CLJ Bulletin, Issue 2011, Vol 37
23 September 2011
CLJ Law Malaysia
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| New This Week | 1. Legislation Highlights |
| 2. Articles | |
| a) Legal Network Series Articles | |
| b) CLJ Articles | |
| 3. Latest Cases | |
| a) Legal Network Series | |
| b) CLJ Volume 7 (Part 1) 2011 |
Principal Acts
NUMBER TITLE
DATE COMING INTO FORCE
REPEALING
ACT 672 Solid Waste And Public Cleansing Management Act 2007 1 September 2011 [PU(B) 490/2011]
As the date on which the Act comes into operation in the States of Perlis, Kedah, Pahang, Negeri Sembilan, Malacca and Johore, and the Federal Territories of Kuala Lumpur and Putrajaya
- Nil - ACT 692 National Kenaf And Tobacco Board Act 2009 1 April 2010 [PU(B) 154/2010] - Nil - ACT 727 Food Analysts Act 2011 Not Yet In Force - Nil - ACT 729 National Sports Institute Act 2011 16 September 2011 [PU (B) 503/2011] - Nil - ACT 730 Trade Descriptions Act 2011 1 November 2011 [PU(B) 540/2011] - Nil - ACT 731 Money Services Business Act 2011 1 December 2011 [PU(B) 590/2011] - Nil - ACT 732 National Wages Consultative Council Act 2011 Not Yet In Force - Nil - Amending Acts
NUMBER TITLE
DATE COMING INTO FORCE
PRINCIPAL / AMENDING ACT NO
ACT A1399 Malaysian Industrial Development Authority (Incorporation) (Amendment) Act 2011 Not Yet In Force ACT 397 ACT A1400 Promotion Of Investments (Amendment) Act 2011 Not Yet In Force ACT 327 ACT A1401 Judges Remuneration (Amendment) Act 2011 Not Yet In Force ACT 45 ACT A1402 Petroleum (Income Tax) (Amendment) Act 2011 30 November 2010 ACT 543 ACT A1403 Securities Commission (Amendment) Act 2011 Not Yet In Force ACT 498 ACT A1404 Valuers, Appraisers And Estate Agents (Amendment) Act 2011 Not Yet In Force ACT 242 ACT A1405 International Organizations (Privileges And Immunities) (Amendment) Act 2011 Not Yet In Force ACT 485 ACT A1406 Capital Markets And Services (Amendment) Act 2011 Not Yet In Force ACT 671 PU(A)
NUMBER TITLE DATE COMING INTO FORCE PRINCIPAL / AMENDING ACT NO
PU(A) 297/2011 National Heritage (Declaration Of National Heritage) (Historical Object) (No 3) Order 2011 24 August 2011 ACT 645 PU(A) 316/2011 Customs (Values) (Palm Oil) (No 36) Order 2011 5 September 2011 ACT 235 PU(A) 317/2011 Road Transport (Prohibition Of Use Of Road) (Federal Roads) Order 2011 5 September 2011 ACT 333 PU(A) 318/2011 Customs (Values) (Crude Petroleum Oil) (No 18) Order 2011 8 September 2011 ACT 235 PU(A) 319/2011 Criminal Procedure (Rates Of Payment To Witnesses) Rules 2011 9 September 2011 ACT 593 PU(B)
NUMBER TITLE DATE COMING INTO FORCE PRINCIPAL / AMENDING ACT NO
PU(B) 494/2011 Appointment Of Date Of Coming Into Operation 26 August 2011 ACT A1398 PU(B) 495/2011 Appointment Of Date Of Coming Into Operation 26 August 2011 ACT 726 PU(B) 496/2011 Notice To Third Parties 7 September 2011 ACT 613 PU(B) 497/2011 Notice To Third Parties 7 September 2011 ACT 613 PU(B) 498/2011 Notice To Third Parties 9 September 2011 ACT 613 PU(B) 503/2011 Appointment Of Date Coming Into Operation Not Yet Inforce ACT 729
a) Legal Network Series Articles
1. Horses For Courses: Designing The Appropriate Conflict Resolution System* [Read
excerpt]
By Nathalie Birt And David Newton**
1. Judicial Recognition Of The Orang Asli Land Rights In West Malaysia: Triumph And Hope* [Read
excerpt]
by Noor Ashikin Hamid, Noraida Harun & Shariffah Nuridah Aishah Syed Nong
Mohamad**
CITATION TITLE SUBJECT [2010] 1 LNS 87 [HC] PP v. Wan Rushdi Wan Musa & Anor CRIMINAL LAW: Dangerous Drugs Act 1952 - Section 39B(1)(a) - Trafficking in 6.907kg of cannabis - Possession with mens rea - Whether accused had exclusive custody and control, and knowledge of drugs found in boot of his car - No break in chain of evidence, from recovery to analysis - Negotiation of price as direct evidence of trafficking - Inclusive definition of s. 2 - Unnecessary to invoke statutory presumption of trafficking
[2010] 1 LNS 217 [HC] Thian Kiong Ming v. Dr Francis Ting Siew Sieng & Anor CIVIL PROCEDURE: Parties - Third party notice - Application by orthopaedic surgeon/1st defendant to add another doctor as third party in negligence suit brought by patient/plaintiff - Indemnity and contribution sought - Whether affidavit evidence prima facie showed that third party's acts/omissions contributed to plaintiff's post-operative condition - Whether there was a sufficient nexus of culpability - Effect of 1st defendant's delay in applying to add third party - Running of time in third party proceedings and limitation
[2010] 1 LNS 836 [HC] PP v. Lee Yit Weng CRIMINAL LAW: Dangerous Drugs Act 1952 - Section 39B(1)(a) - Trafficking - Methamphetamine, 182.2g - Prima facie case, whether established at close of prosecution - Whether accused in actual possession of drugs - Whether accused had custody, control and knowledge of drugs - Drugs found in waist pouch on accused's body after a chase - Presumption of trafficking under s. 37(da)(xvi), whether applies - Evidence Act 1950, s. 8
CRIMINAL LAW: Dangerous Drugs Act 1952 - Section 39B(1)(a) - Methamphetamine, 182.2g - Chain of evidence - Serious doubt as to identity of substance - Whether substance seized was the drug examined by chemist - Discrepancy in colour of substance - Discrepancy in colour and sealing of plastic packets - Missing link in chain of evidence, whether explained by prosecution - Prima facie case, whether established at close of prosecution
CRIMINAL LAW: Dangerous Drugs Act 1952 - Section 39B(1)(a) - Trafficking - Methamphetamine, 182.2g - Charge - Possible alternate offence under Poisons Act 1952 - Methamphetamine listed under first schedule of Dangerous Drug Act 1952 and appendix of first schedule of Poisons Act 1952 - Whether court should amend charge to possession under s. 9 Poisons Act 1952 - Certainty as to weight and type of drug - Prerogative of public prosecutor under art. 145(3) Federal Constitution
CRIMINAL PROCEDURE: Charge - Alternate offences - Prerogative of public prosecutor under art. 145(3) Federal Constitution - Trafficking under s. 39B(1)(a) Dangerous Drugs Act 1952 - Possession under s. 9 Poisons Act 1952 - Methamphetamine listed under first schedule of Dangerous Drug Act 1952 and appendix of first schedule of Poisons Act 1952 - Whether court should amend charge to possession under s. 9 Poisons Act 1952 - Certainty as to weight and type of drug
[2010] 1 LNS 886 [HC] Jaya Asahak v. Munggau Lawai & Ors (No 2) CIVIL PROCEDURE:
NATIVE LAW & CUSTOM: Land dispute - Native customary rights - Dispute as to customary rights over land and ownership of bird-nest cave - Determining exact location of cave, consideration of expert evidence - Customary inheritance, proof of - Melanau-Penan ancestral lineage and kinship - Whether native customary rights over land can be transferred by deed of assignment - Whether native customary rights over bird-nest caves can be lost through abandonment - Jurisdiction of High Court - Land Code (Sarawak) (Cap 81), s. 5
LAND LAW: Customary land - Native customary rights - Dispute as to customary rights over land and ownership of bird-nest cave - Determining exact location of cave, consideration of expert evidence - Customary inheritance, proof of - Melanau-Penan ancestral lineage and kinship - Whether native customary rights over land can be transferred by deed of assignment - Whether native customary rights over bird-nest caves can be lost through abandonment - Jurisdiction of High Court - Land Code (Sarawak) (Cap 81), s. 5
[2010] 1 LNS 909 [HC] Kulai Edible Oils Refinery Sdn Bhd & Anor v. Lim Tian Huat & Ors (No 2) COMPANY LAW:
COMPANY LAW: Suit by company - Liquidator - Consent not given by liquidator - Leave of court not obtained - Whether consent of liquidator necessary - Whether leave of court ought to have been obtained - Residual power of director/shareholder to bring action, whether any - Action by company against receiver and manager, whether should be struck out
COURT
COURT OF APPEAL
Abdul Aziz Lela v. PP
Suriyadi Halim Omar, Hasan Lah, Ahmad Maarop JJCA
(Criminal Law; Evidence - Murder - Circumstantial evidence - DNA profiling of specimen - Poor handling of exhibits by investigating team - Whether fatal) [2011] 7 CLJ 1 [CA]Malaysian Refining Company Sdn Bhd v. Sumatec Engineering And Construction Sdn Bhd
Ramly Ali, Syed Ahmad Helmy, Zaharah Ibrahim JJCA
(Banking; Contract - Building contract - Unconditional on-demand performance bond, calling of - Whether unconscionable) [2011] 7 CLJ 21 [CA]HIGH COURT
Faber Union Sdn Bhd v. Tribunal Tuntutan Pembeli Rumah, Kementerian Perumahan Dan Kerajaan Tempatan & Ors
Aziah Ali J
(Administrative Law; Contract; Damages - Certiorari - Application to quash Tribunal's award - Illegality, irrationality, procedural improriety) [2011] 7 CLJ 37 [HC]Lembaga Pembangunan Industri Pembinaan Malaysia v. Konsortium JGC Corporation & Ors (Issued As Incorporated Partnership)
Hamid Sultan Abu Backer J
(Civil Procedure; Statutory Interpretation - Construction of statute - Section 34 Lembaga Pembangunan Industri Pembinaan Malaysia Act 1994) [2011] 7 CLJ 46 [HC]Rohani Ab Kadir v. Tenaga Nasional Bhd
Noraini Abdul Rahman JC
(Evidence; Tort - Documentary evidence - Unstamped document of title - Whether capable of proving ownership) [2011] 7 CLJ 63 [HC]Suhani Mat Daud v. PP
Mohd Amin Firdaus Abdullah JC
(Criminal Law; Criminal Procedure - Criminal breach of trust - Advocate and solicitor - Misappropriation of stakeholder monies - Sentencing) [2011] 7 CLJ 73 [HC]Trolli Master Sdn Bhd v. RHB Bank Bhd
Hasnah Mohammed Hashim JC
(Banking; Evidence; Tort - Conversion - Forged cheques - Whether plaintiff contributed to forgery) [2011] 7 CLJ 105 [HC]SUBJECT INDEX
ADMINISTRATIVE LAW
Judicial review - Certiorari - Award - Application for judicial review to quash award - Late delivery of vacant possession - Tribunal's finding that cause of action arose from sale and purchase agreements - Whether tribunal erred in law - Rules of the High Court 1980, O. 53
Faber Union Sdn Bhd v. Tribunal Tuntutan Pembeli Rumah, Kementerian Perumahan Dan Kerajaan Tempatan & Ors
(Aziah Ali J) [2011] 7 CLJ 37 [HC]BANKING
Cheques - Forged cheque - Whether cheque issued under plaintiff's signature forged - Whether defendant had right to debit from plaintiff's account - Whether plaintiff was negligent in handling cheque books - Whether plaintiff contributed to the forgery
Trolli Master Sdn Bhd v. RHB Bank Bhd
(Hasnah Mohammed Hashim JC) [2011] 7 CLJ 105 [HC]Performance bonds - Beneficiary's right - Call on bond - Unconditional on-demand bond - Whether bank obliged to pay once a valid demand is made by beneficiary - Whether unconscionable to call on performance bond - Whether ground for allowing restraining order - Whether unconscionable act proved on facts
Malaysian Refining Company Sdn Bhd v. Sumatec Engineering And Construction Sdn Bhd
(Ramly Ali, Syed Ahmad Helmy, Zaharah Ibrahim JJCA) [2011] 7 CLJ 21 [CA]CIVIL PROCEDURE
Disposal of action without trial - Disposal of case on point of law - Plaintiff claims for levy - Whether levy could be imposed on construction works outside Malaysia - Whether construction works under s. 34 Lembaga Pembangunan Industri Pembinaan Malaysia Act 1994 includes non-construction works - Whether words under said Act to be given literal meaning
Lembaga Pembangunan Industri Pembinaan Malaysia v. Konsortium JGC Corporation & Ors (Issued As Incorporated Partnership)
(Hamid Sultan Abu Backer J) [2011] 7 CLJ 46 [HC]CONTRACT
Building contract - Performance bond - Whether unconscionable to call on performance bond - Whether ground for allowing restraining order
Malaysian Refining Company Sdn Bhd v. Sumatec Engineering And Construction Sdn Bhd
(Ramly Ali, Syed Ahmad Helmy, Zaharah Ibrahim JJCA) [2011] 7 CLJ 21 [CA]Guarantee - Bank guarantee - Unconditional on-demand performance bond - Whether bank obliged to pay once a valid demand is made by beneficiary - Whether unconscionable to call on performance bond - Whether ground for allowing restraining order - Whether unconscionable act proved on facts
Malaysian Refining Company Sdn Bhd v. Sumatec Engineering And Construction Sdn Bhd
(Ramly Ali, Syed Ahmad Helmy, Zaharah Ibrahim JJCA) [2011] 7 CLJ 21 [CA]Performance bond - Beneficiary's right - Call on bond - Unconditional on-demand bond - Whether bank obliged to pay once a valid demand is made by beneficiary - Whether unconscionable to call on performance bond - Whether ground for allowing restraining order - Whether unconscionable act proved on facts
Malaysian Refining Company Sdn Bhd v. Sumatec Engineering And Construction Sdn Bhd
(Ramly Ali, Syed Ahmad Helmy, Zaharah Ibrahim JJCA) [2011] 7 CLJ 21 [CA]Sale and purchase of property - Sale and purchase agreements - Whether tribunal's jurisdiction confined to agreements - Brochures and oral representations - Whether reasonable for respondents to rely on applicant's representations - Letter of applicant - Whether applicant's notification on delay vitiates delivery period stipulated in agreements
Faber Union Sdn Bhd v. Tribunal Tuntutan Pembeli Rumah, Kementerian Perumahan Dan Kerajaan Tempatan & Ors
(Aziah Ali J) [2011] 7 CLJ 37 [HC]CRIMINAL LAW
Penal Code - Section 302 - Murder - Deceased assaulted and burned to death - Circumstantial evidence - Proof by way of DNA profiling of specimen - Poor handling of exhibits and specimen by investigating team - Uncertainty as to who packed and marked exhibits - Whether integrity of specimen and exhibits fatally compromised - Whether there was a break in the chain of evidence - Whether no prima facie case made out against appellant
Abdul Aziz Lela v. PP
(Suriyadi Halim Omar, Hasan Lah, Ahmad Maarop JJCA) [2011] 7 CLJ 1 [CA]Penal Code - Section 405 - Criminal breach of trust - Whether dishonest misappropriation of money - Solicitor misappropriating stakeholder monies held under a conveyancing transaction - Whether solicitor had dishonestly misappropriated or converted the money to her own use - Whether solicitor committed act of dishonesty - Whether solicitor's intention to make restitution as soon as possible an acceptable defence - Whether temporary misappropriation of money amounts to criminal breach of trust - Whether elements of criminal breach of trust made out - Whether presumption under s. 409B of Penal Code applicable
Suhani Mat Daud v. PP
(Mohd Amin Firdaus Abdullah JC) [2011] 7 CLJ 73 [HC]CRIMINAL PROCEDURE
Sentencing - Criminal breach of trust - Solicitor misappropriating stakeholder monies held under a conveyancing transaction - Six year custodial sentence imposed - Public interest and deterrence elements considered
Suhani Mat Daud v. PP
(Mohd Amin Firdaus Abdullah JC) [2011] 7 CLJ 73 [HC]DAMAGES
Assessment - Date of assessment of damages - Amendment of commencement date - Calculation of damages payable - Whether tribunal erred in decision - Whether time began to run from date of payment of deposit - Whether there was illegality, irrationality or procedural impropriety in granting award
Faber Union Sdn Bhd v. Tribunal Tuntutan Pembeli Rumah, Kementerian Perumahan Dan Kerajaan Tempatan & Ors
(Aziah Ali J) [2011] 7 CLJ 37 [HC]EVIDENCE
Circumstantial evidence - Murder - Chain of evidence - DNA profiling of blood samples and cigarette butts - Swabs of specimen not properly collected and preserved - No evidence adduced as to who packed, restored and sent butts to chemist - Whether there was a break in the chain of evidence - Whether integrity of specimen and exhibits fatally compromised - Whether no prima facie case made out against appellant
Abdul Aziz Lela v. PP
(Suriyadi Halim Omar, Hasan Lah, Ahmad Maarop JJCA) [2011] 7 CLJ 1 [CA]Documentary evidence - Admissibility of - Unstamped document of title - Proof of ownership - Dispute regarding admissibility of Borang 14A produced by plaintiff - Whether unstamped Borang 14A admissible as proof of plaintiff's ownership
Rohani Ab Kadir v. Tenaga Nasional Bhd
(Noraini Abdul Rahman JC) [2011] 7 CLJ 63 [HC]Expert evidence - Handwriting - Whether expert qualified to examine Chinese handwriting
Trolli Master Sdn Bhd v. RHB Bank Bhd
(Hasnah Mohammed Hashim JC) [2011] 7 CLJ 105 [HC]STATUTORY INTERPRETATION
Construction of statutes - Rules of construction - Plaintiff claims for levy for offshore and non-construction works by defendants - Whether allowed under Lembaga Pembangunan Industri Pembinaan Malaysia Act 1994 - Whether Act encompasses extra territorial jurisdiction - Whether offshore and non-construction works fall within ambit of the Act - Words used in Act were clear - Whether words to be given its literal meaning - Whether Act implicitly recognizes non-construction works not subject to levy - Whether purposive approach advocated in s. 17A Interpretation Acts 1948 and 1967 relevant
Lembaga Pembangunan Industri Pembinaan Malaysia v. Konsortium JGC Corporation & Ors (Issued As Incorporated Partnership)
(Hamid Sultan Abu Backer J) [2011] 7 CLJ 46 [HC]TORT
Conversion - Cheque - Whether cheque issued under plaintiff's signature forged - Whether defendant had right to debit from plaintiff's account - Whether defendant liable to make good the loss - Whether there was element of careless conduct by defendant - Whether plaintiff contributed to the forgery - Whether plaintiff demonstrated reasonable care taken to prevent forgery - Bills of Exchange Act 1949, s. 73A
Trolli Master Sdn Bhd v. RHB Bank Bhd
(Hasnah Mohammed Hashim JC) [2011] 7 CLJ 105 [HC]Damages - Assessments - Negligence - Quantum of damages - Damages caused by fire - Loss of profit - Loss of fixtures and fittings - Rental claim for alternative premises - Cost of rebuilding house - Claim of interest on damages - Whether plaintiff entitled to damages for losses suffered
Rohani Ab Kadir v. Tenaga Nasional Bhd
(Noraini Abdul Rahman JC) [2011] 7 CLJ 63 [HC]Negligence - Professional negligence - Electrical installation work damaging cable - Professional negligence - Defect in temporary connection made by defendant's technician - Whether defendant liable for negligence
Rohani Ab Kadir v. Tenaga Nasional Bhd
(Noraini Abdul Rahman JC) [2011] 7 CLJ 63 [HC]
CASE OF THE WEEK
VICTORIA JAYASEELE MARTIN v. MAJLIS AGAMA ISLAM WILAYAH PERSEKUTUAN & ANOR
CONSTITUTIONAL LAW: Courts - Syariah Court - Rights of appearance for counsel - Application by non-Muslim Advocate & Solicitor to be admitted as Peguam Syarie in Wilayah Persekutuan - Application denied by Jawatankuasa Peguam Syarie - Whether r. 10 of Peguam Syarie Rules 1993 mandating admission of Muslims only is ultra vires - Whether "Admission" is at the discretion of the Majlis - Administration of Islamic Law (Federal Territories) Act 1993 ss. 59(1), (2)
CONSTITUTIONAL LAW: Fundamental liberties - Equality before the law - Rejection of non-Muslim Advocate & Solicitor's application to be admitted as Peguam Syarie - Whether a contravention of art. 8 of Federal Constitution
CONSTITUTIONAL LAW: Fundamental liberties - Freedom of speech, assembly and association - Rejection of non-Muslim Advocate & Solicitor's application to be admitted as Peguam Syarie - Whether a contravention of art. 10 of Federal Constitution
CONSTITUTIONAL LAW: Fundamental liberties - Liberty of person - Rejection of non-Muslim Advocate & Solicitor's application to be admitted as Peguam Syarie - Whether a contravention of art. 5 of Federal Constitution
LEGAL PROFESSION: Practice of law - Right of audience - Application by non-Muslim Advocate & Solicitor to be admitted as Peguam Syarie - Application denied by Jawatankuasa Peguam Syarie - Whether r. 10 of Peguam Syarie Rules 1993 mandating admission of Muslims only is ultra vires - Whether "Admission" is at the discretion of the Majlis - Administration of Islamic Law (Federal Territories) Act 1993 ss. 59(1), (2)
ISLAMIC LAW: Syariah Court - Rights of appearance for counsel - Application by non-Muslim Advocate & Solicitor to be admitted as Peguam Syarie in Wilayah Persekutuan - Application denied by Jawatankuasa Peguam Syarie - Whether r. 10 of Peguam Syarie Rules 1993 mandating admission of Muslims only is ultra vires - Whether "Admission" is at the discretion of the Majlis - Administration of Islamic Law (Federal Territories) Act 1993 ss. 59(1), (2)
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