English law is one of Malaysian sources of

law where :
Art 160 FC defines the word law to
include the common law in so far as it is
in operation in the Federation or any
part thereof.
Sec 3 Civil Law Act 1956 defines English
law as the common law of England and
the rules of equity.
 What is common law?
- A body of rules developed by old
common law courts (Courts of
Exchequer, Courts of Common Pleas
& Courts of Kings Bench).
- It is based on customs common
throughout England.
- It is unwritten law (not enacted by P).
- It is based on decisions of courts.
 What is rules of equity?
- A body of rules developed by Lord
Chancellors* which later, developed
by the old Court of Chancery.
- It cannot exist on its own like common
law but made to supplement the
common law, to correct its defects &
to mitigate its harshness.
* Lord Chancellors were trained as priests & acted as
keepers of Kings conscience. When faced with allegation of
injustice of common law, Lord Chancellors decided
according to Christian percepts of fairness or their own
conscience.
 Equity is discretionary system of justice.
Thus equitable remedy may not be
granted if Plaintiff is regarded morally
undeserving.
Examples of equity : trust concept,
equitable remedies of injunction &
specific performance.
Now, no difference bet common law
& equity where both are mentioned
together to mean English law derived
from judicial decisions.
Meaning of Injunction:
It is court order that requires a party either to do or refrain
from doing specific acts eg Mr X may ask court for order to
stop somebody from repeatedly trespassing his land. Money
damages would be of little benefit to Mr X who wished simply
to prevent someone from repeatedly trespassing on his land.

Meaning of Specific Performance:

It is court order which requires a party to perform a specific
act usually what is stated in a contract. It is ordered in a case
where damages are not an adequate remedy eg most often
used as a remedy in transactions regarding land, such as in
the sale of land where the vendor refuses to convey title. The
reason being that land is unique and that there is not another
legal remedy available to put the non-breaching party in the
same position had the contract been performed. Beswick v
Beswick case. (refer to file)
 Application of English law today is based
on the Civil Law Act 1956 (Act
67)(Revised 1972).
CLA is statutory authority for the
application of English law in Msia.
CLA incorporates 3 earlier statutes which
existed during the formation of Malaysia
ie Civil Law Ordinance 1956 (West M),
Application of Laws Ordinance 1951
(Sabah) and Application of Laws
Ordinance 1949 (Sarawak).
 Q: To what extent English law is
applied in Malaysia under CLA?
A: The extent of application of
English law in Malaysia is stated
under 3 provisions ie sections 3, 5
and 6 of CLA. (discuss all the sections in
detail)
 It provides for the general application
of English law. (refer to CLA file)
It provides that in the absence of
written law :
i) the courts in West Malaysia shall
apply the English common law & rules
of equity existing in England on 7th
April 1956;
ii) the courts in Sabah shall apply the
English common law, rules of equity &
statutes of general application
existing in England on 1st Dec 1951;
and
(iii) the courts in Sarawak shall apply
the English common law, rules of
equity & statutes of general
application existing in England on 12th
Dec 1949;
subject to the local circumstances &
inhabitants.
 ISSUE 1: WHETHER ENGLISH STATUTES OF
GENERAL APPLICATION ARE APPLICABLE TO
WEST M?
2 views on this issue:
1. G.W.Bartholomew: They are applicable
based on 3 reasons:
i) the word common law includes statutes
ii) to apply common law without statutes
means applying half of English law only.
iii) different wording from old provision of
Sec 2(1) of Civil Law Enactment 1937- sec
2(1) had expressly excluded the application
of statutes but Sec 3(1) has not.
2. Joseph Chia: They are not applicable
based on 3 reasons:
i) difference of wording bet para (a) and
para (b) & (c) where the words
together with statutes of general
application are added in para (b) and
(c).
ii) common law is different from statutes.
iii) difference of wording bet Sec 3(1)(a)
and Sec 5(1) where sec 5(1) applies
English statutes by the wordings the law
to be administered in England whereas
no such wordings exist in sec 3(1)(a).
 Cases supporting Chias view:
MOKHTAR v ARUMUGAM : based on
sec 3(1) of CLA, the court could not
award damages as pleaded coz the
damages was a creature of English
statute .
PERMODALAN PLANTATION v
RACHUTA : the legal set-off (cross claim by
defendant against plaintiff which, if successful, would cause
which
reduction of elimination of the plaintiff's claim)
was based on English statute did not
apply in West M.
ONG GUAN HUA v CHONG : the
English Gaming Acts of 1710 & 1835
had no application in West M.

JAYAKUMARI v SURIYA NARAYANAN :

Malaysian court had no jurisdiction to
grant an interim relief (eg injunction
granted as temporary order pending
trial) in domestic violence case which
was based on English statute.
PUSHPAH v MALAYSIAN CO-
OPERATIVE INSURANCE SOCIETY :
sec 3(1)(a) allows in West Malaysia,
the application of common law of
England & rules of equity and not the
additional item statutes of general
application.
 ISSUE 2 : WHETHER ENGLISH LAW
APPLICABLE IN MALAYSIA UNDER SEC 3
IS SUBJECT TO QUALIFICATIONS?

A: Yes..It is subject to 3 qualifications :

i) in the absence of local statutes
ii)cut-off dates
iii)subject to local circumstances
i) In the absence of local statutes;
-This condition is mentioned in the
opening provision of section 3(1) CLA.
-it is statutory recognition of judicial
practice of referring to English law to
fill lacunae/gaps in local law.
-YONG JOO LIN v FUNG POI FONG:
principles of English law have been
accepted in FMS where no other
provision has been made by statute.
-AG v MANJEET SINGH DHILLON : in
the absence of any specific local
legislation concerning contempt of
court, the English common law of
contempt as stated in case of R v
Gray should be applied under section
3 CLA.

-this principle was followed in MURRAY

HIEBERT v CHANDRA SRI RAM.
ii) cut-off dates;
-only English law existing in England on the
dates specified ie 7th April 1956 (West
Malaysia), 1st Dec 1951 (Sabah) and 12th
Dec 1949 (Sarawak) must be applied to fill
lacunae in local law.
LEE KEE CHOONG v 4 NOMBOR EKOR: the
court need not consider / follow
developments in English law after 1956 (for
West Msia) coz under section 3(1) any
subsequent march in English authority (new
English law principles which developed
after 1956) is not embodied.
-LEONG BEE v LING NAM RUBBER
WORKS: English common law
applicable was only the law which
was still enforceable in England on
that specified date (1956). Thus the
presumption principle has no
application in Malaysia coz it was no
longer part of English common law.
- followed by LEMBAGA KEMAJUAN
TANAH PERSEKUTUAN v TENAGA
NASIONAL.
-However in practice, the Malaysian
courts may follow developments in
English law after the specified dates.
-English cases decided after such dates
are not binding on Malaysian courts but
they are persuasive only. Supported by:
JAMIL HARUN v YANG KAMSIAH [1984]:
it is for the courts in Malaysia to decide
whether to follow English cases or not
(in the absence of local statute).
Modern English authorities may be
persuasive but are not binding.
Thus the principle leaves the door open to
the continuing reception of English law in
Malaysia. It all depends on the wisdom of
Malaysian courts.
COMMONWEALTH OF AUSTRALIA v
MIDFORD (M) SDN BHD [1990] :
developments of English common law after
1956 may be applicable in West Malaysia.
In this case, the doctrine of restrictive
sovereign immunity which was developed
in common law after 1956 was applicable
in Malaysia. The specified dates mentioned
under section 3(1) CLA does not mean that
English law applicable in Malaysia must
remain static & not developed.
 IN RE GEOFFREY ROBERTSON [2000] : one must
remember that the principles of English law
after 7th April 1956 for West Malaysia, 1st Dec
1951 for Sabah and 12th Dec 1949 for Sarawak
as enumerated in para (a),(b) and (c) of sec
3(1) CLA, do not bind the courts in Malaysia.
Statement by YAA Tun Dato Seri Mohd Eusoff
Chin in a circular to judges and registrars in
Malaysia: ... Janganlah kita terburu-buru untuk
menerima pakai keputusan-keputusan yang dibuat oleh
mahkamah di England selepas tarikh pakai yang ditetapkan
oleh Seksyen 3 Akta Undang-undang Sivil 1956
(apply them only in appropriate cases coz they are
persuasive only)
iii) Local circumstances;
-English law is applicable only to the
extent permitted by local cstances &
inhabitants, and subject to
qualifications necessitated by local
cstances.
-this condition is mentioned in the
conclusion of sec 3(1) CLA which is
usually known as the local
circumstances proviso.
CHOA CHOON NEOH v
SPOTTISWOODE : English law which
was adapted to the condition and
wants of the inhabitants, is the law of
the land in Straits Settlements. In its
application to the various races of
Straits Settlements, English law was
subject to modifications to prevent
from injustice and oppression.
-SYARIKAT BATU SINAR v UMBC FINANCE :
Registration of claim to ownership by
finance company differs very much
between England and West Malaysia. The
practice in West Malaysia (that all buyers of
second hand vehicles depended on the
absence of any registered endorsement of
claim to ownership in the registration card
as a green light to deal with sellers whose
name are registered as owners) together
with the local statute (Road Traffic Ord
1958) would constitute a distinctive local
cstances of inhabitants of West Malaysia.
Thus principles in English cases should not
be followed.
-YAT BOON TIA v TENG SUN TONG [2000]:
Sec 3 of CLA promulgates that UKs
common law & rules of equity are
applicable in Malaysia but subject to the
sensitivities of the respective areas &
inhabitants.
-IN RE GEOFFREY ROBERTSON [2000] : even if
there are cases from England which ought
to be referred in order to clarify principles of
common law & rules of equity, those English
cases can only be applied in Malaysia in
the absence of any written laws of Malaysia
and that the application is always subject
to the cstances proviso of sec 3 CLA.
As conclusion, principles of English law
are applicable to Malaysia subject to 2
limitations :
i. In the absence of Malaysian statutes
on the particular subject matter/issue.
Local law takes precedence over English
law coz English law is only applied to fill in
lacunae in local law; AND
ii. Not all English law is applicable. Only
English law that is suited to local
cstances of Malaysia will be applied.
* (held in DATIN SITI HAJAR v MURUGASU [1970]
 Specific application of English law ie
application in commercial matters only.
Sec 5 provides that (refer to CLA file)
Compared to sec 3(1) CLA, Sec 5 CLA
applies all types of English law (common
law, rules of equity & statutes) to
commercial cases.
Compare the wordings between sec 5(1)
and sec 5(2) CLA.
Difference of wording between sec 5(1)
and 5(2) means that there is difference
in the extent to which English law is
applicable in commercial matters
between the former Malay States and
Melaka, Penang, Sabah & Sarawak. Sec
5(1) applies in the former Malay States,
English commercial law existing in
England on 7th April 1956, whereas sec
5(2) applies in Melaka, Penang, Sabah &
Sarawak, English commercial law existing
in England on the date the issue/case
has to be decided by courts in Malaysia.
SO WHAT ?
 It means that there is continuing
reception of English commercial law
in Melaka, Penang, Sabah & Sarawak
while in the other states the reception
of English law stops at the specified
date ie 7th April 1956.
Howeve in practice, the difference
does not exist. For example, the courts
granted Mareva injunctions and
issued Anton Piller orders which are
developed in English law after 7th April
1956 throughout Msia.
-Application of English commercial
law is subject to local statutes (ie
applicable in the absence of local
law). Today, there is no total reliance
on English commercial law since Msia
has many local statutes dealing with
commercial matters eg Companies
Act 1956, Partnership Act 1961,
Banking & Financial Institutions Act
1989, Contract Act 1950, Insurance
Act 1963 etc.
-KON THEAN SOONG v TAN ENG
NAM : English law of partnership
was not applicable in Malaysia
since there is local statute
applicable.
-ZAINAL ABIDIN v AHMAD KAMAL
: the Respondent could not apply
English common law in
commercial matters unless there is
lacunae or ambiguities in our law.
 Application of English commercial law
is also subject to local cstances. SHAIK
SAHIED v SOCKALINGAM CHETTIAR :
the English Moneylenders Act was not
applicable coz the statute was meant
to regulate activities of moneylenders
in England & was not of general
application. Thus the statute was
unsuited and could not be applied to
the local scene in Straits Settlements.
LEONG BROTHERS v JERNEH
INSURANCE : under sec 5 CLA, English
Marine Insurance Act 1906 is
applicable. However, application of
English law is subject to acceptance
by local cstances.
 It deals with non-application of English
law in land matters.
Sec 6 states : (refer to CLA file)
Q: Why English law is not applicable?
A: Coz land law in Malaysia is governed
by the Australian Torrens System which is
incorporated under the local statutes.
Torrens System is a system based on
registration of land titles to provide
simplicity & certainty in land dealings.
The system is now incorporated under
the National Land Code (Penang &
Melaka Titles) Act 1963 (for Penang &
Melaka), National Land Code 1965 (for
the rest of states in West M) and Sarawak
Land Code (for Sarawak). Sabah has
different non-Torrens system under Land
Ordinance.
 ISSUE: Whether English equitable
principles are also not
applicable?
A: There are 2 views:
First View : English equitable
principles are not applicable coz
Torrens System contained in the
National Land Code (NLC) is a
comprehensive system of land
law. Support with cases:
UMBC v PEMUNGUT HASIL TANAH
KOTA TINGGI: The National Land
Code is a complete &
comprehensive code of law
governing tenure of land in
Malaysia & matters relating to it.
There is no room for the
importation of any rules of English
law except if the Code itself
allows it.
o HAJI ABDUL RAHMAN v HASSAN: land
administration system of Selangor is a
system of registration of title modeled
on the Australian Torrens System.
Under such system, there is no room
for the application of English equity.
CHIN CHOY v COLLECTOR OF STAMP
DUTIES: the principle that a purchaser
can become equitable owner of the
land does not apply in Malaysia by
virtue of sec 6.
 T DAMODARAM v CHOE KUAN HIN:
Sec 6 excluded the reception of
English common law & rules of equity
as part of the law in Malaysia.
Second View : English equitable
principles are applicable in Malaysia
coz NLC does not cover all relations
between parties to land transactions.
It is not a complete law. It regulates
the
the rights & obligations of the parties only
after registration of title, but not before
registration (if u have paid purchase price
for a land but the land is not yet registered
in your name, what can u do to secure your
right?) . Further more, there are no provision
in the NLC which prohibits the application
of equitable principles. Thus, the
contractual principles governing land
transactions are not governed by the NLC
coz NLC only covers the registration of land
titles. Supported by many cases starting
from the case of
 WILKINS v PANNAMAL : The Torrens
System is a system of conveyancing. It
does not abrogate principles of
equity.

Unsolved problem : the scope of

application of the English equitable
principles to land matters under NLC ?
 Sec 27 of CLA : relating to custody of
infants but subject to local law.
Sec 47(1) of Partnership Act 1961:
relating to partnership but subject to non
contradiction to the provisions of the Act
itself.
Sec 101(2) of Bills of Exchange Act 1949:
relating to bills of exchange, promissory
notes & cheques but subject to local
law.
( refer to pg 138-139 of Wan Arfah)
(Approach by courts to develop Malaysian common
law & how far such approach was followed)
MAJLIS PERBANDARAN AMPANG JAYA v STEVEN PHOA
& 81 OTHERS [2006] : FC laid down the approach to
be taken when a court faces situation whether to
apply English law or not, as follows:
i. Firstly, the court has to determine whether there is
any written law in force in Malaysia. If there is, the
court has to follow it. But if there is none, the court
should determine what is the English common law
existed in England on 7th April 1956 (West M).
 ii. Secondly, the court should consider
whether local cstances / local inhabitants
of Malaysia permits the application of
English law in Malaysia. If it is permissible,
the court shall apply the English law. But if
not, the court may reject English law totally
or adopt any part of it which is suitable.
The court further held that when the court
rejects English law, Malaysian court is free to
formulate its own common law. In doing so,
the court may look at other sources of law
either local or not, including English law
developed after 7th April 1956 & common
law in other countries.
However in practice, lawyers & judges do
not usually follow the above approach
because :
i. it is difficult to determine the common
law administered in England on 7th April
1956 ;
ii. They do not see the rationale of
Malaysian courts applying old common
law.
As a result, recent developments in
English common law are followed
without any reference to Section 3 CLA.
 However, there are judges who are aware
of Section 3 CLA & applied the provision
correctly like in the following cases:

i.CHUNG KIAW BANK v HOTEL RASA SAYANG

[1990] : sec 3 orders the courts to apply
English law only in so far as local cstances
permit & no provision has been made by
local statute. It is up to the Malaysian courts
whether to follow English law after 7th April
1956 but the courts cannot just simply
accept the development of common law
in England.
ii.COMMONWEALTH OF AUSTRALIA v
MIDFORD [1990] : sec 3 CLA only requires
the courts to apply English law as
administered on 7th April 1956 and it does
not mean that the English law applied
must remain static & do not develop.
iii.SYARIKAT BATU SINAR v UMBC FINANCE :
the Malaysian courts have to develop
their own common law just like what
Australia has been doing by taking into
consideration the local cstances.
iv.TG ABDULLAH v MOHD LATIFF [1997] : the
court admitted the role played by the
judicial policy & local cstances in
shaping Malaysian jurisprudence.
v.PENDAFTAR & PEMERIKSA KERETA-KERETA
MOTOR MELAKA v KS SOUTH MOTOR
[2000] : to develop own Malaysian
common law pertaining to registration of
vehicle ownership claim, COA referred
heavily to England as guidance.
vi.SAAD v CHAN HWAN HUA [2001] : to
develop Malaysian common law, the
Malaysian courts need not to look
exclusively to England only, but have to
survey other countries also eg Australia,
NZ, Canada, India & US. The Malaysian
courts are at liberty to shape rules of
common law & equity to suit local needs
without being bound hand & foot by
English cases.
 vii.SRI INAI v YONG [2002] : the court
recognised the liberty of Malaysian
courts to depart from English cases to
develop Malaysian common law which
serves the local needs.
Conclusion : above cases show that
Msian courts no longer refer solely
English authorities. Courts seemed to
examine leading cases in relevant
common law countries before making
decision to suit local cstances.
Existance of Malaysian common law
cannot be denied !
END OF TOPIC
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