Friday, 12 September 2014

Malaysia-Discharge of a bankrupt

In the Court of Appeal case of Public Bank Bhd v Choong Yew Wah [2014] 4 MLJ 559, it was held that:-

"...[13] In an application of this nature, the DGI's report plays an important part in that the court relies heavily on it to exercise its discretion. That said the court is also duty bound to examine the DGI's report and determine whether the recommendation made is one made based on a thorough investigation of the affairs of the bankrupt and the interests of the creditors. In short, the court's role cannot be a rubber stamp of the DGI's recommendation. If the court finds that DGI's report to be lacking in details or reasonable justifications, the court is duty bound to ignore it and cannot allow the bankrupt to take advantage of such deficiencies. Further the Bankruptcy Act 1967 through ss 17 and 34, clearly empowers the DGI to carry out thorough investigation of the estate of the bankrupt and any failure to carry out such a statutory task would result in a dereliction of his statutory duty.
[14] In this case, there were two reports made by the DGI dated 18 June 2012 and 21 June 2012 and it is apparent to us that there was no reference to the respondent's failure to comply with s 16(2)(b), hence there is no explanation as why such non-compliance was ignored by the DGI. In view of this omission, the respondent in fact relies on it to submit that there has not been any breach of sec 16(2)(b) as the DGI had failed to mention such offence. As stated in the above cited cases, the court under s 33(4) is required by law to suspend any discharge. We cannot ignore this omission for the simple reason that the DGI's report by this omission is incomplete. On this ground alone, we are of the view that this appeal ought to be allowed...."

Malaysia-Defective notice of appeal to the court of appeal

In the Court of Appeal case of Berjaya Development Sdn Bhd v Keretapi Tanah Melayu Bhd [2014] 4 MLJ 606, it was held that:-

"...[15] Referring to Form 1 in the First Schedule of the Rules of the Court of Appeal 1994, we notice that the appellant is required to state the decision appeals against, the place where the decision was given and the date it was given in the notice of appeal. When we scrutinised the notice of appeal by the appellant (at p 11 appeal record), the notice read as follows:

SILA AMBIL PERHATIAN bahawa Responden yang dinamakan di atas tidak berpuas hati dengan keputusan yang diberikan oleh Yang Arif Hakim Nalini Pathmanathan di Mahkamah Tinggi Kuala Lumpur pada 18 September 2012 dan 10 Oktober 2012 menolak semua permohonan Responden bertarikh 5.9.2012, 14.9.2012 dan 18.9.2012 tanpa hujahan oleh kedua pihak, merayu kepada Mahkamah Rayuan terhadap keseluruhan keputusan tersebut.
Bertarikh pada 16 hari bulan Oktober 2012.
bp Perayu/Responden

[16] It is obvious from the notice of appeal filed by the appellant in this case that the appellant did not state clearly which decision and decided on what date that he is appealing against. The notice of appeal simply says that the appellant is appealing against the decision of YA Nalini Pathmanathan J at Kuala Lumpur High Court on 18 September 2012 and 10 October 2012 which dismissed all the appellant's application dated 5 September 2012, 14 September 2012 and 18 September 2012. The notice of appeal does not state which of the three decisions was decided on 18 September 2012 and which was decided on 10 October 2012. Therefore, in our view, the notice of appeal is defective for its ambiguity.
[17] With regard to the counsel's argument that it is possible for one notice of appeal to be filed for all the three decisions, we are of the view that, that may be so provided the applications were heard together and the decision was given on one single date, and that the notice of appeal clearly describes the applications involved and the respective decisions.
[18] We have pointed out earlier that in this case, there were three decisions by the YA Nalini Pathmanathan J at Kuala Lumpur High Court that there are on appeal by the appellant in this appeal. One of the decisions was decided on 18 September 2012. The other two decisions were decided on 10 October 2012. Reading the notice of appeal filed by the appellant, we are in the dark which decision and related to what matter was decided on 18 September 2012. Similarly, we also do not know which decision and related to what matter was decided on 10 October 2012. In the circumstances, we are of the view that the filing of one notice of appeal in respect of all the three decisions by the same High Court in this case, is improper for being ambiguous and uncertain. We are of the view that the proper way is to file either three notices of appeal, one in respect of each decision that is appealed against...."

Malaysia-An arbitration award is an agreement

In the Court of Appeal case of Deb Brata Das Gupta v Christopher Martin Boyd [2014] 4 MLJ 590, it was held that:-

"...[10] As to how the arbitral award should be treated in law is the determinative factor in this appeal. We agree with the submission of learned counsel for the appellant that an arbitration award is an agreement and the order to enforce the award is merely a procedure to enable enforcement.
[11] Learned counsel for the appellant relied on the case of National Ability SA v Tinna Oils and Chemicals Ltd; The Amazon Reefer [2010] 2 All ER 899 where the court held as follows:

There was a clear distinction between an arbitral award and a judgment. An arbitration agreement was in essence enforceable because of the implied contractual promise to pay an arbitral award contained in the arbitration agreement; all measures of enforcement essentially rested upon the contract. The provisions of s 26 of the 1950 Act had to be seen in that context. They were simply procedural provisions enabling the award made in consensual arbitral proceedings to be enforced. That was quite different from the pronouncement of a judgment by a court where the state through its court had adjudged money to be due.

[12] We see no reason to depart from the just quoted passage and have no hesitation in adopting it. Any arbitral award emanates from the parties' mutual agreement to refer disputes to arbitration and the obligation to satisfy the arbitral award must also be contractual in nature and that rights can only crystalise when the arbitral award is handed down. The registration of the arbitral award cannot give more than what the parties had agreed in their contractual relationship. That registration cannot recrystallise and give another few years of life to the parties' contractual rights. Hence the registration or the transformation of the arbitral award into a judgment is nothing but a mere procedure to enforce an award.
[13] Reverting to the appeal at hand, the crucial date for calculation of the limitation period must then be 4 January 2000 and hence since the bankruptcy proceedings started in 4 April 2012 which is well after the six years limitation period as provided in s 6 of the Limitation Act 1953, we are constrained to hold that the respondent's bankruptcy proceedings is invalid and prohibited by the Limitation Act...."

Malaysia-Who can apply for the removal of a lien holder's caveat?

In ('Consolidated Credit') Co Sdn Bhd v Gladys Loh & Ors (as the executrix of the estate of Loh Hoot Yeang, deceased) and another suit [2014] 10 MLJ 329, it was held that:-

"...40 In any event, my primary view is that there is nothing in the language of s 331(4) of the NLC which supports the submission made by counsel for ('Consolidated Credit') that only a registered proprietor may apply for cancellation of a lien holder`s caveat which had been wrongly or improperly entered.
41 In fact, it appears to me that s 331(4)(b) of the NLC tacitly recognises that persons other than the registered proprietor may apply for cancellation of the lien holder`s caveat as it contemplates the grant of a remedy by way of compensation for 'any person or body' who may have suffered loss and damage by the entry of the lien holder`s caveat and the court may order such compensation as may be necessary in the circumstances. Section 331(4)(b) reads as follows:

4) Where the Court is satisfied that any lien-holder`s caveat ought not to have been entered, or ought to have been withdrawn, it may order

  • (a)
    the cancellation thereof by the Registrar; and  
  • (b)
    if the by the person or body at whose instance the entry was made or, as the case may be, by whom the withdrawal ought to have been effected (Emphasis added.)   ...44 In the result, I was not convinced that there was any merit in the argument that only a registered proprietor is entitled to apply to court to have the lien holder`s caveat cancelled. As such, I had no hesitation in dismissing the objection raised and ruled that, for the reasons as above stated, Derrick had the requisite locus standi to make the application to have the lien holder`s caveat cancelled. ..."

Malaysia-Grounds to oppose a foreclosure action

In the Court of Appeal case of Tengku Azman bin Tengku Adnan & Anor v Hong Leong Bank Berhad [2013] MLJU 1537, it was held that:-

"... No cause to the contrary was shown and the Court was obliged to make an order for sale.
[16] The Court notes that the Appellants had failed to adduce any evidence at all to support their allegation that the Respondent had breached the Banking Facility Agreement of 12/7/04.
[17] In light of the above it cannot be gainsaid that the Appellants had failed to discharge their burden to show any "cause to the contrary" to warrant the Court to dismiss the Respondent's Originating Summons for an order of sale pursuant to Section 256(3) of the National Land Code 1965.
[18] In the Federal Court case of Low Lee Lian v Ban Hin Lee Bank Bhd [1997] 2 CLJ 36, it was held that it was not sufficient for the chargor to allege mere breaches by the chargee of the loan agreement or even the terms of the annexure to the charge in order to resist an application under Section 256(3) of the National Land Code.
[19] It was further held that in a foreclosure action, challenges on the calculation of interest under the loan agreement are actually not relevant. On a proper reading of Section 256(3), the Court ought not to enter upon a discussion of the question of whether any or all of these complaints have or are devoid of any merit. The Court should only be concerned with the restrictive categories of "cause to the contrary" as laid down in Low Lee Lian as follows:-

"The three categories referred to are:
(a) A chargor who is able to bring his case within any of the exceptions to the indefeasibility doctrine housed in section 340 of the Code;
(b) A chargor who is able to demonstrate that the chargee has failed to meet the conditions precedent for the making of an application for an order for sale, for example failure of service of Form 16D or failure to prove the making of a proper and valid demand; and
(c) A chargor who is able to demonstrate to the court that the grant of an order for sale would be contrary to some rule of law or equity."

[20] In Low Lee Lian it was also held that as the charge action is an action in rem that is, against the Property per se and not an action in personam, the chargor cannot raise the defence that the chargee's claim is excessive and in breach of the terms of the charge especially on the interest rate payable. Any such claims should be made the subject matter of a separate civil claim by the chargor against the chargee to settle issues relating to the debt. In a statutory sale on a charge action, the chargee is not attempting to sue the borrower to recover the debt but merely exercising his statutory remedy against the chargor..."

Malaysia-Recusal of a judge

In Residence Hotel and Resorts Sdn Bhd v Seri Pacific Corp Sdn Bhd [2014] 10 MLJ 413, it was held that:-

"...[19] The grounds of the application by the defendant to recuse the Bench did not alleged bias of any uncivil behaviour of the Bench because of anger, intemperance, impatience or rudeness of the Bench but it is based on the findings of this court as contained in the grounds of judgment in respect of the summary judgment given in favour of the plaintiff. The Bench did not say or express any opinion on the success of the defendant's counterclaim in the event the defendant decide to proceed against the plaintiff or that the defendant will prima facie not succeed. While the defendant's counterclaim can proceed for trial and subject to the outcome of the plaintiff's application under O 14A and or O 33 r 2 of the Rules of Court 2012, it cannot be denied that it has nexus and is intertwined to the defence which was also raised to oppose the plaintiff's application to enter the summary judgment. Indeed learned counsel for the defendant has conceded that the counterclaim is intertwined with the subject matter of the plaintiff's claim. Nevertheless, this court had rejected the defence as having raised no triable issue or issues on the factual matrix of the case. This court found that there was no bona fide defence or anyarguable defence and entered summary judgment in respect of the plaintiff's claim on 14 September 2012. It is important to state that this court had merely inquired whether the defendant would reconsider its position in respect of the counterclaim. However, if the defendant wishes to proceed with the counterclaim as pleaded, it is the defendant's right, in which case, it is a duty of this court to hear the parties on the materials produced in support of the counterclaim and of course to decide on the evidence to be proceeded and the submissions and subject to any other application.
[20] Therefore, the observation of this court as contained in the grounds of judgment and as referred to by the learned counsel for the defendant did not necessarily mean that this court had made a finding on the merits of the defendant's counterclaim. Similarly, and in cases, where any observation or ruling is required to be made by the court during the course of a trial or hearing of an interlocutory application, it cannot be taken as if the Bench had made up its judicial mind on the matter that is pending before the court. Accordingly, if the defendant's recusal application is entertained, it would be a matter of speculation of any alleged bias on the part of the Bench without any substantial basis or foundation. Further, it would place unnecessary or unwarranted restrain upon the court from requesting the parties whether through their counsels they may wish to reconsider their position taken previously when the claim or defence was filed with the view to consider an amicable settlement in view of the decision of the court in a related matter in order to save judicial time. Every latitude must be given to the court to make such findings as found in the grounds of judgment and is not beyond the permitted judicial latitude and there were materials to make that finding, be it ratio decidendi or obiter dicta. Reasoned decision is one of the essentials of justice and is vital for the purpose or showing to a litigant that he is receiving justice. 'Law governs man, reason the law'.

In Allied Capital Sdn Bhd v Mohd Latiff bin Shah Mohd and another application [2001] 2 MLJ 305 at p 309, the Federal Court in refusing the application for leave to appeal against the whole of the decision of the Court of Appeal pursuant to s 96 of the Courts of Judicature Act 1964 said at p 309:

  • We are satisfied that the judgment of the Court of Appeal has not raised any question of general principle which the Federal Court has not previously decided or any question of importance upon which further argument and a decision of the Federal Court would be to public advantage. The concurrent decisions of the High Court and the Court of Appeal on the said issues are in fact mere applications of well-established principles of law to the particular facts of the case. In such a situation, it would be highly unlikely that an appellate court would disturb such concurrent decisions. We are, therefore, equally satisfied that, even if leave is given, the applicants would prima facie not succeed in the appeal. (Emphasis added.) 

[21] In the present case, and with respect, I did not comment or say anything to the effect that if the defendant proceeds with the counterclaim, he would prima facie not succeed in his claim. There was also no issue which had surfaced in respect of the observation made by the Federal Court in Allied Capital Sdn Bhd v Mohd Latiff bin Shah Mohd and another application to the effect that 'even if leave is given the application would prima facie not succeed in the appeal', (see also Ta Wu Realty Sdn Bhd v Ketua Pengarah Hasil Dalam Negeri & Anor [2009] 1 MLJ 555; [2008] 6 CLJ 235 at p 249 (E-F)).
[22] In so far as the two matters that are pending before this court, there is no basis to suggest that this court will not keep an open mind to persuasion by learned counsel for the defendant if the facts and the law favours his client's counterclaim. Further and in the event, the decision of this court on the two matters is not in the defendant's favour, the defendant is at liberty or has the right to file an appeal to the Court of Appeal against the decision. Therefore, this court is unable to appreciate the fear of bias on the part of the Bench as the decision of this court is not final and it is open to the defendant to have the decision tested at the Court of Appeal or with leave even right up to the Federal Court:

Bias is commonly described as leaning, inclination, bent or predisposition towards one side or another or a particular result. It represents a predisposition to decide an issue or course in a certain way in its application to legal proceeding which does not leave the judicial mind perfectiy open to conviction. Bias is a condition or state of mind which sways judgment and renders a judicial officer unable to exercise his or her functions impartially in a particular case. Bias generally refers to the mental attitude or disposition of the judge towards a party-litigant, rather than any views that he or she may entertain regarding the actual subject matter of the dispute (R v Bertham [1989] OJ No 2123 (QL), R v S (RD) 1997 3 SCR 484 at para 106).

[23] The test favourable for 'apparent bias' (the 'real danger of bias' test) has been set out by the Federal Court in Majlis Perbandaran Pulau Pinang v Syarikat Bekerjasama-sama Serbaguna Sungai Gelugor dengan Tanggungan [1999] 3 MLJ 1 at p 70 and followed in Allied Capital Sdn Bhd v Mohd Latif bin Shah Mohd and another application [2001] 2 MLJ 305 at p 310, Mohamed Ezam bin Mohd Nor & Ors v Ketua Polis Negara [2002] 1 MLJ 321 at p 325, Dato' Tan Heng Chiu v Tan Kim Ho [2009] 5 MLJ 790 at p 301 (see also R v Gough [1993] AC 645 at pp 668-670). However, each case in which it is alleged that there arises a reasonable apprehension of bias will turn upon its own facts and be of little, if any, as precedent. In every case, it shall be a question of fact whether the words and/or conduct impugned would induce, in the mind of a reasonable observer with equivalent knowledge, 'a reasonable apprehension of real bias':

In R v Gough [1993] AC 646 at p 670 [1993] All ER 724Lord Goff of Chieveley made four points concerning that test namely:

  • (a)
    it applies to all cases of apparent bias; 
  • (b)
    it calls for an ascertainment of the relevant circumstances of the case; 
  • (c)
    the 'court' there personifies the reasonable man; and 
  • (d)
    the expression 'real danger' is preferred to 'real likelihood' to ensure that the court is thinking in terms of possibility rather than probability of bias. 

[24] Viewing the complaint of the defendant which is based on the findings of this court as contained in the grounds of judgment in respect of the summary judgment, be it individually or cumulatively, this court is unable to find any reasonable apprehension of bias. There is no basis or foundation which could make the two pending matters, ie the plaintiff's application under O 14A and or O 33 r 2 of the Rules of Court 2012 and the amended counterclaim unfair or neither does it raise a 'reasonable apprehension of bias'. A judge swears on oath that he or she will be impartial, and there is a strong presumption that judges honour the oath and do dispense justice without bias (R v RDS [1997] 3 SCR 484 at para 117, R v Smith & Whiteway Fisheries Ltd (NSCA) (1994) 133 NSR (2d) 50 (CA)). An allegation of bias or reasonable apprehension of bias is a serious allegation that calls into question the personal integrity of the judge and the integrity of the entire institution of justice. The grounds of apprehension of bias must be substantial, but however, each case must be evaluated in its own particular circumstances and in light of the whole proceedings. The party alleging bias has the onus of proving it (Marchand (Litigation guardian of) v Public General Hospital Society of Chatham (2001) 51 OR 97 (CA) at para 131, (leave to appeal SCC refused, (2001) SCCA No 66)).
[25] Further, this court finds that the grounds raised on the defendant's behalf in support of its application is not sufficient to recuse the Bench. It will be a bad precedent to grant the defendant's application purely on the ground as raised in the application which is a mere speculation. It will also open the floodgates for a litigant or his lawyer to apply to recuse a judge when the decision of the court given in a interlocutory or related matter is not in his favour or and when the loosing party had failed to file an appeal to Court of Appeal against the decision of the court within the time frame provided under the Rules of Court. Admittedly, this application by the defendant to have the case heard by another judge is not because of any actual bias but it would appear to be because of the findings of the Bench in the interlocutory matter, ie the summary judgment which was not in his favour and seemingly the defendant is not prepared to accept the defeat and the decision of the court:

The Advocate, it must be remembered, is not the mouthpiece of his client. His office is a higher one. To consider him in that light would be to degrade him. He gives to his client the benefit of his learning, his knowledge and his talents, but all through he must not forget what he owes to himself and to the court. He must not knowingly misstate the law, he must not willfully misstate the facts, though it be to gain the cause of his client He must bear in mind that if he is the advocate of an individual, retained and remunerated for his valuable services, he has a prior and perpetual retainer on behalf of truth and justice and there is no power which in any case or for any party or purpose can discharge him from that primary and paramount retainer. He must remember that the court is a temple of justice and the advocate at the bar as well, as the Judge upon the bench are equally ministers in that temple. The object of both should be the attainment of justice. Now justice is to be reached only through the ascertainment of truth and it must not be forgotten that the advocate as well as the Judge are both together concerned in this search for truth. The pursuit is indeed a noble one and honoured are those who are the instruments engaged in it. The advocate must realise that his task is a high and noble one -- to assist the Judge in finding out the truth -- and unless he performs this task in no half and uncertain measure with full consciousness of the sacred responsibility which rests upon him, -- the wonderful edifice of justice which exists today cannot be sustained. The advocate must never forget that the advancement of justice and the ascertainment of truth are higher objects and nobler results than any which he can achieve in the field of his profession, (per PN Bhagwati J (later Chief Justice of India) in Chandubhai Jethabhai Desai vs The State And Anr. AIR 1962 Guj 290.

[26] As correctly submitted on the plaintiff's behalf, the decision of this court was based on the evaluation of the affidavit evidence which was supported by contemporaneous documents and case law and not on assumption or speculation or personal sentiment of the Bench and there is no suggestion that the decision of this court in the summary judgment 'lacked the appearance of independent and impartiality'. The findings of the court for the summary judgment is a proper discharge of a judicial function. The defendant's complaint is so out of line and not been placed in context. The public confidence in our legal system is rooted in the fundamental belief that those who adjudicate in law must always do so without bias or prejudice and must be perceived to do so. Judicial impartiality requires that a judge approach the case with an open mind in the sense that he or she is open to persuasion. Bias is the predisposition to decide in a particular way that closes the judicial mind to being persuaded (Wewaykum Indian Band v Canada [2003] 2 SCR 259 at para 59, R v Steele (1895) 26 OR 540, R v Bertram [1989] OJ 2123 (HC), R v RDS [1997] 3 SCR 484 at para 106).
[27] While justice must be rooted in confidence; and confidence is destroyed and the right minded people may go away thinking 'the judge was bias', (Lord Denning in Metropolitan Properties Co Ltd v Lannon (FGC) [1968] 3 All ER 340 at p 309), it does not mean it is a blanket judicial disqualification to all applications for recusal as so to enable every litigant who would desire to have the judge who is assigned to hear his case be recused either for an ulterior object or extraneous or collateral purposes or to suit his desire merely because the particular judge's decision previously in an interlocutory or related matter did not favour him or whenever the litigant 'anticipate or suffer an unfavourable outcome'. If the application for recusal is allowed too freely, it would encourage tactical applications by litigants seeking another judge to hear their case and it ought not to be entertained. A judge's decision which did not favour a litigant cannot be used as an instrument to recuse the judge or to remove the case to another court as the opposing party's right is to file an appeal to the Court of Appeal to have the decision corrected if the loosing party is not satisfied with the decision. Under the circumstances, a party who is not satisfied with the decision should not as a matter of right apply to recuse the judge in hearing other pending or related matters by raising allegation of bias or 'reasonable apprehension of bias' which is a serious allegation as it will have far reaching effect on the decision of judges and calls into question the 'personal integrity' of the judge and the integrity of entire administration of justice, (Marchand (Litigation guardian of) v Public General Hospital Society of Chatham (2001) 51 OR 97 (CA) at para 131, (leave to appeal SCC refused, (2001) SCCA No 66), cause delay in the disposal of cases filed in court as the file has to be transferred to another judge who will have to reschedule the cases fixed in his or her court and it may cause a revolution
In Comsa Farms v Malaysian Assurance Alliance Bhd [2012] 10 MLJ 526; [2012] 3 CLJ 724, the defendant applied seeking the recusal of His Lordship Hamid Sultan Abu Backer J (Now JCA) not on the grounds of any forms of nexus directly or indirectly with the parties to the suit, but solely on the grounds that His Lordship had not allowed the 'Winding up petition' under the Companies Act against the plaintiff (which has nexus to the plaintiff for an indebted sum) and in that judgment, the judge had concluded that the petition was oppressive and vindictive, tantamount to an abuse of the process of the court, and the petition was filed in the view to paralyse the plaintiff (Malaysian Assurance Alliance Bhd v Comsa Farms [2010] 1 LNS 977). In dismissing the defendant's application, seeking His Lordship's recusal, Hamid Sultan Abu Backer J (Now JCA) said at p 737:

The central complaint of the defendant is in relation to words such as 'oppressive', 'abuse of process' etc, as set out above in the judgment relating to a winding up petition. The law does not require the judge to mince his words when it is required in law to be expressed so. Words such as 'scandalous', 'frivolous', 'vexatious', 'abuse of process of court' are all found in the rules of court and the judge is required to make such findings when dealing with an action or winding-up proceedings, more so in striking out matter and also at all stages of trial pursuant to inherent jurisdiction (see Charles Forte Investment Ltd v Amanda [1963] 1 Ch D 240); Chip Chong Sawmill Co Sdn Bhd & Ors v Chai Khium Fui [1978] 1 LNS 28). When an application is scandalous, frivolous, abuse of process of court etc, it will also have some generic similarity to words such as 'mischievous' or 'vindictive' etc, to express the gravity of the conduct of the litigant. Even in a case of trial if the witness is not telling the truth, the judges have expressed it in different words such as 'not a witness of truth', 'lied' 'perjured', 'economical with the truth' etc. In my view, if such words are not expressed as required by law etc. within the norms of judicial propriety it will fall short of what we often refer to as a speaking judgment.
Judicial propriety in essence is the unwritten code of ethical conduct practiced by judges to maintain the highest traditions of judicial rectitude, independence and impartiality. It is well-recognised that judgments should be objective, rational and temperate in language. They must be free from exaggeration and undignified expressions. That does not mean the judge is restrained from criticising in his judgment matters relevant to the conduct and merits of the case, and of persons who are witnesses, provided it is relevant to the case.
Generally, judge's finding made according to law in a particular suit cannot be a ground for a recusal application in other suits. I am in total agreement with submission of learned counsel for the plaintiff, Datuk Ambiga Sreenevasan, that to justify disqualification or recusal, the judge's bias usually must be personal or based on some extrajudicial reason. Support for the proposition is found in a number of cases. To name a few are as follows:

  • (I) In Locabail (UK) Ltd v Bayfield Properties Ltd and Another; Timmins v Gormley and Others [2000] QB 451, the English Court of Appeal had this to say:

    It would be dangerous and futile to attempt to define or list the factors which may or may not give rise to a real danger of bias. Everything will depend on the facts, which may include the nature of the issue to be decided. We cannot however, conceive of circumstances in which an objection could be soundly based on the religion, ethnic or national origin, gender, age, class, means of sexual orientation of the judge. Nor, at any rate ordinarily, could an objection be soundly based on the judge's social or educational or service or employment background or history nor that of any member of the judge's family, or previous political associations; or membership of social or sporting or charitable bodies; or Masonic associations; or previous judicial decisions; or extra-curricular utterances (whether in textbooks, lectures, speeches, articles, interviews, reports or responses to consultation papers); or previous receipt of instructions to act for or against any party, solicitors or advocates engaged in a case before him; or membership of the same Inn, circuit. Local law society or chambers (KFTCIC v Icori Estero Sp A (Court of Appeal of Paris, 28 June 1991, International Arbitration Report Vol 6 8/91).

  • (II) The Locabail test has to be qualified by what was said by Justice Augustine Paul in the case ofMohamad Ezam Mohd Nor & Ors v Inspector General of Police [2001] 3 CLJ 198; [2001] 2 MLJ 481. The learned judge had this to say:
  • Just as it is improper for a judge to hear a case when there may be a reasonable perception of bias if he hears the case, it is equally wrong for him to disqualify himself from hearing a case when there are no such grounds to do so. As a matter of fact, it would be a gross dereliction of duty for a judge to disqualify himself when there are no grounds. 

  • I must say here the 'real danger of bias' test imposes a high threshold for the applicant to satisfy. In a yet unreported case (see Michael Chow Keat Thye v Suruhanjaya Sekuriti Malaysia & Sime Darby Nominees Sdn Bhd, Suit No R1-25-288-11/2011, Kuala Lumpur High Court), Justice Abang Iskandar bin Abang Hashim in an illuminating judgment went on to stress the nexus requirement within the judge, the parties and the objectivity of the administration of justice itself inclusive of the duty and obligation of the judge pursuant to his constitutional oath. His Lordship sums up the test for recusal in an eloquent and practical manner, and that part reads as follows:
  • So in the final analysis, in the context of a potential conflict, it is not the question of whether or not a judge wants or insists, or that he does not want, to hear a case, because the practical test is rather simple, 'If there is no real danger of bias on the part of the judge, then he ought to, nay he is duty bound to hear the case, and there are no two ways about it.' I think that, in all humility, is the simple rule of the thumb for a judge to observe and apply. 

  • On my part I will say that: (i) it will be a gross dereliction of duty for a judge to disqualify himself when there is no real danger of bias in hearing the case; (ii) when an application for recusal is made with no appropriate grounds or prospect of success such an application must be treated as an attempt to interfere with the administration of justice; (iii) in such instance, where appropriate, once the suit has been disposed of the court should proceed to issue show cause letter against the relevant person or persons who attempted to place the administration of justice to disrepute; and (iv) failure of the judge or the judiciary to protect the administration of justice will, in my view, also stand as dereliction of duty and omission to act pursuant to art 126 of the Federal Constitution which states:
  • The Federal Court, the Court of Appeal or a High Court shall have power to punish any contempt of itself. 

  • I am in total agreement with the learned counsel for the plaintiff that the defendant has not made out a case for recusal.
    For reasons stated above, the defendant's application encl 33 is dismissed with no order as to costs. 

In Dato' Dr Joseph Eravelly v Dato Hilmi Mohd Nor & Ors [2011] 3 CLJ 294, relied on by learned counsel for the defendant, I had in that case agreed and allowed the defendant's recusal application from hearing and deciding all proceeding in that action, including the trial, as:

  • (a)
    there was a Practice Direction No 5 of 2010 issued by the then Chief Justice of Malaysia that a judge hearing a case or trial should not be the mediation judge unless agreed to; 
  • (b)
    in that case, I had acted as a mediation judge before the trial in the presence of the parties and the counsels but there was no agreement in writing which was signed by the parties that they had no objection for me to be the mediation judge since I was the trial judge; 
  • (c)
    there was an issue of credibility of the parties on the factual matrix of that case, and it was an issue to be decided by the trial judge; and 
  • (d)
    the subject matter of the plaintiff's claim had raised an issue of trust between the plaintiff and the defendant who were closed family friends and this was raised and discussed between the parties during the mediation. While those grounds, perhaps were not sufficient to find a real danger of bias on the part of the judge as I did not participate by making any preconceived opinion on hearing the versions exchanged between the parties, I had still agreed to recuse myself on the factual matrix in that case. However, I had made it clear in that case that I will not agree to recuse myself from hearing a case under any threat, fear or pressure imposed upon the Bench. 
[28] On the other hand and in so far as the defendant's application before this court, I do not experience any discomfort or prejudice or possibility of prejudice operating in my mind for any particular reason which may possibly relate to any 'real danger of bias'.
In Re JRL; Ex parte CJL (1986) 161 CLR 342 Mason J sitting in the High Court of Australia said at p 352:

Although it is important that justice must be seen to be done, it is equally important that judicial officers discharge their duty to sit and do not, by acceding too readily to suggestions of appearance of, encourage parties to believe that by seeking the disqualification of a judge, they will have their case tried by someone thought to be more likely to decide the case in their favour.

In Re Ebner; Ebner v Official Trustee in Bankruptcy (1999) 161 ALR 557, the Federal Court asked at p 568, para 37:

Why is it to be assumed that the confidence of fair-minded people in the administration of justice would be shaken by the existence of a direct pecuniary interest of no tangible value, but not by the waste of resources and the delays brought about by setting aside the judgment on the ground that the judge is disqualified for having such an interest.

In the Clenae Pty Ltd & Ors v Australia & New Zealand Banking Group Ltd case [1999] VSCA 35 Callaway JA observed, at para 89(e):

As a general rule, it is the duty of a judicial officer to hear and determine the cases allocated to him or her by his or her head of jurisdiction. Subject to certain limited exceptions, a judge or magistrate should not accede to an unfounded disqualification application.

In Locabail (UK) Ltd v Bayfield Properties Ltd & Anor [2000] 1 All ER 65 at p 76, [2000] QB 451, the Court of Appeal said:

It would be dangerous and futile to attempt to define or list the factors which may or may not give rise to a real danger of bias. Everything will depend on the facts, which may include the nature of the issue to be decided.
The mere fact that a judge, earlier in the same case or in a previous case, had commented adversely on a party or witness, or found the evidence of a party or witness to be unreliable, would not without more found a sustainable objection. In most cases, we think, the answer, one way or the other, will be obvious. But if in any case there is real ground for doubt, that doubt should be resolved in favour of recusal. We repeat: every application must be decided on the facts and circumstances of the individual case.

The Rt Honourable Lord Hailsham of ST Marylebone on The Independence of the Judiciary in a Democratic Society at the Riddle lecture 1978 at the New Hall, Lincoln's Inn, London on 24 May 1978 in his paper delivered and reported in [1978] 2 MLJ cxv said:

To begin with, in all contested litigation one party at least has got to lose. If a man wins his case it is natural that he should put down his success to the justice of his cause, and perhaps to his own transcendent performance as a witness. But, if he loses, the last person he will blame is himself. He will condemn first the incompetence or weakness of his own advisers and advocate, and the stupidity, or worse, of the judge, and finally the obliquity and cunning of the opposing advocate or solicitor, all of them members, it must be said, of the legal profession. So it is our fault if anything goes wrong. But, if all goes right it is nothing to our advantage.
Judges are there to settle disputes as and when they have arisen, to settle disputes in criminal and civil matters. They cannot settle them without bias unless their position is absolutely secure.
It is trite law that no one can be judge in his own cause, that is to say in a case in which he is directly or indirectly interested.
Judges do not select the cases which come before them for decision, and when they do come before him the judge cannot duck the issue. He can neither pigeonhole the dispute as others are sometimes thought to do, nor pass the poisoned chalice to another. In litigation, the buck stops at the judicial bench. The judge must dispose of the case on one way or another, and, in a politically sensitive case, either way he will give rise to controversy, and if he declines jurisdiction or withholds the relief asked for he will equally give rise to controversy.

The Rt Honourable Lord Elwyn-Jones in his paper delivered speech on the Independence of the Judiciary at the Fourth Commonwealth Magistrates' Conference 1975 reported in [1976] 1 MLJ (viii), said:

First, as to its significance for the judges themselves. I expect that many of us will have taken some form of oath or affirmation upon taking office as judge or magistrate. The oath which a judge in England and Wales swears before me is that he 'will do right to all manner of people after the laws and usages of this Realm without fear or favour, affection or ill-will'. But one Judge in a moment of nervousness swore that he would do right without fear or favour, affection or goodwill. The Lord Chancellor made him take the oath again correctly. I apprehend that in substance the judicial oaths, affirmations or undertakings in many other countries are similar to ours. These few words of the oath I have quoted incapsulate the whole duty of a judge. To be faithful to them is the test of his integrity as a judge. Implicit in this is that he must resist outside pressures and of course corruption. Independence is, in other words, a vital part of his judicial integrity.
But most crucial is the watchful presence of independent and fearless judges able and willing to do justice between citizen and State according to the law and vigilant to ensure that the State and its officers do not exceed their legal powers.
Judges, like other servants of the Crown, should take adequate account of public opinion; but they must not be ruled by it. This means that there is bound to be criticism from time to time of the decisions of the Judges. In a free society that is not only inevitable, but it is no bad thing either. There used to be inhibitions about criticising courts and judges, but it is now nearly 40 years since Lord Atkin in a famous speech, known to all judges, said:
No wrong is committed by any member of the public who exercises the ordinary right of criticising, in good faith, in private or public, the public act done in the seat of justice.
Many factors influence the standing and authority of Judges within our community. Authority generally is under widespread challenge and question. For us, die judges, the answer is clear: be just and fear not. (Emphasis added.)

[29] In taking this matter further, this court must say that even preconceived opinion by a judge do not constitute such a real bias so as to justify the recusal of the judge as the decision of the court in a pending matter will still be based and decided on the evidence and material produced or presented before the court and not on conjecture or speculation. There must be a strong foundation or ground for supposing that the judge or judicial officer had so acted in such unjudicial fashion that he cannot be expected fairly to discharge his judicial function and duty (R v Australian Steve Industry Board; ex p, Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100 at p 116). Preconceived opinion by a judge if it exist in any matter, though it is unfortunate that a judge should have any, do not constitute such a bias, not even the expression or such opinions, for it does not follow that the evidence and materials to be produced at any subsequent matters will be disregarded (R v LCC, Re Empire Theater (1894) 71 LT 638 at p 39). Each case will be decided on the factual matrix of the case and not at the whims and fancies of the Bench. In any event, the observation of this court in the summary judgment did not raise the appearance of prejudging the merits.
[30] If the nature of the complaint as raised by the defendant is permitted or freely accepted as a ground to recuse a judge, as in the case before this court, no court will ever be able to safely make any findings, observation or tangible criticism against a party's case in the matter before the court in his or her grounds of judgement for fear that the findings or observation may be used as a ground to recuse the judge from further hearing related matters in the case on the 'filmiest pretext of bias' and that no doubt will interfere with the judicial independence conferred on the judge. In the present case, with respect, the findings and observations of this court in the summary judgment were justified on the factual matrix of the case and was supported by the contemporaneous and admissible documents produced by affidavit evidence. Therefore, with respect, it is most unfair, improper, undignified of the defendant to apply to recuse the Bench for making judicial findings and when the decision was given against him by raising grounds which on the face of it is flimsy and frivolous and ought not to be judicially tolerated and be should rejected in limine. It is important to maintain and for this court to dispense justice fearlessly and impartially and free from any intimidation or pressure.
[31] There cannot also be any 'shortcuts' or just lip service in the discharge of its judicial function. Similarly, counsel who attend court to represent their clients and argue their cases are also expected to uphold the course of justice without regard to their own interest, uninfluenced by fear or favour or any ulterior motive. Counsel paramount duty is to the court and to assist the court so that the court would be able to arrive at a just decision. If this court is not firm when deciding the defendant's recusal application, this court will forever be influenced by the fear factor of having to be recused through frivolous application by a loosing party to have his case heard by another judge and this would only delay the disposal of cases registered in a particular court. While a judge may recuse herself or himself depending on the particular circumstances of the case, yet the court must always be vigilant and watchful and never abdicate his judicial function by too readily allowing herself or himself to be recused out of fear that the loosing party may intend to cause further embarrassment to the Bench.
[32] This court would even go to the extent of saying that 'a judge's impatience, annoyance, anger, sarcasm, decision, rudeness and sharp remarks' are also insufficient to meet the test for establishing bias (Confectionately Yours Inc (Re) (2002) 219 DLR (4th) 72 (Ont CA), R v Grandaur [2007] BCJ No 647 (SC)). Unless the judge is seen to descend into the adversaries arena or demonstrates animosity or antipathy towards a party or a party's lawyer (Ayerst Makenna & Harrison Inc v Apotex Inc (1983) 41 OR (2d) 366 (CA) Blanchette v CIS Ltd (1973) 36 DLR (3d) 561 (SCC):

To enable our justice system to function effectively, litigant and the public must have confidence that judges will be true to their oath of office and act impartially, without bias, for or against any party. In short, that judges must act judicially (R v Gaudaur (2007) BCSC 434).
... public confidence in our legal system is rooted in the fundamental belief that those who adjudicate in law must always do so without bias or prejudice and must be perceived to do so (Wewaykum Indian Band v Canada, [2003] 2 SCR 259; 2003 SCC 45 at para 57)
A system of justice, if it is to have the respect and confidence of its society, must ensure that trials are fair and that they appear to be fair to the informed and reasonable observer. This is a fundamental goal of the justice system in any free and democratic society (R v RDS (1999) 3 SCR 484).
It is right and proper that judges be held to the highest standards of impartiality since they will have to determine the most fundamentally important rights of the parties appearing before them. This is true whether the legal dispute arises between citizen and citizen or between the citizen and the state. Every comment that a judge makes from the bench is weighed and evaluated by the community as well as the parties. Judges must be conscious of this constant weighing and make every effort to achieve neutrality and fairness in carrying out their duties. This must be a cardinal rule of judicial conduct (R v RDS (1999) 3 SCR 484, Wewaykum Indian Band v Canada [2003] 2 SCR 259; 2003 SCC 45, at para 57)...."


In Mohamed Sam bin Sailan v Sykt Asal Contruction Sdn Bhd [2014] 10 MLJ 293, it was held that:-

"...Ruling of the court
[65] Having perused the evidence adduced, I find that the plaintiff has failed to adduce any cogent evidence to prove that the defendant had utilised his name to secure the said three projects....[83] For the above reasons, I find that the plaintiff has failed to prove beyond reasonable doubt that the defendant company had defrauded the plaintiff by forging his signatures in the alleged documents tendered in court and has used his name to procure the said three projects...."

Malaysia-Standard of proof where fraud is alleged

In the Court of Appeal case of Tiong Hoo Teck v Wong Ho Enterprise Sdn Bhd & Ors (No 2) [2014] 4 MLJ 405, it was held that:-

"...[12] The appeal by the appellant was primarily based on the findings of fact by the High Court. We have read the appeal record and found that there were ample evidence to support the said findings. Thus there was no reason for us to interfere with the said findings of fact.
[13] We agreed with the decision of the High Court that there was no evidence to show that there were special circumstances including actual fraud or some inequitable or unconscionable conduct amounting to fraud in equity for the court to pierce the corporate veil: Law Kam Loy & Anor v Boltex Sdn Bhd & Ors [2005] MLJU 225; [2005] 3 CLJ 355, Perman Sdn Bhd & Ors v European Commodities Sdn Bhd & Anor [2006] 1 MLJ 97. The standard of proof where there is an allegation of fraud is one of beyond any reasonable doubt: Yong Tim v Hoo Kok Chong & Anor [2005] 3 CLJ 229, Asean Security Paper Mills Sdn Bhd v CGU Insurance Bhd [2007] 2 MLJ 301; [2007] 2 CLJ 1, which the appellant had failed to discharge...."

Malaysia-Leave to intervene-commercial interest insufficient

In the Court of Appeal case of Dato' Suhaimi bin Ibrahim & Ors v Korsortium Lapangan Terjaya Sdn Bhd and other appeals [2014] 4 MLJ 419, it was held that:-

"...[15] Reverting to the case at hand, the appellants in this application are merely trying to obtain leave from the court to ensure that the might of the majority is not abused. In short this is essentially a dispute between the appellants as minority shareholders and Lim Chew Yin as the majority shareholder.
[16] How the respondents can be affected by the court's decision in this originating summons is hard to comprehend. They are not shareholders of Hi Summit, they just happened to be the defendants in the Suit 1958 which was struck out. They may be beneficiary of that decision but that does not mean that they have any interest in the dispute between the minority and the majority shareholders in Hi Summit. As rightly pointed out by learned counsel for the appellants, the only interest which the respondents may have is purely a commercial interest linked to the outcome of Suit 1958. Commercial interest is not an interest envisaged in O 15 r 16...."

Malaysia-Section 90A Evidence Act, 1950 certificate is not mandatory

In the Court of Appeal case of Mohd Khayry bin Ismail v Public Prosecutor [2014] 4 MLJ 317, it was held that:-

  • in the instant case, R v Maqsud Ali will apply, as there is no issue as to the correctness of recording or tampering, etc. Even if s 90A was to be made applicable, a certificate is not sine qua non for its admissibility. The Court of Appeal in Gnanasegaran a/l Pararajasingam v Public Prosecutor [1997] 3 MLJ 1 had asserted that the production of the certificate is permissive and not mandatory. The Court of Appeal on this issue observed:

    On reading through s 90A of the Act, we are unable to agree with the construction placed by learned counsel. First and foremost, s 90A which has seven subsections should not be read disjointedly. They should be read together as they form one whole provision for the admissibility of documents produced by computers. As stated earlier, s 90A was added to the Act in 1993 in order to provide for the admission of computer produced documents and statements as in this case. On our reading of this section, we find that under sub-s (1), the law allows the production of such computer-generated documents or statements if there is evidence, firstly, that they were produced by a computer. Secondly, it is necessary also to prove that the computer is in the course of its ordinary use. In our view, there are two ways of proving this. One way is that it 'may' be proved by the production of the certificate as required by sub-s (2). Thus, sub-s (2) is permissive and not mandatory. This can also be seen in sub-s (4) which begins with the words 'Where a certificate is given under subsection (2)'. These words show that a certificate is not required to be produced in every case. It is our view that once the prosecution adduces evidence through a bank officer that the document is produced by a computer, it is not incumbent upon them to also produce a certificate under sub-s (2) as sub-s (6) provides that a document produced by a computer shall be deemed to be produced by the computer in the course of its ordinary use. It is also our view that the prosecution can tender the computer printout through the investigating officer without calling any bank officer. Therefore, when they adopt this way of proof, then it would be incumbent upon them to establish that the document is produced by a computer in the course of its ordinary use by producing the certificate under sub-s (2). The reason seems to me to be obvious as the investigating officer will be in no position to say that the printout is produced by a computer in the course of its ordinary use, as he is not an officer of the bank.

    4 MLJ 317 at 328
    In the present case, Zainal--the person in charge of the operations of current accounts--testified that the statement of accounts was a computer printout. Therefore, in our view, the first part of sub-s (1) has been proved, ie that the document is a computer printout. It would be superfluous for him to issue a certificate under sub-s (2) when firsthand evidence that 'the document so were produced by a computer' was given by Zainal. It would be superfluous to have a provision such as in sub-s (6) if in every case a certificate must be produced. It follows, therefore, that such a certificate need only be tendered if an officer like Zainal is not called to testify that the statement is produced by a computer. Then the certificate becomes relevant to establish that the document is produced by a computer in the course of its ordinary use. It is our view that when such an officer is not called, the court cannot rely on the deeming provision of sub-s (6). Once the court accepts the evidence of Zainal--and in this case we cannot see any reason whatsoever for the court not to as there was no challenge by cross-examination -- the prosecution has succeeded in proving what s 90A(1) requires them to prove: that such document was produced by the computer and in view of the deeming provision of sub-s (6), the second part is also proved...."

Malaysia-Dying declarations

In the Court of Appeal case of Balan Subramaniam a/l Ponnudurai v Public Prosecutor [2014] 4 MLJ 331, it was held that:-

"...[18] We have read the appeal record and the submissions of the parties in
4 MLJ 331 at 344
detail. We are grateful to the learned counsel for the comprehensive submissions. After much consideration to the submission of the learned counsel for the appellant, we are of the considered view the appeal must be dismissed. Our reasons, inter alia, are as follows:

  • (a)
    in the instant case, the jurisprudence relating to dying declaration and s 32(1)(a) of the EA 1950 forms the substantive evidence to drive home the charges. In addition, the supporting evidence of the neighbours gives greater probative force to the statements; 
  • (b)
    it is well established that the recovery of the dead body of the victim or a vital part of it, bearing marks of violence, is sufficient proof of homicidal death of the victim, (see Rama Nand v State of Himachal Pradesh AIR 1981 SC 738). In addition, even if the body is not recovered, pure circumstantial evidence itself is sufficient to sustain a charge of murder, (see Sunny Ang v Public Prosecutor [1966] 2 MLJ 195); and 
  • (c)
    The threshold for admissibility of statement in the nature of dying declaration under s 32(1)(a) is very low in contrast to dying declaration at common law. The real issue is one of probative force (see Bandahala bin Undik v Public Prosecutor [2014] 1 CLJ 708). 
[19] In the instant case, the statement by Angeladevi as well as Anuradha inclusive of the evidence of the neighbours give a greater probative force to the evidence to attach culpability. The prosecution case does not solely depend on a statement as the cases cited by the learned counsel for the appellant shows. No reasonable tribunal, on proper appraisal of the facts of the case will say the statements made in the instant case cannot be trustworthy and will not inspire confidence. In addition, the cases cited by the learned counsel for the appellant can be distinguished from the facts of the instant case and we are of the considered view that judicial time ought not be spent on explaining issues which are not relevant to the subject matter of the facts of this case.
[20] The learned counsel's argument that no medical certificate was produced to admit dying declaration in reliance of Indian cases is not part of our jurisprudence or law. India has some provisions to deal with such issues but in our jurisprudence, the EA 1950 is the sole guideline, and the admissibility issue is related to s 32(1)(a) and nothing more. What is important in admitting or relying on dying declaration is that the court must be careful to ensure that the statement is not fabricated or concocted, tutored or tailored etc; more so when conviction is going to be based on the dying declaration itself. Further, the court must ensure that the statement, whether oral or reduced into writing must accurately represent what the deceased has said (see Naranjan Singh v Public Prosecutor [1949] 1 MLJ 122)...."

Malaysia-Failure to call material witnesses

In the Court of Appeal case of Marappan a/l Muthusamy v R Sivam a/l Ramasamy [2014] 4 MLJ 428, it was held that:-

"...[28] We agree with learned counsel for the appellant that if the DOA (exh D3) was prepared by the same solicitor who also prepared the SPAI of even dates, these discrepancies, which brought about suspicion, would not have arisen. The failure of the respondent to call the solicitor to testify on these documents despite informing the appellant in writing that he would be present to testify, in our view attract the invocation of s 114(g) of the Evidence Act 1950 against the respondent. There was no explanation being offered by the respondent as to his failure to call this material witness despite notifying the appellant in writing that he would procure the attendance of Ti Chin Lee as witness at the trial. It would be imperative upon the respondent to call the material witnesses he had undertaken to do in writing, and the failure to do so without explanation could lead to an adverse inference against the respondent. In the circumstances we agree with learned counsel for the appellant that the legal inference under s 114(g) applies against the respondent. The solicitor, Ti Chin Lee, if he had been produced before the court at the trial would surely be able to explain the mystery of exh D3..."

Malaysia-Forms of acknowledgement of debt

In the Federal Court case of Yam Kong Seng & Anor v Yee Weng Kai [2014] MLJU 476, it was held that:-

"...[20] Currently acknowledgment, documentary or otherwise, may come in the form of an affirmation by thumb prints (openly accepted by courts to cater to the needs of the unfortunate and illiterates), identifiable voice evidence from tape recorders, CCTV, video-conferencing (made permissible by the Evidence Act 1950) and the like. Malaysia is no more the laggard in this technologically fast moving world and gone are the archaic days when literal interpretations of the law were the order of the day. Despite the acceptance of modern construction and purposive approach in cases or statutes, before an acknowledgment is accepted by Courts, it still must be proved by admissible evidence. It may be proved like any other fact...."

Malaysia-Ignorance of the law is no excuse

In Gemilang Mirza Sdn Bhd & Ors v Public Prosecutor [2014] 11 MLJ 300, it was held that:-

"...A mistake in law is no defence as ignorance of the law is no excuse. The law as stipulated in s 25(1) read with s 2 definition of deposit and s 106(1) of the BAFIA prescribes the offence in clear term. It is unsustainable for the defence to contend that they are ignorant of the law as it is the appellants duty and responsibility to find out before they embarked onto such business...."

Malaysia-Mediation Skills Training Course (26 to 30 Nov 2014)

Mediation Skills Training Course (26 to 30 Nov 2014)

If this email does not display correctly, please click here to view the content online.

This circular may also be accessed here.


Malaysia-Mediation Skills Training Course (26 to 30 Nov 2014)

Mediation Skills Training Course (26 to 30 Nov 2014)

If this email does not display correctly, please click here to view the content online.

This circular may also be accessed here.


Malaysia-Sijil Annual and PII Workshop 2014 (22 Sept 2014)

Sijil Annual and PII Workshop 2014 (22 Sept 2014)

If this email does not display correctly, please click here to view the content online.

This circular and the attachment may also be accessed here.


Malaysia-Postponement of Effective Date of Relocation of the MdI Office (Kuala Lumpur Branch)

Postponement of Effective Date of Relocation of the MdI Office (Kuala Lumpur Branch)


Circular No 204/2014
Dated 12 Sept 2014
To Members of the Malaysian Bar
Postponement of Effective Date of Relocation of the MdI Office (Kuala Lumpur Branch)
We refer to Circular No 191/2014, dated 28 Aug 2014, regarding the relocation of the Malaysia Department of Insolvency Office (Kuala Lumpur Branch).
The Director General of Malaysia Department of Insolvency ("MdI"), Haslina Mansor, has extended to us a copy of a notice entitled "Makluman Pindaan Tarikh Perpindahan Pejabat Jabatan Insolvensi Malaysia (MdI) Cawangan Wilayah Persekutuan Kuala Lumpur", dated 29 Aug 2014.
The notice states that the effective date for the relocation of that Insolvency Office to, and commencement of its operations at, the new premises has been postponed to 1 Oct 2014 (Wednesday).
The relevant portion of the notice, which we received on 5 Sept 2014, is reproduced below.
Thank you.
Richard Wee Thiam Seng
Malaysian Bar
Tarikh: 29 Ogos 2014
Saya dengan hormatnya merujuk surat rujukan kami MdI/156/F/001/117(20) bertarikh 4 Ogos 2014 mengenai perkara di atas.
2.         Dimaklumkan bahawa perpindahan dan operasi Jabatan Insolvensi Malaysia (MdI) Cawangan Wilayah Persekutuan Kuala Lumpur terpaksa ditunda kepada 1 Oktober 2014.  Oleh itu, Jabatan ini memohon tarikh pendengaran dan perbicaraan kes-kes di Mahkamah yang melibatkan kehadiran pegawai dari MdI Cawangan Wilayah Persekutuan Kuala Lumpur diberikan pengecualian atau kelapangan sepanjang tempoh perpindahan yang dijangka akan bermula pada 10 September 2014 sehingga 3 Oktober 2014.
This circular may also be accessed here.


Malaysia-Conveyancing Practice Hi-Tea & Get-together 2014

Conveyancing Practice Hi-Tea & Get-together 2014

SBC/CIR/066/14  12th September 2014

Conveyancing Practice Hi-Tea & Get-together 2014     The Selangor Bar Conveyancing Practice & Sub-Committee 2014/15 is organising a Hi-Tea and Get-together for Conveyancing practitioners and heads of relevant authorities:     Date:     15 October 2014 (Wednesday)  Time:     3.00 pm to 5.00 pm  Venue: Kelab Golf Negara Subang, Jalan SS7/2, Kelana Jaya, Petaling Jaya  Ticket:  RM60.00 per pax     The invited guests will include:               Representative from Selangor Land Registry               Representative from Wilayah Land Office               Representative from Lembaga Hasil Dalam Negeri (LHDN)               Representative from Bahagian Pinjaman Perumahan Perbendaharan Malaysia (BPP)               Representative from Malaysian Department of Insolvency (MdI)     The event is an opportunity for all conveyancing practitioners to foster better working relationship with the government agencies involved in the conveyancing practice over coffee or a get-together over tea, it's an occasion for all to get to know each other.     Drop everything and come to the Hi Tea & Get-together 2014.  Seats are limited to 50 participants only.     For further information and tickets, please contact Shariza at the Selangor Bar Secretariat 03-5519 6219 or email at or Click here poster     Warm Regards,     Vishnu Kumar  Chairman  Selangor Bar Committee


Malaysia-MORE SEATS AVAILABLE! | Seminar on an Introduction to GST (17 Sept 2014)

MORE SEATS AVAILABLE! |  Seminar on an Introduction to GST (17 Sept 2014)

Please note the new venue and new registration fee for the seminar. Walk-in registrations will not be permitted.


Circular No 195/2014
Dated 2 Sept 2014
To Members of the Malaysian Bar
Seminar on an Introduction to GST (17 Sept 2014)
On 25 Oct 2013, the Malaysian Government announced that the Goods and Services Tax ("GST") will be implemented on 1 Apr 2015.  GST is set to replace the current sales and services tax. 
The Continuing Professional Development ("CPD") Department is organising a seminar regarding GST, which is open only to Members of the Bar and administrative staff from law firms.
The seminar will cover the following areas:
(1) Key GST principles;
(2) Scope and charges to tax;
(3) Case studies (in relation to GST);
(4) Comparative legislation;
(5) Criminal provisions; and
(6) Implications on law firms. 
The details of the seminar are as follows:
Date:                           17 Sept 2014 (Wednesday)
Time:                          9:30 am to 12:30 pm (Registration will begin at 9:00 am)
Venue:                        Auditorium, 3rd Floor, ​Wisma MCA, Jalan Ampang, Kuala Lumpur
Registration Fee:        RM80
CPD Code / Points:     T3/17092014/BC/BC141168/3 / Three
The speakers for this seminar are:

  • Renuka Bhupalan
Renuka is the Managing Director of Taxand Malaysia Sdn Bhd.  She graduated with an LLB (Honours) degree from University of Bristol, United Kingdom ("UK"), and qualified as a barrister-at-law from Grays Inn, UK.  She subsequently obtained the Associate of the Taxation Institute Incorporated ("ATII") professional tax qualification in the UK, and currently serves as a Council Member of the Chartered Tax Institute of Malaysia ("CTIM").  Renuka has extensive experience in corporate tax, and international tax, to name a few, involving a wide range of industries, and co-leads the GST service line at Taxand Malaysia Sdn Bhd.
  • Anand Raj
Anand was admitted as an advocate and solicitor of the High Court of Malaya in October 1996 and has been a partner of Messrs Shearn Delamore & Co since 2003.  He is a member of the Executive Committee of the International Fiscal Association (Malaysia Branch), the Chairperson of the Bar Council Tax Subcommittee, the former Chairperson of the Tax Committee of the American Malaysian Chamber of Commerce, and a member of the Bar Council Competition Law Subcommittee.  Anand is the Malaysia Rapporteur for the International Bar Association's Antitrust & Competition Newsletter.
  • Irene Yong
Irene was admitted as an advocate and solicitor of the High Court of Malaya in 1999 after obtaining an LLB (Honours) degree from the University of London in 1997 and the Certificate in Legal Practice in 1998.  In 2003, she completed her MBA at Warwick Business School, UK.  Irene was a member of Messrs Shearn Delamore & Co's Tax and Revenue Practice Group from 1999 to 2002 and rejoined the practice group in 2004, after completing her MBA and practising as a foreign legal advisor in Singapore.  She was admitted as a partner of Messrs Shearn Delamore & Co in 2008.  Irene is a member of the International Fiscal Association (Malaysia Branch) and a member of the Bar Council Tax Subcommittee.
To attend the seminar, kindly:
(1) complete the online registration form here; or
(2) complete and submit the attached registration form and proof of payment by fax to 03-2050 2112, or by email to, by 15 Sept 2014 (Monday).
Payment options:
(1) Direct deposit to Hong Leong Bank Berhad, No 9 Jalan Tun Tan Cheng Lock, 50000 Kuala Lumpur (Account: 283-00-00108-6; SWIFT code: HLBBMYKL); or
(2) Cheque or bank draft, payable to "Bar Council"; or
(3) Cash payment, at the ground floor of the Bar Council Secretariat.
Thank you.
Anand Raj
Tax Subcommittee
HR Dipendra and Raphael Tay
Professional Standards and Development Committee
This circular and the attachment may also be accessed here.


Proview eBook Bi-Weekly Offer - Get your copy at 20% off!

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