CLJ Bulletin, Issue 2013, Vol 35 30 August 2013 Print this page |
N INDRA NALLATHAMBY v. DATUK SERI KHALID ABU BAKAR & ORS
HIGH COURT MALAYA, KUALA LUMPUR
VT SINGHAM J
[CIVIL SUIT NO: 21NCVC-7-01-2012]
26 JUNE 2013
POLICE: Arrest - False imprisonment - Deceased detained for investigation for theft of motorcar pursuant to remand warrant granted by Magistrate - Deceased beaten to death by policemen whilst in detention - Remand warrant abused - Whether detention unlawful resulting in false imprisonment - Whether cause of action for false imprisonment against police established - Whether s. 32(1) Police Act 1967 applicable
POLICE: Duties - Statutory duty - Breach of - Remand prisoner beaten to death by policemen whilst in detention - Systematic ill-treatment, torture and grievous injuries inflicted on deceased - Whether defendants liable for deceased's death
TORT: Damages - Aggravated damages - Liability against police - Remand prisoner beaten to death by policemen whilst in detention - Systematic ill-treatment, torture and grievous injuries inflicted on deceased - Whether aggravated damages awarded
TORT: Damages - Exemplary damages - Liability against police - Remand prisoner beaten to death by policemen whilst in detention - Systematic ill-treatment, torture and grievous injuries inflicted on deceased - Whether exemplary damages awarded - Rookes v. Barnard
TORT: False imprisonment - Allegation against police - Deceased detained for investigation for theft of motorcar pursuant to remand warrant granted by Magistrate - Deceased beaten to death by policemen whilst in detention - Remand warrant abused - Whether detention unlawful resulting in false imprisonment - Whether cause of action for false imprisonment against police established - Whether s. 32(1) Police Act 1967 applicable
TORT: Misfeasance - Misfeasance in public office - Police officer - Remand prisoner beaten to death by policemen whilst in detention - Systematic ill-treatment, torture and grievous injuries inflicted on deceased - Attempted cover-up - No disciplinary action taken against offending policemen - False entries made in station diary - Whether tort of misfeasance established against superior officers
TORT: Vicarious liability - Police - Remand prisoner beaten to death by policemen whilst in detention - Elements of vicarious liability - Systematic ill-treatment, torture and grievous injuries inflicted on deceased - Tortfeasor named as co-defendant - Whether policemen engaged on frolic of their own - Failure to properly monitor interrogation of deceased - Whether there was breach of statutory duty and misfeasance - Whether vicarious liability established - Government Proceedings Act 1956, ss. 5 & 6
TIRAI KRISTAL SDN BHD lwn. PENGARAH TANAH DAN GALIAN WILAYAH PERSEKUTUAN KUALA LUMPUR
MAHKAMAH TINGGI MALAYA, KUALA LUMPUR
SITI KHADIJAH S HASSAN BADJENID PK
[GUAMAN NO: S-21-210-2008]
2 JANUARI 2013
UNDANG-UNDANG TANAH: Pembelian tanah - Catatan carian persendirian - Maklumat tidak tepat - Kewajipan untuk berhati-hati - Sama ada defendan cuai dan abai dalam tanggungjawabnya - Sama ada defendan bertanggungjawab atas kerugian yang dialami oleh plaintif - Sama ada plaintif layak menuntut pampasan - Kanun Tanah Negara, ss. 384 & 386
BADAN PENGURUSAN BERSAMA KONDOMINIUM AMBER COURT lwn. LEE AH LEK [2013] 1 SMC 224
MAHKAMAH MAJISTRET, BENTONG
NURLIANA ISMAIL MJ
[SAMAN NO: 72-103-09-2011]
26 NOVEMBER 2012
HARTANAH: Badan pengurusan bersama - Caj perkhidmatan penyelenggaraan - Tunggakan bayaran caj perkhidmatan - Kuasa mengutip caj penyelenggaraan - Sama ada badan pengurusan telah mengambil alih pengurusan harta bersama daripada pemaju - Sama ada tunggakan terakru sebelum badan pengurusan mengambil alih - Sama ada penyelenggaraan dijalankan dengan sempurna - Penyampaian notis tuntutan - Sama ada sempurna
JUDICIAL QUOTES
NORAINI MAT ZAINOL v. PP [2012] 8 CLJ 846
[5] Issue: Whether the Magistrate could reject the evidence of an expert (Forensic Psychiatrist Consultant – DW2) that the accused in a kidnapping case was suffering from a mental illness and was unaware of her action at the time of committing the offence on the ground that the behaviour of the accused indicated that she was of sound mind at the time of the offence, where there was no rebuttal evidence to the expert’s evidence and opinion.
“In this case, the state of mental capacity of the appellant at the time of the offence is a fact needed to be decided by the court as the defence of unsoundness of mind was raised. To arrive at that opinion, one must have special knowledge and experience in dealing with people’s behavior. A Magistrate in ordinary sense is not an expert in that field ... and must be assisted with an expert opinion to arrive at the decision. No doubt in this case the Magistrate was assisted by DW2’s evidence. But that evidence clearly supported the defence and there was no other evidence to contradict or discredit her evidence ...”
“The Magistrate should have accepted DW2’s opinion. In his judgment, the learned Magistrate said that the behavior of the appellant indicated she was of sound mind at the time of the offence. Perusing the record of appeal, I found no doubt the appellant did some acts after the commission of the offence but she was assisted by her husband and the parent in doing the acts. The appeal record also shows she was so obsessed with the belief of getting pregnant and having a baby. DW2 had clearly considered these facts and other surrounding issues before coming to the conclusion on the appellant’s mental capacity. As such there was no other evidence to rebut the finding of DW2 and under the circumstances the court should have accepted DW2’s evidence.” – per Mohd Zaki Abdul Wahab JC in Noraini Mat Zainol v. PP [2012] 8 CLJ 846.
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Legal Network Series
YATIN MAHMOOD v. MOHD MADZHAR SAPUAN & ORS
BANKING: Banker and customer - Action by customer against banker - Authorisation - Whether monies in account belonging to plaintiff misappropriated by 1st defendant - Whether account was in fact opened and operated by plaintiff - If so, whether plaintiff bound by the mandate empowering 1st defendant to operate the account
BANKING: Banker and customer - Action by customer against banker - Duty of care - Whether 3rd defendant observed reasonable skill and care in executing plaintiff's orders when balance of the loan sum of RM272,519.87 in the account was withdrawn by 1st defendant and when RM439,439.00 was transferred to 1st defendant's account - Whether 3rd defendant carried out the instructions of the plaintiff blindly relying entirely on the mandate - Whether 3rd defendant acted recklessly in failing to make such inquiries as a reasonable person would make
TORT: Conspiracy - Conspiracy to defraud - Misappropriation of monies - Whether 1st defendant acted in concert with 3rd defendant - Whether 1st defendant conspired with 3rd defendant to cheat plaintiff
FURNISHING FASHIONS SDN BHD v. SOON SENG COMPANY SDN BHD & ORS
CONTRACT: Guarantee - Undertaking - Whether 2nd and 3rd defendants had given guarantees and undertakings to the effect that 1st defendant would pay plaintiff all outstanding monies owing for work done and completed to date as well as for outstanding works under the 3rd contract - Whether plaintiff failed to prove that 2nd and 3rd defendants gave the guarantees and undertakings
COMPANY LAW: Lifting of corporate veil - Whether 2nd defendant was alter ego of 1st defendant and Westmount Leisure Sdn Bhd (Westmount) - Belabur Jaya was major shareholder of Westmount - Whether sufficient basis for Court to pierce the corporate veil - Whether the Court entitled to look at Westmount, Belabur Jaya, and 1st defendant as forming one single economic unit - Whether there was conclusive evidence that companies conducted themselves as if they were part of a single economic unit - Whether actions of each of the companies should be viewed disparately and individually
TORT: Conspiracy to defraud - Whether Westmount's proposed restructuring scheme was a ploy to stall creditors while they attempted to dispose of the Hotel to 4th defendant - Whether plaintiff proved fraud beyond a reasonable doubt - Whether decision to sell Hotel to 4th defendant to offset bridging loan given by MBSB was purely an economic decision - Whether sale and purchase agreement between Westmount and 4th defendant was a valid agreement - Whether plaintiff succeeded in establishing a conspiracy to defraud by all the defendants
MOHD AZRI ABDUL SAMAD v. PP
CRIMINAL PROCEDURE: Appeal - Appeal against conviction - Findings of fact by trial judge - Finding that appellant agreed to accept sum corruptly for himself through PW-2 - Finding that trap money was corruptly accepted by appellant within s. 11(a) of the Anti Corruption Act, 1997 - Finding that appellant failed to rebut the presumption under s. 42 of the Anti Corruption Act, 1997 - Whether Session Judge was wrong to come to such findings - Whether interference by appellate court warranted
CRIMINAL PROCEDURE: Appeal - Appeal against sentence - Adequacy – Offence of giving or accepting gratification by agent - Whether sentence imposed adequate and fair in all the circumstances of the case
CRIMINAL LAW: Anti-Corruption Act 1997 - s. 11(a) - Offence of giving or accepting gratification by agent - Charge stated that appellant corruptly agreed to accept for himself RM600.00 from PW-2 - PW-2 did not lodge a complaint to Badan Pencegah Rasuah - Whether the complaint (Exhibit P-4) was merely basis for the commencement of investigation - Whether exhibit P-4 could be treated as substantive evidence - Whether negated the fact of such corrupt acceptance by appellant through PW-2
SUBRAMANIAM MUTHUVEERAN & ORS v. MAHKAMAH PERUSAHAAN MALAYSIA
ADMINISTRATIVE LAW: Judicial review - Certiorari - Application for - Industrial Court holding that applicant's dismissal was with just cause and excuse - Finding that the cause of the dispute was the suspension of Mohd Shata and not a trade dispute - Whether Industrial Court carefully considered the evidence of all the witnesses - Whether Industrial Court considered evidence which showed that applicant's conduct amounted to a strike which was illegal - Whether Industrial Court acted on no evidence or came to a conclusion which on the evidence it could not reasonably come to - Whether there was error of law by the Industrial Court
BAN JOON SIN v. MAHKAMAH PERUSAHAAN MALAYSIA & ANOR
ADMINISTRATIVE LAW: Judicial review - Certiorari - Application for - Whether Industrial Court committed errors of law related to the charges and domestic inquiry - Finding by Industrial Court that applicant understood what he was charged for and that inquiry was properly conducted and rules of natural justice complied with - Whether Industrial Court properly considered applicant's contention and evidence adduced - Whether Industrial Court committed any error of law that merited curial intervention - Whether Industrial Court considered all relevant matters and had not considered irrelevant matters - Whether findings of the Industrial Court supported by evidence - Whether Industrial Court's decision suffered from infirmities of illegality, irrationality or procedural impropriety
CLJ 2013 Volume 6 (Part 3)
COURT
COURT OF APPEAL
Fiaz Ahamed Ibrahim Gani v. PP
Abdul Malik Ishak, Azahar Mohamed, Balia Yusof Wahi JJCA
(Criminal Law; Evidence - Dangerous Drugs Act 1952 - Section 39B(1)(a) - Trafficking in dangerous drugs - Presumption under s. 37(da) - Exhibit - Difference in gross weight of cannabis - Whether there was break in chain of evidence) [2013] 6 CLJ 261 [CA]HIGH COURT
N Indra Nallathamby v. Datuk Seri Khalid Abu Bakar & Ors
VT Singham J
(Police; Tort - Arrest - False imprisonment - Deceased detained for investigation for theft of motorcar pursuant to remand warrant granted by Magistrate - Deceased beaten to death by policemen whilst in detention - Whether detention unlawful resulting in false imprisonment - Whether cause of action for false imprisonment against police established) [2013] 6 CLJ 272 [HC]SUBJECT INDEX
CRIMINAL LAW
Dangerous Drugs Act 1952 - Section 39B(1)(a) - Trafficking in dangerous drugs - Trafficking - Presumption under s. 37(da) - Whether possession affirmatively proven - Whether presumption rebutted - Whether a complete denial of prosecution's case - Whether passive possession made out
Fiaz Ahamed Ibrahim Gani v. PP
(Abdul Malik Ishak, Azahar Mohamed, Balia Yusof Wahi JJCA) [2013] 6 CLJ 261 [CA]EVIDENCE
Exhibit - Break in chain of evidence - Difference in gross weight of cannabis - Whether doubt raised as to storage and movement of exhibit - Failure to call witness - Whether there was break in chain of evidence - Whether created doubt as to identity of cannabis
Fiaz Ahamed Ibrahim Gani v. PP
(Abdul Malik Ishak, Azahar Mohamed, Balia Yusof Wahi JJCA) [2013] 6 CLJ 261 [CA]POLICE
Arrest - False imprisonment - Deceased detained for investigation for theft of motorcar pursuant to remand warrant granted by Magistrate - Deceased beaten to death by policemen whilst in detention - Remand warrant abused - Whether detention unlawful resulting in false imprisonment - Whether cause of action for false imprisonment against police established - Whether s. 32(1) Police Act 1967 applicable
N Indra Nallathamby v. Datuk Seri Khalid Abu Bakar & Ors
(VT Singham J) [2013] 6 CLJ 272 [HC]Duties - Statutory duty - Breach of - Remand prisoner beaten to death by policemen whilst in detention - Systematic ill-treatment, torture and grievous injuries inflicted on deceased - Whether defendants liable for deceased's death
N Indra Nallathamby v. Datuk Seri Khalid Abu Bakar & Ors
(VT Singham J) [2013] 6 CLJ 272 [HC]TORT
Damages - Aggravated damages - Liability against police - Remand prisoner beaten to death by policemen whilst in detention - Systematic ill-treatment, torture and grievous injuries inflicted on deceased - Whether aggravated damages awarded
N Indra Nallathamby v. Datuk Seri Khalid Abu Bakar & Ors
(VT Singham J) [2013] 6 CLJ 272 [HC]Damages - Exemplary damages - Liability against police - Remand prisoner beaten to death by policemen whilst in detention - Systematic ill-treatment, torture and grievous injuries inflicted on deceased - Whether exemplary damages awarded - Rookes v. Barnard
N Indra Nallathamby v. Datuk Seri Khalid Abu Bakar & Ors
(VT Singham J) [2013] 6 CLJ 272 [HC]False imprisonment - Allegation against police - Deceased detained for investigation for theft of motorcar pursuant to remand warrant granted by Magistrate - Deceased beaten to death by policemen whilst in detention - Remand warrant abused - Whether detention unlawful resulting in false imprisonment - Whether cause of action for false imprisonment against police established - Whether s. 32(1) Police Act 1967 applicable
N Indra Nallathamby v. Datuk Seri Khalid Abu Bakar & Ors
(VT Singham J) [2013] 6 CLJ 272 [HC]Misfeasance - Misfeasance in public office - Police officer - Remand prisoner beaten to death by policemen whilst in detention - Systematic ill-treatment, torture and grievous injuries inflicted on deceased - Attempted cover-up - No disciplinary action taken against offending policemen - False entries made in station diary - Whether tort of misfeasance established against superior officers
N Indra Nallathamby v. Datuk Seri Khalid Abu Bakar & Ors
(VT Singham J) [2013] 6 CLJ 272 [HC]Vicarious liability - Police - Remand prisoner beaten to death by policemen whilst in detention - Elements of vicarious liability - Systematic ill-treatment, torture and grievous injuries inflicted on deceased - Tortfeasor named as co-defendant - Whether policemen engaged on frolic of their own - Failure to properly monitor interrogation of deceased - Whether there was breach of statutory duty and misfeasance - Whether vicarious liability established - Government Proceedings Act 1956, ss. 5 & 6
N Indra Nallathamby v. Datuk Seri Khalid Abu Bakar & Ors
(VT Singham J) [2013] 6 CLJ 272 [HC]
CLJ 2013 Volume 6 (Part 4)
COURT
HIGH COURT
Abu Bakar Pangis & Ors v. Tung Cheong Sawmill Sdn Bhd & Ors
Stephen Chung JC
(Native Law And Custom; Land Law - Land dispute - Native customary rights - Inheritance of land from ancestors - Whether alienation lawful) [2013] 6 CLJ 413 [HC]Malayan Banking Bhd v. Premier Expand Sdn Bhd & Ors (The Owners Of And/Or Any Other Persons Interested In The Ship Or Vessels The 'Zuhairi' And 'Nasuha')
Nallini Pathmanathan J
(Banking; Contract; Civil Procedure - Admiralty - Action in rem - Third party mortgage - Failure to register interest - Equitable mortgage - Bona fide purchaser) [2013] 6 CLJ 431 [HC]PP v. Yii Soon Ho
Zulkifli Bakar J
(Criminal Law; Evidence - Murder - Circumstantial evidence - Major depressive disorder and intoxication - Defence of - Whether established) [2013] 6 CLJ 464 [HC]Tirai Kristal Sdn Bhd lwn. Pengarah Tanah Dan Galian Wilayah Persekutuan Kuala Lumpur
Siti Khadijah S Hassan Badjenid PK
(Undang-Undang Tanah - Pembelian tanah - Catatan carian persendirian - Maklumat tidak tepat - Kewajipan untuk berhati-hati - Pampasan) [2013] 6 CLJ 530 [HC]SUBJECT INDEX
BANKING
Securities for advances - Mortgage - Third party mortgage - Failure to register interest - Whether equitable mortgage existed - Whether vessels transferred to avoid registration of equitable mortgage - Whether registered mortgage had priority over prior equitable mortgage
Malayan Banking Bhd v. Premier Expand Sdn Bhd & Ors (The Owners Of And/Or Any Other Persons Interested In The Ship Or Vessels The 'Zuhairi' And 'Nasuha')
(Nallini Pathmanathan J) [2013] 6 CLJ 431 [HC]CIVIL PROCEDURE
Admiralty - Action in rem - Arrest of vessels - Injunction to prohibit dealings with vessels - Breach of court order - Whether gave rise to cause of action for contempt - Whether bona fide purchaser entitled to vessels
Malayan Banking Bhd v. Premier Expand Sdn Bhd & Ors (The Owners Of And/Or Any Other Persons Interested In The Ship Or Vessels The 'Zuhairi' And 'Nasuha')
(Nallini Pathmanathan J) [2013] 6 CLJ 431 [HC]CONTRACT
Breach - Agreement - Effect of transfers in breach of contractual obligation - Whether transfers void - Whether doctrine of frustration applied - Whether defendant should indemnify plaintiff
Malayan Banking Bhd v. Premier Expand Sdn Bhd & Ors (The Owners Of And/Or Any Other Persons Interested In The Ship Or Vessels The 'Zuhairi' And 'Nasuha')
(Nallini Pathmanathan J) [2013] 6 CLJ 431 [HC]CRIMINAL LAW
Penal Code - Section 302 - Murder - Circumstantial evidence - Whether irresistible conclusion drawn that accused murdered deceased - Whether court took into consideration nature and number of injuries sustained by deceased - Major depressive disorder and intoxication - Defence of - Whether established - Penal Code, s. 83(1) - Whether accused had intention to cause death
PP v. Yii Soon Ho
(Zulkifli Bakar J) [2013] 6 CLJ 464 [HC]EVIDENCE
Circumstantial evidence - Murder - Whether cumulative effect of evidence irresistibly pointed to accused having murdered deceased - Whether nature of injuries and weapon used showed intention of accused to kill deceased - Whether accused aware of his actions at the material time - Major depressive disorder and intoxication - Defence of - Whether established
PP v. Yii Soon Ho
(Zulkifli Bakar J) [2013] 6 CLJ 464 [HC]LAND LAW
Alienation of land - Native customary rights - Inheritance of land from ancestors through native customary rights - Parts of land claimed already issued with timber licences - Whether native customary rights extinguished - Whether alienation lawful - Whether claimants entitled to individual titles of plots of land - Whether alienation of land constitutional under art. 5 Federal Constitution - Sarawak Land Code, s. 18
Abu Bakar Pangis & Ors v. Tung Cheong Sawmill Sdn Bhd & Ors
(Stephen Chung JC) [2013] 6 CLJ 413 [HC]NATIVE LAW AND CUSTOM
Land dispute - Native customary rights - Inheritance of land from ancestors through native customary rights - Whether proved - Alienation of land - Whether lawful - Parts of land claimed already issued with timber licences - Whether native customary rights extinguished - Whether claimants entitled to individual titles of plots of land
Abu Bakar Pangis & Ors v. Tung Cheong Sawmill Sdn Bhd & Ors
(Stephen Chung JC) [2013] 6 CLJ 413 [HC]INDEKS PERKARA
UNDANG-UNDANG TANAH
Pembelian tanah - Catatan carian persendirian - Maklumat tidak tepat - Kewajipan untuk berhati-hati - Sama ada defendan cuai dan abai dalam tanggungjawabnya - Sama ada defendan bertanggungjawab atas kerugian yang dialami oleh plaintif - Sama ada plaintif layak menuntut pampasan - Kanun Tanah Negara, ss. 384 & 386
Tirai Kristal Sdn Bhd lwn. Pengarah Tanah Dan Galian Wilayah Persekutuan Kuala Lumpur
(Siti Khadijah S Hassan Badjenid PK) [2013] 6 CLJ 530 [HC]ARTICLELegal Network Series Article
1. CLIENT'S VIEWPOINT: OLDER CLIENT PERSPECTIVE* [Read excerpt]
2. NO “PERSON AGGRIEVED” TAG FOR INFRINGERS [Read excerpt]
by: TAMARA LEE CIAI* [2013] 1 LNS(A) lvLEGISLATION HIGHLIGHTSPrincipal Acts
Number Title Date coming into force Repealing ACT 759 Islamic Financial Services Act 2013 30 June 2013 [PU(B) 277/2013] - except para(s) 1 to 10 of Schedule 9 and para(s) 13 to 19 of Schedule 9 -Nil- ACT 758 Financial Services Act 2013 30 June 2013 [PU(B) 276/2013] - except s 129 and Schedule 9 -Nil- ACT 757 Strata Management Act 2013 Not Yet In Force -Nil- ACT 756 Traditional And Complementary Medicine Act 2013 Not Yet In Force -Nil- ACT 755 Finance Act 2013 See s 3 for the Income Tax Act; s 41 for the Stamp Act; s 47 for the Petroleum (Income Tax) Act and s 55 for the Real Property Gains Tax Act -Nil- Amending Acts
Number Title Date coming into force Principal/Amending Act No ACT A1452 Animals (Amendment) Act 2013 20 August 2013 ACT 647 ACT A1451 Perbadanan Kemajuan Filem Nasional Malaysia (Amendment) Act 2013 1 April 2013 [PU(B) 89/2013] ACT 244 ACT A1450 Strata Titles (Amendment) Act 2013 Not Yet In Force ACT 318 ACT A1449 Industrial Designs (Amendment) Act 2013 1 July 2013 [PU(B) 86/2013] ACT 552 ACT A1448 Central Bank Of Malaysia (Amendment) Act 2013 8 February 2013 [PU(B) 44/2013] ACT 701 PU(A)
Number Title Date of Publication Date coming into force Principal/Amending Act No PU(A) 269/2013 Prisons (Amendment) Regulations 2013 3 26 August 2013 26 August 2013 PU(A) 325/2000 PU(A) 268/2013 National Skills Development (Waiver Of Fee To Winner Of National Or International Skills Competition) Regulations 2013 22 August 2013 23 August 2013 ACT 652 PU(A) 267/2013 National Skills Development (Waiver Of Fee To Member Of Sabah Society For The Blind) Regulations 2013 22 August 2013 22 August 2013 ACT 652 PU(A) 266/2013 National Skills Development (Waiver Of Fee To Trainee At Accredited Centre) Regulations 2013 22 August 2013 23 August 2013 ACT 652 PU(A) 265/2013 Customs (Values) (Crude Petroleum Oil) (No. 17) Order 2013 22 August 2013 22 August 2013 to 4 September 2013 ACT 235 PU(B)
Number Title Date of Publication Date coming into force Principal/Amending Act No PU(B) 361/2013 Notification Of Legal Entry And Exit Points 21 August 2013 22 August 2013 PU(A) 104/2010 PU(B) 360/2013 Notice To Third Parties 20 August 2013 21 August 2013 ACT 613 PU(B) 359/2013 Appointment Of Date Of Coming Into Operation 19 August 2013 20 August 2013 ACT A1452 PU(B) 358/2013 Notice To Third Parties 19 August 2013 20 August 2013 ACT 613 PU(B) 357/2013 Appointment Under Section 8 18 August 2013 18 August 2013 ACT 297 To view previous issues of the CLJ Bulletin, Click here
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