Ling Towi Sing @Ling Chooi Sieng v Sino America Tours Corporation Pte Ltd (W-02(NCC)(W)-1107-06/2019)

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1 of 49 DALAM MAHKAMAH RAYUAN DI MALAYSIA (DALAM BIDANGKUASA RAYUAN) RAYUAN SIVIL NO.: W-02(NCC)(W)-1107-06/2019

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(1) The Court of Appeal shall have jurisdiction to hear and determine appeals from any judgment or order of any High Court in any civil cause or matter, whether made in the exercise of its original or of its appellate jurisdiction, subject nevertheless to this or any other written law regulating the terms and conditions upon which such appeals shall be brought. 8 of 49 [20] We are of the view that s. 67(1) of the CJA 1964 clearly provides that a litigant has the right of appeal to appeal against “any judgment or order of any High Court”. It is therefore trite that such an appeal must be filed pursuant to r. 5 of the RCA 1994. ….. [23] We are of the view that under r. 8 of the RCA 1994 the first defendant cannot set aside the substantive finding of facts made by the High Court by way of notice of cross-appeal. The first defendant may only set aside the substantive findings of the High Court by way of filing a notice of appeal under r. 5 of the RCA 1994. Only an appeal by way of a notice of appeal constitutes a re-hearing. Rule 8 of the RCA 1994 does not state that a notice of cross-appeal “... shall be by way of re-hearing”. Rule 8 of the RCA 1994 only provides that a respondent could only contend that the decision of the High Court should be varied if the respondent files the notice of cross-appeal within ten days after the service of the record of appeal. …… [26] The notice of appeal filed by the appellant shall comply with Form 1, which contains the words “being dissatisfied with the decision(s)” of the judge. On the other hand the notice of cross-appeal shall comply with form 2, which contains the words of “will contend that the decision(s)” of the judge “ought to be varied to the extent and on the grounds hereinafter set out.” (emphasis added) [17] The propositions to be gleaned from the above case can be stated as follows:

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(1) A party seeking to reverse or set aside a finding adverse to him should have filed a separate notice of appeal; 9 of 49

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(2) A notice of cross-appeal cannot set aside the substantive finding of facts made by the High Court;

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(3) Where a respondent wishes to raise matters which are unconnected with the substance of the appeal by the appellant, the respondent must proceed by way of a separate notice of appeal. [18] We agree with learned counsel for the appellants that the issues of non-payment by the respondent of the purchase price of the shares and that of the locus of the appellants as plaintiffs in the High Court below to bring the action are issues unrelated to that of limitation and so the respondent/defendant has to file a Notice of Appeal and not a Notice of Cross-appeal. [19] There was no Notice of Appeal filed and the Notice via Letter is not a proper appeal filed for the purpose of challenging the High Court’s finding of fact and interpretation of the law on locus standi. The Notice via Letter is not a competent appeal and hence this Court cannot entertain the respondent’s attempt to set aside the finding of fact on the issue of the debt being due and owing but for limitation having set in and the issue of the appellants/plaintiffs having the proper locus to prosecute the claim. 10 of 49 Whether the issue of limitation may be decided afresh by the trial Judge hearing the parties when the previous Judge hearing the application to strike out the appellants’ claim had found against the respondent on that issue [20] There is some history to the current appeal in that there was a previous appeal to this Court of Appeal by the same appellants who were the plaintiffs in the High Court. The narration of the relevant applications and decisions are set out below as summarised by the appellants in their written submission to this Court. [21] There was an earlier application on 20.8.2015 by the respondent who as defendant applied to strike out the plaintiffs’ claim on two grounds namely that limitation had set in and that the plaintiffs did not have the capacity to initiate and file the action as they were not the litigation representative as required by Order 76 rule 2(1) of the Rules of Court 2012 (“ROC”). [22] The learned Judge hearing the application then, allowed the defendant’s application on 18.1.2016 and struck out the plaintiffs’ writ and statement of claim on ground that there was a failure of the plaintiffs to comply with Order 76 rule 2(1) ROC as the plaintiffs were not the legal representative of Dato’ Ng as required under that provision but are only the next friend or guardian ad litem of Dato’ Ng. [23] However, on the issue of limitation, the learned Judge held that the six years should run from the granting of the Committee Order which was on 6.12.2013 and since the plaintiffs’ claim was filed on 29.4.2015 it was filed well within the time and certainly not time-barred. 11 of 49 [24] The plaintiffs then as appellants appealed to the Court of Appeal and the then solicitors for the respondent also filed a motion for extension of time to cross-appeal against the learned Judge’s findings in the Striking Out Decision which motion was dismissed on 1.11.2016. [25] The Court of Appeal heard the appellants’ appeal against the Striking Out Decision and allowed the appeal. As there was no appeal on the issue of limitation, it was not an issue before the Court of Appeal. The Court of Appeal held that under the MHA there is a specific mechanism for a committee or committee of persons to be appointed by the Court to manage the mentally disordered person who is incapable of managing himself or his affairs due to his mental disorder. [26] The Court of Appeal further held that the Committee Order empowered them to act as the next friend of Dato’ Ng in legal proceedings to be instituted against such person who may be liable to Dato’ Ng or his estate and to act as next friend or guardian ad litem of Dato’ Ng in legal proceedings generally. [27] The Court of Appeal further held that the MHA is a substantive law in an Act of Parliament which must prevail over a subsidiary legislation in the form of Order 76 rule 2(1) of the ROC which is only procedural law. It further held that the Committee Order, unless set aside, is a valid and good order and ought to be honoured by the Court. [28] The Court of Appeal opined that Order 76 rule 2(1) of the ROC was not to create or to cause obstructions as the said order was intended to give access to justice especially to the person who is not able to manage himself or his affairs in view of the mental disorder. Relying on another 12 of 49 Court of Appeal case of Ziko Abbo v Ketua Polid Daerah Bau, Kuching, Sarawak [2011] 3 CLJ 76, the Court of Appeal had that the order “belongs to a species of social legislation which must be construed literally in favour of the patient.” [29] The Court of Appeal thus concluded that the learned High Court Judge (as he then was) was plainly wrong in having struck out the appellants’ case based on the sole ground that the appellants were not clothed with the necessary locus to initiate the proceedings on ground of non-compliance with Order 76 rule 2(1) of the ROC. [30] The respondent filed a motion for leave to appeal to the Federal Court on 13.12.2016 but on 13.2.2018 the Federal Court dismissed the motion for leave and ordered the matter to be remitted back for trial. [31] On 31.5.2019 a different High Court Judge heard the witnesses and dismissed the appellants’ claim with costs of RM10,000.00 on the following grounds as summarised by learned counsel for the appellants:

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(1) The Appellants had adequate locus to prosecute and maintain the present action;

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(2) Section 24 of the Limitation Act, 1953 (“s. 24”) is not unconstitutional as at its core, s. 24 does not discriminate against persons of disability, as it in fact provides a facility by which time is extended. As such, it aids persons under disability. The fact that it has been worded in a manner to only assist persons whose disabilities were in existence at the time the cause of action accrued does not, in His Lordship’s view, 13 of 49 mean it is discriminatory in a manner that justifies to be struck down by the Courts;

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(3) The contention that s. 24 affords a shorter period of limitation for a person like in Dato’ Ng’s position was not made out;

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(4) The appellants were appointed pursuant to an order of court granted on 6.12.2013, which gave them approximately two weeks to have filed this action before the onset of limitation. The failure of the appellants to do so meant that the action was time-barred;

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(5) The respondent had failed to discharge the evidential burden of proving that payment were made under the Shares Sales Agreement;

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(6) Had His Lordship not ruled that the appellants were out of time, the learned High Court Judge would have entered judgment against the respondent. [32] Dissatisfied with the decision of the High Court, the appellants had filed an appeal to this Court against that part of the decision of the High Court on limitation having set in. [33] We are of the view that though there was an earlier decision of the previous High Court on the fact that limitation had not set in, that finding was of an interlocutory application in the context of a striking out application where the test is whether the plaintiffs’ claim was “obviously unsustainable” without descending to detailed findings of disputed facts and the ultimate merits of the claim. It is open to the parties to argue the 14 of 49 issue more fully and finally after the trial where the relevant dates would all be before the trial Court on whether or not limitation has set in. [34] The new learned High Court Judge hearing the matter was at liberty to come to his own finding on the issue of limitation based on the clearer dates that had then come to the fore in the evidence of the witnesses before the High Court. The new High Court Judge was not bound by what is a tentative finding on limitation by the previous Judge for the purpose of a Striking Out Application. In any event this Court of Appeal is certainly competent to deal with the issue of limitation on appeal by the appellants as the appeal was validly brought. [35] This is even more so when there is no Notice of Appeal filed by the respondent with respect to the issue of liability if not for limitation having set in. The result is that if this Court of Appeal had agreed with the appellants on “limitation” then judgment would invariably be entered against the respondent. [36] However if this Court is not with the appellants, then the appeal would stand dismissed and upon leave being granted by the Federal Court, which we now learned has been granted, then the appeal to the Federal Court is confined to the issue of “limitation” and not on the finding of liability of the respondent if not for the claim being statute-barred. Whether the cause of action arose more than six years before the filing of the claim [37] The learned trial Judge identified a few possible dates for the commencement of the cause of action. Why a few dates? That was 15 of 49 because though we know the date of the Shares Sale Agreement for the sale of shares entered into by the late Dato’ Ng to be 16.10.2006, and that by the terms of clause 4.1 of the agreement the completion date was within eleven weeks from the Agreement date, yet there were some extensions of time to pay the balance purchase price given to the purchaser respondent, who was the defendant in the High Court below. [38] Under the Shares Sale Agreement Dato’ Ng together 3 other vendors of the 5,280,002 shares in Pahlawan agreed to sell all their shares to the respondent upon the terms and conditions set out in the Agreement for a purchase consideration of RM12,144,004.60 only. Dato’ Ng’s own portion was 2,310,000 shares in Pahlawan (“the Shares”) which he sold under the Shares Sale Agreement for RM5,313,000.00 only. [39] The Transfer Form for the Shares in Form 32A was dated 15.11.2007 and the same was deposited with the respondent’s servants and agents and the transfer of the Shares was effected in favour of and registered in the respondent’s name via Certificate No.056 on 18.12.2007. [40] The latest date for the accrual of the cause of action would be the date of registration of the shares in the purchaser’s name as under clause 4.3 the balance consideration ought to have been payable upon the registration of the shares in the name of the purchaser; there being no evidence adduced that Dato’ Ng had ever agreed to payment at a date even after the registration of the Shares in the respondent’s name. The last day to file the writ action would be 17.12.2013. [41] The Committee Order was obtained on 6.12.2013 and so was still some 11 days left before limitation sets in. Whatever dates are taken, the 16 of 49 common denominator is that the 6-year limitation period would have been over as the suit was filed in the High Court on 29.4.2015. Whether the limitation period should be suspended because of an intervening disability [42] It is agreed between the parties that when the cause of action arose, no disability has set in yet. The Limitation Act 1953 does not provide for a suspension of the limitation period for a case where the cause of action has arisen before the disability sets in. [43] The Limitation Act 1953 provides for a suspension of the limitation period if the person suing was already under disability when the cause of action arose. It is suspended for the period during which the disability is operating and comes to an end when the disability ceases or when a committee is appointed under the MHA to manage the affairs of the person under disability. [44] Learned counsel for the appellants said that there is something wrong here. He submitted that the law should not discriminate between a person who suffers disability when his cause of action arises and one in which the cause of action arises before disability sets in. Whilst accepting the fact that s. 24 of the Limitation Act 1953 is silent on its application to a case of subsequent disability, learned counsel for the appellants nevertheless urged upon this Court that s. 24 is unconstitutional as it does not accord the same rights to a person who suffers a condition of subsequent disability compared to those who had suffered from the disability before or at the date the cause of action arose. 17 of 49 [45] Learned counsel for the appellants further observed that there is also no express prohibition in the Limitation Act either and so there is a lacuna in respect of the legal position of subsequent disability under the Limitation Act. Learned counsel further submitted that in the interest of justice this Court should interpret s. 24 purposively and extend it to cases of a subsequent disability so as not to offend the equality before the law provision enshrined in Article 8 of the Federal Constitution. [46] The simple but persuasive argument is that the law should treat both persons the same way in granting him a suspension of limitation period for the time when he is under disability. It is pivoted as a breach of the Federal Constitution for the Legislature to have discriminated against persons who suffer disability after his cause of action has arisen without giving him the same benefit of a suspension of limitation period like those under a disability when his cause of action arose. [47] Section 24(1) of the Limitation Act 1953 is set out below for all to appreciate its full import and implications: “If on the date when any right of action accrued for which a period of limitation is prescribed by this Act, the person to whom it accrued was under a disability, the action may be brought at any time before the expiration of six years, or in the case of actions to which section 6(4) or section 8 of this Act applies, one year from the date when such person ceased to be under a disability or died, whichever event first occurred notwithstanding that the period of limitation had expired: Provided that in any case to which the provisions of section 29 of this Act apply, this subsection shall apply as if the date from which the 18 of 49 period of limitation begins to run were substituted for the date when the right of action accrued. (emphasis added) [48] However the punch in Article 8’s prohibition against unequal treatment of the law is that like must be treated alike and not that not-alike should be treated alike. Thus, all those who are already under disability when their cause of action arose would have the same benefit of suspension of limitation until the disability ceases. [49] Likewise those whose cause of action has arisen only after the disability sets in would not have the benefit of suspension of limitation during the period of limitation. [50] Learned counsel for the appellants drew the Court’s attention to s. 17A of the Interpretation Act, 1948 and 1967 which enjoins a purposive approach in statutory interpretation: “17A Regard to be had to the purpose of the Act In the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act (whether that purpose or object is expressly stated in the Act or not) shall be preferred to a construction that would not promote that purpose or object.” (emphasis added) [51] It is not a question of discriminating against the latter but a case where Parliament, in all its wisdom, has not legislated for a suspension of limitation period. 19 of 49 [52] Perhaps some reasons may be proffered why there is a difference in treatment between the two categories of persons referred to above. [53] In the case of the person who is already under disability when his cause of action arises, it would be causing him undue hardship if limitation begins to run immediately. Take for example an action in tort where he is being run down by a vehicle while waiting to cross a road and he suffers a severe head injury and is in a coma. [54] His cause of action arose when he was knocked down by the vehicle for supposedly under the tort of negligence. He may take a while before he recovers and comes out of his coma. In the event that he does not then a committee would have to be appointed to manage his affairs and again that may take some time. [55] Whatever it is we know how to objectively pinpoint the time when limitation would ordinarily begin to run in that it was at the time of the accident and hence when it is suspended until the disability ceases or a committee is appointed. In a case where the disability sets in after the cause of action has arisen, it is difficult if not impossible to identify at what point in time limitation should be suspended. There is also the prejudice caused to the defendant if the plaintiff’s family members were to apply for a committee order many years after the limitation period is over for not only would memory fade and vital documents may no longer be retrievable but that the sword of Damocles would be hanging over the heads of such a defendant for a long time until the family members should decide to apply to Court for a committee order. 20 of 49 [56] Learned counsel for the appellants, with much energy and industry, had explored the changes in the law in the United Kingdom, Canada, Western Australia and New Zealand arising out of what is a general dissatisfaction with the old position of the law that provides for suspension of the limitation period in a case where mental disability had set in when the cause of action arose and when the disability sets in after the cause of action has arisen. [57] Thus in the Limitation Act 2005 of Western Australia (“the WA Act”), s. 25 of the WA Act provides, inter alia: “35. Suspension of time while person with mental disability is without guardian

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(1) If –

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(1) it discriminates between the person C and the rest of the persons who have six (6) years to bring an action;

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(2) it also discriminates between person C and any other disabled persons whose cause of action accrued on or after (not before) the date they were under a disability. The latter has a period of full six (6) years from the date when he ceases to be under a disability but person C does not have. [80] Whilst the illustrations of the three situations are helpful to drive home the message that there may be situations where unfairness may seem to work, yet we must appreciate the stark differences in a case of person B compared with person C. In person B’s case, he is already under disability when the cause of action arises and so there is immediately known an objective time frame within which he must bring his action. The one who is to be sued would know that person B is under a disability. 28 of 49 [81] In the case of person C it is different because the person that C wants to sue would not ordinarily know that C has subsequently suffered a disability. If documents are needed to defend a claim against him by C, he would probably think that since 6 years have passed and no suits have been brought, he would probably discard those documents. He cannot be waiting indefinitely for C to sue for in the first place he might not even know of C’s intervening disability and it does not matter if the disability is a day after the cause of action has arisen or a month or a year or even some years later. [82] The thing is this: whoever is taking care of C would roughly know at what point in time C seems not to be able to manage his own life as in a loss of memory or dementia. Generally, if C wants to sue he would not generally wait until the 11th hour to sue only to find himself not being able to manage his own affairs. Whoever C is interacting with and assuming it is his family members, they would be able to see signs of disability coming to the fore and would have some time to apply to Court for a committee order under the MHA. [83] Whilst extreme examples may happen, they are extremely rare as for example C who was in the pink of health and waited until the last week of limitation setting in to begin to see his lawyer to sue and before his statement of claim could be finalised and approved, a car knocked into him and he became unconscious and had to be in a life-support system thereafter! [84] Parliament would of course have to balance on the one hand the interest of people like C and on the other hand the interest of people that 29 of 49 C has a cause of action against and see if it would be fair to wait indefinitely for C to sue. [85] In the case of B one may argue that one has to take B as one finds him, a person who is already under disability. It is not in B’s favour too if there is too long a lapse of time before the litigation representative or committee appointed under the MHA decides to sue on his behalf. [86] Article 8(1) of the Federal Constitution (“Article 8”) guarantees equality for all persons before the law and it declares as follows: “All persons are equal before the law and entitled to the equal protection of the law.” [87] Learned counsel for the appellants said that s.24 of the Limitation Act does not treat all persons with a valid cause of action alike. It is therefore discriminatory, period. To say that is to miss the obvious. Section 24 of the Limitation Act 1953 treats all cases alike where the disability has set in before a cause of action has arisen. As for cases where there is an intervening disability after the cause of action has arisen, s. 24 of the Limitation Act is not applicable. [88] Section 24 therefore treats like cases alike and unlike cases differently. For that matter one may look at the provision of s.3 of the Limitation Act 1953 it provides as follows: “3. This Act shall not apply to any action or arbitration for which a period of limitation is prescribed by any other written law or to any action or arbitration to which the Government or the Government of any State is a party and for 30 of 49 which if it were between subjects a period of limitation would have been prescribed by any other written law.” [89] Thus the Limitation Act 1953 does not apply if an action is governed by another statute that provides for a different period of limitation. An example familiar to all is that of suits brought against a public authority which is governed by s. 2 of the Public Authorities Protection Act 1948 (“PAPA”) where an action in negligence for instance, must be brought within 36 months next after the act, neglect or default complained of. [90] We may say that it is discriminatory because the same act, neglect and default in the case of an individual or corporation would be 6 years next after the act, neglect or default complained of but where it is against a public authority it is 3 years. It is not discriminatory and indeed no Court has held it to be discriminatory because Parliament is at liberty to prescribe a different limitation period for different causes of action as well as against a different entity like a public authority for instance. [91] Equality before the law is a dynamic concept. It is not to treat everyone equally because all of us are unequal to begin with and equal treatment can only perpetuate our current inequality. It is a concept that the law would treat like cases alike and unlike cases differently. To use legal language, there must be ‘reasonable’ or ‘permissible’ classification founded on ‘intelligible differentia’. [92] In Datuk Haji Harun bin Haji Idris v Public Prosecutor [1977] 2 MLJ 155, at p.166 Suffian LP laid down the following principles in 31 of 49 determining if a discriminating law is a good law under Article 8. His Lordship held as follows: “In India discriminatory law is good law if it is based on ‘reasonable’ or ‘permissible’ classification, using the words used in the passage reproduced above from the judgment in Shri Ram Krishna Dalmia, provided that:

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(ii) the differentia has a rational relation to the object sought to be achieved by the law in question. The classification may be founded on different bases such as geographical, or according to objects or occupations and the like. What is necessary is that there must be a nexus between the basis of classification and the object of the law in question.” (emphasis added) [93] Article 8 of the Federal Constitution is not intended to make unequals equal. As was pointed out by the learned author Srimurugan Alagan in Federal Constitution - A Commentary, 2019, Sweet & Maxwell at p 123: “8-4 ….Article 8(1) simply means that there must be a subjection of equal laws, applied alike, to all persons in the same circumstances. The validity of a law relating to equals can only be tested properly if it applies alike to the same class of persons, which can be ascertained by the application of the doctrine of reasonable classification. The corollary is that the doctrine of reasonable classification is the only method determining whether a law applies alike to all persons similarly circumstanced, and is, therefore, an integral part of Article 8(1). If a law deals equally with all the persons of a 32 of 49 well-defined class, it is not obnoxious and cannot be said to be denial of the right of equal protection by the law on the ground that it has no application to persons not within that class. Therefore, there is no discrimination among equals. [Danaharta Urus Sdn Bhd v Kekatong Sdn Bhd (Peguam Negara Malaysia - Intervener) [2004] 2 AMR 317; [2004] 1 CLJ 701, FC].” (emphasis added) [94] None of us would quibble over legislation that appears to have a certain bias towards the poor and weak in society who has little or no power to organise themselves to become something to be reckon with and who are often at the mercy of big corporations and the systems. We speak of some of these legislation as social legislation designed to even out the inherent prejudice often caused to the poor and powerless. [95] As Suffian LP explained in Datuk Haji Harun bin Haji Idris (supra) at p.165: “While idealists and democrats agree that there should not be one law for the rich and another for the poor nor one for the powerful and another for the weak and that on the contrary the law should be the same for everybody, in practice that is only a theory, for in all real life it is generally accepted that the law should protect the poor against the rich and the weak against the strong. Thus few quarrel with the law prescribing different criteria of criminal and civil liability for infants as compared to adults, or with the law for the protection of women and children against men, for the protection of tenants against landlords and of borrowers against moneylenders, for the imposition of higher rates of quit rent on rubber estates compared to rice fields and on higher rates of income tax on millionaires compared to clerks.” (our emphasis) [96] In essence learned counsel for the appellants is in effect saying that there is a breach of Article 8 as where there is an extension of time 33 of 49 for limitation in the sense of suspending limitation in a case where disability had set in before a cause of action arose, but there is no similar extension of time with respect to limitation where the disability set in after a cause of action had arisen. [97] Learned counsel for the appellants submitted that there is no reasonable nexus between the classification and the object of the Limitation Act. Learned counsel for the appellants concluded that s. 24 of the Limitation Act 1953 is discriminatory. He ventured to say that s. cannot be interpreted literally against person C. [98] Learned counsel then impressed upon this Court that where there is a lacuna in the law then under Article 162(6) of the Federal Constitution, this Court may apply s. 24 with necessary modification to bring it into accord with Article 8. Article 162(6) provides: “Any court or tribunal applying the provision of any existing law has not been modified on or after Merdeka Day under this Article or otherwise may apply it with necessary modification as may be necessary to bring it into accord with the provisions of this Constitution.” (emphasis added) [99] We accept the fact that in cases where it can be shown that a pre-merdeka law is in conflict with the Federal Constitution the Court is constitutionally bound to interpret the offending provision to be in tandem with and consistent with the Federal Constitution. [100] Thus the Federal Court in Assa Singh v Menteri Besar, Johore [1969] 2 MLJ 30 applied Article 162(6) to read the provisions of Article 5 of the Federal Constitution vis-à-vis personal liberty into the provisions of 34 of 49 the Restricted Residence Enactment (Cap. 39 of the Law of the Federated Malay States) [see pp.33 (Azmi LP), 40 (Suffian FJ), 44-45 (Gill FJ) and 46 (Raja Azlan Shah J)]. [101] Likewise in Kerajaan Negeri Selangor & Ors v Sagong bin Tasi & Ors [2005] 6 MLJ 289 at p 309, the Court of Appeal applied Article 162(6) in a dispute involving the compulsory acquisition of the native lands. The Court of Appeal interpreted s.12 of the Aborigines Peoples Act 1954 in a manner that the express provision which conferred discretion to the State Authority to grant compensation was taken out from the said section: “38. This is exactly what art 162(6) of the Constitution says. That article reads: Any court or tribunal applying the provision of any existing law has not been modified on or after Merdeka Day under this article or otherwise may apply it with such modifications as may be necessary to bring it into accord with the provisions of this Constitution.

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(ii) Pang Yeow Chow (practising at Messrs YC Pang, Chong & Gordon) v Advance Specialist Treatment Engineering Sdn Bhd [2015] 1 MLJ 490 (Court of Appeal) ─ Claim for negligence against a solicitor; and

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(iii) Sharikat Ying Mui Sdn Bhd v Hoh Kiang Po [2015] MLJU 621 (High Court) ─ Claim for breach of company director’s fiduciary duty. 40 of 49 [118] Some Courts in trying to buffer the harshness of the strict interpretation of s.6 of the Limitation Act 1953 had interpreted the cause of action as having accrued or arisen from the time the injury, defect or damage was discovered or could have been reasonably discovered. The cases are as follows:

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(ii) Peninsular Concord Sdn Bhd v Syarikat Bekalan Air Selangor [2015] 3 CLJ 682 (High Court) ─Claim for illegal consumption of water; and

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(iii) CIMB Bank Bhd v Lee Kim Kee & Ors and another appeal [2018] 3 MLJ 72 (Court of Appeal) ─ Claim for negligence against a financial institution and its officer. [119] The amendment introduced involves inter alia a new s. 6A to address this issue as follows: “6A. Limitation of actions to claim damages for negligence not involving personal injuries

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(1) Notwithstanding subsection 6(1), this section shall apply to any action for damages for negligence not involving personal injuries, where the starting date for calculating the period of limitation under subsection (2) falls after the date on which the cause of action accrued. 41 of 49

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(2) An action to which this section applies shall not be brought after the expiration of three years from the starting date if the period of three years expires later than the period of limitation prescribed in subsection 6(1). ILLUSTRATIONS )a( C bought a house from D in 2000. In 2010, C discovered a crack which damaged the walls badly. A building report made by a consultant revealed that the cracks had occurred in 2002, two years after C moved into the house. C has three years from 2010 to file an action in court against .D for damages )b( C bought a house from D in 2000. In 2006, C discovered a crack which damaged the walls badly. A building report made by a consultant revealed that the cracks had occurred in 2002, two years after C moved into the house. C has three years from 2006 to file an action in court against .D for damages )c( C bought a house from D in 2000. In 2005, C discovered a crack which damaged the walls badly. A building report made by a consultant revealed that the cracks had occurred in 2002, two years after C moved into the house. C has three years from 2005 to file an action in court against .D for damages

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(3) Notwithstanding subsection (2), no action shall be brought after the expiration of fifteen years from the date on which the cause of action accrued. ILLUSTRATION C bought a house from D in 2000. In 2017, C discovered a crack which damaged the walls badly. A building report made by a consultant revealed that the cracks had occurred in 2001, one year after C moved into the house. C cannot commence an action because he has already exceeded the fifteen-year limitation period.

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(4) For the purposes of this section—

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(ii) other facts relevant to the current action:

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(iii) includes the knowledge which the plaintiff or any person in whom the cause of action was vested before him might reasonably have been expected to acquire—

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(5) Knowledge that any act or omission did or did not, as a matter of law, involve negligence is irrelevant for the purposes of subsection (4).” 43 of 49 [120] A corresponding amendment had then to be made in a case of a s. 24 situation where a disability arises before the discovery of the latent defect or injury and this Parliament did by introducing a s. 24A as follows: “24A. Extension of limitation period under section 6A in case of disability

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(1) If on the date when any right of action accrued for which a period of limitation is prescribed under section 6A, the person to whom it accrued was under a disability, the action may be brought at any time before the expiration of three years from the date when such person ceased to be under a disability or died, whichever event first occurred, notwithstanding that the period of limitation had expired.

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(2) An action may not be brought by virtue of subsection (1) after the end of limitation period prescribed under subsection 6A(3). ILLUSTRATIONS

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(3) Where any such person as is referred to in subsection (1) was on such date under two disabilities or where before the disability which he was under on such date had ceased he was affected by another disability he shall be deemed for the purposes of this section to have continued under a disability until both such disabilities have ceased.

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(4) Nothing in subsections (1) and (3) shall affect any case where the right of action first accrued to some person not under a disability through whom the person under a disability claims.

Subsection

(5) When a right of action which has accrued to a person under a disability accrues, on the death of that person while still under a disability, to another person under a disability, no further extension of time shall be allowed by reason of the disability of the second person.” [121] Parliament could have provided for another situation where the disability arises after the discovery of the latent defect or injury other than personal injury but it did not see it fit to do so. It would have been a golden opportunity not to be missed for there had been no prior amendment to the Limitation Act 1953 before. In its wisdom it has decided not to do so. [122] The Courts would have to read words into s.24 of the Limitation Act 1953 which words are not there to make s. 24 applicable to cases where the disability occurs subsequent to the date the cause of action has arisen. 45 of 49 That liberty rarely presents itself and it is only available where the context clearly justifies it. [123] In the recent Federal Court case of AJS v JMH and another appeal [2022] 1 MLJ 778 at p 800 (Federal Court), Tengku Maimun CJ reiterated as follows: “[44] In this context and reverting to statutory interpretation, authorities are replete on the principles or rules of statutory interpretation. Suffice it that I refer to the judgment of this court in Tebin bin Mostapa (as administrator of the estate of Hj Mostapa bin Asan, deceased) v Hulba-Danyal bin Balia & Anor (as joint administrators of the estate of Balia bin Munir, deceased) [2020] 4 MLJ 721; [2020] 7 CLJ 561 where the rules of statutory interpretation is stated thus: [30] In our opinion, the rules governing statutory interpretation may be summarised as follows. First, in construing a statute effect must be given to the object and intent of the Legislature in enacting the statute. Accordingly, the duty of the court is limited to interpreting the words used by the legislature and to give effect to the words used by it. The court will not read words into a statute unless clear reason for it is to be found in the statute itself. Therefore, in construing any statute, the court will look at the words in the statute and apply the plain and ordinary meaning of the words in the statute. Second, if, however the words employed are not clear, then the court may adopt the purposive approach in construing the meaning of the words used. Section 17A of the Interpretation Acts 1948 and 1967 provides for a purposive approach in the interpretation of statutes. Therefore, where the words of a statute are unambiguous, plain and clear, they must be given their natural ordinary meaning. It is not the province of the court to add or subtract any word; the duty of the court is limited to interpreting the words used by the legislature and it has no power to fill in the gaps disclosed. Even if 46 of 49 the words in a statute may be ambiguous, the power and duty of the court ‘to travel outside them on a voyage of discovery are strictly limited’. Third, the relevant provisions of an enactment must be read in accordance with the legislative purpose and applies especially where the literal meaning is clear and reflects the purposes of the enactment. This is done by reference to the words used in the provision; where it becomes necessary to consider every word in each section and give its widest significance. An interpretation which would advance the object and purpose of the enactment must be the prime consideration of the court, so as to give full meaning and effect of it in the achievement to the declared objective. As such, in taking a purposive approach, the court is prepared to look at much extraneous materials that bears on the background against which the legislation was enacted. It follows that a statute has to be read in the correct context and that as such, the court is permitted to read additional words into a statutory provision where clear reason for doing so are to be found in the statute itself.” (emphasis added). [124] In Metramac Corp Sdn Bhd v Fawziah Holdings Sdn Bhd [2006] 4 MLJ 113 Augustine Paul FCJ said at p 129: “Thus, when the language used in a statute is clear effect must be given to it. As Higgins J said in Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129 at pp 161–162: The fundamental rule of interpretation, to which all others are subordinate, is that a statute is to be expounded according to the intent of the Parliament that made it, and that intention has to be found by an examination of the language used in the statute as a whole. The question is, what does the language mean; and when we find what the language means in its ordinary and natural sense it is our duty to obey that meaning even if we think the result to be inconvenient, impolite or improbable. 47 of 49 The primary duty of the court is to give effect to the intention of the Legislature as expressed in the words used by it and no outside consideration can be called in aid to find another intention (see Nathu Prasad v Singhai Kepurchand 1976 Jab LJ 340). Thus the duty of the court, and its only duty, is to expound the language of a statute in accordance with the settled rules of construction and has nothing to do with the policy of any statute which it may be called upon to interpret (see Vacher & Sons Ltd v London Society of Compositors [1913] AC 117; NKM Holdings Sdn Bhd v Pan Malaysia Wood Bhd [1987] 1 MLJ 39).” (emphasis added) [125] In Vengadasalam v Khor Soon Weng & Ors [1985] 2 MLJ 449 at p 450 Abdoolcader SCJ adopted the more strident language of staying clear of passing judgment on statutes: “We would in this regard also advert to the decision of the House of Lords in Thompson v Goold & Co where Lord Mersey said in his speech (at p 420): 'It is a strong thing to read into an Act of Parliament words which are not there, and in the absence of clear necessity it is a wrong thing to do.' Even more pertinent perhaps would be the speech of Lord Loreburn, LC in Vickers, Sons and Maxim, Limited v Evans: My Lords, this appeal may serve to remind us of a truth sometimes forgotten, that this House sitting judicially does not sit for the purpose of hearing appeals against Acts of Parliament, or of providing by judicial construction what ought to be in an Act, but simply of construing what the Act says. We are considering here not what the Act ought to have said, but what it does say; ……. The appellant's contention involves reading words into this clause. The clause does not contain them; and we are not entitled to read words into an Act of Parliament unless clear reason for it is to be found within the four corners of the Act itself.” (emphasis added) 48 of 49 [126] The Judges after all are not the people’s elected representatives though we have no less legitimacy because of our entrenched role in the Constitution to interpret the laws and to apply them to the facts as held and to ensure a just, fair, equitable and reasonable outcome in accordance with the law. We may at times lament on the inadequacy of some legislation so that others in a civil society and lawyers in particular may lobby their elected Members of Parliament on a particular course of conduct. [127] Our powers to do justice in the cases before us is in accordance with the law, whether statute or case law or a combination of both and not according to our own dictates of what the law should be. Thus, in Affin Credit (Malaysia) Sdn Bhd v Yap Yuen Fui [1984] 1 MLJ 169 at p 171 the Federal Court observed as follows: “… the Courts have no power to legislate where there there is a gap in the provisions of a statute and for this legal proposition counsel relies on the case of Magor and St Mellons Rural District Council v Newport Corporation [1952] AC 189 191 where the House of Lords in upholding the majority decision of the Court of Appeal, made scathing criticisms of Lord Denning's dissenting opinion. There it was held that in the construction of a statute, the duty of the court is limited to interpreting the words used by the legislature and it has no power to fill in the gaps disclosed. To do so would be to usurp the function of the legislature.” (emphasis added) Decision [128] For the reasons given above, we were constrained to dismiss the appeal of the appellants. The learned Judge had not erred in his interpretation of s. 24 of the Limitation Act 1953. Sadly, and most 49 of 49 solemnly, limitation with all its stark reality had set in by the time the suit was filed in the High Court below. [129] The appeal was thus without merits and we dismissed it with costs of RM10,000.00 to the respondent subject to allocator. Dated: 9 March 2022. Sgd. LEE SWEE SENG Judge Court of Appeal Malaysia For the Appellants: Ling Hua Keong Audrey Chong Pei Ying Messrs Ling & Mok (Kuala Lumpur) For the Respondent: Jayabalan A/L Raman Kutty Fadhil Ihsan bin Mohamad Hassan Messrs Azwad Ihsan & Co (Johor Bahru) Date of Decision: 13 April 2021.