Legal Network Series

[2010] 1 LNS 1171	IZZAP LIMITED v. SANMARU OVERSEAS MARKETING SDN BHD & ANOR	CIVIL PROCEDURE: Injunction - Interim injunction - Application for - To restrain 1st defendant from entering into the proposed arrangement with regard to Indomie Trade Marks - Whether there was a serious question to be tried - Whether damages not an adequate remedy - Whether plaintiff's rights and interests would be affected adversely if status quo not maintained - Whether balance of convenience lay in favour of granting plaintiff interim injunction sought for
[2010] 1 LNS 1413	PP v. GUNUS SAGENA	CRIMINAL LAW: Penal Code - s. 302 - Murder - Taunts by deceased that accused committed bestiality over period of five days and no less than 10 times - Whether attack spontaneous with no element of premeditation or revenge present - Whether accused deprived of his power of self-control by victim's taunts - Whether accused succeeded in proving a defence of grave and sudden provocation - Whether charge should be reduced to culpable homicide not amounting to murder
[2010] 1 LNS 1414	TONY LIEW FATT LIAN v. DATUK AMAR HJ ABDUL AZIZ DATO HJ HUSSAIN & ANOR	PUBLIC LAW: Public authorities - Statutory body - Decision in Sim Kwang Teck v. Datuk Amar Hj Abdul Aziz bin Dato' Haji Husain & Anor - Parties agreed to be bound by decision - Plaintiff a permanent and pensionable employee of 2nd defendant - Whether Sim Kwang Teck's case applicable - Whether public sector employee like plaintiff must go by way of judicial review if he challenged his dismissal on grounds of breach of natural justice
[2010] 1 LNS 1807	PP v. ZULAZMI AHMAD	EVIDENCE: Information leading to fact discovered - Admissibility of statement - Whether discovery statement admissible under the Evidence Act 1950, s. 27 - Whether police already had the means of getting the fact or police already had information of the raw opium inside the Volvo car before it was detained and examined by them CRIMINAL LAW: Dangerous Drugs Act 1952 - s. 39B(1)(a) - Trafficking in dangerous drugs - Whether prosecution established a prima facie case against accused as charged
[2010] LNS 1 1857	CHEMPRO TECHNOLOGY (M) SDN BHD v. WEE ENG HOCK & ORS	TRUSTS AND TRUSTEES: Constructive trust - 1st defendant denied holding 250,000 ordinary Shares for plaintiff as beneficiary - Shares registered in 1st defendant's name although he did not pay for them - Whether unconscionable to allow 1st defendant to be invested with ownership of the shares in his name - Whether a constructive trust in favour of plaintiff could be implied

CLJ 2012 Volume 9 (Part 7)

COURT

FEDERAL COURT

Lee Yoke Yam v. Chin Keat Seng
Arifin Zakaria CJ, Abdull Hamid Embong, Hasan Lah, Zainun Ali, Sulong Matjeraie FCJJ
(Tort - Defamation - Absolute privilege - Police report - Whether public interest taken into account - Criminal Procedure Code, s. 107) [2012] 9 CLJ 833 [FC]

Sia Pang Liong v. PP
Arifin Zakaria CJ (Malaya), Mohd Ghazali Yusoff FCJ, Raus Sharif PCA
(Criminal Law; Criminal Procedure - Doubt in identity of drug exhibits - Failure to call material witness - Whether conviction unsafe) [2012] 9 CLJ 848 [FC]

COURT OF APPEAL

Menteri Tenaga, Air Dan Komunikasi & Anor v. Malaysian Trade Union Congress & Ors
Zaleha Zahari, Abu Samah Nordin, Hishamudin Mohd Yunus JJCA
(Civil Procedure - Locus standi - Judicial review - Whether documents protected under the Official Secrets Act 1972) [2012] 9 CLJ 858 [CA]

Vasanthi Rajamanikam v. Kalaiselvi Perumal
Low Hop Bing, Zaharah Ibrahim, Aziah Ali JJCA
(Civil Procedure - Judgment - Admission - Affidavits - Filing out of time - Rules of the High Court 1980, O. 27) [2012] 9 CLJ 912 [CA]

HIGH COURT

Bina Puri Sdn Bhd v. EP Engineering Sdn Bhd & Another Case
Mohamad Ariff Yusof J
(Contract - Breach - Agreement - Settlement agreement - Allegation of a fundamental breach) [2012] 9 CLJ 920 [HC]

RHB Bank Bhd v. Isa Abu Bakar & Anor
Umi Kalthum Abd Majid J
(Contract; Tort - Employment contract - Duties of employee - Conspiracy to defraud - Whether breach of fiduciary duty) [2012] 9 CLJ 950 [HC]

SUBJECT INDEX

CIVIL PROCEDURE

Affidavits - Affidavit-in-reply - Filing out of time - Whether assertion deemed admitted - Ng Hee Thoong & Anor v. Public Bank Bhd
Vasanthi Rajamanikam v. Kalaiselvi Perumal
(Low Hop Bing, Zaharah Ibrahim, Aziah Ali JJCA) [2012] 9 CLJ 912 [CA]

Judgment - Admission - Application for - Misappropriation of funds - Whether admission of facts contained in written confession and settlement agreement falls within ambit of O. 27 r. 3 Rules of the High Court 1980 - Whether application challenged
Vasanthi Rajamanikam v. Kalaiselvi Perumal
(Low Hop Bing, Zaharah Ibrahim, Aziah Ali JJCA) [2012] 9 CLJ 912 [CA]

Locus standi - Judicial review - Refusal of Minister to make public water concession agreement and related audit report ('documents') - Whether applicants had locus standi to apply - Whether applicants adversely affected by Minister's decision - Whether principle of legitimate expectation and fiduciary relationship between government and citizens arose - Whether documents protected under the Official Secrets Act 1972 - Whether disclosure detrimental to national security or public interest
Menteri Tenaga, Air Dan Komunikasi & Anor v. Malaysian Trade Union Congress & Ors
(Zaleha Zahari, Abu Samah Nordin, Hishamudin Mohd Yunus JJCA) [2012] 9 CLJ 858 [CA]

CONTRACT

Breach - Agreement - Settlement agreement - Allegation of a fundamental breach - Whether defendant bound to pay arbitration fees and costs - Whether plaintiff failed to hand over promised documents - Whether requested documents in plaintiff's possession - Whether plaintiff's failure to provide documents amounted to total failure of consideration
Bina Puri Sdn Bhd v. EP Engineering Sdn Bhd & Another Case
(Mohamad Ariff Yusof J) [2012] 9 CLJ 920 [HC]

Employment contract - Duties of employee - Duty of care in discharging duties - Whether monies misappropriated - Whether breach of duty of fidelity and good faith - Whether breach of fiduciary duty
RHB Bank Bhd v. Isa Abu Bakar & Anor
(Umi Kalthum Abd Majid J) [2012] 9 CLJ 950 [HC]

Settlement - Settlement agreement - Whether breached - Defendant failing to pay monies due under settlement agreement - Whether defendant's obligation to pay subject to plaintiff's obligation to disclose and provide necessary documents - Whether requested documents in plaintiff's possession - Whether plaintiff's failure to provide documents amounted to total failure of consideration - Whether plaintiff's claim allowed
Bina Puri Sdn Bhd v. EP Engineering Sdn Bhd & Another Case
(Mohamad Ariff Yusof J) [2012] 9 CLJ 920 [HC]

CRIMINAL LAW

Dangerous Drugs Act 1952 - Section 39B(1)(a) - Trafficking in 2600.7 grams of heroin - Conviction and sentence - Appeal against - Doubt in identity of drug exhibits - Whether there was a break in chain of evidence as to movement of exhibits - Whether drug exhibits analysed by chemist the same drug exhibits recovered from appellant - Failure to call material witness - Whether conviction unsafe
Sia Pang Liong v. PP
(Arifin Zakaria CJ (Malaya), Mohd Ghazali Yusoff FCJ, Raus Sharif PCA) [2012] 9 CLJ 848 [FC]

CRIMINAL PROCEDURE

Appeal - Conviction and sentence, against - Trafficking in 2600.7 grams of heroin - Doubt in identity of drug exhibits - Whether there was a break in chain of evidence as to movement of exhibits - Whether drug exhibits analysed by chemist the same drug exhibits recovered from appellant - Failure to call material witness - Whether conviction unsafe
Sia Pang Liong v. PP
(Arifin Zakaria CJ (Malaya), Mohd Ghazali Yusoff FCJ, Raus Sharif PCA) [2012] 9 CLJ 848 [FC]

TORT

Conspiracy - Conspiracy to defraud - Misappropriation of monies - Whether conspiracy proven
RHB Bank Bhd v. Isa Abu Bakar & Anor
(Umi Kalthum Abd Majid J) [2012] 9 CLJ 950 [HC]

Defamation - Absolute privilege - Police report - Whether statements made in police report protected by defence of absolute privilege - Whether public interest taken into account - Criminal Procedure Code, s. 107
Lee Yoke Yam v. Chin Keat Seng
(Arifin Zakaria CJ, Abdull Hamid Embong, Hasan Lah, Zainun Ali, Sulong Matjeraie FCJJ) [2012] 9 CLJ 833 [FC]

Negligence - Duty of care - Duty owed by employees - Duty of fidelity and good faith - Whether monies misappropriated - Whether bank manager liable in allowing cashier to wrongfully remove physical cash - Whether breach of fiduciary duty
RHB Bank Bhd v. Isa Abu Bakar & Anor
(Umi Kalthum Abd Majid J) [2012] 9 CLJ 950 [HC]

CLJ 2012 Volume 9 (Part 8)

COURT

FEDERAL COURT

Majlis Perbandaran Subang Jaya v. The Alice Smith Schools Association
James Foong, Raus Sharif, Heliliah Mohd Yusof FCJJ
(Local Government - Rates - Annual value - Rate of assessment - Whether rate of assessment differed) [2012] 9 CLJ 977 [FC]

Malaysian Newsprint Industries Sdn Bhd v. Bechtel International Inc & Anor
Raus Sharif PCA, Abdull Hamid Embong, Suriyadi Halim Omar, Hasan Lah, Zaleha Zahari FCJJ
(Arbitration; Civil Procedure; Contract - Agreement - Construction - Arbitration clause) [2012] 9 CLJ 993 [FC]

COURT OF APPEAL

CIMB Bank Bhd v. Gan Teow Hooi & Ors
Zainun Ali, Ramly Ali, Kang Hwee Gee JJCA
(Contract - Loan - Default of repayment of loan - Sale and purchase of land to build house) [2012] 9 CLJ 1003 [CA]

Malayan Banking Bhd v. Neway Development Sdn Bhd & Ors
Raus Sharif PCA, Azhar Ma'ah, Mohamed Apandi Ali JJCA
(Contract; Land Law - Dealings in land - Native land - Sale and purchase of native land by non-native) [2012] 9 CLJ 1014 [CA]

HIGH COURT

Kasayah Dhalin Hussein v. PP
Kamardin Hashim J
(Civil Procedure - Jurisdiction - High Court - Firearms (Increased Penalties) Act 1971) [2012] 9 CLJ 1029 [HC]

MBf Finance Bhd v. Muruges Kuppusamy
VT Singham J
(Banking; Land Law - Default in repayment - Claim for interest and late payment interest) [2012] 9 CLJ 1045 [HC]

Transmile Group Bhd & Anor v. Malaysian Trustee Bhd & Ors
Nallini Pathmanathan J
(Companies And Corporations - Schemes of arrangement - Unsecured creditors) [2012] 9 CLJ 1071 [HC]

SUBJECT INDEX

ARBITRATION

Agreement - Construction - Arbitration clause - Whether contract between parties subject to arbitration clause - Whether there was agreement in writing in pleaded contract to refer dispute to arbitration - Whether courts erred in granting stay of proceedings - Arbitration Act 1952, ss. 2, 6
Malaysian Newsprint Industries Sdn Bhd v. Bechtel International Inc & Anor
(Raus Sharif PCA, Abdull Hamid Embong, Suriyadi Halim Omar, Hasan Lah, Zaleha Zahari FCJJ) [2012] 9 CLJ 993 [FC]

BANKING

Banks and banking business - Loan agreement - Default in repayment - Claim for interest and late payment interest - Delay in commencing foreclosure proceedings - Whether delay caused prejudice to defendant - Whether claim unfair and improper
MBf Finance Bhd v. Muruges Kuppusamy
(VT Singham J) [2012] 9 CLJ 1045 [HC]

CIVIL PROCEDURE

Jurisdiction - High Court - Somalian accused charged under Firearms (Increased Penalties) Act 1971 - Whether Malaysian court has jurisdiction to try accused of shooting at Malaysian navy personnel in high seas off Oman - Whether s. 22(1)(b)(iv) Courts of Judicature Act 1964 conferred jurisdiction on High Court - Whether certificate issued by Attorney General under s. 127A(1)(d) Criminal Procedure Code regularised jurisdiction conferred upon High Court
Kasayah Dhalin Hussein v. PP
(Kamardin Hashim J) [2012] 9 CLJ 1029 [HC]

Stay of proceedings - Appeal against - Whether granting of stay conditional upon existence of arbitration agreement - Whether contract between parties subject to arbitration clause - Whether there was agreement in writing in pleaded contract to refer dispute to arbitration - Whether courts erred in granting stay of proceedings - Arbitration Act 1952, ss. 2, 6
Malaysian Newsprint Industries Sdn Bhd v. Bechtel International Inc & Anor
(Raus Sharif PCA, Abdull Hamid Embong, Suriyadi Halim Omar, Hasan Lah, Zaleha Zahari FCJJ) [2012] 9 CLJ 993 [FC]

COMPANIES AND CORPORATIONS

Schemes of arrangement - Unsecured creditors - Whether better for court to wind up debtor than approve schemes of arrangement - Whether question one of commercial sensibility which scheme creditors were better positioned than court to decide - Whether schemes fair equitable and bona fide
Transmile Group Bhd & Anor v. Malaysian Trustee Bhd & Ors
(Nallini Pathmanathan J) [2012] 9 CLJ 1071 [HC]

CONTRACT

Agreement - Term loan agreement - Agreement in contravention of ss. 17(1) and 64(1) of Sabah Land Ordinance - Whether agreement tainted with illegality - Whether agreement void - Contracts Act 1950, ss. 2(g) & 24
Malayan Banking Bhd v. Neway Development Sdn Bhd & Ors
(Raus Sharif PCA, Azhar Ma'ah, Mohamed Apandi Ali JJCA) [2012] 9 CLJ 1014 [CA]

Construction - Agreement - Clauses in agreement - Whether contract between parties subject to arbitration clause - Whether there was agreement in writing in pleaded contract to refer dispute to arbitration - Whether courts erred in granting stay of proceedings - Arbitration Act 1952, ss. 2, 6
Malaysian Newsprint Industries Sdn Bhd v. Bechtel International Inc & Anor
(Raus Sharif PCA, Abdull Hamid Embong, Suriyadi Halim Omar, Hasan Lah, Zaleha Zahari FCJJ) [2012] 9 CLJ 993 [FC]

Loan - Default of repayment of loan - Sale and purchase of land to build house - Construction agreement - Execution of loan agreement - Investigation by Local Government and Housing Ministry on project - Vendor/contractor did not possess licence as housing developer - Whether sale and purchase agreement and construction agreement void ab initio
CIMB Bank Bhd v. Gan Teow Hooi & Ors
(Zainun Ali, Ramly Ali, Kang Hwee Gee JJCA) [2012] 9 CLJ 1003 [CA]

LAND LAW

Dealings in land - Native land - Sale and purchase of native land by non-native - Native held land in trust for non-native - Whether 'dealing' within s. 4 of Sabah Land Ordinance - Whether circumvention of s. 17(1) of Ordinance - Whether transaction illegal
Malayan Banking Bhd v. Neway Development Sdn Bhd & Ors
(Raus Sharif PCA, Azhar Ma'ah, Mohamed Apandi Ali JJCA) [2012] 9 CLJ 1014 [CA]

Dealings in land - Native land - Term loan granted to facilitate purchase of native land by non-native - Whether transaction contravened s. 17(1) of Sabah Land Ordinance - Whether loan agreement illegal and prohibited under Ordinance
Malayan Banking Bhd v. Neway Development Sdn Bhd & Ors
(Raus Sharif PCA, Azhar Ma'ah, Mohamed Apandi Ali JJCA) [2012] 9 CLJ 1014 [CA]

Sale of land - Auction - Delay in commencing foreclosure proceedings - Accumulated interest charges - Whether plaintiff mitigated losses
MBf Finance Bhd v. Muruges Kuppusamy
(VT Singham J) [2012] 9 CLJ 1045 [HC]

LOCAL GOVERNMENT

Rates - Annual value - Rate of assessment - Running of private school - Whether contractor's test appropriate method to be used - Whether comparison with buildings within proximity made - Whether valuation officer exercised due care and diligence in arriving at holding's market value - Whether different land use attracts different market value - Whether holding used for commercial purposes - Whether rate of assessment differed
Majlis Perbandaran Subang Jaya v. The Alice Smith Schools Association
(James Foong, Raus Sharif, Heliliah Mohd Yusof FCJJ) [2012] 9 CLJ 977 [FC]

CLJ 2013 Volume 1 (Part 1)

COURT

[SC India]

Shudhakar v. State Of Madhya Pradesh [2013] 1 CLJ 1 [SC India]

FEDERAL COURT

Andrew Lee Siew Ling v. United Overseas Bank (Malaysia) Bhd
Zulkefli Makinudin CJ (Malaya), Abdull Hamid Embong, Ahmad Maarop, Zaleha Zahari, Sulong Matjeraie FCJJ
(Banking; Statutory Interpretation) [2013] 1 CLJ 24 [FC]

Ong Teng For & Anor v. PP
Zulkefli Makinudin CJ (Malaya), Ahmad Maarop, Zaleha Zahari, Sulong Matjeraie FCJJ
(Criminal Law; Criminal Procedure) [2013] 1 CLJ 39 [FC]

COURT OF APPEAL

Joey Low Kok Joo v. AmG Insurance Bhd
Mohamed Apandi Ali, Linton Albert JJCA, Mah Weng Kwai J
(Civil Procedure) [2013] 1 CLJ 61 [CA]

Malaysian Assurance Alliance Bhd v. Comsa Properties Sdn Bhd
KN Segara, Syed Ahmad Helmy, Aziah Ali JJCA
(Constitutional Law; Jurisdiction) [2013] 1 CLJ 69 [CA]

Mohd Fadzil Ibrahim & Anor v. PP
KN Segara, Balia Yusof Wahi, Mohtarudin Baki JJCA
(Criminal Law; Criminal Procedure; Evidence) [2013] 1 CLJ 77 [CA]

Wong Keng Liang v. PP
Low Hop Bing, KN Segara, Azahar Mohamed JJCA
(Criminal Procedure; Jurisdiction) [2013] 1 CLJ 96 [CA]

HIGH COURT

Kerajaan Negeri Terengganu & Ors v. Dr Syed Azman Syed Ahmad Nawawi & Ors
Yeoh Wee Siam J
(Administrative Law; Civil Procedure; Legal Profession; Local Government; Tort) [2013] 1 CLJ 107 [HC]

Kerajaan Negeri Terengganu & Ors v. Dr Syed Azman Syed Ahmad Nawawi & Ors (No 2)
Yeoh Wee Siam J
(Civil Procedure; Tort) [2013] 1 CLJ 124 [HC]

Malayan Banking Bhd v. Doxport Technologies (M) Sdn Bhd & Ors
Lee Swee Seng JC
(Civil Procedure) [2013] 1 CLJ 137 [HC]

Shayo (M) Sdn Bhd v. Nurlieda Sidek & Ors
Harmindar Singh Dhaliwal J
(Land Law) [2013] 1 CLJ 153 [HC]

SUBJECT INDEX

ADMINISTRATIVE LAW

Statutory bodies - Legal status and capacity - Whether statutory body a public authority
Kerajaan Negeri Terengganu & Ors v. Dr Syed Azman Syed Ahmad Nawawi & Ors
(Yeoh Wee Siam J) [2013] 1 CLJ 107 [HC]

BANKING

Banks and banking business - Loan agreement - Principal borrower defaulted in settling loan amount - Claim against guarantor for interest on outstanding loan amount - Bankruptcy Act 1967, s. 8(2A) - Correct interpretation of - Whether acts as statutory clamp on secured creditors prohibiting them from claiming further interest - Whether merely limits secured creditor's right to continue to impose interest on amount outstanding vis a vis the bankrupt or wound up debtor - Whether applies to a guarantor giving indemnity - Whether guarantor 'debtor' envisaged in s. 8(1) Bankruptcy Act 1967 - Interpretation Acts 1948 & 1967, s. 17A
Andrew Lee Siew Ling v. United Overseas Bank (Malaysia) Bhd
(Zulkefli Makinudin CJ (Malaya), Abdull Hamid Embong, Ahmad Maarop, Zaleha Zahari, Sulong Matjeraie FCJJ) [2013] 1 CLJ 24 [FC]

Guarantee and indemnity - Loan agreement - Principal debtor defaulted in settling loan amount - Claim against guarantor for interest on outstanding loan amount - Bankruptcy Act 1967, s. 8(2A) - Correct interpretation of - Whether acts as statutory clamp on secured creditors prohibiting them from claiming further interest - Whether merely limits secured creditor's right to continue to impose interest on amount outstanding vis a vis the bankrupt or wound up debtor - Whether applies to a guarantor giving indemnity - Whether guarantor 'debtor' envisaged in s. 8(1) Bankruptcy Act 1967 - Interpretation Acts 1948 & 1967, s. 17A
Andrew Lee Siew Ling v. United Overseas Bank (Malaysia) Bhd
(Zulkefli Makinudin CJ (Malaya), Abdull Hamid Embong, Ahmad Maarop, Zaleha Zahari, Sulong Matjeraie FCJJ) [2013] 1 CLJ 24 [FC]

CIVIL PROCEDURE

Action - Capacity to sue - Defamation action - Whether Menteri Besar endowed with capacity to sue for defamation in his official capacity - Public interest considerations
Kerajaan Negeri Terengganu & Ors v. Dr Syed Azman Syed Ahmad Nawawi & Ors (No 2)
Yeoh Wee Siam J [2013] 1 CLJ 124 [HC]

Action - Capacity to sue - State Government - Defamation action - Whether State Government could maintain an action for defamation - The public interest
Kerajaan Negeri Terengganu & Ors v. Dr Syed Azman Syed Ahmad Nawawi & Ors
(Yeoh Wee Siam J) [2013] 1 CLJ 107 [HC]

Costs - Interest on costs - Judgment debt - Recovery action - Whether interest on costs pleaded - Whether interest can be given to fixed costs - Whether there is a difference between interest awarded on taxed costs and interest awarded on fixed costs - Whether costs awarded forms part of judgment debt - Whether appellant deprived from claiming interest
Joey Low Kok Joo v. AmG Insurance Bhd
(Mohamed Apandi Ali, Linton Albert JJCA, Mah Weng Kwai J) [2013] 1 CLJ 61 [CA]

Government proceedings - Liability for acts of public officers - Acts done in good faith when public officer carrying out duties imposed by law - Whether government vicariously liable
Kerajaan Negeri Terengganu & Ors v. Dr Syed Azman Syed Ahmad Nawawi & Ors (No 2)
Yeoh Wee Siam J [2013] 1 CLJ 124 [HC]

Judgment - Enforcement of judgment - Plaintiff bank granted judgment against defendant borrower and guarantors for defaulting on loan - 80% of plaintiff's loan to borrower to carry out project abroad guaranteed under special government scheme - Whether equity and good conscience demanded plaintiff seek payment of guaranteed sum first before enforcing judgment against defendants
Malayan Banking Bhd v. Doxport Technologies (M) Sdn Bhd & Ors
(Lee Swee Seng JC) [2013] 1 CLJ 137 [HC]

Jurisdiction - High Court - Inherent jurisdiction to hear preliminary issues
Kerajaan Negeri Terengganu & Ors v. Dr Syed Azman Syed Ahmad Nawawi & Ors (No 2)
Yeoh Wee Siam J [2013] 1 CLJ 124 [HC]

Parties - State Government - Defamation - Whether State Government could maintain an action for defamation - The public interest
Kerajaan Negeri Terengganu & Ors v. Dr Syed Azman Syed Ahmad Nawawi & Ors
(Yeoh Wee Siam J) [2013] 1 CLJ 107 [HC]

CONSTITUTIONAL LAW

Jurisdiction - High Court - Local jurisdiction - Winding-up petition in Kuala Lumpur High Court against company registered in Sabah - Whether Kuala Lumpur High Court lacked jurisdiction to wind up respondent - Whether action fell within ambit of s. 23(1)(b) of Courts of Judicature Act 1964 to confer jurisdiction to High Court in Sabah - Federal Constitution, art. 121(1)
Malaysian Assurance Alliance Bhd v. Comsa Properties Sdn Bhd
(KN Segara, Syed Ahmad Helmy, Aziah Ali JJCA) [2013] 1 CLJ 69 [CA]

CRIMINAL LAW

Criminal Trial - Proof - Burden and Onus of proof - Onus on prosecution and defence, while proving their respective cases - Case of wife being burned to death by appellant-accused on getting suspicious about her character - Reiterated, prosecution has to prove its case beyond any reasonable doubt while defence has to prove its case on touchstone of preponderance and probabilities - Herein, despite such a concession, appellant miserably failed to satisfy court by proving his stand, which itself was vague, uncertain and, to some extent, even contradictory - Hence, appellant's conviction confirmed - Penal Code, 1860, s. 302
Shudhakar v. State Of Madhya Pradesh
(Swatanter Kumar, FM Ibrahim Kalifulla JJ) [2013] 1 CLJ 1 [SC India]

Dangerous Drugs Act 1952, s. 39B(1) - Trafficking in 56.85 grams of methamphetamine - Conviction and sentence - Appeal against - Whether there was contradiction in evidence adduced by prosecution witnesses - Whether agent provocateur's evidence treated with caution - Whether accused persons had knowledge about drugs in envelope - Whether common intention established - Whether defence a bare denial - Whether trial judge erred in making wrong findings of fact - Whether conviction and sentence affirmed
Mohd Fadzil Ibrahim & Anor v. PP
(KN Segara, Balia Yusof Wahi, Mohtarudin Baki JJCA) [2013] 1 CLJ 77 [CA]

Penal Code - Section 302 - Murder - Appeal against conviction and sentence - Whether any reason for appellate interference by Federal Court
Ong Teng For & Anor v. PP
(Zulkefli Makinudin CJ (Malaya), Ahmad Maarop, Zaleha Zahari, Sulong Matjeraie FCJJ) [2013] 1 CLJ 39 [FC]

Penal Code, 1860 - Section 302 - Death by burning - Homicidal death or accidental burning - Husband alleged to have set alight his wife after pouring kerosene on her - Accidental burning from stove posited in defence - Mattress and other items also found burnt - Defence of accidental burning from stove absent from s. 313 CrPC statement, though inferable from trend of cross-examination of PWs - Burn injuries not supporting accidental burning - Evidence of struggle between husband and wife before her burning - Homicidal burning, held, established
Shudhakar v. State Of Madhya Pradesh
(Swatanter Kumar, FM Ibrahim Kalifulla JJ) [2013] 1 CLJ 1 [SC India]

CRIMINAL PROCEDURE

Appeal - Appeal against conviction and sentence - Whether any reason for appellate interference by Federal Court
Ong Teng For & Anor v. PP
(Zulkefli Makinudin CJ (Malaya), Ahmad Maarop, Zaleha Zahari, Sulong Matjeraie FCJJ) [2013] 1 CLJ 39 [FC]

Appeal - Appeal against conviction and sentence - Discretion of trial judge whether to accept or reject evidence - Whether appellate court reluctant to interfere with findings on questions of facts made by primary trier of fact - Whether trial judge erred
Mohd Fadzil Ibrahim & Anor v. PP
(KN Segara, Balia Yusof Wahi, Mohtarudin Baki JJCA) [2013] 1 CLJ 77 [CA]

Sentencing - Principles - Offence under s. 10(a) of International Trade in Endangered Species Act 2008 - Accused pleaded guilty - Whether sentence of five years imprisonment excessive - Whether serious offence warranting maximum custodial sentence - Whether mitigating factors considered
Wong Keng Liang v. PP
(Low Hop Bing, KN Segara, Azahar Mohamed JJCA) [2013] 1 CLJ 96 [CA]

EVIDENCE

Corroboration - Agent provocateur - Whether evidence corroborated - Whether evidence admissible - Whether agent provocateur presumed unworthy of credit - Dangerous Drugs Act 1950, s. 40
Mohd Fadzil Ibrahim & Anor v. PP
(KN Segara, Balia Yusof Wahi, Mohtarudin Baki JJCA) [2013] 1 CLJ 77 [CA]

Evidence Act, 1872 - Section 32(1) - Dying declaration - Admissibility and evidentiary value of - Principles reiterated - Held, "dying declaration" is the last statement made by a person at a stage when he is in serious apprehension of his death and expects no chances of his survival - At such time, it is expected that a person will speak the truth and only the truth - Normally in such situations, courts attach intrinsic value of truthfulness to such statement - Once such statement has been made voluntarily, it is reliable and is not an attempt by deceased to cover up truth or falsely implicate a person, then courts can safely rely on such dying declaration and it can form the basis of conviction - More so, where version given by deceased as dying declaration is supported and corroborated by other prosecution evidence, there is no reason for courts to doubt truthfulness of such dying declaration
Shudhakar v. State Of Madhya Pradesh
(Swatanter Kumar, FM Ibrahim Kalifulla JJ) [2013] 1 CLJ 1 [SC India]

Evidence Act, 1872 - Ss. 114 Ill. (g) and 32(1) - Adverse inference under S. 114 Ill. (g) - When arises - Case of wife being burned to death by appellant-accused on getting suspicious about her character - She giving three dying declarations - First dying declaration completely absolving appellant - However, appellant convicted on basis of second and third dying declarations implicating him, read in conjunction with statements of prosecution witnesses - Defence submission that first dying declaration recorded by DW 1 (Naib Tahsildar) was not produced on record by prosecution and, therefore, adverse inference should be drawn against prosecution in terms of S. 114 - Tenability - Reiterated, question of adverse inference in terms of S. 114 Ill. (g) only arises when evidence is withheld from court and is not produced by any of parties to lis - Herein, held, aforesaid document was not only produced but was even critically examined by trial court as well as High Court - Therefore, defence submission is without any merit and stands rejected - Penal Code, 1860, s. 302
Shudhakar v. State Of Madhya Pradesh
(Swatanter Kumar, FM Ibrahim Kalifulla JJ) [2013] 1 CLJ 1 [SC India]

Evidence Act, 1872 - Section 32(1) - Multiple varying or contradictory dying declarations - Which one to be believed by court - Principles governing such determination - Factors which should guide exercise of judicial discretion by court in such matters, examined - Wife burned to death by appellant-accused on getting suspicious about her character - She giving three dying declarations - Conviction on basis of second and third dying declarations, upheld - Where multiple dying declarations made by deceased are either contradictory or are at variance with each other to a large extent, held, test of common prudence would be to first examine which dying declaration is corroborated by other prosecution evidence - Further, attendant circumstances, condition of deceased at time of making of each declaration concerned, medical evidence, voluntariness and genuineness of statement made by deceased, physical and mental fitness of deceased and possibility of deceased being tutored, are some of the factors which would guide exercise of judicial discretion by court in such matters - Herein, after examining evidence, it is clear that first dying declaration, absolving appellant, was not voluntary and not made by free will of deceased - However, second and third dying declarations, implicating appellant husband, were authentic, voluntary and duly corroborated by other prosecution witnesses including medical evidence - Hence, both latter dying declarations, read in conjunction with statement of prosecution witnesses, can safely be made basis for conviction of appellant - Penal Code, 1860, s. 302
Shudhakar v. State Of Madhya Pradesh
(Swatanter Kumar, FM Ibrahim Kalifulla JJ) [2013] 1 CLJ 1 [SC India]

JURISDICTION

High Court - Local jurisdiction - Winding-up petition in Kuala Lumpur High Court against company registered in Sabah - Whether Kuala Lumpur High Court lacked jurisdiction to wind up respondent - Whether action fell within ambit of s. 23(1)(b) of Courts of Judicature Act 1964 to confer jurisdiction to High Court in Sabah
Malaysian Assurance Alliance Bhd v. Comsa Properties Sdn Bhd
(KN Segara, Syed Ahmad Helmy, Aziah Ali JJCA) [2013] 1 CLJ 69 [CA]

Magistrate's Court - Sentencing - Offence under s. 10(a) of International Trade in Endangered Species Act 2008 - Accused pleaded guilty - Whether sentence of five years imprisonment excessive - Whether serious offence warranting maximum custodial sentence - Whether mitigating factors considered - Subordinate Courts Act 1948, s. 87
Wong Keng Liang v. PP
(Low Hop Bing, KN Segara, Azahar Mohamed JJCA) [2013] 1 CLJ 96 [CA]

LAND LAW

Indefeasibility of title and interests - Fraud - Plaintiff's name as registered proprietor of land fraudulently removed when land registration system computerised - Computerised title for plaintiff's land issued in name of third party without plaintiff's knowledge - Whether Registrar of Titles and Director of Lands and Mines grossly negligent and breached statutory duties in allowing fraud in land office to continue unchecked - Whether computerised title to third party nullity and gave no protection to subsequent bona fide purchasers for value - Whether plaintiff should be restored as registered owner of land
Shayo (M) Sdn Bhd v. Nurlieda Sidek & Ors
(Harmindar Singh Dhaliwal J) [2013] 1 CLJ 153 [HC]

LEGAL PROFESSION

Representation by counsel - Private law firm - Whether private practice law firm could represent the State Government in a civil action - Whether "Fiat" of State Legal Adviser or proof of retainer necessary - Late filing of "Fiat", effect of
Kerajaan Negeri Terengganu & Ors v. Dr Syed Azman Syed Ahmad Nawawi & Ors
(Yeoh Wee Siam J) [2013] 1 CLJ 107 [HC]

LOCAL GOVERNMENT

State Government - Legal status and capacity - Whether State Government a public authority or local authority - Whether State Government could maintain an action for defamation - The public interest
Kerajaan Negeri Terengganu & Ors v. Dr Syed Azman Syed Ahmad Nawawi & Ors
(Yeoh Wee Siam J) [2013] 1 CLJ 107 [HC]

STATUTORY INTERPRETATION

Interpretation of Acts - Intention of legislature - Bankruptcy Act 1967, s. 8(2A) - Correct interpretation of - Whether acts as statutory clamp on secured creditors prohibiting them from claiming further interest - Whether merely limits secured creditor's right to continue to impose interest on amount outstanding vis a vis the bankrupt or wound up debtor - Whether applies to a guarantor giving indemnity - Whether guarantor 'debtor' envisaged in s. 8(1) Bankruptcy Act 1967 - Interpretation Acts 1948 & 1967, s. 17A
Andrew Lee Siew Ling v. United Overseas Bank (Malaysia) Bhd
(Zulkefli Makinudin CJ (Malaya), Abdull Hamid Embong, Ahmad Maarop, Zaleha Zahari, Sulong Matjeraie FCJJ) [2013] 1 CLJ 24 [FC]

TORT

Defamation - Libel - Whether a State Government could sue for defamation
Kerajaan Negeri Terengganu & Ors v. Dr Syed Azman Syed Ahmad Nawawi & Ors
(Yeoh Wee Siam J) [2013] 1 CLJ 107 [HC]

Defamation - Libel - Whether Menteri Besar endowed with capacity to sue for defamation in his official capacity - Public interest considerations
Kerajaan Negeri Terengganu & Ors v. Dr Syed Azman Syed Ahmad Nawawi & Ors (No 2)
Yeoh Wee Siam J [2013] 1 CLJ 124

CLJ 2013 Volume 1 (Part 2)

COURT

FEDERAL COURT

Wan Mazuki Wan Abdullah v. PP
Richard Malanjum CJ (Sabah & Sarawak), Augustine Paul, James Foong FCJJ
(Criminal Law; Criminal Procedure - Dangerous Drugs Act 1952 - Section 39B(2)) [2013] 1 CLJ 177 [FC]

COURT OF APPEAL

Goh Kooi Pheng v. PP
Ramly Ali, Syed Ahmad Helmy, Azahar Mohamed JJCA
(Criminal Law; Evidence - Murder - Identification parade - Conduct of) [2013] 1 CLJ 190 [CA]

Md Yusoff Ahmad v. Siti Hajar Sarkawi & Anor
Syed Ahmad Helmy, Balia Yusof Wahi JJCA, Mah Weng Kwai J
(Company Law - Extraordinary general meeting - Transfer of shares - Validity of) [2013] 1 CLJ 200 [CA]

Menteri Kewangan & Ors v. Zullaimy Muhammad
Hishamudin Mohd Yunus, Anantham Kasinather JJCA, Mah Weng Kwai J
(Administrative Law - Judicial Review - Certiorari - Locus standi) [2013] 1 CLJ 213 [CA]

Ong Ah Tang & Anor v. Soh Bee Yong
Low Hop Bing, Abu Samah Nordin, Aziah Ali JJCA
(Land Law; Succession - Sale of land - Public auction) [2013] 1 CLJ 224 [CA]

MBf Holdings Bhd v. MBf Property Services Sdn Bhd & Anor
Asmabi Mohamad JC
(Contract - Discharge - Agreement) [2013] 1 CLJ 230 [HC]

PP v. Davoud Fotoohigharehmasjed Shaban
Amelia Tee Abdullah J
(Criminal Law - Dangerous Drugs Act 1952 - Section 39B(1)(a)) [2013] 1 CLJ 249 [HC]

Public Bank Bhd v. Mohd Isa Mohd Nafidah
Mohd Zawawi Salleh J
(Civil Procedure - Summary judgment - Application for) [2013] 1 CLJ 274 [HC]

Re Thangarajoo Vyran; ex p Denko Industrial Corporation Bhd
Mohamad Ariff Yusof J
(Bankruptcy; Civil Procedure - Creditor's petition - Stay of proceedings) [2013] 1 CLJ 286 [HC]

Rizana Mohamad Daud v. Naluri Corporation Bhd
VT Singham J
(Employment; Limitation - Contract of employment - Terms and conditions) [2013] 1 CLJ 291 [HC]

SUBJECT INDEX

ADMINISTRATIVE LAW

Judicial Review - Certiorari - Application for - Locus standi - Forfeiture of vehicles for failure to furnish requisite approved permits - Whether respondent adversely affected by decision of forfeiture - Whether appellant aggrieved party - Whether respondent authorised by company to file for judicial review in his personal name
Menteri Kewangan & Ors v. Zullaimy Muhammad
(Hishamudin Mohd Yunus, Anantham Kasinather JJCA, Mah Weng Kwai J) [2013] 1 CLJ 213 [CA]

BANKRUPTCY

Creditor's petition - Stay of petition, application for - Stay pending judgment debtor's appeal in Court of Appeal - Whether "sufficient reason" or "special circumstances" needed to be shown - Whether absence of stay of execution a relevant factor - Whether judgment creditor prejudiced
Re Thangarajoo Vyran; ex p Denko Industrial Corporation Bhd
(Mohamad Ariff Yusof J) [2013] 1 CLJ 286 [HC]

CIVIL PROCEDURE

Stay of proceedings - Bankruptcy proceedings - Stay pending judgment debtor's appeal in Court of Appeal - Whether "sufficient reason" or "special circumstances" needed to be shown - Whether absence of stay of execution a relevant factor - Whether judgment creditor prejudiced
Re Thangarajoo Vyran; ex p Denko Industrial Corporation Bhd
(Mohamad Ariff Yusof J) [2013] 1 CLJ 286 [HC]

Summary judgment - Application for - Final judgment for amount due and owing under al-bai bithaman ajil ('BBA') facility - Sale and purchase and construction agreement of property executed - Defendant sold property to plaintiff to facilitate BBA transaction - House under construction - Whether BBA facility agreements void under Islamic principle of contract - Whether house fit as security for facility - Rules of the High Court 1980, O. 14
Public Bank Bhd v. Mohd Isa Mohd Nafidah
(Mohd Zawawi Salleh J) [2013] 1 CLJ 274 [HC]

COMPANY LAW

Meetings - Extraordinary general meeting - Reinstatement and appointment of directors - Venue of meeting - Whether must be held at registered address of company - Whether change of venue invalidated EGM - Whether non-compliance of s. 145A of Companies Act 1965 constituted procedural irregularity
Md Yusoff Ahmad v. Siti Hajar Sarkawi & Anor
(Syed Ahmad Helmy, Balia Yusof Wahi JJCA, Mah Weng Kwai J) [2013] 1 CLJ 200 [CA]

Shares - Transfer of shares - Validity of transfer - Whether share transfer form properly registered - Whether consideration certain - Whether there was breach of s. 24 of Contracts Act 1950
Md Yusoff Ahmad v. Siti Hajar Sarkawi & Anor
(Syed Ahmad Helmy, Balia Yusof Wahi JJCA, Mah Weng Kwai J) [2013] 1 CLJ 200 [CA]

CONTRACT

Discharge - Agreement - Parties to debt settlement deed agreed creditor would acquire ownership of debtor's lands if debtor defaulted - Debtor deposited with solicitors signed Memorandums of Transfer in creditor's favour - Transfer unable to be effected because of Registrar's Caveat on land entered by Inland Revenue Department - Whether debtor obliged to ensure lands were unencumbered - Whether debtor deliberately frustrated creditor's attempt to acquire lands
MBf Holdings Bhd v. MBf Property Services Sdn Bhd & Anor
(Asmabi Mohamad JC) [2013] 1 CLJ 230 [HC]

CRIMINAL LAW

Dangerous Drugs Act 1952 - Section 39B(1)(a) - Trafficking in 1,408.5 grams methamphetamine - Disparity in weight of drugs - Whether reasonable doubts arose as to identity of exhibits - Whether accused's passport tendered in court - Whether investigating officer conducted proper investigation - Whether prima facie case established - Looi Kow Chai & Anor v. PP
PP v. Davoud Fotoohigharehmasjed Shaban
(Amelia Tee Abdullah J) [2013] 1 CLJ 249 [HC]

Dangerous Drugs Act 1952 - Section 39B(2) - Trafficking in cannabis - Whether there was actual delivery of drugs - Whether negotiation constituted sale of drugs
Wan Mazuki Wan Abdullah v. PP
(Richard Malanjum CJ (Sabah & Sarawak), Augustine Paul, James Foong FCJJ) [2013] 1 CLJ 177 [FC]

Murder - Penal Code, s. 302 - Appeal against conviction and sentence - Identification of accused - Manner in which identification parade ('parade') held - Whether age disparities between persons in parade unfair to appellant - Whether flaw in parade undermined subsequent dock identification - Whether identity of person who shot deceased proved - Whether witness an interested witness - Whether care and caution exercised by trial judge - Whether conviction sustained
Goh Kooi Pheng v. PP
(Ramly Ali, Syed Ahmad Helmy, Azahar Mohamed JJCA) [2013] 1 CLJ 190 [CA]

CRIMINAL PROCEDURE

Appeal - Appeal against conviction and sentence - Trafficking in cannabis - Concurrent findings of fact by trial judge and Court of Appeal - Whether findings of fact by trial judge perverse - Whether trial judge erred in evaluation of appellant's version - Whether appellate intervention warranted
Wan Mazuki Wan Abdullah v. PP
(Richard Malanjum CJ (Sabah & Sarawak), Augustine Paul, James Foong FCJJ) [2013] 1 CLJ 177 [FC]

EMPLOYMENT

Contract of employment - Terms and conditions of service - Employee gave employer three months' notice of resignation as provided in contract - Whether compensation payable to employee - Whether employee's suit against employer for compensation time-barred - Whether time computed from date of resignation letter or after expiry of three months' notice - Whether employer's conduct gave employee legitimate expectation compensation would be paid
Rizana Mohamad Daud v. Naluri Corporation Bhd
(VT Singham J) [2013] 1 CLJ 291 [HC]

EVIDENCE

Identification parade - Conduct of - Whether age disparities between persons in parade unfair to appellant - Whether flaw in parade undermined dock identification - Whether conviction sustained
Goh Kooi Pheng v. PP
(Ramly Ali, Syed Ahmad Helmy, Azahar Mohamed JJCA) [2013] 1 CLJ 190 [CA]

Witness - Interested witness - Whether trial judge appraised testimony of interested witness with extreme care and caution - Whether there was misdirection warranting appellate intervention
Goh Kooi Pheng v. PP
(Ramly Ali, Syed Ahmad Helmy, Azahar Mohamed JJCA) [2013] 1 CLJ 190 [CA]

LAND LAW

Sale of land - Public auction - Application by administrators of land - Duty of court - Whether court bound to protect rights of beneficiaries - Whether sale by auction favourable to beneficiaries - Whether majority of beneficiaries supported application for public auction
Ong Ah Tang & Anor v. Soh Bee Yong
(Low Hop Bing, Abu Samah Nordin, Aziah Ali JJCA) [2013] 1 CLJ 224 [CA]

LIMITATION

Contract - Accrual of cause of action - Notice of termination of employment - Claim for compensation - Whether time-barred - Limitation Act 1953, s. 6(1)(a)
Rizana Mohamad Daud v. Naluri Corporation Bhd
(VT Singham J) [2013] 1 CLJ 291 [HC]

SUCCESSION

Administration - Sale of land - Public auction - Application by administrators of land - Whether sale by auction favourable to beneficiaries - Whether majority of beneficiaries supported application for public auction
Ong Ah Tang & Anor v. Soh Bee Yong
(Low Hop Bing, Abu Samah Nordin, Aziah Ali JJCA) [2013] 1 CLJ 224 [CA]

Legal Network Series Articles

1. PRIVATE CAVEATS UNDER THE NATIONAL LAND CODE 1965 ^{[Read excerpt]}
    by: ANITA BALAKRISHNAN [2013] 1 LNS(A) vii

Principal Acts

Number	Title	Date coming into force	Repealing
ACT 751	Rukun Tetangga Act 2012	22 June 2013 [Section 1(2) of the Act]	-Nil-
ACT 752	Malaysia Volunteers Corps Act 2012	22 June 2013 [Section 1(2) of the Act]	-Nil-
ACT 753	Minimum Retirement Age Act 2012	1 July 2013 [PU(B) 422/2012]	-Nil-
ACT 754	International Transfer Of Prisoners Act 2012	Not Yet In Force	-Nil-
ACT 755	Finance Act 2013	11 January 2013	-Nil-

Amending Acts

Number	Title	Date coming into force	Principal/Amending Act No
ACT A1445	Employees Social Security (Amendment) Act 2012	1 January 2013 [PU(B) 424/2012]	ACT 4
ACT A1446	Supply Act 2012	Not Yet In Force	-Nil-
ACT A1447	Pensions Adjustment (Amendment) Act 2013	1 January 2013	ACT 238
ACT A1448	Central Bank Of Malaysia (Amendment) Act 2013	Not Yet In Force	ACT 701
ACT A1449	Industrial Designs (Amendment) Act 2013	Not Yet In Force	ACT 552

PU(A)

Number	Title	Date of Publication	Date coming into force	Principal/Amending Act No
PU(A) 15/2013	Income Tax (Deduction For The Provision Of Child Care Centre) Rules 2013	18 January 2013	Year of assessment 2013	ACT 53
PU(A) 16/2013	United Nations (Privileges And Immunities) (Amendment) Regulations 2013	22 January 2013	23 January 2013	ACT 485
PU(A) 17/2013	Specialized Agencies (Privileges And Immunities) (Amendment) Regulations 2013	22 January 2013	23 January 2013	ACT 485
PU(A) 18/2013	Customs (Values) (Crude Petroleum Oil) (No. 2) Order 2013	23 January 2013	24 January 2013 to 6 February 2013	ACT 235
PU(A) 19/2013	Workmen's Compensation (Foreign Workers' Compensation Scheme) (Insurance) (Amendment) Order 2013	23 January 2013	23 January 2013	ACT 273

PU(B)

Number	Title	Date of Publication	Date coming into force	Principal/Amending Act No
PU(B) 18/2013	Notice Of Completion Of Revision And Inspection Of Supplementary Electoral Rolls	16 January 2013	17 January 2013	ACT 19
PU(B) 19/2013	Notice Of Completion Of Revision And Inspection Of Supplementary Electoral Rolls	16 January 2013	17 January 2013	ACT 19
PU(B) 20/2013	Notice Of Completion Of Revision And Inspection Of Supplementary Electoral Rolls	16 January 2013	17 January 2013	ACT 19
PU(B) 21/2013	Notice Of Completion Of Revision And Inspection Of Supplementary Electoral Rolls	16 January 2013	17 January 2013	ACT 19
PU(B) 22/2013	Notice Of Completion Of Revision And Inspection Of Supplementary Electoral Rolls	16 January 2013	17 January 2013	ACT 19