Bulletin_9

CLJ Bulletin, Vol 2005, Issue 9
11 March 2005

Introduction:
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New This Week -	1. CLJ March (Part 1) 2005
	2. CLJ March (Part 2) 2005

CLJ March (Part 1) 2005

COURT

FEDERAL COURT

Adorna Properties Sdn Bhd v. Kobchai Sosothikul
(Federal Court - Inherent powers of court - Application under r. 137 Federal Court Rules 1995) [2005] 1 CLJ 565

COURT OF APPEAL

Cosway (M) Sdn Bhd & Anor v. Gan Poh Im
(Appeal - Memorandum of appeal - Filing of - Filing out of time) [2005] 1 CLJ 573

David Chelliah v. Monorail Malaysia Technology Sdn Bhd & Anor
(Interim payment - Application pending trial of action for negligence - Order 22A r. 3(1) Rules of the High Court 1980) [2005] 1 CLJ 589

Maplelee Property Sdn Bhd v. Tan Lei Fon
(Guarantee - Claim against guarantor of loan) [2005] 1 CLJ 599

HIGH COURT

Wong Chiou Yong v. Pendaftar Besar/Ketua Pengarah Jabatan Pendaftaran Negara
(Declaration - Application by transsexual - To declare herself as male and to direct respective authorities to amend birth registration accordingly) [2005] 1 CLJ 622

SUBJECT INDEX

CIVIL PROCEDURE

Appeal - Memorandum of appeal - Appeal from sessions court to High Court - Reckoning of time for filing memorandum of appeal - Whether within 14 days from receipt of Form 141 - Whether within six weeks from receipt of Form 141
Cosway (M) Sdn Bhd & Anor v. Gan Poh Im
(Abdul Malek Ahmad PCA, Arifin Zakaria & Tengku Baharudin Shah JJCA) [2005] 1 CLJ 573 [CA]

Appeal - Memorandum of appeal - Filing of - Filing out of time - Whether court has discretion to extend time for such filing - Factors to be considered in exercising discretion
Cosway (M) Sdn Bhd & Anor v. Gan Poh Im
(Abdul Malek Ahmad PCA, Arifin Zakaria & Tengku Baharudin Shah JJCA) [2005] 1 CLJ 573 [CA]

Appeal - Memorandum of appeal - Filing of - Memorandum of appeal filed together with record of appeal - No filing fee paid for filing of memorandum - Whether filing of memorandum of appeal defective
Cosway (M) Sdn Bhd & Anor v. Gan Poh Im
(Abdul Malek Ahmad PCA, Arifin Zakaria & Tengku Baharudin Shah JJCA) [2005] 1 CLJ 573 [CA]

Appeal - Time - Extension of time to file memorandum of appeal - Whether at discretion of court - Factors to be considered in exercising discretion
Cosway (M) Sdn Bhd & Anor v. Gan Poh Im
(Abdul Malek Ahmad PCA, Arifin Zakaria & Tengku Baharudin Shah JJCA) [2005] 1 CLJ 573 [CA]

Declaration - Application by transsexual - To declare herself as male and to direct respective authorities to amend birth registration accordingly - Whether registrar of birth was right in refusing to correct registration on grounds of error - Whether initial entry in registration reflected true gender at time of birth - Whether legislation in respect of transsexuals found lacking - Births and Deaths Registration Act 1957, s. 27(1), (2), (3) - National Registration Act 1959, s. 6(2)(o)
Wong Chiou Yong v. Pendaftar Besar/Ketua Pengarah Jabatan Pendaftaran Negara
(VT Singham J) [2005] 1 CLJ 622 [HC]

Interim payment - Application pending trial of action for negligence - Order 22A r. 3(1) Rules of the High Court 1980 - Whether requirements satisfied - Whether applicant should show condition had deteriorated since accident - Whether applicant entitled to substantial damages if claim were to succeed - Whether res ipsa loquitor applied to show negligence
David Chelliah v. Monorail Malaysia Technology Sdn Bhd & Anor
(Mokhtar Sidin, Richard Malanjum & Nik Hashim JJCA) [2005] 1 CLJ 589 [CA]

Jurisdiction - Federal Court - Inherent powers of court - Application under r. 137 Federal Court Rules 1995 - Order praying for judgment to be set aside in the interest of justice - Judgment resulted in rightful owner losing lands due to forged documents under proviso to s. 340(3) National Land Code - Whether grave injustice occasioned - Whether application proper
Adorna Properties Sdn Bhd v. Kobchai Sosothikul
(PS Gill, Rahmah Hussein FCJJ & Richard Malanjum JCA) [2005] 1 CLJ 565 [FC]

CONTRACT

Guarantee - Claim against guarantor of loan - Whether there was a variation in loan agreement without knowledge of guarantor - Whether benefit derived from taking possession of premises for which loan was advanced should be taken into account - Whether ss. 92, 93, 94 and 98 of Contracts Act 1965 applicable
Maplelee Property Sdn Bhd v. Tan Lei Fon
(Mokhtar Sidin, Abdul Aziz Mohamad JJCA & James Foong J) [2005] 1 CLJ 599 [CA]

Loan - Agreement - Agreement stipulated that drawdown would be released upon receipt of invoices - Whether there was a variation in agreement when drawdown was released upon letters requesting for drawdown and not invoices per se
Maplelee Property Sdn Bhd v. Tan Lei Fon
(Mokhtar Sidin, Abdul Aziz Mohamad JJCA & James Foong J) [2005] 1 CLJ 599 [CA]

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CLJ March (Part 2) 2005

COURT

FEDERAL COURT

PP v. Awang Raduan Awang Bol
(Criminal law - Murder - Whether trial judge must consider every possible defence) [2005] 1 CLJ 649

COURT OF APPEAL

Chan Beng Tiow v. Kok Mei Mooi
(Family law - Maintenance of spouse - Assessment of maintenance - Division of property - Principles and considerations) [2005] 1 CLJ 658

Erivesto Anderson & Ors v. PP
(Evidence - Identification evidence - Information leading to fact discovered - Accused’s statement to police) [2005] 1 CLJ 666

Looi Gnan Peng v. Bay Tong Hai
(Damages - Personal injuries - Loss of future earnings - Proof - Civil Law Act 1956, s. 28A(2)(c)(i)) [2005] 1 CLJ 685

Muhamad Jafri Jantan & Ors v. Zainal Md Rais
(Tort - Negligence - Road accident - Action for damages - Apportionment of liability) [2005] 1 CLJ 694

PP v. Abdul Rahman Mohamad
(Criminal law - Rape - Consent - Whether complainant could have exercised her free will voluntarily and consciously) [2005] 1 CLJ 700

SUBJECT INDEX

CIVIL LAW ACT

Damages - Loss of future earnings - Proof - That plaintiff was in good health but for the injury - Whether plaintiff’s injuries prevented her from continuing in her occupation - Whether plaintiff showed how long she would have been employed but for the injury - Whether claim for loss of future earnings included in pleadings - Civil Law Act 1956, s. 28A(2)(c)(i)
Looi Gnan Peng v. Bay Tong Hai
(Ahmad Fairuz CJ, Richard Malanjum & Tengku Baharudin Shah JCA) [2005] 1 CLJ 685 [CA]

CRIMINAL LAW

Penal Code - Section 300 - Murder - Accused convicted by High Court - Conviction reduced to ‘culpable homicide not amounting to murder’ by Court of Appeal on ground that High Court failed to consider defence of ‘sudden fight’ - Section 300, Exception 4 - Whether trial judge must consider every possible defence - Whether a misdirection if he did not - Whether accused would have been able to establish ingredients of Exception 4 - ‘Without premeditation in a sudden fight in the heat of passion upon a sudden quarrel’ - ‘Without the offender having taken undue advantage or acted in a cruel or unusual manner’ - Whether there was any fight at all
PP v. Awang Raduan Awang Bol
(Steve Shim CJ (Sabah & Sarawak), Abdul Hamid Mohamad & Alauddin Mohd Sheriff FCJJ) [2005] 1 CLJ 649 [FC]

CRIMINAL LAW

Penal Code - Section 375(b) - Rape - Consent - Section 90(a) - Accused convicted for raping complainant whilst administering spiritual medical-treatment to her - Whether complainant consented to repeated acts of sexual intercourse with accused - Whether consent given under fear of injury or misconception or misrepresentation of fact - Importance of complainant’s state of mind immediately before intercourse - Whether complainant could have exercised her free will voluntarily and consciously - Whether High Court wrong in disturbing findings of trial judge
PP v. Abdul Rahman Mohamad
(Richard Malanjum, Tengku Baharudin JJCA & Azmel Maamor J) [2005] 1 CLJ 700 [CA]

CRIMINAL PROCEDURE

Appeal - Fact, findings of - Interference by appellate court - Scope and character of appellate functions - Decision of trial judge based on evidence adduced at trial - Whether questions of fact based on credibility and trustworthiness of witnesses - Whether conclusions of trial judge plainly wrong or against weight of evidence - Accused convicted for rape - Whether complainant consented to sexual intercourse within meaning of ss. 375(b) & 90(a) Penal Code - Whether High Court should have disturbed factual findings of trial judge
PP v. Abdul Rahman Mohamad
(Richard Malanjum, Tengku Baharudin JJCA & Azmel Maamor J) [2005] 1 CLJ 700 [CA]

DAMAGES

Action for - Apportionment of liability - Innocent passenger - Whether entitled to claim damages on 100% basis - Whether pillion rider of motorcycle entitled to claim 100% damages against defendant although rider of motorcycle contributed 50% to accident - Whether pillion rider can be held vicariously liable for rider’s contributory negligence
Muhamad Jafri Jantan & Ors v. Zainal Md Rais
(Abdul Malek Ahmad PCA, Arifin Zakaria & Tengku Baharudin Shah JCA) [2005] 1 CLJ 694 [CA]

Personal injuries - Loss of future earnings - Proof - That plaintiff was in good health but for the injury - Whether plaintiff’s injuries prevented her from continuing in her occupation - Whether plaintiff showed how long she would have been employed but for the injury - Whether claim for loss of future earnings included in pleadings - Civil Law Act 1956, s. 28A(2)(c)(i)
Looi Gnan Peng v. Bay Tong Hai
(Ahmad Fairuz CJ, Richard Malanjum & Tengku Baharudin Shah JCA) [2005] 1 CLJ 685 [CA]

EVIDENCE

Identification evidence - Identification of accused - Evidence against accused dependent wholly or substantially on identification evidence - Factors to be taken into consideration in assessing such evidence
Erivesto Anderson & Ors v. PP
(Mohd Saari Yusof, PS Gill & Richard Malanjum JJCA) [2005] 1 CLJ 666 [CA]

Identification evidence - Identification of accused - Failure of judge to specifically refer to R v. Turnbull - Assessment of identification evidence nevertheless based on the Turnbull guidelines - Whether such assessment flawed
Erivesto Anderson & Ors v. PP
(Mohd Saari Yusof, PS Gill & Richard Malanjum JJCA) [2005] 1 CLJ 666 [CA]

Identification evidence - Need for close scrutiny - Evidence against accused dependent wholly or substantially on identification evidence - Whether caution necessary before convicting on such evidence
Erivesto Anderson & Ors v. PP
(Mohd Saari Yusof, PS Gill & Richard Malanjum JJCA) [2005] 1 CLJ 666 [CA]

Information leading to fact discovered - Admissibility of statement - Voluntariness - Vested discretion in trial judge to exclude evidence prejudicial to accused even though such evidence technically admissible - Evidence Act 1950, s. 27
Erivesto Anderson & Ors v. PP
(Mohd Saari Yusof, PS Gill & Richard Malanjum JJCA) [2005] 1 CLJ 666 [CA]

Statement - Accused’s statement to police - Verbal statement and facial expressions - Whether contemporaneous so as to be inextricably linked - Whether there was evidence of nexus between statement and facial expression
Erivesto Anderson & Ors v. PP
(Mohd Saari Yusof, PS Gill & Richard Malanjum JJCA) [2005] 1 CLJ 666 [CA]

FAMILY LAW

Financial obligation - Maintenance of spouse - Assessment of maintenance - Principles and considerations - Means and needs of parties - 47-year-old unemployed wife - Husband having less than RM500 of disposable income monthly - Whether maintenance payments ordered by High Court reasonable - Law Reform (Marriage and Divorce) Act 1976, s. 78
Chan Beng Tiow v. Kok Mei Mooi
(Mokhtar Sidin, Mohd Noor Ahmad & Mohd Ghazali Yusoff JCA) [2005] 1 CLJ 658 [CA]

Matrimonial property - Division of property - Principles and considerations - Extent of wife’s contributions to welfare of family - Looking after home and/or caring for family - Whether years of marriage relevant - Whether order of High Court giving wife a 40% interest in matrimonial home reasonable - Law Reform (Marriage and Divorce) Act 1976, s. 76(3) & (4)
Chan Beng Tiow v. Kok Mei Mooi
(Mokhtar Sidin, Mohd Noor Ahmad & Mohd Ghazali Yusoff JCA) [2005] 1 CLJ 658 [CA]

TORT

Negligence - Road accident - Action for damages - Apportionment of liability - Innocent passenger - Whether entitled to claim damages on 100% basis - Whether pillion rider of motorcycle entitled to claim 100% damages against defendant although rider of motorcycle contributed 50% to accident - Whether pillion rider can be held vicariously liable for rider’s contributory negligence
Muhamad Jafri Jantan & Ors v. Zainal Md Rais
(Abdul Malek Ahmad PCA, Arifin Zakaria & Tengku Baharudin Shah JCA) [2005] 1 CLJ 694 [CA]

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CASE OF THE WEEK

PARAMESWARI SINNATHAMBY v. KARTHI KEYAN VELUSAMY

Family Law - Divorce - Division of matrimonial property

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