TAN SRI ABDUL KHALID IBRAHIM v. BANK ISLAM MALAYSIA BHD
HIGH COURT MALAYA, KUALA LUMPUR
MOHD ZAWAWI SALLEH J
[SUIT NO: D4-22A-216-2007]
2 DECEMBER 2011

BANKING: Banks and banking business - Islamic banking - Bai Bithaman Ajil Facility - Facility and transactions thereunder alleged to have contravened Islam and Syariah Principles - Whether Court required to refer Syariah issues to Syariah Advisory Council (SAC) Bank Negara Malaysia for ruling - Whether ss. 56 & 57 of Central Bank of Malaysia Act 2009 had retrospective effect - Whether they negated defendant's substantive right to lead expert evidence on Syariah issues

Legal Network Series

[2009] 1 LNS 1498	CHEAH NGUN YING v. LOW CHEONG & SONS SDN BHD & ORS	COMPANIES AND CORPORATIONS: Directors - Breach of fiduciary duties - Issuance and allotment of shares at par value of RM1.00 per share by company - Affected plaintiff's family shareholding in first defendant company - Whether board of directors of first defendant in breach of fiduciary duties by doing so - Whether allotment should be declared null and void EQUITY: Defences - Laches - Delay in commencing action by estate of deceased - No impediment to remedies sought by plaintiff - No third party affected by relief sought by plaintiff - Whether plaintiff's claim barred by laches
[2011] 1 LNS 189	PRIMUS (MALAYSIA) SDN BHD v. EON CAPITAL BERHAD	COMPANIES AND CORPORATIONS: Meetings - Resolutions - Validity - Motion for adjournment - Properly seconded - Plaintiff's representatives left meeting on own volition when Chairman refused to put motions to vote - Whether Chairman should have put motion for adjournment to vote - Whether Chairman contravened Article 63 by refusing to do so - Whether invalidated all business conducted thereafter at meeting COMPANIES AND CORPORATIONS: Meetings - Refusal to put motion for removal of Chairman to members - No specific provision in Articles of Association for removal of a Chairman at General Meeting -Whether Chairman's refusal to put motion to replace him as Chairman justified
[2011] 1 LNS 199	PP v. POO KOK LAN	CRIMINAL PROCEDURE: Trial - Dangerous Drugs Act 1952 - Prima facie case - Occupier and exclusive possession - Three other persons sharing same address as accused - Whether prosecution discharged onus of proof to exclude possibility of access by others - Possession - Whether accused had custody or control of drugs - Whether prosecution had proved accused knew of presence of drugs in house and had power of disposal of same -Whether a prima facie case made out against accused - Whether accused's defence should be called EVIDENCE: Exhibit - Identity of exhibits - Difference in type of drugs and gross weight mentioned in Charge Sheets in Magistrate's Court and those subsequently tendered in High Court - Whether a serious doubt existed as to identity of exhibits
[2011] 1 LNS 200	MOHAMED NAZERI OSMAN v. SITI HAJAR ABDUL RAHMAN	CIVIL PROCEDURE: Appeal - Appeal from subordinate court to High Court - Appeal on liability - Motor accident - Two versions - Finding by trial judge that appellant's version more inherently probable than respondent's - Facts and surrounding circumstances of case - Whether any reason to doubt credibility of respondent - Whether respondent had proved appellant was 100% liable for causing accident - Whether appellate interference warranted EVIDENCE: Corroboration - No independent corroborative evidence to support respondent's version - Examination of respondent's evidence against the facts and surrounding circumstances of case - Whether any reason to doubt credibility of respondent - Whether there was sufficient circumstantial evidence to corroborate her claim
[2011] 1 LNS 202	NIK MAHMOOD NIK MAT v. CHEW KAM LEONG	LAND LAW: Transfer - Validity of - Whether plaintiff's signature in Memorandum of Transfer forged - Evidence tendered by PW1, a Gazetted examiner of documents and also an examiner of signature - Whether plaintiff's signature in column "pihak pemindah" of Memorandum of Transfer forged - Whether Memorandum of Transfer a void instrument and a nullity LAND LAW: Transfer - Fraud - Indefeasibility of title - Whether registration of transfer of plaintiff's 2/24 shares in the property in favour of defendant defeasible under s. 340 (2)(b) of the National Land Code 1965 EVIDENCE: Expert evidence - Handwriting - Expert's opinion that plaintiff's signature in Memorandum of Transfer forged - Not specifically challenged or rebutted by defendant - Whether could be accepted as conclusive finding - Whether cogent reasons given why signature in column "pihak pemindah" in Memorandum of Transfer forged - Whether court should accept opinion of expert witness

CLJ 2012 Volume 3 (Part 1)

COURT

[SC India]

Mrinal Das & Ors v. State Of Tripura
P Sathasivam, HL Gokhale SCJJ
(Evidence; Criminal Procedure; Criminal Law - Corroboration - Delay in seeking pardon - Common intention - Powers of appellate court) [2012] 3 CLJ 1 [SC India]

COURT OF APPEAL

PP v. Asnawi Yusuf
Hasan Lah, Sulong Matjeraie, Hishamudin Mohd Yunus JJCA
(Criminal Law; Criminal Procedure - Witnesses offered to defence - Failure to secure attendance) [2012] 3 CLJ 41 [CA]

Tan Sri Musa Dato' Hj Hassan & Ors v. Uthayakumar Ponnusamy
KN Segara, Hishamudin Mohd Yunus JJCA, Abdul Aziz Rahim J
(Tort; Civil Procedure - Defamation - Statements made linking unregistered society to terorist group - Liability) [2012] 3 CLJ 52 [CA]

HIGH COURT

Citibank Bhd v. Malwira Manufacturing Sdn Bhd
Varghese George Varughese JC
(Company Law - Winding-up - Petition in English and not in Bahasa Malaysia - Grounds for dismissing) [2012] 3 CLJ 81 [HC]

Lembaga Kemajuan Tanah Persekutuan & Anor v. Dr Tan Kee Kwong
Zabariah Mohd Yusof J
(Tort - Defamation - Slander - Locus to maintain action - Adverse opinion about plaintiffs - Whether defendant responsible) [2012] 3 CLJ 87 [HC]

PP v. AF (A Child) & Ors
Mohd Yazid Mustafa J
(Criminal Law; Evidence - Murder - Identification parade) [2012] 3 CLJ 117 [HC]

Strongkota Development Sdn Bhd v. Lembaga Lebuhraya Malaysia & Anor
Zakaria Sam J
(Land Law - Acquisition of land - Loss of use of land - Whether defendants owed plaintiff duty of care not to cause loss) [2012] 3 CLJ 135 [HC]

Wong Kam Ming v. Chang Fei Ching
Lee Heng Cheong JC
(Contract - Non-fulfilment of condition precedent - Whether plaintiff/vendor bound to refund deposit) [2012] 3 CLJ 160 [HC]

SUBJECT INDEX

CIVIL PROCEDURE

Striking out - Action in libel - Dismissal of application to strike out - Appeal against dismissal - Press statements alleged defamatory - Whether directed at respondent as legal adviser of HINDRAF organisation - Whether HINDRAF a legal body - Whether leaders and members had locus standi to institute civil proceedings - Whether respondent's action for and on behalf of HINDRAF sustainable on public policy grounds
Tan Sri Musa Dato' Hj Hassan & Ors v. Uthayakumar Ponnusamy
(KN Segara, Hishamudin Mohd Yunus JJCA Abdul Aziz Rahim J) [2012] 3 CLJ 52 [CA]

COMPANY LAW

Winding-up - Opposition to petition - Company viable and ongoing - Displacement of employees - Petition in English and not in Bahasa Malaysia - Whether grounds for dismissing petition - Companies Act 1965, s. 218
Citibank Bhd v. Malwira Manufacturing Sdn Bhd
(Varghese George Varughese JC) [2012] 3 CLJ 81 [HC]

CONTRACT

Contingent contract - Non-fulfilment of condition precedent - Agreement for sale and purchase of land - Frustration - Plaintiff unable to obtain consent of Director of Lands and Surveys to transfer land - Agreement impossible to perform - Whether plaintiff/vendor bound to refund deposit paid under the agreement - Contracts Act 1950, ss. 32, 57(2) & 66 - Rules of the High Court 1980, O. 14A r. 1
Wong Kam Ming v. Chang Fei Ching
(Lee Heng Cheong JC) [2012] 3 CLJ 160 [HC]

CRIMINAL LAW

Dangerous Drugs Act 1952 - Section 39B(1)(a) - Trafficking in 28,666 grams cannabis - Appeal against acquittal and discharge - Failure to secure attendance of three witnesses offered to defence by prosecution - Whether testimony of witnesses crucial to defence case - Whether failure to secure attendance of witnesses occasioned miscarriage of justice - Whether respondent raised a reasonable doubt over prosecution's case
PP v. Asnawi Yusuf
(Hasan Lah, Sulong Matjeraie, Hishamudin Mohd Yunus JJCA) [2012] 3 CLJ 41 [CA]

Penal Code - Murder - Section 300 - Incident occurring in crowded and chaotic circumstances - Whether evidence of eye-witness credible - Whether actus reus proved by eye-witness's account
PP v. AF (A Child) & Ors
(Mohd Yazid Mustafa J) [2012] 3 CLJ 117 [HC]

Penal Code, 1860 [India] - Section 34 - Common intention - Proof or inference of - Extent to which overt acts of various accused need to be proved - Burden of proof, held, lies on the prosecution to prove actual participation of more than one person for commission of criminal act done in furtherance of common intention - Common intention can be developed on spur of moment but there must be prearrangement or premeditated concept - Not necessary that individual act of accused persons has to be proved by direct evidence, nor that acts of accused charged jointly must be same or identically similar - Common intention has to be inferred from proved facts and circumstances and once there exists common intention, mere presence of accused persons among the assailants would be sufficient proof of their participation in offence - On facts held, in light of disclosure made by the approver (PW 6), coupled with statement of eyewitnesses, it is clear that the 13 assailants had planned and remained present on shore of river to eliminate deceased - High Court was justified in invoking s. 34 for convicting 6 accused including two convicted appellants
Mrinal Das & Ors v. State Of Tripura
(P Sathasivam, HL Gokhale SCJJ) [2012] 3 CLJ 1 [SC India]

Penal Code, 1860 [India] - Sections 34 and 149 - Common intention and common object - Difference - Restated
Mrinal Das & Ors v. State Of Tripura
(P Sathasivam, HL Gokhale SCJJ) [2012] 3 CLJ 1 [SC India]

Penal Code, 1860 [India] - Section 302 r/w s. 34 - Political murder - Eyewitness account - Corroboration by approver - Conviction confirmed - Alleged that 13 assailants planned and remained present on shore to eliminate deceased, and when deceased disembarked from boat, A-12 (approver and examined as PW 6) dragged him down, and when he fell on ground A-5 and A-11 shot him causing severe bullet injuries consequent to which he died - PW 6 approver making a full and true disclosure of circumstances culminating in death of deceased - His testimony corroborated by other PWs particularly eyewitnesses in all aspects including conspiracy, planning to attack deceased for his statement about the students' movement, actual incident, role played by assailants and subsequent events after gunshot till death of deceased - Common intention to eliminate deceased proved - No inconsistency between contents of post-mortem report, evidence of PW 14 (doctor who conducted post-mortem) and ocular evidence of PW 6 - Assailants identified by PWs including PW 6 - Hence, impugned judgment setting aside acquittal of A-4, A-7, A-9 and A-1 and convicting them under ss. 302/34 and affirming conviction of A-5 & A-11 under s. 302 calls for no interference
Mrinal Das & Ors v. State Of Tripura
(P Sathasivam, HL Gokhale SCJJ) [2012] 3 CLJ 1 [SC India]

CRIMINAL PROCEDURE

Criminal Procedure Code, 1973 [India] - Sections 306, 307 and 308 - Delay in seeking pardon and turning approver (four years' delay from incident) - Effect on reliability of testimony of approver - Held, pardon can be sought and can be tendered at any time after commitment of a case but before judgment is pronounced - In instant case, trial commenced on 11 March 2003 and PW 6 submitted his application to become approver on 16 June 2004 well before judgment which was delivered on 19 April 2005 - Hence, contention regarding delay on part of PW 6 to seek pardon thereby making his testimony unreliable, liable to be rejected - Moreover, PW 6 was one of the 13 accused charged with murder and was privy to offence - He categorically narrated entire occurrence right from its inception to culmination, thus making a full and true disclosure of circumstances within his knowledge - He asserted that he repented the act and had lost his peace of mind, and his decision to disclose was voluntary - Besides, his testimony was corroborated by other eyewitnesses in all aspects and he identified all accused in court by name and face - Hence, High Court was absolutely justified in accepting his testimony
Mrinal Das & Ors v. State Of Tripura
(P Sathasivam, HL Gokhale SCJJ) [2012] 3 CLJ 1 [SC India]

Criminal Procedure Code, 1973 [India] - Sections 306, 307 and 308 - Tender of pardon to accomplice - Object of - Held, object of s. 306 is to allow pardon in cases where heinous offence is alleged to have been committed by several persons so that with aid of evidence of person granted pardon, offence may be unravelled - Such accomplice gets protection from prosecution on condition of making a full and true disclosure of circumstances within his knowledge concerning offence - Where approver suppresses anything material and essential within his knowledge or fails or refuses to comply with the condition on which tender was made, protection given to him can be lifted - Accused granted pardon ceases to be an accused and becomes witness for prosecution
Mrinal Das & Ors v. State Of Tripura
(P Sathasivam, HL Gokhale SCJJ) [2012] 3 CLJ 1 [SC India]

Criminal Procedure Code, 1973 [India] - Sections 378 and 386 - Appeal against acquittal - Powers of appellate court - Nature and scope - Restated
Mrinal Das & Ors v. State Of Tripura
(P Sathasivam, HL Gokhale SCJJ) [2012] 3 CLJ 1 [SC India]

Criminal Trial [India] - Appreciation of Evidence - Credibility of witness - Non-disclosure of incident by PW 1 to police officials travelling in police van in which deceased was taken to hospital - Held, was inconsequential since it is but natural that victim receiving gunshot injury needs to be admitted in hospital first and only thereafter next step including making complaint to police could be thought of - Further held, omission to mention some details in complaint was also irrelevant, since all relevant details were mentioned in complaint and omissions were only negligible - No justification to reject PW 1's testimony on such grounds
Mrinal Das & Ors v. State Of Tripura
(P Sathasivam, HL Gokhale SCJJ) [2012] 3 CLJ 1 [SC India]

Criminal Trial [India] - Witnesses - Eyewitness - Testimony - Offence involving large number of offenders - Corroboration - Necessity - Held, where large number of offenders are involved, it is necessary to seek corroboration at least from two or more witnesses as a measure of caution - Penal Code, 1860 - Section 302 r/w s. 34 - Large number of offenders - Principles for appreciation of evidence
Mrinal Das & Ors v. State Of Tripura
(P Sathasivam, HL Gokhale SCJJ) [2012] 3 CLJ 1 [SC India]

Criminal Trial [India] - Witnesses - Hostile witness - Testimony - Evidentiary value - Reiterated, evidence of hostile witness need not be rejected in its entirety but may be relied on for corroboration - Further reiterated, credible evidence of even hostile witnesses can form basis for conviction - In matter of appreciation of evidence of witnesses it is not number of witnesses but quality of their evidence that is important
Mrinal Das & Ors v. State Of Tripura
(P Sathasivam, HL Gokhale SCJJ) [2012] 3 CLJ 1 [SC India]

Trial - Failure to secure attendance of witnesses - Witnesses offered to defence by prosecution and crucial to defence case - Whether respondent's acquittal and discharge by High Court proper - Whether appeal to be dismissed
PP v. Asnawi Yusuf
(Hasan Lah, Sulong Matjeraie, Hishamudin Mohd Yunus JJCA) [2012] 3 CLJ 41 [CA]

EVIDENCE

Evidence Act, 1872 [India] - Section 133 r/w s. 114 Ill. (b) - Approver - Testimony - Evidentiary value - Corroboration - Rule of prudence - Held, though a conviction is not illegal merely because it proceeds on uncorroborated testimony of an approver, yet universal practice is not to convict upon testimony of an accomplice unless it is corroborated in material particulars - Insistence upon corroboration is based on rule of caution and is not merely a rule of law - Corroboration need not be in form of ocular testimony of witnesses and may even be in form of circumstantial evidence - Further held, once evidence of approver is held to be trustworthy, it must be shown that story given by him so far as an accused is concerned, must implicate accused concerned in such manner as to give rise to a conclusion of guilt beyond reasonable doubt - However, where evidence of approver is found unreliable, worth of his evidence is lost and such evidence, even by seeking corroboration cannot be foundation of conviction - On facts held, testimony of PW 6 approver was found reliable, which was corroborated by other PWs - Hence, conviction based thereon sustainable - Criminal Trial - Witnesses - Accomplice/Approver - Criminal Procedure Code, 1973, ss. 306 to 308
Mrinal Das & Ors v. State Of Tripura
(P Sathasivam, HL Gokhale SCJJ) [2012] 3 CLJ 1 [SC India]

Identification parade - Identification made of known person - Whether identification or recognition - Whether identification parade useful in such circumstances
PP v. AF (A Child) & Ors
(Mohd Yazid Mustafa J) [2012] 3 CLJ 117 [HC]

Witnesses - Interested witness - Strict assessment of testimony - Whether evidence independent - Whether corroboration required
PP v. AF (A Child) & Ors
(Mohd Yazid Mustafa J) [2012] 3 CLJ 117 [HC]

LAND LAW

Acquisition of land - Compensation - Delay of - Defendants' intended acquisition of plaintiff's land for major road project - Plaintiff's planning permission for development of land rejected - Acquisition of and compensation for land delayed for ten years - Whether plaintiff could sue for loss of use of land and loss of income from intended development - Whether defendants owed plaintiff duty of care not to cause loss - Relationship between parties - Whether damages for loss of interest on compensation award allowable
Strongkota Development Sdn Bhd v. Lembaga Lebuhraya Malaysia & Anor
(Zakaria Sam J) [2012] 3 CLJ 135 [HC]

TORT

Defamation - Libel - Press statements made by Inspector General of Police Malaysia and Attorney-General of Malaysia - Statements made linking HINDRAF organisation to terrorist groups, local gangsters and inciting racial hatred - Whether statements directed at respondent as legal adviser to HINDRAF - Whether HINDRAF a registered body - Whether action for defamation by respondent sustainable on public policy grounds - Application to strike out action - Dismissal of - Whether dismissal justified
Tan Sri Musa Dato' Hj Hassan & Ors v. Uthayakumar Ponnusamy
(KN Segara, Hishamudin Mohd Yunus JJCA, Abdul Aziz Rahim J) [2012] 3 CLJ 52 [CA]

Defamation - Slander - Whether a public body could sue for defamation - Whether plaintiffs had locus to maintain action against defendant - Whether words defamatory
Lembaga Kemajuan Tanah Persekutuan & Anor v. Dr Tan Kee Kwong
(Zabariah Mohd Yusof J) [2012] 3 CLJ 87 [HC]

Defamation - Slander - Whether words defamatory - Whether words referred to plaintiffs - Connection between individuals defamed and plaintiffs - Whether statements uttered by defendant cast adverse opinion about plaintiffs - Failure of - Whether proven that defendant uttered defamatory words to third party - Whether defendant responsible for publication of report
Lembaga Kemajuan Tanah Persekutuan & Anor v. Dr Tan Kee Kwong
(Zabariah Mohd Yusof J) [2012] 3 CLJ 87 [HC]

Legal Network Series Articles

1. RETHINKING ON DILUTION OF CUSTOM WITH RELIGION: AN EXPOSITION OF THE NIGERIAN AND MALAYSIAN LEGAL SYSTEMS ^{[Read excerpt]}
    BY: ABDULKADIR OWOLABI A, AKANBI M.M., ABDULKADIR B.A., SAMBO O.A., IMAM-TAMIM M.K. [2012] 1 LNS(A) xxx

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