IN THE COURT OF APPEAL MALAYSIA

(APPELLATE JURISDICTION)

CIVIL APPEAL NO. T-04 (IM(NCVC) 349 - 11/2014

BETWEEN

AZID BIN MUSA

(IC: 600309-03-5199) ....APPELLANT

AND

MOHD SUHAMI BIN SHAFIE

(IC: 861001-46-5315)

(A patient and disabled represented

by a representative friend and brother, who is

MOHD YUNAN BIN SHAFEI IC: 721001-11-5599) ....RESPONDENT

(In The Matter of High Court of Malaya Kuala Terengganu

In The State of Terengganu Darul Iman, Malaysia)
Appeal No. 12 NCVC(A) - 01 - 04/2014
BETWEEN

AZID BIN MUSA

(IC: 600309-03-5199) ....APPELLANT
AND

MOHD SUHAMI BIN SHAFIE

(IC: 861001-46-5315)
(A patient and disabled represented
by a representative friend and brother, who is
MOHD YUNAN BIN SHAFEI IC: 721001-11-5599) ....RESPONDENT
 (In The Session Court at Kuala Terengganu
In The State Terengganu Darul Iman, Malaysia)
Civil Suit No. A53KJ - 42 - 09/2013
BETWEEN

MOHD SUHAMI BIN SHAFIE

(IC: 861001-46-5315)
(A patient and disabled represented
by a representative friend and brother, who is
MOHD YUNAN BIN SHAFEI IC: 721001-11-5599) ....PLAINTIFF
AND

AZID BIN MUSA

(IC: 600309-03-5199) ....DEFENDANT

RESPONDENTS’S WRITTEN SUBMISSION

Dated the 12th of MAY, 2022.

SOLICITOR OF THE RESPONDENT

MESSRS HIZWAR & CO

Lot 2954, Tingkat 1
Jalan Putra
Bandar Baru Pasir Pekan
16250, Wakaf Bharu
Kelantan Darul Naim.
Counsels:

1. DRAVID SAMUEL (BLAL 19055497)

2. CHAI WEI WAN (BLAL 19055833)

INTRODUCTION

1. This is an Appeal by the Appellant/Defendant against the Judgment

pronounced by the High Court of Kuala Terengganu on 28/09/2014 in favour
of the Respondent/ Plaintiff in the Civil Appeal No. 12 NCVC(A)-01-04/2014
wherein the Learned High Court Judge, YA Dato’ Haji Mohd Yazid Bin Haji
Mustafa, which this civil suit originated from Sessions Court of Kuala
Terengganu.
2. The Appellant herein was the Defendant in the Civil Suit No. A53KJ-42-
09/2013 whereas the Respondent named herein was the Plaintiff in the said
Civil Suit.

BACKGROUND OF THE CASE

A motor vehicle accident happened between Mohd Suhaimi Bin Shafie, a

Respondent/Plaintiff who is a motorcyclist driver bearing Registration No. DAX 4584
with Azid Bin Musa, an Appellant/ Defendant that was driving a motor van bearing
Registration No. DS 6887.

The Respondent is a disabled person who is represented by his brother,

Mohd Yunan bin Shafei. Respondent was a rider of motorcycle with a registration
No. DAX 4584. Appelant was a driver and owner of a motorvan with the registration
No. DS 6887. On 20.01.2022, at 3.00pm, Respondent was heading from Jerteh
towards Pasir Akar. When he arrived at Kampung Durian Telor, Jerteh, Besut,
Terengganu, Appellant who was driving on his lane encroached to the opposite
direction due to dodging a cow and eventually hit Respondent, who was on his right
lane. Therefore, on 24.09.2013, the Respondent, through his lawyer filed a writ of
summons against the Appellant claiming general & special damages for injuries
resulting from the accident.

The Appellant, Azid Bin Musa, was not satisfied with the decision of the
Honourable Judge Dato' Yazid bin Mustafa of the High Court in Kuala Terengganu,
which dismissed the Appellant's appeal against the decision of the Judge of the
Kuala Terengganu Sessions Court on March 27, 2014 and filed an appeal to the
Court of Appeal against the entire decision.

1
ISSUES TO BE TRIED

1. Whether the litigation representative need to obtain leave from High Court
according to Order 76 of Rules of Court 2012 to represent the Respondent,
who is a patient following the definition under the Mental Health Act 2001?
2. Whether the Respondent is required to apply before the High Court to
determine the Respondent is a mentally disordered person and appoint a
committee to act on his behalf according to Sections 52(1) and 58(1) of the
Mental Health Act 2001?

THE PRELIMINARY OBJECTION RAISED TOWARDS THE APPELLANT’S

SOLICITORS

Ground 1: The delay in filing the notice of appeal

1. Section 67 (1) of the Courts of Judicature Act 1964 ordains that: -

“The Court of Appeal shall have jurisdiction to hear and
determine appeals from any judgment or order of any High Court in any civil
cause or matter, whether made in the exercise of its original or of its appellate
jurisdiction, subject nevertheless to this or any other written law regulating the
terms and conditions upon which such appeals shall be brought.”
2. The abovesaid section shall read together with Rule 12 of the Rules of the Court
of Appeal 1994. It reads that: -
“No appeal shall, except by leave of the Court, be brought after the expiration of
thirty days—
(a) in the case of an appeal from an order in Chambers, from the date when
such order was pronounced at the hearing;
(b) in the case of an appeal against the refusal of an application, from the date of
such refusal;
(c) in all other cases, from the date on which the judgment or order appealed
against was pronounced.”
3. Pursuant to the Section 67 (1) of the Courts of Judicature Act 1964, the
application of any appeal to the Court of Appeal against the decision of the High
Court Appeal is “subject nevertheless to this or any other written law regulating
the terms and conditions upon which such appeals shall be brought.” Rule 12 of

2
 the Rules of the Court of Appeal 1994 therefore falls within the scope of “any
other written law” which regulates an appeal.
4. It is therefore a mandatory requirement to abide the Rule 12(b) of the Rules of
the Court of Appeal 1994 to file the notice of appeal within 30 days or 1 month
time following the word of “shall” denotes the obligatory of it. However, there is
exception to such time limit where if the Applicant have obtained “leave of the
court” following the same aforesaid rule.
5. In Chuah Tim Lan v RHB Bank Bhd & Anor [2008] 6 MLJ 793, Suriyadi JCA
at p.804 had cited the statement from Alauddin JCA in Low Cheng Soon v TA
Securities Sdn Bhd [2003] 1 MLJ 389, where the court clearly expressed that: -
[marked as “Tag-A” of Respondent’s Bundle of Authorities (BOA)]
“There is no doubt in our minds and we agree with learned counsel for the
Respondent that this rule is mandatory. There are abundant authorities decided
in our courts to suggest that the word 'shall' when used in any legislation means
'obligatory'. Suffice it is for us to say that the word 'shall'…reflects a measure of
mandatoriness in it. As this is a mandatory rule it must therefore be strictly
adhered to.”
6. We submit that this appeal shall be dismissed ad limine as the Appellant/
Defendant had failed to comply with the mandatory requirement of the above
provision that a notice of appeal shall be file within 30 days from the date of the
decision of the High Court trial, that is on 28.09.2014. Such non-compliance is
fatal.

Computation of 30 days

7. Section 54(1) of the Interpretation Acts 1948 and 1967 (“Interpretation Acts”)
provides that:

“(1) In computing time for the purposes of any written law-

(a) a period of days from the happening of an event or the doing of any act
or thing shall be deemed to be exclusive of the day on which the event
happens or the act or thing is done;
(b) if the last day of the period is a weekly holiday or a public holiday
(referred to in this subsection as excluded days) the period shall include
the next following day which is not an excluded day;

3
 (c) where any act or proceeding is directed or allowed to be done or taken
on a certain day, then, if that day happens to be an excluded day, the act
or proceeding shall be considered as done or taken in due time if it is
done or taken on the next following day which is not an excluded day; and
(d) where any act or proceeding is directed or allowed to be done or taken
within any time not exceeding six days, excluded days shall not be
reckoned in the computation of the time.”
8. It is clear from the provision that: -
a. referring to paragraph (1) (a), the calculation of the 30-day would start
running from 28/09/2014;
b. paragraph (1)(d) does not apply as the period in issue is more than six days,
as such the Saturdays’ and Sundays’ (referred to in the Interpretation Acts
as “excluded days”) shall be taken into account in the 30-day computation;
and
c. as the 30th day (27/10/2014), does not occur on any of the excluded days,
being a Monday and not a weekly holiday or a public holiday, paragraph (1)
(b) does not apply.
d. Therefore, we submitted that the 30-day period started counting from
28/09/2014 and ended on 27/10/2014, where the notice of appeal is filed
only on 28/10/2014, a day after the expiration of the terms.
e. Although there is just a day in delay, which is seems small matter and our
submission is not being considerate, however, if from different angle, why
the learned counsel could not file the notice of appeal a day earlier, which is
accurately on the expired date (27/10/2014). We raise such matter on the
good faith and it is our duty to address to this court on matter that we alert of
on top of that there is no reason furnished for the said delay.
f. This is supported by the salient fact that the Record of Appeal prepared by
the Lower Court Registry, the date-stamping on the notice of appeal was
only filed on 28/10/2014 in addition to the signature date of the Learned
Counsel also dated the same, where the details in Notice of Appeal to Court
of Appeal in Part A, Item 8, at Page 16 and 17 of the Record of Appeal
showed the following: -

4
9. We acknowledge that this Honourable court might wish to exercise the discretion
towards the delay matter. Nonetheless, the burden of proof shall lay on the
Appellant. In spite of that, referring to the case of Chuah Tim Lan v RHB Bank
Bhd & Anor [2008] 6 MLJ 793, Suriyadi JCA provides that: - [marked as “Tag-
A” of the Respondent’s BOA]
“Delay per se may not be fatal, but without supplying a reasonable explanation
may have the effect of the court being unsympathetic to an applicant who wishes
an extension of time. How is the court to exercise its discretion when the
materials in support of the application are not before it? It is trite that the burden
is on the applicant to supply sufficient material, to assist the court in its
deliberation before exercising that discretion empowered by the Rules of the
Court of Appeal 1994.”
10. We further submit that there is no further action to rectify the delay through
application to the court on extension of time to file the Notice of Appeal or to
provide explanation to the Court on the purported delay in filing the said notice.

5
11. Such delay is clear contravention of the mandatory requirement of Rule 12(b) of
the Rules of the Court of Appeal 1994.
12. We further referred this honourable court to the following decided cases: -
a. In Samsudin Bin Ismail & Ors v Yeoh Oon Theam (As The
Administrator Of The Estate Of Lim Mah Ee @ Baba Mahee,
Deceased) & Ors and another application [2003] 6 MLJ 596
[marked as “Tag-B” of Respondent’s BOA]
“under r 12(a) of the Rules of the Court of Appeal 1994 ('CA Rules')
one month from 7 April 1999, within which to appeal. This was not
done until the instant notice of motion dated 15 December 1999, was
filed, eight months later. The power to extend time or give leave is very
much a discretionary matter and to enable us to exercise our
discretion, it is necessary that the Respondents place before us some
relevant evidential material to explain the delay in filing the notice of
appeal… The affidavit in support of the notice of motion does not
contain any explanation for the delay and this is not surprising as the
Respondents had taken the stand that no separate notice of appeal is
necessary as the dismissal of their application to amend was made at
the trial and formed part of the judgment. As we cannot accept that
contention and there has been an omission to give any satisfactory
reason for the delay, we consider that this is not a proper case in which
we should exercise our discretion to extend time. Under the
circumstances we dismissed the notice of motion…”
b. In High Court case of Norzali bin Rosle v Timbalan Menteri Dalam
Negeri, Malaysia & Ors [2020] MLJU 398, it is provided that: -
[marked as “Tag-C” of the Respondent’s BOA]
“According to r 12(b) RCA, the Applicant should have filed his notice of
appeal to the Court of Appeal against the Decision (Enc. 6)
(Applicant’s Appeal) on or before 27.12.2019 [within one month from
the date of the Decision (Enc. 6)]. The Applicant’s Appeal was however
only filed on 22.1.2020. There was therefore a delay of 26 days (from
27.12.2019 until 22.1.2020) in the filing of the Applicant’s Appeal. More
importantly, the Applicant has not obtained leave of the Court of

6
 Appeal under r 12 RCA to file the Applicant’s Appeal beyond the
stipulated one-month period.”
c. In Court of Appeal case of Lembaga Pemegang Amanah Yayasan
Sabah & Anor v Datuk Syed Kechik Bin Syed Mohamed & Anor
and other appeals [2000] 3 MLJ 328, it is provided that: - [marked as
“Tag-D” of the Respondent’s BOA]
“(2) Since the Respondents' application was very much an interlocutory
matter, the Respondents had, under r 12(a) of the Rules of
the Court of Appeal 1994, one month from 7 April 1999, within which
to appeal. However, the notice of motion was only filed eight months
later. The affidavit in support of the notice of motion did not contain any
explanation for the delay. The court found that this was not a proper
case in which the court should exercise its discretion to extend time
(3)If indeed it was the contention of the Respondents that the interests
of justice would be met by allowing the proposed amendments so that
all issues are identified and tried, the court considered that the timing
of such a noble purpose should have been done much earlier…”

13. Therefore, we humbly submitted to this Honourable Court herein that there is
delay in filing the notice of appeal and in view of the need of abide to the rule,
there shall be no record of appeal being filled for this case. We further put
Appellant in a position where strong burden of proof is needed for this
Honourable Court to exercise its discretion.

Ground 2: Failure to file proper record of appeal lead to miscarriage of justice

and abuse of court process

14. Rule 18(10) of Rules of the Court of Appeal 1994 ordains that:-
“The Appellant shall, when filing his record of appeal in the Registry, submit to
the Registrar a chronology of events from the date the action or the application
was filed in the High Court to the date of filing of the record of appeal in the
Registry.”
15. We submitted that there is a failure of submitting a chronology of events to
registrar, which is a requirement laid down by the abovesaid section while filing
the record of appeal.
7
16. Rule 18(4) of Rules of the Court of Appeal 1994 ordains that:-
“The Appellant shall attach to such memorandum copies of the proceedings in
the High Court, including copies of all affidavits read and of all documents put in
evidence in the High Court so far as they are material for the purposes of the
appeal, and subject to rule 101 if such documents are not in the national
language, copies of certified translations thereof.”
17. We submitted that there is a failure of submitting a copy of all affidavits in High
Court, which is a requirement laid down by the abovesaid section while filing the
record of appeal.
18. Such requirements are further reiterated in Part III of the Court of Appeal
Practice Direction No.1 of 2017. More surprising, the sequence for the content of
filed record of appeal is not well followed which provided under the same part.
[See Overall Index of Record of Appeal] Item 7 of the said Part reads that:
“7. Preparation of the Record of Appeal
7.1 The Appellant shall prepare 4 copies of the Record of Appeal as follow:
(b) For appeals from the Subordinate Court, the Record of Appeal shall
be divided into Part A, Part B and Part C and Part D.
7.2 Appeals from the High Court/ Subordinate Courts

PART CONTENT
A i. Index
ii. Chronology of the case, starting from the
date the case was filed at the court of first
instance until the date the Record of Appeal
is filed
iii. Memorandum of Appeal
iv. Judgment, decree or order appealed from
v. Notice of Appeal
vi. Grounds of judgment or grounds of decision
of the High Court
vii. Pleadings and/or Originating Summons at
the High Court
B i. Index

8
 ii. Witness with pagination regarding the
referred to in the notes of evidence and/or
affidavit by the deponent filed and/or read at
the High Court
iii. Transcribed notes of evidence of the High
Court. If such transcribed notes of evidence
cannot be filed or is not available, the notes
of evidence in the form of a Compact Disc
(CD) can be filed subject to the court's
instruction
iv. Copies of the affidavit (without exhibit) filed
and/or read at the High Court appealed from
and such affidavits shall be arranged
according to the date filed
C i. Index
ii. The exhibit documents to be included shall
be
(a) relevant
(b) filed in one copy only
(c) clearly marked
(d) arranged in chronological order
iii. Written submissions of the parties. Do not
include Bundle of Authorities
D i. Index
ii. Grounds of judgment in the Subordinate
Court
iii. Judgment or order of the Subordinate Court
iv. Pleadings and/or Originating Summons at
the Subordinate Court
v. Notes of evidence at the Subordinate Court

9
19. From the practice directions and rules abovesaid, the filing of Record of Appeal
shall be divided into 4 Parts, which is Part A to D as this is an appeal originated
from the Subordinate Court, which is Sessions Court of Kuala Terengganu.
20. There is only an overall index comprises of 3 Parts, from Part A to C in a single
table, where there shall be separate index for each Part.
21. For the Chronology of the case starting from the date the case was filed at the
court of first instance until the date the Record of Appeal is filed is nowhere
found in the entire Record of Appeal and Overall Index of the same.
22. Judgment or order of the Subordinate Court, Writ at the Subordinate Court and
statement of claim at the Subordinate Court shall be filed under Part D of the
Record of Appeal instead of Part A.
23. The Notice of Appeal and Grounds of judgment or grounds of decision of the
High Court in the Record of Appeal is in reversed sequence.
24. The omission to attach the Copies of the affidavit (without exhibit) filed and/or
read at the High Court appealed from and such affidavits shall be arranged
according to the date filed under Part B of the Record of Appeal, which is also
amounted to the breach of Rule 18(4) of Rules of the Court of Appeal 1994.
25. The failure to file Exhibit from the High Court under Part C of Record of Appeal.
26. Therefore, we submitted that there are 11 errors detected for the filing of record
of appeal in accordance with Court of Appeal Practice Direction No.1 of 2017
and the Rule 18(4) and (10) of Rules of the Court of Appeal 1994. The mega
number of errors in filing one document, especially absence of chronology order,
indicates that the non-compliance is a blatant disregard of the said rules and
practice direction.
27. It is humbly submitted that the error in filing the chronology order, indicates that
the non-compliance is a blatant disregard of the said rules, practice direction and
its importance and such failure was committed with the intention of delaying the
due process of the Court, albeit the hearing of the Petition. The same happened
to the failure to file all affidavits from the High Court hearing.
28. The failure to file proper record of appeal on the part of the Appellant is a non-
compliance which is not curable by invoking Order 1A Rules of Court 2012 since
Rule 18(4) and (10) of the said Rules are mandatory or fundamental
requirements without any room for recourse.

10
29. The sole ground of failure to file chronology order is sufficient to render this
appeal to be dismissed following the decision of in Court of Appeal’s case of
Capital Insurance Bhd v Kasim Mohd Ali [2000] 1 MLJ 193, Lamin PCA,
Mokhtar Sidin JCA and Haidar JCA states that: - [marked as “Tag-E” of
Respondent’s BOA]
“We have dismissed this appeal earlier when we upheld the preliminary
objection raised by the Respondent. We now give our reasons for doing so. To
have the proper understanding of coming to that decision it is necessary to
follow the chronology of events leading to this appeal… In our view
the Rules and Practice Directions made by this court are to be obeyed and not
to be broken. We would like to stress here that parties to an appeal must adhere
and comply strictly with those Rules and Directions. Of late we found that there
were numerous instances where parties had not adhered or complied with
those Rules and Directions and we want to make it clear that they do so at their
own risk…There is no doubt in our mind that the supplementary appeal record
(rekod rayuan tambahan) is part of the appeal record. At the very minimum the
chronology of events will tell us when the sealed order was received by the
Appellant or its solicitors and when the supplementary appeal record was filed.”
30. The above decision was upheld in another case before the court of appeal,
namely Chuah Tim Lan v RHB Bank Bhd & Anor [2008] 6 MLJ 793, Suriyadi
JC states that: - [marked as “Tag-A” of Respondent’s BOA]
“[22] A case in point, Low Cheng Soon v TA Securities Sdn Bhd [2003] 1 MLJ 389,
Alauddin JCA had occasion to state:
It must be observed that the language used in r 18(4)(c)… The Appellant shall
attach to such memorandum copies of the proceedings in the High Court,
including
copies of all affidavits read and of all documents put in evidence in the High
Court so far as they are material for the purposes of the appeal…
There is no doubt in our minds and we agree with learned counsel for the
Respondent that this rule is mandatory. There are abundant authorities decided
in our courts to suggest that the word 'shall' when used in any legislation means
'obligatory'. However we do not propose to cite these authorities. Suffice it is for us to
say that the word 'shall' used in r 18(4)(c) of the Rule reflects a measure of
mandatoriness in it. As this is a mandatory rule it must therefore be strictly adhered to.

11
 [23]  Even though the above remark of Alauddin JCA was limited only to one
provision, yet it was sufficient for the court to conclude that by virtue of the
blatant disregard of r 18(4)(c) of the Rules, the appeal was not properly brought
before the court. In the current case before this panel we were able to identify
five major provisions that had not complied with the mandatory requirements of
the Rules in the course of filing the record of appeal. The six provisions were rr
18(1), 18(4)(b), (d) and (e), 18(6) and 18(10).
[26]  To summarise the appeal, the objection to the application was not just a
mere technical objection to an application of extension of time to file a
supplementary record of appeal based on delay, but founded on something
more serious. It was not an appeal where the facts showed that a good record
of appeal was filed earlier, though out of time, but an objection raised founded
on the reasoning that the record of appeal filed here had not complied with the
substantive Rules. At best it was an extremely defective record of appeal and
statutorily unacceptable. This panel, as stated above, had decided that it
tantamount to no record of appeal having been filed. With the dearth of such
record, no proper appeal record thus was before us, resulting in the leave
sought to file the Supplementary record of appeal as being an abuse of the
procedural process and an exercise in futility.”

31. Thus, we further submitted that the other 9 errors in abiding the practice direction
upon the content and the sequence of the content in record of appeal were
inadequate. Such 11 mistakes or non-compliance of practice direction and rules
demonstrated that the application of appeal is bad and an abuse of court
procedural laws.
32. It is to be noted that the learned counsel had failed to file the memorandum of
appearance as a court procedure at the entire session court stage. [Refer to
Page 99 Record of Appeal [Part C]]
33. Thus, we humbly submit that this record of appeal is not properly file or
impugned and such non-compliance amounted to nullity instead of irregularity.
As a consequence from that, there shall be no record of appeal had been filed.
34. We humbly submitted herein that the two points of preliminary objections shall
be decided by this Honourable Court before the trial of issues in this case.

12
A. ISSUE 1

Whether the litigation representative need to obtain leave from High Court
according to Order 76 of Rules of Court 2012 to represent the Respondent,
who is a patient following the definition under the Mental Health Act 2001.

1. The Appellant plead in the Memorandum of Appeal,

That the High Court Judge has erred in the eyes of the law: -
(a) (i) in applying Order 76 Rule 3(4), 3(5) and Rule 6 of the Rules of Court
2012; [Ground 1 of the Memorandum of Appeal]
(ii) failure to consider the provisions in Mental Health Act and Order 76 of
Rules of Court 2012 thoroughly; [Ground 5 of the Memorandum of
Appeal]
to the requirement of an order to appoint a litigation representative for a patient,
who is mentally disordered person under definition of Mental Health Act as
stipulated in Order 76, Rule 1 of Rules of Court 2012.
(b) failure to consider the procedure under Rules of Court 2012 on the need to
act as stipulated under Mental Health Act 2001. [Ground 4 of the
Memorandum of Appeal]

Order 76 Rule 3(4) and (5)

1. Order 76 Rule 3 of Rules of Court 2012 spells out that: -
(4) Where a person has been or is a litigation representative of a person under
disability in any proceedings, no other person shall be entitled to act as such

13
 litigation representative of the person under disability in those proceedings
unless the Court makes an order appointing him such litigation
representative in substitution for the person previously acting in that
capacity.
(5) Where, after any proceedings have been begun, a party to the proceedings
becomes a patient, an application shall be made to the Court for the
appointment of a person to be litigation representative of that party.”
2. From the above provisions, it is clear that the alleged mandatory court order on
appointment of litigation representative Order 76 Rule 3(4) and (5) is only
applicable if there is another person who wish to act as litigation representative
and Respondent only become a patient after the start of proceedings, which is a
salient fact that the opposite situation occurred in this case, where there is only
sole litigation representative and Respondent become a patient before the start
of proceedings.
3. In this respect, we humbly submit herein that Court of Rules 2012 is a
comprehensive rule, including the rules on litigation representative for disability.
4. We submit that the situation claimed by the Learned Counsel in Affidavit in
support will not happened, [Refer to Page 78 Paragraphs 16-17 Record of
Appeal [Part C]] as the said section is a saving clause to the circumstances that
plead by the Appellant. This is upon the provision that expressly states there is
mandatory court order to those who wish to apply as additional litigation
representative when there is already a person acting as litigation representative.
Therefore, such provision instead of being ground of pleading, it shall act as the
role of answering to the good faith of Appellant as the solution to the extra or
more innocent person or even person in mala fide that claim as “litigation
representative” to the Respondent. It is obvious that if that’s really such a case,
the Appellant will be well alert of there is already claim towards this personal
injury and will then plead this provision to the trial court to strike out the said
application upon overlapping claim.
5. In addition, there is no situation of the appearance of other relative who claim or
interested to act as litigation representative on behalf of the Respondent as
alleged by the Learned Counsel. [Refer to Page 78 Paragraphs 16-17 Record of
Appeal [Part C]] Not to mention that up to date, there is no other claim or action
of taking or transfer Respondent’s money or property as in the case of
14
 Govindasamy a/l Munusamy lwn Krishnan a/l R Munusamy dan lain-lain
[2020] MLJU 2138 [marked as “Tag-F” of Respondent’s BOA] where there are
proven and tracked unauthorised action of transferring and taking the money
from the savings account of the plaintiff, who is a patient that constitutes fraud.
6. That’s the opposite situation in this case, where the litigation representative is
totally free of interest from the claim as pleaded in Form 188 and Form 189,
(Refer to Exhibit A and B) and there is no fraud action found in addition with he is
the one who take care of the Respondent since he suffered injuries.
7. Furthermore, the Learned High Court judge has made in finding that paragraph
(4) is not applicable for Respondent as there is no other appointed litigation
representative. Meanwhile for paragraph (5), it is also not applicable to the
Respondent as it shall only apply as mandatory court order if the Respondent
only become a patient after the start of proceedings, which is a salient fact that
the opposite situation occurred in this case, where the Respondent become a
patient before the start of proceedings.

Order 76 Rule 6
8. Order 76 Rule 6 reads that: -
“Appointment of litigation representative where person under disability
does not appear
6. (1) Where—
(a) in an action against a person under disability begun by originating
summons, no appearance is entered for that person; or
(b) the defendant to an action serves a defence and counterclaim on a
person under disability who is not already a party to the action and no
appearance is entered for that person, an application for the
appointment by the Court of litigation representative of that person
shall be made by the plaintiff or defendant, as the case may be, after
the time limited, as respects that person, for appearing and before
proceeding further with the action or counterclaim.
(2) Where a party to an action has served on a person under disability who is
not already a party to the action a third party notice within the meaning of
Order 16 and no appearance is entered for that person to that notice, an
application for the appointment by the Court of a litigation representative
15
 of that person shall be made by that party after the time limited (in respect
of that person) for appearing and before proceeding further with the third
party proceedings.
(3) Where in any proceedings against a person under disability that person
does not appear by a litigation representative at the hearing of the
originating summons, the Court hearing it may appoint a litigation
representative of that person in the proceedings or direct that an
application be made by the applicant, for the appointment of such a
litigation representative.
(4) At any stage in the proceedings under any judgment or order, notice of
which has been served on a person under disability, the Court may, if no
appearance is entered for that person in the originating summons, appoint
a litigation representative of that person in the proceedings or direct that
an application be made for the appointment of such litigation
representative.
(5) An application under paragraph (1) or (2) shall be supported by evidence
proving—
(a) that the person to whom the application relates is a person under
disability;
(b) that the person proposed as litigation representative is willing and a
proper person to act as such and has no interest in the proceedings
adverse to that of the person under disability;
(c) that the originating summons, defence and counterclaim or third party
notice, as the case may be, was duly served on the person under
disability; and
(d) subject to paragraph (6), that notice of the application was, after the
expiration of the time limited for appearing and at least seven days
before the day fixed for hearing, so served on him.
(6) If the Court so directs, notice of an application under paragraph (1) or (2)
need not be served on a person under disability.
(7) An application for the appointment of a litigation representative made in
compliance with a direction of the Court given under paragraph (3) or (4)
shall be supported by evidence proving the matters referred to in
subparagraph (5)(b).”
16
10. Rule 6(1)(a) does not apply as the action begun by the litigation representative
on behalf of the Respondent/ plaintiff. Rule 6(1)(b) and (2) also does not apply
as the Respondent, who is a person under disability is a party to this action.
Therefore, Rule 6(5) and (6) are not applicable in Respondent’s case.
9. For the remaining subsections and proviso of Rule 6, as the litigation
representative had entered the appearance for the Respondent and appear at
the hearing every time without fail in fortiori that the Respondent is still a party to
the action, the paragraphs shall not be applicable in Respondent’s case.
10. Even if the Rule 6(3) and (4) are applicable, the word of “may” connotes that it
does not impose mandatory obligation for the court to appoint litigation
representative.
11. It is humbly submitted that referring to the abovementioned rule, the rationale of
this rule is to ensure exercise of justice, where the person under disability shall
not be jeopardised of his justice interest and the strike out of the case simply
because the patient had become mental disordered person. It is clear that the
interpretation of the whole rule meant to be apply in the situation wherein there is
no appearance of the person under disability or appearance of litigation
representative on behalf of him, which is self-explanatory in the heading of the
said rule. Clearly see that such rule does not apply to Respondent, who is only
mentally disturbed instead of mentally disordered.

Order 76 Rule 1 and Definition of mentally disordered person in Mental Health

Act
12. The definition of Order 76 Rule 1 states that “person under disability” means a
person who is a minor or a patient; while “patient” means a mentally disturbed
person within the meaning of the Act.
13. For current case, Plaintiff is an adult but suffered from permanent brain injury
upon the accident caused by the Appellant. Therefore, plaintiff is a person under
disability as he is mentally disturbed due to the permanent brain injury suffered.
14. Referring to the Section 51 of Mental Health Act 2001, it ordains that: -
“mental disorder” means any mental illness, arrested or incomplete
development of the mind, psychiatric disorder or any other disorder or disability
of the mind however acquired; and "mentally disordered" shall be construed
accordingly;”
17
15. Referring to the above section, it is clear that the said definition is not applicable
in Respondent’s case, as the Respondent suffered permanent brain injury, which
is not the situation laid down by the section. Also, we would then highlight that
there is no evidence proof that the Respondent falls within the said category or
evidence, specifically category of mental disorder person or a patient as alleged
by the Appellant. Therefore, there is no need for the Respondent’s brother to
obtain court order to act as litigation representative on behalf of the Respondent
as the said section not applicable to the Respondent.
16. We would like to emphasize that the Respondent is a patient due to the severe
and permanent injury on the brain, therefore the litigation representative in the
present case on behalf of the Respondent, are forced to make such
representations and take relevant actions to safeguard the interest of the
Respondent to make claim of damages.
17. In supporting, referring to the High Court case in Lim Thian Hock @ Lim Thiam
Hock v Lim Choon Hiok [2014] 9 MLJ 1, Sm Komathy JC states that: - [marked
as “Tag-G” of Respondent’s BOA]
“The law provides that the plaintiff would lack the mental capacity to instruct
solicitors and thus be precluded from bringing an action if he was a patient for
the purposes of O 76 r 1 of the ROC.”

Order 76 Rule 2 of Rules of Court 2012

18. In addition, we relied on the Order 76 Rule 2 of Rules of Court 2012, which reads
that: -
“(1)A person under disability may not bring, make a claim in, defend, make a
counterclaim in, or intervene in any proceedings, or appear in any
proceedings under a judgment or order notice of which has been served on
him, except by his litigation representative.
(2)Subject to the provisions of these Rules, anything which in the ordinary
conduct of any proceedings is required or authorized by a provision of these
Rules to be done by a party to the proceedings shall or may, if the party is a
person under disability, be done by his litigation representative.
(3)A litigation representative of a person under disability shall act by a solicitor.”
19. The above rule clearly states that there is mandatory requirement for the need of
litigation representative to act on behalf of the person under disability for all
18
 claims, defends or proceedings. Therefore, in order to fulfil the said
requirements, the litigation representative on behalf of the Respondent had then
take the responsibility to help in safeguard justice right of the Respondent.
20. The application of the said rule is reaffirmed in Hasnah bt Baba v Juliah bt
Mohd Hassan [2020] MLJU 499, where the High Court judge, Wong Kian
Kheong J states that: - [marked as “Tag-H” of Respondent’s BOA]
“As the Plaintiff is a “person under disability”, by reason of O 76 r 2(1) RC, the
Plaintiff cannot institute and conduct This Action.”
21. In High Court case of Musfirah Nabila bt Musa v Radziah bt Mohd Nor &
Anor [2019] MLJU 1884, states that: - [marked as “Tag-I” of Respondent’s BOA]
“[4](2) I drew the attention of both learned counsel that in view of the 1st
Defendant’s Disability, in accordance with O 76 rr 3(2) and 6(3) of the Rules of
Court 2012 (RC), a litigation representative should be appointed to act for the
1st Defendant in this case. I reproduce below O 76 rr 3(2), 6(3), (5)(b) and (7)
RC…
[5](2) upon an application by the Plaintiff, the court granted leave to the Plaintiff
to amend the OS so as to -
(a)proceed with this suit against the 1st Defendant (who is under a disability);
and
(b)add the 2nd Defendant as the 1st Defendant’s litigation representative”

22. From the above case, it is clear that the court had alert the counsels on the need
of litigation representative acting for the patient to appear on the originating
summons following Order 76 Rule 3(2) of Rules of Court 2012. Since there is
no appearance of litigation representative thus under mandatory requirement to
apply leave from the court to appoint it pursuant to Order 76 Rule 6 of Rules of
Court 2012. It also does not fall within the exception from court order as
ordained by rule of Order 76 Rule 3(2) of Rules of Court 2012.
23. It is submitted that, following the clear exception in Order 76 Rule 3(2) of Rules
of Court 2012, which stated that “Except as provided by paragraph (4) or (5) or
by rule 6, an order appointing a litigation representative of a person under
disability is not necessary.” It is an undisputed fact that in the current case, there
is already a litigation representative representing the Respondent/ plaintiff.
Therefore, the said order shall apply and the Respondent’s case which falls
19
 outside of paragraph (4), (5) and Rule 6 shall not have mandatory court order in
appointment of litigation representative.
24. Therefore, there is no such requirement for a court order before the
Respondent’s brother be allowed to act on the plaintiff's behalf as his next friend.
We further submit that, we who act as plaintiff’s solicitor as a matter of caution
had undertaken to file the required documents stated in Order 76 Rule 3(7) of
the Rules of Court 2012, namely the filing of a written consent of the plaintiff’s
brother to be the plaintiff’s next friend set out in Form 189 [See Exhibit A] and the
plaintiff’s solicitor’s certificate certifying to the matters mentioned in Order 73
Rule 3(7)(c) in Form 190 [See Exhibit B] of the Rules of Court 2012.
25. We humbly submit that the basis of the filed applications of writ summons and
statement of claim had make the Respondent/ plaintiff as a patient and person
under disability.
26. This is upon the fact that the Respondent is a patient suffering from permanent
brain injury rendered him as person under disability.

Order 76 Rule 1A(1)

27. Order 76 Rule 1A(1) of Rules of Court 2012 reads that: -
“The jurisdiction of the High Court to grant leave pursuant to the Mental Health
Act 2001 to bring proceedings against a person may be exercised only by a High
Court Judge.”
28. Referring to the abovesaid provision, it is herein submitted that the said order is
not mandatory in nature upon the word of ‘may’.
29. We further submit that the Learned High Court judge has not erred in deciding
on whether there is a need to apply such order.
30. It is submitted that relying on Order 1A of the Rules of Court 2012, where it is
argued that this Honourable Court shall prioritise the interest of justice rather
than the technical non-compliance of the rules, which act as the main ground of
the Appellant. It reads that: -
“In administering these Rules, the Court or a Judge shall have regard to the
overriding interest of justice and not only to the technical non-compliance with
these Rules.”

20
31. Relying on the High Court case of Liew Ju Min v Choo Wee Poh & Anor
[2016] MLJU 697, Lim Chong Fong JC states that: - [marked as “Tag-J” of
Respondent’s BOA]
“[21]I firstly dealt with the Defendants’ contention that no leave of court had been
obtained pursuant to Order 76 Rules of Court 2012 prior to the filing of the OS.
The Plaintiff relied on the case of JJ Raj v. Dato’ Edward Lawrence & Ors [2015]
7 CLJ 238. In that case, it concerned the plaintiff commencing legal proceedings
for negligence, breach of fiduciary duty and breach of trust against one of the
defendants who has been declared by another high court to be a mentally
disordered person under the MHA. Leave to sue that defendant has not been
prior obtained from the court. As the result, the plaintiff’s action against that
defendant was dismissed for want of leave.
[22]It is plain that the OS here is plainly distinguishable from the aforementioned
case. This case before me pertains to the appointment of committees for the
care and management of persons allegedly under mental disorder. They were
not sued for wrongful actions committed or omissions by them.
[23]It is not clear in Order 76 rule 1A of the Rules of Court 2012 if leave is
intended for this situation. In the Malaysian Civil Procedure 2015 Volume 1, the
commentators said as follows at paragraphs 76/1A/1&2:
“There is no corresponding provision under RSC 1965 (Eng). This is a new
provision previously not found under RHC 1980 or the SCR 1980. The rule taken
together with the headnote, seems to suggest that leave of court must be sought
before proceedings are commenced against a person who are suffering from
mental disability. It directs leave to commence proceedings to be obtained from
a High Court judge pursuant to the Mental Health Act 2001. However it is
noteworthy that there is no provision under the Act, which deals with leave
application to commence proceeding against a person suffering from mental
disability.”
[24]It is my view that leave is required to be obtained from the high court if and
only if a suit or proceeding is brought against a mentally disordered or disabled
person as so found or declared by the court as illustrated in the case of JJ Raj v.
Dato’ Edward Lawrence & Ors (supra)…In the premises, it cannot be said the
OS is obviously unsustainable because of the absence of leave…
[31]This is an instance where I implored upon the parties particularly the
Defendants that the court should not be besotted by the rules of technicality and
allow justice to be forsaken by alleged procedural irregularities in civil litigation. I
was more concerned here with the interest and welfare of Choo Wee Thim and
21
 Liew Kee Hooi whose physical and mental health are fast deteriorating by the
days. The paramount objective to me is to dispose both the Civil Suit and OS as
expeditiously as possible because I do not wish to ultimately have embarked
upon an academic exercise where both of them predecease the disposal of the
Civil Suit and OS.
Conclusion
[32]It is for the foregoing reasons that I made the decision as so ordered. In
abundans cautela, I ruled that leave is deem given pursuant to Order 76 rule 1A
of the Rules of Court 2012 by the addition of the Third and Fourth Defendants
though I thought that was strictly unnecessary in light of the nature and prayers
sought in the OS. I have in this regard also appointed Dato’ Haw Kim Then JP
as the litigation representative of the Third and Fourth Defendants pursuant
Order 76 rule 6 of the Rules of Court 2012 upon the repeated requests of the
First and Second Defendants notwithstanding that it isn’t clear from Order 76 of
the Rules of Court 2012 that it was necessary in the circumstances. The Plaintiff
has also no objection thereto and I didn’t think this would harm or prejudice the
parties in any way.”
32. In Hasnah bt Baba v Juliah bt Mohd Hassan [2020] MLJU 499, states that: -
[marked as “Tag-H” of Respondent’s BOA]
“In view of O 1A and O 2 r 1(2) RC, all the rules in RC, including O 76 r 3(3) RC,
should be administered by the court with regard to the “overriding interest of
justice and not only to the technical non-compliance” with RC. Cases decided
before the enforcement of O 1A and O 2 r 1(2) RC should be read with caution.

Based on O 1A and O 2 r 1(2) RC, I exercise my discretion under O 76 r 3(3) RC

to appoint Encik Zahari as the Plaintiff’s litigation representative in This Action
because there is no prejudice to the Defendant, especially when the Defendant
has not disputed SP1’s expert view regarding the Plaintiff’s Alzheimer’s disease
and her consequent incapability of managing her affairs and estate;
(2)the purpose and effect of the Court of Appeal’s Order is clear - this court
should try This Action on its merits without regard to technicalities [such as O 76
r 2(1) RC]. The Defendant did not apply to the Federal Court for leave to appeal
against the Court of Appeal’s Order. It is thus clear that the Court of Appeal’s
Order is final and res judicata as between the Plaintiff and Defendant. If I have
22
 refused to appoint Encik Zahari as the Plaintiff’s litigation representative in This
Action and This Action is dismissed solely on a technical non-compliance with O
76 r 2(1) RC, such a technical decision will render nugatory the Court of
Appeal’s Order.”
33. Relying on the Hasnah’s case, if this Honourable Court finds that there is a need
of application of leave from High Court, Order 1A shall be upheld, and the
proceedings shall continue in consideration with the merits on Respondent and
shall then appoint the Respondent’s brother as litigation representative to ensure
this application is not dismissed plainly as it will then rendered nugatory the
Court of Appeal’s order. We further submit that Court of Appeal’s order is final as
this case originated from Sessions Court.
34. Therefore, we submitted that the most appropriate rule to apply in this case shall
be Order 76 Rule (2) and (3)(3) and (7) of Rules of Court 2012, and others are
not relevant. It is humbly submitted herein that Respondent’s brother and we,
who act as solicitor are well aware of the substantive and procedural law
involved, and after thorough consideration of applications, we then take all
cautious and appropriate action to file the writ, and fill in Form 189 and Form
190 beforehand as the fulfilment of elements for Respondent as a person under
disability. We respect all court procedures and alert of them. The Respondent is
a patient that falls within the definition of person under disability in Order 76 Rule
1, and in view of the fact that he suffered irreversible and permanent brain injury,
the nature of it falls out of the definition of mental disorder person under the
Section 51 of the Mental Health Act. As a general rule, the burden of proof rests
on the Appellant, as the party filing this appeal.
35. In light of this, it is humbly submitted that there is no requirement for the litigation
representative to acquired leave from the High Court and the Learned High
Court judge is not erred in His findings on this issue in replied to Ground 1, 3, 4
and 5 of the Memorandum of Appeal. It is reproduced herein that the Learned
High Court judge has expressly stated in Ground of Judgment that:-
“The Court in interpreting Order 76 has looked at the whole said Order. Order 76
Rule 3(3) clearly provides that an order appointing a litigation representative is
not required. An order to appoint a litigation representative is only required in the
circumstances falling under paragraphs (4), (5) and (6).”

23
24
(b) ISSUE 2
1. Whether the Respondent is required to apply before the High Court to determine
the Respondent is a mentally disordered person and appoint a committee to act
on his behalf according to Sections 52(1) and 58(1) of the Mental Health Act
2001.
2. That the High Court Judge has erred in law for the failure to consider the
Mental Health Act 2001 especially Section 52(1) and 58(1) for the
requirement to apply before the High Court to determine whether the
Respondent is a mentally disordered person and appoint a committee to
act on his behalf. [Ground 2 of the Memorandum of Appeal]
3. The Respondent is not required to apply before the High Court to determine the
Respondent is a mentally disordered person according to Section 52(1) of the
Mental Health Act 2001.
a. Section 2 of the Mental Health Act 2001 states that "mental disorder" means
any mental illness, arrested or incomplete development of the mind,
psychiatric disorder or any other disorder or disability of the mind however
acquired; and "mentally disordered" shall be construed accordingly. Section
51 defines mentally disordered person as any person found by due course of
law to be mentally disordered and incapable of managing himself and his
affairs.
b. Section 52 of Mental Health Act 2001 lays down that the Court may, on an
application made before it, make an order directing an inquiry to determine
whether a person subject to the jurisdiction of the Court and alleged to be
mentally disordered is incapable of managing himself and his affairs due to
such mental disorder. This shows that it is not compulsory for the court to
make an order to determine that a person is a mentally disordered person.
c. In the case of MTD Prime Sdn Bhd v See Hwee Keong & Ors [2016] 4
MLJ 695 [marked as “Tag-K” of Respondent’s BOA] and another appeal, it
was contended on behalf of the defendants that the plaintiff had no locus
standi to bring this action as he lacked the mental capacity to do so. The
court ruled that, section 52 of the Mental Health Act 2001 requires that an
inquiry be held before any person is declared to be a mentally disordered
person. However, the court also ruled that the plaintiff cannot be said to be a
mentally disordered person as he has not been so found by due course of
25
 law to be mentally disordered and incapable of managing himself and his
affairs. This by itself is sufficient to defeat the argument raised by the
defendants. Furthermore, the evidence adduced at the trial did not even
remotely suggest that the plaintiff was mentally disordered. No doubt he had
suffered serious injuries, and this has, amongst others, impaired his ability to
recall events. This does not necessarily equate to him being mentally
disordered. The High Court was right to reject this issue of locus standi.
d. The Appellant who is Azid Bin Musa alleged that the High Court was wrong
for not considering that according to the section 52(1) of the Mental Health
Act 2001, the Respondent is required to apply before the High Court to make
an inquiry determine the Respondent is a mentally disordered person.
However, the Respondent is not mentally disordered as stated in the
definition under the Mental Health Act 2001. There is no evidence that the
Respondent falls under the category of mentally disordered person
according to the Mental Health Act 2001 through the findings of the Sessions
Court. Although he suffered some serious injuries to the head, this does not
equate to him being mentally disordered as he was already disabled even
before the proceedings by referring to the case of MTD Prime Sdn Bhd v
See Hwee Keong & Ors and another appeal [2016]. In addition to that,
when referring to section 52 of the Mental Health Act, it is not compulsory for
the court to have an inquiry to determine that the Respondent is mentally
disordered as it is at the discretion of the court. Hence, the High Court was
right to dismiss the appeal from the Appellant as there was no need to
consider section 52 of the Mental Health Act since the evidence given did
not even remotely suggest that the Respondent was mentally disordered.
4. The Respondent is not required to apply before the High Court to appoint a
committee to act on his behalf according to Section 58(1) of the Mental Health
Act 2001.
a. Section 2 of the Mental Health Act 2001 states that "mental disorder" means
any mental illness, arrested or incomplete development of the mind,
psychiatric disorder or any other disorder or disability of the mind however
acquired; and "mentally disordered" shall be construed accordingly. This
means that the term "mental disorder" must be within the definition of section

26
 2 of the Mental Health Act 2001 including when referring to section 58 of the
Mental Health Act 2001.
b. Section 58 of the Mental Health Act 2001 states that the Court may appoint a
committee or committees of the person and of the estate of the person if the
Court finds that the person who is alleged to be mentally disordered is
incapable of managing himself and his affairs due to his mental disorder.
This means that it is not compulsory for the court to appoint a committee of
the person even if the court finds the person alleged to be mentally
disordered to be incapable of managing himself and his affairs due to his
mental disorder.
c. In the case of Hasnah bt Baba v Juliah bt Mohd Hassan [2020] MLJU
499, [marked as “Tag-H” of Respondent’s BOA] the court stated that
regarding the application of section 58(1) of the Mental Health Act 2001
where in order to determine whether the court should appoint committee for
Plaintiff, there must be expert medical evidence that a person has a “mental
disorder” within the meaning of section 2(1) of the Act. Besides that, as a
result of the person’s mental disorder, he or she is incapable of managing
their own person and affairs and upon proof of their incapability, the court
may appoint one or two committees to manage their affairs.
d. In Goh Yong Peow v Goh Sok Choo & Ors [2015] 10 MLJ 160, [marked
as “Tag-L” of Respondent’s BOA] the court held that there had to be full
disclosure of all the documents relating to the assets and accounts in
Malaysia of the estates of the plaintiff and defendants' parents to enable the
plaintiff to complete his cross-examination of the first defendant on those
matters and also to enable the court to decide whether a committee pursuant
to section 58 of the Mental Health Act 2001 should be appointed and to
decide who should be appointed to the committee to manage the estates.
The judge also stated that the court must consider whether this section can
be utilised in the instant case because the express provision in section 58 (1)
concerning the finding by the court in accordance with the provisions of the
Act that a person is incapable of managing himself and his affairs because of
his alleged mental disorder. This means that it is not compulsory to apply
this provision or appoint a committee of the person depending on the facts
and findings of the courts in a case.
27
e. The Appellant alleged that the High Court was wrong for not considering
section 58(1) of the Mental Health Act 2001, for an appointment of a
committee for the Respondent to act on his behalf according to Section 58(1)
of the Mental Health Act 2001. However, the Respondent who is Mohd
Suhaimi bin Shafie does not fall under the definition of mental disorder
according to section 2 of the Mental Health Act 2001 in order to consider the
application of section 58(1) of the Mental Health Act 2001. From the findings
of the sessions court, there is no evidence that shows that the Respondent is
under the category of mental disorder. When referring to the case of Hasnah
bt Baba v Juliah bt Mohd Hassan [2020] MLJU 499, there must be expert
medical evidence that a person has a “mental disorder” within the meaning
of section 2(1) of the Act in order to apply section 58(1) of the Mental Health
Act 2001. Besides that, it is not compulsory to apply section 58(1) of the
Mental Health Act 2001 since it only states that the court may appoint a
committee for the Respondent to manage his affairs depending on the facts
of each case. From the case of Goh Yong Peow v Goh Sok Choo & Ors
[2015] 10 MLJ 160, the court will decide based on all the evidence and
findings of the court to determine whether there is a necessity to appoint a
committee for the Respondent to manage his affairs based on section 58(1)
which means it is not compulsory to appoint a committee for the
Respondent. There is already a legal representative for him to manage his
affairs who is his brother who is Mohd Yunan bin Shafie I since he was
already a disabled person before the accident.
5. Hence, the Respondent is not required to apply before the High Court to
determine the Respondent is a mentally disordered person and appoint a
committee to act on his behalf according to Sections 52(1) and 58(1) of the
Mental Health Act 2001.

28
 PRAYERS FOR RELIEF

The Respondent respectfully requests the court to: -

1. dismiss this appeal with costs.

Dated the 12th day of MAY, 2022.

…..……..………………………….
Solicitors for the Appellant/ Plaintiff
Messrs. Hizwar & Co.

This RESPONDENT’S WRITTEN SUBMISSION is filed by Messrs. Hizwar & Co.,

whose address of service is at Lot 2954, Tingkat 1, Jalan Putra, Bandar Baru Pasir
Pekan, 16250, Wakaf Bharu, Kelantan Darul Naim, solicitors for the said
Respondent/ Plaintiff.

29
BUNDLE OF AUTHORITIES
RULES/STATUTES/REGULATIONS

1. Rules of Court 2012……………………………...……………

2. Mental Health Act 2001 ………………………………………

CASES

1. MTD Prime Sdn Bhd v See Hwee Keong & Ors and another appeal [2016] 4
MLJ 695
2. Hasnah bt Baba v Juliah bt Mohd Hassan [2020] MLJU 499
3. Goh Yong Peow v Goh Sok Choo & Ors [2015] 10 MLJ 160
4. Chuah Tim Lan v RHB Bank Bhd & Anor [2008] 6 MLJ 793
5. Tan Siew Peng v OCBC (M) Bhd [1998] 2 MLJ 420
6. Samsudin Bin Ismail & Ors v Yeoh Oon Theam (As The Administrator Of The
Estate Of Lim Mah Ee @ Baba Mahee, Deceased) & Ors and another
application [2003] 6 MLJ 596
7. Norzali bin Rosle v Timbalan Menteri Dalam Negeri, Malaysia & Ors [2020]
MLJU 398
8. Lembaga Pemegang Amanah Yayasan Sabah & Anor v Datuk Syed Kechik
Bin Syed Mohamed & Anor and other appeals [2000] 3 MLJ 328
9. Capital Insurance Bhd v Kasim Mohd Ali [2000] 1 MLJ 193
10. Govindasamy a/l Munusamy lwn Krishnan a/l R Munusamy dan lain-lain
[2020] MLJU 2138
11. Lim Thian Hock @ Lim Thiam Hock v Lim Choon Hiok [2014] 9 MLJ 1
12. Musfirah Nabila bt Musa v Radziah bt Mohd Nor & Anor [2019] MLJU 1884
13. Liew Ju Min v Choo Wee Poh & Anor [2016] MLJU 697

30
31