Guest post

Online Civil Trials in Malaysia: The Positives and Negatives

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This is a guest post by Joshua Wu. It is one of the 3 articles selected to be published on TML following our open call for submissions. We would like to thank everyone who sent in their articles. We hope to see more quality legal writing published, which will hopefully lead to vibrant discussions and thought leadership in the Malaysian legal industry.

Malaysia’s Judiciary has proposed amendments to the civil procedure rules for online civil trials by remote communication technology. As detailed below, online civil trials can have positive effects but with possible weaknesses as well.

On 23 April 2020, the Malaysian Judiciary made history as it live streamed a Court of Appeal hearing. The live stream was opened to the public and was done so on the Judiciary’s website and YouTube channel.

The anticipated next step is the introduction of online civil trials. This is not a unique phenomenon as courts in other jurisdictions, such as China and the United Kingdom, have experimented with online trials. Indonesia has also recently announced that it will be embracing online trials.

The move towards holding online civil trials in Malaysia is already in motion. The Judiciary has proposed amendments to, among others, the Rules of Court 2012. Some of the key amendments will allow for:

  1. proceedings through remote communication technology;
  2. a person or witness to give evidence through remote communication technology; and
  3. the examination, cross-examination, and re-examination of a person or witness through remote communication technology.

Some of the positives and negatives associated with holding online civil trials in the Malaysian context will be briefly examined. Continue reading →

The Companies Exemption Order on Winding Up – Ingenious or Illegal?

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This is a guest post by Gerard Tang and Tan Hei Zel. It is one of the 3 articles selected to be published on TML following our open call for submissions. We would like to thank everyone who sent in their articles. We hope to see more quality legal writing published, which will hopefully lead to vibrant discussions and thought leadership in the Malaysian legal industry.

The Companies (Exemption) (No. 2) Order 2020 (“Order”) has provided temporary reprieve from winding-up proceedings. The Order, issued by the Minister of Domestic Trade and Consumer Affairs (“Minister”), has extended the time frame to respond to a statutory demand up to six months. However, this article explains how the Order is potentially ultra vires and flawed.

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The Order exempts all companies from section 466(1)(a) of the Companies Act 2016 (“Act”). Section 466(1)(a) provides for a statutory presumption of insolvency of a company where:

(a) the company is indebted in a sum exceeding the amount prescribed by the Minister;

(b) a notice of demand for the debt is served on the company; and

(c) the company fails to pay the debt within 21 days after service of the notice.

The exemption is applicable to notices served between 23 April 2020 and 31 December 2020. This exemption is subject to the condition that a company shall pay its debt within 6 months after service of the notice (“Condition”). This is a timely measure to tide businesses over during the economic downturn and a creative use of the exemption provision in the Act. However, we argue that the Order is potentially ultra vires and flawed. Continue reading →

8 Tips: Strategic Approach to Civil Litigation and Writing Impactful Legal Submissions

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Guest writer Chua Yi Xin shares 8 key takeaways from the recent webinar by the former Chief Justice of Malaysia, Tan Sri Datuk Seri Panglima Richard Malanjum.

Amidst the chaos of a global pandemic, having access to a mountain of free webinars from experts online is a welcome change. It seems that every other day my inbox is swarmed with links to virtual talks as lawyers move their practice online. However, one stood out among the crowd.

Last Saturday, I attended the Strategic Approach on Civil Litigation and Writing Impactful Submissions Webinar, hosted by the Sabah Law Society with guest speaker Tan Sri Datuk Seri Panglima Richard Malanjum. The 2 ½ hours webinar was well worth the time as he presented in an honest and direct manner, giving us a rare look of the expectations from the Bench.

Here are 8 key takeaways for effective civil litigation and writing legal submissions.
Continue reading →

Submissions open — Get published on TML

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We have noticed a recent increased interest among Malaysian lawyers to write and publish articles. This is based on the discussions and feedback we have been received in the past couple of months, as well as the comments and questions that came up when Lee Shih was a panellist on the recent webinar organised by the KL Bar Young Lawyers’ Committee. Since the MCO started, there has also been an obvious increase in Malaysian lawyers being active on LinkedIn, and publishing longer-form updates or write-ups there.

One of the comments we have been hearing is that many lawyers, particularly young lawyers, still have reservations about publishing their writing. Commonly (and understandably), they feel that they are not experienced enough and need time to build confidence. Another barrier seems to be that they don’t know how or where to publish what they’ve written — whether they need to create their own blog or website, submit to existing online or print publications, or publish on mediums such as LinkedIn.

In view of this, we have decided to invite submissions for articles to be published on The Malaysian Lawyer (TML). This website does not usually accept submissions, so this is a rare opportunity. We hope that this will particularly encourage first-time writers, or those who have ideas for articles but have been dithering on whether/when/how/where to get published.

Continue reading →

Malaysia’s New Attorney General (Idrus Harun): His Top 3 Cases as a Federal Court Judge

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[This is a guest post by Kwan Will Sen. He is a litigation partner focusing on commercial litigation and arbitration, and fraud and asset recovery.]

Idrus Harun was a Judge of the apex Court of Malaysia, the Federal Court. He has been appointed as the Attorney General (AG) effective 6 March 2020, replacing Tommy Thomas.

I discuss three significant decisions by Idrus Harun FCJ (as he then was). He wrote the Federal Court’s grounds of judgment for the first two cases (Ireka/ Jack-In Pile and Nautical Supreme), and was part of the minority for the third case (JRI Resources). Continue reading →

IRB Tax Dawn Raid – How to Deal With It

The Malaysian Lawyer1 Comment

Guest authors, Siong Sie and Desmond Liew, set out tips on what to do if there is a surprise visit or a dawn raid carried out by the Inland Revenue Board.

The news recently featured the new Tax Investigation Framework 2020 of the Inland Revenue Board of Malaysia (IRB).

The Inland Revenue Board of Malaysia (IRB) actively conducts tax investigations or “raids” on taxpayers. The main purpose of these raids is to deter tax evasion and/or aggressive tax planning with the ultimate aim of enhancing tax compliance. It is not uncommon for the IRB to have obtained a reasonable amount of information – either through its own global intelligence or through informers – prior to conducting a dawn raid on a taxpayer.

Siong Sie and Desmond, set out some tips on what to do if there is such a surprise visit or a dawn raid carried out by IRB. Continue reading →