Legal Network Series

[2011] 1 LNS 992	MKP CAPITAL BERHAD v. WLS (OVERSEA PROJECTS) LIMITED	CIVIL PROCEDURE: Judgments and orders - Foreign judgment - Setting aside - Registration of judgment of the High Court of Hong Kong - Validity of mode of service of Hong Kong writ on defendant - Whether plaintiff acted in excess of jurisdiction in appointing solicitor agents in Malaysia to effect service of writ CIVIL PROCEDURE: Affidavits - Affidavit in support of application - Execution of affidavit in English only - Whether there was sufficient compliance with the rules of Court - Whether the Court should have regard to justice of case and not technical objections
[2011] 1 LNS 1026	TAN TIONG PAN v. DATO' SERI TIONG KING SING	CIVIL PROCEDURE: Stay of execution - Application for - Pending appeal to the Court of Appeal - Illegal payment - Reversal of findings of illegality of the Sessions Court by the High Court - Whether constituted a special circumstance on the facts - Permanent residency of appellant - Whether payment to a Canadian permanent resident who is unemployed in Malaysia was a relevant consideration as a special circumstance for the Court to grant a stay - Adverse publicity to applicant/respondent - Whether payment under a Court Order was a special circumstance for a stay - Whether a stay of execution pending appeal should be granted CIVIL PROCEDURE: Appeal - Appeal to Court of Appeal - Leave to appeal - Whether application for stay premature as no appeal existed but only an application for leave to appeal - Whether application for leave to appeal is part of the process of appeal - Whether application for leave equivalent to and could be considered as an appeal from the decision of the lower Court being in process until the leave application is dismissed
[2011] 1 LNS 1101	SOH CHOO @ SOH AI CHOO & ANOR v. UNICO-DESA PLANTATIONS BERHAD & ORS	COMPANY LAW: Oppression - Whether conduct amounted to oppression - Disposal of shares belonging to 1st respondent to companies controlled by respondents by way of insider trading - Whether amounted to an oppression of petitioners' rights as minority shareholders - Whether 3rd to the 8th respondents abused their powers, breached fiduciary and directors' duties and acted oppressively, prejudicially and in disregard of petitioners' interests - Whether any wrongdoing - Whether requirements under the Companies Act 1965, s. 181 satisfied on the facts and law COMPANY LAW: Oppression - Whether conduct amounted to oppression - Whether disposal of shares was a "one-off" transaction and business decision taken for the benefit of 1st respondent - Whether impugned transactions could form the basis of oppression - Whether disposals of shares and its effect was directed at all shareholders of 1st respondent who benefited - Whether disposals were management decisions which could not constitute oppression or disregard of members' interests SECURITIES: Insider trading - Whether requisite elements of insider, inside information and insider trading satisfied - Whether 1st or other respondents, as the case may be, disposed or acquired the 12th respondent's shares by virtue of inside information possessed or gained as insiders - Whether allegations proved beyond reasonable doubt or even on a balance of probabilities - Whether respondents were insiders, the information was inside information and there was insider trading on the facts
[2012] 1 LNS 13	RHB BANK BERHAD v. KIAN SDN BHD	COMPANY LAW: Winding up - Liquidators - Sanction granted by Director General of Insolvency (DGI) as the liquidator of defendant to Messrs. Seelan and Associates to pursue/defend action against plaintiff - Application to set aside sanction - Whether DGI had the discretion whether to institute or defend any legal action on behalf of respondent - Whether DGI obliged to give reasons to support his decision to grant sanction and/or to inform the party aggrieved by such decision - Whether DGI's decision purely administrative
[2012] 1 LNS 14	LEE SHUAN CHAN v. LEE SHIN KUANG @ LEE SEN BIN & ORS	CONTRACT: Sale and purchase of property - Admission by plaintiff that he sold property to 1st defendant and executed the transfer documents - Whether there was a completed sale of property from plaintiff to 1st defendant LAND LAW: Transfer - Trust - Whether plaintiff was paid purchase price - Whether plaintiff ceased to have any interests in property - Whether plaintiff was a bare trustee of property for 1st defendant LAND LAW: Transfer - Fraud - Forgery - Whether plaintiff's signature on Form 14A was forged - Whether plaintiff signed the Form 14A at pages 1-4 blank in 1990 or whether he signed some other Form 14A before Chung Wai Meng and that his signatures in the Form 14A in IDB "B" were forged - Whether plaintiff succeeded in proving on a balance of probabilities that his signature was forged LAND LAW: Transfer - Validity of - Transfer of half share of property to 3rd and 4th defendants - Application for re-transfer of such share to plaintiff - Whether sale of property to 3rd and 4th defendants was a good and valid sale - Whether property would have passed to 3rd and 4th defendants with the execution and registration of the transfer documents - Whether plaintiff had a valid claim against 3rd and 4th defendants

CLJ 2013 Volume 5 (Part 1)

COURT

SUPREME COURT INDIA

M Manohar Reddy And Another v. Union Of India And Others
Aftab Alam, Ranjana P Desai JJ
(Constitutional Law - Constitution of India - Articles 217(1), 32 & 226 - Appointment of High Court Judge) [2013] 5 CLJ 1 [SC India]

COURT OF APPEAL

Dourin Murah v. PP
Abdul Wahab Patail, Mohamad Ariff Yusof JJCA, David Wong Dak Wah J
(Criminal Law - Murder - Non-insane automatism) [2013] 5 CLJ 25 [CA]

Jagathisan Muthoosamy v. PP
Hasan Lah, Abdul Malik Ishak, Azhar Ma'ah JJCA
(Criminal Law - Dangerous Drugs Act 1952 - Section 39B(1)(a) - Trafficking) [2013] 5 CLJ 36 [CA]

Masoumeh Gholami Khaveh v. PP
Abdul Malik Ishak, Azahar Mohamed, Balia Yusof Wahi JJCA
(Evidence - Witness - Absent witness) [2013] 5 CLJ 59 [CA]

Murugan Arumugam v. PP
Mohamed Apandi Ali, Alizatul Khair, Mohtarudin Baki JJCA
(Criminal Law; Evidence - Penal Code - Section 302 - Murder - Dying declaration) [2013] 5 CLJ 69 [CA]

Tai Foong Lam v. Hamdi Abdullah & Ors
Zainun Ali, Ramly Ali, Zaharah Ibrahim JJCA
(Partnership - Dissolution - Partnership property - Use of partnership name) [2013] 5 CLJ 89 [CA]

The State Government Of Sabah v. Sipadan Dive Centre Sdn Bhd & Ors
Hishamudin Mohd Yunus, Azahar Mohamed, Balia Yusof Wahi JJCA
(Land Law; Local Government - Occupation of State land - Legitimate expectation) [2013] 5 CLJ 107 [CA]

HIGH COURT

Awan Lela Sdn Bhd lwn. Aida Tajrina Mohamed Tahir
Asmabi Mohamad PK
(Kontrak - Kemungkiran - Pembatalan) [2013] 5 CLJ 130 [HC]

SUBJECT INDEX

CONSTITUTIONAL LAW

Constitution of India - Art. 124(4) and Art. 217 r/w Art. 124(4) - Impeachment of Judge of Supreme Court or High Court - "Misbehaviour" - Facts constituting misbehaviour though not suppressed by person appointed but coming to light long after appointment - Effect of - Held, in case there was no suppression and the facts come to light a long time after the person appointed has assumed office of a Judge and if Members of the two Houses of Parliament consider the discovered facts sufficiently serious to constitute misbehaviour and to warrant his removal, then he may still be removed from office by taking recourse to the provisions of Art. 124(4) or Art. 217 r/w Art. 124(4) as the case may be - Facts warranting inference of
M Manohar Reddy And Another v. Union Of India And Others
(Aftab Alam, Ranjana P Desai JJ) [2013] 5 CLJ 1 [SC India]

Constitution of India - Arts. 217(1) and 32 - Appointment of High Court Judge - "Effective consultation" - What is - Facts not knowable by authorities involved in consultative process nor known to putative appointee, held, cannot vitiate consultative process - Whether there was lack of effective consultation as allegedly R-3 was appointed as Judge of High Court in spite of pendency of criminal case against R-3 and whether a writ of quo warranto would lie - Neither R-3 nor constitutional functionaries involved in consultative process under Art. 217(1) being aware of pendency of criminal case under ss. 147, 342, 427 and 324 IPC for alleged involvement of R-3 in a students' strike in which they caused damage to government bus - FIR in said case being lodged against unknown persons - Said case being declared as long standing and all accused being discharged (as prosecution was allowed to withdraw case) - Nobody being aware of pendency of said criminal case at the time of appointment of R-3 as Judge of High Court – Effect
M Manohar Reddy And Another v. Union Of India And Others
(Aftab Alam, Ranjana P Desai JJ) [2013] 5 CLJ 1 [SC India]

Constitution of India - Arts. 217(1), 32 and 226 - Appointment of High Curt Judge - Whether there was suppression of facts by appointee regarding pendency of any criminal case against him - Determination of - Appointee allegedly being involved in students' strike - FIR in said case being lodged against unknown persons - Appointee being implicated in view of s. 161 CrPC statements - Said case being declared as long standing and all accused being discharged (as prosecution was allowed to withdraw case) - Although a proclamation under ss. 82 and 83 CrPC was ordered to be issued, record not showing any such publication - Record however showing service being effected against A-3 (appointees being A-4 and R-3) - There being nothing on the record to show that any attempt, let alone any serious attempt, was made to serve summons or issue non-bailable warrants on any of the accused persons - On facts, held, there was no suppression of material facts by appointee - From the record of the case it is very difficult to hold that appointee (R-3) was even aware of the pendency of a criminal case against him and that he was required to appear in court in connection with that case - It is relevant that before his appointment as High Court Judge R-3 was Additional Advocate General of the State and had he been aware of the case, he would have got it concluded one way or the other - Therefore, it is wrong to describe him as an absconder and a proclaimed offender - Hence, R-3's appointment, upheld - Criminal Procedure Code, 1973 - ss. 82, 83, 161 and 321 - Knowledge of criminal proceedings against a person - When can be imputed to that person - Words and Phrases - "Suppression of facts"
M Manohar Reddy And Another v. Union Of India And Others
(Aftab Alam, Ranjana P Desai JJ) [2013] 5 CLJ 1 [SC India]

Constitution of India - Arts. 32, 226, 129 and 215 - PIL - Malicious petition filed by two advocates allegedly in public interest but filed only to malign Judge of High Court - It is important to uphold the institutional integrity of the court system and protect court from uncalled for attacks and individual Judges from unjust infliction of injuries - Hence, petition dismissed and exemplary costs imposed against each advocate
M Manohar Reddy And Another v. Union Of India And Others
(Aftab Alam, Ranjana P Desai JJ) [2013] 5 CLJ 1 [SC India]

Constitution of India - Arts. 217(1), 32 and 226 - Appointment of High Court Judge - Scope of judicial review and grounds for issuance of writ of quo warranto - Reiterated, judicial review is permissible only on two grounds, namely: (i) lack of eligibility, and (ii) lack of effective consultation
M Manohar Reddy And Another v. Union Of India And Others
(Aftab Alam, Ranjana P Desai JJ) [2013] 5 CLJ 1 [SC India]

CRIMINAL LAW

Dangerous Drugs Act 1952 - Section 39B(1)(a) - Trafficking in 949g cannabis - Conviction and sentence - Appeal against - Dangerous drugs found on floor board of front left passenger's side of car - Actual possession - Whether proved - Presumption of trafficking under s. 37(da)(vi) of Dangerous Drugs Act 1952 - Whether unrebutted - Existence of another passenger not put to prosecution witnesses - Whether fatal - Evidence of purported passenger not credible - Whether conviction upheld
Jagathisan Muthoosamy v. PP
(Hasan Lah, Abdul Malik Ishak, Azhar Ma'ah JJCA) [2013] 5 CLJ 36 [CA]

Murder - Defence - Non-insane automatism - Whether defence passed threshold test at trial - Whether accused proven aware of nature of acts - Whether expert evidence adduced on mental condition of accused - Penal Code, ss. 84 & 302
Dourin Murah v. PP
(Abdul Wahab Patail, Mohamad Ariff Yusof JJCA, David Wong Dak Wah J) [2013] 5 CLJ 25 [CA]

Penal Code - Section 302 - Murder - Conviction and sentence - Appeal against - Murder of Indonesian maid - Victim violently assaulted resulting in severe injuries - Victim confined without food and water - Prosecution relied on circumstantial evidence, forensic and medical evidence - Dying declarations made by deceased to six witnesses - Whether assault was the 'operating cause' or 'substantive cause' of death - Whether conviction safe
Murugan Arumugam v. PP
(Mohamed Apandi Ali, Alizatul Khair, Mohtarudin Baki JJCA) [2013] 5 CLJ 69 [CA]

EVIDENCE

Circumstantial evidence - Murder - All other possibilities pertaining injuries sustained by deceased eliminated - All evidence unerringly pointing to guilt of appellant - Whether charge proven beyond reasonable doubt
Murugan Arumugam v. PP
(Mohamed Apandi Ali, Alizatul Khair, Mohtarudin Baki JJCA) [2013] 5 CLJ 69 [CA]

Dying declaration - Admissibility - Criteria for admissibility of dying declarations - Whether dying declarations of murder victim rightly admitted as evidence
Murugan Arumugam v. PP
(Mohamed Apandi Ali, Alizatul Khair, Mohtarudin Baki JJCA) [2013] 5 CLJ 69 [CA]

Witness - Absent witness - Prosecution's failure to secure attendance of witness - Whether witness important and material for defence's case - Whether witness' evidence could raise reasonable doubt on prosecution's case - Whether appellant deprived of fair trial - Whether conviction safe
Masoumeh Gholami Khaveh v. PP
(Abdul Malik Ishak, Azahar Mohamed, Balia Yusof Wahi JJCA) [2013] 5 CLJ 59 [CA]

Witness - Credibility - Discrepancies in evidence of witness - Witness not impeached by prosecution - Whether trial judge had discretion to accept some parts and reject other parts of evidence
Murugan Arumugam v. PP
(Mohamed Apandi Ali, Alizatul Khair, Mohtarudin Baki JJCA) [2013] 5 CLJ 69 [CA]

LAND LAW

Crown/State land - Occupation of State land - Legitimate expectation - Breach of - Respondents operating dive resorts on Sipadan Island ordered to demolish buildings and structures and to vacate - Failure to comply - Reliance on principles of acquiescence and legitimate expectation - Whether misconceived - Whether respondents' presence on State land in accordance with Sabah Land Ordinance - Legal immunity or proprietary rights - Entitlement to lengths of notice to demolish buildings and structures on land - Whether respondents illegally trespassing on State land
The State Government Of Sabah v. Sipadan Dive Centre Sdn Bhd & Ors
(Hishamudin Mohd Yunus, Azahar Mohamed Balia Yusof Wahi JJCA) [2013] 5 CLJ 107 [CA]

LOCAL GOVERNMENT

Buildings - Demolition - Demolition of dive resorts on Sipadan Island - Order of - Failure to complete demolition - Respondents' reliance on principles of acquiescence and legitimate expectation - Whether misconceived - Whether respondents' presence on State land in accordance with Sabah Land Ordinance - Legal immunity or proprietary rights - Whether respondents entitled to lengths of notice to demolish buildings and structures on land - Whether respondents illegally trespassing on State land
The State Government Of Sabah v. Sipadan Dive Centre Sdn Bhd & Ors
(Hishamudin Mohd Yunus, Azahar Mohamed Balia Yusof Wahi JJCA) [2013] 5 CLJ 107 [CA]

PARTNERSHIP

Dissolution - Partnership property - Partnership name - Whether partners of dissolved legal firm could continue practice under dissolved firm's name
Tai Foong Lam v. Hamdi Abdullah & Ors
(Zainun Ali, Ramly Ali, Zaharah Ibrahim JJCA) [2013] 5 CLJ 89 [CA]

Partnership property - Legal firm - Use of partnership name - No partnership agreement - Notice of dissolution issued by one partner - Whether other partners could continue practice under dissolved partnership's name - Whether goodwill of partnership sold or assigned
Tai Foong Lam v. Hamdi Abdullah & Ors
(Zainun Ali, Ramly Ali, Zaharah Ibrahim JJCA) [2013] 5 CLJ 89 [CA]

INDEKS PERKARA

KONTRAK

Kemungkiran - Pembatalan - Perjanjian pelaburan - Sama ada terdapat kemungkiran terma perjanjian - Sama ada perjanjian pelaburan bercanggah dengan peruntukan nyata undang-undang - Sama ada wujud balasan yang dilarang oleh undang-undang - Sama ada perjanjian pelaburan wajar dikuatkuasakan
Awan Lela Sdn Bhd lwn. Aida Tajrina Mohamed Tahir
(Asmabi Mohamad PK) [2013] 5 CLJ 130 [HC]

Pembentukan - Balasan - Perjanjian pelaburan antara plaintif dan defendan - Sama ada wujud balasan yang dilarang oleh undang-undang - Jika balasan akan menggagalkan objek undang-undang dan bertentangan dengan polisi awam - Sama ada perjanjian pelaburan sah dan wajar dikuatkuasakan
Awan Lela Sdn Bhd lwn. Aida Tajrina Mohamed Tahir
(Asmabi Mohamad PK) [2013] 5 CLJ 130 [HC]

Terma-terma - Perjanjian - Perjanjian pelaburan - Sama ada melibatkan penyerahan penuh operasi dan pengurusan perniagaan - Sama ada wujud suatu penyerahan hak - Sama ada tindakan pihak-pihak mematuhi peruntukan s. 6 Akta Kemajuan Petroleum 1974
Awan Lela Sdn Bhd lwn. Aida Tajrina Mohamed Tahir
(Asmabi Mohamad PK) [2013] 5 CLJ 130 [HC]