Bulletin_26

CLJ Bulletin, Issue 2009, Vol 26

16 October 2009

CLJ Law MALAYSIA

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New This Week -

1. CLJ October (Part 3) 2009

COURT

FEDERAL COURT

Chong Thian Fook & Ors v. Sarawak Shell Bhd & Ors
(Provident fund - Contributions - Allegations of unlawful deductions made by employer) [2009] 5 CLJ 605

Lee Kwan Woh v. PP
(Fundamental liberties - Right to fair trial - Whether accused deprived of right) [2009] 5 CLJ 631

PP v. Letchumanan Suppiah
(Accused's right of appeal) [2009] 5 CLJ 652

HIGH COURT

Teh Bon Heow v. PP
(Road traffic - Causing death by reckless or dangerous driving - Road Transport Act 1987, s. 41(5)) [2009] 5 CLJ 664

Tong Chor Say & Ors v. Batang Malaka Rubber Estate Sdn Bhd & Ors
(Members' rights - Oppression - Minority protection) [2009] 5 CLJ 672

SUBJECT INDEX

COMPANY LAW

Members' rights - Oppression - Minority protection - Action under s. 181 of Companies Act 1965 - Court to look at business realities of state of affairs of company - Company and subsidiary controlled by members of a family - Rights issue offer by subsidiary turned down by majority - Rights issue subscribed by majority in personal capacity - Whether oppressive conduct - Resolution forced through by majority at EGM to ratify decision not to subscribe to rights issue - Whether continuing course of oppression - Detrimental effect to minority shareholders - Substantial reduction caused to net tangible assets of company - Loss of potential profits
Tong Chor Say & Ors v. Batang Malaka Rubber Estate Sdn Bhd & Ors
(Azahar Mohamed J) [2009] 5 CLJ 672 [HC]

Member's rights - Oppression - Minority protection - No appeal on merits from management decisions honestly arrived at
Tong Chor Say & Ors v. Batang Malaka Rubber Estate Sdn Bhd & Ors
(Azahar Mohamed J) [2009] 5 CLJ 672 [HC]

CONSTITUTIONAL LAW

Fundamental liberties - Right to fair trial - Whether accused deprived of right - Submission of no case at close of prosecution's case - Federal Constitution, art. 5(1) - Criminal Procedure Code, s. 180(1)
Lee Kwan Woh v. PP
(Richard Malanjum CJ (Sabah & Sarawak), Hashim Yusoff & Gopal Sri Ram FCJJ) [2009] 5 CLJ 631 [FC]

CRIMINAL LAW

Dangerous Drugs Act 1952 - Section 39B(1)(a) - Trafficking in cannabis - Appeal against conviction and sentence - Right of accused to fair trial - Whether accused deprived of right - Submission of no case at close of prosecution's case - Judicial appreciation of evidence - Miscarriage of justice - Federal Constitution, art. 5(1) - Criminal Procedure Code, s. 180(1)
Lee Kwan Woh v. PP
(Richard Malanjum CJ (Sabah & Sarawak), Hashim Yusoff & Gopal Sri Ram FCJJ) [2009] 5 CLJ 631 [FC]

Dangerous Drugs Act 1952 - Section 39B(1)(a) - Trafficking in dangerous drugs - Reduction of charge to one of possession under s. 12(2) - Appeal by prosecution against decision - Cross-appeal by accused - Accused's right of appeal - Prejudice to accused - Competency of accused's cross-appeal - Courts of Judicature Act 1964, ss. 87, 92
PP v. Letchumanan Suppiah
(Alauddin Mohd Sheriff PCA, Hashim Yusoff & Zulkefli Makinudin FCJJ) [2009] 5 CLJ 652 [FC]

CRIMINAL PROCEDURE

Accused - Right to fair trial - Whether accused deprived of right - Submission of no case at close of prosecution's case - Federal Constitution, art. 5(1) - Criminal Procedure Code, s. 180(1)
Lee Kwan Woh v. PP
(Richard Malanjum CJ (Sabah & Sarawak), Hashim Yusoff & Gopal Sri Ram FCJJ) [2009] 5 CLJ 631 [FC]

Appeal - Reduction of charge - Appeal against reduction of charge against accused from one of drug trafficking to possession - Cross-appeal by accused - Accused's right of appeal - Prejudice to accused - Competency of accused's cross-appeal - Courts of Judicature Act 1964, ss. 87, 92
PP v. Letchumanan Suppiah
(Alauddin Mohd Sheriff PCA, Hashim Yusoff & Zulkefli Makinudin FCJJ) [2009] 5 CLJ 652 [FC]

Appeal - Right of - Reduction of charge against accused from one of drug trafficking to possession - Accused's right of appeal - Prejudice to accused - Competency of accused's cross-appeal - Courts of Judicature Act 1964, ss. 87, 92
PP v. Letchumanan Suppiah
(Alauddin Mohd Sheriff PCA, Hashim Yusoff & Zulkefli Makinudin FCJJ) [2009] 5 CLJ 652 [FC]

Charge - Reduction of - Appeal against reduction of charge against accused from one of drug trafficking to possession - Cross-appeal by accused - Accused's right of appeal - Prejudice to accused - Competency of accused's cross-appeal - Courts of Judicature Act 1964, ss. 87, 92
PP v. Letchumanan Suppiah
(Alauddin Mohd Sheriff PCA, Hashim Yusoff & Zulkefli Makinudin FCJJ) [2009] 5 CLJ 652 [FC]

Trial - Close of prosecution's case - Right of accused to fair trial - Whether accused deprived of right - Submission of no case at close of prosecution's case - Federal Constitution, art. 5(1) - Criminal Procedure Code, s. 180(1)
Lee Kwan Woh v. PP
(Richard Malanjum CJ (Sabah & Sarawak), Hashim Yusoff & Gopal Sri Ram FCJJ) [2009] 5 CLJ 631 [FC]

Trial - Close of prosecution's case - Whether accused ought to be acquitted - Judicial appreciation of evidence - Miscarriage of justice
Lee Kwan Woh v. PP
(Richard Malanjum CJ (Sabah & Sarawak), Hashim Yusoff & Gopal Sri Ram FCJJ) [2009] 5 CLJ 631 [FC]

EVIDENCE

Judge - Failure to judicially appreciate evidence - Maximum or positive evaluation of relevant evidence - Miscarriage of justice
Lee Kwan Woh v. PP
(Richard Malanjum CJ (Sabah & Sarawak), Hashim Yusoff & Gopal Sri Ram FCJJ) [2009] 5 CLJ 631 [FC]

LABOUR LAW

Provident Fund - Contributions - Allegations of unlawful deductions made by employer - Interpretation of regulations of fund - Whether employees entitled to full reimbursement and restitution - Employees Provident Fund Act 1951, s. 9(1) - Employees Provident Fund Act 1991, s. 47(1)
Chong Thian Fook & Ors v. Sarawak Shell Bhd & Ors
(Richard Malanjum CJ (Sabah & Sarawak), Arifin Zakaria & Nik Hashim FCJJ) [2009] 5 CLJ 652 [FC]

PROVIDENT FUND

Arrears of contributions - Failure to pay - Allegations of unlawful deductions made by employer - Sarawak and Sabah Retirement Benefit Fund - Interpretation of regulations of fund - Whether employees entitled to full reimbursement and restitution - Employees Provident Fund Act 1951, s. 9(1) - Employees Provident Fund Act 1991, s. 47(1)
Chong Thian Fook & Ors v. Sarawak Shell Bhd & Ors
(Richard Malanjum CJ (Sabah & Sarawak), Arifin Zakaria & Nik Hashim FCJJ) [2009] 5 CLJ 652 [FC]

ROAD TRAFFIC

Dangerous driving - Causing death by reckless or dangerous driving - Suspension of driver's driving licence pursuant to s. 41(5) Road Transport Act 1987 - Rationale of s. 41(5) Road Transport Act 1987 - Whether all classes of driver's driving licence ought to be suspended and confiscated - Whether driver ought to be allowed to retain the driving licence for classes other than the class related to the offence charged - Road Transport Act 1987, s. 41(5)
Teh Bon Heow v. PP
(Zamani A Rahim JC) [2009] 5 CLJ 664 [HC]

WORDS AND PHRASES

'Oppressive' - Section 181 of Companies Act 1965
Tong Chor Say & Ors v. Batang Malaka Rubber Estate Sdn Bhd & Ors
(Azahar Mohamed J) [2009] 5 CLJ 672 [HC]

CASE OF THE WEEK

ENGTEX MARKETING SDN BHD v. ZINMA HOUSING DEVELOPMENT SDN BHD & ANOR

COMPANY LAW: Winding up - Petition - Disposition of property - Company disposing of property before date of petition - Registration of transfer effected after presentation of petition and winding up - Whether not a court-approved disposition - Whether disposition and transfer void - Material date of transaction - Whether date of transfer and not date of registration - Companies Act 1965, s. 223 - Applicability
LAND LAW: Indefeasibility of title and interests - Sale and purchase of property - 2nd defendant purchasing property without notice of earlier sale to plaintiff - Whether a bona fide purchaser for value - Equitable interest of plaintiff under earlier sale agreement - Whether could override registered interest of 2nd defendant under latter agreement - Whether indefeasible title passed to 2nd defendant - National Land Code, s. 340(1), (2)(b)

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IN RE INQUEST INTO THE DEATH OF
SUJATHA KRISHNAN, DECEASED

CRIMINAL LAW: Coroner's court - Inquiry into death - Circumstances of death - Whether deceased committed suicide - Whether any party criminally involved in cause of death - Criminal Procedure Code, ss. 329, 337

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