Legal Network Series

[2009] 1 LNS 1660	CHONG BOON AIK & ANOR v. NG QUO FUNG & ANOR	CIVIL PROCEDURE: Jurisdiction - Court - Accident occurring in Singapore - Defendants residing in Johor Bahru - Whether Johor Bahru Sessions Court had jurisdiction to hear plaintiff's claim CIVIL PROCEDURE: Jurisdiction - Forum conveniens - Running down matter - Parties Malaysians and witnesses also included Malaysians - Whether Singapore court the more appropriate forum
[2009] 1 LNS 1764	KAMARI KASAN v. MALAYSIAN MARITIME ACADEMY SDN BHD	ADMINISTRATIVE LAW: Judicial review - Application for - Certiorari - Industrial Court award - Chairman basing award on claimant's basic salary instead of last-drawn salary - Whether error in quantum resulted in jurisdictional error - Constructive dismissal - Delay of 17 years - Whether delay wholly attributed to respondent - Whether Chairman committed error of law in limiting quantum of back wages to 24 months - Whether Chairman committed jurisdictional error in finding on reinstatement ADMINISTRATIVE LAW: Judicial review - Application for - Certiorari - Industrial Court award - Constructive dismissal - Delay of 17 years - Whether Court could and should assess compensation in judicial review application without having to remit case to Industrial Court
[2009] 1 LNS 1765	LOAGAN BUNUT PLANTATIONS SDN BHD v. HIAP-TAIH WELDING & CONSTRUCTION SDN BHD	ARBITRATION: Award - Setting aside part of award and stay of execution - Application for - High Court Kuching deciding Arbitration Act 1952 applied - Present application brought under Arbitration Act 2005 - Whether misconceived and incompetent in law CIVIL PROCEDURE: Forum conveniens - Whether High Court, Kuala Lumpur or High Court, Kuching the more appropriate court CIVIL PROCEDURE: Res judicata - Issue estoppel - High Court, Kuching deciding Arbitration Act 1952 applied - Whether issue estoppel raised between parties - Whether parties bound by it and precluded from raising same issue before High Court, Kuala Lumpur CIVIL PROCEDURE: Res judicata - Cause of action estoppel - Whether Kuala Lumpur application and Kuching application based on common cause of action
[2011] 1 LNS 446	TUNKU NORELLA SURIANI TUNKU YUSOFF & ORS v. KUMPULAN SIERRAMAS (M) SDN BHD & ANOR	CONTRACT: Breach - Terms - Open burning of offering - Construction of prayer altar in an obtrusive location - Whether 2nd defendant breached Sierramas West Property Development and Construction Guidelines (Guidelines) - Whether 1st defendant failed to take any or any appropriate action in respect of various complaints against 2nd defendant - Whether 1st defendant breached Deeds of Mutual Covenants and/or Guidelines CONTRACT: Exemption clause - Liability for negligence - Duty of care - Whether Deeds of Mutual Covenants expressly excluded liability for acts of negligence by 1st defendant TORT: Nuisance - Private nuisance - Whether 2nd defendant conducted noxious activities on his property, including regular and frequent open burning of offering - If so, whether such practice of open burning was a private nuisance
[2011] LNS 1 449	ESPHERE ENTERPRISE SDN BHD v. TEH LI LI & ORS	COMPANIES AND CORPORATIONS: Shares - Transfer of shares - Propriety of transfers - Whether transfer of plaintiff's shares to 1st and 2nd defendants wrong, unlawful and/or fraudulent - Whether plaintiff proved its claim beyond reasonable doubt COMPANIES AND CORPORATIONS: Shares - Conversion - Ownership of shares - Whether defendants retained beneficial ownership of plaintiff's shares - Whether plaintiff proved its claim for conversion on a balance of probabilities

CLJ 2012 Volume 5 (Part 1)

COURT

[SC INDIA]

Narmada Bai v. State Of Gujarat And Others
P Sathasivam, Dr BS Chauhan JJ
(Constitutional Law; Criminal Procedure) [2012] 5 CLJ 1 [SC India]

COURT OF APPEAL

Quality Concrete Holdings Bhd v. Classic Gypsum Manufacturing Sdn Bhd & Ors
Abdul Malik Ishak, Azhar Ma'ah, Clement Skinner JJCA
(Civil Procedure; Contract - Statement of claim - Amendment - Breach - Agreement - Fraudulent misrepresentation - Existence of) [2012] 5 CLJ 33 [CA]

Robin Van Buerle & Anor v. Le Reve (Malaysia) Sdn Bhd
Zaleha Zahari, Abu Samah Nordin, Hishamudin Mohd Yunus JJCA
(Evidence - Adverse inference - Failure to call witness - Burden of proof - Allegation of particular fact) [2012] 5 CLJ 61 [CA]

HIGH COURT

Chung Chu Yin & Yang Lain lwn. Dr Jimmy Tang Sek Cheong & Satu Lagi
Rosilah Yop PK
(Tort - Kecuaian - Kecuaian perubatan - Kewajipan berjaga-jaga - Penyebab - Liabiliti secara vikarius) [2012] 5 CLJ 86 [HC]

Life Plaza Sdn Bhd v. Pasukhas Construction Sdn Bhd
Amelia Tee Abdullah J
(Arbitration - Stay of proceedings - Stay pending arbitration, application for - Whether agreement contained arbitration clause) [2012] 5 CLJ 120 [HC]

Philomena Mathalamuthu v. Mayglobe Logistics (M) Sdn Bhd
Nallini Pathmanathan J
(Contract; Limitation - Loan - Friendly loan - Oral agreement - Failure to repay - Extension of limitation period) [2012] 5 CLJ 133 [HC]

PP v. Mat Kilau Mohamad
Zamani A Rahim J
(Criminal Law; Evidence - Dangerous Drugs Act 1952 - Trafficking in cannabis - Prima facie evidence - Expert evidence - Admissibility - DNA profiling) [2012] 5 CLJ 147 [HC]

SUBJECT INDEX

ARBITRATION

Stay of proceedings - Stay pending arbitration, application for - Whether agreement contained arbitration clause - Entry of unconditional appearance - Whether amounted to taking positive steps in proceedings and waiving right to refer dispute to arbitration - Filing of defence on express instructions of court - Whether indicative of unequivocal intention to proceed with suit - Albilt Resources Sdn Bhd v. Casaria Construction Sdn Bhd - Sanwell Corporation v. Trans Resources Corporation Sdn Bhd & Anor - Arbitration Act 2005, s. 10
Life Plaza Sdn Bhd v. Pasukhas Construction Sdn Bhd
(Amelia Tee Abdullah J) [2012] 5 CLJ 120 [HC]

CIVIL PROCEDURE

Statement of claim - Amendment - Whether amendments crucial for proper and fair determination of dispute - Whether amendments ambiguous and prejudiced opposite parties - Whether Judicial Commissioner failed to appreciate plaintiff's claim
Quality Concrete Holdings Bhd v. Classic Gypsum Manufacturing Sdn Bhd & Ors
(Abdul Malik Ishak, Azhar Ma'ah, Clement Skinner JJCA) [2012] 5 CLJ 33 [CA]

CONSTITUTIONAL LAW

Constitution of India - Articles 21, 14, 32, 226 and 142 - Fair trial and investigation, Right to - Direction for investigation by an independent agency like CBI - Permissibility - When there is improper investigation by State Police and high State police officials are involved, in order to do complete justice, direction for investigation by an independent and specialised agency like CBI, reiterated, is permissible - Rule of Law - Investigation by impartial agency
Narmada Bai v. State Of Gujarat And Others
(P Sathasivam, Dr BS Chauhan JJ) [2012] 5 CLJ 1 [SC India]

Constitution of India - Articles 21, 14, 32, 226 and 142 - Fair trial and investigation, Right to - Fake encounter - Direction for investigation by an independent agency like CBI after filing of charge-sheet - When can be made - Relevant grounds and considerations - Allegedly T being killed by State Police in a fake encounter as he was a material witness to abduction of one S (associate of T) and K (wife of S), CBI investigation regarding fake encounters of S and K already having being directed in Rubabbuddin Sheikh case, (2010) 2 SCC 200 - Held, to meet ends of justice and in public interest, CBI should be directed to take up the investigation, otherwise it will shake confidence of public - No matter how faithfully and honestly local police may carry out investigation in present case, same will lack credibility as allegations were directed against them - Justice must not only be done but must be seen to be done - If majesty of rule of law is to be upheld and if it is to be ensured that guilty are punished in accordance with law notwithstanding their status and authority which they might have enjoyed, it is desirable to entrust investigation to CBI - There is substantial material on record which makes it probable that prime motive of elimination of T was that he was a witness to abduction of S and K - Both oral and documentary evidence raise strong suspicion that encounter was fake and stage-managed as predicted by T prior to his death in a number of communications - Criminal Procedure Code, 1973, ss. 156, 157, 173(1), (8) and 220
Narmada Bai v. State Of Gujarat And Others
(P Sathasivam, Dr BS Chauhan JJ) [2012] 5 CLJ 1 [SC India]

Constitution of India - Articles 32, 226 and 136 - CBI Investigation - Fake encounter - Connected fake encounter deaths of multiple victims - Observations made in earlier judgment when investigation handed over to CBI in respect of some only of the victims - Respondents in all writ petitions (being the same) adequately represented and heard before earlier judgment passed - Extent to which said earlier judgment binding when remaining writ petition coming up - T allegedly killed by State Police in fake encounter as he was a material witness to abduction of one S and K - Petition for CBI investigation in respect of death of T heard along with petition for CBI investigation into deaths of S and K - Supreme Court in Rubabbuddin case, (2010) 2 SCC 200, directing CBI investigation in respect of death of S and K and making certain observations in respect of death of T and role of T as material witness in killing of S and K, and a larger conspiracy which seemed to exist which is why S, K and T had been eliminated, etc. - Extent to which Rubabbuddin case binding when writ petition in respect of CBI investigation into killing of T coming up independently ie, this petition - In light of the fact that this petition came up for hearing with the other petition and the observations made in Rubabbuddin case, held, observations, directions, factual details, discussions and ultimate conclusions in Rubabbuddin case cannot be taken note of lightly and it is the duty of CBI to go into all details as directed by Supreme Court in Rubabbuddin case - Criminal Procedure Code, 1973, ss. 156 and 157
Narmada Bai v. State Of Gujarat And Others
(P Sathasivam, Dr BS Chauhan JJ) [2012] 5 CLJ 1 [SC India]

Constitution Of India - Articles 32, 21 and 14 - Monitoring of CBI investigation by Supreme Court - Scope - Held, generally, Supreme Court may not require further monitoring of case/investigation - However, parties at liberty to approach Supreme Court as required - Criminal Procedure Code, 1973, ss. 156 and 173
Narmada Bai v. State Of Gujarat And Others
(P Sathasivam, Dr BS Chauhan JJ) [2012] 5 CLJ 1 [SC India]

Constitution Of India - Articles 21, 22 and 32 - Police atrocities/Custodial violence or deaths - Fake encounter/Custodial death - Compensation - CBI having been directed to investigate the case, petitioner permitted to approach trial court for compensation depending on result of investigation - Criminal Procedure Code, 1973, s. 357
Narmada Bai v. State Of Gujarat And Others
(P Sathasivam, Dr BS Chauhan JJ) [2012] 5 CLJ 1 [SC India]

CONTRACT

Breach - Agreement - Failure to make payment - First defendant refused to pay and honour payment arrangement - Whether constituted a breach of contract - Whether agreement a legal, binding and enforceable contract - Whether plaintiff entitled to be paid by first defendant - Whether plaintiff's claim allowed
Quality Concrete Holdings Bhd v. Classic Gypsum Manufacturing Sdn Bhd & Ors
(Abdul Malik Ishak, Azhar Ma'ah, Clement Skinner JJCA) [2012] 5 CLJ 33 [SC India]

Loan - Friendly loan - Oral agreement - Failure to repay - Whether subsistence of loan proved - Whether borrower rebutted existence of loan - Whether lender entitled to interest
Philomena Mathalamuthu v. Mayglobe Logistics (M) Sdn Bhd
(Nallini Pathmanathan J) [2012] 5 CLJ 133 [HC]

Misrepresentation - Fraudulent misrepresentation - Whether there was fraudulent misrepresentation - Whether plaintiff defrauded by third defendant's false assurances
Quality Concrete Holdings Bhd v. Classic Gypsum Manufacturing Sdn Bhd & Ors

(Abdul Malik Ishak, Azhar Ma'ah, Clement Skinner JJCA) [2012] 5 CLJ 33 [CA]

Oral agreement - Existence of - Contemporaneous documents adduced to establish existence of oral agreement - Whether oral agreement contradicted with clauses found in written agreement - Whether oral agreement fell within ambit of s. 92(b) Evidence Act 1950
Quality Concrete Holdings Bhd v. Classic Gypsum Manufacturing Sdn Bhd & Ors
(Abdul Malik Ishak, Azhar Ma'ah, Clement Skinner JJCA) [2012] 5 CLJ 33 [CA]

CRIMINAL LAW

Dangerous Drugs Act 1952 - Section 39B(1)(a) - Trafficking in cannabis - Prima facie evidence - Drugs found in abandoned lorry - No direct evidence to connect accused as driver of lorry - DNA profiling - Whether chemist not DNA expert - Blood stains in lorry matched blood specimen taken from accused - Failure to determine time when blood stains left on vehicle - Whether prima facie case proved - Whether accused to be acquitted and discharged
PP v. Mat Kilau Mohamad
(Zamani A Rahim J) [2012] 5 CLJ 147 [HC]

CRIMINAL PROCEDURE

Criminal Procedure Code, 1973 (India) - Sections 156, 157, 173(1) and (8) - Authority that may investigate - Accused if has any right to hearing in respect thereof - Alleged fake encounter having been committed by State Police persons, the accused police personnel, held, can have no say in the matter of authority that may investigate (paras 64 and 65)
Narmada Bai v. State Of Gujarat And Others
(P Sathasivam, Dr BS Chauhan JJ) [2012] 5 CLJ 1 [SC India]

Criminal Procedure Code, 1973 (India) - Sections 156, 157, 220, 173(1) and (8) - Authority that may investigate - Investigation in respect of more than one offence - CBI having investigated fake encounter of one S and K - Further investigation regarding fake encounter of one T (associate of S and material witness in S's case) - Definite case of CBI being that abduction of S and K and their subsequent murders as well as the murder of T being one series of acts, so connected together as to form the same transaction under s. 220 CrPC - All connected offences, held, should be investigated by same investigating agency (the agency being CBI in present case) - If connected offences are given to different agencies for investigation it may cause failure of justice not only in one case but in other trial as well
Narmada Bai v. State Of Gujarat And Others
(P Sathasivam, Dr BS Chauhan JJ) [2012] 5 CLJ 1 [SC India]

EVIDENCE

Admissibility - Expert evidence - DNA profiling - DNA profiling conducted by chemist - Whether chemist did not have enough experience or training to undertake analysis - Whether chemist not DNA expert - Whether evidence to be rejected
PP v. Mat Kilau Mohamad
(Zamani A Rahim J) [2012] 5 CLJ 147 [HC]

Adverse inference - Failure to call witness - Whether suppression or withholding of evidence shown - Whether s. 114(g) of the Evidence Act 1950 applicable - Evidence Act 1950, s. 114(g)
Robin Van Buerle & Anor v. Le Reve (Malaysia) Sdn Bhd
(Zaleha Zahari, Abu Samah Nordin, Hishamudin Mohd Yunus JJCA) [2012] 5 CLJ 61 [CA]

Burden of proof - Allegation of particular fact - Appellants' sales agency agreement with company terminated for alleged breach of company's rules of conduct - Company issued appellants show-cause letter containing allegations of breach - Whether allegations investigated - Whether company had burden to prove appellants breached rules of conduct - Whether appellants' reply to show cause notice amounted to admission of allegations - Whether termination justified
Robin Van Buerle & Anor v. Le Reve (Malaysia) Sdn Bhd
(Zaleha Zahari, Abu Samah Nordin, Hishamudin Mohd Yunus JJCA) [2012] 5 CLJ 61 [CA]

Expert evidence - DNA analysis - DNA profiling conducted by chemist - Whether chemist did not have enough experience or training to undertake analysis - Failure to give adequate and sufficient evidence - Whether serious infirmity - Whether chemist not DNA expert - Whether evidence to be rejected
PP v. Mat Kilau Mohamad
(Zamani A Rahim J) [2012] 5 CLJ 147 [HC]

LIMITATION

Acknowledgement of debt - Extension of limitation period - Whether letter of acknowledgement confirmed subsistence of debt - Whether limitation period extended - Whether action filed within time
Philomena Mathalamuthu v. Mayglobe Logistics (M) Sdn Bhd
(Nallini Pathmanathan J) [2012] 5 CLJ 133 [HC]

TORT

Kecuaian - Kecuaian perubatan - Kewajipan berjaga-jaga - Plaintif pertama dilahirkan dengan kecacatan berterusan - Sama ada doktor gagal memenuhi standard kewajipan berjaga-jaga - Sama ada kecederaan dibuktikan berlaku semasa plaintif pertama dalam jagaan, pengurusan dan kelolaan doktor
Chung Chu Yin & Yang Lain lwn. Dr Jimmy Tang Sek Cheong & Satu Lagi
(Rosilah Yop PK) [2012] 5 CLJ 86 [HC]

Kecuaian - Kecuaian perubatan - Penyebab - Keterangan melalui saksi pakar - Sama ada keterangan dibantah - Sama ada penyebab dibuktikan atas imbangan kebarangkalian
Chung Chu Yin & Yang Lain lwn. Dr Jimmy Tang Sek Cheong & Satu Lagi
(Rosilah Yop PK) [2012] 5 CLJ 86 [HC]

Kecuaian - Liabiliti secara vikarius - Kecuaian perubatan - Sama ada defendan kedua bertanggungan secara vikarius atas kecuaian oleh defendan pertama - Sama ada liabiliti atas kecuaian dibuktikan
Chung Chu Yin & Yang Lain lwn. Dr Jimmy Tang Sek Cheong & Satu Lagi
(Rosilah Yop PK) [2012] 5 CLJ 86 [HC]

Legal Network Series Articles

2. "JUMP!" "...HOW HIGH?" - ARE EMPLOYEES ALWAYS OBLIGED TO FOLLOW THE WORK ORDERS OR INSTRUCTIONS OF THEIR EMPLOYERS? ^{[Read excerpt]}
    BY: John Wilson [2012] 1 LNS(A) xlvii

1. ORGAN TRANSPLANTATION: LEGAL, ETHICAL AND SHARIAH ISSUES ^{[Read excerpt]}
    BY: Noraiza Abdul Rahman, Hafiza Abdul Razak [2012] 1 LNS(A) xlviii

Principal Acts

Amending Acts

PU(A)

PU(B)