Bulletin_41

CLJ Bulletin, Issue 2010, Vol 41

22 October 2010

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 8 (Part 1) 2010

1. Legislation Highlights

Amending Acts

NUMBER TITLE DATE COMING INTO FORCE
PRINCIPAL ACT NO

ACT A1381 Consumer Protection (Amendment) Act 2010 1 February 2011 [P.U. (B) 48/2011] ACT 599

ACT A1382 Subordinate Courts (Amendment) Act 2010 Not Yet In Force ACT 92

ACT A1383 Judicial Appointments Commission (Amendment) Act 2010 1 November 2010 [PU(B) 478/2010] ACT 695

ACT A1384 Hire-Purchase (Amendment) Act 2010 Not Yet In Force ACT 212

ACT A1385 Anti-Trafficking In Persons (Amendment) Act 2010 15 November 2010 [PU(B) 500/2010] ACT 670

PU(A)

NUMBER TITLE DATE COMING INTO FORCE
PRINCIPAL ACT NO

PU(A) 351/2010 Education (Terms Of Educational Institutions Year 2011) Regulations 2010 14 October 2010 ACT 550

PU(A) 352/2010 Customs Duties (Amendment) (No 3) Order 2010 15 October 2010 ACT 235

PU(A) 353/2010 Customs Duties (Goods Of Asean Countries Origin) (Asean Harmonised Tariff Nomenclature And Asean Trade In Goods Agreement) (Amendment) Order 2010 15 October 2010 ACT 235

PU(A) 354/2010 Sales Tax (Exemption) (Amendment) (No 5) Order 2010 15 October 2010 ACT 64

PU(A) 355/2010 Customs (Values) (Palm Oil) (No 42) Order 2010 18 October 2010 ACT 235

PU(B)

NUMBER TITLE DATE COMING INTO FORCE
PRINCIPAL ACT NO

PU(B) 432/2010 Notice To Third Parties 14 October 2010 ACT 613

PU(B) 433/2010 Notice Of Designation Of Site As Heritage Site 14 October 2010 ACT 645

PU(B) 434/2010 Notice Of Initiation Of Administrative Review Of The Anti-Dumping Duties With Regard To Imports Of Polyethylene Terephthalate Originating In Or Exported From Chinese Taipei, Republic Of Indonesia, Republic Of Korea And Thailand 14 October 2010 ACT 504

PU(B) 435/2010 Declaration Under Sub regulation 3(2) 14 October 2010 ACT 235

PU(B) 436/2010 Determination Of Electoral Roll For The By-Election Of P. 185 Batu Sapi 18 October 2010 ACT 19

2. Articles

a) Legal Network Series Articles

1. "The Supreme Court And Other Constitutional Changes In The UK" ^{[Read
excerpt]}
By Lord Phillips Of Worth Matravers*

3. Latest Cases

a) Legal Network Series

CITATION TITLE SUBJECT

[2010] 1 LNS 232 [HC] Lam Soon Edible Sdn Bhd v. Hup Seng Perusahaan Makanan (M) Sdn Bhd

TRADEMARKS: Registered trade mark - Expungement - Application to expunge and remove Malaysian Trade Mark Registration No. 97012526 for "NATURELL" in class 30 from the Register of Trade Marks - Applicant is owner of the trademark "NATUREL" - Whether applicant is a person aggrieved by the respondent's trademark "NATURELL" - Applicant had taken preparatory steps and made the application to register the intended mark in class 30 - Clearly an aggrieved person - Alleged non-use by the respondent for any of the respondent's products under the Class 30 range of products - Whether there was non-use by the respondent for a continuous period of not less than 3 years - Onus on applicant to establish a prima facie case of non-use of the "NATURELL" mark - Survey evidence did not meet minimum criteria - Respondent adduced sufficient evidence to show use in good faith

[2010] 1 LNS 233 [HC] Bee Bak Leng v. Menteri Dalam Negeri, Malaysia & Ors
CRIMINAL PROCEDURE: Habeas corpus - Application for habeas corpus - Emergency (Public Order and Prevention of Crime) Ordinance, 1969, detention under - Allegation that criminal activities stipulated in detention order were remote and irrelevant - Whether there was procedural noncompliance with regard to the delay by the police in executing the warrant of arrest and the issuance of the detention order by the Honourable Minister and the reasons for the said arrest and detention - No requirement that detention order may only be made within a certain time from the time of the alleged criminal activities - Whether there was procedural non-compliance with regard to the fact that the Honourable Minister did not apply his mind to subsections 4(1)(b) and (c) of the Ordinance - Honourable Minister had correctly applied his mind and thoughts to the correct limbs - Whether there was procedural non-compliance with regard to the contravention of Article 5(1) of the Federal Constitution - Whether applicant had been deprived of his personal liberty in accordance with the law

[2010] 1 LNS 235 [HC] Mohd Khir Rejab v. Timbalan Menteri Dalam Negeri & Ors
ADMINISTRATIVE LAW: Exercise of administrative powers - Dismissal from service - Plaintiff had been detained under a restriction order made under section 4A(1) of the Emergency Ordinance - Whether the disciplinary proceedings against plaintiff should have been conducted under the Police (Conduct and Discipline) (Junior Police Officer And Constables) Regulations 1970 - Whether the reference to regulation 33 of the 1993 Regulations in the dismissal letter rendered the letter null and void - Clearly an error, 2^nd defendant meant regulation 36(1)(b) of the 1993 Regulations - Whether, by referring to regulation 33 in dismissal letter, 2^nd defendant had taken into account matters which should not have been taken into account by him before deciding to dismiss plaintiff - 2^nd defendant did not mislead himself by taking into account matters which were not within the purview of regulation 36(1)(b) - No injustice to plaintiff over this mistake

[2010] 1 LNS 298 [HC] Azimuddin Ab Ghani v. Kumpulan Wang Simpanan Pekerja

BANKRUPTCY: Notice - Substituted service - Whether order properly made - Affidavit in support of application for substituted service - Judgment debtor disputing truth of contents and applying to cross-examine process server - Process server visited premises on Saturday - Whether a substantial non-compliance of Practice Direction No. 1 of 1968 - No attempt to contact judgment debtor at place of work or business, whether irregular - Sealed copy of order for substituted service not posted on notice board of court - Photocopy of sealed order used instead, whether sufficient compliance - Whether substantial injustice or prejudice caused - Failure to annex sealed copy of bankruptcy notice as exhibit to affidavit of service, photocopy used instead - Whether fatal - Bankruptcy Rules 1969, rr. 97, 110, 111, Form 15

CIVIL PROCEDURE: Service - Bankruptcy notice - Whether order properly made - Affidavit in support of application for substituted service - Judgment debtor disputing truth of contents and applying to cross-examine process server - Process server visited premises on Saturday - Whether a substantial non-compliance of Practice Direction No. 1 of 1968 - No attempt to contact judgment debtor at place of work or business, whether irregular - Sealed copy of order for substituted service not posted on notice board of court - Photocopy of sealed order used instead, whether sufficient compliance - Whether substantial injustice or prejudice caused - Failure to annex sealed copy of bankruptcy notice as exhibit to affidavit of service, photocopy used instead - Whether fatal - Bankruptcy Rules 1969, rr. 97, 110, 111, Form 15

[2010] 1 LNS 336 [HC] Bespile Sdn Bhd v. Asianshine Sdn Bhd & Ors

CIVIL PROCEDURE: Action - Claim for goods sold and delivered - Suit against principal debtor and guarantors - Proof - Documentary evidence - Admissibility of - Allegation that goods were not received or fully paid up for - Whether supported by the documents admitted - Credit limit and liability

EVIDENCE: Documentary evidence - Admissibility - Evidence Act 1950, ss. 32(1), 73A(1), (2) & (5) - Not reasonably practicable to secure maker's attendance - All reasonable efforts made to find him without success - Statement from the bar

EVIDENCE: Documentary evidence - Computer statements - Admission under s. 90A Evidence Act 1950 - Requirement for a certificate under s. 90A(2) - Judicial notice of facts which need not be proved - Section 57 - Whether bank statements invariably produced by computers - Circumstances where certificate is required - PP v. Ong Cheng Heong [1998] 4 CLJ 209 distinguished - Section 90A(6)

CONTRACT: Guarantee - Continuing guarantee - Whether signed - Forgery, whether established - Non est factum - Presumption of adverse inference - Liability and credit limit

WORDS & PHRASES: 'may' - Evidence Act 1950, s. 90A(2) - Mere direction or discretion

CITATION	TITLE	SUBJECT
[2010] 1 LNS 232 [HC]	Lam Soon Edible Sdn Bhd v. Hup Seng Perusahaan Makanan (M) Sdn Bhd	TRADEMARKS: Registered trade mark - Expungement - Application to expunge and remove Malaysian Trade Mark Registration No. 97012526 for "NATURELL" in class 30 from the Register of Trade Marks - Applicant is owner of the trademark "NATUREL" - Whether applicant is a person aggrieved by the respondent's trademark "NATURELL" - Applicant had taken preparatory steps and made the application to register the intended mark in class 30 - Clearly an aggrieved person - Alleged non-use by the respondent for any of the respondent's products under the Class 30 range of products - Whether there was non-use by the respondent for a continuous period of not less than 3 years - Onus on applicant to establish a prima facie case of non-use of the "NATURELL" mark - Survey evidence did not meet minimum criteria - Respondent adduced sufficient evidence to show use in good faith
[2010] 1 LNS 233 [HC]	Bee Bak Leng v. Menteri Dalam Negeri, Malaysia & Ors	CRIMINAL PROCEDURE: Habeas corpus - Application for habeas corpus - Emergency (Public Order and Prevention of Crime) Ordinance, 1969, detention under - Allegation that criminal activities stipulated in detention order were remote and irrelevant - Whether there was procedural noncompliance with regard to the delay by the police in executing the warrant of arrest and the issuance of the detention order by the Honourable Minister and the reasons for the said arrest and detention - No requirement that detention order may only be made within a certain time from the time of the alleged criminal activities - Whether there was procedural non-compliance with regard to the fact that the Honourable Minister did not apply his mind to subsections 4(1)(b) and (c) of the Ordinance - Honourable Minister had correctly applied his mind and thoughts to the correct limbs - Whether there was procedural non-compliance with regard to the contravention of Article 5(1) of the Federal Constitution - Whether applicant had been deprived of his personal liberty in accordance with the law
[2010] 1 LNS 235 [HC]	Mohd Khir Rejab v. Timbalan Menteri Dalam Negeri & Ors	ADMINISTRATIVE LAW: Exercise of administrative powers - Dismissal from service - Plaintiff had been detained under a restriction order made under section 4A(1) of the Emergency Ordinance - Whether the disciplinary proceedings against plaintiff should have been conducted under the Police (Conduct and Discipline) (Junior Police Officer And Constables) Regulations 1970 - Whether the reference to regulation 33 of the 1993 Regulations in the dismissal letter rendered the letter null and void - Clearly an error, 2^nd defendant meant regulation 36(1)(b) of the 1993 Regulations - Whether, by referring to regulation 33 in dismissal letter, 2^nd defendant had taken into account matters which should not have been taken into account by him before deciding to dismiss plaintiff - 2^nd defendant did not mislead himself by taking into account matters which were not within the purview of regulation 36(1)(b) - No injustice to plaintiff over this mistake
[2010] 1 LNS 298 [HC]	Azimuddin Ab Ghani v. Kumpulan Wang Simpanan Pekerja	BANKRUPTCY: Notice - Substituted service - Whether order properly made - Affidavit in support of application for substituted service - Judgment debtor disputing truth of contents and applying to cross-examine process server - Process server visited premises on Saturday - Whether a substantial non-compliance of Practice Direction No. 1 of 1968 - No attempt to contact judgment debtor at place of work or business, whether irregular - Sealed copy of order for substituted service not posted on notice board of court - Photocopy of sealed order used instead, whether sufficient compliance - Whether substantial injustice or prejudice caused - Failure to annex sealed copy of bankruptcy notice as exhibit to affidavit of service, photocopy used instead - Whether fatal - Bankruptcy Rules 1969, rr. 97, 110, 111, Form 15 CIVIL PROCEDURE: Service - Bankruptcy notice - Whether order properly made - Affidavit in support of application for substituted service - Judgment debtor disputing truth of contents and applying to cross-examine process server - Process server visited premises on Saturday - Whether a substantial non-compliance of Practice Direction No. 1 of 1968 - No attempt to contact judgment debtor at place of work or business, whether irregular - Sealed copy of order for substituted service not posted on notice board of court - Photocopy of sealed order used instead, whether sufficient compliance - Whether substantial injustice or prejudice caused - Failure to annex sealed copy of bankruptcy notice as exhibit to affidavit of service, photocopy used instead - Whether fatal - Bankruptcy Rules 1969, rr. 97, 110, 111, Form 15
[2010] 1 LNS 336 [HC]	Bespile Sdn Bhd v. Asianshine Sdn Bhd & Ors	CIVIL PROCEDURE: Action - Claim for goods sold and delivered - Suit against principal debtor and guarantors - Proof - Documentary evidence - Admissibility of - Allegation that goods were not received or fully paid up for - Whether supported by the documents admitted - Credit limit and liability EVIDENCE: Documentary evidence - Admissibility - Evidence Act 1950, ss. 32(1), 73A(1), (2) & (5) - Not reasonably practicable to secure maker's attendance - All reasonable efforts made to find him without success - Statement from the bar EVIDENCE: Documentary evidence - Computer statements - Admission under s. 90A Evidence Act 1950 - Requirement for a certificate under s. 90A(2) - Judicial notice of facts which need not be proved - Section 57 - Whether bank statements invariably produced by computers - Circumstances where certificate is required - PP v. Ong Cheng Heong [1998] 4 CLJ 209 distinguished - Section 90A(6) CONTRACT: Guarantee - Continuing guarantee - Whether signed - Forgery, whether established - Non est factum - Presumption of adverse inference - Liability and credit limit *WORDS & PHRASES:* 'may' - Evidence Act 1950, s. 90A(2) - Mere direction or discretion

b. CLJ Volume 8 (Part 1) 2010

COURT

COURT OF APPEAL

Dato' Tan Heng Chew v. Tan Kim Hor & Another Appeal
(Amendment - Writ of summons and statement of claim) [2010] 8 CLJ 1

Nasaruddin Daud & Anor v. PP
(Whether trial judge failed to judicially appreciate evidence of agent provocateur) [2010] 8 CLJ 21

Oakfield Enterprises Sdn Bhd v. Tenaga Nasional Bhd
(Electricity - Installation of cables - Trespass) [2010] 8 CLJ 42

Semenda Sdn Bhd & Anor v. CD Anugerah Sdn Bhd & Anor
(Letter of undertaking - Breach) [2010] 8 CLJ 49

HIGH COURT

DG KOM Sdn Bhd v. Pendaftar Syarikat & Anor
(Registration of company name - Name resembling name of existing company) [2010] 8 CLJ 73

Sapura Holdings Sdn Bhd & Anor v. Northern Telecom (Asia) Ltd & Ors
(Oral agreement - Distributorship agreement) [2010] 8 CLJ 97

United Plastics Sdn Bhd v. Chan Teng Song & Anor
(Conversion - Unlawful appropriation of goods) [2010] 8 CLJ 120

SUBJECT INDEX

CIVIL PROCEDURE

Amendment - Writ of summons and statement of claim - Defamation suit - Case not set down for trial - Proposed amendments to set out with greater clarity defamatory nature of statements by way of innuendo other than in their natural and ordinary meaning - Amendment allowed
Dato' Tan Heng Chew v. Tan Kim Hor & Another Appeal
(Mohd Ghazali Yusoff, Hasan Lah & Wan Adnan Muhamad JJCA) [2010] 8 CLJ 1 [CA]

Amendment - Writ of summons and statement of claim - Principles applicable - Whether prejudice suffered by defendant could be compensated by costs - Whether new facts and issues raised - Whether application for amendment one year and seven months after "Agreed Issues To Be Tried" constituted inordinate delay - Whether proposed amendments a tactical manoeuvre and abuse of process of court - Proposed amendments allowed so that true issues in controversy could be resolved - Far greater injustice if plaintiff's case was limited prematurely - Order 20 r. 5 Rules of the High Court 1980
Dato' Tan Heng Chew v. Tan Kim Hor & Another Appeal
(Mohd Ghazali Yusoff, Hasan Lah & Wan Adnan Muhamad JJCA) [2010] 8 CLJ 1 [CA]

COMPANY LAW

Registration of company name - Name resembling name of existing company - Whether there is a similarity between the plaintiff's and 2nd defendant's names - Whether confusion caused to the public as a consequence of such similarity in names - Whether plaintiff suffered loss or damage as a consequence of such similarity - Whether continued use of 2nd defendant's name 'undesirable' within context of s. 22(1) Companies Act 1965
DG KOM Sdn Bhd v. Pendaftar Syarikat & Anor
(Nallini Pathmanathan J) [2010] 8 CLJ 73 [HC]

CONTRACT

Construction - Terms of undertaking - Letters of 5 February 1998 and 6 February 1998 - Respondent received and accepted 6 February 1998 letter without any qualification and acted on it - Subsequent letters written by the 2nd respondent after registration of the transfer and charge an afterthought
Semenda Sdn Bhd & Anor v. CD Anugerah Sdn Bhd & Anor
(Raus Sharif, Sulong Matjeraie & Kang Hwee Gee JJCA) [2010] 8 CLJ 49 [CA]

Letter of undertaking - Breach - High Court judge's decision based on a wrong premise that 2nd appellant knew or ought to have known that balance purchase price not received by 2nd respondent when 5 February 1998 letter was given - When appellants notified that balance of purchase price not with respondent - 2nd appellant's letter of 6 February 1998 was completely ignored by High Court judge in his evaluation - Incumbent on all solicitors to examine undertakings given closely - Whether 2nd respondent responsible for undertaking
Semenda Sdn Bhd & Anor v. CD Anugerah Sdn Bhd & Anor
(Raus Sharif, Sulong Matjeraie & Kang Hwee Gee JJCA) [2010] 8 CLJ 49 [CA]

Oral agreement - Distributorship agreement - Based on oral representations - No initial written agreement - Distributorship agreement subsequently formalised - Whether there was a collateral contract based on oral undertakings of negotiating parties - Whether evidence of oral representations can be tendered - Whether contemporaneous documents preferred to oral evidence - Evidence Act 1950, s. 92 - Whether written agreement overrides all previous agreements - Whether termination of distributorship lawful - Whether parties were joint-venture partners or 'buyer and seller' - Fiduciary duties of co-venturers - Damages and proof
Sapura Holdings Sdn Bhd & Anor v. Northern Telecom (Asia) Ltd & Ors
(Hadhariah Syed Ismail JC) [2010] 8 CLJ 97 [HC]

CRIMINAL PROCEDURE

Appeal - Grounds of - Whether prosecution witnesses gave evidence under oath - Whether there was non-compliance by trial judge of s. 180 Criminal Procedure Code - Prima facie case, whether made out by prosecution - Order by trial judge for accused to enter defence - Whether trial judge failed to judicially appreciate evidence of agent provocateur
Nasaruddin Daud & Anor v. PP
(Suriyadi Halim Omar, Hasan Lah & Ahmad Maarop JJCA) [2010] 8 CLJ 21 [CA]

EVIDENCE

Relevancy - Registration of company name - Whether court ought to take into account material arising after date of registration of change in name in deciding on issue of 'confusion' - Court ought not to consider facts that occurred after registration of company and after exercise of registrar's discretion
DG KOM Sdn Bhd v. Pendaftar Syarikat & Anor
(Nallini Pathmanathan J) [2010] 8 CLJ 73 [HC]

LAND LAW

Trespass - Wrongful entry - Installation of electrical cables - Section 53 Electricity Act 1949, whether complied with - Whether defendant/respondent authorised by Land Office to enter land to carry out said installation
Oakfield Enterprises Sdn Bhd v. Tenaga Nasional Bhd
(Mokhtar Sidin, Hashim Yusoff & Azmel Maamor JJCA) [2010] 8 CLJ 42 [CA]

PUBLIC UTILITIES

Electricity - Installation of cables - Right to enter land - Trespass - Section 53 Electricity Act 1949, whether complied with - Whether defendant/respondent authorised by Land Office to enter land to carry out said installation
Oakfield Enterprises Sdn Bhd v. Tenaga Nasional Bhd
(Mokhtar Sidin, Hashim Yusoff & Azmel Maamor JJCA) [2010] 8 CLJ 42 [CA]

TORT

Conversion - Claim in conversion - Unlawful appropriation of goods - Defendants retrieved and transported two custom-made moulds out of plaintiff's premises without plaintiff's authorisation - Whether plaintiff succeeded in proving its case against defendants
United Plastics Sdn Bhd v. Chan Teng Song & Anor
(Hue Siew Kheng JC) [2010] 8 CLJ 120 [HC]

Trespass to land - Authorisation given to defendant to carry out work on plaintiff's land - Installation of electrical cables - Electricity Act 1949, s. 53
Oakfield Enterprises Sdn Bhd v. Tenaga Nasional Bhd
(Mokhtar Sidin, Hashim Yusoff & Azmel Maamor JJCA) [2010] 8 CLJ 42 [CA]

CASE OF THE WEEK

SELVARAJU MUDALIAR KALLIPARAMAL v. PP

CRIMINAL LAW: Murder - Defence - Unsoundness of mind - Appellant suffering from schizophrenia - Whether appellant unaware of his actions - Whether appellant in command of mental faculties when killing the deceased - Incumbent on prosecution to establish that appellant had indeed taken his medication - Prosecution failed to do so - Whether appellant had established his defence of unsoundness of mind and thus not capable of knowing that his act was wrong or contrary to law

CLJ Bulletin
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NUMBER	TITLE	DATE COMING INTO FORCE	PRINCIPAL ACT NO
ACT A1381	Consumer Protection (Amendment) Act 2010	1 February 2011 [P.U. (B) 48/2011]	ACT 599
ACT A1382	Subordinate Courts (Amendment) Act 2010	Not Yet In Force	ACT 92
ACT A1383	Judicial Appointments Commission (Amendment) Act 2010	1 November 2010 [PU(B) 478/2010]	ACT 695
ACT A1384	Hire-Purchase (Amendment) Act 2010	Not Yet In Force	ACT 212
ACT A1385	Anti-Trafficking In Persons (Amendment) Act 2010	15 November 2010 [PU(B) 500/2010]	ACT 670