Penning Perceptions

  • As I read the recent Court of Appeal decision of Obata-Ambak Holdings Sdn Bhd v Prema Bonanza Sdn Bhd & another appeal delivered on Mar 16, 2022, the decision raised more questions than answers.

    This was a case where the housing developer had obtained extension of time (EOT) for 54 months in July 2012 for delivery of vacant possession of a housing project. The relevant clauses in the sale and purchase agreement were amended to reflect the extended period of delivery of vacant possession of the property. Both the purchaser and the housing developer agreed that the time for delivery of vacant possession was 54 months.

    After taking delivery of vacant possession of its property from the housing developer, the purchaser filed the suit in year 2020 against the housing developer claiming for liquidated ascertained damages dating back to 36 months from SPA following the decision of Ang Ming Lee in 2020.

    The housing developer raised the defence of limitation against the purchaser’s claim, saying that the purchaser was already out of time when it filed the action in 2020. Why? Because if the EOT was invalid as per the decision of Ang Ming Lee, it would have had breached the terms of SPA at the time of signing. The cause of action would have run from date of signing of SPA in July 2012 and 6 years had lapsed in July 2018. Therefore, the purchaser’s action filed in 2020 was barred by limitation.

    I would agree with decision of Ang Ming Lee that the EOT obtained was invalid as it was not obtained in accordance with the law. However, one must be very careful to apply Ang Ming Lee’s case. In Ang Ming Lee, the SPA was signed providing for 36 months to deliver vacant possession as per Schedule H of Housing Development Regulations 1989. When the EOT was obtained later and subsequently ruled as invalid by the courts, the purchasers were still able to go back to the original 36 months as provided in the SPA to claim for liquidated ascertained damages.

    Here, the SPA was already amended to 54 months at the time of signing. And now with the EOT obtained being invalid, can the parties now rely on the 36 months as provided under Schedule H even though it was never in the SPA in the first place? Or will the relevant clause on delivery of vacant possession in the SPA be rendered null and void?

    This was the difference between the facts of this case and the facts in Ang Ming Lee which will bring us to different line of questions. I hope there will be another Federal Court decision ruling for the effect of EOT on SPA where the clauses were already amended at the time of signing. This will settle a lot of conflicting decisions post Ang Ming Lee.

  • Introduction to Mindfulness Techniques

    Later in this book, we tell you more about how, why and for how long people have been using calming techniques like meditation and yoga to improve their lives. These techniques are sprinkled throughout this book, and in Chapter 8 we review the history and development of mindfulness, as well as some of the many mindfulness techniques you might find useful. Here we give you a taste.

    Why be mindful?

    Being mindful and practicing simple mindfulness techniques, even in small doses, can strengthen your intellect, improve your resolve, and improve your interpersonal skills. Mindfulness techniques can also help you relieve stress. Although being an attorney is not an easy job, it can be very rewarding.

    The difficulties of the job are part of what make the work of an attorney meaningful. As Tal Ben-Shahar explains in his book, Happier, we are happiest when we work in jobs that combine our strengths with what we find pleasurable and meaningful. We also grow deeply and steadily through adversity. As Ben-Shahar explains, “we are designed for the climb…”

  • Balancing the scale of social legislation

    Just finished reading the grounds of judgment of PJD Regency Sdn Bhd v Tribunal Tuntutan Pembeli Rumah & Ng Chee Kuan Civil Appeal No. 01(f)-29-10/2019(W) delivered on January 19, 2021 and immediately the following thoughts came to mind.

    This case involved 7 appeals where it was grouped to 3 groups of appeal involving 3 different development projects and heard before the same panel of Federal Court judges.

    The developer of all the 3 projects where the housebuyers bought their units of property have failed to deliver vacant possession of the property within the time frame as stipulated in the sale and purchase agreement (“the agreement”).

    The agreement stipulates that vacant possession of the property is to be delivered to the housebuyers within 36 or 24 months from the date of agreement (“the completion date”) in accordance with Schedule H or Schedule G prescribed respectively under Housing Developer (Control & Licensing) Regulations 1989.

    The problem is when does the completion run from? 36 months from the date when the housebuyer paid the booking fee or 36 months from the date when the sale and purchase agreement was signed?

    The housebuyer insisted that the 36 months should run from the date he paid the booking fee, while on the other hand, the developers argued that 36 months should run from the date when the agreement was signed.

    The Federal Court ruled in favor of the housebuyers, in that the 36 months should run from the date the housebuyer paid the booking fee, on the grounds of that the Housing Developers (Control & Licensing) Act 1966 is a social legislation which was meant to protect housebuyers and the doctrine of stare decisis following two previous decisions in Hoo See Sen & Anor v Public Bank Berhad (1988) 2 MLJ 170 and Faber Union Sdn Bhd v Chew Nyat Shong & Anor [1995] 2 MLJ 597.

    I have come across this social legislation concept ever since handling employment matters that deals with the Industrial Relations Act 1967, another piece of social legislation.

    However, question came to mind, what was the reason that there being a gap between the date of payment of booking fee and the date of signing of the agreement? We are talking about the agreement for purchase of property under project development.

    I understand that the nature of business of construction of project development is not the same as the business of food and beverage or any other business. In food business, you go in a food court, you order a plate of nasi lemak and make payment at the counter. Upon payment, the vendor will be preparing your nasi lemak and serve it to you accordingly.

    The nature of the business of construction is not the same. Construction work may or may not have started when the developer receives booking fees from housebuyers but for some reason, the constructions may be disrupted. Reasons for delay may vary from the developers being stuck with the authorities or a court order. Sadly, the reasons for the gap between the date of payment of booking fee and the date of signing of the agreement was nowhere mentioned in the grounds of judgment in High Court and Federal Court. In practice, some gaps can be as long as 6 months or 1 to 2 years.

    If developers have a valid and practical reason for explaining the gap between the date of payment of booking fee and the date of signing of the agreement, they should have a representative before the courts either as an intervener or as an amicus curiae in watching briefs to provide the courts with an authoritative insight representing the developers, notwithstanding the express prohibited of collection of booking fee under the Housing Developers (Control & Licensing) Regulations 1989.

    The principle of looking at the objective of social legislation to protect housebuyers must also be balanced with the practicality of doing business. The court’s effort to level the playing field between developers and housebuyers must have the effect of balancing a scale.

    Notwithstanding that, whatever is the reason for the delay in signing the agreement, that will if anbe an issue to be settled between developers and the parties / authorities who are causing that delay. As far as the housebuyer is concerned, time has already run from the date when he paid his booking fee or deposit. It is for the developers to sort out any issues that is causing the delay in getting the agreement signed. If the problem involves the law, then push for reform of the law.

    Not siding with any sides but just considering from the viewpoint of a housebuyer and a developer.

  • Does Positive Thinking Always Work?

    Does positive thinking always work?

    Yes.

    Now, I realise this is a rather bold statement. And someone may object: ‘Is that so, I had lots of problems. I read positive thinking and I still have problems.’ Someone else may say, ‘Well, I had a business that was in the doldrums, and I tried positive thinking, and my business is still in the doldrums. Positive thinking didn’t change the facts. Failure exists. If you deny that, you’re just being an ostrich, burying your head in the sand.’

    So often, people don’t really understand the nature of positive thinking. A positive thinking does not refuse to recognize the negative, he refuses to dwell on it. Positive thinking is a form of thought which habitually looks for the best results from the worst conditions. It is possible to look for something to build on; it is possible to expect the best for yourself even though things look bad. And the remarkable fact is that when you seek good, you are very likely to find it.

    This seeking the positive is a deliberate process, and a matter of choice. Not long ago I received word that a friend of mine had been fired. In talking with Bill, I learned the circumstances. He had been summarily dismissed. No explanation was given except there had been a policy change, and he was no longer needed. To make matters worse, nine months earlier Bill had received a handsome offer from a competing firm, he had talked the matter over with his boss, and his boss had persuaded him to stay on, saying , ‘We need you here, Bill. And frankly, things look pretty good for you.’

    Well, of course, Bill reacted rather bitterly to all of this. He went around feeling unwanted, insecure, rejected. His ego had been hurt. He became morose and resentful, and in a state of mind like that, he wasn’t in a very good condition to look for another job.

    This is exactly the kind of situation where positive thinking can do its best. One day, Bill dug out an old copy of The Power of Positive Thinking, and read it through. What possible good was there in his condition, he wondered? He didn’t know. But he could see plenty of negative factors, and he clearly realised that these negative emotions were dragging him down. If he was going to put positive thinking to work, the first thing he had to do was get rid of the negative feelings.

    Here, at least, was a place he could begin. So he practised the principle of thought replacement. That is he deliberately filled his mind with positive affirmations and crowded out the negative thoughts. He began a systematic programme of prayer and told the Lord: ‘I believe You have a plan for my life, so there must be some purpose in my getting fired. Instead of railing against my fate, I humbly ask You to show me the purpose in what has happened.’ Once he began to believe there had been a reason and some meaning behind what had happened to him, it was easier to rid himself of resentment against his former employers. And once that happened he was ’employable’ again.

    One day, shortly after he had reached this point in his thinking, Bill met an old friend. They got to talking, and the friend asked how things were.

    “Oh, I’ve just been fired.” Bill said, casually.

    The friend was surprised. “Well, you’ re certainly honest enough about it,” he said. “What happened?”

    Bill told him, and he finished by saying “…and I know the Lord has a job for me somewhere else.”

    “The Lord! Aren’t you worried?”

    ‘Not at all. Something better will turn up. In my philosophy, when one door shuts another will open if you just have faith and put your problem in. God’s hands.’

    A few days later Bill received a telephone call from his friend, saying there was a long unfilled opening in his company, and asking him if wanted the job – salarywise is wasn’t as good as his last position, but it had potential. Bill took it. There was no doubt about the fact that in his new job he was in a better position to be of service to people. He realised this very shortly and soon discovered that his new activity was one he had always wanted. He became stimulated and excited about his work in a way that he had almost forgotten at his previous place of employment. He would grow. This, he felt sure, was part of the plan that God had in mind.

    Now the important thing to analyze here is why positive thinking worked. It’s not that some magic entered the picture and created a job out of the ether. There was a definite scientific principle at work. When Bill had his mind filled with resentments and angers and hatreds, he was destroying his own value as an employee. He was making it impossible for himself to do his best at the business of job-seeking. On the day Bill met his friend, if he had been bitter and full of sly defences, do you think the friend would have considered him a good person to recommend for the new job? There is no mysticism at work here. This way of thinking and of acting is, above all, down-to-earth common sense.

    Positive thinking is looking at events with the knowledge that there will be both good and bad in life, but that it is better to emphasize the good. And as you do that, good seems to increase.

    The other day I went out of the door of my office and hailed a cab. As soon as I got in the taxi, i could tell that my driver was a happy man. He was whistling. First he whistled a tune from, ‘My Fair Lady’, and then he launched himself into a version of ‘Stars and Stripes Forever’. After a while I said to him, ‘You seem to be in a happy mood.’

    ‘Why shouldn’t I be?’ he said. ‘I’ve just learned something. I’ve learned that there’s no percentage in getting excited, or in the dumps, because things average out.’

    And he went on to explain what he meant. Early that morning he had taken his cab out, hoping to take advantage of the morning rush hour. It was a bitterly cold day. The driver said it was “…the kind of temperature where, if you touch metal your hand will stick to it.’ And as luck would have it, no sooner had he started his day than he had a flat tyre. He was angry. Muttering, he got out his jack and lug wrench and tried to take off the tyre. It was so cold he could only work for a few minutes at a time. And while he was struggling, a truck stopped. The driver jumped out and, much to the taxi-driver’s surprise, began to help him. When the tyre was back in place, the trucker gruffly waved off the cabby’s thanks, got in his truck and drove off.

    ‘Well, this put me in a high mood,’ the cabby said to me. ‘Already things were averaging out. First, I was angry with the flat, then I felt good because of that trucker’s help and right away things started going good. Even the money has averaged out, I’ve never had a busier morning, one fare after another in and out of the cab. Things average out, Mister. Don’t get excited when a situation gets rocky; things average out.’

    Here was a positive thinker, all right. He said he was never again going to let life’s mishaps annoy him. He was just going to live by the theory that things average out ok. That is real positive thinking, and it will work, too, because things always come around to a brighter view when you wait them out and work them out optimistically. The law of average is always on the positive thinker’s side. A positive thinker chooses to keep his mind fixed on the bright future that is always just around the corner, and in this way he helps make the dark moments more cheerful, productive and creative. That attitude gets you around the ‘corner’ quicker, too.

    It is a fact of life that all of us will come face to face with plenty of frustration, difficulty and trouble. But there isn’t one of us who needs to be defeated by these obstacles. If you face life with the since faith that through the aid of the Almighty you can overcome your trouble, then you will keep defeat at arm’s length. And this applies in all the circumstances life can bring.

    One evening in San Francisco, I had the pleasure of dining in the home of a charming lady named Elena Zelayeta. I have never attended a dinner party presided over by an individual of happier personality or more irresistible galery. Elena is Mexican, and the dinner she served that evening was a 17-course Mexican dinner (small courses) – the most delicious repast I could hope to experience. She cooked it herself – and she is totally blind.

  • The Verb

    “Yeah, Jesus,” I said, shifting uncomfortably in my seat. “You might as well know, Simeon that I’m not much of a religious person.”

    “Of course you are,” he said gently as if there were no question about it.

    “You hardly know me, Simeon. How can you say that?”

    “Because everyone has a religion, John. We all have some sort of beliefs about the cause nature and purpose of the universe. Our religion is simply our map, our paradigm, our beliefs that answer the difficult existential questions. Questions like, How did the universe come into existence? Is the universe a safe or hostile place? Why am I here? Is the universe random or is there a greater purpose? Is there anything after death? We have all thought about these things, of course some more than others. Even atheists are religious people because they too have answers to these questions.”

    “I probably don’t spend enough time thinking about spiritual things. I’ve always just gone to the local Lutheran church like my folks did assuming it was the right thing to do.”

    “Remember what we said in class, John. All of life is relational, both vertically to God, and horizontally to our neighbor. Each of us has to make choices about those relationships. There is an old saving that God has no grandchildren and to me that means you do not develop and maintain a relationship with God, or anyone else for that matter, through other people or through hand-me-down dogma or religions. Relationships have to be carefully developed and nurtured if they are to grow and mature. Each of us must make our own choices about what we believe and what those beliefs mean in our lives. Someone once said that everyone has to do their own believing, just like everyone will have to their own dying.”

    “But Simeon, how are you supposed to know what to believe? How are you supposed to know what is the truth? There are so many religions and beliefs to choose from.”

    “if you are truly asking and seeking to find truth John, I believe you will find what you are looking for.”

    AT THE END OF NINE CHIMES, the teacher was ready to go. “As I warned you yesterday, our topic today is love. I know that may be a little uncomfortable for some of you.”

    I glanced over at the sergeant, half expecting to witness real life spontaneous human combustion. No flames or smoke were evident.

    After a moment or two of silence, Simeon continued, “Chris asked yesterday, “What’s love got to do with it? To understand leadership, authority, service and sacrifice, it is helpful to come to grips with this very important word. I first began to understand the real meaning of love many years ago, while I was still in college. I was a philosophy major at the time and a few of you may be surprised to learn a true atheist.”

    “Now I’ve heard it all.” Greg called out, “Mr Reborn Monk himself, a nonbeliever? Now how could that be, Brother?”

    Laughing, Simeon answered, “Because, Greg, I had studied all the great religions and none of them seemed very plausible to me. Christianity, for example, I really tried to understand what Jesus was trying to say but He kept coming back to this word love. He said to ‘love your neighbor,’ which I figured might be possible provided I had good neighbors. But to make matters even worse, Jesus insisted we ‘love our enemies.’ To me, this was worse than nonsense. Love Adolf Hitler? Love the Gestapo? Love a serial killer? How can he command people to manufacture an emotion like love? Especially toward unlovable people? To put it in your words, Greg, not in this life, big guy!”

    “Now you’re preaching, baby!” the sergeant chuckled.

    “Then came a turning point for my paradigms about life and love, Several fraternity brothers and I got together one evening for a few beers at the local tavern. One of the language professors, who like to frequent that same bar, came over to join us and soon the conversation moved to the world’s great religions and eventually Christianity came up. I said something like ‘Yeah, love your enemies. What a joke. Like I’m going to have positive regard for an ex murderer!” The professor stopped me dead in my tracks and said I was misinterpreting Jesus’ words although they seem plain enough to me. He explained that in the English language, we generally associate love with a feeling. You know, I love my house, I love my dog, I love my cigarettes, I love my booze. As long as I have good feelings about something, I can say I love it. We generally do not associate love with anything but positive feelings.”

    “That’s true, Simeon.” the principal agreed. “In fact, last night as I was anticipating our topic today, I went to your library here and looked up love in the dictionary. There were four definitions and I wrote them down. Number one, strong affection, number two, warm attachment, number three, attraction based upon sexual feelings and number four, a score of zero in tennis.”

    “You see what I mean, Theresa? Love is rather narrowly defined in English and most of the definitions involve positive feelings. The language professor explained to me that much of the New Testament was originally written in Greek, one of his language specialties and he informed me that the Greeks used several different words to describe the multifaceted phenomenon of love. If I remember correctly, one of those words was eros, which our English word erotic is derived from, and it means feelings based upon sexual attraction, desire and craving. Another Greek word for love, storge is affection especially between and toward family members. Neither eros nor storge appears in the New Testament writings,

  • Updates of measures under the Prevention and Control of Infectious Diseases (Measures within Infected Local Areas) (No. 7) Regulations 2020

    Updates of PCID No. 7 Regulations 2020

    Following the announcement of Prime Minister Tan Sri Muhyiddin Yassin on June 7, Malaysia’s Conditional Movement Control Order (CMCO) ending on June 9 will be substituted by Recovery Movement Control Order (RMCO) starting from June 10 to August 31, 2020.

    The new Prevention and Control of Infectious Diseases (Measures within Infected Local Areas) (No. 7) Regulations 2020 (PU(A) 180/2020) which takes effect on June 10 has come out with the necessary measures on movement, gathering and prohibited activities during the period of RMCO.

    Control of movement

    Movement from one infected local area and to another infected local area and movement within the infected local area is generally allowed. Under the PU(A) 181/2020, there is no restriction of movement between or within any local infected areas except in areas under enhanced movement control by the authorities.

    Enhanced movement control order (EMCO) were first introduced by the authorities where effective March 27, 2020, specific locations were subjected to a stricter order for 14 days if a large cluster was detected within the area in order for the government to conduct a thorough Covid-19 test towards all residents, and to curb the spread of the virus out of the areas.

    Where an area is placed under enhanced movement control order, no person would be allowed to enter or exit the area except a person providing medical services. Where the person is not a person providing medical service, permission from an authorised officer needs to be obtained[1].

    As to how many people can a private vehicle carry during the RMCO and must all the people in the car comes from the same house, the Senior Minister in his daily briefing had said that carpooling with different passengers from different households is allowed and the number of passengers will be limited to the capacity of the vehicle[2]. However, there has been another news report stipulating that the previous requirement that passengers must be from the same house with the driver is still in place[3]. This could be in view of the provision in PU(A) 181/2020 that any direction of the Director-General issued under the PU(A) 147/2020 shall be deemed to be made under the PU(A) 180/2020 and remain in force until revoked.[4]

    Should the announcement of the Senior Minister on private vehicle stands, the regulations would need to be amended accordingly to reflect the accurate measure adopted by the government.

    Control of movement within the State of Sarawak

    Unlike the previous provision in the Prevention and Control of Diseases (Measures within Infected Local Areas) (No. 6) Regulations 2020 (PU(A) 147/2020) where no one is allowed to move within the infected local areas in Sarawak, movement within and between infected local areas is now allowed in the State of Sarawak under PU(A) 181/2020, just like any other infected local areas in Malaysia.

    Prohibited activities

    The Schedule to the PU(A) 181/2020 lists down prohibited activities as follows:

    1. Organizing sports event and tournament
    2. Contact sports
    3. Water theme park and water park activities
    4. Swimming pool activities (other than swimming pool activities in a swimming pool in a private residence and in a swimming pool for private use in accommodation premises under the Tourism Industry Act 1992) except for the training of national athletes participating in the Tokyo Olympic Games 2020
    5. Outbound tour activities by a citizen and inbound tour activities involving foreign tourists entering Malaysia
    6. Activities in karaoke centers, children’s playground in shopping malls and family entertainment centres
    7. Activities in pubs and night clubs, except restaurant business in pubs and night clubs
    8. Fitting of clothes, using fitting rooms in clothes stores, trying on fashion accessories in stores and providing cosmetic testers in stores
    9. Reflexology and massage activities in a health and beauty establishment
    10. Cruise ship activities
    11. Any activity with many people in attendance at a place making it difficult to carry out social distancing and to comply with the directions of the Director-General.

    Procession and gathering

    The provision on procession and gathering is now separated under the PU(A) 181/2020 where procession of any kind is still prohibited while gathering at any place of worship is allowed. Gathering at any place of worship includes congregation to perform prayers subject to compliance with directions of the Director-General.[5]

    Unlike the previous PU(A) 147/2020 which specifically allows gathering for the purpose of celebrate Hari Raya Puasa, Pesta Keamatan and Gawai Dayak Day[6], the new PU(A) 181/2020 did not specifically stipulate any religious activities. From the reading of the provision, it can be construed that gathering at places of worship is not limited for the purpose of worship only but would include celebration of religious festivities such as the Hari Raya Aidiladha subject to the directions of the Director General.

    Public transport

    Under the RMCO, the operation of public transport is allowed at full capacity under PU(A) 181/2020 subject to the adherence to the standard operating procedure issued by the relevant authorities. Therefore, all public transport services including flights and express buses, e-hailing service and private vehicles are now allowed to operate without any time limit.

    The standard operating procedures for public transport services would still require drivers and passengers to wear face masks and have their body temperature recorded before boarding and to use hand sanitizer. Registration before boarding the public transport is also required either manually or through the MySejahtera app for contact tracing purposes.

    As to social distancing, Senior Minister Ismail Sabri Yaakob has clarified the confusion[7] after Rapid Rail CEO Abdul Hadi Amran earlier stated that train operations will return to normal and passengers would no longer need to observe social distancing in the train.[8]

    Health examination upon arrival in Malaysia

    Any citizen, permanent resident of Malaysia, expatriate or diplomatic corporation or any other foreigner entering Malaysia from overseas would be required to undergo Covid-19 test upon arrival in Malaysia before proceeding for immigration clearance at any point of entry.[9]

    If the individuals are required to undergo self-quarantine at home, they must wear a wristband to be provided by the authorities. Countries such as South Korea, Hong Kong, India and Bulgaria had implemented the electronic wristband for all passengers who arrived in the country’s airport. The wristband which is connected to a smartphone app will help to ensure people stay at home because it will alert the authorities if the wearer attempts to remove the wristband.

    Contravention of any provisions of regulations

    Contravention of any provision of these Regulations or any direction of the Director General or an authorized officer is an offence, no matter whether committed by an individual or a company.

    Where the wrongdoer is an individual, he/she shall be liable to a fine not more than RM1,000 or to imprisonment for a term of up to six months or both. Where the offence is committed by a corporation, the director, compliance officer, partner, manager, secretary or other similar officer of the corporation may be charged severally or jointly with the corporation in the same proceedings with that corporation. Corporation here includes a company, limited liability partnership, firm, society.

    If the corporation is found guilty of the offence, the director, compliance officer, partner, manager, secretary or other similar officer of the corporation would also be deemed guilty of the offence and be liable to the same punishment as an individual. If the officer could prove the offence was committed without his knowledge and/or the offence was committed without his consent where he had taken all reasonable precautions and exercised due diligence to prevent the commission of the offence.[10]

    Conclusion

    The recovery period that we are currently in refers to a situation where injury caused is in the process of healing but not healed yet. Recovery is a period where injury might again be caused by lack of care and self-discipline, Similar to the situation where a patient recovering from a cold, if he eats cold food during the recovery process, he will surely fall sick again. Therefore, recovery period is a time where extra attention and self-discipline is needed to ensure full healing.

    No doubt that the above measures under the latest regulations concerning Covid-19 gives more leeway to movement and the gradual reopening of public life but they can only be successfully implemented with full compliance with the standard operating procedures on all relevant economic and social sectors. The responsibility to remain vigilant remains with us.

    References

    [1] Regulation 4(2), Prevention and Control of Infectious Disease (Measures within Infected Local Areas) (No. 7) Regulations 2020 (PU(A) 181/2020)

    [2] Public transport given green light for full capacity once more, FMT, June 11, 2020

    [3] Self-discipline, SOP compliance important to free Malaysia from Covid-10, The Sun Daily, June 11, 2020

    [4] Regulation 12, Prevention and Control of Infectious Disease (Measures within Infected Local Areas) (No. 7) Regulations 2020 (PU(A) 181/2020)

    [5] Regulations 5 and 6, Prevention and Control of Infectious Diseases (Measures within Infected Local Areas) (No. 7) Regulations 2020 [PU(A) 181/2020]

    [6] Regulation 7(2), Prevention of Control of Infectious Diseases (Measures within Infected Local Areas) (No. 6) Regulations 2020 [PU(A) 147/2020]

    [7] Public transport given green light for full capacity once more, FMT, June 11, 2020

    [8] No more social distancing on RapidKL trains, FMT, June 9, 2020

    [9] Regulation 8, Prevention and Control of Infectious Diseases (Measures within Infected Local Areas) (No. 7) Regulations 2020 [PU(A) 181/2020]

    [10] Regulation 11(2)(b), Prevention and Control of Infectious Diseases (Measures within Infected Local Areas) (No. 7) Regulations 2020 [PU(A) 181/2020]

  • Covid-19: Improving the Living Conditions of Foreign Workers

    Screenshot_20200603-165347_Gallery

    Since the implementation of the Movement Control Order, there have been discovery of new clusters of Covid-19 infection among foreign workers, for instance, the Selangor Mansion cluster, the Malaya Mansion cluster, the Menara City One cluster in Kuala Lumpur, just to name a few.

    Unsanitary and the cramped living conditions of the workers have provided a good breeding ground for Covid-19 virus. In the case of the Selangor Mansion, Malaya Mansion and Menara City One, the authorities found that there are nearly 30 workers living in a single unit apartment which is far below the minimum standard of housing for workers provided under the law.

    The law for workers’ housing is already in place, namely the Workers’ Minimum Standard of Housing and Amenities Act 1990 (Act 446). This is a legislation enacted to provide for accommodation and amenities for workers in all sectors. Although the legislation has been in force since June 1, 2020, employers are given a three-months’ period until August 31, 2020 to fully implement the requirements for workers’ housing and amenities.

    Under Act 446, an employer has various duties to shoulder towards preparing and maintaining proper housing and amenities for the workers. The employer is required to among others, construct and maintain estate hospital for workers in the estate sector, duty to report suspected cases of infectious disease to the authorities, duty to segregate workers suffering from infectious disease, duty to take necessary preventive measures to ensure workers’ safety and well-being, duty to apply for a certificate of accommodation for workers in sector other than estate.

    Violation of the duty to report suspected cases and duty to segregate workers attracts a penalty of fine of up to RM10,000. Violation of any other provision of Act 446 would attract a penalty of fine of up to RM50,000. What is more, Act 446 also makes directors, compliance offers, partners, managers and secretaries of the employer company liable for the offences committed by the employer company under Section 29A.

    Employers will probably find the next three months a daunting period to work on implementation of proper housing and amenities but this would be inevitable if they are serious about cutting off the chain of Covid-19 infection among its workers. If employers can see this need from a new perspective and treat this as part of their business continuity plan, this would help in turning things around in the long run.

  • Updates of the Prevention and Control of Infectious Diseases (Measures within Infected Local Areas) (No. 6) Regulations 2020

    Self-discipline and the adaptation of the new normal

    by Tan Poh Yee

    The implementation of conditional movement control order necessitates the revision of the legislation and regulations. From the initial regulations enacted in March 2020 up to the current Prevention and Control of Infectious Diseases (Measures within Infected Local Areas) (No. 6) Regulations 2020 (“PU(A) 147/2020”), we can see the shift from the restrictive control of movement where only essential service being allowed to operate, PU(A) 147/2020 now provides for the easing of movement during the conditional movement control order.

    However, PU(A) 147/2020 was amended by the Prevention and Control of Infectious Diseases (Measures within Infected Local Areas) (Amendment) (No. 6) Regulations 2020 (“PU(A) 170/2020”), we take note of the notable amendments thereto.

    Interstate Movement

    Under the PU(A) 147/2020, no person is permitted to travel interstate except for work purposes. For purposes of movement within the infected local area and for movement between infected local areas and for purposes of control of gathering and procession, the state of Selangor, Wilayah Persekutuan and Putrajaya is regarded as one infected local area. This explains the reason that people who stays in Petaling Jaya does not need to obtain police permit to travel to Kuala Lumpur for work purposes.

    Spouses who stayed apart in different states may move from one state to another provided he/she obtains prior written approval from the officer in charge of the police district where he/she stays. Similarly, prior written permission of the officer in charge of the police district where he/she stays is required if one needs to go to another state for special and particular reason, such as death and emergency.

    Control of gathering and procession

    Under PU(A) 147/2020, no person shall participate in any gathering whether for economic, religious, educational and learning, sports, recreational, social or cultural purposes. However, a person may gather for celebration such as Hari Raya Puasa, Pesta Keamatan and Gawai Dayak Day on the direction of the Director General. A person is also allowed to gather for a funeral on the condition that the attendees does not exceed 20 people.

    The regulation was later amended to allow for gathering for prayers at places of worship and that such gathering shall not be regarded as a prohibited activity under the regulation.[1]

    In the latest development, the Ministry of National Unity (Kementerian Perpaduan Negara) released the names of 174 non-Muslim places of worship being approved tp resume operations starting June 10 following the announcement of the Defence Minister Ismail Sabri Yaakob on May 21.[2]

    Private vehicle

    Private vehicle is permitted to carry no more than three passengers who stay in the same house as the driver. However, effective May 27, 2020, a person may drive a private vehicle containing the number of passengers that may be carried in the private vehicle. For instance, if a person is driving a 7-seater multi-purpose vehicle, he is permitted to carry 6 passengers and that the passengers must be staying in the same house as the driver.

    Flight to Sabah or Sarawak from Peninsular Malaysia and vice versa

    A holder of any air public transport licence or permit to carry passenger is permitted to carry not more than 66.6% of total maximum of load factor allowed to be carried on board by the air public transport for each journey of a scheduled flight from Sabah or Sarawak to Peninsula Malaysia.

    For non-scheduled flight, the total maximum capacity of passengers for each such flight from Peninsular Malaysia to Sabah or Sarawak is allowed provided that all passengers on the flight are students in Peninsular Malaysia returning to Sabah or Sarawak.

    However, under PU(A) 170/2020, the holder of any air public transport license is permitted to carry the number of passengers in accordance with the direction of the Director General.[3]

    Prohibited activities

    Regulation 2 and the Schedule of the PU(A) 147/2020 provides for a list of prohibited activities which include among others, tourism services along with cruise ship activities and services at accommodation premises under the Tourism Industry Act 1992.

    The amended regulation removed “tourism services” from the list of prohibited activity. This is a good start for the tourism sector although recovery of the sector is still a long way.

    Conclusion

    As more and more sectors being allowed to operate during the Conditional Movement Control Order (CMCO), there is no longer difference between essential and non-essential service. Nearly all sectors are permitted to open except for prohibited activity as listed under the Schedule. The control of movement has shifted from “restrictive” to “eased but need to comply with the Standard Operating Procedure (“SOP”) and therefore violation of any SOP is being taken seriously by the authorities. From now on, self-discipline and the adaptation of the new normal will be pertinent if we are serious about cutting the chain of Covid-19 infection in the country.

    References:

    [1] Prevention & Control of Infectious Diseases (Measures within Infected Local Areas) (No. 6) (Amendment) Regulations 2020 (PU(A) 170/2020)

    [2] List released of 174 non-Muslim places of worship allowed to reopen | May 28, 2020 | MalaysiaKini

    [3] Prevention and Control of Infectious Diseases (Measures within Infected Local Areas) (No. 6) (Amendment) Regulations 2020 (“PU(A) 170/2020), Regulation 5

  • Parliamentary session scheduled on May 18

    Parliament in session

    The Speaker of the Dewan Rakyat issued a press statement on May 13, 2020 notifying of the order of parliamentary sessions for the Dewan Rakyat scheduled on May 18, 2020.

    According to his press statement, the order of the proceedings on May 18 shall start with the opening speech by Seri Paduka Baginda Yang di=Pertuan Agong at 10am at both Dewan Rakyat and Dewan Negara simultaneously and that there shall be no sittings after the royal speech,

    Standing Order 11(2) of the Dewan Rakyat provides that the sitting of the House in each Session is to be held on day and time as the King may appoint and the Speaker or his deputy would need to fix at least 28 days’ notice before the next Session.

    In other words, the event scheduled on May 18 is to be an opening event and 28 days were to be calculated from the opening event.

    Reason given for such arrangement was because of the ongoing Covid-19 pandemic. However, we could not be certain how long the Covid-19 pandemic will last and if the pandemic would end by the next parliamentary session. At the same time, being part the process of democracy, parliamentary session is an essential element to ensure check and balance to the governance of the country. The legislators could consider using other alternatives to conduct parliamentary sessions to ensure that the process of democracy is not being undermined even during Covid-19 pandemic. We would provide further updates here should there be any further development on the parliamentary sittings.

  • Weekly News (May 4 – 8)

    [News] May 4 - 8

    Anti-corruption

    Former prime minister’s communication adviser A Kadir Jasin has questioned the awarding of a purported RM30 million contract from the health ministry on the ground that the recipient company has no track record and is owned by Chinese businessmen. (Source: FMT)

    Banking

    Hire purchase loan repayments will remain unchanged after the end of 6 months moratorium as the loan tenure will be extended for another 6 months. (Source: FMT)

    Bank Negara Malaysia’s Overnight Policy Rate (OPR) has been cut by 50 basis point to 2%. The ceiling and floor rates of the corridor of the OPR are correspondingly reduced to 2.25% and 1.75% respectively. (Source: Bank Negara Malaysia)

    Business

    Trade and industries have urged the state governments to collectively execute the Federal government’s decision and restart the economy which was scheduled to start on May 4. (Source: NST)

    Capital market

    The Securities Commission Malaysia has issued “Guidelines on Advertising for Capital Market Products and Related Services” to promote responsible advertising and encourage greater use of digital channels. (Source: Malay Mail)

    Bursa Malaysia Bhd has granted an extension of one month for the issuance of annual reports and annual audited financial statements by listed issuers with financial years ending on March 31, 2020. The annual reports and annual audited financial statements would have to be filed by August 31, 2020 instead of July 31, 2020. (Source: The Sun Daily)

    TA Enterprise Bhd has withdrawn its voluntary takeover offer to acquire up to 39.83% stake in property group TA Global Bhd after considering the adverse impact of Covid=19 pandemic on TA Global Group in the financial year ending December 31, 2020. (Source: The Edge Markets)

    Commodity

    Malaysia’s Sime Darby Plantations warns of disruption of palm oil supply chain by a prolonged coronavirus pandemic. (Source: Reuters)

    Economy

    Penang announced a second aid package of RM76 million to be distributed to the most vulnerable group in the state. Ratepayers in the state will also enjoy a rebate on assessment rates for the year. (Source: FMT)

    Energy

    Petroliam Nasional Bhd (Petronas) has made two deepwater oil discoveries in Mexico from the Pokok-1 and Chinwol-1 exploration wells in Block 29 located in the Salina Basin, offshore Mexico. (Source: The Edge Markets)

    Health

    It is mandatory for all foreign workers in Selangor and Kuala Lumpur to undergo Covid-19 test following the report of increasing number of foreigner testing positive at a construction site. (Source: The Sun Daily)

    Seven foreigners who were placed in quarantine centre have escaped on May 4. They were believed to be Indonesians and Bangladeshis who escaped by damaging fences of the quarantine centre. (Source: The Star)

    Insurance

    HSBC agrees to buy out the remaining 50% stake in its life insurance joint venture partner in China to take advantage of China’s new ruling designed to further open up the financial services sector in the mainland. (Source: South China Morning Post)

    Judiciary

    The Sabah High Court has declared that conditions set by the Lands and Surveys Department to reduce the leasehold tenure from 999 years to 99 years for approval of the development and subdivision of land to be ultra vires, unlawful and null and void. (Source: Daily Express)

    Legal profession

    The Singapore Academy of Law will be rolling out a $1.9 million package to help the legal profession copy with the impact of Covid-19. (Source: Straits Times)

    Logistics

    E-commerce delivery firm Ninja Van raised $279 million in funding from investors including Facebook co-founder Eduardo Saverin’s B Capital and ride hailing firm Grab as the Covid-19 pandemic has led more people to shop online. (Source: Reuters)

    Movement Control Order

    Malaysia’s move to restart its economy by easing nationwide restrictions on business activities and amovement got off to a bumpy start on May 4 with six of its 13 states refusing to comply and three states would not fully ease curbs and would maintain safe-distancing measures. (Source: South China Morning Post)

    While state governments may not have legal basis to defy federal government’s decision in regards to conditional movement control order, it is best that the Federal Government consult all states in drawing up strategies to combat Covid-19. (Source: The Star)

    Senior Minister Datuk Seri Azmin Ali warns all state government to comply with the conditional movement control order failing which these states would face possible lawsuits from the affected industries. (Source: The Star)

    Manufacturing

    Federation of Malaysian Manufacturers (FMM) Sarawak branch urges the state government to balance the importance of public health with economic sustainability by allowing manufacturers to operate during this period. (Source: Borneo Post)

    Parliament

    Dewan Rakyat speaker has accepted the proposal by former prime minister Dr Mahathir Mohamad for a motion of no confidence against his successor Muhyiddin Yassin in line with Standing Order 27(3). On the other hand, the Speaker has rejected another motion by the former prime minister to retain him as head of legislature until Parliament is dissolved. (Source: FMT)

    Property

    Country Garden Holdings is the latest mainland company to jump on the TikTok live-streaming platform to launch its biggest over online property sales promotion in China. (Source: South China Morning Post)

    Social security

    The Employees Provident Fund (EPF) will be resuming Age 50/55/60 Withdrawals and mobile-I Akaun activation services beginning May 6 at approved branches through Malaysia. Services can be done at branches located within states that are implementing the conditional movement control order guidelines as well as Selangor and Negeri Sembilan. (Source: Malay Mail)

    Technology

    Electronic signature will be the new normal in business transactions as electronic signature is recognized under the Electronic Commerce Act 2006 which provides for legal recognition of electronic messages in commercial transactions. (Source: NST)

    Cybersecurity expert is unconvinced by the assurance of the country’s internet authority over fears of a possible breach of data privacy in the use of an apps to help Putrajaya manage interstate travel. (Source: FMT)

    AmBank Group aims to set up an e-marketplace for traditional business entrepreneurs to help them to sell their products and services admist the current economic challenges. (Source: Bernama)

    Utilities

    Domestic customers in Selangor and the Federal Territories of Kuala Lumpur and Putrajaya who have not registered for Air Selangor e-Bill service will receive their water bills every two months via mail. (Source: The Sun Daily)