|
|
|
|
CORPORATE AND COMMERCIAL LAW
New Regulatory Framework for Mobile App-Based Ride-Hailing (“E-Hailing”) Services in Peninsular Malaysia
IN THIS ARTICLE, FATIMAH ZAHIRAH LOOKS AT THE NEW REGULATORY FRAMEWORK FOR E-HAILING SERVICES.
Introduction
The legality of e-hailing services like Uber and GrabCar has been the subject of debate including whether or not the operations fall within the existing regulatory framework governing land public transport.
The relevant statute regulating land public transport in Peninsular Malaysia is the Land Public Transport Act 2010 (“LPTA 2010”), which is enforced by the Land Public Transport Commission (“SPAD”).
SPAD had in its various anti-illegal taxi operations seized private vehicles used to carry passengers under e-hailing platforms for operating without a Public Service Vehicle Licence under the LPTA 2011[1]. However, it appears that the use of the mobile platform services provided by the e-hailing companies like Uber and GrabCar have not been declared illegal and no action has been taken directly against the e-hailing companies for arguably “abetting” such “illegal taxi operations”.
The legal vacuum within which the e-hailing companies currently operate will be filled, and the debate on the legality and the need to regulate operators of e-hailing platforms will be put to rest, once the proposed amendments to the LPTA 2010 come into effect.
New regulatory framework
The Land Public Transport (Amendment) Bill 2017 (“Bill”) has been passed by both Houses of Parliament respectively in July and August 2017[2] and is currently awaiting royal assent. It is expected to come into force in October 2017[3].
It is also noteworthy that, ahead of the proposed amendments to the LPTA 2010, the Self-Employment Social Security Act 2017 (“SESSA 2017”) has come into force on 13 June 2017 to regulate social security contribution by a self-employed person, which includes an e-hailing driver[4].
This article highlights the key changes and expected measures in regulating the e-hailing services in Peninsular Malaysia under the new regulatory framework.
Licensing of intermediation business
The operators of e-hailing platforms will be required to obtain an Intermediation Business Licence to operate an intermediation business[5].
An “intermediation business” refers to the business of facilitating arrangement, bookings or transactions for the provision of public service vehicle service for hire or reward or for any other valuable consideration or money’s worth or otherwise[6].
Public service vehicle includes an “e-hailing vehicle”, which is a motor vehicle having a seating capacity of four persons and not more than 11 persons (including the driver) used for the carriage of persons on any journey in which the arrangement, booking or transaction, and the fare for such journey are facilitated through an electronic mobile application provided by an intermediation business[7].
Specific standards and measures
The Intermediation Business Licence may include, among others, the following conditions[8]:
- the type and extent of intermediation business to be operated or provided by the licensee;
- the general level of service to be provided to persons using services provided by the intermediation business;
- the measures to safeguard the safety and security of persons using services provided by the intermediation business; and
- the standards of performance to be complied with by the licensee in the operation of the intermediation business.
No draft subsidiary legislation or guidelines have yet been published by SPAD to provide for specific standards and measures to regulate e-hailing services. However, various media releases and news reports have hinted that the specific standards and measures may include[9]:
- periodic vehicle inspection for e-hailing vehicles;
- insurance coverage for passengers and third parties in the case of accident;
- registration of e-hailing drivers with SPAD;
- submission by e-hailing operators of records and data relating to e-hailing drivers (including records of traffic and other offences) to SPAD;
- implementation of a “panic button” on e-hailing apps to provide passengers with a feature to notify the police in case of an emergency;
- e-hailing vehicles to be not more than five years old;
- health screening for e-hailing drivers; and
- e-hailing drivers to obtain digital Driver’s Card, own a driver’s licence, attend customer service oriented training and have no criminal record, summons or compounds.
It was also indicated from news reports that e-hailing fares will not be regulated but will remain market-driven[10].
Penalty
A person carrying out an intermediation business without an Intermediation Business Licence will be liable to a fine not exceeding RM500,000 or to imprisonment for a term not exceeding three years or both[11].
An intermediation business licensee who fails to comply with any of the conditions attached to the Intermediation Business Licence will be liable to a fine of not less than RM1,000 but not more than RM200,000 or to imprisonment for a term not exceeding two years or both[12].
One-year grace period for existing intermediation business operators
An intermediation business operator who has been operating before the date of coming into operation of the Bill has a one-year grace period from such date, within which it will have to make an application to obtain an Intermediation Business Licence[13].
SESSA 2017
Under the SESSA 2017, an e-hailing driver would need to register with and pay a prescribed contribution to Pertubuhan Keselamatan Sosial (“PERKESO”) or Social Security Organisation (“SOCSO”), the failure of which is an offence and will attract a fine not exceeding RM10,000 or imprisonment for a term not exceeding two years or both[14].
Conclusion
The proposed amendments to the LPTA 2010 to subject e-hailing services to operate within a regulatory framework is timely to ensure that the highest safety standards are practised by e-hailing operators and drivers in the interest of the public. This is especially so in view of recent news reports alluding to criminal offences committed by some e-hailing drivers against passengers[15].
FATIMAH ZAHIRAH
CORPORATE AND COMMERCIAL LAW PRACTICE GROUP
|
|
|
For further information regarding corporate and commercial law matters, please contact
|
|
Semenyih Jaya Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat
IN THIS ARTICLE, SIEW HUEI IRA ANALYSES WHETHER IT IS CONSTITUTIONAL TO EMPOWER THE ASSESSORS TO DECIDE ON THE AMOUNT OF COMPENSATION FOR COMPULSORY LAND ACQUISITION CASES IN THE CASE OF SEMENYIH JAYA SDN BHD V PENTADBIR TANAH DAERAH HULU LANGAT.
Introduction
On 20 April 2017, the Federal Court in the case of Semenyih Jaya Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat[1] made a landmark ruling on the nature and extent of the assessors’ role in deciding on the amount of compensation for compulsory land acquisition cases.
Background facts
In this case, Semenyih Jaya Sdn Bhd (“the Developer”), who was the registered proprietor of a piece of land located in the District of Ulu Langat (“the land”), was notified of the intended compulsory acquisition of the land under the Land Acquisition Act 1960 (“the LAA”). The Land Administrator then conducted an enquiry to determine the amount of compensation payable to the Developer arising from the compulsory acquisition of the land and awarded compensation amounting to RM20,862,281.75 to the Developer. Dissatisfied with the award made by the Land Administrator, the Developer objected to the adequacy of the award. The objection was referred to the High Court for determination.
The objection was heard and determined by the High Court Judge who sat with two assessors. The High Court affirmed that part of the Land Administrator’s award relating to the valuation of the land, allowed the Developer’s claim for severance and injurious affection but dismissed the other claims of compensation sought by the Developer.
On appeal, the Court of Appeal dismissed the Developer’s appeal against the decision of the High Court.
Issues before the Federal Court
Dissatisfied with the Court of Appeal’s decision, the Developer applied for and obtained leave to appeal to the Federal Court. One of the issues for consideration by the Federal Court was whether section 40D of the LAA, which empowers the assessors to decide on the amount of compensation in compulsory acquisition cases, was constitutional.
The position prior to amendment in 1984
Before 1984, section 42 of the LAA contained a provision for assessors to aid the judge on the issue of compensation. Whilst the assessors played a vital role in advising the judge, it was the judge who was empowered to decide on the issues arising out of land reference proceedings as well as the amount of compensation to be paid in respect of the land acquired.
The 1984 amendment
Between 1984 and 1998, the role of the assessors was completely removed and a Judge sat alone to hear the appeal on compensation in the land reference court.
The 1997 amendment (present position)
The role of assessors was restored by the introduction of section 40D of the LAA. Section 40D of the LAA provides as follows:
“(1) Except as provided in this section the Court shall consist of a Judge sitting alone.
(2) Where the objection before the Court is in regard to the amount of compensation, the Court shall appoint two assessors (one of whom shall be a valuation officer employed by the Government) for the purpose of aiding the Judge in determining the objection and in arriving at a fair and reasonable amount of compensation.
(3) ….”
The decision of the Federal Court
The Federal Court observed that on the face of it, section 40A of the LAA appeared to be in order. However, upon closer scrutiny, the Federal Court observed that there was a difference between the existing section 40D of the LAA and the position prior to 1984.
Prior to 1984, the role of assessors was limited to assisting the judge on technical issues. This was consistent with the common law practice of appointing persons with special skills, knowledge or experience to assist judges during judicial proceedings to answer questions which may require such expertise.
The existing section 40D of the LAA however empowers the assessors to decide on the amount of compensation to be awarded arising out of the acquisition and such decision is final and non-appealable. The Federal Court held that this provision effectively usurps the power of the court in allowing persons other than the judge to decide on land reference proceedings. The Federal Court concluded that this provision therefore has the effect of undermining the judicial power of the judiciary and is unconstitutional. The Federal Court stressed that the power to award compensation in land reference proceedings is a judicial power that should rightly be exercised by a judge and no other.
By striking out the provision of section 40D of the LAA as being unconstitutional, the Federal Court has redefined the role of assessors in land reference proceedings. The Federal Court explained that the assessors are required to listen to the proceedings and evaluate the evidence. They may also be required to answer questions within their competence. At the end of the proceedings, the assessors are required to give their opinion as to the appropriate amount of compensation to be awarded in a particular land reference proceeding. The Federal Court stressed that it is then for the judge and the judge alone to deliberate and decide on the amount of compensation.
The Federal Court made it clear that the declaration that section 40D of the LAA is unconstitutional shall have prospective effect and hence, will only affect pending cases at first instance or at the appellate stage.
Conclusion
Following the decision in Semenyih Jaya Sdn Bhd, the new Chief Judge of Malaya, Tan Sri Ahmad Maarop, issued a new practice direction (Arahan Amalan Hakim Besar Malaya Bil 1 Tahun 2017) on 6 June 2017 expressly stating that the decision in Semenyih Jaya Sdn Bhd applies to all cases still pending and not finally disposed of.
The decision in Semenyih Jaya Sdn Bhd has finally provided clarity on the role of assessors in land reference proceedings.
Siew Huei Ira
DISPUTE RESOLUTION PRACTICE GROUP
|
|
|
For further information regarding dispute resolution matters, please contact
|
|
TAX AND REVENUE LAW
The Impact of the Finance Act 2017 on Withholding Tax in Malaysia
IN THIS ARTICLE, AMANDA HOI CONSIDERS THE IMPACT OF THE FINANCE ACT 2017 ON WITHHOLDING TAX IN MALAYSIA.
Overview of the law relating to withholding tax
To cover situations where income is derived from Malaysia by non-residents who are outside the reach of the Malaysian Inland Revenue Board (“IRB”) as they have no presence in Malaysia, withholding tax is charged on such income under the Income Tax Act 1967 (“ITA”), whereby liability is imposed on the entity in Malaysia which is responsible for making payments of the income to the non-residents.
A prime example is section 4A of the ITA, which charges tax on certain special classes of income derived by a non-resident from Malaysia whilst section 109B of the ITA enforces the charge by requiring the payer in Malaysia to withhold the tax on the income of the non-resident. What amounts to “derived from Malaysia” is set out in section 15A of the ITA.
The payer is responsible to withhold the tax and remit the tax to the IRB within one month of paying or crediting the payment to the non-resident. Although withholding tax is charged on the income of the non-resident, non-compliance with the relevant legal provisions would result in penalties and adverse tax implications for the payer.
A shift in the law in Malaysia
Early this year, the Finance Act 2017 (“FA”) was gazetted. It introduced several amendments to the ITA, including a shift in the law governing withholding tax (with effect from 17 January 2017).
Prior to the amendments, section 15A of the ITA stated that income derived by a non-resident under certain circumstances shall be deemed to be derived in Malaysia, provided that the services were performed in Malaysia (“the Proviso”).
However, section 15A of the ITA has been amended by removing the Proviso, which leads to the imposition of withholding tax on payments to non-residents regardless of whether the services were performed in or outside Malaysia.
Consequently and, unsurprisingly, much confusion and uncertainty arose. Questions revolved around the impact of the amendment on:
- transitional issues; and
- its application vis-à-vis existing Double Taxation Avoidance Agreements (“DTAs”) that state otherwise.
In response to these pressing issues, the IRB published guidance in the form of Practice Notes 1/2017 and 2/2017 on 23 June 2017, which are explored below.
Transitional Issues
As is the case when any amendment is introduced, transitional issues come into play. For example, what if the parties had already signed a contract prior to the amendment? Is the amendment still applicable if services had already been performed? Does it make a difference when payment is made?
Practice Note 1/2017 clarifies the position in four possible scenarios:
Scenario 1:
Scenario 2:
Scenario 3:
Scenario 4:
It appears that the common thread between the scenarios above is that withholding tax will always apply if services are performed outside Malaysia after 17 January 2017 — unless both the contract was signed and payment was made before 17 January 2017.
What about DTAs that state otherwise?
Malaysia has entered into effective DTAs with 74 countries as at 30 May 2017[1]. Double taxation refers to “the imposition of comparable taxes in two (or more) States on the same taxpayer in respect of the same subject matter and for identical periods”[2]. Hence, DTAs are contracts signed between countries to avoid double taxation.
Certain DTAs may provide that withholding tax is only applicable to payments for services when services are performed in that country. This is contrary to the amended section 15A, which had removed the Proviso. Further, certain DTAs may state that withholding tax is entirely inapplicable to payments for services.
With the amended section 15A of the ITA and the existing section 109B of the ITA, Malaysia has taken the stand that it has the right to impose withholding tax on payments for services performed — be it in or outside Malaysia.
However, the IRB’s Practice Note 2/2017 has clarified that this right is restricted in DTAs with specific countries:
- Payments to Singapore and Spain residents for services performed outside Malaysia are NOT subject to withholding tax; and
- Payments to Australia and Turkmenistan residents for services (performed both in and outside Malaysia) are NOT subject to withholding tax.
In summary, Malaysian businesses and companies that engage the services of non-residents from the aforementioned countries need not remit withholding tax to the IRB if the requirements above are met.
Conclusion
The IRB’s guidance is most welcome as it offers necessary clarification on the impact of the amended section 15A of the ITA on transitional issues and its application concerning DTAs that state otherwise.
Malaysian businesses and companies should review their existing contracts with non-residents to ascertain the impact of the amended section 15A of the ITA on those contracts.
AMANDA HOI
TAX & REVENUE PRACTICE GROUP
|
|
|
For further information regarding tax and revenue law matters, please contact
|
|
INTELLECTUAL PROPERTY
Market Surveys after Liwayway
IN THIS ARTICLE, MICHELLE LOI ANALYSES THE RECENT FEDERAL COURT DECISION ON THE VALUE OF MARKET SURVEYS TO PROVE NON-USE.
The value of a market survey often used by a “person aggrieved”[1] to challenge a registered trade mark on the ground of non-use was assessed by the Federal Court in the recent case of Liwayway Marketing Corporation v Oishi Group Public Co Ltd[2]. The Federal Court held that compliance with the Whitford Guidelines[3] does not automatically translate a person aggrieved case into one where the prima facie burden of proving non-use has been discharged.
It is clear from the Federal Court decision that fulfilment of the Whitford Guidelines was not enough as that only addressed the form of a market survey report (or in other words, what a market survey report ought to contain). The substantive aspect (discussed below) of the market survey report is equally important as well. It is only when both aspects are fulfilled can a person aggrieved be said to have discharged its prima facie burden of proving non-use.
A registered trade mark is presumed to be prima facie valid. Section 36 of the Trade Marks Act 1976 (“the TMA”) provides that in all legal proceedings relating to a registered trade mark, the fact that a person is registered as proprietor of the trade mark shall be prima facie evidence of the validity of the original registration of the trade mark and of all subsequent assignments and transmissions thereof.
Notwithstanding the presumption of validity under section 36 of the TMA, a person aggrieved by the entry of a trade mark in the Register (or a registered trade mark) may, subject to the provisions of the TMA, commence legal action in court for an order to rectify the trade mark entry in the Register. In the case where a trade mark has been entered in the Register but which has not been used by the registered proprietor in respect of its registered goods, the person aggrieved could consider relying on section 46(1)(b) of the TMA[4].
The requisites of section 46(1)(b) of the TMA were summarised in the case of USA Pro IP Limited v Montfort Services Sdn Bhd[5] as including:
- the need for the applicant to show that it is an aggrieved person; and
- that there has been no use by the registered proprietor for a continuous period of no less than three years and one month prior to the filing date of the rectification action[6].
The burden of proving non-use of a registered trade mark on a prima facie basis rests on the person aggrieved, as was previously held in the High Court case of Godrej Sara Lee Ltd v Siah Teong Teck & Anor (No 2)[7], [8].
In the past, a person aggrieved has been known to produce various means of showing non-use, including resorting to private investigations[9], and/or market surveys. However, as evident from those past cases, market surveys had been subject to various challenges. For example, as the issue of non-use pertains to non-use in Malaysia, the market survey must inevitably cover the whole of Malaysia.
Whitford Guidelines
The following stringent requirements which were laid out by Whitford J in the case of Imperial Group Plc v Philips Morris Ltd & Anor[10] (commonly known as the “Whitford Guidelines”) were adopted with approval by the courts in Malaysia.
- The surveyor’s background and brief credentials must be included in the survey report;
- Instructions given to the surveyors must be clear;
- Who these respondents of the surveys were must be disclosed in the survey report;
- The full names of the respondents;
- The locations where the data had been collected; and
- The methodology of approaching these respondents should be disclosed.
Further, questions that are to be posed to the respondents of the survey must not be leading questions. Answers, both in favour and against the party seeking to rely on the market survey, must also be disclosed.
The Whitford Guidelines were also endorsed by both the High Court and the Court of Appeal in Liwayway Marketing Corporation. That endorsement, however, appeared to be on face value, without giving much regard to the substance or content of the survey report itself. Such manner of endorsement had led to the unfortunate rectification of Liwayway’s trade marks. Dissatisfied, Liwayway procured leave to appeal to the Federal Court.
Facts of the case
The appellant (“Liwayway”) was a company incorporated in the Philippines. It was the registered owner of the trade mark “Oishi” in the beverage-related goods (Class 30) and services (Class 43). Oishi Group Public Co Ltd, on the other hand, was a company incorporated in Thailand. It was also in the food and beverage business.
The respondent (“Oishi Group”) applied for the registration of its trade mark in Class 32 but was rejected by the Malaysian Intellectual Property Office by reason of Liwayway’s earlier Class 30 and Class 43 trade marks in the Register.
On 19 February 2013, Oishi Group subsequently brought a rectification action against Liwayway’s Classes 30 and 43 trade marks on the grounds that, amongst others, Liwayway has not been using its trade marks for the requisite continuous period of three years and one month prior to the filing of the rectification action. In other words, Oishi Group alleged that Liwayway has not used its trade marks in respect of its registered goods and/or services between 19 January 2010 and 19 January 2013.
In support of this allegation, Oishi Group relied on the results of a market survey conducted on 260 outlets including hypermarkets, supermarkets, mini-markets, Chinese medicinal halls, convenience stores, wet markets and wholesalers in three major locations in Malaysia between 11 August 2011 and 22 August 2011.
The decision of the High Court and the Court of Appeal
The High Court found that the market survey report tendered fulfilled the Whitford Guidelines and accepted the survey report as conclusive proof of non-use of the subject registered trade marks[11]. The Court of Appeal affirmed this view.
The decision of the Federal Court
The market survey, as was later found by the Federal Court, was wrought with inadequacies which did not meet the substantive requirements of section 46(1)(b) of the TMA.
The issue as regards the substance of the market survey came before the Federal Court. The relevant question of law that was posed before the Federal Court was:
“ … whether the ‘continuous period of not less than three years’ of s. 46(1)(b) [of the TMA] may be truncated and computed segmentally such that non-use of the registered mark is proved by showing non-use for only a part of the duration of the three years up to one month before the filing of the rectification action.”
The question was prompted based on the acceptance by both the High Court and the Court of Appeal of the relevant survey report in question despite only covering a fraction of the requisite period of purported non-use, that is, between 11 August 2011 and 22 August 2011.
The Federal Court agreed with Liwayway and found that the market survey report did not cover the requisite period from 19 January 2010 to 19 January 2013. From the market survey report, it was clear that the survey had only covered a period of 10 days. The instruction was received on 11 August 2011 and concluded on 22 August 2011. On the basis that the survey report did not address the remainder relevant period after the conclusion of the survey on 22 August 2011 but before 19 January 2013, the Federal Court found the survey inconclusive.
Further, contrary to the High Court and Court of Appeal’s findings, the survey report did not meet the threshold requirements under the Whitford Guidelines. Put another way, Oishi Group was found not to have discharged the burden of proving a prima facie case of non-use of Liwayway’s registered trade marks in respect of its registered goods and/or services.
On this same point, the Federal Court further agreed that Liwayway is not required to adduce evidence proving use of its registered trade marks during that period of time. Accordingly, Liwayway’s appeal was allowed with costs.
Conclusion
The Federal Court reaffirms the difficult task and hurdle that a person aggrieved needs to overcome should it wish to rely on a market survey and its report to prove non-use. In many respects, this is seen as striking a balance between the entitlement and rights of a registered proprietor to enjoy, uninterrupted, the fruits of its trade mark registration and the rights of a person who claims to have been aggrieved by the entry of the trade mark in the Register.
The take away point for the latter would be, rather than asking what an ideal market survey ought to encompass, a person aggrieved should consider, on the facts of its own case, all possible means of proving its case for non-use before proceeding to bring the case to court.
MICHELLE C Y LOI
INTELLECTUAL PROPERTY AND TECHNOLOGY PRACTICE GROUP
|
|
|
For further information regarding intellectual property law matters, please contact
|
|
EMPLOYMENT AND ADMINISTRATIVE LAW
Sexual Harassment: A Higher Threshold of Severity and Pervasiveness?
IN THIS ARTICLE, JAMIE GOH MOON HOONG EXAMINES THE COURT OF APPEAL’S INTERPRETATION OF SEXUAL HARASSMENT IN THE CASE OF MD NOR KASSIM V MALAYAN BANKING BERHAD.
Introduction
In the case of Md Nor Kassim v Malayan Banking Berhad[1], the Court of Appeal allowed an appeal by a former bank manager who was sacked for alleged sexual harassment of his subordinate.
Section 2 of the Employment Act 1955 (“EA 1955”) defines “sexual harassment” as:
“…any unwanted conduct of a sexual nature, whether verbal, non-verbal, visual, gestural or physical, directed at a person which is offensive or humiliating or is a threat to his well-being, arising out of and in the course of his employment.”
The Code of Practice on the Prevention and Eradication of Sexual Harassment in the Workplace (“the Code”), on the other hand, defines “sexual harassment” in Article 4 as:
“…any unwanted conduct of a sexual nature having the effect of verbal, non-verbal, visual, psychological or physical harassment:
- that might, on reasonable grounds, be perceived by the recipient as placing a condition of a sexual nature on her/his employment;
- that might, on reasonable grounds, be perceived by the recipient as an offence humiliation [sic], or a threat to her/his well-being, but has no direct link to her/his employment.”
Facts
On 28 January 2010, Malayan Banking Berhad (“MBB”) received a verbal report from its staff, the complainant (“Rohaida binti Kamarudin”), that Md Nor Kassim had sexually harassed her. The alleged acts of sexual harassment were as follows:
- Md Nor Kassim had on several occasions sent text messages containing inappropriate words such as “ILU” which stands for “I love you”; and
- the act of Md Nor Kassim lending a book entitled 100 Rahsia Kehebatan Lelaki (“the Book”) to Rohaida binti Kamarudin.
A domestic inquiry was convened and the panel of domestic inquiry found Md Nor Kassim guilty of grave misconduct and dismissed him from service with effect from 22 August 2010.
Dissatisfied with the dismissal, Md Nor Kassim referred the matter to the Industrial Relations Department which in turn referred the dispute to the Minister who then referred the dispute to the Industrial Court for resolution.
The Industrial Court, after hearing the matter, ruled that Md Nor Kassim was dismissed without just cause or excuse and ordered him to be reinstated to his former position.
MBB subsequently filed an application for judicial review to the High Court seeking an order of certiorari to quash the Industrial Court’s award.
The decision of the High Court
The learned High Court Judge allowed the application for judicial review and issued a writ of certiorari to quash the Industrial Court’s award. The High Court held that Md Nor Kassim himself admitted to certain alleged acts of misconduct in that several comments that he had made to his employees via text messages were inappropriate and of an intimate or personal nature with sexual connotations.
The High Court was of the view that it was gross misconduct and in bad taste for a male superior officer to bring the Book to the office and hand it over to a married female employee under his supervision. The High Court further held that whether or not the Book was read by Rohaida binti Kamarudin or kept by her for one week did not make the offence or misconduct any less grave.
The decision of the Court of Appeal
On appeal, the Court of Appeal set aside the High Court’s order and reinstated the Industrial Court’s award. The Court of Appeal pointed out that it would be difficult to conclude that the act of lending the Book to Rohaida binti Kamarudin would amount to an act of sexual harassment when she did not register any resentment or discomfort upon receiving the Book.
The Court of Appeal also pointed out that Rohaida binti Kamarudin kept the Book for one week and had shared the contents of the Book with a witness, even though she had denied reading the Book. The Court of Appeal agreed with the Industrial Court chairman in concluding that if Rohaida binti Kamarudin had not been interested in the Book she could have easily turned down the offer by Md Nor Kassim.
On the alleged text messages of obscene nature, the Court of Appeal said that the learned Chairman’s finding was that it had occurred between 2008 and 2009 and the text messages which contained the abbreviation “ILU” that stood for “I Love You” was found to be motivational in nature. The learned Chairman found that there was no evidence to suggest that the same text message was not sent to any other subordinates and that Rohaida binti Kamarudin was the only recipient of such a text message.
The Court of Appeal held that the learned chairman’s conclusions were findings of fact and done based on the credibility of the witnesses.
Conclusion
The decision of the Court of Appeal signifies an inclination towards a more restrictive interpretation of the definition of sexual harassment. In affirming the Industrial Court’s decision, the Court of Appeal seems to suggest that Md Nor Kassim’s conduct was justified based on the delay in Rohaida binti Kamarudin’s reaction towards Md Nor Kassim’s actions.
Further, to conclude that the objectionable messages did not constitute sexual harassment simply because there was no evidence of similar text messages being sent by Md Nor Kassim to other subordinates seems to suggest that a sexual harassment complaint cannot be based on Rohaida binti Kamarudin’s perception of the harasser’s conduct towards her alone.
JAMIE GOH MOON HOONG
INDUSTRIAL RELATIONS AND ADMINISTRATION PRACTICE GROUP
|
|
|
For further information regarding industrial and administrative law issues, please contact
|
|
FINANCIAL SERVICES
Going Green
IN THIS ARTICLE, TANG JIA YI DISCUSSES THE ADVENT OF GREEN SUKUK IN MALAYSIA
Increasing concerns on environmental responsibility and sustainability had given rise to a “green” trend — including finance. There is no precise, established definition of green finance. Generally, it refers to the financing of investments that generate environmental benefits as part of the broader strategy to achieve inclusive, resilient and sustainable development[1].
Green finance has emerged as a new area of banking and is gaining worldwide recognition. In 2016, G20 heads of State, acknowledging the need to scale up green financing in order to support environmentally sustainable growth over the globe, had set out a series of steps to make this happen[2].
In Malaysia, Securities Commission Malaysia (“SCM”) had the foresight to establish a Sustainable & Responsible Investment (“SRI”) Sukuk framework in 2014 before green finance became a trend. The SRI Sukuk framework, being a result of a collaboration between Bank Negara Malaysia, SCM and the World Bank, was launched by SCM in 2014 with the aim to facilitate the financing of sustainable and responsible investment initiatives. The requirements for issuance of SRI Sukuk are set out in the revised guidelines on Sukuk.
Under the revised Sukuk guidelines, the proceeds raised from the issuance of SRI Sukuk can be used to preserve the environment and natural resources, conserve the use of energy, promote the use of renewable energy and reduce greenhouse gas emission[3]. The rising concerns over environmental and social impact of businesses and greater demand for stronger governance and ethics from businesses has led to the launching of the SRI Sukuk framework to ensure the capital market in Malaysia is well-positioned to capitalise on these changing trends and facilitate sustainable and responsible investing[4].
Several years after the launch of the SRI Sukuk framework, SCM has announced the issuance of Malaysia’s very first green Sukuk under the SRI Sukuk framework — Green SRI Sukuk Tadau on 27 July 2017[5]. The RM250 million SRI Shariah-compliant bond holds a tenure of two to 16 years and was assigned a rating of AA3/Stable by RAM Rating Services Bhd. The proceeds raised thereunder will be used to finance a 50MWac solar project in Kudat, Sabah, which will supply energy under two 21-year power purchase agreements entered into with Sabah Electricity Sdn Bhd in December 2016[6].
Despite the SRI Sukuk framework having been introduced a few years ago, it has taken some time before the issuance of the first green Sukuk in Malaysia. One of the reasons for the slow progress of green instruments in Malaysia is due to the lack of awareness, particularly among investors and issuers, as to what they could do and what was available[7]. To address this issue, the World Bank has conducted a number of workshops to raise investors’ interest in green Sukuk.
Further, the lack of a proper framework is also one of the challenges faced by green Sukuk. This was partially addressed by the creation of the SRI Sukuk framework. Nonetheless, there is no comprehensive framework or regulation on SRI instruments in Malaysia. The absence of the standard and verification system for performance measurement of green instruments is one of the reasons why investors and issuers are thinking twice before tapping into green Sukuk[8].
Over the past few years, to complement the SRI Sukuk framework and promote greater utilisation of green Sukuk as a fundraising channel, the Government has come up with several incentives to attract green issuers, including tax deduction until year of assessment 2020 on issuance costs of SRI Sukuk approved or authorised by or lodged with SCM[9]. Furthermore, tax incentives are also provided for green technology projects related to renewable energy, energy efficiency, green building, green data centre and waste management as well as the expenditure incurred by companies on the purchase of green technology assets[10]. This is to encourage investment in green technology projects and to motivate companies to acquire green technology assets[11].
In addition, the Government has also introduced a special financing scheme — Green Technology Financing Scheme (“GTFS”), with a total fund allocation of RM5 billion until 2022[12], to support the development of green technology in Malaysia[13]. GTFS has produced local green technology entrepreneurs with a funding of RM2.96 billion for 272 projects[14]. All these efforts were not in vain. The issuance of the Green SRI Sukuk Tadau marks a significant milestone in the history of green Sukuk not only in Malaysia, but also the entire world, which would give Malaysia potential to be the green hub of ASEAN[15]. Although there are still considerable uncertainties in this new area of fund raising, the transformation of the global economic landscape to green and sustainable finance looks unstoppable.
TANG JIA YI
FINANCIAL SERVICES PRACTICE GROUP
|
|
|
For further information regarding financial services matters, please contact
|
|
Advocates & Solicitors Notary Public Registered Patent Agent
Trade Mark Agents
Industrial Design Agents
|
|
Peguambela & Peguamcara
Notari Awam
Ejen Paten Derdaftar
Ejen Cap Dagangan
Ejen Rekabentuk Perindustrian
|
|
This newsletter is produced by the Knowledge Management Department. Please contact the department of the newsletter editorial committee at KM@shearndelamore.com if you need any information about this newsletter.
|
|
Kuala Lumpur Office:
7th Floor
Wisma Hamzah-Kwong Hing
No 1, Lebuh Ampang,
50100, Kuala Lumpur,
Malaysia
T: 603 2027 2727
F: 603 2078 5625
E: info@shearndelamore.com
|
Newsletter Editorial Committee:
Goh Ka Im
Christina S C Kow
K Shanti Mogan
Marhaini Nordin
Zaraihan Shaari
Lai Wai Fong
|
|
Publisher:
Shearn Delamore Corporate Services Sdn Bhd
Suite 10.05, 10th Floor
Wisma Hamzah-Kwong Hing
No 1, Lebuh Ampang
50100, Kuala Lumpur
T: 603 2027 2727
F: 603 2078 5625
|
|
|
|
|
|
|
|
