Bulletin_31

CLJ Bulletin, Vol 2007, Issue 31

31 August 2007

CLJ Law MALAYSIA

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New This Week -	1. CLJ August (Part 4) 2007
	2. CLJ Supp August (Part 2) 2007

1. CLJ August (Part 4) 2007

COURT

FEDERAL COURT

Metramac Corporation Sdn Bhd v. Fawziah Holdings Sdn Bhd; Tan Sri Halim Saad & Che Abdul Daim Hj Zainuddin (Interveners)
(Adjudicative indepencence of judges - Written judgment - Adverse remarks and findings - Whether reminiscent of real danger of bias - Whether judgment to be set aside - Whether remarks to be expunged from record) [2007] 4 CLJ 725

COURT OF APPEAL

Idris Hassan v. Lembaga Pertubuhan Peladang Perlis & Anor
(Dismissal - Misconduct - Whether disciplinary committee took into account extraneous matters) [2007] 4 CLJ 803

Kementerian Pertahanan Malaysia & Anor v. Malaysia International Shipping Corporation Bhd & Ors
(Marine insurance - Subrogation clause - Rights of insured against third parties subrogated to insurer - Locus standi of insurer to sue on behalf of insured) [2007] 4 CLJ 820

HIGH COURT

Hj Wan Habib Syed Mahmud & Anor v. The State Government of Sarawak
(Construction of statutes - Pension benefits of ex-Members of State Legislative Assembly - Whether entitled to corresponding increase upon increase of salary of serving Members) [2007] 4 CLJ 832

SUBJECT INDEX

ADMINISTRATIVE LAW

Remedies - Declaratory orders - Dismissal - Whether just and fair - Misconduct - Whether disciplinary proceeding properly conducted - Whether disciplinary committee took into account extraneous matters which plaintiff had no opportunity to rebut
Idris Hassan v. Lembaga Pertubuhan Peladang Perlis & Anor
(Mohktar Sidin, Zainun Ali & Heliliah Mohd Yusof JJCA) [2007] 4 CLJ 803 [CA]

CIVIL PROCEDURE

Judgment - Adjudicative independence of judges - Duty to render impartial decisions - Court of Appeal - Making adverse remarks on conduct of third parties and holding appellant beneficiary of such conduct - Whether remarks and findings baseless - Whether turning private claim for breach of contract into public interest litigation - Whether real danger of bias apparent in judgment - Whether judgment to be set aside
Metramac Corporation Sdn Bhd v. Fawziah Holdings Sdn Bhd; Tan Sri Halim Saad & Che Abdul Daim Hj Zainuddin (Interveners)
(Ahmad Fairuz CJ, Richard Malanjum CJ (Sabah & Sarawak), Abdul Hamid Mohamad, Alauddin Mohd Sheriff & Nik Hashim FCJJ) [2007] 4 CLJ 725 [FC]

Judgment - Written judgment - Court of Appeal - Expunction of contents of judgment - Applicable test - Whether remarks and findings offensive and unwarranted - Persons rebuked not parties or witnesss to suit - Whether comments unfair - Whether to be expunged
Metramac Corporation Sdn Bhd v. Fawziah Holdings Sdn Bhd; Tan Sri Halim Saad & Che Abdul Daim Hj Zainuddin (Interveners)
(Ahmad Fairuz CJ, Richard Malanjum CJ (Sabah & Sarawak), Abdul Hamid Mohamad, Alauddin Mohd Sheriff & Nik Hashim FCJJ) [2007] 4 CLJ 725 [FC]

CONTRACT

Breach - Damages - Compensation - Whether compensation unreasonably high and extortionate in nature - Whether a penalty - Whether not genuine estimate of damage likely to be suffered for breach thereof - Whether only entitled to damages to be assessed - Sum named in contract - Intention of parties - Contracts Act 1950 s. 75
Metramac Corporation Sdn Bhd v. Fawziah Holdings Sdn Bhd; Tan Sri Halim Saad & Che Abdul Daim Hj Zainuddin (Interveners)
(Ahmad Fairuz CJ, Richard Malanjum CJ (Sabah & Sarawak), Abdul Hamid Mohamad, Alauddin Mohd Sheriff & Nik Hashim FCJJ) [2007] 4 CLJ 725 [FC]

Formation - Prerequisites - Element of certainty - Payment to respondent of income earned by appellant under "future contracts" - Whether ambiguous - Whether lacking consideration - Whether void for uncertainty - Contracts Act 1950 s. 30
Metramac Corporation Sdn Bhd v. Fawziah Holdings Sdn Bhd; Tan Sri Halim Saad & Che Abdul Daim Hj Zainuddin (Interveners)
(Ahmad Fairuz CJ, Richard Malanjum CJ (Sabah & Sarawak), Abdul Hamid Mohamad, Alauddin Mohd Sheriff & Nik Hashim FCJJ) [2007] 4 CLJ 725 [FC]

Insurance - Policy - Contract of indemnity - Subrogation clause - Insured Government of Malaysia - Rights of insured against third parties subrogated to insurer - Whether insurer clothed with locus standi to institute proceedings in name of insured - Government Proceedings Act 1956, s. 24(3)
Kementerian Pertahanan Malaysia & Anor v. Malaysia International Shipping Corporation Bhd & Ors
(Gopal Sri Ram, Azmel Maamor & Zaleha Zahari JJCA) [2007] 4 CLJ 820 [CA]

INSURANCE

Marine insurance - Contract of indemnity - Subrogation clause - Insured Government of Malaysia - Rights of insured against third parties subrogated to insurer - Locus standi of insurer - Whether could institute proceedings in name of insured - Indemnity clause - Whether triggered the moment insurer agreed to indemnify - Government Proceedings Act 1956, s. 24(3)
Kementerian Pertahanan Malaysia & Anor v. Malaysia International Shipping Corporation Bhd & Ors
(Gopal Sri Ram, Azmel Maamor & Zaleha Zahari JJCA) [2007] 4 CLJ 820 [CA]

STATUTORY INTERPRETATION

Construction of statutes - Legislative intent - Pension benefits - Former Members of State Legislative Assembly - Monthly salary of serving Members revised and increased - Whether ex-Members entitled to corresponding increase in pension - Members of the Administration and Members of Dewan Undangan Negeri (Remuneration, Pensions and Gratuities) Ordinance 1980 [Sarawak], s. 3, regs. 20(1) & (3) of First Schedule thereof - Members of the Administration and Members of Dewan Undangan Negeri (Remuneration, Pensions and Gratuities) (Amendment) Ordinance 1992 [Sarawak], s. 2
Hj Wan Habib Syed Mahmud & Anor v. The State Government of Sarawak
(David Wong Dak Wah JC) [2007] 4 CLJ 832 [HC]

TRUSTS

Express trust - Requirements - Whether satisfied - Allegation that appellant holding money on trust for benefit of respondent - Confusion as to what respondent was claiming under purported trust - Whether void for uncertainty - Whether amounting to illegal reduction of appellant's share capital - Companies Act 1965 ss. 64, 365(1)
Metramac Corporation Sdn Bhd v. Fawziah Holdings Sdn Bhd; Tan Sri Halim Saad & Che Abdul Daim Hj Zainuddin (Interveners)
(Ahmad Fairuz CJ, Richard Malanjum CJ (Sabah & Sarawak), Abdul Hamid Mohamad, Alauddin Mohd Sheriff & Nik Hashim FCJJ) [2007] 4 CLJ 725 [FC]

2. CLJ Supp August (Part 2) 2007

COURT

HIGH COURT

Ghazali Rahman v. Majlis Perbandaran Batu Pahat
(Administrative law - Remedies - Judicial review - Certiorari) [2007] 8 CLJ 641

Kerajaan Negeri Melaka v. Ariffin & Associates
(Arbitration - Award - Setting aside) [2007] 8 CLJ 655

PP v. Rajan Sinniah
(Criminal law - Penal Code - Section 376 - Appeal against conviction and sentence - Rape of minor) [2007] 8 CLJ 674

Re Kai Peng Bhd
(Company law - Arrangements and constructions - Restraining order - Extension of, application for) [2007] 8 CLJ 703

Thamilvanen Kandasamy v. Timbalan Menteri Keselamatan Dalam Negeri, Malaysia & Ors
(Preventive detention - Detention order - Application for habeas corpus - Complaint of procedural non compliance) [2007] 8 CLJ 717

SUBJECT INDEX

ADMINISTRATIVE LAW

Remedies - Judicial review - Certiorari - Application to quash decision of Majlis Perbandaran Batu Pahat to terminate services of applicant - Letter of termination - Whether of legal effect - Whether the respondent was not a ‘local authority' within the meaning prescribed - Whether there was a failure of the respondent to comply with the statutory regulation which required the calling for a full report from the Head of Department and for the Local Authority to consider the said full report - Whether the applicant was terminated and was not dismissed - Whether there was premature retirement
Ghazali Rahman v. Majlis Perbandaran Batu Pahat
(Lau Bee Lan J) [2007] 8 CLJ 641 [HC]

ARBITRATION

Award - Setting aside - Application to set aside arbitrator's award - Whether arbitrator had misconstrued certain clauses - Whether arbitrator committed errors of law
Kerajaan Negeri Melaka v. Ariffin & Associates
(Low Hop Bing J) [2007] 8 CLJ 655 [HC]

COMPANY LAW

Arrangements and constructions - Restraining order - Extension of, application for - Whether ought to be granted - Companies Act 1965, s. 176(10A) - Whether requirements met - Whether there were ‘good reasons' to allow such an extension - Whether application allowed
Re Kai Peng Bhd
(Ramly Ali J) [2007] 8 CLJ 703 [HC]

CRIMINAL LAW

Penal Code - Section 376 - Appeal against conviction and sentence - Rape of minor - Evidence of victim - Whether fraught with factual inconsistencies and inaccuracies - Whether could be relied upon as basis for conviction - Corroboration - Whether victim's evidence corroborated by other witnesses for the prosecution - Differences in victim's testimony in court and in first information report - Whether there was an attempt to explain the differences - Failure of sessions court judge to consider or address the substantive inconsistencies in the evidence - Whether warranted a consideration of whether an error of law had been occasioned resulting in substantial miscarriage of justice - Failure to call chemist as witness - Whether prosecution discharged its burden of proof - Whether s. 114(g) of the Evidence Act 1950 should be invoked - Failure to produce chemical report - Whether fatal to prosecution's case - Whether victim's evidence inherently flawed - Whether finding of guilt and conviction of accused by trial judge wrong
PP v. Rajan Sinniah
(Nallini Pathmanathan JC) [2007] 8 CLJ 674 [HC]

EVIDENCE

Corroboration - Credibility and corroboration - Whether satisfied - Whether victim's evidence corroborated by other witnesses for the prosecution - Lack of corroboration - Uncertainty as to the identity of the assailant - Whether there was sufficient basis to conclude victim's evidence differed in material and relevant particulars - Failure of sessions court judge to consider or address the substantive inconsistencies in the evidence - Whether warranted a consideration of whether an error of law had been occasioned
PP v. Rajan Sinniah
(Nallini Pathmanathan JC) [2007] 8 CLJ 674 [HC]

Documentary evidence - First information report - Differences in victim's testimony in court and in first information report - Whether there was an attempt to explain the differences - Failure of sessions court judge to consider or address the substantive inconsistencies in the evidence - Whether warranted a consideration of whether an error of law had been occasioned resulting in substantial miscarriage of justice
PP v. Rajan Sinniah
(Nallini Pathmanathan JC) [2007] 8 CLJ 674 [HC]

Expert evidence - Evidence of chemist - Whether forensic chemical report of considerable significance - Failure to call chemist as witness - Whether prosecution discharged its burden of proof - Whether s. 114(g) of the Evidence Act 1950 should be invoked - Whether fatal to prosecution's case
PP v. Rajan Sinniah
(Nallini Pathmanathan JC) [2007] 8 CLJ 674 [HC]

PREVENTIVE DETENTION

Detention order - Application for habeas corpus - Complaint of procedural non compliance - Whether minister failed to provide explanation for delay in date of commencement of detention order - Whether applicant denied advocate at the hearing in breach of s. 5(2) of the Emergency (Public Order and Prevention of Crime) Ordinance 1969 - Whether applicant deprived of his right of a fair hearing in breach of art. 151 of the Federal Constitution - Whether habeas corpus issued
Thamilvanen Kandasamy v. Timbalan Menteri Keselamatan Dalam Negeri, Malaysia & Ors
(Nallini Pathmanathan JC) [2007] 8 CLJ 717 [HC]

CASE OF THE WEEK

KENG KIEN HOCK v. TIMBALAN MENTERI KESELAMATAN DALAM NEGERI MALAYSIA & ORS

PREVENTIVE DETENTION: Restriction order - Detention order against person - Whether appellant’s prolonged detention before issuance of restriction order unlawful - Proper test to be applied - Whether appellant’s detention amounted to detention in a "civil prison" - Whether there was due compliance with s. 3(2) Restricted Residence Act 1933 (Revised 1989) - Whether warrant of release issued - Restricted Residence Act 1933 (Revised 1989), ss. 2(1), (2), 3(2)

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