![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 | 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]
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by Joshua Wu Kai-Ming | Nov 1, 2023 | Law
The doctrine of stare decisis, or judicial precedent, is a “fundamental rule of the common law”[1] which applies within Malaysian jurisprudence.[2]
With regard to the application of the doctrine, it is not disputed that courts are bound by the decisions of superior courts.[3]
A question arises whether, as a general rule, the Federal Court (which is Malaysia’s apex court) is bound by its previous decisions.
Pre-2021
Pre-2021, it appeared that the consensus to the question was in the affirmative and that it was trite law.
In Central Securities (Holdings) Bhd v Haron bin Mohamed Zaid [1980] 1 MLJ 304, the Federal Court held:
“… the Federal Court was bound to follow its previous decisions which have held that an order giving leave to sign final judgment is a final and not an interlocutory order”[4] (Emphasis mine)
Wan Suleiman SCJ in Lorrain Esme Osman v Attorney General of Malaysia [1986] 2 MLJ 288 held that the Supreme Court (now the Federal Court) is bound by its previous decisions when sitting in a constitutional role:
“the Supreme Court sitting in its constitutional role is bound by its previous decision”[5]
The Federal Court in Kerajaan Malaysia v Tay Chai Huat [2012] 3 CLJ 577 was of the view that the Federal Court must follow its proclamations of law made in earlier cases:
“[35] I would think that the attitude of this court towards its previous decisions such as Utra Badi and Vickneswary upon questions of law should, in my opinion be the same. It is of supreme importance that people may know with certainty what the law is, and this end can only be attained by a loyal adherence to the doctrine of stare decisis. Little respect will be paid to our judgments if we overthrow that one day which we have resolved the day before.
…
[50] … I would think that this court must follow its own proclamations of law made earlier on other cases and honour these rulings. After all, this court is the highest court in the country.”[6] (Emphasis mine)
In Asia Pacific Higher Learning Sdn Bhd (registered owner and licensee of the higher learning institution Lincoln University College) v Majlis Perubatan Malaysia & Anor [2020] 2 MLJ 1, a January 2020 decision, Azahar Mohamed CJM (in delivering the supporting judgment) opined that:
“[17] Indeed, the doctrine of stare decisis dictates that as a matter of a general rule of great importance the Federal Court is bound by its own previous decisions. However, there are exceptional circumstances that allow them to depart from the earlier decision, but such power must be used sparingly.”[7] (Emphasis mine)
Two possible outliers to the apparent consensus on the Question are the decisions of the Federal Court in Dalip Bhagwan Singh v. Public Prosecutor [1997] 4 CLJ 645 (“Dalip Bhagwan”) and Gnanasekaran a/l Krishnasamy v Suruhanjaya Perkhidmatan Awam, Malaysia & Anor [2010] 6 MLJ 441 (“Gnanasekaran”).
In Dhalip Bahgwan, Peh Swee Chin FCJ appeared to be of the view that the doctrine of stare decisis did not apply to the Federal Court:
“The doctrine of stare decisis or the rule of judicial precedent dictates that a court other than the highest court is obliged generally to follow the decisions of the courts at a higher or the same level in the court structure subject to certain exceptions affecting especially the Court of Appeal.”[8] (Emphasis mine)
Having said that, His Lordship went on in Dalip Bhagwan to point out that the Federal Court has the power to depart from its previous decisions and that the power should be exercised sparingly[9] thereby implying an affirmative answer to the Question.
In Gnanasekaran, Richard Malanjum CJ (Sabah and Sarawak) [later CJ] mentioned in passing that the Federal Court is not necessarily bound by its earlier decisions:
“After all this court is not necessarily bound by its own earlier decision and may depart from it where necessary (see Tan Ying Hong v Tan Sian San & Ors [2010] 2 MLJ 1; [2010] 2 CLJ 269).”[10] [Emphasis mine]
Richard Malanjum CJ (Sabah and Sarawak)’s intentional use of the word “necessarily” and understood in the context of his point of the Federal Court being able to depart from its previous decisions where necessary, His Lordship appears to be of view is that the Federal Court is not bound without exceptions to its earlier decisions. As a general rule, it is likely that His Lordship would have agreed that the Federal Court is bound by its previous decisions.
2021
In 2021, in two of its decisions, the Federal Court answered the Question in the negative.
In Maria Chin Abdullah v Ketua Pengarah Imigresen & Anor [2021] MLJU 12 (“Maria Chin”), a decision of the Federal Court delivered on 12th January 2021, the majority held that:
“[55] Having regard to the principles laid down in these cases, I am unable to accept the appellant’s argument that Sugumar Balakrishnan was decided per incuriam. First of all, being a decision of the apex court, it is not subject to the stare decisis rule. It was therefore wrong for counsel to say that it has no binding effect as a precedent on the ground that “it ignored a plethora of cases of high authority which established beyond peradventure that even widely worded ouster clauses cannot exclude judicial review”.”[11] (Emphasis mine)
Months later, the Federal Court in Goh Leong Yong v ASP Khairul Fairoz Rodzuan & Ors [2021] 8 CLJ 331 (“Goh Leong Yong”) decided as follows:
“[178] … In short, Dalip Bhagwan Singh was concerned with the doctrine of stare decisis which, as I mentioned, applies only to courts below the Federal Court. As for the Federal Court itself, it is only constrained by the per incuriam rule.” (Emphasis mine)
Post-2021
In a recent decision, post-Maria Chin and post-Goh Leong Yong, the Federal Court in Tenaga Nasional Berhad v Chew Thai Kay & Anor [2022] 2 CLJ 333 appears to have reverted to the pre-2021 position:
“We will say at once that overturning our own precedent is a serious matter. This court must always respect its own precedents. The rule of legal precedence must be followed in the interest of certainty. Great sanctity must be attached to the finality of our judgment. This is not to say that this court should never depart from an earlier decision. We do not blindly honour stare decisis. While it is true that we can overturn our own precedent in exceptional cases where it is really necessary, as an apex court, we need to be cautious about departing from our own earlier decision especially in a case that concerns the interpretation of a legislative provision, lest we lose the trust of public by persistent shifts of laws.”[12] (Emphasis ours)
It remains to be seen whether Maria Chin and Goh Leong Yong will be considered as blips in Malaysian jurisprudence on the doctrine of stare decisis or whether they will form the foundation which will develop the doctrine in the direction of other Commonwealth jurisdictions, some of which were pointed out by Hashim Yeop Sani CJ in Government Of Malaysia v. Lim Kit Siang & Another Case [1988] 1 CLJ Rep 63:
“On the question of binding precedents the House of Lords is no longer bound by its own previous decisions – see Practice Statement (Judicial Precedent) [1966] 1 WLR 1234 issued by Lord Gardiner LC on behalf of himself and the Lords of Appeals in Ordinary on 26 July 1966. The Indian Supreme Court in The Bengal Immunity Company Limited v. The State of Bihar & Ors. [1955] 2 SCR 603 held that it would not be bound by its own previous decisions and that nothing in the Constitution prevented the Supreme Court from departing from its previous decisions. The United States Supreme Court too has a number of times reversed itself. The Privy Council has also held that it was not absolutely bound to follow its earlier decisions.”[13]
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by Joshua Wu Kai-Ming | Jun 6, 2023 | Law
Yekambaran s/o Marimuthu v Malayawata Steel Bhd [1993] MLJU 96 (“Yekambaran”) is an oft quoted decision by Edgar Joseph Jr SCJ on the test to be applied in an application for discovery.
Yekmbaran is actually a case whereby Edgar Joseph Jr (despite being a Supreme Court judge then) sat in a High Court judge’s capacity to hear a High Court matter.
Section 18(1) of the Courts of Judicature Act 1964 (“CJA 1964”)[1], read together with the definition of “Judge” in Section 3 of the CJA 1964,[2] allow for a Federal Court judge, Court of Appeal judge, or High Court judge to hear a matter in the High Court.
The fact that Edgar Joseph Jr was a Supreme Court judge when he heard and decided on Yekambaran does not take away from the fact that:
(a) Yekambaran is a decision of the High Court;
(b) Yekambaran is binding where subordinate/inferior courts are involved;[3] and
(c) Yekambaran is only persuasive where superior courts are involved.
The following cases, regrettably, wrongly quoted Yekambaran as being a decision of the Supreme Court:
(a) Bandar Utama Development Sdn Bhd & Anor v Bandar Utama 1 Jmb [2018] MLJU 697 (a decision of the Court of Appeal):
“… (a) In Yekambaran s/o Marimuthu v Malayawata Steel Berhad [1994] 2 CLJ 581, the Supreme Court set out the threshold test the applicant had to satisfy to succeed in an application for discovery.”[4] (Emphasis mine)
(b) Suruhanjaya Pilihan Raya & Ors v Kerajaan Negeri Selangor and another appeal [2018] 2 MLJ 322 (a decision of the Court of Appeal):
“As for the elements required to be shown for the grant of an order for discovery, the then Supreme Court in Yekambaran s/o Marimuthu v Malayawata Steel Bhd [1993] MLJU 96; [1994] 2 CLJ 581 through Edgar Joseph Jr SCJ had this to say …”[5] (Emphasis mine)
(c) Power Cellular Accessories Supply Sdn Bhd v Pesuruhjaya Tanah Persekutuan & Ors [2019] MLJU 751 (a decision of the High Court):
“On the same issue, the general legal principle on the requirements to be fulfilled in a discovery application has been laid down by the Supreme Court in the case of Yekambaran Marimuthu v Malayawata Steel Bhd [1994] 2 CLJ 581 …”[6] (Emphasis mine)
(d) Golden Affinity Development Sdn Bhd v Lim Yok Wah & Ors [2020] MLJU 1463 (a decision of the High Court):
“On the same issue, the general legal principle on the requirements to be fulfilled in a discovery application as laid down by the Supreme Court in the case of Yekambaran Marimuthu v. Malayawata Steel Bhd [1994] 2 CLJ 581 …”[7] (Emphasis mine)
(e) Teknologi Enviro-Kimia (M) Sdn Bhd v Bufflow Engineering Sdn Bhd & Ors [2022] MLJU 2759 (a decision of the High Court):
“The general legal principle that is required to be fulfilled in a discovery application is found in the oft-quoted Supreme Court case of Yekambaran Marimuthu v Malayawata Steel Berhad [1994] 2 CLJ 581, where his Lordship Edgar Joseph Jr SCJ stated …”[8] (Emphasis mine)
Notwithstanding the value and propriety of the test laid down in Yekambaran, decisions (such as the above) which incorrectly quote Yekambaran as a decision of the Supreme Court incorrectly elevate Yekambaran vis-a-vis the doctrine of judicial precedent and run the risk of muddling case law which are binding on superior courts vis-a-vis applications for discovery.
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