CLJ Bulletin, Issue 2010, Vol 27
09 July 2010
CLJ Law MALAYSIA
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| New This Week | 1. Legislation Highlights |
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Principal Acts
NUMBER TITLE DATE COMING INTO FORCE REPEALING
ACT 711 Whistleblower Protection Act 2010 15 December 2010 [P.U.(B) 537/2010] - Nil - ACT 712 Competition Act 2010 1 January 2012 [P.U.(B) 410/2010] - Nil - ACT 713 Competition Commission Act 2010 Not Yet In Force - Nil - ACT 714 Suruhanjaya Pengangkutan Awam Darat Act 2010 3 June 2010 [PU(B) 262/2010] - Nil - ACT 715 Land Public Transport Act 2010 Not Yet In Force - Nil - Amending Acts
NUMBER TITLE DATE COMING INTO FORCE PRINCIPAL ACT NO
ACT A1374 Tourism Vehicles Licensing (Amendment) Act 2010 11 February 2010 [PU(B) 61/2010] ACT 594 ACT A1375 Educational Institutions (Discipline) (Amendment) Act 2010 1 December 2010 - PU(B)524/2010 ACT 174 ACT A1376 Commercial Vehicles Licensing Board (Amendment) Act 2010 31 January 2011 [P.U.(B) 44/2011] ACT 334 ACT A1377 Railways (Amendment) Act 2010 15 September 2010 [P.U.(B) 386/2010 ACT 463 ACT A1378 Criminal Procedure Code (Amendment) Act 2010 Not Yet In Force ACT 593 PU(A)
NUMBER TITLE DATE COMING INTO FORCE PRINCIPAL ACT NO
PU(A) 188/2010 Entertainments Duty (Exemption) (No 3) Order 2010 3 June 2010 ACT 103 PU(A) 189/2010 Entertainments Duty (Exemption) (No 4) Order 2010 3 June 2010 ACT 103 PU(A) 190/2010 Entertainments Duty (Exemption) (No 5) Order 2010 3 June 2010 ACT 103 PU(A) 191/2010 Customs (Values) (Crude Petroleum Oil) (No 11) Order 2010 3 June 2010 ACT 235 PU(A) 192/2010 Customs (Values) (Palm Oil) (No 23) Order 2010 7 June 2010 ACT 235 PU(B)
NUMBER TITLE DATE COMING INTO FORCE PRINCIPAL ACT NO
PU(B) 273/2010 Notification Revocation Of Appointment Of Quality Control Inspectors (Economic Affairs Assistant) (Amendment) 2010 17 June 2010 ACT 105 PU(B) 274/2010 Resolution Under Subsection 1(4) Of Dangerous Drugs (Special Preventive Measures) Act 1985 17 June 2010 ACT 316 PU(B) 275/2010 Temporary Exercise Of Ministerial Functions 17 June 2010 ACT 388 PU(B) 276/2010 Fatwa Under Section 34 17 June 2010 ACT 505 PU(B) 277/2010 Notice Under Subsection 70(2) 22 June 2010 ACT 333 Latest Bills
NUMBER TITLE DATE COMING INTO FORCE PRINCIPAL ACT NO
DR 20/2010 Judicial Appointments Commission (Amendment) Bill 2010 - ACT 695 DR 21/2010 Subordinate Courts (Amendment) Bill 2010 - ACT 92
1. Importing The Concept Of Plea Bargaining Into The Criminal Procedure Code In Malaysia [Read
excerpt]
By Srimurugan*
CITATION TITLE SUBJECT [2009] 1 LNS 9 [HC] Bumiputra-Commerce Bank Berhad v. Pamitex Industries Sdn Bhd & Ors BANKING: Banker and customer - Amount outstanding - Plaintiff sued for amount from 2nd and 3rd defendants based on Letter of Guarantee and Indemnity - Defendants claimed amount of indebtedness was inaccurate and incorrect - Whether Certificate of Indebtedness final and conclusive evidence of amount outstanding
CIVIL PROCEDURE: Pleadings - Facts not pleaded - Argument that Plaintiff had unilaterally and without the consent of the defendants changed the interest rate not pleaded in the statement of defence - Whether defendants estopped from raising issue at trial
[2007] 1 LNS 692 [HC] Xavier Lourde Nathan v. PP CRIMINAL LAW: Criminal intimidation - Penal Code, s. 506 - Custodial sentence imposed - Appeal against conviction and sentence - Cross-appeal against sentence - Extenuating circumstances - Whether proper case to invoke s. 173A of the Criminal Procedure Code [2008] 1 LNS 867 [HC] PP v. Murugesan Muniyandi CRIMINAL LAW: Penal Code - Section 304(a) - Culpable homicide not amounting to murder - Pouring boiling oil over deceased - Sentence - Factors to be considered - Public interest - Gravity of offence - Guilty plea - Whether a mitigating factor - Whether accused entitled to credit or discount for having pleaded guilty
CRIMINAL PROCEDURE: Sentencing - Mitigation - Factors to be considered - Whether credit or discount for guilty plea warranted - Whether any extenuating circumstances present
[2008] 1 LNS 868 [HC] Durai Raja Suppiah v. Timbalan Menteri Keselamatan Dalam Negeri, Malaysia & Ors PREVENTIVE DETENTION: Detention order - Detention under Emergency (Public Order and Prevention of Crime) Ordinance 1969, s. 4(1) - Validity - Date of service of notice of detention mentioned in affidavit of warden and in notice differed - No corrective affidavit filed - Whether mere typographical error
PREVENTIVE DETENTION: Detention - Application for habeas corpus - Service of notice of detention order admitted - Whether any requirement to prove when notice received - Whether non compliance with rule 5 of the Public Order and Prevention of Crime (Procedure) Rules 1972
STATUTORY INTERPRETATION: Construction of statutes - Intention of Parliament - Rules 5(1) and (2) of the Public Order and Prevention of Crime (Procedure) Rules 1972 - Service of notice of detention order on detainee - Whether any requirement to show when notice received
[2008] 1 LNS 869 [HC] Logeswaran Rethinam & Anor v. Timbalan Menteri Keselamatan Dalam Negeri, Malaysia & Ors PREVENTIVE DETENTION: Detention order - Detention under s. 4(1) Emergency (Public Order and Prevention of Crime) Ordinance 1969 - Validity - Contradiction of facts in affidavits by police officers alleged - Whether proved - Whether habeas corpus ought to be granted
PREVENTIVE DETENTION: Detention order - Detention under s. 4(1) Emergency (Public Order and Prevention of Crime) Ordinance 1969 - Validity - Allegation that Chairman and Advisory Board not properly appointed and constituted - Whether substantiated
PREVENTIVE DETENTION: Detention order - Advisory Board refusing to allow calling of Investigating Officer to be examined by detainees - Whether non compliance with r. 10(2) of the Public Order and Prevention of Crime (Procedure) Rules 1972 - Whether open to judicial review - Emergency Ordinance (Public Order and Prevention of Crime) Ordinance 1969, s. 11, Federal Constitution, Art. 151(3)
CONSTITUTIONAL LAW: Fundamental liberties - Preventive detention - Advisory Board refusing to allow calling of Investigating Officer to be examined by detainees pursuant to r. 10(2) of the Public Order and Prevention of Crime (Procedure) Rules 1972 - Issue of national security - Effect of s. 11 Emergency Ordinance (Public Order and Prevention of Crime) Ordinance 1969 and Art. 151(3) Federal Constitution - Whether open to judicial review
COURT
FEDERAL COURT
GS Gill Sdn Bhd v. Descente, Ltd
(Anton Piller order - Damages) [2010] 5 CLJ 613
PP v. Denish Madhavan
(Revision - Trafficking in dangerous drugs) [2010] 5 CLJ 635
COURT OF APPEAL
Lim Gait Tong v. The Development Bank Of Singapore Ltd
(Reciprocal enforcement of judgments - Setting aside of foreign judgment) [2010] 5 CLJ 644
Yogananthy AS Thambaiya v. Idris Osman
(Reinstatement of action - Absence of plaintiff and her counsel at hearing of case) [2010] 5 CLJ 654
HIGH COURT
Chee Kok Wing v. PP
(Joint trial - Anti-Corruption Act 1997, s. 51) [2010] 5 CLJ 662
Dr Meer Ahmad Mydin Meera v. Public Services Commission Malaysia & Ors
(Employment - Termination of services) [2010] 5 CLJ 675
Mohamad Jamaludin Mohamad Amin v. Zalina Isa
(Advocates and solicitors - Suspension from practice) [2010] 5 CLJ 695
Siti Esah Talib v. Mentiga Corporation Bhd
(Striking out - Winding up petition) [2010] 5 CLJ 712
SUBJECT INDEX
CIVIL PROCEDURE
Absence of party - Absence of plaintiff and her counsel at hearing of case - Case dismissed - Whether absence intentional or contumelious - Merits of plaintiff's action
Yogananthy AS Thambaiya v. Idris Osman
(Suriyadi Halim Omar, Ramly Ali & Azhar Ma'ah JJCA) [2010] 5 CLJ 654 [CA]
Action - Reinstatement of action - Absence of plaintiff and her counsel at hearing of case - Case dismissed - Whether absence intentional or contumelious - Merits of plaintiff's action
Yogananthy AS Thambaiya v. Idris Osman
(Suriyadi Halim Omar, Ramly Ali & Azhar Ma'ah JJCA) [2010] 5 CLJ 654 [CA]
Anton Piller order - Damages - Whether plaintiff entitled to claim damages for goods seized and removed from its premises by defendant who gave undertaking as to damages when Anton Piller orders set aside - Discretion of trial judge whether to order inquiry as to damages - Whether there were special circumstances for trial judge to refuse ordering such inquiry - Anton Piller orders set aside on defective affidavit rather than on merits - Defendant's conduct in continuing to sell products in violation of injunction orders taken into account - Defendant exported products outside its territorial restriction - Whether discretion of trial judge should be disturbed
GS Gill Sdn Bhd v. Descente, Ltd
(Zulkefli Ahmad Makinuddin, James Foong & Heliliah Mohd Yusof FCJJ) [2010] 5 CLJ 613 [FC]
Appeal - Fresh evidence - Application to adduce - Whether evidence to be adduced not specified and manner of its production not provided for by law - Reasonable diligence - Whether evidence unlikely to influence result of appeal
Lim Gait Tong v. The Development Bank Of Singapore Ltd
(Abdul Aziz Mohamad, Tengku Baharudin Shah & Mohd Nor Abdullah JJCA) [2010] 5 CLJ 644 [CA]
Judgments and orders - Foreign judgment - Setting aside - Whether there were defects rendering registration of judgment a nullity - Non-compliance of procedural requirements, whether invalidated action - Miscarriage of justice - Reciprocal Enforcement of Judgments Act 1958, s. 4(3) - Rules of the High Court 1980, O. 67 r. 5(2)
Lim Gait Tong v. The Development Bank Of Singapore Ltd
(Abdul Aziz Mohamad, Tengku Baharudin Shah & Mohd Nor Abdullah JJCA) [2010] 5 CLJ 644 [CA]
Parties - Absence - Absence of plaintiff and her counsel at hearing of case - Case dismissed - Whether absence intentional or contumelious - Merits of plaintiff's action
Yogananthy AS Thambaiya v. Idris Osman
(Suriyadi Halim Omar, Ramly Ali & Azhar Ma'ah JJCA) [2010] 5 CLJ 654 [CA]
Reciprocal enforcement of judgments - Setting aside of foreign judgment - Whether there were defects rendering registration of judgment a nullity - Non-compliance of procedural requirements, whether invalidated action - Miscarriage of justice - Reciprocal Enforcement of Judgments Act 1958, s. 4(3) - Rules of the High Court 1980, O. 67 r. 5(2)
Lim Gait Tong v. The Development Bank Of Singapore Ltd
(Abdul Aziz Mohamad, Tengku Baharudin Shah & Mohd Nor Abdullah JJCA) [2010] 5 CLJ 644 [CA]
Striking out - Winding up petition - Winding up proceedings constituting abuse of court's process - Petitioner refusing to accept payment by company without bona fide reasons - Petition filed for a collateral purpose - Attempt to use petition to recover debts owing to supporting creditors - Petitioner improperly filing petition without first attempting to obtain payment by other means - Petition struck out
Siti Esah Talib v. Mentiga Corporation Bhd
(VT Singham J) [2010] 5 CLJ 712 [HC]
COMPANY LAW
Winding up - Opposition to winding-up - Whether debt may be settled by company after filing of petition but before winding-up order granted - Whether petition filed for collateral purpose of benefiting third parties - Petition struck out
Siti Esah Talib v. Mentiga Corporation Bhd
(VT Singham J) [2010] 5 CLJ 712 [HC]
Winding up - Petition - Striking out - Application to strike out petition - Whether winding up proceedings constituted abuse of court's process - Company prepared to settle petitioner's debts - Whether petitioner's refusal to accept payment was not bona fide - Petition filed for a collateral purpose to recover debts to supporting creditors - Petitioner improperly filing petition without first attempting to obtain payment by other means - Petition struck out
Siti Esah Talib v. Mentiga Corporation Bhd
(VT Singham J) [2010] 5 CLJ 712 [HC]
CONSTITUTIONAL LAW
Public servants - Termination of service - Whether termination was in fact a dismissal - Whether it contravened art. 135(2) Federal Constitution - Contractual termination not synonymous with dismissal - Article 135(2) not applicable to contract officer whose terms and conditions are governed by agreement entered into
Dr Meer Ahmad Mydin Meera v. Public Services Commission Malaysia & Ors
(T Selventhiranathan JCA) [2010] 5 CLJ 675 [HC]
CRIMINAL PROCEDURE
Revision - Application for - Trafficking in dangerous drugs - Admissibility of oral confession - Reliance on confession - Whether had no bearing on court's finding that accused had possession of drugs - Indication by prosecution of provision relied upon to prove possession, whether necessary - Whether accused suffered any injustice - Rules of the Federal Court 1995, r. 137 - Evidence Act 1950, s. 27(1)
PP v. Denish Madhavan
(Zaki Tun Azmi CJ, James Foong & Heliliah Mohd Yusof FCJJ) [2010] 5 CLJ 635 [FC]
Trial - Joint trial - Joinder of charges - Seven offences of receiving bribes under s. 10(a)(bb) Anti-Corruption Act 1997 - Whether all offences part of same transaction by reason of continuity of action and community of purpose - Discretionary power of trial judge - Whether desirable for joint trial to be conducted - Anti-Corruption Act 1997, s. 51
Chee Kok Wing v. PP
(Azman Abdullah JC) [2010] 5 CLJ 662 [HC]
Trial - Prosecution's case - Evidence adduced by prosecution - Indication by prosecution of provision relied upon to prove possession, whether necessary - Evidence Act 1950, s. 27(1)
PP v. Denish Madhavan
(Zaki Tun Azmi CJ, James Foong & Heliliah Mohd Yusof FCJJ) [2010] 5 CLJ 635
[FC]
EMPLOYMENT
Contract of service - Termination of services - Notice of termination issued by second defendant although plaintiff's contract of service was with first defendant - Whether contractual right to terminate service lawfully delegated to second defendant - Plaintiff not given opportunity to show cause why his services should not be terminated - Whether law requires plaintiff be given a hearing before termination - Rules of natural justice could not be invoked - Termination of services was in accordance with agreement
Dr Meer Ahmad Mydin Meera v. Public Services Commission Malaysia & Ors
(T Selventhiranathan JCA) [2010] 5 CLJ 675 [HC]
EVIDENCE
Confession - Statements made to customs officer - Admissibility of - Reliance on confession - Whether had no bearing on court's finding that accused had possession of drugs
PP v. Denish Madhavan
(Zaki Tun Azmi CJ, James Foong & Heliliah Mohd Yusof FCJJ) [2010] 5 CLJ 635 [FC]
Fresh or further evidence - Application to adduce - Whether evidence to be adduced not specified and manner of its production not provided for by law - Reasonable diligence - Whether evidence unlikely to influence result of appeal
Lim Gait Tong v. The Development Bank Of Singapore Ltd
(Abdul Aziz Mohamad, Tengku Baharudin Shah & Mohd Nor Abdullah JJCA) [2010] 5 CLJ 644 [CA]
Relevancy - Conduct - Evidence of subsequent conduct - Whether conduct of petitioner subsequent to filing of winding up petition a relevant fact as to whether petition was filed for collateral purpose - Evidence Act 1950, s. 8
Siti Esah Talib v. Mentiga Corporation Bhd
(VT Singham J) [2010] 5 CLJ 712 [HC]
LEGAL PROFESSION
Advocates and solicitors - Misconduct - Suspension from practice - Appeal - Advocate and solicitor refusing to release to client balance of loan amounts paid into client's account - Finding by Disciplinary Committee that advocate and solicitor guilty of misconduct - Disciplinary Board suspending advocate and solicitor from practice for three years notwithstanding fine of RM5,000 recommended by Disciplinary Committee - Whether court to interfere with decision of Disciplinary Board - Punishment must depend on each individual case
Mohamad Jamaludin Mohamad Amin v. Zalina Isa
(Zamani A Rahim JC) [2010] 5 CLJ 695 [HC]
Disciplinary proceedings - Disciplinary Board - Disciplinary Board suspending advocate and solicitor from practice for three years notwithstanding fine of RM5,000 recommended by DC - Whether court ought to interfere
Mohamad Jamaludin Mohamad Amin v. Zalina Isa
(Zamani A Rahim JC) [2010] 5 CLJ 695 [HC]
Professional discipline - Misconduct - Suspension from practice - Appeal against - Discretion of Disciplinary Board - Whether court should interfere - Whether conduct unbefitting of an advocate and solicitor - Whether there were grounds to disagree with decision of Disciplinary Board - Legal Profession Act 1976, ss. 94(3), 103D
Mohamad Jamaludin Mohamad Amin v. Zalina Isa
(Zamani A Rahim JC) [2010] 5 CLJ 695 [HC]
Professional discipline - Procedure - Notice - Allegation that Disciplinary Board gave notice under s. 103D(2) Legal Profession Act 1976 but acted under s. 103D(3) - Whether notice was sufficient compliance with s. 103D(4)
Mohamad Jamaludin Mohamad Amin v. Zalina Isa
(Zamani A Rahim JC) [2010] 5 CLJ 695 [HC]
SALE OF GOODS
Goods sold and delivered - Whether defendant's transaction was an over the counter sale or an export sale which was prohibited by third licence agreement - Defendant's customer was a foreigner - Purchaser transacted in foreign currency - Defendant assisted in freighting goods to Hong Kong - Confirmation of balance of payment to defendant was by an overseas bank - Whether reasonable man taking all these elements in their entirety would conclude this was an export sale
GS Gill Sdn Bhd v. Descente, Ltd
(Zulkefli Ahmad Makinuddin, James Foong & Heliliah Mohd Yusof FCJJ) [2010] 5 CLJ 613 [FC]
CASE OF THE WEEK
ABDUL AZIZ MOHAMED SHARIFF v. PP
CRIMINAL LAW: Penal Code - Section 302 - Murder - Defence of intoxication - Whether available - Circumstances of the case - Whether prosecution had proved beyond reasonable doubt that appellant intended to cause death to the deceased
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