Bulletin_6

CLJ Bulletin, Vol 2005, Issue 6
18 February 2005

Introduction:
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New This Week -	1. CLJ February (Part 2) 2005
	2. CLJ February (Part 3) 2005
	3. CLJ Supp February (Part 1) 2005

CLJ February (Part 2) 2005

COURT

FEDERAL COURT

Malakoff Bhd v. Pemungut Hasil Tanah Seberang Perai Utara,
Butterworth (Land law - Acquisition of land - Compensation – Comparables ) [2005] 1 CLJ 365

COURT OF APPEAL

Azahan Mohd Aminallah v. PP
(Criminal procedure - Accused charged and tried at one trial for four separate acts of rape allegedly committed over period of five years) [2005] 1 CLJ 374

Mohd Johi Said & Anor v. PP
(Evidence - Agent provocateur - Failure of trial judge to warn himself of dangers of convicting on contradicted evidence of agent provocateur) [2005] 1 CLJ 389

Msimanga Lesaly v. PP
(Evidence - Oral statement made to police officer on arrest - Caution-statement under s. 37A Dangerous Drugs Act 1952 - Whether trial judge can exclude accused’s evidence on ground that it is prejudicial to co-accused) [2005] 1 CLJ 398

Pinsia Development Sdn Bhd & Ors v. Hj Abdul Hadi Ahmad & Ors
(Contract - Construction - Whether conduct of parties can confer a particular meaning to a contractual term) [2005] 1 CLJ 416

SUBJECT INDEX

CONTRACT

Construction - Conduct - Contemporaneous conduct of parties subsequent to making of contract (option to purchase) - Whether conduct may be used by court to interpret contract - Whether conduct of parties can confer a particular meaning to a contractual term - Specific performance ordered in terms of draft sale and purchase agreement
Pinsia Development Sdn Bhd & Ors v. Hj Abdul Hadi Ahmad & Ors
(Gopal Sri Ram, Arifin Jaka & Augustine Paul JJCA) [2005] 1 CLJ 416 [CA]

CRIMINAL LAW

Dangerous Drugs Act 1952 - Section 39B(2) - Trafficking in 4,829g of cannabis - Appeal against conviction - Whether trial judge erred in handling facts of case - Whether there was judicial appreciation of the evidence - Failure of trial judge to warn himself of dangers of convicting on contradicted evidence of agent provocateur - Whether rejection of defence’s evidence proper - Whether defence’s case judicially appreciated - Whether non-direction amounted to misdirection - Whether conviction unsafe
Mohd Johi Said & Anor v. PP
(Gopal Sri Ram, Hashim Yusoff & Tengku Baharudin Shah JJCA) [2005] 1 CLJ 389 [CA]

Dangerous Drugs Act 1952 - Section 39B - Trafficking in dangerous drugs - Rule against double presumptions - Whether trial judge relied on double presumptions to convict accused of trafficking - Whether trial judge made express and affirmative evidential findings on possession and trafficking independent of presumptions under s. 37 Dangerous Drugs Act 1952
Msimanga Lesaly v. PP
(Gopal Sri Ram, Hashim Yusoff & Tengku Baharudin Shah JJCA) [2005] 1 CLJ 398 [CA]

CRIMINAL PROCEDURE

Appeal - Evidence - Failure of judicial appreciation - Appeal against conviction for trafficking in a dangerous drug - Whether trial judge erred in handling facts of case - Whether there was judicial appreciation of the evidence - Failure of trial judge to warn himself of dangers of convicting on contradicted evidence of agent provocateur - Whether rejection of defence’s evidence proper - Whether defence’s case judicially appreciated - Whether non-direction amounted to misdirection - Whether conviction unsafe
Mohd Johi Said & Anor v. PP
(Gopal Sri Ram, Hashim Yusoff & Tengku Baharudin Shah JJCA) [2005] 1 CLJ 389 [CA]

Charge - Alteration of - Recall of witnesses - Whether court duty-bound to notify accused of right to recall witnesses or call further evidence - Whether accused represented by counsel - Whether failure of court to notify accused amounts to procedural illegality - Criminal Procedure Code, ss 159, 162
Msimanga Lesaly v. PP
(Gopal Sri Ram, Hashim Yusoff & Tengku Baharudin Shah JJCA) [2005] 1 CLJ 398 [CA]

Charge - Framing of - Whether defective - Accused jointly tried with co-accused for trafficking in dangerous drug - Co-accused acquitted at close of prosecution case - Charge against accused not properly amended to erase all references to ‘common intention’ - Whether renders charge bad - Whether accused understood nature of charge - Whether accused mislead or prejudiced - Penal Code, s. 34
Msimanga Lesaly v. PP
(Gopal Sri Ram, Hashim Yusoff & Tengku Baharudin Shah JJCA) [2005] 1 CLJ 398 [CA]

Charge - Several charges at one trial - Accused charged and tried at one trial for four separate acts of rape allegedly committed over period of five years - Whether a violation of s. 164(1) Criminal Procedure Code - Whether trial rendered a nullity - Whether a mere irregularity or an incurable illegality - Whether conviction should be quashed and sentence set aside - Whether retrial appropriate
Azahan Mohd Aminallah v. PP
(Gopal Sri Ram, Hashim Yusoff & Tengku Baharuddin Tengku Mahmud JJCA) [2005] 1 CLJ 374 [CA]

Trial - Adjournment - Accused seeking second postponement to engage advocate - Accused unrepresented - Counsel assigned by Legal Aid Bureau not present in court - Whether trial judge should have granted adjournment - Whether should have proceeded with trial
Azahan Mohd Aminallah v. PP
(Gopal Sri Ram, Hashim Yusoff & Tengku Baharuddin Tengku Mahmud JJCA) [2005] 1 CLJ 374 [CA]

Trial - Duty of court - Accused unrepresented by counsel - Accused making unsworn statement from dock - Duty of court to explain to accused principal points of prosecution’s case against him - Consequence of failure to explain - Whether accused seriously prejudiced - Criminal Procedure Code, s. 257(1)
Azahan Mohd Aminallah v. PP
(Gopal Sri Ram, Hashim Yusoff & Tengku Baharuddin Tengku Mahmud JJCA) [2005] 1 CLJ 374 [CA]

EVIDENCE

Agent provocateur - Credibility - Appeal against conviction for trafficking in a dangerous drug - Failure of trial judge to warn himself of dangers of convicting on contradicted evidence of agent provocateur - Whether there was judicial appreciation of the evidence - Whether there was non-direction amounting to misdirection - Whether conviction unsafe
Mohd Johi Said & Anor v. PP
(Gopal Sri Ram, Hashim Yusoff & Tengku Baharudin Shah JJCA) [2005] 1 CLJ 389 [CA]

Judge - Failure of judicial appreciation - Appeal against conviction for trafficking in a dangerous drug - Whether trial judge erred in handling facts of case - Whether there was judicial appreciation of the evidence - Failure of trial judge to warn himself of dangers of convicting on contradicted evidence of agent provocateur - Whether rejection of defence’s evidence proper - Whether defence’s case judicially appreciated - Whether non-direction amounted to misdirection - Whether conviction unsafe
Mohd Johi Said & Anor v. PP
(Gopal Sri Ram, Hashim Yusoff & Tengku Baharudin Shah JJCA) [2005] 1 CLJ 389 [CA]

Similar facts - Reference to past criminal acts - Accused charged with rape - Prosecution adducing evidence of previous acts of sexual intercourse between accused and complainant without leave of the court - Whether highly prejudicial to accused - Whether trial judge should have intervened at once and asked prosecution to justify - Trial judge did not balance probative value of similar fact evidence against its prejudicial effect - Whether a serious misdirection occasioning miscarriage of justice - Whether conviction unsafe - Evidence Act 1950, ss. 14 and 15
Azahan Mohd Aminallah v. PP
(Gopal Sri Ram, Hashim Yusoff & Tengku Baharuddin Tengku Mahmud JJCA) [2005] 1 CLJ 374 [CA]

Statement - Exculpatory statements - Oral statement made to police officer on arrest - Caution-statement under s. 37A Dangerous Drugs Act 1952 - Caution not properly administered - Whether statements wholly inadmissible - Whether only inadmissible upon accused’s objection - Whether accused can waive breach and have statements admitted - Rules of admissibility, whether operates in favour of accused only
Msimanga Lesaly v. PP
(Gopal Sri Ram, Hashim Yusoff & Tengku Baharudin Shah JJCA) [2005] 1 CLJ 398 [CA]

Statement - Exculpatory statements - Oral statement made to police officer on arrest - Caution-statement under s. 37A Dangerous Drugs Act 1952 - Statements wrongly excluded by trial judge - Whether conviction unsafe - Whether there was substantial miscarriage of justice - Whether admission of such prior consistent statements would have added anything to accused’s oral testimony
Msimanga Lesaly v. PP
(Gopal Sri Ram, Hashim Yusoff & Tengku Baharudin Shah JJCA) [2005] 1 CLJ 398 [CA]

Statement - Exculpatory statements - Oral statement made to police officer on arrest - Caution-statement under s. 37A Dangerous Drugs Act 1952 - Whether can be used by prosecution against co-accused under s. 30 Evidence Act 1950 - Whether statements amounted to a confession within s. 17(2) Evidence Act 1950 - Whether purely exculpatory statements
Msimanga Lesaly v. PP
(Gopal Sri Ram, Hashim Yusoff & Tengku Baharudin Shah JJCA) [2005] 1 CLJ 398 [CA]

Statement - Exculpatory statements - Oral statement made to police officer on arrest - Caution-statement under s. 37A Dangerous Drugs Act 1952 - Whether trial judge can exclude accused’s evidence on ground that it is prejudicial to co-accused - Whether discretion of trial judge to exclude such evidence only exercisable as against prosecution
Msimanga Lesaly v. PP
(Gopal Sri Ram, Hashim Yusoff & Tengku Baharudin Shah JJCA) [2005] 1 CLJ 398 [CA]

LAND LAW

Acquisition of land - Compensation - Assessment by learned judge - Whether sufficient weight given to comparables put forth by parties
Malakoff Bhd v. Pemungut Hasil Tanah Seberang Perai Utara, Butterworth
(Haidar Mohd Noor CJ (Malaya), Steve Shim CJ (Sabah & Sarawak) & Arifin Zakaria JCA) [2005] 1 CLJ 365 [FC]

WORDS & PHRASES

“elects to give evidence” - Criminal Procedure Code, s. 257(1) - Whether ‘making an unsworn statement from the dock’ is equivalent to ‘giving evidence’
Azahan Mohd Aminallah v. PP
(Gopal Sri Ram, Hashim Yusoff & Tengku Baharuddin Tengku Mahmud JJCA) [2005] 1 CLJ 374 [CA]

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CLJ February (Part 3) 2005

COURT

FEDERAL COURT

PP v. Dato' Waad Mansor
(Emergency (Essential Powers) Ordinance No 22 of 1970 - Section 2(1) - Corrupt practice) [2005] 1 CLJ 421

COURT OF APPEAL

Pasupathy Kanagasaby v. PP
(Penal Code - Section 415 read with s. 109 - Abetting another to cheat) [2005] 1 CLJ 442

Sabarudin Non v. PP & Other Appeals
(Penal Code - Section 34 - Common intention - Proof of - Non-presence and non-participation of co-accused at crime scene - Whether s. 34 applicable) [2005] 1 CLJ 466

Yong Siew Agiing v. The Owners And The Persons Interested In The Vessel "ML Saga 86" & Ors
(Administration of estates - Letter of administration - Whether conferred upon administratrix capacity to sue on tort in respect of injury and death suffered by deceased) [2005] 1 CLJ 487

SUBJECT INDEX

CIVIL PROCEDURE

Administration of estates - Letter of administration - Whether conferred upon administratrix capacity to sue on tort in respect of injury and death suffered by deceased
Yong Siew Agiing v. The Owners And The Persons Interested In The Vessel "ML Saga 86" & Ors
(Mokhtar Sidin, Mohd Ghazali Yusoff & Nik Hashim JJCA) [2005] 1 CLJ 487

Administration of estates - Letter of administration with schedule of property attached - Nature and importance of such list - Schedule of assets annexed to grant of letters of administration did not include claim by administratrix - Whether list may be amended to include such claim subsequent to issue of letter of administration - Whether such amended list retrospective in nature
Yong Siew Agiing v. The Owners And The Persons Interested In The Vessel "ML Saga 86" & Ors
(Mokhtar Sidin, Mohd Ghazali Yusoff & Nik Hashim JJCA) [2005] 1 CLJ 487

Res Judicata - Finality of earlier decision - Issue raised by way of application dismissed in earlier litigation - No appeal against such dismissal - Fresh suit for declaratory relief in respect of same issue - Whether such suit ought to be struck out
Yong Siew Agiing v. The Owners And The Persons Interested In The Vessel "ML Saga 86" & Ors
(Mokhtar Sidin, Mohd Ghazali Yusoff & Nik Hashim JJCA) [2005] 1 CLJ 487

CRIMINAL LAW

Emergency (Essential Powers) Ordinance No 22 of 1970 - Section 2(1) - Corrupt practice - Accused politician took part in decisions to approve application for quarry land made by company in which he had interest - Whether an abuse of office - Whether use of public position for pecuniary advantage - Whether there was premeditation to commit corrupt act - Whether sentence imposed by Court of Appeal inadequate to reflect gravity of offence
PP v. Dato' Waad Mansor
(Abdul Malek Ahmad PCA, Siti Norma Yaakob & Alauddin Mohd Sheriff FCJJ) [2005] 1 CLJ 421

Penal Code - Section 34 - Common intention - Proof of - Non-presence and non-participation of co-accused at crime scene - Whether s. 34 applicable - Whether evidence showed co-accused acted in concert with others
Sabarudin Non v. PP & Other Appeals
(Gopal Sri Ram, Hashim Yusoff & Tengku Baharudin Shah JJCA) [2005] 1 CLJ 466

Penal Code - Section 415 - Cheating - Section 415 prior amendment in 1999 - Whether words "that person" refer to person deceived - Whether person deceived must suffer loss - Whether words apply only to second class of acts stipulated by s. 415
Pasupathy Kanagasaby v. PP
(Abdul Malek Ahmad PCA, Ariffin Zakaria & Tengku Baharudin Shah JJCA) [2005] 1 CLJ 442

Penal Code - Section 415 read with s. 109 - Abetting another to cheat - Appeal against conviction and sentence - Three years delay by trial court in supplying grounds of judgment, whether miscarriage of justice occasioned - Section 415 prior amendment in 1999, whether applicable - Prima facie test applied at close of prosecution case, whether correct - Finding on credibility of witnesses, whether warranted interference by appellate court - Corroboration, whether sufficient - Accomplice evidence, whether proper consideration given
Pasupathy Kanagasaby v. PP
(Abdul Malek Ahmad PCA, Ariffin Zakaria & Tengku Baharudin Shah JJCA) [2005] 1 CLJ 442

CRIMINAL PROCEDURE

Conviction - Accomplice evidence, based on - Whether conviction proper
Sabarudin Non v. PP & Other Appeals
(Gopal Sri Ram, Hashim Yusoff & Tengku Baharudin Shah JJCA) [2005] 1 CLJ 466

EVIDENCE

Accomplice - Evidence implicating accused of offence - Whether admissible - Whether sworn testimony a confession within s. 30 Evidence Act 1950
Pasupathy Kanagasaby v. PP
(Abdul Malek Ahmad PCA, Ariffin Zakaria & Tengku Baharudin Shah JJCA) [2005] 1 CLJ 442

Accomplice - Evidence of - Credibility and corroboration - Whether satisfied - Discrepancies - Whether affected admissibility
Sabarudin Non v. PP & Other Appeals
(Gopal Sri Ram, Hashim Yusoff & Tengku Baharudin Shah JJCA) [2005] 1 CLJ 466

Confession - Co-accused confession - Whether trial judge correctly admitted confession - Whether trial judge erred in shifting burden on to co-accused to prove oppression
Sabarudin Non v. PP & Other Appeals
(Gopal Sri Ram, Hashim Yusoff & Tengku Baharudin Shah JJCA) [2005] 1 CLJ 466

Corroboration - Law as to - Whether learned judge correctly directed himself on law
Sabarudin Non v. PP & Other Appeals
(Gopal Sri Ram, Hashim Yusoff & Tengku Baharudin Shah JJCA) [2005] 1 CLJ 466

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CLJ Supp February (Part 1) 2005

COURT

HIGH COURT

Cekal Berjasa Sdn Bhd v. Malaysia Building Society Bhd
(Interlocutory injunction - Application for) [2005] 5 CLJ 149

Chaw Anui v. Tan Kim Chai (No 2)
(Execution - Application for stay of execution pending appeal) [2005] 5 CLJ 171

Hoy Pak Kwai v. Leong Kon Fah & Ors
(Company law - Winding-up - Petition - Application for) [2005] 5 CLJ 179

Leong Kum Whay v. QBE Insurance (M) Sdn Bhd & Ors
(Arbitration - Award - Setting aside) [2005] 5 CLJ 191

PP v. Mohd Azrin Mohd Nor
(Criminal law - Dangerous Drugs Act 1952 - Section 39B(1)(a) Trafficking in cannabis) [2005] 5 CLJ 199

Public Bank Bhd v. Kok Lee Wah
(Bankruptcy - Discharge - Order for discharge of bankrupt) [2005] 5 CLJ 212

SUBJECT INDEX

ARBITRATION

Award - Setting aside - Principles applicable - Whether there was an error of law on face of award - Whether arbitrator had misconducted himself - Arbitration Act 1952, s. 24(2)
Leong Kum Whay v. QBE Insurance (M) Sdn Bhd & Ors
(Raus Sharif J) [2005] 5 CLJ 191 [HC]

BANKRUPTCY

Discharge - Order for discharge of bankrupt - Appeal by creditor against order - Principles applicable - Factors to be considered - Whether order ought to be allowed
Public Bank Bhd v. Kok Lee Wah
(Suriyadi Halim Omar J) [2005] 5 CLJ 212 [HC]

CIVIL PROCEDURE

Execution - Stay - Application for stay of execution pending appeal - Principles applicable - Whether stay ought to be granted
Chaw Anui v. Tan Kim Chai (No 2)
(Low Hop Bing J) [2005] 5 CLJ 171 [HC]

Injunction - Interlocutory injunction - Application for - Principles applicable - Triable issues - Balance of convenience - Damages - Status quo of parties
Cekal Berjasa Sdn Bhd v. Malaysia Building Society Bhd
(Abdul Malik Ishak J) [2005] 5 CLJ 149 [HC]

COMPANY LAW

Winding-up - Petition - Application for - Allegations of oppressive conduct by petitioner against 1st and 2nd respondents - Whether substantiated - Whether there was a breach of fiduciary duty by 1st and 2nd respondents - Whether petition to be granted - Companies Act 1965, s. 181
Hoy Pak Kwai v. Leong Kon Fah & Ors
(Linton Albert JC) [2005] 5 CLJ 179 [HC]

CRIMINAL LAW

Dangerous Drugs Act 1952 - Section 39B(1)(a) - Trafficking in cannabis - Prima facie case - Whether there was a complete sale transaction - Credibility of witnesses - Whether a prima facie case established
PP v. Mohd Azrin Mohd Nor
(Mohd Hishamudin Yunus J) [2005] 5 CLJ 199 [HC]

EVIDENCE

Witness - Credibility of - Whether there were clear discrepancies in evidence of prosecution’s key witnesses - Sketch plan - Material inconsistencies - Whether credibility of witnesses in doubt
PP v. Mohd Azrin Mohd Nor
(Mohd Hishamudin Yunus J) [2005] 5 CLJ 199 [HC]

INSURANCE

Life insurance - Construction of policy - Whether policies in question life policies or personal accident policies - Distinction thereof - Whether s. 15C(4) Insurance Act 1963 applicable - Insurance Act 1963, s. 15C(4)
Leong Kum Whay v. QBE Insurance (M) Sdn Bhd & Ors
(Raus Sharif J) [2005] 5 CLJ 191 [HC]

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CASE OF THE WEEK

CHIN YOKE TENG AND ANOR v. WILLIAM UI YEE MEIN

Does an unborn child have a legal personality to sue?

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