Legal Network Series

[2013] 1 LNS 61	KEMPAS AROWANA SDN BHD & SATU LAGI lwn. TAY AH GEE	PROSEDUR SIVIL: Pliding - Fakta-fakta yang tidak diplidkan - Sama ada plaintif telah memplidkan fakta berkenaan cabaran mereka terhadap defendan - Sama ada plaintif boleh membangkitkan isu-isu yang tidak diplidkan semasa perbicaraan atau semasa hujahan PROFESION GUAMAN: Saraan - Lien - Sama ada peguam boleh menahan suratan hakmilik asal hartanah apabila anak guamnya enggan membayar fi guaman
[2013] 1 LNS 104	Q2 ENGINEERING SDN BHD v. PJI - LFGC (VIETNAM) LTD & ORS	CONTRACT: Formation - Whether there was a contract between plaintiff and defendants - Letter of award - No price, contract sum or estimates agreed save for margin of profits - Whether any concluded contract - Whether 1st defendant could sue plaintiff based on fact parties had agreed on profit margin in a costs plus contract - If no breach by 1st defendant, whether 3rd defendant could be held liable for same claim under tort of inducement for breach of contract TORT: Inducement of breach of contract - Interference with contractual relations – 3rd defendant not a shareholder of 1st defendant - Plaintiff's case that 3rd defendant was controlling mind of 1st defendant - Whether inducer must be a 'stranger' to contract – 1st defendant and 3rd defendant subsidiaries of 2nd defendant - Whether that could be equated to a stranger third party interference with decision of 1st defendant - Whether to extend concept of agency in company law to justify tort of inducement by companies' shareholder or holding company would erode concept of separate legal entity - Whether prior consultation by 1st defendant with parent company, 2nd defendant or 3rd defendant derogated concept of separate legal entity so as to transform decision of 1st defendant to that of 3rd defendant under tort of inducing a breach of contract
[2013] 1 LNS 105	AW ENG SUN & ANOR v. LAU KOOI CHEUN & ORS	ARBITRATION: Stay of proceedings - Application - Conditions - Whether all conditions under s. 10 of the Arbitration Act 2005 fulfilled - Whether mandatory for the court to stay the proceedings and refer matter to arbitration ARBITRATION: Arbitration clause - Construction - Whether existence of arbitration clause in dispute - Whether too late for 4th defendant to contest the years of no Letter of Engagement when the contractual relationship of the parties continued to exist without such letters of engagement - Whether arbitration clause covered claims by 4th defendant against 3rd party based on breach of duties and obligations as an auditor - Whether upon referral to arbitration, the court was functus and cannot recall matter to give further directions
[2013] 1 LNS 106	VELL PAARI SAMY VELLU v. DATO' PARDIP KUMAR KUKREJA & ANOR	CIVIL PROCEDURE: Costs - Review of costs - Getting up fee - Claim arose from one transaction and defendants filed a common Statement of Defence - Whether Senior Assistant Registrar erred in law when he allowed cost of RM20,000.00 for each defendant - Whether as there was no divergence in their interests, respondents should only be given one set of costs - Whether Registrar erred in law when he gave different set of costs for each respondent - Whether RM180,000 was on the high scale for a trial which lasted only 2 days involving 5 witnesses on the issue of principal and agency - Whether a reasonable sum would be RM90,000.00
[2013] 1 LNS 237	SUNWAY CITY BERHAD v. RADIANT SPLENDOUR SDN BHD	CIVIL PROCEDURE: Summary judgment - Application for - Claim for outstanding maintenance charges - Oral representation and/or undertaking made by plaintiff that payment for the first year was waived - Failure to give explanation as to why maintenance charges were not demanded earlier - Whether entirely up to plaintiff to decide when to make its demand for maintenance charges - Whether delayed demand being made by plaintiff, ie, after the Settlement Meeting and Settlement Letter, proved conclusively that plaintiff had given waiver - Whether any triable issues raised EVIDENCE: Parol evidence rule - Oral agreement - Parol evidence, admissibility of - Whether existence of purported "oral representation" allowed under ss. 91 and 92 of the Evidence Act 1950 - Whether defendant could only rely on existence of any other oral agreement on alleged waiver if the terms of such oral agreement were not inconsistent with other contemporaneous documents - Whether oral agreement on the waiver admissible

CLJ 2014 Volume 4 (Part 7)

COURT

COURT OF APPEAL

Abdul Wahdi Zakaria v. Puspakom Sdn Bhd
Zaharah Ibrahim, Aziah Ali, Anantham Kasinather JJCA
(Limitation - Striking out action on ground of time bar - Action commenced out of time) [2014] 4 CLJ 785 [CA]

Othman A Aziz v. PP
Abdul Wahab Patail, Linton Albert, Rohana Yusuf JJCA
(Criminal Procedure - Trial - Conduct of defence - Incompetency of counsel) [2014] 4 CLJ 801 [CA]

PP v. Lim Kim Hoei & Anor
Hishamudin Mohd Yunus, Alizatul Khair Osman, Lim Yee Lan JJCA
(Criminal Procedure - Forfeiture - Dangerous drugs - Application for release of seized properties) [2014] 4 CLJ 816 [CA]

HIGH COURT

Diljit Kaur Puran Singh v. Majlis Peguam Malaysia
Su Geok Yiam J
(Legal Profession - Malaysian Bar - Powers - Abuse of power) [2014] 4 CLJ 836 [HC]

PP lwn. Adam Adli Abd Halim & Yang Lain
Kamardin Hashim H
(Prosedur Jenayah - Semakan - Kuasa semakan Mahkamah Tinggi) [2014] 4 CLJ 881 [HC]

Zaq Construction Sdn Bhd & Anor v. Putrajaya Holdings Sdn Bhd
Mary Lim J
(Arbitration - Arbitration agreement - Construction of - Arbitration agreements to be construed broadly) [2014] 4 CLJ 895 [HC]

SUBJECT INDEX

ARBITRATION

Arbitration agreement - Arbitration clause - Operation of - Whether arbitration clause takes effect regardless of whether parties refer matter to arbitration - Whether arbitration clause takes effect where statutory exceptions are present - Arbitration Act 2005, s. 10
Zaq Construction Sdn Bhd & Anor v. Putrajaya Holdings Sdn Bhd
(Mary Lim J) [2014] 4 CLJ 895 [HC]

Arbitration agreement - Construction of - Arbitration agreements to be construed broadly - Claim premised on failure to pay according to final accounts and claim of set-off - Whether fell within ambit of arbitration agreement
Zaq Construction Sdn Bhd & Anor v. Putrajaya Holdings Sdn Bhd
(Mary Lim J) [2014] 4 CLJ 895 [HC]

Stay of proceedings - Test to be applied - Whether granting of stay mandatory where requirements satisfied - Whether defendant needs to show defence on merits - Statutory exceptions to grant of stay - Whether defendant had taken a step in proceedings - Whether attending case management amounts to taking a step in proceedings - Arbitration Act 2005, s. 10
Zaq Construction Sdn Bhd & Anor v. Putrajaya Holdings Sdn Bhd
(Mary Lim J) [2014] 4 CLJ 895 [HC]

CIVIL PROCEDURE

Striking out - Application for - Whether at any stage of proceedings - Whether delay in application - Application filed three months after statement of defence filed - Subsequent amendment to statement of claim after close of pleadings - Whether there was undue delay in filing of application - Whether claim frivolous, vexatious or abuse of process of court - Rules of the High Court 1980, O. 18 r. 19(1)
Abdul Wahdi Zakaria v. Puspakom Sdn Bhd
(Zaharah Ibrahim, Aziah Ali, Anantham Kasinather JJCA) [2014] 4 CLJ 785 [CA]

CRIMINAL LAW

Murder - Appeal against conviction and sentence - Incompetency of counsel in conduct of defence - Allegation of - Whether there were grounds for setting aside death sentence - Whether proper defence raised - Whether counsel failed to carry out or pursue defences upon instructions from client - Role of counsel - Whether counsel's conduct of case occasioned a miscarriage of justice - Whether there was an error of law or principle warranting appellate intervention
Othman A Aziz v. PP
(Abdul Wahab Patail, Linton Albert, Rohana Yusuf JJCA) [2014] 4 CLJ 801 [CA]

CRIMINAL PROCEDURE

Forfeiture - Dangerous drugs - Forfeiture of property - Application for release of seized properties - Whether presumption under s. 35 would apply to claim under s. 32 of Dangerous Drugs (Forfeiture of Property) Act 1988 - Whether there were reasonable grounds to show that seized properties were illegal properties - Whether properties were acquired through lawful means - Whether respondents lawfully entitled to properties - Dangerous Drugs (Forfeiture of Property) Act 1988, s. 25(1), s. 32(2), (3) & s. 35
PP v. Lim Kim Hoei & Anor
(Hishamudin Mohd Yunus, Alizatul Khair Osman, Lim Yee Lan JJCA) [2014] 4 CLJ 816 [CA]

Trial - Conduct of defence - Incompetency of counsel - Allegation of - Whether there were grounds for setting aside death sentence - Whether proper defence raised - Whether counsel failed to carry out or pursue defences upon instructions from client - Role of counsel - Whether counsel's conduct of case occasioned a miscarriage of justice - Whether there was an error of law or principle warranting appellate intervention
Othman A Aziz v. PP
(Abdul Wahab Patail, Linton Albert, Rohana Yusuf JJCA) [2014] 4 CLJ 801 [CA]

LEGAL PROFESSION

Duty to client - Conduct of criminal trial - Incompetency of counsel - Allegation of - Whether there were grounds for setting aside death sentence - Whether proper defence raised - Whether counsel failed to carry out or pursue defences upon instructions from client - Role of counsel - Whether counsel's conduct of case occasioned a miscarriage of justice - Whether there was an error of law or principle warranting appellate intervention
Othman A Aziz v. PP
(Abdul Wahab Patail, Linton Albert, Rohana Yusuf JJCA) [2014] 4 CLJ 801 [CA]

Malaysian Bar - Powers - Abuse of power - Refusal to issue Sijil Annual on ground of failure to submit accountant's report - Whether decision to refuse Sijil Annual mala fide - Advocates and Solicitors (Issue of Sijil Annual) Rules 1978 - Guidelines on application for Sijil Annual - Legal Profession Act 1976, s. 79(1) - Accountant's Report Rules 1990, rr. 4, 4(i) & 6(1) - Doctrine of res judicata and issue estoppel - Whether barred plaintiff from filing suit
Diljit Kaur Puran Singh v. Majlis Peguam Malaysia
(Su Geok Yiam J) [2014] 4 CLJ 836 [HC]

Practice of law - Application for Sijil Annual - Failure to submit accountant's report - Whether Bar Council could refuse to issue Sijil Annual - Whether accountant's report a mandatory requirement - Whether advocate & solicitor entitled to legitimate expectation that Sijil Annual will be issued - Whether issuance of Sijil Annual without proper accountant's report is contrary to public policy - Advocates and Solicitors (Issue of Sijil Annual) Rules 1978 - Guidelines on application for Sijil Annual - Legal Profession Act 1976, s. 79(1) - Accountant's Report Rules 1990, rr. 4, 4(i) & 6(1) - Doctrine of res judicata and issue estoppel - Whether barred plaintiff from filing suit
Diljit Kaur Puran Singh v. Majlis Peguam Malaysia
(Su Geok Yiam J) [2014] 4 CLJ 836 [HC]

Practice of law - Application for Sijil Annual - Refusal of Bar Council to issue Sijil Annual - Failure to submit accountant's report - Whether accountant's report a mandatory requirement - Whether advocate & solicitor entitled to legitimate expectation that Sijil Annual will be issued - Whether issuance of Sijil Annual without proper accountant's report is contrary to public policy - Advocates and Solicitors (Issue of Sijil Annual) Rules 1978 - Guidelines on application for Sijil Annual - Legal Profession Act 1976, s. 79(1) - Accountant's Report Rules 1990, rr. 4, 4(i) & 6(1) - Doctrine of res judicata and issue estoppel - Whether barred plaintiff from filing suit
Diljit Kaur Puran Singh v. Majlis Peguam Malaysia
(Su Geok Yiam J) [2014] 4 CLJ 836 [HC]

LIMITATION

Striking out action on ground of time bar - Action commenced out of time - Cause of action in tort - Whether accrued when damages suffered - Date of discovery of damage - Whether relevant - Whether exceptions applicable - Limitation Act 1953, s. 29
Abdul Wahdi Zakaria v. Puspakom Sdn Bhd
(Zaharah Ibrahim, Aziah Ali, Anantham Kasinather JJCA) [2014] 4 CLJ 785 [CA]

TORT

Damages - Breach of statutory duty - Advocate & Solicitor claiming for losses for not being able to practice for six years due to Bar Council's refusal to issue Sijil Annual - Failure to raise and prove damages - Failure to mitigate losses - Failure to plead exemplary and general damages - Whether claim for damages dismissed
Diljit Kaur Puran Singh v. Majlis Peguam Malaysia
(Su Geok Yiam J) [2014] 4 CLJ 836 [HC]

WORDS AND PHRASES

'Shall' - Arbitration Act 2005, s. 10 - Whether mandatory obligation
Zaq Construction Sdn Bhd & Anor v. Putrajaya Holdings Sdn Bhd
(Mary Lim J) [2014] 4 CLJ 895 [HC]

INDEKS PERKARA

PROSEDUR JENAYAH

Semakan - Kuasa semakan Mahkamah Tinggi - Responden-responden didakwa melakukan kesalahan menghasut dalam satu ceramah - Responden-responden dituduh secara berasingan - Sama ada satu transaksi yang sama - Sama ada perintah hakim bicara wajar - Sama ada mahkamah mempunyai budi bicara membicarakan tertuduh secara berasingan - Kanun Tatacara Jenayah, s. 170
PP lwn. Adam Adli Abd Halim & Yang Lain
(Kamardin Hashim H) [2014] 4 CLJ 881 [HC]

UNDANG-UNDANG JENAYAH

Akta Hasutan 1948 - Seksyen 4(1)(b) - Responden-responden didakwa melakukan kesalahan menghasut dalam satu ceramah - Semakan - Kuasa semakan mahkamah - Responden-responden dituduh secara berasingan - Sama ada satu transaksi yang sama - Sama ada perintah hakim bicara wajar - Sama ada mahkamah mempunyai budi bicara membicarakan tertuduh secara berasingan - Kanun Tatacara Jenayah, s. 170
PP lwn. Adam Adli Abd Halim & Yang Lain
(Kamardin Hashim H) [2014] 4 CLJ 881 [HC]

CLJ 2014 Volume 4 (Part 8)

SC India

MAK Data Private Limited v. Commissioner Of Income Tax-II
KSP Radhakrishnan, AK Sikri JJ
(Revenue Law - Income Tax - Penalty - Concealment of income) [2014] 4 CLJ 929 [SC India]

COURT OF APPEAL

Datuk Kim Kok Khin v. Tan Ah Tong
Ramly Ali, David Wong Dak Wah, Mohd Zawawi Salleh JJCA
(Civil Procedure - Specific performance - Limitation of action - Summary application) [2014] 4 CLJ 936 [CA]

Nik Nazmi Nik Ahmad v. PP
Mohamad Ariff Yusof, Mah Weng Kwai, Hamid Sultan Abu Backer JJCA
(Criminal Law - Peaceful Assembly Act 2012 - Restrictions under s. 9(1) - Ten days' notice requirement - Whether reasonable - Whether s. 9(5) unconstitutional) [2014] 4 CLJ 944 [CA]

PP v. Gunus Sagena
Clement Skinner, Lim Yee Lan, Rohana Yusuf JJCA
(Criminal Law; Criminal Procedure - Reduction of charge from s. 302 Penal Code - Sentence - Adequacy of) [2014] 4 CLJ 1016 [CA]

Seng Kong Shutter Industries Sdn Bhd & Anor v. SKB Shutters Manufacturing Sdn Bhd
Hishamudin Mohd Yunus, Aziah Ali, Mohtarudin Baki JJCA
(Intellectual Property - Patent - Infringement - Validity of patent) [2014] 4 CLJ 1037 [CA]

HIGH COURT

Soo Ah Lai & Ors v. PP
Amelia Tee Abdullah J
(Criminal Law - Anti-Trafficking in Persons and Anti-Smuggling of Migrants Act 2007 - Ill treatment and abuse of domestic maid) [2014] 4 CLJ 1056 [HC]

SUBJECT INDEX

CIVIL PROCEDURE

Limitation of action - Agreement - Claim for specific performance of sale and purchase agreement of house - Preliminary issue of limitation decided in case management - Whether issue of limitation could be re-opened at trial - Rules of the High Court 1980, O. 14A
Datuk Kim Kok Khin v. Tan Ah Tong
(Ramly Ali, David Wong Dak Wah, Mohd Zawawi Salleh JJCA) [2014] 4 CLJ 936 [CA]

Specific performance - Agreement for sale of house - Parties entered into sale and purchase agreement in 1974 - Deposit paid by purchaser - Title deed of house issued in 1983 but purchaser came to know of issuance in 2004 - Purchaser lodged caveat on title deed and informed seller of willingness to pay what was lawfully due under agreement - No response from seller - Claim for specific performance of agreement against seller - Whether action barred by limitation
Datuk Kim Kok Khin v. Tan Ah Tong
(Ramly Ali, David Wong Dak Wah, Mohd Zawawi Salleh JJCA) [2014] 4 CLJ 936 [CA]

Summary application - Rules of the High Court 1980, O. 14A - Preliminary issue - Limitation of action - Trial judge decided issue under O. 14A but reversed finding at close of trial - Whether decision made under O. 14A final and could be re-opened during trial - Objective of O. 14A - Whether trial judge erred in reversing earlier decision - Whether trial judge bound by earlier findings
Datuk Kim Kok Khin v. Tan Ah Tong
(Ramly Ali, David Wong Dak Wah, Mohd Zawawi Salleh JJCA) [2014] 4 CLJ 936 [CA]

CRIMINAL LAW

Anti-Trafficking in Persons and Anti-Smuggling of Migrants Act 2007 - Section 13 - Ill treatment and abuse of domestic maid - Whether maid trafficked for purpose of exploitation - Whether recourse should be had under s. 13 - Whether prosecution established case under s. 13 for trafficking by use of force or other forms of coercion - Whether offence one under Penal Code
Soo Ah Lai & Ors v. PP
(Amelia Tee Abdullah J) [2014] 4 CLJ 1056 [HC]

Murder - Defence - Grave and sudden provocation - Whether proved - Whether deceased uttered humiliating and degrading words to accused - Act of respondent in attacking deceased - Whether spontaneous with no time gap and cooling off period - Whether accused failed to bring case within defence - Whether trial judge correctly evaluated evidence and applied right test - Whether there were cogent reasons to disturb sentence imposed - Whether trial judge erred in her decision that respondent had proven defence of grave and sudden provocation - Penal Code, ss. 302 & 304(a)
PP v. Gunus Sagena
(Clement Skinner, Lim Yee Lan, Rohana Yusuf JJCA) [2014] 4 CLJ 1016 [CA]

Peaceful Assembly Act 2012 - Section 9(1) and 9(5) - Failure by organiser of assembly to give police ten days' notice - Restrictions under s. 9(1) - Whether ten days' notice unreasonable restriction on right of citizens to assemble peaceably and without arms - Whether non-compliance by organiser attracted criminal penalty - Whether criminalising breach of restrictions under s. 9(1) unconstitutional
Nik Nazmi Nik Ahmad v. PP
(Mohamad Ariff Yusof, Mah Weng Kwai, Hamid Sultan Abu Backer JJCA) [2014] 4 CLJ 944 [CA]

Penal Code - Section 304(a) - Culpable homicide not amounting to murder - Reduction of charge from s. 302 Penal Code - Appeal against - Whether trial judge erred in her decision that accused had proven defence of grave and sudden provocation - Whether accused failed to bring case within defence - Whether deceased uttered humiliating and degrading words to accused - Whether act of accused in attacking deceased spontaneous - Whether trial judge correctly evaluated evidence and applied right test - Whether sentence imposed on accused manifestly inadequate - Whether there were cogent reasons to disturb sentence imposed
PP v. Gunus Sagena
(Clement Skinner, Lim Yee Lan, Rohana Yusuf JJCA) [2014] 4 CLJ 1016 [CA]

CRIMINAL PROCEDURE

Sentence - Adequacy of - Appeal against - Murder - Whether defence of grave and sudden provocation arose - Factors considered - First time offender - Circumstances under which offence committed - Whether trial judge correctly evaluated evidence and applied right test - Whether there were cogent reasons to disturb sentence imposed - Whether sentence so manifestly inadequate as to justify appellate intervention
PP v. Gunus Sagena
(Clement Skinner, Lim Yee Lan, Rohana Yusuf JJCA) [2014] 4 CLJ 1016 [CA]

INTELLECTUAL PROPERTY

Patent - Infringement - Validity of patent - Anticipation and novelty - Whether respondent's patent anticipated by existence of prior art
Seng Kong Shutter Industries Sdn Bhd & Anor v. SKB Shutters Manufacturing Sdn Bhd
(Hishamudin Mohd Yunus, Aziah Ali, Mohtarudin Baki JJCA) [2014] 4 CLJ 1037 [CA]

Patent - Inventive step - Whether invention obvious to person skilled in art - Whether person skilled in art must possess relevant common knowledge in roller shutter industry - Whether respondent's patent similar to prior art
Seng Kong Shutter Industries Sdn Bhd & Anor v. SKB Shutters Manufacturing Sdn Bhd
(Hishamudin Mohd Yunus, Aziah Ali, Mohtarudin Baki JJCA) [2014] 4 CLJ 1037 [CA]

REVENUE LAW

Income Tax - Penalty - Concealment of income - Imposition of penalty, confirmed - Appellant assessee filed return of income declaring income along with tax audit report - Certain documents comprising share application forms, bank statements, memorandums of association of companies, affidavits, copies of income tax returns and assessment orders and blank share transfer deeds impounded in course of survey proceedings under S. 133-A of IT Act in a sister concern of assessee - In reply to showcause notice assessee offering to surrender Rs 40.74 lakhs to avoid litigation and buy peace and amicable settlement of dispute, purportedly by way of voluntary disclosure without admitting any concealment whatsoever or with any intention to conceal and subject to non-initiation of penalty proceedings and prosecution - Held, IT Act does not recognise such types of defences under Expln. 1 to S. 271(1)(c) of Income Tax Act - The law does not provide that when an assessee makes a voluntary disclosure of his concealed income, he may be absolved from penalty - Further, held, principles laid down by Supreme Court, have been correctly followed by Revenue and there is no illegality in Department initiating penalty proceedings in instant case - Imposition of penalty of about Rs 14.62 lakhs under S. 271(1)(c) of the IT Act, confirmed - Income Tax Act, 1961, Ss. 271, 274, 133-A, 143 and 142
MAK Data Private Limited v. Commissioner Of Income Tax-II
(KSP Radhakrishnan, AK Sikri JJ) [2014] 4 CLJ 929 [SC India]

Income Tax Act, 1961 - S. 271(1)(c) and Expln. 1 - Concealment of income - Presumption raised by Expln. 1 - Reversal of onus of proof - Held, S. 271(1) Expln. 1 raises presumption of concealment, when a difference is noticed by AO, between reported and assessed income - Burden is on assessee to show otherwise, by cogent and reliable evidence - When initial onus placed by Expln. 1, has been discharged by assessee, onus shifts onto Revenue to show that amount in question constituted income and not otherwise - AO has to satisfy itself whether penalty proceedings be initiated or not during course of assessment proceedings and AO is not required to record his satisfaction in a particular manner or reduce it into writing
MAK Data Private Limited v. Commissioner Of Income Tax-II
(KSP Radhakrishnan, AK Sikri JJ) [2014] 4 CLJ 929 [SC India]

STATUTORY INTERPRETATION

Construction of statutes - Penal statutes - Failure by organiser of assembly to give police ten days' notice - Whether s. 9(5) Peaceful Assembly Act 2012 (`PAA') unconstitutional - Whether requirement under s. 9(1) of PAA unreasonable restriction on right of citizens to assemble peaceably and without arms - Article 10 Federal Constitution - Whether unconstitutional part of PAA could be severed from rest of Act - Article 4(1) Federal Constitution and doctrine of severability
Nik Nazmi Nik Ahmad v. PP
(Mohamad Ariff Yusof, Mah Weng Kwai, Hamid Sultan Abu Backer JJCA) [2014] 4 CLJ 944 [CA]