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CLJ Bulletin, Issue 2014, Vol 17 25 April 2014 Print this page 
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New This Week
1. Cases(s) Of The Week
a) SDA ARCHITECTS v. METRO MILLENNIUM SDN BHD
b) HALAMAN PERDANA SDN BHD & ORS v. TASIK BAYANGAN SDN BHD
c) PP lwn. IQBAR SYAZWAN OTHMAN & YANG LAIN [2014] 1 SMC 23
2. Latest Cases
3. Articles
4. Legislation Highlights
c) PU(A)
d) PU(B)
SDA ARCHITECTS v. METRO MILLENNIUM SDN BHD
COURT OF APPEAL, PUTRAJAYA
HISHAMUDIN MOHD YUNUS JCA, AZIAH ALI JCA, HAMID SULTAN ABU BACKER JCA
[CIVIL APPEAL NO: B-02-1739-07-2012]
20 JANUARY 2014
ARBITRATION: Arbitrator - Reference of question of law to court - Issue of costs awarded by arbitrator - Whether proper question of law for determination of High Court - Arbitration Act 2005, s. 42(1)
ARBITRATION: Award - Costs - Discretion of arbitral tribunal - Whether courts may review costs awarded by arbitral tribunal - Whether proper question of law for determination of High Court - Rules of Court 2012, O. 59 r. 2(2); O. 69 r. 2(1) - Arbitration Act 2005, ss. 8, 44
CIVIL PROCEDURE: Appeal - Costs - Whether award of costs could be reviewed by appellate court - Exercise of discretion in awarding costs - Whether could be posed as question of law for appeal
HALAMAN PERDANA SDN BHD & ORS v. TASIK BAYANGAN SDN BHD
FEDERAL COURT, PUTRAJAYA
ARIFIN ZAKARIA CJ, ZULKEFLI MAKINUDIN CJ (MALAYA), RICHARD MALANJUM CJ (SABAH & SARAWAK), ABDULL HAMID EMBONG FCJ, ZAINUN ALI FCJ
[CIVIL APPLICATION NO: 08-783-10-2012(B)]
20 MARCH 2014
JURISDICTION: Courts - Inherent jurisdiction - Federal Court - Application to review and set aside decisions of Court of Appeal and Federal Court - Whether jurisdiction of Federal Court under r. 137 Rules of the Federal Court 1995 limited to reviewing its own decisions - Whether Federal Court has jurisdiction to review decisions of other courts - Whether decision in leave application tainted with bias - Whether allegation of bias should have been raised at earliest opportunity available instead of for review - Whether there was basis to invoke r. 137 - Whether fit and proper case to exercise jurisdiction
CIVIL PROCEDURE: Jurisdiction - Federal Court - Inherent jurisdiction - Application to review and set aside decisions of Court of Appeal and Federal Court - Whether jurisdiction of Federal Court under r. 137 Rules of the Federal Court 1995 limited to reviewing its own decisions - Whether Federal Court has jurisdiction to review decisions of other courts - Whether decision in leave application tainted with bias - Whether allegation of bias should have been raised at earliest opportunity available instead of for review - Whether there was basis to invoke r. 137 - Whether fit and proper case to exercise jurisdiction
PP lwn. IQBAR SYAZWAN OTHMAN & YANG LAIN [2014] 1 SMC 23 
MAHKAMAH MAJISTRET, KANGAR
ZUHAIR ROSLI MJ
[KES TANGKAP NO: 83-1010-12-2011]
11 JULAI 2013
UNDANG-UNDANG JENAYAH: Kanun Keseksaan - Seksyen 379/511 - Mencuri - Kesalahan cubaan mencuri batang kabel milik Telekom Malaysia - Kegagalan memanggil saksi penting - Sama ada anggapan bertentangan di bawah s. 114(g) Akta Keterangan 1950 digunapakai - Sama ada meruntuhkan kes pendakwaan - Sama ada tertuduh mempunyai niat curang untuk mengambil harta boleh alih - Sama ada terdapat niat mencuri atau cubaan mencuri - Sama ada terdapat keraguan dan lompang di dalam kes pendakwaan - Sama ada wajar dan selamat untuk melepaskan dan membebaskan tertuduh
To view a sample of the Sessions and Magistrates' Cases journal, click here. For product enquiries, contact priority@cljlaw.com.
PP v. MOHD HATTA MD RAMLI & ORS [2010] 4 CLJ 985
[1] Issue: Whether the Sessions Court Judge was right in discharging not amounting to an acquittal an accused who stood charged for an offence of unlawful assembly under s. 143 of the Penal Code on the ground that the charge, for charging less than five accused persons, failed to meet the definition of "unlawful assembly" in s. 141 of the Code, and was hence groundless and defective.
"It is my finding that the said charges are good in law and the learned Sessions Court Judge had erred in law and in fact when he decided that the said charges were groundless. It is my view that it is unnecessary for a charge under s. 143 of the Penal Code to consists of five or more persons or to state the presence of other person unknown or unidentified to make up the minimum requirement of five persons including the accused."
"By analogy, in a rape case, penetration is one of the ingredients for an offence of rape but it is sufficient to state in the charge that the accused had committed rape without alluding to the act of penetration though it constitutes one of the elements of rape. On the same premise, a charge for unlawful assembly could not be said as groundless simply by a reason that it does not state the existence of five persons or more. It is a matter for the prosecution to prove during the trial that five or more persons including the accused were involved in the alleged assembly so as to make it 'unlawful' as defined under s. 141 of the Penal Code and punishable under s. 143 of the Code ..." – per Azman Abdullah JC in PP v. Mohd Hatta Md Ramli & Ors [2010] 4 CLJ 985.
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Legal Network Series
SAWARN SINGH MEHAR SINGH v. PP
CRIMINAL PROCEDURE: Appeal - Appeal against conviction - Whether prosecution established there was deception on SP2, and in consequence of that deception appellant induced SP2 to deliver RM3000 - Whether trial judge's finding on this issue supported by the evidence - Whether any reason to interfere with his decision - Whether SP2 was a victim and not an accomplice for the offence of cheating preferred against appellant - Contradiction on the date of the meeting by SP8 - Whether just an honest mistake and honest confusion from an honest witness - Whether there was a gap in the prosecution's case - Defence's case - Whether appellant's evidence failed to raise any reasonable doubt in the prosecution case - Whether trial judge's decision on appellant's case was correct and did not warrant interference
CRIMINAL PROCEDURE: Appeal - Appeal against sentence - Appellant suffered more than enough and lost everything - Whether this was a weighty mitigating factor which trial judge failed to consider - Whether appellant's appeal on sentence should be allowed by reducing imprisonment term from two years' to one year's (mandatory) imprisonment
KURNIA INSURANS (M) BERHAD v. NIK MOHD FAIZUL NIK MUSTAFA & ANOR
INSURANCE: Motor insurance - Third party liability – Whether s. 96(3) of the Road Transport Act 1987 (RTA) could be invoked by applicant - Accident involving 1st respondent already occurred and was a past event - Whether applicant insurer's present application seeking a declaration from the Court was after the accident ie, after the date liability incurred, and not "before" as provided in s. 96(3) of the RTA - Whether it would be in accordance with s. 96(3) of the RTA for the Court to grant a declaration that the insurance was void or unenforceable - Sessions Court case against 1st and 2nd respondents withdrawn - Whether matter regarding applicant's possible liability to a third party for accident rendered academic
SHALIMAH FONG ABDULLAH v. HOON HUI KIT
CIVIL PROCEDURE: Contempt of court - Breach of injunction - Whether defendant's conduct in colluding with his solicitor to defy the Court order constituted a willful and flagrant act of disobedience - Whether intention of defendant in signing the Deed was to frustrate the injunction order and any judgment that would be subsequently obtained in plaintiff's pending Court action - Whether there was a deliberate violation of the court order by defendant which constituted an interference with the administration of justice - Whether defendant's commission of contempt of Court successfully proved beyond reasonable doubt
POLICY MANAGEMENT SDN BHD & ORS v. PERODUA SALES SDN BHD & ORS
CIVIL PROCEDURE: Appeal - Appeal against judgment of High Court - Judgment in favour of 1st plaintiff against 2nd defendant - Claim of 1st or 2 plaintiffs against 2nd defendant had always been pleaded in the alternative - Whether appeal by 2nd plaintiff against decision of the Court dismissing its claim against 2nd defendant should be regarded as an abuse of process, frivolous and without merit - Whether to allow 2nd plaintiff's claim as well would be to allow double recovery by 1st and 2nd plaintiffs against 2nd defendant arising from the same cause of action
INSURANCE: Agents - Whether 1st plaintiff was the effective cause of 1st defendant's EWP Scheme with 2nd defendant - Whether 3rd plaintiff acting on behalf of 1st plaintiff was the direct or effective cause of the insurance contract entered into between 2nd defendant as the insurer and 1st defendant as the insured - Whether 1st plaintiff was the "efficient cause of the transaction" between the 1st and 2nd defendants and was not a mere "introducer of the two parties" - Whether termination of 1st plaintiff's agency with 2nd defendant was wrongful - Whether 1st plaintiff still entitled to be paid its commission as 2nd defendant had secured insurance policy through services of 1st plaintiff - Whether 2nddefendant excused from its responsibility to pay commission to the 1st plaintiff by terminating the Master Policy
TORT: Inducement of breach of contract – 2nd defendant wrote to 1st plaintiff terminating 2nd plaintiff as an agent between 1st and 2nd defendants - Whether 1st defendant induced 2nd defendant to breach its contract with 1st and/or 2nd plaintiffs - Whether sufficient evidence to prove that 1st defendant willfully induced 2nd defendant to terminate 2nd plaintiff's contract or that 2nd defendant acted on the persuasion of 1st defendant - Whether 1st defendant liable for any breach
ZULKIFLI SAJAT v. PP
CRIMINAL PROCEDURE: Appeal - Appeal against conviction and sentence - Whether Sessions Court Judge followed proper principles in determining main ingredient of the charge of possession - Whether correct approach taken in inferring possession from the facts adduced especially taking into account the proximity and visibility principle - Whether Sessions Court Judge correctly evaluated the defence in relation to the presence of a person called Poh Seng before rejecting it - Whether conviction of accused by Sessions Court Judge was safe and could be upheld - Whether sentence imposed by Sessions Court Judge excessive and had taken into account all factors in support of the sentence
CLJ 2014 Volume 3 (Part 5)
COURT
FEDERAL COURT
Dato' Seri Anwar Ibrahim v. PP
Zulkefli Makinudin CJ (Malaya), Zaleha Zahari, Jeffrey Tan, Abu Samah Nordin, Ramly Ali FCJJ
(Criminal Procedure; Constitutional Law - Application to expunge part of paragraph in judgment - Inherent powers of the court) [2014] 3 CLJ 545 [FC]COURT OF APPEAL
Dato' Seri Mohammad Nizar Jamaluddin v. Sistem Televisyen Malaysia Bhd & Anor
Mohamad Ariff Yusof, David Wong Dak Wah, Abang Iskandar JJCA
(Tort - Defamation - Defences - Fair comment - Justification - Qualified privilege - Whether established) [2014] 3 CLJ 560 [CA]Lee Boon Siah & Ors v. PP
Azahar Mohamed, Tengku Maimun, Hamid Sultan Abu Backer JJCA
(Criminal Procedure; Criminal Law; Words & Phrases - Manufacturing of dangerous drugs - 'manufacture' - Definition of) [2014] 3 CLJ 584 [CA]Rikky Purba v. PP
Ramly Ali, Abdul Aziz Rahim, Mohd Zawawi Salleh JJCA
(Criminal Procedure; Criminal Law; Evidence - Murder - Provocation - Relevant consideration - Whether testimony of interested witness to be treated with caution) [2014] 3 CLJ 607 [CA]SDA Architects v. Metro Millennium Sdn Bhd
Hishamudin Mohd Yunus, Aziah Ali, Hamid Sultan Abu Backer JJCA
(Arbitration; Civil Procedure - Reference of question of law to court - Exercise of discretion in awarding costs) [2014] 3 CLJ 632 [CA]HIGH COURT
Mahabuilders Berhad v. Hotel Rasa Sayang Sdn Bhd
Abdul Rahman Sebli J
(Contract - Offer - Counter offer - Sale and purchase agreement - Specific performance) [2014] 3 CLJ 661 [HC]Sarawak Energy Berhad v. Minister Of Human Resources & Anor
Rhodzariah Bujang J
(Administrative Law; Company Law - Judicial review - Certiorari - Whether wrong party cited by Minister) [2014] 3 CLJ 672 [HC]SUBJECT INDEX
ADMINISTRATIVE LAW
Judicial review - Certiorari - Application for - Reference by Minister to Industrial Court - Application to quash reference to Industrial Court - Whether wrong party cited by Minister - Whether Minister should determine rightful employer - Industrial Relations Act 1967, s. 29
Sarawak Energy Berhad v. Minister Of Human Resources & Anor
(Rhodzariah Bujang J) [2014] 3 CLJ 672 [HC]ARBITRATION
Arbitrator - Reference of question of law to court - Issue of costs awarded by arbitrator - Whether proper question of law for determination of High Court - Arbitration Act 2005, s. 42(1)
SDA Architects v. Metro Millennium Sdn Bhd
(Hishamudin Mohd Yunus, Aziah Ali, Hamid Sultan Abu Backer JJCA) [2014] 3 CLJ 632 [CA]Award - Costs - Discretion of arbitral tribunal - Whether courts may review costs awarded by arbitral tribunal - Whether proper question of law for determination of High Court - Rules of Court 2012, O. 59 r. 2(2); O. 69 r. 2(1) - Arbitration Act 2005, ss. 8, 44
SDA Architects v. Metro Millennium Sdn Bhd
(Hishamudin Mohd Yunus, Aziah Ali, Hamid Sultan Abu Backer JJCA) [2014] 3 CLJ 632 [CA]CIVIL PROCEDURE
Appeal - Costs - Whether award of costs could be reviewed by appellate court - Exercise of discretion in awarding costs - Whether could be posed as question of law for appeal
SDA Architects v. Metro Millennium Sdn Bhd
(Hishamudin Mohd Yunus, Aziah Ali, Hamid Sultan Abu Backer JJCA) [2014] 3 CLJ 632 [CA]COMPANY LAW
Separate legal entities - Holding and subsidiary companies - Whether lines between two companies blurred - Whether holding company could terminate employee of subsidiary company - Whether corporate veil should be lifted
Sarawak Energy Berhad v. Minister Of Human Resources & Anor
(Rhodzariah Bujang J) [2014] 3 CLJ 672CONSTITUTIONAL LAW
Courts - Jurisdiction - Federal Court - Application to expunge part of paragraph in judgment - Inherent powers of the court - Whether extended to expunction or ordering expunction of irrelevant remarks made against a person - Whether fit and proper case for court to exercise its inherent jurisdiction - Rules of the Federal Court 1995, r. 137
Dato' Seri Anwar Ibrahim v. PP
(Zulkefli Makinudin CJ (Malaya), Zaleha Zahari, Jeffrey Tan, Abu Samah Nordin, Ramly Ali FCJJ) [2014] 3 CLJ 545 [FC]CONTRACT
Offer - Counter offer - Sale and purchase agreement - Draft agreement prepared by vendor - Inclusion of new terms in draft agreement by purchaser - Whether inclusion of new terms amounted to counter offer - Whether nullified vendor's offer - Whether plaintiff's claim for specific performance allowed
Mahabuilders Berhad v. Hotel Rasa Sayang Sdn Bhd
(Abdul Rahman Sebli J) [2014] 3 CLJ 661 [HC]Specific performance - Sale and purchase agreement - Draft agreement prepared by vendor - Inclusion of new terms in draft agreement by purchaser - Whether inclusion of new terms amounted to counter offer - Whether nullified vendor's offer - Whether plaintiff's claim for specific performance allowed
Mahabuilders Berhad v. Hotel Rasa Sayang Sdn Bhd
(Abdul Rahman Sebli J) [2014] 3 CLJ 661 [HC]CRIMINAL LAW
Dangerous drugs - Trafficking - Manufacturing of dangerous drugs - Whether prosecution must prove 'possession' of drug to show accused were trafficking - Whether definition of 'manufacture' in s. 2 of Dangerous Drugs Act 1952 included numerous and diverse processes or procedures not involving possession - Whether all circumstantial evidence taken together showed accused actively involved in manufacture of drugs at factory
Lee Boon Siah & Ors v. PP
(Azahar Mohamed, Tengku Maimun, Hamid Sultan Abu Backer JJCA) [2014] 3 CLJ 584 [CA]Murder - Defence - Provocation - Relevant consideration - Nature of provocation, reaction by parties, lapse of time, relationship of parties, sensitivity of parties - Whether deceased initiated provocation - Failure to put defence to prosecution witnesses - Whether defence ought to be rejected
Rikky Purba v. PP
(Ramly Ali, Abdul Aziz Rahim, Mohd Zawawi Salleh JJCA) [2014] 3 CLJ 607 [CA]CRIMINAL PROCEDURE
Appeal - Appeal to Federal Court - Application to expunge part of paragraph in judgment - Inherent powers of the court - Whether extended to expunction or ordering expunction of irrelevant remarks made against person - Whether fit and proper case for court to exercise its inherent jurisdiction - Rules of the Federal Court 1995, r. 137
Dato' Seri Anwar Ibrahim v. PP
(Zulkefli Makinudin CJ (Malaya), Zaleha Zahari, Jeffrey Tan, Abu Samah Nordin, Ramly Ali FCJJ) [2014] 3 CLJ 545 [FC]Judgment - Written judgment - Application to expunge part of paragraph in judgment - Expunction of irrelevant remarks made against person - Tests propounded in State of Uttar Pradesh v. Mohd Naim - Whether satisfied - Whether there was sufficient evidence to justify remarks made by judge - Whether comments part of analytical process undertaken by judge in arriving at decision - Whether remarks a "personal opinion" of judge - Whether applicant had opportunity to challenge accusations made against him - Whether there was evidence on record bearing on conduct justifying remarks - Whether necessary for decision of case to animadvert on conduct - Inherent powers of court - Whether fit and proper case for court to exercise inherent jurisdiction - Rules of the Federal Court 1995, r. 137
Dato' Seri Anwar Ibrahim v. PP
(Zulkefli Makinudin CJ (Malaya), Zaleha Zahari, Jeffrey Tan, Abu Samah Nordin, Ramly Ali FCJJ) [2014] 3 CLJ 545 [FC]Judgment - Written judgment - Application to expunge part of paragraph in judgment - Inherent powers of the court - Whether extended to expunction or ordering expunction of irrelevant remarks made against a person - Rules of the Federal Court 1995, r. 137
Dato' Seri Anwar Ibrahim v. PP
(Zulkefli Makinudin CJ (Malaya), Zaleha Zahari, Jeffrey Tan, Abu Samah Nordin, Ramly Ali FCJJ) [2014] 3 CLJ 545 [FC]Manufacturing of dangerous drugs - Whether prosecution must prove 'possession' of drug to show accused were trafficking - Whether definition of 'manufacture' in s. 2 of Dangerous Drugs Act 1952 included numerous and diverse processes or procedures not involving possession - Whether all circumstantial evidence taken together showed accused actively involved in manufacture of drugs at factory
Lee Boon Siah & Ors v. PP
(Azahar Mohamed, Tengku Maimun, Hamid Sultan Abu Backer JJCA) [2014] 3 CLJ 584 [CA]Murder - Provocation - Whether accused provoked to lose self-control - Relevant consideration - Whether accused's failure to put defence of provocation to prosecution's witnesses excusable - Whether prosecution obliged to explain injuries sustained by accused to support defence of self-defence - Whether obligation on accused to question prosecution witnesses about injuries
Rikky Purba v. PP
(Ramly Ali, Abdul Aziz Rahim, Mohd Zawawi Salleh JJCA) [2014] 3 CLJ 607 [CA]EVIDENCE
Witness - Interested witness - Witness was wife of deceased - Whether witness deposed in favour of deceased - Whether evidence tainted or rested on any basis of fact - Whether testimony to be treated with caution
Rikky Purba v. PP
(Ramly Ali, Abdul Aziz Rahim, Mohd Zawawi Salleh JJCA) [2014] 3 CLJ 607 [CA]TORT
Defamation - Defences - Fair comment - Whether an expression of opinion on matter of public interest - Whether based on true facts - Burden to prove truth on defendant - Whether comment fair - Whether publication made maliciously - Whether defence of fair comment established
Dato' Seri Mohammad Nizar Jamaluddin v. Sistem Televisyen Malaysia Bhd & Anor
(Mohamad Ariff Yusof, David Wong Dak Wah, Abang Iskandar JJCA) [2014] 3 CLJ 560 [CA]Defamation - Defences - Justification - Whether defamatory statement true or substantially true - Defendants giving unwarranted slant to plaintiff's statement - Defendants adding on facts to plaintiff's statement - Whether defendants' published own interpretation of plaintiff's statements - Whether verified statements with plaintiff - Whether defence of justification established - Defamation Act 1957, s. 8
Dato' Seri Mohammad Nizar Jamaluddin v. Sistem Televisyen Malaysia Bhd & Anor
(Mohamad Ariff Yusof, David Wong Dak Wah, Abang Iskandar JJCA) [2014] 3 CLJ 560 [CA]Defamation - Defences - Qualified privilege - Whether truth is pre-requisite - Whether malice defeats defence - Burden to prove malice on plaintiff - Defendants adding on facts to plaintiff's statement - Whether defendants' published own interpretation of plaintiff's statements - Whether verified statements with plaintiff - Whether plaintiff's reputation and image adversely affected - Whether defence of qualified privilege established
Dato' Seri Mohammad Nizar Jamaluddin v. Sistem Televisyen Malaysia Bhd & Anor
(Mohamad Ariff Yusof, David Wong Dak Wah, Abang Iskandar JJCA) [2014] 3 CLJ 560 [CA]Defamation - Libel - Defamatory news broadcast made based on plaintiff's Twitter statements - Defendants giving unwarranted slant to plaintiff's statement - Defendants adding on facts to plaintiff's statement - Whether defendants' published own interpretation of plaintiff's statements - Whether verified statements with plaintiff - Whether defence of justification, fair comment and qualified privilege established
Dato' Seri Mohammad Nizar Jamaluddin v. Sistem Televisyen Malaysia Bhd & Anor
(Mohamad Ariff Yusof, David Wong Dak Wah, Abang Iskandar JJCA) [2014] 3 CLJ 560 [CA]WORDS & PHRASES
Dangerous Drugs Act 1952, s. 2 - 'manufacture' - Definition of - Whether includes making, producing, compounding, assembling, refining or transformation of the drugs
Lee Boon Siah & Ors v. PP
(Azahar Mohamed, Tengku Maimun, Hamid Sultan Abu Backer JJCA) [2014] 3 CLJ 584 [CA]
CLJ 2014 Volume 3 (Part 6)
FEDERAL COURT
Halaman Perdana Sdn Bhd & Ors v. Tasik Bayangan Sdn Bhd
Arifin Zakaria CJ, Zulkefli Ahmad Makinudin CJ (Malaya), Richard Malanjum CJ (Sabah & Sarawak), Abdull Hamid Embong, Zainun Ali FCJJ
(Jurisdiction; Civil Procedure - Courts - Inherent jurisdiction - Federal Court) [2014] 3 CLJ 681 [FC]COURT OF APPEAL
AmFinance Bhd v. Ultimate Eight Sdn Bhd & Ors
Ramly Ali, Mah Weng Kwai, David Wong Dak Wah JJCA
(Hire Purchase - Breach of agreement - Default in payment - Repossession) [2014] 3 CLJ 695 [CA]Omar Suhaimi Abu Hassan v. Mahkamah Perusahaan Malaysia & Anor
Aziah Ali, Mohtarudin Baki, Hamid Sultan Abu Backer JJCA
(Civil Procedure; Words & Phrases - Judicial review - Application for leave) [2014] 3 CLJ 720 [CA]Pengarah Kastam Negeri Johor & Anor v. Kedai Makan Kebuh Teh (Sutera Utama) Sdn Bhd & Ors And Another Appeal
Alizatul Khair Osman, Hamid Sultan Abu Backer, Abang Iskandar JJCA
(Administrative Law; Revenue Law - Judicial review - Sales tax - Assessment) [2014] 3 CLJ 733 [CA]HIGH COURT
Modern Universal Sdn Bhd v. Msig Insurance (Malaysia) Bhd
Prasad Sandosham Abraham J
(Insurance - Fire insurance - Claim on policy - Arson) [2014] 3 CLJ 745 [HC]Perbadanan Aset Keretapi lwn. Koperasi Belia Nasional Berhad
Rosilah Yop PK
(Undang-Undang Tanah - Pajakan - Sewaan sementara - Kegagalan membayar sewa) [2014] 3 CLJ 767 [HC]Vincent Rajamony v. Lembaga Rayuan Kenaikan Pangkat Perkhidmatan Awam & Anor
Vernon Ong J
(Administrative Law; Words & Phrases - Rights and liabilities of public servants – Termination) [2014] 3 CLJ 783 [HC]Yeah Eh Farn v. Alliance Bank (M) Bhd
SM Komathy Suppiah JC
(Civil Procedure; Damages - Pleadings - Special damages - Assessment of damages) [2014] 3 CLJ 803 [HC]SUBJECT INDEX
ADMINISTRATIVE LAW
Judicial review - Application for - Delay of three days - Whether applied for extension of time - Whether delay explained - Whether requirement of time mandatory in nature - Whether application could be entertained - Rules of the High Court 1980, O. 53
Pengarah Kastam Negeri Johor & Anor v. Kedai Makan Kebuh Teh (Sutera Utama) Sdn Bhd & Ors And Another Appeal
(Alizatul Khair Osman, Hamid Sultan Abu Backer, Abang Iskandar JJCA) [2014] 3 CLJ 733 [CA]Rights and liabilities of public servants - Termination - Conferment of rank of 'acting' Maritime Commander - Whether automatically entitled officer to promotion - Whether officer reverted to substantive rank upon termination - Whether termination amounted to demotion or reduction in rank - Whether decision on termination of officer justiciable - Public Services Promotion Board Regulations 1986, reg. 2
Vincent Rajamony v. Lembaga Rayuan Kenaikan Pangkat Perkhidmatan Awam & Anor
(Vernon Ong J) [2014] 3 CLJ 783 [CA]CIVIL PROCEDURE
Damages - Assessment of damages - Distinction between general and special damages - Failure to plead special damages - Whether claim allowed - Whether claim to be taxed
Yeah Eh Farn v. Alliance Bank (M) Bhd
(SM Komathy Suppiah JC) [2014] 3 CLJ 803 [HC]Judicial review - Application for leave - Failure to include phrase "ex parte" and "leave" in originating application - Whether fatal - Subsequent application to amend judicial review application which had been fixed for full hearing - Insertion of word "leave to be granted" - Whether an attempt to convert full hearing as leave application - Whether requirement for leave application mandatory - Whether amendment allowed - Rules of Court 2012, O. 53 rr. 3(2), 3(6) & 3(7)
Omar Suhaimi Abu Hassan v. Mahkamah Perusahaan Malaysia & Anor
(Aziah Ali, Mohtarudin Baki, Hamid Sultan Abu Backer JJCA) [2014] 3 CLJ 720 [CA]Jurisdiction - Federal Court - Inherent jurisdiction - Application to review and set aside decisions of Court of Appeal and Federal Court - Whether jurisdiction of Federal Court under r. 137 Rules of the Federal Court 1995 limited to reviewing its own decisions - Whether Federal Court has jurisdiction to review decisions of other courts - Whether decision in leave application tainted with bias - Whether allegation of bias should have been raised at earliest opportunity available instead of for review - Whether there was basis to invoke r. 137 - Whether fit and proper case to exercise jurisdiction
Halaman Perdana Sdn Bhd & Ors v. Tasik Bayangan Sdn Bhd
(Arifin Zakaria CJ, Zulkefli Ahmad Makinudin CJ (Malaya), Richard Malanjum CJ (Sabah & Sarawak), Abdull Hamid Embong, Zainun Ali FCJJ) [2014] 3 CLJ 681 [FC]Pleadings - Damages - Distinction between general and special damages - Failure to plead special damages in statement of claim - Whether special damages recoverable if expressly allowed in grounds of decision - Whether claim to be taxed
Yeah Eh Farn v. Alliance Bank (M) Bhd
(SM Komathy Suppiah JC) [2014] 3 CLJ 803 [HC]DAMAGES
Quantum of damages - Special damages - Failure to plead special damages - Whether claim allowed - Whether claim to be taxed
Yeah Eh Farn v. Alliance Bank (M) Bhd
(SM Komathy Suppiah JC) [2014] 3 CLJ 803 [HC]HIRE PURCHASE
Breach of agreement - Default in payment - Variation of interest charges - Whether stated in letter of offer - Whether relevant notices given to hirer - Whether terms and conditions duly accepted by hirer
AmFinance Bhd v. Ultimate Eight Sdn Bhd & Ors
(Ramly Ali, Mah Weng Kwai, David Wong Dak Wah JJCA) [2014] 3 CLJ 695 [CA]Hire purchase agreement - Revised agreements - Second set of documents signed in escrow - Whether hirer allowed financier to utilise second set of documents - Second set of documents dated unilaterally by financier - Whether done in bad faith - Whether hirer accepted balance sum without objection - Whether hire purchase agreement valid and enforceable
AmFinance Bhd v. Ultimate Eight Sdn Bhd & Ors
(Ramly Ali, Mah Weng Kwai, David Wong Dak Wah JJCA) [2014] 3 CLJ 695 [CA]Repossession - Whether lawful - Whether financier obligated under contract to repossess equipment under hire - Whether hirer liable to deliver equipment upon default of payment
AmFinance Bhd v. Ultimate Eight Sdn Bhd & Ors
(Ramly Ali, Mah Weng Kwai, David Wong Dak Wah JJCA) [2014] 3 CLJ 695 [CA]INSURANCE
Fire insurance - Claim on policy - Arson - Whether insured involved in arson - Whether proved - Repudiation of liability - Whether insurer justified in repudiating liability - Whether insured acted in good faith - Whether insured acted in breach of condition of policy - Whether insured's claim grossly exaggerated
Modern Universal Sdn Bhd v. Msig Insurance (Malaysia) Bhd
(Prasad Sandosham Abraham J) [2014] 3 CLJ 745 [HC]JURISDICTION
Courts - Inherent jurisdiction - Federal Court - Application to review and set aside decisions of Court of Appeal and Federal Court - Whether jurisdiction of Federal Court under r. 137 Rules of the Federal Court 1995 limited to reviewing its own decisions - Whether Federal Court has jurisdiction to review decisions of other courts - Whether decision in leave application tainted with bias - Whether allegation of bias should have been raised at earliest opportunity available instead of for review - Whether there was basis to invoke r. 137 - Whether fit and proper case to exercise jurisdiction
Halaman Perdana Sdn Bhd & Ors v. Tasik Bayangan Sdn Bhd
(Arifin Zakaria CJ, Zulkefli Ahmad Makinudin CJ (Malaya), Richard Malanjum CJ (Sabah & Sarawak), Abdull Hamid Embong, Zainun Ali FCJJ) [2014] 3 CLJ 681 [FC]REVENUE LAW
Sales tax - Assessment - Notice on liability to pay sales tax and penalty - Application for leave to challenge notice by way of judicial review by taxpayers - Whether application limited by time - Delay of three days - Whether applied for extension of time - Whether delay explained - Whether application could be entertained - Rules of the High Court 1980, O. 53
Pengarah Kastam Negeri Johor & Anor v. Kedai Makan Kebuh Teh (Sutera Utama) Sdn Bhd & Ors And Another Appeal
(Alizatul Khair Osman, Hamid Sultan Abu Backer, Abang Iskandar JJCA) [2014] 3 CLJ 733 [CA]Sales tax - Assessment - Notice on liability to pay sales tax and penalty - Application for leave to challenge notice by way of judicial review by taxpayers - Whether taxpayer statutorily obliged to exhaust internal remedy first - Whether taxpayers exhausted remedy under s. 68 Sales Tax Act 1972 - Whether taxpayers could employ remedy under s. 141N Customs Act 1967 before exhausting remedy under Sales Tax Act 1972
Pengarah Kastam Negeri Johor & Anor v. Kedai Makan Kebuh Teh (Sutera Utama) Sdn Bhd & Ors And Another Appeal
(Alizatul Khair Osman, Hamid Sultan Abu Backer, Abang Iskandar JJCA) [2014] 3 CLJ 733 [CA]WORDS & PHRASES
'acting' - Public Services Promotion Board Regulations 1986, reg. 2 - Meaning of - Approval conferred on an officer so as to enable that officer to exercise duties of an officer of a higher grade - Subsequent phrase '... whether with a view to promotion or otherwise' - Whether denotes that conferment does not automatically entitle an officer to a promotion - Whether termination from 'acting' rank amounted to demotion
Vincent Rajamony v. Lembaga Rayuan Kenaikan Pangkat Perkhidmatan Awam & Anor
(Vernon Ong J) [2014] 3 CLJ 783 [HC]'statement' - Rules of Court 2012, O. 53 r. 7 - Meaning of - Judicial review application - Amendment to originating application - Whether O. 53 r. 7 specifically provides for amendment of 'statement'
Omar Suhaimi Abu Hassan v. Mahkamah Perusahaan Malaysia & Anor
(Aziah Ali, Mohtarudin Baki, Hamid Sultan Abu Backer JJCA) [2014] 3 CLJ 720 [CA]INDEKS PERKARA
UNDANG-UNDANG TANAH
Pajakan - Perjanjian pajakan untuk memajak hartanah - Permohonan menyambung tempoh pajakan - Kelulusan daripada Mesyuarat Jemaah Menteri - Sama ada diperolehi - Sewaan sementara - Kegagalan membayar sewa - Tuntutan bagi jumlah tunggakan hutang/sewaan - Sama ada terdapat perjanjian pajakan - Kuasa menentukan terma-terma pajakan tanah milik plaintif - Sama ada kelulusan Mesyuarat Jemaah Menteri boleh berkuatkuasa serta-merta atau selepas perjanjian pajakan baru ditandatangani - Sama ada plaintif berhak menuntut tunggakan hutang sewaan hingga tarikh kelulusan pajakan
Perbadanan Aset Keretapi lwn. Koperasi Belia Nasional Berhad
(Rosilah Yop PK) [2014] 3 CLJ 767 [HC]Sewaan - Sewaan sementara - Kegagalan membayar sewa - Tuntutan jumlah tunggakan hutang/sewaan - Sama ada terdapat perjanjian pajakan - Kuasa menentukan terma-terma pajakan tanah milik plaintif - Sama ada kelulusan Mesyuarat Jemaah Menteri boleh berkuatkuasa serta-merta atau selepas perjanjian pajakan baru ditandatangani - Sama ada plaintif berhak menuntut tunggakan hutang sewaan hingga tarikh kelulusan pajakan
Perbadanan Aset Keretapi lwn. Koperasi Belia Nasional Berhad
(Rosilah Yop PK) [2014] 3 CLJ 767 [HC]
Legal Network Series Article(s)
1. CONSTITUTIONAL ARRANGEMENTS ON RELIGION AND RELIGIOUS FREEDOM IN MALAYSIA AND INDONESIA:
FURTHERING OR INHIBITING RIGHTS?* [Read excerpt]
by: DIAN A. H. SHAH** [2014] 1 LNS(A) xxv2. SIYAR (UNDANG-UNDANG ANTARABANGSA ISLAM):
CABARAN UNTUK MEMPERMODEN DAN MENJADIKANNYA RELEVEN* [Read excerpt]
oleh: ROHIMI SHAPIEE** [2014] 1 LNS(A) xxvi3. HUKUMAN MATI MANDATORI:
SATU ANALISIS MENURUT PENGAMALAN UNDANG-UNDANG DI MALAYSIA DAN SYARIAH* [Read excerpt]
oleh: AZMAN BIN MOHD NOOR** [2014] 1 LNS(A) xxvii
Principal Acts
| Number | Title | Date coming into force | Repealing |
| ACT 746 | Construction Industry Payment And Adjudication Act 2012 | 15 April 2014 [PU(B) 124/2014] |
-Nil- |
| Number | Title | Date coming into force | Repealing |
| ACT 761 | Finance Act 2014 | See s 3 for the Income Tax Act; s 33 for the Stamp Act; s 36 for the Petroleum (Income Tax) Act; s 44 for the Real Property Gains Tax Act and s 50 for the Labuan Business Activity Tax Act | -Nil- |
| ACT 760 | Fees (Department Of Museums Malaysia) (Validation) Act 2014 |
1 January 1991 to 11 June 2012 | -Nil- |
| ACT 759 | Islamic Financial Services Act 2013 | 30 June 2013 [PU(B) 277/2013] - except para(s) 1 to 10 of Schedule 9 and para(s) 13 to 19 of Schedule 9 | -Nil- |
| ACT 758 | Financial Services Act 2013 | 30 June 2013 [PU(B) 276/2013] - except s 129 and Schedule 9 | -Nil- |
| ACT 757 | Strata Management Act 2013 | Not Yet In Force | -Nil- |
Amending Acts
| Number | Title | Date coming into force | Principal/Amending Act No |
| ACT A1460 | Prison (Amendment) Act 2014 | 3 April 2014 | ACT 537 |
| ACT A1459 | Prevention Of Crime (Amendment And Extension) Act 2014 | 2 April 2014 | ACT 297 |
| ACT A1458 | Supply Act 2014 | 1 January 2014 | - |
| ACT A1457 | Dangerous Drugs (Amendment) Act 2014 | 15 February 2014 | ACT 234 |
| ACT A1456 | Legal Profession (Amendment) Act 2013 | Not Yet In Force | ACT 166 |
PU(A)
| Number | Title | Date of Publication | Date coming into force | Principal/Amending Act No |
| PU(A) 102/2014 | Speed Limit (Sungai Besi Highway) Order 2014 | 14 April 2014 | 15 April 2014 | ACT 333 |
| PU(A) 101/2014 | Federal Roads (Sungai Besi Highway) Order 2014 | 14 April 2014 | 15 April 2014 | ACT 376 |
| PU(A) 100/2014 | Federal Roads (Sungai Besi Highway) (Revocation) Order 2014 | 14 April 2014 | 15 April 2014 | ACT 376 |
| PU(A) 99/2014 | Direct Sales (Amendment) Regulations 2014 | 14 April 2014 | 15 April 2014 | PU(A) 128/1993 |
| PU(A) 98/2014 | Mineral Development (Safety In Exploration And Surface Mining) Regulations 2014 | 9 April 2014 | 10 April 2014 | ACT 525 |
PU(B)
| Number | Title | Date of Publication | Date coming into force | Principal/Amending Act No |
| PU(B) 120/2014 | Appointment Of Directors Of Industrial Relations | 9 April 2014 | Specified in column (2) of the Schedule | ACT 177 |
| PU(B) 119/2014 | Notification Of Appointment Of Registrar Of Criminals And Assistant Registrar Of Criminals | 4 April 2014 | Specified in column (3) of the Schedule | ACT 7 |
| PU(B) 118/2014 | Declaration Of Pilotage District Of Pasir Gudang Port | 4 April 2014 | 5 April 2014 | ACT 488 |
| PU(B) 117/2014 | Notification Of Values Of Crude Petroleum Oil Under Section 12 | 3 April 2014 | 3 April 2014 to 16 April 2014 | ACT 235; PU(A) 275/2012 |
| PU(B) 116/2014 | Declaration Of House, Building, Enclosure Or Place Or Any Part Thereof As Place Of Detention | 2 April 2014 | 3 April 2014 | ACT 537; ACT 297 |
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