| CLJ Bulletin, Issue 2014, Vol 27 04 July 2014 Print this page 
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New This Week
1. Cases(s) Of The Week
a) PP v. DATO' SERI ANWAR IBRAHIM
b) FUTURE GROWTH SDN BHD & ORS v. KOPERASI PEMBANGUNAN DESA & ORS
c) PP lwn. LIM THIAN HOCK [2014] 1 SMC 228
2. Latest Cases
3. Articles
4. Legislation Highlights
c) PU(A)
d) PU(B)
PP v. DATO' SERI ANWAR IBRAHIM
FEDERAL COURT, PUTRAJAYA
SURIYADI HALIM OMAR FCJ, AHMAD MAAROP FCJ, HASAN LAH FCJ, ABU SAMAH NORDIN FCJ, RAMLY ALI FCJ
[CRIMINAL APPEAL NO: 05-21-02-2014]
31 MARCH 2014
CRIMINAL PROCEDURE: Appeal - Interlocutory appeal - Interlocutory appeal against ruling of Court of Appeal - Whether ruling did not dispose of rights of parties - Whether not a "decision" in law - Whether non-appealable - Whether criminal matter appealed against amenable to be heard by Federal Court - Courts of Judicature Act 1964 ss. 3, 61, 87
CRIMINAL PROCEDURE: Jurisdiction of court - Federal Court - Interlocutory appeal to - Appeal emanating from decision of Court of Appeal and originating from High Court - Whether appeal within threshold of s. 87 Courts of Judicature Act 1964 - Whether criminal matter appealed against amenable to be heard by Federal Court - Courts of Judicature Act 1964 ss. 3, 61, 87
EVIDENCE: Fresh or further evidence - Calling of - Prerequisites and principles - Whether new evidence already available at trial - Whether relevant to issues at hand - R v. Parks - Applicability - Courts of Judicature Act 1964 ss. 3, 61, 87
FUTURE GROWTH SDN BHD & ORS v. KOPERASI PEMBANGUNAN DESA & ORS
COURT OF APPEAL, PUTRAJAYA
RAMLY ALI JCA, CLEMENT SKINNER JCA, ABDUL AZIZ RAHIM JCA
[CIVIL APPEAL NO: S-01-137-2011]
20 DECEMBER 2013
CONTRACT: Specific performance - Breach of undertaking - Application for - Alienation of land - Sabah Limitation Ordinance, Sch. Item 95 - Whether action time-barred - Whether period of limitation extended by acknowledgements - Whether continuing breach of contract - Whether dividends payable could be set off against claim for compensation for breach of undertaking which was time-barred - Sabah Limitation Ordinance, s. 19
CIVIL PROCEDURE: Action - Limitation of action - Application for specific performance - Breach of undertaking - Alienation of land - Sabah Limitation Ordinance, Sch. Item 95 - Whether action time-barred - Whether period of limitation extended by acknowledgements - Whether continuing breach of contract - Whether dividends payable could be set off against claim for compensation for breach of undertaking which was time-barred - Sabah Limitation Ordinance, s. 19
PP lwn. LIM THIAN HOCK [2014] 1 SMC 228 
MAHKAMAH MAJISTRET, BATU PAHAT
MOHD ZULHILMI IBRAHIM MJ
[KES TANGKAP NO: YA 83-1007-08-12]
23 DISEMBER 2013
UNDANG-UNDANG JENAYAH: Kanun Keseksaan - Seksyen 379 - Mencuri buah kelapa sawit - Intipati kesalahan - Sama ada tertuduh mempunyai niat curang untuk menyebabkan kedapatan salah terhadap dirinya atau kehilangan salah terhadap orang lain - Sama ada dibuktikan - Sama ada tertuduh pemilik ladang kelapa sawit
KETERANGAN: Dengar cakap - Kebolehterimaan - Kesalahan mencuri buah kelapa sawit - Saksi dimaklumkan tentang kejadian oleh pihak ketiga - Sama ada keterangan saksi disokong oleh saksi-saksi lain - Sama ada keterangan saksi boleh diterima masuk
KETERANGAN: Saksi - Kegagalan pendakwaan memanggil saksi - Sama ada saksi-saksi material - Sama ada kegagalan memanggil saksi menyebabkan kelompangan dalam kes pendakwaan - Sama ada anggapan di bawah s. 114(g) Akta Keterangan 1950 berbangkit
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CHEAH WAI KONG v. PP & ANOTHER APPEAL [2014] 1 LNS 86
[2] Issue: Whether the learned Magistrate, having acquitted the accused of a charge under s. 135(1) of the Customs Act1967, is entitled, on the authority of PP v. Lee Wye Kheng [1976] 1 LNS 101 and s. 127(1) of the Act, to forfeit the seized goods forming the subject matter of the charge.
“The facts of the case of PP v. Lee Wye Kheng relied upon by the learned Magistrate can be easily distinguished from the facts of our instant case. Whilst the court in Lee Wye Kheng had made a positive finding that the gold coins were imported without a licence and were prohibited goods, and that they remained [2014] 1 SMC Judicial Quotes 335 prohibited goods notwithstanding that the respondent was acquitted of the offence charged, the same cannot be said in our instant case. In this case, the issue as to whether or not the goods seized were in fact prohibited goods was left unresolved right to the very end. In such circumstances, the court is satisfied that the learned Magistrate could not have had recourse to s. 127(1) to order the forfeiture of the goods seized since it was not proved that the goods were in fact prohibited goods.”
“No recourse could be had to s. 128 of the Customs Act 1967 either to order the forfeiture of the goods seized because this was not such a case where there was no prosecution with regard to the goods seized. Since the accused was in fact charged, the forfeiture of the goods would depend on s. 127 and whether the goods were prohibited goods. And since this was not established, the learned Magistrate was in error when he ordered the forfeiture of the goods seized to Customs. In the circumstances, and for the reasons aforesaid, the court made an order that the subject matter, namely the 60 helmets, be returned to the accused within two weeks.” – per Amelia Tee Hong Geok J in Cheah Wai Kong v. PP & Another Appeal [2014] 1 LNS 86.
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Legal Network Series
[2011] 1 LNS 1628 PARUWATHI MUTAYA v. PENGARAH HOSPITAL SELAYANG & ORS TORT: Negligence - Medical negligence - Proof of negligence - Whether First, Second, Fourth and Fifth defendantss were negligent in treating the deceased that resulted in deceased's death - Whether plaintiff established that First, Second, Fourth and Fifth defendants failed to conform to the degree or skill required of them as a medical practitioner in their performance of such duty and/or their treatment of deceased - Whether sufficient evidence adduced to prove that First, Second, Fourth and Fifth defendant were negligent and that their negligence had caused the death of deceased
TORT: Negligence - Medical negligence - Causation - Third, Fourth and Fifth defendants were not involved with treatment of deceased at the Selayang Hospital - Whether there was a break in the chain of evidence since Third and Fourth defendants did not treat the deceased after 25.1.2003 until deceased's death after being warded in the Selayang Hospital - Whether Third, Fourth and Fifth defendants wrongly brought in as parties to the suit - Whether plaintiff proved the causal link between the cause of death of deceased and the negligent act of Sixth defendant's servant or agent
TORT: Negligence - Duty of care - Breach of duty - Whether plaintiff proved there was a breach of duty of care or negligence by First, Second and Fifth defendants as servants of the Sixth defendant in treating deceased - Whether plaintiff also failed to prove the same as against the Fourth defendant and Third defendant
TORT: Negligence - Vicarious liability - Primary tortfeasor - Act or omission of the doctors who were public officers employed by Sixth defendant, as their principal - Plaintiff failed to cite and or identify respective public officer whom plaintiff alleged had committed the wrongdoings and or negligence that caused death of deceased - Whether plaintiff complied with the statutory requirement provided by Government Proceedings Act 1956 Act, ss. 5, 6 - Whether plaintiff's action ought to be dismissed[2013] 1 LNS 590 TSR BINA SDN BHD lwn. DEVAN & ASSOCIATES PROFESION GUAMAN: Kewajipan berjaga-jaga - Kecuaian - Sama ada terdapat pelanggaran kewajipan berjaga-jaga oleh peguam - Sama ada peguam telah menjalankan kewajipannya untuk menasihatkan anak guam berkenaan risiko-risiko yang mungkin akan dialami oleh anak guamnya di dalam sesuatu prosiding mahkamah - Sama ada penghakiman yang dimasukkan terhadap anak guam adalah atas kecuaian peguam
PROFESION GUAMAN: Kewajipan berjaga-jaga - Kegagalan untuk menepati arahan pengurusan kes mahkamah - Sama ada peguam telah memberi nasihat yang munasabah dan profesional kepada anak guam mengenai prosiding pengurusan kes
PROFESION GUAMAN: Liabiliti sebagai pegawai mahkamah - Penghinaan kepada mahkamah - Sama ada ketidakhadiran peguam pada hari pengurusan kes merupakan penghinaan kepada mahkamah
TORT: Ganti rugi - Kecuaian - Pecahan rantaian - Sama ada terdapat pecahan rantaian penyebab kehilangan dan ganti rugi - Sama ada anak guam mengalami kerugian akibat pelanggaran kewajipan berjaga-jaga oleh peguam - Sama ada kerugian yang dialami terlalu jauh[2013] 1 LNS 614 CHONG CHUN YET & ORS v. PENTADBIR TANAH DAERAH KOTA TINGGI & ORS ADMINISTRATIVE LAW: Judicial review - Application for - Certiorari - Whether decision made by 3rd respondent to relocate relevant cemetery lots - Whether applicants produced sufficient material facts and particulars pertaining to decision sought to be impugned - Whether subject lots were affected by the decision of 3rd respondent - Whether applicants clothed with the necessary locus standi to bring this action - Whether applicants merely assumed a decision had been made to relocate the subject lots when the record did not disclose existence of such a decision - Subject lots not specifically identified for relocation - Whether question of breach of natural justice in plaintiffs not having been granted a right of hearing arose [2014] 1 LNS 1 LIM LAI SENG & ANOR v. LIM GUAT SENG & ANOR EVIDENCE: Documentary evidence - Admissibility of - Once documents marked whether necessary for the litigant or his solicitors to direct the witness to documents - Whether the documents could speak for itself - Whether contents of documents could be proved other than by oral evidence - Whether admissibility of documents was subject to the pre-conditions stated in paragraphs (a) and (b) of s. 73A of the Evidence Act 1950 - Claim for dividends purportedly paid out of shares - Whether documents had no value evidentially speaking unless pre-conditions of s. 73A were complied with - Whether marking the documents without more amounted to having proved the contents of the documents itself - Whether defendant's claim on the dividends was sustainable
SUCCESSION: Will - Bequest - Deceased stated clearly in his Will regarding equal division of his estate between 4 sons - In cross-examination 1st and 2nd plaintiffs admitted inequality of distribution of shares among the partners - Whether defendants proved their counterclaim and were entitled to claim the shares due to them[2014] 1 LNS 18 L K NINO HOLDINGS SDN BHD v. WESCOURT DESIGN SDN BHD EVIDENCE: Documentary evidence - Documents made in the course of business - Statement of accounts - Whether RM250,000.00 debt had been paid by defendant - Whether RM250,000.00 was payment for mattresses sold to defendant as contended by plaintiff, or deducted by plaintiff for acquisition of the Botanic Garden showroom as contended by the defendant - Whether the entry on 1.10.2010 with the remark 'Purchase of Botanic ...' in the Statement reflected the set-off for the acquisition of the defendant's Botanic Showroom - Whether it showed the payment for the acquisition - Whether there was a complete defence of no debt owing to the plaintiff - Whether plaintiff estopped from denying that defendant's debt of RM250,000.00 had been set-off from the acquisition of the Botanic Garden showroom, which had been deducted from the accounts CLJ 2014 Volume 5 (Part 6)
COURT
COURT OF APPEAL
Dato' Ramesh Rajaratnam v. Datin Zaleha Abd Rahman & Ors
Azahar Mohamed, Mohamad Ariff Yusof, Hamid Sultan Abu Backer JJCA
(Bankruptcy - Bankruptcy notice filed before issuance of letters of administration - Exception to strict rule) [2014] 5 CLJ 669 [CA]Dato' Seri Anwar Ibrahim v. PP
Balia Yusof Wahi, Aziah Ali, Mohd Zawawi Salleh JJCA
(Criminal Procedure - Prosecution of appeal conducted by advocate appointed as Deputy Public Prosecutor - Whether Deputy Public Prosecutor should be disqualified) [2014] 5 CLJ 679 [CA]Public Bank Bhd v. Choong Yew Wah
Ramly Ali, Mah Weng Kwai, David Wong Dak Wah JJCA
(Bankruptcy - Discharge of bankrupt - Whether there was dereliction in DGI's statutory duty) [2014] 5 CLJ 695 [CA]HIGH COURT
Antara Steel Mills Sdn Bhd v. CIMB Insurance Brokers Sdn Bhd
SM Komathy Suppiah JC
(Insurance - Insurance broker - Liability under policy - Breach of duty) [2014] 5 CLJ 707 [HC]Rahya Trading Sdn Bhd v. Tong Khin Company Sdn Bhd & Anor
Abu Bakar Jais JC
(Companies And Corporations - Oppression - Minority shareholder - Companies Act 1965 s. 181) [2014] 5 CLJ 726 [HC]Rosli Dahlan lwn. The New Straits Times Press (M) Bhd & Yang Lain
Siti Khadijah S Hassan Badjenid PK
(Tort - Fitnah - Ganti rugi - Reputasi dicederakan melalui rencana - Tafsiran perkataan-perkataan dalam rencana) [2014] 5 CLJ 745 [HC]Sanabung Sampai & Ors v. Hydroflow Sdn Bhd & Ors
Ravinthran Paramaguru J
(Native Law And Custom - Land dispute - Customary rights over land - Determination of native customary rights) [2014] 5 CLJ 780 [HC]SUBJECT INDEX
ARBITRATION
Agreement - Effect of - Agreement that decision of arbitral tribunal shall be final, binding and non-appealable - Whether parties bound by decision - Whether parties precluded from challenging correctness of decision - Arbitration Act 2005 ss. 37 & 42
Antara Steel Mills Sdn Bhd v. CIMB Insurance Brokers Sdn Bhd
(SM Komathy Suppiah JC) [2014] 5 CLJ 707 [HC]BANKRUPTCY
Discharge - Discharge of bankrupt - Appeal against - Report of Director General of Insolvency ('DGI') - Whether there was reference to respondent's failure to comply with s. 16(2)(b) Bankruptcy Act 1967 - Whether omission to do so rendered DGI's report incomplete - Whether report lacked details of reasonable justifications for discharge - Whether there was consideration by DGI that respondent had numerous creditors - Whether discharge of bankrupt had taken interest of creditors into account - Whether there was dereliction in DGI's statutory duty - Whether appropriate case to allow discharge - Bankruptcy Act 1967, s. 33
Public Bank Bhd v. Choong Yew Wah
(Ramly Ali, Mah Weng Kwai, David Wong Dak Wah JJCA) [2014] 5 CLJ 695 [CA]Notice - Setting aside - Application for - Bankruptcy notice filed before issuance of letters of administration - Whether strict rule that letters of administration must be issued by High Court before any action taken for benefit of estate - Exception to strict rule - Order 15 r. 6A Rules of Court 2012 - Special circumstances - Whether bankruptcy proceeding to protect and preserve interest of estate of deceased
Dato' Ramesh Rajaratnam v. Datin Zaleha Abd Rahman & Ors
(Azahar Mohamed, Mohamad Ariff Yusof, Hamid Sultan Abu Backer JJCA) [2014] 5 CLJ 669 [CA]CIVIL PROCEDURE
Declaration - Application for - Determination of native customary rights - Whether provisional leases granted on native customary land - Action against first and second defendants struck out for want of prosecution - Plaintiffs maintained prayers for declaratory orders against third and fourth defendants - Whether granting of declaratory orders would affect rights of first and second defendants - Whether prayers could be granted despite action against first and second defendants struck out
Sanabung Sampai & Ors v. Hydroflow Sdn Bhd & Ors
(Ravinthran Paramaguru J) [2014] 5 CLJ 780 [HC]COMPANIES AND CORPORATIONS
Oppression - Minority shareholder - Company solely involved in business of letting of premises - Premises sold off - Minority shareholder attempted to dispose of and sell shares to majority shareholder - Offer to sell shares not accepted by company - Minority shareholder forced to continue with any other business company might venture into - Whether amounted to minority oppression - Whether disregard of minor shareholder's interest - Companies Act 1965 s. 181
Rahya Trading Sdn Bhd v. Tong Khin Company Sdn Bhd & Anor
(Abu Bakar Jais JC) [2014] 5 CLJ 726 [HC]CRIMINAL PROCEDURE
Prosecution - Appeal - Prosecution of appeal conducted by advocate appointed as Deputy Public Prosecutor - Application for disqualification - Advocate previously breached Legal Profession Act 1976 s. 94(3)(k), Legal Profession (Practice and Etiquette) Rules 1978 rr. 3(a), 4 and 5 and Legal Profession (Publicity) Rules 2001 - Principles applicable for disqualification - Whether Deputy Public Prosecutor should be disqualified
Dato' Seri Anwar Ibrahim v. PP
(Balia Yusof Wahi, Aziah Ali, Mohd Zawawi Salleh JJCA) [2014] 5 CLJ 679 [CA]INSURANCE
Insurance broker - Liability under policy - Breach of duty - Error in placement of insurance policy - Whether insurance broker exercised reasonable care and skill in obtaining insurance in accordance with instructions of principle - Whether principal under duty to examine documents - Whether insurance broker negligent
Antara Steel Mills Sdn Bhd v. CIMB Insurance Brokers Sdn Bhd
(SM Komathy Suppiah JC) [2014] 5 CLJ 707 [HC]LEGAL PROFESSION
Duty to court - Conflict of interest - Advocate previously breached Legal Profession Act 1976, Legal Profession (Practice and Etiquette) Rules 1978 and Profession (Publicity) Rules 2001 - Advocate appointed as Deputy Public Prosecutor - Advocate defended same witness who was found unreliable in previous case - Whether there was conflict of interest - Whether advocate should be disqualified as Deputy Public Prosecutor
Dato' Seri Anwar Ibrahim v. PP
(Balia Yusof Wahi, Aziah Ali, Mohd Zawawi Salleh JJCA) [2014] 5 CLJ 679 [CA]NATIVE LAW AND CUSTOM
Land dispute - Customary rights over land - Determination of native customary rights ('NCR') - Claim based on 'temuda' and 'tanah umai' - Whether provisional leases granted on NCR land - Existence of NCR denied by defendants - Whether plaintiffs established NCR over lands on balance of probabilities
Sanabung Sampai & Ors v. Hydroflow Sdn Bhd & Ors
(Ravinthran Paramaguru J) [2014] 5 CLJ 780 [HC]TORT
Negligence - Duty of care - Breach of duty - Error in placement of insurance policy by insurance broker - Whether insurance broker exercised reasonable care and skill in obtaining insurance in accordance with instructions of principle - Whether principal under duty to examine documents - Whether insurance broker negligent
Antara Steel Mills Sdn Bhd v. CIMB Insurance Brokers Sdn Bhd
(SM Komathy Suppiah JC) [2014] 5 CLJ 707 [HC]INDEKS PERKARA
TORT
Fitnah - Ganti rugi - Reputasi dicederakan melalui rencana - Sama ada dibuktikan - Sama ada rencana mengandungi imputasi memfitnah - Sama ada merujuk kepada plaintif - Tafsiran perkataan-perkataan dalam rencana - Standard terpakai - Sama ada berdasarkan fahaman pembaca biasa yang munasabah - Sama ada defendan-defendan mempunyai justifikasi untuk menerbitkan rencana - Sama ada pembelaan perlindungan bersyarat dan komen berpatutan berjaya dibuktikan - Sama ada plaintif berhak mendapat ganti rugi
Rosli Dahlan lwn. The New Straits Times Press (M) Bhd & Yang Lain
(Siti Khadijah S Hassan Badjenid PK) [2014] 5 CLJ 745 [HC]
CLJ 2014 Volume 5 (Part 7)
COURT
FEDERAL COURT
PP v. Dato' Seri Anwar Ibrahim
Suriyadi Halim Omar, Ahmad Maarop, Hasan Lah, Abu Samah Nordin, Ramly Ali FCJJ
(Criminal Procedure - Jurisdiction of court - Federal Court - Appeal emanating from decision of Court of Appeal and originating from High Court - Whether appeal within threshold of s. 87 Courts of Judicature Act 1964) [2014] 5 CLJ 805 [FC]COURT OF APPEAL
Ahmad Shazilly Ismail Bakti v. Nik Salma Zaidah Hj Wan Mohd Zaid
Clement Skinner, Lim Yee Lan, Rohana Yusuf JJCA
(Land Law - Indefeasibility of title and interests - Transfer - Encumbrances that bind a transferee of land) [2014] 5 CLJ 817 [CA]Mackt Logistics (M) Sdn Bhd v. Malaysian Airline System Bhd
Abdul Malik Ishak, Linton Albert, Abdul Aziz Abd Rahim JJCA
(Company Law - Separate legal entity - Lifting the veil of incorporation) [2014] 5 CLJ 851 [CA]Perbadanan Pengurusan Endah Parade v. Magnificient Diagraph Sdn Bhd
Hishamudin Mohd Yunus, Abdul Aziz Rahim, Mohamad Ariff Yusof JJCA
(Land Law - Strata title - Management corporation - Charges - Imposition of) [2014] 5 CLJ 881 [CA]Umw Equipment Sdn Bhd v. Parantaman Ramasamy & Anor
Low Hop Bing, Abu Samah Nordin, Alizatul Khair Osman JJCA
(Labour Law - Industrial Court - Dispute over wrongful dismissal) [2014] 5 CLJ 906 [CA]HIGH COURT
Asia General Equipment And Supplies Sdn Bhd & Ors v. Mohd Sari Datuk Okk Hj Nuar & Ors
Chew Soo Ho J
(Company Law - Shares - Mortgage - Transfer of shares in consideration for loan) [2014] 5 CLJ 919 [HC]SUBJECT INDEX
ADMINISTRATIVE LAW
Judicial review - Certiorari - Application for findings by Industrial Court that dismissal was harsh, disproportionate and without just cause or excuse - Whether Industrial Court took into account irrelevant matters in arriving at decision - Whether High Court erred in affirming Industrial Court's decision - Whether High Court's determination on matter of fact constituted jurisdictional error warranting appellate intervention
UMW Equipment Sdn Bhd v. Parantaman Ramasamy & Anor
(Low Hop Bing, Abu Samah Nordin, Alizatul Khair Osman JJCA) [2014] 5 CLJ 906 [CA]CIVIL PROCEDURE
Judgments and orders - High Court - Judgment of High Court as affirmed by Federal Court - Meaning of "the said shares" - Whether mortgaged ordinary shares or increased share capital - Whether there was any ambiguity - Whether inherent jurisdiction of court had to be exercised - Rules of Court 2012, O. 92 r. 4
Asia General Equipment And Supplies Sdn Bhd & Ors v. Mohd Sari Datuk Okk Hj Nuar & Ors
(Chew Soo Ho J) [2014] 5 CLJ 919 [HC]Notice of demand - Validity - Whether valid and proper - Call on bank guarantee - Whether subject to breach under sales agency agreement - Whether sales agency agreement breached - Whether letter of demand referred to sales agency agreement - Whether letter of demand vague and defective - Whether letter of demand rendered bad and invalid in law
Mackt Logistics (M) Sdn Bhd v. Malaysian Airline System Bhd
(Abdul Malik Ishak, Linton Albert, Abdul Aziz Rahim JJCA) [2014] 5 CLJ 851 [CA]COMPANY LAW
Separate legal entity - Lifting the veil of incorporation - Whether companies were separate legal entities - Whether trial judge erred in lifting veil of incorporation having found companies different legal entities - Whether piercing of corporate veil must be clearly pleaded - Whether failure to plead fatal
Mackt Logistics (M) Sdn Bhd v. Malaysian Airline System Bhd
(Abdul Malik Ishak, Linton Albert, Abdul Aziz Rahim JJCA) [2014] 5 CLJ 851 [CA]Shares - Mortgage - Transfer of shares in consideration for loan - Plaintiff's right to redeem shares upon repayment of loan - Wrongful foreclosure of plaintiff's shares - Share capital increased in breach of loan agreement - Claim for redemption of shares - Whether "the said shares" meant mortgaged ordinary shares or increased share capital
Asia General Equipment And Supplies Sdn Bhd & Ors v. Mohd Sari Datuk Okk Hj Nuar & Ors
(Chew Soo Ho J) [2014] 5 CLJ 919 [HC]CONTRACT
Guarantee - Bank guarantee - Conditional guarantee - Call on bank guarantee - Whether subject to breach under sales agency agreement - Whether sales agency agreement breached - Whether letter of demand referred to sales agency agreement - Whether liabilities or monies payable specified
Mackt Logistics (M) Sdn Bhd v. Malaysian Airline System Bhd
(Abdul Malik Ishak, Linton Albert, Abdul Aziz Rahim JJCA) [2014] 5 CLJ 851 [CA]Loan - Transfer of shares - Plaintiff's right to redeem shares upon repayment of loan - Wrongful foreclosure of plaintiff's shares - Share capital increased in breach of loan agreement - Claim for redemption of shares - Whether "the said shares" meant mortgaged ordinary shares or increased share capital
Asia General Equipment And Supplies Sdn Bhd & Ors v. Mohd Sari Datuk Okk Hj Nuar & Ors
(Chew Soo Ho J) [2014] 5 CLJ 919 [HC]CRIMINAL PROCEDURE
Appeal - Interlocutory appeal - Interlocutory appeal against ruling of Court of Appeal - Whether ruling did not dispose of rights of parties - Whether not a "decision" in law - Whether non-appealable - Whether criminal matter appealed against amenable to be heard by Federal Court - Courts of Judicature Act 1964 ss. 3, 61, 87
PP v. Dato' Seri Anwar Ibrahim
(Suriyadi Halim Omar, Ahmad Maarop, Hasan Lah, Abu Samah Nordin, Ramly Ali FCJJ) [2014] 5 CLJ 805 [FC]Jurisdiction of court - Federal Court - Interlocutory appeal to - Appeal emanating from decision of Court of Appeal and originating from High Court - Whether appeal within threshold of s. 87 Courts of Judicature Act 1964 - Whether criminal matter appealed against amenable to be heard by Federal Court - Courts of Judicature Act 1964 ss. 3, 61, 87
PP v. Dato' Seri Anwar Ibrahim
(Suriyadi Halim Omar, Ahmad Maarop, Hasan Lah, Abu Samah Nordin, Ramly Ali FCJJ) [2014] 5 CLJ 805 [FC]EVIDENCE
Fresh or further evidence - Calling of - Prerequisites and principles - Whether new evidence already available at trial - Whether relevant to issues at hand - R v. Parks - Applicability - Courts of Judicature Act 1964 ss. 3, 61, 87
PP v. Dato' Seri Anwar Ibrahim
(Suriyadi Halim Omar, Ahmad Maarop, Hasan Lah, Abu Samah Nordin, Ramly Ali FCJJ) [2014] 5 CLJ 805 [FC]LABOUR LAW
Industrial Court - Dispute over wrongful dismissal - Employee given warnings at previous domestic enquiry for similar misconduct - Admission to charge of coming late to work - Misconduct successfully proved - Findings by Industrial Court that dismissal was harsh, disproportionate and without just cause or excuse - Whether Industrial Court correct in findings - Whether High Court erred in affirming Industrial Court's decision
UMW Equipment Sdn Bhd v. Parantaman Ramasamy & Anor
(Low Hop Bing, Abu Samah Nordin, Alizatul Khair Osman JJCA) [2014] 5 CLJ 906 [CA]LAND LAW
Indefeasibility of title and interests - Transfer - Plaintiff as registered proprietor of land - Encumbrances that bind a transferee of land - National Land Code, s. 215(3) - Whether plaintiff's title could be impeached - Whether defendant a tenant exempt from registration - Statutory Declaration and Syariah Court Order given in favour of defendant - Whether conferred interest in land to defendant which was recognised or registrable under National Land Code - Whether defendant only given an equitable right to occupy land as gratuitous licensee - Whether defendant a tenant coupled with equity - Whether plaintiff's title to land lawfully and legally obtained - National Land Code, ss. 213(1), 323 & 340
Ahmad Shazilly Ismail Bakti v. Nik Salma Zaidah Hj Wan Mohd Zaid
(Clement Skinner, Lim Yee Lan, Rohana Yusuf JJCA) [2014] 5 CLJ 817 [CA]Ownership - Title to land - Plaintiff as registered proprietor of land - Whether plaintiff's title could be impeached - Whether defendant given absolute right to build a house and stay on the land - Statutory Declaration and Syariah Court Order given in favour of defendant - Whether conferred interest in land to defendant which was recognised or registrable under National Land Code - Whether defendant only given an equitable right to occupy land as gratuitous licensee - Whether defendant a tenant coupled with equity - Whether plaintiff's title to land lawfully and legally obtained - National Land Code, ss. 213(1), 215(3), 323 & 340
Ahmad Shazilly Ismail Bakti v. Nik Salma Zaidah Hj Wan Mohd Zaid
(Clement Skinner, Lim Yee Lan, Rohana Yusuf JJCA) [2014] 5 CLJ 817 [CA]Strata title - Management corporation - Charges - Imposition of - Whether management corporation empowered to levy charges on unit owners - Whether management corporation can only levy payments mandated by statute - Whether charges should be properly decided by unit holders in general meeting - Whether there could only be one fund and one payment - Whether trial judge wrong in assessment of evidence - Strata Titles Act 1985, ss. 41, 43, 45 & 46
Perbadanan Pengurusan Endah Parade v. Magnificient Diagraph Sdn Bhd
(Hishamudin Mohd Yunus, Abdul Aziz Rahim, Mohamad Ariff Yusof JJCA) [2014] 5 CLJ 881 [CA]Vacant possession - Claim for - Whether defendant unlawfully occupying land - Whether defendant given absolute right to build a house and stay on land - Statutory Declaration and Syariah Court Order given in favour of defendant - Whether conferred interest in land to defendant which was recognised or registrable under National Land Code - Whether defendant only given an equitable right to occupy land as gratuitous licensee - Whether defendant a tenant coupled with equity - Plaintiff as registered proprietor of land - Whether unimpeachable by virtue of s. 340 National Land Code - Whether plaintiff's title to land lawfully and legally obtained - National Land Code, ss. 213(1), 215(3), 323
Ahmad Shazilly Ismail Bakti v. Nik Salma Zaidah Hj Wan Mohd Zaid
(Clement Skinner, Lim Yee Lan, Rohana Yusuf JJCA) [2014] 5 CLJ 817 [CA]
CLJ 2014 Volume 5 (Part 8)
COURT
SC India
A.S.V. Narayanan Rao v. Ratnamala & Another
HL Gokhale, J Chelameswar JJ
(Criminal Law - Medical negligence - Death due to criminal medical negligence) [2014] 5 CLJ 929 [SC India]COURT OF APPEAL
Future Growth Sdn Bhd & Ors v. Koperasi Pembangunan Desa & Ors
Ramly Ali, Clement Skinner, Abdul Aziz Rahim JJCA
(Contract; Civil Procedure - Specific performance - Breach of undertaking - Whether action time-barred) [2014] 5 CLJ 937 [CA]HIGH COURT
Ashby Construction Sdn Bhd v. Bank Negara Malaysia
Lee Swee Seng JC
(Civil Procedure - Striking out - Whether action frivolous, vexatious and abuse of court process) [2014] 5 CLJ 955 [HC]Malaysian International Trading Corporation (Japan) Sdn Bhd v. Bentini SPA & Ors
Mary Lim J
(Moneylenders; Partnership - Existence of partnership - Whether joint venture relationship amounted to partnership – Liabilities of partners) [2014] 5 CLJ 983 [HC]PP v. Md Sarip Salleh & Anor
Amelia Tee Abdullah J
(Unincorporated Associations; Criminal Law - Societies - Co-operative society - Offences under ss. 10A & 45(1) Co-operative Societies Act 1993 - Whether elements of charge proved) [2014] 5 CLJ 1032 [HC]SUBJECT INDEX
CIVIL PROCEDURE
Action - Limitation of action - Application for specific performance - Breach of undertaking - Alienation of land - Sabah Limitation Ordinance, Sch Item 95 - Whether action time-barred - Whether period of limitation extended by acknowledgments - Whether continuing breach of contract - Whether dividends payable could be set off against claim for compensation for breach of undertaking which was time-barred - Sabah Limitation Ordinance, s. 19
Future Growth Sdn Bhd & Ors v. Koperasi Pembangunan Desa & Ors
(Ramly Ali, Clement Skinner, Abdul Aziz Rahim JJCA) [2014] 5 CLJ 937 [CA]Striking out - Application for - Purchaser of properties charged for money-laundering under Anti-Money Laundering and Anti-Terrorism Financing Act 2001 - Freezing and seizure order issued by Bank Negara Malaysia ('BNM') on properties - Vendor developer sued BNM for misfeasance and abuse of powers - Whether vendor disclosed reasonable cause of action - Whether properties already became assets of purchaser - Whether action frivolous, vexatious and abuse of court process - Rules of Court 2012, O. 18 r. 19(1)(a), (b) and (d)
Ashby Construction Sdn Bhd v. Bank Negara Malaysia
(Lee Swee Seng JC) [2014] 5 CLJ 955 [HC]CONTRACT
Specific performance - Breach of undertaking - Application for - Alienation of land - Sabah Limitation Ordinance, Sch Item 95 - Whether action time-barred - Whether period of limitation extended by acknowledgments - Whether continuing breach of contract - Whether dividends payable could be set off against claim for compensation for breach of undertaking which was time-barred - Sabah Limitation Ordinance, s. 19
Future Growth Sdn Bhd & Ors v. Koperasi Pembangunan Desa & Ors
(Ramly Ali, Clement Skinner, Abdul Aziz Rahim JJCA) [2014] 5 CLJ 937 [CA]CRIMINAL LAW
Co-operative Societies Act 1993 - Section 10A - Holding out as registered co-operative society - Whether elements of 'holding out' proved - Whether respondents present during board meeting - Whether minutes of board meeting reliable - Whether accuracy and veracity of minutes doubtful - Whether prosecution made out prima facie case
PP v. Md Sarip Salleh & Anor
(Amelia Tee Abdullah J) [2014] 5 CLJ 1032 [HC]Co-operative Societies Act 1993 - Section 45(1) - Liability of members of Board - Failure to exercise prudence and diligence in managing investment schemes - Payment of dividends to investors when no profits made - Allegation of - Whether proved - Whether losses sustained - Whether prosecution made out prima facie case
PP v. Md Sarip Salleh & Anor
(Amelia Tee Abdullah J) [2014] 5 CLJ 1032 [HC]Penal Code, 1860 - Section 304A - Medical negligence - Death due to criminal medical negligence - Maintainability of complaint for - Need to show not just negligence, but gross negligence - Criminal proceedings maintainable only if there is prima facie gross negligence as opined by independent doctor (preferably government doctor) as laid down in Jacob Mathew, (2005) 6 SCC 1 - Held, present case was not a case of gross negligence causing death of patient necessitating proceedings under S. 304A IPC - Hence, criminal proceedings quashed
A.S.V. Narayanan Rao v. Ratnamala & Another
(HL Gokhale, J Chelameswar JJ) [2014] 5 CLJ 929 [SC India]CRIMINAL PROCEDURE
Criminal Procedure Code, 1973 - Section 482 - Quashment of proceedings against doctor when medical negligence is not gross - Constitution of India - Article 136 - Quashment of proceedings against doctor when medical negligence was not gross - Evidence Act, 1872 - Section 45 - Opinion of third party doctors in determining medical negligence
A.S.V. Narayanan Rao v. Ratnamala & Another
(HL Gokhale, J Chelameswar JJ) [2014] 5 CLJ 929 [SC India]MONEYLENDERS
Commercial transaction - Contracts for sale and repurchase of equipment - Whether amounting to a moneylending transaction - Elements of money lending transaction - Moneylenders Act 1951,, s. 2
Malaysian International Trading Corporation (Japan) Sdn Bhd v. Bentini SPA & Ors
(Mary Lim J) [2014] 5 CLJ 983 [HC]PARTNERSHIP
Existence of partnership - Dispute as to existence - Essential elements of partnership - Intention, conduct and actions of parties - Whether joint venture relationship amounted to partnership - Whether partners liable to pay for assets purchased by joint venture - Whether parties intending joint venture to subsist as partnership - Whether parties held out as partnership - Whether payment of profits to partner in form of consultancy fees negated existence of partnership - Partnership Act 1961, s. 3(1)
Malaysian International Trading Corporation (Japan) Sdn Bhd v. Bentini SPA & Ors
(Mary Lim J) [2014] 5 CLJ 983 [HC]Liabilities of partners - Debt - Whether partner bound by contracts executed by other partners - Joint venture relationship amounting to a partnership
Malaysian International Trading Corporation (Japan) Sdn Bhd v. Bentini SPA & Ors
(Mary Lim J) [2014] 5 CLJ 983 [HC]UNINCORPORATED ASSOCIATIONS
Societies - Co-operative society - Offences under ss. 10A & 45(1) Co-operative Societies Act 1993 - Holding out as registered co-operative society - Whether elements of 'holding out' proved - Whether respondents present during board meeting - Whether minutes of board meeting reliable - Whether accuracy and veracity of minutes doubtful - Whether respondents exercised prudence and diligence in managing investment schemes - Whether ingredients under ss. 10A & 45(1) proved
PP v. Md Sarip Salleh & Anor
(Amelia Tee Abdullah J) [2014] 5 CLJ 1032 [HC]ARTICLELegal Network Series Article(s)
1. EQUALITY OF ARMS:
A FUNDAMENTAL PRINCIPLE OF FAIR TRIAL
GUARANTEE DEVELOPED BY INTERNATIONAL
AND REGIONAL HUMAN RIGHTS INSTRUMENTS [Read excerpt]
by: SHAJEDA AKTHER*, DR. ROHAIDA BINTI NORDIN** [2014] 1 LNS(A) lii2. MATRIMONIAL ISLAMIC DISPUTES IN MALAYSIA
- THE ALTERNATIVE DISPUTE RESOLUTION VIEWPOINT [Read excerpt]
by: GURU DHILLON* [2014] 1 LNS(A) liii3. DIVERSITY AND PLURALISM: A QUR'?NIC PERSPECTIVE* [Read excerpt]
by: MOHAMMAD HASHIM KAMALI** [2014] 1 LNS(A) livLEGISLATION HIGHLIGHTSPrincipal Acts
Number Title Date coming into force Repealing ACT 762 Goods And Services Tax Act 2014 1 July 2014 - Parts I, II, IV, VI and XVI, ss 10, 11, 17, 18, 33, 34, 35, 36, 37, 40, 44, 50, 56, 59, 61, 64, 65, 69, 71, 72, 73, 74, 75, 80, 81, 82, 83, 85, 86, 87, 92, 93, 95, 96, 97, 99, 100, 101, 102, 103, 104, 105, 107, 111, 112, 113, 114, 115, 116, 117, 118, 119, 120, 121, 160, 163, 183, 184 and 197, the First Schedule and Second Schedule to the Act; 1 April 2015 - Parts IX, XIII, XVII and XVIII, ss 9, 12, 13, 14, 15, 16, 38, 39, 41, 42, 43, 45, 46, 47, 48, 49, 51, 52, 53, 57, 58, 60, 62, 63, 66, 67, 68, 70, 84, 88, 89, 90, 91, 94, 98, 106, 108, 109, 110, 122, 154, 155, 156, 157, 158, 159, 161, 162, 185, 186, 187, 188, 189, 190, 191, 192, 193, 194, 195 and 196, the Third Schedule and Fourth Schedule to the Act [PU(B) 319/2014] -Nil- ACT 761 Finance Act 2014 See s 3 for the Income Tax Act; s 33 for the Stamp Act; s 36 for the Petroleum (Income Tax) Act; s 44 for the Real Property Gains Tax Act and s 50 for the Labuan Business Activity Tax Act -Nil- ACT 760 Fees (Department Of Museums Malaysia) (Validation) Act 2014 1 January 1991 to 11 June 2012 -Nil- ACT 759 Islamic Financial Services Act 2013 30 June 2013 [PU(B) 277/2013] - except para(s) 1 to 10 of Schedule 9 and para(s) 13 to 19 of Schedule 9 -Nil- ACT 758 Financial Services Act 2013 30 June 2013 [PU(B) 276/2013] - except s 129 and Schedule 9 -Nil- Amending Acts
Number Title Date coming into force Principal/Amending Act No ACT A1463 Corrosive And Explosive Substances And Offensive Weapons (Amendment) Act 2014 2 July 2014 ACT 357 ACT A1462 Judges' Remuneration (Amendment) Act 2014 1 January 2014 - sections 2, 4, 5 and 6; 1 July 2013 - section 3 ACT 45 ACT A1461 Supplementary Supply (2013) Act 2014 13 June 2014 -Nil- ACT A1460 Prison (Amendment) Act 2014 3 April 2014 ACT 537 ACT A1459 Prevention Of Crime (Amendment And Extension) Act 2014 2 April 2014 ACT 297 PU(A)
Number Title Date of Publication Date coming into force Principal/Amending Act No PU(A) 175/2014 Road Transport (Fee And Charge For Erecting Structures For Billboard On Federal Road) (Amendment) Rules 2014 26 June 2014 27 June 2014 PU(A) 405/2010 PU(A) 174/2014 Co-Operative Societies (Assumption Of Control) (Reappointment) (No. 2) Order 2014 25 June 2014 15 June 2013 to 14 June 2014 ACT 502 PU(A) 173/2014 Co-Operative Societies (Assumption Of Control) (Reappointment) Order 2014 25 June 2014 15 June 2013 to 14 June 2014 ACT 502 PU(A) 172/2014 Customs (Prohibition Of Imports) (Amendment) (No. 2) Order 2014 25 June 2014 1 July 2014 PU(A) 490/2012 PU(A) 171/2014 Income Tax Leasing (Amendment) Regulations 2014 24 June 2014 Year of assessment 2013 PU(A) 131/1986 PU(B)
Number Title Date of Publication Date coming into force Principal/Amending Act No PU(B) 324/2014 Notice Under Section 70 1 July 2014 Specified in column (3) of the First Schedule ACT 333 PU(B) 323/2014 Appointment Of Members Of The Competition Commission 1 July 2014 1 July 2014 to 31 July 2014 ACT 235 PU(B) 322/2014 Notification Of Values Of Crude Palm Oil Under Section 12 1 July 2014 1 July 2014 to 31 July 2014 ACT 235 PU(B) 321/2014 Notification Of Values Of Palm Kernel Under Section 12 1 July 2014 1 July 2014 ACT 762 PU(B) 320/2014 Appointment Of Effective Date For Imposition Of Goods And Services Tax 30 June 2014 1 July 2014 ACT 762 To view previous issues of the CLJ Bulletin, Click here
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