Bulletin_22

CLJ Bulletin, Issue 2009, Vol 22

11 September 2009

CLJ Law MALAYSIA

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1. CLJ September (Part 2) 2009

COURT

COURT OF APPEAL

Hardial Singh Sekhon v. PP
(Contempt of court - Sentence, appeal against) [2009] 5 CLJ 101

Jacob Rabindranath M Krishnan v. GP Autobat Sdn Bhd
(Bankruptcy - Notice - Setting aside) [2009] 5 CLJ 104

RNC Corporation Bhd v. Kesvaran TP Murugasu
(Garnishee order - Creditor garnishing money in bank account) [2009] 5 CLJ 110

Seraman A Adipan v. PP
(Murder - Appeal against conviction and sentence - Post-mortem - Dying declarations) [2009] 5 CLJ 123

Tan Ying Hong v. Tan Sian San & Ors
(Indefeasibility of title and interests - Charge) [2009] 5 CLJ 143

Taylor's College Sdn Bhd v. Ketua Pengarah Kesatuan Sekerja Malaysia & Ors
(Judicial review - Dispute over recognition claim by trade union) [2009] 5 CLJ 153

HIGH COURT

Re Hashbudin Hashim; ex p Citic Ka Wah Bank Ltd
(Capacity of bankrupt - Negotiation with judgment creditor) [2009] 5 CLJ 170

SUBJECT INDEX

ADMINISTRATIVE LAW

Judicial review - Certiorari - Dispute over recognition claim by trade union - Decision by Director General of Trade Unions to resolve dispute through membership verification instead of secret ballot - Whether Director General acted lawfully - Rules of the High Court 1980, O. 53 - Trade Unions Act 1959, s. 26(3)
Taylor's College Sdn Bhd v. Ketua Pengarah Kesatuan Sekerja Malaysia & Ors
(Suriyadi Halim Omar, Zainun Ali & Sulaiman Daud JJCA) [2009] 5 CLJ 153 [CA]

BANKING

Securities for advances - Charge - Indefeasibility of interest - Whether bank's interest as chargee of land registered to appellant indefeasible despite appellant's title being defeasible - Principles applicable - National Land Code, s. 340(1), (2), (3)
Tan Ying Hong v. Tan Sian San & Ors
(Suriyadi Halim Omar, Zainun Ali & Ahmad Maarop JJCA) [2009] 5 CLJ 143 [CA]

BANKRUPTCY

Capacity of bankrupt - Negotiation with judgment creditor - Bankrupt can negotiate with judgment creditor to reduce debt due - Valid agreement existed between judgment creditor and bankrupt to reduce amount in proof of debt - Agreement reached to reduce debt to be sanctioned by Director General of Insolvency
Re Hashbudin Hashim; ex p Citic Ka Wah Bank Ltd
(Kang Hwee Gee J) [2009] 5 CLJ 170 [HC]

Notice - Setting aside - Whether judgment went beyond purview of guarantee executed by appellant - Miscarriage of justice - Whether Court of Bankruptcy ought to go behind judgment - Principles applicable
Jacob Rabindranath M Krishnan v. GP Autobat Sdn Bhd
Gopal Sri Ram, Heliliah Mohd Yusof & Sulong Matjeraie JJCA) [2009] 5 CLJ 104 [CA]

Notice - Setting aside - Appeal pending against judgment on basis of which notice issued - Whether judgment not final - Whether notice bad and ought to be set aside
Jacob Rabindranath M Krishnan v. GP Autobat Sdn Bhd
Gopal Sri Ram, Heliliah Mohd Yusof & Sulong Matjeraie JJCA) [2009] 5 CLJ 104 [CA]

Receiver - Power of Director General of Insolvency to reduce amount in proof of debt - Bankruptcy Act 1967, s. 42 Schedule C r. 27 - Director General of Insolvency may apply to court to reduce amount in proof of debt which he has earlier approved
Re Hashbudin Hashim; ex p Citic Ka Wah Bank Ltd
(Kang Hwee Gee J) [2009] 5 CLJ 170 [HC]

CIVIL PROCEDURE

Execution - Garnishee order - Creditor garnishing money in bank account - Appeal against - Whether creditor a preferential creditor under Danaharta Scheme or Companies Act 1965 - Unsecured creditor - Principles applicable - Validity and legality of company's liquidation - Pleadings - Whether doctrine of estoppel applicable
RNC Corporation Bhd v. Kesvaran TP Murugasu
(Low Hop Bing, Raus Sharif & Abu Samah Nordin JJCA) [2009] 5 CLJ 110 [CA]

COMPANY LAW

Winding up - Creditor garnishing money in bank account - Appeal against garnishee order - Whether creditor a preferential creditor under Danaharta Scheme or Companies Act 1965 - Unsecured creditor - Principles applicable - Validity and legality of company's liquidation - Pleadings - Whether doctrine of estoppel applicable
RNC Corporation Bhd v. Kesvaran TP Murugasu
(Low Hop Bing, Raus Sharif & Abu Samah Nordin JJCA) [2009] 5 CLJ 110 [CA]

CRIMINAL LAW

Penal Code - Section 302 - Murder - Appeal against conviction and sentence - Post-mortem - Whether cause of death unclear - Dying declarations - Identification of deceased - Doubt as to how injuries suffered by deceased came about - Accused's explanation - Whether trial judge erred in law and in fact - Whether conviction safe
Seraman A Adipan v. PP
(Raus Sharif, Hasan Lah & Sulong Matjeraie JJCA) [2009] 5 CLJ 123 [CA]

CRIMINAL PROCEDURE

Contempt of court - Sentence, appeal against - Nature of contempt committed - Whether term of 12 months' imprisonment excessive - Circumstances to be considered - Whether a lesser term of imprisonment more appropriate
Hardial Singh Sekhon v. PP
(Gopal Sri Ram, Hashim Yusof & James Foong JJCA) [2009] 5 CLJ 101 [CA]

Defence - Explanation by accused - Accused charged with murder of deceased - Whether story of accused that deceased killed himself highly implausible - Conduct of accused at material time
Seraman A Adipan v. PP
(Raus Sharif, Hasan Lah & Sulong Matjeraie JJCA) [2009] 5 CLJ 123 [CA]

Sentence - Appeal against sentence - Contempt of court - Nature of contempt committed - Whether term of 12 months' imprisonment excessive - Circumstances to be considered - Whether a lesser term of imprisonment more appropriate
Hardial Singh Sekhon v. PP
(Gopal Sri Ram, Hashim Yusof & James Foong JJCA) [2009] 5 CLJ 101 [CA]

EVIDENCE

Dying declaration - Admissibility - Oral and written statements of deceased - Whether deceased's thinking process impaired by morphine-based painkillers - Whether deceased could have been suffering from; "Korsakoff Syndrome"; - Whether dying declarations could form basis of conviction
Seraman A Adipan v. PP
(Raus Sharif, Hasan Lah & Sulong Matjeraie JJCA) [2009] 5 CLJ 123 [CA]

LABOUR LAW

Trade union - Recognition - Dispute over claim - Decision by Director General of Trade Unions to resolve dispute through membership verification instead of secret ballot - Judicial review - Whether Director General acted lawfully - Rules of the High Court 1980, O. 53 - Trade Unions Act 1959, s. 26(3)
Taylor's College Sdn Bhd v. Ketua Pengarah Kesatuan Sekerja Malaysia & Ors
(Suriyadi Halim Omar, Zainun Ali & Sulaiman Daud JJCA) [2009] 5 CLJ 153 [CA]

LAND LAW

Charge - Indefeasibility of interest - Whether bank's interest as chargee of land registered to appellant indefeasible despite appellant's title being defeasible - Principles applicable - National Land Code, s. 340(1), (2), (3)
Tan Ying Hong v. Tan Sian San & Ors
(Suriyadi Halim Omar, Zainun Ali & Ahmad Maarop JJCA) [2009] 5 CLJ 143 [CA]

Indefeasibility of title and interests - Charge - Whether bank's interest as chargee of land registered to appellant indefeasible despite appellant's title being defeasible - Principles applicable - National Land Code, s. 340(1), (2), (3)
Tan Ying Hong v. Tan Sian San & Ors
(Suriyadi Halim Omar, Zainun Ali & Ahmad Maarop JJCA) [2009] 5 CLJ 143 [CA]

CASE OF THE WEEK

DATO' DR ZAMBRY ABD KADIR v. DATO' SERI IR HJ MOHAMMAD NIZAR JAMALUDDIN; ATTORNEY GENERAL OF MALAYSIA (INTERVENER)

Constitutional Law: Executive - Appointment of Menteri Besar - Right of Sultan to appoint as Menteri Besar individual who commands support of majority of members of Legislative Assembly - Perak State Constitution, arts. XVI(2),(6), XVIII(2)(a), XXXVI(2), (4)

Constitutional Law: Executive - Dismissal of Menteri Besar - Whether office of Menteri Besar held at pleasure of Sultan - Request for dissolution of State Assembly made under Perak State Constitution, art. XVI(6) rejected by Sultan - Menteri Besar asked to resign by Sultan - Whether dismissal of Menteri Besar valid - Whether essential for motion of no confidence to first be passed in Legislative Assembly to dismiss Menteri Besar - Menteri Besar ceased to command confidence of majority of members of Legislative Assembly - Whether Menteri Besar's refusal to tender his resignation and resignation of Executive Council unconstitutional - Perak State Constitution arts. X, XVI(2),(6, XVIII(2)(a), XXXVI(2),(4), LXVII

Constitutional Law: Preservation of rights and powers of Sultan - Prerogative powers - Discretion of Sultan to agree or refuse to dissolution of State Assembly - Power to appoint Menteri Besar - Powers exercisable by Sultan in his absolute discretion - Decision of Sultan non-justiciable

Constitutional Law: Legislature - State Assembly - Dissolution of - Whether Sultan has absolute discretion to withhold consent for request for dissolution of Legislative Assembly - Request for dissolution made under Perak State Constitution, art. XVI(6) - Whether withholding of consent for dissolution is a Royal Prerogative and is not justiciable - Perak State Constitution arts. XVI(6), XVIII(2)(a)

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