Legal Network Series

[2010] 1 LNS 147	A JAYAGOPAL v. KETUA SETIAUSAHA & ORS	CIVIL PROCEDURE: Injunction - Application for - Temporary injunction - Against the contractor pending decision of the Ministry of Youth & Sports to amend building plans of the electrical substation - No further order sought to compel land-owners to stop building the substation nor any other related suit pending - Whether injunction sought was silent as to what 'contractor' was expected to do - Whether contractor against whom injunction was sought would be perplexed as to what he was required to do or refrain from doing - Whether plaintiff had shown he had a legal or equitable right to enforce by way of injunction or declaration LAND LAW: Easement - Acquisition by prescription - Whether right of easement breached - Purported agreement reached between previous temple management and KBS as to the temple devotees' use of the KBS land - Whether plaintiff entitled to presume there was an easement merely because the devotees had long been allowed to use the adjacent land - Whether contrary to the National Land Code 1965, s. 284(1) - Whether plaintiff's case sustainable
[2010] 1 LNS 148	KUIK KEAN HEANG & ANOR v. TEOH SWEE HOCK & ANOR	CIVIL PROCEDURE: Appeal - Appeal against decision of Sessions Court - Appeal to High Court - Road accident - Appeal against liability and quantum - 1st defendant absent and no defence version in evidence - Whether trial judge erred in finding she was confronted with 2 conflicting versions and had to decide which version was more probable after taking into account the physical evidence and other silent evidence - Whether trial judge made findings against the weight of evidence - Whether finding of trial court on liability should be set aside - Whether any reason to disturb findings of the trial judge on quantum
[2010] 1 LNS 150	OOI EIK HONG v. LEMBAGA PEMBANGUNAN LANGKAWI (LADA) & ANOR	LAND LAW: Caveats - Removal of - Application for - Whether house in question was purchased for 1st defendant by Penpen Sdn Bhd - No evidence of any action being taken against Penpen for breach of contract to transfer the property to it - Whether 1st defendant had a caveatable interest in the land that entitled it to lodge a caveat - Whether any serious issue to be tried - Balance of convenience - Delay of 14 years before 1st defendant took action to protect its interest - Whether 1st defendant's interest, if any, deferred to that of the plaintiff's - Whether balance of convenience with 1st defendant or plaintiff
[2011] 1 LNS 51	GPA PLASTIC INDUSTRIES SDN BHD v. MAHKAMAH PERUSAHAAN MALAYSIA & ANOR	ADMINISTRATIVE LAW: Judicial review - Application for - Certiorari - Finding that transfer of 2nd respondent was a demotion amounting to a fundamental breach of 2nd respondent's contract of employment - Whether Industrial Court failed to consider that reason for transfer was legitimate given that applicant was unable to fill vacancy of store executive for five months - Whether Industrial Court failed to take into account 2nd respondent's testimony which showed the real reason why he refused the transfer - Whether Industrial Court failed to draw the proper inferences from the unchallenged evidence and/or admitted facts - Whether Industrial Court also failed to consider 2nd respondent's admission that he secured new employment after claiming constructive dismissal - Whether a reasonable tribunal faced with the same facts and evidence would have come to a similar conclusion as the Industrial Court - Whether Industrial Court committed errors of law which warranted intervention
[2011] 1 LNS 815	NIK RADIAH NIK HASSAN v. MALAYSIAN INDUSTRIAL DEVELOPMENT FINANCE BERHAD	COMPANY LAW: Charges - Land - Sale by chargee - Lodgment of form with Suruhanjaya Syarikat Malaysia (SSM) that debt "fully satisfied - Whether there was a debt due and owing by judgment debtor - Whether judgment creditor statutorily obliged to inform SSM once charge was released by auction and/or payment and also file necessary form to reflect the status - Whether such statement only stated that charge had been fully satisfied - Whether meant that judgment debtor was not liable

CLJ 2013 Volume 7 (Part 3)

COURT

COURT OF APPEAL

Mohamed Azahari Matiasin v. GBB Nandy & Ors
Hishamudin Mohd Yunus, Azahar Mohamed, Balia Yusof Wahi JJCA
(Legal Profession; Statutory Interpretation - Practice of law - Representation by Kuala Lumpur lawyer in arbitration proceedings in Sabah) [2013] 7 CLJ 277 [CA]

HIGH COURT

Datuk Bandar Kuala Lumpur v. Rijal Securities Services Sdn Bhd
Asmabi Mohamad JC
(Contract - Breach - Agreement to provide security services - Damages) [2013] 7 CLJ 285 [HC]

Dr Chan Choo Lip & Anor v. Joseph Loi Lik King & Ors
Rhodzariah Bujang J
(Damages; Evidence; Tort - Malicious prosecution - Element of action - Whether elements of malicious prosecution established) [2013] 7 CLJ 301 [HC]

Pacific Inter-Link Sdn Bhd v. Wilmar Trading Pte Ltd & Ors
Lim Yee Lan J
(Contract; Civil Procedure - Lock-out agreement - Enforceability) [2013] 7 CLJ 312 [HC]

PP v. Ahmad Abdul Rashid
Mohd Zaki Wahab JC
(Criminal Law; Evidence - Penal Code - Section 199 - Making of false statement in statutory declaration) [2013] 7 CLJ 359 [HC]

PP v. Ogujiofor Frank Chike
Ahmadi Asnawi J
(Criminal Law - Dangerous Drugs Act 1952 - Section 39B(1)(a) - Trafficking in 1,463g of methamphetamine - Possession and knowledge) [2013] 7 CLJ 370 [HC]

Syarikat Sesco Bhd v. Yu Thian Motor Services Sdn Bhd
Rhodzariah Bujang J
(Public Utilities; Tort - Occupier's liability - Duty of occupier - Tampering of electricity meter) [2013] 7 CLJ 393 [HC]

Tan Thean Chooi v. Kuwait Finance House (Malaysia) Bhd & Another Case
Mohd Amin Firdaus JC
(Bankruptcy - Notice - Setting aside - Application for - Calculation of judgment sum in bankruptcy notice) [2013] 7 CLJ 404 [HC]

SUBJECT INDEX

BANKRUPTCY

Notice - Setting aside - Application for - Calculation of judgment sum in bankruptcy notice - Whether ought to be quantified up to date of issue of bankruptcy notice - Whether 'interest' in s. 3(1)(i) Bankruptcy Act 1967 applicable to final judgment arising from Islamic banking facilities - Whether notice valid - Bankruptcy Rules 1969, r. 66 - Rules of the High Court 1980, O. 13 r. 1(1)
Tan Thean Chooi v. Kuwait Finance House (Malaysia) Bhd & Another Case
(Mohd Amin Firdaus JC) [2013] 7 CLJ 404 [HC]

Notice - Setting aside - Application for - Judgment creditor obtained judgment in default of appearance - Whether judgment final - Whether judgment debtor failed to prove existence of counterclaim, set off or cross demand - Rules of the High Court 1980, O. 13 r. 1(1) - Bankruptcy Rules 1969, r. 66 - Bankruptcy Act 1967, s. 3(1)(i)
Tan Thean Chooi v. Kuwait Finance House (Malaysia) Bhd & Another Case
(Mohd Amin Firdaus JC) [2013] 7 CLJ 404 [HC]

Notice - Setting aside - Application for - Service - Service of notice on Saturday - Whether bad service - Whether in violation of r. 66, Bankruptcy Rules 1969 - Rules of the High Court 1980, O. 13 r. 1(1) - Bankruptcy Act 1967, s. 3(1)(i)
Tan Thean Chooi v. Kuwait Finance House (Malaysia) Bhd & Another Case
(Mohd Amin Firdaus JC) [2013] 7 CLJ 404 [HC]

CIVIL PROCEDURE

Pleadings - Striking out - Whether action disclosed reasonable cause of action, frivolous, vexatious and an abuse of process of court - Whether weak case ground to strike out pleading - Effect of failure to plead predominant intent to injure and particulars of unlawful means to insert impugned clause - Whether failure to plead ingredients to establish conspiracy fatal - Whether failure to plead material facts and particulars in statement of claim curable by process of discovery
Pacific Inter-Link Sdn Bhd v. Wilmar Trading Pte Ltd & Ors
(Lim Yee Lan J) [2013] 7 CLJ 312 [HC]

CONTRACT

Breach - Agreement to provide security services - Damages - Failure to provide security services resulting in loss of fittings - Termination of service - Liability for missing fittings - Consideration of - Whether termination of service lawful
Datuk Bandar Kuala Lumpur v. Rijal Securities Services Sdn Bhd
(Asmabi Mohamad JC) [2013] 7 CLJ 285 [HC]

Lock out agreement - Enforceability - Whether clauses restricted plaintiff from trading - Whether predominant intention of lock out clause to injure plaintiff - Whether plaintiff suffered loss as a result of lock out clause
Pacific Inter-Link Sdn Bhd v. Wilmar Trading Pte Ltd & Ors
(Lim Yee Lan J) [2013] 7 CLJ 312 [HC]

CRIMINAL LAW

Dangerous Drugs Act 1952 - Section 39B(1)(a) - Trafficking in 1,463g of methamphetamine - Whether prima facie case established - Possession and knowledge - Whether accused had custody and control of luggage containing drugs - Whether accused in mere passive physical possession of drugs - Whether provision under s. 37(d) of Dangerous Drugs Act 1952 applicable - Whether accused's conduct could lead to inference that he was trafficking in drugs - Whether defence posited by accused created reasonable doubt upon prosecution's case - Whether accused failed to rebut statutory presumption invoked against him - Criminal Procedure Code, s. 51A(1)(c)
PP v. Ogujiofor Frank Chike
(Ahmadi Asnawi J) [2013] 7 CLJ 370 [HC]

Penal Code - Section 199 - Making of false statement in statutory declaration - Ingredients of offence - Whether making of declaration proven - Whether receivable as evidence - Whether r. 13, Commissioner for Oaths Rules 1993 contravened - Whether prima facie case established - Statutory Declaration Act 1960
PP v. Ahmad Abdul Rashid
(Mohd Zaki Wahab JC) [2013] 7 CLJ 359 [HC]

DAMAGES

Assessment - Loss - Clinic raided by enforcement officers - Seizure of psychotropic medicines not listed in clinic's record book - Contravention of Poisons (Psychotropic Substances) Regulations 1989 - Press conference held by Deputy Director of Health (Pharmacy) Sarawak - Press conference published in newspaper - Whether clinic and doctor's reputation tarnished - Whether resulted in loss of corporate clients
Dr Chan Choo Lip & Anor v. Joseph Loi Lik King & Ors
(Rhodzariah Bujang J) [2013] 7 CLJ 301 [HC]

EVIDENCE

Burden of proof - Malicious prosecution - Clinic raided by enforcement officers - Whether raid prompted by public tip off and surveillance or driven by malicious intent - Whether enforcement officer had ill-will against doctor - Whether there was history of relationship that could breed feelings of malice between parties
Dr Chan Choo Lip & Anor v. Joseph Loi Lik King & Ors
(Rhodzariah Bujang J) [2013] 7 CLJ 301 [HC]

Statutory declaration as evidence - False declaration - Penal Code, s. 199 - Requirements of - Whether satisfied - Whether proven to be declaration under Statutory Declaration Act 1960 - Whether receivable as evidence - Whether r. 13 Commissioner for Oaths Rules 1993 contravened - Whether prima facie case established
PP v. Ahmad Abdul Rashid
(Mohd Zaki Wahab JC) [2013] 7 CLJ 359 [HC]

LEGAL PROFESSION

Practice of law - Right of audience - Representation by Kuala Lumpur lawyer in arbitration proceedings in Sabah - Whether s. 8(1) of Advocates Ordinance 1953 (Sabah Cap. 2) excludes representation by foreign lawyers - Whether only members of Sabah Bar have exclusive right of representation at arbitration proceedings in Sabah - Advocates Ordinance 1953 (Sabah Cap. 2), s. 2
Mohamed Azahari Matiasin v. GBB Nandy & Ors
(Hishamudin Mohd Yunus, Azahar Mohamed Balia Yusof Wahi JJCA) [2013] 7 CLJ 277 [CA]

PUBLIC UTILITIES

Electricity - Supply and consumption - Tampering of meter - Under recording of actual consumption - Arrears of electricity consumption - Claim for - Duty to ensure full understanding of terms and conditions before signing of contract for supply of electricity - Whether there was a corresponding duty on consumer to not simply sign without understanding what he was signing - Signing without understanding document's content - Whether form of negligence - Whether inspection of meter had to be conducted by gazetted inspectors - Whether contract for electricity supply admissible - Electricity Ordinance, s. 33A
Syarikat Sesco Bhd v. Yu Thian Motor Services Sdn Bhd
(Rhodzariah Bujang J) [2013] 7 CLJ 393 [HC]

STATUTORY INTERPRETATION

Construction of statute - Aids to construction - "exclusive right to practice in Sabah" - Whether s. 8(1) of Advocates Ordinance 1953 (Sabah Cap. 2) excludes representation by foreign lawyers other than members of Sabah Bar - Whether advocates of Sabah denied exclusive right of representation at arbitration proceedings in Sabah - Advocates Ordinance 1953 (Sabah Cap. 2), s. 2
Mohamed Azahari Matiasin v. GBB Nandy & Ors
(Hishamudin Mohd Yunus, Azahar Mohamed| Balia Yusof Wahi JJCA) [2013] 7 CLJ 277 [CA]

TORT

Malicious prosecution - Element of action - Clinic raided by enforcement officers - Seizure of psychotropic medicines not listed in clinic's record book - Whether prosecution with "intention to carry the law into effect" - Whether elements of malicious prosecution established - Poisons Act 1952
Dr Chan Choo Lip & Anor v. Joseph Loi Lik King & Ors
(Rhodzariah Bujang J) [2013] 7 CLJ 301 [HC]

Occupier's liability - Duty of occupier - Tampering of electricity meter - Claim for arrears - Whether occupier of premises liable in absence of evidence as to who had tempered with meter - Principle of occupier's liability - Whether occupier responsible
Syarikat Sesco Bhd v. Yu Thian Motor Services Sdn Bhd
(Rhodzariah Bujang J) [2013] 7 CLJ 393 [HC]

CLJ 2013 Volume 7 (Part 4)

COURT

FEDERAL COURT

Ritz Garden Hotel (Cameron Highlands) Sdn Bhd v. Balakrishnan Kaliannan
Raus Sharif PCA, Abdull Hamid Embong, Ahmad Maarop, Hasan Lah, Zaleha Zahari FCJJ
(Civil Procedure; Jurisdiction - Pre-judgment interest - Discretion of court - Judgments and orders) [2013] 7 CLJ 413 [FC]

COURT OF APPEAL

Chin Kek Shen v. PP
Mohamed Apandi Ali, Linton Albert, Hamid Sultan Abu Backer JJCA
(Criminal Procedure; Evidence - Recall of witnesses - Discretion of court - Adverse inference) [2013] 7 CLJ 435 [CA]

Komoco Motors Pte Ltd v. Faridah Abdullah
Hishamudin Mohd Yunus, Mah Weng Kwai JJCA, Rohana Yusuf J
(Civil Procedure; Evidence - Tendering of evidence at hearing of appeal - Non-calling of witness) [2013] 7 CLJ 451 [CA]

Tenaga Nasional Bhd v. Kamarstone Sdn Bhd
Hishamudin Mohd Yunus, Balia Yusof Wahi, Aziah Ali JJCA
(Utilities - Electricity - Usage - Claim for amount undercharged) [2013] 7 CLJ 462 [CA]

HIGH COURT

Dato' Ramesh Rajaratham v. Datin Zaleha Abd Rahman & Ors
Abu Bakar Jais JC
(Bankruptcy - Notice - Application to set aside) [2013] 7 CLJ 468 [HC]

Dato' Seri Mohammad Nizar Jamaluddin v. Sistem Televisyen Malaysia Bhd & Anor
Yeoh Wee Siam J
(Tort - Defamation - Libel - Publication in news report - Defences) [2013] 7 CLJ 483 [HC]

Hong Leong Bank Bhd lwn. Law Bee Seng; Soh Lian Hwa (Pihak Ketiga)
Ahmad Nasfy Yasin PK
(Sewa Beli; Kontrak - Pelanggaran perjanjian - Balasan) [2013] 7 CLJ 505 [HC]

Low Sook Yee v. Galaxy Music Sdn Bhd
Hasnah Hashim J
(Equity - Contract - Unconscionable transaction) [2013] 7 CLJ 514 [HC]

SUBJECT INDEX

BANKRUPTCY

Notice - Application to set aside - Proceedings by administrators or beneficiaries - Letter of administration - Whether extraction before commencement of proceedings vital - Whether existence of special circumstances negated need to extract letter of administration - Whether administrators lacked locus standi for failure to extract letter of administration
Dato' Ramesh Rajaratham v. Datin Zaleha Abd Rahman & Ors
(Abu Bakar Jais JC) [2013] 7 CLJ 468 [HC]

Notice - Filing of - Proceedings by administrators or beneficiaries - Want of document - Whether action frustrated - Whether court must give effect to earlier order of court - Whether terms in earlier order of court explicit and certain
Dato' Ramesh Rajaratham v. Datin Zaleha Abd Rahman & Ors
(Abu Bakar Jais JC) [2013] 7 CLJ 468 [HC]

CIVIL PROCEDURE

Appeal - New evidence - Court of Appeal - Tendering of evidence at hearing of appeal - Whether evidence available during trial - Requirements under r. 7(3A)(a) Rules of the Court of Appeal 1994 - Whether satisfied
Komoco Motors Pte Ltd v. Faridah Abdullah
(Hishamudin Mohd Yunus, Mah Weng Kwai JJCA, Rohana Yusuf J) [2013] 7 CLJ 451 [CA]

Interest - Pre-judgment interest - Award of - Pre-judgment interest on monies ordered to be paid - Whether monies debt or damages sought to be recovered - Discretion of court - Whether correctly exercised - Civil Law Act 1956, s. 11
Ritz Garden Hotel (Cameron Highlands) Sdn Bhd v. Balakrishnan Kaliannan
(Raus Sharif PCA, Abdull Hamid Embong, Ahmad Maarop, Hasan Lah, Zaleha Zahari FCJJ) [2013] 7 CLJ 413 [FC]

Judgments and orders - Nature of order - Order for payment of money upon happening of an event after judgment - Whether entitlement to payment only upon happening of event - Whether appellate court erred in ordering interest on monies from date preceding happening of event
Ritz Garden Hotel (Cameron Highlands) Sdn Bhd v. Balakrishnan Kaliannan
(Raus Sharif PCA, Abdull Hamid Embong, Ahmad Maarop, Hasan Lah, Zaleha Zahari FCJJ) [2013] 7 CLJ 413 [FC]

CRIMINAL PROCEDURE

Trial - Recall of witnesses - Application for - Failure of trial judge to allow defence application to recall prosecution witness - Discretion of court - Whether trial judge failed to exercise his discretion judiciously - Whether failure to allow application amounts to mistrial and miscarriage of justice - Whether conviction safe - Criminal Procedure Code, s. 425
Chin Kek Shen v. PP
(Mohamed Apandi Ali, Linton Albert, Hamid Sultan Abu Backer JJCA) [2013] 7 CLJ 435 [CA]

EQUITY

Contract - Unconscionable transaction - Representations made to promote plaintiff as international artist - Payment of money - Unfair and unconscionable transaction - Whether proven - Whether defendant took advantage of plaintiff's weakness - Whether efforts made by defendant to promote plaintiff - Whether communications between parties induced plaintiff to enter agreement - Whether agreement ought to be set aside
Low Sook Yee v. Galaxy Music Sdn Bhd
(Hasnah Hashim J) [2013] 7 CLJ 514 [HC]

EVIDENCE

Adverse inference - Failure of accused to call witness - Whether s. 114(g) Evidence Act 1950 can be invoked against accused - Illian & Anor v. PP - Whether court satisfied that evidence was in existence before invoking adverse inference - Whether s. 114(g) arbitrarily invoked - Whether conviction safe - Federal Constitution, art. 5(1)
Chin Kek Shen v. PP
(Mohamed Apandi Ali, Linton Albert, Hamid Sultan Abu Backer JJCA) [2013] 7 CLJ 435 [CA]

Witness - Non-calling of witness - Documents to be tendered in court contained typographical errors - Whether clarification obtained from relevant parties - Whether relevant parties called as witnesses during trial - Whether documents can be tendered at appellate stage - Rules of the Court of Appeal 1994, r. 7(3A)(a)
Komoco Motors Pte Ltd v. Faridah Abdullah
(Hishamudin Mohd Yunus, Mah Weng Kwai JJCA, Rohana Yusuf J) [2013] 7 CLJ 451 [CA]

JURISDICTION

Court of Appeal - Interest - Award of - Pre-judgment interest on monies ordered to be paid - Whether monies debt or damages sought to be recovered - Discretion of court - Whether correctly exercised - Civil Law Act 1956, s. 11
Ritz Garden Hotel (Cameron Highlands) Sdn Bhd v. Balakrishnan Kaliannan
(Raus Sharif PCA, Abdull Hamid Embong, Ahmad Maarop, Hasan Lah, Zaleha Zahari FCJJ) [2013] 7 CLJ 413 [FC]

TORT

Defamation - Defences of justification, fair comment and qualified privilege - Publication in news report - Tweets in Twitter account - Allegations against Sultan of Johor - Whether defendants proven that plaintiff made such allegations - Whether any reasonable man would conclude that plaintiff's tweet messages indirectly hinted on Sultan of Johor - Whether defences established
Dato' Seri Mohammad Nizar Jamaluddin v. Sistem Televisyen Malaysia Bhd & Anor
(Yeoh Wee Siam J) [2013] 7 CLJ 483 [HC]

Defamation - Libel - Publication in news report - Tweets in Twitter account - Allegations against Sultan of Johor - Whether words complained of capable of bearing defamatory meaning - Whether referred to plaintiff - Whether had tendency to lower plaintiff in estimation of right thinking members of society - Whether defence of justification, qualified privilege and fair comment applicable - Defamation Act 1957, s. 8
Dato' Seri Mohammad Nizar Jamaluddin v. Sistem Televisyen Malaysia Bhd & Anor
(Yeoh Wee Siam J) [2013] 7 CLJ 483 [HC]

UTILITIES

Electricity - Usage - Claim for amount undercharged - Whether reg. 11(2) Licensee Supply Regulations 1990 allows undercharging for period of three months only - Whether reg. 11(2) applied retrospectively
Tenaga Nasional Bhd v. Kamarstone Sdn Bhd
(Hishamudin Mohd Yunus, Balia Yusof Wahi, Aziah Ali JJCA) [2013] 7 CLJ 462 [CA]

INDEKS PERKARA

KONTRAK

Pembentukan kontrak - Balasan - Sama ada terdapat kegagalan balasan secara total - Sama ada perjanjian batal dan tidak sah - Akta Kontrak 1950, s. 57(2)
Hong Leong Bank Bhd lwn. Law Bee Seng; Soh Lian Hwa (Pihak Ketiga)
(Ahmad Nasfy Yasin PK) [2013] 7 CLJ 505 [HC]

Sewa beli - Pelanggaran perjanjian - Kereta dirampas oleh pihak kastam - Sama ada defendan memungkiri syarat dan waranti tersirat dalam perjanjian - Kegagalan balasan secara total - Sama ada dibuktikan - Sama ada defendan berhak menuntut indemniti daripada pihak ketiga - Akta Kastam 1967, s. 128
Hong Leong Bank Bhd lwn. Law Bee Seng; Soh Lian Hwa (Pihak Ketiga)
(Ahmad Nasfy Yasin PK) [2013] 7 CLJ 505 [HC]

SEWA BELI

Perjanjian sewa beli - Pelanggaran terma tersirat perjanjian - Sama ada defendan memungkiri syarat dan waranti tersirat dalam perjanjian - Sama ada terdapat kegagalan balasan secara total - Sama ada defendan berhak menuntut indemniti daripada pihak ketiga
Hong Leong Bank Bhd lwn. Law Bee Seng; Soh Lian Hwa (Pihak Ketiga)
(Ahmad Nasfy Yasin PK) [2013] 7 CLJ 505 [HC]