Legal Network Series

[2012] 1 LNS 683	WABBY REMIS (F) v. MOHD SHOKRI AHMAD FAUZI	CIVIL PROCEDURE: Appeal - Appeal against decision of sessions court - Appeal to High Court - Whether there was justification in appellant's submission that the Sessions Court Judge had made a mechanical apportionment of liability merely because "somebody must be at fault" - Whether as Sessions Court Judge was unable to determine who was at fault she ought to have dismissed the claim - Effect of concession of counsel for appellant on liability - Whether counsel for appellant could resile from the concession made in the lower court
[2012] 1 LNS 684	PP v. CHALOEMLAK NAKKOED	CRIMINAL PROCEDURE: Trial - Dangerous Drugs Act 1952 - Prosecution's case - Prima facie case - Whether accused had possession of 2 batches of drugs - Whether accused had custody, control and power of disposal over the bag (P17) in which the drugs were found and over the drugs in her abdomen - Whether accused had knowledge of the 32 capsules containing drugs inside her Minerva bag - Whether accused knew that she was carrying drugs in her body - Whether prosecution established a prima facie case against accused for 2 counts of drug trafficking CRIMINAL PROCEDURE: Trial - Dangerous Drugs Act 1952 - Defence's story - Whether accused's explanation was reasonable and consistent with her innocence - Whether accused rebutted presumption that she was trafficking in the drugs - Whether defence failed to cast a doubt on prosecution case - Whether prosecution proved beyond reasonable doubt that the accused was trafficking in drugs
[2012] 1 LNS 741	PP v. SADHIK AMIN ABDUL ALEEF	CRIMINAL PROCEDURE: Trial - Dangerous Drugs Act 1952 - Prosecutions' case - Whether 2 luggage bags containing said drugs were under the custody and control of accused - Whether deeming provision under s. 37(d) of the DDA properly invoked - Whether accused deemed to have been in possession of such drug and to have known nature of such drug - Whether prosecution made out a prima facie case against accused CRIMINAL PROCEDURE: Trial - Dangerous Drugs Act 1952 - Defence's story - Denial of possession of and having knowledge of drugs - Whether defence created a reasonable doubt upon prosecution's case - Whether defence had, on a balance of probabilities, rebutted statutory presumption invoked against him - Whether accused rebutted deemed possession of drugs and deemed knowledge of nature of drugs - Whether such denial sufficient without other proof to reasonably dislodge the prosecution's case and to rebut the presumption against accused - Whether prosecution successfully proven offence against accused beyond a reasonable doubt EVIDENCE: Exhibit - Break in chain of evidence - Whether there were material gaps in prosecution's case - Whether there was a break in the chain of evidence relating to drugs and its movement from time of its seizure to time drugs were analysed by the chemist and from the chemist to its final production in court
[2012] 1 LNS 744	TEBING AUR SDN BHD v. WWE HOLDINGS BHD	CONTRACT: Building contract - Breach - Work done - Interpretation - Method to evaluate and calculate total value of the works executed by plaintiff for the contract period - Whether only method agreed and approved by parties under the Deed was by way of Joint Evaluation Meeting and Inspection for Final Measurement conducted on the Cut Off Date - Whether parties still in process of ascertaining and finalising Final Account - Whether defendant in breach of its obligation under clause (f) of the Deed to certify the Final Account within 14 days of submissions by plaintiff to defendant - Whether defendant owed plaintiff for works executed at the site during the contract period as claimed and reflected in plaintiff's Final Claim - Whether total value of works completed by plaintiff during relevant period should be assessed by an independent consultant QS - Whether defendant entitled to claim for defect work back charges and for defect works
[2012] 1 LNS 745	SHIVDEV SINGH LAL HARCHARAN SINGH & ANOR v. DINDINGS PLANTATIONS SDN BHD & ORS	COMPANY LAW: Directors - Removal - Whether defendants entitled to cause the removal of plaintiffs at EGM on ground their appointment was invalid - Whether Chairman by ruling and taking stand that plaintiffs' appointment was invalid had gone beyond scope of his duties and responsibilities - Whether proper course was to to seek a declaration to rule on validity of appointment of plaintiffs as directors and not have this raised as a point of order for the Chairman to rule on at a Board Meeting - Whether requirement to state objects of meeting under s. 144(2) of the Companies Act 1965 and to resolve that plaintiffs' appointment was invalid had been complied with in any notice and/or the requisition to hold the EGM - Whether mandatory provisions of s. 128 and s. 153 of the Companies Act providing for special notice to remove a director and twenty-eight days' notice of intention had been complied with - Whether ruling on status of plaintiffs' appointment was business to be transacted as per requisition of the EGM in relation to company's Articles of Association

CLJ 2014 Volume 1 (Part 8)

COURT

SC INDIA

Natasha Singh v. Central Bureau Of Investigation (State)
Dr B S Chauhan, F M Ibrahim Kalifulla JJ
(Criminal Procedure; Evidence - Fair and speedy trial - Right of accused to fair trial - Adducing evidence in support of defence) [2014] 1 CLJ 973 [SC India]

FEDERAL COURT

Kamarulzaman Omar & Ors v. Yakub Husin & Ors
Hashim Yusof, Ahmad Maarop, Hasan Lah, Zaleha Zahari, Jeffrey Tan FCJJ
(Land Law - Indefeasibility of title and interests - Fraud - Bona fide purchaser for value without notice) [2014] 1 CLJ 987 [FC]

COURT OF APPEAL

Ernest Cheong Yong Yin v. Mohammed Jamal Inche IM Salleh & Ors; Tetuan Mah-Kamariyah & Partners (Intervener)
Ramly Ali, Mohtarudin Baki, David Wong Dak Wah JJCA
(Company Law - Winding-up - Disposition of property – Registration of transfer) [2014] 1 CLJ 1026 [CA]

PP v. Gan Boon Aun & Anor
Mohamed Apandi Ali, Linton Albert, Hamid Sultan Abu Backer JJCA
(Civil Procedure - Appeal - Notice of appeal - Application to amend - Omission to include name of second respondent) [2014] 1 CLJ 1048 [CA]

Siti Aishah Sheikh Abd Kadir v. PP
Abdul Malik Ishak, Mohamed Apandi Ali, Mohtarudin Baki JJCA
(Criminal Law; Criminal Procedure - Corruption - Presumption under s. 15(2) Anti-Corruption Act 1997 - Whether rebutted) [2014] 1 CLJ 1058 [CA]

HIGH COURT

Govinaraju Nagarajan v. Pacific & Orient Insurance Co Bhd
S Nantha Balan JC
(Civil Procedure - Parties - Intervention - Insurer's application to intervene in running down action) [2014] 1 CLJ 1076 [HC]

Tenaga Nasional Bhd v. Tetuan Ariff & Co
Vazeer Alam Mydin Meera JC
(Legal Profession; Utilities - Solicitors - Breach of duty - Professional negligence) [2014] 1 CLJ 1112 [HC]

SUBJECT INDEX

CIVIL PROCEDURE

Amendment - Notice of appeal - Application for - Omission to include name of second respondent - Discretion of court - Objection to allow amendment - Whether objection misconceived - Whether appeal filed within time - Whether amendment allowed - Whether prayer to file amended notice of appeal out of time becomes academic once amendment allowed - Rules of the Court of Appeal 1994, r. 4
PP v. Gan Boon Aun & Anor
(Mohamed Apandi Ali, Linton Albert, Hamid Sultan Abu Backer JJCA) [2014] 1 CLJ 1048 [CA]

Appeal - Notice of appeal - Application to amend - Omission to include name of second respondent - Discretion of court - Objection to allow amendment - Whether objection misconceived - Whether appeal filed within time - Whether amendment allowed - Whether prayer to file amended notice of appeal out of time becomes academic once amendment allowed - Rules of the Court of Appeal 1994, r. 4
PP v. Gan Boon Aun & Anor
(Mohamed Apandi Ali, Linton Albert, Hamid Sultan Abu Backer JJCA) [2014] 1 CLJ 1048 [CA]

Parties - Intervention - Insurer's application to intervene in running down action - Whether allowed - Whether insurer's legal and financial interests affected by outcome of action - Whether unjust to postpone determination of insurer's allegations of fraud and collusion to later and separate forum - Whether appropriate for all issues to be ventilated and determined in one action to prevent multiplicity of proceedings - Whether application to intervene bona fide and timeously made - Rules of Court 2012, O. 15 r. 6(2)(b)(ii)
Govinaraju Nagarajan v. Pacific & Orient Insurance Co Bhd
(S Nantha Balan JC) [2014] 1 CLJ 1076 [HC]

COMPANY LAW

Winding-up - Disposition of property - Registration of transfer - Timing of - Whether company concluded sale and divested itself of all beneficial interests in property before winding-up petition presented - Whether s. 223 Companies Act 1965 contravened - Bona fide purchaser for value - Whether proven
Ernest Cheong Yong Yin v. Mohammed Jamal Inche IM Salleh & Ors; Tetuan Mah-Kamariyah & Partners (Intervener)
(Ramly Ali, Mohtarudin Baki, David Wong Dak Wah JJCA) [2014] 1 CLJ 1026 [CA]

CRIMINAL LAW

Corruption - Using office or position for gratification - Allegation of - Conviction and sentence - Appeal against - Presumption under s. 42(1) Anti-Corruption Act 1997 - Whether correctly invoked - Whether there was evidence to show that appellant had accepted, obtained or solicited gratification - Presumption under s. 15(2) Anti-Corruption Act 1997 - Whether rebutted - Whether failure to rebut presumption constituted a serious misdirection - Whether trial court failed to adequately consider or appreciate defence case - Whether there was a contravention of s. 173(m)(i) Criminal Procedure Code
Siti Aishah Sheikh Abd Kadir v. PP
(Abdul Malik Ishak, Mohamed Apandi Ali, Mohtarudin Baki JJCA) [2014] 1 CLJ 1058 [CA]

CRIMINAL PROCUDERE

Appeal - Conviction and sentence, against - Corruption - Using office or position for gratification - Allegation of - Conviction and sentence - Appeal against - Presumption under s. 42(1)
Anti-Corruption Act 1997 - Whether correctly invoked - Whether there was evidence to show appellant had accepted, obtained or solicited gratification - Presumption under s. 15(2) Anti-Corruption Act 1997 - Whether rebutted - Whether failure to rebut presumption constituted a serious misdirection - Whether trial court failed to adequately consider or appreciate defence case - Whether there was a contravention of s. 173(m)(i) Criminal Procedure Code
Siti Aishah Sheikh Abd Kadir v. PP
(Abdul Malik Ishak, Mohamed Apandi Ali, Mohtarudin Baki JJCA) [2014] 1 CLJ 1058 [CA]

Criminal Procedure Code, 1973 - Section 311 - Discretionary power of court under - Scope and object of - When to be exercised, and when not - Matters to be considered - Explained in detail - Held, power under s. 311 is to be exercised judiciously and not arbitrarily so as to enable the court to determine the truth and to render a just decision
Natasha Singh v. Central Bureau Of Investigation (State)
(Dr B S Chauhan, F M Ibrahim Kalifulla JJ) [2014] 1 CLJ 973 [SC India]

Criminal Procedure Code, 1973 - Section 311 - Examination of person as witness under - Issue(s) to be considered - Only admissibility/relevance of evidence of witness concerned is to be considered, and not its likely probative value - Held, trial court cannot prejudge evidence of witnesses sought to be examined - Examination of a witness cannot be refused on ground that evidence of that witness would not be conclusive - Only issue to be considered is whether evidence proposed to be adduced is relevant or not - Court can weigh the evidence only and only once the same has been laid before it and brought on record - On facts, trial court was not justified in dismissing application of appellant-accused under s. 311 for permission to examine three witnesses, by prejudging evidence of these witnesses and holding the examination unnecessary for the case - Application for their examination, allowed
Natasha Singh v. Central Bureau Of Investigation (State)
(Dr B S Chauhan, F M Ibrahim Kalifulla JJ) [2014] 1 CLJ 973 [SC India]

Criminal Trial - Fair and speedy trial - Right of accused to fair trial - Adducing evidence in support of defence - Held, is a valuable right and denial of the same amounts to denial of fair trial - Criminal Procedure Code, 1973 - Section 311 - Constitution of India, Art. 21
Natasha Singh v. Central Bureau Of Investigation (State)
(Dr B S Chauhan, F M Ibrahim Kalifulla JJ) [2014] 1 CLJ 973 [SC India]

Criminal Trial - Fair and speedy trial - Right of accused to fair trial - Duty of court - Rules of procedure are designed to ensure justice to be scrupulously followed - Court to ensure that there is no breach of the same - Constitution of India, Art. 21
Natasha Singh v. Central Bureau Of Investigation (State)
(Dr B S Chauhan, F M Ibrahim Kalifulla JJ) [2014] 1 CLJ 973 [SC India]

EVIDENCE

Evidence Act, 1872 - Section 45 - Handwriting expert sought to be examined under s. 311 CrPC - Admissibility only of opinion of handwriting expert to be considered at s. 311 CrPC stage, and not whether it would be conclusive - Criminal Procedure Code, 1973, s. 311
Natasha Singh v. Central Bureau Of Investigation (State)
(Dr B S Chauhan, F M Ibrahim Kalifulla JJ) [2014] 1 CLJ 973 [SC India]

LAND LAW

Indefeasibility of title and interests - Fraud - Immediate purchaser and subsequent purchaser - Whether subsequent bona fide purchaser for value without notice of fraud could claim indefeasibility - Whether bona fides of immediate purchaser immaterial if title tainted by any of vitiating elements in s. 340(2) National Land Code - Whether default judgment entered on cause of action for fraud meant fraud had been proved until judgment set aside
Kamarulzaman Omar & Ors v. Yakub Husin & Ors
(Hashim Yusof, Ahmad Maarop, Hasan Lah, Zaleha Zahari, Jeffrey Tan FCJJ) [2014] 1 CLJ 987 [FC]

LEGAL PROFESSION

Solicitors - Breach of duty - Professional negligence - Whether solicitors liable in negligence for failure to file suit within time - Whether causal link existed between solicitor's negligence and loss suffered by client - Whether client entitled to recover professional fees and taxed cost
Tenaga Nasional Bhd v. Tetuan Ariff & Co
(Vazeer Alam Mydin Meera JC) [2014] 1 CLJ 1112 [HC]

UTILITIES

Electricity - Charge for supply - Claim for shortfall due to faulty meter - Whether proviso to reg. 11(2) Licensee Supply Regulations 1990 applied to limit retrospective adjustment - Whether plaintiff's claim limited to period not exceeding three months
Tenaga Nasional Bhd v. Tetuan Ariff & Co
(Vazeer Alam Mydin Meera JC) [2014] 1 CLJ 1112 [HC]