Legal Network Series

[2012] 1 LNS 677	VOON KUET KIONG @ VOON KOK KIONG & ANOR v. MUHAMMAD MUSLIM MORSHIDI	CIVIL PROCEDURE: Appeal - Appeal against decision of sessions court - Appeal to High Court - Judge assessed liability at 40% on part of 1st appellant and 60% on respondent - Whether any reason to disturb finding of Sessions Court Judge that 1st appellant stopped suddenly at the traffic lights and 1st respondent contributed to the collision - Whether findings made with judicial appreciation of the evidence - Whether interference with percentage of apportionment warranted - Whether vehicle driven from behind by respondent bore a much greater duty to follow at a safe distance so as to avoid the collision - Whether apportionment of liability should be varied - Whether respondent was 80% liable for accident
[2012] 1 LNS 688	CHUNG CHON LEONG & ORS v. LOH TONG CHUNG & ORS & ANOTHER APPEAL	LAND LAW: Sale of land - Fraud alleged - Trust - Claim for fraud and existence of constructive trust - Chung Kian Boon signed purchase agreement with 1st defendant in Suit No. 22-231-2010-III - Chong Teck Shin, father of 3rd defendant was already registered owner of Lot 44 when Chung Kian Boon entered into agreement with 1st defendant - Whether Chong Teck Shin became registered owner of Lot 44 subject to equitable interest of Chung Kian Boon - Whether Chong Teck Shin held any part of Lot 44 in trust for Chung Kian Boon or a constructive trust was created in favour of Chung Kian Boon - Whether any privity of contract between Chong Teck Shin and Chung Kian Boon - Chong Teck Shin transferred land to his son, 3rd defendant - Whether 3rd defendant became registered owner subject to equity of Chung Kian Boon - Whether present registered owner became registered owner subject to equity of Chung Kian Boon - Whether existence of constructive trust was a matter between developer and late Chong Teck Shin, or his son, 3rd defendant - Whether 1st to 3rd plaintiffs proved fraud against 3rd defendant - Whether Chong Teck Shin colluded with 1st defendant to induce Chung Kian Boon to enter into Sale and Purchase Agreement with intention of deceiving him or his heirs of his future right to subdivided lot - Whether only recourse for plaintiffs was for damages against 1st defendant himself for not taking steps to procure transfer of property to the estate of Chung Kian Boon LAND LAW: Sale of land - Transfer - Plaintiff in Suit 22-134-2010-111, bought land from defendant's father, Chong Teck Shin - Whether plaintiff's interest in Sale and Purchase Agreement survived death of Chong Teck Shin - Whether when defendant became owner of Lot 576, he was bound to honour the agreement that his father had signed with plaintiff - Whether there was breach on part of defendant as successor in title of his father to observe clause 5 of sale and purchase agreement - Whether a constructive trust existed against defendant for benefit of plaintiff
[2012] 1 LNS 703	RHB BANK BERHAD v. Y & G CORPORATION BERHAD	CIVIL PROCEDURE: Striking out - Defence and counterclaim - Application for - Defendant signed guarantee - Whether defences raised obviously unsustainable or merited a full trial - Counterclaim by defendant that plaintiff deliberately tarnished defendant's good name, integrity and business reputation by filing present action - Whether any particulars given to support counterclaim - Whether a plain and obvious case for striking out COMPANY LAW: Indoor management rule - Whether Board of Directors had knowledge of the corporate guarantee given by defendant - Whether this was a matter of internal management which plaintiff was not obliged to inquire into - Even if previous management had been negligent in granting a guarantee, whether outsiders such as plaintiff who was lending bank could be deprived of their rights - Whether proper for defendant to use improper acts of previous management as an excuse to avoid liability CIVIL PROCEDURE: Res judicata - Abuse of process of court - Whether present action an abuse of process as earlier action already commenced against borrower - Whether plaintiff as a lender had an option to proceed against both borrower and guarantor simultaneously or otherwise - Whether plaintiff's case was defective because guarantor was not joined as a defendant in earlier action - Whether plaintiff's claim caught by doctrine of res judicata
[2013] 1 LNS 569	SINGHAM SULAIMAN SDN BHD v. MEGA PALM SDN BHD	AGENCY: Agent - Estate agent - Plaintiff sued defendant for estate agency fee or commission - Whether there was a valid and enforceable contractual or agency relationship between them - Whether 2% professional agency consultancy fees could apply to the sales of the 2 parcels of land - Whether there was a valid appointment of plaintiff as the estate agent in respect of the sale of the 2 parcels of land to Mayland's 2 subsidiaries - Whether plaintiff was the effective cause of the sale of 2 parcels of land to Mayland's and/or its 2 subsidiaries - Whether agent's right to commission arose out of mere fact that agent had introduced a purchaser - Whether plaintiff must go further and show that introduction brought about sale of the property EVIDENCE: Adverse inference - Failure to call witness - Evidence Act 1950, s. 114(g) - Whether the court should draw an adverse inference against plaintiff for not calling Tan Sri David Chiu and Teoh Eng Poh as witnesses - Whether had Tan Sri David Chiu and Teoh Eng Poh been called, their evidence would be unfavourable to plaintiff in that they would confirm defendant's position
[2013] 1 LNS 633	ABDUL RASHAD HJ ADAM v. YONG TSEN FOOK & ORS	CIVIL PROCEDURE: Amendment - New cause of action - Application to amend Reply and Defence to Counterclaim - Pleadings closed and case set down for trial - Whether amendment would greatly prejudice defendants - Whether ample opportunity given to all parties to settle their pleadings for trial - Whether events that occurred since the close of pleadings could still be adduced as part of plaintiff's evidence - Whether new cause of action could be introduced at this late stage - Whether issue of "holding over" very different from the pleaded case of defendants being "trespassers" - Consideration of the Yamaha Motor Ltd's case with the Australian High Court case of AON Risk Services Australia Ltd - Whether the two cases to be read together

CLJ 2014 Volume 2 (Part 5)

COURT

FEDERAL COURT

Malaysian Trade Union Congress & Ors v. Menteri Tenaga, Air Dan Komunikasi & Anor
Arifin Zakaria CJ, Zulkefli Makinudin CJ (Malaya), Hashim Yusoff, Suriyadi Halim Omar, Hasan Lah FCJJ
(Civil Procedure - Locus standi - Judicial review - Minister's refusal to disclose documents classified as "official secret") [2014] 2 CLJ 525 [FC]

COURT OF APPEAL

PP v. Mostafa Kamal Abadi
Abdul Malik Ishak, Azahar Mohamed, Balia Yusof Wahi JJCA
(Criminal Law; Criminal Procedure - Dangerous Drugs Act 1952 - Section 39B(1) - Trafficking) [2014] 2 CLJ 554 [CA]

HIGH COURT

Balakrishnan Subramaniam v. Penguasa Pusat Pemulihan Akhlak, Simpang Renggam, Johor Darul Takzim & Ors
Asmabi Mohamad JC
(Tort; Constitutional Law; Evidence - False imprisonment - Arrest by police - Constitutional rights - Personal liberty) [2014] 2 CLJ 563 [HC]

Chow Tat Ming & Ors v. Bounty Dynamics Sdn Bhd & Ors And Another Suit
SM Komathy Suppiah JC
(Civil Procedure - Contempt of court - Committal proceedings) [2014] 2 CLJ 596 [HC]

Datuk Seri Mohammad Nizar Jamaluddin lwn. Utusan Melayu (M) Bhd
Rosnaini Saub H
(Tort - Fitnah - Laporan berita dalam suratkhabar - Sama ada laporan berita berniat jahat) [2014] 2 CLJ 605 [HC]

Tan Sri Dato' Sri Panglima Hj Annuar Hj Musa v. Persatuan Bola Sepak Malaysia & Anor
Hadhariah Syed Ismail J
(Civil Procedure - Proceedings - Irregular - Whether tainted with irregularities) [2014] 2 CLJ 624 [HC]

SUBJECT INDEX

CIVIL PROCEDURE

Affidavits - Cross-examination of deponent to affidavit - Application for - Deponents to affidavit faced contempt proceedings - Whether leave to cross-examine allowed - Whether judge had discretion to allow cross-examination - Rules of Court 2012, O. 38 r. 2(2)
Chow Tat Ming & Ors v. Bounty Dynamics Sdn Bhd & Ors And Another Suit
(SM Komathy Suppiah JC) [2014] 2 CLJ 596 [HC]

Contempt of court - Committal proceedings - Affidavits affirmed by comtemnors - Application to cross-examine comtemnors on affidavits - Whether questions proposed had bearing on issue in contempt proceedings - Whether judge had discretion to allow cross-examination - Rules of Court 2012, O. 38 r. 2(2)
Chow Tat Ming & Ors v. Bounty Dynamics Sdn Bhd & Ors And Another Suit
(SM Komathy Suppiah JC) [2014] 2 CLJ 596 [HC]

Locus standi - Judicial review - Test in Government of Malaysia v. Lim Kit Siang - Whether applicable - Infringement of private right - Whether established - Action against Minister's refusal to disclose documents classified as "official secret" - Whether Minister's decision irrational - Whether applicant "adversely affected" by non-disclosure - Whether applicant has real and genuine interest in subject matter - Rules of the High Court 1980, O. 53 r. 2(4)
Malaysian Trade Union Congress & Ors v. Menteri Tenaga, Air Dan Komunikasi & Anor
(Arifin Zakaria CJ, Zulkefli Makinudin CJ (Malaya), Hashim Yusoff, Suriyadi Halim Omar, Hasan Lah FCJJ) [2014] 2 CLJ 525 [FC]

Proceedings - Irregular - Charges for statement made in press conference - Statements containing grievances and criticisms made without consent of Football Association of Malaysia ('FAM') - Contravention of article 88 of FAM Statute - Hearing held before Disciplinary Committee - Plaintiff not represented - Application to nullify entire proceedings before Disciplinary Committee - Whether proceeding flawed, invalid and void - Whether tainted with irregularities - Whether there was fundamental breach of natural justice
Tan Sri Dato' Sri Panglima Hj Annuar Hj Musa v. Persatuan Bola Sepak Malaysia & Anor
(Hadhariah Syed Ismail J) [2014] 2 CLJ 624 [HC]

CONSTITUTIONAL LAW

Constitutional rights - Personal liberty - Whether plaintiff's detention unlawful and unconstitutional - Federal Constitution, art. 5 - Emergency (Public Order and Prevention of Crime) Ordinance 1969, ss. 3 & 4
Balakrishnan Subramaniam v. Penguasa Pusat Pemulihan Akhlak, Simpang Renggam, Johor Darul Takzim & Ors
(Asmabi Mohamad JC) [2014] 2 CLJ 563 [HC]

CRIMINAL LAW

Dangerous Drugs Act 1952 - Section 39B(1) - Trafficking - Accused charged for trafficking 371 grams of methamphetamine - Incriminating drugs found in right shoe - Inconsistency of statements regarding shoe brand and colour - Whether shoes produced in court were same as those seized - Whether there was break in chain of evidence - Whether defence cast reasonable doubt on prosecution's case
PP v. Mostafa Kamal Abadi
(Abdul Malik Ishak, Azahar Mohamed, Balia Yusof Wahi JJCA) [2014] 2 CLJ 554 [CA]

CRIMINAL PROCEDURE

Appeal - Appeal against acquittal and discharge - Accused charged for trafficking in dangerous drugs - Incriminating drugs found in right shoe - Whether shoes produced in court were same as those seized - Inconsistency of brand and colour shoes in witnesses' statements - Inference by trial judge that there were two pairs of shoes - Whether trial judge correct in drawing inference
PP v. Mostafa Kamal Abadi
(Abdul Malik Ishak, Azahar Mohamed, Balia Yusof Wahi JJCA) [2014] 2 CLJ 554 [CA]

EVIDENCE

Burden of proof - Balance of probabilities - Whether plaintiff had proved on balance of probabilities that his arrest and detention was unlawful - Whether plaintiff proved that he was not released from custody despite habeas corpus order - Whether plaintiff had discharged burden of proving mala fide by defendants - Emergency (Public Order and Prevention of Crime) Ordinance 1969, s. 3
Balakrishnan Subramaniam v. Penguasa Pusat Pemulihan Akhlak, Simpang Renggam, Johor Darul Takzim & Ors
(Asmabi Mohamad JC) [2014] 2 CLJ 563 [HC]

Witnesses - Failure to call material witness - Whether adverse inference ought to be drawn against plaintiff - Evidence Act 1950, s. 114(g)
Balakrishnan Subramaniam v. Penguasa Pusat Pemulihan Akhlak, Simpang Renggam, Johor Darul Takzim & Ors
(Asmabi Mohamad JC) [2014] 2 CLJ 563 [HC]

TORT

False imprisonment - Arrest by police - Two detention orders issued against plaintiff by third defendant - Whether arrest and detention lawful - Damages - Whether common law claim of damages for false imprisonment was ousted by ss. 7C and 7D Emergency (Public Order and Prevention of Crime) Ordinance 1969 - Whether periods of detention legal and for valid reasons - Whether habeas corpus order would grant plaintiff automatic right to damages - Whether police could use same grounds of plaintiff's prior arrest or detention to effect subsequent arrest - Whether plaintiff entitled to damages - Emergency (Public Order and Prevention of Crime) Ordinance 1969, ss. 3 & 4
Balakrishnan Subramaniam v. Penguasa Pusat Pemulihan Akhlak, Simpang Renggam, Johor Darul Takzim & Ors
(Asmabi Mohamad JC) [2014] 2 CLJ 563 [HC]

INDEKS PERKARA

TORT

Fitnah - Laporan berita dalam suratkhabar - Sama ada memfitnahkan plaintif - Pembelaan - Justifikasi, ulasan saksama, perlindungan bersyarat dan kewartawanan - Sama ada gagal dibuktikan - Sama ada defendan gagal mengamalkan "responsible journalism" - Sama ada laporan berita berniat jahat
Datuk Seri Mohammad Nizar Jamaluddin lwn. Utusan Melayu (M) Bhd
(Rosnaini Saub H) [2014] 2 CLJ 605 [HC]

Fitnah - Gantirugi - Taksiran gantirugi - Prinsip-prinsip digunapakai - Gantirugi am dan teladan - Jumlah berpatutan dan munasabah
Datuk Seri Mohammad Nizar Jamaluddin lwn. Utusan Melayu (M) Bhd
(Rosnaini Saub H) [2014] 2 CLJ 605 [HC]

CLJ 2014 Volume 2 (Part 6)

COURT

FEDERAL COURT

Lew Wai Loon v. PP
Arifin Zakaria CJ, Richard Malanjum CJ (Sabah & Sarawak), Abdull Hamid Embong, Ahmad Maarop, Hasan Lah FCJJ
(Evidence - Exhibits - Discrepancies in gross weight - Whether break in chain of evidence) [2014] 2 CLJ 649 [FC]

COURT OF APPEAL

PP v. Yazid Sufaat & Ors
Abu Samah Nordin, Azahar Mohamed, Mohd Zawawi Salleh JJCA
(Criminal Law - Penal Code - Section 130G(a) - Security offences - Security Offences (Special Measures) Act 2012) [2014] 2 CLJ 670 [CA]

HIGH COURT

Dato' Mohamad Bustaman Abdullah v. Malay Mail Sdn Bhd & Anor
Yeoh Wee Siam J
(Tort - Defamation - Libel - Publication of article on trial proceedings - Whether article malicious) [2014] 2 CLJ 682 [HC]

Goh Mary v. Punithavathi Ponniah & Ors
SM Komathy Suppiah JC
(Civil Procedure - Costs - Getting up fee - Application to review amount allowed by Registrar) [2014] 2 CLJ 705 [HC]

Koperasi Ladang Pekebun-Pekebun Kecil Malaysia Bhd v. Pihak Berkuasa Kemajuan Pekebun-Pekebun Kecil Perusahaan Getah
Asmabi Mohamad JC
(Land Law; Contract; Limitation - Ownership - Whether indefeasibility of title could be challenged) [2014] 2 CLJ 711 [HC]

Lau Bak Siang & Ors v. Pentadbir Tanah Negeri Perlis
Mohd Zaki Wahab JC
(Land Law - Acquisition of land - Acquisition for public purpose - Compensation - Whether insufficient) [2014] 2 CLJ 743 [HC]

Mohamad Karim Bujang v. PP
Rhodzariah Bujang J
(Criminal Procedure - Non-compliance of s. 51A Criminal Procedure Code - Whether vitiated trial) [2014] 2 CLJ 755 [HC]

Samsuri Baharuddin & Ors v. Borneo Samudera Sdn Bhd
Ravinthran Paramaguru J
(Arbitration; Land Law - Question of law - Whether legal recognition provided to draft native title - Native title - Prohibition in dealing) [2014] 2 CLJ 762 [HC]

SUBJECT INDEX

ARBITRATION

Award - Question of law - Reference under s. 42 Arbitration Act 2005 - Whether arose out of award by arbitrator - Questions of law never raised by parties when tribunal made decision - Whether court could determine questions of law
Samsuri Baharuddin & Ors v. Borneo Samudera Sdn Bhd
(Ravinthran Paramaguru J) [2014] 2 CLJ 762 [HC]

CIVIL PROCEDURE

Appeal - Appeal against conviction and sentence - Appellant convicted for trafficking in Indonesian nationals - Indonesians convicted for illegal entry by Sessions Court - Grounds of appeal - Non-compliance of s. 51A Criminal Procedure Code - Whether vitiated trial - Whether warrants of commitment and notes of proceedings from Sessions Court trial against Indonesians submitted in present proceedings - Failure to honour promise to charge for lesser offence - Whether conviction and sentence safe - Anti-Trafficking in Person and Anti-Smuggling of Migrants Act 2007, s. 26J - Criminal Procedure Code, s. 51A
Mohamad Karim Bujang v. PP
(Rhodzariah Bujang J) [2014] 2 CLJ 755 [HC]

Costs - Getting up fee - Application to review amount allowed by Registrar - Getting up fee awarded in respect of interlocutory application made to set aside consent judgment - Whether award of RM40,000 manifestly excessive - Whether getting up fees should not be exorbitant where application involved settled principles - Hong Leong Bank Bhd v. Lee Khai Sin - Rules of the High Court 1980, O. 59 r. 36(1)
Goh Mary v. Punithavathi Ponniah & Ors
(SM Komathy Suppiah JC) [2014] 2 CLJ 705 [HC]

CONTRACT

Formation - Oral contract - Whether there was valuable consideration - Whether parties agreed on certain terms - Whether essential elements to constitute valid contract present
Koperasi Ladang Pekebun-Pekebun Kecil Malaysia Bhd v. Pihak Berkuasa Kemajuan Pekebun-Pekebun Kecil Perusahaan Getah
(Asmabi Mohamad JC) [2014] 2 CLJ 711 [HC]

CRIMINAL LAW

Penal Code - Section 130G(a) - Security offences - Promoting act of terrorism intended as a threat to members of public in Syria - Act of terrorism planned within Malaysia with intention to execute it outside Malaysia - Security Offences (Special Measures) Act 2012 (SOSMA), ss. 2 & 4 - Whether action or threat committed within Malaysia - Penal Code, s. 4 - Whether includes offence committed outside Malaysia - Whether procedure in SOSMA applies to trial of any person charged with committing any security offence under Chapter VIA Penal Code - Whether invoking provisions in SOSMA amounts to an abuse of process of court
PP v. Yazid Sufaat & Ors
(Abu Samah Nordin, Azahar Mohamed, Mohd Zawawi Salleh JJCA) [2014] 2 CLJ 670 [CA]

Security Offences (Special Measures) Act 2012 - Section 4 - Security offences - Offences under s. 130G(a) Penal Code - Whether SOSMA enacted to deal with action or threat within Malaysia - Whether procedure in SOSMA applies to trial of any person charged with committing any security offence under Chapter VIA Penal Code - Whether invoking provisions in SOSMA amounts to an abuse of process of court
PP v. Yazid Sufaat & Ors
(Abu Samah Nordin, Azahar Mohamed, Mohd Zawawi Salleh JJCA) [2014] 2 CLJ 670 [CA]

EVIDENCE

Exhibits - Identity of exhibits - Drug exhibit - Discrepancies in gross weight - Whether sufficient explanation given for variations in weights - Whether scientific evidence necessary - Whether discrepancy in weight ipso facto cast doubt in identity of exhibit - Whether break in chain of evidence
Lew Wai Loon v. PP
(Arifin Zakaria CJ, Richard Malanjum CJ (Sabah & Sarawak), Abdull Hamid Embong, Ahmad Maarop, Hasan Lah FCJJ) [2014] 2 CLJ 649 [FC]

TORT

Defamation - Libel - Publication of article on trial proceedings - Imputations that plaintiff as advocate and solicitor was impolite and/or non-courteous - Allegation that plaintiff's conduct in court caused judge to become angry and/or upset so as to cause judge to suddenly leave and/or walk out of court room - Whether words or statements published in article defamatory of plaintiff - Whether article malicious - Whether defences of justification, fair comment and qualified privilege available to defendants - Whether defendants relieved from liability - Defamation Act 1957, s. 8
Dato' Mohamad Bustaman Abdullah v. Malay Mail Sdn Bhd & Anor
(Yeoh Wee Siam J) [2014] 2 CLJ 682 [HC]

LAND LAW

Acquisition of land - Acquisition for public purpose - Compensation - Objection against amount awarded - Valuer's report - Whether valuer visited land personally - Whether report based on third party's evidence or opinion - Whether valuation report must include third party's evidence or opinion in writing - Whether valuer could rely on verbal information - Whether valuation report contained hearsay evidence - Whether valuation report raised prima facie evidence that amount of compensation insufficient - Land Acquisition Act 1960, ss. 12, 37, 38 & 45
Lau Bak Siang & Ors v. Pentadbir Tanah Negeri Perlis
(Mohd Zaki Wahab JC) [2014] 2 CLJ 743 [HC]

Ownership - Claim for - Subject lands registered in defendant's name - Whether indefeasibility of title could be challenged - Whether defendant held property on trust for plaintiff - Whether existence of trust proven - National Land Code, s. 340(2)(a), (b) or (c)
Koperasi Ladang Pekebun-Pekebun Kecil Malaysia Bhd v. Pihak Berkuasa Kemajuan Pekebun-Pekebun Kecil Perusahaan Getah
(Asmabi Mohamad JC) [2014] 2 CLJ 711 [HC]

Ownership - Dispute - Native title - Prohibition in dealing - Non-native prohibited from dealing with land held under native title - Exemption - Whether Minister empowered to grant exemption - Whether exemption sufficiently communicated - Whether dealings legal - Land Ordinance (Sabah Cap 68), ss. 17(1) & 64(1)
Samsuri Baharuddin & Ors v. Borneo Samudera Sdn Bhd
(Ravinthran Paramaguru J) [2014] 2 CLJ 762 [HC]

Ownership - Title to land - Draft native title - Whether has status of native title - Whether legal recognition provided to draft native title - Land Ordinance (Sabah Cap 68), ss. 4 & 88
Samsuri Baharuddin & Ors v. Borneo Samudera Sdn Bhd
(Ravinthran Paramaguru J) [2014] 2 CLJ 762 [HC]

LIMITATION

Accrual of cause of action - Claim for recovery of land - Whether plaintiff's action time barred
Koperasi Ladang Pekebun-Pekebun Kecil Malaysia Bhd v. Pihak Berkuasa Kemajuan Pekebun-Pekebun Kecil Perusahaan Getah
(Asmabi Mohamad JC) [2014] 2 CLJ 711 [HC]