Legal Network Series

[2013] 1 LNS 88	MOHD KUSAINI MAHMUD v. PP	CRIMINAL PROCEDURE: Trial - Dangerous Drugs Act 1952 - Prosecution's case - Prima facie case - Whether a reasonable inference could be drawn that accused had knowledge of the drugs from the place where the drugs were found - Whether accused was in possession of the drugs found in the room - Whether any break in chain in evidence of how drugs were handled marked and stored - Whether drugs produced in court were the same drugs seized by police from accused's room - Whether prosecution proved a prima facie case against accused CRIMINAL PROCEDURE: Trial - Dangerous Drugs Act 1952 - Defence's story - Accused purportedly shared room with friend named "Aizat" - Whether failure of accused to give further details of friend showed that friend either did not exist and even if existed had nothing to do with drugs in his room - Whether failure to call this friend raised an adverse inference against accused - Whether accused failed to raise any reasonable doubt - Whether accused also failed to rebut presumption of trafficking - Whether prosecution proved its case beyond reasonable doubt
[2013] 1 LNS 90	KRISHNAVENI MUNUSAMY & ANOR v. BAWANESWARY R CHINNIAH & ORS	CIVIL PROCEDURE: Locus standi - Capacity – 1st plaintiff and deceased divorced - Whether 1st plaintiff had locus standi to bring action since she was not the lawful widow of deceased - Issue whether 1st nomination was still valid or whether 2nd nomination superseded 1st nomination - Whether 1st plaintiff was bringing the action in her capacity as a nominee under the 1st nomination and not in her capacity as the lawful widow of deceased – 1st plaintiff's capacity to bring the action as a next friend of the two children - Whether 1st plaintiff had locus standi to maintain this action as an alleged nominee under the 1st nomination - Whether 1st plaintiff had the locus standi to bring this action for and on behalf of the two children PROVIDENT FUND: Beneficiary - Nomination - Whether 1st nomination or 2nd nomination of deceased valid - Whether 1st nomination revoked or cancelled by deceased and superseded by 2nd nomination - Whether 1st nomination ceased to have effect under regulation 7(1)(b) of the EPF Regulations 2001 when deceased made second or subsequent nomination under rule 34(2) of the EPF Rules 1991 - Whether deceased acted under regulation 7(1)(c) of the EPF Regulations 2001 and this sufficed to meet requirements of that regulation for 1st nomination to cease to have effect - Whether 1st plaintiff had legal claim to amount standing to deceased's credit in the EPF - Whether she was no longer a nominee of deceased when deceased made 2nd nomination which revoked 1st nomination - Whether two children had legal claim to deceased's EPF money since they had not been nominated as deceased's nominees for such money STATUTORY INTERPRETATION: Construction of statutes - Conjunctive or disjunctive - Whether regulation 7(1)(a), (b) and (c) of the EPF Regulations 2001 should be read disjunctively in view of the connecting word "or" that appears between paragraphs (b) and (c) of regulation 7- Whether would be totally illogical to read regulation 7(1)(a), (b) and (c) conjunctively, and even fatal to plaintiff if regulation 7(1) (a) had to be read together with regulation 7(1) (b) and (c) - Whether such interpretation would mean that 1st plaintiff's claim would be defeated - Whether such interpretation as contended by 1st plaintiff would mean nominee or 1st plaintiff had to pass away first before her ex-husband/deceased could make 2nd nomination
[2013] 1 LNS 113	SPENCER LU KHEE KIUN v. UNIMEKAR METALS SDN BHD	CONTRACT: Employment contract - Variation - Plaintiff present at the 2010 meeting and participated in the discussion on revision of retirement age - Plaintiff continued to work for defendant without any protest - Whether revision of retirement age from 60 to 55 years old was valid in law - Whether plaintiff was aware and accepted new term of employment - Whether plaintiff was bound by the 2010 revision - Whether plaintiff had knowledge of the 'modus operandi' of defendant in respect of retirement age policy
[2013] 1 LNS 114	WISTANA CONSTRUCTION (LANGKAWI SDN BHD v. RAFIDI ABDULLAH & ORS	CIVIL PROCEDURE: Pleadings - Further and better particulars - Defendants' attempt to impose 'conditions' on payments made towards settlement despite being notified that would not be acceptable - Whether an attempt to unreasonably claim further advantage which defendants were not entitled to do - Failure to furnish further and better particulars ordered by the court in the proper format despite the courts further direction and indulgences - Whether amounted to a deliberate and calculated affront on the integrity of the court's directions and orders - Whether Statement of Defence should be struck out and Judgment entered for plaintiff CIVIL PROCEDURE: Trial - Case Management - Orders that Statement of Defence be struck out and Judgment be entered in favour of plaintiff made during pretrial case management - Whether the court was vested with wide powers during pre-trial case management process to make appropriate orders and directions to secure the just, expeditious and economical disposal of the action or proceedings - Whether orders made were well within Court's powers
[2013] 1 LNS 115	PUAH KIM YEN & ORS v. MAJU STEEL SDN BHD	CIVIL PROCEDURE: Res judicata - Judgment - Earlier action - Whether res judicata applied such that having failed to introduce fresh evidence in the motion before the Court of Appeal, plaintiffs were precluded from commencing a fresh tort action to impeach the judgment of Court in a 2004 suit - Whether the court may decline to apply res judicata where to do so would lead to an unjust result - Prima facie evidence which could not be retrieved during trial in a 2004 suit now found and forthcoming - Whether proper procedure was a fresh action to impeach the original judgment CIVIL PROCEDURE: Striking out - Writ and Statement of claim - Application for - Questions raised on the nature and quality of evidence retrieved which was not previously forthcoming - Whether Court should allow that complaint to be heard in a fresh cause of action to impeach the judgment of the Court in a 2004 suit

CLJ 2014 Volume 3 (Part 7)

COURT

FEDERAL COURT

Adiswaran Tharumaputrintar v. PP & Other Appeals
Richard Malanjum CJ (Sabah & Sarawak), Abdull Hamid Embong, Ahmad Maarop, Hasan Lah, Zaleha Zahari FCJJ
(Criminal Law; Evidence - Penal Code - Common intention to commit murder - Whether ingredients of murder proved against accused persons) [2014] 3 CLJ 813 [FC]

COURT OF APPEAL

Yang Dipertua Majlis Daerah Gua Musang v. Pedik Busu & Ors
Abdul Wahab Patail, David Wong Dak Wah, Tengku Maimun JJCA
(Local Government - Church building demolished by local authority for non-compliance with demolition order - Street, Drainage and Building Act 1974, s. 72(4), (5)) [2014] 3 CLJ 847 [CA]

HIGH COURT

Kasai Reiko v. Annie Lor Lee Fong & Ors; Public Bank Bhd (Intervener)
Lee Swee Seng JC
(Trusts; Land Law - Constructive trust - Property - Registered proprietors of apartments held properties on trust for actual buyer - False representation) [2014] 3 CLJ 869 [HC]

Low Poh Kim v. Pengarah Tanah Dan Galian Negeri Selangor & Ors
Prasad Sandosham Abraham J
(Land Law - Transfer - Fraud - Whether void and insufficient instruments used to dispossess original registered owner of land - Whether transfers defeasible) [2014] 3 CLJ 897 [HC]

Measat Broadcast Network Systems Sdn Bhd v. AV Asia Sdn Bhd
Nallini Pathmanathan J
(Civil Procedure - Security - Interim measure in pending arbitration proceedings - Jurisdiction - Whether High Court had power to grant remedy) [2014] 3 CLJ 915 [HC]

SUBJECT INDEX

CIVIL PROCEDURE

Security - Security for plaintiff's costs - Interim measure in pending arbitration proceedings - Jurisdiction - Whether High Court had power to grant remedy - Whether application for security flawed - Whether defendant in financial position to pay plaintiff's costs - Whether there was real possibility that plaintiff would be deprived of any order of costs made in its favour - Whether application ought to be granted - Quantum - Assessment of
Measat Broadcast Network Systems Sdn Bhd v. AV Asia Sdn Bhd
(Nallini Pathmanathan J) [2014] 3 CLJ 915 [HC]

CRIMNAL LAW

Penal Code - Sections 34, 302 - Murder - Circumstantial evidence - Whether conclusively pointing towards guilt of accused persons - Common intention - Whether sufficiently proved by prosecution - Whether conclusively showed that death was caused only by first accused - Whether prima facie case proved against other accused persons
Adiswaran Tharumaputrintar v. PP & Other Appeals
(Richard Malanjum CJ (Sabah & Sarawak), Abdull Hamid Embong, Ahmad Maarop, Hasan Lah, Zaleha Zahari FCJJ) [2014] 3 CLJ 813 [FC]

Penal Code - Sections 34, 302 - Murder - Common intention to commit murder - Proof - Whether ingredients of murder proved against accused persons - Whether evidence only pointed to guilt of first accused - Whether no evidence that other accused present at scene as confederates of first accused
Adiswaran Tharumaputrintar v. PP & Other Appeals
(Richard Malanjum CJ (Sabah & Sarawak), Abdull Hamid Embong, Ahmad Maarop, Hasan Lah, Zaleha Zahari FCJJ) [2014] 3 CLJ 813 [FC]

EVIDENCE

Adverse inference - Murder - Failure to call important witness - Whether fatal to prosecution's case - Whether sufficient effort made to trace witness - Whether adverse inference ought to be invoked - Penal Code s. 34, 302 - Evidence Act 1950, s. 114(g)
Adiswaran Tharumaputrintar v. PP & Other Appeals
(Richard Malanjum CJ (Sabah & Sarawak), Abdull Hamid Embong, Ahmad Maarop, Hasan Lah, Zaleha Zahari FCJJ) [2014] 3 CLJ 813 [FC]

LAND LAW

Sale and purchase - Transfer purchase of properties in Malaysia by foreigner - False representation that properties could only be registered in name of Malaysian - Whether transfer to Malaysian tainted with fraud - Whether Malaysian held properties on constructive trust
Kasai Reiko v. Annie Lor Lee Fong & Ors; Public Bank Bhd (Intervener)
(Lee Swee Seng JC) [2014] 3 CLJ 869 [HC]

Transfer - Fraud - Whether void and insufficient instruments used to dispossess original registered owner of land - Whether transfers defeasible - Whether inefficiency of land title registering authorities facilitated commission of fraud - Whether proper procedures for issue of computerised land title to replace old document of title not followed - National Land Code, s. 5(A) and 14th Schedule
Low Poh Kim v. Pengarah Tanah Dan Galian Negeri Selangor & Ors
(Prasad Sandosham Abraham J) [2014] 3 CLJ 897 [HC]

LOCAL GOVERNMENT

Buildings - Demolition order - Local authority serving demolition order on church building - Church building demolished by local authority for non-compliance with demolition order - Church building not located within jurisdiction of local authority - Failure of local authority to give 30 days' notice before demolition - Whether demolition lawful - Whether local authority liable to pay damages - Whether local authority liable to pay exemplary damages - Street, Drainage & Building Act 1974, s. 72(4), (5)
Yang Dipertua Majlis Daerah Gua Musang v. Pedik Busu & Ors
(Abdul Wahab Patail, David Wong Dak Wah, Tengku Maimun JJCA) [2014] 3 CLJ 847 [CA]

TRUSTS

Constructive trust - Property - Registered proprietors of apartments held properties on trust for actual buyer - False representation - Whether transfers of properties fraudulent and should be set aside - Whether interest of chargee bank not privy to fraud protected under s. 340 of National Land Code - Whether chargee bank bona fide purchaser for valuable consideration and had acquired indefeasible interest
Kasai Reiko v. Annie Lor Lee Fong & Ors; Public Bank Bhd (Intervener)
(Lee Swee Seng JC) [2014] 3 CLJ 869 [HC]