Bulletin_15

CLJ Bulletin, Issue 2011, Vol 15

22 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 4) 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 1 April 2011 [PU(B) 146/2011] - 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) 102/2011 Approved Laboratory Order 2011 31 March 2011 ACT 281

PU(A) 104/2011 Customs (Values) (Palm Kernel) (No 4) Order 2011 1 April 2011 ACT 235

PU(A) 105/2011 Customs (Values) (Palm Oil) (No 14) Order 2011 4 April 2011 ACT 235

PU(A) 106/2011 Workmens Compensation (Foreign Workers Compensation Scheme) (Insurance) (Amendment) Order 2011 7 April 2011 ACT 273

PU(A) 107/2011 Customs (Values) (Crude Petroleum Oil) (No 7) Order 2011 7 April 2011 ACT 235

PU(B)

NUMBER TITLE DATE COMING INTO FORCE
PRINCIPAL ACT NO

PU(B) 143/2011 Reservation Of Land For Public Purpose - Federal Territory Of Kuala Lumpur: Mukim - Kuala Lumpur 31 March 2011 ACT 56/1965

PU(B) 144/2011 Reservation Of Land For Public Purpose - Federal Territory Of Kuala Lumpur: Mukim - Kuala Lumpur 31 March 2011 ACT 56/1965

PU(B) 145/2011 Appointment Of Date Of Coming Into Operation 31 March 2011 ACT 663

PU(B) 146/2011 Appointment Of Date Of Coming Into Operation 31 March 2011 ACT 723

PU(B) 147/2011 List Of Licensed Insurers 31 March 2011 ACT 553

2. Articles

a) Legal Network Series Articles

1. Family Justice At The Crossroads* ^{[Read
excerpt]}
By Sir Mark Potter, President Of The Family Division

2. Sui Generis Protection For Non Original Database* ^{[Read
excerpt]}
By Nazura Abdul Manap

3. Latest Cases

a) Legal Network Series

CITATION TITLE SUBJECT

[2009] 1 LNS 622 [HC] Magnificient Diagraph Sdn Bhd v. JWC Ariatektura Sdn Bhd

ARBITRATION: Arbitral tribunal - Jurisdiction - Defendant contending plaintiff bound to bear arbitrator's fees pending final award - Arbitration proceedings suspended pending court's determination on issue of fees - Costs and fees not stated in agreement - No agreement on issue of fees prior to appointment of arbitrator - Whether Arbitration Act 2005, s. 44 applicable - Whether jurisdiction to determine costs vests with arbitrator

[2009] 1 LNS 623 [HC] Zara Sdn Bhd v. The Minister Of Finance State Of Sabah; The Board Of Trustees Of The Sabah Foundation & Anor (Proposed Intervener)
CIVIL PROCEDURE: Intervener - Legal interest - Whether interveners proper persons to be heard within Rules of the High Court 1980, O. 53 r. 8(1) - Interveners' application based on proprietary claim of RM6,579,305.22 in Suit No. K21-27 of 2008 comprising substantial part of certified judgment sum - Claim unproven in court - No pre-existing legal right over certified judgment sum - Whether interveners "persons directly affected by the application" within the meaning of Rules of the High Court 1980, O. 53 r. 4(2)

[2009] 1 LNS 625 [HC] Yong Chee Ling v. Sin Hup Hock Agencies & Trading Sdn Bhd & Ors

TORT: Malicious prosecution - Want of reasonable and probable cause - Police report lodged by 2^nd defendant on behalf of 1^st defendant company - Allegation of breach of trust - Criminal charge against plaintiff dismissed by Sessions Court - Whether 2^nd defendant had reasonable and probable cause to believe in guilt of plaintiff before lodging police report - Public Prosecutor's discretion to set criminal prosecution in motion - Whether defendants liable for malicious prosecution

TORT: Defamation - Libel - Qualified privilege - Police report lodged by 2^nd defendant on behalf of 1^st defendant company - Whether defamatory - Whether defence of qualified privilege available to defendants - Whether police report lodged without basis - Allegations made by 2^nd defendant as a director of 1^st defendant - Proper party to be held liable for libel

[2009] 1 LNS 626 [HC] Mohamad Hamzah Mohamad Nazam v. PP

CRIMINAL PROCEDURE: Sentence - Appeal against sentence - Guilty plea on 2 separate charges for robbery - Sentences ordered to run consecutively - Whether credit ought to have been given for guilty plea - Consideration of public interest - 2 offences committed within same day - Rampancy of offence - Appellant's mitigation devoid of extenuating circumstances - Whether sentences excessive

[2009] 1 LNS 947 [HC] Dato' Vijay Kumar Natarajan v. Choy Kok Mun

TORT: Breach of confidence - Confidential information - 'Necessary quality of confidence' - Whether information plaintiff required defendant to keep confidential possessed such inherent quality of confidentiality - Mere agreement to keep information confidential does not give rise to duty of confidence - Plaintiff's reason for requiring information to be kept confidential, whether reasonable and rational - No right of confidence in iniquity - Nature of relationship between plaintiff and defendant - Whether there was invasion of privacy - Tortious liability as opposed to contractual obligation - Plaintiff's pleadings lacking in material particulars

CITATION	TITLE	SUBJECT
[2009] 1 LNS 622 [HC]	Magnificient Diagraph Sdn Bhd v. JWC Ariatektura Sdn Bhd	ARBITRATION: Arbitral tribunal - Jurisdiction - Defendant contending plaintiff bound to bear arbitrator's fees pending final award - Arbitration proceedings suspended pending court's determination on issue of fees - Costs and fees not stated in agreement - No agreement on issue of fees prior to appointment of arbitrator - Whether Arbitration Act 2005, s. 44 applicable - Whether jurisdiction to determine costs vests with arbitrator
[2009] 1 LNS 623 [HC]	Zara Sdn Bhd v. The Minister Of Finance State Of Sabah; The Board Of Trustees Of The Sabah Foundation & Anor (Proposed Intervener)	CIVIL PROCEDURE: Intervener - Legal interest - Whether interveners proper persons to be heard within Rules of the High Court 1980, O. 53 r. 8(1) - Interveners' application based on proprietary claim of RM6,579,305.22 in Suit No. K21-27 of 2008 comprising substantial part of certified judgment sum - Claim unproven in court - No pre-existing legal right over certified judgment sum - Whether interveners "persons directly affected by the application" within the meaning of Rules of the High Court 1980, O. 53 r. 4(2)
[2009] 1 LNS 625 [HC]	Yong Chee Ling v. Sin Hup Hock Agencies & Trading Sdn Bhd & Ors	TORT: Malicious prosecution - Want of reasonable and probable cause - Police report lodged by 2^nd defendant on behalf of 1^st defendant company - Allegation of breach of trust - Criminal charge against plaintiff dismissed by Sessions Court - Whether 2^nd defendant had reasonable and probable cause to believe in guilt of plaintiff before lodging police report - Public Prosecutor's discretion to set criminal prosecution in motion - Whether defendants liable for malicious prosecution TORT: Defamation - Libel - Qualified privilege - Police report lodged by 2^nd defendant on behalf of 1^st defendant company - Whether defamatory - Whether defence of qualified privilege available to defendants - Whether police report lodged without basis - Allegations made by 2^nd defendant as a director of 1^st defendant - Proper party to be held liable for libel
[2009] 1 LNS 626 [HC]	Mohamad Hamzah Mohamad Nazam v. PP	CRIMINAL PROCEDURE: Sentence - Appeal against sentence - Guilty plea on 2 separate charges for robbery - Sentences ordered to run consecutively - Whether credit ought to have been given for guilty plea - Consideration of public interest - 2 offences committed within same day - Rampancy of offence - Appellant's mitigation devoid of extenuating circumstances - Whether sentences excessive
[2009] 1 LNS 947 [HC]	Dato' Vijay Kumar Natarajan v. Choy Kok Mun	TORT: Breach of confidence - Confidential information - 'Necessary quality of confidence' - Whether information plaintiff required defendant to keep confidential possessed such inherent quality of confidentiality - Mere agreement to keep information confidential does not give rise to duty of confidence - Plaintiff's reason for requiring information to be kept confidential, whether reasonable and rational - No right of confidence in iniquity - Nature of relationship between plaintiff and defendant - Whether there was invasion of privacy - Tortious liability as opposed to contractual obligation - Plaintiff's pleadings lacking in material particulars

b. CLJ Volume 3 (Part 4) 2011

COURT

FEDERAL COURT

Teuku Nawardin Syamsuar v. PP
Richard Malanjum CJ (Sabah & Sarawak), Mohd Ghazali Yusoff, Heliliah Mohd Yusof FCJJ
(Criminal Law - Dangerous Drugs Act 1952 - Section 39B(1)(a) - Drug trafficking) [2011] 3 CLJ 353 [FC]

COURT OF APPEAL

Chan Soon Guan & Anor v. Ismail Hj Adnan
KN Segara, Abu Samah Nordin, Hishamudin Mohd Yunus JJCA
(Limitation; Civil Procedure - Land, recovery of - Cause of action - Whether time barred) [2011] 3 CLJ 366 [CA]

Lee Heng Moy v. Christopher Wong Wai Yee & Ors
Abdul Malik Ishak, Sulong Matjeraie, Ramly Ali JJCA
(Civil Procedure - Contempt of court - Order of committal, application for) [2011] 3 CLJ 372 [CA]

Wong Vui Chin v. PP
Tengku Baharudin Shah, Jeffrey Tan, T Selventhiranathan JJCA
(Criminal Law - Dangerous Drugs Act 1952 - Section 37(d), (da)) [2011] 3 CLJ 383 [CA]

HIGH COURT

Hong Teng Yong v. Khaw Kim Seng & Anor
Choong Siew Khim JC
(Road Traffic; Damages - Negligence - Road accident - Liability - Medical expenses) [2011] 3 CLJ 401 [HC]

In Re Gan Eng San; ex p HSBC Bank Malaysia Bhd
Mah Weng Kwai JC
(Bankruptcy - Adjudication and receiving orders - Setting aside) [2011] 3 CLJ 409 [HC]

Master Brisbane Itang v. Robinson Lee & Ors
Linton Albert J
(Civil Procedure - Transfer of proceedings - Application for - Transfer from Sessions Court to High Court) [2011] 3 CLJ 419 [HC]

PP v. Muhammad Rasid Hashim
Abang Iskandar J
(Criminal Law; Evidence - Penal Code - Sections 302 and 376 - Murder and rape - Circumstantial evidence - Fingerprint evidence) [2011] 3 CLJ 424 [HC]

SUBJECT INDEX

BANKRUPTCY

Adjudication and receiving orders - Setting aside - Whether grant of AO/RO premature - Whether an act of bankruptcy was committed by judgment debtor - Whether creditor's petition properly filed - Bankruptcy notice - Whether valid - Whether judgment debtor able to pay debt within meaning of s. 6(3) Bankruptcy Act 1967 - Whether AO/RO ought to be annulled
In Re Gan Eng San; ex p HSBC Bank Malaysia Bhd
(Mah Weng Kwai JC) [2011] 3 CLJ 409 [HC]

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
Lee Heng Moy v. Christopher Wong Wai Yee & Ors
(Abdul Malik Ishak, Sulong Matjeraie, Ramly Ali JJCA) [2011] 3 CLJ 372 [CA]

Limitation - Cause of action - When cause of action commenced - Whether caught by statutory limitation for actions based on contract - Limitation Act 1953, s. 6
Chan Soon Guan & Anor v. Ismail Hj Adnan
(KN Segara, Abu Samah Nordin, Hishamudin Mohd Yunus JJCA) [2011] 3 CLJ 366 [CA]

Transfer of proceedings - Application for - Transfer from Sessions Court to High Court - Plaintiff's claim beyond RM250,000 limit of civil jurisdiction of Sessions Court - Subordinate Courts Act 1948, s. 66(2) - Whether applicable - Whether application allowed
Master Brisbane Itang v. Robinson Lee & Ors
(Linton Albert J) [2011] 3 CLJ 419 [HC]

CRIMINAL LAW

Dangerous Drugs Act 1952 - Section 37(d), (da) - Double presumptions - Whether rule against double presumption offended - Failure or miscarriage of justice occurred - Whether sufficient evidence to warrant conviction
Wong Vui Chin v. PP
(Tengku Baharudin Shah, Jeffrey Tan, T Selventhiranathan JJCA) [2011] 3 CLJ 383 [CA]

Dangerous Drugs Act 1952 - Section 39B - Trafficking in 147.94 grammes of methamphetamine - Appeal against - Whether invoking of double presumption invoked under ss. 37(d) and 37(da) led to miscarriage of justice - Whether physical and mental elements of possession established - Whether appellant's conduct/demeanour consistent with knowledge of drugs - Whether absence of forensic evidence rendered conviction unsafe - Whether presumption of trafficking properly invoked - Whether sampling of less than 10% of total weight of drugs prevented invocation of presumption of trafficking
Wong Vui Chin v. PP
(Tengku Baharudin Shah, Jeffrey Tan, T Selventhiranathan JJCA) [2011] 3 CLJ 383 [CA]

Dangerous Drugs Act 1952 - Section 39B(1)(a) - Drug trafficking - Appeal against conviction and sentence - Whether there were gaps arising out of contradictions in prosecution's evidence - Whether defence raised doubts on prosecution's case
Teuku Nawardin Syamsuar v. PP
(Richard Malanjum CJ (Sabah & Sarawak), Mohd Ghazali Yusoff Heliliah Mohd Yusof FCJJ) [2011] 3 CLJ 353 [FC]

Penal Code - Sections 302 and 376 - Murder and rape - Circumstantial evidence - Deceased raped and murdered - Whether prosecution established prima facie case - Whether defence raised reasonable doubt - Whether circumstantial evidence suggested or lent support to inference of guilt - Keys to deceased apartment found on accused - Accused trying to escape arrest by police - Accused seen standing near deceased apartment - Accused DNA found on murder weapon and on deceased - Injuries suffered by deceased not self-inflicted and were defensive wounds - Whether lies perpetrated by accused corroborated his guilty mind - Whether injuries sustained by deceased led to inference of non-consensual sexual intercourse - Whether absence of fingerprint evidence inconsequential
PP v. Muhammad Rasid Hashim
(Abang Iskandar J) [2011] 3 CLJ 424 [HC]

DAMAGES

Medical expenses - Expenses at private hospital - Whether first respondent entitled to seek treatment at private hospital - Whether first respondent could incur substantial private medical costs - Whether Sessions Court erred in not awarding full reimbursement of claim
Hong Teng Yong v. Khaw Kim Seng & Anor
(Choong Siew Khim JC) [2011] 3 CLJ 401 [HC]

EVIDENCE

Circumstantial evidence - Conduct - Accused charged with murder and rape - Whether conduct of accused amounted to unequivocal evidence of guilty state of mind - Proper inference to be drawn from conduct of accused - Whether evidence of such conduct admissible under s. 8 of Evidence Act 1950
PP v. Muhammad Rasid Hashim
(Abang Iskandar J) [2011] 3 CLJ 424 [HC]

Circumstantial evidence - Securing conviction of - Consideration of evidence in its entirety - Murder and rape - Whether led to conclusion that accused and no one else had raped and murdered victim
PP v. Muhammad Rasid Hashim
(Abang Iskandar J) [2011] 3 CLJ 424 [HC]

Fingerprint evidence - Charge of murder and rape - Presence of evidence of positive mixed DNA profile match-up between accused and deceased - Whether absence of physical fingerprints of accused inconsequential
PP v. Muhammad Rasid Hashim
(Abang Iskandar J) [2011] 3 CLJ 424 [HC]

LIMITATION

Land, recovery of - Whether action time barred - Filing of suit 17 years after knowledge of alleged conspiracy and fraud - Whether cause of action time barred by s. 9 of the Limitation Act 1953
Chan Soon Guan & Anor v. Ismail Hj Adnan
(KN Segara, Abu Samah Nordin, Hishamudin Mohd Yunus JJCA) [2011] 3 CLJ 366 [CA]

ROAD TRAFFIC

Negligence - Road accident - Liability - Whether appellant's vehicle infringed on wrong side of road causing accident - Admissibility of independent witness's evidence - Whether evidence given credible and irrefutable - Whether Sessions Court correct in finding appellant 100% liable
Hong Teng Yong v. Khaw Kim Seng & Anor
(Choong Siew Khim JC) [2011] 3 CLJ 401 [HC]

CASE OF THE WEEK

JALANG PARAN & ANOR v. GOVERNMENT OF THE STATE OF SARAWAK & ANOR

NATIVE LAW AND CUSTOM: Land dispute - Customary rights, extinguishment of - Validity of ministerial direction extinguishing rights - Whether direction infringing art. 5 Federal Constitution - Procedural fairness - Whether right to be heard given - Proper procedure in challenging direction - Whether by way of judicial review - Sarawak Land Code, s. 5(3) - Sarawak State Constitution, art. 39 - Federal Constitution, arts. 5, 8, 13, 153 - Rules of the High Court 1980, O. 53

LAND LAW: Customary land - Customary rights, extinguishment of - Validity of ministerial direction extinguishing rights - Whether direction infringing art. 5 Federal Constitution - Procedural fairness - Whether right to be heard given - Proper procedure in challenging direction - Whether by way of judicial review - Sarawak Land Code, s. 5(3) - Sarawak State Constitution, art. 39 - Federal Constitution, arts. 5, 8, 13, 153 - Rules of the High Court 1980, O. 53

ADMINISTRATIVE LAW: Exercise of administrative powers - Ministerial direction extinguishing customary rights over land - Validity of direction - Whether direction infringing art. 5 Federal Constitution - Procedural fairness - Whether right to be heard given - Proper procedure in challenging direction - Whether by way of judicial review - Sarawak Land Code, s. 5(3) - Sarawak State Constitution, art. 39 - Federal Constitution, arts. 5, 8, 13, 153 - Rules of the High Court 1980, O. 53

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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	1 April 2011 [PU(B) 146/2011]	- Nil -
ACT 724	National Visual Arts Development Board Act 2011	Not Yet In Force	- Nil -