Judicial Misquotation of Pan Malaysia Equities Sdn Bhd v Angeline Tan Eei We [2010] MLJU 1528

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.

(more…)

Judicial Misquotation: Examining the Error in TEM Combustion Sdn Bhd v Latex Form Sdn Bhd [2023] MLJU 3074

by Joshua Wu Kai-Ming | Feb 5, 2025 | Law

In TEM Combustion Sdn Bhd lwn Latex Form Sdn Bhd [2023] MLJU 3074 (“TEM Combustion”), the learned High Court judge referred to the Court of Appeal’s decision in Paradise Boulevard Sdn Bhd v Badan Pengurusan Bersama Kompleks Pandan Safari Lagoon [2021] MLJU 2889 (“Paradise Boulevard”):

“[21]  Mahkamah ini mendapati dari mula barangan dihantar serah kepada Defendan, tiada sebarang aduan dikemukakan dan segala kecacatan yang ditimbulkan oleh Defendan mengenai barangan Plaintif hanyalah selepas tindakan ini difailkan. Inilah yang diperkatakan oleh Mahkamah Rayuan didalam kes Paradise Boulevard Sdn Bhd v Badan Pengurusan Bersama Kompleks Pandan Safari Lagoon [2021] MLJU 2889: –

“[37] When viewed in totality, the averments and arguments raised by the first defendant are considerably inflicted by various shortcomings that do little, if at all to advance its resistance to this summary judgment application. The defendant also did not dispute the invoices sent by the Plaintiff and only raised its complaints after the writ in the main action was filed. This also suggests the issue raised by the defendant contesting this summary judgment are an afterthought”.^[1] (Emphasis mine)

[The extract from Paradise Boulevard which was cited in paragraph 21 of TEM Combustion is referred to as the “Impugned Paragraph”].

In Paradise Boulevard, the Impugned Paragraph was the Court of Appeal’s summary of the High Court’s decision:

“[15]  The issues that were raised by the Defendant in opposing the Plaintiff’s application for summary judgment (Enclosure 14) were dealt with by the Judge under the heading – “Evaluation and Finding of this Court” and they read (with emphasis added) as follows:

…

[37] When viewed in totality, the averments and arguments raised by the first defendant are considerably inflicted by various shortcomings that do little, if at all, to advance its resistance to this summary judgment application. The defendant also did not dispute the invoices sent by the plaintiff and only raised its complaints after the writ in the main action was filed. This also suggests the issues raised by the defendant contesting this summary judgment are an afterthought.”^[2]

This is confirmed upon examining Mohd Nazlan Mohd Ghazali J (now JCA)’s Grounds of Judgment in Badan Pengurusan Bersama Kompleks Pandan Safari Lagoon v Paradise Boulevard Sdn Bhd [2021] MLJU 1464:^[3]

Whether the Impugned Paragraph is a decision of the Court of Appeal or the High Court matters for the purposes of judicial precedent.

The Impugned Paragraph, in effect being a decision of the High Court, is not binding on the High Court in TEM Construction though the judge could have abided by it on the basis of judicial comity.^[4]

The present misquotation is less detrimental as TEM Construction is only a decision of the High Court, and the Court of Appeal in Paradise Boulevard was of the view that “the [High Court] Judge dealt convincingly with all the points made by counsel for the Defendant in respect of both applications”^[5] and “are satisfied that there are no bona fide triable issues warranting a trial.”^[6]

(more…)