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Constitutional Law

CONSTITUTIONAL LAW – CITIZENSHIP – CITIZENSHIP DENIED: HIGH COURT REFUSES TO LEGALISE CHILD TRADING

In Ow Man Yaw & Ors v Kementerian Dalam Negeri & Anor [2024] 9 MLJ 77, the High Court dismissed an application for Malaysian citizenship brought by adoptive parents on behalf of a child obtained through an agent. The Court held that the child was not “abandoned” within the meaning of section 19B of the Federal Constitution but was instead the subject of a planned arrangement amounting to child trading. As such, the presumption of citizenship by operation of law could not be invoked. The Court further affirmed that applications under Article 15A rest solely with the Federal Government, beyond judicial intervention. The ruling underscores that the best interests of the child cannot override constitutional requirements or validate unlawful conduct.

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16 November ,2025
Contract Law

MONEYLENDERS ACT 1951- UNJUST ENRICHMENT OR ILLEGAL LOAN? COURT WEIGHS RESTITUTION AGAINST THE MONEYLENDERS ACT

In Golden Wheel Credit Sdn Bhd v Dato’ Siah Teong Din [2021] 12 MLJ, the Court considered whether a licensed moneylender, whose loan agreements were void for non-compliance with the Moneylenders Act 1951, could nevertheless pursue restitutionary remedies. The plaintiff, having advanced RM3.5 million which was channelled to the defendant’s company, sought recovery on grounds of money had and received and unjust enrichment under the Contracts Act 1950. The defendant applied to strike out the claim, arguing that it was merely an indirect attempt to enforce an illegal loan. The case illustrates the delicate balance between statutory illegality under the Moneylenders Act and the equitable principles underpinning restitution.

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16 November ,2025
Road Traffic

ROAD TRANSPORT ACT – INSURANCE – DECLARATION TO NOT INDEMNIFY THE INSURANCE

In Mohd Riza bin Mat Rani & Ors v Zurich General Takaful Malaysia Bhd [2025] 2 MLJ 224, the Court of Appeal allowed the appeal by the claimants and set aside the High Court’s decision which had favoured the insurer. The Court held that Zurich was not entitled to repudiate liability under the motor takaful policy, as the alleged non-disclosures were not proven to be material or made dishonestly. Emphasising the principles of fairness and protection inherent in takaful, the Court ruled that technical omissions should not be used to defeat the rights of accident victims and their families.

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16 November ,2025
Constitutional Law

CONSTITUTIONAL LAW – A PEACEFUL WIN: COURT STRIKES DOWN CRIMINAL PENALTY FOR NO NOTICE UNDER PAA

In Amir Hariri bin Abd Hadi v Public Prosecutor [2025] 4 MLJ 807, the Court of Appeal struck down Section 9(5) of the Peaceful Assembly Act 2012 as unconstitutional. The provision, which criminalised organisers for failing to give 10 days’ prior notice of an assembly, was held to be a disproportionate restriction on the constitutional right to peaceful assembly under Article 10(1)(b). The Court emphasised that while notice requirements under Section 9(1) remain valid for regulatory purposes, criminal penalties for non-compliance imposed an unjustifiable burden on fundamental liberties. This landmark ruling strengthens constitutional protections for public assemblies in Malaysia.

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16 November ,2025
Admiralty

MARITIME LAW – LIEN, LOSS AND LMAA: ENGLISH COMMERCIAL COURT ORDERS SALE OF DETERIORATING CARGO

In Lord Marine Co Ltd v Vimeksim Trans SA & Anor [2025] 2 Lloyd’s Rep 52, the English Commercial Court exercised its powers under s.44 Arbitration Act 1996 to order the sale of a deteriorating cargo of Ukrainian corn over which the shipowners had exercised a lien for unpaid freight. Mr Justice Bryan held that the cargo was the “subject of the proceedings” and that the court could intervene to preserve its value pending LMAA arbitration. The decision clarifies that a “freight prepaid” stamp does not estop owners where freight has not actually been paid and the bills of lading never left owners’ possession, and that possession can be maintained even when the cargo is stored in a receivers’ warehouse. This case reinforces the court’s readiness to act swiftly to prevent the loss of value in perishable cargo while safeguarding parties through fortified undertakings in damages.

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16 November ,2025
Banking

SUMMARY JUDGMENT – NO ESCAPE FOR GUARANTORS – COURT GRANTS SUMMARY JUDGMENT TO OCBC IN LOAN DEFAULT DISPUTE

In OCBC Bank (Malaysia) Bhd v Agroglobal Sdn Bhd [2025] 1 Lloyd’s Rep 558, the Singapore High Court granted summary judgment against the borrower and its guarantors, dismissing bare allegations of misrepresentation and non-disbursement. The decision reaffirmed that signed facility and guarantee documents are binding, and generic denials- absent credible evidence – will not prevent judgment. The case highlights the judiciary’s strict stance on enforcing loan agreements and signals that guarantors cannot plead ignorance of clear contractual obligations.

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16 November ,2025
Maritime & Shipping Law

MARITIME LAW – PORT CHARGES – BERTH AND BILL – COURT ANCHORS LIABILITY FOR PORT DUES ON IDLE VESSEL

In Marina Developments Ltd v Owner(S) Of “Sy Explorer” [2025] 1 Lloyd’s Rep 428, the court upheld the Port Authority’s statutory right to recover outstanding berthing charges, despite claims of abandonment by the vessel’s owners. The judgment reinforces that unless formal legal abandonment procedures are undertaken, port dues will continue to accrue. This decision affirms that even stationary vessels carry financial obligations, and port authorities can enforce recovery under maritime law protocols.

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16 November ,2025
Maritime & Shipping Law

MARITIME LAW – BILLS OF LADING – NO BILL, NO CARGO – SHIPOWNERS HELD LIABLE FOR MISDELIVERY WITHOUT ORIGINAL BL

In the pivotal case of The Doric Valour [2025] 1 Lloyd’s Rep 401, the Court of Appeal affirmed the stringent maritime principle that cargo cannot lawfully be released without the surrender of original bills of lading. Rejecting shipowners’ reliance on indemnities to justify cargo delivery without original documents, the Court emphasized the sanctity of the bill of lading as the cornerstone of secure international trade. This decision serves as a robust reminder for maritime operators that compliance with established shipping documentation procedures is mandatory to avoid serious liabilities.

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16 November ,2025
Updates

LIMITATION OF ACTION – TIME WAITS FOR NO CLAIM – COURT OF APPEAL STRIKES OUT PKA’S LATE ACTION

In the notable decision of Kuala Dimensi Sdn Bhd v Port Kelang Authority [2025] 2 MLJ 238, the Court of Appeal firmly emphasized the critical importance of timely action in contractual disputes, ruling that PKA’s claims against KDSB were statute-barred under the Limitation Act 1953. The Court decisively clarified that parties cannot invoke the postponement of limitation periods without demonstrating genuine inability to discover breaches earlier through reasonable diligence. This judgment serves as a stern reminder to litigants to vigilantly monitor their contractual rights and act promptly to avoid losing claims due to statutory time limitations.

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16 November ,2025

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Recent Legal Updates

EMPLOYMENT – RETRENCHMENT – INDUSTRIAL COURT UPHOLDS GLOBAL RESTRUCTURING: REDUNDANCY VALID DESPITE ONGOING WORK OVERSEAS

30 March ,2026

In Sin Leong v BT Systems (M) Sdn Bhd [2025] 4 ILJ 221, the Industrial Court upheld the employer’s retrenchment exercise following a global restructuring, ruling that the claimant was lawfully dismissed due to genuine redundancy. Although the claimant’s functions continued in India, the Court held that the abolition of the entire Malaysian team sufficed to establish redundancy. The company’s profitability did not negate the restructuring, and the LIFO principle did not apply since the whole department was closed. The decision reinforces that courts will respect managerial prerogative, provided the retrenchment is bona fide and not tainted by mala fide or victimisation.

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DECREE NISI – ADULTERY AND FRAUD – NOT CONCEAL REMARRIAGE – COLLUSION EVIDENCE

30 March ,2026

In Kanagasingam a/l Kandiah v Shireen a/p Chelliah Thiruchelvam & Anor [2026] 7 MLJ 494, the High Court set aside spousal maintenance and committal orders after finding that the ex-wife had fraudulently concealed her remarriage, which by law extinguished her entitlement under section 82 of the Law Reform (Marriage and Divorce) Act 1976. The Court held that consent orders obtained through non-disclosure were vitiated by fraud and ordered repayment of RM310,000, together with RM400,000 in aggravated damages and RM300,000 in exemplary damages. The decision underscores that fraud unravels all, even in family proceedings, and that courts will not hesitate to impose punitive consequences for abuse of process.

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FEDERAL COURT SAVES SECTION 233 CMA: ‘OFFENSIVE’ AND ‘ANNOY’ REMAIN CONSTITUTIONAL

30 March ,2026

In The Government of Malaysia v Heidy Quah Gaik Li [2026] MLJU 384, the Federal Court overturned the Court of Appeal’s ruling that had struck out the words “offensive” and “annoy” from section 233(1)(a) of the Communications and Multimedia Act 1998. The Court held that these terms, when read together with the requirement of intent to annoy, fall within the permissible restrictions on free speech under Article 10(2)(a) of the Federal Constitution. While the impugned words were upheld as constitutional, the respondent’s acquittal was maintained as her Facebook posts criticising immigration detention conditions did not demonstrate the required intent to annoy or harass.

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HIGH COURT ORDERS TIKTOK VIDEO TAKEN DOWN: ADVICE ON SECRET CONVERSION OF MINORS VIOLATES CONSTITUTION

30 March ,2026

In Karnan a/l Rajanthiran & Ors v Firdaus Wong Wai Hung [2025] 9 MLJ 14, the High Court granted a mandatory interim injunction ordering the immediate removal of a viral TikTok video advising how underaged non-Muslim children could be secretly converted to Islam without their parents’ knowledge. The Court held that the advice prima facie breached Article 12(4) of the Federal Constitution, which provides that a minor’s religion must be determined by their parent or guardian. Given the risk of irreparable harm to constitutional rights, the Court found the case “unusually strong and clear” and concluded that justice and the balance of convenience favoured the urgent removal of the video pending trial.

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MARITIME LAW – CLAUSES 28 AND 29 BARECON 2001 – OWNERS CAN’T PICK ANY PORT: COURT LIMITS ‘CONVENIENCE’ IN VESSEL REPOSSESSION CLAUSE

30 March ,2026

In Songa Product and Chemical Tankers III AS v Kairos Shipping II LLC [2026] 1 Lloyd’s Rep 100, the Court of Appeal held that a clause allowing owners to repossess a vessel at a location “convenient to them” does not entitle them to demand redelivery at any distant port of their choosing. The Court emphasised that repossession must occur as soon as reasonably practicable, and where the vessel is already at a safe and accessible port, owners cannot require charterers to incur the cost and risk of sailing it across the world. The decision clarifies that charterers, as gratuitous bailees post-termination, are only obliged to preserve the vessel – not to undertake burdensome repositioning for the owners’ convenience.

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MARINE INSURANCE – FRAUD DOESN’T DEFEAT COVER: COURT UPHOLDS MORTGAGEE’S CLAIM UNDER MII POLICY OF MORTGAGEE’S CLAIM

30 March ,2026

In Oceanus Capital Sarl v Lloyd’s Insurance Co SA (The “Vyssos”) [2026] 1 Lloyd’s Rep 79, the Commercial Court held that a mortgagee was entitled to recover under a Mortgagee’s Interest Insurance (MII) policy despite a forged war risks cover note and a breach of trading warranties by the shipowner. The Court found that the proximate cause of loss was the mine strike, not the forged insurance, and that the mortgagee was not “privy” to the breach, as its consent had been induced by fraud. The decision reinforces that MII policies are designed to protect lenders from owner misconduct and non-recovery under primary insurance, and that fraud will not defeat cover where the mortgagee acted reasonably.

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