Judicial Misquotation of Pan Malaysia Equities Sdn Bhd v Angeline Tan Eei We [2010] MLJU 1528

In Lesley Chan Siew Yoke v RHB Bank Berhad [2020] MLJU 242 (“Lesley Chan”), the learned High Court judge (“LHCJ”) therein referred inter alia to an earlier decision of Pan Malaysia Equities Sdn Bhd v Angeline Tan Eei We [2010] MLJU 1528 (“Pan Malaysia”):

“The Court of Appeal in Pan Malaysia Equities Sdn Bhd v Angeline Tan Eei We [2010] MLJU 1528 held that Section 16 of the Act is in pari materia with the corresponding provision under the Indian Contract Act. Hamid Sultan JCA went on to analyse the application of the doctrine in the context of the Contracts Act 1950.”^[1] (Bold and underline mine)

The LHCJ in Lesley Chan appeared to be of the impression that Pan Malaysia was:

(a) A decision of the Court of Appeal; and

(b) A decision by Hamid Sultan JCA.

[collectively referred to as the “Impugned Impressions 1”]

In Loh Mun Wah v Loh Yoon Sang & Ors [2023] MLJU 3435 (“Loh Mun Wah”), the LHCJ therein also misquoted Pan Malaysia as being a decision of the Court of Appeal:

“… The Court of Appeal in Pan Malaysia Equities Sdn Bhd v. Angeline Tan Eei We [2011] 1 CLJ 923; ; [2010] MLJU 1528 held that there was a need to place caveats on applying English cases.”^[2] (Bold and underline mine)

The LHCJ in Loh Mun Wah, similar to the LHCJ in Lesley Chan, appeared to be of the impression that Pan Malaysia was a decision of the Court of Appeal (“Impugned Impression 2”).

Regrettably, the Impugned Impressions 1 and Impugned Impression 2 are factually incorrect.

Pan Malaysia was a decision of the High Court by Justice Hamid Sultan Abu Backer when His Lordship was a High Court judge (and not when His Lordship was a Court of Appeal judge):

The Impugned Impressions led the LHCJ in Lesley Chan to be of the view that he was bound by Pan Malaysia:

“This Court is bound by the position taken in Pan Malaysia Equities and agrees with Singlefine.”^[3] (Bold and underline mine)

It is unclear whether the LHCJ in Lesley Chan would have agreed with (and adopted) the position taken in Pan Malaysia if he was aware that Pan Malaysia was a decision of the High Court.

After all, Pan Malaysia “being a decision of a court of coordinate jurisdiction … whilst deserving the respect and deference that is due to it … is not binding on”^[4] the High Court in Lesley Chan.

As for Loh Mun Wah, the misquotation of Pan Malaysia likely would not have had a material impact on the outcome of the matter as the LHCJ therein also relied on the Court of Appeal’s decision in Tengku Abdullah Ibni Sultan Abu Bakar & Ors V. Mohd Latiff Shah Mohd & Ors & Other Appeals [1997] 2 CLJ 607^[5] to establish a similar proposition.

^[1] Lesley Chan Siew Yoke v RHB Bank Berhad [2020] MLJU 242 (HC), at para 24

^[2] Loh Mun Wah v Loh Yoon Sang & Ors [2023] MLJU 3435 (HC), at para 109

^[3] Lesley Chan Siew Yoke v RHB Bank Berhad [2020] MLJU 242 (HC), at para 27

^[4] See Theow Say Kow @ Teoh Kiang Seng, Henry & Anor v Teoh Kiang Hong & Ors and another suit [2014] 9 MLJ 32 (HC), at paras 74 to 78; see also Kejuruteraan Bintai Kindenko Sdn Bhd v Fong Soon Leong [2021] 2 MLJ 234 (CA): “[66] … This is unlike the situation in respect of decisions of the High Court where the general rule is that a judge at first instance will abide by the decision of another of the High Court at first instance as a matter of judicial comity unless he is convinced that the prior decision was wrong (see for example Huddersfield Police Authority v Watson [1947] KB 842 at p 848).” [Bold and underline mine]; Clear Water Sanctuary Golf Management Bhd vKetua Pengarah Perhubungan Perusahaan & Anor [2007] 6 MLJ 446 (HC), at p. 467: “The case Kaneka Paste Polymers Sdn Bhd v Director General of Industrial Relations & Ors [2005] 7 MLJ 132 relied upon by learned SFC can first, be distinguished and secondly, it is not binding upon this court which of co-ordinate jurisdiction, although judicial courtesy naturally requires that they do not lightly dissent from their considered opinions of their brethren (see Sundralingam v Ramanathan Chettiar [1967] 2 MLJ 211 at p 213).” [Bold and underline mine]

^[5] Loh Mun Wah v Loh Yoon Sang & Ors [2023] MLJU 3435 (HC), at para 110