Legal Network Series

[2012] 1 LNS 752	NUMPANG SUNTAI & ORS v. QUALITY CONCRETE HOLDINGS BERHAD & ORS	CIVIL PROCEDURE: Res judicata - Similar proceedings - Whether plaintiffs could maintain present suit because part of their claim here was also the subject of adjudication in Suit No. 22-118-2007 - Whether some plaintiffs, who resided in a different area and had laid claim to a much larger NCR area, in the absence of any agreement, must be considered privies of the seven plaintiffs in earlier suit - Whether doctrine of res judicata could be applied to defeat plaintiffs' claim CIVIL PROCEDURE: Declaration - Application for - Whether correct procedure in the circumstances - Whether declaration for NCR should be granted - Whether writ action instituted by plaintiffs was wrong mode of commencement - Whether plaintiffs should have proceeded by way of judicial review to protect their rights - Whether a declaratory order that plaintiffs possessed NCR should be granted NATIVE LAW AND CUSTOM: Land dispute - Customary rights over land - Whether plaintiffs established native customary rights over land in question - Whether plaintiffs entitled to move the courts to defend their quiet enjoyment of it in accordance with their customary practices TORT: Vicarious liability - Government liability - Failure to identify negligent government officers - Government officers in question not named, identified or personally joined as defendants - Whether claim for declaratory prayers based on tort of breach of fiduciary duty and negligence could be sustained
[2012] 1 LNS 756	NETWORK PET PRODUCTS (M) SDN BHD v. ROYAL CANIN SAS & ANOR	CIVIL PROCEDURE: Injunction - Inter parte application - Whether an injunction should be granted to restrain defendant from distributing its own products which was in defendant's trademark name - Whether balance of convenience was in defendant's favour - Whether plaintiff had shown irreparable harm or damage would be caused to them and that such harm would place them in an irretrievable position incapable of remedy by way of damages
[2012] 1 LNS 759	DER NICHE SDN BHD v. KIARAVILLE JOINT MANAGEMENT BODY	CIVIL PROCEDURE: Injunction - Application for - To prevent defendant from interfering with plaintiff's catering business - LOA giving tenancy to run cafeteria at defendant's premises awarded to Der Niche and not plaintiff - Whether there was a bona fide serious question to be tried - Whether plaintiff's application should be dismissed on this ground alone - Where justice of the matter or balance of convenience lay - Whether balance of convenience lay in favour of defendant - Whether any justification for an injunction to be granted CIVIL PROCEDURE: Injunction - Application for - Erinford injunction - Oral application without Counsel taking prior instructions from plaintiff, unsupported by affidavit evidence and mainly relying on mere statements from the Bar - Whether oral application should be allowed - Whether any necessity to maintain status quo - Whether special circumstances shown to justify the Erinford injunction being granted - Whether there was a likelihood of a successful appeal being rendered nugatory - Whether damages were an adequate remedy
[2012] 1 LNS 766	TENAGA NASIONAL BERHAD v. API-API AQUACULTURE SDN BHD	CONTRACT: Breach - Agreement - Contract to provide supply of electricity - Defendant's appeal on assessment of quantum by deputy registrar - Whether there was any undercharging of electricity usage by defendant due to fault of the meter - Whether there was proof that offence under the Electricity Supply Act 1990, ss. 37(1), (3) and (14) had been committed - Whether consent terms negated any offence as envisaged by these sections - Whether plaintiff's reliance ons. 38(3) of the Electricity Supply Act 1990 to proceed with assessment could be sustained
[2012] 1 LNS 745	RAYMOND FAIZAL AMINUDDIN v. PP	CRIMINAL PROCEDURE: Appeal - Appeal against sentence - Gang robbery - Public interest - Appellant pleaded guilty to charge, was a first offender, was drunk at time of commission of offence and merely pointed knife at victim with no injuries caused - Whether sentence imposed by lower court was severe and excessive especially since no injury was caused - Whether sentence of whipping of 3 strokes should be removed and sentence of 8 years' imprisonment maintained

CLJ 2014 Volume 2 (Part 1)

COURT

FEDERAL COURT

Winstech Engineering Sdn Bhd v. ESPL (M) Sdn Bhd
Arifin Zakaria CJ, Richard Malanjum CJ (Sabah & Sarawak), Abdull Hamid Embong, Hasan Lah FCJJ
(Company Law - Winding up - Companies Act 1965, ss. 226(3), 236(2)(a) & 236(3)) [2014] 2 CLJ 1 [FC]

COURT OF APPEAL

Kobra Taba Seidali v. PP
Mohtarudin Baki, Mohd Zawawi Salleh, Hamid Sultan Abu Backer JJCA
(Criminal Law - Failure to rebut 'Alcontara Notice' - Whether opportunity of fair trial compromised by prosecution) [2014] 2 CLJ 12 [CA]

Kunalan Kandasamy lwn. PP
Abdul Malik Ishak, Azahar Mohamed, Mohd Zawawi Salleh HHMR
(Undang-undang Jenayah; Prosedur Jenayah - Seksyen 302 - - Kegagalan memanggil saksi penting - Sama ada memudaratkan kes dan memprejudiskan perayu) [2014] 2 CLJ 25 [CA]

HIGH COURT

Azizah Abdul Manan & Ors v. Dr Norlelawati AB Latip & Ors
Abdul Rahman Sebli J
(Tort - Negligence - Medical negligence - Deceased's consent for operation - Whether defendants absolved from liability) [2014] 2 CLJ 44 [HC]

PP v. Hassan Hj Ali Basri
Ravinthran Paramaguru J
(Criminal Law - Penal Code - Omission to give information in respect of s. 130C offence) [2014] 2 CLJ 72 [HC]

Stephane-Henri Maurice Jacques Gregoire v. Noraini Abdul Murat
Rosilah Yop JC
(Civil Procedure - Security for costs - Whether sum for security of costs reasonable - Rules of Court 2012, O. 23 r. 1) [2014] 2 CLJ 115 [HC]

Syarikat Bekalan Air Selangor Sdn Bhd v. Kerajaan Negeri Selangor; Kerajaan Malaysia (Third Party) (No 2)
Abu Bakar Jais JC
(Civil Procedure - Pleadings - Whether satisfied principles laid down in Yamaha Motor Co Ltd v. Yamaha Malaysia Sdn Bhd) [2014] 2 CLJ 125 [HC]

SUBJECT INDEX

CIVIL PROCEDURE

Amendment - Pleadings - Amendment to add co-plaintiff - Whether satisfied principles laid down in Yamaha Motor Co Ltd v. Yamaha Malaysia Sdn Bhd - Whether amendments sought bona fide - Whether prejudice caused could be compensated with costs - Whether character of suit would be changed to another and inconsistent character
Syarikat Bekalan Air Selangor Sdn Bhd v. Kerajaan Negeri Selangor; Kerajaan Malaysia (Third Party) (No 2)
(Abu Bakar Jais JC) [2014] 2 CLJ 125 [HC]

Security for costs - Application for - Plaintiff claimed against defendant for slander - Claim for damages - Plaintiff a Belgian citizen with no permanent address nor assets within jurisdiction of court - Whether defendant had meritorious defence to plaintiff's claim - Whether there was reason to believe that plaintiff was unable to pay defendant's cost to defend action - Whether sum for security of costs reasonable - Rules of Court 2012, O. 23 r. 1
Stephane-Henri Maurice Jacques Gregoire v. Noraini Abdul Murat
(Rosilah Yop JC) [2014] 2 CLJ 115 [HC]

COMPANY LAW

Winding up - Leave to appeal - Application for - Application filed prior to obtaining sanction by official receiver - Whether sanction applied retrospectively - Grant of leave - Whether justified - Whether respondent prejudiced by application - Companies Act 1965, ss. 226(3), 236(2)(a) & 236(3)
Winstech Engineering Sdn Bhd v. ESPL (M) Sdn Bhd
(Arifin Zakaria CJ, Richard Malanjum CJ (Sabah & Sarawak), Abdull Hamid Embong, Hasan Lah, Mohamed Apandi Ali FCJJ) [2014] 2 CLJ 1 [FC]

CRIMINAL LAW

Dangerous Drugs Act 1952 - Section 39B(1)(a) - Trafficking - Conviction and sentence - Appeal against - Prima facie case - Whether established - Failure of prosecution to call material witness or submit copy of witness statement - Criminal Procedure Code, s. 112 - Whether fatal - Failure to rebut 'Alcontara Notice' - Whether opportunity of fair trial compromised by prosecution - Failure of trial judge to consider defence case in right perspective - Whether decision to convict safe
Kobra Taba Seidali v. PP
(Mohtarudin Baki, Mohd Zawawi Salleh, Hamid Sultan Abu Backer JJCA) [2014] 2 CLJ 12 [CA]

Penal Code - Section 130C - Omission to give information in respect of s. 130C offence - Whether ingredients of offence made out - Whether accused was in possession of information - Whether intercepted telephone conversation admissible to prove offence - Whether accused had reasons to believe that offence of 'terrorist act' would be committed - Whether accused legally bound to pass information to superiors - Whether motive proven
PP v. Hassan Hj Ali Basri
(Ravinthran Paramaguru J) [2014] 2 CLJ 72 [HC]

Security Offences (Special Measures) Act 2012 - Section 6(1) - Whether only officer authorised by Public Prosecutor could intercept communications - Whether sufficient if interception carried out under direction and supervision of officer - Whether non-verbatim transcript of telephone conversation admissible
PP v. Hassan Hj Ali Basri
(Ravinthran Paramaguru J) [2014] 2 CLJ 72 [HC]

TORT

Negligence - Damages - Medical negligence - Ectopic pregnancy - Deceased suffered from upper respiratory throat infection - Operation carried out under emergency situation - Deceased died about seven months later due to sepsis secondary to pneumonia and sacral sore - Whether deceased's death could be traced back to risk created by defendants in managing ectopic pregnancy - Claim for funeral expenses, bereavement, loss of support, nursing care, pain and suffering and medical expenses - Whether damages awarded
Azizah Abdul Manan & Ors v. Dr Norlelawati AB Latip & Ors
(Abdul Rahman Sebli J) [2014] 2 CLJ 44 [HC]

Negligence - Medical negligence - Ectopic pregnancy - Deceased complained of abdominal pain - Condition of deceased - Conservative management approach - Whether deceased suitable for such approach - Failure to immediately deal with deceased's life-threatening condition - Deceased suffered from upper respiratory throat infection - Operation carried out under emergency situation - Deceased died about seven months later due to sepsis secondary to pneumonia and sacral sore - Deceased's consent for operation - Whether defendants absolved from liability - Whether deceased's death could be traced back to risk created by defendants in managing ectopic pregnancy - Whether damages awarded
Azizah Abdul Manan & Ors v. Dr Norlelawati AB Latip & Ors
(Abdul Rahman Sebli J) [2014] 2 CLJ 44 [HC]

INDEKS PERKARA

PROSEDUR JENAYAH

Perbicaraan - Bunuh - Rayuan terhadap sabitan dan hukuman - Sama ada perayu telah mendapat perbicaraan yang adil - Kegagalan memanggil saksi penting - Sama ada memudaratkan kes dan memprejudiskan perayu - Akta Keterangan 1950, s. 114(g) - Sama ada sepatutnya digunakan terhadap pihak pendakwaan - Sama ada tidak selamat untuk mengekalkan sabitan dan hukuman
Kunalan Kandasamy lwn. PP
(Abdul Malik Ishak, Azahar Mohamed, Mohd Zawawi Salleh HHMR) [2014] 2 CLJ 25 [CA]

UNDANG-UNDANG JENAYAH

Kanun Keseksaan - Seksyen 302 - Bunuh - Rayuan terhadap sabitan dan hukuman - Sama ada perayu telah mendapat perbicaraan yang adil - Kegagalan memanggil saksi penting - Sama ada memudaratkan kes dan memprejudiskan perayu - Akta Keterangan 1950, s. 114(g) - Sama ada sepatutnya digunakan terhadap pihak pendakwaan - Sama ada tidak selamat untuk mengekalkan sabitan dan hukuman
Kunalan Kandasamy lwn. PP
(Abdul Malik Ishak, Azahar Mohamed, Mohd Zawawi Salleh HHMR) [2014] 2 CLJ 25 [CA]