KUALA LUMPUR – Although courtrooms have had to adjust to the new normal due to the Covid-19 pandemic, the changes did not stop proceedings in landmark cases last year.
Here are some worth reading about.
Tenaga and the tampered meter
The Electricity Supply Act makes meter-tampering an offence, and Tenaga Nasional Bhd (TNB) can take action against offenders.
But what if an accused argues that they are not responsible for such actions?
TNB took L&A Packaging to court over meter-tampering that led to the company paying less than what it should.
However, the firm said the onus is on TNB to prove the matter.
It was argued that the meter was locked up and accessible only by TNB.
The high court, in its judgment, said under the Electricity Supply Act, TNB does not have to prove that the customer is the one who tampered with the meter.
It also ruled that proving that the meter has not been reading consumption rates correctly due to interference by the customer is enough.
You are what you publish
If a person posts a comment deemed illegal on a website, the assumption will be that the site will not be held responsible.
Right? Wrong. The operators of news portal Malaysiakini found this out the hard way.
Netizens uploaded comments on the portal that were critical of the judiciary, and under the law, actions such as challenging public confidence in the courts are considered illegal.
The attorney-general then initiated contempt proceedings against Malaysiakini.
During proceedings, the prosecutor first presents the case to the judge, who then determines whether there is a case to answer – in other words, if the matter is worth pursuing.
Only then will the judge hear the full merits of the case.
Malaysiakini tried to set aside the prima facie decision, and failed.
The Federal Court said the readers’ comments were contemptuous, and cited Section 114A of the Evidence Act to presume that the portal’s operators were responsible for comments posted on the site.
Foreign, local workers equal under the law
It is no secret that many foreign workers in Malaysia are discriminated against and badly treated. A case in point would be the horrendous living conditions they are subjected to.
In the eyes of the law, however, these workers are accorded the same protections as Malaysian employees.
Ahmad Zahri is a Singaporean who had worked for AIMS Data Centre 2 in Malaysia as a consultant on an annual fixed-term contract since 2009.
In 2012, he received a contract renewal with sister company AIMS Cyberjaya.
A year later, his contract was renewed, but with no terms indicating performance bonuses.
Negotiations between Ahmad and the company went back and forth, but his continuous refusal to give in resulted in his termination.
He sued the firm in the industrial court, and the case was appealed all the way to the Federal Court.
One of the questions to be answered is, since Ahmad’s contract was renewal-based, could he be considered a permanent employee, despite being a foreigner?
The apex court decided that the Industrial Relations Act does not discriminate between citizens and non-citizens.
It acknowledged that treating foreign workers differently goes against the 1975 International Labour Organisation Migrant Workers (Supplementary Provisions) Convention 143.
Late delivery by property developers
Although there have been many developments in land laws, one is of particular interest to house owners.
If a developer is late to deliver possession of a house, it is required by law to compensate the buyer, with the amount to be determined from when the contract began.
Voon Kuan Chien bought an apartment from a Sri Damansara developer, which collected RM10,000 as a booking fee. The contract stated the unit price as RM731,800.
After the agreement was signed, a discount of RM63,000 was given to Voon, who then sued the developer for the unit’s later delivery.
The Court of Appeal decided that the contract began when the booking fee was paid, not when the agreement was signed.
This is because it would be a challenge to protect house buyers if developers could collect booking fees without a contract.
Airbnb lease
Can the condominium management prohibit owners from leasing their units to Airbnb guests?
The management of Verve Suites, a service apartment categorised as a commercial building, decided, through a majority agreement with unit owners, to not allow Airbnb rentals on the premises.
When the matter was brought up at the Court of Appeal, the plaintiff argued that the management could not interfere by prohibiting the use of units for short-term rentals.
The Federal Court decided that the condo management can have rules going against the building’s purposes.
It said the Airbnb prohibition was made following the Strata Management Act, which aims to protect the apartment community.
The plaintiff also argued that Airbnb agreements are tenancies, and under the law, the condo management cannot bar such activities.
However, the top court held that Airbnb rentals are not tenancies.
Unlike tenancies, Airbnb guests do not have exclusive possession of the unit, and the owner can evict those who overstay.
In short, an Airbnb accomodation is no different from a hotel.
Taking away Sosma’s bite
When the Barisan Nasional government enacted the Security Offences (Special Measures) Act 2012, human rights activists said at the time that the nation had taken a step back.
However, a judgment made last year has inched Malaysia towards deeper respect for an individual’s liberty.
Under Section 13 of Sosma, the courts are prohibited from considering bail for an accused.
Koh Chin Wah was remanded for almost four years under the act for human trafficking.
Under normal criminal procedures, an accused can be remanded only for a maximum of two weeks before being charged.
Koh’s lawyers argued that Section 13 is unconstitutional as it removes the judiciary’s right to consider bail under Article 121.
The court, which agreed, used Section 388 of the Criminal Procedure Code to grant Koh bail.
What to look out for this year
Six Chinese nationals have challenged the Prevention of Crime Act, arguing that the legislation applies only to Malaysians. On January 22, they will know their fate.
In a separate case, the Federal Court on December 14 last year heard arguments that only Parliament can criminalise sodomy, and states cannot do so under shariah enactments.
It is uncertain when the top court’s judgment will come, but it is likely this year.
Another court decision to look out for concerns a woman whose Muslim parents were unmarried when she was born.
She said she cannot be considered a Muslim as she was an illegitimate child.
The Federal Court has heard all arguments on the matter, with only its ruling pending. – The Vibes, January 4, 2021
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