PP v. DATO' SAIDIN THAMBY
COURT OF APPEAL, PUTRAJAYA
ABDUL MALIM ISHAK JCA, AZHAR MA'AH JCA, MOHTARUDIN BAKI JCA
[CRIMINAL APPEAL NO: B-06B-24-2009]
6 APRIL 2012

CRIMINAL LAW: Corruption - Corruptly receiving gratification - Ingredients - Ordinary State Assemblyman - Whether could lawfully indulge in business and business transactions - State Assemblyman receiving commission for assisting company in obtaining State land - Whether legally permissible - Whether did not constitute corrupt practice - Whether conviction fatally flawed - Whether to be acquitted and discharged - Prevention of Corruption Act 1961, ss. 3(a)(i) & (ii), 8, 18

CRIMINAL PROCEDURE: Conviction - Conviction for more serious offence than offence charged - Legality - Accused charged with corruptly receiving gratification - Section 3(a)(i), Prevention of Corruption Act 1961 - Accused convicted after trial court invoked s. 8 of Act without prior notice - Whether conviction fatally flawed - Whether in transgression of principle of natural justice - Whether prima facie case not made out - Whether to be acquitted and discharged

Legal Network Series

[2009] 1 LNS 1537	ELEGANT ADISORY SDN BHD v. ISHAK ABD RAHMAN	CIVIL PROCEDURE: Striking out - Writ and statement of claim - Challenged on grounds no privity of contract between plaintiff and defendant - Whether plaintiff raised any question or issue which merited a trial of the same - Whether plaintiff's claim frivolous and vexatious - Whether plaintiff's claim barred by res judicata - Whether action against defendant should be struck out CIVIL PROCEDURE: Pleadings - Statement of claim - Material facts - Failure to plead existence of an agreement, whether oral or in writing - No mention of consideration involved - Whether statement of claim included material facts necessary to establish a viable legal right enforceable against defendant in contract CONTRACT: Compensation - Contracts Act 1950, s. 71 - Prayer for the price of goods - Whether plaintiff's pleaded case met all the requirements to satisfy a claim based on s. 71 of the Contracts Act - Claim for compensation appeared only in the indorsement of writ but not in statement of claim - Whether plaintiff could be said to have abandoned its claim under s. 71 - Goods and services furnished by four other parties - Whether plaintiff had basis for its claim under s. 71
[2009] 1 LNS 1539	TENG LAI YEN v. RKT TECHNOLOGY SDN BHD & ANOR	COMPANIES AND CORPORATIONS: Oppression - Conduct amounting to oppression - Removal of petitioner as a director of First respondent - Whether petitioner able to prove 'oppression' or 'disregard' of her rights as a member in her removal as a director - Proceedings commenced in court by Second respondent to recover loan granted to petitioner - Whether Second respondent's actions constituted oppressive conduct COMPANIES AND CORPORATIONS: Accounts - Complaint that petitioner was denied access to the books of account of the company - Petitioner ceased to be a director effective 1 November 2006 - Whether petitioner had no right to such access thereon - Whether petitioner's right to be informed of financial affairs of the company was at annual general meeting of the company COMPANIES AND CORPORATIONS: Dividends - Non-declaration of dividends - Petitioner never questioning Second respondent about this during her tenure as director - Accounts of first respondent reflected existence of cash reserves - Whether this justified a finding that Second respondent deliberately withheld declaring dividends so as to oppress petitioner COMPANIES AND CORPORATIONS: Oppression - Relief - Petition commenced for order that Second respondent purchase her 100,000 shares in First respondent - No application made and no refusal took place - Fears that Second respondent about to oppress her - Whether petition speculative in nature and premature
[2009] 1 LNS 1546	PRABHAKARAN MUTHUVEL ACHARY & ORS v. SHANITA HOLDING SDN BHD & ORS	CIVIL PROCEDURE: Injunction - Interlocutory injunction, application for - To restrain 3rd defendant and his agents from assuming status of being legal and beneficial shareholders of 4th defendant and directors - Oral agreement between the parties - Differing recollection of terms - Plaintiff alleging oral agreement subject to contract - Whether there was a bona fide serious question to be tried - Justice of the case - Whether warranted plaintiffs being granted injunction sought
[2010] 1 LNS 73	GOH SEH HO v. ABD B SALIKALA & ORS & ANOTHER CASE	CONTRACT: Capacity - No indication by Ibig @ David Bin Rampas (David) whether he filed action in his capacity as beneficial owner or attorneys for defendants - David contended he became beneficial owner of the lands pursuant to an oral agreement between him and defendants - Whether defendants in suit K22-137-2006 held the land as bare trustees for David - Agreement and power of attorneys did not state that David had purchased lands from defendants and sold land to plaintiff as beneficial owner - Whether David signed as attorney for defendants in the conditional sale and purchase agreement CONTRACT: Sale and purchase of land - Validity of - Whether conditional sale and purchase agreement dated 23 October 2004 and supplementary agreement dated 20 December 2004 null and void under s. 88 of the Land Ordinance
[2010] 1 LNS 114	AGI BUNGKONG & ORS v. LADANG SAWIT BINTULU SDN BHD & ORS	CIVIL PROCEDURE: Action - Representative proceedings - Whether plaintiffs could maintain representative action - Whether plaintiffs must first establish that they had native customary rights - Rules of the High Court 1980, O. 15 r. 12 - Whether rule only required existence of a 'same interest' which plaintiffs had shown EVIDENCE: Admissibility - Aerial photographs - Failure to disclose to plaintiffs - Whether prejudiced plaintiffs' case - Objection of plaintiff's counsel against admission of photographs - Whether court should adopt liberal approach or modern litigation approach - Whether aerial photographs should not be admitted NATIVE LAW AND CUSTOM: Land dispute - Customary rights over land - Plaintiffs claimed native customary rights on lands as set out in the map annexed to statement of claim - Existence of such claims denied by defendants - Whether plaintiffs had established native customary rights over lands - Whether plaintiffs had proved on balance of probabilities that they had native customary rights on lands prior to 1958

CLJ 2012 Volume 3 (Part 8)

Dr Noor Aini Hj Sa'ari v. Sa-Art Sae-Lee & Anor
Low Hop Bing, KN Segara JJCA, Anantham Kasinather J
(Civil Procedure - Discovery - Medical report - Whether report privileged) [2012] 3 CLJ 913 [CA]

J Rasvindar Singh Jaggir Singh v. PP
Ahmad Maarop, Clement Skinner, Mohamed Apandi Ali JJCA
(Criminal Procedure; Evidence - Murder - Oral evidence - Information leading to fact discovered) [2012] 3 CLJ 924 [CA]

HIGH COURT

Ang Yew Meng & Anor v. Dr Sashikannan Arunasalam & Ors
Supang Lian JC
(Tort; Contract - Medical negligence - Standard of care - Vicarious liability) [2012] 3 CLJ 937 [HC]

PP v. Jitweer Singh Ojagar Singh
Asmabi Mohamad JC
(Criminal Law; Criminal Procedure; Evidence - Murder - Cautioned statement - Unavailability of maker of statement) [2012] 3 CLJ 983 [HC]

PP lwn. Steven Pangiraja & Yang Lain
Kamardin Hashim H
(Keterangan; Undang-undang Jenayah - Kawad cam - Keteraturan - Saksi kanak-kanak - Kebolehterimaan keterangan) [2012] 3 CLJ 1016 [HC]

Veerasingam Subramaniam & Ors v. Datuk Bandar Kuala Lumpur
Zabariah Mohd Yusof J
(Civil Procedure - Injunction - Injunction against Government Department - Whether allowable) [2012] 3 CLJ 1041 [HC]

SUBJECT INDEX

CIVIL PROCEDURE

Discovery - Medical records - Consultant report pursuant to court proceedings - Substantial part of consultant report covered up - Whether report privileged - Whether parties bound by agreement to make discovery - Whether covered up part necessary for inclusion - Whether appellant estopped from refusing discovery
Dr Noor Aini Hj Sa'ari v. Sa-Art Sae-Lee & Anor
(Low Hop Bing, KN Segara JJCA, Anantham Kasinather J) [2012] 3 CLJ 913

Injunction - Injunction against government department - Whether government department could be subjected to injunction - Specific Relief Act 1950, s. 54(d)
Veerasingam Subramaniam & Ors v. Datuk Bandar Kuala Lumpur
(Zabariah Mohd Yusof J) [2012] 3 CLJ 1041

Injunction - Injunction to restrain demolition of building - Whether buildings `squatter huts' - Whether plaintiffs proved status of land - Whether locus standi established - Whether defendant proper party to be sued
Veerasingam Subramaniam & Ors v. Datuk Bandar Kuala Lumpur
(Zabariah Mohd Yusof J) [2012] 3 CLJ 1041

Injunction - Perpetual injunction - Action commenced after lapse of three years - Whether action time barred - Public Authorities Protection Act 1948
Veerasingam Subramaniam & Ors v. Datuk Bandar Kuala Lumpur
(Zabariah Mohd Yusof J) [2012] 3 CLJ 1041

CONTRACT

Formation - Whether contract formed between plaintiff and defendant - Whether there was consideration - Whether there was intention to create contract - Whether defendant had authority to enter into contract
Ang Yew Meng & Anor v. Dr Sashikannan Arunasalam & Ors
(Supang Lian JC) [2012] 3 CLJ 937

CRIMINAL LAW

Penal Code - Section 302 - Murder - Ingredients to establish - Whether cause of death proven
PP v. Jitweer Singh Ojagar Singh
(Asmabi Mohamad JC) [2012] 3 CLJ 983

CRIMINAL PROCEDURE

Prosecution - Prima facie case - Maximum evaluation of evidence as mandated under s. 180 Criminal Procedure Code - Whether properly exercised by trial judge - Whether there was misdirection - Whether prosecution failed to establish prima facie case - Whether conviction of appellant safe
J Rasvindar Singh Jaggir Singh v. PP
(Ahmad Maarop, Clement Skinner, Mohamed Apandi Ali JJCA) [2012] 3 CLJ 924

Prosecution - Prima facie case - Maximum evaluation test - Whether prosecution proved ingredients to establish prima facie case - Looi Kow Chai & Anor v. PP
PP v. Jitweer Singh Ojagar Singh
(Asmabi Mohamad JC) [2012] 3 CLJ 983

EVIDENCE

Hearsay - Cautioned statement - Unavailability of maker of statement - Whether proved - Effect and repercussion - Evidence Act 1950, s. 32(1)
PP v. Jitweer Singh Ojagar Singh
(Asmabi Mohamad JC) [2012] 3 CLJ 983

Information leading to fact discovered - Admissibility of - Evidence Act 1950, s. 27 - Oral evidence - Words testified not similar as purported information in police report - Whether qualified to be admitted - Whether evidence highly prejudicial to appellant
J Rasvindar Singh Jaggir Singh v. PP
(Ahmad Maarop, Clement Skinner, Mohamed Apandi Ali JJCA) [2012] 3 CLJ 924

Witness - Prosecution's failure to call witness - Presumption of adverse inference - Whether witnesses material - Evidence Act 1950, s. 114(g)
PP v. Jitweer Singh Ojagar Singh
(Asmabi Mohamad JC) [2012] 3 CLJ 983

Witnesses - Interested witnesses - Credibility of - Whether witnesses were accomplices - Failure to consider witnesses were interested witnesses who did not give consistent narratives of events
J Rasvindar Singh Jaggir Singh v. PP
(Ahmad Maarop, Clement Skinner, Mohamed Apandi Ali JJCA) [2012] 3 CLJ 924

TORT

Negligence - Medical negligence - Whether there was breach of duty - Standard of care to be applied - Application of test in Rogers v. Whitaker - Whether lack of registration of defendant as medical practitioner a factor to be considered - Whether treatment by first defendant appropriate and in accordance with standard of care
Ang Yew Meng & Anor v. Dr Sashikannan Arunasalam & Ors
(Supang Lian JC) [2012] 3 CLJ 937

Negligence - Medical negligence - Whether there was duty of care - Whether defendant held himself out as possessing special skill and knowledge
Ang Yew Meng & Anor v. Dr Sashikannan Arunasalam & Ors
(Supang Lian JC) [2012] 3 CLJ 937

Negligence - Vicarious liability - Medical negligence - Whether conduct of first defendant could be attributed to second and third defendants - Whether first defendant employee of second and third defendants
Ang Yew Meng & Anor v. Dr Sashikannan Arunasalam & Ors
(Supang Lian JC) [2012] 3 CLJ 937

INDEKS PERKARA

KETERANGAN

Kawad cam - Perjalanan kawad cam - Sama ada prosedur yang betul dipatuhi - Sama ada teratur - Sama ada pengecaman tertuduh boleh diterima
PP lwn. Steven Pangiraja & Yang Lain
(Kamardin Hashim H) [2012] 3 CLJ 1016

Sokongan - Saksi kanak-kanak - Keterangan kanak-kanak yang masih mentah - Sama ada keterangan sokongan diperlukan - Sama ada terdapat keterangan sokongan untuk mengaitkan tertuduh - Sama ada selamat untuk mensabitkan tertuduh jika tiada keterangan sokongan - Akta Keterangan 1950, s. 133A
PP lwn. Steven Pangiraja & Yang Lain
(Kamardin Hashim H) [2012] 3 CLJ 1016

UNDANG-UNDANG JENAYAH

Akta Penculikan 1961 - Seksyen 3 - Intipati pertuduhan - Sama ada dibuktikan - Sama ada pihak pendakwaan berjaya membuktikan kes prima facie
PP lwn. Steven Pangiraja & Yang Lain
(Kamardin Hashim H) [2012] 3 CLJ 1016

Akta Penculikan 1961 - Seksyen 3 - Niat bersama - Sama ada dibuktikan - Sama ada terdapat keterangan yang membolehkan mahkamah membuat inferens niat bersama
PP lwn. Steven Pangiraja & Yang Lain
(Kamardin Hashim H) [2012] 3 CLJ 1016

Legal Network Series Articles

1. ADDRESS TO BAR COUNCIL CONFERENCE: CONTROL ORDERS ^{[Read excerpt]}
    BY: MR JUSTICE SILBER [2012] 1 LNS(A) xxxvi

2. SALINAN LANGGARAN PERISIAN KOMPUTER: PERSPEKTIF UNDANG-UNDANG MALAYSIA DAN PANDANGAN SYARIAH ^{[Read excerpt]}
    BY: AHMAD SHAMSUL ABD AZIZ, NORAIN ISMAIL [2012] 1 LNS(A) xxxvii

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