Legal Network Series

[2009] 1 LNS 841	PP v. HONG CHEN KIM	CRIMINAL PROCEDURE: Appeal - Appeal against discharge and acquittal for copyright infringement - Finding by trial judge that prosecution failed to prove a prima facie case against respondent - Whether trial Judge misdirected herself or erred in fact or law EVIDENCE: Proof of - Fourth ingredient of offence - Proof that VCDs were infringing copies of film work - Photocopy of Memorandum signed by Director of MFACT Sdn. Bhd to prove that SP4 had written authorization to act on behalf of owner of Copyright in the 12 VCDs produced - Whether original memorandum should have been produced - Director of MFACT Sdn. Bhd not produced as witness - Whether prosecution could only rely on ss. 42(1) and (2) of the Copyright Act 1987 if Director of MFACT Sdn. Bhd produced as its witness to tender relevant documents
[2009] 1 LNS 849	JIWA HARMONI OFFSHORE SDN BHD v. ISHI PAOWER SDN BHD	ARBITRATION: Procedure - Security for costs - Application to seek costs and to secure amount in dispute - Whether plaintiff was the claimant and not entitled to security for costs - Whether powers to order security and to make such orders as in s. 11(e) and (g) of the Arbitration Act 2005, already vested in the Arbitrator - Whether such application ought not be made to the High Court in the first instance
[2009] 1 LNS 886	ISMAIL MOHD SAAID & ANOR v. DSP HAJI MOHD ALI BUJANG @ MOHD BUJANG	TORT: Assault and battery – 1st plaintiff only suffered minor soft tissue injury - Whether 1st plaintiff had discharged his burden of proof that defendant assaulted and battered him - If so, whether 1st plaintiff entitled to damages and compensation for his injured feelings and humiliation as well TORT: Defamation - Libel - Whether letter published by defendant and referred to 2nd plaintiff - Implication 2nd plaintiff was an unfit teacher - Whether letter was defamatory of 2nd plaintiff TORT: Defamation - Libel - Defences of justification and qualified privilege - Alleged justification as 2nd plaintiff created a nuisance by going to the Disciplinary Unit of the Police Headquarters to complain no action being taken on her husband's case - Whether unjustified to imply in letter to Director of Education that 2nd plaintiff was an unfit teacher - Qualified privilege - Whether any element of common interest and reciprocity between defendant and receiver of the communication, Education Department Director - Whether such defence defeated by defendant's malicious intention to humiliate and embarrass her TORT: Defamation - Slander - Action by defendant against 2nd plaintiff - 2nd plaintiff denied uttering impugned words - Whether the impugned words referred to defendant and was defamatory of him - Whether defendant's counterclaim sustainable
[2010] 1 LNS 1330	DATO' VKK TEAGARAJAN VK KALYANASUNDRAM & ORS v. DATUK K KETHEESWARA & ANOR	CIVIL PROCEDURE: Parties - Proper parties to be sued, whether - Whether relief sought could only be granted against Malaysian Associated Indian Chambers of Commerce & Industry (MAICCI) - Whether an officer bearer of MAICCI should be cited as a defendant with the appropriate endorsement concerning his capacity - Whether plaintiffs failed to name appropriate defendants in this suit CIVIL PROCEDURE: Injunction - Application for - To restrain first respondent from convening the Annual Delegates Conference and taking any steps in MAICCI's name - Whether there were serious issues to be tried - Where justice of case lay - Whether balance of convenience favoured respondents - Whether damages would be an adequate remedy UNINCORPORATED ASSOCIATIONS: Societies - Constitution - No provision in the MAICCI Constitution that allowed for an Interim Committee - Whether Interim Committee was ultra vires MAICCI Constitution - Whether all decisions reached by Interim Committee invalid
[2010] 1 LNS 1333	SHAHIRMAN SAHALAN & ORS v. NATSEVEN TV SDN BHD & ANOR	ADMINISTRATIVE LAW: Remedies - Judicial review - Certiorari - Mandamus - Finding that first respondent suffered financial hardship - Whether second respondent committed any error of law in such finding - Whether second respondent wrong to rely on audited accounts of first respondent in arriving at its conclusion - Whether second respondent misapplied test of redundancy - Whether second respondent disregarded legal force of Code of Conduct for Industrial Harmony ADMINISTRATIVE LAW: Remedies - Judicial review - Whether all relevant evidence had been considered by Industrial Court - Whether Industrial Court omitted irrelevant matters from its consideration - Whether Industrial Court arrived at a just decision

CLJ 2012 Volume 6 (Part 4)

COURT

FEDERAL COURT

Yong Teng Hing B/S Hong Kong Trading Co & Anor v. Walton International Ltd
Zulkefli Makinudin CJ (Malaya), Hashim Yusoff, Ahmad Maarop, Hasan Lah FCJJ, Zaleha Zahari JCA
(Trade Marks - Application for registration of trade mark - Whether appellant's use of trade mark can lead to deception or confusion) [2012] 6 CLJ 337 [FC]

COURT OF APPEAL

Kerajaan Negeri Kelantan & Anor v. Wong Meng Yit & Ors
Ramly Ali, Zaharah Ibrahim, Alizatul Khair Osman JJCA
(Civil Procedure - Striking out - Mode of commencement - Whether application should have been commenced by way of judicial review) [2012] 6 CLJ 357 [CA]

Nor Afizal Azizan v. PP
Raus Sharif PCA, KN Segara, Azhar Ma'ah JJCA
(Criminal Procedure - Sentence - Statutory rape - Releasing offender on probation of good conduct - Effect and consequence) [2012] 6 CLJ 370 [CA]

Teng Kok Soeng & Anor v. PP
Hasan Lah, Abdul Malik Ishak, Azhar Ma'ah JJCA
(Criminal Law; Criminal Procedure; Evidence - Trafficking in dangerous drugs - Failure to call material witness) [2012] 6 CLJ 383 [CA]

HIGH COURT

Ching Yik Development Sdn Bhd & Anor v. Wordware Distributors (M) Sdn Bhd & Anor
Lee Swee Seng JC
(Civil Procedure - Default judgment obtained by chargor - Whether writ and statement of claim validly served - Whether terms of default judgment should be varied) [2012] 6 CLJ 394 [HC]

Dayang Raihan Pg Hj Ahmad Raffae v. Malaysia British Assurance Bhd
Abdul Rahman Sebli J
(Insurance - Fire insurance - Claim on policy - Whether plaintiff suffered total loss or damage) [2012] 6 CLJ 417 [HC]

Leolaris (M) Sdn Bhd v. Bumiputra Commerce Bank Bhd
Hamid Sultan Abu Backer J
(Banking - Forgery of company's cheques - Whether customer should have objected - Whether banker protected by s. 73A of Bills of Exchange Act 1949) [2012] 6 CLJ 423 [HC]

SUBJECT INDEX

BANKING

Banker and customer - Forgery - Forgery of company's cheques - Regulation of cheques by authorised person unsupervised - Bank honoured cheques forged by authorised person - Contractual obligation of customer to check account statements - Whether customer should have objected - No indication of non-receival of statements of account - Whether customer breached express term in monthly statement of account - Whether banker protected by s. 73A of Bills of Exchange Act 1949 and relieved from liability
Leolaris (M) Sdn Bhd v. Bumiputra Commerce Bank Bhd
(Hamid Sultan Abu Backer J) [2012] 6 CLJ 423 [HC]

CIVIL PROCEDURE

Judgment - Variation - Third party chargor to loan - Bank obtained order for sale when loan defaulted - Chargor paid RM1.8 million to bank to avoid land being auctioned off - Chargor then claimed full settlement amount from borrower and guarantor - Default judgment obtained by chargor - Whether writ and statement of claim validly served - Whether terms of default judgment should be varied
Ching Yik Development Sdn Bhd & Anor v. Wordware Distributors (M) Sdn Bhd & Anor
(Lee Swee Seng JC) [2012] 6 CLJ 394 [HC]

Mode of commencement - Originating summons - Declaration of invalidity and ultra vires - Application without prior leave of Federal Court judge - Federal Constitution, art. 4(3), (4) - Whether application should have been commenced by way of judicial review - Whether application void and invalid - Whether abuse of process of court - Rules of the High Court 1980, O. 53
Kerajaan Negeri Kelantan & Anor v. Wong Meng Yit & Ors
(Ramly Ali, Zaharah Ibrahim, Alizatul Khair Osman JJCA) [2012] 6 CLJ 357 [CA]

Striking out - Abuse of process of court - Originating summons - Declaration of invalidity and ultra vires - Application without prior leave of Federal Court judge - Federal Constitution, art 4(3), (4) - Whether application should have been commenced by way of judicial review - Whether application void and invalid - Whether abuse of process of court - Rules of the High Court 1980, O. 53
Kerajaan Negeri Kelantan & Anor v. Wong Meng Yit & Ors
(Ramly Ali, Zaharah Ibrahim, Alizatul Khair Osman JJCA) [2012] 6 CLJ 357 [CA]

CRIMINAL LAW

Dangerous Drugs Act 1952 - Section 39B(1)(a) - Conviction and sentence - Appeal against - Trafficking in mixed heroin and monoacetylmorphines - Charge adverting to 'mixed heroin' - Chemist report confirmed type and quantity of drugs - Whether charge against appellants defective - Failure to call material witness - Whether fatal to prosecution's case - Whether appeal devoid of merit
Teng Kok Soeng & Anor v. PP
(Hasan Lah, Abdul Malik Ishak, Azhar Ma'ah JJCA) [2012] 6 CLJ 383 [CA]

CRIMINAL PROCEDURE

Charge - Ingredients - Trafficking in dangerous drugs - Charge adverting to "mixed heroin and monoacetylmorphines" - Chemist report confirmed type and quantity of drugs - Whether charge defective
Teng Kok Soeng & Anor v. PP
(Hasan Lah, Abdul Malik Ishak, Azhar Ma'ah JJCA) [2012] 6 CLJ 383 [CA]

Sentence - Adequacy - Statutory rape - Young offender - Releasing offender on probation of good conduct - Whether adequate and appropriate - Binding over order substituted by High Court with sentence of imprisonment - Whether High Court erred in law and principle - Criminal Procedure Code, s. 294
Nor Afizal Azizan v. PP
(Raus Sharif PCA, KN Segara, Azhar Ma'ah JJCA) [2012] 6 CLJ 370 [CA]

Sentence - Principles - Statutory rape - Young offender - Releasing offender on probation of good conduct - Whether prejudicing principles of sentencing - Criminal Procedure Code, s. 294 - Effect and consequence
Nor Afizal Azizan v. PP
(Raus Sharif PCA, KN Segara, Azhar Ma'ah JJCA) [2012] 6 CLJ 370 [CA]

EVIDENCE

Witness - Failure to call material witness - Facts and circumstances of case - Whether calling or non-calling of material witness affected prosecution's case - Whether adverse inference under s. 114(g) Evidence Act 1950 could be invoked
Teng Kok Soeng & Anor v. PP
(Hasan Lah, Abdul Malik Ishak, Azhar Ma'ah JJCA) [2012] 6 CLJ 383 [CA]

INSURANCE

Fire insurance - Claim on policy - Whether plaintiff suffered total loss or damage - Whether house completely burnt and unfit for human habitation - Whether defendant liable to pay plaintiff insured sum of RM600,000 - Asean Security Paper Mills Sdn Bhd v. CGU Insurance Bhd
Dayang Raihan Pg Hj Ahmad Raffae v. Malaysia British Assurance Bhd
(Abdul Rahman Sebli J) [2012] 6 CLJ 417 [HC]

TRADE MARKS

Registration - Application for registration of trade mark - Respondent was proprietor of 'Giordano' trade marks in Classes 13, 18 and 25 - Established goodwill and reputation - Appellant applied for registration of 'Giordano' trade mark for optical and sunglasses in Class 9 - Respondent filed opposition against registration - Factors to consider - Date of application for registration of trade mark - Whether onus on appellant to prove he was entitled to register - Whether appellant's use of trade mark in Class 9 can lead to deception or confusion - Trade Marks Act 1976, s. 14(1)(a)
Yong Teng Hing B/S Hong Kong Trading Co & Anor v. Walton International Ltd
(Zulkefli Makinudin CJ (Malaya), Hashim Yusoff, Ahmad Maarop, Hasan Lah FCJJ, Zaleha Zahari JCA) [2012] 6 CLJ 337 [FC]

Legal Network Series Articles

1. KEYNOTE ADDRESS^{[Read excerpt]}
    by: Lord Neuberger Of Abbotsbury, Master Of The Rolls [2012] 1 LNS(A) lxiii

Principal Acts

Amending Acts

PU(A)

PU(B)