Bulletin_38

CLJ Bulletin, Issue 2011, Vol 38

30 September 2011

CLJ Law Malaysia

http://www.cljlaw.com

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New This Week	1. Legislation Highlights
	2. Articles
	a) Legal Network Series Articles
	3. Latest Cases
	a) Legal Network Series
	b) CLJ Volume 7 (Part 2) 2011

1. Legislation Highlights

Principal Acts

NUMBER
TITLE

DATE COMING INTO FORCE

REPEALING

ACT 727 Food Analysts Act 2011 Not Yet In Force - Nil -

ACT 728 Malaysian Quarantine And Inspection Services 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 Not Yet In Force - Nil -

ACT 731 Money Services Business Act 2011 Not Yet In Force - 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 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

ACT A1407 Lembaga Pembangunan Industri Pembinaan Malaysia (Amendment) Act 2011 Not Yet In Force ACT 520

PU(A)

NUMBER TITLE DATE COMING INTO FORCE
PRINCIPAL / AMENDING ACT NO

PU(A) 320/2011 Customs (Values) (Palm Oil) (No 37) Order 2011 12 September 2011 ACT 235

PU(A) 321/2011 Federal Roads (West Malaysia) (Amendment) (No 11) Order 2011 12 September 2011 ACT 376

PU(A) 322/2011 Customs (Values) (Palm Oil) (No 38) Order 2011 19 September 2011 ACT 235

PU(A) 323/2011 Factories And Machinery (Exemption To Petronas Carigali Sdn Bhd, Kerteh, Terengganu) Order 2011 19 September 2011 ACT 139

PU(A) 324/2011 Customs (Values Of Imported Completely Built-Up Motor Vehicles) (New) (Amendment) Order 2011 20 September 2011 ACT 235

PU(B)

NUMBER TITLE DATE COMING INTO FORCE
PRINCIPAL / AMENDING ACT NO

PU(B) 502/2011 Appointment Of Registrars 14 September 2011 ACT 685

PU(B) 503/2011 Appointment Of Date Coming Into Operation 15 September 2011 ACT 729

PU(B) 504/2011 Notice Of Intention To Designate Site As Heritage Site 19 September 2011 ACT 645

PU(B) 505/2011 Appointment Of Directors, Assistant Directors And Rangers 19 September 2011 ACT 716

PU(B) 506/2011 Appointment And Revocation Of Appointment Of Federal Lands Commissioners 20 September 2011 ACT 349

2. Articles

a) Legal Network Series Articles

1. Computer Evidence: Issues And Challenges In The Present And In The Future ^{[Read
excerpt]}
By Dr Duryana Mohamed*

2. Licensing The Telcos: Malaysia And Australia* ^{[Read
excerpt]}
By Safinaz Mohd Hussein & Zinatul Ashiqin Zainol**

3. Latest Cases

a) Legal Network Series

CITATION TITLE SUBJECT

[2009] 1 LNS 779 [HC] Visage Engineering Sdn Bhd v. Smart Frame Sdn Bhd

ARBITRATION: Award - Application to set aside - Whether court could intervene to set aside or remit award - Parties to arbitration local parties - Whether parties intended the international rules of arbitration to apply - Whether parties had submitted to Rules of the Regional Centre for Arbitration at Kuala Lumpur - Whether s. 34(1) applied to exclude application of Arbitration Act 1952

[2009] 1 LNS 783 [HC] Chu Nyuk Tai v. Extra Excel (Malaysia) Sdn Bhd

ADMINISTRATIVE LAW: Rules of natural justice - Breach - Plaintiff suspended as found guilty of price cutting - Allegation in complaint letter accepted by defendant as true - Whether plaintiff given opportunity to defend herself before suspension - Whether breach of rules of natural justice - Whether suspension null and void

CONTRACT: Breach - Distributorship Agreement between plaintiff and defendant - Plaintiff suspended 3 months with effect from 28 June 2006 - Plaintiff not allowed to exercise her rights as Distributor after expiry of 3 months suspension - Whether defendant in imposing initial and subsequent suspension breached said Distributorship Agreement - Whether plaintiff proved her claim

[2010] 1 LNS 220 [HC] Yung Poh Chung & Ors v. Superintendent Of Lands And Surveys Samarahan Division

LAND LAW: Acquisition of land - Compensation - Objection to amount awarded by superintendent - Reference to High Court under s. 56 Land Code (Cap 81) (Sarawak) - Comparable sales in vicinity of subject land - Factors considered - Recommendation of assessors - Compensation where there is more than one dwelling house and/or buildings on subject land - Whether award of superintendent inadequate - Land Code (Cap 81) (Sarawak), ss. 39A(1)(b), (2)(b), 67 (1)(c)

[2010] 1 LNS 221 [HC] PP v. Abg Shukeri Abg Mustafa

CRIMINAL LAW: Penal Code - Sections 300 & 302 - Murder - Causing death by pouring petrol on victim and setting her on fire - Inconsistent testimony of eyewitness as to which lights in house were switched on - Whether eyewitness saw accused clearly or merely assumed it was him - Conclusion as to cause of death, whether evidence of pathologist acceptable as he was not a burn specialist - Prima facie case - Defence of accident - Credibility of accused as witness

CRIMINAL LAW: Penal Code - Sections 300 & 302 - Murder - Causing death by pouring petrol on victim and setting her on fire - Intention - Whether accused knew act was so imminently dangerous that it must in all probability cause death, s. 300(d) - Prima facie case - Defence of accident - Credibility of accused as witness

[2010] 1 LNS 223 [HC] PP v. Nurminah Matarun

CRIMINAL LAW: Dangerous Drugs Act 1952 - Section 39B(1)(a) - Trafficking in 71.92g methamphetamine - Accused (front passenger) arrested in taxi driven by her son - Accused and son claiming that rear passenger was detained as well - Corroboration by independent witness - Police denying existence of rear passenger - Whether police attempted to suppress such fact - Whether defence raised reasonable doubt

CITATION	TITLE	SUBJECT
[2009] 1 LNS 779 [HC]	Visage Engineering Sdn Bhd v. Smart Frame Sdn Bhd	ARBITRATION: Award - Application to set aside - Whether court could intervene to set aside or remit award - Parties to arbitration local parties - Whether parties intended the international rules of arbitration to apply - Whether parties had submitted to Rules of the Regional Centre for Arbitration at Kuala Lumpur - Whether s. 34(1) applied to exclude application of Arbitration Act 1952
[2009] 1 LNS 783 [HC]	Chu Nyuk Tai v. Extra Excel (Malaysia) Sdn Bhd	ADMINISTRATIVE LAW: Rules of natural justice - Breach - Plaintiff suspended as found guilty of price cutting - Allegation in complaint letter accepted by defendant as true - Whether plaintiff given opportunity to defend herself before suspension - Whether breach of rules of natural justice - Whether suspension null and void CONTRACT: Breach - Distributorship Agreement between plaintiff and defendant - Plaintiff suspended 3 months with effect from 28 June 2006 - Plaintiff not allowed to exercise her rights as Distributor after expiry of 3 months suspension - Whether defendant in imposing initial and subsequent suspension breached said Distributorship Agreement - Whether plaintiff proved her claim
[2010] 1 LNS 220 [HC]	Yung Poh Chung & Ors v. Superintendent Of Lands And Surveys Samarahan Division	LAND LAW: Acquisition of land - Compensation - Objection to amount awarded by superintendent - Reference to High Court under s. 56 Land Code (Cap 81) (Sarawak) - Comparable sales in vicinity of subject land - Factors considered - Recommendation of assessors - Compensation where there is more than one dwelling house and/or buildings on subject land - Whether award of superintendent inadequate - Land Code (Cap 81) (Sarawak), ss. 39A(1)(b), (2)(b), 67 (1)(c)
[2010] 1 LNS 221 [HC]	PP v. Abg Shukeri Abg Mustafa	CRIMINAL LAW: Penal Code - Sections 300 & 302 - Murder - Causing death by pouring petrol on victim and setting her on fire - Inconsistent testimony of eyewitness as to which lights in house were switched on - Whether eyewitness saw accused clearly or merely assumed it was him - Conclusion as to cause of death, whether evidence of pathologist acceptable as he was not a burn specialist - Prima facie case - Defence of accident - Credibility of accused as witness CRIMINAL LAW: Penal Code - Sections 300 & 302 - Murder - Causing death by pouring petrol on victim and setting her on fire - Intention - Whether accused knew act was so imminently dangerous that it must in all probability cause death, s. 300(d) - Prima facie case - Defence of accident - Credibility of accused as witness
[2010] 1 LNS 223 [HC]	PP v. Nurminah Matarun	CRIMINAL LAW: Dangerous Drugs Act 1952 - Section 39B(1)(a) - Trafficking in 71.92g methamphetamine - Accused (front passenger) arrested in taxi driven by her son - Accused and son claiming that rear passenger was detained as well - Corroboration by independent witness - Police denying existence of rear passenger - Whether police attempted to suppress such fact - Whether defence raised reasonable doubt

b. CLJ Volume 7 (Part 2) 2011

COURT

FEDERAL COURT

Amalan Tepat Sdn Bhd v. Panflex Sdn Bhd
Richard Malanjum CJ (Sabah & Sarawak), Zulkefli Makinudin, Raus Shariff FCJJ
(Civil Procedure - Judgments and orders - Declaratory relief - Granting of - Rules of the High Court 1980, O. 19 r. 7(1)) [2011] 7 CLJ 121 [FC]

COURT OF APPEAL

A Karunathan Arunasalam & Ors v. Pentadbir Tanah Daerah Petaling & Another Appeal
Zainun Ali, Azhar Ma'ah, Syed Ahmad Helmy JJCA
(Land Law - Acquisition of land - Validity - Challenge against - Compensation - Appeal against) [2011] 7 CLJ 130 [CA]

HIGH COURT

Ng Chooi Foong v. Dynaura Mutiara Sdn Bhd & Anor
Nik Hasmat Mohamad JC
(Contract; Tort - Misrepresentation - Providing special security measures - Breach - Negligence - Duty of care) [2011] 7 CLJ 145 [HC]

Hew Kiang Hoe & Anor v. Shencourt Properties Sdn Bhd
Lee Swee Seng JC
(Companies And Corporations - Winding up - Liquidator - Application to remove) [2011] 7 CLJ 158 [HC]

Hiu Kuan Hoe v. Société Des Produits Nestlé SA
Azahar Mohamed J
(Trade Marks - Registration - Opposition allowed - Appeal - Whether appellant bona fide proprietor of the mark) [2011] 7 CLJ 179 [HC]

RS Thanalachimi v. Sundararaju Mattaya
Vazeer Alam Mydin Meera JC
(Contract; Damages - Marriage - Breach - General and special damages) [2011] 7 CLJ 197 [HC]

Tan Sri Dato' Hj Lamin Hj Mohd Yunus v. Bursa Malaysia Securities Bhd
Aziah Ali J
(Administrative Law - Judicial review - Certiorari) [2011] 7 CLJ 215 [HC]

Victoria Jayaseele Martin v. Majlis Agama Islam Wilayah Persekutuan & Anor
Rohana Yusuf J
(Constitutional Law; Legal Profession; Islamic Law - Syariah courts - Rights of appearance for counsel - Fundamental liberties - Rejection of non-Muslim Advocate & Solicitor) [2011] 7 CLJ 233 [HC]

SUBJECT INDEX

ADMINISTRATIVE LAW

Judicial review - Certiorari - Appeals Committee upholding decision of Listing Committee that applicant director breached Listing Requirements - Whether Appeals Committee erred in upholding decision - Whether Listing Requirements had statutory force - Whether applicant failed to submit financial statements - Whether Appeals Committee considered appointment of Provisional Liquidator - Whether office of director functus officio - Whether statutory duties of directors assignable to Provisional Liquidator
Tan Sri Dato' Hj Lamin Hj Mohd Yunus v. Bursa Malaysia Securities Bhd
(Aziah Ali J) [2011] 7 CLJ 215 [HC]

CIVIL PROCEDURE

Judgments and orders - Declaratory relief - Granting of - Application for declaratory judgment pursuant to O. 19 r. 7(1) Rules of the High Court 1980 - Whether must be supported by evidence of factual matrix - Whether impugned judgment a judgment in default of defence - Whether impugned judgment being declaratory in substance did not meet the entrenched rule of practice - Gan Boon Kyee v. Yap Hong Sin & Anor - Patten v. Burke Publishing Co
Amalan Tepat Sdn Bhd v. Panflex Sdn Bhd
(Richard Malanjum CJ (Sabah & Sarawak), Zulkefli Makinudin, Raus Shariff FCJJ) [2011] 7 CLJ 121 [FC]

Companies and Corporations Winding-up - Liquidator - Liquidator tardy and incompetent - Allegation of - Application to remove liquidator - Factors to be considered - Fair play to liquidator - Companies Act 1965, s. 232(1)
Hew Kiang Hoe & Anor v. Shencourt Properties Sdn Bhd
(Lee Swee Seng JC) [2011] 7 CLJ 158 [HC]

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)
Victoria Jayaseele Martin v. Majlis Agama Islam Wilayah Persekutuan & Anor
(Rohana Yusuf J) [2011] 7 CLJ 233 [HC]

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
Victoria Jayaseele Martin v. Majlis Agama Islam Wilayah Persekutuan & Anor
(Rohana Yusuf J) [2011] 7 CLJ 233 [HC]

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
Victoria Jayaseele Martin v. Majlis Agama Islam Wilayah Persekutuan & Anor
(Rohana Yusuf J) [2011] 7 CLJ 233 [HC]

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
Victoria Jayaseele Martin v. Majlis Agama Islam Wilayah Persekutuan & Anor
(Rohana Yusuf J) [2011] 7 CLJ 233 [HC]

CONTRACT

Breach - Action for damages - Term of Deed of Mutual Covenant - To provide security services in return for maintenance fee - Whether defendants committed neglect and carelessness in maintaining security of residence in housing estate - Whether breach proved
Ng Chooi Foong v. Dynaura Mutiara Sdn Bhd & Anor
(Nik Hasmat Mohamad JC) [2011] 7 CLJ 145 [HC]

Marriage - Breach - Breach of promise to marry - Defendant claimed he fulfilled obligation to marry Singaporean plaintiff through Hindu wedding ceremony - Wedding not officiated by Registrar of Marriages and so void for non-registration - Plaintiff unaware that wedding had to be registered - Whether plaintiff's claim for breach of promise to marry and damages justified - Law Reform (Marriage & Divorce) Act 1976, s. 22(4)
RS Thanalachimi v. Sundararaju Mattaya
(Vazeer Alam Mydin Meera JC) [2011] 7 CLJ 197 [HC]

Misrepresentation - Oral representation - First defendant represented to provide special security measures in housing project - Robbery committed at plaintiff resident's house - Whether 1^st defendant failed to provide reasonable and sufficient security measures - Whether 1^st defendant bound by representation made - Whether 1^st defendant committed breach, neglect and carelessness in maintaining security of residences in housing project
Ng Chooi Foong v. Dynaura Mutiara Sdn Bhd & Anor
(Nik Hasmat Mohamad JC) [2011] 7 CLJ 145 [HC]

DAMAGES

Quantum - General and special damages - Breach of promise to marry - Pain and suffering involving foreign plaintiff - Plaintiff's loss of income - Plaintiff's additional expenses on engagement and wedding - Whether local cases used as precedent to assess damages - Hindu wedding ceremony not legally officiated - Whether claim for damages successful
RS Thanalachimi v. Sundararaju Mattaya
(Vazeer Alam Mydin Meera JC) [2011] 7 CLJ 197 [HC]

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)
Victoria Jayaseele Martin v. Majlis Agama Islam Wilayah Persekutuan & Anor
(Rohana Yusuf J) [2011] 7 CLJ 233 [HC]

LAND LAW

Acquisition of land - Compensation - Appeal against - Challenging validity of land acquisition - Doctrine of estoppel - Whether applicable - Whether filing of Form N signifies acquiescence - Whether appellants could not both challenge the validity of the land acquisition and simultaneously raise objection to the compensation vide Form N - Whether improper for appellants to raise jurisdictional and nullity issue - Whether appeal dismissed - Land Acquisition Act 1960, ss. 8, 38(4)
A Karunathan Arunasalam & Ors v. Pentadbir Tanah Daerah Petaling & Another Appeal
(Zainun Ali, Azhar Ma'ah, Syed Ahmad Helmy JJCA) [2011] 7 CLJ 130 [CA]

Acquisition of land - Compensation - Award of compensation - Appeal against - Failure to prove prima facie case - Whether trial judge erred when making award of compensation - Whether court to accept quantum of compensation awarded by Land Administrator - Land Acquisition Act 1960, s. 40D
A Karunathan Arunasalam & Ors v. Pentadbir Tanah Daerah Petaling & Another Appeal
(Zainun Ali, Azhar Ma'ah, Syed Ahmad Helmy JJCA) [2011] 7 CLJ 130 [CA]

Acquisition of land - Validity - Challenge against - Doctrine of estoppel - Whether applicable - Whether filing of Form N signifies acquiescence - Whether appellants could not both challenge the validity of the land acquisition and simultaneously raise objection to the compensation vide Form N - Whether improper for appellants to raise jurisdictional and nullity issue - Whether appeal dismissed - Land Acquisition Act 1960, ss. 8, 38(4)
A Karunathan Arunasalam & Ors v. Pentadbir Tanah Daerah Petaling & Another Appeal
(Zainun Ali, Azhar Ma'ah, Syed Ahmad Helmy JJCA) [2011] 7 CLJ 130 [CA]

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)
Victoria Jayaseele Martin v. Majlis Agama Islam Wilayah Persekutuan & Anor
(Rohana Yusuf J) [2011] 7 CLJ 233 [HC]

TORT

Negligence - Duty of care - Breach of duty - Robbery committed at plaintiff's house - Second defendant owner of property adjoined with plaintiff's neighbourhood - Whether 2nd defendant liable in failing to prevent wrongful and unauthorised entry into its land that led to robbery in plaintiff's house - Whether 2nd defendant legally obligated to plaintiff
Ng Chooi Foong v. Dynaura Mutiara Sdn Bhd & Anor
(Nik Hasmat Mohamad JC) [2011] 7 CLJ 145 [HC]

TRADE MARKS

Registration - Opposition allowed - Appeal - Whether decision of Registrar should not be interfered - Whether appellant's use of trade mark likely to deceive or cause confusion to public - Whether marks identical with each other - Whether appellant's goods and respondent's goods were the same goods or same description of goods - Whether appellant discharged burden that use of mark not calculated to deceive or cause confusion - Whether appellant bona fide proprietor of the mark - Trade Marks Act 1976, ss. 19(1), 14(1)(a) & 25(1)
Hiu Kuan Hoe v. Société Des Produits Nestlé SA
(Azahar Mohamed J) [2011] 7 CLJ 179 [HC]

CASE OF THE WEEK

DATO' SERI ANWAR IBRAHIM v. PP

CRIMINAL PROCEDURE: Appeal - Appeal against trial judge's dismissal of recusal application - Whether trial judge's ruling in dismissing application appealable - Courts of Judicature Act 1964, s. 3 - Penal Code, s. 377B

CRIMINAL PROCEDURE: Judge - Application to recuse trial judge - Pre judgment and biasness - Whether judge made a conclusive finding of beyond reasonable doubt proved by prosecution before calling for defence - Penal Code, s. 377B

CRIMINAL LAW: Penal Code - Section 377B - Offence of committing carnal intercourse against the order of nature - Conduct of judge in trial - Pre judgment and biasness alleged by accused - Whether established - Whether trial judge right in dismissing accused's application to recuse judge - Whether trial judge's ruling in dismissing application appealable - Courts of Judicature Act 1964, s. 3 - Penal Code, s. 377B

CRIMINAL PROCEDURE: Trial - Stay of proceedings - Oral application for stay pending outcome of proposed appeal - Whether special circumstances warranted stay - Whether proposed appeal operated as stay

CLJ Bulletin
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NUMBER	TITLE	DATE COMING INTO FORCE	REPEALING
ACT 727	Food Analysts Act 2011	Not Yet In Force	- Nil -
ACT 728	Malaysian Quarantine And Inspection Services 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	Not Yet In Force	- Nil -
ACT 731	Money Services Business Act 2011	Not Yet In Force	- Nil -
ACT 732	National Wages Consultative Council Act 2011	Not Yet In Force	- Nil -