Nadzarin Kuok Puthucheary & Tan

Nadzarin Kuok Puthucheary & Tan Your trusted law firm and business partner. We work to understand your needs and desire to help you succeed.

Strategically located in the three main financial hubs in Malaysia: Kuala Lumpur, Penang and Johor Bahru. PENANG OFFICE
225A Jalan Burma
10050 Penang
Malaysia

Tel: 604.2278 995 / 604.2269 210
Fax: 604.2278 997
Email: [email protected]

KUALA LUMPUR OFFICE
B4-3A-2, Solaris Dutamas
Jalan Dutamas 1
50480 Kuala Lumpur
Malaysia

Tel : 603.6207 8986
Fax: 603.6207 8987
Email : [email protected]

JO

HOR BAHRU OFFICE
Suite 8.3, Level 8, Menara Pelangi
2, Jalan Kuning, Taman Pelangi
80400 Johor Bahru
Malaysia

Tel: 607.3349 288
Fax: 607.3349 290
Email: [email protected]

WHY ARE MOVIES BANNED IN MALAYSIA BY THE GOVERNMENT?On 28 July 2022, Golden Screen Cinemas had on their social media pla...
12/08/2022

WHY ARE MOVIES BANNED IN MALAYSIA BY THE GOVERNMENT?

On 28 July 2022, Golden Screen Cinemas had on their social media platforms announced and confirmed that Thor: Love and Thunder will not be released in Malaysia. For avid movie fans, this is again another unpleasant episode of a theatrical show being banned following the Pixar movie “Lightyear” in June 2022. One may question, on what basis are these movies banned and which authority in Malaysia in fact holds the power to make such decisions?

In Malaysia law, film screenings are governed by Films Censorship Act 2002 (“FCA 2002”) and the government authority that is in charge for a film’s exhibition is the Film Censorship Board (“LPF”). Pursuant to Section 10 of FCA 2002, LPF is authorized to approve with or without alterations a film for screening or refuse the screening altogether.

It is also important to note that under section 5 of the FCA 2002, it is a criminal offence to screen a film that is “obscene or is otherwise against public decency”. However, the words “obscene” and “against public decency” are not defined under the FCA 2002.

In the case of the movie Lightyear, LPF clarified that Lightyear was not in fact banned in the first instance. Instead, LPF had first approved it for screening but with minor cuts and “muting” of a specific dialogue. These cuts and muting were suggested on grounds that these scenes contained elements that promoted a homosexual lifestyle and this is contrary to LPF’s guidelines.

Further, LPF recommended a P13 parental guidance rating. However, The Walt Disney Company (Malaysia) Sdn Bhd turned down the suggestions by LPF and declined to remove depictions of a same-sex relationship, including a kiss between two married female characters. This refusal eventually led to the banning of the movie.

Subsequently, when Disney Marvel announced that the movie Thor: Love And Thunder would not be released in Malaysia, netizens were understandably very disappointed and vented their frustration online. Many wondered, why?

After weeks of speculation, the Deputy Communications and Multimedia Minister Zahidi Zainul Abidin confirmed that the movie did not pass the country's censorship guidelines due to le***an, gay, bisexual, and transgender (LGBT) elements. Needless to mention, the scene of Chris Hemsworth's naked buttocks (viraled on the internet) did not help.

What is clear from the above is that the LPF is exercising the wide powers provided to it under the law by Parliament. However, what may need some reviewing is the guidelines that inform that exercise of power. Further, what amounts to “obscene” or “against public decency” ought to be defined more precisely by Parliament, taking into account the realities of today including the internet and the changing perceptions of society today.

DOES THE MALAYSIAN GOVERNMENT OWE MONEY TO THE SULU SULTANATE’S HEIRS?In mid-July 2022, Malaysians learnt that a group o...
08/08/2022

DOES THE MALAYSIAN GOVERNMENT OWE MONEY TO THE SULU SULTANATE’S HEIRS?

In mid-July 2022, Malaysians learnt that a group of heirs of the Sulu Sultanate (“Sulu Heirs”) were attempting to seize assets of PETRONAS subsidiaries in Luxembourg. Many were baffled by this and questions have come up as to whether Malaysia is in debt to these Sulu Heirs.

The story begins in 1878 when the Sultan of Sulu granted all rights and powers in connection to parts of Sabah to the British North Borneo Company (“SBUB”). This granting of rights and powers, which was intended to be ‘forever and in perpetuity’, was for the sum of 5,000.00 dollars per annum. Later, in 1903, the Sultan of Sulu signed a deed granting SBUB rights and power over some additional islands with an increase of annual compensation to 5,300.00 dollars.

These 5,300 dollars was first paid by SBUB and then by the British Government until the formation of Malaysia in 1963. From that point onwards, Sabah became a part of the Federation of Malaysia, an independent country free from the burdens of colonialism. However, the Malaysian government chose to take over the payment of 5,300.00 dollars (in Malaysian Ringgit) from the British Government and continued doing so up until 2013, when the payments were suddenly stopped. Although no official statement has been made explaining the decision to stop paying the Sulus in 2013, the armed invasion into Lahad Datu is assumed to be the reason behind it.

Unhappy having not been paid their annual compensation since 2013, Sulu Heirs claimed a whopping US$32.20 billion from the Government of Malaysia. This amount is far larger that the RM5,300.00 yearly payments from 2013. According to the Sulu Heirs, they are entitled to payments for the income made from Sabah’s natural resources.

The Sulu Heirs’ claim was successful in part and they obtained an arbitration award for US$14.92 billion with 10% interest per annum and further costs of US$7.5 million. This award was made by a sole arbitrator, Gonzalo Stampa who is believed to be based in Spain. Clearly, this award has gone far beyond the RM5,300.00 not paid by Malaysia since 2013. This is not to mention that Stampa had no legal jurisdiction to make the award in the first place.

What is Malaysia’s position? Do we owe the Sulu Heirs money? Is Malaysia bound by the award in favour of the Sulu Heirs?

Having committed to making payments of RM5,300.00 to the Sulu Heirs for 50 years, any attempt by Malaysia to deny responsibility over the same would be an attempt to reverse a longstanding agreement, or simply a ‘u-turn’. If the Malaysian Government no longer wants to make these payments (be it for the Lahad Datu invasion or otherwise), the proper course of action would be to look to the Courts. As this has not been done, the Malaysian Government has essentially defaulted on these payments. This position was made clear in the Attorney General’s (Tommy Thomas at the time) letter to the Sulu Heir’s lawyers offering to make payment of RM48,230.00 (RM37,100.00 and 10% interest amounting to RM11,130.00).

However, there is a huge gap between what Malaysia recognised as compensation to the Sulu Heirs and what has been awarded. The Prime Minister’s office has made it crystal clear that the award is invalid and in violation of law. The proper place to determine the Sulu Heirs’ claim is the Malaysian Courts, as was done in 1939 when predecessors to the Sulu Heirs had succeeded in claiming the 5,300.00 dollar compensation from the Government of North Borneo.

In short, if the Sulu Heirs have a claim to make against the Malaysian Government, they can make it at the Malaysian Courts. Until then, the Malaysian Government will fight the outrageous award for US$14.92 billion.

27/07/2022

Meet our Partner, Paula Ng Su Ping. Based at our Penang Branch, Paula is well known for her legendary commitment to her clients, particularly for the personal touch that goes into every piece of professional work that Paula takes on. NKPT is blessed to have her as a leader and as a role model for all the lawyers in the firm to emulate.

HANG ON, IS THE DEATH PENALTY DEAD AND BURIED?On 10 June 2022, the Law Minister from the Prime Minister’s Department ann...
25/07/2022

HANG ON, IS THE DEATH PENALTY DEAD AND BURIED?

On 10 June 2022, the Law Minister from the Prime Minister’s Department announced that the Government of Malaysia had agreed to abolish the mandatory death penalty.

It is a welcomed announcement. For years, countless bodies and organizations had advocated for the death penalty to be abolished. Come 2022, Malaysia is moving towards the right direction. It is progressive and shows willingness to reform what is necessary.

The decision was engineered by the Special Committee to Review Substitute Sentences for the Mandatory Death Penalty, consisting of legal and academic experts and spearheaded by the former Chief Justice, Tun Richard Malanjum. The special committee, which was established in 2019, had presented a report to Dato Sri Dr. Wan Junaidi earlier this year and recommended, among others, for the mandatory death penalty to be substituted with punishments based on restorative justice.

Simply put, a new system will be put in place to assess and evaluate multiple factors before passing a sentence proportionate to the crime committed, rather than just dishing out the death penalty because the law says so.

Now, there are 22 offences which carries possible death penalty while 11 offences carry the mandatory death penalty.

Statistics show a majority of the mandatory death penalty sentencing is related to section 39B of the Dangerous Drugs Act 1952 i.e. drug trafficking. In that respect, many have argued that it is often the case that the drug mules (some who may be unsuspecting victims) are the ones on the receiving end of the mandatory death penalty while the drug kingpins roam free. This defeats the deterrent and preventive theory of punishments in criminal offences.

However, , it is worthy to note that only mandatory death penalty is to be abolished - not the death penalty as a whole. This really means that a Judge will no longer be compelled by legislation to sentence someone to death upon conviction (as is the case currently for some offences) but instead would be granted discretionary powers to determine if the accused ought to be put to death or otherwise.

This new position as announced by the Prime Ministers’ Department is still work in progress. It would require multiple amendments to various statutes. The amendments would also need to be proposed, tabled, debated, and passed in the Parliament first.

However, when the amendments do come into force, it will be a lifesaving one at its best, or life-changing at the very least.

18/07/2022

Messrs NKPT was born out of the merger of 3 law firms. As a result, today we are physically present to our clients in 3 major economic hubs of Peninsular Malaysia, providing high quality, committed and creative legal solutions across the country.

WHEN IS THE NEXT GENERAL ELECTION?In Malaysia, our Members of Parliament are chosen by general elections, the last being...
12/07/2022

WHEN IS THE NEXT GENERAL ELECTION?

In Malaysia, our Members of Parliament are chosen by general elections, the last being on 9 May 2018. Four years later and our political scene is vibrant with talk of the next general election. So, when is the deadline for Malaysia to hold its 15th General Election?

Following the 14th General Election, Parliament was summoned by the Yang di-Pertuan Agong (“YDPA”) on 16 July 2018. According to our Federal Constitution, Parliament cannot continue for more than 5 years from the date of its first meeting. This means that after 16 July 2023, the Malaysian Parliament will automatically be dissolved and the 15th General Election would have to be held within 60 days.

However, Parliament could be dissolved even before then, bringing the 15th General Election forward. This is often called a “snap election” as a general election would be called within just 60 days of Parliament’s premature dissolution. Although politicians often talk about the calling of the next general election, the reality is that the YDPA is the only one who can make the call, upon the request of the Prime Minister. While the Prime Minister may very well have his ‘lucky dates’ planned, it is the YDPA who has full power under the Federal Constitution to consent to the Prime Minister’s request to dissolve Parliament.

Does the YDPA have to accept the Prime Minister’s request? The answer is ‘No’ as the dissolution of Parliament is one of the few areas that falls within the discretion of the YDPA.

This means that between now and 16 July 2023, the Prime Minister would likely request that the YDPA dissolve Parliament. Should the YDPA give his consent to such a request, Parliament would subsequently be dissolved and the 15th General Election would be called within 60 days from then.

In the unlikely event that no request is made or consented to before then, Parliament would automatically be dissolved and the last possible date for the 15th General Election would be 17 September 2023.

So, unless you are the Prime Minister or the YDPA, your guess is good as mine as to whether the 15th General Election will happen in the next few months or next year!

IS ABORTION LEGAL IN MALAYSIA?On 24.6.2022, the US Supreme Court in Dobbs v Jackson Women’s Health Organization 597 U.S....
08/07/2022

IS ABORTION LEGAL IN MALAYSIA?

On 24.6.2022, the US Supreme Court in Dobbs v Jackson Women’s Health Organization 597 U.S. 2022 (Dobb) overruled its landmark decision in Roe v Wade 410 U.S. 113 (1973) (Roe). This decision generated a public outcry not only in the US but also in many other countries.

The significance of Roe was that it recognized a woman’s constitutional right to an abortion in the US, depending on which trimester of pregnancy the woman was in. Under Roe, a pregnant woman would be entitled to an abortion during the first 3 months of pregnancy, while there would be legal restrictions in the second and third trimester. However, by overruling Roe, Dobb revoked the constitutional right to an abortion and individual states in the US can now pass laws to regulate abortion procedure respectively.

Whilst it is a globally shared sentiment that American women today have less freedom than their mothers, one might also wonder “what does the law say about abortion in Malaysia?”

As a general rule, abortion is illegal and a criminal offence in Malaysia pursuant to S312 of the Penal Code, and this ban includes a woman who causes herself to miscarry. However, there are 2 exceptions to the rule i.e. an abortion may be legally performed if a registered medical practitioner is of the opinion, formed in good faith, (i) that the continuance of the pregnancy would pose a risk to a pregnant woman’s life or, (ii) the pregnancy may cause injury to the pregnant woman’s mental or physical health.

S312 of the Penal Code is silent on when can an abortion be performed. In PP v Wong Ah Kean [2010] 5 CLJ 599, the High Court sentenced the accused, a medical assistant, to 2 years imprisonment for performing an abortion on the victim who was more than 3 months pregnant and later passed away from excessive blood loss resulting from the abortion procedure.

In assessing whether there is “good faith”, the High Court would consider the circumstances of a case. In Public Prosecutor v Dr Nadason Kanagalingam [1985] 2 MLJ 122, the High Court rejected the obstetrician and gynecologist’s argument that the abortion was performed in good faith in order to save the woman who was suffering from enlarged varicose veins which might cause pulmonary embolism. The High Court found that the accused had not given reasonable consideration and had not taken enough steps to further examine the woman before performing the abortion, and the finding of enlarged varicose veins was no other than a mere clinical examination.

All in all, abortion is a vexed issue all over the world with many advocating for a woman’s right to decide what happens to her body while others argue that innocent life of an unborn child should be protected. Quite obviously, it is going to be hard to reconcile both positions. But, at the very least, we can and must continue to debate about this issue as mature members of society that care about doing the right thing.

SEXUAL HARASSMENT IN MALAYSIA: HOPE FOR THE FUTUREFor years, sexual harassment offences were not recognized by the law i...
05/07/2022

SEXUAL HARASSMENT IN MALAYSIA: HOPE FOR THE FUTURE

For years, sexual harassment offences were not recognized by the law in Malaysia. Although there were provisions for similar offences like molestation, assault and criminal intimidation, it did not cover the whole spectrum of what constitutes a sexual harassment. As such, it failed to provide adequate protection to victims of sexual harassment and punishment to the harasser.

However, there is hope. In the case of Mohd Ridzwan bin Abdul Razak v Asmah bt Hj Mohd Nor [2016] 4 MLJ 282, the Federal Court, the highest court in Malaysia, decided it was high time that the tort of sexual harassment be incorporated into the Malaysian legal system. Another key takeaway from this groundbreaking case is that it is not a legal requirement for the allegations to be corroborated as it would render the victim helpless since most sexual harassment would take place in private. It would be almost impossible to prove that the sexual harassment occurred if corroboration is needed.

In 2012, Parliament amended the Employment Act 1955 to govern the act of sexual harassment at workplace - see Section 81A to 81G of the Act.

Briefly, the Act defined sexual harassment as any unwanted conduct of a sexual nature, whether verbal, non-verbal, visual, gestural, or physical, directed at a person which is offensive or humiliating or is a threat to his/her well-being, arising out of and in the course of his/her employment.

The amended provisions laid out how complaints on sexual harassment can be made, how the employer should deal with such complaints and when does the role of the Director General comes into play. The complaints are not limited to sexual harassment made by employer to employee but also covers between employee-employee and employee-employer situations. Interestingly, if an employer fails to look into the complaint without valid reasons, the employer shall be liable to a fine not exceeding RM10,000.

Generally sexual harassment may also attract criminal penalties – regardless of whether it occurs in the workplace or otherwise. Section 354 of the Penal Code criminalizes sexual assault while section 377D provides for the offence of outraging on decency, both which may land the perpetrator with a hefty fine or imprisonment or both.

Inevitably, comprehensive laws are required to be implemented to ensure everyone can live a peaceful life without any fear of sexual harassments. Apart from that, we all need to play our part to increase awareness. When one talks, two will discuss, three makes a movement – and for sure, given the passage of time, that off-colour joke that was previously just laughed off as acceptable at the workplace, would eventually be frowned upon. And that’s the place we want to get to.

29/06/2022

Tempted to resort to outsourced labour to resolve your labour shortages problems? Think again! The legla penalty can be crushing to your business and personally damaging.

DEFECTIVE GOODS / UNSATISFACTORY SERVICES – WHAT CAN I DO?Let’s face it…we all love a good bargain. Retailers, whether i...
27/06/2022

DEFECTIVE GOODS / UNSATISFACTORY SERVICES – WHAT CAN I DO?

Let’s face it…we all love a good bargain. Retailers, whether in shopping malls or online, know this and are constantly enticing us to jump on the next big sale.

Amidst this excitement, often times we are caught up in the glossy hype and end up with goods or services that are unsatisfactory. Perhaps you purchased a defective electrical appliance. Or the top you purchased is falling apart at the seams even as you unpacked it. Sounds familiar?

Most times, we sweep it under the carpet as the price of the goods or services purchased is too trivial to sue the manufacturer or supplier in court. You might be wondering, when faced which such a dilemma, what can you do?

Good news! If you ever find yourself in such a situation, you can institute an action against the manufacturer or supplier in the Tribunal for Consumer Claims Malaysia (“TCCM”). The TCCM is an independent body established under the Consumer Protection Act (“CPA 1999”) to hear and determine claims filed by consumers in an easy, inexpensive and speedy manner.

Generally, TCCM has jurisdiction to hear consumer claims up to RM50,000.00 in respect of goods or services ordinarily for personal, domestic or household purpose, use or consumption. The claim must be filed within 3 years of the purchase.

All you have to do is to file Form 1 with TCCM and pay RM5.00 as filing fee. Form 1 is then to be served onto the product manufacturer or supplier and TCCM will set a hearing date. If the manufacturer or supplier seeks to defend the claim, they would have to file Form 2 and serve it on you as the claimant.

You may file the claim online at https://ttpm.kpdnhep.gov.my/portal/home. You don’t have to worry about engaging lawyers because parties are not permitted to be represented by their lawyers.

Any award granted by TCCM is final and binding on all parties and shall be deemed to be an order of a Magistrates’ Court and is enforceable. Any dissatisfied party may file an application for judicial review at the High Court for TCCM’s award to be reconsidered within 3 months of the award.

So, there you have it! The next time you are a victim of defective goods or unsatisfactory services, consider lodging your claim at TCCM for a quicker disposal of your claim.

IS BEING ANNOYING ONLINE LEGALLY HARMFUL TO YOU?Fahmi Reza is no stranger on social media and in Bukit Aman. He is curre...
20/06/2022

IS BEING ANNOYING ONLINE LEGALLY HARMFUL TO YOU?

Fahmi Reza is no stranger on social media and in Bukit Aman. He is currently being charged for his satirical artwork, yet again, under section 233(1)(a) of Communications and Multimedia Act (“section 233”) which he famously calls it as ‘Akta Sakit Hati’.

Section 233 has been notorious for criminalizing improper use of network facilities by knowingly transmitting contents which are obscene, indecent, false, menacing or offensive in character with intent to annoy, abuse, threaten or harass another person.

Those convicted under section 233 can be fined up to RM50,000.00 or sentenced to imprisonment not more than one year.

There has been a persistent call for section 233 to be amended – the overbroad definitions in the provision coupled with heavy punishments appears to discourage and curtail Malaysians’ freedom of expression.

Take the word “annoy” in section 233 - there is no legal interpretation of what this word really means. In Malay, it’s translated as ‘sakit hati’. This ambiguity has opened the term to selective interpretations hence selective enforcement of section 233. What one considers as annoying might be tolerable for some and vice versa. Further, it is not unreasonable to question the appropriateness and justice of imposing heavy punishments for an act of annoyance.

It seems to suggest that so long a person is annoyed by a post which he/she feels is addressed to him/her, a complaint can be made and the alleged wrongdoer can be charged for annoying him/her. In Fahmi’s case, it is interesting to note that the complainants have always been a person with a political standing. Go figure.

Having said the above, there are no doubts that lines must be drawn to combat social media abuse and cyberbullying, fulfilling the actual objective and spirit of section 233. However, it must not curtail one’s freedom of expression which is a fundamental right envisaged in the Federal Constitution. Otherwise, a culture of fear could develop where Malaysians are reluctant to share their opinions, make comments and criticize, for fear of being prosecuted under section 233.

An amendment to section 233 that provides greater clarity as to what is being criminalized and which genuinely appreciates the importance of freedom of expression will not only help to maintain vocal independence of all Malaysians but also regulate abuse of freedom of expression.

Well-meaning Malaysians could and should lobby lawmakers into amending section 233. Beware though that if the pressure to amend section 233 builds up, some of the lawmakers are going to find that very annoying!

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