LAW245

AM1103D

TITLE: PASS YEAR QUESTION JANUARY 2012

NAME: NUR FARHANA OSMAN (2012176297)

NUR AFFIDA SUFIAN (2012940493)

AUDREYZA AKAU (2012529603)

ANGELA GARNETTE BALANG (2012916945)

PREPARED FOR: MR. IKHWAN NAGUIB

SUBMISSION DATE: 10 MARCH 2014

PART A

Question 3 (b)

The Functions of The YDPA and The Conference of Rulers.

The Yang di-Pertuan Agong and The Conference of Rulers is part of the constitution.
Both of them are supreme. The Yang di-Pertuan agong is appointed once in every five years
from a pool of nine Sultans who head the nine states in Malaysia it is based on the article 32
in Federal Constitution. Yang di-Peruan Agong also is the supreme head of the state in
Malaysia and the acts on the advice of the Parliament and the Prime Minister, who heads the
Cabinet. For the Conference of Rulers, it is a consist of their Royal Highness of Rulers and
the Yand Dipertuan (YDP) Negeri of States nat having a Ruler. Both have its own fuction,
this is function of both. For the Yang di-Peruan Agong is head of the religion of Islam, as
symbolic for the formal event, and proclamation of emergency. While the function of the
Conference of Rulers is electing Yang di-Pertuan Agong and Deputy Yang di-Pertuan
Agong, appointing members of the special court and give consent to the ceremony action.

The first function of the Yang di-Pertuan Agong is head of the religion of Islam.
Under the article 3 clause (5) in the Federal Constitution the Yang di-Pertuan Agong shall be
the Head of the religion of the Islam in the Federal Territories of Kuala Lumpur, Labuan, and
Putrajaya. This is because the religion of Islam in Malaysia are headed by the Yang di-
Pertuan Agong.

The second function of the Yang di-Peruan Agong is as symbolic for the formal
event. For example the Yang di-Pertuan Agong will be attend to the special event only like
day of military. It is because the Yang-di-Pertuan Agong shall be the Supreme Commander
of the armed force of the federation it is based on the article 41 in the Federal Constitution.
Beside that the Yang di-Pertuan Agong also will be attend to the other formal event likes
independent day.

Lastly the function of the Yang di-Pertuan Agong is proclamation of emergency.

Under the clause (1) article 150 in Federal Constitution, if the Yang di-Pertuan Agong is
satisfied that a grave emergency exists whereby the security, or the economic life, or public
order in the Federation or any part thereof is threatened, he may issue o Proclamation of
Emergency making therein a declaration to that effect. For Example the Proclamation of the
Emergency is during the event May 13, 1969 and 1948 to time the communist era.

While the function of the Conference of Rulers, firstly is electing the Yang di-Pertuan
Agong and also electing the Deputy of Yang di-Peruan Agong. The Conference of Rulers
will be elected the Yang di-Pertuan Agong in every five years from a pool of nine Sultans
who head the nine satates in Malaysia. It is because the term of the Yang di-Petuan Agong to
become the head of state are only 5 year, that’s why the the Conference of Rulers are elected
the Yang di-Peruan Agong in every five yaer. Similar to Yang di-Pertuan Agong the
Conference of Rulers will be elect the Deputy of Yang di-Pertuan Agong in every five year
because they are have a same period.

The second function of the Conference of Rulers is appointing members of the special
court. Beside elect the Yang di-Pertuan Agong and the Deputy of Yang di-Pertuan Agong,
the Conference of Rulers also appointed the member of the special court. Based on the article
182 clause (1), there shall be a court which shall be known as the Special Court and shall
consist of the Chief Justice of the Federal Court, who shall be the Chairman, the Chief Judges
of the High Courts, and two other persons who hold or have held office as judge of the
Federal Court or a Hight Court appointed by the Conference of Rulers.

Lastly is give the consent to the ceremony action. In article 38 clause (1) (b), the
Conference of Rulers are can agreeing or disagreeing to the extension of any religious acts,
observances or ceremonies to the Federation as a Whole. If the Conference of Rulers are not
agree with an action event, the event cannot be practise until it get the agreement from the
Conference of Rulers.

this is three function of the Yang di-Pertuan Agong and also three function of the
Conference of Rulers. From this function both of them can practise their responsibilities as
having highest power in the Federation.
Question 3 (C)

The Law Making Process In The Parliament

The law making process is means how to make a law. It’s have many stages during
the process to make the law. This is are stages to make the law start from the first reading,
second reading, house committee, third reading, other house and the last one is royal assent.

Firstly is the first reading, during the first reading the clerk of houses will read the
title of the Bill and also the reasons for its introduction. In the first reading stage also the Bill
not have to debate or amendment, because in this stage the Bill is printed and circulated.

The second stage is the second reading. In this stage the Bill will be debate by the
general principle of the Bill. If the Bill is accepted the Bill will be proceed to the next stage.
If the Bill not accepted or rejected, the Bill cannot proceeds to the next stage, but it is could
be modified and presented again or the Bill is stops at this stage.

The third of the stages of the law making process in parliament is house committee.
During the house committee the Bill will be debate on the details. In this stage the Bill will be
debate in a less formal meeting. Beside that the committee may call the expert related to the
Bill. If not amendment in the first stage it is the first reading, in this stage it is house
committee or the third stage, the Bill may propose amendments. After that the minister will
be submits a report on the Bill to the house.

for the fourth stage is the third reading. In the third reading stage, the minister must be
report that the Bill has been accepted with or without amendments. The minister proposes
that the Bill be read a third and vote on. The amendments need to be put to a vote decision
will be determined by a majority vote. After the Bill pass in this stage, it will be Proceed to
the next stage.

The next stages for the law making process in parliament is other houses. In this
stage, the Bill will be goes through to the same process. During this other houses process,
when a Bill has been passed by one House, it is must be sent to the other house. Where it
follows a similar pattern. If the second Of house is amends the Bill, the Bill must be returned
to the first house for its approval. After the Bill get the approval in the other house stage, or
pass in this stage, the Bill will be proceed to the last stage for the law making process.
 QUESTION 4

DISCUSS THE ESTABLISHMENT, COMPOSITION AND JURISDICTION OF THE

SUPERIOR COURTS.

The judiciary also known as the judicial system or judicature is the system of courts
which interprets and applies the law in the name of the sovereign or state. The judiciary also
provides a mechanism for the resolution of disputes. Under the doctrine of the separation of
powers, the judiciary generally does not make law that is, in a plenary fashion, which is the
responsibility of the legislature or enforce law which is the responsibility of the executive but
rather interprets law and applies it to the facts of each case. Malaysia has a unified judicial
system and all courts take cognizance of both federal and state laws. Religious courts decide
questions of Islamic law and custom. Malaysia practices two types of judicial systems which
is The Civil Courts who deals with civil or common law and The Syariah Courts who deals
with matters pertaining to the religious laws of the Muslims and its jurisdiction is solely over
Muslims. There are three Superior Courts in Malaysia which is The High Court, Court of
Appeal and The Federal Court.

In Federal Court, the establishment is based on the Article 122 of the Federal
Constitution. In Federal Court, there shall consist of president of the Court also known as the
Chief Justice of the Federal Court. The court need to consist of the President of the Court of
the Appeal, the Chief Judge of High Court Malaya, the Chief Judge of High Court Sabah and
Sarawak and 7 Federal Court Judges. According to the Federal Constitution Article 122 (1A),
the Yang di-PertuanAgong who acts on the advice of the Chief Justice of the Federal Court
may appoint and specify any person who has held high judicial office in Malaysia to be an
additional judge for such purposes or for such period of time. The proceeding in Federal
Court shall be heard and disposed by three judges or such greater number of judges as the
Chief Justice may require. There are 4 types of jurisdiction in the Federal Court that is
original jurisdiction, appellate jurisdiction, reference jurisdiction and advisory jurisdiction.
As stated in the Federal Constitution Article 128 (1), the Federal Court may hear any question
whether a law made by Parliament or by the Legislature of a State is invalid on the ground
that it makes provision with respect to a matter with respect to which the parliament or, as the
case may be, the legislature of the State has no power to make laws and the court may also
hear disputes on any other question between states or between the Federation and any states
or between the Federation and any State. It has jurisdiction in the same matters exercised by
the High Court.

The second Superior Court is the Court of Appeal. According to Article 122A stated
in the Federal Constitution, the Court of Appeal shall consist of a chairman also known as the
President of the Court of Appeal and, until the Yang di-PertuanAgong by order otherwise
provides, of thirty-two other judges. Generally, the Court of Appeal hears all civil appeals
against decisions of the High Courts except where against judgments or orders made by
consent. The court may also consider appeals decided by the High Court relating to matters
decided by the Magistrates court but it will be confined only to question of law. The appeal
must be within 14 days after judgment were given. In Civil Appeal Cases, it has the
jurisdiction to hear and determine civil appeals for cases where the amount or value of the
subject matter of the claim is more than RM 250,000. If the amount is less than RM 250,000
the parties must get permission form the Court of Appeal. Meanwhile in the Criminal Appeal
Cases, it has the jurisdiction to hear and determine any appeal against the decision of the
High Court.

Lastly is the High Court. The High Court is established under the Article 121(1) of the
Federal Constitution. There shall be two High Courts of co-ordinate jurisdiction and status
namely one in the States of Malaya also known as the High Court in Malays and shall have
its principal registry at such place in the States of Malaya as the Yang di-PertuanAgong may
determine and there will be one in the States of Sabah and Sarawak which is known as the
High Court in Sabah and Sarawak and shall have its principal registry at such place in the
States of Sabah and Sarawak as the Yang di-PertuanAgong may determine. According to
Article 122AA of the Federal Constitution, each of the High Courts shall consist of a Chief
Judge and not less than four other judges but the number of other judges shall not, until the
Yang di-PertuanAgong by order otherwise provides, exceed by sixty in the High Court in
Malaysia and thirteen in the High Court in Sabah and Sarawak. A person qualified for
appointment as a judge of the High Court must be a citizen and 10 years preceding his
appointment he has been an advocate of the courts or a member of the judicial and legal
service of the Federation or legal service of State or both. In the original jurisdiction, it has
both criminal and civil powers. For civil jurisdiction it generally hear actions where the claim
exceeds RM1 million, other than actions involving motor vehicle accidents, landlord and
tenant disputes and distress. In appellate jurisdiction, the High Court hears criminal and civil
appeals from the Magistrate and Sessions Court. Meanwhile in the revisionary and
supervisory jurisdiction, the High Court has the power to revise criminal proceedings in the
subordinate court, to call or examine record of proceeding of any civil matters before any
subordinate court.

The last stage for the law making process is royal assent. After passed both of the
Houses or passed in all previous stages, the Bill is will be sent to the Yang di-Pertuan Agong
according to the article 68 in the Federal Constitution, it is to get the assent from the Yang di-
Pertuan Agong. During this stage also, the Yang di-Peruan Agong has approve the Bill within
30 days. After the Yang di-Pertuan Agong approve the Bill, the Bill becomes a law upon
publication in the government gazette. If not the Bill cannot becomes the law, it is because
every Bill wants to becomes the law must get the assent and approval from the Yang di-
Pertuan Agong first.

This is the stages for the law making process in the parliament. The Bill must passed
in the all stages to becomes the law. After the Bill becomes the law it is cannot be questioned
because it is the highest and everyone is equal under the law. All law are rule and regulation
but not all rule and regulation are law. So the people must follow the law and the government
must practice the law in people social life after the Bill becomes the law.
PART B (QUESTION I)
The issue of the case is tort of negligence. It is whether Zahra can take legal action
under the tort of negligence against Dr Akmal.
The tort of negligence is the most significant and central tort, arguably the tort which
define the law of tort. The word “negligence” may give two meanings. Firstly, it may mean
careless conduct, for instant “I saw something on your table that attracts my attention, and I
rush forward unthinkingly and in the course of doing so knock the table over and scatter your
belonging” or secondly negligence as a tort, which comprises certain elements that to be
proved before liability may be established and damages imposed on the tort facer. The tort of
negligence requires prove of specific elements before the tort is established, despite
carelessness on the part of the defendant and injury or damage sustained by the plaintiff.
In Blyth’s case negligence is doing something which a reasonable man would not do
or omission to do something which reasonable man would do.
In Mac Mullan’s case of negligence, when three elements are fulfilled there is a duty
of care on the part of defendant. The duty of care is breached by the defendant. The breach
result in some damaged.
The first element of negligence is duty of care. Duty of care arises from some
“relation” or some “proximity” between parties for example manufacturer and customer.
Duty of care exist is normal situation whereby if the person does not use the usually degree of
precaution/another person of his property maybe injured or damaged. Primary test used in
determining the existents of duty of care is “neighbor principle” laid down in.
In Donoghue’s case, the defendant, Mr Stevenson, a ginger beer manufacturer, has
sold beer to a retailer. The plaintiff suffer shock and worse severely ill after drank the ginger
beer because the drink contained decomposed snail. As a manufacturer the duty of care of Mr
Stevenson was to prevent snail from entering the bottle. The second one is to ensure all the
empty bottle was carefully inspected before fill with ginger beer. This case was analyst by the
judge using the “neighborhoods principle”. In this principle, the rule is that, you love your
neighbor. The third is you take reasonable care to avoid act/omission likely to injure your
neighbor. So it was held that defendant was liable for the tort of negligence.
The second is breach of duty of care. One’s established that the defendant owes the
plaintiff the duty of care, next step to consider whether the defendant has breach the duty. For
example, restaurant owner is not to serve unhealthy food for the customer. Test used in
determining whether there is a breach of duty in “reasonable man test” whether reasonable
man would have acted as the defendant has done if the reasonable man faces with the same
situation. There are three different standard of duty. First is professional defendant for
example doctor and lawyer. The second one is child defendant and the third is driver vehicle.
In the case of Thomas against Grand Hyat Hotel, which the fact is the plaintiff was
working out of the stage. She slipped and fell, injuring her left foot and ankle. During the
incident, the plaintiff was modeling clothes for Woodward and Lothrop which has leased of
space from the defendant for a fashion show. For the held of the case, the plaintiff did not
know what cause her to slipped and the defendant was unaware of a dangerous condition that
cause her to slipped. The defendant was not in breach of duty.
The third element is damaged. The plaintiff needs to prove that the damage was
caused by defendant’s breach of duty. The remoteness of damaged la defendant will only
liable if it is reasonable foreseeable that his conduct will result in some damage to the
plaintiff.
Refer to the situation above; Zahra suffers diabetes mellitus and when to see Dr
Akmal a dietician to ask for advice to control the eating habit. The advice that given by Dr
Akmal has caused Zahra suffer kidney problem. In order to establish and action for
negligence Zahra must established three elements of negligence which is the duty of care. Dr
Akmal has a close relation or proximity as a doctor to Zahra. The second one is the breach of
duty. Dr Akmal new that there is a risk on patient’s kidney if she taken the “LooseMore” diet
solution for a prolonged period but he did not informed Zahra about the side effect. As a
result, Zahra suffered the kidney problem. The third element is damaged. Due to the breach
of duty of Dr Akmal, Zahra was admitted to the hospital due to the kidney problem. This had
endangered the health of Zahra and if there is no treatment taken she might lose her life as
consequences. Zahra only knows the side effect of the diet solution when the doctor in-charge
told her.
As a conclusion, Zahra has a right to sue Dr Akmal under the tort of negligence
because she can established the elements of negligence.
QUESTION 3
TWO (2) of the following:
a) Assault (50 marks)
b) Battery (50 marks)

Answer:
a) In definition, tort came from the Latin word, tortus which means “twisted” or
“wrung”. A tort may consist of either a wrongful act or omission, which is not authorized by
the law. In either hand, even though a “tort” is a “wrong”, this does mean that all “wrongs”
come within the purview of the law of tort. Law of tort consists of four types that are trespass
to person, negligence, defamation and nuisance.
Trespass is a direct invasion of a protected interest. The tort of trespass is proven
without the plaintiff having to prove that he has suffered any injury or loss. For example, in
Letang v Cooper cases, it was held that in the tort of trespass there must exist intention at the
time the defendant does his act. If the defendant was careless in acting as he did, the cause of
action would lie in negligence and not in trespass. Therefore, an important element in
establishing trespass is that the defendant must be proven to have acted immediately.
There are 3 types of trespass to a person that are assault, false imprisonment and
battery. In definition, assault defined as an intentional and direct act of the defendant which
causes the plaintiff reasonable. There are there elements of assault. The first one is intention
of the defendant to do harm onto the plaintiff. This is meant that the defendant must have an
intention to do his act. In Tuberville v Savage cases, the defendant lay his hand upon his
sword and told the plaintiff “if it were not assize-time, I would not take those words from
you”. The court held that these word negative the element of intention on the defendant’s part
to injured the plaintiff and therefore assault was not established. The second element is the
effect on the Plaintiff’s mind. The plaintiff must feel reasonable apprehension that a force
will be inflicted upon him. This will be measured through an objective test such as would a
reasonable man faced with the same situation that the plaintiff was in, feel apprehensive that
a force would be committed upon him. Based on R v George cases, it was held that pointing
an unloaded gun at a person constituted as assault. The third element of assault is capability
of the defendant to carry out the threat which the requirement is measured through the eyes of
the reasonable plaintiff. Same as the second element, the third element also need to be proved
by objective test. In Stephen v Myers, the defendant threatened to hit the plaintiff and he
advanced with clenched fist upon the plaintiff. He was stopped by a third party just before he
could reach the plaintiff. The court held that assault was established as there was capability to
carry out his threat, if he was not stopped by the third party a mere few seconds before he hit
the plaintiff. The last element is bodily movement of the defendant. It is means a positive act
in the circumstances, indicating that the defendant will carry out his threat. In order to
complete the tort of assault the last element must be established such as in Read v Coker, the
plaintiff was in a financial difficulty and in arrears of his rent. The defendant purchases his
equipment and paid the rent under an agreement which secured to the plaintiff a weekly
allowance. One day, the defendant told the plaintiff to leave the premises but he refused. The
defendant collected some of his workmen who clustered around the plaintiff, tucking off their
sleeves and threatened to break his neck if he did not leave. The plaintiff left and brought an
action of trespass for assault. The held of the case, the facts clearly showed the defendant was
guilty of assault. There was a threat of violence exhibiting and intention to assault and there
was present an ability to carry the threat into execution.

b) In the other hand, battery can be defined as intentional and direct application of force
to another person without the person consent. Battery is committed by intentionally bringing
about a harmful or offensive contact with the person of another. Purpose of the action is to
afford protection to the individual not only against bodily harm but also against any
interference with his person which is offensive to a reasonable sense of honor and dignity.
There are four element of battery. The first element of battery is intention of the defendant to
apply force. Touching a person without consent has traditionally been regarded as sufficient
battery even though without actual physical harm. In Cole v Turner cases, the least touching
of a person in anger is battery. Secondly, the Act was under the Defendant’s control. It must
be done voluntarily. Based on Gibbons v pepper cases, the defendant was riding a horse
when someone hit the horse from behind, causing the horse to bolt. The horse collided with
the plaintiff, and in an action against the defendant, the court found the defendant not liable
as the incident of the horse bolting and colliding with the plaintiff was outside his control.
The third element is contact or application of force occurs. In battery, there must be
intentional touching or hostile contact. In Collins cases, a woman police officer suspecting
that a woman was soliciting contrary to the Street Offences Act 1959, the police officer tried
to question her but the woman walked away. The police officer took her arm in order to
restrain her. The woman scratched the officer’s arm. The woman was arrested and charged
with assaulting an officer in the execution of her duty and was convicted. The last element fr
battery is without plaintiff consent. One cannot touch another person without his consent or
without lawful justification. In Tiong Pik Hiong v Wong Siew Gieu, the defendant was found
liable in battery for scratching the plaintiff’s face and hitting the latter, due to her jealousy of
the plaintiff’s friendship with her husband.