QUESTION 2:

(i) Pak
There are two issues here. The first issue is whether the courts in Malaysia have a
jurisdiction to hear a matter between Soko and Pak.
The parties in this case are Soko and Pak. A contract was entered into and signed by
both parties in Tokyo on 9.6.2014. The breach of contract occurred in Tokyo, Japan. Soko is
a Malaysian citizen resident in Ipoh, Perak while Pak is a Korean national who resides in
Seoul. The subject matter of the contract is a piece of land in Sandakan, Sabah.
According to Section 23(1) of Courts of Judicature Act (CJA) 1964, the High Court
has jurisdiction to try all civil proceedings where:
(a) the cause of action arose;
(b) the defendant or one of several defendants resides or has his place or business; or
(c) the facts on which the proceedings are based exist or are alleged to have occurred;
or
(d) any land the ownership of which is disputed is situated,
within the local jurisdiction of the court and where all parties consent in writing within the
local jurisdiction of other High Court. However, this is subject to the limitations contained in
Article 128 of the Constitution.
The courts in Malaysia will not have jurisdiction to hear a matter if none of the
condition set out in section 23(1) of CJA 194 is satisfied. In Lam Kok Trading (Pte) Ltd &
Anor v Yorkshire Switch Gear & Engineering Co Ltd1, the court held that it had no
jurisdiction to deal with the matter where the contract was made outside the jurisdiction. In
this case the defendant was resident outside Malaysia and had no place of business within the
jurisdiction and the breach of contract also occurred outside the jurisdiction.
In contrast, the Privy Council in Distillers Biochemical v Thompson, took a liberal
approach. In this case a company in England manufactured and sold a drug in England to an
Australian company in England. The drug was taken to New South Wales by the Australian
company and sold to a pregnant woman. As a result the plaintiff was born disabled. The
English company or the Australian company or the label on the drug did not warn purchasers
of the harmful effect on a foetus if the drug was taken by a pregnant woman. The plaintiff
filed an action in New South Wales but the courts there dismissed it for want of jurisdiction.
On appeal to the Privy Council, it was held the word cause of action under section 18(4) of
the Common Law Procedure Act of New South Wales means the act on the part of the
defendant which gave the plaintiff a cause of complaint. As the English company failed to
warn the purchaser in the New South Wales of the dangers of the drug, the plaintiffs cause of
action arose within the jurisdiction of the court in New South Wales.
1

[1971] AC

In applying to the facts at hand, although the defendant was resident outside Malaysia,
had no place of business within the jurisdiction and the breach of contract occurred outside
the jurisdiction, the court can still hear the matter because the subject matter of the contract,
which is a piece of land was situated in Sandakan, Sabah which is covered by s.23(1)(d) of
CJA 1964. Therefore, the High Court of Sabah and Sarawak will have a jurisdiction to hear
the matter.
The second issue is whether on the facts, the High Court at Ipoh has the jurisdiction
and the proper forum to hear and adjudicate the matter.
The two High Courts namely the High Court in Malaya and the High Court in Sabah
and Sarawak, have co-ordinate jurisdiction and status pursuant to Article 121(1) of the
Federal Constitution. Co-ordinate literally means equal or of the same order or rank and
not subordinate to the other.
In Syarikat Nip Kui Cheong Timber Contractor v Safety Life and General
Insurance Co Sdn Bhd,2 one of the issues was whether the plaintiffs who have their place of
business in Tawau, Sabah can sue in Peninsular Malaysia as a firm. The court held that the
High Court in Malaya and the High Court in Borneo have separate and distinct territorial
jurisdictions.
Section 3 of CJA 1964 defines local jurisdiction to mean:
(i) in the case of the High Court in Malaya, the territory comprised in the States of
Malaya, namely, Johore, Kedah, Kelantan, Malacca, Negeri Sembilan, Pahang,
Penang, Perak, Perlis, Selangor and Terengganu, and
(ii) in the case of the High Court in Sabah and Sarawak, the territory comprised in the
Borneo States, namely Sabah and Sarawak including , in either case, the territorial
waters and the air space above those States and the territorial waters.
In Sogelease Advance (Malaysia) Sdn Bhd v Kemajuan Tat Yong Sdn Bhd &
Ors, a hire purchase agreement was executed by the parties in Kuala Lumpur but the
defendants were residing and carrying on business in Sarawak. The issue was whether High
Court of Malaya or High Court of Sabah and Sarawak has jurisdiction. The court stated that
the civil jurisdiction of the High Court of Malaya and the High Court of Sabah Sarawak is
governed by section 23(1) of the Courts of Judicature Act 1964 and the representative High
Court would have the jurisdiction to try an action, if any one of the circumstances mentioned
in paragraphs (a), (b), (c), and (d) of the said section, falls within its local jurisdiction.
In applying to the facts given in the situation, the fact that the subject matter was of
the contract of sale of land covered by s.23(1)(d) of CJA 1964 does not give the High Court
of Malaya a jurisdiction over the matter pursuant to s 3 of CJA 1964. The High Court at Ipoh
2

[1975] 2 MLJ 115

has no jurisdiction and not the proper forum to hear and adjudicate the matter. Therefore,
Soko cannot take an action against Pak at the High Court at Ipoh since the High Court of
Malaya and High Court of Sabah and Sarawak have separate and distinct territorial
jurisdictions.
(ii) Satu
The issue is whether the High Court of Ipoh has a jurisdiction to hear the case against
Satu for injuries suffered by him due to Satus negligent driving in Japan.
According to s 23 of Courts of Judicature Act, the High Court has jurisdiction to try
all civil proceedings where the cause of action arose, or the defendant or one of several
defendants resides or has his place or business, or the facts on which the proceedings are
based exist or are alleged to have occurred, or any land the ownership of which is disputed is
situated within the local jurisdiction of the court and where all parties consent in writing
within the local jurisdiction of other High Court. O.11 R.1 of RHC gives authority to the
court to assume jurisdiction over absent or overseas defendants in limited circumstances by
way of service of notice of the writ. O.77 R.1 RHC provided that any two or more persons as
partners in respect of cause of action and carrying on business within jurisdiction may sue or
be sued in the name of the firm.
In Lam Kok Trading v Yorkshire Switchgear [1975] 1 MLJ 239, the contract was
made outside jurisdiction i.e. England. The defendant did not reside or have his place of
business in Malaysia. Furthermore, the breach of contract occurred outside Malaysia. It was
held that the High Court had no jurisdiction to hear the case. In the case of Sova Sdn Bhd v
Kasih Sayang Realty Sdn Bhd, it was held that each branch of the High Court has concurrent
jurisdiction but the defendant must be put into inconvenience (forum convenience).
Concurrent jurisdiction means equal status between HC Malaya and HC S&S. However, in
contrast, the Privy Council in Distillers Biochemical v Thompson, took a liberal approach. In
this case a company in England manufactured and sold a drug in England to an Australian
company and sold to a pregnant woman. As a result the plaintiff was born disabled. The
English company or the Australian company or the label on the drug did not warn purchasers
of the harmful effect on a foetus if the drug was taken by a pregnant woman. The plaintiff
filed the action in New South Wales but the courts there dismissed it for want off jurisdiction.
On appeal to the Privy Council, it was held the word cause of action under s 18(4) of the
Common Law Procedure Act of New South Wales means the act on the part of the defendant
which gave the plaintiff a cause of complaint. As the English company failed to warn the
purchaser in New South Wales of the dangers of the drug, the plaintiffs cause off action
arose within the jurisdiction of the court in New South Wales.
In application, Satu drove negligently and the accident occurred causing seveere
injuries to Soko in Japan. Based on the case Lam Kok Trading, the High Court of Ipoh have
no jurisdiction to hear the case which occur outside jurisdiction which is in Japan. However,
by virtue of S.23 of CJA, Soko who resided in Medan, Sumatra is a partner of firm operates
in Indonesian restaurant in Penang. This shows that Soko has his place of business by virtue

of S.123(b) of JCA in Penang, Malaysia and the High Court in Malaysiaa shall have
jurisdiction to try the case. Soko should take an action against Satu in High Court of Penang
since Satu has place of business in Penang but by virtue of the case of Sova Sdn Bhd and
Distillers Biochemical v Thompson, High Court of Ipoh has concurrent jurisdiction but Satu
must be put into forum convenience. The high court of Ipoh also may sue the defendant by
the name of the firm operates in Indonesian Restaurant (by virtue O.77 R.1) and Satu can be
sued by way of service of notice orf the writ (by virtue O.11 R.1)
In conclusion, the High Court of Ipoh has jurisdiction to hear the case.