English equivalent, s. 332(1) of the Companies Act 1942 does not contain the words “or in any proceedings against a company…” No argument was put forward on this part of the subsection. So, we decide to say nothing on it.
We now come to the phrase “any business of the company has been carried out…”
The relevant facts as found by the learned Judicial Commissioner (as he then was) with which we have no reason to differ are that Rosen had completed the works under a contract between Rosen and Petronas Gas Sdn. Bhd (“Petronas) dated 24 March 1990, Petronas had made payments to Ventura totaling RM1,067,100. Under an agreement, Ventura would retain 20 per cent thereof and remit the balance of 80% to Rosen. Ventura paid a sum of RM423,000 to Rosen but failed to pay the balance of RM423,000. What happened to the money? The appellant, as Managing Director of Ventura had used Ventura’s funds to invest in shares on the stock exchange under his own name, instead of discharging the debt to Rosen. Having acquired the shares, partly using Ventura’s funds and partly his own funds, the appellant realised that he was about to incur losses on his investments. He then arranged for a company resolution to ratify all his past investments making himself a trustee for Ventura. In that way, he legitimised the use of Ventura’s funds for his own speculative investments and recovered his personal losses in full from Ventura.
Was the business of the company being carried out? We have no problem answering the question in affirmative, without even referring to any authorities. Resolution was passed to ratify the investments and the use of the company’s funds for the purpose of investments, perhaps more correctly, “speculations”. The company’s funds were used to pay the losses of the appellant. Rosen, to whom RM423,000 was due, was not paid. These acts in our view constitute “carrying on of business of the company.”
We see that in R. v. Graham [1984] 2 All ER 166, a criminal case, the obtaining of credit for the company was held to be carrying on the business of the company.
In Re Augustus Barnett & Son Ltd. [1986] BCLC 170 providing letters of comfort to a subsidiary was also held to be “carrying on the business” of the company, even though on the facts of that case was held not to be fraudulent.

In Re Sarflax Ltd. [1979] 2 WLR 202, it was held
(i) that the expression “carrying on any business was not necessarily synonymous with actively carrying on trade, and accordingly the collection of assets acquired in the course of business and the distribution of the proceeds thereof in payment of debts could constitute the carrying on of “any business” for the purpose of section 332 of the Companies Act 1948.
In Re FP & CH Matthews Ltd. [1982] 1 All ER 338 involves payments of two cheques into the company’s current account with the bank thereby clearing the company’s overdraft. It was held that it fell within the meaning of the phrase “carrying on the business of the company”.
In the present case, by passing a resolution to ratify the investment and the use of the company’s funds for the purpose of the investments and by paying the “loans” of the appellant the company, in our view, was clearly “carrying on business”.
Next we come to the phrase “with intend to defraud creditors… or for any fraudulent purpose”. First, we would like to note that the phrase should be read disjunctively even though on the facts of the case both limbs are relevant and applicable.
In Re William C. Leitch Bros. Ltd. [1932] 2 Ch. 71 Maugham J held at p. 77 that “if a company continues to carry on business and to incur debts at a time when there is to the knowledge of the directors no reasonable prospect of the creditors ever receiving payment of those debts, it is, in general, a proper inference that the company is carrying on business with intend to defraud.”
In Re Patrick & Lyon Ltd. [1933] Ch. 786 the same judge said at p. 790 that fraud in the context of fraudulent trading connotes “actual dishonesty involving, according to current notions of fair trading among commercial men, real moral blame.”
In R v. Grantham [1904] 3 All ER 166, a criminal case, it was held by the Court of Appeal (England) that:
Where a person who takes part in the management of a company’s affairs obtains credit or further credit for the company when he knows that there is no reason for thinking that funds will become available to pay the debt when it becomes due or shortly thereafter he may be found guilty of an offence under section 332 of the Companies Act 1948 of carrying on the company’s affairs with intend to defraud creditors of the company.
In Re Gerald Cooper Chemicals Ltd. [1978] 2 All ER.49, Templeman J, held:
(1) For the purpose of s. 332(1) it did not matter that only one creditor was defrauded and that he was defrauded by one transaction, provided that the transaction could properly be described as a fraud on a creditor perpetuated in the course of carrying on business. C Ltd. carried on its business with intend to defraud H Ltd. if it accepted the purchase price in advance knowing that it could not supply the indigo and would not repay the £125,698.32.
In Re a Company (No. 001418 of 1988) [1991] BCL C 198, it was inter alia, held:
(1) A person was knowingly party to the business of a company having been carried on with intent to defraud creditors if (a) at the time when debts were incurred by the company he had no good reason for thinking that funds would be available to pay those debts when they became due or shortly thereafter and (b) there was dishonesty involving real moral blame according to current notions of fair trading.
Note that R v. Grantham [1984] BCLC 270 was followed.
Of course all those cases were decided and all those statements were made in the context of the facts of each case.
In the present case, the RM423,000.00, when received by Ventura from Petronas should be paid to Rosen. Ventura did not pay Rosen. Instead, the appellant, the alter-ego of Ventura used it or part of it to invest in share market in his own name. Then, realising that he was going to lose in the investment he caused a resolution to be passed by the Board of Directors to ratify the investment and the use of the company’s funds including that which is due to Rosen, for the purpose. As a result he had himself bailed out and the losses were passed to the company. Rosen could not be paid.
By any standard, civil or criminal, clearly there was an intention to defraud Rosen or that it was done with fraudulent purpose. Note that the section only uses the term “if it appears” which indicates that a lower degree of proof is required. But, even on a higher degree of proof, the result would be the same
It must be stressed that the passing of the resolution was done when it was already clear that losses had been incurred and that there was no way of recovering them. It is at that stage that the company passed the resolution, the effect of which was that the losses were fully transferred to the company. Not only that. By paying the appellant, the appellant escaped from his personal losses and the company was left with no funds to pay the debt owed to Rosen. It is very clear that the intention was to defraud Rosen, the creditor. It is also equally clear that it was all done for fraudulent purpose.
On the facts, we are clearly of the view that a case has been made out under s. 304(1) and the learned Judicial Commissioner (as he then was) was right in making the declaration that he did.
Even though this point was not taken up by learned counsel for the appellant, we think we should clarify what appears to be contradictory statements regarding the shareholding of Ventura. The agreed facts states that the Appellant owned 80,000 shares of the company and one Tuan Bidari bin Tan Sri Datuk Mohd. owned 120,000 shares. On the other hand, in his grounds of judgment, the learned Judicial Commissioner (as he then was) stated that the appellant owned 199,999 of 200,000 shares of the company.
Actually, both statements are correct. We see, for example, from the audited account of the company as at 1 July 1990 and as at 1 July 1992, the appellant owned 199,999 shares while his wife owned one share. However, the Company Search Report dated 10 July 1995 shows that as at 31 December 1994 the appellant owned 80,000 shares while Haji Bidari Tan Sri Datuk Mohd. owned 120,000 shares. In his affidavit, the appellant affirmed that Hj. Bidari Tan Sri Datuk Mohd. acquired the 120,000 shares on 29 May 1991. We do not know the circumstances leading to the acquisition of the shares by Hj. Bidari Tan Sri Mohd. But, it must be noted that the investment in the share market took place in late 1990 and early 1991. The shares of the company were sold to Hj. Bidari Tan Sri Datuk Mohd on 29 May 1991. On 30 June 1991 (one month later) the company passed the resolution ratifying the investments and as at the same date (30 June 1991) the appellant claimed that the company owed him RM523,248 in the form of loans given by him to the company.
It was argued by learned counsel for the appellant that the learned Judicial Commissioner (as he then was) did not make a definite finding of fraud and in any even he could not do it on affidavit evidence alone.
Reading the judgment, part of which we have reproduced, we are unable to agree with the submission. The learned Judicial Commissioner (as he then was) clearly addressed his mind to the provisions of s. 304(1), discussed at length the meaning of “fraud” and “fraudulent” purpose, and indeed referred to the very same cases cited by the learned counsel to us. It is also clear from the judgment that he did make findings of facts that constitute “intend to defraud creditors” and “for any fraudulent purpose”.
Regarding the argument that the learned Judicial Commissioner (as he then was) could not have made such findings of facts based on affidavit evidence alone, again, with respect, we are unable to agree.
The case of Tay Bok Choon, supra, a Privy Council judgment cited by the learned counsel for the appellant was in respect of a petition for winding up. It was inter alia, held:
(3) if allegations are made in affidavits by the petitioner and those allegations are credibly denied by the respondent’s affidavits, then in the absence of oral evidence or cross-examination, the judge must ignore the disputed allegations. The judge must then decide the fate of the petition by consideration of the undisputed facts;
(4) in this case the Board is satisfied that the judge confined his consideration of the petition to the undisputed facts and rightly concluded that the petitioner had made out his case that it was just and equitable to wind up the company;
It is clear that the law is not that, so long as an allegation of fact made by one party in an affidavit is denied by the other party, the court must automatically shirk for making a finding of fact, even though the denial is merely a bare denial and contemporaneous documents are in evidence. The court may also decide on facts as agreed, as in Tay Bok Choon, (supra).
In this case, the proceedings that began by an originating summons (which it should not) was converted to a writ action and all affidavits filed were to be treated as pleadings.
(Even though this is allowed by the rules, we would not encourage such practice. A solicitor should know from the very beginning or, at the very least, after the defendant has filed his affidavit in reply, whether the action is one that should be begun by a writ action or by way of an originating summons. Secondly, contents of affidavits and pleadings are different in nature. Pleadings contain statement of facts while affidavits contain statement of facts and also evidence, including documentary exhibits. Thirdly, it causes confusion in the statistics kept by the registry. Fourthly, it also causes confusion in the preparation of the record of appeal, subsequently. A party beginning an action by way of an originating summons when he should have begun by a writ should withdraw the originating summons and file a fresh writ action. He should realise that if he does not do so, he may be estopped from filing a fresh action if the court, after hearing the originating summons on affidavit evidence alone dismisses it).
On the date fixed for hearing, as soon as the first witness stepped into the witness box, both parties requested for a short adjournment to agree on the facts and the documents. What they agreed to was recorded by the learned Judicial Commissioner (as he then was) which has already been reproduced earlier.
Mr. Chan Yow San, learned counsel for Rosen, drew the court’s attention that Rosen was only relying on the agreed facts and the appellants own documents, and not on the disputed facts in the affidavits.
Indeed that was what the learned Judicial Commissioner (as he then was) did. He relied on the audited accounts of Ventura for years ended 30 June 1991 and 30 June 1992. These documents were exhibits to the appellant’s affidavits. Indeed, we notice that the appellant’s own affidavits admit the material facts as found by the learned Judicial Commissioner (as he then was).
It must also be noted that the record shows that all the facts stated in Bundle “B” were agreed by the parties. “Allegations” and “statements regarding the state of mind” are not. Documents in Bundle ‘A’ and Bundle ‘C’ were agreed documents but not the contents therein. The exhibits, except “CB7” were also agreed documents.
The learned Judicial Commissioner (as he then was) was perfectly right to rely on the four agreed facts (reproduced earlier) and the facts stated in the affidavits. Even with regard to Bundle ‘A’ and Bundle ‘C’, the court was perfectly entitled to examine them and, in the absence of credible denial, drew whatever conclusion he could from them. Otherwise their inclusion had no purpose whatsoever.
In conclusion, like the Privy Council in Tay Bok Choon, supra, we are satisfied that the learned Judicial Commissioner (as he then was) had confined his consideration of the case to undisputed facts and rightly made his findings of facts and also rightly exercised his discretion to make the declaration which he did pursuant to the provisions of s. 304(1) of the Companies Act 1965.
We therefore dismiss the appeal with costs. We order that the deposit be paid to the respondent towards taxed costs.

PP lwn. DATO’ WAAD MANSOR

MAHKAMAH RAYUAN, KUALA LUMPUR
ABDUL HAMID MOHAMAD, HMR; MOHD GHAZALI YUSOFF, HMR; HASHIM YUSOFF, HMR
RAYUAN JENAYAH NO: N-05-65-99
[2003] 3 CLJ 833
UNDANG-UNDANG JENAYAH: Ordinan 22 (Kuasa-kuasa Perlu) Dharurat 1970 – Seksyen 2(1) – Rasuah – Melakukan perbuatan rasuah dengan menggunakan kedudukan awam untuk kepentingan kewangan – Sama ada keputusan hakim Mahkamah Tinggi untuk membebaskan responden betul – Sama ada hakim Mahkamah Tinggi tersalah arah – Sama ada responden patut disabit

PROSEDUR JENAYAH: Hukuman – Sama ada hukuman adalah setimpal – Melakukan perbuatan rasuah dengan menggunakan kedudukan awam untuk kepentingan kewangan – Sama ada hukuman penjara perlu dijatuhkan – Sama ada hukuman denda sudah memadai

Responden dituduh dengan tiga pertuduhan di bawah s. 2(1) Ordinan No. 22 (Kuasa-kuasa Perlu) Dharurat 1970 kerana melakukan perbuatan rasuah dengan menggunakan kedudukan awam beliau untuk kepentingan kewangnya. Responden telah dipanggil membela diri di atas ketiga-tiga pertuduhan itu, tetapi dibebaskan di akhir kes pembelaan. Pendakwa Raya merayu, dan mahkamah ini membenarkan rayuan itu dan menjatuhkan hukuman denda sebanyak RM15,000, dan jika tidak bayar, enam bulan bagi setiap pertuduhan. Pendakwa Raya merayu terhadap hukuman.
Isteri responden beserta dua orang lagi telah menubuhkan sebuah syarikat (‘Teraju Nusantara’), dan telah memohon sebidang tanah kuari; permohonan ini yang menjadi perkara (‘subject matter’) pertuduhan-pertuduhan itu. Responden telah hadir dalam ketiga-tiga mesyuarat (ketiga-tiga tarikh pertuduhan tersebut) mengenai permohonan tersebut tetapi gagal mengtisytiharkan kepentingannya dalam Teraju Nusantara. Responden juga telah berjumpa Dato’ Rosie Tan, “financier” sebuah syarikat (‘Henro Bina’), untuk berbincang berkenaan penjualan tanah kuari itu oleh Teraju Nusantara kepada Henro Bina, dan satu perjanjian telah dimeteraikan dua bulan selepas pertemuan itu. Walaupun hakim Mahkamah Tinggi menerima semua fakta-fakta tersebut, beliau telah melepas dan membebaskan responden atas alasan bahawa ada kemungkinan bahawa responden, pada ketiga-tiga dalam pertuduhan itu, mempercayai bahawa isteri responden sudah pun melupuskan kepentingannya dalam Teraju Nusantara, sebelum tarikh pertama dalam pertuduhan itu.
Diputuskan:
Oleh Abdul Hamid Mohamad HMR
[1]Mahkamah ini mensabitkan responden atas dua alasan. Pertama, berdasarkan dapatan fakta yang dibuat oleh hakim Mahkamah Tinggi itu sendiri, keputusannya membebas dan melepaskan responden itu tidak dapat dipertahankan. Ini adalah kerana penglibatan responden sendiri adalah jelas dalam mesyuarat-mesyuarat yang responden sendiri hadir dan dalam penjualan tanah kuari itu. Malah, responden sendiri pun menerima RM150,000 daripada Dato’ Rosie Tan. Kedua, hakim Mahkamah Tinggi itu telah tersalah arah apabila memutuskan bahawa ada kemungkinan bahawa responden percaya isterinya sudah tiada kepentingan lagi dalam Teraju Nusantara pada ketiga-tiga tarikh itu. Ini antara lain, kerana, selepas ketiga-ketiga tarikh itu pun, responden bersama-sama Dato’ Rosie Tan dan lain-lain pergi melawat tanah kuari itu. Di samping itu, responden dan isterinya juga telah pergi ke pejabat Dato’ Rosie Tan untuk berbincang mengenai penjualan tanah kuari itu. Responden sendiri menerima RM150,000 dan isterinya menerima RM130,000, dan isterinya menandatangani perjanjian menjual sahamnya dalam Teraju Nusantara kepada Henro Bina.
[2]Berdasarkan fakta dan keadaan dalam kes ini, hukuman penjara tidak perlu dijatuhkan. Kesalahan ini tidak patut disamakan dengan kesalahan-kesalahan jenayah merompak, pecah amanah, merogol dan sebagainya, dan orang yang melakukan kesalahan ini tidak patut diklasifikasikan bersama-sama penjenayah-penjenayah itu. Permohonan tanah kuari tersebut dan kelulusannya tidak salah. Yang salahnya, walaupun bunyinya hebat iaitu “melakukan perbuatan rasuah”, sebenarnya ialah kerana responden berada dalam bilik mesyaurat itu semasa permohonan itu dipertimbangkan dan diluluskan. Permohonan itu boleh diluluskan tanpa kehadirannya dan dalam keadaan itu, kelulusan diperolehi juga dan responden tidak bersalah.
[2a]Melakukan perbuatan rasuah dan menyalahguna kuasa untuk kepentingan diri sendiri, apatah lagi jika ia merugikan bangsa dan negara, adalah suatu perbuatan yang serius, tetapi hakikatnya, dalam kes ini, tidak lebih daripada responden hadir dalam mesyuarat-mesyuarat itu semasa permohonan itu dipertimbangkan, disokong atau diluluskan. Responden memang mendapat faedah kewangan tetapi hukuman yang diterima oleh responden sudah lebih daripada faedah itu. Kerjaya politiknya hancur dan jawatan-jawatan yang dipegangnya hilang dan tidak mungkin diperolehi semula. Nama baiknya tercemar dan dari segi kewangan pun, responden telah, dan akan, terus rugi. Dalam keadaan ini, hukuman penjara tidaklah perlu dan hukuman denda yang dikenakan itu pun sudah memadai.
Dilaporkan oleh Suresh Nathan

Case(s) referred to:
Dato’ Seri Anwar Ibrahim v. PP [2002] 3 CLJ 457FC (dibezakan)
Dato’ Seri Anwar Ibrahim v. PP [2000] 2 CLJ 695CA (dibezakan)
Hj Abdul Ghani Ishak & Anor v. PP [1981] 1 LNS 96; [1981] 2 MLJ 230 FC (dirujuk)
Nunis v. PP [1982] 2 MLJ 114 FC (dirujuk)
PP v. Dato’ Hj Mohamed Muslim Hj Othman [1982] 1 LNS 71; [1983] 1 MLJ 245 (dirujuk)
PP v. Dato’ Seri Anwar Ibrahim (No 3) [1999] 2 CLJ 215HC (dibezakan)
PP v. Datuk Hj Sahar Arpan [1999] 3 CLJ 427HC (dirujuk)
PP v. Datuk Tan Cheng Swee & Anor [1978] 1 LNS 150; [1980] 2 MLJ 276 FC (dirujuk)

Legislation referred to:
Emergency (Essential Powers) Ordinance No 22 1970, s. 2(1)
Counsel:
Bagi pihak perayu – Nordin Hassan TPR; Jabatan Peguam Negara
Bagi pihak responden – Christopher Fernando; T/n Aris Rizal, Christopher Fernando & Co

PENGHAKIMAN
Abdul Hamid Mohamad HMR:
Responden (tertuduh di Mahkamah Tinggi) telah dihadapkan ke mahkamah atas tiga pertuduhan, yang setelah dipinda oleh hakim di akhir kes pendakwaan, berbunyi seperti berikut:
Pertuduhan Pertama: Terpinda
Bahawa kamu pada 21hb Disember 1992, lebih kurang jam 10.00 pagi di Bilik Gerakan, Pejabat Daerah Tampin, dalam Negeri Sembilan, sebagai Ahli Dewan Undangan Negeri, kawasan Gemencheh, Tampin telah melakukan perbuatan rasuah dengan menggunakan kedudukan awam kamu untuk faedah kewangan kamu iaitu telah mengambil bahagian dalam satu keputusan oleh Jawatankuasa Tanah Daerah Tampin yang mana kamu mempunyai kepentingan iaitu, memutuskan supaya permohonan daripada Syarikat Teraju Nusantara Sdn. Berhad untuk memiliki tanah kerajaan di Mukim Repah, Daerah Tampin seluas lebih kurang 20.146 hektar secara lesen pendudukan sementara berserta dengan permit dan seluas 4 hektar secara pemberian hakmilik untuk perusahaan kuari dalam fail permohonan PTT 1/2/545 dibawa ke Majlis Mesyuarat Kerajaan Negeri Sembilan dengan syor untuk diluluskan dan oleh itu kamu telah melakukan satu kesalahan yang boleh dihukum di bawah Seksyen 2(1) Ordinan No. 22 (Kuasa-Kuasa Perlu) Dharurat 1970.
Pertuduhan Kedua: Terpinda
Bahawa kamu pada 28hb April 1993, lebih kurang jam 10.00 pagi di Bilik Mesyuarat Majlis Mesyuarat Kerajaan Negeri, dalam Daerah Seremban dalam Negeri, Negeri Sembilan, semasa menjadi seorang anggota Pentadbiran iaitu seorang Ahli Majlis Mesyuarat Kerajaan Negeri, Negeri Sembilan telah melakukan perbuatan rasuah dengan menggunakan kedudukan awam kamu untuk faedah kewangan kamu, iaitu telah mengambil bahagian dalam satu keputusan oleh Majlis Mesyuarat Kerajaan Negeri tersebut yang mana kamu mempunyai kepentingan iaitu, keputusan meluluskan pemberian milikan tanah secara pajakan Negeri bagi tempoh 60 tahun seluas 28.24 hektar dalam fail permohonan No.PTT 1/2/545 bagi tujuan perusahaan kuari kepada Syarikat Teraju Nusantara Sdn. Bhd. di Mukim Repah, Daerah Tampin dan oleh itu kamu telah melakukan satu kesalahan yang boleh dihukum di bawah Seksyen (1) Ordinan No. 22 (Kuasa-Kuasa Perlu) Dharurat 1970.
Pertuduhan Ketiga: Terpinda
Bahawa kamu pada 26hb Januari 1994, lebih kurang jam 10.00 pagi di Bilik Mesyuarat Majlis Mesyuarat Kerajaan Negeri, dalam Daerah Seremban dalam Negeri, Negeri Sembilan, semasa menjadi seorang anggota Pentadbiran iaitu seorang Ahli Majlis Mesyuarat Kerajaan Negeri, Negeri Sembilan telah melakukan perbuatan rasuah dengan menggunakan kedudukan awam kamu untuk faedah kewangan kamu, iaitu kamu telah mengambil bahagian dalam satu keputusan oleh Majlis Mesyuarat Kerajaan Negeri tersebut yang mana kamu mempunyai kepentingan iaitu, keputusan meluluskan permohonan melanjutkan tempoh bayaran premium selama 6 bulan lagi ke atas tanah seluas 28.24 hektar dalam fail permohonan No. PTT 1/2/545 di Mukim Repah, Daerah Tempin, yang diluluskan kepada Syarikat Teraju Nusantara Sdn. Berhad pada 28hb April 1993 dan oleh itu kamu telah melakukan satu kesalahan yang boleh dihukum di bawah Seksyen 2(1) Ordinan No. 22 (Kuasa-Kuasa Perlu) Dharurat 1970.
Responden telah dipanggil membela diri di atas ketiga-tiga pertuduhan itu, tetapi dilepas dan dibebaskan di akhir kes pembelaan.
Pendakwa Raya merayu ke mahkamah ini. Mahkamah ini membenarkan rayuan itu dan menjatuhkan hukuman denda sebanyak RM15,000, jika tidak bayar enam bulan penjara bagi setiap pertuduhan.
Pendakwa Raya merayu terhadap hukuman.
Fakta kes, secara ringkas adalah seperti berikut:
Responden mula menjadi ahli Dewan Undangan Negeri, Negeri Sembilan pada 22 Mei 1982 setelah beliau memenangi pilihanraya kecil dan terus memenangi pihanraya umum untuk Dewan Undangan Negeri dan dilantik menjadi Ahli Majlis Mesyuarat Kerajaan dalam tahun 1986. Beliau terus memenangi pilihanraya-pilihanraya umum selepas itu dan terus menjadi ahli Dewan Undangan Negeri hingga sekarang, tetapi meletakkan jawatan ahli Majlis Mesyuarat Kerajaan apabila dihadapkan ke mahkamah atas pertuduhan-pertuduhan dalam kes ini. Pada tarikh-tarikh matan, responden adalah ahli Dewan Undangan Negeri, Ahli Majlis Mesyuarat Kerajaan dan ahli Jawatankuasa Tanah Daerah Tampin.
Responden berkahwin degan Noraini bt. Abdul Satar pada 26 Jun 1981, dan Noraini adalah isterinya pada tarikh-tarikh matan itu.
Pada 4 November 1991 Syarikat Teraju Nusantara Sdn. Berhad (“Teraju Nusantara”) telah ditubuhkan oleh Abdul Wahab bin Ahmad (“Wahab”), Noraini bt Abdul Satar (“Noraini”) dan Milah bt. Haron (“Milah”). Mereka masing-masing memiliki satu saham bernilai RM1. Ketiga-tiga mereka juga adalah Pengarah Teraju Nusantara. Noraini adalah isteri responden. Milah adalah isteri Ismail bin Ma’arof, seorang pelukis pelan di Pejabat Tanah Daerah Tampin. Wahab adalah seorang guru Penolong Kanan di Sekolah Kebangsaan Gemencheh di mana Noraini, isteri responden, mengajar.
Pada 25 November 1991, tiga minggu selepas penubuhan Teraju Nusantara, permohonan tanah kuari, yang menjadi perkara (“subject matter”) pertuduhan-pertuduhan itu, diterima oleh Pentadbir Tanah Daerah Tampin.
Kertas mesyuarat disediakan pada 15 Disember 1992 dan enam hari kemudian, pada 21 Disember 1992, kertas mesyuarat itu telah dibentang, dipertimbang dan disokong untuk kelulusan Majlis Mesyuarat Kerajaan. Responden hadir dalam mesyuarat itu.
Pada 28 April 1993 Majlis Mesyuarat Kerajaan meluluskan permohonan itu. Responden juga hadir dalam mesyuarat itu.
Pada 26 Januari 1994 Majlis Mesyuarat Kerajaan meluluskan permohonan Teraju Nusantara untuk melanjutkan tempoh bayaran premium ke atas tanah tersebut. Responden juga hadir dalam mesyuarat itu.
Perlu diambil perhatian bahawa ketiga-tiga tarikh yang baru sahaja disebut di atas itu adalah tarikh-tarikh bagi ketiga-tiga pertuduhan itu.
Pada 19 Mei 1994, responden, Noraini (isterinya), Wahab, Milah dan Ismail (suami Milah) dibawa oleh seorang bernama Teoh Song Chuah untuk berjumpa dengan Dato’ Rosie Tan di pejabat Dato’ Rosie Tan di Hotel Pan Pacific, Kuala Lumpur. Teoh Song Chuah adalah “Senior Manager (Treasury) Tan Chong Motors. Mengikutnya, Dato’ Rosie Tan adalah “superior”nya di Tan Chong Motors. Dato’ Rosie Tan juga adalah “financier” Syarikat Henro Bina Sdn. Bhd. (“Henro Bina”).
Tujuan perjumpaan itu adalah untuk berbincang berkenaan penjualan tanah kuari itu oleh Teraju Nusantara kepada Henro Bina. Henro Bina bersetuju membeli saham Teraju Nusantara yang memiliki tanah kuari itu dengan harga RM1.1 juta.
Pada perjumpaan itu Dato’ Rosie Tan membayar RM150,000 kepada responden, RM100,000 kepada Noraini (isteri responden), RM50,000 kepada Wahab dan RM50,000 kepada Milah.
Sebelum pertemuan itu, responden, Wahab, Ismail, Dato’ Rosie Tan dan Teo pergi melawat tanah kuari itu.
Pada 19 Julai 1994, satu perjanjian telah dimeteraikan antara Henro Bina dengan Noraini (isteri responden), Wahab dan Milah di mana Henro Bina membeli kesemua saham-saham ketiga-tiga mereka dalam Teraju Nusantara. Noraini (isteri responden) juga menandatangani perjanjian itu.
Walau pun hakim Mahkamah Tinggi menerima semua fakta-fakta itu, beliau telah melepas dan membebaskan responden atas alasan bahawa ada kemungkinan bahawa responden, pada ketiga-tiga tarikh dalam pertuduhan itu, mempercayai bahawa Noraini (isteri responden), sudah pun melupuskan kepentingannya dalam Teraju Nusantara, sebelum tarikh pertama dalam pertuduhan itu.
Mahkamah ini membenarkan rayuan pendakwa raya dan mensabitkan responden di atas ketiga-tiga pertuduhan itu. Oleh sebab pendakwa raya cuma merayu terhadap hukuman, tidaklah perlu dibincangkan dengan panjang lebar alasan-alasan mengapa mahkamah ini berbuat demikian.
Secara ringkas, mahkamah ini mensabitkan responden atas dua alasan.
Alasan pertama ialah, berdasarkan dapatan fakta yang dibuat oleh hakim Mahkamah Tinggi itu sendiri, keputusannya membebas dan melepaskan responden itu tidak dapat dipertahankan. Ini adalah kerana, daripada fakta-fakta yang didapati oleh Hakim Mahkamah Tinggi itu, yang telah diperturunkan di atas, penglibatan responden sendiri adalah jelas dalam mesyuarat-mesyuarat itu yang beliau sendiri hadir dan dalam penjualan tanah kuari itu. Malah beliau sendiri pun menerima RM150,000 daripada Dato’ Rosie Tan.
Kedua, berdasarkan fakta-fakta itu, Hakim Mahkamah Tinggi itu telah tersalah arah apabila memutuskan bahawa ada kemungkinan bahawa responden percaya isterinya sudah tiada kepentingan lagi dalam Teraju Nusantara pada ketiga-tiga tarikh itu. Ini antara lain, kerana, selepas ketiga-tiga tarikh itu pun, responden bersama-sama Dato’ Rosie Tan dan lain-lain pergi melawat tanah kuari itu. Disamping itu, beliau dan isterinya bersama-sama yang lain juga telah pergi ke pejabat Dato’ Rosie Tan untuk berbincang mengenai penjualan tanah kuari itu. Beliau sendiri menerima RM150,000 dan isterinya menerima RM130,000 (kesemuanya) dan isterinya menandatangani perjanjian menjual sahamnya dalam Teraju Nusantara kepada Henro Bina.
Mengenai hukuman, setiap kesalahan itu membawa hukuman maksima penjara selama 14 tahun dan denda tidak melebihi RM20,000 atau kedua-duanya sekali.
Mahkamah ini tidak menjatuhkan hukuman penjara. Itulah yang menyebabkan pendakwa raya terkilan dan merayu seterusnya.
Sekarang kita akan lihat antara hukuman-hukuman yang pernah dijatuhkan oleh mahkamah-mahkamah di Malaysia bagi kesalahan itu.
Dalam kes Public Prosecutor v. Datuk Tan Cheng Swee & Anor[1978] 1 LNS 150; [1980] 2 MLJ 276 (MP) tertuduh dikenakan hukuman denda RM2,000.
Dalam kes Hj Abdul Ghani Ishak & Anor v. Public Prosecutor[1981] 1 LNS 96; [1981] 2 MLJ 230, tertuduh dihukum penjara selama tujuh bulan.
Dalam kes Nunis v. Public Prosecutor [1982] 2 MLJ 114, tertuduh dihukum penjara selama 24 bulan.
Dalam kes Public Prosecutor v. Dato’ Hj Mohamed Muslim bin Hj Othman[1982] 1 LNS 71; [1983] 1 MLJ 245, tertuduh dihukum penjara satu hari dan denda sebanyak RM2,000.
Dalam kes PP v. Dato’ Seri Anwar Ibrahim (No 3)[1999] 2 CLJ 215(Mahkamah Tinggi) [2000] 2 CLJ 695(Mahkamah Rayuan) dan [2002] 3 CLJ 457(Mahkamah Persekutuan), hukuman penjara selama enam tahun telah dikenakan.
Dalam kes PP v. Datuk Hj Sahar Arpan[1999] 3 CLJ 427Mahkamah Tinggi menjatuhkan hukuman penjara selama dua tahun dan denda sebanyak RM20,000 bagi setiap pertuduhan.
Apa yang jelas ialah tidak ada, malah tidak boleh ada, satu “hukuman standard” bagi kesalahan-kesalahan di bawah seksyen itu. Setiap kes perlu ditimbang mengikut fakta-fakta dan keadaannya masing-masing.
Sebagai misalan kita tidak boleh bandingkan kes ini dengan kes Dato’ Seri Anwar bin Ibrahim. Fakta kesalahan amat berbeza. Keadaan disekeliling kes-kes itu sangat berbeza.
Dalam kes Dato’ Seri Anwar bin Ibrahim, perbuatan yang menjadi kesalahan itu ialah, bagi pertuduhan pertama, mengarahkan Pengawal Cawangan Khas Polis DiRaja Malaysia memperolehi pengakuan bertulis daripada Azizan bin Abu Bakar bagi menafikan salah laku seks dan liwat yang dilakukan olehnya dengan tujuan melindungi dirinya daripada sebarang tindakan atau prosiding jenayah.
Bagi pertuduhan kedua, mengarahkan pegawai yang sama menggesa Azizan bin Abu Bakar supaya memberi kenyataan umum bertulis mengenai perkara yang sama untuk tujuan yang sama seperti dalam pertuduhan pertama.
Bagi pertuduhan ketiga mengarahkan pegawai yang sama supaya memperolehi pengakuan bertulis daripada Ummi Hafilda bte. Ali bagi menafikan perkara yang sama untuk tujuan yang sama seperti dalam pertuduhan pertama.
Perbuatan-perbuatan itu adalah penyalahgunaan kedudukan untuk menggagalkan pentadbiran keadilan.
Dalam kes ini, perbuatan salahnya, pada hakikatnya, hanyalah kerana beliau tidak keluar dari bilik-bilik mesyuarat itu semasa permohonan berkenaan dibentang, dipertimbang dan diluluskan. Itu sahaja.
Juga kita semua maklum bahawa kes Dato’ Seri Anwar bin Ibrahim telah menggugat ketenteraman awam. Sebaliknya, kes ini tidak memberi apa-apa kesan kepada ketenteraman awam.
Jadi, kedua-dua kes itu bukanlah perbandingan yang sesuai.
Kami mengambil kira kepentingan awam walau pun kami tidak fikir adalah perlu menulis dengan panjang lebar mengenainya, kerana terlalu banyak sudah ditulis dan berapa banyak lagi ditulis pun mengenai prinsipnya, perbezaan pendapat tetap akan berlaku apabila menimbangkan hukuman sebenar yang akan dijatuhkan.
Kami tidak fikir berdasarkan fakta dan keadaan dalam kes ini, hukuman penjara perlu dijatuhkan. Pertama, kesalahan ini tidak patut disamakan dengan kesalahan-kesalahan jenayah merompak, pecah amanah, merogol dan sebagainya dan orang yang melakukan kesalahan ini tidak patut diklasifikasikan bersama-sama penjenayah-penjenayah itu. Memohon tanah kuari itu tidak salah. Bahawa permohonan itu diluluskan pun tidak salah. (Kalau itu salah, Majlis Mesyuarat Kerajaanlah yang patut dipersalahkan). Yang salahnya, walaupun bunyinya hebat iaitu “melakukan perbuatan rasuah”, sebenarnya ialah kerana beliau berada dalam bilik mesyuarat itu semasa permohonan itu dipertimbangkan dan diluluskan. Permohonan itu boleh diluluskan tanpa kehadirannya dan dalam keadaan itu, kelulusan diperolehi juga dan beliau tidak bersalah.
Kami setuju dan kami tegaskan bahawa melakukan perbuatan rasuah dan menyalahguna kuasa untuk kepentingan diri sendiri, apatah lagi jika ia merugikan bangsa dan negara adalah suatu perbuatan yang serius, tetapi hakikatnya, dalam kes ini, tidak lebih daripada responden hadir dalam mesyuarat-mesyuarat itu semasa permohonan itu dipertimbangkan, disokong atau diluluskan. Memang responden mendapat faedah kewangan. Tetapi hukuman yang diterima oleh responden sudah lebih daripada faedah itu. Kerjaya politiknya hancur. Jawatan-jawatan yang dipegangnya hilang dan tidak mungkin diperolehi semula. Nama baiknya tecemar. Dari segi kewangan pun, beliau telah dan akan terus rugi.
Dalam keadaan ini, pada pandangan kami hukuman penjara tidaklah perlu dan hukuman denda yang dikenakan itu pun sudah memadai.
Kita lihat juga dalam beberapa kes hukuman penjara satu hari dikenakan. Kami berpendapat ini juga tidak bermakna. Hukuman penjar