Legal cauldron 1 of 2013

No KDN: PP 15706/02/2013
(032198)

LEGAL CAULDRON
Jayadeep Hari & Jamil
Advocates and Solicitors

In this issue:
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:

Issue no. 1
Adeline Chin
LEGAL CAULDRON Issue No 1 of 2013

DESIGN & LAYOUT:
Andrew Chee

of 2013 CONTRIBUTORS:
Manisah Saharin
Siti Khadijah Md Yunus
Shobana Padmanathan
Our offices:

PETALING JAYA KOTA BHARU 1 KOTA BHARU 2 MELAKA KUALA LUMPUR
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46000 PJ, Selangor. Kelantan. 15000 Kota Bharu, Kelantan. Melaka. 50490 Kuala Lumpur.

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F: 03-7781 7255 F: 09-741 2051 F: 09-747 4733 F: 06-234 4800 www.jhj.com.my

Editor’s Note:
“If you change the way you ing in! Our team would be delighted to hear from
look at things, the things you you.
look at change.” Change is the
only constant, and if not for On a lighter note, this issue of the Legal Cauldron
change, we would have none also shares insights on our annual office trip to the
to learn nor to improve upon. beautiful Tioman Island and tidbits on our Christ-
This first issue of the 2013 mas Kringle alongside other events. We have even
Legal Cauldron would be our decided to spice things up by sharing our stories
way of embracing, sharing and creating with you, via QR codes! So just whip out your mobile
Change. phones and scan away to view the full write-up or
simply log on to our website at
2012 had come and gone so swiftly. While we re- www.jhj.com.my for more information.
joice having made it through the year alongside
the highly publicised eschatological belief of an My hope as new editor of the Legal Cauldron is to
apocalypse, 2012 had also seen many earnest continue sharing and bringing forth to you these
changes in JHJ. Amongst which were the addition changes, regardless it being a casual JHJ event or
of new members to our team and the celebration simply good-to-know legal information. We hope
of several nuptials during the second half of the you would enjoy this issue of the Legal Cauldron
year. Besides expanding our practice areas to in- as much as we enjoyed sharing it.
clude the provision of advisory services for the
mining and quarrying industry, we are also proud
Happy reading and have a blessed 2013 from all of
to announce a new strategic alliance with Vos-
us here at JHJ!
kamp Lawyers of Singapore.

Voskamp Lawyers is the largest Dutch legal firm EDITOR
in South East Asia to date, with offices in Singa-
pore, Amsterdam and Malaysia. The increasingly
Adeline Chin
globalised nature of today’s business and commu- Knowledge Department
nication structure had made it important for us to adeline@jhj.com.my
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-

Legal Cauldron 1 of 2012 | 2

LANDLORD VS TENANT
A Guide To Tenancy Management
By Manisah Saharin

Recently, more and more issues regarding tenancy 1965 (“the Act”). Legally, whilst a landlord to a
have arisen due to the rapid development in the registered lease under the Act is afforded statuto-
property sector. And for this reason, I am called ry protection, a landlord of an unregistered lease
to discuss on the conflicts between the landlord may not be, and therefore, would be well advised
and the tenant, along with suggestions to cater to to have his relationship with his tenant reduced
some of the issues that commonly arise. into a formal agreement or a Tenancy Agreement.

“Standard Tenancy Agreement”
“…being a landlord is not the easiest From the point of time when the Tenancy Agree-
job in the world…” 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-
I often suggest to my friends that if they have ex- tract strives to ensure a win-win situation for both
tra money, invest in property; to be landlords and parties, allowing there to be a consensus ad idem
rent out their properties to cover the bank loan. (“meeting of minds”) before an agreement could
However, being a landlord is not the easiest job in be deemed valid. Hence, you should never believe
the world, especially if you happen to have a ten- that there is only one standard tenancy agree-
ant from “hell”. ment. Ideally, an astute person should ensure that
the terms contained in the tenancy agreement are
The term “Landlord” indicates a person who is not lop sided.
either a registered owner or one who has benefi-
cial interest in a land or premise; be it a shop lot, It is pertinent for both parties to know their rights
dwelling house, factory or etc. A “Tenant” on the and obligations under the Agreement to ensure an
other hand is a person who is granted a tenancy effective tenancy management.
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- “…never believe that there is only
ant. one standard tenancy agreement.”

A “Tenancy Agreement” is defined as a contract
signed by both the landlord and the tenant which In Malaysia, quite frequently rental practices do
states all the terms and conditions for the rental not involve any kind of written contract binding
of a property. Statutorily, a tenancy exceeding 3 the landlord and the tenant. This is sad but true.
years will be considered a “lease of property” that Although a written contract of tenancy is highly
would be subject to registration against the title encouraged, any tenancy with no written agree-
to the property under the National Land Code ment can still be valid and enforceable by law un-


der s213 (2) (a) of the Act. Where the existing been the result of several acts of default of the
tenancy has expired or where there is no written Tenancy Agreement. We have seen several in-
tenancy agreement but rental is still being paid, stances where tenants overstay or “disappear”, or
the tenancy would be deemed as a month to create a nuisance or damage the property or use
month tenancy, that is to say, deemed renewed the property for wrong, illegal or immoral purpos-
automatically every month upon the expiry of the es. Whatever the case may be, often, despite best
previous month unless expressed otherwise by intentions, the landlord would incur costs, time
notice. and expense in seeking his remedies.

It is submitted that this position rather favours In a fit of spite, the landlord might decide to take
the tenant. So long as a Tenancy Agreement is the law into his own hands and break into the
“deemed” to subsist, the law affords protection to premise, cut off the power supply, prevent the
the tenant. An added burden is placed on the tenant from entering into the premise and the list
landlord to issue a termination notice allowing for goes on. STOP!
a reasonable amount of time to elapse before ter-
mination taking effect legally. 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
“In a fit of spite, the landlord might stay in the premise, and to prohibit the landlord
decide to take the law into his own from interrupting his stay on the premise. So in-
hands… STOP!” 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
Termination tenant.
The Agreement usually indicates the manner of
which termination of a tenancy should take place. The landlord may be deemed a trespasser for
Prior to such termination, a notice of termination denying the tenant access into the premise. Lock-
or a notice to vacate is usually given to the tenant ing up the premise for non-payment of rent is no
within the time stipulated in the Agreement. If justification in the eyes of the law.
sufficient notice had been given; the landlord has
the right to vacant possession of the premises The amended section 7(2) of the Special Relief Act
without payment of any compensation. If the ten- 1950 relegates remedy for ‘self-help’ to making it
ant so wishes to continue the tenancy beyond its incumbent to the landlord to seek to enforce his
term, the terms of a new tenancy or a renewal right to recover his property by way of a Court
(and a possible rent adjustment) of the previous action alone.
must be mutually agreed upon, failing which the
Tenancy Agreement is considered expired and Landlord’s Remedies
the tenancy granted therein, terminated. The landlord may file a distress proceeding against
the tenant if he wishes to collect his overdue rent-
“Tenants from Hell” al from the tenant. He could also file an eviction
Difficulties arise when in spite of termination, a summons in Court if he wishes to recover vacant
tenant refusing to leave. Termination may have possession of his premises.

For that, an eviction notice must be served to the ing the disclosure of identity, interests, remedies
tenant, giving the tenant certain grace period to for breach of contract, etc. Protection is afforded
handover a vacant possession and pay all overdue to both parties statutorily and one cannot con-
rental. After the expiry of such notice, the land- tract out of these statutory provisions. The UK
lord must take out a court order for eviction. Tenancy Act spells out all the rights, duties, obliga-
Only then can the landlord seal the premises with tions and remedies of the parties that can sum-
the help of the court bailiff (to prevent access and marily be effected without involving distressful,
entry to the delinquent tenant). In such instances, lengthy and convoluted court processes.
the landlord may also claim double rental if the
tenant remains in occupation of the premises In conclusion, until such time as there is a
from the time of the eviction notice until such “Tenancy Act” or the like in a Malaysian context,
time as vacant possession is redelivered. 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
“…be cautious and be prepared to the rights and duties of you and your tenant.
be faced with difficulties…”

By Manisah Saharin
A Call for a Tenancy Act manisah@jhj.com.my
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 NEWSFLASH
of his property.
JHJ is proud to announce another strategic alliance
There is no specific law governing the relationship between:
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
and
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.

Voskamp Lawyers is the largest Dutch legal firm
Having a specific Tenancy Act will no doubt help in the South East Asia region since August 2010,
solve many problems arising from a tenant- specializing in integrated tax and legal advice on
landlord relationship. In the United Kingdom for cross border transactions. Together, we strive to
provide you the assurance and assistance you
example, the Landlord and Tenant Act 1985 con-
need in your overseas business ventures, giving
solidated certain provisions pertinent to both the you peace of mind because We Care.
landlord and the tenant such as matters concern-

SEXUAL HARASSMENT
How Safe Are You At Work?
By Shobana Padmanathan

Have you ever been a victim of offensive sexual and you are uncertain if it was indeed harassment,
remarks or jokes at work? Or has a colleague at- the question to ask is whether the act offended,
tempted to touch you in any way? Were you un- humiliated or intimidated you.
happy about it? If your answer is yes, you are a
victim of sexual harassment. A survey carried out The intention of the harasser is irrelevant so long
in some industrialized countries which have laws as the victim can corroborate the allegation with
specifically governing sexual harassment showed documentary, oral, circumstantial, similar fact, ex-
that 7 out of 10 female employees were sexually trinsic or physical evidence.
harassed at their workplace. Sadly in Malaysia
there is no Act that specifically governs the law Another recognised means of sexual harassment
on sexual harassment. can come in the form of suggestive remarks.
Comments that attack a person’s intelligence and
“A survey…showed that 7 out of 10 capabilities based on his/her gender could amount
female employees were sexually har- to sexual harassment. For instance, a comment
assed at their workplace.” such as “women should be at home raising the
children and not working” can constitute a form
of sexual harassment.
INTRODUCTION
This article aims to outline the law on sexual har- THE LAW IN MALAYSIA
assment at the workplace and the legal remedies Knowing that there is no Act which specifically
available to individuals of a workplace. governs such offences, how then can we seek re-
dress if we have been sexually violated at the
Before we go any further, it is of utmost im- workplace? The victim or complainant may choose
portance to first clarify that sexual harassment to seek legal recourse under the employment law
not only happens to women but also to men, and or alternatively, lodge a police report to press
not only to employees but also to employers. criminal charges against the offender under the
Sexual harassment may happen regardless of it Penal Code.
being a heterosexual or homosexual relationship,
and hence such wide scope will be dissected for Employment Act 1955
better understanding and clarity in the following Recent amendments to the Employment Act 1955
paragraphs. which came into force on 1 April 2012 introduced
the criminalization of sexual harassment in the
WHAT IS SEXUAL HARASSMENT? workplace.
Sexual harassment can be defined as any unwel-
come sexual behaviour that is repeated and inter- The Act introduced Part XVA: Sexual Harassment
feres with your work. If the conduct was subtle alongside a definition of such “act” which coin-


cides with the intensified anti-harassment efforts complainant can refer the matter to the Director-
and pursuits by non-governmental organizations in General who will then have the power to direct
Malaysia. Sexual harassment is now defined in the the employer to address the complaint immedi-
Act as any “unwanted conduct of a sexual nature, ately. Should this fail to provide any remedy to the
whether verbal, non-verbal, visual, gestural or complainant, one may then file an appeal to the
physical, directed at a person; the act which is of- High Court to challenge the Director-General’s
fensive or humiliating or is a threat to his well- decision. In addition to this, if the complaint is
being, arising out of and in the course of his em- made against an employer who is a sole proprie-
ployment.” tor, the Director-General must inquire into the
matter himself.
Section 81A of the amended Act recognised that
a complaint of sexual harassment means a com-
plaint by an employee against another employee / “Sexual harassment not only happens
the employer, or an employer against an employ- to women but also to men.”
ee.

One of the options made available to the com- The employer who is convinced of the occurrence
plainant is that he / she may terminate the con- of the offence (proven from inquiry conducted)
tract of service WITHOUT NOTICE once the may take disciplinary action against the wrongdoer
alleged sexual harassment can be proven before which includes dismissing the wrongdoer employ-
the Director-General. The complainant will then ee without notice, downgrading the employee or
be entitled to wages, termination benefits and in- imposing any other punishment which the employ-
demnity (if any) as if he / she have given notice of er deems fit. If the punishment imposed is suspen-
termination. sion without wages, it must not exceed a period
of two weeks.
THE EMPLOYER’S DUTY
The Act has now made it compulsory for an em- The Act has also imposed a mandatory obligation
ployer to inquire, in the prescribed manner, into a on the employer’s part with regards to this. An
complaint made by a victim immediately upon re- employer who fails or refuse to inquire into a
ceiving it. However, the employer may refuse to complaint and to submit a report of inquiry to the
inquire (with reasons) in writing within 30 days Director-General is deemed to have committed
upon receipt of the complaint. The Act also spec- an offence and if convicted, will be liable to a fine
ified situations in which it is acceptable for the not exceeding RM10,000.00.
employer to refuse to inquire, which are: -
Intentional Tort
1) The complaint has been previously inquired A victim may also bring an action against the
into; wrongdoer under intentional torts. Under this
2) There was no sexual harassment proven; common law doctrine, the victim must prove that
3) The employer feels that the complaint is frivo- the wrongdoer had acted with the specific intent
lous or not made in good faith. to perform the offence. The employer or the or-
Fret not if a complaint has been refused to be in- ganization may also be vicariously liable for the act
quired into. It is not the end of the road. The of the harasser.

Penal Code conferences or training sessions, during work-
The four main sections that deal with the offence related travel, over the phone and through elec-
are (i) Section 354 which provides for assault or tronic media.
use of criminal force to a person with intent to
outrage modesty, (ii) Section 355 which provides This Code will serve as an effective guideline in
for assault or criminal force with intent to dishon- organizations that do not have their own policy in
our a person, otherwise than on grave provoca- place to challenge sexual harassment in the work-
tion, (iii) Section 375 which provides for rape and place.
(iv) Section 509 which provides for word or ges-
ture intended to insult the modesty of a woman. RECOURSE FOR THE AGGRIEVED EM-
PLOYEE (HARASSER)
Code of Practice on the Prevention and The employee who feels that he / she had been
Eradication of Sexual Harassment in the wrongly accused and punished (dismissed) by the
Workplace employer may under section 20 of the Industrial
Act 1967, make representations to the Director-
The Code of Practice on the “Prevention and General for reinstatement and this representation
Eradication of Sexual Harassment in the Work- must be filed within 60 days of the dismissal.
place” came into force in August 1999 under the
purview of the Ministry of Human Resources Ma- CONCLUSION
laysia. The Code encourages employers of both The requirement of adopting the policy statement
public and private sector to implement in-house prohibiting sexual harassment in the workplace is
mechanisms to prevent, handle and eradicate sex- not mandatory under the Employment Act 1955.
ual harassment in the workplace. The in-house
mechanism provided by the Code included a poli- It is the author’s opinion that employers should
cy statement prohibiting sexual harassment in the adopt the in-house mechanism provided by the
organisation, a clear definition of sexual harass- Code, albeit it being a mere guideline, to ensure a
ment, a complaint/ grievance procedure, discipli- safe and conducive working environment for its
nary rules and procedure against the harasser and employees. Any unwelcome behaviour that threat-
those who make false accusations, protective and ens the safety or well-being of an individual at the
remedial measures for the victims and promotion- workplace would not only affect one’s occupation-
al and educational programmes to educate the al health, productivity and morale but also leaves a
company’s employees. long-term effect on the emotional health of the
victim. It is the legal and moral obligation of the
The Code ingeniously stipulated the meaning and employer to safeguard and protect its employees
spheres that encompasses the word “workplace” from avoidable occupational hazards such as this.
in the context of sexual harassment, something
which the amended Employment Act 1955 failed
to consider. Situations under which such employ- By Shobana Padmanathan
ment-related sexual harassment may take place shobana@jhj.com.my
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

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

If you have met with an accident and are suing your insurer, the answer would appear to be a
for damages with regards to personal injury resounding “yes”.
from the wrongdoer, you would want the full
sum of damages according to what you have But in my opinion, it is not so simple. I would
suffered or incurred. argue that S28A applies when a Plaintiff has tak-
en out a Personal Accident policy or a similar
But can you still get the full sum of damages policy and has received payment from his/her
from the wrongdoer (through his insurer) if insurance company. Then I would argue S28A
you are already covered by your own insur- applies and the sum received by the Plaintiff
ance and your insurer had already paid for the cannot be taken into account when determining
medical expenses or have paid you for the quantum if he met with an accident.
same? Can you have both, damages claim from
the wrongdoer, and monies from your own in- However if the Plaintiff had taken out a Hospi-
surer? talisation policy, then I would argue that S28A
would not apply. And if his insurers have paid
‘…the answer would appear to be a under the Hospitalisation policy, then the Plain-
resounding “yes”. But…it is not so tiff would not be entitled to claim for the same
simple.’ medical expenses from the wrongdoer.

The case of Ward v Malaysian Airlines Sys-
The relevant law in this regard is section 28A tem Bhd [1991] 3 MLJ 317, seem to adopt
(1) (a) of Civil Law Act 1956 (“the Act”) this position. In this case, the court held that
which provides that in assessing damages re- considering the nature of an insurance policy
coverable for non-fatal personal injury, no de- scheme, the insurance benefits were not de-
duction should be made to any sum paid or ductible under section 28A (1) (a) of the Act.
payable in respect of such personal injury un- The words used in that section should be inter-
der any contract of assurance or insurance, re- preted in its plain and ordinary meaning. By
gardless whether it was made before or after adopting a strict rule of interpretation, our Par-
the coming into force of this Act. liament in its wisdom had made it crystal clear
that any sum paid or is payable in respect of a
This simply means that the court, in calculating non-fatal personal injury under any contract of
damages to be awarded to you by the wrong- assurance or insurance shall not be taken into
doer, must not deduct any sum paid that is account in assessing damages.
payable by your insurer. Thus in answering the
above question of whether you are entitled to The case of Sin Hock Soon Transport Sdn
get both, damages from the wrongdoer and, Bhd & Anor v Low King Ban [2006] 3 MLJ


174 echoed Ward’s case and held that where 28A (1) (a) applies; whilst in the present case,
the employer was the party who paid for the the Plaintiff was seeking special damages which
premium under the contract of employment, should be the amount spent by the Plaintiff
damages awarded and received by the Plaintiff himself and hence the section does not apply.
should not be deducted. However in the in- Furthermore, if the claim was allowed, it would
stant appeal, the respondent himself purchased enrich the Plaintiff out of his misfortune, and
the policy and paid for the premiums. By apply- this would be contrary to the universal rule
ing the principles as enunciated in Ward's case, that one is not allowed to recover something
the respondent was clearly entitled to the in- which he has not lost. Therefore the medical
surance monies paid under his own insurance bill paid by the Plaintiff’s insurer in this case
coverage and also the special damages awarded was deducted from the damages awarded.
by way of his claims against the appellants.
“…if the claim was allowed, it would
However prior to Sin Hock’s case [supra], the
enrich the Plaintiff out of his misfor-
courts held in the case of Khairul Sham bin
tune…”
Ahmad & Anor v Yesudass a/l Michaelsamy
[2005] 2 MLJ 679 that the Plaintiff cannot
claim for medical expenses paid by the insur- Even though section 28A (1) (a) does not state
ance company as the rights to recover the whether the word “damages” is one under the
medical expenses lies in the hands of his insur- head of general or special damages, this case
er. The medical expenses of RM30,000 award- made it clear that medical expenses or any
ed by the learned Sessions Court judge had expenses that have been paid by the
simply enriched the Plaintiff. This enrichment Plaintiff’s own insurance are deductible in
violated the philosophy behind the principle of calculating the damages.
compensatory damages upheld in this country.
Therefore such an award should not be al- Hence you are unlikely to be able to claim or
lowed. the expenses that have been paid or are paya-
ble by your insurance.
Until recently, the question as to whether one
would be entitled to claim for damages from As for general damages or damages for pain
the wrongdoer in addition to receiving insur- and suffering, Ward’s case stands. You may get
ance monies from his own insurer pursuant to a full sum of damages even if your own insurer
a hospitalisation policy still remained unclear has paid you.
until the recent Court of Appeal decision in
the case below was made.
By Siti Khadijah Md Yunus
The judge in Sathisvaran a/l Chandrasegaran sitikhadijah@jhj.com.my
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

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