Legal Network Series

[2010] 1 LNS 17	HY-LINK IMPORT & EXPORT SDN BHD v. LEE BISCUITS PTE LTD	CONTRACT: Validity - Distributorship Agreement - Whether defendant appointed plaintiff as its sole and exclusive distributor for territories - Whether Distributorship Agreement vide letter of appointment valid COMPANY LAW: Indoor management rule - Defendant's domestic sales manager and sales operation manager involved in whole transaction - Whether plaintiff entitled to assume that letter of appointment had been properly and validly issued by domestic sales manager - Whether plaintiff obliged to enquire whether defendant's domestic sales manager or sales operation manager had authority to enter into Distributorship Agreement with plaintiff CONTRACT: Breach - Whether defendants breached the Distributorship Agreement
[2010] 1 LNS 672	SHAHRIL ASSOCIATED ADVERTISING & DESIGN SDN BHD & ORS v. IKHTIAR FACTORING SDN BHD	CONTRACT: Assignment - Factoring Agreement - Procedure adopted under Agreement - Whether defendant's obligation to release 80% (77%) to plaintiffs was subject to confirmation of delivery of services contracted - Whether defendant permitted to change requirements - Whether defendant estopped from requiring evidence of delivery or performance - Plaintiff complied with changed requirements without protest - Whether too late for plaintiffs to complain CONTRACT: Assignment - Factoring Agreement - Defendant's rejection of sales contract for RM95,419.50 - Deduction of this sum and balance of the sales contract for RM4,309.50 - Whether deductions for these two amounts was wrong and in breach of the factoring and advance loan agreements
[2010] 1 LNS 995	MOHD AZLI ABD AZIZ v. DATUK AINON MARZIAH WAHI & ORS	CIVIL PROCEDURE: Originating Summons - Failure to include "sufficient particulars to identify the cause or causes of action relating to plaintiff's claims" - Non-compliance with theRules of the High Court 1980, O. 7 r. 3(1) - Whether Originating Summons should be dismissed TRUSTS AND TRUSTEES: Breach of Trust - Dissolution of PETRONAS Retirement Benefit Scheme (PRBS) - Whether PETRONAS could decide to stop contributing to the PRBS - Whether defendants exceeded their authority and breached the terms of the Trust Deed - Whether steps taken by defendants to dissolve the PRBS were in accordance with provisions of Trust Deed which was varied to allow for a voluntary dissolution of the scheme - Whether approval of Lembaga Hasil Dalam Negeri for the variation and subsequent dissolution obtained - Whether PRCS was disadvantageous to the plaintiff and members of the dissolved PRBS
[2010] 1 LNS 998	HUE CHOOI YIN v. CHEW PIT KING	CIVIL PROCEDURE: Res judicata - Decision - Respondent's previous application under O. 14A of the Rules of the High Court 1980 - Judge expressing his opinion regarding status of marriage of petitioner to CCM - Facts of case seriously disputed by both parties - Whether Court bound by the former Judge's decision made under Order 14A of the Rules of the High Court 1980 EQUITY: Estoppel - Estoppel by representation - CCM's representation to petitioner that he was separated from his first wife and free to marry petitioner at any time - Whether estoppel should be invoked to prevent respondent or CCM's estate from questioning validity of petitioner's customary marriage to CCM on 5 Mei 1979 - Whether estoppel could be invoked against respondent and CCM's estate to declare petitioner the lawful wife of CCM - CCM's marriage to first wife registered under the Civil Marriage Ordinance 1952 (CMO) - Whether estoppel could be used to defeat the statutory provisions of the CMO FAMILY LAW: Marriage - Customary marriage - Declaration of marital status - Petitioner cohabited with CCM and had given birth to 2 children - CCM never divorced from first wife until her death and never married petitioner after her death - Customary marriage of petitioner to CCM never registered under the Civil Marriage Ordinance 1952 (CMO) and/or the Law Reform (Marriage and Divorce Act) 1976 (LRA) - Whether there was a customary marriage between petitioner and CCM on 5 May 1979 - If so, whether such marriage valid under the CMO and/or the LRA - Whether circumstances gave rise to a legal marriage under the CMO and the LRA between petitioner and CCM prior to and after demise of first wife - Whether the Court could make the declarations sought by petitioner
[2010] 1 LNS 1041	LIM GEOK MUI v. TIMBALAN MENTERI DALAM NEGERI, MALAYSIA & ORS	CRIMINAL LAW: Dangerous Drugs (Special Preventive Measures) Act 1985, s. 3(1) - Detention order - Order challenged as invalid, null and void and of no legal effect - Failure to prove existence of the report of arrest and detention made by Deputy Superintendant - Failure to inform plaintiff of reason for her arrest in breach of Article 5 and 151 (1) (a) of the Federal Constitution - Whether Investigation Officer and Inquiry Officer complied with the requirements of ss. 3(3) and 5(4) - Whether Deputy Minister complied with the two conditions precedent before making the detention order - Whether plaintiff proved any procedural breach in the making of the detention order

CLJ 2013 Volume 2 (Part 1)

COURT

[SC INDIA]

Anand Mohan v. State Of Bihar
AK Patnaik, Swatanter Kumar JJ
(Criminal Procedure; Evidence - Criminal Procedure Code, 1973 - Section 154 - FIR) [2013] 2 CLJ 1 [SC India]

COURT OF APPEAL

Muhammad Nizam Ishak & Satu Lagi lwn. PP
KN Segara, Azahar Mohamed, Abdul Aziz Rahim HHMR
(Prosedur Jenayah; Undang-undang Jenayah - Rayuan - Sama ada sabitan s. 39B(1)(a) selamat - Sama ada anggapan s. 37(d) terpakai) [2013] 2 CLJ 32 [CA]

PP v. Mahathir Muhammad
Hishamudin Mohd Yunus, Azahar Mohamed, Aziah Ali JJCA
(Criminal Procedure - Appeal - Whether only question of law appealable to Court of Appeal - Rationale) [2013] 2 CLJ 50 [CA]

Wan Khairani Wan Mahmood v. Sri Alam Sdn Bhd
Zainun Ali FCJ, Ramly Ali, Zaharah Ibrahim JJCA
(Trusts - Resulting trust - Transfer of shares without consideration) [2013] 2 CLJ 63 [CA]

HIGH COURT

Chong Chen Foh v. Tan Lai Soon
Umi Kalthum Abd Majid J
(Legal Profession - Advocates and solicitors - Misconduct - Whether there was sufficient appreciation of evidence) [2013] 2 CLJ 78 [HC]

Jenain Subi v. PP
Abdul Rahman Sebli J
(Criminal Law - Murder - Intention - Accused a corporal with Royal Malaysian Police) [2013] 2 CLJ 92 [HC]

Madlis Azid & Ors v. Chua Yung Kim & Ors
Supang Lian J
(Civil Procedure - Contempt of court - Rules of the High Court 1980, O. 45 r. 7(7)) [2013] 2 CLJ 110 [HC]

Takaful Nasional Bhd v. Nooraizan Mohd Tahir & Anor
Ravinthran Paramaguru JC
(Civil Procedure; Damages: Industrial Court - Judicial review - Application to quash award by Industrial Court - Non-confirmation of employee's position by end of extended probation period) [2013] 2 CLJ 121 [HC]

SUBJECT INDEX

CIVIL PROCEDURE

Contempt of court - Order of committal, application for - Notice of motion - Failure to comply with court order - Whether plaintiff permitted to cite first defendant for contempt notwithstanding order of court not personally served - Whether court to dispense with service of order - Rules of the High Court 1980, O. 45 r. 7(7) - Whether defences raised devoid of merits - Whether first defendant in wilful and contumelious breach of order of court - Whether proven beyond reasonable doubt - Whether first defendant found guilty of contempt of court
Madlis Azid & Ors v. Chua Yung Kim & Ors
(Supang Lian J) [2013] 2 CLJ 110 [HC]

Judicial review - Application to quash award by Industrial Court - Non-confirmation of employee's position by end of extended probation period - Lapse of three years - Employee gainfully employed by another employer - Compensation - Whether Industrial Court had contravened s. 54(2) Industrial Relations Act 1967 - Jurisdiction of Industrial Court - Whether target set for employee, managerial prerogative - Whether Industrial Court Chairman erred in arriving at decision
Takaful Nasional Bhd v. Nooraizan Mohd Tahir & Anor
(Ravinthran Paramaguru JC) [2013] 2 CLJ 121 [HC]

CRIMINAL LAW

Murder - Intention - Penal Code, s. 304(a) - Appeal against conviction and sentence - Accused a corporal with Royal Malaysian Police - Deceased shot by accused while being chased by police - Whether accused had knowledge that injury likely to cause death - Whether accused had intention to cause death - Whether intention and knowledge are distinct elements to prove offence - Whether appeal allowed
Jenain Subi v. PP
(Abdul Rahman Sebli J) [2013] 2 CLJ 92 [HC]

Penal Code, s. 304(a) - Appeal against conviction and sentence - Accused a corporal with Royal Malaysian Police - Deceased shot by accused while being chased by police - Whether accused had intention to cause death - Whether accused had knowledge that injury likely to cause death - Whether intention and knowledge are distinct elements to prove offence - Whether appeal allowed
Jenain Subi v. PP
(Abdul Rahman Sebli J) [2013] 2 CLJ 92 [HC]

CRIMINAL PROCEDURE

Appeal - Appeal from Magistrate Court - Notice of Appeal - Requirements - Whether only question of law appealable to Court of Appeal - Rationale - Minimal risk of injustice - Whether failure to raise pure question of law rendered appeal dismissed - Courts of Judicature Act 1964, s. 50(2), (2A), (3)
PP v. Mahathir Muhammad
(Hishamudin Mohd Yunus, Azahar Mohamed, Aziah Ali JJCA) [2013] 2 CLJ 50 [CA]

Criminal Procedure Code, 1973 - Section 154 - FIR - Generally - What amounts to and requirements of FIR - Cryptic information/messages not to be treated as FIR - Whether wireless message sent soon after incident was real FIR as contended on behalf of defence or whether typed report subsequently lodged by PW14 (DSP) in police station was FIR, as contended on behalf of prosecution - Determination of - As per s. 154(1), every information relating to commission of a cognizable offence, whether given in writing or reduced into writing, has to be signed by person giving it - Hence, held, person who gives information and who has to sign information, has to choose which particular information relating to commission of a cognizable offence is to be treated as an FIR - Herein, PW14 chose not to treat wireless message but subsequent typed information as FIR and police had also not treated wireless message but subsequent typed information as FIR - Moreover, wireless message was cryptic and did not sufficiently disclose nature of offence committed much less identity of persons who committed offence - Unless and until more information was collected on how exactly deceased was killed, it being a case of murder, it was not mandatory for either PW14 to lodge wireless message as FIR or for officer in charge of police station to treat the same as FIR - Such cryptic information has been held by Supreme Court not to be FIR in a number of cases - Therefore, courts below rightly treated subsequent typed written information lodged by PW14 and not the wireless message as FIR - Penal Code, 1860, ss. 302/109 - Abetment of murder
Anand Mohan v. State Of Bihar
(AK Patnaik, Swatanter Kumar JJ) [2013] 2 CLJ 1 [SC India]

Criminal Procedure Code, 1973 - Section 154 - Whether FIR antedated and ante-timed - Determination of - On basis of all evidence on record, High Court held that evidence created a reasonable suspicion about FIR being antedated and ante-timed - Held, there is no error in this finding of High Court - Penal Code, 1860 - Sections 302/109 - Abetment of murder
Anand Mohan v. State Of Bihar
(AK Patnaik, Swatanter Kumar JJ) [2013] 2 CLJ 1 [SC India]

Criminal Trial - Sentence - Death sentence - Commutation to life when warranted - Abetment of murder - In a funeral procession, accused exhorting lone killer to shoot victim, leading to his death - Held, as accused was not assailant himself, RI for life and not death sentence, would be appropriate sentence - Hence, High Court was correct in converting death sentence of accused to RI for life - Penal Code, 1860, sections 302/109
Anand Mohan v. State Of Bihar
(AK Patnaik, Swatanter Kumar JJ) [2013] 2 CLJ 1 [SC India]

DAMAGES

Quantum - Punitive or exemplary damages and higher damages - Discretion and reasonableness of award - Whether compelling grounds for award of exemplary or punitive damages furnished
Takaful Nasional Bhd v. Nooraizan Mohd Tahir & Anor
(Ravinthran Paramaguru JC) [2013] 2 CLJ 121 [HC]

EVIDENCE

Criminal Trial - Appreciation of Evidence - Credibility of witness - Credibility of witnesses - Established - Abetment of murder - Exhortation to kill - Culpability for, under s. 109 r/w section 302 IPC - Conviction of accused for exhorting lone killer to shoot dead victim, a District Magistrate (DM), in a surcharged riotous atmosphere, which shooting led to death of DM - Conviction under section 109 r/w section 302 IPC, confirmed - Herein, C and his associates were murdered by some unknown criminals - After post-mortem, body of C was taken in a procession to his ancestral house in village, which was escorted by officers of civil and police administration, in which A-1 to A-7 were also present - A-1 to A-3 gave speeches instigating crowd to take revenge for this murder and to teach administration a lesson if it created any hurdle - Thereafter, assembled people became aggressive - When procession was on national highway, car of a DM (deceased victim) came from opposite direction - On exhortation by accused, B (brother of C) shot the DM who got wounded and eventually died in the hospital - High Court on basis of evidence of PWs 1, 3, 4, 9, 10 and 14 (all police officials claiming to be with or behind procession till incident occurred) held that A-1 had exhorted lone shooter to kill deceased and hence he alone was guilty of offence of abetment of murder under sections 302/109 IPC - Accordingly, High Court acquitted A-2 to A-7 of all charges and sustained conviction of A-1 - Further, High Court held that attack on car of deceased and its occupants was a sudden act of mob fury which had gathered to watch funeral procession - Thus, processionists did not have any common object and therefore did not constitute an unlawful assembly and hence A-1 to A-7 could not be held liable for offence under sections 302/149 IPC - Held, ten out of fourteen witnesses who were accompanying procession and were near place of occurrence, have given a consistent version that A-1 exhorted B to shoot at deceased - Hence, just because four of fourteen witnesses have not deposed regarding exhortation by A-1, it cannot be held that ten witnesses have falsely deposed - Accordingly, High Court has rightly recorded finding that only A-1 exhorted lone shooter to kill deceased and was guilty of offence of abetment under section 109 IPC and was liable for punishment under sections 302/109 IPC for murder of deceased and A-2, A-3 and A-4 have to be acquitted of charges under sections 302/109 IPC - Further, held, High Court rightly rejected contention of prosecution that A-1 to A-7 were liable for conviction under sections. 302/149 IPC - Penal Code, 1860 - Sections 302/109 or 302/149 - Exhortation (paras 57 to 72)
Anand Mohan v. State Of Bihar
(AK Patnaik, Swatanter Kumar JJ) [2013] 2 CLJ 1 [SC India]

Criminal Trial - Appreciation of Evidence - Credibility of witness - Credibility of witnesses - If established - Abetment of murder - Culpability for exhortation - Conviction of accused for exhorting lone killer to shoot victim, leading to his death - Contention of defence that High Court did not take into consideration evidence of PW17 and PW21, who were driver and bodyguard of deceased respectively, and who did not support prosecution case - Tenability - Held, both PWs17 and 21 were silent with regard to exhortation by A-1 to B to shoot at deceased - Clearly, PWs17 and 21 were not aware of any shooting incident at all and they were under impression that deceased had been injured by assault of mob after they were pulled out from car as they did not seem to know what exactly happened thereafter, as they were beaten up by mob - On basis of their evidence, court cannot discard evidence of ten other witnesses, that deceased was shot by B with revolver on exhortation of A-1 when medical evidence established that cause of death of deceased was on account of bullet injuries on deceased and not assault by mob - Moreover, PWs17 and 21 may not have supported prosecution case but their evidence also does not belie prosecution case that deceased was shot by B on exhortation by A-1 - Penal Code, 1860, sections 302/109
Anand Mohan v. State Of Bihar
(AK Patnaik, Swatanter Kumar JJ) [2013] 2 CLJ 1 [SC India]

Criminal Trial - Injuries, Wounds and Weapons - Firearm/ Gunshot injuries/wounds/Ballistics/Ballistic expert - Abetment of murder - Submission of defence that witnesses deposed that deceased was shot by B when he was lying injured on ground but medical evidence established that bullets were fired when deceased was in a standing position, and thus evidence of such witnesses should be discarded - Tenability - Held, evidence of PW16 (doctor who carried out post-mortem) is clear that projectile may travel in body even in standing or sleeping position - Therefore, it cannot be held that medical evidence is such as to entirely rule out truth of evidence of prosecution witnesses that deceased was shot when he was lying injured on ground - Penal Code, 1860, sections 302/109
Anand Mohan v. State Of Bihar
(AK Patnaik, Swatanter Kumar JJ) [2013] 2 CLJ 1 [SC India]

Evidence Act, 1872 - Section 103 - Prosecution establishing guilt of accused - Burden of proving innocence lies on accused - Abetment of murder - Prosecution establishing that A-1 had exhorted B to shoot deceased - A-1 seeking to establish that he was elsewhere, so could not have exhorted B - A-1 failing to prove this alibi - In instant case, since accused had not discharged this burden, High Court, held, was right in holding that he was guilty of offence under sections 302/109 IPC - Penal Code, 1860 - Sections 302/109 - Criminal Procedure Code, 1973 - Section 313 - Criminal Trial - Defence - Generally - Criminal Trial - Defence - Generally
Anand Mohan v. State Of Bihar
(AK Patnaik, Swatanter Kumar JJ) [2013] 2 CLJ 1 [SC India]

INDUSTRIAL COURT

Dismissal - Extension of probation period - Claim on non-performance of employee - Non-confirmation of employee's position by end of extended probation period - Whether dismissal justified - Industrial Relations Act 1967, s. 54
Takaful Nasional Bhd v. Nooraizan Mohd Tahir & Anor
(Ravinthran Paramaguru JC) [2013] 2 CLJ 121 [HC]

LEGAL PROFESSION

Advocates and solicitors - Misconduct - Suspension from practice - Appeal against - Findings and recommendations of Disciplinary Committee and Disciplinary Board - Whether there was sufficient appreciation of evidence - Whether irrelevant considerations taken into account - Whether Disciplinary Committee misdirected itself in finding appellant culpable of deceit, misrepresentation and guilty of gross improper conduct - Whether appeal allowed
Chong Chen Foh v. Tan Lai Soon
(Umi Kalthum Abd Majid J) [2013] 2 CLJ 78 [HC]

TRUSTS

Resulting trust - Intention to create trust - Transfer of shares without consideration - Allegation of shares held on trust - Burden to prove existence of trust - Whether intention to create trust established - Whether documentary evidence adduced to prove existence of trust - Whether appellant a mere nominee - Whether appellant held shares as registered and beneficial owner - Takako Sakao v. Ng Pek Yuen & Anor
Wan Khairani Wan Mahmood v. Sri Alam Sdn Bhd
(Zainun Ali FCJ, Ramly Ali, Zaharah Ibrahim JJCA) [2013] 2 CLJ 63 [CA]

INDEKS PERKARA

PROSEDUR JENAYAH

Rayuan - Rayuan terhadap sabitan dan hukuman - Pengedaran dadah berbahaya - Sama ada keraguan terhadap unsur pemilikan bersama dan niat bersama berjaya dibangkitkan - Sama ada anggapan s. 37(da)(vi) berjaya disangkal - Sama ada sabitan s. 39B(1)(a) selamat - Sama ada anggapan s. 37(d) terpakai - Akta Dadah Berbahaya 1952, ss. 6, 37(d), (da)(vi), 39B(1)(a)
Muhammad Nizam Ishak & Satu Lagi lwn. PP
(KN Segara, Azahar Mohamed, Abdul Aziz Rahim HHMR) [2013] 2 CLJ 32 [CA]

UNDANG-UNDANG JENAYAH

Akta Dadah Berbahaya 1952 - Section 39B(1)(a) - Pengedaran - Sabitan - Sama ada keraguan terhadap unsur pemilikan bersama dan niat bersama berjaya dibangkitkan - Sama ada anggapan
s. 37(da)(vi) berjaya disangkal - Sama ada sabitan s. 39B(1)(a) selamat
Muhammad Nizam Ishak & Satu Lagi lwn. PP
(KN Segara, Azahar Mohamed, Abdul Aziz Rahim HHMR) [2013] 2 CLJ 32 [CA]

Legal Network Series Article

1. AN ANATOMY ON INCORRECT RETURN PENALTY AND INLAND REVENUE’S POWER IN TAX AUDIT ^{[Read excerpt]}
by: DR. CHOONG KWAI FATT [2013] 1 LNS(A) x

Principal Acts

Amending Acts

PU(A)

PU(B)