SOURCES OF LAW:

English Law (Part 2)

ReStatutory Reception

Statute

Royal Charter of Justice

Malacca

and Penang

Civil Law Enactment

1937

Federated

Civil Law Extension

Ordinance 1951

UnFederated

Civil Law Ordinance

1956

Federation

Application of Law
Ordinance 1949

Sarawak

Application of Law
Ordinance 1951

Sabah

Malay States
Malay States

of Malaya ( Above 3)

Civil law Act 1956 ( revised

1972)
After

formation of Malaysia -1963

Sabah
Sarawak
West Malaysia
Act govern reception of English Law
into Malaysia
? What is received
?As at what date
? Qualification or conditions apply

Civil Law Act 1956

(Revised 1972)
Date

of coming into force:

7 April 1956 for West Malaysia
4 April 1972 for East Malaysia

Applicable to civil cases

only
Sia

Cheng Soon v Tengku Ismail

Tengku Ibrahim [2008] 5 CLJ 201

CLA

1956 concerns civil law, not

criminal law. The title of the Act says
so. The preamble also provides:
"An Act relating to the civil law to be
administered in Malaysia."

S 3 -general application of
English Law in Malaysia
3.

(1) Save so far as other provision has been made

or may hereafter be made by any written law in force in
Malaysia, the Court shall
(a) in Peninsular Malaysia or any part thereof, apply
the
common law of England and the rules of equity as
administered in England on the 7 April 1956;
(b) in Sabah, apply the common law of England
and the
rules of equity, together with statutes of general
application, as administered or in force in England on
1 December 1951;

S 3 -general application of
English Law in Malaysia
3.
(c)

in Sarawak, apply the common law of England

and the rules of equity, together with statutes
of general application, as administered or in force
in England on 12 December 1949, subject however
to subparagraph
(3)(ii):
Provided always that the said common law, rules of
equity and statutes of general application shall
be applied so far only as the circumstances of the
States of Malaysia and their respective inhabitants
permit and subject to such qualifications as local
circumstances render necessary.

Section 3
Section

3
(2) Subject to the express provisions
of this Act or any other written law in
force in Malaysia or any part thereof,
in the event of conflict or variance
between the common law and the
rules of equity with reference to the
same matter, the rules of equity
shall prevail.

What is common law?

Law

developed by judges through

decisions of court. (case law)
Enforced through the doctrine of
binding precedent.

What is rules of
equity?
There

were two parallel court

systems in England:
courts of law which enforced legal
justice, and
courts of equity
Equity means 'fairness' and is the
body of rules developed first by the
Lord Chancellor and by the old Court
of Chancery

Equity
A

set of legal principles, in

jurisdictions following the English
common law tradition, that
supplement strict rules of law where
their application would operate
harshly.

What is statutes of general

application?

the reasons for deciding that a statute is not of

general application are that it is of a local
personal or temporary nature, or that it is limited
in scope (e.g. a fiscal or revenue measure) or
that it deals with specific institution (e.g.
electricity board or an art gallery) or that it is
concerned with a limited class of persons (like
the Ecclesiastical Commissioners, or those who
work in the coal mining industry).

Per

Roberts CJ in Bong Sau Fei v Chong Chu Lien

[1965-86] 2 BLR 124

Statutes enumerated in 2nd Sch

of CLA applicable to Sarawak

Difference
Sabah

and Sarawak import statutes as well

as common law and equity
West Malaysia only import common law
and equity .
Cut off dates differ Effect of cut off dates English law before date
binding but English law after date
persuasive.
Must only apply in absence of written law
Suited as far as local circumstances permit
and subject to qualification as required.

The cut-off dates

Only

English common law and rules of equity

administered in England on 7 April 1956
can be applied to fill in the lacuna in the law.

Only

English common law and rules of equity

together with statutes of general application
administered in England on 1 December
1951 (Sabah) or 12 December 1949
(Sarawak) can be applied to fill in the
lacuna in the law.

Lee Kee Chong v Empat

Nombor Ekor
Court:

when referring to English

common law, the courts are
restricted to adopt English law as
administered at its effective date,
and any subsequent development in
England is not binding.

Cut off Dates

Binding

for before and on the date

but persuasive after .
Jamil Harun v Yang Kamsiah &
Anor ( 1984)
On issue on whether the Federal
Court was wrong to follow an
English case of Lim Poh Choo v
Camden ( 1980) in case of personal
injury . The Privy Council held

 It

was argued that section 3 CLA

prevents the Malaysian courts from
applying English cases decided after
7 April 1956 and as such, the
practice of Malaysian courts in
itemising damages for the purpose
of calculating interest on damages
by following English cases after 7
April 1956 is unlawful.

Lord Scarman
Their

Lordships do not doubt that it

is for the courts of Malaysia to
decide subject always to a statute
law of the Federation whether to
follow English case law . Modern
English authorities may be
persuasive but not binding .

Whether statutes of general application

are also applicable to Peninsular Malaysia
2

views (read Ahmad Ibrahim , The Malaysian Legal

System).
Bartholomew, GW The Commercial Law of Malaysia :
A Study in the Reception of English Law , 1965 ]
Malayan Law Journal p26- yes

Joesph

Chia Reception of English Law under Sections 3

and 5 CLA 1956 1974 JMCL 42 no

What

about the courts view on this matter?

West Malaysia does not

import statute
Pushpah

a/l Rajoo v Malaysian Cooperative Insurance Society Ltd &

Anor , in West Malaysia the plaintiff tried
to rely on an English statute to revoke a
nomination of her husband in his life
insurance policy made before marriage .
Held not possible to rely on English
statute to revoke nomination as S 3 only
admit common law and equity not statute
into West Malaysia

Leong Bee v Ling Nam Rubber

Works [1970] 2 MLJ 45
A

common law presumption that has

been displaced by an English statute
( before cut off date) formed no part
of the common law of England. Thus
has no application in Malaysia.

 Therefore,

if the common law is no

longer valid in England, then it
becomes inapplicable in Malaysia as
well.

No Malaysian written
law exists
(1)

Save so far as other provision

has been made or may hereafter
be made by any written law in
force in Malaysia, the Court shall

Dato Seri Anwar Ibrahim v PP

[2010] 7 CLJ 397
Once

there is written law in Malaysia

on that matter, English common law
and the rules of equity are excluded
from our law.

Absence of local
Legislation
Attorney

General Malaysia v Manjeet

Singh Dhillion ( 1991)
Supreme Court held that in absence
of any specific local legislation
concerning contempt of court , the
common law contempt as stated in
English case of R v Gary ( 1900)
should be applied under S 3

Sum
In

other words:
In the absence of written law
prohibiting the application of
developments in English law after 7
April 1956, a Malaysian court is
entitled to apply cases decided in
England after that date but not
bound to.

Commonwealth of Australia v Midford

(Malaysia) Sdn. Bhd. [1990] 1 CLJ 77, .
[1990] 1 MLJ 878

Section

3 of the Civil Law Act 1956

only requires any Court in West
Malaysia to apply the common law
and the rules of equity as
administered in England on 7 April
1956. That does not mean that the
common law and rules of equity as
applied in this country must remain
static and do not develop.

the States of Malaysia and their

respective inhabitants permit and
subject to such qualifications as local
circumstances render necessary

Local circumstances
Flash

Black to initial reception of English law Choa

Choon Neoh v Spottis woode ( 1869)

Maxwell

CJ
In the colony so much of the law of England was in
existence when it is imported here and as is of
general and not merely local policy and adapted to
the conditions and wants of the inhabitants is the law
of the land and further that law is subject in its
application to the various alien races established
here to such modifications as are necessary to
prevent it from operating unjustly and oppressively
on them

Syarikat Batu Sinar v UMBC

1990
Issue

was whether the negligent failure of a

finance company to indorse its claim to
ownership of a tractor on the Registration card
and whether it negligence forfeits it claim.
High Court that english practice on vehicle
endorsement in England voluntary whereas in
Malaysia it is based on statutory provisions .
English cases on the same should not be
considered as there is a difference based on
local circumstances and requirements

Guidelines on the
application of English
law

Jamil Harun case Lord

Scarman
Their

Lordships do not doubt that it

is for the courts of Malaysia to
decide subject always to a statute
law of the Federation whether to
follow English case law . Modern
English authorities may be
persuasive but not binding .

Commonwealth of Australia v Midford

(Malaysia) Sdn. Bhd. [1990] 1 CLJ 77, .
[1990] 1 MLJ 878

Section

3 of the Civil Law Act 1956

only requires any Court in West
Malaysia to apply the common law
and the rules of equity as
administered in England on 7 April
1956. That does not mean that the
common law and rules of equity as
applied in this country must remain
static and do not develop.

Nepline v Jones Lang

Wootton [1995] 1 CLJ 865

Court applied the proviso to S 3.

Abdul Hamid J:
I think I am entitled to go on and consider whether local
circumstances would require some "modification" to extend
the concept of the duty of care to an omission as in this
case. As I have said, I think the proviso to s. 3 of the
Civil Law Act 1956 allows me to do so if local
circumstances so require. Indeed the same thing was
done by Peh J in Batu Sinar 's case. In fact it can be said
that the Supreme Court in Commonwealth of Australia's
case did just that when it applied the post 1956 decisions of
the English Courts, even though the judgment did not say
so.

Nepline v Jones Lang

Wootton [1995] 1 CLJ 865
Abdul

Hamid J:

In applying s.3 of the Civil Law Act 1956, the approach the
Court should take is first to determine whether there is any
written law in force in Malaysia.
If there is none, then the Court should determine what is the
common law of, and the rules of equity as administered in
England on 7 April 1956.
Having done that the Court should consider whether "local
circumstances" and "local inhabitants" permit its application as
such. If it is "permissible" the Court should apply it. If not, the
Court is free to reject it totally or adopt any part which is
"permissible

Where the Court rejects it totally or in part, then

there being no written law in force in Malaysia, the
Court is free to formulate Malaysia's own
common law.
In so doing, the Court is at liberty to look at any
source of law, local or otherwise, be it England after
7 April 1956, principles of common law in other
countries, Islamic law of common application or
common customs of the people of Malaysia. Under
the provision of s.3 of the Civil Law Act 1956, that is
the way the Malaysian common law should develop.

Guidelines from the Nepline

case
1) See whether there is
If there is apply it!
2)

any written law in force in Malaysia.

If there is none, determine the English common law or

rules of equity on the cut-off date (be it 1956, 1951 or
1949)

3) Consider the local circumstances.

If local circumstances permit apply it!

4)

If not reject it totally, or adopt the part which is permissible.

If the court rejects it totally or in part, the court is free to

formulate Malaysias own common law.

 In

formulating Malaysias own

common law, the court is free to look
at any source of law, local or nonlocal.

The

common law of England after

the cut-off date, statutes of general
application after 1951/1949,
principles of common law in other
countries, common custom of people

English commercial law

Historical
2nd RCJ
Regina

background:

v Willans: Whatever law

enforced in England in 1826
becomes part of the law of the
Straits Settlements.
The cut-off date is 1826.

Straits Settlements Civil Law

Ordinance 1878
Civil

Law Ordinance 1878 was introduced

into the Straits Settlements.
Section 6 provided for the continuous
reception of English commercial law.
the law to be administered shall be the
same as would be administered in England
in the like case at the corresponding
period
CLO 1878 overruled Regina v Willans.
--origin

of S 5 CLA

Section 5 Civil Law Act

1956

Section 5: Application of English

law in commercial matters

(1) In all questions or issues which arise or which have

to be decided in the States of Peninsular Malaysia
other than Malacca and Penang with respect to
the law of partnerships, corporations, banks and
banking, principals and agents, carriers by air, land
and sea, marine insurance, average, life and fire
insurance, and with respect to mercantile law
generally, the law to be administered shall be the
same as would be administered in England in the like
case at the date of the coming into force of this
Act, if such question or issue had arisen or had to be
decided in England, unless in any case other
provision is or shall be made by any written law.

(2) In all questions or issues which arise or which

have to be decided in the States of Malacca,
Penang, Sabah and Sarawak with respect to
the law concerning any of the matters referred
to in subsection (1), the law to be
administered shall be the same as would be
administered in England in the like case at the
corresponding period, if such question or
issue had arisen or had to be decided in
England, unless in any case other provision
is or shall be made by any written law.

Effective dates

Subsection (1): All states of Peninsular Malaysia

except Malacca and Penang
To apply English commercial law at the date of
the coming into force of this Act (i.e. 7 April
1956 is the cut-off date)
Subsection (2): Malacca, Penang, Sabah and
Sarawak
To apply English commercial law at the
corresponding period.
There is no cut-off date. Reception is continuous.

the law to be
administered
the

law to be administered shall be

the same as would be administered
in England in the like case
Allows a wider reception of English
law.
Allows even the reception of statutes
or written law into West Malaysia.
(Note

that under S 3, only common

law and equity apply in West

Proviso
unless

in any case other provision is

or shall be made by any written law

Reception

of English commercial law

is subject to local statutes.

with respect to
mercantile law
generally

Definition of merchantile
law
The

law on buying and selling

merchandise
Per Wood J
in Vulcan Match Co. v Herm Jebsen

Nagurdas Purshotumdas
A

whole body of lawwhich are of

particular importance to persons engaged
in trade and commerce

Selling

sugar. Done in Singapore.

Delivery from Java to Bombay.
Resp did not pay so appl brought an action
for breach of contract to recover the money.
Resp counterclaimed for damages for late
delivery of goods.

 Appl

reason for late delivery:

Requisition of ships by British
government.
This was empowered by two British
Acts:
Defence of the Realm (Amendment) Act

1915
Courts (Emergency Powers) Act 1917

Issue:
Whether the two statutes
(i.e. the Defence of the Realm
(Amendment) Act 1915 and the Courts
(Emergency Powers) Act 1917)
are part of merchantile law generally.

Court of Appeal:
Court

of Appeal:
No, the statutes are not part of
merchantile law.
Therefore, the appls defence was
struck off and the appl was liable for
the late delivery.

Privy Council:
Privy

Council allowed the appeal.

The question here is a question of
sale.
The law of sale is part of merchantile
law.
If the situation was in England, then
the two statutes could be pleaded.

 Lord

Dunedin:
it is not the merchantile law but the law which
is to be the same as the law which would be
administered in England in the like case.
The first thing to be settled is: Has a question or
issue arisen in the Colony with respect to here
follow the enumerated departments of law and
then come the general words and with respect to
merchantile law generally? Now the question
here to be decided in the Colony is a question as
to the law of sale. No one can doubt that the law
of sale is part of merchantile law.

 if

the same question as to sale had

to be decided at the same time in
England, it is clear beyond all doubt
that the above cited statites of 1915
and 1917 could be pleaded

Implication from Nagurdas

case:
Any

Act that has a connection with

merchantile law will be covered by
the term with respect to mercantile
law generally.
Therefore, the Act will have its
application under section 5 of CLA.

Alternative view PC Shaik Sahied bin Abdullah

Bajerai v Sockalingam Chettiar 1933 2 MLJ 81

Pt

sued for money due on promissory

note an a cheque . In defence the
defendant relied on absence of a
written memorandum as required
under English Moneylenders Act . Issue
whether the statute could be pleaded
in the SS. TJ held that applying
rationale in Seng Djit Hin case statutes
could be pleaded but not applicable

Shaik Sahied bin Abdullah Bajerai v

Sockalingam Chettiar 1933 2 MLJ 81
PC Lord Atkin took the approach
Statutes not part of merchantile law

because they contained clauses that that

excluded from their scope the borrowing
of money in the course of ordinary
commercial transaction. As not part of
merchantile law then not applicable.
Approach taken looks at the nature of the
statute to be applied .

No local Circumstances
in S 5
But

in Sockalingam Chettiar case

the nature of the statue and locality
of it was considered by the court to
render it inapplicable.

Sale of Goods Act 1957

The Malaysian SOGA

Low Hock Jee v Mayban

Finance [1996] 2 CLJ 479
Sale

and purchase of a car. The car was

subsequently forfeited by customs.
Issue: whether Malaysian SOGA 1957 applies in
SS?
Court:

.......The Malaysian Sale of Goods Act 1957 is not

applicable to Sabah and Sarawak. By reason of
Section 5(2) of the Civil Law Act 1956, reference
has to be made to the United Kingdom Sale of
Goods Act 1979, being the law applicable to
Sabah and Sarawak

Heng Long Motor v Osman

[1994] 2 MLJ 456
(Sarawak)
Sale

and purchase of a car in 1983.

The issue was which of the three statutes apply?
UK SOGA 1979
UK SOGA 1893
Malaysian SOGA 1957

Court:

Since the transaction took place in 1983, by

virtue of s 5(2) of the Civil Law Act 1956, the law
applicable in Sarawak for the purpose of this case
was the UK Sale of Goods Act 1979 and not s 12 of
the UK Sale of Goods Act 1893 or s 14 of the Sale of
Goods Act 1957 (West Malaysia).

Tan Chong v Alan McKnight

[1983] 1 MLJ 220
(Penang)
A

contract was entered into between

18/5/73 t0 6/12/79.
Court: the applicable statute was UK
SOGA 1979.

Section 6 Civil Law Act

1956

Section 6 -- Immovable
property
Nothing

in this part shall be taken

to introduce in Malaysia or any of the
States comprised therein any part of
the law of England relating to the
tenure or conveyance or assurance
of or succession to any immovable
property or any estate, right or
interest therein.

 Chin

Choy v Collector of Stamp Duties

[1981] 4 MLJ 47
UMBC v Pemungut Hasil Tanah Kota
Tinggi [1984] 2 MLJ 87- cannot apply
equity of redemption concept under
English land law
In

both cases, the courts held that there

was no room for importation of English
land law.

Specific Statutory
provisions
S

47 (1) Partnership Act 1961 rules

of equity and common law continue
in force except where inconsistent
with Act .

101 (2) Bill of Exchange Act 1949

subject t o provision written law
commonlaw of England including the
law of merchant continues unless
contrary to Act apply to BOE ,