Bulletin_33

CLJ Bulletin, Issue 2011, Vol 33

26 August 2011

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 4) 2011

1. Legislation Highlights

Principal Acts

NUMBER
TITLE

DATE COMING INTO FORCE

REPEALING

ACT 723 Price Control And Anti-Profiteering Act 2011 1 April 2011 [PU(B) 146/2011] - Nil -

ACT 724 National Visual Arts Development Board Act 2011 Not Yet In Force - Nil -

ACT 725 Renewable Energy Act 2011 Not Yet In Force - Nil -

ACT 726 Sustainable Energy Development Authority Act 2011 Not Yet In Force - Nil -

ACT 727 Food Analysts Act 2011 Not Yet In Force - Nil -

Amending Acts

NUMBER
TITLE

DATE COMING INTO FORCE

PRINCIPAL / AMENDING ACT NO

ACT A1393 Merchant Shipping (Amendment And Extension) Act 2011 Not Yet In force ORD 70/1952

ACT A1394 Merchant Shipping (Oil Pollution) (Amendment) Act 2011 Not Yet In force ACT 515

ACT A1395 Arbitration (Amendment) Act 2011 1 July 2011 [PU(B) 342/2011] ACT 646

ACT A1396 Supplementary Supply (2011) Act 2011 22 July 2011 ACT A1388

ACT A1397 Kootu Funds (Prohibition) (Amendment) Act 2011 16 August 2011 [PU(B) 458/2011] ACT 28

PU(A)

NUMBER TITLE DATE COMING INTO FORCE
PRINCIPAL ACT NO

PU(A) 274/2011 Atomic Energy Licensing (Radioactive Waste Management) Regulations 2011 16 August 2011 ACT 304

PU(A) 275/2011 Fees (Federal Public Officers Salary Deduction Facility) Order 2011 17 August 2011 ACT 209

PU(A) 276/2011 Land Public Transport (Compounding Of Offences) Regulations 2011 17 August 2011 ACT 715

PU(A) 277/2011 National Heritage (Declaration Of National Heritage) (Heritage Site) (No 2) Order 2011 18 August 2011 ACT 645

PU(A) 278/2011 Johor Port Authority (Scale Of Charges) (Amendment) By-Laws 2011 18 August 2011 ACT 488

PU(B)

NUMBER TITLE DATE COMING INTO FORCE
PRINCIPAL ACT NO

PU(B) 456/2011 Notice Regarding The Supplementary Electoral Roll For The First Quarter Of The Year 2011 That Has Been Certified 15 August 2011 ACT 19

PU(B) 457/2011 Notice Regarding The Supplementary Electoral Roll For The Second Quarter Of The Year 2011 That Has Been Certified 16 August 2011 ACT 19

PU(B) 458/2011 Appointment Of Date Of Coming Into Operation 16 August 2011 ACT A1397

PU(B) 459/2011 Special Direction Of The Minister 17 August 2011 ACT 621

PU(B) 460/2011 Appointment Of Members Of The Commission 17 August 2011 ACT 695

2. Articles

a) Legal Network Series Articles

1. Costs, Management, Proportionality And Insurance Personal Injuries Bar Association Conference, Oxford ^{[Read
excerpt]}
By Lord Neuberger Of Abbotsbury, Master Of The Rolls*

2. Tribunal Tuntutan Pembeli Rumah: Satu Mekasnisme Penyelesaian Pertikaian Alternatif Dan Perbandingannya Dengan Islam* ^{[Read excerpt]}
By Rahmah Ismail, Ruzian Markom**

3. Latest Cases

a) Legal Network Series

CITATION TITLE SUBJECT

[2009] 1 LNS 741 [HC] PP v. Tan Sri Kasitah Gaddam

CRIMINAL LAW: Emergency (Essential Powers) Ordinance No. 22 of 1970 - s. 2(1) - Corrupt practice - Accused was chairman of Sabah Land Development Board (SLDB) - Whether accused was a public officer within definition of the Prevention of Corruption Act 1961 and for purpose of a charge of corrupt practice under Emergency (Essential Powers) Ordinance No. 22 of 1970 - Allegation that accused was promised 3.36 million of Sapi shares in exchange for accused approving sale of Sapi shares to Briskmark Enterprise Sdn Bhd - Whether prosecution proved that accused obtained a pecuniary advantage - Whether prosecution made out a prima facie case against accused in respect of 1^st charge

CRIMINAL LAW: Penal Code - s. 417 - Cheating - Allegation that accused dishonestly concealed PPB Oil Palms Sdn Bhd's (PPB) 5:1 offer during SLDB's meeting and that directors of SLDB were unaware of offer - Whether members of board of SLDB knew of 5:1 offer by PPB - Whether prosecution proved that accused used his position as chairman to influence board members to approve sale of 40% of SLDB's shares in Sapi to Briskmark - Whether prosecution made out a prima facie case against accused in respect of 2^nd charge

[2009] 1 LNS 756 [HC] Yii Ping Hiong & Anor v. Tseng Choon Chin @ Tay Bak Hui & Ors

DAMAGES: Assessment - Appeal - Objection to award on rates of assessment, surcharge and lodgement of caveat by relevant authority - Allegation that rates payable by respondents as beneficial owners - Respondents evicted and appellants taking possession of property but failing to make payments - Whether respondents entitled to compensation for payments made

DAMAGES: Assessment - Appeal - Expenses incurred to restore property and arising from eviction - Whether appellants liable to compensate respondents for these expenses

DAMAGES: Assessment - Appeal - Expenses incurred by respondents by virtue of execution proceedings - Objection by appellants based on Rules of the High Court 1980, O. 59 r. 3 - Registrar's award on legal fees in accordance with court order - Whether falling within exception in Order 59 r. 3 - Whether appellants' objections devoid of merit

[2009] 1 LNS 1082 [HC] Jaya Plus Baku Sdn Bhd v. Chip Heng Development (M) Sdn Bhd

CONTRACT: Sale and purchase of land - Breach - Failure to disclose existence of Writ Action - Whether material to a bona fide purchaser and ought to have been promptly disclosed to plaintiff - Whether defendant in breach - Failure to give a good title of properties and vacant possession to plaintiff - Whether defendant unable to give good title to plaintiff - Whether defendant failed to hand over vacant possession of properties to plaintiff

CONTRACT: Time - Time of the essence - Whether parties intended that time should be of the essence of the sale and purchase agreement - If so, whether waived by the parties' subsequent conduct and negotiations

CONTRACT: Sale and purchase of land - Breach - Liquidated damages - Whether clause should be struck down as a penalty - Whether agreed liquidated damages in clause exorbitant, extravagant, excessive or unconscionable in relation to the loss likely to be suffered by plaintiff - Whether plaintiff entitled to receive 10% of the purchase price as agreed liquidated damages

[2009] 1 LNS 1086 [HC] Chai Ko Kuan & Ors v. Rosli Ahmad & Ors
CIVIL PROCEDURE: Injunction - Application for - Restraint on defendants taking over possession of land occupied by plaintiffs - Defendants registered owners of the land - Whether an injunction could lie against a registered owner to prevent them from taking possession of land - No claim by plaintiff for possession of land - Whether any subject matter to preserve - Whether damages an adequate remedy

[2010] 1 LNS 96 [HC] PB Securities Sdn Bhd v. Raja Abd Rahman Raja Mansor

SECURITIES: Dealer's representative - Liability to stock-broking firm - Indemnity - Losses in trading account of client under margin facility agreement - Whether dealer's representative signed service undertaking and contract for service - Whether dealer's representative signed letters of indemnity with knowledge - Blank form - Whether there was fraud or misrepresentation on part of stock-broking firm - Whether dealing agent merely trading under instructions of superior

CITATION	TITLE	SUBJECT
[2009] 1 LNS 741 [HC]	PP v. Tan Sri Kasitah Gaddam	CRIMINAL LAW: Emergency (Essential Powers) Ordinance No. 22 of 1970 - s. 2(1) - Corrupt practice - Accused was chairman of Sabah Land Development Board (SLDB) - Whether accused was a public officer within definition of the Prevention of Corruption Act 1961 and for purpose of a charge of corrupt practice under Emergency (Essential Powers) Ordinance No. 22 of 1970 - Allegation that accused was promised 3.36 million of Sapi shares in exchange for accused approving sale of Sapi shares to Briskmark Enterprise Sdn Bhd - Whether prosecution proved that accused obtained a pecuniary advantage - Whether prosecution made out a prima facie case against accused in respect of 1^st charge CRIMINAL LAW: Penal Code - s. 417 - Cheating - Allegation that accused dishonestly concealed PPB Oil Palms Sdn Bhd's (PPB) 5:1 offer during SLDB's meeting and that directors of SLDB were unaware of offer - Whether members of board of SLDB knew of 5:1 offer by PPB - Whether prosecution proved that accused used his position as chairman to influence board members to approve sale of 40% of SLDB's shares in Sapi to Briskmark - Whether prosecution made out a prima facie case against accused in respect of 2^nd charge
[2009] 1 LNS 756 [HC]	Yii Ping Hiong & Anor v. Tseng Choon Chin @ Tay Bak Hui & Ors	DAMAGES: Assessment - Appeal - Objection to award on rates of assessment, surcharge and lodgement of caveat by relevant authority - Allegation that rates payable by respondents as beneficial owners - Respondents evicted and appellants taking possession of property but failing to make payments - Whether respondents entitled to compensation for payments made DAMAGES: Assessment - Appeal - Expenses incurred to restore property and arising from eviction - Whether appellants liable to compensate respondents for these expenses DAMAGES: Assessment - Appeal - Expenses incurred by respondents by virtue of execution proceedings - Objection by appellants based on Rules of the High Court 1980, O. 59 r. 3 - Registrar's award on legal fees in accordance with court order - Whether falling within exception in Order 59 r. 3 - Whether appellants' objections devoid of merit
[2009] 1 LNS 1082 [HC]	Jaya Plus Baku Sdn Bhd v. Chip Heng Development (M) Sdn Bhd	CONTRACT: Sale and purchase of land - Breach - Failure to disclose existence of Writ Action - Whether material to a bona fide purchaser and ought to have been promptly disclosed to plaintiff - Whether defendant in breach - Failure to give a good title of properties and vacant possession to plaintiff - Whether defendant unable to give good title to plaintiff - Whether defendant failed to hand over vacant possession of properties to plaintiff CONTRACT: Time - Time of the essence - Whether parties intended that time should be of the essence of the sale and purchase agreement - If so, whether waived by the parties' subsequent conduct and negotiations CONTRACT: Sale and purchase of land - Breach - Liquidated damages - Whether clause should be struck down as a penalty - Whether agreed liquidated damages in clause exorbitant, extravagant, excessive or unconscionable in relation to the loss likely to be suffered by plaintiff - Whether plaintiff entitled to receive 10% of the purchase price as agreed liquidated damages
[2009] 1 LNS 1086 [HC]	Chai Ko Kuan & Ors v. Rosli Ahmad & Ors	CIVIL PROCEDURE: Injunction - Application for - Restraint on defendants taking over possession of land occupied by plaintiffs - Defendants registered owners of the land - Whether an injunction could lie against a registered owner to prevent them from taking possession of land - No claim by plaintiff for possession of land - Whether any subject matter to preserve - Whether damages an adequate remedy
[2010] 1 LNS 96 [HC]	PB Securities Sdn Bhd v. Raja Abd Rahman Raja Mansor	SECURITIES: Dealer's representative - Liability to stock-broking firm - Indemnity - Losses in trading account of client under margin facility agreement - Whether dealer's representative signed service undertaking and contract for service - Whether dealer's representative signed letters of indemnity with knowledge - Blank form - Whether there was fraud or misrepresentation on part of stock-broking firm - Whether dealing agent merely trading under instructions of superior

a. CLJ Volume 6 (Part 4) 2011

COURT

FEDERAL COURT

Mamasobri Useng v. PP
Alauddin Mohd Sheriff PCA, Hashim Yusoff, Heliliah Mohd Yusof FCJJ
(Criminal Law; Criminal Procedure - Dangerous Drugs Act 1952 - Section 39B(1)(a) - Trafficking - Appeal against conviction and sentence) [2011] 6 CLJ 377 [FC]

COURT OF APPEAL

Bato Bagi & Ors v. Government Of The State Of Sarawak
Zainun Ali, Sulaiman Daud, Syed Ahmad Helmy JJCA
(Civil Procedure - Action - Whether questions of law suitable for determination under O. 14A Rules of the High Court 1980). [2011] 6 CLJ 387 [CA]

Joseph Paulus Lantip v. Lian Kee Chu & Ors
Low Hop Bing, Abdul Wahab Patail JJCA, David Wong Dak Wah J
(Native Law And Custom - Land dispute - Dealings of native titles) [2011] 6 CLJ 399 [CA]

Shell Malaysia Trading Sdn Bhd v. Collector Of Stamp Duty, Penang
Tengku Baharudin Shah, Zainun Ali, Hishamudin Mohd Yunus JJCA
(Revenue Law - Stamp duty - Assessment - Appeal against) [2011] 6 CLJ 407 [CA]

HIGH COURT

Dato' Dr Abd Isa Ismail v. Dato' Abu Hasan Sarif & Anor
Alizatul Khair Osman J
(Administrative Law; Constitutional Law; Election Law; Words And Phrases - Legislature - State Assembly - Prorogation of state assembly - Election commission - Powers) [2011] 6 CLJ 415 [HC]

Lembaga Kumpulan Wang Simpanan Pekerja v. Carimonde Sdn Bhd & Ors
Varghese George JC
(Civil Procedure; Limitation; Statutory Interpretation - Pleadings - Public authorities - Employee Provident Fund Board - Claim for unremitted contributions - Aids to construction - Non obstante clause) [2011] 6 CLJ 451 [HC]

Uni Wall Architectural Products & Services Sdn Bhd v. Global Upline Sdn Bhd
Lee Swee Seng JC
(Civil Procedure - Summary judgment - Application for - Triable issues) [2011] 6 CLJ 467 [HC]

Uni Wall Architectural Products & Services Sdn Bhd v. Global Upline Sdn Bhd (No 2)
Lee Swee Seng JC
(Civil Procedure - Judgments and orders - Ex parte order - Application for extension of time) [2011] 6 CLJ 477 [HC]

SUBJECT INDEX

ADMINISTRATIVE LAW

Judicial review - Remedies - Writ of quo warranto - Whether available as legal remedy - Principles to be applied - Whether available against members of State Legislative Assembly
Dato' Dr Abd Isa Ismail v. Dato' Abu Hasan Sarif & Anor
(Alizatul Khair Osman J) [2011] 6 CLJ 415 [HC]

CIVIL PROCEDURE

Action - Disposal of action without trial - Appeal against - Whether questions of law suitable for determination under O. 14A Rules of the High Court 1980 - Whether plaintiffs afforded opportunity to be heard - Whether learned judge acted contrary to O. 14A r. 1(3) Rules of the High Court 1980
Bato Bagi & Ors v. Government Of The State Of Sarawak
(Zainun Ali, Sulaiman Daud, Syed Ahmad Helmy JJCA) [2011] 6 CLJ 387 [CA]

Judgments and orders - Ex parte order - Application for extension of time - Whether could be made by ex parte summons - Whether there are provisions which allows applications for extension of time - Whether grant of ex parte extension of time would prejudice plaintiff - Whether there were sufficient reasons for delay - Whether order irregularly obtained and lacked merits - Whether order a nullity
Uni Wall Architectural Products & Services Sdn Bhd v. Global Upline Sdn Bhd (No 2)
(Lee Swee Seng JC) [2011] 6 CLJ 477 [HC]

Judgments and orders - Ex parte order - Setting aside writ and stay of proceedings - Whether there were reasons to justify stay of proceedings - Rules of the High Court 1980, O. 12 r. 6 - Whether applicable - Whether order irregularly obtained and lacked merits - Whether order a nullity
Uni Wall Architectural Products & Services Sdn Bhd v. Global Upline Sdn Bhd (No 2)
(Lee Swee Seng JC) [2011] 6 CLJ 477 [HC]

Pleadings - Unpleaded issues - Failure to plead limitation - Whether defendants prevented from relying on defence of limitation - Whether plaintiff had notice of defence of limitation - Whether defendants could have amended defence to include issue of limitation - Whether inordinate delay in raising objection on defendants' failure to plead limitation
Lembaga Kumpulan Wang Simpanan Pekerja v. Carimonde Sdn Bhd & Ors
(Varghese George JC)[2011] 6 CLJ 451 [HC]

Summary judgment - Application for - Triable issues - Whether arose - Whether there was total failure of consideration - Whether issues raised by defendant had merits - Whether application should be allowed
Uni Wall Architectural Products & Services Sdn Bhd v. Global Upline Sdn Bhd
(Lee Swee Seng JC) [2011] 6 CLJ 467 [HC]

CONSTITUTIONAL LAW

Legislature - State Assembly - Declaration of vacancy of seat - Assemblyman absent from two consecutive state assembly meetings in the same session - Discretion of Speaker whether to declare seat as vacant - Whether Speaker must refer matter to Standing Committee on Rights and Privileges - Constitution of the State of Kedah, art. 51
Dato' Dr Abd Isa Ismail v. Dato' Abu Hasan Sarif & Anor
(Alizatul Khair Osman J) [2011] 6 CLJ 415 [HC]

Legislature - State Assembly - Membership - Assemblyman absent from two consecutive state assembly meetings in the same session - Discretion of Speaker whether to accept reason given for absence - Whether Speaker must refer matter to Standing Committee on Rights and Privileges - Constitution of the State of Kedah, art. 51
Dato' Dr Abd Isa Ismail v. Dato' Abu Hasan Sarif & Anor
(Alizatul Khair Osman J) [2011] 6 CLJ 415 [HC]

Legislature - State Assembly - Prorogation of state assembly - Discretion of Sultan to prorogue state assembly - No proclamation issued to prorogue Assembly - Whether state assembly session prorogued - Whether next meeting of state assembly was part of same session - Constitution of the State of Kedah, art. 51
Dato' Dr Abd Isa Ismail v. Dato' Abu Hasan Sarif & Anor
(Alizatul Khair Osman J) [2011] 6 CLJ 415 [HC]

CRIMINAL LAW

Dangerous Drugs Act 1952 - Section 39B(1)(a) - Trafficking in cannabis - Conviction and sentence - Appeal against - Whether there was error or misdirection by trial judge - Whether there was miscarriage of justice - Whether there was reason to interfere with findings of trial judge - Whether courts acted contrary to settled principles of justice
Mamasobri Useng v. PP
(Alauddin Mohd Sheriff PCA, Hashim Yusoff, Heliliah Mohd Yusof FCJJ) [2011] 6 CLJ 377 [FC]

CRIMINAL PROCEDURE

Appeal - Appellate court, power and duty of - Misdirection by trial court - Whether miscarriage of justice occasioned - Courts of Judicature Act 1964, s. 60(1) - Applicability of
Mamasobri Useng v. PP
(Alauddin Mohd Sheriff PCA, Hashim Yusoff, Heliliah Mohd Yusof FCJJ) [2011] 6 CLJ 377 [FC]

ELECTION LAW

Election Commission - Powers - State Assemblyman absent from two consecutive state assembly meetings in the same session - Speaker refusing to accept reason given for absence - Speaker declaring seat vacant - Whether Election Commission could refuse to recognize seat as vacant - Whether Election Commission could require matter to be referred to Standing Committee on Rights and Privileges
Dato' Dr Abd Isa Ismail v. Dato' Abu Hasan Sarif & Anor
(Alizatul Khair Osman J) [2011] 6 CLJ 415 [HC]

LIMITATION

Public authorities - Employee Provident Fund Board (EPF) - Claim for unremitted contributions against company and directors - Whether claim time barred under Limitation Act 1953 - Whether provisions of Limitation Act 1953 ousted by provisions of non obstante clause in Employees Provident Fund Act 1991, ss. 46(1), 65(1)
Lembaga Kumpulan Wang Simpanan Pekerja v. Carimonde Sdn Bhd & Ors
(Varghese George JC) [2011] 6 CLJ 451 [HC]

NATIVE LAW AND CUSTOM

Land dispute - Dealings of native titles - First defendant's status as a native established by a certificate obtained from Sabah Native Court - Whether there was no challenge to validity of certificate - Whether dealings in contravention of ss. 17(1) and 64(1) Sabah Land Ordinance
Joseph Paulus Lantip v. Lian Kee Chu & Ors
(Low Hop Bing, Abdul Wahab Patail JJCA, David Wong Dak Wah J) [2011] 6 CLJ 399 [CA]

REVENUE LAW

Stamp duty - Assessment - Appeal against - Preliminary issue raised - Stamp duty imposed on appellant less than RM250,000 - Whether prior leave of Court of Appeal required - Courts of Judicature Act 1964, s. 68(1)(a)
Shell Malaysia Trading Sdn Bhd v. Collector Of Stamp Duty, Penang
(Tengku Baharudin Shah, Zainun Ali, Hishamudin Mohd Yunus JJCA) [2011] 6 CLJ 407 [CA]

STATUTORY INTERPRETATION

Aids to construction - Non obstante clause - Whether non obstante clause to be construed as automatically displacing or overriding all other legal provisions - Determining objective and scope of non obstante clause
Lembaga Kumpulan Wang Simpanan Pekerja v. Carimonde Sdn Bhd & Ors
(Varghese George JC) [2011] 6 CLJ 451 [HC]

WORDS AND PHRASES

Meaning of phrase "two consecutive meetings" - Constitution of the State of Kedah, art. 51
Dato' Dr Abd Isa Ismail v. Dato' Abu Hasan Sarif & Anor
(Alizatul Khair Osman J) [2011] 6 CLJ 415 [HC]

CASE OF THE WEEK

PP lwn. ABDUL AZIZ ABDULLAH

PROSEDUR JENAYAH: Perlucuthakkan - Permohonan - Isu awalan - Sama ada permohonan difailkan di luar masa - Sama ada permohonan perlucuthakkan harta dikira dari kedua-dua tarikh penyitaan dan pembekuan atau dari satu tarikh sahaja - Akta Pencegahan Pengubahan Wang Haram dan Pencegahan Pembiayaan Keganasan 2001, s. 56(1)

PERKATAAN & FRASA: Akta Pencegahan Pengubahan Wang Haram dan Pencegahan Pembiayaan Keganasan 2001, s. 56(1) - Teks Bahasa Malaysia 'dari tarikh pembekuan atau penyitaan' - Teks Bahasa Inggeris 'from the date of the freeze or seizure' - Sama ada pentafsiran teks Bahasa Inggeris lebih logik dan tepat

CLJ Bulletin
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NUMBER	TITLE	DATE COMING INTO FORCE	REPEALING
ACT 723	Price Control And Anti-Profiteering Act 2011	1 April 2011 [PU(B) 146/2011]	- Nil -
ACT 724	National Visual Arts Development Board Act 2011	Not Yet In Force	- Nil -
ACT 725	Renewable Energy Act 2011	Not Yet In Force	- Nil -
ACT 726	Sustainable Energy Development Authority Act 2011	Not Yet In Force	- Nil -
ACT 727	Food Analysts Act 2011	Not Yet In Force	- Nil -