Bulletin_38

CLJ Bulletin, Issue 2010, Vol 38

1 October 2010

CLJ Law MALAYSIA

http://www.cljlaw.com

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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 5) 2010
	c) CLJ Volume 7 (Part 6) 2010

1. Legislation Highlights

PU(A)

NUMBER TITLE DATE COMING INTO FORCE
PRINCIPAL ACT NO

PU(A) 297/2010 Customs (Values) (Palm Oil) (No 35) Order 2010 30 August 2010 ACT 235

PU(A) 298/2010 Customs (Values) (Palm Kernel) (No 9) Order 2010 1 September 2010 ACT 235

PU(A) 299/2010 Sales Tax (Exemption) (Amendment) (No 4) Order 2010 1 September 2010 ACT 64

PU(A) 300/2010 Customs Duties (Exemption) (Amendment) (No 4) Order 2010 1 September 2010 ACT 235

PU(A) 301/2010 Local Speed Limit (Federal Roads) (Specified Time Prohibition) (No 2) Order 2010 1 September 2010 ACT 333

PU(A) 303/2010 Employment (Part-Time Employees) Regulations 2010 2 September 2010 ACT 265

PU(B)

NUMBER TITLE DATE COMING INTO FORCE
PRINCIPAL ACT NO

PU(B) 399/2010 Reservation Of Land For Public Purpose - Federal Territory Of Kuala Lumpur: Town - Kuala Lumpur 6 September 2010 ACT 56/1965

PU(B) 400/2010 Reservation Of Land For Public Purpose - Federal Territory Of Kuala Lumpur: Mukim - Kuala Lumpur 6 September 2010 ACT 56/1965

PU(B) 401/2010 Reservation Of Land For Public Purpose - Federal Territory Of Kuala Lumpur: Mukim - Kuala Lumpur 6 September 2010 ACT 56/1965

PU(B) 402/2010 Notice Under Subsection 70(2) 9 September 2010 ACT 333

PU(B) 403/2010 Appointment Of Gaming Expert 16 September 2010 ACT 289

2. Articles

a) Legal Network Series Articles

1. Alternative Dispute Resolution: An English Viewpoint ^{[Read
excerpt]}
By Lord Phillips Of Worth Matravers*

b) CLJ Articles

1. Towards A Fairer And Effective Administration Of The Criminal Justice System In Malaysia** ^{[Read
excerpt]}
By Tan Sri Dato' Zulkefli Ahmad Makinudin*

3. Latest Cases

a) Legal Network Series

CITATION TITLE SUBJECT

[2010] 1 LNS 418 [HC] Tay Hup Lian v. Histyle Sdn & Anor; Lim Hock Bee @ Lim Ser Hai & Ors (Intervener)

CONTRACT: Sale and purchase of property - Stakeholder money - Claim for - Retention Sum - Right to retention sum assigned by developer to plaintiff - Deed of reassignment - Whether an equitable assignment - Whether deed of reassignment valid under s. 4(3) Civil Law Act 1956 - Consent order freezing retention sum - Whether plaintiff and developer bound or estopped by - Whether consent order binding on stakeholders - Whether plaintiff acting as developer's nominee - Whether retention sum held by solicitors as stakeholders - Terms of release, whether met

LAND LAW: Sale of property - Stakeholder - Retention Sum - Claim for Retention Sum - Right to retention sum assigned by developer to plaintiff - Deed of reassignment - Whether an equitable assignment - Whether deed of reassignment valid under s. 4(3) Civil Law Act 1956 - Consent order freezing retention sum - Whether plaintiff and developer bound or estopped by - Whether consent order binding on stakeholders - Whether plaintiff acting as developer's nominee - Whether retention sum held by solicitors as stakeholders - Terms of release, whether met

[2010] 1 LNS 419 [HC] EON Bank Berhad v. Mohd Yunus Alias & Anor (No 2)

CONTRACT: Breach - Loan agreement - Borrower/company defaulted on repayments for credit facilities - Plaintiff/bank obtained default judgment obtained against borrower - Action against guarantors struck out - Plaintiff issued new letters of demand and filed new action against guarantors - Submission of no case to answer by guarantors - Whether plaintiff's action time-barred - Whether plaintiff obliged to realise securities before filing action against guarantors - Whether plaintiff could vary interest charged without notice

CIVIL PROCEDURE: Trial - Submission of no case to answer - Whether counsel for defendants put to election - Effect of submission - Whether all evidence led by plaintiff assumed to be true - Whether court only to consider plaintiff's case - Whether defences not considered - Whether plaintiff's claim established on balance of probabilities

LIMITATION: Accrual of cause of action - On-demand guarantee - Action against guarantors to recover borrower's debt - Whether time runs from date of borrower's default - Whether time only runs from guarantors' failure to pay upon demand - Distinction between demand on borrower and on guarantor - Principal-debtor clause - Whether separate and specific demand on guarantor essential - Limitation Act 1953, s. 6

BANKING: Securities for advances - Guarantee - Guarantors - Liability of - Limitation - Accrual of cause of action - Running of time - Whether from default of borrower - Whether from guarantors' failure to pay on demand - On-demand guarantee - Distinction between demand on borrower and on guarantor - Principal-debtor clause - Whether separate and specific demand on guarantor essential - Whether bank obliged to realise securities given by borrower before moving against guarantors - Debentures, fixed and floating charge - Contracts Act 1950, s. 92 - Whether bank could vary interest charged without notice - Certificate of indebtedness as proof of debt - Errors in - Changes in BLR and proof of publication

[2010] 1 LNS 420 [HC] PP v. Pathmanathan Mani

CRIMINAL LAW: Dangerous Drugs Act 1952 - Section 12(3) - Possession of dangerous drug - 6.28g heroin and 1.45g monoacetylmorphines - Appeal against conviction - Adverse criticisms made by trial judge against accused for not calling a witness - Whether amounted to serious misdirection or substantial miscarriage of justice - Whether accused prejudiced - Whether conviction safe

EVIDENCE: Adverse inference - Witness not called by accused - Adverse criticisms made by trial judge - Whether offends principle in Goh Ah Yew v. PP - Evidence Act 1950, s. 114(g) - Whether amounted to serious misdirection or substantial miscarriage of justice - Whether accused prejudiced - Whether conviction safe - Possession of dangerous drugs under s. 12(3) Dangerous Drugs Act 1952

[2010] 1 LNS 422 [HC] Bax Global (Malaysia) Sdn Bhd v. Sukhdev Singh Pritam Singh & Anor

LABOUR LAW: Employment - Redundancy - Constructive dismissal - Award/decision of Industrial Court that employee was constructively dismissed without just cause and excuse - Application by company for certiorari to quash Award - Whether employee was actually made redundant by company - Redundancy stated as reason for termination - Whether Industrial Court must fully consider redundancy - Whether failure to so consider amounted to error of law going to jurisdiction - Evidence of company's reorganisation - Whether employee rejected offer of alternative job

LABOUR LAW: Industrial Court - Award - Proceedings - Chairman who handed down Award did not hear case - Merely relied on predecessor's notes of evidence - Whether case should have been heard denovo - Whether partly-heard case may generally continue to be heard by another Chairman - Speedy disposal of disputes - Whether parties prejudiced - Delay, hardship, costs - Industrial Relations Act 1967, s. 23(6)

LABOUR LAW: Industrial Court - Award - Compensation - Backwages - Period of service - Whether employee found gainful employment after his dismissal - Principles in assessing quantum of backwages

[2010] 1 LNS 423 [HC] Rothmans Of Pall Mall (Malaysia) Berhad v. Suhaidi Samat

TORT: Negligence - Motor accident - Liability - Collision between a motorcar and plaintiff's motorcycle - Defendant found liable as 'owner' of motorcar for plaintiff's injuries - Defendant appealing against decision of sessions judge - Whether defendant was registered owner of motorcar - RTD search - Whether conclusive - Whether presumption of ownership rebutted - Whether title and ownership of motorcar had passed from defendant to third party purchaser - Whether defendant liable pending transfer of registration - Whether sessions judge erred - Pleadings - Vicarious liability

EVIDENCE: Documentary evidence - Civil cases - Admissibility - Medical reports - Maker not called - Whether medical report properly admitted under s. 73A(2) Evidence Act 1950 - Undue delay or expense - Whether maker could and should have been called - Negligence - Motor accident - Personal injuries - Proof

DAMAGES: Action for - General damages - Personal injuries - Injury not pleaded - Whether damages may be awarded - Injury to right ear

CITATION	TITLE	SUBJECT
[2010] 1 LNS 418 [HC]	Tay Hup Lian v. Histyle Sdn & Anor; Lim Hock Bee @ Lim Ser Hai & Ors (Intervener)	CONTRACT: Sale and purchase of property - Stakeholder money - Claim for - Retention Sum - Right to retention sum assigned by developer to plaintiff - Deed of reassignment - Whether an equitable assignment - Whether deed of reassignment valid under s. 4(3) Civil Law Act 1956 - Consent order freezing retention sum - Whether plaintiff and developer bound or estopped by - Whether consent order binding on stakeholders - Whether plaintiff acting as developer's nominee - Whether retention sum held by solicitors as stakeholders - Terms of release, whether met LAND LAW: Sale of property - Stakeholder - Retention Sum - Claim for Retention Sum - Right to retention sum assigned by developer to plaintiff - Deed of reassignment - Whether an equitable assignment - Whether deed of reassignment valid under s. 4(3) Civil Law Act 1956 - Consent order freezing retention sum - Whether plaintiff and developer bound or estopped by - Whether consent order binding on stakeholders - Whether plaintiff acting as developer's nominee - Whether retention sum held by solicitors as stakeholders - Terms of release, whether met
[2010] 1 LNS 419 [HC]	EON Bank Berhad v. Mohd Yunus Alias & Anor (No 2)	CONTRACT: Breach - Loan agreement - Borrower/company defaulted on repayments for credit facilities - Plaintiff/bank obtained default judgment obtained against borrower - Action against guarantors struck out - Plaintiff issued new letters of demand and filed new action against guarantors - Submission of no case to answer by guarantors - Whether plaintiff's action time-barred - Whether plaintiff obliged to realise securities before filing action against guarantors - Whether plaintiff could vary interest charged without notice CIVIL PROCEDURE: Trial - Submission of no case to answer - Whether counsel for defendants put to election - Effect of submission - Whether all evidence led by plaintiff assumed to be true - Whether court only to consider plaintiff's case - Whether defences not considered - Whether plaintiff's claim established on balance of probabilities LIMITATION: Accrual of cause of action - On-demand guarantee - Action against guarantors to recover borrower's debt - Whether time runs from date of borrower's default - Whether time only runs from guarantors' failure to pay upon demand - Distinction between demand on borrower and on guarantor - Principal-debtor clause - Whether separate and specific demand on guarantor essential - Limitation Act 1953, s. 6 BANKING: Securities for advances - Guarantee - Guarantors - Liability of - Limitation - Accrual of cause of action - Running of time - Whether from default of borrower - Whether from guarantors' failure to pay on demand - On-demand guarantee - Distinction between demand on borrower and on guarantor - Principal-debtor clause - Whether separate and specific demand on guarantor essential - Whether bank obliged to realise securities given by borrower before moving against guarantors - Debentures, fixed and floating charge - Contracts Act 1950, s. 92 - Whether bank could vary interest charged without notice - Certificate of indebtedness as proof of debt - Errors in - Changes in BLR and proof of publication
[2010] 1 LNS 420 [HC]	PP v. Pathmanathan Mani	CRIMINAL LAW: Dangerous Drugs Act 1952 - Section 12(3) - Possession of dangerous drug - 6.28g heroin and 1.45g monoacetylmorphines - Appeal against conviction - Adverse criticisms made by trial judge against accused for not calling a witness - Whether amounted to serious misdirection or substantial miscarriage of justice - Whether accused prejudiced - Whether conviction safe EVIDENCE: Adverse inference - Witness not called by accused - Adverse criticisms made by trial judge - Whether offends principle in Goh Ah Yew v. PP - Evidence Act 1950, s. 114(g) - Whether amounted to serious misdirection or substantial miscarriage of justice - Whether accused prejudiced - Whether conviction safe - Possession of dangerous drugs under s. 12(3) Dangerous Drugs Act 1952
[2010] 1 LNS 422 [HC]	Bax Global (Malaysia) Sdn Bhd v. Sukhdev Singh Pritam Singh & Anor	LABOUR LAW: Employment - Redundancy - Constructive dismissal - Award/decision of Industrial Court that employee was constructively dismissed without just cause and excuse - Application by company for certiorari to quash Award - Whether employee was actually made redundant by company - Redundancy stated as reason for termination - Whether Industrial Court must fully consider redundancy - Whether failure to so consider amounted to error of law going to jurisdiction - Evidence of company's reorganisation - Whether employee rejected offer of alternative job LABOUR LAW: Industrial Court - Award - Proceedings - Chairman who handed down Award did not hear case - Merely relied on predecessor's notes of evidence - Whether case should have been heard denovo - Whether partly-heard case may generally continue to be heard by another Chairman - Speedy disposal of disputes - Whether parties prejudiced - Delay, hardship, costs - Industrial Relations Act 1967, s. 23(6) LABOUR LAW: Industrial Court - Award - Compensation - Backwages - Period of service - Whether employee found gainful employment after his dismissal - Principles in assessing quantum of backwages
[2010] 1 LNS 423 [HC]	Rothmans Of Pall Mall (Malaysia) Berhad v. Suhaidi Samat	TORT: Negligence - Motor accident - Liability - Collision between a motorcar and plaintiff's motorcycle - Defendant found liable as 'owner' of motorcar for plaintiff's injuries - Defendant appealing against decision of sessions judge - Whether defendant was registered owner of motorcar - RTD search - Whether conclusive - Whether presumption of ownership rebutted - Whether title and ownership of motorcar had passed from defendant to third party purchaser - Whether defendant liable pending transfer of registration - Whether sessions judge erred - Pleadings - Vicarious liability EVIDENCE: Documentary evidence - Civil cases - Admissibility - Medical reports - Maker not called - Whether medical report properly admitted under s. 73A(2) Evidence Act 1950 - Undue delay or expense - Whether maker could and should have been called - Negligence - Motor accident - Personal injuries - Proof DAMAGES: Action for - General damages - Personal injuries - Injury not pleaded - Whether damages may be awarded - Injury to right ear

b. CLJ Volume 7 (Part 5) 2010

COURT

Nor Azahar Zainol v. Pentadbir Tanah Daerah Langkawi
(Judgment - Consent judgment) [2010] 7 CLJ 635

S Vigneswaran M Sanasee v. Maju Institute Of Educational Development (MIED)
(Civil Procedure - Affidavits - Admissibility) [2010] 7 CLJ 640

SUBJECT INDEX

CIVIL PROCEDURE

Affidavits - Admissibility - Striking out or expunging affidavits and contents contained therein - Whether certain parts of affidavit to be expunged - Whether contents of affidavit scandalous, irrelevant or otherwise oppressive - Defendant replying to affidavits without reserving right to object to hearsay, subjudicial and prejudicial evidence - Whether Defendant waived right to expunge - Whether non-compliance of affidavit with rules of court a mere technicality - Rules of the High Court 1980, O. 41 r. 6
S Vigneswaran M Sanasee v. Maju Institute Of Educational Development (MIED)
(Mah Weng Kwai JC) [2010] 7 CLJ 640 [HC]

Affidavits - Affidavit-in-support affirmed before filing of originating motion - Whether admissible - Rules of the High Court 1980, O. 41 r. 1
S Vigneswaran M Sanasee v. Maju Institute Of Educational Development (MIED)
(Mah Weng Kwai JC) [2010] 7 CLJ 640 [HC]

Affidavit - Contents - Whether contents of affidavit hearsay - Whether averments within deponent’s own knowledge - Whether affidavits may contain hearsay evidence - Evidence Act 1950 s. 2
S Vigneswaran M Sanasee v. Maju Institute Of Educational Development (MIED)
(Mah Weng Kwai JC) [2010] 7 CLJ 640 [HC]

Costs - Order on costs - Review of - Whether trial judge has discretion in reviewing order on costs - Whether exercised judiciously and fairly - Whether circumstances warranted depriving first and second defendant of costs
Dr Bernadine Malini Martin v. MPH Magazine Sdn Bhd & Ors And Another Appeal
(Zaleha Zahari, KN Segara & Ramly Ali JJCA) [2010] 7 CLJ 525 [CA]

Execution - Judgment debt - Interest - Plaintiffs claiming interest for a period of more than six years in respect of the judgment debt - Whether contravening s. 6(3) of the Limitation Act 1953 - Whether court has power to amend prohibitory order and the writ of seizure and sale and limit the interest to six years - Whether necessary to set aside prohibitory order
Bank Bumiputra Malaysia Bhd & Ors v. Safuan Holdings Sdn Bhd & Ors; Allied Bank Malaysia Bhd (Intervener)
(Nallini Pathmanathan JC) [2010] 7 CLJ 621 [HC]

Execution - Prohibitory order - Whether prohibitory order should be set aside - Whether an equitable interest arose in favour of purchaser - Whether a valid and equitable charge created in favour of applicant-intervenor - Whether purchaser acquired rights and property in Lot 363A on the date of execution of the sale and purchase agreement - Whether second defendant divested completely of his beneficial ownership in Lot 363A and beneficial ownership of the land
Bank Bumiputra Malaysia Bhd & Ors v. Safuan Holdings Sdn Bhd & Ors; Allied Bank Malaysia Bhd (Intervener)
(Nallini Pathmanathan JC) [2010] 7 CLJ 621 [HC]

Functus officio - Summons in chambers application - Whether directly related to a judgment recorded and to give effect to it - Whether contravened consent judgment entered - Whether court had jurisdiction to hear application
Nor Azahar Zainol v. Pentadbir Tanah Daerah Langkawi
(Ho Mooi Ching JC) [2010] 7 CLJ 635 [HC]

Judgment - Consent judgment - Whether there was provision made for payment of premium for land - Whether payment made in contravention of binding judgment entered
Nor Azahar Zainol v. Pentadbir Tanah Daerah Langkawi
(Ho Mooi Ching JC) [2010] 7 CLJ 635 [HC]

EVIDENCE

Affidavit - Admissibility - Whether matters deposed to are scandalous, irrelevant or oppressive - Whether affidavit ought to be expunged - Rules of High Court 1980, O. 41 r. 6
S Vigneswaran M Sanasee v. Maju Institute Of Educational Development (MIED)
(Mah Weng Kwai JC) [2010] 7 CLJ 640 [HC]

Affidavit - Contents of affidavit - Whether averments within deponent’s own knowledge - Whether sources of information indicated - Rules of High Court 1980, O. 41 r. 5
S Vigneswaran M Sanasee v. Maju Institute Of Educational Development (MIED)
(Mah Weng Kwai JC) [2010] 7 CLJ 640 [HC]

INSURANCE

Motor insurance - Liability - Insurer’s liability to satisfy judgment - Whether respondent liable under terms of insurance policy to satisfy judgment sum - Road Transport Act 1987, s. 96
Mary Colete John v. South East Asia Insurance Bhd
(Zaleha Zahari, Abdul Malik Ishak & Abu Samah Nordin JJCA) [2010] 7 CLJ 538 [CA]

SALE OF GOODS

Implied conditions - Implied undertaking as to title - That seller has right to sell goods - Breach of implied undertaking - Seller unable to pass good title to buyer - Whether purchaser could rescind contract - Whether seller entitled to full refund of purchase price paid - Whether there was total failure of consideration - Sale of Goods Act 1957, s. 14(a) - Claim by financier/purchaser against car dealer/seller after car was seized by police as stolen vehicle
Affin-ACF Finance Bhd v. Phang Ngan Heong
(Amelia Tee Hong Geok JC) [2010] 7 CLJ 592 [HC]

Motor car - Contract of sale - Car purchased by financier from dealer and let out to hirer - Car seized by police as stolen vehicle two years after sale - Whether title to car had passed from dealer to financier at point of sale - Whether dealer had good title to pass - Whether registration of car in hirer’s name meant good title had passed to financier - Whether ownership of car must remain with financier until end of hire purchase period - Whether financier could recover purchase money from dealer for total failure of consideration - Whether sale contract between dealer and financier superseded by hire purchase agreement between financier and hirer
Affin-ACF Finance Bhd v. Phang Ngan Heong
(Amelia Tee Hong Geok JC) [2010] 7 CLJ 592 [HC]

TORT

Defamation - Publication - Photograph of plaintiff as bride published in an advertisement in magazine without her consent - Application of correct test of 'ordinary reasonable fair minded reader' - Whether impugned publication derogatory of plaintiff
Dr Bernadine Malini Martin v. MPH Magazine Sdn Bhd & Ors And Another Appeal
(Zaleha Zahari, KN Segara & Ramly Ali JJCA) [2010] 7 CLJ 525 [CA]

Vicarious liability - Road accident - Appellant suffered injuries in the course of travelling to bride's house in insured’s motor car - Whether appellant was being carried in insured vehicle as a mere passenger - Whether appellant being carried in vehicle by reason of or in pursuance of a contract of employment with the insured
Mary Colete John v. South East Asia Insurance Bhd
(Zaleha Zahari, Abdul Malik Ishak & Abu Samah Nordin JJCA) [2010] 7 CLJ 538 [CA]

WORDS & PHRASES

"By reason of or in pursuance of a contract of employment" - "Employment" - Section 11 of insurance coverage - Road Traffic Ordinance 1958, s. 75(1)(b)(ii)
Mary Colete John v. South East Asia Insurance Bhd
(Zaleha Zahari, Abdul Malik Ishak & Abu Samah Nordin JJCA) [2010] 7 CLJ 538 [CA]

INDEKS PERKARA

PROSEDUR JENAYAH

Perlucuthakan - Perlucuthakan kenderaan - Sama ada pihak yang sepatutnya membuat tuntutan adalah penyewa atau perayu - Sama ada keseluruhan harga pembelian dan pembayaran balik pinjaman berpunca daripada sumber yang sah - Akta Dadah Berbahaya (Perlucuthakan Harta) 1988, ss. 32(3), 35
Amfinance Bhd lwn. PP
(Mohd Zawawi Salleh H) [2010] 7 CLJ 607 [HC]

c. CLJ Volume 7 (Part 6) 2010

COURT

L Rajanderan R Letchumanan v. Timbalan Menteri Dalam Negeri, Malaysia & Ors
(Detention order - Judicial review - Legality of arrest at investigation stage) [2010] 7 CLJ 653

COURT OF APPEAL

Ambank (M) Bhd v. Abdul Aziz Hassan & Ors
(Limitation - Whether time runs from date of accrual or discovery of cause of action) [2010] 7 CLJ 663

Holiday Villages Of Malaysia Sdn Bhd v. Menteri Sumber Manusia & Anor
(Trade union - Recognition - Judicial review of decision to recognize) [2010] 7 CLJ 683

Muklis Jafar lwn. PP
(Mengedar dadah berbahaya - Sama ada pendakwaan harus memanggil semua saksi dalam rantaian pergerakan dadah) [2010] 7 CLJ 696

Ruslan Baharin Industries Sdn Bhd & Ors v. Kerajaan Malaysia
(Sales tax - Summary judgment - Whether not a plain and obvious case) [2010] 7 CLJ 713

HIGH COURT

Chua Ek Leng v. Tokio Marine Insurans (Malaysia) Bhd
(Motor insurance - Exclusion clause - Applicability) [2010] 7 CLJ 730

Ncfm Enterprise Sdn Bhd v. Kejuruteraan Rasshin Sdn Bhd & Ors
(Building contract - Back to back payment - Whether unconscionable not to pay sub-contractor) [2010] 7 CLJ 751

Razi Amnin v. PP
(Rape - Appeal against conviction and sentence) [2010] 7 CLJ 771

SUBJECT INDEX

ADMINISTRATIVE LAW

Judicial review - Application for - Certiorari - Whether issue of "procedural impropriety" applicable here - Whether procedural steps taken by 1st respondent in coming to decision to accord recognition to 2nd respondent to represent all the appellant's employees, other than those employed in the managerial, executive, confidential and security capacity, not in compliance with legislative instruments expressly provided under the relevant laws - Whether 1st respondent acted within scope of powers conferred upon him under Industrial Relations Act 1967 and the relevant regulations
Holiday Villages Of Malaysia Sdn Bhd v. Menteri Sumber Manusia & Anor
(Suriyadi Halim Omar, Wan Adnan Muhamad & Ramly Ali JJCA) [2010] 7 CLJ 683 [CA]

Judicial review - Detention order - Detention order under Dangerous Drugs (Special Preventive Measures) Act 1985 - Legality or propriety of arrest or detention at investigation stage - Whether a valid ground for judicial review
L Rajanderan R Letchumanan v. Timbalan Menteri Dalam Negeri, Malaysia & Ors
(Zaki Tun Azmi CJ, Zulkefli Makinudin & Abdull Hamid Embong FCJJ) [2010] 7 CLJ 653 [FC]

CIVIL PROCEDURE

Appeal - Summary judgment - Interference by appellate court - Appeal as a rehearing - High Court order set aside and matter sent back to the Sessions Court for full trial
Ruslan Baharin Industries Sdn Bhd & Ors v. Kerajaan Malaysia
(Suriyadi Halim Omar, Zainun Ali & Wan Adnan Muhamad JJCA) [2010] 7 CLJ 713 [CA]

Summary judgment - Whether triable issues raised in appeal - Sum prayed for in the writ under scrutiny and required clarification - Whether labour charges could retrospectively be introduced for a period prior to 2000 - If taxpayer already duty bound to collect sales tax on the pre-2000 labour charges why the need to promulgate s. 7(3) of the Sales Tax Act 1972 - Whether there was no duty before, hence the need to legislate that requirement - Effect of new s. 7(3) ought to be canvassed fully in open court having regard to the confusing facts and complexity of the problem - Revenue gave no reasons why it rejected appellants' assertion of error in tax returns - Not a plain and obvious case
Ruslan Baharin Industries Sdn Bhd & Ors v. Kerajaan Malaysia
(Suriyadi Halim Omar, Zainun Ali & Wan Adnan Muhamad JJCA) [2010] 7 CLJ 713 [CA]

CONTRACT

Breach - Building contract - No payment for work done - NCFM's payment back to back with main contract - Once Rasshin received payment from the Ministry, must effect payment to NCFM - Whether NCFM also entitled to claim for the earthworks for SMK Medamit
Ncfm Enterprise Sdn Bhd v. Kejuruteraan Rasshin Sdn Bhd & Ors
(Rhodzariah Bujang JC) [2010] 7 CLJ 751 [HC]

Damages - Liquidated damages - Building contract - Delay in completion of project - Whether Rasshin entitled to impose liquidated ascertained damages against NCFM - No provision for incorporation of terms of the main contract into the sub-contract agreement - Amount Rasshin decided to charge NCFM unreasonable - No clear evidence NCFM should be blamed totally for the delay - 30% of liquidated ascertained damages imposed on Rasshin by the Ministry - Whether a fair amount
Ncfm Enterprise Sdn Bhd v. Kejuruteraan Rasshin Sdn Bhd & Ors
(Rhodzariah Bujang JC) [2010] 7 CLJ 751 [HC]

CRIMINAL LAW

Penal Code - Section 376 - Rape - Appeal against conviction and sentence - Penetration, whether established - Testimony of complainant - Corroboration from medical and eyewitness evidence - Prosecution failing to tender report on vaginal smear - Whether adverse inference should be presumed against prosecution - Findings of fact by trial judge, whether based on proper evaluation of testimony of witnesses and medical reports
Razi Amnin v. PP
(Ahmadi Asnawi JC) [2010] 7 CLJ 771 [HC]

INSURANCE

Motor insurance - Construction of policy - Claim for theft of excavators - Burden of proof on insured to bring its case under insured perils in policy - Claim that excavators used in logging activities near border of Malaysia and Indonesia seized by Indonesian soldiers on Malaysian territory and driven into Indonesian territory - Whether within ambit of policy coverage - Whether seizure of excavators an ordinary theft - Policy coverage for excavators only within Sarawak - Failure to prove that excavators were taken from Sarawak
Chua Ek Leng v. Tokio Marine Insurans (Malaysia) Bhd
(Ravinthran Paramaguru JC) [2010] 7 CLJ 730 [HC]

Motor insurance - Exclusion clauses - Claim for theft of excavators - Claim that excavators used in logging activities near border of Malaysia and Indonesia seized by Indonesian soldiers on Malaysian territory and driven into Indonesian territory - Whether exclusion clause excluding liability for losses caused by mutiny, military or usurped power applicable to defeat claim - Whether exclusion clause excluding liability for losses caused by seizure, confiscation or detention by Government Authorities applicable to defeat claim
Chua Ek Leng v. Tokio Marine Insurans (Malaysia) Bhd
(Ravinthran Paramaguru JC) [2010] 7 CLJ 730 [HC]

LABOUR LAW

Trade union - Recognition - 1st respondent accorded recognition to 2nd respondent union to represent the appellant's employees other than those employed in the managerial, executive, confidential and security capacity - Whether 1st respondent had sufficiently given his reasons for his decision - Whether decision is one which any decision maker similarly circumstanced would have made
Holiday Villages Of Malaysia Sdn Bhd v. Menteri Sumber Manusia & Anor
(Suriyadi Halim Omar, Wan Adnan Muhamad & Ramly Ali JJCA) [2010] 7 CLJ 683 [CA]

LIMITATION

Actions in contract and tort - Accrual of cause of action - Running of time - Whether time runs from date of accrual of cause of action - Whether runs from date of discovery of cause of action - Limitation Act 1953, s. 6(1)(a) - Whether postponement of limitation period can be invoked if fraud not pleaded by plaintiff - Limitation Act 1953, s. 29 - Lending bank suing its lawyers for negligence/breach of contract for invalid assignment of land as security for loan - Whether damage from negligence or breach of contract occurred at execution of assignment or disbursement of loan
Ambank (M) Bhd v. Abdul Aziz Hassan & Ors
(Abdull Hamid Embong FCJ, Abdul Malik Ishak & Kang Hwee Gee JJCA) [2010] 7 CLJ 663 [CA]

PREVENTIVE DETENTION

Detention order - Legality - Affidavits - Failure to file affidavits of arresting/detaining officers rebutting detainee's allegation that his arrest and detention at investigation stage was unlawful - Whether could vitiate detention order - Whether not a relevant consideration for issuance of detention order - Whether Deputy Minister's detention order lawful - Dangerous Drugs (Special Preventive Measures) Act 1985, ss. 3(2)(a), (b) & (c), 6(1)
L Rajanderan R Letchumanan v. Timbalan Menteri Dalam Negeri, Malaysia & Ors
(Zaki Tun Azmi CJ, Zulkefli Makinudin & Abdull Hamid Embong FCJJ) [2010] 7 CLJ 653 [FC]

TRUSTS AND TRUSTEES

Breach of Trust - Sub-contract - Money from the Ministry to the extent of the sub-contract sum only held in trust for NCFM by Rasshin - Whether Directors of Rasshin breached that trust when payment in full not effected - Must be clear evidence of their personal involvement in not just withholding the payment but using them for their own personal gain
Ncfm Enterprise Sdn Bhd v. Kejuruteraan Rasshin Sdn Bhd & Ors
(Rhodzariah Bujang JC) [2010] 7 CLJ 751 [HC]

WORDS AND PHRASES

"Government Authorities" - Use of phrase "seizure, confiscation or detention by government authorities" in exclusion clauses in insurance policy - Meaning
Chua Ek Leng v. Tokio Marine Insurans (Malaysia) Bhd
(Ravinthran Paramaguru JC) [2010] 7 CLJ 730 [HC]

INDEKS PERKARA

PROSEDUR JENAYAH

Rayuan - Sabitan, terhadap - Sabitan pengedaran dadah berbahaya - Sama ada rantaian keterangan eksibit material telah terputus - Sama ada pendakwaan perlu memanggil kesemua saksi dalam rantaian keterangan mengenai pergerakan eksibit - Sama ada eksibit yang dikemukakan dalam perbicaraan dibuktikan sebagai eksibit yang sama yang dirampas oleh polis
Muklis Jafar lwn. PP
(Suriyadi Halim Omar, Hasan Lah & Ahmad Maarop HHMR) [2010] 7 CLJ 696 [CA]

UNDANG-UNDANG JENAYAH

Akta Dadah Berbahaya 1952 - Seksyen 39B(2) - Anggapan mengedar dadah bahaya cannabis seberat 866 gram - Milikan dadah berbahaya dibuktikan tanpa bergantung kepada anggapan di bawah s. 37(d) ADB - Anggapan pengedaran di bawah s. 37(da) ADB terpakai - Kes prima facie dibuktikan - Asas pembelaan tidak diajukan kepada saksi pendakwaaan semasa pemeriksaan balas - Pembelaan gagal menimbulkan keraguan yang munasabah - Kes pendakwaan dibuktikan beyond reasonable doubt
Muklis Jafar lwn. PP
(Suriyadi Halim Omar, Hasan Lah & Ahmad Maarop HHMR) [2010] 7 CLJ 696 [CA]

CASE OF THE WEEK

ALBILT RESOURCES SDN BHD v. CASARIA CONSTRUCTION SDN BHD

ARBITRATION: Stay of proceedings - Application - Whether clear and unequivocal intention to arbitrate - Arbitration clause in Pertubuhan Akitek Malaysia Contract expressly incorporated into agreement - Agreement to arbitrate existed - Mandatory for court to stay proceedings pending arbitration - Arbitration Act 2005, ss. 9, 10

WORDS AND PHRASES: "shall" - Arbitration Act 2005, s. 10 - Meaning "directory" or "mandatory"

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NUMBER	TITLE	DATE COMING INTO FORCE	PRINCIPAL ACT NO
PU(A) 297/2010	Customs (Values) (Palm Oil) (No 35) Order 2010	30 August 2010	ACT 235
PU(A) 298/2010	Customs (Values) (Palm Kernel) (No 9) Order 2010	1 September 2010	ACT 235
PU(A) 299/2010	Sales Tax (Exemption) (Amendment) (No 4) Order 2010	1 September 2010	ACT 64
PU(A) 300/2010	Customs Duties (Exemption) (Amendment) (No 4) Order 2010	1 September 2010	ACT 235
PU(A) 301/2010	Local Speed Limit (Federal Roads) (Specified Time Prohibition) (No 2) Order 2010	1 September 2010	ACT 333
PU(A) 303/2010	Employment (Part-Time Employees) Regulations 2010	2 September 2010	ACT 265