Legal Network Series

[2010] 1 LNS 959	SHAMSUL SAAD v. TENGKU DATO' IBRAHIM PETRA TENGKU INDRA PETRA & ORS	COMPANIES AND CORPORATIONS: Derivative action - Fraud on the minority - Defendants removed as directors at EGM of company - Whether control of company by defendants negated - Whether substratum for plaintiff to continue with derivative action collapsed - Whether an abuse of process to allow plaintiff to maintain this action
[2010] 1 LNS 1012	SINGER (MALAYSIA) SDN BHD v. LEE NGA	EVIDENCE: Documentary evidence - Admissibility - Produced by branch computer - Failure to produce certificate - Whether certificate mandatory - Whether computer-generated documents tendered by plaintiff admissible under s. 90A of the Evidence Act 1950 EVIDENCE: Documentary evidence - Admissibility - Original copies of documents not tendered by plaintiff as with police - Whether prerequisites of s. 65 established to enable documents to be tendered as secondary evidence - Defence objecting to admissibility of documents despite waiving objection previously - Whether defendant's objection should be dismissed - Whether plaintiff's counsel's explanation that original documents with police acceptable
[2010] 1 LNS 1040	MAYBANK SECURITIES SENDIRIAN BERHAD v. NATIONAL UNION OF BANK EMPLOYEES & ORS	CONTRACT: Illegality - Knowledge - Trade conducted by plaintiff to purchase non trustee shares - Whether contravened laws relating to investment of a trade union's assets - Whether contract between plaintiff and first defendant became illegal on this basis - Whether parties aware of illegality when contract made - Whether action against second and third defendants also unsustainable CONTRACT: Remedies - Restitution - Plaintiff - Monies paid out to sellers of shares purchased by first defendant - Whether plaintiff received advantage from transaction - Whether wrong and unfair to order plaintiff to make restitution - Whether Contracts Act 1950, s. 66 applicable TRUSTS AND TRUSTEES: Establishment of trust - First defendant appointed plaintiff to execute trading of shares in its account - Whether plaintiff a trustee under Trade Unions Act 1959 - If so, whether plaintiff in breach of laws when it transacted in non-trustee shares
[2010] 1 LNS 1334	ROYAL SELANGOR GOLF CLUB v. CLUB EMPLOYEES UNION, PENINSULAR MALAYSIA & ANOR	ADMINISTRATIVE LAW: Judicial review - Certiorari - Application for - To quash Industrial Court award - Findings of fact - Whether second respondent weighed and considered all relevant facts in arriving at its findings of fact - Applicant ordered to reinstate employees to be retrenched to any suitable position in club without loss of seniority or pay - Whether second respondent misconstrued and erroneously stated intention, policy and scope of the Industrial Relations Act 1967 - Whether impugned award suffered any infirmities of "illegality", irrationality" or "procedural impropriety" warranting judicial review
[2010] LNS 1 1338	GOLDCOURSE SDN BHD v. ASAZTERA SDN BHD	ARBITRATION: Award - Setting aside - Error of law on face of award - Misconduct - Principles of - Whether principles in Edwards v. Bairstow could apply in arbitration law in Malaysia and in this application ARBITRATION: Award - Setting aside - Application to set aside - Grounds of misconduct and/or error on face of award - Whether there were exceptional circumstances to allow Court to set aside award - Whether Arbitrator applied his mind correctly to Clause 23 and unilateral amendments made to the RAM Contract - Whether Arbitrator failed to perform essential duties cast on him - Whether award should be set aside

CLJ 2012 Volume 6 (Part 1)

COURT

SC INDIA

Mohd Imran Khan v. State Government (NCT Of Delhi)
P Sathasivam, Dr BS Chauhan JJ
(Criminal Law; Criminal Procedure) [2012] 6 CLJ 1 [SC India]

COURT OF APPEAL

Cherian KC George & Anor v. PP
Raus Sharif PCA, Hishamudin Mohd Yunus, Anantham Kasinather JJCA
(Criminal Procedure; Words And Phrases - Forfeiture of property under Dangerous Drugs (Forfeiture of Property) Act 1988) [2012] 6 CLJ 17 [CA]

Ketua Pengarah Hasil Dalam Negeri v. Lai Keng Chong & Anor
Abdul Malik Ishak, Mohamed Apandi Ali, Balia Yusof Wahi JJCA
(Revenue Law - Income tax - Assessment - Gross profit ratio (GPR) - Additional assessment - Whether just and appropriate) [2012] 6 CLJ 29 [CA]

Majlis Peguam v. Poh Fook Yuen & Anor
Suriyadi Halim Omar, Jeffrey Tan, Abdul Wahab Patail JJCA
(Legal Profession - Malaysian Bar - Locus standi) [2012] 6 CLJ 36 [CA]

HIGH COURT

Genesis Force Sdn Bhd v. Sarawak Coal Resources Sdn Bhd & Ors
Ravinthran Paramaguru JC
(Civil Procedure; Intellectual Property; Tort - Public Authority - Challenging decision of Public Authority) [2012] 6 CLJ 47 [HC]

Kumpulan Teknik Sdn Bhd v. Murad Hashim Communication Sdn Bhd & Anor
Harmindar Singh Dhaliwal JC
(Contract - Assignment - Quantum meruit - Whether unjust enrichment) [2012] 6 CLJ 80 [HC]

Syarikat Bekalan Air Selangor Sdn Bhd v. Fadha Nur Ahmad Kamar & Anor
Mohamad Ariff Yusof J
(Civil Procedure - Contempt of court - Order of committal, application for - Issue of subjudice) [2012] 6 CLJ 93 [HC]

Tajukon Sdn Bhd v. Mulpha Land Bhd
Nurchaya Arsad J
(Company Law - Winding up - Change of company name - Whether changed identity of defendant) [2012] 6 CLJ 108 [HC]

SUBJECT INDEX

CIVIL PROCEDURE

Contempt of court - Order of committal, application for - Issue of subjudice - Whether arose - Whether statements made were attacks on merit of ongoing litigation case - Whether court satisfied on high burden of proof that administration of justice sullied or compromised - Whether allegation of contempt proved against respondents
Syarikat Bekalan Air Selangor Sdn Bhd v. Fadha Nur Ahmad Kamar & Anor
(Mohamad Ariff Yusof J) [2012] 6 CLJ 93 [HC]

Public Authority - Decision of - Challenging decision of Public Authority - Whether should be by way of judicial review - Rules of the High Court 1980, O. 53
Genesis Force Sdn Bhd v. Sarawak Coal Resources Sdn Bhd & Ors
(Ravinthran Paramaguru JC) [2012] 6 CLJ 47 [HC]

COMPANY LAW

Winding up - Notice of demand - Setting aside - Change of company name - Whether changed identity of defendant as creditor - Non-compliance with s. 121(1A) Companies Act 1965 - Whether caused injustice towards plaintiff - Whether defendant entitled to present winding up petition against plaintiff - Whether winding up petition grounded on valid judgment - Whether complaints advanced by plaintiff unsustainable - Companies Act 1965, s. 218(2)(a)
Tajukon Sdn Bhd v. Mulpha Land Bhd
(Nurchaya Arsad J) [2012] 6 CLJ 108 [HC]

Winding up - Petition - Injunction to restrain further proceedings - Change of company name - Whether changed identity of defendant as creditor - Non compliance with s. 121(1A) Companies Act 1965 - Whether caused injustice towards plaintiff - Whether defendant entitled to present winding up petition against plaintiff - Whether winding up petition grounded on valid judgment - Whether complaints advanced by plaintiff unsustainable - Companies Act 1965, s. 218(2)(a)
Tajukon Sdn Bhd v. Mulpha Land Bhd
(Nurchaya Arsad J) [2012] 6 CLJ 108 [HC]

CONTRACT

Assignment - Intention of parties - Claim for damages for work done - Whether parties consented and agreed to assignment under contract - Whether parties' intention was to assign project to plaintiff - Whether second defendant failed to honour assignment to plaintiff - Whether second defendant obliged under s. 71 Contracts Act 1950 or on basis of quantum meruit to pay plaintiff all monies due for work done
Kumpulan Teknik Sdn Bhd v. Murad Hashim Communication Sdn Bhd & Anor
(Harmindar Singh Dhaliwal JC) [2012] 6 CLJ 80 [HC]

Breach - Joint venture agreement - Claim for deposit paid by plaintiff under agreement - Whether first defendant failed to comply with obligations and undertaking - Terms of agreement - Whether deposit non-refundable
Kumpulan Teknik Sdn Bhd v. Murad Hashim Communication Sdn Bhd & Anor
(Harmindar Singh Dhaliwal JC) [2012] 6 CLJ 80 [HC]

Quantum meruit - Joint venture - Claim for damages for work done - Plaintiff to submit invoices and obtain payment directly from second defendant - Whether claim based on quantum meruit can be made for work done where contract terminated by breach - Whether there was unjust enrichment - Whether second defendant obliged under s. 71 Contracts Act 1950 or on basis of quantum meruit to pay plaintiff all monies due for work done
Kumpulan Teknik Sdn Bhd v. Murad Hashim Communication Sdn Bhd & Anor
(Harmindar Singh Dhaliwal JC) [2012] 6 CLJ 80 [HC]

CRIMINAL LAW

Penal Code, 1860 - S. 376 - Rape of minor - Appreciation of evidence - Sole testimony of prosecutrix - Credibility - Corroboration - Not ordinarily necessary - Rape is not merely a physical assault - Rapist degrades very soul of helpless female - Testimony of prosecutrix must be appreciated in background of entire case - If totality of circumstances disclose that prosecutrix does not have a strong motive to falsely implicate accused, court should ordinarily have no hesitation in accepting her evidence - Statement of prosecutrix, if found to be worthy of credence and reliable, requires no corroboration - Court may convict accused on sole testimony of prosecutrix - Evidence Act, 1872, ss. 118 and 114 Ill. (b)
Mohd Imran Khan v. State Government (NCT Of Delhi)
(P Sathasivam, Dr BS Chauhan JJ) [2012] 6 CLJ 1 [SC India]

Penal Code, 1860 - Section 376 - Rape of minor - Age of prosecutrix - Determination of - Registration certificate/Radiologist's report - Evidentiary value - Registration of birth certificate reveals prosecutrix was less than 16 years of age on date of incident - Radiologist's report revealed that age of prosecutrix was 16 to 17 years - Defence also produced certificate from Hospital - IO in order to aid appellant-accused had made a statement that certificate on record did not belong to prosecutrix - Registration of birth certificate duly proved by Medical Record Officer and CMO, NDMC and it was explained that birth certificate produced by defence was of a different female child - Documents have thoroughly been examined by courts below - No reason to examine issue further - Radiologist's report cannot predict exact date of birth - Margin of error in age ascertained by radiological examination is two years on either side - Original record produced before court - Held, prosecutrix was less than 16 years of age on date of incident - Demographics and Demography - Registration of Births and Deaths Act, 1969 - Section 17 - Age - Evidence Act, 1872, section 35
Mohd Imran Khan v. State Government (NCT Of Delhi)
(P Sathasivam, Dr BS Chauhan JJ) [2012] 6 CLJ 1 [SC India]

Penal Code, 1860 - Section 376 - Rape of minor - Conviction confirmed - Defence of majority of prosecutrix and consent, rejected - Appellant contended that prosecutrix was over 16 years of age and it was a case of consent - Prosecutrix had given full version of incident - Accused persons showed her a knife and told her in case she tried to run away or raise noise, they would kill her - Registration of birth certificate clearly reveals that prosecutrix was less than 16 years on date of incident - She could not raise hue and cry as she was totally in a position of shock - All the prosecution witnesses have faced grilling cross-examination but nothing could be elicited to discredit any part of their evidence - Held, trial court rightly came to conclusion that there was no reason to disbelieve prosecutrix, as no self respecting girl would level a false charge of rape against anyone by staking her own honour - Evidence of rape stood fully corroborated by medical evidence - Appeals dismissed
Mohd Imran Khan v. State Government (NCT Of Delhi)
(P Sathasivam, Dr BS Chauhan JJ) [2012] 6 CLJ 1 [SC India]

CRIMINAL PROCEDURE

Criminal Trial - Investigation - Defective or illegal investigation - Obligation to accept statement of IO, if any - IO made an attempt to help appellant-accused - In examination-in-chief he deposed that birth certificate was genuine - In cross-examination he deposed that "birth certificate of prosecutrix did not relate to prosecutrix" - IO was not declared hostile - Held, in view of birth certificate available on record, and accepted as genuine, this part of statement of IO cannot be believed - Criminal justice should not be made a casualty for wrongs committed by investigating officers - Investigating officer is supposed to investigate an offence avoiding any kind of mischief or harassment to either party - He has to be fair and conscious so as to rule out any possibility of bias or impartial conduct - Criminal Procedure Code, 1973 - Sections 157 and 156 - Duties of IO - Criminal Trial - Witnesses - Police officials/personnel/IO as witnesses
Mohd Imran Khan v. State Government (NCT Of Delhi)
(P Sathasivam, Dr BS Chauhan JJ) [2012] 6 CLJ 1 [SC India]

Forfeiture - Dangerous drugs - Forfeiture of property under Dangerous Drugs (Forfeiture of Property) Act 1988 - Presumption of illegal property - Whether rebutted - Dangerous Drugs (Forfeiture of Property) Act 1988, s. 35
Cherian KC George & Anor v. PP
(Raus Sharif PCA, Hishamudin Mohd Yunus, Anantham Kasinather JJCA) [2012] 6 CLJ 17 [CA]

Forfeiture - Dangerous Drugs - Forfeiture of property under Dangerous Drugs (Forfeiture of Property) Act 1988 - Whether s. 35 applied to claim under s. 32 of the Act - Dangerous Drugs (Forfeiture of Property) Act 1988, ss. 32, 35
Cherian KC George & Anor v. PP
(Raus Sharif PCA, Hishamudin Mohd Yunus, Anantham Kasinather JJCA) [2012] 6 CLJ 17 [CA]

INTELLECTUAL PROPERTY

Copyright - Infringement of - Copyright in reports - Whether copyright in reports established - Whether plaintiff proved that defendant infringed copyright
Genesis Force Sdn Bhd v. Sarawak Coal Resources Sdn Bhd & Ors
(Ravinthran Paramaguru JC) [2012] 6 CLJ 47 [HC]

LEGAL PROFESSION

Malaysian Bar - Locus standi - Complaint against advocate and solicitor to Disciplinary Board ('DB') - Order by court restraining DB from further hearing and investigating complaint - Whether Majlis Peguam should be allowed to intervene - Whether Majlis Peguam "party aggrieved" when DB prevented from carrying out duties - Legal Profession Act 1976, ss. 42 & 47
Majlis Peguam v. Poh Fook Yuen & Anor
(Suriyadi Halim Omar, Jeffrey Tan, Abdul Wahab Patail JJCA) [2012] 6 CLJ 36 [CA]

REVENUE LAW

Income tax - Assessment - Gross profit ratio (GPR) - Special Commissioners of Income Tax (SC) imposed GPR of 22% in raising additional assessment - Whether just and appropriate pursuant to s. 91(1) Income Tax Act 1967 - Doctrine of estoppel - Whether taxpayers could raise defence of estoppels against Director General of Inland Revenue
Ketua Pengarah Hasil Dalam Negeri v. Lai Keng Chong & Anor
(Abdul Malik Ishak, Mohamed Apandi Ali, Balia Yusof Wahi JJCA) [2012] 6 CLJ 29 [CA]

TORT

Conspiracy to injure - Whether defendants acted in concert to harm - Whether plaintiff had proved conspiracy on part of defendants
Genesis Force Sdn Bhd v. Sarawak Coal Resources Sdn Bhd & Ors
(Ravinthran Paramaguru JC) [2012] 6 CLJ 47 [HC]

WORDS AND PHRASES

"the presumption as to liable person and illegal property" - Dangerous Drugs (Forfeiture of Property) Act 1988, s. 35 - Whether applicable to proceeding under s. 32 - Whether words "any proceedings" in s. 35 covers all proceedings under the Act
Cherian KC George & Anor v. PP
(Raus Sharif PCA, Hishamudin Mohd Yunus, Anantham Kasinather JJCA) [2012] 6 CLJ 17 [CA]

Legal Network Series Articles

1. PERSPECTIVES ON THE LEGACY OF SALOMON v. SALOMON ON THE NIGERIAN AND MALAYSIAN COMPANY LAWS ^{[Read excerpt]}
    by: Khairat Oluwakemi Akanbi [2012] 1 LNS(A) lvii

Principal Acts

Amending Acts

PU(A)

PU(B)