Legal Network Series

[2011] 1 LNS 50	YEOH LIANG CHUAN v. PERMODALAN NASIONAL BERHAD	CONTRACT: Breach - Employment contract - Claim for salary revision and accompanying benefits - Whether appellant proved he was entitled to the salary revision - Whether appellant was entitled to a 40 % increase in the basic pay under the memo - Whether appellant proved his claim on a balance of probabilities CIVIL PROCEDURE: Appeal - Appeal from Sessions Court - Appeal to High Court - Whether trial judge erred in her approach and in arriving at her decision - Whether trial judge gave due appreciation to the evidence favourable to appellant - Whether trial judge's findings on the computation of appellant's basic salary ran counter to the evidence adduced - Whether trial judge misdirected herself on the applicable law of no case to answer - Whether approach caused serious miscarriage of justice to appellant - Whether merited appellate intervention by this court
[2011] 1 LNS 816	GABUNGAN PERTIWI SDN BHD v. PEMBINAAN BLT SDN BHD	CONTRACT: Guarantee - Performance guarantee - Demand for payment - Whether Guarantees were 'on-demand' guarantees - If so, whether 'unconscionability' surrounding the demand or of the conduct of the beneficiary was a further exception for intervention by the Court, apart from the established exception of 'fraud' - Whether 'unconscionability' established to restrain defendant from demanding, receiving and/or dealing with proceeds as beneficiary of the Guarantee
[2011] 1 LNS 817	EON BANK BERHAD v. DATUK KERAMAT HOLDINGS BERHAD	COMPANY LAW: Winding up - Petition - Application to strike out winding up petition - Service of statutory demand - Service of petition - Dispute regarding service of both - Whether s. 218 Notice had been left at respondent's registered office - Whether that was the only requirement for presumption that respondent unable to pay its debts to be invoked to ground a petition - Whether petition was properly effected at respondent's registered office - Whether respondent was commercially insolvent as not able to meet its current liabilities
[2011] 1 LNS 818	WLP INDUSTRIAL SOLUTIONS (M) SDN BHD v. KL-KEPONG RUBBER PRODUCTS SDN BHD	TORT: Defamation - Libel - Libellous letters - Whether alleged defamatory statement was published to a third party - Whether alleged defamatory statements in P37 referred to plaintiff - Whether statements contained in letter were defamatory - Whether any defences available to defendant TORT: Defamation - Libellous letters - Damages - Exemplary damages - Whether defendant's conduct was calculated to profit himself - Whether any basis for the award of exemplary damages - Aggravated damages - Whether a corporate plaintiff is entitled to aggravated damages - Whether publication of letter affected plaintiff's credibility and integrity in the business community thereby causing plaintiff mental distress
[2011] 1 LNS 840	SEE CHOO @ SEE GUAT KIOK v. JB SECURITIES SDN BHD	CIVIL PROCEDURE: Limitation - Defendant raising defence of time bar against plaintiff's claim - Whether period of limitation could be postponed to begin to run only when plaintiff discovered the fraud or could with reasonable diligence have discovered it - Amendments to the 1999 suit on 21 December 2000 - Whether plaintiff must have had full and complete knowledge of all matters raised in that suit as amended which was identical to the present suit - Whether alleged fraud had already been discovered on 21 December 2000 and time should begin to run from then - Whether writ filed well beyond 6 years after that date and had become time-barred CIVIL PROCEDURE: Fraud - Whether allegation that defendant had acted wrongfully based on fraud in dealing with all the impugned transactions had been proved - Whether plaintiff discharged evidential burden of proving fraud against defendant beyond reasonable doubt

CLJ 2013 Volume 7 (Part 5)

COURT

FEDERAL COURT

Datuk M Kayveas & Anor v. Bar Council
Arifin Zakaria CJ, Hashim Yusoff, Ahmad Maarop, Hasan Lah, Jeffrey Tan FCJJ
(Legal Profession - Misconduct - Acting in a manner unbefitting of an advocate and solicitor) [2013] 7 CLJ 533 [FC]

COURT OF APPEAL

Azilah Hadri & Anor v. PP
Mohamed Apandi Ali, Linton Albert, Tengku Maimun JJCA
(Criminal Law; Criminal Procedure; Evidence - Murder - Common intention - Circumstantial evidence) [2013] 7 CLJ 577 [CA]

HIGH COURT

Jamal Nasir Zulkipli & Anor v. Ng Sze Tian & Anor
Ravinthran Paramaguru JC
(Tort; Damages - Personal injury or death - Damages - Assessment) [2013] 7 CLJ 625 [HC]

Kamarul Farkaruddin Mohamed lwn. PP
Kamardin Hashim H
(Prosedur Jenayah; Undang-undang Jenayah; Keterangan - Akta Dadah Berbahaya 1952 - Seksyen 15(1)(a) – Kesalahan memasukkan dadah berbahaya ke dalam tubuh badan)[2013] 7 CLJ 636 [HC]

Mohd Khirudin Yaakub v. Superintendant Of Central Prison Kuching & Ors
Rhodzariah Bujang J
(Criminal Procedure; Damages; Tort - Warrant of commitment - False imprisonment) [2013] 7 CLJ 654 [HC]

South East Asia Special Asset Management Bhd v. Foo Shyy Fang & Anor
VT Singham J
(Civil Procedure; Land Law; Bankruptcy - Proof of debt - Filing of - Secured creditor) [2013] 7 CLJ 667 [HC]

SUBJECT INDEX

BANKRUPTCY

Proof of debt - Filing of - Secured creditor - Whether plaintiff as secured creditor surrendered security to Director General of Insolvency - Whether subject property becomes vested in Director General of Insolvency - Whether a distinction between drawn r. 10 and r. 11 of Sch. C of Bankruptcy Act 1967 - Whether plaintiff entitled to enforce its statutory rights - Bankruptcy Act 1967, s. 42
South East Asia Special Asset Management Bhd v. Foo Shyy Fang & Anor
(VT Singham J) [2013] 7 CLJ 667 [HC]

CIVIL PROCEDURE

Originating summons - Charge action - Foreclosure proceedings - Application to enforce statutory remedy to recover loan - Proof of debt - Filing of - Whether plaintiff as secured creditor surrendered security to Director General of Insolvency - Whether subject property becomes vested in Director General of Insolvency - Whether a distinction drawn between r. 10 and r. 11 of Sch. C of Bankruptcy Act 1967 - Whether plaintiff entitled to enforce its statutory rights - Bankruptcy Act 1967, s. 42
South East Asia Special Asset Management Bhd v. Foo Shyy Fang & Anor
(VT Singham J) [2013] 7 CLJ 667 [HC]

CRIMINAL LAW

Penal Code - Section 302 - Murder - Common intention - Circumstantial evidence - Appellants alleged to have shot deceased and blown her to pieces by using explosives - Whether evidence did not conclusively and irresistibly point to appellants' guilt - Whether prearranged plan not proved or addressed by trial judge - Whether conviction unsafe - Penal Code, ss. 34 & 302
Azilah Hadri & Anor v. PP
(Mohamed Apandi Ali, Linton Albert, Tengku Maimun JJCA) [2013] 7 CLJ 577 [CA]

CRIMINAL PROCEDURE

Trial - Defence - Alibi - Whether to be adequately addressed by trial judge - Proof - Whether accused had no legal burden to prove defence of alibi - Trial judge imputing burden of proof to accused - Whether a serious misdirection
Azilah Hadri & Anor v. PP
(Mohamed Apandi Ali, Linton Albert, Tengku Maimun JJCA) [2013] 7 CLJ 577 [CA]

Warrant - Warrant of commitment - Plaintiff sentenced to one year imprisonment and fine of RM10,000 in default six months' imprisonment - Warrant of commitment stated failure to pay fine - Whether fine paid - Plaintiff committed to prison for default of payment - Whether prison warden informed about payment of fine - Whether prison officers justified in taking warrant of commitment at face value without verifying with court
Mohd Khirudin Yaakub v. Superintendant Of Central Prison Kuching & Ors
(Rhodzariah Bujang J) [2013] 7 CLJ 654 [HC]

DAMAGES

Assessment - False imprisonment - Plaintiff's imprisonment of one year extended to another six months - Allegation that extended incarceration caused mental illness - Claim for general, exemplary and aggravated damages - Whether mental illness caused by default sentence or extended incarceration - Whether damages claimable
Mohd Khirudin Yaakub v. Superintendant Of Central Prison Kuching & Ors
(Rhodzariah Bujang J) [2013] 7 CLJ 654 [HC]

Personal Injury or Death - Award - Decision of Sessions Court - Appeal against - General damages and special damages - Whether award of RM170,000 and RM180,000 for paraplegia sufficient - Whether separate award for bladder impairment and erectile dysfunction should be awarded - Nursing care - Whether assessment based on cost of engaging domestic help - Whether claim for renovation to facilitate use of wheelchair should be allowed
Jamal Nasir Zulkipli & Anor v. Ng Sze Tian & Anor
(Ravinthran Paramaguru JC) [2013] 7 CLJ 625 [HC]

EVIDENCE

Adverse inference - Murder - Failure to call material police witnesses to testify - Whether a withholding of evidence - Whether presumption arose against prosecution - Evidence Act 1950, s. 114(g)
Azilah Hadri & Anor v. PP
(Mohamed Apandi Ali, Linton Albert, Tengku Maimun JJCA) [2013] 7 CLJ 577 [CA]

Documentary evidence - Computer printout - Admissibility - Failure by trial judge to determine person responsible for management and operation of computer from which exhibits were printed - Evidentiary requirement - Whether fulfilled - Whether exhibit wrongly admitted - Whether a misdirection - Evidence Act 1950, ss. 83 & 90A(2)
Azilah Hadri & Anor v. PP
(Mohamed Apandi Ali, Linton Albert, Tengku Maimun JJCA) [2013] 7 CLJ 577 [CA]

Information leading to fact discovered - Admissibility of statement - Murder - Information leading to discovery of crime scene and jewellery belonging to deceased - Whether police had prior knowledge of information - Contradictions in statement - Contradictions not addressed by trial judge - Whether a misdirection by way of non-direction - Evidence Act 1950, s. 27
Azilah Hadri & Anor v. PP
(Mohamed Apandi Ali, Linton Albert, Tengku Maimun JJCA) [2013] 7 CLJ 577 [CA]

LAND LAW

Charge - Foreclosure proceedings - Application to enforce statutory remedy to recover loan - Proof of debt - Filing of - Whether plaintiff as secured creditor surrendered security to Director General of Insolvency - Whether subject property becomes vested in Director General of Insolvency - Whether a distinction drawn between r. 10 and r. 11 of Sch. C of Bankruptcy Act 1967 - Whether plaintiff entitled to enforce its statutory rights - Bankruptcy Act 1967, s. 42
South East Asia Special Asset Management Bhd v. Foo Shyy Fang & Anor
(VT Singham J) [2013] 7 CLJ 667 [HC]

LEGAL PROFESSION

Misconduct - Acting in a manner unbefitting of an advocate and solicitor - Conveyancing transaction - Breach of stakeholder obligation over stakeholder monies - Whether a breach of fiduciary duty - Part of stakeholder monies wrongfully released - Whether constituted a breach of trust - Whether apellants jointly complicit and at fault - Whether there was breach of rules of natural justice at disciplinary hearing - Legal Profession Act 1976, s. 94(3)(o)
Datuk M Kayveas & Anor v. Bar Council
(Arifin Zakaria CJ, Hashim Yusoff, Ahmad Maarop, Hasan Lah, Jeffrey Tan FCJJ) [2013] 7 CLJ 533 [FC]

TORT

Damages - Assessment - Appellants sustained paraplegic injuries and wheelchair bound for life - Nursing care - Whether based on cost of engaging domestic help - Whether claim for renovation to facilitate use of wheelchair should be allowed
Jamal Nasir Zulkipli & Anor v. Ng Sze Tian & Anor
(Ravinthran Paramaguru JC) [2013] 7 CLJ 625 [HC]

False imprisonment - Unlawful imprisonment - Conviction under s. 11(a) Anti-Corruption Act 1997 - Sentence of one year imprisonment and fine of RM10,000 in default six months' imprisonment - Warrant of commitment stated failure to pay fine - Plaintiff paid fine but committed to prison for default of payment - Whether prison warden informed - Whether there was breach of reg. 24 Prison Regulations 2000 - Whether plaintiff falsely imprisoned - Prisons Act 1967, s. 29
Mohd Khirudin Yaakub v. Superintendant Of Central Prison Kuching & Ors
(Rhodzariah Bujang J) [2013]7 CLJ 654 [HC]

INDEKS PERKARA

KETERANGAN

Terima masuk - Laporan kimia - Laporan ujian pengesanan dadah dalam air kencing - Sama ada disediakan oleh seorang yang berkelayakan di bawah s. 31A Akta Dadah Berbahaya - Sama ada laporan boleh diterima - Kanun Tatacara Jenayah, s. 399
Kamarul Farkaruddin Mohamed lwn. PP
(Kamardin Hashim H) [2013] 7 CLJ 636 [HC]

PROSEDUR JENAYAH

Ekshibit - Pemeriksaan oleh pakar - Laporan ujian pengesanan dadah dalam air kencing - Keputusan menunjukkan kandungan amphetamine dan methamphetamine - Kegagalan menyatakan amphetamine dan methamphetamine adalah dadah berbahaya yang tersenarai dalam Bahagian III dan IV Jadual Pertama Akta Dadah Berbahaya - Sama ada menimbulkan keraguan terhadap kes pendakwaan
Kamarul Farkaruddin Mohamed lwn. PP
(Kamardin Hashim H) [2013] 7 CLJ 636 [HC]

UNDANG-UNDANG JENAYAH

Akta Dadah Berbahaya 1952 - Seksyen 15(1)(a) - Kesalahan memasukkan dadah berbahaya ke dalam tubuh badan - Ujian saringan air kencing didapati positif dadah - Sama ada peruntukan s. 31A(1A) dipatuhi - Sama ada tertuduh ditangkap sebelum memberikan sampel air kencing - Sama ada pegawai sains yang membuat pemeriksaan dan ujian pengesanan dadah berkelayakan - Sama ada kegagalan mematuhi s. 31A(1A) memudaratkan kes pendakwaan - Kanun Tatacara Jenayah, s. 399
Kamarul Farkaruddin Mohamed lwn. PP
(Kamardin Hashim H) [2013] 7 CLJ 636 [HC]