Bulletin_06

CLJ Bulletin, Issue 2011, Vol 6

18 February 2011

CLJ Law Malaysia

http://www.cljlaw.com

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New This Week	1. Articles
	a) Legal Network Series Articles
	2. Latest Cases
	a) Legal Network Series
	b) CLJ Volume 1 (Part 5) 2011
	c) CLJ Volume 1 (Part 6) 2011

1. Articles

a) Legal Network Series Articles

1. Human Rights And Civil Wrongs: Tort Law Under The Spotlight Hailsham Lecture 2009 ^{[Read
excerpt]}
By The RT Hon Lady Justice Arden DBE*

2. Peraturan Publisiti Dalam Profesion Guaman: Justifikasi Ke Arah Penilaian Semula** ^{[Read
excerpt]}
By Harlina Mohamed On & Rohimi Shapiee*

2. Latest Cases

a) Legal Network Series

CITATION TITLE SUBJECT

[2009] 1 LNS 819 [HC] Malayan Banking Berhad v. Fleur Chem Sdn Bhd & Ors & Another Case

BANKING: Banker and customer - Overdraft and Trust receipt facilities - Whether Bank established its claim that defendants utilized banking facilities to the extent claimed - Whether the Bank was entitled to issue a demand recalling the facilities granted to defendants - Whether demand premature - Whether the Bank rejected the applications for letters of credit by defendants - Whether the Bank breached the terms of the banking facilities afforded to defendants - Effect thereof - Whether such breach absolved the defendants from repayment of the monies advanced by the Bank under the various facilities afforded to the companies - Whether Bank was liable to the defendants by way of counterclaim for the losses suffered as a consequence of the rejection of the letters of credit

[2009] 1 LNS 820 [HC] Affin Bank Berhad v. Agate Distributors Sdn Bhd & Ors

CONTRACT: Guarantee - Revocation - Construction - Banking facilities given to 1^st defendant - 2^nd to 5^th defendants guarantors of this facility - 2^nd defendant giving notice via solicitors' letter dated 15 July 1997 that guarantors would not be liable for any claim arising from the failure, default and/or neglect of 1^st defendant in servicing the facility - Facility unutilized - Subsequent letters sent by 2^nd defendant's solicitors to plaintiff to procure a clear acknowledgement of release from plaintiff - No response from plaintiff - Whether the continuing Guarantee was revocable by express notice - Contracts Act 1950, ss. 82 and 83 - Whether the letter of 15 July 1997 comprised sufficient notice of revocation of the guarantee - Whether the plaintiff's action was premature for want of a valid and effective demand on the defendants - Whether plaintiff was entitled to a claim in interest

[2009] 1 LNS 853 [HC] SA Architects Sdn Bhd v. Marina Sdn Bhd

CONTRACT: Agreement - Nature of - Whether there was already an agreement for the project in 1996 - Whether plaintiff had carried out architectural services for which they were claiming - Delay in making claim - Whether project was shelved in 1996 by mutual consent - Whether plaintiff estopped from pursuing claim

[2009] 1 LNS 873 [HC] Veheng Global Traders Sdn Bhd v. Environmental Solutions (Asia) Pte Ltd & Anor
CIVIL PROCEDURE: Service out of jurisdiction - Leave to serve out of jurisdiction - Writ of Summons and the Notice of Writ served by plaintiff on the defendants in Singapore - Plaintiff used Form 2 when appropriate form was Form 3 - No application for leave to issue Writ made - Whether the issuance and service of the Writ of Summons and Notice of Writ defective - Whether curable under O. 1A or O. 2 r. 1(1) of the Rules of the High Court 1980

[2009] 1 LNS 896 [HC] Kerajaan Malaysia v. Amalan Tepat Sdn Bhd
CIVIL PROCEDURE: Summary judgment - Recovery of tax due and payable for the assessment years 1997 and 1998 - Defendant challenging the amount of the tax assessed - Whether triable issues raised - Defendant claiming ignorance of their right to appeal against the amount assessed within 30 days of the service of the notices of assessment pursuant to s. 99 of the Income Tax Act 1967 - Whether a valid defence - Defendant contending basis of the tax assessment was grounded upon an incomplete draft account and there was an appeal lodged against the assessed amount - Whether Court has power to entertain any plea that the amount of tax sought to be recovered is excessive, incorrectly assessed, under appeal or incorrectly increased - Income Tax Act 1967, ss. 103(1), 106(3), 142(1)

CITATION	TITLE	SUBJECT
[2009] 1 LNS 819 [HC]	Malayan Banking Berhad v. Fleur Chem Sdn Bhd & Ors & Another Case	BANKING: Banker and customer - Overdraft and Trust receipt facilities - Whether Bank established its claim that defendants utilized banking facilities to the extent claimed - Whether the Bank was entitled to issue a demand recalling the facilities granted to defendants - Whether demand premature - Whether the Bank rejected the applications for letters of credit by defendants - Whether the Bank breached the terms of the banking facilities afforded to defendants - Effect thereof - Whether such breach absolved the defendants from repayment of the monies advanced by the Bank under the various facilities afforded to the companies - Whether Bank was liable to the defendants by way of counterclaim for the losses suffered as a consequence of the rejection of the letters of credit
[2009] 1 LNS 820 [HC]	Affin Bank Berhad v. Agate Distributors Sdn Bhd & Ors	CONTRACT: Guarantee - Revocation - Construction - Banking facilities given to 1^st defendant - 2^nd to 5^th defendants guarantors of this facility - 2^nd defendant giving notice via solicitors' letter dated 15 July 1997 that guarantors would not be liable for any claim arising from the failure, default and/or neglect of 1^st defendant in servicing the facility - Facility unutilized - Subsequent letters sent by 2^nd defendant's solicitors to plaintiff to procure a clear acknowledgement of release from plaintiff - No response from plaintiff - Whether the continuing Guarantee was revocable by express notice - Contracts Act 1950, ss. 82 and 83 - Whether the letter of 15 July 1997 comprised sufficient notice of revocation of the guarantee - Whether the plaintiff's action was premature for want of a valid and effective demand on the defendants - Whether plaintiff was entitled to a claim in interest
[2009] 1 LNS 853 [HC]	SA Architects Sdn Bhd v. Marina Sdn Bhd	CONTRACT: Agreement - Nature of - Whether there was already an agreement for the project in 1996 - Whether plaintiff had carried out architectural services for which they were claiming - Delay in making claim - Whether project was shelved in 1996 by mutual consent - Whether plaintiff estopped from pursuing claim
[2009] 1 LNS 873 [HC]	Veheng Global Traders Sdn Bhd v. Environmental Solutions (Asia) Pte Ltd & Anor	CIVIL PROCEDURE: Service out of jurisdiction - Leave to serve out of jurisdiction - Writ of Summons and the Notice of Writ served by plaintiff on the defendants in Singapore - Plaintiff used Form 2 when appropriate form was Form 3 - No application for leave to issue Writ made - Whether the issuance and service of the Writ of Summons and Notice of Writ defective - Whether curable under O. 1A or O. 2 r. 1(1) of the Rules of the High Court 1980
[2009] 1 LNS 896 [HC]	Kerajaan Malaysia v. Amalan Tepat Sdn Bhd	CIVIL PROCEDURE: Summary judgment - Recovery of tax due and payable for the assessment years 1997 and 1998 - Defendant challenging the amount of the tax assessed - Whether triable issues raised - Defendant claiming ignorance of their right to appeal against the amount assessed within 30 days of the service of the notices of assessment pursuant to s. 99 of the Income Tax Act 1967 - Whether a valid defence - Defendant contending basis of the tax assessment was grounded upon an incomplete draft account and there was an appeal lodged against the assessed amount - Whether Court has power to entertain any plea that the amount of tax sought to be recovered is excessive, incorrectly assessed, under appeal or incorrectly increased - Income Tax Act 1967, ss. 103(1), 106(3), 142(1)

b. CLJ Volume 1 (Part 5) 2011

COURT

FEDERAL COURT

His Royal Highness Sultan Ismail Petra Ibni Almarhum Sultan Yahya Petra v. His Royal Highness Tengku Mahkota Tengku Muhammad Faris Petra & Anor And Another Case
Zulkefli Makinudin, Raus Sharif, Abdull Hamid Embong
(Constitutional Law - Sovereign - Regent - Whether regent may assume full powers of a Sultan) [2011] 1 CLJ 541 [FC]

Shamala Sathiyaseelan v. Dr Jeyaganesh C Mogarajah & Anor
Zaki Tun Azmi, Arifin Zakaria, Richard Malanjum, Zulkefli Makinudin
(Civil Procedure - Contempt of court - Whether contemnor must first purge contempt before contemnor can be heard) [2011] 1 CLJ 568 [FC]

COURT OF APPEAL

Kerajaan Malaysia & Ors v. Tay Chai Huat
Abdull Hamid Embong, KN Segara, Abu Samah Nordin
(Administrative Law; Police; Public Servants - Dismissal - Police officer - Long delay in instituting disciplinary action - Whether fatal) [2011] 1 CLJ 592 [CA]

Malayan Banking Bhd v. Ching Suit Fee (Trading As Prime Index Enterprise)
Sulaiman Daud, T Selventhiranathan, Abdul Wahab Patail
(Banking; Civil Procedure - Letter of credit - Issuing bank demanding refund after endorsing payment to seller of goods - Whether estoppel applied) [2011] 1 CLJ 615 [CA]

PP v. Sanin Othman
Suriyadi Halim Omar, Hasan Lah, Sulaiman Daud
(Criminal Law; Evidence - Murder - Intention - Whether intention could develop on the spot) [2011] 1 CLJ 626 [CA]

HIGH COURT

Bang Giok Kiom & Yang Lain lwn. PP
Kamardin Hashim
(Prosedur Jenayah - Semakan - Perintah lucuthak vessel menangkap ikan - Sama ada teratur) [2011] 1 CLJ 643 [HC]

Md Redzuan Alang lwn. Panglima Tentera Laut & Satu Lagi
Zura Yahya
(Angkatan Tentera - Bintara Muda - Pemberhentian perkhidmatan - Sama ada sah) [2011] 1 CLJ 656 [HC]

SUBJECT INDEX

ADMINISTRATIVE LAW

Public servants - Dismissal of police officer - Police officer dismissed for alleged breaches of discipline occurring between 1982 and 1990 - Respondent asked to show cause in 1993 - Whether long and unexplained delay in instituting disciplinary action amounted to procedural unfairness - Failure by disciplinary authority to adequately consider respondent's written representation - Whether allegations devoid of merit - Whether public servant facing disciplinary action under General Orders 1980 entitled to oral hearing - Failure of disciplinary authority to call respondent for further clarification - Disciplinary authority fettering its discretion - Respondent denied reasonable opportunity to have his case heard - Dismissal unlawful - Public Officers (Conduct and Discipline) (Chapter D), General Orders 1980, General Orders 4(2)(f)(i), (g) & 26
Kerajaan Malaysia & Ors v. Tay Chai Huat
(Abdull Hamid Embong, KN Segara, Abu Samah Nordin JJCA) [2011] 1 CLJ 592 [CA]

BANKING

Banks and banking business - Letter of Credit - Sale of goods - Alleged discrepancies in documents - Issuing bank demanding refund on grounds of alleged irregularities after endorsing payment to seller - Demand accommodated by seller's bank who deducted sum from seller's account - Whether deduction wrongful - Whether seller's bank liable to refund deducted sum to seller - Contracts Act 1950 s. 73 - Payment made under mistake - Applicability
Malayan Banking Bhd v. Ching Suit Fee (Trading As Prime Index Enterprise)
(Sulaiman Daud, T Selventhiranathan, Abdul Wahab Patail JJCA) [2011] 1 CLJ 615 [CA]

CIVIL PROCEDURE

Contempt of court - Whether contemnor must first purge contempt before contemnor can be heard - Appellant in matrimonial proceedings taking children outside Malaysia and remaining outside Malaysia in breach of custody order and order for return of children - Appellant seeking to refer constitutional questions regarding custody of children for consideration of Federal Court - Whether court may refuse to hear reference until appellant purges her contempt
Shamala Sathiyaseelan v. Dr Jeyaganesh C Mogarajah & Anor
(Zaki Tun Azmi CJ, Alauddin Mohd Sherif PCA, Arifin Zakaria CJ (Malaya), Richard Malanjum CJ (Sabah & Sarawak), Zulkefli Makinudin FCJ) [2011] 1 CLJ 568 [FC]

Estoppel - Banks and banking business - Letter of Credit - Sale of goods - Issuing bank demanding refund on grounds of alleged irregularities in documents after endorsing payment to seller - Whether estoppel applied
Malayan Banking Bhd v. Ching Suit Fee (Trading As Prime Index Enterprise)
(Sulaiman Daud, T Selventhiranathan, Abdul Wahab Patail JJCA) [2011] 1 CLJ 615 [CA]

CRIMINAL LAW

Penal Code - Section 302 - Murder - Prima facie case - Whether established - Robbery attempt by accused ending in accused stabbing deceased - Stab wounds causing deceased's death - Ingredients to be established by prosecution - Whether intention to cause death could be established from seriousness of injuries and manner in which injuries were caused - Whether injuries were accidental and unintentional - Whether intention to cause death or bodily injury can be formulated on the spot - Ample time for accused to formulate intention -Prima facie case established - Penal Code, ss. 300(c) & 302
PP v. Sanin Othman
(Suriyadi Halim Omar, Hasan Lah, Sulaiman Daud JJCA) [2011] 1 CLJ 626 [CA]

EVIDENCE

Witness - Inconsistencies in testimony - Whether inconsistencies affect veracity of accused's evidence - Whether weight of evidence affected - Whether whole testimony ought to be rejected outright
PP v. Sanin Othman
(Suriyadi Halim Omar, Hasan Lah, Sulaiman Daud JJCA) [2011] 1 CLJ 626 [CA]

POLICE

Disciplinary proceedings - Dismissal - Police officer dismissed for alleged breaches of discipline occurring between 1982 and 1990 - Respondent only asked to show cause in 1993 - Whether long and unexplained delay in instituting disciplinary action amounted to procedural unfairness - Failure by disciplinary authority to adequately consider respondent's written representation - Whether allegations devoid of merit - Whether public servant facing disciplinary action under General Orders 1980 entitled to oral hearing - Failure of disciplinary authority to keep an open mind and to call respondent for further clarification - Disciplinary authority fettering its discretion - Respondent denied reasonable opportunity to have his case heard - Dismissal unlawful - Public Officers (Conduct and Discipline) (Chapter D), General Orders 1980, General Orders 4(2)(f)(i), (g) & 26
Kerajaan Malaysia & Ors v. Tay Chai Huat
(Abdull Hamid Embong, KN Segara, Abu Samah Nordin JJCA) [2011] 1 CLJ 592 [CA]

PUBLIC SERVANTS

Dismissal - Dismissal of police officer - Police officer dismissed for alleged breaches of discipline occurring between 1982 and 1990 - Respondent only asked to show cause in 1993 - Whether long and unexplained delay in instituting disciplinary action amounted to procedural unfairness - Failure by disciplinary authority to adequately consider respondent's written representation - Whether allegations devoid of merit - Whether public servant facing disciplinary action under General Orders 1980 entitled to oral hearing - Failure of disciplinary authority to keep an open mind and to call respondent for further clarification - Disciplinary authority fettering its discretion - Respondent denied reasonable opportunity to have his case heard - Dismissal unlawful - Public Officers (Conduct and Discipline) (Chapter D), General Orders 1980, General Orders 4(2)(f)(i), (g) & 26
Kerajaan Malaysia & Ors v. Tay Chai Huat
(Abdull Hamid Embong, KN Segara, Abu Samah Nordin JJCA) [2011] 1 CLJ 592 [CA]

CONSTITUTIONAL LAW

Sovereignty - Regency - Whether Regent may assume full powers of a Sultan when acting during Sultan's incapacitation - Whether Regent is vested with all powers of "His Royal Highness" - Distinction between powers exercised by a Regent and powers exercised by a reigning Sultan - Royal prerogatives of Regent to appoint or revoke appointment of Members of Council of Succession - Royal prerogatives of Regent to confer or revoke State Titles, Dignities and Honours
His Royal Highness Sultan Ismail Petra Ibni Almarhum Sultan Yahya Petra v. His Royal Highness Tengku Mahkota Tengku Muhammad Faris Petra & Anor And Another Case
(Zulkefli Makinudin, Raus Sharif, Abdull Hamid Embong FCJJ) [2011] 1 CLJ 541 [FC]

Sovereignty - Sultan, powers of - Powers of Sultan during incapacitation and pendency of Regency - Whether incapacitated Sultan may exercise powers attributed to "His Royal Highness" - Whether incapacitated Sultan has locus to refer a question of law to the Federal Court - Article LXIII(2) First Part and art. IV(4) Second Part of the Laws of the Constitution of Kelantan
His Royal Highness Sultan Ismail Petra Ibni Almarhum Sultan Yahya Petra v. His Royal Highness Tengku Mahkota Tengku Muhammad Faris Petra & Anor And Another Case
(Zulkefli Makinudin, Raus Sharif, Abdull Hamid Embong FCJJ) [2011] 1 CLJ 541 [FC]

INDEKS PERKARA

ANGKATAN TENTERA

Perkhidmatan - Pemberhentian - Bintara Muda, Tentera Laut DiRaja - Diberhentikan perkhidmatan oleh Panglima Tentera Laut atas alasan "perkhidmatan tidak lagi diperlukan" - Sama ada pemberhentian sah di sisi undang-undang - Panglima Tentera Laut - Sama ada mempunyai kuasa untuk memberhentikan perkhidmatan plaintif - Akta Angkatan Tentera 1972, ss. 36, 217 - Navy Ordinance 1958 (dimansuh) ss. 10, 11
Md Redzuan Alang lwn. Panglima Tentera Laut & Satu Lagi
(Zura Yahya PK) [2011] 1 CLJ 656 [HC]

PROSEDUR JENAYAH

Semakan - Perintah lucuthak - Perlucuthakkan vessel menangkap ikan - Pertuduhan mengguna kru warganegara asing dan menangkap ikan di taman laut tanpa kebenaran Ketua Pengarah Perikanan - Kru warganegara asing mengaku salah, disabit dan dihukum - Pemilik dan nakhoda vessel dibicara dan dilepas dan dibebaskan - Sama ada perintah lucuthak yang dibuat oleh Majistret betul, teratur dan sah - Akta Perikanan, ss. 8, 34, 43, 52 - Kanun Tatacara Jenayah, s. 323 - Kanun Keseksaan, s. 34
Bang Giok Kiom & Yang Lain lwn. PP
(Kamardin Hashim PK) [2011] 1 CLJ 643 [HC]

c. CLJ Volume 1 (Part 6) 2011

COURT

COURT OF APPEAL

Mahasin Yazir Mahamad Yusoff v. PP
Low Hop Bing, Abdul Malik Ishak, KN Segara
(Criminal Law - Dangerous Drugs Act 1952 - Section 39B(1)(a) - Trafficking) [2011] 1 CLJ 665 [CA]

Ong Thean Chye & Ors v. Tiew Choy Chai & Anor
Abdul Malik Ishak, Kang Hwee Gee, Abdul Wahab Patail
(Civil Procedure; Contract; Land Law; Professions - Locus standi - Action for breach of contract - Illegality - Brokerage commission - Brokers not registered agents) [2011] 1 CLJ 674 [CA]

Peter Merupi & Anor v. PP
Low Hop Bing, Syed Ahmad Helmy, Mohamed Apandi Ali
(Criminal Law - Penal Code - Section 302 - Murder - Conviction and sentence) [2011] 1 CLJ 716 [CA]

HIGH COURT

Perbadanan Nasional Bhd v. Yip Yee Foo & Anor
Hasnah Mohammed Hashim
(Civil Procedure - Striking out - Application for) [2011] 1 CLJ 727 [HC]

Raman Mariappen v. PP
Abang Iskandar
(Criminal Law; Evidence - Anti-Corruption Act 1997 - Section 11(a) - Soliciting and accepting RM2,000 as inducement - Accomplice - Corroboration - Presumption of adverse inference) [2011] 1 CLJ 739 [HC]

Tahan Steel Corporation Sdn Bhd v. Bank Islam Malaysia Bhd
Rohana Yusuf
(Banking; Civil Procedure; Contract; Islamic Law - Al-Istisnaa’ facility agreements - Breach - Damages) [2011] 1 CLJ 755 [HC]

Wong Yeng Mun v. CIMB Bank Bhd
Balia Yusof Wahi
(Banking - Banks and banking business - Confidentiality obligations) [2011] 1 CLJ 785 [HC]

Yap Lee See v. William Tay & Ors
Yeoh Wee Siam
(Civil Procedure; Family Law - Whether affidavit without translation jurat admissible - Children - Custody - Rights of a father of an illegitimate child) [2011] 1 CLJ 793 [HC]

SUBJECT INDEX

BANKING

Banks and banking business - Confidentiality obligations - Bank sending statement of accounts to customer’s home address instead of stipulated correspondence address - Statement of accounts viewed by unauthorized party - Whether bank breached confidentiality of plaintiff’s account
Wong Yeng Mun v. CIMB Bank Bhd
(Balia Yusof Wahi J) [2011] 1 CLJ 785 [HC]

Banks and banking business - Islamic banking - Al-Istisnaa’ facility agreements - Whether defendant had breached facility agreements - Defendant refusing to allow last drawdown of facility - Whether plaintiff failed to fulfil condition precedent of facility agreements - Failure of defendant to inform plaintiff regarding non-compliance with condition precedent - Defendant’s conduct causing plaintiff to presume that condition precedent was fulfilled - Whether defendant’s conduct amounted to repudiatory breach
Tahan Steel Corporation Sdn Bhd v. Bank Islam Malaysia Bhd
(Rohana Yusuf J) [2011] 1 CLJ 755 [HC]

CIVIL PROCEDURE

Affidavits - Jurat - Whether affidavits without translation jurat admissible
Yap Lee See v. William Tay & Ors
(Yeoh Wee Siam JC) [2011] 1 CLJ 793 [HC]

Locus standi - Action for breach of contract - Agreement a sham and/or illegal agreement - Plaintiffs having no locus standi to sue on such agreement
Ong Thean Chye & Ors v. Tiew Choy Chai & Anor
(Abdul Malik Ishak, Kang Hwee Gee, Abdul Wahab Patail JJCA) [2011] 1 CLJ 674 [CA]

Pleadings - Matters not pleaded - Introduction of evidence on matters not pleaded - Whether prejudicial to plaintiff’s case - Whether court should consider issues
Tahan Steel Corporation Sdn Bhd v. Bank Islam Malaysia Bhd
(Rohana Yusuf J) [2011] 1 CLJ 755 [HC]

Striking out - Application for - Application to strike out plaintiff’s writ of summons and statement of claim - Rules of the High Court 1980, O. 25 r. 1(4) - Whether applicable - Whether defendant satisfied ingredients pursuant to O. 34 of the Rules of the High Court 1980 - Whether application to have matter struck out misconceived and untenable
Perbadanan Nasional Bhd v. Yip Yee Foo & Anor
(Hasnah Mohammed Hashim JC) [2011] 1 CLJ 727 [HC]

CONTRACT

Breach - Damages - Nominal damages - Assessment of damages virtually impossible - Plaintiff awarded nominal damages of a token sum
Tahan Steel Corporation Sdn Bhd v. Bank Islam Malaysia Bhd
(Rohana Yusuf J) [2011] 1 CLJ 755 [HC]

Breach - Damages - Remoteness of damages - Losses caused to customer by bank’s breach of Al-Istisnaa’ facility agreements - Whether losses naturally arising from breach or within reasonable contemplation of both parties as likely to arise from such breach - Whether damages claimed too remote, indirect or unforeseeable - Damage for non-fulfilment of contract - Contracts Act, 1950, ss. 74 & 76
Tahan Steel Corporation Sdn Bhd v. Bank Islam Malaysia Bhd
(Rohana Yusuf J) [2011] 1 CLJ 755 [HC]

Breach - Fundamental breach - Islamic banking - Al-Istisnaa’ facility agreements - Whether defendant had breached facility agreements - Defendant refusing to allow last draw down of facility - Whether plaintiff failed to fulfil condition precedent of facility agreements - Failure of defendant to inform plaintiff regarding non-compliance with condition precedent - Defendant’s conduct causing plaintiff to presume that condition precedent was fulfilled - Whether defendant’s conduct amounted to repudiatory breach
Tahan Steel Corporation Sdn Bhd v. Bank Islam Malaysia Bhd
(Rohana Yusuf J) [2011] 1 CLJ 755 [HC]

Illegality - Contravention of law - Agreement for payment of brokerage commission - Brokers not registered agents under the Valuers, Appraisers and Estate Agents Act 1981 - Fees charged not according to scheduled fees - Agreement for payment of professional fees and charges illegal and/or a sham - Agreement for payment of professional fees and charges unenforceable and void - Stamping of such agreement of no consequence - Valuers, Appraisers and Estate Agents Act 1981,s. 22C(1)(d) - Valuers, Appraisers and Estate Agents Rules 1986, r. 48, sch 7 - Contracts Act 1950, s. 24(a), (b)
Ong Thean Chye & Ors v. Tiew Choy Chai & Anor
(Abdul Malik Ishak, Kang Hwee Gee, Abdul Wahab Patail JJCA) [2011] 1 CLJ 674 [CA]

Privity - Brokerage commission - Agreement for commission made between respondents and third appellant - Claim for unpaid commission made against all three appellants - No privity of contract between respondents and the first and second appellants - Claim against first and second respondents frivolous
Ong Thean Chye & Ors v. Tiew Choy Chai & Anor
(Abdul Malik Ishak, Kang Hwee Gee, Abdul Wahab Patail JJCA) [2011] 1 CLJ 674 [CA]

CRIMINAL LAW

Anti-Corruption Act 1997 - Section 11(a) - Soliciting and accepting RM2,000 as inducement to refrain from taking action against tax payer - Whether prima facie case established - Setting up of trap witnesses and recovery of trap money - Whether corroborative evidence required - Whether delay in delivering grounds of judgment prejudiced appellant -Whether sentence of five months imprisonment and fine of RM10,000 in default four months imprisonment manifestly excessive
Raman Mariappen v. PP
(Abang Iskandar JC) [2011] 1 CLJ 739 [HC]

Dangerous Drugs Act 1952 - Section 39B(1)(a) - Trafficking in 22.88gm of heroin - Drugs found in a plastic container on rear seat of car - Element of knowledge - Whether established - Whether there was a prima facie case of possession under s. 12(2) Dangerous Drugs Act 1952 - Whether accused failed to raise reasonable doubt relating to control or custody of drugs - Whether there was failure to rebut the presumption of possession under s. 37(d) Dangerous Drugs Act 1952 on a balance of probabilities
Mahasin Yazir Mahamad Yusoff v. PP
(Low Hop Bing, Abdul Malik Ishak, KN Segara JJCA) [2011] 1 CLJ 665 [CA]

Penal Code - Section 302 - Murder - Conviction and sentence - Appeal against - Intention to cause bodily injury to victim - Whether proved - Injuries suffered by deceased and manner in which injuries were caused - Penal Code, s. 300 -Common intention - Whether proved - Defence - Bare denials - Whether sufficient to raise reasonable doubt upon prosecution’s case
Peter Merupi & Anor v. PP
(Low Hop Bing, Syed Ahmad Helmy, Mohamed Apandi Ali JJCA) [2011] 1 CLJ 716 [CA]

EVIDENCE

Accomplice - Corruption case - Respondent charged under Anti-Corruption Act 1997, s. 11(a) - Whether complainant an accomplice just because he was a trap witness - Whether corroboration required - Anti-Corruption Act 1997, s. 44(1)(a)(iii)& s. 44(1)(b)
Raman Mariappen v. PP
(Abang Iskandar JC) [2011] 1 CLJ 739 [HC]

Adverse inference - Failure to produce alleged tape recording of corrupt transaction - Whether defence could invoke adverse inference under s. 114(g) Evidence Act 1950 - Quality of recording suspect - Defence objecting to admissibility of recording - Whether prosecution properly refrained from tendering recording as exhibit - Whether amounted to suppression of material evidence - Presumption of adverse inference not invoked
Raman Mariappen v. PP
(Abang Iskandar JC) [2011] 1 CLJ 739 [HC]

Corroboration - Trap witness - Witness taking part in trap set up to arrest appellant - Whether a trap witness -Whether trap witness is an accomplice - Requirement of corroboration of evidence of trap witness - Anti-Corruption Act1997, s. 44(1)(a)(iii) & s. 44(1)(b)
Raman Mariappen v. PP
(Abang Iskandar JC) [2011] 1 CLJ 739 [HC]

FAMILY LAW

Children - Custody - Custody and guardianship of an illegitimate child - Whether could be given to mother of child -Law relating to custody and control of illegitimate infants - Rights of a father of an illegitimate child - Rights of a natural mother of an illegitimate child - Civil Law Act 1956, s. 27
Yap Lee See v. William Tay & Ors
(Yeoh Wee Siam JC) [2011] 1 CLJ 793 [HC]

ISLAMIC LAW

Islamic banking - Al-Istisnaa’ facility agreements - Whether defendant had breached facility agreements - Defendant refusing to allow last drawdown of facility - Whether plaintiff failed to fulfil condition precedent of facility agreements - Failure of defendant to inform plaintiff regarding non-compliance with condition precedent - Defendant’s conduct causing plaintiff to presume that condition precedent was fulfilled - Whether defendant’s conduct amounted to repudiatory breach
Tahan Steel Corporation Sdn Bhd v. Bank Islam Malaysia Bhd
(Rohana Yusuf J) [2011] 1 CLJ 755 [HC]

LAND LAW

Sale of land - Broker’s commission - Brokers not registered agents under the Valuers, Appraisers and Estate Agents Act 1981 - Fees charged not according to scheduled fees - Agreement for payment of professional fees and charges illegal and/or a sham - Agreement for payment of professional fees and charges unenforceable and void - Stamping of such agreement of no consequence - Valuers, Appraisers and Estate Agents Act 1981, s. 22C(1)(d) - Valuers, Appraisers and Estate Agents Rules 1986, r. 48, sch. 7 - Contracts Act 1950, s. 24(a), (b)
Ong Thean Chye & Ors v. Tiew Choy Chai & Anor
(Abdul Malik Ishak, Kang Hwee Gee, Abdul Wahab Patail JJCA) [2011] 1 CLJ 674 [CA]

PROFESSIONS

Valuers, Appraisers and Estate Agents - Estate agency practice - Evidence of - Evidence of system - Single, isolated transaction sufficient where evidence of system established
Ong Thean Chye & Ors v. Tiew Choy Chai & Anor
(Abdul Malik Ishak, Kang Hwee Gee, Abdul Wahab Patail JJCA) [2011] 1 CLJ 674 [CA]

Valuers, Appraisers and Estate Agents - Professional fees - Claim for payment - Agents not registered agents under the Valuers, Appraisers and Estate Agents Act 1981 - Agents running estate agency practice without authority to practice- Fees charged not according to scheduled fees - Agreement for payment of professional fees and charges illegal and/or a sham - Agreement for payment of professional fees and charges unenforceable and void - Stamping of such agreement of no consequence - Valuers, Appraisers and Estate Agents Act 1981, s. 22C(1)(d) - Valuers, Appraisers and Estate Agents Rules1986, r. 48, sch 7 - Contracts Act 1950, s. 24(a), (b)
Ong Thean Chye & Ors v. Tiew Choy Chai & Anor
(Abdul Malik Ishak, Kang Hwee Gee, Abdul Wahab Patail JJCA) [2011] 1 CLJ 674 [CA]

CASE OF THE WEEK

MAGENDRAN MOHAN v. PP

CRIMINAL PROCEDURE: Appeal - Appellate court, power and duty of - Appeal against concurrent findings of fact - Circumstances when appellate interference warranted

CRIMINAL PROCEDURE: Defence - Alibi - Notice of alibi given by accused seven months before trial - Failure of prosecution to rebut or challenge alibi on cross-examination - Defence of alibi credible or raised a reasonable doubt - Criminal Procedure Code, s. 402A

CRIMINAL PROCEDURE: Prosecution - Prima facie case - Maximum evaluation of evidence required at the end of the prosecution's case - Defence ought not to be called on prosecution's failure to establish prima facie case

EVIDENCE: Circumstantial evidence - Securing conviction on - Prosecution's case based entirely on circumstantial evidence - Chain of circumstances broken - Circumstances not linking accused to the commission of the crime - Guilt of accused not proved beyond all reasonable doubt

EVIDENCE: Corroboration - Interested witness - No corroboration of interested witness' evidence - Failure of trial and intermediate appellate judges to direct minds on dangers of convicting on uncorroborated evidence - Serious misdirection by way of non-direction - Miscarriage of justice occasioned - Federal Court interference warranted

EVIDENCE: Identification evidence - Poor quality of - Witness' identification of accused only in the dock some 3-years-4-months from date accused first seen by witness - Witness identifying accused in the dock on orders of the police - Accused not previously known to witness - No identification parade held by police - Such evidence of identification ought to be rejected

EVIDENCE: Inference - Drawing of - Two possible inferences - Court to draw inference most favourable to accused

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