Where Goods Perish In Transit

Loan Agreement Cum Assignment (15 marks)

Discuss the legal position of loan agreements cum assignments, and any problems which may arise in relation thereto, with reference to the relevant case law.

What is LACA?
LACA usually arises where there is no separate individual title yet, and a financial institution cannot issue a charge, so it gives borrower a loan on the execution of LACA.

Issues:

#1 WHETHER ABSOLUTE OR CHARGE ONLY?

S4(3) Civil Law Act states that for a loan to constitute LACA:                                                               

• the assignment must be absolute 

Nouvau Mont Dor (M) Sdn Bhd v Faber Development Sdn Bhd
-          whether or not an agreement is an absolute one, not purporting to be by way of charge only, within the meaning of s 4(3) of the CLA
-          gather from 4 corners of the instrument itself

• the assignment must be in writing & signed by the assignor
• assignee must give notice to the debtor
• not purporting by the way of charge

If by way of charge, assignor qualified to sue housing developer.
But if absolute assignment, problematic for the buyer if developer defaulted.

#2 WHETHER ASSIGNOR HAS RIGHTS TO SUE?

Homebuyer buys property from developer, no individual separate title yet. Bank would want them to execute deed of assignment. Assign rights of purchaser under SPA to the bank. Equitable interest, but is contractual right. Because no separate individual title, purchaser cannot create a charge in favour of bank.

Although the purchaser signed SPA, rights invested in bank. Confer power of attorney on the lender so that lender given power to deal with property on your behalf, able to sell property on default of repayment. That’s why issue arise when default on housing developer, does purchaser still have locus standi to bring case against developer without concurrence of bank?

Does assignor have right to sue developer in case of developer late delivery/faulty workmanship?

• If absolute assignment under s4(3), only the assignee can sue the developer/debtor, not the assignor (cos already assigned all his rights and has no more right to sue).
• Assignor has to persuade the assignee to personally sue the developer or sue in the name of the assignor. In most cases, the assignee bank will be reluctant to do so and it is always a time-consuming process to get the assignee to agree to this course of action, much to the advantage of the developer
• However, Look at Housing Developer (Control and Licensing) Amendment Act - purchaser has right to sue developer if default unless in assignment expressly stated need to get consent of assignee.
• FC in Nouvau Mont Dor (M) Sdn Bhd v Faber Development Sdn Bhd [1984] 2 MLJ 268 and Hipparion (M) Sdn Bhd v Chung Khiaw Bank Ltd [1989] 2 MLJ 149 held: clause in question is absolute assignment clause under s 4(3) CLA, notwithstanding would later be converted into a legal charge under the National Land Code 1965 (“NLC”) upon issuance of the individual title.
• unfair to the assignor if the assignee refuses to sue the developer
• especially when thousands of apartment and condominium units without individual strata titles were sold in Malaysia, and loans were secured by LACA similar to the one in Nouvau Mont Dor
• takes years before strata titles are issued when the assignments are then converted into a legal charge under the NLC which would then confer the assignor now a chargor the right to have direct recourse against the developer.

What if assignor default in loan repayment?

• absolute assignee bank can dispose of the property by way of assignment to a third party with notice to the developer and without the concurrence of the assignor borrower – assignor rights not guaranteed

What about assignment given by company?

• Requires registration as a charge under s 108(3)(e) of the Companies Act 1965 because it is an equitable mortgage (see Chuah Eng Khong v Malayan Banking Berhad [1998] 3 MLJ 97); otherwise the charge will be void against the liquidator and any creditor of the assignor. (s 108(1) Companies Act 1965.)

#3 WHETHER SHOULD BE TREATED AS EQUITABLE CHARGE / EQUITABLE MORTGAGE?

Should not be treated as equitable charge. Difference lies in document of title.

FC: there was title in Arunasalam Chetty (equitable charge), in Chuah Eng Kong & Phileo - no title - mortgage - no legal estate - cannot have said to have acquired equitable charge, where there is title, and it is possible to create a charge.

Chuah Eng Kong v Malayan Banking - LACA under which a borrower assigns absolutely his rights, title and interest under SPA is equitable mortgage. Different from an equitable charge where IDT has already been deposited with the lender.

Malayan Banking v Zahari Ahmad - NLC does not prohibit the creation of equitable charges and based on a body of authorities, Malaysia land law recognize equitable charges. In this case, the loan agreement and the deed of assignment between the parties created an equitable charge both in form and substance; the bank was an equitable charge as the IDT was yet to be issued.

FINALLY。。。

Phileo Allied Bank v Bupinder Singh (FC) - described as equitable mortgage

Court should give effect to contract between parties, in relation to whether lender needs to get an order from court to sell the property. By POA, assignee has been given the power to handle the property, without need to get an order from court – can sell by private treaty.

LACA not possible to create charge yet cos no issuance of IDT, so should be treated as equitable mortgage, bank only acquire equitable interest, no title.

In conclusion, the latest position of LACA under the Malaysian land law is being recognised as an equitable mortgage but ONLY enforceable contractually. Under an absolute assignment, the rights, title and interest of the assignor in respect of the property under the sale and purchase agreement are transferred to the assignee.

Thus, the assignee is entitled to do anything once notice of default and notice of remedy has been issued to the assignor, including selling the property without obtaining a judicial order. However, by not requiring the sale to be judicially endorsed, the interests of the borrower would be left unprotected in the event of a default as the courts can no longer protect the borrower from any wrongful sale of the land.

Criminal Law II Answering Guidelines

Disclaimer: For sharing with juniors. My foolproof answering guideline for criminal law. No guarantees of A, for that you'll have to work harder than study this 10 pages worth of notes, but I think you'll pass with this. 

KIDNAPPING

S363 - <7 years +fine

S361 – kidnap from lawful guardianship

Elements:

#1 Age of kid – Jamaluddin Hashim – PP must est prima facie evidence of age

Here boy 14, girl 16

#2 Lawful guardian – DPP v Abdul Rahman - refer s5 GIA – both parents

#3 AR – takes/entice minor out of keeping of lawful guardian

#Dalchand – no need force, taking without express consent of guardian

#Neelakandan – love can be blandishment that forms enticement

#Chajju Ram – distance of taking does not matter

*Generally guardianship of Muslim with dad, though boy <7y/o or girl before akil baligh custody with mom

*Guardianship of Infants Act already adopted by all States, so can apply to Muslim.

*Exp s361 guardian incl person lawfully entrusted with care and custody #Syed Abu Tahir (can be mom)

* just have to prove that the person from whom the child was removed was "entrusted with the care and custody of that child".

*Exception only for illegitimate child

#4 MR – intention (to do #3 without consent)

#Jaganada Rao v Kamaraju – Df was consented by the girl’s father to taking care of her while she stays in sister’s house, but it does not extend to marrying her off

See whether aggravated:

a)      S365 – kidnap with intent to secretly and wrongfully confine

AR – Kidnap

MR – intention to secretly and wrongfully confine

#Akbar Ali v Emperor – Df argued not ‘secretly’ cos victim’s cousins knew of her location

b)     S366 – compel marriage

#Wahab Osman v PP

c)       S368 – wrongfully concealing or keeping in confinement

AR - Wrongfully conceal

MR – Knowledge

#Emperor v Zamin – Df must know of the kidnapping

MURDER

Death: Wawan Sarego v PP – victim already died, death caused by Df

No break in causation: R v Smith – no intervening factors

S300(a)

AR – act by accused that caused death

MR - intention to cause death

#Tan Buck Tee – 5 substantial wounds to heart and liver caused by heavy sharp weapon shows intention

#Khairul Anwar Zakaria – stab wounds to heart and lungs can cause instant death

#Tan Chew Bok – stab mouth with kitchen knife passing through back of head – intention to kill

#Tham Kai Yau – death most probable result

300(c)

AR – must have bodily harm

#Virsa Singh – must present, caused by Df

MR – intention cause bodily harm

#Virsa Singh – not accidental

#Tan Hoi Hung – conscious forming in mind action to bring intended result

#Brij Bhukan – can be assessed cumulatively

Sufficient in ordinary nature to cause death (objective test)

#Virsa Singh – based on medical opinion

Exception to murder

Exception 1:

-          Grave and sudden provocation – Sameer Klom Klom

-          Caused by accused – Ikau Anak Mail

-          Deprived of self-control (reasonable man) Ghulam Mustafa Ghano

-          Act done while lose control (cooling off? Selvaraju Mudaliar 20 hours. Proportionate?)

Take into acc r/s – if husband and wife – Mat Sawi v PP

Exception 2:

-          Not sought by Df – Wong Kim Poh failed as he was the one who stabbed the victim

-          Harm towards Df self or ppt – wong teck choy – victim 14 feet away from Df, no weapon – no threat to justify Df shooting victim with pistol

-          No other reasonable way – Chung Chek Chen – Df said victim threaten to hit him if meet again, he go buy 2 knives to protect. Then victim attacked him, he stabbed victim to death. Threat not enough to raise threat towards Df’s life or body.

-          Necessity to cause death – Wong Teck Choy – shooting someone who uttered vulgar words more than necessary

-          In good faith s52

Exception 3:

-          In good faith

-          Lawful and necessary to discharge duty as public servant – Dakhi Singh – Df police constable, tried to capture thief who ran away, shot thief but accidentally hit victim.

-          Without ill-will towards victim

Exception 4:

-          Sudden fight - ramasamy sebastian

-          Without premeditation – awang radhuan awang bol (fail)

-          In heat of passion – hanie hamid – fight in burger stall – no opportunity to cool off

-          No undue advantage – mohd kunjo (got undue advantage cos take exhaust pipe beat victim’s head, victim fall to ground continue beating until he died)

INFANTICIDE

S309B 20 twenty years, fine

S309A

-          Df – birth mother, victim – baby, Infanticide Act UK – within one year old

-          Murder

-          At the time of omission not fully recovered from effect of giving birth #Zamihiyah v PP

-          Balance of mind disturbed - puerperal psychosis

DEATH BY NEGLIGENCE

S304A – 2 years or fine or both

MR – act of Df which caused death

AR – rash or negligent

#Sudalaimuthu

#Mahfar Sairan

S41(1) RTA

2<X<10 years jail

5K – 20K

AR – driving motor vehicle

MR – reckless / speed / manner in which whole circumstances danger to public #Zulkifli Omar

RAPE

Df – male, Victim – woman #Corbett v Corbett

AR – Insert penis into labia – must know for sure is the Df’s penis -  PP v Nasrul Annuar (fail to prove)

MR – s375(b) without consent

#Teo Eng Chan – s90

 #Augustine Foong – lack of resistance not consent, difference between consent and submission

Result of crime – sex

S375A – PP v N

S377A - #Anwar Ibrahim v PP – sodomy, MR presumed #Sukma Darmawan

S377D – outrage decency #Ng Huat – no clear limit to define

#Sukma Darmawan – for allowing Anwar to insert penis into his anus, MR presumed

ROBBERY

S392 < 14 yrs + fine/whip

S390(1) in all robbery is theft/extortion

S390(2) theft is robbery – prove theft!

Must voluntarily cause or attempt to cause death / hurt / wrongful restraint / fear of instant death / instant hurt / instant wrongful restraint (illus A)

#Chen Chong – 3 ppl overtake lorry, block passage, pointed gun at victim ask him to get out, later drive lorry away – put in fear of hurt

In committing theft/carry away ppt: #Kalio Kelio – if hurt cause to run away not robbery

      THEFT

S379 - < 7 years / fine / both (if prove robbery no need this)

S378 elements

(i)                  Moveable ppt – s22 – R v Lim Soon Gong

(ii)                Take out of possession of any person

§  Prove possession, even if not in owner’s own possession can still be regarded as his possession if wife, clerk, servant s27

§  No need to take out of possession permanently

#Pyare Lal Bhargava – officer in civil service, took file containing info from office, brought home. Allowed someone else to take few papers from file and replaced with other papers, then bring back to office. Court held guilty for theft even though only take out of possession temporarily.

(iii)               Without consent – s90

(iv)              AR – move property in order to such taking

·         Exp 2-4, illus (a)-(c)

(v)                MR – intention to take dishonestly

S24, 23, KN Mehra – Df drove plane without permission, for own use, wrongful loss to owner of plane. Talha – no dishonesty if Df is beneficial owner as is his right.

See if can aggravate form (if robbery no need this)

s379A theft of motor vehicle

s380 theft in dwelling house

·         building - #Gurdit Singh

·         vessel (s48 anything in conveyance by water) - #Gurusamy

·         tent

s381 theft by clerk or servant of property in possession of master

s382 theft after preparation made for causing death or hurt in order to commit theft

S390(3) extortion is robbery – prove extortion!

Where Df caused fear of instant death / instant hurt / instant wrongful restraint to victim or someone else, induces person to deliver thing extorted (illus c)

#Subramaniam – Df put knife at victim’s stomach before taking ring, bangle and necklace. Occurred at night. Court held liable for robbery.

      EXTORTION

S384 – 10 years / fine / whipping / any two combo

S383

#1 AR: Put in fear of injury to victim or any other person

Illus a – to victim

Illus b – to some other person

Injury – s44 harm illegally caused  - body mind reputation property

Illegal – s43 anything which is an offence, or prohibited by law

LEGAL:

#Vincent Lee – threaten to arrest a victim who was using drugs. Df was police. Threat to arrest made in carrying out legal duty.

ILLEGAL:

 #Ling Kai Huat – Df police, threaten victim to give him amount of $ for not taking action towards victim who operated business w/o license.

#2 MR: Intention

Threat made must compel victim to deliver property to Df

Property must be valuable security (s30 – legal right created)

Must be induced dishonestly – must prove Df intend to cause wrongful loss to victim

When ppt passed from victim to Df, must be induced by fear of injury to self

#Abdul Wahab Mohd Noor – Victim had informed the matter to Badan Pencegah Rasuah before hading over the RM200 to Df. Court held in this case, passing of ppt not induced by fear, therefore no extortion.

See if can upgrade (if discuss robbery no need)

S386 extort put person in fear of death or grievous hurt

S385, 387, 388, 389 is put in fear in order to commit extortion

No extortion yet, but fear already arise, no passing of ppt yet

GANG ROBBERY

S395 - <20 years + whip

S400 – being a member of gang of robbers - <20 years + whip

S402 – assembly for purpose of committing gang-robbery

#Talib bin Haji Hamzah – must show assembly is for purpose of gang-robbery

S394, s396

S397 – robbery when armed or with attempt to cause death or grievous hurt

#Muda Zainal – s397 is not intended to create a gang robbery offence distinct from s395, cos punishment under s395 is heavy enough, while s397 does not list down additional punishment. Limited to robbery using weapon, more serious, whipping can be imposed in addition to other punishment.

#Tan Chew Man – Dfs charged under s34/ As s397 non-substantive, can only use additional to s394, used on person who committed crime, not the others.

DISHONEST MISAPPROPRIATION OF PPT (CMA)

S403 – 6 months < x < 5 years + whip + fine

#1 - Ppt x belong to Df

#Khairuddin Hj Musa - $ belongs to Bank Rakyat

#Tuan Puteh v Dragon – cheque belong to company

#Sinnathamby – stones belong to quarry JKR

#2 – AR - Misappropriate or convert for own use (permanent / temporary not important) / cause any person to dispose of

#Sohan Lal – misappropriate – set apart to wrong person, must be dishonestly

#K – misappropriate and convert to own use RM109975 belonging to Bank Rakyat

#TP – forged owner’s sign on cheque to withdraw $ (failed attempt), although there was no conversion since he did not manage to encash the cheque, he clearly misappropriated the cheque when he dishonestly attempted to encash it.

Exp 1 – temporary also CMA. Defence of return in future cannot apply.

#3 – MR: Dishonestly

S409B(1) – assume dishonest

#4 – see if can upgrade – s404 – must prove ppt belongs to the deceased @ time of death

CRIMINAL BREACH OF TRUST

S406 - <10 years + whip + fine

S405 – defines CBT

#1 – Property – include moveable s22 and non-moveable - #Dalmia

#2 – Entrustment of ppt / entrustment with dominion over ppt (argue both together)

·         Must have trust relationship – see illus (a) (b) (c)

CLIENT ACCOUNT #Gnanasegaran Pararajasingam – hold money on behalf of client

FIRM ACCOUNT   #Lee Siong Kiat – partnership – relationship of trust and confidence – one of them may be entrusted with property on behalf of partnership

#Sinnathamby – Df is worker of Jabatan Kerja Raya, given power to the stones in his employer’s quarry

#Wickrasooriya – Df is accountant for Sime Darby, CBT for misusing money accepted on behalf of company

o   In trust r/s, must have dominion over ppt – enables him to misuse the ppt / agst law or trust

Dominion:

- Sufficient control over the property

#Chang Lee Swee v PP - A (executive director in charge of financial affairs) was not in the position to manage the funds of the company without overall control of Tan and was therefore not entrusted with or had complete dominion over its funds.

#PP v Lawrance Tan Hui Seng - To prove entrustment with dominion over that property, must establish that dominion was the result of entrustment

*Note: for dominion to establish, usually have entrustment first, as in Sinnathamby.

But if you want to prove mere entrustment only also can.

·         Other situation – no requirement in law regarding creation of trust

#Gan Beng – Df borrowed bicycle, promised to return within 2 hours but not returned until day of trial

#Chin Wah – Df borrowed necklace from complainant for wife to wear, no return.

#2 AR – one of the following, MR is underlined:

(i)                  Dishonestly misappropriates for own use - S409B(1) – assume dishonest

(ii)                Dishonestly convert for own use

(iii)               Dishonestly use or dispose in violation of any law prescribing mode of discharge

#Yeoh Teck Chye – approving OD against mode money is to be discharged

#Gnanasegaran Pararajasingam – lawyer misuse compensation payment belonging to client which was banked into client’s account. 

#Sathiadas – offence complete when dishonest misappropriation for in violation of law prescribing mode to be discharged

(iv)              Dishonestly use or dispose against legal contract prescribing discharge of trust – #Jaswantrai Manilal - wl, wg in disposal of ppt

(v)                Willfully suffers any other person so to do

#Yeow Fook Yuen & Anor - evidence that money was misappropriated by the 2nd A with the 1st A’s approval and knowledge, the 1st A also failed to show that he bona fide believed that the he the had lawful authority to make these loans to the 2nd A.

#4 Whether can upgrade to aggravated form

S408 CBT by clerk or servant

S409 CBT by public servant (s21) #Gnanasegaran or agent (s402A) #Chong Chiew Nam – court clerk, accept summons before entering to Federal Govt’s account.

RECEIVING STOLEN PROPERTY

S411 – < 5 years or fine or both

[Elements – dishonestly (s24,23), receive/retain stolen property, knowing/RTB is stolen ppt.]

#1 – prove is stolen ppt – s410(1), s410(2)

#2 – AR: dishonestly receive/retain stolen ppt

(i)                  State dishonestly – s24,23

(ii)                Prove possession

#Hong Ah Huat -     Physical ability to manage a thing according to own will

-          Implied control and conscience of the thing

-          Accused must know and realize presence of thing

#Tan Kee Poh – Bring police to place where stolen ppt hidden x enuf 2 prove possession, more so if place x exclusively belong to Df.

#Wong Kia Heng – Df who has possession must gv exp how goods come into his possession, if no rsnble exp, regard as stolen ppt. Exp must arise genuine & rsnble doubt to exculpate.

(iii)               Prove is stolen property

# Albakhar – PP failed to prove orchid in Df’s house is stolen ppt

#Ajendranath – no need to prove thief convicted b4 Df found guilty for receiving stolen ppt.

#3 – MR: Know/RTB is stolen ppt

Court will look at facts of case

#Ahmad Ishak – cheque was given by someone who does not usually deal with cheques in working capacity, cheque not written with name of the person who pledged it to Df – RTB

#Razalitono – Df has RTB is stolen PPT cos lower than market $ and x explained why so by seller.

CHEATING                                                                                                                         

S417 – < 5 years or fine or both

#1 AR – deceiving any person

(i)                  #Seet Soon Guan – as long as Df acts with intention to deceive AND by that deception, accrue advantage to himself,  loss to someone else

#Low Cheng Swee – dishonest concealment of fact is deception (Exp 1)

#Khoo Kay Jin – make post-dated cheque when he knows acc x sufficient balance

#Shalby Ahmad – a misrep is a deception

#Mohd Jalani – caused by Df to induce – can be words or conduct

#2 MR – either one, (a) or (b)

(a)    Fraudulent s25/dishonest s24,23

Effect: induce person deceived to deliver ppt/consent any person retain ppt

#Low Cheng Swee – Df insured car with 2 insurance companies, made claim and both awarded him compensation. Liable for cheating as dishonestly conceal info from companies.

(b)   Intention

Effect: induce person to do/omit to do, this act/omission cause or likely to cause damage or harm to any person’s body, mind, reputation, property (s44 type of injury)

#Balboo Khan – not fall under s415(b) cos need to prove victim was deceived and victim suffered loss/damage. Here dad deceived into letting son operated in the eye by Df, the boy suffered damage.

#Mohd Jalani - The person who by deceiving another intentionally induces the person so deceived to do an act although the deceiver have not acted fraudulently or dishonestly

OTHER: CHEATING BY IMPERSONATION

S419 - < 7 years or fine or both

S416 – pretending to be some other person / by knowingly substituting one person for another / representing he is some other person

#1 Need to prove cheating in s415 first (follow above)

#2 R v Barnard

The court held that where a person at Oxford, who is not a member of the University, goes to a shop for the purpose of fraud, wearing a commoner’s cap and gown, and obtain goods, this appearing in a cap and gown is a sufficient cheating although nothing passed in words.

#3 Balboo Khan

FORGERY

S465 – 2 years or fine or both

S463 – def. forgery

#1 – AR: make false document

(i)                  Whole or part of doc is false

#Dato Haji Harun Idris: Court held meeting minutes (whole/part) is false doc in order to defraud FNCB to release a promissory note to Tinju Dunia SB.

#Hoo Chee Keong (No.2) – use fake credit card

#United Asian Bank Bhd v Tai Soon Heng Construction – Df forged signature on 97 company cheques and withdraw money from company account

(ii)                Forged dishonestly/fraudulently according to one of the ways in s464

#Dato Haji Harun Idris – s464(a) Fraudulently/dishonestly signs doc, intent to cause FNCB to believe it was signed by bank authority

#2 – MR: intention

Choose either one effect:

(i)                  To cause damage/injury to public/any person

(ii)                To support any claim/title

(iii)               To cause person part with ppt

(iv)              To enter exp/imp contract

(v)                To commit fraud/facilitate fraud

#Dato Haji Harun Idris (ii), #Hoo Chee Keong (iii)/(iv)

An Overview of the Cross-Dressing Case (Court of Appeal)

Muhamad Juzaili bin Mohd Khamis v Government of State of Negeri Sembilan [2015] MLJU 65

Brief facts

1. The appellants were male Muslims suffering from Gender Identity Disorder (GID), as testified by medical practitioners.
2. In 1992 NS state legislature enacted the Syariah Criminal Enactment. 
3. S 66 of Syariah Criminal Enactment makes it an offence for any Muslim male person to do any of the following in a public place: to wear a woman's attire, or to pose as a woman. 
4. Those convicted can be liable to a fine < RM1,000 or to imprisonment for a term < 6 months or to both. 
5. This section makes no exception for sufferers of GID like the appellants. No explanation has been given by the State for this unfortunate omission.
6. They have been repeatedly detained, arrested, and prosecuted by the religious authority of Negeri Sembilan acting pursuant to section 66 for cross-dressing.

Summary

s66 is against

1. Art 5(1) - cos it deprives A to live with dignity.
2. Art 5(1) - cos prevent them from stepping out from the house to work (get caught immediately if go out dressed like a woman)
3. Art 9(2) - cos no freedom of movement.
4. Art 10(1) - cos it is against their freedom of expression! Shad Saleem Faruqi: 'symbolic speech' like one's dressing and grooming can be treated as part of one's freedom of expression.

Directly taken from the case report

1. The legislative competence of the State Legislature of Negeri Sembilan on matters pertaining to the religion of Islam

[23] Article 74(2) of the Federal Constitution read with List II (State List), item 1, of the Ninth Schedule empowers State Legislatures to legislate on matters pertaining to the religion of Islam. 

[24] The present legislation comes under the following sub-item of item 1 of the State List -

... creation and punishment of offences by persons professing the religion of Islam against precepts of that religion...

[25] However, the exercise of this legislative power is not without constitutional limitations; for, Article 74(3) of the Federal Constitution stipulates that the legislative powers of the States are exercisable subject to any conditions or restrictions imposed with respect to any particular matter by the Federal Constitution. 

2. The position of Islam under the Federal Constitution

[26] Islam is declared by Art 3(1) of the Federal Constitution to be the religion of the Federation.

[27] The meaning of 'Islam' in Art 3(1) is explained by the Supreme Court in Che Omar bin Che Soh v Public Prosecutor [1988] 2 MLJ 55 (at p. 56):

There can be no doubt that Islam is not just a mere collection of dogmas and rituals but it is a complete way of life covering all fields of human activities, may they be private or public, legal, political, economic, social, cultural, moral or judicial. 

The question here is this: Was this the meaning intended by the framers of the Constitution? For this purpose, it is necessary to trace the history of Islam in this country after the British intervention in the affairs of the Malay States at the close of the last century.

[28] After having said the above, Salleh Abas LP, proceeded to trace the history of Islam after the British intervention in the Malay States and came to the following conclusion (at p 56):

Thus, it can be seen that during the British colonial period, through their system of indirect rule and establishment of secular institutions, Islamic law was rendered isolated in a narrow confinement of the law of marriage, divorce, and inheritance only. (See M.B. Hooker, Islamic Law in South-east Asia, 1984.)

In our view, it is in this sense of dichotomy that the framers of the Constitution understood the meaning of the word 'Islam' in the context of Article 3. If it had been otherwise, there would have been another provision in the Constitution which would have the effect that any law contrary to the injunction of Islam will be void. Far from making such provision, Article 162, on the other hand, purposely preserves the continuity of secular law prior to the Constitution, unless such law is contrary to the latter.

[29] In short, the Supreme Court takes the position that it was the intention of the framers of our Federal Constitution that the word 'Islam' in Art 3(1) be given a restrictive meaning.

[30] But what is more important for the purpose of our judgment is the fact that Art 3(4) qualifies the status of Islam in following terms:

…

(4) Nothing in this Article derogates from any other provision of this Constitution.

[31] What Art 3(4) means is that Art 3(1) is subject to, among others, the fundamental liberties provisions as enshrined in Part II of the Federal Constitution.

3. Laws inconsistent with the Federal Constitution are void.

[32] Article 4(1) of the Federal Constitution declares that the Federal Constitution is the supreme law of the Federation and any law passed which is inconsistent with the Federal Constitution shall, to the extent of the inconsistency, be void. 

[33] Part II (Arts 5 to 13) of the Federal Constitution guarantees the fundamental liberties of all Malaysians.

[34] Reading Art 74(3) and Art 4(1) together, it is clear (and this legal position is not disputed) that all State laws, including Islamic laws passed by State legislatures, must be consistent with Part II of the Federal Constitution (which guarantees the fundamental liberties of all Malaysians).

4. Section 66 of the Syariah Criminal Enactment 1992 (Negeri Sembilan)

s66 reads: Any male person who, in any public place wears a woman's attire or poses as a woman shall be guilty of an offence and shall be liable on conviction to a fine not exceeding one thousand ringgit or to imprisonment for a term not exceeding six months or to both.

[36] Mufti opines that the prohibition of a male Muslim dressing or posing as a woman is a precept of Islam.

[39] But counsel for appellant makes a pertinent point: Mufti's Opinion fails to address the issue that is crucial for the purpose of the present constitutional challenge: what is the position in Islam as to the appropriate dress code for male Muslims who are sufferers of GID, like the appellants?

5. Whether section 66 is in breach of art 5(1) of the Federal Constitution

[40] Art 5(1) of the Federal Constitution guarantees that no person shall be deprived of his life and personal liberty save in accordance with law. 

[41] The Federal Court in Sivarasa Rasiah v Badan Peguam Malaysia & Anor [2010] 3 CLJ 507 has held that -

• (i) 
  other freedoms may be found embedded in the 'life' and 'personal liberty' limbs of art 5(1) (at para 13 of the judgment);
• (ii) 
  'in accordance with law' in art 5(1) refers to a law that is fair and just and not merely any enacted law however arbitrary or unjust it may be (at para 20 of the judgment); and
• (iii) 
  when a law is challenged as violating a fundamental right under art 5(1), art 8(1) will at once be engaged: (at para 19 of the judgment)

6. Infringement of the right to live with dignity

[42] In Lembaga Tatatertib Perkhidmatan Awam Hospital Besar Pulau Pinang & Anor v Utra Badi K Perumah [2000] 3 CLJ 224 Gopal Sri Ram JCA (as he then was) in delivering the decision of the Court of Appeal explained that the word 'life' in Art 5(1) includes the right to live with dignity.

[44] Section 66 prohibits the appellants and all other male Muslim sufferers of GID from cross-dressing, and punishes them for any breach of the prohibition. 

Effect: Appellants and other GID sufferers perpetually at risk of arrest and prosecution simply because they express themselves in a way which is part of their experience of being human. Their core identity is criminalized solely on account of their gender identity. Builds insecurity and vulnerability into the lives of the appellants and other Muslim male persons with GID. The existence of a law that punishes the gender expression of transsexuals, degrades and devalues persons with GID in our society. As such, section 66 directly affects the appellants' right to live with dignity, guaranteed by Art 5(1), by depriving them of their value and worth as members of our society.

Therefore, s66 - unconstitutional and void.

7. Infringement of right to livelihood/work

[48] There is yet another reason as to why section 66 is inconsistent with Art 5(1). It has also been established by judicial authorities that the word 'life' in Art 5(1) means more than mere animal existence: it also includes such rights as livelihood and the quality of life. In Tan Tek Seng v Suruhanjaya Perkhidmatan Pendidikan & Anor.

[50] The effect of section 66 is that it prohibits the appellants and other sufferers of GID who cross-dress from moving in public places to reach their respective places of work.

[51] S 66 has the inevitable effect of rendering their right to livelihood/work illusory, for they will never be able to leave their homes, cross-dressed, to go to their respective places of work without being exposed to being arrested and punished under section 66. Section 66 is therefore inconsistent with Art 5(1).

8. Whether section 66 contravenes Art 8(1) of the Federal Constitution

[54] Appellants, male Muslims suffering from GID, are in a different situation as compared to normal male Muslims, should not be treated similarly as the normal male Muslims. 

Yet s66 treat them equally, does not provide for any exception for sufferers of GID like the appellants. The State, although does not dispute the existence of sufferers of GID among male Muslims such as the appellants, yet does not explain for such a serious legislative omission. 

In other words, the State and the impugned section simply ignore GID sufferers such as the appellants, and unfairly subject them to the enforcement of the law. 

As a consequence, they could not dress in public in the way that is natural to them. They will commit the crime of offending section 66 the very moment they leave their homes to attend to the basic needs of life, to earn a living, or to socialize; and be liable to arrest, detention and prosecution. 

This is degrading, oppressive and inhuman. Thus the inclusion of persons suffering from GID in the section 66 prohibition discriminates against them. Therefore, section 66 is inconsistent with Art 8(1) of the Federal Constitution as it is discriminatory and oppressive, and denies the appellants the equal protection of the law.

9. Whether section 66 contravenes Art 8(2) of the Federal Constitution

[57] Art 8(2) of the Federal Constitution states that in any law there shall be no discrimination against citizens on the ground of gender. 

[58] Section 66 only prohibits male Muslims from cross-dressing or from posing as a woman in public. But this section does not prohibit female Muslims from cross-dressing as a man or from posing as a man in public. It is argued that section 66 thus subjects male Muslim persons like the appellants to an unfavourable bias vis a vis female Muslim persons. Therefore, section 66 is discriminatory on the ground of gender, and is inconsistent with Art 8(2).

RESPONDENT COUNSEL'S ARGUMENT (REJECTED): 

Section 66 is 'personal law' for the purpose of Art 8(5)(a) - permits the making of personal laws that discriminate on account of gender or other factors in Art 8(2).

[61] It must be appreciated that section 66 is not enacted pursuant to the particular sub-item of Item 1 of List II of the Ninth Schedule that refers to personal law:

… Islamic law and personal and family law of persons professing the religion of Islam, including the Islamic law relating to succession, adoption, legitimacy, guardianship, gifts, partitions and non-charitable trusts;

[62] Section 66 is in fact enacted pursuant to that particular sub-item of Item 1 of List II that states -

… creation and punishment of offences by persons professing the religion of Islam against precepts of that religion...

[63] Thus section 66 is not personal law.

10. Whether section 66 is inconsistent with Art 9(2) of the Federal Constitution

[64] Article 9(2) of the Federal Constitution guarantees freedom of movement within the Federation.

[65] Section 66 is explicit in criminalizing any Muslim man who in any public place wears a woman's attire or poses as a woman.

[66] Not merely restrict the appellants' freedom of movement - actually deny appellants and sufferers of GID of the right to move freely in public places. Effect: never be able to leave their homes and move freely in the State of Negeri Sembilan without being exposed to being arrested and punished under section 66. S 66 denies the appellants and other male Muslim sufferers of GID of their right to freedom of movement. Hence, unconstitutional.

[68] Even if regard section 66 as a restriction and not denial of the right to move freely within the country, still, such restriction has to be reasonable, according to judicial authorities (see Sivarasa Rasiah, Dr Mohd Nasir Hashim v Menteri Dalam Negeri Malaysia [2007] 1 CLJ 19; and Muhammad Hilman Idham & Ors v Kerajaan Malaysia & Ors [2011] 9 CLJ 50). S 66 is an unreasonable restriction of the appellants' right to freedom of movement - and hence unconstitutional as being inconsistent with Art 9(2) of the Federal Constitution. 

11. Whether section 66 is in breach of Art 10(2) of the Federal Constitution

[69] Art 10(1)(a) of the Federal Constitution guarantees freedom of expression. 

[70] A person's dress, attire or articles of clothing are a form of expression, which in our view, is guaranteed under Art 10(1)(a).

[71] Professor Shad Saleem Faruqi in his book Document of Destiny, the Constitution of the Federation of Malaysia, expresses the view that even 'symbolic speech' like the manner of one's dressing and grooming can be treated as part of one's freedom of expression.

[72] Landmark American Supreme Court case of Tinker v Des Moines Independent Community School District]. In Tinker, it was held that a school regulation which prohibited students from wearing black armbands to silently protest against the United States Government's policy in Vietnam was violative of the First Amendment to the United States Constitution, which guaranteed free speech: (pg 513–514)

[73] Section 66 directly affects the appellants' right to freedom of expression, in that they are prohibited from wearing the attire and articles of clothing of their choice.

[74] Art 10(2)(a) states that only Parliament may restrict freedom of expression in limited situations; and so long as such restrictions are reasonable.

[75] The State Legislative Assemblies in Malaysia (and this includes the State legislature of Negeri Sembilan) have no power to restrict freedom of speech and expression. Only Parliament has such power. This is confirmed by the Supreme Court in Dewan Undangan Negeri Kelantan & Anor v Nordin Salleh Anor[1992] 1 CLJ 72 (Rep) at 82:

Next it must be observed that Article 10(2) of the Federal Constitution provides that only Parliament may by law impose those restrictions referred to in Article 10(2), (3) and (4) of the Federal Constitution. Therefore even if any such restriction purported to have been imposed by the Constitution of the State of Kelantan was valid, and it is not, it is clear that the restriction could not be imposed by a law passed by any State Legislature. That would be another ground why Article XXXIA of the Constitution of Kelantan should be invalidated.

[76] Section 66 is a State law that criminalizes any male Muslim who wears a woman's attire or who poses as a woman in a public place. Hence, section 66 is unconstitutional since it is a law purporting to restrict freedom of speech and expression but it is a law not made by Parliament.

[77] Moreover, any restriction on freedom of expression must be reasonable - Sivarasa Rasiah 

[78] Clearly, the restriction imposed on the appellants and other GID sufferers by section 66 is unreasonable. Thus, also from the aspect of reasonableness, section 66 is unconstitutional.

CONCLUSION

[94] S 66 is invalid as being unconstitutional. It is inconsistent with Arts 5(1), Art 8(1) and (2), Art 9(2), and Art 10(1)(a) of the Federal Constitution.