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Journal Malaysian Judiciary JOURNAL JOURNAL OF THE MALAYSIAN JUDICIARY MALAYSIAN THE OF JOURNAL OF THE MALAYSIAN JUDICIARY January 2019 January 2019 Barcode ISSN 0127-9270 JOURNAL OF THE MALAYSIAN JUDICIARY January 2019 JOURNAL OF THE MALAYSIAN JUDICIARY MODE OF CITATION Month [Year] JMJ page ADMINISTRATIVE SERVICE Publication Secretary, Judicial Appointments Commission Level 5, Palace of Justice, Precinct 3, 62506 Putrajaya www.jac.gov.my Tel: 603-88803546 Fax: 603-88803549 2019 © Judicial Appointments Commission, Level 5, Palace of Justice, Precinct 3, 62506 Putrajaya, Malaysia. All rights reserved. No part of this publication may be reproduced or transmitted in any material form or by any means, including photocopying and recording, or storing in any medium by electronic means and whether or not transiently or incidentally to some other use of this publication, without the written permission of the copyright holder, application for which should be addressed to the publisher. Such written permission must also be obtained before any part of this publication is stored in a retrieval system of any nature. Views expressed by contributors in this Journal are entirely their own and do not necessarily reflect those of the Malaysian Judiciary, Judicial Appointments Commission or Malaysian Judicial Academy. Whilst every effort has been taken to ensure that the information contained in this work is correct, the publisher, the editor, the contributors and the Academy disclaim all liability and responsibility for any error or omission in this publication, and in respect of anything or the consequences of anything done or omitted to be done by any person in reliance, whether wholly or partially, upon the whole or any part of the contents of this publication. ISSN 0127-9270 (bi-annually) Published by Judicial Appointments Commission Level 5, Palace of Justice, Precinct 3, 62506 Putrajaya, Malaysia. Editing, design and layout by for RDA Press Sdn Bhd THE MALAYSIAN JUDICIAL Academy* CHAIRMAN The Rt. Hon. Tan Sri Datuk Seri Panglima Richard Malanjum Chief Justice MEMBERS The Rt. Hon. Tan Sri Dato’ Sri Ahmad bin Haji Maarop President of the Court of Appeal The Rt. Hon. Tan Sri Zaharah binti Ibrahim Chief Judge of Malaya The Rt. Hon. Datuk Seri Panglima David Wong Dak Wah Chief Judge of Sabah and Sarawak Justice Tan Sri Dato’ Sri Azahar bin Mohamed Judge of the Federal Court Justice Dato’ Sri Balia Yusof bin Haji Wahi Judge of the Federal Court Justice Datuk Nallini Pathmanathan Judge of the Federal Court Justice Datuk Dr. Badariah binti Sahamid Judge of the Court of Appeal SECRETARY Mr. Wan Khairilanwar bin Wan Muhammad Secretary, Judicial Appointments Commission * As of January 1, 2019. Publication COMMITTEE OF THE Malaysian Judicial Academy* MANAGING EDITOR Justice Tan Sri Idrus bin Harun Judge of the Federal Court MEMBERS Justice Dato’ Alizatul Khair binti Osman Khairuddin Judge of the Federal Court Justice Datuk Nallini Pathmanathan Judge of the Federal Court Justice Datuk Dr. Badariah binti Sahamid Judge of the Court of Appeal Justice Dato’ Zabariah binti Mohd. Yusof Judge of the Court of Appeal Justice Mohd. Nazlan bin Mohd. Ghazali Judge of the High Court of Malaya Mr. Wan Khairilanwar bin Wan Muhammad Secretary, Judicial Appointments Commission Ms. Adibah Al-Husna binti Abdul Rahim Deputy Secretary, Judicial Appointments Commission SECRETARY Ms. Suraiya binti Mustafa Kamal Judicial and Legal Officer OFFICER Ms. Ilham binti Abd Kader Judicial and Legal Officer * As of January 1, 2019. PANEL OF REFEREES Justice I Gusti Agung Sumanatha, S.H., M.H. Hakim Agung Mahkamah Agung Republik Indonesia Justice Madan Bhimarao Lokur Judge of the Supreme Court India Justice Belinda Ang Judge of the Supreme Court Singapore Justice Brian W Lennox Judge of the Ontario Court of Justice Canada Dato’ Associate Professor Dr. Johan Shamsuddin Sabaruddin Dean, Faculty of Law Universiti Malaya, Kuala Lumpur Malaysia Professor Leong Wai Kum National University of Singapore Singapore David Pittaway QC Head of Hailsham Chambers, London United Kingdom Associate Professor Low Chee Keong CUHK Business School Hong Kong CONTENTS From Paternalism to Patient Autonomy: The Changes and Implications Arising From the Decision of the Singapore Court of Appeal in Hii Chii Kok v Ooi Peng Jin London Lucien & Anor [2017] 2 SLR 492 The Honourable Chief Justice Sundaresh Menon ................................................1 The Dilemma of Concurrent Criminal and Civil Proceedings Justice Gunalan Muniandy ................................................................................32 Sovereign Immunity, Domestic Immunity and State-Owned Enterprises Justice Dr Anselmo Reyes ..................................................................................46 Assessment of Damages in Defamation: Reconciling the Irreconcilable? Dato’ Wan Ahmad Farid Wan Salleh .................................................................60 Constitutional Amendments: Form and Substance – Issues at the Periphery of Constitutionalism Emeritus Professor Datuk Dr Shad Saleem Faruqi ...........................................82 Eastminsters: Decolonisation and State-Building in British Asia Dr Harshan Kumarasingham ..........................................................................124 Berjaya Times Square Revisited: What’s in a Name? Dr David Fung Yin Kee ...................................................................................169 Preface We welcome our esteemed readers to the sixth issue of the Journal of the Malaysian Judiciary. Building from the successful publication of the Journal since its inaugural publication in July 2016, in this issue, we continue to delve into various interesting areas of law as part of our knowledge sharing, learning process and capacity development. You will notice in this issue that we discuss the subject of doctor-patient relationship focusing in particular on the move away from a paternalistic view of medical practice to one that places much greater weight on the autonomy of the patient. The issues surrounding Parliament’s monumental power to amend the constitution are discussed in the article on constitutional amendments, whereas the article on criminal and civil proceedings highlights a just and proper approach to be adopted by the court in addressing the situation where criminal and civil proceedings in respect of a common party or parties and the same act or transaction are instituted and scheduled to proceed simultaneously. Other interesting areas of law which are analysed in this issue are sovereign immunity, domestic immunity and state-owned enterprises with the spotlight on the enforcement of an investment treaty arbitration award by investors against a state, assessing damages in defamation, the effect of the decision in Berjaya Times Square Sdn Bhd v M-Concept Sdn Bhd which concerns breach of contract and remedies as well as the enforcement of liquidated damages, and the adoption of the Westminster-style government in decolonisation and state building in British Asia. We are happy to mention that there is plenty more this Journal will offer as we march on from here into the future, in particular in the upcoming issue in the second half of this year. It is our fervent hope that you will continue to give strong support to the Journal and that more judges, legal and judicial officers, lawyers and members of academia will contribute interesting articles to it. We hope you will find the articles in this issue insightful. Justice Idrus Harun Managing Editor From Paternalism to Patient Autonomy: The Changes and Implications Arising From the Decision of the Singapore Court of Appeal in Hii Chii Kok v Ooi Peng Jin London Lucien & Anor [2017] 2 SLR 492 by The Honourable Chief Justice Sundaresh Menon* I. Introduction [1] In May 2017, the Singapore Court of Appeal delivered its decision in Hii Chii Kok v Ooi Peng Jin London Lucien & Anor1 (“Dato’ Hii”), where it considered the question of when a doctor would be held to have fallen short of the standard of care expected of him in the provision of medical advice. In Dato’ Hii, the patient submitted that the Singapore courts should depart from the well-established standard set by the English High Court more than 60 years ago in Bolam v Friern Hospital Management Committee2 (“Bolam”) which, as supplemented by an addendum from the later decision of the House of Lords in Bolitho v City and Hackney Health Authority3 (“Bolitho”), has come to be known as the “Bolam-Bolitho” test. Given the significance of the issue at stake, the court took the unusual step of convening a five-judge panel to consider the matter; and although the State was not a party to the dispute, the Attorney-General deemed the matter of sufficient public importance that he sought and obtained leave to furnish written submissions on the points of policy involved. After careful consideration of all the relevant material, the Court of Appeal decided to depart in some respects from the Bolam-Bolitho test in favour of a new test. * Chief Justice of Singapore. This paper is a slightly revised version of a lecture that was delivered on November 19, 2018 at the Academia, Singapore General Hospital. I am grateful to my law clerks, Hairul Hakkim and Tan Ee Kuan and to my colleague Assistant Registrar Scott Tan, for all their assistance in the research for and preparation of this paper. 1 [2017] 2 SLR 492 (“Dato’ Hii”). 2 [1957] 1 WLR 582 (“Bolam”). 3 [1998] AC 232 (“Bolitho”). 2 Journal of the Malaysian Judiciary January [2019] JMJ [2] Dato’ Hii has been of significant
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