Bulletin_14

CLJ Bulletin, Issue 2011, Vol 14

15 April 2011

CLJ Law Malaysia

http://www.cljlaw.com

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New This Week	1. Legislation Highlights
	2. Articles
	a) Legal Network Series Articles
	3. Latest Cases
	a) Legal Network Series
	b) CLJ Volume 3 (Part 2) 2011
	c) CLJ Volume 3 (Part 3) 2011

1. Legislation Highlights

Principal Acts

NUMBER
TITLE

DATE COMING INTO FORCE

REPEALING

ACT 720 Malaysia Deposit Insurance Corporation Act 2011 31 December 2010 - Nil -

ACT 721 International Islamic Liquidity Management Corporation Act 2011 25 October 2010 - Nil -

ACT 722 Fees (Malaysian Meteorological Department (Validation) Act 2011 28 January 2011 - Nil -

ACT 723 Price Control And Anti-Profiteering Act 2011 Not Yet In Force - Nil -

ACT 724 National Visual Arts Development Board Act 2011 Not Yet In Force - Nil -

Amending Acts

NUMBER

TITLE

DATE COMING INTO FORCE

AMENDING

ACT A1387 Malaysian Timber Industry Board (Incorporation) (Amendment) Act 2010 Not Yet In Force ACT 105

ACT A1388 Supply Act 2011 31 December 2010 - Nil -

ACT A1389 Bank Simpanan Nasional (Amendment) Act 2011 24 February 2011 [P.U. (B) 79/2011] ACT 146

ACT A1390 Moneylenders (Amendment) Act 2011 Not Yet In Force ACT 400

ACT A1391 Road Transport (Amendment) Act 2011 31 January 2011 [P.U. (B) 37/2011] ACT 333

PU(A)

NUMBER TITLE DATE COMING INTO FORCE
PRINCIPAL ACT NO

PU(A) 089/2011 Control Of Supplies (Exemption) Order 2011 17 March 2011 ACT 122

PU(A) 090/2011 Control Of Supplies (Exemption) (No 2) Order 2011 17 March 2011 ACT 122

PU(A) 091/2011 Control Of Supplies (Chicken) (Exemption) Order 2011 17 March 2011 ACT 122

PU(A) 092/2011 Employment (Termination And Lay-Off Benefits) (Amendment) Regulations 2011 17 March 2011 ACT 265

PU(A) 093/2011 Customs (Values) (Palm Oil) (No 12) Order 2011 21 March 2011 ACT 235

PU(B)

NUMBER TITLE DATE COMING INTO FORCE
PRINCIPAL ACT NO

PU(B) 138/2011 Reservation Of Land For Public Purpose - Federal Territory Of Kuala Lumpur: Mukim - Kuala Lumpur 31 March 2011 ACT 56/1965

PU(B) 139/2011 Reservation Of Land For Public Purpose - Federal Territory Of Kuala Lumpur: Mukim - Kuala Lumpur 31 March 2011 ACT 56/1965

PU(B) 140/2011 Reservation Of Land For Public Purpose - Federal Territory Of Kuala Lumpur: Mukim - Kuala Lumpur 31 March 2011 ACT 56/1965

PU(B) 141/2011 Reservation Of Land For Public Purpose - Federal Territory Of Kuala Lumpur: Mukim - Kuala Lumpur 31 March 2011 ACT 56/1965

PU(B) 142/2011 Reservation Of Land For Public Purpose - Federal Territory Of Kuala Lumpur: Mukim - Kuala Lumpur 31 March 2011 ACT 56/1965

2. Articles

a) Legal Network Series Articles

1. Defining Charity For A New Generation, Y?** ^{[Read
excerpt]}
By John Birrell*

2. The Right Of Employees In Dismissal Cases Under The Federal Constitution** ^{[Read
excerpt]}
By Prof. Dr. Kamal Halili Hassan*

3. Latest Cases

a) Legal Network Series

CITATION TITLE SUBJECT

[2009] 1 LNS 613 [HC] Foo Nyuk Fung v. Mohamad Ahmad & Ors & Another Cases

CONTRACT: Breach - Damages - Late delivery of plaintiffs' lot entitlements by 1^st, 2^nd and 3^rd defendants in First Suit - Assignment of amended Sale and Purchase Agreements to SUDC without plaintiffs' consent - Whether defendants breached Agreements - Whether defendants liable for damages - Whether SUDC liable to pay plaintiffs agreed liquidated damages for late delivery of lot entitlements under Joint Venture Agreement

CONTRACT: Breach - Specific performance - Whether DW1, JUBIM and SUDC liable to deliver plaintiffs' lot entitlements under Sale and Purchase Agreements or Joint Venture Agreement - Whether plaintiffs induced to consent to assignment of Sale and Purchase Agreements whereby lands were transferred to SUDC - Whether SUDC estopped from benefitting from lands free of its obligations to construct and deliver lot entitlements to plaintiffs

NATIVE LAW AND CUSTOM: Land dispute - Native title - Whether Joint Venture Agreement between 1^st and 2^nd defendants in Second Suit to develop lands in contravention of s. 17(1) of Land Ordinance - SUDC not a native - Use of DWI to buy native lands - Whether Joint Venture Agreement null and void

TRUSTS AND TRUSTEES: Constructive trust - JUBIM and SUDC entering into Joint Venture Agreement to develop lands - Lands registered under SUDC for development - Failure by SUDC to complete and deliver lot entitlements to plaintiffs despite representations and assurances - Whether JUBIM and SUDC hold lands in trust for benefit of plaintiffs pending delivery of lot entitlements

[2009] 1 LNS 615 [HC] PP v. Abdul Rashid Ahmad

CRIMINAL LAW: Dangerous Drugs Acts 1952 - Section 39B(1) - Uncertainty whether prosecution relying on presumption of trafficking under Dangerous Drugs Act 1952, s. 37 (da) or actual trafficking - Cannabis found on bedroom floor - Accused in possession of 71.8 grams of cannabis - Weight of drugs below minimum statutory amount - Whether presumption of trafficking applicable - Accused in passive possession of cannabis - Whether sufficient to constitute actual trafficking - Whether evidence of possession must be accompanied by some overt act on the part of the accused

CRIMINAL PROCEDURE: Defence - Bare denial of possession and knowledge of the cannabis found on bedroom floor - Whether accused's version believable - Whether prosecution proved its case beyond any reasonable doubt

CRIMINAL PROCEDURE: Sentence - Possession of cannabis - Mitigation - First offender - Consideration of public interest - Rampancy of drug offences - Whether deterrent sentence appropriate

[2009] 1 LNS 618 [HC] General Corporation Bhd v. Yoke Keng Holdings Sdn Bhd & Ors

CIVIL PROCEDURE: Limitation - Plaintiff purchasing shares of defendant company pursuant to agreement dated 6 July 1983 - Warranty that tax returns correct and not subject to back duty claim - Back duty and penalty imposed by Inland Revenue - Plaintiff entering into settlement agreement with Inland Revenue - Suit for indemnity commenced on 5 July 1989 - Defendants denying breach of warranty and raising limitation - Plaintiff filing claim within 6 years from the date of agreement - Whether defence of limitation applicable - Tax liability ascertained in 1992 after 6 years from execution of agreement - Plaintiff amending statement of claim to crystallise claim against defendants - Whether Limitation Act prohibits quantification of claims after limitation period

CONTRACT: Indemnity - Failure by plaintiff to join all vendors to suit - Whether apportionment of liability necessary - Whether any provision in sale and purchase agreement to limit liability of each vendor to proportionate shareholding sold to plaintiff - Whether defendants' liability joint and several

CONTRACT: Breach - Warranties - Defendants unaware of tax liability and not given opportunity to explain to plaintiff or state their case to Inland Revenue on contingent tax - Plaintiff's unilaterally entering into settlement agreement with Inland Revenue and filing suit for indemnity - Whether plaintiff's action supported by any terms in sale agreement - Whether appropriate for plaintiff to sue for breach of contract

[2009] 1 LNS 620 [HC] Mega Total Corporation Sdn Bhd v. Ong Jin Tay; Yee Lau & Partners (Garnishee)
CIVIL PROCEDURE: Appeal - Appeal to High Court - Appellant's/judgment creditor's appeal against dismissal of garnishment order against garnishee - Appeal record filed out of time - No application for extension of time filed - Effect thereof - Failure to set down question of law in notice of appeal - Objection raised by respondent - Whether failure to remedy defect in notice of appeal fatal

[2009] 1 LNS 621 [HC] Bintang Merdu Sdn Bhd v. Tan Kau Tiah @ Tan Ching Hai & Anor & Another Cases

ARBITRATION: Arbitrator - Misconduct - Developer requesting stay of arbitration proceedings pending developer's application for removal of arbitrator - Arbitrator refusing and proceeding with hearing - Whether the arbitrator can be removed and/or the award set aside on grounds of misconduct for refusing adjournment - Arbitrator completing hearing and publishing award before developer's suit 76 to remove arbitrator heard - Developer filing suit 133 to set aside arbitration award - Whether arbitrator failed to observe rules of natural justice

CIVIL PROCEDURE: Security for costs - Deputy registrar ordered security for costs of RM1,393,187.50 - Whether excessive - Whether arguments of law and related issues sufficiently complex to warrant sum ordered

CITATION	TITLE	SUBJECT
[2009] 1 LNS 613 [HC]	Foo Nyuk Fung v. Mohamad Ahmad & Ors & Another Cases	CONTRACT: Breach - Damages - Late delivery of plaintiffs' lot entitlements by 1^st, 2^nd and 3^rd defendants in First Suit - Assignment of amended Sale and Purchase Agreements to SUDC without plaintiffs' consent - Whether defendants breached Agreements - Whether defendants liable for damages - Whether SUDC liable to pay plaintiffs agreed liquidated damages for late delivery of lot entitlements under Joint Venture Agreement CONTRACT: Breach - Specific performance - Whether DW1, JUBIM and SUDC liable to deliver plaintiffs' lot entitlements under Sale and Purchase Agreements or Joint Venture Agreement - Whether plaintiffs induced to consent to assignment of Sale and Purchase Agreements whereby lands were transferred to SUDC - Whether SUDC estopped from benefitting from lands free of its obligations to construct and deliver lot entitlements to plaintiffs NATIVE LAW AND CUSTOM: Land dispute - Native title - Whether Joint Venture Agreement between 1^st and 2^nd defendants in Second Suit to develop lands in contravention of s. 17(1) of Land Ordinance - SUDC not a native - Use of DWI to buy native lands - Whether Joint Venture Agreement null and void TRUSTS AND TRUSTEES: Constructive trust - JUBIM and SUDC entering into Joint Venture Agreement to develop lands - Lands registered under SUDC for development - Failure by SUDC to complete and deliver lot entitlements to plaintiffs despite representations and assurances - Whether JUBIM and SUDC hold lands in trust for benefit of plaintiffs pending delivery of lot entitlements
[2009] 1 LNS 615 [HC]	PP v. Abdul Rashid Ahmad	CRIMINAL LAW: Dangerous Drugs Acts 1952 - Section 39B(1) - Uncertainty whether prosecution relying on presumption of trafficking under Dangerous Drugs Act 1952, s. 37 (da) or actual trafficking - Cannabis found on bedroom floor - Accused in possession of 71.8 grams of cannabis - Weight of drugs below minimum statutory amount - Whether presumption of trafficking applicable - Accused in passive possession of cannabis - Whether sufficient to constitute actual trafficking - Whether evidence of possession must be accompanied by some overt act on the part of the accused CRIMINAL PROCEDURE: Defence - Bare denial of possession and knowledge of the cannabis found on bedroom floor - Whether accused's version believable - Whether prosecution proved its case beyond any reasonable doubt CRIMINAL PROCEDURE: Sentence - Possession of cannabis - Mitigation - First offender - Consideration of public interest - Rampancy of drug offences - Whether deterrent sentence appropriate
[2009] 1 LNS 618 [HC]	General Corporation Bhd v. Yoke Keng Holdings Sdn Bhd & Ors	CIVIL PROCEDURE: Limitation - Plaintiff purchasing shares of defendant company pursuant to agreement dated 6 July 1983 - Warranty that tax returns correct and not subject to back duty claim - Back duty and penalty imposed by Inland Revenue - Plaintiff entering into settlement agreement with Inland Revenue - Suit for indemnity commenced on 5 July 1989 - Defendants denying breach of warranty and raising limitation - Plaintiff filing claim within 6 years from the date of agreement - Whether defence of limitation applicable - Tax liability ascertained in 1992 after 6 years from execution of agreement - Plaintiff amending statement of claim to crystallise claim against defendants - Whether Limitation Act prohibits quantification of claims after limitation period CONTRACT: Indemnity - Failure by plaintiff to join all vendors to suit - Whether apportionment of liability necessary - Whether any provision in sale and purchase agreement to limit liability of each vendor to proportionate shareholding sold to plaintiff - Whether defendants' liability joint and several CONTRACT: Breach - Warranties - Defendants unaware of tax liability and not given opportunity to explain to plaintiff or state their case to Inland Revenue on contingent tax - Plaintiff's unilaterally entering into settlement agreement with Inland Revenue and filing suit for indemnity - Whether plaintiff's action supported by any terms in sale agreement - Whether appropriate for plaintiff to sue for breach of contract
[2009] 1 LNS 620 [HC]	Mega Total Corporation Sdn Bhd v. Ong Jin Tay; Yee Lau & Partners (Garnishee)	CIVIL PROCEDURE: Appeal - Appeal to High Court - Appellant's/judgment creditor's appeal against dismissal of garnishment order against garnishee - Appeal record filed out of time - No application for extension of time filed - Effect thereof - Failure to set down question of law in notice of appeal - Objection raised by respondent - Whether failure to remedy defect in notice of appeal fatal
[2009] 1 LNS 621 [HC]	Bintang Merdu Sdn Bhd v. Tan Kau Tiah @ Tan Ching Hai & Anor & Another Cases	ARBITRATION: Arbitrator - Misconduct - Developer requesting stay of arbitration proceedings pending developer's application for removal of arbitrator - Arbitrator refusing and proceeding with hearing - Whether the arbitrator can be removed and/or the award set aside on grounds of misconduct for refusing adjournment - Arbitrator completing hearing and publishing award before developer's suit 76 to remove arbitrator heard - Developer filing suit 133 to set aside arbitration award - Whether arbitrator failed to observe rules of natural justice CIVIL PROCEDURE: Security for costs - Deputy registrar ordered security for costs of RM1,393,187.50 - Whether excessive - Whether arguments of law and related issues sufficiently complex to warrant sum ordered

b. CLJ Volume 3 (Part 2) 2011

COURT

COURT OF APPEAL

Chee Kuat Fong & Ors v. Amalan Tepat Sdn Bhd & Anor And Another Appeal
Raus Sharif, Hasan Lah, Sulong Matjeraie
(Contract - Construction - Property development - Claim for commission for sale of project) [2011] 3 CLJ 117 [CA]

Commerzbank (South East Asia Ltd) v. Tow Kong Liang
Heliliah Mohd Yusof, KN Segara, Ramly Ali
(Civil Procedure - Reciprocal enforcement of judgments - Setting aside registration of foreign judgment) [2011] 3 CLJ 127 [CA]

KTS News Sdn Bhd v. See Hua Realty Bhd & Anor
Low Hop Bing, Syed Ahmad Helmy, Mohamed Apandi Ali
(Constitutional Law; Civil Procedure - Courts - Jurisdiction - Setting aside) [2011] 3 CLJ 144 [CA]

Lembaga Lebuhraya Malaysia v. Semenyih Jaya Sdn Bhd
Abdul Malik Ishak, KN Segara, Jeffrey Tan
(Civil Procedure; Evidence; Land Law; Words And Phrases - Land reference proceedings - Acquisition of land - Locus standi) [2011] 3 CLJ 159 [CA]

HIGH COURT

Kertih Port Sdn Bhd v. Pemunya Kapal "Shema"
Nallini Pathmanathan
(Shipping - Arrest of vessel - Assessment and taxing for costs) [2011] 3 CLJ 184 [HC]

Ketua Pengarah Hasil Dalam Negeri v. Cardinal Health Malaysia 211 Sdn Bhd
Aziah Ali
(Revenue Law - Income tax - Chargeable income - Originating cause) [2011] 3 CLJ 196 [HC]

Lau Keen Fai v. Lim Ban Kay
Aziah Ali
(Legal Profession - Professional discipline - Misconduct) [2011] 3 CLJ 213 [HC]

TPPT Sdn Bhd v. Asas Gabungan Sdn Bhd
Mohamad Ariff Yusof
(Arbitration - Award - Setting aside - Irregularity in proceedings) [2011] 3 CLJ 228 [HC]

SUBJECT INDEX

ARBITRATION

Award - Setting aside - Irregularity in proceedings - Allegation of - Whether arbitrator acted unfairly and in breach of the rules of natural justice - Whether there was manifest error of law on face of award - Cairns Energy India Pty Ltd & Anor v. Government of India
TPPT Sdn Bhd v. Asas Gabungan Sdn Bhd
(Mohamad Ariff Yusof J) [2011] 3 CLJ 228 [HC]

CIVIL PROCEDURE

Judgment - Setting aside - Jurisdiction of court to review and set aside order made by first corum of the court - Functus officio - Doctrine of - Whether order regularly obtained could be altered, varied or set aside by another coram of the court - Whether application an abuse of the court process - Federal Constitution, art. 121(1B) - Courts of Judicature Act 1964, s. 67(1) - Rules of the High Court 1980, O. 92 r. 4
KTS News Sdn Bhd v. See Hua Realty Bhd & Anor
(Low Hop Bing, Syed Ahmad Helmy, Mohamed Apandi Ali JJCA) [2011] 3 CLJ 144 [CA]

Locus standi - Land reference proceedings - Whether applicant for land reference had locus standi - Liberalisation of rule of locus standi to seek judicial redress
Lembaga Lebuhraya Malaysia v. Semenyih Jaya Sdn Bhd
(Abdul Malik Ishak, KN Segara, Jeffrey Tan JJCA) [2011] 3 CLJ 159 [CA]

Reciprocal enforcement of judgments - Setting aside registration of foreign judgment - Application for registration of Singapore judgment in Malaysia - Whether writ of summons and order of Singapore court served through private agent - Whether service contrary to O. 65 rr. 2 & 3 Rules of the High Court 1980 - Whether enforcement of Singapore judgment contrary to public policy in Malaysia
Commerzbank (South East Asia Ltd) v. Tow Kong Liang
(Heliliah Mohd Yusof, KN Segara, Ramly Ali JJCA) [2011] 3 CLJ 127 [CA]

Striking out - Action - Application for - Application to strike out land reference proceedings on grounds of want of locus standi - Whether party seeking land reference a "person interested" within meaning of Land Acquisition Act 1960 - Whether striking out application irregular and unauthorized under provisions of LAA 1960
Lembaga Lebuhraya Malaysia v. Semenyih Jaya Sdn Bhd
(Abdul Malik Ishak, KN Segara, Jeffrey Tan JJCA) [2011] 3 CLJ 159 [CA]

CONSTITUTIONAL LAW

Courts - Jurisdiction - Whether court has inherent power to review and set aside orders made by first coram of the court - Functus officio - Doctrine of - Whether order regularly obtained could be altered, varied or set aside by another coram - Federal Constitution, art. 121(1B) - Courts of Judicature Act 1964, s. 67(1) - Rules of the High Court 1980, O. 92 r. 4
KTS News Sdn Bhd v. See Hua Realty Bhd & Anor
(Low Hop Bing, Syed Ahmad Helmy, Mohamed Apandi Ali JJCA) [2011] 3 CLJ 144 [CA]

CONTRACT

Construction - Property development - Claim for commission for sale of project - Whether plaintiffs employees of developer - No mention of percentage in plaintiffs' commission - Whether sales figures published by developer had merit - Whether plaintiffs entitled to commission - Findings of trial judge - Whether there was reason to exercise appellate intervention
Chee Kuat Fong & Ors v. Amalan Tepat Sdn Bhd & Anor And Another Appeal
(Raus Sharif, Hasan Lah, Sulong Matjeraie Jjca) [2011] 3 CLJ 117 [CA]

EVIDENCE

Judicial notice - Matters that are so notorious or clearly established - Whether court could take judicial notice of the fact that applicant was governing body authorised to deal with all matters pertaining to highways in Malaysia
Lembaga Lebuhraya Malaysia v. Semenyih Jaya Sdn Bhd
(Abdul Malik Ishak, KN Segara, Jeffrey Tan JJCA) [2011] 3 CLJ 159 [CA]

LAND LAW

Acquisition of land - Compensation - Award by Land Administrator - Land acquired for building of highway - Applicant objecting to amount of award - Applicant governing body authorised to deal with all matters pertaining to highways - Applicant responsible for paying compensation awarded - Whether applicant had locus standi - Whether applicant a "person interested" within meaning of Land Acquisition Act 1960
Lembaga Lebuhraya Malaysia v. Semenyih Jaya Sdn Bhd
(Abdul Malik Ishak, KN Segara, Jeffrey Tan JJCA) [2011] 3 CLJ 159 [CA]

LEGAL PROFESSION

Professional discipline - Misconduct - Disciplinary hearing - Whether finding of misconduct perverse - Whether there was procedural unfairness or breach of rules of natural justice - Legal Profession Act 1976, s. 103D & 103E - Legal Profession (Disciplinary Proceedings) (Investigating Tribunal and Disciplinary Committee) Rules 1994, r. 3
Lau Keen Fai v. Lim Ban Kay
(Aziah Ali J) [2011] 3 CLJ 213 [HC]

REVENUE LAW

Income tax - Chargeable income - Originating cause - Malaysian company granting loans to another company within same group in Netherlands - Whether interest earned from loan granted was taxable - Whether interest was foreign-source income - Determining originating cause of interest income - Income not accruing in or derived from Malaysia - Interest not taxable - Income Tax (Exemption) (No. 48) Order 1997 - Income Tax Act, 1967 para. 28 of sch. 6 ('para. 28')
Ketua Pengarah Hasil Dalam Negeri v. Cardinal Health Malaysia 211 Sdn Bhd
(Aziah Ali J) [2011] 3 CLJ 196 [HC]

SHIPPING

Arrest of vessel - Assessment and taxing for costs - Appeal against award of sum given to defendant - Whether expenses incurred in maintenance and preservation of vessel during course of arrest claimable - Whether Registrar erred in findings of fact or in law
Kertih Port Sdn Bhd v. Pemunya Kapal "Shema"
(Nallini Pathmanathan J) [2011] 3 CLJ 184 [HC]

WORDS AND PHRASES

'Person interested' - Meaning of - Purposive interpretation - Land Acquisition Act 1960 s. 37
Lembaga Lebuhraya Malaysia v. Semenyih Jaya Sdn Bhd
(Abdul Malik Ishak, KN Segara, Jeffrey Tan JJCA) [2011] 3 CLJ 159 [CA]

c. CLJ Volume 3 (Part 3) 2011

COURT

FEDERAL COURT

Koperasi Jimat Cermat Dan Pinjaman Keretapi Bhd v. Kumar Gurusamy
Arifin Zakaria CJ (Malaya), Zulkefli Makinudin, James Foong FCJJ
(Civil Procedure; Unincorporated Associations - Leave to appeal - Federal Court - Co-operative society) [2011] 3 CLJ 241 [FC]

Kumaran Sappani v. PP
Richard Malanjum CJ (Sabah & Sarawak), James Foong, Heliliah Mohd Yusof FCJJ
(Criminal Procedure - Appeal - Witness's credibility - Defence - Bare denial) [2011] 3 CLJ 251 [FC]

COURT OF APPEAL

Jennifer Anne Harper v. Timothy Theseira
Low Hop Bing, Syed Ahmad Helmy, Mohamed Apandi Ali JJCA
(Civil Law Act; Damages; Statutory Interpretation; Words & Phrases - Dependency claim) [2011] 3 CLJ 272 [CA]

HIGH COURT

Amaran Hj Abdullah & Ors v. Amanah Raya Bhd
Zura Yahya JC
(Trusts; Evidence; Civil Procedure; Limitation - Breach of trust - Documentary evidence) [2011] 3 CLJ 281 [HC]

Dato' Dr Joseph Eravelly v. Dato' Hilmi Mohd Nor & Ors
VT Singham J
(Administrative Law; Civil Procedure - Application to recuse judge) [2011] 3 CLJ 294 [HC]

Sipadan Dive Centre Sdn Bhd & Ors v. The State Government Of The State Of Sabah
David Wong Dak Wah J
(Civil Procedure; Land Law - Licence - Occupation of land) [2011] 3 CLJ 308 [HC]

Wee Choo Keong v. Ketua Pengarah Perkhidmatan Awam, Malaysia
Mohd Zawawi Salleh J
(Administrative Law; Civil Procedure; Constitutional Law; Words & Phrases - Government proceedings) [2011] 3 CLJ 331 [HC]

SUBJECT INDEX

ADMINISTRATIVE LAW

Exercise of administrative powers - Judicial review - Decision - Letter written by Director General of Public Services stating that Member of Parliament not entitled to pension - Applicant affected by decision - Letters constituting concluded government stance likely to infringe applicant's right - Whether constitutes a decision capable of being reviewed
Wee Choo Keong v. Ketua Pengarah Perkhidmatan Awam, Malaysia
(Mohd Zawawi Salleh J) [2011] 3 CLJ 331 [HC]

Exercise of administrative powers - Judicial review - Remedies - Certiorari and mandamus - Decision of Director General of Public Services that applicant not entitled to Member of Parliament pension due to being found guilty for contempt of court - Whether applicant was "convicted of an offence by a court of law" - Whether entitlement to pension affected - Article 48(1)(e) Federal Constitution
Wee Choo Keong v. Ketua Pengarah Perkhidmatan Awam, Malaysia
(Mohd Zawawi Salleh J) [2011] 3 CLJ 331 [HC]

Exercise of judicial functions - Bias - Test of real danger of bias - Objection to mediating judge sitting as trial judge - Practice Direction No. 5 of 2010 - No danger of bias - Application for recusal allowed to preserve integrity and reputation of judge
Dato' Dr Joseph Eravelly v. Dato' Hilmi Mohd Nor & Ors
(VT Singham J) [2011] 3 CLJ 294 [HC]

CIVIL LAW ACT

Damages - Dependency claim - Fatal accident - Loss of support - Age of deceased at time of death - Whether claim precluded by virtue of proviso in s. 7(3)(iv)(a) Civil Law Act 1956 - Intention of Parliament - Whether various annuities and pension payments received by deceased were "earnings" under s. 7(3)(iv)(a) - Civil Law Act 1956, ss. 7(3)(iv)(a), (11), 28A(2)(c)(i)
Jennifer Anne Harper v. Timothy Theseira
(Low Hop Bing, Syed Ahmad Helmy, Mohamed Apandi Ali JJCA) [2011] 3 CLJ 272 [CA]

CIVIL PROCEDURE

Appeal - Appeal to Federal Court - Application for leave to appeal against decision of Court of Appeal - Matter originated from Co-operative Tribunal under Co-operative Societies Act 1993 - Whether High Court exercising its original or appellate jurisdiction in an appeal from Co-operative Tribunal - Whether application came within ambit of s. 96(a) Courts of Judicature Act 1964 - Co-operative Societies Act 1993, s. 83(7) - Rules of the High Court 1980, O. 55 r. 13 - Courts of Judicature Act 1964, s. 96(a)
Koperasi Jimat Cermat Dan Pinjaman Keretapi Bhd v. Kumar Gurusamy
(Arifin Zakaria CJ (Malaya), Zulkefli Makinudin, James Foong FCJJ) [2011] 3 CLJ 241 [FC]

Appeal - Leave to appeal - Application for leave to appeal to Federal Court against Court of Appeal's decision - Matter originated from Co-operative Tribunal under Co-operative Societies Act 1993 - Whether High Court exercising its original or appellate jurisdiction in an appeal from Co-operative Tribunal - Whether application came within ambit of s. 96(a) Courts of Judicature Act 1964 - Co-operative Societies Act 1993, s. 83(7) - Rules of the High Court 1980, O. 55 r. 13 - Courts of Judicature Act 1964, s. 96(a)
Koperasi Jimat Cermat Dan Pinjaman Keretapi Bhd v. Kumar Gurusamy
(Arifin Zakaria CJ (Malaya), Zulkefli Makinudin, James Foong FCJJ) [2011] 3 CLJ 241 [FC]

Government proceedings - Limitation - Claim by Member of Parliament for pension - Claim filed four years and two months after alleged non-payment of pension - Whether claim statute barred - Government Proceedings Act 1956, s. 5 - Public Authorities Protection Act 1948, s. 2(a)
Wee Choo Keong v. Ketua Pengarah Perkhidmatan Awam, Malaysia
(Mohd Zawawi Salleh J) [2011] 3 CLJ 331 [HC]

Judge - Application to recuse judge - Real danger of bias test - Objection to mediating judge sitting as trial judge - Practice Direction No. 5 of 2010 - No danger of bias - Application for recusal allowed to preserve integrity and reputation of judge
Dato' Dr Joseph Eravelly v. Dato' Hilmi Mohd Nor & Ors
(VT Singham J) [2011] 3 CLJ 294 [HC]

Jurisdiction - Federal Court - Application for leave to appeal to Federal Court against Court of Appeal's decision - Matter originated from Co-operative Tribunal under Co-operative Societies Act 1993 - Whether High Court exercising its original or appellate jurisdiction in an appeal from Co-operative Tribunal - Whether application came within ambit of s. 96(a) Courts of Judicature Act 1964 - Co-operative Societies Act 1993, s. 83(7) - Rules of the High Court 1980, O. 55 r. 13 - Courts of Judicature Act 1964, s. 96(a)
Koperasi Jimat Cermat Dan Pinjaman Keretapi Bhd v. Kumar Gurusamy
(Arifin Zakaria CJ (Malaya), Zulkefli Makinudin, James Foong FCJJ) [2011] 3 CLJ 241 [FC]

Limitation - Government proceedings - Claim by Member of Parliament for pension - Claim filed four years and two months after alleged nonpayment of pension - Whether claim statute barred - Government Proceedings Act 1956, s. 5 - Public Authorities Protection Act 1948 s. 2(a)
Wee Choo Keong v. Ketua Pengarah Perkhidmatan Awam, Malaysia
(Mohd Zawawi Salleh J) [2011] 3 CLJ 331 [HC]

Parties - Defendant - Misjoinder - Whether defendant wrongly named as a party - Whether Sabah State Government wrongly named as authority having control over Pulau Sipadan
Sipadan Dive Centre Sdn Bhd & Ors v. The State Government Of The State Of Sabah
(David Wong Dak Wah J) [2011] 3 CLJ 308 [HC]

Pleadings - Facts not pleaded - Failure to plead a defence - Whether facts not pleaded in the statement of defence can be raised during trial
Amaran Hj Abdullah & Ors v. Amanah Raya Bhd
(Zura Yahya JC) [2011] 3 CLJ 281 [HC]

Pleadings - Facts not pleaded - Issue whether defendant wrongly named as a party not pleaded - No attempt to amend pleadings
Sipadan Dive Centre Sdn Bhd & Ors v. The State Government Of The State Of Sabah
(David Wong Dak Wah J) [2011] 3 CLJ 308 [HC]

Trial - Evidence - No evidence being led on behalf of defence - Six witnesses giving evidence on behalf of plaintiffs - Whether evidence given by plaintiffs ought to be presumed to be true
Sipadan Dive Centre Sdn Bhd & Ors v. The State Government Of The State Of Sabah
(David Wong Dak Wah J) [2011] 3 CLJ 308 [HC]

CONSTITUTIONAL LAW

Government - Proceedings against - Pensions - Claim by Member of Parliament for pension - Claim filed four years and two months after alleged non-payment of pension - Whether claim statute barred - Government Proceedings Act 1956, s. 5 - Public Authorities Protection Act 1948, s. 2(a)
Wee Choo Keong v. Ketua Pengarah Perkhidmatan Awam, Malaysia
(Mohd Zawawi Salleh J) [2011] 3 CLJ 331 [HC]

CRIMINAL PROCEDURE

Appeal - Decision of trial judge - Whether correctly arrived at - Whether a prima facie case had been made out against the appellant - Evidence adduced
Kumaran Sappani v. PP
(Richard Malanjum CJ (Sabah & Sarawak), James Foong, Heliliah Mohd Yusof FCJJ) [2011] 3 CLJ 251 [FC]

Appeal - Witness's credibility - Whether the trial judge had been right in arriving at his findings - Factors to consider - Defence failing to counter witness's evidence - Effect of
Kumaran Sappani v. PP
(Richard Malanjum CJ (Sabah & Sarawak), James Foong, Heliliah Mohd Yusof FCJJ) [2011] 3 CLJ 251 [FC]

Defence - Denial - Bare denial - Effect of
Kumaran Sappani v. PP
(Richard Malanjum CJ (Sabah & Sarawak), James Foong, Heliliah Mohd Yusof FCJJ) [2011] 3 CLJ 251 [FC]

Witness - Calling of witness by prosecution - Failure to - Effect of - Whether an adverse inference could be drawn against the prosecution - Evidence Act 1950, s. 114(g)
Kumaran Sappani v. PP
(Richard Malanjum CJ (Sabah & Sarawak), James Foong, Heliliah Mohd Yusof FCJJ) [2011] 3 CLJ 251 [FC]

DAMAGES

Fatal accident - Dependency claim - Loss of support - Age of deceased at time of death - Whether claim precluded by virtue of proviso in s. 7(3)(iv)(a) Civil Law Act 1956 - Intention of Parliament - Whether various annuities and pension payments received by deceased were "earnings" under s. 7(3)(iv)(a) - Civil Law Act 1956, ss. 7(3)(iv)(a), (11), 28A(2)(c)(i)
Jennifer Anne Harper v. Timothy Theseira
(Low Hop Bing, Syed Ahmad Helmy, Mohamed Apandi Ali JJCA) [2011] 3 CLJ 272 [CA]

EVIDENCE

Credibility - Witness unreliable - Witness present in court - Whether witness must exhibit familiarity with entries in trustee's accounts - Whether witness has provided proof of involvement in trustee's affairs
Amaran Hj Abdullah & Ors v. Amanah Raya Bhd
(Zura Yahya JC) [2011] 3 CLJ 281 [HC]

Documentary evidence - Books of accounts - Section 34 Evidence Act 1950 - Whether additional evidence required to claim liability - Whether witness has to have personal knowledge of the entries in the accounts
Amaran Hj Abdullah & Ors v. Amanah Raya Bhd
(Zura Yahya JC) [2011] 3 CLJ 281 [HC]

LAND LAW

Licence - Occupation of land - Plaintiffs in occupation - Plaintiffs operating dive resorts on Pulau Sipadan - Pulau Sipadan gazetted as bird sanctuary and a protected area - Plaintiffs ordered to demolish buildings and vacate - Whether plaintiffs having any proprietary interests or legitimate expectations - Whether defendant's acts amounted to recognition and acquiescence of plaintiffs' rights - Whether defendant may revoke plaintiffs' implied license to occupy due to change of policy in use of Pulau Sipadan - Whether plaintiffs entitled to compensation
Sipadan Dive Centre Sdn Bhd & Ors v. The State Government Of The State Of Sabah
(David Wong Dak Wah J) [2011] 3 CLJ 308 [HC]

Occupation - Legitimate expectation - Plaintiffs operating dive resorts on Pulau Sipadan - Pulau Sipadan gazetted as bird sanctuary and a protected area - Plaintiffs ordered to demolish buildings and vacate - Whether plaintiffs having any proprietary interests or legitimate expectations - Whether defendant's acts amounted to recognition and acquiescence of plaintiffs' rights - Whether defendant may revoke plaintiffs' implied license to occupy due to change of policy in use of Pulau Sipadan - Whether plaintiffs entitled to compensation
Sipadan Dive Centre Sdn Bhd & Ors v. The State Government Of The State Of Sabah
(David Wong Dak Wah J) [2011] 3 CLJ 308 [HC]

LIMITATION

Administration action - Beneficiary's action for breach of trust - Commencement of time for limitation period - Section 22 Limitation Act 1953 -Whether limitation applies in breach of trust cases
Amaran Hj Abdullah & Ors v. Amanah Raya Bhd
(Zura Yahya JC) [2011] 3 CLJ 281 [HC]

STATUTORY INTERPRETATION

Construction of statutes - Legislation by reference - Section 28A(2)(c)(i) Civil Law Act 1956 substantially in pari materia with s. 7(3)(iv)(a) Civil Law Act 1956 - Whether interpretation given by case authorities to s. 28A(2)(c)(i) applicable mutatis mutandis to s. 7(3)(iv)(a) - Intention of Parliament - Civil Law Act 1956, ss. 7(3)(iv)(a), 28A(2)(c)(i)
Jennifer Anne Harper v. Timothy Theseira
(Low Hop Bing, Syed Ahmad Helmy, Mohamed Apandi Ali JJCA) [2011] 3 CLJ 272 [CA]

TRUSTS

Trustees - Breach of trust - Fiduciary obligation - Whether the beneficiaries under a duty to ensure trustee fulfils his obligation in the trust
Amaran Hj Abdullah & Ors v. Amanah Raya Bhd
(Zura Yahya JC) [2011] 3 CLJ 281 [HC]

Trust property - Mixing of trust assets with trustee's personal assets - Whether this is sufficient evidence of misappropriation - Whether plaintiff is required to furnish additional evidence
Amaran Hj Abdullah & Ors v. Amanah Raya Bhd
(Zura Yahya JC) [2011] 3 CLJ 281 [HC]

UNINCORPORATED ASSOCIATIONS

Societies - Co-operative society - Application for leave to appeal to Federal Court against Court of Appeal's decision - Matter originated from Co-operative Tribunal under Co-operative Societies Act 1993 - Whether High Court exercising its original or appellate jurisdiction in an appeal from Co-operative Tribunal - Whether application came within ambit of s. 96(a) Courts of Judicature Act 1964 - Co-operative Societies Act 1993, s. 83(7) - Rules of the High Court 1980, O. 55 r. 13 - Courts of Judicature Act 1964, s. 96(a)
Koperasi Jimat Cermat Dan Pinjaman Keretapi Bhd v. Kumar Gurusamy
(Arifin Zakaria CJ (Malaya), Zulkefli Makinudin, James Foong FCJJ) [2011] 3 CLJ 241 [FC]

WORDS & PHRASES

"convicted of an offence by a court of law" - Meaning of - Article 48(1)(e) Federal Constitution
Wee Choo Keong v. Ketua Pengarah Perkhidmatan Awam, Malaysia
(Mohd Zawawi Salleh J) [2011] 3 CLJ 331 [HC]

"earnings" - Civil Law Act 1956, s. 7(3)(iv)(a) - Meaning of
Jennifer Anne Harper v. Timothy Theseira
(Low Hop Bing, Syed Ahmad Helmy, Mohamed Apandi Ali JJCA) [2011] 3 CLJ 272 [CA]

CASE OF THE WEEK

LEE HENG MOY v. CHRISTOPHER WONG WAI YEE & ORS

CIVIL PROCEDURE: Contempt of court - Order of committal, application for - Procedural requirements, whether complied with - Whether there was serious breach of O. 52 r. 3(2) Rules of the High Court 1980 - Whether there was substantial miscarriage of justice

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NUMBER	TITLE	DATE COMING INTO FORCE	REPEALING
ACT 720	Malaysia Deposit Insurance Corporation Act 2011	31 December 2010	- Nil -
ACT 721	International Islamic Liquidity Management Corporation Act 2011	25 October 2010	- Nil -
ACT 722	Fees (Malaysian Meteorological Department (Validation) Act 2011	28 January 2011	- Nil -
ACT 723	Price Control And Anti-Profiteering Act 2011	Not Yet In Force	- Nil -
ACT 724	National Visual Arts Development Board Act 2011	Not Yet In Force	- Nil -