![Judicial Misquotation of Pan Malaysia Equities Sdn Bhd v Angeline Tan Eei We [2010] MLJU 1528](https://joshuawu.my/wp-content/uploads/2021/05/Joshua-Wu-logo-1000-x-1000-1000x675.png)
by Joshua Wu Kai-Ming | Aug 6, 2025 | Law
In Lesley Chan Siew Yoke v RHB Bank Berhad [2020] MLJU 242 (“Lesley Chan”), the learned High Court judge (“LHCJ”) therein referred inter alia to an earlier decision of Pan Malaysia Equities Sdn Bhd v Angeline Tan Eei We [2010] MLJU 1528 (“Pan Malaysia”):
“The Court of Appeal in Pan Malaysia Equities Sdn Bhd v Angeline Tan Eei We [2010] MLJU 1528 held that Section 16 of the Act is in pari materia with the corresponding provision under the Indian Contract Act. Hamid Sultan JCA went on to analyse the application of the doctrine in the context of the Contracts Act 1950.”[1] (Bold and underline mine)
The LHCJ in Lesley Chan appeared to be of the impression that Pan Malaysia was:
(a) A decision of the Court of Appeal; and
(b) A decision by Hamid Sultan JCA.
[collectively referred to as the “Impugned Impressions 1”]
In Loh Mun Wah v Loh Yoon Sang & Ors [2023] MLJU 3435 (“Loh Mun Wah”), the LHCJ therein also misquoted Pan Malaysia as being a decision of the Court of Appeal:
“… The Court of Appeal in Pan Malaysia Equities Sdn Bhd v. Angeline Tan Eei We [2011] 1 CLJ 923; ; [2010] MLJU 1528 held that there was a need to place caveats on applying English cases.”[2] (Bold and underline mine)
The LHCJ in Loh Mun Wah, similar to the LHCJ in Lesley Chan, appeared to be of the impression that Pan Malaysia was a decision of the Court of Appeal (“Impugned Impression 2”).
Regrettably, the Impugned Impressions 1 and Impugned Impression 2 are factually incorrect.
Pan Malaysia was a decision of the High Court by Justice Hamid Sultan Abu Backer when His Lordship was a High Court judge (and not when His Lordship was a Court of Appeal judge):
The Impugned Impressions led the LHCJ in Lesley Chan to be of the view that he was bound by Pan Malaysia:
“This Court is bound by the position taken in Pan Malaysia Equities and agrees with Singlefine.”[3] (Bold and underline mine)
It is unclear whether the LHCJ in Lesley Chan would have agreed with (and adopted) the position taken in Pan Malaysia if he was aware that Pan Malaysia was a decision of the High Court.
After all, Pan Malaysia “being a decision of a court of coordinate jurisdiction … whilst deserving the respect and deference that is due to it … is not binding on”[4] the High Court in Lesley Chan.
As for Loh Mun Wah, the misquotation of Pan Malaysia likely would not have had a material impact on the outcome of the matter as the LHCJ therein also relied on the Court of Appeal’s decision in Tengku Abdullah Ibni Sultan Abu Bakar & Ors V. Mohd Latiff Shah Mohd & Ors & Other Appeals [1997] 2 CLJ 607[5] to establish a similar proposition.
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by Joshua Wu Kai-Ming | Jul 2, 2025 | Law
1. It is a feature/core tenet of the Federal Constitution
In Haris Fathillah bin Mohamed Ibrahim & Ors v Tan Sri Dato’ Sri Hj Azam bin Baki & Ors [2023] 2 MLJ 296 (“Haris Fathillah”), the Federal Court explicitly stated the following:
“… There is no dispute that judicial independence is a core tenet of the FC.”[1] (Emphasis mine)
The Federal Court in Semenyih Jaya Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat and another case [2017] 3 MLJ 561 (“Semenyih Jaya”) shared a similar view:
“Thus it is clear to us that the 1988 Amendment had the effect of undermining the judicial power of the Judiciary and impinges on the following features of the Federal Constitution:
(i) the doctrine of separation of powers; and
(ii) the independence of the Judiciary.”[2] (Emphasis mine)
2. It is a sacrosanct concept
The Federal Court in Haris Fathillah expressly held that:
“… Judicial independence is a sacrosanct concept. Judges and the entire judicial process must be free to perform their functions freely and independently to arrive at a just and fair decision.”[3] (Emphasis mine)
Zainun Ali FCJ expressed a similar sentiment in Semenyih Jaya:
“The important concepts of judicial power, judicial independence and the separation of powers are as critical as they are sacrosanct in our constitutional framework.”[4] (Emphasis mine)
3. It exists, conceptually, by implication
Tengku Maimun CJ made such an observation in Haris Fathillah:
“… It is here that one can appreciate why context is important because the very concept of judicial power, judicial independence and even the mechanism of constitutional judicial review exist by implication.”[5] (Emphasis mine)
4. It is the foundation of the principle of separation of powers
The Federal Court in Semenyih Jaya posited this:
“The Judiciary is thus entrusted with keeping every organ and institution of the state within its legal boundary. Concomitantly the concept of the independence of the Judiciary is the foundation of the principles of the separation of powers.”[6] (Emphasis mine)
5. Its goal is to ensure justice is done and to ensure public confidence in the justice system
Support for this legal proposition can be found in the Federal Court’s judgment in Metramac Corporation Sdn Bhd (formerly known as Syarikat Teratai KG Sdn Bhd) v Fawziah Holdings Sdn Bhd; Tan Sri Halim Saad & Che Abdul Daim Hj Zainuddin (interveners) [2007] 5 MLJ 501:
“The goal of judicial independence is to ensure justice is done in individual cases and to ensure public confidence in the justice system.”[7] (Emphasis mine)
6. An independent Judiciary has been entrusted with the task of interpreting all laws
This was held by Gopal Sri Ram JCA (later FCJ) in Sugumar Balakrishnan v Pengarah Imigresen Negeri Sabah & Anor [1998] 3 MLJ 289:
The Federal Constitution has entrusted to an independent judiciary the task of interpreting the supreme law and, indeed, all laws enacted by the legislative arm of government.”[8] (Emphasis mine)
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by Joshua Wu Kai-Ming | Jun 30, 2025 | Law
According to the Judicial Appointments Commission (“JAC”)’s website, there are 2 vacancies for the post of “Judge of Federal Court”[1]:
The information on the JAC’s website is presumably accurate, at the time of its publication.
However, based on publicly available information, the number of vacancies in the Federal Court are expected to rise with the following judges who have either retired or are expected to retire in 2025:
Judge
(in order of seniority of position, followed by date of appointment) |
Initial Retirement Date
(if there is no extension) |
Extended? |
Extended Retirement Date
(if there is an extension) |
| Tun Tengku Maimun binti Tuan Mat (Chief Justice) |
1/7/25[2] |
Uncertain (as at the time of writing)[3] |
N/A |
| Tan Sri Datuk Amar Abang Iskandar bin Abang Hashim (President of the Court of Appeal) |
2/7/25[4] |
Uncertain (as at the time of writing)[5] |
N/A |
| Tan Sri Hasnah binti Dato’ Mohammed Hashim (Chief Judge of Malaya) |
14/5/25[6] |
Yes, for 6 months[7] |
14/11/25 |
| Tan Sri Dato’ Sri Abdul Rahman Sebli (Chief Judge of Sabah & Sarawak) |
24/1/25[8] |
Yes, for 6 months[9] |
24/7/25 |
| Tan Sri Datuk Nallini Pathmanathan |
22/8/25[10] |
Uncertain (as at the time of writing)[11] |
N/A |
| Dato’ Zabariah binti Mohd Yusof |
10/4/25[12] |
Yes, for 6 months[13] |
10/10/25 |
| Tan Sri Harmindar Singh Dhaliwal |
October 2024 |
Yes, for 6 months[14] |
22/4/25[15] |
| Datuk Abdul Karim Abdul Jalil |
10/4/25[16] |
Reportedly offered extension but refused the offer[17] |
N/A |
| Datuk Hanipah binti Farikullah |
22/5/25[18] |
Yes, for 6 months[19] |
22/11/25 |
Other than those mentioned above, six (6) Federal Court judges remain at the time of writing.[20]
Four (4) of the six (6) remaining Federal Court judges will likely be appointed to office bearer/holder positions of the Judiciary.
This would then result in a significant vacancy for the post of Judge of the Federal Court, with two judges remaining out of an ideal of eleven judges.
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by Joshua Wu Kai-Ming | May 7, 2025 | Law
The civil courts have consistently recognised that the superior civil courts (namely the High Court, the Court of Appeal, and the Federal Court) are creatures of statute.
On the High Court being a creature of statute, the Federal Court in Gan Boon Aun v Public Prosecutor [2016] 4 MLJ 265 held the following:
“It is our considered view that the High Court, being a creature of statute, has no power to enlarge its jurisdiction under ss 30(2) and 84(1) of the CJA.”[1] (Emphasis mine)
As for the Court of Appeal being a creature of statute, this was acknowledged by the Federal Court in Dr Koay Cheng Boon v Majlis Perubatan Malaysia [2012] 3 MLJ 173:
“Being a creature of statute, the Court of Appeal has no power to enlarge its jurisdiction.”[2] (Emphasis mine)
The Federal Courts have accepted that even they are creatures of statute.
In Auto Dunia Sdn Bhd v Wong Sai Fatt & Ors [1995] 2 MLJ 549, Edgar Joseph Jr FCJ was of the following view:
“It is an elementary proposition that this court is a creature of statute and that equally a right of appeal is also a creature of statute, so that unless an aggrieved party can bring himself within the terms of a statutory provision enabling him to appeal, no appeal lies.”[3] (Emphasis mine)
Similarly, the Federal Court in Megat Najmuddin bin Dato Seri (Dr) Megat Khas v Bank Bumiputera (M) Bhd [2002] 1 MLJ 385 held as follows:
“The view expressed by his Lordship is but a mere reflection of the intention of Parliament. The Federal Court is a creature of statute. So is the right of appeal. This means that unless an aggrieved party can bring himself within the parameters of s 96(a) of the CJA, no appeal lies.”[4] (Emphasis mine)
In Latifah bte Mat Zin v Rosmawati bte Sharibun & Anor [2007] 5 MLJ 101, the Federal Court clarified that “statutes” included the Federal Constitution:
“The point to note here is that both courts, civil and shariah, are creatures of statutes. Both owe their existence to statutes, the Federal Constitution, the Acts of Parliament and the State Enactments. Both get their jurisdictions from statutes ie Constitution, federal law or state law, as the case may be.”[5] (Emphasis ours)
The very existence and constitution of the superior civil courts are established by virtue of Part IX of the Federal Constitution.[6]
Notably, certain aspects of the jurisdictions of the Court of Appeal and the Federal Court are explicitly provided for in the Federal Constitution.[7]
Notwithstanding that, the Federal Constitution provides that the following are “as may be conferred by or under federal law” or “as may be provided by federal law”:
(a) The jurisdiction and powers of the High Court;[8]
(b) The other (read: additional/further) jurisdiction(s) of the Court of Appeal;[9] and
(c) The other (read: additional/further) jurisdiction(s) of the Federal Court.[10]
The Courts of Judicature Act 1964, an ordinary statute, is one such federal law.
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by Joshua Wu Kai-Ming | Apr 2, 2025 | Law
In Ayer Molek Rubber Co Bhd v Insas Bhd & Anor [1995] 2 MLJ 734 (“Ayer Molek”), the Court of Appeal had made certain remarks against the High Court judge, the applicants, and the applicants’ counsel in its written grounds of judgment.[1]
On the appeal to the Federal Court in Insas Bhd. & Anor v. Ayer Molek Rubber Co. Bhd. & Ors [1995] 2 MLJ 833 (“Insas Bhd”), and on the application of the applicants, the Court of Appeal’s remarks were expunged:
“The objectionable and wholly offensive remarks made against a court of law, the plaintiffs and their solicitors, and the learned High Court judge, all of whom had had no opportunity to defend themselves in the face of such unwarranted and unjustified criticisms, ought to be expunged from the judgment of the Court of Appeal, as it has a tendency to bring the whole administration of law and order in the courts into disrepute. It is judicially recognized that judicial pronouncements should be judicial in nature and not depart from sobriety, moderation, and reserve.” (Emphasis mine)
The Supreme Court of India in The State of Uttar Pradesh vs Mohammad Naim AIR 1964 SC 703 (“Mohammad Naim”) laid down the following instructive test when considering whether to expunge remarks made in written grounds of judgment:
“It has been judicially recognised that in the matter of making disparaging remarks against persons or authorities whose conduct comes into consideration before courts of law in cases to be decided by them, it is relevant to consider: (a) whether the party whose conduct is in question is before the court or has an opportunity of explaining or defending himself: (b) whether there is evidence on record bearing on that conduct justifying the remarks; and (c) whether it is necessary for the decision of the case, as an integral part thereof, to animadvert on conduct. It has also been recognised that judicial pronouncements must be judicial in nature, and should not normally depart from sobriety, moderation and reserve.”[2] (Emphasis mine)
The test in Mohammad Naim did not feature in Insas Bhd even though Mohammad Naim was decided 30 years prior.[3]
Having said that, the factors taken into account by the Federal Court in Insas Bhd appear to mirror the considerations laid out in Mohammad Naim.
The test in Mohammad Naim, interestingly, was adopted and then added to by the Federal Court in Metramac Corporation Sdn Bhd (formerly known as Syarikat Teratai KG Sdn Bhd) v Fawziah Holdings Sdn Bhd; Tan Sri Halim Saad & Che Abdul Daim Hj Zainuddin (interveners) [2007] 5 MLJ 501:
“In State of Uttar Pradesh v Mohd. Naim, SK Das J, delivering the judgment of the court said that in such cases ‘it is relevant to consider (a) whether the party whose conduct is in question is before the court or has an opportunity of explaining or defending himself; (b) whether there is evidence on record bearing on that conduct justifying the remarks; and (c) whether it is necessary for the decision of the case, as an integral part thereof, to animadvert on that conduct’.
I agree that the sensible approach for this court to take is first to consider whether the statements, on the face of it, are offensive, objectionable, disparaging, unjust, unjustified and so on. If so, then the court should consider the three points mentioned above. However, there may be other factors arising from the circumstances of the case that may be relevant.”[4] (Emphasis mine)
However, the test in Mohammad Naim was applied as is by the Federal Court in Dato’ Seri Anwar bin Ibrahim v Public Prosecutor [2014] 3 MLJ 774[5]:
“Based on the above three considerations or tests propounded in the case of Mohd Naim and applying them in the context of the present case we agree with the submissions of learned deputy public prosecutor that the three tests had been satisfied justifying the learned judge to make the remarks which the learned judge did in the impugned paragraph.” (Emphasis mine)
The courts in the following cases expunged remarks from the written grounds of judgments of the courts below them:
1. PCP Construction Sdn Bhd v Leap Modulation Sdn Bhd (Asian International Arbitration Centre, intervener) [Federal Court Civil Application No 08(i)-394–07 of 2018(W)][6];
2. Lim Tuck Sun v Celcom (M) Bhd & Ors [2025] MLJU 1204 (CA);[7] and
3. Phileo Promenade Sdn Bhd & Anor v Premier Model (M) Sdn Bhd [2003] 2 MLJ 159 (CA)[8].
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by Joshua Wu Kai-Ming | Mar 2, 2025 | Law
1. Applications must be filed within three months
Order 53 of the Rules of Court (“ROC”) 2012 lays out the procedural aspects of judicial review applications.
Order 53 Rule 3(6) of the ROC 2012 provides the timeline for the filing of judicial review applications:
“An application for judicial review shall be made promptly and in any event within three months from the date when the grounds of application first arose or when the decision is first communicated to the applicant.” (Emphasis mine)
2. Extension of time applications should be sought where the timeline has passed
Order 53 Rule 3(7) of the ROC 2012 gives the Court the discretion to extend the time for judicial review applications provided there is a ‘good reason’:
“The Court may, upon an application, extend the time specified in rule 4(1) and if it considers that there is a good reason for doing so.” (Emphasis mine)
The Court of Appeal in P Maradeveran a/l Periasamy & Ors v Suruhanjaya Pilihan Raya & Anor [2019] 2 MLJ 70 held the following on the ‘good reason’ test:
“Whether ‘good reason’ exists is primarily a question of fact for the presiding judge to determine having regard to the material before him … There is no mystery to the phrase ‘good reason’. It means correct or proper reason.”[1] (Emphasis mine)
The Court is not required to consider the merits of the case when considering an extension of time application: Wong Kin Hoong & Anor (suing for themselves and on behalf all of the occupants of Kampung Bukit Koman, Raub, Pahang) v Ketua Pengarah Jabatan Alam Sekitar & Anor [2013] 4 MLJ 161.[2]
3. Non-compliance goes to the jurisdiction of the Court
In Mersing Omnibus Co Sdn Bhd v Minister of Labour & Manpower & Anor [1983] 2 MLJ 54, the Federal Court expressly held this:
“We took the point ourselves as it clearly goes to the jurisdiction of the court from which leave to apply for certiorari was sought as Order 53 rule 1(1) stipulates that no application for an order of certiorari shall be made unless leave therefor has been granted and rule 1A which we have already adverted to enacts that leave shall not be granted except in accordance with its specific provisions.”[3] (Emphasis mine)
The Federal Court in Ravindran v Malaysian Examination Council [1984] 1 MLJ 168 had a similar view:
“In our view the whole issue is clearly one of jurisdiction. In the event only the first consideration of the Judge is relevant. Since the Judge rejected the explanation for the delay it follows that the Court had no jurisdiction to hear the application for leave for an order of certiorari.”[4]
This was subsequently reiterated by the Federal Court in Wong Kin Hoong & Anor (suing for themselves and on behalf all of the occupants of Kampung Bukit Koman, Raub, Pahang) v Ketua Pengarah Jabatan Alam Sekitar & Anor [2013] 4 MLJ 161, at para 30, and Kijal Resort Sdn Bhd v Pentadbir Tanah Kemaman & Anor [2016] 1 MLJ 544, at pp. 579-580..
4. The actual date of what is being challenged has to be identified
Support for this proposition can be found in Abdull Hamid Embong JCA (later FCJ) judgment in Abdul Rahman bin Abdullah Munir & Ors v Datuk Bandar Kuala Lumpur & Anor [2008] 6 MLJ 704 (“Abdul Rahman”):
“It is thus crucial to first identify definitely what the decision is that is sought to be impugned. This has to be the actual date (see Majlis Perbandaran Pulau Pinang v Syarikat Bekerjasama Serbaguna Sungai Gelugor Dengan Tanggungan [1999] 3 MLJ 1). The appellants’ interpretation towards the first respondent’s non-response to their letter makes no sense and far stretching one’s imagination. This would give rise to an artificial meaning to the word decision. The date of the decision too becomes fictitious which makes the computation of the statutory time limit under O 53 of the RHC indeterminable.”[5] (Emphasis mine)
In situations where a public authority fails to respond to a letter within a deadline stipulated in the letter, can the failure to respond be challenged by way of judicial review?
The Court of Appeal in Abdul Rahman made it clear that such failures to respond are not amenable to judicial review:
“To say that the decision was only made on 5 January 2005 after the first respondent had failed to revert to their letter of 22 December 2004, is fallacious. We also find it ludicrous for the appellants to hold the view that a decision was only arrived at when the first respondent failed to respond to the one-week time period ultimatum in their letter. The latter was not duty-bound to respond to what we feel, corresponded to a threat.
Thus, our view is that no decision was made by the first respondent pursuant to that letter. No decision need in fact be made as it was already made earlier.
…
We also agree with the learned judge’s finding that the decision as alleged by the appellants is artificial and is thus not susceptible to judicial review.”[6] (Emphasis mine)
It is important to note that Abdul Rahman was decided prior to the amendment to Order 53 Rule 2(4) of the ROC 2012 via PU(A) 232/2012 which expanded the scope of judicial review from a “decision” to a “decision, action or omission” by a public authority.
The High Court in the following decisions departed from Abdul Rahman on this and held that the non-reply to a letter amounts to an “omission”/deemed “decision” and is amenable to judicial review:
(a) Sentul Raya Sdn Bhd v Ketua Pengarah Hasil Dalam Negeri [2024] MLJU 2646;[7]
(b) Udapakat Bina Sdn Bhd v Ketua Pengarah Hasil Dalam Negeri [2024] MLJU 1880;[8]
(c) WCE Holdings Bhd v Menteri Kewangan Malaysia (Ketua Pengarah Hasil Dalam Negeri, intervener) [2024] MLJU 257;[9]
(d) Lush Development Sdn Bhd v Ketua Pengarah Hasil Dalam Negeri [2023] MLJU 2889;[10]
(e) Tanda Bestari Development Sdn Bhd v Ketua Pengarah Hasil Dalam Negeri [2023] MLJU 2887;[11] and
(f) Impian Seloka Sdn Bhd v. Menteri Kewangan Malaysia [2022] MLJU 3479.[12]
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