Legal Network Series

[2010] 1 LNS 1716	PP v. QUIJANA GERRY SAAVADERA	CRIMINAL LAW: Dangerous drugs - Trafficking - 20 plastic packets containing drugs found in black suitcase - Possession - Whether accused was in actual physical possession of suitcase - Whether accused had mens rea possession and knew that plastic packets contained illicit drugs - Quantity of drugs - Whether irresistible inference that accused was trafficking in drugs CRIMINAL PROCEDURE: Trial - Dangerous Drugs Act 1952 - Defence - Explanation that accused's Employer asked him to assist Mr Bas to send a suitcase through accused - Whether accused's story credible or probable - Whether accused's Employer and Mr. Bas were fictitious persons CRIMINAL PROCEDURE: Trial - Dangerous Drugs Act 1952 - Prosecution's case - Whether prosecution made out a prima facie case against accused - Whether accused raised any reasonable doubt regarding his possession and/or trafficking of the drugs - Whether accused's explanation cast a reasonable doubt on prosecution's case - Whether prosecution proved charge against accused beyond reasonable doubt
[2010] 1 LNS 1740	LAFARGE CONCRETE (MALAYSIA) SDN BHD v. HASRAT USAHA SDN BHD amp; ANOR	CONTRACT: Breach - Contract for work done and materials supplied - Written agreement concluded between plaintiff and 1st defendant - All documentation proving deliveries of concrete were in 2nd defendant's name - Whether 1st defendant or 2nd defendant liable to pay for the concrete sold and delivered - Whether 2nd defendant was at all material times acting as 1st defendant's authorized personnel CONTRACT: Estoppel - Estoppel by conduct - Mode or manner in which 1st defendant conducted its dealings - Mutual understanding of their rights and obligations and arrangement between the defendants - Whether understanding was that concrete was to be delivered to 2nd defendant pursuant to its orders with payments for the same by 1st defendant - Whether 1stdefendant estopped from contending otherwise CIVIL PROCEDURE: Trial - Submission of no case to answer - Election by 1st defendant - Right to cross-examine witnesses in such circumstances - Whether 1st defendant allowed to cross-examine witnesses called by 2nd defendant - Whether plaintiff established case for 1st defendant to answer - Whether plaintiff's evidence uncontroverted - Whether 1st defendant's no case submission had merit
[2011] 1 LNS 521	ORIENTAL BANK BERHAD v. KIING TECK HOON & ANOR	CONTRACT: Breach - Payment of debt - Action to recover moneys loaned under a loan agreement - Respondents did not deny that RM200,000.00 of the loan had been released - Whether appellant defied respondents' instructions not to release the progressive payments to the third party - Whether appellant breached the loan agreement - Whether any basis in law or principle to support respondents' pleaded defence CIVIL PROCEDURE: Preliminary objection - Appellant's Record of Appeal - Whether written submissions must be included in Record of Appeal - Whether inclusion of documents marked as 'IDs' had 'seriously prejudiced' respondents - Whether inclusion of photostated copy of the sealed order in the record of appeal was sufficient
[2011] 1 LNS 631	EGIN @ LAIWIN BIN MAHIR & ORS v. CORAK NAKHODA SDN BHD & ORS (NO 2)	CIVIL PROCEDURE: Striking out - Writ of summons and statement of claim - Whether plaintiffs' claim disclosed no reasonable cause of action and/or was frivolous or vexatious or an abuse of the process of the court - Whether plain and obvious case for striking out CIVIL PROCEDURE: Jurisdiction - High Court - Plaintiffs were land applicants - Whether the court had jurisdiction to order 2nd, 3rd, 4th and 5th defendants to consider and approve all outstanding land applications by plaintiffs - Prayer for declaration that plaintiffs as natives of Sabah had rights under the Sabah Land Ordinance 1930 to exercise native customary rights over State land - Whether High Court had the original jurisdiction to determine native customary rights - Whether plaintiffs' claim for native customary rights was duly considered and processed by the 2nd, 3rd, 4th and 5th defendants
[2011] 1 LNS 953	NANDA KUMARIE BALACHANDRAN v. BUMIPUTRA-COMMERCE FINANCE BERHAD	HIRE PURCHASE: Repossession - Instalment in arrears - Service of notice - Whether lawful - Whether repossession premature as there was an agreement between plaintiff's former husband and defendant's agent - Whether there was an agreement for extension of time until 28 July 2005 to settle arrears of instalments and to withhold repossession until that date - Whether a representation had been made by defendant through its agent - Whether plaintiff was in breach of her instalment payments and thus in breach of hire purchase agreement - Whether repossession by defendant was lawful

CLJ 2013 Volume 2 (Part 3)

COURT

FEDERAL COURT

Jet-Tech Materials Sdn Bhd & Anor v. Yushiro Chemical Industry Co Ltd & Ors And Another Appeal
Raus Sharif PCA, Suriyadi Halim Omar, Ahmad Maarop, Zaleha Zahari, Sulong Matjeraie FCJJ
(Company Law - Members' rights - Oppression - Petition under s. 181 Companies Act 1965) [2013] 2 CLJ 277 [FC]

Mayban Trustees Bhd v. Cimb Bank Bhd & Other Appeals
Jeffrey Tan, Azahar Mohamed, Aziah Ali JJCA
(Contract - Exemption clause - Whether exemption clause availed party guilty of wilful breach going to root of contract) [2013] 2 CLJ 306 [CA]

Pendaftar Pertubuhan v. Datuk Justine Jinggut
Abdull Hamid Embong, Suriyadi Halim Omar, Ahmad Maarop, Zaleha Zahari, Sulong Matjeraie FCJJ
(Jurisdiction; Unincorporated Associations - Courts - Judicial power - Whether court excluded from going into merits of dispute between members of political party) [2013] 2 CLJ 362 [FC]

Zaifull Muhammad v. PP & Another Appeal
Arifin Zakaria CJ, Abdull Hamid Embong, Zainun Ali, Sulong Matjeraie, Jeffrey Tan FCJJ
(Criminal Law - Dangerous Drugs Act 1952 - Section 39B(1)(a) - Appeal against conviction and sentence) [2013] 2 CLJ 383 [FC]

COURT OF APPEAL

Ajwa For Food Industries Co (Migop), Egypt v. Pacific Inter-Link Sdn Bhd & Another Appeal
Zainun Ali, Ramly Ali, Balia Yusof Wahi JJCA
(Arbitration - Arbitration tribunal - Jurisdiction - Whether parties agreed to arbitrate disputes - Challenging arbitration award) [2013] 2 CLJ 395 [CA]

HIGH COURT

ECM Coachbuilders Sdn Bhd v. Intrabuana Tour & Travel Sdn Bhd & Ors
Lee Heng Cheong JC
(Contract - Agreement - Loan - Failure to disburse loan) [2013] 2 CLJ 414 [HC]

PP v. Rutinin Suhaimin
Ravinthran Paramaguru JC
(Cyber Law - Improper use of network facilities - Posting of offensive remark - Online visitor book) [2013] 2 CLJ 427 [HC]

SUBJECT INDEX

ARBITRATION

Agreement - Reference of dispute - Whether sales contracts incorporated standard terms and conditions containing arbitration agreement - Whether appellant had knowledge of arbitration agreement - Arbitration Act 2005, ss. 8, 9, 37 & 42
Ajwa For Food Industries Co (Migop), Egypt v. Pacific Inter-Link Sdn Bhd & Another Appeal
(Zainun Ali, Ramly Ali, Balia Yusof Wahi JJCA) [2013] 2 CLJ 395 [CA]

Arbitration tribunal - Jurisdiction - Whether parties agreed to arbitrate disputes - Whether Arbitration Tribunal had jurisdiction to hear arbitration case
Ajwa For Food Industries Co (Migop), Egypt v. Pacific Inter-Link Sdn Bhd & Another Appeal
(Zainun Ali, Ramly Ali, Balia Yusof Wahi JJCA) [2013] 2 CLJ 395 [CA]

Award - Challenging arbitration award - Circumstances in which court may interfere with arbitral award - Limitation in scope of interference - Whether Arbitration Tribunal drawn wrong inferences of facts - Whether there was evidence of miscarriage of justice - Whether there was procedural impropriety warranting interference - Arbitration Act 2005, ss. 8, 9, 37 & 42
Ajwa For Food Industries Co (Migop), Egypt v. Pacific Inter-Link Sdn Bhd & Another Appeal
(Zainun Ali, Ramly Ali, Balia Yusof Wahi JJCA) [2013] 2 CLJ 395 [CA]

COMPANY LAW

Members' rights - Oppression - Petition under s. 181 Companies Act 1965 - Interpretation given to words 'just and equitable' in Ebrahimi v. Westbourne Galleries Ltd - Whether applicable to interpretation of oppression provision in s. 181 Companies Act 1965 - Whether respondents acted in manner oppressive to appellants - Whether interests of appellants prejudiced - Complaints related to agreement between shareholders and not in relation to conduct and management of company - Whether fell within ambit of s. 181 Companies Act 1965 - Whether breach by majority shareholder of shareholders' agreement amounted to oppressive conduct within meaning of s. 181 Companies Act 1965
Jet-Tech Materials Sdn Bhd & Anor v. Yushiro Chemical Industry Co Ltd & Ors And Another Appeal
(Raus Sharif PCA, Suriyadi Halim Omar, Ahmad Maarop, Zaleha Zahari, Sulong Matjeraie FCJJ) [2013] 2 CLJ 277 [FC]

CONTRACT

Agreement - Loan - Loan to finance purchase of 40 seater Coach - Failure to disburse loan - Whether second defendant's refusal to disburse loan to plaintiff due solely to first defendant's failure to comply with pre-disbursement conditions - Whether second defendant's responsibility to pay balance claimed by plaintiff
ECM Coachbuilders Sdn Bhd v. Intrabuana Tour & Travel Sdn Bhd & Ors
(Lee Heng Cheong JC) [2013] 2 CLJ 414 [HC]

Breach - Allegation of - Damages - Counterclaim for - Agreement to build 40 seater Coach between first defendant and plaintiff - Delivery of Coach to first defendant - Coach burnt down whilst in first defendant's possession, control and care - Whether ownership and risk of Coach transferred to first defendant - Whether first defendant wholly responsible for loss of Coach - Whether first defendant failed to adduce credible evidence to prove counterclaim
ECM Coachbuilders Sdn Bhd v. Intrabuana Tour & Travel Sdn Bhd & Ors
(Lee Heng Cheong JC) [2013] 2 CLJ 414 [HC]

Building contract - Claim for moneys owing - Agreement to build 40 seater Coach - Failure to pay balance of purchase price - Responsibility to pay balance claimed - Letter of offer showed first defendant buyer of Coach - Whether second defendant's refusal to disburse loan to plaintiff due solely to first defendant's failure to comply with pre-disbursement conditions - Whether plaintiff proved case on balance of probability
ECM Coachbuilders Sdn Bhd v. Intrabuana Tour & Travel Sdn Bhd & Ors
(Lee Heng Cheong JC) [2013] 2 CLJ 414 [HC]

Exemption clause - Effectiveness - Whether exemption clause availed party guilty of wilful breach going to root of contract - Bond-issuer fraudulently made off with redemption monies due to bondholders causing latter to hold bonds facility agent and trustee company liable for loss - Facility agent and trustee negligent in own ways for causing loss to bondholders - Whether exemption clause in facility agent's and trustee's contracts disentitled them on account of own negligence from claiming indemnity against bond-issuer - Whether exemption clause could not have been intended to apply where issuer itself guilty of fraud
Mayban Trustees Bhd v. Cimb Bank Bhd & Other Appeals
(Jeffrey Tan, Azahar Mohamed, Aziah Ali JJCA) [2013] 2 CLJ 306 [CA]

CRIMINAL LAW

Dangerous Drugs Act 1952 - Section 39B(1)(a) - Trafficking in cannabis - Appeal against conviction and sentence - Discrepancies in weight of drugs - Original charge stated that gross weight of drugs was 880 grams - Weight of drugs in amended charge stated as 799.4 grams - Whether serious discrepancies existed as to weight of drugs - Whether reasonable doubt created as to identity of drug exhibit - Whether discrepancies left unexplained by prosecution - Whether convictions safe
Zaifull Muhammad v. PP & Another Appeal
(Arifin Zakaria CJ, Abdull Hamid Embong, Zainun Ali, Sulong Matjeraie, Jeffrey Tan FCJJ) [2013] 2 CLJ 383 [FC]

CYBER LAW

Improper use of network facilities - Posting of offensive remark - Online visitor book - Whether communication made through a network facility - Whether communication made with intent to annoy, abuse, threaten or harass any person - Whether circumstantial evidence taken into consideration - Whether Internet Protocol address from which comment posted belonged to accused - Whether victim of offence must have actually felt annoyed or abused with remark - Communications and Multimedia Act 1998, s. 233
PP v. Rutinin Suhaimin
(Ravinthran Paramaguru JC) [2013] 2 CLJ 427 [HC]

JURISDICTION

Courts - Judicial power - Deregistration of political party by Registrar of Societies (ROS) under s. 13(1)(c)(ix) of Societies Act 1966 - Decision based on subjective opinion of ROS - Whether court could substitute subjective opinion of ROS - Whether court excluded from going into merits of dispute between members of political party - Societies Act 1966, s. 18C
Pendaftar Pertubuhan v. Datuk Justine Jinggut
(Abdull Hamid Embong, Suriyadi Halim Omar, Ahmad Maarop, Zaleha Zahari, Sulong Matjeraie FCJJ) [2013] 2 CLJ 362 [FC]

UNINCORPORATED ASSOCIATIONS

Societies - Political party - Deregistration by Registrar of Societies (ROS) under s. 13(1)(c)(ix) of Societies Act 1966 - Whether deregistration consequential to non-compliance with s. 16(1) notice - Whether ROS satisfied of existence of dispute - Whether subjective test applied - Societies Act 1966, ss. 13(1)(c)(ix), 13(2), 16(1)
Pendaftar Pertubuhan v. Datuk Justine Jinggut
(Abdull Hamid Embong, Suriyadi Halim Omar, Ahmad Maarop, Zaleha Zahari, Sulong Matjeraie FCJJ) [2013] 2 CLJ 362 [FC]

Legal Network Series Article

1. DIGITAL EVIDENCE THE END OF THE GOLDEN AGE ^{[Read excerpt]}
by: DR BRADLEY SCHATZ [2013] 1 LNS(A) xii

Principal Acts

Amending Acts

PU(A)

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