Bulletin_31

CLJ Bulletin, Issue 2010, Vol 31

06 August 2010

CLJ Law MALAYSIA

http://www.cljlaw.com

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New This Week	1. Legislation Highlights
	2. Articles
	a) Legal Network Series Articles
	3. Latest Cases
	a) Legal Network Series
	b) CLJ Volume 6 (Part 2) 2010

1. Legislation Highlights

PU(A)

NUMBER TITLE DATE COMING INTO FORCE
PRINCIPAL ACT NO

PU(A) 203/2010 Entertainments Duty (Exemption) (No 8) Order 2010 10 June 2010 ACT 103

PU(A) 204/2010 Control Of Supplies (Exemption) (Amendment) Order 2010 10 June 2010 ACT 122

PU(A) 205/2010 Customs (Values) (Palm Oil) (No 24) Order 2010 10 June 2010 ACT 235

PU(A) 206/2010 Mental Health Regulations 2010 10 June 2010 ACT 615

PU(A) 207/2010 Citizenship Rules (Amendment) 2010 10 June 2010 ACT 000

PU(B)

NUMBER TITLE DATE COMING INTO FORCE
PRINCIPAL ACT NO

PU(B) 289/2010 Special Direction Of The Minister 1 July 2010 ACT 621

PU(B) 290/2010 Special Direction Of The Minister 1 July 2010 ACT 621

PU(B) 291/2010 Special Direction Of The Minister 1 July 2010 ACT 621

PU(B) 292/2010 Special Direction Of The Minister 1 July 2010 ACT 621

PU(B) 293/2010 Appointment Of Members Of The Advisory Board 1 July 2010 ACT 190

Latest Bills

NUMBER TITLE DATE COMING INTO FORCE
PRINCIPAL ACT NO

DR 22/2010 Anti-Trafficking in Persons (Amendment) Bill 2010 - ACT 670

DR 23/2010 Children and Young Persons (Employment) (Amendment) Bill 2010 - ACT 350

2. Articles

a) Legal Network Series Articles

1. Product Safety In Asean: A Comparative Study Of Malaysia, Thailand, Indonesia, Singapore And Philippines Under The Consumer Protection Legislations ^{[Read
excerpt]}
By Rahmah Ismail & Syed Sagoff Alsagoff*

3. Latest Cases

a) Legal Network Series

CITATION TITLE SUBJECT

[2010] 1 LNS 338 [HC] Extreme System Sdn Bhd v. Ho Hup Construction Company Bhd & Ors
COMPANIES AND CORPORATIONS: Meetings - Calling of meetings - Requirement for special notice pursuant to ss. 128 (2) and 153 of the Companies Act 1965 - Two separate notices given in convening of extraordinary general meeting - Whether Second Notice was a mere correction or superseded First Notice - Whether Second Notice effective and operative

COMPANIES AND CORPORATIONS: Meetings - Notice - Requirement for special notice - Two separate notices of defendants' intention to convene extraordinary general meeting - Whether Second Notice contravened time limit prescribed by ss. 128 (2) and 153 of the Companies Act 1965 - Whether short notice

COMPANIES AND CORPORATIONS: Meetings - Notice - Short notice - Whether notice of meeting valid and proper - Whether s. 355 (1) of the Companies Act 1965 applicable

[2010] 1 LNS 341 [HC] Danalechumi Kannan v. Mayland Development Sdn Bhd COMPANIES AND CORPORATIONS: Winding up - Petition - Failure to make payment strictly in accordance with statutory notice of demand - Whether options to discharge debt limited to mode stated in notice of demand - Whether Respondent considered unable to pay its debts pursuant to s. 218(2) of Companies Act 1965 - Whether petitioner entitled to winding up order

[2009] 1 LNS 1235 [HC] Kamawang Enterprise Sdn Bhd & Anor v. Mascom (M) Sdn Bhd & Anor
CIVIL PROCEDURE: Contempt of court - Order of committal - Application to set aside - Clarification on the terms of committal order pending - Committal order sealed and perfected without 1^st plaintiff's knowledge - Whether order a nullity

CIVIL PROCEDURE: Contempt of court - Failure to comply with court order to make various payments - Whether amounts to interference with the administration of justice

CIVIL PROCEDURE: Contempt of court - Failure to comply with court order to make various payments - Whether contempt proved beyond reasonable doubt

CIVIL PROCEDURE: Contempt of court - Order of committal - Failure to include period of imprisonment in order - Effect thereof

CIVIL PROCEDURE: Contempt of court - Sentence - Principles applicable - Deterrent and coercive factors considered

CITATION	TITLE	SUBJECT
[2010] 1 LNS 338 [HC]	Extreme System Sdn Bhd v. Ho Hup Construction Company Bhd & Ors	COMPANIES AND CORPORATIONS: Meetings - Calling of meetings - Requirement for special notice pursuant to ss. 128 (2) and 153 of the Companies Act 1965 - Two separate notices given in convening of extraordinary general meeting - Whether Second Notice was a mere correction or superseded First Notice - Whether Second Notice effective and operative COMPANIES AND CORPORATIONS: Meetings - Notice - Requirement for special notice - Two separate notices of defendants' intention to convene extraordinary general meeting - Whether Second Notice contravened time limit prescribed by ss. 128 (2) and 153 of the Companies Act 1965 - Whether short notice COMPANIES AND CORPORATIONS: Meetings - Notice - Short notice - Whether notice of meeting valid and proper - Whether s. 355 (1) of the Companies Act 1965 applicable
[2010] 1 LNS 341 [HC]	Danalechumi Kannan v. Mayland Development Sdn Bhd	COMPANIES AND CORPORATIONS: Winding up - Petition - Failure to make payment strictly in accordance with statutory notice of demand - Whether options to discharge debt limited to mode stated in notice of demand - Whether Respondent considered unable to pay its debts pursuant to s. 218(2) of Companies Act 1965 - Whether petitioner entitled to winding up order
[2009] 1 LNS 1235 [HC]	Kamawang Enterprise Sdn Bhd & Anor v. Mascom (M) Sdn Bhd & Anor	CIVIL PROCEDURE: Contempt of court - Order of committal - Application to set aside - Clarification on the terms of committal order pending - Committal order sealed and perfected without 1^st plaintiff's knowledge - Whether order a nullity CIVIL PROCEDURE: Contempt of court - Failure to comply with court order to make various payments - Whether amounts to interference with the administration of justice CIVIL PROCEDURE: Contempt of court - Failure to comply with court order to make various payments - Whether contempt proved beyond reasonable doubt CIVIL PROCEDURE: Contempt of court - Order of committal - Failure to include period of imprisonment in order - Effect thereof CIVIL PROCEDURE: Contempt of court - Sentence - Principles applicable - Deterrent and coercive factors considered

b. CLJ Volume 6 (Part 2) 2010

COURT

FEDERAL COURT

PP v. Zulkifli Arshad
(Criminal Law - Dangerous drugs - Statutory presumption) [2010] 6 CLJ 121

COURT OF APPEAL

Datuk Musa Aman & Ors v. Tan Sri Chong Kah Kiat
(Civil Procedure - Action - Locus standi) [2010] 6 CLJ 134

Datuk Seri Ahmad Said Hamdan & Ors v. Tan Boon Wah
(Statutory Interpretation - Construction of statutes - Literal approach) [2010] 6 CLJ 142

Malayan Banking Bhd v. Koay Kang Chuwan & Anor
(Land Law - Indefeasibility of title - Registered owner) [2010] 6 CLJ 172

United Overseas Bank (Malaysia) Sdn Bhd v. UJA Sdn Bhd & Another Appeal
(Lien - Lien holder’s caveat) [2010] 6 CLJ 204

HIGH COURT

Chung Onn v. PP
(Penal Code - Sections 471 and 467) [2010] 6 CLJ 211

Guthrie Property Development Holding Bhd v. Baharuddin Hj Ali & Ors
(Legal Profession - Solicitor/client - Duty of care and skill) [2010] 6 CLJ 218

PP v. Tang Cheng Chai
(Customs And Excise - Prohibited goods - Smuggling offences) [2010] 6 CLJ 231

Sar-Alam Indah Sdn Bhd v. Chua Peng Hee
(Labour Law - Dismissal - Forced resignation) [2010] 6 CLJ 240

SUBJECT INDEX

CIVIL PROCEDURE

Action - Locus standi - Whether Foundation a private trust body - Essential pre-requisites of valid trust - Whether fulfilled - Whether respondent has legal standing to maintain action
Datuk Musa Aman & Ors v. Tan Sri Chong Kah Kiat
(Raus Sharif, Abdull Hamid Embong & Sulong Matjeraie JJCA) [2010] 6 CLJ 134 [CA]

CRIMINAL LAW

Dangerous drugs - Statutory presumption - Trafficking in dangerous drugs - Whether presumption of trafficking should be invoked - Failure of trial judge and Court of Appeal to invoke presumption - Whether fatal to prosecutions’ case - Whether respondent prejudiced - Trial judge established respondent had actual possession of the drugs - Respondent had opportunity to raise reasonable doubt in prosecution’s case - Respondent’s defence was considered in detail - Whether prosecution had proved beyond all reasonable doubt that respondent was trafficking in the drugs - Whether incumbent on this court to invoke presumption under Dangerous Drugs Act 1952, s. 37(da)(vi)
PP v. Zulkifli Arshad
(Augustine Paul, Hashim Yusoff & Mohd Ghazali Yusoff FCJJ) [2010] 6 CLJ 121 [FC]

Penal Code - Sections 471 and 467 - Forged document - Appeal against conviction and sentence - Whether there was a nexus between s. 471 and s. 467 Penal Code - Whether s. 465 Penal Code the correct section for punishment
Chung Onn v. PP
(Akhtar Tahir JC) [2010] 6 CLJ 211 [HC]

CUSTOMS AND EXCISE

Prohibited goods - Smuggling offences - Customs Act 1967, s. 135(1)(c) - Appeal against acquittal and discharge - Whether approach taken by magistrate to consider defence case misplaced - Whether magistrate had properly directed herself on law and on facts - Whether appeal allowed - Order of forfeiture of vehicle - Customs Act 1967, s. 127
PP v. Tang Cheng Chai
(Zamani Rahim JC) [2010] 6 CLJ 231 [HC]

LABOUR LAW

Dismissal - Forced resignation - Defendant’s claim in Labour Court for two months’ pay and termination benefits - Jurisdiction - Whether Labour Court seized with jurisdiction to determine claims for wages - Labour Ordinance (Sarawak) (Cap 76), ss. 8A, 12
Sar-Alam Indah Sdn Bhd v. Chua Peng Hee
(Rhodzariah Bujang JC) [2010] 6 CLJ 240 [HC]

LAND LAW

Indefeasibility of title - Registered owner - Second respondent bid and purchased property at auction - Second respondent had immediate indefeasibility - Indefeasibility not affected by National Land Code 1965, s. 340(2), (3), (4)
Malayan Banking Bhd v. Koay Kang Chuwan & Anor
(Abdul Malik Ishak, Jeffrey Tan & Azhar Ma’ah JJCA) [2010] 6 CLJ 172 [CA]

Lien - Lien holder’s caveat - Whether registered proprietor of land may create a lien over his title in favour of third party borrower - National Land Code, s. 281
United Overseas Bank (Malaysia) Sdn Bhd v. UJA Sdn Bhd & Another Appeal
(Gopal Sri Ram FCJ, Ahmad Maarop & Kang Hwee Gee JJCA) [2010] 6 CLJ 204 [CA]

Order for sale - Setting aside - Appeal against - First respondent applied to set aside order for sale - Delay of 12 years, 9 months and 6 days - No explanation for inordinate delay - Whether order for sale contravened National Land Code 1965, s. 257(1)(c) - Total amount due specified in order - Whether failure to serve affidavit containing Rules of the High Court 1980, O. 83 r. 3 particulars nullified order for sale - Whether failure to serve affidavit was an irregularity or nullity - First respondent was served with originating summons, supporting affidavit and notice of appointment to hear the originating summons but failed to attend court - First respondent never filed appeal against the order for sale
Malayan Banking Bhd v. Koay Kang Chuwan & Anor
(Abdul Malik Ishak, Jeffrey Tan & Azhar Ma’ah JJCA) [2010] 6 CLJ 172 [CA]

LEGAL PROFESSION

Solicitor/client - Duty of care and skill - Firm acted as stakeholder - Breach - Damages to client - Whether Firm owed duty to plaintiff
Guthrie Property Development Holding Bhd v. Baharuddin Hj Ali & Ors
(Balia Yusof Wahi J) [2010] 6 CLJ 218 [HC]

PARTNERSHIP

Liabilities of partners - Debts and obligations - Firm acted as stakeholder - Whether every partner of firm liable jointly with co-partners - Fifth, sixth and seventh defendants were not partners of Firm when stakeholder monies received - Whether liable - First, second, third and fourth defendants partners in Firm during relevant period - Whether accountable - Partnership Act 1961, ss. 12, 13, 14
Guthrie Property Development Holding Bhd v. Baharuddin Hj Ali & Ors
(Balia Yusof Wahi J) [2010] 6 CLJ 218 [HC]

STATUTORY INTERPRETATION

Construction of statutes - Literal approach - Whether under s. 30(3) of the Malaysian Anti Corruption Act, a person to whom an order has been given under s. 30(1)(a) can be examined only during office hours - No restriction that the person must be ordered to attend only during office hours - No restriction that the "from day to day" attendance must be within office hours only - Construction to promote purpose of the Act to combat corruption - Power to examine and record statements must be exercised promptly
Datuk Seri Ahmad Said Hamdan & Ors v. Tan Boon Wah
(Hasan Lah, Ahmad Maarop & Syed Ahmad Helmy JJCA) [2010] 6 CLJ 142 [CA]

CASE OF THE WEEK

EDMUND CHAN KAI KHOON v. ABRIZAH ABDULLAH & ORS

COMPANY LAW: Shares - Allotment - Return of allotted shares - Whether compensation must be paid - Holding costs and costs of registration of allotted shares, reimbursement of

CONTRACT: Agreement - Shares - Return of allotted shares - Whether restitution could be ordered without compensation to a person who received benefit under a contractual agreement

CLJ Bulletin
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NUMBER	TITLE	DATE COMING INTO FORCE	PRINCIPAL ACT NO
PU(A) 203/2010	Entertainments Duty (Exemption) (No 8) Order 2010	10 June 2010	ACT 103
PU(A) 204/2010	Control Of Supplies (Exemption) (Amendment) Order 2010	10 June 2010	ACT 122
PU(A) 205/2010	Customs (Values) (Palm Oil) (No 24) Order 2010	10 June 2010	ACT 235
PU(A) 206/2010	Mental Health Regulations 2010	10 June 2010	ACT 615
PU(A) 207/2010	Citizenship Rules (Amendment) 2010	10 June 2010	ACT 000