CLJ Bulletin, Issue 2012, Vol 11
16 March 2012
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CASE OF THE WEEK
NV ALLIANCE SDN BHD v. KETUA PENGARAH HASIL DALAM NEGERI
REVENUE LAW: Income tax - Deduction - Cash incentive payments - Payments made to appellant's employees upon achieving sales target - Whether payments deductible under Income Tax Act 1967 - Claim for - Whether payments are not 'hospitality' expenses and hence not 'entertainment' expenses - Income Tax Act 1967, ss. 18, 33(1) & 39(1)(l)
STATUTORY INTERPRETATION: Canons of construction - Income tax - Noscitur a sociis - Whether cash incentive payments comes within the meaning of 'or hospitality of any kind' - Whether preceding words to be taken into account - Income Tax Act 1967, s. 18
STATUTORY INTERPRETATION: Canons of construction - Income tax - Ejusdem generis rule - Whether cash incentive expenses comes within the meaning of 'or hospitality of any kind' - Whether words restricted to same genus - Income Tax Act 1967, s. 18
CITATION TITLE SUBJECT [2009] 1 LNS 1398 [HC] Mary Ong Guat Poh v. Cheang Khai Beng @ Cheang Peng Hooi & Anor Specific performance - Sale and purchase of property - Agreement between plaintiff's husband, the deceased and 1st defendant - Plaintiff maintaining property had to be decontrolled before balance of purchase price could be released to vendor - 1st defendant claiming plaintiff terminated sale and purchase agreement - Whether purchaser and plaintiff had demonstrated a continuous readiness and willingness to perform contractCONTRACT:
CONTRACT: Termination - Whether plaintiff terminated sale and purchase agreement via her son who was acting on her behalf - Plaintiff denying termination - Plaintiff waiting a long time for property to be decontrolled - Refusal to accept return of cheque for 10% deposit and balance purchase price - Whether plaintiff authorized her son to instruct lawyer to terminate sale and purchase agreement - Whether lawyer could terminate agreement without proper instructions from plaintiff as administratrix of her husband's estate
CONTRACT: Mistake - Sale and purchase of property - Clause 3(e) of sale and purchase agreement - No documentary or independent oral evidence to show that lawyer had communicated alleged mistake to deceased or 1st defendant - Whether mistake in clause 3(e) of the sale and purchase agreement
CONTRACT: Fraud - Specific performance - 1st defendant aware plaintiff wanted property to be decontrolled in line with agreement but failed to take necessary steps - Plaintiff forced to wait for property to be automatically decontrolled - Whether property fraudulently transferred to 2nd defendant before transfer could be effected to plaintiff - Whether 1st defendant was alter ego of 2nd defendant - Whether 1st and 2nd defendants committed fraud - Whether 2nd defendant not a bona fide purchaser for value
[2009] 1 LNS 1416 [HC] England Optical Group (M) Sdn Bhd v. Law Yoon Kuan & Anor Judicial review - Certiorari - Application for - Finding by Industrial Court that first respondent's dismissal was without just cause and excuse - Back wages and compensation ordered - Whether Industrial Court correct in concluding that first respondent was constructively dismissed without just cause and excuse - Whether applicant had showed that Industrial Court had not asked the right questions, or had taken into account irrelevant considerations, or failed to take into account relevant considerations, or had misapplied or misstated any principle of law - Whether any reason to disturb Industrial Court's awardADMINISTRATIVE LAW:
[2009] 1 LNS 1420 [HC] K-Zaq (M) Sdn Bhd v. Johnson Matthey Public Limited Company & Ors Oppression - Conduct amounting to oppression - Numerous complaints included transfer of shares from HICOM to 2nd and 3rd respondents and resolutions passed at meetings in breach of Joint Venture Agreement (JVA) and Articles - Increase in capital unfavourable to petitioner - Petitioner's shareholding in 4th respondent "diluted" - Whether respondents' conduct departed from standard of fair dealing or fair play - Whether affairs of 4th respondent conducted in a manner oppressive to petitioner, or in disregard of petitioner's interests - Whether any merits in petitioner's complaintsCOMPANIES AND CORPORATIONS:
[2009] 1 LNS 1423 [HC] PP v. Anuar Isa Khan @ Mohamad Rizal Abdullah Prosecution - Prima facie case - Eye witnesses identified accused as one who fired shots at victim resulting in his death - Gunshot wound to chest cause of death - Whether a prima facie case made out against accusedCRIMINAL PROCEDURE:
CRIMINAL PROCEDURE: Defence - Mistaken identity - Accused maintained it was Balakrishnan who fired shots that killed victim - Similarity between accused and Balakrishnan -Whether accused was the one who fired pistol at victim causing his death - Whether a reasonable doubt raised as to accused's guilt on the charge of murder
EVIDENCE: Identification evidence - Accused identified - Description by eye-witnesses and dock identification - Failure of prosecution to produce photographs of other suspects to the eye-witnesses - Whether doubt created as to whether eye-witnesses would have identified accused with such certainty had they been given opportunity of sighting other suspects
EVIDENCE: Adverse inference - Evidence Act 1950, s. 114(g) - Failure of prosecution to call material witnesses - Other suspects arrested with accused not called as witnesses - No explanation why other suspects not charged - Whether adverse inference should be drawn against prosecution's case
[2011] 1 LNS 452 [HC] Rohani Ghani v. Telco & Post Behad & Anor Parties - Proper plaintiff - Distribution agreement between plaintiff and defendants - Plaintiff sued under trading name - Whether improper for plaintiff to sue under trading name of limited company - Defendant dealing with plaintiff as well as the company after execution of agreement - Whether evidence showed that distribution agreement was signed on behalf of the company - Whether plaintiff's action in present form not maintainableCIVIL PROCEDURE:
COURT
SUPREME COURT INDIA
Santosh Kumari v. State Of Jammu And Kashmir & Ors
JM Panchal, HL Gokhale SCJJ
(Criminal Procedure; Criminal Law - Particulars to be given in charge - Nature of charge - Errors in charge) [2012] 2 CLJ 1 [SC India]COURT OF APPEAL
Cheah Theam Kheng v. City Centre Sdn Bhd (In Liquidation) & Other Appeals
Abdul Malik Ishak, Sulong Matjeraie, Ramly Ali JJCA
(Company Law - Liquidator, duties of - Committee of inspection - Whether liquidator could act alone) [2012] 2 CLJ 16 [CA]Kamariah Ali & Anor v. Majlis Agama Islam Dan Adat Melayu Terengganu & Ors
Abu Samah Nordin, Azhar Ma'ah, Clement Skinner JJCA
(Constitutional Law; Islamic Law - Apostasy - Syariah Court) [2012] 2 CLJ 56 [CA]Mohamed Tawfik Tun Dr Ismail v. HLG Credit Sdn Bhd & Anor
Zaleha Zahari, Ramly Ali, Zaharah Ibrahim JJCA
(Bankruptcy - Jurisdiction - Judgment creditor - Assigned rights in judgment debt) [2012] 2 CLJ 65 [CA]HIGH COURT
Associated Pan Malaysia Cement Sdn Bhd v. Westwood Development Sdn Bhd
Amelia Tee Hong Geok JC
(Land Law - Trespass - Encroachment on land - Whether lessee entitled to apply for declaration as to boundaries) [2012] 2 CLJ 81 [HC]Azham Othman; Ex P Affin Bank Bhd
Hamid Sultan Abu Backer J
(Bankruptcy - Notice - Leave of court - Mode of applying) [2012] 2 CLJ 96 [HC]James Sloan v. Sarala Devi Sockalingam
Yeoh Wee Siam JC
(Family Law - Divorce - Whether wife requires maintenance from husband) [2012] 2 CLJ 115 [HC]Re Chen Teck Foong & Ors And Another Case
Zabariah Mohd Yusof J
(Succession - Probate - Validity of will - Deceased mentally and physically weak - Suspicious circumstances surrounding execution of documents) [2012] 2 CLJ 135 [HC]SUBJECT INDEX
BANKRUPTCY
Jurisdiction - Jurisdiction of court - Judgment creditor in bankruptcy proceedings assigned rights in judgment debt - Whether bankruptcy court could decide on validity of assignment - Whether assignment absolute, valid and effective in law - Whether assignee could be substituted as judgment creditor in proceedings - Whether assignee required leave to enforce/execute assigned debt - Rules of the High Court 1980, O. 46 r. 2(1)(b) - Civil Law Act 1956, s. 4(3) - Courts of Judicature Act 1964, s. 24(c) - Limitation Act 1953, s. 6(3) - Bankruptcy Act 1967, s. 3(1)(i)
Mohamed Tawfik Tun Dr Ismail v. HLG Credit Sdn Bhd & Anor
(Zaleha Zahari, Ramly Ali, Zaharah Ibrahim JJCA) [2012] 2 CLJ 65 [CA]Notice - Leave to issue - Whether leave of court mandatory to commence bankruptcy action against social guarantor - Mode of applying for leave
Azham Othman; Ex P Affin Bank Bhd
(Hamid Sultan Abu Backer J) [2012] 2 CLJ 96 [HC]Notice - Whether bad in law - Bankruptcy Notice filed against social guarantor - Whether judgment creditor exhausted all avenues to recover debt from principal debtor - Whether leave of court mandatory to commence bankruptcy action against social guarantor - Mode of applying for leave - Bankruptcy Act 1967, s. 5(3)
Azham Othman; Ex P Affin Bank Bhd
(Hamid Sultan Abu Backer J) [2012] 2 CLJ 96 [HC]COMPANY LAW
Liquidation - Liquidator, duties of - Sale of company's property - Liquidator required by court order to act with a committee of inspection - Whether liquidator could sell company's lands without setting up any committee of inspection - Whether liquidator has unfettered powers to act as he deems fit - Whether directions of committee of inspection mandatory for sale of company's property - Companies Act 1965, ss. 236, 237(1) & 241(1)
Cheah Theam Kheng v. City Centre Sdn Bhd (In Liquidation) & Other Appeals
(Abdul Malik Ishak, Sulong Matjeraie, Ramly Ali JJCA) [2012] 2 CLJ 16 [CA]Winding up - Liquidators - Committee of inspection - Whether liquidator could act alone without appointing committee of inspection - Whether directions of committee of inspection mandatory for sale of company's property
Cheah Theam Kheng v. City Centre Sdn Bhd (In Liquidation) & Other Appeals
(Abdul Malik Ishak, Sulong Matjeraie, Ramly Ali JJCA) [2012] 2 CLJ 16 [CA]CONSTITUTIONAL LAW
Courts - Jurisdiction - Civil and Syariah Courts - Apostasy - Whether within the exclusive domain of Syariah Court - Federal Constitution, art. 121(1A) - Enakmen Mahkamah Syariah (Terengganu) 2001, s. 11(3)(b)(x) - Administration of Islamic Religious Affairs Enactment 1986, s. 205(2)
Kamariah Ali & Anor v. Majlis Agama Islam Dan Adat Melayu Terengganu & Ors
(Abu Samah Nordin, Azhar Ma'ah, Clement Skinner JJCA) [2012] 2 CLJ 56 [CA]CRIMINAL LAW
Penal Code 1860 - Sections 34, 114 and 149 - Nature of charge, when any of these sections is involved - Reiterated, in such a case charge is a rolled-up one involving direct liability and constructive liability without specifying who are directly liable and who are sought to be made constructively liable - Criminal Procedure Code, 1973, ss. 211 to 215
Santosh Kumari v. State Of Jammu And Kashmir & Ors
(JM Panchal, HL Gokhale SCJJ) [2012] 2 CLJ 1 [SC India]CRIMINAL PROCEDURE
Criminal Procedure Code 1973 - Sections 228, 240 and 211 to 214 - Proper framing of charge - Requirements of - Accused should be informed with certainty and accuracy the exact nature of charge brought against him - Accused person must be able to know substantive charge he will have to meet and to be ready for it before evidence is given - Particulars necessary to be given in charge depends upon facts and circumstances of each case - Criminal trial - Charge (paras 15 to 18)
Santosh Kumari v. State Of Jammu And Kashmir & Ors
(JM Panchal, HL Gokhale SCJJ) [2012] 2 CLJ 1 [SC India]Criminal Procedure Code, 1973 - Sections 211 to 215, 226 to 228 and 464(1) - Framing of charge - Particulars to be stated - Description of offences, if required beyond what is stated in ss. 211 to 214 - Prejudice - Whether caused - Stage to which trial had progressed - Relevance of - Charges framed against accused for committing rioting and murder - Particulars required by law stated by trial court while framing charge - Nature of charge was clearly understood by accused, which was evident from: (i) finding recorded by trial court after framing charge that nature of charge was very well understood by accused, (ii) averments made in accused's revision petition challenging order framing charges, and (iii) nature of cross examination of eyewitnesses by accused - There was nothing to suggest or indicate that accused was misled or failure of justice was occasioned by any error or omission in charge - Five witnesses had already been examined and supported prosecution - Fact that trial against accused has/had made considerable progress inasmuch as material evidence of eyewitnesses to occurrences was recorded by trial court could not have been ignored while deciding question whether proper charge against each accused was framed or not - Held, High Court's order setting aside order framing charge deserves to be set aside - Trial court directed to complete trial as expeditiously as possible - Ranbir Penal Code, 1989 (2 of 1989 Smvt.) (1932 AD) - Secions 302, 109, 147, 148 and 149 - Criminal Procedure Code, 1989 Smvt. (1933 AD) - Sections 267, 268 and 269, Ch. XIX, ss. 561-A and 225 - Penal Code, 1860, ss. 302, 109, 147, 148 and 149 (paras 21 to 33)
Santosh Kumari v. State Of Jammu And Kashmir & Ors
(JM Panchal, HL Gokhale SCJJ) [2012] 2 CLJ 1 [SC India]Criminal Procedure Code, 1973 - Section 439 - Bail - Grant of bail - Sustainability of - High Court set aside order passed by trial court framing charge and directed release of accused persons pending consideration of prosecution case for framing charge by trial court - High Court granted temporary bail on ground that accused were facing trial over a period of three years - Record does not show that prosecution was responsible in any manner at all for so-called delay - Accused are involved in commission of a heinous crime like murder - Witnesses were physically assaulted and threatened in court premises - They were also warned that if they gave depositions against accused they would be killed - Trial court rightly refused bail considering gravity of offence and apprehending that accused would tamper with evidence - Held, High Court while granting bail to accused has completely ignored and overlooked relevant factors which weigh heavily against accused - Release of accused on interim bail deserves to be set aside - Ranbir Penal Code, 1989 (2 of 1989 Smvt.) (1932 AD) - Sections 302, 109, 147, 148 and 149 - Penal Code, 1860, ss. 302, 109, 147, 148 and 149 (paras 11 and 35 to 39)
Santosh Kumari v. State Of Jammu And Kashmir & Ors
(JM Panchal, HL Gokhale SCJJ) [2012] 2 CLJ 1 [SC India]Criminal trial - Practice and Procedure - Generally - Procedural Laws - Mere technicalities not to frustrate ends of justice - Irregularity is curable unless accused is prejudiced - Errors in charge, or even a total absence of a charge is curable - Criminal Procedure Code, 1973, ss. 211, 215 and 464 (para 17)
Santosh Kumari v. State Of Jammu And Kashmir & Ors
(JM Panchal, HL Gokhale SCJJ) [2012] 2 CLJ 1 [SC India]FAMILY LAW
Divorce - Division of matrimonial asset - Wife contributed in kind to acquisition and enhancement of asset - Whether granting wife 20% share of net proceeds from sale of asset reasonable - Whether wife financially unstable and requires maintenance from husband - Factors to consider - Law Reform (Marriage and Divorce) Act 1976, ss. 53, 54, 76, 77 & 78
James Sloan v. Sarala Devi Sockalingam
(Yeoh Wee Siam JC) [2012] 2 CLJ 115 [HC]Divorce - Maintenance - Whether wife financially unstable and requires maintenance from husband - Factors to consider - Whether wife contributed equally to breakdown of marriage - Whether full amount of maintenance granted - Law Reform (Marriage and Divorce) Act 1976, ss. 53, 54 & 77
James Sloan v. Sarala Devi Sockalingam
(Yeoh Wee Siam JC) [2012] 2 CLJ 115 [HC]ISLAMIC LAW
Apostasy - Jurisdiction - Whether within the exclusive domain of Syariah Court - Federal Constitution, art. 121(1A) - Enakmen Mahkamah Syariah (Terengganu) 2001, s. 11(3)(b)(x) - Administration of Islamic Religious Affairs Enactment 1986, s. 205(2)
Kamariah Ali & Anor v. Majlis Agama Islam Dan Adat Melayu Terengganu & Ors
(Abu Samah Nordin, Azhar Ma'ah, Clement Skinner JJCA) [2012] 2 CLJ 56 [CA]LAND LAW
Trespass - Encroachment on land - Lessee of Quarry Land claiming encroachment by adjacent land owner - Demarcation survey plan approved by Director of Survey and Mapping - Whether lessee entitled to apply for declaration as to boundaries of the Quarry Land - Whether demarcation plan conclusive evidence of the boundaries - Whether State Government's approval of adjacent land owner's land application had effect of changing boundaries of Quarry Land - National Land Code, s. 396
Associated Pan Malaysia Cement Sdn Bhd v. Westwood Development Sdn Bhd
(Amelia Tee Hong Geok JC) [2012] 2 CLJ 81 [HC]SUCCESSION
Probate - Validity of will - Photocopy of alleged will - Whether failure to file original copy in court fatal - Two wills and Power of Attorney of same date bearing different markings of deceased - Deceased mentally and physically weak, irrational and terminally ill at material time - Whether petitioner proved deceased had testamentary capacity to execute wills - Whether petitioner dispelled suspicious circumstances surrounding execution of documents - Rules of the High Court 1980, O. 71 r. 7(1) - Evidence Act 1950, ss. 64 & 65
Re Chen Teck Foong & Ors And Another Case
(Zabariah Mohd Yusof J) [2012] 2 CLJ 135 [HC]
a) Legal Network Series Articles
1. Criminal Justice In The 21st Century [Read
excerpt]
By The RT. Hon. Lord Justice Leveson*
NUMBER TITLE
DATE COMING INTO FORCE
REPEALING
ACT 739 Perumahan Rakyat 1Malaysia Act 2012 Not Yet In Force - Nil - ACT 740 Veterans Act 2012 Not Yet In Force - Nil - ACT 741 Postal Services Act 2012 Not Yet In Force - Nil - ACT 742 Finance Act 2012 See sections 3, 26, 30, 32 and 35 of Act 742 respectively - Nil - ACT 743 Limited Liability Partnerships Act 2012 Not Yet In Force - Nil -
NUMBER TITLE
DATE COMING INTO FORCE
PRINCIPAL / AMENDING ACT NO
ACT A1421 Police (Amendment) Act 2012 Not Yet In Force ACT 344 ACT A1422 Criminal Procedure Code (Amendment) Act 2010 (Amendment) Act 2012 Not Yet In Force ACT 593 ACT A1423 Criminal Procedure Code (Amendment) Act 2012 Not Yet In Force ACT 593 ACT A1424 Evidence (Amendment) Act 2012 Not Yet In Force ACT 56 ACT A1425 Standards Of Malaysia (Amendment) Act 2012 Not Yet In Force ACT 549
NUMBER TITLE DATE OF PUBLICATION DATE COMING INTO FORCE PRINCIPAL / AMENDING ACT NO
PU(A) 070/2012 Money Services Business (Licensing) Regulations 2012 5 March 2012 1 December 2012 ACT 731 PU(A) 071/2012 Money Services Business (Remittance Business) Regulations 2012 5 March 2012 1 December 2011 ACT 731 PU(A) 072/2012 Money Services Business (Duties Of Licensees) Regulations 2012 5 March 2012 1 December 2011 ACT 731 PU(A) 073/2012 Customs (Values) (Crude Petroleum Oil) (No 5) Order 2012 8 March 2012 8 March 2012 ACT 235 PU(A) 074/2012 Dental (Amendment Of Second Schedule) Order 2012 8 March 2012 8 March 2012 ACT 51
NUMBER TITLE DATE OF PUBLICATION DATE COMING INTO FORCE PRINCIPAL / AMENDING ACT NO
PU(B) 062/2012 Appointment Under Subsection 5(1) Of The Enforcement Agency Integrity Commission Act 2009 2 March 2012 2 March 2012 ACT 700 PU(B) 063/2012 Appointment Of Deputy Public Prosecutors Of The Criminal Procedure Code 6 March 2012 6 March 2012 ACT 593 PU(B) 064/2012 Notification Of The Date And Duration Of Sales At Cheap Sale Price For The Calendar Year 2012 6 March 2012 6 March 2012 ACT 730 PU(B) 065/2012 Notice To Third Parties Of The Anti-Money Laundering And Anti-Terrorism Financing Act 2001 6 March 2012 6 March 2012 ACT 613 PU(B) 066/2012 Exemption From Subsection 65ka(1) Of The Merchant Shipping Ordinance 1952 8 March 2012 15 March 2012 ORD 70/1952
NUMBER TITLE DATE COMING INTO FORCE PRINCIPAL / AMENDING ACT NO
DR 44/2011 Construction Industry Payment and Adjudication Bill 2011 - -
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