Bulletin_14

CLJ Bulletin, Issue 2010, Vol 14

02 April 2010

CLJ Law MALAYSIA

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New This Week	1. Legal Network Series Articles
	2. CLJ Volume 3 (Part 6) 2010

1. Legal Network Series Articles

1. 'A Core Value' Judicial Conference of Australia, Annual Colloquium, 6 October 2006* ^{[Read
excerpt]}
By The Hon Murray Gleeson AC, Chief Justice of Australia

2. Child Focus In Court Procedure: A Local Perspective* ^{[Read
excerpt]}
By Helen Willetts, Suella Jarvis & Julie Samuels-Green, Marymead Child Family Centre

2. CLJ Volume 3 (Part 6) 2010

COURT

FEDERAL COURT

Abdul Aziz Mohd Alias v. Timbalan Ketua Polis Negara, Malaysia & Anor
(Dismissal of Chief Inspector on charges under Public Officers (Conduct and Discipline) Regulations 1993) [2010] 3 CLJ 643

Audrey Karen Barry v. Datuk Dr Yee Moh Chai
(Application for declaration that election null and void) [2010] 3 CLJ 660

COURT OF APPEAL

Chan Kwee Fong v. PP
(Murder - Defences) [2010] 3 CLJ 671

Yong Seng Yeow v. Indah Water Konsortium Sdn Bhd
(Subsidiary legislation - Ultra vires) [2010] 3 CLJ 711

HIGH COURT

Kiranjit Kaur Kalwant Singh v. Chandok Narinderpal Singh
(Divorce - Petition - Presentation to court before expiration of period of two years from date of marriage) [2010] 3 CLJ 724

PP v. Premakumar Balan & Anor
(Credibility - Impeachment) [2010] 3 CLJ 736

PP v. Vincent Jude Xavier
(Medical report - Admissibility of) [2010] 3 CLJ 754

Shamsul Anuar Mohd Tahir & Ors v. Mohsin Ahmad
(Whether application can be made by originating summons) [2010] 3 CLJ 769

SUBJECT INDEX

ADMINISTRATIVE LAW

Public servants - Dismissal of police officer - Whether letter to show cause must specifically mention possible penalty of dismissal or reduction in rank - Whether officer given reasonable opportunity of being heard and to state his case - Whether officer denied of his constitutional rights - Articles 5(1), 8(1) & 135(2) Federal Constitution - Regulation 28(1) Public Officers (Conduct and Discipline) Regulations 1993
Abdul Aziz Mohd Alias v. Timbalan Ketua Polis Negara, Malaysia & Anor
(Arifin Zakaria CJ (Malaya), Zulkefli Makinudin & Mohd Ghazali Yusoff FCJJ) [2010] 3 CLJ 643 [FC]

Subsidiary legislation - Ultra vires - Whether Minister had acted beyond his powers conferred by Sewerage Services Act 1993 - Whether Regulations made thereunder ultra vires - Whether Sewerage Services Act 1993 empowered Minister to make regulations for imposing sewerage charges - Whether power of Minister to prescribe sewerage charges implied the power to devise mechanism for computing such charges - Whether charges based on the annual value of premises unreasonable - Sewerage Services Act 1993 - Sewerage Services (Charges) Regulations 1994
Yong Seng Yeow v. Indah Water Konsortium Sdn Bhd
(Zaleha Zahari, Ahmad Maarop & Sulaiman Daud JJCA) [2010] 3 CLJ 711 [CA]

CIVIL PROCEDURE

Judgments and orders - Setting aside - Distribution order - Application by way of originating summons - Correct procedure, whether by way of appeal - Jurisdiction of court - Small Estates (Distribution) Act 1955, s. 29
Shamsul Anuar Mohd Tahir & Ors v. Mohsin Ahmad
(Sofian Abd Razak J) [2010] 3 CLJ 769 [HC]

Jurisdiction - High Court - Setting aside of distribution order - Correct procedure, whether by way of appeal - Appellate or original jurisdiction - Small Estates (Distribution) Act 1955, s. 29
Shamsul Anuar Mohd Tahir & Ors v. Mohsin Ahmad
(Sofian Abd Razak J) [2010] 3 CLJ 769 [HC]

Originating summons - Whether application can be made by originating summons - Setting aside of distribution order - Correct procedure, whether by way of appeal - Jurisdiction of court - Small Estates (Distribution) Act 1955, s. 29
Shamsul Anuar Mohd Tahir & Ors v. Mohsin Ahmad
(Sofian Abd Razak J) [2010] 3 CLJ 769 [HC]

Summary judgment - Leave to defend - Circumstances when defendant ought to be given leave to defend
Yong Seng Yeow v. Indah Water Konsortium Sdn Bhd
(Zaleha Zahari, Ahmad Maarop & Sulaiman Daud JJCA) [2010] 3 CLJ 711 [HC]

Summary judgment - Triable issues - Questions of law - Whether court may determine questions of law in a summary judgment application
Yong Seng Yeow v. Indah Water Konsortium Sdn Bhd
(Zaleha Zahari, Ahmad Maarop & Sulaiman Daud JJCA) [2010] 3 CLJ 711 [HC]

CRIMINAL LAW

Dangerous Drugs Act 1952 - Section 39B(1)(a) - Trafficking in cannabis - Admissibility of evidence of test fitting of clothes - Failure to administer caution before test fitting carried out - Evidence inadmissible
PP v. Premakumar Balan & Anor
(Zamani A Rahim JC) [2010] 3 CLJ 736 [HC]

Dangerous Drugs Act 1952 - Section 39B(1)(a) - Trafficking in cannabis - Drugs hidden in a bag in spare tyre compartment of car - Whether accused had knowledge of nature of dangerous drugs - Facts giving rise to several inferences - Inference most favourable to accused to be drawn - Element of possession not proven - Prima facie case of trafficking or possession not proven
PP v. Premakumar Balan & Anor
(Zamani A Rahim JC) [2010] 3 CLJ 736 [HC]

Dangerous Drugs Act 1952 - Section 39B(1)(a) - Trafficking in a dangerous drug - Common intention, whether established - Whether pre-arranged plan to traffick cannabis established
PP v. Premakumar Balan & Anor
(Zamani A Rahim JC) [2010] 3 CLJ 736 [HC]

Penal Code - Section 300(c) - Murder - Intention to cause such bodily injuries as would be sufficient in ordinary course of nature to cause death - Stab wound cutting artery - Defences - Intoxication - Sections 85(2)(b), 86(2) - Whether accused so drunk that he could not form intention to cause such bodily injuries - Grave and sudden provocation - Exception 1 - Sudden fight - Exception 4 - Whether accused took undue advantage of victim or acted in cruel or unusual manner
Chan Kwee Fong v. PP
(Low Hop Bing, Zainun Ali & Abdul Malik Ishak JJCA) [2010] 3 CLJ 671 [CA]

Penal Code - Sections 149 and 302 - Member of an unlawful assembly of persons with common intention of causing death - Murder - Material witnesses - Pathologist and chemist - Adjournment of trial - Admissibility of medical report - Credible evidence - Prima facie case - Criminal Procedure Code, ss. 259, 340
PP v. Vincent Jude Xavier
(Badariah Sahamid JC) [2010] 3 CLJ 754 [HC]

CRIMINAL PROCEDURE

Impeachment of credit of defence witness - Discrepancies between statement and oral testimony in court - Court not drawn to relevant part of former statement said to be inconsistent with witnesses' evidence in court - Proper procedure for impeachment
PP v. Premakumar Balan & Anor
(Zamani A Rahim JC) [2010] 3 CLJ 736 [HC]

Prosecution - Prosecution's case unsatisfactory - Absence of material witnesses - Prima facie case, whether proved
PP v. Vincent Jude Xavier
(Badariah Sahamid JC) [2010] 3 CLJ 754 [HC]

Trial - Adjournment - Procurement of pathologist as material witness - Failure by prosecution to properly prosecute its case - Criminal Procedure Code, s. 259 - Penal Code, ss. 149, 302
PP v. Vincent Jude Xavier
(Badariah Sahamid JC) [2010] 3 CLJ 754 [HC]

Witness - Material witnesses - Absence of - Serious gaps in prosecution's case - Prima facie case
PP v. Vincent Jude Xavier
(Badariah Sahamid JC) [2010] 3 CLJ 754 [HC]

ELECTION

Petition - Application for declaration that election null and void - Allegation of corrupt practice - Evidence, detailed analysis of - Credibility of witness - Findings of fact - Prima facie case - Whether petition rightly dismissed - Election Offences Act 1954, ss. 11(1)(c), 32(a), (b), (c)
Audrey Karen Barry v. Datuk Dr Yee Moh Chai
(Alauddin Mohd Sheriff PCA, Arifin Zakaria CJ (Malaya) & Nik Hashim FCJ) [2010] 3 CLJ 660 [FC]

EVIDENCE

Burden of proof - Election offences - Prima facie case - Whether established by petitioner
Audrey Karen Barry v. Datuk Dr Yee Moh Chai
(Alauddin Mohd Sheriff PCA, Arifin Zakaria CJ (Malaya) & Nik Hashim FCJ) [2010] 3 CLJ 660 [FC]

Credibility - Impeachment - Impeachment of witnesses' credit - Discrepancies between statement and oral testimony in court - Court not drawn to relevant part of former statement said to be inconsistent with witnesses' evidence in court - Proper procedure for impeachment
PP v. Premakumar Balan & Anor
(Zamani A Rahim JC) [2010] 3 CLJ 736 [HC]

Documentary evidence - Medical report - Admissibility of - Report of pathologist - Serious break in chain of evidence - Criminal Procedure Code, s. 340 - Penal Code, ss. 149, 302
PP v. Vincent Jude Xavier
(Badariah Sahamid JC) [2010] 3 CLJ 754 [HC]

Documentary evidence - Chemist's report - Inadmissibility of - Serious break in chain of evidence
PP v. Vincent Jude Xavier
(Badariah Sahamid JC) [2010] 3 CLJ 754 [HC]

Expert evidence - Chemist's evidence - Failure by prosecution to call chemist as witness - Whether absence of evidence caused a serious break in chain of evidence
PP v. Vincent Jude Xavier
(Badariah Sahamid JC) [2010] 3 CLJ 754 [HC]

Expert evidence - Need for - Pathologist's testimony - Whether crucial to prosecution's case - Admissibility of pathologist's medical report - Criminal Procedure Code, s. 340 - Penal Code, ss. 149, 302
PP v. Vincent Jude Xavier
(Badariah Sahamid JC) [2010] 3 CLJ 754 [HC]

Statement - Cautioned statement - Test fitting of clothes - Whether test fitting of cloths an action or conduct amounting to statement envisaged ins. 37A(1) Dangerous Drugs Act 1952
PP v. Premakumar Balan & Anor
(Zamani A Rahim JC) [2010] 3 CLJ 736 [HC]

Witness - Credibility of - Findings of fact by trial judge based on credibility of witnesses - Whether findings fully supported by evidence
Audrey Karen Barry v. Datuk Dr Yee Moh Chai
(Alauddin Mohd Sheriff PCA, Arifin Zakaria CJ (Malaya) & Nik Hashim FCJ) [2010] 3 CLJ 660 [FC]

Witness - Credibility - Wife of accused - Whether value of testimony diminished - Credit of witness unscathed
PP v. Premakumar Balan & Anor
(Zamani A Rahim JC) [2010] 3 CLJ 736 [HC]

Witness - Failure of prosecution to call material witnesses - Whether prima facie case against accused proved
PP v. Vincent Jude Xavier
(Badariah Sahamid JC) [2010] 3 CLJ 754 [HC]

FAMILY LAW

Divorce - Petition - Presentation to court before expiration of period of two years from date of marriage - Exceptional circumstances or hardship - Whether reference to a conciliatory body impracticable - Law Reform (Marriage and Divorce) Act 1976, ss. 50(2), 106(1)(vi)
Kiranjit Kaur Kalwant Singh v. Chandok Narinderpal Singh
(Suraya Othman J) [2010] 3 CLJ 724 [HC]

POLICE

Disciplinary proceedings - Dismissal - Dismissal of Chief Inspector on charges under Public Officers (Conduct and Discipline) Regulations 1993 - Whether officer may be presumed to know of his rights - Whether letter to show cause must specifically mention possible penalty of dismissal or reduction in rank - Whether officer given reasonable opportunity of being heard and to state his case - Whether officer denied of his constitutional rights - Articles 5(1), 8(1) & 135(2) Federal Constitution - Regulation 28(1) Public Officers (Conduct and Discipline) Regulations 1993
Abdul Aziz Mohd Alias v. Timbalan Ketua Polis Negara, Malaysia & Anor
(Arifin Zakaria CJ (Malaya), Zulkefli Makinudin & Mohd Ghazali Yusoff FCJJ) [2010] 3 CLJ 643 [FC]

PUBLIC SERVANTS

Dismissal - Dismissal of police officer - Dismissal of Chief Inspector on charges under Public Officers (Conduct and Discipline) Regulations 1993 - Whether letter to show cause must specifically mention possible penalty of dismissal or reduction in rank - Whether officer given reasonable opportunity of being heard and to state his case - Whether officer denied of his constitutional rights - Articles 5(1), 8(1) & 135(2) Federal Constitution - Regulation 28(1) Public Officers (Conduct and Discipline) Regulations 1993
Abdul Aziz Mohd Alias v. Timbalan Ketua Polis Negara, Malaysia & Anor
(Arifin Zakaria CJ (Malaya), Zulkefli Makinudin & Mohd Ghazali Yusoff FCJJ) [2010] 3 CLJ 643 [FC]

Statutory interpretation

Subordinate legislation - Primary method of construction - Whether words to be given their natural and ordinary meaning - Sewerage Services (Charges) Regulations 1994
Yong Seng Yeow v. Indah Water Konsortium Sdn Bhd
(Zaleha Zahari, Ahmad Maarop & Sulaiman Daud JJCA) [2010] 3 CLJ 711 [CA]

Words & phrases

'user' - Sewerage Services (Charges) Regulations 1994
Yong Seng Yeow v. Indah Water Konsortium Sdn Bhd
(Zaleha Zahari, Ahmad Maarop & Sulaiman Daud JJCA) [2010] 3 CLJ 711 [CA]

CASE OF THE WEEK

SABAH FOREST INDUSTRIES SDN BHD v. UNP PLYWOOD SDN BHD

JURISDICTION: Federal Court - Inherent powers - Power to review own decision - Allegation that panel that disposed of appeal was in breach of natural justice - Allegation that panel that disposed of appeal could not review suitability of questions already approved by leave panel - Whether threshold of r. 137, Rules of the Federal Court 1995 satisfied

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