CLJ Bulletin, Issue 2008, Vol 12
23 May 2008
CLJ Law MALAYSIA
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| New This Week - | 1. CLJ May (Part 2) 2008 |
| 2. CLJ May (Part 3) 2008 |
COURT
FEDERAL COURT
Futuristic Builders Sdn Bhd v. Harinder Singh & Ors
(Agreement - Validity - Agreement entered into by beneficiaries of estate before
letters of administration issued) [2008] 3 CLJ
117
COURT OF APPEAL
Cheah Swee Fah v. Bank Bumiputra Malaysia Bhd & Anor
(Banking - Banker and customer - Duty of care) [2008] 3 CLJ
132
Chong Chee Liong v. PP
(Prevention of Corruption Act 1961 - Section 4(c)) [2008] 3 CLJ
146
PP v. Marwan Ismail
(Criminal procedure - Further remand, lawfulness of) [2008] 3 CLJ
164
Ramzan Jantan v. Timbalan Ketua Polis Johor & Anor
(Police - Dismissal) [2008] 3 CLJ
175
Shayne Corey Cahill v. Kaka Singh Dhaliwal
(Malaysian Racing Association - Jurisdiction) [2008] 3 CLJ
198
HIGH COURT
FW Industries Bhd v. Suitech Sdn Bhd
(Winding up - Applications by way of summons-in-chambers filed shortly before hearing
date of petition) [2008] 3 CLJ
210
PECD Construction Sdn Bhd v. Freehold Point Sdn Bhd
(Injunction - Injunction against a s. 218 notice of Companies Act 1965) [2008] 3 CLJ
215
SUBJECT INDEX
BANKING
Banker and customer - Duty of care - Bank released payments to housing developer upon
issuance of architect's certificate - Whether bank to check veracity of certificate issued
- Whether also to check if works under certificate completed
Cheah Swee Fah v. Bank Bumiputra Malaysia Bhd & Anor
(Zulkefli Makinudin, Raus Sharif & Heliliah Mohd Yusof JJCA) [2008] 3 CLJ
132 [CA]
CIVIL PROCEDURE
Injunction - Injunction against a s. 218 notice of Companies Act 1965 - Notice based on
defendant's claim for balance of purchase price for goods sold and delivered to plaintiff
- Plaintiff's complaints on quality and shortfall of goods - Whether plaintiff entitled to
raise complaints since complaints not made within reasonable time goods received - Whether
plaintiff's allegation of fraud substantiated - Whether plaintiff deemed to have admitted
to debt by not disputing amount in defendant's letter
PECD Construction Sdn Bhd v. Freehold Point Sdn Bhd
(Vincent Ng J) [2008] 3 CLJ
215 [HC]
COMPANY LAW
Winding up - Petition - Applications by way of summons-in-chambers filed shortly before
hearing date of petition - Whether short service - Whether applications should be
dismissed - Companies Winding Up Rules 1972, r. 7(2) - Companies Act 1965, ss. 222, 226,
218(1)(f)(i)
FW Industries Bhd v. Suitech Sdn Bhd
(Hishamudin Mohd Yunus J) [2008] 3 CLJ
210 [HC]
Winding up - Petition - Stay of proceedings - Forum - Whether stay application should
be made in court where first petition was filed - Interpretation of word "the
Court" in s. 222 Companies Act 1965
FW Industries Bhd v. Suitech Sdn Bhd
(Hishamudin Mohd Yunus J) [2008] 3 CLJ
210 [HC]
CONTRACT
Agreement - Validity - Agreement entered into by two beneficiaries authorised by other
beneficiaries of estate of deceased - No letters of administration issued at material time
- Neither was agreement executed in beneficiaries' personal capacity - Whether agreement
was enforceable once letters of administration were issued
Futuristic Builders Sdn Bhd v. Harinder Singh & Ors
(Alaudin Mohd Sheriff, Arifin Zakaria, & Hashim Yusoff FCJJ) [2008] 3 CLJ
117 [FC]
CRIMINAL LAW
Prevention of Corruption Act 1961 - Section 4(c) - Knowingly using documents containing
false particulars to mislead principal - Whether accused convicted on uncorroborated
evidence of prosecution witnesses - Whether conviction should be set aside
Chong Chee Liong v. PP
(Low Hop Bing, Zainun Ali & Hasan Lah JJCA) [2008] 3 CLJ
146 [CA]
CRIMINAL PROCEDURE
Jurisdiction of court - Magistrate's court - Transfer of case to High Court - Whether
consent of Public Prosecutor required under s. 39B(3) Dangerous Drugs Act 1952 - Whether
s. 41A governing provision - Whether s. 41A should not be read subject to s. 39B
PP v. Marwan Ismail
(Mohd Ghazali Yusoff, Zulkefli Makinudin & Abdull Hamid Embong JJCA) [2008] 3 CLJ
164 [CA]
Prosecution - Commencement of prosecution - Charge for trafficking under s. 39B(1)
Dangerous Drugs Act 1952 - Transfer of case from magistrate's court to High Court -
Whether a further step in prosecution - Whether prosecution commences at High Court -
Whether s. 41A governing provision - Whether PP v. Oladotun Lukmanu Umaru & Ors
wrongly decided
PP v. Marwan Ismail
(Mohd Ghazali Yusoff, Zulkefli Makinudin & Abdull Hamid Embong JJCA) [2008] 3 CLJ
164 [CA]
Revision - Remand - Further remand, lawfulness of - Accused brought before magistrate's
court for charge under s. 39B(1) Dangerous Drugs Act 1952 - Magistrate remanded accused
for further two months because chemist report not ready - Whether remand lawful - Whether
magistrate empowered to remand for charge under s. 39B(1) - Whether Pendakwa Raya v.
Ilamaran Kanniappan wrongly decided
PP v. Marwan Ismail
(Mohd Ghazali Yusoff, Zulkefli Makinudin & Abdull Hamid Embong JJCA) [2008] 3 CLJ
164 [CA]
POLICE
Disciplinary proceedings - Dismissal - Whether adjudicating authority took into account
officer's past records in dismissing him - Whether officer afforded opportunity to explain
or controvert his record of service - Whether procedural unfairness and breach of audi
alteram partem rule - Whether dismissal bad in law
Ramzan Jantan v. Timbalan Ketua Polis Johor & Anor
(Mohd Ghazali Yusoff, Low Hop Bing & Hasan Lah JJCA) [2008] 3 CLJ
175 [CA]
SUCCESSION
Administration - Agreement, validity of - Agreement entered into by two beneficiaries
authorised by other beneficiaries of estate of deceased - No letters of administration
issued at material time - Neither was agreement executed in beneficiaries' personal
capacity - Whether agreement was enforceable once letters of administration were issued -
Probate and Administration Act 1959, s. 39
Futuristic Builders Sdn Bhd v. Harinder Singh & Ors
(Alaudin Mohd Sheriff, Arifin Zakaria, & Hashim Yusoff FCJJ) [2008] 3 CLJ
117 [FC]
UNINCORPORATED ASSOCIATIONS
Societies - Malaysian Racing Association - Jurisdiction - Decision by Racing Stewards
to review jockey's appeal against sentence - Whether review within r. 18(2)(c) Malaysian
Racing Association Rules - Whether jurisdiction ousted with the filing of jockey's action
in court against sentence
Shayne Corey Cahill v. Kaka Singh Dhaliwal
(Low Hop Bing, Raus Sharif & Wan Adnan Muhamad JJCA) [2008] 3 CLJ
198 [CA]
ARTICLE
The Principle Proportionality In The Law Of Preventive Detention: Reconciling Rights And National Security by Dr Rusniah Ahmad [2008] 3 CLJ i
COURT
FEDERAL COURT
The Board Of Trustees Of The Sabah Foundation & Ors v. Datuk Syed Kechik Syed
Mohamed & Anor
(Whether inordinate delay in providing grounds of judgment affects validity of a
judgment) [2008] 3 CLJ
221
COURT OF APPEAL
Hii King Hiong v. Sarawak Securities Sdn Bhd
(Fresh evidence - Grounds for admission) [2008] 3 CLJ
257
Hock Chnay Sdn Bhd v. Bong Kong Min
(Construction - Term of payment - Deposit - Whether meaning clear and unambiguous) [2008] 3 CLJ
264
Mirra Sdn Bhd v. The Ayer Molek Rubber Company Bhd
(Default judgment - Setting aside, application for) [2008] 3 CLJ
273
HIGH COURT
Lai Moo Nui & Ors v. Maheendran VKN Pillay
(Judgment - Setting aside - Rules of the High Court 1980, O. 35 r. 1(2), 2) [2008] 3 CLJ
288
PP v. Dato' Seri Anwar Ibrahim; Re Counsel For Christopher Fernando's Objection To
Attorney-General's Application
(Contempt proceedings - Whether Attorney General had locus standi to represent judge)
[2008] 3
CLJ 296
PP v. David Chung Nyuk Vui
(Penal Code - Section 321 - Voluntarily causing hurt) [2008] 3 CLJ
302
SUBJECT INDEX
ADMINISTRATIVE LAW
Judicial proceedings - Judgments - Whether inordinate delay in providing grounds of
judgment affects validity of a judgment - Delay on its own not sufficient ground to
invalidate a judgment unless delay has caused court to misconstrue facts or misapply
evidence
The Board Of Trustees Of The Sabah Foundation & Ors v. Datuk Syed Kechik Syed
Mohamed & Anor
(Ariffin Zakaria, Augustine Paul & Zulkefli Makinudin FCJJ) [2008] 3 CLJ
221 [FC]
CIVIL PROCEDURE
Amendment - Defence - Counterclaim - Fresh evidence - Whether leave to amend could not
be granted because trial in action under appeal had reached final conclusion
Hii King Hiong v. Sarawak Securities Sdn Bhd
(Zulkefli Makinudin, Raus Sharif & Abdull Hamid Embong JJCA) [2008] 3 CLJ
257 [CA]
Appeal - Fresh evidence - Procedure - Grounds for admission - Whether conditions
satisfied - Determining influence - Rules of the Court of Appeal 1994, r. 7(3A) - Courts
of Judicature Act 1964, s. 69
Hii King Hiong v. Sarawak Securities Sdn Bhd
(Zulkefli Makinudin, Raus Sharif & Abdull Hamid Embong JJCA) [2008] 3 CLJ
257 [CA]
Interest - Judgment in default - Assessment of pre-judgment interest - Purposive
interpretation to statute - Whether default judgment not an irregular judgment - Civil Law
Act 1956, s. 11
Mirra Sdn Bhd v. The Ayer Molek Rubber Company Bhd
(James Foong, Abdull Hamid Embong & Vincent Ng JJCA) [2008] 3 CLJ
273 [CA]
Judgment - Default judgment - Setting aside, application for - Correct test to be
applied - Whether judgment regular or irregular - Whether wrong principles of law applied
Mirra Sdn Bhd v. The Ayer Molek Rubber Company Bhd
(James Foong, Abdull Hamid Embong & Vincent Ng JJCA) [2008] 3 CLJ
273 [CA]
Judgment - Default judgment - Setting aside, application for - Delay - Prescribed time
for applying to set aside default judgment - Rules of the High Court 1980, O. 42 r. 13
Mirra Sdn Bhd v. The Ayer Molek Rubber Company Bhd
(James Foong, Abdull Hamid Embong & Vincent Ng JJCA) [2008] 3 CLJ
273 [CA]
Judgment - Default judgment - Setting aside, application for - Merits of case - Accord
and satisfaction
Mirra Sdn Bhd v. The Ayer Molek Rubber Company Bhd
(James Foong, Abdull Hamid Embong & Vincent Ng JJCA) [2008] 3 CLJ
273 [CA]
Judgment - Default judgment - Setting aside, application for - Merits of case -
Limitation - Time-bar - Limitation Act 1953, s. 26(2)
Mirra Sdn Bhd v. The Ayer Molek Rubber Company Bhd
(James Foong, Abdull Hamid Embong & Vincent Ng JJCA) [2008] 3 CLJ
273 [CA]
Judgment - Default judgment - Setting aside, application for - Pre-judgment interest -
Assessment - Purposive interpretation to statute - Whether default judgment not an
irregular judgment - Civil Law Act 1956, s. 11
Mirra Sdn Bhd v. The Ayer Molek Rubber Company Bhd
(James Foong, Abdull Hamid Embong & Vincent Ng JJCA) [2008] 3 CLJ
273 [CA]
Judgment - Setting aside - Application made under O. 42 r. 13 Rules of the High Court
1980 - Whether not appropriate provision - Rules of the High Court 1980, O. 35 r. 1(2), 2
Lai Moo Nui & Ors v. Maheendran VKN Pillay
(Abdul Wahab Patail J) [2008] 3 CLJ
288 [HC]
Judgment - Setting aside - Grounds for - Failure to appear in court - Whether unable to
proceed
Lai Moo Nui & Ors v. Maheendran VKN Pillay
(Abdul Wahab Patail J) [2008] 3 CLJ
288 [HC]
Judgment - Setting aside - Grounds for - Withdrawal of solicitor - Failure to give
instructions to solicitor - Whether unable to proceed - Whether action correctly dismissed
Lai Moo Nui & Ors v. Maheendran VKN Pillay
(Abdul Wahab Patail J) [2008] 3 CLJ
288 [HC]
Judgment - Setting aside - Procedure - Whether proper and correct procedure was to file
appeal instead of application to set aside judgment
Lai Moo Nui & Ors v. Maheendran VKN Pillay
(Abdul Wahab Patail J) [2008] 3 CLJ
288 [HC]
Solicitor - Counsel appearing in court - Failure to proceed due to lack on instructions
from client - Whether reasonable
Lai Moo Nui & Ors v. Maheendran VKN Pillay
(Abdul Wahab Patail J) [2008] 3 CLJ
288 [HC]
COMPANY LAW
Directors - Fiduciary duties - Relationship of confidence and trust - Director
obligated by law to be loyal to principal - Whether director breached fiduciary duty -
Whether director misused trust information - Whether director has placed himself in a
position of conflict of interest - Director to obtain informed consent of company before
using trust information for own benefit
The Board Of Trustees Of The Sabah Foundation & Ors v. Datuk Syed Kechik Syed
Mohamed & Anor
(Ariffin Zakaria, Augustine Paul & Zulkefli Makinudin FCJJ) [2008] 3 CLJ
221 [FC]
Directors - Fiduciary duties - Relief - Disgorgement of profits made by director in
breach of fiduciary duty - Whether court may refuse relief for breach of fiduciary duty
where director's breach of fiduciary duties attributable to dominance of any third party -
Whether court may refuse relief for breach of fiduciary duty where it is totally
inequitable and contrary to conscience to grant such relief
The Board Of Trustees Of The Sabah Foundation & Ors v. Datuk Syed Kechik Syed
Mohamed & Anor
(Ariffin Zakaria, Augustine Paul & Zulkefli Makinudin FCJJ) [2008] 3 CLJ
221 [FC]
CONSTITUTIONAL LAW
Attorney General - Locus standi - Contempt proceedings - Whether Attorney General had
locus standi to represent judge - Doctrine of separation of powers - Administration of
justice
PP v. Dato' Seri Anwar Ibrahim; Re Counsel For Christopher Fernando's Objection To
Attorney-General's Application
(Hashim Yusoff J) [2008] 3 CLJ
296 [HC]
Courts - Contempt proceedings - Judge - Representation - Whether Attorney General had
locus standi to represent judge - Doctrine of separation of powers - Administration of
justice
PP v. Dato' Seri Anwar Ibrahim; Re Counsel For Christopher Fernando's Objection To
Attorney-General's Application
(Hashim Yusoff J) [2008] 3 CLJ
296 [HC]
Courts - Court of Appeal - Whether function of a Court of Appeal judge includes
delivery of a reasoned judgment - Validity of judgment of Court of Appeal where unanimous
judgment is pronounced in open court by three full serving judges but subsequently only
two judges who have since retired give their written grounds of judgment - Rule 24(1) of
the Rules of the Court of Appeal - No legal requirement for delivery of a reasoned
judgment
The Board Of Trustees Of The Sabah Foundation & Ors v. Datuk Syed Kechik Syed
Mohamed & Anor
(Ariffin Zakaria, Augustine Paul & Zulkefli Makinudin FCJJ) [2008] 3 CLJ
221 [FC]
CONTRACT
Construction - Term of payment - Deposit - Whether meaning clear and unambiguous -
Whether there was non-compliance
Hock Chnay Sdn Bhd v. Bong Kong Min
(Abdul Aziz Mohamad, Hashim Yusoff & Azmel Maamor JJCA) [2008] 3 CLJ
264 [CA]
Sale and purchase of land - Rescission - Breach - Payment of deposit - Construction of
term of contract - Whether there was non-compliance
Hock Chnay Sdn Bhd v. Bong Kong Min
(Abdul Aziz Mohamad, Hashim Yusoff & Azmel Maamor JJCA) [2008] 3 CLJ
264 [CA]
CRIMINAL LAW
Penal Code - Section 321 - Voluntarily causing hurt - Prima facie case - Medical report
- Service on accused - Whether sine qua non for successful prosecution - Duty of
prosecution - Discretion of court
PP v. David Chung Nyuk Vui
(Hamid Sultan Abu Backer JC) [2008] 3 CLJ
302 [HC]
CRIMINAL PROCEDURE
Prosecution - Duty of prosecuting officer - Diligent prosecution of case - Whether
failure to do so ought to result in discharge not amounting to acquittal
PP v. David Chung Nyuk Vui
(Hamid Sultan Abu Backer JC) [2008] 3 CLJ
302 [HC]
Prosecution - Prima facie case - Voluntarily causing hurt - Elements of offence -
Whether established - Whether accused's defence ought to have been called
PP v. David Chung Nyuk Vui
(Hamid Sultan Abu Backer JC) [2008] 3 CLJ
302 [HC]
Report or certificate - Medical report - Service on accused - Criminal Procedure Code,
s. 399
PP v. David Chung Nyuk Vui
(Hamid Sultan Abu Backer JC) [2008] 3 CLJ
302 [HC]
Report or certificate - Medical report - Whether sine qua non for successful
prosecution of accused on charge of assault
PP v. David Chung Nyuk Vui
(Hamid Sultan Abu Backer JC) [2008] 3 CLJ
302 [HC]
EVIDENCE
Fresh or further evidence - Admission of, on appeal - Procedure - Grounds for admission
- Whether conditions satisfied - Determining influence - Rules of the Court of Appeal
1994,
r. 7(3A) - Courts of Judicature Act 1964, s. 69
Hii King Hiong v. Sarawak Securities Sdn Bhd
(Zulkefli Makinudin, Raus Sharif & Abdull Hamid Embong JJCA) [2008] 3 CLJ
257 [CA]
LAND LAW
Sale of land - Rescission - Breach - Payment of deposit - Construction of term of
contract - Whether there was non-compliance
Hock Chnay Sdn Bhd v. Bong Kong Min
(Abdul Aziz Mohamad, Hashim Yusoff & Azmel Maamor JJCA) [2008] 3 CLJ
264 [CA]
LEGAL PROFESSION
Duty of care - Appearance in court - Failure to proceed due to lack on instructions
from client - Whether reasonable
Lai Moo Nui & Ors v. Maheendran VKN Pillay
(Abdul Wahab Patail J) [2008] 3 CLJ
288 [HC]
Practice of law - Appearance in court - Failure to proceed due to lack on instructions
from client - Whether reasonable
Lai Moo Nui & Ors v. Maheendran VKN Pillay
(Abdul Wahab Patail J) [2008] 3 CLJ
288 [HC]
CASE OF THE WEEK
ANVEST CORPORATION SDN BHD v.WONG SIEW CHOONG SDN BHD
COMPANY LAW: Winding up - Petition - Failure to pay taxed costs - Appellant seeking adjournment regarding taxed costs refused by High Court - Whether High Court’s exercise of discretion in rejecting purported settlement and refusal for adjournment correct - Failure to file affidavit opposing petition - Companies (Winding-up) Rules 1972, r. 30(1) - Whether respondent has every right not to accept purported tender - Whether purported tender made by applicant a valid tender
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