Legal Network Series

[2011] 1 LNS 865	DATO' ABDUL RAHIM HAJI HASHIM & ANOR v. SHAFIE ABD RAHMAN	TORT: Defamation - Libel - Defamatory statements - Whether 1st e-mail sent by defendant was defamatory of plaintiffs - Whether 2nd e-mail was written and published by defendant and whether its contents was defamatory of plaintiffs 1st plaintiff a senior management staff of 2nd plaintiff and President of the Malaysian Gas Association 2nd plaintiff, an internationally known oil and gas company - Whether 1st and 2nd plaintiff's reputation had been injured TORT: Defamation - Defences - Fair comment - Malice - Whether there was improper motive and malice on part of defendant in the publication of the offending words to the named recipients - Whether defendant's plea of fair comment sustainable
[2011] 1 LNS 868	HOE SENG TEIK SDN BHD & ANOR v. YEOH ENG CHONG & ANOR	CIVIL PROCEDURE: Trial - Witness - Objection - Election made by plaintiffs to call only one witness whose name had been disclosed - Plaintiffs now sought to introduce new evidence through undisclosed witnesses - Whether plaintiffs should be estopped from calling surprise witnesses contrary to their witness list midway through the trial - Whether plaintiff should be disallowed from breaching election made and refusing to be bound by directions they had agreed to observe
[2011] 1 LNS 907	LAM CHUN WING JOE v. PP	CRIMINAL PROCEDURE: Trial - Prosecution's case - Prima facie case - Drugs were fastened to accused body by masking tape - Ingredients of offence - Whether accused had custody and control over the drugs and was in actual physical possession of them - Whether accused had knowledge of the drugs - Whether presumption of trafficking under s. 37(da) of the Dangerous Drugs Act 1952 arose - Whether prosecution proved a prima facie case against the accused - Whether accused's defence should be called CRIMINAL PROCEDURE: Trial - Defence's case - Whether seized drugs were discovered on accused's body or found in a 'hand luggage' blue bag - Whether defence raised a reasonable doubt on the prosecution case - Whether prosecution proved its case beyond reasonable doubt against the accused
[2011] 1 LNS 946	KOH KIA YEONG v. LING HOONG HOONG	EVIDENCE: Adverse inference - Failure to call witness - Agreement executed by Mr. TC Koh on behalf of plaintiff - Maker of document present throughout trial but not called as a witness to give evidence that he was forced and compelled to enter into agreement - Whether s. 114(g) of the Evidence Act 1950 should be invoked - Whether an adverse inference should be drawn against plaintif TORT: Conspiracy to injure - Whether there was an agreement between two or more persons with the purpose of causing damage to plaintiff - Whether 1st defendant had wrongfully and illegally forced plaintiff to enter the Management in Transit program - Whether any overt act done in execution of that agreement which resulted in damage to the plaintiff
[2011] 1 LNS 950	KWANG HAP SIANG (SERVICES STATION) SDN BHD v. CALTEX OIL MALAYSIA LTD & ANOR	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 3)

COURT

FEDERAL COURT

Rusman Sulaiman v. PP
Arifin Zakaria CJ, Zulkefli Makinudin CJ (Malaya), Abdull Hamid Embong, Suriyadi Halim Omar, Hasan Lah FCJJ
(Criminal Law - Murder - Prima facie case - Whether established) [2013] 4 CLJ 305 [FC]

COURT OF APPEAL

Karn Woon Lin & Anor v. Cheah Chor Bok
Hishamudin Mohd Yunus, Zaharah Ibrahim, Azahar Mohamed JJCA
(Succession - Probate - Testamentary capacity - Existence of) [2013] 4 CLJ 329 [CA]

Ng Terk Chai v. PP & Other Appeals
Abdul Malik Ishak, Mohamed Apandi Ali, Balia Yusof Wahi JJCA
(Criminal Procedure; Courts - Charge - Amendment - Procedural defect - Whether curable) [2013] 4 CLJ 342 [CA]

PP v. Thenegaran Murugan & Another Appeal
Mohamed Apandi Ali, Mohtarudin Baki, Hamid Sultan Abu Backer JJCA
(Criminal Law; Evidence - Murder - Corroboration - Whether sentence inadequate) [2013] 4 CLJ 364 [CA]

Rozmi Yusof v. PP
Mohamed Apandi Ali, Linton Albert, Hamid Sultan Abu Backer JJCA
(Criminal Law; Evidence - Witness - Competency - Interested witness) [2013] 4 CLJ 384 [CA]

HIGH COURT

Kamalan Shaik Mohd v. PP
Zamani A Rahim J
(Criminal Procedure - Trial - Cross-examination of prosecution witness) [2013] 4 CLJ 396 [HC]

Ketua Pengarah Kastam DiRaja Malaysia & Ors v. Kenwood Electronics Malaysia Sdn Bhd
Lau Bee Lan J
(Customs And Excise - Customs duties - Under declaration - Customs Act 1967, ss. 65 & 65A) [2013] 4 CLJ 411 [HC]

Krishnan Gopalan v. Perniagaan Mula Bumi Sdn Bhd
Kamaludin Md Said JC
(Civil Procedure; Company Law - Costs - Priorities - Failure to pay taxed costs) [2013] 4 CLJ 427 [HC]

Teh Kheng Ping (Suing As The Lawful Son Of Lim Ah Sim, Deceased) v. Prudential Assurance Malaysia Bhd
See Mee Chun JC
(Insurance - Duty of disclosure - Material facts - Withholding of) [2013] 4 CLJ 441 [HC]

SUBJECT INDEX

CIVIL PROCEDURE

Costs - Taxed costs - Company wound-up - Failure to pay taxed costs - Whether litigant entitled to priority of payment - Whether compliance order obtained against liquidator to settle taxed costs - Companies Act 1965, ss. 264, 291 & 292
Krishnan Gopalan v. Perniagaan Mula Bumi Sdn Bhd
(Kamaludin Md Said JC) [2013] 4 CLJ 427 [HC]

COMPANY LAW

Winding-up - Priorities - Taxed costs - Whether litigant entitled to priority of payment - Whether compliance order obtained against liquidator to settle taxed costs - Companies Act 1965, ss. 264, 291 & 292
Krishnan Gopalan v. Perniagaan Mula Bumi Sdn Bhd
(Kamaludin Md Said JC) [2013] 4 CLJ 427 [HC]

COURTS

Court of Appeal - Power of - Setting aside conviction and sentence - Conviction and sentence based on amended charge - Failure by judge to draft amended charge - Whether occasioned failure of justice - Whether Court of Appeal equipped with wide power to set aside conviction and sentence - Courts of Judicature Act 1964, s. 60
Ng Terk Chai v. PP & Other Appeals
(Abdul Malik Ishak, Mohamed Apandi Ali, Balia Yusof Wahi JJCA) [2013] 4 CLJ 342 [CA]

CRIMINAL LAW

Penal Code - Section 302 - Murder - Appeal against conviction and sentence - Charge amended to one of culpable homicide not amounting to murder - Whether sentence inadequate - Whether testimony of witness corroborated - Whether prosecution established elements required to sustain conviction
PP v. Thenegaran Murugan & Another Appeal
(Mohamed Apandi Ali, Mohtarudin Baki, Hamid Sultan Abu Backer JJCA) [2013] 4 CLJ 364 [CA]

Penal Code - Section 302 - Murder - Conviction and sentence - Appeal against - Deceased found strangled in burning hotel room - Whether appellant's presence at scene of murder established - Whether evidence connected appellant to crime - Intention to cause bodily injury - Whether proved - Whether appellant's acts fell under s. 300(b) or (c) Penal Code - Whether appellant committed culpable homicide amounting to murder - Prima facie case - Whether established - Whether reasonable doubt arose in prosecution's case
Rusman Sulaiman v. PP
(Arifin Zakaria CJ, Zulkefli Makinudin CJ (Malaya), Abdull Hamid Embong, Suriyadi Halim Omar, Hasan Lah FCJJ) [2013] 4 CLJ 305 [FC]

Penal Code - Section 302 - Murder - Conviction and sentence - Appeal against - Self defence - Whether trial judge considered issue of self defence - Whether evidence showed deceased armed with weapon - Whether appellant suffered injuries - Whether facts attracted right of private defence under s. 96 Penal Code - Failure to consider defence in correct perspective - Whether rendered decision perverse - Failure of trial judge to direct himself according to law - Whether amounts to misdirection - Whether safe to convict - Federal Constitution, art. 5(1)
Rozmi Yusof v. PP
(Mohamed Apandi Ali, Linton Albert, Hamid Sultan Abu Backer JJCA) [2013] 4 CLJ 384 [CA]

CRIMINAL PROCEDURE

Charge - Amendment - Conviction and sentence based on amended charge - Failure by judge to draft amended charge - Procedural defect - Whether curable - Criminal Procedure Code, s. 422
Ng Terk Chai v. PP & Other Appeals
(Abdul Malik Ishak, Mohamed Apandi Ali, Balia Yusof Wahi JJCA) [2013] 4 CLJ 342 [CA]

Charge - Amendment - Procedure - Conviction and sentence based on amended charge - Whether amended charge drafted, read and explained to accused persons - Whether amended charge reflected on appeal record - Failure to amend charges - Whether occasioned failure of justice - Criminal Procedure Code, ss. 158 & 422
Ng Terk Chai v. PP & Other Appeals
(Abdul Malik Ishak, Mohamed Apandi Ali, Balia Yusof Wahi JJCA) [2013] 4 CLJ 342 [CA]

Trial - Cross-examination of prosecution witness - Failure of - Prosecution closed its case before defence completed cross-examination - Whether right of cross-examination mandatory - Whether s. 173(e) Criminal Procedure Code infringed - Whether violated art. 5(1) Federal Constitution - Whether resulted in miscarriage of justice
Kamalan Shaik Mohd v. PP
(Zamani A Rahim J) [2013] 4 CLJ 396 [HC]

CUSTOMS AND EXCISE

Customs duties - Under declaration - Claim for short paid import duty - Value of goods removed from licensed warehouses and licensed manufacturing warehouses - Whether there was under declaration of value on goods - Whether computation of import duty and sales tax correct - Customs Act 1967, ss. 65 & 65A
Ketua Pengarah Kastam DiRaja Malaysia & Ors v. Kenwood Electronics Malaysia Sdn Bhd
(Lau Bee Lan J) [2013] 4 CLJ 411 [HC]

Declaration - Under declaration - Claim for short paid import duty - Value of goods removed from licensed warehouses and licensed manufacturing warehouses - Burden or liability to pay import duty and sales tax - Whether there was under declaration of value on goods - Whether computation of import duty and sales tax correct - Customs Regulations 1977, reg. 29 - Customs Act 1967, ss. 65 & 65A
Ketua Pengarah Kastam DiRaja Malaysia & Ors v. Kenwood Electronics Malaysia Sdn Bhd
(Lau Bee Lan J) [2013] 4 CLJ 411 [HC]

EVIDENCE

Corroboration - Interested witness - Failure of prosecution to call independent witness to testify - Whether safe to sustain conviction
PP v. Thenegaran Murugan & Another Appeal
(Mohamed Apandi Ali, Mohtarudin Baki, Hamid Sultan Abu Backer JJCA) [2013] 4 CLJ 364 [CA]

Witness - Competency - Interested witness - Accused charged with murder - Whether witness participated in fight which caused death of deceased - Whether witness's evidence treated with caution - Failure by trial judge to follow directions in Magendran Mohan v. PP - Whether safe to convict - Federal Constitution, art. 5(1)
Rozmi Yusof v. PP
(Mohamed Apandi Ali, Linton Albert, Hamid Sultan Abu Backer JJCA) [2013] 4 CLJ 384 [CA]

INSURANCE

Duty of disclosure - Material facts - Withholding of - Deceased's failure to disclose that she was having breast tumour - Whether deceased knew she was having breast tumour at time of taking policy - Whether answers given by deceased in medical questionnaire was accurate and correct - Whether defendant had to prove fraudulent misrepresentation - Whether defendant liable to pay benefits under policy - Insurance Act 1996, ss. 147(4) & 150(1)
Teh Kheng Ping (Suing As The Lawful Son Of Lim Ah Sim, Deceased) v. Prudential Assurance Malaysia Bhd
(See Mee Chun JC) [2013] 4 CLJ 441 [HC]

SUCCESSION

Probate - Testamentary capacity - Existence of - Dispute between validity of two wills made at different time - Intention of deceased - Whether "suspicious circumstances" vitiated second will - Whether time to consider deceased's mental capacity was when will made - Whether evidence adduced as to deceased's mental disorder or delusion - Whether deceased lacked mental capacity - Kishan Singh v. Nichhattar Singh
Karn Woon Lin & Anor v. Cheah Chor Bok
(Hishamudin Mohd Yunus, Zaharah Ibrahim, Azahar Mohamed JJCA) [2013] 4 CLJ 329 [CA]