Bulletin_05

CLJ Bulletin, Issue 2012, Vol 5

3 February 2012

http://www.cljlaw.com

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New This Week	1. Case Of The Week
	2. Latest Cases
	a) Legal Network Series
	b) CLJ Volume 1 (Part 3) 2012
	3. Articles
	a) Legal Network Series Articles
	4. Legislation Highlights

CASE OF THE WEEK

LEMBAGA KUMPULAN WANG SIMPANAN PEKERJA v. AZIMUDDIN AB GHANI & ORS

COMPANY LAW: Directors - Personal liability - Whether directors of company jointly and severally liable for EPF contributions due and payable - Company under scheme of rearrangement under s. 176(1) of Companies Act 1965 - Whether s. 46 of Employees Provident Fund Act 1991 unconstitutional

PROVIDENT FUND: Arrears of contribution - Recovery of arrears of EPF contributions - Whether directors of company jointly and severally liable for EPF contributions due and payable - Company under scheme of rearrangement under s. 176(1) of Companies Act 1965 - Whether EPF officer concerned duly authorised to certify amount outstanding and to commence action - Employees Provident Fund Act 1991, ss. 46 & 64

PROVIDENT FUND: Liability of employer - Directors of company - Whether directors of company jointly and severally liable for EPF contributions due and payable - Company under scheme of rearrangement under s. 176(1) of Companies Act 1965 - Whether s. 46 of Employees Provident Fund Act 1991 unconstitutional

2. Latest Cases

a) Legal Network Series

CITATION TITLE SUBJECT

[2009] 1 LNS 1320 [HC] CIMB Bank Berhad v. Goh Tai Pak & Anor

CIVIL PROCEDURE: Limitation of action - Recovery of loan amount under term loan and overdraft facility secured by mortgage - Whether plaintiff's action against 2^nd defendant time barred pursuant to s. 6 of the Limitation Act 1953 - Whether s. 21 of the Limitation Act applicable - Whether action of the plaintiff statute-barred

EVIDENCE: Without prejudice communications - Admissibility - Whether plaintiff estopped from initiating action against 2^nd defendant based on 2^nd defendant's letter to the plaintiff dated 23 November 2001 - Letter issued during negotiation for settlement and labeled "without prejudice" - Whether letter inadmissible in evidence

EVIDENCE: Conclusive evidence clause - 2 statements of account marked P.9 and P.10 to prove amount outstanding - Discrepancy between balance amounts outstanding as stated on first and second last pages of P.10 - Whether manifest error on both P.9 and P.10 - Whether P.9 and P.10 separate documents - Whether manifest error confined to P.10 and did not vitiate P.9 - Whether plaintiff succeeded in proving its claim against 2^nd defendant

[2009] 1 LNS 1327 [HC] PP v. Sanggaran Sugumaran

CRIMINAL LAW: Dangerous Drugs Act 1952 - s. 39B(1)(a) - Trafficking in dangerous drugs - Accused arrested driving car containing drugs - Custody and control of drugs - Presumption of possession - Whether prosecution able to prove possession of dangerous drugs by accused - Weight of drugs - Whether accused a passive carrier or carried said drugs for purpose of trafficking to other persons

CRIMINAL PROCEDURE: Prosecution - Prosecution's case - Prima facie case - Ingredients of offence - Whether prosecution had made out a prima facie case against accused

CRIMINAL PROCEDURE: Defence - Calling for defence of accused - Accused maintaining he was an innocent carrier and that drugs planted in car - Evidence adduced of accused's male friend getting into and sitting in car - Whether presumption of possession under s. 37(d) of the Dangerous Drugs Act 1952 rebutted - Whether a reasonable doubt raised as to accused's guilt

CRIMINAL PROCEDURE: Defence - Court, duty of - Close of case for defence - Whether failure by judge to indicate whether the presumption under s. 37(d) or s. 37(da) of the Dangerous Drugs Act 1952 had been invoked - Whether any duty imposed on Court to inform parties which presumption was relied upon when calling for defence

EVIDENCE: Statement - Witness not called - Application by prosecution to admit statement of witness who could not be traced - Efforts to trace witness made at eleventh hour - No steps taken to advertise in local newspapers in order to trace witness - Whether efforts made by police and prosecution sufficient to secure attendance of witness in Court - Evidence Act 1950, s. 32(1)(i)

[2009] 1 LNS 1334 [HC] Equitas Limited v. Allianz General Insurance Company (Malaysia) Berhad

ARBITRATION: Enforcement - Foreign award - Award made in the United Kingdom against Malaysian British Assurance Berhad now known as Allianz General Insurance Malaysia Berhad (AGIM) - All rights and liabilities of AGIM under the general insurance business transferred and vested in defendant - Award not in name of defendant - Whether amendment to the name in Award should have been done in the United Kingdom - Whether Arbitration Act 2005, s. 38 applicable - Defendant not given proper opportunity to arbitrate matter in the United Kingdom - Whether plaintiff's conduct a blatant abuse of rules of natural justice - Whether plaintiff's application should be allowed

[2011] 1 LNS 36 [HC] Stable-Win Sdn Bhd v. Soon Lee Huat Palm Oil Mill Sdn Bhd

CONTRACT: Frustration - Lease - Lease Agreement becoming impossible and or unlawful to perform for want of a licence by the defendant - Whether Lease Agreement had become frustrated - Whether Lease Agreement also void by virtue of the Contracts Act 1950, s. 57(2)

CONTRACT: Mistake - Mistake of fact - Parties under the misapprehension that plaintiff could retain its licence whilst defendant was required to apply and obtain a licence from the Malaysia Palm Oil Board in order to operate the Mill - Whether there was a mutual mistake of fact

CONTRACT: Illegality - Lease Agreement providing for an object forbidden by the Malaysia Palm Oil Board Act and the Regulations - Whether Lease Agreement void for illegality under the Contracts Act 1950, s. 24

[2011] 1 LNS 123 [HC] Lim Yoi Joo @ Lim Oy Joo v. MB Industries Sdn Bhd

COMPANIES AND CORPORATIONS: Directors - Declaration sought that plaintiff had ceased to be a director of defendant - Plaintiff not given any notice of meeting or proposal to re-elect him and never offered himself for re-election nor consented to be re-elected - No formal complaint lodged with Suruhanjaya Syarikat Malaysia (SSM) by plaintiff to investigate case - Plaintiff a director as per SSM's record - Defendant having less than 2 directors if application allowed - Whether plaintiff should be granted declaration sought

CIVIL PROCEDURE: Parties - Non-joinder of party - Plaintiff's application seeking directions from court to make relevant and necessary parties as defendants in action - Serious allegations made by plaintiff against previous directors and/or shareholders of defendant without naming them as parties - Objections by SSM - Whether a writ action more appropriate mode

CITATION	TITLE	SUBJECT
[2009] 1 LNS 1320 [HC]	CIMB Bank Berhad v. Goh Tai Pak & Anor	CIVIL PROCEDURE: Limitation of action - Recovery of loan amount under term loan and overdraft facility secured by mortgage - Whether plaintiff's action against 2^nd defendant time barred pursuant to s. 6 of the Limitation Act 1953 - Whether s. 21 of the Limitation Act applicable - Whether action of the plaintiff statute-barred EVIDENCE: Without prejudice communications - Admissibility - Whether plaintiff estopped from initiating action against 2^nd defendant based on 2^nd defendant's letter to the plaintiff dated 23 November 2001 - Letter issued during negotiation for settlement and labeled "without prejudice" - Whether letter inadmissible in evidence EVIDENCE: Conclusive evidence clause - 2 statements of account marked P.9 and P.10 to prove amount outstanding - Discrepancy between balance amounts outstanding as stated on first and second last pages of P.10 - Whether manifest error on both P.9 and P.10 - Whether P.9 and P.10 separate documents - Whether manifest error confined to P.10 and did not vitiate P.9 - Whether plaintiff succeeded in proving its claim against 2^nd defendant
[2009] 1 LNS 1327 [HC]	PP v. Sanggaran Sugumaran	CRIMINAL LAW: Dangerous Drugs Act 1952 - s. 39B(1)(a) - Trafficking in dangerous drugs - Accused arrested driving car containing drugs - Custody and control of drugs - Presumption of possession - Whether prosecution able to prove possession of dangerous drugs by accused - Weight of drugs - Whether accused a passive carrier or carried said drugs for purpose of trafficking to other persons CRIMINAL PROCEDURE: Prosecution - Prosecution's case - Prima facie case - Ingredients of offence - Whether prosecution had made out a prima facie case against accused CRIMINAL PROCEDURE: Defence - Calling for defence of accused - Accused maintaining he was an innocent carrier and that drugs planted in car - Evidence adduced of accused's male friend getting into and sitting in car - Whether presumption of possession under s. 37(d) of the Dangerous Drugs Act 1952 rebutted - Whether a reasonable doubt raised as to accused's guilt CRIMINAL PROCEDURE: Defence - Court, duty of - Close of case for defence - Whether failure by judge to indicate whether the presumption under s. 37(d) or s. 37(da) of the Dangerous Drugs Act 1952 had been invoked - Whether any duty imposed on Court to inform parties which presumption was relied upon when calling for defence EVIDENCE: Statement - Witness not called - Application by prosecution to admit statement of witness who could not be traced - Efforts to trace witness made at eleventh hour - No steps taken to advertise in local newspapers in order to trace witness - Whether efforts made by police and prosecution sufficient to secure attendance of witness in Court - Evidence Act 1950, s. 32(1)(i)
[2009] 1 LNS 1334 [HC]	Equitas Limited v. Allianz General Insurance Company (Malaysia) Berhad	*ARBITRATION:* Enforcement - Foreign award - Award made in the United Kingdom against Malaysian British Assurance Berhad now known as Allianz General Insurance Malaysia Berhad (AGIM) - All rights and liabilities of AGIM under the general insurance business transferred and vested in defendant - Award not in name of defendant - Whether amendment to the name in Award should have been done in the United Kingdom - Whether Arbitration Act 2005, s. 38 applicable - Defendant not given proper opportunity to arbitrate matter in the United Kingdom - Whether plaintiff's conduct a blatant abuse of rules of natural justice - Whether plaintiff's application should be allowed
[2011] 1 LNS 36 [HC]	Stable-Win Sdn Bhd v. Soon Lee Huat Palm Oil Mill Sdn Bhd	CONTRACT: Frustration - Lease - Lease Agreement becoming impossible and or unlawful to perform for want of a licence by the defendant - Whether Lease Agreement had become frustrated - Whether Lease Agreement also void by virtue of the Contracts Act 1950, s. 57(2) CONTRACT: Mistake - Mistake of fact - Parties under the misapprehension that plaintiff could retain its licence whilst defendant was required to apply and obtain a licence from the Malaysia Palm Oil Board in order to operate the Mill - Whether there was a mutual mistake of fact CONTRACT: Illegality - Lease Agreement providing for an object forbidden by the Malaysia Palm Oil Board Act and the Regulations - Whether Lease Agreement void for illegality under the Contracts Act 1950, s. 24
[2011] 1 LNS 123 [HC]	Lim Yoi Joo @ Lim Oy Joo v. MB Industries Sdn Bhd	COMPANIES AND CORPORATIONS: Directors - Declaration sought that plaintiff had ceased to be a director of defendant - Plaintiff not given any notice of meeting or proposal to re-elect him and never offered himself for re-election nor consented to be re-elected - No formal complaint lodged with Suruhanjaya Syarikat Malaysia (SSM) by plaintiff to investigate case - Plaintiff a director as per SSM's record - Defendant having less than 2 directors if application allowed - Whether plaintiff should be granted declaration sought CIVIL PROCEDURE: Parties - Non-joinder of party - Plaintiff's application seeking directions from court to make relevant and necessary parties as defendants in action - Serious allegations made by plaintiff against previous directors and/or shareholders of defendant without naming them as parties - Objections by SSM - Whether a writ action more appropriate mode

b. CLJ Volume 1 (Part 3) 2012

COURT

FEDERAL COURT

Muhd Zulkifli Abd Ghani v. PP
Richard Malanjum CJ (Sabah & Sarawak), Hashim Yusoff, Abdull Hamid Embong FCJJ
(Criminal Law - Dangerous Drugs Act 1952 - Trafficking - Whether Court of Appeal misdirected itself - Balance of convenience) [2012] 1 CLJ 293 [FC]

COURT OF APPEAL

PP v. Dato' Suhaili Abdul Rahman
Raus Sharif FCJ, Sulong Matjeraie, Mohamed Apandi Ali JJCA
(Bankruptcy - Fraudulent debtor - Whether respondent informed bank that he was an undischarged bankrupt before being a guarantor - Receiving and adjudication order) [2012] 1 CLJ 301 [CA]

HIGH COURT

Abdul Rahman Suhaimi v. PP
Choong Siew Khim JC
(Criminal Law - Anti-Corruption Act 1997 - Section 10(a)(bb) - Gratification - Whether complainant an accomplice) [2012] 1 CLJ 310 [HC]

Open Type Joint Stock Company Efirnoye ("EFKO") v. Alfa Trading Ltd
Nallini Pathmanathan J
(Arbitration - Arbitration clause - Construction of - Arbitral procedure in contract not followed - Arbitration Act 2005, ss. 38 & 39) [2012] 1 CLJ 323 [HC]

Pendor Anger & Ors v. Ketua Pengarah Jabatan Alam Sekitar & Ors
Alizatul Khair Osman J
(Administrative Law; Limitation - Judicial review - Whether application time-barred under s. 2 Public Authorities Protection Act 1948) [2012] 1 CLJ 346 [HC]

PP v. Azilah Hadri & Ors
Mohd Zaki Yasin J
(Criminal Law; Criminal Procedure; Evidence - Penal Code - Section 302 - Deceased murdered by police officers - Prima facie case - Voluntariness of confession - Inducement and threat) [2012] 1 CLJ 358 [HC]

SUBJECT INDEX

ADMINISTRATIVE LAW

Judicial review - Application for leave - Applicants seeking to quash decision of Director General of Environmental Quality approving water transfer project - Limitation - Whether application filed out of time - Decision made pursuant to statutory provision of s. 34A(3) Environmental Quality Act 1974 - Whether application time-barred under s. 2 Public Authorities Protection Act 1948 (PAPA) - Whether PAPA as general law did not override specific law provided under O. 53 RHC
Pendor Anger & Ors v. Ketua Pengarah Jabatan Alam Sekitar & Ors
(Alizatul Khair Osman J) [2012] 1 CLJ 346 [HC]

ARBITRATION

Arbitration clause - Construction of - Plaintiff sought to register and enforce Russian arbitration award against Malaysian defendant - Defendant alleged arbitral procedure in contract not followed - Arbitration clause enabled defendant to file claim in Ukraine tribunal and plaintiff to file in Russian tribunal - Defendant first to file for arbitration - Whether this ousted plaintiff's right to file claim in Moscow tribunal - Whether subject matter before each tribunal different - Whether against public policy to enforce award - Arbitration Act 2005, ss. 38 & 39
Open Type Joint Stock Company Efirnoye ("Efko") v. Alfa Trading Ltd
(Nallini Pathmanathan J) [2012] 1 CLJ 323 [HC]

BANKRUPTCY

Fraudulent debtor - Punishment - Guarantor for loan facility while being an undischarged bankrupt - Bankruptcy order - Annulment of - Whether annulment of bankruptcy order puts respondent in position as if there was no adjudication - Effect of - Whether respondent informed bank that he was an undischarged bankrupt before being a guarantor - Bankruptcy Act 1967, s. 109(1)(m)(ii)
PP v. Dato' Suhaili Abdul Rahman
(Raus Sharif FCJ, Sulong Matjeraie, Mohamed Apandi Ali JJCA) [2012] 1 CLJ 301 [CA]

Receiving and adjudication order - Rescission and annulment - Guarantor for loan facility while being an undischarged bankrupt - Effect of - Whether annulment of bankruptcy order puts respondent in position as if there was no adjudication - Whether annulment of bankruptcy order had effect of wiping out bankruptcy altogether - Whether respondent informed bank that he was an undischarged bankrupt before being a guarantor - Bankruptcy Act 1967, s. 109(1)(m)(ii)
PP v. Dato' Suhaili Abdul Rahman
(Raus Sharif FCJ, Sulong Matjeraie, Mohamed Apandi Ali JJCA) [2012] 1 CLJ 301 [CA]

CRIMINAL LAW

Abetment - Abetting another to commit murder - Abettor asking police officers for protection against blackmail, harassment and threats by deceased - Deceased murdered by police officers - No direct or circumstantial evidence of abettor's participation in offence - No prima facie case against abettor - Abettor acquitted and discharged - Penal Code, ss. 109 & 302
PP v. Azilah Hadri & Ors
(Mohd Zaki Yasin J) [2012] 1 CLJ 358 [HC]

Anti-Corruption Act 1997 - Section 10(a)(bb) - Offence of accepting gratification - Appealing against conviction and sentence on three charges - Whether request or solicitation initiated from accused - Whether complainant an accomplice - Whether inclusion of s. 34 Penal Code in first charge occasioned miscarriage of justice - Whether two years' imprisonment for each charge ordered to run consecutively should be concurrent
Abdul Rahman Suhaimi v. PP
(Choong Siew Khim JC) [2012] 1 CLJ 310 [HC]

Dangerous Drugs Act 1952 - Trafficking in 22,935 grams of cannabis - Conviction and sentence - Appeal against - Factors to consider - Whether Court of Appeal misdirected itself - Whether balance of convenience grossly against acquittal
Muhd Zulkifli Abd Ghani v. PP
(Richard Malanjum CJ (Sabah & Sarawak), Hashim Yusoff, Abdull Hamid Embong FCJJ) [2012] 1 CLJ 293 [FC]

Penal Code - Section 302 - Murder - Deceased killed due to blast related injuries - Police officers charged with murder - Whether purported confession by accused admissible - Whether information given by accused leading to crime spot admissible - Whether information given by accused leading to recovery of deceased jewellery admissible - Whether prima facie case made out against accused - Defence irreconcilable and ambivalent - Prosecution's case proven beyond reasonable doubt
PP v. Azilah Hadri & Ors
(Mohd Zaki Yasin J) [2012] 1 CLJ 358 [HC]

CRIMINAL PROCEDURE

Trial - Confession - Admissibility - Confession made to person in authority - Confession by accused to police officer - Onus on prosecution to prove voluntariness of confession - Confession made as a result of inducement and threat - Confession involuntarily made and inadmissible - Evidence Act 1950, s. 24
PP v. Azilah Hadri & Ors
(Mohd Zaki Yasin J) [2012] 1 CLJ 358 [HC]

EVIDENCE

Confession - Admissibility of confession - Confession made to person in authority - Confession by accused to police officer - Onus on prosecution to prove voluntariness of confession - Confession made as a result of inducement and threat - Confession involuntarily made and inadmissible - Evidence Act 1950, s. 24
PP v. Azilah Hadri & Ors
(Mohd Zaki Yasin J) [2012] 1 CLJ 358 [HC]

Information leading to fact discovered - Evidence Act 1950, s. 27 - Admissibility and proof - Statement made by accused to police - Statements leading police to place where murder was committed and recovery of jewellery belonging to deceased - Whether statements admissible - Whether statements voluntarily given - Whether police had prior knowledge of place where murder was committed - Whether jewellery discovered as a consequence of information supplied
PP v. Azilah Hadri & Ors
(Mohd Zaki Yasin J) [2012] 1 CLJ 358 [HC]

LIMITATION

Public Authorities Protection Act 1948 - Section 2(a) - Application for judicial review - Whether time-barred
Pendor Anger & Ors v. Ketua Pengarah Jabatan Alam Sekitar & Ors
(Alizatul Khair Osman J) [2012] 1 CLJ 346 [HC]

3. Articles

a) Legal Network Series Articles

1. The Future Of The Trade Union Movement In Malaysia ^{[Read
excerpt]}
By Nagiah Ramasamy*

2. Has Mediation Had Its Day?* ^{[Read
excerpt]}
By Lord Neuberger Of Abbotsbury MR

4. Legislation Highlights

a) Principal Acts

NUMBER
TITLE

DATE COMING INTO FORCE

REPEALING

ACT 731 Money Services Business Act 2011 1 December 2011 [PU(B) 590/2011] ACT 577

ACT 732 National Wages Consultative Council Act 2011 23 September 2011 [PU(B) 507/2011] - Nil -

ACT 733 Kampong Bharu Development Corporation Act 2011 Not Yet In Force - Nil -

ACT 734 Restricted Residence (Repeal) Act 2011 31 December 2011 ACT 377

ACT 735 Banishment (Repeal) Act 2011 31 December 2011 ACT 79

b) Amending Acts

NUMBER
TITLE

DATE COMING INTO FORCE

PRINCIPAL / AMENDING ACT NO

ACT A1408 Supply Act 2012 31 December 2011 -

ACT A1409 Pensions (Amendment) Act 2011 1 January 2012 ACT 227

ACT A1410 Statutory And Local Authorities Pensions (Amendment) Act 2011 1 January 2012 ACT 239

ACT A1411 Pensions Adjustment (Amendment) Act 2011 1 January 2012 ACT 238

ACT A1412 Judges Remuneration (Amendment) (No 2) Act 2011 1 January 2012 ACT 45

c) PU(A)

NUMBER TITLE DATE COMING INTO FORCE
PRINCIPAL / AMENDING ACT NO

PU(A) 017/2012 National Speed Limit (Temporary Cessation) Order 2012 16 January 2012 ACT 333

PU(A) 018/2012 Road Traffic (Prohibition On Driving Of Goods Vehicles) Rules 2012 18 January 2012 ACT 333

PU(A) 019/2012 Control Of Supplies (Controlled Articles) Order 2012 18 January 2012 ACT 122

PU(A) 020/2012 Price Control And Anti-Profiteering (Determination Of Maximum Price And Price Marking Of Price-Controlled Goods) Order 2012 18 January 2012 ACT 723

PU(A) 037/2012 Industrial Designs (Amendment) Regulations 2012 Not Yet In Force ACT 552

d) PU(B)

NUMBER TITLE DATE COMING INTO FORCE
PRINCIPAL / AMENDING ACT NO

PU(B) 019/2012 Appointment Of Deputy Public Prosecutor Of The Criminal Procedure Code 12 January 2012 ACT 593

PU(B) 020/2012 Appointment Of Deputy Public Prosecutors Of The Criminal Procedure Code 12 January 2012 ACT 593

PU(B) 021/2012 Notice To Third Parties Of The Anti-Money Laundering And Anti-Terrorism Financing Act 2001 17 January 2012 ACT 613

PU(B) 022/2012 Notice Regarding The Supplementary Electoral Roll For The Second Quarter Of The Year 2011 That Has Been Certified 17 January 2012 ACT 19

PU(B) 023/2012 Notice Regarding The Supplementary Electoral Roll For The Third Quarter Of The Year 2011 That Has Been Certified 18 January 2012 ACT 19

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NUMBER	TITLE	DATE COMING INTO FORCE	REPEALING
ACT 731	Money Services Business Act 2011	1 December 2011 [PU(B) 590/2011]	ACT 577
ACT 732	National Wages Consultative Council Act 2011	23 September 2011 [PU(B) 507/2011]	- Nil -
ACT 733	Kampong Bharu Development Corporation Act 2011	Not Yet In Force	- Nil -
ACT 734	Restricted Residence (Repeal) Act 2011	31 December 2011	ACT 377
ACT 735	Banishment (Repeal) Act 2011	31 December 2011	ACT 79