CLJ Bulletin, Vol 2007, Issue 20
8 June 2007
CLJ Law MALAYSIA
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| New This Week - | 1. CLJ June (Part 1) 2007 |
| 2. CLJ Supp June (Part 1) 2007 |
COURT
FEDERAL COURT
Al Rashidy Kassim & Ors v. Rosman Roslan
(Succession - Administration - Action for possession of land) [2007] 3 CLJ
361
COURT OF APPEAL
Dato' Seri Anwar Ibrahim v. Perdana Menteri Malaysia & Anor
(Constitutional law - Dismissal of Minister - Federal Constitution, art. 43(5)) [2007] 3 CLJ
377
Datuk Bandar Kuala Lumpur v. Abdul Aziz Mohamed Ginan & Ors
(Appeal against decision of High Court granting an interim injunction restraining
defendant from acting upon eviction notices served upon plaintiffs until full trial of
case) [2007]
3 CLJ 399
Glamour Green Sdn Bhd v. Ambank Bhd & Ors & Another Appeal
(Contract - Loan - Construction of provisions of documents involved in transaction)
[2007] 3
CLJ 413
HIGH COURT
Ragu Subramaniam v. Timbalan Menteri Keselamatan Dalam Negeri, Malaysia & Ors
(Preventive detention - Application for habeas corpus) [2007] 3 CLJ
440
Rangkaian Hotel Seri Malaysia Sdn Bhd v. Husni Hussain
(Application by plaintiff for injunction against defendant from continuing to manage
and operate hotel) [2007] 3 CLJ
446
SUBJECT INDEX
BANKING
Securities for advances - Loan - Plaintiff entered into loan agreement with first
defendant in order to pay off balance price of shares purchased by plaintiff from third
parties - First defendant released sum to third parties for said shares - First defendant
subsequently sold said shares to second defendant - Whether first defendant entitled to
act as it did - Construction of provisions of documents involved in transaction -
Principles applicable
Glamour Green Sdn Bhd v. Ambank Bhd & Ors & Another Appeal
(Gopal Sri Ram, Mohd Ghazali Yusoff & Zulkefli Makinudin JJCA) [2007] 3 CLJ
413 [CA]
CIVIL PROCEDURE
Injunction - Interim injunction - Appeal against decision of High Court granting an
interim injunction restraining defendant from acting upon eviction notices served upon
plaintiffs until full trial of case - Principles applicable - Serious questions to be
tried - Balance of convenience - Whether judge erred in law and in fact in evaluation of
relevant matters of case
Datuk Bandar Kuala Lumpur v. Abdul Aziz Mohamed Ginan & Ors
(Zulkefli Makinudin, Raus Sharif & Heliliah Mohd Yusof JJCA) [2007] 3 CLJ
399 [CA]
Injunction - Interlocutory mandatory injunction, application for - Franchise agreement
regarding hotels entered into between parties - Application by plaintiff for injunction
against defendant from continuing to manage and operate hotel - Principles applicable -
Whether there were special circumstances - Balance of convenience - Damages - Whether it
was just and equitable for injunction to be issued
Rangkaian Hotel Seri Malaysia Sdn Bhd v. Husni Hussain
(Zainal Adzam Abd Ghani J) [2007] 3 CLJ
446 [HC]
Originating summons - Whether application can be made by originating summons - Validity
of a public authority's act or omission questioned - Whether institution of proceedings by
ordinary summons would deprive public authority of protection of law it was entitled to by
processes available under O. 53 Rules of the High Court 1980 - Federal Constitution, art.
43(5) - Rules of the High Court 1980, O. 18 r. 19(a), (b), (d), 53
Dato' Seri Anwar Ibrahim v. Perdana Menteri Malaysia & Anor
(Zulkefli Makinudin, Raus Sharif & Heliliah Mohd Yusof JJCA) [2007] 3 CLJ
377 [CA]
Striking out - Grounds for - Alleged contravention of art. 43 Federal Constitution -
Whether pleadings disclosed no reasonable cause of action and were an abuse of process of
court - Whether judge misdirected himself in concluding that case obviously unsustainable
- Whether there was a serious question to be tried - Federal Constitution, art. 43(5) -
Rules of the High Court 1980, O. 18 r. 19(a), (b), (d), 53
Dato' Seri Anwar Ibrahim v. Perdana Menteri Malaysia & Anor
(Zulkefli Makinudin, Raus Sharif & Heliliah Mohd Yusof JJCA) [2007] 3 CLJ
377 [CA]
CONSTITUTIONAL LAW
Executive - Dismissal of Minister - Appellant's appointment as Deputy Prime Minister
and Minister of Finance revoked by Prime Minister - Whether revocation contravened art.
43(5) Federal Constitution - Procedure to be followed - Whether revocation must be
effected by Yang di-Pertuan Agong acting on advice of Prime Minister - Federal
Constitution, art. 43(5) - Rules of the High Court 1980, O. 18 r. 19(a), (b), (d), 53
Dato' Seri Anwar Ibrahim v. Perdana Menteri Malaysia & Anor
(Zulkefli Makinudin, Raus Sharif & Heliliah Mohd Yusof JJCA) [2007] 3 CLJ
377 [CA]
CONTRACT
Consideration - Past consideration - Franchise agreement - Whether all terms and
conditions in contract became executed consideration upon agreement being executed -
Whether there was no requirement to provide any consideration prior to date of
commencement even though agreement executed earlier - Contracts Act 1950, s. 80(c)
Rangkaian Hotel Seri Malaysia Sdn Bhd v. Husni Hussain
(Zainal Adzam Abd Ghani J) [2007] 3 CLJ
446 [HC]
Construction - Approach to question of construction - Plaintiff entered into loan
agreement with first defendant in order to pay off balance price of shares purchased by
plaintiff from third parties - First defendant released sum to third parties for said
shares - First defendant subsequently sold said shares to second defendant - Whether first
defendant entitled to act as it did - Construction of provisions of documents involved in
transaction - Principles applicable
Glamour Green Sdn Bhd v. Ambank Bhd & Ors & Another Appeal
(Gopal Sri Ram, Mohd Ghazali Yusoff & Zulkefli Makinudin JJCA) [2007] 3 CLJ
413 [CA]
Construction - Loan - Plaintiff entered into loan agreement with first defendant in
order to pay off balance price of shares purchased by plaintiff from third parties - First
defendant released sum to third parties for said shares - First defendant subsequently
sold said shares to second defendant - Whether first defendant entitled to act as it did -
Construction of provisions of documents involved in transaction - Principles applicable
Glamour Green Sdn Bhd v. Ambank Bhd & Ors & Another Appeal
(Gopal Sri Ram, Mohd Ghazali Yusoff & Zulkefli Makinudin JJCA) [2007] 3 CLJ
413 [CA]
Loan - Construction - Plaintiff entered into loan agreement with first defendant in
order to pay off balance price of shares purchased by plaintiff from third parties - First
defendant released sum to third parties for said shares - First defendant subsequently
sold said shares to second defendant - Whether first defendant entitled to act as it did -
Construction of provisions of documents involved in transaction - Principles applicable
Glamour Green Sdn Bhd v. Ambank Bhd & Ors & Another Appeal
(Gopal Sri Ram, Mohd Ghazali Yusoff & Zulkefli Makinudin JJCA) [2007] 3 CLJ
413 [CA]
Shares, sale of - Entitlement to sell - Plaintiff entered into loan agreement with
first defendant in order to pay off balance price of shares purchased by plaintiff from
third parties - First defendant released sum to third parties for said shares - First
defendant subsequently sold said shares to second defendant - Whether first defendant
entitled to act as it did - Construction of provisions of documents involved in
transaction - Principles applicable
Glamour Green Sdn Bhd v. Ambank Bhd & Ors & Another Appeal
(Gopal Sri Ram, Mohd Ghazali Yusoff & Zulkefli Makinudin JJCA) [2007] 3 CLJ
413 [CA]
LAND LAW
Restraints on dealings - Injunction - Appeal against decision of High Court granting an
interim injunction restraining defendant from acting upon eviction notices served upon
plaintiffs until full trial of case - Principles applicable - Serious questions to be
tried - Balance of convenience - Whether judge erred in law and in fact in evaluation of
relevant matters of case
Datuk Bandar Kuala Lumpur v. Abdul Aziz Mohamed Ginan & Ors
(Zulkefli Makinudin, Raus Sharif & Heliliah Mohd Yusof JJCA) [2007] 3 CLJ
399 [CA]
Transfer - Estate land - Validity of - Beneficiaries of deceased's estate sought
declaration that transfer null and void on ground of fraud allegedly committed by
respondent - Whether beneficiaries had locus standi to seek such relief - Special
circumstances - Equity - Whether beneficiaries entitled to claim for general and special
damages on estate's behalf
Al Rashidy Kassim & Ors v. Rosman Roslan
(Abdul Hamid Mohamad FCJ, Arifin Zakaria & Augustine Paul FCJJ) [2007] 3 CLJ
361 [FC]
LOCAL GOVERNMENT
Squatters - Removal of - Injunction - Appeal against decision of High Court granting an
interim injunction restraining defendant from acting upon eviction notices served upon
plaintiffs until full trial of case - Principles applicable - Serious questions to be
tried - Balance of convenience - Whether judge erred in law and in fact in evaluation of
relevant matters of case
Datuk Bandar Kuala Lumpur v. Abdul Aziz Mohamed Ginan & Ors
(Zulkefli Makinudin, Raus Sharif & Heliliah Mohd Yusof JJCA) [2007] 3 CLJ
399 [CA]
PREVENTIVE DETENTION
Detention - Application for habeas corpus - Whether procedural requirements of r. 3(2)
and (3) Public Order and Prevention of Crime (Procedure) Rules 1972 breached - Whether
there was non-compliance of a mandatory provision of procedure - Whether issue of writ of
habeas corpus warranted
Ragu Subramaniam v. Timbalan Menteri Keselamatan Dalam Negeri, Malaysia & Ors
(KP Gengadharan Nair J) [2007] 3 CLJ
440 [HC]
SUCCESSION
Administration - Action for possession of land - Estate land of deceased transferred to
respondent - Beneficiaries of deceased's estate sought declaration that transfer null and
void on ground of fraud allegedly committed by respondent - Whether beneficiaries had
locus standi to seek such relief - Special circumstances - Equity - Whether beneficiaries
entitled to claim for general and special damages on estate's behalf
Al Rashidy Kassim & Ors v. Rosman Roslan
(Abdul Hamid Mohamad FCJ, Arifin Zakaria & Augustine Paul FCJJ) [2007] 3 CLJ
361 [FC]
2. CLJ Supp June (Part 1) 2007
COURT
HIGH COURT
Foo Ton Hin v. Malaysian Bar & Ors
(Civil Procedure - Locus standi - Action for reliefs - Whether plaintiff had locus
standi to institute and maintain proceedings) [2007] 8 CLJ
141
Leken Gerik (M) v. PP
(Sentence - Concurrent or consecutive - Exercise of court's discretion) [2007] 8 CLJ
158
Muhamad Taufik Kamaluddin lwn. PP
(Prosedur Jenayah - Hukuman - Rayuan - Rayuan untuk mengurangkan hukuman penjara dan
sebatan rotan) [2007] 8 CLJ
195
RHB Bank Bhd v. Tokodaya Sdn Bhd & Anor
(Preliminary objection - Procedural and technical objection - Plaintiff filed for
summons for directions under O. 25 Rules of the High Court 1980 - Receiving directions for
trial - Whether plaintiff estopped by conduct to ask for summary judgment) [2007] 8 CLJ
207
Tan Guek Tian & Anor v. Tan Kim Kiat
(Mental Disorders And Treatment - Inquiry - Selection and appointment of committee -
Application for the defendant to be declared mentally disordered) [2007] 8 CLJ
215
Techno Asia Holding Bhd v. Mount Austin Properties Sdn Bhd
(Legal Profession - Duty of care - Advocates and solicitors as stakeholders -
Liquidator's application for release of stakeholder sums) [2007] 8 CLJ
234
SUBJECT INDEX
CIVIL PROCEDURE
Locus standi - Action for reliefs - Seeking declaration that second to fourth
defendants (scrutineers) acted ultra vires Legal Profession Act 1976 when they declared
Bar Council Elections null and void - Whether plaintiff had locus standi to institute and
maintain proceedings - Whether plaintiff's rights as member of Malaysian Bar violated
Foo Ton Hin v. Malaysian Bar & Ors
(KP Gengadharan Nair J) [2007] 8 CLJ
141 [HC]
Preliminary objection - Procedural and technical objection - Plaintiff filed for
summons for directions under O. 25 Rules of the High Court 1980 - Receiving directions for
trial - Whether too late to consider plaintiff's application for summary judgment -
Whether plaintiff estopped by conduct to ask for summary judgment - Whether objection
raised on a substantive issue - Whether plaintiff had taken irreversible step to proceed
with trial - Whether case should proceed for trial
RHB Bank Bhd v. Tokodaya Sdn Bhd & Anor
(Sulong Matjeraie J) [2007] 8 CLJ
207 [HC]
Striking out - Application for - Application to strike out plaintiff's action for
declaratory reliefs regarding second to fourth defendants (scrutineers) decision to
nullify Bar Council election - Whether plaintiff had locus standi to institute and
maintain proceedings - Whether plaintiff's rights as member of Malaysian Bar violated
Foo Ton Hin v. Malaysian Bar & Ors
(KP Gengadharan Nair J) [2007] 8 CLJ
141 [HC]
Summary judgment - Appeal for - Plaintiff filed for summons for directions under O. 25
Rules of the High Court 1980 - Preliminary objection raised - Proceeding with summons for
directions and receiving directions for trial - Whether plaintiff estopped by conduct to
ask for summary judgment - Whether objection raised on a substantive issue - Whether
plaintiff had taken irreversible step to proceed with trial - Whether case should proceed
for trial
RHB Bank Bhd v. Tokodaya Sdn Bhd & Anor
(Sulong Matjeraie J) [2007] 8 CLJ
207 [HC]
COMPANY LAW
Winding up - Liquidator - Application for orders to compel firm of advocates and
solicitors to release stakeholder sums to liquidator - Whether court suitable to hear
liquidator's application - Companies (Winding Up) Rules 1972, r. 163 - Liquidator an
officer appointed by court - Companies Act 1965, s. 237(3) - Duties of liquidator to take
custody of assets of company in liquidation - Companies Act 1965, s. 233(1) - Whether
justice shall be done to order the release of stakeholders sums - Housing Developers
(Control and Licensing) Act 1966, s. 7A
Techno Asia Holding Bhd v. Mount Austin Properties Sdn Bhd
(Ghazali Cha JC) [2007] 8 CLJ
234 [HC]
CRIMINAL PROCEDURE
Sentence - Appeal against - Appellant charged with three separate offences of incest -
Penal Code, ss. 376A, 376B - Whether treated as a single crime committed over a period of
time or separated into several and distinct offences - Rape and incest - Whether entirely
different offences - Concurrent or consecutive - Exercise of court's discretion -
Mitigating factors - Public interest - Whether 30 years' imprisonment excessive for
non-violent offence - Whether there was failure on part of trial court to apply the right
sentencing principles - Penal Code, s. 71 - Subordinate Courts Act 1948, s. 102 - Criminal
Procedure Code, ss. 171,171A
Leken Gerik (M) v. PP
(Hamid Sultan JC) [2007] 8 CLJ
158 [HC]
Sentence - Concurrent or consecutive - Exercise of court's discretion - Appellant
charged with three separate offences of incest - Penal Code, ss. 376A, 376B - Whether
treated as a single crime committed over a period of time or separated into several and
distinct offences - Mitigating factors - Public interest - Whether 30 years imprisonment
excessive for non-violent offence - Whether there was failure on part of trial court to
apply the right sentencing principles - Penal Code, s. 71 - Subordinate Courts Act 1948,
s. 102 - Criminal Procedure Code, ss. 171, 171A
Leken Gerik (M) v. PP
(Hamid Sultan JC) [2007] 8 CLJ
158 [HC]
Sentence - Principles of sentencing - Public interest - Mitigating circumstances -
First time offender - Local factors - Whether taken into account - Exercise of court's
discretion - Whether 30 years imprisonment excessive for non-violent offence - Whether
there was failure on part of trial court to apply the right sentencing principles - Penal
Code, s. 71 - Subordinate Courts Act 1948, s. 102 - Criminal Procedure Code, ss. 171,171A
Leken Gerik (M) v. PP
(Hamid Sultan JC) [2007] 8 CLJ
158 [HC]
LEGAL PROFESSION
Duty of care - Advocates and solicitors as stakeholders - Liquidator's application for
release of stakeholder sums - Whether justice shall be done to order release of
stakeholder sums - Whether solicitors should return to liquidator all money deducted from
stakeholder sums as legal fees - Companies (Winding Up) Rules 1972, r. 163 - Companies Act
1965, ss. 233(1), 237(3) - Housing Developers (Control and Licensing) Act 1966, s. 7A
Techno Asia Holding Bhd v. Mount Austin Properties Sdn Bhd
(Ghazali Cha JC) [2007] 8 CLJ
234 [HC]
Members' election - Bar Council - Bar Council election nullified by second to fourth
defendants (scrutineers) - Plaintiff seeking declaration that second to fourth defendants
(scrutineers) acted ultra vires Legal Profession Act 1976 - Whether plaintiff had locus
standi to institute and maintain proceedings - Whether plaintiff's rights as member of
Malaysian Bar violated
Foo Ton Hin v. Malaysian Bar & Ors
(KP Gengadharan Nair J) [2007] 8 CLJ
141 [HC]
MENTAL DISORDERS AND TREATMENT
Inquiry - Selection and appointment of committee - Application for the defendant to be
declared mentally disordered and incapable of managing his person and affairs and for the
committee to be at liberty to sell the defendant's share of property - Whether court
invoked ss. 52 and 62 of Mental Health Act 2001 - High Court of Singapore made an order
that defendant was of unsound mind in the context of the Singapore Mental Disorders and
Treatment Act - Whether carries same meaning as the term ‘mental disorder' in s. 2 of
Mental Health Act 2001 - Whether court accepted medical reports of doctors - Whether
defendant's severe dementia and schizophrenia has impaired his memory, intelligence,
judgment and ability to care for himself - Whether constitutes a ‘mental disorder'
under s. 2 Mental Health Act 2001 - Whether an appropriate case for court to exercise its
discretion in granting prayers sought - Mental Health Act 2001, ss. 63, 64, 70 (para a)
Tan Guek Tian & Anor v. Tan Kim Kiat
(Abdul Malik Ishak J) [2007] 8 CLJ
215 [HC]
INDEKS PERKARA
PROSEDUR JENAYAH
Hukuman - Rayuan - Rayuan untuk mengurangkan hukuman penjara dan sebatan rotan - Faktor
kepentingan awam - Mahkamah memberi pertimbangan mengenai kekerapan kejadian kes samun -
Sama ada mahkamah berhak memberi pengiktirafan kehakiman (judicial notice) - Sama ada
mahkamah patut mengutamakan faktor deteren dalam menjatuhkan hukuman - Sama ada hukuman
dijatuhkan wajar - Sama ada hukuman dikekalkan - Kanun Keseksaan, s. 392
Muhamad Taufik Kamaluddin lwn. PP
(Azahar Mohamed H) [2007] 8 CLJ
195 [HC]
CASE OF THE WEEK
LINA JOY lwn. MAJLIS AGAMA ISLAM WILAYAH PERSEKUTUAN & YANG LAIN
UNDANG-UNDANG PENTADBIRAN: Remedi - Semakan kehakiman - Pembuat keputusan awam - Murtad - Ketua Pengarah Pendaftaran Negara enggan memadam perkataan "Islam" dari kad pengenalan si murtad dan meminta supaya dikemukakan sijil murtad dari Mahkamah Syariah - Sama ada menyalah tafsir undang-undang dan mengambilkira faktor luaran - Sama ada melakukan ketidak-munasabahan Wednesbury - Kaedah-Kaedah Pendaftaran Negara 1990, ss. 4, 14 - Perlembagaan Persekutuan, art. 8, 11, 74, 121(1A), Jadual Kesembilan
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