Legal Network Series

[2012] 1 LNS 1346	HAJJAH DIOT OMAR v. THE DIRECTOR OF INSOLVENCY, MALAYSIA	STATUTORY INTERPRETATION: Construction of statutes - Applicability - Leave to proceed against Director General of Insolvency (DGI) – Whether s. 8 of the Bankruptcy Act 1967 was relevant to instant application – Whether s. 8 only forbade suits in respect of debts provable in bankruptcy unless leave was obtained - If applicant applied for leave under s. 8 and joined the DGI as a party to the action, whether the DGI could be made a party - Applicant instead invoked s. 59(5) of the Bankruptcy Act – Whether s. 59(5) was a specific provision that entitled any person to sue the DGI for orders such as declaratory orders to rescind a contract made with a bankrupt – Whether s. 59(5) was a stand-alone provision unrelated to s. 8 - Whether s. 59(5) required leave of court
[2013] 1 LNS 624	LOH CHIN HAU v. MANDY NGAN BIK FOONG & ANOTHER CASES	AGENCY: Authority of agent - Warrant of authority - Plaintiff bought property belonging to 1st defendant from 1st defendant's purported agent - Whether 2nd defendant was lawful agent of 1st defendant - Whether 2nd defendant authorised to enter into the agreement for sale - If 2nd defendant was not 1st defendant's agent, whether 2nd defendant was authorised by 1st defendant, through her husband, Ken Chan, to agree to sale of the property to plaintiff - Whether contemporaneous documents and parties' conduct supported 2nd defendant's allegation that she had been authorised by 1st defendant to enter into the agreement with plaintiff - Whether plaintiff as a practising lawyer should have cautioned himself as to whether 2nd defendant was authorised by 1st defendant to issue the Letter of offer TORT: Conspiracy - Elements of - Whether three prerequisites for tort to exist proved by 1st defendant on the standard required by law - Whether there was an agreement between 2nd defendant and plaintiff with the aim of injuring 1st defendant and resulted in damage to 1st defendant - Whether 1st defendant proved her claim against 2nd defendant and plaintiff for conspiracy
[2013] 1 LNS 637	TENAGA NASIONAL BERHAD v. EMPAYAR CANGGIH SDN BHD (Dahulunya dikenali sebagai ODVD Manufacturer Sdn Bhd)	CONTRACT: Breach - Agreement - Power Supply Agreement - Whether plaintiff's meter tampered with - Whether resulted in plaintiff suffering loss of revenue - Whether defendant liable to plaintiff for the loss of revenue pursuant to s. 38(3) of the Electricity Supply Act 1990 - Purported oral tenancy agreement between defendant and Kemboja Jaguh Sdn Bhd - Whether defendant could shift liability to a related private limited company under the guise of a tenancy agreement - Whether plaintiff required to prove that defendant committed an offence under s. 37(1), (3) or (14) of the Electricity Supply Act 1990 before plaintiff was entitled to claim for loss of revenue incurred under s. 38(3) of the Electricity Supply Act 1990 - Whether defendant as the account holder and landlord of the premises, owed a duty of care to plaintiff to check the meter regularly and to detect any possible tampering by the actual consumer
[2014] 1 LNS 156	MEDA DEVELOPMENT SDN BHD & ANOR v. RAVINDERJIT SINGH & ANOR	ADMINISTRATIVE LAW: Judicial review - Judicial review proceedings - Distinction between public law proceedings and private law proceedings - Principles of judicial review - Procedural Impropriety - Illegality – Irrationality ADMINISTRATIVE LAW: Judicial review - Application for - Certiorari - Whether Industrial Court applied correct test in determining whether or not claimant was constructively dismissed - Whether Industrial Court correct in making a finding that there was a dismissal - Whether applicant had shown dismissal was with just cause or excuse - Whether evidence examined and issues dealt with clearly and concisely - Whether Industrial Court misdirected itself in law as to its jurisdiction
[2014] 1 LNS 348	THOMAS CHIN YUN PHIN v. MACQUARIE CAPITAL SERVICES (MALAYSIA) SDN BHD & ANOR	SECURITIES: Shares - Causing misleading appearance of market - Whether plaintiff carried out the 'churning' of the Gamuda shares with the knowledge and encouragement of 1st and/or 2nd defendant - Whether plaintiff aware that the inflated trades or churning was illegal, unlawful and in breach of 1st defendant's policies - Whether such illegality prevented plaintiff from relying on his own illegal act to found a cause of action CONTRACT: Employment contract - Breach - Employee's duties to employer - Plaintiff senior-most employee and a director of 1st defendant - Whether plaintiff had a duty to act in good faith and in best interest of 1st defendant - Whether plaintiff breached his duties and obligations - Whether plaintiff should be allowed to found a cause of action based on his own transgression of the law or to benefit from his own wrong doing TORT: Conspiracy to injure – 1st defendant's conduct in reporting to Bursa Malaysia Securities Malaysia Berhad (Bursa) - Whether 1st and 2nd defendants conspired to injure plaintiff - Whether any agreement between 1st and 2nd defendants to injure plaintiff - Whether 1st defendant statutorily obliged to report its findings of breaches of the statute and/or Bursa Rules to the relevant authority - Whether 1st defendant's compliance of the law could be a ground for plaintiff to found and maintain a cause of action in negligence or conspiracy against defendants TORT: Negligence - Employer's duty of care - Whether 1st defendant as employer owed a duty of care to ensure that employee did not partake in any illegal activity or violate the law - Whether 1st defendant was negligent towards plaintiff - Whether duty to ensure compliance of the relevant laws and regulations rested upon the Board of Directors and senior management of 1st defendant which included the plaintiff

CLJ 2014 Volume 7 (Part 4)

COURT

FEDERAL COURT

Mohd Naki Mohd Yusuf v. PP
Arifin Zakaria CJ, Suriyadi Halim Omar, Ahmad Maarop, Hasan Lah, Zaleha Zahari FCJJ
(Criminal Law; Criminal Procedure; Evidence - Murder - Identity of victim - Whether conviction supported by evidence - Child witness) [2014] 7 CLJ 441 [FC]

COURT OF APPEAL

Balbeer Singh Karam Singh & Ors v. Sentul Raya Sdn Bhd
Abdul Wahab Patail, Mohd Zawawi Salleh, Umi Kalthum Abd Majid JJCA
(Contract - Damages - Specific performance - Whether purchasers entitled to compensation in lieu of specific performance) [2014] 7 CLJ 461 [CA]

IJM Corporation Berhad v. Zamri Hj Ibrahim & Anor
Clement Skinner, Alizatul Khair Osman, Rohana Yusuf JJCA
(Contract; Evidence - Notice of vacant possession - Whether document admissible) [2014] 7 CLJ 479 [CA]

Loh Shiiun Hing v. Kurnia Insurans (Malaysia) Bhd
Abu Samah Nordin, Hishamudin Mohd Yunus, Aziah Ali JJCA
(Insurance - Marine insurance - Character of policy) [2014] 7 CLJ 490 [CA]

Ooi Chee Seong & Anor v. PP
Abdul Malik Ishak, Azahar Mohamed, Mohd Zawawi Salleh JJCA
(Criminal Law; Criminal Procedure; Evidence - Dangerous Drugs Act 1952 - Section 39B(1)(a) - Amendment of charge) [2014] 7 CLJ 505 [CA]

Penguasa Tempat Tahanan Perlindungan Kamunting, Taiping & Ors v. Badrul Zaman PS Md Zakariah
Syed Ahmad Helmy, Abdul Wahab Patail, Mohamad Ariff Yusof JJCA
(Administrative Law; Tort - Detention - Validity of - Judicial review - False imprisonment - Claim for damages) [2014] 7 CLJ 533 [CA]

HIGH COURT

Dceil Imex Sdn Bhd v. Pembinaan Punca Cergas Sdn Bhd
Nallini Pathmanathan J
(Arbitration; Civil Procedure; Statutory Interpretation - Proceedings - Order for exclusion of time pursuant to s. 30(5) Limitation Act 1953 - Policy of) [2014] 7 CLJ 552 [HC]

Urban Delta Sdn Bhd v. Toh Ah Noi
Azizul Azmi Adnan JC
(Legal Profession; Contract - Stakeholder - Whether discount arrangement enforceable) [2014] 7 CLJ 575 [HC]

SUBJECT INDEX

ADMINISTRATIVE LAW

Exercise of administrative powers - Detention - Extended period of detention under s. 8(7) of Internal Security Act 1960 - Validity of - Failure to provide grounds and allegations of fact - Whether contravened ss. 8(7), 11 and 12 of ISA and arts. 5(1) and 151(1) Federal Constitution - Whether extended detention order lawful and constitutional
Penguasa Tempat Tahanan Perlindungan Kamunting, Taiping & Ors v. Badrul Zaman PS Md Zakariah
(Syed Ahmad Helmy, Abdul Wahab Patail, Mohamad Ariff Yusof JJCA) [2014] 7 CLJ 533 [CA]

Judicial review - Jurisdiction of High Court - Claim for damages arising from unlawful imprisonment or wrongful detention - Whether s. 8B(1) read in conjunction with s. 8B of Internal Security Act 1960 precludes court from entertaining claim
Penguasa Tempat Tahanan Perlindungan Kamunting, Taiping & Ors v. Badrul Zaman PS Md Zakariah
(Syed Ahmad Helmy, Abdul Wahab Patail, Mohamad Ariff Yusof JJCA) [2014] 7 CLJ 533 [CA]

ARBITRATION

Proceedings - Null and void - Arbitration proceedings commenced by parties declared null and void - Order for exclusion of time pursuant to s. 30(5) Limitation Act 1953 - Application for - Period between date of commencement of arbitration and date when arbitration was declared null and void - Whether ought to be excluded in computing time for purposes of respondent's counterclaim - Policy of s. 30(5) - Whether applicable - Delay in filing present application for exclusion of time - Whether rendered court functus officio - Whether s. 30(5) could be invoked in conjunction with s. 18(8) of the Arbitration Act 2005 - Whether proper case for exercise of discretion to exclude time
Dceil Imex Sdn Bhd v. Pembinaan Punca Cergas Sdn Bhd
(Nallini Pathmanathan J) [2014] 7 CLJ 552 [HC]

CIVIL PROCEDURE

Time - Exclusion of - Arbitration proceedings commenced by parties declared null and void by order of court - Order for exclusion of time pursuant to s. 30(5) Limitation Act 1953 - Application for - Period between date of commencement of arbitration and date when arbitration was declared null and void - Whether ought to be excluded in computing time for purposes of respondent's counterclaim - Policy of s. 30(5) - Whether applicable - Delay in filing present application for exclusion of time - Whether rendered court functus officio - Whether s. 30(5) could be invoked in conjunction with s. 18(8) of the Arbitration Act 2005 - Whether proper case for exercise of discretion to exclude time
Dceil Imex Sdn Bhd v. Pembinaan Punca Cergas Sdn Bhd
(Nallini Pathmanathan J) [2014] 7 CLJ 552 [HC]

CONTRACT

Damages - Specific performance - Contract incapable of performance - Whether parties entitled to damages when prayer for specific performance dismissed - Specific Relief Act 1950, s. 18(5)
Balbeer Singh Karam Singh & Ors v. Sentul Raya Sdn Bhd
(Abdul Wahab Patail, Mohd Zawawi Salleh, Umi Kalthum Abd Majid JJCA) [2014] 7 CLJ 461 [CA]

Sale and purchase of property - Failure to complete - Whether agreement incapable of performance - Whether purchasers entitled to compensation in lieu of specific performance - Whether purchasers entitled to liquidated and ascertained damages - Whether rate of damages dictated by developers - Specific Relief Act 1950, ss. 18(2) & (5)
Balbeer Singh Karam Singh & Ors v. Sentul Raya Sdn Bhd
(Abdul Wahab Patail, Mohd Zawawi Salleh, Umi Kalthum Abd Majid JJCA) [2014] 7 CLJ 461 [CA]

Sale and purchase agreement - Stakeholder - Monies held by advocate and solicitor as stakeholder - Developer's action to recover remaining unpaid stakeholder sums from solicitor - Scale fees for non-contentious matters - Whether discount arrangement enforceable - Whether existence of discount fee arrangement rendered retainer between developer and solicitor void ab initio - Whether fee arrangement in contravention of s. 114(1) Legal Profession Act 1976 and Solicitors' Remuneration Order 1991 - Illegality and unenforceability of solicitor-client agreement - Whether tainted sale and purchase agreement - Whether developer's rights to claim for remaining stakeholder sums affected
Urban Delta Sdn Bhd v. Toh Ah Noi
(Azizul Azmi Adnan JC) [2014] 7 CLJ 575 [HC]

Sale and purchase of property - Vacant possession - Delivery of - Notice of vacant possession - Whether notice given to purchasers - Purchasers denied receipt of notice - Whether failure to call maker of notice rendered notice inadmissible - Whether notice formed part of company's record - Whether subsequent conduct proved purchasers aware of delivery of vacant possession
IJM Corporation Berhad v. Zamri Hj Ibrahim & Anor
(Clement Skinner, Alizatul Khair Osman, Rohana Yusuf JJCA) [2014] 7 CLJ 479 [CA]

CRIMINAL LAW

Dangerous drugs - Trafficking - Drugs found in condominium unit - Whether appellants mere visitors to condominium unit - Whether appellants real owner of drugs found - Whether trial judge sufficiently appreciated appellants' defence - Whether trial judge imposed higher burden on defence - Whether conviction and sentence safe
Ooi Chee Seong & Anor v. PP
(Abdul Malik Ishak, Azahar Mohamed, Mohd Zawawi Salleh JJCA) [2014] 7 CLJ 505 [CA]

Dangerous Drugs Act 1952 - Section 39B(1)(a) - Appeal against conviction and sentence - Three charges for trafficking in dangerous drugs - Second charge amended to possession - Appellants sentenced to death for all three charges - Whether amended charge was read - Whether plea was taken - Whether appellants allowed to recall witness - Whether conviction and sentence safe
Ooi Chee Seong & Anor v. PP
(Abdul Malik Ishak, Azahar Mohamed, Mohd Zawawi Salleh JJCA) [2014] 7 CLJ 505 [CA]

Penal Code - Section 302 - Murder - Recovery of decomposed body - Whether identity of victim proven - Whether intention to cause death made out - Whether evidence of child witnesses correctly admitted - Whether trial judge properly evaluated and appraised evidence - Whether assessment of evidence in accord with principles of law - Whether conviction supported by evidence
Mohd Naki Mohd Yusuf v. PP
(Arifin Zakaria CJ, Suriyadi Halim Omar, Ahmad Maarop, Hasan Lah, Zaleha Zahari FCJJ) [2014] 7 CLJ 441 [FC]

CRIMINAL PROCEDURE

Appeal - Appeal against conviction and sentence - Murder - Whether trial judge properly evaluated and appraised evidence - Whether assessment of evidence in accord with principles of law - Whether evidence cumulatively point to appellant's guilt
Mohd Naki Mohd Yusuf v. PP
(Arifin Zakaria CJ, Suriyadi Halim Omar, Ahmad Maarop, Hasan Lah, Zaleha Zahari FCJJ) [2014] 7 CLJ 441 [FC]

Charge - Amendment of charge - Court amended second charge under s. 39B of Dangerous Drugs Act 1952 with charge under s. 12(2) of same Act - Whether amended charge was read - Whether plea was taken - Whether appellants allowed to recall witness - Whether conviction and sentence safe - Criminal Procedure Code, ss. 162, 425
Ooi Chee Seong & Anor v. PP
(Abdul Malik Ishak, Azahar Mohamed, Mohd Zawawi Salleh JJCA) [2014] 7 CLJ 505 [CA]

EVIDENCE

Documentary evidence - Admissibility of - Notice of delivery of vacant possession - Purchasers denied receipt of notice - Whether failure to call maker of notice rendered notice inadmissible - Whether notice formed part of company's record - Whether made in ordinary course of business - Whether document relevant - Whether document admissible - Evidence Act 1950 ss. 32, 73A
IJM Corporation Berhad v. Zamri Hj Ibrahim & Anor
(Clement Skinner, Alizatul Khair Osman, Rohana Yusuf JJCA) [2014] 7 CLJ 479 [CA]

Witness - Child witness - Preliminary inquiry as to comprehension of duty of speaking truth and nature of oath or affirmation - Whether conducted by trial judge - Whether discrepancy existed - Whether evidence admissible
Mohd Naki Mohd Yusuf v. PP
(Arifin Zakaria CJ, Suriyadi Halim Omar, Ahmad Maarop, Hasan Lah, Zaleha Zahari FCJJ) [2014] 7 CLJ 441 [FC]

Witness - Failure by prosecution to call witness - Whether witnesses were material to prosecution's case - Whether witnesses were occupiers of condominium unit - Whether witnesses had care and management of condominium unit - Whether adverse inference should be invoked - Evidence Act 1950, s. 114(g) - Dangerous Drugs Act 1952, s. 37(b)
Ooi Chee Seong & Anor v. PP
(Abdul Malik Ishak, Azahar Mohamed, Mohd Zawawi Salleh JJCA) [2014] 7 CLJ 505 [CA]

INSURANCE

Marine insurance - Character of policy - 'Voyage' and 'time' policies distinguished - Barge sank and lost in rough seas - Claim for amount insured - Repudiation of liability by insurer - Allegation of misrepresentation of identity of barge - Whether barge surveyed - Claim for amount insured in High Court - Claim dismissed on ground of failure to adduce evidence to show nature and full terms of policy - Whether voyage seaworthy - Whether insurer liable to release insured sum
Loh Shiiun Hing v. Kurnia Insurans (Malaysia) Bhd
(Abu Samah Nordin, Hishamudin Mohd Yunus, Aziah Ali JJCA) [2014] 7 CLJ 490 [CA]

LEGAL PROFESSION

Stakeholder - Sale and purchase agreement - Monies held by advocate and solicitor as stakeholder - Developer's action to recover remaining unpaid stakeholder sums from solicitor - Scale fees for non-contentious matters - Whether discount arrangement enforceable - Whether existence of discount fee arrangement rendered retainer between developer and solicitor void ab initio - Whether fee arrangement in contravention of s. 114(1) Legal Profession Act 1976 and Solicitors' Remuneration Order 1991 - Illegality and unenforceability of solicitor-client agreement - Whether tainted sale and purchase agreement - Whether solicitor liable to return remaining sums to developer
Urban Delta Sdn Bhd v. Toh Ah Noi
(Azizul Azmi Adnan JC) [2014] 7 CLJ 575 [HC]

STATUTORY INTERPRETATION

Statutes - Policy of - Policy of s. 30(5) of the Limitation Act 1953 - Whether applicable - Whether word 'agreement' ought to be read into s. 30(5) - Use of words 'null and void' - Whether could preclude application of s. 30(5)
Dceil Imex Sdn Bhd v. Pembinaan Punca Cergas Sdn Bhd
(Nallini Pathmanathan J) [2014] 7 CLJ 552 [HC]

TORT

Damages - False imprisonment - Claim for damages - Extended detention order held to be unlawful and unconstitutional - Failure to appeal against decision - Whether decision stood - Whether findings of liability justified - Whether damages to be grounded on loss of dignity - Whether damages awarded sufficient
Penguasa Tempat Tahanan Perlindungan Kamunting, Taiping & Ors v. Badrul Zaman PS Md Zakariah
(Syed Ahmad Helmy, Abdul Wahab Patail, Mohamad Ariff Yusof JJCA) [2014] 7 CLJ 533 [CA]

ARTICLE

Legal Network Series Article(s)

1. PETUNJUK GEOGRAFI MENURUT PERSPEKTIF UNDANG-UNDANG DI MALAYSIA ^{[Read excerpt]}
    by: AHMAD SHAMSUL ABD AZIZ*, NOR AZLINA MOHD NOOR** [2014] 1 LNS(A) lxxxi

2. STABILISING FRACTIONAL RESERVE BANKING* ^{[Read excerpt]}
    by: ABDUL KARIM ABDULLAH [2014] 1 LNS(A) lxxxiii

LEGISLATION HIGHLIGHTS

Principal Acts

Number	Title	Date coming into force	Repealing
ACT 763	Financial Services Act 2013	Not Yet In Force	-Nil-
ACT 762	Goods And Services Tax Act 2014	1 July 2014 - Parts I, II, IV, VI and XVI, ss 10, 11, 17, 18, 33, 34, 35, 36, 37, 40, 44, 50, 56, 59, 61, 64, 65, 69, 71, 72, 73, 74, 75, 80, 81, 82, 83, 85, 86, 87, 92, 93, 95, 96, 97, 99, 100, 101, 102, 103, 104, 105, 107, 111, 112, 113, 114, 115, 116, 117, 118, 119, 120, 121, 160, 163, 183, 184 and 197, the First Schedule and Second Schedule to the Act; 1 April 2015 - Parts IX, XIII, XVII and XVIII, ss 9, 12, 13, 14, 15, 16, 38, 39, 41, 42, 43, 45, 46, 47, 48, 49, 51, 52, 53, 57, 58, 60, 62, 63, 66, 67, 68, 70, 84, 88, 89, 90, 91, 94, 98, 106, 108, 109, 110, 122, 154, 155, 156, 157, 158, 159, 161, 162, 185, 186, 187, 188, 189, 190, 191, 192, 193, 194, 195 and 196, the Third Schedule and Fourth Schedule to the Act [PU(B) 319/2014]	-Nil-
ACT 761	Finance Act 2014	See s 3 for the Income Tax Act; s 33 for the Stamp Act; s 36 for the Petroleum (Income Tax) Act; s 44 for the Real Property Gains Tax Act and s 50 for the Labuan Business Activity Tax Act	-Nil-
ACT 760	Fees (Department Of Museums Malaysia) (Validation) Act 2014	1 January 1991 to 11 June 2012	-Nil-
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-

Amending Acts

Number	Title	Date coming into force	Principal/Amending Act No
ACT A1468	Promotion Of Investments (Amendment) Act 2014	See section 1(1) to 1(33) of the Act	ACT 327
ACT A1467	Anti-Money Laundering And Anti-Terrorism Financing (Amendment) Act 2014	Not Yet In Force except for section 78 comes into force on 8 August 2014	ACT 613
ACT A1466	Supplementary Supply (2014) Act 2014	25 July 2014	-Nil-
ACT A1465	Private Higher Educational Institutions (Amendment) Act 2014	25 July 2014	ACT 555
ACT A1464	Price Control And Anti-Profiteering (Amendment) Act 2014	Not Yet In Force	ACT 723

PU(A)

Number	Title	Date of Publication	Date coming into force	Principal/Amending Act No
PU(A) 246/2014	Malaysia Deposit Insurance Corporation (Temporary Suspension Period) (Amendment) Regulations 2014	29 August 2014	30 August 2014	PU(A) 432/2012
PU(A) 245/2014	Federal Roads (West Malaysia) (Amendment) (No. 7) Order 2014	26 August 2014	3 September 2014	PU(A) 401/1989
PU(A) 244/2014	Judges' Remuneration (Amendment Of Second Schedule And Fifth Schedule) Regulations 2014	26 August 2014	1 July 2013	ACT 45
PU(A) 243/2014	Factories And Machinery (Exemption To Malaysia Lng Sdn Bhd, Bintulu, Sarawak) (No. 4) Order 2014	25 August 2014	31 July 2014	ACT 139
PU(A) 242/2014	Factories And Machinery (Exemption To Malaysia Lng Sdn Bhd, Bintulu, Sarawak) (No. 3) Order 2014	25 August 2014	11 July 2014	ACT 139

PU(B)

Number	Title	Date of Publication	Date coming into force	Principal/Amending Act No
PU(B) 390/2014	Revocation Of Appointment Of Place Of Detention	28 August 2014	29 August 2014	ACT 611
PU(B) 389/2014	Revocation Of Appointment Of Approved School	28 August 2014	29 August 2014	ACT 611
PU(B) 388/2014	Appointment Of Authorized Officers	28 August 2014	1 September 2014	ACT 506
PU(B) 387/2014	Appointment Of Authorized Officers	28 August 2014	1 September 2014	ACT 308
PU(B) 386/2014	Appointment Of Probation Officers	28 August 2014	1 September 2014	ACT 611

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