Bulletin_19

CLJ Bulletin, Issue 2011, Vol 19

20 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 4 (Part 2) 2011

1. Legislation Highlights

Principal Acts

NUMBER
TITLE

DATE COMING INTO FORCE

REPEALING

ACT 718 Agensi Inovasi Malaysia Act 2010 15 April 2011 [PU(B) 175/2011] - Nil -

ACT 719 Finance Act 2011
See Section 3 Income Tax Act 1967;

Section 26 Stamp Act 1949;

Section 30 Petroleum Income Tax Act;

Section 33 Real Property Gains Tax Act 1976
- Nil -

Amending Acts

NUMBER
TITLE

DATE COMING INTO FORCE

AMENDING

ACT A1387 Malaysian Timber Industry Board (Incorporation) (Amendment) Act 2010 Not Yet In Force ACT 105

ACT A1388 Supply Act 2011 31 December 2010 - Nil -

ACT A1389 Bank Simpanan Nasional (Amendment) Act 2011 24 February 2011 [PU (B) 79/2011] ACT 146

ACT A1390 Moneylenders (Amendment) Act 2011 15 April 2011 [PU(B) 174/2011] ACT 400

ACT A1391 Road Transport (Amendment) Act 2011 31 January 2011 [PU(B) 37/2011] ACT 333

PU(A)

NUMBER TITLE DATE COMING INTO FORCE
PRINCIPAL ACT NO

PU(A) 142/2011 Customs (Anti-Dumping Duties) Order 2011 20 April 2011 ACT 504 & ACT 235

PU(A) 143/2011 Food Irradiation Regulations 2011 21 April 2011 ACT 281

PU(A) 144/2011 Customs (Values) (Crude Petroleum Oil) (No 8) Order 2011 21 April 2011 ACT 235

PU(A) 145/2011 Customs (Values) (Palm Oil) (No 17) Order 2011 25 April 2011 ACT 235

PU(A) 146/2011 Road Transport (Stands For Public Service Vehicles) (Federal Territory Of Kuala Lumpur) (No 2) Order 2011 25 April 2011 ACT 333

PU(B)

NUMBER TITLE DATE COMING INTO FORCE
PRINCIPAL ACT NO

PU(B) 207/2011 Reservation Of Land For Public Purpose - Federal Territory Of Kuala Lumpur: Mukim - Petaling 21 April 2011 ACT 56/1965

PU(B) 208/2011 Reservation Of Land For Public Purpose - Federal Territory Of Kuala Lumpur: Mukim - Petaling 21 April 2011 ACT 56/1965

PU(B) 209/2011 Revocation Of Reservation Of Land For Public Purpose - Federal Territory Of Kuala Lumpur: Town - Kuala Lumpur 21 April 2011 ACT 56/1965

PU(B) 210/2011 Commission To Enquire Into The Death Of Teoh Beng Hock - Enlargement Of Time 21 April 2011 ACT 119

PU(B) 211/2011 Declaration Under Section 124a 25 April 2011 ACT 333

2. Articles

a) Legal Network Series Articles

1. Murphy's Law For The Digital Age* ^{[Read
excerpt]}
By Des Polden, Polden Legal

2. Freedom Of Expression And The Role Of A Supreme Court - Some Issues From Across The World ^{[Read
excerpt]}
By The RT Hon Lady Justice Arden DBE*

3. Latest Cases

a) Legal Network Series

CITATION TITLE SUBJECT

[2009] 1 LNS 506 [HC] Foo Tye Electrical Engineering Sdn Bhd v. SESCO

CIVIL PROCEDURE: Bill of costs - Taxation - Two sets of getting up fee - Factors to be considered by court - Complexity and novelty involved - Degree of specialized skill and knowledge - Voluminous documents involved - Place and circumstances in which the business involved are transacted - Importance of cause or matter to client - Amount or value of money involved in excess of a million ringgit

[2009] 1 LNS 513 [HC] Md Yusri Sahadan v. PP

CRIMINAL PROCEDURE: Appeal - Appeal against conviction and sentence - Offences under Banking and Financial Institutions Act 1989 and criminal breach of trust - Whether Sessions Court Judge (SCJ) applied wrong standard of proof - Whether appellant prejudiced - Whether SCJ's consideration of defence proper - SCJ amending charge and invoking s. 106(1) of BAFIA - Whether justified

CRIMINAL PROCEDURE: Appeal - Appeal against sentence - Whether sentence under amended BAFIA charge manifestly inadequate - Whether SCJ applied correct principles of sentencing - Offences committed in a series of transactions about same time of BAFIA charge - Sentence of 2 years imprisonment imposed on BAFIA charge - Whether any error in law by SCJ - Whether any basis to interfere with sentence

[2009] 1 LNS 540 [HC] Per: Shaharuddin Md Idros; Ex-Parte: Esso Malaysia Berhad

BANKRUPTCY: Jurisdiction - Jurisdiction of court - Whether proper for court to go behind judgment on which debt based

BANKRUPTCY: Creditor's petition - Lack of authority of person who signed petition on behalf of judgment creditor - Non-compliance with strict provisions of r. 215, Bankruptcy Rules - Whether fatal to petition

CIVIL PROCEDURE: Res judicata - Whether applicable - Issue that judgment debtor was no longer a partner of firm when action brought against Syarikat Shah Dessa never canvassed - Whether judgment debtor's withdrawal from business prior to supply of goods by Esso and commencement of primary suit an effective defence to Esso's claim - Whether court could consider this issue to ascertain whether a valid debt subsists

PARTNERSHIP: Liabilities of partners - Debt - Judgment debtor retired in November 1982 but withdrawal registered in May 1988 - Whether judgment debtor liable for debt of Syarikat Shah Dessa incurred in 1984 - Esso aware of judgment debtor's withdrawal in 1989 prior to issuance of bankruptcy notice - Effect thereof - Whether any miscarriage of justice warranting dismissal of Creditor's Petition

[2009] 1 LNS 542 [HC] PP v. Thurairaj Arulnathan

CRIMINAL LAW: Penal Code - Sections 149, 302 - Murder - Charge of unlawful assembly with common object to cause grievous hurt or injury with dangerous weapons - Numerous slash wounds on deceased's limbs but not such as to cause instantaneous death - Whether sufficient evidence adduced that accused intended to kill deceased - Whether amendment of charge appropriate

CRIMINAL PROCEDURE: Defence - Denial - Accused denying participation in unlawful assembly - Accused claiming he was present in area and saw an unlawful assembly on same street - Whether any thread of continuity or reason in the accused's version of events

CRIMINAL PROCEDURE: Witness - Defence contending that two material witnesses were not called - Whether absence of witnesses threw doubt on case against accused

[2009] 1 LNS 551 [HC] PP v. Samugem Pakri & Ors

CRIMINAL LAW: Dangerous Drugs Act 1952 - Section 39B(2) - Trafficking - Whether any sale of cannabis by three accused persons to PW4 - Delivery of cannabis to PW4 without physical handing over of agreed price - Whether transaction falling within "selling" in definition of "trafficking" - Whether evidence showed three accused had common intention to sell cannabis to PW4 - Whether prima facie case of trafficking established

CRIMINAL PROCEDURE: Charge - Alternative charge - Doing an act preparatory to trafficking cannabis - Clear evidence that second accused was prepared to sell drugs - Whether prima facie case proven against three accused in respect of alternative charge in furtherance of common intention

CRIMINAL PROCEDURE: Defence - Denial - Accused claiming they meant to deliver cigarettes to PW4 and not cannabis - Whether bare denial sufficient to cast a reasonable doubt on prosecution's case in respect of principal charge of trafficking - Whether prosecution proved case against all three accused beyond reasonable doubt

CITATION	TITLE	SUBJECT
[2009] 1 LNS 506 [HC]	Foo Tye Electrical Engineering Sdn Bhd v. SESCO	CIVIL PROCEDURE: Bill of costs - Taxation - Two sets of getting up fee - Factors to be considered by court - Complexity and novelty involved - Degree of specialized skill and knowledge - Voluminous documents involved - Place and circumstances in which the business involved are transacted - Importance of cause or matter to client - Amount or value of money involved in excess of a million ringgit
[2009] 1 LNS 513 [HC]	Md Yusri Sahadan v. PP	CRIMINAL PROCEDURE: Appeal - Appeal against conviction and sentence - Offences under Banking and Financial Institutions Act 1989 and criminal breach of trust - Whether Sessions Court Judge (SCJ) applied wrong standard of proof - Whether appellant prejudiced - Whether SCJ's consideration of defence proper - SCJ amending charge and invoking s. 106(1) of BAFIA - Whether justified CRIMINAL PROCEDURE: Appeal - Appeal against sentence - Whether sentence under amended BAFIA charge manifestly inadequate - Whether SCJ applied correct principles of sentencing - Offences committed in a series of transactions about same time of BAFIA charge - Sentence of 2 years imprisonment imposed on BAFIA charge - Whether any error in law by SCJ - Whether any basis to interfere with sentence
[2009] 1 LNS 540 [HC]	Per: Shaharuddin Md Idros; Ex-Parte: Esso Malaysia Berhad	BANKRUPTCY: Jurisdiction - Jurisdiction of court - Whether proper for court to go behind judgment on which debt based BANKRUPTCY: Creditor's petition - Lack of authority of person who signed petition on behalf of judgment creditor - Non-compliance with strict provisions of r. 215, Bankruptcy Rules - Whether fatal to petition CIVIL PROCEDURE: Res judicata - Whether applicable - Issue that judgment debtor was no longer a partner of firm when action brought against Syarikat Shah Dessa never canvassed - Whether judgment debtor's withdrawal from business prior to supply of goods by Esso and commencement of primary suit an effective defence to Esso's claim - Whether court could consider this issue to ascertain whether a valid debt subsists PARTNERSHIP: Liabilities of partners - Debt - Judgment debtor retired in November 1982 but withdrawal registered in May 1988 - Whether judgment debtor liable for debt of Syarikat Shah Dessa incurred in 1984 - Esso aware of judgment debtor's withdrawal in 1989 prior to issuance of bankruptcy notice - Effect thereof - Whether any miscarriage of justice warranting dismissal of Creditor's Petition
[2009] 1 LNS 542 [HC]	PP v. Thurairaj Arulnathan	CRIMINAL LAW: Penal Code - Sections 149, 302 - Murder - Charge of unlawful assembly with common object to cause grievous hurt or injury with dangerous weapons - Numerous slash wounds on deceased's limbs but not such as to cause instantaneous death - Whether sufficient evidence adduced that accused intended to kill deceased - Whether amendment of charge appropriate CRIMINAL PROCEDURE: Defence - Denial - Accused denying participation in unlawful assembly - Accused claiming he was present in area and saw an unlawful assembly on same street - Whether any thread of continuity or reason in the accused's version of events CRIMINAL PROCEDURE: Witness - Defence contending that two material witnesses were not called - Whether absence of witnesses threw doubt on case against accused
[2009] 1 LNS 551 [HC]	PP v. Samugem Pakri & Ors	CRIMINAL LAW: Dangerous Drugs Act 1952 - Section 39B(2) - Trafficking - Whether any sale of cannabis by three accused persons to PW4 - Delivery of cannabis to PW4 without physical handing over of agreed price - Whether transaction falling within "selling" in definition of "trafficking" - Whether evidence showed three accused had common intention to sell cannabis to PW4 - Whether prima facie case of trafficking established CRIMINAL PROCEDURE: Charge - Alternative charge - Doing an act preparatory to trafficking cannabis - Clear evidence that second accused was prepared to sell drugs - Whether prima facie case proven against three accused in respect of alternative charge in furtherance of common intention CRIMINAL PROCEDURE: Defence - Denial - Accused claiming they meant to deliver cigarettes to PW4 and not cannabis - Whether bare denial sufficient to cast a reasonable doubt on prosecution's case in respect of principal charge of trafficking - Whether prosecution proved case against all three accused beyond reasonable doubt

b. CLJ Volume 4 (Part 2) 2011

COURT

FEDERAL COURT

Ibrahim Mohamad & Anor v. PP
Zulkefli Makinudin, James Foong, Abdull Hamid Embong FCJJ
(Criminal Law; Evidence - Trafficking in 38,499.68 grams cannabis - Witness) [2011] 4 CLJ 113 [FC]

COURT OF APPEAL

Balamurali Muthusamy v. PP
Suriyadi Halim Omar, Hasan Lah, Ahmad Maarop JJCA
(Criminal Law - Penal Code - Murder - Appeal against death sentence under s. 302) [2011] 4 CLJ 128 [CA]

HIGH COURT

Alcatel-Lucent Malaysia Sdn Bhd & Anor v. Ketua Pengarah Hasil Dalam Negeri
Aziah Ali J
(Revenue Law - Income tax - Obligation to deduct withholding tax) [2011] 4 CLJ 142 [HC]

Chan Yiew Hock v. Koh Hong Toong & Anor; Majlis Peguam Malaysia (Intervener)
Lau Bee Lan J
(Legal Profession - Advocates and solicitors - Misconduct - Disciplinary proceedings) [2011] 4 CLJ 160 [HC]

Karpal Singh Ram Singh v. Ketua Hakim Negara
Aziah Ali J
(Administrative Law; Civil Procedure; Public Authorities; Public Servants - Judicial review - Mandamus - Chief Justice) [2011] 4 CLJ 179 [HC]

Re Estate Of Tan Sri Datuk Syed Kechik, Deceased; Puan Sri Sofiah Moo & Ors (Petitioners)
Lee Swee Seng JC
(Succession - Letters of administration - Competing applications) [2011] 4 CLJ 196 [HC]

Tiagaraja Palaniandy v. Moganadas Maniam & Anor
Vazeer Alam Mydin Meera JC
(Land Law; Civil Procedure; Evidence; Legal Profession - Forged transfer - Expert evidence) [2011] 4 CLJ 215 [HC]

SUBJECT INDEX

ADMINISTRATIVE LAW

Judicial review - Application for - Mandamus - Complaint by applicant against Chief Justice of Malaysia (respondent) - Locus standi of applicant - Whether applicant failed to show he fell within ambit of s. 44(1)(a) Specific Relief Act 1950 - Whether applicant's personal rights injured if respondent did not perform statutory duties - Absence of any imperative legal duty on respondent to act in manner dictated by applicant - Whether applicant failed to satisfy s. 44(1)(b) of same Act - Whether application frivolous and vexatious - Specific Relief Act 1950, s. 44(1)(a), (b) - Judges' Code of Ethics 2009, ss. 12, 13
Karpal Singh Ram Singh v. Ketua Hakim Negara
(Aziah Ali J) [2011] 4 CLJ 179 [HC]

Remedies - Mandamus - Application for leave - Complaint by applicant against Chief Justice of Malaysia (respondent) - Locus standi of applicant - Whether applicant failed to show he fell within ambit of s. 44(1)(a) Specific Relief Act 1950 - Whether applicant's personal rights injured if respondent did not perform statutory duties - Absence of any imperative legal duty on respondent to act in manner dictated by applicant - Whether applicant failed to satisfy s. 44(1)(b) of same Act - Whether application frivolous and vexatious - Specific Relief Act 1950, s. 44(1)(a), (b) - Judges' Code of Ethics 2009, ss. 12, 13
Karpal Singh Ram Singh v. Ketua Hakim Negara
(Aziah Ali J) [2011] 4 CLJ 179 [HC]

CIVIL PROCEDURE

Judge - Chief Justice - Mandamus - Complaint by applicant against Chief Justice of Malaysia (respondent) - Locus standi of applicant - Whether applicant failed to show he fell within ambit of s. 44(1)(a) Specific Relief Act 1950 - Whether applicant's personal rights injured if respondent did not perform statutory duties - Absence of any imperative legal duty on respondent to act in manner dictated by applicant - Whether applicant failed to satisfy s. 44(1)(b) of same Act - Whether application frivolous and vexatious - Specific Relief Act 1950, s. 44(1)(a), (b) - Judges' Code of Ethics 2009, ss. 12, 13
Karpal Singh Ram Singh v. Ketua Hakim Negara
(Aziah Ali J) [2011] 4 CLJ 179 [HC]

Trial - No case to answer - Whether there was a submission of no case to answer - Effect of no case to answer - Whether plaintiff's evidence remained uncontroverted and unrebutted
Tiagaraja Palaniandy v. Moganadas Maniam & Anor
(Vazeer Alam Mydin Meera JC) [2011] 4 CLJ 215 [HC]

CRIMINAL LAW

Dangerous Drugs Act 1952 - Section 39B(1)(a) - Trafficking in 38,499.68 grams cannabis - Whether accused had custody and control of drugs - Whether failure to call registered owner of vehicle led to gaps in prosecution case - Whether act of accused fleeing should be weighed against circumstances of case - Whether accused lacked mens rea of knowledge - Whether conviction and death sentence substituted with one of possession under s. 6 DDA - Evidence Act 1950, ss. 8(2), 9, 32(1)(i) - Dangerous Drugs Act 1952, ss. 37(d),(da)(vi), 39A(2), 39B(2) - Penal Code, s. 34
Ibrahim Mohamad & Anor v. PP
(Zulkefli Makinudin, James Foong, Abdull Hamid Embong FCJJ) [2011] 4 CLJ 113 [FC]

Penal Code - Section 300 - Murder - Appeal against death sentence under s. 302 - Victims doused with petrol and set on fire - Whether defence of intoxication proved - Whether prosecution case established beyond reasonable doubt
Balamurali Muthusamy v. PP
(Suriyadi Halim Omar, Hasan Lah, Ahmad Maarop JJCA) [2011] 4 CLJ 128 [CA]

EVIDENCE

Burden of proof - Person who alleged fact had to prove it - Whether defendant to prove it was bona fide purchaser for value - Whether defendant succeeded in proving it was bona fide purchaser for value
Tiagaraja Palaniandy v. Moganadas Maniam & Anor
(Vazeer Alam Mydin Meera JC) [2011] 4 CLJ 215 [HC]

Expert evidence - Handwriting - Whether expert evidence conclusive proof of forgery - Whether expert evidence corroborated plaintiff's allegation
Tiagaraja Palaniandy v. Moganadas Maniam & Anor
(Vazeer Alam Mydin Meera JC) [2011] 4 CLJ 215 [HC]

Witness - Failure of prosecution to call witness - Failure to call registered owner of vehicle wherein drugs were found - Whether gaps in prosecution case - Evidence Act 1950, ss. 8(2), 9, 32(1)(i) - Dangerous Drugs Act 1952, ss. 6, 37(d),(da)(vi), 39A(2), 39B(2) - Penal Code, s. 34
Ibrahim Mohamad & Anor v. PP
(Zulkefli Makinudin, James Foong, Abdull Hamid Embong FCJJ) [2011] 4 CLJ 113 [FC]

LAND LAW

Indefeasibility of title and interests - Forged transfer - Whether expert evidence conclusive proof of forgery - Whether defendant bona fide purchaser - National Land Code, proviso to s. 340(3)
Tiagaraja Palaniandy v. Moganadas Maniam & Anor
(Vazeer Alam Mydin Meera JC) [2011] 4 CLJ 215 [HC]

LEGAL PROFESSION

Advocates and solicitors - Misconduct - Struck off from Rolls of Advocates & Solicitors - Appeal - Advocate and solicitors converting client's monies to his own use - Whether proceedings before Disciplinary Board valid and proper - Whether breach of rules of natural justice - Whether court ought to interfere
Chan Yiew Hock v. Koh Hong Toong & Anor; Majlis Peguam Malaysia (Intervener)
(Lau Bee Lan J) [2011] 4 CLJ 160 [HC]

Disciplinary proceedings - Disciplinary Board (DB) - DB striking off advocate and solicitor from Rolls of Advocates & Solicitors - Whether DB properly constituted - Whether Chairman of DB qualified to hold office - Whether deliberations of DB chaired by Vice-President valid - Whether proceedings carried on in breach of rules of natural justice - Complainant absent from hearing - Whether DB erred in classifying case under s. 103B Legal Profession Act 1976 - Whether DB failed to caution appellant regarding intention to impose punishment more severe than that recommended by Disciplinary Committee - Whether court ought to interfere - Legal Profession Act 1976, ss. 93(3), (4), 103E(4)
Chan Yiew Hock v. Koh Hong Toong & Anor; Majlis Peguam Malaysia (Intervener)
(Lau Bee Lan J) [2011] 4 CLJ 160 [HC]

Liability as fiduciary - Conflict of interest - Whether conduct of solicitor in land transaction in conflict of interest
Tiagaraja Palaniandy v. Moganadas Maniam & Anor
(Vazeer Alam Mydin Meera JC) [2011] 4 CLJ 215 [HC]

PUBLIC AUTHORITIES

Remedies - Judicial review - Mandamus - Complaint by applicant against Chief Justice of Malaysia (respondent) - Locus standi of applicant - Whether applicant failed to show he fell within ambit of s. 44(1)(a) Specific Relief Act 1950 - Whether applicant's personal rights injured if respondent did not perform statutory duties - Absence of any imperative legal duty on respondent to act in manner dictated by applicant - Whether applicant failed to satisfy s. 44(1)(b) of same Act - Whether application frivolous and vexatious - Specific Relief Act 1950, s. 44(1)(a), (b) - Judges' Code of Ethics 2009, ss. 12, 13
Karpal Singh Ram Singh v. Ketua Hakim Negara
(Aziah Ali J) [2011] 4 CLJ 179 [HC]

PUBLIC SERVANTS

Civil proceedings - Mandamus - Complaint by applicant against Chief Justice of Malaysia (respondent) - Locus standi of applicant - Whether applicant failed to show he fell within ambit of s. 44(1)(a) Specific Relief Act 1950 - Whether applicant's personal rights injured if respondent did not perform statutory duties - Absence of any imperative legal duty on respondent to act in manner dictated by applicant - Whether applicant failed to satisfy s. 44(1)(b) of same Act - Whether application frivolous and vexatious - Specific Relief Act 1950, s. 44(1)(a), (b) - Judges' Code of Ethics 2009, ss. 12, 13
Karpal Singh Ram Singh v. Ketua Hakim Negara
(Aziah Ali J) [2011] 4 CLJ 179 [HC]

REVENUE LAW

Income tax - Obligation to deduct withholding tax - Whether applicant duty bound to make or deduct any withholding tax in relation to services relating to provision of global network communication - Services wholly performed outside Malaysia - Whether withholding tax payable pursuant to s. 109 and/or s. 109B Income Tax Act 1967 - Whether payment for services were royalties and therefore subject to withholding tax
Alcatel-Lucent Malaysia Sdn Bhd & Anor v. Ketua Pengarah Hasil Dalam Negeri
(Aziah Ali J) [2011] 4 CLJ 142 [HC]

SUCCESSION

Letters of administration - Competing applications - Petition by widow and two daughters - Caveat against grant of administration filed by son - Joint administration, whether proper - Considerations - Rights of all persons interested in estate - Probate and Administration Act 1959, s. 30 - Whether any special circumstances to exclude caveator - Expeditious and economical administration - Wishes of majority - Objectionable persons - Syariah, 'faraid' certificate and 'harta sepencarian'
Re Estate Of Tan Sri Datuk Syed Kechik, Deceased; Puan Sri Sofiah Moo & Ors (Petitioners)
(Lee Swee Seng JC) [2011] 4 CLJ 196 [HC]

CASE OF THE WEEK

KETUA POLIS NEGARA & ANOR v. GOH CHING HUAT

ADMINISTRATIVE LAW: Dismissal from service - Disciplinary proceedings - Letter notifying termination signed by someone other than Disciplinary Authority - Whether termination must be notified by the Disciplinary Authority - Public Officers (Conduct and Discipline) (Chapter D) General Orders 1980, GO 26 - Federal Constitution, art. 135(2)

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NUMBER	TITLE	DATE COMING INTO FORCE	AMENDING
ACT A1387	Malaysian Timber Industry Board (Incorporation) (Amendment) Act 2010	Not Yet In Force	ACT 105
ACT A1388	Supply Act 2011	31 December 2010	- Nil -
ACT A1389	Bank Simpanan Nasional (Amendment) Act 2011	24 February 2011 [PU (B) 79/2011]	ACT 146
ACT A1390	Moneylenders (Amendment) Act 2011	15 April 2011 [PU(B) 174/2011]	ACT 400
ACT A1391	Road Transport (Amendment) Act 2011	31 January 2011 [PU(B) 37/2011]	ACT 333