CLJ Bulletin, Issue 2008, Vol 13
30 May 2008
CLJ Law MALAYSIA
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| New This Week - | 1. CLJ May (Part 4) 2008 |
| 2. CLJ Supp May (Part 2) 2008 |
COURT
COURT OF APPEAL
Anvest Corporation Sdn Bhd v. Wong Siew Choong Sdn Bhd
(Winding up - Petition - Failure to pay taxed costs) [2008] 3 CLJ
317
Dato' Dr Hj Mohamed Haniffa Hj Abdullah & Ors v. Koperasi Doktor Malaysia Bhd And
Ors & Another Appeal
(Parties - Intervention - Addition as a party) [2008] 3 CLJ
323
Ngiu-Kee Corporation (M) Bhd & Anor v. Pan-Pacific Construction Holdings Sdn Bhd
(Member's rights - Oppression - Minority protection) [2008] 3 CLJ
335
Tunku Dato Seri Shahabudin & Ors v. Lee Tak Suan & Anor
(Societies - Suits - Derivative action) [2008] 3 CLJ
407
Wong Ho Enterprise Sdn Bhd & Ors v. Tiong Hoo Teck
(Mareva injunction - Setting aside, application for) [2008] 3 CLJ
418
HIGH COURT
Government Of Malaysia v. Margaret Au Nyat Fah
(Action - Income tax - Claim for income tax due and owing) [2008] 3 CLJ
424
SUBJECT INDEX
CIVIL PROCEDURE
Action - Income tax - Claim for income tax due and owing - Whether facts of case
warranted a stay of the judgment - Whether stay should be granted
Government Of Malaysia v. Margaret Au Nyat Fah
(Hamid Sultan Abu Backer JC) [2008] 3 CLJ
424 [HC]
Injunction - Mareva injunction - Setting aside, application for - Principles - Grounds
of good arguable case and real risk of dissipation by first defendant of its assets -
Whether proved - Whether requirements for a Mareva injunction satisfied - Whether trial
judge committed an error of law and misconceived facts before him
Wong Ho Enterprise Sdn Bhd & Ors v. Tiong Hoo Teck
(James Foong, Raus Sharif & Abdull Hamid Embong JJCA) [2008] 3 CLJ
418 [CA]
Parties - Intervention - Addition as a party - Whether case for intervention made out -
Separate legal personality - Privity of contract - Propriety of pleading - Rules of the
High Court 1980, O. 15 r. 6(2)(b)(ii)
Dato' Dr Hj Mohamed Haniffa Hj Abdullah & Ors v. Koperasi Doktor Malaysia Bhd And
Ors & Another Appeal
(Gopal Sri Ram, Abdull Hamid Embong & Heliliah Mohd Yusof JJCA) [2008] 3 CLJ
323 [CA]
COMPANY LAW
Member's rights - Oppression - Minority protection - Action under s. 181 of Companies
Act 1965 - Conduct that would justify judicial remedy under s. 181 - Question whether
there is oppression must be determined according to facts of each case - Petitioner must
show that company's affairs are being conducted in an oppressive manner - Nothing to show
that acts complained of were designed to injure petitioner's rights as a member -
Petitioner raising issue of oppression with intention of wresting control of company -
Oppression must be in form of dishonesty
Ngiu-Kee Corporation (M) Bhd & Anor v. Pan-Pacific Construction Holdings Sdn Bhd
(Mokhtar Sidin, Mohd Ghazali Yusoff & Tengku Baharudin Shah JJCA) [2008] 3 CLJ
335 [CA]
Member's rights - Oppression - Minority protection - Remedies available under s. 181 of
Companies Act 1965 - Minority shareholders who should sell their shares to majority
shareholders when there has been oppression - Whether unjust to order shareholder holding
70% of paid-up capital to sell their majority shareholding to a minority shareholder
Ngiu-Kee Corporation (M) Bhd & Anor v. Pan-Pacific Construction Holdings Sdn Bhd
(Mokhtar Sidin, Mohd Ghazali Yusoff & Tengku Baharudin Shah JJCA) [2008] 3 CLJ
335 [CA]
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
Anvest Corporation Sdn Bhd v. Wong Siew Choong Sdn Bhd
(Gopal Sri Ram, Abdull Hamid Embong & Zainun Ali JJCA) [2008] 3 CLJ
317 [CA]
LIMITATION
Action - Income tax - Claim for income tax due and owing - Plea of limitation - Whether
applicable - Sarawak Limitation Ordinance, s. 33
Government Of Malaysia v. Margaret Au Nyat Fah
(Hamid Sultan Abu Backer JC) [2008] 3 CLJ
424 [HC]
UNINCORPORATED ASSOCIATIONS
Societies - Suits - Derivative action by ordinary members of club against committee
members - Locus standi - Whether action should be commenced by representative action
instead - Whether action ought to be struck out - Rules of the High Court 1980, O. 15 r.
12, O. 18 r. 19(1)(a), (b), (d)
Tunku Dato Seri Shahabudin & Ors v. Lee Tak Suan & Anor
(Mohd Ghazali Yusof, Zulkefli Makinudin & Low Hop Bing JJCA) [2008] 3 CLJ
407 [CA]
COURT
HIGH COURT
Intrakota Consolidated Bhd v. Mohamad Roslin Md Shah & Anor
(Labour law - Industrial Court - Award) [2008] 8 CLJ
81
Law Ding Hock v. Ng Yoon Lin
(Civil procedure - Striking out - Rules of the High Court 1980, O. 18 r. 19) [2008] 8 CLJ
94
Mohammad Tarmimi Tarmizi v. PP
(Criminal law - Penal Code - Section 436 - Mischief by fire or explosive substance)
[2008] 8
CLJ 101
PP v. Cocolin Industries Sdn Bhd
(Criminal law - Environmental Quality Act 1974 - Section 31(1) - Failure to comply with
directive issued) [2008] 8 CLJ
116
PP v. Mohd Romzan Ramli
(Sentence - Principles of sentencing - Retribution and denunciation) [2008] 8 CLJ
128
PP v. Tan Siew Hui
(Company law - Shares - Allotment of shares) [2008] 8 CLJ
142
TA First Credit Sdn Bhd v. Newacres Sdn Bhd
(Moneylenders - Charge - Security for loan - Order for sale) [2008] 8 CLJ
158
Tee Than Song & Sons Realty Sdn Bhd v. Watson Peters Paul Joseph Peters & Anor
(Company law - Sale of land - Parties - Agreement - Broker) [2008] 8 CLJ
166
SUBJECT INDEX
CIVIL PROCEDURE
Striking out - Rules of the High Court 1980, O. 18 r. 19 - Whether competent for
plaintiff to maintain case against defendant - Whether defendant held properties on
resulting trust for plaintiff's benefit - Whether money given by plaintiff to circumvent
bankruptcy status - Whether plaintiff successfully rebutted presumption properties given
to defendant for own use
Law Ding Hock v. Ng Yoon Lin
(Tengku Maimun J) [2008] 8 CLJ
94 [HC]
COMPANY LAW
Sale of land - Parties - Agreement - Broker - Broker's fee - Refusal of plaintiff
company to pay broking fee to broker as promised - Whether plaintiff company had given
instructions to first defendant's firm to pay broking fee to broker - Whether governing
director of plaintiff company has authority - Whether authorization signed by other
directors of plaintiff - Whether plaintiff's claim for balance sum from stakeholders
allowed - Evidence Act 1950, s. 73(1)
Tee Than Song & Sons Realty Sdn Bhd v. Watson Peters Paul Joseph Peters & Anor
(Abdul Wahab Patail J) [2008] 8 CLJ
166 [HC]
Shares - Allotment of shares - Information regarding Pink Form allocation required to
be submitted to Securities Commission - Whether employee shares allocation list submitted
to Securities Commission contained false information - Whether allocation of shares
materialized by crediting shares into CDS account - Whether allocation of shares false
PP v. Tan Siew Hui
(Mohamed Apandi Ali J) [2008] 8 CLJ
142 [HC]
CRIMINAL LAW
Environmental Quality Act 1974 - Section 31(1) - Failure to comply with directive
issued - Non-installation and operation of control equipment to reduce water pollution -
Whether proper notice was served on the respondents - Whether evidence showed respondent
received notice - Whether respondent had not complied with the terms stated in notice
PP v. Cocolin Industries Sdn Bhd
(Hamid Sultan Abu Backer JC) [2008] 8 CLJ
116 [HC]
Penal Code - Section 436 - Mischief by fire or explosive substance - Conviction and
sentence, appeal against - Admissibility of confession statement - Whether proved
voluntary - Evidence Act 1950, s. 24 - Failure to consider certain facts such as age of
appellant when confession was made - Whether fatal - Whether prejudicial effect of
confession statement outweighed its probative value - Whether confession statement ought
not to have been admissible - Whether conviction and sentence set aside
Mohammad Tarmimi Tarmizi v. PP
(Hamid Sultan Abu Backer JC) [2008] 8 CLJ
101 [HC]
CRIMINAL PROCEDURE
Sentence - Appeal against - Offence under s. 436 Penal Code - Whether confession
statement admissible - Whether prejudicial effect of confession statement outweighed its
probative value - Whether conviction and sentence set aside - Evidence Act 1950, s. 24
Mohammad Tarmimi Tarmizi v. PP
(Hamid Sultan Abu Backer JC) [2008] 8 CLJ
101 [HC]
Sentence - Appeal, against - Whether appellate court may alter a sentence - Whether
sentence passed by lower court was so manifestly excessive or inadequate - Whether lower
court erred in principle warranting intervention of appellate court
PP v. Mohd Romzan Ramli
(Mohd Zawawi Salleh JC) [2008] 8 CLJ
128 [HC]
Sentence - Mitigating factor - Plea of guilty - Crime of incest by stepfather against
stepdaughter - Whether offender entitled to discount
PP v. Mohd Romzan Ramli
(Mohd Zawawi Salleh JC) [2008] 8 CLJ
128 [HC]
Sentence - Principles of sentencing - Retribution and denunciation - Crime of incest by
stepfather against stepdaughter - Sentence to reflect Malaysian society's abhorrence to
such crimes - Retribution requires sentence to reflect moral blameworthiness of offender -
Sentence should communicate society's condemnation of offender's conduct - Offence more
heinous than ordinary due to stepfather/stepdaughter relationship - Whether sentence to be
enhanced
PP v. Mohd Romzan Ramli
(Mohd Zawawi Salleh JC) [2008] 8 CLJ
128 [HC]
EVIDENCE
Confession statement - Admissibility - Whether voluntary - Evidence Act 1950, s. 24 -
Failure to consider certain facts such as age of appellant when confession was made before
admitting confession - Whether fatal - Whether prejudicial effect of confession statement
outweighed its probative value - Whether confession statement ought not have been
admissible - Whether conviction and sentence set aside
Mohammad Tarmimi Tarmizi v. PP
(Hamid Sultan Abu Backer JC) [2008] 8 CLJ
101 [HC]
Parol evidence rule - Evidence Act 1950, ss. 91 and 92 - Whether application forms for
allotment of shares a contract subjected to purview of ss. 91 and 92 - Whether oral
evidence can be adduced to contradict, vary, add or subtract from terms of application
form - Whether ss. 91 and 92 applicable to criminal cases
PP v. Tan Siew Hui
(Mohamed Apandi Ali J) [2008] 8 CLJ
142 [HC]
LABOUR LAW
Industrial Court - Award - Findings - Whether charge defective and bad in law for want
of material particulars - Whether charge highly prejudicial to claimant's defence -
Whether Industrial court acted in excess of jurisdiction in refusing to consider merits of
employee's termination
Intrakota Consolidated Bhd v. Mohamad Roslin Md Shah & Anor
(Lau Bee Lan J) [2008] 8 CLJ
81 [HC]
Industrial Court - Industrial dispute - Charge - Whether employee to know with
certainty charge levelled against him - Whether charge to contain all material particulars
to allow employee to prepare and conduct his defence
Intrakota Consolidated Bhd v. Mohamad Roslin Md Shah & Anor
(Lau Bee Lan J) [2008] 8 CLJ
81 [HC]
LAND LAW
Charge - Order for sale - Application for - Breach of terms of charge - Whether there
were various irreconcilable inconsistencies in documents prepared by plaintiff - Whether
plaintiff bound by various provisions of Moneylenders Act 1951 - Whether defendant showed
‘cause to the contrary' within meaning of s. 256(3) of the National Land Code -
Moneylenders Act 1951, ss. 17, 19, 23
TA First Credit Sdn Bhd v. Newacres Sdn Bhd
(Tee Ah Sing J) [2008] 8 CLJ
158 [HC]
LAW OF TRUST
Resulting trust - Properties - Allegation of - Whether proved - Whether defendant held
properties on resulting trust for plaintiff's benefit - Whether competent for plaintiff to
maintain case against defendant - Whether plaintiff successfully rebutted presumption
properties given to defendant for own use
Law Ding Hock v. Ng Yoon Lin
(Tengku Maimun J) [2008] 8 CLJ
94 [HC]
MONEYLENDERS
Charge - Security for loan - Order for sale - Non compliance with provisions of
Moneylenders Act 1951 - Whether plaintiff bound by various provisions of Moneylenders Act
1951 - Whether defendant showed ‘cause to the contrary' within meaning of s. 256(3)
of the National Land Code - Moneylenders Act 1951, ss. 17, 19, 23
TA First Credit Sdn Bhd v. Newacres Sdn Bhd
(Tee Ah Sing J) [2008] 8 CLJ
158 [HC]
SECURITIES
Shares - Allocation of shares - Submission of information to Securities Commission
regarding Pink Form allocation pursuant to proposed listing of company at Bursa Saham
Kuala Lumpur - Whether false information regarding employee allocation of shares submitted
to Securities Commission - Section 32B(1)(c)(aa) Securities Commission Act 1993 -
Paragraph 10.19 of Securities Commissions Policies & Guidelines - Board of Directors
given discretion to determine allocation of shares - Whether essential ingredients of
offence under s. 32B(1)(c)(aa) proven
PP v. Tan Siew Hui
(Mohamed Apandi Ali J) [2008] 8 CLJ
142 [HC]
Shares - Central Depository - Whether depositors of Central Depository entitled to
number of securities stated in record of their CDS accounts
PP v. Tan Siew Hui
(Mohamed Apandi Ali J) [2008] 8 CLJ
142 [HC]
CASE OF THE WEEK
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