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IN THE COURT OF APPEAL OF MALAYSIA

(CIVIL DIVISION)

BETWEEN

LEONG AH KEONG

APPELLANT
AND

1. FENG TAU NIGHTCLUB


2. SOO MEI LEE
3. CHEONG WAH CHAI

RESPONDENT

SUBMISSION OF COUNSELS FOR THE APPELLANT

1.

First Submission
It was reasonable to believe Cheong Wah Chai was acting in the
course of his employment during his alleged assault. As the head
of security of Feng Tau Nightclub, Cheong Wah Chai had the
responsibility to control the door and the behavior of patrons
inside the Feng Tau Nightclub; therefore it was reasonable to
believe Cheong Wah Chais act towards Leong Ah Keong was
trying to control the door to his employers property. Also, if the
worker commits a tort in order to protect the employers
property, the general rule is that the employer will be vicariously

liable. The fact that Cheong Wah Chai heard the commotion and
rushed to the street with a clenched fist screaming and swearing
at Leong Ah Keong shows that even though it was somewhat
excessive, but it was not sufficient to make it fall outside the
scope of employment.

Naylor (t/a Mainstreet) v Payling

Mattis v Pollock (t/a Flamingos Nightclub)

[2004] EWCA Civ 560


[2003] EWCA Civ

887

Stephens v Myers

Hawley v Luminar Leisure Plc

Poland v Parr & Sons [1927] 1 KB 236, CA

172 E.R. 735; (1830) 4 Car. & P. 349


[2006] C.P. Rep. 23

2. Second Submission
Feng Tau Nightclub was vicariously liable for the acts of Soo Mei
Lee as she was their employee. This can be determined by laying down
the integration test, it can be seen that Soo Mei Lee works as part of
the organisation and her work forms an integral part of the Feng Tau
Nightclub as she has to supervise the doors for Feng Tau Nightclub and
control patrons in the Nightclub. Soo Mei Lee was not in business on
her own account and she is to be paid by Feng Tau Nightclub at the end
of the conclusion contract. Also, if the worker commits a tort in order to
protect the employers property, the general rule is that the employer
will be vicariously liable

Stevenson, Jordan and Harrison Ltd v MacDonald and


Evans [1952] 1 TLR 101 at 111

Mat Jusoh bin Daud v Syarikat Jaya Seberang Takir Sdn Bhd
[1982] 2 MLJ 71

3. Third Submission
There was assault committed by Cheong Wah Chai as his actions of
rushing towards Leong Ah Keong with a clenched fist whilst screaming
and swearing will definitely bring about a reasonable apprehension
that a force will be inflicted upon him and his loud words in Hokkien
added a positive to the apprehension. Therefore, the actions of Cheong
Wah Chai is considered assault. As for Soo Mei Lee, when she told
Leong Ah Keong to leave she may have blocked him with her arms and
the slight force against his body may have caused him to lose balance
and fall.

Stephen v Myers (18404 C & P 349

Tuberville v Savage [1669] 1 Mod Rep 3

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