Bulletin_29

CLJ Bulletin, Issue 2009, Vol 29

06 November 2009

CLJ Law MALAYSIA

http://www.cljlaw.com

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New This Week -

1. CLJ Supp November (Part 1) 2009

COURT

HIGH COURT

Asia Commercial Finance (M) Bhd v. Bassanio Teo Yang
(Bankruptcy - Discharge - Appeal against) [2009] 9 CLJ 413

Formis Network Services Sdn Bhd v. Johnson Controls (M) Sdn Bhd
(Civil Procedure - Injunction - Application for) [2009] 9 CLJ 423

Lafarge Concrete (Malaysia) Sdn Bhd v. Gold-Trend Builders Sdn Bhd
(Company Law - Winding up - Petition - Seeking to wind up respondent company) [2009] 9 CLJ 430

Malaysian Airline System Bhd v. Tam Chin Siong & Ors
(Civil Procedure - Damages - Assessment) [2009] 9 CLJ 435

PP lwn. Sayuti Mohd Ali
(Undang-undang Jenayah - Akta Dadah Berbahaya 1952 - Seksyen 39B(1)(a)) [2009] 9 CLJ 446

PP v. Prabu Veeramuthu & Ors
(Criminal Law - Penal Code - Section 304(a)) [2009] 9 CLJ 470

PP v. Wong Kee Fatt
(Criminal Procedure - Sentence - Principles of) [2009] 9 CLJ 482

Renhome Bricks Factory Sdn Bhd & Anor v. Watah Umpin
(Damages - Appeal - Appeal against award made - Principle applicable) [2009] 9 CLJ 494

Tan Poh Thiam v. Nestle Products Sdn Bhd
(Administrative Law - Remedies - Certiorari, application for) [2009] 9 CLJ 504

SUBJECT INDEX

ADMINISTRATIVE LAW

Remedies - Certiorari, application for - To quash award of Industrial Court - Whether court's findings reasonable and fair on substantial merits of the case - Whether company justified in terminating applicant - Whether application for judicial review dismissed
Tan Poh Thiam v. Nestle Products Sdn Bhd
(Hue Siew Kheng JC) [2009] 9 CLJ 504 [HC]

BANKRUPTCY

Discharge - Appeal against - Exercise of discretion of DGI under s. 33A Bankruptcy Act 1967 to issue certificate of discharge - Whether fatal for DGI not to have prepared an updated report on bankrupt's conduct and affairs as required under s. 33 Bankruptcy Act 1967 - Whether there was an abuse of s. 33A Bankruptcy Act 1967 - Whether there was no reason for court to interfere with exercise of statutory discretion vested in DGI
Asia Commercial Finance (M) Bhd v. Bassanio Teo Yang
(Ravinthran Paramaguru JC) [2009] 9 CLJ 413 [HC]

CIVIL PROCEDURE

Damages - Assessment - Quantum of damages awarded - Whether proper - Whether damages arose from a breach of contract - Whether respondents underwent profound distress and anxiety due to appellant's failure to honour contract - Whether quantum of damages awarded reasonable and appropriate
Malaysian Airline System Bhd v. Tam Chin Siong & Ors
(Mohd Zawawi Salleh JC) [2009] 9 CLJ 435 [HC]

Injunction - Application for - Restraining defendant from presenting winding up petition - Whether filing of petition an abuse of process - Failure to make full and frank disclosure - Whether plaintiff's application must fail - Companies Act 1965, s. 218
Formis Network Services Sdn Bhd v. Johnson Controls (M) Sdn Bhd
(Hishamudin Yunus J) [2009] 9 CLJ 423 [HC]

COMPANY LAW

Winding up - Petition - Application for injunction to restrain defendant from presenting winding up petition - Whether filing of petition an abuse of process - Failure to make full and frank disclosure - Whether plaintiff's application must fail - Companies Act 1965, s. 218
Formis Network Services Sdn Bhd v. Johnson Controls (M) Sdn Bhd
(Hishamudin Yunus J) [2009] 9 CLJ 423 [HC]

Winding up - Petition - Seeking to wind up respondent company - Non payment of debt - Whether there was a reasonable explanation for non-payment - Whether respondent a solvent company able to meet terms of settlement agreement - Whether conditions under s. 218(1)(e) and (i) read together with (2)(a) met
Lafarge Concrete (Malaysia) Sdn Bhd v. Gold-Trend Builders Sdn Bhd
(Mary Lim JC) [2009] 9 CLJ 430 [HC]

CRIMINAL LAW

Penal Code - Section 304(a) - Sentence to 16 years imprisonment on each charge to run concurrently from dates of arrests - Appeal against - Whether inadequacy of sentences arose - Whether sentence should run concurrently or consecutively - Whether one transaction principle applied - Criminal Procedure Code, s. 165(1) - Child Act 2001, s. 91(1)(h)
PP v. Prabu Veeramuthu & Ors
(Abdul Alim Abdullah J) [2009] 9 CLJ 470 [HC]

CRIMINAL PROCEDURE

Sentence - Principles of - Accused charged for armed robbery - Penal Code, ss. 392 & 397 - Public interest - Deterrent sentence - Balance of interests of public and interests of accused - Factors considered - Penal Code, s. 34 - Firearms (Increased Penalties) Act 1971
PP v. Wong Kee Fatt
(Zamani Rahim JC) [2009] 9 CLJ 482 [HC]

DAMAGES

Appeal - Appeal against award made - Principle applicable - Whether appealing against every head of award without highlighting errors of law could render appeal frivolous, vexatious and an abuse of the court's process - Whether both plaintiff and defendant ought to assist court in assessing quantum - Whether sufficient and proper for defendant to merely put plaintiff to strict proof and deny liability and quantum
Renhome Bricks Factory Sdn Bhd & Anor v. Watah Umpin
(Hamid Sultan Abu Backer JC) [2009] 9 CLJ 494 [HC]

Special damages - Nursing care - Whether trial judge prohibited from awarding fair and reasonable sum for nursing care in the absence of evidence
Renhome Bricks Factory Sdn Bhd & Anor v. Watah Umpin
(Hamid Sultan Abu Backer JC) [2009] 9 CLJ 494 [HC]

Special damages - Transportation costs - Whether trial judge prohibited from awarding fair and reasonable sum for transportation costs in the absence of evidence
Renhome Bricks Factory Sdn Bhd & Anor v. Watah Umpin
(Hamid Sultan Abu Backer JC) [2009] 9 CLJ 494 [HC]

TORT

Negligence - Test for - Whether issue of negligence a question of fact or of law - Manner of determining negligence
Renhome Bricks Factory Sdn Bhd & Anor v. Watah Umpin
(Hamid Sultan Abu Backer JC) [2009] 9 CLJ 494 [HC]

INDEKS PERKARA

UNDANG-UNDANG JENAYAH

Akta Dadah Berbahaya 1952 - Seksyen 39B(1)(a) - Pengedaran dadah berbahaya - Kes prima facie - Sama ada terbukti terhadap tertuduh - Sama ada wujudnya percanggahan keterangan mengakibatkan keraguan pada kes pendakwaan
PP lwn. Sayuti Mohd Ali
(Ghazali Cha H) [2009] 9 CLJ 446 [HC]

CASE OF THE WEEK

MARDANI HUSSIN v. PP

CRIMINAL PROCEDURE: Defence - Adverse inference - Trial judge criticizing accused for failing to disclose defence to police at the time of arrest - Trial judge holding that disclosure of defence at the trial too late and a mere afterthought - Whether serious misdirection by trial judge - Whether substantial miscarriage of justice occasioned warranting appellate interference

CRIMINAL PROCEDURE: Defence - Calling for defence of accused - When defence ought to be called - Whether trial judge erred when he called for the defence merely to discern why accused had committed the crime

EVIDENCE: Presumption - Drug trafficking - Rebutting statutory presumption of trafficking - Whether on a balance of probabilities

EVIDENCE: Prima facie case - Establishing of - Whether prima facie case established when evidence adduced by prosecution satisfies requisite legal tests - Whether trial judge erred when he ruled prima facie case established in order to hear why accused committed the crime

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