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]

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.

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
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.

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

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)
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.

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.

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.

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.

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
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.

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)

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
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
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.

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.

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
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.

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.

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.

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)
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
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.

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
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.

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 penjara selama satu hari itu biasanya dikenakan oleh mahkamah dalam kes-kes di mana hukuman penjara itu mesti dikenakan tetapi mahkamah berpendapat kes itu bukanlah satu kes di mana hukuman penjara sesuai dikenakan. Maka untuk mencukupkan syarat, mahkamah mengenakan hukuman penjara satu hari dan denda.
Keadaan dalam kes ini bukan sedemikian. Hukuman penjara bukanlah satu hukuman mandatori di bawah seksyen itu dan mahkamah berpendapat bahawa hukuman penjara sehari tidak memberi apa-apa makna kerana, apabila mahkamah tamat bersidang, hanya beberapa minit selepas menjatuhkan hukuman itu, tertuduh telah disifatkan sebagai telah pun menjalani hukuman itu.
Atas alasan-alasan ini kami menjatuhkan hukuman denda itu dan amaun RM15,000 itu adalah tiga per empat daripada hukuman denda maksima yang diperuntukkan. Kami berpendapat ianya adalah tepat betul dan munasabah.

PENDAFTAR PERTUBUHAN MALAYSIAv. PV DAS; DATUK M KAYVEAS (INTERVENER)
COURT OF APPEAL, KUALA LUMPUR
ABDUL HAMID MOHAMAD, JCA; ABDUL KADIR SULAIMAN, JCA; RICHARD MALANJUM, JCA
CIVIL APPEAL NO: N-01-98-1999
19 JUNE 2003
[2003] 3 CLJ 404
UNINCORPORATED ASSOCIATIONS: Societies – Political party – Appeal by Registrar of Societies – Trial judge allowed plaintiff’s application declaring unlawful registrar’s recognition of party leader and supporters – Whether decisions of political party amenable to judicial review – Whether s. 18C Societies Act 1966ousts judicial review

This was an appeal by the Registrar of Societies against the decision of the learned judge of the High Court. The learned judge had allowed the plaintiff’s application, inter alia, to invalidate the registrar’s recognition of the appointment of one Datuk M Kayveas and his supporters as president and office-bearers respectively of a political party (‘PPP’).
The main issue was whether the decisions of PPP were subject to judicial review in view of s. 18C of the Societies Act 1966.
Held:
Per Abdul Hamid Mohamad JCA
[1] Effect must be given to the intention of Parliament in legislating s. 18C of the Societies Act 1966. In s. 18C, Parliament did not stop at the words “shall be final and conclusive and… shall not be challenged, appealed against, reviewed, quashed or called in question in any court”. It went further to provide “… on any ground, and no court shall have jurisdiction to entertain or determine any suit, application, question or proceeding on any ground regarding the validity of such decision”. These words clearly show that Parliament intended to exclude the jurisdiction of the courts. Also, the dispute regarding the validity of the Extra Ordinary Delegates Conference, the election of Datuk M Kayveas and his supporters as President and Office Bearers respectively, the validity of the voting done and the resolutions passed etc, were decisions of a political party on any matter relating to the affairs of the party within s. 18C.
[Bahasa Malaysia Translation Of Headnotes
Ini adalah rayuan Pendaftar Pertubuhan Malaysia terhadap keputusan hakim bijaksana Mahkamah Tinggi. Hakim bijaksana telah membenarkan permohonan plaintif mentaksahkan pengiktirafan Pendaftar terhadap perlantikan seorang Datuk M Kayveas dan penyokong-penyokong beliau sebagai presiden dan pegawai-pegawai jawatan masing-masing sebuah parti politik PPP.
Isu utama adalah sama ada keputusan yang dibuat oleh PPP boleh dikaji semula oleh mahkamah memandangkan s. 18C Akta Pertubuhan 1966.
Diputuskan:
Oleh Abdul Hamid Mohamad JCA
[1] Kepentingan mesti diberikan kepada tujuan Parlimen memperbuat s. 18C Akta Pertubuhan 1966. Parlimen tidak berhenti dengan perkataan-perkataan bahawa keputusan sebuah parti politik itu ‘akhir dan muktamad dan tidak boleh dicabar, dirayukan, dikaji semula, dibatalkan atau dipersoalkan dalam mana-mana mahkamah’. Malah Parlimen meneruskan dengan perkataan-perkataan ‘atas apa-apa alasan dan mahkamah tidak mempunyai bidang kuasa untuk melayan atau menentukan mana-mana guaman, permohonan, persoalan atau prosiding atas apa-apa alasan berhubung kesahihan keputusan itu’. Perkataan-perkataan tersebut jelas menunjukkan bahawa Parlimen bertujuan untuk menyingkirkan bidang kuasa mahkamah. Juga, pertikaian dalam kes semasa berkenaan keesahan Mesyuarat Extraordinary Delegates, perlantikan Datuk M Kayveas dan penyokong-penyokongnya sebagai Presiden dan pegawai-pegawai jawatan masing-masing, keesahan pengundian dan resolusi-resolusi yang diluluskan etc, merupakan keputusan-keputusan sebuah parti politik berhubung urusan parti itu di dalam lingkungan s. 18C.
Rayuan dibenarkan.]
Reported by Usha Thiagarajah

Case(s) referred to:
Abdul Aziz Jamal Mohammad & Ors v. Maniam KVS [1998] 2 CLJ Supp 1HC (refd)
Anisminic Ltd v. Foreign Compensation Commission [1969] 2 AC 147 (refd)
Ismail Mohd & Satu Lagi lwn. Zainal Abidin Mohamad Hashim & Yang Lain [1994] 2 CLJ 201HC (refd)
Krishnadas Achutan Nair & Ors v. Maniyam Samykano [1997] 1 CLJ 636FC (refd)
PP v. Ottavio Quattrocchi [2003] 2 CLJ 613CA (refd)
PV Das v. Maniam KVS Kayveas [1997] 5 CLJ 529HC (refd)
SI Rajah & Anor v. Dato’ Mak Hon Kam & Ors [1994] 1 CLJ 215HC (refd)
Tengku Razaleigh Tengku Mohd Hamzah v. Election Judge for Election Petition No: 33-6-1995 & Ors [1996] 1 CLJ 366HC (refd)
Wee Choo Keong v. Lee Chong Meng [1998] 1 CLJ 705FC (refd)
Yong Teck Lee v. Harris Mohd Salleh & Anor [2002] 3 CLJ 422CA (refd)

Counsel:
For the appellant – Amarjeet Singh (Mat Ghani Abdullah); AG’s Chambers
For the respondent – Maniam K Marappan (Sila Dass & Vijaya); M/s Maniam K Marappan & Co
For the intervener – Sri Dev Nair (PC Low); M/s Blanche & Kayveas

JUDGMENT
Abdul Hamid Mohamad JCA:
This and the other appeal (Civil Appeal No. N-02-661-96) were fixed for hearing before us on 27 January 2003. When Civil Appeal No. N-02-661-96 was called the court was shown a notice of discontinuance filed by the appellant in that appeal (PV Das, who is the respondent in the present appeal). However, PV Das, while admitting that he signed and filed the notice, disputed it but his grounds were not clear to us. We struck out that appeal and had given a separate grounds of judgment.
When this appeal was called, Mr. Amarjeet Singh, the Federal Counsel appearing for the appellant (Registrar of Societies) informed the court that the respondent had given a notice dated 23 January 2003 informing the court that he had discharged his solicitors and wanted to appear in person.
We were then shown a “Notis Perlantikan Peguamcara” dated 27 January 2003 that Tetuan Rugber Singh & Partners had been appointed to act as counsel for the respondent in the appeal. But it was Mr. Maniam K. Marappan & Company who appeared as counsel for the respondent even though eventually it was Mr. KS Dass who argued the case for the respondent.
We made no issue out of that as we were of the view that the respondent could change his mind whether to represent himself or to appoint any advocate and solicitor to represent him.
Then, Mr. Dev Nair, learned counsel for the intervener (Datuk M. Kayveas) showed us a letter addressed to the Registrar of the Court of Appeal, signed by the respondent (PV Das), para. 2 of which reads:
2. This is to inform you that I have no intention of contesting the abovesaid Appeal and I have no objection in the aforesaid Appeal being allowed provided with no costs against me. I also agree that the deposit to be paid back to the respective Appellant and Intervener.
But, that was only in respect of the intervener. The appeal by the appellant (Registrar of Societies) remains. We decided to hear the appeal. At the conclusion of the hearing, on 29 January 2003, we allowed the appeal with costs.
Considering the reason for our allowing the appeal, we do not think it is necessary to narrate in detail the facts and the chronology of the proceedings which is rather lengthy and complicated.
We shall however, state the necessary facts to enable our judgment to be understood. There are other related suits. But, we shall confine ourselves to the suit which leads to this appeal.
In this suit PV Das suing on behalf of himself and also purportedly on behalf of the People’s Progressive Party (PPP), sues the Registrar of Societies, praying for declarations:
(1) that the Defendant’s recognition of Kayveas as President of PPP and those who support him as office-bearers, is unlawful and ultra vires the Societies Act and the PPP’s Constitution;
(2) that the Plaintiff and the office-bearers elected at the Triannual Delegates Conference held on 13.8.95 are the lawful President and office-bearers of PPP;
(3) that all approvals given by the Defendant to Kayveas and his supporters regarding the change of address of the Headquarters of PPP, the formation of branches, the change of logo, the change of name of the Party in Bahasa Malaysia and the amendment of the Party’s Constitution are all illegal, ultra vires the Societies Act and the PPP’s constitution; and
(4) the Headquarters of the registered office be at No. 15, 1st Floor, Persiaran Syed Putra, 50460 Kuala Lumpur,
including damages and costs.
The learned judge allowed prayer (1) ie, that the defendants’ recognition of Datuk M. Kayveas as President of the PPP and his supporters as office-bearers is unlawful and ultra vires the Societies Act 1966 and the PPP’s Constitution.
The learned judge allowed this prayer on the ground that the default order of the registrar dated 31 May 1994, relied on by the appellant to give recognition to Datuk M. Kayveas and his supporters had been set aside by the judge in chambers on 28 February 1996.
The learned judge also allowed prayer (3) ie, approval given by the registrar to Datuk M. Kayveas regarding the change of address of the Headquarters of PPP, formation of branches, change of logo etc. was illegal, ultra vires the Act and the party’s Constitution. This is on the ground the Extraordinary Delegates Conference held on 10 October 1993 which passed resolutions for those changes was null and void because non-members were present and voting.
The learned judge also ordered that damages be assessed and granted costs to the respondent.
The appellant appealed to this court by a notice of appeal dated 11 October 1999. On 14 October 1999 this court allowed Datuk M. Kayveas’s application to intervene in the appeal and stayed the order of the High Court dated 18 September 1999, the subject matter of this appeal.
Section 18C Societies Act 1966
That section was inserted by Act A743 and came into force on 12 January 1990. It provides:
18C. The decision of a political party or any person authorized by it or by its constitution or rules or regulations made thereunder on the interpretation of its constitution, rules or regulations or on any matter relating to the affairs of the party shall be final and conclusive and such decision shall not be challenged, appealed against, reviewed, quashed or called in question in any court on any ground, and no court shall have jurisdiction to entertain or determine any suit, application, question or proceeding on any ground regarding the validity of such decision.
The first thing to be observed is that this section applies only to political parties. Secondly the words used are more exhaustive than those used in other similar provisions. For examples, in s. 33(4) of Election Offences Act 1954the words “shall be final” are used. In s. 41 of the same Actthe words “shall not be questioned” are used. In s.37(6) of the Extradition Act 1992the words “shall be final and conclusive” are used. However, in s. 33B of the Industrial Relations Act 1967the words “shall be final and conclusive and shall not be challenged, appeal against, reviewed, quashed or called in question in any court” are used. This section was inserted by Act A484 and came into force on 30 May 1980.
The view taken by the courts in this country on the meaning of those phrases vary from statute to statute. In election petition cases, even though only words “shall be final” are used, the courts in this country have consistently held that a decision of an Election Judge in an election petition is not appealable. For the latest decision of this court see Yong Teck Lee v. Harris Mohd Salleh & Anor[2002] 3 CLJ 422. The application for leave to appeal had been refused by the Federal Court in O.M. No. 08-46-2002 (S). The courts have also consistently held that the decisions of an election judge is not subject to judicial review, but, in all fairness, it must be pointed out, on the ground that an election judge is not an inferior tribunal to the High Court – see Wee Choo Keong v. Lee Chong Meng[1998] 1 CLJ 705(FC), Tengku Razaleigh Tengku Mohd Hamzah v. Election Judge for Election Petition No: 33-6-1995 & Ors[1996] 1 CLJ 366and also Yong Teck Lee (supra).
Regarding the provision of s. 37(6) of the Extradition Act 1992where words “shall be final and conclusive” are used, this court recently, PP v. Ottavio Quattrocchi[2003] 2 CLJ 613had held that the decision of the High Court was not appealable to this court.
However, it is trite law that, in spite of the quite exhaustive words used in s. 33B of the Industrial Relations Act 1967, awards of the Industrial Court are subject to an order of certiorari. Admittedly, it is a very strong argument to say that s. 18C of the Societies Act 1966should be similarly interpreted.
However, let us look at the attitude of the courts in the interpretation of s. 18C. Unfortunately, as far as we can ascertain, there has not been a decision of a court higher than the High Court on that section.
In SI Rajah & Anor v. Dato’ Mak Hon Kam & Ors[1994] 1 CLJ 215, a case involving the same political party and in fact related to this case Lim Beng Choon J had this to say:
Finally I should also mention that an amendment vide Act 743/90 was made to the Societies Act 1966 by introducing Pt IA entitled ‘Provisions applicable to political parties only’ and the amendment came into force on 12 January 1990. The amendment has the effect of confining disputes arising from the election of disqualified persons as office bearers of a political society within the said party itself. In short, it is for the political party itself to settle such disputes. Although the amendment was made after the institution of this action and is not applicable to this action as it has not been made retrospectively, nonetheless the amendment acknowledges the common sense rule adopted by the court even before the amendment was made, ie, that the remedy of a politician involved in a dispute with his fellow member of his party lies not with the court but with the Registrar of Societies or the electorate of his party.
In Ismail Mohd & Satu Lagi lwn. Zainal Abidin Mohamad Hashim & Yang Lain[1994] 2 CLJ 201, the learned counsel for the defendant chose to argue his case on the basis that the court had the jurisdiction even in respect of matters enumerated in s. 18Cif the decision was made without jurisdiction or was a nullity. He conceded that the principles laid down in Anisminic Ltd. v. Foreign Compensation Commission [1969] 2 AC 147 (HL) which had been adopted by the courts in this country was applicable in interpreting s. 18C.
Consequently, this is what I said in that case:
Memandangkan bahawa peguam defendan-defendan sendiri memilih untuk menghujahkan kesnya atas asas bahawa prinsip yang dinyatakan dalam kes Anisminic itu terpakai dalam tafsiran peruntukan s. 18C itu, maka tidaklah perlu bagi saya, dalam memutuskan kes ini, menimbangkan dan memutuskan sama ada s. 18C itu mengeluarkan bidangkuasa Mahkamah sepenuhnya atau tidak. Walau bagaimanapun soalan itu nampaknya masih terbuka, memandangkan, terutama sekali, bahawa perkataan-perkataan yang digunakan oleh Parlimen dalam akta-akta berkenaan yang ditafsirkan dalam kes-kes yang saya sebut di atas itu adalah berlainan daripada perkataan-perkataan yang digunakan dalam s. 18C itu. Saya tidak patut berkata lebih banyak berkenaan soalan itu dalam kes ini.
Soal yang perlu diputuskan ialah sama ada, berdasarkan fakta-fakta kes ini, peruntukan s. 18C itu, mengambil kira prinsip yang disebut dalam kes Anisminic itu, mengeluarkan guaman ini daripada bidangkuasa Mahkamah ini.
After considering the facts of the case I concluded:
Kesimpulannya saya berpuashati bahawa BPUPP diberi kuasa oleh UMNO (parti) membuat keputusan yang dicabar itu; bahawa BPUPP telah membuat keputusan itu di dalam bidangkuasanya dan keputusan itu bukanlah satu “nullity”; bahawa keputusan itu adalah berhubung dengan hal-ehwal parti. Oleh itu s. 18C itu terpakai kepada kes ini. Justru itu keputusan itu tidak boleh “dicabar,… dikaji semula, dibatalkan atau dipersoalkan di mana-mana mahkamah… dan tiada mahkamah mempunyai bidangkuasa untuk melayani atau memutuskan apa-apa guaman, permohonan, soal atau prosiding… berkenaan dengan keesahan itu.
However, I did make this observation on s. 18C:
Sebelum membincang peruntukan ini eloklah disebut bahawa mengikut Perkara 121, Perlembagaan Persekutuan, Mahkamah Tinggi mempunyai bidangkuasa seperti mana yang diberi oleh atau di bawah undang-undang persekutuan. Akta Pertubuhan 1966 adalah satu undang-undang persekutuan. Akta itu boleh memberi, menambah, mengurangkan atau meniadakan bidangkuasa mahkamah dalam sesuatu perkara.
In PV Das v. Maniam KVS Kayveas[1997] 5 CLJ 529, another related case, the same learned judge who decided the present case had this to say on s. 18C:
It is observed that the Court has no jurisdiction to entertain an application which questions the decision of a political party or its office-bearers relating to the affairs of the party. The facts disclosed that the Plaintiff was unanimously elected as President of PPP at the Triennial Delegates Conference on 13.8.95 at Segamat attended by 215 representatives from 95 out of 110 Branches of the party. The Defendant’s Presidency was approved and endorsed at the Extraordinary Delegates Conference on 10.10.93 attended by 310 members and 98 delegates from 84 Branches of the Party. It was manifest that both Presidents enjoyed popular votes. It is my humble view that under the circumstance the election of the Plaintiff as President of PPP and the approval and endorsement of the Defendant’s Presidency of the PPP are the decisions of a political party within the meaning of section 18C of the Act and I hold further that the business of electing the President or the approval and endorsement of the President are “matters relating to the affairs of the party”. Therefore I hold that such decisions on such matters are final and conclusive decisions and the Court has no jurisdiction to question the validity of such decisions.
In Abdul Aziz Jamal Mohammad & Ors v. Maniam KVS[1998] 2 CLJ Supp 1, also a related case, Suriyadi J said, having considered, inter alia, the judgment of Mohd. Noor Abdullah J in Civil Suit No. 22-72-96 referred to earlier and the judgment of Raus J in High Court Muar, Civil Suit No. 22-21-97, concluded:
With all these convincing arguments either posed by the defendants or interpreted by the court, and after a perusal of the relevant provisions, I had to conclude that that provision was very clear and unambiguous and brooked no other interpretation. I was also unable to acquiesce to the suggestion of the plaintiffs that invalid decisions do not come within the purview of s. 18C whilst good ones were.
In his judgment, the learned judge also quoted Raus J’s unreported judgment in Civil Suit No. 22-21-97:
Seksyen 18C Akta Pertubuhan 1966 dengan jelas memperuntukkan bahawa keputusan yang dibuat oleh sesuatu parti politik itu adalah muktamad, dan keputusan itu tidak boleh dicabar, dirayukan, dikaji semula, dibatalkan atau dipersoalkan dalam mana-mana mahkamah atau atas apa-apa alasan dan mahkamah tidak mempunyai bidang kuasa untuk melayan atau apa-apa alasan berhubung kesahihan keputusan itu.
It is also important to note that Suriyadi J, in his judgment placed on record:
As we went along with the hearing, the defendants revealed that one of the decision of Mohd. Noor Abdullah J had been dealt with by the Court of Appeal, a quorum which comprised Siti Norma Yaakob, Gopal Sri Ram and Ahmad Fairuz JJCA. In that decision, the Court of Appeal also held the same view as that of the High Court judge. It was unfortunate that the defendants could not supply me with the relevant written decision.
So, at least five High Court judges had expressed the same view on s. 18C and there is no dissenting view.
We are also of the same view that effect must be given to the intention of Parliament in legislating s. 18C. We would, in this respect, repeat the words of Gopal Sri Ram JCA in Krishnadas Achutan Nair & Ors v. Maniyam Samykano[1997] 1 CLJ 636, also quoted by Suriyadi J in Abdul Aziz bin Jamal Mohamad (supra) :
The function of a court when construing an Act of Parliament is to interpret the statute in order to ascertain legislative intent primarily by reference to the words appearing in the particular enactment. Prima facie, every word appearing in an Act must bear some meaning. For Parliament does not legislate in vain by the use of meaningless words and phrases.
To the argument that s. 18C should be given similar interpretation as s. 33B of the Industrial Relations Act 1967we would like to point out that prior to 30 May 1980, there were no provisions similar to ss. 33Aand 33B. With the “development” of administrative law taking place in this country during that period, Parliament thought it fit to insert ss. 33Aand 33B in the Act. There is no doubt that the intention was to curtail if not to prevent the courts in the exercise of its power of judicial review in such cases. But, the current was too strong to be stopped, or even slowed down. That provision became a dead letter. The courts continued and even expanded the grounds for their interference. Whether we like it or not, that is now the law and we accept it.
Ten years later, Parliament found it necessary to legislate s. 18C. Having learnt from the experience regarding the ineffectiveness of the wording used in s. 33C, Parliament had come up with a new formula. It did not stop at the words “shall be final and conclusive and… shall not be challenged, appealed against, reviewed, quashed or called in question in any court.” It went further to provide “… on any ground, and no court shall have jurisdiction to entertain or determine any suit, application, question or proceeding on any ground regarding the validity of such decision.”
Are these words still not clear or insufficient to say what the legislature wants to say? If these words are still ambiguous or insufficient to show the intention of Parliament, we do not know what else can be said to achieve its intention.
We shall now consider the provision of s. 18C in the light of this case. The suit is against the Registrar of Societies. The first prayer concerns the act of the registrar in recognizing Datuk M. Kayveas as President and his supporters as office-bearers of the party. The second prayer seeks a declaration by the court that the plaintiff and his supporters are the President and office- bearers of the party, respectively. The third prayer seeks a declaration that the approval by the registrar of the change of address etc. are void. The fourth prayer is for a declaration regarding the address of the headquarters of the party. This is followed by prayers for damages and costs. All these arise from the dispute regarding the validity of the Extra Ordinary Delegates Conference, the election of Datuk M. Kayveas and his supporters as President and office-bearers respectively, the validity of the voting done and the resolutions passed and also who are members and who are not. These in our views are “decision(s) of a political party on any matter relating to the affairs of the party…”.
It may be argued that, at least in respect of the first and the third prayers, what are being challenged are the acts of the registrar and not the decisions of the party. But, to take that view would mean that whereas a decision of a political partner cannot be challenged in court but, when recognition is given to the decision by the registrar, it may be challenged in court, and all the issues may be reopened for decision by the court. That would defeat the whole purpose of s. 18C.
In the circumstances we are of the view that the suit is a non-starter and the appeal should be allowed on this ground alone. We do not think it is necessary for us to decide on other grounds. We also ordered the respondent to pay costs of the appellant in this appeal and in the court below.
Indeed, on a hindsight, in view of the consent judgment entered in respect of the intervener, we do not think we could have come to a different conclusion. By the consent judgment the respondent, in effect, admits as valid the very same things he still disputes, as against the Registrar of Societies. Certainly, that is not tenable.

COURT OF APPEAL, KUALA LUMPUR
ABDUL HAMID MOHAMAD, JCA; ARIFFIN ZAKARIA, JCA; MOHD GHAZALI YUSOFF, JCA
CIVIL APPEAL NO: W-02-387-02
[2003] 3 CLJ 1
ARBITRATION: Arbitrator – Interlocutory decision by Arbitrator – Whether an award – Whether only mere ruling – Whether not within ambit of s. 23 of Arbitration Act- Whether not subject to review by court – Arbitration Act 1952, ss. 23(1), 24(1) & (2)- Rules of High Court 1980, O. 69 r. 2(1)

The arbitrator in this case had decided, in the course of an arbitration proceeding, to exclude certain documents from the evidence for reason that the documents were caught by the “without prejudice” rule. Dissatisfied with the decision, the respondent applied to the High Court for, and obtained an order that the ‘award’ be remitted to the arbitrator for reconsideration pursuant to s. 23(1) of the Arbitration Act 1952(‘the Act’). In this appeal against the said order of the High Court, a questioninter alia arose as to whether the said decision of the arbitrator was in law an ‘award’, making it perfectly proper for the High Court to have invoked the said s. 23(1), or a mere interlocutory ‘ruling’ over which the court had no power to supervise or review by way of an application such as made to the High Court by the respondent herein.
Held:
Per Abdul Hamid Mohamad JCA
[1] Section 23(1) of the Act envisages the consideration by the court of a matter dealt with in an award. It follows that, with the exception of an application to remove an arbitrator pursuant to s. 24 of the Act, the court has no power to supervise arbitration or review interlocutory decisions of an arbitrator or order that the arbitrator should reconsider a pre-award ruling.
[2]The decision made by the arbitrator is not an award or interim award. It is merely a ruling on the admissibility of documents. Clearly, therefore, the matter being referred to court herein is not the kind of “matter” envisaged by s. 23(1) of the Act.
[3]Even in a normal trial in courts of law, such a ruling as made by the arbitrator is not appealable. Further, to allow every such ruling to be remitted back to the arbitrator under s. 23(1) of the Act, or be challenged in court, would defeat the main purpose of arbitration and borders on an abuse of the process of court. In the circumstances, the respondent ought to have waited until the end of the arbitration proceeding and when the award is handed down, challenge the award and hence the ruling.
[Bahasa Malaysia Translation Of Headnotes
Penimbangtara dalam kes ini, semasa suatu prosiding timbangtara, telah memutuskan untuk menolak beberapa dokumen sebagai keterangan atas alasan bahawa kaedah “tanpa prejudis” terpakai kepada dokumen-dokumen tersebut. Merasa tidak puas hati dengan keputusan, responden memohon kepada Mahkamah Tinggi dan memperoleh perintah supaya ‘award’ tersebut dikembalikan kepada penimbangtara untuk pertimbangan semula di bawah s. 23(1) Akta Timbangtara 1952 (‘Akta’). Dalam rayuan semasa terhadap perintah Mahkamah Tinggi tersebut, persoalan antara lain telah berbangkit berhubung sama ada keputusan yang dibuat oleh penimbangtara merupakan suatu ‘award’ di sisi undang-undang yang bererti ianya terbuka kepada Mahkamah Tinggi untuk menggunapakai s. 23(1), atau hanya sekadar suatu ‘keputusan’ interlokutori terhadap mana mahkamah tiada kuasa untuk menyelia atau menyemak melalui permohonan seperti yang dibuat oleh responden kepada Mahkamah Tinggi di sini.
Diputuskan:
Oleh Abdul Hamid Mohamad HMR
[1] Seksyen 23(1) Akta membayangkan pertimbangan oleh mahkamah akan halperkara yang disentuh dalam sesuatu award. Ianya mengikut bahawa, terkecuali kepada permohonan untuk menolak penimbangtara di bawah s. 24 Akta, mahkamah tidak mempunyai kuasa untuk menyelia mana-mana timbangtara atau menyemak keputusan-keputusan interlokutori penimbangtara ataupun memerintahkan supaya penimbangtara menimbang semula keputusan pra-awardnya.
[2]Keputusan yang dibuat oleh penimbangtara bukan merupakan suatu award atau award sementara. Ianya hanyalah suatu ‘ruling’ berkaitan kebolehterimaan dokumen. Jelas bahawa perkara yang dirujuk ke mahkamah di sini bukan merupakan “perkara” yang dibayangkan oleh s. 23(1) Akta.
[3]Keputusan seperti yang dibuat oleh penimbangtara tidak boleh dirayu, jikapun ia berbangkit dalam perbicaraan biasa di mahkamah-mahkamah undang-undang. Selain itu, membenarkan setiap keputusan sebegini dikembalikan kepada penimbangtara di bawah s. 23(1) Akta, ataupun dicabar di mahkamah, akan mensia-siakan tujuan sebenar timbangtara dan hampir kepada menyalahguna proses mahkamah. Dalam halkeadaan yang wujud, responden sepatutnya menunggu sehingga akhir prosiding timbangtara dan bilamana award diberikan, mencabar award dan seterusnya ‘ruling’ berkenaan.
Rayuan dibenarkan; timbangtara diteruskan berasaskan ‘ruling’ penimbangtara]
Reported by WA Sharif

Case(s) referred to:
AC Ho Sdn Bhd v. Ng Kee Seng [1998] 2 CLJ 645CA (refd)
Chiam Tan Tze & Anor v. The Sarawak Land Consolidation and Rehabilitation Authority And Another Case [1994] 3 CLJ 605 (refd)
Exormisis Shipping SA v. Oonsoo, The Democratic Peoples Republic of Korea and the Korean Transportation Corporation [1975] 1 LLR 432 (foll)
Fletamentos Maritimos SA v. Effjohn International BV (No 2) [1997] 2 LLR 302 (foll)
Future Heritage Sdn Bhd v. Intelek Timur Sdn Bhd [2003] 1 CLJ 103CA (refd)
Hartela Contractors Ltd v. Hartecon JV Sdn Bhd & Anor [1999] 2 CLJ 788CA (refd)
Jeuro Development Sdn Bhd v. Teo Teck Huat (M) Sdn Bhd [1998] 3 CLJ Supp 366HC (refd)
King & Arthur v. Thomas McKenna Ltd & Anor [1991] 2 QB 480 (foll)
MCIS Insurance Bhd v. Associated Cover Sdn Bhd [2001] 1 LNS 322; [2001] 2 MLJ 561 HC (refd)
Ong Guan Teck & Ors v. Hijjas Kasturi [1982] CLJ 31; [1982] CLJ (Rep) 616HC (refd)
Syarikat Pemborong Pertanian & Perumahan v. Federal Land Development Authority [1969] 1 LNS 172; [1971] 2 MLJ 210 (refd)
Three Valleys Water Committee v. Binnie & Partners CA Firm [1990] 52 BLR 42 (foll)

Legislation referred to:
Arbitration Act 1950 [UK], s. 22(1)
Counsel:
For the plaintiff – Dominic J Puthucheary (Firoz Hussein & Cheng Mai); M/s Puthucheary Firoz Asmet & Mai
For the respondent – Tommy Thomas (Alan A Gomez); M/s Tommy Thomas

JUDGMENT
Abdul Hamid Mohamad JCA:
The appellant and the respondent entered into an agreement dated 17 May 1996. Under the agreement, the appellant lent the respondent moneys to participate in the equity of a joint venture company established by the parties. The respondent defaulted under the agreement by failing to make payment as stipulated by the terms of the agreement.
Subsequently, Datuk George Seah was appointed by both parties to arbitrate in the dispute between the parties. During the course of the arbitration hearing, the respondent sought to admit, inter alia, evidence which comprised of correspondence between the parties. The appellant objected to the admissibility of the said documents on the basis that they fell within the “without prejudice” rule.
After hearing arguments of learned counsel for the parties, the learned arbitrator ruled, on 24 September 2001, that the documents in question fell within the “without prejudice” rule and were therefore inadmissible.
The respondent applied to the High Court for the following orders:
1. An Order that the award (“the said award”) handed down by the Sole Arbitrator, Datuk George Seah (“the Arbitrator”) on 24th September 2001 be set aside under Section 24(2) of the Arbitration Act, 1952(“the Act”);
2. In the alternative, an Order that the said award be remitted to the Arbitrator for his reconsideration pursuant to Section 23(1) of the Act;
3. In the further alternative, an Order under Section 24(1) of the Act that the Arbitrator, having misconducted himself in handing down the said Award, be removed;
4. Further or other Directions whether under the Act or otherwise; and
5. #9; Costs.
By an order dated 30 April 2002, the High Court ordered the decision to be remitted to the arbitrator for reconsideration pursuant to s. 23(1) of the Act.
The appellant appealed to this court.
The first question to be decided is whether the decision of the arbitrator dated 24 September 2001 whereby he ruled that the documents in question were inadmissible because they fell within the “without prejudice” rule is an “award”.
First, it must be stated that the objection to the admissibility of the documents in question was raised “during the submissions on the preliminary issue”. It was at that stage, after hearing submission of learned counsel for both parties (by way of written submissions), that the decision to exclude the documents was made.
Section 23(1) of the Act provides:
23. Power to remit award
(1) In all cases of reference to arbitration, the High Court may from time to time remit the matters referred, or any of them, to the consideration of the arbitrator or the umpire.
Section 24(1) and (2) provides:
24. Removal of arbitrator and setting aside of award
(1) Where an arbitrator or umpire has misconducted himself or the proceedings, the High Court may remove him.
(2) Where an arbitrator or umpire has misconducted himself or the proceedings, or an arbitration or award has been improperly procured, the High Court may set the award aside.
The word “award” is not defined in the Act. The Act however does talk about “interim award” (s. 15) which is also not defined.
Reading s. 23 there appears to be some ambiguity whether that section refers only to remission of “awards” and nothing else. The heading (or the marginal note, as it used to be called) is “power to remit award”. But sub-s. (1) says “… the High Court may from time to time remit the matters referred, or any of them, to the consideration of the arbitrator…”
This is then followed by the words “Where an award is remitted…” in subsection (2). “Matters” mentioned in subsection (1) appears to be wider than “award” mentioned in subsection (2). In other words, where thematter referred is an award and the award is remitted by the High Court to the arbitrator, then sub-s. (2) applies.
Under s. 24, an arbitrator may be removed before he hands down an award, or after he has handed down the award. In the latter case, the award may be set aside.
Order 69 r. 2(1) of the Rules of the High Court 1980, under which this application was made to the High Court provides:
(1) Every application to the Court:
(a) to remit an award under section 23 of the Act; or
(b) to remove an arbitrator or umpire under section 24(1) of that Act; or
(c) to set aside an award under section 24(2) thereof must be made by originating motion to a single Judge in Court.
Thus we see that the RHC 1980 refers to an application under s. 23 of the Act as an application to remit an award which seems to support the contention of learned counsel for the Appellant that only an award may be remitted under s. 23. But, that seems to go against the wording of s. 23 itself when it uses the word “matters”.
We shall now turn to case law.
Based on the research done by learned counsel for both parties, there does not appear to be a single case in this country where a ruling made in the course of an arbitration had been referred to court and remitted back to the arbitrator. The cases are on “awards” and “interim awards”.
Syarikat Pemborong Pertanian & Perumahan v. Federal Land Development Authority[1969] 1 LNS 172; [1971] 2 MLJ 210 was an application to set aside an award. Ong Guan Teck & Ors v. Hijjas Kasturi[1982] CLJ 31; [1982] CLJ (Rep) 616was an application for the extension of the period of six weeks limited by O. 69(4), (1) of the RHC 1980 to make an application to remit an award under s. 23 of the Act. Jeuro Development Sdn Bhd v. Teo Teck Huat (M) Sdn Bhd[1998] 3 CLJ Supp 366was an application to set aside two awards, one on liability and one on damages. AC Ho Sdn Bhd v. Ng Kee Seng[1998] 2 CLJ 645(CA) was also an application to set aside an award. So are Hartela Contractors Ltd v. Hartecon JV Sdn Bhd & Anor[1999] 2 CLJ 788(CA), Future Heritage Sdn Bhd v. Intelek Timur Sdn Bhd[2003] 1 CLJ 103(CA), Chiam Tan Tze & Anor v. The Sarawak Land Consolidation and Rehabilitation Authority And Another Case[1994] 3 CLJ 605.MCIS Insurance Bhd v. Associated Cover Sdn Bhd[2001] 1 LNS 322; [2001] 2 MLJ 561 concerned an “interim award” on liability made and published by the arbitrator.
In these cases the meaning of “award” and “interim award” was discussed. We do think we have to repeat them or discuss them further. In our view, the decision made by the arbitrator in this case is clearly not an award or interim award. It is merely a ruling on the admissibility of documents.
What these cases show is that all applications made to court under s. 23 are in respect of awards or interim awards. In none of these cases was there an application made to challenge a ruling made in the course of the arbitration to exclude certain documents.
The English case of Exormisis Shipping S.A. v. Oonsoo, The Democratic Peoples Republic of Korea and the Korean Transportation Corporation [1975] 1 LLR 432 offers an interesting illustration. Section 22 of the (English) Arbitration Act 1950 is in pari materia with the Malaysian s. 23. In the course of the arbitration proceedings, the charterers applied to the umpire for an order giving them leave to amend their defence and counterclaim and to fix further hearing at which they would be entitled to be present and put forward their case. The umpire refused and the charterers applied to the court for an order compelling the umpire to rehear the case contending that the court had, under s. 22(1) of the (English) Arbitration Act 1950, unfettered discretion to remit matters referred at any time for reconsideration by arbitrators. The application was dismissed. Donaldson J held:
(1) the only power of the Court to intervene in an arbitration was the statutory power contained in the Arbitration Act, 1950 (see p. 434. col. 1); and there was no inherent power in the High Court to supervise arbitrators (see p. 434, col. 1);
(2) it was entirely a matter for Parliament to decide whether or not the High Court should have general supervisory jurisdiction (see p. 434, col.2); and the Court had no jurisdiction to accede to the application (see p. 434, col. 2).
In Three Valleys Water Committee v. Binnie & Partners C.A Firm [1990] 52 BLR 42, one of the issues was whether the arbitrator’s decision refusing leave to serve pleadings out of time was a procedural mishap and whether the court could intervene. It was held by Steyn J:
(7) Moreover, section 22 envisaged the reconsideration of a matter dealt with in an award and there was therefore no power for the court to order that an arbitrator should reconsider a pre-award ruling…
The decision of the Court of Appeal in England in Fletamentos Maritimos S.A. v. Effjohn International B.V. (No. 2) [1997] 2 LLR 302 makes the position very clear. Briefly in that case, the arbitrator refused an application for discovery. Waller LJ, at p. 306 said:
I have always understood the position to be that there are no circumstances which could give rise to a power to review an interlocutory direction not made in the form of an award. Basically the position is, as I understand the authorities, that the Court has never had some general power to supervise arbitration and review interlocutory decisions. The power which it does have come from the Arbitration Acts. It follows that there can be an examination as to whether there has been misconduct at any stage which may lead to the arbitrator being removed. But the power to review and remit under s. 22 applies to awards. (See Mr. Justice Donaldson (as he then was) in Exormisis Shipping S.A. v. Oonsoo [1975] 1 Lloyd’s Rep. 432; Three Valleys Water Committee v. Bunnie [1990] 52 BLR 47, a decision of Mr. Justice Steyn (as he then was); and Lord Donaldson, M.R. in King v. Thomas Mc Kenna Ltd. [1991] 2 QB 480 at p. 490B-C). In so far as the Judge relied on s. 22(1) (which speaks of matters rather than awards) as providing the power to review and remit a decision not in the form of an award, it seems to me with respect his view is inconsistent with well established authorities.
The judgment of Donaldson LJ in the (English) Court of Appeal case of King & Arthur v. Thomas McKenna Ltd. & Another [1991] 2 QB 480 makes it even clearer. His Lordship, said at p. 490:
Another distinction which has to be borne in mind is that in litigation there is a right of interlocutory appeal at every stage, subject only to restrictions as to time and the need to obtain leave. By contrast in arbitration, subject to certain exceptions such as the power to remove an arbitrator for bias, any intervention by the court can only occur after the award has been made.
We accept the views expressed in the English cases mentioned above which, perhaps, may be summarised as follows:
(a) the court has no power to supervise arbitration and to review interlocutory decisions of an arbitrator;
(b) section 22(1) (Malaysian s. 23(1)) envisages the consideration by the court of a matter dealt with in an award;
(c) the court has no power to order that the arbitrator should reconsider a pre-award ruling;
(d) An exception is an application to remove an arbitrator (Malaysian s. 24).
Coming back to the present case. The decision that is being challenged is the ruling of the arbitrator excluding certain documents. It is clearly not an award or an interim award. Following the views taken by the English courts on a similar provision of the law, the matter being referred to court in this case is clearly not envisaged by s. 23 of the Act. Furthermore, to allow such a ruling to be referred to court and remitted back to the arbitrator under s. 23 of the Act would slow down arbitration proceedings and defeat the whole purpose of arbitration. In an arbitration proceeding, as in a trial, an arbitrator or a judge would have to make numerous rulings along the way regarding admissibility of evidence, documentary or otherwise, whether a question may be allowed to be asked or not and so on. To allow every such ruling to be referred to court and remitted back to the arbitrator would seriously delay the proceedings before the arbitrator, what more, as in this case, where the decision of the High Court is appealed further and where there are a number of such applications and further appeals. It would also increase costs.
The purpose of arbitration is to settle a dispute outside court, to save time and costs and also to enable a more flexible procedure to be followed, unlike in a court of law. It is meant to take the dispute out of the normal process of court. That is why there is no right of appeal from a decision, order or judgment of an arbitrator. That is why the law provides that only in specific matters that applications may be made to court in respect of an arbitration proceeding. That is why the grounds on which the court may interfere with an award of an arbitrator are very limited – see for example Hartella Contractors Ltd v. Hartecon JV Sdn. Bhd. & Anor [1999] 2 CLJ 788 (CA) and Future Heritage Sdn Bhd v. Intelek Timur Sdn Bhd[2003] 1 CLJ 103(CA).
In this case, the decision of the arbitrator being challenged is merely a ruling that certain documents are not admissible. Even in a normal trial in courts of law, such rulings are not appealable. A party has to wait until the end of the case, appeal against the final judgment, decision or order and when arguing the appeal, argue on the correctness or otherwise of all those rulings. To allow every ruling of an arbitrator in the course of the arbitration proceeding to be challenged in court would defeat the main purpose of arbitration and borders on an abuse of the process of the court. In any event, we are of the view that that is not the kind of “matter” envisaged by s. 23 of the Act. The respondent should have waited until the end of the arbitration proceeding and when the award is handed down, challenge the award and in so doing challenge the ruling.
In light of the view that we have taken, it would not be proper for us to decide whether the ruling of the arbitrator excluding those documents is right or wrong at this stage. We leave the issue open so that the respondent may challenge it if and when he decides to challenge the award when made.
In the circumstances, we allow this appeal with costs and direct the arbitrator to proceed with the arbitration on the basis of his ruling regarding the admissibility of the documents in question.
We do not think it is necessary for us to discuss prayer (c) (removal of the arbitrator under s. 24(1) of the Act). The learned judge did not make such an order nor did the parties argue that prayer before us. We take it that the prayer has been abandoned. Indeed it is irrelevant in view of the order made by the learned judge and by us in this appeal.

TALK TO MEMBERS OF THE ASSOCIATION OF ISLAMIC BANKING INSTITUTIONS MALAYSIA

About two years ago, a Ph.D. student from the University of Istanbul came to my office to interview me for his thesis. The first question he asked me was: “How do you define ‘Islamic law’?” I replied: “Any law that is not unIslamic.” After he had returned to Istanbul, he sent me an email. Among other things he said: “How I wish that our ulamas (Muslim scholars) are as broad minded as you are.” I replied: “The point is, I am not an ulama.”

And that is the first point I want to make.

The second point is, I do not come here to talk or to answer questions about Islamic banking or Islamic finance or even the law relating thereto, because, first, I cannot claim to know Islam or banking or finance or even the law relating thereto. Secondly, because I dare not answer questions off the cuff for fear of making mistakes. Furthermore, as a Judge I am not supposed to give legal advice, right or wrong, free or otherwise. Instead, I will speak about cases arising from Islamic banking transactions in court, something that I am acquainted with and try to suggest a solution for a problem that may arise later.

So much for the preamble. Now the substance.

Islamic business and Islamic finance

What is “Islamic finance” in this country is quite easy to identify. To identify “Islamic business” is more difficult.

If by “Islamic business” we mean contractual transactions carried out in accordance with Islamic law, the applicable law being Islamic law, then, if we exclude Islamic banking and takaful from it, there may be none. Contracts are governed by the Contracts Act 1950, the Sale of Goods Act 1957 and so on. In such cases, it is those Acts and the common law that apply. And, of course, the forum is the civil court.

But, I think I must repeat what I had said before. First, please do not make the common mistake of drawing a dividing line between what is normally called “civil law” and “Islamic law’: that everything that is called “Islamic law” is 100% God-made law and that there are no non-prophet human opinions in it.

Secondly, please do not think that what is called “civil law” is 100% different from what is called “Islamic law”. Those who have studied the two would have found similarities in a great majority of the principles of the two laws, especially in commercial matters. Quite often, it is the dressing that distinguishes the two, not the substance. At times, in practice, the difference between a so-called “Islamic transaction” and a “conventional transaction” is just the use of a different form! (Here I am speaking from my personal experience).

Coming now to “Islamic finance”. This covers mainly Islamic banking and capital market matters such as bond issues. Of course, takaful must be added to it.

When we talk about cases, meaning cases filed in court arising from Islamic finance transactions, if we exclude cases arising from Islamic banking and takaful transactions, there is hardly any.  (Of course I do not mention inheritance, waqf and apostasy because I do not think they can be considered as a “business”).

So, the net result is that, when we talk about “Islamic finance cases” we are actually talking about cases arising from Islamic banking transactions. Of course it would not be right if we do not include cases arising from takaful insurance policies.

Are there cases arising from Islamic banking in the civil courts? The answer is: “Yes”. A study done shows that as at 31.12.2001 there were 6,074 cases filed in the subordinate courts (Magistrate Courts and Sessions Courts) with a total value of RM148,804,607.73 and 2,567 cases filed in the High Courts with a total value of RM673,572,555.33.

What type of cases are these? Most of them are applications for order for sale under the National land Code, suits for recovery of money which in conventional a banking transaction is called “loan” but in Islamic banking is called the “purchase price” or “sale price” depending on from whose angle you are looking, the “vendor” (lender) or the “purchaser” (borrower). The others are civil claims for the same and for removal of caveats.

In all these cases, there are no issues of Islamic law involved. That is because contract documents are drafted by advocates and solicitors, trained in civil law, in accordance with the requirements of civil law, using civil law precedents plus and minus a few clauses to make them “Islamic”. Charges are governed by the provisions of the National Land Code. The remedies are provided by the National Land Code. The procedure is provided by the Rules of the High Court 1980. If companies are involved, the relevant law is the Companies Act 1965. The pleadings are drafted and the trials or hearings are conducted by advocates and solicitors of the civil courts.

You will be surprised if I were to tell you, and I do so now, that so far there has not a been a single occasion when the court had to decide a point of Islamic law in such cases. Perhaps, I should mention a few reported cases arising from Islamic banking. In Tinta Press Sd. Bhd. v. Bank Islam Malaysia (1987) 2 M.L.J. 192 (Supreme Court) the issue was whether the High Court was right in issuing a mandatory injunction, a common law remedy. Bank Islam Malaysia Berhad v.Adnan bin Omar (1994) 3 C.L.J. 735 (High Court) was an application for an order for sale under the National Land Code. The issue taken was that the provisions of Order 83 rule 3(3) and rule 3(7) of the Rules of the High Court 1980 were not complied. In Dato’ Nik Mahmud bin Daud v. Bank Islam Malaysia Berhad (1996) 4 M.L.J. 295 (High Court) the order prayed for was that the charge and the sale and purchase agreements were void on the ground that they contravened the provisions of Kelantan Malay Reserve Enactment 1930. It should be noted that in that case, at first, another ground was raised i.e. the Bank Islam was prohibited from taking a charge in a transaction based on ‘riba’ and therefore, the charge was ultra vires the Articles of Association of the bank. That would have raised an “Islamic law” issue. But, fortunately for the Judge that argument was abandoned! The latest case, of course, is the judgment of the Court of Appeal in Bank Kerjasama Rakyat Malaysia Berhad v. Emcee Corporation Sdn. Bhd. (2003) 1 C.L.J. 625, delivered on 29.1.03. There again it was an application for an order for sale under the National Land Code arising from a transaction under the Al-Bai Bithaman Ajil. The issue was whether there was a “cause to the contrary” as provided by section 256 of the National Land Code. This is what I said, delivering the judgment of the Court:

“As was mentioned at the beginning of this judgment the facility is an Islamic banking facility. But that does not mean that the law applicable in this application is different from the law that is applicable if the facility were given under conventional banking. The charge is a charge under the National Land Code. The remedy available and sought is a remedy provided by the National Land Code. The procedure is provided by the Rules of the High Court 1980. The court adjudicating it is the High Court. So, it is the same law that is applicable, the same order that would be made, if made, and the same principles that will be applied in deciding the application.”

I do not say that we are right even though we believe we are. But, I do say that, as at today, that is the law. As Tun Suffian once said, “If I make a mistake, it becomes law.”

So we see that in none of the reported cases so far the civil court had to decide on shari’ah issues, although it came very close to it in one.

Is that strange? To me, the answer is: “No”. This is because, in addition to what I have said earlier, what is now called “Islamic banking transaction” or “product” is not something created and developed by the ulamas (Islamic scholars) of past centuries. It is not even created and developed by present day ulamas. They are created and developed by conventional economists, bankers, accountants and lawyers who either themselves know Islamic law or in consultation with the Islamic scholars, only to get an opinion whether a particular transaction or product is contrary to Islamic law. They are implemented by people like you. And I do not think you re ulamas too.

Secondly, as has been pointed out, the law applicable is civil law. Until today we do not have Islamic Contracts Act, Islamic Sale of Goods Act, Islamic Land Code, Islamic Companies Act and so on, even though, I am convinced that, based on the experience so far, if and when they are made, they are not going to be very different from what we now have. I believe that if we were to look at the substance, we will find that a greater part of our existing so-called civil law, is actually Islamic. Prof. Hashim Kamali of the International Islamic University Malaysia puts the figure at 90%. Of course, it is anybody’s guess as no one so far has made a study of the real position. According to David Musa Pidcock who wrote the introduction to the book “Napoleon and Islam”, 96% of Code Napoleon were taken from the rulings and opinions of Imam Malik. The point I am making is this: there are similarities in the principles of the two laws. It is not a case of “Oh, East is East, and West is West and never the twain shall meet”, to quote the words of Rudyard Kipling.

Thirdly, all these Acts of Parliament are Federal Laws and are within the jurisdiction of the civil courts to administer.

Should the jurisdiction over Islamic banking cases be transferred to the shari’ah courts?

At times, we do hear such a suggestion. With respect, such suggestion appears to be made out of the notion that since it is an “Islamic “ matter it must go to the shari’ah  courts without knowing what type of cases they are. My question is: What is so “unIslamic” about the civil courts making orders for sale, removing caveats, giving judgments to the financial institutions to recover unpaid “balance purchase price”, making the defaulters bankrupts, winding up the defaulting companies and so on AND what is so “Islamic” about the shari’ah courts making similar orders if jurisdiction is given to them?

At the risk of being accused of bias (since I come from the civil court), with respect, such suggestion is made on the wrong assumption that since the cases are Islamic banking cases, the issues to be determined by the courts are Islamic law issues.

In my view, there should not be a transfer of jurisdiction from the civil courts to the shari’ah courts in such matters. My reasons are:

First, as we have seen, of the cases that have arisen so far, not a single case involves the determination of question of Islamic law. On the other hand, they involve issues of land law, company law and others regarding which the shari’ah courts have no jurisdiction and the shari’ah court judges are not trained in and are not familiar with. The shari’ah court judges do not even have precedents to fall back on.

Secondly, the cases do not only involve Muslims and the shari’ah courts do not have jurisdiction over non-Muslims. Neither can non-Muslim lawyers appear in the shari’ah courts. Certainly, we do not want to limit Islamic banking to Muslims only. Even the Prophet (s.a.w.) had business transactions with Jews.

Thirdly, the shari’ah courts are state courts, independent of each other and with their own appellate courts. Whereas, the civil courts have only one Court of Appeal and one Federal Court, there are 14 Shari’ah Courts of Appeal in the country. Imagine the confusion in the law when the Shari’ah Courts of Appeal give contradictory judgments. This is further compounded by the view that the doctrine of stare decisis (binding precedents) do not apply in the shari’ah courts as no such principles are to be found in the shari’ah, which view, with respect, to me, is not a well-reasoned opinion. Even in making laws we will have the problem of inconsistencies as between states. Even in matters of family law we already have such problems. However, it is hoped that with the introduction of common user shari’ah appellate judges scheme, this problem will be overcome, at least in the states that agree to the system.

Fourthly, with respect, I doubt whether the shari’ah courts, as they are now, are capable of handling all those cases.

Fifthly, the remedies available in the shari’ah courts are very limited. Remedies such as injunction, specific performance and, declaration, for example, are not available.

Sixthly, the problem of enforcement. Winding-up and bankruptcy proceedings, to give only two examples, are not available in the shari’ah courts. Reciprocal enforcement of judgments in foreign countries is not available. Even inter-state enforcement is full of problems.

(You would notice that I have avoided discussing the issue of constitutionality of the laws. I reserve that for my judgment in case the issue arises later, even then, after hearing full arguments.)

Determination of Islamic law issues arising from civil courts

It is better to be prepared in case the necessity arises. I shall now discuss several alternative forums where such issues may be determined.

1. Civil courts.

While I do say that, as it is now, the civil courts clearly have an advantage over the shari’ah courts, that civil court judges are in a better position to understand banking transactions, I do not say that the civil courts are equipped to decide Islamic law issues arising from Islamic banking. That is because the civil court judges are not trained in Islamic law and not in a position to ascertain the law.

1. Civil courts assisted by Islamic law advisers

Under this arrangement, a civil court is assisted by an Islamic scholar well versed in Islamic banking who I shall call “Islamic law adviser”. The civil court judge decides the facts, poses the Islamic law issue to the Islamic law adviser for his ruling, the ruling is binding on the judge, the judge applies the ruling and decides the case. That looks workable. Even now we have “assessors” in land acquisition cases. One plus point in such an arrangement is that it is the same courts in which those issues arise that determine the issues and decide the cases, while the advantages that the civil courts have over the shari’ah courts are preserved.

1. Shari’ah courts

All the weaknesses of the shari’ah courts mentioned earlier are also relevant here. In addition, with respect, I doubt whether, generally speaking, the judges of the shari’ah courts are well versed in Islamic baking. True that they know Arabic. But to know a language does not mean that a person will know every subject written in that language. Bearing in mind that Islamic banking is a modern creation using conventional precedents, I believe there is more literature on it in English than in Arabic. True that they are trained in the shari’ah, but how many of them are trained in Islamic banking as is practised today? And, as this is a new subject, there are no precedents for them to go by. The difficulty is not to find the relevant Hadiths or authorities, if any, on a subject but to understand the nature of the transactions or products, before applying the law.

1. Fatwa Committees of the Religious Councils in the States.

I do not think that they are the proper forums. My reasons are:

First, the multiplicity of such committees, one in each state, will give rise to conflicting rulings on similar issues.

Secondly, the committees are committees of the Religious Councils of the respective states. The Religious Council itself may be a party to a proceeding from which the issue arises. There may be a conflict of interest or that the transparency of the committee may be questionable.

Thirdly, with respect, it is doubtful whether the members of the committees have sufficient knowledge of conventional and modern Islamic banking and finance.

E.National Fatwa Committee.

As far as I know this is an ad hoc committee to which the Rulers Conference refers questions of Islamic law for its determination. Its members consist of all the muftis of all the states in the country. Even though the committee appears impressive in terms of the number of top Islamic scholars sitting in it, I do not think it is the best choice. My reasons are:

First, with respect, even though the muftis are well versed in Islamic law, they may not necessarily be familiar with modern Islamic banking and conventional banking, the knowledge of the latter is necessary to understand the former.

Knowing the law alone is no guarantee that a correct decision will be arrived at. Understanding the facts is equally important. Applying the correct law on wrongly perceived facts will give a wrong conclusion. I always give the Ruling of the Shari’ah Committee of the Religious Council of the State of Penang as an example. That can be seen in the case of  G. Rethinasamy v. Majlis Ugama Islam Negeri Pulau Pinang (1993) 2 M.L.J. 166. In that case the Shari’ah Committee ruled that part of the mosque and burial ground occupying on the land claimed by G. Rethinasamy to be his should be demolished and removed as it was occupying G. Rethinasamy’s land without his consent. The Shari’ah Committee did not consider whether the land occupied by part of the mosque and the burial ground was waqf land. Of course, I refused to follow the fatwa as I found clear evidence that that part of the land was waqf land. That is an example where correct law was applied to a wrongly perceived fact leading to a wrong ruling. Of course, the problem may be overcome by inviting experts in conventional banking, civil law and others to advise the committee as and when required.

Secondly, the committee itself is too big and cumbersome. It would not be ideal and indeed costly for it to sit regularly and make expeditious decisions. Bear in mind that the cases are postponed pending the ruling of the issues by the committee.

1. National Shari’ah Advisory Council (NSAC)

This committee at Bank Negara was formed in 1996. Its members consist of Islamic scholars, lawyers, bankers, academicians and Shari’ah Judge. The original intention of forming this committee was to provide advice on Islamic law to conventional banks that operate Islamic banking business. All directions issued by Bank Negara in consultation with the council are binding on the banks. In fact, I am told that Bank Negara is currently in the process of enhancing the committee into a legally recognized authority regarding Islamic finance, Islamic banking and takaful. This includes reference by courts or arbitrators on Islamic law issues relating to such businesses for rulings by the committee. Bank Negara may even establish a secretariat through which such references may be made.

As I see it, there are several advantages to refer such issues to this committee. First, the members are specialists in their respective fields relevant for the decisions to be made. If necessary, the membership may be enlarged.

Secondly, it is a “national” committee. So, the ruling on similar facts will be consistent.

Thirdly, since the introduction of Islamic banking in this country the committee has been advising Bank Negara on such issues. In other word, it has the experience.

Fourthly, the administrative support system is there, the Bank Negara itself.

What has to be done, perhaps, is to strengthen it by appointing or co-opting as and when necessary, members whose knowledge and experience are relevant to a decision to be made. If, the ruling is going to be made binding on the civil courts, perhaps a civil court judge should also be made a member. He has the practical experience of the nature of the cases before the courts in which those issues arise.

This committee should be the sole authority to decide on such issues. So banks, financial institutions and all other institutions, faced with such issues, should refer the issues to the committee, so that the rulings will be consistent on similar facts. References on questions of Islamic law in all federal laws yet to be made, should also be provided to be made to this committee.

Procedure for reference

I suggest that the following procedure be adopted. The Judge, at the case management stage, with the assistance of counsel for both parties, formulates the question to be referred for a ruling. The facts should be stated, followed by the issues and the question to be answered. Relevant documents may be enclosed. The committee will deliberate and make its ruling. In the meantime the proceedings in the court is adjourned. Upon receiving the ruling, the court will proceed with the hearing or trial. Applying the ruling on the question to be answered, the court decides the case. The ruling of the committee should be final and not subject to appeal.

Should the ruling be binding on the court?

In my view, the answer is: “Yes”. This is to ensure consistency and to avoid non-experts overruling such rulings. Otherwise, the whole purpose of referring the issue to the committee is defeated. There will be inconsistencies in the opinions on similar facts even though the doctrine of stare decisis may check such inconsistencies. Besides, it must be remembered that we are dealing with Islamic law, a religious law of the Muslims. It cannot be equated with a finding of negligence or assessment of damages. I do not think that the Muslim ummah can accept a ruling by a committee of experts on Islamic law being overturned by a civil court judge, what more if he is a non-Muslim.

Takaful cases

All that has been said above equally applies to takaful cases. In most cases, they are claims for damages arising from road accidents. The main issue is negligence which falls within the sphere of the law of tort. Assessment of damages is governed by the well developed and long established principles. It is the same law that applies whether on question of liability or quantum of damages in both conventional insurance or takaful.

Conclusion

The type of cases arising from Islamic banking, finance and takaful that come to court are similar to those arising from conventional banking, finance and takaful. The applicable laws are the same. The claims, the issues and the prayers are similar. They are matters that the courts deal with everyday. I think I can confidently say that we do not find those cases peculiar or difficult. However, the nagging question is, what if an issue of Islamic law were to arise in future? Until today, it is still a hypothetical or academic question. But, in order to be prepared I have made my suggestion as to which forum should determine such an issue.

Perhaps I should conclude by quoting Imam Abu Hanifah: “What I say is only my opinion. If there are better arguments, follow them”.

COURT OF APPEAL, KUALA LUMPUR
GOPAL SRI RAM, JCA; ABDUL HAMID MOHAMAD, JCA; ALAUDDIN MOHD SHERIFF, JCA
CRIMINAL APPEAL NO: P-05-21-1999
[2003] 2 CLJ 701
CRIMINAL LAW: Dangerous Drugs Act 1952 – Section 39B(1)(a)- Trafficking in heroin – Drugs found in apartment occupied by accused – In basin cooking on stove and in plastic bag on top of water tank – Whether having custody and control – Whether having knowledge – Dangerous Drugs Act 1952, ss. 2, 37(d), (da), 39B(1)(a), 39B(2)

The appellant was convicted of an offence under s. 39B (1)(a) Dangerous Drugs Act 1952for trafficking in 1689.68 grams of heroin when the dangerous drugs, together with paraphernalia related to the preparation and packing of heroin, were found in different parts of the apartment he was staying in. The facts showed that in so convicting the appellant, and finding him to have custody and control of the offensive drugs, the learned judge took into consideration inter alia the admission of the appellant that he was stirring the contents of the basin cooking on the stove in the apartment, the contents which were later confirmed to be heroin. The facts also showed that the appellant, when giving his defence from the dock, adverted to one Choong whom he said was the one who had rented the apartment. The learned judge found that Choong was not a fictitious figure, but ruled nonetheless that the defence had not raised any reasonable doubt as to the appellant’s guilt. In this appeal, the appellant argued that the conviction was unsustainable as the learned judge was bound but had failed to make a finding of fact as to whether it was the appellant or Choong or both were the “actual traffickers”. It was further argued that it was wrong of the learned judge to have found the appellant to have control and custody of the drugs when Choong too had the keys to the apartment.
Held:
Per Abdul Hamid Mohamad JCA
[1] There is no merit in the contention that the learned judge was bound to make a specific finding whether the appellant or Choong or both were traffickers. What is important is for the learned trial judge to make a finding, which he did, whether on the facts before him, the prosecution had proved that the appellant was guilty of the offence of trafficking for which he was charged.
[2]A trafficker is a trafficker and there is no such thing as “actual trafficker” or “not actual trafficker”. Consequently, the learned trial judge, having found the appellant to be a trafficker, did not have to use the word “actual” and neither was there a need to make a finding whether Choong was an actual trafficker or not. Indeed, it would be wrong for the learned trial judge to do so, as Choong was not charged and his name only appeared in the appellant’s defence.
[3]It is very clear from the judgment that even after considering the defence of the appellant, the learned judge had no doubt that the appellant had the custody and control of the heroin contained in the basin on the stove and also that he knew that it was heroin. That was a definite finding that the learned judge made and the finding was not wrong on the facts. Likewise, on the facts the learned judge was not wrong in his finding that the appellant also had knowledge and custody and control of the rest of the heroin found in the apartment.
[Bahasa Malaysia Translation of Headnotes
Perayu telah disabitkan dengan kesalahan di bawah s. 39B(1)(a) Akta Dadah Berbahaya 1952 kerana mengedar 1689.68 gram heroin apabila dadah berbahaya tersebut, bersama dengan peralatan-peralatan bagi penyediaan dan pembungkusan heroin, telah dijumpai di beberapa bahagian apartmen yang didiaminya. Fakta menunjukkan bahawa hakim yang bijaksana, dalam mensabitkan perayu dan mendapati bahawa beliau mempunyai jagaan dan kawalan terhadap dadah berkenaan, antara lain telah mengambilkira pengakuan perayu bahawa ia ada mengacau kandungan besen yang sedang dimasak di atas dapur di apartmen tersebut di mana kandungan tersebut kemudian disahkan sebagai heroin. Fakta juga menunjukkan bahawa perayu, sewaktu memberi pembelaan dari kandang, telah bercerita tentang seorang Choong yang dikatakannya sebagai orang yang menyewa apartmen tersebut. Hakim yang bijaksana mendapati kewujudan Choong sebagai tidak direka, namun merumuskan bahawa pembelaan gagal membangkitkan apa-apa keraguan munasabah tentang kebersalahan perayu. Dalam rayuan di sini, perayu berhujah bahawa sabitannya tidak dapat dipertahankan oleh kerana hakim bertanggungan untuk tetapi gagal membuat dapatan fakta sama ada pengedar sebenar adalah perayu atau Choong ataupun kedua-duanya sekali. Disamping itu, dihujahkan juga bahawa hakim yang bijaksana adalah silap bilamana mendapati perayu mempunyai jagaan dan kawalan terhadap dadah sedangkan Choong juga mempunyai kunci kepada apartmen tersebut.
Diputuskan:
Oleh Abdul Hamid Mohamad HMR
[1] Penegasan bahawa hakim bijaksana harus membuat dapatan khusus samada ianya perayu atau Choong ataupun kedua-duanya sekali yang menjadi pengedar, adalah tidak bermerit. Apa yang penting adalah untuk hakim bijaksana membuat dapatan, sepertimana yang dibuatnya, sama ada berdasarkan fakta di hadapannya pendakwa telah membuktikan bahawa perayu bersalah melakukan kesalahan mengedar sepertimana tuduhan.
[2]Seorang pengedar adalah seorang pengedar dan tidak wujud apa yang dipanggil “pengedar sebenar” atau “bukan pengedar sebenar”. Oleh itu, hakim yang bijaksana, setelah mendapati perayu sebagai seorang pengedar, tidak perlu menggunakan perkataan “sebenar” serta tidak juga perlu untuk membuat dapatan sama ada Choong adalah seorang pengedar sebenar ataupun tidak. Malah, ianya salah untuk hakim yang bijaksana berbuat demikian, oleh kerana Choong tidak dituduh dan namanya hanya timbul sewaktu pembelaan perayu.
[3]Penghakiman dengan jelas menunjukkan bahawa walaupun setelah menimbang pembelaan perayu, hakim yang bijaksana tidak ada keraguan bahawa perayu mempunyai jagaan dan kawalan heroin yang terkandung di dalam besen di atas dapur dan bahawa dia mengetahui ianya adalah heroin. Itu merupakan dapatan pasti yang dibuat hakim yang bijaksana dan dapatan tersebut tidaklah salah di sisi fakta. Begitu juga, berdasarkan fakta, hakim yang bijaksana tidak salah dalam dapatannya bahawa perayu mempunyai pengetahuan dan jagaan serta kawalan terhadap dadah-dadah heroin selebihnya yang dijumpai di beberapa tempat dalam apartmen tersebut.
[Rayuan ditolak.]
Reported by WA Sharif
Counsel:
For the plaintiff – Karpal Singh; M/s Karpal Singh & Co
For the respondent – Abdul Ghani Patail (Jagdeep Singh) Attorney General Chambers

JUDGMENT
Abdul Hamid Mohamad JCA:
The appellant was the 1st accused in the High Court. He was charged with the 2nd accused under s. 39B(1)(a) and punishable under s. 39B(2) of the Dangerous Drugs Act 1952(“the Act”). At the close of the prosecution’s case, the learned trial judge amended the charge to one under s. 12(2) and (3)and punishable under s. 39A(2) of the Act. Both of them pleaded guilty. The appellant was convicted and sentenced to 12 years imprisonment and 10 strokes of the rotan, the sentence of imprisonment to run from the date of arrest. The 2nd accused was sentenced to nine years imprisonment and 10 strokes of the rotan, the sentence of imprisonment also to run from the date of arrest.
The public prosecutor appealed against that decision (the first appeal). The Court of Appeal allowed the public prosecutor’s appeal and directed that both the accused be called upon to enter upon their defence on the original amended charge. Both the accused appealed to the Federal Court. The Federal Court subsequently dismissed their appeals.
Subsequently, the learned trial judge continued the trial and heard the defence of both the accused. The learned judge acquitted and discharged the 2nd accused but found the appellant guilty of the original amended charged and sentenced him to death.
In this appeal (the second appeal) we are only concerned with the appeal by the appellant, the 1st accused.
The facts that had been adduced by the prosecution during the prosecution’s case had been aptly summarised by the learned trial judge in his first grounds of judgment, which we now reproduce:
At about 6.00 pm on the 30th June 1990, Inspector Perumal a/l Alagan of the Cawangan Anti-Dadah, Bukit Aman, Kuala Lumpur, acting on information received, led a party of police officers in a raid upon an apartment, number 45-11-11, located at Green Lane Heights, Jalan Besi, Penang. When the police party arrived at the entrance to the apartment, Inspector Perumal found the outer metal grilled door to the apartment closed but not locked. The glass louvres of the front window of the apartment were closed shut. He gently pulled open the metal grilled door and attempted to open the wooden door to the apartment immediately behind the metal grilled door. However, he found it locked. He thereupon rapped on the wooden door and shouted repeatedly, “Polis! Polis! Buka pintu!” but to no avail as no one came forward to open it. All of a sudden he heard the sound of things being moved inside the apartment whereupon he managed to kick open a hole in the door and gain entry into the apartment by reaching through the hole and unlocking the door from inside.
Inspector Perumal and the police party then rushed into the apartment and saw two male Chinese standing there, one in the living area (identified as the first accused) and another in the kitchen area (identified as the second accused). He shouted. “Polis! Jangan bergerak!” Both the accused were clad only in their underwear. He noticed white powder and orange colouring on the tips of their fingers and on their feet. They looked shocked and pale. Inspector Perumal saw in the kitchen area two light-green basins containing orange-coloured powder in loose form.
He then went to the back of the apartment where there was a balcony. He saw a yellow-coloured basin containing orange-coloured powder. The basin was on a lighted gas stove. He ran and turned off the flame.
After identifying himself as a police officer to the two accused persons and informing them that he was arresting them on suspicion of processing drugs, Inspector Perumal and the police party carried out a search of the apartment.
Upon interrogation and prior to the search, the first accused led Inspector Perumal to the only toilet in the apartment where he pointed upwards with his mouth (he was already handcuffed at the time) to the water tank in the toilet. Inspector Perumal saw a white and light orange-coloured plastic bag protruding over the top of the tank. He took down the plastic bag (a “GAMA” supermarket bag) and found inside four compressed blocks of a white substance, each wrapped separately in plastic and brown paper.
A search resulted in the recovery of three packets of suspected heroin kept in a pail in the third room of the apartment. Inspector Perumal also recovered from a drawer of an altar in the living area six small packets of suspected heroin inside a “Fashion 20” plastic bag.
Besides the above items which were seized, Inspector Perumal also found and seized various other items as detailed in the search list exhibit P37. The contents of the three basins, the plastic bag recovered from on top df the tank of the water-closet and the other packets seized were, upon analysis, found to contain heroin. Swabs taken of the hands and feet of the two accused persons also revealed, upon analysis, traces of heroin. Traces of heroin were also found on their underwear. Samples of powder gathered from the floor of the kitchen and the balcony also showed the presence of heroin and caffeine.
The sum total of the suspected drug found in the apartment formed the subject-matter of the charge against the two accused persons of trafficking in 1,689.68 grammes of heroin and thereby having committed an offence under section 39B(1)(a) of the Dangerous Drugs Act 1952and punishable under section 39B(2) of the Act.
In his defence at the continued trial after the first appeal the appellant gave an unsworn statement from the dock which was put in writing and marked as exh. D74. His statement had also been summarised by the learned trial judge, and we now reproduce:
… In essence, it was his contention that he had gone to the apartment to collect overdue instalments on an illegal money lending transaction at the behest of his employer, one Tan Bak Huat (“Tan”).
To explain his presence in the apartment at the time of the police raid, the first accused gave a lengthy background statement. He said that Tan was a loan-shark for whom he worked as a debt-collector and that he received 8% of the amount of loans recovered as his commission in ordinary cases and 10% in problem cases. In September 1989, Tan had made a loan RM20,000.00 to one Choong Hock Chuan (“Choong”), an illegal bookmaker or “bookie” who operated from the Penang Turf Club, at a monthly interest rate of 20%. The first accused said he received 8% of every collection made from Choong.
During the first three months there were no problems with Choong’s loan, but in January 1990 Tan told the first accused to look for Choong at the Penang Turf Club, which he did. Choong then told him that he was facing financial difficulties and would discuss his problem with Tan. At the end of February 1990, Tan told the first accused that Choong was again giving problems and asked the first accused to collect the interest due from Choong. The first accused then met Choong at the Turf Club on the 3rd March 1990 whereupon Choong told him he was facing financial difficulties and asked for a week’s grace to pay up.
On the 7th March 1990, Tan summoned the first accused to his house where Choong was already present. Choong then put forth a proposal to overcome his financial difficulties by carrying out illegal gaming activities and told them that he had found a suitable place for that purpose. However, he was encountering problems with the police and, after some discussion, Choong and Tan proposed that the first accused sign the tenancy agreement to rent the place to carry out illegal gaming activities as he, the first accused, had no problems with the police. Choong also gave an assurance that, after the tenancy agreement was signed, he would repay RM12,000.00 which was then outstanding. As both Choong and Tan gave an undertaking that they would settle any fines that the first accused would have to pay and that they would also assume responsibility for all problems which arose, the first accused, after initial hesitation, was persuaded to accept the proposal as he also required the money for his father’s medical treatment.
On the 7th March 1990, Choong took the first accused from his house to an office where two persons, a man and a woman, were present. On Choong’s instructions, he signed the tenancy agreement and handed it over to Choong whereupon Choong gave him RM1,000.00 to pay to the woman. Choong also signed the tenancy agreement. The first accused said that he did not understand the contents of the document he signed as it was not in Chinese.
He then asked Choong about the repayment which he had promised. Choong then asked him to follow him to the apartment where Choong paid him RM12,000.00 which was the outstanding instalment.
While still at the apartment, the first accused said that the woman had come to check the particulars of his identity card and, being satisfied therewith, had gone back. He said that, because of the frequent problems he found collecting overdue instalments from Choong, he made a duplicate set of keys to the apartment and returned the original set to Choong the same day. After that, he never made any payments towards the rental of the apartment and did not have any connection with the apartment.
On the 30th June 1990 at about 4.30 p.m he received a telephone call from Tan as a result of which he went to Tan’s house. Tan told him that Choong was in arrears of instalments for two months. As a result of this he proceeded to the apartment at 46-11-11 Green Lane Heights, Jalan Besi, Penang. Prior to leaving his house, he had informed the second accused as well as members of his family to contact him at the said address if there were any problems in relation to his father, because the latter was ill at that time.
When he arrived at the apartment at about 5.30 pm, he found the door locked and the windows closed. He called out Choong’s name a number of times but there was no reply. He then used his duplicate set of keys to unlock the door and found Choong in the living area of the apartment and waling towards him while holding some keys.
He then asked Choong about his debt to Tan and Choong told him that he could only repay RM3,000.00 whereas the balance was RM8,000.00. Choong also told the first accused that he would only go downstairs to collect the balance of the money and told him to wait awhile in the apartment. The first accused told Choong that he would keep Choong’s keys to the apartment until his return and if he failed to make repayment, he, the first accused, would then surrender the keys to the owner of the apartment. Before going out, Choong gave him RM3,000.00. Choong also told the first accused that he would only be away for a short while to collect the balance of the money. Before leaving, Choong told him that there was a pot (“periuk”) in the kitchen on the stove and asked the first accused to help stir the contents until he returned. The first accused agreed. Choong told the first accused to lock the apartment because he had gambling implements in the third room. Choong was wearing shorts at the time and went into the third room to change into a pair of trousers before leaving. The first accused noticed that Choong’s hands were covered with powder.
The first accused went to the kitchen and saw a basin on the stove and proceeded to stir the contents with a wooden spoon. After about ten minutes he felt sticky and hot as the air was full of dust. Because of this he removed his clothing and kept them in the second room. When he came out of the second room, he heard knocking at the door. He used Choong’s set of keys to open the door and saw the second accused who told him that their father was ill and their mother wanted him to return home. The first accused said he kept two sets of keys to the apartment in his shirt in the second room. One set was his and the other was Choong’s.
He then told the second accused to enter the apartment and lock the door. He told him to wait awhile as he was waiting for his friend to bring money which was owed. The first accused then told the second accused to lock the door while he went to the back. As he was in his underwear only, the first accused told the second accused to keep the set of keys to the apartment with him.
As it was very hot inside the apartment, the second accused took off his shirt and placed it in the living area and went into the kitchen to be with the first accused. After a few minutes, the first accused excused himself to go to the toilet and asked the second accused to stir the contents of the basin with the wooden spoon that he had used. On returning from the toilet, the first accused took over the stirring of the contents of the basin from the second accused.
The second accused then told him that he was feeling hot and sticky and that he wanted to take a bath, whereupon the first accused told him that there was a towel in the second room. The second accused then went to the second room, took off his clothes, took the towel and headed towards the bathroom. Before that the first accused had grown tired of waiting for Choong and had made up his mind that after the second accused had his bath they would return home because their father was sick. He felt that Choong had deceived him and that he could not wait any longer. As soon as the second accused had entered the bathroom and hung the towel up but before he could close the door of the bathroom, they both heard kicking and loud knocking at the front door of the apartment. The first accused was startled momentarily and as he was heading towards the door to open it, he found it being broken and a hand being inserted to unlock it. At the time when the police entered the apartment he was in the living area while the second accused was in the area of the kitchen in front of the bathroom.
The police proceeded to search the apartment after which they asked him several questions to which his answer was that he did not know, in the Hokkien dialect. The first accused was then directed to go to the bathroom to carry out a search. He denied having pointed out anything with his mouth and stated that the things that were found in the bathroom were discovered by the police on their own.
After a complete search of the apartment, he and the second accused were taken to their house for a search, after which they were taken to the police station.
The first accused stated that he had no knowledge of the things found in the apartment and that he was never involved in any activity pertaining to dangerous drugs or trafficking in them. The second accused, his younger brother, had been in the apartment only for a short while, for about five or ten minutes, before the police raid and the second accused would not know anything about Choong or the things that were found in the apartment.
The learned trial judge then analysed the evidence of the appellant at length and concluded:
I therefore find that the statement of the first accused from the dock has not succeeded in raising any reasonable doubt in my mind in the case for the prosecution. There are so many aspects in it which are unexplained, as stated earlier in this judgment. His actions cannot be accepted as those of a reasonable man in the circumstances….
I have considered the case for the prosecution and juxtaposed it against that of the defence and taking them together as a whole, I find that the first accused had not succeeded in raising a reasonable doubt in my mind as to his guilt. It may well be that he was in cahoots with Choong Hock Chuan in trafficking in the heroin found in the apartment but that does not detract from his guilt or absolve him from liability, in the criminal sense of that term.
Having regard to the definition of “trafficking” in section 2 of the Act and the presumptions in paragraphs (d) and (da)(I) of section 37 of the Act, a large quantity of heroin, as well as paraphernalia related to the preparation and packing of heroin, found in different parts of the apartment and the admission of the first accused that he did stir for some length of time the contents of the basin cooking on the stove in the apartment, I find that the first accused did have in his custody and under his control the basin which contained the heroin being cooked and that he knew that it was heroin. It is therefore only reasonable to conclude that he also had knowledge of and custody and control over the rest of the heroin found in the apartment because of his familiarity with the apartment in knowing that gambling implements were kept in the third room (although told this by Choong), in knowing that a towel was kept in the second room and to the extent of stripping himself to his underwear in order to be comfortable. Otherwise, he would have risked being surprised by visitors or occupants of the apartment besides Choong as Choong purportedly rented the apartment to carry out illegal gaming activities there. Ergo, he is deemed to have been in possession of all the heroin found in the apartment. His defence has not been able to raise any reasonable doubt in my mind as to this.
I have considered the submissions of the prosecution and the defence at the close of the prosecution’ case as well as at the close of the defence and considered them as a whole in arriving at my decision.
Before us Encik Karpal Singh, learned counsel for the appellant argued, firstly, that the learned trial judge having found that Choong Hock Chuan was not a fictitious character had failed to make a finding of facts as to who was the “actual trafficker”. He submitted that the learned trial judge must make a specific finding whether the appellant or Choong or both were traffickers. The learned counsel did not refer us to any authority for the proposition. With respect, in our view there is no merit in that argument. What is important was for the learned trial judge to make a finding, which he did, whether on the facts before him, the prosecution had proved that the appellant was guilty of the offence of trafficking for which he was charged. In law, there is no such thing as “actual trafficker” or “not actual trafficker”. A trafficker is a trafficker. The question is whether the appellant was proved to be one. The learned trial judge had found him so. He did not have to use the word “actual”. Neither need he make a finding whether Choong was an “actual trafficker” or not. Indeed, we do not think it is right for the learned trial judge to do so. Choong was not charged. No evidence was led against him by the prosecution. His name only appeared in the appellant’s defence. Indeed it would be wrong for the learned judge to make a finding of guilt (that is what it really amounts to) of a person not charged and against whom no evidence was adduced by the prosecution.
Secondly, it was argued that the learned judge did not amend the charge. He referred us to p. 219 and p. 1 of the Appeal Record.
Page 1 contains the “pertuduhan pindaan” dated 2 August 1994 tendered by the prosecution. At p. 219, the record reads:
Court delivers written judgment.
First accused is found guilty and convicted on original amended charge dated 2.8.94.
It is very clear that that was the “original amended charge”. It was under that charge that this court in the first appeal directed that the appellant be called upon to enter upon his defence. It was under that charge that the subsequent continued trial proceeded. It was under that charge that the appellant was found guilty and convicted.
With respect this ground too has no merits.
The third ground argued by the learned counsel for the appellant was that the learned trial judge had failed to consider that the presumptions under s. 37(d) and (da) are separate and that the test for the rebuttal of the presumptions are separate tests. He further argued that it was wrong for the learned trial judge to find that the appellant had control and custody of the drugs found in the other parts of the premises. Accessibility was not conclusive, he argued as Choong had the key to the premises too.
We have to look at the defence put up by the appellant, by way of an unsworn statement from the dock which was prepared before hand and tendered as an exh. D74, the content of which we have reproduced earlier. We have also reproduced the learned judge’s analysis of the defence and his conclusion thereon. The learned judge found that the statement of the appellant did not raise any reasonable doubt in his mind as there were so many aspects that were unexplained, which he discussed in great detail. The learned judge then made a definite finding “that the first accused did have in his custody and under his control the basin which contained heroin being cooked and that he knew that it was heroin.” (emphasis added).
It is very clear from the judgment that even after considering the defence of the appellant, the learned judge had no doubt that the appellant had the custody and control of the heroin contained in the basin on the stove and also that he knew it was heroin. That is a definite finding that the learned judge made. On the facts, we do not see how it can be said that he was wrong.
Regarding the heroin found in the other part of the premises, after analysing the evidence, and concluding as he did concerning the heroin in the basin on the stove, he concluded that the appellant also had knowledge of and custody and control of the rest of the heroin found in the apartment. We do not wish to repeat the reasons given by him, which we have already reproduced. That disposes the defence of the appellant on the heroin found in other parts of the premises. Again, on the facts, we do not see how the learned judge can be said to be wrong.
In conclusion, we do not find any error of law or facts, any miscarriage of justice or any valid reason for us to interfere with the decision of the learned judge. We therefore dismissed the appeal and confirmed the conviction and sentence.

PP v. OTTAVIO QUATTROCCHI
COURT OF APPEAL, KUALA LUMPUR
ABDUL HAMID MOHAMAD, JCA; RAHMAH HUSSAIN, JCA; HASHIM YUSOFF, JCA
CRIMINAL APPEAL NO: W-09-37-2002
30 APRIL 2003
[2003] 2 CLJ 613
CIVIL PROCEDURE: Appeal – Appeal to Court of Appeal – Extradition – Whether decision of High Court final and conclusive – Whether there was a right of appeal to Court of Appeal – Extradition Act 1992, s. 37(6)

The Sessions Court had, on 2 December 2002, discharged unconditionally one Ottavio Quattrocchi (‘the respondent’) in an extradition matter. The prosecution (‘the applicant’) filed an application for review of the order made by the Sessions Court vides. 37(1) of the Extradition Act 1992(‘the Act’) to the High Court. On 13 December 2002, the High Court judge confirmed the decision of the Sessions Court and dismissed the application for review. On the same day, the applicant filed a notice of appeal against the said decision. On 16 December 2002, the applicant made an application vide encl 5(a) (‘the said application) and obtained an ex parte order under s. 44 of the Courts of Judicature Act 1964to impound the respondent’s travel documents, including his international passport (‘the contentious order’). Before this court, the respondent sought to set aside the contentious order and the notice of appeal filed earlier on three grounds, namely, that there was non-disclosure of material facts by the applicant when making the said application; that issue involved had become academic; and that there was no right of appeal against the decision of the High Court in the review proceedings.
The main issue here was whether an appeal could be made to the Court of Appeal against the High Court’s decision in an extradition matter.
Held:
Per Abdul Hamid Mohamad JCA
[1] The applicant was not guilty of non-disclosure of the material facts when the ex parte application was made. The onus was upon the respondent to prove that the applicant knew for sure that the respondent had left the country at the time of the application. This, however, it did not do. Therefore, this contention could not be a ground to set aside the contentious order.
[2]The contentious order was not academic. Whilst the purpose of the said order was to prevent the respondent from leaving the country, it was not an injunction which sought to restrain the respondent from leaving the country. The contentious order was for the respondent to surrender his international passport. In absence of a time restriction, it was possible that the respondent would return to Malaysia and surrender his passport, or he may return and the order may be enforced on him. Furthermore, the respondent was the principal director of a company subsisting in Malaysia. Therefore, it could not be said that the said order could not be complied with or enforced at all.
[3]The powers and jurisdiction to inquire into an extradition matter is vested in the Sessions Court as stated by s. 18 of the Extradition Act. In an extradition proceeding, there is no right of appeal from the Sessions Court to the High Court. The way to challenge the decision of the Sessions Court is either by way of an application for a writ of habeas corpus (by the fugitive criminal), or by way of a review (by the prosecution). In relation to the latter, the Act provides that the order made by the High Court is final and conclusive.
[4]Whilst the Sessions Court had merely decided on the preliminary objection and not after a full enquiry under s. 19 of the Extradition Act, the fact remained that the trial judge had decided to and discharged the respondent. And it is equally important to note that the High Court judge had decided to uphold the decision of the Sessions judge and denied the applicant’s application for a review made under s. 37. In light of s. 37(6), there is no right of appeal against the said decision.
[Bahasa Translation of Headnotes
Pada 2 Disember 2002, Mahkamah Sesyen telah melepaskan Ottavio Quattrocchi (‘responden’) tanpa syarat dalam suatu kes ekstradisi. Pihak pendakwa (‘pemohon’) telah membuat permohonan ke Mahkamah Tinggi untuk mengkaji semula perintah Mahkamah Sesyen di bawah s. 37(1) Akta Ekstradisi 1992 (‘Akta’). Pada 13 Disember 2002, hakim Mahkamah Tinggi mengesahkan keputusan Mahkamah Sesyen dan menolak permohonan kajian semula tersebut. Pada hari yang sama, pemohon telah memfailkan notis rayuannya terhadap keputusan tersebut. Pada 16 Disember 2002, pemohon membuat permohonan melalui Lampiran 5(a) (‘permohonan tersebut’) dan memperoleh perintah ex parte di bawah s. 44 Akta Mahkamah Kehakiman 1964 untuk menahan dokumen perjalanan responden, termasuk pasport antarabangsanya (‘perintah yang dipertikai’). Di mahkamah ini, responden memohon untuk mengetepikan perintah yang dipertikai dan notis rayuan yang difailkan terdahulu atas tiga alasan, iaitu, bahawa terdapat penyorokan maklumat penting sewaktu membuat permohonan berkenaan; bahawa isu yang berbangkit sudah menjadi akademik; dan bahawa tidak wujud hak untuk merayu terhadap keputusan Mahkamah Tinggi dalam prosiding kajian semula.
Isu utama yang timbul ialah sama ada rayuan ke Mahkamah Rayuan boleh dibuat terhadap keputusan Mahkamah Tinggi dalam kes ekstradisi di sini.
Diputuskan:
Oleh Abdul Hamid Mohamad HMR
[1] Pemohon tidak melakukan apa-apa penyorokan fakta material sewaktu membuat permohonan ex parte tersebut. Beban adalah di atas responden untuk membuktikan bahawa pemohon mengetahui dengan pasti bahawa responden telah pun meninggalkan negara semasa permohonan dibuat. Ini bagaimanapun tidak dibuat oleh responden. Oleh itu, hujah ini tidak boleh menjadi alasan untuk mengetepikan perintah yang dipertikai.
[2]Perintah yang dipertikai tidak menjadi akademik. Sementara tujuan perintah tersebut adalah untuk menghalang responden dari meninggalkan negara, ia bukanlah suatu injunksi yang boleh menghalang responden dari meninggalkan negara ini. Perintah yang dipertikai adalah untuk responden menyerahkan pasport antarabangsanya. Dengan ketiadaan had masa, ianya tidak mustahil bahawa responde akan kembali ke Malaysia dan menyerahkan pasportnya, atau ia mungkin kembali dan perintah tersebut akan dilaksanakan ke atasnya. Lagipun, responden adalah pengarah utama sebuah syarikat yang masih beroperasi di Malaysia. Oleh itu, ianya tidak dapat dikatakan bahawa perintah tersebut tidak akan dipatuhi atau tidak dapat dilaksanakan langsung.
[3]Sebagaimana yang tercatit dalam s. 18 Akta Ekstradisi, kuasa dan bidangkuasa untuk meneliti sesuatu hal ekstradisi adalah terletak atas Mahkamah Sesyen. Dalam sesuatu prosiding ekstradisi, tidak ada hak merayu dari Mahkamah Sesyen ke Mahkamah Tinggi. Cara untuk mencabar keputusan Mahkamah Sesyen adalah sama ada melalui permohonan habeas corpus (oleh penjenayah dikehendaki), atau melalui kajian semula (oleh pihak pendakwa). Dalam kes yang terkemudian, Akta memperuntukkan bahawa apa-apa perintah yang dibuat oleh Mahkamah Tinggi adalah muktamad dan konklusif.
[4]Sementara Mahkamah Sesyen hanya memutuskan atas bantahan awal, dan tidak selepas suatu pendengaran penuh di bawah s. 19 Akta Ekstradisi, hakikatnya adalah hakim bicara telah memutuskan untuk dan membebaskan responden. Dan ianya juga penting untuk diperhatikan bahawa hakim Mahkamah Tinggi telah memutuskan untuk mengesahkan keputusan hakim Sesyen dan menolak permohonan pemohon untuk kajian semula di bawah s. 37. Mengambilkira s. 37(6), tidak ada hak untuk merayu terhadap keputusan tersebut.
Perintah bertarikh 16 Disember 2002 dan notis rayuan dibatalkan.]
Reported by M Maheswaran

Case(s) referred to:
Abdi & Anor v. Secretary of State for the Home Department & Anor [1996] 1 All ER 641 (refd)
Chua Han Mow v. Superintendent of Pudu Prison [1979] 1 LNS 14; [1980] 1 MLJ 219 FC (refd)
Chuck v. Cremer 1 Coop T Cott 338 (refd)
Hadkinson v. Hadkinson [1952] 2 All ER 567 (refd)
Jasa Keramat Sdn Bhd v. Monatech (M) Sdn Bhd [2001] 4 CLJ 549CA (refd)
Megat Najmuddin Dato’ Seri (Dr) Megat Khas v. Bank Bumiputra Malaysia Bhd [2002] 1 CLJ 645FC (refd)
Monatech (M) Sdn Bhd v. Jasa Keramat Sdn Bhd [2002] 4 CLJ 401FC (refd)
R v. Dartmoor Board of Visitors, ex p Smith [1986] 2 All ER 651 CA (refd)
United Malacca Bhd v. Pentadbir Tanah Daerah Alor Gajah & Other Applications [2002] 4 CLJ 177FC (refd)
Wee Choo Keong v. MBf Holdings Bhd [1993] 3 CLJ 210SC (refd)
Yong Teck Lee v. Harris Mohd Salleh & Anor [2002] 3 CLJ 422CA (refd)

Counsel:
For the applicant – Kamarul Hisham DPP; AG’s Chambers
For the respondent – Muhammad Shafee Abdullah (Rabinder Singh); M/s Shafee & Co
Watching brief – Cyrus V Das (Steven Thiru)
JUDGMENT
Abdul Hamid Mohamad JCA:
On 16 December 2002, the Public Prosecutor (applicant) filed an ex parte notice of motion (encl. 5(a)) under s. 44(1) of the Courts of Judicature Act 1964for an order:
(1) that the travel documents of the Respondent including his international passport(s) and/or restricted passport(s) be surrendered to Court pending the final disposal of the Applicant’s appeal to the Court of Appeal herein or further order;
Sitting alone hearing the ex parte application, I granted the order as per prayer (1) above. This will be referred to as “the order of 16th December 2002”.
On 26 December 2002, the respondent filed a notice of motion (encl. 15(a)) praying for the following orders:
1. The ex parte order dated 16.12.2002 be set aside;
2. Notice of Appeal dated 13.12.2002 be struck out;
…
This was heard inter partes. This judgment is in respect of that motion (encl. 15(a)). However, for the sake of consistency the parties will be referred to as the applicant and respondent as in encl. 5(a).
A brief background of the case is necessary to understand the arguments of the parties.
The respondent, an Italian national, had lived in India since 1964. When in India he had given an undertaking through his counsel to the Supreme Court of India that he would present himself for investigation. However, in breach of the undertaking he failed to turn up as promised. He left India and came to Malaysia on 29 July 1993. The Union of India sought the extradition of the Respondent for offences involving criminal conspiracy. Upon request for extradition by India, the Malaysian Ministry of Home Affairs, on 15 December 2000, issued a Special Direction under s. 3 of the Extradition Act 1992(“the Act”). A warrant of apprehension was issued by the magistrate under s. 13(1) of the Acton 18 December 2000. The warrant was served and the respondent was arrested on 20 December 2000. He was produced before the magistrate and the case was transmitted to the Sessions Court pursuant to s. 15 of the Act. When the respondent appeared before the Sessions Court, he was granted bail pending the hearing of the extradition proceedings. He was required to surrender his international passport and deposit a sum of RM400,000 into court.
On the same day (20 December 2000) the respondent through his counsel, gave notice that he would be raising two preliminary objections, namely:
(a) that no charges had been framed against the respondent by the Union of India; and
(b) when the warrant of apprehension was executed, no charges had been read out to the respondent.
The said preliminary objection was heard on 12 February 2001 but the Sessions Court judge reserved his decision to 3 April 2001.
In the meantime, the respondent commenced judicial review proceedings in the High Court and obtained leave as well as an order to stay the extradition proceedings in the Sessions Court. This prevented the Sessions Court from giving its decision on 3 April 2000. The Union of India intervened in the judicial review proceedings and together with the Government of Malaysia opposed the judicial review application. On 21 October 2002 the High Court dismissed the application for judicial review. Subsequently, on 2 December 2002, the Sessions Court judge delivered his decision on the preliminary objections. The Sessions Court judge upheld the preliminary objections of the respondent and decided that the respondent should be discharged unconditionally. Accordingly the respondent’s international passport was returned to him.
On 3 December 2002, the applicant filed an application in the High Court for a review of the order of the Sessions Court under s. 37(1) of the Act.
On 10 December 2002 the Honourable Attorney General of Malaysia decided to grant a fiat or written authorization to Dato’ Dr. CV Das, counsel for the Union of India, under s. 41(1) of the said Act to appear on his behalf in the review proceedings. This “review” proceedings should not be confused with the earlier “judicial review” proceedings.
On 10 December 2002 the learned judge of the High Court decided that the said fiat was unlawfully issued.
On 13 December 2002 the High Court judge dismissed the review application and confirmed the decision of the Sessions Court. As a result the respondent was released unconditionally. The applicant filed a notice of appeal to this court.
On 16 December 2002 the applicant applied for and obtained the ex parte order that the respondent is seeking to set aside now, besides the notice of appeal.
Preliminary Issue
Encik Kamarul Hisham, for the Public Prosecutor (applicant in encl. 5(a)) raised a preliminary issue at the beginning of the hearing of the respondent’s application (encl. 15(a)). He argued that the respondent must observe the order of 16 December 2002 first before he should be heard on his application to set aside the said order. He cited the cases of Chuck v. Cremer 1 Coop. T. Cott 338; 41 ER 1028 (1846); Hadkinson v. Hadkinson [1952] 2 All ER 567 (CA) and Wee Choo Keong v. MBf Holdings Bhd[1993] 3 CLJ 210(SC).
We do not think that those cases are of any assistance to the Applicant in this case. Chuck v. Cremer is an authority for the proposition that a party who knows of a null or irregular order, should apply to discharge it. Whilst such an order is in existence it must not be disobeyed.
Hadkinson v. Hadkinsondecided that:
Held: it was the plain and unqualified obligation of every person against, or in respect of, whom an order was made by a court of competent jurisdiction to obey it unless and until it was discharged, and disobedience of such an order would, as a general rule, result in the person disobeying it being in contempt and punishable by committal or attachment and in an application to the court by him not being entertained until he has purged his contempt;…
Wee Choo Keong is also a contempt case where it was said that a party in contempt cannot be heard until he has purged his contempt.
This is not such a case. Here, it is not in dispute that at the time when the respondent left the country on 14 December 2002 the order of 16 December 2002 had not been made yet. In fact, the ex parte application had not been filed yet. The position is also very different from that in Jasa Keramat Sdn Bhd v. Monatech (M) Sdn Bhd[2001] 4 CLJ 549, a judgment of this court which was subsequently confirmed by the Federal Court (see Monatech (M) Sdn Bhd v. Jasa Keramat Sdn Bhd [2002] 4 CLJ 401).
This is not a contempt proceeding. The respondent is applying to set aside an ex parte order ordering him to surrender his international passport. He had left the country before even the application, what more the order, was made. To require him to comply first before his application can be heard would mean that he would have to come back to Malaysia not only to surrender his passport but, effectively, to surrender himself when there is no order placing him on bail and when, in fact, he has been unconditionally discharged.
In the circumstances, we overruled the preliminary objection and proceeded to hear the respondent’s application on merits.
Main Grounds
Dato’ Muhammad Shafee put forward three main grounds in support of the application. They are, first, there was a non-disclosure of material facts by the applicant when making the application in encl. 5(a). Secondly, the matter is now academic. Thirdly, there is no right of appeal against the decision of the High Court in the review proceedings.
Non-disclosure Of Material Facts
This ground only concerns the application to set aside the order of 16 December 2002.
Learned counsel for the respondent argued that the ex parte order of 16 December 2002 should be set aside on the ground of non-disclosure of material facts by the applicant that the respondent had left the country when the application was made. On the question whether the applicant knew or did not know that the respondent had left the country before the application was made, affidavit evidence is conflicting. In their affidavits Dato’ Muhammad Shafee and Mr. Ravinder Singh, solicitors for the respondent said that the applicant knew about it. Encik Kamarul in his affidavit said that “there was at all material times uncertainty regarding the respondent’s whereabouts due to the conflicting statements made by the respondent… and his solicitors…”.
Based on such affidavit evidence alone, it would not be right for this court to make a definite finding of fact whether the applicant knew that the respondent had left the country when he filed the application on 16 December 2002. In fact, since it is the respondent who alleges it, it can be said that it is not proved that the applicant knew for sure that the respondent had left the country when the respondent made the application on 16 December 2002. In the circumstances, it cannot be said that the applicant is guilty of non-disclosure of a material fact when making the ex parte application. So this ground cannot be a ground for us to set aside the order of 16 December 2002.
Academic
It was also argued by the learned counsel for the respondent that the order is purely academic and unenforceable. This is because the fact is, whether known to the applicant or not, at the time when the order was made, the respondent was no longer in the country and is not in the country now. The whole purpose of the order was to prevent him from leaving the country. There is no way in which the order can be enforced, short of the respondent willingly coming back to Malaysia, which is most unlikely.
Encik Kamarul, for the applicant argued that the order is not academic because, first, there is no fixed period for the respondent to comply. It could be complied later if and when the respondent returns to Malaysia. Secondly, it is a matter of public interest that the issues, especially of law, that arise in this proceedings be determined by this court.
The first argument of Encik Kamarul clearly applies to the application to set aside the order of 16 December 2002, while the second argument ie, the public interest issue is only relevant to the application to set aside the notice of appeal.
On the question whether the order is academic, we are of the view that we will have to consider the nature of the order in the light of the circumstances of the case. There is no doubt that the purpose of the order was to prevent the respondent from leaving the country pending the disposal of the appeal. But, the order is not in the form of an injunction to restrain the respondent from leaving the country. If that is the nature of the order, then there is no doubt that it is academic. But, here the order is for the respondent to surrender his international passport. There is no time limit for him to do so. He may choose to return to Malaysia and surrender his passport or he may return and the order may be enforced on him.
In this case, the respondent had come to and lived in Malaysia since 1993 and there is evidence that he is the principal director of E.A.T.I Sdn. Bhd. and that he conducted all his business dealings in Malaysia through this company, even though the company is in a poor financial state – para. 10(4) of the affidavit of Encik Kamarul Hisham, the Deputy Public Prosecutor. In other words, considering the nature of the order and the circumstances of the case, the order is not academic in the sense that it cannot be complied or enforced at all. It would be different if the respondent were a mere tourist on a short stay with no residence, no address and no business in Malaysia and has left the country for good, under which circumstance, the order may be academic.
In the circumstances, we are of the view that the order is not academic.
On the second issue ie, public interest issue, we were referred to a number of English cases by Encik Kamarul, namelyR v. Dartmoor Board of Visitors, ex parte Smith [1986] 2 All ER 651 (CA), Abdi and Another v. Secretary of State for the Home Department and Another [1996] 1 All ER 641 (HL).
We think it is sufficient for us to discuss the House of Lords judgment in R. v. Secretary of State for the Home Department, ex parte Salem (“ex parte Salem ‘s case”). In that case, Salem, a Libyan national, arrived in the United Kingdom in April 1997 and claimed political asylum. He was granted temporary admission and awarded income support and related benefits. In May 1997 a Home Office memorandum recorded that asylum had been refused. Some time before 5 September 1997 the Home office informed the Benefits Agency that Salem’s claim had been recorded as determined, thereby causing the Agency to cease payment of benefit. Despite that, the Home Office subsequently asked Salem’s solicitors for further evidence to enable the Secretary of State to determine the application. In November 1997 Salem was informed by the Agency that his income support had been stopped because his application for asylum had been refused, but it was not until May 1998 that he was informed of that refusal by the Home Office. He appealed to the immigration adjudicator and also applied for judicial review of the Secretary of State’s decision to notify the Agency that his application for asylum had been refused. That application was eventually dismissed by the Court of Appeal, and Salem appealed to the House of Lords. Before the appeal was heard, he was granted refugee status by the immigration adjudicator. The question arose whether the House of Lords should hear the appeal because it raised an issue of general importance, namely the time at which a claim for asylum was “determined” by the Secretary of State within the meaning of reg. 70 of the 1987 regulations, even though the appeal was academic.
Held – The House of Lords had a discretion to hear an appeal in a cause where there was an issue of public law involving a public authority even though by the time the appeal was due to be heard there was no longer a lis to be decided directly affecting the rights and obligations of the parties as between themselves. However, the House would exercise that discretion with caution and would not hear appeals if the result would be academic between the parties unless there was good reason in the public interest for doing so, eg, where there was a discrete point of statutory construction not involving a detailed consideration of the facts and where it was likely that the issue would have to be resolved in the near future because a large number of similar cases existed or were anticipated.
We agree with the principle of the case. However, it should be noted that the issue there is whether an appellate court should hear an appeal even though it is academic. The case cited above is not relevant in regard to the application to set aside the order of 16 December 2002. But, it is relevant for the determination of the issue whether the notice of appeal should be struck out.
Considering the number of important issues arising from the present case, in particular whether charges should have been framed against the respondent by the Union of India and read to him when he appeared at the Sessions Court, whether the Sessions Court was empowered to discharge the respondent without holding a full enquiry pursuant to s. 19 of the Act, whether the learned High Court Judge, in the review proceedings, exceeded his jurisdiction in considering matters other than those considered and decided upon by the Sessions Court Judge and whether the learned High Court Judge was right in his interpretation of the phrase “advocate and solicitor” in s. 41(1) of the Act; and further considering that the issues, as far as we know, have never been decided by this or a more superior court, this case should be a proper case for us to exercise our discretion to hear the appeal. But, that is subject to one most important condition, that is, in law there must be a right of appeal to this court. If there is none, then this court has no discretion to exercise.
Is There A Right Of Appeal?
We now come to the most vital issue: whether in an extradition proceeding, there is a right of appeal from the decision of the High Court to the Court of Appeal. This is the main issue in this application. If there is no right of appeal, then the purported notice of appeal must be struck out and the application for an interim order under s. 44(1) of the Courts of Judicature Act 1964is not maintainable.
It should be noted that sitting alone on 16 December 2002 hearing the application, ex parte, I avoided making a definite finding whether the appellant had a right to appeal against the order of the High Court in question. I merely satisfied myself that a notice of appeal had been filed, it had not been struck out and that there was a de facto appeal pending. I took that approach because I knew that in a matter of days the same issue would be heard inter partes by a three-judge panel. It would be premature, for me, sitting alone, hearing only one side, to make a definite and final decision on the issue. We shall now do what I did not do, then.
Extradition proceeding is a criminal proceeding but it is in the nature of a committal proceeding and a committal proceeding is not a trial – Chua Han Mow v. Superintendent of Pudu Prison[1979] 1 LNS 14; [1980] 1 MLJ 219 FC.
The powers and jurisdiction to inquire into an extradition matter is vested in the Sessions Court and in accordance with the procedure specified under the Act – s. 18. Section 19(4) and (5)provides as follows:
(4) If the Sessions Court is of the opinion that a prima facie case is not made out in support of the requisition of the country concerned, the Court shall discharge the fugitive criminal.
(5) If the Sessions Court is of the opinion that a prima facie case is made out in support of the requisition of the country concerned, the Court shall commit the fugitive criminal to prison to await the order of the Minister for his surrender, and shall report the result of its inquiry to the Minister; and shall forward together with such report any written statement which the fugitive criminal may desire to submit for the consideration of the Minister.
Section 36 of the Act provides:
36. A fugitive criminal who is committed to prison under this Act may apply to the High Court for a writ of habeas corpus in accordance with the procedure as provided in the Criminal Procedure Code.
Section 37 of the Act provides:
37. (1) Where a fugitive criminal is ordered by the Sessions Court to be discharged under subsection 19(4), the Public Prosecutor may, at the request of the country seeking his return, within ten days of the making of the order by the Sessions Court, apply to the High Court for a review of the order of discharge on any question of law, and on such application the High Court may so review the order.
(2) Where the Public Prosecutor desires to make such an application, he shall, at the time of the making of the order of discharge by the Sessions Court, give to the Court notice of his intention to apply to the High Court for a review of the order, and such notice shall operate as a stay of the order of discharge by the Sessions Court:
(a) until the expiration of the period of ten days, beginning with the day on which the order of discharge was made; or
(b) if an application for a review of the order of discharge is made, until the determination of the application by the High Court.
(3) Where the Public Prosecutor gives notice of his intention to apply for a review of the order of the Sessions Court, the Court may grant, to the fugitive criminal in respect of whom the order of discharge was made, bail pending the determination by the High Court of the application.
(4) Upon application for a review of the order of discharge, the Sessions Court Judge shall transmit to the High Court the exhibits tendered before him, the evidence admitted in Court, the reasons for his decision and his finding on any question of law which arose during the inquiry.
(5) The High Court to which an application is made for a review of an order of discharge may order the release on bail of the fugitive criminal on such terms and conditions as the Court thinks fit pending determination of the application for review.
(6) The High Court may confirm, vary or quash the order or make a new order in substitution for the order so quashed, and any such order of the High Court shall be final and conclusive.
A few points should be noted here. First, the procedure for the inquiry is as specified under the Act. Secondly, the Sessions Court may make one of the two orders: discharge the fugitive criminal if no prima facie case is made out or commit him to prison if a prima facie case is made out. Thirdly, there is no provision for appeal from the decision of the Sessions Court to the High Court. Instead, if the fugitive criminal is committed to prison he may apply to the High Court for a writ of habeas corpus in accordance with the procedure as provided in the Criminal Procedure Code. The Act is silent regarding appeal from the High Court in thehabeas corpus proceedings. On the other hand, if the fugitive criminal is discharged by the Sessions Court, the Public Prosecutor may, at the request of the country seeking his return, apply to the High Court for a review. Then s. 37(6) of the Actspecifically provides that an order of the High Court either confirming, varying or quashing the order of the Sessions Court or a new order in substitution for the order so quashed shall be final and conclusive. There is no similar provision (ie, that the order of the High Court shall be final and conclusive) in respect of an order of the High Court in thehabeas corpus application by the fugitive criminal.
Contrast these with the provisions in the Courts of Judicature Act 1964and the Criminal Procedure Codein respect of ordinary criminal trials. I shall only mention the major points. First, the Sessions Court may acquit or convict the accused person – s. 173 of the Criminal Procedure Code. Secondly, without going into details, in either case, a party dissatisfied with the decision of the Sessions Court may appeal to the High Court – Chapter XXX of the Criminal Procedure Code and s. 26 of the Courts of Judicature Act 1964. From the decision of the High Court, again without going into details, either party may appeal to the Court of Appeal – s. 50 of the Courts of Judicature Act 1964.
So, is there a right of appeal from the Sessions Court to the High Court from a decision in an extradition proceeding? In our view, the answer is in the negative. The Act, a specific Act, provides the procedure for such an inquiry. The way to challenge the decision of the Sessions Court in such a proceeding is either by way of an application for a writ of habeas corpus (on the application by the fugitive criminal) or by way of a review (on the application by the Public Prosecutor). It is these provisions that are applicable, not the provisions of the Criminal Procedure Code or the Courts of Judicature Act 1964.
Is there a further appeal from the High Court to the Court of Appeal? Again, we will have to look at the provisions of the Act first. The Act is silent regarding a decision of the High Court in ahabeas corpus application by the fugitive criminal. However, as the Act (s. 36) itself provides that the application forhabeas corpus is to be made in accordance with the procedure as provided by the Criminal Procedure Code, the provisions of s. 374 of the Criminal Procedure Coderegarding appeal against a decision in a habeas corpus application applies. The case of Chua Han Mow is one such example.
On the other hand, regarding a decision of the High Court in an application for a review by the Public Prosecutor there is a specific provision in the Act that the order made by the High Court is final and conclusive.
Do the words “final and conclusive” mean that the orders are not appealable? We are of the view that the answer is obvious, ie, such orders are not appealable. We do not think that any other meaning could be given to the phrase.
In election petition cases, the words “shall be final” have again and again been held to mean unappealable. We need only look at the majority decision of this court in Yong Teck Lee v. Harris Mohd Salleh & Anor[2002] 3 CLJ 422. This is the latest of such cases. Most, if not all earlier judgments were considered. The Federal Court had refused an application for leave to appeal to it (O.M. No. 08-46-2002 (S)). So what is said in the majority judgment of the Court of Appeal is final and law.
I shall not repeat the arguments regarding the provisions of the Constitution with regard to the establishment of this court, the provisions of the Courts of Judicature Act 1964 and of all other arguments that had been put forward in Yong Teck Lee ‘s case. The answers are to be found in that case.
However, we think we should add that subsequent to Yong Teck Lee, the Federal Court has delivered its judgment in United Malacca Bhd v. Pentadbir Tanah Daerah Alor Gajah & Other Applications [2002] 4 CLJ 177. It was a five-judge bench. The issue was whether appeals in land acquisition cases would lie to the Court of Appeal or the Federal Court having regard to the provisions of the Land Acquisition Act 1960, the Federal Constitution and the Courts of Judicature Act 1964 and the amendments to all those Acts.
For the sake of clarity, perhaps we should set out the chronology of events:
Before 24 June 1994 – all appeals lay to the Supreme Court.
On 24th June 1994 – pursuant to the amendments to the Federal Constitution and the Courts of Judicature Act 1964, the Supreme Court was renamed “Federal Court”. The Court of Appeal was established. Generally speaking, from 24 June 1994, appeals from a decision of the High Court goes to the Court of Appeal.
With effect from 1 March 1998, pursuant to the amendment to the Land Acquisition Act 1960, appeals in land acquisition cases lie to the Court of Appeal.
We would only like to highlight the majority judgments of the Federal Court regarding the effect of the establishment of the Court of Appeal on the provision of s. 49(1) of the Land Acquisition Act 1960. The provision of s. 49(1) of the Land Acquisition Act 1960prior and subsequent to the creation of the Court of Appeal and until 28 February 1998 was that appeals lay to the Supreme Court/Federal Court. In other words, the fact that the Federal Constitution and the Courts of Judicature Act 1964 were amended to establish the Court of Appeal did not affect the provision of s. 49(1) of the Land Acquisition Act 1960. Appeals continued to lie to the Supreme Court/Federal Court and not to the Court of Appeal. Only after s. 49(1) of the Land Acquisition Act 1960was amended to provide that appeals should lie to the Court of Appeal (as from 1 March 1998) that such appeals lie to the Court of Appeal.
The point we are making here is this: the amendments to the Constitution and the Courts of Judicature Act 1964 did not affect the provision of s. 49(1) of the National Land Code 1960 regarding appeals. The change only came about when the Land Acquisition Act 1960 itself was amended.
Likewise, we are of the view that the same amendments do not affect the provisions of s. 37(6) of the Actand do not confer the right of appeal in extradition cases.
Megat Najmuddin Dato’ Seri (Dr) Megat Khas v. Bank Bumiputra Malaysia Bhd[2002] 1 CLJ 645FC was cited to us. But, we do not think that that case is an authority for the interpretation of the words “shall be final and conclusive”.
We are of the view that, for the same reasons given by this court in Yong Teck Lee, there is no right of appeal against an order of the High Court confirming the order of the Sessions Court discharging a fugitive criminal. The legislature has made it very clear that that is what it wanted the law to be. It is not for the court to rewrite the law made by the legislature. It is not its function. Neither should it encroach into the jurisdiction of the legislature.
It was argued for the applicant that the provision of s. 37(6) of the Actapplies only to a full merit inquiry under s. 19. In this case the Sessions Court did not hold such an inquiry but instead summarily discharged the respondent on preliminary objections relating to the non-existence of the charges. It was also argued that the learned judge of the High Court had failed to confine himself to the issues that were raised before the Sessions Court and instead erroneously embarked on full blown inquiry under s. 19 of the Actand decided on matters that were not strictly before him. The learned High Court judge erred in law when he conducted the review under s. 37 of the Actas if it was an inquiry under s. 19 of the Actand thereby allowed the proceedings to miscarry. In doing so the learned High Court judge exceeded his jurisdiction and power under s. 37 of the said Act. A number of grounds were also forwarded on the merits of the appeal, including that a formal charge was not a pre-requisite to a request for extradition under the Act and that the learned judge had erred in law when he construed the phrase “advocate and solicitor” in s. 41(1) of the Actas not including an advocate and solicitor of the High Court of Malaya.
We must first of all note that we are not, at this stage, hearing the appeal against the decision of the learned High Court judge. Therefore, whether he was right or wrong is not for this court to decide in this application. We are only hearing the application to set aside the order of 16 December 2002 and the notice of appeal. And, the issue we are now discussing is whether, in law, there is a right of appeal from the decision of the learned High Court judge.
It is true that the Sessions Court had decided merely on the preliminary objection and not after a full enquiry under s. 19. But, the fact remains that he had decided to and discharged the respondent. It is a fact that against that decision there was an application for a review under s. 37, a review was done and the learned High Court judge had given his decision. It is against that decision that the applicant purports to appeal to this court. Is there a right of appeal? That is the question. We are of the view that, in view of the provisions of s. 37(6) of the Act, there is none.
In any event s. 50 of the Courts of Judicature Act 1964, even if applicable (which we think is not), does not help the applicant. Section 50(1) of the Courts of Judicature Act 1964provides that “the Court of Appeal shall have jurisdiction to hear and determine any appeal against any decision made by the High Court:
(a)…
(b) in the exercise of its appellate or revisionary jurisdiction in respect of any criminal matter decided by the Sessions Court.
The words “or revisionary” were inserted by Act A909 which came into force on 24 June 1994. The word “revisionary” clearly refers to “revision” in Chapter XXXI of the Criminal Procedure Code, especially s. 323. If the word “appeal” includes “revision”, there is no reason for the word “revision” to be inserted. The word “appeal” too cannot include “review”. As far as we can ascertain, the Criminal Procedure Code does not provide for a review. For the same reason the word “revision” cannot include “review”. It appears in the Extradition Act 1992. We are of the view that the word “review” was purposely used to distinguish it from “revision” under the Criminal Procedure Code.
There are clear distinctions between a “revision” under the Criminal Procedure Code and a “review” under the Act.
First, the Criminal Procedure Code does not state at what particular stage of a proceeding in the subordinate court that the High Court may exercise the power of revision. On the other hand, a review under the Act may only be made after the close of the proceedings in the Sessions Court.
Secondly, in the case a revision, the High Court judge himself may call for the record for the purpose of revision. In the case of a review, it has to be on an application by the Public Prosecutor at the request of the country seeking the return of the fugitive criminal.
Thirdly, review is only against an order of a discharge and nothing else. On the other hand, the reasons for which a High Court judge may exercise his power of revision is much wider, ie, “for the purpose of satisfying himself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of that Subordinate Court” – s. 323(1) of the Criminal Procedure Code.
Fourthly, without going into details, the powers of a High Court judge in a revision is much wider than that of a judge hearing a review under the Act – see ss. 36and 37 of the Actand ss. 324and 325 of the Criminal Procedure Code. Furthermore as said by the Federal Court in Chua Han Mow an extradition proceeding is in the nature of a committal proceeding, not a trial.
We are also of the view that had the legislature intended to include a review under the Extradition Act 1992, it would have inserted the word “review” when it inserted the word “revisionary” in s. 50 of the Courts of Judicature Act 1964.
It was also argued that the Public Prosecutor is also appealing against the order of the High Court in declaring that the fiat given by the Attorney General to Dato’ CV Das was unlawful as it does not fall within the provisions of s. 41(1) of the Act. The first thing to be noted is that there is no separate appeal against that decision. There is only one Notice of Appeal and it says:
SILA AMBIL NOTIS bahawa Perayu yang dinamakan di atas tidak berpuashati dengan keseluruhan keputusan Yang Arif Dato’ Augustin Paul yang diberikan di Mahkamah Tinggi Jenayah Kuala Lumpur pada 13hb Disember 2002 di mana Mahkamah telah menolak permohonan Pemohon/Perayu untuk satu semakan di bawah seksyen 37(1) Akta Ekstradisi 1992 dan seterusnya melepaskan Responden tanpa syarat, kini merayu terhadap keseluruhan keputusan tersebut.
Note that the appeal is against the decision of the learned judge in which he dismissed the application of the applicant for a review under s. 37 of the Actand thereby discharged the respondent unconditionally.
In any case, that ruling is only a subsidiary ruling. The main decision of the High Court is the confirmation of the discharge order by the Sessions Court, which we hold is not appealable. If the main decision is not appealable we do not see how a subsidiary ruling in the decision is appealable. What good would it do anyway? Even if the ruling is appealable and this court decides in favour of the Public Prosecutor, still it will not affect the main decision, it will not make the main decision appealable and be reversed.
If we may be excused for saying so, we think it is very unfortunate that this and higher courts are deprived of the opportunity to determine the important issues that have arisen in this case. It is unfortunate that the determination of such important issues are left only to the High Court to determine and become law. If we may suggest, we think that the legislature should consider amending the Act to provide for appeals in cases such as this. The highest court in the country should have the opportunity to determine such important points of law. What more when the decision affects bilateral relationship between Malaysia and a foreign country. Furthermore, if a fugitive criminal, through habeas corpus proceedings, may go to the highest court in the country to challenge an order made against him, we see no reason why the Public Prosecutor, representing the Government of Malaysia at a request of a country with which Malaysia has entered a binding agreement for the extradition of fugitive criminal, should not have similar right where an order is made in favour of the fugitive criminal. But, that is a matter for the legislature to decide. The judiciary should and could say no more. The function of the court is to apply the law as it is.
In the circumstances, the order dated 16 December 2002 cannot stand. After all that is an interim order pending the disposal of the appeal.
The notice of appeal too is void. For this reason alone the order dated 16 December 2002 and the notice of appeal dated 13 December 2002 should be struck out.

MAHKAMAH RAYUAN, KUALA LUMPUR
ABDUL HAMID MOHAMAD, HMR; ABDUL KADIR SULAIMAN, HMR; RICHARD MALANJUM, HMR
RAYUAN SIVIL NO: N-02-661-1996
[2003] 2 CLJ 168
PROSEDUR SIVIL: Rayuan – Pemberhentian rayuan dan penggantian guaman – Notis telah difailkan di mahkamah – Sama ada notis tersebut boleh dipertikaikan selepas difailkan

Perayu telah membuat suatu rayuan melibatkan responden yang ditetapkan untuk didengar pada 27 Januari 2003. Sebelum rayuan itu sempat didengar, perayu telah memfailkan dan menandatangani dua notis (‘notis-notis berkenaan’), satu mengenai pemberhentian rayuan tersebut dan keduanya, suatu notis niat pihak untuk bertindak secara sendiri sebagai ganti peguamcara dimana beliau menyatakan hasratnya untuk meneruskan tindakannya terhadap responden dengan sendiri menggantikan peguambelanya yang asal.
Pada 27 Januari 2003 rayuan ini dipanggil dan En Manian memaklumkan mahkamah ini bahawa dia mewakili perayu dan perayu mempertikaikan notis-notis berkenaan.
Diputuskan:
Oleh Abdul Hamid Mohamad HMR
[1] Perayu berhak untuk melepaskan peguamnya dan bertindak sendiri dan kemudiannya melantik peguam baru untuk mewakilinya. Akan tetapi, bilamana notis pemberhentian beliau telah difailkan di mahkamah, maka mulai saat itu rayuan tersebut disifatkan sebagai telah terbatal oleh mahkamah. Kaedah 73 Kaedah-kaedah Mahkamah Rayuan 1994dengan jelasnya memperuntukkan bahawa dalam halkeadaan sedemikian, mahkamah tidak perlu membuat apa-apa perintah pembatalan untuk pembuangan rayuan tersebut daripada senarai. Lagipun, mahkamah tidak boleh mendengar suatu rayuan yang sudah tidak wujud lagi.
Dilaporkan oleh M Maheswaran
Legislation referred to:
Rules of the Court of Appeal 1994, r. 73

Counsel:
Bagi pihak perayu – Manian K Marappan; T/n Manian K Marappan & Co
Bagi pihak responden – Sri Dev Nair (PC Low); T/n Blanche Kayveas & Co

PENGHAKIMAN
Abdul Hamid Mohamad HMR:
Rayuan ini telah ditetapkan untuk didengar pada 27 Januari 2003. Sebelum tarikh itu, perayu telah memfailkan notis pemberhentian bertarikh 24 Januari 2003 yang berbunyi:
AMBIL PERHATIAN bahawa Perayu sama sekali memberhentikan Rayuan ini tanpa kos dan deposit dibayar kepada Responden.
Notis itu ditandatangani oleh perayu dan difailkan olehnya sendiri.
Bersama-sama notis pemberhentian itu, perayu juga memfailkan notis niat pihak untuk bertindak secara sendiri sebagai ganti peguamcara. Notis itu berbunyi:
AMBIL PERHATIAN bahawa saya, P.V. DAS Perayu berniat hendak bertindak secara sendiri dalam tindakan ini sebagai menggantikan TETUAN RUGBER SINGH & PARTNERS dan bahawa alamat saya untuk penyampaian ialah 64A,Taman Woon, Batu 1 1/2, Jalan Seremban, 73000 Tampin, Negeri Sembilan Darul Khusus.
Notis itu juga bertarikh 24 Januari 2003, ditandatangani dan difailkan oleh perayu sendiri. Satu salinan juga diberikan kepada peguam responden.
Pada 27 Januari 2003 apabila rayuan itu dipanggil, Encik Manian K. Marappan memaklumkan mahkamah bahawa beliau mewakili perayu dan perayu mempertikaikan notis-notis yang difailnya yang disebut sebelum ini.
Mahkamah bertanya kepada Encik Manian dan perayu sendiri sama ada perayu menafikan bahawa dia menandatangani notis-notis itu dan memfailnya. Jawapan yang diberi ialah “Tidak”.
Mahkamah mengambil pendirian bahawa perayu berhak untuk melepaskan peguamnya dan bertindak sendiri dan selepas itu melantik peguam baru untuk mewakilinya. Tetapi, mengenai notis pemberhentian apabila notis itu difailkan di mahkamah, maka dari saat itu rayuan itu disifatkan sebagai telah dibuang (dismissed) oleh mahkamah. Ini diperuntukkan dengan jelas oleh k. 73, Kaedah-kaedah Mahkamah Rayuan 1994:
73(1) Where an appellant, at any time before the commencement of the hearing, wishes to withdraw or discontinue his appeal, he may do so without the leave of the Court by filing in duplicate with the Registrar of the Court a notice in Form 11 in the First Schedule. A copy of the Notice shall be sent to the Registrar of the High Court.
(2) Upon the filing as aforesaid of such notice the appeal shall be deemed to have been dismissed by the Court.
Ertinya mulai saat itu, rayuan itu sudah tidak wujud lagi. Tidak ada apa-apa perintah pembatalan yang perlu dibuat oleh mahkamah untuk membatalkan rayuan itu atau menghapusnya dari senarai. Kesannya, pada 27 Januari 2003 itu, apabila rayuan itu dipanggil, sebenarnya rayuan itu sudah tidak wujud lagi. Maka tidak ada keperluan untuk mahkamah mendengarnya lagi, malah mahkamah tidak boleh mendengar suatu rayuan yang sudah tidak wujud lagi. Tetapi, jika perayu hendak memfailkan permohonan untuk mengenepikan notis pemberhentian itu, itu soal lain dan terserahlah kepadanya untuk membuatnya, jika dia hendak membuatnya. Perkara yang disebut terakhir ini diberitahu oleh mahkamah kepada peguam baru perayu dan perayu.

EXPERT CONSULTATION “TOWARDS THE PROMULGATION OF A MORE COMPREHENSIVE ISLAMIC BUSINESS AND BANKING LAWS IN MALAYSIA”

Judges usually speak in the past tense. They decide on facts that had happened months or years earlier, applying law that may have been in existence for decades or centuries. (Of course, in doing so they interpret and, to a limited extent, develop it.) So, they may not be the best persons to talk about the future. However the future depends on the past and the present. In that sense, they may be useful to tell of the present so that the future may be chartered.

That is what I am going to do: talk of the present. Then, I shall take a look at the future, in particular, regarding the problems that may arise and the way to solve them, so that if and when the problems arise, we are prepared.

Islamic business and Islamic finance

What is “Islamic finance” in this country is quite easy to identify. To identify “Islamic business” is more difficult.

If by “Islamic business” we mean contractual transactions carried out in accordance with Islamic law, the applicable law being Islamic law, then, if we exclude Islamic banking and takaful from it, there may be none. Contracts are governed by the Contracts Act 1950, the Sale of Goods Act 1957 and so on. In such cases, it is those Acts and the common law that apply. And, of course, the forum is the civil court.

But, I think I must repeat what I had said earlier. First, please do not make the common mistake of drawing a dividing line between what is normally called “civil law” and “Islamic law’: that everything that is called “Islamic law” is 100% God-made law and there are no non-prophet human opinions in it.

Secondly, please do not think that what is called “civil law” is 100% different from what is called “Islamic law”. Those who have studied the two would have found similarities in a great majority of the principles of the two laws. Quite often, it is only the dressing that distinguishes the two, not the substance. At times, in practice, the difference between a so-called “Islamic transaction” and a “conventional transaction” is just the use of a different form!

Coming now to “Islamic finance”. This covers mainly Islamic banking an capital market matters such as bond issues. Of course, takaful must be added to it.

When we talk about cases, meaning cases filed in court arising from Islamic finance transactions, if we exclude cases arising from Islamic banking and takaful transactions, there is hardly any.  (Of course I do not mention inheritance, waqf and apostasy because I do not think they can be considered as a “business”).

So, the net result is that, when we talk about “Islamic finance cases” we are actually talking about cases arising from Islamic banking transactions. Of course it would not be right if we do not include cases arising from takaful insurance policies.

Are there cases arising from Islamic banking in the civil courts? The answer is: “Yes”. A study done shows that as at 31.12.2001 there were 6,074 cases filed in the subordinate courts (Magistrate Courts and Sessions Courts) with a total value of RM148,804,607.73 and 2,567 cases filed in the High Courts with a total value of RM673,572,555.33.

What type of cases are these? Most of them are applications for order for sale under the National land Code, suits for recovery of money which in conventional a banking transaction is called “loan” but in Islamic banking is called the “purchase price” or “sale price” depending on from whose angle you are looking, the “vendor” (lender) or the “purchaser” (borrower). The others are civil claims for the same and for removal of caveats.

In all these cases, there are no issues of Islamic law involved. That is because contracts documents are drafted by advocates and solicitors, trained in civil law, in accordance with the requirements of civil law, using civil law precedents plus and minus a few clauses to make them “Islamic”. Charges are governed by the provisions of the National Land Code. The remedies are provided by the National Land Code. The procedure is provided by the Rules of the High Court 1980. If companies are involved, the relevant law is the Companies’ Act 1965.The pleadings are drafted and the trials or hearings are conducted by advocates and solicitors of the civil courts.

You will be surprised if I were to tell you, and I do so now, that so far there has not a been a single occasion when the court has to decide a point of Islamic law in such cases. Perhaps, I should mention a few reported cases arising from Islamic banking. In Tinta Press Sd. Bhd. v. Bank Islam Malaysia (1987) 2 M.L.J. 192 (Supreme Court) the issue was whether the High Court was right in issuing a mandatory injunction, a common law remedy. Bank Islam Malaysia Berhad v.Adnan bin Omar (1994) 3 C.L.J. 735 (High Court) was an application for an order for sale under the National Land Code. The issue taken was that the provisions of Order 83 rule 3(3) and rule 3(7) of the Rules of the High Court 1980 were not complied. In Dato’ Nik Mahmud bin Daud v. Bank Islam Malaysia Berhad (1996) 4 M.L.J. 295 (High Court) the order prayed for was that the charge and the sale and purchase agreements were void on the ground that they contravened the provisions of Kelantan Malay Reserve Enactment 1930. It should be noted that in that case, at first, another ground was raised i.e. the Bank Islam was prohibited from taking a charge in a transaction based on ‘riba’ and therefore, the charge was ultra vires the Articles of Association of the bank. That would have raised an “Islamic law” issue. But, fortunately for the Judge that argument was abandoned! The latest case, of course, is the judgment of the Court of Appeal in Bank Kerjasama Rakyat Malaysia Berhad v. Emcee Corporation Sdn. Bhd. (Court of Appeal, Appeal No. N-02-421-1999), delivered on 29.1.03. There again it was an application for an order for sale under the National Land Code arising from a transaction under the Al-Bai Bithaman Ajil. The issue was whether there was a “cause to the contrary” as provided by section 256 of the National Land Code. This is what I said, delivering the judgment of the Court:

“As was mentioned at the beginning of this judgment the facility is an Islamic banking facility. But that does not mean that the law applicable in this application is different from the law that is applicable if the facility were given under conventional banking. The charge is a charge under the National Land Code. The remedy available and sought is a remedy provided by the National Land Code. The procedure is provided by the Rules of the High Court 1980. The court adjudicating it is the High Court. So, it is the same law that is applicable, the same order that would be made, if made, and the same principles that will be applied in deciding the application.”

I do not say that we are right even though we believe we are. But, I do say that, as at today, that is the law. As Tun Suffian once said, “ If I make a mistake, it becomes law.”

So we see that in none of the reported cases so far the civil court had to decide on shari’a issues, although it came very close to it in one.

Is that strange? To me, the answer is: “No”. This is because, in addition to what I have said earlier, what is now called “Islamic banking transaction” or “product” is not something created and developed by the traditional Islamic scholars of past centuries. It is not even created and developed by present day “ulamas”(Muslim scholars). They are created and developed by conventional economists, bankers, accountants and lawyers who either themselves know Islamic law or in consultation with the Islamic scholars, only to get an opinion whether a particular transaction or product is contrary to Islamic law.

Secondly, as has been pointed out, the law applicable is civil law. Until today we do not have Islamic Contracts Act, Islamic Sale of Goods Act, Islamic Land Code, Islamic Companies Act and so on, even though, I am convinced that, based on the experience so far, if and when they are made, they are not going to be very different from what we now have, except for the name and a few provisions. So, if we look at the substance, our existing so-called civil law, is actually at least 80-90 percent Islamic already. Unfortunately, in this country, in matters of religion, form seems to be more important than substance!

Thirdly, all these Acts of Parliament are Federal Laws and are within the jurisdiction of the civil courts to administer.

Should the jurisdiction over Islamic banking cases be transferred to the Shari’a Courts?

At times, we do hear such a suggestion. At the risk of being accused of being biased (since I come from the civil court), with respect, such suggestion is made on the wrong assumption that since the cases are Islamic banking cases, the issues to be determined by the courts are Islamic law issues.

In my view, there should not be a transfer of jurisdiction from the civil courts to the shari’a courts in such matters. My reasons are:

First, it would be unconstitutional as the subject falls under the Federal List.

Secondly, as we have seen, of the cases that have arisen so far, not a single case involves the determination of question of Islamic law. On the other hand, they involve issues of land law, company law and others regarding which the shari’a courts have no jurisdiction and the shari’a court judges are not trained in and are not familiar with. The shari’a court judges do not even have precedents to fall back on.

Thirdly, the cases do not only involve Muslims and the shari’a courts do not have jurisdiction over non-Muslims. Neither can non-Muslim lawyers appear in the shari’a courts.

Fourthly, the shari’a courts are state courts, independent of each other and with their own appellate courts. Whereas, the civil courts have only one Court of Appeal and one Federal Court, there are 14 Shari’a Courts of Appeals in the country. Imagine the confusion in the law when the Shari’a Courts of Appeals give contradictory judgments. This is further compounded by the view that the doctrine of stare decisis (binding precedents) do not apply in the shari’a courts as no such principles are to be found in the shari’a, which view, with respect, to me, is not a well-reasoned opinion. Even in making laws we will have the problem of inconsistencies as between states. Even in matters of family law we already have such problems.

Fifthly, with respect, I doubt whether the shari’a courts, as they are now, are capable of handling all those cases. In some states the Shari’a Courts of Appeal have not sat for a number of years, just to give one illustration.

Sixthly, the remedies available in the shari’a courts are very limited. Remedies such as injunction, specific performance and, declaration, for example, are not available.

Seventhly, the problem of enforcement. Winding-up and bankruptcy proceedings, to give only two examples, are not available in the shari’a courts. Reciprocal enforcement of judgments in foreign countries is not available. Even inter-state enforcement is full of problems.

Determination of Islamic law issues arising from civil courts

It is better to be prepared in case the necessity arises. I shall now discuss some forum where such issues may be determined.

1. Civil courts.

While I do say that, as it is now, the civil courts clearly have an advantage over the shari’a courts, that civil court judges are in a better position to understand banking transactions, I do not say that the civil courts are equipped to decide Islamic law issues arising from Islamic banking. That is because the civil court judges are not trained in Islamic law and not in a position to ascertain the law.

1. Civil courts assisted by Islamic law advisers

Under this arrangement, a civil court is assisted by an Islamic scholar well versed in Islamic banking who I shall call “Islamic law adviser”. The civil court judge decides the facts, poses the Islamic law issue to the Islamic law adviser for his ruling, the ruling is binding on the judge, the judge applies the ruling and decides the case. That looks workable. Even now we have “assessors” in land acquisition cases. One plus point in such an arrangement is that it is the same courts in which those issues arise that determine the issues and decide the cases, while the advantages that the civil courts have over the shari’a courts are preserved.

1. Shari’a courts

All the weaknesses of the shari’a courts mentioned earlier are also relevant here. In addition, with respect, I doubt whether, generally speaking, the judges of the shari’a courts are well versed in Islamic baking. True that they know Arabic. But to know a language does not mean that a person will know every subject written in that language. Bearing in mind that Islamic banking is a modern creation using conventional precedents, I believe there is more literature on it in English than in Arabic. True that they are trained in the shari’ah, but how many of them are trained in Islamic banking as is practised today? And, as this is a new subject, there are no precedents for them to go by. The difficulty is not to find the relevant Hadiths or authorities, if any, on a subject but to understand the nature of the transactions or products, before applying the law.

1. Fatwa Committees of the Religious Councils in the States.

I do not think that they are the proper forums. My reasons are:

First, the multiplicity of such committees, one in each state, will give rise to conflicting rulings on similar issues.

Secondly, the committees are committees of the Religious Councils of the respective states. The Religious Council itself may be a party to a proceeding from which the issue arises. There may be a conflict of interest or that the transparency of the committee may be questionable.

Thirdly, with respect, it is doubtful whether the members of the committees have sufficient knowledge of conventional and modern Islamic banking and finance.

E.National Fatwa Committee.

As far as I know this is an ad hoc committee to which the Rulers Conference refers questions of Islamic law for its determination. Its members consist of all the muftis of all the states in the country. Even though the committee appears impressive in terms of the number of top Islamic scholars sitting in it, I do not think it is the best choice. My reasons are:

First, with respect, even though the muftis are well versed in Islamic law, they may not necessarily be familiar with modern Islamic banking and conventional banking, the knowledge of the latter is necessary to understand the former.

Knowing the law alone is no guarantee that a correct decision will be arrived at. Understanding the facts is equally important. Applying the correct law on wrongly perceived facts will give a wrong conclusion. I always give the Ruling of the Shari’a Committee of the Religious Council of the State of Penang as an example. That can be seen in the case of  G. Rethinasamy v. Majlis Ugama Islam Negeri Pulau Pinang (1993) 2 M.L.J. 166. In that case the Shari’a Committee ruled that part of the mosque and burial ground occupying on the land claimed by G. Rethinasamy to be his should be demolished and removed as it was occupying G. Rethinasamy’s land without his consent. The Shari’a Committee did not consider whether the land occupied by part of the mosque and the burial ground was waqf land. Of course, I refused to follow the fatwa as I found clear evidence that that part of the land was waqf land. That is an example where correct law was applied to a wrongly perceived fact leading to a wrong ruling. Of course, the problem may be overcome by inviting experts in conventional banking, civil law and others to advise the committee as and when required.

Secondly, the committee itself is too big and cumbersome. It would not be ideal and indeed costly for it to sit regularly and make expeditious decisions. Bear in mind that the cases are postponed pending the ruling of the issues by the committee.

1. National Shari’a Advisory Council (NSAC)

This committee at Bank Negara was formed in 1996. Its members consist of Islamic scholars, lawyers, bankers, academicians and Shari’a Judge. The original intention of forming this committee was to provide advice on Islamic law to conventional banks that operate Islamic banking business. All directions issued by Bank Negara in consultation with the council are binding on the banks. In fact, I am told that Bank Negara is currently in the process of enhancing the committee into a legally recognized authority regarding Islamic finance, Islamic banking and takaful. This includes reference by courts or arbitrators on Islamic law  issues relating to such businesses for rulings by the committee. Bank Negara may even establish a secretariat through which such references may be made.

As I see it, there are several advantages to refer such issues to this committee. First, the members are specialists in their respective fields relevant for the decisions to be made. If necessary, the membership may be enlarged.

Secondly, it is a “national” committee. So, the ruling on similar facts will be consistent.

Thirdly, since the introduction of Islamic banking in this country the committee has been advising Bank Negara on such issues. In other word, it has the experience.

Fourthly, the administrative support system is there, the Bank Negara itself.

What has to be done, perhaps, is to strengthen it by appointing or co-opting as and when necessary, members whose knowledge and experience are relevant to a decision to be made. If, the ruling is going to be made binding on the civil courts, perhaps a civil court judge should also be made a member. He has the practical experience of the nature of the cases before the courts in which those issues arise.

This committee should be the sole authority to decide on such issues. So banks, financial institutions and all other institutions, faced with such issues, should refer the issues to the committee, so that the rulings will be consistent on similar facts. References on questions of Islamic law in all federal laws yet to be made, should also required to be made to this committee.

Procedure for reference

I suggest that the following procedure be adopted. The Judge, at the case management stage, with the assistance of counsel for both parties, formulates the question to be referred for a ruling. The facts should be stated, followed by the issues and the question to be answered. Relevant documents may be enclosed. The committee will deliberate and make its ruling. In the meantime the proceedings in the court is adjourned. Upon receiving the ruling, the court will proceed with the hearing or trial. Applying the ruling on the question to be answered, the court decides the case. The ruling of the committee should be final and not subject to appeal.

Should the ruling be binding on the court?

In my view, the answer is: “Yes”. This is to ensure consistency and to avoid non-experts overruling such rulings. Otherwise, the whole purpose of referring the issue to the committee is defeated. There will be inconsistencies in the opinions on similar facts even though the doctrine of stare decisis may check such inconsistencies. Besides, it must be remembered that we are dealing with Islamic law, a religious law of the Muslims. It cannot be equated with a finding of negligence or assessment of damages. I do not think that the Muslim ummah can accept a ruling by a committee of experts on Islamic law being overturned by a civil court judge, what more if he is a non-Muslim.

Takaful cases

All that has been said above equally applies to takaful cases.

11.2.03.

BANK KERJASAMA RAKYAT MALAYSIABHD v. EMCEE CORPORATION SDN BHD
COURT OF APPEAL, KUALA LUMPUR
ABDUL HAMID MOHAMAD, JCA; RICHARD MALANJUM, JCA; ARIFFIN ZAKARIA, JCA
CIVIL APPEAL NO: N-02-421-1999
29 JANUARY 2003
[2003] 1 CLJ 625
BANKING: Charge – Order for sale – Loan facility granted under Islamic Banking principle – Whether Bank could enforce charge upon default in loan repayments – Whether remedy available under National Land Code and Rules of the High Court 1980

LAND LAW: Charge – Order for sale – Cause to the contrary – Whether established – Whether trial judge rightfully dismissed application for order for sale

The appellant had granted the respondent a loan facility of RM20 million under the Islamic banking principle of Al-Bai Bithaman Ajil. The respondent defaulted in the loan repayments and the appellant issued a Form 16D notice under the National Land Code. The respondent failed to comply with the notice and the appellant sought for an order for sale of the security charged under the loan facility. The High Court dismissed the application on the fact that the appellant had breached its agreement with the respondent to release an initial sum of RM5 million to the respondent. The appellant appealed to this court. The main issue was whether there was a failure by the appellant to release the amount of RM5 million to the respondent based on the agreements made between the parties so as to establish a “cause to the contrary” under s. 256(3) NLC to refuse an order for sale.
Held:
Per Abdul Hamid Mohamad JCA
[1] The facility given by the appellant to the respondent was an Islamic banking facility. But that did not mean that the law applicable in this application was different from the law applicable if the facility was given under conventional banking. The charge was a charge under the National Land Code. The remedy available and sought was a remedy provided by the National Land Code. The procedure is provided by the Code and by the Rules of the High Court 1980. The court adjudicating it was the High Court. Therefore, the same law was applicable, the same order that would be, if made, and the same principles that should be applied in deciding the application.
[2] The applicable law was s. 256 NLC. The leading case on the subject was Low Lee Lian v. Ban Hin Lee Bank Bhd and the issue was whether the alleged breach of contract by the appellant fell under one of the three categories of cases mentioned therein to establish “cause to the contrary” under s. 256(3).
[3] It was clear from the agreements made between the parties that the first instalment should be paid after the appellant released the facility to the Marginal Deposit Account. There was no dispute that the appellant had released RM4,345,831.05. Nowhere in the agreements was it provided that the first instalment would become due after RM5 million was released. Neither was the amount of first release mentioned or the phrase “first release” defined. That the instalment period began to run upon the first release being made was quite reasonable and it was beyond any doubt that there was a first release or releases. The instalments became payable and were paid partly. In the circumstances, the demand by the appellant could not be said to be premature.
[4] The validity of the charge was not in issue. The statutory procedural requirements had been complied with. There was nothing that brought the application within the three categories of cause to the contrary established in Low Lee Lian to warrant the refusal of the order for sale.
[Bahasa Malaysia Translation Of Headnotes
Perayu bank telah memberikan responden satu kemudahan pinjaman wang RM20 juta di bawah prinsip urusan bank Islam Al-Bai Bithaman Ajil. Responden memungkiri perjanjian berkenaan pembayaran ansuran pinjaman tersebut dan justerunya perayu mengeluarkan satu notis Borang 16D di bawah Kanun Tanah Negara (‘KTN’) terhadap responden. Responden gagal menepati notis tersebut dan perayu seterusnya memohon untuk satu perintah jualan sekuriti yang digadaikan di bawah kemudahan pinjaman wang tersebut. Mahkamah Tinggi menolak permohonan itu atas alasan bahawa perayu telah memungkiri perjanjian dengan responden untuk melepaskan jumlah wang (‘pelepasan pertama’) sebanyak RM5 juta terdahulu kepada responden seperti yang dijanjikan. Maka, rayuan perayu ini. Isu utama ialah sama ada perayu memang gagal untuk melepaskan jumlah wang sebanyak RM5 juta kepada responden berdasarkan perjanjian-perjanjian yang dibuat di antara mereka dan sama ada ianya merupakan satu “cause to the contrary”, iaitu, sebab-sebab sebaliknya bagi menolak permohonan perayu untuk perintah jualan di bawah s. 256(3) KTN.
Diputuskan:
Oleh Abdul Hamid Mohamad HMR
[1] Kemudahan yang diberikan oleh perayu kepada responden adalah satu kemudahan di bawah urusan bank Islam. Tetapi ini tidak bermakna bahawa undang-undang yang terpakai dalam permohonan ini berbeza daripada undang-undang yang terpakai jika kemudahan tersebut telah diberikan di bawah urusan bank biasa. Gadaian tersebut adalah satu gadaian di bawah KTN. Remedi yang tersedia dan yang dipohon ditetapkan di bawah KTN. Prosedur yang patut diikuti ditetapkan di bawah KTN dan Kaedah-kaedah Mahkamah Tinggi 1980. Mahkamah yang membicarakannya adalah Mahkamah Tinggi. Dengan itu, undang-undang sama terpakai, perintah sama yang akan dibuat dan prinsip-prinsip sama patut terpakai dalam memutuskan permohonan tersebut.
[2] Undang-undang terpakai adalah s. 256 KTN. Kes penting berkenaannya adalah Low Lee Lian v. Ban Hin Lee Bank Bhd dan isunya adalah sama ada mungkir kontrak perayu jatuh di bawah salah satu kategori kes-kes yang dibentangkan dalam kes tersebut untuk merupakan satu “cause to the contrary” di bawah s. 256(3).
[3] Adalah jelas daripada perjanjian-perjanjian di antara perayu dengan responden bahawa ansuran pertama patut dibayar oleh responden selepas perayu melepaskan kemudahan tersebut ke akaun deposit margin. Tidak dipertikaikan bahawa perayu telah pun melepaskan RM4,345,831.05. Tiada apa pun dalam perjanjian-perjanjian yang menetapkan bahawa ansuran pertama patut dibayar hanya selepas RM5 juta dilepaskan. Juga amaun untuk dilepaskan tidak disebutkan dan tiadanya definasi frasa “first release”. Bahawa masa untuk membuat pembayaran ansuran mula berjalan selepas amaun pertama dilepaskan adalah wajar dan tidak diragui bahawa terdapatnya pelepasan pertama atau pelepasan-pelepasan wang. Ansuran-ansuran pembayaran sepatutnya dibuat dan telah pun dibayar sebahagiannya. Dalam keadaan ini, tuntutan perayu tidak boleh dikatakan pramasa.
[4] Keesahan gadaian tersebut bukanlah satu isu. Keperluan prosedur statutori telah dipatuhi. Tiada apapun yang membawa permohonan untuk perintah jualan tersebut di bawah salah satu kategori kes-kes “cause to the contrary” yang dibentangkan oleh Low Lee Lian untuk menolak permohonan untuk perintah jualan.
Rayuan dibenarkan dengan kos; deposit dikembalikan kepada perayu.]
Reported by Usha Thiagarajah

Case(s) referred to:
Low Lee Lian v. Ban Hin Lee Bank Bhd [1997] 2 CLJ 36 FC (refd)

Legislation referred to:
National Land Code, s. 256(1)
Counsel:
For the appellant – Arshad Ismail (Lucy Tan); M/s Mohamed Ismail & Co
For the respondent – Kevin Danker (Peter Skelchy); M/s Danker & Co

JUDGMENT
Abdul Hamid Mohamad JCA:
The appellant (plaintiff in the court below) granted the respondent (defendant in the court below) a facility of RM20 million under the Islamic banking principle of Al-Bai Bithaman Ajil. Both parties executed two agreements on the same date ie, 2 May 1996. The first is the property purchase agreement (“the first agreement”). Under that agreement the respondent sold 22 pieces of land to the appellant for RM20 million. The second agreement is the property sale agreement. By that agreement the appellant sold to the respondent the same properties upon deferred payment terms. Clause 3.1 provides for 36 monthly instalments totaling RM23,571,864.
As a security for the repayment of the sale price of RM23,571,864 under the second agreement, the respondent, on 2 May 1996, charged to the appellant 15 pieces of the land under the National Land Code 1965.
The respondent failed to pay the instalments under the second agreement. The appellant issued a form 16D notice under the National Land Code 1965 against the respondent. The respondent having failed to comply with the form 16D notice, the appellant filed an originating summons against the respondent for an order for sale under s. 256 of the National Land Code 1965.
Prior to the issuance of the form 16D notice, the respondent had made some payments to the appellant under the second agreement and the total amount paid was RM167,393. 86.
The learned judge dismissed the application. The appellant appealed to this court.
Judgment Of The High Court
The judgment is a one-and-a-half-page judgment. The learned judge noted, inter alia, that:
(a)the appellant failed to pay a portion of the instalments due of RM2,556,001.28 as on 11 February 1998;
(b)the respondent did not claim the whole of the purchase price because the respondent had only utilised the facility up to RM4,934,220.48, leaving a balance of RM15,654,168.50 unused.
The learned judge dismissed the application for an order for sale. The learned judge’s grounds are as follows:
Saya tolak permohonan plaintif kerana plaintif mungkir janji tidak dapat memenuhi komitmennya untuk membayar RM5 juta kepada defendan dari akaun margin dan kemungkinan itu menjadi punca defendan ketiadaan modal kerja dan ini menyebabkan projek menjadi terbengkalai. Plaintif mengakui tidak menunaikan notis drawdown bertarikh 3.6.96 untuk jumlah RM3,000,000 tetapi dikatakan defendan belum menepati syarat. Saya puashati plaintif gagal membayar wang yang kena dibayar pada masa defendan memerlukannya. Maka saya tolak permohonan plaintif dengan kos.
The Law
As was mentioned at the beginning of this judgment the facility is an Islamic banking facility. But that does not mean that the law applicable in this application is different from the law that is applicable if the facility were given under conventional banking. The charge is a charge under the National Land Code. The remedy available and sought is a remedy provided by the National Land Code. The procedure is provided by the Code and the Rules of the High Court 1980. The court adjudicating it is the High Court. So, it is the same law that is applicable, the same order that would be, if made, and the same principles that should be applied in deciding the application.
The main source of the applicable law is s. 256 of the National Land Code:
256(1) This section applies to land held under:
(a)registry title;
(b)the form of qualified title corresponding to registry title: or
(c)subsidiary title,
and to the whole of any divided share in, or any lease of, any such land.
(2) Any application for an order for sale under this Chapter by a chargee of any such land or lease shall be made to the court in accordance with the provisions in that behalf of any law for the time being in force relating to civil procedure.
(3)On any such application, the court shall order the sale of the land or lease to which the charge relates unless it is satisfied of the existence of cause to the contrary.
The leading case on the subject is Low Lee Lian v. Ban Hin Lee Bank Bhd. [1997] 2 CLJ 36 (FC). In opposing an application for an order for sale under the same section, it was inter alia argued that: (a) the bank had varied the rate of interest without giving any notice of the same to appellant; and (b) the bank had, without the appellant’s knowledge permitted the third party to breach the terms of the agreement between them:
Held, dismissing the appeal:
(1)’Cause to the contrary’ within s. 256(3) of the Code might be established only in three categories of cases: (i) when a chargor was able to bring his case within any of the exceptions to the indefeasibility doctrine in s. 340 of the Code; (ii) when a chargor could demonstrate that the chargee had failed to meet the conditions precedent for the making of an application for an order for sale; and (iii) when a chargor could demonstrate that the grant of an order for sale would be contrary to some rule of law or equity. If no cause to the contrary could be shown, the court would be obliged to make an order for sale (see pp. 82F-G, 83F and 83H-I); Murugappa Chettiar v. Letchumanan Chettiar [1939] MLJ 296 and Keng Soon Finance Bhd. v. MK Retnam Holdings Sdn. Bhd & Anor [1989] 1 MLJ 457 followed.
(2)In the instant case, it was not sufficient to allege mere breaches by the bank of the loan agreement between the bank and the third party or even of the terms of the annexure to the charge in order to resist the application under s. 256(3) of the Code. The allegation that the bank acted in breach of contract, while it might give rise to an independent action in personam, was insufficient per se to defeat the ad rem rights of the bank under its registered charge to an order for sale. It was clear that the appellant had failed to meet the requisite legal test of what amounted to a cause to the contrary. The judge therefore correctly made the order for sale (see pp. 87H and 89C).
So, the issue is whether the alleged breach falls under one of the three categories mentioned in Low Lee Lian.
We shall now look at the charge and the annexture thereto. Clause 1 (Security) of the annexture, inter alia, provides:
1. The said Land together with the buildings erected or to be erected thereon is hereby charged to the Bank with the payment on demand of the sum of… (RM23,571,864.00)….
Clause 2 (Covenant) provides:
2. Without prejudice to the right of the Bank to require full payment on demand, the chargor will pay to the Bank the indebtedness at the times and in the manner set out in the Security Documents.
Clauses 6 (Default) and 7 (Event of Default) provide, respectively:
6. In the event an Event of Default set out in Clause 6.1 of the Property Sale Agreement (hereinafter referred to as “Event of Default”) occurs, then and in any of such cases the Bank may declare that an Event of Default has occurred and simultaneously or at any time thereafter, irrespective of whether such event mentioned herein is continuing the Bank may at its absolute discretion by written notice to the Chargor declare the Indebtedness immediately due and payable.
7. In the event of the occurrence of any Event of Default (including default in the agreement or covenant to pay the sum for the time being owing to the Bank on demand as aforesaid) occurring and continuing for a period of not less than seven (7) days it shall be lawful for the Bank forthwith to give the statutory notice pursuant to the provisions of the National Land Code requiring the Chargor to remedy the said breach within a period of not less than seven (7) days and service of such notice may be effected as may be prescribed in the National Land Code.
Clause 6.1 of the second agreement provides a list of “Events of Default”, the relevant one being para. (a):
(a)if the customer defaults in the payment of any one or more of the instalments of the Sale Price set out in Clause 3.1 (a) hereof or the redemption sums referred to in Clause 3.1(b) hereof or any other monies whatsoever herein or in any of the other Security Documents agreed to be paid; or
This clause, in turn, refers to cl. 3.1:
3.1 Payment of Sale Price
The Customer shall settle the Sale Price to the Bank within a period of thirty six (36) months from the date of the first release of the Facility by the Bank pursuant to the Property Purchase Agreement (hereinafter referred to as “the Payment Period”) by the two following modes whichever shall be earlier:
(a)by thirty six (36) monthly instalments as follows:
MonthAmount per Instalment Total
(RM) (RM)
1st to 9th 91,666.67 825,000.03
10th to 35th842,476.4421,904,387.44
36th842,476.53 842,476.53
____________
23,571,864.00
===========
and the first of such instalments shall be paid on the first day of the month next following the month in which the Bank releases the Facility to the Marginal Deposit Account pursuant to Clause 3.1 of the Property Purchase Agreement and the subsequent instalments shall be paid at monthly intervals thereafter (hereinafter collectively referred to as “the Payment Dates”) PROVIDED that the Bank may at its absolute discretion extend any of the Payment Dates upon such terms and subject to such conditions as it deems fit; and
This cl. (3.1 of the second agreement) refers to cl. 3.1 of the first agreement. This clause contains a list of conditions precedent for the release of the facility to marginal deposit account and previous financier. The appellant is obliged to release the facility to the marginal deposit account only upon the fulfilment to the satisfaction of the bank of the conditions precedent. Among them are:
(n) no event of default shall have occurred.
(p) such other conditions as may be imposed by the Bank at its absolute discretion.
That clause ends with the words:
Forthwith upon releasing the Facility to the Marginal Deposit Account the Bank shall release the Redemption Sum to the Previous Financier and the difference if any between Ringgit Malaysia Five Million (RM5,000,000.00) and the Redemption Sum (hereinafter referred to as “the said Difference”) to the Customer.
It is clear that the first instalment shall be paid after the appellant bank releases the facility to the marginal deposit account. There is no dispute that the Appellant bank had released RM4,345,831.05. But, the respondent says that only after RM5,000,000 is released that the first instalment becomes due. Where is that provided for? The only place the figure RM5,000,000 appears is at the end of cl. 3.1 of the first agreement. That too is only when it is talking about the release of the Redemption Sum to the previous financier and the difference between RM5,000,000 and the redemption sum to the respondent. Indeed that paragraph beginning with “Forthwith….” seems to appear out of nowhere, as if something else before it is missing. But both parties rely on the same document. We accept it as it is.
Clause 3.1 of the second agreement talks about the first release of the facility but nothing is mentioned about the amount of first release. “First release” is not defined either. But, it says that upon the first release being made the instalment period begins to run. That is quite reasonable.
That there was a “first release” or “releases” is beyond any doubt. The instalments became payable and were paid partly. In the circumstances the demand cannot be said to be premature. Therefore it cannot be a cause to the contrary.
We also note that that the validity of the charge is not in issue. The statutory procedural requirements have been complied with. There is nothing that brings it within the three categories of cause to the contrary established in Low Lee Lian. In the circumstances, we are of the view that the respondent has failed to show a cause to the contrary that warrants the refusal of the order for sale. We would therefore allow the appeal with costs and order that the deposit be refunded to the appellant.

FEDERAL COURT, KUALA LUMPUR
STEVE SHIM, CJ (SABAH & SARAWAK); ABDUL MALEK AHMAD, FCJ; ABDUL HAMID MOHAMAD, JCA
CIVIL APPEAL NO: 02-6-2001(W)
[2003] 1 CLJ 61

CIVIL PROCEDURE: Appeal – Appeal to Federal Court – Appellate jurisdiction – Appeal for leave granted – Whether question posed fell outside of ambit of issues raised in courts below – Whether court seised with jurisdiction to grant leave to hear appeal – Courts of Judicature Act 1964, s. 96(a)

The plaintiffs had commenced an action, seeking damages for libel and slander, against the defendant in relation to an article published in a magazine. Before the trial commenced, the defendant applied to the trial judge to amend his defence on three occasions but these were refused on the ground of delay. After the third attempt failed, the defendant appealed to the Court of Appeal which however upheld the trial judge’s decision and stated that the application lacked bona fides. The defendant proceeded to seek leave from the Federal Court to appeal thereto. The Federal Court granted the defendant’s application and it sought to consider the proper test the court should apply in defamation cases where application for amendments were made to include a plea of justification in the defence when the evidence relating to the particulars were discovered after the pleadings were closed.
Before the appeal was heard, the plaintiffs raised the following preliminary objections:
i) the question/issue for which leave was granted was not one that arose or was decided by the High Court in the exercise of its original jurisdiction and/or by the Court of Appeal;
ii) consequently, the Federal Court did not have the jurisdiction to grant leave. Accordingly, the leave granted should be withdrawn/set aside and/or the aforesaid appeal should be dismissed;
iii) the question for which leave was granted was hypothetical and/or academic; and
iv) consequently, the Federal Court should decline to answer the question and the aforesaid appeal ought to be dismissed.
Held:
Per Abdul Hamid Mohamad JCA (majority)
[1] Generally, where the Federal Court has granted leave to appeal, it is not open to the party to re-litigate this issue. It is res judicata. In the interest of consistency, a new panel of this court should not be reversing the decision of the earlier panel of the same court. However, where the granting of the leave is challenged on the ground of lack of jurisdiction, then this may still be challenged even at the hearing of the appeal.
[2] The defendant’s main purpose to amend his defence was to separate the roll-up plea of justification and fair comment. The question posed by the Federal Court did not reflect the issues discussed by the High Court and the Court of Appeal in dismissing the defendant’s application to amend his defence. Instead, it related to the test applicable where evidence relating to the particulars were discovered after the pleadings were closed. Based on the Federal Court’s decision in The Minister for Human Resources, this court should decline to answer the question posed.
[3] The question posed did not relate to the facts of the case and was therefore rendered academic. Based on the defendant’s own affidavit, it was clear that the particulars were not discovered after the pleadings were closed.
[4] The defendant did not come to this court to know what the law is in this country on a hypothetical issue. He sought for the proposed amendments to be admitted. However, this court would not be able to grant the order sought by the defendant as the facts of the case were materially different from the facts that formed the basis of the answer to the posed question.
[Preliminary objection allowed; appeal dismissed with costs.]
[Bahasa Malaysia Translation Of Headnotes
Pihak plaintif telah memulakan suatu tindakan, bagi mendapatkan pampasan untuk libel dan slander, terhadap defendan berkenaan suatu artikel yang telah diterbitkan dalam suatu majalah. Sebelum perbicaraan dimulakan, defendan telah memohon tiga kali kepada hakim perbicaraan untuk membuat pindaan kepada penyata pembelaannya tetapi ianya telah ditolak atas alasan kelengahan. Selepas percubaan ketiganya gagal, defendan telah membuat rayuan ke Mahkamah Rayuan yang sebaliknya telah mengesahkan keputusan hakim perbicaraan dan menyatakan bahawa permohonan tersebut berkurangan bona fides. Defendan menuju ke Mahkamah Persekutuan untuk mendapatkan kebenaran merayu kepadanya. Mahkamah Persekutuan telah membenarkan permohonan defendan dan ia mengimbang ujian yang patut dipakai oleh mahkamah dalam kes-kes fitnah di mana permohonan untuk pindaan dibuat untuk suatu akuan justifikasi dalam pembelaan bilamana bukti berkenaan dengan butir-butir ditemui selepas pliding ditutup.
Sebelum rayuan tersebut dibicarakan, pihak plaintif telah mengutarakan bantahan-bantahan awal berkenaan:
i) soalan/isu dimana kebenaran diberikan adalah bukan suatu yang timbul atau telah diputuskan oleh Mahkamah Tinggi dalam menjalankan bidangkuasa asalnya dan/atau oleh Mahkamah Rayuan;
ii) oleh yang demikian, Mahkamah Persekutuan tidak mempunyai bidangkuasa untuk memberi kebenaran. Berikutan ini, kebenaran yang diberikan patut ditarikbalik/diketepikan dan/atau rayuan yang dimaksudkan sebelum ini harus ditolak;
iii) soalan yang mana kebenaran diberikan adalah andaian dan/atau akademik; dan
iv) oleh yang demikian, Mahkamah Persekutuan harus menolak untuk menjawab soalan tersebut dan rayuan yang dimaksudkan sebelum ini harus ditolak.
Diputuskan:
[Bantahan awal ditolak; rayuan dibenarkan; defendan diarahkan membayar pihak plaintif kos atas pindaan.]
Oleh Abdul Hamid Mohamad HMR (majoriti)
[1] Pada amnya, dimana Mahkamah Persekutuan telah memberi kebenaran untuk membuat rayuan, ia tidak terbuka kepada suatu pihak untuk melitigasikan semula isu ini. Ia adalah res judicata. Dalam kepentingan ketekalan, suatu panel yang baru mahkamah ini tidak harus mengakaskan keputusan panel sebelum ini dari mahkamah yang sama. Akan tetapi, di mana pemberian kebenaran dicabar atas alasan kekurangan bidangkuasa, maka ini masih boleh dicabar walaupun pada masa rayuan ini dibicarakan.
[2] Tujuan utama defendan meminda pembelaannya adalah untuk mengasingkan akuan “roll-up” justifikasi dan komen berpatutan. Soalan yang ditimbulkan oleh Mahkamah Persekutuan tidak membayangkan isu- isu yang dibicarakan oleh Mahkamah Tinggi dan Mahkamah Rayuan dalam menolak permohonan meminda pembelaannya. Sebaliknya, ia bersangkut-paut dengan ujian yang terpakai di mana bukti berkenaan dengan butir-butir ditemui selepas pliding ditutup. Berdasarkan keputusan Mahkamah Persekutuan dalam The Minister for Human Resources, mahkamah ini seharusnya menolak menjawab soalan yang ditimbulkan.
[3] Soalan yang ditimbulkan tidak merujuk kepada fakta-fakta kes tersebut dan oleh itu menyebabkannya menjadi akademik. Berdasarkan kepada afidavit defendan sendiri, adalah jelas bahawa butir-butir tidak dizahirkan selepas pliding ditutup.
[4] Defendan tidak datang ke mahkamah ini untuk memaklumkan undang-undang di negara atas isu andaian. Beliau memohon untuk usul pindaannya diterima. Walau bagaimanapun, mahkamah ini tidak boleh membenarkan permohonan yang dikehendaki oleh defendan kerana terdapat perbezaan ketara antara fakta kes dengan fakta yang membentuk asas kepada soalan yang ditimbulkan.
Bantahan awal dibenarkan; rayuan ditolak dengan kos.]
[Appeal from Court of Appeal, Civil Suit No: W-02-720-1999]
Reported by M Maheswaran

Case(s) referred to:
Ainsbury v. Millington [1987] 1 All ER 929 (refd)
Associated Leisure Ltd & Ors v. Associated Newspapers Ltd [1970] 2 All ER 754 (refd)
Atkinson v. Fitzwalter & Ors [1987] 1 All ER 483 (refd)
Auto Dunia Sdn Bhd v. Wong Sai Fatt & Ors [1995] 3 CLJ 485 (refd)
Capital Insurance Bhd v. Aishah Abdul Manap & Anor [2000] 4 CLJ 1 (dist)
Christopher Neville Williams v. Mirror Group Newspapers (1986) Ltd (refd)
Kiam v. MGN Ltd (No 2) [2002] EWCA Civ 66 (refd)
Lam Kong Company Ltd v. Thong Guan Co Pte Ltd [2000] 4 CLJ 769 (dist)
Loknath Padhan v. Birendra Kumar Sahu [1974] AIR 505 (refd)
Lucas-Box v. News Group Newspaper Ltd; Same v. Associated Newspapers Group PLC & Ors [1986] 1 WLR 147 (refd)
Lownds v. Home Office [2002] EWCA Civ 365 (refd)
McDonald’s Corp & Anor v. Steel & Anor [1995] 3 All ER 615 (refd)
McPhilemy v. Times Newspapers Ltd & Ors [1999] 3 All ER 775 (refd)
Megat Najmuddin Dato Seri (Dr) Megat Khas v. Bank Bumiputra Malaysia Bhd [2002] 1 CLJ 645; [2002] CLJ JT(2) (dist)
Sun Life Assurance Company & Canada and Jervis (1994) The Law Reports Appeal Cases, p 111 (refd)
Sutherland & Ors v. Stopes [1925] AC 47 (refd)
Syed Kechik Syed Mohamed & Anor v. The Board of Trustees of the Sabah Foundation & Ors And Another Application [1999] 1 CLJ 325 (refd)
The Minister of Human Resources v. Thong Chin Yoong & Another Appeal [2001] 3 CLJ 933 (foll)
Yamaha Motor Co Ltd v. Yamaha Malaysia Sdn Bhd & Ors [1983] 1 CLJ 191; [1983] CLJ (Rep) 428 (refd)
Wright Norman & Anor v. Oversea-Chinese Banking Corp Ltd [1994] 1 SLR 513 (refd)

Legislation referred to:
Civil Law Act 1956, s. 3(1)
Courts of Judicature Act 1964, ss. 68(1)(a), 96(a)
Industrial Relations Act 1967, s. 20(3)
Rules of the Court of Appeal 1994, rr. 18(4)(d), (7)
Rules of the High Court 1980, O. 18 r. 20, O. 20 r. 5(5)

Counsel:
For the appellant – Geoffrey R Robertson (Dato’ Muhammad Shafee Abdullah, Leena Ghosh & Rishwant Singh); M/s Shafee & Co
For the respondents – V Sithambaram (Dato’ V Sivaparanjothi, R Thayalan & Wong Kee Them); M/s Siva & Partners

Case History:
High Court : [1999] 4 CLJ 784
Court Of Appeal : [2000] 4 CLJ 830

JUDGMENT
Abdul Hamid Mohamad JCA:
Background Of The Case
The appellant before this court was the appellant in the Court of Appeal (W-08-720-99) and the defendant in the High Court (S2-23-42-1996). The respondents (respondents in the Court of Appeal and the plaintiff in the High Court) had filed a suit against the appellant for damages for libel and slander arising from a publication in the International Commercial Litigation Magazine, November 1995 issue, entitled “Malaysian Justice on Trial.”
A brief chronology of the proceedings may be useful to get an overall picture of the case.
Writ and statement of claim was filed on 13 June 1996. On 9 September 1996 the appellant filed and served his defence. On 23 September 1996 the respondents filed and served their reply to the defence. In 1997, the respondents took out a summons for direction which was heard and disposed of by October 1997. On 19 March 1999, 20 May 1999 and 7 June 1999 learned counsel for both sides appeared before the learned judge for case management. Directions were given and the matter was fixed for trial starting from 1 September 1999.
On 14 August 1999 the appellant filed an application (the first application, encl. 23) to amend his defence. This application was subsequently withdrawn as it was not supported by an affidavit and also on the grounds that there were some additional minor amendments to be included. On 21 August 1999, a second application to amend the defence was filed (encl. 31A). It was fixed for hearing on 1 September 1999.
During this period the appellant had also made an application to disqualify the judge from hearing the suit. That application was dismissed by the learned judge on 30 August 1999.
On 1 September 1999 the appellant filed a summons in chambers to amend the prayers in encl. 31A. This was fixed for hearing on the same day as encl. 31A.
On 1 September 1999, the learned judge dismissed the summons in chambers. Learned counsel for the appellant then made an oral application similar to that contained in the summons in chambers that had been dismissed. This too was dismissed by the learned judge. Following that the learned judge dismissed the second application to amend the defence.
On 3 September 1999, the appellant filed a fresh summons in chambers (the third application, encl. 43) to amend the same defence. This happened three days before the trial was scheduled to begin. On 6 September 1999, the day the trial was to begin, learned counsel for the appellant made an application for an adjournment of the trial, one of the grounds for which was that encl. 43 should be determined before the trial commenced. The application was refused by the learned judge. The trial commenced and continued on the following day. On that day (7 September 1999), in the course of the cross-examination of the respondents’ third witness it became apparent to the court that it was necessary for the application for amendment (encl. 43) to be heard first. The learned judge fixed encl. 43 for hearing on the following day. So, on 8 September 1999 encl. 43 was heard and dismissed with costs. The appellant appealed to the Court of Appeal.
The Court of Appeal dismissed the appeal on 23 September 2000. On 28 March 2001, the Federal Court granted the appellant leave to appeal to this court. The court also gave leave to the appellant to file and serve a notice of appeal within seven days of the order and that all proceedings in the High Court action be stayed pending the hearing and final disposal of the appeal.
The appeal was fixed for hearing on 13 May 2002.
Notice Of Motion
On 9 March 2002, the respondents filed a notice of motion, praying for orders, inter alia, that the order of the Federal Court dated 28 March 2001 granting leave to the appellant to appeal to the Federal Court be set aside, that the said application for leave be reheard by a newly and differently constituted panel of the Federal Court.
However, on the day fixed for the hearing the notice of motion and the appeal (13 May 2002), the respondent withdrew the application. We allowed the application to withdraw the notice of motion. However, after hearing learned counsel for the appellant and the respondents we reserved our decision on the issue of costs.
On costs of the notice of motion, Dato’ V. Sivaparanjothi for the respondents informed the court that the respondents had, by a letter dated 7 May 2002 (six days before the date fixed for the hearing of the notice of motion) written to the registrar of the Federal Court, with a copy to the appellant’s solicitors, that the respondents were withdrawing the notice of motion. Learned counsel for the respondent submitted that the proper order for the court to make regarding costs is that the costs be taxed and paid to the appellant.
However, Dato’ Muhammad Shafee Abdullah, the learned counsel for the appellant asked the court to award costs on “indemnity basis”. He cited the case of Lownds v. Home Office [2002] EWCA Civ. 365. That is a decision of the Court of Appeal of England (Civil Division).
Another decision of the same court, Kiam v. MGN Ltd. (No. 2) [2002] EWCA Civ. 66; [2002] 2 All ER 242 was also referred to by the learned counsel.
It is very clear from the judgment of Woolf CJ (delivering the judgment of the court) in Lownds v. Home Office, that the judgment was based on the specific provision of the (English) Civil Procedure Rules 1998. As the judgment clearly says:
Part 44.4 provides for two basis of assessment. The first is the standard basis and the second is the indemnity basis.
The factors which the court may take into account when assessing costs on the standard basis and on the indemnity basis are specifically provided in Part 44.5.
As this court is not governed by those provisions in the (English) Civil Procedure Rules 1998, I do not think it is necessary to reproduce those provisions and discuss them in detail. All that need be said, perhaps, is the distinction between the two. In assessing costs on the standard basis only “costs which are proportionate” are allowed. On the other hand, when costs are assessed on an indemnity basis there is no requirement of proportionality.
It was not shown to us, neither could I find a similar provision in either the Rules of the Court of Appeal 1994 (RCA 1994) or the Rules of the High Court 1980 (RHC 1980).
In my view, this court is bound by the provisions of our own Rules and not that of any other country. It is a matter for the Rules Committee established under s. 17 of the Courts of Judicature Act 1964 whether or not to make such rules. It is not for this court to usurp the functions of the Committee.
Furthermore, this court too should be careful and slow to adopt the decisions of the courts in other countries, even on the basis that it forms parts of the common law of England, which on this point, it is not. Particular attention must be paid to the written law of this country. In other words, the provisions of s. 3(1) of the Civil Law Act 1956, must always be borne in mind.
In this case, applying the principles of taxation as embodied in our law, written and case law, the proper order that the court should make is that the costs arising from the filing the notice of motion by the respondents should be taxed as provided for under our Rules and paid to the appellants.
The Appeal
The Proposed Amendments
So as not to lose our focus, it is important to state briefly the proposed amendments and the grounds relied on by the appellant in support of the application.
First, the proposed amendments. It is too long to reproduce it in this judgment. However, basically, as stated in the appellant’s submissions, para. 18:
… the Appellant, would advance separate and district plea of justification and of fair comment in place of the “rolled-up plea”. As such, by the proposed amendment, the Appellant seeks to plead justification under “new” paragraph 15 and fair comment under “new” paragraph 16.”
In the new para. 15 which consists of 36 sub-paragraphs the appellant seeks to introduce particulars pertaining to the “Ayer Molek Case” and the “Vincent Tan” case.
In para. 16 which consists of 15 sub-paragraphs, the appellant seeks to introduce particulars pertaining to the “Wee Choo Keong” election petition; the contempt of court case against Wee Choo Keong by MBf Holdings Berhad and MBf Finance Berhad; particulars pertaining to the corruption charge against a former magistrate, Thavanathan; particulars pertaining to the failure to charge Tan Sri Abdul Rahim Thamby Chik (“Rahim”), the former Chief Minister of Malacca for having sex with an underaged girl and the fact that 15 other men were charged; particulars about the charges against Rahim for corruption that were subsequently withdrawn; particulars concerning the death of one Lee Quat Leong while under police detention in which, it was alleged, that “only 2 low ranking police officers were charged. Both police officers pleaded guilty and were given relatively light sentence”.
The affidavit in support of the application for amendment was filed by the appellant. Regarding the proposed amendment to para. 15 of the defence, the appellant explained:
Paragraph 15 under the proposed amendment to the Defence seeks to adumberate further particularisation in support of the justification meaning already present in the existing Defence. Furthermore, the proposed amendment also maintains separate defences of justification and fair comment instead of the rolled up plea forwarded in the existing Defence.
As such, the proposed amendments to the Defence merely provide further particularisation and clarity in comparison to the existing Defence filed and does not propose to alter the character of the suit nor incorporate new facts in any manner inconsistent with the thrust of the existing Defence. The detailed particularisation of the factual representations in relation to the Ayer Molek case (as it appears in paragraph 15.1 to 15.27 of the Proposed Amended Defence) have in actual fact already been pleaded by the defendant in a previous suit related to this present suit involving the same Plaintiffs (Suit No: S4-23-44-1996 Insas Bhd. & Anor. v. Tommy Thomas & Anor (hereinafter referred to as the “Previous Suit”)) and hence does not take the Plaintiffs by surprise for they are aware of such particulars. Moreover, all documents in relation to theAyer Molek case are already in contention since the Plaintiffs have made this an issue in this proceeding (as apparent in their alleged defamatory meaning attributable to the said words).
Regarding the delay in making the application, the appellant explained:
(b) The delay in making this application to amend the Defence is attributable to the need to make careful comparisons and confirmation of the copies of the documents (related to the evidence in relation to the defences justification and the plea of qualified privilege) to the original documents. For purposes of safe-keeping some of the copies of the documents were kept overseas making access more difficult and slow. The need to make careful assessment of these documents before considering them as evidence to the pleas stated are obvious as the defences already raised earlier, especially on justification are rather serious in the light of the controversy relating to the Judiciary. Leading cases on this issue have often reiterated the principle that a pleading must not put a plea of justification (or indeed the other related pleas) on record lightly or without careful consideration of the evidence available or likely to become available.
Moreover, there was also the need to confirm and confer some of these documents with the intended witnesses, who are in the country and abroad, confirmation of which has only recently been done as various Official and Non-Official Agencies are involved in certain on-going related investigations.
Yet again, I wish to stress that these are not fresh evidence but documentary evidence in support of what was already pleaded in the existing Defence. However, in order to plead a more detailed Defence, I had to have sight of the documents. The documents have been incorporated into a List of Documents and have filed in this Honourable Court. A copy of it has already been served on the Plaintiffs on 14.8.1999.
The Executive Director of the plaintiffs filed an affidavit in reply. I shall only reproduce those parts which are more relevant to this judgment.
8(k)… the proposed amendments to the Defence in fact leads to new issues being raised by the Defendant.
9…..
(a)there is an inordinate delay in making the said Application by the Defendant which causes serious prejudice and detriment to the Plaintiffs;
(b)the said Application for amendment is being made after the trial has commenced and the Plaintiffs’ third witness (myself) is under cross examination by the Defendant’s Counsel;
(c)the Defendant’s explanation that the delay is attributable to the need to make comparisons and confirmation of the copies of the document to the original documents are mere allegations not supported by evidence. In any event a Defendant does not take more than three (3) years just to compare and confirm documents;
(d)it also does not take more than three (3) years to compare and confirm documents just because they are alleged to be kept overseas unless the place in which the documents are kept is inaccessible by modern transportation;
(e)similarly it does not take a Defendant more than three (3) years to make assessment of documents. Further, there is no controversy relating to the judiciary as alleged by the Defendant in Paragraph 8(b) of the said Affidavit (page 9);
(f)it is true that it is a principle of law that a Defendant must not put a plea of justification on the record lightly or without careful consideration of the evidence available or likely to become available but that principle of law does not apply to the circumstances of our case;
(g)it also does not take more than three (3) years to confirm and confer documents with intended witnesses and the deponent of the said Affidavit had not disclosed the alleged “various Official and Non-Official Agencies” and the “certain on-going related investigations” as stated in Paragraph 8(b) of the said Affidavit (at page 9);
(h)further, the matters deposed to in Paragraph 8(b) of the said Affidavit are mere allegations not supported by evidence;
11….
(c) the alleged particulars the Defendant seek to include in the proposed Amended Defence are matters which allegedly took place in 1994 and 1995;
(d) therefore there is an inexcusable and inordinate delay on the part of the Defendant in filing the said Application. As stated in Paragraph 9 above, the purported reasons for the delay in filing the said application as stated in the said Affidavit are wholly misconceived and untenable in law. This is a clear tactical manoeuvre by the Defendant to delay and derail the trial of this action by filing an application at such a late stage of the proceedings to the serious detriment and prejudice of the Plaintiffs;
The Judgment Of The High Court
From the judgment of the learned High Court judge, it is clear that the learned judge dismissed the application because no exhibits were attached to the affidavit in support of the application. This is what the learned judge said:
To a question by the Court whether the defendant had attached any exhibits to his affidavit to back up his allegations, Encik Shafee’s response was there are no exhibits attached because there is no necessity…
To my mind the defendant has failed to show a basis to seek the amendment. Whilst affirming an affidavit he has totally failed to exhibit any documents that support his prayer for amendment. Without the exhibits how is the Court to know the basis of the defendants’ allegations. In his affidavit at para 2 the defendant has admitted having “records” to which he has access on which the affidavit was based. Where are those records? What are those records?… I hold the omission as deliberate because there are no such records or original records. If there were they would have been produced…
The second ground, which was dealt under “Merits” appears to have been summed up by the learned judge in the penultimate sentence of his grounds of judgment:
There is total lack of merit in this application which lacks bona fide.
Why was there “a total lack of merits”? This appears to relate to the statement by the appellant that he had to keep some of the documents overseas for safe keeping. The learned judge viewed such a suggestion as “tarnishing the image of this beautiful country. It suggests that nothing is safe, when such is totally false and a mischievous suggestion at that to make.”
The learned judge continued:
Assuming this is true, i.e. that some documents were kept overseas, what were they. This Court must be shown the documents and they must be identified to satisfy the Court that the contention of the defendant that it is unsafe to keep these documents in this country is true. No such affidavit evidence has been led. Mr. Raphael Pura’s allegation that it is not safe to keep documents in this country is a very serious accusation that must be met with the clearest evidence from him. Otherwise it could lead to a suggestion of mala fide on the part of the defendant.
Now asuming the documents were top secret material that had to be secreted overseas for safe-keeping then clearly on the defendant’s own admission such documents fall under the Official Secrets Act. No one can disclose these even in Court. So therefore any amendment sought that requires the admission of such documents will have no leg to stand on in any case.
On the other hand, if the said documents do not fall under the OSA then what is so secret about these documents that they could not be produced much earlier during the case management stage. In any case if the defendant feared for the safety of the original documents, all that is needed during the case management is to only tender photostat copies of such documents. The defendant could have given an undertaking to the Court to produce the originals at the trial. If there is a will, there is always a way.
In any case the defendant’s own contradictory affidavit in support of this application shows the total lack of merit in this application. The defendant has admitted that what is sought to be admitted is not fresh evidence and that they have been raised in an earlier suit. Whilst the defendant has not identified the suit, I am satisfied that the defendant is satisfied that the amendments sought have been already raised in another suit. If that be the case then the defendant’s earlier averment that he could not amend earlier because he had to interview the witness and compare documents and secrete the documents for safekeeping overseas are all untrue. There is total lack of merit in this application which lacks bona fide.
Those were the grounds on which the learned judge dismissed the application.
The Judgment Of The Court Of Appeal
It is important to note that before the appeal was heard by the Court of Appeal, a motion was filed by the appellant praying, inter alia, for an order that the appellant be granted an extension of time to file and serve a Supplementary Records of Appeal incorporating the documents within the Common Agreed Bundle of Documents marked as “CABD3” filed in the High Court. This application (“regarding “CABD3”) was disallowed by the Court of Appeal.
The Court of Appeal then went on to consider the appeal on merits. The judgment of the Court of Appeal dealt with the law relating to amendments of pleadings. As it is not very long, for easy reference, perhaps it should be reproduced:
The provision relating to amendment of the writ and pleadings is governed by Order 20 rule 5 of the Rules of the High Court 1980. It is trite that amendments can be made at any stage of the proceedings including at the trial. The general principle is that the court will allow such amendments as will cause no injustice to the other parties. It is equally trite if the application is allowed, the opposite party will normally be compensated by way of costs. Be that as it may, the Federal Court, the apex court of this country, had the occasion to consider and interpret Order 20 rule 5. It is the case of Yamaha Motor Co. Ltd. v. Yamaha Malaysia Sdn. Bhd. & Ors.[1983] 1 CLJ 191; [1983] CLJ (Rep) 428; [1983] 1 MLJ 213 where the Federal Court set out three basic questions for consideration, viz:
(1)whether the application is bona fide;
(2)whether the prejudice caused to the other side can be compensated by costs; and
(3)whether the amendments would not in effect turn the suit from one character into a suit of another and inconsistent character.
As we are here dealing with the application for the amendment of defence, question (1) above would be relevant for consideration. If it is allowed, if follows that the other party should be compensated by costs.
This court similarly had considered Order 20 rule 5 Taisho Co. Sdn. Bhd. v. Pan Global Equities Bhd. [1999] 1 MLJ 359. In Taisho ‘s case, the amendments relate to the amendment of the statement of claim. Be that as it may, the questions posed in Yamaha would still be equally applicable to the present appeal before us. If the application of the appellant, on the facts before the learned judge, showed lack of bona fide then he fails in his application altogether. It is then for the appellant asking the court to exercise a discretionary power in his favour to place some material and advance some cogent reasons to impel the court to lean on his side (see Multi-Pak Singapore Pte. Ltd. (In receivership) v. Intraco Ltd. & Ors [1992] 2 SLR 793; [1993] 2 SLR 113).
The learned judge in his judgment at page 45 of the Appeal Record ruled “There is total lack of merit in this application which lacks bona fide “. Lack of bona fide or put it another way, mala fide is very much a ground in considering an application for amendment under Order 20 rule 5 (see also Hock Hua Bank Bhd. v. Leong Yew Chin [1987] MLJ 230). We then need to examine the material placed before him and whether cogent reasons were advanced by the appellant for the court to exercise its discretionary power in his favour.
The court then considered the “bona fide issue” and concluded:
We may not wholly agree with the approach the learned Judge took in dealing with the application when he asked the appellant’s counsel to address him on 5 issues. With respect, he should be guided by the principle set out in the Yamaha case. We may also not totally agree with his reasons on the bona fide issue. However, we agree with his conclusion on the lack of bona fide on the part of the appellant in his application. We were satisfied that on the affidavit evidence there was insufficient material placed before him and even if there was sufficient material no cogent reasons were advanced by the appellant. The learned Judge had, in our view, correctly exercised his judicial discretion in dismissing the application which borders on lack of bona fide. If the appellant fails on this ground, he fails altogether.
There were no compelling grounds for us to interfere with the exercise of his discretion with the exception of the amendment too the title, rewording of the parties and paragraphs 3.1 and 3.3, where we allowed them as they are merely formal. However, the appeal was dismissed with costs. The deposit to go to the respondents towards their taxed costs.
Leave Of The Federal Court
Pursuant to an application for leave to appeal to this court, this court, on 28 March 2002, made the following order:
IT IS HEREBY ORDERED that the Application for leave to appeal to the Federal Court be allowed with costs on the second issue which is re-worded as follows:- “What is the proper test the Court should apply in defamation cases where application for amendments are made to include a plea of justification in the defence when the evidence relating to these particulars are discovered after the Pleadings are closed.
Preliminary Objection
The appeal was fixed for hearing on 13 May 2002. On 7 May 2002, learned counsel for the respondent wrote to the registrar informing the court that at commencement of the hearing of the appeal, the respondent would “take a preliminary objection and invite the honourable court to consider the following matters/issues:
(A)the question/issue for which leave was granted is not a matter/issue that arose or was decided by the High Court in the exercise of its original jurisdiction and/or by the Court of Appeal;
(B)consequently, the Federal Court did not have jurisdiction to grant leave. Accordingly, the leave granted should be withdrawn/set aside and/or the aforesaid appeal ought to be dismissed;
(C)the question for which leave was granted is hypothetical and/or an academic question; and
(D)consequently, the Federal Court should decline to answer the question and the aforesaid Appeal ought to be dismissed.
I shall now deal with the preliminary objection first.
Learned counsel for the respondents argued that the question posed by the Federal Court did not arise from or was not decided by the High Court or the Court of Appeal. Referring to the question posed by the Federal Court (reproduced earlier) he stressed on the words “when the evidence relating to these particulars are discovered after the pleadings are closed.” The learned counsel submitted that the appellant’s case at the High Court was quite opposite from the question posed by this court. The appellant had clearly stated in his affidavit that the proposed amended defence “are not fresh evidence but documentary evidence in support in what was pleaded in the existing defence”. The appellant further admitted in the said affidavit that “the existing defence filed and does not propose to alter the character of the suit nor incorporate new facts in any manner inconsistent with the thrust of the existing defence. The detailed particularisation of the factual representations in relation to the Ayer Molek case (as it appears in paras. 15.1 to 15.27 of the proposed amended defence) have in actual fact already been pleaded by the defendant in a previous suit related to this present suit involving the same plaintiffs.”
The learned counsel for the respondents went on to argue that this court had no jurisdiction to grant leave as per question posed and urged this panel to set aside the leave granted by the earlier panel or, alternatively, to decline to answer the question posed as it is academic. The learned counsel for the respondents submitted that the question posed did not arise from the judgment of the Court of Appeal in respect of a cause or matter decided by the High Court in the exercise of its original jurisdiction. He referred to s. 96(a) of the Courts of Judicature Act 1964, the cases of Lam Kong Co. Ltd. v. Thong Guan Co. Pte. Ltd. [2000] 4 CLJ 769 FC, Capital Insurance Bhd. v. Aishah bte. Abdul Manap & Anor [2000] 4 CLJ 1 FC, The Minister for Human Resources v. Thong Chin Yoong and Another Appeal [2001] 3 CLJ 933 FC, Megat Najmuddin bin Dato’ Seri (Dr.) Megat Khas v. Bank Bumiputra (M) Bhd.[2002] 1 CLJ 645; [2002] CLJ JT(2)FC.
The first question that arises from this submission is whether, the leave having been granted by this court and now that this court (this panel) is constituted to hear the appeal, this court (this panel) should allow the respondents to reopen the issue whether the leave should have been granted or not.
Generally speaking, it should not. The issue has been decided by this court. It is res judicata. A party should not be given a second bite of the cherry. A new panel of this court should not be reversing the decision of the earlier panel of the same court. There should be consistency in the judgment of the court.
However, where the granting of the leave is challenged on the ground of lack of jurisdiction, this court has held that the granting of the leave to appeal to this court may still be challenged even at the hearing of the appeal.
In Capital Insurance Bhd., during the hearing of the appeal from the High Court to the Court of Appeal, a preliminary objection was raised in the Court of Appeal that the record of appeal was bad in law and ought to be set aside for non-compliance with r. 18(4)(d) and 18(7) of the Rules of the Court of Appeal 1994. The Court of Appeal upheld the preliminary objection and dismissed the appeal. During the hearing of the application for leave to appeal to the Federal Court, a preliminary objection was raised that the application for leave was improper. The preliminary objection “was summarily dismissed.” At the hearing of the appeal, the respondent raised a preliminary objection in respect of the jurisdiction of the Federal Court to hear the appeal. It was submitted that the subject matter of the appeal was not from the judgment of the Court of Appeal in respect of any civil cause or matter decided by the High Court in the exercise of its original jurisdiction. Mohamed Dzaiddin FCJ (as he then was) delivering the judgment of the court said, inter alia :
Since the preliminary objection relates to the question of jurisdiction of the Federal Court to hear appeals from the Court of Appeal, and noting that at a leave stage the preliminary objection taken by the respondents that the leave application was improper was summarily dismissed by this court, the respondents are entitled to raise this preliminary objection and this court can entertain the application.
In The Minister for Human Resources the High Court issued an order of certiorari to quash the decision of the Minister made under s. 20(2) of the Industrial Relations Act 1967. The High Court held that the Minister erred in the exercise of his discretion under s. 20(3) of the Actin declining to refer the representations of the claimant to the Industrial Court. The Federal Court granted leave to appeal and framed the following question for its determination: ‘Whether the employer can suspend an employee without loss of pay, benefits and perks pending the conclusion of the investigations and inquiries into his conduct notwithstanding that this is not stated in the terms of employment’. At the hearing of the appeal the claimant raised a preliminary objection that the question as framed did not come within the meaning of s. 96(a) of the Courts of Judicature Act 1964(‘the CJA’) and hence the appeal should be dismissed forthwith.
Held, allowing the preliminary objection:
(1)The High Court and the Court of Appeal did not consider the issue of suspension except to say that it may be relevant for the purpose of determining whether the claimant was entitled to declare that he was constructively dismissed. This issue involved mixed questions of law and fact for the Industrial Court. Further, the question as framed seems to indicate that it was a point of law in which case then the proper forum to consider would be the Industrial Court. Hence, the Minister erred in the exercise of his discretion under s. 20(3) of the Act(see p 231C-D).
(2)The Federal Court was asked to consider an issue which was not determined by the High Court as well as the Court of Appeal. To that extent the proper order that the court should make would be to decline to answer the question. It is best that the issue of suspension be considered by the Industrial Court in determining whether the claimant was dismissed without just cause or excuse. In the circumstances of the case the court agreed with the preliminary objection that the question framed by this court for its determination did not come within the ambit of s. 96(a) of the CJA(see p 231E-G).
So, at least in those two cases this court has allowed the issue to be raised by way of a preliminary objection at the hearing of the appeal. In the circumstances I accept that the respondents in the present case may be allowed to raise this issue at this stage even for the first time.
So the question is whether this appeal falls outside the ambit of the provisions of s. 96(a) of the Courts of Judicature Act 1964?
In answering this question, the following points should be noted. In Lam Kong Co. Ltd., the judgment under appeal was the decision of the Court of Appeal made in an application filed in the Court of Appeal. In other words the application itself originated in the Court of Appeal. In the present appeal the application for amendment was made in the High Court. Against the order of the High Court there was an appeal to the Court of Appeal. It is against the judgment of the Court of Appeal in that appeal from the High Court that the appellant appealed to the Federal Court. In that respect Lam Kong Co. Ltd. is distinguishable from the present appeal.
Capital Insurance Bhd. can also be distinguished on the same ground. There too a preliminary objection was raised in the Court of Appeal that the record of appeal had not complied with r. 18(4)(d) and 18(7) of the Rules of the Court of Appeal 1994. In other words, the matter originated in the Court of Appeal.
It is the same with Megat Najmuddin bin Dato’ Seri (Dr) Megat Khas.
However, The Minister for Human Resources is different. It is in fact similar to this case. In that case, the matter (application for certiorari ) originated in the High Court. There was an appeal to the Court of Appeal and subsequently to the Federal Court. But, it was the issue posed by the Federal Court in granting the leave to appeal to the Federal Court that was challenged as falling outside the ambit of s. 96(a) of the Courts of Judicature Act 1964, as the issue was not an issue decided by the High Court or the Court of Appeal. The issue determined by the High Court and confirmed by the Court of Appeal was whether the Minister had erred in the exercise of his discretion under s. 20(3) of the Industrial Relations Act 1967. However, the Federal Court, in granting leave to appeal framed a question on the right of the employer to suspend the employee pending the conclusion of an investigation against him. The Federal Court in that case declined to answer the question posed.
Initially, I thought that the Federal Court, being the highest court in the country, should have some flexibility to frame questions for the appeal when granting leave to appeal. By that I mean that this court is free to frame questions for appeal thereto so long as the questions are connected with or arising from the case (ie, the suit, application, etc.) that had commenced in the High Court and subsequently went on appeal to the Court of Appeal. In other words, it is not restricted to issues decided by the High Court. This is because, quite often, the case takes a different turn during the argument of the appeal at the Court of Appeal. However, this court, in The Minister for Human Resources, appears to have adopted the more restrictive view. I am quite reluctant to differ and I accept it as the law, first, for the sake of consistency and, secondly, there may be greater wisdom in it eg, it is more consistent with the principle that a party is bound by its pleadings.
So, the question is whether, in this case, the issue posed, is one that was decided in the High Court. To answer this question, we will have to go back to the application for leave to amend the defence, the affidavit in support of the application, the judgment of the learned High Court judge and the question posed.
As was reproduced earlier, the main purpose of the amendment was to separate the roll-up plea of justification and fair comment.
The High Court dismissed the application on the ground that no exhibits were attached to the affidavit in support of the application, that there was “a total lack of merits in this application which lacks bona fide.” The Court of Appeal dismissed the appeal on the ground that “there was insufficient material placed before the learned judge and even if there was sufficient material no cogent reasons were advanced by the appellant”; and that there was a lack of bona fide on the part of the appellant. The question posed refers to no such issue. It relates to the test applicable where the evidence relating to the particulars are discovered after the pleadings are closed. So, on the authority of the judgment of this court in The Minister for Human Resources, this court should decline to answer the question posed.
However, in this case, there is yet another strong ground on which this court should also decline to answer the question posed. And, that is, the question posed does not relate to the facts of the case and is academic.
It must be remembered that the question posed is the proper test applicable “where the evidence relating to these particulars are discovered after the pleadings are closed.” (emphasis added).
Was the evidence relating to the particulars of the proposed amended defence discovered after the pleadings were closed?
The respondents’ reply to the appellants defence was filed on 23 September 1996. Pursuant to O. 18 r. 20 of the Rules of the High Court 1980pleadings are deemed to be closed at the expiration of 14 days after the service of the reply, in any event, as early as 1996.
The appellant’s own affidavit in support of the application said in para. 8(a):
… the proposed amendments to the Defence merely provide further particularization and clarity in comparison to the existing Defence filed and does not propose to alter the character of the suit nor incorporate new facts in any manner inconsistent with the thrust of the existing Defence. The detailed particularization of the factual representations in relation to the Ayer Molek case (as it appears in paragraph 15.1 to 15.27 of the Proposed Amended Defence) have in actual fact already been pleaded by the Defendant in a previous suit related to this present suit involving the same Plaintiffs (Suit No: S4-23-44-1996 Insas Bhd & Anor v. Tommy Thomas & Anor [hereinafter referred to as the “Previous Suit”]) and hence does not take the Plaintiffs by surprise for they are aware of such particulars.
In para. 8(b):
Yet again, I wish to stress that these are not fresh evidence but documentary evidence in support what was already pleaded in the existing Defence.
In para. 9:
The Proposed Amended Defence in this application will cause no prejudice to the Plaintiffs for the reasons stated in paragraph 8 above, particularly that the Plaintiff’s are already aware of the particulars under justification as it was pleaded in the Previous Suit and also the fact that the amendments are in actual fact further particulars of what has already been pleaded in the existing Defence in general terms. The proposed amendments do not seek to adduce fresh evidence in the proceeding for surely the same evidence can and will be adduced based on the existing Defence (which in any case should be anticipated by the Plaintiffs).
In para. 10(c):
there is no likelihood of fresh evidence led on issues which may arise as a result of the amendments simply because the same issues do exist within the pleaded meaning of the existing Defence, albeit in a general manner.
(It should be noted that the statements contained in the affidavit of the appellant that some of the documents were kept abroad, that time was needed to make careful comparison and confirmation of the copies of the documents with the original documents, the need to make careful assessment of the documents etc. are reasons given for the delay in making the application. They have nothing to do with discovery.)
So, from the appellant’s own affidavit, it is clear that the evidence relating to these particulars were not discovered after the pleadings were closed. To answer the question would be purely an academic exercise. That is not the function of this court.
In Syed Kechik bin Syed Mohamed & Anor v. The Board of Trustees of the Sabah Foundation & Ors. and Another Application[1999] 1 CLJ 325; [1997] 1 MLJ 257 (FC), Edgar Joseph Jr. FCJ, said:
Having said that, this Court does not sit to decide abstract or academic or hypothetical questions of law regarding which the parties are not in dispute. Thus, in Ainsbury v. Millington [1987] 1 All ER 929, Lord Bridge said this (at pp 930-931):
It has always been a fundamental feature of our judicial system that the Courts decide disputes between the parties before them; they do not pronounce on abstract questions of law when there is no dispute to be resolved.
In Sun Life Assurance Company & Canada and Jervis (1994) The Law Reports Appeal Cases, p. 111, Viscount Simon LC, speaking for the House of Lords, said:
… I do not think that it would be a proper exercise of the authority which this House possesses to hear appeals if it occupies time in this case in deciding an academic question, the answer to which cannot affect the respondent in any way. If the House undertook to do so, it would not be deciding an existing lis between the parties who are before it, but would merely be expressing its view on a legal conundrum which the appellants hope to get decided in their favour without in any way affecting the position between the parties.
In Ainsbury v. Millington [1987] 1 All ER 929 (HL), Lord Bridge, having cited the passage by Viscount Simon LC above, said:
It has always been a fundamental feature of our judicial system that the Courts decide disputes between the parties before them; they do not pronounce on abstract questions of law when there is no dispute to be resolved.
In Loknath Padhan v. Birendra Kumar Sahu [1974] AIR 505, the Supreme Court of India held:
It is well-settled practice recognized and followed in India that if an issue is purely academic in that its decision one way or the other would have no impact on the position of the parties, it would be waste of public time and indeed not proper exercise of authority for the Court to engage itself in deciding it.
Justice Bagwati, in his judgment, said:
… it would be clearly futile and meaningless for the Court to decide an academic question, the answer to which would no affect the position of one party or the other. The Court would not engage in a fruitless exercise. It would refuse to decide a question, unless it has a bearing on some right or liability in controversy between the parties. If the decision of a question would be wholly ineffectual so far as the parties are concerned, it would be not only unnecessary and pointless but also inexpedient to decide it and the Court would properly decline to do so.
The appellant too does not come to this court to know what the law is in this country on a hypothetical issue. The appellant wants his proposed amendments to be admitted. But, even if this court were to answer the question posed in a way that he would like this court to answer, still this court would not be able to make the order that he requires. That is because the facts of the case, as stated by him, are materially different from the facts that form the basis of the answer.
In the circumstances, following, in particular the decision of this court in The Minister for Human Resources I would decline to answer the question. I would dismiss the appeal with costs without considering the merits.
My learned Chief Judge (Sabah and Sarawak) has seen this judgment in draft and agreed with it.

HIGH COURT, KUALA LUMPUR
ABDUL HAMID MOHAMAD, JCA; MOHD NOOR AHMAD, JCA; P S GILL, JCA
RAYUAN SIVIL NO. W-01-17 OF 1997
[2002] 1 LNS 194
Counsel:
Bagi Pihak Perayu – Cik Shanti Mogan Encik Rajkumar Mathusuthanan
Bagi Pihak Responden – Encik Abu Tariq Jamaluddin Encik Muazmir Mohd. Yusof
CORAM: ABDUL HAMID MOHAMAD J.C.A.
MOHD. NOOR AHMAD J.C.A.
P.S. GILL J.C.A.
JUDGMENT
The Appellant (Plaintiff in the High Court) was appointed receiver and manager of Carah Enterprise Sdn. Bhd. (“the Company”) vide a Deed of Appointment dated 9th February 1994 executed by Perdana Merchant Bankers Berhad (“Perdana”). Notice of Appointment was given on 14th February 1994 by filing the requisite notice in Form 59 with the Registrar of Companies.
The appointment was pursuant to the provisions of the Deed of Debenture dated 30th June 1992. The debenture was executed by the Company as security for a term loan facility pursuant to a Facility Agreement dated 30th June 1992 in favour of Perdana in its capacity as agent for the syndicate lenders.
The Respondent (the Defendant in the High Court) is the Director General of the Inland Revenue Department, Federal Territory. The Respondent had caused to be issued to the Company a Notice of Assessment for the year of 1993; a Notification of Increase in Income Tax dated 31st January 1994 in which the income tax payable for the year of assessment 1993 was increased; Notice of Assessment for the year of assessment 1994 dated 28th December 1994 stating the income tax payable by the Company for the year of assessment 1994; and a Notification of Increase of Income Tax for the year of assessment 1994 dated 28th December 1994.
The Appellant filed an Originating Summons No. R1-24-34-1995 pursuant to section 183(3) of the Companies Act 1965 to seek directions of the Court in relation to the priority to be accorded to a claim by the Director General of Inland Revenue Department for payment of income tax which had become payable, or will become payable by the Company. The directions sought were, inter alia:
a. Whether there is an obligation placed on the Receiver & Manager by virtue of the Income Tax Act 1967 to set aside such sum out of the assets of the Company under receivership to provide for income tax payable or thereafter to be payable;
b. Whether payment of income tax is accorded, as a matter of law, priority in a receivership over the debt due to the Syndicate Lenders, over the Receivers & Managers expenses, and/or over the Receiver’s & Managers professional fees arising out of the performance of his duties; and
c. If income tax is accorded such priority, then what level of priority is to be accorded by the Receiver & Manager as compared to the other preferential debts specifically mentioned by a reading of sections 191 and 292 of the Companies Act 1965 or whether income tax takes precedence over all such preferential debts.
However, in the course of the hearing in the High Court, in transpired that only one issue had to be answered and that is: whether in a receivership federal tax has priority over payments to be made to the debenture holders.
The learned Judge decided in favour of the Respondent. He held that as the Company was under a receivership (as against a winding up) the question whether a federal tax is a preferential debt or not did not arise. Federal tax has to be paid in accordance with the relevant tax law. He therefore ruled that the Receiver and Manager should pay the federal tax first before making payments to the debenture holders. The learned Judge relied on Raja Arshad bin Raja Tun Uda & Anor v. Director-General of Inland Revenue [1990] 1 CLJ (Rep) 253; [1990] 1 CLJ 39; (1990) 1 MLJ 106 S.C. and Director of Customs, Federal Territory vLer Cheng Chye (Liquidator of Castwell Sdn. Bhd [1995] 3 CLJ 316., in Liquidation); (1995) 2 MLJ 600.
Perhaps, at this stage, for convenience, the relevant provisions of the Companies Act 1965 should be reproduced.
Section 191 provides:
“191.(1) where a receiver is appointed on behalf of the holders of any debentures of a company secured by a floating charge or possession is taken by or on behalf of debenture holders of any property comprised in or subject to a floating charge, then if the company is not at the time in the course of being wound up, debts which in every winding up are preferential debts and are due by way of wages salary vacation leave or superannuation or provident fund payments and any amount which in a winding up is payable in pursuance of section 292 (3) or (5) shall be paid out of any assets coming to the hands of the receiver or other person taking possession in priority to any claim for principal or interest in respect of the debentures and shall be paid in the same order of priority as is prescribed by that section in respect of those debts and amounts.
(2) For the purposes of subsection (1) the references in section 292 (1) (b), (c), (d) and (e) to the commencement of the winding up shall be read as a reference to the date of the appointment of the receiver or of possession being taken as aforesaid (as the case requires).
(3) Any payments made under this section shall be recouped as far as may be out of the assets of the company available for payment of general creditors.”
Section 292, inter alia, provides:
“292.(1)Subject to this Act, in a winding up there shall be paid in priority to all other unsecured debts-
a. firstly, the costs and expenses of the winding up including the taxed costs of a petitioner payable under section 220, the remuneration of the liquidator and the costs of any audit carried out pursuant to section 281;
b. secondly, all wages or salary (whether or not earned wholly or in part by way of commission) including any amount payable by way of allowance or reimbursement under any contract of employment or award or agreement regulating conditions of employment, of any employee not exceeding one thousand five hundred ringgit or such other amount as may be prescribed from time to time whether for time or piecework in respect of services rendered by him to the company within a period of four months before the commencement of the winding up;
c. thirdly, all amounts due in respect of worker’s compensation under any written law relating to worker’s compensation accrued before the commencement of the winding up;
d. fourthly, all remuneration payable to any employee in respect of vacation leave, or in the case of his death to any other person in his right, accrued in respect of any period before the commencement of the winding up;
e. fifthly, all amounts due in respect of contributions payable during the twelve months next before the commencement of the winding up by the company as the employer of any person under any written law relating to employees superannuation or provident funds or under any scheme of superannuation or retirement benefit which is an approved scheme under the federal law relating to income tax; and
f. sixthly, the amount of all federal tax assessed under any written law before the date of the commencement of the winding up or assessed at any time before the time fixed for the proving of debts has expired.
(2) The debts in each class specified in subsection (1) shall rank in the order therein specified but as between debts of the same class shall rank equally between themselves, and shall be paid in full, unless the property of the company is insufficient to meet them, in which case they shall abate in equal proportions between themselves.
(3) Where any payment has been made to any employee of the company on account of wages salary or vacation leave out of money advanced by a person for that purpose, the person by whom the money was advanced and paid, up to the amount by which the sum in respect of which the employee would have been entitled to priority in the winding up has been diminished by reason of the payment, and shall have the same right or priority in respect of that amount as the employee would have had if the payment had not been made.”
Reading these two sections, the first thing that strikes my mind is that nowhere do the two sections talk about priority of payment to debenture holders. Section 292 lists down the priorities in which federal tax ranks sixth. Payments to debenture holders is not one of them. Section 191, in essence, says that where a receiver is appointed not in the course of a winding up, debts which in every winding up are preferential debts and are due by way of wages, salary, vacation leave or superannuation or provident fund payments and any amount which in a winding up is payable in pursuance of section 292(3) or (5) shall be paid out in priority to any claim for principle or interest in respect of the debentures and shall be paid in the same order of priority as is prescribed by that section in respect of those debts and amounts. In other words, all those payments mentioned in section 191(1) shall be paid in priority to the claim in respect of debentures and they are to be paid in the order of priority as provided by section 292. But, federal tax is not one of the payments mentioned in section 191. So are claims in respect of debentures. What it means is that section 191 does not provide for priority as between the two. Of course, if the company is wound up, then federal tax ranks sixth, but claims in respect of debentures are not mentioned, meaning that such claims are not even in the list of priorities. So the only conclusion that can be arrived at, in the case of a winding up, federal tax has priority over claims in respect of debentures, because, though sixth in the order of priority, it is a priority while the claims in respect of debentures are not.
But, what is the position in the case of an appointment of a receiver, not being in the course of a winding up of the company?
I shall now look at the case law. I shall take them in chronological order.
In Re Golden Palace Musical Hall Sdn. Bhd.[1986] 1 LNS 126; (1988) 2 MLJ 634, the applicant was appointed a receiver of the company in question pursuant to powers contained in a debenture dated 5th November 1983 issued to Kwong Yik Bank Berhad. The receiver managed to recover from some insurance company a sum of RM295,000. The Department of Royal Customs and Excise claimed a sum of RM103,520 being arrears of service tax inclusive of penalty and late payments in priority to all other claims including the claim for principal and interest from the bank as debenture holder in the sum of RM560,480.00. Peh Swee Chin J (as he than was) held that the claim by the Department of Royal Customs & Excise must be paid first before the claim for the said principal and interest of the debenture holder i.e. the bank.
In the course of his judgment, the learned Judge referring to section 191 of the Companies’ Act 1965, said:
“The status of a federal tax as a preferential debt has thus been deliberately omitted from section 191, and would appear at first not to be such a preferential debt on the appointment of a receiver.”
I agree with that statement.
However, relying on section 52 of the Service Tax Act 1975 the learned Judge held that service tax has priority over claims by debenture holders. Section 52 of the Service Tax Act 1975, as it was then, provides:
“52. Where a receiver is appointed of the property of a person to whom a licence under section 8 is issued the receiver shall give notice thereof to the Director General within fourteen days after the appointment being made and shall before disposing of any of the assets of that person set aside such sum out of the assets as appears to the Director General to be sufficient to provide for any service tax that there is or will thereafter become payable in respect of the taxable service that have been provided or taxable goods that have been sold or provided by that person before the appointment of the receiver.”
Of that provision the learned Judge said:
“Section 52(1) is couched in peremptory language, such that the receiver must set aside, before disposing of any of the assets (the italics is mine), such sum as to be sufficient to pay for the service tax. To set aside must, in my view, necessarily imply that such sum set aside will have to be paid out to the said department.”
It is interesting to note that in spite of the decision in favour of the department, that section was amended by the Service Tax (Amendment) Act 1999 (Act A1060), by, inter alia, adding the words “and shall pay such service tax” at the end of subsection (1).
Raja Arshad (26th September 1989) is a decision of the Supreme Court. The facts and the decision are sufficiently summarised in the head note:
“In this case, the appellants had been appointed receivers and managers of a company which was indebted to a bank. The appellants’ predecessors as receivers and managers had sold the only asset of a company, a landed property. The total purchase price had been paid to the receivers. The respondents, the Director-General of Inland Revenue, claimed payment of real property gains tax. The appellants applied to the High Court for directions and the learned judge of the High Court held that the respondents were entitled to the amount claimed. The appellants appealed.
Held, dismissing the appeal:
The purchaser of the property in this case who was the acquirer under s 2 of the Real Property Gains Tax Act 1976 was statutorily bound to retain the sum payable by the company as real property gains tax until the acquirer receives the certificate of clearance under the Act and as the acquirer had not complied with what it was statutorily bound to do under the Act and had instead passed the whole amount of the purchase price to the receivers, the receivers had received a sum part of which they ought not to have received. The respondent was entitled to the sum being the amount of tax payable on the disposal of the land property. As far as the tax is concerned, the question of priority does not arise.”
It is to be noted that section 21B(1)(a) of the Real Property Gains Tax Act 1976 relied on by the Supreme Court in arriving at the conclusion that it did, provides:
“21B(1) Where on a disposal to which s 13 applies, the consideration consists wholly or partly of money.
(a) the acquirer shall, until he receives the Director-General’s certificate of clearance under s 21A, retain the whole of that money (subject to the reservation that the money retained shall not exceed a sum calculated at the rate at which the tax is for the time being chargeable, on the total value of the consideration).”
Hashim Yeop A. Sani, C.J. (Malaya) delivering the judgment of the Court explains:
“There is no real lacuna in the law. In a winding up, federal tax ranks sixth as preferential debt as referred to earlier, i.e. by virtue of s 292(1) of the Companies Act 1965. Where, however, there is no winding up and a receiver and manager is appointed as in this case, the federal tax is to be paid in accordance with the taxing statute concerned.
It is not therefore a question of whether the federal tax is a preferential debt. It is only a question of how and when that tax becomes payable and should be paid by the company being the ‘chargeable’ person under the Act.”
In Anuarul Aini & Anor v. Ketua Pengarah Kastam dan Eksais Diraja, Malaysia, Johore Bharu[1991] 2 CLJ 278 (Rep) [1991] 1 CLJ 495; (1991) 1 MLJ James Foong J. considered the provision of section 70 of the Sales Tax Act 1972, which, in so far as it is maternal, is identical to the provision of section 52 of the Service Tax Act 1975. The learned Judge held that section 70 standing on its own does not provide a priority payment to sales tax. The learned Judge referred to Re Golden Palace, but, with respect, his view of that judgment is unclear. He, however, found that “sales tax being a debt owed to the government ranks in priority over the fixed charge of the debenture holders”, relying on section 10 of the Government Proceedings Ordinance 1956. No reference was made to Raja Arshad.
[This case (Anuarul Aini) went on appeal to the Supreme Court and was “summarily upheld” see Kenneth Teh Ah Kian & Anor. (Receivers and managers of Global Pacific Textile Industries Sdn. Bhd., in receivership) v. Ketua Pengarah Kastam & Eksais & Ors [1994] 3 CLJ 772,; (1998) 1 M.L.J 289, 297 (F.C.)].
In the following year (1992) in Ler Leng Chye Liquidator of Casterwell Sdn. Bhd. (In Liquidation) (1992) 2 C.L.J. 1019 Zakaria M. Yatim J (as he then was) had the occasion to consider the provision of section 69 of the Sales Tax Act 1972, which, in so far as it is material, is identical in wording with section 70 of that Act. The learned Judge followed the view of James Foong J. in Annuarul Aini regarding the effects of section 70 of the Act on priority i.e. it “does not confer priority rights over other things.”
Again Raja Arshad was not referred to by the learned Judge.
On appeal (see (1995) 2 MLJ 600) the Supreme Court held that section 69 of the Sales Tax Act 1972 was directive in nature and merely directs the setting aside of moneys sufficient for taxation, but does not provide that Government debts shall rank in priority to all other secured debts. The case being a winding up case, the Supreme Court held that the proper provisions to apply in deciding the priority of payments in respect of the sales tax debt were sections 291 and 292 of the Companies Act 1965.
I do not think that I have to discuss Global Pacific Textile Industrias Sdn. Bhd. (In receivership) v. Ketua Pengarah Jabatan Kastam dan Eksais & Ors (1994) 3 MLJ 175, as it was decided prior to the Supreme Court decision in Ler Cheng Chye and as it was also a winding-up case.
The issue regarding the priority of sales tax was considered again by the Federal Court in Abdul Samad bin Hj. Alias v. the Government of Malaysia & Ors.[1996] 4 CLJ 123; (1996) 3 MLJ 581. In that case the appellant was appointed by the United Asian Bank as the receiver and manager of Rajiv Enterprises Sdn. Bhd. pursuant to the terms of a debenture. On the issue of sales tax, the government claimed that they were entitled to priority by reason of section 70 of the Sales Tax Act 1972 or section 10 of the Government Proceedings Act 1956. The Federal Court held:
“Held, allowing the appeal”
1. It must now be regarded as settled that ss 69 and 70 of the 1972 Act do not operate to confer any priority for sales tax over other debts and that s 292(1) of the 1965 Act must be read as an exception to the general provisions of s 10(1) of the 1956 Act (see p 591F), Director of Customs, Federal Territory v Ler Cheng Chye (Liquidator of Castwell Sdn. Bhd, in liquidation)[1995] 3 CLJ 316; [1995] 2 MLJ 600 followed.
2. It is erroneous to say that the provisions of ss 191 and 292 of the 1965 Act do not apply. Once a receiver has been appointed, ss 191 and 292 will come into play. Whilst it is true that a taxable person collects the sales tax for the government, the government cannot claim priority over such monies once a receiver has been appointed. The argument will be tenable only if the monies collected by Rajiv as sales tax were put into a separate special account. But, there is no evidence that monies collected as sales tax were put into such an account. They must have been put into the mixed account of Rajiv (see pp 5911 and 592A-B).”
It is not for me to comment on the reasons given in the last three sentences quoted above. It is also not for me or this court to disagree with the decision of the Supreme Court that sections 69 and 70 of the Sales Tax Act 1972 do not operate to confer priority for sales tax over other debts. I also have no problem agreeing that once a receiver has been appointed sections 191 and 292 come into play. But, that statement must be understood to mean that section 292 applies in so far as it is provided by section 191. In other words, in a section 191 situation, section 292 is only applicable to debts specifically mentioned in section 191 and federal tax is not one of them.
In the following year, the Federal Court decided the case of Kenneth Teh Ah Kian & Anor (Receivers and Managers of Global pacific Textile Industrias Sdn. Bhd. in receivership) v. Ketua Pengarah Jabatan Kastam dan Eksais & Ors (1998) 1 MLJ 289. The appellants were appointed by the debenture holders as receivers and managers of the debtor company. The value of realizable assets in their hands, including the value of goods seized by the customs department under the Sales Tax Act 1972 prior to the date of crystallization of the debentures, were insufficient to meet all the claims of the debenture holders, the Director General of Cusotms & Excise, the Employees Provident Fund Board and their own claims of professional fees and expenses incurred in the receivership. The respondents had claimed priority of payment under the relevant provisions of the Customs Act 1967, the Sales Tax Act, 1972 the Employees Provident Fund Act 1991 and under section 10 of the Government Proceedings Act 1956. On the contrary the appellants relied on section 191 read together with section 292(1) of the Companies Act 1965 to claim for higher priorities for their own professional costs and expenses of receivership as well debts due to the debenture holders.
“Held, allowing the appeal in part:
1. The provision of s 292 of the Companies Act 1965 must necessarily prevail over the provision of s 10 of the GPA on priority of payment in a liquidation situation, and the same applied to a receivership situation by virtue of s 191 of the Companies Act 1965 (see p 300H); Director of Customs, Federal Territory v Ler Cheng Chye (Liquidator of Castwell Sdn. Bhd. in liquidation) [1995] 3 CLJ 316; [1995] 2 MLJ 600 and Abdul Samad bin Hj. Alias v The Government of Malaysia & Ors [1996] 4 CLJ 123; [1996] 3 MLJ 581 followed.
2. Sections 23, 69 and 70 of the STA have nothing at all to do with the issue of priority of payment. Thus, unless s 10 of the GPA is successfully brought into operation, there is nothing in the STA itself to confer any priority of payment to the unsecured debts due to the federal government. Since it was conceded that s 10 of the GPA had no application, federal tax assessed under the STA could not claim overall priority of payment without contravening s 292(1) priorities. Similarly, there is nothing in ss 11 and 65 of the CA to give priority of payment of customs duties as unsecured debts to the government. Again, the inability to invoke s 10 of the GPA would cripple the respondent’s case. As such, the priority of payment in respect of federal taxes assessed under any written law must rank in accordance with s 292(1) of the Companies Act 1965. In the circumstances, the trial judge erred in law in directing the customs duties and the sales taxes leviable against the debtor company to have priority of payment over debts due to the debenture holders and the receiver’s costs and expenses (see pp 300I and 301A-E).
3. Section 51 of the EPF Act has nothing to do with priority of payment in a receivership or liquidation of a company. There is nothing in the EPF Act itself to give priority of payment to the EPF Board. On the contrary, s 191(1) of the Companies Act 1965 itself confers priority to EPF contributions payable by the employer over any claim of the debenture holders. In the circumstances, the EPF contributions in the present appeal must necessarily fall under s 292(1)(e) of the Companies Act 1965 for purpose of priority over all other unsecured debts in the event where there is insufficiency of realizable assets in the floating charge to meet all claims. Since EPF contributions are expressly included for priority purposes under s 191(1), there is no reason why such contributions should be excluded form s 292(1) unless expressly so provided by Parliament. In the circumstances, as far as the claim of the EPF board was concerned, the order of the trial judge should be set aside on the ground that the contributions under the EPF Act payable by the debtor company do not have priority over the receivers’ cost and expenses under s 292(1) of the Companies Act 1965, although they do have priority of payment over debts due to the debenture holders in respect of principal or interest under the debentures see p 302C-G).”
So, with regard to sales tax, even where there are provisions as in sections 23, 69 and 70, the Federal Court in Kenneth Teh Ah Kian held that such provisions have nothing to do with the issue of priority of payment and the federal tax assessed under the Sales Tax Act 1972 cannot claim priority over claims by debenture holders. An exception is where section 10 of the Government Proceedings Act 1972 “is successfully brought into operation.” It should be noted that in that case (Kenneth Teh Ah Kian) that section did not apply.
Again, surprisingly, no reference was made to RajaArshad, a judgment of the Supreme Court where a similar provision in the Real Property Gains Tax Act 1976 was in issue.
However, I must confess that I find it difficult to understand this passage of the judgment in Kenneth Teh Ah Kian at page 298:
“The principle on priority of payment in Ler Cheng Chye was thus extended and applied to a receivership situation by Abdul Samad by virtue of section 191 read together with s 292 of the Companies Act 1965……”
in regard to federal taxes.
And also this passage at page 301:
“Under s 292(1) read with s 191 of the Companies’ Act 1965, the customs duties and sales taxes in the form of government taxes would rank sixth in terms of priority of payment to all other unsecured debts.”
As I understand it, if a company is wound up, then federal taxes ranks sixth in priority by virtue of section 292(1). That is clearly provided for. But, where a receiver and manager is appointed not in the course of a winding up under section 191, the preferential debts enumerated in section 191 do not include federal taxes. True that section 191 is to be read with section 292. But to what extent? It can only be to the extent provided by section 191, i.e. in regard to the preferential debts mentioned therein the ranking of which will be as provided in section 292. But where section 191 excludes a particular debt, the ranking regarding it as provided in 292 simply cannot apply. There is nothing to apply to. Note that even subsection (2) of section 191 which makes specific reference to paragraphs (b), (c), (d) and (e) of section 292(1) omits paragraph (f) which is federal tax.
In this respect, if I have a choice, I would prefer the view of Hashim Yeop A. Sani C.J. (Malaya) in Raja Arshad when, delivering the judgment of the Supreme Court, at page 107:
“In a winding up, federal tax ranks sixth as preferential debt………. by virtue of s 292(1) of the Companies Act 1965. Where, however, there is no winding up and a receiver and manager is appointed as in this case, the federal tax is to be paid in accordance with the taxing statute concerned.”
In other words, in respect of federal tax, where a receiver and manager is appointed under section 191, section 292 does not come into play because federal tax is not a preferential debt under section 191. That, in my view and with respect, is the correct position.
It is hoped that this case will give the Federal Court another opportunity to look at the provisions of sections 191 and 292 again in respect of federal tax and in view of the fact that Raja Arshad appears to have escaped the notice of the Federal Court when deciding Abdul Samad and Kenneth Teh Ah Kian.
Coming back to the present appeal. The debt here is income tax, a federal tax. It is not one of the preferential debts provided under section 191. So, the ranking provided in section 292 cannot come into play. So sections 191 and 292 cannot be relied on to give priority to federal tax over claims in respect of debentures.
Following Raja Arshad, indeed, the Federal Court in Abdul Samad and Kenneth Teh Ah Kian did the same, I shall now look at the taxing statute concerned, i.e. the Income Tax Act 1967. Section 103 of the Income Tax Act 1967 provides:
“103(1) Subject to this section, tax payable under an assessment or a composite assessment shall on the service of the notice of assessment or composite assessment on the person assessed be due and payable at the place specified in that notice, whether or not that person appeals against the assessment.” (emphasis added).
All it says is that the tax assessed, upon the service of the notice of assessment, becomes due and payable. How is it to be recovered? The most common method is provided by section 106.
“106.(1) Tax due and payable may be recovered by the Government by civil proceedings as a debt due to the Government.”
True that in any proceeding for the recovery of the tax assessed the court shall not entertain any plea that the amount of the tax sought to be recovered is excessive, incorrectly assessed, under appeal or incorrectly increased section 106(3). That is because there is a different forum for such challenges. But, the fact remains that the tax only becomes due and payable upon service of the notice of assessment. That is all. It has nothing to do with priority.
This provision is even weaker than section 69 or 70 of the Sales Tax Act 1972 which have been held by the Federal Court in Abdul Samad and Kenneth Teh AhKian as not having created a priority. Even if Raja Arshad is still good law, the provision of section 103 of the Income Tax Act 1967 is nowhere near or similar to the provisions of section 21B(1)(a) of the Real Property Gains Tax Act 1976.
So, in my view, the respondent cannot rely on section 103 of the Income Tax Act 1967 to claim priority.
I do not think I have to discuss the effects of section 10 of the Government Proceedings Act 1956 as the Respondents did not rely on it. Even the learned Judge did not touch on it in his grounds of judgment. I believe the reason is that, as stated by learned counsel for the appellant, it is not applicable.
In the circumstances I hold that the income tax due to the Respondent has no priority over the claims of the debenture holders. The appeal should be allowed with costs here and in the court below and the deposit to be refunded.
Both my learned brothers, Mohd. Noor Ahmad J.C.A. and P.S. Gill J.C.A., have read this judgment in draft and have expressed their agreement.
5th November, 2002.
(DATO’ ABDUL HAMID BIN HAJI MOHAMAD)
Hakim Mahkamah Rayuan
Kuala Lumpur.
Bagi Pihak Perayu – Cik Shanti Mogan
Encik Rajkumar Mathusuthanan
Messrs Shearn Delamore & Co.
Bagi Pihak Responden – Encik Abu Tariq Jamaluddin
Encik Muazmir Mohd. Yusof
Pegawai Undang-Undang
Lembaga Hasil Dalam Negeri

COURT OF APPEAL, KUALA LUMPUR
MOKHTAR SIDIN, JCA; ABDUL HAMID MOHAMAD, JCA; MOHD NOOR AHMAD, JCA
CRIMINAL APPEAL NO: P-05-47-98
[2002] 4 CLJ 547

CRIMINAL PROCEDURE: Prosecution – Authority to conduct prosecution – Validity of prosecution conducted by officer from fisheries department – Whether consent to prosecute given by Public Prosecutor under s. 38(1) Exclusive Economic Zone Act 1984good in respect of offence under s. 15(1) Fisheries Act 1985- Whether Fisheries Act 1985 must be read together with Exclusive Economic Zone Act 1984 – Whether s. 38(1) Exclusive Economic Zone Act 1984ultra vires art. 145(3) Federal Constitution- Whether fisheries officer lawfully authorised to conduct prosecution

CONSTITUTIONAL LAW: Prosecution – Prosecution by authority other than Public Prosecutor – Validity of prosecution conducted by officer from fisheries department – Whether consent to prosecute given by Public Prosecutor under s. 38(1) Exclusive Economic Zone Act 1984good in respect of offence under s. 15(1) Fisheries Act 1985- Whether Fisheries Act 1985 should be read together with Exclusive Economic Zone Act 1984 – Whether s. 38(1) Exclusive Economic Zone Act 1984ultra vires art. 145(3) Federal Constitution- Whether s. 38(1) Exclusive Economic Zone Act 1984preserves exclusive power of Public Prosecutor to institute or to consent to Criminal proceedings – Whether fisheries officer lawfully authorised to conduct prosecution

The appellants were tried under s. 15(1) of the Fisheries Act 1985(‘FA85′) for fishing illegally in Malaysian waters. At the end of the prosecution’s case, counsel for the appellants applied to the magistrate for a stay of proceedings in order to refer to the High Court a question of law respecting the validity of the prosecution which was being conducted by an officer of the fisheries department. The magistrate refused the application and the appellants applied to the High Court. This was an appeal from the decision of the High Court dismissing the appellants’ application.
Held:
Per Abdul Hamid Mohamad JCA
[1]The FA85 should be read together with the Exclusive Economic Zone Act 1984 (‘EEZA84’). Both the Acts are interconnected; they contain cross-references to each other and have overlapping provisions. Thus, as the appellants were charged under s. 15(1) of the FA85, s. 38 of the EEZA84also came into play.
[2]Section 38(1) of the EEZA84states that “A prosecution for an offence under this Act or any applicable written law shall not be instituted except by or with the consent of the Public Prosecutor…”. Clearly, the words “or any applicable written law” contemplate, inter alia, prosecutions in respect of offences under the FA85.
[3] Unlike the provisions of some other statutes, s. 38(1) of the EEZA84does not attempt to usurp the powers of the Public Prosecutor. It does not abrogate the powers vested in the Public Prosecutor by art. 145(3) of the Federal Constitution, or confer parallel powers upon another person or authority. Section 38(1) of the EEZA84preserves the power of the Public Prosecutor to institute or to consent to criminal proceedings; it is consistent with art. 145(3) of the Federal Constitutionand, therefore, valid. Accordingly, the consent given by the Public Prosecutor to the fisheries officer under s. 38(1) of the EEZA84to prosecute the appellants was valid. The officer was lawfully authorised to conduct the prosecution.
[Bahasa Malaysia Translation Of Headnotes
Perayu-perayu telah dibicarakan di bawah s. 15(1) Akta Perikanan 1985(‘FA85’) kerana menangkap ikan secara salah di sisi undang-undang di perairan Malaysia. Pada penghujung kes pihak pendakwaan, peguam bagi pihak perayu-perayu telah memohon kepada majistret untuk satu penggantungan prosiding demi untuk merujuk kepada Mahkamah Tinggi satu persoalan undang-undang berkenaan keesahan pendakwaan yang dikendalikan oleh seorang pegawai dari jabatan perikanan. Majistret telah menolak permohonan tersebut dan perayu-perayu telah memohon kepada Mahkamah Tinggi. Ini adalah satu rayuan daripada keputusan Mahkamah Tinggi yang menolak permohonan perayu-perayu.
Diputuskan:
Oleh Abdul Hamid Mohamad HMR
[1]FA85 haruslah dibaca bersama dengan Akta Zon Ekonomi Eksklusif 1984 (‘EEZA84′). Kedua-dua Akta tersebut adalah saling berkaitan; mereka mengandungi rujukan-rujukan bersaling dengan satu dan yang lain dan mempunyai peruntukan-peruntukan bertindih. Oleh itu, oleh kerana perayu-perayu adalah dituduh di bawah s. 15(1) FA85tersebut, maka s. 38 EEZA84juga digunakan.
[2]Seksyen 38(1) EEZA84tersebut menyatakan bahawa “A prosecution for an offence under this Act or any applicable written law shall not be instituted except by or with the consent of the Public Prosecutor…”. Jelasnya perkataan-perkataan “or any applicable written law” mengura-urakan, antara lainnya, pendakwaan-pendakwaan berhubung dengan kesalahan-kesalahan di bawah FA85.
[3] Tidak seperti peruntukan-peruntuklan beberapa statut yang lain, s. 38(1) EEZA84tidak cuba untuk merampas kuasa-kuasa Pendakwa Raya. Ianya tidak mengabrogasikan kuasa-kuasa yang diletakhak pada Pendakwa Raya oleh per. 145(3) Perlembagaan Persekutuan, atau memberikan kuasa yang selari ke atas seorang yang lain atau pihak berkuasa yang lain. Seksyen 38(1) EZA84mengekalkan kuasa Pendakwa Raya untuk memulakan atau membenarkan prosiding jenayah; ianya konsisten dengan per. 145(3) Perlembagaan Persekutuandan, oleh itu, adalah sah. Sehubungan itu, kebenaran yang diberikan oleh Pendakwa Raya kepada pegawai perikanan di bawah s. 38(1) EEZA84untuk mendakwa perayu-perayu adalah sah. Pegawai tersebut telah diberi kuasa secara sah di sisi undang-undang untuk mengendalikan pendakwaan tersebut.
Rayuan ditolak; perbicaraan hendaklah diteruskan.]
[Appeal from High Court, Pulau Pinang; Criminal Application No: 44-4-98]
Reported by Gan Peng Chiang

Case(s) referred to:
Kyohei Hosoi v. PP [1998] 1 CLJ 1063 (dist)
Nguang Chan Sdn Bhd v. PP [2001] 2 CLJ 16 (dist)
PP v. Lee Ming & Anor [1999] 1 CLJ 379 (dist)
PP v. Manager, MBf Building Services Sdn Bhd [1998] 1 CLJ 678 (refd)
Quek Gin Hong v. PP [1998] 4 CLJ Supp 515 (dist)
Rajendran M Gurusamy v. PP [2001] 1 CLJ 631 (dist)
Repco Holdings Bhd v. PP [1997] 4 CLJ 740 (dist)

Legislation referred to:
Criminal Procedure Code, s. 380(ii)(b)
Environmental Quality Act 1974, ss. 25, 37, 44
Environmental Quality (Clean Air) Regulations 1978, reg. 12
Exclusive Economic Zone Act 1984, ss. 2, 3(1), 6, 7, 8, 38
Federal Constitution, art. 145(3)
Fisheries Act 1985, ss. 2, 15(1), 19, 24(1), 25(a)
Forests Ordinance (Cap 126) (Sarawak), s. 92A
Immigration Act 1959/1963, s. 58(1), (2)
Road Transport Act 1987, ss. 116, 119(2)
Securities Commission Act 1993, s. 39
Securities Industry Act 1993, s. 126
Trade Description Act 1972, ss. 26(2), (3), 28B(3)
Counsel:
For the appellants – En Rajasingam (Raj Shanker); M/s R Rajasingam & Co
For the respondent – A Karim A Jalil (Nurulhuda Nur’aini Mohd Nor)

JUDGMENT
Abdul Hamid Mohamad JCA:
The appellants were charged at the Balik Pulau Magistrate’s Court for fishing in the Malaysian waters without an international agreement allowing the same nor a valid permit issued under s. 19 of the Fisheries Act 1985, thereby committing an offence under s. 25(a) of the Act.
At the end of the prosecution’s case, the appellants were called upon to enter upon their defences. At that stage, learned counsel for the appellants applied to the court (the Magistrate’s Court) that the trial be stayed and that the records of the proceedings be referred to the High Court for the determination of a question law on the validity of the prosecution which was conducted by an officer of the Fisheries Department, which was alleged to be void and unconstitutional. The learned magistrate refused the application.
The appellants then filed a notice of motion in the High Court at Penang (Permohonan Jenayah No. 44-4-98). The appellants prayed for the following orders:
a)that the prosecution of a charge under the Fisheries Act can only be conducted by the Public Prosecutor;
b)that the prosecution conducted by an officer of the Fisheries Department is void and ultra vires the Federal Constitution and that such proceedings are unlawful;
c)that all orders made by the magistrate in the case be set aside;
d)that all the accused persons in the case (the appellants) be acquitted (“dibebaskan”);
e)any other order(s) that the court deems fit and proper to make.
It is to be noted that the challenge is on the power of the Fisheries Officer to conduct the prosecution.
The learned judge dismissed the application. The appellants appealed to this court.
Judgment Of The Learned High Court Judge
The learned judge addressed his mind to two issues. First, whether the consent (“izin”) to prosecute given by the deputy public prosecutor (P1) was a valid consent. Secondly, whether the Fisheries Officer was authorized to conduct the prosecution of the appellants for the offence for which they were charged.
The first issue became relevant because the learned counsel for the appellants had argued that the consent had no legal effect because there was no provision in the Fisheries Act 1985 for the public prosecutor to give the consent.
On this question, the learned judge was of the view that, reading together the provisions of ss. 6, 8 and 38 of the Exclusive Economic Zone Act 1984 and s. 15(1) of the Fisheries Act 1985, consent of the public prosecutor was required for the prosecution of the appellants. That consent was given. The learned judge was also of the view that s. 38(1) of the Exclusive Economic Zone Act 1984 exists side by side and in harmony with the provision of art. 145(3) of the Federal Constitution. The learned judge concluded that the consent (P1) was valid and not unconstitutional.
On the second issue, learned counsel for the appellants and the deputy public prosecutor agreed that if the offence was a non-seizable offence, the Fisheries Officer had the power to prosecute. On the issue whether the offence was a non-seizable offence or not, the learned judge decided that it was a non-seizable offence.
The Appeal
Learned counsel for the appellants submitted that the crux of the appeal is whether a prosecution conducted by an officer from the Fisheries Department, particularly for an offence under s. 15(1) read together with s. 24(1) and punishable under s. 25(a) of the Fisheries Act 1985 is valid. In other words, the question is whether the officer was properly authorized to conduct the prosecution.
The learned counsel submitted that as there was no provision in the Fisheries Act 1985 authorizing the officer to prosecute, the Fisheries Act 1985 should not be read together with the Exclusive Economic Zone Act 1984, the prosecution had to rely on the provisions of s. 380(ii)(b) of the Criminal Procedure Code(prior to the amendment by the Criminal Procedure (Amendment) Act 1998 which came into effect on 1 April 1998), that s. 380(ii)(b) of the Criminal Procedure Code was ultra vires the constitution and, therefore, the officer was not authorized to prosecute and the prosecution was null and void.
Article 145(3) of the Federal Constitution reads:
145. (1)…
(2)…
(3) The Attorney General shall have power, exercisable at his discretion, to institute, conduct or discontinue any proceedings for an offence, other than proceedings before a Syariah Court, a native court or a court martial.
We shall now look at the case law. We begin with Repco Holdings Bhd v. PP[1997] 4 CLJ 740(2 October 1997). The first thing that should be noted about that case is that, even though it is a decision of Gopal Sri Ram, a judge of the Court of Appeal, it is a judgment of the High Court. The learned judge sat as a High Court judge to hear a reference by the Sessions Court.
That case concerns the constitutionality of s. 126 of the Securities Industry Act 1993and s. 39 of the Securities Commission Act 1993.
Section 126 of the Securities Industry Act 1993 reads:
126(1) No prosecution for any offence under this Act shall be instituted except with the consent in writing of the Public Prosecutor.
(2) A prosecution for any offence against any provision of this Act may be conducted by the Registrar or by any officer authorized in writing by the Registrar or by any officer authorized in writing by the Chairman of the Commission.
Section 39 of the Securities Commission Act 1993 reads:
39(1) No prosecution for any offence under this Act shall be instituted except with the consent in writing of the Public Prosecutor.
(2) Any officer of the Commission authorized in writing by the Chairman may conduct any prosecution or any offence under this Act.
The learned judge held:
Therefore, the impugned sub-sections are ultra viresArticle 145(3) of the FCsave as follows. Section 126(2), to the extent that it allows the Registrar of Companies (Registrar) to conduct a prosecution, is not ultra vires Article 145(3) of the FC, because such Registrar is normally a senior member of the Judicial and Legal Service who is normally gazetted as a Deputy Public Prosecutor (DPP). The Registrar therefore conducts the prosecution of an offence under the SIA in the capacity of a DPP. (See p. 749, e-i)
However the Chairman of the SC is not on an equal footing and cannot authorise or conduct prosecutions under the SIA. (See p. 749, e-i)
Section 39(2) of the SCA is void and unconstitutional as it wholly contravenes Article 145(3). (See p. 750, f).
It must be noted that the learned judge also held that the provisions of s. 126(2) “as originally cast” did not contravene art. 145(3), because of the careful way in which it was drafted.
It should be emphasised that the offending part of the new sub-s. (2) of s. 126 of the Securities Industry Act 1993is that part that gives power to the Chairman of the Commission to authorize an officer to prosecute. On the other hand, under the old sub-s. (2) of s. 126, the conduct of a criminal prosecution by an advocate and solicitor “with previous permission in writing of the Public Prosecutor” is valid. The determining factor is the existence of the “permission in writing of the Public Prosecutor.” In other words, so long as that permission emanates from the Public Prosecutor, the provision is valid. The Chairman of the Commission or anybody else should not usurp the function of the Public Prosecutor provided by art. 145(3).
The next case is PP v. Manager, MBf Building Services Sdn. Bhd.[1998] 1 CLJ 678(3 December 1997). In that case the defendant was charged with two offences under the Environmental Quality Act 1974. The Defendant objected to the proceedings on a preliminary point that no prosecution could be had against the defendant because the Act did not contain a provision providing for a sanction by the Attorney General to institute proceedings for offences under the Act. It was argued that the defendant could not be prosecuted for the offences as the Director General of Environmental Quality had no power to institute such proceedings. In other words, there should be a provision in the Act for either the sanction or consent of the Attorney General to institute criminal proceedings, otherwise it would allow a person other than the Attorney General to institute such proceedings and that is unconstitutional.
KC Vohrah J (as he then was) held that the lack of a provision in the Act providing for sanction by the Attorney General or his consent to institute proceedings for offences under the Act did not invalidate the Act.
The next case, in chronological order, is Kyohei Hosoi v. PP[1998] 1 CLJ 1063(8 December 1997). This is a judgment of Augustine Paul JC (as he then was). In that case, the impugned section was s. 58(2) of the Immigration Act 1959/1963which reads:
58(1)…
(2) No prosecution shall be instituted in respect of any offence against this Act without the sanction in writing of the Director General or of the Public Prosecutor or his Deputy.
The sanction to prosecute in that case was given by the Director General. So, following Repco, the learned Judicial Commissioner (as he then was) held that that subsection, in so far as it empowered the Director General to sanction the institution of a prosecution, was void.
Again it should be noted that what makes it void is the giving of the power to the Director General to sanction the institution of a prosecution, parallel to that of the Public Prosecutor. In simple words, do not take away the powers of the Public Prosecutor and give it to somebody else.
The next case is PP v. Lee Ming & Anor[1999] 1 CLJ 379(29 June 1998). This is a judgment of Ian Chin J. The provision in question is s. 92A of the Forests Ordinance (Sarawak Cap. 126) which reads:
92A. Prosecution in respect of offences under this Ordinance or by any subsidiary legislation made hereunder may be conducted by:
(a)The State Attorney General or any legally qualified officer authorized by him;
(b)The Director; or
(c)Any forest officer or any other public officer generally or specially authorized in that behalf by the Director.
The learned judge held that, following Repco Holdings Bhd., that section was unconstitutional, null and void as it allowed persons other than the Federal Attorney General to institute, conduct or discontinue proceedings for an offence.
About two months later, Suriyadi J decided the case of Quek Gin Hong v. Public Prosecutor[1998] 4 CLJ Supp 515; [1998] 4 MLJ Supp 161. In that case the accused was charged for allowing open burning of certain vegetation waste without a license contrary to reg. 12 of the Environmental Quality (Clean Air) Regulations 1978. He was convicted and sentenced to six months’ imprisonment. On revision, it was, inter alia, argued that s. 44 of the Environmental Quality Act 1974was ultra viresart. 145(3) of the Federal Constitution. Section 44 provides:
44. Prosecution in respect of offences committed under this Act or regulations made thereunder may be conducted by the Director General or any officer duly authorized in writing by him or by any officer of any local authority to which any powers under this Act has been delegated.
Held, setting aside the order and acquitting the accused:
(1) Section 44 of the Act which endowed the Director General with powers at par with the Public Prosecutor was void for inconsistency with art. 145(3) of the Federal Constitution(see pp. 164H-I and 165A); Repco Holdings Bhdv. PP [1997] 3 MLJ 681 followed. Therefore, any documented authorization emanating from the Director General was worthless and would not validate any shortcomings in the want of authority to prosecute (see p 165G-H).
In Rajendran a/l M. Gurusamy v. PP[2001] 1 CLJ 631(19 July 2000), the applicant was charged with an offence under s. 119(2) of the Road Transport Act 1987. The applicant objected before the magistrate that the police were not authorized by the Public Prosecutor to institute the proceedings. The relevant provision is s. 116 of the Actwhich provides:
116. Proceedings for an offence against this Act shall not be instituted or conducted except by or on behalf of the Public Prosecutor or by a police officer or traffic warden, Dato Bandar or a road transport officer, or as respects prosecution for an offence against any order or rules made by an appropriate authority under Part III, by an officer of that appropriate authority.
Abdul Wahab J held:
Section 116 of the Road Transport Actenvisaged that institution and conduct of prosecutions for offences under the Act and regulations thereunder by persons other than the Public Prosecutor…
To that extent it offends against the sole authority interpretation of Repco Holdings Bhd v. PP.
We now come to the judgment of this court in Nguang Chan Sdn. Bhd. v. PP[2001] 2 CLJ 16. The impugned section was s. 28B(3) of Trade Description Act 1972that reads:
(3) Any prosecution in respect of an offence under this Act may be conducted by an Assistant Controller.
Sections 26(2) and (3) of that Act, which was also considered, provides:
(2) The Controller shall subject to the general direction and control of the Minister have supervision in all matters relating to the enforcement of this Act and the Controller and the Deputy Controller shall perform such duties and exercise such powers and functions conferred upon him and upon an Assistant Controller by this Act.
(3) All officers appointed under this section shall be deemed to be public servants within the meaning of the Penal Code applicable.
This court held that s. 28B(3) was ultra viresart. 145(3) of the Federal Constitution. Lamin Mohd. Yunus PCA, delivering the judgment of the court said:
There is nothing to suggest from s. 28B(3) of the Trade Descriptions Act 1972that the Assistant Controller when acting under subsection (3) that he is obliged to get either written authorisation or consent from the Attorney-General or any Deputy Public Prosecutor. It appears he is allowed to act independently. However he is under general “supervision” by the Controller who in turn the Controller himself is under “the general direction and control of the Minister” when performing his functions such as supervising “in all matters relating to the enforcement of this Act.” (see s. 26(2))
It must be noted that in that case the prosecution was conducted by the Assistant Controller under a purported authority given to him by s. 28B(3) of that Act. He acted independently of the Public Prosecutor.
In our view, the judgments of the courts have been quite consistent. A provision giving the power to institute, conduct or discontinue a proceeding for an offence is unconstitutional and void if it is exercisable independently of, or if it is parallel to the powers vested in the Public Prosecutor by art. 145(3) of the Federal Constitution. Any authorization given pursuant to such (void) provision is void and the prosecution instituted and conducted by a person so authorized is void. However, so long as the power given to another person is subject to the powers of the Public Prosecutor under art. 145(3) of the Federal Constitution, it is valid.
What is the position in the present case? First, there is no provision in the Fisheries Act 1985 empowering an officer of the Fisheries Department to conduct the prosecution under the Act. Therefore, looking at that Act alone, the power for an officer of the Fisheries Department to conduct a prosecution must come from the Criminal Procedure Code, if any.
However the learned Deputy Public Officer argued (the learned judge agreed with him) that the Fisheries Act 1985 must be read together with the Exclusive Economic Zone Act 1984. The learned Deputy Public Prosecutor argued that if the two Acts were read together, then the provision of s. 38 was applicable. As that section retained the power of the Public Prosecutor to give a written consent for a prosecution and as such written consent was given by the Public Prosecutor in this case (P1), the prosecution conducted by that officer was valid.
Let us first look at the relevance of this argument.
The Fisheries Act 1985 does not contain a provision regarding the power to prosecute similar to s. 38 of the Exclusive Economic Zone Act 1984 or the other laws mentioned earlier. So, for power to prosecute one has to fall back on the provisions of the Criminal Procedure Code. On the other hand, if the two Acts are read together, then s. 38 of the Exclusive Economic Zone Act 1984 comes into play in which case a prosecution conducted pursuant to a consent given in compliance with the provision of that section is valid.
Should the two Acts be read together? The first thing we notice regarding the two Acts is that there are cross references in the two Acts to each other and overlapping provisions.
The preamble of the Fisheries Act 1985, inter alia, reads:
An Act relating to fisheries… in Malaysian fisheries waters… (emphasis added).
Section 15(1) of the Fisheries Act 1985 under which the appellants were charged in this case concerns fishing or attempt to fish by foreign fishing vessels in Malaysian fisheries waters.
Section 2 of the Fisheries’ Act 1985 defines “Malaysian fisheries waters” thus:
“Malaysian fisheries waters” means maritime waters under the jurisdiction of Malaysia over which exclusive fishing rights or fisheries management rights are claimed by law and includes the internal waters of Malaysia, the territorial sea of Malaysia and the maritime waters comprised in the exclusive economic zone of Malaysia;
Section 2 of the Fisheries Act 1985 also defines the “exclusive economic zone”:
“exclusive economic zone” means the exclusive economic zone of Malaysia as determined in accordance with the Exclusive Economic Zone Act 1984 (Act 311);
We now look at the Exclusive Economic Zone Act 1984.
Section 2 defines “Malaysian fisheries waters”:
Malaysian fisheries waters means all waters comprising the internal waters, the territorial sea and the exclusive economic zone of Malaysia in which Malaysia exercises sovereign and exclusive rights over fisheries.
Section 2 and 3(1) define and determine the “exclusive economic zone” of Malaysia.
Section 2 also defines the “territorial sea”:
Part III, containing sections 6, 7 and 8 is entitled “FISHERIES”.
Section 6 provides:
6. The seas comprised in the exclusive economic zone shall be part of Malaysian fisheries waters.
Section 7 provides:
7. The Minister charged with responsibility for fisheries shall also be responsible for fisheries in the exclusive economic zone.
Section 8 provides:
8. Except as otherwise provided in this Act any written law relating to fisheries shall be applicable in the exclusive economic zone and on the continental shelf with such necessary modifications or exceptions as may be provided in an order made under section 42.
From these provisions, we see the interconnection between the two Acts. Matters, including offences, relating to fisheries are provided in the Fisheries Act 1985, which is understandable. The Exclusive Economic Zone Act 1984 does not provide for offences relating to fisheries. That is also understandable. It makes the Minister charged with responsibility for fisheries responsible for fisheries in the exclusive economic zone, and for that purpose the “authorised officer” is defined as including “fisheries officer”, which is also understandable.
So, if an offence relating to fishing is committed in the Malaysian fisheries waters but also within the exclusive economic zone, it is the responsibility of the Minister charged with responsibility for fisheries. The authorised officers may exercise their powers provided by the Fisheries Act 1985 with a view to prosecution.
We now come to prosecution. Section 38 of the Exclusive Economic Zone Act 1984 provides:
38(1) A prosecution for an offence under this Act or any applicable written law shall not be instituted except by or with the consent of the Public Prosecutor:
Provided that a person who is to be charged with such an offence may be arrested, or a warrant for his arrest may be issued and executed, and any person so arrested may be remanded in custody or released on bail, notwithstanding that the consent of the Public Prosecutor too the institution of a prosecution for the offence has not been obtained, but the case shall not be further prosecuted until that consent has been obtained.
(2) When a person is brought before a court under this section before the Public Prosecutor has consented to the prosecution, the charge shall be read and explained to him but he shall not be called upon to plead thereto, and the provisions of the Criminal Procedure Code shall be modified accordingly. (emphasis added)
What is most significant are the words “or any applicable written law”. The section does not only talk about a prosecution for an offence under “this Act.”
“applicable written law” is defined in s. 2 of the Exclusive Economic Zone Act 1984:
2. In this Act, unless the context otherwise requires:
“applicable written law” means any written law:
(a) provided to be applicable in respect of the exclusive economic zone, continental shelf or both….
We have seen that in relation to fisheries, even though in the exclusive economic zone, the applicable written law is the Fisheries Act 1985. So, the words “A prosecution for an offence under… any applicable written law…” clearly refers, inter alia, to a prosecution for offences under the Fisheries Act 1985. We do not think there can be any other reasonable interpretation.
We shall now look closely at s. 38 and see whether, first, it is unconstitutional and secondly whether a written consent given pursuant to it is valid.
Regarding the first, sub-s. (1) provides that a prosecution shall not be instituted except by or with the consent of the Public Prosecutor. This provision is clearly distinguishable from the provisions of s. 126(2) of the Securities Industry Act 1993, s. 39(2) of the Securities Commission Act 1993(Repco Holdings Bhd.), s. 58(2) of the Immigration Act 1959/1963(Kyoshi Hasoi),s. 92A of the Sarawak Forests Ordinance (Lee Ming), s. 44 of the Environmental Quality Act 1974(Queck Gin Hong), s. 116 of the Road Transport Act 1987(Rajendran a/l Gurusamy)or even s. 28B(3) of the Trade Description Act 1972(Nguang Chan Sdn. Bhd.).
The material distinguishing feature is that the power of the Public Prosecutor is not taken away from him and given to somebody else. His powers remain intact. It is he and he alone who may institute or give consent for a prosecution. That is consistent with his powers under art. 145(3) of the Federal Constitution. In our judgment, s. 38(1) is constitutional. It is valid.
That being so, then the next question is whether a consent given by the Public Prosecutor to the Fisheries Officer, in this case, is a valid consent?
The answer is clearly in the affirmative. That section gives the Public Prosecutor power to give consent to prosecute. He has, in the exercise of that power given his consent. The officer, armed with that consent clearly is authorized to conduct the prosecution of the appellants. We are therefore of the view that the prosecution by the officer in this case is valid.
We do not think it is necessary to discuss the provisions of the Criminal Procedure Code. The Public Prosecutor did not have to rely on the provisions of the Criminal Procedure Code. The power is given by s. 38(1) of the Exclusive Economic Zone Act 1984. It is in the exercise of that power that he gave his consent.
In the circumstances, we dismiss the appeal and direct the learned magistrate to proceed with the trial.

ANG THEAM CHOOM v. PP
COURT OF APPEAL, KUALA LUMPUR
ABDUL HAMID MOHAMAD, JCA; K C VOHRAH, JCA; MOHD NOOR AHMAD, JCA
CRIMINAL APPEAL NO: R09-16-2001
25 OCTOBER 2002
[2002] 4 CLJ 538
CRIMINAL PROCEDURE: Judgment – Grounds of judgment – Error in magistrate’s written grounds – Inadvertent use of words on burden of proof – Whether a misdirection of law – Whether occasioning a miscarriage of justice – Whether conviction may still be upheld

CRIMINAL PROCEDURE: Prosecution – Authority to conduct prosecution – Whether prosecuting officer had authority to prosecute – Authority to conduct prosecution given after issuance and service of summons but before commencement of trial – Whether sufficient – Distinction between ‘instituting’ and ‘conducting’ a prosecution – Whether ‘conduct’ of a prosecution refers to the actual trial – Prosecution of Employer for failure to pay EPF of Employee – Employee’s Provident Fund Act 1991, ss. 43(2), 63(1)

The appellant/employer was charged and convicted under s. 43(2) of the Employees Provident Fund Act 1991(‘the Act’) for failing to contribute to the EPF of an employee as required under reg. 3 of the Employees Provident Fund Regulations 1991. The magistrate fined him RM500 pursuant to s. 43(2) of the Actand further ordered him to pay up RM802.00 with interest at 6.7% pa under s. 63(1) of the Act. The High Court upheld the decision and orders of the magistrate and the employer appealed further.
Held:
Per Abdul Hamid Mohamad JCA
[1] The learned judge was right in holding that the inadvertent use of the words “… the accused must prove beyond a reasonable doubt…” by the magistrate in his grounds of judgment did not amount to a fatal misdirection of law occasioning a miscarriage of justice. The magistrate had obviously meant to say “… the prosecution must prove beyond a reasonable doubt…”. This became evident when in a later part of his judgment the magistrate said “… the accused had failed to raise a reasonable doubt on the prosecution’s case…”.
[2] There was absolutely no basis to the employer’s contention that the order of the magistrate (directing him to pay up RM802 pursuant to s. 63(1) of the Act) was unconstitutional. It was clear that there was no necessity for the prosecution to state that amount in the charge. In any event, the employer had every opportunity to dispute the said amount in court.
[3] The employer’s submission that the prosecuting officer had no ‘authority to conduct the prosecution’ against him was misconceived. Even if the authority to conduct the prosecution was given after the summons had been issued and served on the employer, it was, nevertheless, given to the prosecuting officer before the commencement of the trial. This was sufficient. The ‘institution’ of a criminal proceeding may be distinguished from the ‘conduct’ of one; the former refers to the preliminary stages whilst the latter refers to the actual ‘trial’ stage wherein witnesses are called.
[Bahasa Malaysia Translation Of Headnotes
Perayu/majikan telah dituduh dan disabitkan di bawah s. 43(2) Akta Kumpulan Wang Simpanan Pekerja 1991(‘Akta tersebut’) kerana gagal menyumbang kepada KWSP bagi seorang pekerja sepertimana yang dikehendaki di bawah per. 3 Peraturan-Peraturan Kumpulan Wang Simpanan Pekerja 1991. Majistret telah mendenda beliau RM500 selaras dengan s. 43(2) Akta tersebut dan selanjutnya memerintahkan beliau supaya membayar RM802 dengan faedah pada kadar 6.7% setahun di bawah s. 63(1) Aktatersebut. Mahkamah Tinggi telah mempertahankan keputusan dan perintah-perintah majistret dan majikan tersebut telah merayu selanjutnya.
Diputuskan:
Oleh Abdul Hamid Mohamad HMR
[1] Hakim yang bijaksana adalah betul dalam mempertahankan bahawa penggunaan secara tidak sengaja perkataan-perkataan “… the accused must prove beyond a reasonable doubt…” oleh majistret dalam alasan-alasan penghakiman beliau tidak membawa kepada salah-arahan undang-undang yang memudaratkan yang menyebabkan salahlaksana keadilan. Majistret tersebut telah nyatanya bermaksud untuk menyebut “… the prosecution must prove beyond a reasonable doubt…”. Ini menjadi jelas apabila pada bahagian yang terkemudian dalam penghakiman beliau majistret tersebut mengatakan “… tertuduh telah gagal untuk membangkitkan keraguan yang wajar pada kes pendakwaan…”.
[2] Adalah tidak terdapat sebarang asas kepada penegasan majikan bahawa perintah majistret tersebut (yang mengarahkan beliau supaya membayar RM802 selaras dengan s. 63(1) Aktatersebut) adalah tidak berpelembagaan. Adalah jelas bahawa tidak terdapat sebarang keperluan bagi pihak pendakwaan untuk menyatakan jumlah itu di dalam pertuduhan tersebut. Dalam sebarang keadaan, majikan tersebut mempunyai setiap peluang untuk mempertikaikan jumlah tersebut di dalam mahkamah.
[3] Hujahan majikan tersebut bahawa pegawai mendakwa tiada ‘authority to conduct the prosecution’ terhadap beliau adalah disalahtafsirkan. Meskipun jika kuasa untuk mengendalikan pendakwaan telah diberikan selepas saman telah dikeluarkan dan disampaikan ke atas majikan, ianya namun begitu diberikan kepada pegawai yang mendakwa sebelum permulaan perbicarfaan. Ini adalah memadai. “Permulaan” prosiding jenayah boleh dibezakan daripada ‘pengendalian’ sesuatu prosiding; yang terdahulu merujuk kepada peringkat awal sementara yang terkemudian pula merujuk peringkat ‘trial’ sebenarnya di mana saksi-saksi dipanggil.
Rayuan ditolak.]
Case(s) referred to:
PP v. Datuk Harun Idris & Ors [1976] 1 LNS 180; [1976] 2 MLJ 116 (refd)
Legislation referred to:
Criminal Procedure Code, ss. 177A, 377, 422(b)
Employees Provident Fund Act 1991, ss. 43(2), 63(1)
Employees Provident Fund Regulations 1991, reg. 3
For the appellant – Mohamad Afza Dahari; M/s Jayadeva & Kamal
For the respondent – Kamarul Hisham Kamaruddin DPP
Reported by Gan Peng Chiang
JUDGMENT
Abdul Hamid Mohamad JCA:
The appellant was charged in the Magistrate’s Court for failing to make the EPF contribution of his employee, Norma bt Seman, for the month of February 1991, as required by reg. 3 of the Employees Provident Fund Regulations 1991, thereby committing an offence punishable under s. 43(2) of the Employees Provident Fund Act 1991. On 10 June 1991 he was found guilty, convicted and sentenced to a fine of RM500 in default 14 days imprisonment. He was also ordered to pay a sum of RM802 and interest thereon at 6.7% per annum until full and final payment, under s. 63(1) of the Act. This amount was the amount of the contribution in respect of the same employee that should have been paid but was not paid. He appealed to the High Court which dismissed the appeal. Having obtained leave of this court, he appealed to this court.
(To avoid any confusion, it is important to note that this appeal arises from the Kangar Magistrate’s Court Summons Case No. 87-423-97. There was another proceeding against him vide Kangar Magistrate’s Court No. 87-162-95. That case is not the subject matter of this appeal.)
The Petition of Appeal filed in respect of the appeal to this court contains three grounds:
(1) Yang Arif Hakim, telah terkhilaf dari segi undang-undang apabila memutuskan bahawa tahap beban bukti melampaui keraguan munsabah yang ditetapkan oleh Tuan Majistret terhadap perayu tidak fatal dan bukanlah suatu yang salah arah di dalam undang-undang.
(2) Yang Arif Hakim telah terkhilaf dari segi undang-undang apabila membenarkan perintah yang dibuat di bawah seksyen 63 Akta Kumpulan Wang Simpanan Pekerjawalaupun ia bercanggah dengan Perlembagaan Malaysia apabila Perayu tidak diberi peluang untuk membuat pembelaan dan tidak ada di dalam pertuduhan.
(3)Yang Arif Hakim telah terkhilaf dari segi undang-undang apabila memutuskan bahawa perbicaraan adalah sah walaupun ia dijalankan oleh pihak yang bukan dari pihak pendakwaraya dan bercanggah dengan Perlembagaan Malaysia.
First Ground
The first ground concerns the standard of proof. The learned magistrate had said in his grounds of judgment “Orang Kena Saman mesti buktikan melampaui keraguan munasabah”. However, he later said, “Orang Kena Saman telah gagal menimbulkan keraguan munasabah atas kes pendakwaan.”
The learned judge held that the unfortunate use of the words in the first quoted sentence above was not fatal to the decision of the learned magistrate. He noted that subsequently the learned magistrate “had also quite correctly used the words” in the second quoted sentence above. The learned judge went on to say:
The wrong choice of words does not constitute a misdirection of law. This issue could be resolved only after taking into consideration the evidence as a whole. (See Shamugam Munusamy v. PP [1999] 1 CLJ 783; and MohamadJalani bin Saliman v. PP [1998] 1 CLJ 123). Incorrect choice of words by the Magistrate does not negate his decision unless there occurred a miscarriage of justice. What is clear from the notes of evidence in the instant case is that the learned Magistrate had directed himself and applied the correct standard of proof at the end of the prosecution case as well as the defence case. The Appellant had said that he had pleaded guilty to a charge in case no. 87-162-95 for non-payment of EPF dues and was ordered to pay the arrears of contributions for period January 1990 to January 1993, and did pay RM4,600 in respect of an employee named Nasir b. Yatim and Norma bt. Seman for January 1993. He was then given a breakdown statement of the respective amounts due before he was charged in case no. 87-162-95. In this case, he was charged for non-contribution of EPF in respect of a worker name Norma bte Seman for January 1991 wages due in February 1991. His only defence was that his above payment of RM4,6000.00 in respect of case 87-162-95 also covered Norma for her January 1991 wages. He laboured under his own misconception which later proved to be unfounded. The Appellant did not inform the EPF authorities that Norma was also employed by them before December 1992 (see exh P4 at page 82 of RR). Thus, it was only after the charge under case no. 87-162-95 was preferred that the authorities, upon further investigations, discovered that Norma was also working in January 1991. Consequently, based upon the complaint statement of Norma, the EPF authorities leveled the charge against the Appellant in the subsequent instant case. The Appellant failed to show any prove that he had settled the EPF contribution for Norma in respect of her January 1991 wages.
Clearly, in this matter the magistrate had made a finding of fact (see page 63 to 66 AR) and it is trite that an appellate court is averse to disturb a finding of fact unless such finding is clearly perverse and has led to a miscarriage of justice which was not the case here. (See PP v. Wan Razali Kassim [1970] 2 MLJ 79; PP v. Munusamy [1980] 2 MLJ 133 and Law Tim Wah v. PP [1978] 1 MLJ 167.)
We agree with the learned judge. It is very clear from the context that the words “Orang Kena Saman” were somehow used in place of the words “Pihak Pendakwaan”. The fact that he meant the prosecution is clear from the following sentence when he talked about the “Orang Kena Saman” (meaning the appellant) having failed to raise a reasonable doubt, which as the learned judge said, and we agree, is correct.
As stated by the learned judge the case did not involve complicated facts. The issue is whether the appellant paid his EPF contribution in respect of his employee Norma bte Seman for January 1991 wages due in February 1991 or not. On the facts the learned magistrate was satisfied that he had not. The learned judge was of the view that he should not disturb the findings of facts of the trial magistrate. This court too has no reason to disturb that finding of facts.
Second Ground
The second ground concerns the order made by the learned magistrate ordering the appellant to pay RM802 and interest thereon for arrears of the contributions as provided by s. 63(1) of the Act. Section 63(1), prior to the amendment by the Employees Provident Fund (Amendment) Act 2000 (Act A1080)) reads:
(1) Notwithstanding the provisions of any other written law, where an employer is guilty of an offence under section 43(2)or section 48(3), the Court before which the employer is found guilty shall order such employer to pay to the Fund the amount of contributions, together with any dividend credited thereon, due and payable to the Board and certified by an officer authorized by the Board to be due from such employer, prior to the date of such finding of guilt.
The argument of the learned counsel appears to be that the order is unconstitutional as the appellant was not given an opportunity to defend himself and the amount was not stated in the charge. His written submission on this point consists of one sentence which consists of the ground stated in the preceding sentence. No argument was put forward. No elaboration was given. No authority was shown to us.
If the learned counsel wants to put forward a proposition of law, he must substantiate it with reasons and authorities. We do not even know on what grounds he made the proposition and on what authorities, if there are. We do not think we should step into his shoes and substantiate his proposition for him.
Be that as it may, it must be remembered that the argument is that the order is unconstitutional. As we understand him, he did not say that s. 63 of the Actwas unconstitutional. His two reasons for the argument are, first, the appellant had no opportunity to defend himself and secondly, the amount was not stated in the charge. We shall only confine ourselves to these two narrow grounds.
The point is, the appellant was not charged for a criminal offence for failure to pay the other amount due. That is why the amount was not stated in the charge. The question of “defending” himself did not arise. That section provides for a consequential order for the payment of the amount of contributions due and payable to the Board and certified by an officer authorized by the Board to be due from such employer prior to the date of such finding of guilt. All that the section requires is that the amount must be certified by an officer authorised by the Board. That is to ensure the correctness of the amount. The “Jadual Tunggakan Caruman” was produced as exh P4. The two amounts of RM572 on p. 65 and RM230 on the following page add up to RM802. It was signed by the “Pemeriksa Kanan, KWSP Negeri Perlis”. Both amounts are in respect of Norma binti Seman, the employee named in the charge. In fact in a letter dated 17 November 1997 by the same officer to the appellant, the appellant was informed that he had failed to pay the EPF contributions of Norma bt Seman totaling RM802. He was told to pay within 14 days.
Clearly he did not pay as directed. Whatever it is, he cannot claim that he did not know about it, or could not have disputed it, if he was of the view that the amount was wrong. Again he had the opportunity to dispute it when the account was produced in court. He had himself to blame. So this ground too is without merit.
Third Ground
In both his written and oral submissions, the learned counsel for the appellant addressed us only on one point on this issue. He submitted that the authority to conduct the prosecution was only given on 3 June 1998. The trial commenced on 14 August 1998. However, he pointed out to the charge sheet where in the column “Name of Complainant, if any” the name Mohd. Termizi bin L. Karim appears. He submitted that Mohd. Termizi was not a deputy public prosecutor nor a person empowered to prosecute.
This argument can be disposed off immediately. As the wording in the column clearly says, Mohd. Termizi was the complainant, the person who made the complaint to the magistrate. The “pengaduan” (complaint) which is to be found in the record of appeal also shows that he was the complainant, not the prosecuting officer.
The learned counsel for the appellant also pointed out to the column “Date of first appearance” in the charge sheet in which the figures “15/5” were written. He submitted that prosecution had commenced by then but the authority to conduct the prosecution was only given on 3 June 1998. For the purpose of this argument we will assume that “15/5” means “15/5/98”. So, it appears that the authority to conduct the prosecution was given after the summons had been issued and served but before the actual trial (meaning, the day the prosecution started calling its witnesses) began. In our view the cases on sanction should be distinguished. Where sanction is required, no prosecution can commence unless it is sanctioned by the public prosecutor. Even then, under the circumstances provided in s. 422(b) of the Criminal Procedure Code, want of sanction is excused. In the case of “consent to prosecute”, no prosecution shall be instituted except by or with the consent of the Public Prosecutor s. 177A of the Criminal Procedure Code. But want of consent is not excused by s. 422 of the Criminal Procedure Code.
In our view, the prosecution cannot be instituted unless the consent or sanction is given (in the case of sanction, subject to s. 422(b)). But, in the present case, it is the authority to conduct the prosecution that is in issue. In our view, so long as it is given, in this case, before the trial began, it should be sufficient. It is at the trial stage that one really “conducts” the prosecution.
Support for this proposition is found in the judgment of Abdoolcader J (as he then was) in Public Prosecutor v. Datuk Harun bin Idris & Ors[1976] 1 LNS 180; [1976] 2 MLJ 116:
Pursuing its significance, ‘to conduct’ means to lead, guide, manage (In re Bhupalli Malliah (AIR [1959] And Pra. 477); Pride of Derby v. British Celanese Ltd. ([1953] 1 Ch. 149) at p. 167 per Lord Evershed MR). It conveys the idea of leading and guiding, that is to say, the person who conducts the prosecution determines all important questions of policy involved in the course of the trial and the attitude to be adopted by the prosecution towards material objections raised or demands made by the accused with respect to the evidence. (emphasis added).
Perhaps we may add that “to institute” a proceeding should be distinguished from “to conduct” a proceeding. Institution is the earlier stage while “conducting” is the later stage, more properly refers to the trial stage.
In this case, as the prosecuting officer was in fact given the authority to conduct the prosecution of the appellant, he had the authority to do so.
As the learned counsel for the appellant had chosen to argue this appeal on this narrow issue, ie, the prosecuting officer had no authority to conduct the prosecution, we see no reason why we should go any further and consider the issue of the constitutionality of s. 377 of the Criminal Procedure Code(as amended by the Criminal Procedure (Amendment) Act 1998 (Act A1015).
On these grounds we dismiss the appeal and confirm the order of the High Court and the Magistrate’s Court.

COURT OF APPEAL, KUALA LUMPUR
ABDUL HAMID MOHAMAD, JCA; MOHD SAARI YUSOFF, JCA; MOHD NOOR AHMAD, JCA
CIVIL APPEAL NO: W-01-02-1999
[2002] 4 CLJ 85
POLICE: Disciplinary proceedings – Dismissal – Delay by Police Commission in making decision to dismiss police officer – Whether Commission decided ‘with all convenient speed’ – Meaning of ‘with all convenient speed’ – Whether Commission must inform police officer as to which of the charges against him was his dismissal founded upon – Interpretation Acts 1948 & 1967, s. 54(2)- Public Officers (Conduct & Discipline) Regulations 1993 – Public Officers (Conduct & Discipline) (Chapter D) General Orders 1980

ADMINISTRATIVE LAW: Public servants – Dismissal – Police officer – Delay by Police Commission in making decision to dismiss police officer – Whether Commission decided ‘with all convenient speed’ – Meaning of ‘with all convenient speed’ – Whether Commission must inform police officer as to which of the charges against him was his dismissal founded upon – Interpretation Acts 1948 & 1967, s. 54(2)- Public Officers (Conduct & Discipline) Regulations 1993 – Public Officers (Conduct & Discipline) (Chapter D) General Orders 1980

WORDS & PHRASES: “with all convenient speed” – Interpretation Acts 1948 & 1967, s. 54(2)- Meaning of – Within a reasonable time having regard to the peculiar facts and circumstances of the case

This was the plaintiff’s appeal from the decision of the High Court disallowing his action for a declaration that his dismissal from the force as an Assistant Superintendent of Police was null and void. The principal grounds of appeal were that: (i) there was a 20-month delay before the Police Commission made its decision to dismiss the plaintiff; and (ii) the plaintiff was never informed as to which of the three charges against him was his dismissal founded upon.
Held:
Per Abdul Hamid Mohamad JCA
[1] Since the Public Officers (Conduct & Discipline) Regulations 1993 does not stipulate a time limit within which the Police Commission had to make its decision on the plaintiff’s case, such a decision must, in keeping with s. 54(2) of the Interpretation Acts 1948 & 1967, be made “with all convenient speed” which phrase, according to decided authorities, means ‘within a reasonable time having regard to the peculiar facts and circumstances of the case’. In the instant case, the learned judge had considered the various, exacting duties of the members of the Police Commission, which included inter alia the Minister of Home Affairs, the President of the Court of Appeal and the Inspector General of Police, and rightly concluded that the Police Commission had made its decision with all convenient speed.
[2] There is no requirement in the Public Officers (Conduct & Discipline) (Chapter D) General Orders 1980, or in any other law, that the Police Commission must inform the plaintiff as to which of the three charges his dismissal was founded upon.
[Bahasa Malaysia Translation Of Headnotes]
Ini adalah rayuan plaintif terhadap keputusan Mahkamah Tinggi kerana menolak permohonan plaintif untuk deklarasi bahawa pemecatannya dari jawatan Penguasa Polis adalah batal dan tak sah. Alasan-alasan penting rayuan adalah bahawa: (i) terdapat kelengahan selama 20 bulan sebelum Suruhanjaya Polis membuat keputusan untuk memecatnya; dan (ii) beliau tidak diberitahu tentang pertuduhan manakah, di antara tiga pertuduhan yang dihadapkan kepadanya, yang menjadi asas kepada pemecatannya.
Diputuskan:
Oleh Abdul Hamid Mohamad HMR
[1] Oleh kerana Peraturan Pegawai-pegawai Awam (Kelakuan dan Disiplin) 1993 tidak menetapkan suatu tempoh dalam mana Suruhanjaya Polis perlu membuat keputusan terhadap kes plaintif, maka, bersesuaian dengan s. 54(2) Akta-Akta Pentafsiran 1948 & 1967, keputusan tersebut hendaklah dibuat ‘dengan kepantasan yang patut’ yang mana, mengikut keputusan autoriti-autoriti, bermaksud ‘dalam masa yang munasabah dengan mengambilkira fakta khusus dan halkeadaan kes’. Dalam kes di sini, hakim perbicaraan telah mengambilkira keperbagaian dan beban tugas yang dipikul oleh anggota-anggota Suruhanjaya Polis, yang antara lain termasuk Menteri Dalam Negeri, Presiden Mahkamah Rayuan dan Ketua Polis Negara, dan telah memutuskan dengan betul bahawa Suruhanjaya Polis telah membuat keputusan dengan kepantasan yang patut.
[2] Tidak ada peruntukan dalam Perintah Am Pegawai-pegawai Awam (Kelakuan dan Disiplin) (Bab ‘D’) 1980, atau mana-mana undang-undang sekalipun, yang mengkehendakki Suruhanjaya Polis memberitahu plaintif berkenaan pertuduhan yang manakah di antara tiga pertuduhan tersebut yang menjadi asas kepada pemecatannya.
[Rayuan plaintif ditolak.]
Legislation referred to:
Interpretation Acts 1948 and 1967, s. 54(2)
Reported by Gan Peng Chiang
Case(s) referred to:
Ghazi Mohd Sani v. Mohd Haniff Omar, Ketua Polis Negara Malaysia & Anor [1994] 2 CLJ 333 (refd)
SK Serajah v. State of West Bengal AIR [1975] SC 1517 (refd)
Tai Choi Yu v. Government of Malaysia [1994] 2 CLJ 174 (foll)

Counsel:
For the plaintiff – Karpal Singh; M/s Karpal Singh & Co
For the respondent – Azizah Nawawi

JUDGMENT
Abdul Hamid Mohamad JCA:
The appellant was the plaintiff in the High Court. He filed a suit against the respondents seeking a declaration, in brief, that his dismissal as a police officer was null and void, and consequential orders. The High Court dismissed his action. He appealed to this court. We dismissed the appeal. Here are our grounds.
The appellant joined the Police Force in 1960. He rose to the rank Assistant Superintendent of Police (ASP). He held this rank until his dismissal.
On 30 September 1994, a show cause letter with a view to disciplinary action against him was forwarded to him. On 17 November 1994 the appellant made a written representation to the first respondent. By a letter dated 9 August 1996, the appellant was informed that he was dismissed from the force with effect form 29 June 1996. At the time when he received the letter of dismissal, he had passed his mandatory retirement age which fell on 7 July 1996 but his services were extended until the day the decision to dismiss him was made.
Two grounds were argued before us. The first ground was the delay of one year and eight months for the first respondent to make its decision to dismiss the appellant. The second ground was that the appellant was not informed on which of the three charges he was dismissed.
This is one appeal in which we agree entirely with the decision and the reasons thereto of the learned judge that we do not think it is necessary to repeat the same reasons at length.
The relevant provision is the Public Officers (Conduct and Discipline) Regulations 1993, in so far as it is relevant to the facts of this case, provides:
If… the officer furnishes a representation which does not exculpate himself to the satisfaction of the appropriate Disciplinary Authority, the Disciplinary Authority shall then proceed to consider and decide the dismissal… of the officer.
No time limit is provided for the decision to be made.
Section 54(2) of the Interpretation Acts 1948 and 1967inter alia, provides:
Where no time is prescribed within which anything shall be done, that thing shall be done with all convenient speed….
As correctly pointed out by the learned judge, quoting Bhagwal J in SK Serajah v. State of West Bengal AIR [1975] SC 1517:
Each case must depend on its own peculiar facts and circumstances.
Our own Supreme Court, in Tai Choi Yu v. Government of Malaysia[1994] 2 CLJ 174, has held:
What is ‘convenient speed’ has been held by the courts to mean reasonable time within which an act has to be done, but always having regard to the facts and peculiar circumstances of each case.
We accept that that is the law.
The facts and circumstances of this case were discussed at length by the learned judge. He considered them under two heads, first, the constitution of the members of the Commission and secondly, the administrative machinery of the Commission.
Regarding the constitution of the Commission, as pointed out by the learned judge, it consists of nine members, headed by the Prime Minister of Malaysia in his then capacity as Minister of Home Affairs. The other members were the Inspector General of Police, the President of the Court of Appeal and six other notable personalities. DW1, the Assistant Secretary of the Commission explained the procedures of the decision making process: The relevant documents were forwarded to the members of the Commission who had to study them and return them to the Commission Secretariat with their views. The views subsequently received from the members were “processed” and the decision would then be forwarded to the Chairman of the Commission.
The learned judge considered the extremely heavy duties of the members and the fact that the Commission’s Secretariat was handling a great number of disciplinary cases and concluded that the Commission had discharged its duties within a reasonable time or, in the words of s. 54 of the Interpretation Acts”with all convenient speed”.
We agree with him.
On the second ground, it was argued that the appellant should have been told on which charge(s) he was dismissed. On this ground also we agree entirely with the decision and the reasons thereto given by the learned judge, although the learned judge had misstated that the Commission accepted the appellant’s representation on the first charge but not on the second and third charges for which he was dismissed. In fact, according to DW1, the Commission accepted the appellant’s representation as to the third charge but not on the first and second charges. We agree with the learned judge that there is no requirement in Chapter D of the 1980 General Orders, or for that matter, in any law, that such a decision must be communicated to the appellant. We would like to reiterate what Jemuri Serjan CJ (Borneo), delivering the judgment of the Supreme Court, said in Ghazi bin Mohd. Sani v. Mohd. Haniff bin Omar, Ketua Polis Negara Malaysia & Anor[1994] 2 CLJ 333, which was also referred to by the learned judge:
In dealing with Ch. D of the 1980 General Orders we remind ourselves that we are dealing with General Orders that have legislative effect and we must guard ourselves against adding words into them which were never intended.
We would add that, in dealing with tribunals like the Police Commission, we should also guard ourselves from turning them into a court of law trying a criminal case, which they were not, and was never intended to be.
On these grounds we dismissed the appeal with costs and ordered that the deposit be paid to the respondents towards taxed costs.

AMERICAN INTERNATIONAL ASSURANCE COMPANY LTD v. KOH YEN BEE
COURT OF APPEAL, KUALA LUMPUR
ABDUL HAMID MOHAMAD, JCA; MOHD SAARI YUSOFF, JCA; MOHD NOOR AHMAD, JCA
CIVIL APPEAL NO: J-02-143-00
16 AUGUST 2002
[2002] 4 CLJ 49

AGENCY: Termination – Revocation by principal – Agency revoked on 15 days’ notice without reasons assigned – Whether just and equitable – Whether ss. 158& 159 Contracts Act 1950applicable – Whether s. 158only covers fixed-term agency Contracts – Whether application of s. 159 subject to s. 158- Whether agency Contract valid – Natural justice – Audi alteram partem – Suitability and application of in private Contracts – Distinction between principal/agent relationship and Employer/Employee relationship – Doctrine of estoppel – Inequality of bargaining power – Compensation for termination of agency, calculation of and reasonable notice

CONTRACT: Agency – Termination – Revocation by principal – Agency revoked on 15 days’ notice without reasons assigned – Whether just and equitable Whether ss. 158& 159 Contracts Act 1950applicable – Whether s. 158only covers fixed-term agency Contracts – Whether application of s. 159subject to s. 158- Whether agency Contract valid – Natural justice – Audi alteram partem – Suitability and application of in private Contracts – Distinction between principal/agent relationship and Employer/Employee relationship – Doctrine of estoppel – Inequality of bargaining power – Compensation for termination of agency, calculation of and reasonable notice

CONTRACT: Inequality of bargaining power – Applicability under Malaysian common law – Considerations – Contracts Act 1950, s. 14- Civil Law Act 1956, s. 3(1)- Judicial ‘legislation’ on substantive law with retrospective effect – Uncertainty in the law – Freedom of parties to Contract

WORDS & PHRASES: “continued for any period of time” – Contracts Act 1950, s. 158- Whether only covers fixed-term agency Contracts – Whether all agency Contracts continuing for any period of time are covered

This was an appeal by the appellant/insurance company (‘the principal’) from the decision of the High Court allowing the claim of the respondent/insurance agent (‘the agent’) against the principal for terminating the agency contract between the two parties. The High Court had found that the termination of the agency by the principal based upon cl. 26(b) of the agency contract was without sufficient cause and without reasonable notice and thus contrary toss. 158and 159 of the Contracts Act 1950(‘the Act’) respectively; that no reasons were given by the principal to the agent for the termination of the agency; and that the termination of the agency was in bad faith, unlawful, unfair and unjust, and in contravention of the rules of natural justice. In the upshot, the learned judge awarded the agent RM3 million for loss of earnings. The issues central to the principal’s instant appeal were: (i) whether cl. 26(b) of the agency contract which provided that “… this agreement may be terminated without giving any reason thereof… by either party upon 15 days’ notice in writing…” was valid in the face of ss. 158and 159 of the Act; (ii) whether the rules of natural justice, in particular the audi alteram partem rule, were applicable; (iii) whether the conduct of the principal leading up to the termination of the agency was such that it ought to be estopped from enforcing its strict contractual rights under cl. 26(b) of the agency contract; and (iv) the applicability of the doctrine of inequality of bargaining power under Malaysian common law.
Held:
Per Abdul Hamid Mohamad JCA (majority)
[1] The phrase “… contract that the agency should be continued for any period of time…” in s. 158 of the Actmeans ‘an agency contract for a fixed or definite period of time’. Thus, as the agency contract between the principal and the agent was not one for a fixed period of time, s. 158 of the Actwas not applicable and the remedies provided therein were not available to the agent. Furthermore, the operation of s. 159 of the Actis subject to s. 158which precedes it; it followed, therefore, that s. 159 of the Actwas also not applicable to the agency contract herein. Consequently, cl. 26(b) of the agency contract was valid under the law of contract.
[2] The rules of natural justice which are applicable to public bodies should not be applied to a purely contractual relationship. Judges should be slow in extending such doctrines into the world of business. Business management cannot be equated with the administration of justice. The economy of the country may grind to a halt if companies are expected to be run like a court of law.
[3] The instant case concerned the exercise of private-law rights under a private contract. The relationship between the principal and the agent was purely contractual and not that of an employer and an employee. The audialteram partem rule was, therefore, inapplicable.
[4] There was no evidence that the principal would forbear from exercising its rights under cl. 26(b) of the agency contract, or that as a result of such a promise or representation from the principal, and in reliance thereof, the agent entered into the agency contract. The facts of the instant case simply did not justify the invocation of the doctrine of estoppel against the principal.
[5] The applicability of the doctrine of inequality of bargaining power under the common law of Malaysia is still doubtful because: (i) section 14 of the Actonly recognises coercion, undue influence, fraud, misrepresentation and mistake as the factors that affect free consent; (ii) section 3(1) of the Civil Law Act 1956 in particular its opening words, the cut-off dates therein and the proviso thereto is couched in restrictive language; (iii) the courts are hesitant about ‘legislating’ on substantive law with retrospective effect; and (iv) of the uncertainty in the law that may be caused. The courts should scarcely interfere with the freedom of parties to contract unless the bargain is contrary to the clear provisions of the law, in particular the Act.
[Bahasa Malaysia Translation Of Headnotes
Ini adalah rayuan perayu/syarikat insuran (‘prinsipal’) terhadap keputusan Mahkamah Tinggi yang membenarkan tuntutan responden/agen insuran (‘agen’) terhadap prinsipal kerana menamatkan perjanjian agensi di antara mereka. Mahkamah Tinggi berpendapat bahawa penamatan perjanjian agensi oleh prinsipal yang berasaskan fasal 26(b) perjanjian tersebut adalah tanpa sebab dan tanpa notis yang munasabah dan dengan itu bertentangan dengan peruntukan ss. 158dan 159 Akta Kontrak 1950(‘Akta’); bahawa tiada alasan diberikan oleh prinsipal kepada agen atas penamatan agensi; bahawa penamatan agensi adalah berniat jahat, tidak sah, tidak adil dan melanggari prinsip keadilan asasi. Berikutnya, hakim bijaksana memberikan award RM3 juta kepada agen kerana kehilangan pendapatan. Dalam rayuan prinsipal di sini isu-isu yang berbangkit ialah: (i) sama ada fasal 26(b) perjanjian agensi yang memperuntukkan “…perjanjian ini boleh ditamatkan tanpa memberi apa-apa alasan… oleh mana-mana pihak dengan memberi 15 hari notis” adalah sah mengambilkira peruntukan ss. 158dan 159 Akta; (ii) sama ada prinsip keadilan asasi, terutama audi alteram partem, terpakai; (iii) sama ada kelakuan prinsipal hingga kepada penamatan perjanjian agensi adalah sebegitu rupa ianya harus diestop dari melaksanakan hak-hak kontraktualnya di bawah fasal 26(a) perjanjian agensi; dan (iv) keterpakaian doktrin ketidakseimbangan kuasa tawar-menawar dalam undang-undang awam Malaysia.
Diputuskan:
Oleh Abdul Hamid Mohamad HMR (majoriti)
[1] Ungkapan “… contract that the agency should be continued for any period of time…” dalam s. 158 Aktabermaksud ‘suatu perjanjian agensi untuk suatu tempoh tertentu atau ditetapkan’. Dengan demikian, oleh kerana perjanjian di antara prinsipal dan agen bukan merupakan perjanjian untuk suatu tempoh yang ditetapkan, maka s. 158adalah tidak terpakai dan segala remedi di dalamnya adalah tidak terbuka kepada agen. Selain itu, pemakaian s. 159adalah tertakluk kepada s. 158 yang mendahuluinya; ianya dengan itu mengikut bahawa s. 159Akta juga tidak terpakai kepada perjanjian agensi di sini. Dengan yang demikian, fasal 26(b) perjanjian agensi adalah sah di sisi undang-undang kontrak.
[2] Prinsip-prinsip keadilan asasi yang terpakai kepada badan-badan awam tidak harus terpakai kepada perhubungan yang merupakan suatu perhubungan kontraktual semata-mata. Para hakim seharusnya tidak terburu-buru untuk menggunapakai doktrin ini kepada dunia perniagaan. Pengurusan perniagaan tidak boleh disamakan dengan pentadbiran keadilan. Ekonomi negara mungkin boleh terhenti jika syarikat-syarikat dikehendaki menjalankan urusan seperti sebuah mahkamah keadilan.
[3] Kes semasa membabitkan pelaksanaan hak undang-undang persendirian di bawah perjanjian persendirian. Hubungan di antara prinsipal dan agen adalah semata-mata berbentuk kontraktual dan bukan di antara majikan dan pekerja. Prinsip audi alteram partem, dengan itu, tidak terpakai.
[4] Tiada keterangan yang menunjukkan bahawa prinsipal tidak akan melaksanakan hak-haknya di bawah fasal 26(b) perjanjian egensi, ataupun bahawa agen bertindak untuk memeterai perjanjian agensi tersebut akibat dari janji atau representasi yang sedemikian rupa yang dibuat oleh prinsipal. Fakta kes semasa tidak menjustifikasikan penggunaan doktrin estopel terhadap prinsipal.
[5] Keterpakaian doktrin ketidakseimbangan kuasa tawar-menawar di bawah undang-undang awam Malaysia masih meragukan kerana: (i) seksyen 14 Aktahanya mengiktiraf paksaan, pengaruh tidak wajar, fraud, misrepresentasi dan khilaf sebagai faktor yang menjejaskan kerelaan; (ii) seksyen 3(1) Akta Undang-Undang Sivil 1956 terutama ungkapan pembukaannya, tarikh-tarikh penentuan di dalamnya serta proviso kepadanya diolah dengan perbahasaan sempit; (iii) mahkamah bersikap berhati-hati untuk ‘menggubal’ undang-undang substantif dengan kesan retrospektif; dan (iv) ketidakpastian dalam undang-undang yang mungkin berbangkit. Mahkamah seharusnya tidak mengganggu kebebasan pihak-pihak untuk berkontrak kecuali apa yang meterai bertentangan secara jelas dengan peruntukan undang-undang, terutama Akta.
Rayuan dibenarkan dengan keputusan majoriti.]
Reported by Gan Peng Chiang

Case(s) referred to:
A/S Awilco v. Fulvia SPA di Navigazione, The Chikuma [1981] 1 All ER 652 (refd)
Boustead Trading (1985) Sdn Bhd v. Arab-Malaysian Bank Bhd [1995] 4 CLJ 283 (refd)
Chan Chow Kian v. International Trading Co Ltd [1969] 1 LNS 20; [1969] 2 MLJ 233 (refd)
Datuk Joginder Singh & Ors v. Tara Rajaratnam [1983] 1 LNS 21; [1983] 2 MLJ 196 (refd)
Johnson v. Moreton [1978] 3 All ER 37 (refd)
Landau and Sons v. Ahmed Ayub AIR [1922] Sind 25 (refd)
Lloyd v. MacMahon [1987] AC 625 (dist)
Menteri Sumber Manusia v. Association of Bank Officers [1999] 2 CLJ 471; [1999] 2 MLJ 359 (refd)
Mohamed Selan v. PB Securities Sdn Bhd [1992] 1 LNS 23; [1992] 1 MLJ 762 (refd)
Rookes v. Barnard [1964] AC 129 (refd)
Saad Marwi v. Chan Hwan Hua & Anor [2001] 3 CLJ 98 (refd)
SEA Housing Corporation Sdn Bhd v. Lee Poh Choo [1982] CLJ 355; [1982] CLJ (Rep) 305 (refd)
Sohrabji Dhunjibhoy Medora & Anor v. The Oriental Government Security Life Assurance Co Ltd AIR (33) [1946] PC 6 (dist)
Sykt Jaya v. Star Publications (M) [1990] 1 CLJ 155; [1990] 3 CLJ (Rep) 151 (dist)
Teh Poh Wah v. Seremban Securities Sdn Bhd [1996] 4 CLJ 16 (refd)
WJ Allan & Co Ltd v. El Nasa Export and Import Co [1972] 2 QB 189 (refd)
Wong Pa Hock v. American International Assurance Co Ltd & Anor [2002] 2 CLJ 267 (foll)

Legislation referred to:
Civil Law Act 1956, s. 3(1)
Contracts Act 1950, ss. 14, 158, 159

Other source(s) referred to:
GH Treitel, Law of Contract, 9th edn
Prof Sir William, Administrative Law, 5th edn
Pullock & Mulla, Indian Contract & Specific Relief Acts, 12th edn, vol II

Counsel:
For the appellant – Dato’ Sivaparanjothi (S Ruthern, Ch’ng Kim Hock, Wong Kee Them & Wong Kee Them); M/s V Siva & Partners
For the respondent – Dato’ Dr Cyrus Das (Ong Chee Yong & Ong Peck Ha); M/s Ong & Ong

JUDGMENT
Abdul Hamid Mohamad JCA:
The appellant is an insurance company. The respondent was the appellant’s insurance agent. The respondent’s agency was terminated by the appellant. The respondent sued the appellant alleging that the termination letter dated 26 January 1995 was given in bad faith and/or was unlawful, unfair, unjust and/or in contravention of the rules of natural justice. It was alleged that the termination of the agent’s contract dated 27 February 1992 by the appellant was without sufficient cause, that the appellant failed to give to the respondent a reasonable notice of the termination of the agency contract, that the appellant had failed to disclose the reasons for the dismissal, and that she had suffered loss and damage and had been deprived of her rights, privileges and benefits contained in the agent’s contract. She claimed loss of earnings, being the total of First Year Commission, General Business Commission, Career Benefits Payment and other incomes from 1995 until the age of 65 years, calculated on a projected increase of 10% per annum totalling RM9,720,000. She also claimed loss of Agent’s Provident Fund totalling RM300,000. Of course, she also claimed interest and costs.
The learned judge gave judgment in her favour and awarded her RM3,000,000 for loss of earning which was to be paid forthwith “as she had suffered all these years while waiting for justice from this court”. The learned judge also awarded a sum of RM20,804.17 for loss of provident fund. The learned judge also awarded interest of 8% per annum on the pre-trial damages from the date of termination of the agent’s contract until the date of judgment and 8% from the date of judgment until the date of full payment thereof.
The appellant appealed to this court. We gave our decision on 3 May 2002. It was a majority decision. My brother Mohd. Saari Yusoff and I were of the view that the appeal should be allowed. My brother Mohd. Noor Ahmad was of the view that the appeal “on liability” should be dismissed but the appeal “on quantum” should be allowed partly by reducing the damages to RM50,000.
Coming back to the facts. As said earlier, the respondent was an insurance agent of the appellant. The agency was governed by an agent’s contract dated 27 February 1992.
The preamble to the agent’s contract reads as follows:
WITNESSETH: That the Agent is hereby authorised to procure and transmit to the Company applications for all forms of life assurance, group insurance, annuities and general insurance within the territory wherein the Company has the right to do business, and to collect and pay over the Company first year and renewal premiums and on such business; all subject to the Terms and Conditions on the following pages hereof which the Agent has read which forms part of this Agreement, as fully as if set forth over the signatures of the parties hereto.
The Company agrees to pay and the Agent agrees to accept as full and complete remuneration for his services under this Agreement, Commissions and Incentives as specified in the Schedule of Commissions attached to and forming a part hereof, which schedule shall be subject to change or revocation at any time on written notice by the Company.
Clause 24 reads as follows:
24(a) This written contract constitutes the whole agreement between the parties herein
b) This agreement shall unless the Company otherwise consents in writing supersede abrogate and annul any contract or relationship heretofore held by the Agent with the company as agent, broker or otherwise but shall not affect any bond given there under. The provisions of this Clause shall not apply to any existing Agency Leader’s Contract entered into between the Agent and the Company.
Clause 26(b) reads as follows:
26(b):
Subject to sooner termination of this Agreement by the Company in Accordance with Clause 27 hereof this Agreement may be terminated without giving any reason thereof.
b) By either party upon 15 day’s notice in writing;…
Clause 32 reads:
32. Nothing contained herein shall be construed to create the relationship of employer and employee whether expressly or impliedly between the Company and the Agent.
The respondent had been an agent of the appellant since 28 December 1987. By a letter dated 26 January 1995 the appellant terminated the respondent’s contract. The content of the letter reads as follows:
Dear KOH YEN BEE
Re: TERMINATION OF AGENT’S CONTRACT
In accordance with Clause 26(b) of your Agent’s contract signed between you and our Company, we hereby give you fifteen (15) days notice effective from today to terminate the said contract.
You are required to return to us immediately the following:
1)Agent’s authorisation Card.
2)Application forms, brochures and other sales material and documents supplied to you by our Company.
3)Condition Binding Receipt Books.
Yours faithfully
Sgd. (Illegible)
LIM BOON KWEE
Manager Agency Records Department.
For the purpose of this judgment, we do not think it is necessary to reproduce the subsequent correspondence between the parties.
The main issue is whether cl. 26(b) of the agent’s contract is valid, in particular, whether the agreement may be terminated by giving 15 days’ notice without giving any reasons.
Before embarking on the specific grounds, it is important to note that the provision applies to both parties, not just the principal, ie, the appellant. Just as the principal may by giving a 15-day notice without giving any reason, terminate the agreement, the agent may do likewise. We do not know the practice or the norm in the insurance industry. That may well be the norm in the industry.
However, in this case, where the agreement was terminated by the principal, the learned judge talked about the case as “a classic case of a master flexing its muscles to show its might notwithstanding the innocence of it servant”, “outrageous behaviour of the appellant”, “a case pure and simple, of the big bullying the small, and the strong oppressing the weak… an oppression which manifested its ugly head for every one to see”, “cruelty and malice”, “inhumane conduct” and so on, and the agent is viewed as “weak”, “innocent”, “simple”, “scapegoat” and so on and for all that, the agent must be compensated. What if the agent is the one who gives the 15 days’ notice of termination of the agreement without giving any reasons? Would the position be reversed?
Sections 158and 159 of the Contracts Act 1950
We shall first deal with the issue whether cl. 26(b) is inconsistent with ss. 158and 159 of the Contracts Act 1950. Indeed, it is only on this point that our views differ: the majority holds the view that ss. 158and 159are not applicable whereas the minority holds the view that they are applicable.
The two sections read as follows:
158. Where there is an express or implied contract that the agency should be continued for any period of time, the principal must make compensation to the agent, or the agent to the principal, as the case may be, for any previous revocation or renunciation of the agency without sufficient cause.
159. Reasonable notice must be given of such revocation or renunciation; otherwise the damage thereby resulting to the principal or the agent, as the case may be, must be made good to the one by the other.
There appears to be only two decided cases in this country, both of the High Court, in which the two sections were considered. The first is Chan Chow Kian v. International Trading Co. Ltd.[1969] 2 MLJ 233. In that case, the plaintiff brought an action for goods sold and delivered. The defendant counterclaimed that the plaintiff had unjustly and deliberately terminated his appointment as distributor of the goods. The plaintiff had terminated the agency because of late payments. The court held that on the facts the plaintiff had sufficient cause to terminate the agency and therefore the counterclaim should be dismissed.
The first thing that should be noted is that in that case the contract of agency was for a period of five years and it was terminated before the expiry of that period. In the circumstances of that case it was perfectly right for the learned judge to apply s. 158even though he held that the plaintiff had sufficient cause to terminate the agency. Even then, that ground was considered on the assumption that there was a contract.
All that that case decides is that where there is a fixed period of time, in that case five years, s. 158applies. That is perfectly correct and we agree with it.
The next case is the case of Wong Pa Hock v. American International Assurance Company Ltd and Anor. [2002] 2 CLJ 267.
The facts of that case are quite similar to the facts in the present appeal. Indeed the defendants in both cases are the same. Clause 24(b) in that case is in pari materia with cl. 26(b) in this case. Indeed the learned counsel for the plaintiff in that case relied on the judgment of the learned judge now under appeal. But the court in that case was asked to decide a preliminary issue whether the plaintiff was entitled to the rule of natural justice of being given reasons for the termination of the contract and the opportunity to be heard. In coming to the conclusion that he did, the learned judge inter alia, considered the provisions of ss. 158and 159 of the Contracts Act 1950. He concluded that the two sections do not apply as the contract was not for a fixed period of time.
Indeed that is the issue that this court has to decide: is the agent’s contract a contract for “any period of time”? That depends on the meaning of the words “any period of time.” Does it mean a fixed period of time?
Unfortunately, we find little assistance from established text books on the law of contract in Malaysia or even India, where the relevant provisions in their respective Contracts Acts are in pari materia.
The better way therefore is to read the two sections and interprete them. In substance, what s. 158says is that where an agency contract is “for any period of time”, one party must make compensation to the other “for a previous revocation or renunciation of the agency without sufficient cause.” In other words, if the contract is for any period of time, compensation must be made if the contract is revoked or renounced prior to the expiry of the period and without sufficient cause. If the revocation or renunciation is made with sufficient cause, no compensation need be made.
Do the words “for any period of time” mean a fixed period of time? In our view, the answer is “yes”, and it cannot be otherwise. It is true that the word “fixed” is not used, but the word “period” itself must have a beginning and an end. Otherwise, it is not a “period”. The Concise Oxford Dictionary, inter alia, gives the meaning of the word “period” as “a length or portion of time.” Thus for example, we talk about “the period of limitation”. K.J. Aiyar’s Judicial dictionary explains the “Period of limitation” as “the period of years, months or days prescribed by law impassing limitation.”
Secondly, if s. 158applies to all contracts of agency, the words “where there is an express or implied contract that the agency should be continued for any period of time” would have no meaning. The drafters might just as well say, “where a contract of agency is revoked or renounced without sufficient case, the principle must make compensation to the agent, or the agent to the principle, as the case may be.” It is said that this is a continuing contract and therefore, the section applies. But, this is merely stressing on the word “continued” used in the section. But the word “continued” is followed immediately with the words “for any period of time.”
Thirdly, the section also talks of “a previous revocation or renunciation”. The Concise Oxford Dictionary gives the meaning of “previous” as “coming before in time or order”. Something can only happen “previous” to an event if the time of the happening of that event is definite or fixed.
On these grounds, we do not see how the section can be read to cover all contracts of agency, whether or not there is a fixed period of time. In our judgment, the words “continued for any period of time”, can only mean continued for a fixed or definite length of time be it one year, one month or whatever. But there must be a beginning and an end, known to the contracting parties at the time of the contract.
Coming back to the facts of this case. The agent’s contract was signed on 27 February 1992. Clause 1 provides that subject to the appellant’s (company’s) right to terminate the agreement as set out in the agreement, the agreement “shall only be deemed too be valid and binding upon the appellant so long as the agent’s schedule of commissions shall continue to subsist.” The schedule of commission is signed annually. The written contract constitutes the whole agreement between the parties cl. 24. The agreement becomes automatically terminated without prior notice to the agent if, inter alia, the schedule commissions ceases to subsist cl. 27.
We are unable to find any indication that the contract is meant to be for any fixed period of time, be it for one year or whatever. The only indication, perhaps, is that the schedule of commissions is to be signed annually. But that schedule of commissions only fixes the rate of commissions payable during the period of the schedule’s subsistence. That schedule of commissions itself is subject to revocation or change and to the terms and conditions of the agents’ contract.
In the circumstances, we are of the view that the agent’s contract is not “for any period of time,” meaning a fixed or definite period of time. Therefore, the provision of s. 158is not applicable. Therefore, it was not revoked or renounced “previous” to the expiry of the period, as the period does not exist. Therefore the issue whether there was sufficient cause or not did not arise.
We now come to s. 159.
In brief, s. 159says that reasonable notice must be given for such revocation or renunciation, otherwise the damage to the principal or agent must be made good.
The question is whether s. 159 is independent of s. 158 meaning that in all cases of revocations and renunciations, reasonable notice must be given otherwise the damage resulting thereby must be made good.
There appears to be two schools of thought amongst the High Courts in India, one says it is independent of s. 158, the other says the opposite see p. 2204, Pullock & Mulla: Indian Contract & Specific Relief Acts, 12th edn, vol. II.
Again, we prefer to look at the section and interprete it. We are of the view that the words “such revocation and renunciation” only refer to a revocation or renunciation under s. 158. First, this section follows immediately after s. 158. Secondly, there is no reason for the word “such” to be used if it is not meant to refer to the revocation and renunciation mentioned in s. 158. Thirdly, s. 159 uses the very same words used in s. 158 ie “revocation and renunciation.”
The learned judge however, referred to Mohamed Selan v. PB Securities Sdn. Bhd. [1992] 1 MLJ 762 and said:
It would be correct to say that the case of Mohamed Selan (supra)is authority for the following proposition: that notwithstanding the clause “without assigning any reason whatsoever,” a party suspending an agent’s authority may “intentionally and voluntarily abandon” the right not to give any reason and where he has given a reason, the court is entitled to examine that reason and decide whether on the reason given, the principle’s action to suspend the plaintiff’s trading was justified under the circumstances.
Mohamed Selanis a judgment of the High Court. The plaintiff was engaged as a remisier by the defendant stockbrokers. The plaintiff then acted for a client in the sale of a certain shares quoted at the KLSE. It was later discovered that a large number of share certificates concerned had been reported stolen or missing. The client was paid for the shares on the very day that he had delivered the share certificates and transfer forms to the defendant, in contravention of the rules of KLSE. The defendant was required to buy other shares to replace some of the stolen shares and deliver them to the buyers. The defendant then suspended the plaintiff from trading and gave reasons for its decision (although the agreement provided that no reason need be given for suspension) but on appeal he was allowed to continue trading under certain conditions. The plaintiff prayed for various orders including a declaration that the suspension was null and void and damages.
Eusoff Chin J (as he then was), inter alia, held that the defendant had not exercised reasonable deligence in the performance of its duty, flouted the KLSE rules and had not taken reasonable precautions to prevent the receipt of stolen share scripts from the client, and that the losses suffered by the defendant was through its own negligence.
The learned judge (as he then was) in that case said:
It is therefore, clear that the defendant, knowing and being fully aware of its rights under cl. 4 of the remisier’s agreement to suspend the plaintiff without assigning any reason whatsoever, intentionally or voluntarily abandoned that right when it gave its reasons for suspending the plaintiff. In other words, the defendant had waived its rights not to give reasons for suspending the plaintiff from trading.
Now that the defendant had chosen to give its reasons for suspending the plaintiff, the court is entitled to examine the reasons given, and to decide whether on the reasons given, the defendant’s action to suspend the plaintiff from trading was justified under the circumstances. I have already made my findings that on the facts, the defendant had suffered the losses through its own negligence, and because of that it is not justified for the defendant to put the blame on the plaintiff, and to suspend him immediately from trading. Further, the defendant had no just cause to recover its losses suffered through its own negligence by deducting the amount of the losses from the security deposit of the plaintiff. Although the plaintiff had been wrongfully suspended by the defendant from trading, it will not be proper for this court to order the defendant to re-employ the plaintiff as its remisier on the principle that one man will not be compelled to employ another against his will. The plaintiff’s remedy lies in damages.
It is this passage that the learned judge relied on in the present case.
We do not want to say whether Mohamed Selanwas rightly or wrongly decided because an appeal to this court may still be pending.
In the present case, the cause of action is purely on a private contract. The issue is whether cl. 26(b) is valid, under the law of contract. Other principles like natural justice, which is applicable to public bodies, should not be applied to a purely contractual relationship. Judges, who, by the nature of their job, always have natural justice in their minds, should be slow to extend such principles to the world of business. Business management should not be equated with administration of justice. Business, indeed the country’s economy might grind to a halt if companies are expected to be run like a court of law.
The requirement that reasons must be given, if applied to a private contract such as in this case, would work both ways. If, as in this case, a big company, the principal, is expected to adhere to the principles of natural justice when terminating a contract, failing which it is liable to pay damages even though the contract makes clear provision regarding it, the same requirement should also apply to the agent when the agent seeks to terminate the same contract. Would the agent be required to provide grounds thereto (unless where ss. 158and 159 of the Contract Act 1950apply) and give the principle the right to be heard, failing which the termination is void and the agent has to continue to be an agent or pay damages?
In any event, the issue here is whether cl. 26(b) is valid. If it is, then it is a complete answer to the termination of the contract pursuant thereto.
In the circumstances, we are of the view that since s. 158is not applicable, s. 159is also not applicable. Clause 26(b) of the agent’s contract is not void as being inconsistent with the provisions of the two sections.
Natural Justice
The next issue is whether the audi alteram partem rule applies:
In the earlier part of the judgment, the learned judge, under the heading of “Introduction”, made the following remark:
Of crucial importance to this case would be the audi alteram partem rule: the rule requiring fair hearing. It seemed to me the AIA have not heard of this rule requiring fair hearing. Being an international American Corporation, AIA threw this rule to the wind.
However, as we understand the judgment, the learned judge did not hold that the termination of the agents’ contract was unlawful because a fair hearing was not given.
In any event, the question of giving a fair hearing does not arise at all in this case. As submitted by the learned counsel for the appellant, and we agree with him, this is a case of and concerning the exercise of a private law right under a private contract. It does not concern a public body acting pursuant to powers derived from an Act of Parliament. The relationship between the appellant and the respondent was purely a contractual relationship, not that of an employer and an employee. Clause 32 clearly provides so.
The case of Lloyd v. MacMahon [1987] AC 625 relied on by the learned judge is a public law case. For the distinction between the powers of public authorities and those of private persons, see Menteri Sumber Manusia v. Association of Bank Officers[1999] 2 MLJ 359 FC, in particular the passage from Administrative Law, 5th edn by Professor Sir William Wade, quoted by Edgar Joseph Jr. FCJ.
Estoppel
Under the heading “AIA must be estopped by their conduct from relying upon cl. 26(b) of the agents’ contract” the learned judge said:
Is it just that AIA should, in the light of its conduct, succeed in the action given the peculiar facts of the case? The answer would certainly be in the negative and the doctrine of estoppel would be vigorously applied in favour of the plaintiff.
And again:
Having perused through the evidence with a toothcomb, I have no hesitation to hold that the circumstances of the conduct and behaviour of AIR were such that it would be wholly inequitable that AIA should be permitted to assert the applicability of clause 26(b) of the Agent’s Contract dated February 27, 1992. This was part and parcel of my judgment and I so hold accordingly.
First, as pointed out by the learned counsel for the appellant, estoppel was never pleaded, nor particulars given, by the respondent.
The “state of affairs” listed by the learned judge on which he “vigorously” applied the doctrine by conduct are as follows:
(1) the plaintiff was an innocent party;
(2)the plaintiff’s Agent’s Contract was terminated for the sole reason of her being married to Soh Chor Ann;
(3)the plaintiff was deprived of an opportunity of explaining why her contract should bot be terminated;
(4)the timing of the termination was done in bad taste; it suggested cruelty or malice; it suggested that AIA had acted rashly in instructing that the letter termination be sent out just before Chinese new year;
(5)that the defendant, AIA, is a large multinational corporation while the plaintiff is a mere ordinary Malaysian citizen earning an honest living;
(6)AIA terminated the plaintiff’s Agent’s Contract in the belief a false delusion, that they did not have to answer to the plaintiff; and
(7)AIA terminated the plaintiff’s Agent’s Contract in the belief again a false delusion, that they did not have to account for their action in a court of law.
As for the law, we would only quote a passage from the judgment of Lord Denning in WJ Allan & Co. Ltd. v. El Nasa Export and Import Co. [1972] 2 QB at p. 189, which was quoted with approval by Gopal Sri Ram JCA in Boustead Trading (1985) Sdn. Bhd. v. Arab-Malaysian Bank Bhd.[1995] 4 CLJ 283at p. 297:
If one party by his conduct, leads another to believe that the strict rights arising under the contract will not be insisted upon, intending that the other should act on that belief, and he does act on it, then the first party will not afterwards be allowed to insist on strict legal rights when it would be inequitable for him to do so.
We agree with the submission of the learned counsel for the appellant that there is no evidence that the appellant would forbear from exercising its rights under cl. 26(b), nor was there any evidence that as a result of such a promise or representation and in reliance thereof the respondent entered into the contract. On the other hand evidence shows that about 120 such notices were issued every month which clearly shows that the appellant was relying on cl. 26(b) and it is very unlikely that there would be a special forbearance in respect of the respondent.
Furthermore, as pointed out by the learned counsel for the appellant, and we agree, that the effect of an estoppel is not to extinguish a right but merely to suspend it. The right can be resurrected through the issuance of notice. In the Law of Contract by G.H. Treitel, 9th edn, the learned author says:
The equitbale doctrine, like the common law doctrine of waiver, does not extinguish, but only suspends, rights. In Hughes v. Metropolitan Ry. The landlord was not forever prevented from enforcing the covenant: he could have enforced it on giving reasonable notice requiring the tenant to do the repairs. This aspect of the doctrine was stressed in Tool Metal Manufacturing Co. Ltd. v. Tungsten Electric Co. Ltd., where a licence for the use of a patent provided that the licensees should pay “compensation” if they manufactured more than a stated number of articles incorporating the patent. In 1942 the owners of the patent agreed to suspend the obligation to pay “compensation” until a new agreement was made. They later gave notice to end the suspension. It was held that they were once again entitled to the payments after the expiry of a reasonable time from the giving of notice. The reason for this rule is that, in equity, the effect of the representation is to give the court a discretion to do what is equitable in all the circumstances; and in the cases just discussed it would not be equitable (or in accordance with the intention of the parties) wholly to extinguish the representor’s or promisor’s rights.
The learned judge also purported to rely on the judgment of this court in Teh Poh Wah v. Seremban Securities Sdn. Bhd.[1996] 2 AMR 2322 to use estoppel not as a shield but as a sword, and invoked the doctrine to estop the appellant from relying on cl. 26(b).
To appreciate what Gopal Sri Ram JCA said in that case, we should first look at the facts of that case, which is aptly summarised in the head note:
In that case, the appellant’s husband, H, had a Mareva injunction imposed on him. The appellant (wife) opened a current account with Public Bank; she says that she signed all the cheques in blank and handed the cheque book to her husband, who entered into a contract with the respondent stock brokers. H bought and sold shares through the respondent and all transactions were done in the wife’s name as her name was on a purported written agreement. After the account went bad, the respondent sued the appellant for recovery of monies owed to them, amounting to RM275,000. The appellant said she did not know of H’s actions; the respondent’s application to strike out the appellant’s defence and counterclaim was allowed by the trial judge. Hence this appeal.
…
Held
It would be inequitable and unjust for the appellant to now assert facts that contradict her earlier conduct as the undisputed facts reasonably support an inference that the respondent was influenced by the appellant’s conduct to entertain the belief that the appellant had given H carte blanche to act on her behalf. Furthermore, the doctrine of estoppel applies to the facts of this case.
In his judgment, the learned judge of the Court of Appeal said at p. 2325:
This is a case where the wife, by her actions, would have led a reasonable man to believe that she had given her husband a carte blanche to act on her behalf. The undisputed facts reasonably support an inference that the respondent was influenced by the conduct of the appellant to entertain such a belief. She cannot therefore now assert facts that would contradict her earlier conduct. That would be inequitable and therefore unjust. She must face the consequences of the series of events which she set in motion by acceding to the husband’s plan. If it were otherwise, it would amount to our letting her off the hook for assisting in the intentional breach of an order of court. That would, in our judgment, amount to condoning an attempt to subvert the machinery of justice. We will not tolerate such a result.
In our judgment, this appeal may quite satisfactorily be resolved by reference to the doctrine of estoppel. If is a flexible doctrine by which courts seek to do essential justice between litigating parties.
The learned judge of the Court of Appeal, then went on to say:
We would add that it is wrong to apply the maxim ‘estoppel may be used as shield but not a sword’ as limiting the availability of the doctrine to defendants alone. Plaintiffs too may have recourse to it. The true nature of the doctrine in this context is that stated by Lord Russel of Killowen in Dawsons Bank v. Nippon Menkwa Kabushiki Kaisha LR 62 IA 100 at p. 108:
Estoppel is not a cause of action. It may (if established) assist a plaintiff in enforcing a cause of action by preventing a defendant from denying the existence of some fact essential to establish the cause of action, or (to put it in another way) by preventing a defendant from asserting the existence of some fact the existence of which would destroy the cause of action.
In other words, a plaintiff too may rely on estoppel, not as a cause of action, but for the purpose so clearly stated by Lord Russel of Killowen in Dawsons Bank ‘s case.
In that case, the appellant (wife), having opened a bank account, signed all the cheques in blank and handed the cheque book to her husband (who was subjected to a Mareva injunction) who entered into a contract with the respondent, bought and sold shares through the respondent, all done in the wife’s name. Only after the account went bad that she said she did not know of the husband’s actions. Under the circumstances, clearly estoppel applies against her. Otherwise, it would be inequitable and unjust that she be let off the hook for assisting the husband in his intentional breach of the Mareva injunction.
The facts of the present case do not justify the application of the doctrine of estoppel.
The learned judge also held that the appellant was estopped by the agreed facts, para 6(c) to (d). We do not think we need to reproduce them. They are questions posed to the court eg whether the termination was made in bad faith, unlawful, unfair, in breach of natural justice; whether it was without sufficient cause, whether a reasonable notice was given. These are questions for the court to decide based on the pleadings of the respondent. Whether or not they are tabulated, the court would have to consider them anyway, as those are the grounds pleaded by the respondent for challenging the termination. They are not admitted facts. With respect, we do not understand how they can be considered to be “admitted facts” to found an estoppel against the appellant.
Effect Of Addendum
Next the learned judge held that even if the appellant could rely on cl. 26(b), that clause had been varied or modified by the addendum to the agent’s contract.
The addendum, dated 8 March 1994 says:
If the Agent after terminating the Agent’s Contract which he previously held with another Life Insurance Company hereinafter called “the previous Insurer”) joins or had joined the Company, the Agent shall not within two (2) years from the termination date of his previous contract, divert to the Company any policy issued by the previous insurer. If the Agent commits a breach of this condition, the Company shall terminate the Agent’s contract.
Dated this 8th day of MARCH 1994.
Again, with respect, we fail to see how this addendum modifies the provisions of cl. 26(b). An addendum is clearly an addition or a supplement. It is meant to prevent unfair business practice of “pinching” the business from an agent’s former principal. The addendum signed by the parties here is not even in the interest of the appellant. It is, I believe, a rule made in the interest the insurance business as a whole. Of course an agent who breaches it may have his agency terminated. If at all it is an additional ground for the termination of the agency, in case of breach of the addendum. How or how else it modifies or varies the provision of cl. 26(b), we are unable to understand.
The respondent herself in her evidence admitted in no uncertain term that the addendum did not refer to cl. 26(b). She then went on to explain what it meant and confirmed that it did not affect her as she did not work with another company before joining the appellant.
This ground is clearly misconceived.
Inequality Of Bargaining Position
Even though the learned judge in his judgment repeatedly talked about “the big” and “the small”, the “master” and the “servant”, the “strong” and the “weak” and so on, he did not however deal with this ground separately. Neither did he conclude that cl. 26(b) was void on the ground of inequality of bargaining position, coercion or undue influence. Perhaps the reason is understandable: the respondent did not plead this ground in her statement of claim.
However, before us, more so in his written submission, the learned counsel for the respondent devoted one part under the heading “The termination is invalid and an unconscionable exercise of contractual power.” He resorted to the word “unconscionable” pleaded in para 6 of the statement of claim. He argued that the contractual power was “exercised widely and in a willy nilly fashion.” He argued that there was overwhelming evidence “of the callous and unconscionable exercise of this power of termination.” They are that the appellant had no complaint personally against the respondent “who was at all times an outstanding performer”. The only ground was the decision to terminate her husband’s agency. It was argued that the appellant was “able to take this high handed attitude because of the absolute power it has reserved for itself under cl. 26(b).”
First, it must be pointed out it is wrong to say that cl. 26(b) contains absolute powers of termination reserved by the appellant for itself. The provision of cl. 26(b) applies to both parties. Both the appellant and the respondent may resort to it. If and when the agent resorts to it, is it also “unconscionable”?
Learned counsel for the respondent relied heavily on the provision of s. 3(1) of the Civil Law Act 1956and the decision of this court in Saad bin Marwi v. Chan Hwan Hua & Anor[2001] 3 CLJ 98. That case appears to be the first case in this country in which the court applied the doctrine of inequality of bargaining power independently of the well-established doctrine of undue influence. In Datuk Joginder Singh & Ors. v. Tara Rajaratnam[1983] 2 MLJ 196 (FC) a case involving a solicitor and his client, where the word “unconscionable” was used in passing, the issue was considered under the head of “undue influence”.
We do not wish to enter into an argument whether the doctrine of inequality of bargaining power or unconscionable contract may be imported to be part of our law. However, we must say that we have some doubts about it for the following reasons. First is the specific provisions of s. 14 of the Contracts Act 1950which only recognises coercion, undue influence, fraud, misrepresentation and mistake as factor that affect free consent. Secondly, the restrictive wording of s. 3(1) of the Civil Law Act 1956, in particular, the opening words of that subsection, the cut-off date and the proviso thereto. Thirdly, that fact the court by introducing such principles is in effect “legislating” on substantive law with retrospective effect. Fourthly, the uncertainty of the law that it may cause.
Be that as it may there is a lot to be said for the decision of this court in Saad ‘s case in view of the facts therein and the justice that the court should do. Saad ‘s case is a very clear case where a farmer whose earnings came, partly, from collecting coconuts. He had two pieces of land the value of which, as accepted by the High Court, was about RM2.4 million. Yet, the respondent, undoubtedly one of those unscrupulous businessmen, got him to sign an agreement to sell the property to him for RM42,000. The agreement was in English which language was not understood by Mr Saad. He was not represented by a lawyer. Even the so-called deposit of RM4,200 which was said to have been paid was never paid. It was set off against the rental of the coconut land of the respondent that he harvested. The contract imposed a liability on Saad to apply for and obtain indefeasible title within 12 months of the agreement, something which is almost impossible for him to do. Even if he could, the legal fees would have left him with nothing. Indeed he might end up a debtor minus the land.
The facts of that case clearly supports such a decision if justice were to prevail.
The facts of this case is nowhere similar to the facts in Saad ‘s. Here the respondent was an insurance agent. The contract was perfectly understood by her. It was not a one-off contract, but was subsisting for about ten years and there was no complaint by her of the terms thereof. The clause which is now challenged is applicable to both parties. If it is not unconscionable to the appellant if she exercises that right, why should it be unconscionable to her when the respondent exercises that same right?
In this kind of case, we think that the court should be slow to interfere with the freedom of the parties to contract unless it is contrary to the clear provisions of the law, in this case, in particular the Contracts Act 1950. Bearing in mind the tone of the judgment of the learned Judge, the reminder by Lord Bridge in A/S Awilco v. Fulvia SPA di Navigazione, The Chikuma [1981] 1 All ER 652 (H.L.) may be useful:
The ideal at which the courts should aim, in construing such clauses, is to produce a result that in any given situation both parties seeking legal advice as to their rights and obligations can expect the same clear and confident answer from their advisers and neither will be tempted to embark on long and expensive litigation in the belief that victory depends on winning the sympathy of the court. (emphasis added).
We are of the view that this ground too has no merits.
On these grounds we are of the view that the appeal should be allowed with costs.
Quantum
Even though, in view of our decision on liability, it would be academic for us to deal with the issue of quantum of damages, since there is an appeal and a dissenting judgment, it appears that we have to say something about it.
However, our job has been made easier because we have now had the advantage of reading the judgment of our brother Mohd. Noor Ahmad in draft on it. That saves us the necessity of discussing the judgment of the learned judge on the issue of damages at length. We agree with our brother Mohd. Noor Ahmad who disagreed with the approach taken by the learned judge and the award made by him for the reasons given by our brother Mohd. Noor Ahmad.
Unfortunately and with respect we also do not agree with our brother Mohd. Noor Ahmad who calculated the amount of damages based on one year’s income less 50%.
In our view, if the provisions of s. 158 and/or 159 apply/applies and because of that the 15-day notice provided by cl. 26 is void, being unreasonable, then the question is what is the reasonable notice?
We were shown the case of Sohrabji Dhunjibhoy Medora and Another v. The Oriental Government Security Life Assurance Co. Ltd. A.I.R. (33) [1946] Privy Council 6.
The facts and the decision of the Privy Council was aptly summarized thus:
A life insurance company appointed D as its Chief Agent for Gujerat. The letter of appointment dated 9th July 1892, contained the following paragraph: “The Agency would stand in the name of D & Co., but as already explained you alone would be our recognised agent and would be solely responsible. On your retiring or otherwise discontinuing the work the agency would cease and your partner would have absolutely no claim thereunder.” Later on, on the suggestion of D this paragraph was cancelled by the company by a letter and D and two others were admitted as partners and recognised as agents working under the title of D and Co., but the other suggestion that the agency should last so long as the firm of D and Co., stood was ignored. In 1917, on the death of D and other partners the appellants who were D’s sons, were allowed by the company to come into the firm as partners in connexion with the agency. But nothing was said in the letter of appointment about the duration of agency. In 1939 the company terminated their agency by giving 3 1/2 months notice:
Held that, as the letter of 9th July 1892 showed, the original appointment was to last for the life time of D if he so long continued in business and it could not have been determined by notice. But in the absence of any reference in the correspondence to the duration of the agency of the appellants, the agency was terminable by reasonable notice.
Held further that the notice of 3 1/2 months given by the company was inadequate to determine an agency which had lasted for nearly 50 years, under which a very large business had been built up, and great expense incurred by the agents.
Sri John Beaumont, delivering the judgment of the Privy Council said:
On the question as to what notice was reasonable, if their Lordships had agreed with the High Court upon the other questions at issue, they would have accepted without question the concurrent findings of fact that two years was a reasonable notice; nor must their Lordships be taken as dissenting from that view. But as the case will have to be remitted to the High Court for the assessment of damages on the basis that the appellants have certain rights in relation to commission on renewal premiums after the termination of their contract, their Lordships think that the High Court should be free to reconsider the question of length of notice. The only opinion on the matter which their Lordships feel called upon to express is that the notice of 3 1/2 months given by the respondents was inadequate to determine an agency which had lasted for nearly 50 years, under which a very large business had been built up and great expense incurred by the agents.
In our view that case is not an authority that should be followed regarding the length of a reasonable notice. First, it is a 1945 judgment coming from the then India. We are talking about 21st century Malaysia. We doubt very much whether that authority is followed even in India now, what more in England. Time and things certainly have changed over the past 57 years. Secondly, even the Privy Council had not finally decided that, in that case, the notice should be two years. The Committee left it to the High Court to reconsider the question of the length of notice. Thirdly, the original appointment was to last for life, a far cry from the terms agreed to by the parties in the present appeal. Fourthly, D was appointed a sole agent, whereas in the present appeal the respondent is one of the many, may be hundreds, that may be terminated. We do not know how many agents terminate their agency during the same period.
Another case we think we should mention is Syarikat Jaya v. Star Publications (M)[1990] 1 CLJ 155; [1990] 3 CLJ (Rep) 151. It is a judgment of Edgar Joseph Jr. J (as he then was). In that case the defendants appointed the plaintiff sole agent for the sale of newspapers published by the defendant. The agreements were each for a period of three years but terminable after the first year upon, inter alia, three month’s notice in writing. Regarding the issue of a reasonable notice of termination, the learned judge, considering the circumstances of the case as a whole, “not forgetting the expedition and time spent by the plaintiffs and the desirability of a period of adjustment of business”, held that six months would have been a reasonable period.
Again, it must be pointed out that the agent there was a sole agent and the contract period provided in the agreements was three years. So, in our view that case too is not an authority for the proposition that the reasonable notice for the termination of an agency, of whatever type, should be six months.
What then is a reasonable notice for the termination of an insurance agency contract at the present time?
Unfortunately, we do not have any evidence of the current practice in the industry. The fact that the impunged agreement states 15 days, the fact that about 120 agents are terminated every month by the appellant and the fact that there had not been any challenge prior to this case, seems to suggest that the accepted norm in the industry is that the period is much shorter than even six months.
We are of the view that the better way for the court to decide the issue is, first, to hear evidence of the practice in the industry as the decision may be detrimental, not only to the insurance companies but also the agents themselves and the industry. The period fixed by the court will not only bind future agreements but will also operate retrospectively on existing agreements. (Even Parliament does not usually make laws with retrospective effect.) The period will bind both the insurance companies and the agents. If the period is too long, an insurance company genuinely wanting to terminate an unproductive and uncooperative agent may be jeopardised. Similarly, an agent who cannot make ends meet as an agent of a particular insurance company, may have to remain with the company until the period expires.
The fact that the law does not fix a definite period for such notice of termination shows that circumstances may be different from one type of agency and the other, from one industry to another.
It is no answer, we think, to say that each case should be decided on the facts and in the circumstances of that particular case. The principals and the agents would want to know what is the reasonable length of notice to be stipulated in future agreements. Otherwise there would be no certainty that a period believed to be reasonable by both parties at the time the contract was executed, agreed to by both parties, would be upheld by the court much later, and with retrospective effect. The judgment of the High Court in this case has given rise to, at least, one similar suit already.
In short, the judgment of the court, in fixing such a period, should not be a guesswork. The test of what “a reasonable man” thinks is reasonable does not help either, if though “the reasonable man” is reasonable, he is ignorant of the practice in the industry and the implications of his opinion. A principle of law should not be born out of ignorance. That is why in our view the practice in the industry is a factor that should be considered.
But, if, in spite of our shortcomings, our view is required, on the facts of this case, we are of the view that a notice of three months should be reasonable. The award of damages should then be arrived at by taking the average income per month multiply by three months, making a total of about RM25,000. We would grant that amount if we have to make our decision on it.

DAUD MAMAT lwn. MAJLIS AGAMA ISLAM DAN ADAT ISTIADAT MELAYU KELANTAN & SATU LAGI DAN RAYUAN YANG LAIN
MAHKAMAH RAYUAN, KUALA LUMPUR
ABDUL HAMID MOHAMAD, HMR; ABDUL KADIR SULAIMAN, HMR; ALAUDDIN MOHD SHERIFF, HMR
RAYUAN SIVIL NO: D-02-257-2001, D-02-258-2001, D-02-259-2001 & D-02-260-2001
2 OGOS 2002
[2002] 3 CLJ 761
PROSEDUR SIVIL: Deklarasi – Deklarasi untuk kebebasan beragama – Deklarasi bahawa undang-undang Persekutuan dan undang-undang Negeri yang bercanggah dengan per. 11 Perlembagaan Persekutuantaksah – Deklarasi bahawa undang-undang Persekutuan dan undang-undang Negeri yang menyekat hak kebebasan pemohon keluar daripada agama Islam tidak sah- Sama ada deklarasi-deklarasi tersebut terlalu umum – Sama ada satu usaha untuk mengagalkan pertuduhan

Terdapat lapan rayuan yang berkaitan, iaitu empat terhadap keputusan Mahkamah Tinggi Kota Bharu di Kelantan menolak permohonan habeas corpus supaya membebaskan perayu-perayu daripada menjalani hukuman penjara yang dijatuhkan ke atas mereka oleh Mahkamah Tinggi Syariah, Kota Bharu (lihat [2002] 3 CLJ 766) dan empat lagi terhadap keputusan Mahkamah Tinggi tersebut menolak permohonan untuk perintah perisytiharan mengenai kebebasan perayu-perayu keluar daripada agama Islam. Ini adalah empat rayuan berkenaan perintah perisytiharan tersebut.
Peguam perayu-perayu membahagikan deklarasi-deklarasi yang dipohon oleh perayu-perayu kepada tiga kategori. Pertama, deklarasi mengenai hak mereka berkenaan kebebasan beragama. Kedua, deklarasi bahawa undang-undang Persekutuan dan undang-undang Negeri yang bercanggah dengan per. 11 Perlembagaan Persekutuanadalah tidak sah. Ketiga, deklarasi bahawa undang-undang Persekutuan dan undang-undang Negeri yang mengganggu hak mereka untuk keluar daripada agama Islam tidak sah.
Diputuskan:
Oleh Abdul Hamid Mohamad HMR
[1] Ketiga-tiga kategori deklarasi yang dipohon adalah terlalu umum. Bukanlah tugas mahkamah untuk mengkaji semua undang-undang Persekutuan dan Negeri untuk menentukan keberpelembagaannya atas alasan ia bercanggah dengan per. 11 Perlembagaan Persekutuan. Tugas mahkamah adalah untuk memutuskan kes di hadapannya berdasarkan fakta yang dikemukakan kepadanya dan undang-undang yang berkaitan.
[2] Memandangkan pertuduhan baru terhadap perayu-perayu yang masih belum dibicarakan, deklarasi-deklarasi yang mereka pohon merupakan satu usaha untuk mengagalkan pertuduhan tersebut.
[3] Mahkamah bersetuju dengan Hakim Mahkamah Tinggi bahawa adalah “premature” baginya membuat deklarasi yang akan memberi kesan kepada perjalanan kes-kes itu.
[4] Mengenai peruntukan-peruntukan undang-undang setakat yang berkenaan, ia telah pun dibicarakan dengan panjang lebar dalam penghakiman mengenai rayuan-rayuan habeas corpus itu (lihat [2002] 3 CLJ 766). Ianya terpakai dalam rayuan-rayuan ini dan tidak perlu diulangi.
Counsel:
Bagi pihak perayu – Haris Mohd Ibrahim (Mohana Kumar & Jahaberdeen Md Yunos); T/n Haris & Co
Bagi pihak responden pertama – YB Penasihat Undang-undang Negeri Kelantan
Bagi pihak responden kedua – Pengarah Jabatan Penjara Kelantan

Dilaporkan oleh Usha Thiagarajah

PENGHAKIMAN
Abdul Hamid Mohamad HMR:
Seperti yang disebut dalam penghakiman saya dalam empat lagi rayuan-rayuan berkaitan No. D-01-12-01, D-01-13-01, D-01-14-01, D-01-15-01 (selepas ini disebut “rayuan-rayuan habeas corpus itu), keempat-empat rayuan ini adalah oleh empat orang perayu yang sama. Rayuan-rayuan ini berbangkit daripada permohonan mereka untuk mendapatkan perintah-perintah perisytiharan (atau deklarasi) yang dibuat di Mahkamah Tinggi berasaskan fakta yang sama dengan fakta dalam rayuan-rayuan habeas corpus itu. Permohonan mereka telah ditolak oleh Hakim Mahkamah Tinggi. Mereka merayu ke mahkamah ini.
Saya tidak akan mengulangi fakta-fakta kes ini. Rujukan kepadanya, jika perlu, hendaklah dibuat kepada penghakiman dalam rayuan-rayuan habeas corpus itu.
Perintah-perintah yang dipohon itu adalah seperti berikut:
1. Deklarasi bahawa Plaintif mempunyai hak yang mutlak dan bebas untuk menganuti (‘profess’) dan mengamalkan agama pilihannya di bawah Artikel 11(1) Perlembagaan Persekutuan;
2.Deklarasi bahawa Artikel 11(1) Perlembagaan Persekutuanmempunyai keutamaan ke atas dan akan mengatasi mana-mana undang-undang persekutuan atau enakmen-enakmen negeri berkenaan dengan perkara pengakuan dan pengalaman agama pilihan Plaintif;
3.Deklarasi bahawa hak mutlak dan bebas Plaintif di bawah Artikel 11(1) Perlembagaan Persekutuanuntuk menganuti (‘profess’) dan mengamalkan agama pilihannya adalah ditentukan oleh Plaintif sendiri dan bukan oleh atau tertakluk kepada pengisytiharan dan/atau pengesahan mana-mana individu, badan, mahkamah dan/atau pihak yang lain;
4. Deklarasi bahawa peruntukan-peruntukan dalam mana-mana undang-undang persekutuan atau enakmen-enakmen negeri atau mana-mana peraturan-peraturan termasuk tetapi tidak terhad kepada Enakmen Majlis Agama Islam dan Adat Istiadat Melayu Kelantan 1994 (selepas ini dirujukki sebagai “Enakmen tersebut”) dan khususnya peruntukan Seksyen 2 Enakmen tersebut berkenaan definasi ‘orang Islam’ yang tidak mengiktirafkan Artikel 11(1) Perlembagaan Persekutuanatau adalah bertentangan dengannya, adalah tidak sah.
5. Deklarasi bahawa mana-mana undang-undang persekutuan dan enakmen-enakmen negeri berkenaan dengan agama Islam ke atas Plaintif termasuk tetapi tidak terhad kepada Enakmen tersebut dan mana-mana enakmen kanun jenayah syariah adalah tidak terpakai kepada Plaintif kerana Plaintif telah mengisytiharkan dirinya tidak lagi menganuti (profess) dan mengamal (practise) agama Islam selaras dengan Artikel 11(1) Perlembagaan Persekutuan.
6.Deklarasi bahawa peruntukan dalam Enakmen tersebut atau mana-mana undang-undang persekutuan dan/atau enakmen-enakmen negeri, sekiranya ada, yang kononnya memberi kuasa atau bidangkuasa kepada Mahkamah Syariah untuk menentukan sama ada Plaintif telah keluar dari agama Islam atau mengkehendaki suatu deklarasi dari Mahkamah Syariah sebagai pra-syarat sebelum Plaintif dapat atau dianggap telah keluar dari agama Islam adalah bertentangan dengan Artikel 11(1) Perlembagaan Persekutuan.
7. Deklarasi bahawa peruntukan-peruntukan dalam mana-mana undang-undang persekutuan atau enakmen-enakmen negeri atau mana-mana peraturan-peraturan termasuk tetapi tidak terhad kepada Enakmen tersebut yang menyekat atau melarang atau yang mengenakan syarat-syarat terhadap dan ke atas hak mutlak Plaintif sendiri untuk mengisytiharkan dirinya tidak lagi menganuti (profess) dan mengamal (practise) agama Islam adalah bertentangan dengan Perlembagaan Persekutuan khususnya Artikel 11(1)dan adalah tidak sah;
8.Berlanjutan dengan perintah (1) hingga (7) di atas, deklarasi bahawa berdasarkan Perlembagaan Persekutuan khususnya Artikel 11(1), Defendan Pertama dan Kedua atau mana-mana yang bertindak di bawah mereka tidak berhak mengenakan atau menentukan apa-apa syarat atau pra-syarat sebelum Plaintif dapat atau dianggap terkeluar dari agama dan kepercayaan Islam.
9.Perintah bahawa Defendan-Defendan memasukkan atau mencatatkan dalam rekod dan/atau buku-buku pendaftaran yang lain yang disimpan oleh Defendan-Defendan (sekiranya ada) bahawa Plaintif telah keluar dari atau telah meninggalkan agama dan kepercayaan Islam dan/atau bahawa Plaintif tidak lagi menganuti (profess) dan mengamal (practise) agama Islam;
10.Lain-lain perintah yang difikirkan perlu atau sesuai oleh Mahkamah yang Mulia ini;
11.Kos.
“Prayer” 9 telah ditarik balik.
Di awal hujah peguam perayu-perayu, beliau menegaskan bahawa perayu-perayu tidak meminta mahkamah ini mengisytiharkan bahawa mereka bukan orang Islam kerana mereka berhak menganut apa sahaja agama yang mereka hendak anuti. Beliau membahagikan perisytiharan yang dipohon oleh perayu-perayu kepada tiga kategori. Pertama, perisytiharan mengenai hak mereka berkenaan kebebasan beragama. Kedua, perisytiharan bahawa undang-undang Persekutuan dan undang-undang Negeri yang bercanggah dengan Perkara 11 adalah tak sah. Ketiga, perisytiharan bahawa undang-undang Persekutuan dan undang-undang Negeri yang mengganggu (interferes) hak mereka untuk keluar daripada agama Islam tak sah.
Pada pandangan saya, ketiga-tiga kategori perisytiharan yang dipohon seperti yang disebut itu adalah terlalu umum. Bukanlah tugas mahkamah untuk mengkaji semua undang-undang Persekutuan dan Negeri untuk menentukan keberpelembagaannya atas alasan ia bercanggah dengan Perkara 11 seperti seorang penyelidik (researcher). Tugas mahkamah adalah untuk memutuskan kes di hadapannya, berdasarkan fakta yang dikemukakan kepadanya dan undang-undang yang berkaitan. Perayu-perayu pun bukan datang ke mahkamah untuk belajar undang-undang. Melalui permohonan-permohonan habeas corpus mereka mahu dibebaskan daripada tahanan. Melalui permohonan-permohonan ini, memandangkan kepada adanya pertuduhan baru yang masih belum dibicarakan dan perisytiharan-perisytiharan yang mereka pohon, khususnya “prayer” kelima (bahawa semua undang-undang Persekutuan dan Negeri berkenaan dengan agama Islam tidak terpakai kepada mereka kerana mereka telah mengisytiharkan bahawa mereka tidak lagi menganuti dan mengamal agama Islam) adalah satu usaha untuk menggagalkan (pre-empt) pertuduhan itu.
Saya bersetuju dengan Hakim Mahkamah Tinggi bahawa adalah “premature” baginya membuat perisytiharan yang akan memberi kesan kepada perjalanan kes-kes itu.
Mengenai peruntukan-peruntukan undang-undang setakat yang berkenaan, ia telah pun dibincangkan dengan panjang lebar dalam penghakiman mengenai rayuan-rayuan habeas corpus itu. Ianya terpakai dalam rayuan-rayuan ini dan tidaklah perlu diulangi.
Kesimpulannya, rayuan-rayuan ini juga patut ditolak.
Saudara-saudara saya Dato’ Abdul Kadir Sulaiman dan Dato’ Alauddin Mohd. Sheriff HHMR telah membaca penghakiman ini dan bersetuju dengannya.
Rayuan-rayuan ini ditolak dengan kos kepada responden-responden. Deposit hendaklah dibayar kepada responden-responden untuk kos.

MING ANN HOLDINGS SDN BHD v. DANAHARTA URUS SDN BHD
COURT OF APPEAL, KUALA LUMPUR
ABDUL HAMID MOHAMAD, JCA; K C VOHRAH, JCA; FAIZA THAMBY CHIK, J
CIVIL APPEAL NO: W-02-698-2000
18 JUNE 2002
[2002] 3 CLJ 300

CIVIL PROCEDURE: Execution – Stay – Application for stay pending appeal – Test to be applied – Review of authorities – Special circumstances – Nugatory test – Whether appeal if successful rendered nugatory if stay not granted – Whether applicant’s appeal against money judgment – Whether applicant could be reimbursed in the event appeal was successful – Whether merits of appeal and validity of judgment to be taken into consideration

The applicant applied, by way of a summons-in-chambers, to stay the execution of a High Court judgment against it pending appeal. The grounds of the application were that there were special circumstances, that there were merits in the appeal and also that if stay was not granted, the appeal would be rendered nugatory. The application, however, was dismissed. Hence, the applicant’s appeal.
Held:
Per Abdul Hamid Mohamad JCA
[1] There is a unanimous view from the authorities that to grant or not to grant a stay of execution pending appeal is an exercise of discretion by the court on established principles. (p 403 f-g)
[2] The approach taken by most judges appears to be that a successful litigant should not be deprived of the fruits of a judgment obtained in his favour, unless there are special circumstances (or special grounds) that justify a stay of execution to be granted. The weight of authorities consider that special circumstances must be special, not ordinary, common or usual circumstances and that go to the execution of the judgment and not to the validity or correctness of the judgment (or merits of the appeal). The most important factor for consideration in granting a stay appears to be whether the appeal, if successful, is rendered nugatory. It does not matter whether the nugatory factor is considered under the head of “special circumstances”, so long as it is considered. (pp 403 h-i & 404 a-c )
[3] The Court of Appeal in See Teow Guan & Ors v. Kian Joo Holdings Sdn Bhd & Ors declared “special circumstances” as bad law and should no longer be followed. That could not be done in view of the Federal Court decisions in Re Kong Thai Sawmill (Miri) Sdn Bhd; Ling Beng Sung v. Kong Thai Sawmill (Miri) Sdn Bhd & Ors, Kerajaan Malaysia v. Jasanusa Sdn Bhd, Kerajaan Malaysia v. Dato Haji Ghani Gilong. (p 404 g)
[4] In See Teow Guan, supra, the learned judge found that the appeal would be rendered nugatory because it was doomed to failure. This court agreed that in an application for a stay of execution that the appeal if successful would be rendered nugatory is the paramount consideration. It matters not whether it is considered under the head of “special circumstances”, so long as it is considered with all other relevant factors. However, the nugatory test that the courts consider in an application for a stay of execution goes to the subject matter of the case and not the merits of the appeal. In other words, the appeal, if successful, is worthless because the appellant cannot be put into its former position. That the “appeal is doomed to failure” goes to the merits of the appeal and not to the execution. (p 405 e-g)
[5] Where the Court of Appeal or the Federal Court is concerned, the court that sits to hear the stay application is only constituted to hear the stay application and not the appeal. The appeal may not even be heard by the same panel of judges. Further, the grounds of judgment and the appeal records are not usually before the court. The court, too, does not have the benefits of the argument on the merits of the appeal. In the circumstances, as a general rule, it is not only premature but it is also unfair to the parties and wrong for the court, hearing an application for a stay, to make a finding that the “appeal is doomed to failure”, without any prospect of success”, “has no merits” and the like. (pp 405 h-i & 406 a-b)
[6] The case of See Teow Guan, supra, should not be treated as laying down new principles to be applied in an application for a stay of execution. It should be confined to its own facts in an application for a stay of proceedings. (p 406 f)
[7] The affidavit in support of the application herein stated that there were special circumstances, that there were merits in the appeal and also that if stay was not granted the appeal would be rendered nugatory. The function of the court is not to look at the phrases used but to look at the substance, consider the facts and the circumstances of the case in the light of the relevant factors that should be considered in the exercise of the discretion of the court. (p 406 h)
[8] The applicant’s allegation that the learned judge had unilaterally directed that the case be tried on issues after having fixed a date for a full trial was actually an allegation that went to the correctness or validity of the judgment. Further, on the merits of the appeal, this court would prefer to be neutral at this stage on the issue as it did not have the benefit of the grounds of judgment and a full argument on the merits. (p 407 a-d)
[9] The special circumstances referred to by the applicant was in fact an argument that if stay was not granted, the appeal, if successful would be rendered nugatory, or that the applicant, if successful in the appeal, could not be restored to its former position. The judgment was a money judgment and there was no allegation or evidence that the respondent was not in a financial position to repay the applicant if need be. Further, the respondent was Danaharta Urus Sdn Bhd. (p 407 e-f)
[10] The grounds relied on by the applicant were nothing more than a fear of losing its business, customers, suppliers and goodwill. Also, the applicant feared of not being able to collect its debts from third parties in the event it was wound-up. All that the applicant had to do to avoid such fears was to settle the judgment debt. The winding-up petition was still pending. The applicant still had every opportunity to contest it. Those factors were not special circumstances nor do they show that the appeal, if successful, would be rendered nugatory. Execution is a natural process after obtaining judgment and winding-up was one of them. (p 407 f-h)
[11] From the notes of proceeding, the respondent and the learned judge had been very accommodative with the applicant. Even after a final date of hearing, a number of postponements were granted to suit the applicant. In the circumstances, this was not a case in which the court in the exercise of its discretion should grant a stay. (p 408 a-b)
[Bahasa Malaysia Translation Of Headnotes]
Pemohon telah memohon melalui saman dalam kamar untuk menggantung perlaksanaan penghakiman Mahkamah Tinggi terhadapnya sementara menantikan keputusan rayuannya terhadap penghakiman tersebut. Alasan-alasan permohonan tersebut adalah bahawa terdapatnya keadaan-keadaan khas, terdapat merit-merit di dalam rayuan tersebut dan juga bahawa jika penggantungan tidak diberikan, rayuan tersebut akan menjadi sia-sia. Permohonan tersebut, walaubagaimanapun, telah ditolak. Maka, rayuan ini.
Diputuskan:
Oleh Abdul Hamid Mohamad HMR
[1] Terdapat pandangan sepakat daripada otoriti-otoriti bahawa untuk memberikan atau tidak memberikan penggantungan perlaksanaan sementara menantikan rayuan adalah merupakan perlaksanaan budibicara oleh mahkamah atas prinsip-prinsip yang tetap.
[2] Pendekatan yang diambil oleh kebanyakan hakim nampaknya bahawa seseorang litigan yang berjaya tidak seharusnya dilucut daripada hak menikmati hasil penghakiman yang diperolehinya kecuali terdapatnya keadaan-keadaan khas (atau alasan-alasan khas) yang mewajarkan penggantungan perlaksanaan diberikan. Otoriti-otoriti menekankan bahawa keadaan-keadaan khas semestinya bersifat khas, bukan biasa, keadaan-keadaan yang biasa atau lazim dan yang berhubung dengan perlaksanaan penghakiman tersebut dan bukan kepada keesahan atau ketepatan penghakiman tersebut (atau merit rayuan tersebut). Faktor paling penting untuk dipertimbangkan dalam memberikan sesuatu penggantungan nampaknya adalah sama ada rayuan tersebut, jika berjaya, adalah menjadi sia-sia. Ianya tidak menjadi hal sama ada faktor sia-sia dipertimbangkan di bawah tajuk “special circumstances”, asalkan ianya dipertimbangkan.
[3] Mahkamah Rayuan di dalam See Teow Guan & Ors v. Kian Joo Holdings Sdn Bhd & Ors mengisytiharkan “special circumstances” sebagai tidak wajar di sisi undang-undang dan tidak seharusnya diikuti lagi. Itu tidak dapat dilakukan memandangkan keputusan-keputusan Mahkamah Persekutuan di dalam Re Kong Thai Sawmill (Miri) Sdn Bhd; Ling Beng Sung v. Kong Thai Sawmill (Miri) Sdn Bhd & Ors, Kerajaan Malaysia v. Jasanusa Sdn Bhd, Kerajaan Malaysia v. Dato Haji Ghani Gilong.
[4] Di dalam See Teow Guan, supra, hakim yang bijaksana mendapati bahawa rayuan tersebut akan menjadi sia-sia kerana ianya pasti akan gagal. Mahkamah ini bersetuju bahawa di dalam sesuatu permohonan untuk penggantungan perlaksanaan bahawa sekiranya rayuan tersebut berjaya ianya akan menjadi sia-sia merupakan pertimbangan yang paling penting. Ianya tidak menjadi hal sama ada ianya dipertimbangkan di bawah tajuk “special circumstances”, asalkan ianya dipertimbangkan bersama kesemua faktor-faktor lain yang relevan. Walaubagaimanapun, ujian sia-sia yang dipertimbangkan oleh mahkamah dalam sesuatu permohonan untuk penggantungan perlaksanaan berhubung dengan hal perkara kes tersebut dan bukannya merit-merit rayuan tersebut. Dalam ertikata lain, rayuan tersebut, jika berjaya, adalah tidak berguna kerana perayu tidak boleh kembali kepada keadaannya yang dahulu. Bahawa “appeal is doomed to failure” berhubung dengan merit-merit rayuan tersebut dan tidak kepada perlaksanaan tersebut.
[5] Di mana ianya berkaitan dengan Mahkamah Rayuan atau Mahkamah Persekutuan, mahkamah yang bersidang untuk mendengar permohonan penggantungan hanya diberi kuasa untuk mendengar permohonan penggantungan tersebut dan bukan rayuan tersebut. Rayuan tersebut mungkin tidak akan juga didengar oleh panel hakim-hakim yang sama. Selanjutnya, alasan-alasan penghakiman dan rekod-rekod rayuan selalunya tidak dikemukakan di hadapan mahkamah. Mahkamah juga tidak mempunyai manfaat hujahan atas merit-merit rayuan tersebut. Dalam keadaan tersebut, secara umumnya, ianya bukan hanya pra-masa tetapi adalah juga tidak adil kepada pihak-pihak tersebut dan salah bagi mahkamah, yang mendengar sesuatu permohonan untuk penggantungan, untuk membuat keputusan bahawa “appeal is doomed to failure”, “without any prospect of success”, “has no merits” dan seumpamanya.
[6] Kes See Teow Guan, supra, tidak seharusnya dianggap sebagai membentangkan prinsip-prinsip baru untuk dipakai di dalam sesuatu permohonan untuk penggantungan perlaksanaan. Ianya haruslah terlingkung kepada fakta-faktanya tersendiri di dalam sesuatu permohonan untuk penggantungan prosiding.
[7] Afidavit yang menyokong permohonan di sini menyatakan bahawa terdapatnya keadaan-keadaan khas, bahawa terdapatnya merit-merit di dalam rayuan tersebut dan juga bahawa jika penggantungan tidak diberikan rayuan tersebut akan menjadi sia-sia. Fungsi mahkamah bukannya untuk melihat ungkapan-ungkapan yang digunakan tetapi melihat pada substannya, pertimbangkan fakta-fakta dan keadaan-keadaan kes tersebut memandangkan faktor-faktor relevan yang harus dipertimbangkan dalam melaksanakan budibicara mahkamah tersebut.
[8] Dakwaan pemohon bahawa hakim yang bijaksana telah secara sebelah pihak mengarahkan supaya kes tersebut dibicarakan atas isu-isu selepas menetapkan satu tarikh untuk perbicaraan penuh adalah sebenarnya satu dakwaan terhadap ketepatan atau keesahan penghakiman tersebut. Selanjutnya, berdasarkan merit-merit rayuan tersebut, mahkamah ini lebih suka bersikap neutral di peringkat ini atas isu tersebut kerana ianya tidak mempunyai manfaat alasan-alasan penghakiman dan hujahan sepenuhnya atas merit-merit tersebut.
[9] Keadaan-keadaan khas yang dirujuk oleh pemohon adalah pada hakikatnya suatu hujahan bahawa jika penggantungan tidak diberikan, rayuan tersebut, jika berjaya akan menjadi sia-sia, atau bahawa pemohon tersebut, jika berjaya di dalam rayuan tersebut, tidak boleh dikembalikan semula kepada kedudukannya yang dahulu. Penghakiman tersebut adalah penghakiman wang dan tidak terdapat dakwaan atau keterangan bahawa responden tidak mampu di sisi kewangan untuk membayar balik pemohon tersebut jika diperlukan. Lagi, responden tersebut adalah Danaharta Urus Sdn Bhd.
[10] Alasan-alasan yang diharapkan oleh pemohon adalah tidak lebih daripada perasaan bimbang akan kehilangan perniagaannya, pelanggan, pembekal-pembekal dan nama baik. Juga, pemohon bimbang tidak akan dapat mengutip hutang-hutangnya daripada pihak-pihak ketiga sekiranya ianya digulung. Apa yang harus dilakukan oleh pemohon untuk mengelakkan kebimbangan sedemikian ialah menjelaskan hutang penghakimannya. Petisyen penggulungan masih menantikan penyelesaian. Pemohon masih mempunyai setiap peluang untuk mencabarnya. Faktor-faktor itu bukannya keadaan-keadaan khas dan tidak juga menunjukkan bahawa rayuan tersebut, jika berjaya, akan dijadikan sia-sia. Perlaksanaan adalah suatu proses biasa selepas mendapatkan penghakiman dan penggulungan adalah salah satu daripadanya.
[11] Daripada nota-nota prosiding, responden dan hakim yang bijaksana telah bekerjasama dengan pemohon. Malahan selepas satu tarikh perbicaraan yang muktamad, beberapa penangguhan telah diberikan mengikut kesesuaian pemohon. Dalam keadaan tersebut, ini bukannya satu kes di mana mahkamah dalam melaksanakan budibicaranya seharusnya memberikan satu penggantungan.
[Permohonan ditolak.]
Reported by Usha Thiagarajah

Case(s) referred to:
Ajaib Singh v. Jeffrey Fernandez [1970] 1 LNS 4, [1971] 1 MLJ 139 (refd)
Alexander v. Cambridge Credit Corp Ltd [1985] 10 ACLR 42 (refd)
All Persons In Occupation of the House and the Wooden Stores Erected on a Portion of Land Held Under Grant No 26977 for Lot 4271 in the Township of Johor Bahru, Johor v. Punca Klasik Sdn Bhd [1998] 5 CLJ 49 (refd)
Che Wan Development Sdn Bhd v. Co-operative Central Bank Bhd [1989] 2 CLJ 584; [1989] 1 CLJ (Rep) 366 (refd)
Dickson Trading (S) Pte Ltd v. Transmarco Ltd [1989] 2 MLJ 408 (refd)
Gentali (M) Sdn Bhd v. Kawasaki Sunrock Sdn Bhd [1997] 1 CLJ 70 (refd)
Kerajaan Malaysia v. Dato’ Hj Ghani Gilong [1995] 3 CLJ 161 (refd)
Kerajaan Malaysia v. Jasanusa Sdn Bhd [1995] 2 CLJ 701 (refd)
Leong Poh Shee v. Ng Kat Chong 1965] 1 LNS 90, [1966] 1 MLJ 86 (refd)
Lim Joo Thong v. Koperasi Serbaguna Taiping Barat Bhd [1998] 1 CLJ 947 (refd)
Matang Holdings Bhd & Ors v. Dato’ Lee San Choon & Ors [1985] 2 MLJ 406 (refd)
Mohamed Mustafa v. Kandasamy (No 2) [1979] 2 MLJ 126 (refd)
Monk v. Bartram [1981] QB 346 (refd)
Perwira Affin Bank Bhd v. KI Production Sdn Bhd [2000] 4 CLJ 482 (refd)
Perwira Affin Bank Malaysia Bhd v. Sunny Travel & Tour Sdn Bhd & Ors (Mallal’s Digest 4th edn, vol 2(2) para 4254) (refd)
Perwira Habib Bank Malaysia Bhd v. Syarikat Johore Tenggara Sdn Bhd & Ors [1989] 2 CLJ 470; [1989] 2 CLJ (Rep) 248 (refd)
Re Kong Thai Sawmill (Miri) Sdn Bhd; Ling Beng Sung v. Kong Thai Sawmill (Miri) Sdn Bhd & Ors (No 2) [1974] 1 LNS 136 , [1976] 1 MLJ 131 (refd)
Salim Ismail & Ors v. Lebby Sdn Bhd (No 1) [1997] 1 CLJ 98 (refd)
Sarwari Ainuddin v. Abdul Aziz Ainuddin [1999] 8 CLJ 534 (refd)
See Teow Guan & Ors v. Kian Joo Holdings Sdn Bhd & Ors [1997] 2 CLJ 299 (dist)
Serangoon Garden Estate Ltd v. Ang Keng [1953] 1 LNS 98, [1953] 19 MLJ 116 (refd)
Syarikat Berpakat v. Lim Kai Kok [1983] 1 MLJ 406 (refd)
The “Yih Shen”: Lai Lai Yin v. MV “Yih Shen”, Owners of and Other Persons Interested [1986] 2 MLJ 65 (refd)
Tropiland Sdn Bhd v. DCB Bank Bhd & Anor [2000] 1 CLJ 568 (refd)
Wu Shu Chen v. Raja Zainal Abidin Raja Hussain & Anor [1996] 2 CLJ 353 (refd)

Legislation referred to:
Companies Act 1965, s. 218
Rules of the High Court 1980, O. 33 r. 2, O. 47 r. 1, O. 89
Counsel:
For the applicant/appellant – Richard Tee; M/s SK Lim & Assoc
For the respondent – N Chandran; M/s Albar & Partners

JUDGMENT
Abdul Hamid Mohamad JCA:
In this notice of motion the applicant prays for an order to stay the execution of the judgment of the High Court dated 11 August 2000 until the appeal against that judgment is heard and decided upon. We dismissed the application.
An action was commenced in the High Court at Kuala Lumpur (Civil Suit No. D6-22-1211-97) by Bank Bumiputra Malaysia Berhad, (the former plaintiff) against the applicant claiming a sum of RM1,137,997.79 and costs. The action was based on a banking facility in the form of an “Irrevocable Letter of Credit” given by the respondent to the applicant.
The former plaintiff applied for a summary judgment. The senior assistant registrar allowed the application and gave judgment for the former plaintiff. The applicant appealed to the judge in chambers. On 31 March 1999, after hearing the appeal, the learned judge made the following order:
Court:
I have read the written submission and there appears to be an issue as to who and on whose authority the lien of RM1,046,200/- was released to third party and whether the person giving the instruction is an authorised person. The court requires evidence to be tested at the trial.
I accordingly allow the appeal with costs of RM1,800 all-in.
On 3 November 1999, the case came up for a date of hearing to be fixed. Counsel for the former plaintiff was present. Counsel for the applicant was absent. The court fixed 21 January 2000 for the hearing of the case with a note “(No postponement) one day.”
On 21 January 2000, counsel for both parties were present. Respondent’s counsel informed the court that the debt of the applicant company had been taken over by the respondent and that both parties were negotiating a settlement of the debt and applied for a mention date in two months.
The notes of proceedings recorded by the learned judge reads as follows:
If the matter cannot by then be settled, then the parties have decided to go under Order 33 r. (2) on the question whether the “lien” was intended to be a specific charge over the facility, or was of a general nature; and that by itself would decide the outcome of the liability on the quantum.
It must be emphasised that on that day the counsel for the applicant was present.
The learned judge adjourned the case to 1 March 2000 for mention.
On 1 March 2000, counsel for both sides appeared before the learned judge. The notes recorded by the learned judge reads:
Solicitors inform that no settlement reached and have decided to make a written submission on the point of law under Order 33 Rule 2 as to whether the lien given in favour of the Plaintiff was a general or specific in nature; and which would decide the issue on liability. Mr. Loy needs two weeks to have another round with his client towards settlement.
Again, the court adjourned the case to 22 March 2000 for mention.
On 22 March 2000, counsel for the respondent was present. The applicant’s counsel was represented by a “pupil in chambers” who informed the court that the applicant’s counsel wanted to discharge himself and required time to file the necessary papers.
The learned judge recorded as follows:
To 27th April 2000 (H) Final and also the discharge application to be heard on the same date.
On 27 April 2000, respondent’s counsel appeared in court. The applicant company was not represented by counsel. A director of the applicant company appeared. He applied for postponement because the applicant’s counsel had discharged himself. The counsel for the respondent had no objection. The court again postponed the case to 9 May 2000, again for mention to enable the applicant to engage another counsel and to fix a date of hearing.
On 9 May 2000, the respondent’s counsel was present in court. The applicant was represented by a newly appointed solicitor, Mr. Richard Tee. This is what the learned judge recorded:
Mr. Vijay Kumar for the Plaintiff.
Mr. Richard Tee for the Defendant the newly appointed solicitors, who undertake to file a written submission for a point under Order 33 Rule 3, whether the lien given to the Bank was a general or specific lien.
COURT: To 3rd July 2000 (H) (Directions given). (No postponement).
And this is what happened on 3 July 2000:
3rd JULAI 2000
Perbicaraan
Mr. Richard Tee together with Miss Y. H. Chin for the Defendant.
Miss Phang Sweet Ping for the Plaintiff.
Mr. Richard Tee wants postponement to amend his pleadings.
Miss Phang objects says ready to proceed as the solicitors had on 21st January 2000, and 1st March 2000, agreed to proceed only on a point of law under Order 33 Rule 2 of the Rules of the High court; and should be estopped from going back to the writ and amendments.
COURT:
Request for postponement is granted conditionally upon the payment of the sum of RM1,137,997.79 sen into court; or to produce an irrevocable Demand Bank guarantee in favour of the Plaintiff within 14 days of today’s date undertaking to pay the sum only upon a final Judgment. It is further ordered that if the sum or guarantee as the case may be is not deposited into Court within the 14 days; then default Judgment shall forthwith be entered against the Defendant.
COURT: To 19/7/2000 (Mention).
The court again postponed the case to 19 July 2000 for mention.
This is what happened on 19 July 2000, as recorded by the learned judge:
19HB JULAI 2000
Kandungan (1).
Mr. Vijay Kumar for the Plaintiff.
Mr. Richard Tee for the Defendant.
The Court directed the Defendants at the last hearing date on 3rd July 2000, to deposit the sum or to produce a Bank guarantee as a pre-condition in favour of the Plaintiffs within 14 days of 3rd July i.e. by 17th July 2000. Mr. Tee informs Court that his clients have attempted to obtain the Bank guarantee; but the Bank requires more time to process the application and or take counter security as a consideration for the loan and thus needs extension of time of two weeks to finalise.
Mr. Vijay says his clients object to this request because Danaharta is involved.
COURT: Further time of 14 days granted. Court to 11/8/2000 (Final) Mention.
On 11 August 2000, counsel for both parties were present. Counsel for the respondent had already filed his written submission as directed by the learned judge. Counsel for the applicant failed to do the same. The court made the following order:
… maka Mahkamah memutuskan bahawa lien yang diberikan oleh Defendan kepada Plaintif adalah secara am iaitu lien secara am, pihak Plaintif mempunyai hak untuk menolak (“set-off”) lien am tersebut atas jumlah yang tertunggak dan kena dibayar oleh pihak Defendan DAN SETELAH MENDENGAR Encik V. Vijakumar peguam bagi pihak Plaintif dan Encik Richard Tee Sze Ping peguam bagi pihak Defendan DENGAN INI ADALAH DIPERINTAHKAN bahawa Defendan membayar kepada pihak Plaintif jumlah wang sebanyak RM1,137,997.79 setakat 31hb Ogos 1997 dan faedah selanjutnya ke atas jumlah tersebut pada kadar 5% setahun atas Kadar Asas Pinjaman (BLR) iaitu 9.65% setahun dari 1hb September 1997 sehingga tarikh penyelesaian penuh dan kos RM20,0000. 00.
The applicant appealed against the order. The applicant then filed a summons in chambers to stay the execution of the judgment. The application was dismissed. Hence, the applicant made the present application in this court.
In an affidavit in support of the application, the director of the applicant says that the applicant’s appeal has merits because the learned judge only heard and decided the claim by the respondent on issues of law without hearing evidence of witnesses. According to him, there are issues of facts which can only be decided after hearing evidence of witnesses. He also avers that there are special circumstances (“fakta-fakta luarbiasa”) to support the application. The “special circumstances” are that there are other companies that depend on the applicant company to obtain the supply of traditional medicines from China. The execution of judgment by way of company’s winding-up by the respondent will cause the applicant company to lose its ability to continue to trade and the goodwill that has been established between the applicant company, the supplier and the consumers. That loss, according to the applicant, cannot be compensated with money. The business started in 1987 and has continued without any disturbance (“tanpa gangguan”) until now. If it is wound up, its business might be seized (“dirampas”) by others. A winding-up order will also affect the applicant’s ability to collect its debts from its debtors. He says that if the stay is not granted then the appeal will be rendered academic and nugatory. He says that as proof that it is never the applicant’s intention to escape from its responsibility, the applicant has offered a piece of land in Johore belonging to a third party to be charged to the respondent as security but it was not accepted by the respondent. The respondent has on 18 January 2001 issued a notice under s. 218 of the Companies Act 1965 demanding payment. The respondent has on 2 April 2001 filed the petition of appeal and served it on the applicant on 15 May 2001. The date of hearing was fixed on 12 July 2001.
In its affidavit in reply, the respondent through its General Manager, inter alia, denies that the learned judge had unilaterally directed that the trial be a trial on issues under O. 33 r. 2, Rules of the High Court 1980. Referring to the notes of evidence, he says that it was agreed to by the former counsel for the applicant. He also says that the new counsel for the applicant had, on 9 May 2000 agreed to and undertook to file written submission but failed to do so. He referred to the various postponements and indulgence of the respondent and the court, all of which I have narrated earlier and will not repeat. The respondent says that it is a money judgment, and there are no special circumstances that warrants a stay of execution to be granted.
It was not my intention, at first, to review the law on the subject of stay of execution pending appeal. However, in view of the judgment of this court in See Teow Guan & Ors v. Kian Joo Holdings Sdn. Bhd. & Ors [1997] 2 CLJ 299, I think it is time that the authorities be reviewed. I only hope that I am not causing further confusion on the subject.
I shall take the cases in chronological order.
Serangoon Garden Estate Ltd. v. Ang Keng [1953] 19 MLJ 116, though only a judgment of the High Court (Singapore), is perhaps the most quoted case on the subject. That case is an appeal from the District Court against an order granting a stay of execution in a case where an “order for possession” had been made. The subject matter was an illegal pig-sty. It must be noted that when the application was made, not at the conclusion of the case but subsequently, no affidavit in support was filed. This is what Brown J says in his judgment:
The learned District Judge had a discretion to grant a stay of execution. And I should not think it right to interfere with the exercise of his discretion if I was satisfied that he had exercised it on correct principles. There is no rule of practice limiting the exercise of his discretion. But it is a clear principle that the Court will not deprive a successful party of the fruits of his litigation until an appeal is determined, unless the unsuccessful party can show special circumstances to justify it. The only ground, so far as appears in the written grounds for granting this stay, is that if the defendant succeeded in his appeal he could not be restored to the same position as before because the plaintiffs would have removed his pig-sty. That ground, standing alone, in my opinion cannot be a sufficient ground on which to grant a stay of execution. It seems to me that to hold otherwise would be to establish a precedent, and in effect to lay down a rule of practice, that in all cases where the defendant cannot be restored to his original position if his appeal succeeds, a successful litigant is to be deprived of the fruits of his litigation until such time as the appeal is determined. Such a ground might well be an important factor to take into consideration if there were other grounds. If, for example, another ground had been that there were merits in the appeal, that fact coupled with the fact that the defendant, if successful, could not be restored to his original position might well have afforded special circumstances to justify the learned District Judge in exercising his discretion to grant a stay; and I should not have thought it right to interfere.
The following points emerge from that judgment:
(1)granting a stay pending appeal is an exercise of discretion;
(2)there is no rule of practice limiting the exercise of the discretion;
(3)it is a clear principle that the court will not deprive a successful party of the fruits of his litigation until the appeal is determined unless there are special circumstances;
(4)the ground that, if the defendant is successful in his appeal, he cannot be restored to the same position as before, standing alone, is not a sufficient ground on which to grant a stay, however, it is “an important factor” to take into consideration, if there are other grounds, for example merit of the appeal. Both grounds, together, may well amount to “special circumstances.”
Leong Poh Shee v. Ng Kat Chong [1966] 1 MLJ 86 is a judgment of the High Court. The plaintiff had obtained a judgment in default of appearance for the land in question to be transferred to him. The defendant applied for a stay of execution. The relevant part of the judgment of Raja Azlan Shah J (as he then was) reads as follows:
Although the court has an unqualified discretion to grant a stay it has never been the practice to do so unless it is supported by an affidavit of special circumstances. The law on the point is well settled. I quote a passage from Halsbury’s Laws of England, 3rd Edition, Volume 16, paragraph 51 at page 35:
The court has an absolute and unfettered discretion as to the granting or refusing a stay, and as to the terms upon which it will grant it, and will, as a rule, only grant it if there are special circumstances, which must be deposed to on affidavit unless the application is made at the hearing.
I would also adopt a passage in Mallal’s Supreme Court Practice at page 573 where the learned author said:
A stay will not be allowed unless there are special circumstances.
The substantial question now to be posed, as I see it, is whether the allegation that the land office might take three years to sub-divide the land in question affords special circumstances for a stay. Special circumstances, as the phrase implies, must be special under the circumstances as distinguished from ordinary circumstances. It must be something exceptional in character, something that exceeds or excels in some way that which is usual or common. For the land office to sub-divide a piece of land is common or usual. For it to do so for a period of one, two or three years is usual or common. It is nothing distinctive or out of the way and therefore, to my mind, that by itself does not constitute special circumstances to persuade the court to stay the execution.
In Ajaib Singh v. Jeffrey Fernandez [1971] 1 MLJ 139, Yong J referred to a number of cases, including a Privy Counsel judgment from India and concluded:
After consulting these and other authorities up to the present day I am of the opinion that an application for stay of proceedings should be made promptly, and it must be proved to the satisfaction of the court that special circumstances exist such as if the stay was not granted serious or irreparable injury would result to the party applying.
It is to be noted that the court considered the fact whether the application was made promptly was also relevant. This is understandable in an exercise of a discretion. Secondly, the learned judge treated “serious or irreparable injury” as an example of special circumstances.
Re Kong Thai Sawmill (Miri) Sdn. Bhd.; Ling Beng Sung v. Kong Thai Sawmill (Miri) Sdn. Bhd. & Ors. (No. 2) [1976] 1 MLJ 131 is a judgment of the Federal Court. In that case the first respondent applied to the then Federal Court for leave to appeal to the Yang DiPertuan Agong (Privy Council) and for a stay of execution. Lee Hun Hoe CJ (Borneo), in his judgment referred to a number of English cases and held that no special circumstances were shown to support the application for stay of execution and dismissed the application. This is what the learned Chief Justice (Borneo), inter alia, said in his judgment:
It is my view that where stay of execution has previously been refused by this court after a hearing of an appeal lasting over a week, an application made to the same court for stay pending an appeal must be supported by special circumstances. Allegations that there has been misdirections that the verdict of judgement was against the weight of evidence, or that there was no evidence to support the verdict or judgment, are not special circumstances on which the court will grant the application. See Monk v. Bartram [1981] QB 346. Those are matters to be decided in the proper forum.
Mohamed Mustafa v. Kandasamy (No. 2) [1979] 2 MLJ 126 is a judgment of the Federal Court consisting of Lee Hun Hoe CJ (Borneo), Wan Suleiman FJ and Abdul Hamid J (as he then was). It was an application for leave to appeal to the Yang DiPertuan Agong and for a stay of execution. The court granted both applications, the stay being granted “to maintain status quo.”
The judgment of the court was delivered by Abdul Hamid J (as he then was).
On the question of stay this is what the learned judge (as he then was) said:
On the question of stay of execution it is I think settled law that the granting of such a stay is a matter of the court’s discretion, and it is true that the exercise of such discretion must be founded upon established judicial principles. One of the determining factors that calls for consideration is whether by not making an order to stay of the execution it would make the appeal if successful, nugatory in that it would deprive an appellant of the results of the appeal. How pertinent that factor would be may vary according to the circumstances of each particular case.
No reference was made to earlier decisions, local or otherwise. No mention was made about “special circumstances” or “merits of the appeal”, but the “nugatory test” was used in the sense that “it would deprive an appellant the results of the appeal.”
In Syarikat Berpakat v. Lim Kai Kok [1983] 1 MLJ 406, Hashim Yeop A. Sani J (as he then was) held:
Held: as a rule the court will only grant a stay if there are special circumstances. In this case no special circumstances had been shown to justify a stay.
The learned judge (as he then was) referred to Serangoon Garden Estate Ltd. [1953] 19 MLJ 116 and Monk v. Bartram [1891] QB 346.
In Matang Holdings Bhd. & Ors. v. Dato’ Lee San Choon & Ors. [1985] 2 MLJ 406, there was an application for a stay of the order of dissolution of injunction pending appeal to the higher court. Yusoff Mohamed J (as he then was) referred to Leong Poh Shee [1966] 1 MLJ 86, Serangoon Garden Estate Ltd. [1953] 19 MLJ 116 and Ajaib Singh v. Jeffrey Fernandez [1971] 1 MLJ 139, all mentioned earlier and held held:
There are no special grounds in this application except the appeal pending the merits of which have been discussed above.
In my view, the application should be dismissed.
The “Yih Shen”: Lai Lai Yin v. M.V. “Yih Shen”, Owners Of And Other Persons Interested [1986] 2 MLJ 65 is a judgment of Mohamed Dzaiddin J (as he then was). That was an application for a stay of execution of an order for the vessel “YIH SHEN” to be appraised and sold pendente lite. The grounds were, first, the defendants intended to appeal against the said order and, secondly, unless restrained, the vessel, if sold prior to the appeal will render the appeal, if successful, nugatory. The learned judge (as he then was) dismissed the application. The learned judge (as he then was), inter alia, said:
This is a case where the Court has an absolute and unfettered discretion to grant or refuse the stay. Halsbury’s Laws of England, 4th Edition, Vol. 17, para. 455 states as follows:
The court has an absolute and unfettered discretion as to the granting or refusing of a stay, and as to the terms upon which it will grant it, and will, as a rule, only grant a stay if there are special circumstances, which must be deposed to on affidavit unless the application is made at the hearing.
Thus, it is incumbent upon the defendant in this case to show from the affidavit the special circumstances to enable this court to grant a stay of execution. Examples of “special circumstances” are many and are enumerated at the footnote of Halsbury’s Laws (supra). However, the leading authority relied upon by the defendant is Wilson v. Church (No. 2) where Cotton LJ laid down the principle at p. 458 “… when a party is appealing, exercising his undoubted right to appeal, this Court ought to see that the appeal, if successful, is not nugatory.” This principle was applied in Orion Property Trust Ltd. v. Du Cane Court Ltd.; and in the local case of Re Kong Thai Sawmill (Miri) Sdn. Bhd.
From the affidavit of Mr. Chan and the submission of counsel I cannot find anything which would amount to being nugatory in the event the appeal (Supreme Court Civil Appeal No. 173 of 1985) being successful.
I should also add that the fact that the defendants believe they have a reasonable chance of success in the appeal is no ground for granting a stay. See: Atkins v. Great Western Railway Co., where the English Court of Appeal held that strong grounds of appeal are not sufficient to grant the application.
In Perwira Habib Bank Malaysia Bhd. v. Sunny Travel & Tour Sdn. Bhd. & Ors., Mallal’s Digest 4th edn, vol. 2(2) para; 4254, in a judgment dated 13 August 1988, Siti Norma Yaakob J (as she then was) held:
(1) courts have an inherent jurisdiction to stay proceedings but only on grounds which are relevant to a stay. It does not extend to grounds which are properly matters of defence of law or relief in equity, for these must be raised in the action itself. Special circumstances must be shown which must relate to the enforcement of the judgment and not those which go to its validity or correctness;
In Perwira Habib Bank Malaysia Bhd. v. Syarikat Johore Tenggara Sdn. Bhd & Ors [1989] 2 CLJ 470; [1989] 2 CLJ (Rep) 248, Gunn Chit Tuan J (as he then was), in setting aside an order for a stay of execution, held that in hearing commercial cases, courts should recognise business realities by taking notice of the commercial purpose of guarantees, the purport, utility and obvious intent of which are to ensure that creditors would be paid early by guarantors when the principle debtors are unable or unwilling to do so.
In Che Wan Development Sdn. Bhd. v. Co-operative Central Bank Bhd. [1989] 2 CLJ 584; ([1989] 1 CLJ (Rep) 366), NH Chan J (as he then was) wrote a lengthy judgment, relying mainly on English cases again applied the “special circumstances” test. In his judgment, the learned judge, inter alia, says at p. 588 (p. 370) of the report:
Put shortly, it is this: that the court has a discretion as to the granting or refusing of a stay of execution pending appeal and that as a rule it will only grant a stay if there are special circumstances, which circumstances must be deposed in the affidavit supporting the application.
On discretion of the court, the learned judge says:
In this country, the words of s. 73 of the Courts of Judicature Act 1964 are, ‘unless the court… so orders’. Plainly, this gives a discretion to the court. A judicial discretion, no doubt, which must be guided by proper rules founded on principle.
On special circumstances, the learned judge, inter alia, says:
It is plain that the validity or correctness of the decision appealed from are not special circumstances.
At p. 589 (p. 371) of the report:
Merits or strong grounds for an appeal are also not special circumstances.
At p. 595 (p. 376) of the report:
Again there is no evidence which has been deposed on affidavit which would enable this court to find that if a stay is granted the appeal if successful would become nugatory.
In the concluding paragraph of the judgment, at p. 597 (p. 377) of the report, the learned judge says:
The plaintiff has obtained judgment, and it seems to me impossible to suggest that on the basis of the orders which I have made, the plaintiff ought to be deprived of its rights on the judgment the fruits of which it would have been fully entitled. Therefore, whether the judgment and the orders which I have made are right or wrong and that is a matter which may be tested in the Supreme Court I reach the conclusion that there is nothing in the law and the facts which I have already mentioned which would make it just or proper for me to grant a stay of execution.
We now come to two Federal Court judgments both delivered on 3 May 1995. They are Kerajaan Malaysia v. Jasanusa Sdn. Bhd. [1995] 2 CLJ 701 and Kerajaan Malaysia v. Dato’ Hj. Ghani Gilong [1995] 3 CLJ 161. Both are income tax cases. Both applied the “special circumstances” test. The judgment of the court in both cases were written by Edgar Joseph Jr. FCJ. I shall only quote from the second case, ie, Kerajaan Malaysia v. Dato’ Haji Ghani Gilong. In that case, the appellant having obtained a summary judgment, the respondent applied for and obtained an order for a stay of execution of the judgment. In allowing the appeal, the learned judge said at p. 169 of the report:
However, in the instant appeal, the question arose whether having regard to the particular circumstances of the case, the judge was entitled to exercise his power to grant a stay.
We noted, that in the instant appeal, there was no formal application for stay supported by an affidavit affirmed by the taxpayer or his duly authorised agent, alleging special circumstances to justify the making of the order for stay. In other words, although the onus was upon the taxpayer to demonstrate special circumstances justifying a stay, there was no material upon which the judge could have granted the order for a stay. The Jasanusa case, was therefore readily distinguishable, on the facts. We thus had no option but to discharge the order for stay.
Three months later, on 2 August 1995, Abdul Malik Ishak J delivered his judgment in Wu Shu Chen v. Raja Zainal Abidin bin Raja Hussain & Anor [1995] 2 MLJ 224. That is a case where an application for a stay of execution pending appeal that involves sum of money amounting to RM25,892,000. The decision is well summarised in the headnote:
(2) The court will not deprive a successful party of the fruits of his litigation until an appeal is determined, unless the unsuccessful party can show special circumstances to justify it. What may amount to special circumstances it a question of fact in each case. It must be something distinctive and out of the way. An appeal to the Court of Appeal and the fact that a large amount of money is involved do not constitute special circumstances.
(3)The applicant had failed to establish by affidavit evidence that the first defendant was insolvent and therefore would not be in a position to reimburse the award and to pay damages in the event that the applicant were to succeed in her appeal.
Salim bin Ismail & Ors. v. Lebbey Sdn. Bhd. (No. 1) [1997] 1 CLJ 98 is a judgment of this court consisting of Siti Norma Yaakob, Mahadev Shankar JJCA and Abdul Malik Ahmad J (as he then was). Even though the judgment was delivered on 14 August 1995, which is about three months prior to See Teow Guan & Ors v. Kim Joo Holdings Sdn Bhd & Ors [1997] 2 CLJ 299, it was reported later than See Teow Guan, in the Malayan Law Journal. In that case the respondent had obtained a summary eviction order under O. 89 of the Rules of the High Court 1980. The applicant, having failed to get an order in the High Court, applied for a stay of execution in the Court of Appeal. The Court of Appeal granted a stay. Mahadev Shankar JCA, delivering the judgment of the court, inter alia, said:
It is to be noted that the orders in the court below were not made after full trial, but on a summary application by Lebbey on affidavit evidence. The grounds of judgment of the trial judge are not before us and it would be premature for us to say that this appeal is without any prospect of success.
In deciding whether to grant a stay, we have to balance the financial repercussions which will be suffered by Lebbey with the imminent destruction of the homes of the applicants if the orders appealed against are enforced.
The subject-matter of this appeal from the applicants’ point of view is their continued right to stay in their homes until their claims have been finally disposed of in a full trial. The destruction of that right cannot be adequately compensated with money. This is a special reason why a stay should be granted. Lebbey’s counsel requested that the court only grant a conditional stay and require the applicants to deposit RM1m if a stay is to be granted. We did not think that such a request was realistic.
We now come to See Teow Guan. In that case the appellants presented a petition to wind-up the first respondent company of which they were shareholders. So were the respondents. The petition contained, inter alia, prayer 4(a) that reads:
(4) for an order pursuant to s. 221 of the Companies Act 1965:
(a)That there be a distribution in specie of shares and investments;
The second, third and fourth respondents took out a motion to strike out prayer 4(a) on the ground that it was plain and obvious that the relief claimed therein could not be granted by the court at the hearing of a winding-up petition. The learned Judicial Commissioner who heard the motion acceded to it and struck out the prayer. Against this, the appellants appealed. The appeal was then pending before the Court of Appeal. In the meantime, the learned Judicial Commissioner proceeded to fix the petition for hearing. The appellants then moved the court for a stay of the proceedings on the petition pending the hearing and disposal of their appeal. The court consisting of Gopal Sri Ram JCA, Siti Norma Yaakob JCA (as he then was) and Mokhtar Sidin J (as he then was) unanimously dismissed the motion with costs.
The court, through the judgment of Gopal Sri Ram JCA, found that:
It is clear from the authorities that the substantive appeal, based upon a single point of interpretation, lacks all merit and is doomed to failure.
On “special circumstances”, the learned judge says:
At one time it was thought that an appellant had to demonstrate that there were special circumstances warranting a stay of proceedings or of execution. This was founded on the notion that a successful litigant ought not to be deprived of the fruits of his litigation. See the case of The Annot Lyle [1886] 11 PD 114. The authority constantly relied upon in support of the proposition that special circumstances ought to be demonstrated before a stay of execution may be granted is the judgment of Brown J in Serangoon Garden Estate Ltd v. Ang Keng [1953] MLJ 116. For my part, having considered the more recent authorities on the subject, I have come to the conclusion that that decision is bad law, and ought no longer to be followed by this court.
The learned judge then quotes from the judgment of Chan Sek Keong JC for the reasons thereof and says:
For my part, I am unable to see any good reason for our courts to cling on to a legal test which has been repudiated, for good reasons, by the courts of the jurisdiction from which that test emanated. In any event, I find that there is respectable authority in our own jurisdiction that points to a more practical and less stringent approach to the problem.
For the purpose of the discussion of this judgment later, it is important to reproduce some other parts of the judgment. This is what the learned judge says:
In my judgment, the paramount consideration governing an application for a stay, whether of execution or of proceedings, or, in the case of an application for some other form of interim preservation of the subject matter of an appeal, such as the grant of an injunction or other appropriate relief under s. 44(1) of the Courts of Judicature Act 1964, is that the appeal to this court, if successful, should not be rendered nugatory. If upon balancing all the relevant factors, this court comes to the conclusion that an appeal would be rendered nugatory without the grant of a stay or other interim preservation order, then, it should normally direct a stay or grant other appropriate interim relief that has the effect of maintaining the status quo.
But cases may arise where, in determining the critical question whether an appeal would be rendered nugatory, this court comes to the conclusion that the point concerned in the pending appeal is obviously unarguable. In such cases it would not, as I perceive the law, be a proper exercise of discretion for this court to shut its eyes to the practical realities of the situation, and to nevertheless proceed to grant a stay.
Take this very case. It is clear from the authorities that the substantive appeal, based upon a single point of interpretation, lacks all merit and is doomed to failure. In this state of affairs, would it be a proper exercise of discretion to permit a stay and cause a delay in the prosecution of the petition? I think not. Apart from the absence of merits, there are other reasons as well.
Encik Thomas informed this court that his instructions are to consent to a winding-up order at the hearing of the petition. Indeed, the second respondent has, in para 4 of the affidavit filed in opposition to the motion, explicitly confirmed this. So, this is not a case where there will be a bitter opposition to the winding-up of the first respondent. To delay the hearing and disposal of such a case as this will, in my judgment, cause a manifest injustice to the parties. It will also put the list of the commercial court in hopeless disorder.
There is the added consideration that this is a winding-up petition which, on authority, ought to be prosecuted to a conclusion with all due speed.
…
I am convinced that it would, in the face of the judicial pronouncements which I have referred to, be a poor exercise of discretion to grant a stay in this case. What good will come of it? None, as far as I can see.
The appellants will not suffer any prejudice. They want the first respondent to be wound-up. The other respondents are agreeable to that course. So they will get their primary relief. They want the assets of the first respondent company to be distributed in specie. That, as I have said, is a matter over which the High Court has no jurisdiction at the hearing of the appellants’ petition. But the appellants have, as I earlier observed, the right to raise this with the liquidator. He may or may not agree with the request. Either way, the party who is dissatisfied with the decision of the liquidator is entitled to raise the matter on a summons taken out before a judge of the High Court. He may affirm, vary or set aside the liquidator’s decision. A further appeal against his decision lies to this court.
As against all this is to be weighed the consequences of granting a stay in this case. There is no doubt that the effect of such an order would be to prolong the disposal of what in essence is a simple matter. There will be a delay of several months while awaiting the hearing of an appeal that is bound to fail. Ultimately, after the passage of many wasted months, the petition will be heard unopposed and the first respondent will be wound-up. When viewed in this way, it is not difficult to see where the justice of the case lies.
Accordingly, in the light of the circumstances presented to this court, I am of the view that the appellants’ application for a stay should not be granted. It was, therefore, dismissed with costs. A consequential order was made directing an early hearing and disposal of the petition.
It is to be noted that the judgment was delivered on 27 November 1995, about six months after the judgments of the Federal Court in Kerajaan Malaysia v. Jasanusa Sdn. Bhd. [1995] 2 CLJ 701 and Dato’ Hj. Ghani Gilong were delivered and after they were reported. No reference was made to these two cases. Only one Malaysian case was cited, that is, Mohamed Mustafa v. Kandasamy (No 2) [1979] 2 MLJ 126, referred to earlier. Two Singapore cases were referred to, first, the Serangoon Garden Estate Ltd. case (which was not followed) and secondly, Dickson Trading (S) Pte. Ltd. v. Transmarco Ltd. [1989] 2 MLJ 408, a decision of the High Court of Singapore by Chan Sek Keong JC (which was followed). It should be mentioned that in Dickson Trading (S) Pte. Ltd., Chan Sek Keong JC not only distinguished Serangoon Garden Estate Ltd. but said that it was wrongly decided. The learned judge in See Teow Guan also appears to rely quite heavily on the case of Alexander v. Cambridge Credit Corp. Ltd. [1985] 10 ACLR 42, a decision of the Court of Appeal of New South Wales, Australia.
The judgment in Sarwari a/p Ainuddin v. Abdul Aziz a/l Ainuddin was delivered on 1 December 1995 but was reported in [1999] 8 CLJ 534. It is a judgment of Shankar J (as he then was) and the learned judge applied the special circumstances test. This is what the learned judge says at p. 538 of the report:
The issue as to whether a stay should be granted has been hotly contested. All the authorities have been reviewed by my brother NH Chan J in Che Wan Development Sdn Bhd v. Co-operative Central Bank Bhd. [1989] 2 CLJ 584; [1989] 1 CLJ (Rep) 366, except the following:
(1)Mohamed Mustafa v. Kandasami (No. 2) [1979] 2 MLJ 126;
(2)Orion Property Trust & Ors v. Du Cane Court Ltd [1962] 3 All ER 466;
(3)Lee Kuan Yew v. Jeyaretnam JB [1991] 1 MLJ 83.
The core factors in this equation which emerge from these cases can be summarised as follows:
(1)The court will not deprive the successful party of the fruits of his litigation until an appeal is determined unless the unsuccessful party can show special circumstances otherwise;
(2)The validity or correctness of the decision appealed from are not special circumstances;
(3)Special circumstances are circumstances which go to the enforcement of the judgment and not those which go to its validity or correctness. Merits or strong grounds of appeal are not special circumstances;
(4)Proof that a successful appeal would be nugatory is a special circumstance.
On 12 March 1996, four months after the Court of Appeal delivered its judgment in See Teow Guan, Abdul Malik Ishak J delivered his judgment in All Persons in Occupation of the House and the Wooden Stores Erected on a Portion of Land Held Under Grant No 26977 for Lot 4271 in the Township of Johor Bahru, Johor v. Punca Klasik Sdn. Bhd. [1998] 5 CLJ 49. In his judgment, the learned judge pointed out:
With respect, See Teow Guan did not consider the Federal Court cases of Kerajaan Malaysia v. Jasanusa Sdn. Bhd. [1995] 2 CLJ 701 (FC) and Kerajaan Malaysia v. Dato’ Hj. Ghani Gilong [1995] 3 CLJ 161 (FC). These two authorities from the highest court in the country, in no uncertain terms, entrenched the special circumstances approach in the context of a stay of execution of a judgment and, I may add, a fortiori it must also be extended to apply to an application for a stay of proceedings in order to preserve the integrity of an appeal.
The learned judge held that he was bound by the Federal Court decisions and adopted the special circumstances approach.
On 10 July 1996, ie, the Court of Appeal delivered its judgment in Gentali (M) Sdn. Bhd. v. Kawasaki Sunrock Sdn. Bhd. [1996] 3 MLJ 597. Ahmad Fairuz JCA (as he then was), sitting with Lamin PCA and Abu Mansor JCA (as he then was) delivered the judgment of the court in Malay, but for convenience, I shall quote the English translation given in the law report which I find to be accurate:
Held, dismissing the appellant’s application:
(1)In an application for a stay of execution, one of the deciding factors that should be considered is whether the appellant’s appeal, if successful, will become nugatory because the order to stay is not given to him nugatory in the sense that the appellant is deprived of the fruits of his success (see p 602F); Mohamed Mustafa v. Kandasami (No 2) [1979] 2 MLJ 126 followed.
The learned judge (as he then was) referred to Mohamed Mustafa but not to See Teow Guan. The judgment is silent about special circumstances. The case appears to have been decided on the “nugatory test” which the learned judge (as he then was) described as “one of the deciding factors”, meaning that there are other factors to be considered. Even then the “nugatory test” was used “in the sense that the appellant is deprived of the fruits of his success” as in Mohamed Mustafa and not in the sense that “the appeal is doomed to failure” as in See Teow Guan.
It is interesting to note that O. 47 r. 1 of the Rules of the High Court 1980 empowers the court to stay an execution by writ of seizure and sale if the court is satisfied “that there are special circumstances which render it inexpedient to enforce the judgment or order”. The relevant case on this provision is Lim Joo Thong v. Koperasi Serbaguna Taiping Barat Bhd. [1998] 1 CLJ 947 (CA).
On 19 February 2000, this court delivered its judgment in Tropiland Sdn. Bhd. v. DCB Bank Bhd. & Anor [2000] 1 CLJ 568. Abu Mansor JCA (as he then was) delivering the judgment of the court, inter alia, said:
We also found that the plaintiff has not shown any special circumstances for a stay to be ordered. We were fortified in our decision by the Federal Court case of Re Kong Thai Sawmill (Miri) Sdn. Bhd; Ling Beng Sung v. Kong Thai Sawmill (Miri) Sdn. Bhd. & Ors (No. 2) [1976] 1 MLJ 131 which refused the application for stay as no special circumstances were shown to support the application for stay.
In Perwira Affin Bank Bhd. v. K.I. Production Sdn. Bhd. [2000] 4 CLJ 482 Kamalanathan Ratnam J, relying on the Federal Court judgment in Jasanusa Sdn. Bhd. applied the “special circumstances” test and also considered the merits of the appeal.
The cases mentioned above are by no means exhaustive. (I also avoid citing my own judgments). However, I think, they are sufficient to show the law on the subject that has been understood and applied by the courts in this country, at all levels, before and after See Teow Guan.
Putting aside See Teow Guan for the time being, what do the cases say?
It appears to me that it is a unanimous view that to grant or not to grant a stay of execution pending appeal is an exercise of discretion by the court. Of course some judges merely use the word “discretion”, some use the words “unqualified discretion” and some use the words “absolute and unfettered discretion”. To me that does not really matter. The point is that, it is an exercise of the discretion by the court on established principles.
The approach taken by most judges appears to be that a successful litigant should not be deprived of the fruits of a judgment obtained in his favour, unless there are special circumstances (or special grounds) that justify a stay of execution to be granted. The weight of authorities appears to me to say that the special circumstances must be special, not ordinary, common or usual circumstances and that go to the execution of the judgment and not to the validity or correctness of the judgment (or merits of the appeal). Many judges considered the question whether the appeal, if successful, is rendered nugatory under the head of special circumstances. (Sometimes, the phrase used is whether the appellant, if successful, can be restored to its former position). The general view appears to be that that is the more, if not the most, important factor of all. Of course, no one ever attempts to define special circumstances, for good reasons. It is also a common view that it depends on the facts of a particular case. Thus, “business realities” has been taken into consideration, I believe under this head. It is a common view that merits of the appeal (or correctness or validity of the judgment) is not special circumstances. Some judges do not use the term “special circumstances”. They straight away consider whether the appeal, if successful, would be rendered nugatory. Examples are Mohamed Mustafa and Gentali (M) Sdn. Bhd. v. Kawasaki Sunrock Sdn. Bhd. [1996] 3 MLJ 597 (CA) and the term was used “in the sense that the appellant is deprived of the fruits of his success.” I think it does not matter whether the nugatory factor is considered under the head “special circumstances” or not, so long as it is considered.
I shall now come to See Teow Guan. The first thing to be noted is that it is an application for a stay of proceedings, not for a stay of execution. The decision appealed against was the decision of the learned Judicial Commissioner striking out a prayer in the winding-up petition. There was no judgment to be executed. There was no order that a party was to do something. There was nothing to be executed, really. However, with respect, the confusion arises because the judgment talks about stay of execution. If we confine that case to applications for stay of proceedings and not for stay of executions that judgment can be left alone and nothing more need be said about it.
However, as the judgment deals with principles of a stay of execution and declares that the long established principle ie, the “special circumstances” test should no longer be followed, the judgment has to be discussed.
First, See Teow Guan declares “special circumstances” as bad law and should no longer be followed. With respect, I do not think that the Court of Appeal can do so, particularly in view of the Federal Court judgments in Re Kong Thai Sawmill (Miri) Sdn. Bhd.; Ling Beng Sung v. Kong Thai Sawmill (Miri) Sdn. Bhd. & Ors (No 2) [1976] 1 MLJ 131 (FC), Jasanusa Sdn. Bhd. and Dato’ Hj. Ghani Gilong. Mohamed Mustafa, though a Federal Court judgment is no authority to say that “special circumstances” is bad law. The judgment makes no mention of “special circumstances” at all. It may well be that it considers that the appeal being rendered nugatory as “special circumstances” without saying it, or it may consider it under a separate heading, as some judges do. The point is that, that factor (appeal being rendered nugatory) was considered. Furthermore, no reference was made to the earlier Federal Court judgment in Re Kong Thai Sawmill (Miri) Sdn. Bhd & Ors., which used the term “special circumstances.” And, sixteen years after Mohamed Mustafa, the Federal Court was still using the term “special circumstances” in Jasanusa Sdn. Bhd. and Dato’ Hj. Ghani Gilong. The Singapore High Court judgment and the New South Wales Court of Appeal judgment are no authority for this court to overrule our own Federal Court judgments.
Furthermore, even this court, subsequent to See Teow Guan was still using the “special circumstances” test see Tropiland Sdn. Bhd. v. DCB Bank Bhd & Anor [2000] 4 CLJ 482. So, with respect, in my judgment, it is not quite right to say that See Teow Guan has “jettisoned” the “special circumstances” test. The weight of authorities is simply too heavy for this court to do so and even this court subsequent to the attempt, continues to treat it as still very much alive.
My reading of See Teow Guan shows that having “jettisoned” special circumstances the learned judge went on to consider other factors like the appeal, if successful, would be rendered nugatory and concluded that, in that case, the appeal “was doomed to failure.”
I agree that in an application for a stay of execution, that the appeal, if successful, would be rendered nugatory is the “paramount consideration” or by whatever name it is called. And, I do not think that it matters whether it is considered under the head of “special circumstances” or not, so long as it is considered and so long as he does not go so far as to say that no other factors may be considered because this is an exercise of discretion, and therefore all the relevant factors should be considered.
My difficulty with See Teow Guan if it were to be applied to an application for a stay of execution is that that the learned judge found that the appeal would be rendered nugatory because it is doomed to failure. As I understand it, the nugatory test that the courts talk about in an application for a stay of execution goes to the subject matter of the case, not the merits of the appeal. In other words, the appeal, if successful, is worthless because the appellant cannot be put in its former position. That “the appeal is doomed to failure” in my view, goes to the merits of the appeal, not to the execution.
I do not think that a court hearing an application for a stay of execution should make a finding that the appeal is doomed to failure or even that there are no merits in the appeal. The reasons are given by Shankar JCA (as he then was in) in Salim bin Ismail & Ors. v. Lebby Sdn Bhd (No 1) [1997] 1 CLJ 98 (CA):
The grounds of judgment of the trial judge are not before us and it would be premature for us to say that this appeal is without any prospect of success.
I would venture to add additional reasons: in the case of the Court of Appeal or the Federal Court, the court that sits to hear the stay application, it is only constituted to hear the stay application, not the appeal. Indeed the appeal may not even be heard by the same panel. Not only the grounds of judgment, usually, are not before the court, but so are the appeal records. The court too does not have the benefits of the arguments on the merits of the appeal. In the circumstances, I am of the view that, as a general rule, it is not only premature but it is also unfair to the parties and wrong for the court, hearing an application for a stay, to make a finding that the “appeal is doomed to failure”, “without any prospect of success”, “has no merits” and the like.
Think of a trial judge trying to apply the principle when he is hearing an application for a stay of execution against his own judgment, which under the rules will have to be made before him first. Is he going to be his own judge and say that there are no merits in the appeal against his own judgment? Even if he honestly thinks so, experience shows (here I am speaking from my ten years experience as a trial judge in the High Court, not to mention my days in the Sessions and Magistrate’s Courts) that there are cases in which the trial judge is very confident of the correctness of his judgment, yet it is reversed on appeal. On the other hand, there are cases in which he is not that confident, in fact has some doubts whether he has given a correct decision, yet, on appeal it is confirmed. That, perhaps, is one of the reasons why a person should not be his own judge.
In the circumstances, I am of the view that See Teow Guan should not be treated as laying down new principles to be applied in an application for a stay of execution. It should be confined to its own facts in an application for a stay of proceedings. The principles that have been applied by the courts of all levels in this country remain the same. Call them by whatever name one prefers. So long as the relevant factors discussed earlier are considered, the correct principles are applied, the exercise of the discretion should not be faulted.
Back to present case. It is to be noted that the affidavit in support says that there are special circumstances, there are merits in the appeal and also that if stay is not granted the appeal will be rendered nugatory. I have said the function of the court is not to look for phrases used (as they are not “passwords”) but to look at the substance, consider the facts and the circumstances of the case in the light of the relevant factors that should be considered in the exercise of the discretion of the court and decide.
First the applicant alleges that the learned judge had unilaterally directed that the case be tried on issues after having fixed a date for a full trial. This is actually an allegation that goes to the correctness or validity of the judgment, or merits in the appeal. Even then, looking on the notes of proceedings it is clear that it is not so. Anyway, he raised no objection.
Further, even the new counsel for the appellant gave an undertaking to the learned judge to file his written submission. Why should he undertake to file his written submission before the trial if there was to be a full trial?
The applicant then talks about merits of the appeal. I prefer the more cautious approach taken by Shankar JCA in Salim bin Ismail & Ors. and NH Chan J (as he then was) in Che Wan Development Sdn. Bhd. v. Co-operative Central Bank Bhd. [1989] 2 CLJ 584; [1989] 1 CLJ (Rep) 366 and not say emphatically that the appeal is “doomed to failure” or otherwise, “has no merits” or otherwise, without the benefit of the grounds of judgment, a full argument on merits and I may not even be on the panel that hears the appeal eventually. I prefer to be neutral, at this stage, on the issue.
Next, the applicant talks about “special circumstances” which, in fact, is an argument that if the stay is not granted, the appeal, if successful will be rendered nugatory, or that the applicant, if successful in the appeal, cannot be restored to its former position.
It must be remembered that the judgment is a money judgment. There is not even an allegation, what more evidence, that the respondent is not in a financial position to repay the applicant if it need be. And bear in mind that the respondent is Danaharta Urus Sdn. Bhd.
The grounds relied on by the appellant are nothing more than “fear of losing”; fear of losing business, fear of losing customers, fear of losing suppliers, fear of losing goodwill, fear of not being able to collect its debts from third parties, in case the appellant company is wound-up. All that the applicant has to do to avoid such “fears” is to settle the judgment debt.
The winding-up petition is still pending. The applicant still has every opportunity to contest it.
Whatever it is, those factors are not “special circumstances” (if we want to use the term) nor do they show that the appeal, if successful, will be rendered nugatory (if we prefer that term). They are nothing unusual. Execution is a natural process after obtaining a judgment and winding-up is one of them.
From the notes of proceedings, we see that both the learned counsel for the respondent as well as the learned judge have been very accommodative with the applicant. Even after a “final” date of hearing, a number of postponements were granted to suit the applicant.
In the circumstances, is this a case in which, this court, in the exercise of its direction should grant a stay? My answer is clearly “No”.
On these grounds, I would dismiss the application with costs.
My learned brothers KC Vohrah JCA and Faiza Thamby Chik J have read this judgment in draft and have expressed their agreements with it.

SIVANES RAJARATNAM v. USHA RANI SUBRAMANIAM
COURT OF APPEAL, KUALA LUMPUR
ABDUL HAMID MOHAMAD, JCA; K C VOHRAH, JCA; ALAUDDIN MOHD SHERIFF, JCA
CIVIL APPEAL NO: W-02-357-1997
13 JUNE 2002
[2002] 3 CLJ 300

FAMILY LAW: Matrimonial Property – Division of Property – Past income no longer available at time of Divorce – Rental shortfall – Occupation Rent – Whether must be ‘accounted’ for and divided – Whether only assets available at time of Divorce to be divided – Law Reform (Marriage and Divorce) Act 1976, s. 76 – Suitability of reliance on English cases

This was an appeal by the respondent/husband against the orders of the High Court in respect of the division of matrimonial property made pursuant to his divorce from the petitioner/wife. In challenging the said orders, the husband contended that the High Court had misconstrued s. 76 of the Law Reform (Marriage and Divorce) Act 1976 (‘the Act’), which section, it was argued, envisages only the division of assets acquired during the marriage and available at the time of the divorce, and not the division of past income which is no longer available for distribution at the time of the divorce.
Held:
Per Abdul Hamid Mohamad JCA
[1] There are no authorities to support the proposition that s. 76 of the Act exhorts an ‘accounting’ of all the past income and assets acquired during a marriage and then awarding the ‘shortfall’ to the former spouse who benefited less from such income or assets. The matrimonial assets to be divided under s. 76 of the Act must necessarily be assets existing at the time of the divorce. (pp 305 i & 306 a)
[2] The nature and extent of each former spouse’s contribution and the question of whether one has enjoyed the property to the exclusion of the other (and the reasons therefor) are only relevant for determining the portion that each former spouse should receive upon the division of the matrimonial assets. They are not for the purpose of calculating a share of the past income to be given to a former spouse. (p 306 b)
[3] In a marriage, both spouses share everything and contribute to the family and home in one way or another and at varying degrees. Where both spouses work and receive income, each inevitably spends his or her own earnings on the family. Similarly, where there is income from an asset acquired during the subsistence of a marriage, eg rent, even though it may be paid into the account of one spouse, it will eventually go towards the family, either partially or entirely. No one keeps an account indeed no one should as a marriage is not a business venture. Thus when a marriage breaks up, it is unreasonable that the court should undertake an ‘accounting’ of the income and expenditure of the parties during the subsistence of the marriage. The function of the court is to make a fair and equitable division of the matrimonial assets that exist at the time of the divorce, taking into consideration the factors laid down in s. 76 of the Act. It must be remembered that the court is dividing matrimonial assets and not assessing damages. (pp 306 d-f & 309 g)
[4] In dividing matrimonial assets pursuant to a divorce, the courts in Malaysia should pay special attention to the provisions of the Act and not rely uncritically on decided cases from other jurisdictions, except perhaps those from Singapore where the relevant law is similar. It is not advisable to rely ingenuously on English cases. (p 306 g)
[Bahasa Malaysia Translation Of Headnotes]
Ini adalah rayuan oleh responden/suami terhadap perintah-perintah Mahkamah Tinggi berhubung dengan pembahagian harta suami isteri yang dibuat selaras dengan perceraian beliau daripada pempetisyen/isteri. Dalam mencabar perintah-perintah tersebut, suami menegaskan bahawa Mahkamah Tinggi telah tersalah-tafsir s. 76 Akta Membaharui Undang-undang (Perkahwinan dan Perceraian) 1976 (‘Akta tersebut’), seksyen yang mana, telah dihujahkan, membayangkan hanya pembahagian aset-aset yang diperolehi ketika perkahwinan dan ada pada waktu perceraian, dan bukan pembahagian pendapatan yang lalu yang mana tidak lagi ada untuk pembahagian pada waktu perceraian.
Diputuskan:
Oleh Abdul Hamid Mohamad HMR
[1] Tidak terdapat otoriti-otoriti untuk menyokong proposisi bahawa s. 76 Akta tersebut mendesak suatu ‘perakaunan’ akan kesemua pendapatan yang lalu serta aset-aset yang telah diperolehi ketika perkahwinan dan kemudiannya mengawardkan “kekurangannya” kepada bekas suami/isteri yang mendapat manfaat yang kurang daripada pendapatan atau aset-aset yang sedemikian. Aset-aset suami isteri yang akan dibahagikan di bawah s. 76 Akta tersebut semestinya merupakan aset-aset yang wujud pada waktu perceraian.
[2] Sifat dan had sumbangan setiap satu bekas suami atau isteri dan persoalan sama ada salah satu dari mereka telah mendapat nikmat dari harta tersebut dengan mengecualikan pihak yang satu lagi (dan alasan baginya) adalah hanya relevan untuk menentukan bahagian yang setiap satu bekas suami atau isteri seharusnya menerima setelah pembahagian aset-aset suami isteri. Ianya bukan untuk tujuan mengira sebahagian dari pendapatan yang lalu untuk diberikan kepada bekas suami atau isteri.
[3] Dalam sesuatu perkahwinan, kedua-dua suami dan isteri berkongsi segalanya dan menyumbangkan kepada keluarga dan rumah dengan satu cara atau pun yang lain dan pada had yang berlainan. Di mana kedua-dua suami dan isteri bekerja dan menerima pendapatan, setiap seorang dari mereka semestinya akan membelanjakan pendapatan mereka sendiri ke atas keluarga. Begitu juga, di mana terdapatnya pendapatan daripada sesuatu aset yang telah diperolehi ketika penerusan perkahwinan, contohnya sewa, meskipun ianya mungkin dibayar ke dalam akaun salah seorang suami atau isteri, ianya akan akhirnya dibelanjakan bagi keluarga sama ada keseluruhannya atau sebahagian daripadanya. Tiada siapa yang menyimpan akaun sesungguhnya tidak seorang pun yang harus melakukannya kerana sesuatu perkahwinan bukannya merupakan suatu usaha perniagaan. Oleh itu apabila sesuatu perkahwinan berakhir, ianya adalah tidak wajar bagi mahkamah menjalankan satu “perakaunan” pendapatan dan perbelanjaan pihak-pihak tersebut ketika penerusan perkahwinan tersebut. Fungsi mahkamah adalah untuk membuat satu pembahagian yang saksama dan adil dari aset-aset perkahwinan yang wujud pada waktu perceraian tersebut, dengan mengambilkira faktor-faktor yang dibentangkan dalam s. 76 Akta tersebut. Adalah harus diingat bahawa mahkamah membahagikan aset-aset suami isteri dan bukannya menaksirkan gantirugi.
[4] Dalam membahagikan aset-aset suami isteri selaras dengan suatu perceraian, mahkamah-mahkamah di Malaysia seharusnya memberikan perhatian khas kepada peruntukan-peruntukan Akta tersebut dan tidak bergantung secara tidak kritikal kepada kes-kes yang telah diputuskan daripada bidangkuasa-bidangkuasa lain, kecuali kes-kes daripada Singapura di mana undang-undang yang relevan adalah sama. Adalah tidak dinasihatkan untuk bergantung secara buta kepada kes-kes Inggeris.
[Rayuan dibenarkan sebahagiannya.]
Reported by Gan Peng Chiang

Case(s) referred to:
Ching Seng Woah v. Lim Shook Lin [1997] 1 CLJ 375 (foll)
Dennis v. Mc Donald [1981] 2 All ER 632 (dist)
Loo Cheng Suan Sabrina v. Khoo Oon Jin Eugene [1995] 1 CLJ 875, [1995] 1 MLJ 115 (refd)

Legislation referred to:
Law Reform (Marriage and Divorce) Act 1976, s. 76
Counsel:
For the appellant – Balwant Singh Sidhu; M/s Balwant Singh Sidhu & Co
For the respondent – Jadadish Chandra; M/s Arbain & Co

JUDGMENT
Abdul Hamid Mohamad JCA:
In this judgment the respondent (husband) in the High Court proceeding will be referred to as “the appellant” and the petitioner (wife) in the High Court will be referred to as “the respondent”. They are both medical doctors. They were married on 1 May 1983. They were separated on 27 October 1990. A decree nisi was issued on 17 September 1993 and was made absolute on 9 May 1994.
This appeal is against the order of the court regarding the division of their matrimonial assets.
At the time of the marriage both parties were employed as medical doctors at the Mentakab District Hospital. After two years of marriage the appellant resigned from government service and joined a group practice in Shah Alam. They set up their matrimonial home in Shah Alam, at a rented house. During that period the respondent (wife) travelled from Mentakab to Shah Alam during weekends. Shortly thereafter she joined the Keretapi Tanah Melayu (KTM). She was given quarters at Kenny Hills. However, they continued to live at the rented house in Shah Alam. The KTM house was occupied by the respondent’s parents for about nine months. In December 1986 the parties used the KTM house as the matrimonial home until their separation in October 1990.
On 21 August 1987 the appellant opened a clinic at No. 43, Jalan Silang, Kuala Lumpur under the name of “Klinik Inter-Med”. However, the respondent remained in the KTM service, in view of the stable income and the benefits of housing and its free maintenance. In early 1990 the appellant purchased a property, the Crescent Court Apartment for RM117,000.
The terms of the order made by the learned Judicial Commissioner (as he then was) on 12 May 1997 are as follows:
(1)That the apartment be valued by a qualified valuer to be agreed by the parties and after deduction of the redemption sum of RM90,000 the respondent is awarded one half of the value in cash.
(2)That the appellant do pay the respondent RM20,100 together with interest at 4% per annum from October 1992 to 12 May 1997, being one half of the rental shortfall.
(3)That the appellant pay the respondent RM43,000 being rental due to the respondent from 1 October 1993 until to date and still continuing until such time as the said property is valued and the respondent given her half share.
(4)That the appellant do pay the respondent RM1,133 from the Maybank Savings Account.
(5)That, within seven days of the date of the order, the appellant nominate the sole daughter of the marriage, Shaleen d/o Sivanes, as sole beneficiary of the two Great Eastern Life Assurance insurance policies.
(6)That the appellant pay the respondent RM200,000 being the respondent’s entitlement to one-third of the income from Klinik Inter-Med.
Before us, learned counsel for the appellant challenged items (1), (2), (3) and (6).
However, before dealing with each of the items challenged, there is one general argument that has to be considered first. Learned counsel for the appellant argued that the approach of the learned Judicial Commissioner (as he then was) was wrong. The learned Judicial Commissioner (as he then was), especially in awarding the rental shortfall (item (2)), occupation rent (item (3)) and one third share of the income of Klinik Inter-Med (item (6)) had contravened the provisions of s. 76 of the Law Reform (Marriage and Divorce) Act 1976. He argued that that section envisaged the division of assets acquired during the marriage and available at the time of the divorce, not the division of past income which was no longer available for distribution at the time of the divorce. He submitted that it was wrong for the court to “do an accounting between the parties” as in the case of, say, two partners in a partnership business in a civil suit. The division of matrimonial assets in a divorce petition is governed by s. 76 of the Act, he submitted.
I find this a very interesting argument. Section 76 of the Act provides:
76. Power for court to order division of matrimonial assets.
(1)The court shall have power, when granting a decree of divorce or judicial separation, to order the division between the parties of any assets acquired by them during the marriage by their joint efforts or the sale of any such assets and the division between the parties of the proceeds of sale.
(2)In exercising the power conferred by subsection (1) the court shall have regard to:
(a)the extent of the contributions made by each party in money, property or work towards the acquiring of the assets;
(b)any debts owing by either party which were contracted for their joint benefit;
(c)the needs of the minor children, if any, of the marriage,
and subject to those considerations, the court shall incline towards equality of division.
(3)The court shall have power, when granting a decree of divorce or judicial separation, to order the division between the parties of any assets acquired during the marriage by the sole effort of one party to the marriage or the sale of any such assets and the division between the parties of the proceeds of sale.
(4)In exercising the power conferred by subsection (3) the court shall have regard to
(a)the extent of the contributions made by the other party who did not acquire the assets to the welfare of the family by looking after the home or caring for the family;
(b)the needs of the minor children, if any, of the marriage;
and subject to those considerations, the court may divide the assets or the proceeds of sale in such proportions as the court thinks reasonable; but in any case the party by whose effort the assets were acquired shall receive a greater proportion.
(5) For the purposes of this section, references to assets acquired during a marriage include assets owned before the marriage by one party which have been substantially improved during the marriage by the other party or by joint efforts.
From the authorities referred to us by both learned counsel and from my research, as far as I can ascertain, I am unable to find any decided case in Malaysia and Singapore to support an accounting of all the assets acquired or improved during the marriage and the income thereof and the determination of who had benefitted more or less and awarding a shortfall to the party who is found to have benefitted less. All the cases simply talk about the “division” of the matrimonial assets, which necessarily means the existing assets at the time of the divorce. Of course the question of the size and nature of each spouse’s contribution and who has enjoyed the property to the exclusion of the other (for example, as in this case, where only one party lived at the Crescent Court Apartment) and the reasons why, are relevant in determining the portion that each spouse should get, but not, in my view, for the purpose of calculating either spouse’s share of past income.
This view, in my opinion, is consistent with the wording and spirit of s. 76. That section talks of “division” of assets acquired during the marriage and provides the factors that should be taken into account when making the division.
Besides (I am speaking generally here) in a marriage, both spouses share everything, both contribute towards the home and family in one way or another, to a bigger or smaller extent. Where both spouses work and earn income, each of them inevitably spends his or her own income for the family. Similarly, where there is income from an asset purchased during the subsistence of the marriage, say rent, even though it may be paid into the account of one spouse, eventually it will go to the family, may be all and may be part of it. No one keeps an account, indeed no one should, as a marriage is not a business venture.
So, if and when the marriage breaks up, it is unreasonable that the court should undertake an accounting of their income and expenditure during the period the marriage subsists. The function of the court is to make a fair and equitable division of the matrimonial assets that exist at the time of the divorce, taking into account the factors provided by s. 76.
Further, in making the division, Malaysian courts should pay special attention to the provision of the Act and not rely uncritically on decided cases from other jurisdictions, except, perhaps, Singapore where the relevant law is similar. To rely uncritically on English cases, in my view, is not advisable. The case of Dennis v. Mc Donald [1981] 2 All ER 632 for example, is a case concerning an unmarried couple with children born out of wedlock. Yet the court in England referred to the relationship as a “matrimonial relationship”. Our own High Court too has referred to it in Loo Cheng Suan Sabrina v. Khoo Oon Jin Eugene [1995] 1 MLJ 115 and also in this case.
I would like to re-emphasise what this court has said through Mahadev Shankar JCA in Ching Seng Woah v. Lim Shook Lin [1997] 1 CLJ 375 at pp. 390-391:
Two points should now be made. The first is that whilst s. 47 refers to English principles we should always keep in the forefront of our minds that when the Act was first initiated we were breaking new ground. It was then necessary to look to English case law because we had adopted much of the wording of the corresponding English statute. In the two decades which have since passed, we have injected enough local experience into the application of the provisions of Pt VI of the Act to become acutely aware that the differences between social and cultural aspirations with regard to marriage, divorce and welfare in England and Malaysia are such that much caution is called for before we adopt modern English attitudes. The measures we should take today to preserve the integrity of the Malaysian family when it is threatened by the calamity of divorce must be determined in the light of the Malaysian conditions. At best therefore the English reports should only be regarded as being of persuasive value or as case studies on why the family as a unit is progressively disintegrating in that country where one-parent households and unmarried mothers now number at least three out of ten.
I am of the view that the courts in this country should not treat such a relationship as in Dennis v. Mc Donald [1981] 2 All ER 632 as a “matrimonial relationship.” There must be a valid marriage under Malaysian law applicable to a couple before there can be any matrimonial relationship. In this country, a person is either married or not married. There is nothing in between. A marriage is either monogamous or polygamous. There is nothing in between. A Muslim marriage is polygamous. A non-Muslim marriage contracted after the coming into force of the Law Reform (Marriage and Divorce) Act 1976 is monogamous. It cannot be both monogamous and polygamous. The line dividing the two is clear.
I shall now deal with the specific issues in this case.
The Crescent Court Apartment
The apartment was purchased in January 1990 in the appellant’s name for RM117,000. At the time of the proceeding in the High Court it was worth about RM210,000. The appellant paid RM24,000. This amount came from their joint account. He also withdrew RM12,700 from his Employees Provident Fund (EPF) for the purpose. As found by the learned trial judge the appellant obtained a loan of RM93,000. A sum of RM25,000 to RM30,00000 was spent on renovations. The apartment was rented out at RM1,600 per month for one year and at RM2,300 up to September 1993. The total amount of rent was RM85,900 which should have been credited to the Citibank account. However, only RM45,700 was credited, leaving a “shortfall” of RM40,200. The apartment was untenanted for three months, that is, from September to November 1993. From December 1993 to April 1997 the appellant was living in the apartment, a period of 41 months. The learned trial judge also found that the final redemption sum (outstanding loan) was RM90,000.
The learned Judicial Commissioner (as he then was) found that the apartment was bought as an investment and it was bringing rental which was being paid towards the loan. The apartment was not a matrimonial home. The respondent never lived in the apartment nor did she leave it voluntarily or otherwise. The learned Judicial Commissioner (as he then was) then went on to say:
The principles of equity referred to in Dennis v. Mc Donald must apply and it is inequitable for the respondent (appellant) to live rent free in the apartment bought solely for investment purposes. It is unacceptable for the respondent (appellant) to suggest that the petitioner ought to have herself stayed in the apartment when she already had a home to stay in and when she knew that the apartment was bought as an investment.
The learned Judicial Commissioner (as he then was) then ordered that the apartment be valued by a qualified valuer to be agreed to by both parties and the sum of RM90,000 (the redemption sum) to be deducted from the said valuation and the respondent be entitled to half the balance in cash.
First, I have no reason to interfere with the finding of facts by the learned Judicial Commissioner (as he then was) as narrated above.
Secondly, in spite of what I have said earlier, on the facts of this case where the parties were lawfully married, I have no objection to the principle in Dennis v. Mc Donald [1981] 2 All ER 632 being applied in this case provided it is understood that, I am in no way recognising a “live in” relationship as a “matrimonial relationship” with rights and obligations provided by law to a married couple, no matter how many children they may have together. In other words, the principle in Dennis v. Mc Donald should not, in this country, be applied to unmarried couples. If a couple chooses not to get married as provided by our law, they should not be talking about a “matrimonial relationship”, “matrimonial home”, “conjugal rights”, “matrimonial proceedings” or “division of matrimonial assets”. Those terms are exclusively for lawfully married couples in accordance with our laws.
Thirdly, I take into account the fact that only the appellant had lived in the apartment (a matrimonial asset, not a matrimonial home) as a factor in considering the portion that the respondent (wife) is entitled to, not for the purpose of doing an account of past rents and ordering a “shortfall” to be made good.
It cannot be denied that the respondent is entitled to a share of the Crescent Court apartment. The question is how much. In determining how much we are governed by the provisions of s. 76 of the Act. That is the primary law. And, like any law, it can only be worded in general terms. It is for the court to determine, guided by the principles laid down in the section and based on the facts of each case, how much is the fair and reasonable portion each party is entitled to. Of course the court should also take into account the decided cases, especially of the more superior courts of this country and, in this case also of Singapore, the relevant written law of which is similar to ours.
In this case, as far as direct financial contribution of the respondent is concerned, her contribution came from the “joint account” of RM24,000 used to pay the down payment. Even if her share is taken to be half, it is only RM12,000 of the total purchase price of RM117,000 which is about 10%. But I agree that that is not the only factor that should be taken into account.
What were her other contributions towards the purchase and improvement of the asset? First, the renovation, the total cost of which is between RM25,000 to RM30,000. Where did the money come from? There is no evidence that she contributed any part of it. Her only “contribution” is that she “did the major supervisions”.
Secondly, the fact that the apartment was rented out. Of the total rental earned RM45,000 was credited to the Citibank account and used for the settlement of the loan. RM40,000 was not credited. The learned Judicial Commissioner (as he then was), at first, at p. 18 of his grounds of judgment, said:
To my mind this shortfall should be disregarded because although the rentals were to be paid towards the loan and yet not paid, however in any case, the respondent had been settling the loan. In the circumstances I made no award with regard to this claim for rentals by the petitioner.
However, on the following day the learned Judicial Commissioner (as he then was) vacated the order. His subsequent order appears at p. 19 of his grounds of judgment. In this new order he made a separate award in respect thereof. He divided the “shortfall” of RM40,200 into two and granted the respondent half the amount, which is RM20,100 as a separate award. His reasons are first, the respondent “ought to have credited the “shortfall” but did not “and secondly, because “credit for the redemption sum has already been given.”
I agree that the “shortfall” should be taken into account, but for the purpose of determining the portion of the contribution, not as in a claim for damages in civil suits. The court is dividing a “matrimonial asset” not assessing damages.
It should also be noted that even though that “shortfall” was not credited to the account and used for the payment of the loan installments, clearly the installments were being paid, otherwise the bank would have instituted proceedings in respect of it. Payment for assessment, quit rent and may be repairs will have to be made. The family too, in some way, may have benefitted from the “shortfall”. Of course we do not know much. But the court is not required to do an accounting.
Next comes the “occupation rent”. The appellant alone lived in the apartment from 1 October 1993 until 1 June 1997, a period of 44 months. The learned Judicial Commissioner (as he then was) ordered that half the “rental” per month be paid to the respondent. The final figure found by the learned Judicial Commissioner (as he then was) is RM43,100 and the order continues until such time as the property is valued and the petitioner given her half share.
The question is whether it should be taken into account in determining the portion to be awarded to the respondent or to be awarded as a separate item as the learned Judicial Commissioner (as he then was) had done.
I must admit that I have some difficulty in answering this question. On the one hand, I must bear in mind that the function of the court is to divide the matrimonial assets, not to do an accounting of the income of the spouses during the marriage. A person who buys property should be able to enjoy it and not to be treated as a simple tenant in his own house. It is true that the appellant did not have to move into the apartment if he did not want to but clearly, he moved out of the matrimonial home because the marriage was already breaking down. And, if he had not moved into the apartment, it could have been rented out. But the respondent too was not prevented from moving into the apartment had she wanted to. If she did not, most probably, it was for the same reason why the appellant moved out of the matrimonial home: the marriage was breaking down.
On the other hand, there is the period after the marriage was dissolved until the apartment is valued and the respondent’s entitlement is fully paid to her, during which period the appellant alone stays at the apartment to the exclusion of the respondent.
It does not seem fair to me that that period should not be accounted for and the respondent should not be compensated for.
In the circumstances, without breaching the function of the court of dividing the matrimonial assets, a fair thing to do is to take into account the period prior to the dissolution of the marriage during which period the appellant stayed at the apartment as a factor in determining the portion that the respondent is entitled to. But, for the period after the dissolution of the marriage until the respondent’s share is paid in full, a portion of the rental otherwise would be earned should be paid as a separate item to the respondent.
In the circumstances, in my view, taking all the factors into account, including the direct financial contribution by the respondent towards the purchase of the house (which was about 10%), the fact that the appellant must have utilised part of the rental shortfall exclusively for his own benefit, and the fact that he alone had lived at the apartment prior to the dissolution of the marriage, a reasonable division would be that the respondent is entitled to half the current value of the apartment. As the current value of the apartment is definitely more than the purchase price, both parties stand to gain from their investment.
In other words, I would confirm the order of the learned Judicial Commissioner (as he then was) that the apartment be valued by a qualified valuer to be agreed by both parties and after deducting a sum of RM90,000 (the redemption sum), the balance is to be divided equally and half of it be paid in cash to the respondent. However, in coming to our conclusion, I would differ from the learned Judicial Commissioner (as he then was) in that I take into account two factors (“rental shortfall” and “occupation rent”) on which the learned Judicial Commissioner (as he then was) made separate awards.
Rental Shortfall
I do not think that it is necessary to repeat my discussion of this issue. For the reasons that I have given I do not think it is correct that it should be given as a separate award.
Occupation Rental Prior And Subsequent To The Dissolution Of The Marriage
Similarly, for the reasons that I have given above, I do not think that there should be a separate award for occupation rental prior to the dissolution of marriage. However, half the occupation rental from the date of the dissolution of the marriage until the respondent’s half share of the value of the apartment is paid in full to her, must be paid to the respondent.
Klinik Inter-Med
The facts of the case were dealt with by the learned Judicial Commissioner (as he then was) under two headings, first under the heading “the facts” and subsequently under the heading “court’s findings”. The facts, as found by the learned Judicial Commissioner (as he then was) under “court’s findings” are quite brief compared to the facts narrated under the heading “The Facts”. They lack the details enumerated under the heading “the facts”. I do not know what the findings of the learned Judicial Commissioner (as he then was) regarding them were. However, I must add that the facts as found by the learned Judicial Commissioner (as he then was) and narrated under the heading “court’s findings” are quite sufficient to show the extent of the respondent’s contribution towards the establishment and the running of the clinic. I accept his findings of facts which is now reproduced for easy reference:
The clinic was opened during the subsistence of the marriage. The petitioner had testified that she had contributed towards the opening of the clinic. She had arranged for the banking facilities and even stood as a guarantor. When they were in need, even the family car, the Mazda, was sold to tide over the difficult period. The respondent admitted that about RM10,000 of their savings had been utilised in the opening of the clinic. Furthermore there was clear evidence that during the initial years the respondent stopped contributing towards the household expenses. The respondent had no rental payments to worry about as the house provided to the petitioner by KTM resolved that issue. All the while the petitioner was working and continued working even when the clinic was doing well. In other words the petitioner contributed financially and physically in the setting up of the clinic, thereby enabling the respondent to devote his energy to the running of the clinic.
But, what the learned Judicial Commissioner (as he then was) did was to do an accounting of the net income supposedly earned by the clinic and awarded one-third of it to the respondent, at a rounded figure of RM200,000.
Here again I am faced with the question of the approach that the court should take: to do an accounting of past income or divide the existing asset. I prefer the second approach, in view of the provisions of s. 76 of the Act. I see the difficulty that the learned Judicial Commissioner (as he then was) was facing in trying to determine the income supposedly earned by the clinic. The income declared to the Department of Inland Revenue, and relied on by the appellant is one thing. The income the respondent claimed that the appellant had earned is another. The income, the expenses and the net income the appellant is supposed to have earned per year is actually no more than an arbitrary figure. Then there is the question of income tax that has not been paid on the net income found by the court which is more than the income declared to the Department of Inland Revenue. The respondent says that as the appellant had not paid that tax (again an arbitrary figure), she is entitled to it. On the other hand, the appellant says that since that is the tax that he should pay, he is entitled to it. The point is, if that amount, as found by a court is tax, then neither of them is entitled to it. It is the Government of Malaysia that is entitled to it.
Furthermore, I do not think that it can be denied that income earned from the clinic since its opening had somehow been spent and enjoyed by the family, even though no one knows and I do not think it can be expected to be proved by either party, how much or in what proportion.
In the circumstances, I am of the view that the correct approach is to divide the asset, not to apportion past income which is no more than an arbitrary figure arrived at based, as in this case, on mere assertions of interested parties.
So, the clinic, including all its equiptments and goodwill should be valued by a qualified valuer to be agreed by both parties and one-third of the value be paid in cash to the respondent. As it will take time to finalise and for payment to be made, a fair solution is to order the respondent to pay interest at 4% (taking into account the current rate of interest on fixed deposits) on the amount of the one-third share the respondent is entitled to. The interest should run from the date of the judgment of the High Court until the full amount is paid.
In the circumstances, I would allow the appeal and make the following orders:
(a)The Crescent Court Apartment The order of the learned Judicial Commissioner (as he then was) is confirmed in that the apartment be valued by a qualified valuer to be agreed by both parties and after deducting the redemption sum of RM90,000, the balance is to be divided equally and half of it is to be paid in cash to the respondent.
(b)Rental shortfall no separate award.
(c)Occupation rental prior and subsequent to the dissolution of marriage no separate award for occupation rental prior to the dissolution of marriage. However, half the occupation rental from the date of the dissolution of marriage until the respondent’s half share of the value of the apartment is paid in full to the respondent, is to be paid to the respondent.
(d)Klinik Inter-Med the clinic, including all the equipments and goodwill to be valued by a qualified valuer to be agreed by both parties and one-third of the value be paid in cash to the respondent. Interest of 4% on the amount of the one-third share of the respondent to be paid to the respondent from the date of the judgment of the High Court until the full amount is paid.
(e)Liberty to apply for consequential orders for the carrying of these orders which may be made to the same High Court, even though not before the same judge.
(f)Each party to pay his/her own costs. Deposit to be refunded.
My learned brothers KC Vohrah and Alauddin Mohd. Sheriff JJCA have read this judgment in draft and have expressed their agreement with it

SPEECH TO MEMBERS OF THE DISCIPLINARY BOARD, DISCIPLINARY COMMITTEE, INVESTIGATING TRIBUNAL AND THE STATE BAR COMMITTEES

11th June 2002
(Kuala Trengganu)

By

Dato’ Abdul Hamid bin Haji Mohamad
(Chairman, Advocates and Solicitors’ Disciplinary Board)

On behalf of the Disciplinary Board, I thank you all for attending this meeting. We are very encouraged  by the response we get here. This is the biggest gathering we have so far.

This is the third meeting of this kind we have had had so far, the first being in Penang on 12^th. January 2002 and the second in Johor Bharu on 9^th. March 2002.

We decided to have these meetings because we think that there is a need to meet the members of the Disciplinary Board, the Investigating Tribunal as well as members of the State Bar Committees. Through these meetings we hope to enlighten you of the number of complaints received,  the number disposed of, the backlog, the need to speed up the disposal of complaints, the problems we are facing and to find ways to overcome them, to hear your grouses and suggestions and to seek your co-operation to effectively and fairly  deal with the complaints. That is why we are here. And that is why we invite you to be here.

The Board was established in 1992 and I was appointed Chairman in February 2001 for a period of two years.

Through the hard work of  our officers and staff and through the computerisation of the office, we now know quite accurately the volume of work that we have.

To give you some idea about it, according to the statistics compiled by the officers and staff of the Board, we find that the number of complaints registered from 1992 until the end of February this year is 5195. In year 2001 alone 655 complaints were registered, i.e. nearly two complaints a day, be it a public holiday or not. During the same period, 2563 complaints were disposed off i.e. about 50%. We still have 2622 complaints pending, i.e. 50%. In year 2001 we managed to dispose off 656 complaints, an increase of 323% compared to the previous year’s disposal of 203 cases. Indeed as the statistics show, year 2001 was the first year in the history of the Board that more cases were disposed of than registered, that too only by one case.

Whilst we should be quite happy with our achievement in year 2001, we should not allow ourselves to be misled by the statistics and to have a false sense of satisfaction and confidence. The reason is this. A large number of the cases disposed of were cases that the Board found to have no merits, after initial study by the Board, to refer to the Investigating Tribunal. In legal terms, we can say that they were dismissed summarily, somewhat like what the Courts do under Order 18 rule 19 of the Rules of the High Court, 1980.

The complaints that are pending or going for investigation (or “trial”, in legal terms) still form the bulk of those pending. These are the ones that will take time to hear. These are the ones that will involve the members of the Investigating Tribunal.

To give you an idea of the volume pending before the Investigating Tribunal and the Disciplinary Committee, at the end of February 2002, about 200 cases have been referred to and are pending before the Investigating Tribunal. About 200 more have been decided by the Board to be referred to the Investigating Tribunal. So you can expect some of them to reach you soon. 60 cases have been referred to the Disciplinary Committee. More will definitely go to the Investigating Tribunal as the Board  completes the initial study of the complaints and subsequently to the Disciplinary Committee and finally to the Board. It is interesting, indeed worrying, to note that, according to our record, in year 2001 only 11 cases were completed by the Disciplinary Committee and 43 investigations were completed by the Investigating Tribunal. (Sometimes I wonder why I accepted this job, but I only have one more year to go. That is a small consolation).

I know that some lawyers are already complaining that they have been given too many cases to investigate. But, I am sorry, we have no choice.

But, to reduce the burden, we are doing two things. First, we are increasing the number of Investigating Tribunal and Disciplinary Committee members. Secondly, we are distributing the case more fairly amongst the members. With the help of the computer, we are in a position to know how many have been given to whom. I urge all of  to give to give top priority to hear those complaints and complete them as soon as possible.

We have also identified that quite a large number of complaints concern delay in obtaining the Sijil Annual. These are straight foward cases. We have decide to put them on a fast track by appointing “special” Investigating Tribunal and fixing a number of such cases per day, first for “mention” (to borrow the Court’s terminology) and subsequently, “for hearing” (again borrowing the Court’s terminology) of cases in which the respondents dispute the complaints. That way we hope to clear the bulk of those Sijil Annual cases.

We have now also identified what we call “serial offenders”, i.e. lawyers with more than five complaints against them. We decide to take the most serious of the complaints and deal with it first, so that if he is struck off the role, we will save the time for the hearing of the other cases.

We realise that the present procedure of is very cumbersome, protracted and costly.  It delays the disposal of the cases. It takes too much of too many people’s time.  Quite often, along the way, even the complainant loses interest and does not turn up at the haring.

Indeed, under the present procedure, a complaint, if it goes through the full course, goes through six tiers i.e. the Investigating Tribunal, the Disciplinary Committee, the Disciplinary Board, the High Court, the Court of Appeal and the Federal Court compared to only three tiers that a  murder case goes through i.e. the High Court, the Court of Appeal and the Federal Court. If you count the number of people involved in the investigation and adjudication,  you will be surprised that as many as 32 people are involved compared to only seven in a murder case. There is something clearly very wrong here.

So, we are in the process of putting up a proposal to amend the Legal Profession Act, at least, to do away with the Investigating Tribunal.

You must have noticed that the Director no longer travels around, sitting as Secretary to every, or almost every, hearing of the Investigating Tribunal and Disciplinary  Committee. We made this decision because we found that it delayed proceedings (as only one hearing can go on at any one time if he were to attend all of them), costly and left very little time for the Director to attend to the work at the office.

Some members of the Investigating tribunal and the Disciplinary Committee are not happy with the decision because they want the luxury of  having someone to record the notes of evidence for them, a luxury which Judges never enjoy. Personally, I do see no problem of you taking down the notes of evidence yourselves, something which I think should not and cannot be delegated to someone else. The hearing is not a meeting of a Board of Directors of a company. It is a “judicial proceeding”. Whatever the law, in most cases, they do not run into very many pages compared to what Judges have to take down. The Board will pay for the typing which may be done by your secretaries or typists.

We have also standardised the claim form and the rates payable for sitting allowance for non-lawyer members and travelling allowances and expenses for all member of the Investigating Tribunal and Disciplinary Committee.

I call on all of you to make some sacrifices for the sake of your profession. This is your profession. It is in the interest of your profession, besides the interest of the nation, that the members of the legal profession are disciplined. It is the wish of the members of the legal profession that the power to discipline their errant members remain with  them. It is, therefore, your duty to make some sacrifices to ensure that the Board, the Committee and the Tribunal function efficiently, speedily and fairly.

Thank you.

COURT OF APPEAL, KUALA LUMPUR
ABDUL HAMID MOHAMAD, JCA; MOHD SAARI YUSOFF, JCA; K C VOHRAH, JCA
CIVIL APPEAL NO: S-04-75-2001
[2002] 3 CLJ 422
CIVIL PROCEDURE: Appeal – Appeal from decision of Election Judge to Court of Appeal – Whether Court of Appeal has jurisdiction to hear appeal – Whether s. 36 Election Offences Act 1954 excludes jurisdiction thereof – Whether decision of an Election Judge is a decision of a High Court appealable within art. 121(1B)(a) Federal Constitution – Whether art. 121(1B)(a) is subject to federal laws – Courts of Judicature Act 1964, ss. 50, 67, 68 – Federal Constitution, arts. 4(1), 118, 128(3)

CONSTITUTIONAL LAW: Courts – Appeals – Decision of Election Judge – Whether appealable – Whether Court of Appeal has jurisdiction to hear appeal within art. 121(1B)(a) Federal Constitution – Whether s. 36 Election Offences Act 1954 excludes jurisdiction thereof – Whether art. 121(1B)(a) is subject to federal laws – Whether absence of a provision similar to art. 128(3) of Constitution in respect of Court of Appeal renders all appeals from High Court to Court of Appeal appealable – Whether decision of Election Judge is a decision of a High Court appealable within art. 121(1B)(a)

STATUTORY INTERPRETATION: Constitution – Interpretation of – Article 121(1B)(a) – Jurisdiction of Court of Appeal to hear appeal from decision of Election Judge – Whether within art. 121(1B)(a) of Constitution – Whether jurisdiction to hear appeal barred by s. 36 Election Offences Act 1954 – Whether conflict between art. 121(1B)(a) and s. 36 – Whether absence of a provision similar to art. 128(3) of Constitution in respect of Court of Appeal renders all appeals from High Court to Court of Appeal appealable – Whether s. 36 rendered null and void by art. 4(1) of Constitution

The appellant won the general election State Assembly for the Likas constituency in Sabah. The election, however, was declared null and void by the Election Judge based on two election petitions presented by the respondents. The appellant appealed to this court and the parties were directed to address on the preliminary issue, ie, whether the decision of the Election Judge was appealable.
The matters that arose for determination were: (1) whether the decision of the Election Judge was a decision of the High Court and therefore appealable within art. 121(1B)(a) of the Federal Constitution (‘the Constitution’); (2) whether the Court of Appeal’s jurisdiction to hear appeals was not abrogated, limited or restricted as it did not have a provision similar to art. 128(3) of the same which provided the Federal Court’s jurisdiction to hear appeals subject to federal law; and (3) whether s. 36 of the Election Offences Act 1954 (‘Act 1954’) which purported to exclude the jurisdiction of the Court of Appeal to hear an appeal from a final order of an Election Judge was inconsistent with art. 121(1B)(a) of the Constitution thereby rendering it null and void by art. 4(1) of the same.
Held:
Per Abdul Hamid Mohamad (Mohd Saari Yusoff concurring) JJCA
[1] It is settled law that the decision of an Election Judge is not a decision of a tribunal inferior to the High Court for the purpose of judicial review. But that does not make a decision of an Election Judge a decision of the High Court in the ordinary sense. It must be noted that the only reference made to the High Court in art. 118 of the Constitution is with regard to the place where an election petition is to be presented. A place for presentation has to be named as there is no establishment as an Election Court. That is provided as a matter of convenience. (pp 437 g-h & 438 a-b)
[2] The fact that the petition is filed in a High Court does not empower a judge of the High Court to try the petition as in other cases filed therein. He has to be nominated by the Chief Judge for that purpose. In practice, only a few judges of the High Court are nominated after every general election to try the petitions and, quite often, the resident High Court judge is not the one nominated for such purpose. (p 438 c)
[3] Section 2 of Act 1954 makes a clear distinction between an Election Judge and a High Court judge. Apart from that, the term “Election Judge” is used throughout Act 1954 but when the Act refers to a High Court judge, the words used are “any judge of the High Court”. A clear example is sub-s. 4 of s. 33 of Act 1954. It followed, therefore, that a decision of an Election Judge is not a decision of a High Court or a judge thereof. On this ground alone, the appeal could be dismissed. (pp 438 d-i )
[4] There is not one judgment in this country that states that the decision of an Election Judge is appealable to a higher court. On the other hand, ever since elections were held, the appellate courts were of the view that such decisions were not appealable. Even the decision of an Election Judge in an interlocutory matter has been held not to be appealable. (p 439 a-b)
[5] The question whether the absence of a provision similar to art. 128(3) of the Constitution in respect of the Court of Appeal meant that all decisions of the High Court were appealable to the Court of Appeal depended on whether ss. 50, 67 and 68 of the Courts of Judicature Act 1964 (‘CJA’) were valid. That in turn depended on whether art. 121(1B) of the Constitution should be read restrictively or whether it should be read together with those sections. (p 444 e-f)
[5a] The amendments to ss. 50, 67 and 68 CJA by Act A886 came into force on the same day the Court of Appeal was created by Act A885. So clearly, these provisions of the CJA and art. 121(1B) of the Constitution were intended to be read together. The intention of Parliament could not be any clearer than that. (pp 444 g-h & 445 a)
[6] The CJA which is a federal law regulates the requirement to obtain leave to the Court of Appeal and not the Constitution. That does not mean that when leave is refused, a constitutional right in the exercise of a federal law has been refused which proves to show that the provision of the Constitution should be read together with the provisions of the CJA. To hold otherwise, leads to a conclusion that ss. 50, 67 and 68 CJA are void and unconstitutional, and that all decisions of the High Court are appealable to the Court of Appeal. Article 121(1B) of the Constitution, even in the absence of a similar provision to art. 128(3) of the same, being a general provision, cannot be read in such a restrictive way. (pp 445 h-i & 446 a)
[Bahasa Malaysia Translation Of Headnotes]
Perayu telah menang dalam pilihanraya Dewan Undangan Negeri bagi kawasan pilihanraya Likas di Sabah. Pilihanraya tersebut, walaubagaimanapun, telah diisytiharkan batal dan tak sah oleh Hakim Pilihanraya berdasarkan dua petisyen pilihanraya yang dikemukakan oleh responden-responden. Perayu telah merayu kepada mahkamah ini dan pihak-pihak tersebut telah diarahkan supaya memperkatakan mengenai isu awal, iaitu sama ada keputusan Hakim Pilihanraya tersebut boleh dirayui.
Perkara-perkara yang berbangkit untuk penentuan adalah: (1) sama ada keputusan Hakim Pilihanraya adalah keputusan Mahkamah Tinggi dan oleh itu boleh dirayu di dalam lingkungan per. 121(1B)(a) Perlembagaan Persekutuan (‘Perlembagaan tersebut’); (2) sama ada bidangkuasa Mahkamah Rayuan untuk mendengar rayuan-rayuan tidak dibatalkan, dihadkan atau disekat kerana ianya tidak mempunyai peruntukan yang sama dengan per. 128(3) Perlembagaan tersebut yang memperuntukkan bidangkuasa Mahkamah Persekutuan untuk mendengar rayuan-rayuan tertakluk kepada undang-undang persekutuan; dan (3) sama ada s. 36 Akta Kesalahan-Kesalahan Pilihanraya 1954 (‘Akta 1954’) yang bertujuan untuk mengecualikan bidangkuasa Mahkamah Rayuan untuk mendengar sesuatu rayuan daripada perintah muktamad seorang Hakim Pilihanraya adalah tidak konsisten dengan per. 121(1B)(a) Perlembagaan tersebut seterusnya menjadikannya batal dan tak sah oleh per. 4(1) Perlembagaan tersebut.
Diputuskan:
Oleh Abdul Hamid Mohamad (Mohd Saari Yusoff bersetuju) HHMR
[1] Ianya adalah merupakan undang-undang yang tetap bahawa keputusan seorang Hakim Pilihanraya bukannya keputusan sebuah tribunal yang lebih rendah dari Mahkamah Tinggi bagi tujuan kajian semula kehakiman. Tetapi itu tidak menjadikan keputusan seorang Hakim Pilihanraya keputusan Mahkamah Tinggi menurut perkara yang biasa. Adalah harus diperhatikan bahawa hanya rujukan yang dibuat kepada Mahkamah Tinggi di dalam per. 118 Perlembagaan tersebut adalah berhubung dengan tempat di mana sesuatu petisyen pilihanraya harus dikemukakan. Sesuatu tempat untuk mengemukakan petisyen haruslah dinamakan kerana tidak terdapat tempat yang dikenali sebagai Mahkamah Pilihanraya. Ianya diperuntukkan semata-mata untuk kemudahan.
[2] Hakikat bahawa petisyen tersebut telah difailkan dalam Mahkamah Tinggi tidak memberikan kuasa kepada seseorang hakim Mahkamah Tinggi tersebut untuk membicara petisyen tersebut sepertimana dalam kes-kes lain yang difailkan di dalamnya. Beliau haruslah dipilih oleh Ketua Hakim bagi tujuan itu. Mengikut amalan, hanya sebilangan kecil hakim Mahkamah Tinggi telah dipilih selepas setiap satu pilihanraya umum untuk membicarakan petisyen-petisyen dan selalunya, residen hakim Mahkamah Tinggi bukannya yang terpilih untuk tujuan tersebut.
[3] Seksyen 2 Akta 1954 membuat perbezaan yang jelas antara Hakim Pilihanraya dan hakim Mahkamah Tinggi. Selain daripada itu, ungkapan “Election Judge” diguna pada keseluruhan Akta 1954 tetapi apabila Akta tersebut merujuk kepada hakim Mahkamah Tinggi, perkataan-perkataan yang digunakan adalah “any judge of the High Court”. Contoh yang jelas adalah sub-s. 4 dari s. 33 Akta 1954 tersebut. Diikuti, oleh itu, bahawa keputusan Hakim Pilihanraya bukannya keputusan Mahkamah Tinggi atau hakimnya. Atas alasan ini sahaja, rayuan tersebut boleh ditolak.
[4] Tidak terdapat satu penghakiman pun di dalam negara ini yang menyatakan bahawa keputusan Hakim Pilihanraya boleh dirayui di mahkamah yang lebih tinggi. Sebaliknya, sejak pilihanraya diadakan, mahkamah-mahkamah rayuan berpendapat bahawa keputusan yang sedemikian tidak boleh dirayu. Keputusan seorang Hakim Pilihanraya sekalipun dalam perkara interlokutori telah diputuskan sebagai tidak boleh dirayui.
[5] Persoalan sama ada ketiadaan peruntukan yang sama dengan per. 128(3) Perlembagaan tersebut berhubung Mahkamah Rayuan bermakna bahawa kesemua keputusan Mahkamah Tinggi boleh dirayu kepada Mahkamah Rayuan bergantung pada sama ada ss. 50, 67 dan 68 Akta Mahkamah-Mahkamah Kehakiman 1964 (‘AMK’) adalah sah. Itu sebaliknya bergantung pada per. 121(1B) Perlembagaan tersebut seharusnya dibaca secara terhad atau sama ada ianya harus dibaca bersama-sama dengan seksyen-seksyen itu.
[5a] Pindaan-pindaan kepada ss. 50, 67 dan 68 AMK oleh Akta A886 mula berkuatkuasa pada hari yang sama Mahkamah Rayuan diwujudkan oleh Akta A885. Oleh itu sungguh jelas, peruntukan-peruntukan AMK dan per. 121(1B) Perlembagaan tersebut bertujuan untuk dibaca bersama-sama. Niat Parlimen tidak lebih jelas daripada itu.
[6] AMK yang mana adalah undang-undang persekutuan menyelaraskan syarat-syarat untuk mendapatkan kebenaran merayu ke Mahkamah Rayuan dan bukannya Perlembagaan tersebut. Itu tidak bermakna bahawa apabila kebenaran ditolak, suatu hak berperlembagaan dalam melaksanakan undang-undang persekutuan telah ditolak. Ini membuktikan bahawa peruntukan Perlembagaan tersebut haruslah dibaca bersama dengan peruntukan-peruntukan AMK. Untuk memutuskan sebaliknya, membawa kepada kesimpulan bahawa ss. 50, 67 dan 68 AMK adalah batal dan tidak berperlembagaan, dan bahawa kesemua keputusan Mahkamah Tinggi boleh dirayu kepada Mahkamah Rayuan. Perkara 121(1B) Perlembagaan tersebut, meskipun tiada peruntukan yang sama seperti per. 128(3) Perlembagaan tersebut, yang merupakan peruntukan umum, tidak boleh dibaca dengan cara terhad sedemikian.
[Rayuan ditolak oleh satu majoriti.]
For the appellant – Gavan Griffith QC (Alex Decena, PK Lim & John Sikayun, Lawrence Chong); M/s Luping & Co
For the respondents – Ansari Abdullah (Rezuan Borhan); M/s Ansari & Co
Reported by Usha Thiagarajah

Case(s) referred to:
AJ Arzu v. AE Arthurs & Anor [1965] 1 WLR 675 (refd)
Dewan Undangan Negeri Kelantan & Anor v. Nordin Salleh & Anor [1992] 2 CLJ 1125; [1992] 1 CLJ (Rep) 72 (refd)
Dason Gaban v. Zulkifli Majun & Other Cases [1982] 1 MLJ 31 (refd)
Dato’ Menteri Othman Baginda & Anor v. Dato’ Ombi Syed Ahir Syed Darus [1981] 1 MLJ 29 (refd)
Devan Nair v. Yong Kuan Teik [1967] 1 LNS 37, [1967] 1 MLJ 261 (refd)
DYTM Tengku Idris Shah Ibni Sultan Salahuddin Abdul Aziz Shah v. Dikim Holdings Sdn Bhd & Anor [2000] 2 CLJ 57 (refd)
Ignatius Stephen Malanjun v. Election Judge Sabah & Anor (Civil Appeal No: 03-42-89) (unreported) (refd)
Lam Kong Co Ltd v. Thong Guan Co Ptd Ltd [2000] 3 CLJ 769 (refd)
Megat Najmuddin Dato’ Seri (Dr) Megat Khas v. Bank Bumiputra Malaysia Bhd [2002] 1 CLJ 645 (refd)
Merdeka University Bhd v. Government of Malaysia [1981] CLJ 175; [1981] CLJ (Rep) 191 (refd)
Raymond v. Honey [1983] 1 AC 1 (refd)
Re Perting Timor Election (No 2) [1962] 1 LNS 162, [1962] 28 MLJ 333 (refd)
Selvanathan Savarimuthu v. Suruhanjaya Pilihanraya Malaysia (Civil Application No: W-08-417-1998) (unreported) (refd)
Sennayake v. Navaratne [1954] AC 640 (refd)
Tengku Razaleigh Tengku Mohd Hamzah v. Election Judge for Election Petition No. 33-6-1995 & Ors [1996] 1 CLJ 366 (refd)
Tunku Abdullah v. Ali Amberan ,[1970] 1 LNS 162,[1971] 1 MLJ 25 (refd)
Wee Choo Keong v. Lee Chong Meng & Anor [1996] 3 CLJ 508 (refd)
Wee Choo Keong v. Lee Chong Meng & Anor [1998] 1 CLJ 705 (refd)

Legislation referred to:
Courts of Judicature Act 1964, ss. 20, 24, 50, 67(1), 68(1)(a) , (b), (c), (d), (2), (3)
Courts Ordinance 1948 , s. 37(c), (d)
Election Offences Act 1954, ss. 2, 11(c) , (d), 32, 33(4), 34(1), 35, 36, 42(2)
Federal Constitution, arts. 4(1), 118, 121(1) , (1B)(a), (b), (2)(a), (b), (c), 128(1) , (3), 130, 160(1)
Interpretation Acts 1948 & 1967, s. 17A
Rules of the High Court 1980, O. 9
JUDGMENT
Abdul Hamid Mohamad JCA:
This appeal arises from two election petitions, ie, Election Petition No. 5 of 1999 and Election Petition No. 11 of 1999. Both petitions concern the general election for the State Assembly for the constituency of Likas, known as “N13”. The present appellant was the second respondent in Election Petition No. K5 of 1999 and third respondent in Election Petition No. K11 of 1999. The present respondent was the petitioner in both petitions. They were both candidates in the said election which was won by the appellant.
In the court below, both the petitions were consolidated.
Election Petition No. 5 of 1999 concerns the erection of four billboards alleged to have contained false statements about the respondent and alleged to have been made and/or put by the appellant. The election judge found that the appellant had committed an offence under s. 11(c) and (d) and s. 32 of the Election Offences Act 1954.
Election Petition No. 11 of 1999 was based on three main grounds:
(1)that the Election Rolls 1998 which was used in the said election was illegal as (it was alleged) it contained names of non-citizens and persons who had been convicted for possession of fake identity cards;
(2)that there were corrupt practices on the part of the appellant;
(3)that there was conspiracy between the Federal Government and Barisan Nasional (the party to which the appellant represented in the said election).
The learned judge found in favour of the respondent on the first ground and held that the 1990 Electoral Roll for the said constituency “was illegal”.
Regarding the second ground, the learned judge found that the respondent “had failed to prove beyond reasonable doubt the offence of bribery or corrupt practices.”
Regarding the third ground, the learned judge found that there was no evidence of the alleged conspiracy.
In conclusion the learned judge declared that the 1998 Electoral Roll for Likas Constituency (N13) was illegal and that the said election was null and void.
The appellant appealed to this court.
When this appeal came before us, we directed the learned counsel for both parties to address us on one point first, and that is whether a decision of an election judge in an election petition is appealable to this court. After hearing the arguments of the learned counsel for both sides, we reserved our judgment as a constitutional issue of great importance and wide implications has been raised. This judgment is in respect of that issue only.
The argument of the learned Queen’s Counsel for the appellant may be summarised thus:
Article 121(1B)(a) vests the jurisdiction in the Court of Appeal to determine appeals from decisions of a High Court or a judge thereof, regardless of whatever the position was as to the jurisdiction of the Federal Court (or Supreme Court) prior to the creation of the Court of Appeal. By virtue of Article 121(1B)(b), this “primary jurisdiction” may be enlarged by federal law but not abrogated, limited or restricted. Any law that attempts to do so is void for inconsistency under art. 4(1) of the Constitution. Jurisdiction under ss. 32, 33 and 36 of the Election Offences Act 1954 is vested exclusively in the High Court by art. 118 of the Constitution and those same sections. To the extent that s. 36 of the Election Offences Act 1954 purports to exclude the jurisdiction of the Court of Appeal to hear an appeal from a final order of an election judge, it is void and of no effect by operation of art. 4(1) it being inconsistent with art. 121(1B)(a) of the Constitution. The decisions of the courts prior to 24 June 1994, the date of the creation of the Court of Appeal, are not in point as they do not concern art. 121(1B).
For easy reference the relevant provisions of the Constitution are reproduced:
Article 4(1)
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.
Article 118
118 No election to the House of Representatives or to the Legislative Assembly of a State shall be called into question except by an election petition presented to the High Court having jurisdiction where the election was held.
Both these provisions were not touched by the Constitution (Amendment) Act 1994 (Act A 885) that inter alia created the Court of Appeal with effect from 24 June 1994.
Article 121(1B):
(1B) There shall be a court, which shall be known as the Mahkamah Rayuan (Court of Appeal) and shall have its principal registry in Kuala Lumpur, and the Court of Appeal shall have the following jurisdiction, that is to say:
(a)jurisdiction to determine appeals from decisions of a High Court or a judge thereof (except decisions of a High Court given by a registrar or other officer of the Court and appealable under federal law to a judge of the Court); and
(b)such other jurisdiction as may be conferred by or under federal law.
This clause was inserted by Act A885 and came into force on 24 June 1994. Prior to that date appeals from the High Court went straight to the Supreme Court, which was renamed “Federal Court” by the same amendment Act.
Article 121(2):
(2) There shall be a court which shall be known as the Mahkamah Persekutuan (Federal Court) and shall have its principal registry in Kuala Lumpur, and the Federal Court shall have the following jurisdiction, that is to say:
(a)jurisdiction to determine appeals from decisions of the Court of Appeal, of the High Court or a judge thereof;
(b)such original or consultative jurisdiction as is specified in articles 128 and 130; and
(c)such other jurisdiction as may be conferred by or under federal law.
Prior to 24 June 1994 (when amendment A885 came into force) cl. (2)(a) read as follows:
(2) There shall be a court which shall be known as the Mahkamah Agung (Supreme Court) and shall have its principal registry in Kuala Lumpur, and the Federal Court shall have the following jurisdiction, that is to say:
(a)exclusive jurisdiction to determine appeals from decisions of a High Court or a judge thereof (except decisions of a High Court given by a registrar or other officer of the court and appealable under federal law to a judge of the Court.)
The relevant provisions of the Election Offences Act 1954 are ss. 32, 33 and 36. Section 32 empowers the election judge to declare the election of a candidate at an election void on any of the grounds provided thereto.
Section 33(1) provides:
33(1) Every election petition shall be tried by the Chief Judge or by a Judge of any High Court nominated by the Chief Judge for the purpose:
Provided that the Chief Judge shall not nominate a Judge of a High Court of which he is not Chief Judge without consulting the Chief Judge of that High Court.
This section was amended by the Courts of Judicature (Amendment) Act 1994 (Act A886) that came into force as Act A885. The only amendment made was that the word “justice” wherever found was substituted with the word “judge”. These are consequential amendments resulting from Act A885.
It should also be noted that, in respect of interlocutory matters in connection with an election petition subsection (4) provides:
(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 whose decision shall be final.
Section 36, in brief, requires the election judge, at the conclusion of the trial to determine, inter alia, whether the election was void and rectify such determination. Upon such certificate being given such determination shall be final.
Before going any further, something should be said about the principles of the interpretation of constitutions.
The Supreme Court, the highest court in this country before it was renamed the “Federal Court”, in a five-judge panel, has reiterated the principles in Dewan Undangan Negeri Kelantan & Anor v. Nordin bin Salleh & Anor [1992] 2 CLJ 1125; ([1992] 1 CLJ (Rep) 72). Abdul Hamid Omar LP has this to say at p. 1130 (pp. 78-79) of the report:
Secondly, as the Judicial Committee of the Privy Council held in Minister of Home Affairs v. Fisher at p. 329, a constitution should be construed with less rigidity and more generosity than other statutes and as sui juris, calling for principles of interpretation of its own, suitable to its character but not forgetting that respect must be paid to the language which has been used.
In this context, it is also worth recalling what Barwick CJ said when speaking for the High Court of Australia, in Attorney General of the Commonwealth, ex relatione McKinley v. Commonwealth of Australia at p. 17:
the only true guide and the only course which can produce stability in constitutional law is to read the language of the constitution itself, no doubt generously and not pedantically, but as a whole and to find its meaning by legal reasoning.
In our approach to this appeal we have accordingly kept in the forefront of our minds the principles aforesaid.
Raja Azlan Shah, Ag LP (as he then was), in Dato’ Menteri Othman bin Baginda & Anor v. Dato’ Ombi Syed Ahir bin Syed Darus [1981] 1 MLJ 29 (FC) said, at p. 32 of the report:
In interpreting a constitution two points must be borne in mind. First, judicial precedent plays a lesser part than is normal in matters of ordinary statutory interpretation. Secondly, a constitution, being a living piece of legislation, its provisions must be construed broadly and not in a pedantic way “with less rigidity and more generosity than other acts” (see Minister of Home affairs v. Fisher ). A constitution is sui generis, calling for its own principles of interpretation, suitable to its character, but without necessarily accepting the ordinary rules and presumptions of statutory interpretation. As stated in the judgment of Lord Wilberforce in that case: “A constitution is a legal instrument given rise, amongst other things, to individual rights capable of enforcement in a court of law. Respect must be paid to the language which has been used and to the traditions and usages which have given meaning to that language. It is quite consistent with this, and with the recognition that rules of interpretation may apply, to take as a point of departure for the process of interpretation a recognition of the character and origin of the instrument, and to be guided by the principle of giving full recognition and effect to those fundamental rights and freedoms.” The principle of interpreting constitutions “with less rigidity and more generosity” was again applied by the Privy Council in Attorney-General of St. Christopher, Nevis and Anguilla v. Reynolds.
See also Merdeka University Bhd. v. Government of Malaysia [1981] CLJ 175; [1981] CLJ (Rep) 191.
Of late, the present Federal Court has adopted the “purposive approach” of interpreting the Constitution relying, in particular, on the provision of s. 17A of the Interpretation Acts 1948 and 1967 (Act 388). The judgment of Mohamed Dzaiddin FCJ (as he then was) in Lam Kong Co. Ltd. v. Thong Guan Co. Ptd. Ltd [2000] 3 CLJ 769 (FC) is one such example. This judgment was followed in DYTM Tengku Idris Shah Ibni Sultan Salahuddin Abdul Aziz Shah v. Dikim Holdings Sdn. Bhd. & Anor [2002] 2 CLJ 57 (FC). Haidar Mohd. Noor FCJ delivering the judgment of the Federal Court, said at p. 69 of the report:
This purposive approach has now been given statutory recognition by our Parliament enacting s. 17A in the Interpretation Acts 1948 and 1967 (Act 388) which reads:
In the interpretation of a provision of an Act, a construction that would promote the purpose of object underlying the Act (whether that purpose or object is expressly stated in the Act or not) shall be preferred to a construction that would not promote that purpose or object.
Recently, the Federal Court in a majority judgment in Lam Kong Co. Ltd. v. Thong Guan Co. Ptd Ltd [2000] 3 CLJ 769 Mohamed Dzaiddin, FCJ, (now CJ Malaysia) took the purpose or object of the legislature as provided by s. 17A of the Interpretation Acts 1948 and 1967 (Act 388) for the construction of s. 68(1)(a) of CJA on the “filter’ principle. In view of the statutory recognition we can and should adopt a purposive approach in the interpretation of “Ruler” for the purposes of arts. 181, 182 and 183.”
It should be noted that in Lam Kong Co. Ltd the Federal Court adopted the purposive approach in considering s. 68(a) of the Courts of Judicature Act 1964, one of the sections presently under consideration. I shall adopt the same approach.
Is the decision of the Chief Judge or a judge of a High Court sitting as an “election judge” a decision of a High Court?
In this respect the learned Queen’s Counsel relied on art. 118 of the Constitution and the cases of Wee Choo Keong v. Lee Chong Meng & Anor [1998] 1 CLJ 705, Tengku Razaleigh bin Tengku Mohd. Hamzah v. Election Judge for Election Petition No. 33-6-1995 & Ors. [1996] 1 CLJ 366 and Dason Gaban v. Zulkifle bin Majun & 21 Other Cases [1982] 1 MLJ 31.
Wee Choo Keong [1998] is a judgment of the Federal Court. The applicant was elected as a member of Parliament, but in the election petition filed subsequently, he was disqualified and unseated by the election judge. The applicant applied to the High Court for leave to apply for an order of certiorari to quash the decision of the election judge. He was unsuccessful in the High Court and also in the Court of Appeal. He appealed to the Federal Court. The issue was whether an election judge was amenable to an order of certiorari. The Federal Court held that the court in which the election judge sits to hear an election petition is not an inferior court or any statutory authority or tribunal which is amenable to an order of certiorari. Prerogative order cannot be issued by the High Court against an “election court” which is not an inferior court.
In arriving at that conclusion the Federal Court, through the judgment of Peh Swee Chin FCJ relied on the provision of s. 33 of the Election Offences Act 1954 and the fact that “election petitions have not been known to have been filed anywhere else except in the High Court and the title of the election petition in question reads “Dalam Mahkamah Tinggi di Kuala Lumpur.””
The learned judge also relied on art. 118 of the Federal Constitution, and inter alia, said:
High Court is the designated court for an election judge to sit in.
The learned judge then referred to s. 24 of the Courts of Judicature Act 1964 and said:
… Article 118 of the Federal Constitution in our view, seems to provide the High Court with this additional specific jurisdiction not mentioned in the said Act.
We are of the view that the election court is, in fact, the High Court.
The judgment of the High Court in Tengku Razaleigh is to the same effect.
As far as this court is concerned, it is settled law that for the purpose of judicial review the “election court” is not a tribunal inferior to the High Court, the orders of which are susceptible to judicial review. That is a very sensible view to take, because, when the Chief Judge himself sits as an “election judge”, it is unimaginable that his decision will be subject to judicial review by a High Court judge. Similarly, when a High Court judge is nominated by the Chief Judge to try an election petition, he sits as a judge not as a chairman or member of a tribunal. Therefore it is perfectly correct to treat the decision of an election judge not as a decision of a tribunal inferior to the High Court for the purpose of judicial review.
But that does not make a decision of an election judge a decision of the High Court in the ordinary sense. It must be noted that the only reference made to the High Court in art. 118 is with regard to the place where an election petition is to be presented. Surely, a place for the presentation of an election petition has to be named as there is no such establishment as an election court and as it is either the Chief Judge or a judge of a High Court who may be nominated to try the petition. That is provided as a matter of convenience.
Furthermore, the fact that the petition is filed in a High Court does not empower a judge of that High Court to try the petition as in other cases filed therein. He has to be nominated by the Chief Judge for that purpose. In practice, only a few judges of the High Court are nominated after every general election to try the petitions and, quite often, the resident High Court judge is not the one nominated for such purpose.
Further, it must be noted that the Election Offences Act 1954 makes a clear distinction between an election judge and a High Court judge. Section 2 provides an interpretation of an “election judge”:
“election judge” means the Chief Judge or any judge nominated by the Chief Judge under section 33;
The term “election judge” is used throughout the Act see, for example, ss. 28, 29, 32, 33, 36, and 37.
On the other hand, when the Act refers to a High Court judge, the words used are “any judge of the High Court”. A clear example is sub-s. (4) of s. 33 of the Act:
(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 whose decision shall be final. (emphasis added).
The distinction was pointed out by Suffian LP in Dason Gaban v. Zulkifli bin Majun and 21 Other Cases [1982] 1 MLJ 31 (FC) when he said:
Here however while it is true that Seah J was a Judge of the High Court, he made the order appealed from not in exercise of the ordinary jurisdiction of a High Court Judge but of the special jurisdiction of an Election Judge, having been specially so nominated by the Chief Justice under section 33 of the Election Offences Act.
There is therefore clearly a distinction between a High Court judge and an election judge.
On these grounds, in my judgment, a decision of an election judge is not a decision of a High Court or a judge thereof. On this ground alone the appeal could be dismissed.
Assuming that I am wrong, I shall now consider the other arguments. First, I shall look at the decided cases, so far. I have not been able to find even one judgment of any court in this country that says that a decision of an election judge is appealable to a higher court. On the other hand, I find that ever since elections were held in this country, all the appellate courts, be it the former Court of Appeal, the former Federal Court, the Privy Council, the Supreme Court and the present Court of Appeal are all of the same view that such decisions are not appealable.
I shall take the cases in chronological order.
Re Perting Timor Election (No. 2) [1962] 28 MLJ 333 is a judgment of the former Court of Appeal. In that case an election judge made an interim order in Election Petition No. 6 of 1961. The election, it is to be noted, is an election to the Town Council of Bentong in Pahang. The respondent filed a notice of appeal against the said order. The matter for consideration by the court was the motion by the petitioner that the notice of appeal should be struck out on the ground that no appeal should be brought by virtue of s. 37(c) and (d) of the Courts Ordinance 1948.
Hill Ag. CJ sitting with Good JA and Suffian J (as he then was), delivering the judgment of the court, said at p. 333:
The matter only presents difficulty because the order against which the appeal is lodged is an interim or interlocutory order made by the Election Judge in preliminary stages of the hearing of the Election Petition. The learned Judge had not determined the issues set out in section 36 of the Election Offences Ordinance 1954 (No. 9 of 1954) and had not certified his determination. If he had, such determination would be final according to this section and no appeal would lie for section 36 states inter alia “upon such certificate being given, such determination shall be final.”
At p. 334 of the report, the learned Acting Chief Justice said:
What then is the position with regard to appeals from interim or interlocutory orders made by an Election Judge? The right of appeal is not an inherent right, but one that must be expressly granted or conferred. Neither in the Constitution nor in the Courts Ordinance, nor in the Election Offences Ordinance is this right conferred and in any view there is therefore no such right of appeal.
It should be noted that the judgment was delivered on 18 July 1962. At that time the words “whose decision shall be final” were not yet part of sub-s. (4) of the said s. 33. Those words were only added by the Election Offences (Amendment) Act 1986 (Act A640) that came into force on 2 May 1986. Yet, even without those words the former Court of Appeal held that even a decision in an interlocutory matter by “any judge of the High Court” was not appealable to the then Court of Appeal.
Devan Nair v. Yong Kuan Teik [1967] 1 MLJ 261 is a decision of the Privy Council. For the present purpose, it is sufficient to say that the board held at p. 263 that:
There was no appeal to Their Lordship’s Board for it has been settled by a long time of decision of their Lordships starting with Theberge v. Laudrey ([1876] 2 App. Cas 102, PC) in 1876 and ending with Arzu v. Arthurs ([1965] 1 WLR 675 PC)… in 1961 that their Lordships will not entertain appeals from the determination of an election judge.
And, again:
Looking at sections 33 and 36 (of the Election Offences Ordinance 1954), while it is clear that section 36 enacts that final orders are not subject to appeal, there were no such limiting words in section 33(4).
The issue whether a decision in an interlocutory matter is appealable arose again in Dason Gaban v. Zulkifli bin Majun & Ors [1982] 1 MLJ 315 (FC). Suffian LP distinguished the facts in Devan Nair ‘s case in considering the observation of the Privy Council and invited Parliament to “consider the ambiguity in the law disclosed in these appeals, decide as a matter of policy whether or not interlocutory orders made in an election petition should be appealable and legislate accordingly.”
Clearly, it was that invitation that led the Parliament to amend sub-s. (4) of s. 33 by adding the words “whose decision shall be final” in 1986.
Be that as it may, we are concerned with a final order of an election judge.
Tunku Abdullah v. Ali Amberan [1971] 1 MLJ 25 is again a judgment of the Federal Court, consisting of Azmi LP, Suffian and Gill FJJ (as they then were). In that case the appellant sought to appeal from the decision of the election judge against the finding that he was guilty of corrupt practice and against the award of costs against him. The Federal Court held that the final order of an election judge was unappealable and therefore the Federal Court had no jurisdiction to entertain the appeal. Devan Nair v. Yong Kuan Teik [1967] 1 MLJ 261, A.J. Arzu v. A.E. Arthurs & Anor [1965] 1 WLR 675, Sennayake v. Navaratne [1954] AC 640 and Re Perting Timor Election (No 2) [1962] 28 MLJ 333 were followed.
It is interesting to note that a similar argument was put forward in that case, and I quote from the judgment of Suffian FJ (as he then was):
It is submitted that Article 118 overrides all the provisions in the Election Offences Act relating to Election Judges. Dato’ Nahappan does not say that the learned judge had no jurisdiction to determine this election petition. All he says is that in view of Article 118 the learned judge must be deemed to have been sitting as an ordinary judge of the High Court, and from his judgment an appeal lies under s. 67 of the Courts of Judicature Act. Dato’ Nahappan points out that Article 118 was not brought to the notice of the Federation Court of Appeal in Re Perting Timor Election [1962] 28 MLJ 333, 334 or to the notice of the Privy Council in the Devan Nair case [1967] 1 MLJ 261 where it was held that there is no appeal from the decision of an Election Judge;
The learned judge (as he then was) went on to say:
I am of the opinion that this court has no jurisdiction to entertain this appeal.
And again:
In my judgment there is no inconsistency between our Election Offences Act and Article 118 of the Constitution, for Article 118 does not guarantee the citizen the right of appealing against the decision of a High Court Judge, and it is therefore open to Parliament to provide (by law) which decisions of a High Court may be appealed against and which not. By s. 36 of the Election Offences Act, Parliament has clearly provided that the determination of a judge hearing an election petition shall be final. When Parliament enacted s. 67 of the Courts of Judicature Act it knew of the court’s reluctance to accept jurisdiction in a case concerning the election of a member of the legislature and that court will not entertain an appeal such as the one under consideration. If Parliament had intended to change this law, surely it would have written s. 67 of the Courts of Judicature Act in such a way as to make it clear beyond doubt that the Federal Court has jurisdiction to hear appeals from the judgment of the High Court not only in any civil matter but also in election petitions. It did not do so and I am convinced that the reason for that is that Parliament did not intend to change the law to render the decisions of an Election Judge appealable.
It should be pointed out that the provision of art. 118 of the Federal Constitution is the same now as it was on 14 August 1970 when that case was decided by the then Federal Court. The then s. 67 was the same as the present s. 67(1) except that s. 67 was renumbered as s. 67(1) by the Courts of Judicature (Amendment) Act 1972 (Act A126) with effect from 1 November 1972, that the words “Court of Appeal” was substituted for the words “Federal Court” by Act A886 with effect from 24 June 1994 and the word “cause or” was added by Act A909 also with effect from the same date, which is not material for our purpose now.
Dasan Gaban v. Zulkifli bin Majun and 21 Other cases [1982] 1 MLJ 315 is again a judgment of the Federal Court. In that case, a number of election petitions were presented in the High Court at Kota Kinabalu Sabah. The applicants argued in 20 of the petitions that the petitions should be struck out on the grounds of failure to comply with the provisions of the Election Petition Rules 1954 and s. 34 of the Election Offences Act 1954. The learned judge rejected all the applications and refused to strike out any of the petitions. The applicants appealed to the Federal Court. The court dismissed the appeal on a preliminary objection on the ground that the court had no jurisdiction to hear the appeal.
Suffian LP, sitting with Lee Hun Hoe (CJ Borneo) and Hashim Yeop A. Sani J (as he then was), delivering the judgment of the court, said:
We dismissed these appeals because there is no inherent right of appeal to us, such a right if any must be granted by statute, and if there is any right of appeal at all it must be under s. 67(1) of the Courts of Judicature Act. That section provides:
(1) The Federal Court shall have jurisdiction to hear and determine appeals from any judgment or order of any High Court in any civil matter, whether made in the exercise of its original or of its appellate jurisdiction, subject nevertheless to the provisions of this or any other written law regulating the terms and conditions upon which such appeals shall be brought.
Wee Choo Keong v. Lee Chong Meng & Anor [1996] 3 CLJ 508 is a judgment of this court. It is this judgment that went up to the present Federal Court which confirmed it and which has been referred to earlier. It concerns an application for an order of certiorari. However, Abdul Malek Ahmad JCA (as he then was) in his judgment at p. 56 said:
The law is well-settled that there shall be no appeal from the decision of an election judge. Section 36 of the Election Offences Act 1954 states that the election judge shall determine at the conclusion of the trial of an election petition whether the candidate whose return or election is complained of or any other and what person, was duly returned or elected, or whether the election was void, and shall certify such determination to the election commission or to the state authority, as the case may be, and upon such certificate being given such determination shall be final.
This legislative provision had been given judicial sanction as long ago as in 1962 by the Court of Appeal in Re Perting Timor Election (No. 2) [1962] MLJ 333 and in 1970 when the Federal Court decided in Tunku Abdullah v. Ali Amberan [1971] 1 MLJ 25 that the final order of an election judge is unappealable and therefore, the Federal Court had no jurisdiction to entertain the appeal. The same situation arose again in 1982 when the Federal Court held in Dasan Gaban v. Zulkifle bin Majun & Ors [1982] 1 MLJ 315 that there is no inherent right of appeal to the Federal Court from the decision of an election judge.
It is not necessary for me to discuss the unreported judgment of the Supreme Court in Ignatius Stephen Malanjun v. Election Judge Sabah & Anor (Supreme Court Civil Appeal No. 03-42-89), reproduced in the judgment of Abdul Malek Ahmad JCA (as he then was) in Wee Choo Keong v. Lee Chong Meng [1996] 3 CLJ 508. It is to the same effect that there is no appeal from a decision of an election judge.
Similarly this court in Selvanathan a/l Savarimuthu v. Suruhanjaya Pilihanraya Malaysia (Permohonan Sivil No. W-08-417-1998) dismissed an application for leave to appeal against an order of costs made by an election judge as there is no appeal from that decision.
It is thus clear that all the appellate courts in this country, be it the former Court of Appeal, the former Federal Court, the Privy Council, the Supreme Court and the present Court of Appeal, have unanimously over the years held that the decision of an election judge is not subject to appeal.
However, before us it is argued that this court should not look at decisions before 24 June 1994 as they are not relevant, because, at that time, this court has not been established yet. The cut-off date is 24 June 1994, the date of the establishment of the present Court of Appeal. It is true that of all the cases mentioned above Wee Choo Keong v. Lee Chong Meng & Anor [1996] 3 CLJ 508 appears to be the only judgment of this court delivered after that date besides Selvanathan a/l Savarimuthu v. Suruhanjaya Pilihanraya Malaysia (Permohonan Sivil No. W-08-417-1998) which was also decided on the ground that there was no right of appeal.
I shall now consider the wording of art. 121(1B).
Article 121(1B) was inserted by Act A885. The same amendment Act amended the then existing art. 121(2) by changing the name of the “Mahkamah Agong (Supreme Court)” to “Mahkamah Persekutuan (Federal Court)” and secondly, by substituting a new para. (a) for the old para. (a). This is due to the creation of the Court of Appeal. A provision must be made to enable the Federal Court to hear appeals from the newly created Court of Appeal. Other than that the old provision of cl. (2) remains unchanged. For the present purpose the following words which have remained unchanged are important:
(2) There shall be a court which shall be known as the Mahkamah Persekutuan (Federal Court)… and the Federal Court shall have the following jurisdiction, that is to say:
(a)jurisdiction to determine appeals from decisions of…
Compare that with the wording of art. (1B) that creates the Court of Appeal:
(1B) There shall be a court which shall be known as the Mahkamah Rayuan (Court of Appeal)… and the Court of Appeal shall have the following jurisdiction, that is to say:
(a) jurisdiction to determine appeals from decisions of…
Note that the wording of the two clauses are exactly the same except for the name of the respective courts.
It is argued that there is no provision concerning the Court of Appeal similar to that of art. 128 concerning the Federal Court, in particular cl. (3):
(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.
That provision was inserted by Act 26/1963, s. 14, and came into force on 16 September 1963 (on the formation of Malaysia) replacing the earlier art. 128. It is argued that since there is no such provision regarding the Court of Appeal, federal laws cannot impose restrictions on the right of appeal to the Court of Appeal. In other words, all decisions of the High Court are appealable to the Court of Appeal.
The question is whether because of the absence of a provision similar to art. 128(3) in respect of the Court of Appeal means that all decisions of the High Court are appealable to the Court of Appeal. That depends on whether the provisions of arts. 50, 67 and 68 of the Courts of Judicature Act 1964 are valid and that depends on whether the provision of art. 121(1B) should be read restrictively or whether it should be read together with those sections.
Sections 50 and 67 provide for the jurisdiction of the Court of Appeal in criminal and civil matters respectively. Section 68 goes further to provide matters which otherwise would be appealable under s. 67 are not appealable. Both ss. 50 and 67 were substituted for the old ss. 50 and 67 by Act A886 and came into force on the same day as Act A885 that, inter alia, created the Court of Appeal, ie, 24 June 1994. Section 68 was also amended by Act A886. Subsection (1)(a) was amended by substituting for the words “one hundred” the words “two hundred fifty” and by deleting the words “or a judge of the High Court”. Subsection (2) was deleted. Subsection (3) was amended by deleting the words “or a judge of the High Court.” All these amendments came into force on the same day as Act A885, ie, 24 June 1994.
So, clearly, these provisions of the Court of Judicature Act 1964 and art. 121(1B) of the Constitution are intended to be read together. The intention of Parliament cannot be clearer than that.
The words of Suffian FJ (as he then was) in Tunku Abdullah ‘s case, reproduced earlier are also relevant.
Furthermore, the observation made by Steve Shim CJ (Sabah & Sarawak) in Megat Najmuddin Dato’ Seri (Dr) Megat Khas v. Bank Bumiputra Malaysia Bhd. [2002] 1 CLJ 645 (FC) supports this view. Even though the learned Chief Judge was interpreting art. 121(2), as has been pointed out, the wording of cl. (2) and cl. (1B), in so far as they are material for the present discussion, is identical. The learned Chief Judge, at p. 660 of the report says:
In my view, art. 121(2) Federal Constitution is a general provision relating to the jurisdiction of the Federal Court. It is an empowering provision which states that the Federal Court shall have jurisdiction to determine appeals from decisions of the Court of Appeal and the High Court. It is pertinent to note the conspicuous absence of the word “all” or “any” preceding the word “decisions” in the provision. If it was the intention of Parliament to confer jurisdiction on the Federal Court to hear appeals from all decisions of the Court of Appeal, the word “all” or “any” would have been included therein. The exclusion of those words, in my view, was clearly deliberate. It was intended that not all decisions are appealable.”
Of course, having said that the learned Chief Judge went on to consider the provision of art. 128(3), which has no equivalent in respect of the Court of Appeal. However, I am only relying on his view regarding the provision of art. 121(2) which is, in substance, in pari materia with art. 121(1B).
In this connection, it is argued that vesting of the jurisdiction by the Constitution in the Court of Appeal to hear appeals from the High Court cannot be detracted, limited or restricted by a federal law, even though federal law may regulate it. Examples of such “regulations” are the requirement to file notice of appeal and the requirement to obtain leave in certain cases.
I have no problem with the first example. But, there is clearly a problem in respect of the requirement to obtain leave. Leave may be granted or refused. When leave is refused, following this argument, does it not mean that a constitutional right has been refused in the exercise of a federal law? It is the federal law, ie, the Court of Judicature Act 1964 that provides for such requirements, not the Constitution. This, to my mind, shows that the provision of the Constitution should be read together with the provisions of the Courts of Judicature Act 1964. To hold otherwise would lead to a conclusion that even ss. 50, 67 and 68 of the Courts of Judicature Act 1964 are void and unconstitutional. It means that all decisions of the High Court are appeallable to the Court of Appeal. With respect, I do not think that art. 121(1B), even in the absence of a provision similar to art. 128(3), being a general provision, can be read in such a restrictive way.
On these grounds, in my judgment, the decision of an election judge in question is not appealable to this court. The appeal is therefore dismissed with costs.
My learned brother Mohd. Saari Yusoff has read this judgment in draft and has expressed his agreement with it.

COURT OF APPEAL, KUALA LUMPUR
ABDUL HAMID MOHAMAD, JCA; MOHD SAARI YUSOFF, JCA; MOHD NOOR AHMAD, JCA
CIVIL APPEAL NO: W-02-24-2002
[2002] 3 CLJ 83
CIVIL PROCEDURE: Injunction – Ex parte injunction – Order of – Life span – Computation of 21 days – Whether includes the day order is made – Whether life span can be extended beyond 21 days – Rules of the High Court 1980, O. 3 r. 2(2), O. 29 r. 1(2B) – Interpretation Acts 1948 & 1967, s. 54(1)(a)

CIVIL PROCEDURE: Injunction – Ex parte injunction – Order of – Whether order automatically lapses after life span of 21 days – Whether application for injunction still subsists upon lapse of order – Whether court has jurisdiction to grant ad interim injunction pending inter partes hearing of application

CIVIL PROCEDURE: Injunction – Ex parte injunction – Damages – Entitlement of – Upon lapse of order

The issue before the court was whether the learned judge was right in setting aside an ex parte injunction order on the basis that it fell outside the 21-day period pursuant to O. 29 r. 1(2B) Rules of the High Court 1980 (‘RHC’). The learned judge had included the day the ex parte injunction order was made in computing the 21 days.
Held:
Per Abdul Hamid Mohamad JCA
[1] The day the injunction order was made should be excluded in computing the 21 days (Sam Peng Thong & Ors v. Tetap Meriah Sdn Bhd). Order 29 r. 1(2B) RHC states “at the end of 21 days from the date on which it is granted”. Both O. 3 r. 2(2) RHC and s. 54(1)(a) of the Interpretation Acts 1948 and 1967 require that the day the order is made to be excluded in reckoning the 21 days. Therefore, the ex parte injunction granted on 6 December 2001 expired on 27 December 2001. (p 90 d-f)
[2] The case of Cheah Cheng Lan v. Heng Yea Lee which decided that an ex parte injunction cannot be extended beyond the 21 days, was correctly decided. The ex parte order automatically lapses after 21 days. However, it is the ex parte order that lapses and not the application. The application upon service is converted to an inter partes application. The application now inter partes still subsists. (p 90 g)
[3] Even though the ex parte injunction order expired on 27 December 2001, the application was still in existence. In fact, it was still in existence on the day this appeal was heard. That being the case, the problem faced by the learned judge who for good reasons, could not hear the application inter partes on 26 December 2001 did not arise. (p 91 d-e)
[4] The learned judge clearly had the jurisdiction to consider whether to grant an ad interim injunction pending the inter partes hearing of the application. In Jakob Renner v. Scott King, an ad interim injunction was granted pending the hearing of an application for an interim injunction which was to be heard inter partes. (p 92 b-e)
[5] The ad interim injunction is not an extension of the ex parte order which expires after 21 days. It is a fresh order made on the converted inter partes application now before the court. When the court finally hears the application inter partes, the court will then decide whether to grant an injunction, inter partes. That will be a fresh order again. (p 92 f)
[6] If the defendant wants to set aside the ex parte order, the defendant is at liberty to file an application for that purpose. It is at the hearing of that application that the court should decide whether to set it aside, if it has not lapsed. If in the meantime, the ex parte order has lapsed, the court should nevertheless hear the application, not for the purpose of determining whether to set it aside because it has lapsed, but for the purpose of determining whether it should have been made in the first place. This is necessary in order to determine whether damages should be awarded. (pp 92 h-i & 93 a)
[7] It was wrong for the learned judge to set aside the ex parte order. The fact that the ex parte order automatically expired after 21 days did not mean that it was wrongly granted in the first place. Also, the fact that the application could not be heard inter partes within 21 days did not mean that it was wrongly given. Further, there was no application before the court to set aside the ex parte order. (p 93 b-d)
[8] The learned judge should not have made an order that the appellant make good its undertaking as to damages. The fact that an ex parte order automatically lapses after 21 days does not mean that the defendant is automatically entitled to damages. The question should have been whether the ex parte should have been made at all? Only if it should not have been made, should the order for assessment of damages be made. That had not been decided. There was not even an application for that purpose. (p 93 e)
[9] It was unfair of the learned judge to penalise the appellant with costs as the ex parte order had lapsed and was not set aside. Neither was it found to have not been made in the first place. Therefore, costs should be in the cause. (p 93 g)
[Bahasa Malaysia Translation Of Headnotes]
Isu dihadapan mahkamah ini adalah sama ada keputusan Hakim Mahkamah Tinggi mengenepikan perintah injunksi ex parte adalah betul atas dasar perintah itu adalah di luar tempoh 21 hari menurut A. 29 k. 1(2B) Kaedah-Kaedah Mahkamah Tinggi 1980 (‘KKMT’). Hakim tersebut telah mengambil kira hari perintah injunksi ex parte itu dibuat dalam pengiraan tempoh 21 hari itu.
Diputuskan:
Oleh Abdul Hamid Mohamad HMR
[1] Hari perintah injunksi itu dibuat tidak harus diambilkira dalam pengiraan tempoh 21 hari itu (Sam Peng Thong & Ors v. Tetap Meriah Sdn Bhd). Aturan 29 k. 1(2B) KKMT menyatakan “at the end of 21 days from the date on which it is granted”. Aturan 3 k. 2(2) KKMT dan s. 54(1)(a) Akta Tafsiran 1948 dan 1967 mengkehendaki hari perintah itu dibuat dikecualikan dalam pengiraan 21 hari. Oleh itu, perintah injunksi ex parte itu yang dibuat pada 6 Disember luput pada 27 Disember 2001.
[2] Keputusan kes Cheah Cheng Lan v. Heng Yea Lee bahawa injunksi ex parte tidak boleh dilanjutkan melebihi 21 hari adalah betul. Perintah ex parte itu secara automatiknya luput selepas 21 hari. Walaubagaimanapun, hanya perintah ex parte itu yang luput selepas tempoh itu dan bukan permohonannya. Permohonan selepas penyampaian bertukar menjadi permohonan inter partes. Permohonan yang sekarang menjadi permohonan inter partes itu masih sah.
[3] Walaupun perintah permohonan injunksi ex parte itu luput pada 27 Disember 2001, permohonannya masih sah. Malah, permohonan itu masih sah pada tarikh rayuan ini didengar. Atas sebab ini, masaalah yang dihadapi oleh Hakim Mahkamah Tinggi yang tidak dapat mendengar permohonan inter partes itu pada 26 Disember 2001 atas alasan yang wajar tidak timbul.
[4] Hakim Mahkamah Tinggi jelas mempunyai bidangkuasa sama ada untuk membenarkan injunksi ad interim sementara menunggu pendengaran permohonan inter partes itu. Dalam kes Jakob Renner v. Scott King, injunksi ad interim diberikan sementara menunggu pendengaran permohonan injunksi interim inter partes.
[5] Injunksi ad interim bukanlah tambahan kepada perintah ex parte yang luput selepas 21 hari. Ia adalah satu perintah baru yang dibuat pada masa ini di hadapan mahkamah ke atas permohonan inter partes itu. Apabila permohonan inter partes itu didengar kelak, Mahkamah akan pada masa itu memutuskan sama ada untuk membenarkan perintah injunksi inter partes. Perintah ini akan menjadi satu perintah yang baru.
[6] Sekiranya defendan ingin mengenepikan perintah ex parte itu, defendan bebas memfailkan satu permohonan untuk tujuan tersebut. Pada masa pendengaran permohonan itu, mahkamah akan memutuskan sama ada untuk mengenepikan perintah ex parte itu sekiranya ia tidak luput. Sekiranya dalam masa itu, perintah ex parte itu sudah luput, mahkamah sepatutnya mendengar juga permohonan itu, bukan untuk tujuan memutuskan sama ada untuk mengenepikannya memandangkan perintah itu telah luput tetapi untuk memutuskan sama ada permohonan perintah ex parte itu patut dibuat pada kali pertamanya. Ini adalah perlu dalam memastikan sama ada gantirugi harus diberikan.
[7] Hakim Mahkamah Tinggi tersalah dalam mengenepikan perintah ex parte itu. Oleh kerana perintah ex parte itu secara automatik luput selepas 21 hari bukanlah bermakna ianya telah salah diberikan. Begitu juga, kerana permohonan inter partes itu tidak dapat didengar dalam tempoh 21 hari bukanlah bermakna perintah itu salah diberikan. Lagi, tiada sebarang permohonan dibuat di hadapan mahkamah untuk mengenepikan perintah ex parte itu.
[8] Hakim Mahkamah Tinggi tidak sepatutnya memerintahkan perayu menepati akujanji gantiruginya. Oleh kerana perintah ex parte itu secara automatik luput selepas 21 hari bukanlah bermakna defendan secara automatiknya berhak ke atas gantirugi. Persoalannya adalah sama ada permohonan perintah ex parte itu sepatutnya dibuat. Sekiranya tidak, barulah perintah taksiran itu sepatutnya dibuat. Ini tidak diputuskan, malah tiada sebarang permohonan dibuat untuk tujuan itu.
[9] Adalah tidak adil untuk Hakim Mahkamah Tinggi mengenakan kos ke atas perayu memandangkan perintah ex parte itu telah luput dan bukan diketepikan. Perintah ex parte itu juga bukan tidak sepatutnya dibuat. Oleh itu, kos sepatutnya menjadi dalam kausa.
[Kedua-dua pihak dikehendaki menghadirkan diri di hadapan hakim yang arif untuk mendapatkan tarikh pendengaran permohonan inter partes; injunksi ad interim diberikan sehingga selesai pendengaran permohonan oleh hakim yang arif; deposit dipulangkan kepada perayu.]
Reported by Usha Thiagarajah

Case(s) referred to:
Beese & Ors (Managers of Kimpton Church of England Primary School) & Ors v. Woodhouse & Ors [1970] 1 All ER 769 (refd)
Cheah Cheng Lan v. Heng Yea Lee [2001] 1 CLJ 727 (refd)
Jagjit Singh Khanna v. Dr Rakhul Das Mullick & Anor AIR [1988] Cal 9 (refd)
Jakob Renner v. Scott King [2000] 3 CLJ 569 (refd)
Sam Peng Thong & Ors v. Tetap Meriah Sdn Bhd [2002] 1 CLJ 105 (foll)
Legislation referred to:
Interpretation Acts 1948 & 1967, O. 54(1)(a)
Rules of the High Court 1980, O. 3 r. 2(2), O. 29 r. 1(2B)
Counsel:
For the appellant – CV Das (K Mohan & K Prakash); M/s Shook Lin & Bok
For the respondent – Yougesswary Singam; M/s Zainal Abidin & Co

JUDGMENT
Abdul Hamid Mohamad JCA:
The appellant (the plaintiff in the High Court) is the company that manages the Regency Hotel and Resort at Port Dickson, belonging to the respondent (the defendant in the High Court). A management agreement was entered by the parties on 15 September 1991. It was to last for ten years. The appellant would be paid 5% of the total annual revenue. Under the agreement the appellant was to have uninterrupted control and operation of the hotel and the respondent agreed not to interfere with the day to day running of the hotel.
On 5 December 2001, the appellant filed a suit (S5-22-1254 of 2001) from which this appeal arises. In the suit, the appellant alleges that the respondent had failed and/or neglected to pay the appellant its management fees from October 1995 amounting to RM348,582.43 as at 31 December 1996. The appellant also alleges that the respondent had wrongfully and unlawfully terminated the management agreement. There is also another suit filed in Kuala Lumpur High Court No. D2-22-67-96 between the parties which is still pending.
On 6 December 2001, the appellant filed an ex parte summons in chambers praying for the following orders:
1. The Defendant whether by its agents, servants, officers or howsoever, be restrained from interfering with or obstructing or hampering the Plaintiffs continued management and operation of The Regency Hotel and Resort, Port Dickson (“the Hotel”).
2. The Defendant within 2 days of service of this order, whether by its agents, servants, officers or howsoever, including by way of signing cheques or issuing instructions, do all things as may be necessary to pay, authorise, or ensure payment of wages, allowances or contractual dues owing to or arising in respect of all persons working at the Hotel for the period November 2001 as specified in SCHEDULE A herein out of the funds generated by the operations of the Hotel including funds in Bumiputra Commerce Bank Account No. 05080007490051 and The Standard Chartered Bank Account No. 836144611102 (“the accounts”), and for subsequent months to pay, authorise or ensure payment from the funds as aforesaid in accordance with such lists of staff or employees as may be submitted by the Plaintiff to the Defendant within 7 days of receipt of such submission;
3. The Defendant within 2 days of service of this order, whether by agents, servants, officers or howsoever, do all things as may be necessary to pay, authorise or ensure payment of outstanding amounts due to suppliers and creditors as specified in SCHEDULE B herein, out of the funds generated by the operations of the Hotel including funds in the accounts and to hereafter pay, authorise or ensure payment from the funds as aforesaid in accordance with such lists of creditors and suppliers as may be periodically submitted to the Defendant by the Plaintiff within 7 days of receipt of such submission;
4. The parties be at liberty to apply;
5. A date to be fixed for the inter partes hearing of this application;
6. That provision may be made for the costs of this application; and
7. Such further or other relief which this Honourable Court deems fit.
The learned judge heard the application (encl. 4) on 6 December 2001 and granted prayers (1), (2), (3) and (4). The learned judge also fixed the inter partes hearing on 24 December 2001.
On 24 December 2001, the inter partes hearing of encl. 4 was adjourned to 26 December 2001.
On 26 December 2001, learned counsel for the appellant, sought an adjournment because he had only been served with an affidavit by the respondent that very same morning and suggested that the inter partes hearing be fixed in the first week of January 2002. The learned counsel also prayed that in the interim period the ex parte injunction that was granted on 6 December 2001 be extended. There was an argument whether the ex parte order would expire on 26 December 2001 or 27 December 2001. That depends on when the computation of the 21 days is to begin, that is, whether the day the order was made is to be included or not. The learned judge held that the day the order was made must be counted and that the 21 days expires on 26 December 2001.
On the power to extend the ex parte order, the learned judge held that he was “constrained to follow” Cheah Cheng Lan v. Heng Yea Lee [2001] 1 CLJ 727 CA. This is what the learned judge says:
With a heavy heart, I was constrained to follow Cheah Cheng Lan even though that decision was decided per incurium and even though that decision greatly eroded the inherent powers of the court “to make any order as may be necessary to prevent injustice or to prevent an abuse of the process of the court” as set out in Order 92, rule 4 of the RHC. The doctrine of stare decisis compelled me to follow Cheah Cheng Lan blindly.
Consequently, the learned judge made the following orders:
(1) set aside the ex parte interim injunction that was granted on 6 December 2001;
(2) order that the plaintiff make good its undertaking as to damages to the defendant and here the defendant has to file a formal application to support its application for that prayer;
(3) refuse to extend the ex parte interim injunction that has automatically lapsed by today (26 December 2001) which the plaintiff orally requested to be extended until the hearing of the inter partes; and
(4) costs to the defendant.
Before us, even though it is not essential for the determination of the appeal, we were asked to decide on the issue whether, in the computation of the 21 days life span of an ex parte injunction under O. 29 r. 1(2B) of the Rules of the High Court 1980 (RHC 1980), the day the order is made should be counted or not.
Order 29 r. 1(2B) reads:
(2B) Unless sooner revoked or set aside, an interim injunction obtained on an ex parte application shall automatically lapse at the end of 21 days from the date on which it is granted.
Order 3 r. 2(2) RHC 1980 provides:
(2) Where the act is required to be done within a specified period after or from a specified date, the period begins immediately after that date.
Order 54 of the Interpretation Acts 1948 and 1967 (Act 388) provides:
54(1). In computing time for the purpose of any written law:
(a) a period of days from the happening of an event or the doing of any act or thing shall be deemed to be exclusive of the day on which the event happens or the act or thing done;
The learned judge in this case had counted 6 December 2001, the day the injunction order was made in computing the 21 days. Our attention was drawn to the judgment of Syed Ahmad Helmy JC in Sam Peng Thong & Ors. v. Tetap Meriah Sdn. Bhd. [2002] 1 CLJ 105 in which the learned Judicial Commissioner excluded the day the order was made in computing the 21 days.
In our judgment, the view taken by Syed Ahmad Helmy JC is the correct view. It should be noted that O. 29 r. 1(2B) RHC 1980 talks about “at the end of 21 days from the date on which it is granted.” Both O. 3 r. 2(2) RHC 1980 and s. 54(1)(a) of the Interpretation Acts 1948 and 1967 require that the day the order is made to be excluded in reckoning the 21 days. So, the ex parte injunction granted on 6 December 2001 expired on 27 December 2001.
The next question to be answered is whether an ex parte injunction can be extended beyond the 21 days. The answer has clearly been given by this court in Cheah Cheng Lan. We have no reason to disagree with it, even if we can. We are of the view that that case was correctly decided, and all that it decided is that an ex parte injunction cannot be extended beyond the 21 days. The order automatically lapses after 21 days. It is the ex parte order that lapses, not the application, which upon service, is, by law, converted to an inter partes application. The application, now inter partes, subsists.
Previously, there was no provision as the present r. 1(2BA) of O. 29. So, upon the order being made on the ex parte application, the application can logically be said to have been exhausted. Now the rule provides that the same ex parte application be served on the relevant party within one week and the court is required to fix a date for inter partes hearing to be held before the expiry of the 21 days. What it means is that, upon it being served, its character changes to one of inter partes. True that a date of hearing inter partes must be fixed before the expiry of the 21 days. The purpose is to require the parties (now the parties, not just the applicant) to appear before the judge before the ex parte injunction expires. Of course, if the parties are ready, the court may hear and may decide whether to grant a fresh inter partes injunction or not. The court is not extending the ex parte injunction because it cannot by law be extended. Of course, it may be, for one reason or other, as in this case, that the court is unable to hear the application inter partes. What happens then? The ex parte order expires? Yes. The application, now converted into an inter partes application, also expires? No. The application does not expire, only the ex parte order expires. By analogy, an ex parte application, which for some reasons cannot be heard or heard but no decision is given within 21 days from its filing, does not expire after 21 days from its filing. It is still there until it is heard and decided upon, even well after 21 days of its filing.
So, even though in this case, the ex parte injunction expires on 27 December 2001, the application, on 26 December 2001 when the parties appeared before the learned judge, was still in existence, indeed it was still in existence even on the day we heard this appeal.
That being the case the “problem” faced by the learned judge who, for good reasons, could not hear the application inter partes on 26 December 2001 actually did not arise. The “problem” was thought to have arisen because the learned judge thought that not only the ex parte order expired after 21 days, but the application, now inter partes, had also expired. With respect, we think that is not the case.
So, faced with the situation that the learned judge did, ie, he could not hear the application inter partes before the expiry of 21 days and the ex parte injunction was expiring, what could he do?
Bear in mind, that the application was still before him, alive and pending. He clearly had the jurisdiction to consider whether or not to grant an ad interim injunction pending the hearing inter parties of the application. From my own experience, quite often parties would agree to such an order or the defendant would give an undertaking to maintain the status quo pending the hearing of the application inter partes. But even if they do not agree, the court has the jurisdiction to make such an order.
Such a practice has been adopted in England. In Beese and Others (managers of Kimpton Church of England Primary School) and Others v. Woodhouse and Others [1970] 1 All ER 769 (CA) the plaintiff having filed a writ and the statement of claim, took out a summons for an interim injunction. However, pending the hearing of the application inter partes, the judge granted an injunction, ex part e. The Court of Appeal held that the court below had the jurisdiction to do so. The headnote summarises the judgment thus:
Where an application for an injunction cannot be heard by the court through no fault of the plaintiff or defendant, and the judge comes to the conclusion on a prima facie view that irreparable damage may be done to the plaintiff by not preventing the continuance of the alleged nuisance or whatever other wrongdoing it may be by the defendant, he has jurisdiction to grant an ex parte injunction (see p. 771 g, p. 772 g, and p. 773 j, post).
In this country Low Hop Bing J has also granted an ad interim injunction pending the hearing of an application for an interim injunction which was to be heard inter partes in Jakob Renner v. Scott King [2000] 3 CLJ 569. The learned judge relied on a decision of the court in India in Jagjit Singh Khanna v. Dr. Rakhul Das Mullick & Anor AIR [1988] Cal. 9 and said:
Applying the principle enunciated in the above case, I am of the view that it is within the jurisdiction of our superior courts to grant ad interim injunction pending the disposal of an application for interlocutory injunction, such as encl. 2 in the instant case. This view is in line with the powers of the High Court under s. 25 of the Courts of Judicature Act 1964 and the additional powers under para 6 of the schedule to the same Act which include the power to grant injunction in any manner whatsoever.
Indeed, as we understand it, it is quite a common practice amongst judges in this country.
That way, the status quo is preserved after the expiry of the ex parte order until the inter partes hearing of the application.
It must be pointed out that the ad interim injunction is not an extension of the ex parte order which expires after 21 days. It is a fresh order made on the converted inter partes application now before the court. And, when the court finally hears the application, inter partes, the court will then decide whether or not to grant an injunction, inter partes. That will be a fresh order again.
It should be added, that when the court hears the application, inter partes, the issue is whether the court should or should not grant a fresh injunction, inter partes. The court is not considering whether or not to extend the ex parte order, which cannot be extended beyond 21 days. Neither is the court concerned with the question whether the ex parte order should be set aside or not. Those are not the issues before the court.
However, if the defendant wants to set aside the ex parte order, the defendant is at liberty to file an application for that purpose. It is at the hearing of that application that the court should decide whether to set it aside or not, if it has not lapsed. If in the meantime the ex parte order has lapsed, the court should nevertheless hear the application, not for the purpose of setting it aside or not, because it has lapsed, but for the purpose of determining whether that ex parte order should or should not have been made in the first place. This is necessary in order to determine whether damages should be awarded or not.
In this case, the learned judge, having found that the ex parte order would expire on 26 December 2001 and the application could not be heard, inter partes, before the expiry of the 21 days proceeded to set aside the ex parte order of 6 December 2001.
With respect, we are of the view that it is wrong for the learned judge to do so. First, the order would expire anyway after 21 days. Secondly, the fact that it automatically expires does not mean that it was wrongly granted in the first place that justifies it to be set aside. Thirdly, the fact that the application could not be heard inter partes within 21 days does not mean that the ex parte order was wrongly given. Fourthly, there was no application to set aside the ex parte order before the court.
The learned judge also made an order that the appellant makes good its undertaking as to damages. Again, with respect, for the same reasons given in the preceding paragraph, such an order should not have been made. The fact that an ex parte order lapses automatically after 21 days does not mean that the defendant is automatically entitled to damages. The question is should the ex parte order have been made at all? Only if it should not, then the order for assessment of damages should be made. That has not been decided. There was not even an application for that purpose.
Regarding the order of the learned Judge refusing to extend the ex parte interim injunction, we made no order as the question extending it does not arise at all because it cannot be extended anyway.
The learned judge also ordered that costs be paid to respondent. Here again, with respect, we are of the view that it is unfair to penalize the appellant (plaintiff) with costs as the ex parte order had lapsed and was not set aside, nor was it found that it should not have been made in the first place. We ordered that costs be in the cause.
Now, as has been said earlier, what had lapsed is the ex parte order, not the application, which has now become an inter partes application. There is no time limit for it to be heard. It still subsists. So, we directed that the parties appear before the learned judge on 15 April 2002 to get a date of hearing, inter partes, of the application which should be heard as a matter of urgency. In the meantime, we were told that there was an Erinford injunction granted by this court until the day we decide this appeal. In the interest of justice and in the circumstances of this case, we granted an ad interim injunction on the same terms as the Erinford injunction granted by this court on 28 January 2002 until the disposal of the application by the learned judge.
In the circumstances of this case we ordered that the costs of this appeal be costs in the cause and that the deposit to be refunded to the appellant.

SPEECH TO MEMBERS OF THE DISCIPLINARY BOARD, DISCIPLINARY COMMITTEE, INVESTIGATING TRIBUNAL AND THE STATE BAR COMMITTEES

9th March 2002
(Johor Bharu)

By

Dato’ Abdul Hamid bin Haji Mohamad
(Chairman, Advocates and Solicitors’ Disciplinary Board)

I welcome you all to this meeting and thank you for coming. We appreciate your sacrifices.

This is the second meeting of this kind we have had had so far, the first being in Penang on 12^th. January 2002. Even though the response in Penang in  terms of the number of people attending the meeting was poor, but the participation of those who attended was very encouraging. They showed their willingness to sacrifice their time (and with it income) not just to attend the meeting, but also to sit as members of the Disciplinary Committee and the Investigating Tribunal.

Special mention must be made of the non-lawyer members. Percentage-wise, the number of non-lawyer members who attended the meeting in Penang was many times more than the lawyer members. A special thanks to  them.

We decided to have these meetings because we think that there is a need to meet the members of the Disciplinary Board, the Investigating Tribunal as well as members of the State Bar Committees. Through these meetings we hope to enlighten you of the number of complaints received,  the number disposed of, the backlog, the need to speed up the disposal of complaints, the problems we are facing and to find ways to overcome them, to hear your grouses and suggestions and to seek your co-operation to effectively and fairly  deal with the complaints. That is why we are here. And that is why we invite you to be here.

The Board was established in 1992 and I was appointed Chairman in February 2001 for a period of two years. One year has gone and another year left. Time really flies.

Through the hard work of  our new Director, Ms. Lim Eye Thun (I must make a special mention of her), not forgetting the officers and staff of the Board and members of the Board (who I find are very committed in the discharge of their duties), and through the computerisation of the office, we now know exactly (almost) the volume of work that we have.

To give you some idea about it, according to the latest statistics compiled by the officers and staff of the Board, we find that the number of complaints registered from 1992 until the end of February this year is 5195. In year 2001 alone 655 complaints were registered, i.e. nearly two complaints a day, be it a public holiday or not. During the same period, 2563 complaints were disposed off i.e. about 50%. We still have 2622 complaints pending, i.e. 50%. In year 2001 we managed to dispose off 656 complaints, an increase of 323% compared to the previous year’s disposal of 203 cases. Indeed as the statistics show, year 2001 was the first year in the history of the Board that more cases were disposed of than registered, that too only by one case. I thank all of you, especially the members of the Board for the hard work they have put in.

Whilst we should be quite happy with our achievement in year 2001, we should not allow ourselves to be misled by the statistics and to have a false sense of satisfaction and confidence. The reason is this. A large number of the cases disposed of were cases that the Board found to have no merits, after initial study by the Board, to refer to the Investigating Tribunal. In legal terms, we can say that they were dismissed summarily, somewhat like what the Courts do under Order 18 rule 19 of the Rules of the High Court, 1980.

The complaints that are pending or going for investigation (or “trial”, in legal terms) still form the bulk of those pending. These are the ones that will take time to hear. These are the ones that will involve the members of the Investigating Tribunal.

To give you an idea of the volume pending before the Investigating Tribunal and the Disciplinary Committee, at the end of February 2002, about 200 cases have been referred to and are pending before the Investigating Tribunal. About 200 more have been decided by the Board to be referred to the Investigating Tribunal. So you can expect some of them to reach you soon. 60 cases have been referred to the Disciplinary Committee. More will definitely go to the Investigating Tribunal as the Board  completes the initial study of the complaints and subsequently to the Disciplinary Committee and finally to the Board. It is interesting, indeed worrying, to note that, according to our record, in year 2001 only 11 cases were completed by the Disciplinary Committee and 43 investigations were completed by the Investigating Tribunal. (Sometimes I wonder why I accepted this job, but I only have one more year to go. That is a small consolation).

I know that some lawyers are already complaining that they have been given too many cases to investigate. But, I am sorry, we have no choice.

But, to reduce the burden, we are doing two things. First, we are increasing the number of Investigating Tribunal and Disciplinary Committee members. Secondly, we are distributing the case more fairly amongst the members. With the help of the computer, we are in a position to know how many have been given to whom. I urge all of  to give to give top priority to hear those complaints and complete them as soon as possible. The law requires that the investigation be completed in two months. In most cases they are not and I have been extending the time as a matter of course, because I have no choice. I hope a time will come when we will be able to comply with the requirement of the law, i.e. without extension of time.

We have also identified that quite a large number of complaints concern delay in obtaining the Sijil Annual. These are straight foward cases. We have decide to put them on a fast track by appointing “special” Investigating Tribunal and fixing a number of such cases per day, first for “mention” (to borrow the Court’s terminology) and subsequently, “for hearing” (again borrowing the Court’s terminology) of cases in which the respondents dispute the complaints. That way we hope to clear the bulk of those Sijil Annual cases.

We have now also identified what we call “serial offenders”, i.e. lawyers with more than five complaints against them. We decide to take the most serious of the complaints and deal with it first, so that if he is struck off the role, we will save the time for the hearing of the other cases.

We realise that the present procedure of is very cumbersome, protracted and costly.  It delays the disposal of the cases. It takes too much of too many people’s time.  Quite often, along the way, even the complainant loses interest and does not turn up at the haring.

Indeed, under the present procedure, a complaint, if it goes through the full course, goes through six tiers i.e. the Investigating Tribunal, the Disciplinary Committee, the Disciplinary Board, the High Court, the Court of Appeal and the Federal Court compared to only three tiers that a  murder case goes through i.e. the High Court, the Court of Appeal and the Federal Court. If you count the number of people involved in the investigation and adjudication,  you will be surprised that as many as 32 people are involved compared to only seven in a murder case. There is something clearly very wrong here unless lawyers are very special people, more special than the Rulers whose cases are heard by only a one-tier Court of five Judges.

So, we are in the process of putting up a proposal to amend the Legal Profession Act, at least, to do away with the Investigating Tribunal and, may be, the appeal to the High Court so that it will go direct to the Court of Appeal.

You must have noticed that the Director no longer travels around, sitting as Secretary to every, or almost every, hearing of the Investigating Tribunal and Disciplinary  Committee. We made this decision because we found that it delayed proceedings (as only one hearing can go on at any one time if he were to attend all of them), costly and left very little time for the Director to attend to the work at the office.

Some members of the Investigating tribunal and the Disciplinary Committee are not happy with the decision because they want the luxury of  having someone to record the notes of evidence for them, a luxury which Judges never enjoy. Personally, I do see no problem of you taking down the notes of evidence yourselves, something which I think should not and cannot be delegated to someone else. The hearing is not a meeting of a Board of Directors of a company. It is a “judicial proceeding”. Whatever the law, in most cases, they do not run into very many pages compared to what Judges have to take down. The Board will pay for the typing which may be done by your secretaries or typists. Indeed, if some of you wish to be appointed Judges one day, it is a good practice.

We have also standardised the claim form and the rates payable for sitting allowance for non-lawyer members and travelling allowances and expenses for all member of the Investigating Tribunal and Disciplinary Committee.

I call on all of you to make some sacrifices for the sake of your profession. This is your profession. It is in the interest of your profession, besides the interest of the nation, that the members of the legal profession are disciplined. It is the wish of the members of the legal profession that the power to discipline their errant members remain with  them. It is, therefore, your duty to make some sacrifices to ensure that the Board, the Committee and the Tribunal function efficiently, speedily and fairly. Otherwise, if and when the public loses confidence in us, you may even lose that right. I admit I am being pessimistic. But, I think it is better to err on the side of pessimism than to be wrongly over confident.

Thank you.

CADANGAN MEWUJUDKAN BAHAGIAN MUAMALAT DI MAHKAMAH TINGGI: SUATU ULASAN

Oleh

Dato’ Abdul Hamid bin Haji Mohamad
Hakim, Mahkamah Rayuan, Malaysia

Latarbelakang

Akta Bank Islam 1983 mula berkuatkuasa pada 7 April 1983. Ini diikuti oleh Akta Takaful 1984 yang mula berkuatkuasa pada 1 Januari 1985. Kedua-dua undang-undang itu adalah undang-undang Persekutuan. Kes-kes yang berbangkit daripada undang-undang itu dibicarakan oleh mahkamah sivil. Pemakaian undang-undang itu tidak terhad kepada orang-orang Islam sahaja.

Akta Bank Islam 1983 dan Akta Takaful 1984 tidak memperuntukkan format transaksi-transaksi, contoh-contah perjanjian atau borang bagi transaksi-transaksi yang dikatakan mengikut hukum syarak itu. Pegawai-pegawai bank yang menjalankan kerja-kerja itu, baik pegawai bank Islam atau bank-bank konvensional yang turut mewujudkan perkhidmatan perbankan Islam itu adalah pegawai-pegawai yang terlatih dan mempunyai pengalaman kerja di bank-bank konvensional. Demikian juga dengan takaful. Peguam-peguam yang menggubal perjanjian-perjanjian yang dipakai untuk transaksi-transaksi itu adalah peguamcara dan peguambela sivil. Mereka semestinya memakai contoh-contoh dokumen atau perjanjian yang biasa mereka guna. Itu sahaja yang ada pun. Lagi pula jika suatu kontrak hendak dibuat, undang-undang yang terpakai adalah Akta Kontrak 1950. Kita belum ada Akta Kontrak Syariah. Bentuk transaksi-transaksi yang dipakai dalam perbankan Islam dan takaful pun adalah berasaskan transaksi-transaksi yang biasa digunakan oleh bank-bank dan syarikat-syarikat insurans konvensional, dengan pengubahsuaian yang difikirkan perlu untuk “mengIslamkannya”, khususnya untuk mengelak unsur riba. Di samping itu, dalam transaksi perbankan Islam itu pun, ada pula dokumentasi-dokumentasi yang perlu dilakukan mengikut undang-undang sivil seperti gadaian mengikut peruntukan-peruntukan Kanun Tanah Negara, jaminan (“guarantee”), surat kuasa wakil (“power of attorney”) dan lain-lain. Ini belum mengambil kira produk-produk lain yang lebih “sophisticated” seperti pengeluaran bon, debentur dan sebagainya.

Saya tidak fikir ada pilihan lain kerana urusan perbankan Islam dan takaful dalam bentuk yang diamalkan sekarang itu sendiri adalah suatu perkara baru dan tidak ada precedent dalam kitab-kitab fiqah lama. Ini adalah hakikat yang perlu diterima. Adalah tidak betul membuat anggapan bahawa  undang-undang sivil tidak relevan dalam urusan perbankan Islam atau takaful.

Daripada perbincangan-perbincangan saya dengan pegawai-pegawai Bank Negara dan peguamnya nampaknya ada dua bidang yang memerlukan perhatian. Pertama, forum. Kedua, undang-undang substantif.

Forum

Mengenai forum, soalnya ialah mahkamah atau badan manakah yang patut membicarakan kes-kes perbankan Islam dan takaful. Saya berpendapat bahawa forum yang paling baik ialah mahkamah sivil. Ini kerana, pertama, perbankan dan insurans terletak dalam bidangkuasa perundangan Persekutuan dan mahkamah sivil.

Kedua, undang-undang yang terlibat dalam transaksi-transaksi itu, hampir kesemuanya, adalah undang-undang sivil seperti Akta Syarikat 1965, Kanun Tanah Negara, Akta Setem 1949, Akta Surat Kuasa Wakil 1949, Akta Perindustrian Sekuriti 1983 dan lain-lain.

Ketiga, undang-undang yang berkenaan dan kebanyakan dokumentasi adalah dalam bahasa Inggeris dan hakim-hakim mahkamah syariah tidak “familiar” dengannya.

Keempat, ada pihak-pihak dalam sesuatu kes itu yang bukan beragama Islam sedangkan mahkamah syariah hanya mempunyai biangkuasa terhadap orang-orang Islam.

Kelima, mahkamah syariah adalah mahkamah Negeri yang bidangkuasanya terhad kepada sesuatu Negeri itu sahaja. Ini menimbulkan masalah panyampaian proses mahkamah dan pelaksanaan perintah di Negeri lain. Apatah lagi jika defendan berada di luar negera yang memerlukan penyampaian dan pelaksanaan di luar negara.

Keenam, bentuk pelaksanan yang terdapat di mahkamah syariah amat terhad. Sebagai misalan, mahkamah syariah tidak mempunyai bidangkuasa memberi remedi seperti kebankrapan, penggulungan syarikat, lelongan di bawah Kanun Tanah Negara dan lain-lain. Dalam kes Tinta Press Sdn. Bhd. V. Bank Islam Malaysia Bhd. (1987) 2 MLJ 192 misalnya perintah yang dipohon oleh Bank Islam ialah injunksi mandatory, satu remedi “common law”. Semua ini bukan sahaja di luar bidangkuasa mahkamah syariah malah asing (“foreign”) kepada hakim-hakim mahkamah syariah.

Ketujuh, manakala mahkamah sivil cuma mempunyai satu Mahkamah Rayuan dan satu Mahkamah Persekutuan untuk seluruh negara, mahamah syariah mempunyai empat belas Mahkamah Rayuan Syariah, satu bagi setiap Negeri. Kemungkinan mahkamah-mahkamah itu memberi keputusan yang berlainan dalam hal yang serupa tidak boleh ditolak. Malah, ada pula pendapat di kalangan hakim-hakim mahkamah syariah dan “pakar-pakar perundangan Islam” bahawa doktrin “stare decisis” (penghakiman mahkamah yang lebih tinggi mengikat mahkamah yang lebih rendah mengenai persoalan yang serupa) tidak terpakai di mahkamah syariah. Ini akan mengakibatkan ketidakpastian dalam undang-undang dan kesukaran peguam-peguam menasihatkan anakguamnya. Selain daripada itu, Mahkamh Rayuan Syariah masih tidak berfungsi sepenuhnya. Ada yang tidak pernah bersidang langsung selama beberapa tahun kerana ketiadaan Ketua Hakim Syarie dan lain-lain.

Untuk perbincangan lebih lanjut mengenai perkara ini lihat “Sistem Kehakiman dan Perundangan di Malaysia: Satu Wawasan” (2001) 4 MLJ clxxx.

Saya berpendapat bahawa suatu tribunal khas juga tidak sesuai kerana, antara lain, ia tidak mempunyai kuasa “memaksa” sesuatu pihak atau saksi hadir, mengemukakan dokumen dan lain-lain seperti yang boleh dilakukan melalui proses mahkamah. Ia tidak boleh memberi remedi-remedi yang boleh diberi oleh mahkmah seperti injunksi, pelaksanaan spesifik dan lain-lain. Ia tidak mempunyai bidangkuasa memberi perintah kebankrapan, penggulunagn syrikat, perintah jualan (lelonagan) dan lain-lain. Ia juga tidak mempunyai jentera untuk menguatkuasakan perintahnya. Prosiding dan keputusannya senentiasa tertakluk kepada kajian kehakiman (“judicial review”).

Undang-undang Substantif

Kemusykilan kedua ialah mengenai undang-undang substantif, khususnya berkenaan hukum syarak. Adalah dikhuatiri kiranya persoalan hukum syarak berbangkit dalam sesuatu prosiding, hakim-hakim mahkamah sivil mungkin akan menghadapi masalah memutuskannya.

Patut diambil perhatian bahawa mengikut kes-kes yang dilaporkan dalam jernal-jernal undang-undang, sehingga ke hari ini, walaupun beratus-ratus kes telah difailkan di mahkamah sivil, belum pernah ada satu kes pun di mana persoalan hukum syarak perlu diputuskan. Kebanyakan kes-kes itu adalah berasaskan pecah kontrak dan permohonan untuk mendapat perintah jualan mengikut peruntukan-peruntukan di bawah KanunTanah Negara. Tiga kes kerap disebut. Kes-kes itu ialah: Tinta Press Sdn. Bhd. V. Bank Islam Malaysia Bhd. (1987) 2 MLJ 192 (Mahkamah Agung), Bank Islam Malaysia Berhad v. Adnan Bin Omar (1994) 3 CLJ 735 (Mahkamah Tinggi) dan Dato’ Hj. Nik Mahmud bin Daud v. Bank Islam Malaysia Berhad (1996) 4 MLJ 295 (Mahkamah Tinggi).

Dalam kes Tinta Press Sdn. Bhd., persoalan utama ialah sama ada Mahkamah Tinggi betul dalam mengeluarkan perintah injunksi mandatory. Injunksi mandatory adalah satu remedi “common law” dan undang-undang berkenaan dan prosedurnya diperuntukkan dalam Akta Relif Spesifik 1950  dan Kaedah-Kaedah Mahkamah Tinggi 1980 (KMT 980). Tidak ada hukum syarak mengenainya. Memanglah salah satu hujah yang dikemukakan ialah bahawa transaksi itu sebenarnya adalah satu transaksi pinjaman, bukan pajakan (“a loan transction not a lease”). Mahkamah melihat kepada kandungan perjanjian yang dimasuki dan memutuskan bahawa ia adalah satu transaksi pajakan. Perlu diambil perhatian bahawa apa yang dihujahkan ialah bahawa transaksi itu adalah satu pinjaman dan bukan bahawa transaksi itu bercanggah dengan hukum syarak atau mengikut hukum syarak transaksi itu adalah satu pinjaman.

Dalam kes Adnan Bin Omar, Bank Islam memberi kemudahan kewangan mengikut prinsip Al-Bai’ Baithaman Ajil kepada Adnan yang dijamin (“secured”) dengan satu pajakan (“charge”) mengikut Kanun Tanah Negara. Adnan gagal menjelaskan bayaran ansuran seperti yang dipersetujui. Adalah salah satu terma perjanjian itu jika Adnan gagal menjelaskan ansurn itu, Bank Islam berhak menjual tanah yang digadai itu, juga mengikut peruntukan Kanun Tanah Negara seperti transaksi bank konvensional juga. Oleh itu Bank Islam memohon melalui saman pemula saperti yang diperuntukkan oleh KMT 1980, juga seperti yang biasa dilakukan oleh bank-bank konvensional. Hujah yang dikemukakan ialah bahawa Bank Islam dalam prosiding itu gagal mematuhi kehendak peruntukan-peruntukan Aturan 83 kaedah 3(3) dan (7) KMT 1980. Bantahan itu dibuat atas dua alasan. Pertama, kerana Adnan hanya menerima RM265,000.00 bukan RM583,000.00 seperti yang dituntut itu. Kedua, kerana tuntutan Bank Islam tidak termasuk faedah “seperti yang dikehendaki oleh kaedah tersebut.”

Persoalan pertama ada meritnya. Memang betul bahawa jumlah wang yang dikeluarkan oleh Bank Islam (dibayar kepada Adnan) hanyalah sebanyak RM265,000.00 bukan RM583,000.00 seperti yang dituntut oleh bank itu. Bank itu menuntut RM583,000.00 iaitu harga jualan oleh bank itu kepada Adnan mengikut prinsip Al-Bai’ Bithaman Ajil, tetapi bank itu memberi akujanji untuk memulangkan bakinya. Pesuruhjaya Kehakiman yang membicarakan kes itu menerima kenyataan bank itu bahawa jumlah yang diberi (“advanced”) berdasarkan dokumen-dokumen yang dikemukakan sebagai ekshibit, adalah RM583,000.00. Perlu diambil perhatian bahawa hujah itu dikemukakan atas alasan ia melanggar peruntukan Aturan 83 kaedah 3(3), KMT 1980, bukan kerana ia melanggar hukum syarak.

Persoalan kedua adalah ganjil. Kaedah berkenaan (kaedah 3(7), Aturan 83, KMT 1980) bukan mengatakan faedah mesti dituntut. Ia cuma menghendaki supaya faedah itu dinyatakan dalam sesuatu tuntutan supaya mahkamah dapat tahu berapa hutang pokoknya dan berapa faedahnya. Jika tidak ada faedah apa yang hendak dinyatakan dalam tuntutan itu? Sekali lagi, hujah itu bukan satu persoalan hukum syarak.

Kes Dato’ Hj. Nik Mahmud juga melibatkan kemudahan kewangan mengikut prinsip Al-Bai’ Bithaman Ajil. Sebagai jaminan (“security”) gadaian mengikut Kanun Tanah Negara dibuat. Melalui notis usul Dato’ Hj. Nik Mahmud memohon perintah bahawa gadaian dan perjanjian jual beli itu tak sah. Alasannya ialah bahawa transaksi itu bercanggah dengan peruntukan Enakmen Tanah Rizab Melayu Kelantan 1930 (“Kelantan Malay Reservation Enactment 1930”). Persoalan undang-undang tanah mengikut Kanun Tanah Negara juga telah dibangkitkan. Mahkamah Tinggi menolak hujah-hujah itu. Perlu diambil perhatian bahawa pada mulanya peguam Nik Mahmud telah juga membangkitkan hujah bahawa Bank Islam dilarang daripada menerima gadaian mengenai satu transaksi berunsur riba dan oleh itu penerimaan gadaian tersebut adalah menyalahi (“ultra vires”) Tataurusan Persatuan (“Articles of Association”) bank itu. Mujurlah kemudiannya peguam Nik Mahmud tidak meneruskan dengan hujah itu. Jika tidak, mahkamah akan perlu memutuskan persoalan hukum syarak, ia itu sama ada transaksi itu satu transaksi berunsur riba atau tidak. Pesoalan itu perlu diputuskan terlebih dahulu sebelum mahkamah boleh memutuskan sama ada ia melanggar Tataurusan Persatuan Bank Islam atau tidak. Jadi, walau pun setakat ini mahkamah belum kena membuat keputusan mengenai hukum syarak, ia sudah hampir-hampir kena membuatnya. Maka kemungkinan ia akan kena berbuat demikian tidaklah boleh dipandang ringan. Persediaan perlulah dibuat.

Sebelum membincang badan mana yang lebih sesuai untuk memutuskan persoalan-persoalan seperti itu, ada beberapa perkara yang patut dijelaskan terlebih dahulu. Pertama, pada pandangan saya, tanggapan umum bahawa orang-orang yang berkelulusan “universiti Islam” dan pandai berbahasa Arab semestinya mempunyai kepakaran dalam perbankan Islam dan takaful adalah tidak tepat. “Universiti Islam”, seperti universiti-universiti lain, menawarkan berbagai-bagai disiplin. Malah, seorang yang berkelulusan syariah pun tidak semestinya arif dalam perbankan Islam dan takaful. Dia besar kemungkinan arif mengenai hukum berkenaan riba dan jual beli mengikut hukum syarak dan lain-lain. Tetapi, perbankan Islam dan takaful seperti yang diamalkan sekarang ini bukannya sesuatu yang terdapat dalam kitab-kitab fiqah tradisional. Malah, bentuknya pun direka oleh ahli-ahli ekonomi konvensional yang tahu selok-belok perbankan dan insurans konvensional dengan menyesuaikannya dengan kehendak-kehendak syarak. Bentuk transaksi dan dokumentasi adalah berlandaskan transaksi dan dokumentasi perbankan dan insurans konvensional, dengan pengubahsuaian yang perlu. Transaksi dan dokumentasi (kebanyakannya dalam bahasa Inggeris) itu pula berlandaskan undang-undang yang terpakai dalam perbankan dan insurans konvensional. Pendek kata, seseorang yang tidak mengetahui perbankan dan insurans konvensional besar kemungkinan tidak akan faham perbankan Islam dan takaful yang diamalkan sekarang.

Kedua, pada pandangan saya, adalah tidak tepat membuat tanggapan bahawa orang-orang yang tidak tahu berbahasa Arab tidak boleh mempelajari undang-undang mengenai perbankan Islam dan takaful. Memang orang-orang yang tahu bahasa Arab mempunyai kelebihan dalam mengkaji hukum syarak secara umum kerana Al-Quran, Hadith dan kitab-kitab fiqah tradisional adalah dalam bahasa Arab. Mereka boleh membuat rujukan yang lebih luas mengenai hukum syarak. Tetapi, dalam bidang perbankan Islam dan takaful khasnya, penulisan dalam bahasa Inggeris tidak kurang banyaknya, jika tidak lebih daripada dalam bahasa Arab. Di negara kita pun, kebanyakan kertas-kertas kerja yang dikemukakan dalam seminar-seminar mengenai perbankan Islam dan takaful ditulis dalam bahasa Inggeris. Pada pandangan saya, seorang peguam yang menguasai bahasa Inggeris tetapi tidak tahu bahasa Arab akan dapat memahami perbankan Islam dan takaful seperti yang diamalkan hari ini dengan lebih mudah daripada seorang yang berkelulusan syariah yang menguasai bahasa Arab tetapi tidak menguasai bahasa Inggeris dan tidak mempunyai latarbelakang undang-undang sivil.

Biar apa pun, pada pandangan saya, persoalan undang-undang berkaitan dengan perbankan Islam dan takaful tidak boleh diputuskan oleh seseorang yang hanya mengetahui hukum syarak atau undang-undang sivil atau kedua-duanya sahaja. Pandangan orang-orang daripada disiplin lain, seperti “bankers” dan ahli-ahli insurans juga perlu. Ini khususnya untuk memahami fakta sesuatu masalah itu dan amalan perbankan atau takaful yang berkenaan. Kita mungkin mengetahui hukum mengenai sesuatu perkara itu dengan betul. Tetapi, jika hukum yang betul itu di pakai kepada fakta yang salah, keputusannya mungkin salah. Kes G. Rethinasamy v. Majlis Hal Ehwal Ugama Isam Pulau Pinang (1993) 2 MLJ 166 adalah satu misalan yang baik. Dalam kes itu Jawatankuasa Syariah (Fatwa) Pulau Pinang memutuskan bahawa sebahagian daripada masjid dan kubur yang berada hampir seratus tahun di atas tanah yang baru dibeli oleh G. Rethinasamy daripada seorang Cina dalam tahun 1980 hendaklah “dipindahkan”. Keputusan itu dibuat semata-mata berdasarkan pengataan G. Rethinasamy bahawa tanah itu tanahnya dan sebahagian daripada masjid dan kubur itu berada di atas tanahnya tanpa kebenarannya. Jawatakuasa itu tidak langsung menimbang sama ada bahagian tanah yang di atasnya terletak sebahagian masjid dan kubur sejak beberapa lama itu adalah tanah wakaf. Jika jawatankuasa itu menimbang fakta itu dan memutuskan bahawa bahagian tanah itu adalah tanah wakaf, seperti yang dilakukan oleh Mahkamah Tinggi, keputusan jawatankuasa itu, mengikut hukum syarak, semestinya berlainan. Kesilapan jawatankuasa itu bukan kerana ahli-ahlinya, yang terdiri daripada ulamak-ulamak itu, tidak tahu hukum syarak, tetapi kerana kesilapan mengenai fakta kes. Kita juga baca bahawa pada suatu masa dahulu ulamak-ulamak di Timur Tengah pernah mengharamkan minuman kopi. Mungkin mereka menyangka bahawa “caffeine” yang terdapat dalam kopi itu menyerupai alkohol dan oleh itu kopi menyerupai arak.

Oleh itu, badan yang lebih baik untuk membuat sesuatu keputusan, walau pun mengenai hukum syarak yang berbangkit dalam urusan perbankan Islam dan takaful, adalah satu badan yang dianggotai oleh orang-orang yang mempunyai pengetahuan dan pengalaman dalam semua bidang yang terlibat itu seperti hukum syarak, undang-undang sivil, perbankan dan insurans.

Sekarang saya akan bincang mengenai badan-badan yang mungkin boleh diberi tugas itu.

Mahkamah Syariah

Perbincangan saya mengenai mahkmah syariah yang lebih awal terpakai di bahagian ini. Saya tidak fikir mahkamah syariah adalah satu forum yang sesuai untuk dirujuk persoalan-persoalan seperti itu.

Bahagian Muamalat Mahkmah Sivil

Saya berpendapat bahawa mahkamah sivil adalah lebih sesuai untuk membicarakan kes-kes perbankan Islam dan takaful. Sebab-sebabnya telah diberi dan tidaklah perlu diulangi. Tetapi, apa yang difikirkan oleh Bank Negara perlu dilakukan ialah mewujudkan satu Bahagian di Mahkamah Tinggi, sama seperti Bahagian Perdagangan, khusus untuk membicarakan kes-kes perbankan Islam dan takaful. Tujuannya ialah untuk memberi pengkhususan kapada hakim atau hakim-hakim berkenaan supaya mereka lebih arif dalam bidang yang baru ini dan dapat membangunkan (“develop”) undang-undang mengeninya yang masih samar-samar itu.

Pada pandangan saya ini adalah satu cadangan yang baik dan mudah dilakukan, iaitu melalui tindakan pentadbiran sahaja.

Cuma, dalam melakukannya kita perlu ingat bahawa kes-kes itu tidak hanya difail di Kuala Lumpur sahaja malah di seluruh negara, tidak hanya di Mahkamah Tinggi sahaja tetapi juga di Mahkamah Majistret dan Mahkamah Sesyen, mengikut jumlah yang dituntut dan jenis perintah yang dipohon. Rayuan akan pergi ke Mahkamah Rayuan dan juga ke Mahkamah Persekutuan. Namun demikian, memandangkan cadangan ini boleh dilaksanakan melalui arahan pentadbiran sahaja, memandangkan bahawa majoriti kes-kes itu adalah di Mahkamah Tinggi dan bahawa penghakiman Mahkamah Tinggi mengikat Mahkamah Majistret dan Mahkamah Sesyen, sebagai permulaan, ia bolehlah dilaksanakan di Mahkamah Tinggi dahulu. Sebagai misalan, di Kuala Lumpur, jika bilangan kes mencukupi, seorang hakim bolehlah ditugaskan khas untuk mendengar kes-kes perbankan Islam dan takaful. Di tempat-tempat lain yang mempunyai lebih daripada seorang hakim, seorang hakim bolehlah ditugaskan untuk membicarakan kes-kes tersebut, disamping kes-kes lain. Di tempat-tempat  di mana cuma terdapat seorang hakim, hakim itu bolehlah membicarakannya melainkan jika dan apabila difikirkan perlu, seoramg hakim dari tempat lain yang mempunyai pengalaman yang lebih banyak bolehlah dihantar membicarakan kes-kes tertentu.

Pada pandangan saya, eloklah kita lakukan seperti itu dahulu dan kita lihat kesannya.

Bagaimana jika dalam kes-kes itu timbul persoalan hukum syarak? Seperti yang disebut di atas, undang-undang mengenai perbankan Islam dan takaful adalah satu bidang baru yang menggabungkan perbankan dan insurans konvensional, undang-undang sivil dan hukum syarak yang masih samar-samar.

Saya tidak fikir seorang hakim mahkamah sivil akan menghadapi masalah memahami ursuan dan transaksi perbankan Islam dan takaful. Mereka juga bukan dilatih dalam perbankan atau insurans konvensional tetapi selama ini mereka membicarakan kes-kes perbankan dan insurans konvensional. Penghakiman-penghakiman mereka boleh di baca dalam jernal-jernal undang-undang. Tetapi, yang akan menimbulkan masalah kepada mereka ialah menentukan hukum syarak mengenai sesuatu perkara, terutama sekali apabila terdapat pendapat-pendapat yang bercanggah.

Hal seperti ini pernah berlaku kepada saya dalam kes Isa Abdul Rahman v. Majlis Agama Islam Pulau Pinang (1996) 1 CLJ 283. Dalam kes itu Jawtakuasa Syariah (Fatwa) yang sama mengeluarkan dua fatwa yang bercanggah mengenai masalah yang sama. Dua orang “ulamak” yang memberi keterangan pakar mengenai hukum syarak memberi pendapat yang bercanggah. Saya sendiri tidak dapat menentukan melalui kajian saya sendiri pendapat mana yang betul atau sama ada kedua-duanya tidak betul seperti yang saya boleh lakukan mengenai hujah berkenaan “common law”. Maka oleh sebab remedi yang dipohon, perisytiharan (“declaration”), satu remedi budibicara mahkamah, saya enggan mengeluarkan perintah yang dipohon itu. Sebaliknya saya mengesyorkan supaya persoalan itu dikemukakan kepada Majlis Fatwa Kebangsaan (pada masa itu saya menyangkakan bahawa Majlis itu adalah satu Majlis tetap di peringkat kebangsaan) untuk mendapat keputusan muktamad. Setakat yang saya tahu, hingga ke hari ini, persoalan itu masih belum di bawa ke Majlis itu. Rayuan ke Mahkamah Rayuan pun masih belum didengar. Mungkin semua pihak telah hilang minat atau semangat.

Saya boleh mencari jalan keluar seperti itu dalam kes itu kerana remedi yang dipohon ialah perisytiharan. Tetapi, seorang hakim yang membicarakan suatu tuntutan sivil yang memohon perintah pembayaran wang, misalnya, atau suatu tindakan untuk mendapat perintah jualan (lelongan) tidak boleh berbuat demikian. Beliau terpaksa memutuskan persoalan itu dan membuat keputusannya.

Patutkah hakim mahkamah sivil membuat keputusan mengenai persoalan seperti itu secara sendirian atau patutkah beliau dibolehkan merujuk kepada sesuatu badan lain? Pada pandangan saya, hakim mahkamah sivil tidak patut dibebankan untuk membuat keputusan mengenai hukum syarak yang beliau sendiri tidak yakin betul atau tidak. Lagi pula, ini adalah persoalan hukum syarak yang berkait rapat dengan soal haram-halal dan dosa-pahala. Maka, pada pandangan saya, patutlah beliau dibolehkan untuk merujuk persoalan itu kepada satu badan yang lebih arif dalam hal itu.

Kita bincangkan sekarang beberapa pilihan yang ada. Pertama, Jawatankuasa Syariah (Fatwa) di Majls Agama Islam di setiap Negeri. Kedua, Majlis Fatwa Kebangsaan. Dan ketiga, Jawatankuasa Syariah di Bank Negara.

Jawatankuasa Syariah (Fatwa) yang terdapat di setiap Negeri adalah satu jawatankuasa yang terletak di bawah Majlis Agama Islam Negeri itu. Ada kemungkinan Majlis Agama Islam akan menjadi satu pihak dalam sesuatu kes yang di dalamnya persoalan itu timbul. Dalam keadaan itu, adalah “tidak telus” jika satu jawatankuasa Majlis itu yang akan memutuskan persoalan itu.

Kedua, ahli-ahli jawatankuasa itu terdiri daripada “ulamak-ulamak” yang besar kemungkinan tidak mengetahui selok-belok perbankan Islam dan konvensional, takaful dan insurans konvensional dan undang-undang sivil yang berkaitan.

Ketiga, setiap Negeri mempunyai satu jawatankuasa itu. Maka, keputusan yang bercanggah mengenai masalah yang sama mungkin berlaku.

Dalam keadaan ini, pada pandangan saya, Jawatankuasa Syariah (Fatwa) di Negeri-Negeri bukanlah pilihan yang baik.

Majlis Fatwa Kebangsaan diadakan secara ad hoc apabila Majlis Raja-Raja merujukkan sesuatu masalah kepadanya. Ahli-ahlinya terdiri daripada Mufti-Mufti dan ulamak-ulamak. Saya tidak yakin mereka mengetahui selok-belok urusan berbankan Islam atau konvensional, takaful atau insurans konvensional dan undang-undang sivil yang berkaitan. Untuk mengumpulkan kesemua mereka untuk bersidang bagi memutuskan persoalan yang dikemukakan juga mungki sukar. Ia juga melibatkan perbelanjaan yang tinggi kerana mereka datang dari setiap Negeri di Malaysia. Dalam semua keadaan ini saya juga tidak fikir ia satu plihan yang baik.

Maka yang tinggal ialah Jawatankuasa Syariah Bank Negara Malaysia. Pada pandangan saya, inilah pilihan yang paling baik, dalam keadaan sekarang. Ini kerana, Pertama, untuk merujuk kepada Jawatankuasa itu tidak perlu dipinda Perlembagaan Persekutuan. Memadai hanya dengan mengadakan peruntukan mengenainya dalam undang-undang berkenaan.

Kedua, jawatankuasa itu adalah satu jawatankuasa tetap di peringkat pusat. Ertinya, cuma ada satu badan yang akan memutuskan persoalan-persolan itu. Maka, kemungkinan terdapat keputusan yang bercanggah mengenai masalah yang serupa akan dapat dielak. (Tugas Jawatankuasa-Jawatankuasa Syariah yang terdapat di institusi-institusi kewangan lain hendaklah terhad kepada menasihat institusi-institusi yang melantiknya sahaja. Keputusan muktamad mengenai sesuatu masalah hendaklah dibuat oleh Jawatankasa Syariah Bank Negara sahaja. Ini perlu untuk mengelak keputusan-keputusan yang bercanggah mengenai sesuatu perkara.)

Ketiga, tidak ada kemungkinan Bank Negara akan menjadi salah satu pihak dalam sesuatu kes, seperti Majlis Agama Islam, yang akan memungkinkan keputusan jawatankuasa itu dipersoalkan mengenai ketelusannya.

Keempat, ahli-ahli jawatankuasa itu, pada masa ini pun, terdiri daripada Mufti-Mufti, Bekas Ketua Hakim Syarie, “bankers” dan ahli-ahli ekonomi dan akademik. Mereka adalah perintis perbankan Islam dan takaful di Malaysia.

Saya percaya, pada masa ini, sebagai satu badan, jawatankuasa itu lebih arif dalam perbankan Islam dan takaful di Malaysia. Tetapi, jika tugas baru itu hendak diberi kepadanya, jawatankuasa itu patutlah diperbesarkan dengan memasuki hakim mahkamah sivil dan peguam sivil, kedua-duanya yang mengetahui sedikit sebanyak hukum syarak dan sistem kewangan Islam dan takaful. Mereka ini perlu kerana merekalah yang terlibat secara langsung dalam kes-kes itu. Peguam sivil terlibat daripada menggubal (“drafting”) perjanjian-perjanjian hinggalah kepada memberi nasihat kepada anakguamnya apabila timbul sesuatu masalah, menggubal pliding dan menghujahkan kes di mahkamah. Hakim-hakim mahkamah sivil membicarakan kes, termasuk mendengar keteragan, meneliti dokumen-dokumen, mendengar hujah, meneliti undang-undang, membuat keputusan dan menulis alasan penghakiman. Pada pandangan saya, adalah baik jika jawatankuasa itu turut dianggotai oleh hakim mahkamah sivil. Bekas Ketua Hakim Syarie sudah ada. Adalah lebih seimbang jika hakim mahkamah sivil juga ada, apatah lagi yang membicarakan kes-kes itu adalah mahkamah sivil, bukan mahkamah syariah. Lagi pula, jika keputusan yang diberi oleh jawatankuasa itu hendak dijadikan mengikat (“binding”) mahkamah sivil, eloklah ada seorang hakim mahkamah sivil dalam jawatankuasa itu.

Saya juga berpendapat bahawa tidak ada “salahnya” seorang hakim mahkamah sivil menganggotai jawatankuasa itu. Pada masa ini pun ada hakim mahkamah sivil yang menjadi anggota Jawatankuasa Teknikal Undang-Undang Syarak dan Sivil di peringat kebangsaan dan Negeri. Hakim-Hakim mahkamah sivil juga menjadi Pengerusi Lembaga Sewa, Pengerusi Lembaga Tatatertib Peguam-Peguam malah pada suatu masa dahulu Pengerusi, Tribunal Perkhidmatan Awam.

Patutkah keputusan jawatankuasa itu mengikat mahkamah sivil? Mungkin ada orang-orang yang akan menentang peruntukan bahawa keputusan jawatankuasa itu akan mengikat mahkamah atas alasan bahawa mahkamah adalah penentu terakhir sesuatu undang-undang. Pada pandangan saya mereka patut terima hakikat bahawa persoalan berkenaan adalah persoalan hukum syarak yang mereka sendiri tidak boleh membuat penentuan seperti mereka membuat penentuan apakahkah “common law of England” dalam sesuatu perkara. Mereka patut menerima hakikat bahawa hukum syarak tidak boleh “ditafsirkan” dengan memakai prinsip-prinsip “common law” mengenai tafsiran undang-undang. Mereka juga patut menerima hakikat bahawa hukum syarak adalah berhubung rapat dengan soal haram-halal dan dosa-pahala.

Pada pandangan saya, demi kepastian undang-undang dan untuk mengelak orang-orang yang tidak atau kurang arif dalam bidang itu membuat keputusan mengenainya, keputusan jawatankuasa itu patutlah mengikat mahkamah dan tidak boleh dipersoalkan di mana-mana mahkamah dengan apa cara juga pun termasuk semakan kehakiman (“judicial review”). Jika tidak, tujuan merujuk persoalan itu kepada jawatankuasa itu atau sendiri tidak akan memberi apa-apa makna.

Perlu disebut bahawa pada masa ini pun ada peruntukan dalam Enakmen-Enakmen Pertadbiran Undang-Undang Islam yang membolehkan Mahkamah Tinggi mengemukakan persoalan-persoalan hukum syarak untuk dijawab oleh Jawatankuasa Syariah. Rujukan seperti itu pernah dibuat  dalam kes Dalip Kaur v. Pegwai Polis Daerah, Balai Polis Daerah , Bukit Mertajam & Anor. (1992) 1 MLJ 1, satu kes murtad. Keputusan Jawatankuasa Syariah itu diterima oleh Mahkamah Tinggi dan juga Mahkamah Agung. Peguam-peguam yang mewakili pihak yang bukan Islam dalam kes itu juga menerima keputusan mengenai hukum syarak yang diberi oleh jawatankuasa itu dalam kes itu.

Jadi, apa yang perlu dilakukan hanyalah mengadakan peruntukan yang serupa dalam undang-undang yang berkenaan.

Bagaimana permohonan untuk mendapat keputusan jawatankuasa itu akan dibuat? Dalam suatu tindakan melalui writ atau saman, pembelaan itu, jika hendak dibangkitkan kena dan akan dibangkitkan dalam pliding (pernyataan pembelaan). Dalam permohonan lain seperti saman pemula (“originating summons”) ia kena dan akan dibangitkan dalam affidavit balasan. Dalam kesemua prosiding itu, kewujudan persoalan itu, jika ada, akan diketahui dari awal-awal lagi. Maka, sebelum perbicaraan bermula, malah di peringkat pengurusan kes (“case management”), hakim, dengan bantuan dan/atau persetujuan peguam kedua belah pihak telah boleh merangka fakta dan persoalan yang hendak dikemukakan dan mengemukakannya untuk mendapat keputusan (“ruling”).

Perlukah peguam-peguam diberi kebenaran hadir di hadapan jawatankuasa itu untuk menyampaikan hujah-hujah mereka? Pada pandangan saya tidak. Kerana, pertama, ia akan melambatkan lagi proses mendapat keputusan (“ruling”) itu disebabkan oleh penangguhan kerana tarikh-tarikh yang ditetapkan oleh jawatankuasa itu tidak sesuai dengan peguam-peguam dan sebagainya.

Kedua, kerana ia akan mengubah prosiding di hadapan jawatankuasa itu menjadi satu “perbicaraan” pula.

Ketiga, rujukan itu adalah rujukan oleh mahkamah, bukan oleh salah satu atau kedua-dua pihak dalam kes itu.

Kesimpulan

Saya berpendapat bahawa cadangan mewujudkan Bahagian Muamalat Mahkamah Tinggi adalah satu cadangan yang baik dan boleh dilaksanakan, buat permulaan, secara terhad seperti yang disebut di atas. Untuk memutuskan persoalan-persoalan hukum syarak mengenai perbankan Islam dan takaful, persoalan-persoalan itu eloklah di rujuk kepada Jawatankuasa Syariah Bank Negara yang diperbesarkan keahliannya.

Akhir kata

Saya akhiri dengan memetik kata-kata Imam Abu Hanifah yang bermaksud lebih kurang: “Apa yang saya katakanan ini hanyalah pendapat saya. Jika ada hujah yang lebih baik, ikutlah.”

9.2.2002

MOHD TAUFIQ MANI ABDULLAH lwn. PP
MAHKAMAH RAYUAN, KUALA LUMPUR
ABDUL HAMID MOHAMAD, HMR; K C VOHRAH, HMR; FAIZA THAMBY CHIK, H
RAYUAN JENAYAH NO: R-05-4-94
21 JANUARI 2002
[2002] 1 CLJ 558
PROSEDUR JENAYAH: Rayuan – Rayuan terhadap sabitan dan hukuman – Sabitan mengedar dadah berbahaya 2,808.8 gram cannabis di bawah s. 39B(1)(a) Akta Dadah Berbahaya 1952 dengan hukuman mati mandatori di bawah s. 39B(2) Akta yang sama – Sama ada hakim perbicaraan telah tersalah arah kerana memakai kedua-dua anggapan di bawah s. 37(d) dan (da) untuk membuktikan pengedaran dadah tersebut – Sama ada proviso kepada s. 60 Akta Mahkamah Kehakiman 1964 terpakai untuk membolehkan mahkamah mengesahkan sabitan dan hukuman perayu oleh hakim perbicaraan

UNDANG-UNDANG JENAYAH: Akta Dadah Berbahaya 1952 – Seksyen 39B(1)(a) – Pengedaran dadah – Sama ada kedua-dua anggapan di bawah s. 37(d) & (da) terpakai untuk membuktikan pengedaran dadah – Muhammed Hassan v. PP – Haryadi Dadeh v. PP – Tunde Apatira & Ors v. PP

Ini adalah rayuan tertuduh (‘perayu’) terhadap sabitan mengedar dadah berbahaya 2,808.8 gram cannabis di bawah s. 39B(1)(a) Akta Dadah Berbahaya 1952 (‘Akta’) dan juga terhadap hukuman mati mandatori yang dijatuhkan di bawah s. 39B(2) Akta oleh hakim perbicaraan.
Isu-isunya adalah: (1) sama ada hakim perbicaraan tersalah arah memakai kedua-dua anggapan di bawah s. 37(d) dan (da) Akta untuk membuktikan pengedaran dadah tersebut; dan (2) sama ada proviso kepada s. 60 Akta Mahkamah Kehakiman 1964 terpakai untuk membolehkan mahkamah mengesahkan sabitan dan hukuman perayu tersebut oleh hakim perbicaraan.
Diputuskan:
Oleh Abdul Hamid Mohamad HMR
[1] Kes-kes Muhammed Hassan v. PP, Haryadi Dadeh v. PP dan Tunda Apatira & Ors v. PP adalah penghakiman Mahkamah Persekutuan yang mengikat mahkamah ini. Tidak boleh dinafikan bahawa hakim perbicaraan telah memakai kedua-dua anggapan di bawah s. 37(d) dan (da) Akta untuk memanggil perayu membela diri atas pertuduhan mengedar. Ini adalah satu salah arah (‘misdirection’). (ms 563 c-e)
[2] Keterangan dalam kes-kes Muhammed bin Hassan v. PP dan Haryadi Dadeh v. PP adalah lebih kuat daripada keterangan dalam kes ini. Walaupun fakta kes ini lebih menyerupai fakta dalam kes Muhammed Hassan v. PP, bezanya ialah apabila perayu ternampak PW4 (seorang anggota Unit Pencegah Penyeludupan), ia tidak terus lari dan tidak melepaskan bungkusan yang dibawanya. Sebaliknya, apabila PW4 meminta untuk memeriksa beg plastik yang dibawanya, dia menyerahkannya kepada PW4. Juga, dalam beg plastik itu terdapat banyak barang-barang lain. Dalam keadaan itu, tanpa melihat dan mendengar saksi-saksi, tanpa penemuan mengenai milikan positif oleh hakim perbicaraan, adalah tidak selamat bagi mahkamah di peringkat rayuan ini untuk memutuskan secara positif bahawa perayu memiliki dadah tersebut untuk membolehkan anggapan di bawah s. 37(da) dipakai. (ms 565 a-d)
Dilaporkan oleh Usha Thiagarajah

Case(s) referred to:
Haryadi Dadeh v. PP [2000] 3 CLJ 553 (diikuti)
Muhammed Hassan v. PP [1998] 2 CLJ 170 (diikuti)
Tunde Apatira & Ors v. PP [2001] 1 CLJ 381 (diikuti)
Courts of Judicature Act 1964, s. 60
Dangerous Drugs Act 1952, ss. 2, 6, 37(d), (da), 39A(2), 39B(1)(a), 39B2

Counsel:
Bagi pihak perayu – V Rajadevan (V Dhanaraj); M/s Rajadevan & Assoc
Bagi pihak responden – Siti Salwa Musa TPR

PENGHAKIMAN
Abdul Hamid Mohamad HMR:
Perayu telah dituduh atas kesalahan mengedar dadah berbahaya, iaitu 2,808.8 gram cannabis, suatu kesalahan di bawah s. 39B(1)(a) Akta Dadah Berbahaya 1952 yang boleh dihukum di bawah s. 39B(2) Akta yang sama.
Mahkamah Tinggi telah mendapatinya bersalah, mensabitkannya dan menjatuhkan hukuman mati mandatori.
Perayu merayu ke mahkamah ini. Mahkamah ini telah membenarkan rayuannya, mengenepikan sabitan dan hukuman yang dibuat oleh Mahkamah Tinggi itu dan mensabitkan perayu di bawah s. 6 Akta Dadah Berbahaya 1952 dan mengenakan hukuman penjara selama 15 tahun mulai tarikh dia ditangkap dan sepuluh kali sebatan, mengikut s. 39A(2) Akta yang sama.
Fakta kes ini bolehlah diringkaskan seperti berikut:
Pada hari kejadian iaitu pada 11 Januari 1993, lebih kurang pukul 10 pagi, PW4, seorang anggota Unit Pencegah Penyeludupan (UPP) sedang menjalankan tugas rondaannya di Seksyen D6, Jalan Sadao, Padang Besar. Pada ketika itu beliau ternampak perayu keluar dari Pekan Siam menuju ke gerai buah-buahan di pasar Padang Besar. Apabila sampai di gerai itu, perayu bertanya dengan penjaja-penjaja di situ di mana stesyen teksi. Salah seorang penjaja di situ menunjukkan arah stesyen teksi kepada perayu. Kebetulan pada masa itu datang sebuah teksi berwarna hitam di gerai itu. Pemandu teksi itu (PW5) adalah juga tuan punya gerai tersebut.
PW4, yang pada masa itu berada di belakang gerai tersebut, mendengar perayu bertanya PW5 sekiranya teksinya hendak pergi ke Alor Setar. PW5 memberitahu perayu supaya menunggu sebentar sementara dia hendak mengeluarkan barang-barang dari boot keretanya. Perayu pergi ke gerai buah-buahan untuk membeli buah limau. Apabila perayu kembali semula ke tempat teksi itu, PW4 nampak perayu membawa satu beg plastik berwarna putih (P5) dengan tangan kanannya. PW4 yang berpakaian seragam menghampiri perayu dan meminta untuk memeriksa beg plastik (P5) itu. Perayu menyerahkan beg plastik itu kepada PW4 untuk diperiksa. Di dalam beg plastk itu, PW4 dapati satu beg plastik mengandungi baju tidur kanak-kanak (P14), satu beg plastik mengandungi dua keping poster (P15), sejambak bunga plastik (P13), buah limau dan satu kotak serbuk sabun “Breeze” (Thailand) (P6).
Apabila PW4 mengangkat keluar P6 dari dalam beg plastik (P5) beliau dapati serbuk sabun bertaburan dari bahagian bawah. PW4 terbalikkan kotak serbuk sabun (P6) itu dan mendapati bahagian bawahnya sudah terbuka. Beliau terus membuka P6 dan di dalamnya didapati serbuk sabun dan tiga bungkusan berwarna kuning (P8, P9, P10). Beliau berasa curiga dan mengeluarkan P8, P9 dan P10 dari P6. Selepas itu PW4 meminta kad pengenalan perayu. Ketika itu mengikut PW4, perayu menggigil dan cuba hendak melarikan diri.
Selepas itu PW4 memanggil Sgt. Mohd. Nor (PW6). Perayu dan barang-barang itu dibawa ke balai polis, Padang Besar dengan sebuah Land Rover. Di balai polis Padang Besar PW4 memeriksa P8, P9 dan P10 dan beliau dapati bungkusan-bungkusan itu mengandungi daun-daun kering yang disyaki ganja.
Pemandu teksi (PW5) turut memberi keterangan. Katanya perayu hendak menyewa teksinya untuk ke Alor Setar dan sanggup membayar tambang yang lebih dari biasa. Mengikutnya perayu hendak pergi seorang sahaja dan hendak bertolak dengan serta merta. Beliau merasa “was-was” (curiga) kerana perayu hendak memberi tambang yang lebih dari biasa. Pada masa itu, PW5 nampak PW4 membawa P5 (beg plastik) dengan tangan kanannya. PW5 juga nampak PW4 yang berpakaian seragam berada berhampiran di situ. PW5 juga melihat PW4 memeriksa beg plastik perayu (P5) sebelum dia (PW5) membawa perayu ke teksinya. Keterangannya mengenai barang-barang yang dijumpai dalam beg plastik (P5) itu serupa dengan keterangan PW4 dan tidaklah perlu diulangi.
Keterangan Ahli Kimia (PW1) mengesahkan bahawa ketiga-tiga bungkusan (P8, P9 dan P10) mengandungi 2,808.8 gram cannabis iaitu dadah berbahaya seperti yang ditakrifkan mengikut s. 2 Akta Dadah Berbahaya 1952. Hakim perbicaraan itu mendapati bahawa barang-barang kes itu telah dijaga dengan rapi dan “tidak terdapat sebarang kelonggaran” dalam rantaian keterangan mengenai barang-barang kes itu.
Di sini eloklah dipetik penghakiman hakim perbicaraan itu untuk mengetahui alasan beliau memanggil perayu membela diri atas pertuduhan mengedar itu:
Di akhir kes Pendakwa setelah saya memberi penilaian yang secukupnya dan pada kadar yang paling maksima kepada keterangan saksi-saksi Pendakwa saya berpuas hati bahawa Pendakwa telah berjaya membuktikan satu kes prima facie terhadap Tertuduh (Khoo Hi Chiang v. PP [1994] 2 CLJ 151) dan justeru itu saya memanggil Tertuduh membela diri.
Jika penelitian yang sewajarnya diberi kepada keterangan-keterangan PW4 dan PW5 adalah didapati apa yang mereka bentangkan di Mahkamah melalui keterangan mereka bukanlah satu cerita yang mustahil. Umpamanya kedua-dua mereka pasti bahawa Tertuduh membawa dadah tersebut (P8, P9, P10) dengan tangan kanannya. Mereka juga pasti bahawa semasa pemeriksaan dijalankan ke atas dadah tersebut, Tertuduh menggigil dan cuba melarikan diri. Kedua-dua saksi ini didedahkan kepada soalbalas yang begitu keras dan panjang lebar oleh peguam Tertuduh tetapi keterangan mereka langsung tidak tercabar.
Dari keterangan PW4 dan PW5 saya berpuas hati bahawa anggapan-anggapan statutori di bawah s 37(d) dan (da) Akta Dadah Berbahaya 1952 tertimbul terhadap Tertuduh. Jelas bahawa dadah tersebut berada dalam jagaan dan kawalan beliau.
Mengambil kira persoalan yang ditimbulkan dalam hujah kedua-dua belah pihak di mahkamah ini, tidaklah perlu diperturunkan keterangan perayu. Memadailah sekadar menyatakan bahawa hakim perbicaraan mendapati pembelaan perayu adalah penafian semata-mata tanpa sebarang bukti yang boleh menimbulkan keraguan ke atas kes Pendakwa. “Cerita tertuduh tidak lain tidak bukan hanyalah rekaan semata-mata”, kata hakim perbicaraan itu. Hakim perbicaraan menyimpulkan keputusannya seperti berikut:
Setelah saya menimbang keseluruhan keterangan yang ada saya dapati Pendakwa telah membuktikan kesnya tanpa sebarang keraguan munasabah. Keterangan Tertuduh gagal menimbulkan sebarang keraguan ke atas kesahihan kes Pendakwa. Tertuduh juga gagal mematahkan anggapan-anggapan statutori yang timbul terhadapnya di atas imbangan kebarangkalian.
Di mahkamah ini hujah peguam perayu tertumpu kepada persoalan bahawa hakim perbicaraan telah tidak membuat keputusan yang positif berdasarkan keterangan mengenai milikan (possession) tetapi telah memakai kedua-dua anggapan (presumption) di bawah s. 37(d) dan 37(da) dan memutuskan:
Jelas bahawa dadah tersebut berada dalam jagaan dan kawalan beliau.
dan memanggil perayu membela diri atas pertuduhan “mengedar”. Beliau merujuk kepada kes-kes Muhammed bin Hassan v. Public Prosecutor [1998] 2 CLJ 170 (MP) dan Tunde Apatira & 2 Ors. v. Pendakwa Raya [2001] 1 AMR 577 (MP).
Timbalan Pendakwa Raya mengakui bahawa hakim perbicaraan telah memakai kedua-dua anggapan itu dalam kes ini. Tetapi, beliau menghujahkan bahawa tiada ketidakadilan substantif yang telah berlaku dan kes ini telah diputuskan sebelum kes Muhammed bin Hassan. Oleh itu, beliau meminta mahkamah ini menimbang keterangan yang dikemukakan dan menghujahkan bahawa keterangan adalah cukup untuk mendapati bahawa perayu memiliki (was in possession) dadah tersebut, terutama sekali mengambil kira bahawa dia memegang beg yang berisi dadah itu dan juga cuba melarikan diri.
Muhammad bin Hassan adalah penghakiman Mahkamah Persekutuan dan mengikat mahkamah ini. Dalam kes itu Chong Siew Fai, HB (Sabah dan Sarawak), menulis penghakiman mahkamah itu, antara lain mengatakan:
In our view, to constitute ‘possession’ under section 37(da) of the Act, so as to be capable of forming one of the ingredients thereunder thereby giving rise to the presumption of trafficking, there must be an express affirmative finding (as opposed to legal presumption) of possession as understood in criminal law, based on evidence.
Dalam kes Haryadi bin Dadeh v. Public Prosecutor [2000] 3 CLJ 553 (MP) beliau menjelaskan:
The ratio decided in Muhammed bin Hassan, is clear. One cannot rely on the presumption of possession under s. 37(d) of the Act to invoke a further presumption of trafficking under s. 37(da) of the Act.
Dalam kes Tunde Apatira Mahkamah Persekutuan yang bersidang dengan lima orang hakim mengesahkan bahawa Muhammed bin Hassan telah diputuskan dengan betul. Antara lain mahkamah itu memutuskan:
Held
1(a) Muhammed bin Hassan was correctly decided. Paragraph (da) of s. 37 of the DDA is differently constructed from paragraph (d) of that section and must therefore carry a different meaning. As the DDA is a penal statute, any ambiguity in language should be decided in favour of the accused. (See p. 585 lines 16-25)
(b) In addition, there must be certainty in law which cannot be achieved if the courts keep departing from recent decisions. If the court were to depart from Muhammed bin Hassan, the law will be thrown into uncertainty and doubts would be cast on the accuracy of the pronouncements made in the cases that have followed Muhammed bin Hassan. (See p. 584 line 30 p 585 line 14)
Ketiga-tiga kes itu adalah penghakiman Mahkamah Persekutuan yang mengikat mahkamah ini. Maka, mengenai undang-undang tiada apa lagi yang boleh dikatakan oleh mahkamah ini.
Juga, dalam kes ini, seperti diakui sendiri oleh Timbalan Pendakwa Raya, tidak boleh dinafikan bahawa hakim perbicaraan telah memakai kedua-dua anggapan itu untuk memanggil perayu membela diri atas pertuduhan mengedar. Itu adalah satu salah arah (misdirection).
Maka, persoalan yang tinggal ialah sama ada mahkamah ini patut dalam keadaan kes ini memakai proviso kepada s. 60 Akta Mahkamah Kehakiman 1964 itu dan setelah menimbang fakta kes ini, mengesahkan sabitan atas pertuduhan mengedar itu.
Bahawa mahkamah ini mempunyai kuasa untuk memakai peruntukan proviso kepada s. 60 Akta Mahkamah Kehakiman 1964 itu tidak boleh dipertikaikan.
Ini disahkan oleh Mahkamah Persekutuan, dan dilakukan, dalam kes Tunde Apatira itu sendiri. Mahkamah itu, melalui penghakiman yang disampaikan oleh Gopal Sri Ram JCA, berkata di halaman 588:
… As a general rule this court will, in the normal course of events, quash a conviction where there has been a misdirection. Exceptionally, a conviction will be upheld despite a misdirection where this court is satisfied that a reasonable tribunal would have convicted the accused on the available evidence on a proper direction. The decision of this court in Alcontara a/l Ambross Anthony v. Public Prosecutor [1996] 1 CLJ 705 exemplifies the general rule, while that in Khoo Hi Chiang v. Public Prosecutor [1994] 2 CLJ 151 illustrates the exception.
Setelah menimbang fakta kes itu, mahkamah itu memutuskan:
Having scrutinised the record with care, we are satisfied that this is an appropriate case for the application of the proviso. The evidence, both direct and circumstantial, against the appellants is entirely overwhelming. A court applying s. 37(da) in the manner required by Muhammed bin Hassan would have nevertheless convicted the appellants on the available evidence.
Perlu diambil perhatian bahawa dalam kes Tunde Apatira itu, dadah heroin itu dijumpai dalam peket di dalam perut tertuduh. Ertinya tertuduh telah menelan peket-peket dadah itu. Kami tidak fikir akan terdapat satu kes di mana keterangannya lebih “overwhelming” dari itu dan tidak hairanlah mahkamah itu membuat keputusan sedemikian.
Sebaliknya, dalam kes Haryadi bin Dadeh, perayu (tertuduh) dilihat sedang menggulung ganja sambil duduk bersila dengan sebuah periuk aluminium berisi daun-daun ganja di atas pahanya dalam sebuah bangsal. Setelah melihat anggota polis, tertuduh serta merta bangun dan lari ke dalam kedai. Tertuduh kemudian lari keluar semula dan merempuh dinding bilik air di luar sambil dikejar oleh anggota polis tersebut. Tertuduh akhirnya berjaya ditangkap. Penggeledahan dibuat kepada bilik air itu dan satu bungkusan mengandungi 600 golong ganja dijumpai di suatu sudut dan satu bungkusan mengandungi satu ketul (slab) ganja dijumpai di bawah lampu. Dengan keterangan sedemikian pun Mahkamah Persekutuan enggan memakai proviso berkenaan.
Perlu diambil perhatian juga bahawa dalam kes Muhammed bin Hassan pun hujah yang serupa telah dikemukakan. Dalam kes itu anggota-anggota polis yang sedang meronda di suatu lorong bertemu dengan perayu (tertuduh) yang sedang membawa satu bungkusan dengan tangan kanannya. Anggota polis itu memperkenalkan dirinya. Perayu (tertuduh) lari, dan semasa berbuat demikian, melepaskan bungkusan yang dibawanya itu. Anggota polis itu bertindak menghalangnya daripada melepaskan diri, menyebabkan satu pergelutan telah berlaku. Akhirnya tertuduh berjaya ditangkap. Dalam bungkusan itu terdapat dua bungkusan yang lebih kecil mengandungi ganja.
Dengan keterangan sedemikian pun Mahkamah Persekutuan masih enggan memakai proviso itu. Inilah apa yang dikatakan oleh Chong Siew Fai (HB Sabah dan Sarawak) yang menyampaikan penghakiman mahkamah itu.
As regards the alternative submission of the learned deputy public prosecutor that, independently of s. 37(d), there was sufficient evidence of possession of the cannabis on the part of the appellant, all we need to say is that on the evidence, the learned trial judge did not make a finding of possession (ie possession as understood in criminal law) either factually or by way of inference. We, at the appellate stage, not having had the opportunity of observing the witnesses in giving evidence, did not consider it appropriate and safe to arrive at any conclusion in this regard.
Keterangan dalam kes Haryadi bin Dadeh dan kes Muhammed bin Hassan adalah lebih kuat daripada keterangan dalam kes ini. Walau pun fakta kes ini lebih menyerupai fakta dalam kes Muhammed bin Hassan, bezanya ialah, apabila ternampak PW4, perayu (tertuduh) tidak terus lari, dia tidak melepaskan bungkusan yang dibawanya. Sebaliknya, apabila PW4 meminta untuk memeriksa beg plastik yang dibawanya dia (perayu) menyerahkannya kepada PW4. Juga, dalam beg plastik itu terdapat banyak barang-barang lain.
Dalam keadaan itu, tanpa melihat dan mendengar saksi-saksi, tanpa penemuan mengenai milikan secara positif oleh hakim perbicaraan, kami berpendapat adalah tidak selamat bagi mahkamah ini, diperingkat rayuan, untuk memutuskan secara positif bahawa perayu mempunyai milikan dadah tersebut untuk membolehkan anggapan di bawah s. 37(da) dipakai dan dia dipanggil membela diri atas tuduhan mengedar. Atas alasan inilah kami menggantikan sabitan dan hukuman seperti yang disebut di awal alasan penghakiman ini.

MAHKAMAH RAYUAN, KUALA LUMPUR
ABDUL HAMID MOHAMAD, HMR; K C VOHRAH, HMR; FAIZA THAMBY CHIK, H
RAYUAN JENAYAH NO: C-05-81-1995
[2002] 1 CLJ 553

PROSEDUR JENAYAH: Rayuan – Rayuan terhadap sabitan dan hukuman – Sabitan mengedar dadah berbahaya 47.834 gram heroin di bawah s. 39B(1)(a) Akta Dadah Berbahaya 1952 dengan hukuman mati mandatori di bawah s. 39B(2) Akta yang sama – Sama ada hakim perbicaraan telah tersalah arah kerana memakai kedua-dua anggapan di bawah s. 37(d) & (da) untuk membuktikan pengedaran dadah tersebut – Sama ada proviso kepada s. 60 Akta Mahkamah Kehakiman 1964 terpakai untuk membolehkan mahkamah mengesahkan sabitan dan hukuman perayu oleh hakim perbicaraan

UNDANG-UNDANG JENAYAH: Akta Dadah Berbahaya 1952 – Seksyen 39B(1)(a) – Pengedaran dadah – Sama ada kedua-dua anggapan di bawah s. 37(d) & (da) boleh dipakai untuk membuktikan pengedaran dadah – Muhammed Hassan v. PP – Haryadi Dadeh v. PP – Tunde Apatira & Ors v. PP – Mohd Taufiq Mani Abdullah lwn. PP – Tan Teck Chew v. PP

Ini adalah rayuan tertuduh (‘perayu’) terhadap sabitannya mengedar dadah berbahaya 47.834 gram heroin di bawah s. 39(B)(1)(a) Akta Dadah Berbahaya 1952 (‘Akta’) dan juga terhadap hukuman mati mandatori yang dijatuhkan di bawah s. 39B Akta oleh hakim perbicaraan.
Isu-isunya adalah: (1) sama ada hakim perbicaraan telah tersalah arah kerana memakai kedua-dua anggapan di bawah s. 37(d) dan (da) Akta untuk membuktikan pengedaran dadah tersebut; (2) sama ada proviso kepada s. 60 Akta Mahkamah Kehakiman 1964 terpakai untuk membolehkan mahkamah mengesahkan sabitan dan hukuman perayu oleh hakim perbicaraan.
Diputuskan:
Oleh Abdul Hamid Mohamad HMR
[1] Kedua-dua anggapan di bawah s. 37(d) dan (da) Akta tidak boleh dipakai bersama untuk membuktikan pengedaran, seperti yang telah diputuskan oleh Mahkamah Persekutuan dalam kes-kes Muhammed Hassan v. PP dan Tunde Apatira & Ors v. PP. (ms 556 g)
[2] Dadah tersebut yang dijumpai dalam kereta yang dipandu oleh perayu ialah satu bungkusan plastik yang berada di tempat duduk hadapan sebelah kiri kereta itu dan satu bungkusan lagi dalam poket seluar perayu yang hanya seberat 3.051 gram. Tanpa keputusan mengenai milikan dadah yang dijumpai di atas tempat duduk kereta itu, anggapan di bawah s. 37(da) tidak boleh berbangkit. Di bandingkan dengan fakta dalam kes Tunde Apatira & Ors v. PP di mana dadah berkenaan dijumpai dalam perut tertuduh, dan mengambil kira fakta dalam kes Muhammed Hassan v. PP dan Haryadi Dadeh v. PP di mana Mahkamah Persekutuan enggan memakai proviso kepada s. 60 Akta Mahkamah Penghakiman 1964, kes ini bukanlah satu kes yang membolehkan mahkamah di peringkat rayuan ini untuk mengatakan dengan yakinnya bahawa jika hakim perbicaraan telah menimbangkan keterangan yang dikemukakan, beliau juga akan memutuskan dengan positifnya bahawa perayu memiliki dadah yang terletak di atas tempat duduk hadapan sebelah kiri kereta yang dipandunya itu. Atas alasan ini, mahkamah enggan memakai proviso tersebut. (ms 557 b-e)
Dilaporkan oleh Usha Thiagarajah

Case(s) referred to:
Haryadi Dadeh v. PP [2000] 3 CLJ 553 (diikuti)
Mohd Taufiq Mani Abdullah v. PP [2002] 1 CLJ 558 (diikuti)
Muhammed Hassan v. PP [1998] 2 CLJ 170 (diikuti)
Tan Teck Chew v. PP (Criminal Appeal No: C-05-5-97) (diikuti)
Tunde Apatira & Ors v. PP [2001] 1 CLJ 381 (diikuti)

Legislation referred to:
Courts of Judicature Act 1964, s. 60
Dangerous Drugs Act 1952, ss. 12(2), 37(d), (da), 39A(1), B(1)(a), (2)
Counsel:
Bagi pihak perayu – Hj Sukri Hj Mohamed; T/n Wan Haron Sukri & Nordin
Bagi pihak responden – Abdul Rashid TPR

PENGHAKIMAN
Abdul Hamid Mohamad HMR:
Perayu telah dituduh kerana mengedar dadah berbahaya iaitu 47.834 gram heroin di bawah s. 39B(1)(a) Akta Dadah Berbahaya 1952, didapati bersalah, disabitkan dan dijatuhkan hukuman mati mandatori mengikut s. 39B(2) Akta yang sama. Perayu merayu ke mahkamah ini. Kami membenarkan rayuannya, mensabitkannya di bawah s. 12(2) Akta itu, dibaca bersama s. 39A(1) Akta yang sama, dan menjatuhkan hukuman penjara selama lima tahun daripada tarikh disabitkan oleh Mahkamah Tinggi dan tiga kali sebatan rotan.
Fakta kes pendakwaan telah diringkas oleh hakim perbicaraan seperti berikut:
Pada 21.8.90 satu pasukan polis terdiri daripada 12 anggota yang diketuai oleh K/Insp. Mazlan bin Azid (SP5) telah menjalankan satu serang hendap di kawasan Taman Tunas Jaya Fasa II, Jalan Hj. Ahmad, Kuantan, Pahang. Apabila sampai di tempat serang hendap mereka telah mengambil kedudukan masing-masing sepertimana yang telah diarahkan oleh SP5. Mengikut keterangan SP5, pada jam lebih kurang 9.50 malam, beliau telah nampak sebuah kereta jenis Toyota No. DN 8912 telah datang dari arah Jalan No. 11 menuju ke tempat beliau berada dengan lajunya. Pada masa itu tidak ada apa-apa tindakan diambil.
Kereta yang berkenaan dikatakan telah menuju masuk ke kawasan perumahan Taman Tunas Jaya FASA II. Sepuluh minit kemudian kereta tersebut telah kelihatan datang dari arah Jalan No.11 menuju ke tempat SP5 dan anggota-anggotanya sedang berada. SP5 telah mengarahkan pemandu-pemandu yang terlibat untuk bersedia. Kereta tersebut akhirnya telah ditahan di simpang tiga, Jalan No.9 dan No.11 oleh kereta-kereta yang dipandu oleh D/Kpl. Roslan dan D/Kpl Raja Badri. SP5 bersama anggota-anggotanya telah menyerbu ke arah kereta tersebut dan mengikut keterangan SP5, beliau telah pergi ke bahagian pemandu kereta dan beliau mendapati ada seorang lelaki Cina di dalam kereta di tempat pemandu. Seterusnya SP5 telah menunjukkan kad kuasa dan memperkenalkan dirinya sebagai pegawai polis. Pada masa yang sama juga, SP5 menyatakan bahawa beliau telah nampak satu bungkusan plastik berwarna merah (P6) yang berada di atas tempat duduk hadapan sebelah kiri pemandu. Seterusnya SP5 telah mengarahkan lelaki itu membuka pintu dan mematikan enjin kereta tersebut. Kemudiannya, SP5 telah mengarahkan lelaki itu mengambil bungkusan plastik warna merah yang terletak di atas kerusi hadapan kiri kereta dan menyerahkannya kepada SP5. SP5 seterusnya mengambil bungkusan itu dan membawanya ke bahagian depan kereta DN 8912 bersama-sama dengan lelaki Cina tersebut. Bungkusan itu kemudiannya telah dibuka di hadapan lelaki itu dan apabila dibuka di dalamnya terdapat satu bungkusan surat khabar Cina yang di dalamnya terdapat 2 bungkusan plastik besar warna jernih yang mengandungi serbuk ketulan warna kemerahan yang disyaki dadah heroin. Selepas itu SP5 telah menjalankan pemeriksaan ke atas badan lelaki itu dan telah menjumpai satu bungkusan plastik warna jernih di dalam poket seluar sebelah kanan hadapan. Di dalam bungkusan itu didapati 4 paket plastik kecil warna jernih (P15A D) yang mengandungi serbuk ketulan warna coklat muda yang disyaki dadah heroin. Lelaki Cina itu kemudiannya telah ditangkap dan didapati namanya Chan Kheng Nam.
Dalam alasan penghakimannya, semasa menimbang kes pendakwaan, hakim perbicaraan itu memutuskan seperti berikut:
Berdasarkan kepada keseluruhan keadaan yang saya nyatakan di atas, saya berpendapat bahawa tertuduh mempunyai jagaan atau kawalan ke atas beg P6 yang dijumpai di dalam keretanya itu. Dengan itu anggapan di bawah sek. 37(d) Akta adalah terpakai dan tertuduh dianggap mengetahui tentang jenis dadah itu (the nature of such drug). Seterusnya, memandangkan jumlah berat heroin yang terlibat adalah melebihi 15 gram maka anggapan di bawah sek. 37 (da)(i) Akta adalah terpakai. Dengan demikian tertuduh adalah dianggap mengedar dadah tersebut.
Hujah peguam perayu hanya tertumpu kepada satu persoalan sahaja, iaitu hakim perbicaraan telah salah arah kerana memakai kedua-dua anggapan (presumption) di bawah s. 37(d) dan (da), Akta itu.
Timbalan Pendakwa Raya mengakui hakikat itu tetapi meminta mahkamah ini memakai proviso kepada s. 60 Akta Mahkamah Kehakiman 1964, menimbang keterangan dan memutuskan bahawa, jika hakim perbicaraan telah menimbang keterangan yang dikemukakan oleh pendakwaan beliau semestinya akan mendapati bahawa terdapat cukup keterangan bahawa perayu (tertuduh) memiliki dadah tersebut. Ini akan membolehkan hakim perbicaraan itu memakai anggapan (da) dan memanggil perayu membela diri atas pertuduhan mengedar.
Kami telah membincang persoalan undang-undang ini dengan panjang lebar dalam kes Mohd. Taufiq b. Abdullah v. Pendakwa Raya, Mahkamah Rayuan, Rayuan Jenayah No. R-05-4-94 dan kes Tan Teck Chew v. Pendakwa Raya Mahkamah Rayuan, Rayuan Jenayah No. C-05-5-97 yang kami dengar di persidangan yang sama. Tidaklah perlu bagi kami mengulanginya. Ringkasnya, kedua-dua anggapan itu tidak boleh dipakai bersama untuk membuktikan pengedaran, seperti yang telah diputuskan oleh Mahkamah Persekutuan dalam kes Muhammed bin Hassan v. Public Prosecutor [1998] 2 CLJ 170 (MP) dan Tunde Apatira & 2 Ors. v. Pendakwa Raya [2001] 1 CLJ 381 (MP).
Maka, yang tinggal hanyalah sama ada, jika menimbang keterangan yang dikemukakan oleh pendakwaan dalam kes ini, terdapat keterangan yang “overwhelming” untuk hakim perbicaraan memutuskan bahawa perayu memiliki dadah itu. Persoalan ini juga telah kami bincang dengan panjang lebar dalam kes-kes tersebut dan kami tidak berhajat mengulanginya. Kami telah mengambil perhatian keadaan dalam kes Tunde Apatira di mana Mahkamah Persekutuan memakai proviso berkenaan. Dalam kes itu dadah berkenaan dijumpai dalam peket dalam perut tertuduh. Kami juga mengambil perhatian keadaan dalam kes Muhammed bin Hassan dan Haryadi bin Dadeh v. Public Prosecutor [2000] 3 CLJ 553 (MP) di mana Mahkamah Persekutuan enggan memakai proviso tersebut.
Dalam kes ini, dadah berkenaan dijumpai dalam kereta yang dipandu oleh perayu, satu dalam bungkusan plastik yang berada di tempat duduk hadapan sebelah kiri pemandu (perayu), dan satu bungkusan lagi dalam poket seluar perayu. (Dadah heroin yang dijumpai dalam poket seluar perayu itu hanya seberat 3.051 gram). Tanpa keputusan mengenai milikan dadah yang dijumpai di atas tempat duduk kereta itu, anggapan di bawah s. 37(da) tidak boleh berbangkit. Dibandingkan dengan fakta dalam kes Tunde Apatira di mana dadah dijumpai dalam perut tertuduh, dan mengambil kira fakta dalam kes Muhammed bin Hassan dan Haryadi bin Dadeh yang dalam kedua-dua kes yang disebut kemudian itu Mahkamah Persekutuan enggan memakai proviso itu, kami berpendapat bahawa kes ini bukanlah satu kes yang membolehkan mahkamah ini, di peringkat rayuan, mengatakan dengan yakin bahawa jika hakim perbicaraan telah menimbang keterangan yang dikemukakan, beliau juga akan memutuskan dengan positif bahawa perayu memiliki dadah yang terletak di atas tempat duduk hadapan, sebelah kiri pemandu kereta itu. Atas alasan ini kami enggan memakai proviso itu dalam kes ini dan menggantikan sabitan dan hukuman seperti yang disebut di awal alasan penghakiman ini.