Legal Network Series

[2011] 1 LNS 1786	CHANDRAN MUTHU v. SEK (MALAYSIA) SND BHD & ANOR	CIVIL PROCEDURE: Appeal - Appeal against decision of Sessions Court - Finding that both parties equally liable for accident - Whether position of vehicles after accident was more in tandem and consistent with plaintiff's version - Whether second defendant wholly contributed towards the accident as he had encroached or turned against right of way of motorcyclist when he suddenly turned to the right to make a u-turn - Whether late reporting by plaintiff of accident had adverse bearing on his credibility - Whether Sessions Court Judge wrong in treating late reporting as giving sufficient time to plaintiff to be more creative in making a police report that was in his favour - Whether Sessions Court Judge erred and misdirected herself when she found plaintiff and second defendant equally accountable for causing accident CIVIL PROCEDURE: Appeal - Appeal against decision of Sessions Court - Damages - Appeal against award of RM18,000 for close intertrochanteric fracture of right femur which resulted in shortening of plaintiff's right lower limb - Whether award was manifestly low - Whether RM40,000, was more appropriate amount for this head of general damages
[2011] 1 LNS 1838	KWAN CHEE HANG SDN BHD & ORS v. ZUNG ZANG WOOD PRODUCTS SDN BHD & ORS & ANOTHER CASES	CIVIL PROCEDURE: Limitation of action - When cause of action accrued - Fraud - Whether plaintiff's claims time barred - Whether plaintiffs entitled to rely on s. 18 of the Sabah Limitation Ordinance - Fraudulent acts committed by 4th Defendant only discovered in 2006 - Whether suits filed in 2008 were within limitation period CIVIL PROCEDURE: Pleadings - Fraud - Whether Statements of Claim contained necessary material particulars of fraud EQUITY: Fraud in equity - Fiduciary relationship - Whether fraud committed by 4th Defendant fell under 'equitable fraud' namely, use of power to procure a bargain or gift, resulting in disadvantage to the other party or conflict of interest against a duty arising from a fiduciary relationship - Whether 4th Defendant abused his position as a director to fraudulently procure execution of resolution so that he could gain absolute control over plantation lands for himself and his wife - Whether 4th Defendant's acts were in breach of the Companies Act, 1965 - Whether plaintiffs adduced sufficient evidence to prove the same beyond reasonable doubt
[2011] 1 LNS 1848	PP v. HARINDRAN VEERAJAH & ORS	CRIMINAL LAW: Penal Code - ss. 34, 302 - Murder - Common intention - Prima facie case - Conduct of the 4 accused together with other assailants still at large - Whether the court could draw an irresistible inference that all of them had a common intention to cause the death of the deceased - Whether prosecution succeeded in proving on a prima facie basis the necessary ingredients of the charge against all 4 accused - Whether all 4 accused should be ordered to enter their defence to the charge CRIMINAL PROCEDURE: Trial - Defence's story - Statements of 1st, 2nd and 4th accused - Whether their explanations were plausible and cast a doubt on the prosecution case - Whether 3rd accused's defence was inconsistent with his innocence and concocted to extricate him from the serious charge facing him - Whether defence of each of the 4 accused and their combined defence failed to raise a reasonable doubt in the prosecution's case - Whether 4 accused together with rest of assailants still at large had, pursuant to their common intention, caused the death of the deceased - Whether they had, pursuant to their common intention, caused such injuries to the deceased as would in the ordinary course of events cause the death of the deceased - Whether prosecution proved the charges against each of the 4 accused beyond reasonable doubt
[2012] 1 LNS 1304	FIRST ACORN (M) SDN BHD v. LAI KOON TEE	CONTRACT: Sale and purchase of property - Sale and purchase agreement - Termination - Whether enforcement of agreement was conditional upon execution of the conditions precedent within the prescribed period - Whether failure to fulfill these conditions within 3 months rendered agreement unenforceable - Whether agreement lapsed due to effluxion of time - Whether it was terminated in accordance with clause in agreement LAND LAW: Caveats - Removal of - Whether caveat should be removed - Whether defendant had any right over the property and locus to caveat the property - Whether delay of about 16 months in instituting proceedings after lodgment of the caveat without any reasonable explanation was inordinate - Whether caveat should be removed - Whether plaintiff should be further restrained from dealing with the property
[2013] 1 LNS 425	CHAN YOKE SIM v. CHOONG TECK FOOK & ORS	TORT: Defamation - Libel - Whether words or statements complained of as contained in the articles referred to plaintiff - Whether words or statements as contained in the articles were defamatory - Whether words or statements contained in the articles were published to a third party - Defence - Qualified privilege - Whether defendants were protected by defence of qualified privilege - Whether there was presence of malice to negate defence of qualified privilege

CLJ 2014 Volume 1 (Part 6)

COURT

COURT OF APPEAL

Ahmad Zubair Hj Murshid v. PP
Azahar Mohamed, Rohana Yusuf, Hamid Sultan Abu Backer JJCA
(Civil Procedure; Constitutional Law - Courts - Jurisdiction - Inherent powers to set aside and quash charges) [2014] 1 CLJ 697 [CA]

Bandahala Undik v. PP
Ramly Ali, Mohtarudin Baki, Hamid Sultan Abu Backer JJCA
(Criminal Law; Evidence - Murder - Dying declaration – Admissibility) [2014] 1 CLJ 708 [CA]

Master Brisbane Itang v. Robinson Lee & Ors
Hishamudin Mohd Yunus, Abdul Wahab Patail, Balia Yusof Wahi JJCA
(Tort - Negligence - Duty of care - Vaccination against Japanese Encephalitis virus) [2014] 1 CLJ 726 [CA]

HIGH COURT

Majlis Bandaraya Melaka Bersejarah lwn. Eyo-Li Sdn Bhd
Zulkifli Bakar H
(Kerajaan Tempatan; Perkataan Dan Istilah - Cukai taksiran - Tuntutan) [2014] 1 CLJ 733 [HC]

Mohd Saufi Taib & Ors v. CIMB Islamic Bank Bhd
Lau Bee Lan J
(Contract; Tort - Breach - Defamation - Libel) [2014] 1 CLJ 774 [HC]

NBH Sdn Bhd v. Tanjung Balai Quarry Sdn Bhd
SM Komathy Suppiah JC
(Civil Procedure - Amendment - Order - Res judicata - Principles) [2014] 1 CLJ 793 [HC]

Seema Development Sdn Bhd v. Mah Kim Chye
Lee Swee Seng JC
(Civil Procedure; Limitation - Execution - Delay - Limitation of 12 years) [2014] 1 CLJ 804 [HC]

SUBJECT INDEX

CIVIL PROCEDURE

Amendment - Order - Application to amend order - Claim for judgment sum including post-judgment interest - Claim allowed but no provision nor mention on post-judgment interest made in grounds of judgment and order - Whether plaintiff entitled to post-judgment interest - Whether order could be amended to insert additional clause requiring defendant to pay post-judgment interest - `Slip rule' - Whether application within scope of slip rule - Whether accidental omission in judgment could be corrected under slip rule by judge who did not pronounce it - Rules of Court 2012, O. 20 r. 11
NBH Sdn Bhd v. Tanjung Balai Quarry Sdn Bhd
(SM Komathy Suppiah JC) [2014] 1 CLJ 793 [HC]

Execution - Delay - Limitation of 12 years - Application for leave to execute judgment after 12 years - Whether allowed - Whether defendant should have appealed against ex parte order for leave - Whether doctrine of estoppel applied to extend period of 12 years - Limitation Act 1953, s. 6(3)
Seema Development Sdn Bhd v. Mah Kim Chye
(Lee Swee Seng JC) [2014] 1 CLJ 804 [HC]

Res judicata - Principles - Claim for judgment sum including post-judgment interest - Claim allowed but no provision nor mention on post-judgment interest made in grounds of judgment and order - Defendant's refusal to pay post-judgment interest - Application to amend order to insert additional clause requiring defendant to pay post-judgment interest - Whether application barred by doctrine of res judicata
NBH Sdn Bhd v. Tanjung Balai Quarry Sdn Bhd
(SM Komathy Suppiah JC) [2014] 1 CLJ 793 [HC]

Striking out - Application for - Application to set aside and strike off charges against appellant - Charges - Whether flawed and defective - Whether specified direction of law or legal contract on discharge of trust - Whether fatal - Whether premature for court to decide on issues raised - Whether prosecution precluded from adducing relevant evidence - Whether proper case for court to exercise inherent powers to quash charges - Whether charges mala fide, oppressive and an abuse of court process - Criminal Procedure Code, ss. 51A, 156 & 173
Ahmad Zubair Hj Murshid v. PP
(Azahar Mohamed, Rohana Yusuf, Hamid Sultan Abu Backer JJCA) [2014] 1 CLJ 697 [CA]

CONSTITUTIONAL LAW

Courts - Jurisdiction - Inherent powers to set aside and quash charges - Whether court has general power to quash charge where an indictment has been preferred - Whether court could only exercise its inherent powers when there is miscarriage of justice - Whether charges mala fide, oppressive and an abuse of court process
Ahmad Zubair Hj Murshid v. PP
(Azahar Mohamed, Rohana Yusuf, Hamid Sultan Abu Backer JJCA) [2014] 1 CLJ 697 [CA]

CONTRACT

Breach - Negligence - Failure to credit cheques - Whether unforeseeable technical problems in Cheque Truncation and Conversion System resulted in delay of crediting cheques - Whether there were sufficient funds in client's current account
Mohd Saufi Taib & Ors v. CIMB Islamic Bank Bhd
(Lau Bee Lan J) [2014] 1 CLJ 774 [HC]

CRIMINAL LAW

Murder - Penal Code, s. 302 - Appeal against conviction and sentence - Dying declaration - Identification of accused - Relevancy of statement - Cause of death - Whether breached hearsay rule - Whether concept of res gestae, dying declaration and provision under s. 32(1)(a) Evidence Act 1950 assisted prosecution to sustain charge - Failure to tender medical or post mortem report - Failure to call medical officer who ascertained cause of death to testify - Whether medical officer's report admitted under s. 32(1)(j) Evidence Act 1950 - Whether cause of death can be ascertained by direct evidence or patent injuries on body - Whether conviction and sentence affirmed
Bandahala Undik v. PP
(Ramly Ali, Mohtarudin Baki, Hamid Sultan Abu Backer JJCA) [2014] 1 CLJ 708 [CA]

EVIDENCE

Dying declaration - Admissibility - Evidence Act 1950, s. 32(1)(a) - Whether Evidence Act 1950 defines dying declaration - Whether statement must consists of cause of death or transaction which resulted in death - Whether assisted prosecution to sustain charge of murder - Legal maxim - Nemo moriturus praesumitur mentire
Bandahala Undik v. PP
(Ramly Ali, Mohtarudin Baki, Hamid Sultan Abu Backer JJCA) [2014] 1 CLJ 708 [CA]

LIMITATION

Execution of judgment - Limitation of 12 years - Whether application for leave to execute judgment after 12 years ought to be set aside - Whether defendant should have appealed against ex parte order for leave - Whether doctrine of estoppel applied to extend period of 12 years - Limitation Act 1953, s. 6(3)
Seema Development Sdn Bhd v. Mah Kim Chye
(Lee Swee Seng JC) [2014] 1 CLJ 804 [HC]

TORT

Defamation - Libel - Publication of words on return cheque advice - Whether words "refer to drawer" amounted to libel - Whether defence of qualified privilege applicable
Mohd Saufi Taib & Ors v. CIMB Islamic Bank Bhd
(Lau Bee Lan J) [2014] 1 CLJ 774 [HC]

Negligence - Duty of care - Failure to vaccinate pupils of school against Japanese Encephalitis (JE) virus - Whether there is specific legislation imposing duty on Ministry of Health to immunise school pupils - Whether there had been recent outbreak of JE virus in areas nearby school - Implementation of vaccination program - Whether required cooperation of other governmental agencies - Shortages of vaccines and budget constraints - Factors considered - Whether fair and reasonable to impose common law duty of care on Ministry of Health to immunise plaintiff - Whether would open floodgate of litigation
Master Brisbane Itang v. Robinson Lee & Ors
(Hishamudin Mohd Yunus, Abdul Wahab Patail, Balia Yusof Wahi JJCA) [2014] 1 CLJ 726 [CA]

INDEKS PERKARA

KERAJAAN TEMPATAN

Cukai taksiran - Tuntutan - Pegangan - Parsel dalam kompleks membeli-belah - Harta tanpa hak milik strata - Pemilikan harta dibuktikan oleh perjanjian jual beli dan perjanjian penyerahanhak - Sama ada cukai taksiran perlu dibayar oleh pemilik harta atau pemilik berdaftar tanah kompleks membeli-belah - Akta Kerajaan Tempatan 1976
Majlis Bandaraya Melaka Bersejarah lwn. Eyo-Li Sdn Bhd
(Zulkifli Bakar H) [2014] 1 CLJ 733 [HC]

Perkataan dan ISTILAH

"any person liable to pay the same" - Makna - Tunggakan cukai - Sama ada merujuk kepada "current owners" - Akta Kerajaan Tempatan 1976, s. 156
Majlis Bandaraya Melaka Bersejarah lwn. Eyo-Li Sdn Bhd
(Zulkifli Bakar H) [2014] 1 CLJ 733 [HC]