Defamation Law

One of the risk that bloggers facing is
the defamation law. There is one example where
the famous Malaysia blogger Jeff Ooi is sued by
NST during July 2007. Defamation to be exact
means the way of expressing your words which
may insult the other party in the public.Other than
that Mca Public Service and Complaints Department
head Datuk Michael Chong also filed a defamation
suit againts t Guang Ming Daily for publishing a report which allegedly referred him as"Ah Long King". The report also carried a meaning that he could not be trusted, a criminal, a liar and a dishonest person and not fit to head the MCA Public Service and Complaints Department, he said.
This happened during September 2007.

There are two types of defamation in Malaysia: libel and slander.

Libel is when such words are expressed in a permanent form which is usually visible to the eye, like in a book, e-mail or picture.
Slander is when such words are expressed in a temporary form, usually when spoken or made by body movements.

In civil cases of defamation, when a private person sues another private person for defamation, the Defamation Act 1957 is applicable.
In criminal cases of defamation, when the state prosecutes a private person for defamation, Section 499 to Section 502 of the Penal Code is applicable.

McDonald vs McCurry back in 2006

In 2006, McDonald's won a five year legal battle in Malaysia against a small restaurant named "McCurry". The defendant claimed that McCurry stood for Malaysian Chicken Curry, but a High Court judge ruled that the prefix Mc and the use of colors distinctive of the McDonald's brand could confuse and deceive customers
In April 2009 however, McCurry won the case again after a retrial. Again in September 2009, McDonald’s lost an eight-year trademark battle in a precedent-setting judgment by Malaysia’s highest court. The Federal Court ruled that McDonald’s cannot appeal against another court’s verdict that had allowed McCurry to use ‘Mc’ in its name. The ruling by a three-member panel of the Federal Court ends all legal avenues for McDonald’s to protect its name from what it said was a trademark infringement. “On the basis of unanimous decision, our view is that McDonald’s plea to carry the case forward has no merit," said chief judge Arifin Zakaria. “It is unfortunate that we have to dismiss the application with costs,” he said. McDonald’s will have to pay RM10,000 to McCurry, a popular eatery in Jalan Ipoh on the edge of Kuala Lumpur’s downtown.
McDonald’s lawyers refused to comment, except to say the company will abide by the judgment. A three-member Appeal Court panel had ruled in favour of McCurry Restaurant in April, 2009 when it overturned a 2006 High Court ruling that had upheld McDonald’s contention. Arifin said McDonald’s lawyers were unable to point out faults in the Appeal Court judgment, which had said there was no evidence to show that McCurry was passing off McDonald’s business as its own. The Appeals Court also said McDonald’s cannot claim an exclusive right to the ‘Mc’ prefix in the country.

An article from India

The government of India had asked the accountants,
cost accountants and company secretaries to directly
report to the home ministry cases of suspicious fund
movements in an out of companies, as it looks to crack
down on money laundering and terror funding
“If any suspicious fund movements come to the notice of
the professionals, details of it along with full particulars
of its clients should be reported within 24 hours,” said
a senior government official.

The move is aimed at sensitising professionals of
their responsibilities under Section 51A of the
Unlawful Activities (Prevention) Act, which aims at preventing
routing of terror funds through domestic firms.

The move assumes significance at a time when India Inc
passes through the annual audit season, which
involves professionals such as CAs and company
secretaries to audit the financials of companies
and vet their management affairs. The government
wants that the professionals act in a more responsible
manner to report cases of corporate malafides as soon
as they come to their notice, the official said.

India is preparing to join FATF, an inter-government body founded by the G-7 countries in 1989 for developing and promoting national and international policies to combat money laundering and terrorist financing. FATF is currently evaluating India’s preparedness for its membership, which will allow the country to gain access to real-time exchange of information on money laundering and terror financing.

According to an article, there is one family which has
a father, mother and a son. However, unfortunately the husband
passed away during an accident. The husband and wife
had a joint account amount to RM50,000 in a local bank.
The wife thought that she will get the money automatically
when the husband passed away.However, to her astonishment,
she could not even withdraw a single cent from the account.

For your information, a joint account holder will be able
to get the money automatically when that bank practise
"Joint Tenancy". This term tell us that when one party die,
the other party will get the money automatically.
Sad to say that, not all banks adopt this practice.

There is one lawyer that argues that there is this term
which is joint tenancy versus tenancy in common. This term
appears in the English and Common Civil Law. He argued that
even Malaysia's bank or lawyers are not able to tell you what
exactly is Joint Tenancy and Tenancy in common.

Business Law Case Study Question

There is a case law which found on the web regarding on the
law of binding contract.
It was on 9 February 2010, James received a written offer
from Bond for the purchase of James's antique car for the
sum of RM55,000. The letter stated that if Bond did not give
a reply within this two weeks James will made an assumption that
Bond had accepted that offer. However, Bond did no reply on this.
Therefore, James claim that there is a binding contract between
him and Bond.

However, i personally think that there is no binding contract in
this issue. Silence never represent acceptance. Other than that
to make a binding contract to be lawful, there are six elements to
be considered. The elements are :
1) Offer
2) Acceptance
3) Mutual Agreement
4) Capacity
5) Consideration
6) Legality

Therefore , i think there is no binding contract developed
between them in this issue.

Question of the day


I found a question on the internet which voice out the cases like this:

If a subsidiary company increase its authorized and paid up share capital
without knowledge of holding company just to dilute the
shareholding percentage. Kindly inform what are the precautions
in legal terms to be taken by a Holding Company to Control
the increase or decrease the Paid up as well as Authorized Share
Capital in its Subsidiary Companies.

According to the law of company, the authorised capital of the
company can be increased at the EGM of the shareholders by
passing a ordinary as well as special resolution. At this kind of
situation, the authorised capital can not be increased by t
he subsidiary company on its own or without the consent of
the holding company. On the other hand, in the case of
increase of paid up capital by the subisidiary company
within the limit of authorised capital, precaution such
as by having control over the composition of board of
directors of the subsidiary company can be taken by
the holding company.

Revenue/ Income tax law

Sources of income which is subject to income tax are as follow:

• Gains and profits from trade, profession and business
• Salaries, remunerations, gains and profits from an employment
• Dividends, interests or discounts
• Rents, royalties or premiums
• Pensions, annuities or other periodic payments/li>
• Other gains or profits of an income nature not mentioned above.

in an example:
Harlina operates a petrol station in Greenlane, Penang,
under the dealership operated by Petronas. under
the dealership agreement with Petronas, the principal
agreed to reimburse Harlina in respect of sums expended
by heron sales promotion, advertising, etc, in return for Harlina
agreeing to buy for resale only the company's brand
of petrol. During the year 2007, a reimbursement
of RM50,000 was receivable from Petronas in respect
to a lucky draw organizedby the petrol station.

Issue: Advise Harlina on whether the reimbursement of RM50,000 payable
by Petronas is taxable.

Discussion : It is taxable. Such a receipt is in essence a recovery of advertising and
promotion expenses which are deductible business expenses.