Legal Network Series

[2009] 1 LNS 1761	WONG KIEW THIAM v. PP	CRIMINAL PROCEDURE: Appeal - Appeal against sentence - Cross appeal by Public Prosecutor against inadequacy of sentence - Statutory rape - Sufficiency of sentence passed by court below - Public interest - Unremorseful conduct of accused - Whether sentence imposed by court below appropriate - Whether any error to justify court interfering either by way of appeal or revision
[2010] 1 LNS 484	RAMAN KRP PERUMAL v. CHONG CHI VUI & ORS	LAND LAW: Indefeasibility of title and interests - Transfer - Transfer of ownership of land from donor to 2nd and 3rd defendants - Purported identification card of donor and power of attorney - Whether there was forgery in documents involved in registration of transfer of ownership LAND LAW: Indefeasibility of title and interests - Registered owners - Forged transfer - Whether 2nd and 3rd defendants had knowledge of forgery or were bona fide purchasers for value - Whether 2nd and 3rd defendants' registered title over land indefeasible - National Land Code 1965, s. 340(1)(2)
[2010] 1 LNS 492	MALAYAN BANKING BHD v. TONYIN FAST FOOD SDN BHD & ORS	CONTRACT: Guarantee - Liability of - Whether plaintiff lost the security - Whether 2nd and 3rd defendants as guarantors discharged to the extent of loss of the security EVIDENCE: Documentary evidence - Admissibility of - Statement of accounts - Failure to produce certificate - Whether statement of accounts inadmissible for non-compliance with s. 90A(2) of the Evidence Act 1950 LAND LAW: Assignment - Land assigned to financier - Whether plaintiff failed to obtain a letter of disclaimer from Public Bank Berhad (PBB), master chargee of land - Whether plaintiff obliged to obtain letter of disclaimer from PBB to exclude shop unit from charge LAND LAW: Assignment - Land assigned to financier - Property included in foreclosure proceedings commenced by master chargee of land - Order for sale made - Whether plaintiff lost its security - Whether plaintiff could still exercise its contractual rights under Assignment and Power of Attorney to sell shop unit to realise security
[2011] 1 LNS 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
[2011] LNS 1 455	PP v. TUNG KOK KHENG	CRIMINAL PROCEDURE: Prosecution - prosecution's case - Prima facie case - Whether prosecution established a prima facie case of murder against accused - Criminal Procedure Code, s. 180 EVIDENCE: Identification evidence - Accused identified - Identification made by SP3 in alley - SP3 was drunk throughout the night - Whether SP3's identification evidence of accused satisfactory and reliable EVIDENCE: Identification parade - Conduct of identification parade - Discrepancy in report - Failure to provide a list of where accused was standing vis-a-vis other participants in identification parade - Failure to record particulars of participants' age, height and appearance - Whether identification parade conducted in an unsatisfactory manner EVIDENCE: Identification parade - Failure of witness to identify accused - Both SP3 and SP5 failed to identify accused in one of the identification parades - Whether serious doubt raised regarding identification of accused by SP3 and SP5 in the other identification parade

CLJ 2012 Volume 5 (Part 2)

COURT

COURT OF APPEAL

Chong Chee Chung v. Standard Chartered Bank Malaysia Bhd & Anor
Zainun Ali, Linton Albert, Aziah Ali JJCA
(Land Law - Order for sale - Setting aside - Application for - Caveat - Removal of) [2012] 5 CLJ 161 [CA]

Pioneer Haven Sdn Bhd v. Ho Hup Construction Company Bhd & Anor And Other Appeals
Zainun Ali, Ramly Ali, Zaharah Ibrahim JJCA
(Company Law; Words & Phrases - Directors - Disposal of company property by directors - Approval of shareholders at general meeting not obtained - "disposal" - Companies Act 1965, s. 132C(1)(b)) [2012] 5 CLJ 169 [CA]

Voo Nyuk Fah & Anor v. Lam Yat Kheong & Anor
Sulong Matjeraie, Azhar Ma'ah, Mohamed Apandi Ali JJCA
(Civil Procedure - Damages - Assessment of damages - Appeal against) [2012] 5 CLJ 229 [CA]

HIGH COURT

PP lwn. Dominic Lang
Kamardin Hashim H
(Prosedur Jenayah; Undang-Undang Jenayah - Hukuman - Rayuan terhadap hukuman - Kanun Keseksaan, s. 304 - Homisid salah yang tidak terjumlah kepada kesalahan membunuh) [2012] 5 CLJ 238 [HC]

PP v. Mohamad Sabu
Zamani A Rahim J
(Criminal Law; Criminal Procedure - Penal Code, s. 186 - Obstructing public servant in discharge of public functions - Charge - Framing of) [2012] 5 CLJ 246 [HC]

Siti Shamsiyah Ab Karim & Ors v. Melombong & Perumahan Sdn Bhd & Anor
Nik Hasmat Nik Mohamad JC
(Contract - Agreement - Sale and purchase agreement - Breach - Allegation of - Cause of action - Misrepresentation - Where there was a breach of contractual terms and collateral representation) [2012] 5 CLJ 261 [HC]

SUBJECT INDEX

CIVIL PROCEDURE

Damages - Assessment of damages - Appeal against - Whether trial judge acted on correct principles of law - Whether amount awarded appropriate - Whether assessment consistent with established judicial principles
Voo Nyuk Fah & Anor v. Lam Yat Kheong & Anor
(Sulong Matjeraie, Azhar Ma'ah, Mohamed Apandi Ali JJCA) [2012] 5 CLJ 229 [CA]

COMPANY LAW

Derivative action - Suit against directors - Test to be applied - Whether directors in control of general meeting - Alleged wrongdoers/directors already removed by time suit was commenced - Whether shareholder's derivative action misconceived
Pioneer Haven Sdn Bhd v. Ho Hup Construction Company Bhd & Anor And Other Appeals
(Zainun Ali, Ramly Ali, Zaharah Ibrahim JJCA) [2012] 5 CLJ 169 [CA]

Directors - Disposal of company property by directors - Approval of shareholders at general meeting not obtained - What amounts to 'disposal' - Directors entering into joint venture agreement with developer to develop company's land - Power of attorney given to developer - Whether there was substantive 'disposal' of company's land to developer - Whether beneficial ownership of land vested in developer - Whether majority shareholder has right to sue directors - Companies Act 1965, s. 132C(1)(b), (2) & (3)
Pioneer Haven Sdn Bhd v. Ho Hup Construction Company Bhd & Anor And Other Appeals
(Zainun Ali, Ramly Ali, Zaharah Ibrahim JJCA) [2012] 5 CLJ 169 [CA]

Directors - Fiduciary duties - Test to be applied - Whether a reasonable board of directors similarly circumstanced would have acted similarly - Whether directors acted in best interest of company and shareholders - Whether directors committed company to agreement in bad faith or for improper purpose - Business judgment - Companies Act 1965, ss. 132, 354(1)
Pioneer Haven Sdn Bhd v. Ho Hup Construction Company Bhd & Anor And Other Appeals
(Zainun Ali, Ramly Ali, Zaharah Ibrahim JJCA) [2012] 5 CLJ 169 [CA]

Members' rights - Proper plaintiff rule - Suit by shareholder against company's directors - Allegation that directors disposed of company's land in breach of fiduciary duties or for improper purpose - Whether shareholder the proper plaintiff to sue directors for company's alleged losses
Pioneer Haven Sdn Bhd v. Ho Hup Construction Company Bhd & Anor And Other Appeals
(Zainun Ali, Ramly Ali, Zaharah Ibrahim JJCA) [2012] 5 CLJ 169 [CA]

Members' rights - Rule against reflective loss - Suit by shareholder against company's directors for allegedly damaging value of his shareholding - Whether diminution in value of shareholder's shares merely a 'reflection' of company's loss - Whether shareholder's loss 'franked' by company's loss - Whether loss suffered by shareholder 'personal' and 'independent' - Whether shareholder has cause of action under common law
Pioneer Haven Sdn Bhd v. Ho Hup Construction Company Bhd & Anor And Other Appeals
(Zainun Ali, Ramly Ali, Zaharah Ibrahim JJCA) [2012] 5 CLJ 169 [CA]

CONTRACT

Agreement - Sale and purchase agreement - Breach - Allegation of - Cause of action - Whether there was locus standi - Whether second defendant privy to contract between plaintiff and first defendant - Whether first defendant an agent for second defendant - Whether second defendant liable for representations made by first defendant - Defendants failed to deliver luxury condominiums and did not conform to representation - Whether there was a breach of contractual terms and collateral representation - Whether plaintiffs succeeded in proving claim
Siti Shamsiyah Ab Karim & Ors v. Melombong & Perumahan Sdn Bhd & Anor
(Nik Hasmat Nik Mohamad JC) [2012] 5 CLJ 261 [HC]

Misrepresentation - Sale and purchase agreement - Defendants failed to deliver luxury condominiums and did not conform to representation - Whether there was a breach of contractual terms and collateral representation - Whether second defendant privy to contract between plaintiff and first defendant - Whether second defendant liable for representations made by first defendant
Siti Shamsiyah Ab Karim & Ors v. Melombong & Perumahan Sdn Bhd & Anor
(Nik Hasmat Nik Mohamad JC) [2012] 5 CLJ 261 [HC]

CRIMINAL LAW

Penal Code - Section 186 - Obstructing public servant in discharge of public functions - Ingredients - Proof - Mens rea - Whether mens rea a prerequisite of offence - Whether must be proved - Failure to incorporate words "voluntarily" and "in the discharge of his public functions" in charge - Whether fatal - Whether no offence disclosed
PP v. Mohamad Sabu
(Zamani A Rahim J) [2012] 5 CLJ 246 [HC]

CRIMINAL PROCEDURE

Charge - Framing of - Charge under s. 186, Penal Code - Obstructing public servant in discharge of public functions - Ingredients - Whether importing a requirement of mens rea - Omission to state mens rea - Whether charge substantially defective - Whether defect incurable - Penal Code, s. 186 - Criminal Procedure Code, s. 422
PP v. Mohamad Sabu
(Zamani A Rahim J) [2012] 5 CLJ 246 [HC]

LAND LAW

Caveat - Removal of - Application for - Whether there was valid ground for appellant's lodged caveat to remain
Chong Chee Chung v. Standard Chartered Bank Malaysia Bhd & Anor
(Zainun Ali, Linton Albert, Aziah Ali JJCA) [2012] 5 CLJ 161 [CA]

Order for sale - Setting aside - Application for - Bank sold appellant's loan account to Syarikat Mystic Bay by vesting order - Whether all proceedings in relation to appellant's loan to continue as if Mystic Bay a party in place of bank - Whether appellant had no outstanding debt with bank - Whether appellant liable to settle debt - Whether there was no basis for order for sale to be set aside - Banking and Financial Institutions Act 1989, s. 50(3)
Chong Chee Chung v. Standard Chartered Bank Malaysia Bhd & Anor
(Zainun Ali, Linton Albert, Aziah Ali JJCA) [2012] 5 CLJ 161 [CA]

WORDS & PHRASES

"disposal" - Companies Act 1965, s. 132C(1)(b) - What amounts to "disposal of a substantial portion of the company's undertaking or property" - Whether legal and beneficial ownership of property must pass - Directors entering into joint venture agreement with developer to develop company's land and executing power of attorney in favour of developer - Whether amounts to substantive 'disposal' of land
Pioneer Haven Sdn Bhd v. Ho Hup Construction Company Bhd & Anor And Other Appeals
(Zainun Ali, Ramly Ali, Zaharah Ibrahim JJCA) [2012] 5 CLJ 169 [CA]

"from entering into a transaction" - Companies Act 1965, s. 132C(2) - Power of court to restrain company directors 'from entering into a transaction' in contravention of s. 132C(1) - Transaction or agreement already 'executed' - Whether pre-emptory power in s. 132C(2) still exercisable
Pioneer Haven Sdn Bhd v. Ho Hup Construction Company Bhd & Anor And Other Appeals
(Zainun Ali, Ramly Ali, Zaharah Ibrahim JJCA) [2012] 5 CLJ 169 [CA]

"shall not carry into effect any arrangement or transaction" - Companies Act 1965, s. 132C(1) - Comparison with prior version "shall not carry into effect any proposal or execute any transaction" - Whether amendment means directors can now 'enter' into agreements without shareholders' approval but merely cannot 'implement' them
Pioneer Haven Sdn Bhd v. Ho Hup Construction Company Bhd & Anor And Other Appeals
(Zainun Ali, Ramly Ali, Zaharah Ibrahim JJCA) [2012] 5 CLJ 169 [CA]

INDEKS PERKARA

PROSEDUR JENAYAH

Pertuduhan - Pertuduhan alternatif - Tertuduh mengaku bersalah - Sama ada tertuduh patut diberikan diskaun pertuduhan atas akuan bersalah - Budibicara mahkamah - Faktor-faktor yang diambilkira dalam penghukuman
PP lwn. Dominic Lang
(Kamardin Hashim H) [2012] 5 CLJ 238 [HC]

UNDANG-UNDANG JENAYAH

Hukuman - Rayuan terhadap hukuman - Kanun Keseksaan, s. 304 - Homisid salah yang tidak terjumlah kepada kesalahan membunuh - Tertuduh mengaku bersalah - Sama ada hukuman sejajar dengan kesalahan
PP lwn. Dominic Lang
(Kamardin Hashim H) [2012] 5 CLJ 238 [HC]

Legal Network Series Articles

1. SHOWING CAUSE TO RETAIN YOUR PRACTISING CERTIFICATE
Guidelines for compliance with the show-cause provisions of the Legal Profession Act 2006 ^{[Read excerpt]}
    BY: ROB REIS [2012] 1 LNS(A) xlix

2. KONSEP CAP DAGANGAN & PRINSIP MUA’MALAT ISLAM: SUATU PERBANDINGAN ^{[Read excerpt]}
    BY: NAZIREE BIN MD YUSOF [2012] 1 LNS(A) l

Principal Acts

Amending Acts

PU(A)

PU(B)