Bulletin_09

CLJ Bulletin, Vol 2007, Issue 09

16 March 2007

CLJ Law MALAYSIA

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New This Week -

1. CLJ March (Part 2) 2007

COURT

FEDERAL COURT

Asean Security Paper Mills Sdn Bhd v. CGU Insurance Bhd
(Fire insurance - Destruction of goods by fire - Refusal by respondent to pay appellant on ground that claim fraudulent) [2007] 2 CLJ 1

COURT OF APPEAL

Joo Seng Trading Co v. Commercial Importers And Distributors Sdn Bhd
(Contract - Breach - Action for damages - Termination of distributorship agreement by respondent) [2007] 2 CLJ 25

PP v. Hanif Basree Abdul Rahman
(Criminal law - Penal Code - Section 302 - Murder - Appeal by prosecution against acquittal and discharge of accused without calling for defence) [2007] 2 CLJ 33

See Teow Chuan & Anor v. YAM Tunku Nadzaruddin Ibni Tuanku Jaafar & Ors
(Contract - Specific performance - Contract of service - Specific relief amounting to reinstatement) [2007] 2 CLJ 82

SUBJECT INDEX

CIVIL PROCEDURE

Appeal - Evidence, evaluation of - Whether competent for appellate court to rely more on so-called circumstantial evidence as opposed to direct and scientific evidence in reversing decision of trial court - Whether there was serious miscarriage of justice warranting appellate intervention
Asean Security Paper Mills Sdn Bhd v. Cgu Insurance Bhd
(Richard Malanjum CJ (Sabah & Sarawak), Nik Hashim & Hashim Yusoff FCJJ) [2007] 2 CLJ 1 [FC]

Appeal - Fact, findings of - Credibility of witnesses - Whether trial judge judicially appraised evidence of witnesses - Audio-visual advantage of trial judge - Whether a fit and proper case for appellate intervention
Joo Seng Trading Co v. Commercial Importers And Distributors Sdn Bhd
(Gopal Sri Ram, Zulkefli Makinudin & Abdull Hamid Embong JJCA) [2007] 2 CLJ 25 [CA]

Appeal - Pleadings - Issue not pleaded in memorandum of appeal - Whether issue still arguable by appellant - Essential justice - Whether grossly unfair to respondent to have to defend against an unpleaded ground of appeal
Joo Seng Trading Co v. Commercial Importers And Distributors Sdn Bhd
(Gopal Sri Ram, Zulkefli Makinudin & Abdull Hamid Embong JJCA) [2007] 2 CLJ 25 [CA]

Fraud - Standard of proof in civil action - Whether must be beyond reasonable doubt and not on balance of probabilities - Whether available circumstantial evidence proved alleged commission of arson beyond reasonable doubt
Asean Security Paper Mills Sdn Bhd v. Cgu Insurance Bhd
(Richard Malanjum CJ (Sabah & Sarawak), Nik Hashim & Hashim Yusoff FCJJ) [2007] 2 CLJ 1 [FC]

COMPANY LAW

Agency - Director - Whether appellant company bound by acts of its director/shareholder - Scope and ambit of authority conferred on director/shareholder - Whether director/shareholder had authority to act - Whether appellant company legally liable
Asean Security Paper Mills Sdn Bhd v. Cgu Insurance Bhd
(Richard Malanjum CJ (Sabah & Sarawak), Nik Hashim & Hashim Yusoff FCJJ) [2007] 2 CLJ 1 [FC]

Directors - Removal - Specific relief amounting to reinstatement - Resolution passed requiring all executive directors to retire on attaining 55 years of age - Terms of contract - Whether resolution tainted with bad faith - Retrospective effect - Unilateral introduction of a new term into contract - Whether injunction restraining implementation of said resolution a decree of specific performance - Whether declaration that plaintiffs entitled to continue as directors amounted to specific performance of service contract
See Teow Chuan & Anor v. Yam Tunku Nadzaruddin Ibni Tuanku Jaafar & Ors
(Gopal Sri Ram, Zulkefli Ahmad Makinudin & Raus Sharif JJCA) [2007] 2 CLJ 82 [CA]

CONTRACT

Breach - Action for damages - Termination of distributorship agreement by respondent - Whether respondent's act constituted a breach of contract - Notice of termination did not give any reason for terminating contract - Whether contract-breaker entitled to justify termination on good grounds at trial - Whether termination justified
Joo Seng Trading Co v. Commercial Importers And Distributors Sdn Bhd
(Gopal Sri Ram, Zulkefli Makinudin & Abdull Hamid Embong JJCA) [2007] 2 CLJ 25 [CA]

Specific performance - Contract of service - Specific relief amounting to reinstatement - Resolution passed requiring all executive directors to retire on attaining 55 years of age - Terms of contract - Whether resolution tainted with bad faith - Retrospective effect - Unilateral introduction of a new term into contract - Whether injunction restraining implementation of said resolution a decree of specific performance - Whether declaration that plaintiffs entitled to continue as directors amounted to specific performance of service contract
See Teow Chuan & Anor v. Yam Tunku Nadzaruddin Ibni Tuanku Jaafar & Ors
(Gopal Sri Ram, Zulkefli Ahmad Makinudin & Raus Sharif JJCA) [2007] 2 CLJ 82 [CA]

CRIMINAL LAW

Penal Code - Section 302 - Murder - Appeal by prosecution against acquittal and discharge of accused without calling for defence - Burden on prosecution at close of case - Evidence of witnesses - Due consideration of evidence as a whole - Circumstantial evidence - Whether prima facie case established
PP v. Hanif Basree Abdul Rahman
(Mokhtar Sidin, Mohd Ghazali Yusoff & Tengku Baharudin Shah JJCA) [2007] 2 CLJ 33 [CA]

CRIMINAL PROCEDURE

Judgment - Grounds of decision - Application by Public Prosecutor for court to exercise its powers under s. 60(1) Courts of Judicature Act 1964 to order trial judge to write a supplementary judgment - Courts of Judicature Act 1964, ss. 52, 60(1) - Criminal Procedure Code, s. 307(3)
PP v. Hanif Basree Abdul Rahman
(Mokhtar Sidin, Mohd Ghazali Yusoff & Tengku Baharudin Shah JJCA) [2007] 2 CLJ 33 [CA]

Trial - Close of prosecution's case - Burden on prosecution - Correct test to be applied in determining whether a prima facie case made out under s. 180 Criminal Procedure Code
PP v. Hanif Basree Abdul Rahman
(Mokhtar Sidin, Mohd Ghazali Yusoff & Tengku Baharudin Shah JJCA) [2007] 2 CLJ 33 [CA]

EVIDENCE

Expert evidence - Chemist - Court to assess weight of evidence - Whether there was insufficient judicial appreciation of relevant evidence by Court of Appeal - Whether there was serious miscarriage of justice warranting appellate intervention
Asean Security Paper Mills Sdn Bhd v. Cgu Insurance Bhd
(Richard Malanjum CJ (Sabah & Sarawak), Nik Hashim & Hashim Yusoff FCJJ) [2007] 2 CLJ 1 [FC]

Standard of proof - Fraud alleged in civil case - Whether must be beyond reasonable doubt and not on balance of probabilities - Whether available circumstantial evidence proved alleged commission of arson beyond reasonable doubt
Asean Security Paper Mills Sdn Bhd v. Cgu Insurance Bhd
(Richard Malanjum CJ (Sabah & Sarawak), Nik Hashim & Hashim Yusoff FCJJ) [2007] 2 CLJ 1 [FC]

Witness - Credibility of - Rejection of witnesses' evidence in toto - Whether trial judge considered scientific and other circumstantial evidence together - Whether he should have at least treated them with suspicion - Whether evidence properly weighed before decision arrived at
PP v. Hanif Basree Abdul Rahman
(Mokhtar Sidin, Mohd Ghazali Yusoff & Tengku Baharudin Shah JJCA) [2007] 2 CLJ 33 [CA]

INSURANCE

Fire insurance - Storage of goods at warehouse - Destruction of goods by fire - Refusal by respondent to pay appellant on ground that claim fraudulent - Whether fire a result of deliberate act of arson - Expert evidence of chemists - Whether Court of Appeal erred in finding in respondent's favour
Asean Security Paper Mills Sdn Bhd v. Cgu Insurance Bhd
(Richard Malanjum CJ (Sabah & Sarawak), Nik Hashim & Hashim Yusoff FCJJ) [2007] 2 CLJ 1 [FC]

CASE OF THE WEEK

PP v. SA’ARI JUSOH

CRIMINAL LAW: Dangerous Drugs Act 1952 - Section 39B(1)(a) - Trafficking in dangerous drugs - Meaning of expression "selling" in definition of "trafficking" in s. 2 Dangerous Drugs Act 1952 - Whether a reference to a present sale and not to a future one - Whether sale complete upon transfer of property in goods even though price not paid - Dangerous Drugs Act 1952, ss. 2, 39B(1)(a)

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