Bulletin_42

CLJ Bulletin, Issue 2010, Vol 42

29 October 2010

CLJ Law Malaysia

http://www.cljlaw.com

Introduction:
To get the most out of this law bulletin join CLJ Law Online now - http://www.cljlaw.com/?page=subscription
Feel free to forward this to your colleagues. Get this bulletin as email by going to http://www.cljlaw.com/?page=bulletinsubscribe

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 2) 2010

1. Legislation Highlights

PU(A)

NUMBER TITLE DATE COMING INTO FORCE
PRINCIPAL ACT NO

PU(A) 357/2010 Factories And Machinery (Exemption To Petronas Gas Berhad Gas Processing Plant 2 Complex A, Kerteh, Terengganu) Order 2010 21 October 2010 ACT 139

PU(A) 358/2010 Customs (Values Of Imported Completely Built-Up Motor Vehicles) (New) (Amendment) Order 2010 21 October 2010 ACT 235

PU(A) 359/2010 Customs (Values) (Crude Petroleum Oil) (No 21) Order 2010 21 October 2010 ACT 235

PU(A) 360/2010 Customs (Values) (Palm Oil) (No 43) Order 2010 25 October 2010 ACT 235

PU(A) 361/2010 Pembangunan Sumber Manusia Berhad (Exemption) Order 2010 25 October 2010 ACT 612

PU(B)

NUMBER TITLE DATE COMING INTO FORCE
PRINCIPAL ACT NO

PU(B) 440/2010 Second Variation To The Scheme For The Operation, Promotion And Management Of Toto Betting 6 Out Of 52 2010 21 October 2010 ACT 384

PU(B) 441/2010 Appointment Of Deputy Public Prosecutor 21 October 2010 ACT 593

PU(B) 442/2010 Notice To Third Parties 21 October 2010 ACT 613

PU(B) 443/2010 Optical Regulations 1994 22 October 2010 ACT 469

PU(B) 444/2010 Notice Under Subregulation 15(2) Polling Districts, Polling Stations And Polling Hours - Batu Sapi, Sabah 22 October 2010 ACT 19

2. Articles

a) Legal Network Series Articles

1. The Voice Of The Child: Children's "Rights" In Family Proceedings ^{[Read
excerpt]}
By Sir Mark Potter President Of The Family Division*

3. Latest Cases

a) Legal Network Series

CITATION TITLE SUBJECT

[2010] 1 LNS 243 [CA] Abdul Aziz Lela v. PP

EVIDENCE: Burden of proof - Prima facie case - Appellant found guilty and sentenced to death under s. 302 of the Penal Code for killing his wife - Reliance on circumstantial evidence - Two cigarette butts found at scene contained appellant's DNA - SMS was sent from the deceased's SIM card with the card later found in the appellant's Mercedes Benz - Whether based on the adduced evidence a prima facie case was established - Complete break in chain of evidence - Discrepancies in number of exhibits - Appellant's intention to remarry - Whether sufficient motive to commit offence

EVIDENCE: Burden of proof - Alibi - Defence raised by appellant - Window of opportunity eight hours - Appellant near alleged scene of the murder at material time - Defence of alibi required him to be anywhere except the scene of the crime at the time of its commission - Whether defence of alibi could stand

[2010] 1 LNS 239 [HC] Wong Teck Sern v. Menteri Dalam Negeri, Malaysia & Anor

CRIMINAL PROCEDURE: Habeas corpus - Application for habeas corpus - Emergency (Public Orders and Prevention of Crime) Ordinance 1969, detention under - Whether there was infringement of fundamental rights of the applicant under Article 5 of the Federal Constitution - Whether there was procedural non-compliance on the Minister's part of the Ordinance and Rules thereof - Whether an arrest not followed by a charge in the court of law is considered as procedural non-compliance and affects the validity of the Minister's detention order made under s. 4 (1) of the Ordinance - Alibi issue not relevant to obtain a writ of habeas corpus - Whether applicant informed of his rights to make representation and served with the proper representation forms when detention order was served

[2010] 1 LNS 323 [HC] Chin Soo Ling & Ors v. Teh Lay Gaik

CIVIL PROCEDURE: Damages - Proof of - Defendant counterclaiming for loss resulting from plaintiff's lodgement of caveat preventing grant of probate - Loan and overdraft interest and bank charges during period of lodgement - Difference between bank-sale value and market value of properties - City council assessment rates - Duty to mitigate loss - Costs

CIVIL PROCEDURE: Counterclaim - Proof - Plaintiffs withdrawing claim against defendant - Whether defendant's counterclaim established - Whether admitted - Whether defendant must prove counterclaim - Order as to assessment of damages - Order as to costs, whether should be made

SUCCESSION: Executors - Powers of - Capacity to bring action - Grant of probate - Whether executor can bring action before grant of probate

[2009] 1 LNS 312 [HC] Universiti Teknologi Malaysia v. Maraya Sdn Bhd

CONTRACT: Construction of terms of contract - Force majeure clause - Late delivery of flats by builder - Defence of force majeure - Meaning of force majeure - Whether financial crisis within definition

CONTRACT: Breach - Damages - Liquidated and unliquidated - Late delivery of flats resulting in loss of rental income - Damages for late delivery awarded - Whether plaintiff also entitled to damages for loss of rental income

[2009] 1 LNS 329 [HC] IOI Edible Oils Sdn Bhd v. Sabah Ports Sdn Bhd & Anor

CIVIL LAW ACT: Interest - Discretionary interest - Whether discretionary interest payable on sums for the period between date when cause of action arose and date of judgment - Principles to be applied

CIVIL PROCEDURE: Interest - Discretionary interest - Whether discretionary interest payable on sums for the period between date when cause of action arose and date of judgment - Principles to be applied

CITATION	TITLE	SUBJECT
[2010] 1 LNS 243 [CA]	Abdul Aziz Lela v. PP	EVIDENCE: Burden of proof - Prima facie case - Appellant found guilty and sentenced to death under s. 302 of the Penal Code for killing his wife - Reliance on circumstantial evidence - Two cigarette butts found at scene contained appellant's DNA - SMS was sent from the deceased's SIM card with the card later found in the appellant's Mercedes Benz - Whether based on the adduced evidence a prima facie case was established - Complete break in chain of evidence - Discrepancies in number of exhibits - Appellant's intention to remarry - Whether sufficient motive to commit offence EVIDENCE: Burden of proof - Alibi - Defence raised by appellant - Window of opportunity eight hours - Appellant near alleged scene of the murder at material time - Defence of alibi required him to be anywhere except the scene of the crime at the time of its commission - Whether defence of alibi could stand
[2010] 1 LNS 239 [HC]	Wong Teck Sern v. Menteri Dalam Negeri, Malaysia & Anor	CRIMINAL PROCEDURE: Habeas corpus - Application for habeas corpus - Emergency (Public Orders and Prevention of Crime) Ordinance 1969, detention under - Whether there was infringement of fundamental rights of the applicant under Article 5 of the Federal Constitution - Whether there was procedural non-compliance on the Minister's part of the Ordinance and Rules thereof - Whether an arrest not followed by a charge in the court of law is considered as procedural non-compliance and affects the validity of the Minister's detention order made under s. 4 (1) of the Ordinance - Alibi issue not relevant to obtain a writ of habeas corpus - Whether applicant informed of his rights to make representation and served with the proper representation forms when detention order was served
[2010] 1 LNS 323 [HC]	Chin Soo Ling & Ors v. Teh Lay Gaik	CIVIL PROCEDURE: Damages - Proof of - Defendant counterclaiming for loss resulting from plaintiff's lodgement of caveat preventing grant of probate - Loan and overdraft interest and bank charges during period of lodgement - Difference between bank-sale value and market value of properties - City council assessment rates - Duty to mitigate loss - Costs CIVIL PROCEDURE: Counterclaim - Proof - Plaintiffs withdrawing claim against defendant - Whether defendant's counterclaim established - Whether admitted - Whether defendant must prove counterclaim - Order as to assessment of damages - Order as to costs, whether should be made SUCCESSION: Executors - Powers of - Capacity to bring action - Grant of probate - Whether executor can bring action before grant of probate
[2009] 1 LNS 312 [HC]	Universiti Teknologi Malaysia v. Maraya Sdn Bhd	CONTRACT: Construction of terms of contract - Force majeure clause - Late delivery of flats by builder - Defence of force majeure - Meaning of force majeure - Whether financial crisis within definition CONTRACT: Breach - Damages - Liquidated and unliquidated - Late delivery of flats resulting in loss of rental income - Damages for late delivery awarded - Whether plaintiff also entitled to damages for loss of rental income
[2009] 1 LNS 329 [HC]	IOI Edible Oils Sdn Bhd v. Sabah Ports Sdn Bhd & Anor	CIVIL LAW ACT: Interest - Discretionary interest - Whether discretionary interest payable on sums for the period between date when cause of action arose and date of judgment - Principles to be applied CIVIL PROCEDURE: Interest - Discretionary interest - Whether discretionary interest payable on sums for the period between date when cause of action arose and date of judgment - Principles to be applied

b. CLJ Volume 8 (Part 2) 2010

COURT

FEDERAL COURT

Mary Colete John v. South East Asia Insurance Bhd
(Civil Procedure - Appeal - Appeal to Federal Court - Fact, finding of) [2010] 8 CLJ 129

COURT OF APPEAL

Selvaraju Mudaliar Kalliparamal v. PP
(Criminal Law - Murder - Defence) [2010] 8 CLJ 160

HIGH COURT

Islamic Financial Services Board v. Marlin Fairol Mohd Faroque & Anor
(Labour Law - Industrial Court - Jurisdiction, challenges to) [2010] 8 CLJ 173

Lee Chew Mee v. Ng Kok Kwang & Anor
(Administrative Law - Exercise of judicial functions - Judicial review) [2010] 8 CLJ 192

Legasri Purana Chandran v. Sreepathy Ganapathy Krishan Iyer
(Contempt of court - Breach of terms of court order) [2010] 8 CLJ 208

Tan Han Hua & Anor v. Arularasu Balakrishnan & Ors
(Criminal Procedure - Arrest - Remand order) [2010] 8 CLJ 227

Tan Sri Dato' Seri Musa Dato' Hj Hassan v. Dato' Seri Anwar Ibrahim
(Striking out - Writ of summons and statement of claim) [2010] 8 CLJ 239

Ultra Dimension Sdn Bhd v. Ketua Pengarah, Lembaga Penggalakan Pelancongan Malaysia & Ors
(Infringement - Establishing infringement) [2010] 8 CLJ 245

SUBJECT INDEX

ADMINISTRATIVE LAW

Exercise of judicial functions - Judicial review - Certiorari - Failure of Malaysian Medical Council to provide grounds for its decision in dismissing charge against medical practitioner - Whether judicial review ought to be allowed - Medical Act s. 29(2)
Lee Chew Mee v. Ng Kok Kwang & Anor
(Mohd Zawawi Salleh J) [2010] 8 CLJ 192 [HC]

Exercise of judicial functions - Judicial review - Jurisdiction of High Court - Whether High Court can disturb findings of fact by decision making tribunal - Fact presenting possibility of drawing two inconsistent conclusions - Whether High Court can interfere with conclusion reached by decision making tribunal - Whether procedural impropriety, illegality or irrationality demonstrated
Lee Chew Mee v. Ng Kok Kwang & Anor
(Mohd Zawawi Salleh J) [2010] 8 CLJ 192 [HC]

Judicial review - Certiorari - Locus standi - Application for certiorari to quash decision of Malaysian Medical Council (MMC) - MMC dismissing complaint made in relation to death of patient - Whether executrix or administrator of estate of deceased patient has locus standi to seek judicial review of MMC's decision
Lee Chew Mee v. Ng Kok Kwang & Anor
(Mohd Zawawi Salleh J) [2010] 8 CLJ 192 [HC]

CIVIL PROCEDURE

Appeal - Appeal to Federal Court - Fact, finding of - High Court made a finding of fact that appellant was an independent contractor and the Court of Appeal affirmed this decision - Whether there was any cogent reason for the Federal Court to state that the findings on law or fact have been erroneous such that there was ground to warrant intervention on the justice of the case - Appellant was engaged for a specific purpose - Appraisal of the whole nature of the relationship of the parties - Whether questions posed to the court seek to import words that are not there and to freely interpret the law to suit a view favorable to the appellant - Whether permissible to deviate from terms of legislation
Mary Colete John v. South East Asia Insurance Bhd
(Alauddin Mohd Sheriff PCA, Mohd Ghazali Yusoff & Heliliah Mohd Yusof FCJJ) [2010] 8 CLJ 129 [FC]

Contempt of court - Breach of terms of court order - Whether wife who was in contempt of the court order should be heard by this court - Strong justification, based on considerations of public policy, not to allow wife to be heard in the inter partes proceedings - Wife left the jurisdiction of this court, in breach of a decree nisi - Wife refused to allow the husband access to the child - Wife remained outside the jurisdiction of the court with the child - Whether wife clearly intends to frustrate and deny the husband all contact and access to his daughter
Legasri Purana Chandran v. Sreepathy Ganapathy Krishan Iyer
(Yeoh Wee Siam JC) [2010] 8 CLJ 208 [HC[

Locus standi - Application for certiorari to quash decision of Malaysian Medical Council (MMC) - MMC dismissing complaint made in relation to death of patient - Whether executrix or administrator of estate of deceased patient has locus standi to seek judicial review of MMC's decision
Lee Chew Mee v. Ng Kok Kwang & Anor
(Mohd Zawawi Salleh J) [2010] 8 CLJ 192 [FC]

Striking out - Writ of summons and statement of claim - Application for - Whether absolute privilege extends to similar statements made at different occasions and place other than occasion of making police report
Tan Sri Dato' Seri Musa Dato' Hj Hassan v. Dato' Seri Anwar Ibrahim
(Prasad Sandosham Abraham JC) [2010] 8 CLJ 239 [HC]

COPYRIGHT

Affidavit - Contents - Whether true copy of work infringed must be annexed to affidavit - Whether failure to annex original photograph to affidavit rendered affidavit defective and invalid - Copyright Act 1987, s. 42(1)(a)
Ultra Dimension Sdn Bhd v. Ketua Pengarah, Lembaga Penggalakan Pelancongan Malaysia & Ors
(Azahar Mohamed J) [2010] 8 CLJ 245 [HC]

Infringement - Establishing infringement - Ownership of copyright in photograph not established - Plaintiff no locus standi to sue for infringement - Copyright Act 1987, s. 37
Ultra Dimension Sdn Bhd v. Ketua Pengarah, Lembaga Penggalakan Pelancongan Malaysia & Ors
(Azahar Mohamed J) [2010] 8 CLJ 245 [HC]

Infringement - Establishing infringement - Statutory protection against copyright infringement claim - Photograph used by Malaysian Tourism Promotion Board in brochure published to public to promote tourism - No profit derived from publication and distribution of brochure - Whether Board accorded statutory protection under Copyright Act 1987 s. 13(2)(i)
Ultra Dimension Sdn Bhd v. Ketua Pengarah, Lembaga Penggalakan Pelancongan Malaysia & Ors
(Azahar Mohamed J) [2010] 8 CLJ 245 [HC]

Infringement - Ownership of copyright - Whether ownership proven - Copyright in photograph - Whether ownership may be established without aid of Copyright Act 1987, s. 42 - Material discrepancy in evidence concerning who actually took photograph in question - More than one party collaborating to create photograph - Ownership of copyright not established
Ultra Dimension Sdn Bhd v. Ketua Pengarah, Lembaga Penggalakan Pelancongan Malaysia & Ors
(Azahar Mohamed J) [2010] 8 CLJ 245 [HC]

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
Selvaraju Mudaliar Kalliparamal v. PP
(Suriyadi Halim Omar, Hasan Lah JCA & Ahmad Maarop JJCA) [2010] 8 CLJ 160 [CA]

CRIMINAL PROCEDURE

Arrest - Remand order - Validity of the arrest - Whether arrest by 3rd defendant unlawful, illegal and capricious - There was a reasonable suspicion on 3rd defendant's part that both the plaintiffs had committed the offence complained of by the 1st defendant - Plaintiffs' arrest was proper and lawful in the circumstances - Validity of the remand - Whether remand was lawfully passed by the magistrate - Whether warrant of remand wrongly granted or totally unconstitutional in the absence of any evidence to the contrary
Tan Han Hua & Anor v. Arularasu Balakrishnan & Ors
(Ahmadi Asnawi JC) [2010] 8 CLJ 227 [HC]

Police investigation - Police report - Whether 1st defendant has the right and basis to lodge the police report - Report lodged only after third cheque was also dishonoured - Whether there was real basis for 1st defendant to lodge the report that his company was being cheated
Tan Han Hua & Anor v. Arularasu Balakrishnan & Ors
(Ahmadi Asnawi JC) [2010] 8 CLJ 227 [HC]

FAMILY LAW

Children - Custody - Access - Maintenance - Variation of the court's orders on custody - Whether there has been any material change in the circumstances that justifies a variation of the terms of the decree nisi - Sole guardianship and custody of the child - Welfare and in the interest of the child - Consideration of - Consequential order that husband ceases to pay maintenance for the child to the wife
Legasri Purana Chandran v. Sreepathy Ganapathy Krishan Iyer
(Yeoh Wee Siam JC) [2010] 8 CLJ 208 [HC]

Maintenance - Wife - Child - Variation of the court's orders on maintenance - Whether there has been any material change in the circumstances that justifies a variation of the terms of the decree nisi - Justification to allow husband's application to cease paying maintenance for the wife as a result of the material change in the circumstances caused by the wife in leaving the jurisdiction of the court
Legasri Purana Chandran v. Sreepathy Ganapathy Krishan Iyer
(Yeoh Wee Siam JC) [2010] 8 CLJ 208 [HC]

INSURANCE

Motor insurance - Insurer's liability - Key words in dispute are "contract of employment" - Employer's liability policy - Risk to be covered for passengers carried in a vehicle as opposed to any other injured third parties
Mary Colete John v. South East Asia Insurance Bhd
(Alauddin Mohd Sheriff PCA, Mohd Ghazali Yusoff & Heliliah Mohd Yusof FCJJ) [2010] 8 CLJ 129 [FC]

LABOUR LAW

Industrial Court - Jurisdiction, challenges to - Employee employed by Islamic Financial Services Board - Dismissal of employee - Whether employer a statutory body with immunity from legal process - Whether Industrial Court seised of jurisdiction to adjudicate claim against dismissal - Point at which challenge as to jurisdiction ought to be taken - Whether court must hear merits of suit before adjudicating on jurisdiction - Industrial Relations Act 1967 s. 20(3), s. 52 - Islamic Financial Services Board Act 2002 s. 7
Islamic Financial Services Board v. Marlin Fairol Mohd Faroque & Anor
(Mohamad Ariff Yusof J) [2010] 8 CLJ 173 [HC]

Industrial Relations Act 1967 - Application - Provisions of Act not applicable to statutory authorities - Whether international organisations established under international agreement statutory authorities - Industrial Relations Act 1967 s. 52
Islamic Financial Services Board v. Marlin Fairol Mohd Faroque & Anor
(Mohamad Ariff Yusof J) [2010] 8 CLJ 173 [HC]

PROFESSIONS

Medical practitioners - Professional misconduct - Domestic tribunal - Locus Standi - Complainant of infamous conduct against medical practitioner - Whether complaint to Malaysian Medical Council may be made by executrix or administrator of estate of deceased patient - Medical Regulations 1974, reg. 27
Lee Chew Mee v. Ng Kok Kwang & Anor
(Mohd Zawawi Salleh J) [2010] 8 CLJ 192 [HC]

Medical practitioners - Professional misconduct - Domestic tribunal - Procedure - Whether Malaysian Medical Council must provide grounds for its decision in dismissing charge against medical practitioner - Medical Act s. 29(2)
Lee Chew Mee v. Ng Kok Kwang & Anor
(Mohd Zawawi Salleh J) [2010] 8 CLJ 192 [HC]

STATUTORY INTERPRETATION

Construction of statutes - Section 75(1) of the Road Traffic Ordinance 1958 now superseded by s. 91(1)(bb) of the Road Transport Act 1987 - Term in the insurance policy used same language as in s. 91(1) namely liability is incurred if the person is being carried "by reason of or in pursuance of a contract of employment" - Status of persons who are to be encompassed within the term "contract of employment" - Whether a broader expansive approach should be adopted in interpreting the provision
Mary Colete John v. South East Asia Insurance Bhd
(Alauddin Mohd Sheriff PCA, Mohd Ghazali Yusoff & Heliliah Mohd Yusof FCJJ) [2010] 8 CLJ 129 [FC]

TORT

Conspiracy - Wrongdoings - Allegation of - Whether 3rd defendant conspiring with 1st and 2nd defendants in alleged wrongdoings - Whether 3rd defendant, being the servant or agent of the 4th, 5th and 6th defendants had conspired with 1st and 2nd defendants and proceeded to arrest the plaintiffs without carrying any proper investigation - Whether the 4th, 5th and 6th defendants have allowed themselves to be used by the 1st and 2nd defendants to exert pressure on the plaintiffs to settle a civil debt - No evidence adduced by plaintiffs to support the allegations - Whether plaintiffs failed to discharge burden on them
Tan Han Hua & Anor v. Arularasu Balakrishnan & Ors
(Ahmadi Asnawi JC) [2010] 8 CLJ 227 [HC]

WORDS AND PHRASES

Definition of ‘other legal process' - Whether includes proceedings in Industrial Courts - Islamic Financial Services Board Act 2002 para. 1 of Part I of Schedule
Islamic Financial Services Board v. Marlin Fairol Mohd Faroque & Anor
(Mohamad Ariff Yusof J) [2010] 8 CLJ 173 [HC]

Definition of ‘statutory authority' - Whether limited to public bodies which are incorporated under statute to perform public functions - Whether includes international organisations established under international agreement - Industrial Relations Act 1967 s. 52
Islamic Financial Services Board v. Marlin Fairol Mohd Faroque & Anor
(Mohamad Ariff Yusof J) [2010] 8 CLJ 173 [HC]

CASE OF THE WEEK

NEIL DUNCAN GILLIES & ANOR v. LIEW MEI LING & ORS

FAMILY LAW: Adoption - Eligibility to apply for adoption order - Husband and wife applicants were Australian citizens on work pass - Whether "ordinarily resident" under s. 4(3) Adoption Act 1952 to qualify for adoption order

WORDS & PHRASES: "Ordinarily resident" - Interpretation of - Adoption Act 1952, s. 4(3) - Whether applicant with employment pass "ordinarily resident" under s. 4(3) to qualify for adoption order

CLJ Bulletin
To Subscribe/Unsubscribe go to http://www.cljlaw.com/?page=bulletinsubscribe

NUMBER	TITLE	DATE COMING INTO FORCE	PRINCIPAL ACT NO
PU(A) 357/2010	Factories And Machinery (Exemption To Petronas Gas Berhad Gas Processing Plant 2 Complex A, Kerteh, Terengganu) Order 2010	21 October 2010	ACT 139
PU(A) 358/2010	Customs (Values Of Imported Completely Built-Up Motor Vehicles) (New) (Amendment) Order 2010	21 October 2010	ACT 235
PU(A) 359/2010	Customs (Values) (Crude Petroleum Oil) (No 21) Order 2010	21 October 2010	ACT 235
PU(A) 360/2010	Customs (Values) (Palm Oil) (No 43) Order 2010	25 October 2010	ACT 235
PU(A) 361/2010	Pembangunan Sumber Manusia Berhad (Exemption) Order 2010	25 October 2010	ACT 612