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QUESTION 1 (a) Written law is the most important source of law in Malaysia.

(i) what is written law The written law is the most important source of Malaysia Law. Written law are laws which have been enacted in the constitution or in legislations. The written law is divides into 4 namely Federal Constitution, State Constitution, Legislation and Subsidiary Legislation. a.) Federal Constitution The constitution was drafted by the Reid Commission in 1956 with 5 representatives from India, British, Pakistan and Australia. The Constitution came into force following the independence on August 31, 1957. It consists of 15 parts 183 articles and 13 Schedules. Article 4 (1) state that the constitution is the supreme law of federation and any law passed after Merdeka Day which is inconsistent with this constitution shall, to the maximum extent of inconsistency, be void. Article 159 and 161e provides provisions to allow the constitution to be amended with the condition of 2/3rds majority in both houses of Parliament Agreeing to the amendment. This is in contrast to normal laws which can be amended by a simple majority. b.) State Constitution State Constitution is the same as Federal Constitution, except it is set by States in Malaysia. The 8th schedule of the Federal Constitution mentions certain provisions that are to be included in the State Constitutions such as state executive members, finance, the state legislative assembly, roles of the Sultan or Yang di-Pertua Negeri, and etc. Article 71 mentions that all state constitutions must contain their provisions, otherwise the parliament can those provisions or abolish any provision in the state constitution that contradict with those provisions. Legislation Legislation are the laws that are established by the Parliaments at federal level and by the State Legislative Assemblies at the state level. In Malaysia, the legislative gets its authority form the Federal Constitution. It mentions the scope of the Parliament and the State Assembly. If the Parliament (or any State Assembly) makes a law which is not in its scope of authority or contradicts with constitution, the courts can declare that as null and void. Article 74 of Federal Constitution states that Parliament may make law with referring to matters 1

provided in the federal list and state legislative may make law with referring to matter provided in the state list. Concurrent list is in the scope of enactment by both parliament and state legislatives. State list, federal list and the concurrent list are contained in the Nine Schedule of Federal Constitution. If there are any contradictions between federal and state laws, the federal law shall prevail and state law is void to the scope of inconsistency. This was provided by Article 75 of federal Constitution. c.) Subsidiary Legislation Parliament may pass the power to legislate any subsidiary legislation during emergency, even if there are any contradictions with the Federal Constitutions involved, due to some exception in Article 150 of Federal constitution. The related case in Eng Keock Cheng Vs Public Prosecutor. In the case, Eng Keock Cheng who was convicted committed 2 offences during emergency period and was ordered to put to death. He appealed on the ground that there were neither a preliminary enquiry nor a injury nor a jury adopted by High Court which were required under criminal Procedure Act and claimed that the procedures set out in Emergency (Criminal Trial) Regulations 1964 was invalid as it contradicts with Article 8 of Federal Constitution. It was held that Parliament may pass the power to legislate any subsidiary legislation during emergency, even if there are any contradictions with the Federal Constitution involved, due to some exception in Article 150 of Federal Constitution. The appeal was dismissed.

(ii) describe in detail the other sources of law in Malaysia. Other source of law is Malaysia is unwritten law. Unwritten law are laws that are not enacted and not found in any constitution. It comprise of English law, Judicial Decisions and Customs. a.) English Law Section 3(1)(a) civil law Act 1956 states that courts in Peninsular Malaysia should apply Common Law and the Law of Equity as administered in England on 7th April 1956 states that courts in Sabah and Sarawak should apply common law and law of equity together with the statue of general application as administered in England on 1st December 1951 and 12th December 1949 accordingly. But it is not stated that the Common Law and Law of Equity in Malaysia should remain unmodified and follow the same amended according to the local needs. In addition, these two laws should also take into account of changes in these laws in England. However, Malaysia government can set their own scope for the amended or repealed 2

Common Law and Law of Equity in Malaysia. In the case Commonwealth of Australia Vs Midford (Malaysia) Sdn. Bhd. , it was held that the doctrine of sovereign or crown immunity which was developed in English Common Law after 1956 should apply in Malaysia. It was said that any developments in English Common Law after 1956 apply in Malaysia. In the case Smith Kline & French Laboratories Ltd V Salim (Malaysia) Sdn. Bhd., It washeld that the courts have the authority to put aside any Common Law or Law of Equity which cannot be applied in Malaysia. In the case Jamil Bin Harun V. Yang Kamsiah & Anor. It was decided that courts have the authority to decide whether to follow English Law (common law and law of Equity) or Federal law, considering the circumstances and the scope the written law permits to do so. In the case Karpal Singh V. Public Prosecutor, it was held that the criminal offences in Malaysia were provided by Criminal Procedure Code of Malaysia and therefore, there is no allowance for English law to apply. There are certain boundaries as to the application of Common Law and Law of Equity in Malaysia. Common law can apply is only meant to local legislation. Local law is regarded highly that the English Law. The English Law is only meant to fill in the lacuna, in which the local legislation is not present, only the relevant part which is suited to the local needs and circumstances applies. Malaysia made up of different races, each possessing their own customs different from English Law. The entire importation of English Law means that the sovereignty of local race is affected. The case law related to the boundaries of application is, Syarikat Batu Sinar Sdn. Bhd. V. UMBC Fnance Bhd. In this case, problem of double financing occurred when first purchaser (UMBC finance Bhd) endorsement of ownership claim was not included in the registration card of Vehicle. UMBC tried to repossess the vehicle. The plaintiff sued UMBC, claiming the defendants were not entitled to the vehicle. It was held that the English Law requires the endorsement of ownership claim in registration card, but the law in Peninsular Malaysia does not really require endorsement to be attached with the registration card of vehicle. The law regarding the endorsement of ownership claims in Malaysia which applies to the local circumstances has to be distinguished from the English Law.

b.) Judicial decisions Judicial decisions are based on doctrine of binding precedent. Precedents are the decisions made by judges previously in similar circumstances. There are two types of precedents. Mandatory precedent is applied when the decisions 3

of superior court are binding on lower courts or the superior courts are bound by their own decisions previously. However, the decisions of lower courts are not binding over superior courts. The lower courts must after to the mandatory precedents of superior courts, However, judge of superior court will distinguish a case before him and the cases laying down the precedents and can decide not to follow the mandatory precedent if he thinks that the mandatory precedent is not related to the case before him. From this, an original precedent is formed. Persuasive precedent is a precedent which is useful or relevant to a case. It is not mandatory for the judge to apply persuasive precedent. Persuasive precedent may be binding on lower courts if judges of superior court to apply persuasive precedent. c.) Customs Customs are another important source of unwritten law. Customs are inherited form one generation to another generation. Every race has its own customs. Chinese and Hindus customs are governed by Chinese and Hindu Customary Law. Natives in Sabah and Sarawak have their own customary law which relates to the land and family matters. Adat apply to Malays, there are two types of adat, Adat pepatih and Adat Temenggung. i.) Adat Pepatih

Adat pepatih applies in Negeri Sembilan and Naning in Malacca. The unique characteristic of Adat Pepatih is matrilineal form of organization. It concerns with matters such as land tenure, lineage, inheritance and election of members of Lembaga and YDP. Matrilineal is a system in which one belongs to mothers lineage. It generally involves the inheritance of property, names or titles from mother to daughters. ii.) Adat Temenggung Adat Temenggung applies in other states. It is based on the characteristic of patrilineal form og organization. Patrilineal is a system in which one belongs to fathers lineage; it generally involves the inheritance of property, names or titles from father to sons. After the establishment of law Reform (Marriage and Divorce) Act 1976, the family law has been given enforcement on matters of marriage, divorce and inheritance. As a result, the Chinese and Hindu Customary Laws have lost its effect as an important source of unwritten Law in Malaysia. One others important sources of Malaysian Law is Islamic Law. In Malaysia, Muslim or Islamic Law is being increasingly applied to our local laws. For instance, currently there is a move to incorporate Islamic principles 4

into land law and banking law. Islamic law applies to all persons who are Muslims and it of particulars importance in matters relating to family disputes (eg marriage and divorce) and to issues pertaining to estate matters such as the division of property and assets upon a persons death. Such law are administered by separate court system, Syariah courts. State legislature also has the Jurisdiction over the constitution, organization and procedures of Syariah Courts.

QUESTION 1 (b) Describe the various courts of law in Malaysia and their jurisdiction. 1. Federal Court (a) Role It is the highest court in Malaysia 5

Art 121 (1) Federal Constitution provides that Federal court shall have appellate, original, consultative/advisory role, but does not Shariah Law. Governed BY THE Courts of Judicature Act 1964 (b) Appointment The Federal Court judges are appointed by the YPA (Agung) acting on the advise of the PM Federal court judges are known as Chief Justices. (c) Jurisdiction (i) Original Federal court has the EXCLUSIVE jurisdiction to determine any question regarding the validity of the law made by Parliament Federal court hears disputes on any questions concerning the Federal and State Constitution the law made by Parliament Federal court hears disputes on any question concerning the Federal and State Constitution ii) Appellate Appellate means to hear and determine appeals made by the Court of Appeal - Art 121 (2) Federal constitution Criminal appeal - automatic right to hear Civil appeal - Court of Appeal must obtain leave from Federal court. Leave simple means permission. iii) Advisory

The Agong can refer to the Federal court for advise and opinion on any question relating to the constitution. Special court was established by Art 182 Federal Constitution, to hear any civil or criminal action instituted by or against the YPA or any of the State Rules.

Art 183 Federal Constitution states that no civil and criminal action can be instituted against the YPA or State Rulers without the consent of the Attorney General. 2. Court Of Appeal a) Role Art 121(1B) - to hear and determine appeals from High court b) Appellate jurisdiction It is the final court of appeal from decisions of the High court. It hears both civil and criminal appeals. c) Appointment The Court Of Appeal judges are appointed by the YPA (Agung) acting on the advise of the PM The Court Of Appeal judges are known as Lord Presidents 3. High Court a) Role The HC has both original jurisdiction and appellate jurisdiction b) Appointment Appointed by YPA on PM's advise

c)

Jurisdiction i) Original jurisdiction Means the case starts at the High court for the first time. There are 2 types:

Criminal jurisdiction - The High Courts have unlimited jurisdiction in all criminal matters. The High Courts have original jjurisdiction in criminal cases punishable by death Civil jurisdiction - The High Courts have unlimited civil jurisdiction, and generally hear actions where the claim exceeds RM250,000, other than actions involving motor vehicle accidents, landlord and tenant disputes and distress. The High Courts hear all matters relating to: the validity or dissolution of marriage,divorce and matrimonial causes, bankruptcy and matters relating to the winding-up of companies, guardianship or custody of children, grants of probate, wills and letters of administration of estates, injunctions. specific performance or rescission of contracts ii) Appellate jurisdicition Mean that High Court can hear and determine appeals against the decisions of the lower courts.

4. Sessions Court a) Role Sessions Court has the jurisdiction to hear both criminal and civil cases. At present there are 87 Sessions Court judges throughout Malaysia. b) Appointment A Sessions Court judge is appointed by the Yang di-Pertuan Agong on the recommendation of the respective Chief Judges . (section 59 of the Subordinate Courts Act 1948). Criminal cases - The Sessions Court has the jurisdiction to try all offences other than offences punishable with death. Its means that it cannot impose a death sentence. Civil Cases - The Sessions Court has unlimited jurisdiction to hear : (a) running down cases, landlord and tenant, and distress;(b) to try other suits where the amount in dispute does not exceed RM250,000.00.

The Sessions Court has unlimited jurisdiction to hear : (a) running down cases, landlord and tenant, and distress;(b) to try other suits where the amount in dispute does not exceed RM250,000.00. The Sessions Court does not have jurisdiction for the following cases: the validity or dissolution of marriage, divorce and matrimonial causes, bankruptcy and matters relating to the winding-up of companies, guardianship or custody of children, grants of probate, wills and letters of administration of estates, injunctions, specific performance or rescission of contracts

5.) Magistrates' Court a.) Role of MC Magistrates are divided into First Class and Second Class Magistrates, the former being legally qu qualified and having greater powers. Second Class Magistrates are now not normally appointed. Magistrates have the powers to hear both criminal and civil matters b.) Appointment For the Federal Territory, magistrates are appointed by Yang di-Pertuan Agong on the recommendation of the Chief Judge. In each of the States, magistrates are appointed by the State Authority on the recommendation of the respective Chief Judges (section 78 of the Subordinate Courts Act 1948). c.) Jurisdiction i) Criminal cases Trial jurisdiction In criminal matters, First Class Magistrates' power to try all offences Courts generally have

maximum term of imprisonment does not exceed 10 years or which are punishable with fine only

ii) Sentencing jurisdiction A First Class Magistrate may pass any sentence allowed by law not exceeding : 5 years imprisonment; a fine of RM10,000.00; whipping up to 12 strokes; or any sentence combining any of the sentence aforesaid.

However, in some cases e.g under the Dangerous Drugs Act 1952, Customs Act 1967 and Betting Act 1953 the Magistrate may impose a fine higher than RM10,000.00. ii) Civil cases A First Class Magistrate Court has the jurisdiction to try all actions and suits of a civil nature where the amount in dispute does not exceed RM25,000.00 The Magistrates' Courts also hear appeals from the Penghulu's Court

6.) Juvenile Court A Court for Children was established under the Child Act 2001. Section 2 of the Act defines Child as a person under the age of eighteen years, and for the purposes of criminal proceedings, means a person who has attained the age of ten.

Composition -The Court shall consist of a magistrate and shall, as the case may require, be assisted by two advisors (section 11(2) Child Act 2001). Sentence or Orders - If a child is found guilty of an offence, he shall not be imprisoned, but among others, may either be sent to an approved school or released on bail. For capital offences, the child shall be detained in prison at the pleasure of the Ruler (sections 91-97 of the Child Act 2001).

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QUESTION 2 (a) What are the elements that a plaintiff must prove in order to succeed in an action based on negligence? In order to succeed in a action based on negligence, a plaintiff must prove all the 3 elements: That there was a duty of care owned by he defendant to the plaintiff That there was a breach of this duty of care and That damages were caused to the plaintiff

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The principle of duty of care was establish in the case of Donoghue V Stevenson where it was held that a person must take care to see that his act or omission does not cause damage to other persons whom he can reasonable foresee are likely to be affected by his act or omission. Once proven that the defendant owed a duty of care to the plaintiff, the plaintiff must prove that defendant was in breach of the duty of care. Whether or not the defendant was in breach of the duty is a matter of fact to be decided by the judges. A breach of the duty of care occurs when a person fails to do what a reasonable, there has been a breach of this duty of care resulted in the person suffering damages or injuries. The plaintiff must show that as a result of the breach of duty, he has suffered damages or injuries.

QUESTION 2 (b) Write short note on the types of nuisance under the Law of Tort. The tort of nuisance is concerned with land. The tort of nuisance may be either public or private. It definite as an unreasonable interference with a persons use and enjoyment of her real property by actions on nearby property/land and is concerned with indirect harm. Examples noise, dust, odors, insects and rodents. There are numerous statues that confer wide powers on local authorities and other government bodies for the control and abatement of public nuisance, eg smoke, fumes, noise etc. In exceptional circumstances where a 12

plaintiff has suffered financial damage or loss, they may bring a civil action against the offender. In the case of UDA Holdings Bnd V Koperasi Malaysia Bhd & other appeals, the appellants UDA Holdings were held liable to the respondent for public nuisance as they had closed a public road in a busy commercial area for more than 5 years and erected stalls thereon causing damage, injury or inconvenience on the road users, the customers of the respondent generally and also the respondent specially. Private nuisance can be distinguished from a public nuisance in the following ways: It is not a crime It can be committed against an individual or a class of the population and It must be committed against land. Private nuisance involve a substantial and unreasonable interference with someones enjoyment of their interest in land. The essential element is that it must interfere with the enjoyment of the land by the person in occupation, either as owner or tenant. It is relied upon when the interference is indirect or where the invading thing is intangible, for example noise or offensive smells.Damage can be in the form of physical damage to the land, buildings or goods or interference with the enjoyment of the land through noise, smell, dust or even reasonable fear of ones health or safety. In the case of Robinson V Kilvent (1889), Kilvent raised the temperature in the premises of Robinson. Robinson was not entitled to succeed since there would not have been any damage if his trade was not so exceptional sensitive. QUESTION 3 What are the defences for :a) trespass Trespass is a direct and intentional interference with the person or property (goods or land) of another and is actionable per se (without proof of damage). Trespass may classified as follows:Trespa ss 13

To the Person

To Land

To goods

As sau

Bat ter

False imprisonm ent

Nervo us Shock

Detinu e

Conver sion

Trespass to the Person This is a direct interference with the person (or body) of the plaintiff and is actionable per se. Assault and Battery are crimes as well as torts. A person commits as assault if there is an intentional act by the defendant and the plaintiff reasonably believes they are in imminent danger of harmful or offensive contact. False imprisonment Occurs where a person intentionally and directly places a total restraint upon the liberty of another. It needs to have no physical effect upon plaintiffs person and require a total intentional restraint. Nervous Shock occurs where a person wilfully does an act that is intended to cause physical injury to another, and that does in fact cause a reasonably foreseeable physical harm to them. This means that the truth or falsity of the defendants statement or actions is not relevant. Trespass To land there must be a direct and voluntary physical interference with another persons lawful possession of land. Motive is irrelevant. This tort covers: i.) ii.) Intentional or negligent entry upon land without permission Remaining after permission to stay has expired and using a right of entry for a purpose other for which it was granted and Leaving things on land without permissions, for example , dumping rubbish

iii.)

To Goods Goods or chattels may be owned or possessed. Three classifications for torts of goods. 14

i.) ii.)

Trespass based on a wrong (interference to goods) Detinue based on possession in the defendant (used to regain possession of goods) and Conversion based on a right to possession (used in cases of deprivation and destruction of the goods).

iii.)

b) occupiers liability Occupiers liability is the liability of an occupier of premises for any damage suffered by visitors to the premises. The foundation of occupiers liability is occupational control; that is, control associated with and arising from presence in and use of or activity in the premises. For example, a bank as occupier of the banks premises, owes duty of care to all visitors on the premises (customers and members of the public) to take such care as is reasonable in all the circumstances of the case to see that the visitor will be reasonably safe in using the premises for the purpose for which he is invited or permitted to be there. To establish a case of occupiers liability, a plaintiff must establish that:i.) ii.) iii.) The defendant has occupation or control of the land or structure The hazard was in the nature of a trap and not obvious and The defendant was negligent in not putting some protection in place or giving a warning.

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