The subject action was initiated by the plaintiff who sought a declaration that the dismissal of the plaintiff was not valid as his suspension under General Order Chapter D, O 35(1) of the Public Officers General Orders (Conduct and Discipline) Chapter D 1980 ('the Orders') was defective and void and in contravention of the natural justice rule of 'audi alterem partem'. The plaintiff worked as an office attendant at the Health Department, District Jelebu. He was confirmed on 1 February 1978. He was arrested on 10 November 1981 and charged under s 326 of the Penal Code but released on bail. On 12 September 1983 he was arrested again under s 3(1) of the Emergency (Public Peace and Prevention of Crimes) Ordinance 1969 ('the ordinance') and detained for two years. On 7 May 1985 he was acquitted of the charge under s 326. He was released on 9 November 1985 from detention but was subjected to a restriction order under s 4A(1) of the ordinance for a year whereby he was required to live in Kerling, Kuala Kubu Bharu, Selangor until 8 November 1986. Meanwhile, on 12 September 1983, the plaintiff was suspended from his job under Chapter D, O 34(2) of the Orders and subsequently dismissed from his job by the Public Services Disciplinary Board of the Jelebu District Health Department. The plaintiff was informed that he was suspended effective on 12 September 1983 vide a letter dated 22 May 1986. On 3 July 1986, the plaintiff was informed that he had been dismissed effective from 12 September 1983.

Held, allowing the plaintiff's application: (1) O 35 did not confer on the disciplinary board the power to suspend an employee as they purported to do vide the 22 May 1986 letter, whereas by virtue of O 34 where a plaintiff is subjected to a detention or restriction order, the disciplinary board could only suspend and not dismiss the employee as they purported to do on 3 July 1983; (2) O 34 and O 35 were especially legislated to provide the procedure and punishment for public servants, like the plaintiff, who are subjected to restriction and detention orders. These provisions ought to be meticulously followed. Compliance with these provisions is all the more essential as the legislation effectively removes a public servant's fundamental right to a reasonable opportunity to be heard which he is otherwise assured of under art 135(2) of the Federal Constitution.

The judgment was delivered in Bahasa Malaysia.

Rajan s/o Nagamuthu lwn Kerajaan Malaysia Civil Suit No 21(22)-255-1987 High Court, Seremban (Faiza Tamby Chik J).

Thankam de Silva v Pentadbir Tanah, Daerah Larut dan Matang Taiping Originating Motion No 25-12-1995 High Court, Taiping (Zulkefli J).

Re Venice Simplon Orient Express Inc [1994] 3 SLR 346 High Court, Singapore (GP Selvam J).

In this case, the applicant company was the registered proprietor of a piece of land held in perpetuity. The land was in the Federal Territory and the applicant applied to the Federal government for sub-division of the land and for conversion to have the express condition relating to the user of the land amended to allow the applicant to put up a hotel for which planning permission had been granted. It also applied to surrender part of the land to government for use as service roads, side and back lanes. The matter was referred to the Land Executive Committee and subsequently the Director of Lands and Mines, Federal Territory, informed the applicant that the application would be approved if certain conditions were complied with. The applicant agreed to all of them except one which was that on surrendering the land, the applicant was to receive back in respect of the part to be retained by him not title in perpetuity but a lease of 99 years. The applicant applied to the court for an order that the approving authority approve its application for sub-division upon the usual terms and conditions. In the High Court Harun J gave judgment for the applicant. The Land Executive Committee thereupon appealed to the Federal Court.

Held: (1) the government had no power to make the applicant give up its freehold title and receive in exchange a 99-year lease. The condition which the applicant objected to did not relate to the permitted development, it was unreasonable and was used for an ulterior object, the object being to bring developed land into line with newly alienated land as to which only leases not titles in perpetuity are granted; (2) the applications should be remitted for reconsideration by the Land Executive Committee on behalf of the Federal Government in the light of the law set out in the judgment of the court; (3) in reconsidering the applications the Land Executive Committee should act fairly and not arbitrarily and should bear in mind that it had already approved the application subject to the other conditions set out therein.

Pengarah Tanah dan Galian, Wilayah Persekutuan v Sri Lempah Enterprise Sdn Bhd [1979] 1 MLJ 135 Federal Court, Kuala Lumpur (Suffian LP, Raja Azlan Shah Ag CJ (Malaya).

In this case the applicant and 183 others had applied for state land in Mersing, Johore. No reply was given for over eight years. Subsequently the applicant found from a search in the Land Registry that a number of pieces of land in the area had been alienated to the first respondent, the Mentri Besar of Johore, and other dignitaries. The applicant alleged that the alienation process was carried out in the Executive Council in the presence and with the participation of the first respondent and four other Executive Council members. It was alleged that approval was given for the alienation of land to themselves and other dignitaries. The applicant took out a motion against the Commissioner of Lands and Mines, the Johore government and the first respondent. Subsequently the first respondent filed a motion to strike out the proceedings and to expunge the affidavit of the applicant. The only affidavit in support of the motion was one sworn by the second respondent, the Commissioner of Lands and Mines. The affidavit in effect challenged the locus standi of the applicant to the relief claimed on the ground that he had not sufficient interest in the matter. The affidavit further alleged that the procedure adopted was wrong in law. The applicant filed a motion for leave to cross-examine the deponent of the affidavit and the first respondent.

Held: (1) although the procedure adopted by the applicant by motion instead of by writ was wrong it merely rendered the proceedings irregular but by no means void. The court may, if it is satisfied that the parties, their counsel and the court will not be seriously embarrassed by the irregularity and that such irregularity will not lead to injustice in any party, proceed to hear and determine the case; (2) although the applicant had failed to intitule his motion and therefore had not complied with the form prescribed under O 8 r 3 of the Rules of the High Court, the respondents were not embarrassed or prejudiced by the slight omission. The court would therefore invoke the powers and exercise the discretion under O 2 and O 92 r 4 of the Rules of the High Court to rule the motion to proceed and be considered on its merits. The applicant in this case was clearly proceeding under s 41 of the Specific Relief Act as an adjunct to prerogative remedies; (3) the applicant had locus standi in this case as he was an aggrieved person and had sufficient interest in the matter; (4) O 38 r 2(3) of the Rules of the High Court does not empower the court to order the attendance for cross-examination of persons other than the deponents. The application to cross-examine the first respondent must therefore be refused, but the second respondent will be ordered to attend and be cross-examined.

Mohamed bin Ismail v Tan Sri Haji Osman Saat & Ors [1982] 2 MLJ 133 High Court, Johore Bahru (Wan Yahya J).

[Annotation: The first respondent appealed to the Federal Court (Raja Azlan Shah CJ (Malaya), Wan Suleiman FJ and Abdoolcader J, 25 May 1982). The appeal was dismissed. See [1982] 2 MLJ 177.]

Minister of Home Affairs v Chu Choon Yong & Anor [1977] 2 MLJ 20 Federal Court, Kuala Lumpur (Suffian LP, Raja Azlan Shah and Wan Suleiman FJJ).

A was the previous owner of land which had been acquired under the Land Acquisition Act (Cap 152). The Collector of Land Revenue took possession of the land in December 1987. Compensation was awarded by the Collector of Land Revenue and was paid into court pending determination of A's appeal. Meanwhile, a summons was taken out against A for unlawful occupation of state land under s 2 of the State Lands Encroachment Act (Cap 315). A applied under s 3 of the Act to have the proceedings transferred from the magistrate's court to the High Court. A alleged, inter alia, that the acquisition was made in bad faith, in that it was purportedly for 'urban redevelopment' whereas the real intention was the preservation and conservation of the premises.

Held, dismissing the application: (1) in order for the case to be transferred, it had to be shown that A had a bona fide claim to title; (2) once the Collector of Land Revenue has taken possession of land acquired under the Land Acquisition Act title vests in the State. The former owner ceases to have an interest in the land. He only has an interest in compensation; (3) urban redevelopment in the context of the area being developed included conserving old buildings in that area. Conservation and preservation of historic and heritage buildings clearly comes within 'urban redevelopment'. A therefore failed to establish that the acquisition was made in bad faith; (4) since the land in question had vested in the State, A no longer had any bona fide claim to title and the application was therefore dismissed.

Basco Enterprises (Pte) Ltd v Soh Siong Wai [1989] 2 MLJ 98 High Court, Singapore (Wee Chong Jin CJ).

The Datuk Bandar of Kuala Lumpur received an application for the recovery of possession of a property for development purposes under s 19 of the Control of Rent Act 1966. One Mr Wan Kat Few who was the Timbalan Pengarah, Jabatan Penilaian dan Pengurusan Harta Dewan Bandaraya Kuala Lumpur exercised the powers of Datuk Bandar in respect of the application. A meeting was therefore held during which Mr Wan made the order applied for. The applicant, who was a subtenant of the property, attended the meeting with his counsel and objected to the order. He argued that as the Perwakilan Kuasa from Datuk Bandar to Mr Wan was not made by the Minister, it was invalid. Mr Wan had therefore acted without jurisdiction and the order he made was therefore void ab initio. The applicant applied for an order of certiorari to quash the order made.

Held, dismissing the application: (1) by s 4(6) of the Federal Capital Act 1960, the powers and duties of the Datuk Bandar were validly delegated to Mr Wan; (2) following the binding authorities of Mohamed Shariff Ashraff v Commissioner for Federal Capital Kuala Lumpur and Tan Hee Lock v Commissioner for Federal Capital, the decision of the Datuk Bandar was not amenable to certiorari; (3) even if the rules of natural justice were applicable, there had been no breach of the same by the Datuk Bandar. His duty under s 19 is to satisfy himself that the requirements therein are satisfied. Once he is so satisfied, he is bound to make the order. At the inquiry, the applicant's counsel had not raised any objections or challenged that the requirements under the provision were satisfied; (4) that the Datuk Bandar had no reason for his decision where there was no duty to give them did not mean that it was irrational. The only significance is that he cannot complain if the facts and circumstances point overwhelmingly to a different decision and the court draws the inference that he had no rational reason for his decision.

Prithipal Singh @ Kirpal Singh s/o Wadhawa Singh v Datuk Bandar, Kuala Lumpur (Golden Arches Restaurant Sdn Bhd, Interveners) [1993] 2 MLJ 390 High Court, Kuala Lumpur (Wan Adnan J).

Liew Ah Kim v Minister for Home Affairs, Malaysia [1992] 2 CLJ 1029 High Court, Kuala Lumpur (Eusoff Chin J).

The intervener is the owner of certain premises subject to the Control of Rent Act 1966 ('the premises') and the appellant is one of the subtenants of the premises. In February 1991 the intervener had submitted an application under s 19 of the Control of Rent Act for recovery of possession of the premises for development purposes, which application was heard and granted by the Deputy Director of the Valuation Department in exercise of the functions of the Dato Bandar, Kuala Lumpur (Commissioner of the City of Kuala Lumpur) delegated to him under s 4(6) of the Federal Capital Act 1960. The appellant made no objections to the application but subsequently, he applied for an order of certiorari to quash the decision of the Dato Bandar and on dismissal of his application in the High Court, appealed to the Supreme Court. As at all material times the office of the Dato Bandar was vacant, it was contended by counsel for the appellant that by virtue of s 4(7) of the Federal Capital Act 1960 the Secretary General of the Ministry of the Federal Territory or other public officer must be authorized by the Minister to carry out the functions and exercise the powers of the Dato Bandar. There was no evidence of any such authorization and thus the purported delegation of powers by the Secretary General to the Deputy Director of Valuation was void and of no effect. It was argued further that the wording of the instruments of delegation of powers was defective. The issue also arose as to whether the order of the Dato Bandar was subject to review by the court since s 19(12) of the Control of Rent Act makes such order final and conclusive.

Held, dismissing the appeal: (1) normally, to determine the intent of the law the court would look at a sentence from a purely grammatical point of view so that in construing a statute the court will disregard a punctuation or will repunctuate it if necessary in order to arrive at the true purpose and natural meaning of the words employed; (2) Parliament had deliberately inserted a comma after the words 'the Secretary General of the Ministry of Federal Territory' in s 4(7) of the Federal Capital Act, the significance of which cannot be ignored as with the comma the words 'Secretary General' and 'public officer' must be read disjunctively; (3) therefore, under s 4(7) of the Federal Capital Act, whenever the office of the Dato Bandar is vacant, the Secretary General of the Ministry of the Federal Territory shall automatically carry out the functions and exercise the powers of the Dato Bandar; (4) as the Federal Capital Act does not require that the instrument of delegation must be in any special form, it is sufficient if words used therein are expressed in clear language. The contention of counsel for the appellant that the wording of the instrument of delegation was defective was unsustainable. Consequently, any decision of the Deputy Director of Valuation in exercise of the delegated power was the decision of the Dato Bandar; (5) s 19(12) of the Control of Rent Act 1966 did not preclude the court from entertaining an application for an order of certiorari. Thus when the present application was made to the court, the court had to determine whether the order made by the Dato Bandar was final by determining that (a) the person making the order had the jurisdiction to make it, (b) he had complied with the provisions of the law, and (c) where his order was likely to impose any liability on, or affect the right of any person, that person had been given an opportunity to be heard. In this case the Deputy Director of Valuation had the jurisdiction to determine the application under s 19 of the Control of Rent Act and in doing so he had complied with the provision of that section as well as given the appellant the opportunity to be heard.

Prithipal Singh v Dato Bandar, Kuala Lumpur (Golden Arches Restaurant Sdn Bhd, Intervener) [1993] 3 MLJ 336 Supreme Court, Malaysia (Abdul Hamid Omar LP, Eusoff Chin and Peh Swee Chin SCJJ).

D2, the Co-operative Central Bank Ltd, became insolvent in 1986 and was unable to meet its deposit liability. Acting on the advice of the Advisory Panel under reg 10 of the Essential (Protection of Depositors) Regulations 1986, D1 (Bank Negara) exercised its powers under reg 9(1)(b) of the 1986 Regulations to assume control of D2 having been first satisfied under reg 9(2) that D2 was unable or was likely to become unable to meets its deposit liability to any extent. This course of action was considered necessary by D1 to protect the interests of the depositors and to facilitate investigations by D1 into the affairs of D2. Subsequently, D1 applied to the High Court for the appointment of a receiver to manage the affairs and property of D2 after being advised by the Advisory Panel under reg 10. P opposed the application alleging that D1 had acted in bad faith in bringing the action. It was also contended, inter alia, that the 1986 Regulations were invalid or ultra vires the Emergency (Essential Powers) Act 1979. Counsel for P also contended that D1 should have acted under reg 9(1)(e) and not reg 9(1)(c) of the 1986 Regulations. Having considered all the arguments of P, the learned judge allowed the application of D1 that receivers be appointed to manage the affairs and property of D2 without giving security until further order. From the decision of the learned judge, P appealed to the Supreme Court.

Held, dismissing the appeal: (1) in the instant case, the 1986 Regulations were not repugnant to the Emergency (Essential Powers) Act 1979 nor were they uncertain. The 1986 Regulations could be invoked for the protection of the depositors of D2 provided that D1 was satisfied that D2 was a deposit-taker as defined in the 1986 Regulations and that D2 was unable or was likely to become unable to meet its deposit liability to any extent. D1 should also have the prior advice of the Advisory Panel established under s 31A(2) of the Central Bank of Malaysia Ordinance 1958. In the instant case, all the necessary statutory requirements had been complied with by D1; (2) the 1986 Regulations were not invalid or ultra vires just because they authorized the taking, disposition or acquisition of any property and/or undertaking of a deposit-taker not on behalf of the Government of Malaysia. Being in the nature of emergency powers, the 1986 Regulations have effect under s 2(4) of the Emergency (Essential Powers) Act 1979 notwithstanding anything therein inconsistent with any written law, including the Federal Constitution or the Constitution of any State, (3) in the instant case, whatever action D1 chose to take under reg 9(1) was entirely at its discretion. The 1986 Regulations allowed D1 to take whatever action it considers most appropriate in the circumstances for the protection of the depositors of D2. It could not be denied that in the instant case, there was ample evidence of the need to invoke the 1986 Regulations.

Jaffnese Co-operative Society Ltd & Ors v Bank Negara Malaysia & Anor [1989] 3 MLJ 150 Supreme Court, Malaysia (Abdul Hamid LP, Hashim Yeop A Sani CJ (Malaya).

P had obtained judgment in default against D, a deposit-taking company, and caused to be issued a writ of seizure and sale. By the time a summons-for-directions of sale of the lands in question was filed, other judgment creditors had filed their respective writs of seizure and sale. Bank Negara Malaysia ('BNM') applied to intervene in these execution proceedings and sought a stay of execution of judgment under reg 7 of the Essential (Protection of Depositors) Regulations 1986 until the completion of investigation by them into the affairs of D. Counsel for BNM submitted that BNM was charged with the duty of protecting the depositors of D and that they had already filed a petition for winding up of D to ensure a rateable distribution of the assets or their proceedings among all depositors and to ensure that the said investigation was not frustrated. Counsel for D submitted that BNM had no locus standi to intervene in the matter as the Regulations did not give BNM the power to stop the execution.

Held, granting BNM the stay of execution: (1) under the Regulation, BNM is given the optimum and omnibus power to investigate and control any person or body engaged in the business of deposit-taking which is defined as the acceptance of any money or deposit or loan by a borrower from more than ten persons etc. In the instant case, if the execution proceedings were not stayed, BNM would be frustrated in their duty and functions under the Regulations as their rights against D thereunder would be directly affected by the order made on the summons-for-directions for sale in regard to the sale of D's lands. For the reasons stated above, BNM had locus standi to intervene in the proceedings; (2) in the instant case, the court had jurisdiction to grant a stay of execution of the judgment obtained by P. As a petition for winding up had already been presented against D so that s 224 of the Companies Act 1965 came into operation, the order to stay granted was really declaratory of the effect of the section; (3) the learned judge, accordingly, allowed BNM's application to intervene and granted a stay of execution of the judgment obtained by P.

Nge Siew Noon v Sitiawan Credit Corporation Sdn Bhd; Negara Malaysia (Intervener) [1989] 1 MLJ 355 High Court, Ipoh (Peh Swee Chin J).

Lim Hai Sun v Officer-in-charge, Drug Rehabilitation Centre, Kuching & Anor [1992] 3 CLJ 1602 High Court, Miri (Richard Malanjum JC).

Chua Lee Huat & other applications v Timbalan Menteri Hal-Ehwal Dalam Negeri, Malaysia & Anor [1997] 2 MLJ 395 High Court, Kangar (Vincent Ng J).

X was dismissed from his job by P2, his employer, as a result of an alleged adverse publicity concerning him (X) which was said to have damaged the image of P2. The alleged adverse publicity arose from certain allegations of misconduct made against X. D, the trade union of which X was a member, took up the matter of the dismissal with P2 in an attempt to obtain X's reinstatement in his former job. This proved futile and D proceeded to report the dispute to the Industrial Relations Department in accordance with the provisions of the Industrial Relations Act 1967. The Director-General of Industrial Relations notified KP1, the Minister of Labour, under s 18 of the Act that there was no likelihood of the dispute being settled. P1 decided not to refer the dispute to the Industrial Court as he was of the opinion that it was not expedient to do so. D then applied for an order of certiorari to quash the decision of P1 and an order of mandamus to direct P1 to refer the dispute to the Industrial Court under s 26(2) of the Act. The High Court allowed D's application holding that P1 had acted in excess of jurisdiction when he refused to refer the dispute to the Industrial Court under s 26(2). The court was of the view that P1 had usurped the functions of the Industrial Court in refusing to refer the dispute to it. Dissatisfied with the decision of the High Court, P appealed to the Supreme Court.

Held, dismissing the appeal: (1) in this case, the High Court was wrong in holding that P1, in refusing to refer the dispute to the Industrial Court, had usurped the functions of the Industrial Court. P1 may well refuse to refer a dispute to the Industrial Court on proper grounds and in such a case he could not be said to have adjudicated upon matters which are entrusted to the Industrial Court. The proper question to be asked is whether P1, in the exercise of his discretion, had acted according to law; (2) it could not be argued that Parliament, by conferring a discretion on P1 under s 26(2) of the Act without any express limitations had given P1 a subjective power. The courts have developed a broad or extended doctrine of ultra vires whereby they may review action taken in the exercise of wide discretionary powers. The facts upon which P1 had expressed himself as satisfied, such that it was not expedient for him to refer the dispute to the Industrial Court must be examined so as to determine whether P1 had exercised his discretion according to law; (3) in this case, P1 had completely ignored or had not given sufficient weight to the substantive allegations of misconduct against X, his public denial of the allegations made against him and the report submitted by D on behalf of X. If P1 had taken these relevant matters into consideration, he might have come to a different conclusion. It could be said, therefore, that in arriving at his decision, P1 had acted upon an incorrect factual basis, thus vitiating the decision. As a result, P's appeal was dismissed.

Minister of Labour, Malaysia v National Union of Journalists Malaysia and another appeal [1991] 1 MLJ 24 Supreme Court, Malaysia (Hashim Yeop A Sani CJ (Malaya).

A was first employed by D2 as an accountant. Subsequently A was promoted to be the general manager and the head of D2's gaming division. D2 then issued a letter to A terminating his employment on the ground that A's employment had become redundant. A appealed to D2 and negotiated this matter with D2. D2 offered alternative employment to A which was refused on the ground that the alternative employment was not the same as promised by D2 during the negotiations. A made representations for reinstatement to the Director General for Industrial Relations who made a report to the minister. The minister subsequently decided not to refer A's representation to the Industrial Court. No reasons were given for the minister's decision. A applied to the High Court for a certiorari to quash the minister's decision and for a mandamus directing the minister to reconsider his representation. A argued that his employment had not become redundant because the gaming division was an important one which had brought in profits for D2. A further alleged that D2 used the reason that his employment had become redundant as an excuse to terminate his employment because A was no longer wanted to work for D2.

Held, allowing the application: (1) the minister is not required to give reasons why a representation is not referred to the Industrial Court. This, however, does not mean the minister is precluded from giving reasons for his decision. If a minister gives reasons for his decision, this will assist the court in ascertaining whether the minister has considered relevant matters and whether he has rejected irrelevant considerations. If no reasons are given for the minister's decision, the court and the interested parties are left to guess which are the relevant facts and which are not; (2) D2's letter which terminated A's employment contravened regs 20 to 24 of the Code of Conduct for Industrial Harmony which was issued by the minister under s 30(5) of the Industrial Relations Act 1967. This was because D2 did not offer any alternative employment to A in that letter; (3) if the relevant facts in this case had been considered by the minister, the minister would have come to a different decision. Since the relevant facts in this case had not been considered by the minister, his decision would be vitiated.

Chan Meng Yuen v Menteri Buruh, Malaysia & Anor Originating Motion No R8-32-158-1988 High Court, Kuala Lumpur (Eusoff Chin J).

X executed charges over his land in D's favour to secure loans from D. The charges were registered. Subsequently in 1986, A received a letter from the Inland Revenue Department requesting him to enter a registrar's caveat under s 320(1)(ba) of the National Land Code 1965 on the ground that X owed income tax to the Inland Revenue Department. A thus entered a registrar's caveat against X's land. In 1988, D obtained an order for sale of X's land to satisfy the sum due from X to D. D then received a letter from A confirming the entry of the registrar's caveat. D appealed to the High Court against A's decision to enter a registrar's caveat. The High Court allowed D's appeal and ordered the cancellation of the registrar's caveat on the ground that A had failed to take into proper consideration the fact that once there were D's charges in respect of X's land, the registrar's caveat could not be 'necessary or desirable' for securing that X's land would be available to satisfy the debt due to the Federation. A appealed to the Supreme Court.

Held, dismissing the appeal: (1) to enable A to decide whether it was 'necessary or desirable' to secure that X's land would be available to satisfy the debt due to the Federation, A must find out the market value of X's land, the amount of debt due on D's registered charges and the amount of debt due to the Federation. If the debt due on D's registered charges exceeds the market value of X's land, X's land would not be available to satisfy the debt due to the Federation; (2) A had failed to take into account all these relevant considerations before he decided to enter the registrar's caveat. A merely relied on the letter from the Inland Revenue Department. A had therefore not exercised his discretion according to s 320(1)(ba) of the Code and had acted ultra vires.

Pendaftar Hakmilik Negeri Kedah v Oversea-Chinese Banking Corp Ltd [1991] 2 MLJ 177 Supreme Court, Malaysia (Mohamed Azmi, Gunn Chit Tuan and Jemuri Serjan SCJJ).

Dr Benjamin George & Ors v Majlis Perbandaran Ampang Jaya and other applications [1995] 3 MLJ 665 High Court, Shah Alam (Faiza Tamby Chik J).

In this case, the respondent had served a notice of a proposed amendment of assessment on a property described as a columbarium. The land on which the columbarium was erected was a cemetery for members of the Hokkien community in Penang. A crematorium had also been erected on the land. Both the cemetery grounds and the crematorium had been exempted from assessment. But in respect of the columbarium, the respondent turned down the objection of the appellant as did the High Court on appeal therefrom. The appellant appealed to the Federal Court.

Held, allowing the appeal: (1) the keeping of urns containing the cremated ashes of the dead as a form of honour or regard for the mortal remains of the dead was a form of religious worship; (2) the columbarium in this case was not on the facts used for pecuniary profit and the State Authority has a discretion to exempt it from rates; (3) in this case, the State Authority had refused to exercise its discretion because of the wrong interpretation given that a columbarium is not a place used exclusively for religious worship; (4) the matter should therefore be referred back to the State Authority for its decision in all the circumstances of the case whether or not to extend the discretion which is available to the columbarium.

United Hokkien Cemetries, Penang v The Board, Majlis Perbandaran Pulau Pinang [1979] 2 MLJ 121 Federal Court, Penang (Raja Azlan Shah, Chang Min Tat and Syed Othman FJJ).

The three applicants are detained under detention orders made under s 6(1) read with s 11B of the Dangerous Drugs (Special Preventive Measures) Act 1985 (Act 316) ('the Act') and have applied for writs of habeas corpus. As a result of the Supreme Court decision in Tan Hoon Seng v Minister for Home Affairs, Malaysia & Anor [1990] 1 MLJ 171, which decided that it is not permissible under s 6(1) of the Act for the minister to specify a different date from the date of the order for the commencement of the detention, the orders affecting the applicants in this case were rendered defective. The minister then revoked the orders by reference to s 11B(1) and by reference to sub-s (2), he made fresh orders in respect of each of the applicants. Counsel for the applicants sought to impugn the validity of the revocation and the minister's powers under s 11B(2) to make fresh orders.

Held, dismissing the applications: (1) a fortiori, the detention orders in this case. The argument that the initial orders were null and void, in the light of the Supreme Court decision, and the minister therefore had no power to revoke the orders or to issue fresh orders, was rejected; (2) the minister's power to revoke is available to him if he deems it just or fit to do so and the Act does not fetter the discretion so given. This discretion is not open to question by the court; (3) the power to revoke should not be construed restrictively for the effect of revocation is to set the subject free; (4) it is clear from s 11B(1) that the minister may revoke any detention order made under sub-s (1) of s 6. As long as a detention order is extant, the minister has a right to revoke it. The argument that the initial orders must be taken to be invalid and there could be no effective revocation for s 11B(2) to come into operation for the minister to make fresh orders was rejected; (5) looking at ss 6(1) and 11A with s 11B(2), it becomes clear that the reference to sub-s (1) in s 11B(2) means sub-s (1) of s 6 or sub-s (1) of s 11A or both. Any fresh order made or fresh direction given pursuant to s 11B(2) must be an order or direction of a kind that is allowable under ss 6(1) and 11A(1) respectively; (6) the investigation and report submitted under s 6(1) and the inquiry and its report submitted under s 6(1)(b) of the initial orders remain intact and valid. This is because s 11B(2) provides that the revocation shall not affect the validity of the order or direction before its revocation or to anything done thereunder. The fresh orders, therefore, need not be preceded by a fresh police investigation or police inquiry as required under s 6(1); (7) the Supreme Court in Tan Hoon Seng had granted the relief sought by the appellants but there was no order declaring the detention orders to be void. The detention orders therefore remained extant;it would be futile to insist on the motions of the investigation and inquiry in each case being repeated simply because the resulting detention order was technically defective.

Chang Ngo v Menteri Hal Ehwal Dalam Negeri, Malaysia & Anor and other applications [1990] 2 MLJ 221 High Court, Muar (Richard Talalla JC).

Article 5 does not confer on the citizen a right to a passport. The government has a discretion whether to issue or not to issue, delay the issue of or withdraw a passport, for instance if criminal charges are pending against the applicant. The exercise of this discretion is subject to review by a court of law, as in the case of other discretionary powers.

Government of Malaysia & Ors v Loh Wai Kong [1979] 2 MLJ 33 Federal Court, Kuala Lumpur (Suffian LP, Raja Azlan Shah, Wan Suleiman, Chang Min Tat and Syed Othman FJJ).

Re Sarjit Singh Khaira [1995] 3 MLJ 112 High Court, Kuching (Abdul Kadir Sulaiman J).

Hngh Ah Leong v Inspector-General of Police & Ors Civil Appeal No R8 21-8-87 High Court, Kuala Lumpur (Abu Mansor J).

A was an employee of TAS, a statutory board. He was accused of stealing from a jackpot machine in the board's recreation club. The police declined to prosecute. However, A was informed that disciplinary proceedings under reg 4 of the Telecommunications Authority of Singapore (Disciplinary Proceedings) Regulations 1983 had been instituted. Two charges were preferred against him and he submitted a written statement in his defence. A committee of inquiry was appointed to inquire into the matter and report to the staff committee of TAS. The inquiry committee reported that the evidence against A was not conclusive and recommended that he be given the benefit of the doubt. However, the staff committee decided to dismiss A. A applied for an order of certiorari to quash the staff committee's decision and an order of mandamus to compel TAS to reinstate him.

Held, dismissing the application: (1) the committee of inquiry and the staff committee had different functions. The committee of inquiry's function was to investigate and report to the staff committee. They were not a judicial or quasi-judicial body. The staff committee's function was to decide whether the officer should be punished; (2) the staff committee was not bound to follow the recommendation of the committee of inquiry. There was evidence which supported their decision and it was not a decision so unreasonable that no reasonable committee would have reached it; (3) alleged insufficiency of evidence is not a ground on which a court exercising supervisory jurisdiction will interfere with the decision of an inferior tribunal.

Re Yap George [1992] 1 SLR 488 High Court, Singapore (Thean J).

Parliament had resolved that the appellant was guilty of contempt of the Committee of Privileges and of Parliament by his publication of five offending newsletters relating to certain proceedings of the committee. He was fined $5,000 for each of the offending newsletters. The Attorney General sued the appellant on behalf of the government of Singapore for the total sum of $25,000 and obtained summary judgment by an order of the Registrar of the Subordinate Courts. The appellant appealed to the High Court. His defences were: (a) that the finding by the Committee of Privileges and of Parliament, that the publication of the five offending newsletters by the appellant amounted to contempt of the committee or of Parliament, was wrong in law; (b) that Parliament acted in excess of its jurisdiction in imposing the fines for contempt; and (c) that the Committee of Privileges and Parliament had failed to observe the rules of natural justice.

Held: the courts would not interfere on a matter of domestic discipline unless there was a breach of the rules of natural justice. In the present case, there had been no breach of the rules of natural justice. The appellant was given the right to be heard when the Chairman of the Committee of Privileges sent the complaint to the appellant for his explanation and the appellant submitted his written explanation in a letter. The rules of natural justice do not require that a hearing must be an oral hearing.

JB Jeyaretnam v Attorney General of Singapore [1988] 3 MLJ 465 High Court, Singapore (Chua J).

[Annotation: The appellant further appealed to the Court of Appeal vide Civil Appeal No 66 of 1987. The Court of Appeal comprising Thean, Chan Sek Keong and Rajah JJ dismissed the appeal. See [1989] 1 MLJ 137.]

Minister of Labour, Malaysia v National Union of Journalists Malaysia and another appeal [1991] 1 MLJ 24 Supreme Court, Malaysia (Hashim Yeop A Sani CJ (Malaya).

D had lodged a complaint to the Director-General of Industrial Relations pursuant to s 20(1) of the Industrial Relations Act 1967 in regard to the termination of his appointment as general manager of KBB Bhd. The Director-General notified P, the Minister of Labour, who, after considering the matter, did not refer the complaint to the Industrial Court. The High Court granted D an order of certiorari to quash the decision of P. P appealed to the Supreme Court contending that he had correctly exercised his discretion not to refer the matter to the Industrial Court.

Held, allowing the appeal: (1) there is no question that the power of the Minister under s 20(3) of the Act is wide. The Minister is conferred a wide discretion whether to refer or not to refer a dispute to the Industrial Court depending on the facts of each case provided that he has acted bona fide without any improper motive and has not taken into consideration extraneous or irrelevant matters. The discretion should not be exercised so as to frustrate the object of the statute itself; (2) in the instant case, the Minister in his letter to D in fact gave the reason why he did not refer the matter to the Industrial Court. The Minister had considered the matter not a fit and proper one to be referred. As the Minister had exercised his discretion without an improper motive, the exercise of discretion could not be interfered with by the court.

Minister of Labour & Anor v Lie Seng Fatt [1990] 2 MLJ 9 Supreme Court, Malaysia (Hashim Yeop A Sani CJ (Malaya).

In this case, the registered proprietor of land in Malacca had executed on 3 August 1979 a memorandum of transfer in favour of the appellants in specified shares. On 18 December 1979 the memorandum of transfer and a discharge of a charge were transmitted to the respondent for registration together with the relevant issue document of title. At that time the register disclosed that the title was clear and presentation of the instruments was entered as having been made on 27 December 1979. On 2 January 1980, the second appellant executed a memorandum of transfer of his share in the land to the first appellant. This transfer and a charge executed on 18 January 1980 were presented for registration on 23 January 1980. On 1 February 1980, the solicitors for the appellants were informed by their agents that the two instruments had been rejected by the respondent on 31 January 1980. On 6 February 1980, the appellant's solicitors received a letter from the respondent dated 29 January 1980 rejecting the transfer and discharge presented for registration on 27 December 1979. A further search was made and this revealed an undated and unsigned note to the effect that Form 6A (a notice of demand for arrears of rent) was issued on 18 September 1978 and registered on 25 September 1978. A notification in Form 8A was published in the Gazette on 31 January 1980. It appeared that the registered proprietor applied to the State Authority on 26 June 1979 for the annulment of the forfeiture but this was rejected on 12 December 1979. On 9 February 1980, the respondent entered a registrar's caveat against the land. The appellants appealed to the High Court in respect of the transfer and discharge and the subsequent transfer and charge against the refusal of the respondent to register the instruments presented. They also claimed relief by way of cancellation of any endorsement on the register in respect of the purported forfeiture and restriction of transactions. The learned trial judge held that the respondent's refusal to register the instruments presented was wrong and he made declarations to that effect. However he held that the Collector had since completed the forfeiture and the land had become State land, so that the order sought by the appellants to set aside the forfeiture amounted in effect to proceedings for the recovery of land from the State Authority and this was debarred by s 29 of the Government Proceedings Ordinance 1956 (Ord 58/1956). The appellants appealed.

Held: (1) the Collector of Land Revenue had failed to comply with the mandatory provisions of ss 97(2) and 100 of the National Land Code 1965 (Act 56/1965) and therefore the purported forfeiture of the land was invalid and must be set aside; (2) the learned judge was correct in holding that the respondent was wrong in law in having refused to register the instruments presented by the appellants; (3) the registrar's caveat entered should be expunged and the respondent be directed to register the instruments presented by the appellants.

Pow Hing & Anor v Registrar of Titles, Malacca [1981] 1 MLJ 155 Federal Court, Kuala Lumpur (Raja Azlan Shah Ag LP, Abdul Hamid FJ and Abdoolcader J).

A was a Malaysian permanent resident in Singapore. She first came to Singapore in 1973 and worked with various companies and organizations in Singapore. In 1985 she was informed by a routine letter from the Professionals Information and Placement Service that as she had been a permanent resident for more than five years, she was eligible to apply for Singapore citizenship. In January 1986 an officer of the Citizenship Registry wrote to her inviting her to call at the registry to determine her eligibility to apply for citizenship. A did not respond to this letter. According to A, nothing untoward occurred to her until 5 September 1986, when suddenly and without prior warning she was informed by the Controller of Immigration that her re-entry permit and employment pass had been cancelled. An appeal was lodged with the minister. Her appeal was rejected. The letter stated simply that 'the minister has considered your appeal and decided that the decision should stand'. No other reasons were given. A applied for an order of certiorari to quash the decision of the minister and the controller. In an affidavit filed in the action, it was stated on behalf of the minister that the minister had received information about A's activities from a 'reliable source'. It was also stated that the information if disclosed would endanger the confidentiality of the source and that would not be in the public interest.

Held, dismissing the application: (1) the main argument on behalf of A was that the facts attracted the application of the principle of legitimate expectation. It was submitted that A had a legitimate expectation of being allowed to stay in Singapore until the expiry of her re-entry permit. Her legitimate expectation of being allowed to stay was reinforced by the fact that as a permanent resident for more than five years, she was eligible to apply for citizenship. The learned judge rejected these submissions on the ground that no promise whatsoever had been made to A that she would be entitled to stay in Singapore; (2) an alien has no right to enter a country except by leave and the minister can refuse leave without giving any reason. An alien, if allowed to enter, has no right to stay and no legitimate expectation of being allowed to stay longer than the permitted period; (3) the rules of natural justice do not apply to aliens in the administration of immigration laws. For these rules to apply, there must be specific legislation. There is no such legislation in Singapore; (4) Parliament has provided nevertheless for an appeal to the minister. The minister had carefully considered A's appeal and rejected it. Neither at common law nor under the Act was the minister obliged to give reasons for his decision; (5) it is for the minister to decide whether it is in the public interest that information should be disclosed; (6) the burden was on A to make out her case against the minister. She failed to show that the minister had acted unreasonably or irrationally. The application, accordingly, was dismissed.

Re Siah Mooi Guat [1988] 3 MLJ 448 High Court, Singapore (Sinnathuray J).

Where there are overlapping powers the choice of proceeding under one of the other statutory or constitutional provisions is plainly a matter of executive discretion and that the exercise of such discretion is not justiciable unless bad faith is shown. The scope of judicial review does not extend to this court purporting to act in an appellate capacity and assessing the sufficiency of the evidence before the Minister for Home Affairs. He had acted within his jurisdiction and it was not for this court to substitute its views on what should be the effect of the evidence before him.

Mohan Singh v Attorney General [1987] 2 MLJ 595 High Court, Singapore (Lai Kew Chai J).

This was an application for an order under s 45 of the Specific Relief Enactment (Cap 5) directed to the respondent who was the Assistant Food Controller of Lower Perak to withdraw the cancellation of the applicants' retail licences issued in February 1947. The applicants were seven traders carrying on business as general merchants or sundry goods shop keepers. They were granted by the respondent on various dates in February 1947 licences in identical form to deal in foodstuffs retail, and to sell and store such foodstuffs at their respective premises. The licences were purported to be given by the food controller and were signed by the respondent. They were limited to expire on 31 December 1947. At various dates on or between 12 and 18 March 1947 they severally received a letter from the respondent again in identical terms informing each that the licence was withdrawn. No notice of objection to their licences or of a proposal to withdraw was given.

Held: (1) GN 80 of 1945 which purports to delegate certain powers to the assistant food controller does not delegate to him powers other than executive powers which can be exercised under the direction of a superior; (2) although s 12(2) of the Food Control Proclamation gives power to the controller to revoke a licence 'without any reason assigned', the food controller must in doing so exercise his discretion properly and fairly; (3) the cancellation of the licences was illegal and an order under s 45 of the Specific Relief Enactment should issue.

Krishnasamy & Ors v Madden [1947] MLJ 182 High Court, Ipoh (Evans J).

This was an application under s 375 of Criminal Procedure Code (Cap 132) for a writ of habeas corpus. The court granted an order nisi directing the Minister of Home Affairs and the Commissioner of Police, Singapore, to show cause why the applicant should not be set at liberty. In their affidavits they stated that the applicant was detained under the Criminal Law (Temporary Provisions) Ordinance 1955. It was contended for the applicant (1) that the two advisory committees were not properly appointed in that there was no official notice of their appointment in the Government gazette; (2) that there was no provision in the ordinance for the appointment of a secretary; (3) that r 3 of the Criminal Law (Advisory Committee) Rules 1958 dealing with the constitution of the advisory committee was ultra vires the ordinance r 3 of the ordinance provides that every advisory committee should consist of a chairman, an alternate chairman and a panel of members. The applicant contended that once an advisory committee has been appointed, the whole body must meet for the purpose of deciding any matter referred to them under s 48(4) and that there was no sufficient reference to the advisory committee within the meaning of s 48.

Held: (1) there is no statutory provision for public notification of these advisory committees. Para 4 of the minister's affidavit has set out the name of the chairman of each committee and the name of the secretary, and para 5 mentions that the members of the advisory committees are averse to having their identities known. In view of this, there was no reason to question the validity of the appointments of both committees; (2) although the only mention of a secretary in the relevant legislation is in the schedule attached to the Criminal Law (Advisory Committee) Rules 1958, such an appointment far from being in conflict with the ordinance, is in fact necessary for the efficient working of the committees; (3) had r 3(3) provided that the advisory committee could be composed of a chairman, or any member of the committee, sitting alone, that would have been contrary to the spirit and manifest intention of the ordinance and therefore ultra vires, for s 51 specifically provides that each of the advisory committees must consist of not less than two persons. The fact that there were more than two persons of whom three would constitute the body for the hearing of the matter is not unreasonable or contrary to justice. Rule 3 is therefore not ultra vires; (4) the term 'refer' is not a term of art. It means no more than that the advisory committee should have their attention drawn by the minister to the matter in question. A reference by the minister to the secretary of an advisory committee is a sufficient compliance with the requirements of the ordinance, for the secretary is a recognized channel prescribed by normal administrative machinery.

Re Lee Yew Seng [1960] MLJ 37 High Court, Singapore (Rose CJ).

[Annotation: See also Ex parte Johannes Choeldi & Ors [1960] MLJ 184 in which an action for a writ of habeas corpus succeeded for the reason that the Controller of Immigration had stated incorrect grounds in issuing a removal order in respect of detained immigrants.]

The respondent commenced employment with the Hong Leong Group in Malaysia ('the appellant') in 1977, and had since worked in various subsidiary companies within the group with distinguished performance. However, in February 1990, the respondent was charged with: (i) entering into negotiations for the sale and purchase of certain land without informing the appellant that his brother had an interest in the transaction as broker; and (ii) engaging in the business of Asia-Pacific Advisory Group Sdn Bhd and Finnova Corp Sdn Bhd without obtaining the prior approval of the board of directors, thus breaching the terms and conditions of employment contained in the group personnel manual ('the manual'). In response to these charges, the respondent explained, inter alia, that he thought disclosure regarding his brother's interest was unnecessary, as no brokerage commission came from the appellant, and that he only had a RM1 share interest in Asia-Pacific Advisory Group Sdn Bhd. In a subsequent affidavit filed in proceedings in the High Court, the respondent had also explained that he did not receive any salary as an honorary adviser to Finnova Corp Sdn Bhd, which was a family concern. There was also dispute as to whether the manual, which was issued after the respondent joined the appellant, was binding upon the respondent. The respondent was dismissed after a domestic inquiry was held by the appellant. Aggrieved by his dismissal, the respondent lodged a complaint with the Director General for Industrial Relations under s 20(1) of the Industrial Relations Act 1967 ('the Act'). The respondent wrote to the Director General, claiming that his dismissal was the result of the vindictive act of a Mr Roger Tan, ie the group managing director of the appellant. The Director General, who convened a conciliatory meeting pursuant to s 20(2) of the Act, found that no settlement could be reached, and he accordingly notified the Minister of Human Resources ('the Minister') so. By letter dated 13 November 1990, the Minister acting under s 20(3) of the Act, informed the respondent that he had decided not to refer the matter of his dismissal to the Industrial Court ('the Minister's decision'). The respondent then took out an application for an order of certiorari to quash the Minister's decision, and for an order of mandamus to compel the Minister to refer the dispute to the Industrial Court. The High Court granted the application. The appellant and the Minister appealed, contending, inter alia, that: (i) the Minister did not make a decision in the legal sense when he exercised his discretion under s 20(3); (ii) the Minister's exercise of discretion was safe from judicial review as long as he did not commit an 'Anisminic error' or, his decision was not affected by 'Wednesbury unreasonableness'; (iii) the court was not entitled to scrutinize the facts of the case to decide whether the Minister had exercised his discretion in accordance with law in judicial review; (iv) the Minister was under no obligation to give reasons for his decision, as he was performing an administrative rather than a quasi-judicial function; (v) the allegation of victimization was not raised by the respondent as his defence at the domestic inquiry; (vi) the order for mandamus cannot be maintained as it was applied under O 53 of the RHC as opposed to ss 44 and 45 of the Specific Relief Act 1950 ('the 1950 Act'); and (vii) the trial judge was barred by the provisions of s 49 of the 1950 Act from issuing a writ of mandamus.

Held, dismissing the appeal unanimously: (1) (per Gopal Sri Ram JCA) the exercise of any discretion, executive or judicial, would result in the making of a decision, and no amount of intellectual gymnastics could produce an opposite conclusion; (2) (per Gopal Sri Ram JCA) the common law, in its dealings with workmen, is both archaic and unfair. It is clear that s 20 of the Act is a remedial provision which is housed in a piece of beneficent social legislation, intended by Parliament to elevate the status of a workman from the weak position under the common law to a much stronger position. It should, therefore, receive a broad and liberal interpretation that will have the effect of advancing that purpose; (3) for that is what the Act is primarily aimed at. Next, the Minister must ask himself whether, objectively speaking, the representations made under s 20(1) are frivolous or vexatious. If they are, he may be justified in refusing a reference. His determination upon the question is not conclusive and may be reopened in judicial review; (4) (per Gopal Sri Ram JCA) thus, when a question arises as to whether the Minister has correctly exercised his discretion under s 20(3) of the Act, it is the duty of a court to undertake a meticulous examination of the facts that were made available to the Minister. If the examination reveals that the representations made under s 20(1) are neither frivolous nor vexatious, a decision not to refer is liable to be quashed by certiorari; (5) (per Gopal Sri Ram JCA) the Act has established a special tribunal, ie the Industrial Court, to adjudicate upon a dispute arising from representations made under s 20(1) of the Act. Therefore, it is no part of the Minister's function to arrive at a concluded view upon the merits of the dispute; (6) (per Gopal Sri Ram JCA) the fact that an employer has conducted a domestic inquiry against his workman is an entirely irrelevant consideration upon the issue whether the latter had been dismissed without just cause or excuse. Thus, the Minister ought not to be influenced by such factor when exercising his discretion; (7) (per Gopal Sri Ram JCA) the current approach to the judicial review of administrative powers is that laid down in Rohana bte Ariffin & Anor v Universiti Sains Malaysia [1989] 1 MLJ 487, namely whether procedural fairness is meted out in a particular case. Procedural fairness is part of our law because of the terms of arts 5(1) and 8(1) of the Federal Constitution. As a general rule, procedural fairness, which includes the giving of reasons for a decision, must be extended to all cases where a fundamental liberty guaranteed by the Federal Constitution is adversely affected in consequence of a decision taken by a public decision-maker; (8) (per Gopal Sri Ram JCA) whether a particular right is a fundamental liberty is a question that has to be dealt with on a case by case basis. This case concerned the right to livelihood which was one of the fundamental liberties guaranteed by Pt II of the Federal Constitution. Thus, the Minister, when refusing to refer representations in the exercise of his discretion under s 20(3) of the Act, was reasonably expected to give reasons for his decision. If he gave no reasons or inadequate reasons, it was open for a court to conclude that he had no good reasons for making the decision he did. The reasons he gave were then subject to scrutiny for the purpose of determining whether he had exercised his discretion in accordance with law; (9) (per Gopal Sri Ram JCA) the trial judge in this case was correct in issuing certiorari and quashing the Minister's decision. First, the trial judge was relying on authority which was binding upon him in analysing the facts of the case and in coming to his conclusion. Secondly, the material that was examined by the judge was the same as that before the Minister. Thirdly, the representations made by the respondent under s 20(1) did in fact raise serious questions that merit reference, and were neither frivolous nor vexatious. The fact that the complaint of victimization was never raised during the domestic inquiry but only much later only went to the weight of the allegation, which was a matter for the Industrial Court to determine. Fourthly, it was clear that the Minister gave no reasons for declining the reference. Fifthly, the facts when objectively viewed leave no doubt that a reasonable Minister similarly circumstanced would have decided to refer the representations to the Industrial Court; (10) (per Gopal Sri Ram JCA) the Minister in this case could either refer the representations to the Industrial Court or decline to do so. Having elected the latter course, all that was left was the power to refer, which could be enforced by mandamus; (11) (per Gopal Sri Ram JCA) it was wrong to assume that an applicant was to be limited only to the statutory form of mandamus as provided by Ch VIII of the 1950 Act. It is apparent from O 53 rr 1(1), (2) and 2(1) of the RHC, that the law has provided two avenues to a litigant who is desirous of applying for an order of mandamus, and that he may resort to either; (12) (per Gopal Sri Ram JCA) further, para 1 of the Schedule to the Courts of Judicature Act 1964 ('the Schedule') also confers upon the High Court wide powers in addition to those already seised of by that court in the field of public law remedies. Thus, the court has jurisdiction to grant relief not expressly prohibited by written law pursuant to paragraphs in the Schedule. In the field of public law remedies, the High Court is not confined to the grant of usual prerogative orders known to English law, but is at liberty to fashion the appropriate remedy to fit the factual matrix of a particular case, and to grant such relief as meets the ends of justice, based on our own legislation; (13) (per Gopal Sri Ram JCA) s 49 of the 1950 Act has no application to the facts of this case, as the trial judge did not issue a writ of mandamus as alleged by the senior federal counsel representing the Minister, but an order of mandamus; (14) (per Siti Norma Yaacob JCA) the Act itself is a piece of social legislation by which disputes between employers and their workmen are to be speedily settled or resolved and when interpreting such an Act, the liberal approach is to be taken; (15) (per Siti Norma Yaacob JCA) in the light of the Minister's omission to give reasons for his decision, this court could go into the merits of the respondent's complaint to see whether it is frivolous or vexatious, and whether the Minister had acted fairly in deciding as he did, provided that such considerations are limited to the materials that were before the Minister. On the facts of this case, it could not be said that the respondent's complaint was frivolous or vexatious as there were sufficient materials disclosed which ought to have influenced the Minister to refer the dispute to the Industrial Court. The fact that he did not, militated against the object of the Act; (16) (per Siti Norma Yaacob JCA) at the domestic inquiry, it would not be to the respondent's own interest that he should defend himself by accusing his own managing director of victimizing him. Thus, the fact that the defence of victimization was not raised contemporaneously at the domestic inquiry did not disentitle the respondent raising it subsequently in proceedings to have his dismissal questioned; (17) (per Gopal Sri Ram JCA) The exercise of discretion under s 20(3) may be quashed, if the Minister commits an 'Anisminic error' or if his decision is tainted with 'Wednesbury unreasonableness.' However, it is necessary to identify the parameters of the discretion with precision. As a very general guide, the Minister ought to ask himself whether the way he exercises his discretion has the effect of preventing or settling the particular dispute;(per Siti Norma Yaacob JCA) since both the RHC and the 1950 Act contained provisions for the issue of the order of mandamus, it was open to the respondent to choose under which law he wished to proceed. As such, reliance on s 49 of the 1950 Act was of no consequence, and in any event, it spoke of a writ of mandamus when what was being applied for was an order of mandamus.

Hong Leong Equipment Sdn Bhd v Liew Fook Chuan and another appeal [1996] 1 MLJ 481 Court of Appeal, Kuala Lumpur (Gopal Sri Ram, Siti Norma Yaakob and Ahmad Fairuz JJCA).

The appellant was convicted by the magistrate on the charge of failing to comply with a notice from the Sanitary Board issued under Byelaw 195, directing him to enlarge the open area of certain houses owned by him. The question raised was whether Byelaw 195 passed under s 5 of the Sanitary Board Enactment 1907 is ultra vires the powers of the Sanitary Board conferred by that section.

Held: the byelaw was ultra vires and void. Per Curiam (Braddell CJC): '...the Legislature has [not] conferred upon the board powers of subordinate legislation so as to enable it to require the owners of houses existing at the time the enactment was passed to reconstruct them for the purpose of bring them up to standard by any such means as condemning them as nuisances.'

Low Leong Huat v Public Prosecutor [1917] 2 FMSLR 162 Court of Appeal, Federated Malay States (Braddell CJC, Farrer-Manby and Innes JJC).

On 8 December 1898, the British Resident in Pahang, on behalf of the Sultan of Pahang by a lease executed on that date granted to the Pahang Corp, of which company the appellants were the assigns, full mining rights in certain lands in Pahang described in the second schedule thereto. As assigns of the Pahang Corp, the appellants were entitled to the benefit of the said lease. In February 1931 the principal tin producing countries of the world, including the Federated Malay States, entered into an agreement to secure a fair and reasonable equilibrium between production and consumption with the object of preventing rapid fluctuations in the price of tin. In pursuance of this International Agreement the Tin and Tin-Ore (Restriction) Enactment No 23 of 1931 was passed on 26 April 1931 by the Federal Council and assented to by Rulers of the Federated Malay States. By s 2(i) of the enactment the Chief Secretary to the government was empowered to make rules for restricting the production and export of tin. By virtue of these rules quotas were allowed to all tin producers including the appellants restricting the right to produce and export tin to the amount set forth in the quotas. Before the passing of Enactment No 23 of 1931, the appellants applied to the government for exemption from the provisions of the proposed legislation. Upon refusal by the government of the application, the appellants brought an action against the respondent by which they claimed to be exempted from any legislation restricting the amount and/or export of tin from their mines and, if they were not so exempted, to recover damages from the state of Pahang, in that the state had committed a breach of the lessor's covenants in the lease. The trial judge, Elphinstone CJ, dismissed the appellants' claim. On appeal, the Court of Appeal (Pritchard, Burton and Mudie JJ) affirmed the decision of Elphinstone CJ, Mudie J partially dissenting. The appellants then appealed to the Privy Council.

Held: (1) Enactment No 23 of 1931 overrides any special rights claimed by the appellants to have been conferred upon them by the lease of 1898, and there is sufficient indication on the face of the enactment of an intention that the rules to be made thereunder should be wide enough to apply to every case; (2) the suit against one of the Federated Malay States in respect of a matter or thing arising under or resulting from the operation of the enactment or the rules made thereunder is barred by s 5 of that enactment. The findings of the trial judge and of the Court of Appeal, except as to that part of the decision of Mudie J on question of exemption from mining regulations, upheld.

Pahang Consolidated Co Ltd v State of Pahang [1933] MLJ 247; [1931-32] FMSLR 39 Privy Council Appeal from Federated Malay States (Lord Tomlin, Lord Thankerton and Sir Lancelot Sanderson).

The term 'fees', in legal phraseology, means perquisites allowed to public officers as a reward for their trouble. Where therefore, in the table of fees published with the Order in Council of 6 March 1868, purporting to be made under Act XII of 1867, in s 1 was an item as follows: 'Admission of an advocate $50',

Held: this was not a 'fee', and not one within the power of the Executive Council, under the said Act, to pass.

Re Isaac Swinburne Bond [1869] 1 Ky 222 High Court, Straits Settlements (Hackett J).

On 9 February 1987, the Minister for Communications and Information gazetted the Asian Wall Street Journal (AWSJ) as a newspaper engaging in the domestic politics of Singapore and ordered that its circulation be restricted to 400 copies per day, under s 16 of the Newspaper and Printing Presses Act (Cap 206, 1985 Ed). This was done after the AWSJ refused to publish a letter from the Monetary Authority of Singapore in response to an article written on the Stock Exchange of Singapore Dealing and Automated Quotation Market. AWSJ challenged the minister's orders on the following grounds: (a) the minister had misdirected himself in law; (b) there was a procedural irregularity in that the minister had not acted fairly; (c) the minister's decisions were irrational; (d) they were unreasonable. The AWSJ sought an order of certiorari to quash the minister's decision.

Held, dismissing the application: (1) what is to be regarded as 'domestic politics' is a question of fact. In the absence of a statutory definition, the phrase must be given its natural and ordinary meaning. 'Politics' comprehends everything that concerns the government of the country. All the multifarious and multifaceted activities with which a government is concerned is encapsulated in the phrase 'domestic politics'; (2) whether the conduct of a foreign newspaper amounts to 'engaging in the domestic politics of Singapore' is a matter solely for the minister and not the court to decide unless it can be shown that the minister had exercised his power in bad faith or had acted irrationally or unreasonably; (3) 'judicial review' is a phrase used to describe civil proceedings brought against the state in an application for a writ of habeas corpus or for relief by way of an order of mandamus, prohibition or certiorari. Any person or body of persons having legal authority to make decisions affecting the rights of persons is subject to the supervisory jurisdiction of the High Court. But the court's power to intervene is a limited one. Judicial review is limited to a review of the decision-making process and not with the decision itself. Even the findings of fact on which the decision was reached are generally not within the scope of review; (4) the court allowed the Attorney General to read from the report of parliamentary debates to give the background facts relating to the amendments. However, such reports could not be looked at as an aid to construction of the statute; (5) on the evidence, the AWSJ was aware of the Newspaper and Printing Presses Act and the nature of the minister's powers under the Act. The minister had not acted unfairly, in that the AWSJ had been given the opportunity to correct stories which were considered by the government to have been inaccurate and slanted. The minister had not taken into account irrelevant considerations in relying on alleged misreporting and on the AWSJ's failure to publish official replies to articles published in the newspaper. There was no evidence that the minister had acted unreasonably.

Re Dow Jones Publishing (Asia) Inc's Application [1988] 2 MLJ 414 High Court, Singapore (Sinnathuray J).

[Annotation: Affirmed on appeal. See [1989] 2 MLJ 385.]

The Singapore Essential Regulations Proclamation, reg 34 empowered the competent authority to make orders to prohibit the import or export of any article 'so far as appears to him necessary for the protection of the public or for the maintenance of supplies and services essential to the community'. The Prohibition of Imports Order 1948 did not on the fact of it show that the competent authority had adduced himself to the question of what is necessary for this colony or exercised the discretion required by the regulations. It purported to prohibit all imports save under licence.

Held: the order was ultra vires the powers of the competent authority and was therefore void.

R v Koh Hai Sui [1951] MLJ 34 High Court, Singapore (Murray-Aynsley CJ).

In exercise of power conferred under s 107 of the Road Traffic Ordinance 1958, the Minister of Transport published a general directive in which he stated, inter alia, 'that in exercise of its powers under s 118 and 199 a licensing board shall attach to any licence issued under Part V to a Malay ... in respect of a taxi or hire-car a condition requiring that only a Malay driver shall be employed to drive such vehicle ...'. Section 119 provides that subject to Part V of the Ordinance the licensing board may attach such condition as it may think fit with respect to matters to which it is required to have regard under s 118. The material provision of s 118, namely sub-s (5) which states: 'Subject to the provisions of sub-ss (2), (3) and (4) of this section the Licensing Board in exercising its discretion under this section shall give preference to an application from a Malay or a company a preponderant part or if there is no such company suitable a substantial part of whose capital is owned by Malays over any other application'. The appellant was charged with breach of the condition attached to his licence which prohibited his taxi to be driven by a person other than a Malay and was convicted and fined. He appealed on two grounds, one of which was that the licensing board in imposing the condition was acting ultra vires.

Held: (1) the powers of the licensing board to attach conditions to licences being those in s 119 were confined to matters referred to in s 118(5). These powers entitled the board to give preference to a Malay when issuing a licence. This done, the powers were exhausted. The board was therefore acting ultra vires in imposing a further condition that only a Malay driver could be employed on the vehicle; (2) the ministerial directive under s 107 did not supply additional powers to the licensing board to validate the condition. The authority of the Minister of Transport to give general directives is, by reason of s 107(3), limited to directives on policy to be followed in determining applications and does not extend to matters arising thereafter.

Ghazali v Public Prosecutor [1964] MLJ 156 High Court, Ipoh (Ong J).

This was an appeal by the accused against his conviction on a charge of using a motor lorry so laden with bales of rubber that the weight thereof including the load exceeded the maximum laden weight painted on the side of the lorry in pursuance of r 89 of the Motor Vehicles (Construction and Use) Rules 1948. It was contended on behalf of the appellant that the Registrar of Vehicles had no power to regulate, assess or to determine the maximum laden weight of heavy motor cars and motor cars which were constructed or adapted for use for the carriage of goods or trailers and that the determination of the maximum laden weight of such vehicles was ultra vires the powers of the Registrar of Vehicles. It was further contended that as the Registrar of Vehicles had no authority to determine the maximum laden weight of such vehicles, r 93A of the Motor Vehicles (Construction and Use) Rules 1948 was also ultra vires.

Held: (1) by s 44(1)(d) of the Road Traffic Ordinance (Cap 227) the power to regulate the maximum laden weight of motor vehicles was exclusively reserved to the Minister for Communication and Works; (2) the Registrar of Vehicles had no authority to fix the maximum laden weight of a heavy motor car or a motor carriage of goods or a trailer, and such weight fixed by him on the licence was in conflict with the maximum laden weight laid down in r 94 or 96 of the Motor Vehicles (Construction and Use) Rules; (3) the determination of the maximum laden weight of heavy motor cars constructed or adapted for use for the carriage of goods or trailer was ultra vires the powers of the registrar of vehicles; (4) rule 93A of the Motor Vehicles (Construction and Use) Rules 1948 was ultra vires the powers of the Minister for Communication and Works.

Chua Bak Heng v R [1957] MLJ 247 High Court, Singapore (Chua J).

This was an appeal from an award of the arbitrator under the Workmen's Compensation Ordinance 1952 that failure to deny the claim constituted an admission under reg 32. The two main grounds of appeal were (1) whether or not reg 32 was intra vires or ultra vires the rule making power contained in the ordinance and (2) whether if it was intra vires, it creates no more than a rebuttable presumption. It was argued on behalf of the workman that the regulation having been tabled before Parliament and there being no motion to annul, the court could not go into the question of vires.

Held: (1) the effect that the court will not interfere with statutes and certain statutory instruments is limited to the statutes themselves and to such subsidiary legislation or instruments as are by the enactment itself declared to form part of the legislation enacted. The Legislature having by its language not claimed freedom from the controls of the court, the court has power to declare whether these regulations were intra vires or ultra vires the rule making power under the ordinance; (2) reg 32 is not only not within the general provisions of s 43 but it is in direct conflict with s 30(2); and s 30(2) overrides reg 32.

Government of the Federation of Malaya v Francis Koran [1961] MLJ 227 High Court, Ipoh (Neal J).

The applicants applied for an order of certiorari to remove into the High Court and to quash the decision of the Padi Tribunal ('the Tribunal') which dismissed the applicants' appeal against the decision of the Enquiry Officer made in Padi Case No 27 of 1989. The respondent became the registered owner of the padi land in question in June 1989. The applicants claimed, inter alia, that they had been cultivating the said land for nearly 20 years and had been paying rentals regularly to the previous land owner, and that when they sent their rentals to the respondent after he became the owner of the land, he refused to accept the rentals. On 19 July 1989 the applicants, through their solicitors, applied to the Enquiry Officer of the Kota Setar District under the Padi Cultivator (Control of Rent and Security of Tenure) Act 1967 ('the Act') to make an order for a written tenancy agreement in respect of the padi field to be entered into between the respondent and themselves. Both the first applicant and the respondent gave evidence at the enquiry. The first applicant gave evidence on behalf of all the other applicants. On 25 November 1989 the applicants were informed that the Enquiry Officer had made an order on 15 November 1989, ordering the 'cultivators who are not owners ... to leave and not to cultivate the padi land ... which is to be cultivated personally by the legal owner ...'. No reasons were given by the Enquiry Officer at that stage. The applicants appealed to the Padi Tribunal on the grounds that the Enquiry Officer had failed to properly consider the evidence showing that there existed a relationship of landlord and tenant between the applicants on the one hand and the former landlord and the present landlord on the other. They also complained that he had erred when he failed to properly consider s 24(1)(f) of the Act. The Enquiry Officer's grounds of decision were eventually supplied by order of the Tribunal. It stated that: (a) as there were no records of any tenancy or an encumbrance in the Land Office, it meant that the said land was, legally speaking, not subjected to any tenancy agreement; and (b) the land owner had never made any contract with the 12 persons cultivating his land. The Tribunal's reasons for their dismissal of the appeal were, inter alia, that: (a) the evidence adduced was insufficient to raise the relationship of landlord and tenant; and (b) that the grounds of appeal were insufficient.

Held, allowing the application: (1) while the ouster clause in s 30 of the Act is effective in excluding certiorari for error on the face of the record, it does not exclude certiorari for quashing a decision made by the Tribunal if the Tribunal acted without jurisdiction or where otherwise their decision is a nullity; (2) the Enquiry Officer had jurisdiction to enter into the inquiry. If a matter should come up before the Enquiry Officer for inquiry in the context of s 7(1), it presupposes that there was a tenancy agreement between the applicants and the respondent. But while the applicants claimed that they were tenants of the previous landlord, the respondent disputed it. It was at this stage that the Enquiry Officer should have declined to proceed further with the case; (3) while the Enquiry Officer could have proceeded with the inquiry on the hearing date, as soon as he became aware that he had to decide whether a tenancy agreement ever existed in respect of the land, he should have stopped the proceedings because he had no power to determine that question. He had powers under the Act in relation to a tenancy agreement which was existent or which had expired. Whether a tenancy agreement ever existed was a matter for a competent court of law to decide; (4) the Tribunal would have had jurisdiction if there was a tenancy matter arising under s 7(1). But in the circumstances of this case, the Tribunal had no jurisdiction since the issue was not that but whether there was a landlord-tenant relationship and it had been decided that there was no tenancy arising at all; (5) the Tribunal's decision which, in effect, affirmed the null and void proceedings which continued after the Enquiry Officer became aware that he had to determine whether a tenancy existed or not, as well as a null and void order of eviction, could not and should not have been made.

Ibrahim bin Hanafiah & Ors v Zakaria bin Hanafi Originating Motion No 25-31-91 High Court, Alor Setar (KC Vohrah J).

The plaintiff was the son of Mdm How Peng, the statutory tenant of 21 Jalan Berseh ('the premises'). Mdm How Peng passed away in 1962 and on 29 September 1962, a written agreement was entered into between Mdm How Peng's two sons whereby the plaintiff was to have control of the first level of the premises and the right to collect rent from certain subtenants. On 27 April 1982 the premises were acquired by the government under the Land Acquisition Act (Cap 152) for public housing and general development. On 19 July 1983 the defendants offered the plaintiff a list of HDB shop premises which were available as alternative business premises, but the plaintiff asked instead for a cash grant as chief tenant of the premises. The plaintiff accepted a cash payment of S$19,050, but later claimed that an amount of S$76,000 should have been paid to him on the basis that he had a legitimate expectation for compensation which was founded on the declared policies of the government. This was a reference to a series of government press releases culminating in a press release dated 21 March 1985, wherein it was stated that 'for premises less than 200sq m in floor area, S$76,000 payable to the sole occupier, or in the case of multi-tenanted premises, S$38,000 to the chief tenant and S$25,400 per sub-tenant subject to a maximum of S$88,800 per premises'.

Held, dismissing the plaintiff's claim: (1) it was necessary for the plaintiff to prove in the first place that he had a legal right to be paid the compensation by the defendants for the business carried on by him in the premises acquired by the defendants and then, as to the quantum, that the whole amount of S$76,000 should be paid to him as chief tenant and sole occupant of the premises. The plaintiff failed to establish this as the court found that two business establishments were in occupation at the second level; (2) none of the authorities cited by the plaintiff show that one can found a cause of action for an ex gratia payment based on what the government may have said; (3) the court has no jurisdiction to control an ex gratia payment which was made under purely administrative discretion. The payments were made ex gratia and not as a matter of legal right.

Seah Hong Say (t/a Seah Heng Construction Co) v Housing and Development Board [1992] 2 SLR 54 High Court, Singapore (Yong Pung How CJ).

[Annotation: Affirmed on appeal. See [1993] 1 SLR 222.]

In this case, the Kelantan state government, the respondent, had published a declaration that the land belonging to the appellant was needed for a public purpose, that is, for the purpose of office and commercial space of the Kelantan Foundation. It was contended that the declaration was invalid and ineffective. The learned trial judge dismissed the application of the appellant and he appealed. The issues on appeal were (a) whether or not the declaration was valid and (b) whether or not the state government acted mala fide, that is, in bad faith when acquiring the property.

Held: (1) in view of the provisions of s 19(1) of the Kelantan Foundation Enactment 1974, the declaration in this case had effect as if it were a declaration that the property was needed for a public purpose in accordance with the Land Acquisition Act (Act 34/1960) and the declaration was conclusive evidence that the land was needed for the purpose specified in the declaration; (2) the fact that other properties were available was not enough to prove that the state government had acted mala fide when it acquired the property.

Yeap Seok Pen v Government of State of Kelantan [1982] 2 MLJ 202 Federal Court, Kota Bahru (Suffian LP, Lee Hun Hoe CJ (Borneo).

At a settlement proceedings before the assistant settlement officer, the subject land was settled on the appellant. The respondent, the rival claimant, being unhappy with that decision, appealed to the sessions court. The learned sessions court judge allowed both parties to adduce further evidence by way of affidavit. The appeal was allowed with costs, on the following grounds: (a) that the assistant settlement officer was assisted by three assessors when the Land Code made no provision for the appointment of assessors; (b) that, in contravention of s 93(2) of the Land Code, the respondent's advocate was prevented from assisting him to present his claim and calling witnesses; (c) that one witness was prevented from giving evidence; and (d) that there was a failure to consider adequately or at all who had established customary right over the land. Against this decision, the appellant appealed.

Held, allowing the appeal: (1) in reaching her decision, the learned sessions court judge had absolutely failed to consider and evaluate the evidence relating to the merits of the case. Based on the grounds of her judgment, the most she could have done was to set aside the finding of the assistant settlement officer. The decision of the sessions court must therefore be set aside; (2) by consent, and having regard to the circumstances of this case, there was to be a fresh settlement proceeding, not to be conducted by either of the two assistant settlement officers who had previously dealt with this dispute; (3) the appeal at the sessions court which succeeded owing to no mistake of the respondent, is insufficient to deprive the appellant of her entitlement to the costs; (4) and (b) no one should be a judge in his or her own cause; (5) with regard to the procedure for inquiry, in the absence of any provision, it must necessarily be left to the discretion of the settlement officer or his assistant assigned to hold the inquiry, subject always to the rules of natural justice based on the two following broad principles: (a) no one should be condemned unheard;natural justice in a settlement inquiry is, generally, to adopt a procedure fair to all the interested parties and what is fair would depend upon the nature of the claims, the constitution of the inquiry and of the parties involved and other circumstances of the case. In exercising their discretion on the procedure for an inquiry therefore, the officers owe a duty to act fairly and honestly and to the best of their ability.

Abo Ak Pangka v Mawer Ak Kaleng [1993] 3 CLJ 149 High Court, Kuching (Chong Siew Fai J).

In this case the appellant had been given a licence giving him the exclusive privilege of supplying electricity to Saratok in Sarawak. Under the Sarawak Electricity Supply Corporation Ordinance 1962, the government had a scheme for rural electrification. Under the ordinance it was provided that the corporation (the first respondent) would not supply electricity to a consumer in an area which forms part of the area of supply of the licensee, except with his consent. It was also provided that where the licensee refuses or withholds such consent the corporation can appeal to the Governor-in-Council, who can, if satisfied that such consent has been unreasonably refused or withheld, dispense with such consent. The corporation asked the appellant for consent to supply electricity to some applicants from Saratok but this was refused. The appellant also turned down a request to charge the new rates for the supply of electricity fixed by the Ministry of Communications and Works. The corporation thereupon appealed to the Governor-in-Council who after considering the material evidence including the correspondence between the corporation and the appellant found that the consent of the appellant had been unreasonably withheld and refused. Licence was therefore granted to the corporation. The appellant thereupon brought an action against the corporation (first respondent) in which he claimed a declaration that the corporation was precluded from using, working or operating any installation for the supply of electrical energy within that area of Saratok covered by the licence granted to the appellant, an injunction and damages. He also brought an action against the government of Sarawak (the second respondent) in which he claimed a declaration that the action of the Governor-in-Council in dispensing with his consent to a supply of electricity by the corporation within the area of the licence was ultra vires and void, and a declaration that the licence granted to the corporation to supply electricity within the area of his licence was also ultra vires and void. The actions were consolidated and the learned trial judge gave judgment for the appellant. He ordered (a) a declaration that the action of the Governor-in-Council purporting to dispense with the consent of the appellant was null and void; (b) a declaration that the licence granted to the corporation was null and void in so far as it purported to cover the area designated in the appellant's licence. He also granted damages but not the injunctive relief claimed. The learned trial judge based his judgment on the following findings of fact: (a) that the corporation did not inform the appellant that an appeal would be lodged with the Governor-in-Council under the proviso to s 15(2) of the ordinance; (b) that the government did not inform him that the appeal had been lodged; (c) that the plaintiff was not informed of the date on which the appeal would be considered; (d) that he was given no opportunity to deal with the complaints against him or to present and develop the reasons why he refused his consent to a supply by the corporation; (e) that the receipt of a letter from the corporation was the first he knew that there had been an appeal and the Governor-in-Council had dispensed with his consent. The learned trial judge held that the rule of audi alteram partem applied in this case and that there was a breach of natural justice as the plaintiff-appellant had not been given a proper or any opportunity of being heard, that is, of presenting his case orally or in writing to the Governor-in-Council before a decision on the corporation's appeal was taken. The respondents appealed to the Federal Court which allowed the appeal ([1980] 1 MLJ 65). Although the Federal Court agreed that the rule of audi alteram partem was applicable, they reached the conclusion that notwithstanding the failure to give the plaintiff the opportunity to state his case, the Governor-in-Council had all the material evidence before him and that he could have come to no other conclusion than that the plaintiff's consent had been unreasonably withheld. The app ellants appealed.

Held: (1) the Federal Court fell into the error of thinking that under sub-s (3) of s 15 of the ordinance consent shall be deemed to be unreasonably refused if the licensee is not willing and able to supply the electricity upon the terms which the corporation was willing and able to offer. The subsection on the other hand requires the Governor-in-Council to have regard, amongst other things, to the terms upon which the corporation is willing and able to supply. 'To have regard amongst other things' is far different from an obligation to treat the corporation's terms as conclusive of reasonableness; (2) the letter of the appellant to the corporation which was presented to the Governor-in-Council was no more than an indication of his case, namely that he can and does supply electricity on reasonable terms. It is no substitute for detailed evidence and argument, which would be needed on an appeal to the Governor-in-Council, who has to decide not only on the reasonableness of the licensee's charges but whether in all the circumstances he should exercise his discretion against the licensee; (3) it was impossible on the facts of the case to know what the Governor-in-Council would have decided had the appellant been given an opportunity to develop orally or in writing his full case before the decision was taken. It could not be said with any certainty that the decision would have been the same and therefore the appeal must be allowed.

Wong Ah Suan v Sarawak Electricity Supply Corp & Anor [1982] 2 MLJ 89 Privy Council Appeal from Malaysia (Lord Diplock, Lord Edmund-Davies, Lord Scarman, Lord Lowry and Lord Brandon of Oakbrook).

In this case the appellant had applied for a licence to hold a DAP solidarity dinner and lion dance in a public place. The first respondent issued the licence but imposed seven conditions, two of which the appellant sought to impugn on the ground that they were unconstitutional, null and void and of no effect in that they abridged the right of freedom of speech guaranteed under art 10(1)(a) of the Federal Constitution. One of the conditions restricted the number of speakers to seven only and part of the other forbade the speeches to touch on political issues. The learned trial judge held the latter condition pertaining to speeches touching on political issues to be an unreasonable restriction in violation of the right of freedom of speech but held the former restricting the number of speakers to be valid. The appellant appealed.

Held: there does not appear to have been any valid reason for the restriction imposed on the number of speakers within the time limit granted in the licence, that is from 5 pm to 11.30 pm and the particular condition was unreasonable in the circumstances as the police had the means to deal with any infringement of the time frame specified in the licence under the provisions of s 27 of the Police Act 1967.

Chai Choon Hon v Ketua Polis Daerah, Kampar and Government of Malaysia [1986] 2 MLJ 203 Supreme Court, Penang (Abdul Hamid Ag LP, Mohamed Azmi and Abdoolcader SCJJ).

In this case, the plaintiff owned a bungalow on land in Johore Bahru. The first defendant owned a piece of land on the boundary of the plaintiff's land and had obtained approval to erect a four-storey building, the plans for which were approved by the Town Council, Johore Bahru. The plaintiff claimed a declaration that the approval of the building plans by the Town Council was illegal and inoperative or in the alternative that the approval of the building plan was null and void as being ultra vires and was approved contrary to the rules of natural justice. He also claimed damages against the Town Council and the owner of the land on which the building was built. It was also alleged that there had been a breach of the building byelaws and the plaintiff claimed damages arising from this breach. On a preliminary objection, the High Court had held that even assuming the approval of the building plans by the Town Council was wrong, the plaintiff had no cause of action. An appeal against this ruling was allowed by the Federal Court ([1969] 1 MLJ 195) and it was ordered that the case be remitted back to the High Court for retrial of the issues of fact and determination of the suit.

Held: (1) the onus was on the plaintiff to establish that there had been a breach of s 145 of the Town Board Enactment (Johore No 118) and on the evidence he had failed to discharge the burden, as the approved zoning plan showed that the building approved came within the class of building that may be permitted by the Town Council; (2) the first defendant had committed a breach of byelaw 46 of the Town Boards Enactment in that he had failed to construct any effective boarding sufficient to protect the public. He had also failed to comply with byelaw 46 and in the circumstances of the case was also negligent; (3) on the evidence, the plaintiff was entitled to damages of $1,505 against the first defendant.

Tok Jwee Kee v Tay Ah Hock & Sons Ltd & Anor [1973] 1 MLJ 129 High Court, Johore Bahru (Abdul Hamid J).

[Annotation: See also under the subject Local Government (Buildings).]

The plaintiffs were the registered owners of a piece of land situated within the municipal boundary. They alleged that in December 1960 the then municipal engineer informed their architect that the defendants had approved their application to erect ten units of buildings shown on plan No 8720, provided that septic tanks were resited. They alleged that the plan showed the front of the buildings to be of the ordinary dwelling house type, but the defendants contended that the plan as a whole showed that the buildings to be erected were of the dwelling house type. It was common ground that the plaintiffs completed seven of the ten units shown on the plan, and that they departed from the passed plan when they constructed fronts of the ground floor of the buildings for use as shops closed by shutters and collapsible iron gates. The defendants contended that in departing from the original plan, the plaintiffs had altered entirely the nature of the user of the buildings. In November 1961, the plaintiffs' architect submitted to the defendants plan No 9322 showing departure from passed plan 8720 and in December 1961, the municipal engineer returned plan No 9322 to the architect stating that the 'application was refused as the proposed buildings were originally intended for dwelling purposes only, and conversion into shophouses necessitates provision of 20 ft service road which is not possible'. The plaintiffs then made a personal application to the President of the Municipal Council and their architect wrote to the municipal engineer in January 1962. The engineer replied stating that the defendants had already considered the plaintiffs' previous applications and that the waiver of a 20 ft service road was not possible. There followed various protracted correspondence, the engineer replying the matter was still 'under consideration'. Finally on 21 May 1962, the plaintiffs' solicitor wrote pointing out that they were suffering loss by the delay in finalizing the issue. On 27 June 1962, the municipal engineer wrote to the plaintiffs' architect informing him that the 'Councillors have approved the amendment as shown in the plan'. In this action, the plaintiffs claimed, inter alia, 'a declaration that the defendants' disapproval of amended plan No 9322 to passed plan No 8720 was wrongful and ultra vires and by maintaining their wrongful disapproval and wrongfully refusing or neglecting to approve the aforesaid amended plan despite repeated requests until 27 June 1962, had caused loss to plaintiffs, and also claimed general and special damages'. The defendants contended that they acted at all material times reasonably and in bona fide exercise of their duties and powers as Municipal Councillors and they denied liability in damages. The following issues of law were raised: (1) were the defendants acting ultra vires the ordinance in refusing to pass plan No 9322? (2) were the plaintiffs guilty of an offence under s 144 of the Municipal Ordinance (SS Cap 133) when they departed from passed plan No 8720 without the written permission of the Municipal Councillors and, therefore, could they claim damages in respect of and arising out of their illegal acts? (3) would the plaintiffs, who have failed to have recourse to the remedy specifically provided by s 144 of the ordinance, be precluded from complaining against the defendants or from claiming any damages which may arise out of their failure to pursue their proper remedy? (4) was the action barred by limitation under the Public Authorities Protection Ordinance 1948?

Held: (1) the defendants, in refusing to pass the amended plan, were acting ultra vires the ordinance; (2) there was no point in pursuing the second issue since it was clear that the plaintiffs' contention was that their cause of action arose out of the refusal to approve the amended plan; (3) the answer to the third issue is that even where the specific remedy provided for is for failure to perform or as in this case the improper exercise of a discretionary power, the obvious intention of the Legislature in this case is to exclude an action for damages; (4) time would begin to run for the purposes of the Public Authorities Protection Ordinance 1948 from the time when the act was caused, not from the time when the injury or damage ceased, or in the case of a continuing injury or damage, when the act causing the injury or damage ceased. If the refusal to approve the amended plan by the defendants was actionable, there had indeed been a continuation of the act, and therefore the plaintiffs were correct in saying that the act causing damage ceased only from 27 June 1962. It followed that this suit was not time-barred. However, in view of the answer to the third issue of law above, the fact that the suit was not time-barred could not affect the action; (5) there was no cause of action and the suit was dismissed with costs.

Mak Koon Yong & Anor v Municipal Councillors, Malacca [1967] 1 MLJ 256 High Court, Malacca (Wan Suleiman J).

Majlis Perbandaran Seberang Perai v Tropiland Sdn Bhd [1996] 3 MLJ 94 Court of Appeal, Kuala Lumpur (Gopal Sri Ram, Mokhtar Sidin and NH Chan JJCA).

Majlis Perbandaran Seberang Perai v Tropiland Sdn Bhd [1996] 3 MLJ 94 Court of Appeal, Kuala Lumpur (Gopal Sri Ram, Mokhtar Sidin and NH Chan JJCA).

The respondent owned a piece of land in Seberang Prai, and it wanted to construct a 11-storey commercial building on it. It hired an architect who drew up and submitted the earthworks and layout plans to the local authority of Seberang Perai ('the appellant') for approval. The layout plan was approved by the appellant with the condition that the respondent had to construct a monsoon drain on the adjoining state land. The earthworks plan, which was approved subsequently, came with the condition that the respondent construct a perimeter drain on the respondent's land. The respondent then commenced construction. However, the respondent later had to submit an amended layout plan to the appellant, because it wanted to construct a five-storey instead of the original 11-storey building. The perimeter drain was not drawn into the amended layout plan. The appellant approved the amendment. After the building was completed, the respondent applied to the appellant for a certificate of occupation. The appellant refused to issue the certificate, principally on the ground that the respondent had failed to comply with the conditions, ie the respondent had only constructed about 80% of the monsoon drain, and did not construct the perimeter drain at all. The respondent took out an originating summons claiming declarations to the effect that the appellant's refusal to issue the certificate of fitness for the building was unlawful. The respondent contended that it was unreasonable for the appellant to impose the conditions because: (i) there were squatters on the state land, which the respondent lacked locus standi to enter; (ii) the respondent had a legitimate expectation that the state land would be made available to it by the appellant; and (iii) the area of the respondent's land on which the perimeter drain was to be constructed had to be surrendered to the Jabatan Kerja Raya for the construction of a road. The trial judge took the view that the appellant was acting ultra vires the Town and Country Planning Act 1976 and had committed 'Wednesbury unreasonableness' in imposing the conditions. In the case of the perimeter drain, the judge relied on the extrinsic evidence rule housed in ss 91, 92 and 93 of the Evidence Act 1950 to justify his conclusion that the approved amended layout plan and the earthworks plan ought not to be read together. As the perimeter drain was not drawn into the approved amended plan, the judge held that the requirement to construct the perimeter drain was a new requirement as a condition for the issue of the certificate of fitness, and the appellant had thus acted unreasonably. The trial judge accordingly granted declarations that the appellant was not entitled in law nor justified in the exercise of discretion to require the respondent as conditions for the issuance of an occupation certificate: (i) to construct a perimeter drain on the land ('the first declaration'); and (ii) to complete the construction of the monsoon drain on state land with the presence of illegal structures on state land ('the second declaration'). The judge further ordered damages to be assessed by the senior assistant registrar of the High Court in respect of the loss and damage suffered by the respondent. The appellant appealed.

Held, allowing the appeal: (1) until very recently, it was thought that when the exercise of discretion by a public decision-maker is challenged on the ground of illegality or 'Wednesbury unreasonableness', the court merely examines the decision-making process and not the correctness of the decision itself on merits. The fallacy of this approach has now been exposed by the majority decision of the Federal Court in Ramachandran v The Industrial Court of Malaysia [1997] 1 MLJ 145; (2) it follows that when the exercise of discretion by a public body, such as the appellant, is challenged, a court must examine the facts and determine whether the decision arrived at is reasonable. If it is, then, it is safe from attack. If it is not, then, the appropriate remedy may be given. In the present case, the judge concluded that the appellant had acted ultra vires and unreasonably. In the light of the law in its present state, his decision really turns upon his appreciation of the facts of the case; (3) although the High Court had jurisdiction to grant the first declaration in regard to the monsoon drain, it is equally settled that the remedy is discretionary in nature; (4) the judge ought to have borne in mind that he was being moved for a remedy that was essentially discretionary in nature. He ought to have refused it in the light of the facts made known to him in the affidavits; (5) in this appeal, the condition relating to the construction of the monsoon drain was there from the very beginning, and was not subsequently imposed upon the respondent. The respondent not only remained silent for three years after the imposition of the condition, but also completed 80% of the work before taking objection. In these circumstances, the doctrine of legitimate expectation has no application whatsoever to the facts of the present appeal. There was nothing unreasonable, in the circumstances of this case, in the appellant's insistence that the respondent fulfil the conditions subject to which planning permission was granted. It followed that the judge was wrong in granting the first declaration; (6) there may be several pieces of written law, both Acts of Parliament and subsidiary legislation, that regulate the development of land and the construction of or alteration to buildings. Anyone proposing to engage in land development must observe the provisions of all the written laws that regulate this form of human activity. It was, therefore, quite wrong for the judge to proceed upon the basis that compliance with the conditions attaching to the planning permission granted under the Town and Country Planning Act 1976 was quite sufficient. Regard must also be had to the equally compelling provisions of the Street, Drainage and Building Act 1974 which govern the carrying out of earthworks; (7) the judge made the assumption that all the necessary earthworks had been completed at the date when the respondent's amended plan was approved. As a matter of pure fact, the assumption made was wrong because the perimeter drain, which was very much a part of the earthworks, was never constructed. It followed that the reasoning of the judge lacked the necessary factual basis and his conclusion upon the point was a non sequitur; (8) the authorities referred to and relied upon by the judge that dealt with the extrinsic evidence rule deal with bilateral instruments in private law. The judge failed to realize that he was dealing with a public law case and not a construction summons taken out to interpret the clauses in a private document. That led him to the error into which he fell; (9) in the present case, the original plan for an 11-storey building, the earthworks plan and the amended plan for a five-storey building were all related to the same project. For that reason, they must be read together. The judge was wrong when he said the opposite. It followed that it was no answer for the respondent to say that it had met with all the conditions appearing on the approved amended layout plan. It must also comply with the conditions that appear on the earthworks plan. The condition about the perimeter drain might not appear on the approved amended layout plan, but it appeared on the earthworks plan. That was sufficient. The judge was wrong in treating it as a condition that was imposed later by the appellants. Acting upon an erroneous fact pattern, he applied the dictum of Mohd Dzaiddin J in Rethina Development. That was certainly a misdirection. It had occasioned a miscarriage of justice in this case; (10) the last point made by the judge was that the condition in question gives rise to an absurdity because the perimeter drain, if constructed, would run along the centre of a road to be constructed by the respondent and JKR. However, having read with care the three plans earlier mentioned, this court was satisfied that the absurdity referred to by the judge did not exist; (11) it could not be said that the appellant was acting unreasonably in withholding the certificate of fitness. That the law requires them to act as they have done is borne out by by-law 25(1)(b) of the Uniform Building By-Laws 1984 (being subsidiary legislation made under the Street, Drainage and Building Act 1974) which provides, inter alia, that certificate of fitness for occupation of a building shall be given when all essential services, including drains, have been provided. For these reasons, the judge was wrong in granting the respondent the second declaration; (12) the respondent did not ask for an award of damages, but merely an assessment in its summons. This was altogether wrong. Before an inquiry into or an assessment of damages may take place, there must be a judgment awarding damages, for it is only under a judgment awarding damages that an assessment or inquiry may take place; (13) in any event, it was sufficient to state that once the declarations were set aside, the order for assessment fell to the ground automatically; (14) the respondent's case alleged 'Wednesbury unreasonableness', not malice. Yet, the judge held that the appellant had acted in bad faith and out of malice. Having examined the relevant material in the record provided, the court was entirely satisfied that there was absent any material to support this finding.

Majlis Perbandaran Seberang Perai v Tropiland Sdn Bhd [1996] 3 MLJ 94 Court of Appeal, Kuala Lumpur (Gopal Sri Ram, Mokhtar Sidin and NH Chan JJCA).

Datuk Bandar Kuala Lumpur v Zain Azahari bin Zainal Abidin [1997] 2 MLJ 17 Court of Appeal, Kuala Lumpur (Gopal Sri Ram, Siti Norma Yaakob and Ahmad Fairuz JJCA).

Syarikat Bekerjasama-Sama Serbaguna Sungai Gelugor Dengan Tanggungan Bhd v Majlis Perbandaran Pulau Pinang [1996] 2 MLJ 697 Court of Appeal, Kuala Lumpur (NH Chan, Mahadev Shankar and Zakaria Yatim JJCA).

D served a notice to disconnect the supply of electricity from P's premises. P argued that such a notice was invalid because the notice did not state that the proposed disconnection of electricity supply had been authorized by the National Electricity Board. P filed a writ applying, inter alia, for an injunction to restrain D and its employees from disconnecting the electricity supply from its premises. P obtained an ex parte interlocutory injunction restraining D from taking such action. D applied to the High Court to strike out P's writ and statement of claim, inter alia, on the ground that P's writ did not disclose any reasonable cause of action.

Held, allowing D's application: (1) under s 85(5) of the Electricity Act 1949 which is an 'ouster' clause, the validity of the notice is non-justiciable and cannot be questioned in court. D had also acted within its jurisdiction as conferred by law. P's claim would therefore be struck out; (2) P's interlocutory injunction was accordingly a nullity and D need not apply to set it aside.

Slenderlin Beauty & Figure (Malacca) Sdn Bhd v Tenaga Nasional Bhd Civil Suit No 22-74-1989 High Court, Malacca (Mohd Noor J).

Chin Shui Lan v Director of Lands and Surveys Originating Motion No K 25-04-95 High Court, Kota Kinabalu (Tee Ah Sing J).

R v Secretary of State for Foreign and Commonwealth Affairs, ex p Everett [1989] 1 All ER 655 Court of Appeal, England (O'Connor, Nicholls and Taylor LJJ).

In October 1986, the second applicant's car was stolen and he reported the theft to the police. The first applicant was the insurance company which had insured the second applicant's car. Pursuant to the insurance policy, the first applicant had settled the second applicant's claim in respect of the theft of the car. In May 1988, the car was seized by Customs officers for conveying contraband but the driver of the car, however, escaped. As there was no prosecution, the magistrate's court ordered the car to be forfeited. The applicants appealed to the Deputy Minister of Finance ('the minister') for the return of the car under s 129 of the Customs Act 1967. The minister rejected the applicants' appeal ('the order'). The applicants then applied to court for a certiorari to quash the order on the ground that the order was irrational. The applicants argued that the minister had failed to consider, inter alia, that the applicants had not committed any offence and that public policy demanded that the stolen car be returned to its rightful owner. The respondent, however, contended that the minister was fully aware of the status of the car when the order was made. The respondent further contended that the exercise of the minister's discretion was not subject to judicial intervention.

Held, allowing the application: (1) when discretionary powers are given to a member of the executive, the test to be applied is an objective one; (2) if an objective standard had been applied to the order, the order was clearly irrational for being so outrageous in its defiance of logic and/or accepted moral standards. The consequence of the order was manifest injustice caused to someone who was completely innocent of any wrong-doing and who had been deprived of property; (3) accordingly, the minister, in making the order, had misdirected himself by failing to take into account self-evident facts favourable to the applicants.

Oriental Insurance Co Ltd & Anor v Minister of Finance [1992] 2 MLJ 776 High Court, Johore Baru (LC Vohrah J).

Hong Leong Equipment Sdn Bhd v Liew Fook Chuan and another appeal [1996] 1 MLJ 481 Court of Appeal, Kuala Lumpur (Gopal Sri Ram, Siti Norma Yaakob and Ahmad Fairuz JJCA).

In April 1988, a request to take the evidence of certain persons with addresses in Singapore for use in criminal proceedings in New South Wales was received by the Ministry of Foreign Affairs. On 23 May 1988, the Minister for Law issued a notice under s 43 of the Extradition Act ('the Act') authorizing the Senior District Judge 'or such other District Judge or magistrate as you may nominate' to the take the evidence as requested. A district judge named Francis Tseng was nominated. The respondents challenged the authorization of the Minister for Law and applied by motion to have it quashed. The High Court allowed the application. The Attorney General appealed.

Held, dismissing the appeal: (1) the term 'foreign state' was used throughout the Act in contradistinction to a 'declared Commonwealth country'; (2) the question of the status of a country as a Commonwealth country or otherwise was a matter for the executive. The Minister for Law, acting under s 18 of the Act, declared by Gazette notification that Australia was a Commonwealth country. This evidence was good enough for the courts that Australia was recognized by the executive as a Commonwealth country as opposed to a 'foreign state'; (3) s 43 did not apply to a Commonwealth country and therefore did not apply to Australia. There was no provision in the Act for the taking of evidence for use in criminal proceedings pending in a Commonwealth country; (4) by allowing the Senior District Judge to appoint the magistrate to take the evidence, the minister had delegated his power to make the appointment, which was not permitted by law.

Attorney General v Elite Wood Products (Australia) Pty Ltd & Anor [1992] 2 SLR 280 Court of Appeal, Singapore (Yong Pung How CJ, Lai Kew Chai and Warren LH Khoo JJ).

The minister on 15 June 1988 issued a warrant to arrest and detain A in prison until further order of the minister. The annexure to the warrant stated the grounds of A's arrest and the place where his residence would be restricted. A was arrested by X on 22 June 1988 who explained to him the contents of the annexure. A did not want to challenge the grounds of his arrest and he signed a statement admitting the grounds of his arrest and stating that he did not want to appeal to the minister as regards the place where his residence would be restricted. The minister subsequently made an order restricting A's residence for three years on 19 July 1988. A applied to the High Court to declare the restriction order null and void on the ground that the minister took at least 27 days from the date of A's arrest to make the restriction order. A therefore argued that the minister's delay prolonged his detention in prison. It was argued on the minister's behalf that the delay was justified because, inter alia, the minister had to consider whether a further inquiry was necessary.

Held, allowing the application: (1) had A disputed the grounds of his arrest, there might be good cause for the minister to hold further inquiry under s 2(2) of the Restricted Residence Enactment (FMS Cap 39). There was also no evidence that further documents or information had been received by the minister which would justify further inquiry; (2) A did not want to and never did appeal to the minister as regards the place to which he was to be restricted. Under the circumstances the minister had not acted with all convenient speed in making the restriction order under s 2(2) of the enactment. This therefore rendered A's detention in the prison unlawful. The restriction order was therefore not properly issued in accordance with the law.

Lai Poh Kim v Menteri Hal Ehwal Dalam Negeri, Malaysia & Ors [1992] 1 CLJ 151 High Court, Kuala Lumpur (Eusoff Chin J).

The residence of A was restricted by an order made by the minister under s 2(i) of the Restricted Residence Enactment 1933. A was served with a copy which was unsigned by the minister and merely bore the rubber stamped words 'TT Dato Megat Junid bin Megat Ayob'. A applied to the High Court for a declaration that the order was invalid. The High Court dismissed A's application and he appealed to the Supreme Court. Section 3(i) of the 1933 Enactment required, inter alia, a copy of the order to be delivered to A.

Held, allowing the appeal: (1) the word 'copy' in s 3(i) of the 1933 Enactment means a certified copy as provided under s 63(a) of the Evidence Act 1950 or a copy made from the original by mechanical processes which in themselves ensure the accuracy of the copy as provided in s 63(b) of the 1950 Act. An unsigned order as in this case which was partly printed and partly typewritten and not authenticated or certified to be a true copy of the order was not a copy as envisaged in s 3(i) of the 1933 Enactment; (2) the court will apply a strict interpretation on laws which restrict or curtail the liberty of subjects. A citizen whose personal liberty is about to be deprived or seriously restricted has the right to be notified, in the most authentic manner, the order which has been made against him; (3) since s 3(i) of the 1933 Enactment had not been complied with, the order was declared null and void.

Lee Weng Kin v Menteri Hal Ehwal Dalam Negeri, Malaysia & Ors [1991] 2 MLJ 472 Supreme Court, Malaysia (Hashim Yeop A Sani CJ (Malaya).

On 19 December 1986, the minister issued a warrant for the arrest and detention of the applicant under s 2(i) of the Restricted Residence Act 1933 ('the warrant'). The applicant was only arrested on 28 July 1989 pursuant to the warrant. On 25 August 1989 the minister issued two orders restricting the residence of the applicant under ss 2(ii) and 2A(i) of the 1933 Act ('the orders'). The orders served on the applicant merely carried a rubber stamp 'TT Dato' Megat Junid b Megat Ayob'. The applicant applied to the High Court for a declaration that the orders were invalid. The applicant firstly argued that the unreasonable delay in executing the warrant, vitiated the warrant. The applicant also contended that there was an unreasonable delay from 28 July 1989 to 25 August 1989 which vitiated the orders.

Held, allowing the application: (1) there is no statute of limitations in criminal matters. A warrant of arrest and detention must continue to be effective until it is revoked or set aside; (2) for the purpose of considering the proper orders under ss 2(ii) and 2A(i) of the 1933 Act, four weeks was not an inordinately long period; (3) the orders were not properly authenticated in this case and this fact alone would invalidate the orders.

Har Chee Kong v Timbalan Menteri Dalam Negeri Malaysia & Ors Originating Motion No 21-392-90 High Court, Shah alam (Shankar J).

Har Chee Kong v Timbalan Menteri Dalam Negeri Malaysia & Ors Originating Motion No 21-392-90 High Court, Shah Alam (Shankar J).

Under r 3 of the Motor Vehicles (Restricted Zone and Area Licences) Rules 1975, 'No person shall drive a motor vehicle into the restricted zone as described in the First Schedule during restricted hours unless there is in force in respect of such vehicle an area licence issued under these Rules'. The restricted hours at the relevant time of this case were from 7.30 am to 10.15 am. The respondent, on 11 December 1975 at about 8.40 am drove his car into the 'restricted zone' without first obtaining an 'area licence' by paying the then prescribed fee of $3. He was charged for having contravened r 3. At the trial, counsel on his behalf before any evidence was led, raised a preliminary objection to the charge. It was contended on behalf of the accused that the rules were ultra vires in that s 90(1) of the Road Traffic Act (Cap 92, 1970 Ed) did not confer any power on the minister to make rules to prohibit, except upon payment of a fee, motor vehicles from using any road. The magistrate accepted this contention and acquitted the respondent. The Public Prosecutor appealed and the sole question for determination was whether or not s 90(1) of the said Act gave power to the minister to make the rules.

Held: (1) prima facie the purpose of the rules is not to collect fees but to reduce the number of motor vehicles entering the 'restricted zone' in order to ease traffic congestion on the roads within the 'restricted zone' during the 'restricted hours' and the imposition of a fee for entering the 'restricted zone' during the 'restricted hours' is the means adopted to achieve the desired purpose and is merely incidental thereto. The rules were therefore validly made; (2) the rules do not prohibit traffic on the road within the 'restricted zone' and on their true construction they are rules which regulate traffic into and within the 'restricted zone'.

Public Prosecutor v MM Pillay [1977] 1 MLJ 228 High Court, Singapore (Wee Chong Jin CJ).

P, who were tenants of rent-controlled premises, were ordered by the Land Appeal Board to vacate the premises occupied by them. P had earlier appealed to the board from the decision of the Rent Tribunal which found in favour of the landlord's application for possession of the premises for development purposes. P being dissatisfied with the order of the board, applied for an order of certiorari to quash the order. P alleged, inter alia, that the Appeal Board denied them their rights to have their cases reheard before the Board as required under r 26 of the Control of Rent (Malacca) (Rent Tribunal and Appeal Board) Rules 1970 and that the Appeal Board failed to consider the grounds of appeal.

Held, allowing the application: (1) in the instant case, no records of the proceedings before the Appeal Board were available. Failure to produce such records must lead to the inference that none was kept and therefore no rehearing was accorded to P. A denial to P of their rights to a rehearing is an act clearly affecting the principle of natural justice and the judgment arrived at is, accordingly, a nullity; (2) in the instant case, the Appeal Board had merely considered one of the grounds of appeal of P. P were entitled to be heard on the other two grounds and the failure of the Appeal Board to consider them had deprived P of their chances to succeed in the appeal; (3) under r 27 of the 1970 Rules, the judgment of the Appeal Board must be pronounced on the date of hearing of the appeal or at a subsequent date. In the instant case, the order was made on 27 February 1987 whereas the hearing, according to the order, was on 18 February 1987. As the written judgment was undated, it was impossible to say whether it was pronounced on the date of hearing on 18 February 1987 or 27 February 1987; (4) taken together, the three errors of law given above amounted to a denial of justice to P which, accordingly, affected the jurisdiction of the board; (5) the learned judge, accordingly, allowed the application and quashed the order of the Appeal Board.

Kian Hin & Co (Applicant); Tan Leong Choon Sdn Bhd (Applicant) [1989] 1 MLJ 50 High Court, Malacca (Wan Yahya J).

These were appeals against the dismissal by a President and a magistrate of applications made by respective counsel at the commencement of hearing. The application was that the President or magistrate should disqualify himself from proceeding with the case on the grounds that he belonged to a service in which the Attorney General is said to be the head of the service. Since the Attorney General is also the Public Prosecutor and has supervision and control of these judicial officers it was alleged that there was a likelihood of bias.

Held: (1) if bias is alleged (other than pecuniary or proprietary bias) then there must be proved a real likelihood of bias and that reasonable suspicion of bias is insufficient. Thus, bare allegations (as done in the present case) are insufficient. A fortiori bare allegations before hearing had hardly commenced; (2) there is nothing in law to say that the Attorney General is the head of the service. In fact he cannot be by virtue of art 138 of the Constitution. Thus looking at the legal and administrative framework governing the service, the facts here did not warrant a conclusion of a real likelihood of bias; (3) based on the foregoing, the orders made in the lower courts in Criminal Appeal Nos 2 and 8 of 1984 should not be interfered with.

Maleb bin Su v Public Prosecutor; Cheak Yoke Thong v Public Prosecutor [1984] 1 MLJ 311 High Court, Seremban (Hashim Yeop A Sani J).

The applicant was charged on 3 March 1982 for criminal intimidation under s 506 of the Penal Code in Kelang Magistrate's Court. He applied for an order that his case be tried de novo by another magistrate. In support of his application he claimed that when his principal witness, one Miss VN Verny, was called to the witness stand by his counsel and entered the court, the magistrate on her own motion stated that that witness had already finished giving evidence. But when the said witness protested that she had not yet given her evidence the magistrate changed her words to the effect that that witness was in court throughout the prosecution's case and also during the recording of the evidence of the first defence witness. The Public Prosecutor in opposing the application relied on an affidavit of woman inspector Hazmi binte Baharudin who was the prosecuting officer in that case. In an affidavit affirmed by the said woman inspector on 1 August 1984, she denied the above allegation of the applicant and stated that the magistrate merely said that the witness Miss VN Verny was present in open court during the prosecution's case. Miss VN Verny had also written a letter to the learned Chief Justice on 8 November 1983 (exhibit DA1 attached to the affidavit of the applicant dated 21 June 1984) in which she alleged that the magistrate had said 'You were in open court when the first defence witness and during the time the prosecution witnesses were giving evidence', and after a denial by her the magistrate shouted angrily 'Don't deny, you are a liar, you don't lie'. The magistrate in a letter to the Chief Justice on 30 November 1983, stated that she did not deny that she had said, 'You must tell the truth, don't tell lies here (court)'. The applicant claimed that Miss VN Verny was a key-witness for the defence and he feared that her evidence might not be dispassionately evaluated by the said magistrate and that there might be a miscarriage of justice.

Held, allowing the application: (1) the test to be applied by magistrates is whether in the circumstances there would be the appearance of bias on their part, rather than actual bias, if they proceed to hear the case; (2) if reasonable and fair-minded persons sitting in the Kelang Magistrate's Court and following the proceedings, might question or doubt the fairness of the trial and think that there was a real likelihood of bias, and might go away thinking 'the magistrate was biased', then it would be preferable in the circumstances that the magistrate concerned should not sit further to hear the case; (3) this case should therefore be tried de novo before another magistrate in the Kelang Magistrate's Court.

David Anthony v Public Prosecutor [1985] 1 MLJ 453 High Court, Kuala Lumpur (Gunn Chit Tuan J).

The applicant was an advocate and solicitor. He was found guilty of misconduct by the Disciplinary Committee ('the DC') and asked to show cause before a court of three judges. The applicant took out a motion for an order of certiorari to quash the findings and determination of the DC on the ground, inter alia, that the respondent ('CS') was biased. CS was the chairman of the DC. The applicant alleged that CS had met with the applicant's legal assistant ('SS') twice during the currency of the DC's hearings and had threatened SS and suggested to SS that CS had made up his mind about the veracity of the witnesses. SS was a material witness for the applicant in the DC proceedings. At the commencement of the application for certiorari, CS made two preliminary objections. First, that the applicant was not entitled to rely on statements made in CS's affidavits as additional grounds in support of the applicant's case. Alternatively the applicant should amend the originating motion. Secondly, CS objected to the applicant's application to cross-examine CS on his affidavits. It was also suggested that the applicant was not entitled to subject the decision of the DC to judicial review as the matter would be considered by the court of three judges.

Held, quashing the findings of the DC: (1) no amendment to the notice of motion was required. If CS's own admissions were capable of providing additional legal grounds to impugn his decision, the applicant was entitled to rely on them; (2) the nature of the disputes between CS and SS on the one hand, and between the applicant and the CS on the other, made this an appropriate case that CS and SS submit to cross-examination. Grave injustice might have been caused to the applicant if he were not allowed to test the truth of CS's account of the conversations. The truth of SS's account was central to the applicant's primary case just as much as the truth of CS's account was central to his defence; (3) the 'show cause' proceedings were different from the judicial review proceedings, both with respect to the law as well as the procedure. In the former, the court went into the merits of the findings and determination of the DC on the basis of the evidence recorded by the DC. It did not hear oral evidence at all. In the latter, the court did not deal with the merits of the decision but with its legality on ordinary administrative law grounds. Bias, as an aspect of procedural impropriety, was one of the grounds. The DC's decision was therefore subject to judicial review notwithstanding that the applicant might still have the right to show cause; (4) there were discrepancies in SS's evidence, but this alone did not make him totally unreliable. Justice would not be done by making specific findings on the actual words and expressions uttered by CS or SS at the two encounters. A fair approach was to compare the two accounts on a broad basis, having regard to the fact that what was more important was not necessarily the precise words used by the parties but their impressions on the person to whom they were spoken in the context and the circumstances in which they were spoken. On that basis the court was not persuaded that CS had spoken all the words as recollected by SS nor that whatever words CS had used were intended to intimidate, threaten, warn or otherwise indicate to SS that he should not give evidence on behalf of the applicant; (5) bias may be actual or imputed. The important thing was not what the applicant might think about the judge but the appearance, as it presented itself to the objective observer. The court would set aside as void a decision of a tribunal which was infected by the appearance of a real likelihood of bias or if a reasonable and fair-minded person sitting in court and knowing all the relevant facts would have a reasonable suspicion that a fair trial for the applicant was not possible. A higher standard of conduct was required of judges. The standard required of the chairman of the DC under the Legal Profession Act (Cap 161) was just as high, and was commensurate with the standing of that office; (6) a decision maker should have no contact with any party to the proceedings or any witnesses in the absence of the other party or his counsel; (7) CS's advice given to SS at the first encounter ('You should tell the truth and as you may get into trouble if you don't') could reasonably mean or imply that CS did not believe SS would be an independent or impartial witness, because he was the applicant's witness. It did not matter whether at that time CS was aware of the nature and substance of the evidence that SS would be giving. Since CS had great experience in the conduct of trials and disciplinary inquiries, it must have occurred to CS that SS would not have been called to give evidence on behalf of the applicant unless his evidence was favourable to the applicant. Against the known background that SS was then an employee of the applicant, the advice of CS would have engendered a reasonable suspicion that CS had formed the view that there was a possibility of SS giving untruthful evidence in favour of the applicant; (8) similarly CS's utterances to SS at the second meeting might give the impression to reasonable people that SS's evidence was not being believed because of his relationship with the applicant. The reference, direct or indirect, to the relationship between SS and the applicant during the second conversation would have reinforced the perception of the state of mind of CS at the first encounter. The fact was that CS had talked to SS on both occasions on the same subject matter: SS's testimony at the inquiry, in a context when SS was an employee of the applicant; (9) there was evidence on which reasonable people might believe that CS might or could not bring an unprejudiced mind to the disciplinary inquiry. The contents of the two conversations gave an appearance of a real likelihood of bias; (10) although the other members of the DC had filed affidavits stating that CS had not influenced their decision, it would not be proper to count heads and say there was a majority of unbiased members. One has to look at the whole picture; (11) the duty of the chairman of the DC was to hear the disciplinary inquiry in the presence of both parties and their counsel. CS should not have given any advice to SS, even if it was intended as fatherly advice, or to express his views on the credibility of a witness except in the presence of counsel so that counsel would have had the opportunity of answering such views. CS had acted wrongly and contrary to the rules of natural justice in not hearing the other side; (12) there was a firm basis for quashing the findings and determination of the DC; (13) CS had participated in the proceedings and strenuously resisted the applicant's application, but only because the applicant had put his case at a level at which CS was given no choice but to defend his conduct and reputation. The applicant had failed to prove the main charge of actual bias in the form of the threat to SS. If the motion had been based solely on this charge, it would have been dismissed. The applicant had succeeded on a much less serious charge. In the circumstances, each party should pay his own costs.

Re Kalpanath Singh [1992] 2 SLR 639 High Court, Singapore (Chan Sek Keong J).

The plaintiffs appealed to the tribunal convened under the Padi Cultivators (Control of Rent and Security of Tenure Act 1967 ('the Act') against an order made by an inquiry officer regarding a certain piece of land ('the order'). At the hearing before the tribunal, a preliminary objection was raised, namely, that the appeal was filed out of time. The inquiry officer was called to give evidence for the purpose of ascertaining the date of the order. The tribunal agreed that the appeal was filed out of time and dismissed the appeal. The plaintiffs thereupon applied for a certiorari to quash the order of the tribunal. Counsel for the plaintiffs submitted that the tribunal had no jurisdiction to call the inquiry officer to give evidence, and that the order of the tribunal in dismissing the appeal was tantamount to confirming the order of the inquiry officer.

Held, dismissing the application: (1) the tribunal's act of calling the inquiry officer did not fall within the ambit of s 28(2) of the Act. In the context of the Act, the term 'evidence' stated therein refers to evidence of a witness in the proceeding before the inquiry officer. The inquiry officer was not a witness; (2) it was not proper for the tribunal to call the inquiry officer for the purpose of ascertaining the date of the order. In the circumstances, the parties should have applied for a certified copy of the order as permitted under s 27(4) of the Act. Such a document would have stipulated the date of the order; (3) in this case, the proceedings before the inquiry officer were concluded and the order made on 26 February 1991. The appeal was to be made within 14 days from the date of the order. The plaintiffs filed the notice of appeal on 10 April 1992, which was after the expiry of the 14-day period; (4) the tribunal had no jurisdiction to hear the appeal as it was not properly brought before the court. The order to dismiss the appeal was therefore proper; (5) the tribunal's order did not amount to confirming the inquiry officer's order as there was no hearing on any substantive issue.

Low Kim Yoon & Anor v Ooi Cheng Tau & Ors Originating Motion No 25-04-92 High Court, Kangar (Mohd Saari J).

In this case the plaintiff had been expelled from the membership of the defendant union. He claimed that he was not afforded any opportunity of stating his case before the executive council of the union before his expulsion. He alleged therefore that the purported expulsion was contrary to the principles of natural justice. He claimed a declaration that the expulsion was ultra vires an injunction restraining the defendants, their officers and servants from acting upon or enforcing the resolution and damages. It was argued, inter alia, on behalf of the defendants that the relief claimed should not be granted as the plaintiff had not exhausted the domestic remedies available to him by appealing to the annual or extraordinary general meeting against his expulsion.

Held: (1) the resolution of the executive council to expel the plaintiff could not be supported and was ultra vires as being contrary to natural justice in that the executive council had not given the plaintiff an opportunity of stating his case before them and had not acted in the matter of the said resolution in a judicial manner; (2) there was no contractual provision in this case requiring domestic remedies to be exhausted before resort to the courts and therefore the plaintiff was entitled to the reliefs claimed.

Visvasam v Singapore Toddy Tappers' Union [1968] 2 MLJ 205 High Court, Singapore (Chua J).

A was a public accountant who practised in partnership with two others. The firm was appointed as auditors of BC Ltd. This company was investigated by the authorities, resulting in prosecutions against two officers. A letter of complaint was sent by the Commercial Crime Division of the Crime Investigation Department to the Singapore Society of Accountants ('the society'). It summarized the investigations into BC Ltd and referred to what it described as the 'deep involvement' of A with BC Ltd. It finally expressed the view that in his involvement he 'had failed to take reasonable care and skill', and 'could not have maintained a position of independence required of an auditor in order to be objective in forming and expressing his opinion on the accounts of BC Ltd'. The complaint was laid before the society's investigation committee, which in turn referred it to the disciplinary committee, which then held an inquiry. The disciplinary committee ordered A to be removed from the Registrar of Accountants as a result of two charges. He was suspended for various periods on three other charges. A appealed to the High Court.

Held, allowing A's appeal on all the charges: (1) the procedure governing such appeals to the High Court is the same as for appeals to the High Court from the decisions of subordinate courts in civil matters. The appeal is in the nature of a rehearing; (2) the court must determine for itself what acts or omissions amounted to professional misconduct which fell within the range of offences set out in the section under which A was disciplined, and whether on a review of the evidence A was guilty of any of them. It may well be that an act or default which was discreditable to an accountant need not necessarily have arisen out of his professional work as an accountant, but it should nevertheless have been an act which would have brought discredit to him as an accountant or to the profession as a whole; (3) the court was of the opinion that a member of the society would have been guilty of gross neglect in the performance of his professional duties if, having regard to all the surrounding circumstances at the time, he did not exercise the skill and care that a reasonable client would have been entitled to expect of him; (4) for any member of the society to be guilty of grave impropriety in a professional respect, there must have been the same element of moral turpitude in the misconduct complained of, to the extent that it would have been regarded without hesitation by other accountants as being so disgraceful that his continued membership of the profession would immediately be called into question; (5) in view of the seriousness of the allegation, the committee carrying out the inquiry would have to apply a high standard of proof and not arrive at a finding of guilt merely on a balance of probabilities; (6) the committee's finding on the first charge of gross neglect in the performance of professional duties was perverse and the finding must be set aside; (7) the third and sixth charges revolved around the central question of the duties and responsibilities of a company auditor in the audit of a company's accounts. In the first place, a person practising as an accountant may be subject to certain statutory duties imposed by law under s 207 of the Companies Act (Cap 50). The accountant will have duties and responsibilities which arise from the contractual relationship between him and his client. The contract will record the nature and extent of his work and the standard of performance expected of him. Where the extent of the audit is not described in detail, the nature of his duties and responsibilities as an auditor may have to be resolved by the court, which must then have regard to the circumstances of the particular case and to precedents and accepted standards of current professional practice; (8) in particular, a court which is determining a case must guard against hindsight and only take into account knowledge available to the auditor at the time of default; (9) the fact of the matter is that A and his firm were up against people who were not only completely unscrupulous but were also highly skilled in covering up their fraudulent activities. They were able, for a long time, to almost frustrate the entire investigating machinery of the MAS. So far as A and his firm were concerned, it would not be possible to come to a decision even on their culpability without taking into full account the circumstances in which they were placed. In the court's judgment, it would be unsafe and unsatisfactory to allow the findings on the third and sixth charges to stand, and they must be set aside; (10) the seventh charge was that A accepted the appointm ent as financial consultant to BC Ltd, and as the same time also accepted the appointment of his firm as the auditors of BC Ltd. By doing so, it was alleged that he placed himself in a position of conflict between his duties as a financial consultant and his duties as auditor, thereby committing an act which was discreditable to an accountant. However, there was no evidence, other than the resolution to appoint A, that BC Ltd had acted further on the resolution or that A had in fact taken up the appointment as financial consultant, or had ever acted in any capacity as a financial consultant. The committee nevertheless found A guilty on this charge, on the ground that he ought to have refused the appointment or resigned the office immediately thereafter. The society has not issued any code of ethics or practice guidelines to its members on this subject, and in their absence the committee's finding was a clear misdirection of themselves on the law on this point; (11) whether or not a conflict of interest will arise in any particular case will depend on the nature of the appointments, and the functions required to be carried out under them, and more often than not on the manner in which the functions are to be performed. The question of conflict of interest is one of substance and a court must be satisfied in each case that real mischief and real prejudice will in all human probability result. There was no evidence at all to support the finding of guilt on the seventh charge; (12) if it does not do so, it will be acting ultra vires; (13) a practical test could have been if reasonable people, on hearing about what he had done, would have said without hesitation that as an accountant he should not have done it;the auditor's vital task is to take care to see that errors are not made, be they errors of computation, or errors of omission or commission, or downright untruths. In common with other professional men, the standard required of an accountant in carrying out an engagement is that of reasonable skill and care of an ordinary skilled man carrying out the same engagement. Defaults must be considered in the light of the surrounding circumstances, having regard also to professional codes of standards and guidelines and to evidence of general professional practice;domestic tribunals such as this, which derive their authority from Parliament, usually have a wide discretion to carry out inquiries in accordance with their own rules of procedure. At every stage, however, they must observe what are commonly regarded as rules of natural justice; an offender brought before a tribunal must not only be given a hearing, but he must also be given a fair hearing. In our system of justice, the process is adversarial and not inquisitorial; this necessarily means, in the case of a disciplinary committee of a professional body, that it must approach the issues before it with an open mind. In hearing evidence, a disciplinary committee may seek clarification on points in the evidence which are not clear, but in doing so, it must at all times avoid descending into the arena, and joining in the fray. It is not there to supplement the prosecution. It must remember that, in conferring statutory authority on it, Parliament intended that it will act fairly;the court felt from perusing the transcript that, in trying to discharge its responsibilities effectively, the committee went well beyond its authority to carry out a 'due inquiry' under the Act, and began conducting an inquisition of its own, aimed at securing evidence to justify a finding of guilt. The committee appeared from the transcript at several stages of the proceedings to have been so carried away by its misinterpretation of its own role that it was actually conducting the proceedings on its own. The manner in which the committee went about its inquiry was clearly against the rules of natural justice and therefore ultra vires, and on this ground alo ne any finding and sentence by it would have been void.

Leslie Wong Kok Chin v Singapore Society of Accountants [1990] 1 MLJ 456 High Court, Singapore (Yong Pung How J).

The plaintiff was a professional jockey who had a jockey licence granted by the Malayan Racing Association (the MRA). He was disqualified from riding as a jockey for a period of five years effective from 6 September 1990. After five years had lapsed, on 15 January 1996, the plaintiff applied to the MRA for a jockey licence, stating that he had fully served his time which ended on 8 January 1996. On 26 January 1996 after considering his application, the MRA Licensing and Disciplinary Sub-Committee (the L & D committee) rejected it and this was endorsed by the Committee of the MRA (`the committee'). This decision was conveyed to the plaintiff without discussing any grounds for their rejection. The plaintiff appealed to the committee to reconsider their decision. The MRA replying to the plaintiff of their agreement to reconsider the plaintiff's application, but required the plaintiff to be present before a special committee of the MRA on a specific date `to show cause why your [the plaintiff's] licence should be reinstated'. The plaintiff refused. In the absence of the plaintiff, the committee met and dismissed the plaintiff's appeal. By this time, the plaintiff had filed before this court for a judicial review praying: (a) for a declaration that the decision of the L & D committee and the endorsement of this decision by the committee in rejecting the plaintiff's application for a jockey licence were wrong in law and therefore null and void; (b) that the respondents, being committee members and secretaries respectively of the MRA, did within a period of 14 days from date of the order issue a jockey licence to the plaintiff upon the plaintiff paying the appropriate registration fee for such licence; and (c) costs. The main contention of the plaintiff was that there was no procedural fairness practised by the respondents when they failed to give reasons for their decisions - this tantamounted to an abuse of natural justice - entitling the plaintiff to the reliefs sought. The respondents, while denying this and claiming their rights to non-disclosure of reasons for their decision, brought forth their objection to this court's jurisdiction to grant judicial review of the decisions of the L & D committee and the committee, which they said were from domestic tribunals.

Held, allowing the plaintiff's application: (1) there was no blanket restriction to judicial review of all decisions made by the MRA. There were decisions where circumstances of the case made it amenable to judicial review. These were in respect of those decisions handed down by the MRA where no contractual relationship could be established between the parties, and where the livelihood of the plaintiff was affected particularly in the trade or profession controlled and regulated by the respondents and of which the plaintiff was trained or had chosen to enter. In the light of the facts of this case and considering the plaintiff was a trained jockey where his livelihood was towards this nature of work, his application for judicial review of the decision of the MRA was permissible; (2) as disclosed from the facts of this case, the plaintiff was a trained jockey. In order to earn his living, he had to have a professional jockey licence issued by the MRA. Without it, there was no way he could participate in this profession - thereby depriving him of a livelihood. The plaintiff was therefore in the category of those whose deprivation of a livelihood would be affected by the decision of the MRA as well as those who had a legitimate expectation that their application would be considered and when rejected, reasons would be given. By rejecting the plaintiff without reasons attached would tantamount to a breach of procedural fairness and natural justice which entitled him to succeed in his first two prayers of his application.

Woon Kwok Cheng v HR Hochstadt & Ors [1997] 2 MLJ 795 High Court, Kuala Lumpur (James Foong J).

X, the employees of P, had brought to the attention of D, their union, the fact that P had not complied with art 26(4) of the award made by the Industrial Court. Their complaint was that they were not given a paid day-off by P following their having worked 16 hours on the days in question and that this was contrary to art 26(4) of the award of the Industrial Court. D, representing X, lodged a complaint with the Industrial Court. D contended that the one-hour lunch break should be included in the calculation of the hours worked. The Industrial Court found in favour of D and P applied to the High Court for an order of certiorari to quash the award. The High Court dismissed the application and P appealed to the Supreme Court. P contended that X worked only 15 hours on the days in question and that the one-hour lunch break should not be included in the computation of the hours worked. Accordingly, X were not entitled to be given a paid day-off the following day.

Held, allowing the appeal: (1) in this case, the real issue before the Industrial Court was the interpretation of art 26(4) of the award read with art 14. D should, accordingly, have applied to the court under s 33 of the Industrial Relations Act 1967 for interpretation and ought not to have made a complaint under s 56 alleging non-compliance when its interpretation of the terms of the award was disputed by P; (2) there was really no ambiguity in the terms of the award in the light of art 14 which expressly excluded lunch breaks; (3) in the circumstances, as there was a jurisdictional error on the face of the record, the Supreme Court allowed P's appeal.

Dragon & Phoenix Bhd v Kesatuan Pekerja-pekerja Perusahaan Membuat Texstil & Pakaian Pulau Pinang & Anor [1991] 1 MLJ 89 Supreme Court, Malaysia (Lee Hun Hoe CJ (Borneo).

A applied to the High Court for leave to apply for a certiorari to quash an Industrial Court's award which dismissed A's claim that he was wrongly dismissed by D1. A also applied for leave to apply for a mandamus directing the Industrial Court to reconsider his claim. A was formerly D1's employee. D1 conducted a domestic inquiry and then dismissed A. A therefore argued that D1 should not conduct the domestic inquiry because this would be contrary to the rule of natural justice that one should not adjudicate a matter in which one has an interest.

Held, dismissing the application: (1) the rule of natural justice prohibiting a person from adjudicating a matter in which he has an interest is only a general principle which is not applicable in a domestic inquiry. If otherwise, this would cause absurdity in the sense that an employer cannot hold an inquiry so as to decide whether or not to dismiss his employee; (2) there exists a distinction between errors of law within jurisdiction and errors in excess of jurisdiction. In this case the Industrial Court had not committed an error of law outside its jurisdiction; (3) A had also failed to show that his application was prima facie not frivolous and vexatious.

Pritam Singh v Triptipal Singh & Co & Anor [1991] 3 CLJ 2103 High Court, Penang (Abdul Hamid JC).

An employment dispute between the applicant and the respondent was referred to the Industrial Court by the Minister of Labour for adjudication, and Award No 56 of 1989 was handed down. The respondent applied for an order of certiorari to remove the case to the High Court for the purpose of quashing a portion of the award made by the Industrial Court on the grounds that: (a) a retrospective order effective from 1 January 1988 made by the Industrial Court was in breach of s 30(7) of the Industrial Relations Act 1967; and (b) the biased computation of CPI increase in the Award No 9 of 1989 was used as authority to apply to the present award.

Held, dismissing the application: (1) the word 'may' in s 30(7) of the Industrial Relations Act 1967 is to be read as discretionary, and at the most directory, since the restriction imposed on the power to make the award retrospectively is applicable only in cases where the parties do not agree on the effective date of the agreement. Further, if the implementation date in respect of rates of pay is not the same as the other matters, it would lead to absurdity as the rates of pay to a certain extent hinge on the other matters. In addition, it does not make it extraordinarily difficult for the applicant to keep the industry going by such a retrospective order (earlier by two weeks); (2) the Industrial Court has the power to make a retrospective order of the award though restricted to not earlier than six months from the date on which the dispute was referred to the Industrial Court. At most, there is only an error of law committed by the Industrial Court which does not go to lack or excess of jurisdiction; (3) the error committed by the Industrial Court in this case constitutes an error of law on the face of the record and effectively ousts the jurisdiction of the High Court to quash the part of the award; (4) as regards the computation of the CPI increase, the findings of the Industrial Court cannot be said to be so perverse and so devoid of plausible justification that no reasonable body of persons could have reached it. It is to be noted that the Industrial Court was not computing on an absurd percentage though it could make errors in the computation. What the Industrial Court did was to be consistent in its computation and not depart from its earlier computation, which the applicant wanted the Industrial Court to do. The Act does not specify the formula for the computation on the rates of pay and the legislature thought it best to leave it to the Industrial Court to find the basis for such computation.

Sarawak Commercial Banks Association v Sarawak Bank Employees' Union [1990] 2 MLJ 315 High Court, Kuching (Haidar J).

The appellant was a wholly-owned subsidiary of the State Economic Development Corporation of Selangor. It owned and managed several businesses, among others a recreational club called Kelab Darul Ehsan (`the club'). On 24 August 1985, the respondent commenced his employment with the appellant and was subsequently appointed first as the assistant manager of the club and later as its food and beverage (`F & B') director. On 13 November 1987, the chief executive of the club informed the respondent that the post of F & B director at the club would be abolished. The club was however prepared to appoint the respondent as the F & B manager with a 37% deduction in salary. The respondent was not minded to accept this offer as stated in his letter to the club dated 14 November 1987. There was however a misunderstanding in the correspondence between the parties with the end result that the appellant retrenched the respondent. The respondent made representations to the Director-General of Industrial Relations. The Director-General subsequently reported the matter to the Minister who referred the respondent's representations to the Industrial Court. The respondent claimed that he had been terminated from employment without just cause. The appellant sought to justify the respondent's termination on the ground that the post held by him had been abolished in consequence of a reorganization and rationalization of management postitions within the appellant's group of companies. The Industrial Court dismissed the respondent's claim. The respondent however subsequently moved the High Court for certiorari and had the award quashed. The High Court also issued mandamus directing the Industrial Court to re-adjudicate the dispute. The appellant appealed against the decision of the High Court, contending that: (i) the learned judge exceeded his role in judicial review proceedings and actually exercised appellate jurisdiction when he quashed the award; and (ii) even if the learned judge kept well within the limits of the jurisdiction function, he was nevertheless wrong in the conclusions he arrived at. A further issue raised by the court was whether the court had jurisdiction and power to substitute the order of remission with an award of fair and reasonable compensation.

Held, dismissing the appeal: (1) the learned judge was entirely aware of the nature of the jurisdiction he was called upon to exercise. An examination of the merits of a decision followed by a result that no reasonable person or body similarly circumstanced could have come to the conclusion in question and a making of the decision that ought to have been made in the first place, would not occasion an abuse of judicial power by an unjustified or unauthorized assumption of appellate power in certiorari proceedings. There may, however, be cases in which, for reasons of public policy, national interest, public safety or national security, it may be wholly inappropriate for the courts to attempt any substitution of views. The present case, however, did not fall within any of these exceptions. The learned judge was therefore entitled to carry out an objective examination of the factual matrix presented to the Industrial Court to ascertain whether a reasonable tribunal similarly circumstanced would have come to the like conclusion; (2) the learned judge came to the right decision in finding that: (i) the doctrine of estoppel was not to be applied in industrial adjudication; (ii) the Industrial Court was wrong in upholding the respondent's termination on a ground not advanced by the appellant; and (iii) not only did the appellant fail to allege that there were losses, it singularly failed to lead any evidence in support of its claim that the post previously held by the respondent had been abolished. There was no error therefore in issuing the certiorari and in quashing the award of the Industrial Court; (3) the Federal Court had the jurisdiction and the power to grant relief to the respondent. In this case, however, since reinstatement was not the proper remedy, the respondent was granted compensation.

Kumpulan Perangsang Selangor Bhd v Zaid bin HjMohd Noh [1997] 1 MLJ 789 Supreme Court, Kuala Lumpur (Lamin PCA, Anuar CJ (Malaya).

The appellant is a union to which K belonged and the respondent was the club for whom K worked. The present case arose out of a dispute between the appellant and the respondent over the alleged dismissal of one K as a swimming instructor by the respondent. The Industrial Court, which heard the dispute in the first instance, held that K's work as a swimming instructor was a contract for service and it accordingly dismissed the appellant's claim that K be reinstated as a swimming instructor. The appellant invoked s 33A of the Industrial Relations Act 1967 and referred certain questions of law to the High Court. The real question in issue is whether K's contract as a swimming instructor was a contract of service or a contract for service.

Held, dismissing the appeal: (1) The question as to whether K's contract as a swimming instructor was a contract of service or a contract for service is inevitably a mixed question of law and fact; (2) the test to be applied in reviewing the award of the Industrial Court is that stated by Lord Widgery CJ in Global Plant v Secretary of State for Health and Social Security [1971] 23 WLR 269. The elements of the test are: (a) whether the decision appealed against contained any false proposition of law ex facie (b) whether the decisions reached were supported by no evidence (c) whether the facts found are such that no person, acting judicially and properly instructed as to the relevant law, could come to the decisions arrived at; (3) applying the test to the instant case, the chairman's award is not open to attack on any one of the above grounds.

Club Employees Union Selangor v Lake Club [1988] 3 MLJ 173 High Court, Kuala Lumpur (VC George J).

The applicant, a qualified person under the Singapore Legal Profession Act (Cap 161, 1985 Ed), is a barrister-at-law. He practised in Sarawak for about 19 years. On 4 November 1986, the applicant, after having been informed by the Board of Legal Education of the statutory requirements for the admission of the applicant as an advocate and solicitor of the Supreme Court of Singapore wrote to the board for exemption from having to serve the period of pupillage required under s 12(2)(a) of the Act. The board replied on 8 November 1986 granting the request of the applicant and informing him of the need to attend the Practice Law Course. The applicant thereafter also came to know that he had to pass an examination after the course. The applicant sought exemption from the examination, but the board replied on 26 August 1987 that it was unable to grant such exemption. The applicant, being dissatisfied with the board's replies, applied to the court for review of the board's 'two decisions', namely that: (a) the interpretation of the conditions specified by the respondent board for the petitioner's call to the Singapore Bar contained in their letter dated 8 November 1986 required the petitioner to pass any examination as a condition precedent to the call and (b) the respondent 'is unable to grant the petitioner exemption under s 11(2) of the Act by reason of his experience (which has been essentially limited to practice in Sarawak)'.

Held: (1) in the court's view, the applicant's complaint that the 'decision' of the board in their letter of 8 November 1986 had misled him to act to his detriment was wholly misconceived; (2) the court was not persuaded that the board's decision was unreasonable under the Wednesbury principle as the board applied the very considered that was prescribed by s 11(2) of the Act, which is the experience of the qualified person.

Re Tai Choi Yu [1988] 1 MLJ 375 High Court, Singapore (Chan Sek Keong JC).

This was an appeal against the order of the Board of Architects cancelling the certificate of registration of the appellant as an architect and removing his name from the register of architects. The offence alleged against the appellant was one under byelaw 13(26) of the Architects Byelaws 1941, for signing or putting his signature to plans not prepared by him or by his staff under his supervision for the purpose of obtaining the sanction of the local authorities.

Held: byelaw 13 was ultra vires the provisions of the ordinance and was null, void and invalid. The institution of proceedings therefore against the appellant was completely unjustified and the appeal must be allowed.

Chan Fook Wah v Board of Architects [1965] 2 MLJ 7 High Court, Singapore (Winslow J).

[Annotation: See also Lim Ko & Anor v Board of Architects [1965] 2 MLJ 203.]

This was an appeal by way of originating motion to set aside the order of the Board of Architects directing that the appellant's name be struck off the register. The appellant was a registered architect under the provisions of the Architects Ordinance1941, and substantially the case against him was that he had charged fees less than the scale of fees fixed by the Board of Architects and had failed to exercise adequate supervision of the building in question. There were a number of grounds argued on the appeal all of which are set out and dealt with fully in the judgment. For the appellant it was contended, inter alia, that byelaw 13(14) of the Architects Byelaws 1941 (which deemed it to be infamous conduct under s 8 of the Architects Ordinance 1941, 'to deviate from by charging less than the scale of fees authorized by the Board of Architects except with the consent of the Board in writing') is invalid as being repugnant to s 8(1) of the ordinance and therefore ultra vires and void.

Held: and they purport to deprive an architect of the right not to have his conduct stigmatised as 'infamous' except by the judgment of his professional colleagues after a full consideration of the facts. On the question of what is the duty to supervise which an architect owes to his client when the client is an owner-builder, Held: (1) an architect's duty to an owner-builder is to perform the work which it has been mutually agreed that he should do, ie his duty to his client is governed by his contract; (2) byelaw 13 is invalid by reason of the words 'and shall be deemed to be conduct which is infamous in a professional respect under s 8'. These words purported to take away from the board a duty with which the Legislature has entrusted to them in a disciplinary case;the correct procedure for appealing to the High Court under the provisions of s 8(3) of the Architects Ordinance 1941 is by way of originating motion.

Re Lee Kian Soo [1953] MLJ 195 High Court, Singapore (Brown J).

This is an application in the name of one FTC, a director of an import and export company ('the company') for an order of prohibition to prohibit the Director-General of Customs and Excise ('the DG') from further proceeding to recover S$130,241.30 by deduction from bankers' guarantees lodged by the company with the Customs and Excise Department ('the Customs') as security for charges payable under the Customs Act (Cap 70) ('the Act'). On or about 12 December 1987, the applicants removed a large quantity of cigarettes ('the goods') from a licensed warehouse and transported them to the port area of the Port of Singapore Authority for loading on board a vessel for export. This removal was supervised by Customs but the loading of the goods on board the vessel was not. In accordance with regulations, the applicants delivered to the Customs three outward declarations showing that the cigarettes had been loaded on board the vessel. Later, however, whilst in the course of reconciling outward declarations and ships' manifests supplied by shipowners or their agents, a customs officer discovered that the goods had not been entered in the manifest of the vessel supplied by a company called TTS who were the agents of the vessel. The DG then made inquiries with TTS and later asked the applicants to provide evidence that the goods had been exported. The applicants submitted an undated document signed by a Sibu businessman certifying that on 15 December 1987, he had received and paid for the said goods. Correspondence between the DG and the applicants concluded with the DG stating that they were satisfied that the goods were never exported and requested the applicants to pay duty amounting to S$130,241.30. The applicants then took out an ex parte application for leave to apply for an order of prohibition.

Held, allowing the application: (1) s 27 therefore was not intended to affect the court's jurisdiction in judicial review proceedings; (2) the test as to amenability to prohibition is whether the tribunal concerned is exercising a public duty. The DG is a public officer appointed to discharge public duties under the Act and is therefore amenable to an order of prohibition; (3) the correct interpretation of 'evidence' in the context of reg 12(6) of the Customs Regulations 1979 is that the DG has a discretionary power to assess and evaluate all the evidence and decide whether such evidence is sufficient or otherwise to prove that goods have indeed been exported. This interpretation gives effect to the purpose of the second limb of reg 12(6) which provides the two situations giving rise to a liability to pay customs duty; (4) it is a tax statute. Whether dutiable goods have been exported is a question of fact. Whether that particular fact exists depends on whether it can be proved by evidence and not by belief. Regulation 12(6) provides that the exporter has to pay customs duty on dutiable goods which he cannot account for to the satisfaction of the DG. That requires the exporter to produce evidence to account for the export in order to satisfy the DG; (5) the expression 'satisfaction' in reg 12(6) is not to be measured in terms of reasonableness but in terms of justification on the evidence. Regulation 12(6) is a 'precedent fact' case. The DG must establish the fact of non-export before the exporter becomes liable for customs duty. The function of the court in such a case is not to decide whether there was evidence on which the DG could reasonably have come to the decision (provided there was no breach of natural justice) but to decide whether the decision was justified on the evidence; (6) however, since the applicants did not argue on the basis that reg 12(6) is a 'precedent fact' case, the applicants' case was examined on the basis that it is a case where the DG has a discretionary power to decide whether the evidence produced by the applicants accounted for the export of the goods. The test of validity of the DG's demand is whether the DG could reasonably have come to his decision on the evidence before him. There must be a factual basis for making the evaluation and the court is entitled to inquire into the existence of the facts upon which the evaluation was made; (7) the applicants have now produced ample evidence of export which has never been investigated by the customs officer. Even assuming that the court is not entitled to have regard to the applicants' evidence produced after December 1988, the applicants had tendered evidence that could prove the fact of export of the goods. But the DG did not believe TKM (a director of the applicants) or his documents, and did not interview TKM or examine the documents. He preferred the evidence which tended to prove non-export to evidence which tended to prove the contrary, without an investigation of the latter evidence; (8) s 27 of the Government Proceedings Act (Cap 121) affects 'civil proceedings' and does not include judicial review proceedings;the condition of 'satisfaction' under reg 12(6) is concerned with an inquiry as to a fact, ie whether dutiable goods have been exported. The Act is a law which imposes customs duty on dutiable goods imported into Singapore;the customs officer had misdirected himself on the nature and effect of the evidence required under reg 12(6) to prove the export of the goods. This was a misdirection as to the law. He also failed to investigate fully the evidence produced by the applicants. He did not give a fair hearing to the applicants. On the affidavit evidence produced by the applicants in these proceedings, the DG could not reasonably have come to his conclusion without hearing.

Re Fong Thin Choo [1992] 1 SLR 120 High Court, Singapore (Chan Sek Keong J).

Re Fong Thin Choo [1992] 1 SLR 120 High Court, Singapore (Chan Sek Keong J).

Wee Choo Keong v Lee Chong Meng & Anor [1996] 3 MLJ 41 Court of Appeal, Kuala Lumpur (Siti Norma Yaakob, Abu Mansor and Abdul Malek Ahmad JJCA).

Tengku Razaleigh bin Tengku Mohd Hamzah v Election Judge For Election Petition No 33Ð6Ð1995 & Ors [1996] 4 MLJ 66 High Court, Kota Bharu (Arifin Zakaria J).

The Industrial Court, in an award, held, inter alia, that P should pay full wages to its employees for Sundays and public holidays during a shutdown period. The shutdown period was caused by a fall in orders faced by P. The Industrial Court held that there was a lacuna situation because neither the collective agreement nor the law provided for payment of shutdown wages. The Industrial Court nevertheless held that P should pay shutdown wages by applying, as a guide, an agreement which was not part of the collective agreement and P's previous practice of awarding full wages for Sundays and public holidays during shutdown periods. P applied for a certiorari to quash this part of the award. At the hearing, D's counsel conceded that the agreement relied on by the Industrial Court did not include Sundays and public holidays. D, however, argued that there was no lacuna situation and there was a legal basis for the Industrial Court to award shutdown wages for Sundays and public holidays.

Held, dismissing the application: (1) P did not disclose that the contract of service provided for payment of full wages for weekdays during the shutdown period. P therefore benefitted from the award taken as a whole. Since certiorari is a discretionary remedy, the court in the exercise of its discretion would refuse certiorari because P had not suffered any injustice; (2) the collective agreement provided for payment of a fixed rate of monthly wages regardless of availability of work and it did not empower P to reduce the monthly wages on the ground that there was no work available as a result of a fall in orders. The award therefore had a legal basis in contract; (3) under the Employment Act 1955 a contract for service for an unspecified period shall continue in force until terminated by notice and an employer is required to pay his employees wages by the first week of each month. There is no provision in the 1955 Act authorizing an employer to deduct wages for shutdown periods. Any deduction from wages for shutdown periods would accordingly be illegal; (4) at common law, if an employee is ready to perform his services, he is entitled to the wages although his employer has no work for him; (5) the award has basis under both the 1955 Act and the collective agreement. The Industrial Court's conclusion that there was a lacuna in the law was an error of law within its jurisdiction. The High Court has no jurisdiction to quash such an error under s 33B of the Industrial Relations Act 1967; (6) the Industrial Court has power to create new rights and obligations which it considers essential for keeping industrial peace under s 30(4), (5) and (6) of the 1967 Act. Such a power is not limited to dismissal and collective agreement disputes but refers to trade disputes generally.

Viking Askim Sdn Bhd v National Union of Employees in Companies Manufacturing Rubber Products & Anor [1991] 2 MLJ 115 High Court, Penang (Edgar Joseph Jr J).

The first plaintiff is a life member of the Malaysian Chinese Association ('the association'), chairman of its Muar division and chairman of a branch of the association which falls under the Muar division. He is also a senator. The defendant is the secretary-general of the association which is a political party registered under the Societies Act 1966. The central committee of the association had set a timetable for the association's elections. The branch elections were to be held on 20, 21 or 22 April 1990; divisional elections on 18, 19 or 20 May 1990 and general elections on 28 and 29 July 1990. The first plaintiff discovered in March that there were fictitious members in six branches of the Muar division. He complained of this to the steering committee which was set up to conduct and supervise the elections. The steering committee decided to set up an investigation team to look into the complaints, which investigations have yet to be completed at the time these applications were heard. The steering committee later decided to suspend the Muar division elections until a thorough investigation into the complaints had been completed. The plaintiff as chairman of the Muar division election steering committee then sent a letter to the steering committee giving the latter seven days to take over the election of the Muar division and to immediately conduct elections. There was no reply to the letter. The plaintiffs claim, inter alia, a declaration that the suspension decision is null and void, an order that the defendant and the association forthwith take over the conduct of the divisional elections, an injunction to restrain the defendant from conducting elections at the annual general assembly and an injunction to restrain the defendant and the association from expelling or suspending the plaintiffs from the association until the final determination of this suit.

Held, dismissing the plaintiffs' applications: (1) by taking this course the plaintiffs forfeited any right they may have had of being heard in regard to the decision to suspend the election in question; (2) the decision to suspend the divisional elections was not directed at and did not affect the plaintiffs exclusively. They had not been expelled from the association without being given a chance to be heard. The decision affected all the members of the Muar division and its branches and in the circumstances, it would have been unreasonable to have expected notice of hearing to be given to all those affected by the decision. It is all the more so that a person who felt aggrieved by the decision should have taken steps under art 175; (3) the decision to suspend the Muar divisional elections was within the power and authority of the steering committee and the Presidential Council which upheld the decision. The decision was incidental to the administration of the affairs of the association; (4) the first plaintiff had an automatic right by virtue of art 33.3 to stand in the Central Committee elections at the annual general assembly as he is the chairman of a division and a Member of Parliament. The suspension did not therefore prevent him from standing in the annual general assembly elections; (5) the plaintiffs have a prima facie right as members of the association to have the Muar divisional elections conducted before the general assembly elections, which in the absence of anything else they should be able to enforce. But this right is not enjoyed in isolation but is intertwined with the rights of all members of the branches under the Muar division. None of these other members have complained about the suspension decision but instead are represented by the defendant and must be taken impliedly to support the defendant's stand; (6) the elections to be held at the general assembly will determine the leadership of the association and would have a bearing on the nation's general elections when held. The association must hold its elections in the interest of its members, to be in readiness with an up-to-date representation and leadership, for the general elections. This has to be weighed against the individual aspirations of the plaintiffs at the divisional level in Muar. The balance of convenience must come down heavily in favour of the defendant in his capacity as representative of all the members of the association, save the plaintiffs; (7) as to the quia timet injunction, there is no evidence of threatened wrong. The first plaintiff has merely affirmed that he honestly believes that the association will resort to harassment and intimidation without stating the grounds of his belief as required under O 41 r 5(2) of the Rules of the High Court 1980. A plaintiff complaining of threatened invasion of a legal right must establish not only that there is such a right, but that that right has been infringed, that further infringement is threatened to a material extent, and in respect of damage which the plaintiff has not suffered as yet, that it is likely to accrue within a reasonable time. There must be proof of imminent danger, if no actual damage is proved, and there must be proof that the apprehended damage will, if it comes, be very substantial. In this case, all that the first plaintiff has effectively said is 'timeo', which is not sufficient'; (8) a mandatory injunction is given only in rare circumstances and if the court is able to tell the person against whom the injunction is sought, exactly what it had to do in order to comply with it. In this case, the court does not know the magnitude or extent of the problem in regard to fictitious persons in the membership register, or what can be done to resolve the problems. There is no way that the court can supervise the effective working out of the mandatory injunction if it is given; (9) when the decision to suspend the Muar divisional elections was communicated to the plaintiffs, the plaintiffs did not avail themselves of their right to be heard in answer thereto, as provided for in arts 174 and 175 of the association's constitution. The proper course for the plaintiffs to have taken was under art 175, which provides that no member shall take any party matters to court until he has exhausted all possible avenues or remedies provided by the provisions of the constitution. Instead, the first plaintiff gave the seven-day ultimatum to the steering committee;the court has no jurisdiction to deal with the alternative injunction sought, to restrain the holding of the elections at the general assembly, by virtue of s 18C of the Societies Act 1966. The plaintiffs themselves have not questioned the validity of the decision to hold those ele ctions.

Senator Lau Keng Siong & Anor v Ng Cheng Kiat [1990] 3 MLJ 417 High Court, Muar (Richard Talalla JC).

Re Ong Eng Guan [1959] MLJ 92 High Court, Singapore (Rose CJ).

Alkaff & Co v The Governor-in-Council & Ors [1937] MLJ 211 Court of Appeal, Straits Settlements (Terrell Ag CJ, Thomas CJ (FMS).

In this case the applicant applied for an order under s 44 of the Specific Relief Act 1950, that the District Native Court do hear and determine the application of the applicant for extension of time to lodge an appeal.

Held: (1) the District Native Court is not a court subordinate to the High Court and the High Court does not exercise supervisory power over it; (2) the High Court has therefore no jurisdiction to entertain the motion of the applicant.

Ongkong anak Salleh v David Panggau Sandin & Anor [1983] 1 MLJ 419 High Court, Kuching (Seah J).

The applicant was arrested on suspicion of being a drug dependant. The magistrate ordered the applicant to be remanded at a drug rehabilitation centre for two years to undergo treatment and rehabilitation under s 6(1)(a) of the Drug Dependants (Treatment and Rehabilitation) Act 1983 ('the decision'). The applicant applied for a certiorari to quash the decision firstly, on the ground that the magistrate had failed to consider the rehabilitation officer's report as required under s 6(3) of the 1983 Act and, secondly, the magistrate had failed to comply with s 6(4) of the 1983 Act when he did not have regard to the circumstances of the case and the character, antecedents, age, health, education, employment, family and other circumstances of the applicant. In answer to the application for a certiorari, the magistrate affirmed two affidavits stating that he had considered the matters specified in s 6(3) and (4) of the 1983 Act.

Held, allowing the application: (1) the argument that an order under s 6(1)(a) of the 1983 Act was not amenable to judicial review, was not accepted; (2) it was not open nor appropriate for the magistrate to subsequently explain or add reason to his decision when his judgment showed that he had not apparently done so. The magistrate's affidavits would therefore be disregarded since his judgment itself formed the focal point of argument; (3) this, however, does not mean that under no circumstances can a presiding magistrate make an affidavit when his decision is the subject matter of judicial review. In certain situations, the magistrate may be justified and indeed entitled to affirm an affidavit or even to appear at the hearing when his character or bona fides is called in question; (4) in this case, the magistrate gave no reason for the decision. It was also not shown that the magistrate had considered the matters specified in s 6(3) and (4) of the 1983 Act. Nor was it stated in the note of proceedings that the magistrate was satisfied that the applicant was required to undergo treatment and rehabilitation under s 6(1)(a) of the 1983 Act; (5) it is essential that magistrates give reasons for their decisions. It is incumbent on the magistrate to indicate in his judgment that s 6(3) and (4) of the 1983 Act have not been overlooked. No particular form of words is needed for this purpose. What is necessary is that the magistrate's mind should be clearly revealed that he has considered such matters. The absence of any recording that such matters had been considered, indicates the possibility that such matters may not have influenced the mental process of the magistrate in arriving at his ultimate decision; (6) in this case it had not been shown that the magistrate had considered the requisite matters as required by s 6(3) and (4) of the 1983 Act before making the decision; (7) s 24 of the 1983 Act does not have the effect of relieving a magistrate from the need to record anything in coming to a decision. Section 24 of the 1983 Act deals with the jurisdiction of magistrates in relation to areas or localities for exercising the powers under certain sections of the 1983 Act.

Re Haji Sazali bin Datuk Haji Noor Tahir [1992] 2 MLJ 864 High Court, Kuching (Chong Siew Fai J).

The appellants, a qualified architect registered in Singapore, was found guilty of improper act or conduct for having undertaken to work for the Chartered Bank with the knowledge of the appointment and position of Messrs Swan and MacLaren as architects for the Chartered Bank and without having obtained the permission of Messrs Swan and MacLaren to do such work. He was suspended from practising as an architect for one month by the respondent. He appealed against the said decision.

Held, allowing the appeal: (1) there is now no available code of professional conduct and ethics prescribed under s 22(3) of the Architects Act 1976. There are, however, guidelines as to the standard of professional conduct required of an architect found in the SIA Code, the ARCUK Code and RIBA Code; (2) this the appellant did when he was appointed in March 1977; (3) all he need do is to notify his appointment to the architect previously employed; (4) looking at the SIA Code, the ARCUK Code, the RIBA Code, it is to be noted that an architect is not required to obtain the permission of the architect previously employed. All that the architect need do is to communicate with the architect previously employed and inquire and ensure that his engagement has been satisfactorily terminated (SIA Code);under the ARCUK Code and the RIBA Code an architect need not even make such inquiry;documentary and oral evidence indicated clearly that the appellant was engaged by Singapore Land alone to prepare a presentation of the possible development of the Bank's site and that the appellant's commission and work for Singapore Land had ceased when Singapore Land on 22 December 1976 agreed with the Chartered Bank to defer the negotiations for a joint venture and to accept appointment as the Bank's development managers for the development of the Bank site; therefore, the ingredients of the charge had not been proved, and the appellant should not have been found guilty by the board. Per curiam: byelaw 13 of the Architects ByeLaw 1941 was ultra vires the provisions of the Architects Ordinance and was null, void and invalid.

JH Kinoshita v Board of Architects, Singapore [1982] 1 MLJ 59 High Court, Singapore (Chua J).

In this case the respondent had been expelled from membership of the Perak Chinese Association by a resolution of the executive committee which was later confirmed by an extraordinary general meeting on the basis of an allegation that he had used the name of the association without authority to privately print forms of application for membership of the association. The respondent applied to the High Court to set aside his expulsion on the grounds that the resolution in question and the confirmation thereof were ultra vires, in breach of the rules of natural justice and made in bad faith and also claimed damages for wrongful expulsion. The learned judge declared the resolution of the executive committee affecting his expulsion and the confirmation thereof by the extraordinary general meeting void and of no effect but made no order for damages. The appellant appealed against the declaration made and the respondent cross-appealed on the question of damages.

Held: (1) the rules of the association empowered the executive committee to expel a member but only in accordance with the rules; (2) in this case no adequate notice and hearing had been given and there was no due inquiry at the meeting of the executive committee in respect of the allegation against the respondent. In the circumstances the decision of the executive committee to expel the respondent could not be valid; (3) as the decision to expel the respondent arrived at by the executive committee was invalid, there could be no question of the extraordinary general meeting being able to confirm an invalid decision and in any case nothing transpired at the extraordinary general meeting to rectify the position or cure the initial defects in the decision of the executive committee; (4) there was not only reasonable suspicion but also real likelihood of bias on the part of the first appellant in this case and his presiding at the executive committee meeting and at the extraordinary general meeting in relation to the matter of the respondent's expulsion was yet another factor vitiating the proceedings; (5) the appellate court would not interfere with the learned judge's decision not to award damages as although his expulsion was invalid, the respondent had not suffered such damage as to merit a reversal of that decision. Principles upon which courts will intervene in decisions of domestic tribunals in relation to the power of expulsion of a member stated.

Chong Kok Lim & Ors v Yong Su Hian [1979] 2 MLJ 11 Federal Court, Ipoh (Chang Min Tat, Syed Othman FJJ and Abdoolcader J).

The plaintiff joined the Jurong Town Corp (the corporation) in November 1973 as an assistant secretary. He received subsequent promotions and became deputy head of the Development Division in 1980. The defendant was Chairman of the corporation. In March 1981, the defendant suggested to the plaintiff that he should resign his employment with the corporation and join Intraco Ltd. The plaintiff refused to comply with the suggestion and did not tender his resignation. On 31 March 1981 he was handed a letter transferring him from 1 April as administrative officer, Jurong Port, a post that was below that held by him as deputy head, Development Division. He inquired the reason for his transfer and correspondence ensued between him and the head of the Development Division. He also wrote to the Ministry of Trade and Industry of his dissatisfaction. Thereafter he received a letter of 13 August 1981 from the General Manager of the corporation accusing him of having committed offences under the 'Terms and Conditions of Service' (hereinafter called the Regulations). The plaintiff was asked to show cause within 14 days why action should not be taken against him. By a letter dated 24 August 1981 addressed to the General Manager, the plaintiff objected to the Chairman adjudicating on three of the charges against him, as the Chairman himself was involved in them. The corporation wrote to him on 29 September 1981 stating that 'since the Rules do not provide any alternative procedure, the Chairman is bound to act in accordance with the Rules'. On 15 October 1981 the plaintiff sought and obtained an interim injunction against the defendant restraining him from proceeding to inquire into offences alleged against the plaintiff and from adjudicating on the matter until further order. The matter came up before the court for further hearing.

Held, allowing the plaintiff's application: (1) the defendant had been properly made party to the proceedings as his presence was necessary for determining the point at issue, namely, as to whether he should be permitted to participate in the disciplinary inquiry against the plaintiff under the regulations and to adjudicate thereon; (2) the instant case is one where the Chairman is not able to act as the law has cast a disability on him to act in the same way that s 5(7) of the Jurong Town Corporation Act (Cap 209, 1970 Ed) has cast a disability on him to act whenever he has any business in which he is interested; (3) under s 7 of the said Act it is for the corporation to appoint and dismiss employees. It is well within the ambit of the powers of the corporation to relieve the Chairman of the anomalous position in which he unwittingly finds himself by either appointing the deputy chairman or any other member of the corporation to take his place; (4) as the regulations were brought into the plaintiff's contract of service by mutual agreement they may also be amended to meet the very special and unusual circumstances of the instant case.

Anwar Siraj v Tang I Fang [1982] 1 MLJ 308 High Court, Singapore (Rajah J).

The appellant is a public accountant registered under the provisions of the Accountants Acts. He was practising in partnership under the firm name of Wong & Teo, David Teo and Associates ('the firm'). The firm had two other partners. Although a resolution had been recorded for the first directors' meeting of Broadview Commodities, appointing the firm as the auditors of the company, nothing more appears to have been done to confirm or activate this relationship until the accounts of Broadview Commodities for the first year of operations were completed in 1982. In August 1982, the firm accepted the appointment as auditors by a letter dated 23 August 1982 and then carried out the first annual audit of Broadview Commodities. Government authorities investigated Broadview Commodities, and the investigations resulted in prosecutions against two Broadview Commodities officers. Arising out of the investigations of Broadview Commodities, a letter of complaint was sent by the Commercial Crime Division of the Criminal Investigation Department to the Singapore Society of Accountants ('the society'). It summarized the investigations into Broadview Commodities and referred to what it described as the 'deep involvement' of the appellant with Broadview Commodities. It finally expressed the view that in his involvement, he 'had failed to take reasonable care and skill', and 'could not have maintained a position of independence required of an auditor in order to be objective in forming and expressing his opinion on the accounts of Broadview Commodities'. The complaint was laid before the society's investigation committee, which in turn referred it to the disciplinary committee, which then held an inquiry. Before the disciplinary committee ('the committee'), the appellant faced seven charges under s 34(1)(b) of the Accountants Act (Cap 212, 1970 Ed) (later renumbered s 33(1)(b) of the Accountants Act (Cap 2, 1985 Ed)) ('the Act'), all of which were alleged to amount to 'grave impropriety', 'gross neglect', and 'an act discreditable to an accountant'. On two charges, he was ordered to be removed from the Register of Accountants; on three charges, he was suspended for a period of one, three and five years respectively, while no order was made as regards two charges. The suspensions imposed were to run concurrently. The appellant appealed to the High Court against these orders of the committee.

Held, allowing the appellant's appeal on all the charges: (1) the terms 'grave impropriety', 'gross neglect', and 'discreditable act' are not defined in the Act and there has also been no judicial interpretation of these terms. Neither has the society issued for the benefit of its members any rules or guidelines as to what acts of default or misconduct would be considered by the society to fall within the scope of this section. The court must therefore determine for itself what acts or omissions amount to professional misconduct which fall within the range of offences set out in the section, and whether, on a review of the evidence, the appellant was guilty of any of them. An act or default which was discreditable to an accountant need not necessarily have arisen out of his professional work as an accountant, but it should nevertheless have been an act which would have brought discredit on him as an accountant or on the profession as a whole; (2) a practical test could have been if reasonable people, on hearing about what he had done, would have said without hesitation that as an accountant he should not have done it. The court was of the opinion that a member of the society would have been guilty of gross neglect in the performance of his professional duties if, having regard to all the surrounding circumstances at the time, he did not exercise the skill and care that a reasonable client would have been entitled to expect of him; (3) for any member of the society to be guilty of grave impropriety in a professional respect under s 34, there must have been the same element of moral turpitude in the misconduct complained of, to the extent that it would have been regarded without hesitation by other accountants as being so disgraceful that his continued membership of the profession would immediately be called into question; (4) in view of the seriousness of the allegation, the committee carrying out the inquiry would have to apply a high standard of proof and not arrive at a finding of guilt merely on a balance of probabilities; (5) as for the first charge, it is clear that, at the time in late April and early May 1981, when the appellant made his visit to Hong Kong, and his firm sent the letter dated 30 April 1981 to the Gold Exchange of Singapore ('the GES'), neither the appellant nor his firm could be regarded as being the auditors of Broadview Commodities; (6) the appointment as auditors of Broadview Commodities and the contractual relationship as auditor with the company did not arise from the resolution at the first directors' meeting of Broadview Commodities. That was to come later in 1982 when the first accounts of Broadview Commodities were made available for audit. The firm merely had a limited assignment to certify as accountants to the GES that Broadview Commodities, which had only just been formed, had the paid-up capital of S$2m in connection with its application for membership of the GES. For this limited assignment, s 207 of the Companies Act (Cap 50, 1985 Ed), referred to by the committee, had nothing to do with the matter; (7) even if the court was wrong in finding that neither the appellant nor his firm had accepted appointment as auditors, his culpability or otherwise must be looked at objectively, taking the situation and circumstances as they were. It has to be borne in mind that at the time, these clients were a group of people to whom the appellant had been introduced for business; (8) at the request of his partner, the appellant had taken the trouble to go to Hong Kong from the Philippines to check on the existence and authenticity of the margin deposits. There was no reason then to go behind the margin receipts. In the court's judgment, without the benefit of hindsight and the better knowledge that would have come with it, it would not have been unreasonable for an accountant to act in the way that the appellant did in Hong Kong. The committee's finding on the first charge of gross neglect in the performance of professional duties was perverse and the finding must be set aside; (9) shares are allotted for cash, not only when they are paid for by legal tender or by cheque or by negotiable instrument on whichthe company may sue, but also when the company is indebted to shareholders and they agree that the debt shall be discharged by crediting shares which are paid up by an equivalent amount; (10) in this case, when the firm was asked to confirm that the S$2m had been paid up, it was entitled, on the invitation of the shareholders, to look at the evidence of the margin receipts, and the goods supplied and services rendered to Broadview Commodities, to satisfy itself prima facie that there was this consideration. There being nothing suspicious at the time, the firm was not required to go behind the margin receipts and the debts due to the allottee of the shares. The correct inference to drawfrom the evidence on this aspect is that both letters to the GES were not released until confirmation had been received from the appellant in Hong Kong; (11) the committee stated in its grounds of decision that in respect of this charge 'we find the defendant's conduct highly suspect'. Conduct which is highly suspect is not a basis for finding a man guilty under our legal system. Nor is it justifiable, in the case of a professional man, to use it as a basis to order that his livelihood be terminated. Accordingly, the committee's finding of guilt must be set aside; (12) the third charge itself was defective, in that it did not state the date at which it was alleged that the appellant knew or ought to have known the facts alleged. In a developing situation of the kind which arose here, it was necessary for the charge to state at least the date at which the facts were alleged to be known to the appellant; (13) the committee's finding of guilt on the third charge was perverse because the appellant gave in his evidence a full explanation of what he had done when he had picked up the items relating to payments for renovation costs in the audit papers. In finding him guilty, the committee gave no discernible reason for not accepting his explanation; (14) the third and sixth charges revolved around the central question of the duties and responsibilities of a company auditor in the audit of a company's accounts. A person practising as an accountant may be subject to certain statutory duties imposed by law under s 207 of the Companies Act (Cap 50, 1985 Ed). In addition, the accountant will have duties and responsibilities which arise from the contractual relationship between him and his client. The contract will record the nature and extent of his work and the standard of performance expected of him. Where the extent of the audit is not described in detail, the nature of his duties and responsibilities as an auditor may have to be resolved by the court, which must then have regard to the circumstances of the particular case and to precedents and accepted standards of current professional practice; (15) the auditor is not to be written off as a professional 'adder-upper and subtractor'. His vital task is to take care to see that errors are not made, be they errors of computation, or errors of omission or commission, or downright untruths. In common with other professional men, the standard required of an a ccountant in carrying out an engagement is that of reasonable skill and care of an ordinary skilled man carrying out the same enga gement. Some recent authorities have generally recognized the more exacting nature of this standard in the light of modern conditions. The importance of this has been emphasized by considering defaults in the light of the surrounding circumstances, having regard also to professional codes of standards and guidelines and to evidence of general professional practice. In particular, a court which is determining a case must guard against hindsight and only take into account knowledge available to the auditor at the time of default; (16) the appellant and his firm were up against people who were not only completely unscrupulous but were also highly skilled in covering up their fraudulent activities. So far as the appellant and his firm were concerned, it would not be possible to come to a decision even on their culpability without taking into full account the circumstances in which they were placed. In the court's judgment, it would be unsafe and unsatisfactory to allow the findings on the third and sixth charges to stand, and they must be set aside; (17) the society has not issued any code of ethics or practice guidelines to its members on conflict of interest, and in their absence, the committee's finding is a clear misdirection to themselves on the law on this point. Whether or not a conflict of interest will arise in any particular case will depend on the nature of the appointments, and the functions required to be carried out under them, and more often than not on the manner in which the functions are to be performed. It would appear therefore that the question of conflict of interest is one of substance and a court must be satisfied in each case that real mischief and real prejudice will in all human probability result. There was no evidence at all to support the finding of guilt on the seventh charge as, apart from the minutes of the first directors' meeting, which appointed the appellant financial controller, there was no other evidence that the appellant had in fact acted in any capacity as a financial consultant; (18) domestic tribunals such as this committee, which derive their authority from Parliament, usually have a wide discretion to carry out inquiries in accordance with their own rules of procedure. At every stage, however, they must observe what are commonly regarded as rules of natural justice. An offender brought before a tribunal must not only be given a hearing, but he must also be given a fair hearing, otherwise the tribunal will be acting ultra vires. The adversarial system of justice necessarily means, in the case of a disciplinary committee of a professional body, that it must approach the issues before it with an open mind. In hearing evidence, a disciplinary committee may seek clarification on points in the evidence which are not clear, but in doing so it must at all times avoid descending into the arena, and joining in the fray. An inescapable impression formed from perusing the transcript is that, in trying to discharge its responsibilities effectively, the committee went well beyond its authority to carry out a 'due inquiry' under the Act, until the inquiry became an inquisition of its own, aimed at securing evidence to justify a finding of guilt. The manner in which the committee went about its inquiry was clearly against the rules of natural justice and was therefore ultra vires, and on this ground alone any finding and sentence by it would have been void.

Wong Kok Chin v Singapore Society of Accountants [1990] 1 MLJ 456 High Court, Singapore (Yong Pung How J).

The appellant in this case was a registered engineer. The Board of Engineers had decided that his conduct amounted to 'improper conduct which renders him unfit to be a registered professional engineer'. He had allowed a wall to be erected without an approved plan some ten years ago. The said wall collapsed and damaged a number of cars.

Held: the appellant had learnt his lesson and justice will be done if the order of the board cancelling his registration was altered to an order suspending him from practice for one year.

DK Gudgeon v Professional Engineers Board [1980] 2 MLJ 181 High Court, Singapore (Choor Singh J).

In this case the appellant had entered a complaint against a fellow member in a complaint book. He was suspended by the disciplinary committee of the club for allegedly committing a breach of a new ruling contained in a 'warning' issued by the committee that the complaint book be used strictly for complaints against the quality of the club's services or operation and that any personal complaint against members should be sent directly to the club secretaries. The appellant applied for a declaration that the suspension order was null and void. The learned judge of the High Court dismissed the application. The appellant appealed.

Held, by a majority (Wan Hamzah SCJ dissenting): (1) the only way in which the contractual terms between the club members can be varied or altered is by amending the relevant rules or byelaws. Consequently the learned trial judge erred in law and in fact when he held that the 'warning' was valid merely on the basis that the committee would be the best body to decide what complaints and suggestions could go into the complaint book and that good reasons had been given by the committee for imposing the restriction; (2) the disciplinary committee in this case had obviously acted beyond its jurisdiction and the purported exercise of disciplinary action by the committee based on a new ruling in the warning was ultra vires the rules of the club; (3) since the disciplinary committee had acted beyond its jurisdiction and its decision was void, the appellant should not be required to exhaust his domestic remedies before coming to the court.

B Mahesan v KK Lim [1987] 2 MLJ 160 Supreme Court, Kuala Lumpur (Salleh Abas LP, Mohamed Azmi and Wan Suleiman SCJJ).

Vasudevan Pillai & Anor v City Council of Singapore [1965] 2 MLJ 51 Federal Court, Singapore (Thomson LP, Barakbah CJ (Malaya).

Re Haji Sazali bin Datuk Haji Noor Tahir [1992] 2 MLJ 864 High Court, Kuching (Chong Siew Fai J).

By a written agreement dated 15 November 1975, the defendants agreed to erect and complete for the plaintiff a 19-storey apartment block. Clause 25(1) of the said agreement provided for the determination of the contract by the employer, ie the plaintiffs. On 17 May 1978 the plaintiffs' architects wrote to the defendants indicating dissatisfaction with the defendants' work and instructing the defendants to attend to certain defects in the building. On 2 June 1978, the plaintiffs' solicitors wrote the defendants' solicitors claiming damages for delay and terminating the contract forthwith. Reference was made to cl 25(1). The dispute was then referred to a single arbitrator who made an interim award on 9 May 1979. The plaintiffs sought to set aside, vary or remit to the arbitrator the interim award on five grounds. The plaintiffs contended, inter alia, that the interim award did not deal with all the matters referred to by the arbitrator for his decision. The remission went to the arbitrator and he published his findings pursuant to the order of court of 4 March 1980. The plaintiffs then filed another originating motion to set aside, vary or remit the interim award as amplified by the arbitrator's said findings.

Held: (1) the arbitrator misdirected himself when he said that for the purposes of the remission hearing, the notes of evidence, not having been made part of the interim award, could not be availed of by either party for clarification as to what happened at the original hearing. This refusal of the arbitrator to make available the notes of evidence for clarification purposes to the plaintiffs resulted in the plaintiffs not getting the kind of hearing intended by the remission, that is to say, a fair hearing; (2) it cannot be right in principle for an arbitrator to rely on or quote in justification of his award from a document which he had expressly excluded from his interim award and which he had refused the party adversely affected, a sight of; (3) the arbitrator's ruling not to reopen the case and to hear no further submissions as to what notices were given which satisfied termination under cl 25(1)(b) amounted to a failure of justice; (4) justice would be done between the parties if the award were set aside. It would be open to the parties to take such steps as they think fit to resolve their present dispute.

Tan Tong Meng Co (Pte) Ltd v Artic Builders & Co (Pte) Ltd [1982] 1 MLJ 114 High Court, Singapore (Rajah J).