LEGAL PROFESSION QUALIFYING

BOARD, MALAYSIA

Subject Outlines for the Certificate in Legal

Practice Examination 2020

Legal Profession Qualifying Board, Malaysia

Unit 22-01, Level 22,
Tower 2, Bank Rakyat Twin Tower,
No. 33, Jalan Rakyat
50470 Kuala Lumpur
Malaysia

© All rights reserved 2020

No part of this Subject Outline may be reproduced without the permission of the Qualifying Board, Malaysia
 FOREWORD

The Legal Professional Qualification Board, Malaysia ('the Qualifying Board') was
established under Part II of the Legal Profession Act 1976 (Act 166) (‘LPA’). Among
the functions of the Qualifying Board is deciding on the qualifications, other than the
qualifications set out in paragraphs (a) and (b) of the definition of a "qualified
person" in section 3 of the LPA; which may entitle a person to be a “qualified
person” for the purposes of the LPA, as only a “qualified person” can practice as an
Advocate and Solicitor in Malaysia.

The Certificate of Legal Practice (‘CLP’) is one of the recognized qualifications for
that purpose. A person who has passed the CLP examination (‘CLPE’) conducted by
the Qualifying Board is considered as a qualified person under the LPA since 24
September 1984 (PU(B) 596/1990). A CLP holder may undergo a specified pupillage
period for a qualified person under section 12 of the LPA to qualify for admission and
registration as an Advocate and Solicitor.

The CLPE has been in existence since 1984, and it is run by the Qualifying Board.
However, The Qualifying Board does not conduct any course of study for
the CLPE. The Qualifying Board only manages the CLPE by determining the
qualification of candidates who will sit for the CLPE, the CLPE syllabus and conduct
the CLPE by, inter alia, registering candidates, overseeing the preparation of
examination papers, managing the marking process, processing the examination
results, announcing examination results and issuing the Certificate.

Registration for CLPE is open to holders of Bachelor of Laws degrees awarded by

Universities recognized by the Qualifying Board.

Qualification requirements for holders of the Bachelor of Laws from the United
Kingdom are specified in the "New Guidelines on the Qualifications and
Requirements to Qualify to Sit for Malaysian Certificate in Legal Practice (CLP)
Examination (for Law Degrees from the United Kingdom)" issued on 18 March 1995
which came into force on 1 October 1998. There are a series of amendments and
explanations to these guidelines that have been made by way of clarifications,
statement, press releases and announcements since 1997. Through a press release
dated 5 December 1999, which came into effect on 1 January 2001, only thirty law

i
degrees from Universities and Institutions of Higher Learning in the United Kingdom
are recognized by the Qualifying Board.

For all holders of the Bachelor's Degree in Laws from Australian and New Zealand
universities recognized by the Qualifying Board, the CLPE shall be mandatory for
graduating students who have completed the course and graduated with that degree
on or after 1 May 1999. Qualification requirements for the degree holders are found
in the “Guidelines on the Qualifications and Requirements for Recognition of holders
of Australian and New Zealand Law Degrees” to become 'Qualified Persons' under
the Legal Profession Act 1976” issued on 30 April 1998 to be read together with a
Press Statement dated 11 June 1998.

There is also a list of universities in Malaysia that are recognized by the Qualifying
Board.

These Guidelines, clarifications, statement, press releases and

announcements; and list of local and international universities whose law
degree are recognized by the Qualifying Board for the purpose of applying
and sitting for the CLPE; can be access at the official portal of the
Qualifying Board at www.lpqb.org.my

The main CLP examination will be held in July 2020 and tentatively, the
supplemental examination in November 2020. The supplemental examination is for
candidates who fail one (1) subject only in the main CLP examination.

Application for new and repeating candidates to sit for the CLPE is made through the
Online Qualifying Board Application System (e-LPQB). If the application for CLPE as
a new candidate is approved by the Qualifying Board, the offer will be sent to the
applicant through e-LPQB. Applicants who wish to accept the offer are required to
pay the Registration Fees and Examination Fees within the prescribed period as
provided in the said offer letter. The Qualifying Board will not accept any appeal
after the said prescribed period.

Registered candidates are allowed four attempts to sit for the CLPE within four years
from the date of first registration. Upon expiration of the said four years, no re-
registration is allowed.

Each registered candidate will be permitted to have access to the CLPE Subject
Outlines 2020 which has been uploaded in the e-LPQB. The Subject Outlines only

ii
serves as a guide and reference to the candidates in the preparation for
the CLPE.

Repeat candidates who fail two or more subjects are required to register to sit and
pass all five subjects in the same examination; i.e. General Paper, Civil
Procedure, Criminal Procedure, Evidence and Professional Practice based on the
implementation mechanism of the time limit policies that have been uploaded to the
official portal of the Qualifying Board.

Applicants, candidates and all other stakeholders are advised to regularly check
the official portal of the Qualifying Board for information or current
announcement pertaining to matters relating to the CLPE or the Qualifying
Board.

All candidates who will sit for the main and/or supplemental CLPE 2020
are strongly encouraged to read and comply with all instructions
regarding the examination rules that will be published through the
Qualifying Board’s official portal and / or e-LPQB. All instructions issued
will be enforced strictly by the Qualifying Board without exception.
Candidates’ failure to read and understand those instructions will not be
accepted as an excuse on the day of the examinations.

Candidates are also reminded that the CLPE is a professional examination and
it emphasizes on the practical aspects of the legal practice in Malaysia
rather than it being an academic examination. Candidates are thus
advised to prepare appropriately before attempting the examinations.

The Qualifying Board expresses its sincere appreciation to those who have
cooperated and contributed to the updating of this Subject Outlines. Any errors or
omissions are unintentional.

Director
Certificate in Legal Practice Examination
Legal Profession Qualification Board, Malaysia

1 Jan 2020

iii
 CONTENT

Foreword … … … … i
Excerpt of Newspaper Report … … … … v

Important Notes to Candidates … … … … vii

General Paper … … … … 1

• Tort … … … … 6 - 33

• Contract … … … … 34 - 59

Civil Procedure … … … … 60 - 242

Criminal Procedure … … … … 243 - 375

Evidence … … … … 376 - 492

Professional Practice … … … … 493

• Section A: … … … …

o Part I - Advocacy and Duties of … … … … 500 - 513

Counsel

o Part II - Ethics of the Legal … … … … 514 - 558

Profession

• Section B: … … … …

o Part I - Land Law and Land … … … … 559 - 588

Dealings

o Part II – Insolvency and Winding- … … … … 589 - 614

Up

o Part III - Administration of Estates … … … … 615 - 638

iv
 EXCERPT OF A NEWSPAPER REPORT

For the purpose of this Subject Outlines, excerpts of a report published in “The Star”
on Wednesday, 24 September 2008 titled “CLP exam candidates judged on
their knowledge and merit”1 are reproduced as follows:

What is the aim of the Certificate of Legal Practice (CLP) examination?

The CLP examination is another gateway for legal practice in Malaysia. It is a

professional examination designed to gauge whether candidates have reached an
acceptable degree of competency to enable them to enter into the legal profession
to practice. Thus, candidates must be able to identify legal issues raised in the
examination questions and advise on an appropriate legal recourse without going
into an academic exercise or a discourse on the law.

What is the criterion adopted by the paper setters for the CLP
examination?

As the primary aim of the examination is to equip candidates for legal practice the
questions set, are in the main, current, relevant and applicable to legal practice.

What is the process involved after the examination?

The Legal Profession Qualifying Board (LPQB) does not seek to fail any candidate
and the scripts are to be marked purely on the candidate’s knowledge and merit is
the only criteria. As long as the candidates are:

(i) Able to identify the issues of legal practice involved in a question;

(ii) Able to apply the relevant law and/or procedure to the issues identified; and
(iii) Able to explore the legal issues with legal reasoning and analysis,

they ought to be given marks. In that respect the markers are reminded that the
answer scheme is just a guide as it is not cast in stone and the markers are allowed
to use their discretion when marking the scripts. The rationale for this procedure is
that benefit must always be given to the candidate who is able to answer the

1
Please see the full report which can be found at the Bar Council website titled “Better CLP exam
results this year” published on Thursday, 27 November 2008.

v
question. In that regard it is also ensured that candidates who have answered
illegibly are not penalized but attempts are genuinely made to ascertain what is
written if not by the marker, by another marker.

For several years there have been many criticisms hurled at the conduct of
the CLP examination and the results of the examination. Amongst the
criticisms are that candidates are failed on purpose, there is a racial quota
to be met hence the percentage of passes is always low and also that
although the examination is to equip candidates for legal practice but it
turns out to be test of the candidates’ memory function. What is LPQB’S
comment?

The LPQB does not have any racial quota in mind when it endorses the results of the
CLP examination. It takes the marks given by markers who are legal experts in their
respective fields, as they are. The whole CLP examination is only based on one
factor and it is MERIT and nothing else.

The examination is not a test of memory function by the candidates. It is the

candidates who resort to regurgitation of information memorized by them. Those
who fail are just unable to identify the legal and procedural issues raised in the
examination questions; and deal with them directly. More often the candidates have
embarked on an academic exercise or a discourse on the law which is totally
unrelated to legal practice. This has disabled the marker from awarding them a pass
mark as the candidates fail to reach an acceptable standard for them to pass the
examination so as to enable them to enter into the legal profession to practice.

vi
 IMPORTANT NOTE TO CANDIDATES

1. Candidates are advised to –

(a) keep abreast with amendments to the statutes related
to the respective subjects and all other relevant
statutes;

(b) read relevant latest court decisions; and

(c) peruse the past years’ examination papers.

2. Candidates are -

(a) required to identify the issues raised in a question.

Discussion of any issue must be supported with the law
and decided cases.

(b) encouraged to answer questions by way of critical analysis, if

necessary.

(c) discouraged from regurgitating statutory provisions,

decided cases and any course notes or ‘model answers’
memorized by them without a logical application to the
issues raised in a question.

(d) required to state the relevant law and/or legal principle

as well as applying the law and/or legal principles to
the facts stated in the questions.

(e) required to write legibly. This will enable examiners to read

and understand the answers given.

(f) cautioned that any form of cheating or attempts to cheat by

any means whatsoever (inclusive of annotating or marking in
anyway any statues that are allowed to be brought into the
examination hall) will be strictly and swiftly dealt with, to the
detriment of that candidate.

vii
 GENERAL PAPER

© All rights reserved 2020

No part of this outline may be reproduced without the permission of the Qualifying Board, Malaysia
General Paper 1

PREFACE

A. INTRODUCTION

1. The subject General Paper comprises two (2) vital areas of legal practice which
are:

(a) Tort; and

(b) Contract.

2. In concurrence with the aim of the Certificate in Legal Practice (‘CLP’)

Examination which is to prepare candidates for legal practice, they are
essentially required to -

(a) advise on evidence and procedure;

(b) advise on remedies; and
(c) draft the requisite pleadings.

3. For the subject Tort, candidates are expected to have a good practical and
working knowledge of the law of tort of negligence, occupier's liability and
strict liability. Emphasis is on the following areas:

(a) Liability;
(b) Damages for Personal Injuries and Causing Death; and
(c) Property Damage.

4. With regard to 3(b) above, candidates must be aware that they may be
required to advise on both personal injuries and causing death.

5. For the subject Contract, candidates are expected to have good practical and
working knowledge of the law of contract. Emphasis is on the remedies
resulting from a breach of contract which include:

(a) Damages as a remedy for breach;

(b) Specific performance;
(c) Injunction; and
(d) Rescission.
General Paper 2

6. Cases stated in this Subject Outline are merely a guide and are not
meant to be exhaustive.

B. SALIENT STATUTES

1. Tort

(a) Civil Law Act 1956 (Act 67)

(b) Civil Law (Amendmant) Act 1984

(c) Civil Law (Amendmant) Act 2019

(d) Road Transport Act 1987 (Act 333)

(e) Factories and Machineries Act 1967 (Act 139)

(f) Other relevant statutes

2. Contract

(a) Contracts Act, 1950 (Act 136)

(b) Specific Relief Act, 1950 (Act 137)

(c) Civil Law Act, 1956 (Act 67)

C. TEXTBOOKS AND REFERENCES

1. Tort

(a) Relevant chapters in Winfield and Jolowicz on Tort and Street on Torts

(b) Kemp & Kemp, The Quantum of Damages in Personal Injury Claims

(c) Munkman, Damages for Personal Injuries and Death

(d) McGregor on Damages: relevant chapters

(e) Goldrein & de Haas, Personal Injury Litigation, Practice and Precedents

(f) Lim Heng Seng, Assessment of Damages in Personal Injury And Fatal
Accident Claims
General Paper 3

(g) Param Cumaraswamy, 'The Uncivil Act' (an article in INSAF Vol. XVII, No.
3, October 1984)

(h) Seth M. Reiss, 'Quantum for Future Loss in Personal Injury and Fatal
Accident Cases' (an article in [1985] 2 M.L.J. 1xii)

(i) Nathan on Negligence by Justice Dato' R.K. Nathan

(j) R.K. Nathan, Quantum of Damages

(k) M.F. Rutter, Handbook on Damages For Personal Injuries and Death in
Singapore and Malaysia

(l) Salleh Buang, Law of Negligence in Malaysia

(m) Civil Litigation and Remedies (Published for the Inns of Court School of
Law by the Blackstone Press Ltd) (relevant chapters)

(n) P. Balan, Damages for Personal Injuries and The Civil Law (Amendment)
Act, 1984 (an article in [1989] JMCL 180 - 191)

(o) P. Balan, Loss of Future Earnings, Loss of Earning Capacity and The Civil
Law (Amendment) Act, 1984 (an article in [1990] JMCL 169-180)

(p) P. Balan, Deduction of Living Expenses from Damages for Loss of Future
Earnings [1992] JMCL 229 - 235

(q) Khoo Guan Huat, Assessment of Damages in Fatal Accident Claims and a
Commentary on the Civil Law (Amendment) Act 1984 [1993] 1 MLJ cxxix

(r) P. Balan, Depending on the Dependency Claim [1994] JMCL

(s) S. Santhana Dass, Personal Injury Claims (2000). Students may find this
book comprehensive in nature and very useful. This book is a very recent
publication.

(t) Dass, K.S., Quantum of Damages in Personal Injury - Parliament v

Common Law: A Critical Examination of the Effects of the 1984
Amendments to the Civil Law Act 1956 (Selangor: Legal Circle Books Sdn
Bhd), 1997

(u) Balan, P., "Compensation for Lost Services in a Dependency Claim" [1995]
JMCL71

2. Contract

(a) Sinnadurai, The Law of Contract in Malaysia and Singapore: Cases and
Commentary, 2nd Ed., Singapore, Butterworths, 1987
General Paper 4

(b) Sinnadurai, The Sale and Purchase of Real Property in Malaysia,

Butterworths, 1984, Chapters 10, 11, 12

(c) J.L. Kapu, Pollock & Mulla on Indian Contract and Specific Relief Acts,
10th Ed., Bombay, N.M. Tripathi Private Ltd., 1986

(d) Chitty on Contracts, Vol. 1, General Principles, 26th Ed., London, Sweet &
Maxwell, 1989

(e) Harvey McGregor, McGregor on Damages, 15th Ed., London, Sweet &
Maxwell, 1988

(f) Civil Litigation and Remedies, Inns of Court School of Law, Blackstone
Press Ltd, 2nd Ed., 1990, pp. 335-353

(g) Beale, Hugh, Remedies for Breach of Contract (London: Sweet &
Maxwell), 1980

(h) Burrow, Andrew, Remedies for Torts and Breach of Contract (London:
Butterworth, (2nd Ed., 1994)

(i) Treitel G.H., Remedies for Breach of Contract - A Comparative Account

(Oxford: Clarendon Press), 1989

(j) Phang, Andrew, Cheshire, Fifoot and and Furmston's Law of Contract -
Singapore and Malaysian Edition (Butterworths Asia), (2nd Ed., 1998)

(k) Tan Seng Teck, Assessing the Extent to Which Williams v Roffey Has
Altered the Doctrine of Consideration, the Law Review 2005 at page 282

(l) Cheong May Fong, A Malaysian Doctrine of Inequality of Bargaining Power

and Unconcsionabality After Saad Marwi [2005] 4 MLJ i-cvvi

(m) Prof Dr Cheong May Fong, The Contracts Act 1950: Tempered by
Fairness, Justice & Equity? Inaugural Lecture, Faculty of Law, University
of Malaya, 22 Oct 2008

(n) Bullen & Leake & Jacobs Precedents of Pleadings, Sweet & Maxwell Ltd.
(16th. Ed., 2007)

(o) Malaysian Court Forms, Malayan Law Journal Sdn Bhd

(p) S. Santhana Dass, General Principles of Malaysian Contract Law

General Paper 5

D. EXAMINATION

1. There will be TWO (2) questions in the examination paper.

2. Candidates are required to answer both questions. A question may be

divided into several parts and may deal with more than one area of the law of
torts /contract.

3. Candidates are allowed to refer to the Contracts Act 1950 (Act 136),
Specific Relief Act 1950 (Act 137) and Civil Law Act 1956 (Act 67),
which will be provided during the examination. Candidates are not allowed to
bring into the examination hall their own copies of the said statutes or any
other statutes not specified here.

ooOoo
General Paper 6

A. TORT

Summary of the outline on the law of Tort:

A. Liability

B. (1) Damages for Personal Injuries

(2) Damages for Causing Death in Fatal Accidents

C. Property Damages

D. Economic Loss

_____________________________

I. LIABILITY

Liability refers to negligence of parties in their conduct whereby the court will, based
on the facts and in accordance with the principles of contributory negligence,
apportion liability. The following topics need to be considered:

1. General Principles Governing Law of Negligence

(a) Duty of Care/Breach of Duty/Remoteness and Foreseeability

• Lim Kar Bee v Abdul Latif b Ismail [1978] 1 MLJ 109
• Periasamy v Suppiah [1967] 1 MLJ 19
• Chang Kan Nan v Ludhiana Transport Syndicate [1950] MLJ 299
• K.R. Taxi Service Ltd & Anor v Zahara & Ors [1969] 1 MLJ 49
• Kanagasabapathy v Narasingam [1979] 2 MLJ 68
• Goh Beng Seng v Dol bin Dollah [1970] 2 MLJ 95
• Siva Kumaran & Ors v Yu Pan & Anor [1955] 1 MLJ 13
• Hussaina Rani Naina Mohamed v Ahmad Nadzri Kamaruddin & Anor
[1997] 3 CLJ 500
• Tan Ah Kau v The Government of Malaysia (1997) 2 CLJ Supp 168
• Lew Thai v Chai Yee Chong (1982) 2 MLJ 124 FC
• Sri Inai (Pulau Pinang) Sdn Bhd v Yong Yit Swee & Ors [2002] 4 CLJ
776 (CA)
• Arab Malaysian Finance Bhd v Steven Phoa Cheng Loon [2001] 1 CLJ
585 (CA)
• Steven Phoa Cheng Loon & Ors v Highland Properties Sdn Bhd & Ors
[2000] 3 AMR 3567 (HC)
• Megat Najmuddin Megat Khas & 2 Ors v Perwira Habib Bank
Malaysia Berhad [2003] 3 CLJ 816 (CA)
• Chong Kok Weng & Anor v Wing Wah Travel Agency Sdn Bhd & Anor
General Paper 7

[2003] 5 MLJ 550

• Chai Yee Chong v Lew Thai [2004] 2 MLJ 465
• Mohd Zulkhairi Abd Ghapar v Quek Chiam Kee [2004] 5 MLJ 6
• Public Bank Berhad v Anuar Hong & Ong [2005] 4 MLJ 184
• Majlis Perbandaran Ampang Jaya v Steven Phoa Cheng Loon & Ors
[2006] 2 MLJ 389 (FC)
• Sarawak Shell Bhd v The Owners or other persons interested in The
Ship or Vessel The 'Red Gold' and another action [2011] 1 MLJ 239
(HC)
• Choy Meng Heng &Anor v Immediate Strategy Sdn Bhd & Anor
[2010] 7 CLJ 1000 (HC)
• Chua Seng Sam Realty Sdn Bhd v say Chong SB & Ors [COA 7-9-
2012] [Civil Appeal: W-02-1731-2009]
• Khoo Teng Bin v Khoo Theng Seong [High Court 7-4-2012] [S6-22-
1073-2006]
• Ahmad Jaafar Abdul Latiff v Dato Bandar Kuala Lumpur [2014] 9 CLJ
861 [Federal Court]
• Ng Siew Lan v John Lee Tsun Vui & Anor [2017] 2 MLJ 167
• Raymond Cheah Choon Sing v Jurutera Daerah, Jabatan Kerja Raya
Seberang Perai Tengah & Ors [2018] 1 MLJ 362KPS-HCM Sdn Bhd v
Shahrul Izewan Mat Husin & Ors [2018] 6 CLJ 772 [High Court]

(b) Burden of proof/Onus of proof/Standard of proof

• Hussaina Rani Naina Mohamed v Ahmad Nadzri Kamaruddin & Anor
[1997] 3 CLJ 500 - onus of proving negligence on the defendant is
on the plaintiff
• Tan Ah Kau v Government of Malaysia [1997] 2 CLJ Supp 168 (HC) -
Burden of proof
• Ng Chui Sia v Maimon bt Ali (1983) 1MLJ 110
• Teoh Guat Looi v Ng Hong Guan (1998) 4 CLJ 416
• Jaafar Shaari & Siti Jama Hashim v Tan Lip Eng & Anor [1997] 4 CLJ
509
• Sivalingam a/l S Ponniah v Bank of Commerce (M) Berhad
(Thiyagarajan a/l S Ponniah - Third Party) [2003] 3 AMR 207 (HC)
• Udhaya Kumar a/l Karuppusamy v Penguasa Hospital Daerah
Pontian & Ors [2004] 2 MLJ 661
• Mohd Yusof Mohd Rakim & Anor v Shanta Periasamy & Anor [2006]
3 CLJ 825
• Foo Fio Na v Dr Soo Fook Mun & Anor [2007] 1 MLJ 593
• Southern Pipe Industries (M) Sdn Bhd v Barwill Agencies Sdn Bhd &
Ors [2010] 1 LNS 1373 (HC)
• Arulappan Kannan v Suresh Chopra & Ors [2010] 1 LNS 1374
• Inas Faiqah Mohd Helmi v Kerajaan Malaysia [2016] 2 MLJ 1
• Letchumanan Chettiar Alagappan v Secure Plantation Sdn Bhd
[2017] 4 MLJ 697
General Paper 8

(c) Apportionment of liability/Contributory negligence

• Malaysian National Insurance Sdn Bhd v Lim Tiok [1997] 2 MLJ 165
SC
• Rubaidah bte Dirin v Ahmad bin Ariffin [1997] 1 MLJ 677 CA
• Siti Aisha binti Ibrahim v Goh Cheng Hwai [1982] 2 MLJ 124 FC
• Tabarani Mohd Arsad & Anor v Chan Tenn Yeu [1999] 3 CLJ 188
• Mustapah bin Puteh v Basit bin Mohammad [1999] 1 MLJ 539
• Union Insurance (M) Sdn Bhd v Chan You Young [1999] 1MLJ 59
• Union Insurance (M) Sdn Bhd v Chan You Young [2003] 3 MLJ 484
(HC)
• Chu Kim Sing & Anor v Abd Razak Amin [1999] 4 CLJ 448
• Taw Too Sang lwn Chew Chin Sai & Yg Lain [2000] 4 AMR 4257
• Nadarajan Muniandy v Ayob Jauhari [2001] 4 CLJ 718 (HC)
• Zulsafari bin Ab Ghani & Anor v Shahril bin Idris [2002] 7 MLJ 436
(HC)
• Muniyandi a/l Periyan & Anor v Eric Chew Wai Keat & Anor [2003] 4
AMR 608 (HC)
• Mohd Zulkhairi Abd Ghapar v Quek Chiam Kee [2004] 5 MLJ 6
• Muhamad Jafri Jantan & Ors v Zainal Md Rais [2005] 1 CLJ 694 (CA)
• Malaysian Testing Laboratory Sdn Bhd & Standard Chartered Bank
Malaysia Bhd [2010] 9 CLJ 309 (HC)
• Khairul Anwar Abd Aziz & Anor v Pakiam Vitilingam & Anor [2010] 7
MLJ 372 (CA)
• Wu Siew Ying v Gunung Tunggal Quarry & Construction Sdn
Bhd&Ors [1999] 4 CLJ 339
• Wu Siew Ying (t/a Fuh Lin Bud-Grafting Centre) v Gunung Tunggal
Quarry & Construction Sdn Bhd & Ors [2008] 2 CLJ 793 (CA)
• Wu Siew Ying v Gunung Tunggal Quarry &Construction Sdn Bhd &
Anor [2011] 1 CLJ 409 (FC)
• Parisday @ Soso ak Michael Kuday [the administratix of the estate of
Calestine ak Parisday [deceased] & Anor v Sari ee bin Dogak & Anor
[2013] 7 MLJ 18
• Siti Athirah Mohd Sapuan v Razanatul Ain Hassan [2015] 6 CLJ 295

2. Motor Vehicle Accident

• Liability of Parties in respect of motor vehicle accidents/application of the

Road Transport Act 1987 (Act 333) in such cases and claims against
insurance companies, and under what circumstances the insurance
companies are liable.
o Mohd Samsudin Ismail v Tan Yeow Hwa & Anor [2000] 4 CLJ 398
(HC)
o Abdul Kadir bin Mohamad v Kamarulzaman bin Mohd Zin & Anor
General Paper 9

[2001] 1 AMR 599 (HC)

o Ab Lah b Ali v Yong Wah Sing [2001] 1 AMR 801 (HC)
o Siti Rohani bte Mohd Shah & Ors v Hj Zainal bin Saifee & Anor
[2001] 5 MLJ 8 (HC)
o Mohamad Khirul Mizan Shafie & Anor v Yue Ah Kai [2002] 8 CLJ 672
o Ng Cheah Cheong v Ong Sing Hock [2002] 3 AMR 3420 (HC)
o Teoh Bu Cheng v Loh Khay Sooi [2002] 7 MLJ 183 (HC)
o Peter a/l Selvaraj & Anor v Cheng Bee Teik & Ors [2002] 4 MLJ 167
(HC)
o Cheng Bee Teik & Ors v Peter a/l Selvaraj & Anor [2005] 4 MLJ 2001
(CA)
o Ang Soong Seng & Anor v Noraini bte Doralik & Anor [2003] 5 MLJ
456 (HC)
o Tahan Insurance Malaysia Bhd v Ong Choo Tian & Anor [2004] 7 CLJ
270
o Muhamad Jafri Jantan & Ors v Zainal Md Rais [2005] 1 CLJ 694 (CA)
o Assahari bin Daud, Wakil Diri Bagi v Meriam bte Ishak & Ors [2005]
3 MLJ 143 (CA)
o Selvaraju a/l Velasamy & Anor v Abdullah Ali Kutty & Ors [2009] 8
MLJ 267 (HC)
o Rothmans of Pall Mall (Malaysia) Bhd v Suhaidi Samat [2010] 1 LNS
423 (CA)
o Noriman Nordin & Anor v Mohd Asrul Mohd Zin [2011] 1 LNS 705

3. Rylands & Fletcher

• Seong Fatt Sawmills Sdn Bhd v Dunlop Malaysia Industries Sdn Bhd
[1984] 1 MLJ 286
• Wisma Puncha Emas Sdn Bhd v Dr Donald R O Holohan [1987] 1 MLJ 393
• Abdul Rahman bin Che Ngah & Ors v Puteh bin Samat [1978] 1 MLJ 225
• Arab Malaysian Finance Bhd v Steven Phoa Cheng Loon [2001] 1 CLJ 585
(CA)
• Eng Thye Plantations Bhd v Lim Heng Hock & Anor [2001] 4 CLJ 245 (CA)
• Yap Kow & Sons Sdn Bhd v Hongkong Tin Plc [2001] 8 CLJ Supp 788
• Kembang Masyur Sdn Bhd v Milik Perusahaan Sdn Bhd [2005] 4 MLJ 553
(HC)
• Milik Perusahaan Sdn Bhd & Anor v Kembang Masyur Sdn Bhd [2002] 4
AMR 4890 (CA)
• Majlis Perbandaran Ampang Jaya v Steven Phoa Cheng Loon & Ors [2006]
2 MLJ 389
• Yung Kong Co Bhd v HHH Tyre Retreading Sdn Bhd & Another case
[2009] 4 CLJ 424 (HC)

4. Nuisance
• High Lee (Cheong Leong & Sons) Brickmakers Ltd v Weng Lok Mining Co
General Paper 10

Ltd [1974] 1 MLJ 1

• Lim Kar Bee v Abdul Latif bin Ismail [1978] 1 MLJ 109
• Toyo Textiles Industries Sdn Bhd & Anor v Lian Foong Housing Dev (M)
Sdn Bhd [1986] 1 MLJ 412
• MBF Property Services Sdn Bhd v Madihill Development Sdn Bhd (No. 2)
(1998) 4 CLJ 136
• Wu Siew Ying v Gunung Tunggal Quarry & Construction Sdn Bhd & Ors
[1999] 4 CLJ 339
• Steven Phoa Cheng Loon & Ors v Highland Properties Sdn Bhd & Ors
[2000] 3 AMR 3567 (HC)
• Arab Malaysian Finance Bhd v Steven Phoa Cheng Loon [2001] 1 CLJ 585
(CA)
• Hotel Continental Sdn Bhd v Cheong Fatt Tze Mansion Sdn Bhd [2002] 3
CLJ 653
• Uda Holdings Bhd v Koperasi Pasaraya (M) Bhd and other Appeals [2009]
1 MLJ 737 (FC)
• Hock Wee Nurseries Sdn Bhd v Fajar Saga Sdn Bhd [2010] 1 LNS 1111
• Au Kean Hoe v Persatuan Penduduk D’villa Equestrian [2015] 4 MLJ 204

5. Industrial Accident
• Mohd Sainuddin bin Ahmad v Consolidated Hotels Ltd & Anor [1991] 1
MLJ 271
• Datuk Bandar Dewan Bandaraya Kuala Lumpur v Ong Kok Peng & Anor
[1993] 2 MLJ 234
• Factories & Machinery Act (1967)
• Liang Jee Keng v Lik Kee Restaurant Sdn Bhd [2002] 2 CLJ 750
• Chai Yee Chong v Lew Thai [2004] 2 MLJ 465

6. Occupiers Liability
• Ho Teck Fah v Looi Wah T/A Looi Construction [1980] 1 LNS 118
• China Insurance Co Ltd v Woh Hup (Pte) Ltd [1977] 2 MLJ 57
• Woh Hup (Pte) Ltd v China Insurance Co Ltd [1978] 1 MLJ 59 (CA)
• Sri Inai (Pulau Pinang) Sdn Bhd v Yong Yit Swee & Ors [2002] 4 CLJ 776
(CA)
• Chai Yee Chong v Lew Thai [2004] 2 MLJ 465
• Shanta Manickam v Teik Joo Chan Sdn Bhd [2015] 11 MLJ 721

7. Medical Neligence
• Foo Fio Na v Dr Soo Fook Mun & Anor [2007] 1 MLJ 593
• Lee Ewe Poh v Dr Lim Teik Man & Anor [2011] 4 CLJ 397
• Zulhasnimar Hasan v Dr Kuppu Velumani [2017] 8 CLJ 805
• Dr Hari Krishnan v Megat Noor Ishak bin Megat Ibrahim [2018] 3 MLJ 281
General Paper 11

II. DAMAGES FOR PERSONAL INJURIES

(In this Outline, ‘CLA 1956’ refers to the Civil Law Act 1956, ‘CL(A)A 1984’
refers to the Civil Law (Amendment) Act 1984) and Civil Law (Amendment) Act
2019 refers to CLA 2019.

1. Application of English Law

• Yang Salbiah v Jamil bin Harun [1981] 1 MLJ 292 (F.C.); Jamil bin Harun
v Yang Kamsiah [1984] 1 MLJ 217 (P.C.).
• Jag Singh v Toong Fong Omnibus Co. Ltd. [1964] 1 W.L.R. 1382.

2. General principles regarding assessment of damages

Syed Agil Barakbah F.J. in Ong Ah Long v Dr. S. Underwood [1983] 2 MLJ 324:
"[D]amages for personal injuries are not punitive and still less a reward. They
are simply compensation that will give the injured party reparation for the
wrongful act, so far as money can be compensation."

3. Once only
See Fitter v Veal (1701) 12 Mod. Rep. 542 (sued and obtained small amount of
damages for assault; subsequently part of his skull was removed and he sought
damages; failed - no two distinct rights violated) and Brunsden v Humphrey
(1884) 14 Q.B.D. 141 (Cab damaged and cab driver injured. A suit for damages
for the cab did not prevent a subsequent suit for damages for injury).

4. Damages are either special or general or aggravating

• In the recent case of Dr Hari Krishnan v Megat Noor Ishak bin
Megat Ibrahim [2018] 3 MLJ 281, the court had awarded
aggravating damages as a separate head of damage in tort

5. Special damages

(a) Special damages represent the plaintiff's actual pecuniary loss between
the date of the accident and the date of the award or settlement, e.g.
medical expenses, nursing fees, transport expenses to and from hospital,
personal items damaged in the accident. All special damages must be
specifically pleaded and proved.
• Ong Ah Long v Dr S Underwood (1983) 2 MLJ 324
• Tan Teck Hing & Anor v Lee Yong Kong & Anor [2003] 5 CLJ 400

(b) Duty to mitigate loss

• Ting Jie Hoo v Lian Soon Hing Shipping Co. (1990) 2 MLJ 56
• Harcharan Singh v Harzan bin Ariffin (1990) 2 CLJ 395
General Paper 12

• Batumalee a/l Masilamani & Anor v Thong Chan Leng & Anor [2003]
4 CLJ 95 (HC)
• Mohd Saad Mat v Ahmad Mujibudin Mohd Sharif [2002] 6 CLJ Supp
323 (HC)

(c) Effect of CL(A)A 1984 on pre-trial loss of earnings.

(i) The 1984 Act prescribed fixed multipliers by taking the age of the
victim "at the time he was injured". Is it still necessary to
distinguish between pre-trial and post-trial loss of earnings? See
Dirkje v Mohd Noor bin Baharom & Ors [1990] 3 MLJ 103, 106
(distinction no more relevant).

(ii) See also the approach in Chang Chong Foo v Shivanathan [1992] 2
MLJ 473.

6. General damages
General damages represent the loss to the plaintiff that cannot be precisely
quantified. Heads of general damages at Common Law are: pain and suffering,
loss of amenity, loss of expectation of life, future loss of earnings, loss of
earning capacity, future care expenses.
• Sam Wun Hoong v Kader Ibramshah [1981] 1 MLJ 295
• Yang Salbiah v Jamil bin Harun [1981] 1 MLJ 292 (FC); [1984] 1 MLJ 217
(PC)
• Lim Poh Choo v Camden etc Health Authority [1980] A.C. 174
• Ratnasingam v Kow Ah Dek [1983] 2 MLJ 297
• Zuffre Hj Zakaria v Nurazmi Hj Layeh [1998] 5 CLJ 824
• Heng Poh Keat & Anor v Aphissit Sae Wong [2001] 1 CLJ 836
• Goh Chai Huat (Administrator of the Estate of Goh Min Teck, deceased) v
Lee Mui Ping (f) & 3 Ors [2000] 4 CLJ 319 (CA)
• Hum Peng Sin @ Ham Lin Kin (suami kepada Chiam Kao Kee @ Cheah
Kao Kee simati sebagai dependan) v Lim Lai Hoon & Anor [2001] 4 AMR
4171 (CA)
• Loh Hee Thuan v Mohd Zani bin Abdullah [2003] 1 AMR 332 (HC)
• Shanmugam a/l Gopal v Zainal Abidin bin Nazim & Anor [2003] 3 MLJ 76

7. Quantification of special damages

Difficulty seldom arises here and the damages are easily ascertained by adding
up the various items. Special damages must be specifically pleaded and proved
at the trial.
• Ong Ah Long v Dr S Underwood (1983) 2 MLJ 324
• Tan Teck Hing & Anor v Lee Yong Kong & Anor [2003] 5 CLJ 400
General Paper 13

8. Quantification of general damages

(a) Pain and suffering; loss of amenity

(i) These two items are usually taken together. The amount awarded
will depend on the type of injury and also the length of the
suffering. Pain includes past and prospective pain and pain from
medical treatment.

• See the cases cited in 6 (supra) and also Thrimalai & Anor. v
Mohamed Masry [1987] 1 MLJ 153; Tan Lian Heng v Kilang
Papan Aman Sdn. Bhd. & Anor. [1987] 2 MLJ 630; Ong Teik
Seng v Ho Swee Chee [1987] 2 MLJ 650; Lee Ann v Mohamed
Sahari [1987] 1MLJ 252; Heng Poh Keat & Anor v Aphissit Sea
Wong [2001] 3 AMR 2927 (HC); Shanmugam a/l Gopal v Zainal
Abidin bin Nazim & Anor [2003] 3 MLJ 76

• Conventional sums for types of injury - see reports entitled

Digest of Cases on Measure of Damages in MLJ and R.K.
Nathan, Quantum on Damages.

• From 1.10.1984 awareness of loss of expectation of life, where

applicable, should be taken into account (see s. 28A(2)(b) of
CLA 1956).

(ii) Compare position:

• where injured party dies shortly after the accident;
• where death was instantaneous; and
• where injured party becomes unconscious (no award for pain
and suffering but an award will be made for loss of
amenity - see Wise v Kaye [1962] 1 Q.B. 638 and Lim Poh
Choo, supra). See also Thangavelu v Chia Kok Bin [1981] 2 MLJ
277.

(iii) Multiple injuries:

• See Wee Siaw Hong v Lau Siew Tick [1979] 1 MLJ 232, Yasin v
Loo Kok Wai [1980] 2 MLJ 43; Lau Ee Ee v Tang King Kwong
[1986] 1 MLJ 308 and Thrimalai & Anor. v Mohamed Masry
[1987] 1 MLJ 153 for cases where damages awarded for
multiple injuries overlap.
• Chong Chee Khong & Anor. v Ng Yeow Hin [1997] 4 CLJ Supp.
17
• Seah Yit Chen v S'pore Bus Service (1978) Ltd & Ors [1990] 3
General Paper 14

MLJ 144
• Mahamad bin Mahamad Said & Anor v Perianayagam & Anor
[1972] 1 MLJ 67
• Tan Cheong Poh & Anor v Teoh Ah Keow (CA) [1995] 3 MLJ 89
• Azizi Amran v Hizzam Che Hassan [2006] 3 CLJ 821

(b) Loss of expectation of life

• Flint v Lovell [1935] 1 K.B. 354.
• Lee Ann v Mohamed Sahari [1987] 1 MLJ 252.
• This common-law head was abolished by section 5 of CL(A)A 1984.
• See section 28A(2)(a) of CLA 1956.

(c) Loss of future earnings

(i) Meaning
• Goh Chai Huat (Administrator of the Estate of Goh Min Teck,
deceased) v Lee Mui Ping (f) & 3 Ors [2000] 4 CLJ 319 CA -
whether loss of future earning claimable under s. 8(2)(c) of the
Civil Law Act 1956

(ii) Old practice: pre-trial and post-trial loss.

(iii) Pre-trial loss - actual loss, easily quantified.

• Batumalee a/l Masilamani v Thong Chan Leng [2003] 4 MLJ
391

(iv) Post-trial loss of earnings - determined by:

• how long - multiplier (years of purchase); and

• how much - multiplicand.

Duty to mitigate:
• Ting Jie Hoo v Lian Soon etc [1990] 2 MLJ 56
• Ward v MAS [1991] 3 MLJ 317

(v) Multiplier - Malaysian practice before and after CL(A)A 1984

Before CL(A)A 1984:

• retiring age - age of victim - 1/3 of the difference (see

Murtadza v Chong Swee Pian [1980] 1 MLJ 216); Tan Cheong
Poh & Anor v Teoh Ah Keow (CA) [1995]3 MLJ 89
General Paper 15

• Victim has already attained 55 years: Teh Hwa Seong v Chop

Lim Chin Moh [1981] 2 MLJ 341.

After CL(A)A 1984:

• see section 28A(2)(c)(i) of CLA 1956 and Tan bin Hairuddin v
Bayeh a/l Belalat [1990] 2 CLJ 773
• Osman Effendi Mahmud & Anor v Mohd Noh Khamis [1998] 5
CLJ 510
• Heng Poh Keat & Anor v Aphissit Sea Wong [2001] 3 AMR 2927
(HC)

Multipliers after CL(A)A 1984:

• see section 28A(2)(d) of the CLA 1956 which provides that in
assessing damages for loss of future earnings the Court shall
take into account that:

➢ in the case of a person who was of the age of thirty years

or below at the time when he was injured, the number of
years' purchase shall be 16; and

➢ in the case of any other person who was of the age range
extending between thirty-one years and fifty-four years at
the time when he was injured, the number of years'
purchase shall be calculated by using the figure 55, minus
the age of the person at the time when he was injured
and dividing the remainder by the figure 2.
o See Tan bin Hairuddin v Bayeh a/l Belalat [1990] 2
CLJ 773.
o Ibrahim bin Ismail & Anor v Hasnah bte Puteh Imat
[2004] 1 MLJ 525
o Noraini Omar & Anor v Rohani Said & Another
Appeal [2006] 1 CLJ 895

Multipliers after CL(A) A 2019

• See Section 28A (2) CLA 1956

o The words fifty-four years is substituted by the words
fifty-nine-years
o The words fifty-five years is substituted by the words
sixty years
o The words “figure 55” is substituted by the words “figure
60)
o The words “was in good health but for injury and” is
delete)
➢ "Lost years" before and after CL(A)A 1984
General Paper 16

o Pickett v BRE Ltd [1980] A.C. 136

o Loo Khoo Chin & Loo An Mooi & Anor v Tan Cheng
Hang & Ors [1997] 1 CLJ 109
o Lee Cheng Yee v Tia Soon Siang & Anor [2004] 1
CLJ 797

(vi) Multiplicand
• What were his annual earnings less tax?

• May overtime and part-time earnings be included?

o Batumalee a/l Masilamani & Anor v Thong Chan
Leng [2003] 4 MLJ 391

• Prospects of increase and promotion?

Before CL(A)A 1984:
o Lai Chi Kay v Lee Kuo Shin [1981] 2 MLJ 167
o Ratnasingam (supra)

o Nordin bin Hj Abdul Wahab v Mohamed Salleh

[1986] 2 MLJ 294.

After CL(A)A 1984: see section 28A(2)(c) (ii) CLA 1956

which reads:
"only the amount relating to his earnings as aforesaid at
the time when he was injured and the Court shall not take
into account any prospect of the earnings as aforesaid
being increased at some time in the future".
o Marappan v Siti Rahmah [1990] 1 MLJ 99; [1989] 1
CLJ 252 (High Court)
o Chang Ming Feng & Anor v Jackson Lim @ Jackson
ak Bajut [1999] 1 MLJ 1

• Deduction of living expenses

Before CL(A)A 1984: no rule that living expenses must

be deducted except in the case of "lost years" (see
Pickett, supra)

After CL(A)A 1984 the court is required to take into

account "any diminution" of future loss "by such sum as is
proved or admitted to be the living expenses of the
plaintiff at the time he was injured".
o See the approach of the High Court in Siti Rahmah
General Paper 17

(supra at p 257) and on appeal, (supra at p 101) by

the Supreme Court.
o See also Harcharan Singh v Hassan [1990] 2 CLJ
393; Chan Sau Chuan v Choi Kong Chaw etc [1991]
1 CLJ 297;
o Chang Chong Foo v Shivanathan [1992] 2 MLJ 473
(Supreme Court);
o Tey Chan & Anor v SEA Insurance Bhd [1993] 3
M.L.J. 760.

• Unable to work: Lim Poh Choo (supra)

o Able to do minor work only: Lim Eng Kay v Jaafar

bin Mohamed Said [1982] 2 MLJ 156

• Court refused to deduct living expenses since there was

no admission nor proof of same: See Abdul Ghani bin
Hamid v Abdul Nasir bin Abdul Jabbar & Anor (1995) 4
CLJ 317.

• "Annuity" or "actuarial" tables - "what sum when invested

at 5% p.a. will provide a monthly payment of $X over Y
years?" See Rutter pp 765-767.

Before CL(A)A 1984: after both factors determined, use

of annuity tables: see Lai Wee Lian v Singapore Bus
Service [1984] 1 MLJ 325

o Lai Wee Lian v Singapore Bus Service [1984] 1 MLJ

325 (doubts over use of annuity tables); Ahmad
Nordin v Eng Ngak Hua & Ors [1985] 2 MLJ 431 (use
confirmed).

After CL(A)A 1984: direct multiplication (see Marappan v

Siti Rahmah [1990] 1 MLJ 99).

(vii) Loss of future earnings for young children

Before CL(A)A 1984: see Jamil bin Harun v Yang

Kamsiah [1984] 1 MLJ 217; Yang Yap Fong v Leong Pek
Hoon [1987] 2 MLJ 201.

After CL(A)A 1984: see section 28A(2)(c)(i) CLA 1956

which reads:
General Paper 18

"that in the case of a plaintiff who has attained the age of

fifty-five years or above at the time when he was injured,
no damages for such loss shall be awarded and in any
other case, damages for such loss shall not be awarded
unless it is proved or admitted that the plaintiff was in
good health but for the injury and was receiving earnings
by his own labour or other gainful activity before he was
injured."

o Tan Kim Chuan v Chandu Nair [1991] 1 MLJ 42 (a

twelve-year-old schoolboy)

(viii) Adults who were not working at the time of the injury

Before CL(A)A 1984: see Lai Chi Kay v Lee Kuo Shin [1981] 2
MLJ 167

After CL(A)A 1984: see section 28A(2)(c)(i) (supra) and

Marappan v Siti Rahmah (supra)

(d) Loss of earning capacity

(i) applicable where there is a real risk that P will lose his present job
before the estimated end of his working life.
o Azizi Amran v Hizzam Che Hassan [2006] 3 CLJ 821

(ii) distinguished from loss of future earnings.

o Chan Sau Choon v Choi Kong Chaw [1991] 1 CLJ 297

(iii) See the following cases:

o Moeliker v Reyrolle & Co. Ltd [1977] 1 All E.R. 9 (see p. 15 of
the judgment)
o Pengarah Institut Penyelidikan Perubatan v Inthra Devi [1988]
1 MLJ 19 (see p. 21 of the judgment)
o Krishnan & Anor v Chow Wing Khuan [1987] 2 MLJ 691 (see p.
692 of the judgment).
o Yang Yap Fong v Leong Pek Hoon [1987] 2 MLJ 201
o Mohd Yusof bin Abdul Ghani v Tee Song Kee & Anor (1995) 3
CLJ 738
o Chai Yee Chong v Lew Thai [2004] 2 MLJ 465

(iv) After the CL(A)A 1984

• Dirkje v Mohd Noor bin Baharom & Ors [1990] 3 MLJ 103
appears to decide that this head is not affected by the CL(A)A
General Paper 19

1984. The injured person in that case was once working but
was on no pay leave at the time she was injured. Damages
were awarded under this head.

• In Tan Kim Chuan's case (supra) it was held that a plaintiff

not receiving earnings at the time of his injury can no longer
claim under this head. Both are Supreme Court cases.

(e) Future care expenses/care by family members

(i) future nursing care

• Udhaya Kumar a/l Karuppusamy & Anor v Penguasa Hospital
Daerah Pontian & Ors [2004] 2 MLJ 661
• Bujang Mat & Anor v Lai Tzen Hai & Anor [2004] 4 CLJ 127

(ii) future medical care

• Jamil bin Harun v Yang Kamsiah [1984] 1 MLJ 217 (P.C.)
• Abdul Ghani bin Hamid v Abdul Nasir bin Abdul Jabbar & Anor
(1995) 4 CLJ 317
• Seah Yit Chooi v Singapore Bus Service (1973) Ltd & 2 Ors
(1990) 2 CLJ 901
• Inas Faiqah Binti Mohd Helmi v Kerajaan Malaysia [2016] 2 MLJ
1
(iii) multiplier

(iv) care by family members

Damages recoverable by victim in his claim

• Donnelly v Joyce [1974] Q.B. 454 (mother gave up job to care
for victim)
• Croke v Wiseman [1981] 3 All E.R. 852
• Ahmad Daman Huri v Koo Chin Yau [1990] 3 MLJ 53
• Marappan & Anor v Siti Rahmah bte Ibrahim (1990) 1 MLJ 99

(v) consortium; household work by husband

• Chong Pik Sing & Anor v Ng Mun Bee & Ors (1985) 1 MLJ 433
• Bas Mini Muhibbah Sdn Bhd v Abdullah bin Salim [1983] 2 MLJ
405 (H.C.) ($3,000 for loss of consortium)
• Inthra Devi (supra) ($10,000 to husband who had to do the
household work)
• Hum Peng Sin & Ham Lin Kin (suami kepada Chiam Kao Kee @
Cheah Kao Kee simati sebagai dependan) v Lim Lai Hoon &
Anor [2001] 4 AMR 4170 (CA)
General Paper 20

(vi) by mother:
• Wong Li Fatt William (an infant) v Haidawati bte Bolhen (1994)
2 M.L.J. 497
(f) Interest

(i) Awarded at specified rates on all damages except on damages for

future loss and future expenses.

(ii) See Murtadza v Chong Swee Pian [1980] 1 MLJ 216 per Chang Min
Tat, F.J.:

"On the interest that should be awarded, ever since the decision of
the Court of Appeal in England in Jefford v Gee at page 1212 which
has been consistently followed by the courts in England and here,
interest has been awarded at one half the appropriate rate on
special damages from the date of the accident to date of trial and on
general damages for pain and suffering and loss of amenities at the
appropriate rate from the service of the writ, but no interest is
awarded on loss of future earnings. For this reason, awards on a
global basis as was ordered in this case are wholly inappropriate for
the imposition of interest. In Cookson v Knowles, the Court of
Appeal took a different attitude and refused to award interest on the
sum assessed for pain and suffering and loss of amenities on the
theory that any damages were now normally subject to increase to
take care of inflation, and there was no occasion to award interest
as well. The House of Lords in Pickett v British Rail Engineering Ltd.
disapproved of this change. With this disapproval, the position with
regard to interest reverts to Jefford v Gee. In Foong Nan v
Sagadevan at page 26, this court followed Jefford v Gee, supra, and
put the appropriate rate at 6%. In the absence of any advice of any
increase in this rate, I propose to continue to accept this rate."

Note: Present appropriate rate is 8% p.a.

(iii) Whether court should itemise interest for special and general
damages
• Santhanalectchumy v Zainal bin Saad & Anor (1994) 4 CLJ 192

(g) Deductions

(i) Certain receipts by the plaintiff on account of his injury are not
deductible from the damages to be awarded to him.

• Section 28A (1) CLA 1956

General Paper 21

"In assessing damages recoverable in respect of personal injury

which does not result in death, there shall not be taken into
account -
(a) any sum paid or payable in respect of the personal injury
under any contract of assurance or insurance, whether
made before or after the coming into force of this Act;

(b) any pension or gratuity, which has been or will or may be

paid as a result of the personal injury; or

(c) any sum which has been or will or may be paid under any
written law relating to the payment of any benefit or
compensation whatsoever in respect of the personal
injury".

o K.R. Taxi Service Ltd & Anor v Zaharah & Ors [1969]
1 MLJ 49 (meaning of "gratuity").
o Ward v Malaysian Airlines System [1991] 3 MLJ 317.
o Tai Siat Fah (the Lawful Window & Dependant of
Chang Keng Looy, Deceased) & 4 Ors v The Lawful
Personal Representative of Badrul Hisham b Hashim
(1995) 2 CLJ 649
o Sin Hock Soon Transport Sdn Bhd & Anor v Low King
Ban [2006] 5 CLJ 265
o Soo Cheng Lin v Dr Kok Choong Seng & Anor Court
of Appeal [2016] 8 CLJ 368 – It was held that
section 28A (1)(a) CLA 1956 states that damages
recoverable from personal injury and any sum
payable in respect of the personal injury under any
contract of assurance or insurance. Giving these
words their plain and natural meaning, they include
medical expenses paid by Plaintiff’s insurers as it
could not be disputed that the claimed medical
expenses were damages recoverable from Plaintiff’s
personal injury and the payment made by the
Plaintiff’s insurers was money paid under contract of
insurance. The Plaintiff had in his wisdom taken out
a private medical insurance and had paid the
necessary premium to be covered. This was a
contractual arrangement between the Plaintiff and
his insurance company.

(ii) Is Income Tax deductible?

• Lim Eng Kay v Jaafar bin Mohamed Said [1982] 2 MLJ 156.
General Paper 22

(iii) Are ex gratia payments deductible?

• gifts
• medical bills
o McGregor on Damages
o Lim Kiat Boon & Ors v Lim Seu Kong [1980] 2 MLJ 39.

9. Earnings in breach of the law

(a) May earnings in breach of the law be taken into account?

o Kang Bark Teng & Anor. v Lee Kwee Lim [1952] MLJ 27;
o Tan Chooi Thin & Anor. v Teo Whee Hong [1953] MLJ 203;
o Yaakub Foong v Lai Mun Keong & Ors. [1986] 2 MLJ 317
o Chua Kim Suan (Administratrix of the estate of Teoh Tek Lee, decd)
v Govt of Malaysia [1994] 1 MLJ 394 (no distinction to be made
between minor and major breaches)
o Tan Lye Seng & Anor v Nazori Teh & Anor [1998] 3 CLJ 466
o Putri Ayu bt Ismail v Raulammah Nooraiah [2016] 10 MLJ 548

(b) Illegality capable of being legitimised. Court allowed the earnings:

o Nazori bin Teh & Anor v Tay Lye Seng & Anor (1995) 4 CLJ 740
o Wakil Diri Bagi Harta Pusaka Atas Rosli Md Nor (Simati) & Ors v TP
Saffeer & Anor [1998] 4 CLJ 241

10. Contributory negligence

(a) Damages will be reduced if contributory negligence is established.

• Section 12 Civil Law Act 1956
• Loh Chee Keong v Syarikat Bee Huat Bhd. [1982] 2 M.L.J. 184;
• Pua Lai Ong v Kassim bin Yunus & Anor [1993] 3 CLJ 656.
• Mohd Zulkhairi Abd Ghapar v Quek Chiam Kee [2004] 5 MLJ 6
• Sukatno v Lee Seng Kee [2009] 3 MLJ 306
• Siti Athirah Mohd Sapuan v Razanatul Ain Hassan [2015] 6 CLJ 295

(b) Infant no contribution

• Nathan on Negligence by Justice Dato' R.K. Nathan
• Mohamed Safuan bin Wasidin v Mohd Ridhuan bin Ahmad [1994] 2
MLJ 187
• Wong Li Fatt William (an infant) v Haidawati bte Bolhen & Anor
[1994] 2 MLJ 497
General Paper 23

11. Duty of plaintiff to mitigate

• Yoong Leok Kee Corp. Sdn Bhd v Chin Thong Thai [1981] 2 MLJ 21
(discharged himself from hospital against medical advice)
• Ward v Malaysian Airlines System, supra.
• Batumalee a/l Masilamani & Anor v Thong Chan Leng & Anor [2003] 4 CLJ
95 (HC)

12. May plaintiff be compelled to use government hospital?

• Yaakub Foong v Lai Mun Keong & Ors. [1986] 2 MLJ 317
• Lim Poh Choo (supra) 2 All E.R. 910, 918
• PIPP v Inthra Devi (supra)
• Chong Chee Khong & Anor v Ng Yeow Hin [1997] 4 CLJ Supp. 17
• Chai Yee Chong v Lew Thai [2004] 2 MLJ 465
• Batumalee a/l Masilamani & Anor v Thong Chan Leng & Anor [2003] 4
MLJ 391
• Charle @ Charlie bin Donatus v Azmie b Kasim [a minor suing by his
father and next of friend Kassim bin Abu Bakar] 2013 7 MLJ 67
• Inas Faiqah Binti Mohd Helmi v Kerajaan Malaysia [2016] 2 MLJ 1

13. Is the cost of traditional medicine recoverable?

• Seah Yit Chen v Singapore Bus Service (1978) Ltd [1990] 3 MLJ 144 (the
cost of traditional Chinese medicine was reasonable in the circumstances).
• Rohgetana Mayathevan v Dr Navin Kumar [2017] 4 MLJ 102

14. Married Women

• Section 4A of the Married Women Act 1957 (Act 450) which reads:

"4A. A husband or a wife shall be entitled to sue each other in tort

for damages in respect of injuries to his or her person, as the
case may be, in the like manner as any other two separate
individuals."

• Adnan Mat Jidin & Anor v Irwan Wee Abdullah & Anor [1997] 3 CLJ 181
CA
• Union Insurance (M) Sdn Bhd v Chan You Young [1999] 1 MLJ 593

15. Effect of plea of guilty in a criminal court

• Chock Kek Ling v Patt Hup etc Bhd [1966] 1 MLJ 120
• Chang Chong Foo v Shivanathan [1992] 2 MLJ 473
General Paper 24

➢ Medical expenses incurred in Singapore

➢ Should exchange rate be the date of accident or date of judgment

o Wong Li Fatt William (an infant) v Haidawati bte Bolhen & Anor
(1994) 2 MLJ 497

16. Whether trip overseas for operation necessary

(a) To United State of America
• See Dharam Singh Dhillon v Ibrahim bin Shaaban & Anor (1995) 4
CLJ 207

(b) To Singapore
• See Chong Kam Siong v Herman bin Baharuddin (1995) 2 CLJ 43

III. FATAL ACCIDENTS

1. Death in relation to tort

(a) Death may extinguish liability (see section 8(1) & (3) CLA 1956).
(b) Death may create liability (see section 7 CLA 1956).

2. Death creating liability

Two actions:

(a) claim for dependency (brought by dependants within the meaning

under section 7 of CLA for the benefit of themselves).
(b) claim for damages for the estate of the deceased (brought by personal
representative for the benefit of the deceased's estate).
• Loo Khoo Chin and Loo An Mooi & Anor v Tan Cheng Hang & Ors
[1997] 1 CLJ 109

3. Nature of the dependency claim

(a) meaning

(b) its development

4. Claim for dependency

General Paper 25

(a) Who are dependants?

(i) Meaning of "dependant" and "loss of support" considered in:

• Muhamad Hashim v Teow Teik Chai & Anor [1996] 1 CLJ 615
• Zulkifli Ayob v Velasini K Madhavan & Anor [2000] 1 CLJ 117

(ii) Section 7(2) and section 7(11) CLA 1956.

• Payne-Collins v Taylor Woodrow [1975] Q.B. 300
• K v JMP Co. Ltd. [1975] 1 All E.R. 1030
• Chan Chin Ming v Lim Yok Eng [1994] 3 MLJ 233
• Ali Tan & Ors v Mazlan Bidin [COA:12-6-2012] [Civil Appeal: B-
04-222-2011]

(b) Deceased himself must have been able to sue

(c) Method of assessing damages

• Hum Peng Sin @ Ham Lin Kin (suami kepada Chiam Kao Kee @
Cheah Kao Kee simati sebagai dependan) v Lim Lai Hoon & Anor
[2001] 4 AMR 4171 (CA)
• Rohani bt Said v Noraini bt Omar & Anor [2002] 3 AMR 2672 (HC)

(i) Generally, "How long, and to what extent would he, had he lived,
have been likely to provide for the dependant".

(ii) Necessary to determine actual pecuniary loss and the years of

purchase.
• See Chua Kim Suan v Government of Malaysia [1994] 1 MLJ
394 SC.
• Takong Tabari @ Takung Tabari v Government of Sarawak &
Ors (1994) 4 AMR 2768, (1998) 4 CLJ 589

(iii) Victim committing suicide after accident - claim for dependency.

• Sivakumaran a/l Selvaraja & 2 Ors v Yu Pan & Anor (1994) 4
CLJ 1067

(d) Pecuniary loss

(i) There must be actual loss of dependency.

• Yap Ami v Tan Hui Pang [1982] 2 MLJ 316
• Chan Chin Ming, supra (unmarried son gave RM750 a month to
mother; mother spent RM375 on herself and RM375 on her
other children. What was her actual loss of support?)
General Paper 26

(ii) May include money and money's worth (services).

• See Mehmet v Perry [1977] 2 All E.R. 529
• Chong Pik Sing v Ng Mun Bee [1985] 1 MLJ 433 ($500 for
wife's services)
• Hay v Hughes [1975] 1 All E.R. 257
• Regan v Williamson [1976] 2 All E.R. 241
• K v JMP Co. Ltd. [1975] 1 All E.R. 1030

Services after CL(A)A 1984: Section 7(3)(iii) CLA 1956 - no

damages to parent for loss of services of child or to husband for
deprival of services or society of wife.

(iii) Computation of the loss

• the conventional mode

o Rebecca Mathews v Syarikat Kerjasama etc Bhd [1990] 1
MLJ 443
o Low Suit etc v Lim Sun Hiang [1992] 2 CLJ 1035

(iv) Prospects of increase

• Parvathy v Liew Yoke Khoon [1984] 1 MLJ 183
After CL(A)A 1956: See section 7(3)(iv)(b) of CLA 1956: prospects
of increase to be ignored.

(v) No damages for solatium and for loss of consortium

• Chong Pik Sing v Ng Mun Bee [1985] 1 MLJ 433.
• Section 7(3)(iii) CLA 1956.

Whilst agreeing that section 7(3) CLA has done away with the claim
for loss of consortium the Court of Appeal has allowed the surviving
husband to claim for the monetary loss by the direct loss of his wife.
• Neo Kim Soon v Subramaniam (1996) 1 CLJ 731 CA.
• See Hum Peng Sin @ Ham Lin Kin (Suami kepada Chiam Kao
Kee @ Cheah Kao Kee (Simati) sebagai defendan) v Lim Lai
Hoon & Anor [1996] 2 CLJ 656
• KDE Recreation Bhd v Low Han Ong & Ors [2006] 1 CLJ 1097

(vi) Support from deceased's pension while he was alive.

• See Lee In Fong v Zaharah bt Johan [1992] 4 CLJ 2108.

(e) Years of purchase or multiplier

Principles to be applied at Common Law.

General Paper 27

(i) What was the deceased's age?

(ii) Who is the claimant? For how long will he or she need support?

• See the following cases decided by applying the law before

CL(A)A 1984:
o Lee Ban Hoo v S. Veeriah [1982] 2 MLJ 188 (Award may
not only take into account the age of the deceased but
also of the dependants)
o Chong Khee Sang v Pang Ah Chee [1984] 1 MLJ 377
(deceased a bachelor)
o Parvathy v Liew Yoke Khoon [1984] 1 MLJ 183 (prospects
of increase)
o Chong Sow Ying v Official Administrator [1984] 1 MLJ 185
(6 years purchase although deceased was aged 61 years)
o Choh Nyee Ngah v Syarikat Beruntong Sdn Bhd [1989] 3
MLJ 112 (cause of action accrued on 17.6.1983; deceased
would have been 47 years old at the time of trial - 5 years
purchase)

(iii) Multipliers after CL(A)A 2019

Section 7(3)(iv)(d) CLA - in the case of a person who was of the
age of thirty years and below at the time of his death, the number of
years' purchase shall be 16; and in the case of any other person who
was of the age range extending between thirty one years and fifth-
nine years at the time of his death, the number of years' purchase
shall be calculated by using the figure 60 minus the person's age at
the time of death and dividing the remainder by the figure 2.

• Chan Chin Ming, (supra) (25-year-old unmarried son providing

support to his mother. Should the multiplier of 16 years be
used? Should the approach in Chong Khee Sang, (supra) be
adopted?)
• Latif bin Che Ngah & Anor v Maimunah bt Zakaria [2002] 4
AMR 4262 (HC)
• Muniandy a/l Periyan & Anor v Eric Chew Wai Keat & Anor
[2003] 4 AMR 608 (HC)
• Ibrahim bin Ismail & Anor v Hasnah bte Puteh Imat & Anor
and Another appeal [2004] 1 MLJ 525
• Noraini Omar & Anor v Rohani Said & Another Appeal [2006]
1 CLJ 895
• Cheng Bee Teik & Ors v Peter Selvaraj & Anor [2005] 2 CLJ
839

(iv) Support from earnings after deceased attained 60 years

General Paper 28

• Chong Sow Ying, supra.

After CL(A)A 1984: See section 7(3)(iv)(a) CLA 1956 - if the deceased
had attained age of 60 years, loss of earnings for the period after his
death cannot be taken into account. See also Lee In Fong's case (supra).

(f) Loss must be a real one

(i) Prospective dependency/loss of support

• Barnett v Cohen [1921] 2 K.B. 461 (child aged 4) (up to
dependant to prove reasonable probability of loss of
dependency; in the circumstances not proven); Hassan bin
Mohamad & Anor v Teoh Kim Seng [1987] 1 MLJ 328; Taff Vale
Rly. Co. v Jenkins [1913] A.C. 1 (sixteen-year-old girl,
apprentice dress maker, learning not earning);
• Chiang Boon Fatt v Lembaga Kemajuan Negeri Pahang [1983]
1 MLJ 89 (deceased about to enter university).

After CL(A)A 1984: See -

• Section 7(3)(iv)(a) CLA 1956 which provides that the deceased
must be receiving earnings by "his own labour" or other
"gainful activity".
• Latif bin Che Ngah & Anor v Maimunah bt Zakaria [2002] 4
AMR 4262 HC

(ii) Illegal earnings and speculative loss

• Burns v Edman [1970] 2 Q.B. 541 (deceased's entire
earnings from theft) Chua Kim Suan (Administratrix of the
estate of Teoh Teik Lee, decd) v Govt of Malaysia [1994] 1
MLJ 394
• Davies v Taylor [1974] A.C. 207.

(g) Loss must be directly connected to a family relationship

• Sykes v North Eastern Railway Co. (1875) 44 LJCP 191
• Burgess v Florence Nightingale Hospital for Women [1955] 1 All E.R.
511
• Malyon v Plummer [1964] 2 All ER 344 (CA)

(h) Prospects of remarriage of the deceased's widow/widower

• Chan Yoke May v Lian Seng Co. Ltd. (1962) MLJ 243

Position after CL(A)A 1984:

General Paper 29

(i) Apportionment
• Ahmad Nordin v Eng Ngak Hua [1985] 2 MLJ 431
• Rebecca Mathews v Syarikat Kerjasama etc, supra.

(j) Health of the deceased

• Moores v Co-operative Wholesale Society Ltd (CA) Times, 9 May
1955

After CL(A)A 1984: S. 7(3)(iv)(a) of CLA 1956 - loss of earnings shall be

taken into account "if it is proved or admitted" that deceased was in "good
health" and "was receiving earnings by his own labour" or other "gainful
activity."

After CL(A) A 2019: the following words “was in good health but for the
injury that caused his death” is deleted

(k) After multiplicand and multiplier is determined, should direct multiplication

or the annuity tables be used?
• Chan Chin Ming, supra.

(l) Pre-trial and post-trial

• Zulkifli Ayob v Velasini K Madhavan & Anor [2000] 1 CLJ 117

(m) Bereavement
• Claim only for the benefit of the spouse or parent/parents of
unmarried minor child. See s. 7(3A) - (3E).
o Noor Famiza bte Zabri & Anor v Awang bin Muda & Anor
(1994) 1 MLJ 599
o Ibrahim bin Ismail & Anor v Hasnah bte Puteh Imat & Anor and
Another appeal [2004] 1 MLJ 525

• Whether part and parcel of general damages

o Santhanaletchumy v Zainal bin Saad & Anor (1994) 4 CLJ 192

• Is, there a presumption that a person under 18 is unmarried? NO,

see section 10 Law Reform (Marriage and Divorce) Act 1976 (Act
164)
o Hooi Leong v Ooi Pay Yeong (1995) 4 CLJ 229

(n) Contributory Negligence

General Paper 30

• Lim Chai Onn v Normah bte Ismail [1994] 3 MLJ 105where James
Foong J did notfollow the Supreme Court decision in Veronica
Joseph In Balachandran a/l Samy & Anor v Chew Man Chan @ Chew
Ah Yeow & Anor (1996) 1 CLJ 169. Vincent Ng J however chose
to follow the decision of Veronica Joseph.
• Minachi v Mohd Yusof bin Zakaria [1978] 2 MLJ 256
• Veronica Joseph v Tu Kon Lim [1987] 1 CLJ 81
• See Rubaidah Dirin v Ahmad Ariffin [1997] 1 CLJ 447 CA - above
case overruled
• Muniandy a/l Periyan & Anor v Eric Chew Wai Keat & Anor [2003] 4
AMR 608

(o) Economic Loss

What is it? In an action for negligence between parties who have no

contractual relationship, claims for pure economic loss would not be
allowed
o Teh Khem On v Yeoh & Wu Development Sdn Bhd (1995) 2 MLJ 663
o Allan Bryan v Judith Anne Maloney (1995) 2 C.L.J. 503
o Sunrise Bhd & Anor v L & M Agencies Sdn Bhd [1999] 3 MLJ 544

5. Limitation - see section 7(5) CLA

• Loo Khoo Chin &Loo An Mooi & Anor v Tan Cheng Hang & Ors [1997] 1
CLJ 109 - Effect of section 8(3)(b)
• Lee Cheng Yee v Tiu Soon Siang & Anor [2004] 1 CLJ 1

6. Action to be brought in the name of the personal representative (s.

7(2) but see also s. 7(8)).
• Austin & Ors. v Hart [1983] 2 All E.R. 341

7. (a) In determining dependency the following are not to be taken into account
(section 7(3) CLA, proviso):
(i) any sum paid or payable on the death of the person deceased under
any contract of assurance or insurance;

(ii) any sum payable, as a result of the death, under any written law
relating to employees' provident fund;

(iii) any pension or gratuity, which has been or will or may be paid as a
result of the death; or
General Paper 31

(iv) any sum which has been or will or may be paid under any written
law relating to the payment of any benefit or compensation
whatsoever, in respect of the death.
• K.R. Taxi Service Ltd case, (supra).
• Pushpa a/p Meenasundarom & Ors v Awai bin Hassan & Ors
[1995] 1 MLJ 510 (whether s. 42 of Employees' Social Security
Act 1969 precludes a claim under section 7 of CLA 1956).

(b) Deductions

(i) Income Tax

A Court should regard a figure from any notice of assessment of
income tax as res inter alia and consider the evidence with an open
mind.
• Chua Kim Suan (Administratrix of the estate of Teoh Teck Lee,
decd) v Government of Malaysia (1994) 1 M.L.J. 394 SC

(ii) Other deductions

• See Chan Yoke May v Lian Seng Co. Ltd. supra.
• TakongTabari @ Takung Tabri v Government of Sarawak & Ors
(1998)4 AMR 3988

8. Damages for the estate

(a) Action by the personal representative

(b) Limitation period: 6 years

(c) The position before Pickett v British Rail Engineering Ltd [1980] A.C. 136:

(i) special damages;

(ii) funeral expenses;

(iii) pain and suffering (where applicable) - see Thangavelu v Chia Kok
Bin [1981] 2 MLJ 277;

(iv) damages for loss of expectation of life (a fixed sum - see Teoh Kim
Seng v Hassan [1987] 2 MLJ 209).

(d) After Pickett's case - damages for loss of earnings in the "lost years".
• Kandalla v B.E.A.C. [1981] Q.B. 158;
• Gammell v Wilson [1982] A.C. 27 and the authorities discussed
General Paper 32

thereinThangavelu v Chia Kok Bin [1981] 2 MLJ 277;

• Noorianti v Tang Lei Nge [1990] 2 MLJ 242;
• Lita Maddox v Calito C Guinto & Anor [1987] 2 MLJ 757
• Loo Khoo Min and Loo An Mooi & Anor v Tan Cheng Hang & Ors
[1997] 1 CLJ 109
• Lee Cheng Yee v Tiu Soon Siang & Anor [2004] 1 CLJ 1

(e) Position after CL(A)A 1984

Section 8(2)(a) CLA 1956 as amended reads:

"Where a cause of action survives as aforesaid for the benefit of the

estate of a deceased person, the damages recoverable for the benefit of
the estate of that person -

(a) shall not include any exemplary damages, any damages for
bereavement made under subsection 3(A) of section 7, any
damages for loss of expectation of life, and any damages for loss
of earnings in respect of any period after that person's death."

IV. PROPERTY DAMAGE

All damages to property including motor vehicles and all claims relating to
such damages. To advise on the necessary proof needed.
• Abdul Hamid v Tan Chu Kim (1969) 2 MLJ 215
• Motor & General Insurance Sdn Bhd v Pok Siong Kok & Ors (1988) 3 MLJ
318
• Chip Fong (Kuala Lumpur) Sdn Bhd & Ors v Guardian Royal Exchange
Assurance (Malaysia) Sdn Bhd (1992) 1 MLJ 598
• Lim Seong Choon & Anor v R. Rajaratnam (1990) 3 MLJ 252

V. ECONOMIC LOSS

1. Federal Court
• Tenaga Nasional Malaysia v Batu Kemas Industri Sdn Bhd [2018] 6 CLJ
683
• Lok Kok Beng v Loh Chiak Eong [2015] 4 MLJ 734
• Majlis Perbandaran Ampang Jaya v Steven Phoa Cheng Loon & Ors [2006]
2 MLJ 389
• On duty of care in claims for pure economic loss - The Co-Operative
Central Bank Ltd v KGV & Associates Sdn Bhd [2008] 2 MLJ 233
• UDA Holdings Bhd v Koperasi Pasaraya Malaysia (M) Bhd and other
General Paper 33

appeals [2009] 1 MLJ 737

2. Court of Appeal
• Arab-Malaysian Finance Bhd v Steven Phoa Cheng Loon & Ors and other
appeals [2003] 1 MLJ 567 (appealed to Federal Court)
• Lim Teck Kong v Dr Abdul Hamid Abdul Rashid & Anor [2006] 3 MLJ 213
• KGV & Associates Sdn Bhd v The Co-Operative Central Bank Ltd [2006] 5
MLJ 513 (appealed to Federal Court)
• UDA Holdings Bhd v Koperasi Pasaraya Malaysia Bhd and other appeals
[2007] 6 MLJ 538 (appealed to Federal Court)

3. High Court
• Kerajaan Malaysia lwn Cheah Foong Chiew dan Lain-Lain [1993] 2 MLJ
439
• Dr Abdul Hamid Abdul Rashid & Anor v Jurusan Malaysia Consultants
(Sued as a Firm) & Ors [1977] 3 MLJ 546
• Pibla Trading & Agency v South East Asia Insurance Bhd & Anor [1998] 2
MLJ 53
• Sunrise Bhd & Anor v L & M Agencies Sdn Bhd [1999] 3 MLJ 544Steven
Phoa Cheng Loon & Ors v Highland Properties Sdn Bhd & Ors [2000] 4
MLJ 200 (appealed)

4. United Kingdom
• Hedley Bryne v Heller [1964] AC 465
• Spartan Steel v Martin [1973] QB 27
• Anns v Merton LBC [1978] AC 728
• Caparo Industries plc v Dickman [1990] 1 All ER 568
• Murphy v Brentwood [1990] 2 All ER 908 (House of Lords)
• Spring v Guardian [1994] 3 All ER 129 (House of Lords)
• Henderson v Merrett [1994] 3 All ER 506 (House of Lords)
• White v Jones [1995] 1 All ER 691 (House of Lords)
• Invercargill CC v Hamlin [1996] 1 All ER 756 (Privy Council)
• Williams v Natural Life Health Foods [1998] 1 WLR 830 (House of Lords)
• McFarlane v Tayside [1999] 3 WLR 1301 (House of Lords)
• Her Majesty's Commissioner of Custome & Excise v Barclays Bank plc
[2006] UKHL 28 (House of Lords)
General Paper 34

B. CONTRACT

I. INTRODUCTION

1. Present Position

Contracts Act 1950 (Act 136) applies throughout Malaysia; broadly based on
the Indian Contract Act 1872.

2. Application of English Law

(a) Sections 3 and 5 Civil Law Act 1956 (Act 67) "other provisions"
• Tan Mooi Liang v Lim Soon Seng & Ors (FC) [1974] 2 MLJ 60

(b) Whether Contracts Act 1950 (‘CA’) is a code

• Ooi Boon Leong & Ors v Citibank NA (PC) [1984] 1 MLJ 222
• Position in India: See Irrawaddy Flotilla Co Ltd v Bugwandass (PC)
(1890) 18 lA 121

(c) Where there is express provision

• Bhagher Singh v Chanan Singh & Anor (1961) 27 MLJ 328

(d) Where there is no express provision

• Wotherspoon JM & Co Ltd v Henry Agency House [1962] MLJ 86
• Royal Insurance Group v David (FC) [1976] 1 MLJ 128

3. Interpretation of Contracts Act 1950 (Act 136)

(a) Use of English Cases

• Ramanandi Kuer v Kalawati Kuer (1927) 55 1A 18
• Port Swettenham Authorityv TW Wu & Co (M) Sdn Bhd (PC) [1978]
2 MLJ 137
• Government of Malaysia v Gurcharan Singh [1971] 1 MLJ 211

(b) Illustrations:
• Mahomed Syedol Ariffin v Yeoh Ooi Gark (PC) [1916] 2 AC 575

4. Contracting out
• Ooi Boon Leong & Ors v Citibank NA (PC) [1984] 1 MLJ 222
• SEA Housing Corp Sdn Bhd v Lee Poh Choo (FC) [1982] 2 MLJ 31
General Paper 35

II. FORMATION OF A CONTRACT

1. "Proposal" section 2(a) CA

(a) cf. English law "offer"

• Preston Corp Sdn Bhd v Edward Leong [1982] 2 MLJ 22

(b) Auctioneers's invitation for bids

• M & J Frozen Food Sdn Bhd & Anor v Siland Sdn Bhd & Anor [1994]
1 MLJ 303
• Sinar Wang Sdn Bhd v Ng Kee Seng [2005] 2 MLJ 42 (CA)
• Eckhardt Marine GMBH v Sheriff, High Court of Malaysia, Seremban
& Ors [2001] 4 MLJ 49

2. Manner of acceptance - section 7 CA

• Brogden v Metropolitan Rly Co (1877) 2 App Cas 666

• Section 7(b) - if acceptor deviates from form prescribed by proposer,
proposer to protest.
• Low Kar Yit & Ors v Mohd Isa & Anor [1963] MLJ 165
• cf. English Law: Manchester Diocesan Council of Education v Commercial
& General Investments [1970] 1 WLR 241, 246
o Inter Diam Pte Ltd v PJ Diamond Centre Sdn Bhd [2002] 4 CLJ 715
(HC)
o TT Martech Sdn Bhd v Wing Construction (M) Sdn Bhd [2005] 2 MLJ
463

3. Communication of acceptance and revocation

(a) Sections 4(2) and 4(3) CA - Different times when communication is

complete.
• Ignatius v Bell [1913] 2 FMSLR 115
• Dunmore (Countess of) v Alexander (1830) 9 Shaw 190 (Scotland)
• Lim Keng Siong & Anor v Yeoh Ah Tee [1983] 2 MLJ 39
• Lee Chin Kok v Jasmin Arunthuthu Allegakoen & Ors [2000] 4 MLJ
481

(b) Section 6 CA - Failure to fulfil a condition precedent:

• Aberfoyle Plantations Ltd v Khaw Bian Cheng [1960] MLJ 47
• Acceptance 'subject to contract':
General Paper 36

• Charles Grenier Sdn Bhd v Lau Wing Hong (FC) [1997] 1 CLJ 625

(c) 'a formal agreement will be executed':

• Lim Chia Min v Chean Sang Ngeow & Anor [1997] 2 CLJ 337
• Ayer Hitam Tin Dredging Malaysia Bhd v. Y C Chin Enterprises (SC)
[1994] 3 CLJ 133
• Kam Mah Theatre Sdn Bhd v. Tan Lay Soon (SC) [1994] 1 CLJ 9

4. Consideration - Section 2(d) and Section 26 CA

(a) Need not be adequate

(i) Section 26 CA, Explanation 2, Illus. (f)

• Phang Swee Kim v Beh I Hock [1964] MLJ 383
• Sandrifarm Sdn Bhd v Pegawai Pemegang Harta Malaysia
[2000] 2 MLJ 535
• David Wong Hon Leong v Norazman bin Adnan (COA) [1995]
4 CLJ 155

(ii) Section 4(c) Contracts (Amendment) Act 1976

• Universiti Malaya v Lee Ming Chong [1986] 2 MLJ 148

(iii) Section 27(a) Specific Relief Act 1950

(b) Unilateral declaration insufficient to make contract - no contract under

seal
• Guthrie Waugh Bhd v Malaippan Muthucumaru [1972] 1 MLJ 35, 39

(c) Consideration may move from third party

• Section 2(d) CA: "the promisee or any other person"
• cf. English Law - consideration must move from promisee Currie v
Misa (1875) L.R. 10 Ex. 153

(d) Past consideration

(i) Section 2(d) CA: "at the desire of the promisor, the promisee or
any other person has done or abstained from doing ..."

(ii) Section 26(b) CA: "... a person who has already voluntarily done
something for the promisor ..."

(iii) "voluntarily done”:

• Wotherspoon JM & Co Ltd v Henry Agency House [1962] MLJ
General Paper 37

86
• Leong Huat Sawmill (Pte) Ltd v Lee Man See (FC) [1985] 1
MLJ 47

(vi) cf. English law

• General rule that consideration must not be past

o Roscorla v Thomas (1842) 114 ER 496; exception - act
done at the request of promisor Lampleigh v Brathwait
(1615) 80 ER 255
o South East Asia Insurance Bhd v Nasir Ibrahim [1992] 2
MLJ 355

(e) Natural love and affection

• Section 26(a) CA
• Re Tan Soh Sim [1951] MLJ 21
• cf. English law Bret v J.S. & His Wife (1600) 78 ER 987

(f) Payment of lesser sum in satisfaction of obligation to pay larger sum.

• Section 64 CA
• Kerpa Singh v Bariam Singh (FC) [1966] 1 MLJ 38
• "section materially alters the English doctrine of accord and
satisfaction"
• cf. English Law Pinnel'sCase 77 ER 237 and Foakes v Beer (1884) 9
App Cas 605

(g) Compromise agreement

• See Tan Chiw Thoo v Tee Kim Kuay [1997] 1 CLJ 541
• Solid Kitchen Sdn Bhd v Aman Teguh - WICC JV Sdn Bhd & Anor
[2003] 5 MLJ 412 (HC)

(h) Exchange of mutual promises - whether good consideration - Section

2(d) and (e) CA
• Ahmad Zaini bin Japar v TL Offshore Sdn Bhd [2002] 1 AMR 369
(HC)

5. Privity of contract

• English principle that non-party cannot sue on a contract applicable

o Kepong Prospecting Ltd v Schmidt [1968] 1 MLJ 170
o Emar Sdn Bhd v Aidigi Sdn Bhd [1992] 2 MLJ 734
o Badiaddin bin Mohd Mahidin & Anor v Arab Malaysian Finance Bhd
[1998] 1 MLJ 393
General Paper 38

o Boustead Naval Shipyard Sdn Bhd v Dynaforce Corp Sdn Bhd (COA)
[2015] 1 MLJ 284
o Lembaga Kumpulan Wang Simpanan Pekerja v Kesatuan Kakitangan
Lembaga Kumpulan Wang Simpanan Pekerja (FC) [2000] 3 CLJ 81

III. EXTRINSIC EVIDENCE, COLLATERAL CONTRACT

AND EXEMPTION CLAUSES

1. Extrinsic Evidence

• Sections 91 and 92 Evidence Act 1950 (Act 56)

• Tindok Besar Estate Sdn Bhd v Tinjar Co (FC) [1979] 2 MLJ 229, 233
• Tan Chong & Sons Motor Sdn Bhd v Alan McKnight (FC) [1983] 1 MLJ
220, 229
• See also: Keng Huat Film Co Sdn Bhd v Makhanlall (Prop) Pte Ltd (FC)
[1984] 1 MLJ 243, 247
• Paul Murugesu a/l Ponnusamy sebagai Wakil Nalamah a/p Sangapillay (P)
(Simati) v Cheok Toh Gong & 4 Others [1996] 2 CLJ 397
• Petroleum Nasional Berhad v Kerajaan Negeri Terengganu (and another
Appeal) [2003] 5 AMR 696 (CA)

2. Collateral Contract
• J Evans & Sons (Portsmouth) Ltd v Andrea Merzario Ltd [1976] 2 AER 930
• Industrial & Agricultural Distribution Sdn Bhd v Golden Sands Construction
Sdn Bhd [1993] 3 MLJ 433
• Tan Swee Hoe Co Ltd v Ali Hussain Bros [1980] 2 MLJ 16
• Eushun Properties Sdn Bhd & Ors v MBF Finance Bhd [1992] 2 MLJ 137
• Kandasami v Mohamed Mustafa [1983] 2 MLJ 85
• Tan Chong & Sons Motor Co. Sdn. Bhd. v. Alan Mcknight (FC) [1983] CLJ Rep
394

3. Exemption Clauses

(a) Notice must be reasonably sufficient

• Thompson v LM & Rly Co (1930) 1 KB 41
• Malaysian Airlines Bhd v Malini Nathan & Anor [1986] 1 MLJ 330

(b) Construction
• Sharikat Lee Heng Sdn Bhd v Port Swettenham Authority [1971] 2
MLJ 27
General Paper 39

(c) Exclusion of liability for negligent conduct

• Sekawan Guards Sdn Bhd v Thong Guan Sdn Bhd [1995] 1 MLJ
811
• Chong Kok Weng & Anor v Wing Wah Travel Agency Sdn Bhd &
Anor [2003] 5 CLJ 409

(d) Limiting liability for negligence

• Taveechai Marine [1995] 1 MLJ 413
• Chong Kok Weng & Anor (both as joint administrator and
administratix of the estate of Chong Kit Yin and Chung Mui Lim,
decd) v Wing Wah Travel Agency Sdn Bhd & Anor [2003] 5 CLJ 409
(CA)
• Chin Hooi Nan v Comprehensive Auto Restoration Service Sdn Bhd
v Anor [1995] 2 MLJ 100
• Malaysian Airline System Bhd v Malini Nathan & Anor [1986] 1 MLJ
330
• CIMB Bank Bhd V. Anthony Lawrence Bourke & Anor [2019] 2 CLJ
1

IV. VOIDABLE CONTRACTS

1. "Voidable contract"

• Section 2(i) CA

2. What contracts are voidable

(i) Section 19(1) CA: When consent to an agreement is caused by coercion,

fraud or misrepresentation
(ii) Section 20 CA: When consent to an agreement is caused by undue
influence

(iii) (Such agreements are voidable at the option of the party whose consent
was so caused)

(iv) Sandrifarm Sdn Bhd v Pegawai Pemegang Harta Malaysia [2000] 2 MLJ
535

3. Relief

(a) Section 65 CA
General Paper 40

(i) Rescission of voidable contract –

• need not perform any promise therein contained

• party rescinding to restore benefit, advantage received

(ii) What if defaulting party has received benefit - whether to restore?

• cf. Section 65 CA: party rescinding to restore

(b) Section 66 CA

(i) when a contract becomes void, any person who has received
advantage to restore.
• Satgur Prasad v Har Narain Das (PC India) 1932 59 IA 147

(ii) the words "when a contract becomes void" cover the case of a
voidable contract which has been avoided.
• Yong Mok Hin v United Malay States Sugar Industries Ltd (FC)
[1967] 2 MLJ 9
(c) Section 76 CA

(i) person who rightly rescinds compensation for damage sustained

through non-fulfilment of contract.
• Haji Ahmad v Abdul Gani (High Ct, Nagpur) AIR 1937 Nag
270

(ii) inapplicable to rescission on grounds of fraud or

misrepresentation - these are not cases of non-fulfilment of
contract.
• Tengku Abdullah Ibni Sultan Abu Bakar & Ors v Mohd Latiff
bin Shah Mohd & Ors and other appeals [1996] 2 MLJ 265
• Abdul Razak bin Datuk Samah v Shah Alam Properties Sdn
Bhd and another appeal [1999] 2 MLJ 500

4. Coercion

(a) Section 15 CA –

(i) Act forbidden by Penal Code; detention of property

• cf. English law
General Paper 41

(ii) Duress - actual or threatened violence or imprisonment to person,

not duress of goods.
• Skeate v Beale (1841) 11 Ad & El 983;
• Teck Guan Trading Sdn Bhd v Hydrotek Engineering (S) Sdn
Bhd & Others [1996]1 MLJ 231

(iii) New developments - economic duress.

• Universe Tankship of Monrovia v International Transport
Workers Federation (HL) [1983] AC 366

(b) Relief

(i) Section 73 CA - to repay money paid or anything received under

coercion.

(ii) Whether meaning of coercion restricted to definition in section 15

CA.
• Kanhaya Lal v National Bank of India (PC India) ILR (1913) 40
Cal 598
• Chin Nam Bee Development v Tai Kim Choo [1988] 2 MLJ 117

5. Undue Influence/Inequality Bargaining of Power

(a) Position substantially based on English principles

(i) Section 16(1) CA - Undue influence

• Poosathurai v Kannappa Chettiar & Ors (PC India) (1919)

(ii) Section 16(2) CA - When person deemed to be in position to

dominate
• Saad bin Marini v Chan Hwan Hua [2002] 2 AMR 2010

(b) Rebutting the presumption

• Inche Noriah v Shaik Allie bin Omar (PC) [1929] AC 127

• Section 16(3) CA
o Raghunath Prasad v Sarju Prasad (PC India) AIR 1924 P 60
o Malaysian French Bank Bhd v Abdullah bin Mohd Yusoff & Ors
[1991] 2 MLJ 475
o Hongkong and Shanghai Banking Corporation v Syarikat
United Leong Enterprise Sdn Bhd & Anor [1993] 2 MLJ 449
o Yong Yeu Sin v Liew Nyat Kui & Ors [2003] 3 CLJ 269
o Riviera Bay Resort & Condo Management Sdn Bhd v Sri Rimba
 General Paper 42

Mentari Development Sdn Bhd [2003] 5 AMR 256

o Tengku Abdullah ibni Sultan Abu Bakar & Ors v Mohd Latiff
bin Shah Mohd & Ors and other appeals [1996] 2 MLJ 265, CA
o Polygram Records Sdn Bhd v The Search & Anor [1994] 3 MLJ
127
o Saad Marwi v Chan Hwan Hua & Anor [2001] 3 CLJ 98
o Pengiran Othman Shah bin Pengiran Mohd Yusoff & Anor v
Karambunai Resorts Sdn Bhd (formerly known as Lipkland
(Sabah) Sdn Bhd) & Ors [1996] 1 MLJ 309

6. Fraud

(a) Section 17(a)(b)(c) CA - fraud under common law

• Derry v Peek (1889) 14 AC 337
• Ong Ban Chai & Ors v Seah Siang Mong [1998] 3 MLJ 346
• Chaw Anui v Tan Kim Chai [2004] 5 AMR 671

(b) Proof of fraud

• Lau Hee Teah v Hargill Engineering Sdn Bhd (FC) [1980] 1 MLJ 145
• Eastern & Oriental Hotel (1951) Sdn Bhd v Ellarious George
Fernandez & Anor (SC) [1989] 1 MLJ 35
• Ang Hiok Seng & Ang Yeok Seng (Personal Representative of the
estate of Chan Weng Sun, deceased) v Yim Yut Kiu [1997] 1 CLJ 497
(SC) - the distinction between allegations of fraud based on a
criminal offence and fraud which is purely civil in nature.
• Sinnaiyah & Sons Sdn Bhd v Damai Setia Sdn Bhd [2015] 7 CLJ 584
(FC)

(c) Fraud under section 340 National Land Code

• Saminathan v Pappa (PC) [1981] 1 MLJ 121

7. Misrepresentation

• Section 18 CA - Substantially similar to common law innocent

misrepresentation
o Segar Oil Palm Estate Sdn Bhd v Tay Tho Bok & Anor [1997] 3 MLJ
211
o Kluang Wood Products Sdn Bhd & Anor v Hong Leong Finance Bhd
& Anor [1999] 1 MLJ 193
o Dato' Soo Lai Sing v Kumpulan Sierramas (M) Sdn Bhd [2004] 3
MLJ 546
o Sim Thong Realty Bhd v Teh Kim Dar [2003] 3 MLJ 460
o Chuah Tong Yeong v. Kuala Lumpur Golf & Country Club Bhd
General Paper 43

[2003] 7 CLJ 180

o Abdul Razak Datuk Abu Samah v. Shah Alam Properties Sdn Bhd &
Another Appeal (COA) [1999] 3 CLJ 231

8. Exception to Section 19 CA

(a) Exception - Contract not voidable if party has "means of discovering the
truth" with ordinary diligence
• Weber v Brown (1908) 1 FMSLR 12
• Tan Chye Chew v Eastern Mining & Metals Co Ltd (FC S'pore)
[1965] 1 MLJ 201

(b) cf. English law;

• Nocton v Lord Ashburton [1914] AC 932, 962

9. Mistake

(a) Section 21 CA - mistake by both parties, matter of fact essential to

agreement, void

• Matter of fact essential to agreement

o Sheikh Brothers Ltd v Ochsner (PC Eastern Africa) [1957] AC
136
o Tunku Hamman bin Tunku Sulong v City Car Plaza Sdn Bhd
[2004] 3 AMR 585

(b) Section 23 CA - unilateral mistake, matter of fact, not voidable

(c) Section 22 CA - mistake of law in force in Malaysia, not voidable

(d) Relief

(i) Section 73: Restoration of money paid under mistake

• Shiba Prasad Singh v Chandra Nandi (PC India) (1949) 76
IA 244 includes money paid under mistake of law - section 22

(ii) cf. English law

• Bilbie v Lumley 102 ER 448 payment under mistake of law

irrecoverable.
• Lord Denning in Kiriri Cotton Co Ltd v Dewani [1960] AC 192
• Lee Fu Sdn Bhd v Unique Progress Sdn Bhd [2003] 4 CLJ 171
General Paper 44

10. Rectification

• Mutual/Common Mustake - section 30 Specific Relief Act 1950

o Southwind Development Sdn Bhd v Hass Plantation Sdn Bhd [1996]
5 MLJ 85

V. VOID AGREEMENTS

1. "Void"

• Section 2(g) CA

2. What agreements are void

(a) Section 24 CA - agreements where consideration or object is unlawful.

• See also sections 26 – 31.

(b) Contract by minors

• Mohori Bibee v Dhurmodas Ghose (1903) 30 IA 114

(c) Agreement to withhold proceedings

• Asia Commercial Finance (M) Bhd v Leong Choong Shin [1997] 5
MLJ 17
• Thong Foo Ching & Ors v Shigenari & Ors [1998] 4 MLJ 585
• Lim Eng Heng v Lim Sam Keow & 2 Ors [2003] 2 AMR 520 (HC)
• Perwira Affin Bank Berhad v Orison Sdn Bhd & Ors [2004] 1 AMR
442
• Sinnaiyah & Sons Sdn Bhd v Damai Setia Sdn Bhd [2015] 7 CLJ 584
(FC)

3. Relief - Section 66 CA

(a) Agreement discovered to be void

• Harnath Kaur v Indar Bahadur Singh (PC India) AIR 1922 PC 403
• Public Finance Bhd v Ehwan bin Saring [1996] 1 MLJ 331

(b) only applicable where parties not aware of illegality at time contract
made/not in pari delicto
• Sivaramakrishnaiah v Narahari Rao AIR 1960 Andh Pra 186
• Ng Siew San v Menaka (FC) [1973] 2 MLJ 154
General Paper 45

(c) inapplicable to contracts void because of incompetency to contract by

minors
• Mohori Bibee v Dhurmodas Ghose (1903) 30 IA 114

(d) Strangers to the agreement

• Badiaddin bin Mohd Mahidin & Anor v Arab Malaysian Finance Bhd
[1998] 1 MLJ 393

4. Section 24 CA

(a) Consideration or object unlawful - agreement is void.

• See also section 25 CA
• Cf. English law - doctrine of severability
o Henry Pigot's case (1614) 11 Co Rep 276

(b) What consideration/object unlawful - section 24(a)-(e) CA

(i) Section 24(b) CA

• Hopewell Construction v Eastern & Oriental Hotel [1988] 2
MLJ 621
• Lim Kar Bee v Duofortis Properties (M) Sdn Bhd (SC) [1992] 2
MLJ 281, [1993] 1 SCR 61
• Lim Eng Heng v Lim Sam Keow & 2 Ors [2003] 2 AMR 520
(HC)
• KTS Sdn Bhd v Standard Chartered Bank [2004] 2 CLJ 85
• Merong Mahawangsa Sdn Bhd & Anor v Dato’ Shazryl Eskay
Abdullah [2015] 8 CLJ 212 (FC)

(ii) Section 24(e) CA - public policy

• Theresa Chong v Kin Khoon & Co (FC) [1976] 2 MLJ 253
• Tunku Kamariah Aminah Maimunah Iskandariah bte Sultan
Iskandar v Dato James Ling Beng King [1989] 2 MLJ 249
• B-Trak Sdn Bhd v Bingkul Timber Agencies Sdn Bhd [1989] 1
MLJ 124
• Amalgamated Steel Mills Bhd v Ingeback (Malaysia) Sdn Bhd
[1990] 2 MLJ 374
• Kidurong Land Sdn Bhd & Anor v Lim Gaik Hua & Ors (SC)
[1990] 1 MLJ 485
• Chung Khiaw Bank Bhd Ltd v Hotel Rasa Sayang Sdn Bhd &
Anor (SC) [1990] 1 MLJ 356
• Harun bin Taib v Khor Peng Song [1991] 3 CLJ 2484
• Ooi Kiah Inn Charles v Kukuh Maju Industries Sdn Bhd (SC)
[1993] 2 MLJ 224, [1993] 3 CLJ 199
General Paper 46

• Keng Soon Finance Bhd v MK Ratnam Holdings Sdn Bhd

• Bhagat Singh Surain Singh & Ors (Interveners) [1996] 4 CLJ
52
• YK Fung Securities Sdn Bhd v James Capel (Far East) Ltd
[1997] 4 CLJ 300
• Puncak Niaga Holdings Berhad v NS Water Sdn Bhd & 2 Ors
[2004] 5 MLJ 430
• Thong Foo Ching & Ors v Shigenori Ono [1998] 4 MLJ 585
• Merong Mahawangsa Sdn Bhd & Anor v Dato’ Shazryl Eskay
Abdullah [2015] 8 CLJ 212 (FC)

(iii) Whether contracting out of statute void as against public policy

• Ooi Boon Leong v Citibank NA (PC) [1984] 1 MLJ 222
• Sinniah a/l Pampayam v Muthuvelu Pillai a/l Palanichamy Pillai
(1997) 1 MLJ 403

5. Restraint of Trade

(a) English Law

• Nordenfelt v Maxim Nordenfelt Guns & Ammunition Co [1894] AC
535, 565

(b) Section 28 CA
• Hua Khiow Steamship Co Ltd v Chop Guan Hin (1930) 1 MC 175
• Wrigglesworth v Wilson Anthony [1964] MLJ 269
• Stamford College Group Sdn Bhd v Raja Abdullah bin Raja Othman
[1991] 2 CLJ 1135

6. Minors - Sections 10, 11, 69 CA

(a) Contracts by minors’ void; not merely voidable

• Mohori Bibee v Dhurmodas Ghose (1903) 30 IA 114

(b) Exceptions

(i) Contract to marry

• Rajeswary v Balakrishnan (1953) 3 MC 178, 198
• Section 4(a) Age of Majority Act 1971
• Sections 10 & 12 The Law Reform (Marriage and Divorce) Act
1976

(ii) Scholarship agreements

• Section 4(a) Contracts (Amendment) Act 1976
General Paper 47

(iii) Section 13 Children and Young Persons (Employment) Act 1966

(c) Relief

(i) Sections 65 and 66 CA inapplicable

• Mohori Bibee v Dhurmodas Ghose (1903) 30 IA 114
• cf. Leha binte Jusoh v Awang Johari Bin Hashim (FC) [1978] 1
MLJ 202
(ii) Section 69 CA - supplies for necessaries
• Government of Malaysia v Gurcharan Singh [1971] 1 MLJ 211
• Ng Kim Moi (p) & Ors v Pentadbir Tanah Daerah Seremban,
Negeri Sembilan [2004] 3 MLJ 301

VI. DISCHARGE

1. By Frustration

(a) Section 57(2) CA - "impossible"

• Satyabrata Ghose v Mugneeram Bangur & Co AIR 1954 SC 44

(b) Test for frustration

• Davis Contractors Ltd v Fareham UDC (HL) [1956] AC 696
• Ramli bin Zakaria & Ors v Government of Malaysia (FC) [1982] 2 MLJ
257
• Standard Chartered Bank v Kuala Lumpur Landmark Sdn Bhd [1991]
2 MLJ 251
• Shigenori Ono v Thong Foo Ching @ Thong Chuan Ching & 2 Ors
[1991] 3 CLJ 1852
• Lee Seng Hock v Fatimah Zain (1996) 4 CLJ 519
• Dato Yap Peng & Ors v Public Bank Bhd & Ors [1997] 3 MLJ 484
• Wong Siew Choong Sdn Bhd v Anvest Corporation Sdn Bhd [2004] 4
CLJ 89
• Silver Concept Sdn Bhd v Brisdale Rasa Development Sdn Bhd
(formerly known as Ekspidisi Ria Sdn Bhd) [2005] 4 MLJ 101

(c) Relief
(i) Section 66 CA - restoration - contract becomes void
(ii) Sections 15 and 16 Civil Law Act 1956 (Act 67)
• cf. Law Reform (Frustrated Contracts) Act 1943
• BP Exploration Co (Libya) Ltd v Hunt (No 2) [1979] 1 WLR
783, 796-808
General Paper 48

2. By Performance

(a) Part V of the Contracts Act 1950

• Tan Ah Kian v Haji Hasnan [1962] MLJ 400
• Associated Pan Malaysia Cement Sdn Bhd v Syarikat Teknikal &
Kejuruteraan Sdn Bhd (SC) [1990] 3 MLJ 295

(b) Waiver of right that time of essence

• Sharikat Eastern Plastics Industry v Sharikat Lam Seng Trading

[1972] 1 MLJ 21
• Siah Kwee Mow v Kulim Rubber Plantation [1979] 2 MLJ 190, 201
• KL Finance Bhd v Yap Poh Khian (Teo Sik Eng & Anor, Interveners)
[1992] 1 MLJ 472
• Sing Kee Motor Credit Sdn Bhd v Public Finance Bhd [2000] 4 AMR
4777 (CA)
• Yeo Liong Ho v. Loh Choon Hooi [2010] 580 (CA)

(c) Relief

(i) When time is essential

• Section 56(1) CA - Contract voidable at option of promisee

• Section 56(1) CA to be read with section 65 CA

o Linggi Plantations Ltd v Jegatheesan (PC) [1972] 1 MLJ
89
o Hock Huat Iron Foundry (suing as a firm) v Naga
Tembaga Sdn Bhd (1999) 1 MLJ 65

• Section 56(3) CA - compensation

o Yeow Kim Pong Realty Ltd v Ng Kim Pong [1962] MLJ
118
o Sakinas Sdn Bhd v Siew Yik Hau & Anor [2002] 2 AMR
1953 (HC)

(ii) When time is not essential

• Section 56(2) CA – compensation

3. By Breach

(a) Section 40 CA

(i) refusal to perform/disabled himself from performing

General Paper 49

• Choo Yin Loo v Visuvalingam Pillay [1930] 7 FMSLR 135

• Wong Poh Oi v Gertrude Guok & Anor [1966] 2 MLJ 134
• Ban Hong Joo Mines Ltd v Chen & Yap Ltd [1969] 2 MLJ 83
• Rasiah Munusamy v Lim Tan & Sons Sdn Bhd [1985] 2 MLJ
291

(ii) promisee may put an end to the contract

• Muralidhar Chatterjee v International Film Co Ltd (PC) (1942)
LR 70 IA 35
• Chin Kim & Anor v Loh Boon Siew [1970] 1 MLJ 197
• Sim Chio Huat v Wong Ted Fui [1983] 1 MLJ 151
• Leong Weng Choon v Consolidated Leasing (M) Sdn Bhd
[1998] 3 AMR 3133
• Tan Tien Seng & Anor v Grobina Resorts Sdn Bhd [2005] 7
MLJ 590 (CA)

(b) Meaning of rescission

• Johnson v Agnew [1980] AC 367
• White & Carter (Councils) Ltd v McGregor [1962] 2 WLR 17
• Hwa Chea Lin & Anor v Malim Jaya (Melaka) Sdn Bhd [1996] 1 MLJ
554
• Lim Ah Moi v Ams Periasamy Suppiah Pillay [1997] 3 CLJ 629
• P. Palakrishnan a/l Perianan v Krishnamoorthy a/l Sinniah & satu
lagi [2001] 5 MLJ 389
• Lim Chon Beng v Pulau Kembar Sdn Bhd [2005] 7 MLJ 180
• Thomas a/l Iruthayam & Anor v LSSC Development Sdn Bhd [2005]
4 MLJ 262
• LSSC Development Sdn Bhd v Thomas Iruthayam & Anor [2007] 2
CLJ 434

(c) Relief

(i) Section 65 CA –

• Rescission of voidable contract

o Muralidher Charterjee (Supra)
o Linggi Plantations Ltd (Supra)
o Travel Sight (M) Sdn Bhd & Anor v Atlas Corporation Sdn
Bhd [2003] 3 AMR 317

• need not perform any promise therein contained, party

rescinding to restore benefit, advantage received

• What if defaulting party has received benefit - whether to

restore?
General Paper 50

o cf. Section 65 CA - party rescinding to restore

• the words "when a contract becomes void" cover the case of

a voidable contract which has been avoided
o Yong Mok Hin v United Malay States Sugar Industries
Ltd (FC) [1967] 2 MLJ 9
o Badiaddin Mohd Mahidin & Anor v Arab Malaysian
Finance Bhd [1998] 2 CLJ 75 (FC)

(ii) Section 66 CA - When a contract becomes void, any person who

has received advantage to restore
• Satgur Prasad v Har Narain Das (PC India) 1932 59 IA 147

(iii) Section 76 CA - person who rightly rescinds - compensation for

damage sustained through non-fulfilment of contract
• Hj Ahmad v Abdul Gani (High Ct. Nagpur) AIR 1937 Nag 270
• Hims Enterprise (M) Sdn Bhd & Anor v Ishak bin Subari & 2 Ors
[1992] 1 CLJ 132, 140
• Travel Sight (M) Sdn Bhd & Anor v Atlas Corporation Sdn Bhd
[2003] 3 AMR 317

(d) Rescission under the Specific Relief Act 1950 (Act 137), sections 34-37
• Pywatech (M) Sdn Bhd v Vista-Prisma Sdn Bhd [2003] 2 AMR 691

VII. DAMAGES

1. Meaning

(a) Pecuniary and non-pecuniary loss; liquidated and unliquidated damages;

general and special damages; nominal damages; exemplary damages

(b) Nominal damages

• Hilbourne v Tan Tiang Quee [1972] 2 MLJ 94
• Hock Huat Iron Foundary (suing as a firm) v Naga Tembaga Sdn
Bhd (1999) 1 MLJ 65
• Letrik Bandar Hap Heng Sdn Bhd v Wong Sai Hong [2002] 5 MLJ
247

(c) Exemplary damages

• Dennis v Sennyah [1963] MLJ 95
• Cheng Hang Guan & Ors v Perumahan Farlim (Penang) Sdn Bhd
General Paper 51

[1993] MLJ 352

(d) Party entitled to claim

• Lim Foo Yong Sdn Bhd v Datuk Eric Taylor [1990] 1 MLJ 168

2. Pecuniary & Non-Pecuniary Loss

(a) Pecuniary loss: loss of profits/earnings, reliance expenditure

• McRae v Commonwealth Disposal Commission (1951) 84 CLR 377
• Cullinane v British "Rema" Manufacturing Co Ltd (CA) [1954] 1 QB
292, 308
• Anglia Television Ltd v Reed [1972] 1 QB 60
• C & P Haulage v Middleton [1983] 3 AER 94
• C.C.C. Films (London) Ltd v Impact Quadrant Films [1985] QB 16

(b) Non-pecuniary loss

(i) Physical loss, injury or inconvenience and discomfort

• Hobbs v L.S.W. Rly (1875) LR 10 QB 111

(ii) Pain, suffering, loss of amenities and expectation of life

• Summers v Salford Corporation [1943] AC 283

(iii) Injury to feelings and mental distress

• Addis v Gramophone [1909] AC 488
• Jarvis v Swan Tours Ltd [1973] 1 AER 71
• Heywood v Wellers (A Firm) [1976] 1 AER 300
• Bliss v S.E. Thames Regional Health Authority [1987] ICR 700
• Hayes v Dodd [1990] 2 AER 815
• Abdul Karim v T & R United (S'pore) Pte Ltd Dec 1987
Butterworth's Law Digest para 949
• James Yu v Raffles Hotel Ltd Feb 1988 Butterworth's Law
Digest para 1182; Yearbook [1987-88] para 266
• Haron bin Mundir v Singapore Amateur Association [1992] 1
CLJ 284, 295

3. Remoteness of Damages

(a) Section 74

(b) Rule in Hadley v Baxendale (1854) 9 Ex Ch 341

• Victoria Laundry (Windsor) Ltd v Newman Industries Ltd [1949] 2
General Paper 52

KB 528
• Koufos v C Czarnikow Ltd (HL) [1969] 1 AC 350
• H Parsons (Livestock) Ltd v Uttley Ingham & Co Ltd [1978] 1 AER
525
• Teoh Kee Keong v Tambun Mining Co Ltd (FC) [1968] 1 MLJ 39
• Bee Chuan Rubber Factory Sdn Bhd v Loo Sam Moi (FC) [1976] 2
MLJ 14
• Tham Cheow Toh v Associated Metal Smelters Ltd (FC) [1972] 1
MLJ 171
• Lim Foo Yong & Sons Realty Sdn Bhd v Datuk Eric Taylor (SC)
[1989] 2 MLJ 436, [1990] 1 MLJ 168
• Bank Bumiputra Malaysia Bhd, Kuala Trengganu v Mae
PerkayuanSdn Bhd & Ors (SC) [1993] 2 MLJ 76
• Elkobina (M) Sdn Bhd v Mensa Mercantile (Far East) Pte Ltd [1994]
1 MLJ 553 (SC)
• Tan Sri Khoo Teck Puat & Anor v Plenitude Holding Sdn Bhd (FC)
[1994] 3 MLJ 777
• Dato' Mohd Anuar Embong & Anor v Bank Bumiputra Malaysia Bhd
[2003] 2 CLJ 129 (CA)

4. Mitigation of Damages
• British Westinghouse Electric Co Ltd v Underground Electric Railways
[1912] AC 673, 689
• Hoffberger v Ascot International Bloodstock Bureau Ltd (1976) 120 SJ 130
• White & Carter (Councils) Ltd v McGregor [1962] AC 413
• Teh Wan Sang v See Teow Chuan [1984] 1 MLJ 130
• Section 74 Explanation
• Kabatasan Timber Extraction Co v Chong Fah Shing (FC) [1969] 2 MLJ 6
• Tansa Enterprise Sdn Bhd v Temenang Engineering Sdn Bhd [1994] 2 MLJ
353
• Malaysian Rubber Development Corp Bhd v Glove Seal Sdn Bhd [1994] 3
MLJ 569
• YK Fung Securities Sdn Bhd v James Capel (Far East) Ltd [1997] 4 CLJ
300
• Plenitude Holdings Sdn Bhd v Tan Sri Khoo Teck Puat & Anor (CA) [1994]
1 MLJ 273
• Joo Leong Timber Merchant v Dr Jaswant Singh a/l Jagat Singh [2003] 5
CLJ 286 (HC)
• Sime UEP Properties Bhd (dahulunya dikenali sebagai United Estate
Projects Berhad) v Woon Nyoke Lin [2002] 3 CLJ 719 (CA)
• Dato' Mohd Anuar Embong & Anor v Bank Bumiputra Malaysia Bhd [2003]
2 CLJ 129 (CA)
• Interdeals Automation (M) Sdn Bhd v Hong Hong Documents Sdn Bhd
[2003] 2 AMR 55
• Malayan Banking Berhad v Basarudin Ahmad Khan [2005] 1 MLJ 210 (CA)
General Paper 53

5. Timing of Assessment of Damages

• Miliangos v George Frank (Textiles) Ltd (HL) [1976] AC 443, 468
• Johnson v Agnew (HL) [1980] AC 367, 401
• Tan Ah Chim & Sons v Ooi Bee Tat & Anor [1993] 3 MLJ 633, 667 (SC)
• Heller Factoring Sdn Bhd v Metalco Industries (M) Sdn Bhd (CA) [1995] 2
MLJ 153
• Lim Yee Khei v Berjaya Times Square Sdn Bhd [2003] 1 CLJ 527

6. Tax Factor in Damages

• British Transport Commission v Gourley (HL) [1956] AC 185
• Daishowa (M) Wood Products Sdn Bhd v Kepong Products Co Sdn Bhd
(FC) [1980] 2 MLJ 68
• Associated Pan Malaysia etc Bhd v Syarikat Teknikal etc Bhd [1990] 3 MLJ
287

7. Contributory Negligence
• Forsikringaktieskapet Vesta v JNE Butcher & Others [1988] 2 AER 43
• Lambert v Lewis [1982] AC 225
• Section 12 (1)(6) Civil Law Act 1956 (Act 67)

8. Illustrations of some types of claims for damages

(a) Contracts for the sale of land

• York Glass Co v Jubb (1926) 134 L.T. 36
• Royal Bristol Permanent Building Society v Bomash (1887) 35 Ch. D
390
• Cottrill v Steyning and Littlehampton Building Society [1966] 1 WLR
753
• Lloyd v Stanbury [1971] 1 WLR 535
• Central Malaysia Development Co Ltd v Chin Pak Chin [1967] 2 MLJ
174

(b) Prospective damages payable to third parties

• Household Machines Ltd v Cosmos Exporters Ltd [1947] 1 KB 217
• Trans Trust S.P.R.L. v Danubian Trading Co Ltd [1952] 2 KB 297
• Bostock & Co Ltd v Nicholson & Sons Ltd [1904] 1 KB 725

(c) Building Contract

• Tan Ah Chim & Sons Sdn Bhd v Ooi Bee Tat & Anor (supra)
• Ang Kee Sim v Kembangan Jaya Development Sdn Bhd [2001] 7
CLJ Supp 69 (HC)
• Joo Leong Timber Merchant v Dr Jaswant Singh a/l Jagat Singh
General Paper 54

[2003] 2 CLJ 286 (HC)

(d) Others
• Heller Factoring Sdn Bhd (previously known as Matang Factoring
Sdn Bhd) v Metaloo Industries (M) Sdn Bhd (CA) 2 MLJ 153
• Choo Chin Thye v Concrete Engineering Products Bhd & other
appeals [2005] 4 MLJ 14 (CA)

9. Liquidated Damages and Penalties

(a) English law:

• Dunlop Pneumatic Tyre v New Garage & Motor Co Ltd [1915] AC
79
• Philips Hong Kong Ltd v The Attorney General of Hong Kong (PC)
[1993] 2 CLJ 272

(b) Section 75 CA
• Wearne Brothers (M) Ltd v Jackson [1966] 2 MLJ 155
• Maniam v State of Perak [1957] MLJ 75
• Linggi Plantations Ltd v Jegatheesan (PC) [1972] 1 MLJ 89
• Wee Wood Industries Sdn Bhd v Guannex Leasing Sdn Bhd [1990]
2 CLJ 1060
• Hsu Seng v Chai Soe Fua [1990] 1 MLJ 300
• Selva Kumar a/l Murugiah v Thiagarajah a/l Retnasamy (CF) [1995]
1 MLJ 817
• Realvest Properties Sdn Bhd v The Co-operative Central Bank
Limited (under receivership) [1996] 3 CLJ 823
• Pembinaan Sima Sdn Bhd v Low Lai Seng Holdings Sdn Bhd [1998]
1 CLJ 159
• Lebbey Sdn Bhd v Tan Keng Hong & Anor [2000] 1 CLJ 136
• Joe Leong Timber Merchant v Dr Jaswant Singh a/l Jagat Singh
[2003] 5 CLJ 286 (HC)
• Leong Lai Kuen (p) v Sentul Murni Sdn Bhd [2003] 6 AMR 481
• Yap Yew Cheong & Anor v Dirga Niaga (Selangor) Sdn Bhd [2005]
7 MLJ 660
• Sabil Mulia (M) Sdn Bhd v Pengarah Hospital Tengku Ampuan
Rahimah & Ors [2005] 3 MLJ 325 (CA)
• Cubic Electronic Sdn Bhd v. Mars Telecommunication Sdn
Bhd [2018] AMEJ 1763 (FC)

10. Deposit, Part Payment, Forfeiture, Equitable Relief

(a) Difference between deposit and part payment; Forfeiture of deposit

General Paper 55

• Howe v Smith (1884) 27 Ch D 89, 101

• Warren v Tay Say Geok (PC) [1965] 1 MLJ 44
• Linggi Plantations Ltd v Jegatheesan (PC) [1972] 1 MLJ 89
• Sun Properties Sdn Bhd & Ors v Happy Shopping Plaza Sdn Bhd
(SC) [1987] 2 MLJ 711
• Guna Sittampalam & Anor v Aik Hua Properties Sdn Bhd [1989] 2
MLJ 162
• Morello Sdn Bhd v Jagues (International) Sdn Bhd (FC) [1995] 1
MLJ 577
• Tekgo Kota Sdn Bhd v Setapak Heights Development Sdn Bhd
[2004] 1 AMR 61

(b) Sections 65 and 75 CA

• Linggi Plantations Ltd v Jegatheesan (PC) [1972] 1 MLJ 89
• Karuppiah v Petaling Garden Co Sdn Bhd (FC) [1972] 1 MLJ 173
• Reliance Shipping & Travel Agencies Sdn Bhd v Low Ban Siong
(1996) 2 CLJ 960
• Jeo Leong Timber Merchant v Dr Jaswant Singh a/l Jagat Singh
[2003] 5 CLJ 286 (HC)

(c) Equitable Relief

• Stockloser v Johnson [1954] 1 AER 630
• Umar Kandha Rajah v Magness EL (FC) [1985] 1 MLJ 116
• Siah Kwee Mow v Kulim Rubber Plantations Ltd [1979] 2 MLJ 190
• Chen Chow Lek v Tan Yew Lai [1983] 1 MLJ 170

(d) Recovery of Part Payments

• Mayson v Clouet [1924] AC 980
• Dies v British & International Mining & Finance Corp [1939] 1 KB
724

(e) Unjust Enrichment

• Perak Motor Co Sdn Bhd v Estate Pekebun Kecil Sdn Bhd [2006] 4
CLJ 603
• Dream Property Sdn Bhd v. Atlas Housing Sdn Bhd (FC)
[2015] 2 CLJ 453
General Paper 56

VIII. SPECIFIC PERFORMANCE

Sections 11-29 Specific Relief Act 1950 (Act 137)

1. Contracts which may be specifically enforced: Sections 11-19 SRA

(a) Section 11 SRA

(i) No standard for ascertaining damage: Section 11(1)(b) SRA

• Gan Realty Sdn Bhd & Ors v Nicholas & Ors [1969] 2 MLJ 110
• H.A. Securities Sdn Bhd v Ng Kong Yeam [1993] 3 MLJ 489,
501
(ii) Money not adequate relief: Section 11(1)(c) SRA
• Lim Sin Oo & Ors v Cheah Tjeng Siong [1989] 2 MLJ 44

(iii) Immovable Property - presumption: Section 11(2) SRA

• Zaibun Sa binti Syed Ahmad v Loh Koon Moy & Anor (PC)
[1982] 2 MLJ 92
• Ho Ah Kim & Ors v Paya Trubong Estate Sdn Bhd [1987] 1
MLJ 143
• Sekemas Sdn Bhd v Lian Seng Co Sdn Bhd (SC) [1989] 2 MLJ
155
• Tan Ah Chim & Sons Sdn Bhd v Ooi Bee Tat & Anor [1993] 3
MLJ 633, 664 (SC)
• Chuah Seow Keng & Anor v Rhina Bhar & Rani Raj Pal [1997]
3 MLJ 17

(b) Specific Performance of part of the contract: Sections 13-16 SRA

• City Investment Sdn Bhd v Koperasi Serbaguna Cuepacs
Tanggungan Bhd (FC) [1985] 1 MLJ 285, 292; (PC) [1988] 1 MLJ
69
• Wong Siew Choong Sdn Bhd v Anvest Corporation Sdn Bhd
[2002] 3 AMR 2554

(c) Compensation in addition to or in substitution of specific performance:

Section 18 SRA
• Lee Hoy & Anor v Chen Chi (FC) [1971] 1 MLJ 76
• Johnson v Agnew (HL) [1980] AC 367
• Ong Geok Heng v Wee Cheong Motor & Housing Development
Sdn Bhd [1990] 2 CLJ 1007
• Tan Ah Chim & Sons Sdn Bhd v Ooi See Tat & Anor (supra)
• Labasama Group (M) Sdn Bhd v Insofex Sdn Bhd [2002] 1 CLJ
261 (CA)
General Paper 57

(d) Liquidated damages not a bar to specific performance: Section 19 SRA

• Zaibun Sa binti Syed Ahmad v Loh Koon Moy & Anor (PC) [1982]
2 MLJ 92
• Chye Fook & Anor v Teh Teng Seng Realty Sdn Bhd [1989] 1 MLJ
308
• Lim Sin Oo & Ors v Cheah Tjeng Siong [1989] 2 MLJ 44

2. Contracts which cannot be specifically enforced: Section 20 SRA

(a) Monetary compensation adequate - Section 20(1)(a) SRA

• Sekemas Sdn Bhd v Lian Seng Co Sdn Bhd (SC) [1989] 2 MLJ 155

(b) Cnstant supervision required - Section 20(1)(b) SRA

• Lee Sau Kong v Leow Cheng Chiang (1961) 27 MLJ 17
• Building Contracts:
o Wolverhampton Corpn v Emmons [1901] 1 KB 515
o Carpenters Estate Ltd v Davies [1940] 1 Ch 160, 165
o Hounslow (Local Borough) v Twickenham Gardens Ltd
[1971] Ch 233
o Oon Hock Lai v Lee Kok Leong [1990] 1 CLJ 951

(c) Contracts for personal service - Section 20(1)(b) SRA

• Giles C.H v Morris [1972] 1 WLR 307, 318
• Sivaperuman v Heah Seok Yeong Realty Sdn Bhd (FC) [1979] 1
MLJ 150
• Holiday Inns v Hotel Enterprise [1976] 1 MLJ 213
• Si Rusa Beach Resort Sdn Bhd v Asia Pacific Hotels Management
Pte Ltd (FC) [1985] 1 MLJ 132

(d) Terms uncertain - Section 20(1)(c) SRA

• Lin Nyuk Chan v Wong Sz Tsin (FC) (1964) 30 MLJ 200

(e) Performance of a continuous duty for a period exceeding three

years - Section 20(1)(g)
• Marble Terrazzo Industries Sdn Bhd v Anggaran Enterprise Sdn Bhd
& Ors [1991] 1 MLJ 253

3. Discretion of the Court to grant Specific Performance: Section 21 SRA

• Baharuddin bin Ali & Anor v Suharta Development Sdn Bhd [2003] 3
AMR 89 (CA)
General Paper 58

• Hardship: Section 21(2)(b) SRA

o Venkatachalam Chettiar & Ors v Arunasalam Chettiar [1953] MLJ
234
o Sekemas Sdn Bhd v Lian Seng Co Sdn Bhd (SC) [1989] 2 MLJ 155

IX. INJUNCTIONS
Sections 50-55 Specific Relief Act 1950 (Act 137)

1. Prohibitory Injunction - Section 52 SRA

2. Mandatory Injunction - Section 53 SRA

• Redland Bricks Ltd v Morris & Anor (HL) [1970] AC 652
• Gibb & Co v Malaysia Building Society Bhd (FC) [1982] 2 MLJ 271
• Bandar Raya Development Bhd v Ang Yoke Lian Construction Sdn Bhd
[1993] 1 AMR 8
• MBF Holdings Bhd v East Asiatic Co (M) Bhd [1995] 3 MLJ 49
• Timbermaster Timber Complex (Sabah) Sdn Bhd (Pentadbir Khas
dilantik) v Top Origin Sdn Bhd [2002] 1 AMR 25 (CA)
• Neoh Khoon Lye v Trans-Intan Sdn Bhd [2002] 3 AMR 2655
• Tinta Press Sdn Bhd v Bank Islam Malaysia Bhd [1987] 2 MLJ 192

3. Temporary/Interim/Interlocutory Injunction - Section 51(1) SRA

• American Cyanamid Co v Ethicon Ltd (HL) [1975] AC 396
• Mohd Zainuddin bin Puteh v Yap Chee Seng [1978] 1 MLJ 40
• RCA Sdn Bhd v Pekerja-Pekerja RCA Sdn Bhd (SC) [1991] 1 CLJ 19
• Tien Ik Sdn Bhd & 4 Ors v Peter Kuok Khoon Hwong (SC) [1993] 1 CLJ 9
• Syarikat Jelata Bumi Sdn Bhd v Nadarajah a/l Ramasamy [2003] 3 AMR
148
• Pekeliling Triangle Sdn Bhd & Anor v Chase Perdana Bhd [2003] 1 AMR
378
• Sabil Mulia (M) Sdn Bhd v Pengarah Hospital Tengku Ampuan Rahimah
& Ors [2005] 3 MLJ 325 (CA)
• SABA Ismalic Media Sdn Bhd v Neguin Co Sdn Bhd & Anor [2005] 7 MLJ
522

4. Perpetual Injunction - Section 51(2) and Section 52 SRA

• Keet Gerald Francis Noel John v Mohd Noor b Abdullah & Ors [1995] 1
MLJ 193
General Paper 59

5. Mareva Injunction
• Mareva Compania Naviera S.A. v International Bulkcarriers S.A. [1975] 2
Lloyds Law Rep 509
• Ninemia Maritime Corp v Trave Schiffahrtsgesellschaft mbH & Co KG
[1984] 1 AER 398
• Third Chandris Shipping Corp & Ors v Unimarine S.A [1979] 2 AER 972
• Barclays-Johnson v Yuill [1980] 3 AER 190
• Z Ltd v A and others [1982] 1 AER 556
• TDK Tape Distributors (UK) Ltd v Videochoice Ltd & Ors [1985] 3 AER
345
• Stewart Chartering Ltd v C & O Managements S.A [1980] 1 WLR 460
• Aspatra Sdn Bhd & 21 Ors v Bank Bumiputra M'sia Bhd (SC) [1988] 1
MLJ 97
• Creative Furnishing Sdn Bhd v Wong Koi (SC) [1989] 2 MLJ 153
• Art Trend Ltd v Blue Dolphin Pte Ltd [1983] 1 MLJ 25
• Hock Hua Bank (Sabah) Bhd v Yong Liuk Thin [1995] 2 MLJ 213
• Zainal Abidin bin Haji Abdul Rahman v Century Hotel Sdn Bhd (FC)
[1982] 1 MLJ 260
• Electronic & Electrical (M) Sdn Bhd v Daewoo Corporation (No. 1) [2003]
3 AMR 125
• Letrik Vista (M) Sdn Bhd v Lian Fah Engineering Sdn Bhd [2002] 3 MLJ
381
• Lee Guan Par v Hotel Universal Sdn Bhd [2005] 4 MLJ 589 (CA)

6. Injunction to perform negative agreement - section 55 SRA

• Lumley v Wagner [1843-60] All ER 368
• Ehrman v Bartholomew [1898] 1 Ch 671
• Warner Brothers v Nelson [1937] 1 KB 209
• Dato' H M Shah & Ors v Dato Abdullah bin Ahmad (SC) [1991] 1 MLJ 91
• Pertama Cabaret Nite Club Sdn Bhd v Roman Tam (FC) [1981] 1 MLJ
149

7. Anton Piller Order

• Interfood Sdn Bhd v Arthur Andersen & Co [2003] 8 CLJ Supp 334 (HC)
• Justrite Sdn Bhd v Shapadu Energy and Engineering Sdn Bhd & Ors
[2002] 3 MLJ 501

ooOoo
 CIVIL PROCEDURE

© All rights reserved 2020

No part of this outline may be reproduced without the permission of the Qualifying Board, Malaysia
Civil Procedure 60

PREFACE

A. INTRODUCTION

1. Civil procedure is the body of procedural law that sets out the rules and
standards for the civil courts when adjudicating civil suits/ action. The rules
govern, amongst others, how a civil suit/ action may be commenced, what
kind of service of process (if any) is required, the types of pleadings or
applications and orders allowed in civil cases, the timing and manner of
discovery or disclosure, the conduct of trials, the process for judgment,
various available modes of enforcement of judgments and how the courts
must function.

2. Candidates are required to be familiar with the Rules of Court 2012 (ROC)
which is the new combined rules for the High Courts, the Sessions Courts and
the Magistrates’ Courts. The new ROC governs all proceedings in the High
Courts and in the Subordinate Courts.

3. Candidates are expected to understand the amendments and changes

effected in the ROC as compared with the previous rules of courts, and to
note that some of the case authorities decided under the previous rules of
courts may no longer be applicable in view of the ROC.

4. Candidates are expected to have a thorough understanding of the ROC and

also other statutes specifically mentioned in this Course Outline, and the
amendments made to the relevant Acts and statutes

5. Candidates must be familiar with decided cases where applicable.

6. Candidates are also required to have sufficient knowledge of the Practice

Directions, the Chief Judge’s Circulars and Registrar's circulars and letters.

B. SALIENT STATUTES
1. Rules of Court 2012
2. Courts of Judicature Act 1964 (CJA)
3. Subordinate Courts Act 1948 (SCA), Limitation Act 1953 (LA)
4. Specific Relief Act 1950 (SRA)
Civil Procedure 61

5. Rules of the Federal Court 1995 (RFC)

6. Rules of the Court of Appeal 1994 (RCA)
7. Public Authorities Protection Act 1948 (PAPA)
8. Government Proceedings Act 1956 (GPA)
9. Debtors Act 1957 (DA)

C. TEXTBOOKS AND REFERENCE BOOKS

1. Malaysian books on civil procedure:

(a) Grace Chang, Introduction to Civil Procedure in Malaysia and Singapore

(Malayan Law Journal);

(b) Hamid Sultan bin Abu Backer, Janab's Key to Civil Procedure in Malaysia
and Singapore (Janab (M) Sdn. Bhd.);

(c) Tan Sri Datuk Chang Min Tat, Mallal's Supreme Court Practice
(Malayan Law Journal);

(d) Dass & Abdul Hamid, Subordinate Courts Practice;

(e) Jeffrey Pinsler, Civil Practice in Singapore and Malaysia;

(f) Malaysian Court Practice (Malayan Law Journal Sdn. Bhd.);

(g) Halsbury’s Laws of Malaysia (volume on ‘Civil Procedure’); and

(h) Malaysian Rules of Court 2012: An Anotation (LexisNexis Malaysia Sdn.

Bhd.).

2. English textbooks and reference books which are useful:

(a) D.B. Casson, Odgers on High Court Pleading and Practice;

(b) Langan & Lawrence, Civil Procedure;

(c) O'Hare & Hill, Civil Litigation;

Civil Procedure 62

(d) Civil Litigation & Remedies (Blackstone Press);

(e) Stuart Sime, A Practical Approach to Civil Procedure; and

(f) David Barnard, The Civil Court in Action (2nd. Edition).

3. Candidates must bear in mind that the reference to English textbooks and
reference relating to procedures applicable in England may not necessarily
reflect the position in Malaysia.

D. EXAMINATION

1. There will be SEVEN (7) questions in the examination paper

2. Candidates are required to answer ONE (1) COMPULSORY question

and THREE (3) out of SIX (6) questions. A question may be divided into
several parts and may deal with more than one (1) area of civil procedure.

3. The question may not make reference to a particular court (e.g.

Subordinate Court or High Court) in which the action commenced. In
such a case the candidate may answer the question by applying the
ROC.

4. Candidates are allowed to refer to the Rules of Court 2012, which will be
provided during the examination. Candidates are not allowed to bring into the
examination hall their own copy of the said statute or any other statutes not
specified here.

ooOoo
Civil Procedure 63

I. PRELIMINARY MATTERS

1. Purpose of Civil Procedure

(a) Boustead Trading (1985) Sdn Bhd v Arab Malaysian Merchant Bank Bhd
[1995] 3 MLJ 331 (FC)
"... That justice of the case should be the overriding consideration is
axiomatic. After all, courts exist to do justice according to the law as
applied to the substantial merits of a particular case. And the rules of
court and practice are created to facilitate the attainment of justice, not
its obstruction."

(b) See also Order 1A of ROC 2012

2. Sources of civil procedure

(a) Statutes, e.g Courts of Judicature Act, 1964; See also Courts of
Judicature (Amendment) Act, 1998;

(b) Rules, e.g Rules of Court 2012;

(c) Case laws; and

(d) Practice Direction.

3. Cause of Action

(a) It is pertinent to ask if the plaintiff has a cause of action which is

complete.

(b) See Yong J in Lim Kean v Choo Koon [1970] 1 MLJ 158 at p. 159
(emphasis added):
"A cause of action normally accrues when there is in existence a person
who can sue and another who can be sued, and when all the facts have
happened which are material to be proved to entitle the plaintiff to
succeed." (see Halsbury's Laws of England, 3rd Ed., pages 193 and
194). In Cooke v Gill, Brett J. defined "a cause of action" to mean
"every fact which is material to be proved to entitle the plaintiff to
succeed." This definition was approved by the Court of Appeal in Read v
Brown in which Lord Esher M.R. in his grounds of judgment said that it
 Civil Procedure 64

included "every fact which it would be necessary for plaintiff to prove, if

traversed, in order to support his right to the judgment of the court.”.

(c) In Taib bin Awang v Mohamad bin Abdullah [1983] 2 MLJ 413. P was convicted in the
Kadi's court. He appealed. Before the appeal was heard he commenced an action for
malicious prosecution. P's action failed because the cause of action was incomplete.
Why was it incomplete?

(d) Assume that D promises to repay a debt he owes to P in ten

instalments. D defaults after two (2) instalments. May P immediately
bring an action claiming the remaining eight (8) instalments?
• Sio Koon Lin v S B Mehra [1981] 1 MLJ 225.
• Simetech (M) Sdn Bhd v Yeoh etc Sdn Bhd [1992] 1 MLJ 11

4. Is the plaintiff in time to sue?

(a) Periods of limitation are prescribed in many statutes e.g.:

(i) Limitation Act 1953 (Act 254);
(ii) Public Authorities Protection Act 1948 (Act 198);
(iii) Railways Act 1991 (Act 463);
(iv) Civil Law Act 1956 (Act 67);
(v) Limitation Ordinance (Cap. 72) (Sabah); and
(vi) Limitation Ordinance (Cap. 49) (Sarawak).

(b) Limitation periods under the Limitation Act 1953 (LA)

(i) Actions founded on a contract or tort - six years from the date on
which the cause of action accrued (section 6 (1) LA).

When does the cause of action accrue in –

• a breach of contract; and
• the tort of negligence?
o Pirelli Cable Works v Oscar [1983] 1 All E.R. 65;
o Cartledge v Jopling [1963] A.C. 758;
o Credit Corp v Fong Tak Sin [1991] 1 MLJ 409 (time
runs although plaintiff ignorant of defendant's
identity);
Civil Procedure 65

o Sivapiran v Lim Yoke Kong [1992] 2 MLJ 381;

o Pang Yeow Chow v Advance Specialist Treatment
Engineering Sdn. Bhd. [2014] 8 CLJ 188.

(ii) Action upon any judgment - twelve years (12) from the date on
which the judgment become enforceable
• section 6(3) LA
(iii) Action to recover land - twelve years (12) from the date on
which the right of action accrued
• section 9(1) LA

(iv) Action to recover principal secured by a charge or to enforce

such charge – twelve (12) years from the date when the right to
receive the money accrued
• section 21(1) LA

(v) Fraudulent breach of trust or recovery of trust property or

proceeds thereof in the possession of trustees - no limitation
• section 22(1) LA
• Palaniappa Chettiar v Lakshamanan Chettiar [1983] 2 MLJ
177

(vi) Actions based on breaches of trust other than (v) above - six (6)
years from the date on which the right of action accrued
• section 22(2) LA
• Sok-Chun Tong v Vincent Tang Fook Lam & Anor [1999] 6
CLJ 381

(vii) Action in respect of any claim to the personal estate of a

deceased person or to any share or interest therein (whether
Civil Procedure 66

under a will or intestacy) – twelve (12) years from the date when
the right to receive the share or interest accrued.

(viii) Set-off and counterclaim - see section 31 LA and the words "to
have been commenced on the same date as the action in which
the set-off or counterclaim is pleaded".

(c) Extension of limitation in case of disability

If a right of action accrued to a person under disability the action may

be brought (subject to sections 6 (4), 8 and 29 LA) at any time before
the expiration of six years when such person ceased to be under a
disability or died, whichever event first occurred, notwithstanding that
the period of limitation has expired
• section 24(1) LA

(d) Fresh accrual of action on acknowledgment (section 26 LA)

(i) Where a right of action to recover land has accrued and the
person in possession acknowledges the title of the person to
whom the right accrued, the right shall be deemed to be accrued
on and not before the acknowledgement.

(ii) Where a right of action to enforce a charge has accrued and the
chargee or the person liable for the debt makes any payment,
the right shall be deemed to have accrued on and not before the
date of the last payment.

(iii) Where any right of action has accrued to recover any debt or
other liquidated pecuniary claim, or any claim to the personal
estate of a deceased person or to any share or interest therein,
and the person liable or accountable therefor acknowledges the
claim or makes any payment in respect thereof, the right shall be
deemed to have accrued on and not before the date of the
acknowledgment or the last payment.

(iv) Every acknowledgment referred to in section 26 LA must be in

writing and signed by the person making it (section 27(1) LA).
Civil Procedure 67

• Tenaga Nasional Bhd v Kamarstone Sdn. Bhd. FC [2014] 1

CLJ 207

(e) Postponement of limitation period in case of fraud or mistake (section

29 LA).

(i) Where, in the case of any action for which a period of limitation
is prescribed by LA, either -
• the action is based upon the fraud of the defendant or his
agent or of any person through whom he claims or his
agent; or
• the right of action is concealed by the fraud of any such
person as aforesaid; or
• the action is for relief from the consequences of a
mistake,

the period of limitation shall not begin to run until the plaintiff
has discovered the fraud or the mistake, as the case may be, or
could with reasonable diligence have discovered it.

(ii) However, section 29 LA does not enable any action to be

brought to recover, or enforce any charge against, or set aside
any transaction affecting, any property which -

• in the case of fraud, has been purchased for valuable

consideration by a person who was not a party to the
fraud and did not at the time of the purchase know or
have reason to believe that any fraud had been
committed; or

• in the case of mistake, has been purchased for valuable

consideration, subsequently to the transaction in which
the mistake was made, by a person who did not know or
have

(f) reason to believe that the mistake had been made.

o Beaman v A.R.T.S. [1949] 1 K.B. 550 (fraud);
o Yong & Co v Wee Hood Teck Corporation [1984]
MLJ 39 (concealment)
o Shephard v Cartwright [1953] Ch. 728 (fraud and
Civil Procedure 68

concealment)
o Phillips-Higgins v Harper (1954) 1 Q.B. 411
(mistake)
o Credit Corporation (M) Bhd v Fong Tak Sin [1991] 1
MLJ 409 (failure to add a party within the limitation
period is not within section 29 LA)
o RB Policies v Butler [1950] 1 KB 76
o Sivaperan v Lim Yoke Kong [1992] 2 MLJ 318
("fraud" not limited to common law fraud or deceit;
unconscionable conduct may be fraud)

(g) Public Authorities Protection Act 1948 (PAPA)

• Section 2 PAPA reads as follows:

"2. Where, after the coming into force of this Act, any suit,
action, prosecution or other proceeding is commenced in the
Federation against any person for any act done in pursuance or
execution or intended execution of any written law or of any
public duty or authority or in respect of any alleged neglect or
default in the execution of any such written law, duty or
authority the following provisions shall have affect -
(a) the suit, action, prosecution or proceeding shall not lie or
be instituted unless it is commenced within thirty-six
months next after the act, neglect or default complained of
or, in the case of a continuance of injury or damage, within
thirty-six months next after the ceasing thereof...".
• Lee Hock Ning v Govt of Malaysia [1972] 2 MLJ 12;
• Phua Chin Chew & Ors v K.M. & Ors. [1987] 2 MLJ 604;
• Wee Choo Keong v Ketua Pengarah Perkhidmatan Awam Malaysia
[2014] 9 CLJ 90
Civil Procedure 69

(h) See also sections 7(5) (dependency claim) and 8(3) (claim in tort
against the estate of a deceased person) of the Civil Law Act 1956
(CLA)
• Kuan Hip Peng v Yap Yin & Another [1965] MLJ 252

(i) Limitation must be pleaded (see section 4 LA and O. 18 r. 8 ROC)

• Tham Kok Onn v Perwira Habib Bank Malaysia Bhd (2004) 4 CLJ
818
• TASJA Sdn. Bhd. v Golden Approach Sdn. Bhd. [2011] 3 CLJ 751

(j) No power to extend time when limitation period has expired:

• Lee Lee Cheng v Seow Peng Kwai (1960) MLJ 1.

5. Arbitration

• Section 10 Arbitration Act 2005 – stay of legal proceeding pending

arbitration.

See Press Metal Sarawak Sdn. Bhd. v Etiqa Takaful Bhd [2016] 9 CLJ 1,
FC; Arch Reinsurance Ltd v. Akay Holdings Sdn Bhd [2019] 1 CLJ 305,
FC
See also
Elf Petroleum v Winelf Petroleum [1986] 1 MLJ 177
Seng Hup Guan Co v Sri Tinusa Sdn Bhd [1986] 1 MLJ 345
Lai Siew Wah Sdn. Bhd. v Ng Chin [1988] 1 MLJ 393 (the situation
where the respondent alleges fraud)
Hashim bin Majid v Param Cumaraswamy & Ors [1993] 2 MLJ 20
Thamesa Designs Sdn Bhd & Ors v Kuching Hotels Sdn Bhd [1993] 3
MLJ 25 (lack of jurisdiction must be raised early in the proceedings: too
late at the stage of appeal).
Seloga Jaya Sdn Bhd v Pembinaan Keng Ting (Sabah) Sdn Bhd [1994]
2 MLJ 97.

6. Locus standi
• See Mohamed b Ismail v Tan Sri Osman [1982] 2 M.L.J. 133; 177 (FC)
Civil Procedure 70

Atip bin Ali v Josephine Doris Nunis [1987] 1 MLJ 82

• Govt of Malaysia v Lim Kit Siang [1988] 2 MLJ 12

7. Res Judicata
• Joseph Paulus Lantip v Unilever PLC [2012] 7 CLJ 693
• Ibig @ David Rampas v Terisah Bahan [2016] 8 CLJ 790
• Malpac Capital Sdn Bhd v Yong Toi Mee [2016] 8 CLJ 613
• Scott & English (M) Sdn Bhd v Yung Chen Wood Industries Sdn Bhd
[2018] 6 CLJ 271

8. Regard shall be to justice and effect of non-compliance with rules

• O. 1A and O. 2 ROC
• United Malayan Banking Corp Bhd v Ernest Cheong Yong Yin [2001] 2
CLJ 31 CA
• Megat Najmuddin Dato Seri (Dr) Megat Khas v Bank Bumiputra (M) Bhd
[2002] 1 CLJ 645 FC
• Beaufort Baru Sdn Bhd v Gopalan Krishnan VK Gopalan [2003] 3 CLJ
868 HC
• Megnaway Enterprise Sdn Bhd v Soon Lian Hock [2003] 5 CLJ 103 HC
• Terrence Simon Marbeck v Kerajaan Malaysia [2003] 6 CLJ 120 HC
• Tudingan Timur Sdn. Bhd. v Che Mat bin Padali [2013] 6 AMR 32
• Duli Yang Maha Mulia Tunku Ibrahim Ismail Ibni Sultan Iskandar Al-Haj
v Datuk Captain Hamzah Mohd Noor [2009] 4 CLJ 329 - not applicable
when the compliance of rules is mandatory
• Rule 3A Rules of the Court of Appeal 1994.

II. CIVIL COURTS AND THEIR JURISDICTION

1. In which court should the action be commenced?

2. Civil Courts of original jurisdiction

Civil Procedure 71

(a) Magistrates' Court;

(b) Sessions Court;
(c) High Court; and
(d) Special Courts/Tribunals.

3. The Subordinate Courts

(a) Magistrates’ and Sessions Court; and

(b) Both have no jurisdiction at all in respect of certain matters - see

section 69 and section 93 SCA.

4. Magistrates’ Court

(a) Subject to the limitations above, a First Class Magistrate has jurisdiction
to try all actions "where the amount in dispute or value of the
subject-matter does not exceed one hundred thousand ringgit" (section
90 SCA).
(b) For jurisdiction of a Second Class Magistrate, see section 92 SCA. See
matters triable by Second Class Magistrate in Practice Direction 6/1987.

5. Sessions Court

(a) Subject to section 69 SCA, a Sessions Court has jurisdiction to try all
actions and suits "where the amount in dispute or value of the
subject-matter does not exceed one million ringgit and also jurisdiction
to try all actions and suits of a civil nature for the specific performance
or rescission of contracts or for cancellation or rectification of
instruments, within the jurisdiction of the Sessions Court" (section 65
SCA).
• BNM v G. Glesphy [1992] 1 MLJ 151.

(b) A Sessions Court may, in respect of any action or suit within the
jurisdiction of the Sessions Court, in any proceedings before it –
Civil Procedure 72

(i) grant an injunction; and

(ii) make a declaration,

whether or not any other relief, redress or remedy is or could be claimed

[section 65(5) SCA].

(c) See section 65(1)(a) SCA- unlimited jurisdiction in respect of motor

vehicle accidents, landlord and tenant and distress.

(d) Where the claim exceeds the value limits prescribed in the Act, the
parties may consent that the Sessions Court shall have jurisdiction to
try the action or suit. The agreement must be in writing and filed in the
Sessions Courts, see section 65(3) & (4) SCA). For Magistrates’ Court,
see section 93(1) SCA.

6. Interest
• Foo Sey Koh & Ors v Chua Seng Seng & Ors [1986] 1 MLJ 501.

7. A plaintiff may relinquish any portion of his claim in order to bring the
action or suit within the jurisdiction of the Sessions or Magistrates' Court
(sections 67 and 93(1) SCA). But claims may not be split for this purpose
(section 68 SCA).

8. Defence or counterclaim involves matters beyond the jurisdiction or

exceeds the value limits of the Sessions Court (section 66 SCA).

• Either party may apply to the High Court to have the action transferred.

• Procedure for application.

9. Immovable property

(a) The general rule

• section 69(a) SCA
Civil Procedure 73

(b) See section 70(1) SCA - "jurisdiction to hear and determine any action
or suit for the recovery of immovable property".

(c) Claim for rent, mesne profits or damages arising from the defendant
holding over or resisting the plaintiff's right of possession and damages
for breach of any covenant or agreement in relation to the premises
may be added
• section 70(2) SCA). Subsection 70(3) SCA repealed w.e.f.
24.6.1994.

(d) No jurisdiction if, in the opinion of the Court, there is a bona fide
question of title involved.
• Hiew Kim Swee v G.C. Gomez (1955) MLJ 170.

The question as to whether there is a bona fide question of title

involved is not to be decided on the pleadings alone but on the
proceedings as a whole.

• SeeThompson J's three illustrations in Hiew Kim Swee's case (p.

174 of the judgment).

(e) Sessions Court has jurisdiction to adjudicate on title to immovable

property with the consent of the parties
• section 71 SCA

(f) See the special position of Sarawak in section 71A SCA.

(g) Jurisdiction of Magistrates' Court -

• section 93 (1) SCA.
Civil Procedure 74

10. Interpleader proceedings in the Subordinate Courts

• Sections 73 and 93 SCA.

11. Territorial jurisdiction of the Subordinate Courts

• Third Schedule SCA.

12. High Court

(a) Two High Courts of co-ordinate jurisdiction and status, namely High
Court in Malaya and High Court in Sabah and Sarawak (see Article
121(1) of the Federal Constitution (FC)). Jurisdiction limited by Article
128 FC (validity of written law made by Parliament or State; dispute
between Federation and states and between one state and another)
and Article 130 FC (interpretation of Constitution referred by the Yang
di-Pertuan Agong).
• Kaliammal Sinnasamy v Majlis Agama Islam Wilayah Persekutuan
(JAWI) & Ors [2011] 2 CLJ 165 in respect of Article 121 (1A) FC

(b) For the "local jurisdiction" of each High Court, see section 3 of the
Courts of Judicature Act 1963 (JCA).
• Syarikat Nip etc Contractor v Safety and General Insurance Co
Sdn Bhd [1975] 2 MLJ 115;
• Sova Sdn Bhd v Kasih Sayang Realty Sdn Bhd [1988] 2 MLJ 268
(each branch of the High Court has concurrent jurisdiction; but
defendant must not be put to inconvenience).
• See O. 92 r. 3A ROC - on transfer of proceedings.

(c) Civil jurisdiction of the High Court (sections 23 and 24 CJA).

(d) Section 23 CJA.

• Lam Kok Trading v Yorkshire Switchgear [1976] 1 MLJ 239. In
this case the contract was made outside jurisdiction. The
Civil Procedure 75

defendant did not reside or have his place of business within the
jurisdiction. The alleged breach of contract occurred outside the
jurisdiction.

• BBMB v ITC [1989] 1 SCR 598 (application of section 23(1)(b)

SCA - "defendant or one of several defendants resides or has his
place of business ..."). See also Mee Ying etc v Che Jah bte
Abdullah [1992] 2 MLJ 263.

• Distillers Biochemicals v Thompson [1971] A.C. 458 (P.C.).

An English company manufactured and sold in England to an
Australian company a preparation known as Distival, the principal
ingredient of which was thalidomide. The English company
neither warned the Australian company nor on the printed
matter supplied with the drug warned a possible purchaser of the
harmful effect on a foetus if the drug were taken by a pregnant
woman. The plaintiff's mother, whilst pregnant, purchased the
drug in New South Wales.
The plaintiff was born with defective eyesight and without arms.
The plaintiff proceeded against the English company in the
Supreme Court of New South Wales. The company filed a
conditional appearance and applied for the writ to be set aside
on the ground that the court had no jurisdiction because the
claim was not "a cause of action which arose within the
jurisdiction" under section 18(4) of the Common-Law Procedure
Act of New South Wales. The application was dismissed by the
Supreme Court and that decision was upheld by the Court of
Appeal.
On appeal to the Privy Council it was held that "cause of action"
in section 18(4) of the Common-Law Procedure Act meant "the
act on the part of the defendant which gave the plaintiff cause
of complaint" and, since the complaint that the English company
Civil Procedure 76

failed to warn the plaintiff's mother of the dangers of taking the

drug occurred when she purchased the drug in New South
Wales, the plaintiff's cause of action arose within the jurisdiction.

• PT Gunung Madu Plantations v Muhammad Jimmy Goh Mashun

[2018] 1 AMR 641. The High Court will have jurisdiction if the
Plaintiff’s claim falls within any one of the sub-paragraphs to
Section 23(1) CJA.

(e) Choice of law clause does not oust jurisdiction

• Elf Petroleum v Winelf Petroleum [1986] 1 MLJ 177
• American Express etc v Tan Loon Swan [1992] 1 MLJ 727
• The Fehmarn [1958] 1 W.L.R. 159; The Eleftheria [1970] P. 94

III. CIVIL JURISDICTION OF THE COURTS

1. Civil Jurisdiction of Sessions Court

(a) Section 69 SCA:

“Sessions Court shall have no jurisdiction in actions, suits or

proceedings of a civil nature -
(a) relating to immovable property except provided in sections 70
and 71;
(b) to enforce trusts;
(c) for accounts;
(d) for declaratory decrees except in making a declaration under
paragraph 65(5)(b) and interpleader proceedings under section
73;
(e) for the issue or revocation of grants of representation of the
estates of deceased persons or the administration or distribution
Civil Procedure 77

thereof;
(f) wherein the legitimacy of any person is in question;
(g) except as specifically provided in any written law for the time
being in force, wherein the guardianship or custody of infants is
in question; and
(h) except as specifically provided in any written law for the time
being in force, wherein the validity or dissolution of any marriage
is in question”.

(b) Section 70 SCA:

“(1) Subject to subsection (4), a Sessions Court shall have jurisdiction

to hear and determine any action or suit for the recovery of
immovable property, and thereupon to issue an order to the
proper officer of the Court to put the plaintiff in possession of the
property.

(2) In any such action or suit, there may be added a claim for rent
or mesne profits and for damages arising to the plaintiff from
the defendant holding over or resisting his right of possession or
re-entry and for damages for breach of any covenant, condition
or agreement in relation to the premises.

(3) Repealed by Act A887/94.

(4) Except as provided in section 71, the aforesaid jurisdiction shall

not be exercised in any case where, in the opinion of the Court,
there is a bona fide question of title involved and, subject to that
section, recovery of possession of any immovable property
under this section shall be no bar to the institution of an action,
suit or proceeding of a civil nature in the High Court for trying
the title thereto.”
Civil Procedure 78

(c) Section 71 SCA:

“If, in any action or suit before a Sessions Court, the title to any
immovable property is disputed, or the question of the ownership
thereof arises, the Court may adjudicate thereon if all parties interested
consent; but, if they do not all consent, the President of the Sessions
Court shall apply to the High Court to transfer the action or suit to
itself.”

(d) Section 71A SCA:

“Sections 70 and 71 shall not apply to any action or suit concerning land
in Sarawak to which there is no title issued by the Land Office in
Sarawak and in which all the parties are subject to the same native
system of personal law.”

(e) Section 72 SCA:

“A Sessions Court shall have jurisdiction to issue writs or warrants of

distress for rent.”

(f) Section 101A SCA:

“A Sessions Court Judge shall have the power to hear any matter or
proceedings in chambers.”

(g) Third Schedule:

“SUBORDINATE COURTS ACT, 1948

THIRD SCHEDULE

[Section 99A]
ADDITIONAL POWERS OF SESSIONS COURTS AND
MAGISTRATES' COURTS

2. Power to stay proceedings unless they have been instituted in the

District in which -
Civil Procedure 79

(a) the cause of action arose; or

(b) the defendant resides or has his place of business; or
(c) one of several defendants resides or has his place of business;
or
(d) the facts on which the proceedings are based exist or are
alleged to have occurred; or

(e) for other reasons it is desirable in the interest of justice that the
proceedings should be had.”.

2. Civil Jurisdiction of Magistrates

(a) Section 90 SCA:

“Subject to the limitations contained in this Act, a First-Class Magistrate

shall have jurisdiction to try all actions and suits of a civil nature where
the amount in dispute or value of the subject-matter does not exceed
one hundred thousand ringgit.”;

(b) Section 93 SCA:

“(1) Subsections 65(3) and (4) and of sections 66 to 70 and 72 to 74

shall apply mutatis mutandis to Magistrates' Courts:
Provided that for the purpose of proceedings in Magistrates'
Courts, paragraph 73(b) shall be read as if the words "one
hundred thousand" were substituted for the words "one million".

(2) Nothing in this section shall operate to extend the jurisdiction of

Second Class Magistrates as otherwise limited by this Act.”.

3. Civil Jurisdiction of High Court

Section 23 of the Courts of Judicature Act 1964 provides as follows:

Civil Procedure 80

“Section 23. Civil Jurisdiction of High Court – General

(1) Subject to the limitations contained in Article 128 of the Constitution the
High Court shall have jurisdiction to try all civil proceedings where -

(a) the cause of action arose; or

(b) the defendant or one of several defendants resides or has his place
of business; or

(c) the facts on which the proceedings are based exist or are alleged to
have occurred; or

(d) any land the ownership of which is disputed is situated,

within the local jurisdiction of the Court and notwithstanding anything

contained in this section in any case where all parties consent in writing within
the local jurisdiction of the other High Court.

(2) Without prejudice to the generality of subsection (1), the High Court
shall have such jurisdiction as was vested in it immediately prior to Malaysia
Day and such other jurisdiction as may be vested in it by any written law in
force within its local jurisdiction.”.
• Goodness for Import and Export v Phillip Morris Brands Sarl [2016] 7
CLJ 303, FC
• Hap Seng Plantations (River Estates) Sdn Bhd v Excess Interpoint Sdn
Bhd [2016] 4 CLJ 641, FC – in relation to the definition of “local
jurisdiction”)

IV. MODES OF ORIGINATING PROCESS

1. In the Subordinate Courts and the High Court

(a) Two (2) modes under the ROC, namely the writ and the originating
summons
• O. 5 r. 1 ROC
Civil Procedure 81

(b) However, the modes of commencement for the following proceedings:

(i) bankruptcy proceedings under the Bankruptcy Act 1967;

(ii) proceedings related to the winding up of companies and capital
reduction under the Companies Act 1965;
(iii) criminal proceedings under the Criminal Procedure Code [Act
593];
(iv) proceedings under the Election Offences Act 1954 [Act 5];
(v) matrimonial proceedings under the Law Reform (Marriage and
Divorce) Act 1976 [Act 164];
(vi) land references under the Land Acquisition Act 1960 [Act 486];
(vii) proceedings for admission to the bar under the Legal Profession
Act 1976 [Act 166], Advocates Ordinance of Sabah [Sabah Cap.
2], Advocates Ordinance of Sarawak [Sarawak Cap. 110]; and
(viii) proceedings under the Income Tax Act 1967 [Act 53],
are to be governed by the written laws listed in Appendix C to the
Rules of Court, 2012 (O. 94 r. 2 ROC, Appendix C).

2. Originating Summons (O.S.)

(a) Features and advantages of the O.S;

(b) When proceedings must be begun by O.S. (O. 5 r. 3 ROC);

(c) When proceedings are appropriate to be begun by O.S. (O. 5 r. 4(1)

ROC) -

• Pesurohjaya Ibu Kota Kuala Lumpur v Public Trustee & Ors

[1971] 2 MLJ 30
This was a claim by way of O.S. for costs and compensation
amounting to $338,378.45 for removal of squatters from the
respondents' land by the applicant. The respondents contended
that the procedure adopted by the applicant was wrong in law
because disputed questions of law and fact were involved.
Civil Procedure 82

Raja Azlan Shah J (as he was then) said:

"I now come to the question of procedure. The respondents
contend that the action should have proceeded by way of writ
and not originating summons because disputed questions of fact
and law are involved. When a question of fact is at issue action is
to be by way of writ and not by originating summons. This is
because the facts have to be established by examination and
cross - examination of witnesses. In the present case the
disputed question of fact would be as to the number of squatter
families removed from the said land. The question now is
whether the number of squatter families is a relevant question
rendering it necessary to be established by examination of
witnesses in court. The determination of number of squatter
families would be crucial under the unamended 1969 Regulations
because the mode of computing compensation under regulation
7(a)(v) is by squatter families. But with the amendment the
method of computing is by way of area." [Therefore, the
question of how many squatter families were removed was not
relevant and hence not a fact crucial to the determination of the
case].

• National Land Finance Co-operative Society Ltd v Sharidal Sdn

Bhd [1983] 2 MLJ 211
S agreed to sell, and N agreed to buy certain immovable property
subject to the approval of the Foreign Investments Committee
(F.I.C.). The F.I.C. refused its approval but suggested that the
property be transferred to a joint venture company of which at
least 30% of its equity is held by Bumiputras. N contended that
the agreement became void when the F.I.C. refused its approval.
N proceeded by way of an O.S. for a declaration to that effect. S
challenged the procedure adopted and asserted that the writ was
the appropriate mode of commencement. Wan Hamzah J said:
Civil Procedure 83

"Counsel for the appellants objected to the respondents taking

the proceedings by an Originating Summons instead of by a writ.
He argued that there are matters of credibility of witnesses and
issues of facts which could only be decided by oral evidence
instead of by sworn affidavits. With respect we disagree with the
submission. The issue involved in this case is purely a matter of
construction of the sale and purchase agreement between the
parties. No other evidence is needed to determine the issue than
the massive correspondence that passed between them and their
solicitors. We think that the learned judge was right in holding
that the issue can be decided on the basis of the documents
exhibited in court together with the undisputed facts disclosed
and that there are no issues relevant to the case which requires
evidence to be called at a trial. We would further add that there
is nothing to prevent the appellants from cross-examining Haji
Ahmad Roose bin Haji Mohd Ali if they were not happy with his
affidavits. In this case the appellants surely had the opportunity
to cross-examine him, but they did not avail themselves of it and
let this opportunity to pass by. We are therefore of the view that
the procedural objection raised by the appellants had no
substance.”

(d) When O.S. should not be used to commence proceedings-

• Abdul Majid v Haji Abdul Razak [1971] 2 MLJ 228
• Ng Wan Siew v Teoh Sin [1963] MLJ 103
Thompson J:
"Before departing from the case, I should make one observation.
I would have made it earlier had it not been of academic interest
as far as this case is concerned by reason of the order as to
costs made in the Court below. It is to the effect that these
proceedings should have been started by writ and not by
originating summons. Theoretically they could have been
Civil Procedure 84

started either by writ or by originating summons but as has been

said again and again that when it is known there is going to be
conflict of testimony and a necessity for taking parol evidence
the proceedings should be commenced by writ and a plaintiff
who is successful may be deprived of any additional costs
caused by his having commenced proceedings by way of
originating summons.";

(e) See O. 7 r. 2(1A) ROC- Every originating summons shall state in its
intitulement the particular rule of court and provisions of written law
under wich the court is being moved.

3. Writ

(a) Features;

(b) When proceedings must be begun by writ (O. 5 r. 2)

• Seah Choon Chye v Saraswathy Devi [1971] 1 MLJ 112

(c) Proceedings which are more appropriate to be begun by writ: The

Plaintiff intends to apply for judgment under O. 14 or O. 81 or for any
other reason considers the proceedings are more appropriate to be
begun by writ (O. 5 r. 4(1)).
• See generally Lim Cho Hock v Speaker, Perak State Legislative
Assembly (1979) 2 MLJ 85.

4. Position where the wrong process is used to commence proceedings

(a) Wrong mode O. 2 r. 1(3) ROC. See also O. 28 r. 8 ROC

• Ting Ling Kiew v Tang Eng Iron Works [1992] 2 MLJ 217
• Lee Phet Boon v Hock Thai Finance Corp. Bhd [1994] 2 MLJ 448
• Cheow Chew Khoon v Abdul Johari [1995] 1 MLJ 457
• Hartecon JV Sdn Bhd v Hartela Contractors Ltd [1996] 2 MLJ 57 -
Civil Procedure 85

Court has discretion whether to allow a proceeding irregularly

commenced to continue or to be quashed

(b) Other procedural matters O. 2 r. 1(1) ROC

Discretion O. 2 r. 1(3) ROC

• Karisma Saujana Sdn. Bhd. v Albert a/l Antoni Tass [2008] 8 MLJ
693
• Dato Ting Check Sii v Datuk Haji Mohamad Tufail bin Mahmud
[2007] 5 MLJ 339
• Harkness v Bell's Asbestos & Engineering Ltd [1967] 2 Q.B. 729
• Leal v Dunlop etc [1984] 2 All E.R. 207
• Syarikat Joo Seng v Habib Bank [1986] 2 MLJ 129

(c) see White Book 2/1/2 and Mallal 2/1/2.

V. THE WRIT

1. Form - see Form 2

2. Writ is effective only when issued

• Jumatsah v Voon Kim Kuet [1981] 1 MLJ 254
• Jumatsah was applied in the Brunei case of Kok Song Kong v Brunei
Shell [1988] 2 MLJ 440

3. Indorsement

(a) Writ must be indorsed with a statement of claim or with a concise

statement of the nature of the claim made or the relief or remedy
required (O. 6 r. 2(1)).

(b) Example of general indorsement

"The Plaintiff's claim is for damages for breach by the Defendant of a
written contract dated 2.2.1995 whereby the Defendant agreed to
Civil Procedure 86

appear at the Plaintiff's theatre at ... for six months commencing ...
and for an injunction restraining the Defendant from appearing at any
other theatre during the said period in breach of the aforesaid
contract".

(c) General indorsement should (without descending to particulars) clearly

bring home to the defendant precisely what is the claim which is being
made against him. Defect can be cured by subsequent delivery of a
proper statement of claim
• 18 r. 15(2) ROC
• Pontin v Wood [1962] 1 Q.B. 594
• Khoo Kay Hock v E.J. Ketting [1978] 2 MLJ 57

4. Duration and renewal of the writ

(a) A writ has a life span of six (6) months’

• O. 6 r. 7 ROC - "beginning from the date of its issue."

A writ issued on 2 February 1994 cannot be served on 2 February

1995.
• Trow v Ind Coope (West Midlands) [1967] 2Q.B. 899.

(b) A writ may be renewed but renewal is not automatic.

• O. 6 r. 7(2) & (2A) ROC
• Battersby & Ors v Anglo-American Oil Co. & Ors [1945] 1 K.B. 23
where Lord Goddard said:
"It is the duty of a plaintiff who issues a writ to serve it
promptly, and renewal is certainly not to be granted as of course
on an application which is necessarily made ex parte. In every
case care should be taken to see that the renewal will not
prejudice any right of defence then existing, and in any case, it
should only be granted where the court is satisfied that good
reasons appear to excuse the delay in service, as, indeed, is laid
down in the order. The best reason, of course, would be that
the defendant has been avoiding service, or that his address is
unknown, and there may well be others ...".
• Binning Bros Ltd (In liquidation) v Thomas Eggar Verrall Bowles
Civil Procedure 87

(a firm) [1998] 1 All ER 409

• Duli Yang Maha Mulia Tunku Ibrahim Ismail Ibni Sultan Iskandar
Al-Haj v Datuk Captain Hamzah Mohd Noor [2009] 4 CLJ 329 - a
mandatory requirement.
• Khoo Kim Hock v Mayban Finance Bhd [2011] 4 CLJ 250

(c) Older cases indicate that renewal after the limitation period has expired
will only be permitted in the most exceptional circumstances.

• Megaw J in Heaven v Road & Rail Wagons Ltd [1965] 2 All E.R.
409 gave some examples of exceptional cases:

o agreement to defer service

o delay induced by words or conduct of D
o D evaded service

• See now Kleinwort Benson Ltd v Barbrak Ltd [1987] 1 A.C. 597
(for good reason; not necessary to show exceptional
circumstances; whether good reason exists depends on the
circumstances of each case).

• See the following cases:

o Ng Ching Kee v Lim Ser Hock [1975] 2 MLJ 183 where the
fact that the file was mislaid for some time and that
negotiations were continuing with the defendants were
held irrelevant.
o Kun Kay Hong v Tan Teo Huat [1985] 1 MLJ 404
(Application to set aside writ renewed after expiry of
limitation. P's delay arose because the solicitors of D's
insurers asked to withhold service).
o Arab-Malaysian Credit Bhd v Tan Seang Meng [1995] 1
MLJ 525 (jurisdiction to grant several extensions; 0. 6 r. 7
and 0. 92 r. 4; discretion of the court).
o Lloyd Triestino Societa v Chocolate Products (Malaysia)
Sdn Bhd [1978] 2 MLJ 27
Civil Procedure 88

o Castle Inn Sdn Bhd v Bumiputra-Commerce Bank Bhd

[2007] 8 CLJ 545

VI. ORIGINATING SUMMONS

1. Form. See O. 7 r. 2 ROC

2. Contents. See O. 7 r. 3 ROC

3. Issue, duration & renewal. See O. 7 r. 5 – 6 ROC

4. Hearing of the summons. See O. 28 r. 3A, 4, 5 ROC

5. Supporting Affidavit. See O. 28 r. 3C ROC

6. Counterclaim by Defendant. See O. 28 r. 7 ROC

7. Failure to prosecute with despatch. See O. 28 r. 10 ROC

8. Dispute as to Jurisdiction. See O. 28 r. 3B ROC

Civil Procedure 89

VII. PARTIES

1. Who should be the plaintiff/s or defendant/s?

(a) Right to sue in person, 0. 5 r. 6(1) ROC

(b) Body corporate must be represented by solicitor, 0. 5 r. 6(2) ROC

2. Persons under disability (O. 76 ROC)

(a) Must sue and be defended by litigation representative

• rules 2(1) and (2) ROC

(b) Litigation representative must file consent (rule 3(7) ROC and Form
188) and act by a solicitor (rule 2(3) ROC);

(c) Costs in suits brought or defended by infants; and

(d) Service on persons under disability

• rule 14(2) ROC.

3. Incorporated bodies

• See e.g. section 21 Companies Act 2016, section 3(2) Public Trustee Act
1950.

4. Partnership Firms (O. 77 ROC)

(a) A partnership may sue or be sued in the name of the firm
• O. 77(1) ROC

(b) Advantages of suing a partnership in the firm's name

(c) Suing a partnership in contract and tort.

5. Individual trading as a firm (O. 77 r. 9 ROC)

May be sued in his business name but can only sue in his name.
• Mallal’s Supreme Court Practice para. 77/1/6
• Mason v Mogridge (1892) 8 TLR 805
Civil Procedure 90

6. Federal/State Government
• See Government Proceedings Act 1956 and O. 73 ROC
• Chong Chieng Jen v Government of State of Sarawak [2019] 329

7. His Majesty the Yang Di Pertuan Agong

• Article 32 Federal Constitution (FC) (as amended by the Constitution
(Amendment) Act 1993 (Act A848)) states that the Yang di-Pertuan
Agong shall not be liable to any civil proceedings whatsoever in any
court except in the Special Court established under Part XV of the
Constitution.
• Article183 FC which provides that no action shall be instituted against
the Yang di-Pertuan Agong and Rulers in their personal capacity unless
the Attorney General personally gives consent.

8. Their Highnesses the Rulers

• Article 181(2) FC (as amended by Constitution (Amendment) Act 1993
(Act A848)): "No proceedings whatsoever shall be brought in any Court
against a Ruler of a State in his personal capacity except in the Special
Court established under Part XV." Expression "Ruler" is defined in
Article 160 FC. See also Article 183 FC, supra.

• Pre-amendment cases
o Karpal Singh v Sultan of Selangor [1988] 1 MLJ 64
o Daeng Baha Ismail in [1987] 1 MLJ vi
o Stephen Kalong Ningkan v Tun Hj Openg [1967] 1 MLJ 46.

9. Foreign Sovereigns/ Foreign states

• Mighell v Sultan of Johore [1894] 1 Q.B. 149
• Duff Development Co v Govt of Kelantan [1924] A.C. 797
• Village Holdings etc v Her Majesty the Queen in Right of Canada [1988]
2 MLJ 656
Civil Procedure 91

10. Foreign missions in Malaysia

• Diplomatic Privileges (Vienna Convention) Act 1966
• International Organisations (Privileges and Immunities) Act 1992
• Diplomatic Privileges (Vienna Convention) (Amendment) Act 1999
• The Vienna Convention on Consular Relations and Optional Protocols
(1963) provides as follows:

“Article 43. IMMUNITY FROM JURISDICTION

Consular officers and consular employees shall not be amenable to the
jurisdiction of the judicial or administrative authorities of the receiving
State in respect of acts performed in the exercise of consular functions.
The provisions of paragraph 1 of this Article shall not, however, apply
in respect of a civil action either:
Arising out of a contract concluded by a consular officer or a consular
employee in which he did not contract expressly or impliedly as an
agent of the sending State; or
by a third party for damage arising from an accident in the receiving
State caused by a vehicle, vessel or aircraft.".

11. Societies registered under the Societies Act 1966 (SA)

• Section 9(c) SA which reads:

"A society may sue or be sued in the name of such one of its members
as shall be declared to the registrar and registered by him as the public
officer of the society for that purpose, and, if no such person is
registered, it shall be competent for any person having a claim or
demand against the society to sue the society in the name of any
office-bearer of the society.”
• Mohd Latiff v Tengku Abdullah & Ors [1995] 2 MLJ 1
• Lee Thye (as President and office bearer of the Selangor Yan Keng
Benevolent Dramatic Association) v Tan Sri Ngan Ching Wen (as
President and office bearer of the Selangor Chinese Assembly Hall)
Civil Procedure 92

[1999] 6 MLJ 390

• Karting Club of Singapore v David Mak & Ors [1985] 2 MLJ 280
• Ong Boon Seong v Syed Hussein Alatas [1971] 2 MLJ 218
• Chin Mee Keong & Ors v Pesuruhjaya Sukan [2007] 6 MLJ 193
"From these authorities, it is clear that the approach should be these:
Firstly, for certain, an association cannot sue in its own name.
Preferably an action should be commenced by its registered public
officer. If none is registered as such, then it is permissible for any
officer bearer of the association to amount a claim for and on behalf of
its members. This would put him on the same footing as a
representative for others having the same interest in the proceeding
which is permitted under O. 15 r. 12(1) of the ROC."

12. Trade Unions

• A registered trade union may sue and be sued under the name by
which it was registered

• section 25 Trade Unions Act 1959 (Act 262)

13. Estates of deceased persons

(a) Specific provisions on survival of actions on death and limitation periods

for suing personal representatives

• subsections 8(1) and 8(3) CLA which provide:

"(1) Subject to this section, on death of any person all causes
of action subsisting against or vested in him shall survive
against, or, as the case may be, for the benefit of, his estate:
Provided that this subsection shall not apply to causes of action
for defamation or seduction or for inducing one spouse to leave
or remain apart from the other or to any claim for damages on
the ground of adultery."
Civil Procedure 93

"(3) No proceedings shall be maintainable in respect of a

cause of action in tort which by virtue of this section has
survived against the estate of a deceased person, unless
proceedings against him in respect of that cause of action
either -
(a) were pending at the date of his death; or
(b) are taken not later than six months after his personal
representative took out representation."

• Lee Lee Cheng v Seow Peng Kwang [1960] 26 MLJ 1

• Airey v Airey [1958] 2 Q.B. 300

• Consider this problem:

X commits a tort in 1980. Y the victim does not sue and the cause
of action is time-barred in 1986. X dies in 1992. X's executor
extracts probate today. Is Y's claim resuscitated? See Airey v
Airey (supra).

(b) Administrator cannot sue or be sued before grant is extracted

• Comptroller of Income Tax v Yan Tai Min [1965] 31 MLJ 225
(cannot be sued);
• Ingall v Moran [1944] 1 All E.R. 97;
• Ang Hoi Yin v Sim Sie Hau [1969] 2 MLJ 3 (cannot sue);
• Ruhani bt Mohiat v Abdul Karim [1993] 3 CLJ 524 (can sue after
grant approved; failure to extract is not fatal);
• Jigarlal Kantilal Doshi v Amanah Raya Bhd [2014] 8 CLJ 704

(c) Can an executor sue before probate is extracted?

"It is quite clear that an executor derives his title and authority from the
will of his testator and not from any grant of probate. The personal
property of the testator, including all rights of action, vests in him upon
the testator's death, and the consequence is that he can institute an
Civil Procedure 94

action in the character of executor before he proves the will. He

cannot,
it is true, obtain a decree before probate, but this is not because his
title depends on probate, but because the production of probate is the
only way in which, by the rules of the court, he is allowed to prove his
title":
per Lord Parker in Meyappa Chetty v Subramaniam Chetty [1916] 1
A.C. 603 at pp. 608-9.

(d) Can an executor be sued before a grant is extracted?

• Mohamidu Mohideen Hadjiar v Pitchey [1894] A.C. 437.

(e) Is a writ issued in the name of a dead person as a -

• plaintiff; or
• defendant,

a nullity?
o Dawson etc v Dove [1971] 1 Q.B. 330.
o O. 15, r. 6A (3) ROC

(f) Plaintiff dies in the course of proceedings:

• Govt of Malaysia v Taib bin Abdul Rahman [1991] 2 MLJ 175
• 0. 15 r. 7(2) ROC (Supreme Court interpreted this as giving the
court discretion to add any person even though he is not a
personal representative).

(g) Consent of the person to be added a party under r 41 of the Rules of

the Court of Appeal 1994 is not required
• Ex P Guan Teik Sdn. Bhd. (Substituting Lim Oo Guan, deceased)
[2010] 4 CLJ 289).
14. Suing the estate of a deceased person where no grant has been
extracted

(a) Subsection 39(1) of the Probate and Administration Act 1959 reads as
follows:
"Where a person dies intestate his movable and immovable property
until administration is granted in respect thereof shall vest in the
Civil Procedure 95

Official Administrator in the same manner and to the same extent as it

vests in the Probate Judge in England".
(Corporation means Amanah Raya Berhad)

May the Official Administrator be sued as representative of a deceased

under this provision?
• Selvarajah v Official Administrator [1978] 2 MLJ 108.

(b) O. 15 r. 6A ROC provides that the action may "be brought against the
estate of the deceased"
• Poraviappan Arunasalam Pillay (sebagai pentadbir harta pesaka
nadarajah sithambaram pillai) v Periasamy Sithambaram Pillai
[2015] 6 CLJ 857, FC: no requirement that a probate or LA to
have been granted.

(c) Originating process may be commenced against "the personal

representatives of A.B. deceased" as defendants.

(d) How service is to be effected

• rule 6A (4)(a) ROC.

(e) Before making an order under rule 6A (4) ROC the Court may require
notice to be given to any insurer of the deceased who has an interest in
the proceedings and such persons (if any) having an interest in the
estate as it thinks fit
• rule 6A (5) ROC

(f) Appointment of the Official Administrator to represent the deceased's

estate and the effect of such an appointment
• rule 6A (5A ROC)
Civil Procedure 96

(g) Where Official Administrator's appointment is limited to service,

judgment in default of appearance cannot be entered:
• Re Amirteymour [1979] 1 W.L.R. 63
• Section 30 Probate and Administration Act 1959
• Re Simpson [1936] P. 40

15. Representative actions

• O. 15 r. 12(1) ROC: Where numerous persons have the same interest

in proceedings … the proceedings may be begun and, unless the Court
otherwise orders, continued by or against any one or more of them as
representing all or as representing all except one or more of them.

“Given a common interest and a common grievance, a representative

suit is in order if the relief sought is in its nature beneficial to all whom
the plaintiffs propose to represent”
Per Lord McNaughton in Duke of Bedford v Ellis [1901] A.C. 1.

• In Smith v Cardiff Corporation, the Corporation decided to increase the

total rent income from council houses by an increase payable by
tenants of over a certain income. An action was brought by four
tenants acting "on behalf of themselves and all other tenants of houses
provided by the defendants under [the Housing Act 1936]" claiming a
declaration that the scheme was ultra vires. It was held that since the
scheme did not affect all the council tenants adversely, the
representative action as brought was misconceived.

• See also:
o Campbell v Thompson [1953] 1 Q.B. 445
o John v Rees [1970] 1 Ch. 345
o Prudential etc. Ltd v Newman Industries Ltd [1981] 1 Ch. 229
o Roche v Sherrington [1982] 1 W.L.R. 599
Civil Procedure 97

o Atip bin Ali v J.D. Nunis [1987] 1 MLJ 82 (requirements not

satisfied - defamation is a personal action and a class cannot be
defamed)
o Palmco etc v Sakapp [1988] 2 MLJ 624 (all requirements were
satisfied)
o Voon Keng & Ors v Syarikat Muzwina [1990] 3 MLJ 61 (all
requirements satisfied)
o Mohd Latiff v Tengku Abdullah & Ors [1995] 2 MLJ 1
o K. Muthulagu (on behalf of himself and 91 ors) seeking the same
Remedies) v Lembaga Pelabuhan Klang [1996] 1 CLJ 198;
o Selvam Holdings (M) Sdn Bhd v Grant Kenyon & Eckhardt Sdn
Bhd (BSN Commercial Bank (M) Bhd & Ors, Interveners) [2000]
3 MLJ 201
o Tong Tai Holdings Sdn Bhd v List of 98 Persons in Occupation of
the said Lands in Block 1 and Block 2 [2003] 3 AMR 155

16. Joinder of parties (O. 15 r. 4 ROC)

Two (2) or more persons may be joined together in one action as

plaintiffs or as defendants with the leave of the court or where:
• if separate actions were brought, a common question of law or fact
would arise in all the actions; and

• the claims arise out of the same transaction or series of transactions.

o S. Constantine v Social Security Organisation (Socso) & Anor [1998]
1 CLJ 433
o Maju Puncakbumi Sdn. Bhd. v Ch’ng Hon Keong [2019] 8 AMR 627

17. Misjoinder and nonjoinder of parties

(a) After P has commenced his action,

• P may apply to add a co-plaintiff

• P may apply to add an additional defendant
Civil Procedure 98

• D may apply to add a co-defendant

• A party may apply to be struck out
• A stranger may apply to intervene

O. 15 r. 6 ROC reads:

“(1) No cause or matter shall be defeated by reason of the misjoinder

or nonjoinder of any party; and the Court may in any cause or
matter determine the issues or questions in dispute so far as
they affect the rights and interests of the persons who are
parties to the cause or matter.

(2) At any stage of the proceedings in any cause or matter the

Court may on such terms as it thinks just and either of its own
motion or on application -

(a) order any person who has been improperly or

unnecessarily made a party or who has for any reason
ceased to be a proper or necessary party, to cease to be
a party;

(b) order any of the following, persons to be added as a

party, namely:

• any person who ought to have been joined as a

party or whose presence before the Court is
necessary to ensure that all matters in dispute in
the cause or matter may be effectually and
completely determined and adjudicated upon, or

• any person between whom and any party to the

cause or matter there may exist a question or issue
arising out of or relating to or connected with any
relief or remedy claimed in the cause or matter
which in the opinion of the Court it would be just
and convenient to determine as between the
parties to the cause or matter;
but no person shall be added as a plaintiff without
his consent signified in writing or in such other
manner as may be authorised.”.
Civil Procedure 99

(b) Under this rule the Court may add, substitute or strike out parties and
allow intervention.

(c) This rule prevents an action being defeated by the misjoinder or

nonjoinder of parties. It seeks to bring all parties to disputes relating to
one subject matter before the Court at the same time so that the
dispute may be determined without the delay, inconvenience and
expense of separate actions and trials.

(d) Procedure

(e) Adding or substituting parties

o Rule 6(2)(b) ROC
o Malite Sdn Bhd v Abdul Karim & Ors. [1981] 2 MLJ 29;
o Government of Malaysia v Mohamed Amin bin Hassan (1986) 1
MLJ 224
o The Federal Court’s decision in Chong Fook Sin v Amanah Raya
Bhd (as the administrator for the estate of Raja Nong Chik bin
Raja Ishak, deceased) [2010] 7 CLJ 917 regarding the power of
the Court of Appeal to determine an intervener application under
O. 15 r. 6(2)(b) ROC.

Defendant adding a co-defendant:

• Hee Awa & Ors v Syed Muhamad & Anor [1988] 1 MLJ 300 [D
applying to join another as co-defendant. Objection by P who
alleged third party procedure more appropriate. Is objection valid?]
• [1989] 1 MLJ 1xxxiii for a criticism of this case.
• Tajjul Ariffin v Heng Cheng Hong [1993] 2 MLJ 143 (left to the
court's discretion; Hee Awa does not lay down any firm rule or fetter
the court's discretion).
• Abidin bin Umar v Doraisamy & Anor [1994] 1 MLJ 617 (Hee Awa
applied).

(f) Joinder of co-defendant takes effect from the date of the court order
on addition of co-defendant, and does not operate retrospectively to
Civil Procedure 100

the date of commencement of the action – the newly added co-

defendant is entitled to rely on defence of limitation period.

• Instantcolor System Sdn Bhd v Inkmaker Asis Pacific Sdn Bhd

[2017] 2 MLJ 2 MLJ 697, FC

(g) Striking out parties

• rule 6(2)(a) ROC.

(h) Intervention
• A person who is not a party to an action may be added as
defendant (or intervener) against the wishes of the plaintiff
either on his own application or the application of the defendant
or in rare cases by the Court of its own motion.
• See the wide power in rule 6(2)(b)(ii) ROC
• See also:
o Pegang Mining v Choong Sam [1969] 2 MLJ 52 (P.C.)
o Haji Abdul Rahman v Hassan [1983] 1 MLJ 93
o Tengku Jaya v Mohamed [1987] 2 MLJ 97
o Gula Perak Bhd v V Mathai [1988] 3 MLJ 358 (interest not
established)
o Tohtonku Sdn Bhd v Superace (M) Sdn Bhd [1989] 2 MLJ
298; [1992] 2 MLJ 63 (interest established).
o Arab Malaysian etc Bhd v Jamaluddin [1991] 1 MLJ 27
(interest established)
o Hong Leong Finance Bhd v Staghorn Bhd [1995] 2 MLJ
847 (meaning of "at any stage of the proceedings" in 0.15
r. 6(2))
o See the Federal Court decision at citation [2008] 2 CLJ
121
o Tradium Sdn Bhd v Zain Azahari bin Zainal Abidin [1995] 1
MLJ 668
o Tai Choi Yu v Syarikat Tingan Lumber Sdn Bhd [1998] 4
MLJ 275
Civil Procedure 101

o Ulmas Sdn. Bhd. v Hi Summit Construction Sdn. Bhd.

[2017] 2 AMR 420
o Pacific Orient Insurance Co. Bhd. v Kumari a/p Nadason
[2019] 3 AMR 166

(i) Not applicable to Judicial Review Proceedings

• Majlis Agama Islam Selangor v Bong Boon Chuen [2009] 6 MLJ
307

VIII. SERVICE OF ORIGINATING PROCESS

1. Service of Writ

(a) Writ must be served on each defendant

• O. 10 r. 1(1) ROC

Subject to the provisions of any written law and these rules, a

writ must be served personally on each defendant or by sending it by
prepaid A.R. Registered post addressed to his last known address and
so far as practicable, the first attempt at service shall be made not later
than one month from the date of issue of the writ.

(b) What is personal service and how is it effected?

• O. 62 r. 3 ROC
• Thompson v Pheney 1 Down 443
• Roase v Kempthone 103 L.T. 730
• Banque Russe v Clarke [1894] W.N. 203

(c) Exceptions to personal service

(i) Where the defendant's solicitor indorses on the writ or other

originating document that he accepts service on behalf of the
defendant: O. 10 r. 1(2) ROC

(ii) Where the defendant enters an unconditional appearance before

being served: O. 10 r. 1(3) ROC
Civil Procedure 102

(iii) Where an order for substituted service has been made: O. 62 r.

5 ROC

(iv) Where in an action for recovery of land, the Court has made an
order to affix a copy of the writ on some conspicuous part of the
land: O. 10 r. 4 ROC

(v) In civil proceedings against the Government: O. 73 r. 3 ROC and

section 26 Government Proceedings Act 1956

(vi) Where service is effected in a foreign country in accordance

with the law of that country: O. 11 r. 5(3) ROC
• Commerzbank (South East Asia Ltd) v Tow Kong Liang
[2011] 3 CLJ 127.

(d) Service on persons under disability

• O. 76 r. 14 ROC

(e) Service on partners

• O. 77 r. 3 ROC

(f) Service on corporations

• O. 62 r. 4 ROC
i. registered office (personally or post)
ii. principal office (registered post only)
iii. handing a copy to director, secretary or principal officer
iv. handing a copy or by registered post to person authorised
to accept service on behalf of a foreign company
registered under Part XI Companies Act 1965 (CA).

(g) Service on companies registered under the CA

• section 350 CA: "A document may be served on a company by
leaving or sending it by registered post to the registered office of
the company".
• Lee Boon Fatt v Takhdir Trading Sdn Bhd [1984] 2 MLJ 341;
• Yew Leek etc Bhd v Foong Engineering etc Bhd [1990] 2 MLJ 62
• Summit Company (M) Sdn Bhd v Nikko Products (Sdn) Bhd
Civil Procedure 103

[1985] 1 MLJ 69 (change of registered office takes effect on

lodgment of the change with the Registrar)
• Madurai Veeran a/l Gopal v Industrial Court Malaysia & Anor
[1998] 5 MLJ 692

(h) Societies registered under the Societies Act 1966 (SA)

• Section 9(c) SA which reads:
"A society may sue or be sued in the name of such one of its
members as shall be declared to the Registrar and registered by
him as the public officer of the society for that purpose, and, if no
such person is registered, it shall be competent for any person
having a claim or demand against the society to sue the society in
the name of any office-bearer of the society".

2. Substituted service

(a) Court has power to make an order for substituted service if "it is
impracticable for any reason to serve" the writ personally on the
defendant
• O. 62 r. 5 ROC

(b) Application: by summons supported by affidavit in Form 134

• Re Nirmala(s) a/p Muthiah Selvarajah [1988] 2 MLJ 616.

(c) Modes to be used to effect substituted service. For form of the order
for substituted service
• Form 133.

(d) Necessary to show that it is impracticable to effect personal service.

See Practice Note 1/68 which prescribes the steps to be taken.
• Not applicable where D's whereabouts not known (Re Nirmala,
supra).

(e) Unless the terms of the order for substituted service are duly complied
with, the service is bad.

• Leow Boke Chooi v Asia Motor Co. Ltd. [1967] 2 MLJ 109
Civil Procedure 104

• Development & Commercial Bank Berhad v Aspatra Corporation

Sdn Bhd & Anor [1996] 1 CLJ 141

3. Service out of the jurisdiction

(a) Distinction between jurisdiction and service out of jurisdiction.

(b) The position of a foreign defendant who is -

(i) within the local jurisdiction

• Atmaram v Essa Industries [1969] 1 MLJ 44

• Watkins v North American Land & Timber Co. Ltd. [1904]
20 T.L.R. 534.
• Petrodar Operating Co Ltd v Nam Fatt Corporation, FC
[2014] 1 CLJ 18: jurisdiction over a foreign defendant

(ii) outside the jurisdiction.

(c) Service out of the jurisdiction

(i) "Service of a notice of a writ is permissible with the leave of the

Court" in certain cases specified in O. 11 r. 1(1) ROC.

(ii) Leave will not be granted "unless it is made sufficiently to

appear that the case is a proper one for service out of the
jurisdiction"
• O. 11 r. 4(2)) ROC.

"Generally, courts exercise jurisdiction only over persons within

the territorial limits of their jurisdictions": Re Busfield (1886) 32
Ch.D. 123, C.A. per Cotton L.J. at p. 131.

"[I]t becomes a very serious question, and ought always to be

considered a very serious question ... whether this court ought
to put a foreigner, who owes no allegiance here, to the
inconvenience and annoyance of being brought to contest his
rights in this country, and I for one say, most distinctly, that I
Civil Procedure 105

think this court ought to be exceedingly careful before it allows a

writ to be served out of the jurisdiction."
per Pearson J in Societe Generale de Paris v Dreyfus Brothers
(1885), 29 Ch. D. 239

• Amin Rasheed Shipping Corp. v Kuwait Insurance Co

[1983] 2 All E.R. 884
• Joseph Paulus Lautip v Unilever PLC [2012] 7 CLJ 693

❖ Discretion exercised with care

o Normally no interference
o Exceptions - excessive cost; delay; inconvenience;
cannot obtain justice.

o The discretion point is discussed by Lord Diplock at

pp. 891-893.

(d) Service of a notice of a writ is permissible with leave if the writ action
involves –

(i) immovable property within the jurisdiction (O. 11 r. 1(1)(A)

ROC)

(ii) an action against a person ordinarily domiciled, resident or

carrying on business within the jurisdiction (O. 11 r. 1(1)(C)
ROC)

(iii) the administration of the estate of a person who died domiciled

within the jurisdiction (O. 11 r. 1(1)(D) ROC)

(iv) the execution, as to property within the jurisdiction, of the trusts

of a written instrument as defined in O. 11 r. 1(1)(E) ROC)

(v) contracts -
• made within the jurisdiction;
• made by or through an agent trading or resident within
the jurisdiction for a principal outside the jurisdiction; or
• by its terms, or by implication, governed by the law of
Malaysia
Civil Procedure 106

o O. 11 r. 1(1)(F) ROC

(vi) a breach of contract within the jurisdiction (which includes a

breach outside the jurisdiction that renders impossible the
performance of so much of the contract as ought to be
performed within the jurisdiction) (O. 11 r. 1(1)(G) ROC)

(vii) tort committed within the jurisdiction (O. 11 r. 1(1)(H) ROC)

(viii) an injunction to do or refrain from doing anything within the

jurisdiction (O. 11 r. 1(1) (I) ROC)

(ix) in an action brought against a person duly served within the

jurisdiction, a person out of the jurisdiction is a necessary or
proper party thereto (O. 11 r. 1(1)(J) ROC)

(x) certain actions by or in connection with a charge of property

(not immovable) as set out in O. 11 r. 1(1)(K) ROC

(xi) action under the provisions of any written law relating to

carriage by air (O. 11 r. 1(1)(L) ROC)

• See the following cases on O. 11 r. 1(1) ROC:

o International Corporation Ltd v Besser [1950] 1
K.B. 488
o Amin Rasheed Shipping Corpn. v Kuwait Ins. Co
[1983] 2 All E.R. 884
o Official Solicitor v Stype Investments (Jersey) Ltd
[1983] 1 All E.R. 629
o Goodness for Import and Export v Phillip Morris
Brands Sarl [2016] 7 CLJ 303, FC

(e) Application

(i) By ex parte summons supported by an affidavit in Form 8.

(ii) Contents of the affidavit (see O. 11 r. 4 ROC and Form 8).

• The affidavit must state -

o the grounds on which the application is made and
the applicable provisions of O. 11 r. 1(1) ROC;
Civil Procedure 107

o the deponent's belief that he has a good cause of

action (see Sunkyong International plc v MRDC Bhd
[1992] 2 MLJ 146 (failure to state not fatal)); and
o place or country the defendant is, or probably may
be found.

(f) Order for service out of jurisdiction. See Form 9 (actual order).

(g) Notice of the writ to be served out of the jurisdiction. See Form 7
(actual notice).

(h) How is service to be effected?

• O. 11 r. 5-8 ROC.
• Ma Boon Lan v UOB Kay Hian Private Ltd [2013] 5 CLJ 740

(i) Is substituted service valid when defendant is out of the jurisdiction?

• Bank Bumiputra v Lorrain Esme Osman [1986] 1 MLJ 426

(j) Order for service out of jurisdiction must be strictly complied with
• PJI-LEGC (Vietnam) Ltd v Q2 Engineering Sdn. Bhd. [2013] 1
AMR 780

4. Service of Originating Summons

• Rules of service in relation to Writ shall apply to Originating Summons

with the necessary modification except for O. 10 r.1(3) & (4) ROC.

IX. APPEARANCE AND DEFAULT JUDGMENT

O. 12 & 13 ROC

1. D who wishes to defend must enter appearance

• Appearance shows intention to defend and submission to the jurisdiction
of the court

2. Mode of entering appearance

• Form 11
• O. 12 r. 2 and 3 ROC
Civil Procedure 108

3. Entry of appearance does not amount to a waiver

• O. 12 r. 9 ROC

4. Appearance by body corporate

o O. 12 r. 1(2) ROC

5. Appearance by persons under disability

o O. 76 r. 6 ROC

6. Time limit for appearance

o O. 12 r. 4 ROC

Note that the time limit specified in O. 12 r. 4 ROC does not mean that if D
has not entered appearance within the prescribed time he cannot enter an
appearance at all (but see rule 5(2) ROC)

7. Default of appearance in High Court

P may enter judgment against D (O. 13 ROC)

Note: Judgment in default of appearance cannot be entered in all cases

e.g. (1) account (2) injunction (3) specific performance (4) declaration (5)
rectification
o O. 13, r. 1-5, r 6, O. 19 r. 7 ROC
o Lam Kong Co Ltd v Thong Guan Co Ltd [1985] 2 MLJ 429
o Leong Seng Kiat v Khaw See Song [1988] 2 MLJ 365 (specific
performance)
o Matland Sdn. Bhd. v Timatch Sdn. Bhd. [2014] 4 AMR 645 (injunction))
o See also O. 16 r. 5, O. 19, O. 24 r. 16, O. 26 r. 7, O. 34 r. 2, O. 35 r. 1
as examples where default judgment may be entered for reasons other
than failure to enter appearance

8. Procedure for entering judgment in default

(a) No appearance before Judge or Registrar involved.

(b) Documents: Original writ duly indorsed as to service (O. 10 r.

Civil Procedure 109

1(4) - day, date, time, on whom), affidavit verifying service (Form 135),
two completed judgment forms duly stamped (Form 75), certificate of
non-appearance (Form 12)

• See also
o Rule 56 Legal Profession (Practice and Etiquette) Rules;
o Asia Commercial Finance v BBMB [1988] 1 MLJ 33;
o PL Construction Sdn Bhd v Abdullah bin Said [1989] 1 MLJ
60 (a default judgment in breach of rule 56 ROC is valid).

(c) At what point of time is judgment entered?

o Tatchee etc v Posan Timber [1989] 1 MLJ 388

9. Judgment may be final or interlocutory

(a) Final
o O. 13 r. 1 and r. 4 ROC

(b) Interlocutory
• O. 13 r. 2 and r. 3 ROC
• Maxland Sdn. Bhd. v Timatch Sdn. Bhd. [2014] 7 CLJ 149 FC
10. Interlocutory Judgment in default
• Examples: negligence, nuisance, breach of trust.
• Damages have to be assessed.
• Procedure: O. 37 r. 1 ROC
• Declaration: must be supported by evidence of factual matrix.
o Amalan Tepat Sdn. Bhd. v Panflex Sdn. Bhd. [2011] 7 CLJ 121

11. Setting aside judgment in default of appearance

(a) Court has absolute discretion.

• Per Lord Atkin in Evans v Bartlam [1937] A.C. 473 at p. 480:
Civil Procedure 110

"The principle obviously is that unless and until the Court has
pronounced a judgment upon the merits or by consent, it is to
have the power to revoke the expression of its coercive power
where that has been obtained by a failure to follow any of the
rules of procedure."
• Tuan Haji Ahmad Abdul Rahman v Arab Malaysian Finance
Berhad [1996] 1 CLJ 241.

(b) D advised to act promptly.

• O. 42 r. 13 ROC - "within thirty days after receipt of the order or

judgment”.
o Ban Huat Seng Co Ltd v Lee Poh Soo [1967] 1 MLJ 145
o Tian Yan Onn etc v National Holdings Ltd [1988] 2 MLJ 669
(7 months 12 days - too late)
o Cheung Kong Plantations Sdn Bhd v Malayan United
Finance Bhd [2000] 3 MLJ 265
• Delay merely a factor to be taken into account. Other factors,
e.g. irregularity, defence on the merits must be taken into
account
• Fira Development Sdn Bhd v Goldwin Sdn Bhd [1989] 1
M.L.J. 40 (Decided before 0. 42 r. 13 ROC).

(c) Procedure for setting aside judgment

• Notice of Application supported by affidavit. Contents of affidavit.

(d) "Regular" and "irregular" judgment in default

• Lai Yoke Ngan & Anor v Chin Teck Kwee & Anor [1997] 2 MLJ
565
• Lee Tain Tshung v Hong Leong Finance Bhd [2000]3 MLJ 364
Civil Procedure 111

(e) If P's judgment is a regular judgment in default D must show some

evidence of prima facie defence
• Hongkong & Shanghai Banking Corporation v Ismail bin Daud &
Anor [1978] 2 MLJ 160
• Taisho Marine Insurance v Wong Poo Peng [1976] 1 MLJ 78
• Dialdas & Co (Pte) Ltd v Sin Sin & Co [1984] 2 MLJ 223

12. "Except with the leave of the Court, no judgment in default of appearance or
of pleading shall be entered against the Government in civil proceedings
against the Government or in third party proceedings against the
Government"
• O. 73 r. 7 ROC

13. Judgment entered for a greater sum

• D may apply to set aside; P can apply to amend

o Philip Securities (Pte) v Yong Tet Miaw [1988] 3 MLJ 61 (Court
has discretion).
o Cheow Chew Khoon v Abdul Johari [1995] 1 MLJ 457(judgment
is irregular; to be set aside)
o Development & Commercial Bank Berhad v Aspatra Corporation
Sdn Bhd & Anor (1996) 1 CLJ 141
o Lee Tain Tshung v Hong Leong Finance Bhd [2000] 3 MLJ 364

14. Costs
Civil Procedure 112

X. PLEADINGS: GENERAL PRINCIPLES

1. What are pleadings?

2. What is the function of pleadings?

• See Mallal pp, 178-179.
• Lee Ah Chor v Southern Bank [1991] 1 MLJ 428
• Samuel Naik Siang Ting v Public Bank Bhd [2015] 8 CLJ 944 FC

3. Trial without pleadings

• O. 18 r. 22(2).
• Supreme Court Practice, para 18/21/1 and Mallal para 18/22/1

4. The order in which pleadings are served

(a) Statement of claim by P
(b) Defence/Defence with counterclaim by D
(c) Reply by P/Defence to counterclaim by P
(d) Rejoinder by D
(e) Surrejoinder by P
(f) Rebuttal by D
(g) Surrebuttal by P

For (d) to (g) - see O. 18 r. 4 ROC and Malaysian Court Practice (Malayan Law
Journal Sdn Bhd).

5. Statement of Claim (O. 18 r. 15)

(a) Form and function
(b) If writ not indorsed with a statement of claim served before the
expiration of fourteen (14) days after D enters appearance. See O. 18 r
1 ROC.
(c) Default in service
• O. 19 r. 1 ROC.
Civil Procedure 113

6. Defence

(a) Function

(b) Defence may raise a counterclaim or a set-off

• Alloy Consolidated Sdn. Bhd. v Dato’ Dr. Hj. Adam Harun [2011] 5
CLJ 705.

(c) Serve before the expiration of fourteen (14) days after the time limited for
appearance or fourteen (14) days after service of the statement of claim,
whichever is the later
• O. 18 r. 2(1) ROC

(d) If P issues O. 14 summons no defence need be served unless and until

leave to defend is given. Time allowed (unless otherwise directed) is
fourteen (14) days after the making of the order
• O. 18 r. 2(2) ROC)

(e) Default of defence

• O. 19 r. 2-7.
• Leave of the court may be necessary in some cases: Syarikat Joo
Seng v Habib Bank [1986] 2 MLJ 129 (S.C.)

(f) Setting aside a judgment in default of defence.

• Hasil Bumi Perumahan Sdn Bhd & Ors v UMBC [1994] 1 MLJ 312
(factors to be considered)

7. Reply
• Unnecessary if P wishes to deny everything contained in the defence for
under the rules relating to joinder of issue failure to reply puts into
issue all material facts in the defence.
• O. 18 r. 14 ROC.
Civil Procedure 114

8. Defence to counterclaim

(a) The usual fourteen (14) days period applies

(b) Default of defence to counterclaim, see O. 19 r. 8 ROC.

9. Further pleadings

• No pleading subsequent to a reply or a defence to a counterclaim shall

be served except with the leave of the court.
• O. 18 r. 4 ROC.

10. Close of pleadings and joinder of issue

(a) If no reply is served, the pleadings are deemed to be closed after 14 days
after the service of the defence and there is an implied joinder of issue on
the defence.
• O. 18 r. 14(1) ROC.

(b) If a reply is served the pleadings are deemed to be closed 14 days later.
If there is no reply but there is a defence to a counterclaim the pleadings
are deemed to be closed fourteen (14) days later.

(c) Within fourteen (14) days of closing: automatic discovery

• O. 24 r. 2(1)) ROC

(d) P must within one (1) month after the pleadings are deemed to be closed
take out a summons for directions.
• O. 25 r. 1(1) ROC

11. Formal requirements of pleadings (O. 18 r. 6)

(a) Name of the court and (in Kuala Lumpur) division.

• Practice Note 7 of 87 w.e.f. 1.1.1988.
Civil Procedure 115

(b) Reference to the record of the action.

(c) Title of the action.

(d) Description of the pleading.

(e) Pleading must be in numbered paragraphs numbered consecutively,

each allegation in a separate paragraph.

(f) Dates, sums and other numbers in figures not words.

(g) Parties are always referred to as "the Plaintiff" or "the Defendant".

(h) Must be indorsed in accordance with r. 6(4) ROC.

(i) Must be signed by the party's solicitor or by the party if he sues or

defends in person.
• Maclaine Stokvis (M) Ltd v Saloma Co. [1959] 25 MLJ 241.

12. Rules of Pleadings

(a) O. 18 r. 7-12 ROC

(b) The pleadings should contain -

(i) facts, not law;
(ii) facts, not evidence; and
(iii) only those facts which are material.
(c) Facts, not law
(i) Examples of pleading law
(ii) The reason behind this rule
(iii) See Middlesex County Council v Nathan [1937] 2 K.B. 272
(iv) Unnecessary to state the principles of the common law or set
forth the contents of statute. But if a statute is relied on as the
foundation of a claim or defence, the facts necessary to bring
the case within the statute must be pleaded. Reference should
usually be made to the section relied on.
Civil Procedure 116

(v) Pleading law distinguished from raising a point of law

(d) Facts, not evidence

(e) Facts and material facts only

(i) All material facts to be stated clearly but briefly.
(ii) What are material facts?

• Per Murray Aynsley CJ on In re Estate of Lee Siew Kow

(1951) MLJ 224:
"The meaning of 'material facts' is explained in the often-
cited passage of Cotton LJ in Philipps v Philipps; "the
pleadings ... should state those facts which will put the
defendants on their guard and tell them what they have to
meet.
One has in these cases to consider what the party's
pleadings sets out to prove. Then one has to consider
whether it has been set out with sufficient precision. The
parties by their pleadings define the issues of fact which
the Court will have, ultimately, to decide."

• Per Scott L.J. in Bruce v Odhams Press [1936] 1 K.B. 697:

"The word 'material' means necessary for the purpose of
formulating a complete cause of action; and if any one
'material' statement is omitted, the statement of claim is
bad."
(iii) Omission of material facts
• Parties are bound by their pleadings and generally are not
permitted to raise an issue if not pleaded.
o Re Estate of Lee Siew Kow (1951) MLJ 224
o Wong Eng v Chock Mun Chong (1963) 29 MLJ 204
o Janagi v Ong Boon Kiat [1971] 2 MLJ 196
o Chartered Bank v Yong Chan [1974] 1 MLJ 157
o Hj Mohd Dom v Sakiman [1956] MLJ 45
o Saraswatee d/o Arumugan v Tan Chong Motor Co.
[1985] 1 MLJ 327
o Government of Perak v Muniandy [1986] 1 MLJ 490
Civil Procedure 117

o Wisma Punca Emas Sdn. Bhd. v Dr. Donal [1987] 1

MLJ 393
o Anuar bin Mat Amin v Abdullah bin Mohd Zain
[1989] 3 MLJ 313 (court took into account
contributory negligence although not pleaded or
raised by D)
o Yew Wan Leong v Lai Kok Chye [1990] 2 MLJ 152
o Lee Ah Chor v Southern Bank [1991] 1 MLJ 428
o Narayanan v Kannamah [1993] 3 MLJ 730 (court
may take into account ex facie illegality even
though not pleaded or raised by parties)
o Bato Bayi v Kerajaan Negeri Sarawak [2011] 8 CLJ
766

• Point not pleaded but raised and fully developed without

objection:
• OCBC v Philip Wee [1984] 2 MLJ 1
• Supt of Lands etc v Hamit bin Matusin & Ors [1994] 3 MLJ
185.
(iv) "Do not leap before you come to the Stile".

(v) Documents or conversations.

(vi) Matters which must be specifically pleaded.

• O. 18 r. 8(1) ROC
• Tengku Ali v Kerajaan Negeri Trengganu Darul Iman
[1994] 2 MLJ 83 (Public Authorities Protection Act 1948
must be specifically pleaded)
• Letchumanan Chettiar Alagappan (as executor to SL
Alameloo Achi (deseased) v Secure Plantation Sdn. Bhd.
[2017] 5 CLJ 418, FC (on plead of fraud)
Civil Procedure 118

13. Answering an opponent's pleadings

(a) Preliminary matters to consider.

(b) Traverse; confession and avoidance; objection on point of law. See

Odgers Chapter 9.

(c) Admission and denials (0. 18 r. 13 ROC)

• Borneo Housing etc Bhd v P.R. of the Estate of Lee Lun Wah &
Anor [1994] 1 MLJ 209
• Yam Kong Seng v Yee Weng Kai [2014] 6 CLJ 285 FC
• Saiman Umar v Lembaga Pertubuhan Ladang [2015] 9 CLJ 153
FC on the effect of general traverse made in a Statement of
Reply

14. Damages
• What rules govern the pleading of -
o general damages (No party shall quantify any claim or
counterclaim for general damages: O. 18 r. 12(1A) ROC); and
o special damages?
15. Request for further and better particulars
(a) Function and purpose
• Lim Kee Tiak v Lim Kee Tian [1987] 2 MLJ 528
(would save time and expense and narrow down issues)

(b) Facts, not evidence

(c) Procedure

(d) Request refused or not sufficiently answered

(e) See O. 18 r. 12 ROC

• Thong Kim Chea @ Thong Ming Kwei v Thong Seng & Co Sdn
Bhd & Anor (1996) 1 CLJ 153
• Skrine & Co v MBF Capital Bhd & Anor [1998] 3 MLJ 649
Civil Procedure 119

• Dato' Seri Dr Ling Liong Sik v Krishna Kumar [2002] 2 MLJ 278

XI: AMENDMENT TO PLEADINGS

O. 20 ROC

1. The basic principle

• Yamaha Motor Co Ltd v Yamaha Malaysia Sdn Bhd & Ors [1983] 1 MLJ
213
Federal Court:
"… the general principle is that the court will allow such amendments
as will cause no injustice to the other parties. Three basic question
should be considered to determine whether injustice would or would
not result (a) whether the application was bona fide (b) whether the
prejudice caused to the other side can be compensated by costs and
(c) whether the amendments would not turn the suit from one
character into a suit of another and inconsistent character."
• Brett M.R. in Clarapede v Commercial Union Association [1883] 32 W.R.
262:
"However negligent or careless may have been the first omission, and,
however late the proposed amendment, the amendment should be
allowed if it can be made without injustice to the other side. There is
no injustice if the other side can be compensated by costs."
• Tildesley v Harper [1876] 10 Ch D 393
• GL Baker Ltd v Medway Building Fund Supplies Ltd [1958] 1 WLR 1216
• The Federal Court’s decision in Hong Leong Finance Bhd v Law
Thiam Hoe [2015] 8 CLJ 1 on the application of the principles in
Yamaha Motor’s case.

2. Leave necessary except where O. 20 r. 1(1) or 3(1) ROC apply

• Application to amend before trial: by summons to the Registrar or by

agreement of all parties. Application at the trial or after the trial but
Civil Procedure 120

before judgment: by summons to the trial judge.

3. Questions for the Court

• Per McGilligan J. in Malayan Banking Ltd v Ting Ee Ngieng [1965] 2 MLJ

160:
"In Mallal's 'Supreme Court Practice' at page 342 the general principle
is stated to be that the court will allow such amendments as will cause
no injustice to the other side. It is also said, quoting from the case of
Looi Guan Kway v Low Lean Bok [1938] MLJ 35 that to determine
whether injustice would or would not result a court will ask the
following three questions:
(1) Is the application for amendment made bona fide?
(2) Will the amendments asked for cause no prejudice to the other
side which cannot be compensated by costs?
(3) Are the amendments asked for such as to turn a suit of one
character into a suit of another and inconsistent character?"
• Syarikat Ying Mui Sdn Bhd v Muthusamy a/l Sellapan & other appeals
[1999] 6 MLJ 622

4. Prejudice
• The "Benoi VI" [1980] 2 MLJ 265
• The "Kyoan Maru" QBD (Admiralty Ct.) February 28, 1980 (New Law
Journal April 17, 1980)
In August and September 1972, the plaintiffs shipped a cargo of tin,
rubber and timber on the vessel "Kyoan Maru", which was owned by
the third defendants, at ports in Malaysia and Singapore for carriage to
ports in Japan and North America. The cargo did not arrive. On
September 20, 1973, the plaintiffs issued a writ against the third
defendants claiming damages. In a defence served on March 1, 1974,
the third defendants admitted that the goods were shipped on the
vessel, and that they had issued bills of lading acknowledging shipment
in apparent good order and condition. They also admitted that the bills
Civil Procedure 121

of lading contained contracts of carriage between them and the

plaintiffs.
On March 20, 1979, the third defendants sought leave to amend their
defence, for they wished to withdraw the admission that they were the
carriers of the goods and to allege that at the material time the vessel
was demise chartered to the first defendants under a charter-party
dated October 12, 1971. The plaintiffs contended that if the
amendment were allowed, they would suffer prejudice which could not
be compensated by any order of the Court.
They maintained that if they had known about the demise
charter-party they could have obtained security from the first
defendants by arresting the vessel "Gulf King" which was also on
demise charter to the first defendants from the third defendants. The
first defendants were now in liquidation.
It was held (Sheen J) that the plaintiffs could not have obtained
security from the first defendants by arresting "Gulf King" for on the
true construction of the Administration of Justice Act 1956, s. 3(4) a
vessel on demise charter could not be arrested. But the application for
leave to amend the defence would be refused for the plaintiffs'
solicitors would have doggedly pursued any opportunity to obtain
security from the first defendants and would in all probability have
been successful. If leave were granted to amend the defence at the
present stage, the plaintiffs would be prejudiced in a way which could
not be compensated by any order of the Court (Steward v North
Metropolitan Tramways Co (1886) 16 Q.B.D. 178, and "I Congreso del
Partido" [1977] 1 Lloyd's Rep 364, applied).
• Dato' Tan Heng Chew v Tan Kim Hor [2010] 8 CLJ 1.

5. Cases where leave to amend may not be granted

(a) Futile, frivolous or not bona fide

• Alwee v Lai Kong Fook [1981] 2 MLJ 82
Civil Procedure 122

• Chip Chong Sawmill Co (Sdn) Bhd v Chai Khuin Fui [1978] 1 MLJ
24
• Ponnusamy & Anor v Nathu Ram [1959] MLJ 228
• James Capel (Far East) Ltd v YK Fung Securities Sdn Bhd [1993]
1 CLJ 416

(b) Amendment to withdraw an admission consciously made

• Hollis v Burton [1892] 3 Ch 226

(c) An amendment to raise a cause of action which accrued to the plaintiff

only after the action commenced

• Eshelby v Federated European Bank [1932] 1 KB 254

• Simetech (M) Sdn Bhd v Yeoh Cheng Liam Const. Sdn Bhd
[1992] 1 MLJ 11

(d) Amendment must not turn a suit of one character into a suit of another
and inconsistent character

• Chin Kok Kwong Construction Sdn Bhd v Sunrise Towers Sdn Bhd
[1986] 2 MLJ 41.
• Taisho Co Sdn Bhd v Pan Global Equities Bhd & Anor [1999] 1
MLJ 359 where it was stated that the amendment may be
allowed on the following principles:
"The new cause of action arises out of the same facts or
substantially the same facts as the cause of action in respect
which relief had already been claimed in the original
counterclaim.
Secondly, whether it is just to grant the leave to make the
amendment."
• Wong Ah Hee @ Wong Ah Mooi & Anor v Low Tuck Hoong
[1994] 2 CLJ 313
Civil Procedure 123

(e) An amendment to add a party or to raise a cause of action after the

expiry of the relevant limitation period unless O. 20 r. 5 ROC applies

• Liff v Peasley [1980] 1 All ER 623

• Credit Corp (M) Bhd v Fong Tak Sin [1991] 1 MLJ 409
• Suruhanjaya Pelabuhan Pulau Pinang v Boss s/o Ramasamy
[2002] 4 MLJ 153

(f) Delay in applying for amendment

• Lembaga Pelabuhan Johor v The Pacific Bank Bhd [1998] 5 MLJ

323
• Raphael Pura v Insas Berhad & Anor [2000] 1 MLJ 49
• Everise Hectares Sdn Bhd v Citibank Bhd [2011] 2 CLJ 25
• Conlay Construction Sdn. Bhd. v Perembun (M) Sdn. Bhd. FC
[2013] 9 CLJ 828

However, O. 20 r. 5(2) - (5) ROC makes it clear that there are three
cases where an amendment will be allowed notwithstanding its effect is
to defeat a defence under the Limitation Act "if the court thinks it just
to do so." These instances are:
(a) where the amendment is to correct the name of a party where
the mistake misled no person;
(b) where the amendment is only so as to alter the capacity in
which a party sues or is sued (see Suruhanjaya Pelabohan
PulauPinang v Boss s/o Ramasamy [2000] 4 MLJ 153); and
(c) where the amendment adds a new cause of action arising out of
the same facts as the original claim (e.g. claim framed in
negligence; amendment to add claim of breach of statutory
duty).
• Brickfield Properties v Newton [1971] 1 W.L.R. 863
• Liff v Peasley [1980] 1 All E.R. 623
• Evans Construction v Charrington [1983] 1 All E.R. 310
• Government of Malaysia v Mohamed Amin bin Hassan
[1986] 1 MLJ 224
Civil Procedure 124

• Hock Hua Bank Bhd v Leong Yew Chin [1987] 1 MLJ 230
• Lembaga Pemegang Amanah Yayasan Sabah & Anor v
Datuk Syed Kechik bin Syed Mohamed & Anor and other
appeals [2000] 3 MLJ 328

6. Time for application

(a) Usually before trial

(b) Mahan Singh v Govt of Malaysia [1973] 2 MLJ 149

On the third day of the hearing P applied to amend his statement of
claim. Per Sharma J:
"The prejudice referred to in the decided cases is the prejudice
whereby the position of a party may be so altered that it cannot be
compensated by costs. Leave is given to amend the pleadings even at
the hearing although the court does not readily allow such
amendments if the necessity for such amendments should have been
abundantly apparent much earlier and was not asked for. In this case,
however, although the plaintiff should have asked for an amendment
of the statement of claim at a much earlier stage I do not think the
delay is fatal to the application provided the defendant can be
compensated by costs. There can be no prejudice whatsoever to the
defendant: As I have said earlier the entire case resolves on the
determination of pure questions of law. All the evidence is already or
likely to be led on the issues which may arise as a result of the
amendment. No new cause of action is being introduced by the
plaintiff. It is only the validity of the regulations under which he was
prematurely retired that comes in question. There can possibly be no
sudden surprise about it to the defendant. The nature of the suit still
remains the same and it is not changed into a suit of another nature.
In the circumstances, I allow the amendment."

• Re Gonin [1979] 1 Ch. 16

Civil Procedure 125

• Lim Koon Ee v Mohd Saad (1962) 28 MLJ 242

• Conlay Construction Sdn. Bhd. v Perembun (M) Sdn. Bhd. [2013]
6 AMR 526
The case was heard by Suffian J. on 19, 22 and 23 January
1962. Judgment was reserved on 23 January 1962. On
23February 1962, D applied to amend his defence. Should the
amendment be allowed?
• Mallal's Supreme Court Practice p. 244.

(c) Post judgment amendment after judgment but before drawing up of

the order
• Charlesworth v Relay Roads Ltd (In liquidation) and Others
[1999] 4 All ER 397

7. Amendment without leave

(a) A writ served may be amended once at any time up to the close of
pleadings (O. 20 r. 1 ROC). Amended writ must be served unless the court
directs otherwise on P's ex parte application. Facility does not extend to
addition, omission or substitution of a party or the addition or substitution
of a new cause of action unless such amendment is made before the writ
has been served; normally therefore leave to make such an amendment
will be necessary. Amendments to a statement of claim indorsed on the
writ cannot be made under this rule but are dealt with as amendments to
a pleading (see r. 3 ROC).

(b) The pleadings may be amended once at any time up to the close of
pleadings by merely delivering the amended pleading to the other side.
The other party is automatically given the right to serve within fourteen
(14) days of his pleading in answer thereto.
Civil Procedure 126

8. Amendment of pleadings by agreement (O.20 r.12 ROC)

• Any pleading in any cause or matter may, by written agreement of all
parties, be amended before commencement of the trial.

9. Effect of amendment

• Relates back to the date of the writ.

o Sio Koon Lin v S.B. Mehra [1981] 1 MLJ 225
o Liff v Peasley [1980] 1 All E.R. 622
o Alloy Consolidated Sdn Bhd v Dato’ Dr. Hj. Adam Harun [2011] 5 CLJ
705
• Based on O. 20 r. 5 of ROC the power of amendment does not extend to
the amendment of adding a new defendant after the expiry of the
limitation period; therefore, the doctrine of relation back does not apply to
addition of co-defendant.
o Instantcolor System Sdn Bhd v Inkmaker Asis Pacific Sdn Bhd [2017]
2 MLJ 2 MLJ 697, FC

10. Failure to amend after order

• O. 20 r. 9 ROC
• Lim Oh & Ors v Allen & Gledhill (sued as a firm) (1998) 4 MLJ 645

XII: SUMMARY JUDGMENT

O. 14 & O. 81 ROC

1. The procedures under O. 14 ROC

(a) The normal course of a civil suit and its consequences

(b) Summary judgment and its nature

(c) Importance of summary judgment

Civil Procedure 127

(d) When summary judgment is not available

(i) O. 14 r. 1(2) ROC

(ii) O. 81 ROC
(iii) O. 73 r. 5(1) (P.U.(A) 193/93 w.e.f 1.8.93)
(iv) Other grounds

(e) Procedure for obtaining summary judgment

(i) Seah F.J. in National Company for Foreign Trade v Kayu Raya
Sdn Bhd [1984] 2 MLJ 300:
"We think it appropriate to remind ourselves once again that in
every application under Order 14 the first considerations are (a)
whether the case comes within the Order and (b) whether the
plaintiff has satisfied the preliminary requirements for
proceeding under Order 14. For the purposes of an application
under Order 14 the preliminary requirements are:
(i) the defendant must have entered an appearance;
(ii) the statement of claim must have been served on the
defendant; and
(iii) the affidavit in support of the application must comply
with the requirements of Rule 2 of Order 14.
It is to be observed that a case is not within Order 14(a) where
no statement of claim has been served on the defendant; (b)
where the indorsement on the writ includes a claim or claims
outside the scope of Order 14 as coming within Rule 1(2); (c)
where the affidavit in support of the application is defective, e.g.
in omitting to state the deponent's belief that there is no
defence to the claim or part to which the application relates; (d)
where the application is made in an action against the
Government [Order 73 Rule 5(1)].
If the plaintiff fails to satisfy either of these considerations, the
summons may be dismissed. If however, these considerations
Civil Procedure 128

are satisfied, the plaintiff will have established a prima facie case
and he becomes entitled to judgment. The burden then shifts to
the defendant to satisfy the Court why judgment should not be
given against him [See Order 14 Rules 3 and 4(1)]"

(ii) Time
• C.G.I.R. v Weng Lok Mining Ltd [1969] 2 MLJ 98
• Krishnamurthy v Malayan Finance Corp [1986] 2 MLJ 134
• British American etc Insurance Bhd v Pembinaan Fal Bhd
[1994] 3 MLJ 267 (explanation not accepted); MBSB v
Ghazi bin Hasbollah [1994] 2 MLJ 1 (no hard and fast rule
- discretion of the court)
• Standard Chartered Bank Malaysia Berhad v Eng Seng
Huat (1996) 2 CLJ 714; [1996] 1 MLJ 446; Perkapalan
Shamelin Jaya Sdn Bhd & Anor v Alpine Bulk Transport
New York [1998] 1 CLJ 424
• Lee Wah Bank Ltd v Chee Kong Electrical Engineering Sdn
Bhd & Ors [1999] 6 MLJ 153
• Perkapalan Shamelin Jaya Sdn Bhd v Alpine Bulk
Transport New York [1998] 1 AMR 258 - Delay alone is
not sufficient to dismiss an application, particularly where
there are no disputes or bona fide triable issues.

(iii) Notice of Application

• service of the Notice of Application - See O. 14 r. 2 ROC
and O. 14 r. 3 ROC
• Notice of Application to be served on the defendant within
14 days from the date of receipt of the sealed Notice of
Application.

(iv) Affidavit
• requirements 0. 14 r. 2(1) ROC
Civil Procedure 129

• who makes affidavit O. 14 r. 2(2) ROC.

• Non-compliance of O. 14 r. 2(1) ROC:
o Chai Cheon Kam v Hua Joo etc Sdn Bhd [1989] 2
MLJ 422

(v) Defective statement of claim

• Gold Ores Reduction Co v Parr [1892] 2 Q.B. 14;
• UMW (Sarawak) Sdn Bhd v Kim Leong Timber Sdn Bhd &
Ors [1989] 3 MLJ 177 (cannot be cured by affidavit).

(vi) Injunctive relief

• Binariang Communications Sdn Bhd v I & P Inderawasih
Jaya Sdn Bhd [2000] 3 MLJ 321.

(f) Hearing of the Notice of Application

(i) Technical objections e.g. short or defective service, defective

affidavit etc.

(ii) D shows that there is a triable issue. D is required to show "that

there is an issue or question in dispute which ought to be tried".
o Appaduray v Ananda [1982] 1 MLJ 292
o Ng Yik Seng v Perwira Habib Bank [1980] 2 MLJ 83
o Voo Min En v Leong Chung Fatt [1982] 2 MLJ 241
o Ngui Mui Khin v Gillespie Brothers [1980] 2 MLJ 9
o Bank Negara Malaysia v Mohd Ismail & Ors [1992] 1 MLJ
400
o Eushun Prop. Sdn Bhd v MBF Finance Bhd [1992] 2 MLJ
137
o Capital Insurance Berhad v Kasim bin Mohd Ali (1996) 3
CLJ 19
o Ng Lai Tien v Peregrine Finance Limited (1996) 2 CLJ 496
o Malek & Joseph Au (sued as a firm) v Bank Bumiputra (M)
Civil Procedure 130

Sdn Bhd [1998] 4 MLJ 608

• If D has filed his Defence he may raise defences over and

above those alleged in his Defence:
o Lin Securities v Noone & Co Sdn Bhd [1989] 1 MLJ
321

• Is summary judgment possible if damages have to be

quantified?
o Avel Consultants Sdn Bhd v Mohd Zain [1985] 2
MLJ 209

(iii) D raises set-off or counterclaim

Salleh Abas L.P. in Permodalan Plantations Sdn Bhd v Rachuta

Sdn Bhd [1985] 1 MLJ 157:
"What is set-off?
A set-off is a cross-claim for a sum of money by a defendant
against a plaintiff's claim for another sum of money for which
the defendant is being sued. A cross-claim is not necessarily a
set-off, merely because the word used in the pleading is
"set-off". Whether or not the plea is a set-off it has to be
determined as a matter of law and substance ... A cross-claim
which is accepted as a defence of set-off has the effect of
extinguishing either the whole or part of the plaintiff's claim (see
In re A Bankruptcy Notice [1934] Ch. 431). But to constitute a
set-off the sum of money meant as a cross-claim must from its
nature and quality be such that it is proper to be dealt with as a
defence to the plaintiff's claim and not as a separate cause or
matter ...
The characteristics of a set-off as contained in Order 18 rule 17
are that (1) it is a cross-claim for a sum of money, ascertained
Civil Procedure 131

or otherwise; (2) it is relied as a defence to meet the whole or

part of the plaintiff's claim, and (3) that it is immaterial whether
it is added or not as long as it is included in the defence. Thus, if
a cross-claim relied on by the defendant as a set-off does not
and cannot absolve the plaintiff's claim because it arises from a
separate transaction, we agree that the cross-claim is not
necessarily a set-off, though it is so described, and that such
cross-claim could, because of its nature and quality, only amount
to a counter-claim ...
What then is a counterclaim?
A counterclaim on the other hand is also a cross-claim which a
defendant has against a plaintiff but in respect of which the
defendant can bring a separate action against the plaintiff if he
wishes to do so. Thus, to all intents and purposes a
counterclaim is a separate and independent action by the
defendant, which the law allows to be joined to the plaintiff's
action in order to avoid multiplicity or circuity of suits. Like
set-off, a counterclaim is also the creation of Statutes. At
common law the court has no power to allow an action by a
plaintiff to be met by a cross-claim of the defendant against the
plaintiff. The court simply left the defendant to commence a
separate action. It was only by virtue of the Supreme Court of
Judicature Act, 1873, s. 24(3) that enabled the defendant's
counterclaim to be added to the plaintiff's suit.
In so far as our law is concerned, a counterclaim is governed by
the provisions of O. 15 r. 2 which we have already set out
earlier.
It is, therefore, clear that a counterclaim is wider than a defence
of set-off and that whilst the former is a separate action by a
defendant against a plaintiff, the latter is essentially a defence,
although a defendant is entitled to add it as counterclaim. Being
a defence to a plaintiff's action, the matter sought to be set-off
Civil Procedure 132

must essentially be connected with or form part of the matter

upon which the plaintiff's action is founded."

(iv) What order may be made if D raises a set-off or a counterclaim?

• Ronald Quay Sdn Bhd v Maheswary Sdn Bhd [1987] 1 MLJ
322 (counterclaim)

(v) Special rules concerning cheques

• Fielding and Platt Ltd. v Najjar [1969] 2 All E.R. 150
• Marina Sports Ltd v Alliance Richfield Pte Ltd [1990] 3 MLJ
5

(vi) Rule 3 ROC: "there ought for some other reason to be a trial of
that claim"
• Miles v Bull [1968] 3 All E.R. 632
• Concentrate Engineering Pte Ltd v UMBC Bhd [1990] 3
MLJ 1

(vii) D's defence arouses suspicion

Lord Devlin in Fieldrank Ltd v Stein [1961] 3 All E.R. 681

"I think that any judge who has sat in chambers in R.S.C. Order
14 summonses has had the experience of a case in which,
although he cannot say for certain that there is not a triable
issue, nevertheless he is left with a real doubt about the
defendant's good faith, and would like to protect the plaintiff,
especially if there is not grave hardship on the defendant in
being made to pay money into court. I should be prepared to
accept that there has been a tendency in the last few years to
Civil Procedure 133

use this condition more often than it has been used in the past,
and I think that that is a good tendency."

• Alliance etc v San Development Sdn Bhd 1974] 2 MLJ 94

• QBE Supreme Ins. v Syarikat Chemas [1986] 1 MLJ 56
• Coronation Electronics Ltd. v Lalchand Mahtani [1987] 1
MLJ 190
• Law Mun & Ors v Chua Lai Seng [1984] 2 MLJ 328 (if
conditional leave is given in a hearing before a Judge in
Chambers, can the same judge hear the main action?)

(viii) D shows triable issue or set-off which P would not necessarily

anticipate.

(ix) D shows no triable issue, set-off or counterclaim.

(x) The case is one of construction

(xi) Documents
• Esso Standard Malaya v Southern Cross Airways [1972] 1
MLJ 168 where Raja Azlan Shah J. (as he was then) in
Esso Standard Malaya Bhd v Southern Cross Airways
(Malaysia) Bhd held:
"It is, I think, right that an order under Order 14 should
be made only if the court thinks it is a plain case and
ought not to go to trial. If one simply has a short matter
of construction with a few documents, the court, on
summary application, should decide what in its judgment
is the true construction. There should be no reason to go
formally to trial where no further facts could emerge
Civil Procedure 134

which would throw any light upon the letters that have to
be construed."
• In Lee Wah Bank v Joseph Eu, Raja Azlan Shah C.J. (as
HRH was then) said:
"The remaining question therefore that arises here for our
determination is whether the bank is entitled to an Order
14 judgment. The principle applicable in this sort of cases
has been stated very often in this court in recent years,
the last case being in Citibank N.A. v Ooi Boon Leong and
2 Ors. Where all the issues are clear and the matter of
substance can be decided once and for all without going
to trial there is no reason why the Assistant Registrar or
the judge in chambers, or, for that matter this court, shall
not deal with the whole matter under the R.S.C. Order 14
procedure."
• Carlsberg Bhd v Soon Heng Aw & Sons Sdn Bhd [1989] 1
MLJ 104.

(xii) Statute
• Fadzil v Universiti Teknologi Malaysia [1981] 2 MLJ 196
where Raja Azlan Shah C.J. (as HRH was then) held:
"In Esso Standard Malaya Bhd v Southern Cross Airways
(M) Bhd. I pointed out that in an Order 14 case, where it
turned on the construction of a few documents, and the
court was only concerned with what, in its judgment, was
the true construction, there could be no reason to go
formally to trial where no further facts could emerge
which would throw any light on the documents that had
to be construed. We think we can safely apply that
principle to the present case. On the view we have taken
of the Construction of Act 30 of 1971, and the
Constitution of the University, the University had an
Civil Procedure 135

absolutely hopeless case. The only function of the court

is jus dicere and to ascertain the intention of Parliament
from the words used in the statutes and nothing more.
No useful purpose would then be served to go formally to
trial."

• Ng Chin Swee & Ors v Koperasi Belia Bersatu Bhd [1987]

2 MLJ 510.

(xiii) Can the court determine questions of law?

• Compare European Asian Bank v Punjab & Sind Bank

[1983] 2 All E.R. 508 (C.A.) with Chong Ngam Sen v Yeoh
Bah Chee [1981] 1 MLJ 161. Goff L.J. in European Asian
Bank v Punjab & Sind Bank [1983] 2 All E.R. 508:
"Moreover, at least since Cow v Casey [1949] 1 All E.R.
197, [1949] 1 KB 464, this court has made it plain that it
will not hesitate, in an appropriate case, to decide
questions of law under Order 14, even if the question of
law is at first blush of some complexity and therefore
takes 'a little longer to understand'. It may offend against
the whole purpose of Order 14 not to decide a case which
raises a clear-cut issue, when full argument has been
addressed to the court, and the only result of not deciding
it will be that the case will go for trial and the argument
will be rehearsed all over again before a judge, with the
possibility of yet another appeal (see Verrall v Great
Yarmouth BC [1980] 1 All ER 839 at 843, 845-846, [1981]
1 QB 202 at 215, 218 per Lord Denning MR and Roskill
LJ). The policy of Order 14 is to prevent delay in cases
where there is no defence; and this policy is, if anything,
reinforced in a case such as the present, concerned as it
Civil Procedure 136

is with a claim by a negotiating bank under a letter of

credit (see Bank fur Gemeinwi rtschaft v City of London
Garages Ltd [1971] 1 All ER 541 at 547-548, [1971] 1
W.L.R. at 158, per Cairns LJ, a case concerned with a
claim on a bill of exchange by a holder in due course)."

• Goff L.J.'s statement above was applied by the Supreme

Court in Malayan Insurance (M) Sdn. Bhd. v Asia Hotel
Sdn. Bhd. [1987] 2 MLJ 183

(g) Orders that the court may make and the circumstances when they
would be made
(i) Notice of Application dismissed with costs
(ii) Adjournment and leave to amend or file fresh affidavit but P to
pay D costs thrown away
(iii) Unconditional leave to defend and costs in cause.
(iv) Leave to defend on payment into court of whole or part of claim
in x days to abide event with costs in cause; in default, final
judgment and costs
(v) Judgment for P with costs and execution stayed until trial of
counterclaim.
(vi) Judgment for P with costs.
(vii) Akitek Timur v Tai Kian Cheong [2014] 1 CLJ 149 FC
(Interlocutory Judgment can be entered on liability with quantum
to be assessed)
(viii) Interlocutory judgment with damages to be assessed
• Datuk Mohd Ali Hj Abdul Majid v Public Bank Bhd [2014] 6
CLJ 269

(h) Defendant to pay into court

• Yorke Motors v Edwards [1982] 1 All E.R. 1024

Civil Procedure 137

"My Lords, in the Court of Appeal, it was conceded by counsel

for Mr. Yorke, and Brandon LJ in his judgment accepted the
concession as correct, that if the sum ordered to be paid as a
condition of granting leave to defend is one which the defendant
would never be able to pay, then that would be a wrongful
exercise of discretion, because it would be tantamount to giving
judgment for the plaintiff notwithstanding the court's opinion
that there was an issue or question in dispute which ought to be
tried. The same concession was repeated in the respondent's
written case, which contained the following submissions as to
the proper limitations on its applicability:
(i) Where a defendant seeks to avoid or limit a financial
condition by reason of his own impecuniosity the onus is
upon the defendant to put sufficient and proper evidence
before the court. He should make full and frank
disclosure.
(ii) It is not sufficient for a legally aided defendant to rely on
there being a legal aid certificate. A legally aided
defendant with a nil contribution may be able to pay or
raise substantial sums.
(iii) A defendant cannot complain because a financial
condition is difficult for him to fulfill. He can complain
only when a financial condition is imposed which it is
impossible for him to fulfill and that impossibility was
known or should have been known to the Court by reason
of the evidence placed before it.
I see no reason to dissent from those submissions."

(i) Can the Court dismiss P's action?

• P proceeds by way of Order 14 against D to enforce a contract.

At the hearing for summary judgment the court takes the view
Civil Procedure 138

that there was no concluded contract. May the court dismiss P's
suit?
o Diamond Peak Sdn Bhd v Tweedie [1980] 2 MLJ 31

There is no power in an application for summary judgment to dismiss

the action.

(j) Setting aside Order 14 judgment against a party who does not appear
at the hearing –
• O. 14 r. 11 ROC
• Bank Bumiputra Malaysia Bhd v Aik Lee Feedmill Co Sdn Bhd &
Ors [1999] 6 CLJ 1
• Tetracon Engineering Sdn Bhd v Manikan Sokan [2009] 6 CLJ
665
(O. 14, r. 11 ROC is clear. It merely states "any judgment ...",
and did not specify the nature or type of judgment made. The
provision makes no distinction between a judgment obtained
after hearing the merits and a judgment obtained without
hearing the merits. What r. 11 means is that as long as the
judgment was obtained in the absence of a party, the aggrieved
party may apply to set aside the judgment pursuant to this rule).
• Ann Bee (M) Sdn. Bhd. v Percetakan Soon Lee Sdn. Bhd. [2002]
2 AMR 1305 (on D’s failure to attend).

(k) Appeals

• Both P & D may appeal:

o Huo Heng Oil Co v Tang Tiew Yong [1987] 1 MLJ 139
(appeal is a rehearing)
o Tuan Haji Ahmed Abdul Rahman v Arab Malaysian Finance
Berhad [1996] 1 CLJ 241

• Where triable issue as a matter of fact or evidence (as opposed

Civil Procedure 139

to law) "it is most unlikely" that an appellate court would

interfere with the discretion of the judge
o UMBC Bhd v Pembinaan KSY Sdn Bhd [1993] 3 MLJ 45
(S.C.).
o Abdul Rahim bin Abdul Hamid & Ors v Perdana Merchant
Bankers Bhd & Ors [2000] 3 MLJ 417
o Telekom Cellular Sdn Bhd (formerly known as MRCB
Telecommunications Sdn Bhd) v Kabelect Sdn Bhd [2000]
3 MLJ 254
o Cempaka Finance Bhd v Fajar Lodge Sdn. Bhd. [2000] 5
MLJ 151

2. The procedures under O. 81 ROC

(a) O. 81 r. 1(1) ROC reads:

“In any action begun by writ indorsed with a claim -

(a) for specific performance of an agreement (whether in writing or
not) for the sale, purchase or exchange of any property, or for
the grant or assignment of a lease of any property, with or
without an alternative claim for damages; or
(b) for rescission of such an agreement; or
(c) for the forfeiture or return of any deposit made under such an
agreement,
the plaintiff may, on the ground that the defendant has no defence to
the action, apply to the Court for judgment.”

(b) When is Order 81 applicable?

• Ng Ah Bah @ Ng Looi Seng & 2 Ors v Ramanda Sdn Bhd (1996)
1 CLJ 238; [1996] 1 MLJ 62
• Masalam Sdn Bhd v Ngah Bin Embong & Anor [1998] 2 MLJ 470
• Eng Song Aluminium Industries Sdn. Bhd. v Keat Song Properties
Civil Procedure 140

Sdn. Bhd. [2018] 3 AMR 775. A condition precedent in a sale and

purchase agreement is not an impediment for an order for
specific performance to be granted.

(c) Service of Notice of Application - O. 81 r. 2(3) ROC - within fourteen

(14) days from the date of issue of the Notice of Application

(d) Differences in procedure between Order 81 and Order 14 ROC

o O. 81 r. 1(2) ROC (as soon as writ is served - appearance not

necessary)

o O. 81 r. 2(1) ROC (swear positively as to facts)

o O. 81 r. 2(2) ROC (minutes of the judgment sought)

• Failure to comply with r. 2(2) ROC not fatal

o Sova Sdn Bhd v Kasih Sayang Realty Sdn Bhd [1988] 2

MLJ 268 (Lim Beng Choon J).
o This is followed in the High Court case of Ng Kim Ho v
Chai Sze Shin and 2 Ors [2006] 3 AMR 596.
o Savant-Asia Sdn Bhd v Sunway PMI-Pile Construction Sdn
Bhd [2007] 7 MLJ 706 on the application of O. 14A [2008]
6 CLJ 681
o Am Finance Bhd v Ng Thiam Seng & Anor [2011] 6 CLJ
150

XIII: DISPOSAL OF CASE ON POINT OF LAW

ORDER 14A ROC

1. Determination of questions of law or construction

• O. 14A, r. 1
Civil Procedure 141

“(1) The Court may upon the application of a party or of its own
motion determine any question of law or construction of any document
arising in any cause or matter at any stage of the proceedings where it
appears to the Court that –

(a) such question is suitable for determination without the

full trial of the action; and

(b) such determination will finally determine the entire

cause or matter or any claim or issue therein.

(2) Upon such detrmination the Court may dismiss the cause or
matter or make such order or judgment as it thinks just.

(3) The Court shall not determine any question under this Order
unless the parties have had an opportunity of being heard on the
question.

(4) The jurisdiction of the Court under this Order may be exercised
by a Registrar.

(5) Nothing in this Order shall limit the powers of the Court under
Order 18, rule 19, or any other ptovision of these Rules.”

• In Lembaga Pembangunan Industri Pembinaan Malaysia v Konsortium

JGC Corporation [2015] 9 CLJ 273, the Federal Court said that in an O.
14A application, it is crucial that all the necessary and material facts
relating to the subject matter of the question have been duly proved or
admitted. There must be no substantial factual disputes left to be
resolved.
Civil Procedure 142

2. Manner in which applications under rule 1 may be made

• O. 14A, r. 2

“An application under rule 1 may be made by a notice of application or,

notwithstanding Order 32, rule 1, may be made orally in the course of
any interlocutory application to the Court.”

• Court of Appeal case of Petroleum Nasional Bhd v Kerajaan Negeri

Terengganu [2003] 5 AMR 697 (The appeal to the Federal Court was
dismissed: [2014] 7 CLJ 597) which spells out the factors as:

“(1) An issue is a disputed point of fact or law relied on by way of

claim or defence.

(2) A question of construction is well capable of constituting an issue.

(3) If a question of construction will finally determine whether an

important issue is suitable for determination under Order 14A and
where it is a dominant feature of the case a court ought to proceed to
so determine such issue.

(4) Respondents to an application under Order 14A are not entitled

to contend they should be allowed to hunt around for evidence or
something that might turn up on discovery which could be relied upon
to explain or modify the meaning of the relevant document. If these
were material circumstances of which the court should take account in
construing the document, they must be taken to have been known, and
could only be such as were known, to the parties when the agreement
was made. In the absence of such evidence the court should not refrain
from dealing with the application (see the Supreme Court Practice
1999, Vol 1, paragraph 14A/2/5)."
Civil Procedure 143

• This is followed in the High Court case of Ng Kim Ho v Chai Sze Shin
and 2 Ors [2006] 3 AMR 596.
• Savant-Asia Sdn Bhd v Sunway PMI-Pile Construction Sdn Bhd [2007] 7
MLJ 706 on the application of O. 14A [2008] 6 CLJ 681
• Am Finance Bhd v Ng Thiam Seng & Anor [2011] 6 CLJ 150
• Kerajaan Negeri Kelantan v Petroliam Nasional Bhd [2019] 1 CLJ 224.
In the interest of justice and fair play, it was only appropriate for the
plaintiff to be allowed to submit its own questions of law to the High
Court and it would be for the High Court to exercise its discretion as to
whether any of the additional questions were appropriate for a
determination under O. 14A proceedings.
• Chong Chieng Jen v Government of State of Sarawak [2019] 1 CLJ 329
on the power of Court relating to O. 14A

XIV: STRIKING OUT PLEADINGS AND INDORSEMENTS

O. 18 r. 19 ROC

1. O.18 r. 19(1) ROC reads:

"The Court may at any stage of the proceedings order to be struck out or
amended any pleading or the indorsement of any writ in the action, or
anything in any pleading or in the indorsement, on the ground that –

(a) it discloses no reasonable cause of action or defence, as the case may

be; or

(b) it is scandalous, frivolous or vexatious; or

(c) it may prejudice, embarrass or delay the fair trial of the action; or

(d) it is otherwise an abuse of the process of the Court;

Civil Procedure 144

and may order the action to be stayed or dismissed or judgment to be

entered accordingly, as the case may be."

• The burden is on the Defendant to prove that the application comes

under O.18 r. 19 ROC
o Harapan Permai Sdn. Bhd. v Sabah Forest Industries Sdn. Bhd.
[2011] 1 CLJ 285 and Metroplex Holdings Sdn. Bhd. v Commerce
International Merchant Bankers Bhd [2013] 8 CLJ 329).
o Razshah Enterprise Sdn. Bhd. v Arab Malaysian Finance Bhd
[2010] 2 CLJ 457

2. Application must be made promptly and should state precisely the

nature of the order being sought

• Carl Zeiss Stiftung v Rayner & Keeler Ltd (No. 3) (1970) 1 Ch. 506;
Jamir Hassan v Kang Min [1992] 2 MLJ 46.
• Cf: Ong Lean Sim & Anor v Tio Kah Hin & Ors [1985] 1 MLJ 270

3. Grounds

(a) No reasonable cause of action or defence

A reasonable cause of action means a cause of action with some chance
of success when only the allegations in the pleadings are considered. No
evidence is admissible under this head.
(P cannot proceed with both prayers for striking off under 0.18 r. 19(1)(a)
and summary judgment under 0.14 in one application: Mohd Azam Shuja
& Ors v UMBC Bhd [1995] 2 MLJ 851).

(i) Examples:
• Law v Llewellyn [1906] 1 K.B. 487
• Evans v London Hospital Medical College [1981] 1 W.L.R. 184
Civil Procedure 145

• Ronex Properties Ltd v John Laing Construction Ltd [1982] 3

W.L.R. 875
• Taib bin Awang v Mohd bin Abdullah [1983] 2 MLJ 413
• Roslan v N.Z. Insurance [1981] 2 MLJ 324
• Tuan Haji Ishak bin Ismail v Leong Hup Holdings Berhad & 5
others (1996) 1 CLJ 393
• Arah Cipta Sdn Bhd & Anor v Kian Kee Sawmills (M) Sdn Bhd &
Ors [1997] 2 MLJ 11
• Stamford Holdings Sdn Bhd v Kerajaan Negeri Johor & Ors
[1998] 1 MLJ 607
• Honan Plantations Sdn Bhd v Kerajaan Negeri Johor & Anor
[1998] 2 MLJ 498
• CB Land Sdn. Bhd. v Perunding Hashim & Neh Sdn. Bhd. [2016]
6 MLJ 320

(ii) Only in plain and obvious cases. So long as the statement of claim or
the particulars disclose some cause of action or raise some questions
fit to be decided by the court, the mere ground that the case is
weak, and not likely to succeed, is no ground for striking it out.
• Loh Holdings Sdn Bhd v Peglin Development Sdn Bhd [1984] 2
MLJ 105
• Pengiran Othman Shah bin Pengiran Mohd Yussof & Anor
(1996) 1 CLJ 257
• Dato' Wan Hashim bin Hj Wan Daud v Mazlan bin Ibrahim &
Anor [1998] 1 MLJ 176
• Citibank Bhd v ND Chandrasegaran Nee & Ors [1999] 6 CLJ 15
• Bandar Builders Sdn Bhd v United Malayan Banking Sdn Bhd
[1993] 3 MLJ 36
"The principles upon which the court acts in exercising its
power under any of the four limbs of O. 18 r. 19(1) of the RHC
are well settled. It is only in plain and obvious cases that
Civil Procedure 146

recourse should be had to the summary process under this rule

(per Lindley MR in Hubbuck & Sons Ltd v Wilkinson, Heywood &
Clark Ltd), and this summary procedure can only be adopted
when it can be clearly seen that a claim or answer is on the
face of it 'obviously unsustainable' (see AG of Duchy of
Lancaster v L & NW Rly Co). It cannot be exercised by a minute
examination of the documents and facts of the case, in order to
see whether the party has a cause of action or a defence (see
Wenlock v Moloney & Ors). The authorities further show that if
there is a point of law which requires serious discussion, an
objection should be taken on the pleadings and the point set
down for argument under O. 33 r. 3 (which is in pari materia
with our O. 33 r. 2 of the RHC) (see Hubbuck & Sons Ltd v
Wilkinson, Heywood & Clark Ltd). The court must be satisfied
that there is no reasonable cause of action or that the claims
are frivolous or vexatious or that the defences raised are not
arguable."
• Seruan Gemilang Makmur Sdn Bhd v Kerajaan Negeri Pahang
Darul Makmur [2016] 3 CLJ 1, FC

(iii) No evidence
• Zakaria bin Mohd Esa v Dato Abdul Aziz [1985] 2 MLJ 222

(b) Scandalous or embarrassing

• Malayan Banking v Gan Ong Yam [1972] 1 MLJ 32
• Pertamina v Kartika Ratna Tahir [1983] 1 MLJ 136

(c) Frivolous or vexatious

• MacDougall v Knight (1890) 25 Q.B.D. 1
• Yeng Hing Enterprise Sdn Bhd v Liow Su Fah [1979] 2 MLJ 240
• Riches v D.P.P. [1973] 1 W.L.R. 1019
Civil Procedure 147

• Lee Yoke San v Tong Lee Hwa [1978] 2 MLJ 112

• Asher v Secretary of State [1974] 2 All E.R. 156

(d) Prejudice
(e) Abuse of the process of the court

This term connotes that the process of the Court must be used bona fide
and originally and must not be abused.
• Mallal’s paragraph 18/19/9 and the White Book paragraph 18/19/9.
• Remmington v Scoles [1897] 2 Ch 1
• Ansa Teknik (M) Sdn Bhd v Cygal Sdn Bhd [1989] 2 MLJ 423 (P's O.
14 summons dismissed. P filed petition to wind-up. Court found P's
intention was to embarrass D).
• Asher v Secretary of State [1974] 2 All E.R. 156
• Gasing Heights Sdn Bhd v Aloyah Abd Rahman & Ors (1996) 3 CLJ
695
• Kerajaan Malaysia v Mat Shuhaimi Shafiei [2018] 3 CLJ 1

(f) Res judicata:

• Supt. of Pudu Prison & Ors. v Sim Kie Choon [1986] 1 M.L.J. 494.
• See also Hoystead v Commissioner for Taxation [1926] A.C. 155;
• Wong Peng Yau Benjamin v Genting Bhd & Anor [1993] 3 MLJ 713
[applicable where parties are different but there is a privity of
interest between defendants in both actions by plaintiff (P having
sued agent cannot sue principal for the same transaction)]
• Wong Sai Tack v Chien Hon Keong [2000] 5 MLJ 74
• Boo Are Ngor v Chua Mee Liang [Civil Appeal No: 02(i)-24-2008(J)]
(Where a defendant to a suit which is an abuse of process has taken
part in the suit, he is not estopped, by virtue of such participation
from subsequently having it struck out).
• Ahmad Jefri Mohd Jahri v Pengarah Kebudayaan & Kesenian Johor &
Ors [2010] 5 CLJ 865 [If a matter falls within the ambit of the judicial
Civil Procedure 148

review procedure for challenging the validity of the public authority

or public officer’s decision, an ordinary civil action filed to challenge
such decision would be an abuse of process]

(g) Academic:
• Bar Council Malaysia v Tun Dato’ Seri Arifin Zakaria [2018] 10 CLJ
129

4. Orders that the Court may make

5. Inherent Jurisdiction

XV: INJUNCTIONS

1. Classification

(a) Prohibitory
• section 52 SRA and illustrations thereto

(b) Mandatory –

• section 53 SRA and illustrations thereto.

• Gibb & Co v Malaysia Building Society [1982] 1 MLJ 271
• Binariang Communications Sdn Bhd v I&P Inderawasih Jaya Sdn Bhd
[2000] 3 MLJ 321
• Timbermaster timber Complex (Sabah) v Top Origin Sdn Bhd [2002]
1 MLJ 33

(c) Perpetual (order made after hearing both sides, in the normal course, to
bind the parties finally)

(d) Interlocutory, interim or temporary (until full hearing - see Form 58).
• Bank Islam Malaysia Bhd v Tinta Press [1986] 1 MLJ 256
Civil Procedure 149

• Keet Gerald Francis Noel John v Mohd Noor Bin Abdullah [1995] 1
MLJ 193

(e) Ex parte
• Elias bin Mooin & Anor v Dato' Zainal Abidin bin Johari [1997] 5 MLJ
359

(f) Quia timet (P's right is threatened but not yet infringed)

(g) Special forms e.g. Mareva

(h) Ad Interim Injunction

• Jagjit Singh Khanna v Dr Rakhal Das Mullick & Anor AIR 1988 Cal 95
• Jakob Renner v Scott King [2000] 5 MLJ 257
• RIH Services (M) Sdn Bhd v Tanjung Tuan Hotel Sdn Bhd [2002] 3
MLJ 1
• Besse & Ors (Managers of Kimpton Church of England Primary
School) & Ors v Woodhouse & Ors [1970] 1 AER 769
• Subashini Rajasingam v Saravanan Thangathony [2008] 2 CLJ 1

2. No injunction, directly or indirectly, against the government: section 29(2),

Government Proceedings Act 1956.
• Sabil Mulia (M) Sdn. Bhd. v Pengarah Hospital Tengku Ampuan
Rahimah [2005] 2 CLJ 122
• Superintendent of Lands and Surveys, Kuching Division & Ors v Kuching
Waterfront Development Sdn. Bhd. [2009] 6 CLJ 751

3. Interlocutory injunction

(a) Procedure

(i) case not urgent – O. 29 r. 1(3) ROC

(ii) case urgent – O. 29 r. 1(2-3) ROC

Civil Procedure 150

(if the originating process is not issued within two days of the
granting of the injunction, or such other period as the Court thinks
fit, the Court shall on application by a defendant discharge the
injunction (O. 29 r. 1(3)(b) ROC)

(iii) contents of affidavit – 0. 29 r. 2(2A) ROC

(iv) matters to be considered by the court

• AV Asia Sdn. Bhd. v Measat Broadcast Network Systems Sdn.
Bhd. [2014] 1 CLJ 821 FC
• American Cyanamid v Ethicon [1975] A.C. 396
• Hubbard v Pitt [1976] QB 142
• Cayne v Global etc plc [1984] 1 All ER 225
• Mohamed Zainuddin v Yap Chee Seng [1978] 1 MLJ 40
• Sunrise Sdn Bhd v First Profile (M) Sdn Bhd & Anor [1997] 1
CLJ 529
• Lim Hean Pin v Thean Seng Co Sdn Bhd [1992] 2 MLJ 10
• Schmidt Scientific Bhd v Ong Han Suan [1997] 5 MLJ 632
• Goh Joon Hai & Ors v Malaysian Association of Certified Public
Accountants [1997] 2 MLJ 314

(b) Application must be prompt

• Delay "may be calculated to throw considerable doubt upon the

reality of his alleged injury": Lord Chelmsford L.C. in Ware v Regent's
Canal Co [1858] 3 De G & J 212; 44 ER 1250.
o Evercrisp Snack Products v Sweeties Food Industries [1980] 2
MLJ 297
o Haji Wan Habib v Datuk Patinggi Haji Abdul Taib Mahmud
[1986] 2 MLJ 198
Civil Procedure 151

(c) Form of order - Form 53; Duration - 29 r. 2(2B) ROC – twenty-one (21)
days
• RIH Services (M) Sdn Bhd v Tanjung Tuan Hotel Sdn Bhd [2002] 3
MLJ 1

(d) Service - see O. 29 r. 1(2BA) ROC- within one week of the date of the
order granting the interim injunction. Inter partes hearing must be fixed
by the Court within fourteen (14) days from the date of the order
• O. 29 r. 1(2BA) ROC

(e) Undertaking as to damages - the trial Judge's discretion whether to order

an inquiry as to damages
• GS Gill Sdn. Bhd. v Descente Ltd [2010] 5 CLJ 613
• Ramachandram Appalanaidu v Gasing Meridian Sdn Bhd. [2018] 8
CLJ 48
• Tony Phua Kiam Wee v Dato’ Sri Mohd Najib Tun Hj Abdul Razak
[2020] 1 CLJ 260

(f) Failure to comply

(g) Grounds for discharge

(h) Defamation actions

• Woodward v Hutchins [1977] 2 All E.R. 751

(i) Preservation of property -

• Niino & Co Ltd v Kow Lup Kai [1992] 1 MLJ 463

(j) Ex-parte application not possible if the effect is to stop the holding or
progress of a meeting of a body corporate, a society, an association a
union, an organisation, a club or a body of persons
Civil Procedure 152

• 0.29 r. 2(2c) ROC.

(k) Dissolution of an interlocutory injunction - main action not affected by res

judicata or issue estoppel
• Cheng Hang Guan & Ors v Perumahan Farlim (Penang) Sdn Bhd &
Ors [1993] 3 MLJ 352.

(l) Suppression of material facts: discretion of the court -

• Noor Jahan v Md Yusoff [1994] 1 MLJ 156
• O. 29 r. 1(2A) ROC
• Motor Sports International Ltd v Delcont (M) Sdn Bhd [1996] 2 MLJ
605
• Kepong Industrial Park Sdn Bhd & Ors v Teoh Seng Aun & Ors
[1999] 5 MLJ 688
• Kosma Palm Oil Mill Sdn Bhd & Ors v Koperasi Serbausaha Makmur
Bhd (2004) 1 MLJ 316

4. Erinford Injunction
• Subashini Rajasingan v Saravanan Thangathoray [2008] 2 CLJ 1

5. Injunction against Government

• Sabil Mulia (M) Sdn Bhd v Pengarah Hospital Tengku Ampuan Rahimah &
Ors [2005] 2 CLJ 122.

XVI: THE MAREVA INJUNCTION

1. Nature, origin and development

• Nippon Yusen Kaisha v Karageorgis [1975] 1 WLR 1093

• Third Chandris Shipping Corporation & Ors v Unimarine S.A. [1979] 2 All
E.R. 972.
Civil Procedure 153

• Abdoolcader F.J. in S & F International Limited v Trans-Con Engineering

Sdn Bhd [1985] 1 MLJ 62:
"The order known as a Mareva injunction - so named after the case of
Mareva Compania Naviera SA v International Bulkcarriers SA decided in
June, 1975 and the second case in which the English Court of Appeal
granted this form of relief - is a species of interlocutory injunction which
restraints a defendant by himself or by his agents or servants or
otherwise from removing from the jurisdiction or disposing of or dealing
with those of his assets that will or may be necessary to meet a plaintiff's
pending claim."

2. Jurisdiction to grant a Mareva injunction in Malaysia

• In Zainal Abidin v Century Hotel Sdn Bhd [1982] 1 M.L.J. 260 the Federal
Court held that paragraph 6 of the Schedule to the Courts of Judicature
Act gave the High Court jurisdiction to grant a Mareva injunction.

3. Procedure for application

(a) Ex-parte summons

(b) Requirements: Wong Ho Enterprise Sdn Bhd Ors v Tiong Hoo Teck [2008]
3 CLJ 418

(i) "good arguable case"

• Rasu Maritima S.A. v Perusahaan etc Negara [1978] 1 Q.B. 644

(ii) In the Third Chandris case, Lord Denning M.R. set out certain
guidelines which have to be satisfied before the injunction will be
granted. First, he laid emphasis upon a full and frank disclosure by
the plaintiff of all matters within his knowledge which are material
for the judge to know. Secondly, he said that the plaintiff must set
out the grounds of his claim with particularity and the amount
thereof, and fairly state the points made against it by the defendant.
Thirdly, the plaintiff should give some grounds for believing that the
Civil Procedure 154

defendant has assets within the jurisdiction, and fourthly, some

grounds for believing that there is a risk of those assets being
removed from the jurisdiction before the judgment or award is
satisfied.

(iii) Duty to make full and frank disclosure

• Creative Furnishing Sdn Bhd v Wong Koi [1989] 2 MLJ 153.

(iv) See also:

• Bank Bumiputra v Lorrain Osman & Ors [1985] 2 MLJ 236
• S & F International Limited v Trans-Con Engineering Sdn Bhd
[1985] 1 MLJ 62
• Ace King Pte v Circus Americano Ltd [1985] 2 MLJ 75
• Creative Furnishing Sdn Bhd v Wong Koi [1989] 2 MLJ 153
• Ang Chee Huat v Engelbach T. Joseph [1995] 2 MLJ 83

(v) Discovery in aid: Court has a discretionary power.

• See cases in the Supreme Court Practice.

4. There must be a real risk that the Defendants will or may remove their assets
from the jurisdiction or dispose of them within the jurisdiction so as to render
them unavailable or untraceable.
• Pacific Centre Sdn Bhd v United Engineers (Malaysia) Bhd [1984] 2 MLJ
143
• Regent Decorators (M) Sdn Bhd v Michael Chee [1984] 2 MLJ 78
• Bank Bumiputra v Lorrain Osman, supra
• S.F. International Ltd v Trans-Con Engineering, supra
• Ace King Ltd v Circus Americano, supra
Civil Procedure 155

5. Order must make provisions for living expenses and payment of ordinary debts.

6. The Mareva injunction is available against a local defendant

• Barclay Johnson v Yuill [1980] 3 All E.R. 190

7. Plaintiff obtains no priority

• The Cretan Harmony [1978] 1 Lloyd's Rep. 425
• Iraqi Ministry v Arcepey [1980] 1 All E.R. 480
• Ace King v Circus Americano Ltd, supra

8. Protection of rights of third parties

• Galaxia Maritime v Mineralimportexport [1982] 1 All E.R. 796
• Oceanica Castelana v Mineralimportexport [1983] 2 All E.R. 65
• Bank Bumiputra Bhd v Lorrain Osman & Ors [1985] 2 MLJ 236
• Ace King v Circus Americano Ltd, supra.

9. Foreign Assets
• Derby v Weldon (No. 2) [1989] 1 All ER 1002
• Republic of Haiti v Duvalier [1989] 1 All ER 456
• Roseel NV v Oriental Commercial & Shipping Ltd [1990] 3 All E.R. 545
(CA) (unusual measure; should rarely be granted).

10. Worldwide injunction

• Credit Suisse Fides Trust SA v Coughi [1997] 3 All E.R. 724
• Derby v Weldon (No. 1) [1990] Ch 13 (CA)

11. Dissolution of a Mareva injunction

• Motor Sports International Ltd & Ors v Delcont (M) Sdn Bhd (1996) 3 CLJ
483
• Factors.
• Suppression of material facts.
Civil Procedure 156

XVII: THE "ANTON PILLER" INJUNCTION

1. Nature of the "Anton Piller" Injunction

• Anton Piller K.G. v Manufacturing Processes Ltd [1976] 1 All ER 779

• Lian Keow Sdn Bhd v C. Paramjothy & Anor [1982] 1 MLJ 217.
• Yusof Abdul Rashid J in the Lian Keow Sdn Bhd case:
"Thus, in most exceptional circumstances, the court has jurisdiction to
order a defendant to permit the plaintiffs' representatives to enter the
defendant's premises to inspect and remove vital material which the
defendant might destroy or dispose of so as to defeat the ends of justice
before an inter partes application for an injunction could be made."
• Television Broadcasts Ltd v Mandarin Video Holdings Bhd [1983] 2 MLJ
346
• Penerbit Fajar Bakti Sdn Bhd v Cahaya Surya Buku & Alat Tulis [1989] 1
MLJ 386
• Computerland Corp v Yew Seng Computers [1991] 3 MLJ 201
• Columbia Pictures v Robinson [1986] 3 All ER 338

2. Jurisdiction

• Such order is allowed under s. 25(2) of the Courts of Judicature Act, which
under paragraph 6 of the Schedule, includes the power to provide for
'interim preservation of property the subject matter of any cause or matter
... by injunction or in any manner whatsoever'. This section read together
with Order 29 of the Rules of High Court and section 50 of the Specific
Relief Act is wide enough for the issuance of such injunction
o Aspatra Sdn Bhd & 21 Others v Bank Bumiputra Malaysia Bhd &
Anor. [1988] 1 MLJ 97.

3. Procedure for application

• The application is made ex-parte, by way of summons before a judge in

chambers. The applicant in his affidavit must set out the relevant facts
Civil Procedure 157

showing that an order is necessary. He must set out the relevant

documents or propertyshowing strong evidence that serious harm or
serious injustice will be suffered if the order is not made. The applicant
must also state the address of the relevant premises the incriminating
evidence will be found. The applicant must also give an undertaking as to
damages. Normally the order will state "that the entry is to be effected by
the applicant's solicitor, with such assistance as may be necessary.

4. Conditions for making of the Order

Ormrod LJ in the Anton Piller case, "The proposed order is at the extremity of
this court's powers. Such orders, therefore, will rarely be made, and only
when there is no alternative way of ensuring that justice is done to the
applicant.
There are three essential pre-conditions for the making of such an order
in my judgment. First, there must be an extremely strong prima facie
case. Secondly, the damage, potential or actual, must be very serious for
the applicant. Thirdly, there must be clear evidence that the defendants
have in their possession incriminating documents or things, and that there
is a real possibility that they may destroy such material before any
application inter partes can be made."

5. The court has a discretion to grant an Anton Piller order to enable the
preservation of a document which did not itself form the subject matter of the
action, where the document was the best possible evidence (per Lord Denning)
or essential evidence to put forward his claim (Donaldson LJ).

• Yousif v Salama [1980] 3 All ER 405

• Lian Keow Sdn Bhd v C. Paranjothy [1982] 1 MLJ 217

6. Enforcing an Anton Piller order

• the Anton Piller case at p 167 (Ormrod LJ) and the Lian Keow Sdn Bhd
Civil Procedure 158

case at p 218-219 (Yusof Abdul Rashid J)).

• Arjunan & Ors v Kesatuan etc Ladang & Ors [1993] 1 MLJ 326.

Entry need not be immediate; permissible after a reasonable time for D to

obtain legal advice
• Bhimji v Chatwani [1991] 1 All ER 705

7. Privilege against self-crimination

• Rank Film Distributors Ltd & Ors v Video Information Centre & Ors [1981]
2 All ER 76
• [English] Supreme Court Act 1981, s. 72
• Section 132 Evidence Act 1960
• Television Broadcasts & Ors v Mandarin Video Holdings Sdn Bhd, supra.
• P M K Rajah v Worldwide Commodities Sdn Bhd & Ors [1985] 1 MLJ 86
• Arjunan & Ors v Kesatuan etc Ladang & Ors [1993] 1 MLJ 326

8. Setting aside an Anton Piller order

• See the Supreme Court Practice.

9. After judgment
• May be made in aid of execution.

XVIII: INTERIM PAYMENT

1. See section 25A CJA

2. See O. 22A ROC

• Mediahouse Sdn Bhd v Koh Kim Suan [1998] 3 AMR 2338

• Josu Engineering Construction Sdn Bhd v TSR Bina Sdn Bhd [2016] 1
CLJ 1
Civil Procedure 159

XIX: AFFIDAVITS

1. Form of Affidavit (O. 41 r. 1 ROC)

• Tan Sim See & Anor v See Chee Ping (1976) 1 MLJ 186
• Kulanthayan Chettiar v Koh Liok Phuang (1951) 17 MLJ 149
• Lee Meow Lim v Leew Meow Nyin (1990) 3 MLJ 123
• Thomas v Attorney General of Sarawak [1961] MLJ 111
• Mohd Nazir bin Badar Shair v Timbalan Menteri Dalam Negeri [2000] 2
MLJ 559

2. Affidavit by two or more deponents (O. 41 r. 2 ROC)

3. Affidavit by illiterate or blind person (O. 41 r. 3 ROC)

• Mohan a/l Paramsivam v Sepang Omnibus Co Sdn Bhd (1989) 1 MLJ
247
• Chan Kiew v Lai Sang & Anor [2002] 5 CLJ 69
• Ravi a/l Suppiah v Timbalan Menteri Hal Ehwal Dalam Negeri & Anor
[1995] 1 AMR 513
• Fulcrum Capital Sdn Bhd v Low Kon Yang [2003] 4 MLJ 509

4. Use of Defective Affidavit (O. 41 r. 4 ROC)

• Mohan Paramsivam v Sepang Omnibus Co Sdn Bhd (1989) 1 MLJ 247
• Dynacast(s) Pte Ltd v Lim Meng Siong & Ors (1989) 3 MLJ 456
• Syarikat Ying Mui Sdn Bhd v Muthusamy a/l Sellapan & other appeals
[1999] 6 MLJ 622
• Lee Chin Ho & Anor v Syed Hussein bin Salim Al-Attas & Anor [2000] 4
MLJ 46

5. Contents of Affidavit
• Mui Bank Bhd v Alkner Investments Pte Ltd (1990) 3 MLJ 385
• Perumahan Farlim (Pg) Sdn Bhd & Ors v Cheng Hong Guan & Ors
Civil Procedure 160

(1989) 3 MLJ 223

• Re JL Young Manufacturing Company Ltd (1900) 2 Ch 753
• Dynacast(s) Pte Ltd v Lim Meng Siang & Ors (1989) 3 MLJ 456
• Abd Hamid bin Jaafar (Trading as sole proprietor as Bintang Enterprise)
v Shamsiah dan Keluarga Sdn Bhd [2004] 5 MLJ 349
• Ahmed Ibrahim Bilal v Ketua Polis Negara [2011] 1 CLJ 85 - hearsay
statement

6. Scandalous etc Matters in Affidavits (O. 41 r. 6 ROC)

• Rossage v Rossage (1960) 1 WLR 249
• Mui Bank v Alkner Investment (Pte) Ltd (1990) 3 MLJ 385
• In Re Ong Eng Guan (1959) MLJ 92

7. Alterations in Affidavits (O. 41 r. 7 ROC)

8. Document to be used in conjunction with affidavit to be exhibited to

it (O. 41 r. 11 ROC)
• Re Hinchcliffe (1895) 1 Ch 117
• Palaniappa Chettiar v Tan Jan & Anor (1965) MLJ 182
• Re Delta Drive (M) Sdn Bhd; Hong Leong Finance v Delta Drive (M) Sdn
Bhd (No. 2) [2000] 4 MLJ 27

Right to peruse exhibits:

• Gulwant Singh v Amar Singh [1968] 1 MLJ
• Palaniappa Chettiar v Tan Jan & Anor [1965] MLJ 182

9. Filing of Affidavits
• Sharma Kumari d/o Oam Parkash v P.P. (No. 2) [2000] 6 MLJ 790
• Taylor v Gates [1895] 72 LT 436
• Kewangan Bersatu Bhd (previously known as Kewangan Usaha Bersatu
Bhd) v Metropolitan Property Sdn Bhd [1996] 1 MLJ 79
Civil Procedure 161

10. Affidavit dated earlier than originating summons (O. 41 r. 9 ROC)

• Lee Thye (as President and office bearer of the Selangor Yan Keng
Benevolent Dramatic Association v Tan Sri Ngan Ching Wen (as
President and office bearer of the Selangor Chinese Assembly Hall)
[1999] 6 MLJ 390
• Arab Malaysian Finance Bhd v Serajudin Bin Mohd Ismail & Anor [1998]
7 MLJ 536
• Multi-Purpose Bank Bhd v Diamond Agreement Sdn Bhd [2000] 5 MLJ
576
• Malaysia Building Society Bhd v Univein Sdn Bhd [2002] 7 MLJ 501

11. Affidavit taken outside Malaysia (O. 41 r. 12 and r. 13 ROC)

• Brooke v Brooke [1881] 17 Ch 833
• Re Davies, Davies v Atkinson [1909] WN 212
• Notaries Public Act 1959 (Act 115)

12. Language of Affidavit affirmed outside the jurisdiction (O.41 r. 13

ROC)

XX: PRE-TRIAL CASE MANAGEMENT AND DISMISSAL FOR WANT OF

PROSECUTION

1. Pre-trial case management (O. 34 ROC)

(a) The power of the Court to direct pre-trial case management (O. 34 r. 1
and r. 2 ROC)

(b) Power of the Judge (O. 34 r. 2(2) ROC)

(c) Notification of pre-trial case management in Form 59 (O. 34 r. 3 ROC)

(d) Failure to attend (O. 34 r. 6 ROC)

Civil Procedure 162

(e) Failure to comply – O .34 r. 1(3) and r. 2(3) ROC

• Biquzzi v Rank Leisure plc [1999] 4 All ER 935
• Zainal Effendi Mohd Daud v Suruhanjaya Perkhidmatan Awam [2004]
1 CLJ 642

For other cases concerning Order 34, see:

• Thiruchelvasegaran M v Mahadevi N [2001] 3 CLJ 762
• Kewangan Bersatu Bhd v Victory Ceramic's Industries Sdn Bhd & Ors
[2002] 5 MLJ 225
• Hup Hin Soon Sdn Bhd v Chong Kin Lin [2002] 5 MLJ 359
• Ngoi Thiam Who v Maxwell, Kenion, Cowdy and Jones [2002] 3 MLJ
341
• Yeo Ing King v Melawangi Sdn. Bhd. [2016] 5 MLJ 631

(f) At pre-trial case management:

(i) admission and agreements (O. 34 r. 7 ROC)
(ii) duty to give all information (O. 34 r. 8 ROC)
(iii) duty to make all interlocutory applications (O. 34 r .9 ROC)

(g) Automatic directions in personal injury action (O. 34 r. 10 ROC)

(h) Non-disclosure for facts disclosed or matters considered at the pre-trial

case management to the Court conducting the trial (O. 34 r. 11 ROC)

(i) Abatement of action (O. 34 r. 12 ROC)

2. Dismissal for want of prosecution

(a) Under the ROC e.g. see O. 19 r. 1, O. 34 r .1(3) and r. 2(3) ROC.
• Syed Mahdzir bin Syed Abdullah v Ketua Polis Negara [1986] 1 MLJ
196 Confidence Concrete Sdn Bhd v Shimizu-Peremba Sdn Bhd
[1994] 1 MLJ 465 (application under 0.34 r. 2)
Civil Procedure 163

• Negara Properties Sdn Bhd v Akitek Bersekutu Malaysia [1995] 2 MLJ

185 (application under 0.34 r. 2)
• Trustees of Leong San Tong Kongsi (Penang) Registered & Anor v
Lee Boon Tin [1998] 4 MLJ 373
• Hongkong Bank Malaysia Bhd v Tan Tock Sing & Ors [1998] 6 MLJ
89
• TM Feroze Khan & Ors v Meera Hussain Bin TM Mohamed Mydin
[2000] 1 MLJ 321
• Syed Omar Syed Mohamad v Perbadanan Nasional Bhd [2012] 9 CLJ
557

(b) Under the inherent jurisdiction of the Court.

• Birkett v James [1977] 2 All E.R. 801 (H.L.)
• Toh Hock Thye & Ors v Toh Chwee Biow [1982] 1 M.L.J. 152 per
Salleh Abas F.J. (as he was then):
"[W]e propose for the purpose of this appeal to state the principle
which would guide us in deciding this appeal to be thus - that the
plaintiff's action is liable to be dismissed for want of prosecution
when the court is satisfied that (1) the plaintiff's default has been
intentional and contumelious or (2) the plaintiff or his lawyer is
guilty of such inordinate and inexcusable delay that the defendant
has been prejudiced by it."

• See

(i) Contumelious conduct e.g. disobedience of a peremptory order

or abuse of process of the court
• Wallersteiner v Moir [1974] 3 All E.R. 217

Bar to fresh action.

Civil Procedure 164

(ii) Position where limitation period has not expired [see Bailey v
Bailey [1983] 3 All E.R. 495 (C.A.)].

• intentional or contumelious conduct - limitation

irrelevant - new action abuse of process.
• non-contumelious - as P could bring a new action is it
proper to dismiss?
o Bailey supra, and Lord Diplock in Birkett, supra, p.
808) "a conclusive reason for not dismissing."
o Wong Sin Meng v Wong Sam Moi & Anor [1991] 2
MLJ 277
o Te Cheng Hoi v Peh Im Kweng [1994] 2 MLJ 547
• See the Federal Court’s decision in Syed Omar Syed
Mohamed v Perbadanan Nasional Bhd [2012] 9 CLJ 557
on the applicability of the principle in Birkett v. James in
relation to O. 34 ROC

XXI: DISCOVERY
ORDER 24 ROC

1. Meaning and history

2. Function

(a) to provide parties with relevant documentary material before trial to

enable them to appraise the strength or weakness of their respective
cases;

(b) to provide the basis for the fair disposal of the proceedings before or at
the trial;

(c) to enable parties to use before trial or adduce in evidence at the trial
relevant documentary material to support or rebut the case made by or
against them;
Civil Procedure 165

(d) to eliminate surprise at or before trial, relating to documentary evidence;

and

(e) to reduce the costs of litigation.

3. No discovery against a stranger

(a) See exception in Norwich Pharmacal Co v Commissioners of Customs &

Excise [1974] A.C 133.
"[A] stranger who though not personally liable but who through no fault
of his own (and whether voluntarily or not) has got mixed up in the
tortious acts of others so as to facilitate their wrong doing ... comes under
a duty to assist the person who has been wronged by giving him full
information and disclosing the identity of the wrongdoer.": per Lord Reid

o Loose v Williamson [1978] 1 W.L.R. 639

o B.S.C v Granada Television [1981] AC 1096
o Ricci v Chow [1987] 3 All ER 534
o First Malaysia Finance Bhd v Dato' Mohd Fathi [1993] 2 MLJ 497
(cause of action pleaded was in contract and not in tort)

(b) Bankers Trust Order

o Bankers Trust Co v Shapira & Co [1980] 1 WLR 1274
o Arab Monetary Fund v Hashim & Others (No. 5) [1992] 2 All ER 910

4. The process of discovery generally operates in three stages:

(a) disclosure

(b) inspection and taking of copies

(c) production

5. Discovery (O. 24 ROC)

Civil Procedure 166

The Court may make an order of discovery (O. 24 r. 3 ROC) and the documents
may be ordered to discover are:

(a) the documents on which the party relies or will rely; and

(b) the documents which could -

(i) adversely affect his own case;
(ii) adversely affect another party’s case; or
(iii) support another party’s case.

(O. 24 r. 3(4) ROC)

(c) See Form 38 - Schedule 1 Part 1 lists the documents in the party's
possession and which he does not object to produce. Schedule 1 Part 2
lists the documents in his possession which he objects to produce.
Schedule 2 lists the documents which have been but now are not in his
possession.

(d) See O. 24 r. 5(4) ROC - documents to be bound and paginated.

See O. 24 r. 5(5) ROC - effect of non-compliance.

(e) See Form 40 which must be served with Form 38. Form 40 states time
and place for inspection (O. 24 r. 9 ROC).

(f) Party to apply to court to compel discovery of particular documents (O. 24

r. 7(2) ROC).

(g) O. 24 r. 3 and r. 7 ROC are subject to r. 8; r. 8 gives the Court the

discretion to order discovery only if necessary.

6. Inspection of documents referred to in pleadings and affidavits (O. 24

r. 10 ROC)

(a) Note "at any time"

Civil Procedure 167

(b) Notice in Form 41

"The party to whom the notice is given must produce the documents
unless he can show good cause as to why inspection ought not to be
allowed. The onus is thus on him to justify his refusal."
• Ong Boon Hua & Anor v Menteri Hal Ehwal Dalam Negeri, Malaysia &
Ors [2008] 5 CLJ 42

7. What documents are subject to discovery?

• See O. 24 r. 3(1), r. 3(4) and r. 12 ROC:

• "which are or have been in his possession, custody or power"

o Lonrho Ltd v Shell [1980] 1 W.L.R. 627 (H.L.)

• "relating to any matter in question between them in the action"

o Compagnie Financiere v Peruvian Guano Co (1882) 11 Q.B.D. 55 and
other cases cited in the White Book in para 24/2/5

8. Discovery against other person (O. 24 r. 7A ROC)

(a) Before commencement of proceedings: by way of originating summons

and the person to be made defendant (O. 24 r. 7A (1) ROC)

(b) After commencement of proceedings: by way of notice of application;

served on that person and on every party to the proceedings (O. 24 r. 7A
(2) ROC)

(c) Contents of affidavit in support (O. 24 r. 7A (3) ROC)

(d) Court’s discretion (O. 24 r. 7A (5) ROC)

(e) Order of Court (O. 24 r. 7A (6) to 7A(9) ROC)

Civil Procedure 168

9. Failure to make discovery (O. 24 r. 16 ROC)

• Note the wide powers of the court, including the power to dismiss P's
action and strike out D's defence.
o Ong Boon Hua & Anor v Menteri Hal Ehwal Dalam Negeri, Malaysia &
Ors [2008] 5 CLJ 42

10. Privilege

(a) Certain classes of documents, though they must be disclosed as relating to

matters in question in the action, are, however, privileged from
production.

(b) See the following generally:

o Sections 121- 132 Evidence Act 1950:

o Section 121 - Judges, Presidents etc
o Section 122 - Husband and Wife
o Section 123 - Affairs of State
o Section 124 - Confidential communications - public interest
o Section 125 - Information as to commission of offences
o Section 126 - Legal Professional Communications
o Section 127 - Applicatiaon of S. 126 to clerks etc
o Section 128 - Privilege not waived by volunteering evidence
o Section 129 - Confidential communications with legal advisers
o Section 130 - Productions of title deed etc of witness not a party
o Section 131 - Production of document which another person could
refuse
o Section 132 - Self-incrimination

(c) See also section 36 Government Proceedings Act 1956 with reference to
"affairs of state" and "public interests".
Civil Procedure 169

o B.A. Rao v Sapuran Kaur [1978] 2 MLJ 146

o Govt of Selangor v Central Lorry Service etc Bhd [1972] 1 MLJ 102
o Wix Corp. etc Bhd v Minister of Labour and Manpower [1980] 1 MLJ
224
o Yeo Ah Tee v Lee Chuan Meow [1962] MLJ 413
o Alfred Crompton etc Ltd v Comm of Customs & Excise (No. 2) [1974]
A.C. 405
o Waugh v BRB [1980] A.C. 521
o Sykt Chin Seng Supermarket v United Continental Insurance Sdn Bhd
[1997] 5 MLJ 121
o Suruhanjaya Sekuriti v Datuk Ishak Ismail [2016] 3 CLJ 19, FC

11. Collateral use of information obtained

• Bourns Inc v Raychem Corp and Anor [1999] 3 All ER154
XXII: INTERROGATORIES
ORDER 26 ROC

1. Meaning:

(a) 'Interrogatories' are questions answerable on oath which a party may,

with the leave of the court, serve on his opponent. In the first instance the
answers are given by affidavit but if the party interrogated omits to
answer some of the questions or gives insufficient answers the court may
order a further answer to be given either by affidavit or by oral
examination. Although the interrogatories proposed must be relevant to
the action the definition of 'relevance' is very wide. The questions may
relate to any matter which go to support the interrogator's case or to
impeach or destroy his opponent's case. Thus, answering interrogatories is
just another form of discovery and is sometimes called 'discovery of facts.'
• Mahon v Osborne [1939] 2 KB 14.

(b) The object of interrogatories is to allow party who interrogates to attempt

to obtain admission from his opponent. This will make the burden of proof
Civil Procedure 170

easier.

(c) Interrogatories are not now commonly used. One of the main purposes
they orginally served, eliciting admissions, is nowadays normally supplied
by a notice to admit facts. Regarding notice to admit facts, see O. 26 ROC.

2. Power of Court to order

• O. 26 r. 1(1) ROC

3. Application
• Normally after close of pleadings and after discovery.
• Exceptional before delivery of defence.
o O. 26 r. 1 and Forms 44-47 ROC.
o Sheikh Abdullah bin Sheikh Mohamed v Kang Kock Seng [1975] 1
MLJ 89 (FC)
o Pertubuhan Berita Nasional Malaysia v Stephen Kalong Ningkan
[1980] 2 MLJ 19 (FC)

4. The questions
(a) Should be short and clear - long and involved questions disallowed.
(b) If more than one party, then must state who is to answer which question.
• O. 26 r. 4 ROC

(c) Affidavit in support

(d) Questions must be relevant to the issues on the pleadings.

5. Discretion of the Court

(a) Two broad factors: Relevance and necessity.

(i) Relevance
• Must relate to a matter in issue between the parties.
o Sheikh Abdullah bin Sheikh Mohamed v Kang Kock Seng
Civil Procedure 171

[1975] 1 MLJ 89 (FC)

o Norman Wright & Anor v Oversea Chinese Banking Corp
Ltd & Anor [1992] 2 SLR 710 (CA)

• Can extend to prove applicant's own case and attack

opponent's case.
o Hennessy v Wright (1890) 24 Q.B.D. 445, 447

• Can be used to seek admissions.

o Sheikh Abdullah v Kang Kock Seng [1975] 1 MLJ 89 (FC)

• Questions relating solely to credit will not be allowed by

interrogatories.

• "Fishing" not permitted; looking for a case rather than trying to

establish one.

(ii) Necessity
• For disposing fairly of the suit r. 1(3) ROC.

• If can be subject of a notice to admit facts, no interrogatory.

• Where party offers to provide the information sought, no
interrogatory.

• If witness must be called in any event at the trial to prove a

fact, no interrogatory to obtain admission of that fact. Ramsey
v Ramsey [1956] 2 All E.R. 165.

• Variable from case to case. The following points to be

considered:
✓ Is the question relevant?
✓ Would it help the applicant or has he to call a witness to
Civil Procedure 172

establish the fact?

✓ Has the question been framed clearly and precisely that
the opponent can be expected to give a straight answer?
✓ Is it reasonable to deal with the point in this way, there
having been discovery of documents and witnesses may
be needed at the trial or could it be more convenient to
ask for particulars or serve a notice to admit facts?
• Maass v Gas Light and Coke Co. [1911] 2 K.B. 543
6. Against corporations

(a) May specify the officer who is to answer - usual form "proper officer."

(b) Prima facie the Secretary.

7. Objections
(a) Not relevant
(b) Not necessary
(c) "Fishing"
(d) Evidence, not facts
(e) Opinion, not facts
(f) Oppressive: too many, vague, scandalous
(g) Privilege
(h) Premature
• Pertubohan Berita Nasional v Stephen Kalong Ningkan [1980] 2
MLJ 19.

8. Answers
(a) By Affidavit in Form 47.
(b) Must not be evasive.
(c) Answer to the best of knowledge, information and belief.
(d) Where necessary, enquiries must be made of agents and servants.
(e) Companies - inquiries be made of past officers and servants and state it
in the answer
• Stansfield Properties v National Westminster Bank [1983] 2 All
Civil Procedure 173

E.R. 249.
(f) Prolix, argumentative, embarrassing or evasive answer will be
expunged.
(g) Inconsistent answer
• Philip Hoalim v Amalgamated Theatres [1936] MLJ 11.

9. Further answer (O. 26 r. 6 ROC)

(a) Application should make clear precisely why it is alleged that the
answer is unsatisfactory.
(b) Court is not concerned with the truth of the original answer but with its
sufficiency.
(c) Oral examination ordered only in special circumstances.

10. Consequences of failure to comply (O. 26 r. 7 ROC) action to be dismissed,

defence be struck out, judgment be entered accordingly. Committal for
contempt.

11. Use of interrogatories at the trial

(a) O. 26 r. 8.
(a) Party adducing them can lead evidence to contradict them. Also, may
put in some answers and leave out others.
(b) Court may look at the whole of the answers or any answer or other part
of the answer.
• Endeavour Wines Ltd v Martin and Martin [1948] WN 338

XXIII: THIRD PARTY PROCEEDINGS

1. When

(a) Claims to contribution O. 16 r. 1(1)(a) ROC

(i) one of several trustees sued in breach of trust
(ii) joint tortfeasors
Civil Procedure 174

(iii) insurer who has issued a policy covering the same assured and the
same peril as another insurer.

(b) Indemnity O. 16 r. 1(1)(a) ROC

(i) surety and principal debtor

(ii) insured and insurer
• Sze Hai Tong Bank Ltd. v Rambler Cycle Co. Ltd. [1959] M.L.J.
PC 200

(iii) "Claims against such a person any relief or remedy relating to or

connected with the original subject-matter of the action and
substantially the same as some relief or remedy claimed by the
plaintiff.”: O. 16 r. 1(1)(b) ROC

P is injured by a falling roof in D's house. The roof was repaired

the previous day by T, a contractor. P is now suing D.

(iv) "Requires that any question or issue relating to or connected with

the original subject-matter of the action should be determined not
only as between the plaintiff and the defendant but also as between
either or both of them and a person not already a party to the
action.": O. 16 r. 1(1)(c) ROC

A's car was stolen by B. B sold the car to C. C sold the same car to
D. The car is in D's possession. A is now suing D for its return.
2. Third Party Notice

(a) D must first enter appearance

• O. 16 r. 1(1) ROC

(b) Issue a third-party notice and serve it on TP. TP must enter

appearance.
Civil Procedure 175

(c) Leave is required to issue third party notice in certain circumstances.

(i) D has served his defence
• O. 16 r. 1(2) ROC
(ii) third party notice is sought to serve on the Government
• 73 r. 8 ROC)

3. Leave to issue third party notice (O. 16 r. 2 ROC)

(a) By ex-parte notice of application in Form 20
(b) Affidavit must satisfy O. 16 r. 2(2)
(c) Power to grant leave discretionary

4. Summons for third party directions (O. 16 r. 4 ROC)

(a) D must apply for directions within seven (7) days after TP has entered
appearance. The notice of application must be served on TP, P and
co-defendants, if any.

(b) Setting aside Third-Party Notice: The third party may, if no application for
directions has been served on him more than seven (7) days after
entering appearance, apply to set aside the third-party notice. He does so
by notice of application in Form 22 to be served on all parties in the
action.

(c) Dismissing D's notice of application for Third Party Directions: The notice
of application may be dismissed if the action does not fall within O.16 r.
1(1)(a) - (c) ROC or if the plaintiff or the third party can show special
circumstances why the directions should not be given.

(d) Directions to be given: The Court has wide power in deciding what
directions to give. They include the power to –
Civil Procedure 176

i. order judgment to the defendant against the third party if the liability
of the third party to the defendant who issued the third-party notice
is established at the hearing (O. 16 r. 4(3)(a) ROC);
ii. order any claim question or issue to be tried as the Court may direct
(O. 16 r. 4(3)(b) ROC);
iii. give the third party leave to defend alone or jointly with any
defendant and appear at the trial (O. 16 r. 4(4) ROC);
iv. determine the extent to which the third party is to be bound by any
judgment; or
v. dismiss the application for directions (O. 16 r. 4(3)(c) ROC).

• Dismissal of the application for directions has the result of

terminating the third-party proceedings.

• Effect of directions

o Pacific etc Sdn Bhd v Senanti Motors Sdn Bhd [1992] 2

MLJ 364
o Punca Klasik Sdn Bhd v Liza James & Ors (1996) 3 CLJ
932.

5. P and TP

• If the plaintiff wishes to obtain judgment against the third party, he

must apply under O. 15 r. 6 to add the latter as defendant and if the
third party wishes to counterclaim against the plaintiff he must himself
apply to be so added.

6. TP does not enter appearance or having been ordered to serve a

defence, fails to do so (O. 16 r. 5(1)(a) ROC)

• TP deemed to admit claim and should be bound by any judgment in the

action, including a consent judgment.

7. Limitation against third party

• Mat Abu b Man v Govt. of Malaysia [1989] 1 MLJ 226: Time does not
Civil Procedure 177

begin to run until D is made liable to P. A third party claim is a separate

action.

XXIV: OFFER TO SETTLE

1. Meaning

(a) An offer to settle is deemed to be an offer of compromise made without

prejudice save as to costs
• O. 22B r. 4 ROC

(b) The offer to settle is also applicable to counterclaims and third-party

claims
• O. 22B r. 12 ROC

2. Timing

(a) An offer to settle may be made at any time before the Court disposes
of the matter
• O. 22B r. 2 ROC

(b) Time for acceptance and withdrawal

• O. 22B r. 3 ROC

(i) When time is fixed, the offer shall be deemed to have been
withdrawn when the time expires
• O. 22B r. 3(1) ROC

(ii) When time is not fixed, the offer may be accepted at any time
before the Court disposes of the matter
• O. 22B r. 3(2) ROC
Civil Procedure 178

3. Acceptance and withdrawal

(a) The offer may be withdrawn in Form 35

• O. 22B r. 3(3) ROC

(b) The offer may be accepted by serving an acceptance of offer in Form

36 on the party who made the offer
• O. 22B r. 6(1) ROC

(c) Where an offer is accepted, the Court may incorporate any of its terms
into a judgment
• O. 22B r. 6(2) ROC

4. Non-disclosure

• An offer to settle shall not be disclosed to the Court until it is accepted

or until all questions of liability and the relief to be granted, other than
costs, have been determined if it is not accepted.
o O. 22B r. 5 and O. 22B r. 6 ROC.

5. Compliance

(a) When a party to an accepted offer to settle fails to comply with any of
the terms of the accepted offer, the other party may -

(i) apply for judgment in terms of the accepted offer; or

(ii) continue the proceeding as if there had been no accepted offer

to settle.

(b) O. 22B r. 8 ROC

6. Costs

(a) Where an accepted offer to settle does not provide for costs, each
Civil Procedure 179

party shall bear his own costs

• O. 22B r. 9(1) ROC
(b) Where an offer to settle made by a defendant –

(i) is not withdrawn and has not expired before the disposal of the
claim; and

(ii) is not accepted by the plaintiff, and the plaintiff obtains judgment
not more favourable than the terms of the offer to settle,

the plaintiff is entitled to costs to the date of the offer was served and
the defendant is entitled to costs from that date
• O. 22B r. 9(2) ROC

(c) See also O. 22B r. 9(3) & (4) ROC for the relevancy of interest awarded
in determining whether the plaintiff’s judgment is more favourable than
the terms of the offer to settle.

7. Offer to contribute

(a) Where two or more defendants are alleged to be jointly or jointly and
severally liable to the plaintiff in respect of a claim, any defendant may
make to any other defendant an offer to contribute in Form 37 towards
a settlement of the claim
• O. 22B r. 11(1) ROC

(b) The Court may take into account an offer to contribute in determining
whether another defendant should be ordered –

(i) to pay the costs of the defendant who made the offer; or
(ii) to indemnify the defendant who made the offer for any costs
he is liable to pay to the plaintiff,
Civil Procedure 180

or to do both.
• O. 22B r. 11(2) ROC

(c) Others

• O. 22B r. 7 ROC in relation to offer and acceptance by a party

under disability and O. 22B r. 10 ROC for specific provision where
the defendants are alleged to be jointly or jointly and severally
liable to the plaintiff.

XXV: TRIAL

A. HIGH COURT

1. Mode (O. 33 ROC)

Three modes - r. 1 ROC

2. Preliminary points (O. 33 r. 1, 2 and 5 ROC)

(a) Court may order any question or issue whether of fact or law or partly
of fact and partly of law to be tried at anytime of the proceeding.
• Chan Kum Loong v Hii Sui Eng [1980] 1 MLJ 313
• Thye Lam v Eastern Shipping Corporation [1960] 26 MLJ 235
• Federal Insurance Co v Nakano Singapore (Pte) [1992] 1 SLR
390
• Dominic Puthucheary v Jet Age Construction Sdn Bhd & Anor
[1997] 2 MLJ 252 (CA)
• Ayer Itam Height Sdn Bhd & Ors v Chung Nyuk Sen @ Henry
Chung [2003] 2 MLJ 481
• Kwang Yik Bank Bhd v Kwan Chew Holdings Sdn Bhd [2011] 2
CLJ 269
Civil Procedure 181

(b) Preliminary objection - Prior notice in writing:

• Jasabena Sdn Bhd v Beng Heng Poo & Anor [1985] 1 MLJ 394
• Ooi Chew Seng v Ultratech Sdn Bhd & Ors [1997] 2 MLJ 344

3. Absence of parties (O. 35 r.1 ROC)

(a) Both parties absent

(b) D absent.
• Hup San Timber Trading v Tan Ah Lan [1979] 1 MLJ 238

(c) P absent

(i) D has no counterclaim

(ii) D has a counterclaim

(d) Dismissal for non-appearance not res judicata –

• New India Assurance v Karam Singh [1972] 2 MLJ 26 (F.C.)
• Asia Commercial Finance (M) Bhd v Pasadeno Properties
Development Sdn Bhd & Ors [1991] 1 MLJ 111
• Get Mal Sdn Bhd v Zulkifli Hassan & Anor [2001] 6 CLJ 376

4. Adjournment (O. 35 r. 3 ROC)

(a) Good reasons essential:

• Go Pak Hoong Tractor v Syarikat Pasir Perdana [1982] 1 MLJ 77
• Lee Ah Tee v Ong Tiow Pheng & Ors [1984] 1 MLJ 107

(b) Judge should not make an order "as would defeat the rights of a party
and destroy them altogether unless he is satisfied that [the absent
party] has been guilty of such conduct that justice can only be properly
done to the other party

(i) by coming to the conclusion": Atkin L.J. in Maxwell v Keun

[1928] 1 K.B. 645.
Civil Procedure 182

(ii) An appeal court will be slow to interfere with the judge's

discretion. Examples of interference are:
• Dick v Piller [1943] 1 K.B. 497; Hup San etc Bhd v Tan Ah
Lan [1979] 1 M.L.J.238.

(iii) Appellate court would not interfere "unless it can be

demonstrated to a conviction that the refusal resulted in the
deprivation of essential justice" to a party
• MGG Pillai v Tan Sri Dato Vincent Tan Chee Yioun [1995]
2 MLJ 493.
• Shaharuddin bin Abdul Rahman v Satisyh Ismail Sdn Bhd
[1982] 2 MLJ 79
• Lee Kong v Leong Koo [1996] 2 MLJ 229 (CA)
• Harrold Shaw v Wong Phila Mae [1990] 1 MLJ 205
• Ting Sieh Chung v Hock Peng Realty Sdn Bhd [2016] 7
CLJ 527

• Also see –
o Practice Direction (Arahan Amalan No. 2/1992)
o Practice Direction 2A of 1971
o Practice Direction 5 of 1989.

• Articles:
o Waste of Court's Time - Solicitor to pay costs
[1960] MLJ xvi
o Postponement and backlog in the courts [1970] 2
MLJ xxv
5. Course of trial

(a) Right to begin

(i) Judge has discretion

Civil Procedure 183

• r. 4(1) ROC

(ii) Normally P will begin (r. 4(2) ROC) but where the burden of
proof of all issues on D, D is entitled to begin.
• Lo Khi On etc v Tanjung Aru Hotel Sdn Bhd [1994] 3 MLJ
766
• Kulandi v Subramaniam [1983] 1 CLJ 302
• Muthurasu Pillai v Pakir Mohamed (1929) 7 FMSLR 70

(b) Order of speeches

(i) Situation where P begins and D elects to adduce evidence
(ii) Situation where P begins and D does not elect to adduce
evidence
(iii) r. 4(7) ROC
• Chong Chee Yan v Germila Sdn Bhd & Anor [2001] 5 MLJ
264

6. Calling of witnesses
• Lim Ker v Chew Seok Teo [1967] 2 MLJ 253
• Ong Yoke Eng & Anor v Lim Ah Yew [1982] 1 MLJ 226
• Article: Counsel's Right of Choice and Order of Witnesses [1960] 1
MLJ xvii

7. Witness statement (O. 34 and O. 38 ROC)

• Faridah Ariffin v Dr Lee [2002] 1 CLJ 660

8. Evidence:
(a) Witness
(i) Order 38 ROC: r. 14-23 - witness
(ii) Order 39 ROC: deposition
Civil Procedure 184

(iii) Orders 41 ROC: Affidavit

(b) Documentary Evidence

• Agreed and Disputed Bundles of Documents and Statement of
Agreed Facts
o Henry Trading Co Ltd v Harun [1966] 2 MLJ 281
o Yap Choo Hoo v Tahir b. Yasin & Anor [1970] 2 MLJ 138
o Practice Note 2 of 1977
o Borneo Housing Mortgage Finance Bhd v P.R. of the
Estate of Lee Lun Wah & Anor [1994] 1 MLJ 209
o Jaafar Shaari & Siti Jama Hashim v Tan Lip Eng & Anor
[1997] 4 CLJ 509
o Hashim v Tan Lim Eng & Anor [1977] 4 CLJ 509
o Dato' Abdullah Hishan bin Hj Mohd Hashim v Sharma
Kumari Shukala (No. 3) [2000] AMR 334
o Chong Khee Sang v Pang Ah Chee [1984] 1 MLJ 377
o Goh Yu Tian v Tan Song Gou & Ors [1981] 2 MLJ 317,
Affirmed [1983] 1 MLJ 60 (CA)
o YB Dato’ Hj Husam bin Hj Musa v Mohd Faisal bin Rohban
Ahmad [2015] 3 MLJ 364, the Court of Appeal held inter
alia as follows:
“Once the document is marked as exhibit, the court in
deliberating the fact can give low probative value, but
cannot exclude and refuse to consider it….”

9. Submission of no case to answer

(a) May be made by D either if no case has been established in law or the
evidence led is unsatisfactory or unreliable
• Yuill v Yuill [1945] P. 15

(b) Judge should generally refuse to rule on such a submission unless D

makes it clear that he does not intend to call evidence
Civil Procedure 185

• Laurie v Raglan Co. [1942] 1 K.B. 152 C.A.

(c) Judge is not bound so to refuse and if does not put D to his election
whether to call evidence or not, D retains his right to call it if his
submission fails
• Young v Rank [1950] 2 K.B. 510; Storey v Storey [1961] P. 63 C.

(d) For the reasons behind these rules -

• Alexander v Rayson [1936] 1 K.B. 169
• U.N. Pandey v Hotel Marco Polo [1980] 1 MLJ 4
• Tan Song Gou v Goh Ya Tian [1983] 1 MLJ 60
• Ng Neoh Ha & Ors v Maniam & Ors [1994] 1 MLJ 434 (made
by two out of six defendants. Is cross-examination calling of
evidence?)
• Jaafar Shaari & Siti Jama Hashim v Tan Lip Eng & Anor [1997]
4 CLJ 509

10. Application to re-open case

• Tan Kah Khiam v Liew Chin Chuan Anor [2006] 4 CLJ 715

11. Trials before and enquires by Registrar (O. 36, r. 1 – 6 ROC)

12. Assessment of damages (O. 37, r. 1 – 6 ROC)

• Seruan Gemilang Makmur Sdn Bhd v Badan Perhubungan Umno
Negeri Pahang Darul Makmur [2015] 7 CLJ 600

13. Role of Judges in civil trial in adversarial process

• Jones v National Coal Board [1957] 2 QB 44
• Hock Hua Bank (Sabah) v Yong Link Thin [1995] 2 MLJ 213
• Yap Chwee Khim v American Home Assurance [2001] 2 SLR 421
• Ong Seow Pheng v Lotus Development [1997] 3 SLR 137
Civil Procedure 186

• Alrich Development v Rafiq Jumabhoy [1994] 3 SLR 1

• Yuill v Yuill [1945] 1 All ER 183

XXVI: INTERPLEADER PROCEEDINGS

1. O. 17 ROC

(a) Where D is sued by P claiming property held by D in which D has no

interest but which is also claimed by a third party, D may take out and
serve a summons on both claimants for an order that the issue as to
ownership be decided between them.
• Overseas Investments Pte Ltd v O'Brien & Anor [1988] 3 MLJ 332
(interpleader by sheriff).

(b) No counterclaim can be made against a person who applied for

interpleader relief
• Tetuan Teh Kim Teh, Salina & Co. v Tan Kau Tiah & Anor. FC
[2013] 5 CLJ 161

(c) Procedure

(i) Must be by originating summons unless in a pending action in

which case it shall be made by a notice of application in Form 27
or 28
• O. 17 r. 3(1) and (2) ROC

(ii) Summons or a notice of application must be served personally at

least 7 days before the return day
• O. 17 r. 4(1) ROC

(iii) Summons (except that of a sheriff) must be supported by

evidence that the applicant:
 Civil Procedure 187

(a) claims no interest in the subject-matter in dispute other

than for charges or costs;
(b) does not collude with any of the claimants to that
subject-matter; and
(c) is willing to pay or transfer that subject-matter into Court or
to dispose of it as the Court may direct.
• Tan Kim Khuan v Tan Kee Kiat (M) Sdn Bhd [1998] 1
MLJ 697

(d) Hearing
• O. 17 r. 5 ROC
• See Mallal's Supreme Court Practice (2nd Ed), p. 172-4.
• If claimant does not appear - barred from prosecuting claim.
• Parties appear:
o Summary disposal; or
o Trial

(e) Trial

(f) Withdrawal or admission

• O. 17 r. 7A ROC

XXVII: APPLICATION FOR JUDICIAL REVIEW

ORDER 53 ROC

1. O. 53 r. 1 – 5 ROC
(a) Scope, application, leave to apply, notice and damages
(b) Paragraph I of the Schedule to the Courts of Judicature Act 1964
(c) Chapter VIII of Part 2 of the Specific Relief Act 1950
• WRP Asia Pacific Sdn Bhd v Tenaga Nasional Bhd [2011] 4 CLJ
838
Civil Procedure 188

• Kelana Megah Development Sdn Bhd v Kerajaan Negeri Johor

[2016] 8 CLJ 804

(d) Test for Judicial Review: objective test

• Titular Roman Catholic Archbishop of Kuala Lumpur v Menteri
Dalam Negeri [2014] 6 CLJ 541

2. Types of prerogative orders:

(i) mandamus;
(ii) prohibition;
(iii) quo warranto;
(iv) certiorari;
(v) injunction;
(vi) declaration; and
(vii) damages.
• Jerry Wa Dusing v Menteri Keselamatan Dalam Negeri Malaysia [2014]
9 CLJ 321

3. Leave to apply

(a) “adversely affected” test - the applicant has to at least show that he
has a real and genuine interest in the subject matter. It is not
necessary for the applicant to establish infringement of a private right
or the suffering of special damage per FC in Malaysian Trade Union
Congress v Menteri Tenaga, Air dan Komunikasi [2014] 2 CLJ 525
• Sivarasa Rasiah v Majlis Peguam Malaysia & Anor [2002] 2 MLJ
413
• Md Aris Zainal Abidin v Suruhanjaya Pasukan Polis & Anor [2002]
4 MLJ 105
• Lew Peng Ching & Ors v Tawau Municipal Council [2002] 3 MLJ
326
• Bandar Utama Development Sdn Bhd & Anor v Lembaga
Civil Procedure 189

Lebuhraya Malaysia & Anor [1998] 1 MLJ 224

• Dr Amir Hussein bin Baharuddin v Universiti Sains Malaysia [1989]
3 MLJ 298
• Menteri Tenaga, Air dan Komunikasi v Malaysia Trade Union
Congress [2012] 9 CLJ 858

(b) The time frame to apply for leave is fundamental and goes to
jurisdiction
• Wong Kin Hoong v Ketua Pengarah Jabatan Alam Sekitar FC
[2013] 4 CLJ 193

(c) Delay in filing Form 111B is a mere technical non-compliance:

• National Union of Bank Employees v Director General of Trade
Union [2013] 5 AMR 729
• Omar Suhaimi Abu Hassan v Mahkamah Perusahaan [2014] 3 CLJ
720

4. Scope of Judicial Review

• Syarikat Kenderaan Melayu Kelantan Bhd v Transport Workers' Union
[1995] 2 MLJ 317:
"... In my judgment, the true principle may be stated as follows. An
inferior tribunal or other decision-making authority, whether exercising
a quasi-judicial function or purely an administrative function, has no
jurisdiction to commit an error of law. Henceforth, it is no longer of
concern whether the error of law is jurisdictional or not. If an inferior
tribunal or other public decision-taker does make such an error, then
he exceeds his jurisdiction. So too is jurisdiction exceeded, where
resort is had to an unfair procedure (see Raja Abdul Malek Muzaffar
Shah bin Raja Shahruzzaman v Setiausaha Suruhanjaya Pasukan Polis
[1995] 1 MLJ 308), or where the decision reached is unreasonable, in
Civil Procedure 190

the sense that no reasonable tribunal similarly circumstanced would

have arrived at the impugned decision.
It is neither feasible nor desirable to attempt an exhaustive definition
of what amounts to an error of law, for the categories of such an error
are not closed. But it may be safely said that an error of law would be
disclosed if the decision-maker asks himself the wrong question or
takes into account irrelevant considerations or omits to take into
account relevant considerations (what may be conveniently termed an
Anisminic error) or if he misconstrues the terms of any relevant statute,
or misapplies or mis-states a principle of the general law.
Since an inferior tribunal has no jurisdiction to make an error of law, its
decisions will not be immunized from judicial review by an ouster
clause however widely drafted. ..."

• Malaysia Airline System Bhd v Wan Sa’adi Wan Mustafa [2015] 1 CLJ
295 FC – the concept of procedural fairness;
• Superintedent of Lands and Surveys, Samarahan Division v Abas Naun
[2015] 1 CLJ 18 FC on dispute relating to Native Customary Rights

5. Damages (O. 53 r. 5 ROC)

• The court has the power to award damages to the applicant - for an
applicant to succeed he has to include a claim for damages in his
statement in support of his application.

6. Intervention in Judicial Review Proceedings

• O. 15 r. 6(2)(b) ROC does not apply. The relevant rule is O. 53 r. 8(1)

ROC.
o Majlis Agama Islam Selangor v Bong Boon Chuen [Civil Appeal No:
01(i)-3-2009(B)]
Civil Procedure 191

o Advance Synergy Capital Sdn. Bhd. v The Minister of Finance,

Malaysia [2011] 7 CLJ 557
7. Alternative Remedy
• Government of Malaysia & Anor v Jagdis Singh [1987] 2 MLJ 185
• Majlis Perbandaran Pulau Pinang v Syarikat Bekerjasama-sama
Serbaguna Sungai Gelugor dengan Tanggungan [1999] 3 MLJ 1
• Tan Wu Realty Sdn Bhd v Ketua Pengarah Hasil Dalam Negeri & Anor
[2004] 6 MLJ 53
• Tan Wu Realty Sdn Bhd v Ketua Pengarah Hasil Dalam Negeri & Anor
[2008] 6 CLJ 253 (CA)
• Iskandar Coast Sdn. Bhd. v Ketua Pengarah Hasil Dalam Negeri [2019]
7 CLJ 143

XXVIII: CHARGE ACTIONS

ORDER 83 ROC

1. Application

(a) A charge action is an action to which O. 83 ROC applies.

(b) Order 83 ROC applies to any action (whether begun by writ or

originating summons) by a chargee or chargor or by any person having
the right to foreclose or redeem any charge, being an action in which
there is a claim for any of the following reliefs namely -

(i) payment of moneys secured by the charge;

(ii) sale of the charged property;
(iii) foreclosure;
(iv) delivery of possession (whether before or after foreclosure or
without foreclosure) to the chargee by the chargor or by any
other person who is or is alleged to be in possession of the
property;
Civil Procedure 192

(v) redemption;
(vi) reconveyance of the property or its release from the security;
(vii) delivery of possession by the chargee.

• Pancaran Nilam (M) Sdn. Bhd. v Malayan Banking Bhd [2000] 4

MLJ 625.

(c) Meaning of "charge" and “foreclosure"

(i) Charge includes a legal and an equitable charge (O. 83 r. 1(2))

• Sime Bank Bhd v Mohd Hassan bin Sulaiman [2000] 2 MLJ
158 (O. 83 r. 1(2) not discussed)

(ii) Foreclosure is used to mean the steps takenfor the sale of

mortgaged property by a court order or by a power of sale
contained in the mortgage so that the sale proceeds can be used
to pay off the debt.
• Citibank NA v Ibrahim bin Othman [1994] 1 MLJ 608
• Kandiah Peter v Public Bank Bhd [1994] 1MLJ 119

(iii) Foreclosure in redemption action

• O. 83 r. 5 ROC.

(d) O. 83 ROC, which exists for the protection of a class of persons, may
not be contracted out of.
• Phileoallied Bank (Malaysia) Bhd v Bupinder Singh Avatar Singh
& Anor [2002] 2 CLJ 621.
• Subject Outline for Professional Practice (Land Law & Land
Dealings) on Security Transaction under Order for Sale: Sections
253-265 paragraph (b), O. 83 ROC

(e) Collateral attack on Order for Sale

• CIMB Investment Bank Bhd v. Metroplex Holdings Sdn Bhd
Civil Procedure 193

[2014] 9 CLJ 1012 FC

2. Affidavit in Support: O. 83 r. 3 ROC

(a) O. 83 r. 3 ROC applies when in a charge action begun by orginating

summons in which the plaintiff is the chargee and claims delivery of
possession or payments of moneys secured by the charge or both.

(b) The contents of the affidavit in support: O. 83 r. 3(2) - (6) ROC

This is a mandatory provision.
• Perwira Habib Bank Malaysia Bhd v Lum Choon Realty Sdn Bhd
[2005] 4 CLJ 345
• See also:
o Citibank NA v Ibrahim bin Othman [1994] 1 MLJ 608
o Maimunah bte Megat Montak v Mayban Finance Bhd
[1996] 2 MLJ 422
o Multi Purpose Bank Bhd v Diamond Agreement Sdn. Bhd.
[2000] 5 MLJ 576
o OCBC Bank (M) Bhd v CTK Enterprise Sdn. Bhd. [2000] 6
MLJ 372
o Bank Pertanian Malaysia v Zainal Abidin bin Kassim [1995]
2 MLJ 537
o Hongkong Bank (M) Bhd v William Tan Enterprise Sdn.
Bhd. [1999] 3 MLJ 293
o Overseas Union Bank (M) Bhd v L & L Properties Sdn.
Bhd. [1999] 2 MLJ 637

3. Claim for possession: Procedure whereby defendant fails to enter

appearance (O. 83 r. 2 ROC)
Civil Procedure 194

(a) O. 83 r. 2 ROC applies when in a charge action begun by orginating

summons, being an action in which the plaintiff is the chargee and
claims delivery of possession or payments of moneys secured by the
charge or both.

(b) Not less than 4 clear days before the day fixed for the first hearing of
the origination summons the plaintiff must serve on the defendant a
copy of the originating summons and a copy of the affidavit in support.
See also O. 83 r. 2(3) & (6) ROC.
• Sivahadatcham a/l Sethuram v Vandayar v CIMB Bank Bhd [2019]
2 AMR 897

(c) Where the hearing is adjourned and the defendant was absent from the
hearing then, subject to any directions given by the Court, the plaintiff
must serve written notice of the adjourned hearing together with a
copy of any further affidavit intended to be used at the hearing, on the
defendant not less than 2 clear days before the day fixed for the
hearing.

(d) Proof of service by way of an affidavit of service (see O. 83 r. 2(5)

ROC).
• OCBC Bank (Malaysia) Bhd v Lean Seng Pottery Factory Sdn.
Bhd. [1999] 2 MLJ 402
• Asia Commercial Finance (M) Bhd v Kimden Housing
Development Sdn. Bhd. [1993] 1 MLJ 283

XXIX: SUMMARY PROCESS FOR RECOVERY OF LAND

1. O. 89 ROC (equivalent English Order is O. 113).

Civil Procedure 195

(a) Who can apply?

• O. 89 r. 1 ROC

(b) Proceedings to be brought by Originating Summons in Form 8A and

shall include the following note at the end thereof:

“Note: Any person occupying the premises who is not named as a

defendant by this originating summons may apply to the Court
personally or by solicitor to be joined as a defendant. If a person
occupying the premises does not attend personally or by solicitor at the
time and place abovenamed, such order will be made as the Court may
think just and expedient.”

• O. 89 r. 2(1) ROC

(c) Contents of Affidavit in support

• O. 89 r. 3 ROC

(d) Service of originating summons

• O. 89 r. 4 ROC

(e) Order for possession shall be in Form 195

2. See:
• Bahari bin Taib & Ors v PTG Selangor [1991] 1 MLJ 343
• Mr. R.R. Sethu's article in [1993] 1 MLJ xxv
• Titular Roman Catholic Bishop of Penang v Stephen Ramachandran
[1994] 3 MLJ 4
• Cheow Chew Khoon v Abdul Johari bin Abdul Rahman [1995] 1 MLJ 457
• Beh Lee Liong v Chew Soh Suak @ Chew Sar Son & Anor (1996) 1 CLJ
173
• Punca Klasik Sdn Bhd v Liza James & Ors (1996) 3 CLJ 932
Civil Procedure 196

• Shaheen bt Abu Bakar v Perbadanan Kemajuan Negeri Selangor &

Other Cases (1996) 2 CLJ 965
• Norimah bte Mohamed & Ors v Bukit Lenan Development Sdn Bhd and
other appeals [2000] 3 MLJ 129
• Orang-orang yang menduduki rumah di bawah hakmilik Geran No.
26977 Lot 4271, Johor Bahru v Punca Klasik Sdn Bhd [1997] 3 MLJ 761
• Juta Permai Sdn Bhd v Mohd Zain Bin Jantan & Ors [2001] 2 MLJ 322
• Nor Nyawai v Tatau Land Sdn. Bhd. [2014] 9 CLJ 779

XXX: COSTS

1. Meaning

(a) Remuneration which a party pays to his own solicitor.

(b) The sum which one litigant pays to another litigant to compensate the
latter for the expense which he has incurred in the litigation.
• Bangkok Bank Bhd v Chuan Kee Co Sdn Bhd [2000] 2 MLJ 113
• Kandiah Peter v PBB [1994] 1 MLJ 119 (SC)
• Serjit Singh Khanra v Government of Sarawak [1995] 4 MLJ 1

2. An order for costs is essential

• O. 59 r. 3 ROC.

3. Discretion of the court

(a) Court's power to award costs is discretionary (see O. 59 r. 3 and r. 8

ROC). On how the discretion should be applied, see Mallal's Supreme
Court Practice pp. 737-738.
• Yukilan Manufacturing Sdn Bhd &Anor v Dato' Wong Gek Meng
& Ors [1998] 5 MLJ 1.
• O. 59 r. 16 ROC
Civil Procedure 197

(b) As between litigants the general principle is "costs follow the event" i.e.
the loser pays the winner's costs and is left to bear his own costs
• O. 59 r. 3(2) ROC

(c) The general rule sometimes gives way in pariticular circumstances. For
example, the court may award the winner only a proportion of his costs
or his costs from or up to a specified stage of the proceedings.
Sometimes the court may make no order as to costs, in which case
each party will be left to bear his own. Sometimes the winner may have
to pay the loser's costs of certain matters.

(d) Exceptions to the rule that costs follow the event:

(i) Claim under an illegal contract

In Cheng Mun Siah v Tan Nam Su [1980] 2 MLJ 269, an

agreement between P and D contravened the Singapore
Residential Property Act 1976. Rajah J. in his judgment said:
"As the whole of this transaction is already an illegal one and as
both parties to the transaction have contravened some of the
provisions of section 3 of the Act and as such punishable under
section 25 of the Act I cannot see how the court can be called
upon to assist either one or the other of the parties with regard
to the agreement in question. It seems to me that this issue is
further governed by the maxim "in pari delicto potior est
conditio defendentis." Under the maxim a party to an illegal
contract who seeks to recover what he has transferred under it
will normally be denied relief on the ground that he cannot be
heard to allege his own turpitude and that any loss he may
suffer is well-deserved.
Civil Procedure 198

I therefore dismiss the plaintiff's application. There will be no

order as to costs since both parties have offended against the
law."

(ii) Misconduct or neglect

• Langan & Henderson p. 313 (0. 59 r. 5 ROC)

(iii) Successful on a point not raised below

• Anna Jong Yu Hiong v Government of Sarawak [1972] 2
MLJ 244 (F.C.)

Per Azmi L.P.:

"On the question of costs [Counsel] should have brought
to the notice of the court below the case of Parry v
Cleaver. He had therefore succeeded on a point not
raised in the court below. As Cotton L.J. in Hussey v
Horne-Payne said:
As our decision in favour of the defendant turns upon a
point not raised by him in the court below, I agree with
what the Master of the Rolls has said as to the costs.'
And the Master of the Rolls Jessel M.R. disallowed costs
of the appeal. Again, in this appeal the appellant was
only partly successful. That is another good reason for
disallowing the costs of this appeal. As to costs in the
court below, the learned judge disallowed the costs
because the amount awarded by him was less than the
amount deposited by the defendant in court before the
commencement of the trial and now that the amount we
award exceeds the deposit the plaintiff should have the
Civil Procedure 199

costs in the court below. Her deposit of $500 will be

repaid to her."

(iv) Relevant authorites not cited

• Re Syed Alsagoff, Decd. [1961] 27 MLJ 150

In this appeal case, it was discovered that the appellant had not
referred two "very relevant" cases to the learned judge.
Although the appeal was allowed no order as to costs was made
for both the appeal and trial stages.
(v) For cases ("a very unusual thing") where the successful party
was asked to pay the loser's costs
• Chen Chow Lek v Tan Yew Lai [1983] 1 MLJ 170 (F.C.)
• Petroliam Nasional Bhd & Anor v Cheah Kam Chiew [1987]
1 MLJ 25.

(vi) Other exceptions e.g. O. 59 rr. 3 & 5 ROC.

4. Costs against advocate and solicitor personally

• 59 r 6 ROC
• Karpal Singh v Atip bin Ali [1987] 1 MLJ 291

5. Assessment of costs

(a) The party receiving costs is entitled only to his "assessed costs".

(b) The basis of assessment

• O. 59 r. 16 - 19 ROC

(c) Sir Robert Megarry VC in EMI Records v Wallace [1982] 2 All E.R. 980
said:
Civil Procedure 200

"[I] turn to [O. 59] which deals with costs. The process of reading
through the main body of the order, even without the appendices, is
one that brings to mind Oliver Cromwell's phrase, 'an ungodly jumble.'
Matters of principle and substance lie cheek by jowl with details of
procedure; and if one day there is to be a rewritten order, there will be
little difficulty in achieving an improvement on the present drafting. ...
[T]here are five main bases of taxation to be considered. I shall take
them in turn.
(1) The party and party basis. By [r. 27(2)] where costs are taxed
on the party and party basis, there are to be allowed 'all such
costs as were necessary or proper for the attainment of justice
or for enforcing or defending the rights of the party whose costs
are being taxed.' The essence of this head is thus what is
'necessary or proper;' and this, of course, is the strictest of the
normal heads of taxation.
(2) The common fund basis. Under [r. 27(4)] the court may direct
a taxation on the common fund basis; and this is stated to be 'a
more generous basis' than the party and party basis. In place of
'necessary or proper,' what is to be allowed is 'a reasonable
amount in respect of all costs reasonably incurred.' On such a
taxation 'the ordinary rules applicable on a taxation as between
solicitor and client where the costs are to be paid out of a
common fund' are to be applied, even if in fact the costs will not
be paid out of any common fund. The common fund basis
seems to have been intended to replace the old 'solicitor and
client' basis (in one of the four meanings of the phrase 'solicitor
and client': see Gibbs v Gibbs [1952] 1 All E.R. 942 at 949,
[1952] P. 332 at 347), though in doing so it not very happily
uses the very phrase itself. In the end, the practical result
seems to be that taxation on the common fund basis is little
more than a party and party taxation conducted 'on a more
Civil Procedure 201

generous scale': see Giles v Randall [1915] 1 K.B. 290 at 295,

[1914-15] All E.R. Rep. 285 at 286, per Buckley L.J. It is
sometimes said that on average a common fund taxation
produces a figure some 5 to 10% higher than a party and party
taxation; and that may be so.
(3) The trustee basis. Under [rr 30(1) and (2)] costs may be given
on a trustee basis if the costs are to be paid out of a fund, or
the person to whom the costs are to be paid was a party to the
proceedings qua trustee or personal representative; and in such
cases 'no costs shall be disallowed, except in so far as those
costs or any part of their amount should not, in accordance with
the duty of the trustee or personal representative as such, have
been incurred or paid, and should for that reason be borne by
him personally.' No question of any such order arises in the
present case, and I need not discuss it; but it will be observed
that here the thrust of the taxation has been shifted from what
is to be included to what is to be excluded; it is no longer a
question of allowing only those items which are necessary or
proper whether on a more generous scale or not, but instead
has become a matter of prohibiting the disallowance of any item
unless it falls within the words of the exception.
(4) The solicitor and own client basis. By [r. 28] provision is made
for the taxation of a solicitor's bill to his own client for
contentious work, apart from legal aid cases. Under r. 29(1), on
such a taxation, 'all costs shall be allowed except in so far as
they are of an unreasonable amount or have been unreasonably
incurred.' This resembles the trustee basis in that it allows
everything except any items which fall within the words of
disallowance; but it differs from all the other three heads in that
it is dealing with what a litigant must pay his own solicitor, and
not what he must pay the other side. The essence of the rule
Civil Procedure 202

lies in the two phrases 'unreasonable amount' and 'unreasonably

incurred;' and these phrases are qualified by two presumptions
made by other paragraphs. First, by para (2), all costs incurred
with the client's express or implied approval are 'conclusively
presumed' to have been reasonably incurred; and similarly as to
amount, if the client has expressly or impliedly approved it.
These conclusive presumptions, however, take effect subject to
para (3). Second, by para (3), there is a rebuttable presumption
that any costs which in the circumstances are of an 'unusual
nature,' and would not be allowed on a party and party taxation,
have been unreasonably incurred, unless the solicitor expressly
informed his client before they were incurred that they might
not be allowed. In due course I shall have to return to these
presumptions ..."
In the EMI Records case in proceedings for contempt of court
the defendants were ordered to pay the plaintiffs' costs on an
"indemnity basis." When the costs came to be taxed the
question arose as to whether the court had the power to order
costs on an "indemnity basis" and as to how the order should be
interpreted since the Rules made no express mention of such an
order. Sir Robert Megarry V.C. held the court had the power to
order costs to be paid on an indemnity basis. The effect of an
order on an indemnity basis is, unless otherwise provided, that
the rule laid down in [O. 59 r. 27(2)] applies, but not the
presumptions set out in [r. 27(2)]. In brief, the result is that all
the costs incurred will be allowed except any which have been
unreasonably incurred or are of an unreasonable amount; and in
applying these exceptions the receiving party will be given the
benefit of the doubt.
(5) Costs on indemnity basis - Takako Sakao v Ng Pek Yuen & Anor
(No. 2) [2010] 1 CLJ 419.”
Civil Procedure 203

(d) Court is empowered to direct a non-party to pay costs

• Takako Sakao v Ng Pek Yuen & Anor (No. 3) [2010] 1 CLJ 429

5. Several Parties
(a) General principles.

(b) Bullock and Sanderson Orders

Assume P is a passenger in a vehicle driven by D which collides with a

vehicle driven by E. P sues D and E. D and E blame each other for the
collision. At the trial, D is held to be solely liable
• Muniandy v Tan Lian Hock [1963] 29 MLJ 230)
• Takong Tabari v Government of Sarawak & Ors [1998] 4 MLJ
512

The Court may make a Bullock order in the following terms:

(i) Judgment for P against D with costs
(ii) Claim against E dismissed; P to pay E's costs
(iii) D to pay P costs so paid by P to E

In some circumstances, D (the unsuccessful defendant) will be ordered

to pay E's (the successful defendant's) costs to him directly. Thus, if P
is insolvent, a Bullock order will not assist E to recover his costs. In
such a case a Sanderson order in the following terms will be useful:

(a) Judgment for P against D with costs

(b) Claim against E dismissed; D to pay E's costs.

(c) See the following cases:

Civil Procedure 204

• Bullock v London General Omnibus [1907] 1 K.B. 264

• Sanderson v Blyth Theatre [1903] 2 K.B. 533

(d) For an example of a Bullock order, see Federal Flour Mills Ltd. v "Ta
Tung" [1971] 2 MLJ 201 per Abdul Hamid J. as he then was):
"In this case, I am quite satisfied that in view of the circumstances of
this particular case, the plaintiffs were quite justified in bringing in the
second defendants as co-defendants. Nevertheless, what the court has
to consider is this. If costs of the second defendants are ordered to be
paid direct by the first defendants, it might amount to completely
depriving the second defendants of their costs. The only asset of the
first defendants prior to instituting the action was the ship which was
arrested by the plaintiffs. It was later released on a bank guarantee to
the extent of $190,000 which sum in actual fact represented the only
sum available to satisfy the claim including interest and costs. The
plaintiffs' claim excluding interest at 6% and costs amounts to
$169,291.34. The amount guaranteed is therefore quite insufficient to
cover even the plaintiffs' claim.
In view of these circumstances, I am of the opinion that the proper
order as to costs of the second defendants is to order the plaintiffs to
pay the second defendants' costs. The costs of the second defendants
paid by the plaintiffs shall be included in the costs to be paid by the
first defendants to the plaintiffs."

6. Costs of interlocutory proceedings (0. 59 r. 20 and r. 21 ROC)

(a) There are many ways in which a court may deal with costs of the many
interlocutory stages of action.

(b) Reserved costs

• Question of the incidence and amount of costs is postponed to

Civil Procedure 205

the end of the trial.

(c) Costs in cause; Plaintiff's costs in the cause, Plaintiff's costs in any
event, Plaintiff's costs.

Lord Denning M.R. in J.T. Stratford & Son Ltd. v Lindley No. 2 [1969] 1
W.L.R. 1547 described these orders:
"There is no definition in any law book of the words 'costs in the
cause.' But every pupil on his first day in chambers is told what it
means. 'Costs in the cause' means that the costs of those interlocutory
proceedings are to be awarded according to the final award of costs in
the action. If the plaintiff wins and gets an order for his costs, he gets
those interlocutory costs as part of his costs of the action against the
defendant. Vice-versa, if the defendant wins and gets an order for his
costs, he gets those interlocutory costs as part of his costs of the
action against the plaintiff ... 'Plaintiff's costs in the cause' means that
if the plaintiff wins, he gets the costs of the interlocutory proceedings:
but, if he loses, he does not have to pay the other side's costs of them.
'Plaintiff's costs in any event' means that, no matter who wins or loses,
when the case is decided, or settled, the plaintiff is to have the costs of
those interlocutory proceedings. 'Plaintiff's costs' means that the
plaintiff is to have the costs of the interlocutory proceedings without
waiting for a decision."

(d) Defendants costs in the cause, defendants costs in any event,

defendants costs
• These have corresponding meanings to (b).

(e) Costs thrown away

The order "costs thrown away" is often made on a successful
application to set aside a judgment obtained in default of appearance
or defence, and indicates that the defendant must pay all the plaintiff's
Civil Procedure 206

costs which have been reasonably incurred ... If, however, the
judgment set aside was obtained irregularly, so that the defendant was
entitled to have it set aside, he will be awarded the "costs thrown
away."

(f) Costs of the day

• Costs awarded against a party who makes a successful
application for the postponement of a hearing.
• See also the interpretation set out in O. 59 r. 1 ROC

7. Security for costs

(a) O. 23 ROC
• Kasturi Palm Products v Palmex Industries Sdn Bhd [1986] 2 MLJ
310
• Faridah Begum v Dato' Michael Chong [1995] 2 MLJ 404
• Raju Rajaram Pillai v MMC Power Sdn Bhd [2000] 6 MLJ 551

(b) O. 23 r. 1ROC
(i) P ordinarily resident out of the jurisdiction
(ii) P nominal plaintiff and there is reason to believe that he will be
unable to pay
(iii) P's address not stated or is incorrectly stated (unless
mis-statement innocently made)
(iv) P changed address during proceedings to evade consequences of
litigation.

(c) Exercise of the discretion

(i) Is P's claim bona fide? Has he reasonably good prospects of
success?
(ii) Is there an admission by D?
Civil Procedure 207

(iii) Is the application oppressive e.g. to stifle a genuine claim?

(iv) Has P's want of means been brought about by D?
(v) Stage of the proceedings at which appliction is made (should be
made as early as possible)
• Co. v K. Ltd [1987] 3 All E.R. 377)
• Porzelack KG v Porzelack (U.K.) Ltd. [1987] 1 All E.R. 1074

(d) 0. 23 r. 2A-C

(i) The Court may order a non-party to the action to give security
for costs.

(ii) Interlocutory application

• O. 59 r. 22 ROC

(iii) Trial
• O. 59 r. 23 ROC

XXXI: JUDGMENTS & ORDERS

1. Governing Rules

• Order 42 ROC

2. Definition

(a) "Judgment and order are interchangeable terms. Generally, where a

decision brings finality to an action, it is termed as judgment (e.g.
Default Judgment, Summary Judgment). Where the decision of the
court in only interlocutory in nature it is more readily referred to as an
order (e.g. Order for discovery, Order to amend pleadings etc).":
• Janab's Key to Civil Procedure in Malaysia & Singapore.
Civil Procedure 208

(b) "A judgment is a decision obtained in an action and any other decision
is an order"
per Lord Esher MR in Onslow v Commissioners of Inland Revenue
(1890) 25 QBD 465.

3. Inspection of judgment

• O. 42 r. 2A ROC – Any member of the public is entitled to a copy of

judgment delivered in open Court upon payment of prescribed fee.

• O. 42 r. 1A ROC - Judgment delivered in respect of proceedings in

camera are not available for public inspection except with the
permission of the Court.

4. Form of judgment

• O. 42 r. 5 ROC provides that where Form 75 prescribes the form for a

particular judgment, then the judgment must be in that form.
5. Judgment, etc requiring act to be done

(a) Time for doing it – O. 42 r. 6 ROC:

“(1) Subject to paragraph (2), a judgment or order which requires a
person to do an act must specify the time after service of the judgment
or order, or some other time within which the act is to be done.

(2) Where the act which any person is required by any judgment or
order to do is to pay money to some other person, give possession of
any immovable property or deliver any movable property, a time within
which the act is to be done need not be specified in the judgment or
order by virtue of paragraph (1), but the foregoing provision shall not
affect the power of the Court to specify such a time and to adjudge or
order accordingly.”
Civil Procedure 209

(b) The judgment or order must state the time within which the act must
be done but an omission to do so may be cured by a subsequent order
• Re Wilde [1910] WN 128, CA
• Cotton v Heyl [1930] 1 CH 510, [1930] All ER Rep 375

(c) Failure to cure such omission may render the judgment or order invalid
and the person affected by the judgment or order may apply to have it
set aside as of right
• Hitachi Sales (UK) v Mitsui Osk Lines [1986] 2 Lloyd's Rep 574,
CA.

(d) Where a judgment or order specifies a time for doing an act, it must be
served personally within the time limited for doing the act
• Re Seal (1903) 1 Ch 87
• Iberian Trust Ltd v Founders Trust and Investment Co Ltd [1932]
2 KB 87,[1932] All ER Rep 176

(e) Where a judgment or order for doing an act must be enclosed with a
notice under O. 45 r. 7(4) and Form 83. Failure to comply would
prohibit enforcement proceedings
• OKRST Arumugam v KRSSP Suppiah Chettiar [1935] MLJ 4, CA
• The Vanda [1960] MLJ 283, CA

6. Date upon which judgment and order takes effect (O. 42 r. 7 ROC)

(a) A judgment or order of the court takes effect from the day of its date (O.
42 r. 7(1) ROC).

Such judgment or order delivered by the High Court shall be dated as

of the day on which it is pronounced, given or made, unless the Court
Civil Procedure 210

orders it to be dated as of some other earlier or later day, in which

case it shall be dated as of that other day (O 42 r 7(2) ROC). This rule
applies to all judgments and order regardless of whether the same is
pronounced, given or made in open court or chambers or by a Judge or
Registrar.

(b) Power of the court under O 42 r 7(2) ROC should only be exercised on
good grounds
• Yeo Kim Huan v Hamid [1968] 2 MLJ 188

7. Preparation of judgments and orders

• O. 42 r. 8

“(1) Where the party in whose favour a judgment or order is given or

made is represented by a solicitor, a copy of the draft shall be
submitted for approval to the solicitor (if any) of the other party
who shall within 2 days of the receipt thereof, or within such
further time as may in any case be allowed by the Registrar,
return such copy with his signed consent or any required
amendments thereto.
(2) When the solicitor omits to return the copy of the draft within
the time prescribed, he shall be deemed to have consented to
the terms thereof.
(3) In any case where the solicitor concerned are unable to agree
upon the draft, any one of them may obtain an appointment
before the Registrar, of which notice shall be given to the other,
to settle upon the terms of the judgment or order.
(4) Every judgment or order shall be settled by the Registrar, but in
the case of a judgment or order made by a Judge or Magistrate
any party may require the matter in dispute to be referred to the
Judge or Magistrate for his determination.
Civil Procedure 211

• Parasumaran a/l Kuppan v Sazali bin Md Akhir [1999] 4

MLJ 113, CA
• Sang Lee Company Sdn. Bhd. v Munusamy Karuppiah
[2010] 5 CLJ 229

(5) Where the other party has no solicitor, the draft shall be
submitted to the Registrar.”

8. Orders required to be drawn up

• O. 42 r. 9 ROC

o Types of orders that are required to be drawn up.

o Types of orders that is not required to be drawn up unless the

court otherwise directs.

9. Drawing up and entry of judgments and order

• O. 42 r. 10 ROC

10. Duplicates of judgments and orders

• O. 42 r. 11 ROC

11. Interest on judgments and orders

(a) O. 42 r. 12 ROC:

“Subject to rule 12A, except when it has been otherwise agreed

between the parties, every judgment debt shall carry interest at such
rate as the Chief Justice may from time to time determine or at such
other rate not exceeding the rate aforesaid as the Court determines,
Civil Procedure 212

such interest to be calculated from the date of judgment until the

judgment is satisfied”.

(b) Court can award interest at more than the prescribed rate if the rate of
interest had been agreed upon by the parties
• Lee Tain Tshung v Hong Leong Finance Bhd [2000] 3 MLJ 364,
CA.

(c) A post-judgment interest rate which is in excess of the statutory

minimum provided for under O. 42 r. 12 ROC and s.16 (1) CJA is illegal
and would entitle the court to set aside the judgment ex debitio
justitiae unless the Plaintiff can prove that he is entitled to a higher
interest rate:
• Kong Ming Bank Bhd v Lau Pang Thang [1995] 1 MLJ 567
• Integrated Technologies Distribution Sdn Bhd v Patimas Computer
Systems Sdn Bhd [2011] 6 CLJ 289
• Ritz Garden Hotel (Cameron Highlands) Sdn. Bhd. v Balakrishnan
Kaliannan FC [2013] 7 CLJ 413: Court’s power to grant post-
judgment interest

(d) O. 42 r. 12A
• Late payment charge on judgment debt arising from financial
transaction in accordance with Shariah.

12. Setting aside or vary judgments and orders

(a) “Where in these Rules provisions are made for the setting aside or
varying of any order or judgment, a party intending to set aside or to
vary such order or judgment must make his application to the Court
and serve it on the other party who has obtained the order or judgment
within thirty days after the receipt of the order or judgment by him”.
• 42 r 13 ROC
Civil Procedure 213

• Chong Keat Realty Sdn Bhd v Ban Hin Lee Bank Bhd [2003] 3
MLJ 321
• Ramlan bin Kamal v Perbadanan Nasional Bhd [2004] 1 MLJ 425
• Ng Han Seng & Ors v Scotch Leasing Sdn Bhd (Appointed
Receivers & Managers) [2003] 4 MLJ 647
• Hong Kwi Seong v Ganad Media Sdn. Bhd. FC [2013] 9 CLJ 277

(b) Apart from amendments allowed under slip rule (O. 20 r. 11 ROC), or
amendment or setting aside for default of appearance, pleadings and
absence of a party at the trial or hearing, the court has no power under
any application in the same action to alter, vary or set aside, a
judgment regularly obtained or an order after it is drawn up, the Judge
is functus officio
• Hock Hua Bank v Sahari bin Murid [1981] 1 MLJ 143
• Mui Bank Bhd v Cheah Kim Yu [1992] 2 MLJ 642:
"The application to intervene in the present proceedings was not
made until a week after the issue of the certificate of sale by
which time the auction sale was completed. The learned judge
was clearly functus officio by then. Indeed, following Hock Hua
Bank Bhd v Sahari bin Murid, the learned judge was functus
officio after he made the order for the sale on 29 August 1988.
In Hock Hua case, the allegation of fraud and forgery were
made after the judge had made the order for sale but before the
auction sale and the Federal Court held that the judge was
functus officio after he made the order for sale in foreclosure
proceedings when the order had been drawn up and perfected.
True, after making an order for sale, the judge has the power to
make other orders, including changes in the reserve price and
the auction sale dates, but such orders are consequential to the
order for sale. The point here is that the order for sale is a final
order unless appealed against. Once the order for sale is made,
Civil Procedure 214

drawn up and perfected, as here, the learned judge is functus

officio and therefore has no power to set aside the order for
sale.”: per Harun Hashim SCJ.

• However, in Badiaddin bin Mohd Mahidin v Arab Malaysian

Finance Bhd [1998] 1 MLJ 395, the Federal Court has made
these exceptions:
"For my part, I must hasten to add that apart from breach of
rules of natural justice, in any attempt to widen the door of
inherent and discretionary jurisdiction of the superior courts to
set aside an order of court ex debitio justitiae to a category of
cases involving orders which contravened 'any written law',
the contravention should be one which defies a
substantive statutory prohibition so as to render the
defective order null and void on ground of illegality or
lack of jurisdiction. It should not for instance be applied to a
defect in a final order which has contravened a procedural
requirement of any written law. The discretion to invoke the
inherent jurisdiction should also be exercised judicially in
exceptional cases where the defect is of such a serious nature
that there is a real need to set aside the defective order to
enable the court to do justice. In all cases, the normal appeal
procedure should be adopted to set aside a defective order,
unless the aggrieved party could bring himself within the special
exception.” (emphasis added): per Mohd Azmi FCJ.

• The Federal Court has further explained the above legal position
in Serac Asia Sdn. Bhd. v Sepakat Insurance Brokers Sdn. Bhd.
[2013] 6 CLJ 673
Civil Procedure 215

• The Federal Court in Ang Game Hong v Tee Kim Tiam [2020] 1
CLJ 141 ruled that an order made in breach of natural justice is
clearly such an order that the person affected by the order can
apply to have it set aside in collateral proceedings.

• Court of Appeal cases of Lee Gee Pheng v RHB Bank Bhd [2004]
1 MLJ 618 & Hong Leong Finance Berhad v Staghorn Sdn Bhd
(Rayuan Sivil No 13-02-132-1995) (2005).

• The Federal Court in Ann Joo Steel Bhd v Pengarah Tanah &
Galian Negeri Pulau Pinang [2019] 9 CLJ 153 ruled that one may
apply to set aside an order of a superior court but it must be
made in a direct and specific proceeding filed for that purpose be
it in the same proceedings or a separate one. It could not be
contested merely by raising it as defences in a suit, as being
undertaken in these appeals. See also Ang Game Hong v Tee
Kim Tiam [2020] 1 CLJ 141.

• The Federal Court in Lai Cheng Ooi v Lim San Peen [2018] 7 CLJ
145 ruled that the principle that a judge has no power or
jurisdiction to set aside an order of another judge of concurrent
jurisdiction does not apply to ex parte orders.

• But prior to the judgment or order being drawn up and

perfected, the courts retain absolute jurisdiction to alter, vary,
modify or set aside its own order or judgment:
o Re Harisson's Shares Under a Settlement [1955] Ch 260,
[1955] 1 All ER 185
o Syarikat Marak Jaya Sdn Bhd v Syarikat Masinda Sdn Bhd
[1991] 2 MLJ 417
Civil Procedure 216

• The doctrine of functus officio does not apply to cases where

amendment of order is sought. The Court has power to amend
its order, depending on the facts and justice of the case:
o Subramaniam a/l P Govindasamy v Susila a/p Sankaran
[2017] 5 AMR 674
• The Court has power to vary an earlier order so that the whole
purpose of the earlier order would not be defeated, as long as
the order has not been substantially altered as to make it an
entirely new order
o Tay Ek Seng Company Sdn Bhd & Ors. v Tay Cho Koh &
Ors.[1975] 2 MLJ 167, FC
o Thynne v Thynne [1955] P. 272

• There is jurisdiction to make upon proof of new facts an order

supplemental to an original order
o Ford-Hunt v Singh [1973] 1 W.L.R. 738

(c) Varying a consent order

• Ooi Siew Yook & Ors v Lim Bar Kee [1987] 2 MLJ 267
• Zainuddin bin Muhammad v Atsco Ltd & Anor [2003] 1 MLJ 369
• Jasa Keramat Sdn Bhd v Monatech [2003] 6 MLJ 69
• a consent order is akin to a contract with superadded command
of the court. Thus, it must be given its full contractual effect. It
is to be interpreted in the same manner as the court would a
contract. The canons of interpretation are as familiar as any
canons of construction would be to a legal practitioner. The
paramount consideration is to ascertain the intention of the
parties to the consent judgment. Such intention is to be
objectively assessed by the court, in particular by reviewing the
language employed in the consent judgment
Civil Procedure 217

– per Federal Court in Kamil Azman Abdul Razak v Amanah Raya Bhd
[2019] 6 CLJ 419

(d) Slip Rule (O. 20 r. 11 ROC)

• Clerical mistakes in judgment or orders, or errors arising therein
from any accidental slip or omission, may at any time be
corrected by the Court by summons without an appeal. See the
following cases:
o Carter v Carter [1980] 1 All E.R. 827
o Tay EK Seng Company Sdn Bhd & Ors v Tay Cho Koh &
Ors [1975] 2 MLJ 167
o In the Estate of Embi bin Haji Abdullah [1934] 3 MLJ 71
o Philip Securities (Pte) v Yong Tet Miaw [1988] 3 MLJ 61
(judgment entered for a greater sum).
o Hotel Ambassador (M) Sdn Bhd v Seapower (M) Sdn Bhd
[1991] 1 MLJ 404 (court also has inherent power)
o Syarikat Marak Jaya Sdn Bhd v Syarikat Masinda Sdn Bhd
[1991] 2 MLJ 417
o Evans v Bartlam [1937] AC 473
o United Malayan Banking Berhad v Chew Chee Sun [1996]
3 CLJ 533
o Sang Lee Company Sdn Bhd v Munusamy Karuppiah
[2010] 5 CLJ 229
o Tak Ming Co. v Yee Sang Metal Suppliers Co. [1973] 1
W.L.R. 300 (Under the slip rule, where there has been
accidental omission by counsel or party to ask for ancillary
or consequential order, that is sufficient to bring the slip
rule into operation)
o Subramaniam a/l Govindasamy v Susila a/p S Sankaran
[2017] 5 AMR 674 (the Court has the power to amend the
order for decree nisi under the slip rule even after it is
Civil Procedure 218

sealed)

(e) Committal proceedings: O. 52 r. 3(2) ROC

• Lee Heng Moy v Christopher Wong Wai Yee [2011] 3 CLJ 372
• Tan Sri Dato’ (Dr) Rozali Ismail v Lim Pang Cheong [2012] 2 CLJ
849
• Uthayakumar Ponnusamy v Abdul Wahab Abdul Kassim [2020] 1
CLJ 82

XXXII: ENFORCEMENT OF JUDGMENTS

1. Time limit

(a) See section 6(3) Limitation Act 1953; (Sabah) Limitation Ordinance
(Cap. 72) - Part V of the Schedule; (Sarawak) Limitation Ordinance
(Cap. 49) - Part V of the Schedule.

The Federal Court in Gee Boon Kee v Tan Pok Shyong [2018] 1 CLJ
565 considered Daud v Ibrahim [1961] 27 MLJ 43 &United Malayan
Banking Corp Berhad v Ernest Cheong Yong Yin[2002] 2 CLJ 413 and
held the word “action” in sections 2(1) and 6(3) to mean a fresh action

(b) Execution after 6 years but before 12 years. Leave necessary in the
case of writs of execution.
• O. 46 r. 2(1)(a) ROC
• Tio Chee Hing v Chung Khiaw Bank [1981] 1 MLJ 227
• Affin Bank Berhad v Wan Abdul Rahman Bin Wan Ibrahim
[2003] 2 AMR 1;
• Amfraser Securities Pte Ltd v Poh Gaik Lye [2016] 6 CLJ 637,
FC
Civil Procedure 219

2. Generally, no execution against the Government

• Section 33(4) Government Proceedings Act 1956

• Section 35 Government Proceedings Act 1956 (see under garnishment
below)
3. Discovery in aid of execution

• O. 48 ROC: Debtor appears before Regirstrar to be examined.

• Section 4 DA: Debtor on examination may be ordered to pay in one
lump sum or by instalments. Failure to comply may lead to committal
and imprisonment (see section 4(8) DA).

4. Enforcement of money judgments under ROC

(a) By –
(i) writ of seizure and sale
(ii) garnishee proceedings
(iii) charging order
(iv) appointment of receiver
(v) where O. 45 r. 5 ROC applies, an order of committal

(b) Meaning of writ of execution

• Malayan Nurses Union v Syarikat Perniagaan Cuepacs Bhd
[2011] 2 CLJ 280

5. Seizure and Sale

(a) Applicable both in respect of movables and immovable

• Form 88 ROC.
Civil Procedure 220

(b) Procedure for application and issue: O. 46 rr. 1 - 6 ROC

(i) where leave is required
(ii) where leave is not required/ or if required already obtained

(c) Seizure of movables subject to section 3 DA

(d) Execution by Sheriff

• For the appointment, powers and duties of Sheriff

o section 12 CJA1964
o O. 46 r. 14 - 26A ROC

(e) Immovable property

(i) Procedure: O. 47 rr. 6 & 7 ROC

(ii) Prohibitory order: issue, registration, service and duration of

validity (6 months - subject to renewal)
• section 334 N.L.C. - "an order made pursuant to an order
of court")
• Ban Hin Lee etc Bhd v Utama etc Bhd [1991] 2 MLJ 327
• Peh Wee Lee v Pendaftar Hakmilik Negeri Sembilan [2018]
1 AMR 266. Subordinate Court has no jurisdiction to
grant prohibitory order.

(iii) Sale of land

• O. 47 r. 7 ROC
• Summons for direction

(f) Seizure and sale of securities

• O. 47 rr. 8 & 9 ROC
Civil Procedure 221

6. Garnishee Proceedings (O. 49 ROC)

(a) Recovery by creditor of money "due or accruing due" to a judgment
debtor in the hands of a third party (garnishee).

(i) Must be able to calculate sum with precision

• HSBC Corp. v Goh Su Liat [1986] 2 MLJ 86).
• Cheong Heng Loong Goldsmiths (KL) Sdn Bhd v Chan Kim
Swi (Capital Insurance Bhd, Garnishee) [1997] 5 MLJ 191

(ii) Meaning of “any debt due or accruing due” includes a current or

deposit account with a bank or other financial institution,
whether or not the deposit has matured and notwithstanding any
restriction as to the mode of withdrawal
• O. 49 r. 1(3) ROC

(iii) A garnishee cannot attach a debt which had been equitably

assigned per COA RHB Bank Bhd v Malaysian International
Trading Corporation Sdn. Bhd. [2014] 9 CLJ 1086 (see FC’s
decision [2016] 2 CLJ 717)

(b) Garnishee must be within jurisdiction – O. 49 r. 1(1) ROC

(c) First stage: application for order to show cause (O. 49 r. 1(2) ROC)
(i) See Form 97/ affidavit Form 98
(ii) Procedure for application: O. 49 r. 2 ROC
(iii) Order will specify time and place for further consideration
(iv) Service of the order: O. 49 r. 3(1) ROC
(v) Effect of the order: O. 49 r. 3(2) ROC
Civil Procedure 222

(d) Further consideration

(i) Garnishee does not attend or does not dispute the debt
due - order absolute (O. 49 r. 4(1) ROC). See Form 99.

(ii) Garnishee disputes liability

• summary disposal
o Sykt Long Lian Trading v Roxy Malaysia [1978] 1 MLJ
221
o trial of issue

(e) Garnishee cannot set-off debt owing to him by garnisher (judgment

creditor)
• Sampson v Seaton Railway Co (1875) L.R. 10 Q.B. 28).

Garnishee can avail himself of a set-off against judgment debtor

• Saw Swan Kee v Sim Lim Finance [1985] 1 MLJ 221

(f) Claims of third persons

• O. 49 r. 6 ROC.
• Abdul Samad v Public Bank [1985] 1 MLJ 150 & Behn Meyer etc
v Agropharm etc [1988] 2 MLJ 636 (intervener cannot set aside
an order absolute (George J.)).

(g) Money payable by the Government to another.

• Under section 35, Government Proceedings Act, money can be

attached only with the consent of the Minister of Finance, in the
case of the Federal Government, or the Chief Minister in the case
of a State Government.
Civil Procedure 223

(h) Statutes forbidding attachment of debts

(i) Section 19 of the Pensions Act 1980, except for the purpose of
satisfying –
• a debt due to the Government; or
• an order of Court for the maintenance of the pensioner's
wife or former wife or minor child.

(ii) Section 142(1)(1) of the Merchant Shipping Ordinance 1952, as

regards wages due or accruing to a seaman or apprentice to the
sea service.

(iii) Section 11 of the Workmen's Compensation Act 1952 provides

that save as provided by the Act, no lump sum or half-monthly
payment payable under the Act shall in any way be capable of
being assigned or charged or liable to attachment or pass to any
person other than the workman by operation of law nor shall
any claim be set off against the same.

(iv) Section 35(1) of the Bank Simpanan Nasional Act 1974 whereby
no deposit in the Bank and no interest on any deposit shall be
attached, sequestered or levied upon for or in respect of any
debt or claim whatsoever, but upon notice of a claim under a
judgment of any court, the Bank may in its discretion retain in
the account
of a sum sufficient to answer the claim and to pay the amount
into Court on its order, but the Court can only make the order if
it is satisfied that the judgment-debtor has an account with the
bank for his own sole benefit.
Civil Procedure 224

(v) Section 3(1)(f)(ii) DA - wages of a Federal Officer/Railway

Officer; wages of a State Officer.

(vi) Section 15 Employees Provident Fund Act 1951.

7. Charging Orders (O. 50 ROC)

(a) Applies only to securities; see definition in O. 50 r. 2(3) ROC

(b) First stage: show cause order

(i) Procedure: O. 50 r. 3 ROC
(ii) Show cause order will specify time and place of further
consideration
(iii) Service: O. 50 r. 4 ROC
(iv) Effect of show cause order: O. 50 r. 5 ROC

(c) Further consideration: O. 50 r. 6 ROC

Order absolute

(d) Sale of securities charged

8. Equitable execution (O. 51 ROC)

(a) Execution by appointment of a receiver

• O. 30 ROC on appointment of receivers

(b) When applicable

(c) Factors that will be taken into consideration
(d) Procedure O. 30 r. 1 ROC – by notice of application either ex parte or
inter partes
(e) Security normally required
Civil Procedure 225

• O. 30 r. 2 ROC)

9. Judgment Debtor Summons (section 4 DA & O 74 ROC)

(a) Court may summon and examine judgment debtor

• section 4 (1) DA

(b) Orders the court may make

• section 4 (6) DA
• Enforcement of the court's order
• section 4 (7) DA

10. Writ of possession (O 45 r 3 ROC)

(a) Enforcement of a judgment or order for the giving of possession of
immovable property
• Leong Ah Weng v Neoh Thean Soo [1983] 2 M.L.J. 119
• Mas Anita Abdullah v Lew Wai Koung [2014] 7 CLJ 67
• Form 87

(b) Procedure
(c) See also section 17 Control of Rent Act 1966

11. Writ of Delivery (O 45 r 4 ROC)

(a) When applicable

• Form 86

(b) Procedure
Civil Procedure 226

12. Enforcement of Foreign Judgments

(a) Recognition and enforcement at Common Law

(b) Reciprocal Enforcement of Judgment Act, 1958

• "The Recognition & The Enforcement of Foreign Judgments" by L.

Marasinghe [1985] JMCL 197-223
• Hong Leong Finance v Liow Hock Seng (1996) 1 CLJ 462
• Santong Trading Pte Ltd v HJ Industries Sdn Bhd (1996) 3 CLJ 954
• The Kah Wah Bank Ltd v Low Chung Song & Ors [1998] 1 CLJ 81
• Re Raju Jayaraman Kerpaya, Ex P Associated Asian Securities
(Pte) Ltd [1999] 5 CLJ 23
• Abdul Latif Bin Mohamed Ibrahim v International Factors Leasing
Pte Ltd [2001] 2 MLJ 369

13. Enforcement of Orders of Director General of Labour made under the

Employment Act 1955

• O. 86A ROC – Certificate of order and Form 192

14. Bankruptcy Proceedings

• See Subject Outline for Professional Practice.
• Ambank Bhd v Tan Tem Son [2013] 3 CLJ 317, FC
• In Dr Shamsul Bahar Abdul Kadir v RHB Bank Bhd [2015] 4 CLJ 561, the
Federal Court ruled that a judgment creditor who commences bankruptcy
proceedings after more than six years had lapsed from the date of
judgment must obtain the prior leave of the court pursuant to O. 46 r. 2
of the RHC.
• Amfraser Securities Pte Ltd v Poh Gaik Lye [2016] 6 CLJ 637, FC
15. Winding up of Companies
• Division 7 Subdivision 7, Section 465 Companies Act 2016
 Civil Procedure 227

• Fortuna Injunction
o Pacific & Orient Insurance Co. Bhd. v Muniammah Muniandy
[2011] 1 CLJ 947

16. Stay of Judgment

• Kosma Palm Oil Mill Sdn Bhd & Ors v Koperasi Serbausaha Makmur Bhd
[2004] 1 MLJ 257
• Leong Poh Shee v Ng Kat Chong [1966] 1 MLJ 86

XXXIII: APPEALS

1. Appeals are creatures of statutes

• Auto Dunia Sdn Bhd v Wong Sai Fatt & Ors [1995] 2 MLJ 549
• Megat Najmuddin bin Dato' Seri (Dr.) Megat Khas v Bumiputra (M) Bhd
[2002] 1 MLJ 385

2. Appeals from the subordinate courts

(a) See Sections 27 & 28 CJA. Section 28 reads:

“(1) Subject to any other written law, no appeal shall lie to the High
Court from a decision of a subordinate court in any civil cause or
matter where the amount in dispute or the value of the subject-matter
is ten thousand ringgit or less except on a question of law.
(2) An appeal shall lie from any decision of a subordinate court in
any proceedings relating to maintenance of wives or children,
irrespective of the amount involved”.
• Kannaya & Anor v Teh Swee Eng [1994] 1 MLJ 508 (no question
of law involved: appeal dismissed)
• Neoh Choo Ee & Co Sdn Bhd v Valasamy [1997] 2 CLJ 906
Civil Procedure 228

• Tan Lee Hong v Letchemee Varathen (as representative of the

Estate of Varathen Govindan Deceased) [1994] 2 CLJ 570

(b) Commencement of the appeal

• 55 r. 2 ROC
• Lee Lan v Lim Yoon Loy & Ors [1991] 3 MLJ 419 (SC).

(c) Appeal documents and procedure

• O. 55 rr. 3 & 4 ROC

• See O. 55 r. 5 ROC - in respect of appeal to Judge in chambers
from any decision other than a decision made after trial.
o Ooi Chew Seng v Ultratech Sdn Bhd & Anor [1997] 2 MLJ
344
o Mat Yassin bin Dollah v Ibrahim bin Hussin & Anor [1997]
2 MLJ 681
o Kwong Yik Bank Bhd v Ansonia Management Associates
Sdn Bhd [1999] 1 CLJ 337
o Neoh Tan Lee Hong v Letchemee Varathen as
representative of the estate of Varathen Govindan
Deceased) [1994] 2 CLJ 570
o Elayachee v Woo Sin Tip [1991] 3 MLJ 108
Civil Procedure 229

o Batangkali Estate Sdn Bhd v Romani bte Abdul Aziz

& Anor [1993] 2 MLJ 267
o Lim Hee Chuan v Toh Phaik Har [1949] MLJ 92
o Lam Soon Cannery & Co v Hooper & Company
[1965] 1 MLJ 148
o Cosway (M) Sdn Bhd & Anor v Gan Poh Im [2000]
AMR 4168
o Cosway Choo Ee & Co Sdn Bhd v Valasamy [1997]
2 CLJ 906
o Cosway v Gan Poh Im [2006] 1 MLJ 568 (CA)

(d) Restriction on fresh evidence

• O. 55 r. 7 ROC

• New evidence not available at the hearing - fresh evidence

would have been likely to have had a determining
influence upon the decision of Subordinate Court.
o Ladd v Marshall [1954] 3 AER 745 [1954] 1 WLR
1489
o Nor Faiz Azli Muhammed v Abdullah Yaman [2001]
4 CLJ 371
o Tetuan Tanjung Teras Sdn Bhd & Anor v Tetuan
Syn Tai Hung Trading Sdn Bhd [2003] 4 MLJ 465

(e) Cross appeal

• A notice of cross appeal is only confined to matters
appealed in the notice of appeal
o Kahukishi Kaisha Ngu v Leisure Farm Corporation
Sdn. Bhd. [2016] 5 AMR 693, FC

(f) Further appeal

• sections 67(1) and 68(1) CJA
Civil Procedure 230

3. Appeals from Registrar of the High Court

(a) To judge in Chambers

• O. 56 r. 1 ROC
• O. 56 r. 1(3) ROC - notice must be issued within 14 days
after the judgment, order or decision.

(b) Commencement of the appeal

• Form 114
• Time limits

(c) Further appeal – sections 67 (1) and 68 (1) CJA

• Milik Perusahaan Sdn Bhd & Anor v Kembang Masyur Sdn
Bhd [2003] 1 MLJ 6

4. Appeals to the High Court under written law

• Subject to the procedure specified in the relevant statute the

appeal must be brought by way of originating summons in
accordance with O. 55A ROC.
o Syarikat Maltaco Sdn. Bhd. v Eow Teh Yu & Ors [1985] 2
MLJ 19.

• An appeal to the High Court from the decision of the Registrar

under s. 28 of the Trade Marks Act 1976 ended at the Court of
Appeal and no further appeal lay to the Federal Court. See
Merck Kgaa v Leno Marketing (M) Sdn Bhd; Registrar of Trade
Marks (Interested Party) [2018] 6 CLJ 167

5. Appeals from the High Court

(a) Appeal as of right and appeal with leave

Civil Procedure 231

Section 68(1) of the CJA 1964:

“68. (1) No appeal shall be brought to the Court of Appeal in

any of the following cases:

(a) when the amount or value of the subject-matter of the

claim (exclusive of interest) is less than two hundred and
fifty thousand ringgit, except with the leave of the Court of
Appeal;”
• Teresa Manohary a/p Thairiyam & Anor v Tan Ah Lek
[1996] 1 CLJ 149
• Harcharan Singh Sohan Singh v Ranjit Kaur S Gean
Singh [2010] 3 CLJ 29
• See Federal Court decision in [2011] 3 CLJ 593.

(b) where the judgment or order is made by consent of parties;

(c) here the judgment or order relates to costs only which by

law are left to the discretion of the Court, except with the
leave of the Court of Appeal; and

(d) where, by any written law for the time being in force, the
judgment or order of the High Court is expressly declared
to be final.
...
(3) No appeal shall lie from a decision of a Judge in Chambers
in a summary way on an interpleader summons, where
the facts are not in dispute, except by leave of the Court
of Appeal, but an appeal shall lie from a judgment given in
court on the trial of an interpleader issue.”
• United Oriental Assurance Sdn Bhd v Penang
Medical Center Sdn Bhd [1999] 1 MLJ 542.
Civil Procedure 232

(b) See section 3 CJA as amended by the Courts of Judicature

(Amendment) Act 1998.

(c) Procedure for obtaining leave.

(d) No appeal to the Federal Court if the Court of Appeal refuses

leave:
• Auto Dunia Sdn Bhd v Wong Sai Fatt & Ors [1995] 2 MLJ
549.

(e) The limit for appeal: extension of time

• Tan Siew Peng v OCBC Bank (M) Bhd [1998] 2 MLJ 420

(f) Objection on Notice of Appeal being defective

• Deepak Jaikishan v A. Santamil Selvi Alau Malay [2017] 5
CLJ 641

(g) Memorandum of Appeal

• Owners of the Ship or Vessel “SASACOM 1” v Bank
Pembangunan Malaysia Bhd [2015] 1 CLJ 392 - must be
signed and dated
• Extra Excel Malaysia Sdn. Bhd. v Chu Nyuk Tai [2014] 9
CLJ 599
• Bar Malaysia v Neasarani T Singara Thevar [2015] 8 CLJ
634

(h) Cross-appeal – r. 8(1) of Rules of the Court of Appeal 1994

• Kabushiki Kaisha Ngu v. Leisure Farm Corporation Sdn
Bhd [2016] 8 CLJ 149, FC

6. Appeal does not operate as a stay of execution

• Section 73 of the CJA

Civil Procedure 233

• Wu shu Chen (sole executrix of the estate of Goh Keng How,

deceased) v Raja Zainal Abidin bin Raja Husin & Anor (1996) 2
CLJ 353.
• Application for a stay: procedure.
• Applicant must show special circumstances.
o Halsbury Vol. 17 para 455
o The Yih Shen [1986] 2 MLJ 65
o Syarikat Berpakat v Lim Kai Kok [1983] 1 MLJ 406
o Re Kong Thai Sawmill [1976] 1 MLJ 131
o Chellapa a/l K Kalimuthu (suing as public officer of Sri
Maha Mariamman Temple, Hicom, Shah Alam, Selangor) v
Sime UEP Properties Bhd [1998] 1 MLJ 20
o Hong Leong Finance v Hon Hoi Weng [1987] 2 MLJ 377
o Che Wan Development Sdn Bhd v CCB Bhd [1989] 3 MLJ
40
o Wilson v Church (No. 2) [1879] 12 Ch. D. 454
o Lee Kuan Yew v Jeyaretnam [1991] 1 MLJ 85 (strong
grounds for appeal insufficient)
o See also "Stay of Execution Pending Appeal - Special
Circumstances v Probability of Appeal Being Allowed" by
Zainur Zakaria [1990] 1 MLJ lxviii.
o Kerajaan Malaysia v Jasanusa Sdn Bhd [1995] 2 MLJ 105
o Kerajaan Malaysia v Dato' Hj Ghani Gilong [1995] 2 MLJ
119
o Teow Guan v Kian Joo Holdings Sdn Bhd [1995] 3 MLJ
598; the word "proceedings" appearing in Section 44 of
the C.J.A. 1964 must refer to the appeal before the Court
of Appeal (see Taipan Focus Sdn. Bhd. v Tunku Mudzaffar
Tunku Mustapha [2011] 1 CLJ 133)
o Tropiland Sdn Bhd v DCB Bank Bhd & Ors [2000] 2 MLJ
65
o Ming Ann Holdings Sdn Bhd v Danaharta Urus Sdn Bhd
[2002] 3 MLJ 49
Civil Procedure 234

o Kosma Palm Oil Mill Sdn Bhd & Ors v Koperasi Serbausaha
Makmur Bhd [2004] 1 MLJ 257
o Taipan Focus Sdn Bhd v Tunku Mudzaffar Tunku
Mustapha [2011] 1 CLJ 133

7. Hearing of appeals before Court of Appeal (section 69 CLA)

Rules of the Court of Appeal (subject to Rules of Court of
Appeal (Amendments) 2018 to take effect from 1.3.2018)

(a) By way of re-hearing; has all the powers of High Court

• Dato' Tan Chin Woh v Dato' Yalumallai v Muthusamy
[2016] 8 CLJ 293, FC :
“the power of the Court of Appeal is only to draw
inferences of facts and to make an order which ought to
have been made by the High Court. The power is
essentially limited to making of inferences of facts from
the facts as found by the High Court”

(b) Discretionary power to receive further evidence

• Asiatic Development Berhad & Anor v Balachandar
Palanysamy [1996] 1 CLJ 725

(c) When evidence may be given without leave

• section 69(2) CLA

(d) When evidence may be given only with leave

• section 69(3) CLA

(e) Power to order new trial

• section 71(1) CLA

(f) When new trial shall not be granted

• section 71(2) CLA
Civil Procedure 235

(g) Immaterial errors

• section 72 CLA

(h) Raising a point not raised before trial judge

• Lim Geak Liang v East West UMI Insurance Bhd [1994] 4
CLJ 405
• Tan Tek Seng @ Tan Chee Meng v Suruhanjaya
Perkhidmatan Pendidikan & Anor [1996] 2 CLJ 771
• Subramanyah AJ Kamppiah v Bank Negara Malaysia
[2011] 2 CLJ 178: “To justify the new point to be raised
on appeal, it must be shown that the new point comes
within the established exceptions, i.e. jurisdiction, illegality
or where, if the evidence on which the appellate court is
asked to decide, if investigated, would fully support the
new plea.”
• Koperasi Pegawai Pegawai Kerajaan Negeri Perlis Bhd v
Wan Kiah @ Wan Noriah bt. Mahat [2014] 1 AMR 104:
when defence of illegality can be raised for the first time
during an appeal interfering with a part of the judgment
of the learned judge not forming the subject of an appeal
in determining the appeal before it
• Datuk M Kayveas v See Hong Chen & Sons Sdn. Bhd.
[2013] 5 CLJ 949
• Dato' Tan Chin Woh v Dato' Yalumallai v Muthusamy
[2016] 8 CLJ 293
• Pengusaha, Tempat Tahanan Perlindungan Kamunting,
Taiping & ors v Badrul Zaman Ps Md Zakariah [2018] 8
CLJ 273. Rule 18(2) of the Rules of the Court of
Aappeal allows a new point to be raised by the parties for
the first time before it where the interests of justice so
require
Civil Procedure 236

(i) Discretion to cure defects

• Capital Insurance Bhd v Kasim bin Mohd Ali [2000] 1 MLJ
193

(j) Interference with findings of fact and findings of credibility by

trial judge.
• China Airlines Ltd v Maltran Air Corp Sdn Bhd & Anor
[1996] 3 CLJ 163
• Renal Link (KL) Sdn Bhd v Dato' Harnam Singh [1997] 2
MLJ 373
• Salim bin Ismail & Ors v Lebbey Sdn Bhd (No. 1) [1997] 2
MLJ 1
• Tneu Seng Bee & Ors v Limayan Plantation Sdn Bhd & Ors
and another appeal [1999] 1 MLJ 449
• Asia General Equipment and Supplies Sdn Bhd v Mohd
Sari Datuk Hj. Nuar [2011] 8 CLJ 749
• Conlay Construction Sdn. Bhd. v Perembun (M) Sdn. Bhd.
FC [2013] 9 CLJ 828
• Aseambankers Malaysia Bhd v Shencourt Sdn Bhd [2014]
2 CLJ
• MMC Oil & Gas Engineering Sdn Bhd v Tan Hock Kwee &
Sons Sdn Bhd [2016] 2 MLJ 428
• Kerajaan Malaysia v Global Upline Sdn Bhd [2017] 1 MLJ
170
• Mohd Syamsul Md Yusof v Elias Idris [2019] 7 CLJ 560

8. Power of the Court of Appeal to review its own decision

• Dee Bee Yoke v Nick Abu Dasuki Hj Abu Hassan [2017] 1 CLJ 18

9. Appeal from the Court of Appeal to the Federal Court

Rules of the Federal Court 1995 (subject to the Rules of the
Federal Court (Amendments) 2018 to take effect from
1.3.2018)
Civil Procedure 237

(a) Conditions of appeal

(i) Section 96 CJA as amended by the Court of Judicature

(Amendment) Act 1998 (w.e.f. 1 August 98):

“96. Conditions of appeal

Subject to any rules regulating the proceedings of the

Federal Court in respect of appeals from the Court of
Appeal, an appeal shall lie from the Court of Appeal to the
Federal Court with the leave of the Federal Court
(a) from any judgment or order 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 involving a question of general principle
decided for the first time or a question of
importance upon which further argument and a
decision of the Federal court would be to public
advantage; or
(b) from any decision as to the effect of any provision
of the Constitution including the validity of any
written law relating to any such provision.”
• Datuk Syed Kechik bin Syed Mohamad & Anor
v The Board of Trustees of the Sabah
Foundation & Ors and another application
[1999] 1 MLJ 257
• Terengganu Forest Products Sdn. Bhd. v
COSCO Container Lines Co Ltd [2011] 1 CLJ
51 - principles on application for leave to
appeal to Federal Court
• Capital Insurance Bhd v Aishah bte Abdul
Manap & Anor [2000] 4 MLJ 65
• Koperasi Jimat Cermat dan Pinjaman Keretapi
Civil Procedure 238

Bhd v Kumar Gurusamy [2011] 3 CLJ 241

• Yong Teng Hing v Walton International Ltd,
Pendaftar Cap Dagang, Malaysia (Interested
party) [2011] 7 CLJ 401
• Tio Chee Hing v United Overseas Bank
(Malaysia) Bhd [2013] 2 CLJ 910 in respect of
“the exercise of original jurisdiction

(b) Leave to appeal

(i) Section 97 CJA 1964 reads:

“97. Leave to appeal

(1) An application under section 96 for leave to

appeal to the Federal Court shall be made to the
Federal Court within one month from the date on
which the decision appealed against was given, or
within such further time as may be allowed by the
Court.
(2) Where the judgment appealed against requires
the appellant to pay money or perform a duty,
the Federal Court shall have power, when
granting leave to appeal, either to direct that the
judgment shall be carried into execution or that
the execution thereof shall be suspended pending
the appeal, as to the Court shall seem just; and in
case the Court shall direct the judgment to be
carried into execution, the person in whose favour
it was given shall, before the execution thereof,
enter into good and sufficient security to the
satisfaction of that Court for the due performance
Civil Procedure 239

of any order as the Federal Court may make in

order to give effect thereto.”

(iii) Note: Time limit for appeal, extension of time and powers
regarding execution.
o Lam Kong Co Ltd v Thong Guan Co Pte Ltd [2000]
4 MLJ 1
o Chong Wooi Leong & Ors v Lebbey Sdn Bhd [1998]
2 MLJ 644
o Allied Capital Sdn Bhd v Mohd Latiff Bin Shah Mohd
and another application [2001] 2 MLJ 305
o Adorna Properties Sdn Bhd v Kob Chai [2006] 1
MLJ 417
o Simpang Empat Plantation Sdn Bhd v Ali bin Tan Sri
Abdul Kadir & Ors [2006] 1 MLJ 193
o Metramac v Fauziah Holdings [2006] 5 CLJ 177
(FC)
o Fawziah Holdings v Metramac [2006] 1 CLJ 197
o Terengganu Forest Products Sdn Bhd v COSCO
Container Lines Co Ltd [2011] 1 CLJ 51
(iv) An appellant who has obtained leave to appeal must be
prepared to defend the grant of leave at any subsequent
stage
o UOL Credit Sdn. Bhd. v Dato' Vijay Kumar
Natarajan [2010] 1 CLJ 557
o Sri Kelangkota-Rakan Engineering JV Sdn Bhd v
Arab Malaysian Prima Realty Sdn Bhd & Ors [2003]
3 CLJ 349)

(b) Incidental directions and interim orders

• section 80 CJA
 Civil Procedure 240

(c) Orders; costs

• section 99 CJA

(d) New evidence

(e) Raising question of law at the leave application

• Dato’ Seri Anwar Ibrahim v Tun Dr. Mahathir Mohamad
[2011] 1 CLJ 1

(f) New trial

(i) Power to order (section 100 (1) CJA)
(ii) When shall not be granted (section 100 (2) CJA)
(iii) Immaterial errors (section 100 (3) CJA)

(g) Appeal not to operate as a stay of execution (section 102 CJA).

(i) section 97 CJA
(ii) section 80 CJA - Takako Sakao v Ng Pek Yuen & Anor (No.
3) [2010] 1 CLJ 429

(h) Question for appeal

• Parties must exercise extreme care and caution in drafting

questions for appeal under section 96(a) of the Courts of
Judicature Act 1964. If the questions did not have the
effect of affecting the outcome of appeal, the court might
decline to answer them.
o Sabah Forest Industries Sdn Bhd v UNP Plywood
Sdn Bhd [2009] 6CLJ 515

(i) Raising issues other than for which leave was granted

• Rule 57(2) Rules of the Federal Court 1995 - Federal Court

has power and the discretion to allow the appellant to
Civil Procedure 241

raise an issue which falls outside the scope of the grounds

for which leave was granted.
• Menteri Sumber Manusia v Association of Bank Officers,
Peninsular Malaysia [1999] 2 AMR 1837
• Sababumi (Sandakan) Sdn Bhd v Datuk Yap Pak Leong
[1998] AMR 2901

(j) Inherent power of the Federal Court

• Rule 137 Rules of the Federal Court 1995 - Power to hear
any application or to make any order to prevent injustice.
o Chia Yan Teck v Ng Swee Keat [2001] 4 MLJ 1
o Megat Najmuddin bin Dato' Seri (Dr.) Megat Khas v
Bank Bumiputra (M) Bhd [2002] 1 MLJ 385
o Dato Seri Anwar Ibrahim v PP [2010] 7 CLJ 397
o Harcharan Singh Piara Singh v PP [2011] 6 CLJ 625
o Sharikat Galian Razak Sdn. Bhd. v Magical Capital
Sdn. Bhd. FC [2013] 9 CLJ 141 (r. 137 is not
applicable to review the Court of Appeal’s decision)
o Dato’ See Teow Chuan v Ooi Woon Chee FC [2013]
4 CLJ 901 (it is not to consider if the Federal Court
had acted correctly or not as it did because that
would tantamount to going into the merit of the
case)
o Halaman Perdana Sdn. Bhd. v Tasik Bayangan Sdn.
Bhd. [2014] 3 CLJ 681 FC (The jurisdiction of this
court under r. 137 is limited to reviewing its own
decision. The basis to do so is also very stringent.
It may only allow a review of its own decision in
order to prevent injustice or to prevent an abuse of
the process of the court)
o Merck Sharp & Dohme Group v Hovid Bhd [2019] 9
CLJ 1 (The Federal Court is vested with the power
to depart from its own previous decision, but such
Civil Procedure 242

power must be used sparingly. It would be prudent

to exercise such power when a former decision
which is sought to be overruled is wrong, uncertain,
unjust, outmoded or obsolete in the modern
conditions)

ooOoo
 CRIMINAL
PROCEDURE

© All rights reserved 2020

No part of this outline may be reproduced without the permission of the Qualifying Board, Malaysia
Criminal Procedure 243

PREFACE

A. INTRODUCTION

1. Essentially the subject focus on the process of administration of criminal justice

in Malaysia.

2. The subject outline contains topical issues on criminal procedure. It covers the
pre-trial stage of arrest of a suspect to a crime, trial stage if a criminal
prosecution is instituted against him as the accused person and the sentencing
stage which deals with the sentence to be meted out on him upon conviction
by a court of law and other incidental orders a court would be able to make
according to law, such as disposal of exhibits etc. The appeal stage of a
criminal proceeding is equally important as either party to a criminal
proceeding may lodge an appeal to a superior court. The other avenue
available to a party to a criminal proceeding is by way of criminal revision to
the High Court which is also emphasized.

3. The contents of the subject outline are only a guide to CLP candidates. They
are expected to explore further by way independent study to understand and
familiarize themselves on the various issues of criminal procedure. A thorough
understanding of the various provisions of the Criminal Procedure Code (Act
593) as well as decisions handed down by the courts on issues of criminal
procedure is a must. Ultimately candidates are expected to have a
comprehensive and practical understanding of the subject matter before
pursuing the CLP examination.

4. For the CLP examination, candidates would essentially be tested on

those practical issues of criminal procedure. This would entail inter
alia drafting a charge, letter of representation and cause papers
which are relevant for a criminal trial, appeal or revision.

5. The primary statute used for this subject is the Criminal Procedure Code (Act
593). Candidates are likewise required to have a good understanding of the
relevant provisions on criminal procedure in other penal statutes as referred to
below. In this outline, unless otherwise stated, all references to
sections are references to the provisions of the Criminal Procedure
Code (CPC).
Criminal Procedure 244

B. SALIENT STATUTES

1. Federal Constitution
2. Criminal Procedure Code (Act 593)
3. Courts of Judicature Act 1964 (Act 91)
4. Subordinate Courts Act 1948 (Act 92)
5. Dangerous Drugs Act 1952 (Act 234)
6. Dangerous Drugs (Forfeiture of Property) Act, 1988 (Act 340)
7. Firearms (Increased Penalties) Act 1971 (Act 37)
8. Police Act 1967 (Act 344)
9. Arms Act 1960 (Act 206)
10. Kidnapping Act 1961 (Act 365)
11. Child Act 2001 (Act 611)
12. Malaysian Anti-Corruption Commission Act 2009 (Act 694)

C. TEXTBOOKS

1. Srimurugan Alagan – Criminal Procedure Code: A Commentary, (June 2016), Sweet

& Maxwell Malaysia

2. Dato’ Baljit Singh Sidhu - Criminal Litigation Process, (2015), Third Edition, Sweet &
Maxwell.

3. Chong Fook Lee, Che Audah Hassan, Habibah Kiprawi, Mimi Sintia Haji Mohd
Bajury - The Process of Criminal Justice, LexisNexis, 2015

4. Datuk Dr. Hj. Hamid Sultan bin Abu Backer – Janab’s Key to Criminal
Procedure, 3rd Edition (Kuala Lumpur: Janab (M) Sdn Bhd, 2014)

5. Mallal's Criminal Procedure, Seventh Edition, LexisNexis 2012

6. Teo Say Eng – Pendakwaan Jenayah di Mahkamah Rendah (Edisi Kedua)

(2008) LexisNexis
Criminal Procedure 245

7. Y.A. Dato' Ho Mooi Ching, "Sentencing in Malaysia", Sweet & Maxwell Asia,
2007

8. Francis Ng Aik Guan – Criminal Procedure CLP Series 2nd Mallal's Criminal
Procedure Code, Sixth Edition, MLJ 2001

9. Teo Say Eng – Handbook on Criminal Prosecution In the Subordinate Courts

(2nd. Ed.) (2004), LexisNexis

10. Mimi Kamariah Majid – Criminal Procedure in Malaysia (3rd Edition) (1999)
University of Malaya Press

11. Mimi Kamariah Majid & Lee Oi Kuan, Malaysia Law on Bail (1986), Malaysian
Law Publishers, Kuala Lumpur

12. Farah Nini Dasuki, Talat Mahmood Abdul Rashid & Saw Tiong Guan, Casebook
on Criminal Procedure in Malaysia: Jurisdiction of Courts and Pre-Trial Matters.

D. EXAMINATION

2. There will be SEVEN (7) questions in the examination paper.

3. Candidates are required to answer ONE (1) COMPULSORY question

and THREE (3) out of SIX (6) questions. A question may be divided into
several parts and may deal with more than one (1) area of criminal procedure.

4. Candidates are allowed to refer to the Criminal Procedure Code, which will
be provided during the examination. Candidates are not allowed to bring into
the examination hall their own copy of the said statute or any other statutes
not specified here.

5. Take note of the latest amendments to the Criminal Procedure Code.

ooOoo
Criminal Procedure 246

I. CRIMINAL PROCEDURE – GENERAL

1. Adversarial system of a criminal trial as opposed to an Inquisitorial system of

criminal trial practiced in other jurisdictions.

2. Application of the Criminal Prodecure Code (‘CPC’) and other penal statutes
governing criminal procedure in Malaysia.

3. Relationship of the CPC with other penal statutes.

4. The Latin maxim of interpretation, generalia specialibus non derogant: the

provisions of a general statute must yield to those of a special one.

5. Section 3 and 5 of the CPC.

6. Importance of the First Schedule of the CPC. Take note of the latest
amendment to the First Schedule.

7. Some common terminologies used in the process of administration of criminal

justice.

• Examples are inter alia, accomplice, adjectival law, admissions, affidavit,

alibi, appeal, appellant, arrest, bench, bona fide, causa causans, charge,
circumstantial evidence, clear days, cognizance, guilty, habeas corpus,
hearsay, hostile witness, in camera, in jeopardy, judgment, judicial notice,
jurisdiction, jurisprudence, mens rea and actus reus, precedent, medical
jurisprudence (forensics), presumption, proof, prima facie case,
respondent, status quo, sub judice, subpoena, substantive law, testimony,
trial, transcript, venue, void.

• Some common principles applicable in the process of administration of

criminal justice. The principles are:

o An accused is presumed innocent until proven guilty;

o Any doubt raised in a criminal trial is resolved in favor of the
accused;
Criminal Procedure 247

o A criminal court does not deal with trivialities;

▪ Any error, omission, or irregularity which has come about
shall not vitiate a criminal trial unless and until it occasions a
failure of justice which has the effect of prejudice on an
accused and if that happens there would be an acquittal;

• Knowledge of some salient case authorities decided by the apex court is

essential. These cases are referred to, sometimes as the leading criminal
trials in the country. It is so, as the judgment in these cases hinges on a
myriad of issues relevant to criminal procedure specifically and the
process of administration of criminal justice generally. The cases are inter
alia:

o PP v Datuk Hj Harun bin Hj Idris & Ors v PP (1978) 1 MLJ 240 (FC)
o Dato Mokhtar bin Hashim & Anor v PP (1983) 2 MLJ 232 (FC)
o PP v Dato Seri Anwar bin Ibrahim (DSAI) (No 3) (1999) 2 MLJ 1
(HC and confirmed by the CA and FC)
o Dato Seri Anwar Ibrahim v PP & Another Appeal (2015) 2 CLJ 145
(FC)

II. COURTS

1. General

(a) Part II CPC

(b) Chapter II CPC - Criminal courts in general

(c) Section 6 CPC – Constitution of courts for the administration of criminal

justice in Malaysia.

(d) Section 7 CPC – Courts to be open to which the public generally may have
access. When is public excluded?
Criminal Procedure 248

(e) Section 101 of the Subordinate Courts Act 1948 (Act 92)

(f) Section 15 of the Courts of Judicature Act 1964 (Act 91)

• Lee Boon Tuan v PP (1960) MLJ 179
• AG v Leveller Magazine (1979) AC 440

(g) Section 9 CPC – Criminal Jurisdiction of Magistrates

2. Hierachy

(a) Article 121 Federal Constitution

(b) Courts of Judicature Act 1964 (Act 91) (‘CJA’)

• High Court of Malaya

• High Court of Sabah and Sarawak
• Court of Appeal
• Federal Court

(c) Subordinate Courts Act (1948) (Act 92) (‘SCA’)

• Section 3(2) SCA
• Magistrates' Court
• Sessions Court
(Take note of Subordinate Courts Act (Extension) Order 1980 (P.U.
(A) 357) with effect from 1.6.1981)

(d) Child Act 2001 (Act 611) (‘CA’)

• PP lwn Mohd Turmizy Mahdzir & Anor (2007) 9 CLJ 187

• PP lwn KM (A Child) & Anor (2010) 9 CLJ 605
• PP lwn Kok Wah Kuan (2008) 1 MLJ 1
Criminal Procedure 249

3. Jurisdiction

(a) Second Class Magistrate’s Court

(i) Trial Jurisdiction: section 88 SCA

(ii) Sentencing Jurisdiction: section 89 SCA

(b) First Class Magistrate's court

(i) Trial Jurisdiction:
• Section 85 SCA;
• Lee Heng Kooi v PP (1993) 1 MLJ 69
• Nadarajah v PP (2000) 4 MLJ 373

(ii) Sentencing Jurisdiction:

• Section 87 SCA;
• proviso to section 87:
o Cheong Ah Cheow v PP (1985) 2 MLJ 257

• Section 87(2) SCA:

o PP v Tengku Hitam (1962) MLJ 414
o Abdul Wahab v PP (1970) 2 MLJ 203
o PP v Zeenex (Malaysia) Sdn Bhd (1995) 2 CLJ 403 (HC)
o PP v Govindran a/l Chinden Nair (1998) 2 MLJ 181

(iii) Third Schedule to SCA 1948 and section 99A of SCA;

• Dunlop Malaysian Industries Bhd v PP (1985) 1 MLJ 313

(iv) Reference of constitutional question by subordinate court

• section 30(1) CJA
Criminal Procedure 250

(c) Sessions Court

(i) Trial Jurisdiction: section 63 SCA

• Ng Kook Kin v PP (1995) 3 CLJ 905 (HC)

(ii) Sentencing Jurisdiction: section 64 SCA

• Savrimuthu lwn PP (1987) 2 MLJ 173

(iii) Reference of constitutional question by subordinate - section 30(1)

CJA

(d) High Court

(i) Trial Jurisdiction: section 22(1) CJA

(ii) Sentencing Jurisdiction: section 22(2) CJA

(iii) Appellate Jurisdiction: section 26 CJA

(iv) Revisionary Jurisdiction: sections 31 and 35 CJA

(v) The High Court Judge may consider a question as to the effect of a
provision of the Constitution which is necessary for the
determination of a criminal proceedings once record of proceedings
is transmitted to the high court it by a subordinate court:
• Section 30 (1), (2) CJA
• Repco Holdings Bhd v PP (1997) 3 MLJ 681

(vi) Inherent Jurisdiction:

• Karpal Singh & Anor v PP (1991) 2 MLJ 544
• Chew Wai Keong v PP (2010) 6 MLJ 84
Criminal Procedure 251

• Dato’ Seri Anwar Ibrahim v PP (2010) 7 CLJ 397

(e) Court of Appeal

(i) Appellate Jurisdiction: section 50 CJA

(ii) Powers of the court: section 60 CJA

• Saad Abas & Anor v PP (1998) 4 CLJ 575 (CA)
• PP v Pasupathy Kanagasaby (2001) 2 CLJ 753 (CA)
• PP v Mahathir Muhammad (2013) 2 CLJ 50 (CA)

(f) Federal Court

(i) Appellate Jurisdiction in criminal matters: sections 86 and 87 CJA

• Siow Chung Peng v PP (2014) 6 CLJ 423 (FC)
• Ahmad Zubir Hj Murshid v PP (2014) 9 CLJ 289 (FC)
• Munawar Ahmad Anees v PP (2010) 3 MLJ 285

(ii) Determination of reference of constitutional question referred to

Federal Court it by the High Court: section 84 CJA

(iii) Rule 137 of Rules of Federal Court

• Asean Security Papermills Sdn Bhd v Mitsui Sumitomo
Insurance Bhd (2008) 2 MLJ 137
• Chu Tak Fai v PP (2007) 1 MLJ 201

4. Local Jurisdiction of court and its exceptions: sections 121 - 127,

127A, 417, 418A CPC

(a) Extra territorial jurisdiction:

• Section 4 of the Penal Code
• Chapter VI, VIA and VIB of the Penal Code
• Section 494 of the Penal Code
Criminal Procedure 252

• Section 66 of the Malaysian Anti–Corruption Commission Act 2009

(Act 694) (MAAC Act)
• Extra Territorial Offences Act 1976
• Offences against the Official Secrets Act 1972 (Act 88) and Sedition
Act 1948 (Act 15)

(b) Local Jurisdiction:

• Section 121 CPC
• PP v Tengku Abdul Muiz Shah & Ors. (1983) 1 MLJ 422
• Lt. Kdr. Balakrishnan v Menteri Pertahanan Malaysia (1994) 2 AMR
20; 1045

(c) Exceptions
• PP v Nai Prasit (1961) MLJ 62
• Lee Szu Yin v PP (1962) MLJ 49
• PP v Yong Nam Seng & Anor (1964) MLJ 85
• DPP v Doot (1973) 1 All ER 807
• PP v Loh Ah Hoo (1974) 2 MLJ 216
• Oh Keng Seng v PP (1974) 2 MLJ 48
• Dato’ Mokhtar Hashim v PP (1983) 2 MLJ 232
• PP v Rajappan (1985) 2 MLJ 231 HC; (1986) 1 MLJ 152 (SC)
• Abdul Ghani bin Ali v PP (and Another Appeal) (2001) 4 AMR 4317
(FC)
• PP v Mohd Amin bin Mohd Razali & Ors (2003) 4 MLJ 129

III. ARREST

Statutes:
• Article 5 (1) Federal Constitution
• Sections 15-33 CPC
Criminal Procedure 253

1. Distinction between 'seizable offence and non-seizable offence' and

'summons case and warrant case'

2. Types of Arrest
(a) Without warrant: sections 23, 24, 25, 26, 27, 28, 30 and 31 CPC and
section 110 CA
(b) With warrant: sections 38 - 43 CPC

3. Categories of persons who may arrest without a warrant:

(a) Police Officer/Penghulu: sections 23 and 24 CPC

(i) Reasonable complaint:

• John Lewis v Tims (1952) 1 A11 ER 1203
• Tan Kay Teck & Anor v AG (1957) MLJ 237

(ii) Reasonable suspicion

• Tan Eng Hoe v AG (1933) MLJ 151
• Dallison v Caffery (1964) 2 AER 610
• Sha’aban and others v Chong Fook Kam (1967) 2 MLJ 54
• Sha’aban and others v Chong Fook Kam (1968) 2 MLJ 50
• Sha’aban and others v Chong Fook Kam (1969) 2 MLJ 219
• Mahmood v Govt of Malaysia (1974) 1 MLJ 103

(iii) Credible information

• Charu Chandra (1917) AIR Cal 253
• Roshal Lal Goel v Supt Central Jail Lashkar (1950) AIR MB 83
• Hashim bin Saud v Yahaya bin Hashim and Anor (1977) 1 MLJ
259
• Zainal Kuning v Chan Sin Muan (1996) 3 SLR 121
• See also:
o PDRM v Audrey Keong Mei Cheng (1994) 3 MLJ 296
Criminal Procedure 254

o Masa ak Nangkai & 5 Ors v Sgn Edwin Nancha & Anor

(2005) 1 MLJ 581 (HC)

(iv) Section 24 CPC – refusal to give name and address

• PP v Ong Kee Seong (1960) MLJ 156

(b) Private Person: section 27 CPC

‘In his view’;

Does it mean “in his sight” or “in his opinion”?
• Walters v WH Smith & Son Ltd. (1947) 1 KB 595
• Sheo Balak Pusadh v E (1948) AIR Allahabad 103
• Nazir v R (1951) AIR Allahabad 3
• Kartar Singh, State v AIR (1956) Punjab 122
• Durga Singh v Md Isa (1963) 1Cr LJ 827
• Wong Kok San v WH Salt (1952) MLJ 204
• Sam Hong Choy v PP (1996) 1 CLJ 514
• See also the unreported decision in the case of Metro (Golden Miles)
Pte Ltd v Paul Chua
Also read, Ivy Hwang "Wrongful Arrest by Private Persons" (1981)
23 Mal. L.R. 182

(c) Magistrate/Justice of the Peace: sections 30 and 31 CPC

4. Mode of Arrest:

(a) Whether mere words tantamount to an arrest? Must there be a physical

seizing or touching of the person to be arrested (‘the arrestee’)?

(i) Position at Common Law

• Alderson v Booth (1969) 2 QB 216
• Sha’aban and others v Chong Fook Kam and Anor (1969) 2 MLJ
219
Criminal Procedure 255

• Inwood (1973) 2 AER 645

(ii) Section 15 CPC

• PP v Ong Kee Seong (1960) MLJ 156
• Jayaraman v PP (1982) 2 MLJ 306
• Krishnan v PP (1987) 1 MLJ 292

(iii) Other incidental powers in relation to arrest:

• Section 16 CPC
• Section 18 CPC
• Section 32 CPC
• Section 33 CPC

(iv) Consequences of an unlawful arrest:

• Regina v See Kah Loon (1881) SSLR 101
• Saminathan v PP (1937) MLJ 39
• Saw Kim Hai & Anor v Reg (1956) MLJ 21
• PP v Kok Khee (1963) MLJ 362
• Khor Ah Kah v PP (1964) MLJ 309
• See also:
o PP v Salleh bin Saad (1983) 2 MLJ 164
o Jayaraman v PP (1982) 2 MLJ 306
o PP v Tan Seow Chuan (1985) 1 MLJ 318
o PP v Johari bin Abdul Kadir (1987) 2 CLJ 66
o PP v Lim Kin Ann (1988) 1 MLJ 401
o PP v Roseyatimah bte Neza & Anor (1989) 1 MLJ 360
o PP v Tan Chye Joo (1989) 2 MLJ 253
o Pendakwa Raya v Kang Ho Soh (1992) 1 MLJ 360
o PP v Shee Chin Wah (1998) 5 MLJ 429
o Lim Hock Boon lwn PP (2007) 1 MLJ 46
Criminal Procedure 256

(b) Dealing with an arrestee:

(i) Arrest by Penghulu: section 25 CPC
(ii) Arrest by private person: section 27 CPC. Take note of section 430
CPC (now amended).
(iii) Arrest by police officer: section 28 CPC

(c) Rights on Arrest:

(i) Right to be informed of the grounds of arrest:

• Article 5(3) FC
• Section 28A CPC
• Christie v Leachinsky (1947) 1 All ER 567
• Abdul Rahman v Tan Jo Koh (1968) 1 MLJ 205

(ii) Right of private defence:

• PP v Ong Kee Seong (1960) MLJ 156
• PP v Kok Khee (1963) MLJ 362
• Khor Ah Kah v PP (1964) MLJ 309

(iii) Right to communicate with a relative or a friend:

• Section 28A (2) (a) CPC
• Yong Moi Sin v Kerajaan Malaysia & Anor (2000) 1 MLJ 35

(iv) Right to legal representation and communication with counsel:

• Article 5(3) FC
• Section 28A (2) (b), (3), (4), (5) (6) subject to section 28A (8),
(9) and (10), (11) CPC
o Lee Mau Seng v Minister of Home Affairs, Singapore
(1973) 1 MLJ 54
o PP v Mah Chuen Lim (1975) 1 MLJ 95
o Ooi Ah Phua v Officers-in-Charge CID Kedah/Perlis (1975)
2 MLJ 198
Criminal Procedure 257

o Hashim bin Saud v Yahya bin Hashim (1977) 1 MLJ 259

o Saul Hamid v PP (1978) 2 MLJ 736
o Mohamed bin Abdullah v PP (1980) 2 MLJ 201
o Re the Detention of R Sivarasa & Ors (1996) 3 MLJ 611
o PP v Audrey Keong Mei Cheng (1997) 4 CLJ 702
o Mohamad Ezam bin Mohd Noor v Ketua Polis Negara &
Other Appeals (2004) 4 MLJ 449

(v) Right to be produced before a Magistrate:

• Article 5 (4) FC
• Section 28, 117 CPC
o Gabriel v PP (1992) 1 MLJ 593
o Yong Moi Sin v Kerajaan Malaysia & Anor (2000) 1 MLJ 35
o Dato’ Sri Khalid Abu Bakar v N Indera a/p Nalathambi
(Administrator of Estate of Kugan a/l Ananthan) (2015) 1
MLJ 353

(vi) Right to remain silent:

• Proviso to section 112(2) CPC
• Section 37A of the Dangerous Drugs Act 1952 (DDA)

(vii) Right to be released on bail:

• Section 29 CPC
• Chapter 38 CPC – sections 387 and 388 CPC
o Maja anak Kus v PP (1985) 1 MLJ 311 – section 387(1)
CPC does not override the provisions of section 117 CPC
o Kwan Hung Cheong v Inspector Yusof Haji Osman
(2009) 3 CLJ 496

(d) Remedies

(i) Civil claim for damages:

Criminal Procedure 258

• Tan Kay Teck & Anor v Government of Malaysia (1957) MLJ

237
• Kuan Kwai Choi v Ak Zaidi bin Pg Metali (1993) 2 MLJ 207
• Mohd Azran bin Rahmat & Anor v Mazlan bin Aliman (2016) 4
MLJ 337 (CA)
• Mohd Hady bin Ya’Akop v Hassan bin Marsom & Ors (2016) 4
MLJ 141 (CA)
• Hassan bin Marsom & Ors v Mohd Hady bin Yaakop (2018) 5
MLJ 141 (FC)

(ii) Right to apply for a Writ of Habeas Corpus:

• sections 365 - 374 CPC
o Re Ongkar Shrian (1970) 1 MLJ 28
o Karpal Singh s/o Ram Singh v Menteri Hal Ehwal Dalam
Negeri Malaysia & Anor (1988) 1 MLJ 469
o Re The Detention of Leonard Teoh Hooi Leong (1998) 1
MLJ 757
o See also:
▪ Aminah v Supt of Prison Pengkalan Chepa, Kelantan
(1968) 1 MLJ 92
▪ Assa Singh v MB Johore (1969) 2 MLJ 30
▪ Ramli bin Salleh v Insp Yahaya bin Hashim (1973) 1
MLJ 54
▪ Hoo Thiang Seng v PP (1988) 2 MLJ 401
▪ Lee Sew Fan v KDN Malaysia (1990) 1 MLJ 42
▪ PP v Vengadasalam and others (1990) 1 MLJ 507
▪ Morgan a/l Perumal v K/Insp Hussin Majid (1996) 3
MLJ 281
▪ Lau Kong Peng v PP (1998) 6 MLJ 501
▪ Re The Detention of Leonard Teoh Hooi Leong
(1998) 1 MLJ 757
▪ Re Lelewelyn Evans (1926) AIR Bom 551
Criminal Procedure 259

▪ Sundar Singh v Emperor (1930) AIR Lahore 945

▪ Moti Bhai v The State (1954) AIR Rajasthan 241
▪ Tarapade v State of West Bengal (1959) SCR 212

(e) Warrant of Arrest and Summons:

(i) Warrant of Arrest: sections 38 – 43, 47 - 50 CPC

• Kuan Kwai Choi v Ak Zaidi bin Pg Metali (1993) 2 MLJ 207
• Service out of Jurisdiction:
o Summonses and Warrants (Special Provisions) Act 1971;
o Summonses and Warrants (Special Provisions) Extension
to Brunei Darussalam, Order 1984

• Issue of warrant in lieu of summons: section 47 CPC

(ii) Summonses: sections 34 - 37 CPC

IV. SEARCH

1. Types of Search

(a) Search of body of person:

(i) Sections 17, 19(2), 20, 20A, 21 and 22 CPC

(ii) Types of body search

• pat down search
• strip search
• intimate search
• intrusive search

(iii) See FOURTH SCHEDULE - Procedure on body search

(b) Search for person in premises: sections 16 and 58 CPC

Criminal Procedure 260

(c) Search of place or premises

(i) With Warrant: sections 54, 55 and 56 CPC and section

111 CA
Whether absence of prosecution affects warrant of
search and seizure -
• Kerajaan Malaysia & Ors v Then See Nyuk & Anor
(2018) 2 CLJ 704 (CA)

(ii) Without warrant: sections 62, 62A, 62B, 63 and 116,

116A, 116B and 116C CPC; section 112 CA

(iii) Requirement as to search list and its importance: section

64 CPC
• San Soo Ha v PP (1968) 1 MLJ 34
• Bannerjee v R 41 Cal 350
• Bhikugir v R (1932) AIR 449

(iv) Occupant to be present at search

• PP v Chin Hock Aun (1989) 1 MLJ 509

2. Procedure to be followed by police on seizure of property: Section

413 (1) to (5) CPC
• Manoharan v Ketua Polis Ibu Pejabat Kontijen Polis Seremban, Negeri
Sembilan & Anor (2002) 2 MLJ 85 (CA)

3. Power of police to seize property alleged to be stolen; suspected to

have been; found under circumtances which create suspicion that an
offence has been committed: Section 435 CPC
• Re Kah Wai (Ipoh) Sdn Bhd (1987) 2 MLJ 459
• See section 550 of the Indian CPC 1898
Criminal Procedure 261

• See also AIR commentaries on the Code of Criminal Procedure 1898 (6 th

edition) paragraphs 3560 – 3561

4. Application of English Common Law principles on search and seizure

in Malaysia: Section 5 CPC
• Chic Fashions (West Wales) Ltd v Jones (1968) 2 WLR 201
• Ghani & Ors v Jones (1969) 3 All ER 1708
• Re Kah Wai Video (Ipoh) Sdn Bhd (1987) 2 MLJ 459
• See also
o Ellias v Passmore (1934) 2 KB 164
o Thomas v Sawkins (1935) 2 KB 249
o Garfinkel v Metropolitan Police Commissioner (1972) Cr L R 44.
o State of Maharastra v Natwarlal Damodar das Soni (1980) Cr L J 429
o Abdul Satar v State (1989) Cr L J 430

5. What is the status of illegally obtained evidence?

• Kuruma v Reg (1955) 1 AER 236.
• King v Reg (1968) 2 All ER 610 (HL) 3 WLR 263; (1980) AC 402; (1979) 2
AER 1222
• Saminathan v PP (1937) MLJ 39
• Saw Kim Hai v Reg (1956) MLJ 21 (wrongful arrest/search does not affect
jurisdiction of court to try a criminal case)
• Cheng Swee Tiang v PP (1964) MLJ 291

V. DISCLOSURE IN A CRIMINAL PROCEEDINGS

1. Section 51A CPC

(a) Pre-trial disclosure.

(b) Delivery of documents and statement of facts favorable to the defence of

the accused.
Criminal Procedure 262

• PP v Ramasamy a/l Simmathri & Anor Application (2001) 4 MLJ 412

• Retnarasa a/l Annarasa v Pendakwa Raya (2008) 3 AMR 321; (2008)
4 CLJ 90
• PP v Mohd Fazil Awaludin (2009) 2 CLJ 862 (HC)
• PP v Dato’ Seri Anwar Ibrahim & another Appeal (2010) 2 MLJ 312
(FC)

2. Section 51 CPC

• Summons to produce or Production order issued by the court to a person

to produce property or document.

• Written order by investigation officer to a person to produce property or

document – observe the link with section 116 CPC.
o PP v Teoh Choon Teck (1963) MLJ 34
o Hj Abdul Ghani bin Ishak v PP (1980) 2 MLJ 196
o Syed Abu Bakar bin Ahmad v PP (1982) 2 MLJ 186
o Raymond Chia Kim Chwee & Anor v PP (1985) 2 MLJ 63 (SC)
o Kulwant v PP (1986) 2 MLJ 10
o Huzir bin Hassan v Ketua Polis Daerah, Johor Bahru (1994) 2 MLJ
385
o PP v Lim Sooi Booi (2003) 2 MLJ 433
o Muzammil Izat bin Hashim v PP (2003) 6 MLJ 590
o Dato Tiah Tee Kian v PP (2002) 2 CLJ 21
o PP v Dato’ Seri Anwar Ibrahim & another Appeal (2010) 2 MLJ 312
(FC)

3. Disclosure by defence

(a) See section 62 of MAAC Act

(b) Take note that there has been a challenge made at the superior courts on
the constitutionality of this provision and its application.
Criminal Procedure 263

(c) Section 62 states that once delivery of documents by the prosecution

pursuant to section 51A CPC has taken place, the accused shall, before
commencement of the trial, deliver a defence statement setting out in
general terms the nature of the defence and the matters on which the
accused takes issue with the prosecution with reasons, and a copy of
any document which would be tendered as part of the evidence for the
defence.

(d) In a corruption trial at the High Court, Penang –

• the accused person Lim Guan Eng (Lim) was charged with using
his public office or position to obtain gratification for himself and
his wife, Betty Chew, by approving an application by
businesswoman Phang Li Koon (Phang) company, Magnificent
Emblem, to convert agricultural land to residential purpose during
a state planning committee meeting.

• Lim is alleged to have used his position to obtain gratification by

purchasing his house from Phang at RM2.8 million, which was
below the property’s market value of RM4.27 million.

• Phang, meanwhile, was charged under Section 109 of the Penal

Code for abetting Lim in regards to his purchase of the house on
Pinhorn Road from her for RM2.8 million which was below the
market value or RM4.27 million whereby Lim had allegedly
committed an offence under Section 165 of the Penal Code.

• Lim had claimed trial to the corruption charges at the High Court
here.
Criminal Procedure 264

• At the High Court

o Lim and Phang had filed separate motions to the High Court to
declare Section 62 of the MACC Act 2009 "unconstitutional".

o Judge Hadhariah Syed Ismail, in striking out the motion filed by

Lim and Phang, ruled that there is nothing unconstitutional
about the Act.

o In her judgment she said "Having considered the MACC Act

2009 in its totality, there is no reason for the court to say that
it is unconstitutional... it is constitutional and valid.”

o "It also does not infringe on Article 5(1) and 8(1) of the Federal
Constitution," she said in her judgment. Article 5(1) states that
no person shall be deprived of his life or personal liberty, save
in accordance with law. Article 8(1) states that all persons are
equal before the law and entitled to the equal protection of the
law.

o The High Court Judge also assured that the accused will be
given a fair trial and be presumed innocent until proven guilty
as the burden of proof continues to remain with the
prosecution.

o Hence the High Court of Penang dismissed the application, on

the grounds that Section 62 did not impede the accused's right
to a fair trial.
Criminal Procedure 265

• At the Court of Appeal

o On appeal to the Court of Appeal, it ruled that section 62 of

the MACC Act 2009, which requires the accused to file a
defence before the trial starts, was unconstitutional.

o The Court of Appeal also set aside the Penang High Court’s
orders directing his client to file a defence statement before
commencement of the trial.

• At the Federal Court:

o The Chief Justice allowed the Malaysian Anti-Corruption

Commission (MACC) appeal, overturning the Court of Appeal's
decision.

o The five man-panel unanimously found the Act not to be in

contravention of Articles 5(1) and 8(1) of the Federal
Constitution, which enshrines the right to a fair trial.

o The court ordered the case to go back to trial and for the
accused person, Lim Guan Eng to submit his defence statement
ahead of his corruption trial.

o At point of update of this outline, the written judgement of the

Federal Court is yet to be obtained

VI: INVESTIGATION OF CRIMES BY THE POLICE

1. Preventive Action of the Police: Chapter XII and Sections 103 - 106 CPC

2. Prevention of offences: Part IV CPC – Chapter VII to XI

Criminal Procedure 266

(a) Section 66 CPC

• Conviction must be recorded

(b) Section 66A CPC

• Mek binte Awang v Che Mas binte Awang (1948) MLJ 36

(c) Section 67 CPC

• Kylasam v PP (1916) 1 FMSLR 276

(d) Section 68 CPC

• Section 68(1) (a)
• In the Matter of Yaacob (1937) MLJ 245

(e) Section 69 CPC

• Bachik b. Abdullah v PP (1935) MLJ 290.

(f) Section 71 CPC

• Kylasam v PP (1916) 1 FMSLR 276
• Mohamed Kaus v Rex (1934) MLJ 179
• Ramasamy v PP (1946) MLJ 58

(g) Section 73 CPC

• Cheng Wing Nam v PP (1929) FMSLR 54
• Lim Heon v PP (1933) FMSLR 175

(h) See also:

• Police Act 1967
• Public Order (Preservation) Act 1958 (section 13)

3. Police Powers to Investigate: Sections 107 - 120 CPC & Section

396 CPC

(a) First Information Report (FIR): Section 107 CPC

Criminal Procedure 267

(i) Is it a condition precedent to the starting of criminal investigation?

• Khwaja Nazir Ahmad AIR 1945 PC 18
• Herchun Singh & Ors v PP (1969) 2 MLJ 209
• PP v Foong Chee Cheong (1970) 1 MLJ 97
• PP v Dato Seri Anwar bin Ibrahim (No. 3) (1999) 2 MLJ 1

(ii) FIR received orally; is it FIR for all intents and purposes?
• Lachmman v State (1973) Cr L J 1658
• S.V. Maider v State of Mysore (1980) 1 SCC 479; (1979) Cr L J
1358
• Tohal Singh v State of Rajasthan (1989) Cr L J 350
• Vellasamy v R (1941) MLJ 238
• Herchun Singh v PP (1969) 2 MLJ 209

(iii) What happens if the FIR is not produced in a criminal trial?

• Lee Yee Kok v R (1923) 4 FMSLR 1
• Ooi Hock Leong v Regina (1955) MLJ 229
• Tan Cheng Kooi & Anor v PP (1972) 2 MLJ 115
• PP v Abdul Razak bin Johari (1991) 1 MLJ 105

(iv) The evidential status of the FIR in a criminal trial:

• PP v Lee Eng Kooi (1993) 2 MLJ 322
• PP v Mohammad Terang bin Amit (1999) 1 MLJ 154
• Lee Yoke Yam v Chin Keat Seng (2012) 9 CLJ 833 (FC)
• Wong Soon Choon v PP (2016) 2 CLJ 807 (CA) – Omission to
state name of accused in police report; whether fatal to
prosecution case.
• See also:
o Gansa Ordon v R ILR 2 Patna 517
o Hasib v State of Bihar (1972) Cr L J 233
o Das v Weston and Others 16 CWN 145
Criminal Procedure 268

o Chin Khing Siong v R (1952) MLJ 74

o Teo Thin Chan and Anor v R (1957) MLJ 184
o Abdullah Amel Salli v PP (1994) 1 AMR 16

(v) Is the FIR accessible?

• Anthony Gomez v Ketua Polis Daerah Kuantan (1977) 2
MLJ 24 (FC)
• Husdi v PP (1979) 2 MLJ 304; (1980) 2 MLJ 80
• Loo Fang Siang v Ketua Polis Daerah Butterworth
(1981) 2 MLJ 272
• PP v Ramasamy a/l Simmathri & Anor Application (2001) 4 MLJ
412
• Balachandran v PP (2005) 2 MLJ 301
• Take note of section 51A CPC

(vi) Admissibility of a certified copy of FIR as evidence in a criminal trial:

section 108A CPC
• Anselam v PP (1941) MLJ 157
• Mohamed Yatin bin Abu Bakar v PP (1950) MLJ 57
• PP v Mohammad Terang bin Amit (1999) 1 MLJ 154
• Lee Yoke Yam v Chin Keat Seng (2012) 9 CLJ 833 (FC)

(b) Report on Status of Investigation: Section 107A CPC

(c) Order to Investigate (OTI) by the Public Prosecutor to the police officer to
investigate a non-seizable offence. Also take note of the position under
the Domestic Violence Act 1994.
• Section 108 CPC
• PP v Seridaram (1984) 1 MLJ 141
• PDRM v Audrey Keong Mei Chung (1994) 3 MLJ 296
Criminal Procedure 269

(d) Special Powers of Investigations

(i) Procedure to investigate seizable offences: Sections 109 and 110

CPC

(ii) Requirement of attendance of witnesses: Section 111 CPC

(iii) Remand of suspect pending investigation under section 117 CPC and
the requirement for an Investigation Diary (ID) under section 119
CPC. Take note of the new section 117 (1A) CPC which provides that
the Public Prosecutor may appear in any application made under
section 117 CPC.
• Ramli bin Salleh v Inspector Yahya bin Hashim (1973) 1 MLJ 54
• Hashim bin Saud v Yahya bin Hashim & Anor (1977) 1 MLJ 259
• Saul Hamid v PP (1987) 2 MLJ 736
• PDRM v Audrey Keong Mei Cheng (1994) 3 MLJ 296
• Re The Detention of R Sivarasa & Ors (1996) 3 MLJ 611
• Re The Detention of Leornard Teoh Hooi Leong (1998) 1 MLJ
757
• PP v NCA Child (2004) 2 MLJ 299 (CA)
• PP v Ayar & Ors (2010) 4 MLJ 400
• Mohd Azran bin Rahmat & Anor v Mazlan bin Aliman (2016) 4
MLJ 337 (CA)
• Mohd Hady bin Ya’Akop v Hassan bin Marsom & Ors (2016) 4
MLJ 141 (CA)
• Hassan bin Marsom & Ors v Mohd Hady bin Yaakop (2018) 5
MLJ 141 (FC)

See also:

Saravanan Meyappan - Law of Remand in Malaysia: Recent

Developments and Concerns (2018) 1 LNS (A) xlvii.

(iv) Statement taking under section 112 CPC

Criminal Procedure 270

• Narayan Swani 40 Cr L J 364

• PP v Subramaniam & Anor (1956) MLJ 58
• Lim Kim Chuan v PP (1948) MLJ 151
• Martin Rhienns v Sher Singh (1949) MLJ 201
• Khoo Siew Bee & Anor v Ketua Polis, Kuala Lumpur (1979) 2
MLJ 49
• PP v Mohamed Noor bin Jantan (1979) 2 MLJ 289
• Haji Abdul Ghani bin Ishak v PP (1980) 2 MLJ 196
• Abdul Ghani bin Jusoh v PP (1981) 1 MLJ 25
• Jayaraman & Ors v PP (1982) 2 MLJ 306
• PP v Liik Ching Keong (1988) 1 MLJ 398
• PP v Kamde bin Raspani (1988) 3 MLJ 289
• PP v Veeran Kutty & Anor (1990) 3 MLJ 498 Husdi v PP (1979)
2 MLJ 304 PP v Huzir bin Hassan (1991) 1 MLJ 445
• Yusof Omar v PP (2001) 2 MLJ 209
• Norliana Binti Sulaiman v PP (2000) 4 MLJ 752
• Suruhanjaya Pencegahan Rasuah Malaysia & Anor v Latheefa
Beebi Koya & Anor (2017) 10 CLJ 1 (FC) – whether Article 5 (2)
or 5 (3) of Federal Constitution confers constitutional right on
complainant to be represented by counsel during statement
taking. Although the statement taking in this case is under the
MACC Act 2009, issues of this nature could be raised during
statement taking under section 112 CPC.

(v) Significance of section 114 CPC – no police officer or other person

shall prevent or discourage any person from making statement to
police which he may be disposed to make of his own free will
(voluntarily)

(vi) Admission of Statement under section 113 CPC and sections 145
and 155(c) of the Evidence Act 1950.
Criminal Procedure 271

(vii) Take note of section 113 (3) CPC with regard to admissibility of a
statement made by an accused person as evidence in support of his
defence during the course of the trial.

(viii) What is the connection between sections 112 and 113 CPC?

(ix) What is the relationship between section 113 CPC and sections
17(2), 21, 24, 25 and 26 Evidence Act 1950?

(x) Admissibility of cautioned statement made by accused under other

laws like:
• Section 37A Dangerous Drugs Act 1952
• Section 16 Kidnapping Act 1961
• Section 72 Anti-Money Laundering, Anti-Terrorism Financing
and Proceeds of Unlawful Activities Act 2001
• Section 53 Malaysian Anti-Corruption Commission Act 2009

(e) Issues that can arise when admitting a cautioned statement in a criminal
trial involving such offences as in paragraph (x) above. The same issues
had arisen when admitting such a cautioned statement under the former
(now amended) section 113 CPC. The issues inter alia are:

(i) To whom the statement is made? Importance of the phrase “to an

Inspector” under the repealed section 113 CPC being a person in
authority
• Cheong See Leong v PP (1948-49) MLJ Supp 56
• Abdul Ghani bin Jusoh v PP (1981) 1 MLJ 25
• Ismail bin Abdul Rahman v PP (1974) 2 MLJ 180
• PP v Tan Keo Hock (1982) 2 MLJ 190
Criminal Procedure 272

(ii) The requirement of a caution by the Recording Officer (RO) before

recording a cautioned statement from the suspect (arrestee).
• Jayaraman & Ors v PP (1982) 2 MLJ 306
• Karpal Singh v PP (1986) 2 MLJ 319
• Krishnan v PP (1987) 1 MLJ 292
• PP v Johari Abdul Kadir (1987) 2 CLJ 66
• PP v Lim Kim Ann (1988) 2 MLJ 319
• PP v Badrulsham bin Baharom (1988) 2 MLJ 585
• PP v Rosyatimah bte Neza & Anor (1989) 1 MLJ 360
• PP v Kang Ho Soh (1992) 1 MLJ 360
• PP v Kalaiselvan (2001) 4 AMR 3973
• Tan Ewe Huat v PP (2004) 1 CLJ 521 (FC)
• PP v Nordin bin Murhaban & 3 Ors (2005) 3 AMR 165
• Chian Swee Ong v PP (2010) 4 MLJ 737 (FC)
• Khairuddin bin Hassan v PP (2010) 6 MLJ 145
• Mohd Ali Hussaimar v PP (2010) 5 MLJ 741

(iii) Language used by the suspect and the need for an Interpreter.
• Cheong See Leong v PP (1948-49) MLJ Supp. 56
• Muka Musa v PP (1964) MLJ 275
• Tang Lee Keng v PP (1968) 2 MLJ 48
• Chua Beow Huat v PP (1970) 2 MLJ 29
• Tan Too Kia v PP (1980) 2 MLJ 187
• PP v Mohamed Zaki (1986) 2 MLJ 305
• Akin Khan bin Abdul Khanan v PP (1987) 1 CLJ 348
• PP v Kamde Raspani Khanan (1988) 3 MLJ 289
• PP v Mohd Fuzi bin Wan Teh & Anor (1989) 2 CLJ 652
• Diana Nelson Tanoja v PP 2010 1 MLJ 50 (CA)
Criminal Procedure 273

(iv) The position of a Recording Officer (RO) who records the cautioned
statement.
• PP v Yong Kong Hin (1983) 1 CLJ 178
• Lee Look v PP (1985) 1 MLJ 240
• Mohd Yusof bin Hj Ahmad v PP (1983) 2 MLJ 167
• PP v Mohd Fuzi bin Wan Teh & Anor (1989) 2 CLJ 652
• Teo Siaw Peng v PP (1993) 2 MLJ 364
• PP v Lee Chee Meng (1991) 1 MLJ 226
• PP v Zainal Abidin bin Ismail & 3 Ors (1987) 2 MLJ 741

(v) Is the statement made voluntarily by the suspect (arrestee)? Is the

statement made under pressure, duress, undue influence etc.?
• Pyare Lal v State of Rajasthan AIR 1963 SC 1094
• R v Santokh Singh (1933) MLJ 178
• R v Cleary (1964) 48 Cr. App 116, 119
• Deokinnan v R (1968) 3 AER 346
• Abu Bakar Nasmeer v PP (1970) 2 MLJ 216
• PP v Law Say Seck (1971) 1 MLJ 199
• DPP v Ping Lin (1975) 3 AER 175
• Mohamed Yusof v PP (1983) 2 MLJ 167
• Dato Mokhtar Hashim v PP (1983) 2 MLJ 232
• PP v Lee Chee Meng & Anor (1991) 1 MLJ 226; (1992) 1 MLJ
322
• Hasibullah Mohd Ghazali v PP (1993) 2 AMR 3117
• Francis Anthonysamy v PP (2003) 1 CLJ 831
• PP v Mogan a/l Ayavoo (2004) 3 CLJ 623

(vi) Access to Section 112 statements for purpose of defence or

impeachment.
• Chung Tain Kong v PP (2010) 2 CLJ 308
• Siti Aisyah v PP (2019) 4 MLJ 46
Criminal Procedure 274

(vii) The need for a trial within a trial in order to determine the
admissibility of such a statement in a criminal trial.
• Sabli Adlin v PP (1978) 1 MLJ 210
• PP v Mohamed Noor Jantan (1979) 2 MLJ 289
• Sidek bin Ludan v PP (1995) 3 MLJ 178
• Mohd Ali Jaafar v PP (1998) 4 MLJ 210
• PP v Mohd Fahmi bin Hamzah (2002) 6 MLJ 340
(viii) Fair, just, transparent and accurate procedure at a trial within at trial
• Abu Bakar v PP (1970) 2 MLJ 216
• Wong Kam Ming v The Queen (1979) 1 AER 939
• Abdul Mahmud v PP (1980) 2 MLJ 50
• Tan Too Kia v PP (1980) 2 MLJ 187
• PP v Kadir Awang (1989) 2 MLJ 33
• PP v Aidil Maa’rof (1992) 2 CLJ 1239
• PP v Lee Kim Chuan (1992) 2 CLJ 1160
• Lim Seng Chuan v PP (1977) 1 MLJ 171

(ix) Nature and quality of cautioned statement made

• R v Santokh Singh (1933) MLJ 178
• Sinaraju v PP (1961) MLJ 33
• Osman v PP (1967) 1 MLJ 137
• Lim Yow Choon v PP (1972) 1 MLJ 205
• PP v Mohamed Noor Jantan (1979) 2 MLJ 289
• Lim Yow Choon v PP (1972) 1 MLJ 205
• R v Duncan (1981) 73 Cr App R 65
• R v Sharp (1988) 1 AER 65
• PP v Mohd Nadzir (1988) 3 MLJ 238
• Chan King Choi v PP (1991) 1 MLJ 260
• PP v Mansor Mohd Rashid (1996) 3 MLJ 560
Criminal Procedure 275

(x) The admission of such a statement in a criminal trial.

• DPP v Ping Lin (1975) 3 AER 175
• Dato Mokhtar Hashim v PP (1983) 2 MLJ 232
• PP v Lin Lian Chen (1991) 1 MLJ 316 (HC); (1992) 2 MLJ 561
(SC)
• Hasibullah Mohd Ghazali v PP (1993) 2 AMR 3117
• PP v Adetunji Adeleye Sule (1993) 2 MLJ 70
• Tan Ewe Huat v PP (2004) 1 MLJ 559
(xi) The decision made after a trial within a trial.
• R v Watson (1980) 2 AER 29
• PP v Ng Lai Huat & Ors (1990) 2 MLJ 427
• Mohd Shamshir v PP (2009) 3 CLJ 623

VII. IMPEACHMENT PROCEEDING AND PROCEDURE

1. The Law:

• Section 113(2) CPC

• Section 145 and 155 (c) Evidence Act 1950

2. Modes of impeaching the credit of a witness:

(a) Impeachment by using a witness’s previous inconsistent statement:

• Ip Ying Wah v PP (1958) MLJ 34
• Husdi v PP (1980) 2 MLJ 80
• Pavone v PP (1986) 1 MLJ 72
• Pathmanabhan Nalliannen v PP & Other Appeals (2017) 4 CLJ 137
(FC) – is a first information report (FIR) included?

(b) Impeachment by using the testimony of an independent witness:

• Section 155(a) Evidence Act 1950
Criminal Procedure 276

• Annamalay a/l Narayanan v PP (unreported)

(c) Impeachment of a prosecution witness by the defence – existence of a

‘hunch’
• Husdi v PP (1980) 2 MLJ 80

(d) Impeachment of an accused person

• Ip Ying Wah v PP (1958) MLJ 34 – when the accused elects to make
a statement from the dock, he is not on oath and not subject to
cross-examination, thus his credit cannot be impeached.
• Krishnan & Anor v PP (1981) 2 MLJ 121
• PP v Samsul Kamar bin Mohd Zain (1988) 2 MLJ 252
• PP v Teng Chen Choi (1989) 1 CLJ 56
• PP v Wong Yee Sen & Ors (1990) 1 MLJ 187

➢ Take note of section 113 (2) which clearly excludes a statement

made by an accused person for the purpose of an impeachment and
section 113 (3) CPC wherein his statement may be admitted in
evidence in support of his defence during the course of the trial.
This applies to offences under the Penal Code. See section 3 CPC.

➢ However, for offences under any other law, it shall be inquired and
tried subject to any special written law which regulates the manner
of inquiring or trying such offences. For example, see section 37A
(1) of the Dangerous Drugs Act 1952 -

“Section 37A. Admission of statement in evidence.

(1) Where any person is charged with any offence against this Act
any statement, whether such statement amounts to a confession
or not or is oral or in writing, made at any time, whether before or
after such person is charged and whether in the course of a police
Criminal Procedure 277

investigation or not and whether or not wholly or partly in answer

to questions, by such person to

or in the hearing of any police officer of or above the rank of

Inspector or any senior officer of customs and whether or not
interpreted to him by any other police officer or senior officer of
customs or any other person concerned or not in the arrest, shall
notwithstanding anything to the contrary contained in any written
law, be admissible at his trial in evidence and, if such person
tenders himself as a witness, any such statement may be used in
cross examination and for the purpose of impeaching his
credit …”

(e) Right to cross-examine a witness whose credit is sought to be impeached:

• Dato Mokhtar bin Hashim & Anor v PP (1983) 2 MLJ 232

4. Impeachment procedure:
• Muthusamy v PP (1948) MLJ 57 - four (4) categories of
discrepancy/difference

(a) Court to consider explanation by witness:

• PP v Datuk Hj Sahar Arpan (1999) 3 CLJ 427

(b) Effect of Impeachment:

(i) One view – credibility of witness is destroyed, testimony of

witness is totally erased from the record
• PP v Ong Joo Chin (1946) MLJ 1
• Mathew Lim v Game Warden, Pahang (1960) MLJ 89
• PP v Munusamy (1980) 2 MLJ 133
Criminal Procedure 278

(ii) Another view – the court is in a position to scrutinize the whole of

the evidence of the witness to determine which aspect might be
true and which shall be disregarded
• PP v Somwang Phatthanasaeng (1992) 1 SLR 138
• PP v Mohd Ali bin Awang & Ors (1994) 2 MLJ 12
(c) Stage of case at which the court makes a ruling on impeachment of a
witness:
• Dato Mokhtar bin Hashim & Anor v PP (1983) 2 MLJ 232

• PP v Datuk Hj Sahar Arpan (1999) 3 CLJ 427

• Other cases of relevance:

o PP v Datuk Hj Harun bin Hj Idris & Ors v PP (1977) 1 MLJ 180
o PP v Abdullah Ambik (1984) 1 CLJ 189
o PP v Abdul Kudus bin Japlus (1988) 2 CLJ 812
o PP v Lim Mung Shiang (1989) 2 MLJ 475
o Yusof bin Omar v PP (2001) 2 MLJ 209 (CA)

VIII. POWERS OF THE PUBLIC PROSECUTOR

1. Statutes

• Article 145(3) and 121 (1A) FC

• Chapter 37 CPC: sections 376, 377, 380A, 68(2), 418A & 418B

2. Under Article 145(3) FC

(a) Institution of proceedings for an offence

• Long bin Samat & Ors. v PP (1974) 2 MLJ 152
• PP v Khong Teng Khen & Anor (1976) 2 MLJ 166
• PP v Chai Yee Ken (1977) 1 MLJ 167
• Johnson Tan Han Seng v PP (1977) 2 MLJ 66
Criminal Procedure 279

• PP v H.L.S. Perera (1977) 1 MLJ 12

• Teh Cheng Poh v PP (1979) 1 MLJ 50
• Poh Cho Ching v PP (1982) 1 MLJ 86
• PP v Mat Radi (1982) 1 MLJ 214
• PP v Lee Tin Bau (1985) 1 MLJ 388
• Pai San & Ors v PP (2002) 4 MLJ 538
• PP lwn Mohd Noor Jaafar (2006) 1 CLJ 103
• PP lwn Ini Abong & Ors (2008) 8 MLJ 106

(i) Requirement of a consent by the Public Prosecutor to institute

proceeding for an offence

• Some provisions of the Law:

o Section 177A CPC – before transmission of a criminal case
to be tried by the High Court
o Section 39B (3) DDA – in respect of offences involving
dangerous drugs
o Section 126(1) Child Act 2001 – in respect of offences
under the Act.
• Cases:
o PP v Oie Hee Koi (1968) 1 MLJ 148
o PP v Lee Chwee Kiok (1979) 1 MLJ 45
o PP v Mohamed Halipah (1982) 1 MLJ 155
o PP v Datuk Haji Dzulkifli (1982) 1 MLJ 340
o PP v Chai Chong Yin &Anor (1983) 1 MLJ 267
o PP v Lim Boon Hock (1985) 2 MLJ 219
o PP v Tiong Ching Heng (1990) 2 CLJ 87
o PP v Oladatun Lukmaru Umari & Ors (1991) 1 MLJ 187
o Goh Keat Peng v PP (2001) 3 MLJ 172
o Kamaleshwaran v PP (Criminal Appeal No: J-09-269-10-
2013) – unreported
* (See below)
Criminal Procedure 280

(ii) Requirement of a previous sanction of the Public Prosecutor to

institute proceeding for an offence

• Some provisions of the Law:

o Section 129 CPC – previous sanction in writing for penal
code offences
o Section 58(2) Immigration Act
o Section 34 Poisons Act 1952

• Cases
o Abdul Hamid v PP (1956) MLJ 231
o Garmaz s/o Parkar & Anor v PP (1996) 1 SLR 401
o Kamaleshwaran v PP (Criminal Appeal No: J-09-269-10-
2013) – unreported

(b) Conduct of proceedings for an offence

(i) Section 377(a) CPC – Three (3) categories of officials who may
conduct criminal prosecution by operation of law; namely:
• Public Prosecutor (PP) (section 376(1) CPC)
• Solicitor General who shall have the powers of a Deputy Public
Prosecutor (DPP) (section 376(2) CPC)
• Deputy Public Prosecutor (section 376(3)
• Assistant Public Prosecutor (section 376(3A))

(ii) Section 377(b) (1) – (6) CPC – by persons who are ‘authorised in
writing by the PP.
• Pawanteh & Ors v PP (1961) MLJ 214
• PP v Datuk Haji Harun bin Haji Idris (1976) 2 MLJ 116
• PP v K.M. Basheer Ahmad (1982) 2 MLJ 78
• PP v Chan Kam Leong (1989) 1 MLJ 326
Criminal Procedure 281

• Repco Holdings Bhd v PP (1997) 3 MLJ 681

• PP v Pengurus MBF Building Services Sdn Bhd (1998) 3 CLJ 678
• PP v Lew Koy (2001) 4 MLJ 655 – there is no necessity to
tender or file the authorisation letter in court, but the
prosecuting officer is required to show the written authority to
the court if it is challenged.
• Ang Theam Chuan v PP (2002) 4 MLJ 40 (CA)
• Paisan & Ors v PP (2002) 4 MLJ 538 (CA)
• PP v Mohd Noor Jaafar (2006) 1 CLJ 103 (HC)

(c) Letter of Representation by Accused to Public Prosecutor

(i) Upon receiving the letter of representation from the accused or his
counsel, the Public Prosecutor are vested with powers and discretion
to continue, discontinue and withdrawal of criminal charges at any
stage of the proceedings.

(d) Discontinuance of proceedings for an offence Article 145(3) Federal

Constitution

(i) Section 254 CPC – PP may decline to prosecute further at any stage
of criminal proceeding before delivery of judgment

(ii) Section 254A CPC – reinstatement of trial after discharge of accused

by court and recharged for the same offence by the PP and to be
continued as if there had been no such order given
• Koh Teck Chai v PP (1968) 1 MLJ 166
• K Abdul Rasheed v PP (1985) 1 MLJ 193
• PP v Lee Chan Sang (1989) 1 MLJ 224
Criminal Procedure 282

(iii) Section 378 CPC

• M.I.S. Murray v Ooi Ah Kai 4 M.C. 4
• Ponniah v Lim (1960) MLJ 152
• Hardial Singh v Faridah bte Haron & Ors (1988) 2 MLJ 465

(iv) Section 379 CPC

• PP v Dato Seri Anwar Ibrahim (2014) 1 CLJ 354 (CA) – not
reversed by the FC
(v) Section 380A CPC

• Came about after substantive amendments made to section

377 and 380 vide Act A1015/1998

(vi) Section 377 and 380 CPC to prevail over any other written law

IX: INITIATION OF CRIMINAL PROCEEDINGS IN COURT

1. Criminal Procedure Code: section 128-132 CPC

Manner in which Magistrate may take cognisance of an offence – section

128(1) (a) to (d) CPC
• Taking cognisance – judicial act of taking notice of an offence
• Section 128(1)(a) – section 2(1) CPC - ‘complaint’ – non-seizable offence
o PP v Leonard (1960) MLJ 13

2. Complaint to Magistrate

(a) Section 133-136 CPC

• Private summons proceeding
• Complaint by an individual against another person
• See the link with section 108(1) CPC
o PP v Mah Chuen Lim (1975) 1 MLJ 95
Criminal Procedure 283

• “shall at once examine”

o Tan Hoe Watt v PP (1980) 2 MLJ 46

o Re Rasiah Munusamy (1983) 2 MLJ 294
o Hardial Singh Sekhon v Pegawai Buruh & Ors (1999) 6 MLJ 257
–
the appellant had made a complaint against the Director-
General of Labour for an offence under s 166 of the Penal Code
(Act 574). The magistrate refused to take cognisance of the
complaint on the ground that the appellant had been
“restrained from instituting any legal proceedings in any court
save by leave of a judge” by an order of the High Court. The
magistrate found that by swearing the complaint, the appellant
was instituting criminal proceedings without leave of court.
o Datuk Seri Samy Velu v Nadarajah (2001) 1 AMR 1 (HC)

• Section 133(1) (a), (d) – process of examination of complainant

when a Magistrate takes cognisance of an offence on a complaint

• Section 133(1) (b), (c) - Notice in writing shall be served on the PP

before examination of the complainant

• Section 133(1) (e) – PP may appear and assist the Magistrate in the
examination of the complainant

• Section 133(1) (1A) – PP may direct the police to investigate the

offence complained of and report to him

• Section 133(1) (1B) – If such a direction is made by the PP, the

Magistrate shall not proceed with the examination of the
complainant
Criminal Procedure 284

(b) Orders that may be made by the Magistrate upon examination of

complainant:

• Section 134 CPC – issue of summons against person complained

against may be postponed as the Magistrate sees reason to doubt
the truth of the complaint of an offence by the complainant which
he has taken cognisance of.
The Magistrate may then decide to inquire into the complaint further
to verify the truth of the complaint or direct a police officer to
inquire in order to ascertain the truth or falsehood of the complaint.
The police officer is then required to report to the Magistrate and
the PP as to the result of those inquiries.

• Section 134(2) – requirement of notice in writing to PP if Magistrate

decides to inquire further into the complaint himself. The PP may
appear and assist the Magistrate in such inquiry.

• Section 135 CPC – to dismiss the complaint made by the

complainant after examining the complainant and recording his
examination pursuant to section 133(1) (d) CPC or after further
inquiry pursuant to section 134 CPC if the Magistrate finds there is
no sufficient ground for proceeding.

• Section 136 – to issue the summons against the person complained

of pursuant to fourth column of the First Schedule CPC if the
Magistrate finds there is sufficient ground for proceeding against
him.

• Section 133(2) - If complaint is made by a police officer, public

officer or public servant acting in his official capacity for a summons
to be issued in a summons case against an accused who is
Criminal Procedure 285

investigated by the law enforcement agency from which the said

officer or public servant hails from and who is responsible for
investigating such a complaint, the process involved in examination
of the complainant as stipulated in section 133 is not applicable.
Examples are like cases involving an offence under the Employee
Provident Fund Act 1991; Road Transport Act 1987 etc. In such a
case, upon the Magistrate taking cognisance of an offence he
proceeds to either issue the summons if there is sufficient ground
for proceeding against the accused or not to issue if there is no
sufficient ground for proceeding against the accused pursuant to
section 136 CPC.

(c) Issuance of warrant or summons pursuant to section 136 CPC

• Once court issues the relevant process pursuant to section 136 CPC,
it is considered to have taken cognisance of the offence

• Once court takes cognisance of an offence and it is seized with

jurisdiction to try the offence, the institution of criminal proceeding
for an offence by the PP is legally held to be complete

• In the Supreme Court case of PP v Dato Yap Peng (1987) 2 MLJ 311,
Mohamed Azmi SCJ (as he then was) inter alia decided that:

‘…The power of a Magistrate or President Sessions Court to take

cognizance of an offence is governed by s 128 CPC. When the
respondent was brought before the Sessions Court on the two
charges under s 409 Penal Code (which offences the President had
jurisdiction to try without sanction under s 129 CPC even if the
respondent had appeared before the court on a complaint of a
person other than the Public Prosecutor), the normal legal position
Criminal Procedure 286

was that once the court had taken cognizance of the offence and
was seized with jurisdiction to try the case, the institution of the
proceedings by the Public Prosecutor was complete, because not
only had the Public Prosecutor successfully invited the court to take
action, but also it was the scheme of the Criminal Procedure Code
that trial follows cognizance and cognizance would be preceded by
investigation. Criminal proceedings are in fact not instituted until the
court has taken cognizance of the offence or offences under one or
other of the clauses of sub-s (1) of s 128 CPC (see Sohoni Criminal
Procedure Code (18th Ed) vol 3 page 1885). Accordingly, once a
court is seized with jurisdiction by taking cognizance of any offence
under s 128 CPC, a host of judicial powers will flow to enable the
court to proceed to trial and determine the dispute between the
parties in accordance with law.
In general, the court taking cognizance of the offence is the dividing
line between the sphere and domain of the executive and the
judiciary, for cognizance by the court signals the submission of the
executive to the jurisdiction of the court and marks the completion
of the exercise of executive power to “institute” the criminal
proceedings. From then on, the whole conduct of the proceedings
should be within the exclusive judicial power of the court until its
conclusion.”.

• Section 128(1)(b) – section 353 to 359 CPC

• Section 128(1)(c) – accused arrested and produced before the court

for the purpose of a charge for a seizable offence; take note of
section 129 CPC as to the requirement of prior sanction in writing
before proceeding with accused for a penal code offence;
requirement of ‘complaint’ before court takes cognisance of offences
referred to in section 130, 131 and 132 CPC respectively; other
Criminal Procedure 287

laws wherein such an instrument is required before institution of a

a criminal proceeding for an offence in court.
o PP v Lyn Hong Yap (1956) MLJ 226
o Mamat bin Daud & Ors v Government of Malaysia (1988) 1 MLJ
119

• Section 128(1)(d) – seizable offence – accused arrrested and

remanded pending further investigation of crime pursuant to section
117 CPC and upon expiry of remand he is brought to court for the
purpose of a charge

(d) Sanction and Consent

• R v Retnam (1934) MLJ 6
• Hassan bin Ishak v PP (1948-49) MLJ 179
• Tengku Abdul Aziz v PP (1951) MLJ 135
• Abdul Hamid v PP (1956) MLJ 231
• Pitchay Kutty v PP (1961) MLJ 293
• Haji Mohamed Paiman v PP (1966) 1 MLJ 53
• PP v Yusoff (1966) 2 MLJ 173
• PP v Oie Hee Koi (1968) 1 MLJ 148
• Perumal v PP (1970) 2 MLJ 265
• PP v Datuk Haji Dzulkifli (1982) 1 MLJ 340
• PP v Mohamed Halipah (1982) 1 MLJ 155
• Joginder Singh v PP (1984) 2 MLJ 133
• Datuk Mahindar Singh v PP (1987) 2 CLJ 39
• Recently the Court of Appeal in the case of Kamaleshwaran v Public
Prosecutor (Criminal Appeal No: J-09-269-10-2013) decided as
follows:
“This is our unanimous decision. In our view, the most important
question to be determined in the present case is whether the non-
issue or the non-production of the sanction under s.9 of the RRA
Criminal Procedure 288

1933 amounts to an illegality or a mere irregularity. In our view s.9

of the Act was couched in mandatory terms which goes to the
jurisdiction of the court. Therefore, the failure to comply with the
mandatory requirement of the provisions renders the entire
proceedings a nullity and cannot be cured under section 422 of the
CPC. In this case, we take note that the sanction issue was not
raised in the courts below. However, the question posed before us
specifically relates to the issue and production of the sanction. As
such there is a specific challenge by the Appellant on this specific
issue. In the face of this challenge, the Respondent ought to have
filed… Ladd & Marshall… to produce before this court that …

For this reason, we answer the question posed to us in the positive,

that is to say, the non-production of the sanction invalidates the
entire proceedings. For this reason, this appeal is allowed.
Conviction and sentence is set aside.”.

(e) Application of section 422 CPC

• Joginder Singh v PP (1984) 2 MLJ 133 – Section 422 enables a
superior court sitting on appeal or revision to remedy technical
defects which may have inadvertently arisen in a trial.
• Now see the decision of the CA in the case of Kamaleshwaran v PP
(Criminal Appeal No: J-09-269-10-2013) (Unreported).

X: TRANSMISSION AND TRANSFER

OF CRIMINAL CASES

1. Transmission of a criminal case for trial at the High Court

(a) Section 177A CPC: Consent by the PP
• See also Article 145(3A) FC
• PP v An Kee Cheng & Anor case (2006) 5 CLJ 427 (HC)
Criminal Procedure 289

• Percy Wong Kiet v PP (2016) 1 CLJ 169 (HC)

(b) Firearms (Increased Penalties) Act 1971, section 11

(c) Dangerous Drugs Act 1952, section 41A

• PP v Hun Peng Khai & Ors (1984) 2 MLJ 318
• PP v Muda bin Mohamed & Anor (1987) 2 MLJ 259
• PP v Johari bin Abdul Kadir (1987) 2 CLJ 66
• PP v Cheah Cheng Eng (1986)2 MLJ 39
• Savarimuthu v PP (1987) 2 MLJ 173
• PP v Lee Chan Sang (1989) 1 MLJ 224
• PP v Oladatun Umaru & Ors (1991) 1 MLJ 187
• PP v Marwan Ismail (2008) 3 CLJ 164 (CA)

2. Transfer by Magistrate/Sessions Court Judge

(a) Criminal Procedure Code: Section 177 (Transfer of a criminal case)

• By the sessions court judge or magistrate, himself or pursuant to

application made by PP
o PP v Ho Huah Teong (2001) 4 MLJ 21

• Grounds – to refer section 417 CPC

o PP v Tengku Abdul Aziz (1951) 1 MLJ 185
o PP v Hitam and Sultan bin Rahmansa (1955) MLJ 75
o PP v Fan Yew Teng (1973) 2 MLJ 1
o PP v Lau Mee Tung (1978) 1 MLJ 47
o Re Subramaniam s/o Sanasi (1983) 1 CLJ 40
o Wong Hong Toy v PP (1986) 2 MLJ 336, Singapore
o Lin v PP (1987) 1 MLJ 106, Singapore

(b) Courts of Judicature Act, 1964, section 25 (2), paragraph 12 of Schedule.

Criminal Procedure 290

• PP v Lim Shui Wang (1969) 1 MLJ 65

• PP v Su Liang Yu (1978) 2 MLJ 79

(c) Subordinate Courts Act (Act 92)

(i) Section 104

• Manokaran & Anor v PP (1979) 1 MLJ 262
• PP v Mohamad bin Wahab (2001) 1 AMR 274
• PP v Ho HuahTeong (2001) 4 MLJ 21 (CA)
• Manshor bin Omar and Anor Application v PP (2005) 2 MLJ 344

(ii) Section 99A, Third Schedule, paragraph 3(2)

• Manokaran & Anor v PP (1979) 1 MLJ 262

3. Transfer by High Court

(a) Criminal Procedure Code, section 417

(b) Section 417(2) CPC - pursuant to the report by the subordinate court; on
application by the PP or accused; or the own initiative of the High Court

(c) Section 418 CPC – procedure to be followed is by way of application for

transfer to the High Court; see exception in section 418(1) CPC if PP is
the applicant
o PP v Lim Shui Wang (1979) 1 MLJ 65 (FC)
o PP v Dato Kee Yong Wee (1987) 2 CLJ 329
o PP v Darkasyi & Anor (2003) 1 MLJ 170 (HC)
o PP v Tiong King Guan & Anor (2015) 3 CLJ 48 (CA)

4. Trials by High Court on a certificate issued by Public Prosecutor

• Criminal Procedure Code, section 418A
• Article 145(3A) Federal Constitution
Criminal Procedure 291

• See section 418B on the type of cases to which section 418A applies
o PP v Dato Yap Peng (1987) 2 MLJ 311
o Datuk Hj Harun bin Hj Idris v PP (1977) 2 MLJ 155
o PP v Datuk Haji Wasli bin Hj Mohd Said (2005) 4 CLJ 128 (HC)

XI: PRE-TRIAL PROCESSES

CHAPTER XVIIIA: SECTIONS 172A TO 172G CPC

1. Pretrial Conference: Section 172A CPC

(a) Who shall participate in a pretrial conference before the commencement

of the case management: Section 172A (1) CPC

(b) When shall a pretrial conference commence: Section 172A (2) CPC

(c) Means of conducting a pretrial conference and venue: Section 172A (3)
CPC

(d) Matters that may be discussed: Section 172A (4) CPC

(e) All matters agreed upon shall be reduced into writing and signed by the
parties involved: Section 172A (5) CPC

2. Case Management: Section 172B CPC

(a) Circular by Chief Judge No 1 of 2013.

• Naveen Raj Naidu Gunasegaran v PP & another appeal (2015) 3 CLJ
1082 (CA)

(b) Time frame for the commencement of a case management process:

Section 172B (1) CPC
Criminal Procedure 292

(c) Duties of Magistrate, Sessions Court Judge and High Court Judge during
case management: Section 172B (2) (i) to (vii) CPC

(d) When can a subsequent case management be held: Section 172B (3) CPC

(e) Trial shall commence not later than ninety days from the date of the
accused being charged: Section 172B (4) CPC

(f) Effect of failure for the case management or the trial to commence
according to time period specified: Section 172B (5) CPC

(g) Admissibility of matters reduced into writing and duly signed by parties
under Section 172A (5): Section 172B (6) CPC

3. Plea Bargaining: Section 172C

(a) Accused may make an application for plea bargaining in the court in
which the offence is to be tried: Section 172C (1) CPC

(b) Form and contents of application: Section 172c (2) (a) to (c) CPC; Form
28A of the Second Schedule CPC

(c) Upon receiving an application, Court shall issue a notice in writing to the
PP and accused to appear before the court on a date fixed for hearing of
the application: Section 172C (3) CPC

(d) Duty of Court to examine accused in camera during the hearing of

application as to whether the accused has made the application
voluntarily: Section 172C (4) (a) and (b) CPC
Criminal Procedure 293

(e) If application is made voluntarily parties shall proceed to mutually agree

upon a satisfactory disposition of the case: Section 172C (5) CPC

(f) If application is not made voluntarily, the Court shall dismiss the
application and the case to proceed before another Court: Section 172C
(6) CPC

(g) Duty of Court where a satisfactory disposition has been agreed upon in
writing and signed by the parties: Section 172C (7) CPC

(h) Duty of Court where no satisfactory disposition has been agreed upon by
parties: Section 172C (8) CPC

(i) Duty of Court to ensure plea bargaining process in completed voluntarily:

Section 172C (9) CPC
• PP v Manimaran Manickam (2011) 8 CLJ 439 (CA)
• PP v Abdul Malik Abdullah (2013) 1 CLJ 1008 (HC)

➢ See Importing The Concept of Plea Bargaining into the Criminal

Procedure Code in Malaysia (2010) 5 CLJ xxix

4. Disposal of the Case: Section 172D CPC

(a) Manners of disposal of case by the Court where a satisfactory disposition

of case has been agreed upon by parties: Sections 172D (1) (a) to (c) (i)
& (ii) and Section 172D (2) CPC

(b) Circumstances in which Section 172D (1) (c) (ii) CPC is not applicable
sections 172D (3) (a) and (b) (i) to (v) CPC, Section 172D (4) CPC defines
‘serious offence’ for the purpose of section 172D (3) (a) CPC
Criminal Procedure 294

5. Finality of the Judgment: Section 172E CPC

6. Statement of or facts stated by, accused not to be used for any other
purpose: Section 172F CPC

7. Section 172G CPC provides that if an accused pleads guilty at any time
before the commencement of his trial, the court shall sentence him in
accordance with section 172D (1) (c) (ii) CPC

8. Aside the formal plea bargaining process, the accused person through his
advocate may pursue with a Letter of Representation to the Public
Prosecutor with cogent basis and full facts disclosed, for the following –

(i) To have the charge against the accused withdrawn; e.g. in the case of
joint trial of multiple accused persons, one or more accused persons to
turn as prosecution witness against the other accused persons, provided if
the charge against them is withdrawn; or he has a complete defence to
the charge preferred against him etc.

(ii) To have the charge reduced to one for a lesser punishment and the
accused person to plead gulty to an amended charge; e.g. from an
offence under section 302 Penal Code to one under section 304 Penal
Code; 39B DDA 1952 to one under section 39A (2) DDA 1952 etc.

(iii) For the accused person to plead guilty but for a less deterrent sentence to
be meted out by the court;
(iv) For the accused person to plead guilty to one charge and for all remaining
charges or outstanding offences to be taken into consideration for the
purpose of sentencing pursuant to section 171A CPC.
Criminal Procedure 295

XII: SUMMARY TRIALS

1. Statutes

• CPC Section 173

• Child Act 2001 – Section 88, 89 and 90

2. Paragraph (a) - When an accused appears or is brought before court

(a) After he is arrested - section 38, 42, 47 CPC

(b) Under a Warrant of Arrest issued by Magistrate – fourth column of the First
Schedule, section 136, 38 CPC
(c) Under Summons issued by Magistrate – fourth column of the First Schedule,
section 136, 34 CPC
• Ramanathan a/l Chelliah v PP (1995) 2 CLJ 140
• Hee Nyuk v PP (1998) 2 MLJ 360 SC
• Rogayah bte Che Mat v PP (2001) 5 MLJ 77

‘A charge’ - see section 172 CPC

‘Particulars’ - see section 152 to 155 CPC
‘Shall be framed and read and explained to him’ - see section 173(a) CPC.

(d) Objections and matters that may be considered by the court before a plea is
taken are:
(i) Court has no jurisdiction - section 121 CPC
(ii) No consent or sanction of PP, where court has to refer to section 128 to
132 CPC or provisions of specific statutes
(iii) No particulars in charge - section 152 to 155 CPC
(iv) Plea of autrefois acquit and autrefois convict available. See section 302
CPC and Article 7(2) of Federal Constitution.
• PP v Gan Boon Aun (2017) 4 CLJ 41 – applicability of the principle
of auterofois acquit
Criminal Procedure 296

(v) Application for transfer - section 177 CPC

(vi) Postponement of case - section 259 CPC
(vii) Other matters – some cases:
• Juffery bin Hashim v PP (1986) 2 MLJ 239
• PP v Dat ak Tuni (1991) 1 MLJ 208
• PP v Zainal Abidin bin Mohd Zaid (1993) 1 CLJ 147
• PP v Nageswari (1994) 3 MLJ 463
• PP v Mohamed Ghazali Ibrahim (1995) 2 AMR 1446 – section 439
CPC
• PP v Punnaesvaran a/l Kesavan & Ors (2007) 3 MLJ 203
• PP v Marwan Ismail (2007) 2 MLJ 629
• PP v Thayalan a/l Maniam (2007) 4 MLJ 239

3. Paragraph (b)

(a) Charge as originally framed or as amended - section 158, 159 & 162 CPC
• Chiew Poh Kiong v PP (2001) 7 CLJ Supp. 249
• Haji Maamor v PP (2002) 6 MLJ 668
• Dato Seri Anwar Ibrahim (DSAI) v PP (2002) 3 MLJ 193 FC

(b) Understands the nature and consequences of his plea

• Nalliah v Rex (1948) MLJ 185
• Fong Hung Siom v PP (1950) MLJ 293
• Huang Chin Shiu v PP (1952) MLJ 7
• PP v Tengku Hitam (1962) MLJ 414
• PP v Ismail bin Ibrahim (1998) 3 MLJ 243

(c) Section 305 CPC provides that if an accused person is convicted on his plea of
guilt, he is only entitled to appeal against the extent or legality of the
sentence. However, once an appeal is lodged, nothing to prevent him from
Criminal Procedure 297

contending at the hearing of his appeal that the conviction is illegal thus
requesting the High Court to exercise its powers of revision.

• Lee Yu Fah and Others v PP (1937) MLJ 179

• PP v Muhammed Tarmizi (1985) 1 MLJ 219
• Mohammad bin Hassan v PP (1988) 5 MLJ 65
• Mohd Dalhar bin Redzuan v Datok Bandar Kuala Lumpur (1995) 1 MLJ
645

(d) Where accused pleads guilty:

(i) Must he plead personally by his own mouth or can his counsel plead on
his behalf?
• Right to counsel is as in section 255 CPC
o R v Tan Thian Chye (1932) MLJ 74
o Chia Ban Keat v Rex (1949) MLJ 297
o R v Ellis (1973) 57 Cr. App R. 115
o PP v Leng Chow Teng (1985) 1 MLJ 229
o Lee Weng Tuck (1989) 2 MLJ 143

• If complicated facts and law are involved:

o Low Hiong Boon v PP (1948/49) MLJ Supp 135
o Koh Mui Keow v PP (1952) MLJ 214
o Chen Chong v PP (1967) 2 MLJ 130
o Lo Kim Peng and Others v PP (1977) 1 MLJ 249
o PP v Margarita de Cruz (1988) 1 MLJ 539

(ii) Whether can plead guilty by letter (PGL)?

• Section 137 CPC
o Chow Sai Let v PP (1960) MLJ 246
o Azmy Ariff v PP (1974) 1 MLJ 108
Criminal Procedure 298

o PP v Leng Chow Teng (1985) 1 MLJ 229

(e) The plea must be without any qualification. If there is a qualification, such
plea of guilty will be rejected by the court as it tantamount to be a conditional
plea. In such an instance a trial will be held.

(i) The plea of guilt must be ‘unreserved, unqualified and unequivocal’ as in

• Seah Ah Chiew v PP (2007) 1 MLJ 377
• Sukma Darmawan v PP (2007) 5 MLJ 666
• Other case laws:
o Rex v Lim Soon Gong & Ors (1939) MLJ 10
o Yeo Sim Huat v PP (1961) MLJ 328
o Lau Eng Teck v PP (1965) 1 MLJ 34
o Heng Kim Khoon v PP (1972) 1 MLJ 30
o PP v Cheah Chooi Chuan (1972) 1 MLJ 215
o Lim Yoo Hock v PP (1984) 1 MLJ 309
o Munandu v PP (1984) 2 MLJ 82
o Ang Leong v PP (1985) 1 MLJ 239
o Margarita B. Cruz v PP (1988) 1 MLJ 539
o Gabriel v PP (1992) 1 MLJ 593
o Ku Izham bin Ku Adnan v PP (1998) 5 MLJ 720

(ii) When the facts of case admitted to by an accused run at a tangent to

the charge, the court has to reject the plea of guilty and order a trial.
• Palan v PP (1932) MLJ 124
• PP v Nahat Singh (1939) MLJ 239
• Tukiran bin Taib v PP (1955) MLJ 24
• Chin Ban Keat v Rex (1949) MLJ 297
• Mahmud v PP (1974) 1 MLJ 85
• Soon Tiew Choon v PP (1976) 1 MLJ 189
• Abdul Kadir bin Abdul Rahman v PP (1984) 1 MLJ 80
Criminal Procedure 299

• Lee Weng Tuck v PP (1989) 2 MLJ 143

• Lian Kian Boon v PP (1991) 1 MLJ 51

(f) Any plea made jointly (by two or more accused) on a joint charge

(i) the plea is bad and irregular

• Loh Seng and Anor v PP 4 MC 320
• Fong Siew Poh v PP (1933) 1 MC 155
• Toh Ah Loh & Anor v R (1949) MLJ 54
• Seet Ah Ann v PP (1950) MLJ 293
• Yap See Teck v PP (1983) 1 MLJ 410
• Lee Weng Sang v PP (1983) 1 MLJ 410
• Chai Chin Fatt v PP (1984) 2 MLJ 84

(ii) Where there are two or more charges against an accused, the charges
should be read and explained to him separately and the plea recorded
separately on each charge.
• R v Boyle (1954) 2 All ER 721
• Subramaniam & Anor v PP (1976) 1 MLJ 320

(g) Withdrawal of the plea

(i) Accused may wish to retract his plea of guilty and claim trial. It is the
court’s discretion either to accept or reject the retraction. The discretion
is to be exercised judiciously based on valid reasons and in the interest
of justice.
• R v Mc Nally (1954) 2 All ER 372
• PP v Sam Kim Hai (1960) MLJ 265
• Abdull Kadir bin Abdul Rahman v PP (1984) 1 MLJ 80

(ii) Such plea may be withdrawn before the court is functus officio.
• Abdul Mormin v PP (1939) MLJ 323
Criminal Procedure 300

(iii) When is the court functus officio? Once a conviction is recorded, as in:
• Wong Sin Yeow v PP (1968) 1 MLJ 230
• S v Recorder of Manchester (1971) AC 481
• Neo Tuck Shen v PP (1982) 1 MLJ 27
• Jamalul Khair v PP (1985) 1 MLJ 316
• Lau Hui Teck v PP (1988) 1 MLJ 203
• Lee Weng Tuck v PP (1989) 2 MLJ 143

4. Paragraph (c)
(a) Three situations envisaged:
• Accused refuses to plead
• Accused making no plea - see section 342 CPC
• Accused claiming trial

(b) It is not open to the magistrate to acquit without hearing the evidence.
• PP v Soon Thien Choon (1976) 1 MLJ 189
• PP v Semban (1976) 1 MLJ 91
• PP v Nasir bin Inziban (1996) 5 MLJ 153

(c) ‘To take all such evidence’ as in

• PP v Mohamed Said bin Jareme (1984) 1 MLJ 50
• PP v Zainuddin & Anor (1986) 2 MLJ 100
• PP v Lew Koy (2001) 4 AMR 4401

(d) Evidence to be taken in presence of accused - Section 264 to 272 A CPC, 401
CPC and the newly introduced section 425A CPC. See also the newly
introduced section 265A, 265B, 265C CPC.

(e) Evidence includes exhibits as held in the case of:

• Chong Ah Chai & Others v PP (1979) 2 MLJ 262
Criminal Procedure 301

(f) On ‘opening statement’, take note of section 174(a) CPC.

(g) ‘need not open the case but immediately produce evidence’, contrast with
High Court trial procedure at Section 179(1) CPC.

(h) Once the witness, who is about to give evidence, has taken oath or affirms in
court he shall tell the truth, is bound to do so until completion of his evidence.
If he intentionally lies, he runs the risk of comitting perjury. Take note of
section 178, 191 of the Penal Code.

5. Paragraph (d)
(a) Both paragraph (c) and (d) refer to evidence to be adduced by the
prosecution or a complainant to a private summons.

(b) Complainant - section 133 CPC

• Muharam bin Anson v PP (1981) 1 MLJ 222

(c) Must the prosecution call all witnesses from whom statements are taken in the
course of investigation to testify in court? If the prosecution does not do so,
does it run the risk of an adverse inference to be drawn against it under sction
114 (g) Evidence Act 1950?
• Adel Muhammad El Dabbah v AG for Palestine (1944) AC 156
• Teh Lee Tong v PP (1956) MLJ 194
• Sia Soon Suan v PP (1966) 1 MLJ 116
• Abdullah Zawawi v PP (1985) 2 MLJ 16
• Mohd Osman bin Pawan v PP (1989) 2 MLJ 110
• Abdul Jalil bin Abdul Sattar v PP (1991) 2 MLJ 194

6. Paragraph (e)
(a) Take note of sections 258 and 270 CPC
Criminal Procedure 302

(b) Cross examination can be mastered by constant practise and experience.

Whenever a witness is not cross examined, his evidence is accepted, as in:
• Abang Abdul Rahman v PP (1982) 1 MLJ 346

(c) Impeachment procedure as to the credit of a witness is provided for in section

155 of the Evidence Act 1950 (Act 56) read together with section 145 of same
Act.

(d) Once the credibility of a prosecution witness is impeached by the party calling
him (Prosecution), can he still be cross examined by the other side (Defence)?
There are two (2) views by the Federal Court as seen in:
• PP v Munusamy (1980) 2 MLJ 133
• Dato Mokhtar Hashim v PP (1983) 2 MLJ 232

(e) Question put to witness during cross-examination and its effect:

• Mahavir Singh v State of Haryana (2015) 3 CLJ 1009 (SC India)
• Article: Putting and Suggesting in Cross-Examination (1984) 1 MLJ ix By
Justice Mahadev Shankar

7. Paragraph (f)

(a) “a prima facie case” and paragraph (h) (iii)

• PP v Chin Yoke (1940) MLJ 37
• PP v Dato’ Seri Anwar Ibrahim (No. 3) (1999) 2 CLJ 215
• Looi Kow Chai v PP (2003) 2 MLJ 65 (CA)
• Balachandran v PP (2005) 2 MLJ 301 (FC)
• PP v Mohd Radzi Abu Bakar (2005) 6 MLJ 393
• PP v Mohd Aszzid Abdullah (2008) 1 MLJ 281
• Olier Sheikh Awoyal Shekh v PP (2017) 2 CLJ 141 (FC)
Criminal Procedure 303

(b) Submission on no case to answer seen in:

• Lam Heng v R (1937) MLJ 134
• Mahinder Singh v PP (1941) MLJ 230
• Manickam v R (1948) MLJ 185
• Parnaby v R (1953) MLJ 163
• Monteiro v R (1964) MLJ 338
• PP v Chong Boo See (1988) 3 MLJ 292
• Low Thim Fatt v PP (1989) 1 MLJ 304
• Zaidon Shariff v PP (1996) 4 CLJ 441
• PP v Govindan a/l Chinden Nair (1998) 2 MLJ 181
• PP v Lee Kwan Hoh (2009) 5 CLJ 631 (FC)

8. Paragraph (g)
• Kuppusamy v PP (1948) MLJ 25
• PP v Goh Kee Chuan (1967) 1 MLJ 174
• Chu Chee Peng v PP (1973) 2 MLJ 35
• PP v HLS Pereira (1977) 1 MLJ 12
• PP v Mat Radi (1982) 1 MLJ 221
• PP v Karumah (1980) 2 MLJ 102
• PP v Tan Kim San (1980) 2 MLJ 98
• PP v Ismail (1982) 2 MLJ (B) 5
• PP v Mohamed Said (1984) 1 MLJ 50
• PP v Zainudin (1986) 2 MLJ 100
• Khoo Hi Chiang v PP (1994) MLJ 265
• PP v Zalili bte Mustapha (2010) 1 MLJ 666

9. Paragraph (h) (i) & (ha) (3 electives)

(a) Right of accused to be defended – section 255 CPC

• Mohd Hani bin Md Sharif v PP (2011) 5 MLJ 89
• Ogbodo Sunday Tochukwan v PP & other appeals (2016) 9 CLJ 686 (CA)
Criminal Procedure 304

(b) To give sworn evidence from the witness box

(c) To give unsworn statement from the dock

• Toh Ah Loh v R (1949) MLJ 54
• Lee Boon Gan v Reg (1954) MLJ 103
• Ip Ying Wah v PP (1958) MLJ 34
• Wong Heng Fatt v PP (1959) MLJ 20
• Er Ah Kiat v PP (1965) 2 MLJ 238
• Ng Hoi Cheu v PP (1968) 1 MLJ 53
• Mohd Salleh v PP (1969) 1MLJ 104
• PP v Sanassi (1970) 2 MLJ 198
• R v Kwek Kim Chuan Braddell Common Gaming Houses Cases
• A Zahan b Mohd Aminallah v PP (2005) 5 MLJ 334

(i) As to whether he can refer to written notes when making such a dock
statement?
o See discussion by Joseph (1976) 2 MLJ ii

(ii) As to whether the dock statement is completely worthless is discussed

in:
o R v De Vere (1981) 3 A11 ER 473

(iii) Weight of dock statement seen in:

o Lee Boon Gan v R (1954) MLJ 103
o Udayar Alagan v PP (1962) MLJ 39
o R v Frost (1964) 48 Cr. App. Rep 284
o Er Ah Kiat v PP (1965) 2 MLJ 238
o DPP v Walker (1971) 1 WLR 1090
o Lee Wong Tiang v PP (1972) 1 MLJ 50
o Sivalingam v PP (1974) 2 MLJ 27
o Nguyen Quoc Viet v PP (2016) 1 CLJ 365 (CA)
Criminal Procedure 305

(iv) Other cases:

o Rajjaua v State (1959) AIR Allahabad 718
o Lim Chin Poh v PP (1969) 2 MLJ 159
o Chua Sek Leng v R (1953) MLJ 25
o Ahmad Faizal Ali bin Anlad Ali & Ors v PP (2010) 2 MLJ 547
Dato Seri Anwar Ibrahim v PP & Another Appeal (2015) 2 CLJ 145
(FC)

(d)To remain silent

(i) Section 257 (1) CPC

o Ogbodo Sunday Tochukwan v PP & other appeals (2016) 9 CLJ
686 (CA)
o Awaludin Bin Suratman & Ors v PP (1993) 2 MLJ 131

(ii) Section 257(2) CPC

o Shaari v PP (1963) MLJ 22
o Heng Cheng Huat v PP (1982) unreported
o Por Choo Aik v PP (1993) 2 MLJ 131
o Lokhman bin Abu v PR (2001) 1 AMR 512 (CA)
o Some English cases:
▪ R v Mutch (1972) 57 Cr APP R 196
▪ R v Harris (1987) 84 Cr APP R 75
▪ Murray v DPP (1993) 178 GLR 217
▪ Weissensteiner v R (1993) 178 GLR 217

(iii) Whether adverse inference may be drawn against accused if he elects

to remain silent?
o Pang Chee Meng v PP (1992) 1 MLJ 137
o Also see Article: Jeffery Pinsler (1992) 1 MLJ clxxxvii
Criminal Procedure 306

10. Paragraph (i)

(a) Read with Section 158 (2) and Section 173 (a) CPC. Amended charge to be
explained to accused.
• Lim Thuan Hong v Jebsen (1885) 4 Ky 79
• Singah M. Hussain v PP (1973) 2 MLJ 709
• Hee Nyuk Fook v PP (1988) 2 MLJ 360

(b) If accused pleads guilty to an amended charge, evidence recorded thus far
from the prosecution will be the premise on which court will record and accept
a plea of guilty.

(c) If the accused does not plead guilty to the charge as amended, he shall be
called upon to enter on his defence. See section 173 (j) (ii)

11. Paragraph (j)

• Sim Kee Tong v R (1948-49) MLJ 151
• Chong Fah Hin v PP (1949) MLJ 119; (1948-49) MLJ Supp 139
• Sivalingam v PP (1974) 2 MLJ 27

12. Paragraph (k)

• Whether such written statement filed can be considered as evidence?
o R v Tuti Babu (1946) AIR Patna 373

13. Paragraph (l)

(a) If magistrate refuses to summon any particular witness, he must give reasons
in writing containing the grounds for such refusal.
• R v Kura ILR 26 Bombay 418
• Harbans Singh Sidhu v PP (1973) 1 MLJ 4

(b) Duty of court to ensure due execution of the summons and warrant.
• Bissay v R (1921) Allahabad 142
Criminal Procedure 307

(c) Expenses to be deposited in court following section 173 (l) (ii).

• Venkateswara Rao v State of Andhra Pradesh (1997) Cr. LJ. 255 (AP)

(d) Disobedience to a subpoena is punishable under section 174 Penal Code.

• R v Tan Sim Ha (1886) 4 Ky 156

(e) If an accused conducts his own case, he has a right to re-examination after
his cross-examination with a view to amplify or clarify answers extracted from
him under cross examination or to reconcile any discrepancies that may have
arisen
• PP v Lee Pak (1937) MLJ 265

(f) On recall of witness, see:

• Section 417 (4)
• Section 425 CPC
• Section 162, 173 (j) (iii) CPC (defence stage)
• Section 138 (4) Evidence Act 1950
• Balfour v PP (1948/1949) MLJ Supp 8
• Rex v Bakar bin Sahat (1951) MLJ 202
• Ramasamy v Regina (1955) MLJ 95
• Ramli bin Kecik v PP (1986) 1 CLJ 308
• Phon Nam v PP (1988) 3 MLJ 415; (1991) 2 MLJ 500PP v Abdul Rahim
bin Abdul Sattar (1990) 3 MLJ 188

(g) Section 254 CPC – PP decline to prosecute further

• PP v Lee Chan Sang (1989) 1 MLJ 224

(h) Section 273 - delivery of judgment

(i) Section 276 - judgement in alternative

Criminal Procedure 308

(j) Section 278 - alteration of judgement

• Voon Ah Shoon v PP (1979) 2 MLJ 131
• Datuk Harun v PP (1981) 1 MLJ 47; (1981) 2 MLJ 72
• Ong Keng Tat v PP (2015) 1 CLJ 506 (CA)
• Yap You Jee v PP & Other Appeals (2015) 7 CLJ 897 (CA)

(k) Section 279 and 280 – Judgement

14. Paragraph (m)

(a) Final stage of a criminal trial

(b) Final submission made pursuant to section 174 (c)

(c) At the end of submission, it is the duty of the court to consider evidence of
both prosecution and defence.
• Mat v PP (1963) MLJ 263
• Nagappan v PP (1988) 1 CLJ 283
• Mohamed Radhi bin Yaakob v PP (1991) 3 MLJ 169
• Loo Ting Meng v PP (2014) 1 CLJ 188 (FC) – whether defense of bare
denial is sufficient to cast a reasonable doubt on prosecution case.

(d) Between finding of guilt and sentence a number of matters have to be

considered:
(i) After finding of guilt is made, the accused can be convicted
(ii) Submission by prosecution on the previous conviction and previous
record of accused
(iii Sections 400, 253, 442 CPC
(iii) Plea in mitigation by accused
Criminal Procedure 309

(e) See section 173A and 294 CPC

Probation Report – necessary procedure in Court for Children, see section 90
(15) of Child Act 2001

15. Paragraph (n) and (o)

(a) Proceedings instituted via complaints by private person under section 133 CPC

(b) Compoundable offences - section 260 and column 6 of First Schedule CPC
o Kuruppusamy v PP (1948) MLJ 25

16. Salient Issues in Criminal Trials

(a) Section 402B CPC – Proof by written statement. Take note of amendment
to section 402B (1) CPC.

The original provision reads as:

“402B (1) In any criminal proceedings, a written statement by

any person shall, [with the consent of the parties to the
proceedings and] (now deleted) subject to the conditions
contained in subsection (2), be admissible as evidence to the like
extent as oral evidence to the like effect by that person.” …

The amended provision is –

“402B (1) In any criminal proceedings, a written statement by

any person shall, subject to the conditions contained in
subsection (2), be admissible as evidence to the like extent as
oral evidence to the like effect by that person.” …
Criminal Procedure 310

(i) As to whether the statement made has to be in compliance with

subsection 402(B) (2):
• Mehdi Keramatviyarsagh Khodavirdi v PP (2015) MLJ 14 (CA)
• Rossaria Nuekaew v PP (2017) 8 CLJ 503 – whether written
statement to be admitted as evidence in court must be read
aloud at trial and whether the conditions to be complied with
under section 402B (6) is directory or mandatory.

(ii) As to whether consent of accused required before Witness

Statement admitted as evidence:
• Kingsley Obi Dike v PP (2015) 7 CLJ 1039

(b) Section 402C CPC – Proof by formal admission

(c) End of Case - Submission

(i) Section 174 (c) and section 173 (m) (for Summary Trial). Distinguish
with section 179 and section 182 and 182A CPC for High Court Trials

(ii) On submission of no case to answer at the end of prosecution case

• Mahinder Singh v PP (1941) 1 MLJ 230
• Chong Boo See v PP (1988) 3 MLJ 292
• PP v Lee Kwan Hoh (2009) 5 CLJ 631 (FC)

(iii) Submission at the end of defence case: Section 174(c) CPC

• Diana Nelson Tanajo v PP (2010) 3 CLJ 1 (FC)
• Lee Kwan Woh v PP (2009) 5 MLJ 301 (FC)

(iv) Submission at the end of case

• Mahadi v PP (1970) 1 MLJ 16
• Nagappan v PP (1988) 1 CLJ 283
Criminal Procedure 311

• Mohamad Radhi bin Yaakob v PP (1991) 3 MLJ 169 (SC)

• Surandran a/l Rajaretnam v PP (1998) 2 MLJ 49

(d) Witnesses

(i) Must every witness from whom a police statement has been recorded be
called to testify?
• Sia Soon Suan v PP (1966) 1 MLJ 116
• Abdullah Zawawi v PP (1985) 2 MLJ 16
• Teoh Hoe Chye v PP (1987) 1 MLJ 220
• Mohd Osman bin Pawan v PP (1989) 2 MLJ 110
• Abdul Jalil bin Abdul Sattar v PP (1991) 2 MLJ 194

(ii) Adverse inference under section 114 (g) Evidence Act 1950; when to
invoke?
• Amri Ibrahim & Anor v PP (2017) 1 CLJ 617 (FC)

(iii) Recall of witness

• Issues here involve a witness; witness who has testified earlier but
has to be recalled for further testimony.

• Relevant provisions section 173 (j), section 173 (l) CPC - recall by
the accused

• Section 162 CPC empowers court to allow prosecutor or accused to

re-summon or recall a witness after charge is amended.

• Section 173 (c) and 173 (d) CPC are silent on recall during
prosecution stage. In practice it is allowed if it serves the interest
of justice.
Criminal Procedure 312

o Yap Kok Meng v PP (1974) 1 MLJ 108

• Other provisions are section 417 (4) CPC, section 425 CPC and
section 138 (4) Evidence Act 1950.

• Some case laws:

o Balfour v PP (1948 - 1949) MLJ Supp. 8
o Kee Seng Nee v R (1949) MLJ 210
o Bakar Sahat v PP (1951) MLJ 202
o Ramasamy v R (1955) MLJ 95
o Tan Lee Teng v R (1956) MLJ 94
o Loke Poh Siang v PP (1957) MLJ 107
o Samsudin v PP (1962) MLJ 405
o PP v Abdul Hamid (1969) 1 MLJ 53
o PP v Teh Cheng Poh (1980) 1 MLJ 251
o Muharam bin Anson v PP (1981) 1 MLJ 22
o PP v Boo Chew Hin (1983) 1 MLJ 33
o Kee Lit Tion v PP (1984) 1 MLJ 306
o Abdullah Zawawi v PP (1985) 2 MLJ 16
o Ramli b Kecik v PP (1986) 2 MLJ 33
o Phon Nam v PP (1987) 2 MLJ 262; (1988) 3 MLJ 306
o Abdul Jalil bin Abdul Sattar v PP (1991) 2 MLJ 188

(e) Expert witnesses

(i) Section 399 CPC

(ii) Period of 10 days’ notice as discussed in:

o Goh Tong v R (1953) MLJ 251
o Wong Kok Keong v R (1955) MLJ 13
o Other cases:
Criminal Procedure 313

▪ Saw Thean Teik v Reg (1953) MLJ 124

▪ Mohamed bin Abdul Rahman v PP (1979) 1 MLJ 252
▪ Dato Mokhtar bin Hashim v PP (1983) 2 MLJ 232

▪ Pavone v PP (1986) 1 MLJ 423

▪ Chah Siew Kok v PP (1987) 1 CLJ 876
▪ Ong Baw Seng v PP (1987) 2 MLJ 208
▪ Ooi Lean Chai v PP (1991) 1 MLJ 189
▪ Hasibullah Mohd. Ghazali v PP (1993) 3 MLJ 321
▪ Muhammad bin Hassan v PP (1998) 2 MLJ 273
▪ Shahrizal Abdul Ghani v PP (2014) 1 CLJ 70 (CA)
▪ Yii Ming Tung v PP (2014) 9 CLJ 1102 (CA) – whether a
medical doctor within meaning of section 399 (2) (b) CPC
▪ Dato Seri Anwar Ibrahim v PP & another appeal (2015)
▪ 2 CLJ 145 (FC)
▪ Naveen Raj Naidu Gunasegaran v PP & another appeal
(2015) 3 CLJ 1082 (CA)
o See also section 399A CPC and the newly introduced section
399B CPC.

(iii) Whether accused must call witness to support his case?

• Abu Bakar v Reg (1963) MLJ 288
• Tan Foo Su v PP (1967) 2 MLJ 19
• Liew Siew v PP (1969) 2 MLJ 233
• Roslan bin Karim v PP (1975) 1 MLJ 84
• Sathiyamurthi v Penguasa/Komandan Pusat Pemuliharaan
Karangan Kedah (2006) 6 MLJ 593

(f) Questions by Court

• Section 256 CPC
o R v Gilson and Cohen (1944) 29 Cr App R. 174
Criminal Procedure 314

o Gan Kok Ling v PP (1969) 1 MLJ 309

o Lim Chin Poh v PP (1969) 2 MLJ 159
o Roseli bin Amat & Others v PP (1989) 2 MLJ 65
o Teng Boon How v PP (1993) 2 AMR 47 333

(g) View of place

• R v Lee Ah Phua (1950) MLJ 54
• Harbans Singh v R (1954) MLJ 158
• Chong Chai & Ors v PP (1979) 2 MLJ 262

(h) Adjournment
• Section 259 and 176(2) (o) CPC
o R v Chin Ah Chong (1953) MLJ 10
o PP v Low Ying Ping (1960) MLJ 306
o Mohamed Ekram v PP (1962) MLJ 129
o Lee Fook San v PP (1963) MLJ 371
o PP v H.L.S. Pereira (1977) 1 MLJ 12
o PP v Mokhtar bin Abdul Latif (1980) 2 MLJ 51
o PP v David Noordin (1980) 2 MLJ 146
o PP v Tan Kim San (1980) 2 MLJ 98
o PP v Karumah (1980) 2 MLJ 102
o PP v Mohamed Said bin Jarame (1984) 2 MLJ 201
o PP v Zainudin (1986) 2 MLJ 100
o Ogbodo Sunday Tochukwan v PP & other appeals (2016) 9 CLJ
686 (CA)
o Awaludin Suratman v PP (1992) 1 MLJ 416 (HC)

(i) Compoundable offences

(i) Section 260 CPC
(ii) Column 6 First Schedule CPC
Criminal Procedure 315

• State of Madhya Pradesh v Deepak & Others (2015) 6 CLJ 997

(SC India)
• PP lwn Norzian (1995) 3 SLR 462
• Re Chang Cheng Hoe & Ors (1966) 2 MLJ
(iii) Order of discharge not amounting to an acquittal as in Kuppusamy v PP
(1948) MLJ 25

(iv) Breach of payment of compound and the remedy available

(v) Two types of compoundable offences as in Part A and Part B of in
section 260 CPC
(vi) Effect of an agreement to compound
Whether doctrine of autrefois acquit applicable?

(j) Part Heard Cases - Change of Magistrate

(i) Section 261 CPC

o Muhammad Anuardin Bin Abdul Salam v PP (1966) 3 MLJ 298
o Muhammad Amin Bin Abdullah v PP (1995) 1 MLJ 612

(ii) Trial De Novo

• Chelliah v PP (1941) MLJ 17
• Mohd Idris bin Hj Mohd. Said v Rex (1949) MLJ 31
• Mohamed Idris v Rex (1949) MLJ 31
• Teay Wah Cheong v PP (1964) MLJ 21
• PP v Kulasingam (1974) 2 MLJ 26
• Oh Keng Seng v PP (1976) 1 MLJ 143
• PP v Goh Chooi Guan (1978) 2 MLJ 169
• PP v Mohd Jon (1993) 1 AMR 9 or 1 MLJ 133
• Hj Ibrahim bin Wahab v Peguam Negara & Lain-lain (1995) 1 MLJ
493
• Yap You Jee v PP & other appeals (2015) 7 CLJ 897 (CA)
Criminal Procedure 316

• Lai Weng Keat v PP (2015) 9 CLJ 957 (FC)

• Pathmanathan Kumarasamy v PP (2017) 7 CLJ 208 – is non-
compliance with section 261 CPC curable?

(k) Mode of Taking Evidence

• Section 264 up to Section 272
• Section 272A & 272B

(l) Recording of Proceedings by Mechanical Means:

• Sections 272C, 272D, 272E, 272F, 272G, 272H, 272I, 272J & 272K CPC
• Abdul Rahim Zamani Mohammad v PP (2015) 8 CLJ 990 (CA)

(m) Demeanour of Witness

• Section 271 CPC
• Tara Singh v PP (1949) MLJ 88
• Tengku Mahmood v PP (1974) 1 MLJ 110
• PP v Ku Lip See (1981) 1 MLJ 258
• David Anthony v PP (1985) 1 MLJ 453
• PP v Mohd Jon (1993) 1 MLJ 133

(n) Disposal of Exhibits

• Chapter 41 CPC
• Section 406A to 416 CPC
• Section 406 and 407 CPC and the newly introduced 407B CPC.
o Ooi Ching Seng v PP (1979) 1 MLJ 267
• Section 413 CPC
o Hong Leong Bank Bhd v PP (2016) 9 CLJ 672 (CA)

➢ See also amendment to section 414 CPC and the newly substituted
section 415 CPC.
Criminal Procedure 317

(o) Defence of Alibi

• Section 402 A CPC
• Cases decided prior to amendment to CPC vide Act A1422:
o PP v Lim Chen Lan (1981) 2 MLJ 41
o Krishnan v PP (1981) 2 MLJ 121
o Rangapula v PP (1982) 1 MLJ 91
o Dato Mokhtar Hashim v PP (1983) 2 MLJ 232
o Yau Heng Fang v PP (1985) 2 MLJ 335
o Illian v PP (1987) 1 MLJ 421
o Hussin bin Sillit v PP (1988) 2 MLJ 237
o Vasan Singh v PP (1988) 3 MLJ 412
o PP v Azilah Hadri & Anor (2015) 1 CLJ 579 (FC)

(p) Judgment
• Section 273 – 280 CPC
(i) Writing Grounds of Judgment
o PP v Sykt Perusahaan Makanan Haiwan Bekerjasama (1969) 2 MLJ
250
o Chuah Beow Huat v PP (1970) 2 MLJ 29
o PP v Abang Abdul Rahman (1982) 1 MLJ 346
o Mohd Din v PP (1985) 2 MLJ 251
o Por Choo Aik v PR (1993) 2 MLJ 131
o Lorraine Phylis Cohen v PP (1989) 2 MLJ 288

• Strength of a judgment lies in its reasoning and should be convincing.

Intolerable delay in writing grounds of judgment seen in:
o Voon Chin Fatt v PP (1949) 15 MLJ 96
o Ling Ah Hun v PP (1960) 26 MLJ xlv
o TN Nathan v PP (1978) 1 MLJ 34
o Tan Hun Wah v PP (1994) 1 MLJ 382
o Some articles:
Criminal Procedure 318

▪ Attributes of a Good Judgment (1951) MLJ xxxii

▪ The Quality of Judgment (1970) 2 MLJ xlv

(ii) Pronouncement of Judgment

• In open court - Section 273 CPC
o Lim Beh v Opium Farmer (3 Kyshe 10)

• Judgment in the alternative – section 276 CPC, also refer section

72 Penal Code.
o Ramamoorthy v PP (1948) MLJ 43
o Govindasamy v PP (1948) MLJ 46
o Scow Keh Meng v R (1952) MLJ 215
o R v Koh Kwong (1953) MLJ 5
o Re Tan Ah Chuan (1954) MLJ 135

(iii) Alteration of Judgment

• Section 278 CPC
• Clerical error or other mistakes
o Not proper to supplement once the first judgment is
delivered
▪ Lorraine Phylis Cohen and Anor v PP (1989) 2 MLJ 288
▪ See also Ong Keng Tat v PP (2015) 1 CLJ 506 (CA) –
issue of double judgment- brief judgment delivered first
– whether considered as signed written judgment.
o Power to alter or review judgment by the High Court is to be
exercised sparingly only when there is an obvious error or
mistake which if not corrected would lead to miscarriage of
justice.
▪ Goh Ah San v R (1938) MLJ 95
▪ PP v Heng You Nang (1949) MLJ 285
Criminal Procedure 319

▪ State of Bombay v Geoffery Manners and Co (1951)

AIR Bom 49
▪ In re Harrisons Share under a settlement (1955) Ch 260
CA
o Whether Federal Court or Court of Appeal can amend a
judgment?
▪ Re Swire (1885) 30 Ch D 239
▪ Thynne v Thynne (1955) 3 All ER 129
▪ R v Michael (1976) 1 QB 414
▪ Voon Ah Shoon v PP (1979) 2 MLJ 131
▪ Saville (1980) 1 All ER 861
▪ Chuah Han Mow v Supt. of Pudu Prison (1980) 1 MLJ
219
▪ Re Datuk Harun Hj Idris (1981) 1 MLJ 47
▪ Datuk Harun bin Hj Idris v Officer in Charge Pudu
Prison (1981) 2 MLJ 72

XIII. HIGH COURT TRIALS

1. Chapter XX: sections 178 – 183 CPC

(a) Section 178 CPC - when the high court is ready to commence the trial –

(i) A criminal case is transmitted to the high court for trial from the
subordinate court. Transmission of a case for trial is pursuant to
section 177A CPC. Likewise, there are provisions in the DDA 1952
(section 39B (3) and 41A) and FIPA 1971 (section 11).
• PP v An Kee Cheng & Anor Case (2006) 5 CLJ 427

(ii) A criminal case may be transferred to the high court from the
subordinate court for trial. Transfer of a case for trial is pursuant to
Criminal Procedure 320

section 177, 417 or 418A CPC.

(iii) All rules and procedure observed when recording a plea of guilt in a
summary trial is equally applicable to a high court proceeding when
an accused person pleads guilty:
• Lee Weng Tuck & Anor v PP (1989) 2 MLJ 143
• Tang Hee Hing v PP (1991) 1 MLJ 402

(b) Section 179 CPC

(i) Section 179 (1) CPC
(ii) Opening statement by prosecution
• PP v Lim Teong Seng (1946) MLJ 108PP
• Yap Seow Keong v PP (1947) MLJ 90
• PP v Balasubramaniam (1948) MLJ 119
• Er Ah Kiat v PP (1965) 2 MLJ 238
• Yap Chai Chai & Anor v PP (1973) 3 MLJ 217
• Lim Seng Chuan v PP (1977) 1 MLJ 171
• Wong Kam Ming v Queen (1979) 1 All ER 939
• PP v Lee Eng Kooi (1993) 2 MLJ 322
• Junaidi b Abdullah v PP (1993) 3 MLJ 217
• Khoo Hi Chiang & Anor v PP (1994) 1 MLJ 265
• PP v Sa'ari Jusoh (2007) 2 CLJ 197 FC
• Timhar Jimdani Ong & Anor v PP (2010) 3 CLJ 938
• Thien Teck Soon v Pendakwa Raya (2011) 4 AMR 173 CA
• Chieng Chung Ting v PP (2015) 1 CLJ 765 – reliance upon
presumption of possession under section 37(d) DDA 1952 in
opening statement of case; whether precluded from presenting
evidence of actual possession
Criminal Procedure 321

(c) Section 180 CPC

• PP v Chin Yoke (1940) MLJ 47
• Looi Kow Chai v PP (2003) 2 MLJ 65 (CA)
• Balachandran v PP (2005) 2 MLJ 301 (FC)
• PP v Mohd Radzi Abu Bakar (2005) 6 MLJ 393
• PP v Kenneth Fook Mun Lee & Another Appeal (2006) 1 CLJ 499 CA
• PP v Hafiszamri Ahmad & Anor (2007) 1 CLJ 285 CA
• PP v Hanif Basree Abdul Rahman (2007) 2 CLJ 33 CA; (2008) 4 CLJ
1 (FC)
• PP v Lee Kwan Hoh (2009) 5 CLJ 631 (FC) – fundamental right of
the accused to make a submission at the end of prosecution case.

(d) Section 181 CPC

• Velu Thevar & Others v Emperor (1932) AIR Rang 90
• Teng Boon How v PP (1933) 2 AMR 47
• Jones v National Coal Board (1957) 1 QB 55
• Yau Heng Fang v PP (1985) 2 MLJ 33
• Namasiyiam v PP (1987) 2 MLJ 336
• Akin Khan v PP (1987) 2 MLJ 217

(e) Section 182 CPC – Right to reply by the prosecution

(f) Section 182A CPC – Procedure to to be adopted by the court at the

conclusion of trial
• Mahadi v PP (1970) 1 MLJ 16
• Nagappan v PP (1988) 1 CLJ 283
• Mohamad Radhi bin Yaakob v PP (1991) 3 MLJ 169 (SC)
• Diana Nelson Tanajo v PP (2010) 3 CLJ 1 (FC)

(g) Section 183 CPC

• L.P. Cohen v PP (1989) 2 MLJ 288
Criminal Procedure 322

(i) Disqualification by Judge to hear a case:

• PP v Lau Tuck Weng & Anor (1988) 3 MLJ 217
• Ng Yin Kwok v PP (1989) 3 MLJ 166

(ii) Evidence called by the court:

• Section 425 CPC
o Ramli bin Kechik v PP (1986) 2 MLJ 33
o PP v Phon Nam (1988) 2 MLJ 415

2. Trial Procedure where accused is suspected to be of unsound mind:

• Sections 342 - 352 CPC
o PP v Dat ak Tuni (1991) 1 MLJ 208
o PR v Zainal Abidin bin Mohd Zaid (1993) 1 CLJ 213
o PP v Nageswari (1994) 3 MLJ 463
o PP v Ismail Ibrahim (1998) 2 CLJ 213
o Junaidi Bambang v PP (2011) 3 CLJ (CA)
o Hamzah Osman v PP (2017) 7 CLJ 273 (FC) – whether non-
compliance with section 342 (1) and 343 a mere irregularity?

XIV: COURT FOR CHILDREN

CHILD ACT 2001 (ACT 611)

1. Constitution and Jurisdiction – Section 11 Child Act 2001 (CA)

2. Place of sitting and persons who may be present in court for children – Section
12 CA
3. Period specified in any order made by Court for Children not to extend beyond
the date child attains the age of eighteen years – Section 13 CA
4. Court for Children may order detention etc to extend beyond the date child
attains the age of eighteen years – Section 14 CA
5. Restrictions on media reporting and publication – Section 15 CA
Criminal Procedure 323

6. Presumption of age – Section 16 CA

7. Trials of children to be in conformity with this Act – Section 83 CA
8. Bail – Section 84 CA
• KWK (A Child) v PP (2003) 4 CLJ 51
9. Separation of child from adult in police stations or court – Section 85 CA
10. Custody of child not discharged on bail after arrest – Section 86 CA
11. Submission of information by police officer after arrest – Section 87 CA
12. Trials – Sections 88 – 90 CA
13. Powers of Court for Children at the conclusion of the trial – Section 91 to 97
(a) See cases under the repealed Juvenile Courts Act 1947: (reference may
be made to the cases as the provisions are pari materia with CA)
• Tukiran bin Taib v PP (1955) MLJ 24
• Teoh Ah Kow v PP (1961) 1 MLJ 75
• Khairuddin v PP (1969) 1 MLJ 45
• Govindarajoo v Registrar of Criminals (1974) 1 MLJ 112
• Lim Hang Seoh v PP (1978) 1 MLJ 68
• Teo Siew Peng & Ors v PP (1985) 2 MLJ 125
• Re A Juvenile (1990) 1 CLJ 968; (1990) 1 MLJ 117
• PP v Yap Min Moie (1996) 1 MLJ 169
• Mogan v PP (2002) 2 AMR 2495

(b) Case under section 96 CA

• Muhammad Isa bin Aris & 3 Ors v PP (2011) 3 AMR 285
14. Probation – Sections 98-104 CA
15. Investigation, Arrest, Search, Seizure etc – Sections 109-116 CA

16. Saving of powers of the High Court to exercise its powers in the like manner as
exercised by a Court for Children under Act 611 in respect of a child, except
powers of a Court for Children exercised under sections 96 and 97 – section
117 CA
Criminal Procedure 324

XV: BAIL
CHAPTER XXVIII

1. Interpretation as to what is a ‘bailable offence’

• Section 2 CPC
• Column 5 First Schedule CPC

2. Bail Pending Trial

(a) Bailable offences - section 387 CPC

(i) Bail as of right – section 387 (1) CPC - see use of phrase “shall be
released on bail”
(ii) Section 387 (2) – refers to a ‘personal bond’ without sureties
(iii) Section 436 CPC – person released on bail to give address for
service
• R v Lim Kwang Seng & Ors (1956) 22 MLJ 178
• Sebastian v PP (1968) 2 MLJ 214
• Maja anak Kus v PP (1985) 1 MLJ 311
• Michael Raymond Taylor v PP (1989) 2 CLJ 539
• Mohd Jalil bin Abdullah & Anor v PP (1996) 5 MLJ 564
• Wong Kim Woon v PP (1999) 5 MLJ 114

(iv) Conditions cannot be imposed for bailable offences:

• PP v Dato’ Mat (1991) 2 MLJ 186

(b) Non-bailable offences - section 388 – refers to non-bailable offences – see

the use of the phrase “may be released on bail” – the court has discretion
to grant bail for such offences.

(i) Section 388 (1) CPC refers to three (3) types of accused persons,
namely accused of:
Criminal Procedure 325

• Non-bailable offences, including those punishable with death or

imprisonment for life, where there appear no reasonable
grounds for believing that he is guilty of the offence – the court
has discretion to release the accused on bail.

• Non-bailable offences punishable with death or imprisonment

for life, where there appear reasonable grounds for believing
that he is guilty of the offence – the court has no discretion to
allow bail

• Non-bailable offences punishable with death or imprisonment

for life, where there appear reasonable grounds for believing
that he is guilty of the offence but the accused is either:

(ii) Under the age of sixteen (16) years

• KWK (A Child) v PP (2009) 4 CLJ 51

(iii) A woman
• P. v Letchumy (1967) 2 MLJ 79
• Che Su bt Daud v PP (1978) 2 MLJ 162
• Samirah Muzaffar v PP (2019)
(iv) Sick
• Leow Nyook Chin v PP (1999) 1 MLJ 437 – the sickness must
involve a risk to life.

(v) Infirm
• PP v Dato' Balwant Singh (No. 1) (2002) 4 MLJ 427 (HC)

(vi) Section 388(2) CPC – where the police officer or court finds no
reasonable grounds for believing that the accused has committed a
non-bailable offence but there are sufficient grounds for further
Criminal Procedure 326

inquiry into his guilt, the accused shall, pending such inquiry, be
released on bail, or at the discreation of that officer or Court, on the
execution by him of a bond without sureties for his appreance as
hereinafter provided.

(vii) Other cases on non-bailable offences

• Re K S Menon (1946) MLJ 49
• PP v Wee Swee Siang (1948) MLJ 114
• PP v Mat Zain (1948-49) MLJ Supp 142
• Reg v Ooi Ah Kow (1952) MLJ 95
• Reg v Chan Choon Wong (1956) MLJ 95
• Chinna Karappan v PP (1962) MLJ 234
• Shanmugan v PP (1971) 1 MLJ 283
• Sulaiman bin Kadir v PP (1976) 2 MLJ 37
• Loy Chin Hei v PP (1982) 1 MLJ 31
• Phang Yong Fook v PP (1988) 1 MLJ 267
• Lim Kiap Khee v PP (1988) 1 MLJ 198
• Low Chit Bah v PP (1986) 1 MLJ 297
• PP v Abdul Rahim bin Haji Ahmad & Ors (1988) 3 MLJ 272

(c) Unbailable offences

(i) Firearms (Increased Penalties) Act 1971, section 12

(ii) Dangerous Drugs Act 1952 - section 41B

• Ho Huan Chong & Ors v PP (1980) 2 MLJ 289
• Loy Chin Hei v PP (1982) 2 MLJ 31
• PP v Chew Siew Luan (1982) 1 MLJ 119
• Leong Siew Hoong v PP (1988) 1 MLJ 396
• PP v Yap Sooi Kim (1989) 1 MLJ 44
• Leong Ying Ming v PP (1990) 2 MLJ 359 (HC); (1993) 1 AMR
11: 399; (1993) 1 MLJ 177
Criminal Procedure 327

• PP v Ilamaran (1992) 1 MLJ 672

(d) Bailors

(i) sections 390(1), 392, 393 CPC

• Valliamai v PP (1962) MLJ 280
• PP v Tangaah (No. 2) (1972) 1 MLJ 223
• Chang Kee Chien & Anor v PP (1980) 1 MLJ 183
• Richards (1988) 3 AER 406

(ii) Conditions may be imposed by court

• PP v Dato Mat (1991) 2 MLJ 186 – discretion of the court to
order an accused person to surrender his travel documents
• PP v Abdul Rahim bin Haji Ahmad (1988) 3 MLJ 272 – duty to
report at police station and restriction on movement of
accused; e.g. not to approach premises where complainant
lives
• PP v Dato Balwant Singh (2002) 4 MLJ 427 – to surrender
firearm and licence to the police; to remain indoors for a
stipulated time; not to be present at any open public places or
attend any public function save for religious and family
activities; not to leave town without leave of court

(iii) Objection to bail

• Dato Seri Anwar Ibrahim v PP (1999) 1 MLJ 321 – police
reports may be tendered to court made by potential witnesses
that directly implicate the accused with regards to tampering of
witnesses.

(iv) Status of an accused person

• Shaikh Karim & Ors v Emperor AIR (1926) Nag. 279
Criminal Procedure 328

• State v Mehboob Ali Khan (1956) Bom. 548

• PP v Dato Seri Anwar Ibrahim (1998) 4 CLJ 387

(v) Revocation of bail – a person released on bail may be arrested and

committed to custody at any stage of any proceeding
• section 388 (5) CPC
• Phang Yong Fook v PP (1988) 1 MLJ 267
• Wong Kim Woon v PP (1999) 5 MLJ 114 – where bail is
mandatory and is offered once under section 387(1) CPC, the
continuation of the bail must be based upon the continued
compliance of its terms and the withdrawal of it when it is
breached. For the sessions court to be obliged to extend fresh
bail after breach or abuse of the earlier bail, albeit on
enhanced terms, cannot be the interntion of Parliament (by
way of obiter).
o However, see the case of Mohd. Jalil bin Abdullah & Anor
v PP (1996) 5 MLJ 564 at page 568

3. Bail Pending Appeal: Sections 311, 315 CPC

• Appeal may be against an acquittal, a conviction and/or sentence.

• Section 315 CPC allows the High Court to issue a warrant of arrest
directing an accused to be arrested and brought before the Judge, who
may commit him to prison pending the disposal of the appeal against an
acquittal or admit him to bail. See also similar provisions - section 56A
and 88 CJA 1964.

• Section 311 CPC allows for the court to grant stay of execution on any
judgment, order, conviction or sentence pending appeal. Simultaneously
Criminal Procedure 329

the court may grant bail pending appeal. See also similar provisions -
section 57 and 89 CJA 1964.
o R v Tan Tee (1948) MLJ 153
o Sin Yung Chang v PP (1948-49) MLJ Supp 125
o Re Kwan Wah Yip & Anor (1954) MLJ 146
o Ralph v PP (1972) 1 MLJ 242
o Tan Boon Hock v PP (1979) 1 MLJ 236
o Ganesan v PP (1983) 2 MLJ 369
o Ment & Ors v PP (1994) 1 MLJ 201
o Yusof bin Mohamed v PP (1995) 3 MLJ 66
o PP v Norman Ismail (2008) 5 CLJ 261 CA
o Bird Dominic Jude v PP (2014) 4 CLJ 133 FC

4. Application to a Judge of the High Court

(a) Section 389 – by way of notice of motion/application supported by an
affidavit; could be with a certificate of urgency.
(b) Speedier mode as opposed to lodging an appeal pursuant to section 394
CPC
• Re K S Menon (1946) MLJ 49
• Reg v Ooi Ah Kow (1952) MLJ 95
• Sulaiman bin Kadir v PP (1976) 2 MLJ 37
• Zulkiflee bin Hassan v PP (1987) 2 MLJ 527; (1990) 2 MLJ 215
• PP v Dato' Mat Shah (1991) 2 MLJ 186; (1991) 2 MLJ 125
• Soo Shiok Liong v PP (1993) 2 MLJ 381
• Mohan v PP (2002) 1 MLJ 438

5. Appeal against a decision on bail

• Section 394 - appeal to High Court

o Sulaiman bin Kadir v PP (1976) 2 MLJ 37
o Chang Khee Chien v PP (1980) 1 MLJ 183
Criminal Procedure 330

o Maleb bin Su v PP (1984) 1 MLJ 311

o PP v Abdul Rahim bin Hj Ahmad & Ors (1988) 3 MLJ 272
o Mohamed Razip v PP (1988) 1 MLJ 84
o Dato Mat v PP (1991) 2 MLJ 186

6. Revision of an order of bail granted by the subordinate court

• High Court Judge exercising revisionary power under section 323 CPC and
decides under section 325 CPC
o PP v Kamal Hisham Jaafar (2016) 1 CLJ 363 (HC) confirmed by the
Court of Appeal

7. Provision as to Bonds: Chapter 40 CPC: Section 403 to 406 CPC

• Forfeiture of bond under section 404 CPC

o Khor Hong Guan v R (1950) MLJ 85
o R v Chow Fook Loy (1951) MLJ 137
o PP v Ahmad bin Khasiran (1951) MLJ 108
o Khor Swee Khim v PP (1953) MLJ 117
o Valliamai v PP (1962) MLJ 280
o Khor Ewe Suan v PP (1964) MLJ 220
o Ramlee v PP (1969) 1 MLJ 42
o Datuk Hj Harun bin Hj Idris & Ors v PP (1978) 1 MLJ cliii
o PP v Chou Tai Chuan & Anor (1988) 1 MLJ 511
o Yap Yin Kok v PP (1988) 1 MLJ 237
o Re Ling Yew Huat & Anor (1990) 2 MLJ 124
o PP v Parkash Kaur a/p Sandhu Singh & Anor (1995) 1 AMR 482
o Aone & Ors v Public Prosecutor (2000) 3 MLJ 614
o Royaya bte Abdullah & Anor v PP (2005) 5 CLJ 398 (HC)
Criminal Procedure 331

8. Bail – Child Act 2001 – Sections 84, 85 and 86

See also :
• S.P. Annamalai, Bail Pending Appeal (1972) Mal LR 304
• S. Chandra Mohan, ‘Sulaiman bin Kadir – Bail in offences punishable with
death or imprisonment for life’ – (1977) JMCL 311
• S. Chandra Mohan, ‘Bail in Singapore’ – (1978) JMCL 378
• Datuk Haji Harun bin Haji Idris (1978) 1 MLJ cliii
• ‘To bail or not to bail – that is the question’ (1981) 1 CLJ 108

XVI: CHARGES

1. Purpose of charge and general principles

• Lim Beh v Opium Farmer (1842) 3 Ky 110
• R v Mohamed Humayoon Shah (1874) 21 W.R. Co 72
• Jager Singh v PP (1936) MLJ 114
• PP v Lee Pak (1937) MLJ 265
• Ahmad Shah Yassin v PP (1952) MLJ 28
• PP v Leong Yoon Meow (1953) MLJ xxxv
• PP v Syed Bakri (1955) MLJ xvii
• PP v Lim Yoo Hock (1984) 1 MLJ 309
• PP v Ahmad bin Shafie (1988) 1 MLJ 255
• Pang Neng Tiong v PP (1988) 1 MLJ 339
• PP v Margarita de Cruz (1988) 1 MLJ 539
• Zulkiflee bin Mohd. Dom v PP (1997) 4 MLJ 161
2. Form of Charges: Sections 152, 153 and section 421 CPC
• Low Kiat Leng v PP (1966) 1 MLJ 215
• Ho Ming Siang v PP (1966) 1 MLJ 252
• Hashim bin Mat Isa v PP (1970) 1 MLJ 14
• Yoh Meng Heng v PP (1970) 1 MLJ 14
• PP v Oh Keng Seng (1979) 2 MLJ 174
• Oh Keng Seng v PP (1980) 2 MLJ 244
Criminal Procedure 332

• Ng Soon Luak v PP (1985) 1 MLJ 456

• PP v Margarita de Cruz (1988) 1 MLJ 539
• Arivesto Anderson & Anor v PP (2008) 6 CLJ 453
• PP v Jasli bin Amir Salleh (2011) 5 MLJ 188 (CA)

3. Errors: Section 156 CPC

• Ramayan v PP (1941) MLJ 161
• PP v Sim Moh Ee (1946) MLJ 88
• PP v Ginder Singh (1948) MLJ 194
• Wong Ah Kee v PP (1948 - 49) MLJ Supp 23
• Lee Teng Tai v PP (1953) MLJ 2
• Moh Yee Chong & Anor v PP (1955) MLJ 115
• Chan Chong v PP (1957) 1 MLJ 246
• Kui Teong v PP (1957) 1 MLJ 246
• PP v Choy Kok Kuan (1959) MLJ 80
• Pie bin Chin v PP (1985) 1 MLJ 234
• Periasamy & Anor v PP (1993) 2 MLJ 551
• PP v Sa’ari bin Jusoh (2007) 2 CLJ 197 (FC)
• Razali bin Samani v PP (2011) 5 MLJ 188 (CA)
• Hanif Mohamad Ali v PP (2016) 7 CLJ 487

4. Amendment: Sections 157-162, section 173(h) (ii) and (i) CPC

• PP v Oie Hee Koi (1968) 1 MLJ 148
• PP v Oh Keng Seng (1979) 2 MLJ 174
• Narain v PP (1987) 2 MLJ 392
• Hee Nyuk Fook v PP (1988) 2 MLJ 360
• Lee Beng Siang v PP (1992) 2 MLJ 190
• Lee Lee Chong v PP (1998) 4 MLJ 697
• Mismanga Lesaly v PP (2005) 1 CLJ 398 (CA)
• Kamaruddin Mat Diri v PP (2005) 3 CLJ 180 (CA)
• Fam Meng Siong v PP (2012) 7 CLJ 557 (CA)
Criminal Procedure 333

• PP v Wong Kuok Ming (2014) 9 CLJ 563

• Chieng Chung Ting (2015) 1 CLJ 765 (CA)

5. Joinder of Offences and Charges: section 163 CPC

(a) Section 163 CPC provides for two general rules

(i) First Rule: Every distinct offence must be mentioned in a separate

charge

• A distinct offence is one which has no connection with another.

Categories of distinct offences are:

o Offence under a different section of the Penal Code or any

other penal statute
o Offence under same section of the law but committed at a
different time or on a different occasion
o Offence committed against a different person or victim.
o See: Norzilan Bin Yaakob & Anor v PP (1989) 1 MLJ 442

• One exception to the rule above (that a distinct offence should be

mentioned in a separate charge) is found in section 153(2) CPC
o Shaik Hassan v PP (1940) MLJ 69
o PP v Mohamed Fathi (1979) 2 MLJ 75
o Shably Bin Ahmad v PP (1992) 2 CLJ 1269
o Mahendran a/l Manikam v PP (1997) 4 MLJ 273
o Aisyah Mohd Rose & anor v PP (2016) 1 CLJ 529

• When more than one offence is mentioned in a single charge and

the exception does not apply, the charge is said to be duplicated or
there is duplicity of charges.
Criminal Procedure 334

• Whether such duplicity is a mere irregularity curable under Section

422 CPC or otherwise is discussed in a series of cases
o Subramania Iyer v King Emperor (1901) 28 Indian Appeals
257
o Jagar Singh v PP (1936) MLJ 114
o Teh Peng Kim v Rex (1937) MLJ 173
o Yap Liow Swee v PP (1937) MLJ 223
o Muthen v PP (1947) 86
o Lim Mong Hong v Rex (1947) MLJ 94
o See Yew Poo v PP (1949) MLJ 131
o Chin Choy v PP (1955) MLJ 236
o Cheong Sik Kwan v PP (1959) MLJ 169
o Tai Chai Keh v PP (1979) 2 MLJ 173
o Jayaraman & Ors v PP (1979) 2 MLJ 88
o PP v Mohamed Fathi (1979) 2 MLJ 75
o Haji Abdul Ghani & Anor v PP (1981) 2 MLJ 230
o Wee Mui Hoo v PP (1987) 1 MLJ 498
o PP v Norzilan (1989) 1 MLJ 442

(ii) Second Rule: Each charge must be tried separately

• The reasons are mentioned in the case of Subramania Iyer v King
Emperor as above.

• However, there are four (4) exceptions to this rule which are
provided for in section 163. The exceptions are provided the
following sections:
o Section 164 CPC
o Section 165 CPC
o Section 166 CPC
o Section 170 CPC
Criminal Procedure 335

• Where the general rule is contravened and none of the exception

(s) applies, there would be a misjoinder of charges or the charges
have been misjoined in a single trial
o R. v Shahapurkar IlR 30 BOM 49
o Amrita Lal Hazra v Emperor 42 CAL 957
o Lim Tain Chye v PP (1915) 1 FMSLR 228
o Chan Chan Seng v PP (1932) MLJ 107
o Babulal Choukhani v Emperor (1938) AIR PC 130
o Lim Yan Leong v PP (1940) MLJ 216
o Sheikh Hassan v PP (1940) MLJ 69
o Hassan bin Isahak v PP (1948-49) MLJ Suppl 179
o Cheng Sang Heng v PP (1949) MLJ 175
o Kong Wai v PP (1949) MLJ 65
o Jaafar v PP (1950) MLJ 154
o Chin Choy v PP (1955) MLJ 236
o Tan Teik Long v Reg (1956) MLJ 14
o Cheong Sik Kwan v PP (1959) MLJ 189
o Seng Sai Kee v Rex (1959) MLJ 246
o Jayaraman and Others v PP (1979) 2 MLJ 88
o PP v Abdullah Ambek (1984) 1 CLJ 189
o Azahan b. Mohd Aminallah v PP (2005) 5 MLJ 334 (CA)
o Gunalan Ramachandran & Ors v PP (2006) 1 CLJ 857 (FC)

(b) Joint Trial

• Yau Pan v PP (1933) 1 MC 151
• Teo Kow Chye v PP (1965) 2 MLJ 212
• Jayaraman v PP (1979) 2 MLJ 212

(c) Abetment
• Taja Singh v PP (1950) MLJ 71
• Syed Ismail v PP (1967) 2 MLJ 108
Criminal Procedure 336

(d) Common intention

• Tan Keng Ann v PP (1965) 2 MLJ 108
• PP v Neoh Bean Chey (1975) 1 MLJ 3

(e) Conviction for Offence Not Charged

(i) The general rule is that a person should be formally charged so that he
is made aware of the offence with which he is charged and eventually
convicted of the same.

(ii) There are however exceptions to these rules which are:

• Section 167
• Section 168
• Section 169 (1)
• Section 169 (2)

(iii) Cases:
• PP v Kundan Singh and Others (1939) MLJ 22
• Latip bin Ahmad and Others v PP (1941) MLJ 5
• Lau Chan Chuah v R (1955) MLJ 246
• Lew Cheok Hin v R (1956) MLJ 131
• Maqbool Singh Dhillon v PP (1956) MLJ 216
• Hashim v PP (1956) MLJ 233
• Loh Kwang Siang v PP (1960) MLJ 271
• Abu Hassan v PP (1962) MLJ 61
• Mohamed Yasin v PP (1978) 2 MLJ 156
• Sivalingam v PP (1982) 2 MLJ 172
• Gurdit Singh v PP (1983) 1 CLJ 89
• PP v Francis Dang anak Nuya (1988) 1 MLJ 89
• Narain Singaray v PP (1988) 1 CLJ 179
• Shably bin Ahmad v PP (1992) 1 CLJ 1269
Criminal Procedure 337

(iv) Articles
• Molly Cheang, Framing Charges (1980) 1 MLJ xviii
• Lee Hoong Phun, Joinder of Capital and Non-Capital Charges
(1972) MLR 298
(f) Multiple Charges: Section 171 CPC

(g) Outstanding Charges: Section 171A CPC

• Hashim bin Pawanchee & Anor v PP (1988) 2 MLJ 66
• Abang Zailan bin Abang Zainal v PP (1992) 1 MLJ 225

(h) Striking out charges

• Ahmad Zubair Hj. Murshid v PP (2014) 9 CLJ 289
• PP v Datuk Hj. Wasli Md. Said & Other Appeals (2014) 9 CLJ 748

XVII: SENTENCING

1. Aims of Sentencing

(a) Retribution
(b) Deterrence
(c) Rehabilitation
• Sargeant (1974) 60 Cr. APP R. 74
• R v Ball 35 Cr App 164
• Abu Bakar v R (1953) MLJ 19
• PP v Khairuddin (1982) 1 MLJ 331
• New Tuck Shen v PP (1982) 1 MLJ 27
• PP v Ravindran (1993) 1 MLJ 45

(d) Conflict of aims:

• R v Ball 35 Cr App 164
• PP v Loo Choon Fatt (1976) 2 MLJ 256
• PP v Teh Ah Cheng (1976) 2 MLJ 186
Criminal Procedure 338

• PP v Yeoh Eng Khuan (1976) 1 MLJ 238

• Raja Izzuddin Shah v PP (1979) 1 MLJ 270
• PP v Chung Kwong Huah (1981) 1 MLJ 316
• New Tuck Shen v PP (1982) 1 MLJ 27
• Bhandulananda Jayatilake v PP (1982) 1 MLJ 83
• PP v Safian bin Abdullah & Anor (1983) 1 CLJ 324
• Teo Siew Peng & 4 Ors v PP (1985) 2 MLJ 125
• PP v Tan Koon Swan (1987) 1 MLJ 18
• PP v Loo Chang Hock (1988) 1 MLJ 316
• Radin Ibrahim bin Gusti Yassar v PP (1988) 3 MLJ 237
• Ong Lai Kim v PP (1991) 3 MLJ 111
• Ganesan a/l Nachiappan & Ors v PP (2000) 3 MLJ 244
• Chandra Sekaran a/l Ramiyah v PP (2000) 3 MLJ 649

2. Sentencing in the process of administration of Criminal Justice

(a) Subordinate Court, section 173(m)(ii) CPC

(i) "Sentence according to law"

• PP v Jafa bin Daud (1981) 1 MLJ 315
• New Tuck Shen v PP (1982) 1 MLJ 27
• Sim Boon Chai v PP (1982) 1 MLJ 353
• PP v Ravindran & Ors (1993) 1 MLJ 45
• PP v Nazarudin bin Ahmad & Ors (1993) 2 MLJ 9
• PP v Ahmad Osman (1998) 1 CLJ 66

(ii) Section 176(2) (r) CPC:

• note on previous convictions
• evidence of character
• plea in mitigation, if any
o Re Mohamed Shariff (1960) MLJ 277
Criminal Procedure 339

o Hitam v PP (1963) MLJ 224

(iii) factors which may aggravate sentence

• Ng Terk Chai v PP & other appeals (2013) 4 CLJ 342 (CA)

(iv) factors which may mitigate sentence

• PP v Chew Ah Hock (1956) MLJ 67

(v) Probation report

• Koh Puay Khoon & 3 Ors v PP (1984) 1 CLJ 193

(b) High Court: section 183 CPC: Trial before judge sitting alone

(i) Appeal can be made after sentence:

• Chapter XX CPC
• section 50 CJA
• Bhandulanda Jayatilake v PP (1981) 2 MLJ 354; (1982) 1 MLJ
83

(ii) Revision:
• Chapter XXXI CPC

(iii) Pardons, commutation:

• Article 42 FC
• Juraimi Husin v Pardons Board of State of Pahang & ors
(2002) 4 CLJ 529 FC
• sections 300 and 301 CPC

3. Jurisdiction of Courts
(a) See the topic on “Courts: Jurisdiction”
(b) See Penal Code, section 71, 72 and 75
Criminal Procedure 340

• Lim Ong Lum v The King (1926) SSLR 152

(c) "Shall be liable" and "shall be punished"

• PP v Man b Ismail (1939) MLJ 207
• PP v Lee Ah Sam (F) (1949) MLJ 236
• Khor Seek Pok v PP (1958) MLJ 170
• Darus v PP (1964) MLJ 322
• PP v Hew Yew (1972) 1 MLJ 164
• Jayanathan v PP (1973) 2 MLJ 69
• PP v Yeoh Eng Kuan (1976) 1 MLJ 238
• PP v Yong Thiam Fatt (1980) 2 MLJ 145
• Abu Seman v PP (1982) 2 MLJ 338
• Nili Anak Gumbang & Ors v PP (1985) 1 MLJ 464
• PP v Mohamed Nor & Ors (1985) 2 MLJ 200
• Philip Lau Chee Heng v PP (1988) 3 MLJ 107
• Rav Ie v PP (1988) 1 CLJ 210
• Francis Dang Anak Nuya v PP (1988) 2 CLJ 130
• PP v Leonard Glenn Francis (1989) 2 MLJ 158
• PP v Lim Hong Chin (1993) 3 MLJ 736

(d) Maximum Sentences

• Sia Ah Kew & Ors v PP (1974) 1 MLJ 125
• Loh Hock Seng & Anor v PP (1980) 2 MLJ 13
• PP v Oo Leng Swee & Ors (1981) 1 MLJ 247
• Chang Liang Sang & Ors v PP (1982) 2 MLJ 231
• Cheong Ah Cheow v PP (1985) 2 MLJ 257
• PP v Yap Sin Peng (1986) 1 CLJ 222

4. Available Sentences
(a) Death
(i) Examples
Criminal Procedure 341

• Penal Code - section 121A, 302

(ii) Exceptions
• Woman who is pregnant - section 275 CPC
• Child - section 97 CA
o Loh Hock Seng v PP (1980) 2 MLJ 13
o PP v Oo Leng Swee & Ors (1981) 1 MLJ 247
o Chang Liang Sang v PP (1982) 2 MLJ 231
o PP v Lau Kee Hoo (1983) 1 MLJ 157
o PP v Tan Hock Hai (1983) 1 MLJ 163
o Lau Kee Hoo v PP (1984) 1 MLJ 110
o PP v Kok Wah Kuan (2007) 6 CLJ 341 (FC)
o Section 281 CPC, amended by Act A908/95

(b) Imprisonment
(i) Meaning of ‘imprisonment for life’

• section 3 of the Criminal Justice Act 1953 (Revised 1988)

(Act 345)

"Where any person is treated as having been sentenced or is

hereafter sentenced to imprisonment for life, such sentence
shall be deemed for all purposes to be a sentence of
imprisonment for thirty years."

• section 2 of the Firearms (Increased Penalties) Act 1971

o Che Ani v PP (1984) 1 MLJ 113
o Philip Lau Chee Heng v PP (1988) 3 MLJ 107
o Tan Chee Kern v PP (2004) 2 MLJ 598

• Penal Code (Amendment and Extension) Act 1976 (A327)

Criminal Procedure 342

o life sentence means a sentence till death

o D.A. Duncan v PP (1980) 2 MLJ 195

• section 57 of the Penal Code

o Ong Ah Chuan v PP (1981) 1 MLJ 64
o PP v Lau Kee Hoo (1983) 1 MLJ 157; (1984) 1 MLJ
110

• Penal Code, section 130A

(ii) for fixed period

• sections 282 and 292 CPC
o Muharam v PP (1981) 1 MLJ 222
o PP v Foo Koh Sen (1983) 2 CLJ 96
o Salleh bin Hj Ali Hassan v PP (1987) 1 MLJ 522
o Shafrudin bin Selengka v PP (1994) 3 MLJ 750
o Dato' Seri Anwar Ibrahim v PP (2002) 3 MLJ 193
o PP v Abdul Wahab Abd Jabar & Anor (2002) 6 CLJ 332 (HC)
o PP v Sundarajan Sokalingam (2011) 7 CLJ 995 (HC)

• section 102 SCA

o S.A. Jamil Md Yusof v PP (2002) 6 MLJ 106 (HC)

• Concurrent and consecutive sentences

o Bujang Johny v PP (1965) 1 MLJ 72
o Re Cheng Seng Fatt (1965) 1 MLJ 91
o PP v Yuen Peng Lam (1969) 1 MLJ 211
o R v Faulkner (1972) Cr App R 594
o Balakrishnan v PP (1974) 2 MLJ 145
o Sau Soo Kim v PP (1975) 2 MLJ 134
o Lee Chow Meng v PP (1976) 1 MLJ 287
Criminal Procedure 343

o Datuk Harun v PP (1978) 1 MLJ 240

o Mohamed Johan Mutalib v PP (1978) 1 MLJ 213
o Abu Seman v PP (1982) 2 MLJ 338
o Noordin v PP (1983) 1 CLJ 313
o PP v Yap Huat Heng (1985) 2 MLJ 414
o PP v Peter Ting Chiong King (1987) 1 MLJ 42
o Hashim bin Pawanchee & Anor v PP (1988) 2 MLJ 66
o PP v Wong Kok Sein (1988) 2 MLJ 436
o PP v Ooi Sim Yim (1989) 3 MLJ 120 (1990) 1 MLJ 88
o Ahmad bin Hop v PP (1992) 3 CLJ 1408
o Mohd Jalani Saliman & Another v PP (1998) 1 CLJ 123
o PP v Ooi Wang San (1998) 2 MLJ 765
o Bachik Abdul Rahman v PP (2004) 2 MLJ 534 (CA)
o Shaafie Saibi v PP (2007) 9 CLJ 489 (HC)
o Yee Wen Chin v PP (2008) 6 MLJ 233
o Sumardey bin Hj Jaidin v PP (2010) 6 MLJ 54 (CA)
o PP v Muhammad Fauzi Abdul Razak & satu lagi (2012) 5
CLJ 284 (CA)

(c) Default of payment of fine

• section 283(1)(c) CPC
o PP v Tan Yook Kee (1939) MLJ 159
o PP v Lim Cheng Tong (1956) MLJ 77
o Mohamad Johan Mutalib v PP (1978) 1 MLJ 213
o Cheong Ah Cheow v PP (1985) 2 MLJ 257
o PP v Pontian Bas Berhad (1988) 2 MLJ 530
o Seow Puay Seng v PP (1988) 2 MLJ 160

(d) Whipping
(i) sections 286-287 CPC
o PP v Tan Kim Chok (1969) MLJ 211
Criminal Procedure 344

o PP v Anuar Layani bin Saidon (2001) 3 MLJ 515

(ii) section 103 SCA

How is it carried out: section 288(1) & (4) CPC
o Chai Ah Kau v PP (1974) 2 MLJ 191
o Act A908/95 amending section 288(4)

(iii) Exceptions - section 289 CPC

o Liaw Kwai Wah & Anor v PP (1987) CLJ (Rep) 163 (SC)
• Females

• Males sentenced to death

o Ahmad Najib Aris v PP (2009) 2 CLJ 800
o Ang Meng Leong v PP & Other Case (2014) 1 LNS 342
(CA)

• Males whom the Court considers to be more than 50 years of

age, except males sentenced to whipping under sections 376,
377C, 377CA or 377E of the Penal Code
o Lim Tien Hin v R (1953) MLJ 213
o Mohamed Ali v PP (1956) MLJ 84
o Ho Kin Luan v PP (1959) MLJ 159
o Yong v PP (1959) MLJ 176
o Kharuddin v PP (1969) 1 MLJ 45

• Whipping – What it means when a Court Orders

o Liaw Kwai Wah & Anor v PP (1981) 1 CLJ 35
o PP v Peter Ting Chiong King (1987) 1 MLJ 42
o PP v Chan Choon Keong & Ors (1989) 2 MLJ 427
o PP v Leonard Glenn Francis (1989) 2 MLJ 158
o Mahrus v PP (1992) 1 MLJ 561
Criminal Procedure 345

o PP v Anuar Layani bin Saidon (2001) 3 MLJ 515 (HC)

* See also (1974) 2 MLJ xxiv
• The new amendment Act 2006 paves way for whipping
of males in the age of 50 or above relating to sexual
offences. (In light of the amendment, previous cases
relating to Section 289 CPC, must be read with caution.)

(iv) Youthful Offenders: section 293 CPC

o Re A Juvenile (1990) 1 CLJ 968; (1990) 1 MLJ 117
o Ong Lai Kim v PP (1991) 3 MLJ 111
(e) Fine
• Definition: sections 2 and 283 CPC
o R v Teo Woo Tin (1932) MLJ 124
o Lee Yu Fah v PP (1937) 1 MLJ 179
o Reg v Lim Cheng Tong (1956) MLJ 77
o Tan Kah Eng v PP (1965) 2 MLJ 272
o PP v Chang Siew Meng (1972) 2 MLJ 72
o New Tuck Shen v PP (1982) 1 MLJ 27
o Zakariya bin Musa v PP (1985) 2 MLJ 221
o PP v Vun Tain Yin (1986) 1 CLJ 94
o Gabriel v PP (1992) 1 MLJ 593

(f) Compensation
• sections 426 (1) (1A) (1B) (1C) (1D) (2) (3) (4) & (5), 173A(3),
294(2) and 432 CPC
o Mohamed Johan Mutalib v PP (1978) 1 MLJ 213
o Raja Izzuddin Shah v PP (1979) 1 MLJ 270

(g) Police Supervision

• section 295-296 CPC
o Abdul Wahab v PP (1970) 2 MLJ 203
Criminal Procedure 346

o PP v Haled (1981) 2 MLJ 211

o Roslan bin Haji Yahya v PP (1985) 2 MLJ 218
o Zakariya bin Musa v PP (1985) 2 MLJ 221
o PP v Sulaiman b Ahmad (1993) 1 MLJ 74

(h) Rehabilitative counselling

• sections 295A and 295(1A)

(i) Good Behaviour Bonds

• sections 294 and 293(l)(b), 173A CPC
o PP v Idris (1955) MLJ 234
o PP v Yeong Yin Choy (1976) 2 MLJ 267
o PP v Loo Choon Fatt (1976) 2 MLJ 256
o Teo Siew Peng & 4 Ors v PP (1985) 2 MLJ 125
o Tan Chee Meng v PP (1990) 2 CLJ 103
o Lim Kim Poh v PP (2000) 3 MLJ 411
o Nor Afizal Azizan v PP (2012) 6 CLJ 370 (CA)
o PP v Abdul Halim Abd Samat (2014) 4 CLJ 12 (CA)

➢ Take note of the non-application of good behaviour bonds to an

offender who is charged with a serious offence or if the offender is
charged with the commission of an act of domestic violence as
defined under section 2 of the Domestic Violence Act 1994 (Act
521), as laid down in the newly introduced section 173A (8) CPC as
well as section 294 (6) CPC.

(j) Discharge
(i) Discharge unconditionally - section 173A(2)(b) CPC
(ii) Conditional discharge - section 173A(2)(b) CPC

• PP v Datuk Tan Cheng Swee (1980) 2 MLJ 276

Criminal Procedure 347

(iii) sections 173A and 294 CPC

• PP v Idris (1955) MLJ 234
• Jayanathan v PP (1967) 1 MLJ 204
• Shanmuganathan v PP (1967) 1 MLJ 204
• PP v Tan Eng Hock (1970) 2 MLJ 15
• PP v Yeoh Eng Khuan (1976) 1 MLJ 238
• PP v Loo Choon Fatt (1976) 2 MLJ 256
• PP v Teh Ah Cheng (1976) 2 MLJ 186

(k) Community service in respect of youthful offenders

• section 293(e) CPC

5. Mitigating Factors: Sections 176(2) (r), 173A and 294 CPC

(a) Age of Offender

• Tukiran v PP (1955) MLJ 24
• Re Johari bin Ramli (1956) MLJ 56
• PP v Yeoh Eng Kuan (1976) 1 MLJ 238
• PP v Teh Ah Cheng (1976) 2 MLJ 256
• PP v Loo Choon Fatt (1976) 2 MLJ 256
• Mohamed Johan Mutalib v PP (1978) 1 MLJ 213
• PP v Safian (1983) 1 CLJ 324
• PP v Yap Huat Heng (1985) 2 MLJ 414
• PP v Mohamed Ali bin Kipli (1986) 1 MLJ 444

(b) Record of Offender

• Clean record - First Offender
o Abdul Kareem v Reg (1954) MLJ 86
o PP v Lim Guan Hock (1949) MLJ 231
o Tukiran v PP (1955) MLJ 24
Criminal Procedure 348

o PP v Ng Ah Tak (1959) MLJ 19

o PP v Yap Chong Fatt (1963) MLJ 136
o Shanmuganathan v PP (1967) 1 MLJ 204
o Khairudin v PP (1969) 1 MLJ 45
o Govindarajoo v Registrar of Criminals (1974) 1 MLJ 112
o PP v Yeoh Eng Khuan (1976) 1 MLJ 238
o PP v Jafa bin Daud (1981) 1 MLJ 315
o PP v Haled (1981) 2 MLJ 211
o PP v Mark Koding (1983) 1 MLJ 111
o Ch'ng Lian Eng v PP (1983) 1 MLJ 424
o PP v Leo Say & Others (1985) 2 CLJ 155
o Sumardey bin Hj Jaidin v PP (2010) 6 MLJ 54 (CA)

(c) Public Interest

• Bhandulananda Jayatilake v PP (1981) 2 MLJ 354; (1982) 1 MLJ 83
• PP v Khairuddin (1982) 1 MLJ 331
• PP v Muhari (1996) 3 MLJ 116
• Tan Sri Abdul Rahim v PP (2001) 3 MLJ 1 (CA)
• PP v Mohd Amin Mohd Razali & Ors (2002) 5 CLJ 281
• PP v Alfred a/l Vincent (2004) 6 MLJ 105
• Sabarudin b Non & 3 Ors v PP (No. 2) (2005) 1 AMR 26 (CA)
• PP v Salwani Thaleb (2008) 5 CLJ 651

(d) Plea of Guilty

• Melvani v PP (1971) 1 MLJ 137
• Sau Soo Kim v PP (1975) 2 MLJ 134
• PP v Leo Say & Others (1985) 2 CLJ 155
• PP v Govindnan a/l Chinden Nair (1998) 2 MLJ 181
• PP v Ooi Kwang Lai (2000) 6 MLJ 622 (HC)
• Vinaga Moorthy Gopal v PP (2003) 1 CLJ 758 (CA)
• Tia Ah Leng v PP (2004) 5 AMR 93 (CA)
Criminal Procedure 349

• Kesavan v Baskaran v PP (2008) 6 MLJ 384

• PP v Kanadasan a/l Sankaran & Anor (2010) 1 MLJ 297 (CA)
• PP v Gunasekaran Arjunan & Anor (2006) 3 CLJ 1003 HC
• Che Hasan bin Senawi v PP (2009) 1 MLJ 55 (CA)
• PP v Ling Leh Hoe (2015) 4 CLJ 902 (CA)
• PP v Mohamed Danny Mohamed Jedi (2018) 5 CLJ 692 (CA) –
whether severity of offence outweighed accused’s plea of guilt.
Terrorism offence – dealing with terrorist property.

(e) Conditions before Commission of Offence

• Provocation
• Domestic and emotional crisis
• Financial problems
• Drunkenness - Raja Izzuddin Shah v PP (1979) 1 MLJ 270
• Instigation - Ch'ng Lian Eng v PP (1983) 1 MLJ 424
• Consent - PP v Selvarajah (1984) 1 MLJ 93

(f) Effects of Conviction and Sentence

(i) Effect on family of offender

o PP v Teh Ah Cheng (1976) 2 MLJ 186
o PP v Loo Choon Fatt (1976) 2 MLJ 256

(ii) Effect on job and other privileges

o Datuk Harun Idris v PP (1978) 1 MLJ 240
o PP v Lim Kit Siang (1979) 2 MLJ 37
o Lai Kim Hon & Ors v PP (1981) 1 MLJ 84
o PP v Vijaya Raj (1981) 1 MLJ 43
o PP v Mark Koding (1983) 1 MLJ 111
Criminal Procedure 350

(iii) Health of Offender

(g) Conduct of Offender

(i) Repentance
• Raja Izzuddin Shah v PP (1979) 1 MLJ 270
• PP v Khairudin (1982) 1 MLJ 331

(ii) Cooperation with police

(iii) Payment of Compensation

• Raja Izzuddin Shah v PP (1979) 1 MLJ 270
• PP v Tan Koon Swan (1987) 1 MLJ 18

(h) Other factors

(i) "Stale" offence

(ii) Drug addict

• Mohamed bin Abdul Rahman v PP (1979) 1 MLJ 252

(iii) Health of Offender

(iv) Duration of custody

• Muharam bin Anson v PP (1981) 1 MLJ 222

(v) Drugs of less dangerous kind

• PP v Mohamed Ismail (1984) 1 MLJ 134

(vi) Gap principle

• Zaidon Shariff v PP (1996) 4 CLJ 441
• PP v Iran bin Sakdon (1998) 1 LNS 288
Criminal Procedure 351

(vii) Others
• PP v Mark Koding (1983) 1 MLJ 111
• Ch'ng Lian Eng v PP (1983) 1 MLJ 424
• PP v Dato Hj Mohamad Muslim bin Hj Othman (1983) 1 MLJ 245
• Syed Abu Tahir a/l Mohamed Esmail v PP (1988) 3 MLJ 485

6. Aggravating Factors

(a) Prevalence of offence

• PP v Tan Eng Hock (1970) 2 MLJ 315 – car theft
• Siah Ah Kew v PP (1974) 1 MLJ 125 – Kidnapping
• Lee Chow Meng v PP (1976) 1 MLJ 287 - armed robbery and
possession of arms
• PP v Teh Ah Cheng (1976) 2 MLJ 186 - possession of arms
• PP v Yeoh Eng Khuan (1976) 1 MLJ 238 - possession of drugs
• PP v Chung Kwong Huah (1981) 1 MLJ 315
• Cheong Ah Cheow v PP (1985) 2 MLJ 257
• PP v Rajandran (1985) 2 MLJ 260
• PP v Wong Chak Heng (1985) 1 MLJ 457
• Low Thim Fatt v PP (1989) 1 MLJ 304
• PP v Lee Tak Keong (1989) 1 MLJ 307
• Ong Lai Kim v PP (1991) 3 MLJ 111

(b) Position or status of offender

• Datuk Harun Idris v PP (1978) 1 MLJ 240
• PP v Lim Kit Siang (1979) 2 MLJ 37
• PP v Datuk Tan Cheng Swee (1980) 2 MLJ 276
• Datuk Haji Dzulkifli v PP (1981) 1 MLJ 112
• Lai Kim Hon & Ors v PP (1981) 1 MLJ 84
• R v Pugh & Rendell (1981) Cr LR 270
• New Tuck Shen v PP (1982) 3 MLJ 22
Criminal Procedure 352

• PP v Khairuddin (1982) 1 MLJ 331

• Abdul Kadir bin Abdul Rahman v PP (1984) 1 MLJ 80
• PP v Muthu Lingam (1986) 1 MLJ 432
• PP v Tan Koon Swan (1987) 1 MLJ 18
• PP v Emran bin Nasir (1987) 1 MLJ 166
• Mohamed Abdullah Ang Swee Kang v PP (1988) 1 MLJ 167
• Khoo Ban Hock v PP (1988) 3 MLJ 22
• Tan Sri Abdul Rahim v PP (2001) 3 AMR 3253 (CA)
• PP v Dato' Waad b Mansor (2005) 1 CLJ 421 (FC)

(c) Use of force

• Mohamed Ali v PP (1956) MLJ 84
• Hoe Kim Luan v PP (1959) MLJ 159
• Yong v PP (1959) MLJ 176
• PP v Chung Kwong Huah (1981) 1 MLJ 315
• PP v Haled (1981) 2 MLJ 211
• Jayaraman v PP (1982) 2 MLJ 273, 306
• PP v Safian bin Abdullah (1983) 1 CLJ 324
• Joginder Singh v PP (1984) 2 MLJ 133
• PP v Tay Chuan Beng & Anor (1989) 1 MLJ 403

(d) Mode of committing offence

• PP v Safian bin Abdullah (1983) 1 CLJ 324
• Joginder Singh v PP (1984) 2 MLJ 133
• PP v Tay Chuan Beng & Anor (1983) 1 MLJ 403

(e) Victim Impact Statement

• Section 183A and proviso to subparagraph (m)(ii) of section 173
CPC.
• Ahmad Rashidi Zainol & Anor v PP (2013) 9 CLJ 476 (HC)
Criminal Procedure 353

(f) Other factors

• Abang Zailan bin Abang Zainal v PP (1992) 1 MLJ 225
• Dominic Chin Soon Siong v PP (2008) 3 MLJ 24 (CA)
• See Datuk Baljit Singh Sidhu & Mohd Akram Mohamed “Third Voice
in a Criminal Justice System: The Voice of the Victim through the
Victim Impact Statement” (2015) 6 CLJ (A) i.

7. Sentence for specific offences

(a) Possession of firearms

• Sau Soo Kim v PP (1975) 2 MLJ 134
• PP v Teh Ah Cheng (1976) 2 MLJ 186
• Lee Chow Meng v PP (1976) 1 MLJ 287
• PP v Chung Kwong Huah (1981) 1 MLJ 315
• PP v Lau Kee Hoo (1983) 1 MLJ 157

(b) Bribery and Corruption

• Goh Leng Sai v R (1959) MLJ 121
• Hashim v PP (1967) 1 MLJ 251
• Mahesan v PP (1970) 1 MLJ 255
• Mohd Mokhtar v PP (1972) 1 MLJ 122
• Ng Kok Tooi v PP (1974) 2 MLJ 150
• Mohd Taufik v PP (1975) 1 MLJ 36
• Datuk Harun v PP (1978) 1 MLJ 240
• PP v Datuk Tan Cheng Swee (1980) 2 MLJ 276
• New Tuck Shen v PP (1982) 1 MLJ 27
• PP v Mohamed Muslim (1983) 1 MLJ 245
• Dato' Seri Anwar Ibrahim v PP (2002) 3 MLJ 193
• Mohd Khir Toyo v PP (2013) 5 CLJ 323 CA; (2015) 8 CLJ 769 (FC)
Criminal Procedure 354

(c) Possession/Trafficking in Drugs

• PP v Yeoh Eng Khuan (1976) 1 MLJ 238
• PP v Loo Choon Fatt (1976) 2 MLJ 256
• Mohamed bin Abdul Rahman v PP (1979) 1 MLJ 252
• Loh Hock Seng v PP (1980) 2 MLJ 13
• PP v Oo Leng Swee (1981) 1 MLJ 247
• Chang Liang Sang & Ors v PP (1982) 2 MLJ 231
• PP v Tan Hock Hai (1983) 1 MLJ 163
• PP v Saubin Beatrice (1983) 1 MLJ 307
• PP v Mohamed Ismail (1984) 1 MLJ 134
• Loo Kia Meng v PP (2000) 3 MLJ 664
• Andy bin Baginda v PP (2000) 3 MLJ 644
• PP v Chia Leong Foo (2000) 4 CLJ 649

(d) Kidnapping
• Teh Yew Whatt v PP (1958) MLJ 171
• Sia Ah Kew v PP (1974) 1 MLJ 125

The cases cited above adumbrate the trite law on sentencing. As there
are plethora of cases on sentencing, candidates are advised to
independently pursue to explore the other cases on this subject.

The following is an excerpt of the judgment by Abdul Aziz bin Abdul

Rahim JCA in the case of Norsharizan bin Junaidi v PP (Criminal
Appeal No: Q-09(S)-367-11/2014 - unreported) on sentencing,
which essentially encapsulates the law pertaining to how a court metes
out an approporate sentence according to law:

“… Sentencing has two primary purposes.

Criminal Procedure 355

One is to punish the offender for the offence that he or she had
committed and found guilty of. Two is to serve as deterrent to
others so that the public is protected from would be future
offenders of the same offence or any other offence. This is the
public interest element in sentencing. In R v Ball 35 Cr Appeal R
164 it was said that public interest is first and foremost
consideration. In the same case it was also said that criminal law is
public enforced with the objective of punishing crime as well with
the hope of preventing. A proper sentence passed may achieve
these two objectives. Public interest is best served if the offender is
induced to turn from criminal ways to honest living. See also
Ahmad Bin Haji Bakar v PP [1988] 2 MLJ 216.

In certain cases, depending on the sentence passed and the

relevant statutory provisions on sentencing, the sentence could also
serve as a means to rehabilitate the offender and to keep the
offender (particularly the first offender) away from the path of
crime in the future. It is here that the Court in meting out sentence
must do the balancing act – between public interest and that of the
offender. Too lenient a sentence would not have a deterrent effect
and may be seen

as a weakness. Too excessive a sentence (especially long custodial

sentence) may not have the desired effect on the offender which is
to punish him and at the same time to allow him to rehabilitate.
Instead keeping the offender longer than necessary in custodial
sentence, may turn the offender into a hardened criminal due to
prolong association with the undesirable elements behind the prison
walls.
Criminal Procedure 356

In any event, sentencing is an exercise of discretion by the trial

Judge. The law simply provides, as in most cases, a spectrum of
sentences – from the minimum to the maximum. The trial Court
has to choose the appropriate sentence in each case within that
spectrum by giving consideration to the peculiar circumstances of
each case and all the relevant factors. The only constraint face by
the trial Court in exercising its discretion is when the law imposes
the only sentence such in the case of murder under section 302 or
when the law provides for a minimum sentence in which case the
trial Court cannot impose anything less than the minimum. For
illustration reference may be made to the following cases: PP v
Leonard Glenn Francis [1989] 2 MLJ 158; Leong Kok Huat v PP
[1998] 6 MLJ 406 and Philip Lau Chee Heng v PP [1988] 3 MLJ 107.

Because it is an exercise of discretion the appellate Court will not

readily interfere with the sentence imposed by the trial Court on the
ground that in the appellate Court’s opinion a different sentence
could have served the purpose better. The appellate Court will
however intervene if the sentence passed is found to be manifestly
inadequate or manifestly excessive, having regard to the whole
circumstances of any given case. The appellate Court will also
intervene if it can be shown that the trial Court had applied the
wrong principles in passing the sentence. This is trite law…”

8. Revision and Control of Sentencing Decisions

(a) General Principles

• R v De Cruz (1935) MLJ 1
• Abdul Rahman v PP (1938) MLJ 219
• Liow Chow v PP (1939) MLJ 170
• Abu Bakar v R (1953) MLJ 19
Criminal Procedure 357

• Yap Teng Chai v PP (1959) MLJ 205

• PP v Loo Choon Fatt (1976) 2 MLJ 256
• Abu Seman v PP (1982) 2 MLJ 338
• R v Ball 35 Cr App R 164
• PP v Govindnan a/l Chinden Nair (1998) 2 MLJ 181
• Christopher Khoo Ewe Cheng v PP (1998) 3 MLJ 881
• Lim Guan Eng v PP (1998) 3 MLJ 14
• Saul Hamid bin Pakir Mohamad v Inspector Abdul Fatah bin Abdul
Rahman & Anor (1999) 6 MLJ 800
• Gek Sing a/l Kaliappan v PP (1999) 6 MLJ 641
• Norshaharin v PP (2002) 5 CLJ SuPP 492 (HC)
• Adam Atan v PP (2009) 1 CLJ 33
• Wong Chee Kheong v PP & other appeals (2016) 7 CLJ 39 (CA) –
whether sentence manifestly inadequate.

(b) Disparity in Sentencing

• R v Ball 35 Cr App R 164
• Mohamed Jusoh v PP (1947) MLJ 30
• Datuk Harun Idris v PP (1978) 1 MLJ 240
• Zulkifli b. Puasa & Ors v PP (1985) 1 MLJ 461
• PP v Nazarudin bin Ahmad & Ors (1993) 2 MLJ 9
• PP v Salwani Thaleb (2008) 5 CLJ 651

(c) Ineffective Sentence

• PP v Mahat Singh (1939) MLJ 239
• PP v Tanga Muthu (1940) MLJ 18
• PP v Quek Bak Seng (1963) MLJ 137
• Lau Lim Peng v PP (1968) 2 MLJ 14
• Hasanuddin v PP (2002) 2 MLJ 157

(d) Unclear Sentences

Criminal Procedure 358

(i) Whether sentence of imprisonment is concurrent or consecutive

• Bujang Johny v PP (1965) 1 MLJ 72

(ii) Whether sentence of imprisonment in default of payment of fine

should be concurrent or consecutive
• Datuk Harun Idris v PP (1978) 1 MLJ 40, 250

XVIII: CRIMINAL APPEAL

1. Appeal To The High Court

(a) General

• Chapter 30 CPC provides for the procedure for an appeal to High Court.
Appeal to the Court of Appeal as well as Federal Court is governed by
the provisions in the Courts of Judicature Act 1964, which in fact follows
mutatis mutandis the procedure as found in the CPC.

(b) Plea of Guilty: Section 305 CPC

• Prohibition on a convicted person from appealing against his conviction if

he has earlier pleaded guilty to the charge. However, a limited right of
appeal is allowed only as to the extent or legality of sentence imposed.
o Municipal Commissioners v Chuah Seng (1882) 3 Ky 140
o Lee Yu Fah v PP (1937) MLJ 179
o Low Hiong Boon v PP (1948-49) MLJ Supp. 135
o Heng Kim Khoon v PP (1972) 1 MLJ 30
o Abdul Kadir v PP (1984) 1 MLJ 80
o PP v Azizan (1985) 2 MLJ 116
o Philip Hoalim v PP (1986) MLJ 21
o Tan Kee Chie v PP (1987) 1 MLJ 430
Criminal Procedure 359

o Mohd Dalhar bin Redwan v Datuk Bandar, DBKL (1995) 1 MLJ 645
o Norshaharin v PP (2002) 5 CLJ Supp. 492 (HC)

(c) Appeal against acquittal: Section 306 CPC

(d) Procedure for Appeal: Section 307 CPC

(i) ‘Any person’ dissatisfied with any judgement, sentence or order

pronounced by any Magistrate Court in a criminal case or case to which
he is a party can prefer an appeal.

‘Any person’ includes:

• R v Rudguard (1939) MLJ 56 - includes Public Prosecutor
• R v Schefelaer (1939) MLJ 45 - with the sanction of Public
Prosecutor
• Koay Ban Siew v PP (1948) MLJ 54 - to which he is a party
• Re Siah Tin Toon (1963) MLJ 277
• Sofian v PP (1970) 2 MLJ 272
• Municipal Commissioners, Malacca v Teh Chee Swi (1971) 2 MLJ
274
• Toh Yew Sing & Ors v PP (1980) 2 MLJ 215
• Jayasankaran v PP (1983) 1 MLJ 379
• Hardial Singh v Faridah bte Haron (1988) 2 MLJ 465
• Public Finance Bhd. v PP (1989) 2 MLJ 448
• Datuk Tiah Thee Kian v PP (2002) 2 CLJ 21
• PP v Letchumanan (2009) 5 CLJ 652 (FC)

(ii) Judgement, sentence or order analysed in:

• PP v Hoo Chang Chwen (1962) MLJ 284
• PP v R K Menon (1978) 2 MLJ 152
• Marzuki bin Mokhtar v PP (1981) 2 MLJ 155
Criminal Procedure 360

• PP v Raymond Chia (1983) 1 CLJ 321

• Oh Teck Soon v PP (1983) 1 CLJ 244
• Maleb bin Su v PP (1984) 1 MLJ 311
• Indran v PP (1985) 1 MLJ 326
• Dato’ Seri Anwar Ibrahim v PP (2010) 6 MLJ 585 (FC)

(iii) Lodging within fourteen (14) days from the time of such judgment,
sentence or order being passed
• Kentucky Fried Chicken v Lembaga Bandaran P.J. (1976) 2 MLJ
145
• Toh Yew Sing & Ors. v PP (1980) 2 MLJ 215
• PP v Vijaya Raj (1981) 1 MLJ 43

(iv) Section 307(2) CPC

• Form of notice of appeal and the procedural requirements.

o Voon Chin Fatt v PP (1948/49) MLJ Supp 131
o T. N. Nathan v PP (1978) 2 MLJ 134
o Pitting bin Hj. Mohamed Ali v PP (1979) 2 MLJ 136
o PP v Azizan bin Salleh (1983) 2 CLJ 95
o Jayasankaran v PP (1983) 1 MLJ 379

(v) Section 307(3) CPC

• Grounds of decision
o Dr. Soon Tiong Kiong & Ors v PP (2002) 3 CLJ 1
o Noor Azman Abidin v PP (2014) 1 CLJ 58 (CA) – whether
there were elements of speculation compromising integrity of
the decision-making process.
o Ong Keng Tat v PP (2015) 1 CLJ 506 (CA)
Criminal Procedure 361

• Cross refer also to:

o Section 176(2) (t) CPC - judgement if written
o Section 176(2) (x) CPC - if the judgement was oral, the
grounds of decision

• Cases:
o Goh Teng Lok v R (1939) MLJ 309
o R v Low Toh Cheng (1941) MLJ 17
o Voon Chin Fatt v PP (1948-49) MLJ Supp 131
o Sultan mohamed v Reg (1952) MLJ 186
o Arunasalan Thavar v PP (1956) MLJ 109
o Balasingam v PP (1959) MLJ 193
o Augustin v PP (1964) MLJ 7
o Hashim v PP (1966) 1 MLJ 229
o Nathan v PP (1972) 2 MLJ 101
o T.N. Nathan v PP (1978) 2 MLJ 134
o PP v Tan Tho Kim (1978) 2 MLJ 65

• Section 307 (1) CPC – appeal against procedural ruling

o Datuk Tiah Thee Kian v PP (2002) 2 CLJ 21 (HC)

• Section 307(4) CPC - ‘The Appellant’ or ‘the appellant or his

advocate’
o Pitting Haji Ali v PP (1979) 2 MLJ 136
o Toh Yew Sing v PP (1980) 2 MLJ 215
o Jayasankaran v PP (1983) 1 MLJ 379
o PP v Jitweer Singh Ojagar Singh (2014) 1 CLJ 433 (FC) –
whether court powerless to permit a point of law or fact which
is not raised or particularized the petition of appeal.
Criminal Procedure 362

• Section 307(5) CPC - Although during course of trial notes of

evidence supplied, at time of filing notice of appeal request can be
made again for such notes.
o PP v Tan Tho Kim (1978) 2 MLJ 65

• Section 307(6) CPC - “Substance of the judgment appealed

against”
o R v Ng Guan Thong (1935) MLJ 25
o King v Ong Chwee Hok (1938) MLJ 39
o Veerasingam v PP (1958) MLJ 76
o Wong Heng Fatt v PP (1959) MLJ 20
o Ooi Teik Chin v PP (1971) 1 MLJ 20
o Habee Bur Rahman v PP (1971) 2 MLJ 194

• Section 307(7) CPC - Provision for an Appellant in prison; he has to

give notice to the officer in charge of prison either orally or in
writing.
o PP v Vijaya Raj (1981) 1 MLJ 43
o Jimari bin Mohamed v PP (1982) 1 MLJ 282
o Leken @ Delem ak Gerik (M) v PP (2007) 3 MLJ 370

(e) Section 310 CPC

• Powers conferred on Judge of High Court to extend the time prescribed
for filing notice of appeal or petition of appeal
o PP v Tan Teng Gak (1962) MLJ 598
o PP v Sundarevek (1967) 1 MLJ 79
o Innocent v PP (1971) 1 MLJ 294
o Wong Swee Chin v PP (1979) 2 MLJ 207
o PP v Vijaya Raj (1981) 1 MLJ 43
o Jumari v PP (1982) 1 MLJ 282
o Manoharan v PP (1982) 2 MLJ (B) 3
Criminal Procedure 363

o Masnelan Prakpahan v PP (1989) 2 MLJ 362

(f) Section 311 CPC and Section 57 CJA

(i) Stay of execution pending appeal.

(ii) Except for sentence of whipping which is automatically stayed when an

appeal is pending, no other sentence is stayed. However, court may
order a stay of execution based on certain situations. Bail may also be
allowed.
• R v Tan Tee (1948) MLJ 153
• Re Kwan Wah Yip (1954) MLJ 146
• Goh Beow Yam v Reg (1956) MLJ 251
• Ralph v PP (1972) 1 MLJ 242
• Ganesan v PP (1983) 2 MLJ 369
• Yusof bin Mohamed v PP (1995) 3 MLJ 66
• KWK (A Child) v PP (2003) 4 MLJ 479 (CA)

(iii) Whether Section 311 covers an order of acquittal as well?

• Ment and Others v PP (1994) 1 MLJ 201

(g) Section 308 CPC

• Transmission of the appeal record to High Court, the PP and the

advocate for the appellant by the subordinate court when the appellant
has complied with section 307 CPC

(h) Section 313 CPC - Procedure at hearing

• Appellant heard first, then Respondent (if present) will be heard against
and the Appellant is entitled to reply. What if Appellant absent?
Criminal Procedure 364

o PP v Goh Thor Kiah (1952) MLJ 91

o Rahim bin Usoff and Others v PP (1985) 1 MLJ 241

o Hardial Singh v Faridah bte Haron (1988) 2 MLJ 465 Section 314(ii)
o Also on section 314(2) CPC

(i) Section 314 CPC - Non-appearance of Respondent

• PP v Goh Thor Kiah (1952) MLJ 91

(j) Section 315 CPC - Arrest of respondent in certain cases

• Provision for arrest of a person earlier acquitted and released by the

subordinate court, when there is an appeal lodged by the PP.

(k) Section 317 CPC - Fresh evidence

(i) High Court may either take additional evidence itself or order the
Magistrate to take such evidence.

(ii) Principles
o R v Ball 35 Cr App R 164
o R v Sheo Swarup AIR (1934) PC 227
o Nur Muhamed AIR v R (1945) PC 151
o Bhandulananda Jayatilake v PP (1982) 1 MLJ 83
o Lim Kheak Teong v PP (1985) 1 MLJ 38
o Hasibullah bin Mohd Ghazali v PP (1993) 3 MLJ 321
o R v Ng Guan Thong (1935) MLJ 25
o Po Thiam Sang v PP (Supreme Court (Criminal Applicant, No 1) of
(1995)) (unreported)Tan Choon Chuan v PP (1950) MLJ 200
o R v Parks (1961) 3 All ER 633
o Mohamed bin Jamal v PP (1964) MLJ 254
Criminal Procedure 365

o Dol bin Lassin v PP (1987) 1 MLJ 1167

o Rapidin Kamal v PP (2005) 4 CLJ 415

(l) Section 318 CPC – Judgement

• Judgement on the appeal can be given either at the end of the hearing
or on some later date in open court, in the presence of both parties.

(m) Section 320 CPC - Death of Parties

(i) Every appeal under Sect 306 CPC shall abate on death of the accused.

(ii) Every other appeal under Chapter 30 CPC except an appeal against a
sentence of fine, shall abate on the death of the Appellant.
• Sunny Yap Eu Leong v PP (1994) 3 MLJ 434

• Choo Cheng Liew v PP (1997) 1 CLJ 520

(n) Section 316 CPC

(i) Power of High Court when exercising its appellate jurisdiction.

• R v Ball 35 Cr App R 164
• PP v Abang Abdul Rahman (1982) 1 MLJ 346
• Irawadi bin Mohammed v PP (2012) 5 MLJ 650 (CA)

(ii) Section 316 CPC may be analysed from the following perspective:

(A) Section 316 (a) CPC - Appeal by PP

• Reverse the order of acquittal
o Direct that further inquiry be made
o Direct that accused be retried
Criminal Procedure 366

o Direct that the accused be committed for trial

• Find accused guilty and pass sentence on him according to

law.
o Sallehuddin bin Yahya v PP (1979) 2 MLJ 138
o Lim Kheak Teong v PP (1985) 1 MLJ 38
o PP v You Kong Lai (1985) 1 MLJ 48
o Dal bin Lasim v PP (1987) 1 MLJ 116
o PR v Isa bin Johnit & lain-lain (1994) 3 MLJ 218

(B) Section 316 (b) - Appeal by accused

• Reverse the finding and sentence

o Acquit or discharge the accused

▪ Moreza Nasserranjbar v PP (2015) 1 CLJ 382
▪ Mohd Yusri Abd Hamid v PP (2015) 1 CLJ 72

o Order him to be retried

▪ Awaluddin bin Suratman & Ors v PP (1992) 1 MLJ
416
▪ Ooi Lean Chai v PP (1991) 2 MLJ 552

o Order him to be committed for trial

▪ Yusoff bin Kassim v PP (1992) 2 MLJ 183

o Alter the finding and maintain the sentence

▪ Alter the finding and alter sentence – reduce,
enhance or alter nature of sentence
▪ Without altering the finding, alter sentence -
reduce, enhance or alter nature of sentence
Criminal Procedure 367

o Meaning of ‘alter’
▪ Ng Ee v PP (1941) MLJ 180
▪ Sivalingam v PP (1982) 2 MLJ 172
▪ PP v Jee Schow Kung (1982) 2 MLJ 357
▪ Gurdit Singh v PP (1983) 1 MLJ 264
▪ Tropiland Sdn Bhd v PP (1993) 2 MLJ 261

(C) Section 316 (c) CPC - Appeal by PP or Accused from any other
order (other order: like trial de novo or re-trial), alter or reverse the
order
• Teh Say Yeow v PP (1924) 4 FMSLR 325
• Ng Ee v PP (1941) MLJ 180
• Lee Sang Chean v R (1946) MLJ 22
• Goh Ah San v The King (1948) MLJ 95
• Paramasivam v PP (1948-49) MLJ 152
• Tan Book Teck v PP (1950) MLJ 44
• Quek Ching Kim v Reg (1956) MLJ 131
• Lew Cheok Hin v R (1956) MLJ 131
• Loh Kwang Seang v PP (1960) MLJ 271
• Abu Hassan v PP (1962) 2 MLJ 65
• PP v Wan Razali Kassim (1970) 2 MLJ 79
• Sallehudin bin Yahya v PP (1979) 2 MLJ 138
• Sivalingam v PP (1982) 2 MLJ 138
• Rahim v PP (1985) 1 MLJ 241

2. Appeal to the Court of Appeal

(a) Federal Constitution: Clause 1B, Article 121

(b) Courts of Judicature Act 1964 (CJA)
Criminal Procedure 368

(i) Section 50 CJA

• Saad bin Abbas & Anor v PP (1999) 1 MLJ 129
• PP v Pasupathy (2001) 2 MLJ 143 (CA)
• Tay Swee Teck v PP (2018) 4 CLJ 782 (CA) – whether question of
law arose – whether applicant’s argument mixture of facts or
merits of case and law – whether in accordance with section 50
(2) CJA 1964.
• PP v Mohamed Shahabuddin Mohamad Ali & Ors (2018) 8 CLJ
535 (CA) – Ruling by trial judge for accused persons to enter
defence on amended charge – appeal against ruling by trial judge
– competency of appeal, whether constituted final order within
meaning of section 3 CJA 1964.

(ii) Section 51 CJA – Notice of Appeal

• Proviso to section 51(2)
• PP v Mohd Hussein Mohd Kassim [2018] 1 CLJ 342 (CA) – filing
by way of fax transmission, whether considered as filing of notice
of appeal, whether court official had authority in accepting
documents not in accordance with prescribed rules and procedure
– Rules of the Court of Appeal 1994, rule 58 (1).

(iii) Section 52 (1) CJA

• Lorraine Phylis Cohen & Anor v PP (1989) 2 MLJ 288

(iv) Section 53 CJA – Petition of Appeal

(v) Section 56 CJA

• PP v Azman Abdul Ghani (2007) 3 CLJ 135 (CA)

(vi) Section 60 CJA – Powers of Court of Appeal

• Dato Mokhtar bin Hashim v PP (1983) 2 MLJ 232
Criminal Procedure 369

• PP v Barlow & Chambers (1986) 1 CLJ 441

• Ramli bin Kechik v PP (1986) 1 CLJ 308
• Mohd Osman bin Pawan v PP (1989) 2 MLJ 110
• Yusoff bin Kassim v PP (1992) 2 MLJ 183
• Rosli bin Supardi v PP (2002) 3 MLJ 256 (CA)
• PP v Hanif Basree Abdul Rahman (2007) 2 CLJ 33 (CA)
• Other cases:
o Nawi v PP (1936) MLJ 71
o Goh Ah Too v Reg (1956) MLJ 139
o Mohamed bin Jamal v PP (1964) MLJ 254
o Muniandy v PP (1966) 1 MLJ 257
o Wee King Hock v PP (1971) 2 MLJ 96
o Mohamed bin Musa v PP (1972) 1 MLJ 61
o PP v Oh Ke Ang Seng (1976) 1 MLJ 61
o PP v Tai Chai Geok (1978) 1 MLJ 152
o PP v Lim Eng Chye (1978) 1 MLJ 200
o Kulasingam v PP (1978) 2 MLJ 243
o PP v Ooi Khai Chin & Anor (1979) 1 MLJ 112
o PP v Yep Siong (1983) 1 MLJ 415
o Leong Hong Khie v PP (1986) 2 MLJ 206
o Barlow v PP (1986) 2 MLJ 104
o Krishnan v PP (1987) 1 CLJ 28
o Munusamy v PP (1987) 1 CLJ 250
o Jaafar b. Abu v PP (1988) 2 MLJ 363
o Ruthinin Suhaimin v PP (2015) 3 CLJ 838
o Mohammad Rafi v PP & other appeals (2015) 4 CLJ 446
(CA)
o PP v Dato Dr Ahmad Ramzi Ahmad Zubir (2015) 6 CLJ 1028
(CA)
Criminal Procedure 370

• Article:
o Professor Ahmad Ibrahim; ‘Appeal from acquittals in the High
Court’ (1978) JMCL 167

3. Appeal to Federal Court

• Courts of Judicature Act 1964 (CJA) :

o Section 87 CLJ
▪ Amri Ibrahim & Anor v PP (2017) 1 CLJ 617 (FC) – fact finding of
High Court and Court of Appeal, whether Federal Court agrees with
finding of courts below; whether convictions safe.
o Section 89 CJA – stay of execution and bail pending appeal
o Section 92 CJA - Powers of the Federal Court
o Inherent jurisdiction of the Federal Court – Rule 137
▪ Tan Sri Eric Chia Eng Hock v PP (2007) 1 CLJ 565 (FC)
▪ Dato’ Seri Anwar Ibrahim v PP (2016) 6 CLJ 161 (FC) – adducing of
further evidence at hearing of review application.

XIX: CRIMINAL REVISION

1. Section 31 Courts of Judicature Act 1964

2. Chapter 31 CPC - Section 323 to 327

(a) Section 323(1) CPC

(i) Purpose of calling for the record of any proceedings is to determine
the correctness, legality or propriety of any finding, sentence or order
recorded or passed, and as to the regularity of any proceedings of a
subordinate court.
Criminal Procedure 371

(ii) Object is for the High Court to have a ‘paternal or supervisory

jurisdiction’ in order to correct or prevent a miscarriage of justice.
• Emperor v Nasrullah and Others (1928) AIR All 287
• Ramanathan Chettiar v Subramaniam Aygar ILR 47 (Mad) 722
• Chunbidya & Ors v Emperor (1935) AIR PC 35
• Hari Ram Seghal v PP (1981) 1 MLJ 165
• Re Pang Po Pah (1985) 2 MLJ 214
• Liaw Kwai Wah and Anor v PP (1987) 2 MLJ 69
• Ja’afar bin Abu and Anor v PP (1988) 2 MLJ 363
• PP v Roslan Imun (1999) 3 MLJ 659 – it has to be exercised
sparingly and only when there appears to have been miscarriage
of justice or a perverse or unreasonable decision.
• PP v Kamal Hisham Jaafar (2016) 1 CLJ 363 (HC) – confirmed by
the CA.

(iii) The court cannot call for the record just for the purpose of satisfying its
curiosity.
• Mahabir Singh & Anor v Emperor (1944) Cal 17 (FB)

(b) Section 324(1) CPC

Refers to to a private summons case and upon revision, further inquiry may be
ordered.

(c) Section 325(1) CPC - Powers of Judge on revision

(i) The various modes of revision are:

• Judge himself calls for record of proceedings.
• Judge comes to know either through newspaper or letter.
• Sessions Judge or Magistrate sends case to judge
Criminal Procedure 372

• Application by party to a criminal proceeding by way of

Miscellaneous Criminal Application.
o PP v Kulasingam (1974) 2 MLJ 26
o Re Lee Kim Ching (1974) 2 MLJ 44
o PP v Mah Chuen Lim (1975) 1 MLJ 95
o PP v David Noordin (1980) 1 MLJ 146
o PP v Khairuddin (1982) 1 MLJ 331
o Re Rasiah Munusamy (1983) 2 MLJ 294
o PP v Then Mee Kom (1983) 2 MLJ 294
o Gurdit Singh v PP (1983) 1 MLJ 344

(ii) An acquittal cannot be converted to a conviction.

• Section 325(3) CPC
o Re Lee Kim Shang (1974) 2 MLJ 44
o Philip Lau Chee Heng v PP (1988) 3 MLJ 107

(d)Section 326 CPC

(i) On the right to be heard.

• PP v Mohamed Tarmizi (1985) 1 MLJ 219
• PP v Roslan bin Yahaya (1985) 2 MLJ 218

(ii) Section 36 CJA

• Sections 31 and 35 CJA:
• Tan Sri Eric Chia Eng Hock v PP (2007) 1 CLJ 565, 598 FC

XX: SPECIAL PROCEEDINGS

CHAPTER XXXII CPC

1. Enquiries of Death: (Section 328 to 341A CPC)

Criminal Procedure 373

(b) Meaning of “cause of death”: Section 328 CPC

(c) Duty of police officer to investigate death: Section 329 CPC

(d) Duty of officer to arrange for post-mortem examination in certain cases:

Section 330 CPC

(e) Post-mortem examination of body: Section 331 CPC

(f) Report of Government Medical Officer: Section 332 CPC

(g) Duty of Magistrate on receipt of report: Section 333 CPC

(h) Inquiry into cause of death of a person in custody of police or in any

asylum: Section 334 CPC

(i) Powers of Magistrate: Section 335 CPC

(j) Magistrate may view body: Section 336 CPC

(k) Inquiries to be made by Magistrate: Section 337 CPC

(l) Evidence and findings to be recorded: Section 338 CPC

(m) Power of Public Prosecutor to require inquiry to be held: Section 339 CPC

(m) Admissibility of medical report in certain cases: Section 340 CPC

(n) Custody of proceedings: Section 341 CPC

Criminal Procedure 374

(o) Power to Revise: Section 341A CPC

2. Practice Directions:

(a) Practice Direction No. 1 of 2007: Guidelines on Inquest restated in

Practice Direction No. 2 of 2014.

(b) “Arahan Amalan Bil. 2 Tahun 2014: Pengendalian Siasatan Kematian

(Death Inquiry) Selaras dengan Penubuhan Mahkamah Khas Koroner

3. Cases:
✓ PA Anselam v PP (1941) MLJ 157
✓ Re Derek Selby (Deceased) (1971) 2 MLJ 277
o PP v Seeralan (1985) 2 MLJ 30
✓ Re Loh Kah Kheng (deceased) (no.2) (1990) 2 MLJ 126
✓ PP v Muhairi bin Mohd Jani & Anor (1996) 3 MLJ 116
✓ PP v Shanmugam & 5 ors (2002) 6 MLJ 562
✓ Sara Lily & Satu Lagi v PP (2004) 7 CLJ 335
✓ Inquest into the Death of Anthony Chang Kim Fook (2007) 2 CLJ 362
o Inquest into the Death of Rumie bin Mahlie (2007) 10 CLJ 697
✓ Retnarasa Annarasa v PP (2008) 4 CLJ 90
✓ Vasanthi a/p Perumal & Anor v Tan Sri Gani Patail & Ors (2009) 7 MLJ
391
✓ Ho Kooi Sang v Universiti Malaya (2004) 2 MLJ 516
✓ Re Inquest into the Death of Sujatha Krishnan, Deceased (2009) 5 CLJ
783
✓ Inkues Terhadap Kematian Teoh Beng Hock, Permohonan Jenayah Inkues
No. 88-10-2009
o Re Chung Sui Keong deceased; Criminal Revision No. 43-02-2009(1)
(25.01.2010)
o Teoh Meng Kee v PP (2014) 7 CLJ 1034 CA
Criminal Procedure 375

Also see:
o Abdul Rani Kamarudin;’Between the Adversarial and the Inquisitorial Trial’
(2007) 2 MLJ xi; (2007) 2 MLJA 11

o Abdul Rani Kamarudin;’Inquiry of deaths under the Malaysian Criminal

Procedure Code’ (2009) 5 MLJ lxviii-lxxxii

o Noorfajri Ismail; ‘Application of International Convention on Human Rights

in British Coronial System as an Example for Malaysia’ (2011) 1 LNS (A)
xxxviii (CLJ)

oo0oo
 EVIDENCE

© All rights reserved 2020

No part of this outline may be reproduced without the permission of the Qualifying Board, Malaysia
Evidence 376

PREFACE

INTRODUCTION

1. This subject is primarily based on the Evidence Act 1950 (Act 56). Essentially, it
deals with the object of legal proceeding which is the determination of rights
and liabilities depending on the facts presented in accordance with law. The
study, amongst others, includes the following:

(a) Fact in issue;

(b) Facts relevant to the issue;

(c) Relevancy and admissibility of evidence in a court of law;

(d) Oral and documentary evidence;

(e) Examination of witnesses;

(f) Probative value of evidence; and

(g) Manner of proof.

2. Candidates are required to have a practical and working knowledge and

understanding of the law of evidence i.e. to examine the relevant
provisions of the Evidence Act 1950, case authorities and other legal principles
applicable. As such, the examination is a test of the candidates' ability to
correctly identify evidential issues and to apply the relevant evidential
principles so as to prepare them for legal practice. Upon successful completion
of the examination, candidates will be sensitized to the mechanics of the law
of evidence as applicable in legal practice.
Evidence 377

B. SALIENT STATUTES

Evidence Act 1950 (Act 676)

Electronic Commerce Act 2006 (Act 658)
Electronic Government Activities Act 2007 (Act 680)
Sexual Offences Against Children Act 2017

C. TEXTBOOKS AND REFERENCES

1. Sarkar Law of Evidence, Malaysia Edition – 3 Volumes, LexisNexis Malaysia

2. Mariette Peters – Law of Evidence in Malaysia, LexisNexis Malaysia

3. Jeffrey Pinsler, SC – Evidence and The Litigation Process, LexisNexis, 6th

edition

4. Dr. Hj. Hamid Sultan Bin Abu Backer - Janab's Key to Criminal Procedure and
The Law of Evidence Advocacy & Professional Ethics 5th Edition, Janab (M) Sdn
Bhd

5. Augustine Paul – LexisNexis Malaysia

6. Rafiah Salim - Evidence in Malaysia and Singapore: Cases, Materials and

Commentary, Butterworths, 1994

7. Chin Tet Yung – Evidence, Butterworths, 1988

D. EXAMINATION

1. There will be SEVEN (7) questions in the examination paper.

2. Candidates are required to answer ONE (1) COMPULSORY question

and THREE (3) out of SIX (6) questions. A question may be divided into
several parts and may deal with more than one (1) area of the law of
evidence.
Evidence 378

3. Candidates are allowed to refer to the Evidence Act 1950, which will be
provided during the examination. Candidates are not allowed to bring into
the examination hall their own copy of the said statute or any other statutes
not specified here.

4. Candidates are obliged to know the relevant provisions on evidence in the

Electronic Commerce Act 2006 (Act 658), Electronic Government Activities Act
2007 (Act 680) and the Sexual Offences Against Children Act 2017.

ooOoo
Evidence 379

A. PRELIMINARY MATTERS

1. History and Purpose of the law of evidence

(a) In 1872, Sir James Stephen became responsible for codifying the Indian
Evidence Act. It has been said that the Act was intended and in fact was a
consolidation of the English Law of Evidence and it was “an attempt to
reduce the English law of evidence in the form of express propositions
arranged in their natural order with some modifications rendered
necessary by the peculiar cirumstances of India.”

(b) The Malaysian Evidence Act 1950 (Act 56 – Revised 1971) (EA) was
practically adopted from the Indian Evidence Act with some slight
changes. It is therefore still a necessity to keep on referring to common
law cases on the law of evidence and the historical development of
evidentiary law in England to aid us in case of a lacuna in our Act or
where there is an ambiguity or uncertaintly in the interpretation of certain
words and phrases found in the sections.

(c) Evidence concerns facts that need to be proved in a court of law and
procedure concerning the giving of evidence. The determination of a legal
dispute by the court normally involves two tasks: first, the selection of the
legal rules to apply to the case and, second, the proof of the facts on
which the applicability of the rules depends. The law of evidence governs
the second of these tasks in general, therefore, the rules of evidence
provide for the relevancy and proof of facts. (Chin Tet Yung, Evidence,
Butterworths Singapore Malaysia 1988 at page 4.)

(d) According to Stephen, the law of evidence determines ‘how the parties
are to convince the Court of the existence of that state of facts which,
according to the provisions of substantive law, would establish the
existence of the right or liability which they allege to exist’. (Sir James
Evidence 380

Fitzjames Stephen, Introduction to the Indian Evidence Act, reproduced in

full in Chapters II to V, Woodroffe & Ameer Ali.).

(e) The primary concepts of the law of evidence are:

(i) Relevance;
(ii) Admissibility; and
(iii) Best evidence rule.

• The test on ‘relevance’ is, has the evidence given any relevance
to the issue before the court?

• Even if it is relevant, it may be turned down on grounds of

non-admissibility. Thus, both tests have to be satisfied.

• Ultimately only the best evidence is admissible.

2. Concept of relevancy

(a) per Chong Siew Fai CJ (Sabah & Sarawak) in Thavanathan a/l
Balasubramaniam v PP [1997] 2 MLJ 401:

“… of the law of evidence the cardinal rule relating to relevancy is

that, subject to the exclusionary rules, all evidence which is sufficiently
relevant to the facts in issue is admissible”.

(b) What is the difference between –

• logical relevancy
• legal relevancy
3. Admissibility of evidence

(a) Sections 136, 137 and 138 EA

Evidence 381

(b) Section 136 EA provides that it is for the Court to decide as to

admissibility of evidence

(c) Section 137 and Section 138 EA deals with the nature and order of
examination-in-chief, cross examination and re-examination

(d) What is the relationship between relevancy and admissibility?

“When either party proposes to give evidence of any fact, the court may
ask the party proposing to give the evidence in what manner the alleged
fact, if proved, would be relevant; and the court shall admit the evidence
if it thinks that the fact, if proved would be relevant, and not otherwise.
Questions of admissibility of evidence are questions of law and are
determinable by the judge. If it is the duty of the judge to admit all
relevant evidence, it is no less his duty to exclude all irrelevant evidence.”
per Augustine Paul J in PP v Dato’ Seri Anwar bin Ibrahim (N0. 3) [1999]
2 MLJ 1.

• Re Loh Kah Kheng [1990] 2 MLJ 126

• Re Loh Kah Kheng (No. 2) [1990] 2 MLJ 237
• PP v Dato’ Seri Anwar Ibrahim (No. 3) [1999] 1 MLJ 321
• Yee Wen Chin v PP (and Another Appeal) [2008] 6 AMR 321
• Dato Hj Husam Hj Musa v Md Faisal Rohban Ahmad [2015] 1 CLJ
787 (CA) – Evidence accepted as relevant by court and marked as
exhibit without objection by defendant - whether court could
subsequently exclude exhibit.
• Dato Seri Anwar Ibrahim v PP & another appeal [2015] 2 CLJ 145
(FC) – Reversal by trial judge after admitting exhibits, can he do so?

4. Weight of evidence

(a) Actual probative value of the evidence as perceived by the judge.

Evidence 382

(b) What is the relationship between relevancy, admissibility and the weight
of the evidence?

(c) What is the difference between admissibility and weight?

5. Application and extent of EA

(a) Section 2 EA – Provides that the EA shall apply to all judicial proceedings
but not to affidavits presented to any court or officer nor proceedings
before an arbitrator.
• Malaysia Building Society Bhd v Univein Sdn Bhd [2003] 5 MLJ 394
• Far East Holdings Bhd & Anor v Majlis Ugama Islam dan Adat Resam
Melayu Pahang and other appeals [2018] 1 MLJ 1

(b) What is the meaning of ‘judicial proceeding’? Does it include an ‘inquest’?

• Re Loh Kah Keng [1990] 2 MLJ 126

(c) What is the meaning of ‘court’? Does it include the Syariah Court?
• Ainan v Syed Abu Bakar [1939] MLJ 209

(d) Special rules on evidence are also found in other statutes, some of which
may prevail over the provisions of the EA. The most significant of the
statutes is the Criminal Procedure Code (Act 593) (CPC) where there are
special provisions relating to evidence applicable to criminal cases. The
CPC provides inter alia, for the admissibility of out-of-court statement of a
witness and an accused person, and reports of certain type of experts, as
well as the conduct of criminal trials in general. See inter alia sections
113, 119 (2), 256 and Chapter XXXIX of the CPC.
Evidence 383

(e) Other statutes which contain rules of evidence ancillary to the substantive
law with which they deal are like the Dangerous Drugs Act 1952 (Act 234)
which contain many statutory presumptions affecting the burden of proof,
Malaysian Anti-Corruption Commission Act 2009 (Act 694) which has
provisions protecting informers etc.

6. Principles of interpretation and the role of common law

(a) Position of the EA

• R v Jayasena [1970] 1 All ER 219
• PP v Sanassi [1970] 2 MLJ 198

(b) Role of the common law

(i) As an aid to interpretation

“In Malaysia, as in India, the law of evidence has been embodied in

a statutory code: the Evidence Ordinance. In so far as any part of
the law relating to evidence is expressly dealt with by that Ordinance
the Courts in Malaysia must give effect to the relevant provisions of
the Ordinance whether or not they differ from the common-law rule
of evidence as applied by the English Courts.”
per Lord Diplock in PP v Yuvaraj [1969] 2 MLJ, 89

(ii) When the EA is silent

• per Lord Diplock in PP v Yuvaraj [1969] 2 MLJ 89.

“But no enactment can be fully comprehensive. It takes its

place as part of the general corpus of the law. It is intended to
be construed by lawyers, and upon matters about which it is
silent or fails to be explicit it is to be presumed that it was not
the intention of the legislature to depart from well established
Evidence 384

principles of law.”

• Bank of England v Vagliano Bros [1891] AC 107

• PP v Yuvaraj [1969] 2 MLJ 89
• R v Jayasena [1970] 1 All ER 219
• Goi Ching Ang v PP [1999] 1 MLJ 507

(c) Function of illustrations in the EA

(i) Illustrations in the Act is an aid and useful in the construction of the
text.
• Mohd Syedol Ariffin v Yeoh Ooi Gark [1916] 1 MC 165

(ii) Marginal Notes

• per Terrel J in Re Tan Keng Tin & Re Chop Soon See [1932]
MLJ 134

“The Marginal notes to the Ordinances of the Straits Settlement

are part of the Ordinance and may be referred to for assistance
in interpretation.”
• Re Tan Keng Tin & Re Chop Soon See (1932) MLJ 134
• Sinthambaran v Attorney General [1972] 2 MLJ 175
• Foo Loke Ying & Anor v Television Broadcasts Ltd & Ors [1985]
2 MLJ 35

7. Classification of evidence

(a) Oral evidence – given by a witness in court – Section 3 and section 59 EA.

• Pursuant to section 119 EA a dumb witness can give evidence

through signs or writing with the exception that it is given in an
open court, which will then be regarded as “oral” evidence.
Evidence 385

• Take note of the use of the word “verbal” evidence and not “oral”
evidence in section 32 EA.

(b) Documentary evidence – information obtained from the documents, tape

recordings - sections 3 and 59 Chapter V EA.

(c) Real evidence – production of material objects for inspection by the Court,
e.g. a stolen car.

• It can include appearance of a person – physical characteristics e.g.

left handed, tall, short, etc.;
• Court can also “view” evidence i.e. go to the scene of crime or a
certain place where for e.g. an accident has occurred.
• See also section 60(3) EA.
• Tenaga Nasional Berhad v Api-Api Aquaculture Sdn Bhd [2015] 1
LNS 65
• Public Prosecutor v Ramli Bin Shafie [2002] 6 MLJ 153

(d) Direct evidence – two (2) meanings; as opposed to circumstantial

evidence and hearsay evidence. See section 60 EA:

(i) “I saw the accused kill the deceased with a gun” – this is direct
evidence.

(ii) “I heard gun shots and a few minutes later saw the accused run out
of the house” – it is circumstantial as the court has to make a
deduction or draw the necessary inference.

8. Best Evidence Rule

(a) Meaning
Evidence 386

(i) The general rule is that the best evidence must be given if it can
possibly be obtained. If it appears that there is better evidence than
that produced, the non-production of the better evidence creates a
presumption that its production would reveal something adverse to
the party calling it, e.g. it is better to produce an article than to
describe it or produce a photograph of it. An original document is
better than a copy. The description of an event from one who saw it
is better than that from one to whom it was described.

(ii) “The judges and sages of the law have laid it down that there is but
one general rule of evidence, the best that the nature of the case
will allow.”

per Lord Hardwicke in Omychund v Barker [ 1745] 1 Atk 21.

(iii) R v Onufrejczyk [1955] 1 AER 247 – The issue in this case is if there
is no direct evidence available can the court rely on circumstantial
evidence. It was argued that in a case involving an offence of
murder, evidence as to the body of the deceased must be adduced
in court, without which a case is not proved. The court rejected the
argument and adopted the test that on a criminal charge of murder
the fact that the murdered man was killed, like any other fact, can
be proved by circumstantial evidence, being evidence, which leads
only to that one conclusion of fact, although no body is found.

(b) Traditional state of the law (strict application – where it has a bearing on
the admissibility of evidence)
• Omychund v Barker [1745] 1 Atk 21
• R v Quinn & Bloom [1962] 2 MLJ 114

(c) Current position of the law (where it has a bearing only on the weight of
Evidence 387

evidence)
• Kajala v Noble [1982] 75 Cr App Rep 149
• Greenaway v Homelea Fittings (London) Ltd [1985] WLR 234

(d) Malaysian position

• Ho Chien v PP (1936) 1 JLR 114
• Teoh Kee Keong v Tambun Mining Co Ltd [1968] 1 MLJ 39
• Chow Siew Woh v PP [1967] 1 MLJ 228
• PP v Lim Kuan Hock [1967] 2 MLJ 114
• KPM Khidmat Sdn Bhd v Tey Kim Suie [1994] 2 MLJ 627
(Application of the rule in cases involving documentary evidence)
• Gnanasegaran v PP [1997] 3 MLJ 1
• PP v Mohd Jelani bin Sulaiman [1997] 5 MLJ 551
• Muhammad bin Hassan [1998] 2 MLJ 273
• Tan Sri Eric Chia Eng Hock [2006] 3 MLJ 693
• PP v Nomezan Apandy bin Abu Hassan (No.2) [2008] 1 MLJ 681
• Darahman bin Ibrahim & Ors v Majlis Mesyuarat Kerajaan Negeri
Perlis & Ors [2008] 4 MLJ 309
• Choong Yik Son v Majlis Peguam Malaysia [2008] 7 MLJ 215
• PP v Norfaizal Bin Mat (No.2) [2008] 7 MLJ 792

B. RELEVANCY

1. Section 5 EA

(a) Evidence not relevant should not be admissible.

(b) Inadmissible evidence should not be admitted even if the parties do not
say so.

(c) The duty is bestowed on the Judge.

Evidence 388

(d) The words in the section “and of no others”, in conjunction with the
language of the other portion of the Act, tend to show that the court, of
itself irrespective of the parties, takes objection to evidence tendered
before it which is not admissible.

2. Section 6 EA

(a) Explanatory facts in proceedings although may not be important, it

actually explain a fact in issue, thus it is relevant and admissible.

(b) Also referred to as “res gestae”, that is spoken words which form part and
parcel of the transaction, statements made at the time, or part of the
incident itself, are admissible:

• The statement must be contemporaneous;

• A statement made by the deceased person immediately after he was
knocked down was held admissible but where a woman with her
throat cut came out from a room which contained only the accused
and made statement, it was held to be inadmissible by Cockburn J in
R v Beddingfield.

(c) A statement like “Don’t Harry” is likely to be held admissible whilst “See
what Harry has done to me” is not, unless circumstances were such as to
make it admissible as a dying declaration.

(d) To consider and discuss whether section 6 EA is an exception to the rule

against hearsay?

(e) Cases which illustrates the judicial use of the res gestae doctrine relating
to the acts of the accused that are closely related in time and place to
the facts in issue:
Evidence 389

• Tan Geok Kwang v PP [1949] MLJ 203

• Jaafar b Hussain v PP (1950) 16 MLJ 154
• Wong Chik v PP (1950) 16 MLJ 157

(f) Cases which illustrates the judicial use of the res gestae doctrine relating
to the statements of the accused (in which difficulty arises as the
statements are usually made out of court and when tendered in evidence,
it will usually offend the hearsay rule):

• R v Beddingfield (1879) 14 Cox.C.C. 341

• Akerele v R [1943] 1 AER 367 (PC)
• Teper v R [1952] 2 AER 447
• Kok Ho Leng v R [1941] MLJ 119
• Mohamad bin Allapitchay v R (1958) 24 MLJ 197; 199.
• Kanapathy v Reg (1960) 26 MLJ 26
• Hamsa Kunju v R [1963] MLJ 228
• Ratten v R [1972] AC 378
• US v Napier (1975) 518 F 2d 316
• Leong Hong Khie & Tan Gong Wai v PP [1986] 2 MLJ 206 – has
accepted and applied Ratten
• R v Andrews [1987] 1 AER 513
• PP v Sam Hong Choy [1996] 1 CLJ 514
• PP v Aziz bin Muhamad Din [1996] 5 MLJ 473
• Thavanathan Balasubramaniam v PP [1997] 2 MLJ 401
• PP v Mohd Aszzid Abdullah v PP [2008] 1 MLJ 281
• Articles - Nijar [1975] JMCL 205
Chin [1987] 1 MLJ cxxix
Evidence 390

3. Section 7 EA

(a) Facts which are the occasion, cause or effect or which constitute the state
of things under which the relevant facts or facts in issue takes place or
which afforded an opportunity for their occurrence or transaction are
relevant.

(b) These facts are however, strictly not part of the same transaction or res
gestae.

• Kok Ho Leng v R (1941) MLJ Rep 119

• Sidik Kumar v R AIR 1942 Sind 11

• Dr Jainand v R AIR 1949 All 294
• Yusufalli v State AIR 1968 SC 141
• Thavanathan Balasubramaniam v PP [1997] 2 MLJ 401

4. Section 8 EA

Renders admissible, facts which are capable of showing motive, preparation

and conduct.

• Boota Singh v PP [1933] MLJ 195

• Lim Kong v PP [1962] MLJ 195
• Wong Foh Hin v PP [1964] MLJ 149
• Natha Singh v Emp. (1964) 49 BOM LR 225
• Chandrasekaran v PP [1971] 1 MLJ 153
• Malkhan Singh v U.P. AIR 1975 SC 12
• Prakash Chand v State [1979] AIR SC 400
• PP v Aziz bin Muhd Din [1996] 5 MLJ 473
• Thavanathan Balasubramaniam v PP [1997] 2 MLJ 401
• Lee Lee Chong v PP [1999] 1 AMR 925
• PP v Mohammad Terang Bin Amit [1999] 1 MLJ 154
Evidence 391

• PP v Mohd Amin Bin Mohd Razali & Ors [2002] 5 MLJ 406
• PP v Tan Kim Piow [2006] 5 MLJ 409, [2006] 5 AMR 23
• PP v Suzie Adrina Bte Ahmad [2006] 5 MLJ 135
• Amathevelli a/p Ramasamy v PP [2009] 2 AMR 281
• PP v Peter a/k Merupi [2009] 7 MLJ 563108
• Ibrahim Mohamad & Anor v PP [2011] 4 CLJ 113
• Mahadzir Yusof & Anor v PP [2013] 9 CLJ 287
• Yap Boon Thai v PP [2013] 6 MLJ 236
• Said Ghavam v PP [2013] 5 MLJ 510
• Duis Akim & Ors v PP [2013] 9 CLJ 692 (FC)
• Fakhurrazi Hasan v PP [2017] 2 CLJ 125 (FC)
• Pathmanabhan Nalliannen v PP & Other Appeal [2017] 4 CLJ 137 (FC)

5. Section 9 EA

Provides for the following to be relevant so far as they are necessary for the
purpose stated:

(i) facts necessary to explain or introduce a fact in issue or relevant fact.

(ii) facts which support or rebut an inference suggested by a fact in issue.

(iii) facts which establish the identity of anything or person whose identity is
relevant.

(iv) facts which fix the time or place at which any fact in issue or relevant fact
happened.

(v) facts which show the relation of parties by whom any such fact was
transacted.

• Girdari Lall v PP [1946] MLJ87

Evidence 392

• PP v Amar Singh [1948-49] MLJ Supp 55

• Chan Sin v PP [1949] MLJ 106
• Loke Soo Har v PP [1954] MLJ149
• Teng Kum Seng v PP [1960] MLJ 225
• Toh Kee Huat v PP [1965] MLJ 76
• Ong Lai Kim v PP [1991] 3 MLJ 111
• Thavanathan Balasubramaniam v PP [1997] 2 MLJ 401
• Arumugam Muthusamy v PP [1998] 3 CLJ 597
• Jaafar b. Ali v PP [1999] 1 CLJ 410
• PP v Ayyavoo a/l Subramaniam & Anor [2004] 6 MLJ 511
• Amathevelli a/p Ramasamy v PP [2009] 2 AMR 281
• Parlan Bin Dadeh v PP [2008] 6 MLJ 19
• Alan Thomas Bohise v Drafts Worldwide Sdn Bhd [2009] 8 MLJ 461
• Khairuddin Bin Hassan v PP [2010] 6 MLJ 145
• Ibrahim Mohamad & Anor v PP [2011] 4 CLJ 113

6. Section 10 EA

(a) In conspiracy cases, to prove a charge of conspiracy, acts done or

statements made by one of several conspirators in furtherance of the
common purpose are evidence against all;i.e. acts done and statements
made up to the time the common purpose was achieved.

(b) Evidence given of a statement made by one conspirator in furtherance of

the conspiracy in the absence of one of his fellow conspirators would be
hearsay evidence against the latter, but would be admissible.

• Mirza Akbar v King Emperor AIR 1940 PC 176

• Liew Kaling v PP [1960] MLJ 306
• Khalid Panjang v PP [1964] MLJ 108
Evidence 393

7. Section 11 EA

(a) “That section (in reference to section 11 EA) no doubt is expressed in

terms so extensive that any fact which can, by a chain of rationication, be
brought into connection with another, so as to have a bearing upon a
point in issue, may possibly be held to be relevant within its meaning. But
it has its limitation. It does not admit of collateral facts which are not
reasonably conclusive and which practically have no connection with the
main fact.”

per Raja Azlan Shah J (as he then was) in the case of Ismail and Abdul
Ghafar v Hasnul [1968] 1 MLJ at page 111 – 112.

(b) Section 11 (b) EA is recognized judicially as a provision allowing for the

admissibility of similar fact evidence. It declares relevant facts not
otherwise relevant where these make the existence of facts in issue or
other relevant facts ‘highly probable’ or improbable. The illustrations
appended to the section however are not of similar facts situations
Nevertheless, the section is capable of being construed to include similar
facts and that is how judges appear to have treated it.

(Chin Tet Yung, Evidence, Butterworths Singapore Malaysia 1988 at page

101)

(c) See for example the following cases

• Abubakar bin Ismail v R (1954) 20 MLJ 67.

• R v Pharbudas (1874) 11 BHC 90

• Ismail and Abdul Ghafar v Hasnul [1968] 1 MLJ 108
• PP v Dato Seri Anwar Ibrahim (No. 3) [1999] 2 MLJ 1
• PP v Mohd Amin Bin Mohd Razali & Ors [2002] 5 MLJ 406
• Re Teoh Beng Hock [2010] 1 MLJ 715
• Mohammad Abdullah v PP [2011] 2 CLJ 481
Evidence 394

• Pathmanabhan Nalliahnen v PP & other appeal [2016] 1 CLJ 377

(CA); [2017] 4 CLJ 137 (FC)

8. Section 12, 13 EA

9. Section 14 EA

Facts showing the existence of any state of mind or state of body or bodily
feeling when the existence of any such state of mind or body or bodily feeling
is in issue or relevant.

• Boota Singh v PP [1933] MLJ 195

• Saw Thean Teik v R (1953) 10 MLJ 124
• James v R (1963) 5 MLJ 8Teh Eok Kee & Anor v Tan Chiah Hock & Anor
[1995] 3 MLJ 613
• Sabarudin Bin Non & Ors v PR [2005] 4 MLJ 37

10. Section 15 EA

(a) Renders admissible evidence of system or similar fact evidence.

Constitutes together with section 14 EA, an exception to the general rule
that all evidence of res inter alios actae is not admissible. To be read
together with section 14 EA.
• Makin v AG fo NSW [1894] AC 57
• R v Ball [1911] AC 411

(b) Jacob v PP (1948-49) MLJ Supp 20 – evidence of ‘system’ should not be

tendered before the principal witness has given evidence, for it is usually
only after cross-examination of such a witness that the defense will be
revealed. This rule is premised on the view that evidence tendered under
section 15 EA should be confined to the rebuttal of a defense of accident,
mistake or other conditions of mind. Callow J continued to say that the
Evidence 395

defense may even be anticipated and the evidence of system is adduced

to show an accused person has been concerned in conduct of the same
kind and proximate in time to the conduct in question.
• Noor Mohamed v R [1949] AC 182
• Harris v DPP [1952] AC 694
• PP v Wong Foh Hin (1964) 30 MLJ 149
• PP v Ang An An & Eng Hock [1970] 1 MLJ 217
• PP v Ong Kok Tan [1969] 1 MLJ 118
• Re Teoh Beng Hock [2010] 1 MLJ 715
• Al Bakhtiar Ab. Samat v PP [2012] 7 CLJ 458

(c) Ultimately according to Chin Tet Yung, Evidence, Butterworths, 1988 at

page 18, which is also a salutary rule in legal practice that :

“No purpose will be served by examining all the case law on the
‘relevancy’ sections. It is sufficient to observe that the courts make the
effort to refer expressly to the relevancy sections mainly to justify
admissibility of facts when objection is made on the ground that the
admission of such facts is prejudicial to the defendant. This is not entirely
satisfactory as it leaves open the real issue which is whether the
prejudicial effect of the evidence outweighs its ‘probative value’ (or
relevancy) and hence ought not to be admitted. Presumably the judge
can exercise his discretion to exclude such evidence.”

C. HEARSAY

• Meaning

(a) Evidence of what a witness testifies in court about what he heard from a
third party who himself is not called as a witness.

“Evidence of a statement made to a witness by a person who is not

Evidence 396

himself called as a witness may or may not be hearsay. It is hearsay and

inadmissible when the object of the evidence is to establish the truth of
what is contained in the statement. It is not hearsay and is admissible
when it is proposed to establish by the evidence, not the truth of the
statement but the fact that it was made.”

per LMD de Silva in Subramaniam v Public Prosecutor [1956] MLJ 200.

(b) Section 60 EA – All oral evidence must be direct – an expression of the

rule against hearsay.

• Lim Ah Oh v R (1950) 16 MLJ 269

• Subramaniam v PP [1956] MLJ 220
• Ratten v R [1972] AC 378
• Leong Hong Khie v PP [1986] 2 MLJ 206
• R v Blastland [1986] AC 41
• Palldas a/l Arumugam [1988] 1 CLJ 661
• Ng Lai Huat v PP [1990] 2 MLJ 427
• PP v Robert Boon Teck Chuah [1995] 1 CLJ 102
• PP v Dato’ Seri Anwar Ibrahim (No. 3) [1999] 2 MLJ 1
• Poh Siew Cheng v American International Assurance Co Ltd [2006] 6
MLJ 57
• Tekital Sdn Bhd v Auto Parking Inc [2011] 1 LNS 1098
• Dato Sukri Hj Mohamed v Wan Muhammad Azri Wan Deris [2016] 4
CLJ 654 (CA) – failure to produce documentary evidence in support
of oral testimony; whether it renders the oral evidence not to be
believed.

2. Rationale for the rule against hearsay

(a) “The rule against the admission of hearsay evidence is fundamental. It is

not the best evidence, and it is not delivered on oath. The truthfulness
and accuracy of the person whose words are spoken by another witness
Evidence 397

cannot be tested by cross-examination and the light which his demeanour

would throw on his testimony is lost.”

Per Lord Normand in Teper v R [1952] AC 480.

(b) Hearsay evidence is evidence which the witness does not know himself
but which he has heard from somebody else. It is generally inadmissible
unless said in the presence of the accused. It is not admissible because it
cannot be questioned. The person who tenders the statement is only
repeating what he has heard, not what he knows, and the person who
made the statement is not present to question and was not on oath when
he made it. There is, therefore, no opportunity to cross-examine.

3. Forms of hearsay

(a) Statements
• Subramaniam v PP [1956] MLJ 220
• Ng Lai Huat v PP [1990] 2 MLJ 427
• PP v Robert Boon Teck Chuah [1995] 1 CLJ 102
• Teh Eok Kee & Anor v Tan Chiah Hock & Anor [1995] 3 MLJ 613

(b) Documents
• R v Rice [1963] 1 All ER 832
• Patel v Comptroller of Customs [1965] 1 CLJ 102
• Beh Heng Seong v PP [1972] 2 MLJ 190
• Sim Tiew Bee v PP [1973] 2 MLJ 200
• Nahar Singh v Pang Hon Chin [1986] 2 MLJ 141
• Myers v DPP [1990] 2 MLJ 427

(c) Conduct
• Chandrasekara v R [1937] AC 221
Evidence 398

4. Types of hearsay assertions:

(a) Express assertion in statements or conduct.

• Chandrasekara (alias Alisandiri) v R [1937] AC 220
• Subramaniam v PP (1956) MLJ 220
• Patel v Comptroller of Customs [1966] AC 356 (PC)
• Tang Lew Keng v PP [1968] 2 MLJ 48
• Beh Heng Seong v PP [1972] 2 MLJ 190
• PP v Robert Boon Teck Chuah [1995] 1 CLJ 102

(b) Implied assertions in statements or conduct not intended to be assertive

but which rest on some assumption of fact believed by the maker of the
statement or the doer of the act which can be inferred by the court.
• Wright v Doe d’Jatham [1837] A & E 313
• Teper v R [1952] AC 480
• R v Rice [1963] 1 All ER 832
• Walton v Queen [1989] 63 AJLR 226
• R v Kearley [1991] Crim LR 282
• (Compare with Koh Ho Leng v R [1941] MLJ 119)
• Pollitt v Queen [1992] 66 AJLR 613

(c) Hearsay and Opinion – see section 399 and 399A, 399B Criminal
Procedure Code.

(d) Effect of admission of hearsay evidence

• PP v Ee Boon Keat [2006] 2 MLJ 633

5. Exceptions to the hearsay rule (the following are the main

exceptions) -

(a) Section 6 EA.

Evidence 399

(b) Sections 17 to 31 EA.

(c) Section 32 EA.
(d) Section 33 EA.
(e) Sections 34 to 38 EA – Statements made under special circumstances.
(f) Section 73A, section 90A, section 90B, section 90C, section 158, section
159 (2) EA.

6. Res gestae / Section 6 EA

• See above for case authorities

7. Admissions and Confessions – sections 17 to 31 EA

• Mohd Nazari v Tan Keo Hock [1999] 1 CLJ 601

• PP v Dato’ Seri Anwar Ibrahim (No. 3) [1999] 2 MLJ 1
• Pathmanabhan Nalliahnen v PP & other appeal [2016] 1 CLJ 377 (CA)

8. Section 32 EA

(a) Statements made by certain persons who cannot be called as witnesses

are relevant, who are:

(i) dead, or

(ii) cannot be found, or

(iii) incapable of giving evidence, or

(iv) whose attendance cannot be procured without an amount of delay

or expense which in the circumstances are unreasonable.

The conditions above ought to be adhered to strictly:

• Md Ghouse v The King (1909) 11 SSLR 31

• Sim Tiew Bee v PP [1973] 2 MLJ 200
• Vaynar Suppiah v KMA Abdul Rahim [1974] 2 MLJ 183
Evidence 400

• Borneo Co Sdn Bhd v Penang Port Commission [1975] 2 MLJ 204

(b) Section 32(1) EA

• Sim Tiew Bee v PP [1973] 2 MLJ 200
• Ng Yiu Kwok v PP [1989] 3 MLJ 166
• Ben Foods (S) Pte Ltd v Limbangan Supermarket [1999] 1 AMR 23
• Capital Insurance Bhd v Cheong Heng Loong Goldsmiths (KL) Sdn
Bhd [2005] 6 AMR 177
• PP v Sim Kay Chay [2007] 5 MLJ 309
• Ch’ng Ping Teong v M & A Securities Sdn Bhd [2007] 6 MLJ 29
• Pendakwa Raya v Kua Tiong Ann [2009] 7 AMR 788
• Shamsul Kamar Karia v PP [2013] 9 CLJ 387

(c) Section 32(1)(a) EA – Statement as to the cause of death or

circumstances of the transaction which resulted in death are admissible if
relevant
• Haji Salleh v PP [1931-32] FMSLR
• Chandrasekara v R [1937] AC 221
• Yeoh Hock Cheng [1938] MLJ 104
• Pakala Narayana Swami v King Emperor [1939] MLJ 59
• King v Samarakoon Banda [1943] 44 NLR 169
• Toh Lai Heng v R [1961] MLJ 53
• Chan Phuat Khoon v PP [1962] MLJ 127
• Ong Her Hock v PP [1987] 2 MLJ 45
• Nembhard v R [1982] 1 All ER 183
• PP v Mohd Jamil [1993] 3 MLJ 702
• PP v Sumer Klom Klom [1996] 2 CLJ 359
• Yong Kong Tai (suing as a widow of Loh Keng Yuen, deceased, on
behalf of herself and the dependants of the deceased) & Ors v Salim
Bin Jalal & Anor [1997] 2 MLJ 380
• PP v Nomezam Apandy Bin Abu Hassan (No 2) [2008] 1 MLJ 681
Evidence 401

• Roslan bin Hussain v PP [2013] 6 MLJ 177

• Balan Subramaniam a/l Ponnudurai v PP & Anor [2013] 6 MLJ 306
• Murugan a/l Arumugam v PP [2017] 3 CLJ 377 (FC)

(d) Section 32(1) (b) EA - Statements made in the ordinary course of

business or duty, verbal or written, are admissible.
• Sim Tiew Bee v PP [1973] 2 MLJ 200
• Vaynar Suppiah v KMA Abdul Rahim [1974] 2 MLJ 183
• Syarikat Jengka Sdn Bhd v Abdul Rashid [1981] 1 MLJ 201
• Ng Yiu Kwok and Ors v PP [1989] 3 MLJ 166
• Wan Salimah Wan Jaafar v Mahmood Omar, Anim Abdul Aziz
(Intervener) [1998] 1 CLJ 480
• Tempil Perkakas Sdn Bhd v Foo Sex Hong [1996] 5 MLJ 542
• Allied Bank Bhd v Yau Jiok Hua [1998] 6 MLJ 1
• Tay Choo Foo@ Tay Chiew Foo v Tengku Mohd Saad & 3 Ors [2008]
6 AMR 121
• Tan Mooi v Tengku Mohd Saad [2011] 2 CLJ 145

(e) Section 32(1) (c) EA – Statements made against the pecuniary or

proprietary interest of the maker. It is admitted on the principle that a
man will not generally say something false which is contrary to his own
interest.
• Sussex Peerage [1844] 11 Ci & F 85
• Tucker v Oldbury [1912] 2 KB 317
• Ward v Pitt [1913] 2 KB 130
• PP v Forster [1988] 2 MLJ 594

(f) Section 32(1) (d) EA - Statement made giving opinion as to a public right
or custom on matters of public or general interest. The justification for
allowing such statements is because these matters are essentially well-
known facts which may be verified if necessary.
Evidence 402

(g) Section 32(1) (e) EA – Statements made relating to the existence of

relationship by blood, marriage or adoption. It would appear that the
statements must have been made by family members.

• Mohd Syedol Ariffin v Yeoh Ooi Gaik [1916] 1 MC 165

• Shanmugam v Pappah [1994] 1 MLJ 144

(h) Section 32(1) (f) EA – Statement made in a will or deed or in any family
pedigree or tombstone or family portrait relating to family affairs.
• Lee Kim Luang v Lee Shiah Yee [1988] 1 MLJ 193
• Re the Estate of Chan Chin Hee [1948] SCR 6

(i) Section 32(1) (g) EA– Statements contained in any document which
relates to any transaction as mentioned in section 13 (a) EA.

(j) Section 32(1) (h) EA – Statements made by a number of persons and

expressed feelings or impressions on their part relevant to the matter in
question.

• Du Bost v Beresford [1810] 2 Camp 511

• R v Vincent, Frost adn Edwards (1840) 9 C & P 275
• Teper v The Queen [1952] AC 480

(k) Section 32(1)(i) EA – Statements made during the course of an

investigation of an offence

(l) Section 32(1) (j) EA – Statement made by public officer in the discharge
of his duties.

• PP v Mohd Jamil bin Yahya & Anor [1993] 3 MLJ 702

• Michael Anayo Akabogu v PP [1995] 3 MLJ 42
Evidence 403

• PP v Lam Peng Hoa [1996] 5 MLJ 405

• PP v Tukiman Bin Demin [2008] 4 MLJ 79
• Muhd Yusuf Bukhari v PP [2012] 7 CLJ 580
• Ibrahim Mohamad & Anor v PP [2011] 4 CLJ 113
• Kobara Tabli Saidali v PP [2014] 2 CLJ 27
• PP v Yap Kim Wang [2016] 3 CLJ 433 (CA)
✓ Take note of the approach by the courts in the applicaton of section
32 (1) (i); 32 (1) (j) – disjunctively or conjunctively
✓ See also –

o section 158 EA which provides that when a statement relevant

under section 32 or section 33 EA has been proved, all matters
may be proved either, in order to contradict or to corroborate
it, or in order to impeach or confirm the credit of the person by
whom it was made, which might have been proved if that
person had been called as a witness and had denied upon
cross-examination the truth of the matter suggested.
o PP v Mohd Fairus [1997] 5 MLJ 57
o Ayoromi Helen v PP [2005] 1 CLJ 1
o PP v Richard Chia Kok Hiong [2007] 3 MLJ 129

9. Section 33

This provision deals with the admissibility of evidence given by a witness in

previous judicial proceedings if he is not available at a later trial on
substantially the same matter between the same parties or their
representatives.

• Chainchal Singh v King Emperor (1945) 72 LRIA 270

• Yew Poo v PP (1949) MLJ 131
• Lim Peng Koi v R [1952] MLJ 26
• Si Toh Fok Tiak Trading as Chop Wing Loong v Chop Swee Kee & Co
Evidence 404

(1954) 20 MLJ 49
• Mohd Kunju v PP [1966] 1 MLJ 271
• Sim Tiew Bee v PP [1973] 2 MLJ 200
• Dato Yap Peng v PP [1993] 1 MLJ 337
• Kee Saik Kooi v R [1995] MLJ 57
• Tan Sri Eric Chia Eng Hock v PP [2006] 3 MLJ 693
• PP v Sim Kay Chay [2007] 5 MLJ 309
• Pathmanabhan Nalliahnen v PP & other appeal [2016] 1 CLJ 377 (CA)

10. Section 34 EA

This provision allows for the admission of entries in books of accounts.

Although it permits the admissibility of entries, it specifically provides that
liability cannot be founded on the entries alone.

• Jaswant Singh v Sheo Narain (1894) ILR 16 All 157 (PC) – though the
entries alone cannot have found liability, if there was corroboration of
them, the defendant could be liable.
• Sagurmull v Manraj (1900) 4 CWN ccvii.
• Lawson v PP (1946) 12 MLJ 52
• Govindji Pepatlel v Nathoo Visadji [1962] AC 715
• PP v Rengasamy [1974] 1 MLJ 223
• Sim Siok Eng & Anor v Poh Hua Transport & Contractor Sdn Bhd [1980] 2
MLJ 72
• Syarikat Jengka Sdn Bhd v Abdul Rashid bin Harun [1981] 1 MLJ 207
• PP v Lee Soon Sian [1993] 2 MLJ 214
• TSIA Development Enterprises v Awang Dewa [1984] 1 MLJ 301
• KPM Khidmat Sdn Bhd v Tey Kim Swie [1994] 2 MLJ 627
• PP v Jawan Empaling & Anor [1996] 2 CLJ 328
• Dato’ Mohd Anuar bin Embong v BBMB [1997] 1 MLJ 642
• Jaafar Shaari & Siti Jama Hashim v Tan Lip Eng & Anor [1997] 4 CLJ 509
• Allied Bank Bhd v Yau Jiok Hua [1998] 6 MLJ 1
Evidence 405

• Syarikat Ying Mui Sdn Bhd v Muthusamy a/l Sellapan and other appeals
[1999] 6 MLJ 622
• PP v Dato’ Seri Anwar Ibrahim (No. 3) [1999] 2 MLJ 1
• Lee Kok Nam v PP [1999] 5 CLJ 283
• DP Vijandren v PP [1999] 3 AMR 2613
• Ganad Corp Bhd v Flobright Trading Sdn Bhd & Anor [2000] 6 MLJ 830
• Kay Hian Pte Ltd v Ma Boon Lan [2003] 4 MLJ 603
• Cheong Heng Loong Goldsmiths (KL) Sdn Bhd & Anor v Capital Insurance
Bhd [2004] 1 CLJ 353
• Eon Bank Bhd v Hotel Flamingo and another case [2005] 1 MLJ 712
• Ling Hock Ling v Tai Lian Development Co [2006] 6 MLJ 712
• Recaliva Design Steel (M) Sdn Bhd v Vista Access Sdn Bhd & Anor [2009]
8 AMR 61
• Zahari bin Bakar lwn Rus’sele bin Eizan & 2 Yg Ln [2009] 8 AMR 84
• Tahan Steel Corporation v Bank Islam Malaysia [2011] 1 CLJ 755
• Positive Well Marketing v OKA Concrete Industries [2011] 1 LNS 836

11. Section 35 EA

(a) The EA provides a special exception in respect of entries in public or other

official books, registers or records on the premise that those who make
such entries, either public officers or those required by law to do so will
perform their duties honestly, impartially and accurately.

(b) The provision is wide enough to cover the Investigation Diaries of police
officers since they are required by law to be kept and for an investigation
officer to make entries of their investigations in them. See section 119 (1)
CPC.

(c) Dato Mokhtar b Hashim v PP [1983] 2 MLJ 232 – the Federal Court held
that lock-up registers at a police station were admissible under the section
and that since such registers were linked to station diaries, the relevant
Evidence 406

entries in the station diaries were also admissible under the provision.

• Pathmanabhan Nalliahnen v PP & other appeal [2016] 1 CLJ 377

(CA)
12. Sections 36 to 38 EA

• Maps, charts, legislation and law books.

13. Section 73A EA

(a) This section provides for the admissibility of a statement made in a

document when the maker is called as a witness subject to satisfaction of
certain conditions as well as the admissibility of a statement where the
maker is not called as a witness.

The section would excuse the admissibility of documents that would in

normal circumstances fail the exclusionary rule against hearsay evidence.

o DNC Asiatic Holdings Sdn Bhd & Ors v Honda Giken Kogyo Kabushiki
Kaisha & Ors [2020] 1 CLJ 799.

“Under section 73A EA, a statement is admissible under three

circumstances,

(1) where the maker is called to give evidence – section 73 A (1)

(i) EA;

(2) where the maker is not available but the proviso to subsection
(1) of that section is satisfied; and

(3) where the maker is available but not called as a witness, under
circumstances provided by subsection (2) of that section…”
Evidence 407

per Abdul Hamid J in Arab-Malaysian Merchant Bank Berhad v

Chong On Foh Medical Hall & Liquor Dealers [1997] 4 MLJ 532.

(b) The proviso to subsection (1) being that the maker need not be called if –

(i) he is dead or,

(ii) unfit by reason of his bodily or mental condition to attend or;

(iii) he is beyond the seas and it is not reasonably practicable to secure

his attendance or;

(iv) if all reasonable efforts to find him have been made without
success.

(c) Section 73A (2) (b) EA dispenses with the production of the original
document and admits a copy thereof.
• Thrasyvoulous Loannou v Papa Christofiros Demetrious [1952] 1 All
ER 179
• Beng Heng Seong v PP [1972] 2 MLJ 190
• Re Koscot Interplanetary [1972] 3 All ER 829
• Mahmod b Kailan v Goh Seng Choon [1976] 2 MLJ 239
• AMMB Bhd v Chong On Foh Medical Hall [1977] 4 MLJ 532
• Nahar Singh v Pang Hon Chin [1986] 2 MLJ 141
• Jong Set Fah v Asia Life Assurance [1996] 2 CLJ 667
• Tempil Perkakas Sdn Bhd v Foo Sex Hong [1996] 5 MLJ 542
• Allied Bank Bhd v Yau Jiok Hua [1998] 6 MLJ 1
• Lim Guan Eng v PP [2000] 2 MLJ 577
• Doreen Johnklass @ Bebby v Guan @ Franklin Guang Ak Juma
[2007] 4 MLJ 745
• Bukit Lenang Development Sdn Bhd v Telekom Malaysia Berhad
[2011] 1 LNS 874
• Yew Cheng Lim v Regal Marketing & Trading [2011] 3 ILR 485
Evidence 408

• Tan Ah Tong v Parveen Kaur [2011] 5 MLJ 428

• Ho Hup Construction Company Sdn Bhd v Woo Thin Choy [2015] 9
CLJ 706 (CA)
• Sampo Materials (M) Sdn Bhd v Tenaga Nasional Bhd [2015] 9 CLJ
902 (CA)

14. Sections 90A, 90B, 90C EA

(a) This section provides for admissibility and the weight to be attached to a
document produced by a computer.

(b) Pursuant to section 90A (1) EA, the document produced by a computer or
a statement contained in such document, shall be admissible as evidence
of any fact stated in it provided that the document was produced by the
computer in the course of its ordinary use and it does not matter if the
person tendering it is the maker of such document or statement. See also
the deeming provision in section 90A (5) EA and as to the stage of
production of the document by the computer and its admissibility as
evidence in section 90A (6) EA.

(c) The exception to the above is that it does not apply to a document
produced by a computer, or a statement contained in such document
tendered by an accused in a criminal proceeding. This is provided in
section 90A (7) EA.

(d) In order to prove that the document was produced by a computer in the
course of its ordinary use the party tendering it shall also tender to the
court a certificate signed by a person who either before or after the
production of the document by the computer is responsible for the
management of the operation of that computer; or for the conduct of the
activities for which that computer was used.
Evidence 409

(e) On the contents of the certificate, see section 90A (3) EA.

(f) Pursuant to section 90A (5) EA, upon production of the certificate, it shall
be presumed that the computer referred to in the certificate was in good
working order and was operating properly in all respects throughout the
material part of the period during which the document was produced.

(g) As to how the court should estimate the weight or probative value of such
evidence tendered in court section 90B EA makes provision for the factors
it can rely on.

(h) Thus, section 90A read together with section 90B EA caters for the
reception of hearsay evidence contained in a document produced by a
computer in a court of law. This is fortified by the provision contained in
section 90C EA.
• R v Ewing [1983] QBD 1039
• Aw Kew Lim v PP [1987] 2 MLJ 601
• R v Spiby [1990] 91 Cr App R 186
• PP v Ang Soon Huat [1991] 1 MLJ 1
• R v Neville [ ] CLR 288
• R v Shepard [1993] 2 WLR 103
• Standard Chartered Bank v Mukah Singh [1996] 3 MLJ 240
• Gnanasegaran v PP [1997] 3 MLJ 1
• Schmidt Scientific Sdn Bhd v Ong Han Suan [1997] 5 MLJ 632
• PP v Ong Cheng Heong [1998] 6 MLJ 678
• PP v Datuk Haji Sahar Arpan [1999] 3 CLJ 427
• Kay Hian Pte Ltd v Ma Boon Lan [2003] 4 MLJ 603
• Kuala Lumpur Securities v Yap Say Woon [2011] 1 LNS 133
• Lim Pang Cheong v Tan Sri Dato Dr Rozali Ismail [2011] 7 CLJ 645
• Hanafi Mat Hassan v PP [2006] 3 CLJ 269, [2006] 4 MLJ 134
• Ahmad Najib Aris v PP [2007] 2 CLJ 505
• Tektrix Sdn Bhd & Ors v Malayan Banking Bhd (Formerly known as
Evidence 410

Mayban Finance Bhd) [2008] 3 MLJ 838

• Citibank Berhad lwn Titik Juta Sdn Bhd [2009] 7 AMR 369
• Bespile Sdn Bhd (in liquidation) v Asianshine Sdn Bhd & Ors [2010] 4
MLJ 824
• Lau Chee Kai v PP [2011] 9 CLJ 619
• Am Finance Bhd v Ultimate Eight Sdn Bhd & Ors [2014] 1 MLJ 210
• Goh Kein Hooi v OCBC Bank (M) Bhd and anor appeal [2014] 1 MLJ
516Tan Chow Cheang v Public Prosecutor [2018] 5 MLJ 411
• Avnet Azure Sdn Bhd v EACT Technologies Sdn Bhd; Sapura
Research Sdn Bhd (Third Party) [2011] (Unreported) explains that
an email is admissible under sections 90A, 90B, 90C EA
• Mok Yii Chek v Sovo Sdn Bhd & Ors [2015] MLRHU 196, dealt with
print-out of emails and Whatsapp message produced by a computer
and held that the requirements of Section 90A EA must be complied
with for the admissibility of such documents.

(i) See also -

• Electronic Commerce Act 2006 (Act 658) provides for legal

recognition of electronic messages in commercial transactions.
o Yam King Seng & Anor v Yee Weng Kai (2014) 6 CLJ 285.

• Electronic Government Activities Act 2007 (Act 680) that provides for
legal recognition of electronic messages in dealings between the
Government and the public.

• the amendment to the definition of “computer” in section 3 vide

Evidence (Amendment) (No.2) Act 2012

o Pathmanabhan a/l Nallianmen 8 Ors v PP [2013] 5 MLJ 867

Evidence 411

• the following contemporary articles:

o by Gita Radhakrishna, Distinguishing between Admissibility and
Authenticity of Electronic Evidence [2014] 6 MLJ xxxv.

o by Gita Radhakrishna, Myint Zan, Dennis Khong Wye Keen,

‘Computer Evidence in Malaysia: Where are we? [2013] 3 MLJ
xxxiii

o by Gita Radhakrishna, ‘E-mail Evidence and the Hearsay Rule –

Commentary on a recent Malaysian case’ Digital Evidence and
Electronic Signature Law Review 10 [2013] 107.

D. DOCUMENTARY EVIDENCE
(See Chapter V EA)

1. Meaning

• Section 3 EA

Document is defined as any matter expressed, described, or howsoever

represented, upon any substance, material thing or article and
encompasses inter alia, any matter embodied in any disc, tape, film,
soundtrack or other device.
• R v Masqud Ali [1966] 1 QB 688
• Ghazali bin Salleh v PP [1993] 3 CLJ 638
• PP v Jawan Empaling [1996] 2 CLJ 328
• Mohd Ali Jaafar v PP [1998] 4 MLJ 210
• PP v Balveer Singh a/l Mahindar Singh [2009] 2 AMR 538
• Dr. John Reginald Benedict & Ors v Dr. Ravindran Menon & 2 Ors
[2012] 6 CLJ 592
• Ho Hup Construciton Company Sdn Bhd v Woo Thin Choy [2015] 9
Evidence 412

CLJ 706 (CA)

• Article : Paul A [1992] 2 CLJ xxi

2. Aspects

(a) Public/Private documents and the right to inspect

(i) What are public documents?

Section 74 EA provides that there are two categories of public
documents –

• acts or records of acts of certain authorities and officers and;

• public records kept in Malaysia of private documents

o Dr Munawar Ahmad Anees v Ketua Pengarah Penjara,

Malaysia [1999] 2 MLJ 289

o Gopinathan a/l Subramaniam v Timbalan Menteri Dalam

Negeri & Ors [2000] 1 MLJ 65

o Osaka Resources Sdn Bhd v Foo Holdings Sdn Bhd and

anor appeal [2014] 1 MLJ 461.

o Pathmanabhan Nalliahnen v PP & other appeal [2016] 1

CLJ 377 (CA)

(ii) What are private documents?

Section 75 EA provides that all documents other than those

mentioned in section 74 EA.
Evidence 413

(b) Right to inspect a public document

• Section 76 EA provides that a person who has a right to inspect is

entitled to a certified copy of a public document from a public officer
who has custody of that public document on payment of a legal fee
together with the related conditions as to certification

(c) Proof of contents of documents

(i) Documentary evidence is evidence by document which consists of

marks, writing or printed matter on any permanent substance made
at or before the trial.

(ii) The general rule is that the best evidence must be produced if it can
possibly be obtained; if not, then the next best evidence that can be
obtained will be admitted.

(iii) As a general rule, where a written document is to be used as proof,

the original document must be produced.

(iv) The non-production of the best evidence creates a presumption that

its production would have revealed some falsehood at present
concealed.

(v) Therefore, before secondary evidence is offered, a foundation for its

production must be laid by proving that evidence at first hand
cannot be obtained.

(vi) The best evidence of the contents of a written instrument is the

written instrument itself; secondary evidence is a true copy or oral
evidence of the contents of the original.

(vii) The absence of the original must be accounted for by proving that it
Evidence 414

is lost or destroyed or that it is in the possession of some other

party.

(viii) One must first prove the original is lost or destroyed before one can
produce the copy received by the witness. In this way, the
destruction of the document is proved before secondary evidence of
its content is given.

(ix) Sections 61 to 66 EA

• Defines primary and secondary evidence and circumstances in

which section 90

• they may be admitted in proof. Section 66 EA provides for the

rules as to notice to produce with regard to secondary evidence
of the contents of the documents referred to in section
65(1)(a) EA.

• Where a written instrument is in the hands of the opposite

party it is necessary to serve on him or his advocate a notice to
produce it; and if he does not produce it at the trial then upon
proving service of the notice, secondary evidence of its content
may be given.

• Where service of the notice is not contested, a simple

procedure is for the witness producing the document to give
evidence up to the stage when the document is to be
produced.

• The party seeking to produce the original document then tells

the court that notice for its production has been served and
calls for its production.
Evidence 415

• If it is produced it is handed to the witness to tender as an

exhibit.

• If it is not produced, he then produces a copy or gives oral

evidence of its content.

• If the party having possession of the document does not

produce the original the court can suggest the production of
the original is desirable but has no power to order him to
produce it and so provide against himself.

• Notice to produce must be served within a reasonable time

before the trial.

• Evidence with regard to service of the notice to produce must

be given in court by the person who had served the said
notice. In criminal cases, the Investigation Officer (IO) of the
case is in a position to tender such evidence.

• What is a reasonable time depending upon the circumstances

of the case.

• It is a general rule that a notice to produce is not required

when the document to be proved is itself a notice. (See proviso
(a) to section 66 EA). Channel J in the case of R v Turner
[1910] 1 K.B. 346 (confirmed in the case of Sharkey v Cooke
(1960) 24 J.C.L. 135) said that it is always understood that the
reason for that rule is that if it were necessary to give notice to
produce a notice, notice to produce the notice to produce
would have to be given and so on ad infinitum.

• See also the Electronic Commerce Act 2006 (Act 658) on the
recognition of electronic messages as ‘original’ documents if—
Evidence 416

o there exists a reliable assurance as to the integrity of the

information contained in the electronic message from the
time it is first generated in its final form; and

o the electronic message is accessible and intelligible so as

to be usable for subsequent reference.

(x) Section 77 EA provides for the proof of the contents of public

documents by the production of certified copies in the manner set
out in section 76 EA.
• Re Neo Guan Chye, deceased (1935) 4 MLJ 271
• Ong Kim Piaw v PP (1949) 15 MLJ 137
• State of Madras v G. Krishnan AIR 1961 Mad 92
• R v Barton [1973] 1 WLR 115
• Khoo Siew Bee v Ketua Polis Kuala Lumpur [1979] 2 MLJ 49
• Husdi v PP [1979] 2 MLJ 304
• Toh Kong Joo v Penguatkuasa Perubatan Hospital [1990] 2 MLJ
35
• Anthony Gomez v KPD Kuantan [1977] 2 MLJ 24
• Haji Abdul Ghani v PP [1980] 2 MLJ 196
• Kulwant v PP [1986] 2 MLJ 10
• Huzir bin Hassan v PP [1994] 2 CLJ 771
• Dr Munawar Ahmad Anees v Ketua Pengarah Penjara, Malaysia
[1999] 2 MLJ 289
• PP v Lim Sooi Booi [2003] 2 MLJ 433
• PP v Letchumanan a/l Krishnan [2008] 3 MLJ 290
• Osaka Resources Sdn Bhd v Foo Holdings Sdn Bhd and anor
appeal [2014] 1 MLJ 461

(xi) Section 78 EA provides for the method of proof of certain official

documents
Evidence 417

(xii) Section 78A EA provides for proof of public documents produced by

computers.

(xiii) Sections 79 to 90 EA provides for presumption as to genuineness

etc. of the various types of documents referred to in the provisions.

• Re Tan Ah Chuan & Anor (1954) 20 MLJ 135

• Mohd Hanifah v PP (1956) 22 MLJ 83
• Chiew Vui Kiet & Anor v Chong Fook Tien & Ors [1971] 2 MLJ
158
• Arunasalam v Letchumi (1956) 22 MLJ 89
• PP v Neoh Boon Cheong (1960) 26 MLJ 31
• Comm of Malacca v Sinniah [1974] 1 MLJ 77
• PP v Bujang bin Ali & Ors [1978] 1 MLJ 224
• Au Kew Lin & Ors v PP [1987] 2 MLJ 601

(d) Parol Evidence Rule

(i) Chapter VI EA (sections 91 to 100 EA) provides for exclusion of oral

by documentary evidence. It concerns the use of other evidence to
prove –

(A) the terms of a transaction, or

(B) other terms not included in the document, or

(C) the writer’s intended meaning.

• As to (A), generally use of other evidence to prove the contents

of a document is prevented. As far as possible the use of
primary evidence, which is the best evidence would prevail.

• (B) is the ‘parol evidence rule’ which provides that extrinsic

Evidence 418

evidence is inadmissible for the purpose of adding to, varying,

contradicting or substracting from the terms of the document,
hence the writing is conclusive. (See Chin Tet Yung, Evidence,
Butterworths 1988 at page 224)

• (C) deals with the admissibility of facts in support of

interpretation or construction of a document.

(ii) Section 91 EA provides the general rule that the agreed terms of a
contract, grant or any other disposition of property reduced to the
form of a document can be proved only by production of the
document itself. It also stipulates that where ‘any matter is required
by law to be reduced to the form of a document’, the document
itself must be proved.

• Wong Juat Eng v Then Thaw Eu [1965] 2 MLJ 213

• Ah Mee v PP [1967] 1 MLJ 220
• Herchun Singh & Ors v PP [1969] 2 MLJ 209
• PP v Datuk Harun Idris & Ors [1977] 1 MLJ 180
• Eng Mee Yong & Ors v V Letchumanan [1979] 2 MLJ 212
• Tan Chong & Sons Motor Co Ltd v Alan McKnight [1983] 1 MLJ
220
• Kheng Huat Film Co v Makhanlall [1984] 1 MLJ 243
• Ganam v Somoo [1984] 2 MLJ 290
• Inspector General of Police v Alan Noor bin Kamat [1988] 1
MLJ 260
• PP v Lee Eng Kooi [1993] 2 CLJ 534
• PP v Robert Boon Tech Chuah [1995] 1 CLJ 102
• Tng Tien Chai v PP [1995] 3 CLJ 292
• PP v Waly Baing [1995] 3 CLJ 425
• Tng Tien Chai v PP [1995] 3 CLJ 292
• Datuk Tan Leng Teck v Sarjana Sdn Bhd (as yet unreported)
Evidence 419

• Bank Kerjasama Rakyat Malaysia Bhd v Tetuan Haranay, Roni

& Anikah & Ors [1995] 5 MLJ 199
• Muhammad Hassan v PP [1998] 2 CLJ 170
• Dr ST Singam v Lee Siew Leong [2007] 1 MLJ 1
• Sama World Asia Sdn Bhd & Anor v RHB Bank Berhad [2009] 4
AMR 554
• Lim Hai Hing & Anor (as the representative of the estate of Lim
Sitt Min @ Lim Chin Seng, deceased) v Lim Tuck Thien [2014]
1 MLJ 246
• P’ng Hun Sun v Dato’ Yip Yee Foo [2013] 6 MLJ 523
• Prestige Global Resources Sdn Bhd v Gabungan Hartamas Sdn
Bhd [2015] 2 CLJ 116 (HC)

(iii) Section 92EA does not apply to all documents. It applies to bilateral
instruments and dispositive documents only, such as contracts,
grants or other dispositions or property which the law requires to be
reduced to writing, and not to all matters which the law requires to
be reduced into a document.

• Grand Tractor Parts Sdn Bhd v Grand Tractor & Auto Parts Sdn
Bhd & Ors [2019] MLJU 1460

Section 92 EA provides that once a document within section 91 has

been proved, no oral statement or agreement may be adduced to
contradict, vary, add to or subtract from its terms except where a
case falls within one of the provisos.

• Norsitah bt Ottoh & Ors v Rosinah bt Nasry & Ors [2019] 2 MLJ
662

(iv) Section 92 (a) EA concerns the vitiating factors like fraud,

Evidence 420

intimidation, illegality, failure of consideration, mistake,

misrepresentation, lack of capacity and want of due execution.

• Tyagaraja Mudaliar v Vedathanni (1936) 5 MLJ 79 (PC)

• Tang Siew Hee v Hii Sii Ung [1964] MLJ 385
• Seow Kim Koi v Wei Yin Chen [1968] 2 MLJ 193
• Tindok Besar Estate Sdn Bhd v Tinjar Co [1979] 2 MLJ 229
• Ganam v Somoo [1984] 2 MLJ 290
• Lim Kar Bee v Dufortis Properties Sdn Bhd [1992] 3 CLJ 1667
• Sim Thong Realty Sdn Bhd v Teh Kim Dar @ Tee Kim [2003] 3
MLJ 460

(v) Section 92 (b) EA allows other evidence to be admitted when it is

alleged that the written agreement is not the entire agreement.

• Chellathamby v CA Velupillay (1933) 2 MLJ 222

• Sigma Cable Co Ltd v Nam Huat Electric & Sanitary Co & Ors
[1972] 1 MLJ 7
• Tan Swee Hoe Co Ltd v Ali Hussain Bros [1980] 2 MLJ 16
• Tan Chong & Sons v Alan McKnight [1983] 1 MLJ 220
• Eushun Properties Sdn Bhd v MBF Finance [1992] 2 MLJ 137
• Malek & Joseph Au (sued as a firm) v Bank Bumiputra (M) Bhd
(1998) 4 MLJ 608
• Kluang Wood Products Sdn Bhd & Anor v Hong Leong Finance
Bhd & Anor [1999] 1 MLJ 193
• Quality Concrete Holdings Bhd v Classic Gypsum Manufacturing
Sdn Bhd & Ors [2012] 2 MLJ 521
• Prestige Global Resources Sdn Bhd v Gabungan Hartamas Sdn
Bhd [2015] 2 CLJ 116 (HC)

(vi) Section 92 (c) and (d) EA allow for other evidence in the case of
collateral contracts or waivers of the original agreements.
Evidence 421

• Gek Lau Choon Theatrical Co v Hu Kiang Yan (1937) 6 MLJ 25

• Wong Juat Eng v Then Thaw Eu (1965) 2 MLJ 213
• Voo Min Eu & Ors v Leong Chung Fatt [1982] 2 MLJ 241
• Ganesan v Baskaran [1986] 2 MLJ 26
• Macronet Sdn Bhd v RHB Bank Bhd [2002] 3 MLJ 11
• Inch Kenneth Kajang Rubber Public Limited Company v Tor
Peng Sie [2014] 2 CLJ 215 (COA)

(vii) Section 92 (e) EA provides that facts may be proved to establish a

trade usage or custom which are taken for granted and not
mentioned in the contract as far as such usage or custom would not
be repugnant to or inconsistent with the express terms of the
contract.
• Smith v Wilson (1832) 3 B & Ad 728
• Cheng Keng Hong v Govt of the Federation of Malaya [1966] 2
MLJ 33

(viii) Section 92 (f) EA provides that facts may be proved which shows in
what manner the language of a document is related to existing facts.

• Tan Suan Sim v Chang Fook Shen [1980] 2 MLJ 66

• Citibank NA v Ooi Boon Leong [1981] 1 MLJ 282
• Keng Huat Film v Makhanlal Pte Ltd [1984] 1 MLJ 243
• Faber Merlin v Lye Thai Sang [1985] 2 MLJ 381
• Haji Aminah bte Bakri v Manisah bte Haji Bakri [1989] 1 MLJ
350
• Tan Ah Chin & Sons v Ooi Bee Tat [1993] 3 MLJ 633
• See also sections 93 to 100 EA
o Ooi Phee Cheng v Kok Yoon San (1950) 16 MLJ 187
o Siu Han Kun v Lew Tan (1956) 22 MLJ 15
o Poh Sin Mining Co v Welfare Insurance Co Ltd [1971] 1
MLJ 65
Evidence 422

o Tan Suan Sim v Chang Fook Shen [1980] 2 MLJ 66

o Maha Syndicate v Cooperative Exportvereniging ‘Vecofa’
UA & Anor [1970] 2 MLJ 221
E. WITNESSES
(Chapter IX EA)

Section 134 EA clearly states that no number of witnesses is required to prove a fact
and it encapsulates the principle that evidence is to be weighed and not counted.

• Hairul Fazli bin Mokhtar v Public Prosecutor [2019] MLJU 1179 (CA)

1. Competency and compellability

(a) Sections 118 EA

• provides the general rule that all persons who are capable of
understanding questions and giving rational answers are competent
to testify.
• Competency under s 118 is not tested on the basis of age of a
person but only on the basis of his capacity to understand.
o Tajudin bin Salleh v Public Prosecutor [2008] 1 MLJ 397

(b) Section 119 EA

• provides that a dumb witness can give evidence in any other manner
in which he can make it intelligible. Such evidence must be made in
open court. If so given it shall be deemed to be oral evidence.

(c) Section 120 EA

• Subsection 120 (1) EA provides that parties and their spouses are
competent witnesses in civil proceedings.

• Subsection 120 (2) EA provides that the spouse of an accused

Evidence 423

person in a criminal proceeding shall be a competent witness.

• Subsection 120 (3) EA an accused shall be a competent witness and

may give evidence as any other witness. The proviso to subsection
(3) states that any cross-examination relating to the credit of the
accused may be limited by the court to such extent as it thinks
proper, although the proposed cross-examination might be
permissible in the case of any other witness.

o Ghouse bin Haji Kader Mustan v R [1946] MLJ 36

o Gimbu bin Sangkaling v R [1958] SCR 114
o Chai Kor Pee v PP [1965] 2 MLJ 208
o Kee Lik Tian v PP [1984] 1 MLJ 306
o PP v Abdul Majid [1994] 3 MLJ 457
o Sidek bin Ludan v PP [1995] 1 AMR 722
o Tan Sri Eric Chia Eng Hock v PP [2006] 3 MLJ 693
o Tajudin Bin Salleh v PP [2008] 1 MLJ 397
o Penang Amusement Company Sdn Bhd v Abdul Gaffor Kalandar
Mastan [2011] 1 LNS 248
2. Privilege

(a) Conduct of Judges, Sessions Court Judges and Majistrates in Court –

section 121 EA

• Such persons shall not be compelled to answer any questions,

except in certain circumstances.
o Pavone v PP [1986] 1 MLJ 72

(b) Marital communications – section 122 EA

• No person who is or has been married shall be compelled to disclose

any communication made to him during marriage by any person to
Evidence 424

whom he is or has been married unless the person who made it

consents.
o Re Loh Kah Kheng (No. 2) [1990] 2 MLJ
o Palldas a/l Arumugam v PP [1988] 1 CLJ 661
o PP v Abdul Majid [1994] 3 MLJ 457
o Raju a/l Dakashina Murtay lwn Pendakwa Raya [2018] 4 MLJ
413

(c) Matters relating to affairs of State – sections 123 and 162 EA

• Section 123 EA provides that no one shall be permitted to produce

any unpublished official records relating to affairs of state or to give
evidence derived there from.
o Governor General v H Peer Mohd Khuda Bux AIR 1950 Pun 228
o Gurbachan Singh v PP [1966] 2 MLJ 125
o State of Uttar Pradesh v Raj Narain AIR 1975 SC 865
o BA Rao v Sapuran Kaur [1978] 2 MLJ 146
o Wix Corp SEA Sdn Bhd v Minister of Labour & Manpower
[1980] 1 MLJ 224
o Takong Tabari v Govt of Sarawak [1994] 3 AMR 2768

• How do you reconcile sections 123 and 162 EA? Is section 162 EA
subject to section 123 EA? See section 162 (2) EA.

(d) Communication made in official confidence – section 124 EA

• Public officer shall not be compelled to disclose communication

made to him in official confidence if disclosure is detrimental to
public interest.
o Suruhanjaya Sekuriti v Datuk Ishak Ismail [2016] 3 CLJ 19 (FC)
Evidence 425

(e) Information about crimes – section 125 EA

• Judicial, police or revenue officer shall not be compelled to reveal

source of information received by him as to commission of an
offence.

(f) Professional Communication – sections 126, 127, 128 and 129 EA

• These provisions deal with legal professional privilege.

o Section 126 EA - The privilege belongs to the client and not to

the solicitor.
▪ Tan Chong Kean v Yeoh Tai Chuan & Anor [2018] 2 MLJ
669
▪ Gideon Tan v Tey Por Yee (2017) 1 MLJ 352

o Section 127 EA extends the said privilege under section 126 to

interpreters and clerks or servants of advocates.

o Section 128 EA provides that the said privilege is not waived by

volunteering evidence.

o Section 129 EA provides that no one shall be compelled to

disclose to the court any confidential communication between
him and his legal professional adviser unless he offers himself
as a witness.

▪ Yeo Ah Tee v Lee Chuan Meow [1962] MLJ 413

▪ PP v Haji Kassim [1971] 2 MLJ 115
▪ Dato’ Au Ba Chi v Koh Keng Kheng [1989] 3 MLJ 445
▪ Chua Su Yin v Ng Sung Yee [1991] 2 MLJ 348
▪ AG of Hong Kong v Lorrain Esme Osman [1993] 2 MLJ
Evidence 426

347
▪ Tan Thian Wah v Tan Tian Tiok & Ors [1998] 5 MLJ 801
▪ PP v Dato’ Seri Anwar Ibrahim (No. 3) [1999] 2 MLJ 1
▪ See Teow Chuan & Anor v Dato’ Anthony See Teow Guan
[2006] 3 MLJ 97
▪ Dr Pritam Singh v Yap Hong Choon [2007] 1 MLJ 31
▪ Dato’ Anthony See Teow Guan v See Teow Chuan & Anor
[2009] 3 MLJ 14
▪ Clarence Edwin v Harta Kumpulan Sdn Bhd [2011] 1 LNS
548
▪ Prestige Global Resources Sdn Bhd v Gabungan Hartamas
Sdn Bhd [2015] 2 CLJ 116 (HC)
▪ Murugan Arumugam v PP [2017] 3 CLJ 377 (FC)
▪ Wang Han Lim & Ors v HSBC Bank Malaysia Bhd [2017]
10 CLJ 111 (CA)

(g) Production of title deeds of a non-party and incriminating document;

documents which another person having possession could refuse to
produce – sections 130 and 131 EA

• Section 130 EA provides that a witness who is not a party to a suit

shall not be compelled to produce his title deeds or any document
the production of which might tend to incriminate him unless he has
agreed to do so in writing.

• Section 131 EA deals with the right to refuse the production of

documents which any other person having possession of it would be
entitled to refuse to produce.

o Maju Holdings Sdn Bhd v Kamala Devi a/p Ramadass & Anor
and another Appeal [2003] 2 MLJ 36
Evidence 427

(h) Privilege against self-incrimination – Section 132 EA

• See section 147 EA

o Chye Ah San v R (1954) 20 MLJ 217
o Television Broadcasts Ltd v Mandarin Video Hldgs Sdn Bhd
[1983] 2 MLJ 346
o PMK Rajah v Worldwide Commodities Sdn Bhd [1985] 1 MLJ 86
o Riedel de Haen AG v Liew Keng Pang [1989] 2 MLJ 400
o PP v Tay Bee Seng [1993] 1 CLJ 526
o AG of HK v Zauyah Wan Chik [1995] 3 CLJ 35
o Meridian Asset Management Sdn Bhd v Ong Kheng Hoe & Ors
[2008] 3 MLJ 184
o Pendakwa Raya v Prabah a/l Sinnathamby [2008] 7 MLJ 255
o Prabah a/l Sinnathamby v PP [2010] 5 MLJ 252
o Rotta Research Laboratorium SPA v Ho Tack Sien; Chai Yuet
Ying (Third Party) (No. 2) [2011] 1 LNS 597
o PP v Datuk Hj Wasli Md Said & Other Appeals [2014] 9 CLJ 748
(FC)

(i) Police Investigation

• Noor Haiyati bte Saad v Said bin Ismail [1991] 3 MLJ 332

3. Examination of witnesses
(Chapter X EA - sections 135-166 EA)

(a) These provisions deal with examination of witnesses and the mode of trial
• Dato’ Seri Anwar bin Ibrahim & Anor v Public Prosecutor [2000] 3
MLJ 638

Criminal trials in Malaysia is an adversarial process between the

prosecution and the defence and not an investigation by the judge. The
Evidence 428

examination in chief and cross-examination is the primary responsibility of

the deputy public prosecutor and the defence counsel. A judge must be
cautious and must always maintain impartiality as an independent and
impartial referee.

• Elonita Abayon Chua (W/Filipina) lwn Pendakwa Raya [2018] 5 MLJ

482

(b) Impeachment proceeding – sections 145 and 155 EA. Credit and
credibility of a witness – sections 146, 146A, 148, 149 and 150 EA.

• Att-Gen v Hitchcock (1847) 154 ER 38

• R v Chhoa Mu Sai (1937) 6 MLJ 236
• PP v Lee Pak (1937) 6 MLJ 265
• Ong Joo Chin v R [1946] MLJ 1
• Muthusamy v PP [1948] MLJ 57
• Jones v R [1948] 14 MLJ 182
• Jusoh bin Awang v PP [1950] MLJ 69
• Koay Chooi v Regina [1955] 21 MLJ 209
• Ip Yin Wah v PP [1958] MLJ 34
• Mathew Lim v Game Warden, Pahang [1960] 26 MLJ 89
• Ahmad Din & Ors v PP [1962] MLJ 94
• Lim Baba v PP [1962] MLJ 201
• PP v Lo Ah Teng [1965] 31 MLJ 241
• Toohey v Metro Police Comm [1965] AC 595
• Muniandy & Ors v PP [1966] 1 MLJ 257
• Tan Chow Soo v Ratna Ammal [1969] 2 MLJ 49
• Paramasivam v PP [1970] 2 MLJ 106
• Yusoff bin Sidin v PP [1971] 1 MLJ 203
• R v Sweet-Escott (1971) 55 Cr App R 316
• PP v Dato’ Haji Harun [1977] 1 MLJ 180
Evidence 429

• Husdi v PP [1980] 2 MLJ 80

• Krishnan v PP [1981] 2 MLJ 121
• Dato’ Mokhtar Hashim v PP [1983] 2 MLJ 232
• Pavone v PP [1986] 1 MLJ 72
• Nahar Singh v Pang Hon Chin [1986] 2 MLJ 141
• PP v Shamsul Kamar b. Mohd Zain [1988] 2 MLJ 252
• PP v Teng Chen Choi [1989] 1 CLJ 56
• Abdul Khoder Shafie v Low Yam Chai [1989] 2 MLJ 483
• PP v Wong Yee Sen [1990] 1 MLJ 187
• Pendakwa Raya v Kang Ho Soh [1992] 1 MLJ 360
• PP v Chia Ah Yu [1993] 4 CLJ 78
• Dalip Bhagwan Singh v PP [1998] 1 MLJ 1
• Balachandran v PP [2005] 1 CLJ 85
• PP v Mohd Bandar Shah b Nordin & Anor [2005] 2 MLJ 349
• Asean Securities Paper Mills Sdn Bhd v CGU Insurance [2007] 2 MLJ
301
• Siaw Kim Seong v Siew Swee Yin (P) & Anor [2008] 5 AMR 97
• PP v Balveer Singh a/l Mahindar Singh [2009] 2 AMR 538
• Pathmanabhan Nalliannen v PP & Other Appeal [2017] 4 CLJ 137
(FC)
(c) Effect of question put to witness during cross-examination.
• Mahavir Singh v State of Haryana [2015] 3 CLJ 1009 (SC India)

(d) Effect of failure to cross-examine a witness

• Vellu Pillai Padakalingam v Paramanandam Yesudasan 1954 AIR TRA
– Co 152
• Chua Beow Huat v PP [1970] 2 MLJ 29
• Wong Swee Chin v PP [1981] 1 MLJ 212
• PP v Ee Boon Keat [2006] 2 MLJ 633

4. Refreshing memory
Evidence 430

Sections 159-161 EA

• These provisions cater for the use of documents for the purpose of
refreshing memory.
o Daniel v PP [1956] MLJ 186R v Richardson [1971] 2 AER 773
o R v Cheng (1976) 63 Cr App R 20
o Lim Hong Yap v PP [1978] 1 MLJ 154
o PP v Paneeselvan [1991] 1 MLJ 109
o Moomin bin Seman v PP [1993] 3 MLJ 282
o PP v Dato’ Seri Anwar Ibrahim (No. 3) [1999] 2 MLJ 1
o Taff Hotels Sdn Bhd v Permodalan Nasional Bhd [2000] 3 CLJ 841
o Kesavan a/l Petchayo @ Balakrishnan v PP [2003] 2 MLJ 209
o Chau Kam Hoon v PP [2003] 4 MLJ 686

5. Hostile witness

Section 154 EA

• This provision allows the court discretion to permit the party calling a
witness to cross-examine him in certain circumstances.
o P.A. Anselam v PP [1941] MLJ 129
o Re Wee Swee Hoon deceased [1953] MLJ 123
o PP v Loh Keng Koh [1967] 1 MLJ 97
o Muniandy and another v PP [1973] 1 MLJ 179
o Lourdenadin v M. Ratnavele [1986] 1 MLJ 228
o PP v Tan Chye Joo and another [1989] 2 MLJ 253
o Dato’ Hj Azman Mahalan v PP [2007] 3 CLJ 495
Evidence 431

F. BURDEN AND STANDARD OF PROOF

(Chapter VII EA)

1. Meaning

• Sections 3, 101, 102 EA

Section 3 deals with the definition of the word ‘proved’, ‘disproved’ and
‘not proved’. Section 101 (2) EA states that when a person is bound to
prove the existence of any fact, it is said that the burden of proof lies on
that person.

o PP v Yuvaraj [1969] 2 MLJ 89

o R v Jayasena [1970] 1 All ER 219
o Lt Kol Yusof Bin Abdul Rahman v Kol Anuar Bin Md Amin & Anor
[1997] 1 MLJ 562

2. Burden and standard of proof in criminal cases

(a) Pursuant to section 101 (1) EA the rule is that whoever wishes to obtain a
judgment based on certain facts, facts in issue, must prove them.
Illustration (a) to that section illustrates that the prosecution has the
burden to prove the commission of the crime.

(b) In a criminal case the prosecution must convince the court that the
accused is guilty of the offence he is charged with. At the end of the
prosecution case, if the defence is successful in a submission of no case
to answer, the accused will not be ordered by the court to enter his
defence at all and he will be acquitted. The falsity of the defence raised
by the accused does not relieve the prosecution from its case beyond
Evidence 432

reasonable doubt – PP v Saimin [1971] 2 MLJ 16.

(c) The burden is on an accused in a situation where specific criminal

provisions presume the existence of a fact, which is an ingredient of an
offence, ‘unless the contrary is proved’. In such a case the accused bears
the legal burden to ‘disprove’ the presumed fact, on a balance of
probabilities, failing which, the consequence is a conviction - PP v Yuvaraj
[1969] 2 MLJ 89

(d) Proof beyond reasonable doubt does not mean proof beyond the shadow
of doubt. If the evidence is so strong against a man as to leave only a
remote possibility in his favour which can be dismissed with the sentence
‘of course it is possible but not in the least probable’, the case is proved
beyond reasonable doubt, but nothing short of that will suffice’.
• Miller v Minister of Pensions [1947] 2 ALL ER 372

(e) Sections 101 and 102 EA

• Woolmington v DPP [1935] AC 462
• R v Chandrasekara [1942] NLR 44
• R v Carr-Briant [1943] 1 KB 607
• Miller v Minister of Pensions [1947] 2 All ER 372
• Mat v PP [1963] MLJ 263
• Liew Kaling & another v PP [1960] MLJ 306
• PP v Foo Jua Eng [1966] 1 MLJ 197
• Liew Siew & Anor v PP [1969] 2 MLJ 232
• R v Jayasena [1970] 1 All ER 219
• PP v Saimin [1971] 2 MLJ 16
• Nagappan v PP [1988] 2 MLJ 53
• Mohd Radhi Yaakob v PP [1991] 3 MLJ 169
• Junaidi bin Abdullah v PP [1993] 3 MLJ 217
• Aziz bin Muhamad Din v PP [1996] 5 MLJ 473
Evidence 433

• PP v Samer Klom Klom [1996] 2 CLJ 359

• Dalip Bhagwan Singh v PP [1997] 4 CLJ 645
• Kam Pau Siong & Anor v Wilayah Fabrication Sdn Bhd & Ors [2004]
3 MLJ 599
• Francis Antonysamy v PP [2005] 2 CLJ 481
• Hamit Matusin & Ors v Penguasa Tanah dan Survei [2006] 3 MLJ
287
• PP v Hafiszamri bin Ahmad & Ors [2007] 1 MLJ 497
• Article – Peiris [1980] 22 Mal LR 66

3. Burden and standard of proof in civil cases

(a) With regard to civil standard, ‘if the evidence is such that the tribunal can
say “We think it more probable than not” the burden is discharged, but if
the probabilities are equal, it is not.”
• Denning J in Miller v Minister of Pensions [1947] 2 ALL ER 372

(b) Sections 101 and 102 EA

• PP v Yuvaraj [1969] 2 MLJ 89 (explains the difference between the
standard of proof applicable in criminal and civil cases)
• Juakhir bin Sadikon v Perbadanan Kemajuan Ekonomi Negeri Johor
[1996] 3 AMR 2984
• Kulai Edible Oils Refinery v Lim Tian Huat [2011] 8 MLJ 331
• Syarikat Timbermine Sdn Bhd v Kerajaan Negeri Kelantan Darul
Naim [2015] 2 CLJ 1037 (FC) – The plaintiff’s burden is not absolved
even if the defendant did not lead any evidence.

(c) Proof of a crime in a civil case

(i) Fraud – a high standard of proof is required in cases where fraud is

alleged.
Evidence 434

• Nederlandsche Handel-Maatschappjij NV (Netherlands Trading

Society) v Koh Kim Guan (1959) 25 MLJ 173
• Narayanan v Official Assignee AIR 1941 PC 93
• Hornal v Neuberger Products [1957] 1 QB 247
• Tan Chye Chew & Anor v Eastern Mining & Metals Co Ltd
[1965] 1 MLJ 201
• Lau Hee Teoh v Hargill Engineers Sdn Bhd [1980] 1 MLJ 145
• Saminathan v Pappa [1981] 1 MLJ 121
• Lee You Sin v Chong Ngo Khoon [1982] 2 MLJ 15
• Chu Choon Moi v Ngan Siew Tin [1986] 1 MLJ 34
• Nahar Singh v Pang Hon Chin [1986] 2 MLJ 141
• Ping anak Layang v Jee Shik Chuong [1991] 2 MLJ 422
• E & O Hotels v Ellarious George
• Chong Soo Sin v Industrial & Commercial Insurance Bhd [1992]
1 MLJ 636
• Tan Ah Chin & Sons Sdn Bhd v Ooi Bee Tat & Anor [1993] 3
MLJ 633
• Wong Sin Nang v Tiong Thai King [1995] 4 MLJ 261
• Azizah v Arab Eagles Sdn Bhd [1996] 5 MLJ 569
• Southern Estate Sdn Bhd v Tractors Malaysia [1996] 4 CLJ 344
• Dato’ Toh Kian Chuan v Swee Construction & Transport
Company (Malaya) Sdn Bhd [1996] 1 MLJ 730
• Ang Hiok Seng v Yim Yut Kiu [1997] 1 AMR 917
• Ong Ban Chai v Seah Siang Mong [1998] 3 MLJ 346
• Mohd Salleh Kassim v Taisho Marine & Fire Insurance [1999] 5
CLJ 302
• Hoo Kok Chong & Anor v Yong Tim [2000] 1 MLJ 305
• Yong Chou Chuen v Ling Ming Sing & Anor [2004] 7 MLJ 551
• Asean Securities Paper Mills Sdn Bhd v CGU Insurance Bhd
[2007] 2 MLJ 301
• Yap Cheong Leong v Yunazry Damanhuri [2011] 1 LNS 619
Evidence 435

• In Sinnaiyah & Sons v Damai Setia [2015] 5 MLJ 1, the

Federal Court revisited the issue of the standard of proof in
cases involving civil fraud.

• The Federal Court considered the various decisions on this

issue, which are referred to above; Saminathan, Ang Hiok
Seng, Yong Tim and Asean Securities.

• The Federal Court overturned Yong Tim (beyond reasonable

doubt) and Ang Hiok Seng (hybrid). It can also be argued that
by extension, Asean Securities has also been overturned.

• The standard of proof for all civil matters today in

Malaysia, whether they involve elements of fraud or
otherwise, must now be interpreted as being on a
balance of probabilities.

• The Federal Court also considered the position in the UK,

Canada, Australia and Singapore and concluded as follows:

“… [49] With respect, we are inclined to agree with learned

counsel for the plaintiff that the correct principle to apply is as
explained in In re B (Children). It is this: that at law there are
only two standards of proof, namely, beyond reasonable doubt
for criminal cases while it is on the balance of probabilities for
civil cases. As such even if fraud is the subject in a civil claim
the standard of proof is on the balance of probabilities. There is
no third standard. And ‘(N)either the seriousness of the
allegation nor the seriousness of the consequences should
make any difference to the standard of proof to be applied in
determining the facts’.
…
Evidence 436

[52] We therefore reiterate that we agree and accept the

rationale in In re B (Children) that in a civil claim even when
fraud is alleged the civil standard of proof, that is, on the
balance of probabilities, should apply.
...
[53] Accordingly, despite the reaffirmation of the law on the
issue in Yong Tim v Hoo Kok Cheong we hold that it is no
longer the law in this country. Similarly, the principles as
pronounced in Ang Hiok Seng and Lee You Sin v Chong Ngo
Khoon despite applying the civil standard to a certain extent
are also no longer the law. Hence, the disapproval of Lau Kee
Ko in Ang Hiok Seng is no longer relevant…”

• Ling Peck Hoe & Anor v Ding Siew Ching & Another Appeal
[2017] 7 CLJ 641 (FC) – doctrine of prospective overruling –
whether Sinnaiyah’s case applies to all pending cases and cases
under appeal.

(ii) Forgery –

• UABB v Tai Soon Heng [1993] 1 MLJ 182

• Boonsom Boonyanit v Adorna Properties Sdn Bhd [1995] 2 MLJ
863 [1997] 2 MLJ 62, [2000] 1 MLJ 241
• Lim Tai Ming & Sons Credit Sdn Bhd v Lim Tuck Thein [2001] 1
MLJ 57
• Malaysia Building Society Bhd v Sentiasa Harum Sdn Bhd
[2003] 5 MLJ 328
• Letchumanan Chettiar Alagappan (As Executor to SL Alamaloo
Achi (Deceased) & Anor v Secure Plantation Sdn Bhd [2017] 5
CLJ 418 (FC) – whether burden of proof in fraud and forgery
cases are the same.
Evidence 437

(iii) Immoral use of premises -

• Eastern Enterprise v Ong Choo Kim [1969] 1 MLJ 236
(iv) Matrimonial cases -

• Ng v Lim [1969] 1 MLJ 139

• Koh Teng Lam v Elsie Koh [1976] 1 MLJ 103
• Shanmugam v Pitchamany [1976] 2 MLJ 222
• Lim Nyuk Yin v Gan Kim Biow & Ors [1982] 2 MLJ 68
• Blyth v Blyth [1996] AC 643

(v) Constitutional Law case -

• Tun Datu Haji Mustapha bin Dato Harun v Tun Datuk Haji
Adnan Robert, & Datuk Joseph Pairin Kitingan (No 2) [1986] 2
MLJ 420

(vi) Disciplinary proceedings -

• R v Hampshire CC, ex parte Ellerton [1985] 1 All ER 599

4. Burden of proof in specific instances

(a) Section 103 EA

• burden of proof as to particular fact

• See illustration (b) to section 103 EA – the burden of proof on an
alibi is on the accused.
(b) Section 11 EA
• relevance of alibi as a defence; see illustration (a)

(c) Section 402A CPC

• Ku Lip See v PP [1982] 1 MLJ 194

• R v Chandrasekara [1942] NLR 44 (specific reference to dicta of
Soertz J)
Evidence 438

• R v Jayasena [1970] 1 All ER 219

• Dato’ Mokthar Hashim v PP [1983] 2 MLJ 232
• Yau Heng Fang v PP [1985] 2 MLJ 335
• Illian v PP [1988] 1 MLJ 421
• Arumugam a/l Mothiyah v PP [1995] 1 CLJ 58
• Chin Keon Lim v PP [1996] 1 CLJ 324
• PP v Ho Jin Lock [1999] 3 CLJ 849
• PP v Azilah Hadri & Anor [2015] 1 CLJ 579 (FC)
• Articles: Chin Tet Yung [1986] 2 MLJ 1 xvii, Rafiah Salim [1988] 2
MLJ xvii

(d) Section 105 EA

(i) The burden of proof is on the accused if he wants to rely on any

exceptions to criminal liability in the Penal Code, or any other
exceptions or provisos contained in any law defining the offence.

o Public Prosecutor v Sah Chin Chong [2018] 6 MLJ 505

• General exceptions in the Penal Code:

o R v Chandrasekara [1942] NLR 44
o R v Jayasena [1970] 1 All ER 219
o Nagappan Kuppusamy v PP [1988] 2 MLJ 53Ya bin Daud
v PP [1996] 2 CLJ 540
• Special exceptions in the Penal Code:
o Ikau Anak Mail v PP [1973] 2 MLJ 153
o P v Samer Klom Klom [1996] 2 CLJ 359
o Bala Matik v PP [2006] 2 CLJ 229

• Any other exception or proviso contained in any law defining

the offence:
Evidence 439

o PP v Yuvaraj [1969] 2 MLJ 89

o Lee Chin Hock v PP [1972] 2 MLJ 30
o Mohamad Radhi Yaakob v PP [1991] 3 MLJ 169

(ii) What is the significance of the dicta of Soertz J in R v Chandrasekara

[1942] NLR 44?

(iii) An accused need not be called to enter his defence merely to

discharge his burden of proof for insanity, if both the prosecution
and the defence do not dispute that the accused was insane at the
time of the commission of the offence.

• PP v Aldwin Rojas Saz [2019] 1 LNS 806 (CA)

(f) Section 106 EA

(i) Provides that when any fact is especially within the knowledge of
any person, the burden of proving that fact is upon him.

• Attygalle v R [1936] AC 338

• R v Turner’s (1816) 5 M & S 206
• Mary Ng v R [1958] MLJ 108
• PP v Lim Kawi Thean (1959) 25 MLJ 179
• Re Tan Kheng Cheng [1969] MLJ 310
• Lee Chin Hock v PP [1972] 2 MLJ 30 – s 105 applies to impose
a legal burden on the accused.
• Sundram v Arujunan [1994] 4 CLJ 300
• Jaafar Shaari & Siti Jama Hashim v Tan Lip Eng & Anor [1997]
4 CLJ 509
• PP v Hoo Chee Keong [1997] 4 MLJ 451
• Dr Shanmuganathan v Periasamy s/o Sithambaram Pillai [1997]
3 MLJ 61
Evidence 440

• Gnanasegaran a/l Parajasingam v PP [1997] 3 MLJ

• Pendakwa Raya v Tan Sri Muhammad bin Muhammad Taib
[1999] 2 MLJ 305
• The People’s Insurance Co (M) Sdn Bhd v Sykt Kenderaan
Melayu Kelantan Bhd [2001] 1 MLJ 279

(ii) Is the doctrine, res ipsa loquitur a presumption or rule of evidence?

Does section 106 EA apply to a case involving the application of the
doctrine?

• The Kite [1933] P 154

• Barkway v South Wales Transport [1949] 1 KB 54
• Ramasamy v R (1955) MLJ 95
• A Clyde v Wong Ah Mei [1970] 2 MLJ 183
• Wong Choon Mei v Dr Kuldeep Singh [1985] 2 MLJ 373
• Wilsher v Essex Area Health Authority [1988] AC 1074
• Muniyandi a/l Periyan & Anor v Eric Chew Wai Keat & Anor
[2003] 3 MLJ 527
• Billion Origin Sdn Bhd v Newbridge Networks Sdn Bhd & Anor
(Yap Burgess Rawson International Sdn Bhd, Third Party)
[2006] 6 MLJ 768

(iii) Does the doctrine, res ipsa loquitur fit into any of the provisions of
the EA?

(g) Section 114 EA.

G. PRIMA FACIE CASE/CASE TO ANSWER

1. Meaning

• PP v Chin Yoke [1940] MLJ 37

• Karam Singh v PP [1967] 2 MLJ 25
Evidence 441

• Tan Boon Kean v PP [1995] 3 MLJ 514

• Arulpragasan a/l Sandaraju v PP [1997] 1 MLJ 1
• Loh Kam Foo v PP [1997] 4 MLJ 113
• Dalip Bhagwan Singh v PP [1998] 1 MLJ 1PP v Mohd Aszzid Abdullah
[2008] 1MLJ 281

✓ Criminal Procedure Code (Amendment) Act 1997 which introduced new

sections 173(f)(i), (ii), (h)(i), (ii), 180(1), (2), (3), 182A(1), and (2) EA.
o Looi Kow Chai v PP [2003]1 CLJ 734
o Balachandran v PP [2005] 2 CLJ 179

2. Position in Singapore and Brunei

• Ng Theng Shuang v PP [1995] 2 SLR 36

• Yeo Tse Soon v PP [1995] 2 CLJ 179

3. Pre-Haw Tua Tau position

• PP v Man bin Abas [1935] 1 MC 169
• PP v Chin Yoke [1940] MLJ 37
• Karam Singh v PP [1967] 2 MLJ 25
• PP v Saimin [1971] 2 MLJ 16
• Zahari bin Yeoh Bai v PP [1980] 1 MLJ 160
• Ng Theng Shuang v PP [1995] 2 SLR 36
• Yeo Tse Soom v PP [1995] 2 CLJ 179

4. Haw Tua Tau v PP [1981] 2 MLJ 49

(the ‘not inherently incredible’ test was applied)

5. Developments after Haw Tua Tau:

(a) Cases which adopted the Haw Tua Tau approach:

• Ragunathan v PP [1982] 1 MLJ 139

Evidence 442

• Pavone v PP [1984] 1 MLJ 77

• Munusamy v PP [1987] 1 MLJ 492
• PP v Lam San [1991] 3 MLJ 426
• Junaidi bin Abdullah v PP [1993] 4 CLJ 201
• PP v Muhamad Nasir bin Shaharuddin & Anor [1994] 2 MLJ 576
• Ng Theng Shuang v PP [1995] 2 SLR 36
• Yeo Tse Soon & Anor v PP [1995] 2 CLJ 179
• Tan Boon Kean v PP [1995] 3 MLJ 514
• Arulpragasan a/l Sandaraju v PP [1997] 1 MLJ 1 (see minority
decision)
• PP v Tan Sri Muhammad Taib [1999] 6 CLJ 135
• PP v Sukumaran Sundram [1999] 4 CLJ 242
• Jaafar Ali v PP [1999] 1 CLJ 410

(b) Cases which retained the pre-Haw Tua Tau position:

• Goh Kim Looi v PP [1994] 2 CLJ 809

• Khoo Hi Chiang v PP [1994] 1 MLJ 265
• Arulpragasan a/l Sandaraju v PP [1997] 1 MLJ 1 (see the majority
decision)
• Abu Bakar Othman v PP (unreported)
• Loh Kam Foo v PP [1997] 4 MLJ 113
• Lt. Kol Yusof v Kol. Anuar [1997] 1 MLJ 562
• Bahruni Ismail v PP [1997] 2 MLJ 265
• Dalip Bhagwan Singh v PP [1997] 4 CLJ 645
• PP v Sarjit Kaur [1998] 1 MLJ 184
• PP v Ong Cheng Heong [1998] 6 MLJ 678
• PP v Dato’ Seri Anuar Ibrahim (No. 3) [1999] 2 MLJ 1
• PP v Mohamed Terang bin Amit [1999] 1 MLJ 154
• PP v Krishna Rao [2000] 1 CLJ 446
✓ See Articles –
o Ahmad Ibrahim [1981] JMCL 223
Evidence 443

o Choo Han Teck [1987] 29 Mal LR 29

o The Prima Facie Test Merry-go-Round [2009] 1 MLJ clxiii
o The Test at the Close of the Prosecution’s case – The Maximum
Evaluation Test [2006] 4 MLJ cxliv

(c) Current position – only a prima facie level.

See sections 173(f)(h)(m), 180 & 182A CPC (when the case for the
prosecution has concluded the court shall consider whether the
prosecution has made out a prima facie case against the accused).

• PP v Mohd Bandar Shah b Nordin & Anor [2005] 2 MLJ 349

• PP v Mohd Radzi b Abu Bakar [2005] 6 AMR 203
• Balachandran v PP [2005] 2 MLJ 301
• Olier Sheikh Awoyal Shekh v PP [2017] 2 CLJ 141 (FC) – whether
the High Court has applied the wrong burden of proof and is there a
wide gap in the case of the prosecution.

H. ADMISSIONS AND CONFESSIONS

1. Admissions

(a) Meaning

(i) Section 17(1) EA defines admission as a statement, oral or

documentary, which suggest any inference as to any fact in issue or
relevant fact, and which is made by certain persons under certain
circumstances.

• Hu Chang Pee v Tan Sri Datuk Paduka (Dr) Ting Pek Khiing
1999] 3 MLJ 402
• Amer Singh @ Mohinder Singh v Kelana Resorts Sdn Bhd
[2007] 8 MLJ 175
Evidence 444

(ii) See also sections 18-22 EA

• I Eok Kee & Anor v Tan Chiah Hock & Anor [1995] 3 MLJ 613

(b) Admission in civil cases

(i) Section 23 EA

• R v Wong Ah Kin [1935] MLJ 169

• Tomlin v Standard Telephones & Cables Ltd [1969] 3 All ER
201
• Ted Bates v Balbir Singh [1979] 2 MLJ 17
• MBB v Foo See Moi [1981] 2 MLJ 17
• Rush Tompkins Ltd v Greater London Council & Anor [1988] 3
All ER 737
• AB Chew Investments Pte Ltd v Lin Tjoen Kong [1989] 3 MLJ
328
• Rakyat First Merchant Bankers Bhd v Tunku Najihah [1993] 1
CLJ 156
• Wong Nget Thay v Tay Choo Foo [1995] 4 CLJ 617
• Oh Kuang Liang v Associated Wood Industries [1995] 2 CLJ
961
• Daya Aneka Sdn Bhd v Kuan Ah Hock [1998] 6 MLJ 537
• Dusun Desaru Sdn Bhd v Wang Ah Yu [1999] 5 MLJ 449
• Capital Insurance Bhd v Cheng Heng Loong Goldsmiths (KL)
Sdn Bhd [2005] 6 AMR 177
• Jumbo Top Sdn Bhd v Automotive Corp (M) Sdn Bhd [2008] 1
MLJ 718
• Bekalan Sains P & C Sdn bhd c Bank Bumiputra Malaysia
Berhad [2011] 5 MLJ 1

• Confessions
Evidence 445

(a) Meaning

• section 17(2) EA defines confession as an admission made at any

time by a person accused of an offence, stating or suggesting the
inference that he committed that offence.
o Anandagoda v R [1962] MLJ 289
o Lemanit v PP [1965] 2 MLJ 26
o Herchun Singh v PP [1969] 2 MLJ 209
o R v Sharp [1981] 1 All ER 65
o R v Leung Kam Kwok [1984] 81 Cr App Rep 83
o Chan Kin Choi v PP [1991] 1 MLJ 260
o Abdul Khalid v PP [1995] 1 MLJ 692
o PP v Loo Seng Yip [2005] 1 AMR 647
o Pasupathy a/l Kanagasaby v PP [2005] 1 MLJ 493
o Francis Antonysamy v PP [2005] 2 CLJ 481
o PP v Png Shwu Guan [2007] 3 MLJ 183
o PP v Arokiasamy a/l Alphonso [2008] 2 AMR 817
o Mohd Shamshir bin Md Rashid v PP [2008] 5 AMR 29

(b) Factors which render the confession inadmissible

(i) Take note of the relationship between sections 17(2), 21, 24, 25 and
26 EA and section 113 CPC?

(ii) Take note of section 113 (3) CPC, which provides that where the
accused had made a statement during the course of police
investigation, such statement may be admitted in evidence only in
support of his defence during the course of the trial. This provision
applies to Penal Code offences.
Evidence 446

(iii) There are provisions in other specific statutes which allows for
admissibility of cautioned statement made by an accused, such as:

• Section 37A Dangerous Drugs Act 1952

• Section 16 Kidnapping Act 1961
• Section 72 Anti-Money Laundering, Anti-Terrorism Financing
and Proceeds of Unlawful Activities Act 2001
• Section 53 Malaysian Anti Corruption Commission Act 2009
• Section 24 EA provides inter alia that a confession made by
an accused person is irrelevant and vitiated in a criminal
proceeding if it is made after the impression caused by
inducement, threat or promise having reference to the charge
against him proceeding from a person in authority. However,
section 24 EA has to be read together with section 28 EA.
o Murugan v PP (1924) 5 FMSLR 108
o Jubri Haji Salleh v PP [1947] MLJ 88
o PP v Amat [1955] MLJ 473
o PP v Naikan [1961] MLJ 147
o Deokirian v Queen [1969] 1 AC 20
o PP v Law Say Seck [1971] 1 MLJ 199
o PP v Haji Kassim [1971] 2 MLJ 115
o Re Lee Kim Ching [1974] 2 MLJ 44
o DPP v Ping Lin [1976] AC 574
o Lim Kim Tjok v PP [1978] 2 MLJ 94
o PP v Chong Boo See [1988] 3 MLJ 292
o PP v Chan Choon Keong [1989] 2 MLJ 429
o PP v Ramasamy Sebastian [1991] 1 MLJ 75
o Aziz bin Muhamad Din v PP [1996] 5 MLJ 473
o Chan Ming Cheng v PP [2002] 3 MLJ 733
o Tan Ewe Huat v PP [2004] 1 CLJ 521
o PP v Nomezam Apandy Bin Abu Hasan [2005] 4 MLJ 365
o Ahmad Najib Bin Aris v PP [2007] 2 MLJ 505
Evidence 447

o Public Prosecutor v Arokiasamy a/l Alphonso [2008] 3 MLJ

251
• Section 28 EA provides that a confession will become relevant
if made after the impression caused by any threat, inducement
or promise has been fully removed.
o Abdullah bin Awang Bongkok v PP [1956] MLJ 90
o R v Smith [1959] 2 QB 35
o Lim Sing Hiaw v PP [1965] 1 MLJ 85

• Section 25 EA provides that a confession made to a police

officer below the rank of Inspector is irrelevant and
inadmissible.
o PP v Ng Goh Weng & Anor [1979] 1 MLJ 127

• Section 26 EA provides that a confession made by any person

whilst he is in the custody of a police officer is relevant and
admissible, unless it is made in the immediate presence of a
Sessions Court Judge or Magistrate.
✓ Take note of the repeal of section 115 CPC vide Act
A1274/2006.
o Sambu v R [1947] MLJ 16
o Chong Teng v PP [1960] MLJ 153
o PP v Law Say Seck & Anor [1971] 1 MLJ 199
o Eng Sin v PP [1974] 2 MLJ 168
o PP v Shee Chin Wah [1998] 5 MLJ 429

• Oppression:
o R v Priestley [1965] 51 Cr App Rep 1
o R v Prager [1971] 1 WLR 260
o Dato Mokhtar Hashim v PP [1983] 2 MLJ 232
o R v Fulling [1987] 2 All ER 65
Evidence 448

o PP v Kamde Raspani [1988] 3 MLJ 289

o PP v Chan Choon Keong [1989] 2 MLJ 427
o PP v Lim Kian Tat [1990] 3 MLJ 154
o PP v Tan Boon Tat [1990] 2 MLJ 466
o PP v Veerankutty [1990] 3 MLJ 498
o Hasibullah bin Mohd Ghazali v PP [1993] 3 MLJ 321
o PP v Goh Kim Looi [1994] 2 AMR 1381
o PP v Krishna Rao a/l Gurumurthi & Ors [2000] 1 MLJ 274
o PP v Vathumalai a/l Mahalingam [2003] 1 MLJ 549

• The need for a voir dire (trial within a trial) :

o Wong Kam Ming v R [1980] AC 247
o Dato’ Mokhtar Hashim v PP [1983] 2 MLJ 232
o Articles – Yeo [1981] 13 MLR 31, Choo [1989] Nov. Legal
Studies 261

(iv) Section 27 EA

• Provides that any information given by a person while in police

custody, whether such information amounts to a confession or
not, is admissible if it leads to a discovery of a fact in question
and provided that such information relates distinctly to the fact
discovered, that fact may be proved. Hence, it is information
leading to discovery of for e.g. an incriminating item/exhibit.

• Must the information pursuant to section 27 EA be voluntarily

given?
o Wai Chan Leong v PP [1989] 3 MLJ 35
o Lam Chi Ming & Anor v R [1991] 3 All ER 172
o Mohd Desa bin Hashim v PP [1995] 3 MLJ 350
o In Goi Ching Ang v PP [1999] 1 CLJ 829
o Francis Antonysamy v PP [2005] 2 CLJ 481
Evidence 449

o PP v Zulkipli Bin Othman & Ors [2005] 5 MLJ 170

o Hanafi b Mat Hassan v PP [2006] 4 MLJ 134
o Y Jeyamuraly Yusiah v PP [2007] 5 CLJ 605
o Amathevelli a/p R Ramasamy v PP [2008] 3 MLJ 782
o Krishnan Rao a/l Gurumurthi v PP [2009] 3 MLJ 643
o Khairuddin Bin Hassan v PP [2010] 3 MLJ 244
o J Rasvinder Singh Jaggir Singh v PP [2012] 3 CLJ 924
o Wan Bakri bin Wan Ahmad v PP [2013] 2 MLJ 242

Rationale and object of section 27 EA is explained by Sir John

Beaumont in Pulukuri Kotayya & Ors v Emperor AIR 1947 PC
67 as follows:

“The section seems to be based on the view that if a fact is

actually discovered in consequence of information given, some
guarantee is afforded thereby that the information was true
and accordingly can be safely allowed to be given in evidence;
but clearly the extent of the information admissible must
depend on the exact nature of the fact discovered to which
such information is required to relate”.

o Pulukkuri Kottaya v KE [1947] PC 67

o Lim Ah Oh v R [1950] MLJ 269
o Hashim v PP [1956] MLJ 233
o PP v Sandra Margaret Birch [1977] 1 MLJ 129
o Sum Kum Seng v PP [1981] 1 MLJ 244
o PP v Tan Keo Hock [1982] 2 MLJ 190
o PP v Liew Sam Seong [1982] 1 MLJ 223
o Krishnan v PP [1987] 1 MLJ 292
o PP v Yap Meow Fan [1990] 2 CLJ 288
o PP v Shariff bin Saad [1992] 2 MLJ 770
o Pang Chee Meng v PP [1992] 1 CLJ 39
o PP v Lim Kee Chuan [1992] 2 CLJ 1160
Evidence 450

o PP v Basri Salihin [1994] 2 MLJ 476

o PP v Muhamad Nasir Shaharussin [1994] 2 MLJ 576
o Hasamuddin v PP [2002] 2 MLJ 405
o PP v Mohd Farid [2002] 3 MLJ 301
o PP v Hashim Hanafi [2002] 4 MLJ 176
o PP v Krishna Rao [2000] 1 CLJ 446
o Pendakwa Raya v Chong Soon Wah [2009] 7 AMR 339
o Amathevelli a/p Ramasamy v PP [2009] 2 AMR 281
o Azilah bin Hadri & Anor v PP and anor appeal [2013] 5
MLJ 3 09
o Shah Rizan bin Sulong v PP [2013] 4 MLJ 489
o Md Zainuddin bin Raujan v PP [2013] 4 MLJ 596
o Siew Yoke Keong v PP [2013] 3 MLJ 630
o PP v Azilah Hadri & Anor [2015] 1 CLJ 579 (FC)
o Pathmanabhan Nalliahnen v PP & other Appeals [2017] 4
CLJ 137 (FC)
• See also section 113 (4) CPC

(v) Section 29 EA

• provides that if a confession made by an accused person under

section 24 is relevant it does not become irrelevant merely
because it was made:
o under a promise of secrecy; or
o in consequence of a deception practised on the accused
person for the purpose of obtaining it; or
o when he was drunk; or
o because it was made in answer to questions which he
need not have answered, whatever may have been the
form of those questions or
o because he was not warned that he was not bound to
make a confession and evidence of it might be given
Evidence 451

against him.
▪ Datuk Haji Harun v PP [1977] 2 MLJ 155
▪ Lee Weng Sang v PP [1978] 1 MLJ 168

(vi) Section 30 EA

• A confession which incriminates a co-accused may be taken

into consideration under this section provided the accused are
jointly tried for the same offence.
o Koh Ah Chua v PP (1948) MLJ 11
o Bhuboni Sahu v R AIR 1949 PC 257
o Amin b Mohd v R (1956) 2 MC 251
o Yusoff & Anor v PP (1956)22 MLJ 47
o Balbir Singh v Punjab State AIR 1957 SC 216
o Daud b Awang Ngah & Ors v PP [1958] 24 MLJ 168
o Yaacob v PP [1966] 2 MLJ 209
o Herchun Singh v PP [1969] 2 MLJ 209
o Yap Chai Chai v PP [1973] 2 MLJ 219
o PP v Yeoh Teck Chye [1981] 2 MLJ 176
o PP v Nordin bin Johan [1983] 2 MLJ 221
o Dato’ Mokhtar Hashim v PP [1983] 2 MLJ 232
o Sim Ah Cheoh v PP [1991] 2 MLJ 353
o Chin Seow Noi v PP [1994] 1 SLR 135
o Abdul Rashid v PP [1994] 1 SLR 119
o Lee Yuan Kwang v PP [1995] 2 SLR 352
o Abdul Khalid bin Abdul Hamid v PP [1995] 1 CLJ 49
o Lee Yuan Kwang v PP [1995] 2 SLR 349
o Juraimi v PP [1998] 1 MLJ 537
o Awang Kamaluddin v PP [1999] 6 CLJ 412
o Lawrence Masuni & Anor v PP [2011] 4 CLJ 593
o Mohd Fazli Ismail & Anor v PP [2011] 1 LNS 720
✓ Article – Akram [1989] 2 CLJ 335
Evidence 452

(c) Retracted confessions – in the course of trial, it is often the case that the
accused withdraws or retracts his confession. In such a situation, the
issue is whether it can still be relied on.

• Pyare Lal Bhargava v State of Rajasthan AIR 1963 SC 1094

• Yap Sow Keong v PP [1947] MLJ 90
• Osman v PP [1968] 2 MLJ 137
• PP v Mustari bin Suri [1989] 2 MLJ 77
• Hasibullah v PP [1993] 3 MLJ 321
• Bala Matik v PP [2006] 2 CLJ 229

(d) Relevancy of an exculpatory statement in a cautioned statement and oral

statement made upon arrest.

• MsImanga Lesaly v PP [2004] AMR 496

I. CIRCUMSTANTIAL EVIDENCE

1. Meaning

• “Where the evidence is wholly circumstantial what has to be considered is

not only the strength of each individual strand of evidence but also the
combined strength of these strands when twisted together to make a
rope. The real question is: is that rope strong enough to hang the
prisoner?”

per Thomson CJ (as he then was) in Chan Chwen Kong v Public

Prosecutor (1962) MLJ 307’

• In Karam Singh v PP [1967] 2 MLJ 25 HT Ong FJ noted: “In a case where

the prosecution relies on circumstantial evidence, such evidence must be
inconsistent with any other hypothesis than that of the guilt of the
Evidence 453

accused”.

• See also -
o Sunny Ang v PP [1966] 2 MLJ 195
o PP v Sarjit Kaur [1998] 3 CLJ 184

• All the circumstantial evidence when taken together must point to the
irresistible conclusion that it was the accused who committed the offence.
If any of the circumstances proved in a case are consistent with the
innocence of the accused or the chain of the continuity of the
circumstances is broken, the accused is entitled to the benefit of the
doubt.
o Low Chiew Mun v Public Prosecutor [2019] MLJU 1557 (CA).
o Ling Hang Tsyr v Public Prosecutor [2019] MLJU 1182 (CA)

2. Issues to consider:

(a) What is the standard of proof?

(b) Is there a need to give a further and special direction?

3. Examples of cases based on circumstantial evidence

• Hodge’s case [1836] 168 ER 1136

• Kartar Singh v R [1952] MLJ 85
• R v Onufrejczyk [1955] 1 QB 388
• Chan Chwen Kong v PP [1962] MLJ 307
• Jubri v PP [1962] 28 MLJ 34
• Sunny Ang v PP [1966] 2 MLJ 195
• Karam Singh v PP [1967] 2 MLJ 25
• Ng Hoong Kee v PP [1967] 1 MLJ 85
• Mc Greevey v DPP [1973] 1 All SR 503
Evidence 454

• Eng Sin v PP [1974] 2 MLJ 168

• Jayaraman v PP [1982] 2 MLJ 306
• Dato’ Mokhtar Hashim v PP [1983] 2 MLJ 232
• Ng Thian Soong v PP [1990] 2 MLJ 148
• PP v Lin Lian Chen [1992] 2 MLJ 561
• Ramuthi Subramaniam v PP [1994] 4 CLJ 1060
• Abdul Khalid v PP [1995] 1 MLJ 692
• Juraimi bin Husin v PP [1998] 1 MLJ 537
• Shanmugam v PP [1999] 1 MLJ 288
• PP v Syed Muhamad Faysal bin Syed Ibrahim [2004] 6 MLJ 303
• Mohd Abbas Danus Baksan v PP [2006] 3 CLJ 880
• PP v Richard Chia Kok Hiong [2007] 3 MLJ 129
• Ahmad Najib bin Aris v PP [2007] 2 MLJ 505
• PP v Chung Tshun Tin & Ors [2008] 1 MLJ 559
• PP v Hanif Basree bin Abdul Rahman [2008] 3 MLJ 161
• Razak bin Abu v PP [2008] 4 MLJ 248
• PP v Mohd Bandar Shah Bin Nordin & Anor [2008] 4 AMR 806
• Johar Bin Mustapha v PP [2008] 5 AMR 303
• Yeap Boon Hai v Pendakwa Raya [2009] 3 AMR 673
• PP v Karim Bin Abdul Jabar [2008] 3 MLJ 6
• Kow Liang Tiang v PP [2011] 1 LNS 783
• PP v Azilah Hadri & Anor [2015] 1 CLJ 579 (FC)
• Mahavir Singh v State of Haryana [2015] 3 CLJ 1009 (SC India)
• Pathmanabhan Nalliannen v PP & other Appeals [2017] 4 CLJ 137 (FC)

J. PRESUMPTIONS

1. Meaning
Evidence 455

“As a matter of law, a presumption is a statutory invention that upon proof of

a fact, called a basic fact, an inference of another fact, called the presumed
fact, can be drawn (see PP v Ooi Seng Huat [1968] 2 MLJ 168).”

Per Augustine Paul J in Public Prosecutor v Chia Leong Foo [2000] 6 MLJ 705.
2. Purpose

3. Effect on the burden and standard of proof:

• Re Khoo Thean Teik Settlements [1929] SSLR 50

• PP v Yuvaraj [1969] 2 MLJ 89
• Akin Khan v PP [1987] 2 MLJ 217
• Mohd Radhi bin Yaakob v PP [1991] 3 MLJ 169
• Ghazali bin Ariffin v Ahmad bin Bakar [1992] 1 MLJ 282
• PP v Muhammad Nasir [1994] 2 MLJ 576

4. Type of presumptions

(a) Presumption of fact – section 4(1) EA

• The court may regard the fact as proved unless and until it is
disproved, or may call for proof of it.
o Lt Kol Yusof Bin Abdul Rahman v Kol Anuar Bin Md Amin &
Anor [1997] 1 MLJ 562

(b) Rebuttable presumption of law – section 4(2) EA

• The court shall regard such fact as proved unless and until it is
disproved.
o PP v Tan Tatt Eek [2005] 2 MLJ 685

(c) Irrebuttable presumption of law – section 4(3) EA

Evidence 456

• The court shall not allow evidence to be given for the purpose of
disproving the fact presumed.

5. Examples:

(a) Presumption of fact

• Sections 86 – 89 EA – presumptions of fact relating to documents

• Section 90 EA – presumption as to documents 20 years’ old

o Ghazali bin Ariffin v Ahmad bin Bakar [1992] 1 MLJ 282

• Section 114 EA – general presumption of fact

o Amathevelli a/p Ramasamy v PP [2009] 2 AMR 281

(b) Rebuttable presumption of law:

• Section 107 EA – Section 108 EA – presumption of death

o Muthu Thambi v Janagi [1995] MLJ 47
o Re Gun Soon Thin [1997] 2 MLJ 35
o Re Osman Bachit [1997] 4 MLJ 445

• Section 112 EA – presumption of legitimacy

o Ainan v Syed Abu Bakar [1939] MLJ 209

(c) Irrebuttable presumption of law

• Section 41(2) EA
• Section 113 EA

6. Section 114 EA – presumption of the existence of certain fact

Commonly applied – s 114 (a), (b), (e), (f), (g), (h)
Evidence 457

• Application of section 114 (a) EA

o PP v Lim Kiang Chai [2016] 4 CLJ 173 (FC)
o Tee Yee Sein v Public Prosecutor [2018] 6 MLJ 81

7. Section 114(g) EA – presumption of adverse inference

(a) Section 114(g) EA provides that the court may presume that evidence
which could be and is not produced would if produced be unfavourable to
the person who witholds it.
The power of the court to draw an adverse inference under s 114(g) of
the Evidence Act 1950 is discretionary. It depends on the circumstances
of the case and particularly in cases where the material witnesses are not
produced.

• Amri bin Ibrahim & Anor v Public Prosecutor [2017] 1 MLJ 1

(b) Evidence withheld must be material.

• Munusamy v PP [1987] 1 MLJ 492

• Chew Gim Ser v PP [2005] 1 SLR 201
• Idris b Hasan v Lembaga Pertubuhan Peladang Perlis & Anor [2007]
6 MLJ 147
• DNC Asiatic Holdings Sdn Bhd & Ors v Honda Giken Kogyo Kabushiki
Kaisha & Ors [2020] 1 CLJ 799.

(c) If there are reasons for the non-production of the evidence/witness, then
presumption of adverse inference may not be invoked:

• Murugan v Lew Chu Cheong [1980] 2 MLJ 139

• Ti Chuee Hiang v PP [1995] 2 MLJ 433
• PP v Chong Chee Kin [1995] 2 MLJ 679
• PP v Mansor bin Mohd Rashid [1996] 3 AMR 3989
Evidence 458

• Mohd Said bin Samad v PP (1998) 2 MLJ 294

• PP v Letchumanan [2000] 4 CLJ 685
• PP v Chia Leong Foo [2004] 4 CLJ 649

(d) Application of section 114(g) EA in criminal cases:

• Goh Ah Yew v PP [1949] MLJ 63

• Baharom v PP (1960) 26 MLJ 249
• Liew Siew & Anor v PP [1969] 2 MLJ 232
• Su Ah Ping v PP [1980] 1 MLJ 75
• PP v Hua Tua Tau [1981] 2 MLJ 49
• Abdullah Zawawi v PP [1985] 2 MLJ 16
• Teoh Hoe Chye v PP [1987] 1 MLJ 220
• Munusamy v PP [1987] 1 MLJ 492
• Namasiyiam & Ors v PP [1987] 2 MLJ 336
• Illian v PP [1988] 1 MLJ 421
• Choo Chang Teik v PP [1991] 3 MLJ 423
• Mohamad Radhi bin Yaakob v PP [1991] 3 MLJ 169
• PP v Alcontara [1993] 3 MLJ 568
• Alcontara Ambross Anthony v PP [1996] 1 MLJ 209
• Lee Lee Chong v PP [1999] 1 AMR 925
• PP v Dato’ Seri Anwar Ibrahim (No. 3) [1999] 2 MLJ 1
• Kesavan Senderan v PP [1999] 1 CLJ 343
• PP v Yen Kee Sew [1999] 4 AMR 4803
• PP v Krishna Rao [2000] 1 CLJ 446
• Balachandran v PP [2005] 1 CLJ 85
• PP v Ee Boon Keat [2006] 2 MLJ 633
• Dato’ Hj Azman Mahalan v PP [2007] 3 CLJ 495
• Mohd Bakri Bin Belaho v PP [2008] 1 MLJ 190
• Ghazalee bin Kassim & 2 Ors v PP [2008] 4 AMR 665
• Pendakwa Raya v Phoon Wai Yee & Anor [2009] 3 AMR 695
• Pendakwa Raya lwn Kumaran a/l Sappani & Satu Lagi [2009] 7 AMR
Evidence 459

428
• PP v Nagathevan a/l Manoharan & 2 Ors [2009] 1 AMR 197
• Mohd Bakri Bin Belaho v PP [2008] 1 MLJ 90
• PP v Chung Tshun Tin & Ors [2008] 1 MLJ 559
• PP v Mohd Nazrul Bin Shuhaimi [2009] 6 MLJ 662
• PP v Fernandes [2009] 7 MLJ 1
• Nanda Kumar Kunyikanan Anor v PP [2011] 8 CLJ 406
• Yeo Kwee Huat v PP [2011] 5 CLJ 630
• Chin Kek Shen v PP [2013] 5 MLJ 827
• Siew Yoke Keong v PP [2013] 3 MLJ 630
• Mohd Yusri Ab Hamid v PP [2015 1 CLJ 72 (COA)
• PP v Azilah Hadri & Anor [2015] 1 CLJ 579 (FC)
• Amri Ibrahim & Anor v PP [2017] 1 CLJ 617 (FC)
• Mohammad Azanul Haqimi bin Tuan Ahmad Azahari v Timbalan
Menteri Dalam Negeri, Malaysia & Ors [2019] 6 MLJ 220 [FC]

(e) Application of section 114(g) EA in civil cases:

o Selvaduray v Chinniah [1939] MLJ 253

o Murugan v Lew Chu Cheong [1980] 2 MLJ 139
o Guthrie Sdn Bhd v Trans-Malaysia Leasing Corp Bhd [1991] 1 MLJ 33
o Yoke Fah, (deceased) v Pacific & Orient Insurance Co Sdn Bhd
[1991] 1 MLJ 303
o Yap Seng Hock v United Asian Bank Bhd [1994] 2 CLJ 319
o Juahir bin Sadikon v Perbadanan Kemajuan Ekonomi Negeri Johor
[1996] 3 AMR 2984
o Priyamas Export Corp Sdn Bhd v Bank Buruh (M) Sdn Bhd [1998] 3
MLJ 273
o Chan Yoke Lian (Administrator of the estates of Chong Dato’
Abdullah Hishan bin Haji Mohd Hashim v Sharma Kumari Shukla (No.
3) [1999] 6 MLJ 589
Foo Fio Na v Hospital Assunta & Anor [1999] 6 MLJ 747
Evidence 460

o Malaysia Building Society Bhd v Sentiasa Harum Sdn Bhd [2003] 5

MLJ 328
o Idris Hassan v Lembaga Pertubuhan Peladang Perlis & Anor [2007] 4
CLJ 803
o Tan Yen Foon v Pentadbir Tanah Wilayah Persekutuan Kuala Lumpur
[2008] 1 MLJ 250
o Mayban Securities Sdn Bhd v Perumal a/l Murugesu [2008]1 MLJ 832
o Sanmaru Overseas Marketing Sdn Bhd & Anor v PT Indofood Interna
Corp. & Ors [2009] 2 MLJ 765
o Krishnan Nambiar s/o Prabhakaran & Ors v Dr P Mahendran & Anor
[2009] 4 MLJ 267
o Caley Ototo Worldwide Sdn Bhd v Sun Wen Long [2009] 5 AMR 187
o Mahadeva Krisanon v Teja Singh [2011] 1 CLJ 1016
o Goh Hock Hai v EON Bank Bhd [2011] 3 MLJ 189
o Azman Mahmood & Anor v SJ Securities Sdn Bhd
o [2012] 6 CLJ 573
o Ho Hup Construction Company Sdn Bhd v Woo Thin Choy [2015] 9
CLJ 706 (CA)
o Syarikat Timbermine Sdn Bhd v Kerajaan Negeri Kelantan Darul
Naim [2015] 2 CLJ 1037 (FC) – whether adverse inference may be
invoked merely on account of failure to obtain evidence.
o Sun Holding (Sun Park Hotel) Co. Ltd & Ors v Export-Import Bank of
Malaysia Bhd. [2016] 6 CLJ 548 (CA)
o Article: Jeffrey Pinsler – “Adverse Inferences against an
accused person for failing to produce evidence” [1992] 1 MLJ
clxxxviii – cxcviii

8. Presumption in other statutes

(a) Prevention of Corruption Act 1961 (now Malaysian Anti-Corruption

Commission Act 2009 (Act 694))
 Evidence 461

• PP v Yuvaraj [1969] 2 MLJ 89

• PP v Ku Yahya Ku Bahari & Anor [2000] 3 CLJ 162
• Dato’ Haji Azman Bin Mahalan v PP [2007] 4 MLJ 142
(b) Internal Security Act (now repealed)

• Lee Chin Hock v PP [1972] 2 MLJ 30

• Nik Adli Bin Nik Abdul Aziz v Ketua Polis Negara [2001] 4 MLJ 598

(c) Dangerous Drugs Act 1952 (Act 34)

• Mohamad Radhi bin Yaakob v PP [1991] 3 CLJ 2073

• Sochima Okoye v PP [1995] 2 AMR 1069
• Alcontara a/l Ambross Anthony v PP [1996] 1 MLJ 20
• Muhammad Hassan v PP [1998] 2 CLJ 170
• PP v Letchumanan [2000] 4 CLJ 685
• Tunde Apatira & Ors v PP [2001] 1 MLJ 259
• Chan Ming Cheng v PP [2002] 3 MLJ 733
• Abdul Manap Bin Mohamad Hassan v PP [2003] 4 MLJ 374
• PP v Abdul Manaf Bin Muhamad Hassan [2006] 3 MLJ 193
• Chan King Yu v PP [2006] 6 MLJ 12
• Msimanga Lesaly v PP [2005] 4 MLJ 314
• Reza Mohd Shah v Ahamd Shah v PP [2005] 4 CLJ 581
• PP v Abdul Rahim b Kalandari Mustan (and Another Appeal) [2008] 5
AMR 753
• PP v Mohamad Rasid bin Jusoh [2009] 4 AMR 263

9. Conflicting presumptions - section 107 and section 108 EA

• R v Willshire [1881] 6 QBD 366

10. Section 114A EA - Presumption of fact in publication

(a) The provision as it stands creates a rebuttable presumption that any

Evidence 462

person who is registered with a network service provider as a subscriber

of a network service on which any publication originates from is presumed
to be the person who published or re-published the publication, unless
the contrary is proved.

(b) The section also provides that any “person whose name, photograph or
pseudonym appears on any publication depicting himself as the owner,
host, administrator, editor or sub-editor, or who in any manner facilitates
to publish or re-publish the publication is presumed to have published or
re-published the contents of the publication unless the contrary is
proved.”

(c) The provision presumes publication and ownership of offending materials

posted online if they are made using someone's identity or device.
• See article by Gita Radhakrishna, “Legal Presumptions and the
Burden of Proof: section 114A Evidence (Amendment) (No. 2) Act
2012”, Current Law Review [2013] 4 CLR 57

• Dato Hj Husam Hj Musa v Mohd Faisal Rohban Ahmad [2015] 1 CLJ

787 (CA)

K. CORROBORATION

1. Meaning

“…. evidence in corroboration must be independent testimony which affects the

accused by connecting or tending to connect him with the crime. In other
words, it must be evidence which implicates him, that is, which confirms in
some material particular not only the evidence that the crime has been
committed, but also that the prisoner committed it.”

per Lord Reading CJ in R v Baskerville [1916] 2 KB 658

Evidence 463

• R v Baskerville [1916] 2 KB 658

• Dowse v AG [1961] MLJ 249
• Attan bin Abdul Gani v PP [1970] 2 MLJ 143
• Muniandy v PP [1973] 1 MLJ 179
• PP v Datuk Haji Harun b Hj Idris [1977] 1 MLJ 15
• Mohd Din v PP [1985] 2 MLJ 251
• Lim Guan Eng v PP [1998] 3 MLJ 143
• Balachandran v PP [2005] 1 CLJ 85
• Dato Seri Anwar Ibrahim v PP & another appeal [2015] 2 CLJ 145 (FC)
• PP v Lim Kiang Chai [2016] 4 CLJ 173 (FC)

2. Corroboration Directions

(a) Where corroboration is required as a matter of law

(b) Where corroboration is required as a matter of practice and prudence only

but corroboration warning is required as a matter of law.
(No set of words need to be adopted to express the warning. Rather the
good sense of the matter must be expounded with clarity and in setting of
a particular case – Ng Yau Thai v Public Prosecutor [1987] 2 MLJ 214).

(c) Where both corroboration and corroboration warning are only required as
a matter of practice and prudence.

3. Categories of witnesses requiring corroboration:

(a) Children

(b) Accomplices

(c) Sexual complainants

(d) Co-accused persons

Evidence 464

(e) Witnesses making identification

(f) Other interested witnesses

4. Children

(a) Rationale

There may exist the danger that a child may not fully understand the
effect of taking an oath.

• Chao Chong v PP [1960] MLJ 238

• Liew Wah Ming v PP [1963] 82
• Loo Chuan Huat v PP [1971] 2 MLJ 167

(b) Competence

Section 118 EA

All persons shall be competent to testify except those who are unable to
understand the questions put to them, or unable to give rational answers
to those questions due to, interalia, tender age.

• Sidek bin Ludan v PP [1995] 1 AMR 722

(c) How to determine if child is to give sworn evidence?

(i) R v Hayes [1977] 64 Cr App R 194, per Bride LJ

“The important consideration we think, when a judge has to decide

whether a child should properly be sworn, is whether the child has a
sufficient appreciation of the solemnity of the occasion and the
added responsibility to tell the truth, which is involved in taking an
Evidence 465

oath, over and above the duty to tell the truth which is an ordinary
duty of normal, social conduct.”

(ii) Preliminary examination –

• R v Hayes [1977] 64 Cr App R 194

• Muharam bin Anson v PP [1981] 1 MLJ 222
• David James N (1992) 95 Cr App R 263
• Sidek bin Ludan v PP [1995] 1 AMR 722
• Arumugam a/l Mothiyah v PP [1995] 1 CLJ 58
• Tajudin bin Salleh v PP [2008] 1 MLJ 397
• Shamsinar bin Abdul Halim lwn Pendakwa Raya [2018] 4 MLJ
734

(iii) What are the corroboration directions?

• Section 133A EA provides that a trial court shall conduct a

preliminary inquiry to ascertain the capacity of the child to
understand the questions and give rational answers
o Sidek bin Ludan v PP [1995] 3 MLJ 178
o R v Manser [1934] 25 Cr App Rep 18
o R v Campbell [1956] 2 QB 432
o DPP v Hester [1973] AC 296
o R v Kilbourne [1973] AC 729
o R v Hayes [1977] 1 WLR 234
o R v Morgan [1978] 1 WLR 735
o R v Brasier [1979] 1 Leach 199

• Section 8 Oaths and Affirmation Act 1949

o R v Z [1990] 2 All ER 971
Evidence 466

o Sidek bin Ludan v PP [1995] 1 AMR 722

o Arumugam a/l Mothiyah v PP [1995] 1 CLJ 58
o PP v Mohamed Terang bin Amit [1999] 1 MLJ 154
o Yusaini bin Mat Adam v PP [1999] 3 MLJ 582
o Tajudin Bin Salleh v PP [2008] 1 MLJ 397
(d) Children giving sworn evidence
• R v Campbell [1956] 3 All ER 272
• PP v Mohd Noor bin Abdullah [1992] 1 CLJ 702
• Sidek Bin Ludan v PP [1995] 1 AMR 722

(e) Mutual corroboration

• R v Campbell [1956] 2 QB 432
• R v Kilbourne [1973] AC 729
• DPP v Hester [1973] AC 296
• R v Morgan [1978] 1 WLR 735

Article: Abu Bakar bin Munir – Child Abuse and The Law of Evidence
[1992] 1 MLJ lxv

(f) Exception

The Sexual Offences Against Children Act 2017 (“SOACA”) creates a

presumption that the child victim is competent to give evidence in the
proceeding where the accused is charged for offences under SOACA or
the Schedule to SOACA. The presumption is however rebuttal.

• Section 17 Sexual Offences Against Children Act 2017

An accused can be convicted of offences under SOACA or the Schedule to

SOACA notwithstanding the evidence of the child victim whether given on
oath or otherwise is uncorroborated.

• Section 18 Sexual Offences Against Children Act 2017

Evidence 467

5. Accomplices

(a) Who is an accomplice?

(i) Regina v Mullins 3 Cox CC 526 per Maule J

“An accomplice is a person who has concurred in the commission of

an offence.”

(ii) Also, persons who are participes criminis in respect of the actual
crime charged, receivers are accomplices to thieves –
• PP v Hj Ismail & Anor [1940] MLJ Rep. 60
• Davies v DPP [1954] AC 378
• Goh Khiok Phiong v Regina. [1954] MLJ 223
• Mat bin Awang Kechik & Ors v PP [1959] 25 MLJ 216
• PP v Abdul Azizsou [1978] 2 MLJ 165
• Ng Kok Lian v PP [1983] 2 MLJ 379
• Kuan Ted Fatt v PP [1985] 1 MLJ 211
• PP v Musli Oli [1995] 1 CLJ 242
• PP v Mohd Amin Bin Mohd Razali & Ors [2002] 5 MLJ 406
• Dato’ Seri Anwar bin Ibrahim v PP and Another Appeal [2004] 3
MLJ 405
• Pasupathy Kanagasaby v PP [2005] 1 CLJ 442
• Harcharan Singh & Anor v PP [2005] 1 MLJ 593
• Sabarudin bin Non & Ors v PP [2005] 4 MLJ 37
• Dato’ Hj Azman Mahalan v PP [2007] 3 CLJ 495
• PP v Nomezam Apandy bin Abu Hassan (No 2) [2008] 1 MLJ
681
• Chong Chee Liong v PP [2008] 2 AMR 309
• Mohammad Abdullah v PP [2011] 2 CLJ 481
• PP v Rahiman Selamat & kes yang lain [2015] 3 CLJ 92 (HC)
Evidence 468

(b) Difference between an agent provocateur and an accomplice

• Evidence of an agent provocateur does not require corroboration as

it is not the evidence of an accomplice.
o Teja Singh v PP [1950] MLJ 71
o Chao Chong v PP [1978] MLJ 238
o PP v Adnan Ishak [1992] 2 CLJ 1234
o PP v Thavanathan [1994] 2 MLJ 436
o Tee Thian See v Pendakwa Raya [1996] 3 MLJ 208
o PP v Amir Bin Mahmood & Ors [1996] 5 MLJ 159
o Francis Antonysamy v PP [2005] 2 CLJ 481
o PP v Nasaruddin Daud & Anor [2006] 6 MLJ 154

• Agent provocateur's evidence under the Sexual Offences Against

Children Act 2017 is presumed to be worthy of credit only of
attempting to commit or abet or having engaged in criminal
conspiracy to commit the offence if the main purpose of such
attempt, abetment or engagement was to secure the evidence
against the accused.

o Section 22(1) Sexual Offences Against Children Act 2017

• The conviction based solely on uncorroborated evidence of an agent

provocateur will not be rendered illegal nor will it be set aside even if
the Court has failed to refer the need to warn itself against the
danger of convicting on such evidence in the grounds of judgment.

o Section 22(2) Sexual Offences Against Children Act 2017

(c) What are the corroboration directions?

Evidence 469

(i) Section 133 EA – Provides that an accomplice shall be a competent

witness against an accused person; and a conviction is not illegal
merely because it proceeds upon the uncorroborated testimony of
an accomplice.

Although s 133 EA provided that a conviction based on an

accomplice evidence alone was not illegal, case law have warned of
the danger of an accomplice concocting a story to throw the blame
on the accused person.

• Mohamed bin Kanathi Meerah Mydin v Public Prosecutor [2019]

2 MLJ 194

(ii) Section 114(b) EA – Provides that a court may presume that an

accomplice is unworthy of credit unless he is corroborated in
material particulars.

• Bhuboni Sahu v R [1949] AIR PC 257

• Davies v DPP [1954] AC 378
• Lim Yam Hong v R 14 SSLR 152
• Tan Chwee Leong v R [1955] MLJ 146
• Chao Chong v PP [1960] MLJ 238
• Ng Yau Thai v PP [1987] 2 MLJ 214
• Dalip Bhagwan Singh v PP [1997] 4 CLJ 645
• PP v Dato’ Seri Anwar Ibrahim (No. 3) [1999] 2 MLJ 1
• PP v Datuk Haji Sahar Arpan [1999] 3 CLJ 427

(d) Why is an accomplice treated as a suspect witness?

• “It has been said that ex hypothesis an accomplice is an infamous

person and as such not deserving of belief. Again, it has been said
he has an obvious interest in diverting blame from himself to the
Evidence 470

person against whom he testifies. Again, it has been said he has an

obvious interest in currying favour with the authorities in whose
hand his own fate lies. Yet again it has been said that by reason of
his knowledge as an accomplice he is in a peculiarly favourable
position to concoct plausible false evidence.”

per Thomson LP in Tan See Boon v PP [1966] 1 MLJ 219

o Bhuboni Sahu v R [1949] AIR PC 257

o Lim Yam Hong v R 14 SSLR 152
o Davies v DPP [1954] AC 378
o Tan See Boon v PP [1966] 1 MLJ 219

(e) How to decide creditworthiness of accomplices?

• AG of Hong Kong v Wong Muk Ping [1987] 2 All ER 488

• R v Turner [1975] 60 Cr App Rep 67

(f) Mutual corroboration

• Bhuboni Sahu v R [1949] AIR PC 257

• Ramachandran v PP [1972] 2 MLJ 183
• See however example to section 114(b) EA

(g) Agent provocateur

• Namasiyam & Ors v PP [1987] 2 MLJ 336

• Lee Lee Chong v PP [1998] 4 MLJ 697
• Chan Chor Shuh v PP [2003] 2 MLJ 26
• Mohd Johi Bin Said & Anor v PP [2005] 5 MLJ 409
• PP v Ee Boon Keat [2006] 2 MLJ 633
• PP v Nasaruddin Daud & Anor [2006] 6 MLJ 154
• PP v Rosli bin Rikidin [2007] 4 MLJ 377
• Kamalahassan a/l Latchimanan v PP [2008] 3 MLJ 810
Evidence 471

6. Sexual complainants

(a) Rationale

“If, however, she complains of having been raped, then both prudence
and practice demand that her evidence should be corroborated.”

per Thomson LP in Din v PP [1964] MLJ 300

• Chao Chong v PP [1960] MLJ 238

• Din v PP [1964] MLJ 300
• Chandrasekaran & Ors v PP [1971] 1 MLJ 153
• PP v Mohamed Bin Majid [1977] 1 MLJ 121
• Aziz bin Muhamad Din v PP [1996] 5 MLJ 473

(b) Corroboration directions

• Chiu Nang Hong v PP [1965] 1 MLJ 40

• Aziz bin Muhamad Din v PP [1996] 5 MLJ
• PP v Rungit Singh [1999] 3 CLJ 30

(c) What are some of the evidence, which may corroborate the evidence of a
sexual complainant?

• Brabakaran v PP [1966] MLJ 64

• Mohamed Kunju v PP [1966] 1 MLJ 271
• Ah Mee v PP [1967] 1 MLJ 220
• Attan bin Abdul Ghani v PP [1970] 2 MLJ 143
• Yap Ee Kong & Anor v PP [1981] 1 MLJ 144
• PP v Emran bin Nasir (Brunei Reports) [1987] 1 MLJ 166
• Syed Abu Tahir a/l Mohamed Esmail v PP [1988] 3 MLJ 485
• Augustine Foong Boo Jang v PP [1990] 1 MLJ 225
• Dato’ Seri Anwar Ibrahim & Anor Appeal [2004] 3 CLJ 373
• Dato Seri Anwar Ibrahim v PP & another appeal [2015] 2 CLJ 145
Evidence 472

(FC)

7. Co-accused person
(a) How to distinguish between co-accused person and an accomplice for
purpose of corroboration?
• Abdul Khalid bin Abdul Hamid v PP [1965] 1 MLJ 692
• Mohamed Ali & Anor v PP [1965] 1 MLJ 261
• Pasupathy a/l Kanagasaby v PP [2005] 1 MLJ 493

(b) Corroboration directions

• Daud bin Awang Ngah v PP [1958] MLJ 168
• Abdul Khalid bin Abdul Hamid v PP [1965] 1 MLJ 692
• PP v Yeoh Teck Chye & Ors [1981] 2 MLJ 176
• R v Loveridge [1982] 76 Cr App Rep 125
• PP v Nordin Johan [1983] 2 MLJ 221
• Ooi Phaik Chuan v PP [1993] 1 CLJ 330

8. Witnesses making identification

(a) Corroboration directions

If identification evidence was of poor quality, there is a need for

supporting evidence.

(b) When do the Turnbull directions apply?

Where the identification evidence is of poor quality

• R v Turnbull [1977] 1 QB 224

• PP v Rangapula [1982] 1 MLJ 91
• Dato’ Mokhtar Hashim v PP [1983] 2 MLJ 232
• Yan Heng Fang v PP [1985] 2 MLJ 91
• PP v Chiong Cheng Wah [1988] 3 MLJ 56
Evidence 473

• Arumugam v PP [1998] 3 MLJ 73

• PP v Ho Jin Lock [1999] 3 CLJ 849
• Jaafar Ali v PP [1999] 1 CLJ 410
• PP v Richard Devadasan a/l Sabariah [2005] 3 MLJ 17
• PP v Nagathevan a/l Manoharan & 2 Ors [2009] 1 AMR 197
• Erivesto Anderson & Anor v Public Prosecutor [2009] 1 MLJ 593 FC
• Wong Soon Choon v PP [2016] 2 CLJ 807 (CA) – identification of
accused; failure to tender CCTV footage.
• Article: Akram [1989] 2 CLJ 245

9. Other interested witnesses

(a) Categories of witnesses requiring corroboration are not closed

• R v Kilbourne [1973] AC 729

(b) What are the corroboration directions?

• Teo Thin Chan v PP [1957] MLJ 184
• Balasingham v PP [1959] MLJ 193
• R v Prater [1960] 2 QB 464
• Tan Kheng Ann & Anor v PP [1965] 2 MLJ 108
• Lim Boon San v PP [1968] 2 MLJ 45
• R v Beck [1982] 1 All ER 807
• R v Spencer [1987] 2 All ER 298
• Sidek bin Ludan v PP [1995] 1 AMR 722
• PP v Cho Sing Koo & anor [2015] 4 CLJ 491 (CA)

10. Evidence which may amount to corroboration

(a) Statements repeated by witness himself (self-corroboration)

(b) Condition of victim/witness

Evidence 474

(c) Condition of accused

(d) Conduct of accused

(e) Identification made by witness

• PP v Loo Seng Yip [2005] 1 AMR 647

(f) DNA evidence

• PP v Syed Muhamad Faysal bin Syed Ibrahim [2004] 6 MLJ 303

• PP v Hanif Basree bin Abdul Rahman [2008] 3 MLJ 161

11. Statements made by witness -

(a) Sections 156, 157, 73A EA

(i) Section 156 EA provides that where it is intended to corroborate the

evidence of a witness as to any relevant fact, he may be asked
questions of other circumstances observed by him at or near to the
time or place at which such relevant fact occurred. Evidence of such
facts may be then given to corroborate the evidence of the witness
as to the fact in issue.

(ii) Section 157 EA provides that in order to corroborate the testimony

of a witness, any former statement made by him whether written or
verbal, on oath, or in ordinary conversation, relating to the same
fact at or about the time when the fact took place, or before any
authority legally competent to investigate the fact, may be proved.

(b) Cases which suggest that statements may be proved under section 157
EA to show corroboration

• R v Velayuthan [1935] MLJ 277

Evidence 475

• R v Koh Soon Poh [1935] MLJ 120

• Lim Baba v PP [1962] MLJ 201
• Rameshwar Kalyan Singh v State of Rajasthan AIR 1952 39 SC
• PP v Teo Eng Chan [1988] 1 MLJ 156
• PP v Mohamed Terang bin Amit [1999] 1 MLJ 154
• Liew Guan Eng v PP [2000] 2 AMR 1619
• Balachandran v PP [2005] 1 CLJ 85
• Francis Antonysamy v PP [2005] 3 MLJ 389

(c) Cases which show that corroboration in section 157 EA refers to

consistency and not corroboration in the ‘Baskerville’ sense
• Mohd Ali v PP [1962] MLJ 230
• Ah Mee v PP [1967] 1 MLJ 220
• Karthiyayani v Lee Seong Sin [1975] 1 MLJ 119
• PP v Chee Kon Fatt [1991] 3 CLJ 2564
• Aziz bin Muhamad Din v PP [1996] 5 MLJ 473
(Distinction made between complaint and statement)
• See also
o R v Whitehead [1929] 1 KB 99
o PP v Paneerselvan [1991] 1 MLJ 106
o Haji Husam b Hj Musa v Mohd Faisal bin Rohban Ahmad [2015]
1 CLJ 787 (COA)
✓ Articles: Paul [1990] 3 MLJ xci

12. Condition of victim / witness

• Liew Kim Yong v PP [1989] 3 MLJ 323

• R v Redpath [1962] 46 Cr App Rep
• Chong Chee Liong v PP [2008] 2 MLJ 797

13. Conduct of accused

• Dowse v AG [1961] MLJ 249

Evidence 476

• PP v Tan Tatt Eek [2005] 4 CLJ 460

14. Identification made by witness

• PP v Balwant Singh [1960] MLJ 264

• Meelamchan v PP [1962] MLJ 213
• PP v Basar [1965] MLJ 75
• PP v Mohamad Majid [1977] 1 MLJ 121
• Arumugam s/o Muthusamy v PP [1998] 3 MLJ 73
• PP v Syed Muhamad Faysal bin Syed Ibrahim [2004] 6 MLJ 303
• PP v Richard Devadasan Sabariah [2004] 4 CLJ 367
• Hanafi b Mat Hassan v PP [2006] 4 MLJ 134
• Ahmad Najib bin Aris v Pendakwa Raya [2009] 4 AMR 473

15. Unsworn statement of an accused

Weight to be given

• Mohd Abbas Danus Bakasan v PP [2006] 3 CLJ 880

• Nguyen Quoc Viet v PP [2016] 1 CLJ 365 (CA)

16. Credibility of witness

Trial Judge having audiovisual advantage

• Foo Sam Ming v Archi Environ Partnership [2004] 1 MLJ 449

• PP v Mohd Bandar Shah Bin Nordin & Anor [2008] 4 AMR 753
• PP v Cho Sing Koo & anor [2015] 4 CLJ 491 (CA)

17. Admissibility of evidence under section 265A of the Criminal

Procedure Code
Evidence 477

The new section 32A EA allows the admissibility in criminal proceedings of

evidence taken from a witness in accordance with section 265A of the Criminal
Procedure Code.

L. SIMILAR FACT EVIDENCE

1. Meaning

“Similar” to a fact in issue but, however, is unconnected to it.

2. Application in both civil and criminal law

(a) Civil cases

• Moode Music v De Wolfe [1976] Ch 119

• sections 11, 14, 15 EA

(b) Criminal cases

(i) Commmon law

• Specific purpose approach (the ‘Makin approach’)

o Makin AG for NSW (1894] AC 57
o King v Bond [1906] 2 KB 389
o R v Smith [1915] 11 App Rep 229
o R v Thompson [1918] AC 221
o Noor Mohd v King [1949] AC 192
o R v Straffen [1952] 2 QB 911
o R v Wilson [1973] Cr App Rep 169

• Probative value test (the ‘Boardman test’)

Evidence 478

o R v Boardman [1975] AC 421

o R v Scarrott [1977] 3 WLR 629
o R v Tricoglus [1977] Crim LR 284
o R v Barrington [1981] 1 All ER 1132
o R v P [1991] 3 All ER 337
o R v Mullen [1992] Crim LR 735
o R v Gurney [1994] Crim LR 116

(ii) Application of the ‘Similar Fact Evidence’ rule in Malaysia

• Specific purpose approach (the ‘Makin approach’)

o James v R [1936] MLJ 7
o Teo Koon Seng v R [1936] MLJ 9
o Yong Sam v PP (1955) 21 MLJ 131
o R v Raju [1953] MLJ 21
o Abubakar v R [1954] MLJ 67
o PP v Ang An An [1970] 1 MLJ 217
o PP v Veeran Kutty & Anor [1900] 3 MLJ 498
o Junaidi bin Abdullah v PP [1993] 3 MLJ 217
o Abdul Khalid bin Abdul Hamid v PP [1995] 1 MLJ 692
o PP v Md Alim [1998] 1 MLJ 260
o PP v Dato’ Seri Anwar Ibrahim (No. 3) [1999] 2 MLJ 1

• Probative value test (the ‘Boardman approach’)

o PP v Veeran Kutty & Anor [1990] 3 MLJ 498
o Junaidi bin Abdullah v PP [1993] 3 MLJ 217
o Abdul Khalid bin Abdul Hamid v PP [1995] 1 MLJ 692
o Tan Meng Jee v PP [1996] 2 SLR 422, [1998] 1 MLJ 537
o Juraimi Bin Husin v PP [1998] 1 MLJ 537
o Lee Kwan Peng v PP [1997] 3 SLR 278
o Msimanga Lesaly v PP [2005] 4 MLJ 314
Evidence 479

o Azahan Bin Mohd Aminallah v PP [2005] 5 MLJ 334

• Section 11 EA

Provides that a fact is relevant when by itself or in connection

with other facts it makes the existence or non-existence of any
fact in issue or relevant fact highly probable or improbable.

o R v Pharbudas [1874] 11 BHC 90

o QE v Vajiran [1892] 16 Bom 414
o R v Panchudas [1920] 47 Cal 671
o Htin Gyaw v Emp AIR 1928 R 118
o R v Raju [1953] MLJ 21
o Ranggayan v Junasimuthu AIR 1956 M 226
o Junaidi bin Abdullah v PP [1993] 3 MLJ 217
o Abdul Khalid bin Abdul Hamid v PP [1995] 1 MLJ 629
✓ Articles: Pinsler J [1989] 2 MLJ 1xxxi
Abu Bakar Munir [1994] 3 MLJ xxix
P Nair [1991] JMCL Col 18 page171
Norbani Mohamed Nazeri [1994] 3 MLJ ccxxi

• Section 14

Provides that facts showing the existence of any state of mind

or any state of body or bodily feeling are relevant when the
existence of any such state of mind or body or bodily feeling is
in issue or relevant.

o James v R [1936] MLJ 7

o R v Raju [1953] MLJ 21
o Junaidi bin Abdullah v PP [1993] 3 MLJ 217
Evidence 480

• Section 15

Provides that when there is a question whether an act was

accidental or intentional or done with a particular knowledge or
intention, the fact that the act formed part of a series of similar
occurrences, in each of which the person doing the act was
concerned, is relevant.

o James v R [1936] MLJ 7

o R v Raju [1953] MLJ 21
o PP v Ang An An [1970] 1 MLJ 217
o Wong Yew Ming v PP [1991] 1 MLJ 31
o Junaidi bin Abdullah v PP [1993] 3 MLJ 217
o PP v Mohamad Fairus bin Omar [1998] 5 MLJ 72
o Mahadeva Krisanon v Teja Singh [2011] 1 CLJ 1016

M. CHARACTER

1. Meaning

(a) The word “character” includes both reputation and disposition but except
as provided in section 54 EA, evidence may be given only of general
reputation and general disposition, and not of particular acts by which
reputation or disposition is shown.

(b) Explanation to Section 55 EA

• Section 55 Explanation provides that in civil cases the fact that the
character of any person is such as to affect the amount of damages
which he ought to receive is relevant.

2. What amounts to bad character?

Evidence 481

• Girdari Lall v PP [1946] MLJ 87

• Loke Soor Har v PP [1954] MLJ 149
• Balasingham v PP [1959] MLJ 193
• Lim Kong v PP [1962] MLJ 195
• Wong Foh Hin v PP [1964] 30 MLJ 149
• Palldas v PP [1988] 1 CLJ 661
• PP v Choo Chuan Wang [1992] 1 CLJ 1242
• Kiew Foo Mui v PP [1995] 3 MLJ 505

3. Admissibility in civil cases

• Sections 52 and 55 EA

Section 52 EA states that in civil cases the fact that the character of any
person concerned is such as to render probable or improbable any
conduct imputed to him is irrelevant except in so far as such character
appears from facts otherwise relevant. Section 55 EA (see above).

o DP Vijandran v Karpal Singh & Ors [2000] 3 MLJ 22

4. Admissibility in criminal cases

• Sections 53, 54 EA
• Section 53 EA provides that in criminal proceedings the fact that the
person accused is of good character is relevant.

5. Application of section 54 EA

(a) section 54(1) EA

• The fact that an accused person has a bad character is irrelevant

unless evidence has been given that he has a good character.
Evidence 482

o Wong Foh Hin v PP [1964] MLJ 149

o PP v Choo Chuan Wang [1992] 2 CLJ 1242
o Kiew Foo Mui v PP [1995] 3 MLJ 503
o Sharma Kumari a/p Oam Prakash v PP [2000] 6 MLJ 282

(b) section 54(2) EA

(i) An accused shall not be asked, and if asked shall not be required to
answer questions:

• tending to show that he has committed other offences;

• tending to show that he has been convicted of other offences;

• tending to show that he has been charged with any other

offences; and

• tending to show that he is of bad character. He may however,

be asked any of those questions if the proof that he has
committed or convicted of that offence is admissible to show
he is guilty of the offence that he is charged for; he has asked
questions of the witnesses for the prosecution with a view to
establish his good character; or given evidence of his good
character or cast imputations on the character of the
prosecution or he has given evidence against any other person
charges with the same offence.
o Maxwell v DPP [1935] AC 309
o Stirland v DPP [1944] AC 315
o R v Butterwasser [1948] 1 KB 4
o Jones v DPP [1962] AC 635

(ii) paragraph (a)

o King v Chitson [1909] 2 KB 945

Evidence 483

o R v Cokar [1960] 2 QB 207

(iii) paragraph (b)

o R v Rouse [1904] 1 KB 184

o R v Rappolt [1911] 6 Cr App R 156
o R v Biggin [1920] KB 213
o R v Winfield [1939] 4 All ER 164
o R v Turner [1944] 1 KB 463
o R v Butterwasser [1948] 1 KB 4
o Selvey v DPP [1970] AC 304
o R v Bishop [1975] QB 207
o R v Lee [1975] 62 Cr App R 33
o R v Britzman [1983] 1 All ER 369

(iv) paragraph (c)

o Murdoch v Taylor [1965] AC 574

o R v Lovett [1973] 1 All ER 744
o R v Bruce [1975] 1 WLR 1252
o Commissioner of Police v Hills [1978] 3 WLR 423
o R v Varley [1981] 2 All ER 519

(c) Also see impeachment of witnesses.

N. OPINION

1. Types of opinion
(a) Expert - sections 45-46, 51 EA

(i) Section 45 EA provides that when the court has to form an opinion
on a matter involving certain scientific information, the opinion of an
expert on those matters are relevant facts.
Evidence 484

(ii) Section 46 EA provides that facts not otherwise relevant are relevant
if they support or are inconsistent with the opinions of experts when
such opinions are relevant.

(iii) Section 51 EA provides that whenever the opinion of any living

person is relevant, the grounds on which his opinion is based are
also relevant.

(b) Non-expert – sections 47-51 EA

• These sections deal with the opinions of persons who are not
necessary experts but whose opinion are relevant facts because of
their acquaintance or familiarity with or intimate knowledge or
information as to certain matters, for eg. Handwriting, custom or
relationship.
o PP v Chia Leong Foo [2000] 4 CLJ 649

2. Expert opinion

(a) Section 45 EA

• Sivagami Achi v Ramanathan Chettiar [1959] MLJ 221

• Teng Kuan Seng v PP [1960] MLJ 225
• Kong Nen Siew v Lim Siew Hong [1971] 1 MLJ 262
• Chandrasekara v PP [1971] 1 MLJ 153
• PP v Forster [1988] 2 MLJ 594
• Boonsom Boonyamit v Adorna Properties Sdn Bhd [1995] 2 MLJ 863
• Beh Lee Liang v Chew Sah Suak [1996] 1 CLJ 173
• PP v Sam Hong Choy [1996] 1 CLJ 514
• PP v Saad bin Mat Takraw [1998] 3 MLJ 784
• Foo Fio Na v Hospital Assunta [1999] 6 MLJ 738
Evidence 485

• Asean Securities Paper Mills v CGU Insurance [2007] 2 MLJ 301

• Nik Mahmood Nik Mat v Chew Kam Leong [2011] 1 LNS 202
• Pathmanabhan Nalliannen v PP & other Appeals [2017] 4 CLJ 137
(FC)
(b) Must the expert be professionally qualified?

“while the expert must be ‘skilled’, he need not be so by special study, he

may be so by experience; and the fact that he has not acquired his
knowledge professionally goes merely to weight and not to admissibility.”

per Suffian LP in PP v Muhamed bin Sulaiman [1982] 2 MLJ 320

• R v Lim Chin Shang [1957] MLJ 125

• Kong Nen Siew v Lim Siew Hong [1971] 2 MLJ 262
• PP v Muhamed bin Sulaiman [1982] 2 MLJ 320
• Dato’ Mokhtar Hashim v PP [1983] 2 MLJ 232
• PP v Sam Hong Choy [1996] 1 CLJ 574
• PP v Mohamed Terang bin Amit [1999] 1 MLJ 154

(c) How should the expert be introduced in court?

“He should first state his qualifications as an expert. He should then state
that he has given evidence as an expert in such cases and that his
evidence has been accepted by the courts”,

per Hashim J in Wong Chop Saow v PP [ 1965] 1 MLJ 247

• Wong Chop Saow v PP [1965] MLJ 247

• Junaidi Abdullah v PP [1983] 3 MLJ 217
• PP v Chong Wei Kian [1990] 3 MLJ 165
• Bukit Mertajam [1992] 1 MLJ 1
• PP v Lin Lian Chen [1992] 2 MLJ 561
• Khoo Hi Chiang v PP [1994] 1 MLJ 265
• Kumaraguru v PP [1994] 1 MLJ 254
• Balachandran v PP [2005] 1 CLJ 85
• Dalip Kaur v Pegawai Polis Daerah, Balai Polis Daerah Bukit
Evidence 486

Mertajam [1992] 1 MLJ 1

• PP v Seow Wei Hoong [2008] 3 AMR 277

(d) Role of the expert

“But, except on purely scientific issues, expert evidence is to be used by

the court for the purpose of assisting rather than compelling the
formulation of the ultimate judgements”

per Raja Azlan Shah CJ (Malaya) (as his Highness then was) in Wong
Swee Chin v PP [1981] 1 MLJ 212

• Ong Chan Tow v R [1963] MLJ 160

• Wong Swee Chin v PP [1981] 1 MLJ 212

(e) Need for expert testimony

• Arises in cases where the court is not in a position to form a correct

judgment without the help of persons who have acquired special skill
or experience on a particular subject.
o Ong Chan Tow v R [1963] MLJ 160
o Lowery v R [1974] AC 85
o R v Turner [1975] QB 834

• The Court will fall into error to accept a challenge to a deceased

signature without expert opinion by a handwriting expert.

• Leong Yeu Moi (F) v Neo Ai Si (F) [2019] 6 MLJ 622

• The signature or handwriting in the document alleged to be in that

person’s handwriting shall be proved to be in his handwriting
through:
Evidence 487

▪ direct evidence of a witness who says he saw the actual

signing take place (s60(1)(a) Evidence Act 1950);

▪ evidence of an attesting witness as prescribed by s68 Evidence

Act 1950.

▪ evidence by a ‘person acquainted’ with the signature of the

person (s47 Evidence Act 1950).

▪ evidence of the handwriting expert (s45 Evidence Act 1950).

▪ comparison by the court, of the writing or signature in question

with other genuine signature/documents, (s73(2) Evidence Act
1950). (refer: Vishnu Telagan v Timbalan Menteri Dalam
Negeri, Malaysia & Ors (2019) 9 CLJ 177)

• Sembagavally a/p Murugason v Tee Seng Hock [2020] 7

MLJ 1

(f) Conflicting expert opinions;

• The court has a right to prefer one opinion over the other.
o CLR v Alagappa Chettiar [1971] 1 MLJ 43
o Dato’ Mokhtar Hashim v PP [1983] 2 MLJ 232
o Singapore Finance Ltd v Lim Kah Ngam [1984] 2 MLJ 202
o PP v Ang Soon Huat [1991] 1 MLJ 1

(g) Basis of expert’s opinion

• The expert must provide his reasons for his opinion and the court
must evaluate these reasons before coming to a finding.
Evidence 488

o Sim Ah Oh v PP [1962] MLJ 42

o Pacific Tin Consolidated Corp v Hoon Wee Thim [1967] 2 MLJ
35
o UABB v Tai Soon Heng Construction [1993] 1 MLJ 182
o PP v Alcontra [1993] 1 MLJ 40
o Balachandran v PP [2005] 1 CLJ 85

(h) Evaluation of expert evidence

• Lim Tai Ming & Sons Credit Sdn Bhd v Lim Tuck Thein [2001] 1 MLJ
57
• Samundee Devan a/l Krishnan Muthu v PP [2009] 1 MLJ 697
• Dato Seri Anwar Ibrahim v PP & another appeal [2015] 2 CLJ 145
(FC)

(i) Failure to explain ground of opinion

o Hanafi b Mat Hassan v PP [2006] 4 MLJ 134

(j) Whether expert evidence can be displaced by circumstantial evidence

o Asean Securities Paper Mills Sdn Bhd v CGU Insurance Bhd [2007] 2
MLJ 301

(k) When is an expert report admissible?

o Low Soo Song v PP [2008] 1 CLJ 433

▪ Article: Harcharan Singh Tara - Expert Evidence in Civil & Criminal
Cases [1995] 2 MLJ xlv

O. JUDICIAL NOTICE

1. Sections 56-57 EA
Evidence 489

• Section 56 EA provides that no fact of which the court will take

judicial notice need be proved.
o Tony Pua Kiam Wee v Dato’ Sri Mohd Najib bin Tun Hj Abdul
Razak [2018] 4 MLJ 192

• Section 57 EA enumerates a list of matters of which the court must

take judicial notice of. The list however is not exhaustive.
o Ngai Law Suia v Low Chee Neo (1921) 14 SSLR 35
o Low Moh v PP [1954] MLJ 14
o Lim Kong v PP [1962] MLJ 195
o Lee Weng Seng v PP [1978] 1 MLJ 168
o Pang Ah Chee v Chong Kwee Sang [1985] 1 MLJ 153
o Pembangunan Maha Murni v Jururus Ladang Sdn Bhd [1986] 2
MLJ 30
o Punca Klasik Sdn Bhd v Liza James & Ors [1996] 3 CLJ 93

‘When a court takes judicial notice of a fact, it simply means that the
court declares that it will find that the fact exists’.
o Sembagavally a/p Murugason v Tee Seng Hock [2020] 7 MLJ 1

2. Section 58 EA

• Provides that certain facts admitted need not be proved. These are where
the parties or their agents make admissions at the hearing, make
admissions in writing before the hearing and make admissions in
pleadings.
o Yong Pak Yong v PP [1959] MLJ 176
o Sivagami v Ramanathan Chettiar [1959] MLJ 221
o Jaafar Shaari & Siti Jama Hashim v Tan Lip Eng & Anor [1997] 4 CLJ
509
o Re Gun Soon Thin [1997] 2 CLJ Supp 53
Evidence 490

o PP v Saad bin Mat Takraw [1998] 3 MLJ 784

o PP v Tan Sri Muhammad Taib [1999] 6 CLJ 135
o Malaysia Building Society Bhd v Univein Sdn Bhd [2003] 5 MLJ 394
o Lum Choon Realty Sdn Bhd v Perwira Habib Bank Malaysia Bhd
[2003] 4 MLJ 409
o Peninsular Concord Sdn Bhd v Datuk M Kayveas & Anor [2011] 7 CLJ
978

P. ADMISSIBILITY OF FACT IN CRIMINAL CASES, ETC

• Section 73AA EA provides for the admissibility of fact in criminal cases

which parties have agreed to admit at the trial or which the parties have
agreed to admit before the trial in writing.

Q. ILLEGALLY OBTAINED EVIDENCE

• Kuruma v R [1955] AC 197

• R v Payne [1963] 1 All ER 848
• Cheng Swee Tiang v PP [1964] MLJ 291
• R v Sang [1980] AC 802
• Ramli Kechik v PP [1986] 2 MLJ 33
• Goi Ching Ang v PP [1999] 1 MLJ 507
• Wako Merchant Bank (Singapore) Ltd v Lim Lean Heng & Ors [2000] MLJ
401
• Re Mohamed Ezam [2000] 3 MLJ 372]
• Hanafi b Mat Hassan v PP [2006] 4 MLJ 136
• Aizuddin Syah bin Ahmad v Public Prosecutor [2018] 5 MLJ 220

R. IMPROPER ADMISSION AND REJECTION OF EVIDENCE

• Section 167 EA
Evidence 491

Provides that any improper admission or rejection of evidence is no

ground for a new trial or reversal of any decision in any case, if it appears
to the court that, independently of the evidence objected to and admitted,
there was sufficient evidence to justify the decision, or that if the rejected
evidence had been received, it ought not to have varied the decision.

o Lim Kim Chuan v PP [1948] 14 MLJ 117

o Semtex Ltd v Gladstone [1954] 2 All ER 206
o Wong Kok Keong v R [1955] MLJ 13
o Shanghara Singh v PP [1967] 1 MLJ 15
o Krishnan v PP [1987] 1 MLJ 292
o Lee Weng Sang v PP [1978] 1 MLJ 168
o Mohd Affandi Bin Abdul Rahman & Anor v PP [1998] 1 MLJ 537
o Dato Hj Husam Hj Musa v Mohd Faisal Rohban Ahmad [2015] 1 CLJ
787D

S. ADMISSIBILITY OF EVIDENCE OBTAINED UNDER MUTUAL

ASSISTANCE IN CRIMINAL MATTERS REQUESTS

(a) Section 90D EA states that the Chapter shall apply for the purpose of
determining the admissibility of evidence obtained pursuant to a request
made under the Mutual Assistance in Criminal Matters Act 2002 (Act 621)

(b) Section 90E EA provides inter alia, for any testimony, statement,
deposition, together with any documents or thing exhibited or annexed to
such statement or deposition that is received by the Attorney General
pursuant to a request made under Act 621.

In respect of the criminal matter, shall on its production be admitted as

evidence without further proof of any fact stated therein.
Evidence 492

(c) Section 90F EA provides that a certificate by the Attorney General or

anyone authorized by him to make such a certificate certifying that any
testimony, statement or deposition to which such certificate is attached,
together with any document or thing exhibited or annexed thereto, if any,
has been received by the Attorney General pursuant to a request made
under Act 621 in respect of any criminal matter referred to in the
certificate, shall on its production be conclusive evidence of the facts
contained therein in the certificate.

ooOoo
 PROFESSIONAL
PRACTICE

© All rights reserved 2020

No part of this outline may be reproduced without the permission of the Qualifying Board, Malaysia
Professional Practice 493

PREFACE

A. INTRODUCTION

1. The subject Professional Practice which is the mainstay for a legal

practitioner covers a wide spectrum of the areas of substantive law.

2. Candidates are expected to have a good practical and working knowledge and
understanding of the duties, responsibilities and liabilities of an advocate and
solicitor with reference to his profession, the courts and the public.

3. Candidates are expected to have a thorough understanding and practical

knowledge of land dealings and conveyance which can be the crux of legal
practice.

4. In recent times there has been contentious litigation in the field of probate,
bankruptcy and winding-up. Candidates are expected to have a good working
and practical understanding of the subject matter.

5. Candidates are required to familiarise themselves with the statutory provisions

and the relevant case authorities applicable. For the examination, candidates
are expected to “think out of the box” and make a conscious effort to
understand, analyse and rationalize the issues of legal practice before bringing
forth their conclusions.

6. Candidates are to bear in mind that this outline is only a guide on the subject.
They are expected to explore further on their own on what they have learnt
and to further update themselves with all recent development in the areas of
law so as to be equipped for legal practice.
Professional Practice 494

A. SALIENT STATUTES

1. Legal Profession

(a) Legal Profession Act 1976 (Act 166)

(b) Rules of Court 2012 (NOTE: ROC repeals the Rules of the High Court
1980)

2. Land law and Conveyancing

(a) Civil Law Act 1956 (Act 67)
(b) National Land Code 1965
(c) National Land Code (Penang & Malacca Titles) Act 1963 (Act 518)
(d) Land Acquisition Act 1960 (Act 486)
(e) Malay Reservations Enactment (Cap 142)
(f) Specific Relief Act 1950 (Act 137)
(g) Strata Titles Act 1985 (Act 318)
(h) Sarawak Land Code Cap 81
(i) Sabah Land Ordinance Cap 68
(j) Housing Developers (Control and Licensing) Act 1966 (Act 118) &
Regulations

3. Law of Bankruptcy and Winding-up

(a) Insolvency Act 1967 (Act 360)

(b) Insolvency Rules 2017

(c) Companies Winding-up: Companies Act 2016 (Act 777)

(d) Companies (Winding-Up) Rules 1972

4. Probate and Administration of Estates

(a) Probate and Administration Act 1959 (Act 97)

Professional Practice 495

(b) Small Estates (Distribution) Act 1955 (Act 98)

(c) Public Trust Corporation Act 1995) (Act 532)

(d) Estate Duty Enactment 1941 (F.M.S. No. 7 of 1941)

(e) Rules of Court 2012

2. TEXTBOOKS AND REFERENCES

1. Legal Profession

(a) Faiza Tamby Chik, Ethics and the Lawyer, INSAF Vol xxi No 2 September
1990

(b) Datuk Harun M Hashim, Preparation of Law Students for Law Practice:
Views of a Judge [1983] 1 CLJ

(c) Tan Sri Dato' Harun Hashim, Ethics in the Legal Profession - Now and in
the Future [1993] 2 MLJ lxxxi.

(d) T P B Menon, Legal Profession in Singapore: Code of Ethics and

Disciplinary Procedures [1981] 2 MLJ v

(e) Professional Ethics and Duties of Lawyers (1984) Vol 17 No INSAF 18

(f) Manjit Singh Dhillon, The Legal Profession - Back to the Future [1992] 1
MLJ lxxxi

(g) S Sothi Rachagan, The Role of Lawyers and the Bar Council in Society
[1995] 2 MLJ lxxiii

(h) Lord Alexander of Weedon QC, The Role of the Advocate in our Society
Professional Practice 496

[1992] 1 MLJ xxxvii

(i) S Sothi Rachagan, The Role of Lawyers and the Bar Council in Society
[1995] 2 MLJ xxix

(j) G.F. Nelson - The Fortress of Lawyer - Immunity is Levelled in England At

Last by the House of Lords [2000] Vol. 29 INSAF, pg 19

(k) Rt Hon. Sir Robert Megarry, Law as Taught and as Practiced (1981) HKLJ
152

(l) The Rt. Hon. Lord Taylor, Lord Chief Justice of England: The Judiciary In
The Nineties (1993) 3 CLJ xxiii

(m) Jim Cameron: Lawyers in the Public Eye (1995) 4 CLJ lxv

(n) Dr. Hussin Ab. Rahman Al-Amudi, Solicitor's Liability (1996) 1 CLJ xlvii

(o) Cyrus V Das, The Legal Structure Of Law Firms: The Imminent Changes
(2002) 2 CLJ i

2. Land law and Conveyancing

(a) Teo KS & Khaw LT, Land Law in Malaysia: Cases and Commentary, 3rd
Edition, LexisNexis, (2012)

(b) Wong DSY, Tenure and Land Dealings in the Malay States (1975),
Singapore University Press, Singapore

(c) Ainul Jaria Maidin & Others, Principles of Malaysian Land Law, Lexis Nexis
(2008)
Professional Practice 497

(d) Sihombing J, National Land Code – A Commentary, Malayan Law Journal

(2000)

(e) Innes JR, A Treatise on Registration of Title in the FMS (Government

Printing Office, Kuala Lumpur - 1913)

(f) Hinde GW, DW McMorland and PBA Sim, Land Law, Vol 1 & 2
(Butterworths, Wellington - 1978)

(g) Sinnadurai V, Sale and Purchase of Real Property in Malaysia

(Butterworths, Singapore - 1984)

(h) Stein RT & Stone MA, Torrens Title (Butterworths, Sydney - 1991)

(i) Whalan DJ, The Torrens System in Australia (Law Book, Sydney - 1982)

(j) Teo Keang Sood, Strata Titles in Malaysia 5th Edition (lexisNexis Malaysia-
2015) and 6th Edition (forthcoming 2020)

(k) Sihombing J, National Land Code, A Commentary, 2019 Desk Edition,

(LexisNexis) – 2019

3. Law of Bankruptcy and Winding-up

(a) Bankruptcy Handbook: MLJ Handbook series

(b) Williams and Muir Hunter on Bankruptcy 19th Edition

(c) Bankruptcy Law and Practice by G H L Friedman

(d) Sales' The Law Relating to Bankruptcy, Liquidations and Receiverships by

Charles A Sales

(e) Handbook on Bankruptcy Law and Practice by Ivan Crutchly

(f) Modern Company Law by Gower
Professional Practice 498

(g) Company Law by Walter Woon - Chapter 20

(h) Lindley on Partnership - Chapter on Bankruptcy

(i) Halsbury's Laws of Malaysia - Vol 6 - Bankruptcy and Companies Winding-

up

(j) Law and Practice of Corporate Insolvency in Malaysia – Chapters 6-8 and
12

4. Probate and Administration of Estates

(a) Administration of Estate Handbook (2nd ed.), LexisNexis/Malayan Law

Journal (2006)

(b) Probate Handbook - LexisNexis (2007)

(c) Probate and Administration in Singapore & Malaysia: Law and Practice by
G. Raman

(d) Administration of Estates in Malaysia, Law and Procedure by Akmal

Hidayah Halim, Sweet & Maxwell, 2018

3. EXAMINATION

1. Candidates are to take note of the following:

(a) This paper has two sections, namely Section A and Section B.
(b) Section A comprises the following:

(i) Advocacy and Duties of Counsel

(ii) Ethics of the Legal Profession

Professional Practice 499

(c) Section B comprises the following:

(i) Land Law and Conveyancing

(ii) Law of Bankruptcy and Winding-up

(iii) Probate and Administration of Estates

2. The examination paper contains FOUR (4) questions on the topics in Section A
and FIVE (5) questions on the topics in Section B.

3. Candidates are required to answer FIVE (5) questions. TWO (2)

questions must be chosen from Section A and THREE (3) questions
must be chosen from Section B.

4. Candidates are allowed to refer to the Legal Profession Act 1976,

Insolvency Act 1967 (including the Rules) and National Land Code
1965, which will be provided during the examination. Candidates are not
allowed to bring into the examination hall their own copies of the said statutes
or any other statutes not specified here.

oo0oo
Professional Practice 500

SECTION A

PART I

ADVOCACY AND DUTIES OF COUNSEL

1. Duties of Counsel - To Client and the Court/The Barrister's Immunity

• The Honest Lawyer by Lord Denning

• The Duty of the Advocate by Richard Du Cann QC in The Art of the

Advocate 1980 Ed (Penguin)

• The Law of Advocates and Solicitors in Singapore and West Malaysia by

Tan Yock Lin (Malayan Law Journal) 2nd Edn 1998

• Liability Without Reliance - Solicitors and Disappointed Beneficiaries by

Joanna Rasamalar Jeremiah [1994] 1 MLJ cxxxvii

o Jackson & Powell on Professional Negligence (note

Solicitor/Barrister)
o Ex Parte Clyne (1962) SR (NSW) 436
o Rondel v Worsley [1967] 3 ALL ER 993
o Beevis v Dawson [1956] 3 ALL ER 837, 839
o Meek v Fleming [1961] 3 ALL ER 148
o Glebe Sugar Refining Co v Greenock Port and Harbours Trustees
(1921) 2 AC 85
o Tombling v Universal Bulb Co (1951) 2 TLR 289
o Mercantile Credit Co Ltd v Hamblin [1964] 3 ALL ER 592
o R v Turner [1970] 2 ALL ER 281
o R v Banks [1916] 2 KB 621
o New Tuck Shen v PP [1982] 1 MLJ 27
o Tuckiar v The King (1934) 52 CLR 335
o Roy v Prior [1971] AC 470
Professional Practice 501

o Charles Rajah v Sykt STM (1992) 1 AMR 263

o Re JLP Harris (1953) 19 MLJ 161
o Rajasooria v Disciplinary Committee (1955) 21 MLJ 65
o Re An Advocate & Solicitor (1962) 28 MAJ 125
o Yap Ban Tick v Standard Chartered Bank [1995] 3 MAJ 401
o Wing Sin Cong & Anoa v Bhagwan Singh & Anoa [1993] 3 MAJ 679
o Samat Din & Partners v Bank Pembangunan (M) Bhd [1997] 3 MAJ
542
o AKB Air conditioning & Electrical Sdn Bhd v Hew Foo Onn & Anoa
[2002] 5 MAJ 391 - Obligations of counsel - Defendant did not file
affidavit in reply - Counsel for Defendant left plaintiffs application to
Courts discretion - Counsel must assist court by being candour
courteous and fair - whether defendants counsel should have left
plaintiff application to courts discretion.

o Loh Bee Tuan v Shing Yin Construction (Kota Kinabalu) Sdn Bhd &
Ors [2002] 2 MAJ 532 - Duty to opposite - Developers lawyer failed
to advise purchaser on risk of heavily encumbered property - Plaintiff
unrepresented - Implied retainer, whether fourth defendant acted
for plaintiff - Whether breach of duty of care to plaintiff

o Mohamed Yusop Abdul Wahab v American Express (M) Sdn Bhd

[2002] 7 CLJ 81 (HC) -Whether any duty of care owed by solicitor to
opposite party.

o Articles

▪ Elevation of Legal Professional Privilege to the Pedestal of

Super Stature by the English and Australian Courts - by
Professor Dr. Mohd Akram Shair Mohamed - [1997] 2 CLJ xix
▪ Solicitors' Liability [1996] 1 CLJ x1vii by Dr Hussin Ab Rahman
Al-Amudi
Professional Practice 502

2. Counsel's Liability in Negligence for Conduct of a Case

• Rondel v Worsley [1967] 3 ALL ER 993
• Abraham v Jutsun [1963] 2 ALL ER 402
• Saif Ali v Mitchell [1978] 3 ALL ER 1033
• Barnett v Chelsea & Kensington Hospital Management Committee [1968]
1 ALL ER 1068
• Miranda v Khoo Yew Boon [1968] 1 MAJ 161
• Majid v Muthusamy [1968] 2 MAJ 89

• United Indo-Singapura Corporation Pte. Ltd. v Foo See Juan & Anoa
[1985] 2 M.L.J 11
Failure to make known contents of letter to clients - Whether solicitors
liable - Limitation - Striking out amended writ and statement of
claim - Land Acquisition Act (Cap. 272), Whether negligent in acting for
purchasers in purchase of property - Compulsory acquisition - Claim for
damages by clients against solicitors.
• Wilsher v Essex Area Health Authority [1988] 1 ALL ER 860
• Somasundaram v M Julius Melchoir & Co [1989] 1 All ER 129
• Munning & Anoa v The Hydro-Electric Commission 125 C.L.R. 1
• Wong Sing Chong & Anor v Bhagwan Singh & Anor [1993] 3 MLJ 679
• Anthony Ting Chio Pang v Wing Bing Seng [1997] 2 CLJ 831
• Ali bin Jais v Linton Albert & Anoa [1999] 6 MAJ 304, [1999] 4 CLJ 167 -
failure to file Memorandum of Appeal within time
• Wong Song & Ors v Hiap Lee Manufacturing Industries Sdn Bhd [1998] 1
CLJ 1001
• Syarikat Siew Teck Hwa Realty & Development Sdn Bhd v Malek & Joseph
Au [1999] 5 MLJ 588 - Failure to appear on Appeal
• Perwira Habib Bank (M) Bhd v Megat Najmuddin bin Megat Khas & Ors
[1999] 5 MLJ 334
• Fong Maun Yee & Anor v Yoong Weng Ho Robert [1997] 2 SLR 297
• Guan Ming Hardware & Engineering Pte Ltd v Chong Yew & Partners &
Anor [1996] 2 SLR 621
Professional Practice 503

• Arthur (JS) Hall & Co v Simons [1999] 3 WLR 873

• Henderson & Ors v Merrett Syndicates Ltd & Ors [1994] 3 ALL ER 506
• Lim Soh Wah & Anor v Wong Sin Chong & Anor [2001] 2 CLJ 344

• Mohd Nor Dagang Sdn Bhd v Tetuan Mohd Yusoff Endut & Associates
[2001] 2 CLJ 364 - Counsel failed to inform client of hearing date

• Megat Najmuddin bin Megat Khas & Ors v Perwira Habib Bank Malaysia
Berhad [2003] 4 MLJ 65 - Solicitors advised that a lien holders' caveat
would be sufficient security for a loan - Caveat held invalid for want of
consent of registered proprietor - Whether solicitors ought to be held
liable for loss.

• Tetuan Bakar & Partners v Malaysia National Insurance Bhd & Ors [2010]
4 MLJ 493 - Legal Profession - Advocates and Solicitors - Professional
negligence- Insurance coverage against civil liability - Malaysian Bar
Professional Indemnity Insurance Scheme - Indemnity limit RM2m in first
term of insurance extended to RM7m for second and third terms-
Professional negligence during currency of first term- Dispute on quantum
of indemnity

3. Summary Jurisdiction of the Courts Over Solicitors and Enforcement

of Undertakings

• Myers v Elman [1939] 4 ALL ER 484

• Brenden v Spiro [1937] 2 ALL ER 4 96
• Syarikat Jengka Sdn Bhd v Tri-Trade Properties (M) Sdn Bhd & Anor
[1988] 3 MLJ 163
• Keith Sellar v Lee Kwang [1980] 2 MLJ 191 FC
• Au Kong Weng v Bar Committee Pahang [1980] 2 MLJ 89
• United Mining & Finance Corpn v Beecher [1910] 2 KB 296
• Seah Choon Chye v Saraswathy Devi [1971] I MLJ 112
• T Damodaran v Choe Kuan Him [1979] 2 MLJ 267 PC
• Oriental Bank v Razak Rouse [1986] 1 MLJ 509
Professional Practice 504

• Geoffrey Silver & Drake v Thomas Anthony Baines [1971] 1 QB 396

• Tunku Ismail v Tetuan Hisham, Sobri & Kadir [1989] 2 MLJ 489
• Hastingwood Property Ltd v Saunders Bearman Anselm (a firm) [1990] 3
All ER 107
• PP v Vengadasalam [1990] 1 MLJ 507
• Saminadhen v Khan [1992] 1 All ER 963
• Wee Choo Keong v PP [1990] 2 MLJ 239
• Madam Packiam Ramalingam v Badan Peguam Malaysia [2000] 1 MLJ 151
[1999] 1 CLJ 804
• Parasuraman Kuppan v Sazali Md Akhir & Anor [1997] 4 CLJ Supp 62
• Bank Kerjasama Rakyat Malaysia Bhd v Tetuan Haranay, Roni & Anikay &
Ors [1999] 1 CLJ 569, [1999] 5 MLJ 199
• Khaw Cheng Bok v John Khoo Boo Lai [2003] 5 AMR 12
• Tetuan Kumar Jaspal Quah & Aishah v Far Legion Sdn Bhd & Ors [2007] 3
MLJ 305
• Chase Perdana Sdn Bhd (formerly known as Chew Piau Bhd) v CIMB Bank
Bhd [2010] 1 MLJ 685 HC
• Tan Kau Kiah @ Tan Ching Hai v Tetuan Teh Kim Teh, Salina & Co (a
firm) & Anor [2010] 3 MLJ 569 - Legal Profession - Solicitor's undertaking
- Express undertaking by first respondent to comply with arbitral award or
court order - Whether first respondent was in breach of any undertaking
after arbitral award was made - Whether first respondent was right to
hold on to documents of title as stakeholder solicitors in the face of
pending applications by appellant and second respondent - Whether
arbitration award final and binding - Legal Profession - Solicitors –
Stakeholders - Express undertaking to return documents held as
stakeholders upon arbitral award or court order

➢ Whether bound by undertaking

o Semenda Sdn Bhd & Anor v CD Anugerah Sdn Bhd & Anor - [2010]
4 MLJ 157 - Legal Profession - Solicitor's undertaking - Construction
Professional Practice 505

of undertaking - Undertaking for release of documents before full

payment of purchase price - Whether solicitor could be held
responsible for undertaking - Whether undertaking made in personal
capacity

4. Extent of Counsel's Authority

• Tan Lian Hong v Min Ngai Knitting Factory [1974] 1 MLJ 76

• Scott & English v Yek Toh Ming [1985] 1 MLJ 451
• Yong & Co v Wee [1984] 2 MLJ 3 9 FC
• Carl Zeiss Stiftung [1967] 1 AC 853
• Neale v Gordon Lennox [1902] AC 465, 473
• Marsden v Marsden [1972] 2 All ER 1162
• S Pakianathan v R K Stallard [1979] 2 MLJ 251
• Yap Chee Meng v Ajinomoto (M) Bhd [1978] 2 MLJ 249
• Yeo Gek Liang v Alice Wee [1979] 1 MLJ 213
• Waugh v HB Clifford & Sons Ltd [1982] 1 AlL ER 1095
• Yap Cheng Kee v Ow Giam Eng [1977] 1 MLJ 177
• Langdale v Danby [1982] 3 ALL ER 129 HL
• Newland Enterprise v Santa Arona [1988] 2 MLJ 246
• William Jacks etc Bhd v Chemquip etc Bhd [1991] 2 MLJ 555
• Sundram v Arujunan & Anor [1994] 3 MLJ 361 SC
• Teoh Yoon Huwah & Menteri Hal Ehwal Dalam Negeri & Ors [1993] 1 MLJ
12 SC
• Mohd Yusof bin Awang & Anor v Malayan Banking Bhd & Anor [1995] 4
MLJ 493
• Medoc Trading Pte Lid v Vijay Kumar Natarajan & Ors [1994] 4 CLJ 744
• Teh Eok Kee & Ors v Tan Chiah Hock & Anor [1995] 3 MLJ 613, - Whether
solicitor had actual or ostensible authority to bind client
contractually - Whether authority flowed from and subject to retainer.
• Seema Development Sdn Bhd v Fah Kin Pang & Ors [1997] 2 CLJ 571 -
Oral Challenge to solicitors' authority
Professional Practice 506

• T Devindran N Thatchnamurty v Kerajaan Negeri Johor & Ors [2004] 3

CLJ 535 - Consent Order - Setting aside - Counsel's lack of authority to
enter consent order - Whether sufficient grounds for setting aside
order - Whether order could be set aside if in the interests of justice.
• Perbadanan Kemajuan Kraftangan Malaysia v DW Margaret a/p David
Wilson (t/a Kreatif Kraf) - [2010] 2 MLJ 713 FC - Right of audience
• Bs Eramaju Engineering Sdb Bhd v OPS Suria (EM) Sdn Bhd & Anor and
another appeal [2018] 5 MLJ 647 – Whether solicitor has express or
implied authority to bind his client contractually to another party

5. Counsel and Contempt of Court/Disciplinary Proceedings for

Misbehaviour in Court

• Re T T Rajah [1973] 1 MLJ 79

• Hilborne v Law Society [1978] 2 All ER 757 PC
• Maharaj v A G Trinidad [1977] 1 All ER 411 PC
• Karam Singh v PP [1975] 1 MLJ 229
• Re Kumaraendran [1975] 2 MLJ 45
• PP v Seeralan s/o Suppiah [1985] 2 MLJ 30 S C
• Lewis v Ogden (1984) 153 CLR 682
• Home Office v Harman [1982] 1 All ER 532 HL
• Cheah Cheng Hoc v Public Prosecutor [1986] 1 MLJ 299
• Anthony Wee [1988] 3 MLJ 9
• AG v Times Newspaper [1973] 3 All ER 54
• Raymond v Honey [1982] 1 All ER 756
• R v Gray [1900] 2 QB 36
• AG v Arthur Lee [1987] 1 MLJ 206
• Trustee of Leong etc v SM Idris [1990] 1 MLJ 273
• A G v Manjeet Singh [1991] I MLJ 167
• Lai Cheng Chong v Public Prosecutor [1993] 3 MLJ 147
• In Re Tai Choi Yu (1999) 5 CLJ 201
Professional Practice 507

• Adam Phones Ltd v Goldschmidt and others [1999] 4 All ER 486

• Darshan Singh Khaira v Enbishi (M) Sdn Bhd [1999] 8 CLJ 94, [1998] 7
MLJ 178

➢ Contempt of Court

o Casebook of Contempt of Court in Malaysia by Vijayalaskhmi

Venugopal, Sweet & Maxwell, 2014

o Borrie & Lowe, The Law of Contempt, 4th Edition

o Freedom of Expression and the Rights of the Accused by Jerald

Gomez [2002] 3 MLJ ccxli

o Zainur Zakaria v PP [2000] 4 MLJ 134 - Advocate and solicitor filing

contemptous motion on behalf of client - Whether act an attempt to
undermine integrity of ongoing trial

o Jasa Keramat Sdn Bhd v Monatech (M) Sdn Bhd [2001] 4 CLJ 549
(CA) - Disposing Subject matter of a pending proceeding - whether
an act interfering with the due administration of justice

o Zainuddin Muhammad v Atsco Ltd & Anor [2001] 4 CLJ 141

(CA) - Breach of court order - whether warning
sufficient - contemnors character, age and health

o Tommy Thomas v Peguam Negara, Malaysia 7 Other Appeals [2001]

3 CLJ 457 (CA) - Breach of undertaking - appellant issued press
statement in breach of undertaking given in High Court - whether
High Court had jurisdiction suo moto to punish appellant for
contempt
Professional Practice 508

o Dato' Abdullah Hisham Hj Mohd Hashim v Sharma Kumari Shukla

(No 4) [2001] 5 CLJ 400 (HC) – Non - compliance of s. 16(3)
Bankruptcy Act 1967 by defendant - whether plaintiff could proceed
for committal under O. 52 Rules of the High Court 1980

o Lee Chan Leong v Jurutera Konsultant (SEA) Sdn Bhd & Ors [2002]
3 MLJ 718 (CA) Letter written by counsel to Chief Justice - No
express or implied libel of trial Judge - Failure to formulate and
frame charge - whether nullity.

o Thiruchelvasegaram Manickavasegar v Mahadevi Nadchatiram

[2003] 2 CLJ 752 - Contempt of court - Committal
proceedings - Submitting injuncted libelous materials to
Investigating Tribunal - Whether a serious misconduct - Whether
merited committal order - Legal Profession Act 1976, ss. 101(4) (a)
(i), 111.

o Lee Ngan Fatt v Tham Hua Kong [2005] 1 CLJ 826 - Threats issued
against defendants by plaintiff and solicitor. Whether constitutes
unacceptable interference with due administration of justice.
Whether allegations proved beyond reasonable doubt.

o Nadarajan s/o Verayan v Hong Tuan Teck (Part 2) [2007] 7 MLJ 640
- Advocate and Solicitor struck off the Roll - Appeal to High Court -
Appeal out of time - Whether court empowered to enlarge time -
Burden on appellant to show why extension of time ought to be
allowed - Whether appellant discharged burden on balance of
probabilities - service of appeal record on Director of the Complaints
Secretariat - Whether service properly effected on Disciplinary Board
- Effect of failure to serve cause papers on Disciplinary Board -
Whether service of cause papers/appeal record on Disciplinary Board
Professional Practice 509

required - Whether Disciplinary Board had locus to participate in

proceedings.

o Metro Giant Group Sdn Bhd v Gala Sari Resources Sdn Bhd & Ors
[2007] 7 MLJ 52 - Subject matter were three letters written -
Respondent admitted letters were antedated - Explanation that they
were used to evidence record of payments - Whether antedating of
three letters constitute a contempt.

o Edmund Ming Kwan @ Kwaun Yee Ming, Edmund v Extra Excel

(Malaysia) Sdn Bhd & Ors (Part 2) [2007] 7 MLJ 276 - Order of
committal, application for - Intent to obstruct or frustrate the
administration of justice - Whether proof beyond reasonable doubt
required.
Whether the statement was intended to be false and misleading -
Whether it was made with actual or inevitable intent or consequence
of frustrating or obstructing the administration of justice.

o Hermon Ando v Tactland Development Sdn Bhd and other appeals

[2009] 6 MLJ 38 - Contempt of court - Contravention of injunction -
Deliberate breach - Admission of breach and apology - Whether
contempt of court.

o Probil Sonati Development Sdn Bhd v Hodan-R Sdn Bhd (Lt CDR (B)
Mohammed Azmi bin Mohd Said, respondent) [2009] 7 MLJ 726 -
Contempt of court - Civil contempt by counsel - Counsel writing to
Chief Justice of Malaya (CJ) alleging bias on part of High Court judge
- Whether contents of letter to CJ constituted contempt in face of
court - Whether judge in whose court contempt occurred
empowered to hear and adjudications over contempt proceeding -
Whether counsel who wrote to CJ on instructions of his client
Professional Practice 510

exonerated from contempt.

o HSBC Bank Malaysia Bhd v Tirathrai Sdn Bhd [2009] 7 MLJ 168 -
Civil Procedure - Contempt of Court - Order of Committal, application
for - Defiance of court order - Interference with administration of
justice and obstructing course of justice - Court process being used
as tool of oppression and injustice - Effort to set order for sale to
naught - Whether defendants deliberately attempted to circumvent
court order - Whether defendants act could be interpreted as
contumelious - Whether directors of first respondent guilty of
contempt of court - Whether custodial sentence warranted - Rules of
the High Court 1980 O 52.

o PCP Construction Sdn Bhd v Leap Modulation Sdn Bhd (Asian

Interntanional Arbitration Centre, Intervener) (2019) 4 MLJ 747 –
scandalising the court, the test and the element of mens rea,
whether required.

o Wong Chin Yam v Bar Malaysia (2019) 3 MLJ 129

6. Legal Professional Privilege/section 126 Evidence Act 1950

• In Re Sarah Trust [1985] 2 All ER 809

• Peter Chi Man Kwong & Anor v Ronald Lee Kum Seng [1985] I MLJ 21
• R v King [1983] I WLR 411
• Baker v Campbell (1983) 153 CLR 52
• Goddard v Nationwide Building Society [1986] 3 All ER 264
• R v Central Criminal Court [1988] 1 All ER 677
• Emilio Giannarelli & Ors v Daryl G Wraith & Ors [1991] 3 CLJ 1659
• Chua Su Yin & Co v Ng Sung Yee [1991] 2 MLJ 348
• R v Bowden [1999] 4 All ER 43
Professional Practice 511

• R v Crown Court at Manchester, ex parte Rogers [1999] 4 All ER 35

• See Teow Chuan & Anor v Dato Anthony See Teow Guan [1999] 4 CLJ
333 - to ask legal opinion given, to be given in evidence - rejected
• Cheah Cheng Hoc & Ors v Liew Yew Dam & Ors [2000] 6 MLJ 204
• Dato' Seri Dr Ling Liong Sik v Krishna Kumar s/o Sivasubramaniam [2002]
2 MLJ 278 - Communication between solicitor and client - Information on
date and mode of clients’ instructions - whether extends to matters
observed by solicitors in the course of his retainer
• Yap Hong Choon v Pritam Singh [2006] 1 CLJ 842 - Evidence - Privilege -
Legal professional privilege - Whether rules of court can take away
privilege to withhold experts' reports
• Leonard Teoh Hooi Leong v Public Prosecutor [2010] 3 MLJ 373- Evidence
- Privilege - Legal professional privilege - Communication between solicitor
and client - Whether communication privileged where solicitor
investigated over criminal case - Evidence Act 1950 section 126

7. Advocacy and the Trial in Court; Examination of Witnesses: sections

135-166, Chapter X, Evidence Act 1950

(a) Preparation for Trial

(b) Opening Speech

(c) Examination of Witnesses

(i) Examination in Chief

(ii) Cross-Examination

(iii) Re-Examination

(d) Closing Submission

(e) Order 35 r. 4 Rules of Court 2012

Professional Practice 512

Cases

• Seldon v Davidson [1968] 2 AER 755

• Tay Bok Choon v Tahansan [1987] 1 MLJ 433
• Mechanical & G.L. Co Ltd v Austin Motor Co AIR 1935 AC 346
• Vassiliades v R AIR 1945 PC 38
• Rajkumar v Ram Sundar AIR 1932 PC 69
• Rama Reddy v V. V. Giri AIR 1971 SC 1162
• Pillai v Thamby AIR 1940 R 133
• Bipinchandra v Prabhavati AIR 1957 SC 176, 186-187
• In Re Vasantha Pai AIR 1960 M 73
• Rondel v Worsley [1967] 3 All ER 993
• Subala v Indra AIR 1923 C 315
• Mohd Sultan v Sarqj-ud-Din AIR 1936 L 183
• Sat Paul v Delhi Administration AIR 1976 SC 294
• Rabindra v State of Orissa AIR 1977 SC 170
• Pavone v PP [1986] 1 MLJ 72
• Lui Mei-lin v R [1989] 1 All ER 359 PC
• Jones v National Coal Board [1957] 2 All ER 155
• Yuill v Yuill [1945] 1 All ER 183
• Wong Swee Chin v PP [1981] 1 MLJ 212
• The King v Kennawary [1917] 1 KB 25
• Alister v Queen (1984) 58 ALJR 97
• Hobbs v Tinlings & Co [1929] 2 KB 1
• Toohey v Metropolitan Police Commissioner (1965) AC 595
• Gana Muthusamy v LM Ong & Co [1998] 3 MLJ 341
• Jaya Harta Realty Sdn Bhd v Koperasi Kemajuan Pekerja-Pekerja Ladang
Bhd [2000] 8 CLJ 246
• Lai Foh & Sons Sdn Bhd v Skrine & Co [2001] 3 CLJ 185 - Duty of
Stakeholder - Solicitor released Title - Fraud, Charged to Bank
Professional Practice 513

Reading Materials

• Richard Du Cann, The Art of the Advocate Chap III: The Essentials of
Advocacy; Chap IV: Opening The Case; Chap VI to VII: Cross-
Examination; Chap X: The Final Speech.

• Irving Younger, Cicero's Ten Commandments of Cross-Examination

• The Closing Speech by Lloyd Paul Stryker in The Art of Advocacy

• Civil Trial Advocacy, A Practical Guide, Gurdial Singh Nijar, Advanced

Professional Courses, 2002.

• Evidence and the Litigation Process, Pinsler J, 3rd Edition, LexisNexis, 2010

8. Arguing The Appeal

(a) Preparation for an Appeal

(b) Appellate Advocacy

Recommended Reading:

“How to Argue Appeals” by Mr Justice Kholsa in Malik's The Art of A Lawyer

(ed. 1957) p 241.

IMPORTANT NOTE: Candidates are expected to be thoroughly familiar with the

Legal Profession (Practice and Etiquette) Rules 1978.
Professional Practice 514

PART II

ETHICS OF THE LEGAL PROFESSION

A. Introduction

1. The legal profession in Malaysia is regulated by the Legal Profession Act

1976 (Act 166) (‘LPA’). The LPA has been amended over the years and was
recently amended by the Legal Profession (Amendment) Act 2012 (Act
A1444). Candidates are expected to take note of the relevant amendments.

2. The legal profession is also regulated by the rules made pursuant to the LPA. It
must be impressed on the candidates that the practice of the legal profession is
guided by professional ethics; that ethics encompass morals, values and the
conventions governing the conduct of the professional group.

3. Candidates are expected to be familiar with the following Rules in addition to

the Legal Profession (Practice and Etiquette) Rules 1978 and the
Legal Profession (Practice and Etiquette) (Amendment) Rules 1994:

• Legal Profession (Licensing of International Partnerships and Qualified

Foreign Law Firms and Registration of Foreign Lawyers) Rules 2014 – P.U.
(A) 148/2014.
• Legal Profession (Publicity) Rules 2001 – P.U. (A) 345/2001
• Legal Profession (Discipline Fund) Rules 1994 – P.U. (A) 249/1994;
• Legal Profession (Disciplinary Board) (Procedure) Rules 1994 – P.U. (A)
191/1994
• Legal Profession (Disciplinary Proceedings) (Appeal) Rules 1994 – P.U. (A)
190/1994
• Legal Profession (Disciplinary Proceedings) (Investigating Tribunal and
Disciplinary Committee) Rules 1994 – P.U. (A) 189/1994
• Legal Profession (Professional Liability) (Insurance) Rules 1992 – P.U. (A)
Professional Practice 515

237/1992
• Solicitors’ Accounts (Deposit Interest) Rules 1990 – P.U. (A) 303/1990
• Accountant’s Report Rules 1990 – P.U. (A) 302/1990
• Solicitors’ Account Rules 1990 – P.U. (A) 301/1990
• Bahasa Malaysia Qualifying Examination (Qualified Persons) Fees Rules
1984 – P.U. (A) 375/1984
• Legal Profession (Aritcled Clerk) Rules 1979 – P.U. (A) 328/1979
• Advocates and Solicitors Compensation Fund Rules 1978 – P.U. (A)
370/1978
• Legal Profession (Practice and Etiquette) Rules 1978 – P.U. (A) 369/1978
• Advocates and Solicitors (Issue of Sijil Annual) Rules 1978 – P.U. (A)
368/1978
• Advocates and Solicitors (Disciplinary Enquiry) Procedure Rules – P.U.(A)
232/1970
• Solicitors’ Remuneration Order 2005 – P.U. (A) 520/2005
• Solicitors’ Remuneration (Multi-Currency Trade Finance and Indirect
Exporter Financing Schemes) Order 2006 – P.U. (A) 14/2006

B. Structure of the Malaysian Legal Profession

1. Part II LPA

• Qualifying Board - Exercise of administrative powers

o Indrani a/p Ramasamy v LKPUU [2007] 1 MLJ 177

2. Part III LPA

• Practising Certificate - Importance of Sijil Annual in Practice of Law.

o Diljit Kaur a/p Puran Singh v Majlis Peguam Malaysia [2015] 7 MLJ
695
Professional Practice 516

• Pupilege

o Majlis Peguam Malaysia & Anor v Judy Blacious s/o AF Pereira

(2017) 1 MLJ 681

3. Part IV LPA

• Privileges of advocates & solicitors – s. 35

o Perbadanan Kemajuan Kraftangan Malaysia v DW Margaret a/p

David Wilson (t/a Kreatif Kraf) [2010] 2 MLJ 713

4. Part IV A

• International Partnership, Qualified Foreign Law Firms and

Registration of
• Foreign Lawyers.

o 40A. Interpretation
o 40B. Licence required for foreign law firm.
o 40C. Selection Committee
o 40D. Alternate members.
o 40E. Meetings of the Selection Committee
o 40F. International partnership
o 40G. Qualified foreign law firm
o 40H. Employment of a foreign lawyer by a Malaysian law Firm.
o 40I. Suspension or revocation of registration
o 40J. Registration of a foreign lawyer to practise in an
international partnership, a qualified foreign law firm or
Malaysian law firm.
o 40K. Suspension or revocation of registration.
o 40L. Professional conduct, ethics and registration.
Professional Practice 517

o 40M. Disciplinary authority.

o 40N. Power to require documents, etc.
o 40O. Power to make rules.

5. Part V LPA

(a) Malaysian Bar - note its role (section 42 LPA)

(b) Capacity of advocate & solicitor to practise [section 36(1) LPA]

• Bar Malaysia v HF Vitality (Malaysia) Sdn Bhd [2003] 1 AMR 758
• Majlis Peguam v Poh Fook Yuen & Anor [2012] 5 MLJ 18

Civil Procedure – Intervention – Application for – Disciplinary Board

appointing Disciplinary Committee to investigate complaint against
respondents – Respondents obtaining injunction to prevent
complainants from taking further proceedings against respondents –
Whether Majlis Peguam could intervene and to vary injunction -
Whether Majlis Peguam a ‘party aggrieved’

Legal Profession – Malaysian Bar – Legal entity – Malaysian Bar a

body corporate represented by Majlis Peguam – Whether Majlis
Peguam ‘party aggrieved’ when Disciplinary Board prevented from
carrying out its responsibilities

Legal Profession – Professional discipline – Disciplinary Committee –

Disciplinary Board (‘DB’) – DB appointing Disciplinary Committee to
investigate complaint against respondents – Respondents obtaining
injunction to prevent complainants from taking further proceedings
against respondents – Whether Majlis Peguam could intervene and
to vary injunction – Whether Majlis Peguam had locus standi – Legal
Profesiion Act 1976 ss 41, 42, 47, 93(1), (2) & 103E.
Professional Practice 518

(c) Disqualification from membership – Section 46A LPA

• Sivarasa Rasiah v Badan Peguam Malaysia & Anor [2010] 2 MLJ 333

6. Part VI LPA

(a) Professional Practice, Etiquette, Conduct and Discipline of Advocate and

Solicitor (note relevant Rules referred below).

(b) Note section 88A LPA and powers of Bar Council to act in the public
interest.

7. Part VII LPA -

• Disciplinary Proceedings (note: amendment to LPA re. Part VII)

o Index Continent Sdn. Bhd. v Bar Malaysia [2014] 6 MLJ 451

Legal Profession – Malaysian Bar – Powers – Malaysian Bar obtained

injunction to prevent carrying on business to link members of publics
having legal queries with lawyers who could answer them –
Injunction based on company’s alleged breach of of s 37 of the
Legal Profession Act 1976 (‘LPA’) – Whether breach of s 37 penal in
nature – Whether action for infringement of s 37 within sole purview
of attorney general as public prosecutor and not for Malaysian Bar to
enforce by way of civil proceedings – Whether Malaysian Bar’s
powers to take legal action limited to matters ‘concerning the affairs
of the Malaysian Bar’ - Section 57(j) of the LPA – Whether
Malaysian Bar did not have substantive locus standi to apply for
injunction against company

o Bar Malaysia v Index Continent Sdn Bhd [2016] 1 MLJ 445

Legal Profession – Malaysian Bar – Locus standi to sue – Respondent

launched prepaid service to members of public – Service of
connecting
Professional Practice 519

requesting party to appropriate law firms – Malaysian Bar applied for

various declaratory reliefs and injunction against respondent for
promoting prepaid legal services – Whether Malaysian Bar had
necessary substantive locus standi – Whether only attorney general
has power to deal with such criminal act by way of prosecution –
Federal Constitution, art 145 – Legal Profession Act 1976 ss 37, 41,
42 & 57

C. The Need for Ethics

1. Legal Profession Act 1976 (LPA):

(a) Admission of advocates and solicitors under section 10 LPA and

qualifications for admission under section 11 LPA.

• Understand the difference between requirements under sections 10

and 11 LPA leading to admission and enrolment under section 15
and admission under the sections prescribed below:

o section 18 LPA - Admission in Special Cases

o Part IIA LPA - Admission pursuant to the Special Admission

Certificate by the Attorney General

(b) Striking off and Re-admission

• Chee Kuat Lin v Majlis Peguam [2012] 4 MLJ 407, [2012] 4 AMR 101

Legal Profession – Disciplinary proceedings – Disciplinary committee

– Appellant ordered to be struck off roll – Appeal to High Court –
Whether appellant failed to disclose all relevant facts when
petitioning for admission to Bar – Whether appellant deliberately
misled respondent into believing he was not gainfully employed
Professional Practice 520

• Awtar Singh v Majlis Peguam [2012] 4 AMR 1

Profession – Advocates and Solicitors – Readmission to the Roll of

Advocates and Solicitors – Application to be restored to the Roll of
Advocates and Solicitors (“the Roll”) – Disciplinary proceedings
previously instituted against applicant resulting in applicant being
struck off the Roll – Whether applicant now a fit and proper person
to be restored to the Roll – Legal Profession Act 1976, s 107(1)

2. Professional Discipline

• Restoration of name to roll of advocates and solicitors

o Awtar Singh a/l Puran Singh v Majlis Peguam Malaysia – [2013] 1

MLJ 817

Legal Profession – Professional discipline – Reinstatement –

Restoration of name to roll of advocates and solicitors – Principles to
be applied in considering application – Legal Profession Act 1976
(‘LPA’) s 107 (1) – Whether being struck off for five years gave rise
to automatic right to be reinstated – Whether applicant – had
rehabilitated during the interim period – Burden of proof on
applicant – Whether applicant was a fit and proper person to have
his name restored to the Roll.

o Charan Jit Singh a/l Santokh Singh v Majlis Peguam Malaysia & Anor
[2013] 9 MLJ 400

Legal Profession – Professional discipline – Reinstatement –

Restoration of name to Roll of Advocates and Solicitors – Applicant
struck off the Roll pursuant to dishonor of cheque issued to client
from firm’s client’s account – No evidence of dishonesty – Whether
applicant’s ex-wife’s objection to readmission was proper – Whether
applicant’s referees were not credible – Whether applicant has lost
Professional Practice 521

knowledge of law – Whether applicant has received sufficient

punishment and fully rehabilitated – Whether fair and reasonable for
applicant to be restored to the Roll – Legal Profession Act 1976 s
107

o Thavananthan a/l Balasubramaniam v Majlis Peguam Negara (2010)

3 MLJ 316 - Conviction on offence of soliciting and accepting corrupt
money. A conviction should not be regarded in every case as being
permanent unfit to be readmitted into the Roll of advocates and
solicitors. Disbarment is not necessarily intended to be permanent. It
was for the appellant in this case to show that he was now a fit a
proper person to have his name restored to the Roll.

o Majlis Pguam Malaysia v Ahmad Rushdi bin Omar (2017) 6 MLJ 70 –

lack of remorse in the application.

3. Suspension for practice

• Ding Siew Ching v Ling Peek Hoe [2014] 2 MLJ 715

Legal Profession – Professional discipline - Suspension from practice –

Appeal against decision of disciplinary board was dismissed by the High
Court – Duty owed by disciplinary board to safeguard and protect
members of public – Whether disciplinary committee had exceeded
parameters of complaint against appellant – Whether findings of
disciplinary committee inconsistent – Whether the High Court judge’s
failure to hand down written grounds of judgement constituted sufficient
reason for appellate intervention – Whether punishment excessive or
disproportionate to degree of professional misconduct of appellant

• Patrick Samuel a/l Joseph Sebastian v Majlis Peguam Malaysia [2014] 9

MLJ

Legal Profession – Professional discipline – Restoration to the Roll –

Professional Practice 522

Application made after three years struck off the Roll – Appellant
remorseful

for his professional misconduct and truly penitent – Whether there was
strong basic for restoration – Conduct of applicant – Whether applicant fit
and proper person to resume practice – Whether any time frame to make
applicant – Legal Profession Act 1976 s 107

4. Practice of Law (Sabah)

• Mohamed Azahari bin Matiasin v GBB Nandy @ Gaanesh (in his capacity
as the President of the Sabah Law Association is sued/named as the
respondent in this appeal proceedings pursuant to s 9(c) of the Societies
Act 1966) & Anor [2013] 5 MLJ 474

Legal Profession – Practice of law- Whether foreign counsel may appear in

arbitration proceedings – Appointment of advocate and solicitor from
Kuala Lumpur to act as co-counsel in arbitration proceedings in Sabah –
Whether ought to be allowed – Interpretation of exclusive right to practise
in Sabah’ in s 8 (1) of the Advocates Ordinance 1953

D. Legal Profession (Practice and Etiquette) Rules 1978 (LPPER)

1. Acceptance of Brief

(a) No advocate and solicitor obliged to act for every person

• rules 2 – 6 LPPER
• rules 24, 28 & 25 LPPER
• rule 54 LPPER
• Awaluddin bin Suratman & Ors v PP [1991] 3 CLJ 2459 - advocate
and solicitor not to abandon client in the midst of trial
• Lai Cheng Chong v Public Prosecutor [1993] 3 MLJ 147
Professional Practice 523

• Ex Parte Vicnandan Maria Dass [2000] 3 CLJ 808

(b) Counsel cannot act for all parties concerned

• rule 5(a) LPPER

• Che Ahmad Hj Che Daud & Ors v DCB Bank Bhd [2001] 5 CLJ 333
• Tan Kim Hor & Ors v Tan Heng Chew & Ors [2004] 6 CLJ 338

Acceptance of brief - Conflict of interest - Firm had previously

advised respondent
company - Confidentiality - Embarrassment - Whether embarrassed
– Professional independence - Whether an issue - Companies Act
1965, s. 221(2)(f) - Legal Profession (Practice and Etiquette) Rules
1978, rr. 3 & 5

Duty to Client - Duty to make every effort to ensure appearance at

day of hearing. Rules 6(a) & 24(a) Legal Profession (Practice and
Etiquette) Rules 1978.

• Shashi Kumar Suppiah vTimbalan Menteri Dalam Negeri Malaysia &

Ors [2010] 9 CLJ 349

• JP Anandam a/l Janardanan v Manoharan Malayalam [2015] 7 MLJ

799

Conduct of trial - Advocate and solicitors handled client’s case

against client’s employer – Case regarding contract and tort of
negligence – Petition filed by counsel on behalf of client due to
failure to settle amount awarded pursuant to consent judgement –
Whether facts pertaining to consent judgement entered into within
client’s knowledge - Whether consent judgement entered upon
terms agreed between parties – Whether terms of consent
judgement enforceable and inchoate
Professional Practice 524

(b) Practice and Etiquette

• RS Muthiah v Pembinaan Fiba Sdn Bhd [2004] 2 CLJ 917

Acceptance of Brief - Embarrassment - Personal relationship

between solicitor and party or witness in proceedings - Wife of
Managing director of defendant company acting as solicitor for
defendant company - Managing director the principal witness in
proceedings - Whether solicitor should have accepted
brief - Whether r. 3(b)(ii) Legal Profession (Practice & Etiquette)
Rules 1978 bars solicitor from representing defendant company

Conflict of interest – Defendant’s present solicitor having previously

acted for plaintiff - Access to documents and confidential information
pertaining to plaintiff – Whether there could be conflict of interest
such that justice would not be seen to be done

Professional independence - Wife of Managing director of defendant

company acting as solicitor for defendant company - Company
secretary of defendant acting as solicitor for defendant - Whether
incompatible with best interest of administration of justice - Legal
Profession (Practice & Etiquette) Rules 1978, r. 5(a) - Right to
counsel, whether without limitation - Observance of practice and
etiquette rules and respectability of Bar

• Low Yien Kwee v Ever Noble Sdn Bhd [2008] 5 MLJ 379 - Profession
- Legal Professional discipline - Practice and Etiquette Rules:

Application for disqualification of solicitors - Likelihood of one of

plaintiffs' solicitors (firm) being made witness in present suit -
Whether there was sufficient evidence to justify denying the firm
right to represent plaintiffs - Legal Profession (Practice and
Etiquette) Rules 1978 r 28

Application for disqualification of solicitors - Whether firm were in

breach of ethics of legal profession - Whether professional conduct
Professional Practice 525

of firm was likely to be impugned when it acted for plaintiffs -

Whether there was conflict of interest or breach of professional
independence by the firm - Legal Profession (Practice and Etiquette)
Rules 1978

• Dr Trilochan Kaur d/o Mohan Singh v The Malaysian Dental Council

& Anor [2009] 4 MLJ 244

Legal Profession - Professional discipline - Practice and Etiquette

Rules - Application for disqualification of solicitors - Active
participation by advocate and solicitor and legal firm in disciplinary
enquiry proceedings before Dental Council - Whether improper to
act for Dental Council in judicial review proceedings challenging its
decision - Advocate and solicitor implicated directly - Whether
position akin to a witness - Whether difficult to maintain professional
independence - Legal Profession (Practice and Etiquette) Rules 1978
rr 3, 4, & 5

• Lim Ts-Fei v Lee Lai Tiam [2011] 6 MLJ 613

Breach of Rules of Etiquette - Conflict of interest – Legal Profession

(Practice and Etiquette) Rules 1978 rr. 3 (a), 4 & 5

• Tanjong Marina Sdn Bhd v Penang Port Sdn Bhd [2014] 10 MLJ

Legal Profession – Breach of rules of etiquette – Conflict of interest –

Applicant to prevent firm of advocates and solicitors from
representing plaintiff company – Partner on legal firm also executive
director of plaintiff Partner actively involved in transaction and
dispute between plaintiff and defendant – Whether direct conflict of
interest – Whether direct pecuniary interest in case – Whether whole
legal firm disqualified plaintiff – Legal Profession (Practice and
Etiquette) Rules 1978 rr 3, 4, 5(a), 7(b), 27, 28, 29 & 32 – Legal
Profession Act 1976
Professional Practice 526

Legal Profession – Liability as fiduciary – Conflict of interest and duty

– Application to prevent firm of advocates and solicitors from
representing plaintiff company – Partner in legal firm also executive
director of plaintiff – Partner actively involved in transactions and
dispute between plaintiff and defendant – Whether direct conflict of

interest – Whether direct pecuniary interest in case – Whether

pobability of partner being material witness for plaintiff – Whether
whole legal firm disqualified from representing plaintiff – Legal
Professional Legal Profession (Practice and Etiquette) Rules 1978 rr
3, 4, 5(a), 7(b), 27, 28, 29 & 32 – Legal Profession Act 1976

• Bonifac Lobo a/l Robert V Lobo v Wong Wooi Meng [2015] 8 MLJ
338

Professional etiquette – Whether advocate and solicitors who was

plaintiff in suit could represent himself as counsel when he had
already appointed firm of solicitors to act for him – Whether plaintiff
should discharge his solicitors and give notice that he would act in
person if that was his intention – Whether defendant would be
disadvantaged if plaintiff allowed to act as his own counsel in
addition to being represented by advocate from his solicitor’s firm –
Whether plaintiff’s wanting to act for himself breached rr 27 (a) and
28 (a) of Legal Profession (Practice and Etiquette) Rules 1978 as he
had pecuniary interest in subject matter of suit and was also main
witness to material and disputed questions of fact at trial – Rules of
Court 2012 0 64 r 3

Breach of Rules of Etiquette - Conflict of interest - Legal Profession

(Practice and Etiquette) Rules 1978 rr. 3 (a), 4 & 5

2. Performance in Court

(a) Advocate to be ready for trial

Professional Practice 527

• rule 2 LPPER

• rule 6 LPPER

o Syarikat Siaw Teck Hwa Realty & Developments Sdn Bhd v

Malek & Joseph Au [1999] 5 MLJ 588 - Failure to appear in
Court of Appeal

• rule 24 LPPER

o PP v Mohtar bin Abdul Latiff [1980] 2 MLJ 51

o Tan Pak v Cham Boon San and other actions [1992] 2 MLJ 271

• rule 24 LPPER

o Zainuddin Husin v Yung Heng Farm Sdn Bhd [2004] 2 CLJ 231
- Failure to make effort to be ready for trial - application for
adjournment - Professional discipline – Misconduct

(b) Advocate to undertake defence fairly and honourably

• rule 9 – 10 LPPER

(c) Civil Cases intended to delay proceedings

• rule 12 LPPER
• OCBC Bank (M) Bhd v C T K Enterprise Sdn Bhd [2000] 6 CLJ 158

(d) Advocate to guard against insulting or annoying questions

• rule 13 – 14 LPPER
• sections 146, 148, 151, 152 Evidence Act 1950

(e) Respect to the Court

• rule 15 – 16 LPPER
• AG & Ors v Arthur Lee Meng Kuang [1987] 1 MLJ 206
• P.P. v Seeralan [1985] 2 MLJ 30
Professional Practice 528

• Re Kumaraendran [1975] 2 MLJ 45

• Trustees of Leong San Tong Khoo Kongsi v SM ldris & Anor 1990] 1
MLJ 273
• AG v Manjeet Singh [1991] 1 MLJ 167
• Rhina Bhar v Malaysian Bar [1994] 1 MLJ 24

(f) No deception on court

• Rules 17 - 18, 20 – 23 LPPER

• Dato' Wong Gek Meng v Pathmanathan Mylvanam & Ors [1998] 1
CLJ 625
• Agi ak Bungkong & Ors v Ladang Sawit Bintulu Sdn Bhd & Ors
[2010] 4 MLJ 204
• Selected Reading: Duty of Counsel to bring to court's notice
authorities material to case (1958) MLJ xl

(g) Professional Discipline - Conflict of interest - Conduct of solicitors -

professional independence

• Low Yien Kwee v Ever Noble Sdn Bhd [2008] 5 MLJ 379

Application for disqualification of solicitors - Likelihood of one of

plaintiffs' solicitors (firm) being made witness in present suit -
Whether there was sufficient evidence to justify denying the firm
right to represent plaintiffs - Legal Profession (Practice and
Etiquette) Rules 1978 r. 28

Application for disqualification of solicitors - Whether firm were in

breach of ethics of legal profession - Whether professional conduct
of firm was likely to be impugned when it acted for plaintiffs -
Whether there was conflict of interest or breach of professional
independence by the firm - Legal Profession (Practice and Etiquette)
Rules 1978
Professional Practice 529

• Selvaratnam a/l Vellupillai v Dr Jayabalan Karrupiah [2009] 1 MLJ

794

Legal Profession - Professional discipline - Suspension from practice -

Complaint of misuse of client's money - Whether monies in firm's
client account could be utilised by appellant to settle outstanding
fees from respondent - Whether appellant received monies as
stakeholder.
• Vellasamy a/l Pennusamy & Ors (on their behalf and for the 213
sub-purchasers of plots of land known as PN 35553, Lot 9108,
Mukim Hutan Melintang, Hilir Perak) v Gurbachan Singh a/l Bagawan
Singh & Ors [2010] 5 MLJ 437

Legal Profession - Liability as fiduciary - Conflict of interest and duty

- Solicitor acting for beneficial owners of land - Solicitor purchased
same land for own benefit - Whether breach of fiduciary duty to
clients - Whether solicitor to account to clients for gains made out of
breach of fiduciary duty

• Berjaya Land Bhd v Wong Chee Hie & Ors [2012] 8 MLJ 129

Legal Profession – Disqualification – Conflict of interest – Defendants

applied to disqualify legal firm acting for plaintiff – Defendants’
affidavit exhibited emails between plaintiff and certain solicitors of
legal firm – Allegation that emails showed action plan against
defendants in furtherance of illegal purpose – Solicitors concerned
proposed to be called as witnesses – Whether for that reason firm as
a whole should be disqualified – Whether defendants shown nexus
or conflict of interest between rest of the firm and contesting parties
– Whether firm able to maintain professional independence in acting
for plaintiff
Professional Practice 530

• Tan Ming Yeow v Lee Chuen Tiat & Anor [2012] 8 MLJ 805

Legal Profession – Practice of law – Whether agreement made

between plaintiff and solicitor for costs to be off set for expenses
incurred handling plaintiff’s cases – Whether oral agreement suffice
on account for fees payable by client to solicitors

• Lee Ah Kong v Ong & Co [2011] 1 MLJ 426

Professional Discipline - Liability as Fiduciary – Conflict of interest

and duty

• Guthrie Property Development Holding Bhd v Baharudin bin Hj Ali &

Ors [2011] 3 MLJ 416

Legal Profession – Liability as fiduciary – Conflict of interest and duty

– Action against individual partners as members of legal firm –

Defendants unable to account for stakeholder monies collected by

firm – Liability of stakeholder

• Ong Guek Siang & Anor v Asset First Sdn Bhd & Anor (Prasad
Abraham J) [2012] 10 MLJ 61

Civil Procedure - Damages – General damages – Plaintiffs had not

prayed for general damages – Whether plaintiffs should be allowed
to amend pleadings to claim same

Legal Profession – Solicitor-client relationship – Whether relationship

between plaintiffs and second defendant was that of solicitor and
client – Liability – Failure to protect plaintiffs’ interests – Whether
retainer imposed obligation to be skilful and careful upon second
defendant – Whether second defendant liable for breach of contract
– Whether second defendant in breach of duty of care it owed to
plaintiffs – Whether second defendant in breach of fiduciary duty –
Professional Practice 531

Whether plaintiffs could recover total amount invested in scheme

from second defendant

• Datuk M Kayveas & Anor v Bar Council [2013] 5 MLJ 640

Legal Profession – Liability as fiduciary – Stakeholding – Acting in

manner unbefitting of advocate and solicitor – Solicitor breached
duty as stakeholder of monies in conveyancing transaction –
Unauthorised payment made out from stakeholder sum – Whether
breach of stakeholder undertaking nor merely contractual breach of
fiduciary duty – Whether stakeholder in position of trustee -
Whether breach of undertaking and stakeholding absent
dishonourable conduct still amounted to misconduct – Legal
Profession Act 1976 s 94(3)(o)

• Molly Margrete a/p Andrew Gomez v Tan Suat Ching & Anor [2014]
7 MLJ 768

Legal Profession – Solicitors – Discharge by client – Solicitor

continuing to act for client despite discharge by client – Notice of
change of solicitor not filed – Whether amounting to misconduct –
Whether conduct unbefitting of an advocate and solicitor – Legal
Profession Act 1976 s 94 (3)(n) ỡ (o) – Legal Profession (Practice
and Etiquette) Rules 1978 r 16

Legal Profession – Disciplinary proceedings – Disciplinary Board –

Whether properly conducted – Whether disciplinary board may
amend orders made under s 103 of the Legal Profession Act 1676 –
Whether unlawful addition of charge by Disciplinary Committee
country to s 103B of the Act – Whether appellant denied her right to
respond – Whether appellant prejudiced by respondent being
allowed to speak in Chinese dialect without an interpreter

Legal Profession – Professional discipline – Misconduct – Solicitor

Professional Practice 532

continuing to act for client despite discharge by client - Notice of

change of solicitors not filed – Whether amounting to misconduct –
Whether conduct unbefitting of an advocate and solicitor – Legal
Profession Act 1976

S 94(3)(n) ỡ (o) – Legal Profession Practice and Etiquette) Rules

1978 r 16

• Gurbachan Singh s/o Bagawan Singh ỡ Orsv Vellasamy s/o

Pennusamy ỡ Ors (on their behalf) and for the 213 sub-purchase of
plots of land known as PN35553, Lot 9108, Mukim Hutan Melintang,
Hilir Perak) and other appeals [2015] MLJ 773

Client- Dispute over estate land – Allegation that respondent had

agreed to purchase land made deposit payments – Solicitor bid for
land under own name and succeeded – Claim that land was his and
transferred ownership into new company – Solicitor informed
purchasers that he was not their solicitor – Suggested purchasers to
buy back their portions of estate land – Solicitor-client relationship –
Whether to be determined only by reference to retainer – Whether
fiduciary entitled to restitution – Whether court entitled to lift
corporate veil of company in order to do justice

• Dato’ Sri Dr Muhammad Shafee Abdullah v Majlis Peguam (Bar

Council) [2015] 5 MLJ 20

Legal Profession – Professional discipline – Misconduct – Appellant

found guilty of misconduct and fined for breaching Legal Profession
(Publicity) Rules 2001 – Appellant alleged to have publicised himself
and his practice in two articles of an interview with him published in
newspaper – Bar Council alleged appellant’s remarks went beyond
scope of ‘approved information’ a lawyer could give in a media
interview under r 2 of 2001 Rules – Whether appellant had in fact
published his practice or merely responded to questions posed to
Professional Practice 533

him by interviewer – Whether Bar Council and Bar’s Disciplinary

Board and Committee failed to consider scope of journalist’s
questions to appellant, purpose of interview and message articles
sought to convery

• Bonifac Lobo a/l Robert V Lobo v Wong Wooi Meng [2015] 8 MLJ
338

Legal Profession – Practice and etiquette – Professional etiquette –

Whether advocate and solicitor who was plaintiff in suit could
represent himself as counsel when he had already appointed firm of

solicitors to act for him – Whether plaintiff should discharge his

solicitors ang given notice that he would act in person if that was his
intention – Whether defendant would be disadvantaged if plaintiff
allowed to act as his own counsel in addition to being represented
by advocate from his solicitor’s firm – Whether plaintiff’s wanting to
act for himself breached rr 27 (a) and 28 (a) of the Legal profession
(Practice and Etiquette) Rules 1978 as he had pecuniary interest in
subject matter of suit and was also main witness to material and
disputed questions of fact at trial – Rule of Court 2012 O 64 r 3

• Tan Sri Muhammad Shafee Abdullah v Tommy Thomas & Ors [2018]
12 MLJ 98 – right to sue

• Perbadanan Pengurusan 3 Two Square v 3 Two Square Sdn Bhd

[2018] 10 MLJ 648 – conlict of interest

• Teoh Soo Beng v Golden Castle City Sdn Bhd & Ors [2018] 2 CLJ
631 – discharge of solicitor – conflict of interest – whether therewas
a liaison between solicitors and petitioner

• Majlis Peguam v Cecil Wilbert Mohanaraj Abraham [2018] 9 CLJ 622

Professional Practice 534

[2018] 9 CLJ 622 – disciplinary proceedings – complain against

advocate and solicitor that involvement in or responsible for
statutory declaration affirmed by witness in trial

• Adi Radlan Abdul Rahman v Chai Kim Ngeok [2018] 1 CLJ 481 –
misconduct – allegation that advocate and solicitor grossly
overcharged client in absence of written agreement

• Dinesh Kanavaji A/L Kanawagi & Anor v Ragumaren A/L N Gopal

(Majlis Peguam, intervener) [2018] 2 MLJ 265 – acting in a manner
unbefitting of an Advocate & Solicitor – misconduct

• Ramasamy A/L Amaippan v Kwan Lee Pin (Majlis Peguam Malaysia,

intervener) [2018] 6 MLJ 528 – advocate and solicitor failed to
return overpayment to client

• Iszam Kamal bin Ismail v Prestij Bestari Sdn Bhd (Bar Council
Malaysia, intervener) [2018] 5 MLJ 536 – solicitor released money
held as stakeholder to his clerk – professional misconduct

• David Cheah Seng Chye v So Miau Song & Ors [2018] 5 CLJ 83 –
conflict of interest – solicitors had acted for previous trustees
whether solicitor privy to certain information and instruction

(h) Attire

• Bar Council Circular (No. 4)

• rule 30 LPPER

(i) Allegations of fraud

• Abdul Malik v Asnah bte Hamid [1985] 2 CLJ 364

Professional Practice 535

3. General Conduct

(a) Legal Profession to be advocate's only profession – section 30 (1) (c) LPA

• Re An Advocate (1964) 30 MLJ 1

• Syed Mubarak Syed Ahmad v Majlis Peguam Malaysia [2000] 3 CLJ
659, [2000] 4 MLJ 167

(b) Fees for litigious matters

• Rule 11 LPPER
• Remuneration of advocates and solicitors in relation to contentious
and non-contentious business and taxation of costs sections
94(3)(m), 112 – 136 LPA

• Majlis Daerah Hulu Terengganu v Tenaga Nasional Berhad (2019) 6

MLJ 720

(c) Solicitor having personal relationship with clients, solicitor deriving

pecuniary interest in case – rules 3 & 27(a) LPPER

• Saraswathy Devi Nadchatiram v Vijayalakshmi Devi Nadchatiram

[1998] 1 CLJ 1035 (CA)

Change of Solicitor - No Form 138 filed – rules 49 & 60A LPPER -

Whether has locus standi to appear

• Yukilon Manufacturing Sdn Bhd Anor v Dato' Wong [1997] 4 CLJ 209

• Concrete Engineering Products Bhd v Merces Builders Sdn Bhd &

Anor [2004] 3 MLJ 367 - Change of solicitors - Failure to comply
with O 64 - Whether substantial miscarriage of justice caused by
non-filing and service of notice of change of solicitors
Professional Practice 536

Change of solicitors - Failure to comply with Order 64 Rules of

Court 2012 (‘RC’) - Whether substantial miscarriage of justice
caused by non-filing and service of notice of change of solicitors

Order 64 r. 1(1) RC clearly sets out the necessary actions of a

party that wish to change his solicitor and under O. 64 r. 1(1),
unless and until a notice of change of solicitor had been filed, the
former solicitor shall, subject to rr. 4 and 5, still be considered the
solicitor of the party until the conclusion of the cause or matter.
Where there is a change of solicitor, the notice must (to be filed
only at the Registry) acquiesce to statutory specifications, and
also be served on every other party to the cause or matter
including the former solicitor.

• Yau Jiok Hua v Syarikat Kilang Batu-Bata Cip Siah Sdn Bhd [1999] 1
CLJ 239 - whether gross sum bill amounts to bill of costs - ss. 132,
124(l), 126 & 128(l)

• John Ang & Jega v Kulaisingam Sinatamby [2001] 2 CLJ 198, [2001]
2 MLJ 605 - Gross bill of cost - Application for taxation - s. 126 or s.
121 applies

• United Malayan Banking Corp v Syarikat Perumahan Luas Sdn Bhd

[1991] 3 MLJ 181 - Solicitor has to deliver a detailed bill of charges
for taxation upon request of client - ss. 121 (1), 131 & 233 LPA

• Vije & Co v Co-operative Central Bank Ltd [1991] 3 MLJ 432

Time limit to dispute quantum of bills and to request for taxation -

section 128 LPA

(d) Trust money and set-off

• Leong Chiew Keong & Anor v Renaissance Resources [1999] 5 CLJ
226 - Agreement on cost - Cost below scale fees on non-contentious
matters - s. 114(l) - Prohibits
Professional Practice 537

• Perusahaan Petanda Bintang Sdn Bhd v Asbir, Hira Singh & Co

[1995] 2 MLJ 455 - whether borrower may seek order for delivery of
bill of costs and taxation against bank's solicitor - ss. 126 and 130
LPA

• AJ Ariffin, Yeo & Harpal v Dr Shaharuddin Dato' Haji Aziz [2000] 3

CLJ 430

Deposit Interest - Solicitors Account (Deposit Interest) Rules 1990

• GT Rajan v Lee Yoke Lay & Anor [1994] 2 MLJ 315 - whether
solicitor who acts as stakeholder is under a duty to account for
interest earned on moneys held by him as stakeholder - s. 93(2) LPA

• Joseph Singaram Pillai v Malaysian Bar [1994] 3 MLJ 57 - whether

Bar Council could exempt plaintiff from strict compliance with rules
relating to submission of accounts - Solicitors' Accounts Rules 1990

(e) Maintenance of Clients' Account

• Solicitors' Accounts Rules 1978, rules 3 & 7 LPPER

o Gnanasegaran a/l Pararajasingam v PP [1997] 3 MLJ 1

• Section 94(3)(d), (n) & (o) LPA

o Selvaratnam a/l Vellupillai v Dr Jayabalan Karrupiah [2009] 1

MLJ 794

• Remuneration – Bill of costs

o Shankar RP v Vertime [2012] 7 MLJ 198

Legal Profession – Remuneration – Bill of costs – defendants

signed retainer to engage plaintiff for various legal work –
Whether defendants bound by terms of retainer – Whether
allegations of breach of retainer and negligence by plaintiff
bona fide – Whether plaintiff entitled to tax bill of costs
Professional Practice 538

• Duty of Advocate to keep up to date with recent reported cases

o Copeland v Smith & Anor [2000] 1 All ER 457

(f) Contingency Fees

• rule 27 LPPER

• cf. section 114 (2) LPA

o Rhina Bar v Koid Hong Keat [1992] 3 CLJ 1465, [1992] 2 MLJ
455

Complaint re alleged oral agreement for payment of 10% of

accident claims breech of etiquette – employment of a tout
o RS Muthiah v. Pembinaan Fiba Sdn Bhd [2004] 2 CLJ 917

Pecuniary interest - Company secretary of defendant acting as

solicitor for defendant - Whether solicitor pecuniarily interested
in outcome of matter before court - Whether r. 27(a) Legal
Profession (Practice & Etiquette) Rules 1978 would debar
solicitor from appearing for defendant Company - Meaning of
pecuniary interest - Any interest relating to money or money's
worth - Any interest that can be converted into money - Any
interest the object of which is to make money

o Maris Housing Sdn.Bhd & Anor v Lee Seng Wai [2004] 1 CLJ
654

Pecuniary interest - Defendant acting as counsel for co-

defendants - Whether sufficient to show defendant 'pecuniarily
interested ' in outcome of suit brought by plaintiff - Whether
plaintiff must establish that defendant 'directly pecuniarily
interested' – Whether defendant only ‘indirectly pecuniarily
interested' - Legal Profession (Practice & Etiquette) Rules 1978,
r.27
Professional Practice 539

o Koh Mui Tee (practising under the name and style of Koh ỡ
Assoc) v Chin Lee ỡ Ors and another appeal (the administrators
of the estate of Chin Kah Tan @ Tukan Chan, deceased)
[2015] LMJ 388

Disciplinary board/ committee – Appeal – Whether client

agreed to contingency fee – Whether contingency fee was
agreed to in letter of appointment – Whether disciplinary
proceedings was flawed because testimony not given on oath –
Whether disciplinary committee failed to comply with r 26(2)
of Legal Profession Rules (Proceedings of the Investigating
Tribunal and Disciplinary Committee) 1994 – Whether
disciplinary committee had jurisdiction to determine validity of
fee agreement – Whether penalty of RM10,000 excessive –
Whether professional misconduct established – Whether
disciplinary proceedings was contrary to spirit and effect of
settlement reached between parties – Whether appellant must
file affidavit containing record of appeal – Whether disciplinary
board can accept report submitted out of time – Whether
extensions of time can be allowed by Disciplinary Board –
Whether injustice coursed to appellant by grant of extensions
and delay – Legal Profession (Disciplinary-Proceedings)(Appeal)
Rules 1994 r 5

o Tetuan Kumar Jaspal Quah & Aishah v Far Legion Sdn Bhd &
Ors [2007] 3 MLJ 305

Legal Profession - Solicitor's undertaking - Construction of

undertaking - Undertaking to pay client's costs to former
solicitors - Whether new solicitor now had a pecuniary interest
in the matter - Whether disqualified from acting on the matter -
Legal Profession (Practice and Etiquette) Rules 1978 r 27(a),
Professional Practice 540

Rules of the High Court 1980 O. 92 r. 4.

Statutory Interpretation - Construction of statutes - Purposive

approach - Professional fees - Whether bizarre and absurd
results could ensue without a purposive approach - Pecuniary
interest envisaged by Legal Profession (Practice and Etiquette)
Rules 1978 r 27(a)

(g) Advocate and Solicitor not to appear in a case where he is a witness

• rule 28 LPPER
• Abdul Halim bin Abdul Hanan & Ors v Pengarah Penjara Taiping &
Ors [1996] 4 MLJ 54
• Sykt Pengangkutan Sakti Sdn Bhd v Tan Joo Khing t/a Bengkel Sen
Tak [1997] 5 MLJ 705
• Zakiah Abu Mansor v Samsuri Welch Abdullah [1998] 5 CLJ 816 -
Affidavit by Solicitor - Rule 28
• Paruvathy Palany v Sathiaseelan Govindasamy [1999] 5 MLJ 151,
[1999] 6 CLJ 113 - Affidavit affirmed by Counsel
• Hong Kong Bank Malaysia Bhd v Mohammed Noor Tamliho [2002] 3
CLJ 139 - Plaintiff counsel attested plaintiff's and defendant's
signatures in relevant charge documents - whether indication of
conflict of interest
• Perak Hanjoong Simen Sdn Bhd v Perindustrian Tenaga Mix Sdn Bhd
[2008] 8 MLJ 567
• Quah Poh Keat & Ors v Ranjit Singh a/l Taram Singh [2009] 4 MLJ
293

(h) Liability as fiduciary

• Ong Guek Siang & Anor v Asset First Sdn Bhd & Anor (Prasad
Abraham J) [2012] 10 MLJ 61
• Datuk M Kayveas & Anor v Bar Council [2013] 5 MLJ 640
Professional Practice 541

(i) Accountant's Report

o section 79 LPA

o Tanjong Marina Management Sdn Bhd v Penang Port Sdn Bhd

[2014] 10 MLJ

o Legal Profession – Breach of rules of etiquette – Conflict of

interest – Application to prevent firm of advocates and
solicitors form representing plaintiff company – Partner in legal
firm also executive director of plaintiff – Partner actively
involved in transaction and dispute between plaintiff and
defendants – Whether direct conflict of interest – Whether
direct pecuniary interest in case – Whether whole legal firm
disqualified from representing plaintiff – Legal Profession
(Practice and Etiquette)
Rules 1978 rr3, 4, 5(a), 7(b), 27, 28, 29 & 32 – Legal
Profession Act 1976

(ii) Issue of Sijil Annual

o Section 32 LPA

o Yip Shou Shan v Majlis Peguam [1994] 3 MLJ 82 (SC); [1994] 2

MLJ 149 (HC)
o Chin Siew Chin (f) (suing as administratrix of the estate of
Fabian Lim Ann Hoaw) v Lim Heng Choo [2010] 5 MLJ 567
o Mastika Jaya Timber Sdn Bhd v Shankar a/l Ram Pohumall
[2010] 5 MLJ 707 - Legal Profession - Remuneration -
Counsel's fees - Oral agreement contemplating payment in
event of success in suit - Whether such agreement
champertous, illegal and against public policy - Whether such
oral agreement enforceable
Professional Practice 542

Legal Profession - Retainer - Written retainer - Whether oral

contract for fees could contradict written retainer - Whether
oral contract for fees contravened s 15 of the Advocates
Ordinance of Sarawak (Cap 110) - Whether evidence of such
oral contract barred under s 92(d) of the Evidence Act 1950

(iii) Solicitors undertaking

• Semenda Sdn Bhd & Anor v CD Anugerah Sdn Bhd & Anor
[2010] 4 MLJ 157

(iv) Liabilities as fiduciary

• Vellasamy a/l Pennusamy & Ors (on their behalf and for the
213 sub-purchases of plots of land known as PN 35553, Lot
9108,
• Mukim Hutan Melintang, Hilir Perak) v Gurbachan Singh a/l
Bagawan Singh & Ors [2010] 5 MLJ 437

(i) Duty of Confidentiality

• rule 35 LPPER
• sections 126 & 129 Evidence Act 1950
• Rakusen v Ellis Munday and Clarke [1912] 1 Ch 831
• RS Muthiah v Pembinaan Fiba Sdn Bhd [2004] 2 CLJ 917 - Conflict of
interest - Defendant's present solicitor having previously acted for
plaintiff - Access to documents and confidential information
pertaining to plaintiff - Whether there could be conflict of interest
such that justice would not be seen to be done

(j) Communications with the other party represented by advocate/solicitor

• rule 42 LPPER
Professional Practice 543

(k) Advocate & Solicitor not to actively carry on any trade

• rule 44 LPPER

(l) Advocate and Solicitor not to publish photograph and not to solicit
reporting

• rules 48 & 49 LPPER

• see also Legal Profession (Publicity) Rules 2001

(m) Touting

• rule 51 LPPER
• Rhina Bar v Koid Hong Keat [1992] 3 CLJ 1465; [1992]2 -MLJ 455
• Mohamed v Alaga & Co (a firm) [1999] 3 All ER 699
• Selected Reading: Rahim Said, Touting Among Solo Lawyers in
North Malaya [1980] 1 MLJ xii
• Bar Council Ruling 14.23 : Payment for introducing clients.

(n) Change of Solicitors

• Rule 54 LPPER
• Duty to inform

o Jaya Harta Realty Sdn Bhd v Koperasi Kemajuan Pekerjaan Bhd

[2000] 8 CLJ 246

(o) Obtaining Judgment by Default

• Rule 56 LPPER
• Kewangan Bersatu Bhd v Yap Ah Yit & Ors (1999) 1 CLJ 429 -
Failure to give 7 days' notice
• RHB Finance Bhd v CN Corporate Network (M) Sdn Bhd [2000] 5
MLJ 686
Professional Practice 544

(p) Objection to admissibility of insufficiently stamped documents

• rule 58 LPPER

(q) Branch Offices

• rule 59 LPPER

4. Professional negligence

• Malaysian Bar - Professional Indemnity Insurance

• Tetuan Bakar & Partners v Malaysia National Insurance Bhd & Ors
[2010] 4 MLJ 493

Legal Profession – Advocates and solicitors – Professional negligence

– Insurance coverage against civil liability – Malaysian Bar
Professional Indemnity Insurance Scheme Indemnity limit of RM2m
in first term of insurance extended to RM7m for second and third
terms – Professional negligence during currency of first term –
Dispute on quantum of indemnity

• Datuk Seri Anwar bin Ibrahim v Public Prosecutor [2014] 3 MLJ 882

Criminal Procedure – Prosecution – Deputy public prosecutor –

Disqualification – Application to disqualify advocate and solicitor
from being appointed as deputy public prosecutor to conduct appeal
– Principles application in disqualifying counsel – Whether applicant’s
right to fair trial and equal treatment under arts 5 and 8 of the
Federal Constitution prejudiced – Whether appointment in breach of
r 28(c) of the Legal Profession (Practice and Etiquette) Rules 1978

5. Solicitors Remuneration Order 2005 (SRO)

• Order 7 SRO

• Rule 6.08 Bar Council Rulings 2007

Professional Practice 545

o Tiagaraja a/l Palaniandy (as the administrator for the estate of

Palaniandy a/l Pichay Karan, deceased) v Mogandas a/l Maniam (as
the personal representative of Maniam a/l Kathan, deceased) & Anor
[2011] 7 MLJ 326

6. Pupillage

• Re A Panjaram [1992] 1 MLJ 467

Legal Profession – Pupillage – Conduct of matters on behalf of master –

Original order permitting pupil to conduct matters on behalf of master –
Application by master for variation of original order – Whether High Court
has jurisdiction to vary order permitting pupil to conduct cause or matter
in open court in Sessions Court – Legal Profession Act 1976 s. 36(2) & (5)

• Akberdin bin Hj Abdul Kader & Anor v Majlis Peguam Malaysia [2003] 1
MLJ 1

Legal Profession – Practice of law – Chambering pupil – Qualification of

master – Master to have been in active practice for a total period of not
less than seven years – ‘Active practice’, definition of – Seven years
period, how calculated – Legal Profession Act 1976 s. 13 (1)

E. Acting for More Than One Party

• Aw Sing Moey & Ors v Melombong & Perumahan Sdn Bhd [1999] 4 CLJ
721, [1998] 7 MLJ 239
Rule 3, 4 & 5 - Conflict of interest - Acting for both parties - Disqualify
• Smith v Mansi [1962] 3 All ER 857
• Section 84 LPA
• Ong Kim Khoon v Gaya Filem Bhd [1979] 1 MLJ 79
• Yong & Co v Wee Hood Teck Dev Corpn [1984] 2 MLJ 39
• Gibb & Co v MBSB [1982] 1 MLJ 271
• Che Ahmad Haji Che Daud & Ors v DCB Bank Bhd [2001] 5 CLJ 333 - Rule
Professional Practice 546

5(a)
• Kayla Beverly Hills (M) Sdn Bhd & Anor v. Quantum Far East Ltd & Ors;
Uma Devi R Balakrishnan (Third Party) [2003] 4 CLJ 587
Liability as fiduciary - Conflict of interest and duty-Counsel for third party
acting for plaintiffs in another related suit - Third party also gave
conflicting evidence in both suits - Whether counsel should be disqualified
from representing third party - Legal Profession (Practice and Etiquette)
Rules 1978, rr. 5(a) & (b)(i)`

• Sinwara Sdn Bhd v Maris Housing Sdn Bhd & Ors [2003] 6 MLJ 771

Duty to client - Counsel having an interest in the litigation - Counsel not a

party to the Litigation - Whether counsel had locus standi to
appear - Whether counsel should be barred from representing
client. - Etiquette Rules ss. 3, 4, 5, 27

• Standard Chartered Bank Malaysia Bhd v Ting Kah Kuong [2008] 7 MLJ
508
Legal Profession - Conflict of interest - Common solicitor - Solicitor
mistakenly charged land to bank based on lower amount - Solicitor
subsequently affirmed affidavits against client's case to explain mistake -
Whether solicitor merely acting as witness to transactions - Whether
conflict of interest

• Ranjit Singh a/l Taram Singh v Quah Poh Keat & Ors [2009] 4 MLJ 433

Legal Profession – Discharge of solicitor – Conflict of interest –

Disqualification of legal firm from acting as solicitors – Solicitors involved
in process leading to exclusion of plaintiff from partnership – Whether
solicitors were material witnesses – Whether material or disputed facts
existed – Whether accepting brief may result in difficulty to maintain
professional independence – Legal Profession (Practice and Etiquette)
Rules 1978, rr 5(a) & 28(a)

• Tunku Moksin bin Tunku Khalid v Bukit Barisan Sdn Bhd & Ors [2009] 9
Professional Practice 547

MLJ 528

Legal Profession – Conflict of interest – Professional conduct – Solicitor

presided as chairman of company’s EGM – Whether there was personal
relationship – Whether conduct contravened r 3 of the Legal Profession
(Practice and Etiquette) Rules 1978 – Whether his legal firm should be
barred from representing respondent company

• Lee Chee Kiang v Johnson Tan Teck Seng & Anor [2011] 8 MLJ 297

Conflict of interest - Professional conduct – Common solicitor – Acting as

common solicitor for parties in conveyancing transaction – Nature of duty
of care owed

Duty of care - Duty to client – Conveyancing transaction – Whether duty

of care owed to client – Test for standard of skill and care expected of
legal practitioners – Whether duty differs according to client’s education
background – Whether solicitors in Sabah owed duty to check on
authenticity of powers of attorney – Advising release of purchase
consideration before memorial number obtained from land office for
lodgement of memorandum of transfer

• Tiaganraja a/l Palaniandy (as the administrator for the estate of

Palaniandy a/l Pichay Karan, deceased) v Moganadas a/l Maniam (as the
personal representative of Maniam a/l Kathan, deceased) & Anor [2011] 7
MLJ 326

Practice of Law – Practice and Etiquette – Solicitor (sole proprietor) acted

for both parties in two sale transactions – Breach of Order 7 of SRO 2005
and Rule 6.08 of Bar Council Rulings 2008

• Note: Sabah, East Malaysia

Case: Lee Chee Kiang v Johnson [2011] 8 MLJ 297

Professional Practice 548

(No reference to any set of Rules similar to Legal Profession (Practice and
Etiquette) Rules 1978 as applicable in West Malaysia. But note judicial
concern over conflict of interest and duty of care to clients.

F. Disciplinary Proceedings (Note: Amendment to Part VII LPA)

1. Rules regulating the professional practice, etiquette, conduct and discipline of

advocates and solicitors - the disciplinary procedure - sections 77(3), 88A, 93 -
103J LPA

• Vadiveloo v Thanaletchumy & Anor [1992] 1 MLJ 623

- Whether disciplinary committee became functus officio after dismissing
complaint
• Majlis Peguam Malaysia & Ors v Au Kong Weng Joseph [1993] 2 MLJ 57 -
Time limit under section 98 of the LPA is mandatory

• Yip Shou Shan v Majlis Peguam [1994] 2 MLJ 149

- Whether disciplinary action appropriate when a plaintiff was not in
possession of a practising certificate - s. 88A LPA

• Kasinathar Balendra Thuraisingam v Majlis Peguam Malaysia [2001] 4 CLJ

160 (Yip Shau Shan's case referred)
- Practising Certificate - Partnership between solicitors - Dishonesty of one
partner - Whether innocent partner jointly liable

• Bank Bumiputra (M) Bhd v Mohd Ibrahim bin Salleh [2000] 5 MLJ 778
Majlis Peguam v Jayapalan Mahesan [2000] 5 MLJ 593

• Re Howard E Cashin [1989] 3 MLJ 129 - Misconduct

• Gana Muthusamy v Tetuan LM Ong & Co [1998] 4 CLJ 878

• Law Society of Singapore v Khushvinder Singh Chopra [1999] 4 SLR 775

- Solicitor also principal in same transaction with client

• Thavanathan a/l Balasubramaniam v Majlis Peguam Malaysia [2003] 3

MLJ 341
Professional Practice 549

- Striking off the Roll - appeal against decision of Disciplinary Board

• Thavanathan a/l Balasubramaniam v Majlis Peguam Malaysia [2010] 3

MLJ 316 – Federal Court

• Pusphpam Subramaniam v Majlis Peguam Malaysia & Anor [2006] 4 MLJ

344
- Proceeding before Disciplinary Board - refusal of adjournment - right to
be heard denied - suspension order made in appellant's absence

• Nadarajan s/o Verayan v Hong Tuan Teck [2007] 7 MLJ 640

- Disciplinary proceeding against Advocate & Solicitor - Striking of the Roll
- Appeal to High Court out of time

• Low Yien Kwee & Ors v Ever Noble Sdn Bhd [2008] 5 MLJ 379

• Choong Yik Son v Majlis Peguam Malaysia [2008] 7 MLJ 215 - Complaint
against solicitor - Complaint subsequently withdrawn - Bar Council
intervened and requested the Disciplinary Board to activate an
investigation - LPA s. 100

• Selvaratnam a/l Vellupilai v Dr Jayabalan Karrupiah [2009] 1 MLJ 794 –

Federal Court

• Lim Eye Thun v Majlis Peguam Malaysia & Anor [2010] 2 MLJ 444

• Bar Malaysia v Neasarani T Singara Thevar & Anor (2015) 8 CLJ 634

• Liaw Chee Huey v Wong Chin Heon (2016) 7 MLJ 95 – the extent of the
court’s scrutiny of the discplinary process

• Ramasamy a/l Amaippan v Kwan Lee Pin (Majlis Peguam Malaysia,

Interverner) (2017) MLJU 783, the Court of Appeal held that the word
‘shall’ in Rule 24 of the Legal Profession (Disciplinary Proceedings)
(Investigating Tribunal and Disciplinary Committee) Rules 1994 is
mandatory and requires strict compliance by the DC

• Batu Malay a/l Thandy v. Saulinardi & Anor (2015) 2 MLJ 364

• Majlis Peguam Malaysia v Rajehgopal a/l Velu & Anor (2017) 1 MLJ 596
Professional Practice 550

“that under the current provisions of s. 103D(1) of the LPA, the DB shall
record the reasons if it rejects the recommendation made by the DC. It is
a mandatory requirement. However, it must be noted that the said
requirement was only inserted into the section by an amendment to the
LPA vide the Legal Profession (Amendment) Act 2012 (Act A1444) which
came into effect on 3 June 2014 vide P.U. (B) 262/2014. There was no
indication that the amendment was to take effect retrospectively”.

2. Appeals – section 103E LPA

• Selvamary v Rethinasamy [1991] 1 MLJ 156

- Time limit for appeal

• Vadiveloo v Thanaletchumy & Anor [1992] 1 MLJ 623

- Where there was no appeal against order of Disciplinary Committee's
dismissal of complaint, whether the Bar Council could act on same
complaint and apply to appoint a second Disciplinary Committee - ss. 10
1(3), (4) and 102(l)

• Teoh Hooi Leong v Bar Council, Malaysia [1991] 2 MLJ 190

- Restoration of name to Roll of advocates and solicitors - s. 107

• Hoo Lin Coln v Wong Weng Woh & Anor [2007] 1 MLJ 56
- Appeal against order of Disciplinary Board/Committee

• Dr Trilochan Kaur d/o Mohan Singh v The Malaysian Dental Council &
Anor [2009] 4 MLJ 244

Legal Profession – Professional discipline – Practice and Etiquette Rules –

Application for disqualification of solicitors – Active participation by
advocate and solicitor and legal firm in disciplinary enquiry proceedings
before Dental Council – Whether improper to act for Dental Council in
judicial review proceedings challenging its decision – Advocate and
Solicitor implicated directly – Whether position akin to a witness –
Whether difficult to maintain professional independence – Legal
Profession (Practice and Etiquette) Rules 1978 rr 3,4, & 5
Professional Practice 551

• Trikkon Sdn Bhd v Dato' Mahinder Singh Dulku (Messrs Mahinder Singh
Dulku & Co) [2009] 3 MLJ 98

Legal Profession - Professional discipline - Misconduct - Allegation of

failure to pay purchase price of apartment - Whether established -

Complaint filed after lapse of more than nine years - Whether reasons for
delay justified - Whether respondent guilty of misconduct that would
warrant disciplinary action – LPA

• Trikkon Sdn Bhd v Mahinder Singh Dulku (practising at Messrs Mahinder

Singh Dulku & Co) [2010] 8 MLJ 239

- Legal Profession - Disciplinary proceedings - Appeal to High Court -

Complaint relating to matters arising before amendment of s. 103E LPA -
Appeal only heard after amendment to s 103E - Whether post amendment
provisions to apply - Whether appeal to be heard by three judges or by
single judge - Legal Profession (Amendment) Act 2006 s. 35(1)

Legal Profession - Disciplinary proceedings - Disciplinary board - Board's

discretion in giving grounds for decision - Whether board may dismiss
complaint merely by stating that complaint had no merit - Whether court
could interfere with board's desicion

• Mogana Sunthari a/p Subramaniam v Khadijah bt Yusof & Anor [2009] 3

MLJ 111

Legal Profession - Professional discipline - Suspension from practice -

Whether disciplinary board entitled to include appellant as respondent in
complaint - Whether decision of Disciplinary Board made in exercise of the
Legal Profession (Amendment) Act 2006 was ultra vires – LPA ss.
99(4)(a), 103D

• Aziana bt Uda Bahari v Gan Kong You [2009] 3 MLJ 495

Legal Profession - Professional discipline - Misconduct - Investigating

Tribunal found no substantiation of allegations - Disciplinary Board
Professional Practice 552

however found applicant guilty of misconduct - Whether conduct of

application unbefitting of an advocate and solicitor - Whether conduct
brought or was calculated to bring legal profession into disrepute -
Whether dishonest intention established - Whether Disciplinary Board
bound by recommendation of Investigating Tribunal

• Harpal Singh Grewal (from Messrs AJ Ariffin, Yeo & Harpal) v Lembaga
Tatatertib Peguam-Peguam & Anor [2011] 3 MLJ 536

Legal Profession – Professional discipline – Disciplinary Board – Decision

of DB to constitute Disciplinary Committee to conduct investigation into
complaint against solicitor – Appeal against decision – Whether there was
withdrawal of complaint – Whether DB’s decision to constitute Disciplinary
Committee proper – Whether DB acted ultra vires the LPA – Whether
amended LPA applied to current appeal – Whether instant appeal was
incompetent and premature – LPA ss. 102(2) & 103B – Legal Profession
Amendment Act 2006 ss. 35 & 103E

• How @ Ho Peng Kwang v Tricorp Properties Sdn Bhd (Majlis Peguam

Negara, intervener) [2011] 9 MLJ 687

Legal Profession – Professional discipline – Misconduct – Professional

misconduct – Breach of solicitor’s undertaking – Suspension from practice
– Whether disciplinary board’s order justified in circumstances

• Majlis Peguam v Poh Fook Yuen & Anor [2012] 5 MLJ 18

Legal Profession – Malaysian Bar – Legal entity – Malaysian Bar a body

corporate represented by Majlis Peguam – Whether Majlis Peguam ‘party
aggrieved’ when Disciplinary Board prevented from carrying out its
responsibilities

• Ragumaren a/l N Gopal v Kanawagi a/l Seperumaniam [2013] 4 MLJ 1

(CA)
Professional Practice 553

Legal Profession – Disciplinary board – Appeal against decision of

disciplinary board – Appeal against penalties for complaints by complainer
– Cross-appeal by complainee two years after decision of disciplinary
board of disciplinary board – Whether complainee had right to make
cross-appeal against decision of disciplinary board - Whether there was
inordinate delay in filing cross-appeal – Legal Profession Act 1976 s 103E
– Legal Profession (Disciplinary Proceedings) (Appeal) Rules 1994

• Majlis Peguam v Cecil Wilbert Mohanaraj Abraham (2019) 5 MLJ 159

3. The case for a self-regulatory profession

• W E Balasingam v The Bar Council [1986] 1 MLJ 334

• Chan Chow Wang v Malaysian Bar [1986] 2 MLJ 159
• Choong & Co & Ors v Lembaga Tatatertib Peguam-Peguam [2004] 1 CLJ
574

- Professional discipline - Application to restrain Disciplinary committee

from hearing complaint, Complaint made by Bar Council - Whether
applicants should exhaust domestic remedy provided under LPA before
coming to court

• Mohd Faisal bin Abdullah v Abdul Hamid bin Abdul Kadir o/b Dayalitar Sdn
Bhd & Anor [2013] 8 MLJ 243

Legal Profession – Disciplinary committee – Powers of disciplinary

committee – Arbitration sum not released by solicitor struck off roll –
Application to set aside order to struck solicitor off roll – Whether court
can interfere in findings of facts by disciplinary committee

• Charan Jit Singh a/l Santokh Singh v Majlis Peguam Malaysia & Anor
[2013] 9 MLJ 400

Legal Profession – Professional discipline – Reinstatement – Restoration of

name Roll of Advocates and Solicitors – Applicant struck off the Roll
pursuant to dishonour of cheque issued to client from firm’s client’s
Professional Practice 554

account – No evidence of dishonest – Whether applicant’s ex-wife’s

objection to readmission was proper – Whether applicant’s referees were
not credible – Whether applicant had lost knowledge of law – Whether
applicant had received sufficient punishment and fully rehabilitated –
Whether fair and reasonable for applicant to be restored to the Roll –
Legal Profession Act 1976 s 107

• Ding Siew Ching v Ling Peek Hoe [2014] 2 MLJ 715

Legal Profession – Professional discipline – Suspension from practice –

Appeal against decision of disciplinary board was dismissed by the High
Court – Duty owed by disciplinary board to safeguard and protect
members of public – Whether disciplinary committee had exceeded
parameters of complaint against appellant – Whether findings of
disciplinary committee inconsistent – Whether the High Court judge’s
failure to hand down written grounds of judgement constituted sufficient
reason for appellate intervention – Whether punishment excessive or
disproportionate to degree of professional misconduct of appellant

• Mohamad Ramli bin Abdul Manan v Lim Chee Wee (President of the
Malaysian Bar) [2014] 6 MLJ 560

Legal Profession – Disciplinary Proceedings – Disciplinary board (‘DB’) –

Lawyer appealed to High Court against decision of DB citing person who
was President of Malaysian Bar as respondent – Whether High Court right
to have struck out president as respondent – Whether Bar Council was
proper respondent – Whether complaint to DB emanated from bar Council
although complaint letter signed by president of Malaysian Bar – Whether
High Court right to have struck out appeal without hearing merits because
appeal become defective with no party as respondents

• Poh Chee Seng v Majlis Peguam [2015] 10 MLJ 8

Legal Profession – Professional discipline – Mis conduct – Breach of

solicitor undertaking – Whether disciplinary board had erred in its findings
– Breach natural justice – Whether appellant was denied right of hearing
Professional Practice 555

– Whether Bar Council was wrong to pursue complaint after complainant

had withdrawal complaint – Whether appellate interference was
warranted

G. Role and Immunity of an Advocate and Solicitor

1. Duties of an Advocate and Solicitor

• Tan Ah Chim & Sons Sdn Bhd v Ooi Bee Tat & Anor [1993] 3 MLJ 633
Duty of solicitor as an officer of the court to inform client of court order

• Wong Sin Chong & Anor v Bhagwan Singh & Anor [1993] 3 MLJ 679 -
Duty of solicitor to do justice greater than duty to represent client

• Ong Chuan Huat Sdn Bhd v Mohd Jais bin Abdullah [1991] 3 CLJ 1830
Solicitor to exercise care when attesting documents

• Lai Cheng Chong v Public Prosecutor [1993] 3 MLJ 147 - Liability as

officer of court – s. 35 LPA

• Dato' Wong Gek Meng v Pathmanathan Mylvaganan & Ors [1998] 1 CLJ
625 - Misconduct - Deceptions - Bringing of vexatious & frivolous
proceedings

• Darshan Singh Khaira v Eubishi (M) Sdn Bhd [ 1998] 7 MLJ 178, [1999] 8
CLJ 94 (Additional Cases) - Non disclosure by Counsel of order granted in
earlier proceeding which was material for consideration in later ex parte
proceedings misleading court – sentence

• Mohd Nor Dagang Sdn Bhd v Tetuan Mohd Yusof Endut [2001] 5 MLJ 561
[2001] 3 CLJ 364 (HC) - Duty of Care - standard of care

• Jaya Harta Realty Sdn Bhd v Koperasi Kemajuan Pekerja-pekerja Ladang

Bhd [2000] 8 CLJ 246 (HC) - Duty to opposite party - Duty of former
solicitor and new solicitors to inform new hearing date - Duty of new
solicitors to inquire whether garnishee informed - whether new solicitors
negligent in proceeding with hearing
Professional Practice 556

• Lai Foh & Sons Sdn Bhd v Skrine & Co [2001] 3 CLJ 185 (HC) - Solicitor
released land Title to third party who fraudulently charged to financial
institutions and absconded with loan monies - whether solicitor's duty of
care should extend to tortious acts of third-party wrongdoer

• Metrowangsa Asset Management Sdn Bhd v Ahmad bin Haji Hassan

[2005] 1 MLJ 654 - Legal effect of undertaking to court - whether solicitor
may be subject to committal proceedings for failure to fulfil same

• Messrs Roland Cheng & Co v Konkamaju Sdn Bhd (Abdul Aziz Abdul
Rahim JCA) [2014] 1 MLJ 894

Civil Procedure – Res judicata – Decision on merits – Whether solicitor

entitled to lien over client’s title deed to land – Whether similar raised in
earlier interpleader proceedings – Whether merits of solicitor’s claim for
lien determined during interpleader proceedings – Whether res judicata
not applicable

Legal Profession – Solicitor’s lien – Solicitor withholding original title deed

due to unpaid legal fees – Whether solicitor entitled to lien to retain
original title deed – Advocates Ordinance Sabah 1953 (Sabah Cap 2) s 55

• Datuk Seri Anwar bin Ibrahim v Public Prosecutor [2014] 3 MLJ 882

Criminal Procedure – Prosecution – Deputy public prosecutor –

Disqualification – Application to disqualify advocate and solicitor from
being appointed as deputy public prosecutor to conduct appeal –
Principles applicable in disqualifying counsel – Whether applicant’s rights
to fair trial and equal treatment under arts 5 and 8 of the Federal
Constitution prejudiced – Whether appointment in breach of r 28(c) of the
Legal Profession (Practice and Etiquette) Rules 1978

Evidence – Documentary evidence – Statutory declaration – Statutory

declaration – Statutory declaration referred to in body of applicant’s
affidavit – Maker of statutory declaration referred to in body of applicant’s
affidavits – Maker of statutory declaration not available for
 Professional Practice 557

cross-examination – Whether contents of statutory declaration hearsay –

name and address of maker ‘blotted’ – Discrepancies in NRIC number –
Whether statutory declaration inadmissible

Legal Profession – Advocates and solicitors – Disqualification – Application

to disqualified advocate and solicitor from being appointed as deputy
public prosecutor to conduct appeal – Principles applicable in disqualifying
counsel – Whether applicant’s rights to a fair trial and equal treatment
before law under arts 5 & 8 of the Federal Constitution prejudiced –
Whether appointment in breach of r 28(c) of the Legal Profession
(Practice and Etiquette) Rules 1978

2. Immunity from Negligence

• Lim Soh Wah v Wong Sin Chong [2001] 2 CLJ 344

▪ Read: Arthur (JS) Hall & Co v Simons [1999] 3 WLR 873 - latest on legal
negligence of solicitors.

➢ Litigious Matters

• Majid v Muthuswamy [1968] 2 MLJ 89

• Saif Ali v Mitchell [1978] 3 All ER 1033
• Giannarelli & Ors v Daryl Wraith & Ors [1988] The Legal Reporter
Vol. 9 No. 17, p. 1

➢ Non-litigious Matters

• Miranda v Khoo Yew Boon [1968] 1 MLJ 161

• Ngeoh Soo Oh & Ors v G. Rethinasamy [1984] 1 MLJ 126
• GT Rajan v Lee Yoke Lay & Anor [1994] 2 MLJ 315
• Dato' Leong Pow Kue & Ors v Gan Kim Singh [1998] 7 MLJ 133

➢ Contractual Relationship

• Miranda v Khoo Yew Boon [1968] 1 MLJ 161

Professional Practice 558

• Re Yap Peter [1991] 1 MLJ 129 - contract of honour

• Teh Eok Kee & Anor v Tan Chiah Hock & Anor [1995] 3 MLJ 613

➢ Professional Negligence

• Victor Cham v Loh Bee Tuan [2006] 5 MLJ 359, [2006] 3 CLJ 770
• Read: Jackson & Powell on Professional Negligence with Particular
Reference to Solicitor and Barrister

H. Some Common Complaints Against the Legal Profession

• Joseph J Simeone, The Profession of Law

• AT Verderbilt, The Five Functions of the Lawyer
• Lord Denning, The Honest Lawyer
• A Critique on Lawyers (1984) Vol 17 No 2 INSAF, p. 13
Professional Practice 559

SECTION B

PART I

LAND LAW & LAND DEALINGS

A. General

1. The Malaysian Torrens System

2. The Application of English Equitable Principles to Land Matters

(a) Sections 3 & 6 Civil Law Act 1956

(b) Cases

• Midland Bank Trust Co Ltd v Green [1981] AC 513

• Haji Abdul Rahman v Mohamed Hassan [1917] AC 209
• MUF v Tan Lay Soon [1991] 1 MLJ 504
• Chin Choy v Collector of Stamp Duties [1981] 2 MLJ 47
• Devi v Francis [1969] 2 MLJ 169
• United Malayan Banking Corporation v PHT, Kota Tinggi [1984] 2
MLJ 87
• Oh Hiam v Tham Kong [1980] 2 MLJ 159
• Lian Keow Sdn Bhd v Overseas Credit Finance [1988] 2 MLJ 449
• Templeton & Ors v Low Yat Holdings Sdn Bhd [1993] 1 MLJ 443
• Hon Ho Wah & Anor v UMBC [1994] 2 MLJ 393
• Yeong Ah Cheev Lee Chong Hai & Anor and Other Appeals [1994] 2
MLJ 614
• Mercantile Bank v Official Assignee of the Property of How Han Teh
[1969] 2 MLJ 196
• Bank Bumiputra Malaysia Bhd v Mohamed bin Hj Mohd Din [1989] 2
Professional Practice 560

MLJ 49
• Lim Ah Hun v Pendaftar Hakmilik Tanah, Pulau Pinang [1990] 2 MLJ
34
• Chuah Eng Khong v Malayan Banking Bhd [1998] 3 MLJ 97
• Samuel Naik Siang Ting v Public Bank Berhad [2015] MLJU 519

(c) Articles

• Teo KS, "Equity in Land Law" [1988] 15 JMCL 57

• Sethu RR, "Equity in Malaysian Land Law: Scope and Extent" [1989]
1 SCJ 37
• Teo KS & Khaw LT, Equity in Malaysian Land Law: Paper presented
at the 9th Malaysian Law Conference - organised by the Bar Council
Malaysia at Kuala Lumpur on 10-12 October 1991

B. Disposal by The State Authority

1. Alienation

• Teh Bee v K Maruthamuthu [1977] 2 MLJ 7

• M & J Frozen v Siland Sdn Bhd [1994] 1 MLJ 294

• ss. 40-43 and 62-78, 92A-92G, NLC
• Kerajaan Negeri Sarawak &Ors v Basnol bin Abol (deceased) &Ors. and
other appeals [2003] 1 MLJ 376
• Basnol Abol & Ors v The State Government of Sarawak & Other Appeals
[2004] 2 CLJ 553 (FC)

2. Types of Titles

(a) Qualified and Final Titles

(b) Land Office Title and Registry Title

Professional Practice 561

• Sections 77 (3) and 396 National Land Code (NLC)

(c) Register and Issue Documents of Title

• Sections 77, 85-92 and 176-181, 14th Schedule, NLC

(d) Titles endorsed “Malay Reserve”

• Sections 4(2) and 340 NLC

3. Restrictions in Interest, Conditions and Categories of Land Use

• Dr Ti Teow Siew & Ors v Pendaftar Geran-Geran Tanah Negeri Selangor

[1982] 1 MLJ 38
• UMBC v Syarikat Perumahan Luas Sdn Bhd (No. 2) [1988] 3 MLJ 352
• Toh Huat Khay v Lim A Chang [2010] 4 MLJ 312
• Karuppanan v Balakrishnan [1994] 3 MLJ 584

4. State Authorities Consent

• Perwira Habib Bank Malaysia Berhad v Megat Najmuddin b Megat Khas

&Ors [1999] MLJU 63

• CIMB Investment Bank Bhd v Metroplex Holdings Sdn Bhd (F.C) [2014 6
MLJ 779, [2014] 9 MLJ 1012

C. Indefeasibility of Title

1. Section 340 NLC

(a) Fraud - section 340(2)(a) NLC

• Kesarmal & Anor v Valhappa Chettiar [1954] MLJ 119

• Tai Lee Finance Co Sdn Bhd v Official Assignee &Ors [1983] 1 MLJ
81
Professional Practice 562

• Datuk Jaginder Singh & Ors v Tara Rajaratnam [1983] 2 MLJ 196
FC; [1986] 1 MLJ 105 PC
• Loi Hieng Chiong v Kon Tek Shin [1983] 1 MLJ 31
• Saminathan v Pappa [1981] 1 MLJ 121
• Chu Choon Moi v Ngan Siew Tin [1980] 1 MLJ 34
• Loke Yew v Port Swettenham Rubber Co Ltd [1913] AC 491
• Ong Tin & Anor v The Seremban Motor Garage [1917] 1 FMSLR 308
• Tueh Guat Choo v Cheah Ah Hoe & Anor [1932] MLJ 109
• OCBC Ltd v Lee Tan Hwa & Anor [1989] 1 MLJ 261
• Francis a/l Singarayan v Pusparaju a/l Solay& 2 Ors [1994] 4 CLJ
357
• Borneo Housing Mortgage Finance Bhd v Time Engineering Ltd
[1996] 2 MLJ 12
• OCBC Bank (M) Bhd v Lee Lee Fah &Ors and another appeal [2000]
1 MLJ 134
• Adorna Properties Sdn Bhd v Boonsom Boonyanit @ Sun Yok Eng
[2001] 1 MLJ 241
• Koh Thong Chuan v The Official Assignee of the property of Koh
Liang Hee [2003] 1 MLJ 113
• Hoo Kok Chong & Anor v Yong Tim [2004] 1 CLJ 265
• Cheam Yah Kiam v Abdul Malek Zakaria & Anor & Another Case
[2005] 1 CLJ 537
• Abu Bakar Ismail & Anor v Ismail Husin & Ors & Other Appeals
[2007] 3 CLJ 97
• Majlis Agama Islam Negeri Pulau Pinang v Zaitun bt Ramli [2008] 6
MLJ (CA)
• Rabiah Lip & Ors v Bukit Lenang Development Sdn Bhd [2008] 3 CLJ
692 (CA)
• Puspavathy Thaveethu v Majlis Perbandaran Klang & Ors and Other
Appeals [2008] 6 CLJ 626 (CA)
• Kamarulzaman Omar & Ors v Yakub Husin & Ors [2014] 2 MLJ 768
Professional Practice 563

(FC)
• Bumiputra Commerce Bank Bhd v Augusto Pompeo Romei & Anor
[2014] 6 CLJ 17; [2014] 3 MLJ 672 (CA)
• Wong Wee Kheong v Daya Bersama Sdn Bhd [2013] 1 MLJU 230
(FC)
• Low Huat Cheng v Rozdenil Toni & Anor [2016] 5 MLJ 141 (FC)
• Yeo Ping Tieng & Ors v Elitrop Sdn Bhd [2019] 1 LNS 1832 (FC)

(b) Misrepresentation - section 340(2)(a) NLC

• Wong Wee Kheong v Daya Bersama Sdn Bhd [2013] 3 MLJ 313 (FC)

• Loke Yew v Port Swettenham Rubber Co Ltd [1913] AC 491

• Datuk Jaginder Singh & Ors v Tara Rajaratnam [1983] 2 MLJ 296
FC; [1986] 1 MLJ 105 PC
• Annamalai a/l Muthu v Nagappa a/l Muthu [2002] 4 MLJ 225
• Ismail bin Mohmad & Anor v Ismail bin Husin & Ors [2005] 7 MLJ
103

(c) Forgery - section 340(2)(b) NLC

• Boonsom Boonyanit v Adorna Properties Sdn Bhd [1995] 2 MLJ 863

• Seek Lai Neo & Anor v Cheng Chuan Development Sdn Bhd & 2 Ors
[1994] 4 CLJ 892
• Elizabeth Chiew Yee Fung & Ors v Leong Fook Ngen & Ors [2001] 6
MLJ 403
• State Tailor Sdn Bhd v Nallapan [2005] 2 CLJ 167
• Liew Yok Yin v AGS Harta Sdn Bhd [2006] 3 CLJ 787
• Au Meng Nam & Anor v Ung Yak Chew & Ors [2007] 4 CLJ 526
• Overseas Realty Sdn Bhd v Wong Yau Chong [2014] CLJ 107
Professional Practice 564

(d) Insufficient/Void Instrument - section 340(2)(b) NLC

• Tan Hee Juan v Teh Boon Keat [1934] MLJ 96

• Puran Singh v Kehar Singh & Anor [1939] MLJ Rep 71
• Appoo s/o Krishnan v Ellamah d/o Ramasamy [1974] 2 MLJ 201
• UMBC v Syarikat Perumahan Luas Sdn Bhd (No. 2) [1988] 3 MLJ 352
• M & J Frozen Food v Siland Sdn Bhd [1994] 1 MLJ 294
• Chiew Lip Seng v Perwira Habib Bank (M) Bhd (1999) 1 MLJ 310
• Siaw Kim Seong v Siew Swee Yin & Anor [2008] 5 CLJ 441 (CA)
• Tan Yin Hong v Tan Sian San &Ors [2010] 2 MLJ 1
• Uptown Properties Sdn Bhd v Pentadbir Tanah Wilayah Persekutuan
&Ors [2012] 8 MLJ 713
• Samuel Naik Siang Ting v Public Bank Berhad [2015] MLJU 519 FC

(e) Section 340(2)(c) NLC

• UMBC v Syarikat Perumahan Luas Sdn Bhd, (No. 2) [1988] 3 MLJ

352
• Teh Bee v Maruthamuthu [1977] 2 MLJ 7
• Woon Kim Poh v Sa'amah bt Hj Kasim [1987] 1 MLJ 400
• D & C Bank v Kim Ming Choon [1991] 2 MLJ 246
• M & J Frozen Food v Siland Sdn Bhd [1994] 1 MLJ 294

(f) Subsequent Bona Fide Purchasers - section 340(3) NLC

• Doshi v Teoh Tiong Lay [1975] 1 MLJ 85

• Datuk Jaginder Singh v Tara Rajaratnam [1983] 2 MLJ 196 FC;
[1986] 1 MLJ 105 PC
• Owe Then Kooi v Au Thiam Seng & Anor [1990] 1 MLJ 234
• Lee Kim Sin v Pegawai Pentadbir Pusaka, Malaysia [1992] 3 CLJ
1701
• Boonsom Boonyanit v Adorna Properties Sdn Bhd [1995] 2 MLJ 863
• Adorna Properties Sdn Bhd v Boonsom Boonyanit [2001] 2 CLJ 133
Professional Practice 565

• Toh Huat Khay v Lim A Chang [2008] 2 CLJ 718 (CA)

• Kamarulzaman Omar v Yacub Husin [2014] 1 CLJ 987
• Tan Ying Hong v Tan Sian San & Ors [2010] CLJ (SE) 1
• Tan Ong Ban v Teoh Kim Heng [2016] 3 MLJ 23 (FC)
• T Sivam a/l Tharamalingam v Public Bank Berhad [2018] 1 MLJU 580
• Liputan Simfon Sdn Bhd v Pembangunan Orkid Desa Sdn Bhd [2018]
3 MLJ 386
• Pushpaleela Selvaraj v Rajamani [2019] 3 CLJ 441 (FC)

(g) "By Operation of Law" - section 340(4) NLC

• Ong Chat Pang v Valliappa Chettiar [1971] 1 MLJ 224

• Krishnadas & Ors v Maniyam [1993] 3 MLJ 465
• Tan Sin Thew @ Tan Poh Eng v Rintas Sdn Bhd [1994] 4 CLJ 331
• Official Assignee of the estate of Koh Liang Hae (a bankrupt) v Koh
Thong Chuan & Anor [1997] 5 MLJ 136

2. Powers of the Registrar to rectify errors – section 380 NLC

• Island & Peninsular Development Bhd & Anor v Legal Adviser, Kedah
[1973] 2 MLJ 71
• Mohammad bin Buyong v Pemungut Hasil Tanah, Gombak [1982] 2 MLJ
53
• Hassan Seman v Jusoh bin Awang Chik [1982] 1 MLJ 66
• Malaysian Building Society Bhd v KCSB Konsortium Sdn Bhd [2017] 1
MLJU 208

3. Powers of the court to rectify the Register – section 417 NLC

• Sungai Biak Tin Mines Ltd v Saw Choo Theng & Anor [1970] 2 MLJ 226
• Ong Chat Pang & Anor v Valliappa Chettiar [1971] 1 MLJ 224
• Hassan bin Seman & Ors Jusoh bin Awang Chik [1982] 1 MLJ 66
Professional Practice 566

4. Sections 417 and 418 NLC

• Woon Kim Poh v Saiamah bt Hj Kasim [1987] 1 MLJ 400

• Ismail bin Mohamad v Haji Yahya & Sons [1988] 2 MLJ 185

5. Claims in Personam

• Oh Hiam v Tham Kong [1980] 2 MLJ 159

• Article: Richard Wu “Implementation of Land Title Registration System
in Malaysia: Lessons for Hong Kong” [2011] 1 MLJ lxvi

D. Dealings

1. General - sections 205-212 NLC

• On registration of the transfer purchaser obtains legal title to property

o Jasbir Kaur v Tharumber Singh [1979] 1 MLJ 224

2. Transfers - section 214 NLC - What may be transferred

section 214A - Control of transfer of estate land

(a) Power of Registrar to refuse registration

• Pow Hing & Anor v Registrar of Titles, Malacca [1979] 1 MLJ 155

(b) Transfer of Part of Land

• Peter Lai v Collector of Stamp Duties [1973] 2 MLJ 33

(c) Memorandum of Transfer Form - See Form 14A

• Sale and Purchase Agreement – terms by way of contract

Professional Practice 567

(d) Execution and Attestation of Form 14A

(i) Mode of execution & manner

(ii) Section 211 and 5th Schedule NLC

(e) Attestation of Form 14A - 5th Schedule

(i) In Malaysia

(ii) Outside Malaysia

(f) Stamping of Form 14A & Sale and Purchase Agreement

• Sections 47, 47A and 52 Stamp Duty Act 1949

(g) Restriction to Transfer - Foreign Interest

• Section 433B NLC

• Jalaludeen Abdul Aziz v Thurmalingam a/ S Rajadurai [2002] 1 MLJ
237

(h) Stakeholder

• Standard Chartered Bank Malaysia Bhd v Ting Kah Kuong [2008] 7

MLJ 508
• Burt v Clause Cousins & Co [1971] 2 QB 426, Lord Denning
• Sorrell v Finch [1977] AG 728
• Toh Theam Hock v Kemajuan Perwira Management Corp. Sdn Bhd
[1988] 1 MLJ 116
• Tan Suan Sim v Chang Fook Shen [1980] 2 MLJ 66
• Kuldip Singh & Anor v LLN [1983] 1 MLJ 256
• Lee Yoke Chye v Toh Theam Bock & Co [1987] 1 MLJ 122
• GT Rajan v Lee Yoke Lay & Anor [1994] 2 MLJ 297
• Thomson Hill v Chang Erh [1992] 2 SLR 769
Professional Practice 568

(i) Position of purchaser under a contract of sale pending registration

(j) Section 206(3) NLC

• Ong Chat Pang v Valliappa Chettiar [1971] 1 MLJ 224

• Temenggong Securites v Registrar of Titles [1974] 2 MLJ 45
• Macon Engineers v Goh Hooi Yin [1976] 2 MLJ 53
• Hon Ho Wah & Anor v UMBC [1994] 2 MLJ 393
• J Raju v Kwong Yik Bank Bhd [1994] 2 MLJ 408
• Yeong Ah Chee v Lee Chong Hai & Anor & Other Appeals [1994] 2
MLJ 614
• M & J Frozen Food v Siland Sdn Bhd [1994] 1 MLJ 294
• Dr Michael Atun Wee v Malaysian Credit Finance Bhd & Ors [1994] 4
CLJ 798; [1994] 3 MLJ 594
• Ahmad bin Salleh & Ors v Rawang Hills Resort Sdn Bhd [1995] 3 MLJ
211
• Wong Siew Choong Sdn Bhd v Anvest Corporation Sdn Bhd [2002] 3
CLJ 409
• Tan Ong Ban v Teoh Kim Heng [2016] 3 MLJ 23

(k) Searches

• Private and official Searches

• sections 384-386

o Chow Yoong Hong v Tai Chet Siang [1960] MLJ 130

o Tirai Kristal Sdn Bhd v Pengarah Tanah Galian Wilayah
Persekutuan [2017] 1 MLRAU 479
o Pendaftar Hakmilik Pejabat Pendaftaran Wilayah Persekutuan v
Poh Yang Hong [2016] MLJU 824 (FC)
Professional Practice 569

(l) Duties of Solicitor

• Ngeoh Soo Oh v Rethinasamy [1984] 1 MLJ 126

3. Security Transactions

(a) Charges – sections241-280 NLC

(i) Whether constitutes interest in land?

• Ho Giok Chay v Nik Aishah [1961] MLJ 49

• T Bariam Singh v Pegawai Pentadbir Pesaka - Malaysia [1983]
1 MLJ 232.

• MBF Finance Bhd v Tegul Consolidated Sdn Bhd [2004] 2 CLJ

809
• Malaysia Building Society Bhd v Johore Mining and Stevedoring
Company Sdn Bhd [2004] 5 CLJ 82

(ii) Difference between a charge and a mortgage

• Bank Bumiputra M'sia Bhd v Doric Development Sdn Bhd &

Ors[1988] 1 MLJ 462

(iii) Effectof an unregistered charge

• Mahadevan s/o Mahalingam v Manilal & Sons (M) Sdn Bhd

[1984] 1 MLJ 266, [1986] 1 MLJ 357
• Malayan Banking Berhad v Zahari bin Ahmad [1988] 2 MLJ 135
• Oriental Bank v Chup Seng Restaurant [1990] 3 MLJ 493
• Tan See Hock v Development & Commercial Bank & Anor
[1993] 3 MLJ 250
• Standard Chartered Bank v Yap Sing Yoke [1989] 2 MLJ 49
Professional Practice 570

(iv) Order for Sale: sections 253-265 NLC

• Pan Wai Mei v Sam Weng Yee & Anor [2006] 1 CLJ 914 (CA)
• Hock Hua Bank Bhd v Chan Siew Yen [2008] 2 CLJ 102 (CA)
• Talam Corporation Bhd v Bangkok Bank Bhd [2017] 2 CLJ 365
(CA)
• Lim Ban Hooi v Malayan Banking [2018] MLJU 510
• Wan Zubaidah bt Mahmud v CIMB Bank [2018] 1 MLJU 695

➢ Form 16D/16E

o Jacob v OCBC [1974] 2 MLJ 161

o Central Malaysian Finance Bhd v Great Pacific
Development Sdn Bhd [1983] 1 CLJ 134
o Citibank NA v Wong Ngai Poh [1983] 1 CLJ 297
o MIMB v Dhanoa Sdn Bhd [1988] 1 MLJ 257
o Malayan United Finance Bhd v Tan Ah Moi @ Tan Nyor
Pong (F) & Satu Lagi [1993] 2 CLJ 427
o VAM Hussain v BP Malaysia [1970] 2 MLJ 69
o Co-operative Central Bank Ltd v Mengkuang Properties
Bhd [1991] 2 MLJ 283
o Malayan Banking Bhd v PK Rajamani [1994] 1 MLJ 405
o Perwira Affin Bank Bhd (formerly known as Perwira Habib
Bank Malaysia Bhd) v WT Low & Ng Realty Sdn Bhd
[1997] 5 MLJ 185
o Citibank Bhd v Mohamad Khalid Farzalur Rahaman & Ors
[2000] 3 CLJ 739
o Bank Kerajaan Rakyat Malaysia Bhd v Emcee Corporation
Sdn Bhd [2003] 2 MLJ 408
o Lee Gee Pheng v RHB Bank Bhd [2003] 4 CLJ 639
o Sivadevi a/p Sivalingam v CIMB Bank [2018] 5 MLJ 82
o Lim Ban Hooi v Malayan Banking [2018] MLJU 510
o Lee Ghee Peng v RHB Bank Bhd [2004] 1 MLJ 618
Professional Practice 571

o Alliance Bank Malaysia Bhd v MCK Development Sdn Bhd

[2005] 5 CLJ 77

➢ Illegality

o Tan Ah Tong v Perwira Affin Bank Bhd & Ors [2002] 5

MLJ 49
o Malayan Banking Bhd v PK Rajamani & Anor [2004] 3 CLJ
79
o Perwira Affin Bank v Tan Ah Tong [2003] 5 MLJ 193

➢ Order 83 Rules of Court 2012

o Citibank NA v Ibrahim bin Othman [1994] 1 MLJ 608

o Bank Pertanian Malaysia v Zainal Abidin bin Kassim &
Anor [1959] 2 MLJ 537
o Phileoallied Bank (Malaysia) Bhd v Bupinder Singh Avatar
Singh & Anor [2002] 2 CLJ 621
o Chang Keat Realty Sdn Bhd v Ban Hin Lee Bank Bhd
[2003] 3 CLJ 532
o Sivakadatcham P. Sethuram v CIMB Bank Berhad [2019]
6 CLJ 504

➢ Circumstances where order for sale will not be given – sections

256(3) & 263(1) NLC

o Eng Ah Mooi & Ors v OCBC Ltd [1988] 1 MLJ 209

o Tai Lee Finance Co Sdn Bhd v Official Assignee [1983] 1
MLJ 81
o Kheng Soon Finance Bhd v MK Retnam Holdings Sdn Bhd
[1989] 1 MLJ 457
o Kucing Plaza Sdn Bhd v Bank Bumiputra Bhd & Anor
[1991] 3 MLJ 163
o Co-operative Central Bank Ltd (in receivership) v Feyen
Professional Practice 572

Development Sdn Bhd [1995] 3 MLJ 313

o UMBC v Syarikat Perumahan Luas Sdn Bhd (No. 2) [1988]
3 MLJ 352
o OCBC v Lee Tan Hwa & Anor [1989] 1 MLJ 261
o Buxton & Anor v Supreme Finance (M) Bhd [1992] 2 MLJ
481
o Malayan Banking Bhd v Yong Chao Foo [1992] 2 CLJ 842
o Arab-Malaysian Bhd v Razshah Enterprize Sdn Bhd [1993]
1 CLJ 41
o United Malayan Banking Corp Bhd v Chong Bun Sun and
another application [1994] 2 MLJ 221
o Low Lee Lian v Ban Hin Lee Bank [1997] 1 MLJ 77
o Bank Pertanian Malaysia v Mohd Gazzali Mohd Ismail
[1997] 3 CLJ Supp. 299
o PhileoAllied Bank (M) Bhd v Saddhona Indran a/p
Sevapragasam [1999] 6 MLJ 490
o EON Bank Bhd v Deb Brata Das Gupta & Anor [1999] 6
MLJ 714
o Foo Yoke Foon v Public Bank [2000] 3 CLJ 405
o United Merchand Finance Bhd v Chang Miau Sin [2001] 1
CLJ 660
o Phileo Allied Bank (Malaysia) Bhd v Koahish Credit &
Leasing Sdn Bhd [2000] 4 CLJ 788
o Arab-Malaysian Finance Bhd v Chan Sai Mee [2001] 6 CLJ
1
o Malaysian Building Society Bhd v Univein Sdn Bhd [2002]
2 CLJ 81
o Bumiputra Commerce v Tengku Ngah Putra bin Tengku
Ahmad Tajuddin [2002] 4 MLJ 63
o Lum Choon Realty Sdn Bhd v Perwira Habib Bank
Malaysia Bhd [2003] 4 MLJ 409
Professional Practice 573

o EON Bank Bhd v Hotel Flamingo Sdn Bhd [2005] 5 CLJ

253
o OCBC Bank (Malaysia) Bhd v Au Kee Sian & Anor [2006] 4
CLJ 597
o Hongkew Holdings (M) Sdn Bhd v Hyundai Heavy
Industries Co Ltd [2007] 5 CLJ 165
o Jigarlal K Doshi Kantilal Doshi v Resolution Alliance Sdn
Bhd [2013] 3 MLJ 61
o CIMB Investment Bank Bhd v Metroplex Holdings Sdn
Bhd [2014] 6 MLJ 779, [2014] 9 CLJ 1012
o CIMB Bank Bhd v Sivadevi Sivalingam [2019] 1 LNS
1904 (FC)
o RHB Bank Bhd v Dato’ HJ Muhammad Hamzah [2020]
1 CLJ 236 (FC)
o Sivakadatcham P Sethuram v CIMB Bank Bhd [2019] 6
CLJ 504
o Adam Primus Varghese v Wee Loke Choon [2019] 2
CLJ 190

➢ Powers of Courts/Land Administrator sections 256 – 265 NLC

o Association Finance Corporation Ltd v Poomani [1972] 1

MLJ 117
o Eu Finance Berhad v Lim Yoke Foo [1982] 2 MLJ 37
o Malayan United Bank v Cheam Kim Yu [1992] 2 MLJ 642
o Suppiah v Ponnampalam [1963] MLJ 202
o Gurpal Singh v Kananayer [1976] 2 MLJ 34
o Government of Malaysia v Omar Haji Ahmad [1983] 1 CLJ
242
o Sivadevi Sivalingam v CIMB Bank Berhad [2018] 5 MLJ 82
o Lim Ban Hooi v Malayan Banking [2018] MLJU 510
o Lim Yoke Foo v Eu Finance Bhd [1985] 1 MLJ 17 PC
Professional Practice 574

o NKM Properties Sdn Bhd v Rakyat First Merchant Bankers

[1992] 2 MLJ 349
o Bank Bumiputra v PTD, Gombak [1992] 1 MLJ 78
o Asia Commercial Finance v Dev & Realtor [1992] 2 MLJ
504
o United Asian Bank Bhd v Elgi Marka Sdn Bhd [1995] 1
MLJ 301
o Lum Choon Realty Sdn Bhd v Perwira Habib Bank
o Malaysia Bhd [2000] 3 CLJ 119
o Pan Wai Mei v Sam Weng Yee & Anor [2006] 1 CLJ 914
o Khairul Adnan Hashim v Maybank Islamic Bhd [2014]
MLRHU 426; [2014] 1LNS 625 unreported

➢ Effects of Sale sections 266 – 269 NLC

o Malayan United Finance Bhd, Johore Bahru v Liew Yet Lan

[1990] 1 MLJ 317
o MLJ Frozen Food Sdn v Siland Sdn Bhd& Anor [1994] 1 MLJ
294 (SC); [1990] 2 MLJ 502 (HC)
o Perdana Properties Bhd v Yong Chon [1990] 1 MLJ 433
o KL Finance v Yap Poh Khian [1992] 1 MLJ 472
o Hotel Ambassador (M) Sdn Bhd v Seapower (M) Sdn Bhd
[1991] 1 MLJ 404
o Puah Bee Hong & Anor v PTD Wilayah Persekutuan
o KL & Anor (Teo Keng Tuan Robert, Intervener) and
another appeal [1994] 2 MLJ 601
o Lee Kim Guan v Malayan Produce Co Sdn Bhd [1993] 2
AMR 29:1259

(v) Sale by Private Treaty

• The Chartered Bank v Packiri Maideen [1963] MLJ 276

• Chung Khiaw Bank v Lau Ah Yen & Anor 1989] 2 MLJ 247
Professional Practice 575

• Malayan United Bank v Cheah Kim Yu [1991] 1 MLJ 313

• Malaysia Credit Finance v Yap Hock Choon [1989] 1 MLJ 232
• Inter-Rally Motor Sdn Bhd v Karupiah a/l Palaniasamy [1992] 2
MLJ 650
• Mui Bank Bhd v Cheam Kim Yu (Beh Sai Ming Intervener)
[1992] 2 MLJ 642
• UMBC v Chong Bun Sun and Nor Application [1994] 2 MLJ 221
• Malaysia Building Society Bhd v Merit Aim Sdn Bhd& Anor
[2012] 4 CLJ 269

(vi) Discharge – sections 278-280 NLC

• Eng Ah Mooi & Ors v OCBC [1983] 1 MLJ 209

• MUF v Tan Lay Soon [1991] 1 MLJ 504; [1991] 1 SCR 1
• Sri Minal Construction Sdn Bhd v Hongkong Bank Malaysia Bhd
[2007] 9 CLJ 579

(vii) Order for Possession – sections 270 – 277 NLC

• Challenges to Charges: Principle and Precedent, RR Sethu

[1993] 3 MLJ xc

(b) Statutory Lien – sections 281, 330, 331 NLC

• Paramoo v Zeno Ltd [1968] 2 MLJ 230

• ORMORM Manickavasagam Chetty v TJ McGregor [1933] MLJ 295
• Vallipuram Sivaguru v Palaniappa Chetty [1937] MLJ Rep 55
• Mercantile Bank Ltd v The Official Assignee of the Property of How
Han Teh [1969] 2 MLJ 196
• Heap Huat Rubber Co v UOB [1992] 3 CLJ 1589
• Nallammal & Anor v Karuppanan & Anor [1993] 2 MLJ 476
• Perwira Habib Bank Malaysia Bhd v Tin Siang Sdn Bhd & 2 Ors
[1992] 4 CLJ 1875
Professional Practice 576

• Hong Leong Bank Bhd v Staghorn [2008] 2 MLJ 622

• Pengurusan Dana Harta Nasional Bhd v Yong Wan Hoi [2007] 6
MLJ 709
• Gan Leong Chai v Sin Heng Chan (Malaya) Bhd [1997] 3 CLJ
Supp.31

E. Restraints on Dealings

1. Caveats

(a) Registrar's Caveats - sections 319-321 NLC

• Registrar of Title, Johore v Temenggong Securities Ltd & Anor

[1974] 2 MLJ 45 FC; [1976] 2 MLJ 44 PC
• Lim Ah Hun v Pendaftar Hakmilik Tanah, PP [1990] 3 MLJ 34
• OCBC Ltd v Pendaftar Hakmilik, Kedah [1990] 2 MLJ 478
• Seet Soh Ngoh v Venketeswara Sdn Bhd [1976] 1 MLJ 242
• AR. PL. Palaniappa Chettiar v PL. AR. Letchumanan Chettiar [1982] 1
MLJ 232
• Boonsom Boonyanit v Adorna Properties Sdn Bhd [1990] 3 MLJ 444
• D & C Bank Bhd v Land Administrator, Wilayah Persekutuan & Anor
[1991] 2 MLJ 180
• Mui Finance v Pendaftar Hakmilik, Shah Alam & Anor [1993] 1 MLJ
98
• MBF Finance Bhd v Pendaftar Hakmilik, Negeri Perak [1990] 3 MLJ
473
• Malayan Banking Berhad v Pendaftar Hakmilik, Negeri Pahang &
Anor [1990] 2 CLJ 999
• Public Bank v Pengarah Tanah & Galian & Anor [1990] 2 MLJ 510
HC; [1990] 3 MLJ 100 SC
• D & C Bank v Government of Malaysia [1989] 3 MLJ 359
• Agrimal Project Sdn Bhd v Pendaftar Hakmilik, Pejabat Tanah dan
Professional Practice 577

Galian, Johor & Ors [1997] 3 CLJ Supp 491

➢ Articles:
o Teo KS, "Registrar's Caveats: Of Removal, Limitation And
Priority With Secured Creditors", [1990] 2 MLJ cxxii
o Loo CK, "The Registrar's Caveat: A Boon For The Inland
Revenue Department", [1993] 2 MLJ cxlvii

(b) Private Caveats - sections 322-329 NLC

• Eng Mee Yong v Letchumanan [1979] 2 MLJ 212

• Nanyang Development (1966) Sdn Bhd v How Swee Poh [1970] 1
MLJ 145
• Goh Keng How v Raja Zainal Abidin bin Raja Hussin & Anor [1995] 3
MLJ 6
• Easow Plantations Sdn Bhd v Mosbert Bhd (In Liquidation) [1988] 1
MLJ 298
• Standard Chartered Bank v Yap Sing Yoke & Ors [1989] 2 MLJ 49
• EM Buxton & Anor v Packaging Specialists Sdn Bhd [1987] 1 MLJ
342
• Yeow & Foo Sdn Bhd v Peninsular Rank Sdn Bhd [1994] 4 CLJ 1084
• Chai Kim Cheong v Barnwood Sdn Bhd [1994] 2 MLJ 56
• Chin Kon Nam & Anor v Chai Yun Phin Development Sdn Bhd [1994]
3 CLJ 432
• Murugappa Chettiar Lakshmanan v Lee Teck Mook [1995] 1 MLJ 782
• Macon Engineers Sdn Bhd v Goh Hooi Yin [1976] 2 MLJ 53
• Hew Sook Ying v Hiw Yin Hee [1992] 2 MLJ 189
• Trans-Summit Sdn Bhd v Chun Nyook Lin (P) [1994] 4 CLJ 445
• Lai Chon Foo @ Lai Chan Foo v K N Wong (M) Sdn Bhd[1994] 1 CLJ
523
• Miller v Minister of Mines [1963] 1 All ER 109
• R & I Securities v Golden Castle Finance Corporation (M) Bhd [1979]
Professional Practice 578

1 MLJ 46
• UMBC v D & C Bank [1983] 1 MLJ 165
• Eu Finance Bhd v Siland Sdn Bhd[1989] 1 MLJ 195
• Asia Commercial Finance v Development and Realtors Sdn Bhd
[1992] 2 MLJ 504
• Lee Kim Guan v Malayan Produce Co Sdn Bhd [1993] 2 AMR
29:1259
• Sharifah Masturabte Tuanku Ibrahim v Wan Aziz Ibrahim [1993] 3
MLJ 231
• N Vangedaselam v Mahadevan & Anor [1976] 2 MLJ 161
• Mosbert v Stella D'Cruz [1985] 2 MLJ 446
• Tan Heng Poh v Tan Boon Thong &Ors[1992] 2 MLJ 1
• Punca Klasik Sdn Bhd v Abdul Aziz bin Abdul Hamid & Ors [1974] 1
MLJ 236
• Chor Phaik Har v Farlim Properties Sdn Bhd [1994] 3 MLJ 345
• Pacline (M) Sdn Bhd v Tan Kim Foong [1994] 4 CLJ 1016; [1994] 4
CLJ 1027
• Alargasamy a/l Periam Pillai v Tai Phaik Kee & Anor [1992] 1 MLJ
665
• Luggage Distribution (M) Sdn Bhd v Tan Hor Teng & Anor [1995] 1
MLJ 719, [1995] 3 CLJ 520
• Chiew Sze Sun v MuthiahChettiar [1983] 1 MLJ 390
• RAP Nathan v Haji Abdul Rahman bin Haji Yusoff & Ors [1970] 1 MLJ
248
• Tengku Mohamed v Wazuraiyah [1988] 1 MLJ 27
• UMBC v Chan Yee Chung [1991] 2 CLJ 1611
• Kumpulan Sua Betong Sdn Bhd v Dataran Segar Sdn Bhd [1992] 1
MLJ 263
• Wong Sze Soon v Pegawai Pemegang Harta Malaysia & Anor [1995]
3 MLJ 57
• Megapillars Sdn Bhd v Loke Kwok Four [1996] 3 MLJ 71
Professional Practice 579

• Goh Paik Swan v Ng Choo Lum [1996] 3 MLJ 437

• Chor Phaik Har v Farlim Properties Sdn Bhd [1997] 4 CLJ 393
• Ong Ban Chai & Ors v Seah Siang Meng (1998) 3 MLJ 346
• Paya Terubong Estates Sdn Bhd v Pusaka Warisan Sdn Bhd (1998) 2
MLJ 463
• Ooi Chek Chai & Anor v Low Thow Yoong Sdn Bhd[2000] 3 CLJ 427
• Affin Bank Bhd v Dato' Mohamed bin Embong [2002] 1 MLJ 475
• Mok Yong Kong & Anor v Mok Yong Chuan [2002] 3 CLJ 615
• Lee Chin Cheng Dengkil Oil Palm v Kaplands Sdn Bhd [2003] 1 MLJ
177
• Perbadanan Setiausaha Kerajaan Selangor v Metroway Sdn Bhd &
Anor [2003] 3 MLJ 522
• Saydoo Ramasamy v Syentee Dianna Mohd Noor [2004] 2 CLJ 67
• Toko Palayakat Jamal (M) Sdn Bhd v Soon Seng Company [2004] 3
CLJ 32
• Mohamed Jamal bin Inche Jin Salleh v Earnest Cheong Yong Yin
[2004] 3 MLJ 131
• Natsafe (M) Sdn Bhd v Lai Teak Kuong [2005] 6 MLJ 454
• Dana harta Managers Sdn Bhd v Samaworld (Asia) Sdn Bhd [2006] 7
CLJ 417
• Mohd Azhari Aziz v Shanmugam Maniyandy [2006] 3 CLJ 433
• Urethane System Sdn Bhd v Quek Yak Kang [2006] 6 CLJ 8
• Institut Teknologi Federal Sdn Bhd v IIUM Education Sdn Bhd v
Another Appeal [2008] 1 CLJ 745 (CA)
• Teck Heng Development Sdn Bhd v Toh Chin Ann [2008] 4 CLJ 756
(CA)
• Score Options Sdn Bhd v Mexaland Development Sdn Bhd [2012]6
MLJ 475 (FC)
• Devi Meyyamai M Ramanathan & Anor v Hartini Mohamed [2013] 3
MLJ 813 (CA)
• Maria Rochele Silva Sarabia v Registrar of Lands & Survey [2015] 7
Professional Practice 580

MLJ 52
• Version Buy Sdn Bhd v Thong Wee Kee [2015] 3 MLJ 22 (FC)
• Antonina Marleen Yarendra v Chai Wei Chung [2017] MLRAU 194
(CA)
• Wong Kok Leong v RHB Bank Bhd [2015] 1 MLJ 385
• Vimala Sangari a/p R. Nathan v Loh Chen Yook [2017] MLJU
1688

➢ Articles:

o Teo KS, "Caveating One's Own Land: Cold Comfort For The
Registered Proprietor" [1991] 1 MLJ xxxiv
o Khaw LT, "claims In Respect of Part Of The Land - Whether
Capable Of Being Protected By Caveats" [1986] JMCL 219
o Sethu RR, "Private Caveat Emasculated" [1992] 2 MLJ xxv
o Khaw LT, "The Element of Judicial Discretion In The Removal
Of A Caveat - Kumpulan Sua Betong v Dataran Segar" [1993] 2
MLJ ci
o Teo KS, "Removal of Private Caveats by The Court" [1994] 3
MLJ lxxxv
o Romesh Roy, "Private Caveats - a Fresh Look" [1995] 2 MLJ i

(c) Second Caveats - section 329(2) NLC

• Lourdenadin v Ratnavale [1984] 1 MLJ 297

• Alagarsamy a/l Periam Pillai v Tai Phaik Kee & Anor [1992] 1 MLJ
665
• Hock Hin Bros v Low Yat Holdings [1984] 1 MLJ 92
• Damodaran v Vasudeva [1974] 1 MLJ 128
• Lim Kiat Moy v Hamzah [1966] 2 MLJ 175
• Thevathason v Kwong Joon [1990] 3 MLJ 49
• Hiap Yiak Trading Sdn Bhd v Hong Soon Seng Sdn Bhd[1990] 2 MLJ
155
Professional Practice 581

➢ Articles:

o Teo KS, "Second Caveats: some Reflections" [1985] 1 MLJ

clxxxv
o Teo KS, "Further Thoughts On Second Caveats" [1993] 3 MLJ
cxvi

(d) Lien Holder's Caveats - sections 281, 330-331 NLC

• Chiew Sze Sun v Muthiah Chettiar [1983] 1 MLJ 390

• Nallammal & Anor v Karuppanan & Anor [1993] 3 MLJ 476
• Gan Leong Chai & Ors v Sin Heng Chan (Malaya) Bhd Anor [1997] 4
CLJ Supp 31
• Tan Kit Theng v RHB Finance Bhd [1999] 5 MLJ 533
• Hong Leong Finance Bhd v Staghorn Sdn Bhd & Other Appeals
[2005] 2 CLJ 1
• Megat Najmuddin bin Megat Khas & Ors v Perwira Habib Bank
Malaysia Berhad [2003] 4 MLJ 65
• Sayang Plantation Bhd v Koh Siak Poo [2006] 1 CLJ 1163
• Hong Leong Bank Bhd v Staghora Sdn Bhd & Other Appeals [2008] 2
CLJ 121 (FC)
• UJA Sdn Bhd v United Overseas Bank (Malaysia) Bhd [2008] 4 CLJ
779 (HC)
• Ban Hin Lee Bank v Applied Magnetic (M) Sdn Bhd (in liquidation)
[2002] MLJU 452

(e) Trust Caveats – sections 332-333 NLC

• Yeong Ah Chee v Lee Chong Hai [1994] 2 MLJ 614

• In the Bank of Tokyo Ltd v Registrar of Titles Selangor [1990] 1 CLJ
740
Professional Practice 582

(f) Competing Equities

• Butler v Fairclough (1917) 23 CLR 78

• Abigail v Lapin [1934] AC 49
• J & H Just Holdings Pty Ltd v. Bank of New South Wales (1971) 125
CLR 546
• Haroon v Nik Mah [1951] MLJ 209
• UMBC v Goh Tuan Laye [1976] 1 MLJ 169
• Syed Ibrahim bin Syed Abdul Rahman v Liew Su Chin [1984] 1 MLJ
160
• Ng Kheng Yeow v Chiah Ah Foo & Ors [1987] 2 MLJ 330
• Vallipuram Sivaguru v Palaniappa Chetty [1937] 1 MLJ Rep 55
• Wong Wee Kheong v Daya Bersama Sdn Bhd [2013] 3 MLJ 313

2. Prohibitory Orders – sections 334-339 NLC

• Karrupiah Chettiar v Subramaniam [1971] 2 MLJ 116

• Chooi Siew Cheong v Lucky Height Development Sdn Bhd & Anor [1995]
1 MLJ 513; [1994] 4 CLJ 113
• Chua Hee Hung v QBE Supreme Insurance Bhd [1990] 1 MLJ 480
• Dr Michael Atun Wee v Malaysian Credit Finance Bhd & Ors [1994] 4 CLJ
798; [1994] 3 MLJ 594
• Standard Chartered Bank v Yap Sing Hock &Ors [1989] 2 MLJ 49
• Heng Bak Teong & Anor v Ng Ah Seng [1988] 1 MLJ 406
• Hiap Yiak Trading v Gim Hin& Co (M) Sdn Bhd [1989] 2 MLJ 366
• Ban Hin Lee Credit v Utama Computer Centre [1991] 2 MLJ 327
• Meriam bte Yaacob & Ors v Shell Malaysia Trading Sdn Bhd [1984] 2 MLJ
31
• Reference by the Registrar of Titles, Selangor [1935] MLJ 287
• Airmartech Corporation (M) Sdn Bhd v Equaltra (M) Sdn Bhd [2003] 6 MLJ
657
• Lee Kuet Chin v Garai Jelian; Tan Kok Sen (Intervener) [2006] 3 CLJ 711
Professional Practice 583

3. Undertakings

• Seah Choon Chye v Saraswathy Devi [1971] 1 MLJ 112

• Re Choe Kuan Him [1976] 2 MLJ 207
• Public Bank Bhd v Perwira Affin Bank Bhd [2001] 3 MLJ 129

F. Housing Developers

1. Legislation Governing Housing Development

Housing Developers (Control & Licensing) Act 2012 (HDA)

(a) HDA and Regulations made thereunder.

o Syarikat Gunung Sejahtera Sdn Bhd v Lim Sze On & Ors [2007] 5
CLJ 189

(b) Definition of “housing developer”, “housing development” and “housing

accommodation”

o Section 3 HDA: covers liquidators of Housing Developers

o Lim Sze On & Ors v Syarikat Gunung Sejahtera Sdn Bhd [2009] 4
MLJ 741
o Yeoh Cheng Han & Anor v PPH Resorts (Penang) Sdn Bhd [2011] 3
MLJ 207

2. Purpose of Regulating Housing Development

• City Investment Sdn Bhd v Koperasi Serbaguna Cuepacs Tanggungan Bhd

[1988] 1 MLJ 69
• SEA Housing Corpn Sdn Bhd v Lee Poh Choo [1982] 2 MLJ 31
• Khau Daw Yau v Kin Nam Realty Development Sdn Bhd [1983] 1 MLJ 335
• Public Prosecutor v Annamaly a/l Narayanan [1989] 1 MLJ 45
• PDC v Teoh Eng Huat& Anor [1993] 2 CLJ 283
• Cheong Soo Leong & Ors v H'ng Ah Ba [2004] 2 CLJ 19
Professional Practice 584

3. Standard Sale and Purchase Agreement under the Housing

Development (Control and Licensing) Regulation 1989

(a) Housing Developers (Control & Licensing) (Amendment) Regulation 2015

(HDR)

(b) Regulation 8(1A)10 & 11, Regulations 11(2), 11A HDR

• Encony Development Sdn Bhd v Robert Geoffrey Gooch & Anor

[2016] 3 MLJ 400 (C.A)

(c) Schedule G HDR: (Land & Building) – property with title

(d) Schedule H HDR: (Building intended for Subdivision) – property without

title

• Foong Seong Equipment Sdn Bhd (Receivers & Managers Appointed)

v Keris Properties (PK) Sdn Bhd [2009] MLJU 421
• Yeoh Cheng Han & Anor v PPH Resorts (Penang) Sdn Bhd [2011] 3
MLJ 207
• Lim Chon Jet @ Lim Chon Jat & Ors v Yusen Jaya Sdn Bhd [2011] 5
MLJ 239
• Oxbridge Height Sdn Bhd v Abdul Razak [2013] MLRHU 808 [2014]
1 LNS 1449 unreported
• Audrey Gertrude de Souza v Sunway D’mont Kiara Sdn Bhd [2015] 4
CLJ 853 (C.A)
• Yee Hock Lai & Anor v Unity Performance Sdn Bhd [2014] 3 MLRA
598 (CA)

4. Right of termination of Sale and Purchase Agreement by Purchaser

(a) Termination under sections 8 and 8A had

Professional Practice 585

(b) Section 18A HDA– offence of abandonment of housing development

5. Consequences of Late Delivery

(a) Housing Developers (Control and Licencing) Regulations 1989

(b) Section 25(3) HDA

• 24 months (house)

• 36 months (apartment)

(c) Claim for Liquidated Damages

• Chye Fook & Anor v Teh Teng Seng Realty Sdn Bhd [1989] 1 MLJ
308
• SEA Housing Corpn Sdn Bhd v Lee Poh Choo [1982] 2 MLJ 31
• MK Retnam Holdings v Bhagat Singh [1985] 2 MLJ 212
• Kanching Realty Sdn Bhd v Leong Kok Chin & Anor [1990] 1 CLJ
1144
• Kang Yoon Mook Xavier v Insun Devt Sdn Bhd [1995] 2 MLJ 91
• Penang Development Corporation v Teoh Eng Huat & Anor [1992] 1
MLJ 749
• Tan Yang Long v Newacres Sdn Bhd [1992] 1 CLJ 209
• Sakinas Sdn Bhd v Siew Yik Hua & Anor [2002] 5 MLJ 497
• Chong By Sam & Anor v Soon Tiek Development Sdn Bhd [2008] 4
CLJ 235 (HC)
• Bedco Engineering & Construction v Tribunal of Housing Purchasers
[2017] 1 MLJU 636
• GJH Avenue Sdn Bhd v Tribunal Tuntutan Pembeli Rumah [2019] 1
LNS 1184
Professional Practice 586

(d) Claim for Recission of Contract

• Tan Yang Long & Anor v Newacres Sdn Bhd [1992] 1 CLJ 211
• Thomas Iruthayam & Anor v LSSC Development Sdn Bhd [2005] 6
CLJ 141

6. Vacant Possession

• Section 8A Strata Titles Act 1985

• Salmah Sulaiman & Anor v Metroplex Development Sdn Bhd [1997] 2 CLJ
148
• Azali b Bakar v Insun Development Sdn Bhd [1994] 3 AMR 51
• Hoya Holding Sdn Bhd v Chia Thin Hing @ Cheah Thin Heng & Anor
[1994] 4 CLJ 992
• Tay Ket @ Chan Kong Seong v Bumibakti Development Sdn Bhd [1994] 3
CLJ 256
• Charles Muriel v Newacres Sdn Bhd [1994] 2 CLJ 758
• Sykt Lian Hup (Liew Bros) Sdn Bhd v Chew Khong Chai [1988] 3 MLJ 325
• Voon Keng v Muzwina Dev Sdn Bhd [1991] 3 CLJ 1904
• Sri Damansara Sdn Bhd v Lim Ahat Kiat @ Lim Pei Tiam [1997] 3 MLJ 349
• M Concept Sdn Bhd v Berjaya Times Square Sdn Bhd [2004] 4 MLJ 556

7. Liability of Developer/Proprietor
Defects liability – 24 months

• Ding Cha Hee v Tan Wan Eng & Hong Kok Cheong [1991] 3 CLJ 2475

8. Charges

• Lai Soon Cheong v Kien Loong Housing Development Sdn Bhd [1993] 2
CLJ 199
Professional Practice 587

9. Assignment under HDA

(a) Need not obtain Developer’s Consent to assignment – notification of

assignment to Developer is sufficient

(b) section 22D HDA, Regulation 11A HDR

(c) Clause 12 Schedule H had

(d) Section 24(2) (G) HDA -penalty

10. Sale of Commercial Properties by Developer

(a) Transactions that do not come within the HDA & are subject to the
Developer’s consent

• Lee Ming Chong Sdn Bhd v Prudential Properties Sdn Bhd [2012] 8
MLJ 1

(b) Administration Fee payable to Developer

• Bank of Tokyo v Mohd Zaini b Arshad [1991] 2 CLJ 989

• Tan Yang Long & Anor v Newacres Sdn Bhd [1992] 1 CLJ 211
• Isabela Madeline Roy & Ors v Sarimah Low bte Abdullah &Ors
[2005] 2 MLJ 521
• Hong Leong Bank Bhd v Goh Sin Khai [2005] 3 MLJ 154
• Lim Seang Mee v Keepahead Holdings Sdn Bhd [1992] 2 CLJ(Rep)
776

11. Power of Attorney- General

• Standard Chartered Bank Malaysia Bhd v Hew Hai Woon [2007] 7 CLJ 454
Professional Practice 588

12. Joint Management Body

(a) Strata Management Act 2013

(b) Strata Management (Maintenance & Management) Regulation 2015

➢ Articles:

o Teo KS, "Recent Amendments to the Housing Developers (Control

and Licensing) Act 1966 and the New Housing Developers (Control
and Licensing) Regulations" (1989) JMCL 160
o S.Y. Kok, "A Sequal to the Energizing of Water and Electricity
Supplies at the Time of Delivery of Vacant Possession" [1994] 4 CLJ
xxiii
o S.Y. Kok, "Does Delivery of Vacant Possession Include the Energizing
of Water and Electricity Supplies?" [1993] 4 CLJ ix

G. STRATA TITLES - Strata Titles (Amendment) Act 2013

1. Application of Strata Title by Developer

• Sor Kok Wah & Oths v Draland [1998] 6 MLJ 456

• Poh Kiang Kok v Management Corporation Strata Title [1990] 3MLJ 206

2. Management Corporations

• Section 39(1) Strata Title Act 1985

• Perbadanan Pengurusan Straits View v Permas Jaya Sdn Bhd [1990] 3
MLJ 206

3. Common Property & Accessory Parcel

• Malaysia Land Properties Sdn Bhd v Waldorf & Windsor Joint Management
Body [2014] 3 MLJ 467 (CA)
Professional Practice 589

PART II

INSOLVENCY AND WINDING-UP

A. INSOLVENCY

1. Introduction to Law of Insolvency

(a) Objectives

The primary objective of the law of insolvency is to cause the vesting of all
the debtor's property and assets on the Director General of Insolvency for
equitable distribution among his creditors according to their rights; this is
to enable the creditors to recover whatever they can from the sale of the
debtor's property or from the contributions which may be ordered to be
made to the Director General of Insolvency.

(b) Debtor

• Definition of a debtor

o Section 3(3) IA
o Algemene Bank Nederland NV v Loo Choon Yow [1989] 2 MLJ
258

(c) Persons capable of being adjudged bankrupt:

(i) Foreigner: provided he falls within the definition of debtor and is

domiciled in Malaysia or has residential or business links in Malaysia:

• Sections 3(3) and 5(1)(d) IA

• See Re Leong Nyuk Weng, ex p Public Bank Bhd [2003] 4 CLJ
Professional Practice 590

260
• See Re Alfred Lam Choong Choy; Ex-parte: Downtown
Condominium Joint Management Body & Other Case [2016] 1
LNS 1444

(ii) Minors or infants:

• Re Davenport [1963] 1 WLR 817 through a guardian or guardian

ad litem

(iii) Married women:

• Section 120 IA
• Re Mahmooda bte Ismail [1961] 1 MLJ 195:
Cannot be adjudicated bankrupt where they have no separate
property and are dependent on their husband's income

(iv) Lunatics, persons of unsound mind and mental patients

(v) Members of Parliament: Parliamentary privilage does not cover an

act of bankruptcy

(vi) Members of the diplomatic corps:

• Bankruptcy proceedings can commence unless there is a

waiver or there exists an immunity under the Diplomatic
Privileges (Vienna Convention) Act 1966

o R V Madan [1961] 2 QB 1

(vii) Guarantors

• Section 2 IA – definition of a social guarantor

• Section 5(3)(a) IA – no bankruptcy proceedings may be
commenced against a social guarantor.
Professional Practice 591

• Section 5(3)(b) IA – leave of Court is required before

commencement of bankruptcy against guarantors other than
social guarantors
• Hong Leong Bank Bhd v Khairulnizam Jamaludin [2016] 7 CLJ
335 FC – decided on 19 May 2016

(viii) Estate of deceased debtor

Section 122 (2) IA – a creditor may commence bankruptcy against

the estate of a deceased debor.

(d) Creditor

(i) Unsecured creditor: An unsecured creditor is a person who is not

entitled to any priority towards settlement of the debt owing to him
and may include a judgment creditor

(ii) Secured creditor: See interpretation in section 2 and Schedule C IA

• Re Ng Say Tee [1954] MLJ 177

• M Hashimi bin Ibrahim v Asia Commercial Finance (M) Bhd
[2001] 4 MLJ 67
• Mohamed Supardi bin Mohd Noor, ex parte Public Finance Bhd
[2004] 6 AMR 72
• Goh Kein Hooi v OCBC Bank (Malaysia) Berhad & Another
Appeal [2014] 4 CLJ 274 CA- decided on 8 May 2013

(iii) Preferential creditor: A preferential creditor is one who has priority

over the other creditors.

• Section 43 IA

(iv) Director General of Insolvency: is constituted the receiver of the

property of the debtor upon the making of the Bankruptcy Order.
Professional Practice 592

2. Act of Bankruptcy

(a) The act of bankruptcy is a precondition to the presentation of a

bankruptcy petition.

(b) A debtor may commit an act of bankruptcy in a number of situations:

section (3)(1)(a) to (j) IA.

(c) The most common form of act of bankruptcy is based on the failure to
comply with the bankruptcy notice (section 3(1)(i) IA).

(i) Leave of court is required to issue a bankruptcy notice if more than

six years have lapsed since the date of judgment:

• Dr Shamsul Bahar Abdul Kadir v RHB Bank Bhd [2015] 4 CLJ

561

(ii) For the purposes of calculating the date of commission of an act of

bankruptcy, the date of service of the bankruptcy notice is excluded:

• Re Fadzil b. Othman v. Malayan Building Ltd [1994] 2 MLJ 474

(iii) For the purpose of whether the Bankruptcy Notice contains sufficient
particulars, the Court of Appeal have ruled that a statement of
account with the relevant particulars of the judgment sum attached
to the Bankruptcy Notice renders sufficient compliance with the
section 3(1)(i) IA. The Bankruptcy Notice should state that the
particulars of the sum claimed or outstanding are referred to the
statement of accounts attached.

• Goh Wee Peng v Standard Chartered Bank Malaysia Berhad

[2018] 1 LNS 2179 (Court of Appeal).
Professional Practice 593

3. Bankruptcy notice (BN)

(a) Form No. 34 (rule 89 IR):

• BN must be founded upon final judgment or final order:

o Re Udos al Rigging v Seabanc Kredit Sdn. Bhd. [1994] 3 MLJ

383 or [1994] 1 LNS 217
o Vijendran Ponniah v MBF Country Homes & Anor [2002] 1 MLJ
535
o Re Rusli AB Ghani; Ex Parte: CIMB Bank Berhad [2018] 1 LNS
1528 HC
o P Mukundan PK Kunchu Kurup & Ors v Daniel Anthony &
Another Appeal [2018] 3 CLJ 496

(b) BN should be based on the terms of the final judgment or order and not
by mutual agreement between the parties subsequently:

• Datuk Mohd Sari v Norwich Winterthur Insurance [1992] 2 MLJ 344

(c) The amount of interest due must be properly quantified in the BN.
Uncertainty or ambiguity in the BN would invalidate it. At the date of the
BN the interest must be capable of being quantifiable based on the terms
of the Judgment even though the Judgment did not quantify the interest:

• Re Ismail bin Daud and Hajah Qameriah [1989] 2 CLJ 1043

United Overseas Bank Bhd v Loke Lai Ying & [1999] 1 LNS 87
• P Mukundan PK Kunchu Kurup & Ors v Daniel Anthony & Another
Appeal [2018] 3 CLJ 496

(d) BN cannot be founded on two judgments or orders:

• Re Chen Chong Fatt Willy; ex parte Hitachi Lease [1987] 1 MLJ 94

• Dr R Ramachandran, ex parte Ganeswary a/p Ponnudurai [2003] 5
Professional Practice 594

MLJ 84

(e) Where the judgment is against two or more persons and jointly liable; the
issue of notice against one debtor for the full sum and not half the
judgment sum would be contrary to the judgment:

• Yeo Ah Wang v UMBC [1995] 1 AMR 38

• Sumathy Subramaniam v Subramaniam Gunasegaran & Another

Appeal [2018] 2 CLJ 305 CA

(f) BN founded on an allocatur is valid:

• Khoo Kay Hoe v Chor Phaik Har and Another Appeal [2002] 1 CLJ
317

(g) Order for specific performance compelling the defendant to purchase the
plaintiff's shares is not an order to pay a judgment debt:

• Re Eng Poh Hong; ex p MBF Leasing Sdn Bhd [2008] 2 CLJ 108

(h) Duration of BN: A BN is valid for three months from the date of issue:

• Rules 94 IR.

(i) Service:

(i) The BN must be served personally on the debtor:

• Rules 64, 95 and 108 IR

• Dato Hj Yusuf Kamari v CIMB Bank Bhd [2009] 9 CLJ 209

(ii) If personal service is not possible within time, the creditor must
apply to court for extension of time to serve:

• Section 93(4) IA
Professional Practice 595

• Yap Heng Cheong v Citi Bank Bhd [1999] 4 CLJ 365

• Aris bin Massod ex p UOL Factoring Sdn Bhd [1999] 3 MLJ 358

(iii) Must show special circumstances and good cause for extension

• Rohani Hamidah bt Nor v Sincere Leasing Sdn Bhd [1993] 1

AMR 225

(iv) If service is still not effected, then the creditor must apply for and
obtain an order for Substituted Service:

• Rule 109 IR
• Practice Note 1 of 1968
• Yap Heng Cheong v Citi Bank Bhd [1999] 4 CLJ 365
• Aris bin Massod ex p UOL Factoring Sdn Bhd [1999] 3 MLJ 358

(j) Formal defects:

• Section 131 IA provides, inter alia, that formal defects and

irregularities in bankruptcy proceedings shall not invalidate such
proceedings unless the court is of opinion that substantial injustice
has been caused by the defect or irregularity and the injustice
cannot be remedied by any order of that court

o Re Rengasamy Pillai ex parte The Comptroller of Income Tax

Kuala Lumpur [1968] 1 MLJ 103 / [1970] 1 LNS 139
o Re Fadzil b. Othman ex parte Malayan Banking Bhd. [1994] 2
MLJ 474
o Compare Re Arif bin Sionggong ex parte Arab Malaysian
Finance Bhd [1995] 3 MLJ 252
o Stephen Wong Leong Kiong v HSBC Bank Malaysia Bhd [2009]
6 CLJ 466 CA-decided on 18 May 2009
Professional Practice 596

(k) Setting Aside Bankruptcy Notice:

(i) Procedure:

Where the debtor has a set-off, counterclaim or cross demand

against the creditor may file an application by way of affidavit
claiming that he has such claim which equals or exceeds the claim
made by the creditor:

• Rule 93 IR
• Datuk Lim Kheng Kim v Malayan Banking Bhd [1993] 2 MLJ
298
• Re Rajaish Kumar Makhanlal Saigal; ex p HSBC Bank Malaysia
Bhd [2008] 1 LNS 161

(ii) On grounds other than counter-claim; set-off or cross demand,

application should be made by way of Summons in Chambers
supported by affidavit:

• Rule 17 IR

(l) Excessive sum in bankruptcy notice

(i) section 3(2)(ii) IA – BN is not invalidated by reason only that the

sum specifed in the BN exceeds the amount actually due unless
debtor gives notice within 7 days of the service of the bankruptcy
notice that he disputes the sum specified in the BN.:

• Re Arunachalam, ex parte Indian Overseas Bank Ltd [1968] 1

MLJ 89 / [1967] 1 LNS 142
• Re Lim Ah Hee, ex p Perwira Affin Bank Bhd [2000] 3 CLJ 354
• Re KV Sathasivam, ex p Phileo Allied Bank (Malaysia) Bhd
(2004) 5 CLJ 549
Professional Practice 597

(ii) Cannot claim more than 6 years’ interest on judgment debt from the
date the interest became due

• Limitation Act 1953

• United Malayan Banking Corp Bhd v Ernest Cheong Yong Yin
[2001] 1 MLJ 561
• Perwira Affin Bank v Lim Ah Hee [2004] 3 MLJ 253 (FC)/
(2004) 2 CLJ 787
• Moscow Norodny Bank Ltd v Ngan Ching Wen (FC) (2004) 2
CLJ 241
• Mohd Kamal Omar v United Overseas Bank (Malaysia) Bhd &
Other Appeals [2018] 5 CLJ 657 FC-decided on 03 May 2018

(iii) Rate of conversion on the day of judgement to be adopted for

judgment debt in foreign currency

• Re Chan Teik Huat, ex p Oversea-Chinese Banking Corporation

Ltd [2008] 7 CLJ 617

4. Creditor's Petition

(a) Form No. 41. (Rule 98 IR)

(i) Conditions for Petition:

• Section 5 IA

• Section 5(2) IA

o M. Hashimi b Ibrahim v Asia Commercial Finance Bhd

[2001] 4 MLJ 67
o Compare with Re Mohamed Supardi Md Noor Ex p Public
Finance Bhd [2004] 4 CLJ 646

• A creditor's petition must be verified by an affidavit of the

Professional Practice 598

creditor, or of some person on his behalf having knowledge of

the facts:

• Rule 105 IR

• Section 5(3)

-The time to file for leave to initiate Bankruptcy Proceedings

against a guarantor is either upon the issuance of the
bankruptcy notice, or even prior to that, up to and immediately
upon filing of the Creditors’ Petition - Hong Leong Bank Berhad
v Ong Moon Huat & Another Appeal [2018] 1 LNS 1612 (Court
Of Appeal).

• Section 5(4) IA

- the word “debtor” in the said subsection must be read together

with section 5(6) of the IA. Hence the word “debtor” must
necessarily mean principle debtor or borrower and not the
guarantor – Hong Leong Bank Berhad v Ong Moon Huat &
Another Appeal [2018] 1 LNS 1612 (Court of Appeal).

(ii) Validity of the Petition:

• Re Ho Weng Keong ex parte Marketlink [1993] 1 MLJ 60 /

[1992] 1 LNS 1
• Bathamani Suppiah v Southern Finance Company Bhd [2000] 2
CLJ 650

(iii) Authority to Present Petition:

• Section 133 IA and Rule 215 IR

• Ho Fok v Ann Bee (M) Sdn Bhd [2002] 5 MLJ 331 / [2002] 2
CLJ 223
• Re Daljit Kaur Harjan Singh; Ex P Perbadanan Pengurusan
Ixora [2015] 8 CLJ 573
Professional Practice 599

(iv) Attestation of Petition:

• Rule 101 IR

o Ooi Thean Chuan v Banque Nationale de Paris [1992] 2 MLJ

526 / [1992] 3 CLJ Rep 160

• Solicitors in Peninsular Malaysia are not authorised to attest to

a petition in Sabah and Sarawak and vice versa:

o Lie Kok Keong v Tang Container and Services Sdn Bhd

[2004] 1 MLJ 373 CA

(v) Validity of debt

• Tractors Malaysia Bhd v Charles Au Yong (1982) CLJ 152

• Affin Credit Sdn Bhd v Dato' Hj Raun DJalil Atmosumarto
(2004) 4 CLJ 337

(vi) Service

• The Petition must be personally served, failing which

substituted service must be effected.

o Rules 108, 109, 110, 111, 112 IR

o Goh Kein Hooiv OCBC Bank (Malaysia) Berhad & another

Appeal [2014] 4 CLJ 274- decided on 8 May 2013

(vii) Showing cause against Petition:

• Where a debtor intends to show cause against a petition, he

must file a notice with the registrar specifying the statements
in the Petition which he intends to challenge:

o Rule 116 IR
o Form No. 45 IR
Professional Practice 600

o Re Maheswary Ramasamy, ex p BSN Commercial Bank

(M) Bhd [2002] 5 MLJ 351 / [2001] 4 CLJ 544

(viii) Affidavit in opposition is held not to be notice under rule 116 IR

which is mandatory:

• D & C Bank Bhd. v Datuk Ong Kien Seng [1995] 3 AMR 2063

(ix) Second bankruptcy:

• Section 49 IA
• Sama Credit & Leasing Sdn. Bhd. v. Pegawai Pemegang Harta,
Malaysia [1995] 1 MLJ 274
• Bungsar Hill Holdings Sdn BHd v Dr Amir Farid Datuk Isahak
[2005] 2 CLJ 809 FC-decided on 22 March 2005

(x) Minimum Sum:

• Section 5(1) (a) IA – RM 50,000.00

• A petition founded on a sum which is below the minimum sum

allowed would be dismissed:

o Re Mat Shah, ex parte Raghbir Singh [1981] 2 MLJ 159

o Soo Kok Loong v Hong Kong & Shanghai Banking

Corporation Ltd [2009] 6 CLJ 62 CA-decided on 17 June
2009

• The court could still make a bankruptcy order even if the

judgment debt on which the creditor's petition is founded has,
by the date of the hearing of the petition, been substantially
reduced, unless the judgment debt is less than the statutory
minimum:

o Re Loh Kok Huah, ex parte Ban Hin Lee Bank [1992] 1

Professional Practice 601

MLJ 687 / [1991] 3 CLJ (Rep) 183

o Re MSA Zachariah, ex parte Boon Siew Finance Bhd
[1993] 2 AMR 1158 / [1993] 3 CLJ 279
o Moscow Narodny Bank Ltd v Ngan Ching Wen [2005] 3
MLJ 693 FC / [2004] 2 CLJ 241
o Soo Kok Loong v Hong Kong & Shanghai Banking
Corporation Ltd [2009] 6 CLJ 62 CA-decided on 17 June
2009

• At the hearing of the petition, it is not mandatory for the

petitioning creditor to prove the debt again through cross
examination especially when the affidavit verifying the petition
was never challenged. Further the 'personal attendance' of the
petitioning creditor is not required and the attendance of the
counsel is sufficient:

o Affin Bank Bhd v Tan Sri Kishu Tirathrai [2008] 3 MLJ 72

5. Adjournment

• After the expiration of one month from the day appointed for the first
hearing of the petition (provided the petition shall have been duly
served), no adjournment is allowed unless the debtor has given prior
notice that he intends to show cause against the petition:

o Rule 126 IR
o section 93(2) IA
o Re Tan Eng Niang, ex parte Ng Choo Kwan & Sons Hardware Sdn
Bhd [2003] 4 MLJ 679 / [2003] 1 LNS 365

6. Jurisdiction - Reinstatement

• BBMB Factoring Bank v Mariam Sasiman & Anothers Appeal [2000] 3 CLJ
Professional Practice 602

639
• Re Yau Kin Mun ex p Public Finance Bhd [2001] 2 MLJ 185

7. Bankrutpcy Order -

(a) Effects: Section 8 IA

(i) Section 8(1)(a) IA

Creditor whose debt is provable in Bankruptcy cannot commence

any legal proceeding against the property or person of the debtor
without leave of the court:

• Tanavanus Sdn. Bhd. v Simon Jungking Pingguan [1995] 2 MLJ

564.

• Mohd Kamal Omar v United Overseas Bank (Malaysia) Bhd &

Other Appeals [2018] 5 CLJ 657 FC-decided on 3 May 2018

(ii) Section 8 (1)(b) IA

All the property of the bankrupt shall become divisible among his
creditors and shall vest in the Director General of Insolvency who
shall be the receiver, manager, administrator and trustee of all
properties of the bankrupt.

(iii) Section 8(2A) IA

No secured creditor shall be entitled to any interest in respect of his

debt after the making of a receiving order if he does not realize his
security within the prescribed time from the date of the receiving
order:

• RHB Bank Bhd v Ya'acub Mohd Khalib [2008] 1 CLJ 80

Professional Practice 603

(iv) Cause of action vested with the Official Assignee:

• Section 38(1)(a) IA
• Chin Kon Nam & Anor v Chai Yun Phin Development Sdn. Bhd
[1996] 4 MLJ 271 / [1996] 1 CLJ 444
• Chua Tin Hong, Re Ex parte Castrol (M) Sdn. Bhd [1997] 2
AMR or [1997] 3 CLJ Supp 174 as to the meaning of 'action' in
section 38(1)(a) BA: inapplicable to conveyance of property
• Re Khoo Kim Hock [1974] 2 MLJ 29
• Goh Eng Hwa v MS Laksamana Realty Sdn Bhd (2004) 3 MLJ
97 (CA)
• Akira Sales & Services (M) Sdn Bhd v Nadiah Zee Abdullah &
Another Appeal [2018] 2 CLJ 513 FC-decided on 8 January
2018

(v) No necessity to withdraw the action but only to obtain the sanction
of the Official Assignee where the Plaintiff was made a bankrupt only
after service of the Summons on the Defendant:

• Section 38(1) IA - Richland Trade & Development Sdn Bhd v

UMBC Bhd (1996) 4 MLJ 233

(b) It is the bankruptcy order that vests all the property of the bankrupt upon
the Director General of Insolvency which property then becomes available
for division among the creditors and the Director General of Insolvency
shall forthwith after the bankruptcy order take possession of the deeds,
books and documents of the bankrupt.

• Section 8(1)(b) and Section 55 IA

(c) Property that do not pass to Official Assignee:

• Doctrine of Relation back

Professional Practice 604

o section 47(1) and (2) IA

o Abu Bakar bin Jafar & Anor v Malayan Banking Bhd [1991] 2
MLJ 487 / [1991] 2 CLJ Rep 247 / [1991] 1 CLJ 492
o Official Assignee of the estate of Koh Liang Hee (a bankrupt) v
Koh
o Thong Chuan & Anor (1997) 5 MLJ 136 / [1997] 2 CLJ Supp
241
o See also Koh Thong Chuan v The Official Assignee of the
Property of Koh Liang Hee, a bankrupt [2003] 1 MLJ 113, CA /
[2003] 1 CLJ 125

(d) Voluntary Settlement and Protection of bona fide transactions without

notice

• Sections 52 and 53 IA
• OA v Ngu Ung Yong (1988) 2 MLJ 264 / [1987] 1 LNS 56
• Koh Thong Chuan v The OA of the Property of Koh Liang Hee, a
Bankrupt & Anor [2003] 1 MLJ 113 / [2003] 1 CLJ 125
• Lim Chiew v Lee Chao Yong & Anor * Another Appeal [2018] 1 LNS
1025 CA-decided on 30 July 2018

(e) Sale of land

• Re Yii Heng Kiew Ex parte Siong Line (Pte) Ltd (1987) 2 MLJ 478
• Chua Tin Hong Ex parte Castrol (M) Sdn. Bhd (1997) 2 AMR 125 /
[1997] 3 CLJ Supp 174

(f) Disqualification and disabilities of bankrupt

• Sections 36 and 38 IA

• Tong Soon Tiong & Ors v FA Securities Sdn Bhd [2013] 2 CLJ 448
FC-decided on 16 January 2013
Professional Practice 605

8. Proceedings Consequent to Adjudication

(a) Proof of Debts: section 42 and Schedule C IA – Malayan Banking Bhd v

Boau Yoon Fut [2014] 9 CLJ 429 CA-decided on 28 October 2014
(b) Statement of affairs: section 16 IA – Lim Tee Keong v HLG Securities Sdn
Bhd [2016] 4 CLJ 840 CA- decided on 3 March 2016
(c) First and other creditors' meetings: section 15 IA
(d) Public Examination: Section 17 IA – Public Bank Bhd v Choong Yew Wah
[2014] 5 CLJ 695 CA-decided on 26 February 2014

9. Composition or Scheme of Arrangement

• Sections 18 IA – Re Hashbudin Hashim; Ex P Citic Ka Wah Bank Ltd

[2009] 5 CLJ 170 HC-decided on 5 February 2009

10. Disclaimer: Director General of Insolvency’s rights – section 59 IA

(a) Tenancy:

• Re Karuppiah [1962] MLJ 389

(b) Administration in Bankruptcy of Deceased's Insolvent Estate:

• Section 122 IA – Re Badan Pengurusan Bersama Kondominium

Lagenda [2017] 1 LNS 1796 FC-decided on 27 October 2017

(c) Director General of Insolvency

• Trustee of Debtors Estates

• Duties and responsibilities

o Sections 70 – 73 IA
Professional Practice 606

11. The Bankruptcy Court and Appeals

• Sections 88 – 92 IA

• Section 93(3) IA (similar to 93(3) of Bankruptcy Act 1965):

- principle that the exercise of the High Court's powers under s. 93(3) of
the BA 1967 is limited to correctible clerical or minor error, which cause
no prejudice to the judgment debtor - see the Federal Court decision
(Majority) in AmBank (M) Bhd & Anors v Lim Sue Beng [2019] 7
CLJ 289.

• Section 95 IA (similar to section 95 of the Bankruptcy Act 1965):

-the scope of our s. 95 is limited. It allows a substitution of a petitioner or

providing the Director General of Insolvency carriage of the proceedings
where a petitioner does not proceed with diligence. The said provision
also does not apply when a co-petitioner who had received his portion of
the judgment sum, wished to cease from being a party to the bankruptcy
proceedings - see the Federal Court decision (Majority) in AmBank
(M) Bhd & Anors v Lim Sue Beng [2019] 7 CLJ 289.

• In light of the above decision, the Federal Court (Majority decision) in

AmBank (M) Bhd & Anors v Lim Sue Beng [2019] 7 CLJ 289 held that
where a petition is filed by joint Petitioners and one petitioner intends to
withdraw from the Petition (due to the debtor paying off its debt to the
withdrawing Petitioner), the Co-Petitioners may not amend the Petition to
withdraw or substitute the Petitioner whose debt has been paid. There
can be no amendment to the Creditor’s Petition to recharacterize the act
of Bankruptcy due to the withdrawal or substitution of a co-petitioner
Professional Practice 607

12. Discharge of bankrupt

• Sections 33 – 35 IA

o Re Lau Kah Lay and Tang Kuong Tiew, ex parte cold storage
(Malaysia) Bhd (1998) 2 AMR 1347 / [2001] 3 CLJ 960
o Re Ng Seng Heng, ex p Mayban Securities Sdn Bhd [2003] 7 CLJ 252
o Re Mohana Sundari d/o M Subramaniam ex p United Prime
Corporation Bhd (2004) 2 AMR 141 / [2004] 1 CLJ 624
o Re Siow Ah Moi, ex-parte United Orient Leasing Co Bhd [2007] 3
MLJ 713
o Lim Tee Keong v HLG Securities Sdn Bhd [2016] 4 CLJ 840 CA-
decided on 3 March 2016
o Lok Kew Ex-parte: Nam Fatt Marketing Sdn Bhd & Another case
[2019] 1 LNS 1162.

13. Annulment of Bankruptcy Order

• Section 105 IA

o Re Seow Yin Foong, ex parte United Orient Leasing Co Bhd & Anor
[1994] 2 CLJ 845
o Bungsar Hill Holdings Sdn Bhd v Dr Amir Farid Datuk Isahak [2003]
4 MLJ 1; [2005] 2 CLJ 809 (FC)
o Affin bank Bhd v Abu Bakar Ismail [2017] 7 CLJ 282 CA-decided on 6
March 2017

• The effect of the Annulment of Bankruptcy Order

Professional Practice 608

B. WINDING-UP

1. Winding up by the court

(a) Circumstances in which company may be wound up

• Section 465 (1) (a) – (l) Companies Act 2016 (CA)

• International Construction & Civil Engineering Sdn Bhd v Jittra Sdn

Bhd & Ors [2018] 1 LNS 1252 CA-decided on 7 September 2018

(b) The court may order the winding-up if the company is unable to pay its
debts.

• Section 465 (1) (e) CA

(c) A company shall be deemed to be unable to pay its debts if:

(i) a creditor to whom the company is indebted in a sum exceeding

RM500.00 then due has served on the company by leaving at the
registered office a demand requiring the company to pay the sum so
due and the company has 21days after the service of the demand
neglected to pay the sum or to secure or compound for it to the
satisfaction of the creditor - section 466(1)(a) CA

(ii) execution issued on a judgment, decree or order of any court in

favour of a creditor of the company is returned unsatisfied in whole
or in part -section 466(1)(b) CA

(iii) it is proved to the satisfaction of the court that the company is

unable to pay its debts

o Section 466(1)(c) CA
Professional Practice 609

(d) A Petition to wind up a Company shall be filed within 6 months of the

notice of demand in Section 466(1) (a) CA

• See Section 466 (2) CA.

(e) whether leave of court required if more than 6 years since the date of
judgment

• O. 46 r 2 Rules of High Court

• Wangsini Sdn. Bhd v Grand United Holdings Bhd [1997] 3 AMR 2976
• Chow Seek Kai v Allied Capital Sendirian Berhad [2010] MLJU 904 HC

(f) The test of inability to pay debts is that of commercial insolvency

• Malayan Plant (Pte) Ltd v Moscow Narodny Bank Ltd [1980] 2 MLJ
53
• Re Hong Huat Realty (M) Sdn Bhd UAB (Bhd) v Hong Huat Realty
[1987] 2 MLJ 502
• MBF Finance Bhd v Sri Hartamas Development Sdn. Bhd [1992] 1
CLJ 160
• Adopted by Court of Appeal in Lafarge Concrete (M) Sdn Bhd v Gold
Trend Builders Sdn Bhd [2012] 6 MLJ 817-decided on 28 April 2011
and also by High Court in PECF Bhd & Anor v Merino-ODD Sdn Bhd
& Ors [2009] 3 MLJ 362-decided on 3 March 2009

(g) Statutory notice of demand:

(i) the debt must be a liquidated sum:

• Section 466 (1) (a) CA

• Ng Ah Kway v Tai Kit Enterprise Sdn. Bhd. [1986] 1 MLJ 58.
• Adopted by Court of Appeal in Gulf Business Construction (M)
Sdn Bhd v Israp Holding Sdn Bhd [2010] MLJU 380-decided on
10 March 2010
Professional Practice 610

• And also by High Court in Christopher Michael Cheow v Ans

Builders Sdn Bhd [2012] 10 MLJ 359-decided on 26 March 2012

(ii) service of notice to the registered office

• Re Yap Kim Kee v Sons Sdn Bhd [1990] 2 MLJ 108

• Summit Co v Nikko Products [1985] 1 MLJ 68 / [1985] CLJ Rep
304
• Oh Keat Seng v Desa Minium Jaya Sdn Bhd [2004] 7 CLJ 43
• UMBC v Richland [2000] 1 MLJ 385 FC / [2000] 1 CLJ 57
• Ann Joo Metal Sdn Bhd v Pembenaan My Chaya Sdn Bhd
[2000] 5 MLJ 708 / [1999] 1 LNS 157
• Carrier (Malaysia) Sdn Bhd v Kemajuan Amoy Bhd [2008] 1
LNS 340
• Adopted by High Court in Lonpac Insurance Berhad v Kesuma
Murni Sdn Bhd [2017] MLJU 977-decided on 23 March 2017

(iii) irregularities in the notice of demand

• Kampat Timber Industries Sdn. Bhd. v Bensa Sdn. Bhd [1990]

2 MLJ 46 / [1990] 2 CLJ Rep 189
• Ho Siew Choong & Ors v Everworth Sdn [2005] 2 CLJ 273
• Sakuragawa (S) Pte Ltd v Perkapalan Mesra Sdn Bhd [2007] 1
LNS 417
• Lai Yak Kee v. Pembinaan Alam Cemerlang Sdn Bhd [2012] 1
LNS 1464 (FC)
• Midflex Advisory Sdn Bhd v Alamrio Properties Sdn Bhd [2018]
1 LNS 1435

(h) failure to quantify the interest due on the judgment sum

• Sri Hartamas Development Sdn Bhd v MBF Finance Bhd [1992] 1

MLJ 313 / [1992] 1 CLJ 637
Professional Practice 611

• YPE Consultancy Service Sdn Bhd v Heller Factoring (M) Sdn Bhd
[1996] 2 MLJ 482/ [1996] 3 CLJ 51

(i) Whether section 6(3) of the Limitation Act 1953 makes the notice of
demand bad

• Wangsini Sdn. Bhd. v Grand United Holdings Bhd [1997] 3 AMR

2976

(j) A company has not neglected to pay the notice of demand if the debt is
disputed on substantial grounds/abuse of process

• Securicor (M) Sdn. Bhd v Universal Cars Sd. Bhd [1985] 1 MLJ 84
• Ng Ah Kway v Tai Kit Enterprise Sdn. Bhd [1986] 1 MLJ 58 / [1984]
1 LNS 164
• Wangsini Sdn. Bhd. v Grand United Holdings Bhd [1997] 3 AMR 2976
/ [1997] 5 CLJ 664
• Malta Timber Product Sdn Bhd v N & P (Instructions Sdn Bhd)
(2004) 1 MLJ 119 / [2003] 7 CLJ 569
• Oh Keat Seng v Desa Minium Jaya Sdn Bhd [2004] 7 CLJ 4
• Dataran Rentas Sdn Bhd v BMC Construction Sdn Bhd [2007] 6 CLJ
613 (CA)
• Nadi Bumi Resources Sdn Bhd v UI Lead Sdn Bhd [2018] 1 LNS 1602
CA-decided on 18 October 2018

2. Winding-up Procedures

(a) Service of statutory notice of demand

• section 466 (1) (a) CA

(b) Petition (Form 2) can be filed upon expiry of notice of demand (3 weeks)

• rule 23 Companies (Winding-Up) Rules 1972 (CR)

Professional Practice 612

• KTS News Sdn Bhd v See Hua Realty Berhad [2017] 1 LNS 1562 HC-
decided on 20 September 2017

(c) Affidavit verifying petition to be sworn and filed within 4 days after the
petition presented (Form 7): rule 26 CR

• YPE Consultancy Service Sdn. Bhd v Heller Factoring (M) Sdn. Bhd
[1996] 2 MLJ 482/ [1996] 3 CLJ 51.
• Hong Leong Finance Bhd v Delta Drive (M) Sdn Bhd [1999] 6 MLJ
239 / [1999] 6 CLJ 62
• Maril-Rionebel (M) Sdn Bhd & Anor v Perdana Merchant Bankers Bhd
and Other Appeal [2001] 4 MLJ 187 / [2001] 3 CLJ 248
• Pontian United Theatre Sdn Bhd v Southern Finance Berhad [2006]
1 CLJ 1067 CA-decided on 24 February 2006

(d) Service on respondent, Official Receiver and Registrar of Companies

• rule 25 CR

(e) Advertisement in the Gazette and in 2 local newspaper 7 days before

hearing

• rule 24 CR
• Re NKM Holdings Sdn. Bhd. (1985) 2 MLJ 390;

• NKM Holdings Sdn Bhd v Pan Malaysia Wood Bhd (1987)1 MLJ 39 /
[1984] 1 LNS 102
• Bank Utama (M) Sdn Bhd v GKM Amal Bhd [2000] 5 MLJ 657
• Savant-Asia Sdn Bhd v Sunway PMI-Pile Construction Sdn Bhd
[2018] 1 CLJ 191 CA-decided on 8 February 2007

(f) Certificate by the Registrar

• rule 32 CR
Professional Practice 613

• Blue Valley Plantation Bhd v Periasamy Kuppannan & Ors [2011] 5

CLJ 481 FC-decided on 15 April 2011

(g) Notice of intention to appear on hearing (Form 8) to reach the address

not later than 12.00 o'clock noon of the day previous to the day appointed
for the hearing of the petition

• rule 28 CR

• Malaysian Assurance Alliance Bhd v Comsa Properties Sdn Bhd &

Another Appeal [2011] 7 CLJ 842 CA-decided on 4 July 2011

(h) Affidavit in opposition to a petition to be filed and served 7 days before

hearing and affidavit in reply within 3 days

• rule 30 CR
• Crocuses & Daffodils (M) Sdn Bhd v Development and Commercial
Bank (1997) 3 CLJ 485
• Anvest Corporation Sdn Bhd v Wong Siew Choong Sdn Bhd [2008] 3
CLJ 317
• Kilo Asset Sdn Bhd v. Hew Tai Hong [2016] 2 CLJ 365 (FC)
• Hock Seng Lee Timber Sdn Bhd v. Yii Chi Hau & Anor [2017] 3 CLJ
104 (CA)
• Nadi Bumi Resources Sdn Bhd v UI Lead Sdn Bhd [2018] 1 LNS 1602
CA-decided on 18 Otober 2018

(i) Notice and service of winding up order

• rule 34 CR (Forms 10, 11 and 12)

• Borhan Mohd Doya v Maha Persada Capital Sdn Bhd; Dato’ Lr Hj Yusni
Meon (Proposed Intervener) [2017] 1 LNS 1779 HC-decided on 20
October 2017
Professional Practice 614

3. Whether the Rules of Court 2012 have any application in winding-up

proceedings

• Appendix C of Rules of Court 2012 ‘List of Exempted Laws’

• Lyn Country Sdn Bhd v EIC Clothing Sdn Bhd [1997] 4 MLJ 198
• Jerry Ngiam Swee Beng v Abdul Rahman bin Mohd Rashid & Anor [2001]
1 MLJ 567
• Eastool Industries Sdn Bhd v Getfirms Electronics (M) Sdn Bhd [2001] 2
MLJ 641

4. Formal Defects

• No proceedings under the CA or CR may be invalidated by any formal

defect or irregularity unless the Court is of opinion that substantial
injustice has been caused by the defect or irregularity, and that the
injustice cannot be remedied by any order of the court

o Rule 194 (1) CR

o Ann Joo Metal Sdn Bhd v Pembenaan MY Chahaya Sdn Bhd [2000] 5
MLJ 708
o Pioneer Conctrete (M) Sdn Bhd v Celini Corp Sdn Bhd [1998] 3 MLJ
810
o Hong Leong Finance Bhd v Delta Drive (M) Sdn Bhd [1999] 6 MLJ
239 / [1999] 6 CLJ 62
o Winerich Sdn Bhd v Alpha Atlas Management Sdn Bhd [2003] 6 MLJ
547 / [2003] 7 CLJ 259
o Kilo Asset Sdn Bhd v Hew Tai Hong [2016] 1 MLJ 785 FC-decided on
23 November 2015
Professional Practice 615

PART III

ADMINISTRATION OF ESTATES

1. General

(a) Estates are of three kinds:

(i) testacy - deceased has left behind a valid will

(ii) intestacy - deceased has left no valid will

(iii) partial intestacy - deceased has left a will but it does not dispose off
his entire estate

(b) Wills

• Eu Boon Yeap & Ors v Ewe Kean Hoe [2008] 2 MLJ 868

Evidence – Burden of proof – Shifting of – Probate of will – Proof of

testamentary incapacity of deceased – Burden of proving
testamentary capacity and due execution – Whether lies on
propounder of will – Whether burden of proof may shift from
challenger or impugner to propounder

• Manuel Frank Simon & Anor v Jean Sharin a/p DJ Williams [2008] 7
MLJ 290

Succession - Probate: Testamentary capacity - Naive, gullible, easily

influenced, depressed and withdrawn - Whether testator had
testamentary capacity

Validity of will - Principles applicable - Whether deceased had

testamentary capacity - Whether there is undue influence or
coercion

• Sarah bt Abdullah @ Hew Lee Ling (p) v Kwok Peck Wah (p) & Anor
Professional Practice 616

[2009] 6 MLJ 385 - Succession – Probate - Validity of will - Petition

for probate dismissed - Appeal against – Whether trial judge erred in
finding that deceased did not have testamentary capacity to execute
will – Whether there were suspicious circumstances surrounding
making of will

• Karn Woon Lin & Anor v Cheah Chor Bok [2010] 5 MLJ 834

Succession – Will – Execution – Allegation of mental disorder or

insane delusion – Whether deceased had necessary testamentary
capacity while executing will – Whether being in a confused state an
incapacity

– Whether deceased fully oriented and rational and aware of

everything – Material point of time to consider testator’s mental
capacity

Succession – Will – Execution – Validity of – Will not signed but only

thumbprint – Whether sufficient medical reason to explain
thumbprinting – Whether thumbprint accepted mode of attestation

• In the matter the estate of Chen Ngow @ Chen Seong Chia,

deceased and another petition [2011] 6 MLJ 737

Succession – Will – Validity – Probate sought in respect of

photocopies of two wills of same date but bearing different marks of
deceased – Original copies of wills not filed – Suspicious
circumstances surrounding making of wills – Deceased terminally ill
and mentally weak at time wills made – No evidence to show
deceased had testamentary capacity to execute wills – Whether wills
forgeries

• Ch’ng Kheng Phong v Chung Keng Huat & Ors [2011] 8 MLJ 32

Succession – Will – Validity of will – Existence of second will –

Validity of first will established – Second will surfacing after 100 days
Professional Practice 617

prayer of death of deceased – Whether second will a forgery –

Burden of proof on propounder – Whether there was evidence
regarding circumstances leading to finding of second will –
Suspicious circumstances in relation to preparation of second will –
Failure to estate identity card numbers of deceased, executors and
trustees – Whether second will duly witnessed

• Randolph Yap Pow Kong & Anor v Yvonne Yap Yoke Sum (f) & Ors
[2011] 3 MLJ 556

Succession – Will – Execution – Allegation that testator had no

testamentary capacity – Relevant point of time to determine
testamentary capacity – Whether ailing memory and weak mental
power vitiate testamentary capacity – Testator diagnosed with
Parkinson disease and mild dementia – Whether testator was of
sound disposing mind when he executed the will – Whether undue
influence, coercion or force exerted over testator

• Choo Mooi Kooi @ Choo Soo Yin v Choo Choon Jin @ Jimmy Choo
and other suits [2012] 2 MLJ 691

Succession – Will – Validity – Deceased’s nephew applied for and

obtained grant of probate – Plaintiffs challenged validity of will –
Testamentary capacity – Whether deceased had testamentary
capacity to execute will – Whether deceased lacked testamentary
capacity to execute memorandum of transfer (“MOT”) – Whether
there were suspicious circumstances surrounding making of will and
MOT

• Hiroto Watanabe v Law Yen Yen & Anor [2012] 8 MLJ 202

Succession – Will – Validity – Mutual wills – Criteria to prove mutual

wills – Husband and wife making almost identical wills - Wife
subsequently executed another will leaving nothing for husband –
Whether wife’s subsequently will invalid
Professional Practice 618

• Selvarajoo a/l Palaniappa Pillai v Paramasivam a/l Palaniappa Pillai

[2013] 5 MLJ 748

Succession – Probate – Grant of probate – Plaintiff challenged

veracity of will after defendant obtained grant of probate – Whether
plaintiff had locus standi to commence action – Presumption of
marriage – Whether deceased and plaintiff’s mother were married –
Whether plaintiff legitimate son of deceased – Testamentary
capacity – Whether deceased had testamentary capacity to execute
will – Whether plaintiff raised suspicious circumstances that cast
doubt on testamentary capacity of deceased

• Tok Siew Ling & Anor v Low Chee Choy [2014] 9 MLJ 787

Evidence – Documentary evidence – Agreed bundle – Document

classified as Part B document – Meaning – Whether
authenticity not disputed – Whether maker not required to testify on
authenticity –Whether contents of documents may be accepted as
unrebutted if unchallenged

Succession - Probate – Testamentary capacity – Whether defendant

discharged burden of proving testamentary capacity – Whether
plaintiff’s allegation that deceased’s thumbprint affixed by defendant
when deceased was heavily sedated and not fully conscious true-
Rules of the High Court 1980 O 72 r 2(1)

Succession – Will – Validity – Deceased’s cohabiting partner applied

for and obtained grant of probate – Deceased’s siblings (plaintiffs)
challenged validity of will – Whether deceased had testamentary
capacity to execute will – Whether there were suspicious
circumstances surrounding making of will – Whether defendant
discharged burden of proving testamentary capacity and due
execution of will – Whether plaintiff’s allegation that deceased’s
thumbprint affixed by defendant when deceased was heavily
Professional Practice 619

sedated and not fully conscious true – Rules of the High Court 1980
O 72 r 2(1)

• Tan Pui Sim v Tan Chong Ton @ Tan Bon Seng [2014] 10 MLJ 183

Contract – Sale and purchase of land – Validity – Sale of land done

through power of attorney (‘PA’) – Vendor subsequently challenging
PA on the ground that vendor lacked capacity to enter into the PA –
Whether vendor can rely on his own failure to comply with s 60(4) of
the Probate and Administration Act 1959 – Purchaser seeking to
enforce PA – Unauthorised amendments made to PA – Purchase
price not paid to vendor – Whether there was valid sale and
purchase transaction

Succession – Administration – Sale of land – Formal sanction of

court – Whether disposal of property without sanction of court
voidable at the instance of disposer – Sale only voidable if lack
sanction challenged by some other interested party – Probate and
Administration Act 1959 s 60(4) & (6)

• Lau Siang Kok, Lionel v Lau Cho Kun @ Lau Yu Chak, Datuk Seri
Panglima [2014] 11 MLj 411

Succession – Probate and administration – Wills – Order to bring in

will – Demand for executor to produce last will and testament of
deceased – Whether plaintiff was ‘person’ interested’ under s 41 of
the Probate and Administration Act 1959 – Plaintiff not a beneficiary
under the will – Failure to prove that plaintiff was natural son of
deceased – Whether there was application for grant of probate
made by plaintiff – Whether application refused – Probate and
Administration Act 1959 s 41
Professional Practice 620

Words and Phrase – Meaning of ‘any person interested’ s 41 of the

Probate and Administration Act 1959

• Ng Kwok Seng & Anor v Mei Ling Ng (f) [2015] 8 MLJ 455

Equity – Estoppel – Res judicata – Applicability of principle of

ademption – Matter earlier decided and resolved by Singapore High
Court – New proceeding clearly part of the subject matter of earlier
litigation – Whether present claim estopped by res judicata/issue
estoppel

Succession – Will – Bequest – Testator leaving estate to daughter

and two sons – Whether monies held in joint accounts gifted to
daughter inter vivos – Whether monies in joint accounts to be
considered an ademption by satisfaction of part of the daughter’s
entitlement under the will – Whether presumption against double
portions applied – Whether principle of ademption applicable –
Whether presumption rebutted by express intention of the testator –
Whether matter earlier decided and resolved by Singapore High
Court – Whether present claim estopped by res judicata/issue
estoppel

• Jasbir Singh a/l Dharan Singh v Gurmeet Singh a/p Mahinder Singh
& Anor [2015] 11 MLJ 765

Probate and administration – Administration – Administration action

– Deceased executed will and bequeathed property to nephew –
Nephew submitted application for grant of probate – Grant of
probate allowed but could not be issued – Deceased’s wife made
application for letter of administration pertaining property and
transferred property to her home – Whether deceased’s wife knew
Professional Practice 621

of will – Whether nephew’s right over property prevailed over right

of deceased’s wife

• Chin Huat Yean @ Chin Chun Yean & Anor v Chin Jin Thien (2019) 5
MLJ 673

2. Administration of an estate

(a) What does it mean?

(b) Why is a grant necessary? (see in the context of section 64 Probate and
Administration Act 1959 (PAA))

• Chor Phaik Har v Farlim Properties Sdn Bhd [1997] 4 CLJ 393
• Futuristic Builders Sdn Bhd v Harinder Singh & Ors [2008] 2 MLJ 273
• Karn Woon Lin & Anor v Cheah Chor Bok [2010] 5 MLJ 834 -
Succession - Probate - Testamentary capacity - Allegation that
testator had no testamentary capacity - Mental disorder or insane
delusion - Onus of proof

Succession - Will - Execution - Validity of - Will not signed but only

thumb printed - Whether sufficient medical reason to explain thumb
printing - Whether thumbprint accepted mode of attestation
Randolph Yap Pow Kong & Anor v Yvonne Yap Yoke Sum (f) & Ors
[2011] 3 MLJ 556

• Karn Woon Lin & Anor v Cheah Chor Bok [2013] 3 MLJ
457Succession – Probate – Validity of will – Conflict of wills – Parties
appointed as executors, trustees and beneficiary of two different
wills – Prevalence of will – Burden of proving testamentary capacity
– Whether there were suspicious circumstances that vitiated making
of second will

• Dato’ Ramesh a/l Rajaratnam v Datin Zaleha bt Abd Rahman & Ors
[2014] 6 MLJ 651
Professional Practice 622

Succession – Administration –Locus standi – Whether administrators

of deceased’s estate who had yet to extract grant of letters of
administration had locus to file bankruptcy notice on behalf of estate
– Whether principle well established that administrator could not
maintain legal proceedings without sealed grant of administration –
Whether exception to general rule only allowed for limited purpose
of ‘protecting and preserving estate’s assets’ – Decision of Federal
Court in Al Rashidy bin Kassim & Ors v Rosman bin Roslan [2007] 4
MLJ 297- Whether filing of bankruptcy notice did not fall within that
exception

(c) Executor de son tort

• Jigarlal Kantilal Doshi v Amanah Raha Bhd (as the administrator of

the estate of the late Kantilal Prabhulal Doshi, deceased) and other
appeals [2014] 6 MLJ 629

Succession – Administrators – Locus standi – High Court appointed

Amanah Raya Bhd (‘ARB’) administrator of deceased’s estate –
Without applying for grant of letters of administration ARB filed
actions on behalf of estate – High Court granted ARB letters of
administration pendente lite to enable it to prosecute trial of actions
– Whether ARB had locus standi to act on behalf of estate at trial

Whether actions filed or continued by ARB on behalf of estate

without grant of letters of administration were nullities – Whether
letters of administration pendent lite only had prospective effect
from date of grant and could not retrospectively cure/regularise
nullities

(d) Contentious probate proceeding

• Deborati Das Gupta v Deb Brata Das Gupta [2015] 7 MLJ 605
Professional Practice 623

Succession – Administration – Appointment – Appointment of

additional administration – Whether sufficient cause shown –
Whether estate fully and properly administered – Failure to render
accounts – Probate and Administration Act 1959 s 34

Succession – Probate – Contentious probate proceeding – Probate

action – Weather includes application for action to be commenced
by writ – Whether action granted – Rules of High Court 1980 O 72 r
2 – Probate and Administration Act 1959 ss 2 & 34

• Kek Siong Uteh v Aw Siew Keon [2016] 4 MLJ 356

Succession – Will Invalid will – Whether suspicious circumstances

surrounded making of second will by deceased following his
marriage to appellant – Whether there was evidence before trial
court to hold on balance of probabilities that impugned will invalid –
Whether no cogent reason existed for appellate court to disturb
findings of fact made by trial judge on the evidence

• Re Soo Chin En (F) [2016] 8 MLJ 24

Probate and Administration – Administration – Administration action

– Applicant named sole executrix and trustee of deceased’s estate –
Petition for grant of probate to administer deceased’s estate -
Application to transfer equal shares of property as expressed in will
– High Court granted leave to applicant in capacity as administrator
and not as executrix – Applicant applied to land office in capacity as
executrix of deceased’s estate to transfer property – Land Office
rejected application – Application required to emend ‘list of assets’
attached to grant of probate – Whether application to amend ‘list of
assets’ in grant of probate ought to be allowed
Professional Practice 624

3. Jurisdiction

(a) Testacies

• Jurisdiction with the High Court [(but see section 17 of the Public
Trust Corporation Act 1995 (`PTCA’)]

(b) Intestacies

(i) "small estates" - jurisdiction with the District Land Administrator.

See section 3(2) of the Small Estates (Distribution) Act 1955 (‘SEDA’)
for definition of a "small estate"

(ii) estates satisfying section 17 PTCA

(iii) other intestacies - High Court has exclusive jurisdiction

NOTE: The Estate Duty Enactment 1941 is repealed by the Finance Act 1992.
Estate duty is no longer applicable in respect of any estate of person
who dies after 1 November 1991.

4. Types of grants of representations by the High Court

(a) Probate - where deceased has left a valid will and the executor is able and
willing to prove the will.

(b) Letters of Administration - where deceased has left no valid will.

(c) Letters of Administration with Will Annexed - deceased has left a valid will
but there is no proving executor.
Professional Practice 625

(d) Letters of Administration De Bonis Non - a previous grant was made, but
executor or administrator died, absconded, etc. before the administration
was completed.

(e) Resealing - Where grant granted by court outside Malaysia - has to be

sealed with the seal of the High Court to be effective in Malaysia (Pt. IV,
sections 51-58, PAA).

• Refer O.71 ROC – Non-Contentious Probate Proceedings

5. Grants where deceased died domiciled outside Malaysia (O.71 r.25

ROC); Grants to attorneys (O.71 r.26 ROC)

• Futuristic Builders Sdn Bhd v Harinder Singh & Ors [2008] 2 MLJ 273

6. Rights, Powers and Duties of Personal Representatives

• Yusof bin Ahmad bin Talib & Ors v Hong Kong Bank Trustee (S) Ltd
[1989] 3 MLJ 84
• Grayburn v Clarkson (1868) LR Ch App 605
• Bank Bumiputra Malaysia Bhd v Yap Kiow Moi & Ors (1956) 3 MC 82
• See sections 4, 6 and 16 Trustee Act 1949
• Fong Ah Tai & Ors v Fong Yoon Heng & Anor [2004] 7 MLJ 128
• Dato’ Ramesh a/l Rajaratnam v Datin Zaleha bt Abd Rahman & Ors [2014]
6 MLJ 651

Succession - Administration – Locus standi – Whether administrators of

deceased’s estate who had yet to extract grant of letters of administration
had locus to file bankruptcy notice on behalf of estate – Whether principle
well established that administrator could not maintain legal proceedings
without sealed grant of administration – Whether exception to general
rule only allowed for limited purpose of ‘protecting and preserving estate’s
assets’ - Decision of Federal Court
Professional Practice 626

• In Al Rashidy bin Kassim & Ors v Rosman bin Roslan [2007] 4 MLj 297 –
Whether filing of bankruptcy notice did not fall within that exception

7. Testacies

Where there is a proving executor - application for grant of probate (Forms 6 &
159 ROC)

(a) Application must be verified by oath and satisfy O. 71 ROC

(b) If application is made after a lapse of 3 years from death, the reason for
the delay must be set out in the originating summons

(c) O. 71 r. 5(6) ROC If applicable, file estate duty affidavit

• Sections 33 and 45 Estate Duty Enactment 1941

NOTE: Estate duty abolished in 1992 and not applicable to estate of

person who dies after 1 November 1991.

(d) Evidence of due execution

(i) where there is no attestation clause or where attestation clause is

insufficient, Registrar shall require affidavit of due execution from
attesting witness or from any other person present at the time of
execution.

(ii) If no such affidavit can be obtained, Registrar may accept affidavit

of any person he may think fit to show that the signature on the will
is in the handwriting of the deceased.

(iii) Blind & illiterate testators

Professional Practice 627

(e) After grant is approved extract it. No administration bond required. Not
that grant cannot be extracted unless certificate of the Collector of Estate
Duty (where relevant) is obtained

(f) Collect assets and pay debts.

• Section 32 Trustee Act 1949

(g) Distribute the assets in accordance with the terms of the will. Vesting.

(i) Movable property

(ii) Immovable property

• transmission

• vesting - sections 60(4) and 72(2) PAA

• Re Estate of Teoh Cheow Choon [1994] 4 CLJ 575

(h) Completing the administration

Where there is no proving executor petition for letters of administration

with will annexed. Procedure basically the same as in the case of
intestacies (other than "small estates" and cases under section 17 PTCA).

Sale of land - Determination of price - Whether at time of offer or at time

of hearing of application for sanction to sale

o Ong Thye Peng v Loo Choo Teng & Ors [2008] 4 MLJ 31

8. Intestacies

(a) "Small estates"

• Refer SEDA
Professional Practice 628

o definition - See Pang Cheng Lim v Bong Kim Teck & Ors [1997]
4 CLJ 414

o procedure from filing of petition to distribution

o advantages

o "exclusive" jurisdiction

• Appeals

NOTE:

▪ Jurisdiction of High Court to grant probate relating to small estates

▪ Power of Registrar High Court to transfer to Collector of Small

Estates any petition relating to small estates

▪ sections 4, 5, 6 and 7 SEDA

(b) Estates falling within section 17 PTCA

(i) definition

(ii) beneficiaries to choose/ PTC not bound to accept estate

(iii) mode of administration

(iv) advantages

(c) Other intestacies

(i) letters of administration

(ii) personal representative - administrator

Professional Practice 629

(iii) first step - who is to be administrator?

• section 30 PAA

(iv) restrictions

• section 4 PAA

(v) file application, see Form 159 ROC

• In The Estate of Ngau Ken Lock [2002] 4 MLJ 74

Whether Petitioner, an Applicant, "the fittest" person to be

appointed sole administrator - whether Applicant was "fit" to be
appointed co-administrator

(vi) Renunciation of administration.

• section 9(3) PAA (if served with notice of hearing and fails to
appear or file any objection he is deemed to have renounced).

• See also citation procedure below -

o Paramananthan s/o MV Kandiah & Anor v Ganakiamah

d/o Sabapathi Pillay & Anor [2009] 8 MLJ 600

Agreement to renounce - Beneficiaries renouncing rights

to share in property of deceased in favour of
administratrix - Letter of renunciation and consent
executed - Whether renunciation valid and effective -
Whether administratrix had become absolute beneficial
owner of property of deceased.

(vii) estate duty affidavit, if applicable

Professional Practice 630

(viii) the hearing

(ix) administration bond

o O. 71 r. 34 ROC
o sections 2 and 35 PAA
o Form 162 ROC
o Re Tan Ghee Khooi, Dec'd [1958] MLJ 1viii) extracting the
grant

(x) duties of the administrator after grant extracted

(xi) distribution in an intestacy

• movable property

• immovable property

o Paramananthan s/o MV Kandiah & Anor v Ganakiamah

d/o Sabapathi Pillay & Anor [2009] 8 MLJ 600 –
Succession – Distribution of estate – Intestacy -
Beneficiaries renouncing rights to share in property of
deceased in favour of administratrix – Letter of
renunciation and consent executed – Whether
renunciation valid and effective – Whether administratix
had become absolute beneficial owner of property of
deceased

(xii) transmission

(xiii) sale

o Gan Hong Hoe v Aziz Beg [1954] 20 MLJ 202

Professional Practice 631

(xiv) vesting

o section 72(2) PAA

(xv) Entitlement to share - ranking of next-of-kin

o Pang Chuan Cheong & Ors v Oh Kwong Foi & Ors [2007] 8 MLJ
354(xv) Muslim estates

(xvi) Completing the administration

o Chia Siew Li v Liew Khey Cheong (as administrator of the

estate of Liew Fatt Cheong, deceased) & Anor [2010] 3 MLJ
802

Succession - Distribution of estate – Intestacy - Deceased died

intestate - Whether plaintiff spouse of deceased - Whether
entitled to one half of estate - Whether permissible to interpret
earlier Act of Parliament by reference to later Act of Parliament
- Distribution Act 1958 s. 6(1)(b) - Law Reform (Marriage and
Divorce) Act 1976 s. 22 & 27

(d) Entitlement to deceased’s estate

• Chia Siew Li v Liew Khey Cheong (as administrator of the estate of

Liew Fatt Cheong, deceased) & Anor [2010] 3 MLJ 802

• Kausalya a/p M Pathmanathan & Anor v The Legal Representatives

of Jamuna a/p Narayanan, deceased & Anor [2014] 2 MLJ 836

Succession – Letters of administration – List of beneficiaries –

Application by plaintiffs to be included as beneficiaries of estate of
deceased – Validity of marriage between plaintiffs’ mother and
deceased – Whether marriage conducted in conformity with Hindu
law – Whether Hindu law recognizes polygamous marriage –
Whether presumption in favour of valid marriage had been triggered
Professional Practice 632

– Whether presumption rebutted – Whether plaintiffs entitled to be

included in list of beneficiaries

9. Letters of Administration with will annexed

Note the following:

(a) personal representative – administrator

(b) administration bond may be required

10. Letters of Administration De bonis non

• Amanah Raya Bhd (suing as administrator for the estate of Kantilal

Prabhulal Doshi, deceased) v Jigarlal Kantilal Doshi & Ors and other suits
[2013] 7 MLJ 398

Civil Procedure – Estoppel – Estoppel per rem judicature – General rule

forbidding approbation and reprobation – Party estopped by conduct from
raising the issue of locus standi

Succession – Letters of administration pendente lite – Application for –

Grant of probate revoked by court – Petition by Amanah Raya Berhad for
LA pendente lite limited for purposes of continuing and completing
pending legal actions by and against estate – Whether power under LA
pendente lite can be retrospective – Whether doctrine of relation back
applicable – Grant of LA pendente lite essential to preservation and
protection of eatate – LA pedente lite granted – Probate and
Administration Act 1959 s 19

11. Letters of Administration “pendente lite”

• Amanah Raya Bhd (suing as administrator for the estate of Kantilal

Prabhulal Doshi, deceased) v Jigarlal Kantilal Doshi & Ors and other suits
Professional Practice 633

[2013] 7 MLJ 398

Succession – Letters of administration pendente lite – Application for –

Grant of probate revoked by court – Petition by Amanah Raya Berhad for
LA pendente lite limited for purposes of continuing pending legal actions
by and against estate – Whether power under LA pendente lite can be
retrospective – Whether doctrine of relation back applicable – Grant of LA
pendente lite essential to preservation and protection of estate – LA
pedente lite granted – Probate and Administration Act 1959 s 19

12. Partial intestacies

(a) administration of the testamentary estate

(b) administration of the intestacy

13. Benefits of testate succession

(a) avoids delay as executor can proceed straight away to petition for probate

(b) no administration bond required

(c) deceased may choose how his estate should be distributed

14. The Administration of Muslim estates

• Rosmawati binti Sharibun [2002] 4 AMR 4913; [2002] 4 AMR 4913 -

Whether civil court has power to decide on matters in relation to probate
and letters of administration

• Majlis Ugama Islam Pulau Pinang dan Seberang Prai v Shaik Zolkaffily b
Shaik Natar [2002] 4 MLJ 130; [2002] 3 CLJ 664

Jurisdiction of civil court to hear matters under the jurisdiction of Syariah

Court
Professional Practice 634

• Latifah Mat Zin v Rosmawati Sharibun & Anor [2007] 5 MLJ 101

Civil Procedure – Jurisdiction – Conflict of jurisdiction between the High

Court and Syariah Court – petition for letters of administration in civil High
Court involving application of Islamic law of gifts – Whether High Court
had jurisdiction to grant letters of administration – Procedure to be
followed

• Chin Soo Ling & Ors v The Lay Gaik [2010] 9 MLJ 349

Succession - probate - Grant of probate - Capacity to sue for and on

behalf of estate in absence of grant of probate - Whether executor
derived title and authority from will - Whether defendant could institute
action in capacity as executrix before grant of probate

15. Caveats (O. 71 r. 37 ROC)

(a) purpose: no grant is made without notice to caveator (rule 37(1) ROC)

(b) in Form 164 (rule 37(3) ROC) - must state interest

(c) duration 6 months (rule 37(5) ROC)

(d) operation of the system (rule 37(6) ROC)

(e) Registrar must not make any grant if there is effective caveat (rule 37(7)
ROC)

(f) Removal

(i) person interested issues and serves "warning" in Form 165 (rule
37(8) ROC) - must state interest
Professional Practice 635

(ii) appearance by caveator having "contrary interest" in Form 166

within 8 days (rule 37(10) ROC)

(iii) caveator without "contrary interest" but wishing to show cause

against person warning may within 8 days issue and serve a
summons for directions (rule 37(11) ROC)

(iv) If appearance not entered or summons for directions is not served,

caveat may be removed on person warning filing an affidavit (rule
37(12) ROC)

(v) If matter contested (e.g. appearance entered) either summary

disposal or trial under O. 72 ROC.

16. Citation (O. 71 r. 41-44 ROC and s. 9, PAA)

(a) meaning and purpose; types of citation

(b) Caveat; Citation in Form 167; service

(c) Citation to accept or refuse a grant (rule 42(1) ROC).

A person with a prior right who delays or declines to take a grant but
does not renounce may be cited by a person with an inferior right

(d) Citation to executor who has intermeddled to take probate (rule 42(3)
ROC). Cannot be issued until 6 months after testator's death.

(e) Citation to propound a will (rule 43 ROC). To force the persons interested
in an alleged will to seek probate of it if they can. Citor must have
contrary interest.
Professional Practice 636

(f) Procedure

17. Probate Actions - Contentious Probate Proceedings (O. 72 ROC)

(a) meaning - rule 1(2) ROC; examples

(b) commencement - rules 2, 11 ROC(c) Citations in contentious

probate - rules 5, 7, 8 ROC

(c) Succession - Probate - Contentious suit

• Neoh Ah Yan v Ong Leng Choo & Anor [2008] 7 MLJ 151
• Debaroti Das Gupta v Dek Brata Das Gupta [2015] 7 MLJ 605

(c) Default of appearance or pleadings - rules 10 & 14 ROC (note 0. 13 & O.

19 ROC do not apply)

(d) Revocation of grants

(i) Grounds

(ii) Procedure

(iii) Effect of revocation

18. Administration action

• In the Matter of the Estate of Tan Sri Datuk Syed Kechick @ Syed Bakar
bin Syed Mohamed (deceased) [2011] 3 MLJ 665

Probate and Administration – Administration – Administration action –

Widow and daughter of decease petitioned for letters of administration of
Professional Practice 637

deceased’s estate – Sole son of deceased from previous marriage not

joined as petitioner – Petitioners and son all beneficiaries of estate - Son
entitled to substantial share in estate – Son personally objectionable to
petitioners – Whether son should be allowed to be co-administrator –
Whether smooth administration of estate would be disrupted if son made
co-administrator

• Ong Soo Keok & Ors v Ong Soo Kwee (suing as executor of the estate of
Loh Ah Moy @ Loh Siew Keng (P)) 2015 5 MLJ 389

Probate and Administration – Administration – Administration – action –

Action for relief from personal liability – Application for exoneration under
provisions of will – Protection against personal liability – Whether executor
and trustee of estate acted in accordance with provisions and spirit of will
– Whether application of trustee and executor for relief ought to be
entertained or refused – Trustee Act 1949

• Jasbir Singh a/l Dharam Singh v Gurmeet Singh a/p Mahinder Singh &
Anor [2015] 11 MLJ 765

Probate and administration – Administration – Administration action –

Deceased executed will and bequeathed property to nephew – Nephew
submitted application for grant of probate – Grant of probate allowed but
could not be issued – Deceased’s wife made application for letter of
administration pertaining property and transferred to her name – Whether
deceased’s wife knew of will – Whether nephew’s right over property
prevailed over right of deceased’s wife

19. Recent decisions on Succession and Trustees:

• Tho Yow Pew v Chua Kooi Hean [2001] 5 MLJ 578; [2002] 5 CLJ 58
• Ligar Fernandez v Eric Claude Cooke [2002] 5 MLJ 177; [2002] 6 CLJ 152
• Re the estate of Yap Hong Kui deceased - Yap Teck Ngian, petitioner
[2002] 5 MLJ 189
• Lee Ing Chin @ Lee Teck Seng & Ors v Gan Yook Chin & Anor [2003] 2
Professional Practice 638

MLJ 97
• Sethambal Doraiappah & Anor v Krishnavani Muniandy [2004] 1 CLJ 869
• Gan Yook Chin & Anor v Lee Ing Chin & Ors [2004] 4 CLJ 309
• Kuan Kim Hock, In Re [2005] 2 CLJ 708
• Thiong Kai Goh v Yee Bee Eng & Ors [2005] 1 MLJ 431
• Gan Yook Chin (P) & Anor v Lee Ing Chin @ Lee Teck Seng & Ors [2005]
2 MLJ 1
• Khaw Cheng Poon & Ors v Khaw Cheng Bok & Ors & Another Appeal
[2005] 3 CLJ 753
• Kerajaan Malaysia v Yong Siew Choon [2006] 1 MLJ 1 (FC)
• Re Tan Hui Guan, deceased (Phang Siew Fa v Aw Kim Siok) [2006] 3 MLJ
663 (HC - Kuching)
• Priyakumary Muthucumaru & Anor v Gunasingam Ramasingam [2006] 4
CLJ 458
• Yap Teck Ngian v Yap Hong Lang & Ors [2007] 5 MLJ 756 (FC)Al Rashidy
bin Kassim Ors v Rosman bin Roslan [2007] 4 MLJ 297 (FC)
• Futuristic Builders Sdn Bhd v Harinder Singh & Ors [2008] 2 MLJ 273
• Amaravathy d/o V Nadeson & Anor (both as administratixes of the estate
of Ayaduray Sugirtha Lingam, deceased) v Sivaprasagam s/o Nagamany
(as executor of the estate of K Nagamany Nee Sugirtha Letchumy d/o
Ayadurai) [2007] 4 MLJ 319 (CA)
• Ong Thye Peng v Loo Choo Teng & Ors [2008] 4 MLJ 31
• Neoh Ah Yan v Ong Leng Choo & Anor [2008] 7 MLJ 151
• Tan Pui Sim v Tan Chong Ton @ Tan Boon Seng [2014] 10 MLJ 183
• Mohd Aslam Khan Syed Gulam v C Mageswary Chandran & Ors (2020) 1
CLJ 402
• Amanah Raya Bhd v Ong Chin Hoo (2019) 6 CLJ 41

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