Legal Network Series

[2010] 1 LNS 102	ATLANTIC PLANTATION SDN BHD v. MATURE LAND SDN BHD	CONTRACT: Sale and purchase of property - Breach - Vacant possession - Meaning of "vacant possession" in the context of sale of landed property - Whether defendant delivered vacant possession of the whole of the subject land to plaintiff within 1 day after full payment of purchase price was effected by plaintiff - Defendant paid compensation to illegal occupiers and all houses demolished - Whether this meant defendant had delivered vacant possession to plaintiff - Whether illegal occupiers' problem still persisted - Whether defendant was in breach of clause 5 of the Sale and Purchase Agreement for failing to deliver vacant possession of about 10% of the whole of land CONTRACT: Damages - Sale and purchase of property - Whether plaintiff suffered any loss and damage in consequence of defendant's non-delivery of vacant possession of land or part thereof - Sum of reasonable compensation to be paid to plaintiff - Whether plaintiff failed and/or omitted to prove actual loss or damage suffered by them - Whether the court could determine the reasonable compensation envisaged by s. 75 of the Contracts Act 1950 CONTRACT: Damages - Breach - Mitigation - Defendant in breach of contract by failing to deliver vacant possession of land to the plaintiff - Whether plaintiff under a duty to mitigate its loss in consequence thereof - Whether plaintiff attempted to mitigate its loss by initiating legal action against illegal occupiers although unsuccessful in resolving the problem - Whether such efforts by plaintiff sufficient to discharge its duty to mitigate CONTRACT: Sale and purchase of property - Sale and purchase agreement - Warranty - Whether defendant had given warranty that the whole of the subject land would be free from illegal occupiers upon delivery of vacant possession to plaintiff - Whether there was an implied warranty by defendant to this effect - Whether clause 18 and item 2 of the Sale and Purchase Agreement precluded plaintiff from objecting in respect of the illegal occupiers occupying part of land CONTRACT: Sale and purchase of property - Specific performance - Whether court should order specific performance - Illegal occupiers' problem long outstanding - Tough and aggressive stance adopted by illegal occupiers - Whether too onerous on defendant to order defendant to deliver vacant possession of remaining 51.37 acres of land - Whether would be very difficult for defendant to enforce any Court order under the circumstances
[2010] 1 LNS 132	RAVINDRA RAMACHANDRAN v. THANG MUN SEONG	CIVIL PROCEDURE: Judgments and orders - Ex-parte order - Application to set aside - Withholding of information relating to question of wife's capacity or locus for the court to evaluate at ex parte stage - Whether evidence adduced showed that wife was suffering from any significant ailments, mental or otherwise which adversely affected her mental state of mind - Whether husband obtained ex parte order without full disclosure and in suppression of material facts - Whether husband should be deprived of any advantage he may have derived from that breach of duty - Whether wife should be allowed to take the children out of the matrimonial home
[2010] 1 LNS 145	KERAJAAN MALAYSIA v. ENG SIM LEONG @ NG LEONG SING	EVIDENCE: Documentary evidence - Secondary evidence - Admissibility of - Original letter dated 11 December 2002 not produced - Whether effort was made by defendant to retrieve letter - Whether defendant failed to satisfactorily account for non-production of the original letter - Whether defendant failed to satisfy the condition in s. 65(1)(c) of the Evidence Act 1950 - Whether copy of the letter of 11 December 2002 admissible REVENUE LAW: Real Property Gains Tax - Claim for - Failure of defendant to pay real property gains tax ("RPGT") assessed for year 1995 - Defendant claimed his appeal was allowed vide plaintiff's letter of 11 December 2002 exempting him from paying RPGT - Whether letter of 11 December 2002 was false or forged - Whether plaintiff approved defendant's appeal and exempted defendant from paying RPGT - Whether if at all there was an appeal, such decision would have come from the Special Commissioners of Income Tax and not via purported letter of 11 December 2002 REVENUE LAW: Real Property Gains Tax - Claim for - Estoppel - Defendant claiming exemption from payment of RPGT based on plaintiff's letter of 11 December 2002 - Whether plaintiff estopped from claiming RGPT by virtue of letter of exemption - Whether estoppel could operate against the Government in revenue matters
[2011] 1 LNS 812	NATURE'S LAB SDN BHD v. AUTO BAVARIA SDN BHD & ANOR	SALE OF GOODS: Motor car - Claim against dealer - Whether 1st defendant was a division of the 2nd defendant - Whether 2nd defendant was the seller/vendor, distributor and agent of BMW vehicles in Malaysia and not the 1st defendant - Whether plaintiff's claim against 1st defendant was wrong and misconceived SALE OF GOODS: Merchantable quality - Alleged breach of warranty that the BMW purchased by plaintiff was not safe nor reliable - Whether there was a breach of warranty by 2nd defendant - Whether BMW purchased was not of merchantable quality and unfit for use - Whether all plaintiff's complaints had been attended to and rectified by 2nd defendant - Whether the car was in good condition and roadworthy after repairs were done
[2011] 1 LNS 814	NORTHPORT (MALAYSIA) BERHAD v. PALMBASE (M) SDN BHD	STATUTORY INTERPRETATION: Amending legislation - Application and implementation of amendments in P.U. (A) 457/1997 and P.U. (A) 261/2000 - Construction of legislation and subsidiary legislation - Whether the Ports (Privatization) Act 1990 (Act 422) was in plain language, free from ambiguity, inconsistency or absurdity and reflected the policy behind its making - Whether Act 422 clearly demarcated the powers, functions and duties of the Kelang Port Authority ("KPA") and those of the plaintiff as the licensed operator - Whether plaintiff responsible for the operation and management of Port Kelang - Whether KPA retained regulatory functions to oversee the conduct of port activities and running of port facilities and services by plaintiff - Whether intention of legislature that KPA's regulatory functions be distinct from plaintiff's functions and duties under the Act, any subsidiary legislation or the Privatization Agreement - Whether Act 422 conferred plaintiff full operational flexibility in managing and operating Port Kelang to achieve its commercial ends - Whether included allowing the assigning of any wharf to be used for any of its cargoes, be they dry bulk or others - Whether KPA's acts infringed the powers prescribed by Act 422, and were not binding on plaintiff - Whether plaintiff had independent authority to designate or assign any of its terminals/wharves including wharf no. 15 as a terminal/wharf discharging dry bulk cargo at all material times STATUTORY INTERPRETATION: Canons of construction - Specialia generalibus derogant - Whether KPA relinquished its functions in the operation and management of Port Kelang to plaintiff when the Privatization Agreement was entered into - Whether KPA authorised or still reserved authority to unilaterally dictate and direct plaintiff to regard defendant's cargo as being exempt from levy of the increased tariff for dry bulk cargo - "in addition to the powers conferred, and the functions and duties imposed upon it by any written law" - Whether provisions of Act 422 pertaining to plaintiff's functions and duties prevailed over whatever powers, functions and duties KPA may have derived from other laws pertaining to the operation and management of Port Kelang STATUTORY INTERPRETATION: Amending legislation - Effect of - Whether amendment in P.U. (A) 457/1997 and P.U.(A) 261/2000 applied only to designated dry bulk terminals or to all or to any other terminals used in the export of dry bulk cargo such as palm kernel expellers handled by defendant - Whether amendments were indistinct, ambiguous or tainted with ambiguity - Whether words "receiving dry bulk cargo at Dry Bulk Terminal" and application of definition of "Dry Bulk Terminal" aptly described activities of defendant - Wharf no. 15 all the while used by defendant to discharge its dry bulk cargoes- Whether Wharf 15 deemed to operate as a dry bulk terminal and should be treated as such in the levying of charges

CLJ 2013 Volume 7 (Part 1)

COURT

SC India

Ghulam Nabi Dar And Others v. State Of Jammu And Kashmir And Others
Altamas Kabir CJ, SS Nijjar, J Chelameswar JJ
(Administrative Law; Civil Procedure - Human and Civil Rights - Displaced Persons and Refugees) [2013] 7 CLJ 1 [SC India]

FEDERAL COURT

Ajwa For Food Industries Co (Migop), Egypt v. Pacific Inter-Link Sdn Bhd
Zulkefli Makinudin CJ (Malaya), Richard Malanjum CJ (Sabah & Sarawak), Suriyadi Halim Omar, Hasan Lah, Zaleha Zahari FCJJ
(Arbitration; Contract - Arbitral tribunal - Jurisdiction) [2013] 7 CLJ 18 [FC]

COURT OF APPEAL

Fauziah Ismail & Ors v. Lazim Kanan & Orang-Orang Yang Tidak Diketahui
Ramly Ali, Mohtarudin Baki, Mah Weng Kwai JJCA
(Land Law - Malay reservations - Dealings in reservation land) [2013] 7 CLJ 37 [CA]

Seetha Vijayaratnam v. Vicknesh Visvalingam
Sulong Matjeraie, Hishamudin Mohd Yunus, Abdul Wahab Patail JJCA
(Family Law - Financial obligation - Maintenance - Application for variation of order) [2013] 7 CLJ 53 [CA]

HIGH COURT

Haris Arman v. Berjaya TS Management Sdn Bhd & Anor
Lau Bee Lan J
(Tort - Negligence - Damages - Claim for - Volenti non fit injuria - Whether maxim ex turpi causa non oritur actio absolved defendant of liability) [2013] 7 CLJ 68 [HC]

Indira Gandhi Mutho v. Pengarah Jabatan Agama Islam Perak & Ors
Lee Swee Seng JC
(Civil Procedure; Islamic Law - Conversion of minor children to Islam - Whether conversion breached art. 11 of the Federal Constitution and rules of natural justice) [2013] 7 CLJ 82 [HC]

Kamsinah Karim v. ACP Kamarudin A Aziz (Pengerusi Lembaga Tatatertib Polis Johor) & Ors
Gunalan Muniandy JC
(Civil Procedure; Constitutional Law; Criminal Procedure; Police - Public servants - Dismissal of police constable) [2013] 7 CLJ 127 [HC]

SUBJECT INDEX

ADMINISTRATIVE LAW

Human and Civil Rights - Displaced Persons and Refugees - Evacuee property - Declaration of parcel of land as evacuee property - Applicability of principles of natural justice - Where notification issued by Custodian under s. 6 of J&K State Evacuees' (Administration of Property) Act, 2006 (6 of 2006 Smvt.) (1949 AD) declared parcel of land in possession of a person to be evacuee property vesting in Custodian, without affording him opportunity to show that he was not mere occupant of the property but tenant thereof and thus outside scope of Rr. 9 and 13-C of 2008 Rules - Held, such declaration stood vitiated for violation of principles of natural justice and administrative fair play - J&K State Evacuees' (Administration of Property) Act, 2006 (6 of 2006 Smvt.) (1949 AD) - Sections 6(1) & (2) and 16 - J&K State Evacuees' (Administration of Property) Rules, 2008 Smvt. (1951 AD) - Rr. 9 and 13-C - Administrative Law - Natural Justice - Fairness in Action/Wednesbury Principle - Fairness in action - Constitution of India, Art. 300-A
Ghulam Nabi Dar And Others v. State Of Jammu And Kashmir And Others
(Altamas Kabir CJ, SS Nijjar, J Chelameswar J) [2013] 7 CLJ 1 [SC India]

ARBITRATION

Arbitral tribunal - Jurisdiction - Award - Setting aside - Parties entered into sales contracts - Reliance on standard terms and conditions of sale ("STC") - Whether parties agreed to refer disputes to arbitration - Whether terms incorporated in STC - Written agreement to refer disputes in question for arbitration - Whether existed - Whether arbitration agreement signed by parties - Whether enforceable - Previous conducts and transactions between parties - Whether imputed knowledge of provisions in STC - Whether court interfered with tribunal's findings of facts - Arbitration Act 2005, s. 9(3), (4) & (5)
Ajwa For Food Industries Co (Migop), Egypt v. Pacific Inter-Link Sdn Bhd
(Zulkefli Makinudin CJ (Malaya), Richard Malanjum CJ (Sabah & Sarawak) Suriyadi Halim Omar, Hasan Lah, Zaleha Zahari FCJJ) [2013] 7 CLJ 18 [FC]

CIVIL PROCEDURE

Certiorari - Application for - Dismissal of police constable from police force - Application to quash decision of dismissal - Rules of the High Court 1980, O. 53 - Police constable charged with drug offence - Dangerous Drugs Act 1952, s. 15(1)(a) - Charge dismissed with caution - Criminal Procedure Code, s. 173A(2)(a) - Dismissal from public service on ground of conviction of drug offence - Public Officers (Conduct and Discipline) Regulations 1993, ss. 33(1), 38 - Whether applicant entitled to be summarily dismissed without reasonable opportunity to be heard - Whether dismissal valid and proportionate to misconduct
Kamsinah Karim v. ACP Kamarudin A Aziz (Pengerusi Lembaga Tatatertib Polis Johor) & Ors
(Gunalan Muniandy JC) [2013] 7 CLJ 127 [HC]

Civil Procedure Code, 1908 - Section 89 and Or. 23 R. 3 & Expln. - Settlement of dispute outside court - Validity on facts, and binding effect of settlement - Writ petitioner occupants of land challenging Custodian's order which had declared said land occupied by them to be evacuee property - Single Judge of High Court, by interim order, restraining the parties from raising any construction on that land - Aggrieved thereby Custodian approaching Division Bench of High Court - During pendency of matters, parties reaching an out-of-court settlement in terms whereof occupants surrendered part of land to Custodian and remaining portion was to be settled with occupants - Parties filing said settlement duly signed by them to seek disposal of writ petition accordingly - Custodian thereafter raising construction on that land - Such settlement, in absence of allegation of settlement having been procured by fraud, held, lawful, within scope of Or. 23 R. 3 CPC and not hit by R. 13-C, J&K (AoP) Rules, 2008 - Hence, having been acted upon, it was binding on the parties and Custodian could not unilaterally withdraw from it - J&K State Evacuees' (Administration of Property) Act, 2006 (6 of 2006 Smvt.) (1949 AD) - Section 6 - J&K State Evacuees' (Administration of Property) Rules, 2008 Smvt. (1951 AD) - R. 13-C - Contract Act, 1872 - Sections 10, 14, 23 and 17 - Constitution of India - Arts. 300, 14 and 299 - Government Contracts/Tenders - Out-of-court Settlement - If properly entered into and valid
Ghulam Nabi Dar And Others v. State Of Jammu And Kashmir And Others
(Altamas Kabir CJ, SS Nijjar, J Chelameswar J) [2013] 7 CLJ 1 [SC India]

Jurisdiction - High Court - Interpretation of art. 121(1A) Federal Constitution - Whether subject matter must come within purview of Syariah Courts - Whether a non-muslim applicant had no locus to appear in Syariah Courts - Whether jurisdiction to determine constitutionality of matters fall within purview of High Court and not Syariah Court
Indira Gandhi Mutho v. Pengarah Jabatan Agama Islam Perak & Ors
(Lee Swee Seng JC) [2013] 7 CLJ 82 [HC]

Practice and Procedure - Compromise before High Court - Submission of terms of settlement by both parties but during pendency thereof, seeking of unilateral withdrawal therefrom by one party after having acted thereupon - Not permissible - Civil Procedure Code, 1908, Or. 23 R. 3
Ghulam Nabi Dar And Others v. State Of Jammu And Kashmir And Others
(Altamas Kabir CJ, SS Nijjar, J Chelameswar J) [2013] 7 CLJ 1 [SC India]

CONSTITUTIONAL LAW

Public servants - Dismissal of police constable from police force - Right to be heard - Police constable charged with drug offence - Dangerous Drugs Act 1952, s. 15(1)(a) - Charge dismissed with caution - Criminal Procedure Code, s. 173A(2)(a) - Dismissal from public service on ground of conviction of drug offence - Public Officers (Conduct and Discipline) Regulations 1993, ss. 33(1), 38 - Whether right to be heard as public servant breached - Federal Constitution, arts. 5, 8 and 135
Kamsinah Karim v. ACP Kamarudin A Aziz (Pengerusi Lembaga Tatatertib Polis Johor) & Ors
(Gunalan Muniandy JC) [2013] 7 CLJ 127 [HC]

CONTRACT

Arbitration clause - Incorporation into contract - Reference to document containing arbitration agreement or clause - Whether agreement meets writing requirement - Whether reference made clause part of agreement - Whether document referred to needs to be signed - Whether incorporation by notice in document sufficient - Arbitration Act 2005, s. 9(3), (4) & (5)
Ajwa For Food Industries Co (Migop), Egypt v. Pacific Inter-Link Sdn Bhd
(Zulkefli Makinudin CJ (Malaya), Richard Malanjum CJ (Sabah & Sarawak) Suriyadi Halim Omar, Hasan Lah, Zaleha Zahari FCJJ) [2013] 7 CLJ 18 [FC]

Terms - Arbitration clause - Reference to document - Whether formal agreement must be executed by parties - Whether sufficient as long as arbitration agreement incorporated into written document - Whether reference made clause part of agreement - Whether incorporation by notice in document sufficient - Whether lack of signature invalidated contract - Arbitration Act 2005, s. 9(3), (4) & (5)
Ajwa For Food Industries Co (Migop), Egypt v. Pacific Inter-Link Sdn Bhd
(Zulkefli Makinudin CJ (Malaya), Richard Malanjum CJ (Sabah & Sarawak) Suriyadi Halim Omar, Hasan Lah, Zaleha Zahari FCJJ) [2013] 7 CLJ 18 [FC]

CRIMINAL PROCEDURE

Charge - Dismissal of charge with caution - Whether could be construed as conviction - Whether dismissal void for unreasonableness and not proportionate to misconduct - Interpretation of order of Magistrate in dismissing charge with caution - Whether to mean "conviction" - Strict requirements of summary trials - Whether complied with - Criminal Procedure Code, s. 173
Kamsinah Karim v. ACP Kamarudin A Aziz (Pengerusi Lembaga Tatatertib Polis Johor) & Ors
(Gunalan Muniandy JC) [2013] 7 CLJ 127 [HC]

FAMILY LAW

Financial obligation - Maintenance - Application for variation of order - Whether there was misrepresentation of facts at maintenance proceedings - Whether delay in application fatal - Whether lack of explanation rendered application not bona fide - Law Reform (Marriage and Divorce) Act 1976, s. 83 - Married Woman and Children (Maintenance) Act 1950, s. 3
Seetha Vijayaratnam v. Vicknesh Visvalingam
(Sulong Matjeraie, Hishamudin Mohd Yunus, Abdul Wahab Patail JJCA) [2013] 7 CLJ 53 [CA]

Financial obligation - Maintenance - Maintenance order granted by Magistrate's Court - Application for variation of order - Law Reform (Marriage and Divorce) Act 1976, s. 83 - Whether there was misrepresentation of facts on wife's part when making application maintenance - Reduction in maintenance payment allowed by High Court - Appeal against decision - Whether application under s. 83 an abuse of process of court - Whether allows party to seek review of decision that had already been made - Whether appellate intervention warranted - Married Woman and Children (Maintenance) Act 1950, s. 3
Seetha Vijayaratnam v. Vicknesh Visvalingam
(Sulong Matjeraie, Hishamudin Mohd Yunus, Abdul Wahab Patail JJCA) [2013] 7 CLJ 53 [CA]

LAND LAW

Malay reservations - Dealings in reservation land - Land held by non-Malay - Meaning of 'Malay' - Whether Malay Reserve Land could be sold to non-Malay or non-citizen - Claim that Malay Reserve Land bought from Malay owner - Occupant Indonesian at time of purchase and later became Malaysian citizen - Whether occupant considered non-Malay and non-citizen of Malaya at material time - Whether sale and purchase agreement relied upon by occupant to prove claim to land void ab initio and unenforceable - Malay Reservation Enactment (FMS Cap 142), ss. 8(1)& 19
Fauziah Ismail & Ors v. Lazim Kanan & Orang-Orang Yang Tidak Diketahui
(Ramly Ali, Mohtarudin Baki, Mah Weng Kwai JJCA) [2013] 7 CLJ 37 [CA]

POLICE

Disciplinary proceedings - Dismissal - Dismissal of police constable from Royal Malaysian Police force - Police constable charged with drug offence - Dangerous Drugs Act 1952, s. 15(1)(a) - Charge dismissed with caution - Whether could be construed as conviction - Criminal Procedure Code, s. 173A(2)(a) - Dismissal from public service on ground of conviction of drug offence - Public Officers (Conduct and Discipline) Regulations 1993, ss. 33(1), 38
Kamsinah Karim v. ACP Kamarudin A Aziz (Pengerusi Lembaga Tatatertib Polis Johor) & Ors
(Gunalan Muniandy JC) [2013] 7 CLJ 127 [HC]

ISLAMIC LAW

Conversion - Conversion of minor children to Islam - Whether conversion to Islam of minor children by converted parent without consent of non-converted parent unconstitutional, null and void - Whether s. 96(1) of Administration of the Religion of Islam (Perak) Enactment 2004 concerning requirements for valid conversion complied with - Whether conversion breached art. 11 of Federal Constitution and rules of natural justice
Indira Gandhi Mutho v. Pengarah Jabatan Agama Islam Perak & Ors
(Lee Swee Seng JC) [2013] 7 CLJ 82 [HC]

TORT

Negligence - Damages - Claim for - Deceased died after falling from "exhaust room" on 7th floor of defendant's premises - Whether defendant negligent in failure to lock room or provide proper signage - Whether deceased trespassed into exhaust room - Whether defendants absolved of liability
Haris Arman v. Berjaya TS Management Sdn Bhd & Anor
(Lau Bee Lan J) [2013] 7 CLJ 68 [HC]

Negligence - Trespasser - Deceased died after falling from "exhaust room" on 7th floor of defendant's premises - Whether deceased trespassed into exhaust room - Whether deceased's act of trespass negligent, unreasonable, reckless and unforeseeable - Whether maxim ex turpi causa non oritur actio absolved defendant of liability
Haris Arman v. Berjaya TS Management Sdn Bhd & Anor
(Lau Bee Lan J) [2013] 7 CLJ 68 [HC]

Negligence - Volenti non fit injuria - Deceased died after falling from "exhaust room" on 7th floor of defendant's premises - Whether deceased trespassed into exhaust room - Whether deceased understood risk of injury and assumed responsibility for risk - Whether defence of volenti non fit injuria applicable
Haris Arman v. Berjaya TS Management Sdn Bhd & Anor
(Lau Bee Lan J) [2013] 7 CLJ 68 [HC]

CLJ 2013 Volume 7 (Part 2)

COURT

COURT OF APPEAL

PP lwn. Zul Hassan & Yang Lain
Raus Sharif PMR, Mohtarudin Baki, Mohd Zawawi Salleh HHMR
(Keterangan; Undang-Undang Jenayah - Agen provokatur - Kebolehterimaan keterangan - Dengar cakap - Rasuah - Sama ada penerimaan dan pemberian secara rasuah dibuktikan) [2013] 7 CLJ 141 [CA]

HIGH COURT

Chang Chai Choi v. PP
Ravinthran Paramaguru JC
(Criminal Law; Evidence - Anti-Trafficking In Persons And Anti-Smuggling of Migrants Act 2007 - Sanction to prosecute - Witness - Corroboration) [2013] 7 CLJ 166 [HC]

Devadass Raju v. Tham Soon Kum & Ors
Suraya Othman J
(Damages - Personal injuries - Permanent disabilities - Award) [2013] 7 CLJ 178 [HC]

Dr Ismail Abdul Hamid & Anor v. Dr Mohd Khairy Yakub & Ors
Siti Khadijah S Hassan Badjenid JC
(Professions; Tort - Medical practitioners - Conspiracy - Removal from medical profession) [2013] 7 CLJ 192 [HC]

Hong Leong Bank Bhd v. HGM Machinery Sdn Bhd & Ors
Zakaria Sam J
(Contract - Guarantee - Guarantor - Liability) [2013] 7 CLJ 205 [HC]

JHW Reels Sdn Bhd v. Syarikat Borcos Shipping Sdn Bhd
Mohamad Ariff Yusof J
(Arbitration; Statutory Interpretation; Words & Phrases - Award - Setting Aside - Construction Of Statutes) [2013] 7 CLJ 249 [HC]

Luckypick Enterprise Sdn Bhd v. PP
Ravinthran Paramaguru JC
(Criminal Law; Criminal Procedure - Operation of lottery premises without license - Powers of Magistrate to issue summons) [2013] 7 CLJ 258 [HC]

Reza Kianmehr v. PP
Kamardin Hashim J
(Criminal Law; Criminal Procedure - Forfeiture - Powers of Magistrate) [2013] 7 CLJ 265 [HC]

SUBJECT INDEX

ARBITRATION

Award - Setting aside - Application for - Leave to file application outside time limit - Reasons for delay - Whether extension could be allowed - Whether time limit prescribed under s. 37(4) Arbitration Act 2005 mandatory - Whether words "may not" in s. 37(4) to be read as "must" or "shall"
JHW Reels Sdn Bhd v. Syarikat Borcos Shipping Sdn Bhd
(Mohamad Ariff Yusof J) [2013] 7 CLJ 249 [HC]

CONTRACT

Guarantee - Demand for payment - Whether bank only required to show that demand to guarantor was properly sent - Whether presumption of service operated once demand was duly posted - Whether 'principal debtor' clause in guarantee obviated need for demand to be made before action filed - Discharge of any one of several guarantors - Whether automatically discharged others - Contracts Act 1950, s. 91
Hong Leong Bank Bhd v. HGM Machinery Sdn Bhd & Ors
(Zakaria Sam J) [2013] 7 CLJ 205 [HC]

Guarantee - Guarantor - Liability - One of several guarantors discharged as guarantor - Whether discharge amounted to breach of terms and conditions of guarantee - Whether other guarantors similary discharged - Contracts Act 1950, s. 91
Hong Leong Bank Bhd v. HGM Machinery Sdn Bhd & Ors
(Zakaria Sam J) [2013] 7 CLJ 205 [HC]

CRIMINAL LAW

Anti-Trafficking In Persons And Anti-Smuggling of Migrants Act 2007 - Section 13 - Appeal against conviction and sentence - Whether sanction to prosecute must be recorded in notes of proceedings - Whether prosecuting officer authorised to prosecute - Whether charge defective and lacked particulars - Whether evidence given by victims had to be corroborated - Criminal Procedure Code, ss. 154, 156
Chang Chai Choi v. PP
(Ravinthran Paramaguru JC) [2013] 7 CLJ 166 [HC]

Forfeiture - Powers of Magistrate - Order for forfeiture of vehicle - Offence of operating public service vehicle without licence - Whether forfeiture mandatory under s. 80(4) Land Public Transport Act 2010 - Whether evidence adduced as to identity of person who seized vehicle - Whether seizure of vehicle exceeded period allowed under s. 80(5) Land Public Transport Act 2010 - Whether Magistrate erred in ordering forfeiture of vehicle - Criminal Procedure Code, s. 136(1) - Land Public Transport Act 2010, ss. 16(5), 80(1)
Reza Kianmehr v. PP
(Kamardin Hashim J) [2013] 7 CLJ 265 [HC]

Offences - Operation of lottery premises without license - Local Authorities Ordinance 1996, ss. 153, 161B - Contravention of by-laws of Kuching Municipal Council - Application to quash summons issued by Magistrate - Whether there was suppression of material facts in prosecution's complaint - Whether Magistrate had sufficient grounds to issue summons - Criminal Procedure Code, s. 136
Luckypick Enterprise Sdn Bhd v. PP
(Ravinthran Paramaguru JC) [2013] 7 CLJ 258 [HC]

CRIMINAL PROCEDURE

Forfeiture - Powers of Magistrate - Order for forfeiture of vehicle - Offence of operating public service vehicle without licence - Whether forfeiture mandatory under s. 80(4) Land Public Transport Act 2010 - Whether evidence adduced as to identity of person who seized vehicle - Whether seizure of vehicle exceeded period allowed under s. 80(5) Land Public Transport Act 2010 - Whether Magistrate erred in ordering forfeiture of vehicle - Criminal Procedure Code, s. 136(1) - Land Public Transport Act 2010, ss. 16(5), 80(1)
Reza Kianmehr v. PP
(Kamardin Hashim J) [2013] 7 CLJ 265 [HC]

Jurisdiction of court - Magistrate's Court - Powers of Magistrate - Application to quash summons issued by Magistrate - Whether there was suppression of material facts in prosecution's complaint - Sufficiency of grounds - Whether Magistrate had sufficient grounds to issue summons - Criminal Procedure Code, s. 136 - Local Authorities Ordinance 1996, ss. 153, 161B
Luckypick Enterprise Sdn Bhd v. PP
(Ravinthran Paramaguru JC) [2013] 7 CLJ 258 [HC]

DAMAGES

Personal injuries - Permanent disabilities - Award - Appeal against - Cost of hiring helper or maid - Whether services of helper or maid required - Whether proven - Whether court could award costs for services rendered by family member
Devadass Raju v. Tham Soon Kum & Ors
(Suraya Othman J) [2013] 7 CLJ 178 [HC]

Personal injuries - Permanent disabilities - Whether second plaintiff fully incapacitated - Managed to secure another job six months after accident - Whether to be considered by court in awarding realistic and reasonable award - Whether award by Sessions Judge excessive
Devadass Raju v. Tham Soon Kum & Ors
(Suraya Othman J) [2013] 7 CLJ 178 [HC]

EVIDENCE

Witness - Corroboration - Witnesses were victims in offence under s. 13 of the Anti-Trafficking In Persons And Anti-Smuggling Of Migrants Act 2007 - Whether testimony must be corroborated
Chang Chai Choi v. PP
(Ravinthran Paramaguru JC) [2013] 7 CLJ 166 [HC]

PROFESSIONS

Medical practitioners - Removal from Register of Medical Practitioners - Whether conspiracy to injure - Whether agreement to conspire to injure proven
Dr Ismail Abdul Hamid & Anor v. Dr Mohd Khairy Yakub & Ors
(Siti Khadijah S Hassan Badjenid JC) [2013] 7 CLJ 192 [HC]

STATUTORY INTERPRETATION

Construction of statutes - Intention of Parliament - Use of words "may not" as opposed to "shall" in s. 37(4) Arbitration Act 2005 - Whether mandatory or merely directory - Whether words "may not" in s. 37(4) to be read as "must" or "shall"
JHW Reels Sdn Bhd v. Syarikat Borcos Shipping Sdn Bhd
(Mohamad Ariff Yusof J) [2013] 7 CLJ 249 [HC]

TORT

Conspiracy - Agreement to act in concert - Plaintiffs medical doctors registered with Malaysian Medical Council ('MMC') - Removal from medical profession - Whether agreement to conspire to injure proven - Whether objects and means of conspiracy to injure sufficiently pleaded
Dr Ismail Abdul Hamid & Anor v. Dr Mohd Khairy Yakub & Ors
(Siti Khadijah S Hassan Badjenid JC) [2013] 7 CLJ 192

WORDS & PHRASES

"may not" - Arbitration Act 2005, r. 37(4) - Wording of - Whether mandatory or merely directory - Whether to be read as "must" or "shall"
JHW Reels Sdn Bhd v. Syarikat Borcos Shipping Sdn Bhd
(Mohamad Ariff Yusof J) [2013] 7 CLJ 249 [HC]

INDEKS PERKARA

KETERANGAN

Agen provokatur - Kebolehterimaan keterangan - Sama ada keterangan sokongan diperlukan - Akta Pencegahan Rasuah 1997, s. 44(1)(b)
PP lwn. Zul Hassan & Yang Lain
(Raus Sharif PMR, Mohtarudin Baki, Mohd Zawawi Salleh HHMR) [2013] 7 CLJ 141 [CA]

Dengar cakap - Perbualan telefon - Sama ada perbualan telefon yang dipintas oleh pihak pendakwaan boleh diterima - Sama ada undang-undang lazim terpakai bagi keterangan perbualan telefon - Sama ada keterangan boleh diterima tanpa perakuan Pendakwa Raya - Akta Pencegahan Rasuah 1997, s. 39(4)
PP lwn. Zul Hassan & Yang Lain
(Raus Sharif PMR, Mohtarudin Baki, Mohd Zawawi Salleh HHMR) [2013] 7 CLJ 141 [CA]

Kebolehterimaan - Dengar cakap - Sama ada keterangan saksi yang telah meninggal dunia boleh diterima - Sama ada keterangan untuk membuktikan kebenaran kenyataan
PP lwn. Zul Hassan & Yang Lain
(Raus Sharif PMR, Mohtarudin Baki, Mohd Zawawi Salleh HHMR) [2013] 7 CLJ 141 [CA]

UNDANG-UNDANG JENAYAH

Rasuah - Penerimaan wang rasuah - Sama ada terpakai - Anggapan statutori di bawah s. 42 Akta Pencegahan Rasuah 1997 - Sama ada penerimaan dan pemberian secara rasuah dibuktikan - Sama ada intipati-intipati s. 10(a)(aa) Akta Pencegahan Rasuah 1997 dibuktikan - Sama ada keputusan hakim bicara wajar diganggu
PP lwn. Zul Hassan & Yang Lain
(Raus Sharif PMR, Mohtarudin Baki, Mohd Zawawi Salleh HHMR) [2013] 7 CLJ 141 [CA]