CLJ Bulletin, Issue 2010, Vol 03

15 January 2010

CLJ Law MALAYSIA

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1. Legal Network Series Articles

The Role of Good Governance in Protecting and Promoting Human Rights - A Case Study of Malaysia ^{[Read excerpt]}
By  Ahmad Masum

^^

2. CLJ Volume 1 (Part 4) 2010

COURT

FEDERAL COURT

Takako Sakao v. Ng Pek Yuen & Anor
(Restrictions in respect of non-citizens for purchase of property) [2010] 1 CLJ 381

Takako Sakao v. Ng Pek Yuen & Anor (No 2)
(Costs - Indemnity basis) [2010] 1 CLJ 419

Takako Sakao v. Ng Pek Yuen & Anor (No 3)
(Power of Federal Court to stay execution on judgments) [2010] 1 CLJ 429

COURT OF APPEAL

Dato' Seri Anwar Ibrahim v. Tun Dr Mahathir Mohamad
(Defective memorandum and record of appeal) [2010] 1 CLJ 444

North Plaza Sdn Bhd v. United Securities Sdn Bhd
(Caveats - Removal of) [2010] 1 CLJ 470

Yoong Sze Fatt v. Pengkalen Securities Sdn Bhd
(Stockbroker - Trading account) [2010] 1 CLJ 484

HIGH COURT

Jalil Yunus v. PP
(Information leading to fact discovered) [2010] 1 CLJ 509

N Indra P Nallathamby v. PP
(Search warrant - Application for revision) [2010] 1 CLJ 521

SUBJECT INDEX

ADMINISTRATIVE LAW

Judicial proceedings - Courts - Mandatory to use National language in courts - Memorandum of appeal filed in English language incurably defective
Dato' Seri Anwar Ibrahim v. Tun Dr Mahathir Mohamad
(Abdul Malik Ishak, Azhar Ma'ah & Syed Ahmad Helmy JJCA) [2010] 1 CLJ 444 [CA]

CIVIL PROCEDURE

Appeal - Appeal to Court of Appeal - Defective memorandum and record of appeal - Memorandum of appeal filed in English language - Memorandum of appeal not signed by appellant's solicitors - Memorandum of appeal undated - Failure to file chronology of events - Failure to attach proper index to Part "C" of record of appeal - Documentary exhibits in record of appeal not separately indexed - Memorandum and record of appeal defective - Appeal not properly brought and therefore dismissed - Rules of the Court of Appeal 1994, rr. 18(10), 101
Dato' Seri Anwar Ibrahim v. Tun Dr Mahathir Mohamad
(Abdul Malik Ishak, Azhar Ma'ah & Syed Ahmad Helmy JJCA) [2010] 1 CLJ 444 [CA]

Appeal - Fact, findings of - Concurrent findings of fact by trial and intermediate appellate court - Whether there was unwarranted deduction based on faulty judicial reasoning from admitted and established facts - Whether miscarriage of justice occasioned - Whether concurrent findings rule of practice ought to apply
Takako Sakao v. Ng Pek Yuen & Anor
(Richard Malanjum CJ (Sabah & Sarawak), Zulkefli Makinudin & Gopal Sri Ram FCJJ) [2010] 1 CLJ 381 [FC]

Appeal - Memorandum and record of appeal - Defective - Memorandum of appeal filed in English language - Memorandum of appeal not signed by appellant's solicitors - Memorandum of appeal undated - Failure to file chronology of events - Failure to attach proper index to Part "C" of record of appeal - Documentary exhibits in record of appeal not separately indexed - Memorandum and record of appeal defective - Appeal not properly brought before Court of Appeal
Dato' Seri Anwar Ibrahim v. Tun Dr Mahathir Mohamad
(Abdul Malik Ishak, Azhar Ma'ah & Syed Ahmad Helmy JJCA) [2010] 1 CLJ 444 [CA]

Costs - Indemnity basis - Whether court's discretion to award costs on an indemnity basis unfettered
Takako Sakao v. Ng Pek Yuen & Anor (No 2)
(Richard Malanjum CJ (Sabah & Sarawak), Zulkefli Makinudin & Gopal Sri Ram FCJJ) [2010] 1 CLJ 419 [FC]

Costs - Power to award costs - Whether costs may be ordered against a non-party - Whether non-party ought to be warned at earliest opportunity that costs would be sought against him
Takako Sakao v. Ng Pek Yuen & Anor (No 3)
(Zulkefli Makinudin, Gopal Sri Ram & Abdull Hamid Embong FCJJ) [2010] 1 CLJ 429 [FC]

Costs - Security for costs - Application for - Principles to be applied
North Plaza Sdn Bhd v. United Securities Sdn Bhd
(Suriyadi Halim Omar, Wan Adnan Muhamad & Hishamudin Mohd Yunus JJCA) [2010] 1 CLJ 470 [CA]

Execution - Declaratory order - Whether declaratory order capable of enforcement through the execution process - Whether a declaratory order may be stayed
Takako Sakao v. Ng Pek Yuen & Anor (No 3)
(Zulkefli Makinudin, Gopal Sri Ram & Abdull Hamid Embong FCJJ) [2010] 1 CLJ 429 [FC]

Execution - Stay - Power of Federal Court to stay execution on judgments - Whether exercisable only in cases where an appeal is pending in the Federal Court - Whether such power exercisable in cases where a review is sought under r. 137 of the Rules of the Federal Court 1995 - Whether s. 80 of the Courts of Judicature Act 1964 in pari materia with s. 44 of the same Act - Whether s. 80 of the Act ought to be similarly construed as s. 44
Takako Sakao v. Ng Pek Yuen & Anor (No 3)
(Zulkefli Makinudin, Gopal Sri Ram & Abdull Hamid Embong FCJJ) [2010] 1 CLJ 429 [FC]

Judgments and orders - Consequential orders - Power of court to give effect to its judgment or order
Takako Sakao v. Ng Pek Yuen & Anor (No 2)
(Richard Malanjum CJ (Sabah & Sarawak), Zulkefli Makinudin & Gopal Sri Ram FCJJ) [2010] 1 CLJ 419 [FC]

Judgments and orders - Declaratory order - Enforcement of - Whether declaratory capable of enforcement through the execution process - Whether a declaratory order may be stayed
Takako Sakao v. Ng Pek Yuen & Anor (No 3)
(Zulkefli Makinudin, Gopal Sri Ram & Abdull Hamid Embong FCJJ) [2010] 1 CLJ 429 [FC]

Jurisdiction - Federal Court - Incidental directions and interim orders - Power of Federal Court to stay execution on judgments - Whether exercisable only in cases where an appeal is pending in the Federal Court - Whether such power exercisable in cases where a review is sought under r. 137 of the Rules of the Federal Court 1995 - Whether s. 80 of the Courts of Judicature Act 1964 in pari materia with s. 44 of the same Act - Whether s. 80 of the Act ought to be similarly construed as s. 44
Takako Sakao v. Ng Pek Yuen & Anor (No 3)
(Zulkefli Makinudin, Gopal Sri Ram & Abdull Hamid Embong FCJJ) [2010] 1 CLJ 429 [FC]

Jurisdiction - Federal Court - Inherent powers of the court - Whether such power applicable where decision of the Federal Court is only being questioned, whether in law or on the facts of the case - Rules of the Federal Court, r. 137
Takako Sakao v. Ng Pek Yuen & Anor (No 3)
(Zulkefli Makinudin, Gopal Sri Ram & Abdull Hamid Embong FCJJ) [2010] 1 CLJ 429 [FC]

No case to answer - Effect of – Submission of no case to answer and election not to call evidence - Whether all evidence led by plaintiff assumed to be correct - Allegation that signature on account opening form forged - Defendant estopped from setting up defence based on forgery due to failure to testify or lead evidence
Yoong Sze Fatt v. Pengkalen Securities Sdn Bhd
(Low Hop Bing, Heliliah Mohd Yusof & Abdul Malik Ishak JJCA) [2010] 1 CLJ 484 [CA]

Pleadings - Whether parties bound - Allegation of forgery of signature not pleaded
Yoong Sze Fatt v. Pengkalen Securities Sdn Bhd
(Low Hop Bing, Heliliah Mohd Yusof & Abdul Malik Ishak JJCA) [2010] 1 CLJ 484 [CA]

Specific relief - Mandatory injunction - Whether Federal Court empowered to fashion specific relief such as mandatory injunction to meet justice of the case
Takako Sakao v. Ng Pek Yuen & Anor (No 2)
(Richard Malanjum CJ (Sabah & Sarawak), Zulkefli Makinudin & Gopal Sri Ram FCJJ) [2010] 1 CLJ 419 [FC]

Trial - Defendant fully conversant with facts but refusing to attend court and give evidence - Consequences of - Whether evidence given by plaintiff ought to be presumed to be true - Whether adverse inference ought to be drawn against defendant - Whether defendant's failure to appear and give evidence at trial discredited defendant's case and strengthened plaintiff's case - Whether trial judge's failure to consider effects of defendant's failure to attend court and give evidence constituted a misdirection occasioning a miscarriage of justice
Takako Sakao v. Ng Pek Yuen & Anor
(Richard Malanjum CJ (Sabah & Sarawak), Zulkefli Makinudin & Gopal Sri Ram FCJJ) [2010] 1 CLJ 381 [FC]

COMPANY LAW

Corporate personality - Corporate veil - Piercing of - Circumstances when corporate veil may be pierced
Takako Sakao v. Ng Pek Yuen & Anor
(Richard Malanjum CJ (Sabah & Sarawak), Zulkefli Makinudin & Gopal Sri Ram FCJJ) [2010] 1 CLJ 381 [FC]

CONSTITUTIONAL LAW

National language - Use of National language in courts - Mandatory to use National language in courts - Memorandum of appeal filed in English language incurably defective - Federal Constitution, art. 152 - National Language Act 1963/1967, s. 8 - Interpretation Acts 1948 and 1967, s. 3
Dato' Seri Anwar Ibrahim v. Tun Dr Mahathir Mohamad
(Abdul Malik Ishak, Azhar Ma'ah & Syed Ahmad Helmy JJCA) [2010] 1 CLJ 444 [CA]

CONTRACT

Privity of contract - Trusts - Whether trusts an exception to the common law rule of privity of contract
Takako Sakao v. Ng Pek Yuen & Anor
(Richard Malanjum CJ (Sabah & Sarawak), Zulkefli Makinudin & Gopal Sri Ram FCJJ) [2010] 1 CLJ 381 [FC]

CRIMINAL LAW

Dangerous Drugs Act 1952 - Possession - Cannabis - Drugs allegedly found in a drawer in rear room of accused's house based on information given by accused - Information given by accused inadmissible under s. 27 Evidence Act 1950 - Prejudicial evidence admitted against accused - Prosecution witness not credible - Prima facie case not established - Dangerous Drugs Act 1952, s. 6
Jalil Yunus v. PP
(Zamani Rahim JC) [2010] 1 CLJ 509 [HC]

CRIMINAL PROCEDURE

Revision - Application for - Search warrant - Seizure of results of post-mortem - Proper procedure - Power of Registrar to issue and sign search warrant - Whether search warrant issued legally - Locus standi to make application - Non-compliance with orders in search warrant - Criminal Procedure Code, ss. 51, 54(1)(a), 413 - Subordinate Courts Act 1948, s. 83(a), (b)
N Indra P Nallathamby v. PP
(Yeoh Wee Siam JC) [2010] 1 CLJ 521 [HC]

Search warrant - Application for revision - Seizure of results of post-mortem - Proper procedure - Power of Registrar to issue and sign search warrant - Whether search warrant issued legally - Locus standi to make application - Non-compliance with orders in search warrant - Criminal Procedure Code, ss. 51, 54(1)(a), 413 - Subordinate Courts Act 1948, s. 83(a), (b)
N Indra P Nallathamby v. PP
(Yeoh Wee Siam JC) [2010] 1 CLJ 521 [HC]

EQUITY

Equitable remedies and reliefs - Constructive trust - Property subject to trust sold to third party and purchase price paid to trustee - Impossible to regain property in specie - Whether beneficiary bereft of remedy - Whether trustee ought to be ordered to pay half the purchase price to beneficiary
Takako Sakao v. Ng Pek Yuen & Anor (No 2)
(Richard Malanjum CJ (Sabah & Sarawak), Zulkefli Makinudin & Gopal Sri Ram FCJJ) [2010] 1 CLJ 419 [FC]

Equitable remedies and reliefs - Constructive trust - Tracing - Plaintiff and defendant agreeing to purchase property for business venture - Mutual understanding between plaintiff and defendant that property to be registered in joint names and held in equal shares - Plaintiff contributing towards purchase price - Defendant acquiring and registering property in her sole name and denying plaintiff's right to the property - Whether constructive trust over property created - Whether defendant held property on a constructive trust for the plaintiff - Whether plaintiff entitled to trace her share of the property - Whether equitable for plaintiff to do so
Takako Sakao v. Ng Pek Yuen & Anor
(Richard Malanjum CJ (Sabah & Sarawak), Zulkefli Makinudin & Gopal Sri Ram FCJJ) [2010] 1 CLJ 381 [FC]

Equitable remedies and reliefs - Injunction - Whether Federal Court empowered to fashion specific relief such as mandatory injunction to meet justice of the case
Takako Sakao v. Ng Pek Yuen & Anor (No 2)
(Richard Malanjum CJ (Sabah & Sarawak), Zulkefli Makinudin & Gopal Sri Ram FCJJ) [2010] 1 CLJ 419 [FC]

Equitable remedies and reliefs - Specific performance - Plaintiff and defendant agreeing to purchase property for business venture - Mutual understanding between plaintiff and defendant that property to be registered in joint names and held in equal shares - Defendant acquiring, registering property in her sole name and subsequently selling property to third party - Third party not a bona fide purchaser - Whether constructive trust over property created - Whether agreement may be specifically enforced against third party - Whether doctrine of privity of contract applicable - Specific Relief Act 1950, s. 26(b)
Takako Sakao v. Ng Pek Yuen & Anor
(Richard Malanjum CJ (Sabah & Sarawak), Zulkefli Makinudin & Gopal Sri Ram FCJJ) [2010] 1 CLJ 381 [FC]

Equitable remedies and reliefs - Tracing - Property subject to trust sold to third party and purchase price paid to trustee - Action by beneficiary to enforce beneficial interest under the trust - Whether such action a proprietary claim - Whether such claim entitled beneficiary to trace beneficial ownership in the property into the purchase price in the hands of the trustee - Whether an order to disgorge trust property or the product or substitute thereof constituted a money judgment
Takako Sakao v. Ng Pek Yuen & Anor (No 3)
(Zulkefli Makinudin, Gopal Sri Ram & Abdull Hamid Embong FCJJ) [2010] 1 CLJ 429 [FC]

Fraud in equity - Elements of - Whether intention to deceive a necessary ingredient in equitable fraud
Takako Sakao v. Ng Pek Yuen & Anor
(Richard Malanjum CJ (Sabah & Sarawak), Zulkefli Makinudin & Gopal Sri Ram FCJJ) [2010] 1 CLJ 381 [FC]

EVIDENCE

Adverse inference - Refusal of defendant to testify on own behalf - Consequences of
Takako Sakao v. Ng Pek Yuen & Anor
(Richard Malanjum CJ (Sabah & Sarawak), Zulkefli Makinudin & Gopal Sri Ram FCJJ) [2010] 1 CLJ 381 [FC]

Appeal - Interfering with findings of fact - Concurrent findings of fact by trial and intermediate appellate court - Whether there was unwarranted deduction based on faulty judicial reasoning from admitted and established facts - Whether miscarriage of justice occasioned - Whether concurrent findings rule of practice ought to apply
Takako Sakao v. Ng Pek Yuen & Anor
(Richard Malanjum CJ (Sabah & Sarawak), Zulkefli Makinudin & Gopal Sri Ram FCJJ) [2010] 1 CLJ 381 [FC]

Course of trial - Refusal to give evidence - Defendant fully conversant with facts but refusing to attend court and give evidence - Consequences of
Takako Sakao v. Ng Pek Yuen & Anor
(Richard Malanjum CJ (Sabah & Sarawak), Zulkefli Makinudin & Gopal Sri Ram FCJJ) [2010] 1 CLJ 381 [FC]

Expert evidence - Expert reports - Direct oral evidence to be given by expert in respect of opinion - Evidence Act 1950, s. 60(1)(d) - Report inadmissible in absence of direct evidence from expert - Sample signatures in report incapable of independent verification
Yoong Sze Fatt v. Pengkalen Securities Sdn Bhd
(Low Hop Bing, Heliliah Mohd Yusof & Abdul Malik Ishak JJCA) [2010] 1 CLJ 484 [CA]

Information leading to fact discovered - Admissibility of statement - Whether written record of information supplied by accused under s. 27 Evidence Act 1950 is admissible - Whether such written record is substantive evidence - Whether information distinctly related to discovery of drugs - Drugs already discovered before information given - Information which does not lead to discovery of drugs inadmissible - Evidence Act 1950, s. 27
Jalil Yunus v. PP
(Zamani Rahim JC) [2010] 1 CLJ 509 [HC]

Witness - Credibility - Self-contradiction - Evidence given by prosecution witness inconsistent with witness's earlier police report - Whether a credible witness
Jalil Yunus v. PP
(Zamani Rahim JC) [2010] 1 CLJ 509 [HC]

LAND LAW

Caveats - Removal of - Proprietary rights over land - Separate legal entity - Aggrieved person - Locus standi to make application - National Land Code, s. 327(1)
North Plaza Sdn Bhd v. United Securities Sdn Bhd
(Suriyadi Halim Omar, Wan Adnan Muhamad & Hishamudin Mohd Yunus JJCA) [2010] 1 CLJ 470 [CA]

Ownership - Restrictions in respect of non-citizens for purchase of property - Constructive trust created over property in favour of non-citizen beneficiary - Whether prior approval of State Authority required - Whether s. 433B of the National Land Code applied to constructive trusts - Whether s. 433B of the National Land Code applied only to express trusts registered under s. 344 of the National Land Code
Takako Sakao v. Ng Pek Yuen & Anor
(Richard Malanjum CJ (Sabah & Sarawak), Zulkefli Makinudin & Gopal Sri Ram FCJJ) [2010] 1 CLJ 381 [FC]

Restraint on dealings - Registrar's caveat - Entry of - Whether Federal Court empowered to direct Registrar to enter caveat - National Land Code, ss. 320, 321 & 417
Takako Sakao v. Ng Pek Yuen & Anor (No 2)
(Richard Malanjum CJ (Sabah & Sarawak), Zulkefli Makinudin & Gopal Sri Ram FCJJ) [2010] 1 CLJ 419 [FC]

PARTNERSHIP

Duties - Good faith - Mutual understanding between partners to purchase and register property in their joint names - Mutual understanding that property to be held in equal shares - One partner acquiring and registering property in her sole name and denying the other's right to a half share in the property - Whether former partner breaching fiduciary duties owed to the latter partner - Whether former partner guilty of equitable fraud in relation to the latter's interest in the property
Takako Sakao v. Ng Pek Yuen & Anor
(Richard Malanjum CJ (Sabah & Sarawak), Zulkefli Makinudin & Gopal Sri Ram FCJJ) [2010] 1 CLJ 381 [FC]

SECURITIES

Stockbroker - Trading account - Recovery for moneys on transactions made on defendant's account - Remisier instructed by defendant's employer on behalf of defendant to purchase shares - Whether defendant liable to pay - Defendant aware of instructions given by his employer to remisier - No complaint, protest or query made by defendant to plaintiff - Defendant estopped by conduct from denying liability to pay
Yoong Sze Fatt v. Pengkalen Securities Sdn Bhd
(Low Hop Bing, Heliliah Mohd Yusof & Abdul Malik Ishak JJCA) [2010] 1 CLJ 484 [CA]

TRUSTS

Constructive trust - Circumstances when such a trust would arise - Role of equity in constructive trusts - Rights of beneficiaries under a constructive trust
Takako Sakao v. Ng Pek Yuen & Anor
(Richard Malanjum CJ (Sabah & Sarawak), Zulkefli Makinudin & Gopal Sri Ram FCJJ) [2010] 1 CLJ 381 [FC]

Constructive trust - Property - Plaintiff and defendant agreeing to purchase property for business venture - Mutual understanding between plaintiff and defendant that property to be registered in joint names and held in equal shares - Plaintiff contributing towards purchase price - Defendant acquiring and registering property in her sole name and denying plaintiff's right to the property - Whether constructive trust over property created - Whether defendant held property on a constructive trust for the plaintiff
Takako Sakao v. Ng Pek Yuen & Anor
(Richard Malanjum CJ (Sabah & Sarawak), Zulkefli Makinudin & Gopal Sri Ram FCJJ) [2010] 1 CLJ 381 [FC]

Constructive trust - Property - Property on trust realised by trustee - Whether beneficiary bereft of remedy - Whether trustee ought to be ordered to pay half the purchase price obtained to beneficiary
Takako Sakao v. Ng Pek Yuen & Anor (No 2)
(Richard Malanjum CJ (Sabah & Sarawak), Zulkefli Makinudin & Gopal Sri Ram FCJJ) [2010] 1 CLJ 419 [FC]

Resulting trust - Circumstances when such a trust would arise - Primary function of court where a resulting trust is asserted - Whether court should begin by resorting to presumptions - Whether court should first meticulously examine the facts to objectively ascertain true intention of the parties
Takako Sakao v. Ng Pek Yuen & Anor
(Richard Malanjum CJ (Sabah & Sarawak), Zulkefli Makinudin & Gopal Sri Ram FCJJ) [2010] 1 CLJ 381 [FC]

WORDS AND PHRASES

'created in favour of any person or body as "trustee"' - National Land Code, s. 433B - Whether such words referred to constructive trusts - Whether such words referred to express trusts registered under s. 344 of the National Land Code
Takako Sakao v. Ng Pek Yuen & Anor
(Richard Malanjum CJ (Sabah & Sarawak), Zulkefli Makinudin & Gopal Sri Ram FCJJ) [2010] 1 CLJ 381 [FC]

^^

CASE OF THE WEEK

RE MOHD ZUHRI MOHD IDRIS; EX P BUMIPUTRA-COMMERCE BANK BHD

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