LEGAL CAULDRON Jayadeep Hari & Jamil

Advocates and Solicitors

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Issue no. 1

of 2013

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GA

L C

AU

LD

RO

N Iss

ue N

o 1

of 2013

MELAKA

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Melaka. T: 06-234 7330

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In this issue:

Our offices:

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KUALA LUMPUR

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www.jhj.com.my

Landlord vs. Tenant -

A Guide To Tenancy Manage-

ment

Sexual Harassment -

How Safe Are You At Work?

Seeing Double -

Insurance Claim or Full Sum

Damages, or Both?

JHJ New Strategic Alliance In

Singapore - Voskamp Lawyers

JHJ Office Trip - Tioman Is-

land Vacation

Season’s Greetings - JHJ

Christmas Kringle

EDITOR:

Adeline Chin

DESIGN & LAYOUT:

Andrew Chee

CONTRIBUTORS:

Manisah Saharin

Siti Khadijah Md Yunus

Shobana Padmanathan

Editor’s Note:

“If you change the way you

look at things, the things you

look at change.” Change is the

only constant, and if not for

change, we would have none

to learn nor to improve upon.

This first issue of the 2013

Legal Cauldron would be our

way of embracing, sharing and creating with you,

Change.

2012 had come and gone so swiftly. While we re-

joice having made it through the year alongside

the highly publicised eschatological belief of an

apocalypse, 2012 had also seen many earnest

changes in JHJ. Amongst which were the addition

of new members to our team and the celebration

of several nuptials during the second half of the

year. Besides expanding our practice areas to in-

clude the provision of advisory services for the

mining and quarrying industry, we are also proud

to announce a new strategic alliance with Vos-

kamp Lawyers of Singapore.

Voskamp Lawyers is the largest Dutch legal firm

in South East Asia to date, with offices in Singa-

pore, Amsterdam and Malaysia. The increasingly

globalised nature of today’s business and commu-

nication structure had made it important for us to

provide you the ease and comfort of having quali-

ty cross-border legal services without the hassle

and risk of venturing into overseas transactions

based on unsafe sources. We hope that with this

new strategic alliance, JHJ will be able to continue

providing you a peace of mind as you advance to

broaden your scope of business ventures, be it

geographically or professionally.

As JHJ had always been a staunch believer of con-

tinuous learning, we expand our knowledge spec-

trum by learning about your needs and catering to

them. Hence please do keep those inquiries com-

ing in! Our team would be delighted to hear from

you.

On a lighter note, this issue of the Legal Cauldron

also shares insights on our annual office trip to the

beautiful Tioman Island and tidbits on our Christ-

mas Kringle alongside other events. We have even

decided to spice things up by sharing our stories

via QR codes! So just whip out your mobile

phones and scan away to view the full write-up or

simply log on to our website at

www.jhj.com.my for more information.

My hope as new editor of the Legal Cauldron is to

continue sharing and bringing forth to you these

changes, regardless it being a casual JHJ event or

simply good-to-know legal information. We hope

you would enjoy this issue of the Legal Cauldron

as much as we enjoyed sharing it.

Happy reading and have a blessed 2013 from all of

us here at JHJ!

Legal Cauldron 1 of 2012 | 2

EDITOR

Adeline Chin Knowledge Department

adeline@jhj.com.my

Recently, more and more issues regarding tenancy

have arisen due to the rapid development in the

property sector. And for this reason, I am called

to discuss on the conflicts between the landlord

and the tenant, along with suggestions to cater to

some of the issues that commonly arise.

I often suggest to my friends that if they have ex-

tra money, invest in property; to be landlords and

rent out their properties to cover the bank loan.

However, being a landlord is not the easiest job in

the world, especially if you happen to have a ten-

ant from “hell”.

The term “Landlord” indicates a person who is

either a registered owner or one who has benefi-

cial interest in a land or premise; be it a shop lot,

dwelling house, factory or etc. A “Tenant” on the

other hand is a person who is granted a tenancy

either on a contractual or a monthly basis of the

said land or premise. A tenant need not necessari-

ly be an individual. A company can also be a ten-

ant.

A “Tenancy Agreement” is defined as a contract

signed by both the landlord and the tenant which

states all the terms and conditions for the rental

of a property. Statutorily, a tenancy exceeding 3

years will be considered a “lease of property” that

would be subject to registration against the title

to the property under the National Land Code

1965 (“the Act”). Legally, whilst a landlord to a

registered lease under the Act is afforded statuto-

ry protection, a landlord of an unregistered lease

may not be, and therefore, would be well advised

to have his relationship with his tenant reduced

into a formal agreement or a Tenancy Agreement.

“Standard Tenancy Agreement”

From the point of time when the Tenancy Agree-

ment is signed by both parties, the landlord and

the tenant are deemed to be bound by its terms

and implications. The principle of freedom to con-

tract strives to ensure a win-win situation for both

parties, allowing there to be a consensus ad idem

(“meeting of minds”) before an agreement could

be deemed valid. Hence, you should never believe

that there is only one standard tenancy agree-

ment. Ideally, an astute person should ensure that

the terms contained in the tenancy agreement are

not lop sided.

It is pertinent for both parties to know their rights

and obligations under the Agreement to ensure an

effective tenancy management.

In Malaysia, quite frequently rental practices do

not involve any kind of written contract binding

the landlord and the tenant. This is sad but true.

Although a written contract of tenancy is highly

encouraged, any tenancy with no written agree-

ment can still be valid and enforceable by law un-

Legal Cauldron 1 of 2012 | 3

LANDLORD VS TENANT

A Guide To Tenancy Management By Manisah Saharin

“…being a landlord is not the easiest

job in the world…”

“…never believe that there is only

one standard tenancy agreement.”

der s213 (2) (a) of the Act. Where the existing

tenancy has expired or where there is no written

tenancy agreement but rental is still being paid,

the tenancy would be deemed as a month to

month tenancy, that is to say, deemed renewed

automatically every month upon the expiry of the

previous month unless expressed otherwise by

notice.

It is submitted that this position rather favours

the tenant. So long as a Tenancy Agreement is

“deemed” to subsist, the law affords protection to

the tenant. An added burden is placed on the

landlord to issue a termination notice allowing for

a reasonable amount of time to elapse before ter-

mination taking effect legally.

Termination

The Agreement usually indicates the manner of

which termination of a tenancy should take place.

Prior to such termination, a notice of termination

or a notice to vacate is usually given to the tenant

within the time stipulated in the Agreement. If

sufficient notice had been given; the landlord has

the right to vacant possession of the premises

without payment of any compensation. If the ten-

ant so wishes to continue the tenancy beyond its

term, the terms of a new tenancy or a renewal

(and a possible rent adjustment) of the previous

must be mutually agreed upon, failing which the

Tenancy Agreement is considered expired and

the tenancy granted therein, terminated.

“Tenants from Hell”

Difficulties arise when in spite of termination, a

tenant refusing to leave. Termination may have

been the result of several acts of default of the

Tenancy Agreement. We have seen several in-

stances where tenants overstay or “disappear”, or

create a nuisance or damage the property or use

the property for wrong, illegal or immoral purpos-

es. Whatever the case may be, often, despite best

intentions, the landlord would incur costs, time

and expense in seeking his remedies.

In a fit of spite, the landlord might decide to take

the law into his own hands and break into the

premise, cut off the power supply, prevent the

tenant from entering into the premise and the list

goes on. STOP!

The tenant, besides having a right to claim damag-

es from the landlord, may also initiate an injunc-

tion proceeding to claim his rights to rent or to

stay in the premise, and to prohibit the landlord

from interrupting his stay on the premise. So in-

stead of recovering vacant possession of the prop-

erty or at least the rent or the said premise, the

landlord may end up facing a civil claim by his / her

tenant.

The landlord may be deemed a trespasser for

denying the tenant access into the premise. Lock-

ing up the premise for non-payment of rent is no

justification in the eyes of the law.

The amended section 7(2) of the Special Relief Act

1950 relegates remedy for ‘self-help’ to making it

incumbent to the landlord to seek to enforce his

right to recover his property by way of a Court

action alone.

Landlord’s Remedies

The landlord may file a distress proceeding against

the tenant if he wishes to collect his overdue rent-

al from the tenant. He could also file an eviction

summons in Court if he wishes to recover vacant

possession of his premises.

Legal Cauldron 1 of 2012 | 4

“In a fit of spite, the landlord might

decide to take the law into his own

hands… STOP!”

For that, an eviction notice must be served to the

tenant, giving the tenant certain grace period to

handover a vacant possession and pay all overdue

rental. After the expiry of such notice, the land-

lord must take out a court order for eviction.

Only then can the landlord seal the premises with

the help of the court bailiff (to prevent access and

entry to the delinquent tenant). In such instances,

the landlord may also claim double rental if the

tenant remains in occupation of the premises

from the time of the eviction notice until such

time as vacant possession is redelivered.

A Call for a Tenancy Act

At present, the law places the burden on land-

lords to ensure that their tenancy agreement suffi-

ciently provides for all eventualities and to take

specific steps before forcibly claiming possession

of his property.

There is no specific law governing the relationship

between the landlord and the tenant in Malaysia.

Tenancy agreements are covered under the Con-

tracts Act 1950, whilst the eviction of a tenant is

covered under the Specific Relief Act 1950. Cer-

tain provisions regarding leases and tenancies are

in turn contained in our National Land Code of

1965. These provisions although existing, are nev-

ertheless less than expedient in protecting the

rights of the landlord.

Having a specific Tenancy Act will no doubt help

solve many problems arising from a tenant-

landlord relationship. In the United Kingdom for

example, the Landlord and Tenant Act 1985 con-

solidated certain provisions pertinent to both the

landlord and the tenant such as matters concern-

ing the disclosure of identity, interests, remedies

for breach of contract, etc. Protection is afforded

to both parties statutorily and one cannot con-

tract out of these statutory provisions. The UK

Tenancy Act spells out all the rights, duties, obliga-

tions and remedies of the parties that can sum-

marily be effected without involving distressful,

lengthy and convoluted court processes.

In conclusion, until such time as there is a

“Tenancy Act” or the like in a Malaysian context,

as a landlord, you are well advised to be cautious

and be prepared to be faced with difficulties even

if you have a tenancy agreement that spells out all

the rights and duties of you and your tenant.

By Manisah Saharin

manisah@jhj.com.my

Legal Cauldron 1 of 2012 | 5

NEWSFLASH

JHJ is proud to announce another strategic alliance

between:

and

Voskamp Lawyers is the largest Dutch legal firm

in the South East Asia region since August 2010,

specializing in integrated tax and legal advice on

cross border transactions. Together, we strive to

provide you the assurance and assistance you

need in your overseas business ventures, giving

you peace of mind because We Care.

“…be cautious and be prepared to

be faced with difficulties…”

Have you ever been a victim of offensive sexual

remarks or jokes at work? Or has a colleague at-

tempted to touch you in any way? Were you un-

happy about it? If your answer is yes, you are a

victim of sexual harassment. A survey carried out

in some industrialized countries which have laws

specifically governing sexual harassment showed

that 7 out of 10 female employees were sexually

harassed at their workplace. Sadly in Malaysia

there is no Act that specifically governs the law

on sexual harassment.

INTRODUCTION

This article aims to outline the law on sexual har-

assment at the workplace and the legal remedies

available to individuals of a workplace.

Before we go any further, it is of utmost im-

portance to first clarify that sexual harassment

not only happens to women but also to men, and

not only to employees but also to employers.

Sexual harassment may happen regardless of it

being a heterosexual or homosexual relationship,

and hence such wide scope will be dissected for

better understanding and clarity in the following

paragraphs.

WHAT IS SEXUAL HARASSMENT?

Sexual harassment can be defined as any unwel-

come sexual behaviour that is repeated and inter-

feres with your work. If the conduct was subtle

and you are uncertain if it was indeed harassment,

the question to ask is whether the act offended,

humiliated or intimidated you.

The intention of the harasser is irrelevant so long

as the victim can corroborate the allegation with

documentary, oral, circumstantial, similar fact, ex-

trinsic or physical evidence.

Another recognised means of sexual harassment

can come in the form of suggestive remarks.

Comments that attack a person’s intelligence and

capabilities based on his/her gender could amount

to sexual harassment. For instance, a comment

such as “women should be at home raising the

children and not working” can constitute a form

of sexual harassment.

THE LAW IN MALAYSIA

Knowing that there is no Act which specifically

governs such offences, how then can we seek re-

dress if we have been sexually violated at the

workplace? The victim or complainant may choose

to seek legal recourse under the employment law

or alternatively, lodge a police report to press

criminal charges against the offender under the

Penal Code.

Employment Act 1955

Recent amendments to the Employment Act 1955

which came into force on 1 April 2012 introduced

the criminalization of sexual harassment in the

workplace.

The Act introduced Part XVA: Sexual Harassment

alongside a definition of such “act” which coin-

Legal Cauldron 1 of 2012 | 6

SEXUAL HARASSMENT

How Safe Are You At Work? By Shobana Padmanathan

“A survey…showed that 7 out of 10

female employees were sexually har-

assed at their workplace.”

cides with the intensified anti-harassment efforts

and pursuits by non-governmental organizations in

Malaysia. Sexual harassment is now defined in the

Act as any “unwanted conduct of a sexual nature,

whether verbal, non-verbal, visual, gestural or

physical, directed at a person; the act which is of-

fensive or humiliating or is a threat to his well-

being, arising out of and in the course of his em-

ployment.”

Section 81A of the amended Act recognised that

a complaint of sexual harassment means a com-

plaint by an employee against another employee /

the employer, or an employer against an employ-

ee.

One of the options made available to the com-

plainant is that he / she may terminate the con-

tract of service WITHOUT NOTICE once the

alleged sexual harassment can be proven before

the Director-General. The complainant will then

be entitled to wages, termination benefits and in-

demnity (if any) as if he / she have given notice of

termination.

THE EMPLOYER’S DUTY

The Act has now made it compulsory for an em-

ployer to inquire, in the prescribed manner, into a

complaint made by a victim immediately upon re-

ceiving it. However, the employer may refuse to

inquire (with reasons) in writing within 30 days

upon receipt of the complaint. The Act also spec-

ified situations in which it is acceptable for the

employer to refuse to inquire, which are: -

1) The complaint has been previously inquired

into;

2) There was no sexual harassment proven;

3) The employer feels that the complaint is frivo-

lous or not made in good faith.

Fret not if a complaint has been refused to be in-

quired into. It is not the end of the road. The

complainant can refer the matter to the Director-

General who will then have the power to direct

the employer to address the complaint immedi-

ately. Should this fail to provide any remedy to the

complainant, one may then file an appeal to the

High Court to challenge the Director-General’s

decision. In addition to this, if the complaint is

made against an employer who is a sole proprie-

tor, the Director-General must inquire into the

matter himself.

The employer who is convinced of the occurrence

of the offence (proven from inquiry conducted)

may take disciplinary action against the wrongdoer

which includes dismissing the wrongdoer employ-

ee without notice, downgrading the employee or

imposing any other punishment which the employ-

er deems fit. If the punishment imposed is suspen-

sion without wages, it must not exceed a period

of two weeks.

The Act has also imposed a mandatory obligation

on the employer’s part with regards to this. An

employer who fails or refuse to inquire into a

complaint and to submit a report of inquiry to the

Director-General is deemed to have committed

an offence and if convicted, will be liable to a fine

not exceeding RM10,000.00.

Intentional Tort

A victim may also bring an action against the

wrongdoer under intentional torts. Under this

common law doctrine, the victim must prove that

the wrongdoer had acted with the specific intent

to perform the offence. The employer or the or-

ganization may also be vicariously liable for the act

of the harasser.

Legal Cauldron 1 of 2012 | 7

“Sexual harassment not only happens

to women but also to men.”

Penal Code

The four main sections that deal with the offence

are (i) Section 354 which provides for assault or

use of criminal force to a person with intent to

outrage modesty, (ii) Section 355 which provides

for assault or criminal force with intent to dishon-

our a person, otherwise than on grave provoca-

tion, (iii) Section 375 which provides for rape and

(iv) Section 509 which provides for word or ges-

ture intended to insult the modesty of a woman.

Code of Practice on the Prevention and

Eradication of Sexual Harassment in the

Workplace

The Code of Practice on the “Prevention and

Eradication of Sexual Harassment in the Work-

place” came into force in August 1999 under the

purview of the Ministry of Human Resources Ma-

laysia. The Code encourages employers of both

public and private sector to implement in-house

mechanisms to prevent, handle and eradicate sex-

ual harassment in the workplace. The in-house

mechanism provided by the Code included a poli-

cy statement prohibiting sexual harassment in the

organisation, a clear definition of sexual harass-

ment, a complaint/ grievance procedure, discipli-

nary rules and procedure against the harasser and

those who make false accusations, protective and

remedial measures for the victims and promotion-

al and educational programmes to educate the

company’s employees.

The Code ingeniously stipulated the meaning and

spheres that encompasses the word “workplace”

in the context of sexual harassment, something

which the amended Employment Act 1955 failed

to consider. Situations under which such employ-

ment-related sexual harassment may take place

include, but is not limited to are: at work-related

social functions, in the course of work assign-

ments outside the workplace, at work-related

conferences or training sessions, during work-

related travel, over the phone and through elec-

tronic media.

This Code will serve as an effective guideline in

organizations that do not have their own policy in

place to challenge sexual harassment in the work-

place.

RECOURSE FOR THE AGGRIEVED EM-

PLOYEE (HARASSER)

The employee who feels that he / she had been

wrongly accused and punished (dismissed) by the

employer may under section 20 of the Industrial

Act 1967, make representations to the Director-

General for reinstatement and this representation

must be filed within 60 days of the dismissal.

CONCLUSION

The requirement of adopting the policy statement

prohibiting sexual harassment in the workplace is

not mandatory under the Employment Act 1955.

It is the author’s opinion that employers should

adopt the in-house mechanism provided by the

Code, albeit it being a mere guideline, to ensure a

safe and conducive working environment for its

employees. Any unwelcome behaviour that threat-

ens the safety or well-being of an individual at the

workplace would not only affect one’s occupation-

al health, productivity and morale but also leaves a

long-term effect on the emotional health of the

victim. It is the legal and moral obligation of the

employer to safeguard and protect its employees

from avoidable occupational hazards such as this.

By Shobana Padmanathan

shobana@jhj.com.my

Legal Cauldron 1 of 2012 | 8

Legal Cauldron 1 of 2012 | 9

JHJ Office Trip Tioman Island Vacation

Scan QR Code for full story

Season’s Greetings JHJ Christmas Kringle 2012

Scan QR Code for full story

If you have met with an accident and are suing

for damages with regards to personal injury

from the wrongdoer, you would want the full

sum of damages according to what you have

suffered or incurred.

But can you still get the full sum of damages

from the wrongdoer (through his insurer) if

you are already covered by your own insur-

ance and your insurer had already paid for the

medical expenses or have paid you for the

same? Can you have both, damages claim from

the wrongdoer, and monies from your own in-

surer?

The relevant law in this regard is section 28A

(1) (a) of Civil Law Act 1956 (“the Act”)

which provides that in assessing damages re-

coverable for non-fatal personal injury, no de-

duction should be made to any sum paid or

payable in respect of such personal injury un-

der any contract of assurance or insurance, re-

gardless whether it was made before or after

the coming into force of this Act.

This simply means that the court, in calculating

damages to be awarded to you by the wrong-

doer, must not deduct any sum paid that is

payable by your insurer. Thus in answering the

above question of whether you are entitled to

get both, damages from the wrongdoer and,

your insurer, the answer would appear to be a

resounding “yes”.

But in my opinion, it is not so simple. I would

argue that S28A applies when a Plaintiff has tak-

en out a Personal Accident policy or a similar

policy and has received payment from his/her

insurance company. Then I would argue S28A

applies and the sum received by the Plaintiff

cannot be taken into account when determining

quantum if he met with an accident.

However if the Plaintiff had taken out a Hospi-

talisation policy, then I would argue that S28A

would not apply. And if his insurers have paid

under the Hospitalisation policy, then the Plain-

tiff would not be entitled to claim for the same

medical expenses from the wrongdoer.

The case of Ward v Malaysian Airlines Sys-

tem Bhd [1991] 3 MLJ 317, seem to adopt

this position. In this case, the court held that

considering the nature of an insurance policy

scheme, the insurance benefits were not de-

ductible under section 28A (1) (a) of the Act.

The words used in that section should be inter-

preted in its plain and ordinary meaning. By

adopting a strict rule of interpretation, our Par-

liament in its wisdom had made it crystal clear

that any sum paid or is payable in respect of a

non-fatal personal injury under any contract of

assurance or insurance shall not be taken into

account in assessing damages.

The case of Sin Hock Soon Transport Sdn

Bhd & Anor v Low King Ban [2006] 3 MLJ

Legal Cauldron 1 of 2012 | 10

SEEING DOUBLES

Insurance Claim or Full Sum Damages, or Both? By Siti Khadijah Md Yunus

‘…the answer would appear to be a

resounding “yes”. But…it is not so

simple.’

174 echoed Ward’s case and held that where

the employer was the party who paid for the

premium under the contract of employment,

damages awarded and received by the Plaintiff

should not be deducted. However in the in-

stant appeal, the respondent himself purchased

the policy and paid for the premiums. By apply-

ing the principles as enunciated in Ward's case,

the respondent was clearly entitled to the in-

surance monies paid under his own insurance

coverage and also the special damages awarded

by way of his claims against the appellants.

However prior to Sin Hock’s case [supra], the

courts held in the case of Khairul Sham bin

Ahmad & Anor v Yesudass a/l Michaelsamy

[2005] 2 MLJ 679 that the Plaintiff cannot

claim for medical expenses paid by the insur-

ance company as the rights to recover the

medical expenses lies in the hands of his insur-

er. The medical expenses of RM30,000 award-

ed by the learned Sessions Court judge had

simply enriched the Plaintiff. This enrichment

violated the philosophy behind the principle of

compensatory damages upheld in this country.

Therefore such an award should not be al-

lowed.

Until recently, the question as to whether one

would be entitled to claim for damages from

the wrongdoer in addition to receiving insur-

ance monies from his own insurer pursuant to

a hospitalisation policy still remained unclear

until the recent Court of Appeal decision in

the case below was made.

The judge in Sathisvaran a/l Chandrasegaran

v Agilan a/l Vanmugelan & Anor [2012] 4

MLJ 548 differentiated general damages and

special damages, contending that in Ward’s case

the Plaintiff was seeking an award of general

damages for pain and suffering and thus section

Legal Cauldron 1 of 2012 | 11

28A (1) (a) applies; whilst in the present case,

the Plaintiff was seeking special damages which

should be the amount spent by the Plaintiff

himself and hence the section does not apply.

Furthermore, if the claim was allowed, it would

enrich the Plaintiff out of his misfortune, and

this would be contrary to the universal rule

that one is not allowed to recover something

which he has not lost. Therefore the medical

bill paid by the Plaintiff’s insurer in this case

was deducted from the damages awarded.

Even though section 28A (1) (a) does not state

whether the word “damages” is one under the

head of general or special damages, this case

made it clear that medical expenses or any

expenses that have been paid by the

Plaintiff’s own insurance are deductible in

calculating the damages.

Hence you are unlikely to be able to claim or

the expenses that have been paid or are paya-

ble by your insurance.

As for general damages or damages for pain

and suffering, Ward’s case stands. You may get

a full sum of damages even if your own insurer

has paid you.

By Siti Khadijah Md Yunus

sitikhadijah@jhj.com.my

“…if the claim was allowed, it would

enrich the Plaintiff out of his misfor-

tune…”

Kuala Lumpur . Petaling Jaya . Kota Bharu . Melaka

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