Marcus Tan & Co

31/03/2025

Salam lebaran kepada semua! Di hari yang mulia ini, kami ingin mengucapkan Selamat Hari Raya Aidilfitri kepada keluarga, sahabat, dan semua kenalan. Semoga Syawal ini membawa kebahagiaan, kedamaian, dan keberkatan dalam hidup kita semua!

29/01/2025

✨ Happy Chinese New Year 2025! 🧧🐉

As we welcome the Year of the Wood Snake, may this year bring you strength, prosperity, and success in all your endeavors.

At Marcus Tan & Co, we remain committed to providing you with trustworthy legal guidance and unwavering support in the year ahead.

Wishing you and your loved ones abundant happiness, good health, and great fortune! Gong Xi Fa Cai! 🎊

30/05/2024

LEGAL UPDATE: The Proposed Residential Tenancy Act.

Did you know that Malaysia is one of the last countries in the common law jurisdiction that still lacks a Residential Tenancy Act?

What does this mean?

Well, traditionally, when you become a tenant, the terms of the lease or the tenancy agreement is the be all and end all. The agreement stipulates the rights, obligations and terms governing both parties, and barring any term amounting to an illegality, nothing else can govern the relationship between the tenant and the landlord.

As with all agreements and contracts, the Contracts Act 1950 becomes the authoritative piece of legislation. But because of the very nature of tenancy disputes, the following other acts also apply: Civil Law Act 1956 (for disagreements over payment), the Distress Act 1951 (for non-payment of rent and eviction), the Specific Relief Act 1950 (for court orders to evict a tenant or prevent that tenant access), and also a plethora of legal precedents, customs and conventions.

Now for years, lawyers and politicians in our country has been calling for Malaysia to keep up with other common jurisdictions such as the UK (which has the Landlord and Tenant Act 1985) or Singapore (which has a similar Residential Tenancies Act) by having our own Residential Tenancy Act.

This is needed to prevent the 3 main abuses by landlords (raising the rent very quickly and suddenly, refusing to release the security deposit, and terminating the tenancy without giving the tenant adequate notice) and the main 3 main breaches of terms by tenants (not paying the rent on time, renovating or damaging the house, and sub-letting out the house without landlord’s permission).

So when the Deputy Local Government Development Minister Akmal Nasrullah Mohd Nasir announced in March last year that a Residential Tenancy Act was in the works, many of us breathed a sigh of relief that there will soon be a cohesive body of law that will govern all rental property disputes and issues. Back then, he estimated that the Act will be tabled in Parliament next year. If this still stands, this means we will see the Act tabled as a Bill during the June-July or the October-November-December meetings of Parliament later this year.

So if you are a landlord or a tenant, you can expect the following things to change (based on the 2022 report by the Ministry of Housing and Local Government).

Read more here:

Did you know that Malaysia is one of the last countries in the common law jurisdiction that still lacks a Residential Tenancy Act? What does this mean? Well, traditionally, when you become a tenant, the terms of the lease or the tenancy agreement is the be all and end all. The agreement stipulates t...

22/05/2024

May you have a blessed and serene Wesak Day, from us at MTCO! Let us pray for peace and the end of all the sufferings in the world.

17/05/2024

LEGAL UPDATE:

Falling Trees: Whose Responsibility?

Last week we saw a spate of incidents where heavy winds and rain felled trees in the center of KL city. Most notably, on May 7th, a big tree fell down on 17 vehicles along Jalan Sultan Ismail, just outside the Concorde Hotel, during an afternoon thunderstorm.

With one dead, several injured and damages in the hundreds of thousands, many people are now wondering: who is liable?

A common narrative that is being echoed across forums and social media right now is that the tree that fell was growing on private property, and that since trees on private property are the responsibility of the landowners, who have to maintain and look after it, said landowners should be liable for the damage to the public caused by a tree that on their property falling down. Even DBKL issued a statement saying that “the landowner was responsible for maintaining the tree”.

Before we go any further, we would like to categorically confirm that this is in fact UNTRUE.

Read more here:

Last week we saw a spate of incidents where heavy winds and rain felled trees in the center of KL city. Most notably, on May 7th, a big tree fell down on 17 vehicles along Jalan Sultan Ismail, just outside the Concorde Hotel, during an afternoon thunderstorm. With one dead, several injured and damag...

09/05/2024

LEGAL UPDATE:

Working From Home? Malaysia Has Allowed for it, Even Before Singapore~

Last month, the news that Singaporean employers will now be able to grant certain workers the right to work from home. This was due to an introduction of a “formal process” for Singaporean employees to request for flexible work arrangements starting from December 2024, by virtue of the new guideline that resulted from the Tripartite Workgroup on Flexible Work Arrangements.

This has caused some Malaysians to complain why Malaysian law has not been amended to allow the same over here. Indeed, many are unaware that Malaysia has already allowed working from home since 2023...but under certain preconditions.

Our Employment Act 1955 saw several pivotal amendments in recent years. The latest spate of amendments, effective from 1st January 2023, saw the insertion of Section 60P and Section 60Q which allowed "flexible working arrangements".

This means that employees can request for not only working from home and/or other alternative locations, but also flexible work hours and flexible days of work.

According to the new sections, in order to apply for flexible working arrangements, the employee must first submit a request that is in written form, and the employer must then either approve or refuse in writing within 60 days, giving reasons if the decision was to refuse.

Of course, making such a request is no guarantee that you will be allowed to work from home. But in the event of a rejection, the employer must at least give valid reasons for doing so.

Turns out the Malaysian government beat Singapore to it.

08/05/2024

LEGAL UPDATE:

Lawyers Take Notice: When Drafting Pleadings for Defamation Lawsuits, Always Have Translation of Defamatory Words in the National Language

Last week, the KL High Court dismissed a defamation suit filed by former attorney general Tan Sri Mohamed Apandi Ali’s special officer, Mabel Sheela Mutthiah against the Sarawak Report's editor Clare Rewcastle-Brown. The dismissal was due to a technicality: the Plaintiff, Mabel, had failed to translate the alleged defamatory articles into Bahasa Melayu in her pleadings.

In his decision, Judicial commissioner Datuk Raja Ahmad Mohzanuddin Shah Raja Mohzan said that he was of the opinion that "The requirement for complete pleadings in Bahasa Melayu is tritely attributed to the language’s supremacy as a national language. In this regard, the relevant provisions are enshrined in Article 152 of the Federal Constitution as well as Section 8 of the National Language Act 1963/67 and Order 92 Rule 1 of the Rules of Court 2012,” he said.

Some background facts first: in 2015, the Sarawak Report ran an article alleging that the Plaintiff "connived" with the AG's Office to prevent the family of the late Deputy Public Prosecutor Datuk Anthony Kevin Morais from exercising their rights to demand for a second post-mortem.

When the Plaintiff sued the Sarawak Report defamation, they filed their pleadings with a verbatim reproduction of the defamatory words in the statement of claim, as is the usual practice with defamatory matters. However, the High Court has since pronounced that the failure to attach a certified translation of the defamatory words in the national language was fatal.

The High Court made reference to two Court of Appeal rulings, to which it is bound. Although the written judgment is not out yet, we are almost certain that one of these Court of Appeal rulings is Rekha d/o Munisamy v Ortus Expert White Sdn Bhd & Anor [2021] 5 MLJ 836.

In Rekha, the Court of Appeal found that it is not enough to rely on Order 92 Rule 1(4)(b) of the Rules of Court to argue that no Malay translation is needed for the defamatory articles.

Order 92 Rule 1(4)(b) of the Rules of Court states as follows: "…any document in the English language may be used as an exhibit, with or without a translation thereof in the national language".

Instead, the Court of Appeal held that Order 92 Rule 1(4)(b) only applies to exhibits. "It does not at all refer to pleadings. In the ‘penyataan tuntutan terpinda’ the plaintiffs did not translate the alleged defamatory statements into Bahasa Melayu. Considering the statutory provisions and case law authorities alluded to earlier, this would be fatal against the plaintiffs".

The Court of Appeal then referred to Lim Kit Siang v Datuk Dr Ling Liong S*k & Ors [1997] 5 MLJ 523 where the High Court also reiterated that "The authorities are manifest in their approach that it is fundamental that the exact words as uttered (by the first defendant in this case) must be reproduced in the original language with a certified translation in the language of the court, in the absence of which the claim will fail'. When read with Article 152 of the Federal Constitution, Section 8 of the National Language Acts, 1963/1967 (Act 32) and Section 3 of the Interpretation Acts 1948 and 1967 (Act 388), it is clear that the "language of the court" alluded to here is in fact Bahasa Malaysia, being the national language.

The consequences of this is that a gray area in Defamation Law in Malaysia has been lifted: prior to this, some judges have accepted pleadings where the defamatory words are translated into English. The decision in Rekha confirms that the reproduction of defamatory words in a defamation lawsuit isn't a mere exhibit like a piece of evidence, but an actual and inseparable part of the pleadings. Therefore, it must be filed together with a certified translation of the defamatory words in the national language.

To merely describe the substance, purpose or effect of the defamatory words is not sufficient; and failure to tender the national language translation is fatal.

Lawyers Take Notice: When Drafting Pleadings for Defamation Lawsuits, Always Have Translation of Defamatory Words in the National Language Last week, the KL High Court dismissed a defamation suit filed by former attorney general Tan Sri Mohamed Apandi Ali’s special officer, Mabel Sheela Mutthiah a...

02/05/2024

LEGAL UPDATE:

Liability of Hospitals in Medical Negligence Cases - Should the Doctor or the Hospital Pay Up?

Looking at the Federal Court's decision in Siow Ching Yee (Suing Through His Wife and Litigation Representative, Chau Wai Kin) v Columbia Asia Sdn Bhd [2024] 3 MLJ 66

As Malaysians become more aware of their legal rights, medical negligence cases have become more prevalent in court. These are lawsuits stemming from a mistake of either the doctor in making a wrong diagnosis, giving out unsuitable medication, giving bad medical advice in error, to the ultimate nightmare of making mistakes during surgery.

Of course, the issue for the courts to determine is if there had actually been medical negligence in the first place. This would mean looking into if the doctor's actions and conduct fall below the standard of a competent medical professional, among other tests (as per the Bolam Test, and Zulhasnimar Hasan Basri v Dr Kuppu Velumani P).

But once it has been determined that medical negligence exists, the next question would be whether the doctor himself is liable, or would the hospital be instead?

When a doctor commits a mistake that results in medical negligence, the previous position would be for the hospital to rely on the argument that the they cannot possible be held vicariously liable for the doctor's negligence, as doctors were independent contractors rather than employees of the hospital. Hospitals would claim that they merely provided the facilities and the premises, which the doctors would then use as contractors.

But in the recent case of Siow Ching Yee (suing through his wife and litigation representative, Chau Wai Kin) v Columbia Asia Sdn Bhd [2024] 3 MLJ 66 changes this once and for all. In this case, the Federal Court was asked to determine whether a private hospital can be made liable for a tort committed by an independent contractor it appointed, if it was found to have a non-delegable duty of care to the patient.

At the High Court stage, claims against the ENT doctor attending was dismissed entirely. Whereas the consultant anaesthetist was deemed to have been too slow in securing the patient's airway during an emergency, which caused hypoxia and resulted in the patient suffering permanent mental and physical disabilities. However, it was held that the hospital was not vicariously liable for the negligence of the consultant anaesthetist, on the basis that the consultant anaesthetist was merely an independent contractor.

At the Court of Appeal, the appeal was once again dismissed, and the issue of vicarious liability was abandoned at this stage.

So the Federal Court was now faced with the question of whether or not the hospital had a non-delegable duty of care to the patient. The Federal Court then answered in the affirmative.

In a 4-1 majority decision, the court had found that the duties of the hospital can be determined via the Private Healthcare Facilities & Services Act 1998 and the Private Healthcare Facilities & Services (Private Hospitals and Other Private Healthcare Facilities) Regulations 2006, specially via Sections 2, 31, 38 and 78 of the Act. By applying the Act and Regulation together, hospitals are now deemed to have a non-delegable and personal duty of care to their patients. In the words of the Court, "...no longer can private hospitals say that they were mere providers of premises, utilities, facilities or backup services for treatment and care of patients. The law provided that they were themselves providers of such care and treatment in which case they owed a non-delegable and personal duty of care to all who knocked on their door to seek treatment and care".

Given that they are deemed that private hospitals are deemed to have a non-delegable duty of care to the patients, the Court then applied the principles in Woodland v Swimming Teachers Association & Others [2014] AC 537 (Woodland) as adopted by the Federal Court in its decision in Dr Kok Choong Seng & Anor v Soo Cheng Lin and another appeal [2018] 1 MLJ 685, in determining when would non-delegable duties apply to the present case. The test in Woodland requires the fulfilment of the following 5 features:

a. the claimant is especially vulnerable and dependent on the defendant’s protection from the risk of injury. Such claimants include, but are not limited to, patients and children;

b. there is an antecedent relationship between the claimant and the defendant, from which to impute an assumption of responsibility on the defendant to protect the claimant from harm. The relationship places the claimant in the defendant’s actual custody or care;

c. the claimant has no control over how the defendant chooses to perform the duty assumed, whether personally or otherwise;

d. the defendant has delegated to a third party a function which is an integral part of its positive duty towards the claimant, and also the custody and control incidental to that function; and

e. the third party was negligent in the performance of the very function assumed by the defendant and delegated to him.

The Court found all 5 features to be present in the current case. Thus, the hospital was liable for the negligence of the consultant anaesthetist.

The consequences of this decision is big. In the near future, we might see hospitals and medical healthcase facilities resort to "defensive mecidine" which is the general term for healthcare facilities operating with an S.O.P. that seeks to minimize the possibility of a lawsuit rather than optimising patient care. However, seen from another angle, it could also mean that healthcare facilities are now held up to a higher standard of care, and will ensure that their patients receive only the best treatment possible without delay.

As for the average consumer, we should be more aware of our rights. Hospitals can no longer hide behind the excuse that doctors are mere independent contractors. If one suspects being on the receiving end of medical negligence, be it from a private or public hospital or even from a clinic, do not hesitate to seek out legal assistance at once.

Legal Update: Siow Ching Yee (Suing Through His Wife and Litigation Representative, Chau Wai Kin) v Columbia Asia Sdn Bhd [2024] 3 MLJ 66 As Malaysians become more aware of their legal rights, medical negligence cases have become more prevalent in court. These are lawsuits stemming from a mistake of...

02/05/2024

~Malaysian Government introduces KL20 Policies for Foreign VCs~

The KL20 Summit 2024 was launched by Prime Minister Datuk Seri Anwar Ibrahim in Kuala Lumpur, where he unveiled the KL20 Action Paper aimed at attracting global talent and investors through innovative initiatives and incentives to accelerate Malaysia’s transition to a high-income economy. The “Golden Pass” program is one of the “Unicorn Golden Pass” and the “VC Golden Pass” to attract unicorn startups and renowned venture capital firms to invest and develop in Malaysia.

The Unicorn Golden Pass is designed specifically for founders or entrepreneurs of global unicorn startups. This pass will provide exempted fees on employment passes for senior management, subsidies on rent, preferential corporate tax rates, and other special benefits to reduce startup costs and enhance competitiveness. Additionally, the Unicorn Golden Pass includes relocation services and concierge services to support entrepreneurs comprehensively.

The VC Golden Pass targets globally renowned venture capital companies and investors. It offers Limited Partners (LP) financing opportunities, office space subsidies, and visa fee exemptions for senior leaders, aiming to attract venture capital firms to establish a presence in Malaysia and promote investment and innovation.

In addition to the Golden Pass programs, the Malaysian government launched the “Innovation Pass” scheme to provide multi-tiered employment visa schemes for attracting high-skilled talent. This scheme caters to different categories of talent including founders/entrepreneurs, senior management, highly skilled talent, and general talent, offering varying work rights and durations to meet diverse needs of these talent groups.

1. Founders / Entrepreneurs:
-Targeted at first-time or experienced founders establishing businesses.
-Visa validity period of 5 years, granting work rights to both the holder and their spouse.
-Visa is independent of employment, providing high flexibility.
-A maximum of 5 visas can be granted per founding team, supporting team development and business expansion.

2. Senior Management:
-Targeted at C-suite or Head of Department candidates in the technology or venture capital sectors.
-Visa validity period of 5 years, granting work rights to both the holder and their spouse.
-Visa is independent of employment, offering a stable work environment and living conditions for management personnel.

3.Highly Skilled Talent:
-Targeted at experienced individuals possessing scarce and highly in-demand skills.
-Visa validity period of 5 years, granting work rights to the holder.
-Provides a grace period of 180 days after job loss, offering security and career support for talented individuals.

4.General Talent:
-Targeted at technology or venture capital talent required for daily operations.
-Visa validity period of 2 years, granting work rights to the holder.
-Provides a grace period of 90 days after job loss, facilitating flexible career development opportunities for general talent.

Furthermore, Malaysia introduced a two-week Spouse Program to help settle and establish meaningful careers for talent’s spouses in Malaysia. This program offers a range of services including classes on Malaysian lifestyle, culture, and workplace norms, networking sessions, 1-on-1 career consultations with experts, as well as social gatherings and life services like childcare and language courses to facilitate better integration into Malaysian life and society.

Under the ASEAN Investment initiative, key institutions like Khazanah Nasional, Kumpulan Wang Persaraan (KWAP), and Blue Chip Venture Capital (BCVC) have invested RM3 billion in Southeast Asia and Malaysia’s ecosystems. Khazanah Nasional is also launching a “National Fund-of-Fund” with an initial allocation of RM1 billion to invest in innovative high-growth Malaysian enterprises. These efforts aim to attract venture capital firms to establish offices and new funds in Kuala Lumpur, with 12 international companies managing assets worth billions already involved, seeking to discover and nurture excellent Malaysian startups for global success.

The Kuala Lumpur City Hall (DBKL) and the Hangzhou Municipal Government signed a Letter of Intent for Startup City Connect, aiming to strengthen connections and cooperation between the startup cities of Kuala Lumpur and Hangzhou, the People’s Republic of China. Focused on tech innovation, this collaboration aims to facilitate capital, talent, and market exchanges, providing broader development opportunities for entrepreneurs and investors from both cities.

Additionally, the Malaysian government’s policies include promoting the development of the semiconductor and information technology industries. With support from the Selangor State Government and Selangor Information Technology & Digital Economy Corporation (SIDEC), the government plans to establish the largest integrated circuit design park in Southeast Asia in Puchong, Selangor, fostering technological innovation and investment to benefit Malaysia and the wider Southeast Asia region.

Malaysia’s strengths stem from its strategic geographic location linking key digital markets in Southeast Asia, East Asia, India, and the Middle East, its diverse population, robust digital infrastructure, and cost-effectiveness. These elements position Malaysia as an ideal hub for global business and investment, providing ample room for development and fostering collaboration opportunities for both talent and investors.

In conclusion, Malaysia’s government policies and plans aim to attract global talent and investors, drive economic diversification and innovation, and accelerate Malaysia’s emergence as a business center and innovation hub in Southeast Asia. Additionally, Malaysia has established a Single Window https://www.mystartup.gov.my as a comprehensive service center for information and applications related to various programs, offering direct assistance with business establishment, operations, and growth initiatives.

The KL20 Summit 2024 was launched by Prime Minister Datuk Seri Anwar Ibrahim in Kuala Lumpur, where he unveiled the KL20 Action Paper aimed at attracting global talent and investors through innovative initiatives and incentives to accelerate Malaysia’s transition to a high-income economy. The “G...

25/04/2024

~马来西亚瞄准区域新经济，𝐊𝐋𝟐𝟎峰会推创投基地新政策~

近日，马来西亚首相安华在吉隆坡举办的“吉隆坡20“（KL20）峰会上发布了《吉隆坡20行动文件》(KL20 Action Paper)旨在吸引全球人才和投资者的创新举措和优惠政策，以加速马来西亚经济向高收入国家结构转型的努力。其中包括推出“黄金通行证“（Golden Pass）计划，涵盖“独角兽黄金通行证”（Unicorn Golden Pass）和“风险投资黄金通行证”（VC Golden Pass），以吸引独角兽初创企业和全球知名的风险投资公司来马来西亚投资和发展。

独角兽黄金通行证是专门为全球独角兽初创企业的创始人或企业家设计的。该通行证将提供房租补贴、企业利润税率优惠等特殊待遇，旨在降低创业成本并提升企业竞争力。此外，独角兽黄金通行证还包括搬迁服务和后台注册初创礼宾服务，为创业者提供全方位的支持和帮助。

风险投资黄金通行证是为全球知名的风险投资公司和投资者量身定制的。风险投资黄金通行证包括有限合伙人（Limited Partners）融资机会、办公空间补贴、高级领导者的签证豁免等特殊待遇，旨在吸引风投公司落户马来西亚，促进投资和创新。

除了通行证计划外，马来西亚政府还推出了“创新准证”（Innovation Pass）计划，为吸引高技能人才提供多层次的雇佣准证计划。该计划针对不同类别的人才，如创始人、高级管理人员、高技能人才和一般人才，提供了不同的工作权利和时效，满足不同人才群体的需求。创新准证针对不同类别的人才制定了特定的政策，以吸引和留住人才，推动马来西亚经济的多样化和创新发展。

1.创始人 / 创业者：
-针对首次或有经验的创始人正在创办业务。
-时效为5年，持有者本人及配偶均享有工作权利。
-签证与就业无关，灵活性较高。
-创始团队最多可获得5个签证，支持团队发展和业务扩展。

2.高级管理人员：
-针对科技或风险投资部门的C级别或部门负责人候选人。
-时效为5年，持有者本人及配偶均享有工作权利。
-签证与就业无关，为管理人员提供稳定的工作环境和生活条件。

3.高技能人才：
-针对具备稀缺且高需求技能的经验丰富人才。
-时效为5年，持有者本人享有工作权利。
-提供就业丧失后180天的宽限期，为人才提供安全感和职业保障。

4.一般人才：
-针对日常运营所需的科技或风险投资人才。
-时效为2年，持有者本人享有工作权利。
-提供就业丧失后90天的宽限期，为一般人才提供灵活的职业发展机会。

此外，马来西亚还推出了为期两周的配偶计划，旨在帮助人才的配偶在马来西亚安顿下来并建立有意义的职业生涯。该计划提供一系列服务，包括介绍马来西亚的生活方式、文化和职场规范的课程，与其他外籍人士和项目校友分享经验，以及与外部专家进行一对一职业咨询等。此外，配套还涵盖社交交流会和生活服务，例如儿童看护和语言课程，旨在帮助配偶更好地融入马来西亚的生活和社会。这些举措为人才及其家庭提供了全面的支持，助力他们在马来西亚开展成功的职业生涯和生活.

在马来西亚东盟投资倡议的支持下，国库控股（Khazanah），公务员退休基金局（KWAP），兰芯创投（BCVC）等重要机构已在东南亚和马来西亚的生态系统投资了30亿令吉。国库控股还将推出“国家基金组合”，初始拨款10亿令吉，以投资于创新型高增长的马来西亚企业。这些举措旨在吸引风险投资公司在吉隆坡设立办事处和新基金，目前已有12家管理的资产规模超过数十亿美元的国际企业进驻，他们拥有辉煌的投资记录，旨在发现和培育优秀的马来西亚初创企业，使其在全球取得成功。

吉隆坡市政厅与杭州市人民政府签署了“科技创新双城”（Startup City Connect）意向书，旨在加强吉隆坡和杭州两座初创城市之间的联系与合作。这一合作将聚焦于科技创新领域，旨在促进资本、人才和市场的互联互通，为企业家和投资者提供更广阔的发展空间。此举标志着两国在初创企业领域开展的首次城市间合作，将为双方创业者和投资者带来更多合作机会和发展前景。

同时，马来西亚政府的政策和计划也包括推动半导体和信息技术行业的发展。在雪兰莪州政府及雪兰莪州资讯科技及数字经纪机构SIDEC）的支持下，政府与国际领先的半导体公司计划在雪兰莪州蒲种成立东南亚最大的集成电路设计园区（IC设计园区），促进科技创新和投资。这将为马来西亚乃至整个东南亚地区带来重要的经济和技术效益，推动科技产业生态系统的发展。

马来西亚的优势在于其地理位置与东南亚、东亚、印度和中东等世界主要数字市场紧密相连，拥有多样化的人口结构、优质的数字基础设施和成本优势。这些优势使马来西亚成为全球商业和投资的热门目的地，为人才和投资者提供了广阔的发展空间和合作机会。

综上所述，马来西亚政府的政策和计划旨在吸引全球人才和投资者，推动经济多元化和创新发展，加速马来西亚成为东南亚商业中心和创新枢纽。同时，马来西亚还建立了单一窗口系统(Single Window)[ 单一窗口系统的网址为]，作为各类计划信息和申请的综合服务中心，为企业和投资者提供便捷的服务。

马来西亚首相安华在吉隆坡举办的“吉隆坡20“（KL20）峰会上发布了《吉隆坡20行动文件》(KL20 Action Paper)，旨在加速马来西亚经济向高收入国家结构转型。

近日，马来西亚首相安华在吉隆坡举办的“吉隆坡20“（KL20）峰会上发布了《吉隆坡20行动文件》(KL20 Action Paper)旨在吸引全球人才和投资者的创新举措和优惠政策，以加速马来西亚经济向高收入国家结构转型的努力。其中包括推...

25/04/2024

LEGAL UPDATE:

Sunway Putra Hotel Drowning Case: Estopped by Proposing a Settlement.

Earlier this month, we learned of the Court of Appeal's decision in a lawsuit brought by the purported parents and dependents of a 22 year old Chinese national who drowned in Sunway Putra Hotel's pool.

The Plaintiffs (being the purported parents of the Deceased) then filed an action in the Sessions Court against Sunway Putra Hotel Sdn Bhd seeking damages based on the torts of negligence and occupier's liability.

However, both the Sessions Court and the High Court dismissed their claim, ruling that the Plaintiffs were unable to prove they were indeed the parents of the Deceased, due to a technicality whereby documents issued by the government of the People's Republic of China showing their relationship to the Deceased were rejected because of non-compliance with Section 78(1)(f) of the Evidence Act 1950. They were therefore pronounced to have no locus standi to commence this Action

But at the Court of Appeal, Justice Datuk Wong Kian Kheong found that the Sessions and High Court had made legal and factual errors in dismissing the plaintiff's claims.

It has already been established that the hotel had breached its duty of care to the Deceased, and that its breach of duty had directly caused the death of the Deceased. This was not disputed by both parties.

And the trial judge's finding that the Defendant could rely on the defence of volenti non fit injuria (that the Deceased had voluntarily incurred risk), solely based on the fact that a pool warning signboard stating that no lifeguard was on duty and that the pool could only be used by a person at his own risk, was wrongly applied. Volenti non fit injuria can only be invoked by if the victim of a tort "had voluntarily agreed to assume the risk of harm... which may be caused by the commission of a tort". In the case at hand, the Deceased's consent cannot be proven on a balance of probabilities.

But the question of the Plaintiffs' identity remains. The Court of Appeal ruled that since the hotel's management had not disputed the Plaintiffs being the parents of the Deceased when they came to claim the Deceased's body; and since the hotel's General Manager had invited the Plaintiffs to dinner, during which he offered to compensate the Plaintiffs for the death of the Deceased on the condition that the Plaintiffs keep this matter quiet and not disclose the incident to the press and social media; the hotel is therefore estopped from denying that the Plaintiffs are the Deceased’s parents.

This is a rare case where the Court of Appeal found that the trial judge had made an error of fact. Justice Wong made reference to the Federal Court's decision in Ng Hoo Kui & Anor v Wendy Tan Lee Peng (administratrix for the estate of Tan Ewe Kwang, deceased) & Ors [2020] 12 MLJ 67, when the Federal Court in that case overturned the decision of the trial judge by emplloying the ‘plainly wrong’ test: that a finding of fact ought not to be disturbed, so long is it not be repugnant to common sense.

Justice Wong had found that the hotel's compensation proposal was an admission of the hotel's negligence, as well as the reason the hotel was estopped from denying the plaintiffs, saying that "If they were not the parents, the hotel would not have invited them for dinner, and (the hotel's) proposal would not have been made".

How should this affect business decisions you make in the future?

The principle of equitable estoppel is well established in Malaysia, the Federal Court having adopted the American case of Dickerson v Colgrove (1880) 100 US 578 multiple times, wherein Swayne J deliberated that:

"The estoppel here relied upon is known as an equitable estoppel, or estoppel in pais....he who, by his language or conduct, leads another to do what he would not otherwise have done, shall not subject such person to loss or injury by disappointing the expectations upon which he acted. Such a change of position is sternly forbidden. It involves fraud and falsehood".

In conclusion, extensive fact-checks, careful research and background checks are required before proposing compensation or settlement to someone. Otherwise, that very offer itself may constitute an admission of negligence and liability, as well as estopping one from changing their position in future.

Sunway Putra Hotel Drowning Case: Estopped by Proposing a Settlement? Earlier this month, we learned of the Court of Appeal’s decision in a lawsuit brought by the purported parents and dependents of a 22 year old Chinese national who drowned in Sunway Putra Hotel’s pool. The Plaintiffs (being th...