EMPLOYERS, EMPLOYEES & WAGES DURING MOVEMENT CONTROL ORDER (MCO)

1.-Payment of employee’s wages are governed by the Employment Act 1955 or employment contract which comes under purview of Ministry of Human Resources.

2.-Section 2(1) of the Employment Act 1955 define wages as “basic wages and all other payments in cash payable to an employee for work done”.

3.-In a contract, one consideration (work done) is exchanged for another consideration (wages) based on employment contract.

4.-The question is whether the employees are entitled for the wages for unattended work due to the MCO?

5.-The MCO was issued pursuant to the Prevention and Control of Infectious Diseases Act 1988 and the Police Act 1967.

6.-The Prevention and Control of Infectious Diseases Act 1988 comes under purview of Ministry of Health.

7.-The Police Act 1967 comes under purview of Ministry of Home Affairs.

8.-The Employment Act 1955, Prevention and Control of Infectious Diseases Act 1988, Police Act 1967 and MCO is silent on the employee’s wages in the event of business shut down due to the MCO.

9.-Whether it is lawful for employers to exercise deduction of wages or non-payment of wages of the employees in the event of business shut down due to the MCO?

10.-The High Court case of Viking Askim Sdn Bhd v National Union of Employees in Companies Manufacturing Rubber Products (1991) 3 CLJ (Rep) 195 held as follows:

“…[6] if an employee is ready to perform his services during the period covered by his contract of employment, which provides for payment of wages at certain times, he is entitled to the wages, although the employer has no work for him…”

11.-In applying the above case into the current situation where businesses are shut down due to the MCO, none of the employees are considered to be ready to perform their duty and services.

12.-So, it is plain and obvious that the employees are not entitled to wages for unattended work due to the MCO.

13.-The announcement of MCO is a situation that is beyond the control (force majeure) of both the employers and employees which could cause the suspension of employment contractual obligations.

14.-The doctrine of frustration is applies where the performance of the employment contract becomes impossible by both employers and employees.

15.-It is therefore, any guides issued by the Ministry of Human Resources that related to employment and wages during MCO must not misconceived in law and fact. It is trite law that one cannot widen or narrow the scope of legislation through the issuance of guidelines.

INCREASED PENALTIES FOR SMUGGLING OFFENCES UNDER CUSTOMS ACT 1967

Overview:
The recent amended to the Customs Act 1967 which was gazetted on 28th December 2018 and effective on 2nd January 2019 brought changes to the penalties related to smuggling offences under the Customs Act 1967.

Content:
The amendment had introduced heavier penalties for smuggling offences relating to cigarettes containing tobacco and intoxicating liquor besides increased the penalties for prevailing smuggling offences under Section 135 of the Customs Act 1967. The comparison of penalties before and after amendment are as summarized in the schedule below:-

Maximum penalty before amendment	Maximum penalty after amendment
penalty relating to smuggling offences, evasion of duty, fraud, etc
cases involving dutiable goods including cigarettes containing tobacco and intoxicating liquor	cases involving dutiable goods other than cigarettes containing tobacco and intoxicating liquor
1st offence Fine not more than 20 times of the customs duty or imprisonment up to 3 years or to both 2nd & subsequent offence Fine not more than 40 times of the customs duty or imprisonment up to 5 years or to both	1st offence Fine not more than 20 times of the customs duty or RM 500,000 (whichever greater) or imprisonment up to 5 years or to both 2nd & subsequent offence Fine not more than 40 times of the customs duty or RM 1,000,000 (whichever greater) or imprisonment up to 7 years or to both
cases involving prohibited goods including cigarettes containing tobacco and intoxicating liquor	cases involving prohibited goods other than cigarettes containing tobacco and intoxicating liquor
1st offence Fine not more than 20 times the value of the goods or imprisonment up to 3 years or to both 2nd & subsequent offence Fine not more than 40 times the value of the goods or imprisonment up to 5 years or to both	1st offence Fine not more than 20 times the value of the goods or RM 500,000 (whichever greater) or imprisonment up to 5 years or to both 2nd & subsequent offence Fine not more than 40 times the value of the goods or RM 1,000,000 (whichever greater) or imprisonment up to 7 years or to both
-Nil-	cases involving dutiable cigarettes containing tobacco or intoxicating liquor
-	1st offence Fine not more than 20 times of the customs duty or RM 500,000 (whichever greater) or imprisonment up to 5 years or to both 2nd & subsequent offence Fine not more than 40 times of the customs duty or RM 1,000,000 (whichever greater) or imprisonment up to 5 years or to both
-Nil-	cases involving cigarettes containing tobacco or intoxicating liquor which are prohibited goods
-	1st offence Fine not more than 20 times the value of the goods or RM 500,000 (whichever greater) or imprisonment up to 5 years or to both 2nd & subsequent offence Fine not more than 40 times the value of the goods or RM 1,000,000 (whichever greater) or imprisonment up to 5 years or to both

Conclusion:

The significant increase in the quantum of penalties for economical offenders in the recent amendments to the Customs Act 1967 is to ensure strict enforcement by Customs authority in curbing smuggling offences irrespective of quantity and value. Thus, in simplicity the amendment disclose the ultimate intention of Legislature to enable the Customs authority to arrest anyone in the streets found carrying or in possession of any class of dutiable/uncustomed/prohibited goods on import or export and demand for the production of proof on the payment of duties; failing which to charge the person arrested in the court of law.

SMUGGLING OFFENCES UNDER SECTION 135(1)(e) OF CUSTOMS ACT 1967 (ACT 235)

Section 135(1)(e) of Customs Act 1967:-

Section 135. (1) Whoever-

(e) is in any way knowingly concerned in conveying, removing, depositing or dealing with any dutiable, uncustomed or prohibited goods with intent to defraud the Government of any duties thereon, or to evade any of the provision of this Act or to evade any prohibition applicable to such goods; 

…shall be guilty of an offence… 

Section 135(1)(e) of Customs Act 1967 to be read in pieces as follows:-

-knowingly concerned

-in conveying, removing, depositing or dealing

-with any dutiable, uncustomed or prohibited goods

-with intent to defraud the Government of any duties thereon, or to evade any of the provision of this Act or to evade any prohibition applicable to such goods

The description of the offence under Section 135(1)(e) of Customs Act 1967:-

No.	Description	Definition
1.	knowingly concerned	-consciousness & presence of mind to involved  (mens rea & actus rea)
2.	conveying	-direct evidence of the act of doing so  (actus rea)
	removing
	depositing
	dealing
3.	dutiable goods	-goods subject to the payment of customs duty and on which such duty has not yet been paid
4.	uncustomed goods	-goods in respect of which a breach of this Act or of any subsidiary legislation made thereunder has been committed
5.	prohibited goods	-goods the import or export of which is prohibited either absolutely or conditionally by an order under Section 31 or by any other law
6.	intent to defraud	-the accused intention is to defraud the government of any duties or to evade any provision of the  Act or prohibition related to that goods

The burden of proof:-

1.-These are the ingredients necessary to establish a prima facie case for charge under Section 135(1)(e) of the Customs Act 1967, namely:-

(a)-that there was a conveyance of the goods by the accused;

(b)-that at the time of such conveyance the goods were dutiable, uncustomed or prohibited;

(c)-that the accused knew that the goods conveyed were dutiable, uncustomed and prohibited.

2.-In order to establish that the goods were dutiable, uncustomed or prohibited at the time of conveying the prosecution is entitled to invoke presumption of law under Section 135(2) of Customs Act 1967 to shift the burden of proof on the accused if there was dispute as to whether duties had been paid in respect of the goods.

FORFEITURE OF SEIZED GOODS UNDER SECTION 128(4) OF CUSTOMS ACT 1967 (ACT 235)

How forfeiture of goods seized does take place under Customs Act 1967?

1.-where no claim is made by the owner within time and there is no prosecution in respect of the goods seized. This is by operation of law under Section 128(1) of Customs Act 1967.

2.-where a claim of ownership is made in respect of the goods seized and the court ordered for forfeiture of the goods seized upon examination (enquiry). This is by virtue of Section 128(4) of Customs Act 1967.

3.-where the court ordered for forfeiture of the goods seized at the end of trial. This is by virtue of Section 127 of Customs Act 1967.  

Forfeiture upon examination under Section 128(4) of Customs Act 1967:  

1.-The Onus of Proof by Customs Prosecutor in obtaining the forfeiture order under Section 128(4) of Customs Act 1967 is as follows:-

1.1-an offence against the Act had been committed; and

1.2.-the seized goods were the subject matter of the offence; or

1.3.-where the claim related to the conveyance, such conveyance was used in the commission of the offence.

2.-Once the elements of offence as stated above have been proved, the presumption of law under Section 119 of Customs Act 1967 (Section 128(5) of Customs Act 1967) will be invoked where the onus of proof shall shifts on the claimant to show that:-

2.1.-customs duties have been paid in respect of seized goods; or

2.2.-the seized goods have been lawfully imported or exported; or

2.3.-the seized goods are exempt from duty under Section 14 of Customs Act 1967.

SMUGGLING OFFENCES UNDER SECTION 135(1)(d) OF CUSTOMS ACT 1967 (ACT 235)

Section 135(1)(d) of Customs Act 1967:-

Section 135. (1) Whoever-

(d) knowingly harbours, keeps, conceals, or is in possession of, or permits, suffers, causes or procures to be harboured, kept or concealed, any uncustomed or prohibited goods; 

…shall be guilty of an offence… 

Section 135(1)(d) of Customs Act 1967 to be read in pieces as follows:-

-knowingly

-harbours, keeps, conceals, or

-is in possession of, or

-permits, suffers, causes or

-procures to be harboured, kept or

-concealed

-any uncustomed or

-prohibited goods

The description of the offence under Section 135(1)(d) of Customs Act 1967:-

No.	Description	Definition
1.	knowingly	-consciousness & presence of mind (mens rea)
2.	harbours (harbouring)	-to store or keep or protect
	keeps (keeping)	-to retain
	conceal (concealment)	-to keep secret or hide
3.	is in possession of	-within the knowledge and control (mental and physical elements)
4.	permits	-authorize
	suffers	-allow
	causes	-give rise to
5.	procures to be　harboured	-obtained as to protect
	kept	-retained
6.	concealed	-hidden
7.	uncustomed goods	-goods in respect of which a breach of this Act or of any subsidiary legislation made thereunder has been committed
8.	prohibited goods	-goods the import or export of which is prohibited either absolutely or conditionally by an order under Section 31 or by any other law

The burden of proof:-

1.-These are the ingredients necessary to establish a prima facie case for charge under Section 135(1)(d) of the Customs Act 1967, namely:

(a)-that there was a possession of the goods by the accused;

(b)-that at the time of such possession the goods were uncustomed or prohibited;

(c)-that the accused knew that the goods possessed were uncustomed or prohibited.

2.-In order to establish that the goods were uncustomed or prohibited at the time of possesion the prosecution is entitled to invoke presumption of law under Section 135(2) of Customs Act 1967 to shift the burden of proof on the accused if there was dispute as to whether duties had been paid in respect of the goods.

CARTA ALIRAN:PENGUATKUASAAN PENGHAKIMAN DAN PERINTAH MELALUI WRIT PENYITAAN DAN PENJUALAN

Failkan Praecipe untuk Writ Penyitaan dan Penjualan - Borang 89 (a).
↓
Pengeluaran Writ Penyitaan dan Penjualan - Borang 84/84A/85 yang dimetarai oleh pegawai di Pejabat Pendaftaran.
↓
Writ Penyitaan dan Penjualan – Borang 84/84A/85 adalah sah untuk 12 bulan bermula dari tarikh keluaran. Writ boleh dilanjutkan untuk 12 bulan lagi sekiranya tidak dilaksanakan sepenuhnya dan permohonan mesti dibuat sebelum writ itu tamat.
↓
Writ Penyitaan dan Penjualan diserahkan kepada Syerif atau Bailif dan Bailif akan mengendorskan pada writ hari, jam dan minit penyerahan writ tersebut.
↓
Tarikh dan masa pelaksanaan ditetapkan. Mesti dilaksanakan Antara jam 9:00 pagi dan 4:00 petang, melainkan jika Syerif atau Bailif memerintahkan selainnya.
↓
Tarikh pelaksanaan. Deposit kos pelaksanaan perlu dibayar di Pejabat Pendaftaran sekiranya diminta oleh Syerif atau Bailif.
↓
Harta alih disita oleh Syerif atau Bailif.
↓
Bailif akan memberikan penghutang pelaksanaan suatu notis penyitaan dan inventori – Borang 91 dan 1 salinan notis mesti difailkan. Jika Syerif atau Bailif mengalihkan harta alih yang disita, suatu inventori tentang harta yang dialihkan mesti diberi pada masa harta itu dialihkan atau sebaik sahaja selepas itu kepada penghutang pelaksanaan samada
↓
Penghutang Pelaksanaan diberi 7 hari untuk menyelesaikan tunggakan hutang penghakiman.
↓	↓
Penghutang Pelaksanaan setuju membayar	Penghutang Pelaksanaan enggan membayar
↓	↓
Mohon suatu perintah penggantungan pelaksanaan - Borang 93	Notis Jualan melalui lelong awam – Borang 92 dikeluarkan untuk menjual harta alih yang disita.
↓	↓
Penghutang Pelaksanaan menjelaskan hutang penghakiman.	Jika nilai harta yang disita melebihi RM10,000.00, jualan hendaklah dijalankan oleh pelelong berlesen sekiranya diperintah oleh Syerif atau Bailif dan jualan diiklankan secara umum. Dalamm apa-apa hal yang lain jualan boleh dijalankan oleh Syerif atau Bailif.
↓	↓
Persetujuan Pemiutang Pelaksanaan difailkan – Borang 90	Hasil penjualan akan dibahagikan mengikut pernyataan akaun.

SUMBER: KAEDAH-KAEDAH MAHKAMAH 2012

WRITTEN LAW

Introduction:

There are 2 sources of law in Malaysia which can be classified into written law and unwritten law. The written law includes Federal Constitution, State Constitutions, Legislation and Subsidiary Legislation.

1.Federal Constitution:

The Federal Constitution is the supreme law of Federation (Malaysia).

By virtue of Article 4(1) of the Federal Constitutions the Constitution is the supreme law of the Federation and any law passed post Merdeka Day that is inconsistent with this Constitution shall be void.

In short, Federal Constitution is regarded as the main source of written law, which should be referred in understanding the Malaysia Legal System.

2.State Constitution:

Every State in Malaysia has its own Constitution, which provide the regulation of the State Government.

3.Legislation: 

The Parliament and State Legislative Assembly is responsible to enact law respectively at the federal level and state level. The law enacted on pre-Merdeka day and post-Merdeka day is respectively known as Ordinances and Acts. Whereas, law enacted by the State Legislative Assemblies is called Enactments. However, Sarawak is an exceptional state where the laws are called Ordinances. The sources of legislation in the states may differ from one to another.

Legislation is used as a means of repealing, amending, enacting or codifying the law. But however, Federal Constitution states if there is any law that is inconsistent with a Federal law the Federal law should prevail.  

4.Subsidiary Legislation:

Subsidiary legislation is also known as subordinate legislation or delegated legislation.

Subsidiary legislations are any proclamation, rule, regulation, order, notification, by law or other instrument made by an authority under powers conferred on it by a statute/act.

What is the needs for delegated legislation?

-due to insufficient law provided by parliament and state legislatures;

-subsidiary becomes very important to deal with everyday matters;

(Example: parking by-laws which is enacted by the local councils under the authority of the State Local Government Enactments)

-to economize the legislative (law-making) time of legislature;

-lacks of expertise in technical areas and therefore the states needs a prompt and swift solution during an emergency;

-delegated legislation is flexible and variable compared to the ordinary legislation.

Generally, any subsidiary legislation is void if it is enacted in contrary to the parent Act or the Federal constitution. Hence, the court is empowered to declare any delegated legislation to be invalid if is contrary to the constitution. Furthermore, if there is a no mechanism or control, the power may be misused and affect the legislature. The Legislature is empowered to supervise the delegated legislation in order to avoid misuse of the delegated Legislation.

Differences between Federal Constitution and State Constitutions:

The Federal Constitution distinguish the legislature powers between Federal Government (Parliament) and the States (State Legislative Assembly) that divided into Federal, State and Concurrent List.

Parliament can enact laws on matter listed in Federal List. The State can enact laws on matter listed in State List.  Whereas both Federal Government and States Government can enact laws on matter listed in the Concurrent List. If the matters are not in any lists, the matters are within the State Power.

If any law passes by the State Government is inconsistent with the Federal law the Federal law should prevail and any laws which contravene to the Federal Constitution may be declared as null and void by the Courts.

Conclusion:

The written laws in Malaysia are considered as the most important reference in understanding the Malaysia legal system. It is essential that one should understand the legal history of each law concerned before reading and explore it.