GURBACHAN SINGH BAGAWAN SINGH & ANOR v. VELLASAMY PENNUSAMY & ORS AND OTHER APPLICATIONS
FEDERAL COURT, PUTRAJAYA
RAUS SHARIF PCA, AHMAD MAAROP FCJ, HASAN LAH FCJ
[FEDERAL COURT REVIEW APPLICATIONs NO: 08-245-2010(A), 08-325-2010(A), 08-463-2010(A) & 08-104-2011(A)]
18 JANUARY 2012

COURTS: Federal Court - Panel, constitution of - Whether duty bound to sit with a minimum of three judges - Chairman of panel momentarily left panel - Proceeding continued by two remaining members - Effect of - Whether there was no duly constituted court in law - Whether constituting a corum failure - Courts of Judicature Act 1964, s. 74

JURISDICTION: Federal Court - Inherent powers - Power to review own decision - Applications for leave to appeal - Applications heard by two members of panel, albeit momentarily - Whether there was no duly constituted court in law - Whether there was a corum failure - Whether decision liable to be reviewed - Rules of the Federal Court 1995, r. 137 - Courts of Judicature Act 1964, s. 74

Legal Network Series

1	[2009] 1 LNS 1423	PP v. Anuar Isa Khan @ Mohamad Rizal Abdullah	CRIMINAL PROCEDURE: Prosecution - Prima facie case - Eye witnesses identified accused as one who fired shots at victim resulting in his death - Gunshot wound to chest cause of death - Whether a prima facie case made out against accused CRIMINAL PROCEDURE: Defence - Mistaken identity - Accused maintained it was Balakrishnan who fired shots that killed victim - Similarity between accused and Balakrishnan -Whether accused was the one who fired pistol at victim causing his death - Whether a reasonable doubt raised as to accused's guilt on the charge of murder EVIDENCE: Identification evidence - Accused identified - Description by eye-witnesses and dock identification - Failure of prosecution to produce photographs of other suspects to the eye-witnesses - Whether doubt created as to whether eye-witnesses would have identified accused with such certainty had they been given opportunity of sighting other suspects EVIDENCE: Adverse inference - Evidence Act 1950, s. 114(g) - Failure of prosecution to call material witnesses - Other suspects arrested with accused not called as witnesses - No explanation why other suspects not charged - Whether adverse inference should be drawn against prosecution's case
2	[2009] 1 LNS 1427	Kuan Pek Seng v. Chin Foh Berhad & Ors	COMPANIES AND CORPORATIONS: Derivative action - Striking out of - Whether plaintiff complied with requirements for a derivative action COMPANIES AND CORPORATIONS: Derivative action - Striking out of - Fraud on minority - Whether plaintiff fell within the fraud on minority exception to the rule in Foss v. Harbottle - Whether plaintiff had locus standi to bring this action COMPANIES AND CORPORATIONS: Derivative action - Striking out of - Loss caused to the company by acts complained of by plaintiff - Whether loss could only be determined after consideration of entire evidence at trial - Whether not a proper case for striking out
3	[2009] 1 LNS 1442	Retnam Suppan v. Kamala Ponnampalam	FAMILY LAW: Matrimonial property - Respondent's wife claim to matrimonial home - Whether wife made any contributions towards matrimonial home - Wife looking after home for 10 years they were together and caring for family - Determination of fair proportion to be given to wife for services rendered to welfare of family - Husband derelict in his duty to pay maintenance - Whether order for payment of a sum of money unsuitable - Whether sale of matrimonial home should be ordered and a portion of sale proceeds given to wife
4	[2009] 1 LNS 1444	Re: Mohd Taufic Ozier; Ex Parte: Hatchery Sdn Bhd	BANKRUPTCY: Notice - Setting aside - Appeal against dismissal of judgment debtor's application to set aside - Whether request for issue of bankruptcy notice defective - Judgment creditor's solicitors signed request for issue of bankruptcy notice on behalf of judgment creditor - Whether contravened s. 133 of the Bankruptcy Act 1967 and/or Rule 215 of the Bankruptcy Rules 1969 - Whether request for issue of bankruptcy notice valid BANKRUPTCY: Notice - Setting aside - Validity of - Whether bankruptcy proceedings against judgment debtor null and void as judgment not served on him - Whether there was good and effective notice to judgment debtor through his solicitors on record - Whether judgment required to be served by judgment creditor on judgment debtor prior to institution of bankruptcy proceedings
5	[2011] 1 LNS 95	Eastren Petroleum Sdn Bhd v. Base Aktiengesellschaft & Ors	ARBITRATION: Arbitration clause - Existence of - Clause 5.5 of the Supply and Loan Contract (SLC) - Debenture executed as security - Whether SLC and debenture two separate agreements - Whether clauses 24 and 29 of debenture together or separately, displaced or superseded clause 5.5 of SLC - Whether arbitration clause in SLC still operative and binding on plaintiff CONTRACT: Construction of terms - Debenture - Clause 24 related to submission to jurisdiction of Malaysian courts and applicability of Malaysian laws - Whether limited to matters arising from debenture only - Clause 29 pertained to incorporation of SLC - Opening words of clause 29 'For the purposes of this Debenture' - Whether restricted to operations or enforcement of debenture itself CIVIL PROCEDURE: Injunction - Application for - Injunction to restrain 2nd and 3rd defendants from carrying out their duties as receivers under debenture - Dependent only on whether there was a valid arbitration clause applicable - Unexplained delay by plaintiff - Whether plaintiff had any "serious issue" to be tried - Whether damages would not be adequate remedy to plaintiff - Whether plaintiff should be granted restraining orders applied for

CLJ Volume 2 (Part 4) 2012

COURT

COURT APPEAL

Gan Chong Guan Transport Sdn Bhd v. Ketua Pengarah Jabatan Pengangkutan Jalan Malaysia & Ors
Jeffrey Tan, Balia Yusof Wahi, Alizatul Khair JJCA
(Administrative Law; Road Traffic - Remedies - Enforcement of public duties - Compensation - Claim for - General and special damages) [2012] 2 CLJ 389 [CA]

HIGH COURT

Andawan Ansapi & Ors v. PP
David Wong Dak Wah J
(Criminal Law; Native Law And Custom - Native customary rights - Authority to occupy land - Whether native customary rights could not be claimed in a Forest Reserve) [2012] 2 CLJ 405 [HC]

Bina Puri Ventures Sdn Bhd v. Lee Poh Heng & Another Case
Lee Swee Seng JC
(Company Law - Transfer of shares - Charging order) [2012] 2 CLJ 417 [HC]

Kiara Emas Asia Industries Bhd v. Tetuan Wong-Chooi & Mohd Nor
Ahmad Nasfy Yasin JC
(Company Law; Legal Profession; Securities - Suit by company - Duty of care - Negligence - Claim against solicitor advising company for listing purposes) [2012] 2 CLJ 438 [HC]

Lee Ah Lin v. Lee Choon Ket & Ors
Hamid Sultan Abu Backer J
(Company Law - Oppression - Relief - Petition under s. 181 Companies Act 1965) [2012] 2 CLJ 458 [HC]

Levi Strauss (Malaysia) Sdn Bhd v. Ketua Pengarah Kastam, Malaysia
Mohd Zawawi Salleh J
(Customs And Excise - Customs duty - Valuation of goods - Royalties) [2012] 2 CLJ 476 [HC]

Seri Mukali Sdn Bhd v. Kertih Port Sdn Bhd
Abang Iskandar J
(Contract - Termination - Wrongful termination) [2012] 2 CLJ 488 [HC]

SUBJECT INDEX

ADMINISTRATIVE LAW

Remedies - Enforcement of public duties - Claim for declaratory/mandatory order for rectification of registration certificate of vehicle - Whether claim against public authorities - Whether dispute has substantive principles of public law - Whether dispute suitable for judicial review - Whether prayers should not have been struck out on the ground of non-compliance of O. 53, Rules of the High Court 1980
Gan Chong Guan Transport Sdn Bhd v. Ketua Pengarah Jabatan Pengangkutan Jalan Malaysia & Ors
(Jeffrey Tan, Balia Yusof Wahi, Alizatul Khair JJCA) [2012] 2 CLJ 389 [CA]

COMPANY LAW

Oppression - Relief - Petition under s. 181 Companies Act 1965 - Whether petition could be maintained when companies had been wound up - Whether petition could be filed against two or more companies - Henrick International Hotels & Resorts Pte Ltd v. YTL Hotels & Properties Sdn Bhd & Ors
Lee Ah Lin v. Lee Choon Ket & Ors
(Hamid Sultan Abu Backer J) [2012] 2 CLJ 458 [HC]

Transfer of shares - Challenge to validity of transfer - Charging order - Charging order nisi obtained against shares of judgment debtor - Shares transferred out by backdating Form 32A and Board's circular - Legality of transfer - Beneficial interest in shares - Companies Act 1965, ss. 103(1), 158(4), 169(6), 171
Bina Puri Ventures Sdn Bhd v. Lee Poh Heng & Another Case
(Lee Swee Seng JC) [2012] 2 CLJ 417 [HC]

Suit by company - Negligence claim against solicitor advising company for listing purposes - Non-disclosure of material particulars in prospectus done in listing process - Liability - Whether solicitors engaged in listing exercise or directors of company responsible for issuing prospectus - Whether company suffered losses from relying on defective prospectus - Whether company proper party to sue solicitor - Whether cause of action established against solicitors - Whether causal link established between alleged negligence and losses - Companies Act 1965, ss. 42, 46(2) - Securities Commission Act 1993, s. 57
Kiara Emas Asia Industries Bhd v. Tetuan Wong-Chooi & Mohd Nor
(Ahmad Nasfy Yasin JC) [2012] 2 CLJ 438 [HC]

CONTRACT

Termination - Wrongful termination - Failure by plaintiff to deliver tugboats as per terms of Letter of Award - Whether defendant entitled to terminate agreement
Seri Mukali Sdn Bhd v. Kertih Port Sdn Bhd
(Abang Iskandar J) [2012] 2 CLJ 488 [HC]

Time - No time clause in agreement - Whether contract to be fulfilled within reasonable time frame - Whether delay reasonable - Whether termination of contract by reason of delay justified
Seri Mukali Sdn Bhd v. Kertih Port Sdn Bhd
(Abang Iskandar J) [2012] 2 CLJ 488 [HC]

CRIMINAL LAW

Forest Enactment 1968 (Sabah) - Sections 20(1)(b)(iii) & 20(1)(c)(i) - Cultivating land within Forest Reserve without authority - Appellants natives of Sabah - Whether could claim native customary rights in respect of land in Forest Reserve - Whether offence not proved - Whether to be acquitted and discharged
Andawan Ansapi & Ors v. PP
(David Wong Dak Wah J) [2012] 2 CLJ 405 [HC]

CUSTOMS AND EXCISE

Customs duty - Valuation of goods - Calculation of sales and customs duties payable - Whether additional royalty charged to transaction value of imported goods - Whether royalty and purchase price of products purchased by applicant separate and independent transactions - Customs (Rules of Valuation) Regulations 1999, reg. 5
Levi Strauss (Malaysia) Sdn Bhd v. Ketua Pengarah Kastam, Malaysia
(Mohd Zawawi Salleh J) [2012] 2 CLJ 476 [HC]

Customs duty - Valuation of goods - Royalties - Whether additional royalty could be charged to the transaction value of imported goods - Whether royalty and purchase price of products purchased by applicant separate and independent transactions - Customs (Rules of Valuation) Regulations 1999, reg. 5
Levi Strauss (Malaysia) Sdn Bhd v. Ketua Pengarah Kastam, Malaysia
(Mohd Zawawi Salleh J) [2012] 2 CLJ 476 [HC]

LEGAL PROFESSION

Duty of care - Negligence - Claim against solicitor advising company for listing purposes - Scope of solicitor's duty advising company in listing exercise - Whether duty pertained to legal expertise only - Companies Act 1965, ss. 42, 46(2) - Securities Commission Act 1993, s. 57
Kiara Emas Asia Industries Bhd v. Tetuan Wong-Chooi & Mohd Nor
(Ahmad Nasfy Yasin JC) [2012] 2 CLJ 438 [HC]

NATIVE LAW AND CUSTOM

Native customary rights - Authority to occupy land - Whether native customary rights could not be claimed in a Forest Reserve - Whether legislation has neither abolished nor extinguished native customary rights - Whether appellants gave unrebutted evidence on their claim for native customary rights - Whether 'native customary rights' equates to 'right to life' - Federal Constitution, art. 5
Andawan Ansapi & Ors v. PP
(David Wong Dak Wah J) [2012] 2 CLJ 405 [HC]

ROAD TRAFFIC

Compensation - Claim for - General and special damages - Number of chassis of vehicle different from that of certificate of registration - Whether there was a failure to detect the mistake at the point of registration of vehicle - Whether fifth respondent had a duty to verify all information correct - Whether fifth respondent failed to carry out its obligations that caused foreseeable loss to appellant - Whether first and second respondents liable for any failure by fifth respondent to carry out its obligations - Road Transport Act 1987, s. 126 - Quantum of damages - Whether to be assessed
Gan Chong Guan Transport Sdn Bhd v. Ketua Pengarah Jabatan Pengangkutan Jalan Malaysia & Ors
(Jeffrey Tan, Balia Yusof Wahi, Alizatul Khair JJCA) [2012] 2 CLJ 389 [CA]

SECURITIES

Securities legislation - Listing requirements - Non-disclosure of material particulars in prospectus issued in listing process - Liability - Whether solicitors engaged in listing exercise or directors of company responsible for issuing prospectus - Whether company suffered losses from relying on defective prospectus - Whether company proper party to sue solicitors - Whether cause of action established against solicitors - Whether causal link established between alleged negligence and losses - Companies Act 1965, ss. 42, 46(2) - Securities Commission Act 1993, s. 57 - KLSE Listing Requirements (2nd Board), ss. 7.40, 7.46, 7.48
Kiara Emas Asia Industries Bhd v. Tetuan Wong-Chooi & Mohd Nor
(Ahmad Nasfy Yasin JC) [2012] 2 CLJ 438 [HC]

Legal Network Series Articles

Preimplantation Genetic Diagnosis For Social Sex Selection (PGD For SSS): The Slippery Slope To 'Designer Baby'?^{[Read excerpt]}

By: Dr. Haniwarda Yaakob [2012] 1 LNS(A) xxii

Principal Acts

Amending Acts

PU(A)

PU(B)