Bulletin_02

CLJ Bulletin, Issue 2009, Vol 02

16 January 2009

CLJ Law MALAYSIA

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New This Week -	1. CLJ January (Part 2) 2009
	2. CLJ Supp January (Part 1) 2009

1. CLJ January (Part 2) 2009

PRACTICE DIRECTIONS

Arahan Amalan Mahkamah Rayuan Bil 3 Tahun 2008 [2009] 1 CLJ xvii

Arahan Amalan Mahkamah Rayuan Bil 2 Tahun 2008 [2009] 1 CLJ xviii

COURT

COURT OF APPEAL

Kathavarayan Munisamy v. PP
(Dangerous Drugs Act 1952 - Trafficking in 937.8 grams cannabis) [2009] 1 CLJ 125

MBf Cards Services Sdn Bhd v. Chew Ah Too
(Notice of appeal - Respondent not served with a properly endorsed notice) [2009] 1 CLJ 140

Megat Halim Megat Omar v. PP
(Dangerous Drugs Act 1952 - Trafficking in 797.59 grams cannabis) [2009] 1 CLJ 154

Penang Port Commission v. Kanawagi Seperumaniam
(Action - Multiplicity of actions) [2009] 1 CLJ 169

Robert Cheah Foong Chiew v. Lembaga Jurutera Malaysia
(Engineers - Improper conduct - Application by engineer to declare charges by Board of Engineers bad in law before start of disciplinary hearing) [2009] 1 CLJ 192

Wan Muhamad Ibrisam Wan Ibrahim & Ors v. Opal Pyramid Sdn Bhd
(Costs - Security for costs) [2009] 1 CLJ 201

HIGH COURT

PP v. Ling Leong Kong
(Criminal revision - Order of discharge not amounting to an acquittal - Power of sessions court judge to make order) [2009] 1 CLJ 211 [HC]

SUBJECT INDEX

CIVIL PROCEDURE

Action - Multiplicity of actions - Whether plaintiff's triable issue in writ action pending hearing and plaintiff's originating summons filed sought order in identical terms - Whether abuse of court's process - Rules of the High Court 1980, O. 18 r. 19
Penang Port Commission v. Kanawagi Seperumaniam
(Low Hop Bing JCA, Abdul Malik Ishak & Sulaiman Daud JJCA) [2009] 1 CLJ 169 [CA]

Appeal - Notice of appeal - Respondent not served with a properly endorsed notice - Whether service proper - Whether O. 49 Subordinate Courts Rules 1980 complied with
MBf Cards Services Sdn Bhd v. Chew Ah Too
(Suriyadi Halim Omar, Abu Samah Nordin & Sulong Matjeraie JJCA) [2009] 1 CLJ 140 [CA]

Costs - Security for costs - Plaintiff's ability to pay costs if defendant successful - Whether credible testimony shown - Whether likelihood of winning a consideration to be taken into account - Companies Act 1965, s. 351
Wan Muhamad Ibrisam Wan Ibrahim & Ors v. Opal Pyramid Sdn Bhd
(Suriyadi Halim Omar, Raus Sharif & Zainun Ali JJCA) [2009] 1 CLJ 201 [CA]

CRIMINAL LAW

Dangerous Drugs Act 1952 - Section 39B(1)(a) - Trafficking in 797.59 grams cannabis - Appeal against conviction and sentence - Whether appellant's conduct in reply to queries made, before administering of caution, admissible evidence - Whether appellant's cautioned statement admissible evidence - Whether appellant had exclusive control and custody of drugs
Megat Halim Megat Omar v. PP
(Low Hop Bing, Abdull Hamid Embong & Ahmad Maarop JJCA) [2009] 1 CLJ 154 [CA]

Dangerous Drugs Act 1952 - Section 39B(1)(a) - Trafficking in 937.8 grams cannabis - Appeal against conviction and death sentence - Admissibility of statement - Whether a cautioned statement - Defence - Whether reasonable doubt raised
Kathavarayan Munisamy v. PP
(Mohd Ghazali Yusoff, Low Hop Bing & Vincent Ng JJCA) [2009] 1 CLJ 125 [CA]

CRIMINAL PROCEDURE

Criminal revision - Order of discharge not amounting to an acquittal - Power of sessions court judge to make order - Accused discharged when prosecution has not completed its case - Whether order valid - Criminal Procedure Code, s. 173(f), (g)
PP v. Ling Leong Kong
(Mohamed Apandi Ali J) [2009] 1 CLJ 211 [HC]

PROFESSIONS

Engineers - Improper conduct - Application by engineer to declare charges by Board of Engineers bad in law before start of disciplinary hearing - Whether application premature - Whether application involved public law rights - Whether application should proceed by way of judicial review rather than by declarations - Whether abuse of court's process
Robert Cheah Foong Chiew v. Lembaga Jurutera Malaysia
(James Foong, Suriyadi Halim Omar & Ahmad Maarop JJCA) [2009] 1 CLJ 192 [CA]

2. CLJ Supp January (Part 1) 2009

COURT

HIGH COURT

Alfa Laval (M) Sdn Bhd v. Ng Ah Hai & Ors
(Copyright - Infringement - Computer program - Whether copyright infringement established) [2009] 7 CLJ 1

Danaharta Managers Sdn Bhd v. Khee Cheong Mesin Jahit & Letrik Sdn Bhd & Ors
(Company law - Debenture - Fixed and floating charge - Breach of terms - Allegation of) [2009] 7 CLJ 26

Hong Leong Finance Bhd v. Maxdouble Construction (M) Sdn Bhd & Ors
(Civil procedure - Action - Discontinuance of - Whether an abandonment of claim) [2009] 7 CLJ 38

Perkasa Padu Sdn Bhd v. Rayong Nuing & Ors
(Injunction - Injunctive relief - Application for) [2009] 7 CLJ 65

PP v. Mohd Al-Afizi Ithnin
(Criminal law - Dangerous Drugs Act 1952 - Section 39B(1)(a) - Elements - Whether proved) [2009] 7 CLJ 80

PP v. Pe Hong Yong
(Criminal procedure - Sentence - Possession of heroin and monoacetylmorphines - Plea of guilty) [2009] 7 CLJ 97

Re N Hisham N Mohd Kamal; Ex p Amfinance Bhd
(Bankruptcy - Bankruptcy notice - Filing of - Whether the applicable law at time of presentation of petition was pre amended s. 5 Bankruptcy Act 1967) [2009] 7 CLJ 109

Zentor (M) Sdn Bhd v. Muniandy Senggamalay
(Appeal - Appeal record - Subordinate Courts Rules 1980, O. 28 rr. 1, 12, 13) [2009] 7 CLJ 117

SUBJECT INDEX

BANKRUPTCY

Bankruptcy notice - Filing of - Whether the applicable law at time of presentation of petition was pre amended s. 5 Bankruptcy Act 1967 - Interpretation Acts 1948 and 1967, s. 30(1)(a)
Re N Hisham N Mohd Kamal; Ex p Amfinance Bhd
(Hishamudin Mohd Yunus J) [2009] 7 CLJ 109 [HC]

CIVIL PROCEDURE

Action - Discontinuance of - Whether an abandonment of claim - Whether defendants' liabilities discharged by discontinuance of previous suit against them - Term ‘with liberty' used to reserve right of party to file action afresh - Whether plaintiff entitled to file fresh action based on what was due and owing
Hong Leong Finance Bhd v. Maxdouble Construction (M) Sdn Bhd & Ors
(Kang Hwee Gee J) [2009] 7 CLJ 38 [HC]

Appeal - Appeal record - Subordinate Courts Rules 1980, O. 28 rr. 1, 12, 13 - Whether trial judge had not recorded material facts in notes of proceedings - Additional evidence - Inclusion of - Failure to obtain leave of court - Whether inclusion of additional evidence highly improper and legally unsustainable - Whether trial judge embarked on a careful and objective judicial appreciation of evidence adduced - Whether there was any appealable error to justify appellate interference
Zentor (M) Sdn Bhd v. Muniandy Senggamalay
(Low Hop Bing J) [2009] 7 CLJ 117 [HC]

Appeal - Claim for monies owing - Appeal against decision of sessions court allowing plaintiff's claim for RM29,402.10 - Whether trial judge had not recorded material facts in notes of proceedings - Whether trial judge embarked on a careful and objective judicial appreciation of evidence adduced - Whether there was any appealable error to justify appellate interference - Subordinate Courts Rules 1980, O. 28 rr. 1, 12, 13
Zentor (M) Sdn Bhd v. Muniandy Senggamalay
(Low Hop Bing J) [2009] 7 CLJ 117 [HC]

Declaration - Declaratory relief - Application for - Failure to disclose full and frank disclosure of material facts - Whether fatal - Whether relief in nature of declaratory orders could be claimed as of right under s. 41 of the Specific Relief Act 1950 - Whether there was prima facie merit in plaintiff's suit
Perkasa Padu Sdn Bhd v. Rayong Nuing & Ors
(Hamid Sultan Abu Backer JC) [2009] 7 CLJ 65 [HC]

Injunction - Injunctive relief - Application for - Restraining defendants from prosecuting suit - Failure to disclose full and frank disclosure of material facts - Whether fatal - Whether relief in nature of declaratory orders could be claimed as of right under s. 41 of the Specific Relief Act 1950 - Whether there was prima facie merit in plaintiff's suit
Perkasa Padu Sdn Bhd v. Rayong Nuing & Ors
(Hamid Sultan Abu Backer JC) [2009] 7 CLJ 65 [HC]

COMPANY LAW

Debenture - Fixed and floating charge - Breach of terms - Allegation of - First defendant created charges under the provisions of the National Land Code in respect of property in third defendant's favour - Whether contravened terms of debenture - Whether first defendant only holding property as bare trustee for third defendant - Whether third defendant could be deprived of its rights - Whether third defendant's interest takes precedence to that of plaintiff - Whether fraud was committed - Companies Act 1965, s. 108
Danaharta Managers Sdn Bhd v. Khee Cheong Mesin Jahit & Letrik Sdn Bhd & Ors
(Ahmadi Asnawi JC) [2009] 7 CLJ 26 [HC]

Debenture - Fixed and floating charge - Debenture duly registered under the Companies Act 1965 - Effect - Companies Act 1965, s. 108 - Terms of debenture - Whether contravened - First defendant created charges under the provisions of the National Land Code in respect of property in third defendant's favour - Whether first defendant only holding property as bare trustee for third defendant - Whether third defendant could be deprived of its rights - Whether third defendant's interest takes precedence to that of plaintiff - Whether fraud was committed
Danaharta Managers Sdn Bhd v. Khee Cheong Mesin Jahit & Letrik Sdn Bhd & Ors
(Ahmadi Asnawi JC) [2009] 7 CLJ 26 [HC]

CONTRACT

Breach - Terms - Allegation of - Confidential information - Computer program - Whether first defendant wrongfully disclosed plaintiff's confidential information in the plaintiff's computer program ‘CAS' to second and third defendants - Distinction between confidential information related to or about the CAS program and confidential information embedded in or contained in the CAS program - Whether plaintiff identified nature and type of confidential information and trade secrets - Whether plaintiff entitled to interlocutory injunction
Alfa Laval (M) Sdn Bhd v. Ng Ah Hai & Ors
(Ramly Ali J) [2009] 7 CLJ 1 [HC]

COPYRIGHT

Infringement - Computer program - Whether defendants have copied essential elements of plaintiff's CAS program's structure, sequence and organization - Whether there was evidence the defendants had unlawfully reproduced or copied the plaintiff's user guides and manuals qualitatively or distributed infringing copies to the public by sale or other transfer of ownership - Whether copyright infringement established
Alfa Laval (M) Sdn Bhd v. Ng Ah Hai & Ors
(Ramly Ali J) [2009] 7 CLJ 1 [HC]

CRIMINAL LAW

Dangerous Drugs Act 1952 - Section 39B(1)(a) - Trafficking in 981.4 gram cannabis - Elements - Whether proved - Drugs found in black sling bag slung over accused's shoulder - Custody, control and/or possession - Whether there was reasonable inference of - Absence of evidence of an overt act - Whether drugs intended for personal consumption could be ruled out - Whether just and fair to give benefit to the accused - Whether there was no direct evidence of trafficking - Whether charge should be amended to one of possession - Dangerous Drugs Act 1952, s. 39A(2)
PP v. Mohd Al-Afizi Ithnin
(Jeffrey Tan J) [2009] 7 CLJ 80 [HC]

CRIMINAL PROCEDURE

Dangerous drugs - Trafficking in 981.4 gram cannabis - Elements - Whether proved - Drugs found in black sling bag slung over accused's shoulder - Custody, control and/or possession - Whether there was reasonable inference of - Absence of evidence of an overt act - Whether drugs intended for personal consumption could be ruled out - Whether just and fair to give benefit to the accused - Whether there was no direct evidence of trafficking - Whether charge should be amended to one of possession - Dangerous Drugs Act 1952, s. 39A(2)
PP v. Mohd Al-Afizi Ithnin
(Jeffrey Tan J) [2009] 7 CLJ 80 [HC]

Sentence - Possession of heroin and monoacetylmorphines - Plea of guilty - Whether reduction in terms of imprisonment should be imposed - Facts and circumstances - Whether due consideration was given to accused for pleading guilty - Public interest - Consideration of - Whether sentence should be lenient or deterrent - Dangerous Drugs Act 1952, ss. 12(2), 39A(2)
PP v. Pe Hong Yong
(Tuan Abang Iskandar JC) [2009] 7 CLJ 97 [HC]

HIRE PURCHASE

Agreement - Breach - Failure to pay instalments - Termination of agreement - Whether plaintiff entitled to claim arrears of instalments due at point of termination or all instalments due under agreement - Liability of guarantor - Whether second and fourth defendants liable to pay - Whether defendants liable as guarantors and indemnors under the joint and several guarantees which they signed with plaintiff
Hong Leong Finance Bhd v. Maxdouble Construction (M) Sdn Bhd & Ors
(Kang Hwee Gee J) [2009] 7 CLJ 38 [HC]

STATUTORY INTERPRETATION

Amending legislation - Effect of - Filing of bankruptcy notice done when pre amended s. 5 Bankruptcy Act 1967 still in force - Applicability - Interpretation Acts 1948 and 1967, s. 30(1)(a)
Re N Hisham N Mohd Kamal; Ex p Amfinance Bhd
(Hishamudin Mohd Yunus J) [2009] 7 CLJ 109 [HC]

TRADE MARKS

Passing off - Allegation of - Functional designs of product - Whether could form the basis for a valid distinctive get up for passing off - Whether functional or utilitarian characteristics of an article of manufacture protectable under passing off law - Whether plaintiff showed goodwill in respect of the distinctiveness of these functional attributes
Alfa Laval (M) Sdn Bhd v. Ng Ah Hai & Ors
(Ramly Ali J) [2009] 7 CLJ 1 [HC]

CASE OF THE WEEK

WAN SAGAR WAN EMBONG v. HARUN TAIB (NO 2)

ELECTION: Petition - Petition to set aside election - Appeal against striking out of petition - Inclusion of evidence in petition - Allegations of corrupt practices - Whether there was failure to plead sufficient facts and grounds - Election Petition Rules 1954, r. 5

UPCOMING EVENTS

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