Legal Network Series

[2009] 1 LNS 1799	CHIN KEAT SENG v. LEE YOKE YAM & ORS	ARBITRATION: Arbitration clause - Existence of - Whether matter should be decided on the new Arbitration Act 2005 - Whether invalidity of Shareholders' Agreement rendered agreement null and void and not arbitrable - Whether arbitration was parties' method of dispute resolution of choice - Whether jurisdiction of an arbitral tribunal ought not to be excluded - Whether arbitral tribunal, when appointed, should rule on its own jurisdiction - Whether matters could still be raised in the arbitration for proper findings of facts to be made on the evidence - Whether arbitration proceedings should proceed and arbitrator appointed
[2009] 1 LNS 1801	LUSAKA HOLDINGS SDN BHD v. CHSB MANAGEMENT SDN BHD	CIVIL PROCEDURE: Appeal - Appeal from sessions court - Appeal to High Court - Whether there had been proper appreciation of applicable principles of law - Whether there was a failure to appreciate totality of the evidence TORT: Rule in Rylands v. Fletcher - Whether rule applicable to facts - Water seepage - Whether ingredients of the rule in Rylands v. Fletcher established - Whether there was escape of any dangerous thing brought onto the premises TORT: Negligence - Res ipsa loquitor - Whether facts supported an application of the res ipsa loquitor rule - Whether facts could be said to speak for themselves
[2009] 1 LNS 1802	NORHAYATI ABD MAJID v. SUASA EFEKTIF (M) SDN BHD & ANOR	ADMINISTRATIVE LAW: Judicial review - Application for - Whether applicant asking court to exercise its judicial review jurisdiction as if it were exercising an appellate power - Whether Industrial Court Chairman took into account all relevant considerations - Whether the decision of the Industrial Court Chairman was correct in law
[2010] 1 LNS 2	H & T INDUSTRIES (JB) SDN BHD v. LEE FOOK HENG	CONTRACT: Construction of terms of contract - Contra proferentum rule - Whether invoices which were not paid, could not be collected or were classified as a bad debt could not be added to net sales - Whether exclusion of invoices would result in ambiguity being construed in plaintiff's favour - Whether would lead to an unfair result adverse to defendant - Whether construction least favourable to plaintiff should be adopted EVIDENCE: Burden of proof - Meaning of - Whether plaintiff proved defendant committed breach of trust as sales and marketing manager and breach of fiduciary duties as director - Whether plaintiff discharged burden of proof of establishing its case and of introducing evidence WORDS AND PHRASES: 'net sales' and 'invoice volume' - Whether to be determined on a true construction of Marketing Scheme - Absence of any specific meaning ascribed to "invoice volume" - Whether "invoice volume" must be interpreted to mean all invoices issued for the period in question
[2012] 1 LNS 35	RAJEANTERAN MARIMUTHU v. MOHD NOR ABDULLAH & ORS	CIVIL PROCEDURE: Striking out - Writ of Summons and Statement of Claim - Whether plaintiff's claim was time barred - Whether defendants had to specifically plead in their defence the relevant statute of limitation - Whether plaintiff's claim for an injunction against 3rd defendant was unsustainable as contrary to the Government Proceedings Act 1956 - Whether this issue should be argued at trial - Whether not a plain and obvious case for striking out CIVIL PROCEDURE: Striking out - Rules of Court O. 18 r. 19 - Failure to specify under what limb of O. 18 r. 19(1) application was made - Use of the word "atau" - Whether applicants had added limbs (a), (b), (c) and (d) cumulatively or pleaded them in the alternative - Whether applicants complied with provisions of O. 18 r. 19(1)

CLJ 2013 Volume 6 (Part 1)

COURT

SC India

Krishan v. State Of Haryana
Swatanter Kumar, Madan B Lokur JJ
(Evidence - Evidence Act 1872 - Section 32(1) - Dying declaration) [2013] 6 CLJ 1 [SC India]

FEDERAL COURT

Bisi Jinggot v. Superintendent Of Lands And Surveys Kuching Division & Ors
Arifin Zakaria CJ, Richard Malanjum CJ (Sabah & Sarawak), Abdull Hamid Embong, Suriyadi Halim Omar, Hasan Lah FCJJ
(Land Law; Native Law And Custom - Customary land - Native Customary Rights (NCRs) - Claim for) [2013] 6 CLJ 21 [FC]

COURT OF APPEAL

Bisi Jinggot v. Superintendent Of Lands And Survey Kuching Division & Ors
Abu Samah Nordin, Hishamudin Mohd Yunus, Azhar Ma'ah JJCA
(Native Law And Custom; Land Law - Land dispute - Native Customary Rights (NCRs)) [2013] 6 CLJ 42 [CA]

Chocosuisse Union Des Fabricants Suisses De Chocolat & Ors v. Maestro Swiss Chocolate Sdn Bhd & Ors
Syed Ahmad Helmy, Zaharah Ibrahim, Balia Yusof Wahi JJCA
(Civil Procedure; Tort; Words & Phrases - Passing off - Goodwill) [2013] 6 CLJ 53 [CA]

Hasni Hassan & Ors v. Menteri Sumber Manusia & Anor
Abdul Wahab Patail, Lim Yee Lan JJCA, Mah Weng Kwai J
(Contract; Labour Law - Employment contract - Breach) [2013] 6 CLJ 74 [CA]

Lee Heng Yau & Yang Lain lwn. Norliza & Ahmad Management Sdn Bhd & Yang Lain
Raus Sharif PMR, Azahar Mohamed, Mohd Zawawi Salleh HHMR
(Bidang Kuasa - Rayuan - Mahkamah Rayuan - Akta Mahkamah Kehakiman 1964, ss. 96(a) & 97) [2013] 6 CLJ 91 [CA]

See Kek Chuan v. PP
Abdul Malik Ishak, Azahar Mohamed, Mohd Zawawi Salleh JJCA
(Criminal Law; Criminal Procedure; Evidence - Dangerous Drugs Act 1952 - Section 39B(1)(a) - Failure of prosecution to tender CCTV recording) [2013] 6 CLJ 98 [CA]

HIGH COURT

PP v. Muhamad Zaid Zainal
Zamani A Rahim J
(Criminal Procedure - Charge - Defective charge) [2013] 6 CLJ 121 [HC]

SUBJECT INDEX

CIVIL PROCEDURE

Parties - Locus standi - Tort of passing off - Dispute as to usage of name 'Maestro Swiss' on chocolate products - Whether led public to believe that products manufactured in Switzerland - Whether first appellant had locus standi to commence suit - Whether members of first appellant shared common interest in protecting designation 'Swiss Chocolates' or words that had Swiss origin - Interested person - Definition of - Geographical Indications Act 2000, ss. 2, 5 & 11 - Whether empowered first appellant to commence action
Chocosuisse Union Des Fabricants Suisses De Chocolat & Ors v. Maestro Swiss Chocolate Sdn Bhd & Ors
(Syed Ahmad Helmy, Zaharah Ibrahim, Balia Yusof Wahi JJCA) [2013] 6 CLJ 53 [CA]

CONTRACT

Employment contract - Breach - Appellants' fixed term contracts not extended by second respondent - Contractual procedures - Whether followed - Questions of facts and law - Whether issues raised to be adjudicated by Industrial Court
Hasni Hassan & Ors v. Menteri Sumber Manusia & Anor
(Abdul Wahab Patail, Lim Yee Lan JJCA, Mah Weng Kwai J) [2013] 6 CLJ 74 [CA]

CRIMINAL LAW

Dangerous Drugs Act 1952 - Section 39B(1)(a) - Conviction and sentence - Appeal against - Prosecution's assertion that accused was found with dangerous drugs while apprehended in hotel lobby - Conflicting testimony of events from witnesses - Whether CCTV footage tendered to support conflicting versions of events - Whether failure to produce material evidence amounts to withholding or suppression of evidence - Adverse inference - Whether rightly invoked against prosecution - Whether High Court judge erred in his decision
See Kek Chuan v. PP
(Abdul Malik Ishak, Azahar Mohamed, Mohd Zawawi Salleh JJCA) [2013] 6 CLJ 98 [CA]

CRIMINAL PROCEDURE

Charge - Defective charge - Offence of attempted criminal trespass - Penal Code, ss. 447 & 511 - Owner of house not disclosed in charge - Mens rea and intent of offence omitted from charge - Improper words or expressions incorporated in charge - Whether charge flawed or bad in law - Whether charge defective - Whether defects curable under s. 422 of Criminal Procedure Code
PP v. Muhamad Zaid Zainal
(Zamani A Rahim J) [2013] 6 CLJ 121 [HC]

Disclosure of information - Documents - Criminal Procedure Code, s. 51A - Non-compliance - Whether s. 422 Criminal Procedure Code could be invoked
See Kek Chuan v. PP
(Abdul Malik Ishak, Azahar Mohamed, Mohd Zawawi Salleh JJCA) [2013] 6 CLJ 98 [CA]

Revision - Sentence - Offence of attempted criminal trespass - Penal Code, ss. 447 & 511 - Maximum imprisonment term imposable for offence might extend to three months - Accused sentenced to seven months imprisonment from date of arrest - Whether sentence in accordance with law
PP v. Muhamad Zaid Zainal
(Zamani A Rahim J) [2013] 6 CLJ 121 [HC]

EVIDENCE

Adverse inference - CCTV recording - Failure of prosecution to tender CCTV recording - Accused charged with trafficking in dangerous drugs - Movements of accused from his car to hotel lobby carrying black bag containing dangerous drugs - Conflicting testimony of events - Whether CCTV footage tendered to support conflicting versions of events - Whether failure to produce material evidence amounts to withholding or suppression of evidence - Whether adverse inference rightly invoked against prosecution
See Kek Chuan v. PP
(Abdul Malik Ishak, Azahar Mohamed, Mohd Zawawi Salleh JJCA) [2013] 6 CLJ 98 [CA]

Criminal Trial - Witnesses - Hostile witness - Evidence of - Testimony of hostile witnesses, reiterated, can be relied upon by prosecution so far as same supports prosecution case - Not sole determinative factor - In present case, testimony of hostile witnesses in fact provided corroboration to an otherwise highly credible dying declaration - Evidence Act, 1872, s. 32(1)
Krishan v. State Of Haryana
(Swatanter Kumar, Madan B Lokur JJ) [2013] 6 CLJ 1 [SC India]

Evidence Act, 1872 - Section 32(1) - Dying declaration - Conviction on sole basis of - Dying declaration, reiterated, can form sole basis of conviction without corroboration when it is voluntary, true, reliable, free from suspicious circumstances and recorded in accordance with established practice and principles
Krishan v. State Of Haryana
(Swatanter Kumar, Madan B Lokur JJ) [2013] 6 CLJ 1 [SC India]

Evidence Act, 1872 - Section 32(1) - Dying declaration - Reliability - Bride burning - Wife set on fire by appellant-accused husband by pouring kerosene oil on her and setting her alight - Deceased sustained 75% burn injuries - Doctor stated both her hands including fingers and thumbs were burnt - As per post-mortem report there were superficial to deep burns all over body except lower parts - But no question put to doctor whether extent of burns was such that deceased's thumb impression could not be taken - Held, it was feasible to take her thumb impression - Conviction confirmed, under s. 302 IPC - Penal Code, 1860, s. 302
Krishan v. State Of Haryana
(Swatanter Kumar, Madan B Lokur JJ) [2013] 6 CLJ 1 [SC India]

LABOUR LAW

Employment - Contract of employment - Appellants' fixed term contracts not extended by second respondent - Legitimate expectation - Failure of Minister to refer matter to Industrial Court - Whether second respondent followed contractual procedures before deciding not to extend appellants' contract - Whether issues raised to be adjudicated by Industrial Court
Hasni Hassan & Ors v. Menteri Sumber Manusia & Anor
(Abdul Wahab Patail, Lim Yee Lan JJCA, Mah Weng Kwai J) [2013] 6 CLJ 74 [CA]

Industrial Court - Representation to Minister - Appellants' fixed term contracts not extended by second respondent - Failure of Minister to refer matter to Industrial Court - Whether Minister exercised discretion correctly - Whether Minister acted in excess of jurisdiction - Whether appellants' contracts contained questions of facts and law which ought to be referred to Industrial Court - Industrial Relations Act 1967, s. 20(3)
Hasni Hassan & Ors v. Menteri Sumber Manusia & Anor
(Abdul Wahab Patail, Lim Yee Lan JJCA, Mah Weng Kwai J) [2013] 6 CLJ 74 [CA]

LAND LAW

Customary land - Native Customary Rights (NCRs) - Claim for - Whether appellant acquired NCRs over parcels of land through sale and purchase agreements - Creation of native customary land - Whether conditional upon adherence to custom or common practice of community - Whether acquisition of NCR by clearance, cultivation and occupation of land or inheritance undertaken by appellant - Whether individual customary rights transferable by sale or otherwise for value - Whether appellant eligible to inherit or acquire through "tungkus asi" procedure - Appellant not native of community - Whether appellant failed to qualify as legitimate recipient from vendors - Sarawak Land Code 1958, s. 5(2)(f)
Bisi Jinggot v. Superintendent Of Lands And Surveys Kuching Division & Ors
(Arifin Zakaria CJ, Richard Malanjum CJ (Sabah & Sarawak), Abdull Hamid Embong, Suriyadi Halim Omar, Hasan Lah FCJJ) [2013] 6 CLJ 21 [FC]

Customary land - Native Customary Rights (NCRs) - Claim for - Whether appellant acquired NCRs over parcels of land - Whether individual customary rights transferable by sale or otherwise for value - Whether customary law allows for sale or transfer of land to another individual outside the community or district - Sumbang ak Sekam v. Engkarong ak Ajah
Bisi Jinggot v. Superintendent Of Lands And Survey Kuching Division & Ors
(Abu Samah Nordin, Hishamudin Mohd Yunus Azhar Ma'ah JJCA) [2013] 6 CLJ 42 [CA]

NATIVE LAW AND CUSTOM

Declaratory order - Application for - Land dispute - Native Customary Rights (NCRs) - Whether appellant acquired NCRs over parcels of land - Whether individual customary rights transferable by sale or otherwise for value - Whether customary law allows for sale or transfer of land to another individual outside the community or district - Sumbang ak Sekam v. Engkarong ak Ajah
Bisi Jinggot v. Superintendent Of Lands And Survey Kuching Division & Ors
(Abu Samah Nordin, Hishamudin Mohd Yunus, Azhar Ma'ah JJCA) [2013] 6 CLJ 42 [CA]

Declaratory order - Application for - Land dispute - Native Customary Rights (NCRs) - Whether appellant acquired NCRs over parcels of land through sale and purchase agreements - Creation of native customary land - Whether conditional upon adherence to custom or common practice of community - Whether acquisition of NCR by clearance, cultivation and occupation of land or inheritance undertaken by appellant - Whether individual customary rights transferable by sale or otherwise for value - Whether appellant eligible to inherit or acquire through "tungkus asi" procedure - Appellant not native of community - Whether appellant failed to qualify as legitimate recipient from vendors - Sarawak Land Code 1958, s. 5(2)(f)
Bisi Jinggot v. Superintendent Of Lands And Surveys Kuching Division & Ors
(Arifin Zakaria CJ, Richard Malanjum CJ (Sabah & Sarawak), Abdull Hamid Embong, Suriyadi Halim Omar, Hasan Lah FCJJ) [2013] 6 CLJ 21 [FC]

Land dispute - Native Customary Rights (NCRs) - Whether appellant acquired NCRs over parcels of land - Whether individual customary rights transferable by sale or otherwise for value - Whether customary law allows for sale or transfer of land to another individual outside the community or district - Sumbang ak Sekam v. Engkarong ak Ajah
Bisi Jinggot v. Superintendent Of Lands And Survey Kuching Division & Ors
(Abu Samah Nordin, Hishamudin Mohd Yunus, Azhar Ma'ah JJCA) [2013] 6 CLJ 42 [CA]

Land dispute - Native Customary Rights (NCRs) - Whether appellant acquired NCRs over parcels of land through sale and purchase agreements - Creation of native customary land - Whether conditional upon adherence to custom or common practice of community - Whether acquisition of NCR by clearance, cultivation and occupation of land or inheritance undertaken by appellant - Whether individual customary rights transferable by sale or otherwise for value - Whether appellant eligible to inherit or acquire through "tungkus asi" procedure - Appellant not native of community - Whether appellant failed to qualify as legitimate recipient from vendors - Sarawak Land Code 1958, s. 5(2)(f)
Bisi Jinggot v. Superintendent Of Lands And Surveys Kuching Division & Ors
(Arifin Zakaria CJ, Richard Malanjum CJ (Sabah & Sarawak), Abdull Hamid Embong, Suriyadi Halim Omar, Hasan Lah FCJJ) [2013] 6 CLJ 21 [FC]

TORT

Passing off - Goodwill - Usage of name 'Maestro Swiss' in relation to chocolate products manufactured in Malaysia - Whether led public to believe that products were manufactured in Switzerland - Goodwill and reputation - Whether affected - Whether likelihood of confusion arose - Conduct of survey - Consideration of - Whether consumer examines details of manufacturer - Extended passing off - Whether committed - Geographical Indications Act 2000, s. 5 - Whether breached
Chocosuisse Union Des Fabricants Suisses De Chocolat & Ors v. Maestro Swiss Chocolate Sdn Bhd & Ors
(Syed Ahmad Helmy, Zaharah Ibrahim, Balia Yusof Wahi JJCA) [2013] 6 CLJ 53 [CA]

WORDS & PHRASES

'Interested person' - Definition of - Geographical Indications Act 2000, ss. 2, 5 & 11
Chocosuisse Union Des Fabricants Suisses De Chocolat & Ors v. Maestro Swiss Chocolate Sdn Bhd & Ors
(Syed Ahmad Helmy, Zaharah Ibrahim, Balia Yusof Wahi JJCA) [2013] 6 CLJ 53 [CA]

INDEKS PERKARA

BIDANG KUASA

Rayuan - Mahkamah Rayuan - Rayuan dari korum pertama Mahkamah Rayuan ke korum kedua Mahkamah Rayuan - Sama ada korum kedua mempunyai bidang kuasa - Sama ada Mahkamah Persekutuan adalah mahkamah tertinggi dan terakhir untuk mendengar rayuan - Akta Mahkamah Kehakiman 1964, ss. 96(a) & 97
Lee Heng Yau & Yang Lain lwn. Norliza & Ahmad Management Sdn Bhd & Yang Lain
(Raus Sharif PMR, Azahar Mohamed, Mohd Zawawi Salleh HHMR) [2013] 6 CLJ 91 [CA]