Bulletin_14

CLJ Bulletin, Issue 2009, Vol 14

10 July 2009

CLJ Law MALAYSIA

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New This Week -	1. CLJ July (Part 1) 2009
	2. CLJ Supp July (Part 1) 2009

1. CLJ July (Part 1) 2009

COURT

COURT OF APPEAL

Malaysia British Assurance Bhd v. Syarikat Pembenaan Karun Sdn Bhd
(Insurance - Construction of policy) [2009] 4 CLJ 1

Ong See Teong & Anor v. Tenaga Nasional Bhd
(Issuance of notice under s. 13 Electricity Supply Act 1990 permitting respondent to enter appellant's land in order to carry out upgrading works) [2009] 4 CLJ 21

Perwira Affin Bank Bhd v. Sardar Mohd Roshan Khan & Another Appeal
(Capacity of bankrupt - Whether suit maintainable by undischarged bankrupt) [2009] 4 CLJ 34

Sistem Penyuraian Trafik KL Barat Sdn Bhd v. Kenny Heights Development Sdn Bhd & Anor
(Application to intervene in land reference proceedings) [2009] 4 CLJ 57

HIGH COURT

PP v. Lee Jun Ho & Ors
(Murder and common intention - Acquittal and discharge without calling for defence) [2009] 4 CLJ 90

Thueringische Faser Aktiengesellschaft Schwarza v. Bank Of Commerce (M) Bhd
(Bank withholding repayment to plaintiff of monies in plaintiff's fixed deposit account) [2009] 4 CLJ 102

SUBJECT INDEX

ADMINISTRATIVE LAW

Exercise of administrative powers - Judicial review - Issuance of notice under s. 13 Electricity Supply Act 1990 permitting respondent to enter appellant's land in order to carry out upgrading works - Whether notice irrational and procedurally improper - Contravention of constitutional rights - Public interest - Pleadings - Error of law
Ong See Teong & Anor v. Tenaga Nasional Bhd
(Suriyadi Halim Omar, Zainun Ali & Ahmad Maarop JJCA) [2009] 4 CLJ 21 [CA]

Exercise of administrative powers - Local authority - Issuance of notice under s. 13 Electricity Supply Act 1990 permitting respondent to enter appellant's land in order to carry out upgrading works - Whether notice irrational and procedurally improper - Contravention of constitutional rights - Public interest - Pleadings - Error of law
Ong See Teong & Anor v. Tenaga Nasional Bhd
(Suriyadi Halim Omar, Zainun Ali & Ahmad Maarop JJCA) [2009] 4 CLJ 21 [CA]

Judicial review - Certiorari - Issuance of notice under s. 13 Electricity Supply Act 1990 permitting respondent to enter appellant's land in order to carry out upgrading works - Whether notice irrational and procedurally improper - Contravention of constitutional rights - Public interest - Pleadings - Error of law
Ong See Teong & Anor v. Tenaga Nasional Bhd
(Suriyadi Halim Omar, Zainun Ali & Ahmad Maarop JJCA) [2009] 4 CLJ 21 [CA]

BANKING

Banker and customer - Fixed deposit - Bank withholding repayment to plaintiff of monies in plaintiff's fixed deposit account - Whether there was agreement between plaintiff and bank that monies in account were security for alleged comfort agreement between plaintiff's holding company and bank
Thueringische Faser Aktiengesellschaft Schwarza v. Bank Of Commerce (M) Bhd
(T Selventhiranathan J) [2009] 4 CLJ 102 [HC]

Banker and customer - Fixed deposit - Conversion of monies in fixed deposit account to foreign currency with retrospective effect - Whether ought not to be allowed
Thueringische Faser Aktiengesellschaft Schwarza v. Bank Of Commerce (M) Bhd
(T Selventhiranathan J) [2009] 4 CLJ 102 [HC]

BANKRUPTCY

Adjudication order - Annulment - Whether annulment of adjudication order retrospective or prospective in effect - Chin Kon Nam & Anor v. Chai Yun Phin Development Sdn Bhd - Annulment order does not operate retrospectively - Order 42 r. 7(2) Rules of the High Court 1980 - Annulment order takes effect prospectively from date on which it is pronounced
Perwira Affin Bank Bhd v. Sardar Mohd Roshan Khan & Another Appeal
(Low Hop Bing, Sulong Matjeraie & Ahmad Maarop JJCA) [2009] 4 CLJ 34 [CA]

Capacity of bankrupt - Whether suit maintainable by undischarged bankrupt - Civil litigation actively prosecuted by undischarged bankrupt without obtaining previous sanction of Director General of Insolvency - Section 38(1)(a) Bankruptcy Act 1967 - Undischarged bankrupt incompetent to maintain an action - Steps taken by undischarged bankrupt in pursuing civil proceedings during bankruptcy period null and void - Judgment given for undischarged bankrupt in civil proceedings vitiated
Perwira Affin Bank Bhd v. Sardar Mohd Roshan Khan & Another Appeal
(Low Hop Bing, Sulong Matjeraie & Ahmad Maarop JJCA) [2009] 4 CLJ 34 [CA]

CIVIL PROCEDURE

Locus standi - Whether suit maintainable by undischarged bankrupt - Civil litigation actively prosecuted by undischarged bankrupt without obtaining previous sanction of Director General of Insolvency - Undischarged bankrupt incompetent to maintain an action - Steps taken by undischarged bankrupt in pursuing civil proceedings during bankruptcy period null and void - Judgment given for undischarged bankrupt in civil proceedings vitiated
Perwira Affin Bank Bhd v. Sardar Mohd Roshan Khan & Another Appeal
(Low Hop Bing, Sulong Matjeraie & Ahmad Maarop JJCA) [2009] 4 CLJ 34 [CA]

Parties - Intervention - Application to intervene in land reference proceedings - Rights of intervener - Whether intervener had direct interest in subject matter of action - Leave to intervene - Land acquired to build highway - SPRINT given concession to build highway - Whether SPRINT has direct legal interest in compensation payable to land owner under acquisition - Whether SPRINT a "person interested" within meaning of Land Acquisition Act 1960 - Rights of SPRINT to pay land owner for acquisition will be directly affected if SPRINT not allowed to intervene - Whether leave to intervene ought to be given - Rules of the High Court 1980, O. 15 r. 6(2)(b)
Sistem Penyuraian Trafik KL Barat Sdn Bhd v. Kenny Heights Development Sdn Bhd & Anor
(Low Hop Bing, Abdul Malik Ishak & KN Segara JJCA) [2009] 4 CLJ 57 [CA]

Pleadings - Issue not pleaded - Whether courts more concerned with justice of matter rather than being overly concerned with format or procedure - Whether submission on issue ought to be allowed
Ong See Teong & Anor v. Tenaga Nasional Bhd
(Suriyadi Halim Omar, Zainun Ali & Ahmad Maarop JJCA) [2009] 4 CLJ 21 [CA]

COMPANY LAW

Separate legal entity - Holding and subsidiary companies - Principles applicable
Thueringische Faser Aktiengesellschaft Schwarza v. Bank Of Commerce (M) Bhd
(T Selventhiranathan J) [2009] 4 CLJ 102 [HC]

CONSTITUTIONAL LAW

Right to property - Federal Constitution, art. 13 - Issuance of notice under s. 13 Electricity Supply Act 1990 permitting respondent to enter appellant's land in order to carry out upgrading works - Whether notice irrational and procedurally improper - Contravention of constitutional rights - Public interest - Pleadings - Error of law
Ong See Teong & Anor v. Tenaga Nasional Bhd
(Suriyadi Halim Omar, Zainun Ali & Ahmad Maarop JJCA) [2009] 4 CLJ 21 [CA]

CRIMINAL LAW

Penal Code - Sections 302 and 34 - Murder and common intention - Admissibility of statements tendered under s. 32(1) Evidence Act 1950 - Circumstantial evidence - Whether Prima facie case made out - Acquittal and discharge without calling for defence
PP v. Lee Jun Ho & Ors
(Apandi Ali J) [2009] 4 CLJ 90 [HC]

CRIMINAL PROCEDURE

Prosecution - Prima facie case - Murder and common intention - Circumstantial evidence - Acquittal and discharge without calling for defence
PP v. Lee Jun Ho & Ors
(Apandi Ali J) [2009] 4 CLJ 90 [HC]

EVIDENCE

Adverse inference - Document not produced - Illustration (g) to s. 114 Evidence Act 1950 - Whether mandatory for court to invoke adverse inference - Adverse inference for failing to produce privatization agreement in its entirety - Privatization agreement contained confidentiality clause prohibiting disclosure - Adverse inference to be invoked only in cases of withholding of evidence and not merely on account of failure to obtain evidence - Whether fit and proper case for adverse inference rule to be invoked
Sistem Penyuraian Trafik KL Barat Sdn Bhd v. Kenny Heights Development Sdn Bhd & Anor
(Low Hop Bing, Abdul Malik Ishak & KN Segara JJCA) [2009] 4 CLJ 57 [CA]

Circumstantial evidence - Securing conviction on - Murder and common intention - Prima facie case - Acquittal and discharge without calling for defence
PP v. Lee Jun Ho & Ors
(Apandi Ali J) [2009] 4 CLJ 90 [HC]

Hearsay - Exception - Statement of person who could not be called as witness - Admissibility - Requirements and prerequisites - Evidence Act 1950, s. 32(1)
PP v. Lee Jun Ho & Ors
(Apandi Ali J) [2009] 4 CLJ 90 [HC]

Statement - Statement of person who could not be called as witness - Admissibility - Requirements and prerequisites - Evidence Act 1950, s. 32(1)
PP v. Lee Jun Ho & Ors
(Apandi Ali J) [2009] 4 CLJ 90 [HC]

Witness - Statement of - Statement of person who could not be called as witness - Admissibility - Requirements and prerequisites - Evidence Act 1950, s. 32(1)
PP v. Lee Jun Ho & Ors
(Apandi Ali J) [2009] 4 CLJ 90 [HC]

INSURANCE

Claims - Proof of loss - Amount of loss claimed under policy of insurance to be proven on balance of probabilities - Claim under contractors all risk policy for cost of repairs to bridge damaged in floods - No evidence tendered to prove claim of RM765,812.20 claimed by insured - Award made by trial judge reduced to reflect actual cost of repair incurred
Malaysia British Assurance Bhd v. Syarikat Pembenaan Karun Sdn Bhd
(Raus Sharif, Abdull Hamid Embong & Ahmad Maarop JJCA) [2009] 4 CLJ 1 [CA]

Construction of policy - Rules of construction - Policy of insurance subject to same rules of construction as any other contract - Words used in policy to be understood in their plain and ordinary meaning - Object of parties to be borne in mind - Policy not to be construed so as to defeat object of parties or render it practically illusory - Insurer made aware of object of taking out policy - Insurer aware of the specific duration of cover required - Contractors All Risks Policy to cover road and bridge construction works - Insurer agreed to insure works for duration of project - Clause providing that liability expires for parts of works put into service - Bridge completed and put into service before completion of whole project - Bridge was damaged by flood - Whether insurer liable to compensate under policy - Contra preferentum rule - Construction favourable to insured adopted
Malaysia British Assurance Bhd v. Syarikat Pembenaan Karun Sdn Bhd
(Raus Sharif, Abdull Hamid Embong & Ahmad Maarop JJCA) [2009] 4 CLJ 1 [CA]

LAND LAW

Acquisition of land - Compensation - Award by Land Administrator - Objection to amount of compensation - Whether intervener prohibited from filing Form N pursuant to s. 38(1) Land Acquisition Act 1960 ('LAA') - Whether intervener was a person interested within meaning of s. 37(3) of the LAA - term "person interested" to be interpreted to promote purpose or object of Land Acquisition Act - Concessionaire in privatization agreement has a direct legal interest in amount of compensation payable in respect of lands acquired - Concessionaire is a person interested within meaning of s. 37(3) of the LAA
Sistem Penyuraian Trafik KL Barat Sdn Bhd v. Kenny Heights Development Sdn Bhd & Anor
(Low Hop Bing, Abdul Malik Ishak & KN Segara JJCA) [2009] 4 CLJ 57 [CA]

LOCAL GOVERNMENT

Electricity - Local authority - Issuance of notice under s. 13 Electricity Supply Act 1990 permitting respondent to enter appellant's land in order to carry out upgrading works - Whether notice irrational and procedurally improper - Contravention of constitutional rights - Public interest - Pleadings - Error of law
Ong See Teong & Anor v. Tenaga Nasional Bhd
(Suriyadi Halim Omar, Zainun Ali & Ahmad Maarop JJCA) [2009] 4 CLJ 21 [CA]

PUBLIC UTILITIES

WORDS & PHRASES

"who cannot be found" - Evidence Act 1950, s. 32(1) - Meaning of
PP v. Lee Jun Ho & Ors
(Apandi Ali J) [2009] 4 CLJ 90 [HC]

2. CLJ Supp July (Part 1) 2009

COURT

HIGH COURT

Ahmad Nazari Abd Majid v. PP
(Criminal law - Penal Code - Section 376 - Rape) [2009] 8 CLJ 417

Aziana Uda Bahari v. Gan Kong You
(Legal Profession - Professional discipline - Misconduct) [2009] 8 CLJ 438

Hong Leong Bank Bhd v. PP
(Criminal Procedure - Forfeiture - Dangerous Drugs) [2009] 8 CLJ 463

IKIP Education Sdn Bhd v. Low Seng
(Contract - Agreement - Lease of premise - Breach of terms) [2009] 8 CLJ 484

Kandandapani Muthucanam & Anor v. Manducekap Hi-Tec Sdn Bhd & Ors
(Civil Procedure - Stay of proceedings - Non payment of costs) [2009] 8 CLJ 498

Padiberas Nasional Bhd v. Formula Timur Sdn Bhd
(Company Law - Winding up - Just and equitable principle) [2009] 8 CLJ 508

Sabah Bank Bhd v. Liew Fui En & Anor
(Guarantee - Guarantor - Liability of) [2009] 8 CLJ 519

SUBJECT INDEX

CIVIL PROCEDURE

Stay of proceedings - Non payment of costs - Application for all proceedings to be stayed until costs and damages paid by plaintiffs to defendants 'forthwith' - Whether plaintiff proved to have pursued a vexatious cause of action - Jurisdiction to stay proceedings exercised with great care and caution - Whether application ought to be refused
Kandandapani Muthucanam & Anor v. Manducekap Hi-Tec Sdn Bhd & Ors
(Nallini Pathmanathan JC) [2009] 8 CLJ 498 [HC]

COMPANY LAW

Winding up - Just and equitable principle - Companies Act 1965, s. 218(1)(i) - Mutual trust and confidence between shareholders - Whether there had been an irretrievable breakdown - Failure to fulfill obligation in joint venture agreement - Whether just and equitable for company to be wound up
Padiberas Nasional Bhd v. Formula Timur Sdn Bhd
(Kang Hwee Gee J) [2009] 8 CLJ 508 [HC]

CONTRACT

Agreement - Lease of premise - Breach of terms - Damages - Claim for - Whether Sessions Court Judge erred in rewarding respondent arrears of three months' rent - Whether Sessions Court Judge had erred in rewarding respondent general damages - Whether claim for general damages substantiated with evidence
IKIP Education Sdn Bhd v. Low Seng
(Mohamed Apandi Ali J) [2009] 8 CLJ 484 [HC]

Guarantee - Guarantor - Liability of - Notice of demand - Whether valid - Whether demand letter a copy and not the actual notice - Whether defective - Whether notice of demand properly sent to respondents
Sabah Bank Bhd v. Liew Fui En & Anor
(Abdul Rahman Sebli JC) [2009] 8 CLJ 519 [HC]

Guarantee - Guarantor - Liability of - Satisfaction of charge - Whether contained qualification or reservation - Whether expressed to be for 'full and complete satisfaction of the charge on the land' - Whether there was an outstanding amount due after issuance of satisfaction of charge
Sabah Bank Bhd v. Liew Fui En & Anor
(Abdul Rahman Sebli JC) [2009] 8 CLJ 519 [HC]

CRIMINAL LAW

Penal Code - Section 376 - Rape - Appeal against conviction and sentence - Whether there was failure to lead evidence on corroboration - Whether identification parade prejudiced accused - Credibility of witnesses - Whether given maximum evaluation of - Whether defence of accused failed to cast reasonable doubt on his guilt
Ahmad Nazari Abd Majid v. PP
(Zamani A Rahim JC) [2009] 8 CLJ 417 [HC]

CRIMINAL PROCEDURE

Forfeiture - Dangerous Drugs - Property seized under Dangerous Drugs (Forfeiture of Property) Act 1988 - Whether vehicle 'illegal property' as defined in s. 2(2) of the Dangerous Drugs (Forfeiture of Property) Act 1988 - Whether there was evidence to show offence committed in connection with vehicle - Whether s. 35 Dangerous Drugs (Forfeiture of Property) Act 1988 applied to a claim under s. 32(1) of the same Act - Whether vehicle should be returned to the appellant under s. 32(3) Dangerous Drugs (Forfeiture of Property) Act 1988 - Whether appellant rightful owner of vehicle - Hire Purchase Act 1967, s. 2(2)
Hong Leong Bank Bhd v. PP
(Lim Yee Lan J) [2009] 8 CLJ 463 [HC]

Sentence - Adequacy of - Rape - Public interest - Consideration of mitigating and aggravating factors - Whether sentence given too lenient - Whether should be substituted with a more adequate sentence
Ahmad Nazari Abd Majid v. PP
(Zamani A Rahim JC) [2009] 8 CLJ 417 [HC]

LEGAL PROFESSION

Professional discipline - Misconduct - Penalty of RM500 imposed on applicant for alleged misconduct - Appeal to set aside order - Whether Disciplinary Board correct in taking action against applicant - Whether conduct of applicant proved to be unbefitting of an advocate and solicitor - Whether there were grounds to disagree with decision of Disciplinary Board - Legal Profession Act 1976, ss. 94(2), (3), 103 & 103(E)
Aziana Uda Bahari v. Gan Kong You
(Kamardin Hashim JC) [2009] 8 CLJ 438 [HC]

CASE OF THE WEEK

YAB DATO’ DR ZAMBRY ABD KADIR & ORS v. YB SIVAKUMAR VARATHARAJU NAIDU; ATTORNEY-GENERAL MALAYSIA (INTERVENER)

CONSTITUTIONAL LAW: Legislature - State Assembly - Decision of Speaker suspending and prohibiting applicants from attending State Legislative Assembly - True interpretation of art. XLIV Perak State Constitution read together with Standing Orders of Legislative Assembly and Legislative Assembly (Privileges) Enactment 1959 - Commencement of action - Justiciability of orders sought - Whether applicants’ suspension on account of alleged contempt null and void – Federal Constitution, art. 72(1)

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