2018

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Dato’ Mohd Hishamudin Yunus

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Harcharan Singh Ujagar Singh

Abstract
In a landmark decision, a full bench of nine Justices of the United Kingdom Supreme Court in Patel v Mirza [2016] UKSC 42, [2017] AC 467 reviewed the proper approach to be taken by courts when confronted with a defence of illegality in private law claims. The claim in question was for the restitution of unjust enrichment arising out of a failed contract in which the claimant had paid a sum of money to the defendant pursuant to an illegal purpose that did not materialise. The Supreme Court unanimously allowed restitution, but there was a sharp difference in opinion on the proper approach to be adopted towards the illegality defence. A majority of the Supreme Court prescribed a new approach which the minority rejected. Whilst the new approach was formulated in the context of a claim for the restitution of unjust enrichment, it is arguable that the majority intended it to apply in all the other areas of private law involving the illegality defence. This paper seeks to examine how, if at all, the new approach has settled or clarified English law in the confused and confusing area of illegality.


Keywords: defence of illegality, recovery claims, rejection of rule-based approach, trio of considerations, proportionate response.

Abstract

Communities have been identified as being at risk of statelessness In Malaysia. Massey’s definition of de facto statelessness is used to provide an understanding of how communities in Sabah are potentially de facto stateless. The article will touch on the history of migration and relate it to how migration from Philippines and Indonesia has brought about this situation of statelessness in Sabah. The article delves into the causes of statelessness in general and the Sabah stateless in particular. The consequences of being stateless will then be analysed. The article concludes with suggestions on how to move forward in terms of Sabah including how incorporation of International Law and the liberal interpretation of the Federal Constitution of Malaysia can assist in providing status to the Sabah stateless.


Keywords: de facto, de jure, stateless.

Abstract
The offence of rape is provided for in section 375 of the Penal Code. This paper seeks to first identify what are the elements that make up the offence of rape. After identifying the elements and looking at the relevant case law, this paper will discuss if the law is satisfactory or not. Specifically, this paper will discuss if there is a need for the law to be gender specific, if rape should only be limited to vaginal sexual intercourse, are the 7 circumstances provided in section 375 necessary, should the age of consent be amended, should the exception remain and should there be a specific reference to the mental element of the perpetrator. In examining these issues, reference will also be made to the law on rape in neighbouring countries like Singapore and Thailand, as well as the law in India (as the Penal Code is based on the Indian Penal Code) and in the United Kingdom.


Keywords: criminal law, sexual offences, rape