Bulletin_11

CLJ Bulletin, Issue 2011, Vol 11

25 March 2011

CLJ Law Malaysia

http://www.cljlaw.com

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New This Week	1. Legislation Highlights
	2. Articles
	a) Legal Network Series Articles
	3. Latest Cases
	a) Legal Network Series
	b) CLJ Volume 2 (Part 4) 2011
	c) CLJ Volume 2 (Part 5) 2011

1. Legislation Highlights

Principal Acts

NUMBER
TITLE

DATE COMING INTO FORCE

REPEALING

ACT 718 Agensi Inovasi Malaysia Act 2010 Not Yet In Force - Nil -

ACT 720 Malaysia Deposit Insurance Corporation Act 2011 31 December 2010 - Nil -

ACT 721 International Islamic Liquidity Management Corporation Act 2011 25 October 2010 - Nil -

ACT 722 Fees (Malaysian Meteorological Department (Validation) Act 2011 28 January 2011 - Nil -

ACT 723 Price Control And Anti-Profiteering Act 2011 Not Yet In Force - Nil -

ACT 724 National Visual Arts Development Board Act 2011 Not Yet In Force - Nil -

Amending Acts

NUMBER

TITLE

DATE COMING INTO FORCE

AMENDING

ACT A1387 Malaysian Timber Industry Board (Incorporation) (Amendment) Act 2010 Not Yet Inforce ACT 105

ACT A1388 Supply Act 2011 31 December 2010 - Nil -

ACT A1389 Bank Simpanan Nasional (Amendment) Act 2011 24 February 2011 [P.U. (B) 79/2011] ACT 146

ACT A1390 Moneylenders (Amendment) Act 2011 Not Yet Inforce ACT 400

ACT A1391 Road Transport (Amendment) Act 2011 31 January 2011 [P.U. (B) 37/2011] ACT 333

PU(A)

NUMBER TITLE DATE COMING INTO FORCE
PRINCIPAL ACT NO

PU(A) 058/2011 Proclamation By His Majesty The Yang Di-Pertuan Agong, By The Grace Of Allah, Supreme Head Of The States And Territories Of Malaysia 24 February 2011 ACT 000

PU(A) 059/2011 Proclamation By His Majesty The Yang Di-Pertuan Agong, By The Grace Of Allah, Supreme Head Of The States And Territories Of Malaysia 24 February 2011 ACT 000

PU(A) 060/2011 Weights And Measures (Amendment) Regulations 2010 - Corrigendum 24 February 2011 ACT 71

PU(A) 061/2011 Customs (Values) (Crude Petroleum Oil) (No 4) Order 2011 24 February 2011 ACT 235

PU(A) 062/2011 Customs (Values) (Palm Oil) (No 9) Order 2011 28 February 2011 ACT 235

PU(B)

NUMBER TITLE DATE COMING INTO FORCE
PRINCIPAL ACT NO

PU(B) 084/2011 Appointment Under Section 3 - Melaka 25 February 2011 ACT 19

PU(B) 085/2011 Appointment Under Section 3 - Melaka 25 February 2011 ACT 19

PU(B) 086/2011 Polling Districts, Polling Centres And Polling Hours - Kuala Krau, Pahang 25 February 2011 ACT 19

PU(B) 087/2011 Appointment Of Date Of Coming Into Operation 28 February 2011 ACT A1386

PU(B) 088/2011 Notice To Third Parties 28 February 2011 ACT 613

2. Articles

a) Legal Network Series Articles

1. Akta Kontrak 1950 (Akta 136): Keperluan Semakan Semula* ^{[Read
excerpt]}
By Sakina Shaik Ahmad Yusoff, Suzanna Mohamed Isa, Azimon Abdul Aziz

2. Costs Conference ^{[Read
excerpt]}
By Sir Anthony May*

3. Latest Cases

a) Legal Network Series

CITATION TITLE SUBJECT

[2009] 1 LNS 563 [HC] Century Wealth Sdn Bhd v. Wawasan Samudera Sdn Bhd

CONTRACT: Construction of terms of contract - Terms of payment - Plaintiff leasing land from Royal Sabah Turf Club (RSTC) and sub-letting to defendant - Plaintiff assigning rights under Head Lease to defendant for RM2,000,000.00 - Deed of assignment replacing sub-tenancy agreement - Deposit and advance rental of RM210,000.00 under sub-tenancy agreement to be set off against sum payable under deed of assignment - RTSC's consent to assignment not obtained within agreed deadline - Termination of deed of assignment and reversion to sub-tenancy agreement - Claim for deposit and advance rental of RM210,000.00 - Defendant claiming set off of RM210,000.00 against RM500,000.00 paid under aborted deed of assignment - Whether RM500,000.00 could be considered as payment under clause 2.2 of deed of assignment - Whether RM500,000.00 could be used to set off sum due under sub-tenancy agreement

[2009] 1 LNS 564 [HC] HIPA Corporation Sdn Bhd (In Liquidation) v. Danaharta Urus Sdn Bhd & Anor

CIVIL PROCEDURE: Locus standi - Sale of land - Claim that order for sale granted to 1^st defendant be set aside - Whether plaintiff has locus standi to maintain action - Originating Summons filed by contributory and not Liquidator - Letters of consent relied on by contributory signed by "Pegawai Insolvency Kanan" - Whether Liquidator includes "Pegawai Insolvency Kanan" - Whether letters of consent valid

[2009] 1 LNS 565 [HC] Bottling Machinery Sdn Bhd v. Zara Foodstuff Industries Sdn Bhd

CONTRACT: Breach - Whether alleged breach proved - Merchant agreement - Defendant rejecting malfunctioning tray erector - Plaintiff dismantling and removing tray erector from defendant's premises - Whether defendant entitled to reject tray erector without any payment whatsoever - Whether defendant breached terms and conditions of Merchant Agreement

SALE OF GOODS: Merchantable quality - Fitness for purpose - Whether tray erector performed in accordance with equipment description in confirmation order - Whether tray erector's non-performance attributed to defendant's failure to provide sufficient air pressure to the tray erector or an inherent defect - Whether defendant entitled to reject tray erector

[2009] 1 LNS 577 [HC] Nujaimi Mohamad Seruji v. Polis Diraja Malaysia Kontinjen Sarawak & Anor

ADMINISTRATIVE LAW: Judicial review - Application for - Certiorari - Termination from service with one month's notice - No disciplinary proceedings taken - Whether applicant dismissed or service terminated under contract of employment - 2^nd respondent/Senior Assistant Commissioner 1 signing letter of termination on behalf of Sarawak Police Commissioner - Whether 2^nd respondents proper authority to dismiss or terminate applicant - Whether s. 8(3) of the Police Act 1967 formed part of the terms of employment of the applicant - Whether applicant ought to have been accorded an opportunity to defend himself

[2009] 1 LNS 587 [HC] Thian Oon Kin v. Rekarya Consultant Group & 3 Ors

PROFESSIONS: Architects - Partnership dispute - Plaintiff claiming share of monies received from Permas Jaya Project pursuant to Deed of Withdrawal - 1^st defendant denying liability to pay as project monies went to LTR - Consideration of the true intention of the parties under Deed of Withdrawal - Defence containing admission that 1^st defendant received payments from Permas Jaya Sdn Bhd - Payments meant for LTR received by continuing partners of 1^st defendant - Whether plaintiff entitled to his dues under the Deed of Withdrawal

CITATION	TITLE	SUBJECT
[2009] 1 LNS 563 [HC]	Century Wealth Sdn Bhd v. Wawasan Samudera Sdn Bhd	CONTRACT: Construction of terms of contract - Terms of payment - Plaintiff leasing land from Royal Sabah Turf Club (RSTC) and sub-letting to defendant - Plaintiff assigning rights under Head Lease to defendant for RM2,000,000.00 - Deed of assignment replacing sub-tenancy agreement - Deposit and advance rental of RM210,000.00 under sub-tenancy agreement to be set off against sum payable under deed of assignment - RTSC's consent to assignment not obtained within agreed deadline - Termination of deed of assignment and reversion to sub-tenancy agreement - Claim for deposit and advance rental of RM210,000.00 - Defendant claiming set off of RM210,000.00 against RM500,000.00 paid under aborted deed of assignment - Whether RM500,000.00 could be considered as payment under clause 2.2 of deed of assignment - Whether RM500,000.00 could be used to set off sum due under sub-tenancy agreement
[2009] 1 LNS 564 [HC]	HIPA Corporation Sdn Bhd (In Liquidation) v. Danaharta Urus Sdn Bhd & Anor	CIVIL PROCEDURE: Locus standi - Sale of land - Claim that order for sale granted to 1^st defendant be set aside - Whether plaintiff has locus standi to maintain action - Originating Summons filed by contributory and not Liquidator - Letters of consent relied on by contributory signed by "Pegawai Insolvency Kanan" - Whether Liquidator includes "Pegawai Insolvency Kanan" - Whether letters of consent valid
[2009] 1 LNS 565 [HC]	Bottling Machinery Sdn Bhd v. Zara Foodstuff Industries Sdn Bhd	CONTRACT: Breach - Whether alleged breach proved - Merchant agreement - Defendant rejecting malfunctioning tray erector - Plaintiff dismantling and removing tray erector from defendant's premises - Whether defendant entitled to reject tray erector without any payment whatsoever - Whether defendant breached terms and conditions of Merchant Agreement SALE OF GOODS: Merchantable quality - Fitness for purpose - Whether tray erector performed in accordance with equipment description in confirmation order - Whether tray erector's non-performance attributed to defendant's failure to provide sufficient air pressure to the tray erector or an inherent defect - Whether defendant entitled to reject tray erector
[2009] 1 LNS 577 [HC]	Nujaimi Mohamad Seruji v. Polis Diraja Malaysia Kontinjen Sarawak & Anor	ADMINISTRATIVE LAW: Judicial review - Application for - Certiorari - Termination from service with one month's notice - No disciplinary proceedings taken - Whether applicant dismissed or service terminated under contract of employment - 2^nd respondent/Senior Assistant Commissioner 1 signing letter of termination on behalf of Sarawak Police Commissioner - Whether 2^nd respondents proper authority to dismiss or terminate applicant - Whether s. 8(3) of the Police Act 1967 formed part of the terms of employment of the applicant - Whether applicant ought to have been accorded an opportunity to defend himself
[2009] 1 LNS 587 [HC]	Thian Oon Kin v. Rekarya Consultant Group & 3 Ors	PROFESSIONS: Architects - Partnership dispute - Plaintiff claiming share of monies received from Permas Jaya Project pursuant to Deed of Withdrawal - 1^st defendant denying liability to pay as project monies went to LTR - Consideration of the true intention of the parties under Deed of Withdrawal - Defence containing admission that 1^st defendant received payments from Permas Jaya Sdn Bhd - Payments meant for LTR received by continuing partners of 1^st defendant - Whether plaintiff entitled to his dues under the Deed of Withdrawal

b. CLJ Volume 2 (Part 4) 2011

COURT

FEDERAL COURT

Sugu Nadaraja v. Timbalan Menteri Dalam Negeri, Malaysia & Ors
Arifin Zakaria, Zulkefli Makinudin, James Foong
(Preventive Detention; Criminal Procedure; Constitutional Law - Detention order - Habeas corpus - Fundamental liberties) [2011] 2 CLJ 369 [FC]

COURT OF APPEAL

Koh Tiong Hock v. PP
Tengku Baharudin Shah, Wan Adnan Mohamad, Sulong Matjeraie
(Criminal Law; Evidence - Dangerous Drugs Act 1952 - Trafficking - Evidence of knowledge and possession) [2011] 2 CLJ 377 [CA]

North East Plantations Sdn Bhd v. Pentadbir Tanah Daerah Dungun & Anor
Abu Samah Nordin, Hishamudin Mohd Yunus, Azhar Ma'ah
(Administrative Law; Land Law - Alienation - Revocation of - Whether done in bad faith) [2011] 2 CLJ 392 [CA]

PP v. Resty Agpalo & Ors
Suriyadi Halim Omar, Hasan Lah, Ahmad Maarop
(Criminal Law - Penal Code - Section 302 - Murder) [2011] 2 CLJ 441 [CA]

HIGH COURT

Firmpower Sdn Bhd & Ors v. Gabriel Dana & Ors
Ravinthran Paramaguru
(Betting, Gaming And Lottery; Civil Procedure; Local Government - Lottery - License - Suit against local government) [2011] 2 CLJ 456 [HC]

Tien Ying Hong Enterprise Sdn Bhd v. Beenion Sdn Bhd
Azahar Mohamed J
(Trademarks - Infringement of - Registered trademarks - Parallel importation) [2011] 2 CLJ 469 [HC]

SUBJECT INDEX

ADMINISTRATIVE LAW

Remedies - Mandamus - Alienation of State Land - Land alienated to applicant - Alienation revoked by State Authority before registration of title in appellant's name - Appellant already entered into possession of alienated land - Whether appellant had legitimate expectation to be issued with title to alienated land - Whether mandamus to issue
North East Plantations Sdn Bhd v. Pentadbir Tanah Daerah Dungun & Anor
(Abu Samah Nordin, Hishamudin Mohd Yunus, Azhar Ma'ah JJCA) [2011] 2 CLJ 392 [CA]

BETTING, GAMING AND LOTTERY

Lottery - Licence - Business of selling tickets for numbers forecast totalisator - Whether a lottery - Whether licence must be obtained from the local authority - Local Authorities (Licensing of Miscellaneous Occupation) (Omnibus Amendment) (No. 2) By-Laws, 1995 - Whether exempted from licensing requirements - Racing (Totalisator Board) Act 1961
Firmpower Sdn Bhd & Ors v. Gabriel Dana & Ors
(Ravinthran Paramaguru JC) [2011] 2 CLJ 456 [HC]

CIVIL PROCEDURE

Injunction - Interim injunction - Application for interlocutory injunction against local authority - Whether interim injunction can be issued against local authority
Firmpower Sdn Bhd & Ors v. Gabriel Dana & Ors
(Ravinthran Paramaguru JC) [2011] 2 CLJ 456 [HC]

Injunction - Suit against local government - Whether local authorities subject to injunctions
Firmpower Sdn Bhd & Ors v. Gabriel Dana & Ors
(Ravinthran Paramaguru JC) [2011] 2 CLJ 456 [HC]

CONSTITUTIONAL LAW

Fundamental liberties - Preventive detention - Detention under Emergency (Public Order and Prevention of Crime) Ordinance 1969 - Deputy Minister issued detention order under s. 4(1) Ordinance relying on a report by non-designated police officer - No report as envisaged under s. 3(3) Ordinance - Validity of detention order - Procedural non-compliance in appellant's detention - Emergency (Public Order and Prevention of Crime) Ordinance 1969, ss. 3(3), 4(1)
Sugu Nadaraja v. Timbalan Menteri Dalam Negeri, Malaysia & Ors
(Arifin Zakaria CJ (Malaya), Zulkefli Makinudin, James Foong FCJJ) [2011] 2 CLJ 369 [FC]

CRIMINAL LAW

Dangerous Drugs Act 1952 - Section 39B - Trafficking - Allegation of - Definition of trafficking - Dangerous Drugs Act 1952, s. 2 - Inclusion of word 'exporting' - Whether puts distribution abroad within contemplation of law - Intention of Dangerous Drugs Act 1952 - Whether to encompass drugs brought into and out of the country
Koh Tiong Hock v. PP
(Tengku Baharudin Shah, Wan Adnan Mohamad, Sulong Matjeraie JJCA) [2011] 2 CLJ 377 [CA]

Dangerous Drugs Act 1952 - Section 39B - Trafficking - Drugs taped to body of appellant to avoid detection - Whether an inescapable inference that appellant had knowledge of dangerous drugs - Admission of transporting drugs out of country - Whether there was overwhelming evidence of knowledge, possession and trafficking as defined under s. 2 Dangerous Drugs Act 1952
Koh Tiong Hock v. PP
(Tengku Baharudin Shah, Wan Adnan Mohamad, Sulong Matjeraie JJCA) [2011] 2 CLJ 377 [CA]

Penal Code - Section 302 - Murder - Appeal against acquittal - Prima facie case - Whether established - Failure to call important witnesses - Adverse inference - Whether applied - Direct evidence - Whether there was direct evidence to implicate respondents with murder - Circumstantial evidence - Whether of such weak quality that no judge would convict
PP v. Resty Agpalo & Ors
(Suriyadi Halim Omar, Hasan Lah, Ahmad Maarop JJCA) [2011] 2 CLJ 441 [CA]

Penal Code - Sections 302 and 34 - Murder - Common intention - Whether proved - Prima facie case - Whether established - Failure to call important witnesses - Adverse inference - Whether applied - Direct evidence - Whether there was direct evidence to implicate respondents with murder - Circumstantial evidence - Whether of such weak quality that no judge would convict
PP v. Resty Agpalo & Ors
(Suriyadi Halim Omar, Hasan Lah, Ahmad Maarop JJCA) [2011] 2 CLJ 441 [CA]

CRIMINAL PROCEDURE

Habeas corpus - Emergency (Public Order and Prevention of Crime) Ordinance 1969, detention under - Deputy Minister issued detention order under s. 4(1) Ordinance relying on a report by non-designated police officer - No report as envisaged under s. 3(3) Ordinance - Validity of detention order - Procedural non-compliance in appellant's detention - Emergency (Public Order and Prevention of Crime) Ordinance 1969, ss. 3(3), 4(1)
Sugu Nadaraja v. Timbalan Menteri Dalam Negeri, Malaysia & Ors
(Arifin Zakaria CJ (Malaya), Zulkefli Makinudin, James Foong FCJJ) [2011] 2 CLJ 369 [FC]

EVIDENCE

Statement - Cautioned statement - Admissibility - Voluntariness - Whether circumstances showed that statement voluntarily given - Whether admission as evidence allowed
Koh Tiong Hock v. PP
(Tengku Baharudin Shah, Wan Adnan Mohamad, Sulong Matjeraie JJCA) [2011] 2 CLJ 377 [CA]

LAND LAW

Alienation - Revocation of alienation - Alienation revoked by State Authority before registration of title in appellant's name - Appellant already entered into possession of alienated land - Whether appellant had legitimate expectation to be issued with title to alienated land - Whether revocation done in bad faith - Whether revocation of alienation null and void - National Land Code ss. 40(a), 48, 78(3), 80(3)
North East Plantations Sdn Bhd v. Pentadbir Tanah Daerah Dungun & Anor
(Abu Samah Nordin, Hishamudin Mohd Yunus, Azhar Ma'ah JJCA) [2011] 2 CLJ 392 [CA]

Ownership - Alienation of State Land - Alienation revoked by State Authority before registration of title in appellant's name - Appellant already entered into possession of alienated land - Whether appellant had legitimate expectation to be issued with title to alienated land - Whether revocation done in bad faith - Whether revocation of alienation null and void - National Land Code ss. 40(a), 48, 78(3), 80(3)
North East Plantations Sdn Bhd v. Pentadbir Tanah Daerah Dungun & Anor
(Abu Samah Nordin, Hishamudin Mohd Yunus, Azhar Ma'ah JJCA) [2011] 2 CLJ 392 [CA]

LOCAL GOVERNMENT

Licence - City Council - Business of selling tickets for numbers forecast totalisator - Whether a lottery - Whether licence must be obtained from the local authority - Local Authorities (Licensing of Miscellaneous Occupation) (Omnibus Amendment) (No. 2) By-Laws, 1995 - Whether exempted from licensing requirements - Racing (Totalisator Board) Act 1961
Firmpower Sdn Bhd & Ors v. Gabriel Dana & Ors
(Ravinthran Paramaguru JC) [2011] 2 CLJ 456 [HC]

PREVENTIVE DETENTION

Detention order - Detention under Emergency (Public Order and Prevention of Crime) Ordinance 1969 - Habeas corpus - Deputy Minister issued detention order under s. 4(1) Ordinance relying on a report by non-designated police officer - No report as envisaged under s. 3(3) Ordinance - Validity of detention order - Procedural non-compliance in appellant's detention - Emergency (Public Order and Prevention of Crime) Ordinance 1969, ss. 3(3), 4(1)
Sugu Nadaraja v. Timbalan Menteri Dalam Negeri, Malaysia & Ors
(Arifin Zakaria CJ (Malaya), Zulkefli Makinudin, James Foong FCJJ) [2011] 2 CLJ 369 [FC]

TRADEMARKS

Infringement of - Registered trademarks - Import into Malaysia of goods bearing trademark "SEIZAIKEN" without trademark holder's consent - Whether defence of 'parallel import' applicable - Exclusive right to use trademark - Whether infringement of trademark established - Trade Marks Act 1976 s. 38
Tien Ying Hong Enterprise Sdn Bhd v. Beenion Sdn Bhd
(Azahar Mohamed J) [2011] 2 CLJ 469 [HC]

Parallel importation - Meaning, of - Whether parallel importation permitted under Malaysian laws - Trade Marks Act 1976 ss. 35, 40(1)(d)
Tien Ying Hong Enterprise Sdn Bhd v. Beenion Sdn Bhd
(Azahar Mohamed J) [2011] 2 CLJ 469 [HC]

c. CLJ Volume 2 (Part 5) 2011

COURT

COURT OF APPEAL

Mohammad Abdullah v. PP
Hasan Lah, Ahmad Maarop, Azhar Ma’ah
(Criminal Law; Evidence - Corroboration - Drug trafficking - Similar fact evidence - Statement - Admissibility) [2011] 2 CLJ 481 [CA]

Victor Glamour Sdn Bhd v. Tan Kim Cheng
Low Hop Bing, Syed Ahmad Helmy, Zaharah Ibrahim
(Land Law - Private caveats - Removal - National Land Code, s. 327) [2011] 2 CLJ 508 [CA]

HIGH COURT

Arunamari Plantations Sdn Bhd & Ors v. Lembaga Minyak Sawit Malaysia & Ors
Prasad Sandosham Abraham
(Revenue Law; Customs And Excise; Constitutional Law - Customs duty - Cess on oil palm product) [2011] 2 CLJ 519 [HC]

Bax Global (Malaysia) Sdn Bhd v. Sukhdev Singh Pritam Singh & Anor
Hadhariah Syed Ismail
(Administrative Law; Labour Law - Certiorari - Termination of service - Industrial Court - Award) [2011] 2 CLJ 534 [HC]

Bumiputra-Commerce Bank Bhd v. Siti Fatimah Mohd Zain
Harmindar Singh Dhaliwal
(Banking; Contract - Overdraft facility - Wrongful creation in favour of defendant - Mistake of fact) [2011] 2 CLJ 545 [HC]

Lebuhraya Shapadu Sdn Bhd v. Tuah Guards (M) Sdn Bhd
Lee Swee Seng
(Civil Procedure - Execution - Stay - Summary judgment - Winding up) [2011] 2 CLJ 560 [HC]

Syed Ahmad Jamal v. Dato Bandar Kuala Lumpur
Azahar Mohamed
(Copyright - Artistic works - Infringement - Moral rights - Copyright Act 1987, s. 25(2)) [2011] 2 CLJ 569 [HC]

SUBJECT INDEX

ADMINISTRATIVE LAW

Judicial review - Certiorari - Application to quash Industrial Court award holding that 1st respondent constructively dismissed by applicant - Chairman who handed down award was not Chairman who heard case - No prejudice to applicant when case not heard de novo - Chairman’s findings on redundancy wholly unsupported by evidence - Industrial Court’s ruling on constructive dismissal instead of redundancy a jurisdictional error of law - Backwages and compensation, principles of - Industrial Relations Act 1967, s. 23(6)
Bax Global (Malaysia) Sdn Bhd v. Sukhdev Singh Pritam Singh & Anor
(Hadhariah Syed Ismail JC) [2011] 2 CLJ 534 [HC]

BANKING

Banker and customer - Overdraft facility - Wrongful creation in favour of defendant - Defendant made withdrawals on facility - Plaintiff froze defendant’s account and demanded repayment of moneys withdrawn - Counterclaim by defendant for damages - Mistake of fact - Fraud - Restitution - Unjust enrichment - Change of position - Defendant obliged to repay moneys - Defendant not entitled to damages
Bumiputra-Commerce Bank Bhd v. Siti Fatimah Mohd Zain
(Harmindar Singh Dhaliwal JC) [2011] 2 CLJ 545 [HC]

CIVIL PROCEDURE

Execution - Stay - Application for - Summary judgment - Winding up - Recoverability of judgment sum - Irreparable damage - Overall justice of case - Conditional stay order
Lebuhraya Shapadu Sdn Bhd v. Tuah Guards (M) Sdn Bhd
(Lee Swee Seng JC) [2011] 2 CLJ 560 [HC]

CONTRACT

Mistake - Mistake of fact - Wrongful creation of overdraft facility in favour of defendant - Defendant made withdrawals on facility - Plaintiff froze defendant’s account and demanded repayment of moneys withdrawn - Counterclaim by defendant for damages - Fraud - Restitution - Unjust enrichment - Change of position - Defendant obliged to repay moneys - Defendant not entitled to damages
Bumiputra-Commerce Bank Bhd v. Siti Fatimah Mohd Zain
(Harmindar Singh Dhaliwal JC) [2011] 2 CLJ 545 [HC]

COPYRIGHT

Infringement - Moral rights - Whether a sculpture is artistic work protected under Copyright Act 1987 - Significant modification and distortion of plaintiff’s sculpture without plaintiff’s consent - Whether plaintiff’s moral rights in sculpture infringed - Award of exemplary and aggravated damages for infringement of moral rights
Syed Ahmad Jamal v. Dato Bandar Kuala Lumpur
(Azahar Mohamed J) [2011] 2 CLJ 569 [HC]

Moral rights - Definition of moral rights - Right of paternity - Right of integrity - Removal of plinth containing plaintiff’s name as sculptor - Whether moral right of plaintiff to be identified as author of sculpture infringed -Significant modification and distortion of plaintiff’s sculpture without plaintiff’s consent - Whether plaintiff’s right of integrity in sculpture infringed - Statutory duty to seek consent of sculptor before modifying sculpture - Copyright Act 1987, s. 25(2)
Syed Ahmad Jamal v. Dato Bandar Kuala Lumpur
(Azahar Mohamed J) [2011] 2 CLJ 569 [HC]

CRIMINAL LAW

Dangerous Drugs Act 1952 - Section 39B(1)(a) - Trafficking in 2,018.04 grams of cannabis - Appeal against conviction and sentence - Whether evidence of accomplice corroborated by conduct of accused - Whether similar fact evidence of previous drug trafficking activities properly admitted - Whether oral admission inadmissible due to ambiguity regarding actual words used - Whether absence of finger-print evidence fatal to prosecution case - Whether mens rea possession of drugs by appellant proven - Whether failure of trial judge to state that prosecution case proven is beyond reasonable doubt was fatal
Mohammad Abdullah v. PP
(Hasan Lah, Ahmad Maarop, Azhar Ma’ah JJCA) [2011] 2 CLJ 481 [CA]

EVIDENCE

Corroboration - Drug trafficking - Testimony of accomplice witness - Whether evidence of accomplice corroborated by conduct of accused
Mohammad Abdullah v. PP
(Hasan Lah, Ahmad Maarop, Azhar Ma’ah JJCA) [2011] 2 CLJ 481 [CA]

Similar fact evidence - Admission of - Drug trafficking - Whether evidence of previous drug trafficking activities properly admitted - Whether similar fact evidence outweighed its prejudicial effect - Evidence admissible to show possession of drugs was not accidental
Mohammad Abdullah v. PP
(Hasan Lah, Ahmad Maarop, Azhar Ma’ah JJCA) [2011] 2 CLJ 481 [CA]

Statement - Admissibility - Accused’s statement to police - Ambiguity in actual words spoken by accused - Statement inadmissible
Mohammad Abdullah v. PP
(Hasan Lah, Ahmad Maarop, Azhar Ma’ah JJCA) [2011] 2 CLJ 481 [CA]

LABOUR LAW

Employment - Termination of service - Certiorari - Application to quash Industrial Court award holding that 1st respondent constructively dismissed by applicant - Chairman who handed down award was not Chairman who heard case - No prejudice to applicant when case not heard de novo - Chairman’s findings on redundancy wholly unsupported by evidence - Industrial Court’s ruling on constructive dismissal instead of redundancy a jurisdictional error of law - Backwages and compensation, principles of - Industrial Relations Act 1967, s. 23(6)
Bax Global (Malaysia) Sdn Bhd v. Sukhdev Singh Pritam Singh & Anor
(Hadhariah Syed Ismail JC) [2011] 2 CLJ 534 [HC]

Industrial Court - Award - Certiorari - Application to quash Industrial Court award holding that 1st respondent constructively dismissed by applicant - Chairman who handed down award was not Chairman who heard case - No prejudice to applicant when case not heard de novo - Chairman’s findings on redundancy wholly unsupported by evidence - Industrial Court’s ruling on constructive dismissal instead of redundancy a jurisdictional error of law - Backwages and compensation, principles of - Industrial Relations Act 1967, s. 23(6)
Bax Global (Malaysia) Sdn Bhd v. Sukhdev Singh Pritam Singh & Anor
(Hadhariah Syed Ismail JC) [2011] 2 CLJ 534 [HC]

LAND LAW

Caveats - Private caveats - Removal - Appellant an aggrieved party having sufficient interest over land and entitled to apply for removal of caveats - Failure of respondent to initiate action to preserve interest in land - Caveatable interest, lack of - National Land Code, s. 327
Victor Glamour Sdn Bhd v. Tan Kim Cheng
(Low Hop Bing, Syed Ahmad Helmy, Zaharah Ibrahim JJCA) [2011] 2 CLJ 508 [CA]

REVENUE LAW

Customs duty - Cess on oil palm product - Application to strike out certain regulations of Malaysian Palm Oil Board Act 1998 and orders made there under - Violation of provisions of Act and Federal Constitution - Payment of cess into Consolidated Fund - Consultation with Minister of Finance - Exemption from tax - Discriminatory legislation - Purpose for collection of cess ultra vires the Act - Malaysian Palm Oil Board Act 1998, ss. 33, 35, 77(1) - Federal Constitution, arts. 8, 97(1)
Arunamari Plantations Sdn Bhd & Ors v. Lembaga Minyak Sawit Malaysia & Ors
(Prasad Sandosham Abraham JC) [2011] 2 CLJ 519 [HC]

CASE OF THE WEEK

S VIGNESWARAN M SANASEE v. MAJU INSTITUTE OF EDUCATIONAL DEVELOPMENT (MIED) (NO 2)

COMPANY LAW: Derivative action - Application for leave to bring action on behalf of defendant company - Suit against trustees of defendant - Serious allegations of wrongdoings - Basis of allegations - Locus standi of applicant - Compliance with procedural requirements - Good faith of applicant - Legitimate expectation of applicant - Alleged wrongdoers in control of Board of Trustees - Defendant afforded opportunity to recover monies lost by way of action - Companies Act 1965, s. 181A(1), (4)(a), s. 181B(1), s. 181E

CIVIL PROCEDURE: Action - Derivative action - Application for leave to bring action on behalf of defendant company - Suit against trustees of defendant - Serious allegations of wrongdoings - Basis of allegations - Locus standi of applicant - Compliance with procedural requirements - Good faith of application - Legitimate expectation of applicant - Alleged wrongdoers in control of Board of Trustees - Defendant afforded opportunity to recover monies lost by way of action - Companies Act 1965, s. 181A(1), (4)(a), s. 181B(1), s. 181E

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NUMBER	TITLE	DATE COMING INTO FORCE	REPEALING
ACT 718	Agensi Inovasi Malaysia Act 2010	Not Yet In Force	- Nil -
ACT 720	Malaysia Deposit Insurance Corporation Act 2011	31 December 2010	- Nil -
ACT 721	International Islamic Liquidity Management Corporation Act 2011	25 October 2010	- Nil -
ACT 722	Fees (Malaysian Meteorological Department (Validation) Act 2011	28 January 2011	- Nil -
ACT 723	Price Control And Anti-Profiteering Act 2011	Not Yet In Force	- Nil -
ACT 724	National Visual Arts Development Board Act 2011	Not Yet In Force	- Nil -