Legal Network Series

[2012] 1 LNS 276	ABU BAKAR ISMAIL & ANOR v. ISMAIL HUSIN & ORS	PARTNERSHIP: Liability of partners - Debt - Application for leave to execute judgment against partner in 3rd defendant's firm - Whether Notice of assessment of damages was effected in accordance with the rules on solicitor's firm representing 3rd defendant at the material time - Case was reported in the media - Whether inherently incredible that said partner was unaware of action against his firm - Whether being a partner at the material time, he was clearly liable pursuant to s. 11 of the Partnership Act 1961
[2012] 1 LNS 737	SARGUNAN TANNIMALAI v. ABDUL MUTALIB KAMIS & ANOR	CIVIL PROCEDURE: Appeal - Appeal against decision of sessions court - Dismissal of appellant/plaintiff's claim for damages due to injuries suffered as a result of an accident - Whether session judge erred in fact and in law when concluding that appellant/plaintiff was the author of his own misfortune based on the evidence before him and circumstances - Whether it was a fact proven by appellant/plaintiff that rear lights of front lorry were not switched on to establish contributory negligence on first defendant's part
[2012] 1 LNS 749	PP v. JOHN DONALD ABRAHAM & ANOR	CRIMINAL LAW: Penal Code - s. 300 - Murder - Whether prima facie case established against 1st accused - Whether elements of the charge proven at the close of the prosecution case beyond reasonable doubt CRIMINAL PROCEDURE: Trial - Defence's case - Whether deceased's death was due to injury sustained when his head accidentally knocked against the car jack - Whether fatal slash injury on deceased's head was inflicted by 1st accused and his intention was to kill deceased - Whether 1st accused's explanation failed to cast any reasonable doubt in prosecution's case on any of the elements of the charge - Whether charge against 1st accused proved beyond any reasonable doubt EVIDENCE: Circumstantial evidence - Murder - Whether circumstantial evidence sufficient - Whether strands of circumstantial evidence strong enough to prove that it was 1st accused and no one else who had caused fatal slash injury on deceased's head - Whether all the circumstances put together irresistibly pointed to 1st accused as the person who inflicted the fatal slash injury on deceased's head and that his intention was to cause death
[2012] 1 LNS 751	CHOONG SHENG DEVELOPMENT SDN BHD v. CORAK NAKHODA SDN BHD	CIVIL PROCEDURE: Pleadings - Parties bound by - Material fact of certification of contract payment certificates by defendant not specifically pleaded - Whether merited consideration by the Court - Whether defendant should have full knowledge of such vital fact pertaining to the certification - Whether any reason for defendant to argue that there was no way for them to know what kind of evidence plaintiff would be adducing - Whether fact of the need of certification in contract payment certificates should have been pleaded or an amendment made to defendant's pleadings - Whether permissible for defendant to rely on defence which was never raised in their pleadings CIVIL PROCEDURE: Pleadings - Departure from - Defence - Whether defendant departed from its pleading - Whether material fact of breaches as stated in defence sufficed to give notice to plaintiff of breaches - Whether other details could be adduced through evidence during the trial to substantiate breaches as pleaded - Whether overall pleadings pertaining to breaches departed to such an extent that plaintiff was caught by surprise or unable to know what it had to meet during trial CIVIL PROCEDURE: Trial - Witness - Defendant failed to file and serve witness statements on or before trial despite directions - Witness Statements only tendered when witness was about to testify during the trial - Whether unfair to plaintiff - Plaintiff unable to deny or rebut all details/allegations of breaches which were not put to plaintiff's director - Whether conduct of defendant could lead to an unfair trial which may result in a failure of justice - Whether defence could be construed as an afterthought - Whether defendant's case should fail on this ground EVIDENCE: Cross examination - Failure to put one's case to a witness - Whether defendant's failure to put defence case to plaintiff's sole witness, PW1, should be treated as an abandonment of defence's pleaded case - No valid reason accorded by defendant why it refrained from doing so - Whether defendant should be barred from raising it in submission
[2012] 1 LNS 774	TEKITAL SDN BHD v. SARINA KAMALUDIN & ORS	COMPANY LAW: Shares - Sale of shares - Whether agreement between API and plaintiff whereby plaintiff invested RM1.2 million in AP, was void for contravention of s. 67 of the Companies Act 1965 - No monies were borrowed by plaintiff to purchase shares of API - No question of API dealing in its own shares - Whether s. 67 of the Companies Act 1965, applicable - Whether transaction between plaintiff and API was void TORT: Conspiracy to injure - Intention - Whether 1st, 2nd and 3rd defendants acted with common intention to effect the transfer of assets of API to corporate entities they controlled in the form of 4th, 5th and 6th defendants - Whether plaintiff succeeded in establishing conspiracy by unlawful means - Whether defendants acted in concert in the transfer of subject assets of API to other entities which they too controlled - Whether an agreement existed between them pursuant to which their concerted unlawful actions were taken - Whether plaintiff as an unsecured creditor of API suffered damage and injury as a consequence of unlawful transfer of assets of API to other related entities - Whether plaintiff deprived of benefit of the assets of API diverted to benefit 1st, 2nd and 3rd defendants through 4th, 5th and 6th defendants

CLJ 2014 Volume 2 (Part 7)

COURT

COURT OF APPEAL

Aseambankers Malaysia Bhd & Ors v. Shencourt Sdn Bhd & Anor
Abdul Malik Ishak, Linton Albert, Mohamad Ariff Yusof JJCA
(Banking; Civil Procedure; Contract - Banks and banking business - Loan agreement - Default in repayment) [2014] 2 CLJ 773 [CA]

Nolose Albert Raleshome v. PP
Azahar Mohamed, Rohana Yusuf, Zakaria Sam JJCA
(Evidence; Criminal Law - Expert evidence - Chemist's analysis of substance - Contradictions between chemist report and oral evidence) [2014] 2 CLJ 903 [CA]

PP v. Bayati Heider
Akhtar Tahir J
(Criminal Law - Dangerous Drugs Act 1952 - Section 39B(1)(a) - Trafficking - Intrusive search - Retrieval of drugs from human excretion) [2014] 2 CLJ 915 [HC]

SUBJECT INDEX

BANKING

Banker and customer - Nature of relationship - Whether fiduciary in nature - Whether relationship entirely contractual
Aseambankers Malaysia Bhd & Ors v. Shencourt Sdn Bhd & Anor
(Abdul Malik Ishak, Linton Albert, Mohamad Ariff Yusof JJCA) [2014] 2 CLJ 773 [CA]

Banks and banking business - Loan agreement - Default in repayment - Claim for recovery of loan - Whether borrower could be exempted from liability to repay loan monies to lender - Claim for recovery of loan an entirely separate matter from any claim against lender for damages
Aseambankers Malaysia Bhd & Ors v. Shencourt Sdn Bhd & Anor
(Abdul Malik Ishak, Linton Albert, Mohamad Ariff Yusof JJCA) [2014] 2 CLJ 773 [CA]

Banks and banking business - Loan agreement - Default in repayment - Whether lender has legal obligation to continue to allow borrower to drawdown on loan despite default - Whether lender had wrongfully refused borrower's request for drawdown of facilities - Whether borrower could be exempted from liability to repay loan monies to lender
Aseambankers Malaysia Bhd & Ors v. Shencourt Sdn Bhd & Anor
(Abdul Malik Ishak, Linton Albert, Mohamad Ariff Yusof JJCA) [2014] 2 CLJ 773 [CA]

CIVIL PROCEDURE

Appeal - Appellate intervention - Finding of facts - Intervention justified where there is insufficient judicial appreciation of evidence - Findings do not accord with probabilities of case
Aseambankers Malaysia Bhd & Ors v. Shencourt Sdn Bhd & Anor
(Abdul Malik Ishak, Linton Albert, Mohamad Ariff Yusof JJCA) [2014] 2 CLJ 773 [CA]

Pleadings - Issue not pleaded - Whether court could decide on a cause of action that is not pleaded - Estoppel - Doctrine of - Whether arose
Aseambankers Malaysia Bhd & Ors v. Shencourt Sdn Bhd & Anor
(Abdul Malik Ishak, Linton Albert, Mohamad Ariff Yusof JJCA) [2014] 2 CLJ 773 [CA]

CONTRACT

Damages - Burden of proof - Duty on plaintiff to prove facts and amount of damages
Aseambankers Malaysia Bhd & Ors v. Shencourt Sdn Bhd & Anor
(Abdul Malik Ishak, Linton Albert, Mohamad Ariff Yusof JJCA) [2014] 2 CLJ 773 [CA]

CRIMINAL LAW

Dangerous Drugs Act 1952 - Section 39B(1)(a) - Trafficking - Prima facie case - Whether established - Intrusive search - Retrieval of drugs from human excretion - Whether there was lack of documentary proof - Whether statutory requirements complied with - Inconsistencies of oral evidence - Whether doubt cast on identity of drugs tendered in court - Infirmities found in prosecution's case - Whether accused discharged and acquitted - Criminal Procedure Code, s. 20A, Fourth Schedule ss. 13(1), (2) & 15
PP v. Bayati Heider
(Akhtar Tahir J) [2014] 2 CLJ 915 [HC]

Dangerous Drugs Act 1952 - Section 39B(1)(a) - Trafficking in 707.5g methamphetamine - Appeal against conviction and sentence - Material contradiction between chemist's oral evidence and chemist report - Whether infirmities and poor quality of chemist's evidence fatal to prosecution's case - Whether there was serious misdirection by trial court warranting appellate interference
Nolose Albert Raleshome v. PP
(Azahar Mohamed, Rohana Yusuf, Zakaria Sam JJCA) [2014] 2 CLJ 903 [CA]

EVIDENCE

Expert evidence - Chemist's analysis of substance - Contradictions between chemist report and oral evidence - Homogenisation of substance - Whether substance to be homogenised before or during analysis - Whether irreconcilable conflict in evidence rendered conviction unsafe
Nolose Albert Raleshome v. PP
(Azahar Mohamed, Rohana Yusuf, Zakaria Sam JJCA) [2014] 2 CLJ 903 [CA]

Expert evidence - Chemist report - Chemist report contradicted by chemist's own oral testimony - Whether evidence essential to prove subject matter of charge - Whether infirmities and poor quality of chemist's evidence fatal to prosecution's case
Nolose Albert Raleshome v. PP
(Azahar Mohamed, Rohana Yusuf, Zakaria Sam JJCA) [2014] 2 CLJ 903 [CA]

CLJ 2014 Volume 2 (Part 8)

COURT

SC India

Deepak Gulati v. State of Haryana
DR BS Chauhan, Dipak Misra JJ
(Criminal Law - Rape or consensual sex - Human rights - Psychological and physical harm) [2014] 2 CLJ 925 [SC India]

COURT OF APPEAL

Majlis Agama Islam Dan Adat Melayu Perak Darul Ridzuan v. Mohamed Suffian Ahmad Syazali & Anor
Abdul Aziz Rahim, Mohamad Ariff Yusof, David Wong Dak Wah JJCA
(Jurisdiction - High Court - Termination of respondent as chairman of kariah committee of mosque - Islamic law) [2014] 2 CLJ 940 [CA]

Thivasalim Abdul Majeed v. PP
Balia Yusof Wahi, Mohtarudin Baki, Tengku Maimun JJCA
(Criminal Law; Criminal Procedure - Trafficking in dangerous drugs - Conviction and sentence - Appeal) [2014] 2 CLJ 963 [CA]

HIGH COURT

BMTT Corporation Sdn Bhd v. CBTech (M) Sdn Bhd
Hadhariah Syed Ismail J
(Banking; Contract - Letter of credit - Construction - Frustration - Change in circumstances) [2014] 2 CLJ 980 [HC]

Ngo King Tong v. Great Eastern Life Assurance (Malaysia) Bhd & Anor
Abdul Rahman Sebli J
(Contract; Insurance; Evidence - Agency - Insurance policy – Private arrangement - Failure to call witness) [2014] 2 CLJ 997 [HC]

Pacific Plumbing Construction (M) Sdn Bhd v. AmBank (M) Bhd
Rozana Ali Yusoff JC
(Company Law; Words & Phrases - Winding up - Notice of demand - Companies Act 1965, s. 218(2)(a) - Leave of court - Limitation) [2014] 2 CLJ 1012 [HC]

Sanctuary Court Sdn Bhd v. AEH Capital Sdn Bhd
SM Komathy Suppiah JC
(Contract; Limitation - Breach - Agreement - Accrual of cause of action) [2014] 2 CLJ 1020 [HC]

Yap Chee Hean v. Public Investment Bank Bhd
Nallini Pathmanathan J
(Securities; Contract - Shares - Trading account - Misuse of monies in account) [2014] 2 CLJ 1036 [HC]

SUBJECT INDEX

BANKING

Letter of credit - Construction - Parties entered into contract for sale and purchase of equipment - Letter of credit required signed commercial invoices and delivery order - Defendant's failure to provide required documents to complete delivery of equipment - Terms and condition of contract - Defendant's refusal to check equipment and to provide required documents - Whether justified - Whether contract breached
BMTT Corporation Sdn Bhd v. CBTech (M) Sdn Bhd
(Hadhariah Syed Ismail J) [2014] 2 CLJ 980 [HC]

COMPANY LAW

Winding up - Notice of demand - Issuance of - Companies Act 1965, s. 218(2)(a) - Judgment creditor did not enforce judgment against judgment debtor - Notice issued after six years from date of judgment - Failure to obtain leave of court - Whether notice valid - Whether winding up proceeding fell within ambit and meaning of "execution" as provided under O. 46 r. 2 Rules of Court 2012 - Whether leave of court necessary - Whether issuance of notice fell within limitation period of 12 years - Limitation Act 1953, s. 6(3)
Pacific Plumbing Construction (M) Sdn Bhd v. AmBank (M) Bhd
(Rozana Ali Yusoff JC) [2014] 2 CLJ 1012 [HC]

CONTRACT

Acceptance - Signature - Plaintiff signed insurance policy forms - Details subsequently filled by agent - Whether plaintiff bound by terms upon signing - Whether there was agreement between plaintiff and agent to name five different individuals as beneficiaries - Whether plaintiff bound to pay premiums
Ngo King Tong v. Great Eastern Life Assurance (Malaysia) Bhd & Anor
(Abdul Rahman Sebli J) [2014] 2 CLJ 997 [HC]

Agency - Insurance premiums collected by agent - Claim for - Names of policy holders fraudulently filled by agent - Whether plaintiff lacked locus standi to seek declaration for insurance policies to be void - Whether plaintiff consented to five individuals being named as policy holders - Whether plaintiff bound to pay premiums
Ngo King Tong v. Great Eastern Life Assurance (Malaysia) Bhd & Anor
(Abdul Rahman Sebli J) [2014] 2 CLJ 997 [HC]

Breach - Agreement - Claim for refund of monies paid - Default by plaintiff to settle outstanding sum due - Terms in agreement - Defendant's option vide cl. 9 to either terminate agreement or apply for specific performance - Failure to exercise option - Whether defendant's non-exercise of its remedy constitutes a default or breach of cl. 9 - Whether claim barred by limitation, laches and/or acquiescence - Whether there was undue delay in instituting action
Sanctuary Court Sdn Bhd v. AEH Capital Sdn Bhd
(SM Komathy Suppiah JC) [2014] 2 CLJ 1020 [HC]

Breach - Trading in shares - Misuse of monies in account - Principal and agent - Whether principal liable for agent's conduct - Whether liability for breach of contract arose from Standard Remisier's Agreement - Whether alternative liability in tort or breach of trust available
Yap Chee Hean v. Public Investment Bank Bhd
(Nallini Pathmanathan J) [2014] 2 CLJ 1036 [HC]

Frustration - Change in circumstances - Parties entered into contract for sale and purchase of equipment - Defendant's failure to provide required documents to complete delivery of equipment - Allegation that defendant's client had changed system - Whether contract frustrated
BMTT Corporation Sdn Bhd v. CBTech (M) Sdn Bhd
(Hadhariah Syed Ismail J) [2014] 2 CLJ 980 [HC]

CRIMINAL LAW

Crimes against Women and Children - Rape - Violates human rights of victim - Causes psychological and physical harm - Degrades and defiles victim's soul, honour and dignity and leaves a permanent scar on life - It is a crime against society - Victim cannot be called an accomplice or injured witness - Constitution of India - Art. 21 - Penal Code, 1860, ss. 375 and 376
Deepak Gulati v. State of Haryana
(DR BS Chauhan, Dipak Misra JJ) [2014] 2 CLJ 925 [SC India]

Dangerous Drugs Act 1952 - Section 39B(1)(a) - Trafficking in dangerous drugs - Conviction and sentence - Appeal against - Drugs found in car driven by appellant but rented by another individual - Whether duty of prosecution to exclude possibility of other individuals as not having access to car or drugs - DNA found on items recovered from car - Whether originated from different sources - Whether exculpated appellant and incriminated other individuals - Admission of statement recorded under s. 112 Criminal Procedure Code - Whether conditions satisfied - Evidence Act 1950, s. 32 - Whether there were gaps in prosecution's case - Whether possession of drugs proved
Thivasalim Abdul Majeed v. PP
(Balia Yusof Wahi, Mohtarudin Baki, Tengku Maimun JJCA) [2014] 2 CLJ 963 [CA]

Penal Code, 1860 - Sections 375, 376 and 417 r/w s. 90 and s. 365 - Rape or consensual sex - "Consent" - Meaning - Consent under misconception of fact - Sexual indulgence by accused with victim's consent given under misconception of fact, held, falls within ambit of rape - Provided facts concerned have immediate relevance - Consent obtained from victim by making false promise of marriage amounts to cheating or deception which leads to misconception of fact - But distinction should be made between not fulfilling false promise by accused and mere breach of promise occurring due to circumstances beyond his control - Court must be assured that accused from the very beginning acted with mala fide intention of seducing prosecutrix by making false promise of marriage and not keeping his promise - Mere breach of promise without mala fide intention cannot amount to deception - Prosecutrix aged 19 yrs, gave her consent in lieu of promise made by accused of marrying her and willingly submitted to sexual acts with accused despite being capable of fully understanding significance and morality associated with such acts and being conscious that marriage may not take place for various factors - Hence, held, though there was no evidence showing that accused never intended to marry her, merely because accused could not keep his promise on account of unavoidable circumstances, prosecutrix cannot be said to have given her consent under misconception of fact arising from any false promise of marriage - Hence accused cannot be convicted for committing rape - Words and Phrases - "Consent", "misconception of fact", "fraud"
Deepak Gulati v. State of Haryana
(DR BS Chauhan, Dipak Misra JJ) [2014] 2 CLJ 925 [SC India]

CRIMINAL PROCEDURE

Appeal - Appeal against conviction and sentence - Trafficking in dangerous drugs - Allegation of - Drugs found in car driven by appellant but rented by another individual - Whether duty of prosecution to exclude possibility of other individuals as not having access to car or drugs - DNA found on items recovered from car - Whether originated from different sources - Whether exculpated appellant and incriminated other individuals - Admission of statement recorded under s. 112 Criminal Procedure Code - Whether conditions satisfied - Evidence Act 1950, s. 32 - Whether there were gaps in prosecution's case - Whether possession of drugs proved - Whether appeal allowed
Thivasalim Abdul Majeed v. PP
(Balia Yusof Wahi, Mohtarudin Baki, Tengku Maimun JJCA) [2014] 2 CLJ 963 [CA]

EVIDENCE

Adverse inference - Failure to call witness - Insurance policy - Failure to call agent as witness to prove existence of private arrangement - Whether evidence unfavourable to insurer - Whether out of court statement of private arrangement hearsay - Whether should be disregarded - Evidence Act 1950, s. 114(g)
Ngo King Tong v. Great Eastern Life Assurance (Malaysia) Bhd & Anor
(Abdul Rahman Sebli J) [2014] 2 CLJ 997 [HC]

INSURANCE

Agents - Collection of premiums by agent - Private arrangement to pay via credit card - Whether agent acted outside scope of authority - Duty of care - Whether insurer liable
Ngo King Tong v. Great Eastern Life Assurance (Malaysia) Bhd & Anor
(Abdul Rahman Sebli J) [2014] 2 CLJ 997 [HC]

JURISDICTION

High Court - Termination of respondent as chairman of kariah committee of mosque - Whether dispute concerned matter within jurisdiction of High Court - Whether dispute concerned application of Islamic law - Whether Syariah Court had jurisdiction to decide matter - Whether action should have been commenced by way of judicial review - Whether case involved public law elements - Rules of the High Court 1980, O. 53
Majlis Agama Islam Dan Adat Melayu Perak Darul Ridzuan v. Mohamed Suffian Ahmad Syazali & Anor
(Abdul Aziz Rahim, Mohamad Ariff Yusof, David Wong Dak Wah JJCA) [2014] 2 CLJ 940 [CA]

LIMITATION

Contract - Accrual of cause of action - Refund of monies paid - Defendant's failure to exercise option in agreement - Whether plaintiff's cause of action crystallised upon termination of agreement - Whether claim barred by limitation, laches and/or acquiescence
Sanctuary Court Sdn Bhd v. AEH Capital Sdn Bhd
(SM Komathy Suppiah JC) [2014] 2 CLJ 1020 [HC]

SECURITIES

Shares - Trading account - Misuse of monies in account - Dealer's representative - Whether dealer's representative an agent of defendant - Whether defendant liable for fraudulent acts committed by its agent - Whether plaintiff could claim monies in defendant's general collection account
Yap Chee Hean v. Public Investment Bank Bhd
(Nallini Pathmanathan J) [2014] 2 CLJ 1036 [HC]

WORDS & PHRASES

"execution proceedings" - Meaning of - Whether winding up proceeding fell within ambit and meaning of "execution" as provided under O. 46 r. 2 Rules of Court 2012
Pacific Plumbing Construction (M) Sdn Bhd v. AmBank (M) Bhd
(Rozana Ali Yusoff JC) [2014] 2 CLJ 1012 [HC]