Category: The Attorney

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In May 2023, the Home Ministry conducted raids on several outlets of a popular Swiss watch brand, Swatch. It has been reported that more than 150 watches were seized under the Printing Presses and Publications Act 1984 (“PPPA”).

The Home Minister has since attempted to justify these seizures, saying that the watches featured inscribed references to minority sexual and gender identities. However, Swatch Group is reported to have said that the watches seized by the Home Ministry were part of the Swiss watchmaker’s “Pride Collection” which was designed to honour the pride movement and its message of equality and diversity.

The PPPA is a law to regulate matters relating to printing presses and publications. Aside from written and audio publications, the PPPA covers any visible representation or anything capable of suggesting words or ideas.[1]

The Home Ministry seems to be taking wide and unusual interpretation that a watch (or its component) is a “publication”. The use of the PPPA should not be extended with a never-ending reach. Surely, a line ought to be drawn between a book and the design on a watch dial. No stretch of imagination is needed to see how the PPPA might apply to a book publisher. As to the seized Swatch watches, it is baffling that a law intended to control printing presses and publications could be used to seize fashion accessories, which are of a different product category entirely.

Prior to this incident, there have been calls for the PPPA to be repealed due to fears that the Home Minister’s wide powers pose a threat to freedom of expression.[2]

Even if the Home Ministry is able to show that watches are governed by the PPPA, the Home Ministry can only seize publications after an order of prohibition has been issued. The law allows the Home Minister to prohibit publications that go against public order, morality, security, public interest or national interest, which are called “undesirable publications”. Once the Home Minister prohibits these undesirable publications, the law allows authorities to search for and seize these undesirable publications.

As at the time of writing this article, it would appear that no such order of prohibition has been made. Hence, the seized Swatch watches cannot be said to be undesirable publications and should not be prohibited from sale.

Putting the procedural aspect aside, the core issue is whether there is any basis to declare that the seized Swatch watches are undesirable publications. Even though the law grants the Home Minister wide powers to do so, the law does not allow unreasonable exercise of these powers. In such situations, it is possible to review the decision of the Home Minister through a court process called Judicial Review.

This has been done in the past, for example when the Home Minister prohibited 4 books written by an academician on the basis that those books were prejudicial to public order and security.[3] In an appeal from a Judicial Review, the Court of Appeal noted that there was no evidence that the publication of those books had caused any chaos or disorder in the country, despite having been in circulation. The Court of Appeal went on to declare that the Home Minister’s order of prohibition was illegal and highlighted that fundamental rights could only be suppressed in the clearest case of potential prejudice to public order.

As it appears now, the Home Ministry’s storming actions against Swatch are questionable. It is high time that the reign of draconian laws such as the PPPA are reviewed. Until then, the cloud of the PPPA will continue to loom over, leaving many patiently awaiting the rainbow after the storm.

[1] S. 2, Printing Presses and Publications Act 1984

[2] Saifuddin slammed for U-turn on Printing Presses and Publications Act, Free Malaysia Today (https://www.freemalaysiatoday.com/category/nation/2023/04/13/saifuddin-slammed-for-u-turn-on-printing-presses-and-publications-act/)

[3] [2018] 9 CLJ 496

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About the Author

Sahain is a Legal Associate of XK Law. He graduated with Honours from the National University of Malaysia. Sahain believes that the legal fraternity plays an integral part in the operation of the rule of law in Malaysia and is keen to utilise his legal education towards the betterment of society and the country.

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Disclaimer: This post is not intended as a solicitation, is not legal advice, and is not a substitute for obtaining legal advice. You should not act upon any such information without first seeking qualified professional counsel on your specific matter

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Being a former English colony, many Malaysians are able to converse in English. More than 60 years since independence, we have become accustomed to the use of Malay (or the national language) in almost all official government business, including letters or announcements from government bodies. However, many Malaysians would be surprised to learn that Malay is not necessarily the official language (authoritative text) for all of our laws.

Depending on when the law was passed and whether the law has been translated, the official language of a law may either be English or Malay. Despite Malay being the National Language[1], there are still many laws that have not been translated into Malay, leaving the English text as the official language. These include the Penal Code, Criminal Procedure Code, National Land Code, Evidence Act 1950, Contracts Act 1950 and Aboriginal Peoples Act 1954.

Under the National Language Acts 1963/1967, the official language for all laws passed before 1 September 1967 would be the language the law was made in (which would usually have been English).[2] The reason for this is that the Federal Constitution provides that for 10 years after Merdeka day, the official language for all laws passed is still English.[3]

The Yang di-Pertuan Agong, acting on the advice of the Prime Minister, may order that the Malay translation of these laws be made the official language.  Examples of this include the Nurses Act 1950[4], Elections Act 1958[5] and Statutory Declarations Act 1960[6], for which the official language is now Malay.

For all laws passed after 1 September 1967, the official language is Malay.[7] However, the Yang di-Pertuan Agong, retains the power to order that English be the official language for laws passed even after 1 September 1967.[8] Examples include the Arbitration Act 2005[9], Trademarks Act 2019[10], and Competition Act 2010[11], for which the official language is English.

It is important to note that English being the official language of our laws, is not a thing of the past. In fact, as recent as 2022, the Yang di-Pertuan Agong ordered the official language for the Patents Act 1983, Copyright Act 1987 and Limited Liability Partnerships Act 2012 to be English, despite the laws having previously been made in Malay.

While our colonial history may have laid down the historical context for Malaysian laws being in the English language, that is no longer the case in this present day. Many parts of the law continue to be in English, despite English may not be the first language for many Malaysians.

[1] Article 152(1), Federal Constitution

[2] Section 7, National Language Acts 1963/1967

[3] Article 152(3), Federal Constitution

[4] PU(B) 197/1994

[5] PU(B) 197/1994

[6] PU(B) 197/1994

[7] Section 6, National Language Acts 1963/1967

[8] Section 6, National Language Acts 1963/1967

[9] PU(B) 675/2021

[10] PU(B) 654/2019

[11] PU(B) 675/2021

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About the Author

Sahain is a Legal Associate of XK Law. He graduated with Honours from the National University of Malaysia. Sahain believes that the legal fraternity plays an integral part in the operation of the rule of law in Malaysia and is keen to utilise his legal education towards the betterment of society and the country.

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Disclaimer: This post is not intended as a solicitation, is not legal advice, and is not a substitute for obtaining legal advice. You should not act upon any such information without first seeking qualified professional counsel on your specific matter

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Imagine you’re driving back home. It’s 3.00 am. The road is clear or is supposedly clear. The lights are dim, almost non-existent. You start to wonder if you should pay more taxes to keep the street lights on. You’re taking it nice and slow and squinting your eyes to get a better view of the road ahead. Then out of nowhere, 30 silhouettes on bicycles suddenly appear in front of you. The worst happens. Unfortunately, there were serious casualties.

At this juncture, ask yourself – does it matter who you are and what you look like? Exactly. It doesn’t, and it shouldn’t be to Sam Ke Ting, the then 22-year-old driver of the car that tragically collided into 30 teenagers riding “basikal lajak,” i.e. illegally-modified bicycles with handlebars level with the seat, instantly killing eight and injuring eight others.

Following investigations, Sam Ke Ting was charged in early 2017 under Section 4(1) of the Road Transport Act 1987 at the Johor Bahru Magistrate’s Court. In essence, the charge accused Sam Ke Ting of driving recklessly or dangerously causing the death of the eight teens.

After several days of trial, the Magistrate found that the Prosecution failed to establish its case beyond reasonable doubt, and it was unsafe to convict Sam Ke Ting. She was acquitted.

The Prosecution then appealed to the High Court, and it was allowed. The High Court overruled the Magistrate’s decision and Sam Ke Ting was sentenced to six years imprisonment and a RM6,000 fine.

Sam Ke Ting appealed to the Court of Appeal and in April 2023, the Court of Appeal unanimously ruled that the charge levied against her was defective. The High Court’s decision was set aside and Sam Ke Ting was acquitted of the charge.

The Court of Appeal was of the view that there was a duplicity in the charge i.e. driving recklessly OR driving dangerously causing death. Basically, there were two charges lumped together into one charge. Legally speaking, this is not proper. Section 163 of the Criminal Code Procedure Code states that each charge must be specific and must only set out one offence.

Whilst at first glance, this seems like a technical point, it struck at the core of the charge. The law provides that an accused has the right to know with absolute clarity what he/she is being charged with, otherwise he/she would be left guessing not knowing exactly what to defend him/herself against.

Furthermore, the Prosecution did admit that there was a flaw in the charge but attempted to argue that the flaw did not prejudice Sam Ke Ting. The Court of Appeal rejected the argument.

You may wonder why was there no further appeal to the Federal Court, the highest court of the land? This is because under the Malaysian legal system, there are only two tiers of appeals available. A Magistrate’s Court is a subordinate court. Any appeal from here will be heard by the High Court, followed by a second appeal at the Court of Appeal. Simply put, both of tiers of appeal had been exhausted.

The Court of Appeal ordered that justice be served, and it was. It was a long wait for Sam Ke Ting whose future remains lit despite the scar this ordeal may have caused her. In the end, it was not a trial of empathy; it was a trial by law. It may seem cold, but it is justice.

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About the Author

Afiq Iskandar is a Legal Associate of XK Law. He graduated from MARA University of Technology, Malaysia. Afiq has multiple interests in life beyond reading law viz. sports, film, music and poetry. He believes that art, in whatever form they may be, is a necessity of life.

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Disclaimer: This post is not intended as a solicitation, is not legal advice, and is not a substitute for obtaining legal advice. You should not act upon any such information without first seeking qualified professional counsel on your specific matter

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It cannot be denied that Malaysians love public holidays, more so when a public holiday is announced unexpectedly by the government. The nation could almost collectively be heard squealing in delight when the Prime Minister announced the additional public holiday in conjunction with the 2023 Hari Raya Aidilfitri celebration. Another instance was when 28 November 2022 was declared a public holiday, following the 15^th General Election.

While Malaysians welcome impromptu public holiday announcements with open arms, have you ever wondered whether your employer is bound to observe these unexpected public holidays?

Firstly, it is interesting to note that among the public holidays in Malaysia, there are only 11 gazetted public holidays under First Schedule of the Holidays Act 1951:

• Birthday of the Prophet Muhammad (s.a.w.)
• Chinese New Year
• Wesak Day
• Birthday of the Yang di-Pertuan Agong
• Hari Raya Puasa (2 days)
• Hari Raya Haji
• National Day
• Malaysia Day
• Deepavali
• Christmas Day.

Section 8 of the Holidays Act 1951 provides that the Minister may appoint a day to be observed as a public holiday in addition to or in substitution for the 11 gazetted public holidays. This section is therefore relied upon for the announcement of any impromptu public holidays by the government.

Section 60D of the Employment Act 1955 provides that every employee[1] is entitled to the 11 gazetted public holidays (5 of which must be the National Day, Birthday of the Yang di-Pertuan Agong, Birthday of the Ruler or the Yang di-Pertua Negeri or Federal Territory Day, Labour Day and Malaysia Day) and any day declared by the Minister as a public holiday for that particular year under Section 8 of the Holidays Act 1951.

Thus, employers are required to recognise the impromptu public holidays declared under Section 8 of the Holidays Act 1951. Nonetheless, if an employer does not wish to observe it on that particular day i.e. you are asked to work anyway, your employer must pay you two days’ wages (in addition to that day’s wage). Alternatively, your employer may choose to grant you any other day as a paid public holiday in substitution.

Be careful though not to confuse the above gazetted holidays with all other public holidays that do not fall under Section 8 i.e. non-gazetted public holidays, such as New Years Day, Thaipusam, Nuzul Al-Quran, Labour Day, or some state-level holidays, to name just a few. For these your employer is not compelled by law to observe it. This means, you could be asked to go to work, and you would have to.

To conclude, while the 11 gazetted public holidays must be observed by your employer on those particular days, the impromptu public holiday is subject to your employer’s discretion. But if your employer is one of those few that simply recognises ALL public holidays, regardless if it is gazetted or not, then count your lucky stars!

[1] Note: An employee is defined under the amended First Schedule of the Employment Act 1955 as among others, “any person who has entered into a contract of service”

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About the Author

Poon Wei Ying is a Senior Associate of XK Law who graduated with First Class Honours from the Cardiff University, United Kingdom. She believes in giving back to the society and that education can change a person’s life.

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Disclaimer: This post is not intended as a solicitation, is not legal advice, and is not a substitute for obtaining legal advice. You should not act upon any such information without first seeking qualified professional counsel on your specific matter

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There has been a steady stream of media reports of people faking Covid-19 test results. One such report was about a construction worker who craftily doctored a picture of his self-test kit result using a photo-editing software.

See: https://www.therakyatpost.com/news/malaysia/2022/03/19/a-new-norm-employees-faking-covid-19-illness-to-get-out-of-work/

Some employees have resorted to uploading fake positive results to obtain the Home Surveillance Order which is automatically issued in an employee’s MySejahtera App, effectively getting a 7 to 10 days netflix-fuelled paid holiday at home. Others choose to falsify negative results to enable travel and to avoid being stopped at building entrances.  And yet there are others who use an earlier test result to pass it off as a test done on the day it is actually used.

Let’s be clear about this – it is a criminal offence to falsify any Covid-19 test result or certificate.

Section 21(d) of the Prevention & Control of Diseases Act 1988 makes it an offence to furnish false information, punishable by imprisonment of up to 2 years or a fine or both. This offence is committed when the false test result is uploaded into the MySejahtera App, effectively furnishing the Ministry of Health with false information. A similar offence is also provided for in Section 177 of the Penal Code.

In a situation where a fake PCR / RTK test certificate is created, the person who cleverly prepared it commits an offence of forgery under Section 463 of the Penal Code, while the person who foolishly used it commits an offence under Section 471. Both may have an opportunity under Section 465 to spend quality time together locked down behind bars for up to 2 years or a fine or both.

This is not to even mention that employees who indulge in such criminal acts could be subjected to disciplinary action as well as be in breach of their employment contract, which may result in termination.

Clearly, it is not a question of whether it is technically possible to create such fake test results / certificates – software has made this entirely possible. The real question is whether one ought to engage in such criminal activities? Is it worth the 7 to 10 days holiday or travel when one’s reputation, employment and even liberty could all be lost by the click of a button?

I suggest that you don’t test the law on this.

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About the Author

Xavier is a Founding Partner of XK Law. He graduated with Honours from the University of London, United Kingdom. Xavier is passionate about combating injustice and loves doing so though his legal work.

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Disclaimer: This post is not intended as a solicitation, is not legal advice, and is not a substitute for obtaining legal advice. You should not act upon any such information without first seeking qualified professional counsel on your specific matter

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Have you ever tried returning a product you purchased, but was not allowed to? Were you turned away by the store’s customer service on grounds that the store practiced a “no return or refund” policy?

The law generally permits such “no return or refund” policies to exist. However, such policies are only valid in law if two main conditions are satisfied. Otherwise, such a policy is not valid and the customer can insist that the product be returned / money refunded.

The first condition is that the customer must be informed of the policy BEFORE the purchase was made – not after the purchase. For this reason, the courts have struck down such a policy where it is only stated on the receipt, which is given to the customer only AFTER payment is made – see the Federal Court case of Dream Property Sdn Bhd v Atlas Housing Sdn Bhd [2015] 2 MLJ 441.

The second condition is that the product purchased must be of “acceptable quality” – see Section 32 Consumer Protection Act 1999. Note that this does not mean that the product must be perfect or as good as new. Factors such as the product being second-hand, or that the product was heavily discounted / on sale, or that the “irregularity” or “imperfection” was pointed out to the customer before he/she bought it, are all taken into account when assessing if the product is of “acceptable quality”. Where it is not, the second condition is not satisfied.

Notwithstanding the two conditions, Sections 24A – 24I of the Consumer Protection Act 1999 grants the court the general power to strike down a term in a contract that is “unfair” and thus void or unenforceable – including a no return / no refund term.

This usually applies in situations where the seller and purchaser actually sign a contract for the item sold/purchased (usually big-ticket items), as opposed to buying something over a counter. The court is more likely to exercise this power if the unfair term is part of a standard form contract prepared by the seller and which the purchaser had no real choice but to accept – see the case of Su Tiang Joo v Tribunal for Consumer Claims & Anor [2020] MLJU 1035)

So next time you are told by a seller that you cannot return a product or that a refund is not possible, stop for a moment and ask yourself if such a policy is valid in law. Apply the two conditions, and if you find that the two conditions are not satisfied, pluck up some courage and politely but firmly inform the seller that the store’s “no return / no refund” policy is illegal.

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About the Author

Kenneth is a Founding Partner of XK Law. He graduated with honours from the University of London, United Kingdom.  He is driven by a passion to give voice to the voiceless and does this through his practice.

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Disclaimer: This post is not intended as a solicitation, is not legal advice, and is not a substitute for obtaining legal advice. You should not act upon any such information without first seeking qualified professional counsel on your specific matter.

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Muhammad Sajjad Kamaruz Zaman, or “Sajat” is back in the news again, this time over her legal gender identity.

Sajat had recently posted on her Instagram account that she was now legally a woman in Australia. In reply, Deputy Minister in the Prime Minister’s Department (Religious Affairs), Datuk Ahmad Marzuk Shaary reiterated that Sajat remains a male in Malaysia.

So, which is true? Is Sajat legally male or female?

The operative word here is “legal”. Believe it or not, whether one is legally male or female largely depend on where that person resides.

In New South Wales, Australia, a person’s gender identity may be legally changed. Under the Births, Deaths and Marriages Registration Act 1995 No 62, if one has had a sex affirmation procedure (surgical procedure altering a person’s reproductive organs), that person can apply to register as a male, female or intersex – regardless of the gender assigned during birth.

In Malaysia however, the alteration of one’s gender is not legally possible or recognised under the Births and Deaths Registration Act 1957 – even if medically possible. Here, a person’s gender is assigned at birth solely by reference to the baby’s biological characteristics. And it is permanent.

The issue of whether one can legally change his/her gender has been litigated in Malaysian courts. However, almost all the local court’s decisions were not in favour of gender reassignment.

A glimmer of hope appeared in 2016, when High Court Judge S Nantha Balan ruled in favour of a transgender (female to male) in the case of Tan Pooi Yee v Secretary General of the National Registration Department (NRD), ordering the NRD to change the personal details in his Tan’s identity card to reflect the male gender. The High Court Judge held: –

“The Plaintiff has a precious constitutional right to life under Article 5(1) of the Federal Constitution and the concept of ‘life’ under Article 5 must necessarily encompass the Plaintiff’s right to live with dignity as a male and be legally accorded judicial recognition as a male….In my view, the chromosomal requirement is archaic and should be discarded….The male XY and female XX chromosome will remain static throughout the individual’s natural life. To insist on the “chromosomal requirement is to ask for the impossible”

Unfortunately, this decision was however subsequently overturned on appeal.

In conclusion, Sajat is legally a male in Malaysia but female in Australia. Strange but legally true.

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About the Author

Xavier is a Founding Partner of XK Law. He graduated with Honours from the University of London, United Kingdom. Xavier is passionate about combating injustice and loves doing so though his legal work.

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Disclaimer: This post is not intended as a solicitation, is not legal advice, and is not a substitute for obtaining legal advice. You should not act upon any such information without first seeking qualified professional counsel on your specific matter

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Roses, chocolates, and expensive candlelight dinners.

For many love-struck couples, these would have been the order of the day yesterday, Valentines Day. Much would have been spent, whether in terms of time, effort and money.

For some couples, yesterday would have also been the day when the man (or woman) proposed his/her desire to marry his/her lover, complete with a glimmering diamond ring, rehearsed lovey-dovey words plucked from the internet and tears of joy shed!

Soon enough family and friends are informed, plans are made, bookings secured and a whole lot of money is spent on planning for a never-to-forget glamorous wedding.

Now, life is such that not all things go as planned. The challenges and stresses of being a couple can be too much for some. And then the dreaded thing happens – he / she calls it all off. The engagement is off, the wedding is off, the relationship is toast.

Apart from the sting of a painful heartbreak, the affected party (i.e. the one who is informed of the break-up) may also feel wronged financially. He/she then begins to wonder if legal action may be brought against the other party to recoup these losses.

This may come as a surprise to many, but the answer is yes. One may sue and secure damages (compensation) for a breach of promise to marry. In Doris Rodrigues v Bela Krishnan [1982] 2 MLJ 77, the defendant refused to marry the plaintiff after they got engaged and lived together for several years. The defendant instead went on to marry another woman. The High Court allowed the plaintiff’s claim for breach of a promise to marry.

The legal action is rooted in contract law where a promise to marry, and an acceptance of the same by the other creates a binding contract in law. This contract need not be in writing, but there must be evidence to show that such a promise was made in the first place. Given this age of social media where everything is readily announced online to the entire world, obtaining such evidence should not be very difficult.

But crucially, the party who suffers from the breach, must show that he/she gave consideration for the promise to marry. For example, he/she spent money planning for the wedding, or put a down payment for the matrimonial home or generally took other steps in reliance on that promise to marry. In R.S. Thanalachimi v Sundararaju A/L Mattaya [2010] MLJU 1339, the High Court took into account that the plaintiff had rejected other marriage proposals in favour of the defendant, gave up her home and career overseas to be with the defendant and agreed to engage in sexual intimacy with the defendant following the engagement ceremony.

Where it is properly proven in court that the promise to marry was made and breached, the party who suffered the breach is entitled to damages. In the English Court of Appeal case of Quirk v. Thomas (1916) 1 KB 516, it was held that damages may even be awarded for “injury to the wounded feelings and pride”. This is over and above losses suffered flowing from expenditures incurred in reliance of that promise to marry. In R.S. Thanalachimi (supra), the High Court awarded the plaintiff RM171,936.30 in damages.

So, while it entirely good to hope for a happy-ever-after life together with your lover following an engagement, it may be prudent (even if a little cringy) to take the necessary steps to record and retain evidence of that promise to marry, whether by way of photos, or text messages exchanged, or even a list of witnesses, so that if things go south (god forbid of course!), you are armed with sufficient evidence to show that it is his/her loss for walking out on you.

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About the Author

Xavier is a Founding Partner of XK Law. He graduated with Honours from the University of London, United Kingdom. Xavier is passionate about combating injustice and loves doing so though his legal work.

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Disclaimer: This post is not intended as a solicitation, is not legal advice, and is not a substitute for obtaining legal advice. You should not act upon any such information without first seeking qualified professional counsel on your specific matter

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Many of us have had to endure punishment of various kinds while in school or at home. The same goes for me given my propensity to test the rules and argue my point vehemently. Punishments ranged from being made to write those dreaded 500x “I will behave” lines to standing outside the classroom in the afternoon heat.

However, never in my wildest dreams did I imagine that a student could be punished by washing him/her down in a mortuary like a “corpse” with a hosepipe and camphor while having his face covered with a cloth! This is what reportedly happened to Daniel Iskandar Mohd Nasir, a teenager. He was apparently punished so by the Imam of the mosque for allegedly stealing money from the mosque donation box.

The mosque committee members have come out publicly to justify the Imam’s action saying that they did not see this as a form of abuse and that they wanted to teach the teen a lesson.

Regardless of the mosque committee’s views, did the Imam commit a criminal offence under Malaysia laws by imposing this unusual punishment on Daniel?

Section 352 of the Penal Code makes it a criminal offence for anyone to use criminal force on another person otherwise than on grave and sudden provocation. Section 350 defines criminal force as inter alia, the intentional use of force on any person, without that person’s consent, intending by the use of such force illegally to cause / knowing it is likely to cause injury, fear or annoyance to the person who the force is used.

Now, we know from press reports that the punishment was meted out intentionally – the committee members did not deny it and in fact went on to publicly say they have nothing to apologise for.

Well, did Daniel consent to be punished in such a humiliating, if not dangerous way? We don’t know but more likely than not, he did not consent given that no one would want to be punished this way.

Would Daniel have been in fear at the time of the punishment? Well, one could take an educated guess that he was absolutely terrified at what was happening to him.

If the above is true and the facts are proven in a court trial, then the Imam may be convicted for criminal assault under section 352.

Could the Imam argue in his defence that he was under a “grave and sudden provocation” caused by Daniel’s act of stealing? This is not likely to be persuasive, given the age difference and the position of authority that the Imam held vis-a-vis the teenager.

If Daniel had indeed stolen money from the mosque, the Imam should have reported it to the Police. And indeed Daniel has been dealt with by the law – the Shah Alam High Court has sentenced him to 120 hours of community service. The Imam should not have taken the law into his own hands.

What is important here is due process and the upholding of the rule of law. If a police report has been made against the Imam, the Police have a duty to investigate. If evidence of wrongdoing is uncovered during the investigation, then the Attorney General Chambers ought to file charges against the Imam. No one is above the law and this has nothing to do with religion or position in any institution.

While it is uncertain if any criminal action would be taken against the Imam, what is certain is that if at all the Imam is charged and found guilty by a criminal court, he can rest assured that he would not be punished under the law in the same degrading and humiliating manner he punished Daniel.

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About the Author

Xavier is a Founding Partner of XK Law. He graduated with Honours from the University of London, United Kingdom. Xavier is passionate about combating injustice and loves doing so though his legal work.

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Disclaimer: This post is not intended as a solicitation, is not legal advice, and is not a substitute for obtaining legal advice. You should not act upon any such information without first seeking qualified professional counsel on your specific matter

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We’ve all seen the signs when we walk into shops selling breakable items, some larger than others, some more creatively worded than others, all essentially meaning to say the same thing – if you accidentally break an item, you will have to pay for it!

What happens if a customer refuses to pay for the broken item nonetheless despite there being clear signs plastered all around the shop notifying him that he has to? What legal recourse does the shop have to claim the purchase price of the item from the customer?

The shop may sue the customer for breach of contract, but it would be hard to argue that there existed an agreement for the purchase of the item in the first place! The shop could argue that an agreement existed when the customer walked into the shop and agreed to pay for any item he breaks, but that would be near impossible to prove in court – I would think that a requirement for customers to sign an agreement to such an effect before walking into a shop would deter customers from even stepping in! Thus, if there is no ‘meeting of the minds’, a contract – whether oral or written – cannot be said to be in existence (Deutsche Bank (M) Bhd v MBf Holdings Bhd & Anor [2015] 6 MLJ 310).

The shop could sue the customer under tort where the existence of a contract between parties fails to be proven. Here, the shop would have to prove that the customer owes the shop a duty of care to ensure to not break anything in the shop, and in being negligent, he breached his duty of care, had broken the item, thereby causing loss to the shop. Assuming the shop succeeds in proving the above and the shop is not contributorily negligent for the incident, the shop would be able to claim for its losses as if the item was not broken in the first place (not as if the customer had bought the item – note the difference), meaning the customer would be liable to pay the shop the cost price of the broken item (not the retail price displayed) (Pan Malaysian Pools Sdn Bhd v Kwan Tat Thai & Anor and other appeals [2018] 4 MLJ 461).

The shop could always make a police report, as the customer might be guilty of the offence of ‘Mischief’ as per s.425 of the Penal Code if he had, “with intent to cause, or knowing that he is likely to cause, wrongful loss or damage to the public or any person, causes the destruction of any property, or any such change in any property, or in the situation thereof, as destroys or diminishes its value or utility, or affects it injuriously”. Whilst this route may not result in the shop being compensated for its losses, it may cause the customer a lot of inconvenience and a criminal record if convicted!

So next time you walk into a shop, be very careful how you handle the items sold in the shop.

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About the Author

Kenneth is a Founding Partner of XK Law. He graduated with honours from the University of London, United Kingdom. He is driven by a passion to give voice to the voiceless and does this through his practice.

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Disclaimer: This post is not intended as a solicitation, is not legal advice, and is not a substitute for obtaining legal advice. You should not act upon any such information without first seeking qualified professional counsel on your specific matter

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