Penning Perceptions

  • Weekly News (Apr 28 – May 3)

    [New] Apr 28-May 3

    Anti-corruption

    Malaysia has been urged to defer the enforcement of provision of Section 17A of the Malaysian Anti-Corruption Commission (MACC) Act 2018 that is to take effect from June 1, 2020 to June 1, 2021. This is to give sufficient time for companies to put up the required procedures in place especially when the Covid-19 pandemic has affected businesses. (Source: The Edge Markets)

    Banking

    Bank Negara Malaysia is unlikely to impose a ruling against dividend payout by banks to increase their capacity like what is being done in Europe. The new regulations imposed on European banks are aimed at ensuring that financial institutions are able to absorb losses and support lending to those affected by the Covid-19 crisis. (Source: The Edge Markets)

    RHB Banking Group has approved more than RM500 million Special Relief Facility (SRF) applications to help alleviate the short-term cash flow difficulties faced by Small Medium Enterprises arising from the Covid-19 pandemic. The SRF is part of Bank Negara Malaysia’s funds for SMEs with an allocation of RM5 billion. (Source: NST)

    Finance Minister requests that financial institutions consider abolishing the accrued interest on hire purchase loans as well as profit from their fixed-rate Islamic financing during the six-month moratorium period on loan repayments. (Source: Malay Mail)

    Business & Enterprise

    The Malaysian Employers Federation (MEF) hopes the government will allow small companies to operate in stages during the Movement Control Order (MCO) and revive the economy. For a start, MEF urged the government to allow companies to operate again with 30% of their employees and by adopting the standard operating procedure set by the Ministry of Health. (Source: NST)

    The Movement Control Order imposed in Malaysia have opened up another door to embrace digital platforms for traders to do their business, such as the e-bazaar platform to help traders collaborate with delivery companies and reach more customers online. (Source: The Edge Markets)

    A coalition consisting of more than 10 Malaysian business associations is calling for an urgent enactment of a Covid-19 Act. The coalition is calling for the Act to be put in place as a temporary measure until December 2020 to avoid legal disputes over contractual obligations in the post-Movement Control Order period. (Source: NST)

    The resuming of most economic sectors starting May 4 does not mean business is as usual. The reopening will come with adaptation of the new normal as precautionary measure against Covid-19 infection. (Source: NST)

    Capital market

    The Securities Commission Malaysia and Bursa Malaysia Berhad have extended the temporary suspension of short selling to 30 June 2020 from the initial targeted date on April 30. (Source: Securities Commission Malaysia)

    The Securities Commission Malaysia will allow businesses to lodge directly with the SC the issuance of their convertible notes to venture capital and private equity firms to lower the fundraising cost and expedite the process. (Source: The Edge Markets)

    Citizenship

    The Home Ministry of Malaysia has sought to clear the air over a syndicate said to be selling fake Malaysian identity cards on a website following a police report made yesterday by the National Registration Department. (Source: FMT)

    Construction

    Bina Puri Holdings Bhd has teamed up with Key Alliance Group Bhd to develop building information systems (BIS) for companies in the construction sector. The collaboration is in line with its move towards adoption of technology. (Source: The Edge Markets)

    Crime

    The establishment of the National Anti-Financial Crimes Act is seen as a necessary step towards better enforcement coordination against financial crimes and strengthening confidence in the government system in Malaysia. (Source: NST)

    Foreign affairs

    North Korea leader Kim Jong-un made first public appearance in nearly three weeks after being absent for celebration on April 15 for the birthday of his grandfather, the state’s founder which was the most important day in the country’s political calendar. (Source: Malay Mail)

    Health

    Malaysia is now in a recovery phase as it has been able to flatten the curve and have prevented the exponential surge of Covid-19 cases. (Source: The Star)

    Anyone who visited the Jalan Othman market between April 5 and 18 and purchased seafood and anyone who have purchased vegetable at the Taman Megah market on SS24 between April 11 and 25 should undergo Covid-19 screening at Taman Medan or Kelana jaya government clinic. (Source: FMT)

    Hotels & Accommodation

    Plenitude Bhd will be closing operations of three hotels namely Mercure Penang Beach, The Gurney Resort Hotel and Residences both in Penang and Travelodge Ipoh effective April 27 as a result of Covid-19 pandemic which has severely impact hospitality businesses. (Source: NST)

    Human resource

    The current labour laws need to be revised in order to suit the “new normal” following the Covid-19 pandemic to assure the welfare and safety of employees are protected under the new norm. (Source: Malay Mail)

    Infrastructure

    IJM Corp Bhd, HSS Engineers Bhd and Sunway Construction Group Bhd are among the several major construction players that received approval letter from the Ministry of International Trade and Industry (MITI) to resume construction works in Mass Rapid Transit Line 2 (MRT 2) and Light Rail Transit 3 (LRT 3) subject to health protocols that have been put in place. (Source: The Malaysian Reserve)

    Singapore has agreed to further extend the suspension of the Johor Bahru-Singapore Rapid Transit System Link project at Malaysia’s request to July 31, 2020. The RTS Link Project has been suspended since April 1, 2019 to allow Malaysia to review the project and to suggest changes for Singapore’s consideration. (Source: The Edge Markets)

    Legal Profession

    The Malaysian Bar has called on the government to provide leeway to law firms to operate during the movement control order period as the legal profession plays a critical and irreplaceable role in the economy by supporting the enabling the real property and banking sectors and sectors that include contracts and transactions, capital markets, debt recovery, insolvency and intellectual property protection. (Source: The Star)

    The 1Malaysia Development Bhd (1MDB) and International Petroleum Investment Company (IPIC) case has been nominated as one of the most important decisions for the Global Arbitration Review awards which will be held in Paris on July 9, 2020. (Source: Focus Malaysia)

    Most lawyers have questioned the Bar Council’s priorities and the timing of the new ruling that requires logos of legal firms be subject to the approval of Bar Council and the lack of explanation on the prohibition of the words “Advocates & Solicitors”, “Law Firm” and “Advocates” in logos. (Source: Malay Mail)

    Migrants

    Despite Malaysian government extending incentives to help businesses and the B40 population, there is a lack of legal and fiscal provisions to guarantee equal protection for the country’s non-citizen workforce. This means Malaysia will face a new risk when the economy fully reopens and millions of non-citizens resume work. (Source: EdgeProp)

    Movement Control Order

    Two family members are allowed to shop for necessities or to seek medical services during the Movement Control Order period effective April 29 until May 12 under the Prevention and Control of Infectious Diseases (Measures within Infected Local Areas) (No. 4) Regulations 2020. (Source: NST)

    Malaysia’s Deputy Health Minister 1 Noor Azmi Ghazali and a state executive councilor from Perak pleaded guilty to breaching the movement control order at the magistrate’s court on April 28 and were fine RM1,000. They were photographed sharing a meal with a group of people at a tahfiz in Lenggong, Perak on April 18. (Source: Malay Mail)

    Rights group Lawyers for Liberty (LFL) has urged the authorities to exercise discretion when arresting and charging people for breaching the movement control order, voicing concern over minor violations which it said do not put the wider public at risk of infection. (Source: FMT)

    Authorities must now formulate a comprehensive exit strategy to manage its economic and social recovery post-MCO and at the same time to prevent a resurgence of the virus. (Source: NST)

    Parliament

    Parliament should be made one of the sectors allowed full operation following the government’s relaxation of the movement control on companies that have earlier obtained approval from Ministry of International Trade and Industry to resume full operation. Democracy is critical to the running of transparent and responsible administration. (Source: MalaysiaKini)

    Property

    Sime Darby Property Bhd, Malaysia’s biggest property developer in terms of land bank is confident that the future property market will be promising and resilient as it has been focusing on identifying opportunities in the market to sustain its performance and remain competitive. (Source: NST)

    The expansion of e-commerce have spurred demand for warehouses/logistics-related properties but he overhang of industrial properties sub-segment has seen overhang units rising since 2015. (Source: EdgeProp)

    Social security

    Wage subsidy as a response to help employee retention has not been of much help in terms of helping the workers. Wage subsidy should be increased to cover at least the minimum wage and probably up to median wage to twice the amount. (Source: Malay Mail)

    Social Security Organisation (SOCSO) has clarified that a post on its official Twitter account stating that the funds for the Employee Retention Programme (ERP) have been exhausted was unauthorized as it does not reflect the actual progress of the ERP. (Source: Malay Mail)

    Technology

    Twitter will allow researchers to access data on real-time conversations about the coronavirus pandemic to help deepen their understanding of the disease. The project is aimed at gathering information about the spread of the illness, assessing the emergency response and communication trends during the crisis and tackling misinformation. (Source: Malay Mail)

  • Story behind the video

    [Image] Show support

    When I first proposed to my subordinate to produce a video to support the frontliners during the Movement Control Order, there were voices of discouragement. This video will be part of L&D’s initiative in our office to show our support to the front-liners. The support should not be just one time, but consistent and continuous. I believe doing what is right, so I pressed on. It will not be easy, but I took it as a challenge.

    Despite the discouragement, I asked my girl, “So, will you help me with the video?” She relied “Yes, I will help you with the video.” I replied, “That’s already enough. Let’s start work.”

    I created the story line and selected my first choice of background music, the images and caption for production of the video. My girl arranged the images, the caption with the background music. First draft she showed me, NG. The timing of the images does not go well with my selection of background music. Second take, NG. Third take, NG until nearly 20 NGs and I was still not satisfied. I said to my girl, “Let’s change to another music”. I sent her my second choice of background music to attempt again. Not as good as the original choice, but acceptable.

    Second draft she showed me, first take, NG. Second take, NG. I remembered until nearly 5 to 6 NGs and it finally passed my hurdle. Both of our response after production of the video, “Yay, we passed through another challenge!”. It is something that we took pride on. I said to my girl, “So, if you have given in earlier to the voices of discouragement, do you think you will feel what you are feeling today?” She nodded and thankful that I have pressed on.

    Though at the end the credit of production of the video goes to others, but behind it, I know the sweat behind the production. It was a personal feat.

    I also took this opportunity to show support for the front-liners and I believe that the front–liners need our support not just yesterday but today and tomorrow. Today is Labour Day and they ought to be recognized for their hard work and sacrifices for us.

    This will however be my last production of video for the firm as I will be attempting more challenging tasks next. I need it for stimulation and growth.

    #Supportfrontliners

    #ChallengeOneself #GrowthMindset

  • Weekly News (Apr 11-17)

    [News] Weekly News (Apr 11-17)

    Anti-corruption

    The Securities Commission Malaysia said only 59% of listed companies in Malaysia had anti-corruption policies in place and majority of these policies required enhancement to bring them in line with the Guidelines on Adequate Procedures issued by the Prime Minister’s department. (Source: The Edge Markets)

    Those appointed to positions of leadership at government-linked corporations (GLCs) must possess the relevant academics or professional qualifications in line with the guidelines in the National Anti-Corruption Plan. (Source: FMT)

    Aviation

    Malaysia Airlines will be reinstating one-time weekly flights to Kota Kinabalu, Kuching and Miri beginning this week. Malaysia Airlines will operate flights for the Kuala Lumpur-Kota Kinabalu-Kuala Lumpur and Kuala Lumpur-Miri-Kuala Lumpur sectors on Thursdays while Kuala Lumpur-Kuching-Kuala Lumpur sector on Fridays. (Source: The Malaysian Reserve)

    Banking

    Bank Negara Malaysia said it would not select random individuals to beta test its mobile applications or system. It will never ask for personal information via online platforms, phone call, short message services or WhatsApp. (Source: NST)

    Business and corporation

    A hairstylist association disagrees with the government’s move to allow barbershops and saloons to resume service during the movement control order period even though sectors that were allowed to operate during the period must comply with existing guidelines. (Source: FMT)

    The Malaysia Retailers Association has urged the Malaysian government to declare Covid-19 outbreak a “force majeure” and to introduce legislation to offer temporary relief to businesses unable to fulfill their contractual obligations. Singapore had implemented a similar move to protect those unable to fulfil their contractual obligations because of the pandemic. (Source: FMT)

    The Companies Commission of Malaysia has increased the threshold of indebtedness of companies from RM10,000 to RM50,000 and lengthened the period to answer the notice of claims by a creditor company from the current 21 days to six months. (Source: The Star)

    Capital market

    The Securities Commission Malaysia announced that Bursa Malaysia will temporarily suspend certain parts of Practice Notice 17 (PN17) or Guidance Note 3 (GN3) classification on companies on the Main Market and the Ace Market in view of the current trying times. The relaxation period begins on April 17 until June 30, 2021. (Source: The Star)

    Construction

    While contractors welcomed the government’s decision to allow several critical sectors including construction to resume operation during the Movement Control Order, they are worried that the damage to the construction sector would worsen if no measures are taken. (Source: NST)

    Constitution

    Women rights group Sisters in Islam’s (SIS) leave application in the Federal Court has been fixed for hearing on June 22. SIS is seeking a declaration that a Selangor enactment allowing the state Shariah High Court to review fatwas issued by the state religious authorities is unconstitutional. (Source: FMT)

    Education

    The Higher Education Ministry has offered grants to conduct research on critical areas that are in close association with the community in dealing with the aftermath of the Covid-19 pandemic. Application for the grant is open from April 15 to 30, 2020 with the research to be conducted in six months. (Source: Malay Mail)

    Standard Six Primary School Achievement Test (UPSR) and Form Three Assessment (PTE) examinations are cancelled while the Malaysian Education Certificate (SPM) and the Malaysian Vocational Certificate (SVM) examinations for Form Five students and Malaysian Higher Education Certificate (STPM) and Malaysian Higher Islamic Religious Certificate (STAM) for Form Six students will be postponed. (Source: Malay Mail)

    The Ministry of Education will inform parents two weeks earlier before any move to reopen the schools. When schools reopen, social distancing will be among the priorities and the ministry will publish strict guidelines for school operators, teachers and students. (Source: Malay Mail)

    E-commerce

    Lazada Malaysia has launched a stimulus package “Pakej Kedai Pintar” to aid local small and medium enterprises (SMEs) from April to June 2020 as part of its ongoing corporate community commitment. The package starting with RM10 million aims to help SMEs sell online, stabilize jobs and support the country’s economy during the Covid-19 pandemic. (Source: NST)

    Employment

    The Malaysian Employers Federation (MEF) had advised companies to consult the Labour Department before laying off staff or cutting back on working hours after reports of some workers that have been filing complaints against their employers for laying them off in the wake of the Covid-19 pandemic. (Source: FMT)

    Health

    Health Ministry needs to be supported adequately, a realistic and logical private-public partnership in the health sectors, optimization of interagency coordination are among the steps needed to combat the next wave of Covid-19 infection. (Source: FMT)

    New Covid-19 zoning system will be out soon to give greater details of the actual situation on the ground. Classification of the Covid-19 zones under the new zoning system would be based on the number of infections recorded in every sub-district. (Source: NST)

    The latest Standard Operating Procedure for companies allowed to operate during Phase 3 of the Movement Control Order will now require employees who will be on duty to undergo Covid-19 testing to ensure the employees do not have the virus. (Source: EdgeProp)

    Judiciary

    Moving to online hearings was always part of the Singapore judiciary’s vision, but the Covid-19 pandemic has hastened its implementation. Justice Aedit Abdullah who chairs Singapore Academy of Law’s (SAL) Legal Education Cluster and co-chairs its Legal Technology Cluster shared 7 tips on appearing professionally online and how to deal with the inevitable technical issue. (Source: Singapore Academy of Law)

    Legal profession

    Among the latest standard operating procedures for legal firms permitted to operate during the third phrase of the Movement Control Order are that the guideline only applies to conveyancing and corporate branches while the litigation branch and others are not included in the legal services for the purpose of the SOP. Only premises located within the green zones allowed to operate. Operating times were shorted from 10am to 4pm and limited to two days in a week which are on Tuesdays and Thursdays. (Source: NST)

    Property

    Property prices are expected to decline by as much as 20% in the next few months with more motivated sellers as the impact of Covid-19 continues to unfold. (Source: The Edge Markets)

    Social responsibility

    More than 800 homeless people currently placed in four community centres in Kuala Lumpur will be offered jobs once the movement control order is lifted so that the homeless do not need to wander in the streets and will be paid between RM1,200 and RM1,400. (Source: FMT)

    Social security

    The Employees Provident Fund (EPF) has extended the date for employers to remit their mandatory contribution for the salary month of March 2020 (April contribution) from April 15 to April 24. (Source: The Star)

    The Social Security Organisation (SOCSO) has received almost 130,000 applications including 1.07 million employees for the wage subsidy scheme as of April 15. About 124,106 are companies with a workforce of below 75 employees, 3,716 are companies with between 76 and 200 workers and 1,217 companies with more than 201 staff. (Source: The Star)

    Technology

    Malaysian scientist have created a barrel-shaped robot on wheels that they hope will make the rounds on hospital wards to check on Covid-19 patients, reducing health workers’ risk of infection. (Source: Channel News Asia)

    Google-owned GPS app Waze adds Covid-19 related information like “critical” locations and critical locations like emergency food distribution locations to its maps. The company has also begun identifying places that offer drive-thru or curbside pickup to help customers know where they can safely get their essential needs met while avoiding as much contact as possible. (Source: The Star)

    Telecommunication

    Telecommunications companies and Internet Service Providers (ISPs) are working hard to reduce the strain that residential connections are experiencing which was caused by the surge in internet demand from households due to the Movement Control Order. (Source: The Sun Daily)

    Transportation

    PICKnGO has offered taxi drivers the option to joining their delivery services to supplement their income during the Movement Control Order. Customers need only book a ride through their mobile app and leave a relevant remark or description for a delivery order in the message section. (Source: NST)

  • Weekly News (April 4-10)

    [News] Weekly News (Apr 4-10) [WP]

    Banking

    CIMB has issued a statement denying any suspicious activity on its platform after a viral WhatsApp message claims Zoom is to be blamed for the recent ‘direct debit’ issue that has affected some customers. CIMB stated that its operates within strict security guidelines and adheres to all regulatory, legal, compliance and risk requirements. (Source: The Star)

    Capital market

    The Securities Commission Malaysia (SC) has reminded fund management and unit trust management companies of their obligations to act in the best interest of investors at all times. Good governance, proper conduct and continuous compliance to capital market regulations are important to the functioning of capital market intermediaries. (Source: NST)

    Corporate

    Khazanah Nasional Bhd is not convinced by Golden Skies Ventures Sdn Bhd’s US$2.5 billion (RM10.88 billion) offer to fully acquire its subsidiary Malaysia Airlines Bhd despite the latter having claimed a financing back up from a European bank. (Source: NST)

    Credit facility

    The Licensed Money Lenders Association or the Credit Community as well as the pawnbrokers association have agreed to a three-month moratorium to ease the burden on borrowers. The premises of companies from the credit community or pawnbrokers are also allowed to operate for two days a week with limited operating hours from 9am to 2pm to allow SMEs to carry out their transactions. (Source: The Edge Markets)

    Crime

    Courts in several states in Malaysia had meted out penalties in the form of fines of RM300 to RM1,000 and community service on offenders of the movement control order instead of imprisonment. Prior to this, some courts have jailed offenders for between several days and three months apart from imposing fines for breaching the MCO. (Source: MalaysiaKini)

    Education

    Covid-19 outbreak has not only caused economic downturn of countries, another side effect of the pandemic is education, one of the major drivers of human capital development. In Indonesia, the Education and Culture Ministry has launched its website to facilitate online learning during the pandemic. (Source: JakartaPost)

    Energy

    The Organization of the Petroleum Exporting Countries (OPEC) and other countries including Russia reached a tentative agreement to temporarily cut large volumes of production. Possible further trims could come from a meeting of the Group fo 20 nations on April 10. (Source: New York Times)

    Governance

    Malaysia needs to make way for a more radical and sustainable exit strategy and introduce a new normal to the society post-MCO. People need to adopt to a new way of life. (Source: The Star)

    Health

    The first consignment of personal protection equipment (PPEs) designated for Sabah and Sarawak by The Edge Covid-19 Equipment Fund was flown out on April 7 by a Royal Malaysian Air Force plane. Sabah will get 114,000 face masks and 9,340 protective suits while Sarawak will get 98,000 masks and 3,550 protectie suits. (Source: The Edge Markets)

    The National Security Council (NSC) and the Home Ministry are expected to introduce new standard operating procedures (SOP) for different types of Covid-19 zones in the country soon. (Source: NST)

    UK Prime Minister Boris Johnson left intensive care as he continues to recover from Covid-19 but remained under close observation in hospital. Johnson was the first world leader to be hospitalized with the coronavirus, forcing him to hand control of the world’s fifth-largest economy to foreign minister Dominic Raab. (Source: MalaysiaKini)

    The Movement Control Order has been further extended to April 28 to curb the spread of Covid-19 in the country. However, selected sectors will be opened in stages and will operate according to a standard operating procedure. (Source: FMT)

    Income Tax

    The Inland Revenue Board (LHDN) has reminded Malaysians not to be fooled by scammers sending text messages from personal phone numbers claiming that they have qualified for Bantuan Prihatin Nasional (BPN). LHDN has clarified that it will only send text messages from the numbers 62000 or 63833. (Source: The Star)

    Insolvency

    Bankrupt individuals who are eligible to receive Bantuan Prihatin Nasional (BPN) are not required to report it to the Department of Insolvency. The department had decided to waive the requirement for bankrupt individuals to report receipt of monies from BPN as required under Section 38(1)(ba) of the Insolvency Act 1967. (Source: Malay Mail)

    Insurance

    The Life Insurance Association of Malaysia (LIAM), Persatuan Insurans Am Malaysia (PIAM) and the Malaysian Takaful Association (MTA) has launched the Covid-19 Test Fund (CTF) aimed at testing more than 26,600 Malaysians. The fund would subsidise the costs of the test for policyholders who are most at risk for Covid-19 with a maximum reimbursement of RM300 per test. (Source: The Edge Markets)

    Lawsuit

    Office sharing giant WeWork sued SoftBank claiming the Japan-based technology investment group breached its contractual obligations by backing out of a $3 billion rescue plan. (Source: The Malaysian Reserve)

    Legislation

    Under Singapore’s Covid-19 (Temporary Measures) Bill, there are 12 situations an individual may leave his or her home, among others, to work for or with an essential service provider, to procure any goods or services from an essential service provider or a specified school, to engage in any recreational activity in an open-air stadium, public path or public park alone or with any other individual who lives with him and to assist any individual who has a physical or mental disability or is below 12 years of ago or above 60 years of age. (Source: Straits Times)

    Malaysia should enact a law similar to the Bill proposed by the Singapore government to offer temporary relief to businesses, in particular SMEs and individuals who are unable to perform their contractual obligations because of the movement control order (MCO) brought about by the Covid-19 pandemic. (Source: The Star)

    State assemblies and Parliament meeting should go on as the state constitution must be followed whether MCO or not as all state assemblies must convene not later than six months from their last sitting. The meeting could be done using video conferencing to observe social distancing. (Source: FMT)

    Philanthropy

    China’s richest person, Jack Ma is now playing a prominent role in philanthropic efforts to help President Xi Jinping improve the country’s image overseas after Covid-19 spread around the world, The US government has thanked Ma as well as Alibaba co-founder and the Chinese government for the delivery of 1,000 ventilators to New York state. Ma has also donated at least 18 million masks, testing kits and other supplies to more than 100 countries worldwide. (Source: The Edge Maekets)

    Precious metal

    Gold edged higher on Wednesday as the rising coronavirus death toll hammered risk sentiment. In the mid to long term, gold has upside due to quantitative easing and monetary stimulus efforts by global central banks. (Source: The Edge Markets)

    Social group

    A boat with some 250 Rohingya refugees on board reached the shores near Langkawi in the wee hours of Sunday morning and so far the Malaysian Maritime Enforcement Agency (MMEA) has rounded about 100 of them while 100 of the refugees were still in the water attempting to swim to the shore. (Source: The Star)

    Social security

    Social Security Organisation (SOCSO) has clarified that the coronavirus disease (Covid-19) is recognized as an occupational disease as contraction of disease such as the Severe Acute Respiratory Syndrome (SARS) and other forms of coronavirus in the line of duty was already addressed in the 5th Schedule of Employment Social Security Act 1969 as an occupational disease. (Source: Malay Mail)

    Technology

    Thousands of Zoom video call recordings have been left exposed on the open web, ranging from personal therapy sessions to online classes where schoolchildren’s details were visible to anyone viewing the recordings. (Source: The Star)

    WhatsApp is imposing tighter restrictions on how many times users can forward a message in its latest effort to minimize the spread of misinformation. For any message that is deemed “highly forwarded”, users will now only be able to forward it to one chat. (Source: Channel News Asia)

    Telecommunication

    Digi Telecommunications Sdn Bhd is offering free Covid Cover insurance plan to the first 200,000 customers. The plan offers 30-day coverage to customers who may require hospitalization and treatment during Covid-19 crisis and includes a Hospital Cash benefit of RM60 a day for hospitalization due to Covid-19 and a death benefit of RM20,000. (Source: Bernama)

    The Malaysian Communications and Multimedia Commission (MCMC) has reported of a drop of 4G download speed by a third during the second week of the Movement Control Order. The surge in bandwidth demand locally is fueled by higher usage of video conferencing, learning and shopping over the internet caused by the implementation of the MCO, (Source: The Edge Markets)

    Trade and business

    Klang Chinese Chamber of Commerce supports an extension of the movement control order if it is necessary to curb the spread of Covid-19 pandemic and urged businesses must start strategizing on how to minimize the economic damage caused by the worldwide pandemic. (Source: The Star)

    CGS-CIMB Securities Sdn Bhd has become the first broker in Malaysia to launch retail Islamic cross-borer trading (ICBT) services through its online platform CGS-CIMB i-Trade. (Source: The Sun Daily)

    Ten shops ranging from mobile phone retailers to money changers in Singapore were instructed by the authorities to cease their operations on the first day of the month-long “circuit-breaker” imposed by the Singapore government to curb the spread of Covid-19. (Source: TodayOnline)

     

  • What is a Writ of Distress?

    {DidYouKnow] Writ of Distress

    A writ of distress is a remedy available to a landlord to distrain assets of a tenant of premises to recover up to 12 months of rental arrears. This is a remedy available to the landlord provided under the Distress Act 1951. The writ enables a landlord to direct the court bailiff to seize the tenant’s assets from the rented premises and auction them off to recover the rental arrears.

    As the nature of writ of distress is to enable a landlord to distrain movable assets of the tenant in order to recover rental arrears, a landlord need not terminate the tenancy agreement before making application for a writ of distress. Even after termination of the tenancy agreement, a landlord may choose to issue writ of distress to recover any rental arrears, provided of course that the tenant is still occupying the premises with his assets that can be distrained by the landlord.

    The 12 months of rental arrears will be calculated from the date of making the application to court to issue writ of distress under Section 5(1) of the Distress Act 1951.

    Enforcing a writ of distress does not mean that the landlord can get all movable properties of the tenant in the rented premises. Section 8 of the Distress Act 1951 provides that the bailiff cannot seize certain items such as the tenant’s necessary wearing clothes and bedding for himself and his family, his tools if  there is other movable assets in the premises that can cover the amount due or goods of the tenant that he uses for his trade or business. If violated, the landlord may be liable for action of trespass for wrongful seizure.

    #WritofDistress  #LandlordTenant  #TenancyAgreement

  • Her voluntary service is exemplary

    Retired nurse volunteered service WP

    Sharing the story of Biby Maideen, a 68-years old retired nurse has volunteered her service to help the frontline. She is answering calls from the government for retired doctors and nurses to step up in the nation’s fight against Covid-19.

    She says that senior retired staffs like her may not be directly in the frontline but she can still help in simpler tasks or even administrative duties to lighten the burden placed on the healthcare system. Bibi obtained her nursing diploma in 1974 in the United Kingdom and worked there for three years before returning to Malaysia and worked in both private and public health service before her retirement. During her service in UK, she has gained experience managing numerous contagious diseases.

    As to why she wants to volunteer her service, she gave a very inspiring answer, “If I sit at home, I will still die when the time comes. It’s what you can do, even if it is a small help.”

    Her voluntary service is exemplary, especially during this challenging time when Covid-19 pandemic has caused so much fear to the people. Let’s give her a shout-out by sharing her story!

    #SpiritOfVolunteerism

  • Weekly News (Mar 28-Apr 3)

    [News] Mar 28-Apr 3 [CA]

    Banking

    Bank loans processing will continue to be carried out during the MCO although customers may experience some delays due to service disruptions as the processing is being carried out remotely during the MCO to ease any backlogs and delays. (Source: The Star)

    Corporate and Enterprises

    Bursa Malaysia Bhd has successfully implemented the ISO 20022 messaging standard for corporate announcement by public listed companies to expedite the global dissemination of these updates to the stock exchange operator and regulator’s stakeholders. (Source: The Edge Markets)

    The Small and Medium Enterprises (SMEs) play an important and crucial, pivotal role in the development and growth of the Malaysian economy and it is vital for the government to increase and enhance the measures that had been announced in Prihatin to save companies from bankruptcy as well as help them to recover quickly once the pandemic is over. (Source: MalaysiaKini)

    Government linked companies (GLCs) play important roles in helping the government to formulate comprehensive economic strategies during and after the Movement Control Order. (Source: The Malaysian Reserve)

    The coronavirus pandemic gives rise to the major risk of companies and small businesses in Malaysia going insolvent and they may consider the restructuring and rescue options for businesses, among others, corporate voluntary arrangement, judicial management, scheme of arrangement. (Source: The Edge Markets)

    Boustead Heavy Industries Corp Bhd has appointed Sharifuddin Md Zaini Al-Manaf as its new chief executive officer effective April 1. He was with Shell Bitumen business manager for Malaysia, Singapore and Indonesia prior to this appointment. (Source: The Edge Markets)

    Crime

    Three men have failed in their challenges against Section 377A of the Singapore Penal Code which criminalizes sex between men. The section provides that any man who commits any act of gross indecency with another man in public or in private can be jailed for up to two years and it extends to any man who abets such an act, procures or attempts to procure such an act. (Source: CNA)

    Education

    Uni Enrol, an authorized online platform of 70 reputable colleges and universities in Malaysia works to pair students with their most suitable study courses and eligible scholarships without any charge. It has helped hundreds of school-leavers across Malaysia successfully apply for their desired higher learning institution, education programme and scholarship. (Source: The Star)

    Employment

    With the government’s wage subsidy program being put in place for three months subject to employer having suffered a loss of income of more than 50% since Jan 1, 2020, any retrenchment plan should be put on hold during implementation of the program. Even any pay-cut or taking of annual leave during the MCO should be done with the consent of both the employer and employee. (Source: The Edge Markets)

    The Human Resources Ministry has listed some ‘dos and donts’ for employers and employees following the extension of the movement control order between April 1 to 14. If an employee tests positive for Covid-19, employers can place workers on leave to safeguard their safety and health but employers cannot force employees to go on unpaid leave. (Source: The Star)

    Health and Disease

    The Menara One will be the third place where enhanced movement control order has been placed after two villages in Johor and an area in tahfiz schools in Hulu Langat. (Source: The Star)

    Starting April 1, all business premises and stores nationwide will be limited to only operate between 8am to 8pm daily following a new standard operating procedure set by the authorities. The new SOP is part of the second phase of the Movement Control Order (MCO) in light of the Covid-19 pandemic. (Sorce: The Rakyat Post)

    Beginning April 3, Malaysians returning from abroad will be brought by the authorities straight to quarantine centres from the airport to undergo their compulsory 14-day quarantine at designed centres. (Source: Malay Mail)

    Human Resources

    The Human Resources Development Fund (HRDF) will grant a levy exemption to more than 30,000 of its registered employees for six months beginning on April 15. The employers will automatically be exempted from paying the levy and no application for exemption is required. (Source: FMT)

    Insurance

    Bank Negara Malaysia acknowledges the main pain points of motorist in involved in motor claims process and concluded that Malaysian motorist could have an easier and quicker process to claim for motor insurance payouts if this is reformed. (Source: Malay Mail)

    Insurance policyholders and takaful participants with group/individual medical and health insurance policies and takaful certificates who have been referred by registered doctors to undergo Covid-19 tests at recognized private labs listed on the Ministry of Health’s Covid-19 website would be eligible to claim from the Covid-19 Test Fund (CTF). (Source: Malay Mail)

    Judiciary

    The Federal Court cannot discard the presence of counsel when hearing application for leave and is urged to exercise its jurisdiction within the written law of the federation. (Source: Free Malaysia Today)

    Legal Profession

    The Malaysian Bar is urging the government to provide more relief for law firms affected by the Movement Control Order (MCO) as there were “insufficient provisions” for the firms in the recently announced stimulus package. (Source: The Star)

    Legislation and procedure

    Singapore will table a new Bill to protect individuals and companies unable to fulfil their contractual obligations because of the Covid-19 pandemic. The Covid-19 (Temporary Measures) Bill is a whole-of-government effort involving agencies such as the Ministry of Finance and the Ministry of Trade and Industry as well as committee members from the private sector. (Source: The Star)

    Following a request by the police, the Federal Court has allowed remand proceedings of people suspected of flouting the MCO to be done at police stations rather than the courts. (Source: The Edge Markets)

    Manufacturing

    The Federation of Malaysian Manufacturers (FMM) has called for the relaxation of some measures introduced in the Prihatin Rakyat Economic Stimulus Package to help ease the immediate cash flow and financial constraints of businesses due to the Covid-19 and movement control order. (Source: The Sun Daily)

    Property

    The Real Estate and Housing Developers’ Association (REHDA) is in talks with Bank Negara Malaysia to work out plans to help the property market at a time when the country is on the brink of technical recession. Banks have been extending a helping hand to borrowers by not compounding the interest on loans during the six-month moratorium announced last week. (Source: The Sun Daily)

    The Malaysian Institute of Estate Agents (MIEA) has made a call to the Government for assistance to help real estate agents and real estate negotiators who were affected financially as they were unable to perform their tasks during the Movement Control Order (MCO). Among others, is the request to put on hold the collection of Sales and Services Tax (SST) for real estate transactions until end of the year to help sellers from having to incur additional costs. (Source: NST)

    Retail and trade

    Starting April 1, the ceiling price for the 3-ply face masks is fixed at RM1.50. As for hand sanitizers, there is no ceiling price for the same as the supply comes from both locally and externally and prices vary according to brands. (Source: The Star)

    Ramadan bazaars throughout Selangor will be cancelled until further notice due to the Covid-19 pandemic. Selangor follows in the steps of Melaka, Negeri Sembilan, and Terengganu who have cancelled this year’s Ramadan bazaars as part of their efforts to stem the number of Covid-19 positive cases from increasing. (Source: Malay Mail)

    The Consumers Association of Penang has urged the public to keep an eye out for fake goods sold online including essential items like hand sanitizers and face masks and has urged the domestic trade and consumer affairs ministry to carry out checks to prevent unscrupulous parties from taking advantage of buyers during the Covid-19 crisis. (Source: FMT)

    Society

    Two weeks of a government-enforced “stay-at-home” order have ostensibly led to an increase in domestic violence in Malaysia as the country continues to observe movement restrictions that have been extended to April 14. (Source: Malay Mail)

    Technology

    Videoconferencing group Zoom pledged to step up privacy and safety controls after a series of complaints about the application which has surged in popularity during the coronavirus pandemic. The move came after the FBI highlighted the problem of “Zoombombing” by hackers or uninvited guests who harass Zoom video conferences with hate speech or pornography. (Source: The Star)

  • What makes a truly great leader?

    [Image] Leadership 2

    Most of the time people promoted into leadership positions these days are promoted because of their technical or task related abilities but do you know that this is a common pitfall many companies are guilty of committing?

    We promote our best fork-lift driver to supervisor and now we have created two problems. We have got a lousy supervisor and we have lost our best fork-lift driver. So, if leadership is not about technical or ability, what then makes a great leader?

    First, understand that all of life is relational – with God, self and others. And this is even true in business because without people, there is no business. Healthy families, healthy teams, healthy churches, healthy business and even healthy lives are about healthy relationships. Therefore, truly great leaders are skilled at building healthy relationships.

    Second, to have a healthy and thriving business, there must be healthy relationships with the C.E.O.S. I don’t mean the Chief Executive Officers, but the Customers, the Employees, the Owners and the Suppliers. For example, if our customers are leaving and going to the competitor, we have a relationship problem. We are not identifying and meeting their legitimate needs.

    Third, important rule in business – if we do not meet the legitimate needs of C.E.O.S. someone else will.

    So, you can see now that the simple essence of leadership is not about technical or task oriented, but it is all about the ability to build healthy relationships.

    #Leadership

  • Weekly News (Mar 21-27)

    [News] Mar 21-27 [CA]

    Banking

    The Malaysian Trades Union Congress (MTUC) has requested Malaysian banks to provide some form of flexibility to credit card holders affected by the Covid-19 fallout, who may be facing difficulty in settling their monthly dues. (Source: Malay Mail)

    Banking customers including individuals and small and medium sized enterprises (SMEs) will be allowed to delay the repayment of their existing loans including mortgages and hire-purchases for a period of 6 months as Bank Negara’s new measures to assist borrowers experiencing temporary financial constraints due to the Covid-19 outbreak. (Source: The Star)

    OCBC Bank Bhd and its Islamic banking subsidiary, OCBC Al-Amin Bank Bhd will absorb the RM1 automated teller machine’s (ATM) cash withdrawal fee levied to its customers for using another bank’s ATM effective March 25 until the end of April. (Source: The Edge Markets)

    Bank Negara Malaysia will be release its Annual Report 2019, Economic and Monetary Review 2019 and the Financial Stability Review for Second Half 2019 on April 3. (Source: The Star)

    Capital Market & Equity

    The Securities Commission Malaysia will waive the annual licensing fees for 2020 on the core regulated activity of all Capital Markets Services Licence (CMLS) entities with pre-tax profit of RM5 million or less during financial year 2019. (Source: The Edge Markets)

    Investors of real estate investment trusts (REIT) dump stocks in a rush to liquidate amidst the Covid-19 outbreak and the lockdowns that ensued around the world, including Malaysia’s movement control order. (Source: The Edge Markets)

    Construction

    More contractors in Singapore are worried about penalties for project delays and have been contacting lawyers for advice. Most construction contracts in Singapore do not have specific clause that allow a contractor to seek relief and this has prompted Singapore’s Building and Construction Authority (BCA) to advise government agencies to take a sympathetic view of construction project delays and grant requests for extension of time for their completion. (Source: Singapore Law Watch)

    Economy

    The government has established a specific platform for members of the public and those in the private sector to give input on how best to mitigate the economic impact of the Covid-19 pandemic. Any suggestions made to the government through the platform will be studied in detail and will be made as an input to the government. (Source: Malay Mail)

    Malaysian Prime Minister Tan Sri Muhyiddin Yassin has unveiled an economic stimulus package known as package prihatin or caring package valued at RM250bil whereby RM128bil is to be used to protect the welfare of the people, RM100bil to support business including small and medium enterprises. (Source: The Star)

    Energy

    Brent oil futures may be trading at $27 per barrel but oil producers are selling their crude in the physical market at lower prices not seen since the aftermath of the Asian financial crisis of the late 1990s. (Source: The Star)

    Healthcare & Disease

    At a time when Malaysians are being called upon to make sacrifices for the nation, private hospitals are expected to step forward to offer to take some of the burden of the public sector at subsidized or no cost at all. (Source: MalaysiaKini)

    Malaysia received more than 20,000 medical devices from China for use by the Royal Malaysian Police (PDRM) personnel. China has contributed 1,000 face masks, 20,000 medical masks, 100 protective clothing and 100 goggles specially for police personnel. (Source: MalaysiaKini)

    Malaysian is expected to see a peak in cases occurring around mid-April as the peak period would only last for approximately one-and-a-half to two weeks. The spike in the number of positive cases reported over the last few days suggested that the country was entering into the graphical reference of the “curve acceleration stage”. (Source: Malay Mail)

    Judiciary

    Seven judicial commissioners on probation were confirmed as High Court judges today in a brief ceremony due to the movement control order. The seven were Rohani Ismail, Anslem Charles Fernandis, Ahmad Fairuz Zainol Abidin, Mohd Radzi Harun, Aliza Sulaiman, Meor Hashimi Abdul Hamid and Lim Hock Leng. (Source: Free Malaysia Today)

    Learning & Development

    As remote work becomes prevalent, it does bring challenges being how to change the way managers think about remote working. Try tying flexible work to the company’s goals and objectives in measurable ways. Identify how flexible work affects the bottom line. (Source: Chief Learning Officer)

    Property

    Tan Sri Dr Lim Wee Chai, founder and executive chairman of Top Glove Corp Bhd has emerged as a substantial shareholder in LBS Bina Group Bhd after purchasing 103.13 million shares or a 6.81% stake in the property developer. (Source: The Edge Markets)

    Malaysia REIT Managers Association (MRMA) will appeal to the government for additional reliefs in the form of further adjustments on electricity tariffs, withholding tax exemptions for unit holders as well as subsidies for statutory contributions during the implementation of the movement control order. (Source PropertyGuru)

    Property managers are calling for clearer guidelines to be drafted by the government and relevant authorities on how property managers should conduct their duties during periods of crisis such as the going Covid-19 outbreak. (Source: EdgeProp)

    Retail

    Sunway Malls are granting RM20 million rent-free to its non-essential trade retailers for the 14-days period of the movement control order (MCO) as the impact of the MCO has put a tremendous strain on revenue and cash-flow. (Source: Malay Mail)

    Government agencies have been urged to coordinate better and issue clear directives to all, in particular to the recent face mask requirements for supermarkets, wet markets and restaurants as the directives has caused much confusion to the public. (Source: The Star)

    Safety and Security

    The Prime Minister in making the announcement of extension of Movement Control Order (MCO) to April 14 has revealed that the upward trend of Covid-19 infection rate will continue for a while before the government can see a decline in the number of new cases. (Source:  The Star)

    Only one representative of a family is allowed to go out to purchase the daily essential under Movement Control Order (MCO). The head needs to explain to the authorities should additional person is needed to follow them during their outing. (Source: Malay Mail)

    A total of 409 institutions and government departments has been designated as Covid-19 quarantine stations under the Prevention and Control of Infectious Diseases Act 1988 for house Malaysians evacuated from countries badly affected by the coronavirus outbreak as well as Malaysian tabligh event attendees returning from Indonesia, the Philippines and India. (Source: NST)

    Four locations in the federal capital considered as “Covid-19 red zones” have been placed under intensive monitoring by the authorities during their Movement Control Order (MCO) enforcement activity. These areas as the Lembah Pantai parliamentary constituency, Titiwangsa, Kepong and Cheras. (Source: NST)

    Social security

    The Malaysian Trades Union Congress (MTUC) has criticized Putrajaya’s decision to allow Employees’ Provident Fund contributors to withdraw RM500 a month until December as this will result in the loss of annual and compounded dividends in the long run and deplete an employee’s long-term savings. (Source: FMT)

    Technology

    Members of the public who are currently working from home during the current movement control order (MCO) are advised to follow best practices to reduce risks of any cyberattacks. This includes the Virtual Private Network (VPN) being used to access internal systems from outside the office, network infrastructure devices and devices used for remote access. (Source: The Star)

    Malaysia Digital Economy Corporation (MDEC) has called on the public to turn to e-learning platforms and digital alternatives as a way to overcome the challenges during the Movement Control Order (MCO) period. The Covid-19 pandemic will have a long-term impact on the behavior and attitude towards digital in Malaysia including the way education is delivered in the country. (Source: Bernama)

    Trade

    Malaysia’s Ministry of International Trade and Industry (MITI) had received a petition from NS Bluescope Malaysia Sdn Bhd requesting for an anti-dumping investigation to be conducted on imports of flat-rolled products of non-alloy steel coated or plated with aluminium and zinc originating or imported from China, South Korea and Vietnam. (Source: The Edge Markets)

    Transportation

    Many people have been caught off-guard by the sudden disruption in public transport services in Sarawak as the nationwide movement control order (MCO) is about to enter its second week. Operators of stage and express buses, express boats and hired longboats are cancelling their services abruptly due to fears over the spread of Covid-19. (Source: The Star)

    The government says there is no need to renew road tax for all vehicles in view of the movement control order. However, drivers are advised to carry their insurance cover notes while driving during the MCO period at all times. (Source: Free Malaysia Today)

    Singapore will be extending the Vehicle Entry Permit (VEP) validity period for Malaysia registered vechicles until June 30 this year. However motorist need to ensure that they have sufficient value in their Autopass cards for Singapore’s VEP fee, Reciprocal Road Charge for foreign cars, ERP charge and toll paymets before driving out of Singapore. (Source: Malay Mail)

  • Admissibility of criminal conviction in civil cases to be reviewed?

    Conviction

    During my legal practice in Malacca, I regularly appeared before the Magistrates and Sessions Courts for civil matters. Back then, as the Magistrates and Sessions Court judges heard both civil and criminal cases, I had the opportunity to also observe how criminal cases were handled.

    I have noted that the defendants prosecuted in criminal case for causing an accident would, most often than not, pleaded not guilty to the charges and claimed for trial. I later found out that had the defendants pleaded guilty to the criminal charges, their guilty plea could be used against them in civil cases, if let’s say, the accident victim decide to claim for damages.

    In a recent development regarding the murder of Altantunya Shaaribu, a civil action has been brought by the deceased’s father and family members against the accused: two policemen, Azilah Hadri and Sirul Azhar Umar, a political analyst, Razak Baginda and the Government of Malaysia. The claimants have sought to admit the criminal conviction of the two policemen, as pronounced by the Federal Court in 2015, in order to prove liability in the civil claim. However, the High Court had refused admissibility of this criminal conviction on the ground of irrelevancy pursuant to Section 43 of the Evidence Act 1950 which provides:

    “Judgments, orders or decrees other than those mentioned in ss. 40, 41 and 42 are irrelevant unless the existence of such judgment, order or decree is a fact in issue or is relevant under some other provisions of this Act.”

    Whilst a guilty plea and a conviction in a criminal proceeding seem to be closely related, why are they being treated differently when it comes to admissibility as evidence in civil court proceedings?

    Difference between a guilty plea and a conviction in a criminal case

    When an accused pleads guilty to a criminal charge, it is an admission on part of an accused as to the commission of an offence. An admission is admissible evidence in Court.[1] As rightly stated in Re Hardjo Soekatmo (deceased),[2] “It is settled law that a conviction obtained against a defendant in criminal proceedings is inadmissible in evidence in civil proceedings but a plea of guilty being an admission which may support the plaintiff’s case can be admissible”.[3]

    However, an admission by an accused in a criminal proceeding is not a conclusive proof of the commission of an offence. As such, an admission is usually subjected to further proof in civil proceedings. A defendant in a civil suit whom evidence of a criminal plea of guilty in a previous criminal proceeding was adduced against him can still be examined in a civil trial and provide his explanation for the plea.

    The Hollington principle

    The principle of inadmissibility of criminal conviction in a civil case comes from the English Court of Appeal decision in Hollington v F. Hewthorn & Company[4]. The plaintiff’s son was involved in a car accident with a car driven by the defendant’s driver. The son passed away and the plaintiff brought an action for damages against the defendant. Judgment was entered against the defendant and which he subsequently appealed against. The plaintiff sought to adduce evidence of, inter alia, a certificate certifying the defendant’s driver previous conviction for driving without due care and attention on the same day the accident occurred. Goddard LJ delivered the concurring judgment in this case, which can be summarised as follows: [1] The modern law of evidence, unlike the previous law, is concerned with relevancy and not primarily with the competence of witnesses. Generally, the relevant evidence is admissible. This evidence is not relevant, but only the view of another court that it considered the defendant guilty of careless driving as evidence and consideration not known to the civil court; [2] It is res inter alios acto – the issues in the criminal and civil proceedings are not identical. (3) It is open to the objection of irrelevance as opinion evidence, as the conviction is only the opinion of the criminal court. (4) It is hearsay. (5) If a conviction is admissible, an acquittal should equally be admitted, and it has never been suggested than an acquittal is evidence. (6) The authorities are against admissibility.[5]

    Approach taken in Malaysian cases

    On our shores, the law with regards to the admissibility of criminal records in subsequent civil proceedings is provided in Section 43 of the Evidence Act 1950 as stated earlier.

    The question of admissibility of a criminal conviction in civil cases surfaced in the case of Datuk S Nallakaruppan v Datuk Seri Anwar Ibrahim[6]. The plaintiff (Datuk Seri Anwar Ibrahim) brought a defamation suit against all three defendants on a publication of an article in a Malay daily Utusan entitled “Anwar bisexual, tak boleh jadi Ketua Pembangkang”. The defendant relied on, amongst others, a remark in the majority judgment of the Federal Court in Dato’ Seri Anwar Ibrahim v PP & Anor[7] to the effect that there was evidence to show that Datuk Seri Anwar Ibrahim was involved in homosexual activities.

    The Court of Appeal in refusing the admissibility of the opinion in the criminal proceedings, emphasised that as there were no circumstances in the case that falls under the exceptions in ss. 40, 41 & 42 of Evidence Act, the doctrine under Section 43 applies to exclude judges’ opinion in the criminal proceedings, in the civil suit.

    The rationale of the doctrine in Section 43 Evidence Act 1950, which is in pari materia with Section 43 of the Indian Evidence Act, is that every case is to be treated as a class by itself and the production of a previous judgment merely establishes that existence of a prior decision. There is no presumption that a prior judgment is the correct decision on the matter. The facts in issue of each case must be proved independently.

    Abdul Aziz Abdul Rahim JCA in delivering judgment of the Court in Datuk S. Nallakaruppan’s case observed[8]:

    “The rationale underlying s.43 can be gleaned from the statement in Hollington’s case which is as follows: “The Court which has to try the claim for damages knew nothing of the evidence that was before the criminal court. It cannot know what argument was addressed to the Court or what influence the court in arriving at its decision. Moreover, the issue in the criminal proceeding is not identical with that raised in claim for damages.”

    In referring to the Indian case of Gopalkrishnan Gupthan v Anmalu Ammal[9], the Court observed:

    “…it is the duty of the court to scrutinize the soundness or validity of opinion evidence exercising its own independent judgment. In the case of a previous judgment such scrutiny is impossible because the court trying the subsequent case cannot reopen the case and hear it on the merits as if the court is hearing an appeal or is retrying the previous case on fresh evidence. The Court in the subsequent case has to decide it on the materials before it, exercising its own independent judgment.”

    In another case of Datuk Seri Anwar Ibrahim v Khairy Jamaluddin[10], the defendant had sought at trial to reproduce findings of fact in criminal proceedings that had been earlier instituted against the plaintiff in Datuk Seri Anwar Ibrahim v PP & Anor (supra). However, as none of the exception in ss. 40, 41 and 42 applied and that the existence of prior judgment in not a fact in issue, accordingly the judgment in the criminal proceedings was held to be inadmissible by virtue of Section 43 of Evidence Act 1950.

    Criticism on Hollington and the practical difficulties

    In the course of its opinion, Lord Goddard had in the Hollington observed that the rule might not commend itself to lay understanding:

    “No doubt that it is difficult for a layman to understand why it is that if A prosecutes B, say for doing grievous bodily harm and subsequently brings an action against him for damages for assault, this doctrine should apply so that he cannot use the conviction as proof that B did assault him”.[11]

    The view of relevance of a conviction was criticised by the English Law Reform Committee:[12]

    “Rationalise it how one will, the decision…offends one’s sense of justice”. The defendant driver had been found guilty of careless driving by a court of competent jurisdiction. The onus of proof of culpability in criminal cases is higher than in civil; the degree of carelessness required to sustain a conviction for careless driving is, if anything, greater than that required to sustain a civil cause of action in negligence. Yet the fact that the defendant driver had been convicted of careless driving at the time and place of the accident was held not to amount even to prima facie evidence of his negligent driving at that time and place. It is not easy to escape the implication in the rule in Hollington v Hewthorn that, in the estimation of lawyers, a conviction by a criminal court is as likely to be wrong as right. It is not, of course, spelt out in those terms in the judgment of the Court of Appeal, although insofar as their decision was based mainly upon the ground that the opinion of the criminal court as to the defendant driver’s guilt was an irrelevant as that of a bystander who witnessed the accident, the gap between the implicit and the explicit was a narrow one.”

    The decision in Hollington has been widely criticized which has resulted in legislation and judicial reform in Australia, New Zealand and the United Kingdom in the late 1960s.[13] The English Law Reform Committee released a report in 1967 recommending that the rule should be abolished. The United Kingdom Parliament responded by passing the Civil Evidence Act 1968 (UK) which amongst other things, abrogated the rule.

    Difficulties arises not only in the United Kingdom where the decision of Hollington originates. In other jurisdiction for instance, Canada, its system recognizes that it is a waste of resources to relitigate the facts that have been determined by another court and that courts have increasingly recognized that the final decision of a competent, expert, criminal court should be an important and in some cases, a decisive factor in subsequent civil proceedings.[14]

    The effect of inadmissibility of criminal judgment, order or decree in civil proceedings would mean that a plaintiff in the civil suit is to prove all over again that the defendant has committed the offence pursuant to the operation of Section 43 of Evidence Act 1950 on grounds of relevancy.

    In 2015, Malaysian Federal Court in the Altantunya’s case had convicted Chief Inspector Azilah Hadri and Corporal Sirul Azhar Umar guilty of the murder of Altantunya and sentenced them to death penalty. However, Sirul has fled to Australia and efforts by the Malaysian authorities to extradite him were hampered by existing Australian legislation prohibiting the extradition of individuals to countries with the death penalty.[15]

    The refusal of the civil High Court to admit the criminal conviction would mean that the father and family members in Altantunya’s case would now have to secure the attendance of the convict as the main witness to be examined in the civil court. Given the difficulties in extraditing him from Australia and in the absence of any other better evidence, question as to whether the criminal conviction is the best evidence available[16] or otherwise to procure a statement from him under Section 32 of the Evidence Act 1950 would need to be considered and, whether such statement would be admissible under Section 32 would be another question, but certainly additional delay and expenses would be inevitable in circumstances like this.

    What if the death sentence has been carried out on the policemen in 2015 before trial of the civil suit? These are very real possibilities arising out from the operation of Section 43 of Evidence Act. Why should litigants in civil suit claiming for civil damages following the commission of a criminal offence be made to prove the commission of that same offence all over again? Was the criminal court that had tried the criminal matter not competent enough to deliver its decision after hearing all evidence during the criminal trial? We shall bear in mind that findings of a criminal court are, by principle, based on a much higher standard of proof of beyond reasonable doubt, compared to the standard of proof in civil trials.

    Reforms in other jurisdictions

    Canada, for instance, has recognised that it is a waste of resources to relitigate the facts that have been determined by another court. Criminal convictions are admissible in subsequent civil proceedings, the provision of which was codified in its Evidence Act and are prima facie proof of the material facts underlying the convictions which is rebuttable in civil proceedings. Therefore, a person is considered convicted of a crime if his appeal or discharge was dismissed and no further appeal is available or has been lodged by him/her.

    The principle in Hollington was also criticized that resulted in legislative reform in the Western Australia[17]. In fact, prior to the working paper, courts in Western Australia has gradually moved away from a strict adherence to the Hollington principle. Statement made in a document is now admissible[18] under Section 79C, a new provision introduced in 1967 under the Australia’s Evidence Act; Under this new provision, a statement made by a person in a document is admissible, if the maker has personal knowledge of the matter dealt with in the statement or if he made the statement in the performance of a duty to record information supposed by persons who could reasonably be supposed to have personal knowledge of the matters dealt with. If that is the case, the statement made by the deceased driver to the police in Hollington would have been admissible.

    Conclusion

    The general trend of treating criminal judgments in civil cases have moved away from the application of the Hollington principle. The practical difficulties arising from the operation of Section 43 of the Evidence Act 1950 and the reforms undertaken by other jurisdictions, all points to one direction – that it is high time we consider reviewing Section 43 of the Evidence Act and make legislative reforms accordingly. At the very least, civil litigants should be allowed to admit criminal judgment, order or decree in civil proceedings as prima facie evidence which is subjected to rebuttal.

    References:

    [1] Section 21 of Evidence Act 1950

    [2] [1989] 3 MLJ lxxvii

    [3] Admission of Guilt by Bhag Singh, The Star, 19 July 2011

    [4] [1943] 2 ALL ER 35

    [5] The Admissibility of Criminal Convictions in Subsequent Civil Proceedings, California Law Review, Vol 40 Issue 2 @ p236

    [6] [2015] 6 CLJ 425, COA

    [7] [2004] 3 CLJ 737, FC

    [8] [2015] 6 CLJ 425 at paragraph [22]

    [9] AIR (1972) KER 1963

    [10] [2018] 3 CLJ 250, HC

    [11] [1943] 2 ALL ER 35 @ page 40

    [12] English Law Reform Committee Report, Cmd 3391, paragraph [3]

    [13] Evidence of Criminal Convictions in Civil Proceedings, Law Reform Commission of Western Australia

    [14] Criminal Conviction can have big impacts on a civil case, Grant Cameron

    [15] IGP says waiting for Australia’s reply on Sirul’s extradition, Jan 16, 2015 | Malay Mail

    [16]The Collector of Govarkphur v Palakadhari Singh (1889) 12 ALL 1 FB

    [17] Evidence of Criminal Conviction in Civil Proceedings, The Law Reform Committee of Western Australia, Working Paper Project No. 20, September 1971

    [18] Section 79C of Evidence Act 1906