CLJ Bulletin, Issue 2012, Vol 12

                                                                                                                                                                                                           23 March 2012

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New This Week 1. Case Of The Week
2. Latest Cases
    a) Legal Network Series
    b) CLJ Volume 2 (Part 2) 2012
3. Articles
      a) Legal Network Series Articles
4. Legislation Highlights

CASE OF THE WEEK

UNGKU SULAIMAN ABD MAJID & ANOR v. PENGARAH TANAH DAN GALIAN JOHOR & ANOR

LAND LAW: Acquisition of land - Validity - State Government redeeming land from chettiar to whom land charged - Redemption executed upon order of Sultan - Whether redemption and acquisition valid and lawful - Whether beneficiaries entitled to apply for return of land or compensation from State Government - Redemption effected in 1895 - Law of limitation - Whether had set in - Land Enactment of the State of Johore 1950 (Johore Enactment No. 1), s. 54 - Applicability

LIMITATION: Accrual of cause of action - Acquisition of land - State Government redeeming land from chettiar to whom land charged - Redemption executed 115 years ago in 1895 - Law of limitation - Whether had set in - Whether beneficiaries barred from making any claim on property


2. Latest Cases

a) Legal Network Series

CITATION TITLE SUBJECT
[2009] 1 LNS 1400 [HC] Mines Exhibition Management Sdn Bhd v. Chua Lee Seng & Anor

CONTRACT: Breach - Claim for plaintiff's share of proceeds of exhibition jointly organized with 1st defendant - 2nd MOU stating that "Net Profits / (Losses) shall be shared/borne equally" by both plaintiff and 1st defendant "at 50/50 sharing basis" - Determination of how accounts for exhibition was to be resolved - Whether determined by reference to original terms of 2nd MOU or terms of 2nd MOU as amended - Whether accounts prepared by defendants fair and accurate depiction of revenue and operating accounts for exhibition - Whether plaintiff's claim ought to be allowed

CONTRACT: Undue influence - Coercion - Counterclaim for refund of monies paid to plaintiff - Whether payments made to plaintiff pursuant to amended terms of 2nd MOU was due to coercion or undue influence - Amendments from an equal profit and loss sharing formula to one that was royalty or commission-based - 1st defendant refusing to agree to amendments but later conceding due to threat of withdrawal of venue - Whether plaintiff's Group Managing Director in position to dominate will of 1st defendant and had used that position to secure amendments to 2nd MOU - Whether elements of coercion and undue influence proved - Whether 1st defendant's counterclaim ought to be allowed

EVIDENCE: Pleadings - Differences between pleaded case and evidence led - No plea or reference in Statement of Claim to meeting during which terms of 2nd MOU were amended - Plaintiff leading evidence and making submissions on accounts based on terms of 2nd MOU as amended at meeting - Whether plaintiff by its pleadings had conceded that the terms of 2nd MOU remained in their original state - Whether court compelled to disregard evidence and submissions relating to 2nd MOU as amended

[2009] 1 LNS 1422 [HC] Ngiao Jong Nian v. Lee Chan Foo & Anor

CIVIL PROCEDURE: Appeal - Appeal to High Court from Sessions Court - Findings of fact by trial judge - Finding that plaintiff fully informed of medical procedure and consented to it - 1st defendant's expert's testimony found to be more credible than plaintiff's - Whether plaintiff's claim against 1st and 2nd defendants correctly dismissed - Whether appellate interference warranted

TORT: Negligence - Medical negligence - Partial removal of plaintiff's gall bladder - Explanation of risks - Whether failure to warn plaintiff of risks - Whether proved that plaintiff would not have agreed to operation if he were warned of risk

TORT: Negligence - Medical negligence - Presence of bilous fluid in plaintiff's abdomen after procedure - Whether an accepted complication - Whether plaintiff suffered harm or injury as a result of 1st defendant's wrongful acts or omissions

[2011] 1 LNS 95 [HC] Eastern Petroleum Sdn Bhd v. BASF Aktiengesellschaft & Ors

ARBITRATION: Arbitration clause - Existence of - Clause 5.5 of the Supply and Loan Contract (SLC) - Debenture executed as security - Whether SLC and debenture two separate agreements - Whether clauses 24 and 29 of debenture together or separately, displaced or superseded clause 5.5 of SLC - Whether arbitration clause in SLC still operative and binding on plaintiff

CONTRACT: Construction of terms - Debenture - Clause 24 related to submission to jurisdiction of Malaysian courts and applicability of Malaysian laws - Whether limited to matters arising from debenture only - Clause 29 pertained to incorporation of SLC - Opening words of clause 29 'For the purposes of this Debenture' - Whether restricted to operations or enforcement of debenture itself

CIVIL PROCEDURE: Injunction - Application for - Injunction to restrain 2nd and 3rd defendants from carrying out their duties as receivers under debenture - Dependent only on whether there was a valid arbitration clause applicable - Unexplained delay by plaintiff - Whether plaintiff had any "serious issue" to be tried - Whether damages would not be adequate remedy to plaintiff - Whether plaintiff should be granted restraining orders applied for

[2011] 1 LNS 103 [HC] China Airlines v. Lim Lee Chang & Anor

ADMINISTRATIVE LAW: Judicial review - Certiorari - Application for - Finding that 1st respondent had proved constructive dismissal - Deductions made from 1st respondent's salary by applicant - Finding that this was a fundamental breach amounting to repudiation of contract entitling 1st respondent to claim constructive dismissal - Whether Industrial Court committed any error of law in arriving at its conclusion - Whether Industrial Court correctly considered relevant matters and not irrelevant matters - Whether Industrial Court acted in excess of jurisdiction

[2011] 1 LNS 145 [HC] Masa Nangkai & Ors v. Lembaga Pembangunan Dan Lindungan & Ors

NATIVE LAW AND CUSTOM: Land dispute - Customary rights over land - Plaintiffs claiming native customary rights over disputed land - Development of oil palm plantation project by defendants - Encroachment on land - Whether consents of affected landowners had been obtained - Whether plaintiffs entitled to their claim to land under native customary right - Whether destruction of such rights by defendants unlawful - Whether defendants should give vacant possession of land - Whether plaintiff entitled to restraining orders against defendants

CONTRACT: Illegality - Contravention of law - Whether Principal Deed and Joint Venture Agreement violated the Constitution - Whether plaintiffs deprived of source of their livelihood and lost rights to their property in breach of Articles 5 and 13 of Constitution - 3rd defendant had not been declared a native at time of Joint Venture Agreement - Whether Principal Deed and Joint Venture Agreement in violation of Constitution and s. 8(a) of the Land Code

^^

b. CLJ Volume 2 (Part 2) 2012

COURT

COURT OF APPEAL

Jitender Singh Pagar Singh & Ors v. Pentadbir Tanah Wilayah Persekutuan & Another Appeal
Zaleha Zahari, Kang Hwee Gee, Clement Skinner JJCA
(Administrative Law; Land Law - Judicial review - Delay of three years - Acquisition of land - Compensation) [2012] 2 CLJ 165 [CA]

Losali v. PP
Hasan Lah, Abdul Malik Ishak, Azhar Ma'ah JJCA
(Criminal Law - Dangerous Drugs Act 1952 - Sections 39B(2) and 12(3)) [2012] 2 CLJ 178 [CA]

Mentari Housing Development Sdn Bhd & Anor v. Abdul Ghapor Hussin & Ors
Low Hop Bing, Syed Ahmad Helmy, Mohamed Apandi Ali JJCA
(Local Government - Town planning - Planning permission) [2012] 2 CLJ 199 [CA]

NV Alliance Sdn Bhd v. Ketua Pengarah Hasil Dalam Negeri
Raus Sharif PCA, Hishamudin Mohd Yunus, Anantham Kasinather JJCA
(Revenue Law; Statutory Interpretation - Income tax - Deduction - Cash incentive payments - Ejusdem generis rule) [2012] 2 CLJ 211 [CA]

PP v. Nai Boon Wah
Hasan Lah, Abdul Wahab Patail, Clement Skinner JJCA
(Criminal Law; Criminal Procedure - Penal Code - Section 304(a) - Sentence - Concurrent or consecutive) [2012] 2 CLJ 222 [CA]

HIGH COURT

Binaan Sentosa Sdn Bhd v. Ng In Kun & Anor
See Mee Chun JC
(Tort - Statements in police report and newspaper article - Whether defamatory) [2012] 2 CLJ 232 [HC]

Inai Offshore & Marine Engineering Sdn Bhd v. Abdul Jalal Khalid
Mah Weng Kwai JC
(Company Law - Winding-up - Recovery of payments) [2012] 2 CLJ 239 [HC]

John Bosco Fernandez v. Thmil Selvi Ramasamy & Anor
Ahmad Nasfy Yasin JC
(Family Law - Divorce - Adultery) [2012] 2 CLJ 252 [HC]

SUBJECT INDEX

ADMINISTRATIVE LAW

Judicial review - Application for - Delay of three years - Whether contravened O. 53 r. 3(6) of the Rules of the High Court 1980 - Whether compliance with time frame was fundamental
Jitender Singh Pagar Singh & Ors v. Pentadbir Tanah Wilayah Persekutuan & Another Appeal
(Zaleha Zahari, Kang Hwee Gee, Clement Skinner JJCA) [2012] 2 CLJ 165 [CA]

COMPANY LAW

Winding-up - Recovery of payments - Liquidator claiming for return of payments made to directors of company - Whether payments void having been paid after commencement of winding-up proceedings - Whether directors having right to be paid in preference over other creditors - Whether payments validated by court - Companies Act 1965, s. 219(2), 223 - Rules of the High Court 1980, O. 88 - Companies (Winding-Up) Rules 1972, r. 66
Inai Offshore & Marine Engineering Sdn Bhd v. Abdul Jalal Khalid
(Mah Weng Kwai JC) [2012] 2 CLJ 239 [HC]

CRIMINAL LAW

Dangerous Drugs Act 1952 - Sections 39B(2) & 12(3) read together with s. 34 - Trafficking in 14,964.5 grams cannabis and possession of 7.94 grams heroin in furtherance of common intention - Appeal against death sentence and imprisonment of three years - Whether prosecution proved case beyond reasonable doubt - Whether defence a bare denial
Losali v. PP
(Hasan Lah, Abdul Malik Ishak, Azhar Ma'ah JJCA) [2012] 2 CLJ 178 [CA]

Penal Code - Section 304(a) - Sentence - Concurrent or consecutive - Facts and circumstances of each case - Whether a proper case to apply exception to one transaction rule and totality principle - Whether sentences to run consecutively
PP v. Nai Boon Wah
(Hasan Lah, Abdul Wahab Patail, Clement Skinner JJCA) [2012] 2 CLJ 222 [CA]

CRIMINAL PROCEDURE

Sentence - Concurrent or consecutive - Facts and circumstances of each case - Whether a proper case to apply exception to one transaction rule and totality principle - Whether sentences to run consecutively
PP v. Nai Boon Wah
(Hasan Lah, Abdul Wahab Patail, Clement Skinner JJCA) [2012] 2 CLJ 222 [CA]

FAMILY LAW

Divorce - Adultery - Decree nisi in default granted - Whether order proper - Whether adultery must be proved beyond reasonable doubt at trial - Whether wrong to award damages for adultery based on affidavits - Whether damages could be awarded against spouse involved in adultery - Whether decree nisi could be made absolute when application to rehear divorce petition pending - Divorce and Matrimonial Proceedings Rules 1980, rr. 44, 53(1) & (2) & 100 - Law Reform (Marriage and Divorce) Act 1976, ss. 58, 59, 61(2)
John Bosco Fernandez v. Thmil Selvi Ramasamy & Anor
(Ahmad Nasfy Yasin JC) [2012] 2 CLJ 252 [HC]

LAND LAW

Acquisition of land - Objection against amount of compensation awarded - Whether compensation considered in light of current law - Whether requirement that High Court judge must be guided by assessors infringed art. 13 of the Federal Constitution - Whether reasoning given was sound
Jitender Singh Pagar Singh & Ors v. Pentadbir Tanah Wilayah Persekutuan & Another Appeal
(Zaleha Zahari, Kang Hwee Gee, Clement Skinner JJCA) [2012] 2 CLJ 165 [CA]

LOCAL GOVERNMENT

Town planning - Application for planning permission - Validity of - Whether mandatory provisions for application complied with - Whether exemption of planning permission under s. 19(2)(g) of the Town and Country Planning Act 1976 granted
Mentari Housing Development Sdn Bhd & Anor v. Abdul Ghapor Hussin & Ors
(Low Hop Bing, Syed Ahmad Helmy, Mohamed Apandi Ali JJCA) [2012] 2 CLJ 199 [CA]

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)
NV Alliance Sdn Bhd v. Ketua Pengarah Hasil Dalam Negeri
(Raus Sharif PCA, Hishamudin Mohd Yunus, Anantham Kasinather JJCA) [2012] 2 CLJ 211 [CA]

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
NV Alliance Sdn Bhd v. Ketua Pengarah Hasil Dalam Negeri
(Raus Sharif PCA, Hishamudin Mohd Yunus, Anantham Kasinather JJCA) [2012] 2 CLJ 211 [CA]

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
NV Alliance Sdn Bhd v. Ketua Pengarah Hasil Dalam Negeri
(Raus Sharif PCA, Hishamudin Mohd Yunus, Anantham Kasinather JJCA) [2012] 2 CLJ 211 [CA]

TORT

Defamation - Defamatory words - Statements in police report and newspaper article - Whether defamatory - Complaint against plaintiff - Statements read in entirety - Context in which words used - Whether established - Soh Chun Seng v. CTOS-Emr Sdn Bhd
Binaan Sentosa Sdn Bhd v. Ng In Kun & Anor
(See Mee Chun JC) [2012] 2 CLJ 232 [HC]

^^


3. Articles

a) Legal Network Series Articles

1. Capital Punishment In Malaysia And Globally: "A Tool For Justice Or A Weapon Against Humanity" [Read excerpt]
By Guru Dhillon*, Dr Noor Mohammad**, Ng Yih Miin***

^^


4. Legislation Highlights

a) Principal Acts

NUMBER

TITLE

DATE COMING INTO FORCE

REPEALING

ACT 733 Kampong Bharu Development Corporation Act 2011 1 April 2012 [PU(B) 72/2012] - Nil -
ACT 738 Medical Device Authority Act 2012 15 March 2012 [PU(B) 73/2012] - Nil -
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 -

b) Amending Acts

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

c) PU(A)

NUMBER TITLE DATE OF PUBLICATION DATE COMING INTO FORCE

PRINCIPAL / AMENDING ACT NO

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 to 21 March 2012 ACT 235
PU(A) 074/2012 Dental (Amendment Of Second Schedule) Order 2012 8 March 2012 8 March 2012 ACT 51
PU(A) 075/2012 Customs (Values) (Palm Oil) (No 11) Order 2012 12 March 2012 8 March 2012 to 21 March 2012 ACT 235
PU(A) 076/2012 Income Tax (Deduction For Expenditure On Franchise Fee) Rules 2012 12 March 2012 Year Of Assessment 2012 ACT 53

d) PU(B)

NUMBER TITLE DATE OF PUBLICATION DATE COMING INTO FORCE

PRINCIPAL / AMENDING ACT NO

PU(B) 069/2012 Appointment Under Subsection 134(2) Of The Income Tax Act 1967 9 March 2012 See column (4) of the Schedule of PU(B) 069/2012 ACT 53
PU(B) 070/2012 Notification Under Section 8 Of The Holidays Act 1951 (Peninsular Malaysia) 13 March 2012 11 April 2012 ACT 369
PU(B) 071/2012 Notification Under Section 8 Of The Holidays Act 1951 (Federal Territory Of Labuan) 13 March 2012 11 April 2012 ACT 369
PU(B) 072/2012 Appointment Of Date Of Coming Into Operation Of The Kampong Bharu Development Corporation Act 2011 1 April 2012 1 April 2012 ACT 733
PU(B) 073/2012 Appointment Of Date Of Coming Into Operation Of The Medical Device Authority Act 2012 15 March 2012 15 March 2012 ACT 738

^^


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