By R. Jayabalan Appeal Record may be filed without Memorandum of Appeal in the absence of ground of judgment within 90 days. In 2023 in Aliff Syukri case the Court of Appeal held that appeal records filed without memorandum of appeal are defective even in a situation where the High Court judge had not issued the grounds within the stipulated 90 days. This decision caused much consternation among practitioners for the simple reason that: how does the appellant state the grounds (in the memorandum of appeal) to attack the decision if the reasons/grounds for the decision are unknown? Essentially this would require the appellant to speculate and guess the reasons and further state speculative grounds to challenge the decision. Somehow this practical difficulties was lost in the decision in Aliff Syukri! Thankfully another bench of the Court of Appeal has now decided that Aliff Syukri was per incuriam (wrongly decided) and applied the correct approach viz. if the High Court had not provided the grounds within 90 days then the appeal record maybe filed WITHOUT the memorandum of appeal and the memorandum maybe filed within three weeks AFTER receipt of the grounds – this is perhaps the correct interpretation of r. 18(7). The Court of Appeal also recognised the fact of difficulties in drafting the memorandum of appeal without the grounds and that the memorandum in such a case would be a speculative product. Secondly, the Court of Appeal when holding Aliff Syukri as per incuriam also noted that for that decision, no grounds of decision was given and that only broad grounds was given. It was held that ratio decidendi cannot be ascertained from such broad grounds. Happily, this recent decision has removed a major headache for appellants when preparing appeal records in the absence of the grounds within the 90 days. Kudos to the panel. Well done to the lawyers involved. R. Jayabalan MESSRS R. JAYABALAN

By R. Jayabalan Pre-Merdeka and Post-Merdeka Laws The Federal Constitution (FC) is the supreme law of the Federation of Malaysia and any law inconsistent with the FC is void to the extent of the inconsistency. This is trite law – Alma Nudo Atenza  v PP (and another appeal) [2019] 3 AMR 101. In its scope of application, the FC recognizes two categories of laws namely pre-Merdeka and post-Merdeka laws and each are treated differently when found to be inconsistent with the FC. Post-Merdeka laws refers to laws passed after 31.8.1957 i.e Merdeka Day. Pre-Merdeka laws refers to laws referred in the FC as “existing laws” and more clearly defined in Article 160(2) as “any law in operation  in the Federation or any part thereof immediately before Merdeka Day”. Whilst Article 4(1) declares the FC as the supreme law and laws that are inconsistent with the FC are void, this however only applies to laws passed after Merdeka Day e.g. in Semenyih Jaya Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat [2017] 4 AMR 123, the Federal Court declared s 40D of the Land Acquisition Act 1960 to be unconstitutional for being inconsistent with Article 121 in respect of judicial powers.    Article 162 and the judicial modification powers of pre-Merdeka laws               Pre-Merdeka laws are given separate treatment under Article 162. Under this provision, the laws in place before the Merdeka Day continue to be in force after Merdeka Day but subject to modifications as may be made under Article 162 or by the Federal or State law. If the pre-Merdeka law had not been modified under Article 162, and found to be inconsistent with the FC, the court applying the law has the powers to apply it with the necessary “modification” to bring the law into accord with the FC. “Modification” is defined in Article 162(7) as including “amendment”, “adaptation” and “repeal”.    In  Surinder Singh Kanda v Govt of Malaya [1962] MLJ 162 there was inconsistency between the pre-Merdeka law that refers to the powers of the ‘Commissioner of Police’ and the FC that refers to ‘Police Service Commission’. The Privy Council applied Article 162  and read the pre-Merdeka law as modified by reading the reference to Commissioner of Police as Police Service Commission thus bringing the law into accord with the FC. In Kerajaan Negeri Selangor & Ors v Sagong bin Tasi & Ors [2005] 5 AMR 629 the Court of Appeal found that s 12 of the Aboriginal Peoples Act 1954 on land compensation had violated the aboriginals  right to adequate compensation under Article 13(2) of the FC. As it was a pre-Merdeka law, the court applied Article 162(6) and modified s 12 to render it harmonious with Article 13(2) by interpreting the word “may” for “shall” and introducing “adequate” before “compensation” – thus incorporating a new phrase “the State Authority shall grant adequate compensation…” into s 12 and brought s 12 into accord with the FC that ensured that the aboriginals constitutional right to adequate compensation was protected.   In Ling Towi Sing & Ors v Sino America Tours Corporation Pte Ltd [2022] 4 AMR 117 an attempt was mounted under Article 162(6) to modify s 24(1) of the Limitation Act 1953 on the grounds that s 24(1), a pre-Merdeka law, had contravened the right to equal protection under Article 8(1). That attempt however was not successful as the Court of Appeal had found that s 24(1) had not contravened Article 8(1). Does the power to modify laws under Article 162(6) means that the court makes laws and usurps the role reserved for the legislature by the FC? This was answered by the Court of Appeal in Sagong bin Tasi : “ I am aware that ordinarily we, the judges, are not permitted by our own jurisprudence, to do this. But here you have a direction by the supreme law of the federation that such modifications as the present must be done. That is why we can resort to this extraordinary method of interpretation.”       Breaking down Article 162 – Lai Hen Beng v. PP [2024] 1 AMR 249 (enticing married woman)               The Court in the earlier cases did not venture into an analysis of Article 162 in order to explain the modification powers.   This fortunately was undertaken by the Federal Court led by the Chief Justice recently in  Lai Hen Beng  v.  PP [2024] 1 AMR 249.               The accused was charged under s 498 of the Penal Code for enticing a married woman. He contended that s 498 was unconstitutional  as it had unfairly discriminated against women in breach of the gender equality in Article 8. It was contended that as s 498 only protects a husband’s right to a peaceful marriage against the interference of a third party without providing similar protection to the wife, there was discrimination against women. The court had little difficulties in finding that s 498 was in violation of the gender equality provision in Article 8(2) as it only entitled husbands to rely on the provision to the exclusion of all wives.  There was gender discrimination and s 498 was unconstitutional.               This was rather straightforward. The more difficult task for the court however was what to do next with s 498?  S. 498 a pre-Merdeka law: It was first held that s 498 was a pre-Merdeka law or “existing law”.  The provision had first appeared in the Indian Penal Code in 1860 that was later applied in the Federated Malay States in 1871 and the Unfederated Malay States in 1872. The Federated Malay States (FMS) Penal Code was enacted in 1935 and extended throughout Malaya in 1948. In 1976 the Penal Code was extended to Sabah and Sarawak. In 1997, the FMS Penal Code was revised and renamed the Penal Code (Act 574). Throughout  the long history of the Penal Code, s 498 however has remained unchanged from the time of its first appearance in the Indian Penal Code. The options of modification

By R. Jayabalan Pre-Merdeka and Post-Merdeka Laws The Federal Constitution (FC) is the supreme law of the Federation of Malaysia and any law inconsistent with the FC is void to the extent of the inconsistency A recent case brought to light some unpleasant issues on the preparation of witness statements. Lawyers  have different practices on this. Our practice  over the years and proven effective as follows: 1. Interview the client in depth to identify potential witnesses. 2. Identify witnesses who would co- operate voluntarily and those who  would require subpoena. 3. Ask the client to arrange for the witness to attend a meeting with the lawyer in person. 4. Interview the witness, take down a detailed statement – in the presence of the client.  5. Inform the witness why the need to call him, and the process involved – examination-in-chief, cross-examination and re-examination. 6. Agree on the witness allowance, travelling and accommodation arrangements for court attendance. 7. Prepare the draft witness statement. 8. Go through the draft with the witness – in the presence of the client. 9. Impress upon the witness that he is free to amend as he wishes and that he must be fully comfortable and confident with every sentence – if he is not certain or uncomfortable remove the sentence.  10. Witness should not feel that he is being forced to say something beyond his wish. 11. There may be varying versions on certain facts between the witness and client – resolve it there and then. 12.  Inform that  the statement has to be filed in court and once filed it ought not be amended except  for very good reason. 13. When a witness is not comfortable to say certain facts  but if it requires to be said (e.g he is the best witness on that fact) and important to the client’s case then explain the law  on that matter and why it has to be said by him. 14. Go through the finalised statement with the witness again in the presence of the client and get the witness’ confirmation on the contents.  15. Prepare the witness for potential cross-examination on every aspects of the statement and related aspects outside the statement. 16.  Email a copy to the witness or get acknowledgement of receipt in writing. 17. Witness statement need not be signed before filing as the statement is to be signed in open court. 18.  When filing send a copy to the witness and the client and inform that it has been filed and served. 19. Meet the witness 2 or 3  days before the hearing,  go through the statement again and the potential cross examination. Refamiliarise the witness with the bundle of documents.  20. Caution the witness on the importance of consistency throughout his examination and the risk of perjury.  21.  Advise the witness on the court etiquette, time to be in court, dress code and how to address the judge and lawyers. 22. Ensure that the witness allowance is paid and his travelling and accomodation is attended to.  23. Meet the witness in court, show where he will be seated. If a case is going on, ask him to sit inside to  observe the proceedings to get a feel of what is to come.  We trust the above would be of assistance to fellow lawyers.

R.Jayabalan When a workman challenges his dismissal from employment at the Industrial Court, is it open to the employer to justify the dismissal on grounds other than that given at the time of the dismissal? What if the workman does not wish to be reinstated to his former position? Does that mean the Court ceases to have jurisdiction over the workman’s claim for unfair dismissal?   These issues came up again recently before the Court of Appeal in Melipoly Enterprise Sdn Bhd  v.  Ong Hong Yeok & Anor. In a decision given on 18.3.2024 the Court answered the questions in favour of the workman.       The workman was terminated by way retrenchment on grounds of economic recession and poor sales – as stated in the notice of termination. He claimed unfair dismissal and the dispute was referred to the Industrial Court. At the trial, the employer raised other grounds to justify the dismissal such as poor performance, failure to disclose conflict of interest and sexual harassment. And during the cross-examination when he was asked whether he was seeking reinstatement the workma n answered that he does not wish to be reinstated to his former position. The grounds for the termination The Industrial Court and the High Court held that the Court is only to inquire into the reasons advanced by the employer  in the notice of termination and not to go into another reason not relied upon or to find one for it. The Court of Appeal agreed with this and held that the Court must confine itself (only) to the question of whether the grounds in the notice were proven. Reference was made to the well known case of Goon Kwee Phoy  v.  J& P Coats (M) Sdn Bhd [1981] 2 MLJ 129 that was recently affirmed by the Federal Court in Maritime Intelligence Sdn Bhd v Tan Ah Gek FC [2021] 10 CLJ 663. In Goon Kwee Phoy the Federal Court stated that “If the employer chooses to give a reason for the action taken by him, the duty of the Industrial Court will be to enquire whether that excuse or reason has or has not been made out. If it finds as a fact that it has not been proved, then the inevitable conclusion must be that the termination or dismissal was without just cause or excuse. The proper enquiry of the court is the reason advanced by it and that court or the High Court cannot go into another reason not relied on by the employer or find one for it.” In Maritime Intelligence the Federal Court reaffirmed Goon Kwee Phoy and held that “…. the passage restricts the enquiry of the Industrial Court to the reasons given for the action taken by the employer. That can only mean the reasons operating on the mind of the employer preceding his decision to terminate the workman’s services, which are usually specified in the letter of dismissal.”  Hence it is clear that the subsequently put-up grounds of poor performance, conflict of interest and sexual harassment ought not be considered. The Court confined its examination to the reasons in the notice of termination and agreed that the retrenchment on grounds of economic recession and poor sales was not proven. The dismissal was without just cause or excuse and the retrenchment was not bona fide. On the effect of rejection of reinstatement. The employer also contended that the Industrial Court had ceased jurisdiction to inquire into the dispute when the workman said in cross-examination that he did not wish to be reinstated and that he had started his own business after the termination.   The employer relied on Holiday Inn Kuching v Elizabeth Lee Chai Siok  [1992] 2 CLJ (Rep) 521 where it was held that pursuant to s. 20(1) and (3) of the Industrial Relations Act 1967, the Industrial Court ceases jurisdiction if reinstatement is no longer applied for and that  the workman must “want his job back” .   The employer also referred to the Federal Court decision in  Unilever (M) Holdings Sdn Bhd v So Lai @ Soo Boon Lai & Anor  [2015] MLJU 234 where it was held that compensation in lieu of reinstatement may not be awarded when reinstatement is no longer possible. The Court of Appeal rejected the argument and reaffirmed its decision in Sanbos (M) Sdn Bhd  v Gan Soon Huat  [2021] 4 MLJ 924 that had found  Holiday Inn as not good law and held that the Court was seized with the jurisdiction to hear the dispute once the Minister made the reference under s. 20(3) of the Act notwithstanding that the workman may no longer wants the reinstatement and emphasised that the Court derives its jurisdiction from the order of reference by the Minister under s. 20(3).  The Court does not cease to have jurisdiction if the remedy of reinstatement is not pursued or when the workman did  wish to be “put back into employment”. As for the reliance on Unilever, the Court pointed out the distinction on the facts. In Unilever reinstatement was no longer possible as the workman had reached the retirement age by the time the award was made.  Here, the workman’s former post was still available and he has withdrawn from his own business; there was still legal basis for him to be reinstated. Consequently, the Industrial Court award allowing compensation in lieu of reinstatement and backwages was upheld.   This decision by the Court of Appeal made it clear once again that employers are bound by the reasons given in the termination notice or the reasons contemplated at the time to justify the termination and cannot look to rely on extraneous reasons that could be considered as afterthought.  The decision also emphasized, after Sanbos earlier, that the jurisdiction of the Industrial Court is derived from the reference under the Act and not so much on whether the workman wants his job back.  In total, it is a decision that advanced the interest of the workman under

(R.Jayabalan – Messrs R.Jayabalan) An important direction issued at the pre-trial case management in a civil action is the preparation of the common agreed bundle of documents (CABD or ABD) under O. 34 r. 2(2) Rules of Court 2012 whereby all documents that the parties will be relying upon at the trial are to be compiled into a common bundle for easy reference and examination by the court, witnesses, and parties. The common bundle is to be divided into three parts – Part A, B and C. Part A: documents of which the authenticity and contents are not disputed (marked as ‘agreed and admitted’ or ‘dipersetujui dan diakui’). When a document is in Part A, it means the parties agree that the document exists and the contents are true. The original of the document need not be produced at the trial and the maker of that document need not be called as witness. Documents commonly placed in Part A are official documents from authorities such as identity card, license, birth/death/marriage certificates, passports and certificates. The contents are wholly accepted as true and not disputed at all by the parties and cannot be challenged at the trial. Part B: documents of which the authenticity is not disputed but the contents are disputed (marked as ‘agreed but not admitted’ or ‘dipersetujui tetapi tidak diakui’).  When a document is in Part B, it means the existence and authenticity of the document is not disputed but its contents are disputed by the parties. The original document need not be produced and the maker of the document need not be called as witness as the existence and authenticity of the document is no longer an issue. The contents of the document however must be proven by the party relying on that document and this may be done by calling any witness and not necessarily by calling the maker. For example, if the plaintiff is relying on a document issued by a third party and placed in Part B, the plaintiff himself may give evidence on the said document if he has knowledge of the document without calling the third-party maker. Documents usually placed in Part B are medical reports, medical records, invoices, receipts, employment documents, bank statements, correspondences between parties and/or solicitors, and other  documents that had transpired between the parties.    Part C: documents of which the authenticity and contents are disputed (marked as ‘non-agreed’ or ‘tidak dipersetujui’). When a document is in Part C, it’s very existence is disputed and its contents also disputed – usually due to allegation of fraud or forgery. The party that relies on the document must prove it  by calling the maker and producing the original document.    Documents that are usually placed in Part C are documents issued by unknown third parties to the action and documents that were outside the knowledge of the parties. Preparation of the agreed common bundle This is the responsibility of the solicitors for the plaintiff. The parties would exchange their respective documents with their views on the placement of the documents. There would be discussions to persuade the parties to change their position between the solicitors or with the assistance of the Court during case management. More so, when there are no reasonable grounds for objections. The objecting party will normally be asked to state the reasons for disputing the existence of the document or for requiring the maker to be called. Where the objection is unreasonable or plainly ‘just to be difficult’, the party forced to call the maker may give notice that they will ask for costs for calling of the maker as witness to be borne by the opposite party in any event.   Where there is no agreement, the document will be placed in the lowest  agreed part e.g if plaintiff wants the document in Part A but the defendant wants it in Part B, the document will go to Part B, not Part C; if plaintiff wants the document in Part B but the defendant wants it in Part C, the document will go to Part C. The primary objective is always to reduce the Part C documents as this will reduce the number of witnesses hence the length of the trial, and costs of the proceedings.   The preparation of the agreed bundle is to be done after the statement of agreed facts and agreed issues for trial is finalised. This is advisable as the agreed facts and issues would have narrowed down the issues for trial and from there the parties would be able to determine the documents that they would require as evidence at the trial to prove their respective case. At the trial Documents in Part A need not be marked as exhibit. It is treated as  evidence following reference to it by the witnesses. Documents  in Part B also need not be marked as exhibit. The court is usually informed at the outset that the parties have agreed for Part B documents not be marked as exhibit and to be  treated as evidence. This would save the court’s time of marking the documents individually as exhibits. It is for the Court to decide at the end of the trial on whether the contents of the Part B documents were proven and on the probative value to be given.  The documents under Part C however are to be marked as exhibit following the production of the original by the maker.      For a good understanding on the classification of the Part A, B and C documents, see the dissenting judgment in  Yeo Ing King v Melawangi Sdn Bhd [2016] 5 AMR 405 and the  Court of Appeal decision in Tiow Weng Theong v  Melawangi Sdn Bhd [2018] 5 AMR 465. The Federal Court decision in Melawangi Sdn Bhd  v Tiow Weng Theong  [2020] 2 AMR 505 is a good guide when there is dispute between the parties on the placement of the document.   R. Jayabalan

(R,Jayabalan) Upon completion of the nine months pupillage period, the pupil files his petition to obtain an order from the High Court admitting him as advocate and solicitor of the High Court of Malaya. This is referred to as ‘the Long Call’. The petition is filed with supporting affidavits and served on the interested parties such as the Bar Council, State Bar and the Attorney General’s Chambers. The petition is then fixed for hearing before the High Court Judge in the presence of the interested parties. A solicitor appears on behalf of the petitioner/pupil and moves the petition. He is known as ‘the Mover’. He submits on the merits of the petition, convinces the Court on the suitability of the petitioner and prays for the petition to be allowed. The interested parties then state whether they have any objections to the petition. Usually none although there have been occasions when objections were raised, such as when the petitioner had failed to meet the requirements. The judge then considers the petition, and if satisfied, issues the order admitting the petitioner as advocate and solicitor of the High Court of Malaya. This is the ‘call to the Bar’ order. Hence, the whole process is a formal court proceeding similar to any other court proceedings. The respect, formality and solemnity accorded to open court proceedings before the High Court equally applies to the Long Call proceedings. Nothing less. The Mover. The Master cannot be the Mover. Why? He is an interested party since the petitioner was his pupil. He is put in ’embarrassed’ or a ‘conflict of interest’ position by virtue of his proximity to the petitioner. This is just like any other situations where solicitors are prohibited from appearing for a party or in matters where they could be put in a conflicted position. Any other solicitor maybe called upon to be the Mover and appear for the petitioner. Who appoints the Mover? This is the Master’s responsibility, not that of the pupil. There have been instances where pupils frantically call lawyers in town to be the Mover. I too have received such calls. When queried the pupils say that the Master had asked them to find a Mover. This really shouldn’t be happening. It is the Master’s responsibility to secure a Mover. A Master who declines to do this, for whatever reasons, should take a hard look at himself. There are also rumours of lawyers who are regular Movers and charges a fee. They have become the go-to lawyers for pupils desperate for a Mover. This really shouldn’t be so. Moving a call is an honour and a service to the Bar. It is not to be done for a fee.  The Speech. The Mover’s speech is not a ‘speech’ at all. Far from it. It is in effect a submission on the merits of the petition. The Mover submits on the background of the petitioner, that the petitioner has met the requirements and worthy of being a member of the legal profession. Sadly however, this submission has now often become a ‘thanksgiving speech’ on behalf of the petitioner to all and sundry. I have seen ‘speeches’ with endless gratitude and thanks galore to family members, friends, teachers, girlfriend/ boyfriend, court staff, office staff, even land office staff, and primary school teachers. However, very little is said about the lessons learnt during the pupillage and the aspiration for the future in the profession, much less an expression of commitment to adhere and uphold the values and ideals of the profession. Such ‘thanksgiving speeches’ often become a cringe moment in court. And I always wondered why the Mover is allowing this to happen. Whilst expression of gratitude to immediate family members, the Master and his associates who guided the pupil, the law faculty teachers and maybe even close friends are understandable, any ‘thanksgiving’ beyond that is really questionable and unnecessary. Such extraneous ‘thanksgiving speeches’ takes away the solemnity and significance of the proceedings. They should be reserved to be done elsewhere, but not in Court. Hence the Master and especially the Mover should scrutinize the ‘speech’ more carefully to ensure it fits the proceedings instead of mouthing the script written by the pupil. After all, on record, it is the Mover’s words. (On this, dear old Fahri Azzat seems to have the penchant, not to mention tenacity (!), to write very good Mover’s ‘speech’. He is also generous enough to share them on his social media. His speeches serve as a good guide for pupil and Movers. Look up on them!). Moving on. The Order. Following the submission by the Mover, the Bar and AGC representatives state their position, and if no objections, the Judge issues the Order, thus admits the pupil to the Bar. The Robing. Then comes the highlight for every pupil, more accurately ex-pupil by now. After issuing the order, the Judge, at the behest of the Mover, invites the Master to step forward to ‘robe’ the ex-pupil. The Master steps forward, mostly beaming with pride, and helps his ex-pupil to put on the brand new robe/gown, congratulates him and wishes him well at the Bar. At that moment, turn around, and very often you will see parents, equally beaming with pride, some moved to tears seeing their prodigy standing there in the well of the court, in full regalia as the latest member of the honourable profession. The ‘robing’ is to be done by the Master or in his absence, a member of the Bar with atleast seven years in practice. The Bar Council ruling is clear on this. Parents or family members cannot do the robing. There have been instances of the Court inviting the parents or family members to do the ‘robing’. This, whilst certainly done with good intentions, however, is not right. The ruling also makes sense as a new member should be welcomed and received by a member of that profession, not by a non-member. So Masters must make every effort to attend

(R.Jayabalan – Principal, Messrs R. Jayabalan) Stamp duty is a form of tax imposed on various types of legal documents or instruments in Malaysia pursuant to the Stamp Act 1949 essentially to generate revenue for the government.                Sec 52 of the Act states that no instruments chargeable with duty shall be admitted in evidence or acted upon unless such instrument is duly stamped. Sec 2 of the Act defines an instrument “duly stamped” as amongst others an instrument that bears an adhesive or impressed stamp of not less than the proper amount of initial duty and that such stamp has been affixed in accordance with the law.  Sec 47 of the Act requires the stamping of the instrument to be done within 30 days from its execution.                 Does this mean that an instrument or agreement that was not stamped in accordance with the provisions of the Stamp Act 1949 becomes unenforceable in law and the contractual obligations under such agreement no longer binding on the parties? This issue arose in Malayan Banking Bhd v Agencies Service Bureau Sdn Bhd & Ors [1982] 1 MLJ 198, the appellant had filed a claim based on a letter of guarantee that was stamped late outside the 30 days period and the late stamping penalty had not been paid. The Sessions Court held that as the late stamping penalty had not been paid, the letter of guarantee was not “duly stamped” under sec 52, hence not  admissible in evidence and not valid. The claim was consequently dismissed.  On appeal, the High Court Judge Hashim Yeop Sani J agreed with the Sessions Court findings and dismissed the appeal. The appellant appealed to the Federal Court. The Federal Court examined sec 52 of the Act and held that the prohibition of   admissibility of an instrument on account of not being duly stamped is not an absolute prohibition but conditional upon payment of a duty or a penalty, if any, under sec 43 and 47. It was held that the guarantee could be admitted in evidence in accordance with proviso (a) to sec 52 (1) on payment of a penalty of RM25 under sec 47 of the Act.  This would be in consonant with the objective of the Act to impose and collect taxes on legal and commercial documents by compelling those documents to be stamped on pain of being inadmissible. As such, it was held that the proper recourse for the court under sec 51 when facing an unstamped document is to impound the document and to admit them under proviso (a) to sec 52(1) on payment of stamp duty or penalty, if any. Following that the appeal was allowed, judgment was entered against the respondent  with further order that the letter of guarantee is to be impounded and the appellant to pay the penalty RM25 to the Registrar who will send the sum together with the letter of guarantee to the Collector of Stamp Duty for stamping and the stamping in accordance with sec 53 is to be done before the order is drawn.   The same issue came up again before the Supreme Court in  American Express International Banking Corporation v Tan Loon Swan [1992] 1 MLJ 727 in a similar claim but in this case the loan agreement and the letter of guarantee had not been stamped at all.  The plaintiff applied for summary judgment. In order to raise triable issues, the defendant contended that the documents had not been stamped and not admissible in evidence. The Supreme Court followed Malayan Banking Bhd v Agencies Service Bureau Sdn Bhd & Ors and held that in such situation, it is the responsibility of the court under sec 51 to impound the unstamped document and to admit them under proviso (a) to sec 52(1) on payment of stamp duty or penalty, if any. It was further held that the court and counsel appearing before it is under an obligation to draw the court’s attention to its powers under sec 51 and sec 52(1) including its proviso. In short, the non-stamping of the documents concerned does not provide a triable issue.       The issue again came up before the Federal Court  in Liputan Simfoni Sdn Bhd v. Pembangunan Orkid Desa Sdn Bhd [2019] 1 CLJ 183. This time it was concerning a Sale and Purchase Agreement that was not  stamped in accordance with the additional consideration under the agreement. It was contended by the plaintiff that the SPA was void ab initio and tainted with illegality pursuant to sec 24(b) of the Contracts Act 1950. The Court rejected the contention  and held amongst others that: “[125] ….. The compliance with the Stamp Act 1949 and the Real Property Gains Tax 1976 are not the prerequisite for the second SPA to be enforceable. There is no prohibition under the two Acts to preclude the first defendant from acquiring rights to the subject land. The Stamp Act 1949 provides a penalty for breach of its provisions. Similarly, under the Real Property Gains Tax Act 1976 there are penalties for breach of its provision. In addition, it is provided that tax due and payable may be recovered by the Government by civil proceeding as a debt to the Government. The object of the two Acts is to raise revenue. There is therefore no sufficient nexus such as would satisfy the test laid down in Curragh Investment Ltd. The first defendant’s infringement of the two Acts therefore did not prevent it from suing on the contract which is legal.” This position was reaffirmed recently in Nulink Solutions Sdn Bhd v. Mitti Power Cables Sdn Bhd & Ors [2022] 1 LNS 2116. It was contended by the defendants that the agreement therein was void as it was not stamped by referring to sec. 52 (1) of the Stamp Act 1949. The learned Judge rejected the contention and held that the agreement is clearly valid despite the non-stamping, the rights, and obligations of the parties under the agreement

The Employment Act 1955 has been subjected to amendments that will introduce major changes to the operations of the workforce in the country  through the Employment (Amendment) Act 2022 that was gazetted on 10.5.2022. Amongst the key changes Maternity leave – increased to 98 days from 60 days. A pregnant employee may not be terminated except  on grounds of wilful breach of the conditions of service,  misconduct or if the employer is no longer in business. Paternity leave – husbands will be entitled to 7 days of paid leave for every birth beginning from the day of the birth,  regardless of the number of spouses and up to 5 births.   Sexual harassment notice  – employers to display a prominent notice at workplace to educate employees about sexual harassment at workplace. Reduced maximum weekly working hours – the maximum working hours in a week is reduced to 45 hours from 48. Working hours in excess of the 45 hours will be subject to overtime rates. Sick leave and hospitalization leave  – the total sick leaves available to an employee is now treated as distinct and separate from the 60 days hospitalization leave. Flexible working arrangement  – employees may apply for flexible work arrangements that may include change in the work schedule, working days or work location. Employers may approve or reject the application and if rejected, written reasons must be given. Apprenticeship contract – the duration of such contract is limited to 24 months with minimum duration of 6 months. Currently, such contract is defined for a period not less than 2 years. Enforcement of the amendments By way of gazette notification, the Minister of Human Resources has appointed 1.9.2022 as the date on which the amendments to the Act will take effect.   On 15.8.2022, the Employment (Amendment of First Schedule) Order 2022 that sets out the scope of application of the changes to the Employment Act 1955 was gazetted with the changes set to come into force also on 1.9.2022. Currently, the provisions of the Employment Act 1955 applies only to employees with monthly earnings of  RM2,000 and below unless otherwise stated in the Act and to certain classes of employees as listed in paragraph 2 of the 1st Schedule to the Act regardless of their monthly earnings.  For employees outside the scope of the Act, they will be bound by the terms as agreed in their contract of employment with the employer.      Following the Order that was gazetted on 15.8.2022, the Act now applies to all employees. This because the definition of “employee”  has been amended to any person who has entered into a contract of service. There is no longer any limit to the application of the Act. The minimum standard of employment guaranteed under the Act will apply to all employees, as opposed to only those earning less than RM2,000  currently.    The Order however has set out some limit on application of the benefits under the amended Act. Employees earning more than RM4,000 a month are excluded from the statutory benefits under sec. 60(3), 60A(3), 60C(2A), 60D(3), 60D(4) and 60J that covers overtime payment for extra hours or for working on rest days or public holidays or to the termination, lay-off and retirement benefits. In general, those earning more than RM4,000 a month will not be entitled to these benefits. Messrs R. Jayabalan

A Lawyers Newest Resolution Legal productivity is being slammed by a toxic work culture according to a recent survey from across the pond. This may come as no surprise to legal workers here in the United States, as the relentless pressure of law practice often creates a toxic culture in law departments. In many cases, this comes from the management level with toxic bosses and “pie-duckers” rampant in some companies. What can be done? Ref0rm is needed, but the legal profession is not known for embracing change, and when it does, it often comes glacially rather than when needed to ameliorate the real problems at hand.

According to 250 In-House Attorneys, This is a Must Have Legal productivity is being slammed by a toxic work culture according to a recent survey from across the pond. This may come as no surprise to legal workers here in the United States, as the relentless pressure of law practice often creates a toxic culture in law departments. In many cases, this comes from the management level with toxic bosses and “pie-duckers” rampant in some companies. What can be done? Ref0rm is needed, but the legal profession is not known for embracing change, and when it does, it often comes glacially rather than when needed to ameliorate the real problems at hand.