Bulletin_17

CLJ Bulletin, Issue 2011, Vol 17

6 May 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 6) 2011
	c) CLJ Volume 3 (Part 7) 2011

1. Legislation Highlights

PU(A)

NUMBER TITLE DATE COMING INTO FORCE
PRINCIPAL ACT NO

PU(A) 126/2011 Federal Roads (Private Management) (Collection Of Tolls) (East Coast Expressway-Phase 1) (Amendment) (Amendment) Order 2011 14 April 2011 ACT 306

PU(A) 127/2011 Federal Roads (Private Management) (Collection Of Tolls) (New North Klang Straits Bypass Expressway) (Amendment) (Amendment) Order 2011 14 April 2011 ACT 306

PU(A) 128/2011 Federal Roads (Private Management) (Collection Of Tolls) (Butterworth Outer Ring Road) (Amendment) (Amendment) Order 2011 14 April 2011 ACT 306

PU(A) 129/2011 Federal Roads (Private Management) (Collection Of Tolls) (Damansara-Puchong Highway) (Amendment) (Amendment) Order 2011 14 April 2011 ACT 306

PU(A) 130/2011 Federal Roads (Private Management) (Collection Of Tolls) (Penang Bridge) (Amendment) (Amendment) Order 2011 14 April 2011 ACT 306

PU(B)

NUMBER TITLE DATE COMING INTO FORCE
PRINCIPAL ACT NO

PU(B) 163/2011 Reservation Of Land For Public Purpose - Federal Territory Of Kuala Lumpur: Mukim - Batu 7 April 2011 ACT 56/1965

PU(B) 164/2011 Appointment Of Gaming Expert 7 April 2011 ACT 289

PU(B) 165/2011 Notice To Third Parties 7 April 2011 ACT 613

PU(B) 166/2011 List Of Insurance Licensees Whose Licenses Have Been Revoked Or Surrendered 7 April 2011 ACT 704

PU(B) 167/2011 List Of Insurance Licensees 7 April 2011 ACT 704

2. Articles

a) Legal Network Series Articles

1. Safety And Health At Work Legislation In Malaysia: Current Direction And Challenges** ^{[Read
excerpt]}
By Dr Rozanah Ab Rahman*

2. The Judicial Commissions Act 1994: Part II - Procrastination As A Ground For Complaint ^{[Read
excerpt]}
By David Mossop, Blackburn Chambers*

3. Latest Cases

a) Legal Network Series

CITATION TITLE SUBJECT

[2005] 1 LNS 256 [HC] Samuhum Karapanan v. Ketua Polis Daerah Melaka Tengah & Ors

ADMINISTRATIVE LAW: Natural justice - Allegations - 1^st defendant terminating plaintiff's service as a member of Royal Malaysian Police - Plaintiff alleging bad faith and breach of natural justice by 1^st defendant - Whether proved - Whether 1^st defendant denied plaintiff right to representation contravening regulation 5 of the Police (Conduct and Discipline) (Junior Police Officers and Constables) Regulations 1970 - Burden of proof - Plaintiff's application supported by affidavits - Whether sufficient to satisfy burden of proof

[2009] 1 LNS 472 [HC] PP v. Zainordin Yusuff @ Tay Boon San

CRIMINAL LAW: Dangerous Drugs Act 1952 - Section 12(2) - Possession of dangerous drugs - Whether magistrate erred in finding element of possession had not been proved for a charge under s. 12(2) Dangerous Drugs Act 1952 - Whether use of cautioned statement in considering whether there is a case to answer is permissible

[2009] 1 LNS 484 [HC] PP v. Che Yam Saad

CRIMINAL LAW: Dangerous Drugs Act 1952 - s. 39(1)(a) - Trafficking in dangerous drugs - Whether accused had knowledge of cannabis in "Indah Jelita" paper bag - Accused in custody and control of "Indah Jelita" paper bag with 8 packages in it - Whether statutory presumption of possession under s. 37(d) applicable - Whether possession proved through legal presumption or actual knowledge - Whether presumption under s. 37(da) could also be invoked - Application of rule against double presumptions - Whether charge ought to be amended to possession under s. 6 of the Act

CRIMINAL PROCEDURE: Sentence - Possession of cannabis - Public interest - Drug related offences rampant - Drugs involved 1 1/2 times in excess of statutory amount - Consideration of appropriate custodial sentence to be imposed

[2009] 1 LNS 524 [HC] Taswawasan Sdn Bhd v. Ratus Mayang Sdn Bhd & Anor

CONTRACT: Indemnity - Effect of indemnity - Whether plaintiff had cause of action against 2^nd defendant - Plaintiff adducing evidence to show cause of action based on 2^nd defendant's written undertaking to indemnify plaintiff - Whether illegality of logging contract rendered plaintiff's claim unenforceable in law

CONTRACT: Indemnity - Construction of - Whether plaintiff undertook logging extraction contract works on behalf of 1^st defendant from June until October 2001 - Whether 2^nd defendant's undertaking an indemnity - 2^nd defendant promising to save plaintiff from losses caused by failure of 1^st defendant to pay sums due to plaintiff within credit period - Whether 2^nd defendant liable to pay relevant sums to plaintiff regardless of 1^st defendant's liability to plaintiff - Whether 2^nd defendant executed undertaking - Dispute on where documents were signed and whether contents were explained

[2009] 1 LNS 627 [HC] Britannia Brands (Malaysia) Sdn Bhd v. Low Lay Kiang

LABOUR LAW: Employment - Terms and conditions of service - Whether Assistant Director of Labour (ADL) erred in law in failing to appreciate that retirement age of 55 years was an implied term in the contract of employment - Whether retirement age ought to have been provided for in contract of service when respondent was appointed - Whether oral evidence was admissible to establish a trade usage or custom to be annexed to the contract of service - Evidence Act 1950, s. 92 proviso (e)

LABOUR LAW: Employment - Termination benefits - Assistant Director of Labour (ADL) finding that retirement age was not a stipulation in the contract of service - Whether ADL erred in ruling that it was not possible to imply an implied term on retirement age - Whether ADL failed to consider section 2 of the Employment Act 1955 and misinterpreted Regulation 4(1)(A) of the Employment (Termination and Lay-Off Benefits) Regulations 1980

CITATION	TITLE	SUBJECT
[2005] 1 LNS 256 [HC]	Samuhum Karapanan v. Ketua Polis Daerah Melaka Tengah & Ors	ADMINISTRATIVE LAW: Natural justice - Allegations - 1^st defendant terminating plaintiff's service as a member of Royal Malaysian Police - Plaintiff alleging bad faith and breach of natural justice by 1^st defendant - Whether proved - Whether 1^st defendant denied plaintiff right to representation contravening regulation 5 of the Police (Conduct and Discipline) (Junior Police Officers and Constables) Regulations 1970 - Burden of proof - Plaintiff's application supported by affidavits - Whether sufficient to satisfy burden of proof
[2009] 1 LNS 472 [HC]	PP v. Zainordin Yusuff @ Tay Boon San	CRIMINAL LAW: Dangerous Drugs Act 1952 - Section 12(2) - Possession of dangerous drugs - Whether magistrate erred in finding element of possession had not been proved for a charge under s. 12(2) Dangerous Drugs Act 1952 - Whether use of cautioned statement in considering whether there is a case to answer is permissible
[2009] 1 LNS 484 [HC]	PP v. Che Yam Saad	CRIMINAL LAW: Dangerous Drugs Act 1952 - s. 39(1)(a) - Trafficking in dangerous drugs - Whether accused had knowledge of cannabis in "Indah Jelita" paper bag - Accused in custody and control of "Indah Jelita" paper bag with 8 packages in it - Whether statutory presumption of possession under s. 37(d) applicable - Whether possession proved through legal presumption or actual knowledge - Whether presumption under s. 37(da) could also be invoked - Application of rule against double presumptions - Whether charge ought to be amended to possession under s. 6 of the Act CRIMINAL PROCEDURE: Sentence - Possession of cannabis - Public interest - Drug related offences rampant - Drugs involved 1 1/2 times in excess of statutory amount - Consideration of appropriate custodial sentence to be imposed
[2009] 1 LNS 524 [HC]	Taswawasan Sdn Bhd v. Ratus Mayang Sdn Bhd & Anor	CONTRACT: Indemnity - Effect of indemnity - Whether plaintiff had cause of action against 2^nd defendant - Plaintiff adducing evidence to show cause of action based on 2^nd defendant's written undertaking to indemnify plaintiff - Whether illegality of logging contract rendered plaintiff's claim unenforceable in law CONTRACT: Indemnity - Construction of - Whether plaintiff undertook logging extraction contract works on behalf of 1^st defendant from June until October 2001 - Whether 2^nd defendant's undertaking an indemnity - 2^nd defendant promising to save plaintiff from losses caused by failure of 1^st defendant to pay sums due to plaintiff within credit period - Whether 2^nd defendant liable to pay relevant sums to plaintiff regardless of 1^st defendant's liability to plaintiff - Whether 2^nd defendant executed undertaking - Dispute on where documents were signed and whether contents were explained
[2009] 1 LNS 627 [HC]	Britannia Brands (Malaysia) Sdn Bhd v. Low Lay Kiang	LABOUR LAW: Employment - Terms and conditions of service - Whether Assistant Director of Labour (ADL) erred in law in failing to appreciate that retirement age of 55 years was an implied term in the contract of employment - Whether retirement age ought to have been provided for in contract of service when respondent was appointed - Whether oral evidence was admissible to establish a trade usage or custom to be annexed to the contract of service - Evidence Act 1950, s. 92 proviso (e) LABOUR LAW: Employment - Termination benefits - Assistant Director of Labour (ADL) finding that retirement age was not a stipulation in the contract of service - Whether ADL erred in ruling that it was not possible to imply an implied term on retirement age - Whether ADL failed to consider section 2 of the Employment Act 1955 and misinterpreted Regulation 4(1)(A) of the Employment (Termination and Lay-Off Benefits) Regulations 1980

b. CLJ Volume 3 (Part 6) 2011

COURT

FEDERAL COURT

Harcharan Singh Sohan Singh v. Ranjit Kaur S Gean Singh
Alauddin Mohd Sheriff PCA, Hashim Yusoff, Raus Sharif FCJJ
(Civil Procedure - Appeal to Court of Appeal - Leave to appeal) [2011] 3 CLJ 593 [FC]

COURT OF APPEAL

Mohamad Deraman v. PP
Zainun Ali, Sulong Matjeraie, Kang Hwee Gee JJCA
(Criminal Law; Criminal Procedure; Evidence - Murder - Cautioned statement) [2011] 3 CLJ 601 [CA]

Thien Teck Soon v. PP
Sulaiman Daud, Jeffrey Tan, Zahara Ibrahim JJCA
(Criminal Law; Criminal Procedure; Evidence - Trafficking in methamphetamine - Expert evidence) [2011] 3 CLJ 632 [CA]

HIGH COURT

Adsigns Imej Sdn Bhd v. Yayasan Selangor
Hamid Sultan Abu Backer J
(Contract; Civil Procedure - Breach - Costs - Taxation) [2011] 3 CLJ 652 [HC]

Arulappan Kannan v. Dr Suresh Chopra & Ors
Sofian Abd Razak J
(Tort; Evidence - Medical negligence - Documentary evidence) [2011] 3 CLJ 662 [HC]

CIMB Bank Bhd v. Khairudin Damhoeri
Hanipah Farikullah JC
(Banking; Civil Procedure; Evidence; Limitation - Banker and customer - Overdraft) [2011] 3 CLJ 687 [HC]

Hotel Istana Kuala Lumpur v. Jasman Saidun
Mohamad Ariff Yusof J
(Administrative Law; Labour Law - Judicial review - Industrial Court - Award) [2011] 3 CLJ 707 [HC]

SUBJECT INDEX

ADMINISTRATIVE LAW

Judicial review - Application for - Award of Industrial Court - Ex parte hearing - Sufficient cause warranting departure from technicalities and legal form - Exercise of Industrial Court's discretion - Whether decision of Industrial Court Chairman perverse in law - Industrial Relations Act 1967, s. 30(5)
Hotel Istana Kuala Lumpur v. Jasman Saidun
(Mohamad Ariff Yusof J) [2011] 3 CLJ 707 [HC]

BANKING

Banker and customer - Amount outstanding - Certificate of Indebtedness issued by the plaintiff - Whether there had been fraud or forgery in its issuance - Evidence adduced - Effect of - Whether there had been a 'manifest error' - Evidence Act 1950, s. 90A(2)
CIMB Bank Bhd v. Khairudin Damhoeri
(Hanipah Farikullah JC) [2011] 3 CLJ 687 [HC]

CIVIL PROCEDURE

Action - Striking out - First suit struck off for non-attendance of parties - Whether the plaintiff's had been estopped from bringing this claim
CIMB Bank Bhd v. Khairudin Damhoeri
(Hanipah Farikullah JC) [2011] 3 CLJ 687 [HC]

Appeal - Appeal to Court of Appeal - Failure to obtain leave - Value of subject matter less than RM250,000 - Subject matter of claim involving declaratory relief - Court of Appeal Practice Direction No. 2 of 1996, item (ii) - True meaning and effect of s. 68(1)(a) Courts of Judicature Act 1964 - Point of time at which value of subject matter ought to be determined - Courts of Judicature Act 1964, s. 68(1)(a)
Harcharan Singh Sohan Singh v. Ranjit Kaur S Gean Singh
(Alauddin Mohd Sheriff PCA, Hashim Yusoff, Raus Sharif FCJJ) [2011] 3 CLJ 593 [FC]

Appeal - Leave to appeal - Court of Appeal - Value of subject matter less than RM250,000 - Subject matter of claim involving declaratory relief - Court of Appeal Practice Direction No. 2 of 1996, item (ii) - True meaning and effect of s. 68(1)(a) Courts of Judicature Act 1964 - Point of time at which value of subject matter ought to be determined - Courts of Judicature Act 1964, s. 68(1)(a)
Harcharan Singh Sohan Singh v. Ranjit Kaur S Gean Singh
(Alauddin Mohd Sheriff PCA, Hashim Yusoff, Raus Sharif FCJJ) [2011] 3 CLJ 593 [FC]

Costs - Taxation - Allocatur fees - Whether costs subject to payment of allocatur when assessed and fixed by court - Issuance of certificate by registrar - Payment of allocatur upon extraction of order for costs
Adsigns Imej Sdn Bhd v. Yayasan Selangor
(Hamid Sultan Abu Backer J) [2011] 3 CLJ 652 [HC]

Limitation - Defendant raising defence of time bar against plaintiff's claim - Whether plaintiff's claim time barred - Defendant's conduct in the matter - Factors to consider - Effect of - Limitation Act 1953, s. 6
CIMB Bank Bhd v. Khairudin Damhoeri
(Hanipah Farikullah JC) [2011] 3 CLJ 687 [HC]

Service - Letter of demand - Overdraft facility - Whether the defendant had received the second letter of demand - Factors to consider - Provisions of the overdraft facility - Effect of
CIMB Bank Bhd v. Khairudin Damhoeri
(Hanipah Farikullah JC) [2011] 3 CLJ 687 [HC]

CONTRACT

Breach - Site agreement - Specific performance - Extension of agreement - Damages - Terms of agreement, non-compliance of - Whether there was breach - Whether claim for damages not maintainable
Adsigns Imej Sdn Bhd v. Yayasan Selangor
(Hamid Sultan Abu Backer J) [2011] 3 CLJ 652 [HC]

CRIMINAL LAW

Dangerous Drugs Act 1952 - Possession of methamphetamine and cannabis - Whether accused had exclusive possession and knowledge of nature of drugs - Drugs found concealed in hotel room occupied by accused - Presumption under s. 37(g) Dangerous Drugs Act 1952 - Whether elements of custody or control established - Whether offence of possession proved
Thien Teck Soon v. PP
(Sulaiman Daud, Jeffrey Tan, Zahara Ibrahim JJCA) [2011] 3 CLJ 632 [CA]

Dangerous Drugs Act 1952 - Section 39B(1)(a) - Trafficking in methamphetamine - Convicted and sentenced to death - Appeal against - Whether want of fingerprint evidence was fatal - Whether competency of chemist in analysing drugs established - Whether weighing instruments properly calibrated - Whether break in chain of custody and movement of drugs exhibits - Whether accused had exclusive possession and knowledge of nature of drugs - Whether drug sale transaction not completed as accused was still counting money when arrested - Whether opening address of prosecution failed to comply with s. 179(1) Criminal Procedure Code - Whether search list and drugs recovered not admissible because caution not immediately read to accused - Whether prosecution case proven beyond reasonable doubt
Thien Teck Soon v. PP
(Sulaiman Daud, Jeffrey Tan, Zahara Ibrahim JJCA) [2011] 3 CLJ 632 [CA]

Penal Code - Section 302 - Murder - Appeal against conviction and sentence - Whether conviction safe
Mohamad Deraman v. PP
(Zainun Ali, Sulong Matjeraie, Kang Hwee Gee JJCA) [2011] 3 CLJ 601 [CA]

CRIMINAL PROCEDURE

Appeal - Sentence, against - Role of the appellate court - Whether a miscarriage of justice had been committed in sentencing the appellant - Factors to consider - Courts of Judicature Act 1964, s. 60
Mohamad Deraman v. PP
(Zainun Ali, Sulong Matjeraie, Kang Hwee Gee JJCA) [2011] 3 CLJ 601 [CA]

Judgments - Grounds of judgment - Absence of a written judgment - Effect of - Rules of the Court of Appeal 1994, r. 61(1)(e)
Mohamad Deraman v. PP
(Zainun Ali, Sulong Matjeraie, Kang Hwee Gee JJCA) [2011] 3 CLJ 601 [CA]

Prosecution - Opening statement - Whether full details of prosecution's evidence must be particularised in opening statement - Whether prosecution can adduce at trial evidence not mentioned in opening statement
Thien Teck Soon v. PP
(Sulaiman Daud, Jeffrey Tan, Zahara Ibrahim JJCA) [2011] 3 CLJ 632 [CA]

Trial - Failure to cross-examine prosecution witness on crucial issue - Whether amounted to acceptance of witness's testimony
Thien Teck Soon v. PP
(Sulaiman Daud, Jeffrey Tan, Zahara Ibrahim JJCA) [2011] 3 CLJ 632 [CA]

EVIDENCE

Burden of proof - Fraud alleged in a civil case - Whether discharged by the defendant
CIMB Bank Bhd v. Khairudin Damhoeri
(Hanipah Farikullah JC) [2011] 3 CLJ 687 [HC]

Documentary evidence - Agreed bundle - Dispute as to authenticity - Whether could be allowed - Whether medical record a contemporaneous document
Arulappan Kannan v. Dr Suresh Chopra & Ors
(Sofian Abd Razak J) [2011] 3 CLJ 662 [HC]

Expert evidence - Analysis of dangerous drug - Whether findings of government chemist proper - Whether necessary for chemist to support his findings with details of his analysis
Thien Teck Soon v. PP
(Sulaiman Daud, Jeffrey Tan, Zahara Ibrahim JJCA) [2011] 3 CLJ 632 [CA]

Information leading to fact discovered - Evidence Act 1950, s. 27 - Admissibility and proof - Whether any defect in caution administered affects admissibility of information leading to fact discovered
Thien Teck Soon v. PP
(Sulaiman Daud, Jeffrey Tan, Zahara Ibrahim JJCA) [2011] 3 CLJ 632 [CA]

Statement - Cautioned statement - Whether it had been obtained voluntarily - Effect of
Mohamad Deraman v. PP
(Zainun Ali, Sulong Matjeraie, Kang Hwee Gee JJCA) [2011] 3 CLJ 601 [CA]

LABOUR LAW

Industrial Court - Award - Judicial review - Ex parte hearing - Sufficient cause warranting departure from technicalities and legal form - Exercise of Industrial Court's discretion - Whether decision of Industrial Court Chairman perverse in law - Industrial Relations Act 1967, s. 30(5)
Hotel Istana Kuala Lumpur v. Jasman Saidun
(Mohamad Ariff Yusof J) [2011] 3 CLJ 707 [HC]

LIMITATION

Overdraft - Accrual of cause of action - Whether plaintiff's claim time barred - Defendant's conduct in the matter - Factors to consider - Effect of - Limitation Act 1953, s. 6
CIMB Bank Bhd v. Khairudin Damhoeri
(Hanipah Farikullah JC) [2011] 3 CLJ 687 [HC]

TORT

Negligence - Medical negligence - Duty and standard of care - Whether breached - Whether nature of disease explained to patient - Whether risks of surgery clearly explained - Consent form and parol evidence rule - Whether surgery worsened patient's condition - Whether defendant (general orthopaedic surgeon) qualified to carry out spinal decompression and discectomy - Whether patient informed that defendant was not a spinal surgeon
Arulappan Kannan v. Dr Suresh Chopra & Ors
(Sofian Abd Razak J) [2011] 3 CLJ 662 [HC]

c. CLJ Volume 3 (Part 7) 2011

COURT

FEDERAL COURT

Nasarudin Daud lwn. PP & Satu Lagi
Richard Malanjum HB (Sabah & Sarawak), Hashim Yusoff, Mohd Ghazali Yusoff HHMP
(Undang-Undang Jenayah - Dadah berbahaya - Membawa dan menunjukkan dadah kepada agen perangkap - Sama ada satu perbuatan "mengedar") [2011] 3 CLJ 713 [FC]

Sean O'Casey Patterson v. Chan Hoong Poh & Ors
Arifin Zakaria CJ (Malaya), Zulkefli Ahmad Makinudin, James Foong FCJJ
(Civil Procedure; Family Law - Children - Adoption - Rights of biological parents - Registration of Adoption Act 1952 - Applicability to Muslims) [2011] 3 CLJ 722 [FC]

Tasja Sdn Bhd v. Golden Approach Sdn Bhd
Arifin Zakaria CJ (Malaya), Zulkefli Makinudin, James Foong FCJJ
(Civil Procedure; Limitation - Action - Striking out - Limitation - Claim for monetary debt against company - Whether limitation period may be postponed while company under winding up order) [2011] 3 CLJ 751 [FC]

COURT OF APPEAL

Ismail Abdullah v. Tenaga Nasional Bhd
Abdul Malik Ishak, KN Segara, Abdul Wahab Patail JJCA
(Civil Procedure; Land Law; Words & Phrases - Wayleave - Compensation - Decision of state authority on appeal from award of district land administrator - Whether final and unappealable) [2011] 3 CLJ 770 [CA]

HIGH COURT

Southern Pipe Industry (M) Sdn Bhd v. Barwill Agencies Sdn Bhd & Ors
Chew Soo Ho JC
(Tort; Shipping; Agency; Bailment - Carriage by sea - Barging of cargo - Loss of goods - Res ipsa loquitur) [2011] 3 CLJ 791 [HC]

Suppiah Pakriasamy lwn. S Balarajah & Yang Lain (No 1)
Abd Halim Aman H
(Profesion Undang-Undang; Prosedur Sivil - Saman pemula - Pengenepian - Sama ada tindakan mengaibkan, remeh dan satu salahguna proses) [2011] 3 CLJ 814 [HC]

Suppiah Pakriasamy v. S Balarajah & Ors (No 2)
Abd Halim Aman J
(Civil Procedure; Legal Profession - Action - Mode of commencement - Removal of Chairman of State Bar - Originating summons - Whether procedurally flawed) [2011] 3 CLJ 823 [HC]

Suppiah Pakriasamy v. Majlis Peguam Malaysia
Abd Halim Aman J
(Legal Profession - Bar Council - Council Meeting, resolutions thereof - Whether confidential) [2011] 3 CLJ 831 [HC]

SUBJECT INDEX

AGENCY

Principal and agent - Substituted agent - Principles - Test to be applied - Whether barge operator a sub-agent of shipping agent or a substituted agent of charterer - Extent of control - Barge operator appointed by shipping agent with approval of charterer - Whether barge owner a sub-agent of barge operator - Duty of care and negligence in loss of cargo during barging - Contracts Act 1950, ss. 143, 144, 147
Southern Pipe Industry (M) Sdn Bhd v. Barwill Agencies Sdn Bhd & Ors
(Chew Soo Ho JC) [2011] 3 CLJ 791 [HC]

BAILMENT

Bailment for reward - Possession - Barge operator taking possession of cargo upon discharge from vessel - Whether barge operator a bailee - Whether shipping agent and barge owner were bailees - Cargo rolling overboard whilst being barged from vessel to wharf - Negligence and duty of care
Southern Pipe Industry (M) Sdn Bhd v. Barwill Agencies Sdn Bhd & Ors
(Chew Soo Ho JC) [2011] 3 CLJ 791 [HC]

CIVIL PROCEDURE

Action - Mode of commencement - Removal of Chairman of State Bar - Originating summons to challenge legality of resolution passed at EGM - Whether in the nature of public law remedy - Whether action to be commenced by way of judicial review - Rules of the High Court 1980, O. 53 - Legal Profession Act 1976, ss. 41(2), 56, 57, 70(5), (8)
Suppiah Pakriasamy v. S Balarajah & Ors (No 2)
(Abd Halim Aman J) [2011] 3 CLJ 823 [HC]

Action - Striking out - Whether claim time-barred - Claim for payment under construction works contract - Whether defence of limitation must be pleaded - Whether limitation period to claim a monetary debt against a company may be postponed whilst company is under a winding up order - Rules of the High Court 1980, O. 18 r. 19 - Limitation Act 1953, ss. 4, 6
Tasja Sdn Bhd v. Golden Approach Sdn Bhd
(Arifin Zakaria CJ (Malaya), Zulkefli Makinudin, James Foong FCJJ) [2011] 3 CLJ 751 [FC]

Appeal - Appeal to Federal Court - Framing of questions for determination by Federal Court - Whether appellate panel ought not consider issues not framed as questions - Whether questions may be amended or added during hearing of appeal
Sean O'Casey Patterson v. Chan Hoong Poh & Ors
(Arifin Zakaria CJ (Malaya), Zulkefli Makinudin, James Foong FCJJ) [2011] 3 CLJ 722 [FC]

Limitation of action - Contract - Limitation period - Claim for payment under construction works contract - Whether claim time barred - Whether defence of limitation must be pleaded - Whether limitation period to claim a monetary debt against a company may be postponed whilst company is under a winding up order - Limitation Act 1953, ss. 4, 6
Tasja Sdn Bhd v. Golden Approach Sdn Bhd
(Arifin Zakaria CJ (Malaya), Zulkefli Makinudin, James Foong FCJJ) [2011] 3 CLJ 751 [FC]

Pleadings - Limitation - Failure to plead limitation - Whether defence of limitation under Limitation Act 1953 must be pleaded
Tasja Sdn Bhd v. Golden Approach Sdn Bhd
(Arifin Zakaria CJ (Malaya), Zulkefli Makinudin, James Foong FCJJ) [2011] 3 CLJ 751 [FC]

Summary judgment - Triable issues - Whether any raised by defendant - Plaintiff appealing against decision of High Court setting aside summary judgment - Decision of state authority on appeal from award of district land administrator - Whether final and unappealable - Electricity Supply Act 1990, ss. 11 & 16
Ismail Abdullah v. Tenaga Nasional Bhd
(Abdul Malik Ishak, KN Segara, Abdul Wahab Patail JJCA) [2011] 3 CLJ 770 [CA]

FAMILY LAW

Children - Adoption - Adoption under Registration of Adoption Act 1952 - Whether requirements for adoption satisfied - Identity of biological father unknown at time of adoption - Whether consent of biological father should have been obtained for the adoption - Whether where both biological parents living, consent of both parents must be sought - Welfare of child to be considered in widest sense in dispensing with consent of any parent - Whether rights of biological parents remain and are not extinguished despite registration of adoption under Registration of Adoption Act 1952
Sean O'Casey Patterson v. Chan Hoong Poh & Ors
(Arifin Zakaria CJ (Malaya), Zulkefli Makinudin, James Foong FCJJ) [2011] 3 CLJ 722 [FC]

Children - Adoption - Muslims - Whether Registration of Adoption Act 1952 applicable to Muslims - Registration of Adoption Act 1952 enacted to cater for Muslims
Sean O'Casey Patterson v. Chan Hoong Poh & Ors
(Arifin Zakaria CJ (Malaya), Zulkefli Makinudin, James Foong FCJJ) [2011] 3 CLJ 722 [FC]

LAND LAW

Wayleave - Compensation - Electricity Supply Act 1990, ss. 11 & 16 - Award by district land administrator and finality of appeal to state authority - Whether High Court has power to review decision of state authority - Electricity Supply Act 1990, s. 16
Ismail Abdullah v. Tenaga Nasional Bhd
(Abdul Malik Ishak, KN Segara, Abdul Wahab Patail JJCA) [2011] 3 CLJ 770 [CA]

LEGAL PROFESSION

Bar Council - Council meetings - Resolutions thereof - Whether confidential in nature - Whether may not be divulged if adverse to Council's interest - Section 76(3) Legal Profession Act 1976 - Effect - Whether superseding principle in Majlis Peguam Malaysia & Ors v. Raja Segaran Krishnan & Other Appeals
Suppiah Pakriasamy v. Majlis Peguam Malaysia
(Abd Halim Aman J) [2011] 3 CLJ 831 [HC]

State Bar - Office bearers - Extraordinary General Meeting - Removal of Chairman - Originating summons to challenge legality of resolution passed at EGM - Summons directed at individual members of State Bar - Whether in the nature of public law remedy - Proper mode of action - Whether to be begun by way of judicial review - Legal Profession Act 1976, ss. 41(2), 56, 57, 70(5), (8) - Rules of the High Court 1980, O. 53
Suppiah Pakriasamy v. S Balarajah & Ors (No 2)
(Abd Halim Aman J) [2011] 3 CLJ 823 [HC]

LIMITATION

Contract - Claim for payment under construction works contract - Whether claim time barred - Whether defence of limitation must be pleaded - Whether limitation period to claim a monetary debt against a company may be postponed whilst company is under a winding up order - Limitation Act 1953, ss. 4, 6
Tasja Sdn Bhd v. Golden Approach Sdn Bhd
(Arifin Zakaria CJ (Malaya), Zulkefli Makinudin, James Foong FCJJ) [2011] 3 CLJ 751 [FC]

SHIPPING

Carriage of goods - Loss of goods - Barging of cargo - Cargo rolling overboard whilst being barged from vessel to wharf - Consignee suing shipping agent, barge operator and barge owner - Agency - Whether barge operator a sub-agent of shipping agent or a substituted agent of charterer - Whether barge owner a sub-agent of barge operator - Duty of care - Whether shipping agent and barge owner liable for negligence of barge operator - Bailment and possession
Southern Pipe Industry (M) Sdn Bhd v. Barwill Agencies Sdn Bhd & Ors
(Chew Soo Ho JC) [2011] 3 CLJ 791 [HC]

TORT

Negligence - Carriage of goods by sea - Barging of cargo - Cargo rolling overboard whilst being barged from vessel to wharf - Consignee suing shipping agent, barge operator and barge owner - Duty of care - Agency and liability - Whether barge operator a sub-agent of shipping agent or a substituted agent of charterer - Whether barge owner a sub-agent of barge operator - Whether shipping agent and barge owner liable for negligence of barge operator - Res ipsa loquitur, whether doctrine applies
Southern Pipe Industry (M) Sdn Bhd v. Barwill Agencies Sdn Bhd & Ors
(Chew Soo Ho JC) [2011] 3 CLJ 791 [HC]

Negligence - Res ipsa loquitur - Application of doctrine, conditions for - Unavailability of evidence as to how loss occurred - Carriage of goods by sea - Barging of cargo - Cargo rolling overboard whilst being barged from vessel to wharf
Southern Pipe Industry (M) Sdn Bhd v. Barwill Agencies Sdn Bhd & Ors
(Chew Soo Ho JC) [2011] 3 CLJ 791 [HC]

WORDS & PHRASES

"shall be final" - Electricity Supply Act 1990, s. 16(2) - Mandatory - Not appealable - Whether High Court has power to review decision of state authority
Ismail Abdullah v. Tenaga Nasional Bhd
(Abdul Malik Ishak, KN Segara, Abdul Wahab Patail JJCA) [2011] 3 CLJ 770 [CA]

INDEKS PERKARA

PROFESION UNDANG-UNDANG

Jawatankuasa Peguam Negeri - Mesyuarat agong luar biasa - Mesyuarat agong luar biasa untuk memecat Pengerusi - Sama ada mesyuarat dipanggil dengan teratur dan sah - Sama ada prosedur pemecatan teratur dan sah - Sama ada ultra vires Akta Profesion Undang-Undang 1976
Suppiah Pakriasamy lwn. S Balarajah & Yang Lain (No 1)
(Abd Halim Aman H) [2011] 3 CLJ 814 [HC]

PROSEDUR SIVIL

Pliding - Saman pemula - Pengenepian - Pemecatan Pengerusi, Jawatankuasa Peguam Negeri - Saman pemula untuk perintah bahawa pemecatan tak sah - Sama ada tidak wujud kausa tindakan yang sah - Sama ada defendan-defendan tidak wajar dijadikan defendan - Sama ada tindakan mengaibkan, remeh dan satu salahguna proses mahkamah - Sama ada harus diketepikan - Kaedah-Kaedah Mahkamah Tinggi 1980, A. 18 k. 19(1)(a), (b), (d), A. 92 k. 4
Suppiah Pakriasamy lwn. S Balarajah & Yang Lain (No 1)
(Abd Halim Aman H) [2011] 3 CLJ 814 [HC]

UNDANG-UNDANG JENAYAH

Dadah berbahaya - Mengedar ganja - Perbuatan mengedar, takrif - Membawa dan menunjukkan ganja kepada agen perangkap - Sama ada suatu perbuatan "mengedar" - Akta Dadah Berbahaya 1952, ss. 2, 39B(2)
Nasarudin Daud lwn. PP & Satu Lagi
(Richard Malanjum HB (Sabah & Sarawak), Hashim Yusoff, Mohd Ghazali Yusoff HHMP) [2011] 3 CLJ 713 [FC]

CASE OF THE WEEK

NOMEZAM APANDY ABU HASSAN v. PP

CRIMINAL LAW: Penal Code - Section 302 - Murder - Intention or knowledge - Whether proved - Whether accused's intention of causing bodily injury could be gathered from his act of pouring petrol on deceased and using burning newspaper to set deceased ablaze - Whether accused's acts fatal and carried knowledge of consequences - Mens rea - Whether established

CRIMINAL LAW: Penal Code - Section 302 - Murder - Conviction based on confession made by murder accused to magistrate under Criminal Procedure Code, s. 115 - Whether voluntariness proved - Incriminating parts of confession, whether corroborated

CRIMINAL LAW: Penal Code - Section 302 - Murder - Conviction based on evidence of witness - Whether witness an accomplice - Whether evidence required corroboration - Whether independent evidence connected accused with crime - Whether there was plausible ground to reject witness's evidence - Whether there was sufficient corroboration from other witnesses - Whether existence of motive to kill amounted to corroborative evidence

CRIMINAL PROCEDURE: Mens rea - Inference from facts established - Whether mens rea for murder may be gathered from indirect evidence by reference to facts and circumstances of the case - Penal Code, s. 300

EVIDENCE: Confession - Confession made by murder accused to magistrate under Criminal Procedure Code s. 115 - Whether voluntariness proved - Incriminating parts of confession, whether corroborated

EVIDENCE: Dying declaration - Statements made by deceased - Whether attracted application of s. 32(1)(a) Evidence Act 1950 - Whether statements made by deceased to father and brother relevant and admissible

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NUMBER	TITLE	DATE COMING INTO FORCE	PRINCIPAL ACT NO
PU(A) 126/2011	Federal Roads (Private Management) (Collection Of Tolls) (East Coast Expressway-Phase 1) (Amendment) (Amendment) Order 2011	14 April 2011	ACT 306
PU(A) 127/2011	Federal Roads (Private Management) (Collection Of Tolls) (New North Klang Straits Bypass Expressway) (Amendment) (Amendment) Order 2011	14 April 2011	ACT 306
PU(A) 128/2011	Federal Roads (Private Management) (Collection Of Tolls) (Butterworth Outer Ring Road) (Amendment) (Amendment) Order 2011	14 April 2011	ACT 306
PU(A) 129/2011	Federal Roads (Private Management) (Collection Of Tolls) (Damansara-Puchong Highway) (Amendment) (Amendment) Order 2011	14 April 2011	ACT 306
PU(A) 130/2011	Federal Roads (Private Management) (Collection Of Tolls) (Penang Bridge) (Amendment) (Amendment) Order 2011	14 April 2011	ACT 306