Legal Network Series

[2011] 1 LNS 800	MAYBANK FINANCE BERHAD v. SELEKSI SENSASI SDN BHD & ORS	CIVIL PROCEDURE: Summary judgment - Appeal - Against dismissal of plaintiff's application - Whether triable issues raised - Whether defendants had an arguable defence to plaintiff's claim - Whether appellate court should interfere with Session's Judge's decision and order summary judgment to be entered CIVIL PROCEDURE: Summary judgment - Action to recover moneys loaned - Whether amount claimed by plaintiff accurate - Whether variance between amounts owed at different stages of action adequately explained by plaintiff - Whether drawdown on facilities were not credited to 1st defendant but into 2nd defendant's account - Whether express authority was given to 2nd defendant by way of Board Resolution - Whether plaintiff was entitled to the monies claimed from defendants
[2011] 1 LNS 956	RE: RICHARD SU HOW GAY; EX-PARTE: HSBC BANK MALAYSIA BERHAD	CIVIL PROCEDURE: Appeal - Appeal against decision of Senior Assistant Registrar (SAR) - Judgment Debtor's application to strike out/set aside the Bankruptcy Notice and the Creditor's Petition allowed - Appeal by Judgment Creditor to High Court - Whether SAR of the Bankruptcy Court erred in law and in fact BANKRUPTCY: Petition - Notice - Service - Substituted service - Application to set aside Bankruptcy Notice and Creditor's Petition - Whether Judgment Debtor had taken a step in the proceedings and waived his right to challenge the irregularity of service, if any - Whether service of the Bankruptcy Notice and Creditor's Petition was bad in law - Whether anything irregular or improper in the way substituted service was effected BANKRUPTCY: Petition - Presentation - Judgment debtor a permanent resident of Australia - Whether Judgment Debtor still domiciled in Malaysia - Whether mere acquisition of permanent resident status by Judgment Debtor displaced the presumption in law and fact that he was still domiciled in Malaysia - Whether Judgment Debtor discharged burden of showing that he was not domiciled in Malaysia and had intended to acquire domicile in Australia - Whether Creditor's Petition defective for want of jurisdiction
[2011] 1 LNS 957	RE: JANET SU JUNE; EX-PARTE: HSBC BANK MALAYSIA BERHAD	BANKRUPTCY: Petition - Notice - Service - Substituted service - Application to set aside Bankruptcy Notice and Creditor's Petition - Whether Judgment Debtor had taken a step in the proceedings and waived his right to challenge the irregularity of service, if any - Whether service of the Bankruptcy Notice and Creditor's Petition was bad in law - Whether anything irregular or improper in the way substituted service was effected BANKRUPTCY: Petition - Presentation - Judgment debtor residing in Hong Kong - Passport issued by the Malaysian Consulate General's office in Hong Kong - Whether presumption in law and fact that Judgment Debtor was still domiciled in Malaysia - Whether Judgment Debtor discharged burden of showing she was not domiciled in Malaysia - Whether Judgment debtor was domiciled in Malaysia when Creditor's Petition was filed - Whether Creditor's Petition defective for want of jurisdiction CIVIL PROCEDURE: Appeal - Appeal against decision of Senior Assistant Registrar (SAR) - Judgment Debtor's application to strike out/set aside the Bankruptcy Notice and the Creditor's Petition allowed - Appeal by Judgment Creditor to High Court - Whether SAR of Bankruptcy Court erred in law and fact
[2011] 1 LNS 965	EDARAN MODENAS SDN BHD v. AZHAR HUSSAIN & ORS	CONTRACT: Breach - Contract of employment - 1st defendant responsible for sales order and bike transfer form and the request for excise seven - Weakness in Plaintiff's system - Whether 1st defendant took advantage of such weakness - Whether 1st defendant breached his duty of fidelity to act in the plaintiff's best interests TORT: Deceit - Fraud - Misrepresentation in the form of the sales order, bike transfer form, request for excise seven and payment for genuine invoices against non-existent orders - Whether fraud proved beyond reasonable doubt against 1st defendant - Conspiracy - Whether there was any evidence of conspiracy between defendants - Whether plaintiff established any agreement between 1st defendant and the other defendants and the other defendants among themselves
[2011] 1 LNS 1088	KONTRON DESIGN MANUFACTURING SERVICES (M) SDN BHD & ANOR v. QUAH SIN CHYE & ORS	CIVIL PROCEDURE: Injunction - Mareva injunction - Inter parte application - Whether plaintiff made out a case for the Mareva injunctions sought - Complaints against defendants for fraud or conspiracy to commit fraud - Whether plaintiffs proved such complaints beyond reasonable doubt - Whether plaintiffs failed to satisfy or demonstrate that there was a real risk that defendants would dissipate their assets - Whether balance of convenience favoured defendants - Whether unjust to grant the Mareva injunction CIVIL PROCEDURE: Injunction - Mareva injunction - Ex parte injunction - Whether plaintiffs failed to make full and frank disclosure of the information or evidence at the ex parte stage - Whether plaintiffs involved in various questionable conduct and did not come to Court with clean hands - Whether defendants raised sufficient grounds to dissolve the ex parte injunction granted

CLJ 2013 Volume 4 (Part 2)

COURT

FEDERAL COURT

Siew Yoke Keong v. PP
(Raus Sharif PCA, Richard Malanjum CJ (Sabah & Sarawak), Hashim Yusoff, Abdull Hamid Embong, Ahmad Maarop FCJJ)
(Criminal Law; Evidence - Information leading to fact discovered - Whether admissible - Section 27 Evidence Act 1950) [2013] 4 CLJ 149 [FC]

Wong Kin Hoong & Anor v. Ketua Pengarah Jabatan Alam Sekitar & Anor
(Raus Sharif PCA, Abdull Hamid Embong, Ahmad Maarop, Hasan Lah, Zaleha Zahari FCJJ)
(Civil Procedure - Judicial review - Application for leave - Extension of time - Duty of trial judge) [2013] 4 CLJ 193 [FC]

COURT OF APPEAL

Federal Express Brokerage Sdn Bhd & Ors v. Malaysia Airports (Sepang) Sdn Bhd & Anor
Zainun Ali, Ramly Ali, Anantham Kasinather JJCA
(Administrative Law - Remedies - Declarations - Free Zones Act 1990, ss. 10(3) & 13(2)) [2013] 4 CLJ 208 [CA]

Hoo Ah Tee v. PP
Mohamed Apandi Ali, Linton Albert, Hamid Sultan Abu Backer JJCA
(Criminal Law; Criminal Procedure - Murder - Ingredients under s. 300(a) to (d) Penal Code - Whether satisfied) [2013] 4 CLJ 228 [CA]

Zulkifli Md Rodzi v. PP
Mohamed Apandi Ali, Linton Albert, Hamid Sultan Abu Backer JJCA
(Criminal Law; Evidence - Chemist's report - Whether admissible - Section 399 Criminal Procedure Code) [2013] 4 CLJ 250 [CA]

HIGH COURT

Goi Ah Soong v. Kumpulan Wang Simpanan Pekerja & Anor
Yaacob Md Sam J
(Administrative Law; Provident Fund - Employer's contribution - Contract for service) [2013] 4 CLJ 262 [HC]

Norizan Abd Rahman v. Dr Arthur Samuel
Siti Khadijah S Hassan Badjenid JC
(Tort - Damages - Medical negligence - Special damages - General damages) [2013] 4 CLJ 275 [HC]

PP v. Ho Ah Tee
Noor Azian Shaari J
(Criminal Law - Murder - Defence - Ingredients of murder - Whether proved) [2013] 4 CLJ 291 [HC]

SUBJECT INDEX

ADMINISTRATIVE LAW

Judicial review - Remedies - Certiorari - Application for - Application to quash decision of first respondent made under Employees Provident Fund Act 1991 - Whether applicant entitled to EPF contributions - Whether second respondent liable to make contributions to EPF - Whether applicant an employee of second respondent within meaning of Employees Provident Fund Act 1991 - Whether first respondent misconstrued law - Whether irrelevant matters taken into consideration - Whether application dismissed
Goi Ah Soong v. Kumpulan Wang Simpanan Pekerja & Anor
(Yaacob Md Sam J) [2013] 4 CLJ 262 [HC]

Remedies - Declarations - Decision of Minister of Finance to impose free zone charges at KLIA free commercial zone ('FCZ') - Whether appellants liable to make payment for arrears of FCZ charges - Whether imposition of FCZ charges ultra vires Free Zones Act 1990 and Free Zones Regulations 1991 ('Regulations') - Whether reg. 8A Regulations could be effective retrospectively - Free Zones Act 1990, ss. 10(3) & 13(2)
Federal Express Brokerage Sdn Bhd & Ors v. Malaysia Airports (Sepang) Sdn Bhd & Anor
(Zainun Ali, Ramly Ali, Anantham Kasinather JJCA) [2013] 4 CLJ 208 [CA]

CIVIL PROCEDURE

Judicial review - Application for leave - Extension of time to apply for leave - Whether an exercise of judicial discretion - Whether going to jurisdiction - Duty of trial judge - Whether not to consider merits of case when hearing application for extension of time - Rules of the High Court 1980, O. 53 r. 3(6) - Rules of Court 2012, O. 53 r. 3(6), (7)
Wong Kin Hoong & Anor v. Ketua Pengarah Jabatan Alam Sekitar & Anor
(Raus Sharif PCA, Abdull Hamid Embong, Ahmad Maarop, Hasan Lah, Zaleha Zahari FCJJ) [2013] 4 CLJ 193 [FC]

CRIMINAL LAW

Dangerous Drugs Act 1952 - Section 39B(1)(a) - Trafficking in dangerous drugs - Chemist's report - Admissibility of - Whether report prepared by government chemist - Whether report satisfied criteria required under s. 399 Criminal Procedure Code ('CPC') - Whether report admissible under s. 45 Evidence Act 1950 - Whether report relevant though couched as a report under s. 399 CPC - Whether case collapsed at prosecution stage due to evidence being expunged - Whether accused acquitted
Zulkifli Md Rodzi v. PP
(Mohamed Apandi Ali, Linton Albert, Hamid Sultan Abu Backer JJCA) [2013] 4 CLJ 250 [CA]

Dangerous Drugs Act 1952 - Section 39B(1)(a) - Trafficking in dangerous drugs - Conviction and sentence - Appeal against - Information leading to fact discovered - Whether admissible under s. 27 Evidence Act 1950 - Whether trial-within-a-trial held to determine voluntariness of information - Whether appellant had exclusive possession of drugs - Failure to call material witness - Whether adverse inference against prosecution invoked - Evidence Act 1950, s. 114(g) - Whether presumption of trafficking under
s. 37(da) Dangerous Drugs Act 1952 invoked against appellant
Siew Yoke Keong v. PP
(Raus Sharif PCA, Richard Malanjum CJ (Sabah & Sarawak), Hashim Yusoff, Abdull Hamid Embong, Ahmad Maarop FCJJ) [2013] 4 CLJ 149 [FC]

Murder - Defence - Defence of unawareness or automatism by reason of hypoglycemia - Accused slashed deceased with parang - Whether person in hypoglycemia state would be able to perform such act requiring strength - Whether weight of evidence clearly established accused was in control of his actions - Whether defence failed
PP v. Ho Ah Tee
(Noor Azian Shaari J) [2013] 4 CLJ 291 [HC]

Penal Code - Section 300(d) - Ingredients of murder - Whether proved - Accused slashed deceased with parang - Whether accused knew act would cause bodily injury and was likely to cause death - Whether accused had intention to cause death
PP v. Ho Ah Tee
(Noor Azian Shaari J) [2013] 4 CLJ 291 [HC]

Penal Code - Section 302 - Murder - Conviction and sentence - Appeal against - Defence of unawareness by reason of hypoglycemia when committing murder - Whether properly assessed by trial judge - Whether defence of automatism an absolute defence to murder - Whether there were grounds for mitigation of punishment - Whether trial judge applied maximum evaluation and beyond reasonable test
Hoo Ah Tee v. PP
(Mohamed Apandi Ali, Linton Albert, Hamid Sultan Abu Backer JJCA) [2013] 4 CLJ 228 [CA]

Penal Code - Section 302 - Murder - Conviction and sentence - Appeal against - Ingredients under s. 300(a) to (d) Penal Code - Whether satisfied - Whether there can be a charge on any of the limbs of s. 300 Penal Code - Whether there were grounds for mitigation of punishment - Whether trial judge applied maximum evaluation and beyond reasonable test
Hoo Ah Tee v. PP
(Mohamed Apandi Ali, Linton Albert, Hamid Sultan Abu Backer JJCA) [2013] 4 CLJ 228 [CA]

Penal Code - Section 302 - Murder - Prima facie case - Whether established - Accused slashed deceased with parang - Whether accused knew act would cause bodily injury and was likely to cause death - Ingredients of murder under s. 300(d) Penal Code - Whether proved - Defence of non-awareness due to hypoglycemia state when committing the act - Whether accused in control of his actions - Whether defence failed
PP v. Ho Ah Tee
(Noor Azian Shaari J) [2013] 4 CLJ 291 [HC]

CRIMINAL PROCEDURE

Appeal - Appeal against conviction and sentence - Murder - Penal Code, s. 302 - Ingredients under s. 300(a) to (d) Penal Code - Whether satisfied - Whether there can be a charge on any of the limbs of s. 300 Penal Code - Defence of unawareness by reason of hypoglycemia when committing murder - Whether properly assessed by trial judge - Whether defence of automatism an absolute defence to murder - Whether there were grounds for mitigation of punishment - Whether trial judge applied maximum evaluation and beyond reasonable test
Hoo Ah Tee v. PP
(Mohamed Apandi Ali, Linton Albert, Hamid Sultan Abu Backer JJCA) [2013] 4 CLJ 228 [CA]

EVIDENCE

Admissibility - Chemist's report - Whether report prepared by government chemist - Whether report satisfied criteria required under s. 399 Criminal Procedure Code ('CPC') - Whether report admissible under s. 45 Evidence Act 1950 - Whether report relevant though couched as a report under s. 399 CPC - Whether case collapsed at prosecution stage due to evidence being expunged - Whether accused acquitted
Zulkifli Md Rodzi v. PP
(Mohamed Apandi Ali, Linton Albert, Hamid Sultan Abu Backer JJCA) [2013] 4 CLJ 250 [CA]

Information leading to fact discovered - Act of accused - Whether accused's act of pointing out where keys to locked rooms and safe were amounted to 'information' or 'statement' - Voluntary information - Whether trial-within-a-trial necessary to determine voluntariness of such information - Whether prosecution withheld or suppressed evidence to warrant invocation of adverse inference - Whether combined effect of circumstantial evidence showed accused had possession of drugs - Whether accused's credibility adversely affected by failure to put defence during prosecution's case - Evidence Act 1950, ss. 27 & 114(g)
Siew Yoke Keong v. PP
(Raus Sharif PCA, Richard Malanjum CJ (Sabah & Sarawak), Hashim Yusoff, Abdull Hamid Embong, Ahmad Maarop FCJJ) [2013] 4 CLJ 149 [FC]

PROVIDENT FUND

Employer's contribution - Failure to pay contributions - Whether liable - Whether applicant an employee of second respondent within meaning of Employees Provident Fund Act 1991 - Whether applicant a person employed under a contract of service - Whether second respondent intended to employ applicant as an employee - Whether applicant's service was a contract for service - Whether applicant entitled to EPF contributions
Goi Ah Soong v. Kumpulan Wang Simpanan Pekerja & Anor
(Yaacob Md Sam J) [2013] 4 CLJ 262 [HC]

TORT

Damages - Negligence - Medical negligence - General damages - Claim for gynecological injuries, multiple scars and degloving injury, emotional distress and loss of sexual intimacy - Whether items awarded fair and reasonable
Norizan Abd Rahman v. Dr Arthur Samuel
(Siti Khadijah S Hassan Badjenid JC) [2013] 4 CLJ 275 [HC]

Damages - Negligence - Medical negligence - Special damages - Claim for employment of maid and extra nourishing food - Whether claim for special damages allowed when receipts not produced
Norizan Abd Rahman v. Dr Arthur Samuel
(Siti Khadijah S Hassan Badjenid JC) [2013] 4 CLJ 275 [HC]

Negligence - Medical negligence - Termination of pregnancy and insertion of contraceptive device in one single procedure - Nature and risks of procedure - Whether explained to patient - Negligence of doctor resulted in hysterectomy - Patient suffered pain, loss of sexual intimacy, multiple scars, emotional distress and inability to conceive - Whether apology of doctor constituted admittance of negligence - Whether doctor acted in accordance with standard of care in treating patient - Whether there was breach of duty of care owed to patient - Whether patient entitled to damages
Norizan Abd Rahman v. Dr Arthur Samuel
(Siti Khadijah S Hassan Badjenid JC) [2013] 4 CLJ 275 [HC]