Bulletin_02

CLJ Bulletin, Issue 2011, Vol 2

14 January 2011

CLJ Law Malaysia

http://www.cljlaw.com

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New This Week	1. Legislation Highlights
	2. Articles
	a) Legal Network Series Articles
	3. Latest Cases
	a) Legal Network Series
	b) CLJ Volume 9 (Part 8) 2010

1. Legislation Highlights

PU(A)

NUMBER TITLE DATE COMING INTO FORCE
PRINCIPAL ACT NO

PU(A) 426/2010 Price Control (Fixing Of Maximum Price) (No 8) Order 2010 23 December 2010 ACT 121

PU(A) 427/2010 Control Of Supplies (Controlled Articles) (No 6) Order 2010 23 December 2010 ACT 122

PU(A) 428/2010 Income Tax (Deduction For Premium For Export Credit Insurance Based On Takaful Concept) Rules 2010 23 December 2010 ACT 53

PU(A) 429/2010 Income Tax (Determination Of Knowledge Worker, Qualified Activity And Specified Region) Rules 2010 23 December 2010 ACT 53

PU(A) 430/2010 Prison (Parole) Regulations 2010 23 December 2010 ACT 537

PU(B)

NUMBER TITLE DATE COMING INTO FORCE
PRINCIPAL ACT NO

PU(B) 526/2010 Designation Under Paragraph 5(1)(B) 18 November 2010 ACT 349

PU(B) 527/2010 Designation Under Paragraph 5(1)(B) 18 November 2010 ACT 349

PU(B) 528/2010 Notice Of Exemption Under Subsection 96(1) 18 November 2010 ACT 125

PU(B) 529/2010 Appointment Under Subsection 3(1) 18 November 2010 ACT 115

PU(B) 530/2010 Appointment Of Lock-Ups To Be Places Of Confinement 22 November 2010 ACT 537

Latest Bills

NUMBER TITLE DATE COMING INTO FORCE
PRINCIPAL ACT NO

DR 39/2010 Merchant Shipping (Oil Pollution) (Amendment) Bill 2010 - ACT 515

DR 40/2010 International Islamic Liquidity Management Corporation Bill 2010 - -

DR 41/2010 Agensi Inovasi Malaysia Bill 2010 - -

DR 46/2010 Copyright (Amendment) Bill 2010 - ACT 332

DR 47/2010 Renewable Energy Bill 2010 - -

2. Articles

a) Legal Network Series Articles

1. Investigating Commonwealth Human Rights Breaches ^{[Read
excerpt]}
By Prabha Nandagopal, Lawyer, Australian Human Rights Commission*

2. The Universality Of Human Rights ^{[Read
excerpt]}
By Lord Hoffmann Judicial Studies Board Annual Lecture*

3. Latest Cases

a) Legal Network Series

CITATION TITLE SUBJECT

[2010] 1 LNS 389 [HC] Zoomlink Trading Sdn Bhd v. Syarikat Sungai Rekk Pembangungan Sdn Bhd

CIVIL PROCEDURE: Disposal of action without trial - Disposal of case on point of law - Limitation - Application by defendant to determine whether plaintiff's cause of action time-barred under s. 6(1)(a) Limitation Act 1953 - Whether postponement under s. 29 applies - Rules of the High Court 1980, O. 14A

LIMITATION: Accrual of cause of action - Claim for overpayment of moneys - When does time start to run - Date alleged overpayment discovered - Date repayment demanded - Allegation of fraud - Whether postponement under s. 29 Limitation Act 1953 applies

[2010] 1 LNS 391 [HC] Ek Seng Sdn Bhd v. Seng Dan Roo

CONTRACT: Shares - Sale of - Whether an outright sale - Plaintiff initially transferred shares to defendant under deed of trust - Plaintiff subsequently sold said shares to defendant with option to buy-back - Whether there was an outright sale - Whether deed of trust terminated or converted into buy-back clause - Whether deed of trust can be terminated by company resolution - Whether deed of revocation necessary - Whether failure of defendant to pay for shares created implied trust - Whether merely created a debt

COMPANY LAW: Shares - Plaintiff company acquired shares in another company - Plaintiff transferred said shares to defendant director under deed of trust - Resulting trust - Plaintiff subsequently sold said shares to defendant with option to buy-back - Whether there was an outright sale - Whether deed of trust terminated or converted into buy-back clause - Whether company resolution can terminate deed of trust - Whether deed of revocation necessary - Whether failure of defendant to pay for shares created implied trust

TRUSTS: Resulting trust - Revocation - Deed of trust - Whether can be terminated by company resolution - Whether can only be terminated by deed of revocation

[2010] 1 LNS 392 [HC] Chew Kah Wah v. Public Finance Bhd
BANKRUPTCY: Creditor's petition - Hearing - Postponement, application for - Refusal of SAR to allow - Adjudication order and receiving order granted - Appeal against decision of SAR - Failure of judgment debtor to comply with three-day rule in r. 117 Bankruptcy Rules 1969 - Whether strict compliance possible and fair - Whether r. 127 applies - Whether a rule of guidance - Whether postponement should have been granted in interest of justice and fairness - Discretion of court under r. 275, exercise of

[2010] 1 LNS 394 [HC] KFH Ijarah House (M) Sdn Bhd v. Aamir Nordin Ariffin

CONTRACT: Employment contract - Breach - Company suing CEO for breach of terms of employment - Breach of fiduciary duties - Unauthorised use of company funds - Failure to exercise due diligence and protect interests of company - Conflict of interest - Misuse of company resources - Failure to make material disclosures - Making false representations - Fraud - Equitable fraud - Exemplary damages, whether justified

CONTRACT: Employment contract - Fiduciary duty - Paradigmatic fiduciary relationship - Contract of fidelity - Obligation of loyalty - Breach by employee - Damages

CITATION	TITLE	SUBJECT
[2010] 1 LNS 389 [HC]	Zoomlink Trading Sdn Bhd v. Syarikat Sungai Rekk Pembangungan Sdn Bhd	CIVIL PROCEDURE: Disposal of action without trial - Disposal of case on point of law - Limitation - Application by defendant to determine whether plaintiff's cause of action time-barred under s. 6(1)(a) Limitation Act 1953 - Whether postponement under s. 29 applies - Rules of the High Court 1980, O. 14A LIMITATION: Accrual of cause of action - Claim for overpayment of moneys - When does time start to run - Date alleged overpayment discovered - Date repayment demanded - Allegation of fraud - Whether postponement under s. 29 Limitation Act 1953 applies
[2010] 1 LNS 391 [HC]	Ek Seng Sdn Bhd v. Seng Dan Roo	CONTRACT: Shares - Sale of - Whether an outright sale - Plaintiff initially transferred shares to defendant under deed of trust - Plaintiff subsequently sold said shares to defendant with option to buy-back - Whether there was an outright sale - Whether deed of trust terminated or converted into buy-back clause - Whether deed of trust can be terminated by company resolution - Whether deed of revocation necessary - Whether failure of defendant to pay for shares created implied trust - Whether merely created a debt COMPANY LAW: Shares - Plaintiff company acquired shares in another company - Plaintiff transferred said shares to defendant director under deed of trust - Resulting trust - Plaintiff subsequently sold said shares to defendant with option to buy-back - Whether there was an outright sale - Whether deed of trust terminated or converted into buy-back clause - Whether company resolution can terminate deed of trust - Whether deed of revocation necessary - Whether failure of defendant to pay for shares created implied trust TRUSTS: Resulting trust - Revocation - Deed of trust - Whether can be terminated by company resolution - Whether can only be terminated by deed of revocation
[2010] 1 LNS 392 [HC]	Chew Kah Wah v. Public Finance Bhd	BANKRUPTCY: Creditor's petition - Hearing - Postponement, application for - Refusal of SAR to allow - Adjudication order and receiving order granted - Appeal against decision of SAR - Failure of judgment debtor to comply with three-day rule in r. 117 Bankruptcy Rules 1969 - Whether strict compliance possible and fair - Whether r. 127 applies - Whether a rule of guidance - Whether postponement should have been granted in interest of justice and fairness - Discretion of court under r. 275, exercise of
[2010] 1 LNS 394 [HC]	KFH Ijarah House (M) Sdn Bhd v. Aamir Nordin Ariffin	CONTRACT: Employment contract - Breach - Company suing CEO for breach of terms of employment - Breach of fiduciary duties - Unauthorised use of company funds - Failure to exercise due diligence and protect interests of company - Conflict of interest - Misuse of company resources - Failure to make material disclosures - Making false representations - Fraud - Equitable fraud - Exemplary damages, whether justified CONTRACT: Employment contract - Fiduciary duty - Paradigmatic fiduciary relationship - Contract of fidelity - Obligation of loyalty - Breach by employee - Damages

b. CLJ Volume 9 (Part 8) 2010

COURT

FEDERAL COURT

Ricky Thong Yew Fook & Anor v. Arab Malaysian Bank Bhd
(Banking - Banker and customer - Duty of care) [2010] 9 CLJ 905

COURT OF APPEAL

Sim Kooi Soon v. Malaysia Airlines System
(Setting aside - Application for) [2010] 9 CLJ 924

Sim Kooi Soon v. Malaysia Airlines System (No 2)
(Judicial review - Application for) [2010] 9 CLJ 936

HIGH COURT

Ahmad Fahrul Razy Abdullah v. PP & Another Appeal
(Sentencing - Corruption) [2010] 9 CLJ 947

Arah Cipta Sdn Bhd v. Piala Gagasan (M) Sdn Bhd & Anor
(Company Law - Shares - Preference shares) [2010] 9 CLJ 964

Chan Hak Foon v. Sutera Harbour Sdn Bhd & Anor
(Civil Procedure - Judgments and orders - Setting aside) [2010] 9 CLJ 995

PP v. Ayar & Ors
(Revision - Remand proceedings) [2010] 9 CLJ 1006

SUBJECT INDEX

BANKING

Banker and customer - Duty of care - Housing Development Account (HDA) operated in contravention of Housing Developers (Housing Development Account) Regulations 1991 and Housing Development (Control and Licensing) Act 1966 - Whether bank liable for breach of statutory duty - Whether bank in breach of contractual relationship in relation to operation of HDA - Whether bank liable as a constructive trustee
Ricky Thong Yew Fook & Anor v. Arab Malaysian Bank Bhd
(Alauddin Mohd Sheriff PCA, Zulkefli Makinudin & Mohd Ghazali Yusoff FCJJ) [2010] 9 CLJ 905 [FC]

CIVIL PROCEDURE

Judgments and orders - Setting aside - Application for - Application for an order that registration under Reciprocal Enforcement of Judgment Act 1958 (REJA) of a judgment be set aside - Whether requirement under s. 5(1)(a) REJA satisfied - Whether condition under s. 5(2)(a) REJA fulfilled for registration of foreign judgment - Whether enforcement of judgment contrary to public policy - Whether judgment creditor had misled and deceived the court into applying Hong Kong law
Chan Hak Foon v. Sutera Harbour Sdn Bhd & Anor
(Zulkifli Bakar J) [2010] 9 CLJ 995 [HC]

Judicial review - Application for - Filing of ten other review applications of the same nature - Seeking annulment of decisions of court - Whether an abuse of court process - Whether frivolous and baseless - Whether remedies sought misconceived and without any basis in law - Whether applicant should be declared a vexatious litigant
Sim Kooi Soon v. Malaysia Airlines System (No 2)
(Abdul Malik Ishak, Kang Hwee Gee & Azhar Ma’ah JJCA) [2010] 9 CLJ 936 [CA]

Res judicata - Cause of action estoppel - Issue estoppel - Whether instant action caught by doctrine of res judicata by reason of earlier action - Whether earlier action and instant action based on same facts and issues
Arah Cipta Sdn Bhd v. Piala Gagasan (M) Sdn Bhd & Anor
(Hanipah Farikullah JC) [2010] 9 CLJ 964 [HC]

Setting aside - Application for - Applicant seeking order that all previous orders of the court deemed ‘irregular’ or to be ‘set aside’- Whether court had jurisdiction to review previous decisions - Persistent conduct of applicant in making numerous applications to review decision of court - Whether in bad faith - Whether an abuse of court process - Whether application dismissed
Sim Kooi Soon v. Malaysia Airlines System
(Abdul Malik Ishak, Kang Hwee Gee & Azhar Ma’ah JJCA) [2010] 9 CLJ 924 [CA]

COMPANY LAW

Shares - Preference shares - Redemption - Redemption of redeemable preference shares - Redemption monies to be paid either out of profits available for dividend or out of proceeds of fresh issue of shares - Whether redemption contravened s. 61(3) Companies Act 1965 because company not making profit - Whether shareholders to refund redemption monies to company - Whether a defence for shareholders to show that they were ignorant of the company’s financial difficulty
Arah Cipta Sdn Bhd v. Piala Gagasan (M) Sdn Bhd & Anor
(Hanipah Farikullah JC) [2010] 9 CLJ 964 [HC]

CRIMINAL LAW

Anti Corruption Act 1997 - Section 10(a)(bb), 11(a) - Soliciting and accepting RM1,000 by policeman as inducement for releasing detainee from police lock-up - Whether prima facie case established - Whether sufficient corroborative evidence available - Whether statutory presumption under s. 42(1) Anti-Corruption Act 1997 properly invoked
Ahmad Fahrul Razy Abdullah v. PP & Another Appeal
(Yew Jen Kie JC) [2010] 9 CLJ 947 [HC]

Anti Corruption Act 1997 - Soliciting for gratification - Presumption under s. 42(a) ACA 1997 - Legal burden of proof on accused to rebut presumption on balance of probabilities - Whether burden heavier than casting reasonable doubt
Ahmad Fahrul Razy Abdullah v. PP & Another Appeal
(Yew Jen Kie JC) [2010] 9 CLJ 947 [HC]

CRIMINAL PROCEDURE

Appeal - Facts, finding of - Finding of facts based on assessment of demeanour - Trial judge’s findings of facts made after a proper evaluation of evidence - Whether appellate interference warranted
Ahmad Fahrul Razy Abdullah v. PP & Another Appeal
(Yew Jen Kie JC) [2010] 9 CLJ 947 [HC]

Revision - Remand proceedings - Magistrate rejecting application for remand order - Whether desirable for magistrate to state reasons for rejecting such application - Criminal Procedure Code, s. 117
PP v. Ayar & Ors
(Teo Say Eng JC) [2010] 9 CLJ 1006 [HC]

Revision - Remand proceedings - Magistrate rejecting application for remand order - Whether use of phrase ‘acquitted and discharged’ in remand proceedings incorrect
PP v. Ayar & Ors
(Teo Say Eng JC) [2010] 9 CLJ 1006 [HC]

Revision - Remand proceedings - Remand and further detention under the Fisheries Act 1985 - Whether procedure under the Criminal Procedure Code applicable
PP v. Ayar & Ors
(Teo Say Eng JC) [2010] 9 CLJ 1006 [HC]

Trial - Evidence, recording of - Mode of taking and recording evidence - Evidence to be recorded in legible handwriting
PP v. Ayar & Ors
(Teo Say Eng JC) [2010] 9 CLJ 1006 [HC]

Sentencing - Corruption - Policeman convicted of corruption - Public interest factor in sentencing - Whether abuse of position by policeman an aggravating factor - Whether numerous adjournments of hearing through no fault of accused a mitigating factor
Ahmad Fahrul Razy Abdullah v. PP & Another Appeal
(Yew Jen Kie JC) [2010] 9 CLJ 947 [HC]

EVIDENCE

Appeal - Interfering with findings of facts - Credibility of witnesses - Demeanour - Assessment and findings of trial judge - Whether unsupported by or against weight of evidence - Whether appellate court should interfere with trial judge’s findings on credibility
Ahmad Fahrul Razy Abdullah v. PP & Another Appeal
(Yew Jen Kie JC) [2010] 9 CLJ 947 [HC]

Witness - Reliable witness - Whether prosecution witness a reliable witness - Assessment of demeanour before trial court - Whether supported by evidence - Whether appellate interference required
Ahmad Fahrul Razy Abdullah v. PP & Another Appeal
(Yew Jen Kie JC) [2010] 9 CLJ 947 [HC]

LAND LAW

Housing developers - Housing Development Account (HDA) - HDA operated in contravention of Housing Developers (Housing Development Account) Regulations 1991 and Housing Development (Control and Licensing) Act 1966 - Locus standi to commence enforcement action in relation to contraventions - Whether bank liable for losses caused by contravention
Ricky Thong Yew Fook & Anor v. Arab Malaysian Bank Bhd
(Alauddin Mohd Sheriff PCA, Zulkefli Makinudin & Mohd Ghazali Yusoff FCJJ) [2010] 9 CLJ 905 [FC]

Housing developers - Housing Development Account (HDA) - Whether current account held by housing development company was a HDA - Written confirmation mistakenly issued by bank confirming account to be a HDA - Whether constituted a certificate within meaning of regulation 3 of Housing Developers (Housing Development Account) Regulations 1991 - Whether sufficient to characterize account as a HDA under s. 7A of Housing Development (Control and Licensing) Act 1966
Ricky Thong Yew Fook & Anor v. Arab Malaysian Bank Bhd
(Alauddin Mohd Sheriff PCA, Zulkefli Makinudin & Mohd Ghazali Yusoff FCJJ) [2010] 9 CLJ 905 [FC]

CASE OF THE WEEK

SUZANA MD ARIS v. DSP ISHAK HUSSAIN & ORS

CIVIL PROCEDURE: Damages - Aggravated damages - Aggravated damages not specifically pleaded by plaintiff - Whether plaintiff's plea for general damages sufficient - Whether court entitled to award aggravated damages if pleaded and proved facts justified such award

CIVIL PROCEDURE: Damages - Aggravated damages - Death of victim whilst in police custody - Whether aggravated damages recoverable by dependants - Whether aggravated damages reflected court's and society's abhorrence - Whether aggravated damages reflected public's negative reaction to apathy, abuse and abdication of duty by police

CIVIL PROCEDURE: Damages - Assessment of damages - Appeal against assessment by registrar - Whether judge ought to be slow to disturb such assessment

CONSTITUTIONAL LAW: Fundamental liberties - Right to life and liberty - Deprivation of such fundamental rights - Whether 'vindicatory damages' recoverable

CONSTITUTIONAL LAW: Fundamental liberties - Right to life and liberty - Person deprived of medical care and attention whilst in police custody - Whether such deprivation a deprivation of person's right to life and liberty - Whether such deprivation tantamount to torture, cruel and inhumane treatment - Whether aggravated and exemplary damages recoverable for such oppressive, arbitrary or unconstitutional action by servants of the state - Federal Constitution, Part II - Universal Declaration of Human Rights 1948, arts. 3, 5

DAMAGES: Death - Dependency claim - Death of victim whilst in police custody - Death caused by police negligence - Children of deceased victim of tender age and in their formative years - Whether award of RM200,000 for each of victim's two children reasonable

DAMAGES: Death - Dependency claim - Death of husband and father due to a breach of his fundamental liberty and basic human rights - Whether dependants entitled to recover aggravated and exemplary damages - Civil Law Act 1956, s. 7

TORT: Damages - Negligence - Death of victim whilst in police custody - Death of victim due to negligence of police in providing medical care and attention - Whether aggravated and exemplary damages recoverable

WORDS AND PHRASES: 'enshrined' - Human Rights Commission of Malaysia Act 1999, s. 2

CLJ Bulletin
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NUMBER	TITLE	DATE COMING INTO FORCE	PRINCIPAL ACT NO
PU(A) 426/2010	Price Control (Fixing Of Maximum Price) (No 8) Order 2010	23 December 2010	ACT 121
PU(A) 427/2010	Control Of Supplies (Controlled Articles) (No 6) Order 2010	23 December 2010	ACT 122
PU(A) 428/2010	Income Tax (Deduction For Premium For Export Credit Insurance Based On Takaful Concept) Rules 2010	23 December 2010	ACT 53
PU(A) 429/2010	Income Tax (Determination Of Knowledge Worker, Qualified Activity And Specified Region) Rules 2010	23 December 2010	ACT 53
PU(A) 430/2010	Prison (Parole) Regulations 2010	23 December 2010	ACT 537