Domestic inquiry is part of legal fixture under statute within employment

relations and is pre-requisite before any disciplinary action is taken against an

employee.

Charting New Horizons In Procedural Fairness And Substantive Fairness In Individual Labour Law In
Malaysia [2007] 6 MLJ I

Page 4

Under Malaysian law, s 14(1) of the Employment Act 1955 (‘EA') requires a domestic inquiry to be
held for employees covered by the EA, before an employer carries out any disciplinary action.

The Federal Court, the highest civil court in Malaysia, on appeal and in the case of Wong Yuen Hock v
Syarikat Hong Leong Assurance Sdn Bhd and another appeal (Wong), ruled that s 14(1) EA does not
require a mandatory inquiry for all private sector employees. In Wong, the appellant was dismissed
from employment without due inquiry. The Industrial Court, a tribunal created under the Industrial
Relations Act 1967 and having the jurisdiction to hear unfair dismissal claims held that the claimant
had been unfairly dismissed by his employer without just cause or excuse on the sole ground that
the employer had not given the employee a pre-dismissal inquiry.

The Federal Court applied the curing principle under administrative law and held that the failure of
the employer to hold a domestic inquiry was curable through the de novo hearing conducted by the
Industrial Court. In the words of Mohd Azmi FCJ:

In our view, the principle that an initial breach of natural justice by the employer could be
cured by the Industrial Court inquiry, should not be grounded on whether the claimant was
or was not an employee within the meaning of the Employment Act 1955. The curable
principle must apply to all cases and must not depend on the salary of a workman.

Pg 8

Returning to the Malaysian employment law context, the doctrine of legitimate expectation will be
relevant where a certain practice has continued or where promises have been made, which instill
legitimate expectations. …

Waiver

CONDONATION AS WAIVER OF THE EMPLOYER'S RIGHT TO PUNISH

MISCONDUCT [1996] 2 MLJ xvii

It is the usually the exclusive contractual right of the employer to exercise disciplinary action
against errant employees, and where necessary dismiss the said employee. However this exclusive
contractual right may be loss where it is waived by condonation by the employer. (KIV argument,
that MTM has not condoned his actions, and deliberate acts. It is our considered view that in
absence of representations / promises made to the contrary, that his involvement as prosecution
witness in the previous domestic inquiry can by any 1 measure be considered to inferred to be
condoned / excuse or forgive Mr Firdaus errant behaviour.

Page 2

The employer's right to discipline an errant employee is, if not an express term of the contract of
employment, a necessary incident thereof. As this right exists for the exclusive benefit of the
employer, he can abandon it. In granting a condonation, the employer relinquishes this contractual
right and allows the contract of employment to proceed as if that right did not exist in respect of the
condoned offence. Thus, a condonation is, at law, a ‘waiver' of a right.

Pg 1

 An employer who becomes aware of an employee's misconduct is faced with two alternative
and mutually exclusive courses of action or rights: disciplining the employee for breaching
the contract of employment, or forgiving him. He has to choose between the two
alternatives. His choice, being a matter for him to decide, is called in law an ‘election'. An
employer need not make his election immediately, but if he takes more than what is, in the
circumstances a reasonable time,212 the law will take the matter out of his hands by
deeming him to have elected not to exercise his right to discipline the employee. An election
is made when it is communicated.
 but once such a person has decided on one of the alternative rights and has communicated
his choice to the other party or so conducted himself as to lead the latter to believe that he
has made his choice, his election is complete.313 Once a person has, to the knowledge of
the other party, done an unequivocal act signifying his election, the fact of his having done
that unequivocal act is an election whether he intended it as an election or not.414 Once an
election is made, it is irrevocable515 even though, if and when the first

Pg 2

‘A waiver must be an intentional act with knowledge'6. First, ‘some distinct act ought to be done to
constitute a waiver'7; next, it must be ‘intentional', that is, such as either expressly or by
imputation of law indicates intention to treat the matter as if the condition did not exist or as if
the forfeiture or breach of condition had not occurred8; and, lastly, it must be ‘with knowledge'.9

1
Per Parke B. in Doe d. Nash v. Birch 1 M & W 402 at p 406.
2
Per Lord Blackburn in Scarf v Jardine [1881–5] All ER Rep 651 at p 658.
3
Per Lord Blackburn in Scarf v Jardine [1881–5] All ER Rep 651 at p 658; per Lord Scarman in China National
Foreign Trade Transportation Corp v Evlogia Shipping Co SA of Panama, (The Mihalios Xilas) [1979] 2 All ER
1044 at p 1058
4
Per Lord Blackburn in Scarf v Jardine [1881-5] All ER Rep 651 at p 658.
5
Per Blackburn J in Clough v London and North Western Rly Co [1861–73] All ER Rep 646 at p 651.
6
Per Lord Chelmsford LC in Earl of Darnley v London, Chatham and Dover Railway LR 2 HL 43 at p 57.
7
Per Parke B. in Doe d. Nash v. Birch 1 M & W 402 at p 406
8
Per Issacs J in Craine v The Colonial Mutual Fire Insurance Co Ltd & anor [1920] 28 CLR 305 at p 326.
Pg 2

Waiver' is a doctrine of some arbitrariness introduced by the law to prevent a man in certain
circumstances from taking up two inconsistent positions.10 It is a conclusion of law when the
necessary facts are established. It looks, however, chiefly to the conduct and position of the person
who is said to have waived, in order to see whether he has elected to get some advantage to which
he would not otherwise have been entitled, so as to deny to him a later election to the contrary. 11
His knowledge is necessary, or he cannot be said to have elected.12

Pg2-3

1. A distinct act done with knowledge:

 For a waiver of a contractual term to arise, there must be explicit conduct by one party with
respect to some right that indicates a relinquishment of that right. An employer's accepting
an employee's explanation for breaching his contractual duty to report for duty by a given
time is an unequivocal act whereby the employer knowing that he has the contractual right
to punish the employee, relinquishes it, that is, condones the offence.
 Thus, for the operation of the doctrine of waiver, ‘knowledge of the relevant facts is enough;
a party does not havevto be aware of the legal facts to which those facts may give rise'.34

Pg2

For condonation to arise, there must be a distinct action by the employer; the action must done
with the knowledge that the right to punish an employee for breaching a contractual duty has
accrued to him under the contract of employment; and, the action must evidence either expressly
or by implication the employer's intention to relinqusih the known right to punish the employee.

Pg 3

Condonation can only arise after the employer acquires full knowledge of the nature and
circumstances of an employee's offence.

Pg 4-5

1. A distinct and intentional act:

 When condonation is express, there is no problem in identifying both the employer's act and
his intention as when the employer accepts his employee's explanation … , and specifically
excuses him… . Each of these statements is an unequivocal act of condonation.
 the employer's act giving rise to condonation does not have to be as unequivocal.
 It is quite enough if the employer behaves in such a way that a resonable employee would
be led to believe that the employer was waiving his right to discipline him for his breach of a
contractual duty.43

9
This requirement is supported by many authorities, from Pennant's Case 2 Co 171 at p 173 and down to
Mattheus v Smallwood (1910) 1 Ch 777.
10
Per James LJ in Pilcher v Rawlins (1872) 7 Ch App 259 at p 268.
11
Per Lord Shaw in Pitman v Curm Ewing (1911) AC 217 at p 239.
12
The discussion of ‘waiver' and the authorities cited in this paragraph are drawn from the judgement of Issacs
J in Craine v The Colonial Mutual Fire Insurance Co Ltd & anor [1920] 28 CLR 305 at p 326.
  The employer's failure to discipline such an employee within a reasonable time of the
latter's returning to work is not an unequivocal act of condonation, but it is conduct that
would lead a reasonable employee to believe that his employer is waiving his right to
discipline him for breaching a contractual duty and is a condonation.44 Thus, the employer's
inaction can be the distinct act which can gives rise to condonation.
 The principle is that if the conduct of an employer who has knowledge of the facts entitling
him to discipline an errant employee is such as to be consistent with an intention to
overlook the misconduct, he will be taken to have condoned the misconduct.

DOCTRINE OF ELECTION [2010] 3 MLJ XXV

Pg 7

 The doctrine of estoppel has been explained by Lord Denning in his book, The Discipline of
the Law at p 223:

It is a principle of justice and of equity. It come to this: When a man, by his words or
conduct, has led another to believe that he may safely act on the faith of them —
and the other does act on them —he will not be allowed to go back on what he has
said or done when it would be unjust or inequitable to do so.

 This principle of justice and of equity is enshrined in s 115 of our Evidence Act 1950:

When one person has by his declaration, act or omission intentionally caused or
permitted another person to believe a thing to be true and to act upon such belief,
otherwise than but for that belief he would have acted, neither he nor his
representative in interest shall be allowed in any suit or proceeding between himself
and that person or his representative in interest to deny the truth of that thing.

 A failure to protest at an enquiry almost brought dire consequences in Lembaga Lebuhraya

Malaysia v Cahaya Baru Development Bhd [2009] 5 MLJ 14, Abdul Malik Ishak JCA in his
dissenting judgment explained the operation of the estoppel of election:

Since estoppel is a rule of evidence, the evidence here showed that the appellant
defendant was present at the enquiry but the respondent plaintiff saw it fit not to
object and that would definitely trigger the issue of estoppel against the respondent
plaintiff. We are concerned here with estoppel by election where A, as an analogy,
in his dealing with B, being at liberty to adopt either of two mutually exclusive steps
(Kammins Ballrooms Co Ltd v Zenith Investments (Torquay) Ltd [1970] 2 All ER 871
(HL), per Viscount Dilhorne at p 886 and Lord Diplock, at p 894), proceedings,
courses of action, or attitudes, in relation to B, elects to take or adopt one of them,
and to reject the other, or to ‘waive' his right in respect thereof, and A's declaration
of such election or ‘waiver' by words, conduct, or inaction, influences B to alter his
position to his detriment, A is estopped, as against B, from thereafter resorting to
 the course of action which he has thus intimated his intention of relinquishing,
dispensing with, or ‘waiving'.

 The ultimate effect of the operation of the doctrine of election is a judicial prohibition that
militates against litigation as evident from the foregoing discussion. To that extent, the pith
and core of the common law and equitable doctrines of election is the same as the
evidential principle of estoppel:

Estoppel

ISTEM LINGKARAN LEBUHRAYA KAJANG SDN BHD v. ORCHARD CIRCLE SDN

BHD & ORS AND OTHER APPEALS [2018] 1 CLJ 239

In Spencer, Bower and Turner "The Law relating to Estoppel by Representation " 3rd Edn.
(1977), para. 310 summarises the doctrine of election as applied to the law of estoppel in
these terms:

Where A, dealing with B, is confronted with two alternative and mutually exclusive
courses of action in relation to such dealing, between which he may make his
election, and A so conducts himself as reasonably to induce B to believe that he is
intending definitely to adopt the one course, and definitely to reject or relinquish the
other, and B in such belief alters his position to his detriment, A is precluded, as
against B, from afterwards resorting to the course which he has thus deliberately
declared his intention of rejecting. It is of the essence of election that the party
electing shall be 'confronted' with two mutually exclusive courses of action between
which he must, in fairness to the other party, make his choice'.

TAKASHIMAYA CONSTRUCTION & DEVELOPMENT SDN BHD & ANOR v. MY

INFLUX SDN BHD AND OTHER APPEALS [2019] 1 LNS 689

[100] The Federal Court in Boustead Trading [1985] Sdn Bhd v. Arab Malaysian Merchant
Bank Berhad [1995] 4 CLJ 283; [1995] 3 MLJ 331 held that estoppel:

(i) is a flexible principle of wide utility which must be applied in a broad and liberal
fashion;

(ii) may be applied to enlarge or reduce the rights or obligations of a party under a
contract;

(iii) operates where there is a representation of fact and law and encouragement by
one party to another to believe in the existence and non-existence of a fact;

(iv) can also be applied where the encouragement being offered by the party sought
to be estopped, comes in the form of silence.

It was further held by the Federal Court that inducement is never an integral part of the
doctrine of estoppel and that the party asserting the estoppel need not show detriment:
 "All that a representee (which term includes one who has received encouragement
in the sense we have discussed earlier) need do is to place sufficient material before
a court from which an inference may fairly be drawn that he was influenced by his
opponent's actings. Further, it is not necessary that the conduct relied upon was
the sole factor which influenced the representee. It is sufficient that "his conduct
was so influenced by the encouragement or representation....that it would be
unconscionable for the representor thereafter to enforce his strict legal rights."

EMAS KIARA SDN BHD v. MICHAEL JOSEPH MONTEIRO & ORS; FARCOLL ESTATE
SDN BHD & ORS (INTERVENERS) [2017] 3 CLJ 605 (CA)

The Law On Estoppel

[76] It appeared to me that the species of estoppel that the plaintiff sought to invoke
was estoppel by convention, described in Snell's Equity[25] in the following terms:

A useful statement of the doctrine was made by Lord Steyn, and adapted by the other
members of the panel of the House of Lords, in Republic of India v. India Steamship Co
Ltd [1998] AC 878:

[A]n estoppel by convention may arise where parties to a transaction act on an

assumed state of facts or law, the assumption being either shared by them both or
made by one and acquiesced in by the other. The effect of an estoppel by
convention is to preclude a party from denying the assumed facts or law if it would
be unjust to allow him to go back on the assumption. It is not enough that each of
the two parties act on an assumption not communicated to the other. But... a
concluded agreement is not a requirement.[26]

ESTOPPEL BY CONVENTION: A Cause of Action? (Pt I) [1997] 1 MLJ i

Pg 14

In Amalgamated Investment, Robert Goff J said that generally, voluntary promise will not give rise to
an estoppel:1367 (Amalgamated Investment was applied by the Malaysian Federal Court recently in
Boustead Trading (1985) Sdn Bhd v Arab-ndash;Malaysian Merchant Bank Bhd.80)

... even if acted on by the promisee to his detriment, for the promisee may reasonably be
expected to appreciate that, to render it binding, it must be incorporated in a binding

13
p 107. Cf DE Allan, ‘An Equity to Perfect a Gift’ [1963] 79 LQR 238.
 contract or contractual variation, and that he cannot therefore safely rely upon it as a legally
binding promise without first taking the necessary contractual steps. (Emphasis added.)

ESTOPPEL BY CONVENTION: A CAUSE OF ACTION? (PT II) [1997] 1 MLJ xxv

Page 13

 In Amalgamated Investment, Robert Goff J stressed that Combe v Combe was not an
authority for the proposition that an action in contract could not be created by an estoppel
and suggested that there were at least three group of cases where estoppel may be
enforced despite infringement of the principle that no cause of action in contract could be
created by an estoppel.126
 The learned judge said that the first group concerns cases which are referred to as
proprietary estoppel —referred to by the learned judge as an ‘amalgam of doubtful
utility’.127
 The second group consists of cases of the doctrine in the traditionally orthodox situation —
High Trees House.
 In his words, the third group concerns:128

... cases where one party has represented to the other that a transaction between
them has an effect which in law it does not have. In such a case, it may, in the
circumstances, be unconscionable for the representor to go back on his
representation, despite the fact that the effect is to reduce his rights or to enlarge
his obligations and so give effect to what is in fact a gratuitous promise; for the
effect of the representation may be to cause or contribute to the representee’s
error or continued error as to his true legal rights, or to deprive him of an
opportunity to renegotiate the transaction to render it legally enforceable in terms
of the representation.

Page 17

Effect of estoppel

 In Amalgamated Investment,165 Robert Goff J drew a distinction between a pre-ndash;

existing legal relation as a pre-ndash; requisite of an estoppel and the effect of an estoppel.
His Lordship said:166
 Where, as in cases of promissory estoppel, the estoppel is founded upon a
representation by a party that he will not enforce his legal rights, it is of course a
prerequisite of the estoppel that there should be an existing legal relationship between
the parties. But where, for example, the estoppel relates to the legal effect of a
transaction between the parties, it does not necessarily follow that the underlying
transaction should constitute a binding legal relationship. In such a case the
representation may well, as I have already indicated, give rise to an estoppel although
the effect is to enlarge the obligations of the representor; and I can see no reason in
principle why this should not be so, even if the underlying transaction would, but for the
estoppel, be devoid of legal effect. Certainly the doctrine of consideration cannot of
itself provide any insurmountable obstacle to this conclusion; for, whether the
 representation consists (as in the case of a promissory estoppel) of a forbearance, or
consists of a representation as to the legal effect of a transaction, it will in any event
constitute an inroad upon that doctrine. An example of an estoppel giving rise to a
binding obligation when none before existed is to be found in Spiro v Lintern [1973] 1
WLR 1002, in which it was held that the purchaser could enforce a contract against the
husband who would not, apart from the estoppel, have been under any obligation to
him.
 A little earlier at p 105, the learned judge said:
 ... It is in my judgment not of itself a bar to an estoppel that its effect may be to enable a
party to enforce a cause of action which, without the estoppel would not exist. It is
sometimes said that an estoppel cannot create a cause of action, or that an estoppel can
only act as a shield, not as a sword. In a sense this is true — in the sense that estoppel is
not, as a contract is, a source of legal obligation. But, as Lord Denning MR pointed out in
Crabb v Arun District Council [1976] Ch 179 at p 187, an estoppel may have the effect
that a party can enforce a cause of action which, without the estoppel, he would not be
able to do. (Emphasis added.)

PROMISSORY ESTOPPEL: DOES MALAYSIA NEED THIS DOCTRINE? [2006] 6 MLJ lxviii

Pg 3 - 5

Waiver

Pg5-6

Promissory estoppel

 Promissory estoppel is based on a general principle of equity under which a party, who has
represented that he will not insist upon his strict rights under the contract, will not be
allowed to resile from that position, except in certain cases by giving reasonable notice of his
intention to revert to the original position.
 Malaysian courts have not lagged behind in their endeavour to further develop the doctrine
of promissory estoppel. The Federal Court in the case of Boustead Trading (1985) Sdn Bhd v
Arab -Malaysia Merchant Bank Ltd40 found no justification in denying this equity to the
plaintiff in defending a cause of action which would otherwise have been lost to him by
some plea of the defendant. The court stated the principle in broad terms when it said:
 The doctrine of promissory estoppel is a flexible principle by which justice is done
according to the circumstances of a case. It is a doctrine of wide utility and has been
resorted to in varying fact situations to achieve justice. The Federal Court held that ‘the
global question, which a court must ask itself, is this: is it just and equitable that the
particular litigant (against whom the estoppel is raised) should succeed, given the
totality of the facts and circumstances of the case? If the answer to the question is in the
affirmative, estoppel does not bite: if the answer is in the negative, then it bites’. The
 doctrine of promissory estoppel has been developed with a rapid speed such that it can
now be used in almost any imaginable situation41.

PROMISSORY ESTOPPEL: THE UNCHAINED DOCTRINE [1999] 2 MLJ lxviii

Pg 5

Pg 6

 The situation was favourable for the traditionalists and the courts invariably insisted that a
pre-existing contractual relationship is a pre-requisite for the application of promissory
estoppel.28 In the process, it was either missed or ignored that promissory estoppel stems
from equity and that equity is pregnant with flexibility and fully capable of operating in
diverse situations, at times even sidelining the technicalities of the strict law. Sometimes a
distinction is sought to be drawn between a ‘contractual relationship’ and a ‘legal
relationship’. The initial condition of a contractual relationship is too narrow to be insisted
upon. The requirement would be satisfied by the presence of any ‘legal relationship’, which
term is wide and comprehensive enough to include relationships other than contractual,
such as the cases of easement, intestate devolution, finder of goods, etc. In the Malaysian
case of Cheng Hang Guan & Ors v Perumahan Farlim (Penang) Sdn Bhd & Ors30 the plaintiff
family had been staying on the defendant’s land for more than 100 years. He was given
assurance by and on behalf of the landlord that his occupancy would not be disturbed as
long as he desired and continued to pay the rent. The plaintiff had made huge investments
by cultivating the land and constructing two houses thereon. The court dismissed the
landlord’s contention that promissory estoppel should be confined to cases where the
parties are contractually bound to one another. Edgar Joseph Jr SCJ referred to Durham
Fancy Goods Ltd v Michael Jackson (Fancy Goods) Ltd31 where it was stated that:
 … although in Hughes v Metropolitan Rly Co, the Court of Appeal assumed a pre-existing
contractual relationship between the parties, this [did] not seem to be essential provided
that there (was) a pre-existing legal relationship which could give rise to liabilities and
penalties.32

Assuming on the basis of the above authorities that any legal relationship, not necessarily a
contractual relationship, will satisfy the test to attract promissory estoppel, the question still
remains whether the doctrine can be applied in a case where none of these relationships exists
between the parties. In view of the vastness of equity and the flexible nature of the doctrine of
promissory estoppel it is felt that, as a principle flowing from equity, the doctrine should have
application in cases even in the absence of a pre-existing legal/contractual relationship between
the parties. This question has been debated in some recent cases where promissory estoppel
was sought to be invoked in respect of pre-contractual negotiations. No doubt, the application
of promissory estoppel to such cases has evoked vehement opposition, but, be that as it may,
equity has triumphed once again and compelled the courts to take an exceptionally broad view.
Although, it was the celebrated Australian case of Walton Stores (Interstate) Pty Ltd v Maher &
Anor33 which is said to have given the lead, there are earlier cases which are found to have
prepared the ground for a change in approach.
DOUBLE ADVANTAGE SDN BHD v. PADUAN HEBAT SDN BHD & ANOR [2017] 1
LNS 1391 (CA)

[33] We also agree that, in this context, the learned judge had failed to consider or address
the issue of estoppel. Estoppel is basically a legal principle which bars a person, as the
name suggests, from asserting or denying a fact or a right. Such a prohibition arises from a
person's conduct, silence, acquiescence or concealment of material facts. There are
however many types of estoppel which can arise due to the myriad of circumstances. It is
first and foremost an equitable doctrine. Its underlying purpose is to prevent injustice.

[34] Useful reference on the law relating to estoppel may be had to the Federal Court
decision of Boustead Trading (1985) Sdn Bhd v. Arab-Malaysian Merchant Bank Bhd [1995] 4
CLJ 283; [1995] 3 MLJ 331 where in speaking for the Court, Gopal Sri Ram JCA (as he then
was) observed (at p 344-345):

"The time has come for this court to recognize that the doctrine of estoppel is a
flexible principle by which justice is done according to the circumstances of the case.
It is a doctrine of wide utility and has been resorted to in varying fact patterns to
achieve justice. Indeed, the circumstances in which the doctrine may operate are
endless."

[35] Considering the circumstances as set out earlier, we think that at least estoppel by
acquiescence or estoppel by silence or inaction applies to the instant case. The test as to
estoppel by acquiescence can be found in Moorgate Mercantile Co Ltd v. Twitchings [1976]
2 All ER 641 through the dissenting speech of Lord Wilberforce as follows (at p 645-646):

"In order that silence or inaction may acquire a positive content it is usually said that
there must be a duty to speak or to act in a particular way, owed to the person
prejudiced... What I think we are looking for here is an answer to the question
whether, having regard to the situation in which the relevant transaction occurred,
as known to both parties, a reasonable man, in the position of the "acquirer" of
the property, would expect the "owner" acting honestly and responsibly, if he
claimed any title in the property, to take steps to make the claim known..." (as
cited with approval in Republic of India & another v. India Steamship Co Ltd (The
Indian Endurance) (No. 2) [1996] 3 All ER 641).

[36] In the case of The Stolt Loyalty [1993] 2 Lloyd's Rep 281, Clarke J (as he then was) had
occasion to consider the authorities dealing with estoppel by acquiescence or estoppel by
silence or inaction as follows (at pp 289-290):

"The question is whether on those facts the demise charterers are estopped from
relying upon the one year time limit. I was referred to a number of cases in which
estoppel by acquiescence or estoppel by silence or inaction has been discussed. An
estoppel of this type is an equitable estoppel. In recent years there has been a
tendency to reject "any rigid classification of equitable estoppel into exclusive and
defined categories"; per Mr. Justice Robert Goff in Amalgamated Investment &
Property Co. Ltd, v. Texas Commerce International Bank Ltd., [1982] 1 Q.B. 84 at pp.
103 to 104.

Nevertheless the following cases appear to me to establish that before a person can
be held to be estopped as a result of mere inaction he must be shown to be under
a legal duty to take action of some kind: Spiro v. Lintern, [1973] 1 W.L.R. 1002; The
Henrik Sif, [1982] 1 Lloyd's Rep. 456.

The question then arises in what circumstances a person may be held to be under
such a legal duty. In The Henrik Sif Mr. Justice Webster, after citing a dictum of Lord
Wilberforce in Moorgate Mercantile Co. Ltd. v. Twitchings, [1977] A.C. 890 at p. 903,
answered that question in this way (at p. 465):

Nonetheless the dictum which I have cited seems to me to be most

persuasive authority for the proposition that the duty necessary to found an
estoppel by silence or acquiescence arises where "a reasonable man would
expect' the person against whom the estoppel is raised "acting honestly
and responsibly" to bring the true facts to the attention of the other party
known by him to be under a mistake as to their respective rights and
obligations.

Mr. Justice Webster also cited with approval the following passage from the
judgment of Mr. Justice Oliver in Taylor Fashions Ltd. v. Liverpool Victoria Trustee Co.
Ltd., [1982] 1 Q.B. 133 at p. 147:

... in a case of mere passivity, it is readily intelligible that there must be

shown a duty to speak, protest or interfere which cannot normally arise in
the absence of knowledge or at least a suspicion of the true position.

The underlying basis for the existence of this estoppel, as in the case of all equitable
estoppel, is that it must be unconscionable to allow the party estopped to deny
that which he has allowed the other party to assume to be true. In the case just
cited Mr. Justice Oliver put it thus (at pp. 151 to 152):

Furthermore the more recent cases indicate, in my judgment, that the

application of the Ramsden v. Dyson, L.R. 1 H.L. 129 principle - whether you
call it proprietary estoppel, estoppel by acquiescence or estoppel by
encouragement is really immaterial - requires a very much broader approach
which is directed rather at ascertaining whether, in particular individual
circumstances, it would be unconscionable for a party to be permitted to
deny that which, knowingly, or unknowingly, he has allowed or encouraged
another to assume to his detriment than to enquiring whether the
circumstances can be fitted within the confines of some preconceived
formula serving as a universal yardstick for every form of unconscionable
behavior.
 That statement of principle was expressly approved by the Court of Appeal
in Habib Bank Ltd. v. Habib Bank A.G. Zurich, [1981] 1 W.L.R. 1265.

There is a further aspect of this type of estoppel which is of importance. It was put in
this way by Lord Justice Kerr giving the judgment of the Court of Appeal in The
August Leonhardt, [1985] 1 Lloyd's Rep. 28 at p. 35:

The applicability of the doctrine of estoppel in any given case can also be
tested in another way. There cannot be any estoppel unless the alleged
representor has said or done something, or failed to do something, with the
result that - across the line between the parties - his action or inaction has
produced some belief or expectation in the mind of the alleged
representee, so that, depending on the circumstances, it would thereafter
no longer be right to allow the alleged representor to resile by challenging
the belief or expectation which he has engendered. To that extant at least,
therefore the alleged representor must be open to criticism."

Amar Singh Sundar Singh & Ors v. Jivanjit Kaur Sohan Singh [2010] 7 CLJ 285

[19]The Commonwealth of Australia v. Verwayen [1990] 170 CLR 394 is not a case on occupation
of a land. It is on negligence but the statements contained therein are instructive. Mason CJ
opined:

The principle of estoppel by conduct or representation applied in equity, as at common law,

though in equity the principle was known as equitable estoppel: Jorden v. Money; Thompson
v. Palmer; Waltons Stores. And in equity it was also well settled that the representation (or
assumption) must be of an existing fact, not of future fact or mere intention. That is
what Jorden v. Money decided, despite the fact, as Bowen L.J. pointed out in Edgingtion v.
Fitzmaurice, that "the state of a man's mind is as much a fact as the state of his digestion".
This limitation upon the principle of estoppel was seemingly founded upon the notion that
to hold a person to an assumption which his conduct has caused another to adopt or accept
was tantamount to enforcing a voluntary promise in the absence of consideration The need
to avoid this consequence was an important aspect of the majority reasoning in Jorden v.
Money.

Privilege against Self-incrimination

ROTTA RESEARCH LABORATORIUM SPA & ANOR v. HO TACK SIEN & ORS; CHAI
YUET YING (THIRD PARTY) (NO 2) [2011] 1 LNS 597 (HC)
The Section does not override the operation of Section 132 EA 1950 which provides that a witness is
not excused from answering a question on the ground that an answer will criminate, (see The
Attorney General of Hong Kong v. Zawiyah Wan Chik & 3 Ors & Another Appeal [1995] 3 CLJ 35). In
effect, Section 132 EA 1950 does away with the privilege against self-incrimination. The issue of
confidentiality is not a bar to the admissibility of any document, when relevant, in Court.

8.17.10. PW9 expressed her fears that if she were to disclose Exhibit P80 to the Court, she
would be liable (personally) for the breach of confidentiality. It would appear that PW9's
fears are misplaced as where a disclosure is ordered by the Court there can be no breach of
trust or confidentiality on her part. In the case of Marcel v. Commissioner of Police [1992] Ch
225 Nolan LJ at page 261 held that "there is no duty of confidence where the disclosure is
made in obedience to the law which required it to be made."

MERIDIAN ASSET MANAGEMENT SDN BHD v. ONG KHENG HOE & ORS (FC)
[2010] 7 CLJ 1

[25] Counsel then argued that the predicament which causes this appeal arises from the
development of case law on s. 132 of the Evidence Act 1950, namely, that s. 132, subject to
certain conditions, removes a witness's privilege against self-incrimination and compels a
witness to answer all questions asked during a trial. However, s. 2 of the Evidence Act
1950 makes it clear that the provisions therein are not applicable to affidavits. As such, the
said common law privilege would still apparently be available to the defendants herein
when being ordered to disclose the whereabouts of the monies siphoned by the first
defendant and subsequently disbursed to the second to the fourth defendants.

[26] Counsel pointed out that this position is complicated by two conflicting High Court
decisions in Malaysia. He then referred to Television Broadcasts Ltd & Ors v. Mandarin Video
Holdings Sdn Bhd[1983] 1 LNS 32 which held that the definition of "witness" meant any
person who could give or furnish evidence and not any person who testified in the witness
box. Consequently he referred to PMK Rajah v. Worldwide Commodities Sdn Bhd &
Ors[1984] 1 LNS 108 where the court adopted a more restrictive approach and held that
"witness" simply means a person who testified on oath or affirmation in a court of law or in
a judicial tribunal and who would be subject to examination-in-chief, cross-examination and
re-examination. Counsel also referred to Riedel-de Haen AG v. Liew Keng Pang [1989] 1 LNS
30 where the Singapore High Court followed the House of Lords in Rank Film Distributors Ltd
v. Video Information Centre [1982] AC 380 and adopted the more restrictive approach whilst
the Court of Appeal in The Attorney General of Hong Kong v. Zauyah Wan Chik & Ors &
Another Appeal [1995] 3 CLJ 35did not discuss these two competing doctrines and that the
judgment of the court seems to suggest that s. 132 of the Evidence Act 1950 only applies to
recording evidence in proceedings. Counsel then pointed out that there is yet any decision
from this court as to whether the definition of "witness" in s. 132 of the Evidence Act
1950 should adopt the liberal interpretation or the narrow interpretation.

[27] I am of the view that there are two reasons why the judgment of the Court of Appeal in
the instant appeal is fatally flawed. In the first place, the privilege of self-incrimination does
not apply in this case as the persons who seek to invoke it, viz., the defendants are not
witnesses giving evidence at a trial. They are simply defendants in an action against whom a
proprietary claim has been made. The contrary view expressed by Chan J (as he then was)
in Television Broadcasts Ltd is not correct. In my judgment, the correct position is that
stated by Zakaria Yatim J (later FCJ) in PMK Rajah where he held that that "witness" in s. 132
of the Evidence Act 1950 refers to a person who testifies on oath or affirmation in a court of
law or before a judicial tribunal and who is liable to be examined, cross examined and re-
examined. I would add that in the Singapore case of Riedel-de Haen AG, Chan Sek Keong J
(now CJ) appears to have preferred the view expressed by Zakaria Yatim J.